PVL3703_FINAL EXAM PACK 2020.

PVL3703_FINAL EXAM PACK 2020. PVL3703 Law Of Delict South Africa. Name the requirements for the granting of an interdict:  There must be an act by the respondent 10 | P a g e  The act must be wrongful  No other remedy must be available 5.2. Name the requirements of the action de pauperie:  the defendant must be the owner of the animal when the damage is inflicted  the animal must be a domestic animal  the animal must act contrary to its own nature when inflicting damage;  the prejudiced person or his property must be lawfully present at the location when the damage in inflicted. 5.3. Name the requirements for vicarious liability:  There must be an employer-employee relationship at the time the delict was committed  The employee must act within the scope of his employment when the delict is committed  The employee must commit a delict. 5.4. Explain the principle of “mitigation of loss” The plaintiff cannot recover damages for a loss which is the factual result of the defendant’s conduct, but which could have been prevented if the plaintiff had taken reasonable steps. PVL3703 MAY/JUNE 2019 11 | P a g e SECTION A 1. 3 2. 2 3. 4 4. 4 5. 2 6. 4 7. 4 8. 3 9. 1 10. 1 11. 3 12. 1 13. 2 14. 1 15. 2 16. 4 17. 1 18. 2 **** (ACTION FOR PAIN AND SUFFERING) 19. 2 20. 4 SECTION B Question 1 12 | P a g e 1.1. A delict is an act of a person, which in a wrongful and culpable way causes harm to another. 1.2. Patrimonial loss Non-patrimonial loss (Injury to personality) 1.3. Requirements for vicarious liability:  There must be an employer-employee relationship at the time the delict was committed  The employee must act within the scope of his employment when the delict is committed  The employee must commit a delict 1.4. Requirements of the action de pastu  The defendant must be the owner of the animal when the damage is caused  Animal must cause damage by eating plants  The animal must act of its own volition when causing the damage. 1.5. The difference between a delict and a contract: DELICT:  Primary remedy = damages/ claim for compensation BREACH OF CONTRACT  Primary remedy = performance of the contract 1.6. Difference between a “constitutional wrong” and a “delict.” Constitutionality delict deals with the infringement of a fundamental right per se constitute a “delict”. A clear distinction should be made between a constitutional 13 | P a g e wrong and a delict. The requirements for a delict is necessarily also a constitutional wrong differ materially. Not every delict is necessarily also a constitutional wrong and vice versa. Unlike a delictual remedy which is aimed at compensation, a constitutional remedy is directed at affirming, enforcing, protecting and vindicating fundamental rights and at preventing or deterring future violations. Question 2 An Act consists of a voluntary human commission or omission: Elements: 14 | P a g e 1. Human act 2. Voluntary conduct: the act must have been performed voluntarily- the wrongdoer must have had control over his muscular movements. 3. Commission or omission. Voluntary means the bodily movements must be susceptible to control of the will, that is, the person must be able to control his/her muscular movements by means of his/her will. Body movements need to be willed to be voluntary, nor do they need to be rational or explicable. The defence of automatism excludes voluntariness, and this means that the relevant movements were mechanical and the person could not control them by his/her will. Factors that can induce a state of automatism include blackout and epileptic fit. According to Molefe v Mahaeng 1999 (1) SA 562 (SCA), the defendant does not bear the onus to prove that he was in a state of so-called sane automatism. The onus is on the plaintiff to prove that the defendant acted voluntarily. If we apply these principles to the facts supplied in the question, we can conclude that Tumelo did not act voluntarily when he stabbed one of his friends. However, the situation will indeed change if Tumelo had been receiving medical treatment for diagnosed insomnia, but failed to take his medication on that particular occasion. A person cannot rely on automatism if he/she intentionally placed himself/herself in a mechanical state; this is known as the actio libera in causa (antecedent liability). Furthermore, a person cannot rely on automatism if he/she negligently placed himself/herself in a mechanical state. In the adapted facts, Tumelo was probably negligent, A reliance on automatism would fail in such a scenario and Tumelo will be held liable. He acted in terms of the law of delict.