Law 11: Case Analysis of Sewerpersad v. Tellecoms - Law of Delict

This case study analyzes the legal matter of Ronald Sewerpersad versus Tellecoms, focusing on the Law of Delict in South Africa. The case involves a 10-year-old girl, Dia, who sustained injuries after falling into an uncovered hole dug by Tellecoms for cable installation. The analysis examines the elements of delict, including conduct, wrongfulness, fault (negligence), causation, and damage. The plaintiff, acting on behalf of his daughter, claims damages for medical expenses, future medical costs, and non-patrimonial loss due to post-traumatic stress and physical injuries. The document explores the particulars of the breach of duty, the negligence of Tellecoms, and the application of relevant case law to support the claims. It provides a detailed breakdown of the damages sought, including hospital expenses, medical costs, and non-patrimonial losses. The case highlights the importance of establishing all five elements of delict for a successful claim. The plaintiff seeks an order for payment of expenses and damages, as well as an order against the defendant for the amounts specified in the particulars of claim.

Running Head: Law 1
Law

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IN THE HIGH COURT OF SOUTH AFRICA
Case no: ***********
In the matter between
RONALD SEWERPERSAD Plaintiff
and
TELLECOMS Defendant
Defendant is summoned and must deliver notice of intention for the purpose of defend this action
and answer the claim within the period of 5 days from the date of the service of summon to the
plaintiff at the address stated in this claim and to the Clerk of the aforesaid court.
PARTICULARS OF CLAIM
Parties:
1. The plaintiff is Ronald Sewerpersad, residing at 89, Centuria building, Von Avenue
Willich, Centurion, Gauteng, and acting in his representative capacity as father his minor
daughter, Dia, residing at same address.
2. The defendant is Tellecoms (Pty) Ltd, a company with limited liability and incorporated
as per the provisions under Companies Act 71 of 2008, having its registered office within
the Court’s jurisdiction at 45 vahang Avenue, Gauteng.
Particulars of claim:

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3. On 16th August 2017 Dia (10 year) with her sister Aditi (12 year) and child minder Nancy
Beukes goes to the school by walking through their general route. They are attending the
school after three week holidays, and that day was more cloudy and darker as compared
to other days. Just a block away from school, Nancy fell into the hole and she also
dragged Aditi and Dia with her in the hole. All three girls fell into a whole that was so
deep that it was not possible for them to get out of the whole by their own. Nancy rings
Mr. Ronald Sewpersad, father of the girls and then Mr. Ronald brings ambulance with
him.
4. The whole was dug by Telecoms, a telecommunications company for the purpose of
installing cables in that area. Mrs. Narnia Macdonald, resides across that road on which
whole was dug by the company provide information to Mr. Ronald that number of
wholes were dug by the company for the purpose of installing cables, but they did not
filled up that whole in which girls fell. This issue was reported by Narnia for three times
and she also send her request through mail to the director of the company but still no
processing for filling the whole was done by the company.
5. Telecoms stated to Narnia that Mr. Samuel Van Zyl, employee of the company forgot to
fill that particular whole. Later, Mr. Samuel Van Zyl went on sick leave. Company
provides surety to the Narnia for filling the whole and told her to be careful till the time.
6. Injury suffered by Dia was caused because of the negligent action of Telecoms, and they
breach their duty under Law of Delict.
Particulars of injury:
7. All three girls admitted to the hospital, and in the hospital they received medical
treatment related to their injuries. Second and third toes of the right foot of Dia were

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fractured, and this injury was treated by putting small pins in both the toes. Dia was
discharged from the hospital after the period of two weeks.
8. Dia was suffering from post-traumatic shock syndrome because of that accident, and she
started to withdraw into herself, wetting her bed, and also denied to attend her school. As
per the prediction made by psychologist of Dia, she required intensive psychotherapy for
the next five years for the purpose of getting normal. She was not walking comfortably
because of the pins inserted in her toes and had to give up ballet.
9. Following are expenses incurred by Ronald Sewpersad’s on behalf of Dia:
Expenses incurred at hospital: R400 000
Expenses incurred for medical: R95 000
Medical expenses incurred in future, which also includes the cost
Of physiotherapy and psychotherapy: R460 000
10. Plaintiff can also claim for Non-patrimonial loss for Rs. 500,000. This can be understood
through case law
Legal definitions:
11. Law of Delict occurs when one party commits any wrong against the other party, and it
include some basic element that are conduct, wrongfulness, fault, causation and damage.
For the purpose of filing claim under law of Delict it is necessary that all these basic
elements must be present in the case.
12. Five basic elements of law of delict:

