OR EMPOWERM
UCATE F ENT
ED

Law
Basic
of Contract
SCHOOL OF ENGINEERING AND
Principles
INFORMATION SYSTEMS
LAW OF DELICT MODULE
Information processing
Legal
and
of
COMPUTER AND Studies
data
Sensation 4
organization
LEVEL 4SYSTEMS
INFORMATION (LEVEL 6)

Module

Lewis Muzuza
TRIUMPHANT
Compiled
Compiled
Compiled by
by
by
COLLEGE
Elizabeth
Thandekile
Jeremiah Veiko
Phulu
Katambo
LAW OF DELICT MODULE

LEVEL 4

TRIUMPHANT COLLEGE
Law of Delict Module

TABLE OF CONTENTS
CHAPTER 1........................................................................................................................... 1
1.2 Definitions of a delict...............................................................................................................1
1.3 The functions of the law of delict...............................................................................................1
1.4 Essential elements of liability based upon fault...........................................................................2
1.5 A systematic approach to delictual problem solving....................................................................3
1.6 General principles modified for specific actions..........................................................................4
1.7 The Germanic remedy for pain and suffering.............................................................................4
1.8 The actio iniuriarum.................................................................................................................4
1.9 The actio de pauperie..............................................................................................................5
1.10 The actio de pastu................................................................................................................5
1.11 Vicarious liability...................................................................................................................5

CHAPTER 2........................................................................................................................... 7
2.1 HARM....................................................................................................................................7
2.2 Introduction............................................................................................................................7
2.3 Patrimonial and non-patrimonial harm......................................................................................7
2.4 Pain and suffering....................................................................................................................7
2.5 Infringement of a personality interest.........................................................................................8
2.6 Bodily integrity.........................................................................................................................8
2.7 Dignity....................................................................................................................................8
2.8 Privacy....................................................................................................................................8
2.9 Reputation .............................................................................................................................8
2.10 Personality rights and constitutional rights...............................................................................9

CHAPTER 3......................................................................................................................... 10
3.1 Conduct...............................................................................................................................10
3.2 Introduction..........................................................................................................................10
3.3 Human Conduct..................................................................................................................10
3.4 Voluntary conduct and the defence of automatism....................................................................10
3.5 Commission and omission.....................................................................................................11
3.6 Animal behaviour..................................................................................................................11

CHAPTER 4......................................................................................................................... 13
4.1 CAUSATION.........................................................................................................................13
4.2 Introduction.........................................................................................................................13
4.3 Determining factual causation and the conditio sine qua non test..............................................13
4.4 Critique of the conditio sine qua non test.................................................................................13

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4.5 General test – The ‘flexible approach’.....................................................................................15

4.6 Subsidiary tests......................................................................................................................15
4.7 Direct consequences..............................................................................................................15
4.8 Reasonable foreseeability ......................................................................................................16
4.9 Adequate cause....................................................................................................................16
4.11 Novus actus interveniens .....................................................................................................16

CHAPTER 5......................................................................................................................... 18
5.1 FAULT...................................................................................................................................18
5.2 Introduction .........................................................................................................................18
5.3 Accountability.......................................................................................................................18
5.4 Youth....................................................................................................................................19
5.5 Mental disease or illness and emotional distress.......................................................................19
5.6 Intoxication...........................................................................................................................19
5.7 Provocation...........................................................................................................................19
5.8 Intention...............................................................................................................................20
5.9 Dolus directus or direct intention.............................................................................................20
5.10 Dolus indirectus or indirect intention......................................................................................20
5.11 Dolus eventualis or intention be acceptable of foreseen result.................................................20
5.12 Defences that exclude intention.............................................................................................20
5.13 Mistake..............................................................................................................................21
5.14 Jest...................................................................................................................................21
5.15 Intoxication.........................................................................................................................21
5.16 Provocation.........................................................................................................................21
5.17 Emotional distress...............................................................................................................21

CHAPTER 6......................................................................................................................... 23
6.1 Negligence...........................................................................................................................23
6.2 The concept of negligence.....................................................................................................23
6.3 Characteristics of a reasonable person....................................................................................23
6.4 The test for negligence...........................................................................................................23
6.5 Foreseeability and preventability.............................................................................................25
6.6 Foreseeability of harm............................................................................................................25
6.7 Preventability of harm............................................................................................................25
6.8 Circumstances and factors that indicate the required standard of care.......................................25
6.9 General practice..................................................................................................................25
6.10 Legitimate assumption of reasonable conduct of others...........................................................26
6.11 Sudden emergency and error of judgement...........................................................................26
6.12 Breach of statutory duty........................................................................................................26

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6.13 Dealing with inherently dangerous things, persons or circumstances.........................................26

6.14 Danger to children or people with disabilities or incapacities..................................................26
6.15 Proving negligence..............................................................................................................26

CHAPTER 7......................................................................................................................... 28
WRONGFULNESS.......................................................................................................................28
7.1 What is the role of wrongfulness in South African law?.............................................................28
7.2 When is the issue of wrongfulness likely to arise?.....................................................................28
7.3 Wrongfulness- an attribute of conduct?..................................................................................29
7.4 Wrongfulness presupposes both conduct and consequences
which do not necessarily occur simultaneously..............................................................................29
7.5 Wrongfulness- a matter of law................................................................................................29
7.6 Wrongfulness and the infringement of a right...........................................................................29
7.7 Wrongfulness and breach of duty............................................................................................30
7.8 Different concepts of ‘duty’.....................................................................................................30
7.9 What is the content of the legal duty?......................................................................................30
7.10 Policy consideration.............................................................................................................30

CHAPTER 8......................................................................................................................... 32
8.1 Grounds of justification: Defences directed at the wrongfulness element.....................................32
8.2 Consent ...............................................................................................................................32
8.3 Consent by assumption of risk................................................................................................33
8.4 Prior agreement not to claim (pactum de non petendo in anticipando).......................................33
8.5 Necessity..............................................................................................................................34
8.6 Self-defence (private defence).................................................................................................34
8.7 The requirements for relying on private defence are:.................................................................34
8.8 Provocation...........................................................................................................................35
8.9 Statutory authority.................................................................................................................36
8.10 Official capacity..................................................................................................................36
8.11 Obedience to orders...........................................................................................................36
8.12 Disciplinary powers..............................................................................................................37
8.13 Impossibility........................................................................................................................37
8.14 Wrongfulness......................................................................................................................37
8.15 Negligent misstatement........................................................................................................38

CHAPTER 9......................................................................................................................... 41
9.1 Unlawful competition.............................................................................................................41
9.2 Aquilian liability for unlawful competition.................................................................................41
9.3 Forms of unlawful competition................................................................................................41
9.4 Fault ....................................................................................................................................42

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9.5 Interests protected.................................................................................................................42

9.6 Wrongfulness........................................................................................................................43
9.7 Aquilian liability.....................................................................................................................43

CHAPTER 10....................................................................................................................... 46
10.1 Strict liability and vicarious liability........................................................................................46
10.2 What is the nature of the liability created by the Act?..............................................................46
10.3 Defectiveness of goods........................................................................................................46
10.4 Unsafe goods......................................................................................................................46
10.5 Failure ...............................................................................................................................46
10.6 Defect................................................................................................................................47
10.7 Hazard...............................................................................................................................47
10.8 Liability for breach of a statutory duty....................................................................................47
10.9 Typical factors that indicate wrongfulness...............................................................................47
10.10 Liability for harm caused by animals....................................................................................48
10.11 The actio de pauperie for harm caused by domestic animals.................................................48
10.12 Type of animal..................................................................................................................48
10.13 Person who could be liable.................................................................................................48
10.14 Type of behaviour- the contra naturam test..........................................................................48
10.15 Defences..........................................................................................................................49
10.16 Aviation............................................................................................................................49
10.17 Damage to telecommunication lines and call boxes.............................................................49
10.18 Genetically-modified organisms..........................................................................................49
10.19 Vicarious liability...............................................................................................................50
10.20 General rule and justification for vicarious liability................................................................50
10.21 Who qualifies as an employee?..........................................................................................50
10.22 An employment of akin-to-employment relationship must exist...............................................51
10.23 Employee of two employers................................................................................................51
10.24 Independent contractors.....................................................................................................51
10.25 Intentional wrongdoing......................................................................................................52

CHAPTER 11....................................................................................................................... 54
11.1 Infringement of bodily integrity..............................................................................................54
11.2 Assault ..............................................................................................................................54
11.3 Deprivation of personal freedom...........................................................................................54
11.4 Insult .................................................................................................................................55
11.5 Privacy................................................................................................................................55
11.6 Identity...............................................................................................................................56
11.7 Defamation.........................................................................................................................56
11.8 Who can sue for defamation?..............................................................................................56

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11.9 Elements of defamation.......................................................................................................56

11.10 The defence of reasonable publication...............................................................................59
11.11 Remedies..........................................................................................................................59
11.12 Retraction and apology......................................................................................................59
11.13 Interdict............................................................................................................................59

CHAPTER 12....................................................................................................................... 61
12.1 Damages............................................................................................................................61
12.2 Purpose of a damages award...............................................................................................61
12.3 Future loss and the once-and-for-all rule...............................................................................61
12.4 Once-and-for-all rule..........................................................................................................61
12.5 Apportionment between plaintiff and defendant.....................................................................62
12.6 The statutory provision ........................................................................................................62
12.7 How are damages apportioned?..........................................................................................62
12.8 Approach 1........................................................................................................................62
12.9 Approach 2........................................................................................................................62

REFERENCES....................................................................................................................... 64

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CHAPTER 1
1.1. The nature of the law of delict
The law of delict is primarily concerned with
the circumstances in which a person can claim
compensation from another for harm that has been
suffered.
The Romans classed it as part of the law of
obligations, because when a delict has been
committed, someone is obliged to compensate
another for the harm that has been suffered. So the
enquiry into whether or not a delict has occurred, is
in fact a loss-allocation exercise, the principles and
rules of which are set out in the law of delict.
1.2 Definitions of a delict
Definitions of a delict vary according to authors’
views of the legal framework governing the law of
delict. Consider the following definitions:
• A delict is understood to be wrongful and
culpable act that causes another harm or
infringes another’s personality interest. Within
this realm of the law of delict belong all the
rules that determine the private-law liability of
a person who has caused harm or a personality
infringement to another in a wrongful and
culpable way.
• Van der Merwe and Olivier regard fault as
an essential characteristic of delictual liability,
so that instances of no-fault liability (such as
liability for damage caused by animals and
the vicarious responsibility of a master for
the delicts of the servant) are in their view not
delictual, but arise ex variis causarum. For
the same reason an interdict (which can be
obtained without shoeing fault) does not seem
to them a delictual remedy. There seems to be
no warrant for this curtailment of the ambit of
delict.
• In general terms a delict can be defined as civil
wrong. A more narrow definition considers a
delict to be wrongful and blameworthy conduct
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Law of Delict Module
which causes harm to a person.
Although these authors define delict differently,
these extracts show that delict is part of civil law. (In
fact, together with the law of contract, it is one of the
central features of the law of obligations). It deals
with situations in which one person has wronged
another, and sets the rules for determining whether
the person whose interests have been infringed
should have a remedy against the wrongdoer or
another person in respect of the harm caused.
1.3 The functions of the law of delict
According to Cane, the functions of delict ‘are
those purposes or ends which peple seek to further
or achieve through tort law’. However, in isolating
these purposes, it is worth remembering that the
law is not static and that ideas may fluctuate over
time.
• Compensate for harm that has been suffered
or an interest that has been infringed
Compensating for harm is the primary, but not the
sole function of the law of delict. However, delict
is not a victim’s only source of compensation and
should not over estimate its ability to serve as a
compensatory mechanism. The system is ‘slow,
cumbersome and expensive’, and Markesinis and
Deakin suggest that delict claims represent only
around 25% of all compensation paid out in the
United Kingdom.
• Protect certain interests
Where activities take place in a common space and
sometimes compete with one another, social and
business interactions can give rise to tensions.
These are usually tolerated, but where interests are
impacted upon, the law offers protection, but only
where it is socially desirable to do so. The scope of
protected interests expanded to include:
Law of Delict Module
• Mental health in the form of pain and suffering
to relation to physical injury
• Metal health (psychiatric interests) generally
• Business interests, such as goodwill and
customer bases
• Interests that are purely economic
• Personality interests such as privacy and identity
However the law of delict is not an exclusive vehicle
for protecting victims’ interests. In some instances,
courts consider victims’ interests secondary to
the interests of defendants (for example, when
recognised defences such as self-defence or fair
comment are present). In other instances, society’s
interests prevails, for example, when courts deny
claims because there is a need to limit the scope of
delictual liability.
• Promote social order and cohesion
Delict promote social order and cohesion by
resolving particular types of disputes, ensuring
justice between the parties, keeping the peace
and preventing self-help. Initially, in Roman law,
where the law of delict was seen as a supplement
to criminal law, the purpose of delict was to buy off
a victim’s vengeance rather than to compensate.
• Educate and reinforce values
Delict is a complex mixture of principles of personal
responsibility for conduct and outcomes. So an
important aim of the law of delict is to articulate
a set of normative rules of behaviour, to provide
guidance to individuals on how they ought to
behave, and to express disapproval of certain types
of conduct. According to Linden, ‘the fundamental
goal is individual restraint and respect for one’s
fellow creatures, something which is required more
than ever in mass urban societies’. Also, now more
so than before, delict serves to uphold and vindicate
fundamental human rights.
• Provide socially acceptable compromises
between conflicting moral views
2
There are often a number of morally-acceptable
approaches to a particular issue, usually based on
different points of departure. One example is the
conflict between maintaining a person’s dignity and
freedom of expression. The issue in such instances
is not to prefer or to deny either of these moral
outcomes, but to resolve each particular conflict
by balancing these rights and freedoms in the
circumstances in a socially acceptable way.
• Deter the injurer from behaving similarly
in the future and to warn and deter others
from behaving in a similar way
While one of the functions of delict is to deter
people from behaving in a certain way, the extent
to which delict achieves this objective is open to
doubt. For example, people probably think more
carefully about what they say about others because
of the law of defamation, and the size of a damages
award, if publicised, might impact on the way others
behave. However, this would mainly be limited
to international conduct and some instances of
negligent conduct, such as negligent misstatements,
product liability or professional negligence.
• Reallocate and spread the losses
Reallocating losses from victim to injurer is a
generally accepted function of delict, but the idea
of loss-spreading is controversial. Cane argues
that delict is primarily a system designed to ensure
personal responsibility for one’s conduct. Delict
is not, he says, a social welfare system, although
he accepts that it partly serves to further ‘desirable
human and social goals’.
1.4 Essential elements of liability
based upon fault
The essential requirements for delictual liability can
therefore be stated as follows: harm sustained by
the plaintiff; conduct on the part of the defendant
which is wrongful; a causal connection between
the conduct and the plaintiff’s harm and fault or
blameworthiness on the part of the defendant.

This passage highlights the five core ‘umbrella’
elements of liability that one finds in delict
irrespective of the common-law action that
underpins a particular claim. However, in delving
deeper one finds that these concepts have been
modified to give expression to the purpose of each
particular action, and the nature of the interests that
they are designed to protect. These elements might
be expressed differently to suit the particular action,
but they are always there.
1.5 A systematic approach to
delictual problem solving
The element of delict are used as devices to balance
the various countervailing interests of plaintiffs,
defendants and society and to provide a systematic
approach for resolving delictual problems
Step 1: Identify the parties
The first step is to identify the possible plaintiffs and
possible defendants, and how they would be linked
to the action. Imagine that one is in an attorney’s
office. The client wishes to sue another person in
delict. The questions that the attorney should ask
include;
• Is the client there because of harm suffered
personally, or in a representative capacity (for
example being the breadwinner), or both?
• How many plaintiffs are possible, given the
particular set of facts?
• Who are the possible defendants?
• Who (or what, if an animal is involved)
committed the delict?
• Were others involved as well?
• Is there someone else (for example, an
employer or owner of an animal) who was not
involved in the actual commission of the delict,
but who could be held liable nonetheless? In
such instances, bear in mind the principles of
vicarious liability, and in the case of animals,
claims under the actio de pauperie or the actio
de pastu against the animal’s owner.
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Law of Delict Module
Step 2: Primarily fact-based decisions
• Harm: there can be no delict without some
legally-recognised harm being present, either
realised harm or, for an interdict, potential
harm. Focusing on the harm clarifies who
the plaintiff is and what he or she is seeking
compensation for. (There may of course be
more than one plaintiff). The nature of the harm
also determines the nature of the action to use
for seeking a remedy, and the wrongfulness
element and whether fault should take the
form of intention or negligence.
• Conduct: the conduct element identifies the
possible defendants and what they are supposed
to have done to infringe the plaintiff’s interests.
This identification also serves as a preliminary
step in isolating policy considerations relevant
to the wrongfulness enquiry.
Factual causation: there must be a link between the
plaintiff’s harm and the defendant’s conduct. There
cannot be an untargeted claim against someone
who was in no way involved in the situation.
Step 3: Primarily normative decisions
The following elements are more normative; in other
words, the enquiries are more value based and,
although centred within the factual matrix of each
particular case, articulate a wider societal policy
perspective on whether there should be liability.
These elements are not provided directly through
evidence. They amount to conclusions of law drawn
from the evidence that has been presented.
Step 4: Determining the remedy
In the same way as a criminal trial moves on to
the sentencing stage after conviction, a delictual
enquiry moves on to awarding the appropriate
remedy after determining liability in most instances,
the claim is for damages, the nature and amount
of which now have to be determined, but remedies
can also include an interdict or an apology.
Law of Delict Module
Step 5: Apportionment of damages
Where the remedy takes the form of damages,
a final step in the process might have to be
undertaken: that of apportioning the damages.
The issue here is whether the responsibility for the
plaintiff’s harm should shift to the defendant in its
entirety, or whether such responsibility ought to be
shared in some way.
In some instances, where there is contributory
negligence, fairness demands that the plaintiff
should remain responsible for at least a portion of
his or her loss, while in other instances, the loss
might be shared among two or more defendants.
It is only when this stage is finalised that the delictual
loss-allocation exercise is complete.
1.6 General principles modified for
specific actions
The lex Aquilia
• Harm or loss: Patrimonial loss, which is physical
damage to person or property, or loss that is
purely economic
• Conduct: Either a positive act, an omission, or
a statement
• Causation: Factual causation, in that the
conduct must have been a conditio sine qua
non of the los, and legal causation, in that the
link must not be too tenuous
• Fault: blameworthiness in the form of dolus
(intention) or culpa (negligence). However,
to be blameworthy, people have to be
accountable for their conduct
• Wrongfulness: Conduct that is objectively
unreasonable, or without lawful justification
(having a valid defence means that the conduct
is justified and the behaviour is not wrongful or
unlawful).
1.7 The Germanic remedy for pain
and suffering
• Harm or loss: Intangible harm associated with
4
personal injury to the plaintiff, for example,
actual pain, psychiatric injury, los of amenities
of life and loss of life expectancy
• Conduct: Either a positive act, an omission, or
a statement
• Causation: Factual causation, in that the
conduct must have been a conditio sine qua
non of the loss, and legal causation, in that the
link must not to be too tenuous
• Wrongfulness: Conduct that is objectively
unreasonable, or without lawful justification
(having a valid defence means that the conduct
is justified and the behaviour is not wrongful or
unlawful).
• Fault: blameworthiness in the form of dolus
(intention) or culpa (negligence). However,
to be blameworthy, people have to be
accountable for their conduct
1.8 The actio iniuriarum
Harm or loss: A violation of a personality interest,
usually classified under the headings of corpus
(bodily integrity), dignitas (dignity) and fama
(reputation)
• Conduct: Usually statements or positive
conduct, seldom an omission
• Causation: Normally not an issue, but
may become one in some instances, as in
deprivation of liberty cases
• Wrongfulness: Conduct that is objectively
unreasonable, or without lawful justification
(having a valid defence means that the conduct
is justified and the behaviour is not wrongful or
unlawful).
• Fault in the form of intention (animus
iniuriandi): this is a controversial element as
some contend that the action has developed
in the last century to include some instances
(such as those involving deprivation of liberty)
where liability is strict, and others (such as
defamation involving the media) where liability
is negligence based.

