Introduction to Law of Delict

Question 1

Define a delict:

Answer 1

• Act
• Wrongfulness
• Fault (culpability)
• Causation
• Damage (NOT damages!)

Question 2

Define the law of delict - the definition. (Use the elements to define)

Answer 2

It determines under what circumstance a person can be held civilly liable for the damage he/she caused another

Question 3

Name the 3 pillars of law fo delict

Answer 3

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

Question 4

What is the Actio legis Aquiliae?

Answer 4

An action for the wrongful and culpable (intentional / negligent) causing of patrimonial damage

Question 5

What is patrimonial damage?

Answer 5

Patrimonial means damage with a rand and cent value - a financial loss suffered (i.e. affecting your patrimony / your estate)

Question 6

Give some examples of damages claimed in terms of the Actio legis Aquiliae

Answer 6

• Damages claimed in the case of death of a breadwinner;
• Claim for loss of income;
• Damage to property and subsequent damages claimed for damaged car;
• Psychologist account in case of emotional shock etc.

Question 7

What is the fault requirement for the Actio legis Aquiliae?

Answer 7

Fault - in form of intention or negligence

Question 8

What is the actio iniuriarum?

Answer 8

An action for the wrongful, intentional injury to personality.

NB: As a general rule intention needs to be proved. There are some exceptions e.g. defamation by the media.

Question 9

What is the fault requirement for the actio iniuriarum?

Answer 9

Intention - it is a personality infringement.

(There are some exceptions)

Question 10

Give examples where actio iniuriarum can be used to claim for damages:

Answer 10

Claim for satisfaction e.g.

• assault (physical bodily integrity);
• defamation (infringement of right to a good name);
• invasion of privacy

Question 11

What is the action for pain and suffering?

Answer 11

An action for the wrongful, culpable (intentional / negligent) impairment of bodily OR physical mental integrity

Question 12

Give and example of a claim for pain and suffering

Answer 12

Compensation for pain and suffering after an accident where plaintiff sustained injuries e.g. broken leg; paralysis; severe depression.

Question 13

Distinguish between delict and crime

Answer 13

Delict = private interest (claim compensation / damages)

Delict = civil; on a balance of probabilities; plaintiff v defendant

Crime = public interests (punishment)

Criminal = criminal procedure; beyond reasonable doubt; state v accused

Question 14

Distinguish between delict and

breach of contract

Answer 14

Delict = infringement of subjective right; primary remedy aimed and compensation (damages)

Breach of contract = non-fulfilment by a contracting party of a contractual personal right or obligation to perform ; directed at enforcement of contract (cancellation - unnatural remedy and only available in limited circumstances)

Question 15

Distinguish between generalised and casuistic approach to delict

Answer 15

General = general principles regulate delictual liability as a whole; can accommodate changing circumstances - it deals with general principles (SA Law follows this approach!)

Casuistic = Group of separate delicts, each with its own rules; needs legislation to create new delicts - torts

Question 16

Discuss how the Constitution influences the Law of Delict

(Study the key points together woth case law: Carmichele, Dendy, Fose)

Answer 16

KEY POINTS:

• Constitution = supreme law
• Supremacy clause: any conduct inconsistent with it is INVALID
• Chapter 2 of Constitution (Bill of Rights) entrenches certain rights, which binds leglislature, executive and judiciary.
• Section 36 can limit these rights, as NO rights are absolute
• Court MUSt take International Law into account and MAY take Foreign law into account
• Court must take SPIRIT, PURPORT and OBJECT of the BOR into acccount when interpreting legislation OR developing common law (Carmichele v Minister of Safety and Security)
• BOR has vertical and horizontal application
• Rights most relevant to delict = Right to life, freedom and security of person, privacy and dignity, equality, freedom of expression, right to human dignity, right to freedom of religion etc. (See your textbook p. 20)
• If rights are in conflict, courts will have to balance opposing interests
• Direct and indirect application of BOR
• BOR emphasis principles already at play in the common law

Question 17

Distinguish between a delict and a so-called constitutional delict.

Answer 17

• Delict = Compensatory function; must prove 5 elements
• Constitutional delict (Constitutional wrong) = Aim is the protection of the Constitution
• NOT the same

Question 18

Give and example of the direct application of the Bill of Rights:

Answer 18

Right to privacy

Question 19

Give and example of INDIRECT application of the Bill of Rights

Answer 19

Constitutional VALUES applied

e.g. reasonableness, boni mores and reasonable person test.

Question 20

What is the DIRECT VERTICAL application of the BOR?

Answer 20

• The state must respect the fundamental rights
• May no infringe them
• Unless such infringement is REASONABLE & JUSTIFIABLE in terms of the LIMITATION CLAUSE (Section 36(1) of the BOR)

Question 21

What does DIRECT HORIZONTAL application refer to?

Answer 21

• The courts must give effect to an applicable FUNDAMENTAL RIGHT by applying, and developing the common law where necessary, in so far as that legislation does not give effect to that right
• EXCEPT where it is REASONABLE and JUSTIFIABLE to develop the common law to limit the right in line with the LIMITATION CLAUSE (Section 36(1) of BOR)

Question 22

What effect does the entrenchment of fundamental rights in the Bill of Rights have on these rights?

Answer 22

• It enhances their protection.
• Gives them a higher status, e.g. the right to dignity
• There wil have to be a careful balancing and weighing up of opposing rights
• The boni mores criteria (legal convictions of the community) will serve as prima facie indications of reasonableness of a limitation of the BOR
• If such an entrenched right is infringed or threatened to be infringed, a prejudiced or threatened person may approach a competent court for appropriate relief.
• Note: Don’t confuse a constitutional wrong and a delict (5 elements)

Question 23

What is BONI MORES?

Answer 23

Legal convictions of the community

Question 24

What is PRIMA FACIE?

Answer 24

On the face of it

Question 25

List case law relevant to this unit:

(You must read and summarise them!)

Answer 25

• Carmichele v Minister of Safety and Security (Centre for Applied Legal Studies Intervening) 2001 (4) SA 938 (CC)
• Fose v Minister of Safety and Security 1997 3 SA 786 (CC)
• Dendy v University of the Witwatersrand and Others 2005 5 SA 357 (W)