Do you understand the Law of Delict?

The South African law of delict, which forms part of the law of obligations, engages squarely in civil wrongs, where one party through its wrongful conduct causes harm to another resulting in liability and damages. Liability in delict can be either fault-based liability – where a person is at fault and they should bear personal responsibility – or strict based liability – where someone is held liable, regardless of fault, because of the outcome.

The nature of the law of delict includes, but is not limited to, the fundamental principle: damage rests where it falls (“res perit domino”),[1] compensation, loss allocation and corrective justice, morality and fairness, protecting certain interests and promoting social order and cohesion. It can be applied to various scenarios, including claims relating to personal injury, defamation, damage to property and copyright infringement.

If a person would like to institute a delictual claim, there are five (5) elements that need to be proven in order for a party to be held liable for the harm caused to another. The elements are as follows:

• Conduct: This element refers to a voluntary act or omission;
• Harm: This element refers to the actual or potential harm suffered by a party, which can either amount to patrimonial loss[2] or non-patrimonial loss[3];
• Causation: This element refers to the causal connection between the conduct and the harm. Causation has a two-fold enquiry – factual causation (is there a factual relationship between the defendant’s conduct and the harm suffered by the plaintiff?), and legal causation (should the defendant be held legally responsible for the harm factually caused by his/her conduct?);
• Fault: This element refers to a defendant’s degree of legal blameworthiness or reprehensible state of mind at the time of the act. Accountability is a prerequisite of fault.[4] Further, there are two (2) forms of fault – intention (“dolus” – refers to a wrongdoer’s will to achieve a specific wrongful consequence) and negligence (“culpa” – where the actor has not met the required standard of care that society judges as appropriate); and
• Wrongfulness: This element refers to whether the conduct according to the legal convictions of the community and considering all circumstances of the case, the defendant infringed on the interests of the plaintiff in an unreasonable and an unlawful manner. For liability to exist, prejudice must be caused in a wrongful manner.

Further, the three (3) ‘pillars’ and/or common delictual actions include:

• Actio legis aquiliae: The delictual remedy to claim damages for patrimonial loss resulting from damage to property, pure economic loss, loss of income and earning capacity, medical expenses and loss of support;
• Actio iniuriarum: The delictual remedy to claim damages for an injury to a personality interest resulting from damage to “corpos” (bodily integrity), damages to “dignitas” (dignity including privacy and identity) and damage to “fama” (reputation) resulting from defamation, wrongful deprivation of liberty, insult and invasion of privacy; and
• Germanic action for pain and suffering: The delictual remedy to claim damages for intangible harm associated with personal injury due to a violation of physical and/or mental injury resulting from pain, emotional shock, loss of life expectancy, loss of amenities of life and heath and disfigurement.

The above common delictual actions can used to provide remedies for persons who have suffered harm as a consequence of another’s wrongful conduct. However, there are further actions that can be instituted dependent on the conduct. In circumstances where the conduct is occasioned by a domesticated animal, one may institute a claim based on actio de pauperie for patrimonial loss, which is when an animal harms the plaintiff and acted against its nature but owing to a vice. On the other hand, where the plaintiff suffers loss owing to animals grazing, one may institute a claim based on actio de pastu for damage to plants and/or crops through grazing.

The South African law of delict plays a pivotal role in the South African legal system as it permits people to seek redress for harm caused by the wrongful conduct of others by ensuring accountability and providing a legal recourse for compensation for damages incurred. As can be seen from the above, there are many factors to understanding what the appropriate action for loss to you caused by another, and many factors to consider when proving such a claim. A seasoned attorney will be able to guide you through this process to ensure that your damages are made good.

1. [1] Meaning that the owner of a thing bears the damage thereof.
2. [2] Financial loss like hospital bills.
3. [3] Non-financial loss like pain and suffering or disfigurement.
4. [4] Children and mentally ill people, for example, may not be accountable.

While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes and should not be construed as legal advice.