UNIVERSITY OF ZIMBABWE

Delict
LB2 04

2014

Duration of examination: 3 hours

Instructions:

Students must answer FOUR questions. At least ONE question must be answered from
Section A and at least ONE question from Section B.

Each question carries 20 marks. Where questions are subdivided into more than one
part, students must answer all parts of the question and the marks for the question will
be equally divided between the subparts.

Candidates may take into the examination room an unannotated and unmarked copy of
the Delict Case List supplied by the lecturer.

Section A
Answer at least ONE question from this Section

Question 1
The outcome of a delictual claim for damages for personal injury is often unpredictable
because the concept of negligence is inexact and the decision will hinge on the judicial
officer’s value judgment about whether the defendant’s conduct was unreasonable in
the circumstances. To recover damages the plaintiff must prove not only that the
defendant should have foreseen the harm to the particular plaintiff, but also that the
defendant failed to take reasonable the steps to guard against this harm occurring,
applying four criteria. There are further obstacles for the plaintiff. Damages cannot be
recovered if the identity of the harm causer is unknown or the defendant lacks the
financial means to pay damages. Finally where liability is disputed, a plaintiff without the
means to engage a lawyer is very unlikely to be able to obtain a court judgment in his or
her favour.

Critically discuss these comments with reference to relevant case law and give your
opinion about whether we should move away from insisting that the harm causer must
be held responsible to pay damages and instead establish social schemes that will
ensure that accident victims receive compensation.
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 Question 2

a) Should a media institution which publishes a story which turns out to be

inaccurate be able to have as a defence to an action for defamation that it
published the story in the public interest after taking all reasonable steps to check
that the story was accurate?

b) Why are our courts reluctant to grant interdicts to prevent the publication of
allegedly defamatory stories and can a commercial company sue for defamation?

Question 3

a) In your opinion, is it a valid policy justification for denying a claim for damages for
causing purely economic loss caused by the defendant’s negligence that, if the
plaintiff is granted damages, this will open the floodgates to a multiplicity of claims
potentially making the defendant liable in an indeterminate amount, for an
indeterminate time to an indeterminate class of persons?

b) Discuss whether in personal injury cases we should modify the rule that the
plaintiff must bring, in a single action, his or her claim for damages for past and
prospective loss by giving the courts a discretion to make interim or provisional
damages awards, provisional awards or to allow for periodical payments.

Question 4

a) Clearly differentiate between—

i) the delict of malicious abuse of legal proceedings; and

ii) the delict of unlawful arrest or imprisonment.

b) Discuss the contention that, in the modern society, the delict of adultery is
completely archaic and outmoded and should be abolished.

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 Section B

Answer at least ONE question from this Section

Question 5

Speedy Trucking has despatched its driver, Mr Ngoni, in a truck to deliver some goods
to a company which requires these goods as quickly as possible. Instead of going
straight to the company concerned, Mr Ngoni diverts away from the route and travels
five kilometres to go to his house to pick up some papers that he needs in order to apply
for a passport. He picks up the papers and, soon after leaving his house, he enters a
major road without giving way at the intersection where he is required to give way to
traffic on the major road. Mr Chiweshe was driving his vehicle on the major road. He
sees the truck entering the road in front of him without giving way. He applies his brakes
but, because he is travelling at a speed of 170 kph in an area where the speed limit is
70kph, he is unable to stop his vehicle in time and collides with the truck. Mr Chiweshe
suffers serious injuries, injuries that would not have been as bad if he had been wearing
his seat belt. Mr Chiweshe’s car is also badly damaged, as it the truck, but Mr Ngoni
does not suffer any physical injuries. Both Mr Chiweshe and Speedy Trucking hold fully
comprehensive motor insurance.

What are the respective delictual rights and liabilities of the parties involved in this
matter and will any damages which they can claim against the defendants be reduced
by the amounts they have recovered from their insurance companies?.

Question 6

a) Safe Investments Pvt Ltd has a Board of Directors comprising five directors, one of
whom is Mr Gondo. The Daily Scandal publishes in its newspaper a letter to the
Editor written by Mr Deve in which he states that the directors of Safe Investments
are drastically overpaid, are not interested in protecting the interests of the company
and are continuously stealing the money that has been given to the company by
clients for investment on their behalf. The newspaper is distributed throughout the
country and is also published on a web site.

