Elements of a delict
relevant cases
Unlawfulness & general test
Fault (dolus directus and dolus eventualis
Negligence
Causation
Damage
Possible test/exam question & previous test/exam questions
Listen to the voice note accompanying this study note. This study note is a very broad
framework and is not sufficient for test purposes. The court cases listed in this study note are
not prescribed reading. If you want to understand the principles a bit better, you can find and
read these cases on your own time. You will not be assessed on the court cases listed below.
The only prescribed judgment for assessment purposes is the Carmichele judgment. See the
examples from old test papers at the end of this note (contract and delict) so that you know
what to expect and prepare for in your assessments.
Elements of a delict
1. Act
2. Unlawfulness
3. Fault
4. Causation
5. Damage
Act
Voluntary human act (absolute force; heart attack; sleepwalking; seizure; reflex) but see R v
Victor 1943 TPD 77 (person is aware that he may suffer an epileptic seizure and still decides
to drive a motor vehicle)
Animal as instrument (police dogs: Jooste v Minister of Police 1975 1 SA 349 (OK); Chetty v
Minister of Police 1976 2 SA 450 (N)).
Some omissions can also constitute a delict if there was a legal duty to act and the person
failed to act: for example, a lifeguard sees a child struggling in a swimming pool, fails to rescue
the child and the child drowns.
Unlawfulness
General test: legal convictions of the community (boni mores) (Coronation Brick v Strachan
Construction 1982 4 SA 371 (D); Compass Motors v Callguard 1990 2 SA 520 (W) 528-529).
The legal convictions of the community are now to be found in the Constitution (section 39(2))
- Carmichele judgment (prescribed reading).
Crystallisation of the boni mores test: Infringement of a subjective right (law of persons)
Grounds of justification can excuse unlawfulness
Some examples:
Private defence: when a person, in a reasonable manner, defends themself or defends
another person's legal interests against an unlawful or impending unlawful attack. For
example, A hits B over the head to prevent B killing A (or C) with a knife.
Necessity: when a person, due to a dangerous situation, has to infringe on an innocent
person's legal interests to protect their own legal interests or that of another person
(including the innocent party). For example: A fire breaks out in B's house. C, B's neighbour,
breaks down the house's door to put out the fire.
Consent (volenti non fit iniuria): When a person who is capable of granting consent, consents
that they may be prejudiced. For example, in a sport that involves physical contact and injury
is a foreseeable consequence of participating in that sport.
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, Fault
Two forms of fault: Intention (dolus) and negligence (culpa)
Intention: Direction of will to achieve a particular result with knowledge of the unlawfulness
of the result
dolus directus: X wants to kill Y to take their money. X shoots Y and Y dies.
dolus indirectus: X wants to achieve a particular result and another consequence will
automatically also follow. Y stands behind a closed window. X wants to kill Y. The only way to
kill Y is to shoot Y through the closed window. X shoots Y and the bullet shatters the window.
dolus directus in killing Y and dolus indirectus in breaking the window.
dolus eventualis: where a consequence is foreseeable, and the person reconciles with that
possibility occurring and proceeds with the action nevertheless. X competes with Y in a race.
X desperately wants to beat Y. X tampers with Y's motor vehicle's brakes. X realises that by
doing this, Y could be seriously injured or even die in a subsequent crash. X nevertheless
proceeds with tampering with the brakes, reconciling themself with that possibility occurring.
During the race, Y crashes and dies. X has dolus eventualis for Y's death.
Knowledge of the unlawfulness is also a requirement for intention to be present. X threatens
Y with a gun. Y thinks it is a real gun while in reality it is a toy gun. Y assaults X to protect their
own life. Objectively, Y's life was never in danger, so Y acted unlawfully (no ground of
justification present). Y thought they were entitled to act in the way they did, therefore did
not know their action was unlawful, therefore did not have intention.
Negligence
Would a reasonable person have (i) foreseen the damage and (ii) taken reasonable steps to
prevent the damage from occurring? If so (answer yes to both), then negligence is present.
(Kruger v Coetzee 1966 2 SA 428 (A)).
Foreseeability: the higher the degree of likelihood that the result would occur, the more likely
that a reasonable person would have foreseen the result
Preventability: the nature and scope of the risk of the person proceeding with their actions;
the nature and seriousness of the damage, should the risk of damage eventuate; the costs
and inconvenience to take preventative steps. For example, a sports stadium managing agent
realises that in a cricket match, a player could strike the ball and that the ball could travel into
the spectators and hurt a spectator. The chance of this occurring is remote, and the chance
of serious injury is also remote. The costs to prevent a ball from travelling into the spectators
would likely be quite high (eg transparent barriers being put up around the spectators' seats).
Should a ball travel into the spectators and a spectator be hit and seriously injured, and
decides to sue the sport stadium manager, the manager will argue that they were not
negligent - that they acted as any reasonable sport stadium manager would have acted in the
same circumstances.
Causation
For causation to be present, there must be factual causation and legal causation.
Factual causation: "but for" test. "But for" the act/omission, would the damage still have
occurred? (also called the conditio sine qua non test).
Legal causation: is the link between the act and the damage too remote for legal liability to
follow?
Take the following example: The referee in a soccer match awards a controversial penalty.
Team A unexpectedly wins the match. A supporter of Team B becomes so enraged that he
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