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DLR 320 Law of Delict Best Notes 2022
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- University Of South Africa (Unisa)
DLR 320 Law of Delict Best Notes 2022
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1DLR 320
Chapter 1- Introduction
Nature of DLR and its place in RSA law:
DLR = part of private law→ regulates relations btwn individuals in the
community
Thus the function of private law = to recognise interests, delimit them iro each
other AND harmonise them.
Role of DLR = indicate which interest are recognised, under which circumstances
they are protected AND how harmony = restored
Fundamental Premise → damage rests where it falls
The fundamental purpose in law is that each person must bear the damage he
suffers.
But there are instances where the burden of damage is shifted from 1 individual
to another = delict (the wrongdoer is legally obliged to compensate the aggrieved
party)
The wrongdoer has an obligation to compensate the damage suffered and the
aggrieved person has the RIGHT to claim compensation.
A delict is a legal fact and not a legal act because the law attaches consequences to
it independent of the will or aim of the wrongdoer.
BUT That isn’t always the case.
Thus DLR determines the circumstances in which a person is obliged to bear
damage that he causes to another→ he incurs liability
Thus DLR = part of law of obligation
For a person to be liable ALL requirements of a delict must be met. If 1 is NOT
met then there = NO delict, NO liability
Def: delict = the act of a person that is wrongful &culpable and causes harm
another.
5 Requirements → conduct (act/ omission)
→ wrongfulness (unlawfulness)
→ damage/ harm
→ fault (negligence/ intention)
→ causation (factual causation and legal causation)
Delictual liability can be regulated by 1 of 2 ways
→The general approach
→The casuistic approach
RSA uses the GENERAL approach → these are general principles that apply
irrespective of the type of individual interest infringed upon
, 2
AND
irrespective of the manner of impairment
Thus the general approach = more flexible than the casuistic approach which has
specific requirements for specific delicts that must be met
BUT general approach is subject to important qualifications in law
→ A distinction must be drawn btwn
→ delicts causing patrimonial damages
damnum iniuria datum of which the action is actio legis aquilae
→ delicts causing injury to personality
iniuria of which the action is actio iniuriarum
There are 3 pillars of DLR:
→patrimonial damages → actio legis aquilia
→ injury of personality → actio iniuriarum
→ pain and suffering →patrimonial compensation for injury to the personality
In RSA specific forms of delict = a.k.a. species of the genus delict
Delict = NOT breach of contract and NOT crime (not necessarily)
Generalising Approach Casuistic Approach
We mainly use generalizing Consists of a group/set of delicts
approach Each group has own rules
Principles need only be adapted in Therefore a delict if it satisfies the
a new way. requirements of any specific
Diff as in Perlman v Zoutendyk group
because all damage caused English Roman law
unjustifiably is actionable whether ‘law of torts’
intentional or negligent.
1. NB QUSTION: a legal system embracing general principles of delictual
liability is able to accommodate changing circumstances and new situations
more easily than one that adopts the casuistic approach, because the latter
approach requires the constant creation of new delicts while the general
principles, because of their flexibility and pliancy, need only be adapted or
applied in a new way.
2. A distinction is made between delicts that cause patrimonial damage and those
that cause injury to personality.
3. There is no series of separate delicts each with its own principles. At most the
specific forms of delict may be seen as being species of the genus delict.
4. Delct is not the only form of unwarranted or inadmissible conduct of which
the law takes cognisance = breach of contract and crime are 2 others.
Thus a delict is the act of a person that in a wrongful and culpable way causes
harm to another.
, 3
Delict and Breach of Contract
Breach of contract = apart of KTR.
eg. A and B contract
A fails to perform → he breaches the contract
Breach = wrongful and causes damage to
BUT the primary remedy for breach = enforcement of the contract.
Secondary remedy = compensation for damages (this = primary remedy for
delict)
BUT one act can constitute breach and delict simualtaneously.
Delict and Crime
Delict Crime
- private law - public law
- private interests looked after - public interest looked after
- compensatory remedy provided for - penal remedy given to the offender
BUT one act can be both crime and delict simultaneously.
ACTIONS:
Actio Legis Aquiliae Patrimonial Loss
Damages which can be measured in money
E.g. the person you depend upon is killed/injured or
emotional shock
Negligence/Intention
Actio Iniuriarum Injury to personality/good name/dignity/body
Non-Patirmonial loss
Need to prove INTENTION (not negligence)
E.g. assault, defamation, invasion of privacy, insult,
deprivation of liberty
Action for Pain and Bodily harm or physical mental integrity
Suffering Non-Patrimonial loss
Only need to prove negligence
Historical Development of Delictual Liability
1. actio legis Aquiliae
- Roman Law
The lex Aquilia had 3 chapters.
An aquilian action only available to owner of the damaged property
→wrongdoer compensated for damage caused AND patrimonial loss
→in Justinian’s time other real right holders could also use the action
, 4
- Roman-Dutch Law
→1. did away with the physical impairment requirement
2. action could be used for damages resulting from injury to
personality NOT just bodily injury
3. personal right holder could use the action
4. action available to dependants, parents, employers
BUT the action = not a general remedy (Fisher case)
- RSA Law
→Action used for culpable and wrongful acts causing patrimonial
damage.
Also used for pure economic loss
→BUT development of the action was hampered by the Ocean
Accident case
Action was used for ALL patrimonial loss caused wrongfully and
culpably
Also used for corporeal and incorporeal objects
→ Extension of the act must be justified by policy considerations
2. actio iniuriarum
- Roman Law
Protection of personality cam from the 12T’s
Personality=physical person
→Later fines were replaced by taxatio AND personality included good
name, dignity, feelings of chastity and privacy
Roman law approach was casuistic in nature.
→actio iniuriarum used for impairments to the corpus, fama, dignitas
AND wrongdoer must have acted with intention
- Roman-Dutch Law
Roman law remained unaltered in R-D law
BUT some writers identified libertas as a 4th personality interest
AND writers required intent for liability to be present.
- RSA Law
No change to iniuria in RSA
Iniuria = wrongful, intentional infringement of a pertson’s fama,
corpus or dignitas
→ dignitas = not only dignity
It must be interpreted widely → it encompasses all aspects of the
legally protected personality (excl. fama and corpus)
Dignitas = a collective term
3. action for pain and suffering
- Roman Dutch Law
Developed under R-D law with the influence of Germanic customary
law.
→only pain/suffering AND disfigurement
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