Summary
Chapter 10- 11 Summary - Law of Delict (PVL3703)
- Course
- Law of Delict (PVL3703)
- Institution
- University Of South Africa (Unisa)
Summary of 33 pages for the course Law of Delict at Unisa (Law of Delict)
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Chapter 10: Forms of Iniuria1. Introduction
• Examination of species of personality infringement within genus iniuria is essential for both
theoretical and practical purposes.
• Classification based on different rights of personality recognized and protected by law:
• Physical integrity: rights to corpus (body) and libertas (physical liberty).
• Right to fama: protection of good name.
• Dignitas: collective term for rights to dignity, privacy, feelings, and identity.
• Preliminary considerations include:
• Iniuria per consequentias.
• Personality infringement and patrimonial damage.
• Personality rights of children.
• Personality rights of state prisoners.
• Personality rights of juristic persons.
(a) Iniuria Per Consequentias
• At common law: iniuria can affect a person directly or indirectly.
• Indirect iniuria arises in relationships:
• Husband and wife.
• Father and child.
• Testator and heir.
• Actio iniuriarum: granted to husband/father for iniuria against wife/child and to heir for iniuria
against testator’s remains.
• Current courts reluctant to recognize this concept as it presumes automatic effect without
proving personality infringement.
• Must meet all traditional requirements for iniuria including animus iniuriandi (intent to injure).
• Lack of awareness of relationships can absolve liability.
(b) Personality Infringement and Patrimonial Damage
• Iniuria infringes a personality interest but can also cause patrimonial damage.
• Two actions must be instituted:
• Actio iniuriarum: for satisfaction (solatium).
, • Actio legis Aquiliae: for patrimonial damages.
• Media 24 Ltd v SA Taxi Securitisation confirmed:
• Patrimonial damages claimed with Aquilian action.
• Non-patrimonial damages claimed with actio iniuriarum.
(c) Personality Rights of Children
• Personality rights exist from birth until death.
• Children have rights recognized by law, including those in the Bill of Rights.
• Section 9(1) and (2) of the Constitution: equality before the law for everyone.
• Protection of children’s rights under section 28 of the Constitution emphasizes:
• Paramount importance of a child's best interests.
• Courts recognize rights to:
• Bodily and psychological integrity.
• Dignity, privacy, and physical freedom.
(d) Personality Rights of State Prisoners
• Prisoners retain all personality rights except those expressly taken away by law (residuum
principle).
• Rights include:
• Bodily freedom.
• Physical-psychological integrity.
• Privacy.
• Human dignity.
• Courts recognize that prisoners are among the most vulnerable to state failures in meeting
constitutional obligations.
• The notion that prisoners lose all personality rights upon admission is dismissed.
(e) Personality Rights of Juristic Persons
• Prior to Dhlomo v Natal Newspapers (Pty) Ltd: conflicting views on whether juristic persons
have personality rights.
• Some courts allowed trading corporations to sue for defamation if allegations could harm
business reputation.
• Dhlomo case confirmed:
, • Juristic persons can sue for defamation affecting business reputation.
• Non-trading corporations can sue for defamation regarding their affairs.
• Recognition of fama (good name) as a personality right for juristic persons is supported by case
law.
• However, juristic persons lack certain personality rights (e.g., feelings, dignity).
• Financial Mail (Pty) Ltd v Sage Holdings Ltd case supported the idea that juristic persons could
protect their privacy and identity.
• Confirmation that juristic persons can be defamed and entitled to remedies is practical and
conforms to societal demands.
• Limited to the rights to fama and privacy, while extending to identity may also be justified.
This chapter emphasizes the complexities and evolving nature of personality rights within the legal
framework, particularly regarding different entities and their capacity to claim protection under iniuria.
Continued
:
Study Notes on Rights Relating to Physical Integrity
2 Rights Relating to Physical Integrity
2.1 Introduction
• Physical integrity is recognized in law as worthy of protection.
• Two aspects of physical integrity:
• The body itself (corpus).
• Physical liberty (libertas).
2.2 The Right to Corpus or Body
2.2.1 General
• Corpus encompasses bodily and psychological integrity.
• Protected against any infringement of physique or psyche, including:
• Physical infringements may occur with or without violence and with or without pain.
• Includes infringement of senses causing feelings of disgust or discomfort.
• Psychological harm arises from fear or emotional shock.
, • Requirements for liability under actio iniuriarum:
• Infringement must not be trivial (de minimis non curat lex).
• Must be wrongful.
• Committed animo iniuriandi (with intent to harm).
• Wrongfulness:
• Every factual infringement is generally considered wrongful.
• Exceptions:
• Infringements aligned with societal demands or by omission may not be
wrongful.
• Justified violations of the body are lawful.
2.2.2 Seduction
• Definition: Extramarital defloration of a girl with her consent.
• Requirements for an action for seduction:
• Physical defloration of the girl.
• Must result from the man's seductive conduct (overcoming her opposition).
• Irrelevant factors include the method of seduction (e.g., promises of marriage, deceit).
• Liability exclusions:
• No liability if the girl initiated seduction.
• Continuing an intimate relationship after seduction results in loss of claim.
• Legal options:
• At common law, man could compensate or marry the girl.
• Uncertainty on defense against compensation claims with a bona fide offer to marry.
• Consent:
• The girl's consent does not negate the wrongfulness of the man's act.
• Scholarly opinions on seduction:
• McKerron: Action for seduction is sui generis due to lack of iniuria.
• Van der Merwe and Olivier: Action is an anomaly against consent principles.
• De Groot and others: Virgin's consent is invalid due to societal legal convictions
(boni mores).
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