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CRITICAL LAW STUDIES CLS NOTES
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Delict Pack
1
LAW OF DELICT
Private law: regulates relationships between individuals in a
community.
Role of delict: indicate which interests are recognized by law, under
what circumstances they are protected against infringement and how
a disturbance in the balance is restored.
Definition of delict: a delict is an act of a person, which in a
wrongful and culpable way causes harm to another.
5 requirements:
1. Act
2. Wrongfulness
3. Fault
4. Causation (factual and legal)
5. Damage (damnum iniuria datum)
All must be present before conduct can become a delict.
Difference between delict and a crime:
Delict:
1. Protects private interests (private law)
2. The aggrieved party institutes the action
3. Objective: claim damages as compensation
4. Can’t have attempted delict
Crime:
1. Protects public interest (public law)
2. The state prosecutes
3. Objective: punish the criminal
4. Can have attempted crime
Both are wrongful culpable acts causing damage
Delict and breach of contract:
Delict:
1. Excludes non-fulfillment of a duty to perform (real right)
2. Primary remedy = damages
Breach of contract:
1. Breach = non-fulfillment of a contractual obligation to perform
(personal right)
2. Primary remedy: performance of the contract
Critical Law Studies CC ©
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Delict Pack
2
Delict, the Constitution and fundamental rights:
The Constitution is supreme and conduct inconsistent with it is
invalid.
Fundamental rights can be limited by the law of general application,
but only to the extent that the limitation is reasonable and justifiable
in an open and democratic society based on human dignity equality
and freedom (Section 36).
Courts must promote the values that underlie this society.
International law must be taken into account.
Direct application: the fundamental rights relevant to or connected
with the law of delict include = right to property, life, freedom, privacy,
dignity, equality, freedom of expression, freedom of religion belief and
opinion, the right to assembly, demonstration, picket, petition,
freedom of association, freedom of trade, occupation and profession.
The state must protect fundamental rights and not infringe them
except unless the requirements for Section 36 have been complied
with.
In case of an infringement that is not justified, anyone who is entitled
to relief can approach a competent court.
Indirect application: all private law rules, principles and those
regulating the law of delict are subject to chapter 2 and applies in
particular to the so-called “open-ended or flexible” delictual principles.
For example, the boni mores test for wrongfulness where policy
considerations and factors such as reasonableness, fairness and
justice may play an important part.
Critical Law Studies CC ©
Downloaded by Vincent Cosmas ()
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CLS cc ©
Delict Pack
3
THE ACT (CONDUCT)
Consists of a voluntary human commission or omission:
Elements:
1. Human act: where an animal is used as an instrument a human
act is still present. A juristic person can act through its agents
(company) and be held delictually liable for its actions.
Gijzen: held – delictual liability can occur without there being an
act on the part of the defendant, in the case of land subsistence
cases. Such an act must be wrongful: an act and its consequences
may be separated from each other in time and space, but there
always has to be an act.
2. Voluntary conduct: the act must have been performed voluntarily –
the wrongdoer must have had control over his muscular
movements (i.e. If it is susceptible to control b the will of the
person involved).
One’s voluntary conduct does not have to be willed or desired, as
can be seen in the case of S v Russell: X forgot to warn others that
an electric current had been switched on. Someone was
electrocuted. Russell stated that he wasn’t guilty because he hadn’t
willed or desired the outcome.
Court held: that the test was whether he was able to utter a
warning = GUILTY.
3. Commission and Ommission: conduct can be in the form of a
commission or omission. Liability for an omission is in general
more restricted than liability for a positive act (commission). The
law is hesitant to find that there was a legal duty on someone to
act positively and so to prevent damage to another.
The Defence of Automatism:
The voluntary conduct on the part of the defendant is a requirement
for delictual liability.
The defendant could argue that the conduct complained of doesn’t
satisfy the requirement of voluntariness.
This is where someone acted mechanically = sleep, unconscious,
fainting fit, absolute compulsion (X grabs Y’s hand and stabs P using
Y’s hand), epileptic fit, serious intoxication, black out.
If these are present a person is incapable of controlling his bodily
movement = purely mechanical action and that person raises the
defence of automatism
Critical Law Studies CC ©
Downloaded by Vincent Cosmas ()
A+ GUARANTEED IN THIS DOCUMENT
CRITICAL LAW STUDIES CLS NOTES
, lOMoARcPSD|32110785
CLS cc ©
Delict Pack
1
LAW OF DELICT
Private law: regulates relationships between individuals in a
community.
