PVL3703:
Learning unit 2: General Introduction:
What is a delict?
Law of delict is a branch of private law which helps to regulate relations between
individual people. The basic legal principle is that harm (damage) rests where it falls,
meaning that each individual is responsible for the injury they sustain (res perit
domino).
A delict can be defined as when someone intentionally and wrongfully harms another
person.
Legal definition: A delict is the act of a person that in a wrongful and culpable way
causes harm to another
Elements of a delict
• Act
• Wrongfulness
• Culpability
• Causation
• Harm
If a person caused harm to another, it does not constitute a delict, unless it has met
the requirements, also known as the elements of a delict. These elements must be
present before it can be complained that the conduct is a delict.
Important delictual remedies + differences
Actio legis Aquiliae: pertains to patrimonial harm responsibility (damnum iniuria
datum). Requires culpability (forms: intent or negligence). Rooted in Roman law
Actio iniuriarum: concerning liability for injury to personality (iniuria) requires
intent. Rooted in Roman law
Action for pain and suffering: psychological or mental injury is equated with physical
(bodily) injury. Requires either intent or negligence. Rooted in Roman-Dutch law.
,Differences and similarities between a delict and breach of contract
A breach of contract is an act by one person (contracting party) which in a wrongful
and culpable way causes damage to another (contracting party).
Fundamentally the two legal phenomena are different. Only when a contractual party
fails to fulfil a contractual personal right (claim) or performance duty does this
constitute a breach of contract, whereby the primary remedy is directed at
enforcement , fulfilment or the execution of the contract.
The violation of any legally recognized interest of another party, with the exception of
a contractual party's failure to fulfil an obligation to perform, constitutes a delict,
whereby the remedies are directed at damages and not fulfilment.
Differences and similarities between a delict and a crime
The main contrast is the difference between public and private law. Public law is
meant to maintain the public interest, whereas private law is meant to safeguard
individual (private) interests.
Delictual remedies are compensatory in nature, meaning they reimburse the victim of
the offender for the harm they have caused. Criminal penalties, on the other hand,
are punitive in character and are meant to hold the offender accountable for his
violation of the public interest.
Constitutions effect on the law of delict
The Constitution of South Africa is the supreme law of the land, and any law or
conduct which is inconsistent with the constitution is therefore invalid. Chapter 2 of
the Constitution contains the Bill of Rights, which not only binds the state (vertical
application) but also horizontally all juristic and natural persons. A law of universal
applicability may restrict basic rights, but only to the degree that doing so is
acceptable and justified in a free and democratic society founded on equality,
freedom, and human dignity.
The principles that support an open and democratic society founded on equality,
freedom, and human dignity must be upheld by the courts while interpreting Chapter
2's requirements. The courts have the option to consider analogous foreign
legislation in addition to applicable international law during this procedure. In
,addition, the courts must uphold the spirit, purpose, and goals of the Bill of Rights
while interpreting any laws and creating common and customary law.
Direct Application: means that the state must respect the fundamental rights, with the
exception when it is reasonable and justifiable as in the limitation clause. If
legislation does not give effect to a fundamental right, the courts must apply and, if
necessary, develop the common law to give effect to that right. This is known as
"direct horizontal application," unless it is reasonable and justified to develop the
common law to limit the right in accordance with the limitation clause. This is how
the fundamental rights that are pertinent to the law of delict must be applied.
Indirect application: Every private law rule, principle, or standard, including those
governing the law of delict, must be given substance in accordance with the
fundamental principles of Chapter 2. In particular, the so-called open-ended or
flexible delictual principles—the boni mores test for wrongfulness, the imputability
test for legal causation, and the reasonable person test for negligence—may be
heavily influenced by policy considerations and factors like reasonableness, fairness,
and justice. This promotion of the spirit, purpose, and objectives of the bill will most
likely produce the same results as the direct application of the bill. Therefore, the
fundamental principles of Chapter 2 might be successfully applied as significant
policy factors in assessing wrongfulness, legal causation, and negligence. Case law
already makes this strategy clear.
Notes on footnotes:
12: Road Accident Fund v Krawa 2012 2 SA 346 (ECG) 358–359. There are
exceptions because rigid rules cannot govern life. The acceptance of strict liability, or
liability without fault, as opposed to conventional liability, which requires fault, is a
significant advancement in delictual liability over the last eight to ten decades. Strict
responsibility for unjust deprivation of liberty is one example of our legal system.
14: Liability is controlled by basic rules and standards that apply regardless of the
particular interest impaired or the method of impairment under the generalizing
approach of South African delict law. This approach differs from the casuistic
approach of early Roman and English law, which views the law as a collection of
distinct torts (delicts), each with its own set of rules.
, 24: Natal v Edouard 1990 3 SA 581 (A) 597 the Appellate Division stated clearly that
“fault is not a requirement for a claim for damages based upon a breach of contract.
Cf also Van der Walt and Midgley Delict 5 fn 7. In contradistinction, Hutchison and
Pretorius (eds) Contract 276 ff 278 (see also Stoop 1998 THRHR 10 fn 64) maintain
that the statement in Edouard is “a sweeping generalisation” and that fault is indeed
a requirement for most forms of breach of contract apart from repudiation and in
certain instances of positive malperformance. In these cases liability therefore seems
to be strict (see infra 433). It has been suggested that the reasonable person test for
negligence should apply in all cases of a breach of contract
Learning unit 2: General Introduction:
What is a delict?