Advise Mr Gondo as to whether he will be able to recover damages for defamation.

b) A long established company with a well known and respected trade name, Cadbury
Chocolates, has for a long time manufactured chocolate bars for sale to the public. A
new company, which has called itself Cabury Chocolates, has recently started to
manufacture chocolate bars for sale to the public. After opening the wrapper and

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 eating one of the chocolate bars from Cabury, Mr Glutton becomes very sick and
has to receive treatment in hospital. Forensic evidence establishes that the
chocolate bar eaten by Mr Glutton had been contaminated by a poisonous
substance. Cabury denies liability for the harm to Mr Glutton claiming that it has a
production process which is meticulous in safeguarding against any contamination of
its chocolates. It maintains that any contamination must have occurred after the
chocolate bar left its factory.

Advise Cadbury Chocolates and Mr Glutton as to whether they can claim

delictual damages against Cabury Chocolates.

Question 7

Fantastic Enterprises is expanding its operations and requires a new factory. It engages
a firm of architects, Expert Design Pvt Ltd, to design the new factory according to the
specifications provided by Fantastic Enterprises. After accepting the proposed plans,
Fantastic Enterprises then enters into an agreement with Expert Design in terms of
which Expert Design will engage and supervise a firm of builders to carry out the
construction of the factory. Expert Design engages Flawless Constructors to build the
factory.

After completion of the project, Fantastic Enterprises occupies the factory and starts
production there. Three months later, one of the walls of the factory collapses outwards
onto a public road and badly injures Mr Sam Deve who was walking down the road.
Immediately, the factory has to be shut down. An independent investigation establishes
that the collapse of the wall was due to the use of sub-standard cement in the
construction of the walls. It has therefore been necessary to knock down the entire
factory and re-build it from scratch, using another firm of builders. This has taken twelve
months during which there has been no production at all at the factory.

Advise Fantastic Enterprises as to its delictual remedies for the various financial losses
it has sustained and advise Mr Deve as to his delictual remedies for his physical
injuries.

Question 8

In each of the following cases decide whether P has a delictual remedy, taking into
account any defences that D may raise:

a) D accuses P, a woman, of being a lesbian which is totally untrue. No one else apart
from the woman hears this accusation. When the accusation is made to her, the

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 woman did not know what the word “lesbian” meant but when she learns the
meaning from her friend, she feels insulted and humiliated.

b) D, who is very drunk, loses control over his vehicle and mounts a pavement. On the
pavement a woman is pushing her baby in a pram. D’s car hits the pram, killing the
baby right in front of the woman. The woman herself is not physically injured but
suffers long lasting nervous shock for which she requires long term psychiatric
treatment.

c) P has accepted a lift in a car with a friend, D. P knows that D does not have a
driver’s licence. D drives very fast and tries to overtake a vehicle when it is unsafe to
do so as there is a rapidly approaching oncoming car. P panics and grabs the
steering wheel in an attempt to avoid a collision by bringing the car back onto the
correct side of the road. The car swerves violently and overturns and P is seriously
injured as a result.

d) D newspaper publishes an article in which it accurately quotes what a Minister of

State has said at a large public rally in Harare. What the Minister said at the rally is
highly defamatory of P.

e) X’s car collides with P’s vehicle due to the negligence of X. Neither driver is injured
but P’s vehicle is damaged whilst there is only minimal damage to X’s vehicle. A
police officer immediately attends the scene. P, in a state of shock, thinks that the
police officer is taking down the name and vehicle number of X. In fact, after
speaking briefly to X, the police officer allows X to drive away without taking down
any of his particulars. Later, when P wants to bring a delictual action against X, he is
unable to do so because he cannot trace X. P then brings a claim against the
Ministry of Home Affairs (D). He contends that the negligent failure by the police
officer to note down details of X prevented P from recovering damages from X and
the Ministry is therefore vicariously liable for his financial loss arising from the
negligent failure by the police officer to note down the driver’s name.

END OF EXAM PAPER