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Law of delict 2020 - Answers to activities from beginning to
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law of delict (University of South Africa)
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SELF ASSESSMENT QUESTIONS AND ANSWERS – Law of Delict
STUDY UNIT 2: General introduction
Prescribed book: NEETHLING-POTGIETER-VISSER Law of Delict Seventh Edition
chapter 1 paragraphs 1, 2, 3, 4.1 and 5 and footnotes 12, 14 and 24
READ Prescribed book chapter 1, paragraphs 4.2, 4.3 and 4.4
(1) Define a delict.
the act of a person which, in a wrongful and culpable way, causes harm to another.
(2) Name the elements of a delict (ie the general requirements for delictual liability).
- Act
- Wrongfulness
- Fault
- Causal connection
- Harm / Damage
(3) (a) Name the three actions that are described as the pillars of our law of delict.
- Pain and suffering
- Actio iniurium
- Actio legis acquilae
(b) Indicate precisely which types of compensation can be recovered with each of the actions cited
in (a).
Pain and suffering
Claim: compensation
Actio iniurium
Claim: palinodia or recantatio , ie, demand that the wrongdoer withdraw his words and deny
the truth thereof; as well as a deprecatio , ie an admission of guilt and a request for
forgiveness.
Actio legis acquilae
Claim: compensation for all patrimonial loss caused wrongfully and culpably.
(c) Indicate what form of fault is required for each of the actions cited in (a).
Pain and suffering: culpable act
Actio iniurium: dolus malus or animus iniuriandi
Actio legis acquilae: culpable. (‘‘Culpably’’ includes the concepts of negligence and
intention.) and wrongful act
(d) Indicate which other group of delictual actions is available in our law
classical delictual actions
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(e) Name another remedy – not an action – that may be employed in delictual
cases, and explain how its function differs from that of the delictual actions.
Interdict: it is aimed at preventing harm as opposed to granting compensation.
(4) What is the similarity between delict and breach of contract?
Both are acts whare constituted by the infringement of a legally recognized interest of
another party
(5) What are the reasons for distinguishing between a delict and breach of contract?
Delict:
Practical reason
Remedies: primarily directed at damages or satisfaction.
Constituted: the infringement of any legally recognised interest of another party, excl the non-
fulfilment of a duty to perform by a contractual party.
Area of law: Law of delict.
Breach of contract
Practical reason
Remedies: primarily directed at enforcement, fulfilment, or execution of the contract; a claim
for damages as a remedy only plays a secondary part
Area of Law: breach of contract is not formally treated as part of the law of delict but is
considered to be part of the law of contract.
(6) What appears to be the similarity between a delict and a crime?
Both are wrongful and culpable acts
(7) Name the differences between a delict and a crime.
Delict:
Wrongful act in private law
- compensatory in character, compensating or indemnifying the aggrieved party for the harm the
wrongdoer has caused
Crime:
Wrongful act in public law
- criminal sanctions are of a penal nature, and are intended to punish the criminal for his
transgression against the public interest
(8) Name the fundamental rights relevant to the law of delict that are entrenched in
Chapter 2 of the Constitution of the Republic of South Africa, 1996.
- Human dignity
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- the right to property
- the right to life
- the right to freedom and security of the person (including the right to bodily and
psychological integrity)
- the right to privacy
(9) Explain in a short essay how Chapter 2 of the Constitution may influence the law of
delict directly.
Direct vertical application means that the state must respect and may not infringe on fundamental
rights except when infringement is reasonable and justifiable ito the limitation clause(S36). Direct
horizontal application means that courts must give effect to applicable fundamental rights by
applying, and developing the common law insofar as legislation does not give effect to that right,
except where it is reasonable and justifiable to develop the common law to limit the right in ito s
36. The fundamental rights relevant to the law of delict must be applied in this manner. These
rights include: the right to property, life, freedom and security of the person (incl the right to bodily
and psychological integrity), the right to privacy, human dignity, equality, freedom of expression,
freedom of religion, belief and opinion, the right to assembly, demonstration, picket and petition,
freedom of association, freedom of trade, occupation and profession.
