1
Exam notes - LAW OF DELICT
1. Define a delict (2)
The act of a person which in a wrongful and culpable way causes harm to another.
2. List the 5 elements of a delict
- Act
- Wrongfulness
- Fault
- Causation
- Damage
(8) (b) Indicate precisely which types of compensation can be recovered with each of the actions cited above.
(a) Name the three actions that are described as the pillars of our law of delict.
Name the most important delictual remedies available, and briefly indicate what are the differences between
them
I. Actio legis Aquiliae: Claim damages for wrongful and culpable causing of patrimonial damage
II. Actio iniuriarum: Claim satisfaction for wrongful and intentional injury to personality.
III. Action for pain and suffering: Claim compensation for wrongful and culpable impairment of bodily or
physical-mental integrity.
(c) Indicate what form of fault is required for each of the actions cited above.
Culpably includes the concepts of negligence or intention
1. intention or negligence
2. intent is generally required
3. intention or negligence
(d) Indicate which other group of delictual actions is available in our law.
(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.
3. Write brief notes on the differences/ similarities between a delict and a breach of contract [5]
1. A contract is an agreement with the intention to create an obligation or obligations.
2. Breach of contract is normally an act by one person (contracting party) which in a wrongful and culpable way
causes damage to another (contracting party).
3. Breach of contract is only constituted by the non-fulfillment by a contractual party of a contractual personal
right (claim) or an obligation to be performed.
4. The primary remedy for breach of contract is directed at enforcement, fulfillment or execution of the contract;
a claim for damages as a remedy only plays a secondary part.
5. A delict is constituted by the infringement of any legally recognised interest of another party, excluding the
non-fulfillment of a duty to perform by a contractual party.
6. The delictual remedies are primarily directed at damages or satisfaction. 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.
7. Thus the law of contract provides specific rules and remedies for breach of contract that are not applicable to
the law of delict.
8. At most both are species of the genus “wrongful conduct” in private law.
Write brief notes on the differences/ similarities between a delict and a crime
• The principle difference relates to the distinction between private and public law.
• Private law is directed at the protection of individual interests, while public law is directed at upholding the
public interest.
• Delictual remedies are compensatory in character, compensating or indemnifying the aggrieved party for the
harm the wrongdoer has caused.
, 2
• Criminal sanctions are of penal nature.
• One and the same act may be found delictual and criminal liability but a delict is not necessary a crime and
vice versa.
9. Explain in 4 or 5 sentences how Chpt. 2 of the Constitution may influence the law of delict
1. The Constitution is the supreme law of RSA. Chapter2 (BOR) is applicable to all law, incl Delict.
2. Vertical & horizontal application of Const can take place directly or indirectly.
3. Constitutional remedies are aimed at affirming/enforcing/protecting/vindicating fundamental rights and
deterring future violations of Ch2.
4. There is a distinction between a constitutional wrong and a delict, constitutional wrong gives rise to a
constitutional remedy directed at affirming, enforcing, protecting and vindicating fundamental rights and
preventing future violation unlike a delictual remedy which is aimed at compensation.
5. Indirect application: the term indirect operation of the Bill of Rights means that all private law rules, principles
or norms including those regulating the law of delict are subject of Chapter 2.
6. The boni mores test for wrongfulness, the immutability test for legal causation and the reasonable person test
for negligence, where policy considerations and factors such as fairness and justice play an important part.
7. “Constitutional delict” infringement of a fundamental right per se constitutes a delict.
Write brief notes on the indirect application of the BOR to the law of delict (5)
Indirect application: the term indirect operation of the Bill of Rights means that all private law rules, principles or
norms including those regulations the law of delict are subject of Chapter 2.
The boni mores test for wrongfulness, the immutability test for legal causation and the reasonable person test for
negligence, where policy considerations and factors such as fairness and justice play an important part.
(1) What is the purpose of private law?
To regulate relations between individuals in a community. As individual interests are continually in a state of real or
threatened conflict private law recognises these interests, delimits them in relation to each other and harmonise
those that are in conflict.
