Delictual Remedies

Question 1

Name the three actions that form the pillars of the South African law of delict

Answer 1

1. Actio legis Aquiliae
2. Actio iniuriarum
3. Actio for pain and suffering

Question 2

Discuss the transmissibility (heritability or cedability) of the three better - known delictual actions

Answer 2

The Aquilian action is actively as well as passively heritable;similarly, a claim under this action is freely cedable.Litis contestatio has no effect in this regard (unlike the position in respect of the actio iniuriarum and the action for pain and suffering).

The actio iniuriarum and the action for pain and suffering are actively passively heritable only after litis contestatio. The claim,therefore,lapses if the plaintiff or defendant dies before litis contestatio. Claims under these actions are also not cedable,in any case not litis contestatio.

Question 3

What is the aim and function of an interdict in the law of delict?

Answer 3

To avert an impending wrongful act or prevent the continuation of a wrongful act has been commenced

Question 4

What are the two forms that an interdict can take ?

Answer 4

1. Prohibitory interdict (prohibits wrongdoer from commuting wrongful act at all or from continuing with a wrongful act).
2. Mandatory interdict (requires positive conduct on the part or the wrongdoer to terminate the continuing wrongfulness of an act that has already been committed)

Question 5

Name and discuss the three requirements for granting of an interdict

Answer 5

1. There must be an act by the respondent. Which could already have commenced or be merely threatening- may be a commission or an omission
2. The act must be wrongful. Wrongfulness in this regard means that there must be a threat to or an infringement of a recognised subjective right. This does not imply that where such a right
   is absent ,wrongfulness in respect of an interdict cannot also lie in the breach of a legal duty
3. No other remedy must be available to the applicant

Question 6

When does a concurrence of remedies occur?

Answer 6

One and the same act may in principle result in several- different or alternative- remedies.

An act from which various claims arise,each of which places a distinctive action with the plaintiff’s disposal gives rise to different remedies. They may be similar (eg only delictiual) or dissimilar (eg delictiual as well as contractual).

By contrast,an act from which only one or more claims arise but which offers a choice between different remedies ,results in alternative remedies (eg a choice between a contractual and a delictiual action)

Question 7

Which case law summaries the factors that determine whether the claim of the prejudiced party’s choice is ex contracta or ex lege acquilia

Answer 7

Van Aswegen case

Question 8

List the factors that determine whether the claim of the prejudiced party’s choice is ex contractu or ex lege Acquilia

Answer 8

1. The extent of damages recoverable
2. The time for computation of damages
3. The liability of joint delictiual wrongdoers
4. The requirements for the capacity of persons
5. Vicarious liability

Question 9

What is an exclusionary clause?

Answer 9

Parties to a contract may restrict their liability - contractual as well as delictual - through the so- called exclusionary (exemption) clause. The precise restriction on the wrongdoer’s liability will depend on the interpretation of the clause concerned, and such interpretation will influence the question of what remedies the prejudiced party has at his disposal

Question 10

When does the period of prescription commence?

Answer 10

The period of prescription commences the moment all the elements of a delict are present and the creditor has knowledge (or ought reasonably to know) of the identity of the wrongdoer and the facts of the case.