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Study Unit 1 - Scope of study: introductory remarksDesignation of the field of study
The area of the law we are studying in this module is given various names, the
most common of which are ‘‘delict’’ and ‘‘the law of delict’’. In South African
law, delict and the law of delict are translated in Afrikaans as delik and
deliktereg or die reg aaflgaaflde die Dflregmatige daad respectively.
In German law, a delict is called uflerlaubte Hafldluflg (wrongful deed), while de
´lit (delict, from the Latin delictum) is used in French law. In English and
American law, the term for delict is ‘‘tort’’, and the law of delict is the law of
tort (or the law of torts).
The concepts ‘‘delict’’ and ‘‘law of delict’’: general meaning
In general, a delict (wrongful conduct, delik or tort) is the act of a person which
in a wrongful (ie legally reprehensible) and culpable (ie legally blameworthy)
way causes loss (damage) to another (cf study unit 2 below). The law of delict
determines under which circumstances a person can be held liable for the
damage or loss he/she has caused another.
Basic premise: the person prejudiced must bear the damage
himself/herself
Obviously, not all cases where damage has been caused give rise to delictual
liability. In fact, as a point of departure, the law expects me to personally bear
the damage I suffer: if I drive my car carelessly and smash the headlamp
against the garage door, or if I clumsily drop and break my watch, or if lightning
strikes my horse dead, I cannot, in principle, hold anybody else responsible for
this (except where, for example, I am insured against the resulting damage, in
which case the insurer must take up the burden of damage in terms of the
contract of insurance).
However, a wrongdoer is responsible for damage that he has caused
another
The consequence of damage caused by way of a delict is that the prejudiced
person does not have to bear the loss. The wrongdoer (the person who caused
the damage) is held liable by the law to compensate the prejudiced person for
the damage. In this module we will study the legal rules that determine under
which circumstances a person can legally be held liable for the damage or loss
he/she has caused to someone else.
As a point of departure we will study the general requirements for
delictual liability
The forms that a delict can assume are legion: interference with another’s
property, body, freedom, good name, honour, privacy, feelings, earning
capacity and trade secrets are all examples of various ways in which a delict
can occur. In a module on the law of delict, it would be possible to study each
type of delict (or group of related delicts) separately – an approach largely
adopted by the English and American law of torts. However, Unisa (like most
South African universities) follows a different approach – we accept that all
delicts must fulfil specific general requirements, and that a study of these
,general requirements should be the basis for the study of the law of delict.
(These general requirements for [or elements of] a delict are – as is apparent
from the above-mentioned definition of a delict – the act, wrongfulness, fault,
causation and damage.)
A thorough knowledge of the general requirements for a delict will enable you
to deal with specific delicts. Consequently, this module on delict consists
primarily of a study of the general requirements for delictual liability (study
units 2 to 27), while the rest of the module is devoted to the study of specific
forms of delict (study units 28 to 30) and cases of delictual liability without
fault.
Study Unit 2 – General Introduction
1 Delict: general nature and place in the legal system
A delict is defined as the act of a person which, in a wrongful and culpable way,
causes harm to another. All the elements of a delict that must be present to
hold someone liable for delict: the act, wrongfulness, fault, causation and harm.
First, there must have been some act or conduct on the part of the person (the
wrongdoer or defendant) against whom the prejudiced party (the plaintiff)
wishes to litigate. It is logically inconceivable that somebody can be delictually
injured unless there has been some act, conduct or deed by another. Hence the
term ‘‘wrongful act’’ (Dflregmatige daad).
Secondly – and this may be regarded as the essence of a delict – the act must
have been wrongful. This means that the wrongdoer must have acted in a
legally reprehensible, unlawful or unreasonable way. An act will be wrongful if
the wrongdoer has acted in conflict with the community’s conception of what is
right (the bDfli mDres). An act is in conflict with the community’s norms when,
among other things, the subjective right of the prejudiced party has been
violated, or a legal duty to prevent the injury has been breached.
Thirdly, there must have been fault on the part of the wrongdoer. This means
that he/she must be legally blameworthy for having acted wrongfully. The law
blames the person if he/ she willed the damage in the knowledge that he/she
was acting wrongfully (ie if he acted intentionally), or if he did not conform to
the standard of care required by the law and thus caused the damage through
his/her negligence. Thus our law knows two forms of fault: intention and
negligence.
