Test Prep

Question 1

Five elements of a delict

Answer 1

1. Conduct
2. Harm
3. Causation
4. Fault
5. Wrongfulness

Question 2

Delictual liability?

Answer 2

Delictual liability is based on voluntary human conduct.

Question 3

Active heritability

Answer 3

-plaintiff passes away before the claim is finalised.
- if claim succeeds, compensation will be paid into the deceased estate.

Question 4

Passive heritability

Answer 4

• defendant passes away before the claim is finalized.
• if claim succeeds, the deceased defendant’s estate is liable to compensate the plaintiff.

Question 5

Actio legis aquilliae

Answer 5

Is actively and passively heritable, irrespective of litis contestatio.

Question 6

Action for pain and suffering and actio iniuriarum

Answer 6

• only actively and passively heritable after litis contestatio.
• if the plaintiff or defendant dies before litis contestatio, the claim lapses.

Nkala case

Question 7

Loss of income

Answer 7

Refers to the money the plaintiff actually earns and stands to lose

Question 8

Loss of earning capacity

Answer 8

Refers to the person’s reduced ability to earn money in future.

Question 9

Contributory fault

Answer 9

• is where the plaintiff contributed in her own harm.

Question 10

Joint Wrongdoers

Answer 10

-is where more than one defendant contributed to the plaintiff’s harm.

Question 11

Approach 1

Answer 11

degree of fault of the defendant depends on the degree of fault of the plaintiff.

Question 12

Approach 2

Answer 12

Looks at the conduct of each separately.

Question 13

Approach 3

Answer 13

the plaintiff’s degree of fault is merely one of the factors that courts may consider to reduce the damages.

Question 14

Loss suffered?

Answer 14

Loss suffered due to the death or injury of another person is NOT recoverable.

Question 15

Exceptions are

Answer 15

1. If there is a duty to support or be supported.
2. Mostly based on family relationships

Question 16

Instances where loss is not recoverable

Answer 16

1. Parents and employers
2. Contracting parties
3. Heirs and legatees

Question 17

Instances where loss is recoverable

Answer 17

1. Heirs and immediate family for funeral expenses.
2. Claim by Executor for funeral and other expenses.
3. Persons with the right to support.
4. Death of a breadwinner.

Question 18

Requirements for the claim of loss of support

Answer 18

1. Deceased must have had the duty to support dependent.
2. Dependents must have the right to such support.

Question 19

Legally recognized claim for source of support

Answer 19

1. Marriage or similar relationship
2. Blood relations

Question 20

What is vicarious liability?

Answer 20

is a strict liability of one person (A) for the delict committed by another (B).

Question 21

Relationship where vicarious liability may arise

Answer 21

1. Employer and employee relationship
2. Individual members of partnership
3. Principal and agent

Question 22

There is no vicarious liability:

Answer 22

Between Spouses
Between children and parents

Question 23

Requirements of vicarious liability:

Answer 23

1. There must be an employer-employee relationship at the time of the delict
2. Employee must commit the delict.
3. Delict must be committed by employee while acting within the course and scope of the employment.

Question 24

Contract of mandate

Answer 24

Employer & independent contractor

Question 25

Contract of service

Answer 25

Employer & employee