Intro

Question 1

Define delict

Answer 1

The act of a person, which in a wrongful and culpable way, cause harm to another

Question 2

Elements of delict

Answer 2

Act, Wrongfulness, Fault, Causation, Harm

Question 3

Main remedies, form of damage and form of fault

Answer 3

Actio legis Aquiliae - patrimonial loss - intent or negligence; actio iniuriarum - personality infringements or injury - intent; action for pain and suffering - injury to personality due to bodily / physical-mental integrity

Question 4

What must an applicant prove to obtain an intedict

Answer 4

An act has or will be comitted; the act is or will be wrongful

Question 5

Differences between breach of contract and delict

Answer 5

Breach of contract comprises of the failure to fulfil a contractual right or obligation. Primary remedy is fulfilment, execution or enforcement of the contract and damages is merely ancillary relief. Delict comprises the infringement of a legally recognised interest, excluding the non-fulfilment of a duty to perform in terms of contract. Delictual obligations are imposed by law, whereas contractual obligations are voluntarily assumed.

Question 6

Differences between crimes and deliicts

Answer 6

The primary difference lays in the difference between private law (delict) and public law (crimes). Private law is aimed at protecting individual / private interests, whereas public law is aimed at upholding public interests. Remedies (delict) / sanctions (crimes) differ. the remedy for delict is compensatory in nature and aims to compensate or indemnify the aggrieved party from the harm suffered as a result of another’s conduct. Sanctions imposed for committing a crime is penal in nature and is aimed at punishing the wrongdoer for his transgressions against public interest.

Question 7

Fundamental rights relevant to the law of delict

Answer 7

Right to freedom and security of person
Right to assembly, demonstration, picket and protest
Right to freedom of trade, occupation and profession
Right to property
Right to life
Right to equality
Right to freedom of association
Right to dignity
Right to freedom of expression
Right to freedom of religion, belief and opinion
(Fat pleader)

Question 8

Direct application of BoR to law of delict

Answer 8

Direct vertical application means that the state must respect fundamental rights and not infringe them, except insofar it is justified in terms of the limitation clause.
Direct horizontal application means that the courts must give effect to fundamental rights by applying and developing the common law where it doesn’t give effect to them.
The Constitution is the supreme law and all law and conduct (of both the state and natural / juristic persons) must be consistent with it and therefore entrenched fundamental rights enjoy more protection and a higher status than other rights.
Conduct may constitute a delict and a constitutional wrong (constitutional delict), but a clear distinction should be drawn between the concepts, since their requirements differ materially.
A delictual remedy is aimed at compensation, whereas a constitutional remedy is aimed at vindicating, affirming, protecting and enforcing the fundamental right and preventing or deterring future infringements.

Question 9

Indirect application of the Bill of Right to the law of delict

Answer 9

Indirect application entails that all private law rules, principles and norms (including those of the law of delict) are subject to and must be given content in light of the basic values in Chapter 2.
Promoting the spirit, objects and purport of the BoR will likely deliver the same result as direct application especially in flexible delictual principles such as the boni mores test for reasonableness, the imputability test of causation and the reasonable person test for negligence, where policy considerations, fairness, justice and reasonableness play an important part