One therefore cannot invoke the justification of self-defence when acting in the interests of another person, but it is possible to invoke the justification of private defence when acting in one's own interests. RETHINKING WRONGFULNESS IN THE LAW OF DELICT ANTON FAGAN* W P Schreiner Professor in the Faculty of Law, University of Cape Town I INTRODUCTION According to South African law, wrongfulness is a necessary condition for delictual liability. Damages under the lex Aquilia do not serve to assuage wounded feelings or to compensate for inconvenience or discomfort or annoyance. The law of delict has been adapted to suit the contemporary conditions in Zimbabwe. Delictual harm is usually caused, if not always directly,[8] by human conduct. Although the South African law of delict still regards fault as the foundation of delictual liability, the first signs of a development in which fault as a requirement for liability is dispensed with in certain circumstances can already be seen, and this cannot be ignored by legal theory and practice. Where harm takes the form of nervous shock, the conduct is again not wrongful unless special reasons exist to warrant liability. delict… The test, again, is objective: Would the ordinary reasonable person hearing or reading the statement understand the matter to refer to the plaintiff? The Law of Succession in South Africa J. Jamneck, C. Rautenbach. Under the Germanic remedy, one can claim in respect of physical pain, mental distress, shock, loss of life expectancy, loss of amenities of life, inconvenience and discomfort, disability and disfigurement (and the humility and sadness which arise therefrom). According to Neethling et al, a delict is defined as an “act of a person that in a wrongful and culpable way causes harm to another”. The objective-reasonableness test may be satisfied by looking at the foreseeability of such an injury. The concept of reasonable foreseeability is not founded on statistical or mathematical calculations of the extent of the risk, but on a legal evaluation of the risk created in a particular situation. The Law of Delict in South Africa, Ed Loubser and Midgley (OUP Southern Africa 2011) PQR Boberg, The Law of Delict1: Aquilian Liability. The South African law of delict engages primarily with "the circumstances in which one person can claim compensation from another for harm that has been suffered. 2. The law, and especially the law of delict, cannot shy away from these questions. Only material allegations need be substantially true, except if fraud or crime or dishonesty is alleged. Delictual conduct includes positive acts and omissions and statements. A court will not make an arbitrary award in the absence of available evidence. There are, however, certain requirements: Damages in respect of non-patrimonial loss do not serve a compensatory function, for such loss does not have an economic or pecuniary value. There must be some relationship or proximity between him and the injurer, or else some special knowledge on the part of the latter. The elements of liability under the actio iniuriarum are as follows: harm, in the form of a violation of a personality right (one’s corpus, acts of a sexual or indecent nature, and wrongful arrest and detention), dignitas (“worthiness,” “dignity” and “self-respect”), and fama (defamation); harm, in the form of a violation of a personality right (one’s corpus, acts of a sexual or indecent nature, and wrongful arrest and detention), dignitas (“worthiness,” “dignity” and “self-respect”), and fama (defamation);Intention (must be at intentional fault – no negligence) Under the action iniuriarum, harm consists in the infringement of a personality right: Defences Damages – public policy determines what should be included. 9 - Specific forms of damnum iniuria datum. According to Neethling et al, a delict is defined as an “act of a person that in a wrongful and culpable way causes harm to another”. If the defendant fails, the plaintiff must prove the impairment of dignitas. Where harm admits of exact monetary quantification, the plaintiff must produce sufficient evidence to make an accurate assessment. Labour law rules! Culpa is partly an objective and partly a subjective concept. Grounds of justification are typical circumstances which occur regularly in practice and indicate conclusively that interference with the plaintiff's legally-protected interests was reasonable and therefore lawful. The mores of the society as a whole are relevant in determining whether or not a statement is defamatory. Notify me of follow-up comments by email. Courts tend to be stricter when considering whether omissions or statements are wrongful. South African contract law — is essentially a modernised version of the Roman Dutch law of contract, [1] which is itself rooted in Roman law. Some of these are aimed at showing that the conduct was not unlawful. 2. They are practical examples of circumstances justifying a prima fade infringement of a recognised right or interest, according to the fundamental criterion of reasonableness. In the past, family law was closely connected with the law of property and succession… …   Universalium, List of country legal systems — Legal systems of the world   Civil law …   Wikipedia, Minister of Safety and Security v Hamilton — Minister of Safety and Security v Hamilton[1] is an important case in South African law, in particular the law of delict. The Law of Delict in South Africa, third edition, offers an introduction to the general principles of delictual law. Conduct will be justified as an act in private defence or self-defence if it is. Delict Notes (Term 1) 3. "[1] JC Van der Walt and Rob Midgley define a delict "in general terms [...] as a civil wrong," and more narrowly as "wrongful and blameworthy conduct which causes harm to a person. Private defence (or self-defence) is conduct directed at the person responsible for the duress or compulsion or threat. Where damages cannot