Lod301 2024 01 SG

Law of Delict
LOD301
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ASSIGNMENT
Semester 1 2024
Module name Law of Delict
Module code LOD 301
Due date 22 April 2024
Total Marks 75
This assignment is compulsory and must be submitted through CANVAS,

inside the corresponding Module Class Course on or before 22 April 2024 by
24:00
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Please include the following information on the first page of the assignment:
Name, Surname, Student Number and Module Code.
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PDF document (File > Save As > Save as Type: PDF).
2. Save your file (MS Word or PDF) with the following naming convention:
[STUDENTNUMBER] [MODULECODE] [SURNAME].pdf
E.g. 21111234 BCU101 Surname.pdf
LIST OF REFERENCES
Refer to the STADIO Referencing guide HERE for guidance.
©STADIO Assignment – 2024 Semester 1 LOD 301 Law of Delict

Page 1 of 5
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contact the office for assistance.

Page 2 of 5
IMPORTANT NOTICE:
No answer may exceed 2 (two) pages per question or sub-question. The reason
for this is that you must be able to extract the salient points on the topic from your
textbook and other sources and answer questions straight to the point. It will show
your lecturer that you have studied the topics and developed good insight and not
merely repeat what is contained in the textbook. No answer beyond the 2 (two)
page limit will be marked.
Question 1 (10 marks)
Mr X, an avid soccer player, gets injured during a soccer game when Mr Y, a player from
the other team kicks him in the face and causes serious injuries to Mr X. Mr X wants to
claim delictual damages from Mr Y. Mr Y is of the opinion that Mr X agreed to the rules
of the game and cannot succeed with his claim. Advise Mr Y on a possible defence he
may use.
X, a cashier in a supermarket, is shot in the stomach by Y during a robbery at the

supermarket. The bullet damaged the spinal cord of X, with the result that he is paralysed
and is forced to use a wheelchair. The doctors warned X that he must constantly shift
his position in the wheelchair to prevent compression sores. X’s condition improves to
such an extent that he is able to return to work at the supermarket. However, he is
hospitalised again later as a result of septicaemia, from which he eventually dies six
months after the shooting incident. A post mortem investigation revealed that the
septicaemia was the result of severe compression sores which were caused by X’s
failure to move himself in the wheelchair. In addition, it appears that X suffered from a
blood disease since childhood, which made him more susceptible to septicaemia than
healthy people. X’s dependants institute a claim against Y for the loss of support. Y’s
only defence is that a causal link between his conduct and X’s death was absent.
For the purpose of this question, suppose that it was already established that Y had the
intention to harm X through his wrongful conduct. Now discuss the considerations to be
taken into account in determining whether Y should succeed in a delictual claim or not.

Page 3 of 5
Superspar owns a shopping mall and enters into a contract with AB Cleaning to clean
the floors on a daily basis and to keep the floors clean throughout the day. Superspar
monitored the work of AB Cleaning on a daily basis to ensure that the work was being
executed. Sam, a patron of the Superspar mall, slipped and fell in the mall where there
was a slippery substance on the floor.
Sam sues Superspar. You are Superspar’s attorney. Advise Superspar whether they
could be held delictually liable for the patrimonial harm Sam suffered.
School X arranges a field trip for the grade 8 pupils at Baby Bush Camp. One of the
activities they must do, is to build a raft and row on the river where the current is very
strong. Neither the school, nor Baby Bush Camp, provided life jackets or adequate
material to build the rafts. The teachers along on the trip, did not accompany the boys to
the river, but held a braai during the event. There was only one skinny representative of
Baby Bush Camp at the river coordinating the event. No roll call was done after the event
and it was only the next day determined that one of the pupils was missing and drowned
during the event.
The parents of the deceased pupil approach you on whether they can hold some of the
roleplayers in the scenario delictually liable due to their negligent behaviour. Advise the
parents of the deceased pupil.
Mini Research Assignment

A law student needs to be able to do research and to independently debate topics and
draw well-considered conclusions based on legal principles and supportive documents
or case law. This research assignment will challenge you to move outside your comfort
zone of only consulting your Study Guide and textbook. It will allow you to grow
academically and capacitate you to be ready for the work environment.
NOTE: For this question you need to make use of sources on the internet, such as
EBSCO Host, SABINET, HeinOnline, etc. Sufficient sources are available under the
Library function on your CANVAS page.
You must provide the web link to the article and other sources you are referring to.
(Remember the STADIO LAW referencing method.) You will obtain a mark of 0% for an
answer which you simply copied and pasted as your own work or do not provide an
internet source reference where the reference and the content thereof could be verified.
Page 4 of 5
(Be mindful of the serious matter of plagiarism.) Also refrain/do not simply add an article
as your answer. You may under no circumstance make use of
Wikipedia/Studocu/Investopedia or other similar non academic resources.
Your answer may not exceed 2 typed pages. Any pages more than 2 pages will not be
marked and you may therefore lose marks. Remember that a good answer should (1)
identify the subject matter/issue/topic, (2) define the principle/rule/law, (3) set out
elements/requirements of the principles and/or defences, (4) refer to applicable case law
or authoritative writers, (5) ensure the applicability of the facts in question to the case
and (6) provide a well-considered conclusion. The general principle of an introduction,
body and a conclusion are also applicable.
INSTRUCTION: Identify a topic in the field of the Law of Delict that you would like to do
research on and critically discuss/debate the topic. (Use the Outcomes in your Study
Guide as a guideline to identify possible topics.)
ASSIGNMENT TOTAL: 75 MARKS

Page 5 of 5
Table of Contents
Heading Page number
WELCOME 1
Topic 1 Induction to Law of Delict 2

1.1 Introduction 2
1.2 The Functions of the Law of Delict 3
1.3 Remedies 3
1.4 Protected Interests 4
1.5 Essential Elements of Liability Based Upon Fault 4
1.6 A Systematic Approach to Delictual Problem Solving 4
Topic 2 Harm 7
2.1 Introduction 7
2.2 Patrimonial and Non-Patrimonial Harm 8
2.3 Infringement of a Personality Interest 8
2.4 Personality Rights and the Constitution 9
Topic 3 Conduct 10
3.1 Introduction 10
3.2 Human Conduct 10
3.3 Voluntary Conduct and the Defence of Automatism 10
3.4 Commission and Ommission 11
3.5 Animal Behaviour 11
Topic 4 Causation 13
4.1 Introduction 13
4.2 Determining Factual Causation and the sine qua non Test 13
4.3 Critique of the conditio sine qua non Test and Alternatives 14
4.4 The Appropriate Test for Factual Causation 14
4.5 Legal Causation 14
4.6 The talem qualem Rule 15
Topic 5 Fault 17
5.1 Fault 17
5.2 Introduction 18
© STADIO (Pty) Ltd Law of Delict LOD301

5.3 Accountability 18
5.4 Intention 18
5.5 Components of Intention 19
5.6 Defences that Exclude Intention 19
5.7 Negligence and the Characteristics of a Reasonable Person 20
5.8 The Test for Negligence 20
5.9 Circumstances and Factors that Indicate the Required Standard of Care
20
5.10 Attributes of Defendants that Influence the Standard of Care Required
for Reasonable Conduct 20
Topic 6 Wrongfulness 23
6.1 Introduction 23
6.2 When Is the Issue of Wrongfulness Likely to Arise? 24
6.3 Wrongfulness and the Infringement of a Right 24
6.4 Wrongfulness and Breach of Duty 24
Topic 7 Grounds of Justification 26

