PVL3703 EXAM PACK.

PVL3703 EXAM PACK. PVL3703 - Law Of Delict. Explain in 4 or 5 sentences how Chpt. 2 of the Constitution may influence the law of delict The Constitution is the supreme law of RSA. Chapter2 (BOR) is applicable to all law, incl Delict. Vertical & horizontal application of Const can take place directly or indirectly. Fundamental rights in terms of the Law of Delict: • Right to property • Right to life • Right to freedom and security of person • Right to privacy • Right to human dignity • Right to equality • Right to freedom of expression • Right to freedom of religion, belief, opinion • Right to assembly, demonstration, picket, petition • Right to freedom of association • Right to freedom of trade, occupation, profession Not every delict is necessarily a constitutional wrong. Constitutional remedies are aimed at affirming/enforcing/protecting/vindicating fundamental rights and deterring future violations of Ch2. Write brief notes on the indirect application of the BOR to the law of delict (5) Indirect application is implemented/applicable eg to open-ended/flexible delictual principles, namely: • Boni mores test for wrongfulness • Imputability test for legal causation • Reasonable person test for negligence • Policy consideration eg reasonableness, fairness and justice The act 7. Define an act Conduct is prerequisite for delictual liability. Conduct is a voluntary human act or omission. 8. Enumerate the requirements of an act and apply them to practical factual examples - Where a human uses an animal as an instrument to a commission a delict, a human act is still present. - A juristic person acts through its organs: an act performed by or at the order if 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 if the juristic person, is deemed to have been performed by the juristic person. - Voluntariness implies that the person is question has the mental ability sufficiently to control his muscular movements. - Voluntariness does not mean that a person must have willed or desired his conduct. GR Tutorials Page 2 of 50 web: email: Tel: 1/9 cell: 3 Page | 3 3 9. Explain the requirements of the defences of automatism and apply them to practical factual examples - This defence suggests that the person acted mechanically. - The following conditions may cause a person to act involuntary in hat they render him incapable of controlling his bodily movements: - absolute compulsion (vis absoluta- exerted by human agency or through forces of nature), - sleep, - unconsciousness, - a fainting fit, - a epileptic fit, - serious intoxication, - a blackout, - reflex movements, - strong emotional pressure, - mental disease, - hypnosis - a heart attack and certain other conditions. Relative compulsion ( vis compulsive- no choice) - The defence of automatism will not succeed if the defendant intentionally created the situation in which he acts involuntarily in order to harm others. - The defendant will not be able to successfully rely of the defence of automatism where he was negligent with regard to his automatic conduct- where the reasonable man would have foreseen the possibility of him causing harm while in a state if automatism. - Where the automatism is not a consequence of mental illness the onus is on the plaintiff to prove that the defendant acted voluntarily and therefore not mechanically - If a defendant raises automatism resulting fro mental illness, the defendant will probably bear the onus to prove the absence of such conduct - Automatism does not mean that there is no voluntary conduct whatsoever by the defendant which caused the damage, but only that the conduct in question was not voluntary. 10. Briefly explain the difference between a commission and an omission - Liability for an omission is generally more restricted than liability for a commission. - Commission is an act performed while an omission is a failure to perform a certain act. - The law is hesitant to find that there was a legal duty on someone to act positively and so to prevent damage to another. - Omission is a failure to take any positive step whatsoever to prevent damage to other people. Wrongfulness 11. Describe the 2 steps involved in an inquiry into wrongfulness Dual investigation: GR Tutorials Page 3 of 50 web: email: Tel: 1/9 cell: 3 Page | 4 4 - Whether a legally recognised individual interest has in fact been encroached upon- the act must have caused a harmful result. - Legal norms must be used to determine whether such prejudice occurred in a legally reprehensible or unreasonable manner. Individual interest: an individual interest which is protected by law