Private Law 373: Year Notes
,Introduction
Examples of delicts
1. Assault
2. Defamation
3. Privacy infringement
4. Motor vehicle accidents
5. Pure economic loss
6. Defective products
Basic function
● Main aim of delictual law is compensation
Context
Distinguish from criminal law and contract law
● Contract law - you enter into a contract voluntarily
● Criminal law - aim is punishment, not compensation. Also between the State and an
accused, rather than individuals.
General point of departure regarding harm
● Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA
○ The first principle of the law of delict, which is so easily forgotten and hardly
appears in any local text on the subject is that everyone has to bear the loss
he or she suffers.
● The law of delict is an exception to this - shifts the loss to a different person, and this
person must pay for the harm - this happens when the elements of delictual liability
are met
○ Harm
■ Specific grounds which this requirement encompasses
○ Conduct
○ Causation
■ Factual causation
■ 'But for' test
■ Problem - sometimes person would have been injured injury
■ Legal causation
○ Fault
■ Problems with 'reasonable person'
■ Intention and negligence are difficult to prove
○ Wrongfulness
■ Don't follow the textbook
● Corrective justice
○ Is this what the law of delict is trying to achieve?
○ Person at fault must take moral and legal responsibility and repay victim for
harm they've suffered
○ Some recognisable interests can't be measured in money e.g. defamation
,Fault-based liability
● Common-law delictual liability
Faultless liability
● Statutory liability
○ Allows the claim to succeed even if fault hasn't been proven
● Defective products
○ Consumer Protection Act - harm as the result of a defective product
The nature of the law of delict
● Compensation
○ Corrective justice
● Regulation
○ Influence behavioural pattern
■ Hasn't been proven that the possibility of a delictual claim against you
will change your actions - not preventative
● Morality
○ Personal responsibility
Definitions of a delict
● Van der Merwe & Olivier: a delict is understood to be a wrongful and culpable act that
causes another harm or infringes another's personality interest
● Boberg: the above regards 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 an employer for the delicts of his employee) are not
delictual, but arise ex variis causarum. For the same reason an interdict (which can
be obtained without showing fault) does not seem to then a delictual remedy. There
seems to be no warrant for this curtailment of the ambit of delict.
● Neethling, Potgieter, Visser: Boberg defines a delict as the ‘infringement of another’s
interests.’ This description is, however, both incomplete and misleading. On the one
hand there is an omission to state fault as a general delictual requirement, and on the
other hand the erroneous impression is created that all individual interests, and not
only those that are legally recognised and protected, are relevant in this regard.’
● Van der Walt & Midgley: In general terms a delict can be defined as civil wrong...A
more narrow definition considers a delict to be wrongful and blameworthy conduct
which causes harm to a person.
● Where you cause harm through your conduct, in a culpable or wrongful manner, to
another person, you have committed a delict - Wessels' definition
● Fose v Minister of Safety and Security
○ “[The] objectives of the law of delict differ fundamentally from those of
constitutional law. The primary purpose of the former is to regulate
relationships between private parties whereas the latter, to a large extent,
aims at protecting the chap 3 rights of individuals from State intrusion.
Similarly, the purpose of a delictual remedy differs fundamentally from that of
a constitutional remedy. The former seeks to provide compensation for harm
caused to one private party by the wrongful action of another private party
whereas the latter has as its objective:
, ■ (a) the vindication of the fundamental right itself so as to promote the
values of an open and democratic society based on freedom and
equality and respect for human rights;
■ (b) the deterrence and prevention of future infringements of
fundamental rights by the legislative and executive organs of State at
all levels of government;
■ (c) the punishment of those organs of State whose officials have
infringed fundamental rights in a particularly egregious fashion; and
■ (d) compensation for harm caused to the plaintiff in consequence of
the infringement of one or more of the plaintiff's rights entrenched in
chap 3.”
○ Person had suffered harm as a result of the employee of the Minister of the
Safety and Security
○ Claimant also wanted punitive damages - CC said no - not recognised in
South Africa, because there's a difference between law of delict and criminal
law
○ Distinction between law of delict and constitutional law
The functions of the law of delict
● Compensation
○ Successful?
○ The Compensation for Occupational Injuries and Diseases Act
○ Employers have to pay into a fund that pays out people who are injured or get
a disease as a result of their employment -> no delictual claim against
employer
● Protect certain interests?
● Initially
○ Body and things
● Development
○ Mental health
■ This is an interest newly protected by the law of delict
○ Business interests
○ Pure economic loss
○ Privacy and identity
● Promote social order and cohesion
● RL: penal function
● Modern SA law: Fose
● Prevents private vengeance
● Educate and reinforce values
○ Normative character
■ People should take responsibility for the consequences of their deeds
○ Which values?
■ Indirectly - respect other people's property, reputation, bodies etc.
● Provide socially acceptable compromises between conflicting moral views
○ Defamation
■ E.g. this versus journalistic freedom of expression
○ Grounds of justification
○ Pure economic loss
● Deterrence
○ Successful?
