Delict

Principles of Delict

Definition: A delict is an act committed/omitted by one person that unlawfully

infringes the legal rights of another to life, person, property, liberty or reputation. The
injured person is entitled to claim redress in the form of pecuniary compensation.
Most delicts are also crimes punishable by the state. However some are not e.g.
adultery is not a crime; while treason is a crime but a not delict.

Delicts fall into two main classes:

o Those that infringe a person’s rights to property, person or life and resulting in
pecuniary loss.
o Those that infringe the dignity, reputation or liberty of another and generally
involve insult [contumelia]. Such delicts e.g. defamation, assault or adultery
are referred to as injuriae. Damages for injuriae are recovered by way of actio
injuriarum as opposed to Lex Aquilia in the case of actual pecuniary loss.

Liability under Lex Aquilia is obtained for:

 Actual wrongdoing with pecuniary loss as aresult of defendant’s actions
 Injury must have been intentional or due to negligence.

Intention [dolus]. The wrongdoer must have foreseen and desired the consequences
of his act and must have known that the act was wrongful.

Negligence [culpa] consists of failure to exercise care. There is neglect of duty e.g.
cutting of branches of a tree on private property far away from any public path. The
standard of care is that expected in the circumstances from a reasonably prudent
person [diligens paterfamilias]. However the amount of care would vary with the
circumstances e.g.
 Handling a gun as opposed to a walking stick
 Potentially dangerous operations or driving etc.
 Taking regard of the class of person affected e.g. a child or disabled person
crossing a road.
 Undertaking work without the necessary skills

Liability under Actio Injuriarum. There must be no justification for the wrongful act
and the act must be by commission not omission. It involves malice [animus
injuriandi] –it is malicious and deliberate.

Defences for delict include:

 Statutory authority – provided the act is performed in the manner prescribed
by the law and reasonable/practicable steps were taken to minimise harm.
 Necessity in order to avoid greater wrong from imminent and actual danger.
The action taken must be reasonably necessary as in self-defence for oneself,
family or property in the face of unlawful aggression; provided the force used
is proportionate to the urgency/danger.
Greyvenstein v Hattingh 1911 AD. A farmer drove a swarm of locusts
which later settled on a neighbour’s farm and damaged his crops. The
farmer was held not liable.

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 Delict

 Consent by Plaintiff. Agreement may be express/implied. A person cannot

claim compensation for an act to which he agreed e.g. Schools in Zimbabwe
have indemnity statements signed by parents/guardians for pupils involved in
sport. Volenti non fit injuria.- there is no wrong to a person who agrees to it.
This principle applies provided the plaintiff knew of the danger, appreciated
its nature/extent and consented voluntarily [Knowledge, appreciation &
consent]. In Spires v Scheepers 1883, a plaintiff was injured by an ostrich
while working at defendant’s farm. The plaintiff had however been informed,
on engagement, of the dangers and been warned to take precautions. Plaintiff’s
action failed.
 Inevitable Accident which prevents a person from performing a positive duty
and his actions lead to injury. Inevitable accident has two kinds:
 Vis Divina [Act of God]. This includes an act of nature such as
flood/earthquake.
 Vis Major [Superior force] including an act of Government.

Damages may be of two kinds:

o Real/Substantial Damages awarded for actual loss suffered or presumed to
have been suffered.
o Patrimonial Damages awarded for actual pecuniary loss. These
constitute the ordinary remedies for most delicts through Aquilian
Action
o Sentimental Damages for wounded feelings, mental/physical pain or
suffering. In a fitting case special exemplary/vindictive damages may
be awarded.
.
o Nominal damages are instituted to establish a right which the defendant has
challenged. The amount awarded is merely nominal.

Damages take into account aggravating circumstances [which increase the damage] or
mitigating circumstances [which decrease the damage]. Lex Aquilia considers actual
loss already suffered or likely to be sustained. Damages are not recoverable where the
injury is too remote and is not the direct or probable result of the wrongful
act/omission.

Re Polemis & Furness, Witty & C o [English case]. Defendants’ servants negligently
knocked a plank into the hold of a ship in which there was petrol vapour. The plank
struck something, causing a spark which ignited the vapour. The resulting fire
destroyed the ship completely. Defendants were held liable even though it was not a
probable consequence that could have been foreseen.

In some cases a “new cause” may intervene e.g. if a pedestrian is knocked down by
my car and then taken to hospital in an ambulance which gets involved in a second
accident and the pedestrian then dies.