Where two or more of these fundamental rights are in conflict (eg, the right to privacy (fama ) v the
right to freedom of expression, or the right to assembly, demonstration, picket and petition versus
the right to freedom of trade, occupation and profession) there will have to be a careful and correct
balancing or weighing-up of the opposing rights. The entrenchment of fundamental rights in the
BOR enhances their protection and gives them a higher status, in that all law, state actions
(executive or administrative), court decisions and even the conduct of natural and juristic persons
may be tested against them, taking into account s36. In exercising this value judgment (as well as
in the process of weighing-up opposing fundamental rights), the general principles which have
already crystallised in our law with regard to the reasonableness or boni mores (legal convictions
of the community) criterion for delictual wrongfulness may serve as prima facie indications of the
reasonableness of a limitation in terms of the Bill of Rights.
In the case of an infringement of or threat to a fundamental right, a prejudiced person is entitled to
approach a competent court for appropriate relief. In this respect, mention should be made of the
possibility of the development of a so-called “constitutional delict”, ie that the infringement of a
fundamental right per se constitutes a “delict”. A clear distinction should be made between a
constitutional wrong and a delict, even though they may overlap. The requirements for a delict and
those for a constitutional delict differ materially - not every delict is a constitutional wrong, and vice
versa. Unlike a delictual remedy (aimed at compensation), a constitutional remedy (even in the
form of damages) is directed at affirming, enforcing, protecting and vindicating fundamental rights
and at preventing or deterring future violations of Chapter 2. A constitutional wrong and a delict (or
their remedies) should not be treated alike and for conceptual clarity, the term constitutional
“delict” or “tort” should be avoided.
Case law on direct application
An alleged infringement of a fundamental right can in principle be evaluated in a dual inquiry:
Firstly, whether there was a prima facie infringement of the relevant right; and secondly, whether
the infringement can be justified by use of the limitation clause (s 36(1)). The person who alleges
the infringement, bears the onus to prove it. Thereafter the onus is on the infringer to prove that
Downloaded by stephanie anunwa ()
Law of delict 2020 - Answers to activities from beginning to
end of the study guide.
law of delict (University of South Africa)
StuDocu is not sponsored or endorsed by any college or university
Downloaded by stephanie anunwa ()
, lOMoARcPSD|13104670
SELF ASSESSMENT QUESTIONS AND ANSWERS – Law of Delict
STUDY UNIT 2: General introduction
Prescribed book: NEETHLING-POTGIETER-VISSER Law of Delict Seventh Edition
chapter 1 paragraphs 1, 2, 3, 4.1 and 5 and footnotes 12, 14 and 24
READ Prescribed book chapter 1, paragraphs 4.2, 4.3 and 4.4
(1) Define a delict.
the act of a person which, in a wrongful and culpable way, causes harm to another.
(2) Name the elements of a delict (ie the general requirements for delictual liability).
- Act
- Wrongfulness
- Fault
- Causal connection
- Harm / Damage
(3) (a) Name the three actions that are described as the pillars of our law of delict.
- Pain and suffering
- Actio iniurium
- Actio legis acquilae
(b) Indicate precisely which types of compensation can be recovered with each of the actions cited
in (a).
Pain and suffering
Claim: compensation
Actio iniurium
Claim: palinodia or recantatio , ie, demand that the wrongdoer withdraw his words and deny
the truth thereof; as well as a deprecatio , ie an admission of guilt and a request for
forgiveness.
Actio legis acquilae
Claim: compensation for all patrimonial loss caused wrongfully and culpably.
(c) Indicate what form of fault is required for each of the actions cited in (a).
Pain and suffering: culpable act
Actio iniurium: dolus malus or animus iniuriandi
Actio legis acquilae: culpable. (‘‘Culpably’’ includes the concepts of negligence and
intention.) and wrongful act
(d) Indicate which other group of delictual actions is available in our law
classical delictual actions
Downloaded by stephanie anunwa ()
, lOMoARcPSD|13104670
(e) Name another remedy – not an action – that may be employed in delictual
cases, and explain how its function differs from that of the delictual actions.
Interdict: it is aimed at preventing harm as opposed to granting compensation.
(4) What is the similarity between delict and breach of contract?
Both are acts whare constituted by the infringement of a legally recognized interest of
another party
(5) What are the reasons for distinguishing between a delict and breach of contract?