■ Defamation
■ Motor vehicle accidents
,Introduction
Examples of delicts
1. Assault
2. Defamation
3. Privacy infringement
4. Motor vehicle accidents
5. Pure economic loss
6. Defective products
Basic function
● Main aim of delictual law is compensation
Context
Distinguish from criminal law and contract law
● Contract law - you enter into a contract voluntarily
● Criminal law - aim is punishment, not compensation. Also between the State and an
accused, rather than individuals.
General point of departure regarding harm
● Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA
○ The first principle of the law of delict, which is so easily forgotten and hardly
appears in any local text on the subject is that everyone has to bear the loss
he or she suffers.
● The law of delict is an exception to this - shifts the loss to a different person, and this
person must pay for the harm - this happens when the elements of delictual liability
are met
○ Harm
■ Specific grounds which this requirement encompasses
○ Conduct
○ Causation
■ Factual causation
■ 'But for' test
■ Problem - sometimes person would have been injured injury
■ Legal causation
○ Fault
■ Problems with 'reasonable person'
■ Intention and negligence are difficult to prove
○ Wrongfulness
■ Don't follow the textbook
● Corrective justice
○ Is this what the law of delict is trying to achieve?
○ Person at fault must take moral and legal responsibility and repay victim for
harm they've suffered
○ Some recognisable interests can't be measured in money e.g. defamation
,Fault-based liability
● Common-law delictual liability
Faultless liability
● Statutory liability
○ Allows the claim to succeed even if fault hasn't been proven
● Defective products
○ Consumer Protection Act - harm as the result of a defective product
The nature of the law of delict
● Compensation
○ Corrective justice
● Regulation
○ Influence behavioural pattern
■ Hasn't been proven that the possibility of a delictual claim against you
will change your actions - not preventative
● Morality
○ Personal responsibility
Definitions of a delict
● Van der Merwe & Olivier: a delict is understood to be a wrongful and culpable act that
causes another harm or infringes another's personality interest
● Boberg: the above regards 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 an employer for the delicts of his employee) are not
delictual, but arise ex variis causarum. For the same reason an interdict (which can
be obtained without showing fault) does not seem to then a delictual remedy. There
seems to be no warrant for this curtailment of the ambit of delict.
● Neethling, Potgieter, Visser: Boberg defines a delict as the ‘infringement of another’s
interests.’ This description is, however, both incomplete and misleading. On the one
hand there is an omission to state fault as a general delictual requirement, and on the
other hand the erroneous impression is created that all individual interests, and not
only those that are legally recognised and protected, are relevant in this regard.’
● Van der Walt & Midgley: In general terms a delict can be defined as civil wrong...A
more narrow definition considers a delict to be wrongful and blameworthy conduct
which causes harm to a person.
● Where you cause harm through your conduct, in a culpable or wrongful manner, to
another person, you have committed a delict - Wessels' definition
● Fose v Minister of Safety and Security
○ “[The] objectives of the law of delict differ fundamentally from those of
constitutional law. The primary purpose of the former is to regulate
relationships between private parties whereas the latter, to a large extent,
aims at protecting the chap 3 rights of individuals from State intrusion.
Similarly, the purpose of a delictual remedy differs fundamentally from that of
a constitutional remedy. The former seeks to provide compensation for harm
caused to one private party by the wrongful action of another private party
whereas the latter has as its objective:
, ■ (a) the vindication of the fundamental right itself so as to promote the
values of an open and democratic society based on freedom and
equality and respect for human rights;
■ (b) the deterrence and prevention of future infringements of
fundamental rights by the legislative and executive organs of State at
all levels of government;
■ (c) the punishment of those organs of State whose officials have
infringed fundamental rights in a particularly egregious fashion; and
■ (d) compensation for harm caused to the plaintiff in consequence of
the infringement of one or more of the plaintiff's rights entrenched in
chap 3.”
○ Person had suffered harm as a result of the employee of the Minister of the
Safety and Security
○ Claimant also wanted punitive damages - CC said no - not recognised in
South Africa, because there's a difference between law of delict and criminal
law
○ Distinction between law of delict and constitutional law
The functions of the law of delict
● Compensation
○ Successful?
○ The Compensation for Occupational Injuries and Diseases Act
○ Employers have to pay into a fund that pays out people who are injured or get
a disease as a result of their employment -> no delictual claim against
employer
● Protect certain interests?
● Initially
○ Body and things
● Development
○ Mental health
■ This is an interest newly protected by the law of delict
○ Business interests
○ Pure economic loss
○ Privacy and identity
● Promote social order and cohesion
● RL: penal function
● Modern SA law: Fose
● Prevents private vengeance
● Educate and reinforce values
○ Normative character
■ People should take responsibility for the consequences of their deeds
○ Which values?
■ Indirectly - respect other people's property, reputation, bodies etc.
● Provide socially acceptable compromises between conflicting moral views
○ Defamation
■ E.g. this versus journalistic freedom of expression
○ Grounds of justification
○ Pure economic loss
● Deterrence
○ Successful?
■ Defamation
■ Motor vehicle accidents
