LAW OF DELICT (PVL3703) Study guide Self-assessment Activities
PART 1: Introduction to the law of delict
Study unit 2: General introduction
(1) Define a delict.
A delict (wrongful conduct) is the act of a person which in a wrongful (legally reprehensible) and
culpable (legally blameworthy) way causes loss (damage) to another.
(2) Name the elements of a delict (ie. the general requirements for delictual liability).
Act
Wrongfulness
Fault
Causation
Damage/harm
(3) (a) Name the 3 actions that are described as the pillars of our law of delict.
The actio legis Aquiliae, the actio iniuriarum and the action for pain and suffering.
(b) Indicate which types of compensation can be recovered with each of the actions cited in (a).
Actio legis Aquiliae: Damages for the wrongful and culpable (intentional or negligent) causing of
patrimonial damage (damnum iniuria datum).
Actio iniuriarum: Satisfaction (solatium or sentimental damages) for the wrongful and intentional
injury to personality.
Action for pain and suffering: Compensation for injury to personality as a result of the wrongful and
negligent (or intentional) impairment of bodily or physical-mental integrity.
(c) Indicate what form of fault is required for each of the actions cited in (a).
Actio legis Aquiliae: Claim damages for wrongful and culpable causing of patrimonial loss = intention or
negligence must be proved.
Actio iniuriarum: Claim satisfaction for wrongful and intentional injury to personality (personality
infringements) = intention must be proved.
Action for pain and suffering: Claim compensation for wrongful and culpable impairment of bodily
injuries or physical-mental integrity = intention or negligence must be proved.
(d) Indicate which other group of delictual actions is available in our law.
Liability without fault
(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. A court order to prevent the causing or continued causing of damage. Can be issued by the
court in absence of proof of the elements of fault, causation, or damage.
, (4) What is the similarity between delict and breach of contract?
As with a delict, a 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).
(5) What are the reasons for distinguishing between a delict and breach of contract?
Breach of contract is only constituted by the non-fulfilment by a contractual party of a contractual
personal claim or an obligation to perform. A delict is constituted by the infringement of any legally
recognised interest of another party, excluding the non-fulfilment of a duty to perform by a contractual
party. The primary remedy for breach of contract is directed at the enforcement, fulfilment, or execution
of the contract (with a claim for damages playing a secondary part). Delictual remedies are primarily
directed at damages (or satisfaction), and not at fulfilment.
(6) What appears to be the similarity between a delict and a crime?
The law also takes cognisance of wrongful and culpable acts in the sphere of public law, more particularly
in criminal law.
(7) Name the differences between a delict and a crime.
Crimes are a part of public law, whereas delicts are a part of private law. Public law is directed at
upholding the public interest, whereas private law is directed at the protection of individual interests.
Delictual remedies are compensatory in character, whereas criminal sanctions are of a penal nature. The
same act may found delictual as well as criminal liability. Crimes and delicts do not always overlap. A delict
is not necessarily a crime, and vice versa.
(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.
The right to property, the right to life, the right to freedom and security of the person, the right to privacy,
the right to human dignity, the right to equality, the right to freedom of expression, etc.
(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 the fundamental rights and may not infringe
them, except insofar as such infringement is reasonable and justifiable according to the limitation clause.
Direct horizontal application entails that the courts must give effect to an applicable fundamental right by
applying, and where necessary, 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
accordance with the limitation clause.
(10) Explain in a short essay how Chapter 2 of the Constitution may influence the law of delict indirectly.
The term ‘the indirect operation of the Bill of Rights’ means that all private law rules, principles, or norms –
including those regulating the law of delict – are subjected to, and must therefore be given content in the
light of the basic values of Chapter 2. Therefore policy factors such as reasonableness, fairness, and justice
may play an important part.
, PART 2: General principles of the law of delict
Study unit 3: Conduct
(1) Define the concept ‘‘act’’ or ‘‘conduct’’.
Conduct may be defined as a voluntary human act or omission.
