Lade7111 Mo

IIE Learn Module Outline LADE7111
Law of Delict
LADE7111
MODULE OUTLINE 2023
(First Edition: 2018)
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© The Independent Institute of Education (Pty) Ltd 2023 Page 1 of 34

Table of Contents
Introduction.............................................................................................................................................. 3
Using this Module Outline ..................................................................................................................... 4
This Module on Learn ............................................................................................................................. 5
Icons Used in this Document and on Learn ......................................................................................... 6
Module Resources ................................................................................................................................... 7
Module Purpose .................................................................................................................................... 10
Module Outcomes ................................................................................................................................. 10
Assessments ........................................................................................................................................... 11
Module Pacer ......................................................................................................................................... 14

Introduction
Welcome to the module “Law of Delict”. The law of delict falls under the branch of private law,
which governs the relations between individuals. The fundamental premise in law is that damage
lies where it falls, which means that everyone must bear the damage they suffer. There are,
however, certain circumstances where legally the damage will shift from one person to another
and the latter will be obligated to cover the damages incurred by the former. This is regulated
by the law of delict.
The purpose of this module is to provide students with an overview of the law of delict. This area
of law is dynamic as it continues to develop and much reliance is placed upon case law. The law
of delict is also further impacted by the constitutional values, principles and fundamental rights
that are found in the Constitution of the Republic of South Africa, 1996, as the supreme law of
South Africa.
After completion of this module, you should be able to grasp, and have a good understanding
of, the fundamental principles that underlie the law of delict; identify problems and challenges
that the law of delict aims to address and to formulate appropriate solutions to problem-based
scenarios in the law of delict, using case law and legislation as authority.
As such, this module requires students to engage with, apply and analyse the applicable legal
principles governing the law of delict. Students should be able to unpack case law, journal articles
and relevant legal principles in a logical manner in order to solve a specific problem that centres
on law of delict as a legal field.
This is a fast-paced module and there is a lot of content that needs to be covered, so it is
important that you prepare accordingly for each class by reading through the prescribed material
and engaging with your peers as well as lecturers in classes, by asking questions in and
participating in topical discussion on the module’s content, to achieve good results in this
module.
We hope that you will enjoy this module and we wish that it may be useful to your success in
your chosen future career.

Using this Module Outline

This module outline has been developed to support your learning. Please note that the
content of this module is on Learn as well as in the prescribed material. You will not succeed
in this module if you focus on this document alone.
• This document does not reflect all the content on Learn, the links to different resources,
nor the specific instructions for the group and individual activities.
• Your lecturer will decide when activities are available/open for submission and when these
submissions or contributions are due. Ensure that you take note of announcements made
during lectures and/or posted within Learn in this regard.

This Module on Learn

Learn is an online space, designed to support and maximise your learning in an active manner.
Its main purpose is to guide and pace you through the module. In addition to the information
provided in this document, you will find the following when you access Learn:
• A list of prescribed material;

• A variety of additional online resources (articles, videos, audio, interactive graphics, etc.)
in each learning unit that will further help to explain theoretical concepts;
• Critical questions to guide you through the module’s objectives;
• Collaborative and individual activities (all of which are gradable) with time-on-task
estimates to assist you in managing your time around these;
• Revision questions, or references to revision questions, after each learning unit.
Kindly note:
• Unless you are completing this as a distance module, Learn does not replace your
contact time with your lecturers and/or tutors.
• LADE7111 is a Learn module, and as such, you are required to engage extensively with
the content on the Learn platform. Effective use of this tool will provide you with
opportunities to discuss, debate, and consolidate your understanding of the content
presented in this module.
• You are expected to work through the learning units on Learn in your own time –
especially before class. Any contact sessions will therefore be used to raise and address
any questions or interesting points with your lecturer, and not to cover every aspect
of this module.
• Your lecturer will communicate submission dates for specific activities in class and/or
on Learn.

Icons Used in this Document and on Learn

The following icons are used in all your modules on Learn:
Icon Description
A list of what you should be able to do after working through the learning
unit.
Specific references to sections in the prescribed work.
Questions to help you recognise or think about theoretical concepts to be

covered.
Sections where you get to grapple with the content/ theory. This is mainly
presented in the form of questions which focus your attention and are aimed
at helping you to understand the content better. You will be presented with
online resources to work through (in addition to the textbook or manual
references) and find some of the answers to the questions posed.
Opportunities to make connections between different chunks of theory in

the module or to real life.
Real life or world of work information or examples of application of theory,

using online resources for self-exploration.
REMEMBER:
You need to log onto Learn to:

• Access online resources such as articles, interactive graphics, explanations, video clips,
etc. which will assist you in mastering the content; and
• View instructions and submit or post your contributions to individual or group activities
which are managed and tracked on Learn.

