South African law of delict

The South African law of delict is a type of legal offense that states one person has caused direct harm to another. To prove a delict has occurred, the plaintiff must satisfy five categories—conduct, wrongfulness, fault, damage, and causation. This means the plaintiff must prove that the defendant definitively carried out an intentional or negligent action, that the action was unequivocally wrong, that the defendant was responsible for that action, and that the action directly caused the plaintiff physical, emotional, or monetary damages.

Should the plaintiff successfully prove that a delict occurred, they are usually compensated through monetary means. If a direct monetary value can be applied to the damages, such as the cost to repair or replacement of property, that value should be met. However, if no direct monetary value can be placed on the damages, such as damages to reputation or suffering from physical harm, an appropriate monetary value may be chosen.

Background

A delict occurs when one party commits a harmful act against another party. To prove a delict has occurred, an injured party must satisfy five categories—conduct, wrongfulness, fault, damage, and causation. All five categories must be proven before an offense is considered a lawful delict. Without any of these, an act may be hurtful or offensive, but it is unlikely that someone is liable under delict law.

Delict law is sometimes of particular interest to historians, who note that delicts exist in a space within criminal law and private law. Some forms of delict law can be traced through ancient legal codes, including classical Roman law. Under Roman law, a delicta was a private wrongdoing, including bodily injuries, insults, theft, and property damage.

In most instances, when a plaintiff successfully proves that they have endured harm or injury due to a delict, they are entitled to compensation. Because pure economic loss is difficult to prove, compensation for economic damages is available in more limited circumstances than other forms of damages. These damages most commonly take the form of economic compensation of a value comparable to the damages suffered. If the damages are not monetary, a value deemed fair compensation for the suffering or other negative consequences may be awarded. In some cases, the compensation the plaintiff receives may be governed by specific governmental statutes.

Overview

Conduct refers to a voluntary human act. Legally, under the delict system, conduct can entail either a positive act or an act of omission. A positive act refers to a voluntary action carried out in the world, such as a driver hitting someone with a motor vehicle. An omission can occur when a necessary action is not voluntarily carried out, such as forgetting to engage the brakes on a motor vehicle. People who were not acting voluntarily, such as people suffering from a mental illness or those compelled by fear of violence, are not considered responsible for their conduct. This is commonly referred to as the automatism defense.

Once it is established that an individual’s conduct was voluntary as either a positive action or an omission, the conduct must be examined for wrongfulness. Though the two are often related, not all harmful conduct is wrong, and not all wrong conduct is harmful. For an action to confer delict liability, both conditions must apply.

When examining whether an action was wrong, legal experts first ask whether a legally recognized interest has been infringed. If that question is answered positively, they then ask whether that interest was infringed illegally or unreasonably. If the answer to both questions is yes, the conduct is considered wrong. However, in some circumstances, wrongful actions can be excused. For example, if someone is placed in a state of necessity, acts in self-defense, is intentionally provoked, or is acting in an official capacity, they may not be held personally liable for an act that would otherwise be considered wrong.

The third category necessary for conduct to be liable is fault. In this instance, the term fault means a person can be directly blamed for their conduct. To face blame for the conduct, a person must be accountable for their actions. This means that a person must be able to distinguish between right and wrong, and should not be mentally ill, intoxicated, provoked, or under a legally determined age of consent.

The two primary forms of fault are fault of intention and negligence. Intention means that someone purposefully performs an act that they know is wrong. If this can be proven, the individual is considered at fault. Negligence occurs when someone unintentionally performs a wrongful act. However, if a reasonable person could have foreseen that a specific action would result in damage, and the person could have taken steps to mitigate that damage, then the person has engaged in negligent behavior.

For conduct to qualify for delict, it must cause damage to some party. Damage may include patrimonial losses and non-patrimonial losses. Patrimonial losses can be directly expressed in terms of monetary damage, like the costs of repairing damage to the structure of a home. Non-patrimonial damages include pain, emotional shock, disfigurement, and a reduced lifespan. While these damages cannot be directly expressed with a monetary value, they may be compensated by financial means.

Finally, the damages must be directly caused by the wrong conduct. The injured party must prove that their pain and suffering are the direct result of the conduct of another person and were not caused by other circumstances.

Bibliography

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“Delict.” Oxford Classical Dictionary, 22 Dec. 2015, oxfordre.com/classics/classics/abstract/10.1093/acrefore/9780199381135.001.0001/acrefore-9780199381135-e-8052. Accessed 8 July 2021.

Lee, R. W. “Torts and Delicts.” Yale Law Journal, vol. 27, no. 6, Apr. 1918, pp. 721–730. openyls.law.yale.edu/bitstream/handle/20.500.13051/11371/57‗27YaleLJ721‗1917‗1918‗.pdf. Accessed 20 May 2024.

Maine, Henry. “The Early History of Delict and Crime.” McMaster University, socialsciences.mcmaster.ca/~econ/ugcm/3ll3/maine/anclaw/chap10. Accessed 20 May 2024.

Noriega Del Valle, Fiorella, and Jonathan Ripley-Evans. “In a Nutshell: Claiming Damages in South Africa.” Lexology, 4 Nov. 2019, www.lexology.com/library/detail.aspx?g=29bd0e60-3488-4493-b564-439c0b9a9f56. Accessed 20 May 2024.

Van Der Walt, J. C. "Strict Liability in the South African Law of Delict.” Rand Afrikaans University, www.jstor.org/stable/23241447. Accessed 8 July 2021.

Visser, Daniel, and Niall Whitty. “The Structure of the Law of Delict in Historical Perspective.” Oxford University Press, vol. 2, 2000, pp. 422–476. doi.org/10.1093/acprof:oso/9780198299288.003.0015. Accessed 8 July 2021.

Zitzke, Emile. "Transformative Legal History and the (Re)Classification of the South African Law of Delict" PER, 23 Nov. 2023, vol. 26. doi.org/10.17159/1727-3781/2023/v26i0a15636. Accessed 20 May 2024.