7.1 Introduction 26
7.2 Consent 27
7.3 Necessity 27
7.4 Self-Defence (Private Defence) 28
Topic 8 Delict in the Business Environment 30

8.1 Introduction 30
Topic 9 Strict and Vicarious Liability 32

9.1 Introduction 32
9.2 The actio de pauperie for Harm Caused by Domestic Animals 33
9.3 The action de pastu for Harm Caused by Grazing Animals 34
9.4 General Rule and Justification for Vicarious Liability 34
9.5 Independent Contractors 34
Topic 10 Reduction and Apportionment of Damages 37

10.1 Introduction 37
REFERENCES 39
ANSWERS TO SELF-ASSESSMENT QUESTIONS 40

Welcome
Welcome to the subject Law of Delict (LOD301).
We trust that you will enjoy the exciting issues and challenges you will be facing.
We look forward to accompanying you on this meaningful and positive learning
journey. We are, however, even more interested in the impact that you will make
once you have mastered this subject.
Note
Any reference to masculine gender may also imply the feminine. Singular may
also refer to plural and vice versa.
Prescribed Reading
Loubser, M. & Midgley, R. 2017. The Law of Delict in South Africa: Private Law.
3rd ed. Cape Town: Oxford University Press. [ISBN: 9780 1 90 41148 0]
There is also prescribed reading at the end of each chapter in the prescribed
textbook. Students need refer to the indicated readings and utilise it for both the
formative and summative assessments.

1
Topic 1
Induction to Law of Delict
Prescribed Reading
Before continuing with this topic please read the following:

• Loubser et al. (2017: 4–34)
1.1 Introduction
After completing this topic, you should be able to:

• Explain the purpose of the law of delict in a civilised society.
• Define the legal basis for the law of delict.
• Know the remedies available to a plaintiff relying on the law of delict.
• Explain the types of interests protected by the law of delict.
• Know the essential elements of fault liability in delict.
• Explain a systematic approach to delictual problem solving.
Welcome to law of delict. We are confident that you will find this subject exciting
and fascinating.
Some commentators would say the law of delict, together with the law of
contract, persons and things are the cornerstones of the law. It is beyond dispute
that the law of delict is very important in a civilised society. Read any law report
for that matter or any newspaper any day and there will be a case or an article
wherein the law of delict will feature.
You have received the summary of the subjects that we will deal with. The
summary is a mere selection and you should realise that the course material is
contained in the prescribed textbook. As its name would suggest, the study guide
is merely a guide to the course. It is designed to interest you in the course and
to test your performance in studying the material.
We would concentrate in this guide on the general principles underpinning the

law of delict with reference to some particular topics, but it remains your
responsibility to work through the material and most importantly, to read the
case law referred to.

2
In this topic we deal with the purpose and basis of the law of delict and also the
types of interests protected and remedies offered by the law of delict.
You have to study chapter 1 of your textbook and understand the case law
referred to therein. Remember that the law of delict is dynamic and it changes
every day as courts come to new insights and deal with different sets of facts.
Read page 4 of your textbook for more details.
1.2 The Functions of the Law of Delict
The Law of Delict has the following inherent functions:

• Compensate for harm that has been suffered or an interest that has been
infringed
• Protect certain interests
• Promote social order and cohesion
• Educate and reinforce values
• Provide socially-acceptable compromises between conflicting moral views
• Deter the injurer from behaving similarly in future and to warn and deter
others from behaving in a similar way
• Reallocate and spread losses
Read pages 9 to 15 of your textbook for more detail.
1.3 Remedies
According to Loubser et al. (2017) the usual remedy when a delict has been
committed is compensation, i.e. to claim damages for the harm that has been
caused.
The following actions need to be kept in mind when seeking remedy:

Form of harm Action taken
Patrimonial loss Actio legis Aquiliae or Aquilian action
Pain and suffering associated with The Germanic action, which is similar
bodily injury to the plaintiff and to the Aquilian action
psychiatric injury
Injury to a personality interest (an Actio iniuriarum
iniuria)

3
1.4 Protected Interests
Irrespective of their nature and origin, the types of interests that the Law of
Delict seeks to protect from invasion fall into the following categories:
Type of interest Method of protection
Property (including physical Corporeal or incorporeal property interests
and intellectual property, will be protected by the Aquilian action.
dependents' maintenance Plants, crops and pastures are additionally
rights, current and future protected against damage caused by
profits, goodwill, and trespassing domestic animals by the action
inheritances) de pastu
Person Protection of bodily integrity Patrimonial
harm = lex Aquilia
Non patrimonial harm = actio iniuriarum
Harm caused by domesticated animals =
action de pauperize
Personality (including dignity, Mere invasion = action iniuriarum
privacy, identity and Patrimonial loss = lex Aquilia
reputation)
Psyche (including the entire Patrimonial loss = lex Aquilia
spectrum of a person's Pain, suffering and loss of a person's full
psychological health and pleasure of living = Germanic remedy
mental tranquility
1.5 Essential Elements of Liability Based Upon Fault
The essential elements of liability based upon fault refers to:

• Harm
• Conduct
• Causation
• Fault
• Wrongfulness
1.6 A Systematic Approach to Delictual Problem Solving
Step 1: Identify the parties

Step 2: Primarily fact-based decisions

4
Step 3: Primarily normative decisions
Step 4: Determining the remedy
Step 5: Apportionment of damages
Activity 1.1
Refer to pages 29 to 34 of your Textbook and describe the main requirements

for liability under each of the following actions:
• The lex Aquilia
• The Germanic remedy for pain and suffering
• The action iniuriarum
• The action de pauperize
• The action de pastu
• Vicarious liability
Activity 1.2
After studying this topic you should be able to engage with the following
questions:
• Why does a civilised society need a system of compensation for losses
incurred?
• What is the difference between instituting action for damages suffered
based on a delict committed and asking a court for an interdict to prevent
damage?
• What types of protected interests are recognised by the law of delict?
To test the grasp and understanding of the law of delict you must complete the
self-assessment exercises prepared for you. In doing so, use your own words
and attempt to limit your replies in respect of each exercise as it would benefit
you to summarise your thoughts.

5
Self-Assessment Questions
1.1 Does the law of delict allow a company to sue for damages and if so, is
there any exception to the rule?
1.2 What are the essential elements of the Lex Aquila?
1.3 Do you think that the amount of compensation awarded for a delict (for
example the damages suffered in a motor vehicle accident) should be
dependent upon whether the delict was caused intentionally or negligently?
Motivate your answer in short.
1.4 Explain why the views of society are an important basis for the law of delict.

6
Topic 2
Harm
Prescribed Reading

• Loubser et al. (2017: 75–94)
2.1 Introduction

• Define the elements of a delict.
• Explain the role and definition of "harm" in the content of the law of delict.
• Understand that there are different manifestations of harm in the content
of the law of delict.
• Know and understand patrimonial and non-patrimonial loss and its
differences.
• Explain the concept of infringement on personality interest.
In this unit we begin to explore the all-important elements of a delict namely

harm, conduct, causation, fault and wrongfulness. These elements are the
essence of the law of delict and understanding these elements is paramount. It
is therefore crucial that you appreciate and interrogate all these elements well.
You must ensure that you are familiar with these topics as they are set out in
Chapters 3 to 8 of your textbook. Harm, as an element, is dealt with in chapter 4.
Keep in mind that these general principles apply to each delict generally. The
elements of a delict are so important in the content of the law of delict that we
will devote a topic to each of them. To keep matters simple, we deal with the
elements as they appear in the textbook but their sequence is not of any
importance.

