Law of Delict

LEARNING UNIT 1: INTRODUCTION TO THE LAW OF DELICT

23 & 27 FEBRUARY 2022
Student Graduate Attributes

Unless otherwise indicated, all learning outcomes

promote and develop academic competence – orange.

The learning outcomes in another colour indicate the

competency developed over and above academic

competence. Refer to last paragraph of learning unit for a

reflection of what you have learned.

 Learning outcomes:
After you have completed Unit 1, you should be able to do the following:

 Describe the role of the law of delict.

 Explain the meaning and implication of the res perit domino principle.
 Name and describe the instances in which the res perit domino principle will not apply.
 Determine where the law of delict fits into the whole system of law.
 Explain why the law of delict is part of the law of obligations.
 Define a delict.
 List the five elements of a delict.
 Distinguish between the generalising and casuistic approaches to the law of delict.
 Name the most important delictual actions and distinguish between them.
 Name the differences/similarity between a delict and a breach of contract.
 Name the differences/similarities between a delict and a crime.
 Write brief notes on the historical development of the action for pain and suffering.
 Learning outcomes:
After you have completed Unit 1, you should be able to do the following:

 Explain how the Bill of Rights (Chapter 2 of the Constitution) influences the law of delict and
is applicable to it.
 What does transformative constitutionalism mean in the context of law of delict?
 Understand and explain the concept of law reform and the role and purpose of
decolonisation in the new constitutional dispensation.
 Understand and explain the position of the African customary law in the mixed (plural) legal
system of South Africa.
 Preparation material
 Neethling and Potgieter (2020) Law of Delict. LexisNexis. Chapter 1.

 C Himonga and F Diallo. 2017. Decolonisation and Teaching Law in Africa with Special
Reference to Living Customary Law. PER / PELJ.

 Kamga, SD. 2018. Cultural values as a source of law: Emerging trends of ubuntu
jurisprudence in South Africa. African Human Rights Law Journal, 18: 625-649.

 Zitzke, E. 2018. A decolonial critique of private law and human rights. South African
Journal on Human Rights, 34(3): 492 – 516.

 Zitzke, E. 2014. Stop the illusory nonsense! Teaching transformative delict. Acta Academia.
46(3): 52 – 76.
 Preparation material: Case law
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).

Carmichele v Minister of Safety and Security 2001 4 SA 938 (CC).

Komape v Minister of Basic Education 2020 2 SA 347 (SCA).

Ngomane v Johannesburg (City) 2020 1 SA 52 (SCA).

DELICT: GENERAL NATURE AND PLACE IN THE LEGAL SYSTEM
Study
 Paragraph 1 of Chapter 1 of the textbook.
 Paragraph 1 (p. 305 – 306) of Chapter 7 and footnote 3 on p. 305.
 The following diagram indicates where the law of delict fits into the whole system of law:
 DELICT: GENERAL NATURE AND PLACE IN THE LEGAL SYSTEM

 A delict is defined in paragraph 1 as the act of a person who in a

wrongful and culpable way causes harm to another.

 This means that all five the elements of a delict must be present to
hold someone liable for a delict.

 If any one of the elements (the act, wrongfulness, fault, causation,

or harm) is absent, there can be NO delictual liability.

 Strict liability (see footnote 12) only finds application in a few

exceptional circumstances. Each of these elements is discussed fully
in the next six units.
 Elements of delict - explained
Here is an example of what the relevant paragraphs of a combined summons must contain on the ground of, for
example, assault (an infringement of a person’s physical mental integrity):
1
(Contains particulars of the plaintiff: name, address, etc.)
2
(Contains particulars of the defendant.)
3
On the 1st of January 2013 in Bloemfontein, the defendant intentionally and wrongfully hit the plaintiff with a fist.
4
As a result of this behaviour of the defendant, the plaintiff suffered damages to the amount of R5 000.
Do you recognise the five elements?
 DELICT: DIFFERENT DELICTUAL ACTIONS
Actio legis Actio iniuriarum Action for pain
In the law of delict – as a general rule – a person and suffering
Aquiliae
will only have a cause of action against another if Applied when  real rights  personality rights:  personality
wrongfulness is  personal corpus fama and rights: corpus
all five the elements of a delict are present. situated in rights dignitas
infringement of:  immaterial
property
These elements are the facta probanda of a rights
(patrimonial
delict. (Facta probanda are all the facts the loss)

plaintiff must prove to succeed with the claim.) Fault Intent/negligence Intent Intent/negligence
requirement
Type of damage Damages Satisfaction Compensation
The following diagram contains a brief but full claimed

distinction between the three most important Transmissibility Actively and Actively and passively Actively and

delictual actions, and you must know this off by

of action passively heritable after litis passively heritable
transmissible contestatio after litis contestatio

heart (and understand it).

