LAW OF DELICT
DEFINING DELICT
The definition for delict comes at a crossroads between criminal law and a breach of
contract.
The difference between a delict and a crime is that a crime is a wrong viewed from the
perspective of the state whilst a delict is viewed from the perspective of private individuals.
The difference between a delict and a breach of contract is that a delict consists of a breach
of a duty imposed by law independently whilst a breach of contract is consisting of a breach
of a duty voluntarily assumed by private parties.
RG McKerron: gives a broad definition where the word delict in Roman law referred to both
criminal and civil wrong doings. RG refers to delict as per English law as a civil wrong. A
person right to claim redress for the breach of a duty owed by another person.
DEFINITION: Delict is the breach of duty imposed by law, independent of the will of the
person bound by it. This duty then grounds an action for damages owed when
the person who is owed the duty has suffered a harm in consequence of the
breach.
Van der Merwe & Oliver: delict is a principle-based approach, broad ideas instead of definite
rules.
DEFINITION: Delict is a wrongful and culpable act which cause harm to another and
infringes on another’s personal interest.
Elements from definition:
Wrongfulness
Culpability/ fault
Act
Causation
Harm (either to property or personal interest)
, PQR Boberg: has an English law influence. Criticises VDM & Oliver because they mentioned
fault as one of the elements but in SA law, strict liability is imposed (liability without fault).
E.g. Vicarious liability where and employer would be liable for employees conduct or an
animal owner liable for animal’s conduct.
DEFINITION: Delict is an infringement of another person’s interest (right) – limited
definition because a duty is not imposed by law.
Van der Walt & Midgley: uses both general and specific definitions.
DEFINITION: Delict is the wrongful and blameworthy conduct which causes harm to
another.
NOTE: causes of action may differ but the underlying elements and principles of delict are
standard. Relief will be provided if the facts justify the relief of the principles in each
category of harm, it must be apparent from the conduct that the delict occurred, and relief
is necessary
Neethling and Potgieter: delict is viewed as part of private law but is becoming more and
more about social interests and the Constitution. The generalised approach is subject to
distinguishing between patrimonial delict and non-patrimonial delict. Exceptions include
strict liability and forms of harm that are known in practice under specific names e.g.
misrepresentation, emotional shock etc.
ELEMENTS OF DELICT:
Harm- different types such as damage to property, pain and suffering &
damage to personality.
Conduct- act or omission, where conduct must be closely situated to harm +
look for wrongfulness if conduct is a positive act.
Causation- factual or legal
Wrongfulness- broad test based on reasonableness of imposing liability
Capacity- ability to distinguish between right and wrong.
Fault- negligence or intent.
REMEDIES:
DEFINING DELICT
The definition for delict comes at a crossroads between criminal law and a breach of
contract.
The difference between a delict and a crime is that a crime is a wrong viewed from the
perspective of the state whilst a delict is viewed from the perspective of private individuals.
The difference between a delict and a breach of contract is that a delict consists of a breach
of a duty imposed by law independently whilst a breach of contract is consisting of a breach
of a duty voluntarily assumed by private parties.
RG McKerron: gives a broad definition where the word delict in Roman law referred to both
criminal and civil wrong doings. RG refers to delict as per English law as a civil wrong. A
person right to claim redress for the breach of a duty owed by another person.
DEFINITION: Delict is the breach of duty imposed by law, independent of the will of the
person bound by it. This duty then grounds an action for damages owed when
the person who is owed the duty has suffered a harm in consequence of the
breach.
Van der Merwe & Oliver: delict is a principle-based approach, broad ideas instead of definite
rules.
DEFINITION: Delict is a wrongful and culpable act which cause harm to another and
infringes on another’s personal interest.
Elements from definition:
Wrongfulness
Culpability/ fault
Act
Causation
Harm (either to property or personal interest)
, PQR Boberg: has an English law influence. Criticises VDM & Oliver because they mentioned
fault as one of the elements but in SA law, strict liability is imposed (liability without fault).
E.g. Vicarious liability where and employer would be liable for employees conduct or an
animal owner liable for animal’s conduct.
DEFINITION: Delict is an infringement of another person’s interest (right) – limited
definition because a duty is not imposed by law.
Van der Walt & Midgley: uses both general and specific definitions.
DEFINITION: Delict is the wrongful and blameworthy conduct which causes harm to
another.
NOTE: causes of action may differ but the underlying elements and principles of delict are
standard. Relief will be provided if the facts justify the relief of the principles in each
category of harm, it must be apparent from the conduct that the delict occurred, and relief
is necessary
Neethling and Potgieter: delict is viewed as part of private law but is becoming more and
more about social interests and the Constitution. The generalised approach is subject to
distinguishing between patrimonial delict and non-patrimonial delict. Exceptions include
strict liability and forms of harm that are known in practice under specific names e.g.
misrepresentation, emotional shock etc.
ELEMENTS OF DELICT:
Harm- different types such as damage to property, pain and suffering &
damage to personality.
Conduct- act or omission, where conduct must be closely situated to harm +
look for wrongfulness if conduct is a positive act.
Causation- factual or legal
Wrongfulness- broad test based on reasonableness of imposing liability
Capacity- ability to distinguish between right and wrong.
Fault- negligence or intent.
REMEDIES:
