Unit 1 - Introductory Overview

Question 1

What is a delict ?

Answer 1

The wrongful and blameworthy conduct of a person that causes harm to another.

Question 2

What are the five requirements of delict ?

Answer 2

• Harm/Damage.
• Conduct.
• Causation.
• Fault.
• Wrongfulness.

Question 3

What are the pillars of delict ?

Answer 3

• Actio Legis Aquiliae.
• Actio Inuriarium.
• Germanic action for pain and suffering.

Question 4

What are the functions of delict ?

Answer 4

• Compensation.
• Protection.
• Education.
• Promotion.
• Provision.
• Deterrence.
• Reallocation.

Question 5

What is the difference between delict and breach of contract ?

Answer 5

• Breach of contract is the failure to perform an obligation or contractual personal right; with the remedies being to enforce, fulfil or execute.
• Delict is the infringement of any legally recognized interest excluding contractual duties; with the remedies being damages or satisfaction.

Question 6

What is the difference between delict and crime ?

Answer 6

• Delict is a part of private law and the remedies are compensatory in nature.
• Crime is a part of public law and the remedies are penal/punitive in nature.

Question 7

Discuss the impact of the Constitution.

Answer 7

• Adjusting.
• Changing.
• Introducing.
• Application.

Question 8

What are the three principles you can apply to avoid heedlessness ?

Answer 8

• Legal rules are established and don’t always change when applied to specific cases.
• The Constitution influences how laws are developed but doesn’t directly affect the application of common law in specific situations.
• Duties imposed by the Constitution are generally directed at the state as a whole or its representatives, not individual state employees, to ensure fairness.

Question 9

What are the reasons for justifying the rejection of constitutional heedlessness ?

Answer 9

• Africanist Legitimacy.
• Deconstructive Substantive Equality.
• The Single System of Law.

Question 10

What are the reasons for justifying the rejection of constitutional over-excitement ?

Answer 10

• Transformation is not revolution.
• The Constitution also has its limits.

Question 11

Discuss the adjudicative subsidiarity as a midway between the extremes.

Answer 11

• Adjudicative Subsidiarity is a principle that helps balance the use of constitutional law by emphasizing the following steps.
• Primary Source: Start with relevant legislation if a constitutional right is allegedly violated.
• Secondary Source: If legislation is insufficient, turn to common or customary law.
• Exceptions: Apply the Bill of Rights’ spirit and purpose; courts can develop common law to align with justice.
• Constitutional Damages: Only claim if all other legal remedies have been exhausted.