Module Resources
Prescribed Loubser, M. Midgley, R. (Eds) Mukheibir, A. Niesing, L. & Perumal, D. The
Material (PM) Law of Delict in South Africa 3rd ed (2017) Oxford University Press: Cape
for this Module Town.
ISBN: 9780190411480
The Constitution of the Republic of South Africa, 1996
Carmichele v Minister of Safety and Security 2001 4 SA 938 (CC).
Fose v Minister of Safety and Security 1997 (3) SA 786 (CC).
H v Fetal Assessment Centre 2015 (2) SA 193 (CC).
K v Minister of Safety and Security 2005 (9) BCLR 835 (CC).
Lee v Minister of Correctional Services 2013 (2) SA 144 (CC).
Mashongwa v Passenger Rail Agency of South Africa 2016 3 SA 528 (CC).
Molefe v Mahaeng 1999 1 SA 562 (SCA).
Stedall and Another v Aspeling and Another 2018 2 SA 75 (SCA).
Allaclas Investments (Pty) Ltd v Milnerton Golf Club 2008 3 SA 134 (SCA).
Cape Town Municipality v Bakkerud 2000 3 SA 1049 (SCA).
Minister of Safety and Security v Van Duivenboden 2002 6 SA 431 (SCA).
Minister van Polisie v Ewels 1975 3 SA 590 (A).
The Minister of Justice and Constitutional Development v X 2015 1 SA 25

(SCA).
Van Eeden v Minister of Safety and Security 2003 1 SA 389 (SCA).
Za v Smith and Another 2015 4 SA 574 (SCA).
S v Makwanyane 1995 3 SA 391 (CC) page 449 & fn 435.

Christian Education South Africa v Minister of Education 2000 4 SA 757

(CC).
Freedom of Religion South Africa v Minister of Justice and Constitutional

Development 2020 1 SA 1 (CC).
Netherlands Insurance v Van der Vyver 1968 1 SA 412 (A).
Khumalo v Holomisa 2002 (5) SA 401 (CC).
Kruger v Coetzee 1966 2 SA 428 (A).
Lampert v Hefer 1955 2 SA 507 (A).
Greater Johannesburg Transitional Council v ABSA 1997 2 SA 691 (W).
Fourie v Van der Spuy and De Jongh Inc. and Others 2020 1 SA 560 (GP).
Stearns v Robispec (Pty) Ltd (27949/2017) [2020] ZAGPJHC (9 March

2020).
MTO Forestry (Pty) Ltd v Swart NO 2017 5 SA 76 (SCA).
Lee v Minister of Correctional Services 2013 2 SA 144 (CC).
Thoroughbred Breeders’ Association v Price Waterhouse 2001 (4) SA 551

(SCA).
Articles:
Brand, FDJ “Influence of the Constitution on the law of delict” 2014

Advocate 45.
Neethling, J “The law of delict and punitive damages” 2008 Obiter 238.
Recommended Please note that a number of additional resources and links to resources
Readings, are provided throughout this module on the Learn platform. You are
Digital, and Web encouraged to engage with these as they will assist you in mastering the
Resources various objectives of this module. They may also be useful resources for
completing any assignments. You will not, however, be assessed under

examination conditions on any additional or recommended reading

material.
Module You will find an overview of this module on Learn under the Module
Overview Information link in the Course Menu.
Assessments Find more information on this module’s assessments in this document
and on the Student Portal.

Module Purpose
The purpose of this module is to provide students with sufficient knowledge and
understanding of the Law of Delict in respect of the common law principles applicable, the
case law in this field of law, and to enable the student to formulate a point of view on how the
South African courts are likely to find in a specific dispute or case.
Module Outcomes
MO1 Identify the relevant legal sources applicable to the law of delict.
Analyse legal sources and correctly describe the relevant delictual principles from
MO2
them.
Describe the manner in which the general principles of delict are applied to specific
MO3
delicts.
Apply delictual principles to practical scenarios and provide clear and coherent
MO4
advice.
Critique delictual principles within the context of South Africa’s constitutional
MO5
democracy.
MO6 Apply delictual principles in a nuanced manner when solving practical scenarios.

