Delict - Final Exam Study Notes 2025
Delict Final Exam 2025 – Study Notes:
Chapter 1 & 2 – Intro:
Requirement: READ through Chapters 1 and 2 on the foundations of this course. You need to know who is
"the victim" and who is "the wrongdoer". You need to have a basic idea about the gist of this course. And
you need to know how to use the relevant sources of law.
Study Notes:
A. Gist and Core Focus of the Course
1. Subject Matter and Purpose:
◦ The course is fundamentally about injuries being suffered by people (such as to their bodies,
property, and/or dignity) and the law’s response in repairing those injuries.
◦ Law of injuries aim = ensure corrective justice by stipulating the conditions for and
consequences of reparatory liability for certain interpersonal rights infringements that do not
necessarily arise from contractual arrangements or crimes.
◦ Goal = provide reparations to the victim to reverse the effects of the harm caused by the
wrongdoer. Reparations can include payment for repairs (e.g., car damage), public apologies,
retractions, or money paid as a sign of acknowledging the wrong.
2. Traditional vs. Broad Definition:
◦ The traditional definition holds that the common law of delict is based on five general
elements: (1) an act; (2) wrongfulness; (3) culpability (or fault); (4) causation; and (5) harm.
◦ However, the Law of Injuries must be defined broadly to include constitutional-law injuries,
statutory-law injuries, and customary-law injuries, as it would be incorrect to assert that all
injuries are regulated by the 5 common-law elements.
B. Identifying the Parties
Parties in an injury-law dispute defined based on their roles in causing or suffering harm =
1. The Wrongdoer:
Person causing the harm. The wrongdoer is considered morally blameworthy and ought to be
held responsible.
In legal cases, the wrongdoer is sometimes referred to as "the defendant" or "the respondent".
2. The Victim:
The person who has suffered harm caused by the wrongdoer.
In legal cases, the victim is sometimes referred to as "the plaintiff" or "the applicant".
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,Delict - Final Exam Study Notes 2025
C. How to Use the Relevant Sources of Law
Delict = navigating multiple sources of law simultaneously (Constitution, statutes, customary
law, and common law).
1. The Single-System-of-Law Principle
There is only 1 system of law in South Africa & is shaped by the Constitution. The Constitution of
the Republic of South Africa, 1996, is the supreme law of the country, and any law or conduct
inconsistent with it is invalid (Section 2). The Constitution provides the "golden thread" that runs
through the legal system.
2. The GPS: Adjudicative Subsidiarity
Adjudicative Subsidiarity = the framework for navigating the different sources of law in a
transformative way. This approach recognizes that the Constitution is always speaking (either
explicitly or implicitly) in injury-law disputes because the harms concern rights infringements,
which are constitutional rights.
The method (or "GPS") for applying the sources is sequential:
Step 1: Identify the Constitutional Right Violated
• The dispute begins by identifying that one or more constitutional rights (like property, bodily
integrity, dignity, privacy, or bodily freedom) have been violated, as this violation indicates harm.
Step 2: Prioritize Legislation (Statutes)
• After identifying the constitutional right, the next source to consult is legislation.
• If legislation exists to regulate the right (like PEPUDA for hate speech), a litigant may not
bypass that legislation and rely directly on the Constitution or common law.
• If the legislation is deficient, courts have the power to:
◦ Strike it down if it is inconsistent with the Constitution (Section 172).
◦ Interpret it consistently with the Constitution (Section 39(2)), ensuring it promotes the spirit,
purport, and objects of the Bill of Rights.
Step 3: Consult Common Law or Customary Law (If Legislation is not there)
• Only if there is no applicable legislation, or if the existing legislation has been entirely struck
down, do lawyers turn to the common law or African customary law.
• The common law and African customary law share the same legal status (Section 211(3)).
• Determining whether common law or customary law applies depends on the context:
◦ If there is an agreement between the parties to apply customary law, that agreement should
be honored.
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,Delict - Final Exam Study Notes 2025
◦ If no agreement exists and both parties live in the same community or according to the same
cultural rites, the law is determined based on the behavior and context of the parties (e.g.,
general way of life, nature of the transaction).
◦ If parties are from different communities, the version of customary law to be applied is the
law of the area where the wrongdoer resides or works.
Step 4: Ensure Constitutional Compliance (Development)
• Whether common law or customary law is applied, it must be constitutionally compliant.
• The court will either apply the law as it stands or develop it to give effect to the constitutional
right, promoting the spirit, purport, and objects of the Bill of Rights.
Step 5: Constitutional Damages
• Constitutional damages (like the Life Esidimeni Tragedy) are considered a remedy of last
resort, typically only sought if all other remedies flowing from legislation, common law, or
customary law have been exhausted.
Analogy for Understanding Adjudicative Subsidiarity:
The system of sources in the Law of Injuries is like navigating a busy city using a high-tech GPS
(the Constitution).