(2) Briefly describe the role of the law of delict.
to indicate which interests are recognised by the law, under which circumstances they are protected against
infringement (that is when the impairment of a legally recognised interest constitutes a delict and how such a
disturbance in the harmonious balance of interests may be restored. In general terms the law of delict determines
the circumstances in which a person is obliged to bear the damage he has caused another.
(3) Why is the law of delict considered to be part of the law of obligations?
The wrongdoer has an obligation to make compensation for the damage suffered, the person prejudiced has a
corresponding right to claim compensation as a result an obligation between the two parties is created.
(6) The element of delict known as ``causation'' is actually divided into two elements. Name them.
Factual and legal causation
(7) Is fault always a requirement for delictual liability? Briefly discuss with reference to an example.
In certain exceptional cases a wrongdoer can be delictually liable for the wrongful causation of damage, even if
he/she had no fault. Here we are dealing with so-called liability without fault or strict liability.
Eg.oooooooooooooooooooo
(13) 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.
Fundamental rights ito Law of Delict:
1. Right to property
2. Right to life
3. Right to freedom and security of person
4. Right to privacy
, 3
5. Right to human dignity
6. Right to equality
7. Right to freedom of expression
8. Right to freedom of religion, belief, opinion
9. Right to assembly, demonstration, picket, petition
10. Right to freedom of association
11. Right to freedom of trade, occupation, profession
3. The Act or conduct
12. Define an act or conduct
Conduct is a voluntary human act or omission.
(2) Name (but do not discuss) the three characteristics of an act.
13. list the requirements of an act and apply them to practical factual examples
1. Only an act of a human being is accepted as “conduct”. If a human uses an animal as an
instrument a human act is still present. A juristic person may act through its organs (humans). To
determine human conduct to a juristic person for delictual liability:
i. An act performed by or at the order of or with the permission of a director, official or servant
of a juristic person in the exercise of is duties or functions in advancing or attempting to
advance the interests of the juristic person is deemed to have been performed by the juristic
person
ii. Vicarious liability= “employer” is responsible for employee thus acting as a representative for
employee or company.
2. Human action only constitutes conduct if it is performed voluntarily. Voluntariness implies that
the person in question has sufficient mental ability to control his muscular movements.
i. Voluntariness does not mean that a person must have willed or desired his conduct or that a
person’s conduct should be rational or explicable.
3. Conduct may be in the form of either a positive act (active conduct- a commissio) or an
omission (omissio)
(7) X forgets to warn others that an electric current has been switched on. As a result of his neglect (omission),
somebody is electrocuted. Does X act voluntarily? Explain briefly.
X clearly has not willed or desired this omission; however his conduct is voluntary because he was in principle
able to utter a warning.
(8) Can an infans or mentally retarded person act voluntarily?
Conduct by an infans or someone suffering from a mental disease is usually voluntary although the doer my
escape delictual liability for lack of accountability or fault
4. Explain the requirements of the defences of automatism and apply them to practical factual examples
The defence of automatism: i.e acted mechanically
• The following conditions may cause a person to act involuntarily:
Absolute compulsion; Sleep; Unconsciousness; A fainting fit, An epileptic fit; Serious intoxication; A black out;
Reflex movements, Strong emotional pressure; mental disease; hypnosis; duress and certain other conditions.
• The defence of automatism will not succeed if the defendant intentionally created the situation in which he
acts involuntarily in order to harm another= known as actio libera in causa.
• The defendant may not successfully rely on the defence of automatism where he was negligent with regard
to his automatic “conduct”
• This is where the reasonable man would have foreseen the possibility of causing harm while in a state of
automatism.
• If “sane” automatism (no pathology) is used, the onus is on the plaintiff to prove that the defendant has
acted voluntarily and therefore not mechanically. If the defendant raises automatism resulting from mental
illness as a defence such a defendant would bear onus.
