FACULTY OF COMMERCE, ADMINISTRATION & LAW

DEPARTMENT OF LAW

LEARNER GUIDE
YEAR: 2023

Module Title
Law of Delict

Module Code
2LPD 301

Module Credit Value

12

Level of study 3

SAQA Credits
12 points

Notional Hours 120 hours

NQF Level 7

Lecturer(s) Mr MC Buthelezi

Full Title of the

Programme the Module LLB DEGREE
belongs to
 01 February 2023

Dear Learner

Welcome to the Law of Delict - 2LPD 301. You will soon discover to your own
excitement and comfort that this module is very much unlike other modules you have
encountered in your study of Private law. Here we introduce you to the exciting world
of Law of Delict and widen your practical and theoretical legal horizons. In this
module, you are introduced to the law that governs the substantive issues to civilian
claims and court decisions.

From a teaching/learning perspective, this module will afford you the chance to
develop your potential through participating in class discussions and individual
assessments, in the form of assignments and tests, which shall be reflectively
evaluated. In this vein, therefore, the teaching methods shall be interactive rather
than lecturer-focused. Active participation in class and problem-solving shall be
rewarded by way of inclusion in the calculation of the year marks. The guiding
principle/philosophy in this module is that all potential answers will be subject to
scrutiny and further qualification. Usually, we will strive to make our teaching
methodology as interactive and reflective as possible.

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(i) Lecturer’s contact details

Contact : 035 902 6117

E-mail : [email protected]
Office : Room 325 Building D Block
(KwaDlangezwa Campus)

PLEASE NOTE: Ensure that you provide me with the following information when you
address an email to me regarding any query:

 Name;
 Student Number; and
 Module Code.

(i) Time Slots

1. Lecture Times
Day of the week Timeslot Venue
Monday 10:30
Tuesday 10:30
Friday 10:30

2. Consultation times
Day of the week Timeslot Venue
Monday 12:00 – 13:30 Office 325
Tuesday 13:00 – 14:30 Office 325
Friday 12:00 – 13:00 Office 325

All consultations will be via email ([email protected]) or by

appointment.

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(ii) Tutor’s contact details

Contact: NA
E-mail : NA

Consultation times

(iii) Departmental secretary

Contact: 035 902 6212

E-mail : [email protected]
Office: Room 321

TABLE OF CONTENTS

(i) Lecturer’s contact details...............................................................................2

(ii) Tutor’s contact details....................................................................................3
(iii) Departmental secretary..................................................................................3
1. ROLES AND RESPONSIBILITIES......................................................................5
a) LECTURER.......................................................................................................5
b) THE LEARNER.................................................................................................5
c) LEARNER SUPPORT AVAILABLE.....................................................................5
One of the duties of an academic is to do research. One of the research components
in an academic’s research profile is research on our teaching and learning – both
from a lecturer and a student perspective. As such, I may use your marks, comments
and experiences in research pertaining to teaching and learning. The information that
may be used will be used in such a manner that it cannot be attributed to any person.
Your personal information, including but not limited to your name and student number
will never be disclosed or be made available in any research that may be conducted.6
4. Changes............................................................................................................... 6
In the event that we face some unexpected challenges that require amendments to
this student guide or any of the content therein you will be notified on Moodle via the
forum platform. Important changes such as amendments to dates, the curriculum or

3
any of the content included in this guide will be clearly indicated and a revised guide
will be uploaded with any new or amended elements highlighted in yellow.................6
OTHER SUPPORT AVAILABLE..............................................................................7
1 LEARNING COMPONENT...................................................................................7
1.1 Purpose of the Module...................................................................................7
1.2 Module outcomes...........................................................................................7
1.3 Learning Unit breakdown...............................................................................9
2 ASSESSMENT COMPONENT...........................................................................68
2.1 Assessment Plan..........................................................................................68
2 ASSESSMENT COMPONENT...........................................................................68
2.1 Assessment Plan..........................................................................................68
2.2 Rules and requirements during assessment activities.................................68
2.2.5 Qualifying for exams..............................................................................70
In order to qualify to write the examinations you need to achieve a DP mark of at
least 40% to sit the examination. If your DP is less than 40% you do not qualify to
write the examination.............................................................................................70
2.2.6 Pass mark....................................................................................................70
In order to pass this module, you require a total final mark of 50%. The final mark
is calculated as 50% of your DP mark, as calculated according to the weights
provided in paragraph 2.1. Thereafter, 50% of your examination mark makes up
the full 100%..........................................................................................................70
For example, if you achieve 45% for your DP and 55% for your examination mark,
you will achieve a final mark of 50% and pass the module....................................70
2.4 Self-assessment activities............................................................................71
2.5 Glossary of unfamiliar terms / concepts / acronyms....................................71
3 READINGS.........................................................................................................71
3.1 Prescribed Readings....................................................................................72
4 GUIDELINES FOR LEARNERS.........................................................................72
ANNEXURE A.............................................................................................................1

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1. ROLES AND RESPONSIBILITIES

a) LECTURER

The lecturer is expected to:

 give and facilitate all prescribed lectures in class;

 give feedback on all assessments timeously
 give learners the relevant guidance and
 mentor all learners assigned to him in terms of the module for which he is
responsible

b) THE LEARNER

 Learners are expected to attend all lectures and be on time.

 There will be a number of assessments set for the module either in a form
of class tests or written assignments such as essays and /or practical
reports. You will be expected to hand them in before or on due date.
 You are expected to do your own work independently. Plagiarism is a
criminal offence. Please acknowledge sources in your work and use
proper referencing methods.
 Class participation & activities
 Group/Team work responsibilities
 Participate in learner evaluation of the lecturer, of the module, etc.
 Engage in self-directed learning
 Identify own Learning style

c) LEARNER SUPPORT AVAILABLE

1. Moodle
Due to the ongoing COVID-19 pandemic, the University of Zululand has
adopted a blended learning approach. This means that online learning will
continue through Moodle and face-to-face
5 sessions will be limited to that
which the lecturer deems is necessary.
Therefore, you are to ensure that you regularly log on to Moodle in order to
ensure you stay up to date with all online lecture sessions, and the work
2. Library

It is in your bests interests to use the resources available to you in the library, as well
as the electronic resources available on the library website – library.unizulu.ac.za.

The law subject liberian is Mr Mlungisi Thusi ([email protected]) who may

assist you with any additional help you may need accessing resources from the
library.

Please see the below links to access various online resources to aid you in your
studies:

 E-books: Search for books by clicking here

 Databases (for example LexisNexis, JutaStat, Sabinet): Click here

Please note: The prescribed textbook is not available on the e-book.

3. Consultation

Please see the consultation times available stated above and utilise the opportunity
to consult with the lecturer if you require clarity. If you require a consultation time slot
outside of the hours indicated above, please email me directly to set up an
appointment.

4. Research

One of the duties of an academic is to do research. One of the research components

in an academic’s research profile is research on our teaching and learning – both
from a lecturer and a student perspective. As such, I may use your marks,
comments and experiences in research pertaining to teaching and learning. The
information that may be used will be used in such a manner that it cannot be
attributed to any person. Your personal information, including but not limited to your
name and student number will never be disclosed or be made available in any
research that may be conducted.

5. Changes

In the event that we face some unexpected challenges that require amendments to
this student guide or any of the content therein you will be notified on Moodle via the

6
forum platform. Important changes such as amendments to dates, the curriculum or
any of the content included in this guide will be clearly indicated and a revised guide
will be uploaded with any new or amended elements highlighted in yellow.

6. OTHER SUPPORT AVAILABLE

 The writing centre

_____________

1 LEARNING COMPONENT

1.1 Purpose of the Module

From a teaching/leaning perspective, this module will afford you the chance to
develop your potential through participating in class discussions and individual
assessments, in the form of assignments and tests, which shall be reflectively
evaluated. In this vein therefore, the teaching methods shall be interactive rather
than lecturer focused.

1.2 Module outcomes

1.2.1 Specific outcomes

By the end of the course you ought to have gained the following:

Knowledge
Of the importance, purpose, function and identification of a delict;
 Of the sources of the law relating to litigation and how the law and statutes
interact in this regard;
 Of the legal terminology associated with delict;
 Of the principles of delict that have evolved in our common law and statutory
and case law;
 Of the significance of delict in everyday litigation in the Republic of South
Africa.

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Skills
 The ability to engage with, manage and reflect critically on the relatively
challenging amount of course material acquired in such a short time;
 The ability to analyse and apply the rules and substantive law;
 The ability to communicate the legal position on a particular aspect, as well as
the independent thinking thereon in written and oral mode;
 The ability to read and analyse legislation and court decisions in a critical
manner and to apply the principles to practical problems.

Values
 An appreciation of the impact and validity of the principles of delict in daily
commercial practice and civil society;
 An appreciation of the need for the evaluation of, and critical challenges to
civil law so as to keep it up to date with the needs of the South African
community that it serves; and
 An appreciation of academic integrity in acknowledging sources in research.

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1.3 Learning Unit breakdown

PART A: THE LEX AQUILIA

LEARNING UNIT 1: The Law of delict

Unit learning At the end of this learning unit you should be able to –
objectives:  different between contracts, delict and unjustified
enrichment as sources of the law of obligations;
 identify the essential requirements for a liability in delict;
 outline the influence of the Constitution on the law of
delict;
 apply all the above to a set of facts.