7
2.2 Patrimonial and Non-Patrimonial Harm
Harm falls into one of two broad categories, namely patrimonial harm and non-
patrimonial harm. The latter is further divided into two categories, namely pain
and suffering, and infringement of personality interests.
The concept of patrimony, or financial estate, is associated with what the Romans
called the universitas, which includes a person's current and future assets. To
ascertain if there has been harm, the value of the plaintiff's estate before and
after the event must be compared. If there is a negative impact, harm has
occurred. This is known as the "sum formula" approach.
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.
Non-patrimonial harm entails all forms of harm that one cannot measure in
monetary terms and so cannot be included in a person's universitas.
Pain, inconvenience, shock and insulting behaviour do not reduce the monetary
value of a person's estate and is therefore non-patrimonial harm. However,
expenses incurred for medical treatment to diminish the pain would constitute
patrimonial loss.
The remedy for patrimonial loss is the lex Aquilia and the remedies for non-
patrimonial loss are the Germanic remedy and the action iniuriarum.
2.3 Infringement of a Personality Interest
You must be able to discourse on the different personality interest which might
be infringed.

8
2.4 Personality Rights and the Constitution
Refer to pages 92 and 94 and answer the question whether the Constitution
recognises dignity, privacy and reputation as human rights Activity 2.1
After completing this unit you must understand what harm is in the content of
the law of delict and why it is so important that there cannot be a delict without
harm being present.
2.1 Does the law of delict allow an action for damages in every instance where
harm was suffered?
2.2 Discuss the facts and judgement of the court in the matter of Union
Government v Warneke 1911 AD 657.
2.3 Briefly distinguish in your own words between patrimonial loss and non-
patrimonial loss.
2.4 Consider the following facts: You buy a new motor Vehicle and it breaks
down unexpectedly. You have a warrantee for its repair, but no warrantee
against the losses suffered by you as a result of the breakdown for example
your inability to use your vehicle whilst being repaired.
a) Do you think you have a delictual claim against the manufacturer for
your losses suffered as a result of your inability to utilise the vehicle
whilst being repaired? Motivate your answer.
b) Do you think you have suffered any patrimonial loss? Motivate your
answer.
2.5 You are an attorney and your client is a well-known soccer player for a big
team. In a league game he is kicked by an opponent off the ball and he
suffers a serious injury. He is carried off the pitch whilst the crowd whistles
and shows their disapproval.
a) Has your client suffered harm or potential harm? Advise him with
specific regard to different types of harm and motivate your answer.
b) Who in your opinion is liable for his damages? Motivate briefly.

9
Topic 3
Conduct
Prescribed Reading
Before continuing with this topic, please read the following:

• Loubser et al. (2017:95–100)
3.1 Introduction
After completing this topic, you should be able to do the following:

• Explain why conduct is an element of a delict.
• Explain the concepts of human conduct, voluntary conduct and automatism.
• Distinguish between commission and omission.
• Understand that animal behaviour can also constitute conduct in delictual
content.
In this topic we deal with the element of conduct. Without conduct of a person
(including a legal person such as a company) or an animal, there can be no delict.
Conduct does not only manifest in positive conduct, for example to kick a ball,
but it can also manifest in the failure to act, for example the failure to kick the
ball, which is called an omission.
3.2 Human Conduct
As a general rule, conduct that forms the subject of a delictual enquiry, must be
that of a human and must also be voluntary.
Read page 96 of your textbook for more detail.
3.3 Voluntary Conduct and the Defence of Automatism
Voluntary conduct means that the conduct must be subject to the actor's will and
control.

10
This implies that the person should have the ability to direct muscular activity or
to prevent such activity.
A defence of automatism may be raised against conduct, when a defendant

asserts that he or she behaved involuntary or mechanically, or lacked the
capacity to act voluntary.
You need to study pages 96 to 99 in detail regarding this subject.
3.4 Commission and Ommission
A positive act is called a commission, while a failure to act is called an omission.

However, the same conduct might at the same time constitute both a positive
act and an omission.
Refer to page 99 of your textbook to be able to give examples of commissions

and omissions and instances where the same conduct constitutes both a
commission and an omission.
3.5 Animal Behaviour
This topic will be dealt with in more detail later in this Study Guide.
You should know how a delict can also involve animals causing harm without
human conduct being involved.
Read page 99 of your textbook for more detail.
Activity 3.1
After completing this topic, you must be able to:

• Distinguish between a commission and an omission.
• Explain what is automatism.
• Identify how animal behaviour can be classified as a delict.

11
3.1 Consider the following facts: Your friend asks you for advice. He is a
diabetic and was involved in a motor vehicle accident earlier that day.
He explains that he caused the accident because he fell asleep while
driving.
He tells you that he cannot believe that he forgot to take his medicine as
he was warned on numerous occasions by his doctor that failing to take
his medicine may cause him to fall asleep unexpectedly.
a) In your opinion, does the driving of the vehicle by your friend under
the circumstances set out above constitute qualifying human
conduct?
b) Do you think your friend acted negligently in any way in the context
of the law of delict and if so, explain why.
3.2 Consider the following facts: A security guard employed by a well-known
supermarket is approached by a lady for directions to another shop in the
same shopping centre. Instead of directing her, he tells her to accompany
him to the shop. She agrees and he takes her to a storeroom where he
assaults her.
a) The security committed a delict by assaulting her. Do you agree?
b) Does the conduct of the security guard constitute a commission or
omission? Please motivate your answer.
c) In your opinion who is liable for the damages that the lady has
suffered?
3.3 Your neighbour's chickens destroy your wife's prized flowers that she
cultivates and sells at the market. Does your wife have a delictual claim
against your neighbour? If so, is the claim based on the conduct of the
neighbour or on that of his chickens? Please motivate your answer.

12
Topic 4
Causation
Prescribed Reading

• Loubser et al. (2017: 101–136)
4.1 Introduction

• Explain why causation is an element of a delict.
• Explain the difference between factual causation and legal causation.
• Explain and define the relevant test to determine causation.
• Apply the principles of factual and legal causation to a case study.
To hold a defendant delictually liable, there has to be a causal link between the
defendant's conduct and the harm that the plaintiff suffered. The causation
element consists of two components: factual and legal causation. The primary
test for factual causation is the "but-for" or the sine qua non test. However, a
factual link between the defendant's conduct and the harm is not enough to
establish liability.
No legal system will hold people responsible for all the harmful consequences of
their conduct. This would not be fair and just. A person is liable only for the
consequences that are closely linked to his or her conduct, either directly or
sufficiently closely and this is where legal causation, the second component of
the causation comes in. Legal causation is used to limit any liability to these
consequences that one can fairly attribute to the defendant.
Read pages 101 to 103 and 123 to 125 for more detail.
4.2 Determining Factual Causation and the sine qua non Test
According to this test, the defendant's conduct must have been a necessary
condition (a conditio sine qua non) for the plaintiff's harm to occur.

