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Law of Delict (PVL3703) Summary Notes 2019
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Law of Delict (PVL3703) notes comprising of the study guide and textbook - All 30 study units and case law.
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LAW OF DELICT (PVL3703) NOTESPART 1: Introduction to the Law of Delict
Study unit 2: General Introduction
A delict (wrongful conduct) is the act of a person which in a wrongful (legally reprehensible) and culpable
(legally blameworthy) way causes loss (damage) to another.
The law of delict determines under which circumstances a person can be held liable for the damage/loss
he/she has caused another. Role of the law of delict to indicate which interests are recognised by the law,
under which circumstances they are protected against infringement (when impairment of legally
recognised interest constitutes a delict) and how such a disturbance in the harmonious balance of
interests may be restored.
The basic premise is that the person prejudiced must bear the damage/harm himself. That damage (harm)
rests where it falls - each person must bear the damage he suffers (res perit domino).
Not all cases where damage has been caused give rise to delictual liability. As a point of departure, the law
expects me to personally bear the damage I suffer, I can’t hold anybody else responsible for this (except
where I’m insured against the resulting damage, in which case the insurer must take up the burden of
damage in terms of the contract of insurance).
However, a wrongdoer is responsible for damage that he has caused another. The consequence of damage
caused by a delict is that the prejudiced person doesn’t have to bear the loss. The wrongdoer (person who
caused damage) is held liable by the law to compensate the prejudiced person for the damage. Wrongdoer
has an obligation to make compensation for damage suffered, the person prejudiced has a corresponding
right to claim compensation. Thus, an obligation (obligatio) between the two parties is created. The law of
delict belongs to the law of obligations part of private law.
General requirements for delictual liability, the forms that a delict can assume are legion: interference
with another’s property, body, freedom, good name, honour, privacy, feelings, earning capacity and trade
secrets are egs. of ways in which a delict can occur.
The mere fact that a person has caused another to suffer damage is insufficient to constitute a delict for
which he may be held liable. To found liability, requirements for [or elements of] a delict must be met.
General requirements for [or elements of] a delict are: 1) the act, 2) wrongfulness, 3) fault, 4) causation
and 5) damage/harm.
1. Must have been some act/conduct on the part of the person (wrongdoer/defendant) against whom the
prejudiced party (plaintiff) wishes to litigate. It’s inconceivable that someone can be delictually injured
unless there has been some act/conduct by another. Hence the term ‘‘wrongful act’’.
2. Act must’ve been wrongful (this may be regarded as the essence of a delict). This means that the
wrongdoer must’ve acted in a legally reprehensible, unlawful or unreasonable way. An act is wrongful if
wrongdoer has acted in conflict with the community’s conception of what’s right (the boni mores). An
act is in conflict with the community’s norms when the subjective right of the prejudiced party has been
violated, or a legal duty to prevent the injury has been breached.
3. Must have been fault on wrongdoers part. This means that he must be legally blameworthy for having
acted wrongfully. The law blames the person if he willed the damage in the knowledge that he was
acting wrongfullly (ie if he acted intentionally), or if he didn’t conform to the standard of care required
by the law and thus caused the damage through his negligence. Thus our law knows two forms of fault:
intention and negligence.
,4. Must have been a causal connection between act of defendant and damage suffered by plaintiff. This
means that the act must’ve caused the damage/loss. Two forms of causation are distinguished: factual
and legal.
5. Plaintiff must have suffered damage. Damage can take on 1 of 2 forms: patrimonial loss (damnum
iniuria datum) - a reduction of financial power; or injury to personality (iniuria) - an infringement of an
aspect of personality, eg. a good name.
All 5 elements must be present before a defendant may be delictually liable. Therefore, a plaintiff must
prove all 5 elements if he wishes to obtain judgment in his favour in a case dealing with an alleged delict.
However, in a case where only some of the delictual elements are disputed by the defendant, the plaintiff
need not prove all the elements since the defendant admits that some are present. If the defendant shows
that 1 or more of the 5 delictual elements aren’t present, he can’t be held delictually liable. However,
there are some exceptions to this rule. In exceptional cases a wrongdoer can be delictually liable for the
wrongful causation of damage, even if he had no fault. This is called liability without fault or strict liability.
