INTRODUCTION:
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
5. Damage
All must be present before conduct can become a delict.
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. Cant 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
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 (S36).
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
etc.
In case of an infringement anyone 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.
Downloaded by Thomas Mboya (tom.tommy356@gmail.com)
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