(2) Name (but do not discuss) the three characteristics of an act.
a. Only an act of a human being (not an animal) is accepted as “conduct”.
b. Human action only constitutes conduct if it’s performed voluntarily.
c. Conduct may be in the form of either a positive (active) act (a commissio) or an omission (omissio).
(3) Can an animal act for the purposes of the law of delict?
No, only an act of a human being (not an animal) is accepted as “conduct”.
(4) X encourages his dog to bite Y. Does X act?
Yes, where a human uses an animal as an instrument in the commission of a delict, a human act is still
present.
(5) Can a juristic person (like a company) act? Explain briefly.
Yes, a juristic person (a company, university, public school, statutory body) may act through its organs
(humans) and thus may be held delictualy liable for such actions.
(6) What does the concept of voluntary conduct mean?
If the action is susceptible to control by the will of the person involved, it is voluntary. Voluntariness
implies that the person in question has sufficient mental ability to control his muscular movements.
Voluntariness does not mean that the person must have willed or desired his conduct (eg. forgetting to
warn vs being unconscious and not being able to warn). Voluntariness also does not mean that a person’s
conduct should be rational or explicable.
(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.
Yes, X acts voluntarily. X forgets to warn other people that an electric current has been switched on and
thus someone is electrocuted, X clearly hasn’t willed/desired this omission; however his conduct is
nevertheless voluntary because he was able to utter a warning. (S v Russell)
(8) Can an infans or mentally retarded person act voluntarily?
Yes, conduct by an infant or someone suffering from a mental disease is usually voluntary although the
doer may escape delictual liability, either because he lacks accountability or because fault is absent.
(9) Name the conditions that can result in a person’s being unable to act voluntarily.
Conditions that may cause a person to act involuntarily as they render him incapable of controlling his
bodily movements: absolute compulsion (vis absoluta), sleep, unconsciousness, fainting fit, epileptic fit,
serious intoxication, blackout, reflex movements, strong emotional pressure, mental disease, hypnosis,
and a heart attack. (The defence of automatism)
PART 1: Introduction to the law of delict
Study unit 2: General introduction
(1) Define a delict.
A delict (wrongful conduct) is the act of a person which in a wrongful (legally reprehensible) and
culpable (legally blameworthy) way causes loss (damage) to another.
(2) Name the elements of a delict (ie. the general requirements for delictual liability).
Act
Wrongfulness
Fault
Causation
Damage/harm
(3) (a) Name the 3 actions that are described as the pillars of our law of delict.
The actio legis Aquiliae, the actio iniuriarum and the action for pain and suffering.
(b) Indicate which types of compensation can be recovered with each of the actions cited in (a).
Actio legis Aquiliae: Damages for the wrongful and culpable (intentional or negligent) causing of
patrimonial damage (damnum iniuria datum).
Actio iniuriarum: Satisfaction (solatium or sentimental damages) for the wrongful and intentional
injury to personality.
Action for pain and suffering: Compensation for injury to personality as a result of the wrongful and
negligent (or intentional) impairment of bodily or physical-mental integrity.
(c) Indicate what form of fault is required for each of the actions cited in (a).
Actio legis Aquiliae: Claim damages for wrongful and culpable causing of patrimonial loss = intention or
negligence must be proved.
Actio iniuriarum: Claim satisfaction for wrongful and intentional injury to personality (personality
infringements) = intention must be proved.
Action for pain and suffering: Claim compensation for wrongful and culpable impairment of bodily
injuries or physical-mental integrity = intention or negligence must be proved.
(d) Indicate which other group of delictual actions is available in our law.
Liability without fault
(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. A court order to prevent the causing or continued causing of damage. Can be issued by the
court in absence of proof of the elements of fault, causation, or damage.
, (4) What is the similarity between delict and breach of contract?
As with a delict, a 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).
(5) What are the reasons for distinguishing between a delict and breach of contract?
