(KP)(PVL3703) Law of delict FULL PACK REVISION LATEST PACK ASSIGNMENT FROM JULY/AUGUST FULL; PACK DETAILED PAST PAPERS 100% SOLUTION PASS-BUY QUALITY REVIEW PAGES NOW...
1. Define a delict
The act of a person which in a wrongful and culpable way causes loss/damage
2. List the 5 elements of a delict
- Act
- Wrongfulness
- Fault
- Causation
- Damage
3. Name the most important delictual remedies available, and briefly indicate what are the differences
between them
I. Actio legis Aquiliae: Claim damages for wrongful and culpable causing of patrimonial damage
II.
III. Actio iniuriarum: Claim satisfaction for wrongful and intentional injury to personality.
IV.
V. Action for pain and suffering: Claim compensation for wrongful and culpable impairment of bodily or
physical-mental integrity.
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ls s
4. Write brief notes on the differences/ similarities between a delict and a breach of contract
o.
ria al
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to ori
Seems the same, but a breach of contract is only constituted by the non-fulfilment by a contractual party of a
personal right or an obligation to perform.
rtu ut
Thus, the remedies are primarily directed at enforcement, fulfilment or execution of the contract.
.g T
Delictual remedies are directed at damages and not fulfilment.
w R
Law of contract provides specific rules/remedies for breach of contract that are not applicable to a delict.
G
Delict=breach of duty imposed by law.
Breach of contract is the breach of a duty voluntarily assumed.
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5. Write brief notes on the differences/ similarities between a delict and a crime
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Distinction between private and public law.
Protection of individual interests (delict) vs protection of public interest (Crime)
Delictual remedies are compensationary, while criminal sanctions are of a penal nature, to punish
criminal for transgression against public interest.
Each delict is not necessarily a crime and vice versa.
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6. Explain in 4 or 5 sentences how Chpt. 2 of the Constitution may influence the law of delict
The Constitution is the supreme law of RSA. Chapter2 (BOR) is applicable to all law, incl Delict.
Vertical & horizontal application of Const can take place directly or indirectly.
Fundamental rights in terms of the Law of Delict:
• Right to property
• Right to life
• Right to freedom and security of person
• Right to privacy
• Right to human dignity
• Right to equality
• Right to freedom of expression
• Right to freedom of religion, belief, opinion
• Right to assembly, demonstration, picket, petition
• Right to freedom of association
• Right to freedom of trade, occupation, profession
Not every delict is necessarily a constitutional wrong.
Constitutional remedies are aimed at affirming/enforcing/protecting/vindicating fundamental rights and
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deterring future violations of Ch2.
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o.
Write brief notes on the indirect application of the BOR to the law of delict (5)
ria al
.c
to ori
Indirect application is implemented/applicable eg to open-ended/flexible delictual principles, namely:
rtu ut
• Boni mores test for wrongfulness
.g T
• Imputability test for legal causation
• Reasonable person test for negligence
w R
• Policy consideration eg reasonableness, fairness and justice
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The act
7. Define an act
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w
Conduct is prerequisite for delictual liability.
Conduct is a voluntary human act or omission.
8. Enumerate the requirements of an act and apply them to practical factual examples
- Where a human uses an animal as an instrument to a commission a delict, a human act is still present.
- A juristic person acts through its organs: an act performed by or at the order if or with the permission of a
director, official or servant of a juristic person in the exercise of his duties or functions in advancing or attempting
to advance the interests if the juristic person, is deemed to have been performed by the juristic person.
- Voluntariness implies that the person is question has the mental ability sufficiently to control his
muscular movements.
- Voluntariness does not mean that a person must have willed or desired his conduct.
9. Explain the requirements of the defences of automatism and apply them to practical factual examples
- This defence suggests that the person acted mechanically.
- The following conditions may cause a person to act involuntary in hat they render him incapable of controlling his
bodily movements:
- absolute compulsion (vis absoluta- exerted by human agency or through forces of nature),
- sleep,
- unconsciousness,
- a fainting fit,
- a epileptic fit,
- serious intoxication,
- a blackout,
- reflex movements,
- strong emotional pressure,
- mental disease,
- hypnosis
- a heart attack and certain other conditions. Relative compulsion ( vis compulsive- no choice)
- The defence of automatism will not succeed if the defendant intentionally created the situation in which
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he acts involuntarily in order to harm others.
ls s
o.
- The defendant will not be able to successfully rely of the defence of automatism where he was negligent
ria al
with regard to his automatic conduct- where the reasonable man would have foreseen the possibility of him
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to ori
causing harm while in a state if automatism.
- Where the automatism is not a consequence of mental illness the onus is on the plaintiff to prove that the
rtu ut
defendant acted voluntarily and therefore not mechanically
.g T
- If a defendant raises automatism resulting fro mental illness, the defendant will probably bear the onus to
w R
prove the absence of such conduct
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- Automatism does not mean that there is no voluntary conduct whatsoever by the defendant which caused
the damage, but only that the conduct in question was not voluntary.
10. Briefly explain the difference between a commission and an omission
w
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- Liability for an omission is generally more restricted than liability for a commission.
- Commission is an act performed while an omission is a failure to perform a certain act.
- The law is hesitant to find that there was a legal duty on someone to act positively and so to prevent
damage to another.
- Omission is a failure to take any positive step whatsoever to prevent damage to other people.
Wrongfulness
11. Describe the 2 steps involved in an inquiry into wrongfulness
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