Interdict is an order of the Court restraining a person from committing or continuing a

wrongful act.

Any person who has suffered injury may claim redress. Persons liable include:
 The person who actually committed the delict

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 Any person who participated or assisted in the delict.

 Anyone who authorized it expressly or impliedly e.g. by employing and
controlling the actions of the person who actually committed the delict.

All persons who participated/assisted in a delict are jointly and severally liable. Any
person who orders/expressly authorizes another is jointly and severally liable. [Qui
facit per alium facit per se –he who acts through another acts through himself]. Thus
if a servant does what his master tells him, he and his master are liable. A person is
liable for the delicts of another even if he neither participated in or authorized the act
provided the latter was under his employment. The master is liable even if he was
unaware provided the employee was acting in the course of his employment. This
includes acts incidental to the master’s instructions. Test: was the servant about his
master’s business or was it for his own purpose?

VICARIOUS LIABILITY
Vicarious liability is the strict liability of one person for the delict of another. An
employer is vicariously liable for the delicts [wrongs] committed by his employees
acting in the course and within the scope of his employment. The principle is often
justified on the following grounds:
 By instructing his employees to engage in work on his behalf, the employer
creates the risk that his employee may cause harm to others.
 The employer operates his business through his employee and makes profit
through that.

For vicarious liability to attach two key conditions must be satisfied:

 The person who commits the delict must be an employee and not an
independent contractor; and
 The delict must have been committed while the employee was acting
in the course of and within the scope of employment.

The issues of control is paramount in establishing whether a person is an employee

[Nock v Minister of Internal Affairs: It was held that although physicians, surgeons
and nurses are employees in the general sense, they have discretion in the exercise of
their professional skills and so are not subject to control by their employer to the
extent of making him liable.] Also in BSAC v Crickmore, 1921, the Company was not
held liable in making an arrest – such arrest being a duty imposed statute with the
Company having no control. Again in Orphanides v Stratton, 1952 an employee was
held to temporarily employed by another under whose control he was at that time and
not his general employer.

Nott v ZANU(PF), 1983; A driver [Maburutse] was involved in an collision

due to his negligence. The driver had been authorized by his superior Brig.
Matanga to take an injured man to a clinic 4km away and return “chop,
chop” as the Brigadier wanted to use the vehicle to get to Mutoko. He was
also instructed to collect a lawn mower on his way back. On returning from
the clinic [and after waiting for the patient to be treated] he deviated from his
route to collect some personal papers thus adding some 7/8 km. He was
involved in an accident on this personal errand. The court considered both
space and time and concluded that the deviation “did not seriously interfere
with the exercise of his functions” and was not major in terms of time. He had

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therefore not abandoned his master’s work. [The judge made favourable
reference to Mkize v Martins]

Gorah v Mahona, 1984: A lorry driver was forbidden from giving lifts to
people. He however gave a lift to the defendant. He negligently overturned
and the appellant was injured seriously. Held: Courts will not restrict the
principle of the master’s vicarious liability too zealously.

A person is an employee when he contractually makes his labour available for

remuneration in such a way that the latter may exercise control [authority] over him.
This is usually referred to as a contract of service i.e. locatio conductio operarum. A
contract of service should be distinguished from a contract of mandate, i.e. locatio
conductio operis, where one person undertakes to render services to another for
remuneration without being subject to the control of the other. A contract of mandate
involves an independent contractor and does not in general create vicarious liability.

Independent contractors usually provide their own tools while employees are provided
with tools by the employer. Payment of a wage or a salary usually suggests that the
recipient is an employee while payment of a fee or a lump sum may suggest that the
recipient is an independent contractor. Independent contractors usually arrange for
payment of their taxes whilst for employees, the employer is responsible for the tax
deductions.

For vicarious liability to attach, the harm caused need not be due to the fault of the
employer. The employer may still be liable where he has instructed the employee
properly. A distinction must be drawn between a person who does what he is not
employed to do and one who does what he is employed to do wrongly or against the
express instructions of the employer.

The following three English cases will illustrate this point. In Century Insurance Ltd v
Northern Ireland Road Transport [1942], an employee caused a fire by attempting to
light a cigarette while transferring petrol from a delivery tanker to an underground
tank. In Limpus v London General Ombibus Co. [1862] a driver caused an accident by
racing another bus contrary to his employer's express instructions against the practice.
In both cases the employees were held to be acting in the course of their employment
hence their employers were held vicariously liable for the damage caused.

