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Summary PVL3703 - COURSE SUMMARIES 2023
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This is an extensive summary of the Law of Delict South Africa and will be a successful tool in passing this module.
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UNISA 2023PVL3703 – LAW OF DELICT SUMMARIES
Private law: regulates relationships between individuals in a
community.
Role of delict: indicate which interests are recognized by law, under what circumstances they are
protected against infringement and how a disturbance in the balance is restored.
Definition of delict: a delict is an act of a person, which in a wrongful and culpable way causes harm
to another.
5 requirements:
1. Act
2. Wrongfulness
3. Fault
4. Causation (factual and legal)
5. Damage (damnum iniuria datum)
All must be present before conduct can become a delict.
Difference between delict and a crime:
Delict:
1. Protects private interests (private law)
2. The aggrieved party institutes the action
3. Objective: claim damages as compensation
4. Can’t have attempted delict
Crime:
1. Protects public interest (public law)
2. The state prosecutes
3. Objective: punish the criminal
4. Can have attempted crime
Both are wrongful culpable acts causing damage
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Delict and breach of contract:
Delict:
1. Excludes non-fulfillment of a duty to perform (real right)
2. Primary remedy = damages
Breach of contract:
1. Breach = non-fulfillment of a contractual obligation to perform (personal right)
2. Primary remedy: performance of the contract
Delict, the Constitution and fundamental rights:
The Constitution is supreme and conduct inconsistent with it is invalid. Fundamental rights can be
limited by the law of general application, but only to the extent that the limitation is reasonable and
justifiable in an open and democratic society based on human dignity equality and freedom (Section
36). Courts must promote the values that underlie this society. International law must be taken into
account. Direct application: the fundamental rights relevant to or connected with the law of delict
include = right to property, life, freedom, privacy, dignity, equality, freedom of expression, freedom of
religion belief and opinion, the right to assembly, demonstration, picket, petition, freedom of
association, freedom of trade, occupation and profession. The state must protect fundamental rights
and not infringe them except unless the requirements for Section 36 have been complied with. In case
of an infringement that is not justified, anyone who is entitled to relief can approach a competent
court. Indirect application: all private law rules, principles and those regulating the law of delict are
subject to chapter 2 and applies in particular to the so-called “open-ended or flexible” delictual
principles. For example, the boni mores test for wrongfulness where policy considerations and factors
such as reasonableness, fairness and justice may play an important part.
THE ACT (CONDUCT)
Consists of a voluntary human commission or omission:
Elements:
1. Human act: where an animal is used as an instrument a human act is still present. A juristic person
can act through its agents (company) and be held delictually liable for its actions.
Gijzen: held – delictual liability can occur without there being an act on the part of the defendant, in
the case of land subsistence cases. Such an act must be wrongful: an act and its consequences may be
separated from each other in time and space, but there always has to be an act.
2. Voluntary conduct: the act must have been performed voluntarily – the wrongdoer must have had
control over his muscular movements (i.e. If it is susceptible to control b the will of the person
involved). One’s voluntary conduct does not have to be willed or desired, as can be seen in the case
of S v Russell: X forgot to warn others that an electric current had been switched on. Someone was
electrocuted. Russell stated that he wasn’t guilty because he hadn’t willed or desired the outcome.
Court held: that the test was whether he was able to utter a warning = GUILTY.
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3. Commission and Omission: conduct can be in the form of a commission or omission. Liability for an
omission is in general more restricted than liability for a positive act (commission). The law is hesitant
to find that there was a legal duty on someone to act positively and so to prevent damage to another.
The Defence of Automatism:
The voluntary conduct on the part of the defendant is a requirement for delictual liability. The
defendant could argue that the conduct complained of doesn’t satisfy the requirement of
voluntariness. This is where someone acted mechanically = sleep, unconscious, fainting fit, absolute
compulsion (X grabs Y’s hand and stabs P using Y’s hand), epileptic fit, serious intoxication, black out.
