Law of Delict

Lecture 1
Tayla Waterworth
t.Waterworth@ru.ac.za

Prescribed textbook
M Loubser et al The Law of Delict in South Africa
(2010) Oxford University Press: Cape Town
Useful for basic principles, but be aware that it
goes into more detail than is necessary for this
course.

What is delict?
delict provides a system for compensating those who
have been harmed by the conduct of others. (Loubser et
al. p4)
Roman law recognized several types of delict now we
have one overarching system to deal with ALL delicts.
Related to ethics
Law of delict sets standards for human behavior
The ethical ideal of Love thy neighbor becomes Do not
injure your neighbor (Donoghue v Stevenson [1932] AC 562
at 580)

What is delict?
Core principle of delict: no liability without fault.
The law of delict has various objectives, including:
1. Compensating victims for harm suffered
2. Promoting social cohesion
3. Deterring perpetrators from performing the same
harmful actions again

Actions and remedies

Most common remedies:
1. Compensation (usually monetary)
2. Interdict (Court order preventing someone from
performing a specific action)
Remedy will usually depend on action used.
The type of action that you use will usually depend on the
type of harm caused.

Types of delictual actions

1. Lex aquilia/ action legis aquila/ Aquilian action

Used for patrimonial harm

2. Germanic remedy

Used for pain and suffering

3. Actio iniuriarum

Harm to personality interests

Corpus, dignitas and fama

The Aquilian Action

Five main elements:
1. Conduct
2. Causation
3. Harm
4. Fault
5. Wrongfulness

The Aquilian Action: conduct

Two forms of conduct:
1. Commission (action)
Positive act

2. Omission (inaction)
Not acting where there is a duty to act

Conduct must be human conduct

The Aquilian Action: conduct

Conduct must be voluntary
What would be involuntary conduct?
Compulsion
Reflexive muscle movements
Unconscious actions

Infants and/or mentally ill persons?

The Aquilian Action: causation

Did the conduct cause the harm?
Determining whether there is causation requires a twofold enquiry:
1. Is there factual causation?

I.e. did the persons conduct actually cause the harm?

Sine qua non test is used (the but-for test)

But for [conduct], would [harm] have occurred?

Commision: if the person had not performed that action,

would the harm have occurred?

Omission: if the person had performed the action, would

the harm have occurred?