CHAPTER 10 - BREACH OF STATUTORY DUTY

The primary question is whether the statute was intended to create a civil right of action.

 

The breach of statutory duty allows a person affected thereby to sue if:

  • he has suffered damage as a result of such breach;
  • he is one of the persons for whose benefit the duty was imposed;
  • the harm caused was within the mischief contemplated by the statute;
  • the statute has not expressly or impliedly excluded the ordinary civil remedy; and
  • the breach of the statute was the proximate cause of the loss.

 

In the case of Patz v Greene 1907 TS 427 the court established the rule that where the Legislature intends to protect the interests of a particular group of persons, then if P is part of that group, he or she does not have to prove that he or she has suffered damage as it will be presumed that he or she has suffered damage. If, on the other hand, the Legislature simply wants to protect the general public interest, P must prove that he or she suffered damage.

 

In the case of Local Authorities Pension Fund v Nyakwawa & Ors 2015 (1) ZLR 103 (H) the court held that although P had referred to a breach of statutory obligations, it did not specify what these statutory provisions were. There were two possible statutes, but even if the plaintiff meant to plead that D breached some of the provisions of those Acts and would therefore be liable to suffer criminal sanction, that breach would still not transform into civil liability to P. As with negligence in the air, this would be “criminality in the air” in relation to P.

 

See also Salisbury Bottling Ltd & Ors v Central African Bottling Ltd 1958 R & N 17; Tobacco Finance Ltd v Zimnat Insurance 1982 (1) ZLR 47 (H); van Buuren v Minister of Transport 2000 (1) ZLR 292 (H); Da Silva v Coutinho 1971 (3) SA 123 (A); and Knop v Johannesburg City Council 1995 (2) SA 1 (A).

 

Burchell in Principles of Delict at p 46 has this helpful comment:

A statute may specifically provide for a civil remedy for damages, specifically provide for a criminal penalty but remain silent on the availability of a civil remedy, remain silent on any means of enforcement or provide for a ‘special’ remedy. Obviously if a statute includes a civil remedy for the enforcement the ordinary principles of liability apply. Where the statute specifically provides for a criminal sanction this does not necessarily exclude the availability of a civil remedy and the intention of the legislature on this matter must be determined. Where the statute remains silent on the means of enforcement it may be presumed that the legislature intended it to be enforceable by ordinary private right of action. Where the statute provides for a ‘special’ remedy there is a strong indication that the legislature intended the special remedy to be the only one.