The South African law of delict engages primarily with 'the circumstances in which one person can claim compensation from another for harm that has been suffered'.
[1] JC Van der Walt and Rob Midgley define a delict 'in general terms [...] as a civil wrong', and more narrowly as 'wrongful and blameworthy conduct which causes harm to a person'.
'Sound policy', wrote Oliver Wendell Holmes, Jr, 'lets losses lie where they fall, except where a special reason can be shown for interference'.
As Christian von Bar puts it, 'The law of delict can only operate as an effective, sensible and fair system of compensation if excessive liability is avoided.
'For conceptual clarity', suggest the academic authorities, 'it is always important to remember where we are going along the problem-solving route towards the intended destination'.
(The person engaging in the conduct must also be compos mentis or in sound mind and of sober senses, not unconscious or intoxicated, for example.
Once factual causation is proved, a second enquiry arises: Is the wrongful act linked sufficiently closely or directly to the loss for legal liability to ensue?
In considering the appropriate approach to wrongfulness, I said that any yardstick which renders the outcome of a dispute dependent on the idiosyncratic view of individual judges is unacceptable.
[14]In summary, delictual liability requires a factual causal link between wrongful and culpable conduct, on the one hand, and loss suffered on the other.
To establish legal causation, the courts apply a flexible test based on reasonableness, fairness and justice, or policy and normative considerations.
Factors excluding liability include There are two main components of intention: Animus iniuriandi arises when both requirements—direction of will and knowledge of wrongfulness—are satisfied.
[26] There are several defences which exclude intent: The test for negligence is one of the objective or reasonable person (bonus paterfamilias).
One of the reasons why the law distinguishes between different forms of conduct is that this affects the way the courts deal with the question of wrongfulness.
When a court holds that conduct is wrongful, it makes a value judgment that, in certain categories of cases, particular people should be responsible for the harm they cause.
These are determined by the nature and consequences of the conduct: An omission, as noted previously, is not prima facie wrongful, even when physical damage is caused.
Grounds of justification may be described as circumstances which occur typically or regularly in practice, and which indicate conclusively that interference with a person's legally-protected interests is reasonable and therefore lawful.
They are practical examples of circumstances justifying a prima fade infringement of a recognised right or interest, according to the fundamental criterion of reasonableness.
In cases of necessity and private defence, the question is this: Under which circumstances would the legal convictions of the community consider it reasonable to inflict harm to prevent it?
One will be held responsible for the intentional results of one's conduct even if it is occasioned by an unintended method (although this is subject, of course, to the presence of the other elements of liability).
The test comprises three elements: The standard was well-articulated in Kruger v Coetzee: For the purposes of liability culpa arises if Conduct is therefore negligent if a reasonable person in the same position as the defendant would have foreseen the possibility of harm, and would have taken steps to avoid it, and if the defendant failed to take such steps.
The sort of circumstances, however, which the Courts often look to in cases such as this in deciding what degree of foreseeability must be proved by the plaintiff before a defendant can be held responsible for the resultant damage are these: The magnitude of the risk created by the defendant (point 1. above) comprises two elements: If the likelihood of harm is relatively great, or the consequences serious, the possibility of harm will normally be reasonably foreseeable.
Various tests for legal causation have been suggested but the Appellate Division has opted for a flexible umbrella criterion, which determines the closeness of the link according to what is fair and reasonable and just.
In respect of a claim in terms of the Aquilian action, there is only one function: to restore the plaintiff's patrimony and, as far as possible, to place him in the position he would have occupied in had the delict not been committed.
Where harm admits of exact monetary quantification, the plaintiff must produce sufficient evidence to make an accurate assessment.
Dignitas is a generic term meaning 'worthiness, dignity, self-respect', and comprises related concerns like mental tranquillity and privacy.
This includes insult (iniuria in the narrow sense), adultery, loss of consortium, alienation of affection, breach of promise (but only in a humiliating or degrading manner), violation of chastity and femininity (as in the cases of peeping toms, sexual suggestions in letters, indecent exposure, seduction, wrongful dismissal of an employee in humiliating terms and unwarranted discrimination on grounds of sex, colour or creed).
Cases often involve clashes between press freedom and public interest on the one hand, and private personal rights on the other.
Privacy can be invaded in various ways: One's fama, to revise, is one's reputation or good name; it is other peoples' general opinion, the esteem in which one is held by others.
[42] Defamation is the infringement of one's fama: the unlawful and intentional publication of defamatory matter (by words or by conduct) referring to the plaintiff, which causes his reputation to be impaired.
The test, again, is objective: Would the ordinary reasonable person hearing or reading the statement understand the matter to refer to the plaintiff?