Assessments
Integrated Curriculum Engagement (ICE)
Minimum number of ICE activities to complete 4
Weighting towards the final module mark 10%
Formatives Test Assignment

Weighting 25% 30%
Duration 1 hour Approximately 10 hours
Write/Submit after LU 3 LU 4
LUs 1, 2 and 3 (up to and
Learning Units covered LUs 1, 2, 3 (all themes) and 4
including theme 1 in LU 3)
Resources required Prescribed material Additional research required
Summative Examination
Weighting 35%
Duration 2 hours
Total marks 120
Open/Closed book Closed book
Resources required None
Learning Units covered All

Assessment Preparation Guidelines

Format of the Assessment Preparation Hints
Test
The test for this module will • Ensure that you work through all the relevant activities,
assess your understanding exercises and revision questions on Learn and in your
of Learning Unit 1, 2 and 3 textbook.
(up and including Theme 1 • Brainstorm possible questions based on the learning
of LU 3) of this module, and outcomes and objectives provided. Then complete
will include a series of short these as practise-tests.
and medium-length • Engage with your lecturer on any questions that you
questions, as well as one or may have about the module’s content.
more longer question. You • During both your preparation for the test and during
will be expected to apply, as the test itself, pay attention to the instruction words
well as recall information as (like list, apply, describe etc.) and to the mark
per your objectives for allocations of each question to ensure that you are able
these learning units. to provide the correct depth and detail in your answers.
• Make sure that you have mastered the objectives in
Learning Units 1, 2 and 3 (up to and including Theme 1
of LU 3).
Assignment
The assignment will assess • Ensure that you work through all the relevant activities,
your ability integrate and exercises and revision questions on Learn and in your
apply the content in textbook.
Learning Units 1, 2, 3 (all • Brainstorm possible questions based on the learning
themes) and 4 of this outcomes and objectives provided. Then complete
module, and will include these as practice-exercises.
one or more longer • Engage with your lecturer on any questions that you
questions. You will be may have about the module’s content.
expected to apply as per • While completing the assignment, pay attention to the
your objectives for these instruction words (like list, apply, describe etc.) and to
learning units. the mark allocations of each question to ensure that
you are able to provide the correct depth and detail in
your answers.
• Make sure that you have mastered the objectives in
Learning Units 1, 2, 3 (all themes) and 4.

Examination
The examination will assess • Ensure that you work through all the activities, exercises
all learning units in this and revision questions on Learn and in your textbook and
module and will include other prescribed material. You must have completed
both theory and close readings of your prescribed material to ensure that
application-type questions. you have prepared adequately for your examination for
this module.
You will be expected to • Engage with your lecturer on any questions that you may
respond to short, theory- have about the module’s content.
based questions, as well as • Pay close attention to the instruction words (like list,
to application-type apply, describe, analyse etc.) and to the mark allocations
questions. of each question to ensure that you provide the correct
depth and detail in your answers.
• Make sure that you are comfortable in responding to all
the objectives for all learning units and that you
understand the case law, as you will be required to
advise on a relevant scenario with reference to case law.
• Brainstorm possible questions based on the learning
outcomes and objectives provided.

Module Pacer
Code Programme Contact Hours Credits
LADE7111 BLAW1; BLW3 36 15
Learning Unit 1 Introduction and Historical Background
Overview:
The purpose of the law, particularly private law, is to regulate relations between juristic
persons. The fundamental premise in law is that damage lies where it falls, which means that
everyone must bear the damage they suffer. There are, however, certain circumstances in
which, legally, the damage will shift from one legal subject to another and the latter will then
be obligated to cover the damages incurred by the former. This is regulated by the law of
delict.
In this learning unit, we will look at the nature of a delict and its place within the South African
legal system.
If you are a contact student, you will likely spend 2 sessions on this learning unit.
Please work through Themes 1 and 2 on Learn, together with the relevant sections of your
prescribed source/s. To ensure that you are working towards mastering the objectives for this
learning unit, please also ensure that you complete all the activities on Learn.
You may experience that this learning unit and the learning units to follow contain legal
terminology and concepts that you may not be familiar with. Therefore, ensure that you are
familiar with the way that these are used in this module by referring to the definitions included
in the prescribed readings for this unit. You are encouraged to create your own glossary of key
terms for this module as you go along in engaging with this module.