1.9 The actio de pauperie
The requirement for liability under the actio de
pauperie are:
• Pauperies (harm)
• Conduct on the part of a domesticated animal
• A causal link between the conduct and the
harm
• Unnatural conduct, termed contra naturam
sui generis, or conduct that stems from inward
excitement or vice (sponte feritate commota),
which amounts to a conclusion that society
considers the animal’s conduct to be actionable
• Ownership at the time of the injury
A member of defences are normally associated with
the action. These include:
• The plaintiff was to blame
• There was fault on the part of the third party
• There was fault on the part of the controller of
the animal
• The conduct on the part of another animal
• Vis maior, outside influence, or an extraneous
event not associated with the conduct of any
person
• Valenti non fit iniuria
• The plaintiff (or the injured animal) was not
lawfully at the place of injury.
1.10 The actio de pastu
The requirements for liability under the action de
pastu are:
• Harm in the form of damage to plants, crops
or pastures through the process of grazing
• Conduct in that a domesticated animal must
have trespassed on the plaintiff’s property and
grazed on the plants
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Law of Delict Module
• A causal link between the conduct and the
harm
• The animal must have acted of its own volition
• Ownership at the time of the damage
The defence include:
• The plaintiff was to blame
• Vis maior, outside influence, or an extraneous
event not associated with the conduct of any
person
• Volenti non fit iniuria
1.11 Vicarious liability
Vicarious liability arises where one person is
indirectly liable, without fault on his or her part,
for the delict of another. Accordingly, this form
of liability is strict, and arises in addition to any
personal liability that the wrongdoer incurs. Three
elements are usually required:
• A delict: Someone must have committed a
delict, in that the delictual elements set out
have been met.
• A relationship: a relationship between the
wrongdoer and the defendant, which the
law recognises as being of such a nature
as to warrant the imposition of liability.
This relationship is usually an employment
relationship, but can also include other
relationships that could be said to be akin to
that of employer and employee, for example,
mandate and partnership.
• Course and scope: The delictual conduct
must fall within the ambit of the defendant’s
instructions be for the defendant’s benefit, or
fall within the risk created by the defendant
when establishing the relationship with the
wrongdoer.
Law of Delict Module

EXERCISE
Discuss under which branch of law the law of Delict falls and outline the purpose of the Law
of Delict to the Namibian legal system. In your view are interests adequately protected by the
law ?Discuss (50)

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CHAPTER 2
2.1 HARM
2.2 Introduction
For a delict to arise, there must be some actual
or potential harm. By seeking a delictual remedy,
plaintiffs are seeking compensation or reparation
for damage to, or the loss or harm resulting from a
violation of their interests.
When seeking an interdict, plaintiffs wish to prevent
someone from threatening their interests. So the
harm element is the cornerstone of the law of delict
and the fundamental point of departure.
At the outset, therefore, one needs to determine
whether the plaintiff has an interest that the law of
delict protects and, if so, whether that interest has
been violated in a negative way.
On hearing that a person wishes to seek
compensation, one’s first reaction should be to ask,
‘What for?’ This question is important for it directs
one’s mind towards the appropriate delictual
action:
• If the harm is patrimonial, compensation will
follow only if the elements of the lex Aquilia
are present
• If one has experienced pain and suffering, the
elements of the Germanic remedy must be met
• For a violation of personality interest, the
elements of the actio iniuriarum must be
satisfied.
2.3 Patrimonial and non-patrimonial
harm
It is important to establish that the plaintiff’s harm
also constitutes actionable harm. In the law of
delict, harm falls into one of two broad categories:
patrimonial harm and non-patrimonial harm. The
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Law of Delict Module
latter is further divided into two categories: pain and
suffering and infringement of personality interests.
In short, patrimonial harm is harm that arises when
a person’s patrimony is affected in a negative way.
The concept of patrimony, or financial estate,
is associated with what the Romans called the
universitas which includes not only a person’s
current assets and liabilities, but also financial
aspects associated with rights and obligations that
might arise in the future. To ascertain whether there
has been harm, one must consider the value of the
plaintiff’s estate as a whole prior to the incident
that precipitated the claim, and compare it to the
plaintiff’s estate after the event.
Patrimonial harm falls into three broad categories:
• Financial loss associated with personal injury
• Financial loss associated with damage to
property
• Financial loss that is not associated with
personal injury or damage to property and is
accordingly purely economic.
2.4 Pain and suffering
Pain and suffering is a term of art. It consists of
two concepts: pain and suffering in a more literal
sense, and loss of amenities of life. This category of
harm must be linked to some physical injury to the
plaintiff.
A plaintiff cannot claim pain and suffering for
the pain experienced by seeing harm caused to
someone or something else, for example, seeing
one’s child lying in a coma or one’s beloved pet
being put out of its misery. This harm and the
remedial action associated with physical injury to
the plaintiff, and not someone else.
Law of Delict Module
The first component, pain and suffering, relates to
pain that has been experienced and pain that will
continue to be experienced in the future. It has to be
experienced subjectively. If a person has not felt any
pain, he or she has not suffered any harm, and also
cannot claim future pain that might be experienced
in the absence of existing pain.
However, pain and suffering is not limited to physical
pain alone. This concept includes nervous shock,
psychological harm, mental anguish or distress,
and also the fear, anxiety or trauma associated
with the injury or situation. These, too, must be
experienced subjectively.
2.5 Infringement of a personality
interest
Personality interests are traditionally associated
with being human, and until the 1980s one could
safely say that artificial or juristic persons, such
as companies and universities, had no rights of
personality. However, towards the end of the 20th
century, a trend emerged recognising that juristic
persons could also have personality rights, albeit
in a less extensive way than natural persons.
When the Bill or rights was adopted, this situation
was confirmed. Artificial persons therefore have
(artificial) personality rights insofar as they are able
to have such rights. This simply means that juristic
persons cannot have the more subjective personality
rights that are associated with a person’s physical
existence, or with human feelings, but they can
have the more objective personality interests, such
as privacy or reputation.
2.6 Bodily integrity
Bodily integrity is normally violated by an assault or
deprivation of liberty, such as arrest or imprisonment,
but seduction also falls into this category. Neethling,
Potgieter and Visser note that a right to corpus also
includes psychological integrity and so the corpus
violation occurs when a person suffers a psychiatric
injury or nervous shock. A violation of bodily
integrity may, but not necessarily, also be insulting
8
and therefore also an infringement of dignity.
2.7 Dignity
Dignity is a complex concept. The first point to
clarify is its scope. At one stage, and sometimes
still now, dignity was used both in a narrow
sense, denoting self-esteem, and in an umbrella
sense, covering a variety of associated personality
interests. To violate a plaintiff’s self-esteem (dignity
in the narrow sense), a defendant’s behaviour must
have had some degrading or insulting effect _ what
the Romans called contumelia – for otherwise the
plaintiff’s feelings would not have been wounded.
The insult must be established as a fact, and it is
sufficient to show that the plaintiff subjectively felt
insulted by the defendant’s behaviour. The test,
therefore, is subjectively and focuses on what the
plaintiff actually experienced. From this one can see
that a juristic person, such as a company, would not
be capable and so cannot suffer contumelia.
2.8 Privacy
The development of the law of privacy illustrates the
tension that arises between a system that seeks to
develop within the constraints set by its roofs and
precedent, and one that wishes to develop outside
those historical parameters. The right to privacy was
not specifically recognised in the actio iniuriarum,
and so any attempt to protect a person’s privacy
had to be located within the dignity concept. Even
towards the end of the 20th century one finds, for
example, the Appellate Division declaring: ‘The
actio iniuriarum protects a person’s dignitas and
dignitas embraces privacy.
2.9 Reputation
The last right that falls within the original trilogy of
personality rights, reputation, is violated when one
person lowers the public esteem in which another is
held. For this interest to be violated, there must have
been some publication of the defamatory material to
someone other than the plaintiff and the defendant.
As a result of what is said or done, a person, or
 Law of Delict Module

people, would now think less of the plaintiff than
previously. Naturally, for a person’s public esteem to
be violated, others must become aware of what was
said or done, so publication of defamatory material
is the core aspect of any violation of reputation. The
effect of such publication must be that it lowers a
person’s esteem in the estimation of right-thinking
persons generally. Examples include:
• Imputations against moral character
• Imputations that arouse hatred, contempt and
ridicule
• Impairments that cause shunning and avoiding
• Impairments of professional or business
reputation.
2.10 Personality rights and
constitutional rights
The second point that requires clarification (the first
point was the scope of the dignity concept) relates to
the relationship between the common-law concept
of dignity and dignity as set out in the Constitution.
Note that the Constitution recognises the rights to
dignity and privacy, but not the right to reputation.
Also, the right to identity is not pertinently
recognised either separately in the Bill of Rights, or
as part of the right to dignity. So at face value, the
common-law concepts do not correspond with their
constitutional equivalents and some reconciliation
needs to be made.

EXERCISE
In the law of Delict harm has a broad definition and does not only include physical injury to
another. Discuss harm as an element of Delict and in your discussion distinguish between
patrimonial and non-patrimonial harm. In your answer refer to case law. (50)

9
Law of Delict Module

CHAPTER 3

3.1 Conduct

3.2 Introduction 3.3 Human Conduct

• In the same way that there cannot be a delict
without harm being present, there cannot be a
delict unless one can link the harm suffered to
the conduct of a person, or the behaviour of
an animal.
• It is this conduct or behaviour that sees the
delictual sequence of events and consequences
in motion.
• As a general rule, delictual liability is based on
voluntary human conduct, and this is certainly
true for any liability based upon fault and some
instances of strict liability. However, damage
claims based on animal behaviour should fall
within the concept of delict, but as we describe
below, liability in such instances rests on
different principle.
The conduct that forms the subject of a delictual
enquiry is, as a rule, that of a human being and
usually, defendants are natural persons. However,
juristic persons (for example, a company or a
university) may also be sued in delict.
In such instances, it is the conduct of the juristic
person’s office bearers or organs, and so, for
example, a decision of a board of directors becomes
a decision of the company.
Human conduct will also be present where objects
or animals are used as instruments to cause harm,
for example, where a person uses a knife to stab
someone, or where a defendant incites a dog to
bite the plaintiff.

The conduct element requires some overt behaviour.

Mere thoughts, without being manifested in some
way, cannot create delictual consequences. The
overt behaviour that could constitute and satisfy the
conduct element include:
• A positive physical act, such as driving
your vehicle into a neighbour’s wall, or
manufacturing a product, or enticing a rival’s
staff to join your business (a commission)
• A positive statement or comment, such as
writing a letter, or ,making a statement or
comment (also a commission)
• A failure to do or say something, such as
merely looking on while a person is l without
attempting a rescue, failing to repair potholes
in a road or to institute safety measures where
there are required, or failing to warn someone
of the harmful effects of, for example, a table
(an omission)
3.4 Voluntary conduct and the
defence of automatism
The conduct must be voluntary, that is, subject to the
actor’s will and control. This implies that the person
should have the ability to direct muscular activity
or to prevent such activity. In most definitions of
voluntary conduct, the particular act or omission is
referred to as being ‘subject’ or ‘susceptible’ to the
conduct refers to the extent to which the defendant
can make a decision to act or refrain from acting.
The term voluntary, as it is used in this context, has
a special and restricted meaning to determine the
ability in the law to act. It does not necessarily
correspond to a recognised psychological condition
and the term does not refer to what the defendant
intended to should responsibly have done.

10

The defence if automatism occurs when a defendant
asserts that he or she behaved involuntarily
or mechanically, or lacked the capacity to act
voluntarily. Such incapacity is usually linked to
a known physical or mental condition that can
render a person unable to direct muscular activity,
but involuntarily conduct may result from other
instances as well.
Conduct will not be voluntary in the following
instances:
• Compulsion (vis absoluta or absolute force):
Snyman cites the example of when someone is
slicing on orange with a knife and a stronger
person grabs the hand holding the knife and
forces the knife into the chest of someone else.
In such circumstances, we cannot say that the
person who was slicing the orange acted in
stabbing the third person.
• Reflex muscular movements: A person who
damages an article during a sneezing fit, or
who kicks over an expensive vase when taped
with a ruler on the knee, causing it to jerk
upwards, does not act voluntarily.
• Unconscious state: Included in this category
is conduct occurring during sleep, an epileptic
fit, extreme intoxication or extreme emotional
state.
The defence will not succeed in the following
instances:
• Impulsive or spontaneous acts: These are not
purely reflexive acts and are therefore regarded
as voluntary. For example, where a driver loses
control of a vehicle when reacting to bee sting
or to a burning match falling into his lap.
• Intentional prior conduct: If the state of
automatism is deliberately induced to cause
harm to another ( ction in libera causa), for
example, where a person deliberately gets
drunk to work up courage to assault another
person.
11
Law of Delict Module
3.5 Commission and omission
As pointed out earlier, a positive act is called
a commission, while a failure to act is called an
omission. It is not always easy to distinguish between
commission and omissions, especially where the
activity is continues. So, the same conduct might
at the same time constitute both a positive act and
an omission. The following examples indicate this
overlap and the difficulty it poses:
• Failing to stop sign and colliding with an
oncoming vehicle constitutes positive conduct
(the act of driving), but some people might
also think that it is an omission (failing to stop).
• Where a women asks a policeman to take
her home and the policeman instead takes
her to a secluded place and rapes her. The
act of rape constitutes a positive conduct,
but the policeman’s failure to comply with
his duty to protect citizens amounts to an
omission. In this instance, we have two entirely
separate situations, and the failure to protect
cannot amount to an expression of deficient
(overlapping) positive conduct. It involves an
entirely separate obligation.
3.6 Animal behaviour
A delict can also involve animals causing harm
without human conduct being involved. For
example, a pig owner may also be liable if the
animals stray onto neighbouring land and destroy
crops belonging to a neighbour (action de pastu),
or a dog owner may be liable if the dog bites a
passer-by (action de pauperie). In these cases, the
dog owner’s liability is based on a legal relationship
concerning the animal (ownership) and not on
human conduct. Liability for the event that caused
harm is transferred, or imputed, to the owner. This
situation is analogous to vicarious liability, where
liability for the delict of an employee is transferred,
or imputed, to the employer.
Law of Delict Module

EXERCISE
One of the elements of delict is Conduct. Study the following scenarios and indicate whether
the element of conduct is present or not.

1. John was walking to school on a Wednesday morning. When he walked past his neighbour
Mr Samson’s house, Mr Samson’s bulldog jumped over the fence and bit John on his left
leg.

2. Sipho is a shop owner along Elf Street. He sales smart phones and computers. Along the
same street there is another shop owned by Hassim an illegal immigrant who sales the
same merchandise. Sipho believes that Hassim steals his customers and is also not happy
about the fact that Hassim’s phones are cheaper than his. He hatches a plan of burning
Hassim’s shop and executes it at night.

12
 Law of Delict Module

CHAPTER 4

4.1 CAUSATION
4.2 Introduction • Is the factual link strong enough?
• Is the harm sufficiently closely connected to
To find a defendant delictually liable, there has to the conduct?
be a causal connection between the harm that the • Should the law confirm that defendant
plaintiff suffered and the defendant’s conduct. In caused the harm, or should liability be
other words, the defendant’s conduct must have limited?
caused the plaintiff’s harm or loss. Without a causal
connection between the harm and the defendant’s
4.3 Determining factual causation
conduct, there can be no delict.
and the conditio sine qua non test
A conclusion as to whether a causal link exists
In South African courts, the main tool for
between the wrongdoer’s conduct and the harm is
determining factual causation is the conditio sine
drawn from the facts, the evidence before the court,
qua non theory (or ‘but-for’ test). According to this
and the relevant probabilities in the circumstances.
test, the defendant’s conduct must have been a
The important question for purposes of this chapter
necessary condition (a condition sine qua non) for
is the approach to and the manner in which one
the plaintiff’s harm to occur.
should draw this conclusion. In other words, what is
the test for factual causation? This enquiry consists
The basis of the condition sine qua non test is that
of two parts, which was expressed in Minister of
every event is the result of many conditions or factors
police v Skosana in the terms.
that are jointly sufficient to produce (or cause) that
event. Therefore, the defendant’s conduct can
This two-fold enquiry represents the two fundamental
have caused the harmful consequence only if it was
components of the element of causation: factual
a necessary condition (condition sine qua non) for
causation and legal causation.
that consequence to occur.

The two-fold enquiry

1. Factual causation requires a factual enquiry.
This enquiry entails the following:
• Did the defendant’s wrongful conduct
cause, or materially contribute to, the harm
sustained by the plaintiff (Minister of Police
v Skosana)?
• If the answer is no, the defendant is not
liable and the is no delict.
• If the answer is yes, move to the second
question/component.
2. Legal causation entails a juridical enquiry
where legal policy and other normative issues
play a role. The enquiry entails the following:
To determine this, the so-called ‘but-for’ test is used
as a tool for inferential reasoning: a defendant’s
conduct (either an act or an omission) is a
necessary condition of the plaintiff’s loss if, but for
the particular conduct, the harmful consequence of
probabilities that the defendant’s conduct in fact
caused the harm.
4.4 Critique of the conditio sine qua
non test
Although courts use the conditio sine qua non test to
determine factual causation, the test is not perfect.
These are three main points of critique:
1. The process of reasoning - determining a

13
Law of Delict Module

hypothetical result by eliminating or substituting In Foury ay Haulage SA (Pty) Ltd v SA National

conduct – is clumsy and circuitous. Roads Agency Ltd the Court recognised the control
2. The test provides no answer where there are function that the legal causation element plays and
multiple causes. also that the policy decision in this regard is not the
same as that in respect of the wrongfulness.
3. The conditio sine qua non is not a true test for
determining factual causation because it is
International Shipping Co (Pty) Ltd v Bentley
merely a way of expressing a causal link that
has already been determined.
The responded was the appointed auditor of the
Deals group of companies. International Shipping
To hold a defendant delictually liable, there has to be
carried out off the business of financiers and
a causal link between the defendant’s conduct and
shippers. Early in 1976, International Shipping
the harm that the plaintiff suffered. The causation
agreed to make certain financial facilities available
element consists of two components: factual
to the Deals group. In March 1979 Bentley issued
causation and legal causation. The primary test
group financial statements as well as reports in
for factual causation is the ‘but-for’ or the conditio
respect of each of the companies in the Deals
sine qua non test. However, as was explained in
Group.
International Shipping Co (Pty) Ltd v Bentley,

These reports were not qualified. Also, Bentley

…demonstration that the wrongful act was a causa
stated that he had examined the financial statements
sine qua non of the loss does not necessarily result
and they fairly represented the financial position of
in legal liability. The second enquiry then arises, vis
the group as at 20 December 1978. International
whether the wrongful act is linked sufficiently closely
Shipping continued to provide financial facilities
or directly to the loss of legal liability to ensue or
until April 1981, when the Deals Group was
whether, as it is said, the loss is too remote. This
liquidated. International Shipping at this stage was
is basically a juridical problem in the solution of
owed R977 318, but managed to recover R593
which considerations of policy may play a part.
826. This left the company with a loss of R383
This is sometimes called ‘legal causation’.
492.
A factual link between the defendant’s conduct and
International Shipping then proceeded to claim
the harm is therefore not enough to establish liability.
damages from Bentley on the basis that the
No legal system will hold people responsible for all
financial statements he had prepared were
harmful consequences of their conduct. This would
materially false and misleading in a number of
not be fair and just.
respects. International Shipping alleged that had
the 1978 fairly presented to the financial position of
A person is liable only for the consequences that
the Deals Group, its constituent companies and the
are closely linked to his or her conduct, either
results of their operations, International Shipping
directly or sufficiently closely and this is where legal
would have terminated the facilities on receiving
causation, the second component of the causation
those statements.
enquiry, play a role.

It furthermore would have the Deals Group to make

Since the focus of the legal causation enquiry
good its indebtedness to International Shipping.
is on whether liability should arise, the part of
International Shipping contended that the loss it has
the causation enquiry is a normative one, often
sustained was consequence of Bentley’s conduct
involving the weighing up of different factors and
and that Bentley had to make good its loss.
policy consideration.

14

The Appellate Division found that there was conduct,
and that the conduct had been both wrongful and
negligent. The Court also found that the conduct
was a conditio sine qua non for the loss suffered.
The question that remained was whether the factual
connection between the conduct and the harm was
sufficiently close for the Court to attribute liability to
Bentley. The court held that there were a number of
factors that indicated that although the conduct was
a sine qua non of the harm, he harm could not be
imputed to Bentley. Some of its reasons included:
• Two years had elapsed between the
respondent’s financial reports and the loss.
• International Shipping had decided to provide
a support programme for the Deals Group at
a stage when it knew that the Group’s financial
situation was fairly bleak.
• International Shipping had allowed the
Deals Group’s indebtedness to escalate in a
uncontrolled way.
• The relationship between International Shipping
and the Group had changed in the meantime.
International Shipping had become involved
in the Group’s administration and had greater
insight into the Group’s financial situation.
• An executive of Deals Group had deceived
International Shipping, but International
Shipping must have been aware of, or at least
suspected, his dishonesty.
• When drafting the financial statements, Bentley
could not have foreseen that International
Shipping would enter into a support
programme.
4.5 General test – The ‘flexible
approach’
For many years courts used a number of tests to
determine whether the harm that results factually
from the wrongful conduct should be imputed to
the perpetrator. These tests include:
• The direct consequences test
• The reasonable foreseeability test
• The novus actus interveniens concept
15
Law of Delict Module
• The adequate cause test
At first the direct consequences test, and later the
foreseeability test, were favoured. However, as
courts began to express ideas about the normative
nature of legal causation decisions and the policy
considerations upon which the decisions are based,
other tests emerged. The criminal case of S v
Daniels illustrates this point clearly.
Two perpetrators were charged with murder.
Perpetrator I had fired two shots into the victim’s
back, after which perpetrator 2 fired one shot to the
victim’s head. An autopsy revealed that is was the
head wound that killed the victim, but that she shots
fired in the victim’s back would have been fatal if
they had not received immediate medical attention.
The Court accepted that even if the victim had not
been shot in the head, he still would have died from
the shots in his back. The question that arose was
which shot(s) had caused the deceased’s death.
4.6 Subsidiary tests
Prior to the Appellate Division’s adaptation of
the flexible test, courts used a number of tests to
determine legal causation. There were two main
tests that they used: at first the direct consequences
test, and later the test of reasonable foreseeability.
This section describes some of the tests that have
been used in the past.
4.7 Direct consequences
The direct consequences theory, also known as the
‘proximate cause’ test, originated in the English case
of In re Polemis and Furness, Withy & Co Ltd and
dominated for about four decades. In the Polemis
case the defendant had hired a ship. Prior to this
contract, petrol had leaked into the ship’s hold,
producing petrol fumes. One of the defendants’
employees dropped a plank into the hold, causing
a spark, which in turn started a fire that completely
destroyed the ship. Defendants argued that they
could be held liable because the damage that
resulted could not have been foreseen. The Court
rejected this argument and held:
Law of Delict Module
If the act would or might probably cause damage,
the fact that the damage in in fact causes is not
the exact kind of damage one would expect is
immaterial, so long as the damage is in fact
caused sufficiently directly by the negligent act
and not by the operation of independent causes
having no connection with the neglect act, except
that they could not avoid its results. Once the act
is negligent, the fact that its operation was not
foreseen is immaterial.
According to this approach, persons are reliable
for all direct consequences of their conduct if they
should have reasonably foreseen that their conduct
would have caused harm of some kind to the
plaintiff.
4.8 Reasonable foreseeability
• According to the foreseeability approach,
the question is whether the defended should
reasonably have foreseen the consequences
that resulted from his or her conduct. If the
answer is `yes` liability results.
• The test was first used in English Law when
the Privy Counc il, in Overseas test was first
used in English Law when the Privy Council,
in Overseas test was first used in English
Law when the Privy Council, in Overseas test
was first used in English Law when the Privy
Council, in Overseas Tankship (UK) Ltd v Morts
and Docks Engineering Co Ltd (The Wagon
Mound1), rejected the Polemis test on the basis
that the direct consequences approach could
be unduly harsh on the defended in that case.
Workmen, who are who are employees of the
defendant’s company, had negligently allowed
furnace oil to spill into Sydney harbour.
• The oil spillage thickly coated the water and
drifted underneath the wharf. Some hot metal
fell into the water and onto some cotton waste
in the water. This ignited the oil and started
a fire that damaged the wharf and some
equipment.
16
4.9 Adequate cause
The adequate causation test originated in The
Netherlands and in Germany. In this approach,
a consequence is imputed to a defendant if it is
adequately connected to his or her conduct.
4.10 Intent
Boberg, in line with a commonly-held belief,
contends that `intended consequences, strangely
as they may come about, can never be to remove`.
While we can agree with this view in most instances,
intention cannot be the determining limiting factor in
all cases where intended consequences arise. The
question is in each case is still a normative one, and
one should ask whether the link between conduct
and the intended consequences is sufficiently strong
for liability to arise.
4.11 Novus actus interveniens
A novus actus interveniens is `an independent,
unconnected and extraneous factoe or event that
is not foreseeable and which actively contributes
to the occurrence of harm after the defendant’s
original harm has occurred.
The presence of such an intervening cause breaks
the casual link between the perpetrator’s conduct
and the ensuing harm. To determine this, courts
now apply the flexible test for legal causation. The
intervening event could be the conduct of the victim,
the conduct of another person, or it could be due
to other factors.
In Mafesa v Parity Versekeringsmaatkappy Bkp (In
Likwidasie) the plaintiff was involved in a motor
vehicle accident and suffered a fractured leg. He
underwent surgery to insert a steel plate. When the
bone had set sufficiently, the plaintiff was discharged
and given crutches to help him walk. His leg was
still in a cast and he was told not to put unnecessary
weight on it. While walking on a smooth floor, the
plaintiff slipped and fell because the crutches did
not have rubber tips.
 Law of Delict Module

EXERCISE
1 Discuss the following concept of novac actus interveniens (15)

2. Read the following scenarios and identify the form of causation that is present in each.
a) Bongani was driving from Ongwediva to Windhoek. After driving for about 6 hours
he decided to take a break and quench his thirst by driving a few beers .He then
proceeded with his journey. Along the way he continued to drink beer. Just before he
reached Okahandja, Bongani was involved in a head on collision with another car and
the driver of the car, Ipinge, sustained serious injuries. The police report indicated that
Bongani’s alcohol level exceeded the permitted limit and that the collision was solely his
fault. Ipinge was taken to hospital and admitted for 2 weeks. Upon discharge he was
advised that it was important for him to dress his wounds properly. Ipinge failed to dress
his wounds and developed an infection. His leg was later amputated. What kind of
causation exist between Ipinge’s amputation and the collision caused by Bongani? (25)
b) Ndinelao is cleaner and works for Siyakhuphula cleaning company. On a Sunday
morning she was assigned a task of cleaning the floors of Spectra Mall. While she was
performing this task Ndinelao omitted to put a “wet floor” sign on the floor she was
working on. Anele who was wearing high heeled shoes fell and broke her leg. What
kind of causation exists between Ndinelao’s conduct and Anele’s broken leg? (25)

17
Law of Delict Module
CHAPTER 5
5.1 FAULT
5.2 Introduction
To establish delictual liability, it is not enough to
show that the harm was caused wrongfully. One
must also show that the defendant was at fault.
The fault element has two components: (a) the
person must have been accountable at the time of
causing the harm (i.e. the person must have had
the capacity to be at fault), and (b) the person must
have culpable or blameworthy (i.e. the person must
have acted either intentionally or negligently).
So in this chapter, we first consider the issue of a
person’s legal capacity to be at fault and we set
out the requirements for establishing a person’s
accountability. Thereafter we discuss the nature of
intention and negligence and requirements that
need to be met before a person can be said to be
culpable.
Accountability focuses on a person’s ability and
maturity; culpability focuses on a person’s mind-
set or conduct. So in a sense, these concepts have
a subjective aspect to them. In the next sections,
we describe how accountability and intention are
entirely subjective in that one must investigate the
ability and maturity (accountability) and/or the
state of mind (intention) of the particular individual
in question, and how negligence involves a more
objective assessment, in that one measures the
individual’s conduct against the standard set by
society.
However, negligence also has subjective elements,
because one assesses the situation by placing the
reasonable person in the position of the defendant
and by considering the specific circumstances at the
time.
18
5.3 Accountability
Accountability is a prerequisite for finding a person
blameworthy, or at fault. The concept refers to a
person’s capacity to distinguish between right and
wrong, and then to act in accordance with that
distinction. If a person is not legally accountable,
one cannot impute blame, and the element of
fault is not satisfied. Culpability refers to the law’s
judgment of an accountable person’s state of
mind (intention), or of the inadequate quality of
a person’s conduct as measured against society’s
standards (negligence).
To assess whether the defendant is accountable,
one must have an affirmative answer to two
questions. Did the defendant, at the time the delict
was committed:
1. Have the mental capacity to distinguish
between right and wrong, and appreciate the
difference?
2. Have sufficient maturity to act in accordance
with the appreciation of a distinction between
right and wrong?
There is a general presumption that persons (natural
and juristic) are accountable, or culpae capax, for
harm that they have wrongfully caused. However
the law does recognise certain personal attributes or
circumstances that will either exclude accountability,
or negate the presumption of accountability.
There is no closed list, but the following are
recognised categories where persons could be
found to lack accountability, or the capacity to be
at fault:
• Youth

• Mental illness
• Intoxication or a similar condition introduced
by a drug
• Anger due to provocation
5.4 Youth
There are three categories where youth may exclude
accountability:
1. Children who are younger than seven years
(infantes): children in this category are
irrebuttably presumed to be culpae incapax
or `without legal capacity`. Thus, irrespective
of the child’s actual mental capacity, children
under seven years of age always lack legal
accountability.
2. Children between the ages of seven and
fourteen: In these instances, there is a
rebuttable presumption that a child over the
age of seven, but under the age of fourteen is
culpae incapax. Thus, unless proven otherwise
in any particular case, children in this category
are regarded as incapable of being blamed.
3. Children between fourteen and eighteen years
of age: Children in this category are presumed
to be culpae capax. In other words, unless
proven otherwise, children in this category
are legally accountable and reliable for their
wrongful conduct.
5.5 Mental disease or illness and
emotional distress
A wrongdoer is culpae incapax if, at the time of the
alleged delict, he or she suffers from any mental
illness or disease, or emotional distress that renders
him or her incapable of distinguishing between
right and wrong. On S v Campher the Appellate
Division confirmed that not only must a person have
failed to control the impulse to commit the act in
issue, but the lack of control must have arisen from
19
Law of Delict Module
‘infirmity of will for which he was not answerable’.
5.6 Intoxication
Intoxication, whether while under the influence
of alcohol or drugs, may render a person culpae
incapax. However, this is not true in all cases. For
example, if a person takes an intoxicating substance
before committing the delict, when still accountable,
he or she may be liable for the prior act.
The basis for liability here is similar to the situation
where an epileptic person, who knows that fits can
suddenly occur, still drives a vehicle and causes
an accident while having a fit. Even though
at the moment of the accident the person is not
accountable for the harmful result, liability still
arises.
Therefore although a defendant may not have
been able to appreciate that harmful nature of the
conduct at the time of the harm was inflicted, a
court might still hold the defendant liable.
5.7 Provocation
Provocation may, in some instance, exclude the
element of wrongfulness. However, in circumstances
where it does not do so, it may, depending upon its
effect on the defendant’s behaviour, exclude either
accountability or fault in the form of intention. In
other words, a person can be provoked to such
an extent that the person loses control of his
ability to act responsibly or, if the provocation is
not that extreme, to the extent that a person lacks
consciousness of the wrongfulness of his actions.
In effect, the rage reaction creates a moment of
temporary insanity not unlike that which occurred
in S v Campher, noted previously. The basis for this
defence is that loss of temper due to provocation
may render the provoked person culpae incapax at
the time of inflicting harm.
Law of Delict Module
5.8 Intention
A person will be at fault when he or she intends
to cause another person harm, knowing that it is
wrong to do so. So when a court concludes that a
defendant had intention, if demonstrates the law’s
disapproval of a defendant’s reprehensible state of
mind.
The enquiry into intention is subjective in that courts
have to determine what the defendant actually had
in mind at the time of committing the delict.
There are principally three forms of intention:
• Dolus directus
• Dolus indirectus
• Dolus eventualis
5.9 Dolus directus or direct intention
Direct intention exists where the wrongdoer’s primary
aim is to achieve a particular consequence, for
example, if one person deliberately says something
in order to hurt another person’s feelings. It is
irrelevant whether the wrongdoer simply foresaw the
desired outcome as a possibility or as a certainty.
The fact that the wrongdoer desired a certain
consequence and acted in a way to realise that
consequence is enough to establish direct intention.
It also does not matter whether the result is achieved
in the exact manner foreseen or contemplated by
the wrongdoer.
5.10 Dolus indirectus or indirect
intention
Indirect intention exists where a person has
direct intention in terms of certain consequence
(consequence A). However, in effecting consequence
A, a person foresees that another harmful
consequence (consequence B) will inevitably also
take place if consequence A is to be realised.
For example, Sam wishes to steal a car radio from
a locked car, and he realises and accepts that he
20
will also have to break the window or damage the
car in some way to get the radio. The damage
to the car is not his main objective, but it is an
inevitable consequence if he wants to execute his
main objective, that is, to steal the car radio. The
owner of the car will thus be able to sue Sam for
damages to the car by relying of dolus indirectus as
form of fault.
5.11 Dolus eventualis or intention
be acceptable of foreseen result
Dolus eventualis exists where, in a plan to cause
harm, a person foresees a wrongful consequence
that is not desired, but nevertheless reconciles
himself or herself with the possibility that it might
arise and continues to execute the plan to cause
harm. For example, Sam aims a large stone at
Bheki, who is with two friends.
Sam foresees that he might hit one of the friends
instead, but hesam nevertheless proceeds to throw
the stone at Bheki. He misses, and the stone hits
and injures one of the friends. Dolus eventualis
is present since is present since Sam subjectively
foresaw that he might injure someone else, and
reconciled himself with the fact that one of Bheki’s
friends might get hurt. Dolus eventualis thus entails
a two-fold enquiry:
1. Did the wrongdoer (Sam) subjectively foresee
or realise that another harmful consequence
might ensue?
2. Did Sam reconcile himself with that realisation
be nevertheless continuing with his actions?
5.12 Defences that exclude intention
Once a plaintiff has proved intention, the defendant
(who a court has found to be accountable) can
raise various defences to escape liability. Defences
that exclude intention can be aimed at any one or
both of the elements for intention. In other words,
the defences can be used to:
• Indicate that the defendant did not direct his
or her will towards effecting the harm-causing

event
• Indicate that the defendant did not know that
his or her conduct was wrongful
• Indicate that the defendant neither directed his
or her will towards effecting the harm-causing
event, nor knew that the conduct was wrongful.
5.13 Mistake
Intention involves subjectively evaluating the
defendant’s state of mind when the delict is
committed. Therefore. A bona fide mistake
regarding any aspect of the case, including the
lawfulness of a person’s actions, will exclude
intention.
The defence of mistake often turns on the
absence of the second element of intention, the
consciousness of wrongfulness. However, mistake
may also negate the direction of a person’s will, for
example, accidently pressing a button that sends
a defamatory email message. In principle, it does
not matter whether the mistake is one of fact or one
of law, or whether it is reasonable or unreasonable.
The subjective nature of the test for intention simply
requires that in the mind of the wrongdoer, there
was genuine belief that the conduct at issue was
indeed lawful. However, when media defendants
are sued for defamation or infringements of privacy,
only reasonable mistakes can rebut the presumption
in intention.
5.14 Jest
The basis of jest as a defence is usually that the
defendant’s will was not directed at achieving the
particular consequence that ensued, but it may also
exclude consciousness of wrongfulness. However,
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the defendant must be able to show that the conduct
was bona fide and genuinely meant as a joke.
5.15 Intoxication
In exceptional instances, people may be so
intoxicated that they cannot develop an intention.
Intoxication is generally used as a ground to
exclude accountability. However, a person can also
use it to exclude either one of the two elements of
intention in cases where a court finds a defendant
accountable.
In Chretien’s case the Court found that when
persons are so drunk that they cannot properly
direct their will, or they do not realise that their
conduct is wrongful, there is no intention on their
part. Of course, it would still be possible to find
that they have acted negligently and base liability
as a form of fault.
5.16 Provocation
A person can raise provocation as defence to
exclude intention. Although a provoked person
may still have directed his or her will to injure the
person doing the provoking courts can exclude
intention where the provoked person did not realise
that his or her conduct was wrongful.
5.17 Emotional distress
In certain instances people can suffer from such
severe emotional distress that they cannot develop
an intention. While a person can generally
use emotional distress as ground to exclude
accountability, a person can also use it to exclude
either one of the two elements of intention in cases
where a court finds a defendant accountable.
Law of Delict Module

EXERCISE
Discuss accountability as an element of Delict.Discuss different classes of persons that lack
accountability

Read the following scenarios and identify the form of dolus present

a) Rose does not like the fact that Titus broke up with her. She is angry and hurt and plots
to stab Titus. She successfully executes her plan.(25)

b) Abso belongs to TIPO political party which is a rival to LIPO party. Abso does not like
Simon the leader of LIPO. He plans to assassinate him. While Simon is addressing
people at a conference Abso plans to kill him.He knows that Simon is addressing a large
group of people and reconciles himself with the fact that if he tries to kill Simon, other
people might die as well. He nevertheless fires a gun towards Simon and a lot of people
are injured (25)

