Law of Delict 301 summary of the textbook The Law of Delict in South Africa by Loubser & Midgley (eds.) third edition.
Summaries of the following topics: introduction to delict, harm, conduct, causation, fault, wrongfulness, defences (private defence, necessity, consent), delict in the business en...
Abstract
The South African law of delict engages primarily with 'the circumstances in which one
person can claim compensation from another for harm that has been suffered'
Suné-Mari Koekemoer
24510612@stadiodl.ac.za
,Latin Phrase Explanation
Boni Mores Good values
Iniuria Injury
Damnum iniuria datum Patrimonial loss
Actio legis aquiliae Action for recovery of patrimonial loss
Actio iniuriarum Action for harm of a personality right
Actio de pauperie Action for damages caused by
domesticated animals
Actio de pastu Action for damages against
plants/cropts/pastures
Conditio sine qua non Factual causation
Dolus Intention
Culpa Negligence
Corpus Bodily integrity
Dignitas Dignity
Fama Reputation
Animus iniurandi Fault in the form of intention
Contra naturam sui generis Unnatural conduct
Sponte feritate commota Vice
Vias maior Outside influence
Universitas Person’s current and future assets and
liabilities
Vis absoluta Absolute force / compulsion
Actio in libera causa State of automatism is deliberately
induced to cause harm to another
Conditio sine qua non But-for test
Novus actus interveniens New intervening cause
Volenti non vit iniuria Consent to harm justifies the harm
Contumelia Degrading/insulting effect of behaviour
Contra naturam sui generis Contrary to its nature
Sponte feritate commota From inward excitement or vice
Actio de effuses vel deiectis Occupier of building caused harm by
throwing/pouring object/substance out
building
,Actio de positis vel suspensis Used to impose criminal fine for
occupier when object falls from building
to street
In solidum Jointly liable
Qui facit per alium facit per se Employer is an actor where they act
through an employee
Locatio conductio operarum Contract of service
Location conductio operis Contract of services
, TOPIC ONE: INTRODUCTION
The law of delict provides a system for compensating those who have been
wrongfully harmed by the culpable conduct of others
It expresses society’s views on what is considered acceptable and
unacceptable behaviour
Society’s boni mores thus lie at
Boni mores
the heart of the delictual
principles
Boni mores embody legal and
public policy considerations as
well as constitutional rights
and norms
Not static: past expressions are
not necessarily expressions of
contemporary acceptable
behaviour
THE NATURE OF THE LAW OF DELICT
Under what circumstances can a person claim compensation from another for harm
that has been suffered?
LOSS ALLOCATION AND CORRECTIVE JUSTICE
Loss allocation = enquiry into whether a delict has occurred
Determines whether or not the burden should shift from the plaintiff to the
defendant
o ‘who should bear the relevant cost?’
o Did a delict not occur and the cost is thus on the claimant, or did a
delict indeed occur and the cost is on the defendant?
REGULATORY FRAMEWORK
, Law of delict sets standard of behaviour for human conduct = normative
purpose that prescribes a set of ethical rules for social interaction
MORALITY AND FAIRNESS
Law of delict gives substance to these concepts: a judge must at times decide
which conflicting moral principles should be given practical effect when
regulating behaviour in society
Responsibility
Conduct-
There can be no Strict liability
liability without fault Liability without fault
The conduct is wrong, The outcome is wrong
therefore the outcome whether or not the
is wrong conduct was wrong
Strict because it does
responsibility
not consider whether
or not the conduct was
Outcome-
faulty
Core principle: there can be no liability w/out fault -> conduct-responsibility
o Liability without fault also exists (strict liability) -> outcome-
responsibility
Expresses a morality where society determines whether the
nature of the conduct / the risk associated with the conduct is
such that a person must compensate anyone who suffers harm
as a result
THE PREMISE
A loss should lie where it falls = plaintiffs must suffer the infringement of their
interests and suffer associated losses
UNLESS they can show that there is a special reason for shifting the burden
of making good any loss to someone else
, This happens when the plaintiff can prove all the elements of a delict
DEFINITION OF A DELICT
Delict sets the rules for
determining whether
Delict deals w/
the person whose
situations where one
interests have been
person has wronged
infringed should have a
another
remedy against the
harm causer
Only infringements
recognised by thelaw Most instances require
as worthy of fault from the wrong
compensation will doer
result in liability
FUNCTIONS OF THE LAW OF DELICT
‘are those purposes or ends which people seek to further or achieve through
