Where D is a public authority carrying out a function authorised by statute it will not be liable for harm caused by carrying out this function provided that it actswithout negligence. There may, however, be immunities contained in the empowering legislation for harm negligently inflicted.
In Van Buuren v Minister of Transport 2000 (1) ZLR 292 (H) P’s aeroplane had been badly damaged when it fell into a hole when taxiing across a grass patch at an aerodrome. In a claim for damages for negligence, P argued that the Ministry had been negligent in failing to comply with its statutory duty to maintain the aerodrome in a safe condition. The court held that the Ministry had permissive discretionary powers under the statutory provisions in question. Where the Ministry is not positively enjoined to do something and is merely given permissive powers to do something, not duty to act positively can be implied. A litigant who contends that the legislature intended to impose an obligation bears the onus of showing that a duty can be implied from the wording of the statute. The power given to the Minister was discretionary. The Minister could not be directed to exercise these powers. The statute thus did not create a duty giving rise to delictual liability. The Minister’s liability could only arise if the exercise of his statutory power caused injury to another and the power had been exercised negligently.
Seealso Knop v Johannesburg City Council 1995 (2) SA 1 (A).