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Private Law 373 notes
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Full set of notes for Private Law 373. Includes all the prescribed cases as well.
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Chapter 11. INTRODUCTION: WHAT IS A “DELICT” AND WHAT IS THE FUNCTION OF THE LAW OF DELICT?
• Where does the law of delict fit in?
○ National law
▪ Private law
□ Property
□ Persons
□ Obligations
Law of delict
• Development
○ Part of a hybrid system
▪ Did not all originate in one place - mixed bag
▪ First place: Roman law - allowed individuals to claim patrimonial loss for the injuries they had (Lex Acquile). Actio iniuriarum provided for this as w
▪ Second place: Roman Dutch Law - germanic
▪ English law (common law)
▪ Constitution - certain provisions that influence the law of delict. Some laws protect and promote those victims of a delict
• Nature of the law of delict
○ Fundamental principle
▪ Damage rests where it falls - res perit domino
□ Influenced by the legal convictions of the society
Society indicates if you suffer loss, must look at yourself
Can't hold someone else responsible
Inherently flexible - general rule, you are responsible, but there are exceptions to this rule, and someone else may be responsible for th
harm that you suffer
◊ In some instances, the conduct of someone else has inherently harmed you, therefore they are responsible for making good on
that harm
□ Need to figure out which interests are protected, which can you sue someone else for and which interests must you bear yourself
○ Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA 2006 SCA
▪ Court confirmed that the first principle of the law of delict is that everyone has to bear the loss that he or she suffers
○ Therefore in some instances, damages does not rest where it falls
○ Generally, it is about compensation
▪ Figuring out what kind of compensation the victim is entitled to
○ Protecting the rights if the wrong party
▪ General rule: two parties - plaintiff, defendant
□ When the plaintiff sues the defendant, the plaintiff is attempting to vindicate their rights and allocating loss
□ Allocating loss - how much harm have you suffered?
○ Regulating social interaction
▪ Determines what is appropriate social interaction in certain circumstances
○ Normative in character
▪ Consists of a body of rules which dictate how we should respond when we are harmed
▪ Underlying the law of delict, is the principles of fairness and morality
□ Foundation of the law of delict: personal responsibility must be taken for our conduct or the consequences of our conduct
○ Fault-based liability v strict liability
▪ Difference
□ Fault based liability looks at the conduct of the defendant
□ Strict based liability looks at the consequences of the conduct of the defendant
▪ Cane: Tort law is a complex mixture of principles of personal responsibility for conduct (whether intention, reckless etc.)
▪ Fault-based
□ Holding the defendant liable for their conduct if they were at fault
Negligence
Intention
□ Can only hold the defendant legally liable if they were found to be negligent or intentional with their conduct
LAW OF DELICTS Page 1
, □ Justification
There should be corrective justice. The defendant must make right what he did wrong
The defendant should accept personal responsibility for their conduct
▪ Strict liability
□ Able to hold a defendant legally liable for their conduct or the consequences of their conduct without fault being a prerequisite (negligence
intent)
□ Society says that sometimes we are more concerned by the outcome and need to send a different message, therefore holding someone liab
even if they are not at fault
□ 3 types
Vicarious liability
◊ There are 3 parties
Plaintiff, wrongdoer, defendant
– The plaintiff sues the defendant, not the wrongdoer
– A special relationship between the wrongdoer and the defendant which allows the plaintiff to sue the defendant inste
of the wrongdoer
◊ Conduct isn't looked at here, as the wrongdoer is not being sued - the outcome of the conduct
◊ Justification
Control
– Employer is deemed to have control over his employees, at least in their course of employment
Risk
– Risk is created by employing the employee
Benefit
– The conduct of the employee is for the employer's benefit
Deep pockets theory
– Employer has more money than the employee
◊ K v Minister of Safety and Security
Holding the minister responsible for the outcome of the conduct
Vicarious liability is generally appropriate where there is a significant connection between the creation or the enhancement
a risk and the wrong that accrues therefrom, even if unrelated to the employer's desires
4 factors
– Minister is deemed to have control over his employees
– Minister is held liable because he inadvertently created the risk - employing them
– Their conduct is for your benefit
– Police officers don’t earn a lot. If they lose their jobs, can't get much out of them. Hold the party with the most money
responsible. Not just aggrieved by the conduct, but by the outcome of their conduct. Also, police officers - institution
protected by the Constitution. Therefore a broader impact on society as a whole. Therefore, holding the Minister liab
as well
Liability for loss caused by animals - actio de pauperie and actio de past
