Study Unit 1 Scope: SA – Law of Delict / America – Law of Tort
Definition:
Wrongful conduct, an act of a person which is wrongful (legal reprehensible) and culpable (legally blameworthy) in a
way that caused loss to another.
Circumstance a person can be held liable for damage/loss caused to another.
Part of Private Law – Law of obligation
Elements of Delict:
Act,
Wrongfulness
Fault,
Causation
Damage = Delict (exception of cases of strict liability)
Law of Delict – PVL 3703 – Second Semester – 2011 Page 1
, Study Unit 2 Introduction:
Elements of Delict – act, wrongfulness, fault, causation and damage = Delict (exception of cases of strict liability)
Role of Law = indicate which interest are recognized by law and under which circumstances they are protected against
infringements and how to balance that interest
Fundamental premise = damage/harm results where it falls
If u break your watch – it’s your fault
If u cause damage to another – u to compensate as the wrongdoer
Wrongdoer to obligation to compensate, prejudice person right to claim compensation.
General Approach Casuistic Approach
SA Law English Law
Change in circumstances and new situations Constant new delicts
Flexible Less Flexible
2 types: Delict causing patrimonial damage and Delict
causing injury to personally
Damages caused by Delict:
Patrimonial Damage/ Actio Legis Injury to Personality/ Actio Action for pain & suffering
Aquiliae Iniuriarum Compensation 4 injury to
Damage 4 wrongful & culpable Satisfaction 4 wrongful & personality
act causing patrimonial damage intentional injury to personality Wrongful /intentional & negligent
Intentional/negligent impairment of
bodily/physical/mental integrity is
claimed
A Crime vs. Law of Delict:
A Crime Law of Delict
Remedies: Penal as tend to punish 4 transgressions Remedies: Compensation for the aggrieved party
against public interest.
Criminal Law Private Law
Breach of Contract vs. Law of Delict:
Breach of Contract Law of Delict
Diff type of wrongful conduct in Private Law
Act by 1 person (contracting party) where a wrongful
& culpable act caused damage to another
Non Fulfillment by contracting party who has a Excludes non Fulfillment of a duty to perform
contractual obligation to perform
Remedies: enforcement, fulfillment to perform a Remedies: damages for non fulfillment
contract
Claim for damage
Not treated as part of law of Delict but law of contract
Law of Delict – PVL 3703 – Second Semester – 2011 Page 2
,Law of Delict = Constitutional and Fundamental Rights
CC – supreme anything inconsistent is invalid
Fundamental rights:
BOR in chapter 2 of CC
Limited by general application if reasonable & justifiable in an open democratic society based on Human Rights,
Equality and freedom
Not an absolute right
Section 36 Limitation Clause
NB of purpose of limitation
Nature & extent of limitation
Relation between limit & purpose
Less restrictive means
Horizontal & Vertical Application:
Horizontal Application: Vertical Application:
Natural & Juristic person State – legislative, executive and judiciary
Direct Horizontal Direct Vertical
Court 2 give effect to fundamental rights by applying & State to respect fundamental rights.
developing common law where legislation doesn’t give Infringement to be reasonable & justifiable in an open
effect 2 that right, unless reasonable & justifiable & ito sec democratic society based on Human dignity, freedom ito
36 of CC section 36.
Indirect Application - open-ended/flexible delictual principles
Private law rules subjected to values in chapter 2 of Constitution.
Boni mores test for wrongfulness
Imputability test for legal causation
Reasonable person test for negligence
Policy consideration eg reasonableness, fairness and justice
Fundamental Rights:
Right to property, life, freedom security, privacy, human dignity, equality, freedom of expression, regligion, belief,
right to assembly, demonstrate, picket and petition
2 rights in conflict = right to privacy vs. right to freedom of expression =need to balance conflicting rights
Fundamental rights in the BOR – higher status – take into account limitation clause
Threat to Fundamental Rights – prejudiced party go to court for relief for a CC Delict
NOT ALL DELICT is a CC Delict!!!
Foot Notes:
Liability without fault – NB Delictual liability = called strict liability
Delict has specific forms of delict – each have their own rules
Hybrid system
Difference between delict and breach of contract is that delict is a breach of a duty imposed by laws whereas breach
of a contract is breach of a duty voluntary assumed.
Cases:
Carmichele v Minister of Safety and Security (Centre for Applied Legal Studies Intervening) 2001 (4) SA 938 (CC) [2]CC
held common law deviated from the sprit & purport of the BOR, Courts have duty to develop common law.