delict’
o Remember though: the law is not static
COMPENSATE FOR HARM THAT HAS BEEN SUFFERED OR AN
INTEREST THAT HAS BEEN INFRINGED
Compensation for harm = primary function
Delict should be noted as not being the victim’s only source of compensation -
> don’t overestimate delict as a compensatory mechanism
PROTECT CERTAIN INTERESTS
In the case of competing interests, the law offers protection where it is socially
desirable
,Personal Personal Infringements Mental health Business Pure economic
security property of personality Pain and sufferinginterests interests
protected by protected by Privacy relating to Goodwill
threatening to threatening to Identity physical injury Customer bases
hold people hold people Mental health in
accountable accountable general
calls on gov to be
more responsible
Not exclusively for victim interests
o Victim’s interests < defendant’s interests (self-defence or fair comment)
o Victim’s interests < societal interests (claim is denied due to need to
limit scope of delictual liability)
PROMOTE SOCIAL ORDER AND COHESION
Does the above by
o Resolving particular types of dispute
o Ensuring justice between parties
o Keeping the peace
o Preventing self-help
Delictual remedy serves as a type of ethical retribution in some instances
EDUCATE AND REINFORCE VALUES
Principles of personal responsibility for conduct and outcomes
This creates a need to articulate a set of normative rules for behaviour to
provide guidance on behaviour + express disapproval of certain types of
conduct
PROVIDE SOCIALLY ACCEPTABLE COMPROMISES BETWEEN
CONFLICTING MORAL VIEWS
Ensure that a conflict is resolved by balancing the rights of freedoms in the
circumstances in a socially acceptable way
,DETER THE INJURER FROM BEHAVING SIMILARLY IN THE FUTURE
AND TO WARN AND DETER OTHERS FROM BEHAVING IN A SIMILAR
WAY
Delict aims to deter people from behaving in a certain way
Limited however to intentional conduct and in some cases negligent conduct
Interesting: for deterrence to be considered effective, we would have to
assume that people consistently behave rationally
REALLOCATE FOR POTENTIAL LOSSES
Reallocating losses from victim to injurer
Loss-spreading
o Vicarious liability
Arguments for loss- Arguments against
spreading loss-spreading
Some people are better Delict is mainly a system
suited to compensate the designed to ensure
victim personal responsibility
Strict liability regimes for for one’s conduct
product liability Loss-spreading pushes the
losses that are made good
outside of delict and into
the realm of social welfare
DELICT AND INSURANCE
DOCTRINE OF SUBROGATION
Victim of delict
Indemnity insurance: insured person
who has successfully instituted a
delictual claim and damages = or < the Contractual
Delictual action
action against
against
insurance
wrongdoer
provider
, insured amount is obliged to repay the insurer any amount received under the
contract
Prevents double compensation + ensures wrongdoers take legal responsibility
for harm done
Indemnity insurers institute actions in the name of insured person
o No cession of action
o Provided: insured person has not yet claimed any damages
o Limits liability of insurer
DELICT AND TECHNOLOGY
Are traditional delictual principles appropriate for dealing w/
legal issues in the cyberspace?
o Cyber-delicts
So far: common law has been flexible enough
REMEDIES
Compensation
o Claim damages for harm caused
Interdict
o Order to prevent harm from continuing / prevent threatened harm from
occurring
o Done to prevent loss
o All elements of delict EXCEPT loss requirement
Form of Harm Action Taken
Patrimonial loss (damnum iniuria Actio legis aquiliae
datum)
Non-patrimonial harm in the form of Germanic action for pain and suffering
pain and suffering or loss in the
amenities of life associated w/ bodily
injury to the plaintiff and psychiatric
injury
, Non-patrimonial harm in the form of Actio Iniuriarum
an injury to a personality right
LAW OF DELICT OR LAW OF DELICTS?
Generalising approach: general principles or requirements regulate delictual
liability
A principled approach to the law of delict best provides consistency and clarity
in applying our law
o Doctrinal tidiness
o Proper framework enables lawyers to predict potential outcomes better
and advise w/ greater certainty
Statutory Statutory
Law of Delict compensator compensator
y regimes y regimes
No fault No fault
No fault
Fault liability Fault liability compensatio compensatio
liability
n n
Vicarious Road Social indemnity
Lex aquilia
liability accident fund security insurance
Occupational
Criminal law
Germanic Actio de injury
compensatio Medical aid
remedy pauperie compensatio
n orders
n
Actio Actio de
iniuriarum pastu
Some Some
statutory statutory
liability liability
Constitutional
remedies
PROTECTED INTERESTS
Nature of the plaintiff’s interests > nature/quality of defendant’s fault
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