SO UT H A F R I C A N L AW · ST UDY N OT ES
The Law of Delict
Introduction and general principles: conduct and
wrongfulness
Part I: Introduction · Part II: Chapters 2 and 3
,OVERVIEW
Five elements, all required
1 2 3 4 5
Conduct Wrongfulness Fault Causation Damage
A voluntary human Infringement of a Intent or negligence Factual and legal Patrimonial and/or
act or omission right or breach of a causation non-patrimonial loss
legal duty, judged by
the boni mores
Ch 2 Ch 3 Ch 4 (not yet covered) Ch 5 Ch 6
Missing any one element = no delict = no liability.
,CHAPTER 1 · INTRODUCTION
Nature and place of delict
DEFAULT RUL E THE EXCEPTION
The law of delict identifies situations where the
Res perit domino burden of damage shifts from the victim to a
wrongdoer, who must compensate.
Damage rests where it falls: each person
bears their own loss. DEFINITION OF A DELICT
The act of a person that, in a wrongful
and culpable way, causes harm to
another.
, CHAPTER 1 · INTRODUCTION
Generalising vs casuistic approach
SOUTH AFRICAN LAW ENGL ISH / OLD ROMAN L AW
Generalising approach Casuistic approach
• General principles applied to any interest • A fixed list of named torts or delicts
infringed • Each with its own rules
• Adapts to new situations (privacy, goodwill) • Less easily adapted to new situations
through judicial development
• No need to wait for legislation
Recurring fact patterns crystallise into named forms (dependants' action, negligent misrepresentation, defamation,
wrongful arrest), but these remain species of the general genus "delict".
The Law of Delict
Introduction and general principles: conduct and
wrongfulness
Part I: Introduction · Part II: Chapters 2 and 3
,OVERVIEW
Five elements, all required
1 2 3 4 5
Conduct Wrongfulness Fault Causation Damage
A voluntary human Infringement of a Intent or negligence Factual and legal Patrimonial and/or
act or omission right or breach of a causation non-patrimonial loss
legal duty, judged by
the boni mores
Ch 2 Ch 3 Ch 4 (not yet covered) Ch 5 Ch 6
Missing any one element = no delict = no liability.
,CHAPTER 1 · INTRODUCTION
Nature and place of delict
DEFAULT RUL E THE EXCEPTION
The law of delict identifies situations where the
Res perit domino burden of damage shifts from the victim to a
wrongdoer, who must compensate.
Damage rests where it falls: each person
bears their own loss. DEFINITION OF A DELICT
The act of a person that, in a wrongful
and culpable way, causes harm to
another.
, CHAPTER 1 · INTRODUCTION
Generalising vs casuistic approach
SOUTH AFRICAN LAW ENGL ISH / OLD ROMAN L AW
Generalising approach Casuistic approach
• General principles applied to any interest • A fixed list of named torts or delicts
infringed • Each with its own rules
• Adapts to new situations (privacy, goodwill) • Less easily adapted to new situations
through judicial development
• No need to wait for legislation
Recurring fact patterns crystallise into named forms (dependants' action, negligent misrepresentation, defamation,
wrongful arrest), but these remain species of the general genus "delict".