22

CHAPTER 6
6.1 NEGLIGENCE
• Unlike intention as a form of fault, negligence
in not concerned with the law’s disapproval of
a defendant’s state of mind. With negligence,
liability is based on the law’s disapproval of a
defendant’s conduct.
• The following sections discuss the concept of
negligence, the test for negligence and the
various circumstances and attributes that play
a role in establishing the standard of care that
the law expects of persons.
6.2 The concept of negligence
An enquiry into negligence involves evaluating a
defendant’s conduct according to a standard that
is acceptable to society. This standard is expressed
with reference to a fictitious ‘reasonable person’
that represents society’s expectations of adequate
and reasonable conduct.
In other words, it represents an objective standard
that all legal subjects must adhere to by paying
sufficient attention to ensure that their conduct is
in line with the standard of care that the society
expects.
The test for negligence differs from the test for
wrongfulness, in that the reasonable person is
placed in the position of the defendant. Therefore,
we do not evaluate all the circumstances (both
known and unknown to the defendant) of the harm-
causing conduct as is done in the wrongfulness
enquiry.
To determine whether a defendant was negligent,
we simply ask what the reasonable person, put in the
same position as the defendant, would have done.
If the defendant’s conduct does not conform to
the standard of a reasonable person, the conduct
is blameworthy in law and the defendant will be
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Law of Delict Module
considered to be at fault.
6.3 Characteristics of a reasonable
person
The reasonable person is a fictitious or abstract
concept that expresses the standard according
to which one measures the reasonableness of a
defendant’s conduct. Therefore, the reasonable
person standard requires an adequate and
consistent level of care on the part of all legal
subjects, and it must also be sensitive to a society
where people have various skills, level of intellect
and are of different ages.
6.4 The test for negligence
In Sea Harvest Corporation (Pty) Ltd v Duncan Dock
Cold Storage (Pty) Ltd the Supreme Court of Appeal
reiterated that the benchmark for negligence is
what a reasonable person would have done in the
same circumstances as the defendant.
Courts have developed tests, and the most often
quoted is the one set out in Kruger v Coetzee.
However, these tests are still no more than guidelines
or approaches for assessing how a reasonable
person would have acted in the circumstances.
Any conclusion reached after applying one of these
tests should articulate the benchmark standard of
reasonable behaviour.
CASE LAW
Kruger v Coetzee
Coetzee’s car was damaged in a collision with
Kruger’s horse, which strayed from Kruger’s property
through an open gate and onto a public road. The
local divisional council had put in the gate to get
Law of Delict Module
construction workers access to a construction site
via Kruger’s property.
Drivers of the construction vehicles frequently left
the gate open. Kruger had lodged complaints
about such conduct with both the divisional council
and the building contractors, but continued to keep
his horses on that land.
Coetzee alleged firstly, that Kruger had negligently
allowed his horses to stray on onto a public road
unattended, and secondly, that in leaving the gate
open, Kruger had been unable to exercise control
of the horses. The court articulated the test of
negligence as follows.
For the purposes of liability, culpa arises if:
(a) A diligens paterfamilias in the position of
the defendant:
(i) Foresee the reasonable possibility of his
conduct injuring another in his person
or property and causing him patrimonial
loss
(ii) Would take reasonable steps to guard
against such occurrence
(b) The defendant failed to take such steps.
The Court noted that requirement (a)(ii) is often
overlooked, and that there must be an indication
as to what reasonable steps a diligens paterfamilias
in the position of the defendant would have taken.
Assessing such steps depends on the circumstances
of each case, and there is no generally applicable
basis for constituting reasonable precautions for all
situations.
In this instance it was common cause that a
reasonable person in Kruger’s position would
have foreseen the possibility of his horses straying
through the open gate onto the main road, and
causing damage to motor cars that might collide
with them.
In fact, Kruger conceded that he was aware of the
possibility. Kruger further conceded that he had
24
been aware that the gate was often left open. Yet,
he continued to keep his horses on the property.
The Court held that such circumstances, a
reasonable person would not have ‘shrugged
his shoulders in unconcern’, and if there were
reasonable steps that could have been taken, a
reasonable person would have taken them.
The defendant did in fact take some steps to prevent
the gate from being left open. He went to divisional
council twice to complain about employees
leaving the gate open. He also complained to the
construction managers.
So, the question that remained was whether there
were any other steps that Kruger should have
taken. The Court found that insufficient evidence
was presented of any other steps that kruger should
have taken, and accordingly found that Coetzee
had not proved that Kruger had been negligent.
The test articulated in Kruger v Coetzee points to
four important issues that one must assess when
determining whether the defendant’s conduct was
reasonable or unreasonable (and this blameworthy
for purposes of the law):
1. The first is to place a reasonable person in the
same position as the defendant.
2. The second is to evaluate the situation and
circumstances to see whether a reasonable
person in the defendant’s position would have
foreseen the possibility of harm arising from
the conduct. If a reasonable person would
have foreseen that the relevant conduct might
cause harm, then one can move on to the next
issue.
3. The third issue raises the question of whether a
reasonable person would have done anything
to prevent the harm from occurring if the
conduct continued. To answer this question,
one must assess what steps were available to
the defendant in the particular circumstances.
This is done by assessing the availability of
alternative steps that would have prevented

harm, and whether they were reasonable and
practical in the circumstances. If the defendant
did in fact take some measures to prevent the
harm, the plaintiff must show that such measures
were either unreasonable or inadequate, with
reference to what a reasonable person would
have done in the circumstances. In the Kruger
v Coetzee the Court noted that one must first
determine what steps were available before
one can assess whether a reasonable person
would have taken any other steps.
4. In the fourth instances, one, must compares
the defendant’s conduct to the course of action
that the court thinks a reasonable person would
have taken in the circumstances. If it appears
that the defendant did nothing, or did less than
what a reasonable person would have, the
defendant’s conduct was ‘sub-standard’ and
unreasonable, and therefore negligent.
6.5 Foreseeability and preventability
The test for negligence stands on two pillars
1. The foreseeability of harm
2. The preventability of harm.
6.6 Foreseeability of harm
One cannot establish negligence unless one can
prove that the harm arising from the defendant’s
conduct was reasonably foreseeable. This assessed
after considering the surrounding (or objective)
circumstances and the qualities that the law
attributes to a reasonable person.
Therefore, reasonable foreseeability is a flexible
concept because it depends on the circumstances.
There are no hard and a juridical evaluation of
the risk in those harm reasonably foreseeable, but
courts have identified some broad guidelines that
should be applied flexibly.
Scott JA (for the majority) considered the test for
negligence as developed in Kruger v Coetzee, and
as redeveloped in Mukheiber v Raath.
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Law of Delict Module
(a) A reasonable person in the position of the
defendant:
(i) Would foresee harm of the general
type that actually occurred
(ii) Would foresee the general type of
casual sequence by which that harm
occurred
(iii) Would have taken steps to guard
against it.
(b) The defendant failed to take those steps.
6.7 Preventability of harm
Once it is established that harm was indeed
reasonably foreseeable, one can then enquire
whether that harm was also reasonably preventable.
However, in some instances the possibility of (serious)
harm resulting may be slight that the reasonable
person would not have taken preventative measures.
In such instances applying the negligence test does
not go further than the question of foreseeability.
Whether a reasonable person would have taken
measures to prevent the harm from occurring,
depends on the circumstances of each particular
case. However, it is not enough merely to indicate
that a reasonable person would have taken some
measures to prevent the harm. The plaintiff also
has to indicate which reasonable measures the
defendant should have taken in the circumstances
to prevent the harm from occurring.
6.8 Circumstances and factors that
indicate the required standard of
care
In applying the test for negligence as set out in
Kruger v Coetzee and Sea Harvest Corporation
(Pty) Ltd, the following circumstances play a role
in assessing the standard of care against which we
should measure a defendant’s conduct.
6.9 General practice
A defendant who follows general practice in a
particular set of circumstances will usually comply
Law of Delict Module
with accepted precautionary measures, provided that
a reasonable person would similarly have followed
that general practice. General practice usually
sets out the standard of reasonable behaviour,
especially the precautionary measures to apply in
particular situations. It also indicates what society
would regard as reasonable conduct or practices.
Therefore, a defendant can escape liability by
showing that the conduct conforms with normal
or general practice. If it did not, he defendant is
considered to have been negligent.
6.10 Legitimate assumption of
reasonable conduct of others
People who act according to an assumption that
others would reasonably comply with the standard
of a reasonable person, normally act reasonably.
In other words, a reasonable person would expect
other people to be reasonable persons also. One
can therefore assume that other motorists will obey
the road safety rules, or that elevators, pavements,
and shop floors are in good condition and safe for
use. However, if one realises that the assumption
is not justified, one should adjust one’s conduct
accordingly. Usually pedestrians will not be
negligent when they assume that drivers will stop at
stop signs or pedestrian crossings.
6.11 Sudden emergency and error
of judgement
The so called ‘doctrine of sudden emergency’ is
based on the premise that the law cannot expect
a person who has to act quickly in the face of
imminent danger to exercise the same standard of
care as a person who does not have to act under
these circumstances. In a sudden emergency
situation, one does not have the opportunity to
consider rationally all the consequences of one’s
actions.
6.12 Breach of statutory duty
The legislature can prescribe the appropriate
standard of behaviour for some situations. Courts
26
prefer the approach that breach of statutory duty
is merely an indication of negligence. This is in
accordance with the fundamental principle that
we must determine negligence in terms of the
reasonable person standard.
Breach of statutory of duty is thus merely a factor that
we take into account when determining negligence.
So a breach of statutory of duty does not necessarily
constitute negligence, and similarly, compliance
with a statutory duty is not necessarily conclusive in
establishing absence of negligence. The ultimate
determinant will be whether a reasonable person
in the same situation would have complied with the
statutory duty.
6.13 Dealing with inherently
dangerous things, persons or
circumstances.
Where a person deals with an inherently dangerous
thing, or is in control of a dangerous things or
situation, that person is required to act with greater
care. Examples of dangerous things or situations
include handling loaded firearms, transporting
dangerous criminals, slippery floors in supermarkets
and swimming pools in the vicinity of young children.
6.14 Danger to children or people
with disabilities or incapacities
Society expects people to exercise greater care
and vigilance when it is likely that children, people
with disabilities, such as blind persons, or people
with a limited capacity to direct their actions,
such as intoxicated persons, are in the vicinity.
Children, especially, are known act impulsively
and unpredictably, and a reasonable person would
consider this and take precautions against injuring
a child.
6.15 Proving negligence
The plaintiff bears the onus of proving on a balance
of probabilities that the defendant acted negligently.
In the cases where there is a statutory presumption
 Law of Delict Module

of negligence, the defendant bears the burden of
rebutting that presumption.
In some instances the facts of the case are such that
one can draw an inference of negligence. Here, the
maxim res ipsa loquitur, translated as ‘the matter
speaks for itself’, applies. For example, this maxim
will apply when someone is driving on the wrong
side of the road. Such situations normally would not
occur without negligence.
The res ipsa loquitur maxim does not create a
presumption of negligence, since the plaintiff still
bears the onus of proof. The plaintiff can rely on
this maxim to convince the court of the defendant’s
negligence. Where more than one reasonable
possibility can be inferred from the facts, the
decision will depend on the probabilities of the
case and the court will normally hear evidence to
indicate the most probable possibility.

EXERCISE
Discuss the test that the courts use to establish Negligence. In your answer discuss the arms
of Negligence that is, reasonable foreseeability and preventability of harm also discuss how
Negligence is proved. (50)

27
Law of Delict Module
CHAPTER 7
WRONGFULNESS
7.1 What is the role of wrongfulness
in South African law?
In South Africa, wrongfulness is a requirement
for delictual liability. It is independent of, and in
addition to the other elements of liability:
• The conduct is used to establish the presence of
human conduct in the form of positive conduct
or an omission. An omission involves enquiring
whether a duty not to cause harm exists. This is
a wrongfulness issue: The question is whether
the harm fell within the defendant’s scope of
responsibility, so that society would regard
failure to prevent the harm as wrongful.
• The requirements of harm deals with the
effects of the infringement of a right or interest.
However, it does not explain what interests the
law of delict will protect or to what extent it will
protect these interests. Physical integrity and
tangible property are generally recognised as
fully protected interests, and the infringement
of these interests by positive conduct can be
said to be prima facie wrongful. Boterg says
in this regard ‘it is settled law that all harm to
person or property caused by a positive act
is prima facie wrongful. However, in the case
of pure financial loss, privacy, reputation and
mental distress, the extent of protection is often
a question of wrongfulness.
• The requirements of conduct, causation, harm
and fault do not adequately deal with balancing
conflicting rights or interests, for example,
reputation versus free speech, enjoyment
of property versus harm to a neighbour,
freedom of competition versus harm to trading
goodwill, and freedom of action versus a duty
to protect. Balancing these rights or interests is
a wrongfulness issue.
• The conclusion that the defendant’s conduct
28
culpable (negligently or intentionally) caused
the plaintiff’s harm is not sufficient for liability.
This is because one could justify causing harm
that would otherwise be wrongful, for example,
on the basis of defence, necessity, consent or
statutory authority. Justification is a question
of wrongfulness. The requirements of fault
(negligent or intent) generally deal with the
blameworthiness of the defendant’s conduct,
but not with the weight given to intent or
reprehensible motive of the defendant. Also,
fault does not deal with the effects of mistakes
made by the defendant, for example, in cases
of putative justification. Intent, awareness of
the possibility of harm, a reprehensible motive
and conscious negligence (recklessness) can
be indicators of wrongfulness.
• The requirements of conduct, causation,
harm and fault do not leave scope for policy
considerations relating to, for example,
guarding against indeterminate liability,
guarding against hampering or disrupting
public administration, the availability of an
alternative remedy, or the maintenance of free
competition.
• Under a fault-based system, the requirement
of either negligence or intent acts as an
important filter in evaluating whether a court
should impose liability. Where liability is strict,
eliminating the fault requirement does not
mean that all risk of harm is indiscriminately
transferred to the defendant who caused the
harm. Strict liability does not mean absolute
liability.
7.2 When is the issue of wrongfulness
likely to arise?
Wrongfulness does not usually cause problems in
cases that involve positive conduct causing bodily

injury or damage to property. In law, all harm to
person or property caused by a positive act is prima
facie wrongful.
Wrongfulness usually causes problems in cases
where the conduct is an omission or a statement,
where the harm is pure economic loss or psychiatric
injury, or where there is a conflict of rights.
7.3 Wrongfulness- an attribute of
conduct?
Wrongfulness is not an attribute of conduct alone.
It characterises the outcome of a sequence that
involves conduct and the harm caused by the
conduct. Without harmful consequences, there is no
wrongfulness and no delict, however reprehensible
the conduct in question may be. For example,
driving at high speed down a busy street is reckless
and reprehensible conduct, but if a person causes
no harm by doing this there is no wrongfulness and
accordingly no delict.
7.4 Wrongfulness presupposes both
conduct and consequences which do
not necessarily occur simultaneously
Wrongfulness takes into account both the
defendant’s conduct and the consequences of this
conduct. The conduct and its consequences may
not happen at the same time or the same place. For
example, an assault may cause immediate injury,
whereas the effects of building an unsafe wall
may not be seen until much later, when the wall
collapses. In RAF v Mtati negligent driving caused
an accident in which a pregnant woman was
injured. She later gave birth to a child with brain
damages. The Supreme Court of Appeal decided
that the harm occurred when the child was born
with injuries. The completed causal sequence could
only at that time be characterised as wrongful.
7.5 Wrongfulness- a matter of law
Wrongfulness is a matter of law. Courts usually do
not hear evidence on the issue of wrongfulness. The
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Law of Delict Module
onus is on the plaintiff to make and prove factual
allegations from which wrongfulness, which is a
matter for judicial determination, can be deduced.
A defendant who relies on justification for causing
harm bears the onus to allege and eventually present
factual evidence that would enable one to draw an
inference of such a justification. Justification is part
of the enquiry into wrongfulness and is a conclusion
of law.
7.6 Wrongfulness and the
infringement of a right
The enquiry into wrongfulness can focus either on
the infringement of a right, or on the breach of
duty. One can look at wrongfulness from either of
these two angles and it does not really matter which
angle one prefers or starts off with.
This is because rights and duties are related, and a
breach of a duty will, at the same time, constitute
an infringement of a right. The choice of which to
use depends upon the facts and whether it is easier
to recognise the right or the duty.
Rights to person and property are settled and easy
to recognise. Courts work from the promise to
causing harm by infringing these rights is wrongful,
without finding it necessary to refer to the general
criterion of reasonableness, the boni mores, and the
legal convictions of the community or concomitant
policy considerations. It is settled law that harm to
person or property caused by a positive act is prima
facie wrongful. In the absence of some form of
justification, such as self-defence or necessity, the
infringement of such rights is wrongful.
The rights-based approach to wrongfulness mostly
involves the following settled categories of rights:
• Real rights in respect of movable or immovable
property
• Personal rights in respect of an act or
performance required from another person,
such as payment of a debt
• Personality rights in respect of aspects of human
personality, such as bodily integrity, dignity or
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reputation
• Immaterial property rights in respect of
intangible products of the human mind, such
as patents, trademarks or copyright.
7.7 Wrongfulness and breach of duty
The enquiry into wrongfulness often focuses on
whether a duty exists, especially in cases where it is
not easy to identify a right. It is easier to look at the
issue from a duty point of view. This occurs where
the defendant is blamed for an omission (failure
to prevent harm to another person), for causing
financial loss by misstatement or unsound advice,
or where breach of statutory duty is involved.
Breach of a legal duty to another person also
involves infringement of their right not to be
harmed, because to every obligation there is a right
and duty side, and a legal duty is the converse of
a right. Assessing wrongfulness from the duty side
simply involves a difference in the initial focus of
the enquiry.
The general criterion for determining wrongfulness
remains the same: whether the defendant
unreasonably, or contrary to the boni mores or the
legal convictions of the community, failed to prevent
harm to the plaintiff.
7.8 Different concepts of ‘duty’
In this section we examine how the courts’
approach to the concept of ‘duty’ has developed
over time, and how the modern concept of ‘legal
duty’ for determination wrongfulness differs from
the concept of a ‘duty of care’ as used in earlier
South African cases, influenced by English law. In
some earlier South African cases courts dealt with
questions of wrongfulness by following the ‘duty of
care’ approach of English law.
30
Their view was the harm is not actionable unless
the defendant has a ‘duty of care’ not to cause
harm, and that the duty of care is essentially based
on foreseeability. Boberg said that this contentious
approach ‘brought trouble and strife’, and the
approach has attracted criticism on the basis that
the concept of a ‘duty of care’ is an unnecessary
and misleading import from English law, which
confuses negligence and wrongfulness.
7.9 What is the content of the legal
duty?
The concept of legal duty in case law is not uniform
and its descriptions vary, for example, as a duty not
to cause harm, a duty to prevent harm and a duty
to act reasonably. Some judgements and academic
comments say that where a breach of legal duty
renders the negligent causing harm wrongful, the
legal duty is a duty to act without negligence, or a
duty not to be negligent.
However, so to say that ‘ where the breach of legal
duty renders negligent conduct wrongful, the duty
is a duty to act without negligence’ is puzzling,
because breach of a duty not to be negligent is
nothing other than negligence. The statement,
in effect says that negligence renders negligent
conduct wrongful.
7.10 Policy consideration
It is public policy that determines whether a legal
duty for purposes of wrongfulness exists. In some
cases this involves considering the broad social
and economic impact of imposing liability, and in
others, a more limited focus on legal and factual
aspects of the relationship between the parties. In
each case, the question is whether it is reasonable
for the law of delict to shift the burden of harm from
the plaintiff to the defendant. Policy considerations
that courts take into account include:
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• The social or economic consequences of
imposing liability – in particular potential
indeterminate liability (‘opening the floodgates’)
• The availability of alternative remedies – in
particular a contractual remedy:
 Lillicrap, Wassenaar and Partners v
Pilkington Brothers (SA) (Pty) Ltd: The
Appellate Division held that a legal duty in
delict did not fit comfortably into a detailed
business contract for professional services,
inter alia, because recognising an action in
delict could mean contractual relationship.
The denial of this action was limited to the
case where the alleged negligence consists
of a breach of contract.