13
The basis of the condition sine qua non test is that every event is the result of
many conditions or factors that are jointly sufficient to produce (or cause) that
event. Therefore, the defendant's conduct can have caused the harmful
consequence only if it was a necessary condition (conditio sine qua non) for that
consequence to occur.
4.3 Critique of the conditio sine qua non Test and Alternatives
There are three main points of critique of the test:

• The process of reasoning – determining a hypothetical result by eliminating
or substituting conduct – is clumsy.
• The test provides no answer where there are multiple causes.
• The conditio sine qua non is not a true test for the determining factual
causation because it is merely a way of expressing a causal link that has
already been determined.
4.4 The Appropriate Test for Factual Causation
The conduct in question should have caused or materially contributed to the

harm. Read the case of Minister of Police v Skosana and page 84 of your textbook
for more detail.
4.5 Legal Causation
There could be circumstances in which a court finds a person to have acted both
wrongfully and negligently, and that the conduct and the harm is too tenuous for
liability to arise. The causation element in delict therefore not only links the
plaintiff's harm to the perpetrator's conduct, but also restricts the extent of any
liability that might result.
To hold a perpetrator delictually liable, one has to establish a causal link between
the wrongful, culpable conduct and the loss that the victim suffered. The fact
that the conduct was a factual cause of the loss is not enough to satisfy the
requirement of causation. The plaintiff must also be established that there was
legal causation; in other words, that the loss is not too remote.

14
Courts use a flexible test for legal causation. This test is based on the policy
considerations of reasonableness, fairness and justice. When the flexible test was
introduced, courts did not abolish the various tests they had used in the past.
Instead the flexible test accommodates all the other tests.
You must be able to discourse on the following tests: (Read pages 91 to 100 of
your textbook for more detail)
• The direct consequences test
• The reasonable foreseeability test
• The novus actus interveniens concept
• The adequate cause test
4.6 The talem qualem Rule
In some cases, a victim may suffer more serious harm than a perpetrator
intended, because of some prior weakness of the victim, which the perpetrator
may not have known about. This weakness may be physical, psychological or
financial. In terms of the talem qualem rule (also known as the "thin skull" or
"egg skull" rule) persons take their victims as they find them.
Read page 133 to 134 of your textbook or more detail.
Activity 4.1
After completing the topic, you must be able to define the concepts referred to
above and you must understand the difference between factual causation and
legal causation. In order for you to do so, please proceed with the self-
assessment exercises.
4.1 Discuss the case of Minister of Police v Skosana in detail and the principles
dealt with.
4.2 Explain the conditio sine qua non test and give examples to illustrate your
explanation.
4.3 Briefly, in your own words, discuss the possible alternatives for the
condition qua non test.

15
4.4 Explain how the concept of "material contribution" fits in the conditio sine
qua non test.
4.5 Explain briefly what legal causation is and give an example.
4.6 Consider the following facts: The Plaintiff's bakkie is written off in an
accident as a result of the negligent driving of the Defendant. Plaintiff is
an indigent hawker and needs the bakkie to conduct his business. He has
no funds to buy or hire a new bakkie and he does not have insurance or
the money to put down a deposit on a new one.
a) Can the Plaintiff claim the repair costs of the bakkie from the
Defendant?
b) Can the Plaintiff claim his loss of income being unable to trade for
the repair period of three months from the Defendant?
c) Do you think the Plaintiff can hire a replacement bakkie for the three-
month period, trade and then claim the costs of hire from the
Defendant?
d) In your view, would it have made any difference if the Plaintiff was
wealthy and, in a position, to buy a replacement bakkie immediately?
4.7 Discuss the facts and judgment in the matter of Portwood v Swamvur. Do
you agree with the judgment? If so, motivate briefly.

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Topic 5
Fault
Prescribed Reading

• Loubser et al. (2014: 138–176)
5.1 Fault

• Explain and define the role of fault in the context of the law of delict.
• Explain the difference between intention and negligence.
• Explain and define the concepts of foreseeability and the reasonable person.
In this topic we deal with fault, perhaps the most important and complex of all
of the elements. You have to study chapter 8 of the textbook and at the same
time refresh our thoughts in respect of the elements that we have previously
dealt with to fully appreciate the function and role of faults in the law of delict.
In its simplest form, we saw that to establish delictual liability, the perpetrator
of the act that caused the harm must have been at fault.
We focus on three (3) concepts:
• Accountability
• Intention (and defences that exclude intention)
• Negligence and the concepts of foreseeability and the reasonable person.
Make sure that you understand the following terminology:
• Fault
• Dolus
• Culpa
• Accountability
You will find a handy summary on page 175 of the textbook.

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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 fault0; and
b) the person must have been culpable or blameworthy (i.e. the person must
have acted either intentionally or negligently).
Read page 138 of the textbook for more detail.
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.
There is a general presumption that persons are accountable, or culpae capax,

for harm that they have wrongfully caused. However, there are the following
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 induced by a drug
• Anger due to provocation
Read pages 139 to 144 of your textbook to be able to discuss accountability and
the categories of possible defences to exclude accountability.
5.4 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.

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There are principally three forms of intention:
• Dolus directus
• Dolus indirectus
• Dolus envetualis
Read pages 144 to 147 to be able to discuss the three forms of intention and
give examples of each.
5.5 Components of Intention
Direction of will: requires that a person must have aimed to achieve a certain
result, or at least must have been willing to produce or accept the consequences.
Consciousness of wrongfulness: requires that when a person directs his or her

will towards achieving a desired consequence, that person must know that the
conduct and the ensuing consequences are contrary to law and the legal
convictions of society.
5.6 Defences that Exclude Intention
Once a plaintiff has proved intention, the defendant can raise various defences
to escape liability. 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.
The following defences may be raised:

• Mistake
• Jest
• Intoxication
• Provocation
• Emotional distress

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5.7 Negligence and the Characteristics of a Reasonable Person
An enquiry into negligence involves evaluating a defendant's conduct according

to a standard that is acceptable in society. This standard is expressed with
reference to a fictitious "reasonable person" that represents society's
expectations of adequate and reasonable conduct.
Read page 153 to 154 of your textbook for more detail.
5.8 The Test for Negligence
In the case of Kruger v Coetzee the court articulated the test as follows:
a) A reasonable person in the position of the defendant:
i) would foresee the reasonable possibility of his conduct injuring another
in his person or property and causing him patrimonial harm.
ii) would take reasonable steps to guard against such occurrence.
b) the defendant failed to take such steps.
5.9 Circumstances and Factors that Indicate the Required Standard

of Care
In applying the test for negligence as set out in Kruger v Coetzee, the following
circumstances play a role in assessing the standard of care against which we
should measure a defendant's conduct:
• General practice
• Legitimate assumption of reasonable conduct of others
• Sudden emergency and error in judgment
5.10 Attributes of Defendants that Influence the Standard of Care

Required for Reasonable Conduct
• Beginners
• Experts
• Children

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Activity 5.1
• After completing this topic, you must be able to understand the framework
of fault. First, in order to be at fault, the perpetrator must be accountable -
it concerns the ability to distinguish between right and wrong and to act
accordingly. Use the discussion of youth as an example to understand the
concept.
• Secondly, you must understand intention and negligence. It might be useful
to use the examples of the negligent driving of a motor vehicle (negligence)
and the deliberate act of arson (intention) for a basic appreciation of the
two concepts.
• You must then also understand how and why conditions such as mistake
and provocation can operate to exclude intention. As the concepts of
foreseeability and the reasonable person is central to the law of delict you
must make sure that you are comfortable with these concepts.
To test your knowledge and understanding, proceed to the following self-

assessment exercises.
5.1 Explain how youth influences accountability.

