Law of Delict
LADE6212
Deon Louw
• E: 70922@[Link]
Module Outline (LADE 6212)
• Introduction
• Law of Delict
• The branch of private law, which governs the relations between individuals.
• Why Law of Delict?
• The fundamental premise in law is that damage lies where it falls, which means that
everyone must bear the damage they suffer.
• There are, however, certain circumstances where legally, the damage will shift from one
person to another and the latter will be obligated to cover the damages incurred by the
former.
• This is regulated by the law of delict.
• The purpose of this module is to provide students with an overview of the law of delict
Module Outline (LADE6212)
• Learn
• LADE6212 is a Learn module, and as such, you are required to engage extensively
with the content on the Learn platform.
• Work through the learning units on Learn in your own time – especially before
class. Any contact sessions will therefore be used to raise and address any
questions or interesting points.
• Module Purpose
• The purpose of this module is to
• provide students with an overview of the law of delict
• Provide sufficient knowledge and understanding of the Law of Delict in respect of the
common law principles applicable, the case law in this field of law.
Module outcomes
MO 1
• Demonstrate knowledge and understanding of the
Common Law as it pertains to the Law of Delict.
MO 2
• Demonstrate knowledge and understanding of the
applicable case law pertaining to the Law of Delict in
order to evaluate and analyse the applicable case law
independently.
MO 3
• Apply the applicable Common Law principles, case law,
and, where appropriate legislative provisions, to a
scenario (set of facts), with the aim of preparing a legal
opinion on how a South African court is likely to find in
a particular scenario.
Assessment
• ICE
• 4 Formative
• Formatives
• Test
• See Module outline
• Assignment
• Summative Summative
• Exam
• See Module outline
and announcements
Learning Unit One
INTRODUCTION AND HISTORICAL BACKGROUND
Overview
• The Purpose of the law, particularly private law, is to regulate relations between individuals in a
community.
• The fundamental premise in law is that damage lies where it falls, which means that everyone
must bear the damage they suffer.
• There are, however, certain circumstances where legally, the damage will shift from one person to
another and the latter will be obligated to cover the damages incurred by the former.
• This is regulated by the law of delict.
• In this learning unit, we will look at the nature of a delict and its place within the South African
law system.
• 1 Session
• Work through Themes 1 on Learn, together with the relevant sections of your
prescribed source/s.
• Complete the activities on Learn (See MO).
TIP!
• Create your own glossary of key terms.
Theme 1: Introduction and Historical Background
LEARNING OUTCOMES
• LO1: Explain the role of
the law of delict.
• LO2: Define a delict.
• LO3: Name the five
requirements or
elements of a delict.
• LO4: Explain the
generalising approach
to the law of delict.
• LO5: Explain the three
actions or pillars of the
law of delict.
Theme 1: Introduction and Historical Background
LEARNING OUTCOMES.
• LO6: Describe the nature
of the infringement which
each of the three actions
apply to.
• LO7: Identify the form of
fault required for each of
the three actions.
• LO8: Contrast delict and
contracts.
• LO9: Contrast delict and
crimes.
• LO10: Discuss the impact
of the Constitution and
Human Rights on the law
of delict.
LO 1: Explain the role of the law of delict.
• The Questions:
• Purpose
• Premise – res perit domino!
• Obligation re damage and compensation. Right to claim and be compensated.
• The role of the law of delict (Law of obligations)
• It indicates which interests are recognised and;
• Under which circumstances they are protected against infringement.
• Summary
• In general terms, the law of delict then determines the circumstances in which a
person is obligated to bear the damage he has caused another (Civil liability)
LO2: Define a delict.
Definition -
A delict is the act of a person that in a wrongful and culpable way causes harm to
another.
Van der Waldt and Midgley
Van der Merwe and Olivier
LO3: Name the five requirements or elements of a
delict.
• Derived from the definition:
• One: Act
• Two: Wrongfulness
• Three: Fault
• Four: Causation
• Five: Harm
• All five elements/ requirements must be present in order for there to be
a delict.
• If any one missing/ negated – no question of a delict and no liability.
We will focus on these individually in this module.
LO4: Explain the generalising approach to the law of
delict.
• Generalising – Approach in SA
• Delict governed by a generalising approach.
• General principles or requirements regulate delictual liability.
• Irrespective of the interests impaired (body, honor, trade secret, goodwill, etc).
• Irrespective of the way in which impairment was caused.
• Casuistic approach (English law)
• Law of torts – a group of separate delicts each with its own rules.
• Satisfy the requirements of that specific delict for liability.
LO5: Explain the three actions or pillars of the law of delict, the
nature of infringement (LO6) and form of fault (LO7).
• Qualification to generalising
approach, distinction made
between:
• Damnum iniuria datum.
• Patrimonial damage.
• Damage to things/ heritage
(real monetary value.)
• Iniuria.
• Injury to personality.
Three Pillars?
LO5: Explain the three actions or pillars of the law of delict,
the nature of infringement (LO6) and form of fault (LO7).
