The Law
Supreme Court of Appeal Bloemfontein
South African law of delict From Wikipedia, the free encyclopedia Jump to: navigation, search 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,"[2] and list the elements of delict as
In contrast to the casuistic approach of the Roman law of delict, the South African law of delict is based [...] on three pillars: the actio legis Aquiliae, the actio iniuriarum and the action for pain and suffering. Unlike the last-mentioned action which developed in Roman-Dutch law, the first two remedies had already played an important role in Roman law.[5]
The delictual inquiry "is in fact a loss-allocation exercise, the principles and rules of which are set out in the law of delict."[6] The classic remedy for a delict is compensation: a claim of damages for the harm caused. If this harm takes the form of patrimonial loss, one uses the Aquilian action; if it takes the form of pain and suffering associated with bodily injury, a separate action arises, similar to the Aquilian action but of Germanic origin; finally, if the harm takes the form of injury to a personality interest (an injuria), the claim is made in terms of the actio injuriarum.
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,"[2] and list the elements of delict as
- "harm sustained by the plaintiff;"
- "conduct on the part of the defendant which is wrongful;"
- "a causal connection between the conduct and the plaintiff's harm;" and
- fault or blameworthiness on the part of the defendant."[3]
In contrast to the casuistic approach of the Roman law of delict, the South African law of delict is based [...] on three pillars: the actio legis Aquiliae, the actio iniuriarum and the action for pain and suffering. Unlike the last-mentioned action which developed in Roman-Dutch law, the first two remedies had already played an important role in Roman law.[5]
The delictual inquiry "is in fact a loss-allocation exercise, the principles and rules of which are set out in the law of delict."[6] The classic remedy for a delict is compensation: a claim of damages for the harm caused. If this harm takes the form of patrimonial loss, one uses the Aquilian action; if it takes the form of pain and suffering associated with bodily injury, a separate action arises, similar to the Aquilian action but of Germanic origin; finally, if the harm takes the form of injury to a personality interest (an injuria), the claim is made in terms of the actio injuriarum.