RESOURCES:
 Textbook Reading: Loubser, 2nd edition pp 3-42
Loubser, 2nd edition pp 43 -

 Delict as a source of obligations.

 Delict distinguished from a crime.
 Delict distinguished from a breach of contract.

Lillicrap, Wassenaar & Partners v Pilkington Bros SA 1985(1) SA 475 (A) 496, 499
Administrator, Natal v Edouard 1990 (3) SA 581 A
Kohler Flexible Packaging (Pinetown) Pty Ltd v Marianhill Mission Institute 2000 (1)
SA 141D
 Distinction between Aquilian Action (Lex Aquilia) and Actio Iniuriarum.
 The law of delict, the Constitution and fundamental (human) rights.

Fose v Minister of Safety and Security 2001 (4) SA 938 (CC)

Families of mental health care users affected by the Gauteng Mental Marathon
Project vs National Minister of Health of the Republic of South Africa & others (Life
Esidimeni Arbitration award), 2018
Amod v MMVA Fund 1999 (4) SA 1319 SCA
Carmichele v Minister of Safety & Security 2001 (4) SA 938 (CC)
Dendy v University of the Witwatersrand [2007] SCA 30 (RSA).

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1. Essential elements for liability

In order for a person to be liable for a delict causing pecuniary loss under the Lex
Aquilia, the injured person (plaintiff) must prove the following:

1) that the wrongdoer committed some act or omission (conduct);

2) that the act complained of was wrongful (wrongfulness);
3) that responsibility for the loss is imputable to the fault of the defendant/wrongdoer
i.e. presence of dolus or culpa (fault);
4) that the aggrieved party has suffered patrimonial loss i.e. actual loss capable of
monetary/pecuniary assessment (harm or damages); and
5) that the wrongdoer’s act must have caused the loss suffered by the plaintiff and
the resulting harm must not be too remote (causation).

1.1 Damages/harm/loss

Reading: Loubser, 2nd edition pp 43-62; Neethling, chapter 6, pp 211-252

 The concept of damages (loss or harm)

Union Government (Minister of R & H) v Warneke 1911 AD 657
Dippenaar v Shield Insurance Co Ltd 1979 (2) SA 904 (A)
Guardian National Insurance Company Ltd. v Van Gool NO (1992 (4) SA 61 (AD);
[1992] 2 All SA 287 (A) (29 May 1992)
K v Road Accident Fund (A913-2014) [2016] ZAGPPHC 494 (30 June 2016), par 14
Southern Insurance Association v Bailey NO 1984 1 SA 98
F v Minister of Safety and Security and Another 2014 (6) SA 44 (WCC)
Rudman v RAF 2003 (2) SA 234 (SCA)
Transnet Ltd v Sechaba Photoscan (Pty) Ltd 2005 (1) SA 299 (SCA)
Santam Versekeringsmaatskappy Bpk v Byleveldt 1973 (2) SA 146 (A)
Van der Merwe v Road Accident Fund and Another 2006 (4) SA 230 (CC)

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1.2 Conduct

Reading: Loubser, 2nd edition pp 63-68; Neethling, pp 25-32

1.2.1) The nature and characteristics of conduct.

 Conduct may be in the form of commission or omission;
 Only an act of a human being is accepted as conduct;
 Human action only constitutes conduct if it is performed voluntarily.

1.2.2) The defence of automatism.

 Voluntary conduct on the part of the defendant is a requirement for delictual
liability.

 In certain instances, a defendant may rely on the defence of automatism to

negate the presence of voluntary conduct.

 The following conditions may cause a person to act involuntarily in that they
render him incapable of controlling his bodily movements:

i) Sleepwalking – R v Dhlamini 1955 (1) SA 120 (T) 122

ii) Fainting fit – R v Rossouw 1960 3 SA 326
iii) Epileptic fit – R v Victor 1943 TPD 77, R v Mkhize 1959 2 SA 260 N
iv) Serious intoxication, blackouts, heart attack, hypnosis, strong emotional
pressure.

 The defence will not succeed if the defendant intentionally created the
situation in which he acts involuntarily to harm another (this is known as the
Actio libera in causa).

 The defendant will be held liable for his culpable conduct in creating the state
of automatism, which resulted in damage to the plaintiff.
S v Baartman 1983 4 SA 395 (NC)

 However, the defendant may not successfully rely on the defence of

automatism where he was negligent with regard to his ‘automatic conduct’.
Wessels v Hall and Pickles (Coastal) (Pty) Ltd 1985 4 SA 153 C

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1.2.3 Wrongfulness

Reading: Loubser, 2nd edition pages 139-161; Neethling, pp 33-56

i) Introduction
 The act complained of must be wrongful.

What the law regards as wrongful is essentially a policy consideration depending

on the prevailing boni mores of the society at the time.

 Therefore, a person (plaintiff) can only bring an action for injury if the wrongdoer
(defendant) has breached/infringed a lawfully recognized right or interest. It
follows that if the plaintiff has a legally protected right, he has an action, if not the
loss lies where it falls – onto the plaintiff.

ii) The criterion for determining wrongfulness:

 Wrongfulness is determined according to the general criterion of reasonableness.

Conduct is wrongful or unlawful if it is unreasonable, in other words when, in the
light of all the circumstances, the defendant is expected to behave in a manner,
which will not harm the plaintiff - Moses v Minister of Safety and Security 2000 3
SA 106 (C) (at 114H - H/I and 115A - B/C.),
Carmichele v Minister of Safety & Security 2001 (4) SA 938 (CC) (supra)
Van Eeden v Minister of Safety & Security 2003 1 SA 389 (SCA); 2002 4 All SA
346 (SCA) par [9]

 Courts also refer to concepts such as ‘boni mores’, prevailing conceptions of the
community, or legal convictions of the community. Each of these is merely a
different expression of the general criterion of reasonableness.

Van Eeden (supra) par [10]

Aucamp v University of Stellenbosch 2002 4 SA 544 (C) par [68]
 The enquiry into wrongfulness involves considerations of public and legal policy.
Courts are required to render a value judgment as to what society’s notions of
justice demand, either to protect the plaintiff’s interests, or to give judicial
sanction to the defendant’s conduct. In doing so, a court must consider all the
circumstances of the case.

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 Conduct is said to be wrongful, if (i) it interferes with a person’s subjective right in
a legally unacceptable way; or (ii) it constitutes the breach of a duty owed by the
defendant to the plaintiff which is recognized in law for the purposes of liability.
Minister of Law & Order v Kadir 1995 1 SA 303 A
Minister of Polisie v Ewels (supra)

 The reasonableness test in the context of wrongfulness enquiry is objective and

different from the test for negligence.

 Ultimately, what the law regards as wrongful is essentially a policy consideration

depending on the prevailing boni mores of the society at the time. The conduct
becomes wrongful when it is contrary to the law and prevailing norms or when it
is legally unreasonable.

iii) The import of (the Constitution and) the Bill of Rights

 Infringement of rights entrenched in chapter 2 of the Constitution does not per se

entitle a person to sue in delict or result in successful delictual claims.

 To found a claim for compensation the fundamental right must

1) be recognised as a subjective right, or create a legal duty in

delict; and

2) the infringement of a right or breach of a duty must violate a

societal norm.
Jooste v Botha 2000 2 SA 199 (T), 2000 2 BCLR 187 (T)
Carmichele v Minister of Safety and Security (supra)

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  Still, the Constitution forms the backdrop to any wrongfulness enquiry.

Van Eeden v Minister of Safety & Security 2003 (1) SA 389 (SCA), pars [12] –
[13]
Loureiro and others v iMvula Quality Protection (Pty) Ltd 2014 (3) SA 394
(CC), par [53]
Minister of Safety & Security v Van Duivenboden 2002 (6) SA 431 (SCA)
Sokhulu v New Africa Publications Ltd 2001 4 SA 1357 (W), 2002 1 All SA
205 (W) par [11]
Faircape Property Developers (Pty) Ltd v Faircape Property Developers (Pty)
Ltd 2003 (6) SA 13 (SCA)

iv) The tests for wrongfulness

Two tests are used for wrongfulness; namely the boni mores or legal convictions of
the community test and the infringement of subjective rights test.

aa) The boni mores test

 The boni mores test is an ex post facto balancing of the competing interests

 The test is based on the reasonableness or unreasonableness of the defendant’s

conduct based on all the circumstances of the case

 Takes into account all the relevant circumstances and all pertinent factors, such
as:
 The relationship between the parties involved & the social
imposition or denying of liability in a particular situation;
 the extent and nature of harm;
 foreseeable or foreseen loss;
 the costs and effort of steps that could have been taken to
prevent loss;
 the degree of probability of success of preventative measures;

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  the motive of the defendant and knowledge on his part that his
conduct would have caused harm;
 economic considerations;
 values underlying the Constitution;
 the legal position in other countries;
 the ethical and moral issues; and any other considerations of
public interest or public policy

