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Principles of Delict

Principles of Delict serves as a practical first port of call to the South African law of delict.

Publication Language: English

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ISBN/ISSN: 9780409127904
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ISBN/ISSN: 9780409127119
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ISBN/ISSN: 9781776322220
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ISBN/ISSN: ONL0409127119
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Product description

Principles of Delict serves as a practical first port of call to the South African law of delict.

The Fourth Edition surveys cases since 2005, presents a comprehensive overview of developments in the law and illustrates how the Constitutional Court and the Supreme Court of Appeal, especially, have shaped traditional principles to coincide with modern human rights values. It follows the LAWSA format of focusing primarily on case law and extracting therefrom general principles that may guide those who advise on and apply the law of delict.

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Table of contents


Delict as source of obligations

Delict: general nature

Essential elements

Delict distinguished from crime

Delict distinguished from breach of contract

Delict distinguished from infringements of the bill of rights

Historical Background

Roman origin

The Aquilian Action

Roman law

Roman-Dutch law

The Actio Iniuriarum

Roman law

Roman-Dutch law

Roman-Dutch Law Actions

Action of dependants

Action for pain and suffering

Actions of parents and employers

The Basis of Liability

Roman law

Medieval law

Natural law

Roman-Dutch law

Delict in a Constitutional Era

The influence of the Constitution

Direct application

Indirect application

Constitutional values

Transforming legal values: customary law influences

Transforming legal values: Muslim and Hindu cultures

Application of the constitutional principles

Liability in South African Law

General basis

First principles

Actio doli

Actio quod metus causa

Actio ad exhibendum


Actio de pauperie

Actio de pastu

Actio de feris

Actio de effusis vel deiectis; actio positi vel suspensi

Condictio furtiva

Actio aquae pluviae arcendae; interdictum quod vi aut clam

Vicarious liability: general principles

Vicarious liability: employers

Vicarious liability: mandators

Vicarious liability: motor vehicle owners

Vicarious liability: possible other categories

Independent contractors


Delict and harm

Patrimonial loss

Non-patrimonial loss

Pain and suffering

Injury to personality

Prospective or future harm

Title to Sue


Government and public figures

Juristic persons

The Bill of Rights







Actio legis Aquiliae

Actio iniuriarum

Action for pain and suffering

Exclusion and Immunity from Suit

Concurrence of actions: general

Delict and breach of contract: concurrence of actions

Delict and a constitutional remedy: concurrence of actions

Statutory exclusions

Exclusion clauses


Parliamentary immunity



Positive conduct and omissions


Basic requirement

Wrongfulness and causation

Wrongfulness and fault

The criterion for determining wrongfulness

The role of rights and duties in determining wrongfulness

The role of forseeability in determining wrongfulness

The role of fault in determining wrongfulness

The Bill of Rights

Infringement of a right

Breach of a legal duty

The duty of care

Liability for omissions

Liability for statements

Fraudulent misrepresentation

Liability for psychiatric injury

Liability for pure economic loss

Interference with contractual relations

Unlawful competition: general principles

Unlawful competition: passing off

Unlawful competition: confidential information and trade secrets

Boycotts, strikes, demonstration and pickets

Manufacturers' liability

Unlawful competition: injurious falsehood

Breach of a statutory duty or negligent exercise of a statutory power



Wrongful detention of goods

Infringement of the right to corpus: bodily integrity

Infringement of the right to corpus: deprivation of liberty

Infringements of dignitas

Infringements of dignitas: privacy

Infringements of dignitas: identity

Infringement of fama: defamation

Infringement of fama: defamation – publication

Infringement of fama: defamation – defamatory material

Infringement of fama: defamation – reference to plaintiff

Infringement of fama: malicious prosecution

Abuse of rights

Defences: Grounds of Justification

Grounds of justification: general

Grounds of justification: onus of proof



Statutory authority

The exercise of a right

Parental authority

Public office

Legal practitioners

Obedience to orders


Volenti non fit iniuria: general

Volenti non fit iniuria: requirements

Volenti non fit iniuria: legally-acceptable consent

Volenti non fit iniuria: a unilateral act

Contributory intention

Truth and public benefit

Fair comment

Privileged occasion: general principles

Privileged occasion: exercising a right or discharging a duty

Privileged occasion: judicial or quasi-judicial proceedings

Privileged occasion: reports on proceedings

Reasonable publication

Public interest privilege





Intent (dolus)

Liability of media under the actio iniuriarum

Intent and motive

Defences excluding intent

Defences excluding intent: mistake

Defences excluding intent: jest

Defences excluding intent or accountability: provocation

Defences excluding intent or accountability: intoxication

Defences excluding intent or accountability: emotional distress

Defences excluding accountability: capacity

Intent: onus of proof

Negligence: general

Negligence: the reasonable person

Negligence: the reasonable person's knowledge

Negligence: the reasonable person's subjective beliefs, attitude and approach

Negligence: the reasonable person's mental capacity

Negligence: the reasonable person's physical attributes

Negligence: the reasonable person's skills

Negligence: the test

Negligence: onus of proof

Negligence: res ipsa loquitur

Negligence: foreseeability of harm

The foreseeable plaintiff

Negligence: application of the foreseeability test

Negligence: application of the foreseeability issue

Negligence: application of the preventability issue

Negligence: general practice

Negligence: breach of a statutory duty

Negligence: legitimate assumptions

Negligence: errors of judgment

Negligence: circumstances

Negligence: sudden emergency

Negligence: danger to children

Negligence: organs of state

Negligence: experts

Negligence: beginners

Negligence: children


Roman and Roman-Dutch law

Causation: two elements

Factual causation: general

Factual causation: condition sine qua non

Factual causation: a flexible approach

Factual causation: application of the condition sine qua non test in omission cases

Factual causation: multiple causes

Legal causation

Intended consequences

Direct consequences

Novus actus interveniens


Adequate cause

Legal causation: multiple causes


Available remedies



Retraction and apology


Purpose of delictual damages

General and special damages

Actual loss

Damage to property


Loss of support

Loss of earnings and of earning capacity

Illegal earnings

Prospective loss

Once and for all rule

Psychiatric injury

Pain and suffering


Collateral benefits or res inter alios actae

The award

Previous awards

Constitutional values

Subjective value



Time of assessment




Reduction and Apportionment of Damages

Contributory negligence: background

Contributory fault

Apportionment between plaintiff and defendant

Contributory intent

Common law

Apportionment of Damages Act: section 2

Nature of the proceedings involving joint wrongdoers

Multiple plaintiffs and defendants