Learning Unit 1: Theme Breakdown

Sessions: Theme 1: Introduction and Historical Prescribed Material (PM)
1–2 Background
Related LO1: Explain the role of the law of delict. PM: Chapters 1 and 11
Outcomes: LO2: Define a delict.
MO001 LO3: Name the five requirements or H v Fetal Assessment Centre
MO002 elements of a delict. 2015 (2) SA 193 (CC).
MO003 LO4: Explain the generalising approach to
MO005 the law of delict. Thoroughbred Breeders’
LO5: Explain the three actions or pillars of Association v Price
the law of delict. Waterhouse 2001 (4) SA 551
LO6: Describe the nature of the (SCA).
infringement which each of the
three actions apply to. Neethling, J “The law of
LO7: Identify the form of fault required for delict and punitive damages”
each of the three actions. 2008 Obiter 238.
LO8: Analyse the difference between
actions for breach of contract and
actions in delict and contracts and
explain why this distinction is
important.
LO9: Bearing in mind the fundamental
differences between delicts and
crimes, explain the extent to which
(if any) punitive damages still play a
role in the South African law of
delict.
Theme 2: The interchange between the

Constitution and the Law of
Delict
LO10: Analyse the impact of the PM: Chapters 2 and 3
Constitution and Human Rights on
the law of delict, including Carmichele v Minister of
explanations on the following: Safety and Security 2001 4 SA
• Whether the infringement of a 938 (CC).
constitutional right can
amount to a delict Fose v Minister of Safety and
• The constitutional remedy Security 1997 (3) SA 786 (CC).

• Delictual damages as relief for H v Fetal Assessment Centre

the violation of a 2015 (2) SA 193 (CC).
constitutional right
• The distinction between direct Harksen v Lane NO 1998 (1)
and indirect application of the SA 300 (CC).
Constitution to delictual
disputes
• Constitutional values that K v Minister of Safety and
impact on the common law of Security 2005 (9) BCLR 835
delict (CC).
LO11: With reference to case law, analyse
from a set of facts when Khumalo v Holomisa 2002 (5)
constitutional damages may be SA 401 (CC).
awarded as appropriate relief.
LO12: Analyse the extent to which the
Constitution allows for the influence Lee v Minister of Correctional
of multi-cultural values on the law Services 2013 (2) SA 144
of delict. (CC).
Minister of Safety and

Security v Van Duiwenboden
2002 (6) SA 431 (SCA).
Minister van Polisie v Ewels

1975 (3) SA 590 (A).
Brand, FDJ “Influence of the

Constitution on the law of
delict” 2014 Advocate 45.

Learning Unit 2 Conduct
Overview:
Delict is a branch of private law that looks to provide compensation to legal persons who have
suffered harm. There are five elements of delictual liability, conduct being the first which we
will discuss in this learning unit. Conduct is a general prerequisite for delictual liability. Damage
must be caused by something, and in the case of delict it is caused by conduct. Conduct may
be defined as a voluntary action or omission.
In this learning unit, we will look at the nature and characteristics of conduct, the different
types of conduct, and the defence of automatism.
Please work through Theme 1 on Learn, together with the relevant sections of your prescribed
source/s. To ensure that you are working towards mastering the objectives for this learning
unit, please complete the all the activities on Learn.


Sessions: Theme 1: Conduct Prescribed Material (PM)
3–4
Related LO1: Identify the characteristics of the act PM: Chapters 5 and 14.
Outcomes: or conduct required for delictual
MO001 liability. Mashongwa v Passenger
MO002 LO2: Fully discuss the concept of Rail Agency of South Africa
MO003 voluntariness. 2016 3 SA 528 (CC).
MO004 LO3: Explain the general term used for the
MO006 defence that excludes voluntariness Molefe v Mahaeng 1999 1
and what this defence entails. SA 562 (SCA).
LO4: Identify the conditions that may
cause a person to act involuntarily. Stedall and Another v
LO5: Discuss the effect that actio libera in Aspeling and Another 2018 2
causa has on liability. SA 75 (SCA)
LO6: Discuss the relevance of the
distinction between a positive act
(commission) and an omission.
LO7: Using illustrative examples,
distinguish between an omission and
deficient positive conduct (culpa in
faciendo).
LO8: Apply the legal principles relating to
the element of conduct to a set of
facts, with reference to relevant
authority.

Learning Unit 3 Wrongfulness
Overview:
A delict does not arise purely out of an act that causes harm. The act must also be wrongful.
Without wrongfulness, the person who committed the act cannot be held liable. Wrongfulness
lies in the infringement of a legally protected interest in a legally unacceptable way. Whether
an interest is worthy of protection as well as whether the infringement is legally unacceptable
is determined by the legal convictions of the community or boni mores criterion.
In this learning unit, we will look at the concept of wrongfulness in delict. We will look at how
wrongfulness is determined, particularly in relation to the unique position of omissions and
the carrying out of a statutory duty. We will also look at the justifications that may be raised
as defences against wrongfulness.
Please work through Themes 1, 2 and 3 on Learn, together with the relevant sections of your
prescribed source/s. To ensure that you are working towards mastering the objectives for this
learning unit, please complete all the activities on Learn.