before and after
litis contestatio
 DELICT AND BREACH OF CONTRACT
 Breach of contract and Delict is an act by one person which causes damage to another.
 Fundamentally different because the primary remedy for breach of contract is specific
performance / fulfilment whereas the primary remedy for delict is directed at damages or
restitution.
 Breach of contract is constituted by non-performance of a specific duty or obligation in terms
of a contract.
 Delict is constituted by a person infringing upon the legally protected rights of another in a
wrongful and culpable manner resulting in damages.
 Both creates an obligation between parties and therefore falls under the Law of Obligations.
 Delict and crime

 Similar / the same elements that constitute both .

 Delict – private law – protection of individual interests.
 Crime – public law – upholding public interest.
 Delictual remedies directed at compensation.
 Criminal sanctions are of a penal nature and are intended to punish the criminal for his / her
transgression.
 The same act can sometimes constitute both a crime and a delict.
 Historical development of delictual liability
 Three pillars: Actio legis Aquiliae, actio iniuriarum, action for pain and suffering.
 Roman law Roman-Dutch law South African law
 Actio legis Aquiliae: patrimonial loss
 Actio iniuriarum: intentional non-patrimonial loss (good name, dignity, privacy, identity)
 Action for pain and suffering: infringement of physical-mental integrity
 Development over time – common law – case law precedent
 Influence of the Constitution?
 What about the African customary law?
 Historical development of action for pain and suffering
 No compensation could be claimed under Roman law for negligent causing of bodily injuries.
 Actio legis Aquiliae was directed exclusively at patrimonial loss and actio iniuriarium could only be
claimed for intentional infringement of personality interests.
 Physical-mental integrity (pain & suffering, disfigurement, emotional shock, loss of amenities of
life and loss of life expectancy) not sufficiently protected under Roman or Roman – Dutch law.
 Action for pain and suffering adopted by South African law and is considered by courts as a
unique action that does not fall within actio legis aquiliae or actio iniuriarium.
 Law of Delict, Constitution, Human
Rights
 Constitution is supreme law of country and any law inconsistent is invalid.
 Fundamental rights not absolute and can be limited if it is reasonable and justifiable in an
open democratic society based on human dignity, equality and freedom.
 When interpreting the provisions of Chapter 2, the courts must promote the values (as
above) and in the process take into account applicable international law or comparable
foreign law.
 When developing the common law or customary law, the courts must promote the spirit,
purport and objects of the Bill of Rights.
 Carmichele v Minister of Safety and Security – where the common law deviates from the
objects of the Bill, the courts must develop the common law to illuminate the deviation.
 Phumelela Gaming and Leisure v Grundlingh – Langa CJ “the Bill of Rights in this respect
merely emphasises the principles already at play in the common law.
 Law of Delict, Constitution, Human
Rights
Direct application:
Means the state must respect the fundamental rights
Direct horizontal application entails the courts must give effect to an applicable fundamental
right developing the common law insofar as leglislation does not give effect to that right except
where it is justified to limit the right.
In situations of conflict between rights, there will have to be a careful balancing or weighing-up
of opposing rights (examples? Refer to page 20)
Entrenchment of rights in the Bill of Rights enhances their protection.
Difference between Constitutional damages and delictual damages? Refer to page 21.
Indirect application:
All private law rules, principles and norms are subject to the Bill of Rights.
Decolonisation and teaching law
Refer to the articles in the preparation material and take part in class discussion:

 What is transformative constitutionalism and how is it understood in a delictual context?

 What is your opinion on the meaning and effect of decolonisation of law in South Africa?
 Activity:
 Log onto Blackboard and explore the contents uploaded.
 Take part in the discussion board on decolonisation and teaching
law in South Africa.
 Make sure that you are able to answer all the activity questions
pertaining to Unit 1 in the study guide.