The GPS provides the ultimate destination (Justice/Constitutional Rights Protection). It doesn't
give street-level detail, but it sets the non-negotiable standards. When you start your journey (an
injury dispute), you must first check if a dedicated highway (Legislation) has been built to reach
that destination. If the highway exists, you must take it. If the highway is flawed
(unconstitutional), the GPS can instruct you to repair it or rebuild it. Only if there is no dedicated
highway do you fall back onto the older, local roads (Common Law or Customary Law), which
must also be patched up or rerouted to meet the ultimate destination set by the GPS. Only if all
roads fail do you try to fly there directly (Constitutional Damages).
3|Page
, Delict - Final Exam Study Notes 2025
Chapter 10 – Aquilian Harm:
Requirement: STUDY Chapter 10 (Aquilian Harm) para 10.1 and the case law prescribed there. You must
be able to define patrimonial harm, distinguish between physical harm and pure economic loss, and
apply this to a set of facts. The rest of the chapter will not be examinable.
Study Notes:
A. Context and Origin of Aquilian Liability
• Aquilian Harm is the largest component of the discussion on property harm under the
common law of property injuries.
• The rules of Aquilian liability developed from the ancient Roman law action called the actio
legis Aquiliae (or actio inuiriarum in Roman law, in contrast to actio legis Aquiliae for property
injuries).
• The foundational element of Aquilian liability is patrimonial harm. While conduct usually
comes first on a timeline, harm is the crucial "trigger word" for the law of delict.
B. Defining Patrimonial Harm
• Definition: Patrimonial harm is broadly defined by academics as the "diminution" (reduction)
of a person’s estate.
• Scope of Loss: Both past and future harm are relevant in determining patrimonial harm.
• Authoritative Case: The definition of patrimonial harm was authoritatively set out in Union
Government (Minister of Railways and Harbours) v Warneke 1911 AD 657.
C. Patrimonial Harm as a Foundational Element
• The element of damage or loss is fundamental to the Aquilian action.
• The right of action is incomplete until damage is actually caused to the plaintiff by reason of
the defendant’s wrongful conduct.
• Whether a plaintiff has suffered damage is a fact that must be established on a balance of
probabilities.
• Once damage is established, a court will quantify the loss, even if this requires "a degree of
guesswork".
• A distinction exists between accrued or past damage (damage that has already materialized)
and prospective damage (damage that has not yet materialized).
• A person cannot sue solely for prospective damages; prospective damages are usually
awarded ancillary to accrued damages.
4|Page
Delict Final Exam 2025 – Study Notes:
Chapter 1 & 2 – Intro:
Requirement: READ through Chapters 1 and 2 on the foundations of this course. You need to know who is
"the victim" and who is "the wrongdoer". You need to have a basic idea about the gist of this course. And
you need to know how to use the relevant sources of law.
Study Notes:
A. Gist and Core Focus of the Course
1. Subject Matter and Purpose:
◦ The course is fundamentally about injuries being suffered by people (such as to their bodies,
property, and/or dignity) and the law’s response in repairing those injuries.
◦ Law of injuries aim = ensure corrective justice by stipulating the conditions for and
consequences of reparatory liability for certain interpersonal rights infringements that do not
necessarily arise from contractual arrangements or crimes.
◦ Goal = provide reparations to the victim to reverse the effects of the harm caused by the
wrongdoer. Reparations can include payment for repairs (e.g., car damage), public apologies,
retractions, or money paid as a sign of acknowledging the wrong.
2. Traditional vs. Broad Definition:
◦ The traditional definition holds that the common law of delict is based on five general
elements: (1) an act; (2) wrongfulness; (3) culpability (or fault); (4) causation; and (5) harm.
◦ However, the Law of Injuries must be defined broadly to include constitutional-law injuries,
statutory-law injuries, and customary-law injuries, as it would be incorrect to assert that all
injuries are regulated by the 5 common-law elements.
B. Identifying the Parties
Parties in an injury-law dispute defined based on their roles in causing or suffering harm =
1. The Wrongdoer:
Person causing the harm. The wrongdoer is considered morally blameworthy and ought to be
held responsible.
In legal cases, the wrongdoer is sometimes referred to as "the defendant" or "the respondent".
2. The Victim:
The person who has suffered harm caused by the wrongdoer.
In legal cases, the victim is sometimes referred to as "the plaintiff" or "the applicant".
1|Page
,Delict - Final Exam Study Notes 2025
C. How to Use the Relevant Sources of Law
Delict = navigating multiple sources of law simultaneously (Constitution, statutes, customary
law, and common law).
1. The Single-System-of-Law Principle
There is only 1 system of law in South Africa & is shaped by the Constitution. The Constitution of
the Republic of South Africa, 1996, is the supreme law of the country, and any law or conduct
inconsistent with it is invalid (Section 2). The Constitution provides the "golden thread" that runs
through the legal system.