Study Unit 3: Act / Conduct - voluntary human act/conduct or omission
Law of Delict – PVL 3703 – Second Semester – 2011 Page 3
, Must have cause damage/harm 2 another by an act/conduct
Prerequisite for delictual liability
Damage cause by act/conduct
Characteristics:
1. Act of a human being (conduct) / can use an animal as an instrument
Juristic person acting via humans – delictually liable
2. Human Action – needs to be performed voluntary
Person had control of muscular movements
Not willed or desired conduct – forget to tell someone something – e.g. forgot to tell about electricity &
someone got electrocuted – even though not willed still capable of telling but if had a fit & didn’t say – ok cause
wasn’t able to talk
Claim involuntary act = defense automatism
3. Conduct: Positive Act (commissio) or omission (omission)
Defense Automatism:
Act of wrongdoer must be voluntary to be delictually liable
Defendant say didn’t act voluntary but mechanically
Conditions causing person to act involuntary/not culpable of own body movements =(absolute compulsion,
unconsciousness, fainting fit, epileptic fit, intoxication, black out, reflex movement, emotional pressure, mental
disease, hypnosis, heart attack, sleep)
Defenses:
Compulsion: exerted by human force – no choice – have to follow
E.g. X pushed knife into Y hand, Y can’t resist and forces knife into Z. Y didn’t intend the “act”
Relative Compulsion: exerted by human force – had choice to resist or follow
E.g. X points gun at Y and tells on Y to damage Z car, Y follows instructions but could have resisted. Y can escape
delictual liability on “necessity” or absence of fault.
No Defenses:
1) intentionally created the situation where he acted involuntary to harm another - Actio Libera in causa: liable for
culpable conduct
2) Negligent – reasonable man test (drinking and driving) - Sane Automatism: not due to mental illness
Plaintiff 2 prove defendant actual voluntary, Defendant to raise automatism 2 prove absence of conduct.
Van der Merve & Olivier:
Automation doesn’t exclude conduct but can exclude wrongfulness or fault.
2 narrow views as automatism doesn’t mean it’s not voluntary BUT the conduct wasn’t voluntary.
e.g. X has knife in bed @ night, while sleeping attacks Y, X was not voluntary BUT voluntary acts before X injures Y
cause X went to bed with a knife BUT doesn’t cover fault = Not delictually liable.
Law of Delict – PVL 3703 – Second Semester – 2011 Page 4
Definition:
Wrongful conduct, an act of a person which is wrongful (legal reprehensible) and culpable (legally blameworthy) in a
way that caused loss to another.
Circumstance a person can be held liable for damage/loss caused to another.
Part of Private Law – Law of obligation
Elements of Delict:
Act,
Wrongfulness
Fault,
Causation
Damage = Delict (exception of cases of strict liability)
Law of Delict – PVL 3703 – Second Semester – 2011 Page 1
, Study Unit 2 Introduction:
Elements of Delict – act, wrongfulness, fault, causation and damage = Delict (exception of cases of strict liability)
Role of Law = indicate which interest are recognized by law and under which circumstances they are protected against
infringements and how to balance that interest
Fundamental premise = damage/harm results where it falls
If u break your watch – it’s your fault
If u cause damage to another – u to compensate as the wrongdoer
Wrongdoer to obligation to compensate, prejudice person right to claim compensation.
General Approach Casuistic Approach
SA Law English Law
Change in circumstances and new situations Constant new delicts
Flexible Less Flexible
2 types: Delict causing patrimonial damage and Delict
causing injury to personally
Damages caused by Delict:
Patrimonial Damage/ Actio Legis Injury to Personality/ Actio Action for pain & suffering
Aquiliae Iniuriarum Compensation 4 injury to
Damage 4 wrongful & culpable Satisfaction 4 wrongful & personality
act causing patrimonial damage intentional injury to personality Wrongful /intentional & negligent
Intentional/negligent impairment of
bodily/physical/mental integrity is
claimed
A Crime vs. Law of Delict:
A Crime Law of Delict
Remedies: Penal as tend to punish 4 transgressions Remedies: Compensation for the aggrieved party
against public interest.