Sessions: Theme 1: Determining Wrongfulness Prescribed Material (PM)
5 – 14
Related LO1: Analyse the relationship between the PM: Chapters 9, 10 and 14.
Outcomes: act, wrongfulness, and the
MO001 consequence. Cape Town Municipality v
MO002 LO2: With reference to case law, Bakkerud 2000 3 SA 1049
MO003 comprehensively discuss the nature (SCA).
MO004 and application of the boni mores
MO005 test for wrongfulness. Carmichele v Minister of
MO006 LO3: Explain, with the use of illustrative Safety and Security 2001 4
examples, the role of subjective SA 938 (CC).
factors in determining wrongfulness.
Minister of Safety and
Theme 2: Omissions and Breach of Duty Security v Van Duivenboden
2002 6 SA 431 (SCA).
LO4: Explain why the breach of a legal
duty is used in certain instances to Stedall and Another v
determine wrongfulness. Aspeling and Another 2018 2
LO5: Critically discuss the “duty of care” SA 75 (SCA)
doctrine and indicate whether it is
part of South African law. Minister van Polisie v Ewels
LO6: Apply all the legal principles 1975 3 SA 590 (A).
governing liability for an omission to
a given scenario. The Minister of Justice and
LO7: Explain whether or not non- Constitutional Development
compliance with a statutory duty in v X 2015 1 SA 25 (SCA).
itself constitutes delictual
wrongfulness. Van Eeden v Minister of
Safety and Security 2003 1
Theme 3: Grounds of Justification SA 389 (SCA).
LO8: Through illustrative examples explain

Za v Smith and Another 2015
the meaning of a ground of
4 SA 574 (SCA).
justification.
LO9: Evaluate the requirements and legal
Mashongwa v Passenger
principles governing private defence.
Rail Agency of South Africa
LO10: Evaluate the requirements and legal
2016 3 SA 528 (CC).
principles governing necessity.
S v Makwanyane 1995 3 SA
391 (CC) page 449 & fn 435.

LO11: Differentiate, through illustrative

examples, between private defence Christian Education South
and necessity. Africa v Minister of Education
LO12: Evaluate the requirements and legal 2000 4 SA 757 (CC)
principles governing provocation in
instances of physical assault, Freedom of Religion South
defamation and insult. Africa v Minister of Justice
LO13: Differentiate, through illustrative and Constitutional
examples, between provocation and Development 2020 1 SA 1
private defence. (CC)
LO14: Evaluate the characteristics and
legal principles governing consent as
a justification ground.
LO15: Distinguish between consent to
injury and consent to the risk of
injury.
LO16: Distinguish between consent and a
pactum de non petendo in
anticipando.
LO17: Explain when an infringement of
interests will be authorised by
statute.
LO18: Explain when official capacity will
succeed as a ground of justification.
Illustrate with an example.
LO19: Discuss the requirements for when
a wrongful command will constitute
a defence.
LO20: Discuss the effect of section 10 of
the South African Schools Act 84 of
1996 on corporal punishment in
schools.
LO21: Discuss the requirements of lawful
power to discipline and discuss the
influence of the Constitution on the
power to discipline.
the element of wrongfulness to a set
of facts, with reference to relevant
authority.

Learning Unit 4 Fault and Forms of Liability without Fault
Overview:
It is accepted that fault is one of the requirements for delictual liability. In practice, two kinds
of fault are recognised. The first one is dolus or intention. The second is culpa or negligence.
These terms generally refer to the legal blameworthiness or the reprehensible state of mind
of someone who has acted wrongfully. In a sense, fault is a subjective element of a delict,
because it is concerned to a large extent with the individual’s attitude or disposition.
Nevertheless, as will be apparent, the test for negligence is objective in nature.
In this learning unit, we will look at fault and forms of liability without fault.
unit, please complete all the activities on Learn.


