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BIANCA & JAMIE ©DLR 320 NOTES
Chapter One ........................................................................................... 1
Chapter Two...........................................................................................6
Chapter Three.......................................................................................11
Chapter Four........................................................................................63
*(Please remember to consult the DLR notes info page sent)
Chapter One
Delict: general nature and place in the legal system
♦ Delict’s role in society to indicate which interests are recognised by law, when
they are protected against infringement (that is, when the impairment of a
legally recognised interest constitutes a delict) and how such a disturbance in
the harmonious balance of interests may be restored.
♦ Fundamental premise; damage rests where it falls, each person must bear the
damage he suffers (res perit domino). There are certain instances in which the
burden of damage is shifted from one person to another, with the consequence
that the latter incurs an obligation to bear the formers damage and/or provide
compensation. There is an obligation on the wrongdoer to make compensation
for damage suffered, person whom was prejudiced has corresponding right to
claim. Thus, an obligation is created between 2 parties. Law of delict thus falls
under part of private law known as law of obligations (along with contract
law)
♦ Definition: “A delict is the act of a person that in a wrongful and culpable way
causes harm to another. All five requirements or elements, ie an act,
wrongfulness, fault, causation and harm must be present before the conduct
complained of may be classified as a delict. If any one (or more) of these
elements is missing, there is no question of a delict and consequently, no
liability”
♦ Generalising approach; governs the question of delictual liability. General
principles regulate delictual liability. Principles apply irrespective of which
individual interest is hindered and irrespective of the way impairment was
caused.
♦ Casuistic approach of the English & Roman law of delict contrasts with the
generalising approach. The law of delict consists of a group or set of separate
delicts (torts or delicta), each more or less with its own rules. The aggrieved
party may thus only render the wrongdoer liable if his conduct satisfies all the
requirements of a specific delict.
♦ SA embraces general approach and thus been able to recognise and protect
individual interest and adapt to modern times.
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♦ A distinction made in principle between delicts that cause patrimonial damage
(damnum iniuria datum) and those that cause injury to personality (iniuria).
Actions are grounded, which form two of the pillars of the law of delict, ie the
actio legis Aquiliae, in terms of which damages for the wrongful and culpable
(intentional or negligent) causing of patrimonial damage are claimed, and the
actio iniuriarum, which is directed at satisfaction (solatium or sentimental
damages) for the wrongful and intentional injury to personality. These two
actions comprehensively cover the whole area of delictual liability (some
exceptions). The most important remaining action (may be regarded as the
third pillar) is the action for pain and suffering, by which compensation for
injury to personality as a result of the wrongful and negligent (or intentional)
impairment of bodily or physical-mental integrity is claimed.
♦ Although in terms of the generalising approach, the wrongful culpable causing
of patrimonial loss forms the basis for the Aquilian action, and the wrongful
intentional injury to personality constitutes an iniuria, it is nevertheless
inevitable that forms of damnum iniuria datum and iniuria which occur
frequently in practice become known as separate delicts under specific names.
Delict and breach of contract
Ø Similarity; Breach of contract constitutes a different form of wrongful conduct
in private law. As with a delict, breach of contract is normally an act by one
person (contracting party) which in a wrongful and culpable way causes
damage to another (contracting party). Both are species of the genus ‘wrongful
conduct’ in private law.
Ø Difference;
o Breach of contract constituted by the non-fulfilment by a contractual
party of a contractual personal right (claim) or an obligation to
perform. Remedy: enforcement, fulfilment or execution. Damages is
used as a secondary aid.
o Delict is constituted by the infringement of any legally recognised
interest of another party, excluding the non-fulfilment of a duty to
perform by a contractual party. Consequently, the delictual remedies
are primarily directed at damages (or satisfaction), and not at
fulfilment.
o Furthermore, breach of contract is not formally treated as part of the
law of delict but is considered to be part of the law of contract. Law of
contract have their own remedies which are not applicable to delict.
o This distinction is clearly apparent from the fact that one and the same
act may render the wrongdoer liable ex contractu as well as ex delicto.
Ø McKerrons point of view; the distinction between a delict and breach of
contract lies in the fact that a delict consists in the “breach of a duty imposed
by law” whereas breach of contract comprises the “breach of a duty voluntarily
assumed”.