Furthermore, an interdict (a court order to prevent the causing or continued causing of damage) can be
issued by court in absence of proof of the elements of fault, causation or damage.
Various remedies are available to a person who’s prejudiced/threatened by the delict (or wrongful deed)
of another. If the person has already suffered harm, he may institute an action to be compensated for the
damage. There are 3 delictual actions (classical delictual actions) in our law: the actio legis Aquiliae, the
actio iniuriarum and the action for pain and suffering. As a general rule, the presence of all 5 delictual
elements is a prerequisite for a successful reliance on any of these 3 actions. However, the actions differ
from each other in respect of the form of damage for which they are instituted and the form of fault that
must be proved.
Actio legis Aquiliae: Claim damages for wrongful and culpable causing of patrimonial loss = intention or
negligence must be proved.
Actio iniuriarum: Claim satisfaction for wrongful and intentional injury to personality (personality
infringements) = intention must be proved.
Action for pain and suffering: Claim compensation for wrongful and culpable impairment of bodily injuries
or physical-mental integrity = intention or negligence must be proved.
Apart from these 3 actions, our law also provides for actions with which damage may be recovered, but for
which the element of fault isn’t a requirement. The last delictual remedy is the interdict. Unlike the
delictual actions, this remedy isn’t instituted to recover loss already suffered. The interdict is applied for to
prevent harm. To apply successfully for an interdict, an applicant must prove 2 delictual elements - that an
act has already been committed or will be committed, and that it’s wrongful.
PART 2: General principles of the law of delict
Study unit 3: Conduct
Study unit 4 – 14: Wrongfulness
Study unit 15 – 20: Fault
Study unit 21 – 23: Causation
Study unit 24: Damage
,Study unit 3: Conduct
To constitute a delict, one person (doer/actor) must’ve caused damage/harm to another person (person
suffering the loss) by means of an act or conduct.
Conduct is a general prerequisite for delictual liability. Damage must be caused by something, and in the
case of delictual liability it’s caused by conduct. Conduct constitutes the damage-causing event in a delict.
Nature and characteristics of conduct
Conduct is defined as a voluntary human act or omission. Conduct/act has 3 characteristics:
(a) Only an act of a human being (not an animal) is accepted as “conduct”. Where a human uses an animal
as an instrument in the commission of a delict, a human act is still present. A juristic person (a company,
university, public school, statutory body) may act through its organs (humans) and thus may be held
delictualy liable for such actions. Rule used to determine whether human conduct may be attributed to a
juristic person for delictual liability:
An act performed by or at the order of or with the permission of a director, official or servant of a juristic
person in the exercise of his duties or functions in advancing or attempting to advance the interests of the
juristic person, is deemed to have been performed by the juristic person.
(b) Human action only constitutes conduct if it’s performed voluntarily. Voluntariness implies person has
sufficient mental ability to control his muscular movements. Voluntariness doesn’t mean that a person
must’ve willed/desired his conduct.
Eg. X forgets to warn other people that an electric current has been switched on and thus someone is
electrocuted, X clearly hasn’t willed/desired this omission; however his conduct is nevertheless voluntary
because he was able to utter a warning. (S v Russell)
The requirement of voluntariness doesn’t mean that a person’s conduct should be rational or explicable.
Conduct by an infant or someone suffering from a mental disease is usually voluntary although the doer
may escape delictual liability, either because he lacks accountability or because fault is absent. Where a
defendant claims that for some reason he didn’t act voluntarily, he is raising the defence of automatism.
(c) Conduct may be in the form of either a positive (active) act (a commissio) or an omission (omissio).
The defence of automatism
The act of the wrongdoer must be voluntary to give rise to delictual liability. By raising this defence, a
defendant attempts to show that, according to the law, he didn’t act. Defendant may argue that the
conduct complained of doesn’t satisfy the requirement of voluntariness. He relies on the defence of
automatism - that he acted mechanically. Conditions that may cause a person to act involuntarily as they
render him incapable of controlling his bodily movements: absolute compulsion (vis absoluta), sleep,
unconsciousness, fainting fit, epileptic fit, serious intoxication, blackout, reflex movements, strong
emotional pressure, mental disease, hypnosis, and a heart attack.