EXERCISE
Discuss wrongfulness and the different concepts of duty. Explain in detail what kind of conduct
is considered to be wrongful and when can a seemingly wrongful act be justified. (50)

31
Law of Delict Module
CHAPTER 8
8.1 GROUNDS OF JUSTIFICATION: DEFENCES DIRECTED AT
THE WRONGFULNESS ELEMENT
8.2 Consent
Where a person capable of expressing her will
indicates to another person that she is willing to
suffer some harm or to run the risk of suffering some
harm, for a lawful purpose, then the causing of
such harm by the other person is justified. Consent
is a ground of justification based on one of two
arguments:
• It involves a waiver of rights in respect of the
harm concerned
• The causing of harm is reasonable in terms
of the boni mores or the legal convictions of
the community where the person affected has
indicated consent or willingness to suffer harm
for a lawful purpose.
One could also say that consent is a ground of
justification because a legal duty not to cause harm
does not arise when the harm has been consented
to.
Voluntarily taking part in a dangerous activity does
not necessarily constitute consent to suffer harm
resulting from the negligence of others who also
take part in the dangerous activity.
However it may nevertheless constitute contributory
negligence in respect of the resulting harm. Consent
on the part of a plaintiff is a ground of justification,
and therefore a complete defence, which excludes
liability on the part of the defendant who caused
the harm.
The characteristics of and requirements for valid
consent are:
• The plaintiff has to indicate that he or she is
willing to suffer harm or run the risk of some
32
harm. An agreement or contract between the
plaintiff and defendant is not required. The
defendant who caused harm to the plaintiff,
who had indicated willingness to suffer the
harm, can rely on consent as a defence. The
defendant does not have to prove that there
was an agreement of willingness between
the parties. Where there was an agreement
between the parties that one person will not
hold the other liable for harm that may ensue
(pactum de non petendo), the practical effect
is the same as consent. Consent involves only
the conduct of the plaintiff who can revoke the
consent at any stage prior to the defendant
causing the harm. For example, a person who
has consented to an article being published
about his or her private life can revoke this
consent before publication, and the publication
would then be a wrongful invasion of privacy.
• The consenting party must have indicated
consent in an obvious manner. If there was
no external sign of consent, for example, if
the plaintiff remained quiet and passive when
the harm occured, the plaintiff could of course
simply deny that he or she had consented and
the defendant would not be able to prove the
contrary.
• A person can give consent verbally, either
expressly or by implication, or tacitly by
conduct. Encouragement or invitation to
cause harm does indicate consent, but mere
acquiescence or knowledge that harm will
ensue is not enough to constitute consent.
• Consent must be given before the harm
occurs. As consent is a ground of justification
that involves a waiver of rights in respect
of the harm concerned, causing the harm
prior to giving the consent will be wrongful.

However, the person who suffers the harm may
of course afterwards also waive the right to
claim damages, either unilaterally, or by way
of an agreement not to claim (pactum de non
petendo).
• Consent must be given by a person capable
of expressing his or her will, and who is the
person who will suffer the harm. This does
not mean that majority or full legal capacity
is required for consent. However, the person
who consents must have the mental ability to
appreciate the implications of his or her actions,
to distinguish between right and wrong, and to
act accordingly.
• Consent must be given freely and voluntarily.
Courts will not accept consenting to suffer
or risk harm from a person who was under
moral, social or economic pressure, for
example, in a situation where an employee
undertakes dangerous work in the course of
his or her employment, or submits to physical
punishment.
• Full prior knowledge of the nature and extent
of the harm or the risk of harm is required.
To be valid, the consenting party must have
had information on the material aspects of the
harm or the risk of harm that is involved, so
that the consent is informed.
• Accordingly, for a patient’s consent to constitute
a justification that excludes wrongfulness,
in the context of medical treatment and its
consequences, the doctor is obliged to warn
a patient of a material risk in the proposed
treatment.
• The consenting party must have been willing to
suffer the harm, both where the harm is certain
to occur through intentional conduct, as in the
case of a medical operation, and where there
is a risk of harm resulting from a dangerous
activity.
• The consent must be lawful, that is, be
permitted in terms of the general standard
of reasonableness, in accordance with the
boni mores or the legal convictions of the
community. Even if all the requirements for
33
Law of Delict Module
consent as set out in the previous bulleted
paragraphs have been met, the consent will not
be valid if consenting to the causing of harm
offends the boni mores, the legal convictions
of the community, or contravenes a statute.
8.3 Consent by assumption of risk
Where there is express consent it is a matter
of construction to determine what exactly was
consented to. In the case of assumption of a risk,
the requirement of subjective willingness to suffer
harm presents some difficulty. Mere knowledge of
the possibility of harm is not enough to constitute
consent.
The maxim is volenti non fit injuria, and not scienti
non fit iniuria. Where the contention is that there
was an assumption of a risk, the question is whether
the person could foresee the harm that eventually
occurred and accepted it as falling within the ambit
of the risk.
Consent by assumption of risk is important in sport-
relating injuries. Taking part in sports often involves
certain inherent risks of injury as a result of the
conduct of the other participants. A participant
normally consents to the risk of injuries that occur
reasonably within the normal course of a game or
event.
8.4 Prior agreement not to claim
(pactum de non petendo in
anticipando)
A prior agreement not to claim damages should
the conduct of another person cause harm (pactum
de non petendo in anticipando), is contractual. It
therefore differs from consent, which involves the
conduct of only the person consenting to suffer
harm or run the risk of some harm. The effects of
these two legal phenomena are different , in that
consent justifies causing harm, whereas a pactum
de non petendo in anticipando merely excludes
the recovery of damages for wrongfully caused
harm. However, the practical effect of a pactum
Law of Delict Module
de non petendo in anticipando is the same as that
of consent, in that it provides a complete defence
aganst a claim for damages as a result of anticipated
and later realised harm. In certain circumstances,
the conclusion of such an agreement could, at the
same time, indicate a willingness to suffer harm or
to run the risk of harm, and could therefore also
constitute consent, for example where the parties
informally agree, before taking part in a dangerous
activity, that their involvement is at their own risk
and that liability for damages is excluded.
8.5 Necessity
Necessity can justify the infringement of the interests
of an innocent person (i.e. someone not causing or
threatening to cause harm wrongfully). This occurs
in a situation where the infringement is the only
reasonable way of protecting one’s own interest or
that of another person against danger created by
natural phenomena or human conduct.
For example, a person may be justified in breaking
a window to enter another person’s house to
telephone for help in the event of injury, or to rescue
someone trapped inside the house. In such a case,
necessity justifies damaging the house.
An attack by an animal and danger created by
forces of nature are natural phenomena that do
not cause harm wrongfully. Wrongfulness is an
attribute of the outcome of a causal sequence set
in motion by human conduct. Therefore, defensive
conduct when being attacked by an animal or when
faced with danger from forces of nature does not
constitute private defence, but can be justified on
the ground of necessity.
8.6 Self-defence (private defence)
Private defence justifies protecting a legally-
recognised interest against actual or imminent
wrongful attack. The policy considerations that
underlie private defence were formulated as follows
in Ntsomi v Minister of Law and Order.
34
The principle that right does not have to yield to
wrong has been a touchstone of civilised legal
systems through the ages. The victim of a wrongful
attack has been entitled to defend his person or
property by virtue of a rule of law which has existed
in all familiar legal systems for many centuries.
8.7 The requirements for relying on
private defence are:
• There must have been a wrongful attack.
The attacker’s conduct must have wrongfully
caused, or threatened to cause, the
infringement of an interest. Private defence is
not justified against a lawful infringement of an
interest, for example, against a lawful arrest.
• The attack must be directed against a legally-
recognised interest. People usually rely on
private defence in cases of attacks on life or
bodily integrity. However, defence of other
interests such as honour or property can also
be justified. There is no closed list of protectable
interests, and in principle, a wrongful attack on
any legally-recognised interest can give rise to
a plea of private defence.
• The attack must have commenced or must
be threatening. Anticipatory defence is not
justified. Where a person expects another
person to attack a legally-recognised interest
some time in the future, it is not justified to
use force against the attacker in anticipation.
In such a case, an interdict may be the
appropriate remedy.
• The attacker does not have to be at fault.
Private defence justifies warding off harm
caused wrongfully, regardless of whether the
causing of the harm is intentional, negligent or
without fault.
• The attack does not have to be directed at
the defender. A person may defend another’s
person or property against wrongful attack.
For instance, one policeman may be justified
in using force to ward off an attack on a fellow
policeman, and a husband may prevent an
infringement of his wife’s honour.

• The defence must be directed at the attacker.
Private defence justifies causing only the harm
that is reasonably necessary to ward off a
wrongful attack. It does not justify causing
harm to a person other than the attacker.
• The means of defence must be necessary and
reasonable to prevent the threatened harm.
It is lawful for a person to use a reasonable
degree of force to protect himself or another
person against any wrongful attack.
• The defence against the attack must be
necessary. Could the defender have taken
flight? Courts have accepted that the victim
of an attack is not expected to flee from an
assailant if flight would be dangerous or if it
would amount to a dereliction of duty.
• The interest that the defender protects need not
be commensurate with or similar in character
to the attacker’s interest that is infringed by
the defence. The interest threatened by the
attack and the interest affected by the defence
are often different in a nature and of unequal
value.
8.8 Provocation
There is authority in South African law that
provocation, in the form of inciting words or
conduct, can be a complete defence to a claim
for compensation based on alleged infringement
of personality rights. For example, where the
provocative words or conduct of A causes B to
insult A, B can rely on provocation if A claims
compensation for the infringement of his personality
rights.
Provocation differs from private defence and
necessity n that the person acting in response to
provocation does not anticipate or prevent harm.
The person responds to it and retaliates. Courts are
cautious to recognise provocation as a complete
defence, because no-one should be encouraged to
take the law into his own hands.
There are different views on the nature of
provocation as a complete defence:
35
Law of Delict Module
• Provocation can exclude fault on the part of
the person who responded to the provocation.
This is either because the provoked person did
not have the capacity to form intent or because
mental capacity to decide between right and
wrong and to act accordingly may have been
affected by the provocation and the person
may therefore lack the capacity for fault.
• Provocation merely affects the amount of
compensation that the person who acts
provocatively is entitled to for the consequent
infringement of his personality rights. He may
be entitled to less compensation or may forfeit
the right to compensation entirely. Courts may
even deny the right to compensation altogether
in terms of this approach.
• The third view is that provocation can be a
ground of justification. In other words, courts
may regard the person who caused the
infringement of personality rights in response
to provocation as having acted reasonably
and therefore lawfully.
Relying on provocation as a ground of justification
requires the following:
• The provocation must be of such a nature
that one can regard the conduct in reaction
to it, whether by way of insult, defamation
or even physical assault, as reasonable. The
general standard for determining wrongfulness
in this case involves the question of whether
a reasonable person in the position of the
defendant would have been similarly provoked.
• The reaction to the provocation must be ‘an
immediate and reasonable retaliation. One may
regard an immediate, spontaneous reaction in
the heat of the moment as reasonable, whereas
a deliberate or pre-meditated later retaliation
may not be reasonable.
• The nature of the conduct in reaction to the
provocation must be reasonable in proportion
to the provocation. Courts will assess the
proportionality objectively, considering all
the circumstances of the case, including the
value and nature of the interests affected
by the provocative and retaliatory conduct
Law of Delict Module
respectively. As a rule, verbal provocation
will not justify physical assault, even if the
verbal provocation was gravely insulting or
defamatory.
8.9 Statutory authority
A statutory provision can justify causing harm
that would otherwise be wrongful. The effect of a
statutory provision is to authorise the infringement
of certain rights and correspondingly to restrict
the rights of the persons affected. The person who
claims statutory authority must not exceed the limits
of that authority. That person also bears the onus
of proving that the causing of harm was within the
bounds of the statutory authority.
Courts use the guidelines and presumption
described below to help them in the interpretation
process, but they are not conclusive.
• The general rule is that the intention of the
legislature will determine whether causing
harm in a particular instance is authorised.
Courts determine the intention of the legislature
according to the normal rules of statutory
interpretation.
• If the statute is directory in respect of an action
that involves the infringement of private interests,
and does not provide for compensation, this
indicates that the infringement of rights and
consequent harm is justified.
• If the statute is merely permissive and general
in respect of an action that involves the
infringement of private interests, and does not
provide for compensation, courts presume
that the infringement of rights and consequent
harm is not justified. However, there is no such
presumption where a public body is permitted
to act in the public interest or where the
permission to act is localised or specific.
• In the case of certain empowering statutes, the
intrinsic physical nature of the works or acts
authorised is such that their execution involves
disturbing private rights. In Johannesburg
Municipality v African Realty Trust the Court
36
held that it was impossible to exercise the power
conferred (constructing streets and drains)
without increasing the flow of water onto the
plaintiff’s land. In Breede River (Robertson)
Irrigation Board v Brink the Court held that
it was impossible to build miles of irrigation
canal across the countryside without interfering
with the natural flow of surface drainage water.
• Courts will apply the general criterion of
reasonableness to determine whether the
bounds of statutory authority have been
exceeded. For example, when alleged statutory
authority for the infringement of property rights
is concerned, the question is whether there has
been unreasonable interference with the rights
of the plaintiffs to enjoy their property.
8.10 Official capacity
Certain public officials such as judges, magistrates
or members of statutory licensing boards, are
authorised to perform functions that may negatively
affect the interests of other persons, for example,
where a judgement by a judge or magistrate
contains negative comments about the credibility of
a witness. The infringement of personality or other
interests due to the reasonable performance of
official duties is justified in the public interest
8.11 Obedience to orders
Obedience to orders as a ground of justification
has so far only been raised in criminal cases.
However, it could also arise as a defence in a civil
action, for example, where a policeman is given a
wrongful order by a superior officer to shoot at a
person running away. The question is to what extent
causing injury or death by the junior policeman
is justified by obedience to orders. In S v Banda
the Court held that obedience to a wrongful order
can be a ground of justification in the following
circumstances:
• The order must come from a person in a
position of lawful authority over the accused.
This requirement involves a question of facts.

8.12 Disciplinary powers
Persons who exercise lawful authority over children,
such as parents and persons in loco parentis, for
example, guardians and teachers, may in terms
of such authority lawfully punish the children for
education and correction.
The authority to discipline of persons in loco
parentis is an original authority and does not derive
from delegation by parents, although a parent
or guardian may delegate disciplinary powers to
another person. Delegated authority to discipline
cannot be wider or more comprehensive that the
original authority. It involves discretion, which must
be exercised reasonably and not in an unpredictable
way.
Courts take the following factors into accounts when
determining the reasonableness of the punishment:
• The nature and seriousness of the transgression
• The means and degree of punishment of force
used
• The physical and mental condition of the child
• The gender and age of the child
• The physical disposition of the child
• The purpose and motive of the person inflicting
the punishment
8.13 Impossibility
The law will not enforce impossibility. Where the
circumstances indicate that there was a duty to
act positively to prevent harm to another person,
but it was impossible for the defendant to act, the
failure to prevent harm will not be wrongful. For
example, a strong swimmer who would normally be
able to save a person from drowning may not be
able to because of a cramp in his leg. One could
say that impossibility is a ground of justification
in such a case, because in the circumstances the
defendant’s failure to prevent harm is reasonable
and in accordance with the boni mores or the legal
convictions of the community.
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Law of Delict Module
8.14 Wrongfulness
To determine liability for an omission, one enquires
whether a legal duty to prevent harm exists. There is
no general right that protects a person from harm
by another, and conversely, there is no general
legal duty to act positively to protect others, or to
prevent harm to others.
Courts recognise a duty to act positively to prevent
harm for the purposes of delictual liability only
where failing to act positively was unreasonable
according to the boni mores or the legal convictions
of the community.
The omission itself is not wrongful. The focus is
on the whole of the causal sequence beginning
with failing to act and ending with the harmful
consequences that could have been prevented by
positive action.
Enquiring into wrongfulness involves applying the
general criterion of reasonableness. Courts must
weigh up the interest of the persons involved and
also take into account the interests and convictions
of the community at large.
In omission cases that involve an alleged breach
of a legal duty to act positively to prevent harm to
others, the reasoning of courts often involves one
or more of the following considerations:
• Prior conduct: Did the defendant’s prior
conduct create a risk of harm and therefore
also the duty to prevent such harm? Prior
conduct that creates a risk of harm or a new
source of danger is no longer a requirement
for liability based on an omission, as shown
above. However, such prior conduct is still an
important factor that indicates whether a duty
to act positively to prevent harm exists.
• Control: Did the defendant have control over
a dangerous or potentially dangerous object?
Control may be actually exercised, or the right,
obligation or ability to exercise control may flow
from ownership or possession rights, or from an
Law of Delict Module

agreement or statutory provision. For example, legal duty toward third parties who rely on the
the fact that a provincial administration exercises security services for protection of their person
control and supervision over all public roads in or property. Creating such an expectation is not
the province, in terms of a statutory provision, conclusive, and courts will take into account
is as important factor in determining whether whether the plaintiff could reasonably have
the administration had a legal duty to prevent relied on the security services for protection,
a fire spreading that had started on the side and also all the other circumstances of the
of a minor public road. The actual exercise of case.
control, or the right, obligations or ability to • Knowledge: Did the defendant know or foresee
exercise control, is not in itself conclusive. It that the omission would cause harm, or did
is, however, an important factor that indicates the defendant have the motive to cause harm?
whether a legal duty in respect of a particular Knowledge or foresight of the possibility of
harm occurring exists. harm makes causing such harm unreasonable
• Obligation to act positively in terms of and therefore wrongful.
common law or statute law: Did the defendant • Practical measures to avert harm: What
have an obligation, in terms of a rule of practical measures could be taken to avert the
common law or statute law, to act positively harm? Courts consider the probable success
to prevent harm to others? For example, the and the relative ease and expense of practical
owner of low-lying land is obliged to provide steps that the defendant could have taken to
lateral support for the higher land of his or her avert the loss.
neighbour. A landowner is generally required
• Professional duty: Did the failure to prevent
to prevent harmful substances from flowing or
harm occur while rendering professional
otherwise escaping from the property to the
services (for example as an attorney, engineer,
neighbouring land. The existence of a statutory
or a doctor), and was there a failure of
duty is determined according to the normal
professional competence or skill?
rules of statutory interpretation as it appears
• Public office: Did a person holding a public
from the wording of the statutory provision.
office, such as a notary, sworn appraiser or an
• Special relationship: Did a special relationship
auditor, fail to prevent harm in the course of his
between the parties give rise to a legal duty for
official duties?
the defendant to prevent harm to the plaintiff?
• Social and economic implications: What are
The mere fact of such a special relationship is
the legal, social and economic implications
not conclusive, but it will be an important factor
of imposing liability for the infringement?
in indicating a legal duty to prevent harm, and
For example, would imposing liability on
courts will consider it along with all the other
a policeman for dereliction of duty result
circumstances of the case. A relationship of
in a large influx or similar claims, so that
trust or authority, or a long-standing business
substantial time, expense and diversion of
relationship can give rise to such a duty. A
police manpower would be required to defend
contractual relationship can also give rise to a
such claims?
duty to prevent harm to the other party, to the
contract, or to a third party.
8.15 Negligent misstatement
• Creating an expectation: Did the defendant
create the expectation that he would protect
Wrongfulness
the interests of the plaintiff? For example,
a security firm that provides security services
Wrongfulness is often the main issue in determining
for an office building or parking garages, in
liability for negligent misstatements, because
terms of a contract with the owner, may have a
causing pure economic harm by negligent