5.2 Explain the difference between dolus directus and dolus indirectus.
5.3 Can emotional distress exclude intention? If so, motivate your answer and
also say if you agree with the general principle.
5.4 Describe, in your own words, what you see as a reasonable person.
5.5 Would you say there is a difference between foreseeability and
preventability?
5.6 Read the following set of facts and consider the questions:
Jonathan is a 15-year-old child. He is in Grade 10 in a school of
approximately a 1000 pupils. His older brother, who is 21, has taught him
to drive a motor vehicle but he is not licenced to do so. He has driven his
brother's GTI vehicle on public roads on numerous occasions but in each
instance was accompanied by his brother, who is a licenced driver.
One fateful day he and a friend play truant by staying away from school.

21
As a result of intense pressure put on him by his friend he takes the GTI
vehicle without his brother's consent out of the garage and he and his
friend decide to drive to the soccer field to kick ball.
On the way as they pass their school, pupils come running out of the
school on their way home. Jonathan drives carefully but as he passes the
school bus a Grade 8 pupil run into the road away from the designate
pedestrian crossing. Jonathan applies brakes but the car does not
respond. As a result the vehicle collides with the Grade 8 pupil who is
severely injured.
a) Did Jonathan commit a delict?
b) If Jonathan was at fault, was he negligent or did he act with
intention?
c) Can Jonathan raise sudden emergency or provocation as a defence
if he is sued for damages?
d) Should Jonathan have foreseen the possibility of the Grade 8 pupil
running into the road?
e) In your opinion, could Jonathan have prevented the harm done and
if so, motivate your answer.

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Topic 6
Wrongfulness
Prescribed Reading

• Loubser et al. (2017: 178–200)
6.1 Introduction

• Explain the concept of wrongfulness.
• Understand why conduct must be wrongful to qualify as a delict.
• Explain and define the general guidelines for determining wrongfulness.
In this topic the concept of wrongfulness will be discussed. Assuming all the other
elements that we have dealt with before are present, delictual liability will not
arise if the action complained of is not wrongful. We can do no better than Brand
JA's summary of the concepts in Le Roux v Dey (see page 141 of your textbook
and make sure that you understand the quote from the judgment.).
We can summarise as follows:

• Is it reasonable to impose liability for the damages flowing from a specific
act?
• To determine reasonableness we consider considerations of public and legal
policy infused by constitutional values.
• It is important to note that wrongfulness is a matter of law. There is no list
of what conduct is wrongful and each set of facts must be considered on its
own merits.
Wrongfulness involves the scope of protection that the law afford to various
interests, the scope of a person's responsibility to act and the policy
considerations that relate to whether the law of delict should intervene.

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6.2 When Is the Issue of Wrongfulness Likely to Arise?
The general criteria for determining wrongfulness are:

• Reasonableness (sometimes referred to as "general reasonableness")
• The legal convictions prevailing in the community
• Society's boni mores
6.3 Wrongfulness and the Infringement of a Right
The rights-based approach to wrongfulness mostly involves the following settled

categories of rights:
• Real rights in respect of movable and 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 reputation.
• Immaterial property rights in respect of intangible products of the human
mind, such as patents, trademarks or copyright.
6.4 Wrongfulness and Breach of Duty
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 a 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 a duty side,
and a legal duty is the converse of a right. Typical claims are:
• By a resident against a local authority for failing to repair a public facility or
warn of a danger
• By a member of the public against the police for failing to provide protection.
• By a customer against a bank for furnishing incorrect information or making
an incorrect payment.
Refer to page 186 of your textbook for more detail.

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Activity 6.1
Read pages 187 to 190 and explain the following:

1. Different concepts of "duty"
2. The content of legal duty
3. Policy considerations regarding legal duty.
Activity 6.2
After completing of this topic, you must be comfortable with the concept of
reasonableness and also know and understand the general guidelines or criteria
for determining wrongfulness, such as breach of duty breach of constitutional
value or the infringement of a right. You have to study Chapter 9 of your
textbook. You must also understand the role of legislation and standards or
policies set out by the courts in their judgments in relation to wrongfulness. Of
particular importance is the concept of a duty of care, which is relevant when
someone is blamed for an omission. To fully grasp the concept, take care to
consider the role of the applicable policy considerations applied by courts
discussed in paragraph 9.12 on page 190 of the textbook.
To test the depth of your understanding, do the following self- assessment

exercises:
6.1 Discuss three (3) of the policy considerations applied by courts to
determine a legal duty for purposes of wrongfulness with specific
reference to applicable case law.
6.2 Which factors are always present relevant to wrongfulness?
6.3 Discuss four (4) examples of infringement of rights as manifestation of
wrongfulness.
6.4 Define in your own words, the concept of boni mores.
6.5 Provide six (6) reasons why it is necessary for the concept of wrongfulness
to be an element of a delict. To guide you, one such reason is that
conflicting rights such as a reputation against free speech must be
balanced and wrongfulness is used as a tool to do so.

25
Topic 7
Grounds of Justification
Prescribed Reading

• Loubser et al. (2017: 203–228)
7.1 Introduction

• Explain the concept of a ground of justification.
• Differentiate between the main grounds of justification.
• Understand the requirement for each main ground of justification.
We studied the element of wrongfulness in the previous topic. We saw that

wrongfulness ultimately entails the Violation of a right or the breach of a duty.
In this topic we will consider certain exceptional circumstances where, even
though a right or a duty has been factually violated, the conduct in question is
nonetheless not wrongful. These special circumstances are generally known as
"grounds of justification" "excluding wrongfulness.
The reason the conduct in these special circumstances is not wrongful is because,
even though the conduct amounts to the violation of a right or a duty, it is
nonetheless reasonable. Accordingly, the grounds of justification represent
specific applications of the general criterion of reasonableness which governs the
delictual element of wrongfulness.
In a delictual action the plaintiff will carry the evidential burden of showing that
the defendant factually violated a right or a duty. Should the plaintiff discharge
this burden, the evidential burden shifts to the defendant: to escape delictual
liability the defendant must show that, even though he violated a right or a duty,
his conduct was reasonable in the circumstances. The defendant must show, in
other words, that a grounds of justification exists which excludes wrongfulness.
To prove that a grounds of justification exists, the defendant must prove that the
requirements of the particular grounds of justification have been satisfied.

26
7.2 Consent
Where a person capable of expressing his will indicates to another person that
he is willing to suffer some harm or run the risk of suffering some harm, for a
lawful purpose, then the causing of such ham 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.
7.3 Necessity
Necessity can justify the infringement of the interest 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. To justify that the infringement of the interest
was lawful, the person relying on necessity must prove that the protecting a
legally-recognised interest against danger created by natural phenomena or
human conduct was, in terms of the proportionality of the interest involved and
the nature and the extent of the danger and the means of protection, acceptable
in terms of the boni mores or the legal convictions of the community.
Reliance on necessity requires the following:

• There must have been actual danger to a legally-recognised interest.
• The endangered interest can be that of the defendant himself or of another
person.
• Any legally-recognised interest may be protected on the ground of
necessity, for example, life or physical integrity and property.
• The danger can be created by any natural phenomenon, such as fire or
flood, or by human conduct, such as duress.
• The danger must be present or imminent.
• A person wishing to rely on necessity must not be legally obliged to endure
the consequences of the dangerous situation.

