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Summary PVL3703 Exam notes and summaries
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- University Of South Africa (Unisa)
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LAW OF DELICT (PVL3703)GENERAL PRINCIPLES OF THE LAW OF DELICT
SU2: INTRODUCTION TO THE LAW OF DELICT
Role of the law of delict:
To indicate which interests are recognised by the law, under which circumstances 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 in law = damage (harm) rests where it falls = each person must bear the damage he suffers
However, damage does not always rest where it falls – in certain legally recognised instances in which
burden of damage is shifted from one individual to another, with the result that the latter incurs an
obligation to bear the former’s damage / to provide compensation for it
Law of delict thus determines the circumstances in which a person is obliged to bear the damage he has caused
another
Law of delict belongs to the law of obligations –
Because the wrongdoer has an obligation to make compensation for the damage suffered, the person prejudiced
has a corresponding right to claim compensation. As a result, an obligation between the 2 parties is created
Delict = the act of a person that in a wrongful & culpable way causes harm to another
Elements of a delict:
Act / conduct On the part of the person (wrongdoer / defendant) against whom prejudiced party
(plaintiff) wishes to litigate
Wrongful Wrongdoer must have acted in a legally reprehensible, unlawful / unreasonable way:
In conflict with community’s conception of what is right (boni mores)
Fault On the part of the wrongdoer = legally blameworthy for having acted wrongfully = 2 forms
of fault =
1. Intentionally = willed the damage in the knowledge that she was acting wrongfully
2. Negligence = did not conform to the std of care required by the law
Causal connection Btw the act of the defendant & damage suffered by plaintiff – act caused the damage / loss
= 2 forms:
1. Factual
2. Legal
Damage Plaintiff must’ve suffered some damage -2 forms:
1. Patrimonial loss (damnum iniuria datum) [reduction of financial power]
2. Injury to personality (iniuria) [infringement of an aspect of personality – i.e. good
name]
Generally all 5 elements must be present before defendant may be delictually liable
Plaintiff must prove all 5 elements if he wishes to obtain judgment in his favour in a case dealing with an
alleged delict
If defendant can show that one/more of the 5 elements are not present – he cannot be held delictually
liable
Exceptions to above =
Liability without fault / strict liability – wrongdoer can be delictually liable for wrongful causation of
damage even if he had no fault
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Interdict can be issued by court in absence of proof of elements of fault, causation / damage
,Remedies available to person prejudiced / threatened by delict (or wrongful deed) of another:
Person already suffered harm = may institute action to be compensated for the damage – 3 most NB:
2 pillars of the law of delict Third pillar
Actio legis Aquiliae Actio iniuriarum Action for pain and suffering
Form of damage Patrimonial loss Personality infringements Certain types of personality
infringements in the form of bodily
injuries
Form of fault Intention / negligence Intention Intention / negligence
It is inevitable that forms of damnum iniuria datum and iniuria which occur frequently in practice become known
as separate delicts under specific names =
Patrimonial loss caused by another person’s death (the dependant’s action) or injury, negligent
misrepresentation & emotional shock have emerged in practice as forms of damnum iniuria datum
Assault, defamation, insult, invasion of privacy, wrongful deprivation of liberty & adultery have
crystallised into specific forms of iniuria
Such forms develop their own specific rules within the framework of the general principles of delict
It is useful & necessary to treat the diff forms separately
Nevertheless – it must be born in mind that each is merely a specific form of the broad concept of delict
There is definitely not a series of separate delicts – at most, the specific forms of delict may be seen as being
species of the genus “delict”
Note: Interdict is applied for an order to prevent harm – to apply successfully – applicant must prove 2 delictual
elements:
An act has already been committed / will be committed; and
It is (or will be) wrongful
DELICT & BREACH OF CONTRACT
Similarity =
Breach of contract (BOC) is normally an act by one person (contracting party) which in a wrongful & culpable way
causes damage to another (contracting party)
Differences:
BOC Delict
Only constituted by the non-fulfilment by a contractual Constituted by the infringement of any legally
party of a contractual personal right (claim) / an obligation recognised interest of another party, excluding
to perform the non-fulfilment of a duty to perform by a
contractual party
Primary remedy = directed at enforcement, fulfilment / Remedies are primarily directed at damages (or
execution of the contract – a claim for damages as a satisfaction) and not at fulfilment
remedy only plays a secondary part
BOC 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 therefore provides specific rules and remedies for BOC that are not applicable to a delict – this
distinction is clearly apparent from the fact that one & the same act may render the wrongful doer liable ex
contractu as well as ex delicto
At most, it can be said that both are species of the genus “wrongful conduct” in private law
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,DELICT & CRIME