Fourthly, there must have been a causal connection between the act of the defendant and damage
suffered by the plaintiff. This means that the act must have caused the damage or loss. After all, a
person who is prejudiced cannot challenge the action of another if the latter’s conduct had nothing
to do with the prejudice suffered. If I kill a bird with a stone, X cannot complain to me that at the
very same moment he slipped on his verandah and broke his arm – unless my throwing the stone
,at the bird gave him a fright, in which case my conduct would have been the cause of his fall. Two
forms of causation are distinguished: factual and legal
Fifthly, the plaintiff must have suffered damage. Damage can take on one of
two forms: patrimonial loss (damflum ifliuria datum), that is a reduction of
financial power, or injury to personality (iniuria), that is an infringement of an
aspect of personality such as a good name.
As a general rule, all five elements must be present before a defendant may be
delictually liable. In principle, a plaintiff must therefore prove all five elements if
he/she wishes to obtain judgment in his/her favour in a case dealing with an
alleged delict. (Sometimes only some of the delictual elements are disputed by
the defendant; in such a case the plaintiff obviously need not prove all the
elements, since the defendant, in effect, admits that some of them are
present.) If the defendant can show that one or more of the five delictual
elements are not present, he/she cannot be held delictually liable.
The purpose of the law, and in particular private law, is to regulate relations
between individuals in a community. A legal order would be unnecessary if
people lived in complete harmony. The reality is, however, that individual
interests are continually in a state of real or threatened conflict. Accordingly, it
is the function of private law to recognise these interests, delimit them in
relation to each other and harmonise those that are in conflict. In particular, it
is the 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.
The fundamental premise in law is that damage (harm) rests where it falls, that
is, each person must bear the damage he suffers (res perit domino). If someone
drives his car carelessly and collides with a tree, or clumsily drops and breaks
his watch, or hail damages his corn crop, or lightning kills his horse, he has, in
principle, no legal ground for complaint. However, damage does not always rest
where it falls. There are indeed certain legally recognised instances in which
the 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 or to provide
compensation for it. For example, where damage arises from a delict, the
wrongdoer is legally obliged to compensate the aggrieved party. In general
terms, the law of delict thus determines the circumstances in which a person is
obliged to bear the damage he has caused another, ie when he may incur civil
liability for such damage.
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 obligatio or obligation between the two parties is
, created. Thus the law of delict belongs to that part of private law known as the
law of obligations.
The mere fact that a person has caused another to suffer damage is, of course,
insufficient to constitute a delict for which he may be held liable. To found
liability, further requirements must be met. These requirements, otherwise
referred to as the different elements which constitute a delict, appear from the
following 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, wrongful- ness, 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.
From the above, it follows that the question of delictual liability is governed by
a generalising approach. This means that general principles or requirements
regulate delictual liability. These principles as a rule apply irrespective of which
individual interest (for example, a thing, the human body, honour, privacy,
earning capacity, a trade secret, a trademark or the goodwill of a corporation)
is impaired, and irrespective of the way in which the impairment is caused. The
casuistic approach of the English and Roman law of delict contrasts with the
generalising approach. According to the casuistic 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.
It is self-evident that a legal system embracing general principles of delictual
liability is able to accommodate changing circumstances and new situations
more easily than one that adopts a casuistic approach, since the latter
approach requires the constant creation of new delicts (usually a slow
legislative process), while general principles, because of their flexibility and
pliancy, need only be adapted or applied in a new way (normally a speedy
judicial process). The South African law of delict, unlike the English law of torts,
has therefore been able to recognise and protect individual interests (such as
privacy and the goodwill of a corporation) which have only come to the fore in
modern times.
The generalising approach is, however, subject to an important qualification in
our law. A distinction is made in principle between delicts that cause
patrimonial damage (damnum iniuria datum) and those that cause injury to
personality (iniuria). These distinctions ground the actions 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, apart from a few exceptions,
comprehensively cover the whole area of delictual liability. The most important
remaining action – which may be regarded as the third pillar of the law of delict
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