27
• here must be proportionality between the protected interest and the interest
infringed by the protective conduct.
• In terms of the general test of reasonableness the necessity-induced
conduct must have been necessary, or the only reasonable means of
protecting the interests concerned.
7.4 Self-Defence (Private Defence)
Private defence justifies protecting a legally-recognised interest against actual or

imminent wrongful attack. The requirements for relying on private defence are:
• There must have been a wrongful attack.
• The attack must be directed against a legally-recognised interest.
• The attack must have commenced or must be threatening.
• The attacker does not have to be at fault.
• The attack does not have to be directed at the defender.
• The defence must be directed at the attacker.
• The means of defence must be necessary and reasonable to prevent the
threatened harm.
• The defence against the attack must be necessary.
• 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.
Activity 7.1
The key to mastering this topic is accordingly to:

• Know the requirements of each ground of justification; and
• Understand when these requirements will be satisfied.

28

exercises:
7.1 List three (3) examples of consent to suffer harm from everyday life.
7.2 Compare consent and prior agreement not to claim.
7.3 What is the main difference between necessity and private defence?
7.4 Which ground of justification, excluding wrongfulness, can also be a
defence excluding fault in the form of intention?
7.5 Consider the following facts:
X uses the train to commute to work every day. On several occasions the
past few weeks, he has been surreptitiously burgled on the train. One
morning on the train, he senses that someone is trying to slip his wallet
from the back pocket of his jeans. He turns around and slaps the person's
hand away just as it is about to touch his wallet. Only then does he see
that he has slapped a young boy. The boy, Z, who is 5 years old, suffers
a fractured finger because of the slap. As a result, he experiences pain
and suffering and has to undergo a minor operation. Z's father, in his
capacity as Z''s guardian and representative, institutes a delictual claim
for damages against X.
You are the advocate for X. How would you persuade a court that X's
conduct was not wrongful?

29
Topic 8
Delict in the Business Environment
Prescribed Reading

• Loubser et al. (2017: 231–235)
8.1 Introduction

• Understand negligent interference with personal rights (claims) deriving
from or another source.
• Understand Intentional interference with contractual relations.
The purpose of this topic is to introduce you to two specific forms of delictual
liability that often arises in the business environment.
The first specific form of delictual liability is the intentional interference with
contractual relations. As its name would suggest, this form of delictual liability
arises when a third party intentionally interferes in a contract between two (or
more) other parties, by, for instance, inducing one party to breach the contract.
The intentional interference with contractual relations clearly entails the
interaction between the law of contract and the law of delict. You should be aware
that the interaction between these two areas of the law is notoriously difficult.
In order not to be lead astray, please read chapter 11 together with chapter 17
of your prescribed textbook.
As explained in chapter 11 (which you should bear in mind when studying chapter
17), the law often allows a concurrence of delictual and contractual actions, in
which a plaintiff may freely choose whether to pursue delictual or contractual
remedies in the same set of facts.
But, among other exceptions, our courts will not permit a concurrence of delictual
and contractual actions unless there was an "independent duty" for the purpose
of delictual liability.

30
In other words, a claim is not competent in delict where the alleged delict consists
of the breach of a contract.
The second specific form of delictual liability that you will study in this unit is
unlawful competition. This amounts, in essence, to the wrongful interference by
a competitor with another's rights as trader. Wrongful competition can take many
forms, such as passing off, boycott, and the use of a competitor's trade secrets.
You should bear in mind that they often overlap in practice. It does not require
much imagination to think of a scenario in which one person intentionally
interfere with a competitor's contractual relationship, and, in so doing, engage
in unlawful competition.
You should bear in mind that, unlike the Law of Torts in the English legal system,
ours is a law of delict and not a law of delicts. Specific forms of delictual liability,
such as the intentional interference with contractual relationship or unlawful
competition, are merely specific applications (with concomitant sub-rules) of the
general principles of delictual liability that you considered in the preceding topics.

exercises:
8.1 Can delictual liability arises from the negligent interference with a
personal right?
8.2 What is the significance of the judgment in Lanco Engineering CC v Aris
Box Manufacturers 1993 (4) SA 378 (D) to the law on the intentional
interference with contractual relationships?
8.3 List and provide examples of 6 forms of unlawful competition.

31
Topic 9
Strict and Vicarious Liability
Prescribed Reading

• Loubser et al. (2017: 455–480)
9.1 Introduction

• Explain the concepts of strict and vicarious liability and distinguish these
concepts from ordinary delictual liability.
• Identify and distinguish the main forms of strict liability.
• Identify the main situations in which vicarious liability will arise.
The purpose of this topic is to consider two extraordinary forms of delictual

liability.
The first is strict liability. The reason strict liability is extraordinary, and the
reason it is called strict, is because fault is not required for this form of liability
to arise.
The second is vicarious liability. The reason vicarious liability is extraordinary,

and the reason it is called vicarious, is because this form of liability is imposed
on someone for the delict committed by another.
In general, the law of delict gives effect to twin moral principles: the principle
that there can be no liability without fault and the principle that wrongdoers
should be personally liable. Strict and vicarious liability clearly do not give effect
to these principles. They have different rationales instead.
The rationale of strict liability is that the risk associated with certain conduct is
so egregious that liability should not be limited by the absence of fault.
This serves as an incentive to perform risky behaviour in a responsible and

careful way.

32
Various rationales have been proposed for vicarious liability. A prominent
rationale is that a person who obtains a benefit from his employment of another,
should also bear the risk of harm caused by his employee in the pursuit of that
benefit.
The most well-known form of strict liability is liability for harm caused by animals.
The owner of a domestic animal, such as a dog, is strictly liable for the harm that
the animal causes to another, provided that the animal acts contrary to its nature
and from inward excitement or vice (see page 376 of the textbook). It bears
emphasis that liability in this situation is strict: it need not be proved that the
owner acted with harmful intention or negligently. This should give pause to
those of you who own domestic animals, particularly dogs!
The classic form of vicarious liability arises in the employment context: the point
of departure is that an employer is liable for a delict committed by an employee
provided that the employee committed the delict in the course and scope of his
employment.
9.2 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)
To succeed in this action, the plaintiff will have to prove six essential elements:
• harm
• conduct by a domesticated animal
• a causal link between the conduct and the harm
• the animal must have acted contrary to the nature of its breed
• the animal must have acted from inward excitement or vice
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
• Culpable conduct by the plaintiff that resulted in the harm.
• Voluntary assumption of the risk of harm by the plaintiff
• Prior contractual undertaking not to claim damages in the event of harm
occurring.
• Plaintiff unlawfully present at the place where the harm occurred.

33
• The owner can rely on the negligence of the keeper of the animal the time
of the incident.
9.3 The action de pastu for Harm Caused by Grazing Animals
The South African law recognises strict liability for the owner of a domesticated
animal that trespasses onto another's land and cause harm by eating plants. To
succeed, a plaintiff will have to prove the following:
• The defendant is the owner of a domesticated animal that trespassed on
the property and caused harm.
• The harm was caused by grazing, and occurred in the form of damage to
plants, and can include collateral harm such as breaking fences.
• The animal must have acted of its own accord and was not provoked or
prompted into behaving this way.
9.4 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.
9.5 Independent Contractors
Generally, 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 and is not normally
subject to the control or directions of the employer when performing his 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.

