Textbook summary
Law of Delict 8th ed
Neethling & Potgieter
, 2
Part 1: Intro to the law of delict
Chapter 1
General Introduction
The law of delict belongs to the part of private law known as the law of obligations.
Role of the law of delict to indicate which interests are recognised by the law, under which
circumstances they are protected against infringement and how such a disturbance in the
harmonious balance of interests may be restored.
Fundamental premise in law is that damage (harm) rests where it falls, each person must bear
the damage he suffers (res perit domino).
The wrongdoer has an obligation to compensate for the damage suffered, the person
prejudiced has a corresponding right to claim compensation. Thus, an obligation between the
two parties is created.
A delict is the act of a person that in a wrongful and culpable way causes harm to another. All
five requirements/elements must be present before the conduct complained of may be
classified as a delict.
Five requirements of a delict:
1. An act.
2. Wrongfulness.
3. Fault.
4. Causation.
5. Harm.
If even one of these elements are missing, no delict and no liability.
Generalising approach: General principles/ requirements regulate delictual liability. These
principles apply irrespective of which individual interest is impaired, and irrespective of the way
in which the impairment is caused.
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.
SA applies the generalising approach.
Distinction is made between delicts that cause patrimonial damage and those that cause injury
to personality. This distinction grounds the actions which form three of the pillars of the law of
delict.
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Three pillars
1. The actio legis Aquiliae – damages for the wrongful and culpable (intentional or negligent)
causing of patrimonial damage are claimed.
2. The actio iniuriarum – which is directed at satisfaction for the wrongful and intentional injury to
personality.
3. Action for pain and suffering – compensation for injury to personality as a result of the wrongful
and negligent (or intentional) impairment of bodily or physical-mental integrity is claimed.
Important to note that a delict is not the only form of unwarranted conduct of which the law
takes cognisance. Difference between a delict and a breach of contract and crime.
Delict and breach of contract
Breach of contract – an act by one person (contracting party) which in a wrongful and culpable
way causes damages to another (contracting party).
Breach of contract is only constituted by the non-fulfilment by a contractual party of a
contractual personal right (claim) or an obligation to perform. Seen as part of law of contract,
not law of delict.
Primary remedy for breach of contract – directed at enforcement, fulfilment, or execution of a
contract.
Secondary remedy for breach of contract – claim for damages.
A delict is constituted by infringement any legally recognised interest of another party,
excluding the non-fulfilment of a duty to perform by a contractual party.
The delictual remedies are primarily directed at damages, and not at fulfilment.
Delict and the Constitution
Direct vertical application – the state must respect the fundamental rights (not infringe them)
except where such infringement is reasonable and justifiable according to the limitation clause.
Direct horizontal application – the courts must give effect to an applicable fundamental right
by applying, developing the common law to give affect to that right, except where law develops
a limitation on a right.
Indirect operation of the BoR – all private law rules, principles or norms are subject to the
values of Ch 2.
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Part 2: General principles of the law of delict
Chapter 2
Conduct
To constitute a delict, one person must have caused damage or harm to another person
(person suffering the loss) by means of an act or conduct.
Conduct constitutes the damage-causing event in the case of a delict.
Conduct - a voluntary human act or omission.
Conduct displays the following characteristics:
a) Only an act of a human being is accepted as conduct. Where human uses an animal
as an instrument to commit a delict, a human act is still present.
b) Human action only constitutes conduct if it is performed voluntarily. Where a defendant
claims that he did not act voluntarily, he is raising the defence of automatism.
c) Conduct may be in the form of either a positive act or an omission.
Automatism – acted mechanically. (e.g., Reflex, sleep)
Sane automatism – where the automatism is not a consequence of mental illness.
The defence of automatism will not succeed if the defendant intentionally created the situation
in which he acts involuntarily in order to harm another. This is actio libera in causa.
With sane automatism, the onus is on the plaintiff to prove that the defendant has acted
voluntarily, thus not mechanically. If a defendant raises automatism resulting from mental
illness as a defence, such a defendant will probably bear the onus to prove the absence of
conduct.
Liability for an omission is in general more restricted than liability for a positive act (a
commission).
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