Breach of contract is only constituted by the non-fulfilment by a contractual party of a contractual
personal claim or an obligation to perform. A delict is constituted by the infringement of any legally
recognised interest of another party, excluding the non-fulfilment of a duty to perform by a contractual
party. The primary remedy for breach of contract is directed at the enforcement, fulfilment, or execution
of the contract (with a claim for damages playing a secondary part). Delictual remedies are primarily
directed at damages (or satisfaction), and not at fulfilment.
(6) What appears to be the similarity between a delict and a crime?
The law also takes cognisance of wrongful and culpable acts in the sphere of public law, more particularly
in criminal law.
(7) Name the differences between a delict and a crime.
Crimes are a part of public law, whereas delicts are a part of private law. Public law is directed at
upholding the public interest, whereas private law is directed at the protection of individual interests.
Delictual remedies are compensatory in character, whereas criminal sanctions are of a penal nature. The
same act may found delictual as well as criminal liability. Crimes and delicts do not always overlap. A delict
is not necessarily a crime, and vice versa.
(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.
The right to property, the right to life, the right to freedom and security of the person, the right to privacy,
the right to human dignity, the right to equality, the right to freedom of expression, etc.
(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 the fundamental rights and may not infringe
them, except insofar as such infringement is reasonable and justifiable according to the limitation clause.
Direct horizontal application entails that the courts must give effect to an applicable fundamental right by
applying, and where necessary, 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
accordance with the limitation clause.
(10) Explain in a short essay how Chapter 2 of the Constitution may influence the law of delict indirectly.
The term ‘the indirect operation of the Bill of Rights’ means that all private law rules, principles, or norms –
including those regulating the law of delict – are subjected to, and must therefore be given content in the
light of the basic values of Chapter 2. Therefore policy factors such as reasonableness, fairness, and justice
may play an important part.
, PART 2: General principles of the law of delict
Study unit 3: Conduct
(1) Define the concept ‘‘act’’ or ‘‘conduct’’.
Conduct may be defined as a voluntary human act or omission.
(2) Name (but do not discuss) the three characteristics of an act.
a. Only an act of a human being (not an animal) is accepted as “conduct”.
b. Human action only constitutes conduct if it’s performed voluntarily.
c. Conduct may be in the form of either a positive (active) act (a commissio) or an omission (omissio).
(3) Can an animal act for the purposes of the law of delict?
No, only an act of a human being (not an animal) is accepted as “conduct”.
(4) X encourages his dog to bite Y. Does X act?
Yes, where a human uses an animal as an instrument in the commission of a delict, a human act is still
present.
(5) Can a juristic person (like a company) act? Explain briefly.
Yes, a juristic person (a company, university, public school, statutory body) may act through its organs
(humans) and thus may be held delictualy liable for such actions.
(6) What does the concept of voluntary conduct mean?
If the action is susceptible to control by the will of the person involved, it is voluntary. Voluntariness
implies that the person in question has sufficient mental ability to control his muscular movements.
Voluntariness does not mean that the person must have willed or desired his conduct (eg. forgetting to
warn vs being unconscious and not being able to warn). Voluntariness also does not mean that a person’s
conduct should be rational or explicable.
(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.
Yes, X acts voluntarily. X forgets to warn other people that an electric current has been switched on and
thus someone is electrocuted, X clearly hasn’t willed/desired this omission; however his conduct is
nevertheless voluntary because he was able to utter a warning. (S v Russell)
(8) Can an infans or mentally retarded person act voluntarily?
Yes, conduct by an infant or someone suffering from a mental disease is usually voluntary although the
doer may escape delictual liability, either because he lacks accountability or because fault is absent.
(9) Name the conditions that can result in a person’s being unable to act voluntarily.
Conditions that may cause a person to act involuntarily as they render him incapable of controlling his
bodily movements: absolute compulsion (vis absoluta), sleep, unconsciousness, fainting fit, epileptic fit,
serious intoxication, blackout, reflex movements, strong emotional pressure, mental disease, hypnosis,
and a heart attack. (The defence of automatism)