Role of delict: indicate which interests are recognized by law, under
what circumstances they are protected against infringement and how
a disturbance in the balance is restored.
Definition of delict: a delict is an act of a person, which in a
wrongful and culpable way causes harm to another.
5 requirements:
1. Act
2. Wrongfulness
3. Fault
4. Causation (factual and legal)
5. Damage (damnum iniuria datum)
All must be present before conduct can become a delict.
Difference between delict and a crime:
Delict:
1. Protects private interests (private law)
2. The aggrieved party institutes the action
3. Objective: claim damages as compensation
4. Can’t have attempted delict
Crime:
1. Protects public interest (public law)
2. The state prosecutes
3. Objective: punish the criminal
4. Can have attempted crime
Both are wrongful culpable acts causing damage
Delict and breach of contract:
Delict:
1. Excludes non-fulfillment of a duty to perform (real right)
2. Primary remedy = damages
Breach of contract:
1. Breach = non-fulfillment of a contractual obligation to perform
(personal right)
2. Primary remedy: performance of the contract
Critical Law Studies CC ©
Downloaded by Vincent Cosmas ()
, lOMoARcPSD|32110785
CLS cc ©
Delict Pack
2
Delict, the Constitution and fundamental rights:
The Constitution is supreme and conduct inconsistent with it is
invalid.
Fundamental rights can be limited by the law of general application,
but only to the extent that the limitation is reasonable and justifiable
in an open and democratic society based on human dignity equality
and freedom (Section 36).
Courts must promote the values that underlie this society.
International law must be taken into account.
Direct application: the fundamental rights relevant to or connected
with the law of delict include = right to property, life, freedom, privacy,
dignity, equality, freedom of expression, freedom of religion belief and
opinion, the right to assembly, demonstration, picket, petition,
freedom of association, freedom of trade, occupation and profession.
The state must protect fundamental rights and not infringe them
except unless the requirements for Section 36 have been complied
with.
In case of an infringement that is not justified, anyone who is entitled
to relief can approach a competent court.
Indirect application: all private law rules, principles and those
regulating the law of delict are subject to chapter 2 and applies in
particular to the so-called “open-ended or flexible” delictual principles.
For example, the boni mores test for wrongfulness where policy
considerations and factors such as reasonableness, fairness and
justice may play an important part.
Critical Law Studies CC ©
Downloaded by Vincent Cosmas ()
, lOMoARcPSD|32110785
CLS cc ©
Delict Pack
3
THE ACT (CONDUCT)
Consists of a voluntary human commission or omission:
Elements:
1. Human act: where an animal is used as an instrument a human
act is still present. A juristic person can act through its agents
(company) and be held delictually liable for its actions.
Gijzen: held – delictual liability can occur without there being an
act on the part of the defendant, in the case of land subsistence
cases. Such an act must be wrongful: an act and its consequences
may be separated from each other in time and space, but there
always has to be an act.
2. Voluntary conduct: the act must have been performed voluntarily –
the wrongdoer must have had control over his muscular
movements (i.e. If it is susceptible to control b the will of the
person involved).
One’s voluntary conduct does not have to be willed or desired, as
can be seen in the case of S v Russell: X forgot to warn others that
an electric current had been switched on. Someone was
electrocuted. Russell stated that he wasn’t guilty because he hadn’t
willed or desired the outcome.
Court held: that the test was whether he was able to utter a
warning = GUILTY.
3. Commission and Ommission: conduct can be in the form of a
commission or omission. Liability for an omission is in general
more restricted than liability for a positive act (commission). The
law is hesitant to find that there was a legal duty on someone to
act positively and so to prevent damage to another.
The Defence of Automatism:
The voluntary conduct on the part of the defendant is a requirement
for delictual liability.
The defendant could argue that the conduct complained of doesn’t
satisfy the requirement of voluntariness.
This is where someone acted mechanically = sleep, unconscious,
fainting fit, absolute compulsion (X grabs Y’s hand and stabs P using
Y’s hand), epileptic fit, serious intoxication, black out.
If these are present a person is incapable of controlling his bodily
movement = purely mechanical action and that person raises the
defence of automatism
Critical Law Studies CC ©
Downloaded by Vincent Cosmas ()