Molefe: The defendant doesn’t bear the onus to prove that he was in a state of automatism, the plaintiff
must prove that the defendant acted voluntarily.
Dhlamini: X was sleeping on the floor with others when he had a nightmare and then stabbed and killed Y
while under the influence of his dream. He wasn’t convicted of any crime.
Mkize: X stabbed and killed Y while X was having an epileptic fit. He was acquitted of murder.
Du Plessis: X (72) was charged with negligent driving as he had injured a pedestrian. He experienced a
blackout due to low-blood pressure. He was found not guilty.
, Actio libera in causa: Defence of automatism won’t succeed if defendant intentionally created the
situation in which he acts involuntarily in order to harm another. The defendant will be held liable for his
culpable conduct in creating the state of automatism which resulted in damage to the plaintiff.
Defendant may not successfully rely on the defence of automatism where he was negligent regarding his
automatic “conduct”. Where the reasonable man would’ve foreseen the possibility of causing harm while
in a state of automatism, egs. drinking alcohol while knowing or reasonably foreseeing that will later drive
a motor vehicle, knowing that harm may be caused during a spell of sleepwalking and failing to take
necessary precautions, knowing may suffer an epileptic fit and still driving a motor vehicle, and sleeping
next to a new-born baby where it’s reasonably foreseeable that the mother may roll on to the child in the
night while asleep and cause baby to die of suffocation.
Victor: X was convicted of negligent driving despite causing the accident during an epileptic fit, as he’d
been suffering fits for 13 years and the reasonable man would’ve foreseen the possibility of causing harm
while in a state of automatism. In this case, X knew he may suffer an epileptic fit and still drove a motor
vehicle.
In “sane” automatism (where automatism isn’t a consequence of mental illness), onus is on plaintiff to
prove that defendant acted voluntarily and not mechanically. However, if defendant raises automatism
resulting from mental illness as a defence, defendant will bear onus to prove absence of conduct.
Automatism doesn’t mean that there’s no voluntary act whatsoever by the defendant which caused the
damage, but only that the conduct in question wasn’t voluntary. Only the voluntary act closest to the
harmful consequence is of relevance, and it’s therefore unnecessary to consider prior voluntary acts.
Commission (commissio) and omission (omissio)
Conduct may be in the form of a commission or an omission.
Van der Walt and Midgley explain the position between conduct of a positive nature and conduct by way
of an omission:
Legal nature of conduct is determined by the particular context in which it occurs.
An ‘omission’ or failure to take certain measures in the course of some activity isn’t a form of
conduct, but may indicate that the action was negligently performed.
Inaction as a part of some positive activity can constitute/indicate negligence on actors part.
Negligence is a failure to take reasonable precautions.
Many ‘omissions’ are merely indications of legally deficient positive conduct.
To drive a car through a stop street into another car constitutes a course of positive conduct,
namely the driving of a car. The failure to stop (‘omission’) indicates negligent or deficient positive
conduct – culpa in faciendo.
The mere fact that linguistic alternatives enable us to describe the positive occurrence in a
negative way (eg. ‘the driver failed or omitted to stop at the stop street’) is legally irrelevant in the
determination of the conduct.
Where a person fails to take precautions against the occurrence of damage and his failure isn’t an integral
part of positive conduct, egs. owner of land failing to exercise any control over a fire which has started on
his land without his doing; a policeman neglecting to protect someone who’s being assaulted by a third
person; police failing timeously to disarm a dangerous person who’s in lawful possession of firearms and
who then causes damage; police failing to prevent a dangerous criminal from escaping and he then rapes a
woman; police failing to take an injured person in a police cell for medical treatment and he then sustains
brain damage; police and prosecutor failing to oppose the bail application of a dangerous criminal who
seriously assaults a woman after his release, or a champion swimmer seeing a child drowning in a pool and
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