Sessions: Theme 1: Fault and Forms of Liability Prescribed Material (PM)
15 – 22 without Fault
Related LO1: Define accountability. PM: Chapters 8, 10, 14, 15,
Outcomes: LO2: Explain the factors that may negate 32 and 35
MO001 accountability.
MO002 LO3: Discuss how the Child Justice Act 75 Stedall and Another v
MO003 of 2008 changed the common law Aspeling and Another 2018 2
MO004 position with regard to the SA 75 (SCA)
MO005 accountability of children (see
MO006 material on VC Learn) Netherlands Insurance v Van
LO4: Comprehensively discuss the legal der Vyver 1968 1 SA 412 (A).
principles and requirements
governing intent as a form of fault. Kruger v Coetzee 1966 (2) SA
LO5: Differentiate between the different 428 (A).
forms of intent by illustrating it with
examples. Lampert v Hefer 1955 2 SA
LO6: Distinguish between intent and 507 (A).
motive.
LO7: Discuss the test used to establish Greater Johannesburg
negligence as set out in Kruger v Transitional Council v ABSA
Coetzee 1966 (2) SA 428 (A). 1997 2 SA 691 (W).
LO8: Describe the concept of gross
negligence with reference to case Mashongwa v Passenger
law. Rail Agency of South Africa
LO9: Distinguish between negligent 2016 (3) SA 528 (CC).
misstatement and an omission.
LO10: Describe the general characteristics Fourie v Van der Spuy and
of the reasonable person. De Jongh Inc. and Others
LO11: Discuss the approach taken by our 2020 1 SA 560 (GP).
courts to the negligence of children
and experts respectively. Stearns v Robispec (Pty) Ltd
LO12: Explain the meaning of an expert (27949/2017) [2020]
LO13: With reference to case law, explain ZAGPJHC (9 March 2020)
the nature of foreseeability of harm,
including the difference between the MTO Forestry (Pty) Ltd v
abstract and the concrete approach Swart NO 2017 5 SA 76
thereto. (SCA)

LO14: With reference to case law, Roux v Hattingh 2012 (6) SA

describe the four factors that make 428 (SCA)
up the preventability leg of the
negligence test. Jansen, R Neethling, J
LO15: Explain why negligence should be “Delictual capacity and
judged in the circumstances, and (Contributory) Negligence of
describe the factors that should be Minors” Journal of
taken into account in this Contemporary Roman-Dutch
investigation. law 2017 (80) 474.
LO16: Describe the effect of the res ipsa
loquitor maxim. Neethling, J Potgieter, J
LO17: Explain the distinction between Wrongfulness and delictual
wrongfulness and negligence. liability for rugby injuries:
LO18: Briefly distinguish between fault Roux v Hattingh (SCA) 2014
and contributory fault. SALJ 131.
LO19: Briefly describe the common law
position with respect to contributory
fault.
LO20: Describe the content and effect on
the common law of section 1(1)(a)
and (b) of the Apportionment of
Damages Act 34 of 1956.
LO21: Evaluate the application of the
defence of contributory negligence.
LO22: Describe the two approaches taken
by the courts to the apportionment
of damages, as well as the view that
these approaches can be reconciled.
LO23: Distinguish between voluntary
assumption of risk as a defence
excluding wrongfulness, and
voluntary assumption of risk as a
ground that cancels fault.
LO24: Describe contributory intent in
relation to Lampert v Hefer 1955 2
SA 507 (A).
LO25: Describe consent to the risk of
injury and contributory intent in
relation to Netherlands Insurance v
Van der Vyver 1968 1 SA 412 (A).

LO26: Discuss the ruling in Greater

Johannesburg Transitional Council v
ABSA 1997 2 SA 691 (W) with
respect to contributory intent.
the element of fault and forms of
liability without fault to a set of
authority.
LO28: Discuss the liability of an attorney in
handling a trust account without
negligence with reference to the
case of Fourie v Van der Spuy and
De Jongh Inc. and Others 2020 1
SA 560 (GP).

Learning Unit 5 Causation
Overview:
The causing of damage through conduct, or in other words, a causal nexus between conduct
and damage, is required in order for a delict to exist. A person cannot be held liable if their
conduct is not the cause of the plaintiff’s harm. Whether there is a causal nexus in a particular
situation is a question of fact that must be considered in light of the available evidence and
relevant probabilities.
In this learning unit, we will look at factual and legal causation. We will look at the various tests
and approaches used for each type of causation, and consider some criticisms of these. We
will also consider the concept of an intervening act and how this affects causation, as well as
how the so-called talem qualem rule affects liability. Finally, we will look at how these
principles can be applied to practical scenarios.
unit, please complete the activities on Learn.