38

misstatement is not prima facie wrongful. Although
one generally determine wrongfulness by looking
at either the infringement of a right or the breach
of a duty, in these instances there is often no
infringement of one of the settled categories of rights
(real, personal, personality, or intellectual property
rights). Courts therefore ask whether the defendant
had a legal duty to provide correct information to
the plaintiff, and whether fulfilling this duty would
have prevented harm to the plaintiff.
The following factors are typical of what courts take
into account when deciding whether a legal duty
to provide correct information to another person
exists:
• Public office: Was the economic loss caused
by a person holding a public office, such as a
notary, sworn appraiser or an auditor?
• Professional knowledge and competence: Was
the economic loss caused while providing
professional services, and was there a failure
of professional competence or skill? Where
the defendant provides professional services
and professes to possess special skills, special
or exclusive knowledge, or professional
competence, courts will more readily accept
that it is unreasonable to cause economic loss
to a person that depends on the defendant’s
professional competence, or that relies on
the correctness of information furnished in a
professional capacity.
• Knowledge: Did the defendant know or foresee
that the misstatement would cause harm or did
the defendant have the motive to cause harm?
Such knowledge or foresight of the possibility
of harm imposes a duty on the defendant
39
Law of Delict Module
not to cause the harm. Causing such harm is
unreasonable and therefore wrongful.
• Extent of possible liability and the economic
or social consequences of imposing liability:
Where recognising a duty to prevent economic
loss could lead to a situation of indeterminate
liability or ‘one fraught with an overwhelming
potential liability’ or to a ‘multiplicity of action’
that could be ‘socially calamitous’ courts will
be reluctant to accept that such a duty rested
on the defendant.
• Ability to protect oneself against liability or loss:
Court can take into account the ability of the
person who suffered the loss to take protective
measures against such loss, for example, by
verifying the information received. Courts also
take into account the ability of the defendant
to protect himself or herself against liability for
such less, for example, by obtaining insurance
cover.
• A special relationship. Courts will be inclined
to accept that a relationship of trust or
dependence, or a fiduciary relationship, as
between an employer and employee, gives rise
to a legal duty to provide correct information.
• Pre-contractual negotiations: A person to
pre-contract negotiations with another has a
legal duty not to make a misstatement about
a material aspect of the contract. The breach
of this duty can lead to delictual liability for
the economic loss caused by a negligent
misstatement.
• Statutory duty: was a duty to provide correct
information provided for or implied by a
statutory provision?
Law of Delict Module

EXERCISE
Discuss the following grounds of justification. Outline and explain the elements of each ground
and give reference to case law.

Self defence

Necessity

Obedience to orders

Provocation (50)

40

CHAPTER 9
9.1 UNLAWFUL COMPETITION
9.2 Aquilian liability for unlawful
competition
Remedies for patrimonial loss as a result of unlawful
competition or unlawful trading are based on
the actio legis Aquiliae. The accepted position is
that there is a modern general Aquilian action for
unlawful competition or unlawful trading in South
African law
The Appellate Division recognised Aquilian liability
for the causing of harm by unlawful competition
as early as 1922. In Matthews v Young the court
stated:
In the absence of special legal restriction a person
is without doubt entitled to the free exercise of his
trade, procession or calling…But he cannot claim
an absolute right to do so without interference from
another.
Competition brings about interference in one way
or another about which rivals cannot legitimately
complain. But the competition…must itself remain
without lawful bounds. All a person can, therefore,
claim is the right to exercise his calling without
unlawful interference from others. Such interference
would constitute an injuria for which an action
under the lex Aquilia lies if it has directly resulting
in loss.
An important implication of recognising Aquilian
liability in the context of unlawful competition is
that courts may develop new forms of protection
against unlawful competition within the ambit of
the principles of the Aquilian action, even in the
absence of a direct precedent in case law.
It is not necessary for an aggrieved competitor to
bring his action within the framework of one of
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Law of Delict Module
the recognised forms of unlawful competition or
another particular form of delict. The Appellate
Division in Schultz v Butt confirmed this approach,
which means that courts should reconcile the
influence of English law, in particular with regard
to developing passing off and protecting trade
secrets and confidential information, with Aquilian
principles.
9.3 Forms of unlawful competition
The following forms of unlawful competition occur
often:
• Perhaps the most common form of unlawful
competition is passing off. This is when persons
represents to others that their business or
product is the same as, or connected to that
of another.
• Unlawful competition can involve
misappropriation of confidential information
or trade secrets. This is using or disclosing
information that has commercial value, which
was imparted or received in confidence, often
in a fiduciary or employment relationship.
Atlas Organic Fertilizers (Pty) Ltd v Pikkewyn
Ghwano (Pty) Ltd
Van Dijkhorst J, with reference to a number of earlier
cases, accepted that it is wrongful to appropriate
knowingly confidential information of a rival who
has by the exercise of his skill and labour complied
it.
He also accepted that the law will not permit
a person who has obtained knowledge of a
production method evolved by the intellectual effort
of another to by-pass this intellectual effort as his
own and to use the method as a springboard to
obtain an unfair advantage for himself.
Law of Delict Module
• Another form of unlawful competition,
sometimes categorised under the rubric
‘leaning on’, involves misappropriating an
established competitor’s name or label, or
advertising image.
• Wrongful trading conduct can occur outside
the sphere of competition, for example, in
cases of misappropriating, for advertising
purposes, the personal image of a celebrity, or
misappropriate for a different use of another’s
trade name.
• Wrongful misappropriation in the course of
trade can also involve using the advertising
value of a fictional character created by
another.
• In cases of ‘misappropriation of performance’
the competitor copies, or makes use of a
product or process developed by another.
Schultz v Butt
The applicant, Butt, the designer of a twin-hulled
fibre-glass boat named Butt-Cat, sought to interdict
a competitor, Schultz, from manufacturing and
marketing a boat with an identical hull design. Years
of experience, expertise and effort, and substantial
costs had gone into the Butt-Cat hull design and
the venture was a financial success.
Schultz got hold of a Butt-Cat hull and used it
to construct mould and then used the mould
to manufacture replica hulls for a boat named
Supercat, which was sold in competition with the
Butt-Cat. Schultz went further and registered the
hull as a model with the Registrar of Designs. Butt
applied for an interdict against Schultz and an order
for cancellation of the registration of the design, on
the basis, inter alia, of unlawful competition.
• Unlawful competition can also involve
disparaging the good name of a business or
entrepreneur, organising a boycott (instigating
others to exclude someone from a certain
commercial activity), comparative advertising,
refusing to do business and parallel importing.
42
In respect of parallel importing, courts have
decided that a trader who has an exclusive
contractual right to distribute goods in South
Africa cannot succeed with an Aquilian action
against a rival trader who engages in parallel
importation of the same goods, with the same
name, mark and get-up.
• However, where the importer or distributor
adds his own get-up or distinctive mark to
the product, thereby establishing his own
reputation for the product, a parallel importer
who imitates the get-up or mark may be liable
on the basis of passing off. In Taylor & Horne
(Pty) Ltd v Dentall (Pty) Ltd the Court refused to
afford a monopoly to an exclusive agent on the
basis of his exclusive contractual rights.
9.4 Fault
Unlawful competition generally involves intentional
conduct. Competitors will often walk a very fine
line to gain an advantage in the market. In a case
of passing off, for example, it is often difficult to
distinguish between intentions to compete and an
intention to deceive. Boberg, in an article on the
role of fault in lawful competition, wrote that all the
cases in which courts held unfair competition also
to be unlawful competition, involved deliberate
dishonestly, and that the delict of ‘unfair competition’
was ‘born and nourished in a climate of calculated
depravity.
9.5 Interests protected
The interests protected by the delictual action for
unlawful competition is essentially the right to
goodwill, that is, the right to attract custom or the
totally of attributes that entice clients or potential
clients to support a particular business. Infringing the
right to goodwill may affect only one component of
goodwill, for example, the reputation of a business,
the name of a product, the get-up of a product, a
trademark, or a trade secret. In the case of passing
off, for instance, the substratum or component of
goodwill that is primarily affected s reputation.

9.6 Wrongfulness
Wrongfulness in the context of unlawful competition,
as elsewhere, involves the question of whether the
causing of harm offends against the legal criterion
of reasonableness or boni mores, a criterion that
involves assessing relevant considerations of public
policy.
There considerations include fairness and honesty,
the interests of the competing parties, the interests
of society, the morals of the market place, and the
business ethics of that section of the community
where the norm is to be applied.
Public policy as a general criterion for determining
wrongfulness in competition and trading constitutes
‘a legal standard firm enough to afford guidance
to the Court, yet flexible enough to permit the
influence of an inherent sense of fair play.
9.7 Aquilian liability
In the area of product liability, the law of delict
supplements the limited scope of protection afforded
by the law of contract. For example, in a contract
of sale, a dealer in goods is liable to a purchaser
for latent defects where he or she publicly professes
to have attributes of skill and expert knowledge in
respect of the goods sold. The Appellate Division
accepted this in Kroonstad Westelike Boere Ko-
operative Vereniging Bpk v Botha and in Langeberg
Voedsel Bpk v Sarculum Boerdery Bdk. Schutz JA
commented as follows on the Kroonstad decision:
It remains to add that it is not only in this small,
if important, branch of the law of purchase and
sale, but in the much wider field of product liability
generally that our law may be perceived to have
lagged behind.
In Ciba-Geigy (Pty) Ltd v Lushof Farms (Pty) Ltd the
Appellate Division commented on the scope of
delictual liability for detective products:
If a manufacturer produces and markets a product
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Law of Delict Module
without conclusive prior tests when the utilisation
thereof in the recommended manner is potentially
hazardous to the consumer, such negligence on
the part of the manufacturer may expose him to
delictual liability to the consumer.
Where the consumer does not acquire the product
directly from the manufacturer, and the manufacturer
is thus a third party, such liability amounts to what is
sometimes termed ‘product liability’.
A contractual nexus between the manufacturer and
the consumer is not required. Although the historical
origin of the manufacturer’s liability is an agreement
between the manufacturer and the distributor, the
liability which arises from the manufacture and
distribution of the product, extends via the other
contracting party of any third party who utilises
the product in the prescribed manner and suffers
damage as a result thereof.
It follows as a matter of course that a manufacturer
who distributes a product commercially, which, in
the course of its intended use, and as the result of
a defect, causes damage to the consumer thereof,
acts wrongly and thus unlawfully according to the
legal convictions of the community.
A delictual claim for harm caused by a defective
product requires proof of both wrongfulness and
negligence. In the first instance, the plaintiff must
show that the defendant has wrongfully caused
harm by producing, or distributing a defective
product, in breach of its duty to the consumer.
Defectiveness of the product forms part of the
wrongfulness enquiry. Wrongfulness essentially
involves a breach of the legal duty of a manufacturer
not to expose persons acquiring and using the
products to harm. Van den Heever JA in Herschel v
Mrupe, with reference to the decision of the House
of Lords in M’Alister (or Donoghue) v Stevenson
analysed the duty as follows:
By putting into circulation potentially harmful
things…the manufacturer is not merely exercising a
legal right but encroaching upon the rights of others
Law of Delict Module
not to be exposed, when going about their lawful
occasions and when accepting the implied general
invitation to acquire and use such commodities, to
danger without warning and without their having a
reasonable opportunity to become aware of such
danger before use.
The presence of a defect is a necessary element
of wrongfulness. Assessing the defectiveness forms
part of the enquiry into wrongfulness, involving
consideration of the legal convictions of the
community, boni mores or general reasonableness.
The position in this regard has been summarised
as follows:
A manufacturer has a general duty to take
reasonable steps to ensure that defective products
do not reach the market or, if they do, to withdraw
them from the market, or to take other steps to
ensure that no harm ensues from the presence of
the product on the market.
The criterion of reasonableness coupled with
the community’s concept of what behaviour is
reasonable in given circumstances is flexible
enough to take into account such factors as the
type of product, the nature of the manufacturer’s
business enterprise, the customs and practices
prevailing in a particular trade or industry, the
amount of knowledge and expertise of potential
purchasers and users of the product, abnormal use,
and the specific stage in the production process
during which a defect originated.
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The last mentioned factor may influence the duties
of a manufacturer in different ways. At the stage of
planning or design the manufacturer must take into
account the most recent knowledge available in his
field.
To date, South African law of delict has not developed
detailed rules for different forms of product defects
(manufacturing, design or warning defects) and
courts therefore apply general principles. This
general approach can be interpreted to mean
that a product will be considered defective if it is
unreasonably dangerous:
The test is flexible enough to take into account such
factors as the type of product, the nature of the
manufacturer’s business enterprise, the customs and
practices prevailing in a particular trade or industry,
the amount of knowledge and expertise of potential
purchasers and users of the product, abnormal use,
and the specific stage in the production process
during which a defect originated.
As well as proving wrongfulness, the plaintiff must
prove negligence on the part of the manufacturer or
distributor. One determines negligence by assessing
the producer’s actions against the standard of care
a reasonable person (diligens paterfamilias) would
expect. The enquiry is whether a reasonable person
would have foreseen the harm and would have
taken steps to prevent it, and whether the defendant
failed to take such steps.
 Law of Delict Module

EXERCISE
Chin lee owns a Sushi bar at a beautiful Mall. He makes a reasonable profit and has established
clientele, the sushi bar is his main source of income. Claudia who is Chin lee ex-wife who
later married a millionaire opens another sushi bar a few metres from Chin lee’s .She drops
her prices of sushi by 70% and as a result Chin lee loses customers and closes his shop. After
that incident Claudio is overheard saying “I have achieved what I wanted, he has finally closed
shop and has no income. Now I can close my sushi bar.l don’t need it anyway”.
Is Claudia”s conduct wrongful? Discuss (50)

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Law of Delict Module
CHAPTER 10
10.1 STRICT LIABILITY AND VICARIOUS LIABILITY
Strict liability for defective producers has become
part of the law in many jurisdictions. This also
happened in South Africa when the Consumer
Protection Act 68 of 2006 came into effect on 1
April 2011.
10.2 What is the nature of the liability
created by the Act?
Section 61 of the Act provides:
1) Except to the extent contemplated in subsection
(4), the producer or importer, distributor or
retailer of any goods is liable for any harm, as
described in subsection (5), caused wholly or
partly as a consequence of:
a) Supplying any unsafe goods;
b) A product failure, defect or hazard in any
goods;
c) Inadequate instructions or warnings
provided to the consumer pertaining to
any hazard arising from or associated with
the use of any goods irrespective whether
the harm resulted from any negligence
on the part of the producer, importer,
distributor or retailer, as the case may be.
What are ‘goods’ for the purpose of strict liability?
The Act defines ‘goods’ as follows:
a) Anything marketed for human consumption;
b) Any tangible object not otherwise contemplated
in paragraph (a) including any medium on
which anything is or may be written or encoded;
c) Any literature, music photograph, motion
picture, game, information, data, software,
code or other intangible product written or
encoded on any medium, or a licence to use
any such intangible product;
d) A legal interest in land or any other immovable
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property, other than an interest that falls within
the definition of ‘service’ in this section; and
e) Gas, water and electricity.
10.3 Defectiveness of goods
The remedies provided by s 61(1) are available
for the causing of harm in consequence of (a) the
supply of ‘unsafe’ goods, (b) a product ‘failure’,
‘defect’ or ‘hazard’ in goods; or (c) ‘inadequate
instructions or warnings’ provided with goods.
The definitions of these key terms, ‘unsafe’,
‘failure’, ‘defect’ or ‘hazard’ are contained in
section 53. Therefore, strict liability can arise as a
result of several alternative modes of conduct by
the produce, importer, distributor or retailer of any
goods. One can only properly understand these by
referring to the definitions contained in section 1
and 53.
10.4 Unsafe goods
According to section 53(1)(d), ‘unsafe means that,
due to a characteristic, failure, defect, or hazard,
particular goods present an extreme risk of personal
injury or property damage to the consumer or to
other persons’. In turn, the subsections give ‘failure’,
‘defect’ and ‘hazard’ their own statutory definitions,
although it does not define ‘extreme risk’. Liability
arises if goods are ‘unsafe’ and present an ‘extreme
risk’ due to a characteristic, failure, defect or
hazard’.
10.5 Failure
‘Failure’ is relatively unproblematic. It means
(according to section 53(1)(b)) that the product
‘did not perform in the intended manner or to
the intended effect’. This indicates a typical
manufacturing defect, for example, where a