Differences:
Principle difference = private vs public law:
Private law: directed at protection of individual (private) interests
Public law: directed at upholding the public interest
Delict Crime
Remedies are compensatory in character, Sanctions are of a penal nature & are intended to punish
compensating / indemnifying the aggrieved party the criminal for his transgression against the public
for the harm the wrongdoer caused interest
One & the same act can be found delictual, as well as criminal, liability – however, a delict is not necessarily a
crime and vice versa
THE LAW OF DELICT, CONSTITUTION & FUNDAMENTAL (HUMAN) RIGHTS
Direct application
State must respect the fundamental rights (and may therefore not infringe them) except insofar as such
infringement is reasonable & justifiable according to the limitation clause
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 & justifiable to develop the CL to limit the right in accordance with the
limitation clause
The FR’s relevant to the law of delict must find application in this manner – these rights include:
Right to property / life / freedom & security of the person / privacy / human dignity / equality / freedom of
expression / freedom of religion, belief & opinion
When 2 / more of these FR’s are in conflict there will have to be careful & correct balancing / weighing-up of the
opposing rights
Entrenchment of FR’s in the BOR enhances their protection & gives them a higher status in that all law, state
actions, court decisions & conduct of natural / juristic persons may be tested against them, taking into account
that any limitation of a FR must be in accordance with the limitation clause of the Constitution.
It’s submitted that in exercising this value judgment (as well as in the process of weighing-up opposing FR’s), the
general principles which have already cyrstallised in our law re reasonableness / boni mores (legal convictions of
the community) criterion for declitual wrongfulness may serve as prima facie indications of the reasonableness of
a limitation ito the BOR
In the case of an infringement of / threat to a FR, a prejudiced / threatened person is entitled to approach a
competent court for appropriate relief = in this respect, mention should be made of the possibility of the
development of a “constitutional delict” = infringement of a FR per se constitutes a “delict” – a clear distinction
should be made btw such a constitutional wrong and a delict, even though these 2 figures may overlap –
The requirements for a delict & those for a constitutional wrong differ materially = not every delict is
necessary a constitutional wrong, and vice versa
Unlike a delictual remedy which is aimed at compensation, a constitutional remedy (even in the form of damages)
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is directed at affirming, enforcing, protecting and vindicating FR’s & at preventing / deterring future violations of
Chapter 2
, A constitutional wrong & a delict (or their remedies) whould therefore not be treated alike & for conceptual
clarity, “constitutional delict” should be avoided
Indirect application:
All private law rules, principles / norms are subjected to and must therefore be given content in the light of the
basic values of Chapter 2
This prompting of the spirit, purport & objects of the BOR will in all probability deliver the same results as the
direct application & applies in particular to the open-ended / flexible delictual principles – i.e. boni mores test for
wrongfulness / imputability test for legal causation / the reasonable person test for negligence / where policy
considerations & factors such as reasonableness, fairness & justice may play an NB part
The basic values underlying Chapter 2 could be implemented with good results as NB policy considerations in
determining wrongfulness, legal causation & negligence
SU3: THE ACT
Conduct is a general prerequisite for delictual liability
Damage must be caused by something – in the case of delictual liability it is caused by conduct
NATURE & CHARACTERISTICS OF CONDUCT
Definition of conduct = a voluntary human act or omission
Characteristics:
(a) Only an act of a human being
Where a human uses an animal as an instrument in the commission of a delict, a human act is still present
Juristic person (i.e. company) may act through its organs (humans) & be held delictually liable – rule used
to determine whether human conduct may be attributed to a juristic person for delictual liability: an act
performed by / at the order of / with the permission of a director / official / servant of a juristic person in
the exercise of his duties / functions in advancing / attempting to advance the interests of the juristic
person, is deemed to have been performed by the juristic person
(b) Human action only constitutes conduct if it’s performed voluntarily
i.e. if it’s susceptible to control by the will of the person involved
Voluntariness implies that the person in question has sufficient mental ability to control his muscular
movements
Voluntariness does not mean that a person must have willed / desired his conduct (see example on pg 26
of TB)
The requirement of voluntariness does not mean that a person’s conduct should be rational / explicable –
conduct by an infans / someone suffering from a mental disease is usually voluntary although the doer
may escape delictual liability, either because he lacks accountability / because fault is absent
(c) Conduct may be in the form of:
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a. A positive act (active conduct (commission); or
b. Omission (omisio)
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