Loureiro and others v iMvula Quality Protection (Pty) Ltd 2014

(3) SA 394 (CC)
Van Eeden v Minister of Safety & Security 2003 1 SA 389
(SCA); 2002 4 All SA 346 (SCA)

bb) Infringement of subjective rights test

 The fundamental facet of this doctrine is that wrongfulness consists of the

infringement of a subjective right(s), in violation of a legal norm

 the test entails that everyone as a legal subject is a holder of subjective rights,
 including
 real rights;
 personality rights;
 immaterial property rights;
 personal immaterial property rights, etc.

 the existence of subject-object relationship, that is, a legal subject has a

relationship with the object over which he exercises power and

 the existence of a subject-subject relationship - a relationship between a holder of

subjective rights and other legal subjects

 A holder must use his legal object as he pleased but only within the law,
 who has a duty to refrain from infringing upon the relationship between the holder
of a right and his legal object, and
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 that each subjective right is enforceable against all other legal subjects,

 The test uses a two-pronged investigation, namely:

> has the subject-object relationship in fact been disturbed,

Coronation Brick (Pty) Ltd v Strachan Construction Co (Pty) Ltd 1982 4

SA 371 D

Clarke v Hurst 1992 4 SA 630 D 651

> was the violation of a legal norm caused in a legally impermissible manner
(in case the answer to the first question is positive)?

cc) Liability for omission & breach of a legal duty

Reading: Loubser, 2nd edition pp 219-223; Neethling, pp 57-82

 It is generally accepted that there is no liability for a ‘mere omission’ in our law.

 In certain circumstances, however, the courts have imposed liability for an

omission – where there is some nexus/link between the plaintiff and the
defendant:

1) Where there is prior conduct by the defendant. In such a case

liability is founded on a combination of the previous conduct and the
subsequent omission to act reasonably.

Silva’s Fishing Corporation (Pty) Ltd v Maweza 1957 (2) SA 256(A)

Moses v Minister of Safety & Security 2000 (3) SA 106 (C), 2002 1
All SA 89 (C)

2) Where the defendant is in control of a potentially dangerous

situation, thing or person

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 Silva’s Fishing Corporation (Pty) Ltd v Maweza 1957 (2) SA 256 AD
Cape Town Municipality v Graham 2001 (1) SA 1197 (SCA)

3) Creation of the impression that the interests of a third party will be

protected.

Compass Motors Industries (Pty) Ltd v Callguard (Pty) Ltd 1990 (2)
SA 520 (W)
SAR & H v Estate Saunders 1931 AD 276

4) Contractual undertaking for the safety of a third party

Loureiro and others v iMvula Quality Protection (Pty) Ltd 2014 (3)
SA 394 (CC)
SAR & H v Estate Saunders 1931 AD 276

5) Where the law (or statutes) imposes a duty

Minister of Safety and Security v Van Duivenboden 2002 6 SA 431

(SCA), 2002 3 All SA 741 (SCA), par [12]
Carmichele v Minister of Safety and Security 2001 4 SA 938 (CC)

Families of mental health care users affected by the Gauteng

Mental Marathon Project vs National Minister of Health of the
Republic of South Africa & others (Esidimeni Arbitration Award),
2018

6) Existence of a special relationship between the parties

 may be an important factor in the determination of the existence

of a duty owed by one party to the other

Mtati v Minister of Justice 1958(1) SA 221 (A)

Minister van Polisie v Ewels 1975 (3) SA 590 (A)
Carmichele v Minister of Safety and Security 2001 (4) SA 938
(CC)

7) Where the defendant occupies a public office

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  Constitutional norms apply particularly in those cases involving
public authorities, whose business it is to serve others.

 The State has a positive constitutional duty to protect

constitutional rights.
Minister of Safety and Security v Van Duivenboden 2002 (6) SA
431 (SCA); 2002 3 All SA 741 (SCA), par [12]
Premier of the Western Cape v Faircape Property Developers
(Pty) Ltd 2003 (6) SA 13 (SCA) par [32]
Van Duivenboden 2002 (6) SA 431 (SCA); 2002 3 All SA 741
(SCA) par [12]

8) Silence

 the failure to say something

 will be actionable only if it conceals something which should
have been revealed.
McCann v Goodall Group Operations (Pty) Ltd 1995 (2) SA 718
(C)
Bowley v Steels (Pty) Ltd v Dalian Engineering (Pty) Ltd 1996
(2) SA 393 (T) 401

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LEARNING UNIT 3: GROUNDS OF JUSTIFICATION (i.e. DEFENCES TO
WRONGFULNESS)
Unit learning At the end of this learning unit you should be able to –
objectives:  understand the circumstances under which an otherwise
infringing conduct may be excusable;
 identify the essential requirements for each defence
excluding unlawfulness of wrongdoer’s conduct;
 outline the influence of the Constitution on the law of
delict;
 apply all the above to a set of facts.

RESOURCES:
 Textbook Reading: Loubser, 2nd edition pp 162-186;
Neethling, pp 82-122

 A ground of justification is a defence that excludes the wrongfulness of the

defendant’s conduct.

 Grounds of justification are typical circumstances, which indicate conclusively

that interference with the plaintiff’s legally protected interests was reasonable and
therefore lawful. In other words, they indicate the circumstances in which society
condones prima facie unlawful conduct.

1.3.2.3.5.1 Private defence

 Private defence is present when the defendant directs his actions against
another’s actual or imminently threatening wrongful act in order to protect his own
legitimate (legally recognised) interests or such interests of someone else. Both
the attack and the defensive conduct must meet certain requirements for the
defence to be applicable.

1.1. Requirements for the attack

1.1.1. The attack must consist of a human act.

1.1.2. The attack must be wrongful; in other words, it must threaten or violate
a legally protected interest without justification.

1.1.3. The attack must already have commenced or be imminently

threatening, but must not yet have ceased.

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 Ntsomi v Minister of Law and Order 1990 1 SA 512 (C) 526

1.2. Requirements for the defensive act

1.2.1. The defence must be directed against the aggressor himself.

1.2.2. The defence must be necessary to protect the threatened right.

1.2.3. The act of defence must not be more harmful than is necessary to ward
off the attack.

Ntamo v Minister of Safety and Security 2001 (1) SA 830 (Tk)

Kgaleng v Minister of Safety and Security 2001 (4) SA 854 (W)

1.3.2.3.5.2 Consent (Volenti non fit iniuria)

 A person who willingly consents o the defendant’s act, in the form of either a
specific harmful activity or act involving a risk of harm, cannot complain that a
delict has been committed against him or her.

1.1 The nature of consent

1.1.1 Consent to injury is a unilateral act.

1.1.2 Consent is a legal act that restricts the rights of the prejudiced
person.
R v Taylor 1927 CPD 16, at 20

1.1.3 Consent may either be expressly, or tacitly;

R v M 1953 4 SA 393 A

1.1.4 Generally, a prejudiced person must himself consent, not someone

else on his behalf.

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 1.1.5 Consent must be given prior to the prejudicial act, not after.
1.2 The requirements for establishing consent

1.2.1 The plaintiff must have had knowledge of the harm or risk involved in
the defendant’s conduct, in terms of the nature and full extent
thereof;

 This is known as ‘informed consent.’

1.2.2 the plaintiff must also have appreciated the nature and extent of the
harm and risk involved. Knowledge of the harm or risk involved is not
sufficient.

Waring and Gillow Ltd v Sherborne 1904 TS 340

1.2.3 the plaintiff must also have consented to the infliction of the harm or
assumed the risk implicit in the defendant’s conduct

 other cases:
Esterhuizen v Administrator Transvaal 1957 (3) SA 710 (T)
Santam Insurance Co Ltd v Vorster 1973 (4) SA 764 (A)
Castell v De Greef 1994 (4) SA 408 (C) 425
Stoffberg v Elliott 1923 CPD 148
C v Minister of Correctional Services 1996 (4) SA 292 (T) 300

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1.3.2.3.5.3 Necessity

 An act of necessity may be described as lawful conduct directed against an

innocent person for the purpose of protecting an interest of the actor or a third
party against a dangerous situation. An act done in circumstances of necessity is
justified and therefore lawful.

1.1) A person may inflict harm in a situation of necessity, only if the danger were
present, or was imminent;

1.2) the person has no other reasonable means to averting the danger; and

1.3) the means used and measures taken to avert the danger of harm must not
have been excessive, having regard to all the circumstances of the case.

 cases:
S v Adams, S v Werner 1981 (1) SA 187 A 220
S v Bradbury 1967 (1) SA 387 A 393,404
R v Mahomed 1938 AD 30
Dickens v Lake (1906) 23 SC 201 at 204
Hugo v Page 1944 CPD 119
R v Mtetwa 1921 TPD 227 at 230-232
S v Goliath 1972 (3) SA 1 A
RAF v Grobler [2007] SCA 78 (RSA).

1.3.2.3.5.4 Provocation

 To rely on provocation as a ground of justification, the defendant needs to prove:

 i) that there was sufficient provocation to warrant retaliatory action;

 ii) that the retaliation occurred without pre-meditation and in great and
sudden anger Jassat v Paruk 1983 (4) SA 728 (N) 734,

 iii) that the retaliation followed immediately upon the provocation, and

22
  that iv) the retaliation was moderate, reasonable, and commensurate in
nature and degree with the provocation.
Mordt v Smith 1968 (4) SA 750 (RA).

