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CLS cc ©Delict Pack
1
LAW OF DELICT:
INTRODUCTION:
Private law: regulates relationships between individuals in a
community.
Role of delict: indicate which interests are recognized by law, under
what circumstances they are protected against infringement and how
a disturbance in the balance is restored.
Definition of delict: a delict is an act of a person, which in a
wrongful and culpable way causes harm to another.
5 requirements:
1. Act
2. Wrongfulness
3. Fault
4. Causation
5. Damage
All must be present before conduct can become a delict.
Delict and a crime:
Delict:
1. Protects private interests (private law)
2. The aggrieved party institutes the action
3. Objective: claim damages as compensation
4. Cant have attempted delict
Crime:
1. Protects public interest (public law)
2. The state prosecutes
3. Objective: punish the criminal
4. Can have attempted crime
Both are wrongful culpable acts causing damage
Delict and breach of contract:
Delict:
1. Excludes non-fulfillment of a duty to perform (real right)
2. Primary remedy = damages
Breach of contract:
1. Breach = non-fulfillment of a contractual obligation to perform
(personal right)
2. Primary remedy: performance of the contract
Delict, the constitution and fundamental rights:
the constitution is supreme and conduct inconsistent with it is
invalid.
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Delict Pack
2
Fundamental rights can be limited by the law of general application,
but only to the extent that the limitation is reasonable and justifiable
in an open and democratic society based on human dignity equality
and freedom (S36).
Courts must promote the values that underlie this society.
International law must be taken into account.
Direct application: the fundamental rights relevant to or connected
with the law of delict include = right to property, life, freedom, privacy
etc.
In case of an infringement anyone entitled to relief can approach a
competent court.
Indirect application: all private law rules, principles and those
regulating the law of delict are subject to chapter 2.
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3
POSSIBLE QUESTIONS:
NAME THE 3 MOST NB DELICTUAL ACTIONS & INDICATE IN
EACH INSTANCE FOR WHAT TYPE OF DAMAGE EACH ACTION IS
AVAILABLE & WHAT FORM OF FAULT IS REQUIRED TO
INSTITUTE EACH ACTION.
1. Patrimonial damage (damnum inuria datum):
Damage for the wrongful & culpable (negligence / intention) causing
of patrimonial damages ($) are claimed.
= Actio legis aquiliae.
2. Injury to personality:
Satisfaction for the wrongful & intentional injury to personality.
= Actio inuriarum.
3. Action for pain & suffering:
Compensation for injury to personality as a result of the wrongful &
negligence / intention impairment of a bodily or physical-mental
integrity is claimed
DELICT & CONTRACT ARE SIMILAR IN SO FAR AS BOTH OF
THEM CONSTITUTE WRONGFUL CONDUCT IN PRIVATE LAW.
EXPLAIN WHAT THE DIFFERENCES ARE BETWEEN THEM? (4)
DELICT BREACH OF CONTRACT
1. Excludes non-fulfilment of a 1. Breach = Non-fulfilment of a
duty to perform (Real right) contractual obligation to
2. Primary remedy = Damages perform (Personal right)
2. Primary remedy = Performance
of the contract.
STATE THE DIFFERENCES BETWEEN DELICT & CRIME (4)
DELICT CRIME
1. Protects private interests 1. Protects public interests
(Private law) (Public law)
2. The aggrieved party institutes 2. The state prosecutes
the action 3. Objectives : Punish the
3. Objective : Claim damages as criminal
compensation 4. Can have attempted crime
4. Can’t have attempted delict
WRITE NOTES ON THE “INDIRECT” APPLICATION OF THE BILL
OF RIGHTS IN THE LAW OF DELICT (5)
Indirect Application:
Is all private law rules, principles & those regulating the law of Delict
are subject to Chapter 2 of the Constitution (Namely Fundamental
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4
Rights like, Right to religion, life, dignity, etc). Indirect application is
about delictual issues, e.g.: Infringement of 1 of your fundamental
Rights. One first uses indirect application before one uses direct
application.
LIST 10 FUNDAMENTAL RIGHTS ENTRENCHED IN CHAPTER 2 OF
THE CONSTITUTION WHICH ARE RELEVANT TO THE LAW OF
DELICT (5)
1. Religion
2. Speech
3. Life
4. Privacy
5. Property
6. Security
7. Education
8. Adequate housing
9. Good name
10. Dignity
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