If these are present a person is incapable of controlling his bodily movement = purely mechanical
action and that person raises the defence of automatism.
Molefe: the defendant doesn’t bear the onus to prove that he was in a state of automatism, its for the
plaintiff to prove that the defendant acted voluntarily.
Dhlamini: X was sleeping on the floor in a room with others when he had a nightmare; he then stabbed
and killed Y with a knife while under the influence of his dream. He was not convicted of any crime.
Mkize: X stabbed and killed Y with a knife while X was having an epileptic fit, he was acquitted of
murder.
Du Plessis: X was charged with negligent driving as he injured a pedestrian. He was 72 years old and
experienced a black-out due to low blood pressure. He was found not guilty.
In respect of sane automatism (where it’s not a consequence of mental illness) the onus is on the
plaintiff to prove that the defendant has acted voluntarily and therefore not mechanically.
Automatism doesn’t mean that there’s no voluntary act whatsoever by the defendant which caused
the damage, but only that the conduct in question wasn’t voluntary.
Antecedent liability:
The defence of automatism will not succeed if the defendant intentionally created the situation in
which he acts involuntarily in order to harm another (actio libera in causa). The defendant may not
successfully rely on the defence of automatism where he was negligent with regard to his automatic
conduct. This is where the reasonable man would have foreseen the possibility of causing harm while
in a state of automatism.
E.g. drinking while knowing or reasonably foreseeing that you will later drive a car – knowing you may
suffer an epileptic fit but still driving.
Victor: X was convicted of negligent driving despite the fact he caused the accident. During an epileptic
fit, Victor collided with a pedestrian and another car as the evidence revealed. He’d been suffering
from epileptic fits for the last 13 years and had insufficient reason to believe he would not have a fit
on that day.
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WRONGFULNESS
For liability to follow an act, prejudice must be caused in a wrongful or unreasonable manner. Without
wrongfulness defendant cannot be held liable. Determination of wrongfulness is essentially a dual
investigation, looking at:
1. Was there an infringement of a legally protected interest – the act must have a harmful
consequence.
2. If the interest has been prejudiced, legal norms are used to determine if it occurred in a legally
reprehensible manner (unreasonable manner) – boni mores test.
Act and consequence:
An act is only delictually wrongful when it has as its consequence the factual infringement of an
individual interest. An act on its own without a harmful consequence can never be held delictually
wrongful – e.g. X races down main street at 160 km in peak hour traffic, his act isn’t considered
wrongful in delict as there has been no infringement of an interest. An act and its consequence are
always separated by time and space.
Pinchin v Santam Insurance Co Ltd:
A pregnant woman was involved in a car accident caused by the defendant’s negligence. When the
child was born it was found to suffer from serious brain damage. Compensation was claimed from the
defendant on the child’s behalf. But at the time of the defendants act the child was in ventre matris
and as a result the child had no legal personality and therefore no legally protected interest that could
be infringed.
The judge – was of the opinion that the child did have an action but it failed because there was no
evidence that the accident caused the brain injuries. The judge based his view on the nasciturus fiction
– an unborn child is regarded as having been born whenever it’s in the child’s interests.
Joubert argues: it’s unnecessary to rely on the nasciturus fiction to find that the child would have an
action – because the act and its consequences are separate both in time and space – the child need
not have legal capacity at the time of the act. The defendant’s conduct resulted in a harmful
consequence much later.
In RAF V Mtati it was held that the nasciturus fiction does not always offer a solution in all
circumstances.
BONI MORES TEST: BASIC TEST FOR WRONGFULNESS
Boni mores test: The legal convictions of the community (boni mores test) as the basic test for
wrongfulness: The general norm to see if an infringement of interests is unlawful, is the legal
convictions of the community = boni mores. This is an objective test. (Steenkamp NO)
Basic question: whether according to the legal convictions of the community and in light of all the
circumstances of the case the defendant infringed the interests of the plaintiff in a reasonable or
unreasonable manner.
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