LEARNING UNIT 4: FAULT

Unit learning At the end of this learning unit you should be able to –
objectives:  understand fault as an essential element for delictual
liability;
 identify the two forms of fault, namely intention (dolus)
and negligence (culpa);
 understand the test and the components making up
negligence in law;
 understand accountability and capacity as an essential
part of fault;
 understand contributory fault and apportionment of as one
defence that may be used to ensure equitable
apportionment of between the plaintiff and defendant;
 apply all the above to a set of facts.

RESOURCES:
 Textbook Reading: Loubser, 2nd edition pp 102-138;
Neethling, pp 123-174

Introduction

 Fault or blameworthiness is the subjective element of a delict. Once the

wrongful character of the defendant’s conduct has been established, the
question of his or her fault arises, and the existence of either intent or
negligence on the part of the defendant forms a basis for imputing the
defendant’s wrongful conduct to him or her.

 Wrongful conduct is imputable to a defendant only if the conduct was

also legally blameworthy. The concepts are distinct. The blameworthiness of
the defendant’s conduct depends on an evaluation of subjective factors
involved in the case. The relevant subjective factors are the defendant’s state
of mind or mental disposition and the degree of care exercised at the time of
the wrongful conduct. There is fault on the part of the defendant if he or she
acted either in a reprehensible state of mind or with insufficient care. Fault in
the form of a reprehensible state of mind is intent, or dolus. Roux v Hattingh
2012 (6) SA 428 (SCA)
23
Fault in the form of inadequate (lack of adequate) care is known as negligence, or
culpa.

Accountability

 The fault enquiry comprises two aspects:

i) First, one must determine the question of accountability: did the defendant, at
the time the harm was sustained, have the legal capacity to be at fault; was the
defendant in law capable of bearing the blame? The test in this instance is
subjective and the personal attributes of the defendant are considered.

ii) If this issue is answered in the affirmative, then one proceeds to the next aspect:
was dolus or culpa present?

 A person is accountable if he or she has:

 firstly, the capacity to appreciate the danger involved in a particular situation;
 secondly, the ability to avoid the danger or take precautionary measures;
and
 Thirdly, the ability to control impulsive conduct.

 In order to determine the capacity to be at fault there must be an enquiry into

the mental, intellectual and emotional development of a particular defendant.
Subjective factors such as, for instance, the person’s knowledge, experience,
training, mental development and maturity must all be taken into account.

 An insane person or an infant (< 7 years of age), is culpae incapax. A child over
seven years of age may have the capacity for fault. A child between 7 – 14
years of age is rebuttably presumed to be culpae incapax.
Weber v Santam Versekeringsmaatskappy Bpk 1983 1 SA 381 (A) 389-390
Damba v AA Mutual Insurance Association Ltd 1981 3 SA 740 (E) 742-743
Ndlovu v AA Mutual Insurance Association Ltd 1991 (3) SA 655 (E) 663

24
Negligence/culpa

 A 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 the harm, and the defendant failed to take such steps.
Kruger v Coetzee 1966 (2) SA 428 (A) 430

 The test for negligence test comprises three parts, i.t.o. Kruger v Coetzee
1966 (2) SA 428 (A) 430:

i) reasonable foreseeability of harm in general;

ii) reasonable precautions to prevent the occurrence of such
foreseeable harm; and
iii) failure (by defendant) to take the reasonable precautions.

 The steps and precautionary measures which a reasonable person would

take in the particular circumstances establish the actual standard of care
required, and the defendant’s failure to take such steps indicates his or her
non-compliance with this standard of care. The foreseeability test therefore
determines both the actual measure of care required and whether or not the
defendant complied with that standard.

 In the Sea Harvest Corporation (Pty) Ltd v Duncan Dock Cold Storage (Pty)
Ltd 2000 (1) SA 827 (SCA); 2000 1 All SA 128 (SCA), the Kruger v Coetzee
formulation, or any modification thereof, was relegated to a formula or guide
that does not require strict adherence or merely a method for determining the
reasonable person standard. However, no other judgment has endorsed such
view.

 The two pillars for the test:

i) The foreseeability of harm;

 The first component of the foreseeability criterion is that the possibility

of harm to others must have been reasonably foreseeable: whether
there was a recognisable risk of harm. The concept of reasonable
foreseeability is not premised upon statistical and mathematical
calculations of the extent of the risk, but on a legal evaluation of the
risk created in a particular situation. Nonetheless, factual evidence of
the frequency of a particular type of incident will assist the court in
making the legal evaluation.

25
  Every human activity entails some possibility of harm to others, and the
mere fact that the risk of harm in particular circumstances is statistically
relatively slight, does not necessarily negate the reasonable
foreseeability of such a possibility of harm. For example, the
statistically calculated chance of a train arriving at a level crossing at
the same moment as a car is crossing it is probably infinitesimally
small; if, however, the driver of the car does not keep a proper lookout
for trains, the risk of harm will be real enough to be regarded as
reasonably foreseeable.

 On the other hand, from a statistical point of view the chance of

causing a traffic accident by driving a car must be reasonably good;
such a risk will, however, ordinarily not be real enough to make the
possibility of harm reasonably foreseeable in the legal sense.

 Certain broad and flexible guidelines have been followed in deciding

what degree of foreseeability must be proved by the plaintiff before a
defendant can be held responsible for the resultant damage:

i) how real is the risk of the harm eventuating?

ii) if the harm does eventuate, what is the extent of the damage likely to
be? and
iii) what are the costs or difficulties involved in guarding against the
risk?

 The fundamental factor however, is the magnitude of the risk created by the
defendant’s conduct. The magnitude of the risk comprises two elements:
how strong the possibility or likelihood of harm is, and the gravity or
seriousness of the possible harmful consequences that are risked. In
essence an interrelationship exists between the foreseeability of harm and the
likelihood of the risk materialising.
Lomagundi Sheetmetal and Engineering (Pty) Ltd v Basson 1973 (4) SA 523
(RA)
Bolton v Stone 1951 AC 850
Stratton v Spoornet 1994 (1) SA 803 (T)
Grootboom v Graaf-Reinert Municipality 2001 (3) SA 373 (E)

26
ii) The preventability of harm:

 Once it is established that a reasonable person would have foreseen the

possibility of harm, the question arises of whether he or she would have taken
measures to prevent the occurrence of the foreseeable harm. Put differently:
the recognisable risk of harm must be unreasonable. The answer depends on
the circumstances of each case. The standard of conduct required is
determined by balancing the recognisable risk against the social value, or
utility of the interests served by the defendant’s conduct. In addition, the
costs and burden of possible precautionary measures must also be balanced
against the risk.

 There are four basic considerations in each case which influence the reaction
of the reasonable person in a situation posing a foreseeable risk of harm to
others:
i) The degree or extent of the risk created by the actor’s conduct;
ii) the gravity of the possible consequences if the risk of harm materialises;
iii) the utility of the defendant’s conduct; and
iv) the burden of eliminating the risk of harm.

Ngubane v SA Transport Services 1991 (1) SA 756 A

Cape Metropolitan Council v Graham 2001 (1) SA 1197 (SCA)
S v Mkwanazi 1967 (2) SA 593 (N)
Maylett v Du Toit 1989 (1) SA 90 (T) 94

A. NEGLIGENCE: IMPUBES (CHILDREN 7-12/14 YEARS)

Jones v Santam Bpk 1965 (2) SA 542 (A) 551,552

Roxa v Mtshayi 1975 (3) SA 761 (A) 765 – 766.
Weber v Santam Versekeringsmaatskappy Bpk 1983 (1) SA 381 (A)
Ndlovu v AA Mutual Insurance Association Ltd 1991 (3) SA 655 (E) 663
Haffejee v SAR & H 1981 (3) SA 1062 (W) 1066
Stratton v Spoornet (supra)
Grootboom v Graaf-Reinert Municipality (supra)
S v T 1986 (2) SA 2 (O)
27
B. NEGLIGENCE: EXPERTS (PROFESSIONALS)

The general test for negligence is adapted to accommodate situations where skill,
being a special competence, which is the result of special training, is required. A
person who engages in a profession, trade, calling or any other activity which
demands special knowledge and skill must not only exercise reasonable care, but
measure up to the standard of competence of a reasonable person professing such
knowledge and skill. The reasonable person is replaced by the reasonable expert,
the court having regard to the general level of skill and diligence possessed and
exercised at the time by members of the branch of the profession to which the expert
belongs. It follows that a higher standard of care is expected of a reasonable expert
than that of the reasonable person, because more is reasonably to be expected of a
skilled professional than of an untrained lay person. The test has two components:
the possession of necessary knowledge; and the exercise of necessary care, skill
and diligence.

Van Wyk v Lewis 1924 AD 438

Buls v Tsatsarolakis 1976 (2) SA 891 (T)
Blyth v Van den Heever 1980 (1) SA 191 (A)
Durr v ABSA Bank Ltd 1997 (3) SA 448 SCA
Mukheiber v Raath 1999 (3) SA 1065 (SCA)

28
C. NEGLIGENCE: NOVICES (BEGINNERS)

aa) The defence of contributory fault

i) Contributory Negligence

The Apportionment of Damages Act 34 of 1956

ii) The Criteria for the “apportionment of damages”

LEARNING UNIT 5: CAUSATION

Unit learning At the end of this learning unit you should be able to –
objectives:  understand the causation as another important element
for liability in delict;
 identify the two forms/components of causation;
 apply all the above to a set of facts.