By contrast in Iqbal v London Transport Executive [1974] a bus conductor caused an

accident while attempting to reverse a bus contrary to his employer's express
instructions. The court held that the employer was not vicariously liable since the
employee was not acting in the course of his employment when he caused the
accident. Driving was not a part of his job.

Under Roman-Dutch law, it is not enough to simply allege that the employee
committed the delict during business hours. Where the employee does something
entirely for his benefit which does not form part of his duties at all, the employer will
not be held liable e.g. if a person employed at a car assembly plant steals from a
fellow employee, the employer will not be vicariously liable. Even where the
employee does something with the intention of benefiting the employer, the latter will
not be liable if the employee did something which is neither part of his employ nor

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reasonably incidental thereto. The fact that an employee deviates from the course of
employment does not necessarily mean that there will be no vicarious liability. For the
employer to escape liability, the deviation must be a major one in terms of time and
distance. The employer will however generally not be liable in cases of willful
misconduct by the employee.

Where instructions have been given, the crucial question to ask is:
Whether such instruction seeks to limit and define the actual sphere of employment.
Here, disobedience of the instructions will not create liability for the employer.
Whether they merely regulate the conduct of the employee within the sphere of
employment. In this case, disobedience may still result in vicarious liability.

Commission of a delict during the performance of a forbidden act will create

vicarious liability if the forbidden act is connected to the general character of the
employee's work and thus falls within the scope of his employment. Thus in General
Tyre and Rubber Co SA Ltd v Kleynhans 1963, the driver of a tractor, contrary to the
express instructions of his employer, drove on a public road and negligently caused an
accident. The employer was held liable. By contrast, in Magage v Murray & Stewart
1980, an employee who was a driver transported a person who was not an employee
of the company contrary to his employer's instructions not to carry non-employees as
passengers. The employer was held not vicariously liable because what the employee
did was totally unconnected to the general nature of his work transporting company
employees.

The fact that the employee was on duty when he committed the delict should be prima
facie indicative of liability. Given that this is a form of liability without fault on the
part of the employer, great caution must be exercised when choosing employees. The
trends seem to show that, courts are leaning more and more in favour of victims rather
than towards absolving employers from the wrongs done by their employees acting
during and in the course of their employment. It is simply not good enough for the
employer to plead that he specifically instructed the employee not to do what he did.

Mkize v Martins, 1914 AD. A transport driver employed two men and undertook to
feed them. In his absence they lit a fire to prepare a meal. They negligently allowed
the fire to spread and it caused damage to property. The transport driver was held
liable.

Roos v de Loor’s Ltd. a person employed as a confectioner took the company’s van to
deliver confectionery, without his employer’s knowledge or consent. The employer
was held not liable. The employee was not within his scope of employment.

The person must be an employee not an independent contractor. An independent

contractor is engaged to do a piece of work. He uses his own discretion without being
subject to the orders of the employer. A servant on the other hand is subject to the
orders and control of his employer in what he does and the manner of doing so. Thus
an employer is not liable for an independent contractor except if:
 He ratified/authorized the act
 He failed to give proper instructions to the contractor, or he employed an
incompetent contractor to do his work
 He directed the manner in which the work is done.

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 He has a duty by common law or statute.

 The work was dangerous and necessary precautions were not taken.

A person who lacks the use of reason cannot be held liable. He has no dolus/culpa.
Partners are jointly and severally liable for delicts committed in the course of
partnership business.

Liability: Co-debtors.

Where there is only one debtor, he alone is liable to the creditor for the full amount
owing. But if there are several debtors [co-debtors or co-contractors] liability may be:
- Jointly [correi debendi] or pro rata
- Jointly & severally [in solidum]

In the case of joint liability, each debtor pays only his pro rata or proportionate share
of the debt.

Joint & Several Liablity. Here the creditor can sue each debtor jointly or any one of
them for the full amount of the debt. In general, in our law, debtors are liable jointly.
Joint and several liability arise where:
o There is an express agreement
o Debtors are joint acceptors of a bill of exchange.
o They act sureties unless agreement allows for “benefit of division”.
o They are partners where the debt is incurred in the name of the partnership.
However an individual partner cannot be sued personally while the partnership
is still in existence. After its dissolution, each debtor can then be sued for the
whole amount.

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