Sessions: Theme 1: Causation Prescribed Material (PM)
23 – 28
Related LO1: Briefly distinguish between factual PM: Chapters 6 and 7
Outcomes: causation and legal causation.
MO001 LO2: Explain the conditio sine qua non test Minister of Police v Skosana
MO002 for factual causation. 1977 (1) SA 31 (a).
MO003 LO3: Explain the application of the test in
MO004 the case of a positive act Minister of Safety and
MO006 (commissio) and failure to act Security v Carmichele 2004
(omissio). (3) SA 305 (SCA).
LO4: Describe the three main criticisms
against the conditio sine qua non Lee v Minister of
test. Correctional Services 2013 2
LO5: Describe what the prescribed SA 144 (CC).
textbook considers to be the correct
method of determining factual Za v Smith and Another 2015
causation. 4 SA 574 (SCA).
LO6: Describe the flexible approach to
factual causation with reference to Mashongwa v Passenger
case law. Rail Agency of South Africa
LO7: Explain the purpose of the test for 2016 3 SA 528 (CC).
legal causation.
LO8: Explain the flexible approach to legal Stedall and Another v
causation. Aspeling and Another 2018 2
LO9: Describe the adequate causation test SA 75 (SCA),
for legal causation.
LO10: Describe the direct consequences
test for legal causation.
LO11: Describe the reasonable
foreseeability test for legal
causation.
LO12: Distinguish between the
foreseeability test for fault and the
foreseeability test for legal causation
(briefly refer back to previous
learning unit in order to effect this
comparison).
LO13: Explain the relationship between
the flexible approach to legal
causation and the existing

traditional criteria for legal

causation.
LO14: Explain what novus actus
interveniens means, and how it
relates to imputability of harm.
LO15: Explain the talem qualem rule, and
the different views on how liability
for harm caused in such situations is
justified.
the element of causation to a set of
authority.

Learning Unit 6 Damage
Overview:
The element of damage is fundamental to the law of delict. The compensatory function of a
delictual claim implies that there must be some loss or damage for which the injured party is
to be compensated. In order to determine the quantity of the compensation, the courts need
to assess the nature and extent of the damage that the injured party has suffered.
In this learning unit, we will look at the basic concept of damage and its importance to the
compensatory function of the law of delict. We will examine different types of damage, and
how they are assessed. Finally, we will consider the plaintiff’s duty to mitigate the loss, and
how this may impact on the compensatory award handed down by the court.


Sessions: Theme 1: Damage Prescribed Material (PM)
29 – 32
Related LO1: Discuss the compensatory function PM: Chapters 4, 16 and 34
Outcomes: of the law of delict.
MO001 LO2: Differentiate between the terms
MO002 “damage”/“harm” and
MO003 “damages”/“compensation”.
MO004 LO3: Describe “patrimonial loss/harm”.
MO006 LO4: Briefly describe the concept of
“patrimony”, including its positive
and negative elements.
LO5: Describe the sum-formula approach
to the assessment of harm.
LO6: Describe the concrete approach to
the assessment of damage.
LO7: Explain the “once and for all rule”and
describe the implications thereof.
LO8: Identify those benefits which are
considered res inter alios acta.
LO9: Identify those benefits which are not
regarded as res inter alios acta.
LO10: Explain the principle that a plaintiff
has a duty to mitigate loss.
LO11: Define non-patrimonial loss/harm.
LO12: Identify the forms of injury to
personality in respect of physical-
mental integrity.
the element of damage to a set of
authority.

Learning Unit 7 Delictual Remedies
Overview:
If you have suffered a delict at the hands of someone else, you may wish to bring a claim
against that person in court. The actio legis aquiliae, actio iniuriarum and action for pain and
suffering are all actions that are used to claim for delictual loss in court. These three delictual
actions are generally aimed at compensation for patrimonial damage or impairment of
personality. A third remedy that does not deal with compensation is an interdict, which acts
to stop the wrongdoer from commencing or continuing with the offensive action.
In this learning unit, we will look at the most common delictual remedies. We will consider the
transmissibility/transferability of the three primary delictual actions, after which we will
discuss the remedy of interdicts, their purpose, and the requirements that must be fulfilled to
have an interdict order granted. We will also consider the purpose of exclusionary clauses in
contracts, and how this may impact on delictual claims. Finally, we will look at the concept of
prescription and its consequences for delictual claims.


Sessions: Theme 1: Delictual Remedies Prescribed Material (PM)
33 – 34
Related LO1: Discuss the transmissibility of the PM: Chapters 12, 13, 24, 25
Outcomes: actio legis aquiliae, actio iniuriarum and 34
MO001 and action for pain and suffering.
MO002 LO2: Discuss the requirements for granting
MO003 an interdict.
MO004 LO3: Explain why fault on the part of the
MO006 wrongdoer is not a requirement for
granting an interdict.
LO4: Briefly describe what an exclusionary
clause (also known as an exemption
clause) seeks to achieve.
LO5: Briefly describe the prescription of a
delictual debt (and its associated
remedy).
LO6: Apply the legal principles governing
delictual remedies to a set of facts,
with reference to relevant authority.