, 4
Principles of automatism:
S v Johnson = generally accepted that a person who commits a crime in his sleep can not be held criminally
responsible because that act can not be voluntarily
R v Victor = X had an epileptic fit while driving his motor vehicle, collided with another vehicle and a
pedestrian. Court rejected defence of automatism as the court rejected the evidence
R v Schoonwinkel = facts are the same as Victor’s except that X killed a pedestrian. Court accepted the
defence of automatism and stated that it is not good enough to alleged but must prove to courts satisfaction
S v Chretien = normally a person who is under the influence of strong liqour can still act voluntarily,
although he may possibly be unaccountable but it is accepted that a person can be comatose, so drunk that he
simply makes involuntarily movements
5. Briefly explain the difference between a commissio and an omission (4)
- Liability for an omission is generally more restricted than liability for a commission.
- Commission is an act performed while an omission is a failure to perform a certain act.
- The law is hesitant to find that there was a legal duty on someone to act positively and so to prevent damage to
another.
- Omission is a failure to take any positive step whatsoever to prevent damage to other people.
(10) With reference to examples, distinguish between absolute compulsion and relative compulsion (vis
compulsiva).
Relative compulsion : X point gun at Y and orders him to shoot Z. to save his own life Y shoots Z
Absolute compulsion : X takes Y’s hand holding knife and unable to resist and pushes it into Z chest. Y did not act by
was mere used as in instrument by x.
Jack works at the shunting yard of the busy Germiston railway station. His job is to regulate the movements of the trains on the various rails by means of a
comprehensive system of signals. Due to a sudden sharp drop in Jack’s blood pressure, he loses consciousness for five minutes. During this period of
unconsciousness two trains collide because Jack did not change the signals. Did Jack act for the purpose of the law of delict? Would it make a difference to
your answer if Jack has already been under medical treatment for a diagnosed condition of low blood pressure, but failed to take his prescribed blood
pressure medication when he should have done so earlier that morning? Discuss in detail with reference to authority. [10]
(12) X is involved in an accident while driving his car. When he regains consciousness, he has no recollection of
how the accident took place. He is hospitalised and during treatment for head injuries, the doctors determine that
he suffered an epileptic fit at the time of the accident. The car of Y, the other person involved in the accident, is
badly damaged. Can it be said that it was an act on the part of X that damaged Y's car? Will it make a difference to
your answer if X had been receiving treatment for epilepsy before the accident, but had failed to take his medicine
for several days before the accident took place? Discuss. [10]
Exam notes - LAW OF DELICT
1. Define a delict (2)
The act of a person which in a wrongful and culpable way causes harm to another.
2. List the 5 elements of a delict
- Act
- Wrongfulness
- Fault
- Causation
- Damage
(8) (b) Indicate precisely which types of compensation can be recovered with each of the actions cited above.
(a) Name the three actions that are described as the pillars of our law of delict.
Name the most important delictual remedies available, and briefly indicate what are the differences between
them
I. Actio legis Aquiliae: Claim damages for wrongful and culpable causing of patrimonial damage
II. Actio iniuriarum: Claim satisfaction for wrongful and intentional injury to personality.
III. Action for pain and suffering: Claim compensation for wrongful and culpable impairment of bodily or
physical-mental integrity.
(c) Indicate what form of fault is required for each of the actions cited above.
Culpably includes the concepts of negligence or intention
1. intention or negligence
2. intent is generally required
3. intention or negligence
(d) Indicate which other group of delictual actions is available in our law.
(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.
3. Write brief notes on the differences/ similarities between a delict and a breach of contract [5]
1. A contract is an agreement with the intention to create an obligation or obligations.
2. Breach of contract is normally an act by one person (contracting party) which in a wrongful and culpable way
causes damage to another (contracting party).
3. Breach of contract is only constituted by the non-fulfillment by a contractual party of a contractual personal
right (claim) or an obligation to be performed.
4. The primary remedy for breach of contract is directed at enforcement, fulfillment or execution of the contract;
a claim for damages as a remedy only plays a secondary part.
5. A delict is constituted by the infringement of any legally recognised interest of another party, excluding the
non-fulfillment of a duty to perform by a contractual party.
6. The delictual remedies are primarily directed at damages or satisfaction. 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.
7. Thus the law of contract provides specific rules and remedies for breach of contract that are not applicable to
the law of delict.
8. At most both are species of the genus “wrongful conduct” in private law.
Write brief notes on the differences/ similarities between a delict and a crime
• The principle difference relates to the distinction between private and public law.
