South African Law of Delict

A “civil wrong”. It basically deals with the circumstances in which one person can claim compensation from another for harm that has been suffered.

Damages in delict are divided into:

1.    patrimonial/special damages (including medical costs, loss of income and the cost of repairs);

2.    non-patrimonial damages/general damages (including pain and suffering, disfigurement, loss of amenities and injury to personality);

3.    pure economic harm (not connected to any physical injury or damage to property).

Three main delictual remedies/actions to deal with damages:

1.    Aquilian action (relates to patrimonial loss):

Harm or Loss – plaintiff must have suffered harm; harm must be patrimonial, which means monetary loss sustained due to physical damage to a person or property.

Conduct must be wrongful (unreasonable and without lawful justification).

Defences

One must be at fault, and accountable and one’s blameworthiness must be intentional or negligent.

There must be causation both factual and legal.

Damages – The primary objective is to compensate the person who has suffered harm. To restore the plaintiff’s patrimony and place him in a position he would have been in prior to the act of delict committed on him. Therefore, money is considered an adequate replacement for the lost patrimony. A court will not make an arbitrary award in the absence of available evidence. Where damages cannot accurately be assumed, a court may exercise its own judgment in the matter, provided it has facts.

However, if Plaintiff’s negligent conduct contributes to the loss, this is considered when determining the extent of the Defendant’s liability. This basically reduces the damages award.

2.    Actio iniuriarum (relates to injuries concerning personality)

Essential elements of liability

General elements of delict must be present, but specific rules have been developed for each element. Causation is assumed to be present. 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);

wrongful conduct (statements, either oral or in writing, as well as physical contact or gestures, could also arise. The principles are the same as those applicable to the Aquilian action.

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. For example: the discharge of a duty, the exercise of a right or the furtherance of a legitimate interest.

3.    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.

Harm or loss: Pain and suffering – personal bodily injury to the plaintiff: for example, actual pain, the loss of amenities of life and the loss of life expectancy.

Conduct: in the form of a positive act, an omission or a statement.

Wrongfulness or unlawfulness: unreasonable conduct.

Fault: blameworthiness in the form of intention or negligence.

Causation: factual causation and legal causation.