RESOURCES:
 Textbook Reading: Loubser, 2nd edition pp 69-101;
Neethling, pp 175-210

aa) Factual causation

 Test for Factual Causation: Condition sine qua non test

Min of Police v Skhosana 1977 (1) SA 31 (A)

International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A)

29
bb) Legal causation

 Traditional tests for legal causation

 The flexible approach

Fourway Haulage SA (Pty) v SA National Roads Agency Ltd 2009 (2) 150 (SCA)
S v Mokgethi 1990 (1) SA 32 (A)
S v Daniels 1983 SA 275 (A) 332
International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A
In re Polemis and Furness, Withy & Co. Ltd 1921 3 KB 560
Overseas Tankship (UK) Ltd v Motors Doc & Engineering Co. Ltd [1961] AER
404 PC

Delictual Remedies - SELF STUDY

i) Interdict

Reading: Loubser, 2nd ed pp 303-304; Neethling, pp 175-210

Case law
Administrator, Natal v Edouard 1990 (3) SA 581 (A)
Potgieter v Sustein (Edms) Bpk 1990 (2) SA 15 (T)
Lillicrap, Wassenaar & Partners v Pilkington Bros (SA) (Pty) Ltd 1985 (1) SA 475 (A)
Johannesburg Country Club v Scott and Another 2004 (5) SA 511 (SCA)

30
LEARNING UNIT 6: SPECIFIC FORMS OF DELICT

Unit learning At the end of this learning unit you should be able to –
objectives:  understand dependants’ liability and loss of support delict;
 understand emotional shock; unlawful competition and
manufacturer’s liability
 identify their role in the law of delict;
 apply all the above to a set of facts.

RESOURCES:
 Textbook Reading: Loubser, 2nd edition pp 238-258 & 305-310;
Neethling, pp 275-320

aa) Loss of support or Action of dependants

Legal Insurance Co Ltd v Botes 1963 (1) SA 608 (A)

Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A)
Amod v Multilateral Motor Vehicle Accidents Fund 1999 (3) SA 421 (SCA)
Du Plessis v RAF 2004 (1) SA 359 (SCA) 430

bb) Emotional shock

Bester v Commercial Union Versekeringsmaatskappy van SA Bpk 1973 (1)

SA 769 (A)
Barnard v Santam Bpk 1999 (1) SA 202 (SCA)
RAF v Sauls 2002 (2) SA 55 (A) 66
Majiet v Santam Ltd [1997] All SA 555 (C) 557

cc) Unlawful competition

Lorimer Productions Inc. v Sterling Clothing Manufacturers (Pty) Ltd 1981 (3)
SA 1129 (T) 1141
Royal Beech-nut (Pty) Ltd v United Tobacco Co Ltd 1992 (4) SA 118 (A) 123
Atlas Organic Fertilizers (Pty) Ltd v Pikkewyn Ghwano (Pty) Ltd 1981 (2) SA
173 (T) 186
Schultz v Butt 1986 3 SA 667 (A)
FW Woolworth and Co (Zim) (Pvt) Ltd v Sunray Stores (Pvt) Ltd 1999 (2) SA
887 (ZH)

31
dd) Manufacturer’s liability

Wagener & Cuttings v Pharmacare Ltd 2003 (4) SA 285 (SCA)

Ciba-Geigy (Pty) Ltd v Lushof Farms (Pty) Ltd 2002 (2) SA 447 (SCA)
Bayer SA (Pty) Ltd v Viljoen 1990 (2) SA647 (A)

LEARNING UNIT 7: PRESCRIPTION

Unit learning At the end of this learning unit, you should be able to –
objectives:  understand the law on prescription and the circumstances
under which the plaintiff’s claim will expire and
unenforceable in law;
 understand the factors impacting on the calculation of
prescription period;
 apply all the above to a set of facts.

RESOURCES:
 Textbook Reading: Loubser, 2nd edition pp 238-258 & 305-310.
Neethling, pp 275-320

Reading: Loubser, 2nd ed pages 206-218

The Prescription Act 68 of 1969

Loni v Member of the Executive Council, Department of Health, Eastern Cape,
Bhisho 2018 (3) SA 335 (CC); 2018 (6) BCLR 659 (CC)

32
 1.4. PART B: ACTIO INIURIARUM

LEARNING UNIT 8: INTRODUCTION

Unit learning At the end of this learning unit, you should be able to –
objectives:  understand the law on defamation of character (injury to
defamation);
 understand locus standi in defamation;
 understand the essential elements for liability for
defamation of character;
 understand the impact of the Constitution and the Bill of
Rights on the law of defamation;
 apply all the above to a set of facts.

RESOURCES:
 Textbook Reading: Loubser, 2nd edition pp 238-258 & 305-310;
Neethling, pp 275-320

Khumalo v Holomisa 2002 (5) SA 401 (CC)

a) The law of defamation

i) Introduction

 The Definition of defamation

 The right to reputation

Who can sue for defamation?

 The constitutional right to freedom of expression / communication

 Section 16(1)(a): Right to freedom of expression

 The Scope of the Right to freedom of expression (which includes freedom of
the press)
 The Scope of the Right to freedom of expression re: The press
 Is the institutional independence of the press guaranteed by s16?

33
 Constitutional limitations to freedom of expression/ Communication

 The general limitation clause

 The meaning of the term “by law of general application” (Section 36 (1)) –
the limitation clause.

Cf Section 205 of Criminal Procedure Act 51 of 1977

 Internal (constitutional) limitations

 S 16(2)(a) – propaganda for war

 S 16(2)(b) – incitement of imminent violence
 S 16 (2)(c ) – hate speech

Cases
National Media Ltd v Bogoshi 1998 (4) SA 1196 (SCA)
The Citizen 1978 (Pty) ltd v McBride (CCT 23/10 [2011] ZACC 11 (CC)
Tshabalala-Msimang & Medi-Clinic Ltd v Makhanya 2008 3 BCLR 338 (W)
Mthembi-Mahanyele v Mail & Guardian 2004 (6) SA 329 (SCA)
The Citizen 1978 (Pty) ltd v McBride 2010 (4) SA 148 (SCA)
Midi Television (Pty) Ltd v Director of Public Prosecutions (Western Cape)
(100/06) [2007] 3 All SA 318 (SCA)
eTV (Pty) Ltd and Others v Judicial Service Commission and Others 2010 (1)
SA 537 (GSJ)

ii) Elements for defamation liability

 Publication
 Defamatory Matter
 Reference to Plaintiff

The Presumptions
Wrongfulness
Animus Iniuriandi
National Media Ltd v Bogoshi 1998 (4) SA 1196 (SCA)

34
 aa)Publication

Moolman v Slovo 1964 (1) SA 760 (W)

Vermaak v Van der Merwe 1981 (3) SA 78 (N)
Wierzycka and Another v Manyi (30437_17) [2017] ZAGPJHC 323 _tweets
Hechter v Benade [2016] ZAGPPHC 1018 (5 December 2016) facebook defamation
M v B 2015 (1) SA 270 (KZP) - facebook posting

bb)Defamatory matter

Proof of defamatory matter:

 A two-stage inquiry can be used:

o What is the meaning of the words or conduct?

o Is the meaning defamatory?

i) The interpretation stage (ascertaining the meaning of words or conduct)

o Words or conduct may have a primary or ordinary (per se) meaning or a

secondary meaning or innuendo.

a). Ordinary meaning

o If words are alleged to be a prima facie defamatory the court must

determine the ordinary meaning of the words.

o The ordinary meaning of the words is not necessarily the dictionary

meaning.

Cf: Ciliza v Minister of Police 1976 (4) SA 243 (N) 247

35
o The ordinary meaning is the meaning an ordinary or reasonable reader or
listener would give to the words.
Democratic Alliance v African National Congress and Another 2015 (2) SA
232 (CC); 2015 (3) BCLR 298 (CC)

o The court must consider not only what the words expressly say but also
what they imply.

Argus Printing & Publishing Company v Esselen’s Estate 1994 (2) SA 1

(A) 20

Sindani v Van der Merwe 2000 (3) SA 494 (W) 497

o Ordinary readers are not perfect – they may skim articles or jump to
conclusions.

Demmers v Wyllie 1980 (1) SA 835 (A) 848

o Reasonable listeners (e.g., on the radio or tv) should be treated differently

from reasonable readers because the printed or written words can be re-
read again and again.

SAUK v O’Malley 1977 (3) SA 394 (A) 408

o The ordinary meaning of words must be decided by the court –unless

there is an innuendo – without evidence from listeners or readers.

Sindani v van der Merwe 2000 (3) SA 494 (W) 497

o However, evidence of facts relevant to the trial is admissible (e.g., how a

reasonable reader would probably understand the words).