• Private law is directed at the protection of individual interests, while public law is directed at upholding the
public interest.
• Delictual remedies are compensatory in character, compensating or indemnifying the aggrieved party for the
harm the wrongdoer has caused.
, 2
• Criminal sanctions are of penal nature.
• One and the same act may be found delictual and criminal liability but a delict is not necessary a crime and
vice versa.
9. Explain in 4 or 5 sentences how Chpt. 2 of the Constitution may influence the law of delict
1. The Constitution is the supreme law of RSA. Chapter2 (BOR) is applicable to all law, incl Delict.
2. Vertical & horizontal application of Const can take place directly or indirectly.
3. Constitutional remedies are aimed at affirming/enforcing/protecting/vindicating fundamental rights and
deterring future violations of Ch2.
4. There is a distinction between a constitutional wrong and a delict, constitutional wrong gives rise to a
constitutional remedy directed at affirming, enforcing, protecting and vindicating fundamental rights and
preventing future violation unlike a delictual remedy which is aimed at compensation.
5. Indirect application: the term indirect operation of the Bill of Rights means that all private law rules, principles
or norms including those regulating the law of delict are subject of Chapter 2.
6. The boni mores test for wrongfulness, the immutability test for legal causation and the reasonable person test
for negligence, where policy considerations and factors such as fairness and justice play an important part.
7. “Constitutional delict” infringement of a fundamental right per se constitutes a delict.
Write brief notes on the indirect application of the BOR to the law of delict (5)
Indirect application: the term indirect operation of the Bill of Rights means that all private law rules, principles or
norms including those regulations the law of delict are subject of Chapter 2.
The boni mores test for wrongfulness, the immutability test for legal causation and the reasonable person test for
negligence, where policy considerations and factors such as fairness and justice play an important part.
(1) What is the purpose of private law?
To regulate relations between individuals in a community. As individual interests are continually in a state of real or
threatened conflict private law recognises these interests, delimits them in relation to each other and harmonise
those that are in conflict.
(2) Briefly describe the role of the law of delict.
to indicate which interests are recognised by the law, under which circumstances they are protected against
infringement (that is when the impairment of a legally recognised interest constitutes a delict and how such a
disturbance in the harmonious balance of interests may be restored. In general terms the law of delict determines
the circumstances in which a person is obliged to bear the damage he has caused another.
(3) Why is the law of delict considered to be part of the law of obligations?
The wrongdoer has an obligation to make compensation for the damage suffered, the person prejudiced has a
corresponding right to claim compensation as a result an obligation between the two parties is created.
(6) The element of delict known as ``causation'' is actually divided into two elements. Name them.
Factual and legal causation
(7) Is fault always a requirement for delictual liability? Briefly discuss with reference to an example.
In certain exceptional cases a wrongdoer can be delictually liable for the wrongful causation of damage, even if
he/she had no fault. Here we are dealing with so-called liability without fault or strict liability.
Eg.oooooooooooooooooooo
(13) 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.
Fundamental rights ito Law of Delict:
1. Right to property
2. Right to life
3. Right to freedom and security of person
4. Right to privacy
, 3
5. Right to human dignity
6. Right to equality
7. Right to freedom of expression
8. Right to freedom of religion, belief, opinion
9. Right to assembly, demonstration, picket, petition
10. Right to freedom of association
11. Right to freedom of trade, occupation, profession
3. The Act or conduct
12. Define an act or conduct
Conduct is a voluntary human act or omission.
(2) Name (but do not discuss) the three characteristics of an act.
13. list the requirements of an act and apply them to practical factual examples
1. Only an act of a human being is accepted as “conduct”. If a human uses an animal as an
instrument a human act is still present. A juristic person may act through its organs (humans). To
determine human conduct to a juristic person for delictual liability:
i. An act performed by or at the order of or with the permission of a director, official or servant
of a juristic person in the exercise of is duties or functions in advancing or attempting to
advance the interests of the juristic person is deemed to have been performed by the juristic
person
ii. Vicarious liability= “employer” is responsible for employee thus acting as a representative for
employee or company.