Criminal Law Private Law
Breach of Contract vs. Law of Delict:
Breach of Contract Law of Delict
Diff type of wrongful conduct in Private Law
Act by 1 person (contracting party) where a wrongful
& culpable act caused damage to another
Non Fulfillment by contracting party who has a Excludes non Fulfillment of a duty to perform
contractual obligation to perform
Remedies: enforcement, fulfillment to perform a Remedies: damages for non fulfillment
contract
Claim for damage
Not treated as part of law of Delict but law of contract
Law of Delict – PVL 3703 – Second Semester – 2011 Page 2
,Law of Delict = Constitutional and Fundamental Rights
CC – supreme anything inconsistent is invalid
Fundamental rights:
BOR in chapter 2 of CC
Limited by general application if reasonable & justifiable in an open democratic society based on Human Rights,
Equality and freedom
Not an absolute right
Section 36 Limitation Clause
NB of purpose of limitation
Nature & extent of limitation
Relation between limit & purpose
Less restrictive means
Horizontal & Vertical Application:
Horizontal Application: Vertical Application:
Natural & Juristic person State – legislative, executive and judiciary
Direct Horizontal Direct Vertical
Court 2 give effect to fundamental rights by applying & State to respect fundamental rights.
developing common law where legislation doesn’t give Infringement to be reasonable & justifiable in an open
effect 2 that right, unless reasonable & justifiable & ito sec democratic society based on Human dignity, freedom ito
36 of CC section 36.
Indirect Application - open-ended/flexible delictual principles
Private law rules subjected to values in chapter 2 of Constitution.
Boni mores test for wrongfulness
Imputability test for legal causation
Reasonable person test for negligence
Policy consideration eg reasonableness, fairness and justice
Fundamental Rights:
Right to property, life, freedom security, privacy, human dignity, equality, freedom of expression, regligion, belief,
right to assembly, demonstrate, picket and petition
2 rights in conflict = right to privacy vs. right to freedom of expression =need to balance conflicting rights
Fundamental rights in the BOR – higher status – take into account limitation clause
Threat to Fundamental Rights – prejudiced party go to court for relief for a CC Delict
NOT ALL DELICT is a CC Delict!!!
Foot Notes:
Liability without fault – NB Delictual liability = called strict liability
Delict has specific forms of delict – each have their own rules
Hybrid system
Difference between delict and breach of contract is that delict is a breach of a duty imposed by laws whereas breach
of a contract is breach of a duty voluntary assumed.
Cases:
Carmichele v Minister of Safety and Security (Centre for Applied Legal Studies Intervening) 2001 (4) SA 938 (CC) [2]CC
held common law deviated from the sprit & purport of the BOR, Courts have duty to develop common law.
Study Unit 3: Act / Conduct - voluntary human act/conduct or omission
Law of Delict – PVL 3703 – Second Semester – 2011 Page 3
, Must have cause damage/harm 2 another by an act/conduct
Prerequisite for delictual liability
Damage cause by act/conduct
Characteristics:
1. Act of a human being (conduct) / can use an animal as an instrument
Juristic person acting via humans – delictually liable
2. Human Action – needs to be performed voluntary
Person had control of muscular movements
Not willed or desired conduct – forget to tell someone something – e.g. forgot to tell about electricity &
someone got electrocuted – even though not willed still capable of telling but if had a fit & didn’t say – ok cause
wasn’t able to talk
Claim involuntary act = defense automatism
3. Conduct: Positive Act (commissio) or omission (omission)
Defense Automatism:
Act of wrongdoer must be voluntary to be delictually liable
Defendant say didn’t act voluntary but mechanically
Conditions causing person to act involuntary/not culpable of own body movements =(absolute compulsion,
unconsciousness, fainting fit, epileptic fit, intoxication, black out, reflex movement, emotional pressure, mental
disease, hypnosis, heart attack, sleep)
Defenses:
Compulsion: exerted by human force – no choice – have to follow
E.g. X pushed knife into Y hand, Y can’t resist and forces knife into Z. Y didn’t intend the “act”
Relative Compulsion: exerted by human force – had choice to resist or follow
E.g. X points gun at Y and tells on Y to damage Z car, Y follows instructions but could have resisted. Y can escape
delictual liability on “necessity” or absence of fault.
No Defenses:
1) intentionally created the situation where he acted involuntary to harm another - Actio Libera in causa: liable for
culpable conduct
2) Negligent – reasonable man test (drinking and driving) - Sane Automatism: not due to mental illness
Plaintiff 2 prove defendant actual voluntary, Defendant to raise automatism 2 prove absence of conduct.
Van der Merve & Olivier:
Automation doesn’t exclude conduct but can exclude wrongfulness or fault.
2 narrow views as automatism doesn’t mean it’s not voluntary BUT the conduct wasn’t voluntary.
e.g. X has knife in bed @ night, while sleeping attacks Y, X was not voluntary BUT voluntary acts before X injures Y
cause X went to bed with a knife BUT doesn’t cover fault = Not delictually liable.
Law of Delict – PVL 3703 – Second Semester – 2011 Page 4