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Delict and crime
v Similarity; both are culpable acts, some crimes cause patrimonial damage or
injury to personality.
v Difference
o distinction between private and public law.
o Private law is directed at the protection of individual (private) interests,
while public law is directed at upholding the public interest.
Accordingly, delictual remedies differ substantially from criminal
sanctions. Delictual remedies are compensatory in character,
compensating or indemnifying the aggrieved party for the harm the
wrongdoer has caused.
o Criminal sanctions are of a penal nature, and are intended to punish
the criminal for his transgression against the public interest
o Further distinction, one and the same act may found delictual, as well
as criminal, liability. They do not always overlap. Difference is
emphasised by the fact that a delict is not necessarily a crime, and vice
versa.
Historical development of delictual liability
Read through page 8-16 on your own.
Action for pain and suffering
o Unlike Aquilian action and the actio iniuriarum, the action for pain
and suffering did not originate in Roman law. No compensation could
be claimed under Roman law for the negligent causing of bodily
injuries
o Roman-Dutch law under the influence of Germanic customary law
however created the position that pain, suffering and bodily
disfigurement as a result of physical injuries founded an action.
o This action has been adopted by SA law and is considered by the courts
to be a unique action that cannot be classified with actio legis Aquiliae
or with the actio iniuriarum.
o Courts developed the action with English law as an important influence
as it now also protects the physical-mental integrity of a person
entirely. This protection is particularly apparent insofar as
psychological or mental injury is equated with physical (bodily) injury
in the area of emotional shock, and loss of (or shortened) life
expectancy, amenities of life and health are recognised as injuries to
personality for which compensation may be claimed.
o There is no logic in further subdividing such harm to the personality by
making subtle distinctions.
The law of delict, the Constitution and fundamental (human) rights
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ÿ Chapter 2 is applicable to all law, therefore also to the law of delict as well.
Applies vertically and horizontally. A few rights relevant to law of delict; the
right to property, the right to life, the right to freedom and security of the
person (including the right to bodily and psychological integrity), the right to
privacy, the right to human dignity etc.
ÿ The fundamental rights may be limited by a law of general application, only to
the extent that the limitation is reasonable and justifiable in an open &
democratic society based on human dignity, equality and freedom. Not
absolute rights. In judging the lawfulness of a limitation, all relevant factors
must be taken into account, including the nature of the fundamental right, the
importance of the purpose of the limitation, the nature and extent of the
limitation, the relation between the limitation and its purpose, and less
restrictive means of achieving this purpose (limitation clause S36)
ÿ Situations will unavoidably occur where two or more of these fundamental
rights are in conflict, for example, the right to privacy (or fama) versus the
right to freedom of expression, or the right to assembly, demonstration, picket
and petition versus the right to freedom of trade, occupation and profession.
In such situations, there will have to be a careful and correct balancing or
weighing-up of the opposing rights.
ÿ In exercising this value judgment (as well as in the process of weighing-up
opposing fundamental rights), the general principles which have already
crystallised in our law with regard to the reasonableness or boni mores (legal
convictions of the community) criterion for delictual wrongfulness may aid as
prima facie indications of the reasonableness of a limitation in terms of the
Bill of Rights.
ÿ Example RH v DE; used to be action for a spouse agaisnt 3rd party for causing
break down of marriage but court stated no longer part of SA law as
convictions of community changed.
ÿ The vertical and horizontal application of the Constitution can take place in a
direct as well as an indirect manner, although (because of unavoidable
overlap) a clear distinction can’t be made between them.
ÿ Direct application;
o Direct vertical application means that the state must respect the
fundamental rights (and may therefore not infringe them) except
insofar as such infringement is reasonable and justifiable according to
the limitation clause.
o Direct horizontal application entails that the courts must give effect to
an applicable fundamental right by applying, and where necessary,
developing the common law insofar as legislation does not give effect to
that right, except where it is reasonable and justifiable to develop the
common law to limit the right in accordance with the limitation clause.
o Possibility of the development of a so-called “constitutional delict”, ie
that the infringement of a fundamental right per se constitutes a
“delict”. The requirements for a delict and those for a constitutional
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