Law of delict is a branch of private law which helps to regulate relations between
individual people. The basic legal principle is that harm (damage) rests where it falls,
meaning that each individual is responsible for the injury they sustain (res perit
domino).
A delict can be defined as when someone intentionally and wrongfully harms another
person.
Legal definition: A delict is the act of a person that in a wrongful and culpable way
causes harm to another
Elements of a delict
• Act
• Wrongfulness
• Culpability
• Causation
• Harm
If a person caused harm to another, it does not constitute a delict, unless it has met
the requirements, also known as the elements of a delict. These elements must be
present before it can be complained that the conduct is a delict.
Important delictual remedies + differences
Actio legis Aquiliae: pertains to patrimonial harm responsibility (damnum iniuria
datum). Requires culpability (forms: intent or negligence). Rooted in Roman law
Actio iniuriarum: concerning liability for injury to personality (iniuria) requires
intent. Rooted in Roman law
Action for pain and suffering: psychological or mental injury is equated with physical
(bodily) injury. Requires either intent or negligence. Rooted in Roman-Dutch law.
,Differences and similarities between a delict and breach of contract
A breach of contract is an act by one person (contracting party) which in a wrongful
and culpable way causes damage to another (contracting party).
Fundamentally the two legal phenomena are different. Only when a contractual party
fails to fulfil a contractual personal right (claim) or performance duty does this
constitute a breach of contract, whereby the primary remedy is directed at
enforcement , fulfilment or the execution of the contract.
The violation of any legally recognized interest of another party, with the exception of
a contractual party's failure to fulfil an obligation to perform, constitutes a delict,
whereby the remedies are directed at damages and not fulfilment.
Differences and similarities between a delict and a crime
The main contrast is the difference between public and private law. Public law is
meant to maintain the public interest, whereas private law is meant to safeguard
individual (private) interests.
Delictual remedies are compensatory in nature, meaning they reimburse the victim of
the offender for the harm they have caused. Criminal penalties, on the other hand,
are punitive in character and are meant to hold the offender accountable for his
violation of the public interest.
Constitutions effect on the law of delict
The Constitution of South Africa is the supreme law of the land, and any law or
conduct which is inconsistent with the constitution is therefore invalid. Chapter 2 of
the Constitution contains the Bill of Rights, which not only binds the state (vertical
application) but also horizontally all juristic and natural persons. A law of universal
applicability may restrict basic rights, but only to the degree that doing so is
acceptable and justified in a free and democratic society founded on equality,
freedom, and human dignity.
The principles that support an open and democratic society founded on equality,
freedom, and human dignity must be upheld by the courts while interpreting Chapter
2's requirements. The courts have the option to consider analogous foreign
legislation in addition to applicable international law during this procedure. In
,addition, the courts must uphold the spirit, purpose, and goals of the Bill of Rights
while interpreting any laws and creating common and customary law.
Direct Application: means that the state must respect the fundamental rights, with the
exception when it is reasonable and justifiable as in the limitation clause. If
legislation does not give effect to a fundamental right, the courts must apply and, if
necessary, develop the common law to give effect to that right. This is known as
"direct horizontal application," unless it is reasonable and justified to develop the
common law to limit the right in accordance with the limitation clause. This is how
the fundamental rights that are pertinent to the law of delict must be applied.
Indirect application: Every private law rule, principle, or standard, including those
governing the law of delict, must be given substance in accordance with the
fundamental principles of Chapter 2. In particular, the so-called open-ended or
flexible delictual principles—the boni mores test for wrongfulness, the imputability
test for legal causation, and the reasonable person test for negligence—may be
heavily influenced by policy considerations and factors like reasonableness, fairness,
and justice. This promotion of the spirit, purpose, and objectives of the bill will most
likely produce the same results as the direct application of the bill. Therefore, the
fundamental principles of Chapter 2 might be successfully applied as significant
policy factors in assessing wrongfulness, legal causation, and negligence. Case law
already makes this strategy clear.
Notes on footnotes:
12: Road Accident Fund v Krawa 2012 2 SA 346 (ECG) 358–359. There are
exceptions because rigid rules cannot govern life. The acceptance of strict liability, or
liability without fault, as opposed to conventional liability, which requires fault, is a
significant advancement in delictual liability over the last eight to ten decades. Strict
responsibility for unjust deprivation of liberty is one example of our legal system.
14: Liability is controlled by basic rules and standards that apply regardless of the
particular interest impaired or the method of impairment under the generalizing
approach of South African delict law. This approach differs from the casuistic
approach of early Roman and English law, which views the law as a collection of
distinct torts (delicts), each with its own set of rules.
, 24: Natal v Edouard 1990 3 SA 581 (A) 597 the Appellate Division stated clearly that
“fault is not a requirement for a claim for damages based upon a breach of contract.
Cf also Van der Walt and Midgley Delict 5 fn 7. In contradistinction, Hutchison and
Pretorius (eds) Contract 276 ff 278 (see also Stoop 1998 THRHR 10 fn 64) maintain
that the statement in Edouard is “a sweeping generalisation” and that fault is indeed
a requirement for most forms of breach of contract apart from repudiation and in
certain instances of positive malperformance. In these cases liability therefore seems
to be strict (see infra 433). It has been suggested that the reasonable person test for
negligence should apply in all cases of a breach of contract