machine tool malfunctions and causes injury or the
brakes of a car fail and cause an accident.
10.6 Defect
In the definition of ‘defect’, the Act broadly adopts
a ‘consumer expectations’ standard. In terms of
section 53(1)(a) a ‘defect’ means:
Any material imperfection in the manufacture of
the goods or components, or in performance of
the services, that renders the goods or results of
the service less acceptable than persons generally
would be reasonably entitled to expect in the
circumstances; or
(i) Any characteristic of the goods or components
that renders the goods or components less
useful, practicable or safe than persons
generally would be reasonably entitled to
expect in the circumstances.
10.7 Hazard
A ‘hazard’, in terms of section 53(1)(c)(ii), means
a characteristic that’ presents a significant risk
of personal injury to any person, or damage to
property, when the goods are utilised’.
10.8 Liability for breach of a statutory
duty
A question of statutory interpretation and
wrongfulness
A person who suffers harm from the negligent
breach of a statutory duty or exercise of a statutory
power may claim for damages. To succeed with
such a claim, the plaintiff must prove the normal
elements of a delict, including the wrongful causing
of harm.
This means that the plaintiff has to prove that
compliance with a particular statutory duty is of
direct interest to him or her and that breach of that
duty has caused him or her harm.
It is not enough for the plaintiff to say that it is in the
common interest of all citizens that statutory duties
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Law of Delict Module
are complied with. Also, on proper interpretation,
the statute in question must allow or at least be
consistent with an action for damages by a person
with the requisite interest who suffers harm that
results from a breach of duty.
To determine whether they should grant such an
action, courts examine the content and purpose of
the statutory duty or power, and the implications of
imposing liability. Following the rules of statutory
interpretation, courts assess the intention of the
legislature to determine whether the statute was
intended to allow the possibility of delictual liability
for breach of the duty it creates.
If it did intend this, then the statute imposes a
delictual duty on the defendant towards the plaintiff.
It follows that causing harm by breaching such a
duty is wrongful and may involve delictual liability,
provided that the other requirements for liability are
met.
Courts look at the wording and purpose of the
statute as a whole to determine:
• The objects sought to be achieved by the
legislature
• The nature of the powers conferred by the
statute
• The duties and procedures involved in the
exercise of such powers
• The remedies available to persons harmed by a
breach of duty, both in terms of the statute itself
and the general principles of administrative
law.
10.9 Typical factors that indicate
wrongfulness
The typical factors courts take into account when
deciding whether the breach of a statutory duty
is wrongful for the purposes of delictual liability,
include:
• Could the plaintiff have averted the harm? Did
the breach of duty materially contribute to the
harm?
Law of Delict Module
• Was the statutory duty intended to benefit the
plaintiff as one of a specific class of persons?
Where the statute was enacted in the public
interest and not to protect individual interests,
a court may refuse to recognise an action for
damages, but may grant an interdict.
• In the context of unlawful competition, the
‘licence’ cases deal with the situation where
one trader alleges that he is incurring losses
as a result of competition from another trader,
who does not hold the necessary statutory
licence or permit to trade, or who otherwise
contravenes a statutory duty or prohibition. For
example, in Patz v Greene and Co a trader who
conducted business near a mining compound
applied for an interdict against a rival trader
who traded on claim land, in contravention of
a specific statutory prohibition.
• The court accepted, on principle that it is
wrongful to cause loss to a rival trader through
conduct expressly prohibited by statute.
(However, the court did not grant the interdict,
because the application did not contain all the
necessary allegations to found the cause of
action).
• The law of delict is primarily concerned with
fault-based liability. Actions involving liability
without fault include:
• The actio de pauperie for harm caused by
domestic animals
• The actio de pastu for harm caused by grazing
animals
• The actio de effuses vel deiectis and the actio
positi vel suspensi for recovering damages
from the occupier of a building from which
something was thrown (effuses vel deiectis)
or from which something fell down (positi vel
suspensi)
10.10 Liability for harm caused by
animals
Certain Roman actions that involve strict liability for
harm cause by animals still form part of modern
South African law.
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10.11 The actio de pauperie for
harm caused by domestic animals
The owner of a domestic animal is strictly liable for
the harm that the animal causes to another person
when it acts contrary to its nature (contra naturum
sui generis) and from inward excitement or vice
sponte feritate commota).
Strict liability for harm caused by animals is based
on the consideration that animals create a source of
danger in the human environment- they kick, butt,
gore, and stray on busy streets, attack, jump, chase
and bite. Many other things also create danger, but
the special risk involving animals is their instinctive,
unpredictable behaviour and their mobility.
10.12 Type of animal
The actio de pauperie in Roman law applied to
livestock and domestic animals, and was gradually
extended to include all types of domesticated
animals. Our law now recognises pauperian liability
for all types of domestic animals and livestock, and
also for domesticated wild animals or other wild
creatures employed for domestic use, such as bees.
10.13 Person who could be liable
The person liable is the owner of the animal at
the time when the injury or damage was caused.
Ownership is determined in accordance with the
accepted principles of property law. Control of the
animal is not sufficient for liability in respect of the
actio de pauperie, but the person in control may be
liable under the Aquilian action.
10.14 Type of behaviour- the contra
naturam test
For liability under the actio de pauperie the animal
must have acted contra naturam sui generis. In
Roman law the implication of this requirement was
that the animal must have acted spontaneously
and not as a result of an external factor, such as
provocation. However, the owner was liable if the

animal reacted to stroking or patting. The contra
naturam rule has been described as a conveniently
flexible concept to determine where the risk of
damage or injury should lie.
10.15 Defences
The following are recognised defences to an actio
de pauperie:
• The defendant can rely on an external factor
that provoked the animal’s harmful behaviour.
This can occur by a natural phenomenon (vis
maior) for example, when an animal reacts
to a sudden thunder clap. Such a reaction is
natural (not contra naturam sui generis) and
does not stem from inward excitement or vice.
• Culpable conduct by the plaintiff that resulted
in the harm will defeat a claim, for example,
where the plaintiff provoked a dog and was
then bitten. The degree of the plaintiff’s fault
does not have to be very high- ‘substantial
negligence or imprudence’ will defeat the
claim. Contributory negligence will not result
in courts apportioning damages in terms
of the Apportionment of Damages Act. To
date, courts have adopted an all-or-nothing
approach, although not specifically excluding
the possibility of apportionment.
• Voluntary assumption of the risk of harm by the
plaintiff will also defeat the claim, for example,
where the plaintiff knowingly and deliberately
run the risk of injury by taking a dare and
entering an area that holds a fierce bull.
• The owner of the animal can rely on a prior
contractual undertaking not to claim damages
in the event of harm occurring (pactum de
non petendo), for example, where the plaintiff
signed such an undertaking before going
horse-riding on the owner’s estate.
• The owner can rely on the fact that the
plaintiff was unlawfully present at the place
where the harm occurred. There are different
interpretations of this defence. Some cases
require a ‘legal right’ for the plaintiff to be
lawfully present (for instance by invitation or
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Law of Delict Module
with consent of the owner or occupier), and
others only a ‘lawful purpose’ (for instance
to make a delivery). In most cases, the two
approaches lead to same result if the court
accepts that the owner or occupier of the place
tacitly consented to the person entering for a
lawful purpose.
• The owner can rely on the negligence of the
keeper of the animal at the time of the incident.
Normally, the owner of an animal is liable even
if not in possession of the animal at the time
when it caused harm. However, negligence
on the part of a keeper will defeat the claim
against the owner.
10.16 Aviation
The Aviation Act imposes strict liability on the owner
of an aircraft where material harm or loss is caused
by the aircraft in flight, on taking off or landing, by
any person in such aircraft, by any article falling
from such aircraft, or to any person or property on
land or water.
The owner is not liable, however, if the harm or
loss is caused, or contributed to by the negligent or
wilful act of the claimant. The intention appears to
be to create a complete defence and to exclude the
provisions of the Apportionment of Damages Act.
10.17 Damage to telecommunication
lines and call boxes
The Post Office Act imposes strict liability on any
person who directly or indirectly injures or destroys
any telecommunications company is of the opinion
that it is justified, it may bear the whole or part of
the expenses necessary to make good such injury
or destruction.
10.18 Genetically-modified
organisms
The Genetically Modified Organisms Act provides
that the user concerned should be liable for harm
caused by using or releasing genetically-modified
Law of Delict Module
organism. No mention is made as to whether fault
needs to be proven, or to any presumption of fault.
The Act provides that liability for harm caused by the
use or release of a genetically-modified organism
shall be borne by the user concerned.
10.19 Vicarious liability
Vicarious liability of employers is a form of strict
liability. The employer is held liable without fault for
an employee’s wrongdoing and the delictual liability
of the employee is transferred to the employer. The
doctrine of vicarious liability, as it is applied in a
South Africa, is predominantly English in deprivation.
In the context of South African law, it has been
described as ‘perhaps the most comprehensive and
far-reaching innovation we have taken from English
law. South African and English courts approach the
two cardinal features of the doctrine- the concept
of an employee and that of acting in the course and
scope of employment- in a similar way, although
there are differences in detail.
10.20 General rule and justification
for vicarious liability
The general rule is that an employer is vicariously
liable, regardless of the absence of fault on the
employer’s part, for employees’ delicts when these
are committed in the course and scope of their
employment.
The employer is bound in solidum (jointly liable)
with the employee to compensate the person who
suffers harm as a result of the employee’s delict.
There have been a number of theories to explain
and justify imposing liability on an employer in this
way:
• It is sometimes suggested that employers are
in control of the behaviour of the employees.
This suggestion is no longer convincing as
many employees perform skilled tasks and
employers are often incapable of controlling
or even understanding what the employee is
doing.
• The rule is also said to be ‘founded’ upon
50
public policy and convenience, for in no other
way could they be any safety to third persons
in their dealings either directly or indirectly with
him through the instrumentality of agents.
• The employer can be considered to be the actor
where he or she acts through an employee –
qui facit per alium facit per se.
• Employers can be said to be the best ‘risk-
absorbers’, because they can distribute the
risk of accidents cost effectively by insurance,
and take precautionary measures by allocating
resources or incentive devices tailored to their
type of enterprise.
• The doctrine can also be justified on a moral
basis, as the employee inflicts loss on the
victim while pursuing the employer’s business
interests. Since the employer obtains a benefit
from the employees work, the employee should
also bear the costs of accidents arising out of
such work.
• In the context of the employment relationship,
the employer creates a risk for his or her own
ends and the employer’s liability is therefore
‘co-extensive and identical in every respect with
the liability of the servant. The ‘creation of risk’
theory is a common justification for vicarious
liability. The judgement of the Constitutional
Court in K v Minister of Safety and Security
indicates that the creation of risk can also play
a direct role in establishing whether the courts
should impose strict liability in a particular
situation. Where the employer creates a risk
that the third parties may be harmed whilst the
employee is promoting the business or interests
of the employer, it is fair to hold the employer
liable.
10.21 Who qualifies as an
employee?
Courts often regard the employment relationship
or contract of service (locatio conductio operarum)
and the contract of service (locatio conductio operis)
as distinguishable for purposes of vicarious liability.
This is because in the former instance an employee
is under the control of the employer in respect of

the nature of the work and the manner in which it is
to be done, whereas an independent contractor is
not subject to the control of the person paying for
the services. The same applies to mandatories.
10.22 An employment of akin-to-
employment relationship must exist
Vicarious liability requires a delict by an employee
who is acting in accordance with the instructions of
and on behalf of the employer. Vicarious liability
arises from all types of employment relationships,
including those that involve skilled or professional
employees who act with a large measure of
independence, such as medical doctors.
Vicarious liability can also arise from relationships
other than employment:
• Individual members of a partnership are jointly
and severally liable to a person other than a
partner for any delict that a partner commits
while acting on partnership business or with
the authority of co-partners. Therefore, for
vicarious liability, it is not a person’s capacity as
a partner, but the capacity in which the person
acts for the partnership that is important.
• As a general rule, a principal is not liable for
the unauthorised acts of his or her agent, even
if the act was part of the mandate, unless:
 The agent was acting in the capacity as agent
and within the scope of his actual or ostensible
authority.
 The agent as also an employee and acting
within the course and scope of his or her
employment.
• The owner of a motor vehicle who allows
another person to drive it may be vicariously
liable for the latter’s negligent driving if:
 The vehicle is being driven in the owner’s
interest
 The relationship between the owner and
the driver is such that the owner retains the
right to control the way in which the vehicle
is driven.
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Law of Delict Module
10.23 Employee of two employers
A person who is employed by one employer may
temporarily become the employer of another
for vicarious liability purposes, typically where
an employee is lent or hired by one employer to
another. In Midway two Engineering & Construction
Services v Transnet a labour broker supplied a
driver to a client.
The Supreme Court of Appeal had to consider
whether the broker or the client was vicariously
liable at common law for damage caused by the
driver while driving for the client. The Supreme
Court of Appeal had to consider whether the broker
or the client was vicariously liable at common law
for damage caused by the driver while driving for
the client.
Since the Court regarded the temporary employer
as the one most closely associated with the risk-
creating event, the Court found the temporary
employer to be vicariously liable. The fact that the
agreement between the two employers labelled the
driver as the employee of the labour broker, was
therefore not decisive.
10.24 Independent contractors
Generally in South African law, the employer of an
independent contractor is not vicariously responsible
for the wrongful conduct of the contractor.
This is because the independent contractor carries
out a specific piece of work (locatio conductio
operis) and is not normally subject to the control
or directions of the employer when performing this
work.
A defendant cannot avoid vicarious liability by
stating in a contract that a person is appointed as
an independent contractor, if the relationship is in
fact that of employment.
Stein v Rising Tide Productions CC
Law of Delict Module
The court identified a number of factors that
indicated that the technical crew was not an
employee of the company, including:
 The nature of work
 The existence or non-existence of a right of
supervision on the part of the employer
 The manner of payment (for example,
whether the employee is paid a fixed rate or a
commission)
 The relative dependence or freedom of action
of the employee in the performance of his or
her duties
 The employer’s power of dismissal
 Whether the employee is precluded from
working for another
 Whether the employee is required to devote a
particular amount of time to his or her work
 Whether the employee is obliged to perform
his or her duties personally
 The ownership of the working facilities and
whether the employee provides his or her own
tools and equipment
 The place of work
 The length of time of the employment
 The intention of the parties
The delict must be committed by the employee while
acting within the course and scope of employment
Generally an employer is liable for any wrongful
conduct by the employees while acting in the course
and within the scope of the employment. Broadly
speaking, employees are acting in the scope of their
employment when they carry out tasks authorised
by the employer, even if they carry out the task by
an unauthorised method.
The problem arises when the employee engages in
conduct that could be described as contrary to, or
a deviation from the tasks for which the employee
was appointed.
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If the employee abandons the tasks of the employer
entirely, that is, engages in activities completely
unrelated to, or not in furtherance of the employer’s
work, and as a result of these activities harms an
innocent third party, the employer is not liable.
10.25 Intentional wrongdoing
A difficulty arises when an intentional wrongdoing
is conducted in the course of employment. In
Salmond’s often-cited formulation, vicarious liability
arises when the employee has done ‘fraudulently
that which he has authorised to do honestly’ but
not when the employee’s conduct was insufficiently
‘connected with the authorised act as to be a mode
of doing it.
This distinction depends upon the close scrutiny
of the employee’s authorised functions, resolving
often into a question of ‘degree’. For example, in
Ess Kay Electronics (Pty) Ltd v First National Bank
of Southern Africa Ltd the court found the bank not
liable when one of its employees misappropriated
blank bank drafts.
The employee’s work had in fact included the
control and administration of the bank’s foreign
exchange department. However, the court ruled
that there was no liability, because the employee
had been promoting his own interests to the
exclusion of the banks and in acting wrongfully, he
had effectively
disengaged himself from his appointed functions.
In this case, the Court rejected the plaintiff’s
argument that there was a sufficiently close link
between the unauthorised and wrongful acts of
the employee and the work he was authorised to
do. Although the employee exploited opportunities
offered by his employment, his self interest in doing
so removed his conduct from the category of
authorised actions.
 Law of Delict Module

EXERCISE
After a long day at work, Julia feels very tired and thinks it will be best to buy a can of tuna
to make sandwiches so that she doesn’t cook a heavy meal. She buys a can of tuna (a brand
manufactured by Sharky sea food) from Buy now Supermarket .She makes sandwiches
but during the night she has severe diarrhoea. In the morning she goes to the doctor who
does some medical test and informs her that she suffers from food poisoning as a result of
salmonella bacteria. When she gets home she digs through her garbage and retrieves the can
of tuna and upon looking closely, she realises that the can was past it’s ‘best before’ date. She
also discoverers that the ‘best before’ date was concealed by the price sticker. Advise Julia
accordingly.

53
Law of Delict Module
CHAPTER 11
11.1 INFRINGEMENT OF BODILY INTEGRITY
The general remedy for the infringement of
personality rights is the actio iniuriarum. Its main
aim is to protect plaintiffs against wrongful and
intentional infringement of these rights and, where
they are violated, to provide for the recovery
of damages. There are three basic elements
for an action under the actio iniuriarum: (a) an
infringement of a personality right in a (b) wrongful
and (c) intentional way.
In Roman law, and then later in Roman-Dutch law,
the actio iniuriarum protected infringements of
corpus (bodily integrity), dignitas (dignity) and fama
(reputation). Modern law has added the rights to
privacy and identity to this list. Any factual violation
of any of these personality interests constitutes the
harm element that forms the basis of the action.
11.2 Assault
Interfering with the right to bodily integrity is not
necessary actionable in law. For example, although
pushing a person in a crowded lift or a crowded lift
or a crowded stadium is a factual infringement of a
person’s bodily integrity, it is ordinarily not wrongful
and the intention element would similarly not be
satisfied
Bennet v Minister of Police
A policeman ordered Bennett, for no reason, to
get into a police van. When Bennett refused to do
so, and resisted attempts to put him into a van by
clinging to the wire mesh surrounding the van’s
passenger compartment, the policeman used the
wooden police baton to beat Bennett’s hands loose.
He broke two fingers on Bennett’s right hand.
Bennett did not suffer any patrimonial loss in the
form of medical expenses, or any loss of earnings,
because he was laid off from work for two months
54
on full pay. He was nonetheless awarded general
damages for the pain and discomfort that resulted
from the incapacitation of his hand.
Bennett also alleged an iniuria in that he had also
suffered an infringement of his dignity in the form
of humiliation. The court found ‘that the assault on
Bennett was violent, unprovoked, unnecessary and
excessive, and even though he had been resisting
arrest, it constituted an unlawful and intentional
impairment of Bennet’s personality. The court found
that the difficulty with this claim was that Bennett
had not alleged that he had in fact been humiliated:
‘There is a very large subjective element in any
injuria, and if plaintiff feels aggrieved in his dignity
he must say so. The court thereafter considered
whether McKerron’s statement that ‘assaults of all
kinds’ could be injurious and concluded:
The fact is that not all assaults necessarily involve
contumelia. It depends upon the circumstances. A
policeman who unlawfully shoots a person does not
normally impair that person’s dignity: a robber who
stabs his victim does not normally insult the victim
by so doing. But an assault by a policeman with a
baton is probably on a different footing. I would
think that this does involve a measure of contumelia
objectively regarded.
11.3 Deprivation of personal free-
dom
A person’s righto bodily integrity is also violated
where a person’s personal freedom is restricted
or a person is deprived of liberty, for example, in
an arrest or an incarceration. These instances are
commonly referred to as either wrongful arrest
and detention or malicious arrest and detention.
The rationale for liability is set out in Thandani v
Minister of law and Order.

For wrongful arrest and wrongful detention, the
plaintiff must allege and prove that the defendant
or an agent acting on the defendant’s behalf
committed the act that led to the plaintiff’s physical
freedom being restricted. Arrest is frequently
followed by detention and, if the initial arrest is
unlawful, the subsequent detention is also unlawful.
Infringement of dignity, privacy and
identity
11.4 Insult
Insult, or the violation of a person’s feelings, is what
we have referred to as inuria in the narrowest of
the dignity concept’s three meanings. An invasion
of dignity in the form of the iniuria occurs when a
person’s subjective feelings of self-respect or self-
esteem, that is, a person’s pride and moral value
(self-worth) are violated.
To constitute a delict, there must be (a) a factual
violation of the plaintiff’s feelings that is both (b)
wrongful and (c) intentional.
Factual violation occurs when a person is humiliated,
in other words, where contumelia is present, it does
not matter what caused the humiliation. Usually it is
belittling or insulting words, but insulting behaviour
can be any form of conduct. The focus here is on
the conduct’s impact on the person, so we are
primarily concerned about people’s own opinions
of themselves, viewed subjectively, and not with the
opinion that others might hold. From the subjective
nature of this enquiry, we can draw the following
conclusions:
• Since hurt feelings are an essential prerequisite
for insult, artificial persons cannot suffer this
type of harm
• Others do not have to be aware of the insulting
behaviour or its effect. So, unlike defamation,
publication of the words to a third person is
not necessary to constitute an impairment of
dignity (although this requirement does not
preclude publications).
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Law of Delict Module
11.5 Privacy
The common-law right to privacy
Privacy, like dignity, involves both constitutional and
common-law concepts. Privacy is a self-standing
right in our Constitution, but in common law,
dignity includes the right to privacy and is protected
under the actio iniuriarum. So, although the right to
privacy exists as an independent personality right,
courts perceive claims as infringements of dignity.
However, courts recognise that the concepts of
dignity and privacy are different, because proof of
contumelia is not a prerequisite for establishing a
privacy claim. In line with general principles, for
liability to arise there must be (a) a factual violation
of the right to privacy that was (b) wrongful and (c)
intentional.
Simply put, the right to privacy is the right to be
left alone. It includes freedom from intrusion and
interferences, and from unauthorised disclosures of
information about a person’s private life. Therefore,
each person has the right to decide what he or she
would like to keep private, and when and under
what conditions one’s personal life can be made
public.
The right to privacy refers to the most personal
aspects of a person’s existence, often referred to as
a person’s inner sanctum or the truly personal realm
(such as a person’s family life, sexual preference
and home environment), which is excluded from
others. The scope of personal or private space is
diminished when we consider the social environment
in which people act, for example, when they are in
their offices, in their cars or on mobile telephones.
The factual violation of a person’s right to privacy
occurs when one’s personal space is disturbed. In
other words, privacy is violated only if outsiders
become acquainted with a person’s personal life or
personal affairs. This may occur either by a direct
intrusion, or by the unauthorised disclosure of a
person’s private facts or personal affairs to another.
Private facts include:
Law of Delict Module

Contents of private correspondence A person’s reputation is that character for moral

Debts or social worth to which he is entitled amongst his
• Physical deformities and health fellow-men’.
• Lifestyle
In other words, a person’s reputation refers to the
• Childhood background
good name that the person enjoys in the estimation
• Family life of others, that is, what others think of you as a
• Past activities (embarrassing facts) person. Reputation is thus distinct from dignity in
• Confidential information that there is an essential difference between what
others think of a person (reputation) and what a
• Information stored in data banks
person thinks of himself (dignity).