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a. Conduct- Conduct is considered as voluntary act of human and act of omission, and
following are some characteristics of conduct:
 Act must be conducted by human being
 Human being must perform that act voluntarily
 Conduct must be either in the form of positive act or omission.
b. Wrongfulness- for the purpose of making defendant liable it is necessary that
conduct of the defendant must be wrongful. For the purpose of determining whether
conduct of defendant is wrongful or not, following two questions are considered by
Court:
 Whether any interest of plaintiff is infringed which is legally recognized?
 Whether above stated interest is infringed in wrongful and unreasonable manner?
If answer related to above question is positive then it is considered that interest of the
plaintiff is infringed.
c. Fault- there are two forms of fault and that are intention and negligence. In other
words, defendant can be blamed for his own conduct. However, for the purpose of
blaming person for his own conduct it is necessary to establish whether defendant can
be held accountable.
For making the defendant accountable for his own conduct, it is necessary to find the
difference between right and wrong and whether such person acts as per the
difference. If no accountability of defendant exists, then there is no fault on part of
the defendant.

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Act is done intentionally, if defendant purposely does something which he knows to
be wrong.
Negligence is occurred on part of the defendant when he/she commits any wrongful
act but unintentionally. For this purpose, test is considered in which two questions are
stated:
 Whether conduct of the reasonable person has foreseen the causing damage?
 Whether any measures have been taken by defendant for the purpose of avoiding
damages?
If answers related to above questions are positive then action of defendant is
negligent.
In case law Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431
(SCA), explanation related to negligence was stated by Nugent JA:
Negligence itself was not considered as unlawful, and it becomes unlawful and
actionable only if it occurs in those situations which were recognized as unlawful by
law. If negligence was present in any positive act and it cause physical injury to any
person then such act was considered as negligent and wrongful.
He further stated that negligent omission was considered as unlawful if it only occurs
in those situations which give rise to any legal duty for the purpose of avoiding harm.
Therefore, it was necessary to keep this concept different from concept of fault. In
case, legal duty was recognized by law, and then such omission does not attract

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liability and in attract liability in those situations only in which separate test was
applied.
This can be understood through case law Administrateur, Transvaal v van der Merwe
1994 (4) SA 347 (A) at 364. In this case, Court stated that it was possible to legally
recognize the element of fault only when omission termed as legally wrongful. In
element of wrongful was not present in the case then issue related to fault was not
arise. Both the elements are different under law and each requires own approach.
Therefore, it was not possible to combine these elements in any way, but presence of
one element directly affects the other.
d. Causation- for the purpose of existence of Law of delict, it is necessary that there
must be connection between conduct and damage. In other words, Court determine
whether conduct of the defendant cause any damage.
e. Damage- there are two type of damages, and that are patrimonial (pecuniary) as well
as non-patrimonial (non-pecuniary loss).
Patrimonial loss is able to express in the terms of money, the most important aspect
related to this is mitigation of loss. It is also the duty of plaintiff to prevent any
damage caused by the conduct of the defendant. In case plaintiff fail to take steps for
preventing further damages then it is not possible for plaintiff to claim damages from
defendant. In case plaintiff takes reasonable steps to mitigate the loss then he is able
to recover the cost from defendant in the form of damages.
Non- Patrimonial loss is not expressed in monetary value, but damages given in this
must be in monetary terms.