Learning Unit 8 Joint Wrongdoers
Overview:
Up until now, we have focused on the idea of a single person committing a wrongful act that
causes harm. But what happens if more than one person contributes to the harm? Historically,
South African common law distinguished between joint wrongdoers – who acted together to
achieve the wrongful outcome – and concurrent wrongdoers – who acted individually but both
contributed to the same harmful consequence. However, since the introduction of the
Apportionment of Damages Act 34 of 1956, we now refer only to joint wrongdoers, regardless
of their intention in committing the act.
In this learning unit, we will look at the liability of joint wrongdoers. We will examine the
common law rules that used to apply to joint wrongdoers, and how this position was changed
by the Apportionment of Damages Act 34 of 1956. We will also look at how delictual liability
is ascribed to joint wrongdoers, and what recourse a joint wrongdoer may have against other
wrongdoers if a claim is brought.
If you are a contact student, you will likely spend 2 sessions on this Learning Unit.


Sessions: Theme 1: Joint Wrong Wrongdoers Prescribed Material (PM)
35 – 36
Related LO1: Define “joint wrongdoers”. PM: Chapter 35
Outcomes: LO2: Explain the common law rules that
MO001 applied to the delictual liability of
MO002 joint wrongdoers.
MO003 LO3: Discuss how the Apportionment of
MO004 Damages Act 34 of 1956 changed
MO006 the common law regarding joint
wrongdoers in general.
LO4: Explain the delictual liability of joint
wrongdoers.
LO5: Explain the right of recourse of a
joint wrongdoer.
the issue of joint wrongdoers to a
set of facts, with reference to
relevant authority.

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The Independent Institute of Education (Pty) Ltd is registered with the

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Using this Module Outline

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This Module on Learn

• A list of prescribed material;

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Icons Used in this Document and on Learn

Specific references to sections in the prescribed work.

Questions to help you recognise or think about theoretical concepts to be

Opportunities to make connections between different chunks of theory in

Real life or world of work information or examples of application of theory,

You need to log onto Learn to:

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The Constitution of the Republic of South Africa, 1996

Carmichele v Minister of Safety and Security 2001 4 SA 938 (CC).

Fose v Minister of Safety and Security 1997 (3) SA 786 (CC).

H v Fetal Assessment Centre 2015 (2) SA 193 (CC).

K v Minister of Safety and Security 2005 (9) BCLR 835 (CC).

Lee v Minister of Correctional Services 2013 (2) SA 144 (CC).

Mashongwa v Passenger Rail Agency of South Africa 2016 3 SA 528 (CC).

Molefe v Mahaeng 1999 1 SA 562 (SCA).

Stedall and Another v Aspeling and Another 2018 2 SA 75 (SCA).

Cape Town Municipality v Bakkerud 2000 3 SA 1049 (SCA).

Minister of Safety and Security v Van Duivenboden 2002 6 SA 431 (SCA).

Minister van Polisie v Ewels 1975 3 SA 590 (A).

The Minister of Justice and Constitutional Development v X 2015 1 SA 25

Van Eeden v Minister of Safety and Security 2003 1 SA 389 (SCA).

Za v Smith and Another 2015 4 SA 574 (SCA).

S v Makwanyane 1995 3 SA 391 (CC) page 449 & fn 435.

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Christian Education South Africa v Minister of Education 2000 4 SA 757

Freedom of Religion South Africa v Minister of Justice and Constitutional

Netherlands Insurance v Van der Vyver 1968 1 SA 412 (A).

Khumalo v Holomisa 2002 (5) SA 401 (CC).

Kruger v Coetzee 1966 2 SA 428 (A).

Lampert v Hefer 1955 2 SA 507 (A).

Greater Johannesburg Transitional Council v ABSA 1997 2 SA 691 (W).

Stearns v Robispec (Pty) Ltd (27949/2017) [2020] ZAGPJHC (9 March

MTO Forestry (Pty) Ltd v Swart NO 2017 5 SA 76 (SCA).

Lee v Minister of Correctional Services 2013 2 SA 144 (CC).

Thoroughbred Breeders’ Association v Price Waterhouse 2001 (4) SA 551

Brand, FDJ “Influence of the Constitution on the law of delict” 2014

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examination conditions on any additional or recommended reading

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Formatives Test Assignment

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Assessment Preparation Guidelines

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Learning Unit 1: Theme Breakdown

Theme 2: The interchange between the

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• Delictual damages as relief for H v Fetal Assessment Centre

Minister of Safety and

Minister van Polisie v Ewels