The Law of Delict
UNIT 2 – General introduction
Define a delict.
• The act of a person which, in a wrongful and culpable way, causes harm to another.
Elements of a delict – All 5 elements/requirements must be present.
• Act
• Wrongfulness
• Fault
• Causation
• Harm/Damage
Plaintiff must prove all elements
Defendant has to eliminate only one
REMEDIES
1. Delictual remedy - Actions
Three actions – pillars of law of delict – classic delictual action
a. Patrimonial damages – damnum iniuria datum – reduction in financial position
Injury to personality – iniuria
• action legis Aquiliae –
o wrongful and culpable (intentional or negligent) causing patrimonial damages.
o Intention or negligence prove (fault)
• action iniuriartum –
o directed at satisfaction (solatium or sentimental damages) for wrongful and
intentional injury to personality.
o Intention must be proved (fault)
These two except for few exemption – cover whole are delictual liability.
• action for pain and suffering-
o wrongful and negligent (or intentional) impairment of bodily or physical-mental
integrity claimed.
o Intention or negligence proved (fault)
b. Liability without fault – other delictual action available
2. Delictual remedy – Interdict
o Not to recover loss already suffered
o Order to prevent harm,
o Prove two delictual elements: -
Act already committed or will be,
It is or will be wrongful.
,Delict and Breach of contract
Similarities
• Act of one person (contracting party)
• Wrongful and culpable act causing damage to another (contracting party)
Reasons for distinguishing/ differences
• Breach of contract constituted by: -
o Non-fulfilment by contractual party of contractual personal right or obligation to
perform.
o Primary remedy – enforcement, fulfilment, or execution of contract
o Claim for damages plays secondary role.
o Not formally treated as form of delict, part of contract law – specific rules and
remedies
• Delict constituted by: -
o Infringement of legally recognised interest of another party
o delictual remedies - primarily directed at damages.
Delict and Crime
Similarity
• Wrongful and culpable acts
Differences
• Crime: -
o Public law – upholding public interest.
o Criminal sanctions are of penal nature – intended to punish the criminal for
transgression again public interest.
• Delict: -
o Private law – protection individual interests
o Remedies – compensatory in character – compensating or indemnifying the
aggrieved party from harm wrongdoer caused.
Fundamental rights relevant to Law of Delict
• Right to property
• Right to life
• Right to freedom and security of the person – include right to bodily and psychological
integrity.
• Right to privacy
• Right to human dignity
• Right to equality
• Right to freedom of expression
• Right to freedom of religion, belief, and opinion
• Right to assembly, demonstration, picket, and petition
• Right to freedom of association
• Right to freedom of trade, occupation, and profession
,Chapter 2 of Constitution influence on law of Delict
Directly
Direct Vertical application – state must respect fundamental rights (may not infringe rights), except
insofar as the infringement is reasonable and justifiable in accordance with limitation clause
section 36.
Direct Horizontal application – courts must give effect to applicable fundamental right by applying,
where necessary, developing common law. Insofar as legislation does not give effect to the right.
Exercising value judgement, general principles in our law i.e., reasonableness or boni mores (legal
conviction of the community) criterion for delictual wrongfulness may serve prima facie indication
of reasonableness of a limitation in terms of the BoR.
When fundamental right is infringed or threatened, person is entitled to approach a competent
court.
Indirectly
All private law rules, principles and norms are subject to basic values of Ch 2 namely, promoting
spirit, purport and objects of the BoR. This will deliver the same results as direct application of
BoR. Applies to open-ended or flexible delictual principles. ie boni mores test for wrongfulness,
imputability test foe legal causation, reasonable person test for negligence and where policy
considers where reasonableness, fairness and justice plays a part.
Ch 2 can be implemented good results: - important policy considerations in determining.
• Wrongfulness
• Legal causation
• negligence
, UNIT 3 – General principles
1. Conduct or Act - ELEMENT
• A voluntary, human act or omission. - TEST
****Characteristics – NB NB
1. Act of human being
Animal act?
• Only where human uses animal as an instrument in the commission
• Human act till present
Juristic person
• May act through organs (humans) may be held delictual liable
o i.e. human conduct may be attributed to juristic person
o act performed by or ordered or with permission of director, official, servant of juristic
person
o in exercise of duties or functions in advancing or attempting to advance interests of
juristic person
o deemed to be performed by juristic person.
2. Performed voluntarily.
Voluntary conduct
Sufficient mental ability to control muscular movement
• Not mean must have willed or desired his conduct.
• Not mean conduct must be rational or explicable.
o Conduct by infants or mentally diseased persons are usually voluntary.
o May escape lacks accountability or fault.
• Claim not acted voluntarily – raises defence of automatism.
?? is willed always voluntary and visa versa??
3. Positive act (active conduct – commission) or omission – most important by
WRONGFULNESS
• Conduct can be commission or omission.
• Liability for omissions generally more restricted than a positive act.
• Law hesitant to find legal duty on someone to act positively to prevent damage to another.