11.6 Identity
11.8 Who can sue for defamation?
Following classifications in other jurisdictions, some
All natural persons, including assisted minors,
authors suggest th----at the right to privacy includes
may sue for defamation, as may artificial persons,
two other subdivisions that we have not previously
but only in restricted circumstances. Courts are
mentioned: placing a person in a false light, and
prepared to protect the business reputation of
appropriation.
trading corporations, but not any reputation that
they might have outside their trade or business
We place a person in a false light by making false
spheres.
statements about him or her, which are neither
defamatory nor insulting, and making them known
Non-trading corporations can also sue for
so as to create a false picture of the person in the
defamation in instances where the material refers
public eye. In Kidson v SA Assosiated Newspapers
to the way in which they conduct their affairs,
Ltd the newspaper published a false story and
and is calculated to cause financial loss. Courts
photographs under the heading ’97 Lonely Nurses
treat political parties similarly to non-trading
Want Boy Friends’. The court found that the nurse
corporations.
had been insulted, and awarded damages for an
infringement of dignity.
11.9 Elements of defamation
Clearly, although embarrassing, the story and
photographs are not defamatory in the absence of a) Publications
any secondary meaning or innuendo. McQuoid-
Mason points out that this is a false light case and, Since reputation involves what others think
accordingly, an invasion of privacy. (Others view it of someone, a person’s right to reputation is
as an infringement of identity). factually interfered with only when another person
communicates defamatory material referring to
Infringements of reputation that person and makes it known to at least one
other person. So publication, which is the required
conduct element in defamation, is vital. If nothing
11.7 Defamation
has been published, the plaintiff at best has a claim
for infringement of dignity.
The law of defamation is mainly concerned with
protecting the fame (the good name or reputation)
Whether material has been published is a question
of both natural and juristic persons. A well-known
of fact. Publication can be written or spoken words,
definition of reputation is from De Villers CJ in
and even non-verbal conduct such as gestures.
O’Keeffe v Argus Printing and Publishing Co Ltd:

56

However, it is not sufficient merely that a person
presents the information to another. The person who
reads or hears the information, or who observes
the conduct, must also understand the meaning
of what is being conveyed. So the element of
publication has two components: the act of making
the material known to another (the communication),
and the understanding and appreciation on the
part of the recipient of the material’s meaning and
significance.
Who is responsible?
Often a number of people are involved in the
publication process. In these instances, subject to
one exception, every person who has contributed
to the publication may be sued. For example, the
following could be considered as having published
the material:
• In cases that involve written material: the
author, editor, newspaper owners, printers,
publishers, distributors and libraries
• In cases that involving oral material: the speaker,
the broadcaster and where appropriate, the
presenter or talk-show host
• With internet publications: the host, network
provider and service provider.
b) The communication
Communication of material from one person to
another generally takes the form of positive conduct.
The most common forms are oral communication
or written communication in looks, newspapers,
pamphlets and cartoons.
However, communication includes instances of
publication using technologies such as email and
internet websites, which include, inter alia, postings
to newsgroups and chat rooms.
Understanding
The second element of publication is that the
recipient of the communication must understand
and appreciate the material’s meaning and
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Law of Delict Module
significance. So, for example, there is no publication
where a person makes a defamatory statement to
another person in a language that the other person
does not understand, where the person is unaware
of the true meaning or significance of the material,
or, in particular instances, where the person is deaf
or blind.
c) Defamatory matters
The second component of factual violation of a
person’s fama is that the content of the published
material must be defamatory. This would also satisfy
the harm aspects of the violation of the personality
interests.
Although they do not always do so explicitly, courts
follow a two-step approach when determining
whether the material is defamatory. First they have
to establish the meaning of the material (what the
words meant), and then whether the words, as
meant, conveyed a defamatory imputation.
Truth for public benefit
The legal convictions of the community dictate
that, as a matter of policy, a defendant should be
protected against a claim if the material in question
is true and made known for the benefit of the
public. This defence, which is sometimes called the
defence of jurisdiction, has two parts to it/; truth,
and public benefit.
For the defence to take effect, both these parts must
be present. This means that truth alone cannot be
a defence, and so a statement that is true but not
made in the public interest may lead to liability in
delict. However, as we describe below, an untrue
statement in the public interest may be justified
in some instances, provided that its publication is
considered reasonable, or made on a privileged
occasion.
Truth
The defence of truth and public benefit operates
only in circumstances where a defendant makes
Law of Delict Module
factual allegations; a defendant cannot use it where
the material in question amounts to comment. A
statement is either true, or it is not true, irrespective
of what anyone might think, or might have meant
to convey. So the truth of any statement is a matter
of fact and is proven just like any other factual
allegation is proven: by producing evidence to that
effect. This part of the enquiry is not concerned with
whether the statement is reasonable or fair, and so
does not involve any normative decisions.
Public benefits
The second part of the defence requires that the
material must have been published for public
benefits, or in public interest. The primary meaning
of these phrases differs: ’benefit’ means that the
material must be ‘of interest’, or have curiosity
value.
However, both phrases are intended to convey the
notion of public concern, in that the material is
important and relevant, and that the public is made
aware of the information, because the knowledge
may be of interest in the public domain.
The underlying reason for such an interest may
be that society would benefit in some way. But the
defence is not limited to those instances where a
person can show actual benefits.
Fair comment
Freedom of expression is a prized right in a
constitutional democracy, and so public policy
requires that the law gives considerable amount
of freedom to expressing opinion. Courts should
protect honest and fair criticism, as well as opinions
and comments that are fair. The defence of fair
comment, therefore, protects ‘the right of the citizen
honestly to express his genuine opinion on a matter
of public interest, however, wrong, exaggerated or
prejudiced that opinion may be.
The basis of this defence is that a comment or an
58
opinion exists, unlike truth and public benefit, which
is based upon allegations of fact. Comment and
opinions express value judgements, which by their
very nature cannot be true or false, so the protection
extends to instances where views and opinions
are honestly held and fairly made. The criteria for
accessing what constitutes fair comment are:
• The material must amount to comment or
opinion, not a statement of fact
• The facts upon which the comment or opinion
is based are substantially true and either widely
known or incorporated by reference
• The comment or opinion pertains to a matter
of public interest
• The comment or opinion is fair
Comment or opinion and not a statement
of fact
A person making a comment is expressing an
opinion not a fact. The difference is not always easy
to determine for, as Burchell points out, sometimes
an opinion can masquerade as a fact. In Crawford
v Albu Crawford and eight others were deported
to England after being arrested in connection with
labour disturbances
Albu believed that the government had acted
correctly in deporting them, and at a meeting
shortly after their deportation sad: ‘All this strife has
been caused by fanatics – no they are not fanatics –
they are criminals in the fullest sense of the word’. It
may seem obvious that this statement is a comment
in the form of a criticism based on certain facts, but
one eminent judge of appeal, Innes CJ considered
this to be a statement of fact.
The law requires that the comment must be based
on fact and that those facts must be known to
the reasonable reader, listener or viewer, either
because they were stated expressly when making
the comment, or because they were so well known
that they constitute common knowledge. In the
latter instance, the facts are implied.

The comment must be related to a matter
of public interest
In this context, ‘public interest’ has the same
meaning that ‘public benefit’ has in the defence
of truth for the public benefit. In other words, if a
matter may affect other people, so that they may be
legitimately interested in it or concerned about how
it might affect them or others, then it is a matter of
public interests.
The comment must be fair
To be a fair comment, the comment must fall within
prescribed limits. The issue is not whether the
comment is valid, impartial or balanced.
Privileged occasion
Unlike truth for public benefit and fair comment,
the defence of privileged occasion may protect both
true and untrue statements and it does not matter
whether they are statements of fact or opinion.
The emphasis is on circumstances in which the
law recognises that the free flow of information is
more important than a person’s reputation. In other
words, the public interests demands that courts
should not impede freedom of expression, even
where that expression consists of defamatory or
untrue statement
Absolute privilege
In the interests of democracy, free speech and full
and effective deliberation, statements made while
participating in parliamentary proceedings and
in those of provincial legislatures are accorded
absolute protection against actions under the actio
iniuriarum. Provincial legislatures may grant similar
immunity in respect of municipal councils and their
members.
Qualified privilege
A defendant may rebut the presumption of
wrongfulness by showing that the communication is
protected because it was made for moral, social or
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Law of Delict Module
legal reasons, in other words, in circumstances that
public policy dictates should not attract liability. So
the defendant’s aim is to remove the wrongfulness
element from the privilege.
11.10 The defence of reasonable
publication
The defence for reasonable publication, confirmed
in National Media Ltd v Bogoshi, was expressly
stated for the first time in Khumalo v Holomisa:
(The defence of reasonable publication) permits a
publisher who can establish truth in the public benefit
to do so and avoid liability. But if a publisher cannot
establish the truth, or finds it disproportionately
expensive or difficult to do so, the publisher may
show that in all the circumstances the publication
was reasonable.
11.11 Remedies
11.12 Retraction and apology
A retraction and apology may act as mitigating
factors when assessing damages under the actio
iniuriarum and reduce the amount. During the
Middle Ages, the amende honourable and amende
profitable were the two remedies that were available
to the victim of an iniuria.
The amende profitable in effect was the same as
the actio iniuriarum the amende honorable did
not entail claiming money, but rather retracting
defamatory words and issuing an apology. The
remedy was thought to have been abrogated by
disuse, and therefore no longer applicable in South
African law. For many years it was relegated to the
chapters of delict books that dealt with the historical
development of the actio iniuriarum. In 2002 the
remedy reappeared in the case law, but courts have
yet to use it to its full extent
11.13 Interdict
An interdict is a court order by which means a
Law of Delict Module

plaintiff can prevent conduct that causes harm,
or prevent a continuation of harmful conduct
that has already commenced. Interdicts are either
mandatory or prohibitory.
A mandatory interdict requires a positive action
from the wrongdoer, for example, to destroy a
consignment of fake goods sold under a well-
known brand name, a prohibitory interdict requires
the wrongdoer to desist from wrongful conduct or
from continuing wrongful conduct, for example, a
person can obtain a prohibitory interdict against
a newspaper to stop it from printing a potentially
defamatory article, or to stop it continuing with a
particular story.
One can also classify interdicts as either final
or temporary. In a final interdict court places a
permanent ban on the threatened conduct. In a
temporary interdict a court prohibits the threatened
conduct pending. In a temporary interdict a court
prohibits the threatened conduct pending the
outcome of another hearing.
For example, if a newspaper wishes to print a story
exposing a well-known politician, the politician
may go to court to obtain a temporary interdict.
If the application is successful, the publication will
be interdicted until the date of hearing, on which
da a court will either set aside the interdict, and
the newspaper can print the story, or make a final
order, in which case the interdict stands and the
newspaper will not be able to print or continue with
the story.
The requirements of an interdict are straightforward:
(a) a clear right, (b) an actual or threatened
infringement of a right, and (c) the absence of
another suitable remedy. If one adapts these
requirements to a delictual context, the requirements
read:
1) Conduct on the part of the respondent: This
conduct may be either a positive act or an
omission. The conduct must have commenced
or be threatening.
2) The conduct will cause or threaten to cause
irreparable harm: The applicant has to prove
that the respondent’s conduct threatens to
infringe or is actually infringing a so-called
‘clear right’. This ‘clear right’, an interdict can
also lie in the case of non-compliance with a
legal duty, for example, in the case of pure
economic loss.
3) The causing of harm must be wrongful: This
requirement links with the previous requirement
of infringement (actual or threatened) of
clear right. One applies the usual test for
wrongfulness in this instance.

EXERCISE

Lucy is an editor at Read it magazine. Kelly, one of the writers comes to her and tells her that
she has a juicy story about the corruption charges against Big Tummy a well-known business
man. Kelly is not aware that the charges were dropped because the story was false. Kelly goes
on publish the story (with Lucy’s permission) and in the story she calls Mr Big Tummy a big fat
thief. As a result of the story people stop doing business with Big Tummy and he loses income.

Mr Big Tummy comes to you for advice. Advise him accordingly. (50)

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 Law of Delict Module

CHAPTER 12

12.1 DAMAGES

As mentioned in earlier chapters, a plaintiff may
recover damages in terms of one or more of the
following actions:
 The actio legis Aquiliae for compensation for
patrimonial loss
 The actio iniuriarum for satisfaction for
infringements of personality rights
 The Germanic remedy for pain and suffering
for claiming reparation for infringements of
physical-mental integrity
 The action de pauperie and the actio de
pasta, which aim to compensate pauperies
(patrimonial loss, and pain suffering caused by
animals).
12.2 Purpose of a damages award
The primary purpose of an award of damages is
to compensate an aggrieved party. In the case of
damages claimed under the actio legis Aquilia,
a court will, as far as possible, put the aggrieved
party in the position that he or she would have
been in had the delict not been committed. This is
also referred to as the ‘negative interest’ or sum-
formula.
Minister of Defence v Jackson clearly illustrates this
principle. The court held that in awarding damages
for past and future lost earnings, it had to make an
allowance for the fact that the plaintiff would as a
result of his accident not have to pay tax.
The court deducted from his claim the amount of
taxes he would have paid to ensure that he was not
over-compensated.
In the case of action iniuriarum, the damages award
serves to provide satisfaction insofar as money is
able to, although there is still view that the actio
iniuriarum has retained an element of punishment.
The purpose of the Germanic action is to increase the
plaintiff’s feeling of happiness. Netthling, Potgieter
and Visser call it ‘imperfect compensation’, while
Van de Walt and Midgley speak of ‘reparation’.
What is clear is that it is not possible to measure
pain and suffering in monetary terms, and the
amount of damages paid does not compensate in
the sense of restoring the pre-delict situation.
12.3 Future loss and the once-and-
for-all rule
Harm also includes prospective or future loss,
which is harm that may arise after the delict and
even after the date of the trial (when courts assess
the harm and quantify the damages). At the end of
a trial, courts know whether harm is likely to arise
in the future.
Future harm may consist of future patrimonial harm
or future pain and suffering. Future patrimonial loss
includes loss of future earnings (also referred to as
loss of earning capacity), future medical expenses,
future loss of support, and loss of profit.
12.4 Once-and-for-all rule
The once-and-for-all rule originated in English
law. According to this rule, a person has to claim
compensation for all loss, past and future, and
patrimonial and non-patrimonial, in a single action,
if the harm is based on a single cause of action.
This means that the plaintiff will claim for harm
that has not yet materialised, but that will in all
probability arise in the future. The effect of this rule
is that courts award damages in a lump sum, even
though some of the harm has not yet arisen, for
example, a plaintiff who suffers severe injuries as a

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Law of Delict Module

result of an accident, and will award compensation defence. The defendant can use the plaintiff’s
for that harm at the trial, even though the harm (the contributory fault only to claim a reduction in
costs for the future medical treatment) will arise in the amount of damages, and not to escape
the future liability completely.
• The reduction of damages is at a court’s
12.5 Apportionment between discretion. A court reduces damages in
plaintiff and defendant accordance with what it decides is ‘just and
equitable’, that is, what it regards as fair and
Contributory fault reasonable in the circumstances.

The apportionment of damages between the plaintiff 12.7 How are damages appor-
and defendant is governed by the Apportionment of tioned?
Damages Act.

12.8 Approach 1
12.6 The statutory provision
According to the method adopted in South British
Where a defendant has committed a delict and a
Insurance v Smith and AA Mutual Insurance
court can link the plaintiff’s conduct to the harm
Association Ltd v Nomeka, the degree of fault
that resulted, a court may reduce the amount of
attributed to the defendant depends on the
compensation that the defendant will ultimately pay
plaintiff’s degree of negligence. Thus, if a court
after considering the plaintiff’s fault. Section 1(1)(a)
finds that the plaintiff was 30% negligent, it will
of the Apportionment of Damages Act governs the
regard the defendant as 70% negligent. Note that
reduction in the amount of damages:
the respective degrees of fault by the plaintiff and
defendant will add uo to 100. So, if the total amount
Where any person suffers harm which is caused
of damages (after reduction for contingencies) is
partly by his own fault and partly by the fault of
R100 000, the plaintiff will only receive R700 000.
any other person, a claim in respect of that harm
The plaintiff would have to bear the loss in respect
shall not be defeated by reason of the fault of the
of the balance.
claimant but the damages recoverable in respect
thereof shall be reduced by the court to such extent
as the court may deem just and equitable having
12.9 Approach 2
regard to the degree in which the claimant was at
According to the method adopted in Jones, NO v
fault in relation to the damage.
Santam Bpk, the degree of fault attributed to the
plaintiff. In Jones, NO the court held that it had to
This section raises a number of issues:
establish the ‘respective degrees of negligence’ of
• The fact that a claim ‘shall not be defeated’
the parties.
means that contributory fault is not a

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EXERCISE

Hopeful is an unlicenced driver. One day he takes his father’s car and takes his friends for a
ride. Hopeful is not well versed with traffic rules. He approaches a stop sign and instead of
stopping, he drives through. Meanwhile Mudhara a truck driver who has 20 years’ experience
is approaching the same stop sign. He foresees that judging by the speed Hopeful is travelling
at, there a is possibility that Hopeful might not stop. Mudhara reasons that since it is his turn
to drive past the stop sign, he will do so regardless of what Hopeful does. Hopeful crushes on
Mudhara’s truck and Mudhara tells Hopeful that he will incur the costs of repairing the car
because it is him who broke the law. Hopeful feels that this is not fair and approaches you for
advice.

Advise Hopeful accordingly (50)

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REFERENCES
1 Borberg PQR ‘The role of fault in determining the lawfulness of competition’ (1991)54

2 Fagan A ‘Re-thinking wrongfulness in the law of delict’

3 Heuston RFV and Burkley RA (Eds) Salmon and Heuston on the Law of Torts, 4 1996

4 Max Loubser etal, The law of Delict of South Africa, 2013

64