be computed exactly, a court may exercise its own judgment in the matter, provided it has a factual basis for so doing. Truth is only a defence if publication is also for the public benefit. South African law does not allow a plaintiff to claim punitive damages from a defendant in a private claim, as this is seen as being contrary to public policy. If the harm takes the form of patrimonial loss, one uses the Aquilian action; if it takes the form of pain and suffering associated with bodily injury, a separate action arises, similar to the Aquilian action but of Germanic origin; finally, if the harm takes the form of injury to a personality interest (an injuria), the claim is made in terms of the actio injuriarum. Similarly, joint wrongdoers are jointly and severally liable for the loss they have caused. Introduction to Law and Legal Skills J. Barnard-Naude, L.J. It is a much more universal concept than torts but clearly much the same sort of issues are considered. He has published in the fields of delict, professional negligence, legal education and dispute resolution. Getting Started; South African Law: Overviews; Statutes; Laws; Constitutions; Gazettes; Judicial Decisions and Court Reports; Resources by Topic Toggle Dropdown. In the absence of a defence or any other factor, the harm caused is actionable. In some instances, the possibility of harm resulting, even if serious, may be so slight that precautions need not be taken at all. Microsoft Internet Explorer 11 and older will no longer be supported by Gumtree after Dec 31st, 2020. Now, however, patrimonial loss also includes monetary loss resulting from injury to the nervous system and pure economic loss. DEFINE: Delict = 5 Elements: Act Wrongful Fault Causation Damage 3 Delictual Actions (Legis Aquiliae, actio iniuriarum & action for pain and suffering) Delict & Breach of contract Delict & Crime Delict & Constitution (Carmichele-case) – NB! Such loss is non-patrimonial, in that it is intangible and does not impact negatively on the plaintiffs economic or monetary position. consent to a specific harmful act of the defendant; and. assumption of the risk of harm connected with the activity of the defendant. harm, in the form of a violation of a personality interest (one's. if the harm does eventuate, what is the extent of the damage likely to be; and. In all instances, the court will consider possible defences. c) The law of delict belongs to the part of private law known as the “law of obligations” d) The law of delict consists of a set of separate delicts. Fair comment cannot be wrongful. In respect of a claim in terms of the lex Aquilia, there is only one function: to restore the plaintiff's patrimony and, as far as possible, to place him in the position he would have occupied in had the delict not been committed. It existed in the Netherlands province of Holland from the 15th to the early 19th century and was carried …   Universalium, United Kingdom company law — Beside the River Thames, the City of London is a global financial centre. Money is considered an adequate replacement for the lost patrimony. Home » BLOG » South African Law Of Delict, Home » BLOG » Uncategorized » South African Law Of Delict. 1 - General introduction. Liability for the loss is shared by those who are responsible for it. In addition, the consent must not have been socially undesirable—not seduction, or murder for insurance purposes; and. Where the risk of harm is very small, or the harm not really serious, the reasonable person will not foresee the possibility of harm to others. Damages in delict are divided into: patrimonial/special damages (including medical costs, loss of income and the cost of repairs); non-patrimonial damages/general damages (including pain and suffering, disfigurement, loss of amenities and injury to personality); The reference may be by implication, where the facts are well-known, or easily ascertainable. the degree or extent of the risk created by the actor's conduct; the gravity of the possible consequences if the risk of harm materialises; the burden of eliminating the risk of harm. Conduct is usually wrongful if it causes harm to person or property. SOUTH AFRICAN BROADCASTING CORPORATION Respondent Coram: F H Grosskopf, Harms, Olivier, Zulman, JJ A and Mthiyane, A J A Heard: 13 November 2000 Delivered: 29 November 2000. An act of defence is justified only if it was reasonably necessary for the purpose of protection of the threatened or infringed interest. Under the South African common law, the only recourse available to consumers who suffer harm or sustain an injury as a result of a defective product, is a claim under the law of contract or the law of delict. LAW OF DELICT – Overview (LWDL321) LO1: INTRODUCTION. [9] The person responsible must have legal capacity, and his conduct must be voluntary, much as in criminal law. The test is objective: Would the words tend to lower the plaintiff in the estimation of right-thinking people and members of society generally? The attack must have constituted a real or imminent infringement of the defendant's rights. Unlike the last-mentioned action which developed in Roman-Dutch law, the first two remedies had already played an important role in Roman law.[6]. The Supreme Court of Appeal (SCA) has accepted the conditio sine qua non, or "but-for" test, as the one to be applied. Contributory negligence is not a defence; it does not extinguish the defendant's liability. Politics A. Heywood. One must, Intention should not be confused with malice or motive. Dear valued client We are pleased to announce that Joubert Galpin Searle's offices are open, and adhering to the strict regulations as directed by Government. It reflects the law's disapproval of the defendant's conduct. how real is the risk of the harm eventuating? The elements of harm and conduct are fact-based inquiries, while causation is part-factual and part-normative, and wrongfulness and fault are entirely normative: that is, value-based, in that they articulate a wider societa… It must be a wrongful and overt act. Find law of delict 7th edition in South Africa! See our privacy policy. Summary: Claim for damages in delict - whether element of causation proved. Action for Pain and Suffering Relates to pain and suffering and psychiatric injury – derived partly from the Aquilian action, and partly from the use of reparative fines. He is a member of the Academy of Science of South Africa and an advocate of the High Court of South Africa. Comprehensive in scope, while clear and concise, the text provides a rich contextual framework which supports understanding and application of the principles. 