2. Human action only constitutes conduct if it is performed voluntarily. Voluntariness implies that
the person in question has sufficient mental ability to control his muscular movements.
i. Voluntariness does not mean that a person must have willed or desired his conduct or that a
person’s conduct should be rational or explicable.
3. Conduct may be in the form of either a positive act (active conduct- a commissio) or an
omission (omissio)
(7) X forgets to warn others that an electric current has been switched on. As a result of his neglect (omission),
somebody is electrocuted. Does X act voluntarily? Explain briefly.
X clearly has not willed or desired this omission; however his conduct is voluntary because he was in principle
able to utter a warning.
(8) Can an infans or mentally retarded person act voluntarily?
Conduct by an infans or someone suffering from a mental disease is usually voluntary although the doer my
escape delictual liability for lack of accountability or fault
4. Explain the requirements of the defences of automatism and apply them to practical factual examples
The defence of automatism: i.e acted mechanically
• The following conditions may cause a person to act involuntarily:
Absolute compulsion; Sleep; Unconsciousness; A fainting fit, An epileptic fit; Serious intoxication; A black out;
Reflex movements, Strong emotional pressure; mental disease; hypnosis; duress and certain other conditions.
• The defence of automatism will not succeed if the defendant intentionally created the situation in which he
acts involuntarily in order to harm another= known as actio libera in causa.
• The defendant may not successfully rely on the defence of automatism where he was negligent with regard
to his automatic “conduct”
• This is where the reasonable man would have foreseen the possibility of causing harm while in a state of
automatism.
• If “sane” automatism (no pathology) is used, the onus is on the plaintiff to prove that the defendant has
acted voluntarily and therefore not mechanically. If the defendant raises automatism resulting from mental
illness as a defence such a defendant would bear onus.
, 4
Principles of automatism:
S v Johnson = generally accepted that a person who commits a crime in his sleep can not be held criminally
responsible because that act can not be voluntarily
R v Victor = X had an epileptic fit while driving his motor vehicle, collided with another vehicle and a
pedestrian. Court rejected defence of automatism as the court rejected the evidence
R v Schoonwinkel = facts are the same as Victor’s except that X killed a pedestrian. Court accepted the
defence of automatism and stated that it is not good enough to alleged but must prove to courts satisfaction
S v Chretien = normally a person who is under the influence of strong liqour can still act voluntarily,
although he may possibly be unaccountable but it is accepted that a person can be comatose, so drunk that he
simply makes involuntarily movements
5. Briefly explain the difference between a commissio and an omission (4)
- Liability for an omission is generally more restricted than liability for a commission.
- Commission is an act performed while an omission is a failure to perform a certain act.
- The law is hesitant to find that there was a legal duty on someone to act positively and so to prevent damage to
another.
- Omission is a failure to take any positive step whatsoever to prevent damage to other people.
(10) With reference to examples, distinguish between absolute compulsion and relative compulsion (vis
compulsiva).
Relative compulsion : X point gun at Y and orders him to shoot Z. to save his own life Y shoots Z
Absolute compulsion : X takes Y’s hand holding knife and unable to resist and pushes it into Z chest. Y did not act by
was mere used as in instrument by x.
Jack works at the shunting yard of the busy Germiston railway station. His job is to regulate the movements of the trains on the various rails by means of a
comprehensive system of signals. Due to a sudden sharp drop in Jack’s blood pressure, he loses consciousness for five minutes. During this period of
unconsciousness two trains collide because Jack did not change the signals. Did Jack act for the purpose of the law of delict? Would it make a difference to
your answer if Jack has already been under medical treatment for a diagnosed condition of low blood pressure, but failed to take his prescribed blood
pressure medication when he should have done so earlier that morning? Discuss in detail with reference to authority. [10]
(12) X is involved in an accident while driving his car. When he regains consciousness, he has no recollection of
how the accident took place. He is hospitalised and during treatment for head injuries, the doctors determine that
he suffered an epileptic fit at the time of the accident. The car of Y, the other person involved in the accident, is
badly damaged. Can it be said that it was an act on the part of X that damaged Y's car? Will it make a difference to
your answer if X had been receiving treatment for epilepsy before the accident, but had failed to take his medicine
for several days before the accident took place? Discuss. [10]
