The global population is becoming more and more urbanised. South Africa is no exception to this phenomenon. The pressure resulting from the influx into towns is exacerbated by aging infrastructure. At the same time there is a constitutional duty to deliver services and to take legislative steps to give effect to the rights contained in the Bill of Rights. This has had the result that there are two forces of simultaneous pressure on municipalities, namely the delivery of services with regard to the establishment of new infrastructure and the maintenance of existing infrastructure.
Delictual claims against municipalities as a result of failure to maintain infrastructure are not a new phenomenon. Over the past century the test for wrongful omissions has seen much development, often in the context of municipalities, and specifically the failure to maintain infrastructure.
The question raised in this article is whether this development has kept up with the constitutional imperative to develop the common law to promote the “spirit, object and purport” of the Bill of Rights. Apart from the constitutional imperative to develop the common law, the Constitution, as well as legislation, impose a duty on municipalities to provide basic services. The development of liability for omissions is discussed against the background of municipal legislation as well as the Constitution.
Initially “prior conduct” was a requirement for liability for omissions to ensue, but this requirement as a necessary condition for liability for an omission was unequivocally abolished in Minister van Polisie v Ewels 1975 (3) SA 590 (A). Instead, the question which had to be asked was whether, in the light of the legal convictions of the community, there was a legal duty upon the defendant to prevent harm. In Cape Town Municipality v Bakkerud 2000 3 SA 1049 (SCA) the test was confirmed to be applicable to municipalities by the Supreme Court of Appeal.
Since the decision in Bakkerud the test for wrongfulness of omissions has undergone further changes. In a number of decisions the conceptual order of wrongfulness and negligence was changed and the question regarding the wrongfulness of omissions was formulated in such a way as to assume negligence when testing for wrongfulness, such as, for example, in Minister of Safety and Security v Van Duivenboden 2002 6 SA 431 (SCA). In 2006 the test for wrongfulness was reformulated in the case of Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA 2006 1 SA 461 (SCA). In terms of the new test the question was whether it was reasonable under the circumstances to hold the defendant liable. Despite criticism levelled against this test, the courts continued to apply this test, inter alia in cases such as Trustees, Two Oceans Aquarium Trust and very recently in Minister of Police v K (case no. 403/2019)  ZASCA 50 (6 May 2020). The test has also been applied in the context of municipality cases such as Van Vuuren v eThekwini Municipality 2018 1 SA 189 (SCA).
When deciding whether or not government institutions have a legal duty to prevent harm, legislative provisions have, according to Neethling en Potgieter (2015:66–9), to be taken into consideration. A legislative provision in itself is not enough to give effect to a legal duty. It is necessary to look at a multiplicity of factors to establish whether or not there is a legal duty to prevent harm. This was echoed in McIntosh v Premier of the Province of KwaZulu-Natal 2008 6 SA 1 (SCA). In Mashongwa v PRASA 2016 3 SA 528 (CC) the Constitutional Court held that wrongfulness does not flow directly from the infringement of a public law duty, but that the breach of the duty is a factor underlying the development of the private law in recognising a new form of wrongfulness.
The Constitution provides that government in South Africa consists of three interrelated spheres, namely national, provincial and local. The local sphere consists of municipalities that have to be established for the entire country and the executive and legislative powers of a municipality are vested in the municipal council. Municipalities are the owners of infrastructure, such as roads, public amenities, sewage and water and sanitation systems. Infrastructure is regarded as the cornerstone of social upliftment, public health and safety and is regarded as indispensable for economic development through the establishment of properly serviced premises.
The Constitution, according to Bekink (2006:289), creates a broad framework in which specific services that have to be delivered by municipalities, as well as the necessary infrastructure, have to be identified. The legislature is responsible for providing the detail in terms of which these matters are to be governed. Some of the most important laws include the Municipal Systems Act 32 of 2000, the Local Government: Municipal Structures Act 117 of 1998 and Local Government: Municipal Finance Management Act 56 of 2003. All these statutes have as their goal service delivery and development, or the support thereof.
Where failure to deliver a service results in danger, there is a legal duty to prevent harm. Failure to comply with this legal duty can give rise to delictual liability, as was seen in Van Vuuren, where the municipality had failed to provide for supervision at the municipal swimming pool.
The failure of local authorities to hold their officials and politicians accountable has resulted in municipalities not being able to reach their constitutional goals. This in turn has a negative impact on the quality of life of communities. There are two areas in particular where the impact is felt the most, namely the financial well-being of municipalities and the ability to create and maintain infrastructure.
The provisions of sections 1, 2, 8(1) and 39(2) of the Constitution confirm that the law of delict is subordinate to the Constitution. The courts developed general principles of the law of delict in cases such as Carmichele v Minister of Safety and Security 2001 4 SA 938 (CC) to give effect to section 39(2), but the development has not extended to the municipality cases. Apart from the application of section 28 in the Van Vuuren case, the courts have been paying lip service to the Constitution.
Keywords: delictual liability; duty to maintain; local government; municipalities; omissions; services