34
The liability of an independent contractor's employer is governed by the ordinary
principles of negligence, and the question is whether the harm was reasonably
foreseeable and preventable by the employer.
Activity 9.1
Read pages 473 to 476 and explain the principle that the delict must be
committed by the employee while acting within the course and scope of
employment.
To test the depth of your understanding, do the following self-assessment

exercises:
9.1 Discuss the contra naturam test in the context of the actio de pauperie.
9.2 Strict liability means that the defendant’s degree of fault is irrelevant. But
what about the degree of fault of the plaintiff instituting an action for
which liability is strict, such as the actio de pauperie – is it similarly
irrelevant?
9.3 What is the significance of Midway Two Engineering & Construction
Services v Transnet (1998 3 SA 17 (SCA)) for the law on vicarious liability?
9.4 When does the law recognise vicarious liability besides the employer –
employee context?
9.5 How will a court determine whether an employee has committed a delict
within the course and scope of his employment?
9.6 Fruit and Nut (Pty) Ltd owns and operates a grocery store. It concludes a
contract with MooMoo (Pty) Ltd to provide it with fresh dairy products on
a daily basis, which Fruit and Nut sells to consumers.
Mr Ratatouille operates a French restaurant. He buys 15 kg of MooMoo
butter from Fruit and Nut. His cooks use the butter extensively in the
dishes they prepare that night at his restaurant.
Many of his patrons fall ill later that evening. Mr Ratatouille suspects that
the butter is to blame. He samples some of the butter and concludes that
it is well past its expiry date and no longer fit for human consumption.

35
A newspaper hears of the incident at Ratatouille’s restaurant and
publishes a story, alleging that several patrons had to hospitalised for
severe food poisoning. In the following months Ratatouille’s experiences
a marked drop in business.
Assuming that Ratatouille can prove that MooMoo is delictually liable for
the patrimonial harm he suffered, can MooMoo’s liability be attributed to
Fruit and Nut and/or can Fruit and Nut otherwise be held delictually liable

36
Topic 10
Reduction and Apportionment of Damages
Prescribed Reading
Before continuing with the topic, please read the following:

• Loubser et al. (2017: 528–540)
10.1 Introduction

• Explain, and distinguish between, contributory fault and joint wrongdoing.
• Understand the salient provisions of the Apportionment of Damages Act 34
of 1956.
• Explain the impact of the Matrimonial Property Act 88 of 1984 on the
apportionment of delictual damages.
What is the legal position where more than one defendant wrongfully and
culpably caused the harm suffered by the plaintiff? And what is the legal position
where the defendant is delictualy liable for the harm suffered by the plaintiff, but
the plaintiff's own negligence contributed in his harm? The aim of this topic is to
provide the answers to these questions.
The most important distinction to master in this topic is that between

contributory fault and joint wrongdoing.
Contributory fault arises when the plaintiff's own conduct contributed to the harm
he suffered as a result of the delict of another. Joint wrongdoing, is its name
would suggest, arises when more than one defendant is delictually liable for the
harm a plaintiff has suffered. It is also possible that both contributory fault and
joint wrongdoing may arise in the same set of facts.
When contributory fault or joint wrongdoing has been established, the court will
apportion the damages according to each party's degree of fault.

37
Practically speaking, in the case of contributory fault, this means that the plaintiff
may be entitled to less damages. In the case of joint wrongdoing, it means that
each defendant will be liable for a portion of the damages due to the plaintiff.
In contrast to the topics you have already considered in this course, the reduction
and apportionment of damages is primarily regulated by statute and not by the
common law. The key statute in this regard is the Apportionment of Damages
Act 34 of 1956. The common Law continues to play a role, particularly insofar as
judgments give meaning to the provisions of the Act.
To test the depth of your understanding, do the following self-assessment

exercises:
10.1 Summarise the four approaches our courts have used to apportion
damages in the case of contributory fault.
10.2 Can one apply the Apportionment of Damages Act to damages arising
from breach of contract?
10.3 Explain the impact of the Matrimonial Property Act 88 of 1984 on the
apportionment of delictual damages.

38
References
Loubser, M. & Midgley, R. 2017. The Law of Delict in South Africa: Private Law.
3rd ed. Cape Town: Oxford University Press. [ISBN: 9780 1 90 41148 0]
39
Answers to Self-Assessment Questions
Topic 1
1.1 In general the law of delict is available to natural persons and juristic
persons like a company. There is no general exception to the rule but you
should take notice of the special rules relating to juristic persons that
apply in respect of infringement of dignity, privacy and identity (see the
discussion on page 398 of the handbook) and also the position of a juristic
person when it sues for deformation.
1.2 You can find the essential elements the lex aquilia on page 29 of the
textbook. While you interrogate those essential elements also study the
essential elements of Germanic remedy for pain and suffering, the actio
iniuriarum, the actio de pauperie and the actio de pastu.
1.3 The American system of Torts (the equivalent of the law of delict) provides
for special damages in circumstances where the delict was caused within
intent. Our law focuses on the damages suffered and not on the form of
fault as the purpose of the law of delict is not to punish but to compensate.
There are counter arguments and you should motivate in your own words
whether you agree or not.
1.4 The principles of the law of delict are to a significant extent not based on
legislation but based on views taken by judges through the years. The
courts represent society and courts are often called upon to express an
opinion on principles such as the reasonable person, foreseeability and
wrongfulness.
Topic 2
No, the law of delict does not allow an action for damages in every instance
where harm was suffered. Here you should refer to page 79 of the textbook
where this issue is discussed. It is necessary to balance conflicting interests for
example reputation and free speech and therefore, although someone might
have suffered harm as a result of defamatory statements, a court may say that
the harm is not actionable as the right to free speech in a particular instance may
weigh stronger.
For a discussion of this case refer to page 79-80 of your textbook. Focus on the
essence of the judgment and focus on the views of the court in respect of the
non-patrimonial harm. it is important that you understand the difference
between patrimonial and non-patrimonial harm.

40
In short, patrimonial harm can be measured in liquidated monetary terms whilst
non- patrimonial harm cannot. This is discussed in detail from page 80 of your
textbook. This is a good example of the views of society. Do you think that society
would allow delictual claims to be instituted against manufacturers of motor
vehicles as a result of break-downs? Ask yourself whether such an action would
be reasonable and whether society would expect of manufacturers to produce
motor vehicles that never break down?
Answer this question irrespective of whether a delictual claim exists or not. Can
the damages that you have suffered as a result of your inability to utilise the
vehicle whilst being prepared be measured in monitory terms. Have you suffered
any pain and suffering? Yes, your client has suffered harm. As a result of the
injury he would incur medical expenses and his amenities of life may also be
influenced as a result of the knee injury. What about pain and suffering? You
should consider the organisers of the game, the manager of the opposing side
and the opponent himself. Consider your answer against the elements of the lex
aquilia.
Topic 3
3.1 a) In this instance you have to consider the issue of automatism and
also the issue of negligent prior conduct. Refer to the discussion on
pages 96 to 99 of your textbook to formulate your reply.
b) Your friend acted negligently. To consider if you agree of not, refer
to the discussion to negligent prior conduct referred to above.
3.2 a) You should agree that the security officer committed a delict. You
should discuss the actions of the security officer that in your view
constitute a delict.
b) There are two (2) separate acts of conduct of the security guard. In
the first instance he fails to provide the lady with directions and the
questions is whether he had a legal duty or a duty of care to do so.
It is important that you answer in your own words and motivate.
Secondly, the act of assault clearly constitutes a delict and it seems
to be a positive act and therefore a commission. Do you agree?
c) Consider the owners of the mall where the incident took place, the
employer of the security guard (vicarious liability) and the security
guard himself.
3.3 Refer to the actio de pastu on page 33 of the textbook.