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Particulars of breach of duty:
13. As referred to point 10 Mr. Ronald Sewerpersad can file claim under Law of Delict
because Telecoms conduct wrong act against the minor daughter of plaintiff Dia.
14. Telecoms breached their duty under Law of delict, as all five elements stated under point
11 was established in this case:
In this case, first element of conduct stated in point 11(a) was present because act was
committed by the employee of Telecoms, Mr. Samuel Van Zyl, as he omits to fill the
whole. Conduct of Mr. Samuel Van Zyl was voluntary in nature.
Second element of wrongfulness stated in point 11(b) was also present because conduct
of Mr. Samuel Van Zyl and telecoms was wrongful. Mrs. Narnia Macdonald report the
issue to the company and also to the director of the company through mail but no action
was taken by company for filling the whole. For the purpose of determining whether
conduct of defendant is wrongful as per test:
 Legally recognized interest related to safety of the Dia was infringed by the
Tellecoms.
 Above stated interest was infringed in wrongful and unreasonable manner.
Answer related to above question was positive. Therefore, it can be considered that
interest of the plaintiff is infringed.
Third element stated in point 11 (c), fault was also present in this case because it was
possible to blame the defendant for his own conduct, and defendant was accountable also

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because it was not right to left the whole unfilled. It was reasonable and foreseeable that
any person can fell into the whole.
It is the clear case of negligence because conduct of Telecom cause damage was
foreseeable in nature, and company fails to take any measures for the purpose of avoiding
damages.
Point 11 (4), causation was also present in this case because there was clear connection
between the conduct and damage. In other words, Telecom fails to perform their duty and
does not take any measures to fill the whole because of which Dia and other two girls fell
into the whole. Conduct of Telecoms causes serious toe injuries and post-traumatic shock
syndrome to the Dia.
Element stated in point 11 (5), damage was present because Dia suffered both
Patrimonial loss and Non- Patrimonial loss in this case. Mr. Ronald claim for 75000. In
case Mngomezulu v Minister of Law And Order (6373/2007) [2014] ZAKZDHC 34 (8
August 2014), plaintiff stated that she was taking counseling from psychiatric because of
her daughter’s death and she seeks damages in the amount of 75000 for emotional shock.
Therefore, Mr. Ronald can claim for 75000 for the emotional shock suffered by Dia.
There is one more case which deals with the damages amount of on-patrimonial loss that
is Binns-Ward J in Ng Pan Hing and others v Road Accident Fund [2014] 2 All SA 186.
In this case, court consider the amount of claim made by plaintiff in emotional shock, and
Court stated that damages under law of delict in relation to nervous shock or Psychiatric
injury was considered as contentious subject internationally.

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In case, Ki-Xia Ng Pan Hing Vs The Road Accident Fund A 139/2012 first appellant file
claim against the authority for R200000 for the for pain, suffering, disability suffered by
plaintiff.
Therefore, above stated elements are established in this case and Mr. Ronald can file
claim against telecoms under law of delict.
Plaintiff prayer:
15. Therefore, plaintiff file claim against the defendant, and request for:
a. Order against defendant for payment related to expenses stated under paragraph 9
that is R9, 55, 000, and damages related to non-patrimonial loss suffered by Dia
stated under paragraph 14 that is 75000.
b. Order against defendant for paying damages for pain and loss suffered by Dia
stated under paragraph 14 that is 200000. Therefore, Total amount claimed by Mr.
Ronald is 13, 30, 000.
c. Order against defendant for payment of interest on the amount stated in Paragraph
14 (a) at the rate of 10.2% from the date of judgment to date on which payment is
made.
d. Order against defendant for making the payment related to cost of suit.
e. Other reliefs for the injury suffered by Minor.
Notice That:

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If defendant made any default for paying the amount and cost within time period or fails to
serve notice of intention of defend, then it is considered that defendant admitted the said
claim and plaintiff can proceed with the case. It is also possible that judgment can be given
against the defendant in his absence.
If defendant agreed to pay above stated charges then judgment does not held against the
defendant and he will save the cost of suit and other charges.
I, Ronald Sewerpersad, residing at 89, Centuria building, Von Avenue Willich, Centurion, Gauteng,
the above-mentioned Plaintiff, do hereby agree that the decision of the Court in the abovementioned
action shall be final.
Signed on 18th day of August 2017
Signature:
PLAINTIFF
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