CH 12 Customary Law of Delict

Question 1

Delictual co-liability:

Answer 1

1) Family head is liable for delicts committed by members of the family and institutes delictual claims on behalf of family members
2) Family head jointly sued for any delicts committed by family members
3)Applies to guardians, fathers and family heads for minors

Question 2

Defamation of character:

Answer 2

1) Statements alleging evil conduct, such as witchcraft
2) If it is done in heat of the moment, and the person shortly after gives a
public apology, no action lies

Question 2

Adultery:

Answer 2

1) Traditionally could only be committed by women
2) Can also be committed by a widow in an ukungena union
3) Spouse can claim a full fine for each separate act of adultery
4) Husband can claim for return of lobolo delictual claim must be immediately instituted evidence may be necessary (catch)

Question 3

Adulterer can raise the following valid defences

Answer 3

1) Neglect and ill-treatment, and the married woman was given a
reasonable impression that her husband abandoned her
2) Collusion and connivance (husband knew and allowed the wife to have
intercourse when he could have stopped them)
3) Spouse has been deserted and the other spouse has no intention of
returning to the marriage

Question 4

Additional information about adultery:

Answer 4

1) Delictual claim must be immediately instituted
2) Evidence such as blankets found at the scene may be necessary
3) This evidence is referred to as a ‘catch’

Question 4

The delict of seduction

Answer 4

1) Defloration of a woman results in a delictual claim
2) Damages can be claimed by the woman’s guardian
3) Further damages can be claimed where pregnancy ensues
4) Damages for pregnancy apply whether the woman had been
previously married or not

Question 5

Ukuthwala as a delict

Answer 5

1) Main purpose of the ukuthwala custom is to initiate marriage negotiations
3) Agreement between the man and the woman is necessary

Question 6

2) Ukuthwala: Pt Delict

Answer 6

4) Consent of the woman’s family is also essential to validate the custom
5) This leads to a delict where the woman’s family does not give consent
6) This may be where the woman’s family believe that the carrying away
of the woman was an insult to the family

Question 7

Prescription

Answer 7

1) Prescription of actions is not a part of customary law
2) Delay in taking action may merely prejudice a claimant’s case
3) It may also be fatal to a claimant’s case because of the fading out of
evidence
4) However, such a delayed claim may never prescrib