On 1 December 2017, the Supreme Court of Appeal ("SCA") upheld an appeal against the decision of the court a quo of Donen AJ in the Western Cape Division in the matter of Stedall v Aspeling (1326/2016)  SCA 172.
In the context of this delictual claim the element of wrongfulness and its application came under a great deal of scrutiny by the SCA, who warned against its conflation with the element of negligence and clarified its importance as a safety net in determining when liability should ensue. More about this later.
The facts which gave rise to the action are summarised below:
On appeal to the SCA, Leach JA, writing for the full court, concluded that:
The court explained the distinction between a negligent act and an omission that causes harm. The distinction being that a negligent omission is not necessarily regarded as prima facie wrongful unless it can be shown that it gives rise to a legal duty to avoid negligently causing harm (as held in the matter of Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA)).
Equally importantly, the SCA reminded parties that, as found in the case of Country Cloud Trading CC v MEC, Department of Infrastructure Development 2015 (1) SA 1 (CC), the element of wrongfulness functions ‘as a brake on liability’ and that conduct is not to be regarded as wrongful if public or legal policy considerations determine that it would be ‘undesirable and overly burdensome to impose liability’.
The issue before the court was therefore whether the failure by the Stedalls to secure the swimming pool gate should be regarded as wrongful. The Aspelings' counsel argued that it was reasonably foreseeable that an unattended child might gain access to the swimming pool and be injured. However, the court held that this contention has the effect of conflating the two elements, as foreseeability should not be taken into account when considering the issue of wrongfulness.
In considering whether the homeowners (the Stedalls) had acted wrongfully, the Court held that one must have regard to constitutional norms (i.e. protecting the best interests of a child), whether the failure to ensure that the gate was secure evokes moral indignation and whether the legal convictions of the community demand that it be regarded as wrongful, alternatively whether it would be overly burdensome to impose such liability.
The cases relied on by the Aspelings to support their case that the legal convictions of the community would hold the homeowners' conduct to be wrongful, concerned situations in which there was public access to potentially dangerous places by children who might not be in the custody and care of a supervising adult. The facts of those cases differed substantially from the present where the child's doting mother was in attendance and therefore did not set a precedent for the homeowners being held liable.
Having considered a number of persuasive decisions, both local and foreign, Leach concluded that the public and legal policy of this country reflected that it would be unreasonable to impose liability in the circumstances of this case and that to hold otherwise would be to expect a host to provide greater supervision than a parent in attendance.
Leach therefore concluded that the Aspelings had failed to establish the element of wrongfulness on the part of the Stedalls. This conclusion has practical application in all matters involving delictual liability and serves as a reminder that even though we all may make mistakes from time to time, it does not necessarily follow that retribution is to be exacted from the wrongdoer.
Equally, we must not lose sight of the fact that at the heart of this judgment lies a young life tragically altered, thus creating a great need for assistance on the part of the young child and her parents. However, the empathy which one has for the young victim and her family must not cloud that which is clear in law and to the extent that it can, society must by other means render assistance to this family.
 quoting Nugent JA in Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) para 12
 Minister of Law and Order v Kadir 1995 (1) SA 303 (A) at 320B-C