Sources of Delict in South African Law

Sources of Delict in South African Law

• South African law combines Roman-Dutch, English, and African customary law.
• Delictual principles are predominantly based on common law.
• Key legislation impacting delict includes the Road Accident Fund Act, Consumer Protection Act, Prescription Act, and Apportionment of Damages Act.
• The 1996 Constitution guides common law development to align with multicultural values and the Bill of Rights.

Comparative Perspective

• South African law uses general principles like actio legis Aquiliae and actio iniuriarum.
• Anglo-American systems have distinct torts for specific situations.

Historical Background

• Courts often review historical origins (Roman and Roman-Dutch law) to understand delictual principles.

Case: Nkala v Harmony Gold Mining Co

• Issue: Transmissibility of delictual claims (e.g., pain and suffering) to deceased estate.
• Plaintiffs' Argument: Current and former mineworkers suffering from work-related illnesses; sought recognition of liability for pain and suffering.
• Court's Findings: Claims for patrimonial loss (e.g., medical costs) are transmissible regardless of the stage of proceedings. Claims for non-patrimonial losses (e.g., pain and suffering) are transmissible only after litis contestatio. (The claim may disappear if plaintiff dies before litis contestatio). The court developed common law to comply with the Constitution's section 39(2) objectives.

Historical Development of Delictual Actions

Roman Law

• Delictual obligations arose from contracts, delicts, or quasi-delicts.
• Four recognized delicts: furtum (theft), rapina (robbery), damnum iniuria datum (wrongful property damage), iniuria (insulting behavior).

Damnum Iniuria Datum

• Initially for direct physical damage (e.g., injury to livestock).
• Later to include patrimonial loss without direct physical damage (e.g., loss of slave).

Iniuria

• Covers physical assault, dignity infringement (e.g., tearing a toga), and reputational harm.

Damage by Animals

• Liability for harm by domestic, grazing, and wild animals (actio de pauperie, actio de pastu, actio de feris).

Quasi-Delicts

• Liability without fault in scenarios like objects falling, dangerous items, and innkeepers' liability (nautae, caupones, stabularii).
• South African application: Similar to modern South African rules, actio de effusis vel deiectis, and actio de positis vel suspensis actions are continued. The scope remained limited to the Roman principles and was not vastly expanded.

Case: Swart v Shaw t/a Shaw Racing Stables

• Issue pertinent to the innkeepers' liability recognized in Roman law.
• Limited application: Applicable to traditional innkeepers and stablekeepers, not modern equivalents (e.g., racehorse trainers).

Action for Pain and Suffering

Roman Position

• No action for pain and suffering under actio legis Aquiliae; individuals' bodies not considered "property."

Roman-Dutch Position

• Independent remedy for non-patrimonial losses (pain, suffering, disfigurement, loss of amenities).
• Originated from Germanic law, separate from lex Aquilia.

Modern Evolution

• Developed into the current action for pain and suffering.

African Customary Law and Delict

• Distinction between official customary law and living customary law; no clear criminal/delict distinction.
• Recognized delicts: sexual wrongs, property damage.
• Injuries or deaths, traditionally crimes, became delicts when certain stipulations were amended by statutes, such as the Black Laws Amendment Act 76 of 1963.

Study Unit 2: Conduct

• Delictual liability hinges on voluntary human conduct.

Conduct Types

• Positive physical act.

• Positive statement or comment (commission).

• Failure to act or speak (omission).

• No general duty to prevent harm to others.

Animal Behaviour

• Actions related to domestic animals that involve fault on the owner's behalf.
• Liability for damage to plants or crops caused by grazing animals.

Human Conduct

• Only natural persons can be directly held liable.
• Juristic persons (e.g., companies) can be sued; actions of directors become the company's actions.
• Employers may be held vicariously liable for employee delicts.

Voluntary Conduct & Defence of Automatism

• Voluntary conduct demands capacity to direct muscular activity.

• Children and the mentally ill may lack accountability.

• Defence of automatism: defendant must demonstrate involuntary (e.g., compulsion, reflex action, unconscious state) act.

• The defence of automatism will not succeed when acts are impulsive, spontaneous, or when the defendant intentionally set a stage for harm.