INTRODUCTION

A delict occurs when one party commits a wrong against another. The basic elements of delict are conduct, wrongfulness, fault, causation and damage. As a starting point, it is essential to realise that all five elements mentioned above must be present before a person can be set to be delictually liable.

In this regard, a comparison can be made to a boy trying to retrieve a kite in a rather high tree. To do this the boy will need five objects, namely, a box, a table, a chair, the boy himself, and a tennis racket.

The boy will place the chair on the table and use the box to climb on the table. Once he is on the table, he will then climb onto the chair, taking with him the tennis racket. Then if he stretches out, and with the help of the tennis racket, he will be able to knock the kite out of the tree.

Should any of these objects not be available, the boy would not be able to reach the kite. Similarly, should any of the elements of delict be absent, it cannot be said that delict is committed

CONDUCT

DEFINITION

Conduct is a voluntary human act or omission.

CHARACTERISTICS

The characteristics of conduct are as follows:

  1. the act must be that of a human being.
  2. The act must be performed voluntarily.
  3. Conduct maybe in either the form of positive act (e.g. driving into someone) or an omission (e.g. forgetting to put on a handbrake on an incline resulting in a collision).

DEFENCE OF AUTOMATISM

Automatism is a defence available to someone who did not act voluntarily.

Examples of automatism are absolute compulsion (e.g. having a gun pointed at one's head), epileptic fit, mental disease and hypnosis.

The defence of automatism is not available if the Defendant intentionally or negligently creates situation in which he acts involuntarily (e.g. driving a car when you know you are prone to epileptic fits).

WRONGFULNESS

For delictual liability to be conferred upon the Defendant, his conduct must be regarded as wrongful.

To determine whether or not conduct is wrongful, the following two questions need to be asked:

  1. Is there a legally recognised interest that has been infringed?
  2. Was the legally recognised interest infringed wrongfully or in an unreasonable manner?

If the answer to the above two questions is yes, the conduct is wrongful.

WHEN CAN WRONGFUL CONDUCT BE EXCUSED?

Our law recognises the following circumstances where wrongful conduct can be excused:

Private defence

Private defence occurs when someone defends his or someone else's rights from a third party. An example would be shooting someone who is trying to kill you.

Necessity

A state of necessity exists when the Defendant is placed in such a position by superior force that he is able to protect his interests (or those of somebody else) only by damaging the interests of an innocent Third Party. This situation would arise by breaking down someone else's door in order to escape a fire. It could also arise when a motorist swerves into another in an attempt to avoid a pedestrian

Provocation

Provocation is present when a Defendant is provoked or incited by words or actions to cause harm to the Plaintiff.

Consent
Where a person legally capable of expressing his will gives consent to injury or harm, the causing of such injury or harm will be lawful. An example would be being tackled in a rugby game. In the normal cause of events being tackled could amount to assault. However, it is accepted that people who play rugby consent to being tackled.

Statutory Authority
A person does not act wrongfully if he performs an act while exercising a statutory authority.

Official capacity
Certain public officials such as members of the police force, are obliged or authorised by law to perform certain acts. Should they cause damage in the process, their conduct will be justified and consequently they will not be liable. An obvious example would be a policeman arresting a suspect.

Execution of an official command
Infringements of interests in carrying out lawful commands are obviously not wrongful.

Power of chastisement
Parents and persons in loco parentis (e.g. guardians) have by virtue of the authority over children, the power to chastise them.

FAULT

Two main forms of fault are found, namely, intention and negligence.

In short, fault means that a person can be blamed for his conduct.

However, before a person can be blamed for his conduct, one has to establish whether he can be held accountable.

ACCOUNTABILITY

A person is accountable for his actions if he can distinguish between right and wrong and act in accordance with such distinction.

If a person is found not to be accountable, no fault can be attributed to him.

In terms of South African law, people have been found not to be accountable when one or more of the following factors are present:

  • Youth
    • Ages 1 - 7 (infants) - can never be accountable
    • Ages 7 - 14 (impubes) - can be proved to be accountable
    • Ages 14 onwards - accountable
  • Mental illness or disease
  • Intoxication
  • Provocation

INTENT

A person acts intentionally if he purposely does something he knows to be wrong.

NEGLIGENCE

Negligence on the other hand occurs when a person unintentionally commits a wrongful deed.

In this regard, the reasonable man test is used which involves the answering of two questions:

  1. Would the reasonable man have foreseen his conduct causing damage?
  2. If so, could any steps have been taken to avoid the damage?

A person is negligent if the answer to both questions is yes.

CAUSATION

For a delict to exist there must be a connection (causal nexus) between conduct and damage. In other words, did the conduct cause the damage?

DAMAGE

Damage includes both patrimonial (pecuniary) as well as non-patrimonial (non-pecuniary loss).

PATRIMONIAL LOSS

Patrimonial loss can be expressed in money. A simple example would be the damage caused to one's vehicle in a collision. The costs in repairing the vehicle would be patrimonial loss.

An important aspect to remember in respect of patrimonial loss is that of mitigation of loss. The Plaintiff has a duty to prevent any further damage a Defendant has caused. If he does not take reasonable steps to prevent further damage, the Plaintiff will not be able to claim the further damages from the Defendant. However, the Plaintiff, if he does take reasonable steps, to mitigate his loss, is entitled to recover the costs of the reasonable steps taken from the Defendant.

NON PATRIMONIAL LOSS

Non patrimonial loss does not really have a monetary value. However, the damages awarded will be in monetary terms.

Examples of non-patrimonial loss are pain and suffering, emotional shock, disfigurement, loss of amenities of life and shortened life expectancy.