41
Topic 4
4.1 Read the discussion in Minister of Police v Skosana carefully with specific
reference to the condition sine qua non test.
4.2 Study the case law discussed in your textbook and use the facts of one of
those cases to illustrate your point.
4.3 Study the case law discussed in your textbook and use the facts of one of
those cases to illustrate your point.
It is important that you are aware and understand the alternatives. We
refer to the theories of material contribution, common sense, human
experience and knowledge and increasing risk and creating opportunities
for occurrence of harm (see the discussion from page 112 of your
textbook). In answering this exercise, you should appreciate that no legal
system will hold people responsible for all the harmful consequences of
their conduct. There is an in depth discussion in Chapter 7 of your
textbook and over the years various tests have been developed. Briefly
discuss these tests.
4.5 It is important that you are aware and understand the alternatives. We
refer to the theories of material contribution, common sense, human
experience and knowledge and increasing risk and creating opportunities
for occurrence of harm (see the discussion from page 112 of your
textbook). In answering this exercise, you should appreciate that no legal
system will hold people responsible for all the harmful consequences of
their conduct. There is an in depth discussion in Chapter 7 of your
textbook and over the years various tests have been developed. Briefly
discuss these tests.
4.6 This exercise involves the causation test of reasonable foreseeability.
Refer to the discussion on page 131 of your textbook and also read the
case of Smit v Abrahams 1994 (4) SA 1 (A) 17 -19 and also 1992 (3) SA
158 (C) 163-165.
4.7 See the discussion on page 150 of your textbook.
Topic 5
5.1 Discuss the three (3) categories where youth may exclude accountability
(see page 140 of the textbook).
5.2 It is important that you understand these concepts. Study the discussion
thereof on pages 145 to 148 of your textbook before explaining the
difference in your own words.
5.3 To arrive at your answer, discuss the differences between emotional
distress and provocation as discussed on page 153 of your textbook.

42
5.4 Before you answer study the discussion of the characteristics of a
reasonable person on page 12 of the textbook.
5.5 It is important that you understand that these concepts are the pillars for
negligence and you will be able to formulate a reply once you have studies
the discussion thereof from page 157 of your textbook.
5.6 a) Yes, he did.
b) He acted negligently. Motivate why this is so and if you disagree also
motivate briefly.
c) The sudden emergency refers to the child running into the road and
the provocation refers to the pressure put on him by his friend to
take the GTI vehicle. Discuss with specific reference to a discussion
of these concepts in your textbook.
d) This question refers to foreseeability. Put yourself in the shoes of a
reasonable man and decide whether Jonathan should have foreseen
this possibility?
e) Johathan could have prevented the harm done? Why?
Topic 6
6.1 Study the discussion of policy considerations from page 190 of the
textbook.
6.2 Once you have studied the policy consideration refer to page 196 of your
textbook and to make sure that you understand table 9.2. before you
apply yourself.
6.3 Refer to the discussion of wrongfulness and the infringement of the right
on page 184 of the textbook.
6.4 Boni mores is a reference to the legal convictions prevailing in the
community. Refer to the conclusion on page 200 of the textbook.
6.5 Study paragraph 9.2 on page 178 of the textbook carefully before you
consider your answer.
Topic 7
7.1 You will find two examples on page 204 of your textbook.
7.2 A prior agreement not to claim is contractual in nature. A contract is a
bilateral, consensual act. By contrast, consent is a unilateral act. Consent
justifies the causing of harm while a prior agreement not to claim merely
excludes the recovery of damages for wrongfully caused harm. However,
both grounds of justification provide complete defences to delictual claims
for damages.
7.3 You will find the answer on page 213 of your textbook.
7.4 Provocation. Compare pages 153 and 221 of your textbook.

43
7.5 You would have to convince the court that X acted in self-defence and the
a ground of justification excluding wrongfulness has accordingly been
established. To do so, you will have to show that all the requirements of
self- defence have been met. Have all the requirements been met? What
is the significance, if any, of the fact that Z is a 5 year old child?
Topic 8
8.1 You will find the answer on pages 281-293 of your textbook. Note that
while there may be exceptional circumstances where the negligent
interference with a personal right may be actionable, the law does
generally not recognise the negligent interference with a contractual
relationship as a delict.
8.2 The court held that it needn't be established that the interference has
actually resulted in a breach of contract or amounts to an inducement to
commit such a breach. However, these are both relevant factors to
consider in assessing whether the conduct was wrongful in the
circumstances.
8.3 You will be able to work out an answer after considering pages 296 - 301
of your textbook.
Topic 9
9.1 You will find the answer on page 469 in your textbook.
9.2 No. If there is a causal connection between the plaintiff's intention or
negligence and the harm he suffered, this may provide a defendant with
a defence excluding liability. Consider the example on page 462 of your
textbook.
9.3 The judgment illustrates that a person who is employed by one person or
company may temporarily be employed by another for vicarious-liability
purposes. To determine which employer is liable, the court will consider
which employer is most closely connected to the risk-creating event.
9.4 You will find the answer on page 470 of the textbook.
9.5 Consider page 473 - 476 of your textbook.
9.6 As MooMoo is an independent contractor and not Fruit and Nut's
employee, Fruit and Nut cannot be held vicariously liable for the delict
committed by MooMoo. MooMoo's liability can therefore not be attributed
to Fruit and Nut.
Fruit and Nut may however be independently liable. To determine whether
Fruit and Nut would be independently liable, consider pages 473 - 476 of
your textbook, and the judgment of Silberman in particular.

44
Topic 10
10.1 The different approaches are set out at pages 530 - 531 of your textbook.
Which approach do you find most convincing, and why?
10.2 No. In Throughbred Breeders' Association of South Africa v Price
Waterhouse 2001 (4) SA 551 (SCA) it was held that the Act does not apply
in the contractual context. Consider page 535. What reasoning did the
court use to reach this conclusion?
10.3 Consider page 536 of your textbook

45

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Law of Delict

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©STADIO Assignment – 2024 Semester 1 LOD 301 Law of Delict

Question 1 (10 marks)

Question 2 (20 marks)

X, a cashier in a supermarket, is shot in the stomach by Y during a robbery at the

©STADIO Assignment – 2024 Semester 1 LOD 301 Law of Delict

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Mini Research Assignment

ASSIGNMENT TOTAL: 75 MARKS

©STADIO Assignment – 2024 Semester 1 LOD 301 Law of Delict

Heading Page number

Topic 1 Induction to Law of Delict 2

© STADIO (Pty) Ltd Law of Delict LOD301

Topic 7 Grounds of Justification 26

Topic 8 Delict in the Business Environment 30

Topic 9 Strict and Vicarious Liability 32

Topic 10 Reduction and Apportionment of Damages 37

ANSWERS TO SELF-ASSESSMENT QUESTIONS 40

© STADIO (Pty) Ltd Law of Delict LOD301

Welcome to the subject Law of Delict (LOD301).

© STADIO (Pty) Ltd Law of Delict LOD301

Before continuing with this topic please read the following:

After completing this topic, you should be able to:

We would concentrate in this guide on the general principles underpinning the

© STADIO (Pty) Ltd Law of Delict LOD301

Read page 4 of your textbook for more details.

1.2 The Functions of the Law of Delict

The Law of Delict has the following inherent functions:

Read pages 9 to 15 of your textbook for more detail.