UNIT 2 – General introduction
Define a delict.
• The act of a person which, in a wrongful and culpable way, causes harm to another.
Elements of a delict – All 5 elements/requirements must be present.
• Act
• Wrongfulness
• Fault
• Causation
• Harm/Damage
Plaintiff must prove all elements
Defendant has to eliminate only one
REMEDIES
1. Delictual remedy - Actions
Three actions – pillars of law of delict – classic delictual action
a. Patrimonial damages – damnum iniuria datum – reduction in financial position
Injury to personality – iniuria
• action legis Aquiliae –
o wrongful and culpable (intentional or negligent) causing patrimonial damages.
o Intention or negligence prove (fault)
• action iniuriartum –
o directed at satisfaction (solatium or sentimental damages) for wrongful and
intentional injury to personality.
o Intention must be proved (fault)
These two except for few exemption – cover whole are delictual liability.
• action for pain and suffering-
o wrongful and negligent (or intentional) impairment of bodily or physical-mental
integrity claimed.
o Intention or negligence proved (fault)
b. Liability without fault – other delictual action available
2. Delictual remedy – Interdict
o Not to recover loss already suffered
o Order to prevent harm,
o Prove two delictual elements: -
Act already committed or will be,
It is or will be wrongful.
,Delict and Breach of contract
Similarities
• Act of one person (contracting party)
• Wrongful and culpable act causing damage to another (contracting party)
Reasons for distinguishing/ differences
• Breach of contract constituted by: -
o Non-fulfilment by contractual party of contractual personal right or obligation to
perform.
o Primary remedy – enforcement, fulfilment, or execution of contract
o Claim for damages plays secondary role.
o Not formally treated as form of delict, part of contract law – specific rules and
remedies
• Delict constituted by: -
o Infringement of legally recognised interest of another party
o delictual remedies - primarily directed at damages.
Delict and Crime
Similarity
• Wrongful and culpable acts
Differences
• Crime: -
o Public law – upholding public interest.
o Criminal sanctions are of penal nature – intended to punish the criminal for
transgression again public interest.
• Delict: -
o Private law – protection individual interests
o Remedies – compensatory in character – compensating or indemnifying the
aggrieved party from harm wrongdoer caused.
Fundamental rights relevant to Law of Delict
• Right to property
• Right to life
• Right to freedom and security of the person – include right to bodily and psychological
integrity.
• Right to privacy
• Right to human dignity
• Right to equality
• Right to freedom of expression
• Right to freedom of religion, belief, and opinion
• Right to assembly, demonstration, picket, and petition
• Right to freedom of association
• Right to freedom of trade, occupation, and profession
,Chapter 2 of Constitution influence on law of Delict
Directly
Direct Vertical application – state must respect fundamental rights (may not infringe rights), except
insofar as the infringement is reasonable and justifiable in accordance with limitation clause
section 36.
Direct Horizontal application – courts must give effect to applicable fundamental right by applying,
where necessary, developing common law. Insofar as legislation does not give effect to the right.
Exercising value judgement, general principles in our law i.e., reasonableness or boni mores (legal
conviction of the community) criterion for delictual wrongfulness may serve prima facie indication
of reasonableness of a limitation in terms of the BoR.
When fundamental right is infringed or threatened, person is entitled to approach a competent
court.
Indirectly
All private law rules, principles and norms are subject to basic values of Ch 2 namely, promoting
spirit, purport and objects of the BoR. This will deliver the same results as direct application of
BoR. Applies to open-ended or flexible delictual principles. ie boni mores test for wrongfulness,
imputability test foe legal causation, reasonable person test for negligence and where policy
considers where reasonableness, fairness and justice plays a part.
Ch 2 can be implemented good results: - important policy considerations in determining.
• Wrongfulness
• Legal causation
• negligence
, UNIT 3 – General principles
1. Conduct or Act - ELEMENT
• A voluntary, human act or omission. - TEST
****Characteristics – NB NB
1. Act of human being
Animal act?
• Only where human uses animal as an instrument in the commission
• Human act till present
Juristic person
• May act through organs (humans) may be held delictual liable
o i.e. human conduct may be attributed to juristic person
o act performed by or ordered or with permission of director, official, servant of juristic
person
o in exercise of duties or functions in advancing or attempting to advance interests of
juristic person
o deemed to be performed by juristic person.
2. Performed voluntarily.
Voluntary conduct
Sufficient mental ability to control muscular movement
• Not mean must have willed or desired his conduct.
• Not mean conduct must be rational or explicable.
o Conduct by infants or mentally diseased persons are usually voluntary.
o May escape lacks accountability or fault.
• Claim not acted voluntarily – raises defence of automatism.
?? is willed always voluntary and visa versa??
3. Positive act (active conduct – commission) or omission – most important by
WRONGFULNESS
• Conduct can be commission or omission.
• Liability for omissions generally more restricted than a positive act.
• Law hesitant to find legal duty on someone to act positively to prevent damage to another.