Mangope v Asmal 1997 (4) SA 286 (T) 286

Kgothule v Dlamini and others (380_2012) [2014] ZAFSHC 40 (27
March 2014)

36
 o The fact that South Africa has 11 official languages means that judges will
sometimes need evidence to explain what defamatory words in different
languages mean.

o Where words or conduct are capable of more than one meaning the test
is: On a balance of probabilities would the ordinary reader give the words
a defamatory meaning?

o The plaintiff will succeed even if there could be a non-defamatory

meaning.

Demmers v Wylie supra 842-3

b). Secondary meaning of words (innuendo)

 A secondary meaning or innuendo is an unusual meaning which can only be

given to the words by a hearer or reader who has knowledge or special
circumstances.

National Union of Distributive Workers v Cleghorn & Harris 1946 AD 984,

997

 Where words are prima facie innocent the plaintiff must allege and prove the
defamatory innuendo.

Cf. Jackson v NICRO 1976 (3) SA 1 (A) 4-5

 The plaintiff must expressly set out the innuendo attached to the words and
must prove that it was understood in that way.

Sutter v Brown 1926 AD 155, 164

 Where a plaintiff alleges a particular innuendo he or she is bound by it and
cannot lead evidence to establish a different one.

National Union of Distributive Workers v Cleghorn and Harris

supra 987

 Where words are prima facie defamatory but the plaintiff wishes to prove an
additional sting to them the latter must be alleged and proved (quasi-
innuendo).

37
 Sutter v Brown supra 162-3
 If the plaintiff alleges an innuendo to point to the sting of words that are prima
facie defamatory, he or she cannot fall back on their primary meaning if the
innuendo is not proved – unless it is pleaded in the alternative.

ii) Is the meaning of the words or conduct (meaning) defamatory?

 An expression lowering a person in the estimation of others is usually one that

either:

o Reflects upon the plaintiff’s moral character; or

o Subjects the plaintiff to hatred, contempt or ridicule.

 ) Reflections on moral character

 Immorality

Tothill v Foster 1925 TPD 857 (saying a person suffers from venereal
disease).

 Morality changes with the times

Sokhulu v New Africa Publications Ltd 2001 (4) SA 1357 (W) 1359 (Not
defamatory or an impairment of dignity to say that a woman had a child out of
wedlock and lived with the child’s father for two years without marrying him)

 Imputing criminal conduct

SAUK v O’Malley 1977 (3) SA 394 (A) (Attending an illegal meeting)

 Imputing dishonest conduct

Penn v Fiddel 1954 (4) SA 498 (C) (saying: you’re the biggest liar I know!)

38
  Police Informer?

Prinsloo v SAAN 1959 (2) SA 693 (W) (Student accused of being a

blond spy)

 ) Arousing hatred, contempt or ridicule

 Hatred

Pont v Geyser 1968 (2) SA 545 (A) 558 (calling a person heretic or
traitor)
NB: Hate speech is not protected in the Constitution.

 Contempt

Gayre v SAAN 1963 (3) SA 376 (T) (calling a scientist a fascist

geneticist)

 Ridicule

Rutland v Jordan 1953 (3) SA 806 (C) 814 (calling a person insane)

Muller v SAAN 1972 (2) SA 589 (C) 591 (minister using un-ministerial
language)
Mangope v Asmal 1997 (4) SA 277 (T) (calling a politician a baboon)

39
 ) Words or conduct damaging trade, business or official position:

 Defamatory words that damage a person’s trade, business or official position

are also actionable.

Examples:

i) Derogatory remarks regarding a person’s physical /mental disposition.

Pitout v Rosenstein 1930 OPD 112

ii) Allegations placing a person’s moral character or lifestyle in a bad light.

Sutter V Brown 1926 AD 155

Hassen v Post Newspapers (Pty) Ltd 1965 (3) SA 562 (W)

iii) Contemptuous remarks regarding a person’s race / racial views

Botha v Mthiyane 2002 (1) SA 289 (W)

Sindani v VD Merwe 2000 (3) SA 494 (W)
Argus Printing and Publishing Co Ltd v Esselen’s Estate 1994 (2) SA (1)(A)

iv) Words/behaviour reflecting negatively on a person’s character and public

life as a politician.

Mthembi-Mahanyele v Mail & Guardian 2004 (6) SA 329 (SCA)

v) statements casting suspicion on a person’s vocational or professional

capabilities or competence

Johnson v Beckett 1992 (1) SA 762 (A)

Lieberthal v Primedia Broadcasting (Pty) Ltd 2003 (5) SA 39 (W)

40
 o Business person

Borkum v Cline 1959 (2) SA 670 (N) 674

o Attorney-general or director of public prosecutions

SAAN Ltd & another v Yutar 1969 (2) SA 442 (A) 458

o Clergyman

Buthelezi v Poorter 1975 (4) SA 608 (W) 614

o Dishonouring a cheque

 The test for determining whether words or conduct are defamatory is whether the
imputation lowers the plaintiff in the estimation of right–thinking persons,
generally.

Botha v Marais 1974 (1) SA 44 (A) 49

Kgothule v Dlamini and others (380_2012) [2014] ZAFSHC 40 (27
March 2014)
Kgothule v Majonga and another 2015 (6) SA 389 (FB) (10 September
2015) (10 September 2015)
 However, the test has been criticized, in the past, as inappropriate for South
Africa’s multi- cultural society.

Burchell (1974) 91 SALJ 178

 It was suggested that a better test is to consider the view of a substantial and
respectable sections of South African society provided their views are not
contrary to good morals (applied in some cases).

(Muslim girls criticized for wearing mini skirts)

Omarjee v Post Newspapers LTD 1962 (2) PH J 33 (D)

41
(Right thinking members of society would not regard calling a Muslim person an
Ahmadi sympathiser as defamatory, but Muslims would).
Mahomed v Jassiem 1996 (1) SA 693 (A)

NB. It has been held not to be defamatory to say that a person:

 Is a member of a particular political party religious group or nationality?

SAAN v Schoeman 1962 (2) SA 613 (A) 617

 Lives in a slum or has not been properly educated;

Jonker v Davis 1953 (2) SA 726 (GW) 731

 Mere meaningless abuse is not defamatory, but may be an iniuria

Wood NO v Branson 1952 (3) SA 369 (T) 371

(Court messenger calling a ‘woman cheap South Hills cows’)

 Where the defamatory statement forms part of an article or book the whole
article or book must be examined.

Chesteron v Gill 1970 (2) SA 242 (T) 246

 Recently, to say that a person committed adultery

J v J and another (4918/2012) [2016] ZAKZDHC 33 (22 July 2016)

 A newspaper poster is read separately from the newspaper it advertises.

SAAN v Yutar 1969 (2) SA 442 (A) 453 (poster reading “how Dr. Yutar misled
the court”)

42
 Where the statement is part of a series of articles each individual article must be
considered.

Geyser v Pont 1968 (4) SA 67 (W) 69

 Simply because a person has been shunned or avoided does not mean that
the statement is defamatory.

SAAN v Schoeman supra 616-7

 Evidence in mitigation may be led to show that plaintiff is of general bad

character or reputation.

Sutter v Brown supra 172

cc) Reference to the plaintiff

 The plaintiff must prove that the defamatory words or conduct referred to him
or her.

SAAN v Estate Pelser 1975 (4) SA 797 (A) 810

Tsedu and others v Lekota and Another 2009 (4) SA 372 (SCA); [2009] 3 All
SA 46 (SCA)
 The test is whether the ordinary reasonable reader would have understood
the words complained of as referring to the plaintiff.

Williams v Van der Merwe 1994 (2) SA 60 (E) 63

 Where the plaintiff is not referred to by name he or she must allege and prove
the facts which show reference to him or her (like innuendo).

 There is no group or class defamation in South African Law – individual

plaintiffs must emerge and show reference to themselves e.g.

SA Associated Newspapers Ltd v Estate Pelser 1975 (4) SA 797 (A) 810
o Board of Directors
43
 Bane v Colvin 1959 (1) SA 863 (C)

o A class of business people

Neumann CC v Beauty without Cruelty International 1986 (4) SA 675

(C) (Seller of furs)

 Dead people cannot be defamed.

Spendiff v East London Daily Despatch 1929 EDL 113, 131

OTHER (PRESUMED) ELEMENTS FOR LIABILITY

dd) Fault

i. Intention or animus iniuriandi

 When a defamatory statement is made it is presumed that the person

publishing it had animus injuriandi.

Jackson v NICRO 1976 (3) SA (A) 12

 Animus injuriandi generally means the subjective intention to injure the

reputation of the plaintiff with knowledge of the unlawfulness of the act.

SAUK v O’Malley 1977 (3) SA 394 (A) 407

 the subjective intention may take the same form as in the criminal law, viz:

 Dolus directus: The defendant’s aim and objective is to defame the

plaintiff.

44
  Dolus indirectus: The defendant’s aim and objective is not to defame
the plaintiff, but he or she foresees the possibility of defaming the
plaintiff as substantially certain.

 Dolus eventualis: The defendant subjectively foresees the possibility of

defaming the plaintiff but still goes ahead and publishes the defamatory
matter.

 Knowledge of the unlawfulness of the act: The defendant knew that his or her
act was wrongful.

Maisel v Van Nairen 1960 (4) SA 836 (C)

(Defamatory letter sent to the chairperson of the Rent Board by mistake).