• I Actio legis Aquiliae
• Damage for the wrongful and culpable (intentional or negligent) causing of
patrimonial loss are claimed. (damnum iniuria datum delicts)
• II Actio iniuriarum
• Directed at satisfaction (solatium or sentimental) damages for the wrongful and
intentional injury to personality. (Iniuria delicts)
• II 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.
LO8: Contrast delict and contracts.
• Similarity
• Part of private law (wrongful conduct). Claim ex contractu and delictio is possible!
• Both are acts by one person wrongful and culpable causing damage to another.
• Differences
.
• Contract (Law of Contract) Delict (Law of Delict)
Constituted by non- fulfilment by a Infringement of any recognisable legal
person (contractual party) of a interest of another. (Excluding non
contractual right (claim) or obligation fulfilment of a contractual duty to
to perform. perform).
Primary remedy: - directed Primary remedy – damages/
enforcement, fulfilment or execution. satisfaction.
Damages – secondary part/claim.
LO9: Contrast delict and Crimes.
• Similarity
Wrongful culpable acts. Same act can be delictual and criminal with delictual and
criminal liability.
• Differences
Crimes (Public Law) Delict (Private Law)
Public law directed at the upholding of Private law directed at protection of
the public interests. individual (private) interests.
Remedies – Penal nature, intended to Remedies - Compensatory in character,
punish individual for transgressions compensation for the harm the
against public interests. wrongdoer caused.
Crime not always a delict. A delict not always a crime.
LO10: Discuss the impact of the Constitution and Human
Rights on the law of delict.
• Constitution supreme law and any law inconsistent is invalid.
• Bill of Rights – Chapter 2.
• Also applicable to delict.
• Horisontal and vertical application.
• Limitation Clause (to Bill of Rights) –Section 36.
• Law of general application,
• Reasonable and justifiable in an,
• Open and democratic society
• Based on human dignity equality and freedom.
• Interpretation of Chapter 2.
• Courts must promote the values of an open and democratic society based on human dignity
equality and freedom.
• International law and foreign law
• Promote spirit, purport and object of the Bill of Rights.
LO10: Discuss the impact of the Constitution and Human
Rights on the law of delict.
• Carmichele v Minister of Safety and Security.
• Questions:
• Confirmed the general Constitutional obligation on the Courts to develop the common law to
promote the spirit, purport and objects of the Bill of Rights.
• The specific issue was whether the High Court and the Supreme Court of Appeal ought to have
broadened the concept of “wrongfulness” in the law of delict in the light of the State’s
constitutional duty to safeguard the rights of women.
• Facts:
• Applicant sued the two Ministers concerned for damages resulting from a brutal attack on her
by a man who was awaiting trial for having attempted to rape another woman.
• Despite his history of sexual violence, the police and prosecutor had recommended his release
without bail.
• Con Court
• Considered the potential liability of both police and prosecutors. As to the police, it held that
the State is obliged by the Constitution and international law to prevent gender-based
discrimination and to protect the dignity, freedom and security of women.
LO10: Discuss the impact of the Constitution and
Human Rights on the law of delict.
• Langa CJ (Phumlela gaming and
leasure)
• The bill of rights merely emphasizes
the principles already at play in the
common law.
• Delict: Well established body of common
law. Point of departure is therefore that it
does conform with the bill of rights
unless the contrary is clearly apparent.
• Application of the constitution?
• Direct and indirect.
LO10: Discuss the impact of the Constitution and Human
Rights on the law of delict.
• Application of the constitution
• Direct and indirect.
• Direct application:
• Direct vertical application – state must respect the fundamental rights except if
limitation clause applies.
• Direct horizontal application – courts must give effect to individual rights by
applying and (if necessary) developing the common law where common law does
not give effect to this right, unless the limitation clause applies.
• Fundamental rights relevant to law of delict must be applied in this
manner:
• Life, property, freedom etc. (value judgement).
• Conflict between one or two? – Weighing-up exercise between the two rights.
LO10: Discuss the impact of the Constitution and Human
Rights on the law of delict.
• How do we involve well developed principles such as reasonableness,
boni mores and wrongfulness in the value judgement and weighing-up
process/ exercise?
• In this exercise these principles may serve as prima facie indications of the
reasonableness of the limitation of the fundamental right. (Neethling, Potgieter,
Roos).
• Constitutional delict (rather constitutional wrong).
• Infringement of a fundamental right per se constitutes a delict, may overlap.
• Different requirements:
• Not every delict is a constitutional wrong and vice versa.
• Remedies differ (Delict - “right a wrong” , constitutional wrong –” affirming rights”).
• Avoid term constitutional delict or tort (we follow a generalising approach).
LO10: Discuss the impact of the Constitution and Human
Rights on the law of delict.
• Indirect application.
• All private law rules, principles and norms (including delict) are subjected to and
must therefore be given content in light of the basic values of Ch 2 rights.
• Same results as the direct application of the Ch2 rights.
• Applies to the delictual principles (boni mores, test for causation etc.)
• Already evident in case law.
• P24 ftn. 188 examples.