Summary Law of Delict in South Africa - LAW OF DELICT (LADE7111)

 Falls under private law, consists of rules that govern the relationship
between individuals and their dealings with each other.
 Purpose of private law – to recognise these interests, delimit them in
relation to each other and harmonise those interests that are in conflict.
 Delict – division of private law
 Obligations – legal relationship between 2 or more persons in terms of
which one party has a right against the other for performance and the
other party has a corresponding duty to perform
 Conduct and involuntary conduct


What is the purpose of delict – when there is an impairment of your legally
recognised interest – there is a delict
 A fundamental premise in law – res perit domino [damages rests where it
falls] each person is responsible for and must bear the harm he suffers. A
person should bear the loss he suffers. It stands to reason where he
contributes to his own damages by his own negligent conduct, this should
be taken into account and his damages reduced accordingly.
 Exceptions:
1. insurance contracts – insurer undertakes to make good the damage
suffered
2. where damage arises from a delict, the wrongdoer is legally obliged to
compensate the injured/aggrieved party.


 A delict is a legal fact, the law takes notice of, however, a delict is not a
legal act because the law attaches consequences to it.
 Def – an act of a person which in a wrongful and culpable way causes
harm to another.


Elements:
1. Act – commission /omission
2. Wrongfulness - unlawful
3. Fault – intention/negligence
4. Causation- legal/factual
5. Harm
 All elements must be present to succeed a claim - facta probanda


 Generalising approach – delictual liability is regulated by principles or
requirements
 Causation approach delict consists of a group/set of separate delicts each
with its own rules


 Within delict there are 3 primary actions:

, 1. actio legis aquiliae
2. actio iniuriarum
3. actio for pain and suffering


 Litis contestation – close of pleadings [pre-trial process is complete]
 Compare the difference between delict and a contract
 Delict and a crime
 Delict – breach of duty imposed by law
 Contract – breach of duty voluntarily assumed.
 Delict – directed at protection of individuals. [private]
 Crime - Directed at upholding public interest [public]


Fundamental rights in the Constitution– 1-11


Learning unit 2
 Conduct is a voluntary human act or omission
- Has to be a human act.
- If a human uses an animal to commit the delict, its regarded as a
human act.


 Conduct performed must be voluntary




Class task
The characteristics of the element of conduct include:
 A positive physical act.
 A positive statement or comment
 A failure to do or say something


 Liability for an omission is in general more restricted than liability for a
positive act [commission] law is hesitant to find that there was a legal
duty on someone to act positively and so prevent damage further.
 Inaction as a part or stage of some positive activity can therefore
constitute or indicate negligence on the part of the actor- negligence by
definition = a failure to take reasonable precautions.
 Many omissions are merely indications of legally deficient positive
conduct.