 Once a defamatory statement is published animus injuriandi is presumed.

Neethling v Preez: Neethling v The Weekly Mail 1994 (1) SA 708 (A) 767-
9
(Disclosures concerning persons to kill activists)

 However, animus injuriandi should be alleged in the pleadings.

Moaki v Reckitt & Colman (Africa) Ltd 1968 (3) SA 98 (A) 105

 Once animus injuriandi is alleged the burden of rebutting the presumption is

placed on the defendant who can lead evidence to show absence of:

 Subjective intention
 Consciousness of wrongfulness; or
 Both

SAUK v O’Malley 1977 (3) SA 394 (A) 403, 409

 Burchell points out that the onus on the defendant is only to adduce evidence
rather than to prove on a balance of probabilities that there is a defence.

Burchell 182

45
  Malice must be distinguished from animus injuriandi.

SAUK v O’Malley 1977 (3) SA 394 (A) 405

 Motive or malice is the reason why somebody does something, i.e. motive is
the actuating impulse preceding intentions.

Gluckman v Schneider 1936 AD 151, 159

ii. Unreasonableness or negligence (only media defendants)

 Until 1998 the traditional approach to liability by the mass media was that
strict liability was imposed on them.

Pakendorf v De Flamingh 1982 (3) SA 146 (A)

 Previous cases were decided before there was a Bill of Rights and at a time
when the common law was being undermined in terms of freedom of speech.

 In 1998 the Supreme Court of Appeal rejected the concept of strict liability for
the media and introduced the criterion of reasonableness as the test for
liability.

National Media Ltd v Bogoshi 1998 (4) SA 1196 (SCA)

 The Bogoshi case held the following:

 Unlawfulness should be measured by the criterion of reasonableness;

 The test for reasonableness includes (time-manner; status or public
concern; political importance; tone; reliability of source; steps to verify;
opportunity for plaintiff to verify or comment;
 The reasonableness test is wider than negligence

 Burchell suggests that the judgment should be interpreted as follows:

 It reaffirms the role of unlawfulness as an element of defamation;

 It emphasizes fault in the form of negligence for the media; and
 Reasonable lack of consciousness of wrongfulness should also be a defence.

46
 It has now been held that the principle in the Bogoshi case should be extended to
all forms of defamation and lack of consciousness of wrongfulness due to
negligence should not be a defence.

Marasi v Groenewald 2001 (1) SA 634 (T) 636

ee) Unlawfulness or wrongfulness

 Once a defamatory statement is made it is presumed to be unlawful.

Neethling v du Preez, Neethling v The Weekly Mail 1994 (1) SA 708 (A)
767-9

 Unlawfulness in defamation is the infringement of a person’s right to

reputation which cannot be legally justified.

 The criteria for unlawfulness have been described as:

o Reasonableness;

National Media Ltd v Bogoshi 1998 (4) SA 1196 (SCA)

OR

o Legal convictions of the community, including constitutional norms and

values

Van Eeden v Minister of Safety and Security 2003 (1) SA 389 (SCA)
396-397

o Public policy

SAUK v O’Malley 1977 (3) SA 394 (A) 402-3

47
  The criteria for unlawfulness are flexible and mean that the law of delict (and
defamation) can be changed to meet the changing needs of society.

 Thus, freedom of expression in terms of the Constitution operates horizontally

and can be accommodated under the concept of unlawfulness.

National Media v Bogoshi 1998 (4) SA 1195 (SCA)

See also Khumalo v Holomisa 2002 (5) SA 401 (CC)

NB: Hate speech is excluded in terms of s 16(2) of the Constitution.

Wierzycka and another v Manyi (30437-17) [2017] ZAGPJHC 323 (20
November 2017) defamation

 Once unlawfulness is presumed the onus shifts to the defendant to prove on a

balance of probabilities that he or she has a defence that excludes such
unlawfulness.

National Media v Bogoshi supra.

ff) Causation in an action for defamation

 Causation is not often raised in defamation actions because once the action is
proved damage to reputation is presumed.

It could be argued in mitigation of damages, however, that there was no loss

caused to reputation because:

o The plaintiff had a very low reputation anyway.

Cf Viviers v Kilian 1927 AD 449, 456, 459

o The plaintiff had a very high reputation so nobody believed the statement.

Cf Dikoko v Mokhatla 2006 (6) SA 235 (CC); par 78

 A poor reputation may also be a mitigating factor.

48
LEARNING UNIT 9 DEFENCES/ GROUNDS OF JUSTIFICATION

Unit learning At the end of this learning unit, you should be able to –
objectives:  understand the defences (for both intention and
wrongfulness) that exclude liability for defamation of
character and other actions based on Actio Iniuriarum,
namely impairment of dignity and invasion of privacy;
 understand the essential elements for these defences to
succeed;
 apply all the above to a set of facts.

a) DEFENCES REBUTTING INTENTION (ANIMUS INIURIANDI)

aa) Mistake

bb) Jest

cc)Negligence (non-media defendants)

b) DEFENCES REBUTTING UNLAWFULNESS

aa) Truth for the public benefit

 It is a good defence for a defendant to show that the defamatory statement

was true and for the public benefit.

NB: The onus of proof remains on the defendant – the plaintiff is not
required to plead the falsity of the defamatory statements regardless of the
circumstances.

Khumalo v Holomisa 2002 (5) SA 401 (CC)

49
i). Truth

The statement need not be true in all respects – provided it is substantially true (i.e.
material allegations are true).
Johnson v Rand Daily Mails 1928 AD 190, 204

o Truth alone is not a defence, but may be used in mitigation of damages.

Geyser v Pont 1968 (4) SA 67 (W) 68

o It has been suggested that in the area of “free and fair political activity”
there must be “some protection for erroneous statement of defamatory
fact”.
Holomisa v Argus Newspaper Ltd 1996 (2) SA 588 (W) 616-7

ii). Public benefit

The publication of the truth must be for the public benefit.

o “Public benefit” means the same as “public interest” and has been
described as: “Material in which the public has an interest” – not “what the
public finds interesting”.

National Media Ltd v Bogoshi 1998 (4) SA 1995 (SCA)

o The court will look at the time manner and place of publication to
determine if it is for the public benefit.

Lyon v Steyn 1931 TPD 247, 251

(Reference to incident 30 years after end of Anglo-Boer war)

o People should be allowed to live down their past.

50
 NB: If it is proved that the defendant was actuated by spit or malice the defence
of truth for the public benefit will fail.
Coetzee v Nel 1972 (1) SA 353 (A) 374

bb) Fair comment

 For the defence of fair comment to succeed the defendant must prove:

o The statement must be a comment (opinion) not a statement of fact.

o The comment must be “fair” (relevant, honest and free from malice).
o The facts commented on must be true.
o The comment must be on a matter of public interest.

Crawford v Albu 1917 AD 102

Marais v Richard 1981 (1) SA 1157 (A)

i) Comment

A comment is an opinion not a statement of fact.

o The test for a comment is whether a reasonable person would regard

the statement as a comment or a statement of fact.

Crawford v Albu supra 127

(“All this strife has been caused by fanatics – no they are not fanatics –
they are criminals in the fullest sense of the word”).

ii) Fairness

A comment is fair if it is relevant, honest and free from malice.

Crawford v Albu supra 115

51
 o The fact that a comment is extravagant, exaggerated or prejudiced does
not make it “unfair”.

Johnson v Beckett 1992 (1) SA 762 (A) 780, 783

NB: If malice is shown the comment will no longer be fair.

Johnson v Beckett supra 780, 783

iii) The facts commented upon must be true

As in the case of truth for public benefit the facts commended upon need not be true
in every minute detail.
Buthelezi v Poorter 1974 (2) SA 831 (W) 833

o There can be no fair comment on facts not known to the defendant at the
time of publication.

Davies v Lombard 1966 (1) SA 585 (W) 588

iv) In the public interest

The term “public interest” includes matters involving the administration of justice,
public figures, public matters (govt, politics), books, films artwork etc.

 As has been mentioned the defence of fair comment can be defeated by proof
of malice.

cc) Absolute privilege

 In the interests of democracy certain statements are accorded absolute

protection against actions for defamation.

 These include statements:

52
 o Made during parliamentary proceedings;

Constitution s 58(1) (including parliament committees).

o Made during provincial parliamentary proceedings.

s 117(1), the Constitution

 Provincial legislatures may grant similar immunity in respect of municipal

councils

s161, the Constitution

o The privilege is absolute because it cannot be defeated by proof of

malice.
 In all cases the occasion is privileged.

Dikoko v Mokhatla 2006 (6) SA 235 (CC);

Swartbooi and others v Brink and another 2006 (1) SA 203 CC; 2003 (5)
BCLR 502;
Poovalingam v Rajbansi 1992 (1) SA 283 AD

NB: See also s 116 of the Constitution; s28 of Municipal Structures Act 117 of
1998.

dd) Qualified privilege

 A defendant will not be liable for a defamatory statement made on a privileged

occasion, where:

o The statement is made in discharge of a duty to a person who has a

reciprocal interest in receiving it.
o The statement was published during judicial or quasi-judicial
proceedings.