Delict:
Practical reason
Remedies: primarily directed at damages or satisfaction.
Constituted: the infringement of any legally recognised interest of another party, excl the non-
fulfilment of a duty to perform by a contractual party.
Area of law: Law of delict.
Breach of contract
Practical reason
Remedies: primarily directed at enforcement, fulfilment, or execution of the contract; a claim
for damages as a remedy only plays a secondary part
Area of Law: breach of contract is not formally treated as part of the law of delict but is
considered to be part of the law of contract.
(6) What appears to be the similarity between a delict and a crime?
Both are wrongful and culpable acts
(7) Name the differences between a delict and a crime.
Delict:
Wrongful act in private law
- compensatory in character, compensating or indemnifying the aggrieved party for the harm the
wrongdoer has caused
Crime:
Wrongful act in public law
- criminal sanctions are of a penal nature, and are intended to punish the criminal for his
transgression against the public interest
(8) Name the fundamental rights relevant to the law of delict that are entrenched in
Chapter 2 of the Constitution of the Republic of South Africa, 1996.
- Human dignity
Downloaded by stephanie anunwa ()
, lOMoARcPSD|13104670
- the right to property
- the right to life
- the right to freedom and security of the person (including the right to bodily and
psychological integrity)
- the right to privacy
(9) Explain in a short essay how Chapter 2 of the Constitution may influence the law of
delict directly.
Direct vertical application means that the state must respect and may not infringe on fundamental
rights except when infringement is reasonable and justifiable ito the limitation clause(S36). Direct
horizontal application means that courts must give effect to applicable fundamental rights by
applying, and developing the common law insofar as legislation does not give effect to that right,
except where it is reasonable and justifiable to develop the common law to limit the right in ito s
36. The fundamental rights relevant to the law of delict must be applied in this manner. These
rights include: the right to property, life, freedom and security of the person (incl the right to bodily
and psychological integrity), the right to privacy, human dignity, equality, freedom of expression,
freedom of religion, belief and opinion, the right to assembly, demonstration, picket and petition,
freedom of association, freedom of trade, occupation and profession.
Where two or more of these fundamental rights are in conflict (eg, the right to privacy (fama ) v the
right to freedom of expression, or the right to assembly, demonstration, picket and petition versus
the right to freedom of trade, occupation and profession) there will have to be a careful and correct
balancing or weighing-up of the opposing rights. The entrenchment of fundamental rights in the
BOR enhances their protection and gives them a higher status, in that all law, state actions
(executive or administrative), court decisions and even the conduct of natural and juristic persons
may be tested against them, taking into account s36. In exercising this value judgment (as well as
in the process of weighing-up opposing fundamental rights), the general principles which have
already crystallised in our law with regard to the reasonableness or boni mores (legal convictions
of the community) criterion for delictual wrongfulness may serve as prima facie indications of the
reasonableness of a limitation in terms of the Bill of Rights.
In the case of an infringement of or threat to a fundamental right, a prejudiced person is entitled to
approach a competent court for appropriate relief. In this respect, mention should be made of the
possibility of the development of a so-called “constitutional delict”, ie that the infringement of a
fundamental right per se constitutes a “delict”. A clear distinction should be made between a
constitutional wrong and a delict, even though they may overlap. The requirements for a delict and
those for a constitutional delict differ materially - not every delict is a constitutional wrong, and vice
versa. Unlike a delictual remedy (aimed at compensation), a constitutional remedy (even in the
form of damages) is directed at affirming, enforcing, protecting and vindicating fundamental rights
and at preventing or deterring future violations of Chapter 2. A constitutional wrong and a delict (or
their remedies) should not be treated alike and for conceptual clarity, the term constitutional
“delict” or “tort” should be avoided.
Case law on direct application
An alleged infringement of a fundamental right can in principle be evaluated in a dual inquiry:
Firstly, whether there was a prima facie infringement of the relevant right; and secondly, whether
the infringement can be justified by use of the limitation clause (s 36(1)). The person who alleges
the infringement, bears the onus to prove it. Thereafter the onus is on the infringer to prove that
Downloaded by stephanie anunwa ()
