LAW OF DELICT

When a personal right comes into being between legal subjects, the legal
relationship between the subjects is referred to as an obligation. Personal
rights may come about through contract, delict or unjustified
enrichment.
The legal object in relation to a delict is the payment of compensation. It
arises out of damage or loss suffered at the expenses of another.
Definition
A delict is any unlawful culpable act whereby a person (the wrongdoer)
causes the other party (the person prejudiced) damage or injury to
personality, and whereby the prejudiced person is granted a right to
damages or compensation, depending on the circumstances.
Wrongful act giving rise to harm to another.
Delicts can be in the form of:
assault
insult
defamation is the publication of words which bring the good
name of another into disrepute
nuisance
fraud
passing off
negligence.
Stealing trade secrets
Unlawful detention
Malicious prosecution
Seduction
Adultery
Breach of promise to marry

Elements of a delict
1. An act-any voluntary human conduct (omission or commission)
2. Unlawfulness-infringes the rights of another
3. Fault wrongdoer should have acted intentionally or negligently.
Should have a blameworthy state of mind. Dolus eventualis-resigns to
possibility.
4. Causation apply the condition sine qua non test, the act is
indispensable condition for the damage to arise.
5. Damage or injury to personality
a. patrimonial damage arise when the estate becomes smaller.
b. Impairment of personality results when his right to reputation,
dignity or the right to privacy is wrongfully infringed.

Remedies
1. Interdict
2. Actio legis aquiliae if suffered patrimonial loss, claim for loss
which can be assessed in monetary terms. Aimed at recovering
patrimonial damage.
3. Actio iniuriarum if not suffered patrimonial loss but injury to
personality. Action for pain and suffering.
Damages are meant to compensate the injured party and damages for
iniuria are meant to bring solace for injured feelings.
Grounds for justification/Defences in delict
1. Necessity-through external forces placed in such a position that the
persons legitimate interests can only be protected through an
infringement on the rights of another.
2. Self-defense

3. Consent-a boxer consents that a blow from his opponent might injure
him.
4. Statutory authority policeman on duty may exercise force to arrest.
5. Provocation exists where a person is provoked or incited by
anothers words or actions to cause harm to the other.
6. Public policy arises where the plaintiff is engaged in illegal or
immoral activity. Murphy v Tengende 1983
7. Negligence of third party
Defenses for defamation
1. Justification- statement was true and for public benefit.
2. fair comment a person is entitled to voice his opinion on matters of
public interest.
3. Privilege e.g MPs in parliament,
4. Compensation in retaliation to similar defamation
5. Jest joke
6. rixa remarks in the heat of the moment
7. consent person to whom directed consented to the words.
Vicarious Liability
Vicarious liability is a legal doctrine that assigns liability for an injury to
a person who did not cause the injury but who has a particular legal
relationship to the person who did act negligently.
It is also referred to as imputed Negligence.
Legal relationships that can lead to imputed negligence include the
relationship between parent and child, Husband and Wife, owner of a
vehicle and driver, and employer and employee. Ordinarily the
independent negligence of one person is not imputable to another
person.
The doctrine of vicarious liability states that the employer is responsible
for the civil wrongs done by his servant while acting in the course of

their employment. It is based on social policy and is justified on the

basis that:
1. The employer creates risk by going into business as his employees
may cause harm to others while working for him.
2. Because the employer has chosen to have his work done for him by
an employee, he owes a duty to the public to control his employee
so as to protect members of the public from injury or loss.
3. The employees are an extension of the employer as he acts through
them in conducting business.
4. The employee is often incapable to rectify any damage done to
others.
5. The employer is normally a corporate and has the means to
compensate or guard against loss arising from delictual claims.
6. The employer is the one who benefits from the employees work
and he is in a better position to pay the injured party.
Colonial Mutual assurance v MacDonald 1931 AD 412