◊ Sue the owner of the animal
Basis: the relationship between the owner and the animal
Product liability
◊ CPA - can hold the manufacturer or distributor responsible
◊ Justification
Efficiency argument: better economic outcome
– CPA - makes things more efficient if you do not have to prove fault
Reduces litigation
– Serves as a check and balance because you check everything beforehand, therefore encountering less legal battles
Enhances product safety
• Delict meaning
○ Derived from two words:
▪ Delinquere - means to transgress
▪ Tortus - latin, meaning twisted
▪ Tortum - latin, meaning to wrong
○ Hence, someone has wronged someone else and gives rise to compensation
Tort law is present in jurisdictions with an Anglo-American influence
LAW OF DELICTS Page 2
, ○ Tort law is present in jurisdictions with an Anglo-American influence
○ Difference between tort and delict
▪ Torts - a case by case approach
□ A specific set of rules that applies to each and every delict
▪ Delict - a generalising approach
□ SA law has general principles to apply to most delicts
○ Different definitions
▪ Van Der Merwe and Olivier
□ A wrongful and culpable act
□ 3 elements
Wrongfulness
Conduct
Fault
▪ Boberg
□ Infringement of another's interest
□ Element
Delict consists of harm
▪ Neethling, Potgeiter and Visser
□ Fault, legally recognised interest
□ Elements
Fault and harm
▪ Van Der Walt and Midgley
□ Civil wrong
□ Element
Wrongfulness
▪ Therefore, a delict is conduct which is wrongful and culpable and causes harm to another
□ Standard definition, there is conduct, fault, wrongfulness, harm, causation
Exception: strict liability
○ Examples of delicts
▪ Assault
□ A physical component
□ For eg. someone punches you - humiliation
▪ Defamation
▪ Motor vehicle accidents
▪ Pure economic loss
□ Delict where there is monthly loss, but no damage to your person
▪ Copyright infringement
□ Theft of intellectual property but no damage to your person
• Functions of the law of delict
○ Compensation
▪ To fix what was broken or damaged
▪ To make us feel better
▪ Satisfaction
○ Fose v Minister of Safety and Security 1997 CC
▪ Whether or not the purpose of the law of delict is to punish the defendant
▪ The court said no
□ The primary purpose is not penal
□ It is compensation
○ To protect certain interests
▪ Can vindicate an interest that has been harmed or infringed
▪ Or can prevent the future harming of interest
○ To promote social order and cohesion
▪ To provide rules for the appropriate code of conduct for society, or the rules without an eye for an eye approach
LAW OF DELICTS Page 3
, ▪ To provide rules for the appropriate code of conduct for society, or the rules without an eye for an eye approach
○ Educate and reinforce values
▪ Tells us what is acceptable behavior and what isn't
▪ It is flexible
□ For eg. certain interests weren't protected by the Constitution, but now it is
▪ Reinforces the values that we need to promote
○ Provides socially acceptable compromises between conflicting moral views
▪ For eg. ukuthwala
▪ Tries to find a compromise
○ Deterrence
▪ Supposed to scare people from deviant behavior
○ Reallocate and spread loss
▪ K v Minister of Safety and Security
• Interaction with other areas of law
○ Delict and insurance
▪ Insurance pays out when you suffer a loss
▪ Indemnifying yourself against that loss
▪ Relationship between you and the insurer
□ For eg. motor vehicle accidents
Can sue the RAF instead of the wrongdoer
Therefore two claims
◊ One against the insurer, and one against the wrongdoer
▪ Subrogation
□ Allows the insurer to pursue a claim on your behalf
□ Instead of you suing the wrongdoer, the insurer does
□ Plaintiff has someone acting in his place, but the claim is still the plaintiff's
□ Ackerman v Loubser 1918 OPD 21
The P was insured and was fully paid out by the insurer
Insurer sought to recover loss from the D on behalf of the P
Sued the D in the name of the P
The insurer did not sue in own name
Court stated that the insurer has the right to sue on behalf of the P based on the principle of subrogation
□ Commercial Union Insurance Company of SA Ltd v Lotter 1999
The insurer may claim back damages from the defendant
□ Purpose
To prevent double compensation because if the insurer paid the P out, and the P decides to sue the D, then you will get doubl e the
money - allows the D to pay the insurer what they have paid you (can't get paid twice for the same thing. Claim from insurer for dama g
of vehicle, and then claim for bodily injury for D, then it's fine)
Provides a right of recourse - otherwise the insurer would be at a loss. Gives the insurer standing to recover damages that it suffered
from paying out your claim
□ Requirements
Valid insurance contract
◊ Between you and the insurer
◊ This gives the insurer a right of recourse
◊ No valid contract and you ask someone to sue in your behalf = ceding your right to sue, not the same as subrogation
Indemnification - fully compensated
◊ In terms of the agreement between you and the insurer
◊ Paid less = you still have a claim against the wrongdoer for the balance
◊ Insurer limited to the claim that they paid out
□ Distinction from cession
Cession
◊ 1998 SA Merc law journal
JP Van Niekerk
◊ An act of transfer of personal rights
LAW OF DELICTS Page 4
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