4 - Fault (and contributory fault) 5 - Causation. Introduction to Law and Legal Skills J. Barnard-Naude, L.J. 2. Causation: factual causation and legal causation. The defendant can then try to rebut this presumption. If the burden of eliminating a risk of harm outweighs the magnitude of the risk, the reasonable person would not take steps to prevent the occurrence of the foreseeeable harm. Bregman Moodley Attorneys Inc. 2015/089214/21, Physical Address: Suite 314, 3rd Floor, Office Towers, Killarney Mall, 60 Riviera Road, Killarney, Johannesburg, South Africa, Associates: Melani Scholtz, Sasha Goldstein & Abdul Buckus. Faculty of Law Law of Delict 2018 Course Teacher: Phumelele Jabavu Office: S Tel: 046 603 7246 Email: p.jabavu@ru.ac.za ##### INTRODUCTION. Publication is not required, and the defences are the same as for defamation. For patrimonial loss to be actionable in the case of emotional shock, it must have been intentionally or negligently inflicted. Comprehensive in scope, while clear and concise, the text provides a rich contextual framework which supports understanding and application of the principles.. Siber Ink. South African law does not allow a plaintiff to claim punitive damages from a defendant in a private claim, as this is seen as being contrary to public policy. The dissertation seeks to establish whether the legislative reform of the South African law of delict through the creation of such a fund is justified and appropriate. The elements of delict are: Conduct, which means an act or omission; Wrongfulness — according to Neethling et al, ‘‘wrongful’ may be expressed as unreasonable or legally reprehensible” Exaggeration is allowed, but not if calculated to convey the wrong impression. Causation is assumed to be present. This includes insult (iniuria in the narrow sense), adultery, loss of consortium, alienation of affecton, breach of promise (but only in a humiliating or degrading manner), violation of chastity and femininity (as in the cases of peeping toms, sexual suggestions in letters, indecent exposure, seduction, wrongful dismissal of an employee in humiliating terms and unwarranted discrimination on grounds of sex, colour or creed). Specific forms of delict. It must not have been a trivial emotional experience. The sort of circumstances, however, which the Courts often look to in cases such as this in deciding what degree of foreseeability must be proved by the plaintiff before a defendant can be held responsible for the resultant damage are these: If the likelihood of harm is relatively great, or the consequences serious, the possibility of harm will normally be reasonably foreseeable. Van der Walt and Midgley list the elements of a delict as follows: 1. Conduct usually takes the form of statements, either oral or in writing; nevertheless, other forms of conduct, such as physical contact or gestures, could also arise. Infringement of fama is the impairment of reputation, better known as defamation. Dignitas is a generic term meaning "worthiness," "dignity" and "self respect," and compromises related concerns like mental tranquillity and privacy. The question to be answered is whether or not an ordinary, decent, right-thinking person would consider such conduct to be insulting. One of the reasons why the law distinguishes between different forms of conduct is that this affects the way the courts deal with the question of wrongfulness. There are four basic considerations in each case which influence the reaction of the reasonable person in such situations: If the magnitude of the risk outweighs the utility of the conduct, the reasonable person would take measures to prevent the occurrence of harm. If the actor fails to take such measures, he acts negligently. Summary: Claim for damages in delict - whether element of causation proved. how the act was committed (intention); and, Ignorance as to the wrongful character of the conduct, or a, In exceptional circumstances a person may be, The principles applicable to instances of intoxication apply equally to cases involving, reasonable precautions to prevent the occurrence of such foreseeable harm; and. It is, for present purposes, always assumed. But an injuria or an infringement of a right of privacy could still be present. In the broadest definition, a contract is an agreement entered into by two or more parties with the serious intention of creating a… …   Wikipedia, Law of South Africa — The Law of South Africa has a hybrid or mixed legal system, made of the interweaving of a number of distinct legal traditions: a civil law system inherited from its Dutch colonisers, a common law system from its English colonisers, and indigenous …   Wikipedia, Delict — In civil law, a delict is an intentional or negligent act which gives rise to a legal obligation between parties even though there has been no contract between them. They are another expression of the legal convictions of the society. Access study documents, get answers to your study questions, and connect with real tutors for PVL 3703 : Law of Delict South Africa at University Of South Africa. The Law of Contract in South Africa D. Hutchison, C. Pretorius. The claims are usually embodied in one action, and no distinction is drawn between the Aquilian action and that of pain and suffering.