2. The GPS: Adjudicative Subsidiarity
Adjudicative Subsidiarity = the framework for navigating the different sources of law in a
transformative way. This approach recognizes that the Constitution is always speaking (either
explicitly or implicitly) in injury-law disputes because the harms concern rights infringements,
which are constitutional rights.
The method (or "GPS") for applying the sources is sequential:
Step 1: Identify the Constitutional Right Violated
• The dispute begins by identifying that one or more constitutional rights (like property, bodily
integrity, dignity, privacy, or bodily freedom) have been violated, as this violation indicates harm.
Step 2: Prioritize Legislation (Statutes)
• After identifying the constitutional right, the next source to consult is legislation.
• If legislation exists to regulate the right (like PEPUDA for hate speech), a litigant may not
bypass that legislation and rely directly on the Constitution or common law.
• If the legislation is deficient, courts have the power to:
◦ Strike it down if it is inconsistent with the Constitution (Section 172).
◦ Interpret it consistently with the Constitution (Section 39(2)), ensuring it promotes the spirit,
purport, and objects of the Bill of Rights.
Step 3: Consult Common Law or Customary Law (If Legislation is not there)
• Only if there is no applicable legislation, or if the existing legislation has been entirely struck
down, do lawyers turn to the common law or African customary law.
• The common law and African customary law share the same legal status (Section 211(3)).
• Determining whether common law or customary law applies depends on the context:
◦ If there is an agreement between the parties to apply customary law, that agreement should
be honored.
2|Page
,Delict - Final Exam Study Notes 2025
◦ If no agreement exists and both parties live in the same community or according to the same
cultural rites, the law is determined based on the behavior and context of the parties (e.g.,
general way of life, nature of the transaction).
◦ If parties are from different communities, the version of customary law to be applied is the
law of the area where the wrongdoer resides or works.
Step 4: Ensure Constitutional Compliance (Development)
• Whether common law or customary law is applied, it must be constitutionally compliant.
• The court will either apply the law as it stands or develop it to give effect to the constitutional
right, promoting the spirit, purport, and objects of the Bill of Rights.
Step 5: Constitutional Damages
• Constitutional damages (like the Life Esidimeni Tragedy) are considered a remedy of last
resort, typically only sought if all other remedies flowing from legislation, common law, or
customary law have been exhausted.
Analogy for Understanding Adjudicative Subsidiarity:
The system of sources in the Law of Injuries is like navigating a busy city using a high-tech GPS
(the Constitution).
The GPS provides the ultimate destination (Justice/Constitutional Rights Protection). It doesn't
give street-level detail, but it sets the non-negotiable standards. When you start your journey (an
injury dispute), you must first check if a dedicated highway (Legislation) has been built to reach
that destination. If the highway exists, you must take it. If the highway is flawed
(unconstitutional), the GPS can instruct you to repair it or rebuild it. Only if there is no dedicated
highway do you fall back onto the older, local roads (Common Law or Customary Law), which
must also be patched up or rerouted to meet the ultimate destination set by the GPS. Only if all
roads fail do you try to fly there directly (Constitutional Damages).
3|Page
, Delict - Final Exam Study Notes 2025
Chapter 10 – Aquilian Harm:
Requirement: STUDY Chapter 10 (Aquilian Harm) para 10.1 and the case law prescribed there. You must
be able to define patrimonial harm, distinguish between physical harm and pure economic loss, and
apply this to a set of facts. The rest of the chapter will not be examinable.
Study Notes:
A. Context and Origin of Aquilian Liability
• Aquilian Harm is the largest component of the discussion on property harm under the
common law of property injuries.
• The rules of Aquilian liability developed from the ancient Roman law action called the actio
legis Aquiliae (or actio inuiriarum in Roman law, in contrast to actio legis Aquiliae for property
injuries).
• The foundational element of Aquilian liability is patrimonial harm. While conduct usually
comes first on a timeline, harm is the crucial "trigger word" for the law of delict.
B. Defining Patrimonial Harm
• Definition: Patrimonial harm is broadly defined by academics as the "diminution" (reduction)
of a person’s estate.
• Scope of Loss: Both past and future harm are relevant in determining patrimonial harm.
• Authoritative Case: The definition of patrimonial harm was authoritatively set out in Union
Government (Minister of Railways and Harbours) v Warneke 1911 AD 657.
C. Patrimonial Harm as a Foundational Element
• The element of damage or loss is fundamental to the Aquilian action.
• The right of action is incomplete until damage is actually caused to the plaintiff by reason of
the defendant’s wrongful conduct.
• Whether a plaintiff has suffered damage is a fact that must be established on a balance of
probabilities.
• Once damage is established, a court will quantify the loss, even if this requires "a degree of
guesswork".
• A distinction exists between accrued or past damage (damage that has already materialized)
and prospective damage (damage that has not yet materialized).
• A person cannot sue solely for prospective damages; prospective damages are usually
awarded ancillary to accrued damages.
4|Page