53
 o The statement was published in a report of proceedings of courts,
parliament or public bodies.
o The statement was relevant to the occasion to which it related.

Van der Berg v Coopers & Lybrandt Trust (Pty) Ltd 2001 (2) SA
242 (SCA) 252-253
Cf Dikoko v Mokhatla, supra par 48

A) Discharge of a duty:

o The occasion will give rise to a qualified privileged where the person
making the statement is discharging a moral, social or legal duty by
communicating it to a person with a legitimate interest or duty to
receive it.

De Waal v Ziervogel 1938 AD 112 (complaint to church elders about

clergyman)

O v O 1995 (4) SA 482 (W) 492 (disclosure made to priest)

o The test is whether an ordinary, reasonable person, having regard to

the relationship of the parties and surrounding circumstances would
have made the disclosure.

Borgin v de Villiers 1980 (3) SA 556 (A) 577

B). Judicial and quasi-judicial proceedings:

o Judges and magistrates are presumed to have acted lawfully within the
limits of their authority.

May v Udwin 1981 (1) SA 1 (A) 19

o Witnesses, litigants, advocates and attorneys are accorded a qualified

privilege as long as the defamatory statement is relevant to the case
and is founded on some reasonable cause.

54
 Pogrund v Yutar 1967 (2) SA 564 (A) 570
Joubert v Venter 1985 (1) SA 654 (A) 697

C). Reports of court proceedings, parliament and public bodies:

o The defence of qualified privilege applies to fair and substantially

accurate reports of judicial or parliamentary proceedings.

Benson v Robinson & Co 1967 (1) SA 420 (A) 428

D). Reports by the mass media

It has been suggested that the mass media have a duty to inform the public of
newsworthy events, characters and conduct and that the public have a
corresponding interest to be so informed.

Cf. National Media Ltd v Bogoshi 1998 (4) SA 1195 (4) (A) 1195 1200

 Relevance cannot be precisely defined but means that the statement was
related to the occasion and not irrelevant to it.

Cf. Van der Berg v Coopers & Lybrandt Trust (Pty) Ltd 2001 (2) SA 242
(SCA) 253 para 22 (allegations that advocate had manipulated attorneys to
withdraw their statement).

 The courts apply a more generous approach to relevant when a witness gives
verbal evidence than if the statement id made in a written deposition where
there is time to read and correct the document.

Cf. Van der Berg v Coopers & Lybrandt Trust (Pty) Ltd supra 254 par 24.

 The defendant must prove on a balance of probability that the defamatory

statements were (i) made on a privileged occasion and (ii) that the
communication was relevant to the matters under discussion.

Botha v Mthiyane 2002 (1) SA 289 (W) 313

55
NB: The defence of qualified privilege can be defeated by proof of malice (e.g. that
the defendant did not believe in the truth of the statement). Borgin v De Villiers
1980 (3) SA 556 (A) 578-579

ee) Reasonableness

 The defendant can show that his or her conduct was reasonable.

National Media Ltd v Bogoshi 1998 (4) SA 1195 (4) (A)

LEARNING UNIT 10 INJURIES TO DIGNITY

Unit learning At the end of this learning unit you should be able to –
objectives:  understand the law on impairment of dignity and invasion
of privacy (injuries to dignity);
 understand locus standi in in actions for injury to dignity;
 understand the essential elements for liability for
impairment of dignity and for invasion of privacy;
 understand the impact of the Constitution and the Bill of
Rights on the law on injuries to dignity;
 apply all the above to a set of facts.

aa) Impairment of dignity (insults)

56
 bb) Invasion of privacy

Recommended Readings:
David McQuoid-Mason: Invasion of Privacy: Common Law v
Constitutional Delict – Does it make a Difference? (2000) Acta Juridica
227

Cf: PA Carstens Tshabalala-Msimang and Medi-Clinic Ltd v Makhanya 2

008 3 BCLR 338 (W) (2008) De Jure 452

Other references:
Protection of Personal Information Bill [B9-2009]
Regulation of Interception of Communications and Provision of
Communication-related Information Act, No. 70 of 2002 (RICA)

i) Definition

 The right to privacy has been defined as:

 The right to be left alone.

 The right to live one’s life with the minimum of interference.
 The right to decide when and under what conditions private facts may
be made public.

National Media Ltd v Jooste 1996 (3) SA 262 (A) 271

 It includes freedom from:

 Intrusion and interferences; and

 Unauthorised disclosures of information about one’s private life.

Case v Minister of Safety and Security 1996 (3) SA 617 (CC) par 91
Minister of Justice and Constitutional Development and Others v Prince
(Clarke and Others Intervening); National Director of Public Prosecutions
and Others v Rubin; National Director of Public Prosecutions and Others v

57
 Acton [2018] ZACC 30; 2018 (10) BCLR 1220 (CC); 2018 (6) SA 393 (CC)
(18 September 2018)
 The right to privacy is protected in the Constitution (Section 14):
Everyone had the right to privacy, which includes the right not to have

 Their person or home searched;

 Their property searched;
 Their possessions seized; or
 The privacy of their communications interfered with.

 A common law right to privacy under the actio injuriarum has existed for many
years.

McQuoid-Mason Law of Privacy (1978) 86.

1.4.4.1.1 Essential elements for invasion of privacy

 In order to prove a claim for invasion of privacy under the actio injuriarum the
plaintiff would have to show that there was:

 An (1) unlawful and (2) intentional (3) infringement of the plaintiff’s right to
privacy.

i) Infringement of privacy

 Infringement of privacy is regarded as an aspect of impairment of dignitas.

 It can take many different forms including the following:

 Intrusions and publication of private facts

58
a) Intrusions

 Intrusions into a person’s private life or affairs include:

 A raid on a brothel

De Fourd v Cape Town Council (1898) 15 SC 399

 Private detective bugging a spouse’s room

S v A 1971 (2) SA 293 (T)

 Unlawful tape recordings

Financial Mail Pty (Ltd) v Sage Holdings (Pty) Ltd 1993 (2) SA 451 (A)

b) Publication of private facts

 Publication of private facts include:

 Unauthorized use of photographs

Mhlongo v Bailey 1958 (1) SA 370 (W)

 Photographing a person suspected of a crime

Le Grange v Schoeman 1980 (1) SA 885 (E)
 Publishing a love story in a magazine without consent.

National Media Ltd v Jooste 1996 (3) SA 262 (A)

 A doctor telling colleagues that a patient has AIDS

Jansen van Vuuren v Kruger 1993 (4) SA 842 (A)

59
  Publication of HIV status
NM and Others v Smith and Others (Freedom of Expression
Institute as Amicus Curiae) 2007 (5) SA 250 (CC)

Publication of a (health) Minister’s medical record

Tshabalala-Msimang and Medi-Clinic Ltd v Makhanya 2008 3 BCLR
338 (W)

Roux and Others v Dey 2011 (3) SA 274 (CC); 2011 (6) BCLR 577
(CC); BCLR 446 (CC)
Dladla v City of Johannesburg [2017] ZACC 42; 2018 (2) BCLR 119
(CC); 2018 (2) SA 327 (CC) (1 December 2017)

ii) Animus iniuriandi) (Intention)

 The defendant must have acted intentionally or with animus iniuriandi except
in the case of the mass media when negligence may be sufficient.

 The meaning of animus injuriandi is the same as for defamation and other
iniuriae.

 Once the other elements of an invasion of privacy have been proved animus
injuriandi will be presumed.

NM and Others v Smith and Others (Freedom of Expression Institute as

Amicus Curiae) 2007 (5) SA 250 (CC)
Kumalo v Cycle Lab (Pty) Ltd (31871-2008) [2011] ZAGPJHC 56

iii) Unlawfulness

 The wrongfulness of the infringement of privacy is judged by the boni-mores

of modern society.

Financial Mail (Pty) Ltd v Sage Holdings Ltd 1993 (2) SA 451 (A) 462

60
  The test is objective and extends to ordinary or reasonable sensibilities not to
hypersensitiveness.

National Media Ltd v Jooste 1996 (2) SA 262 (A) 271

 The courts will not protect information that will not cause mental distress and
injury to anyone possessed of ordinary feelings and intelligence.

National Media Ltd v Jooste supra 270

Chaskalson 18-3

 The spirit, purport and objects of the Constitution will play a major role in
shaping the new boni mores of society.

Gardener v Whitaker 1995 (2) SA 672 (E) 684

 The constitutional right to press freedom will only outweigh privacy and dignity
where the concerns are extremely serious and important (e.g. exposures of
criminal conduct or corruption).

Prinsloo v RCP Media Ltd t/a Rapport 2003 (4) SA 453 (T) 469
NM and Others v Smith and Others (Freedom of Expression Institute as
Amicus Curiae) 2007 (5) SA 250 (CC)

Other actions previously under privacy

cc) Appropriation
 Appropriation means that a person’s image or likeness is used without their
consent to make money, e.g.:

An advertisement using a photograph

Keefe v Argus Printing & Publishing Co 1954 (3) SA 244 (E) (SABC
broadcaster in rifle range)
Grütter v Lombard and another 2007 (4) SA 89 (SCA)
Kumalo v Cycle Lab (Pty) Ltd [2011] ZAGPJHC 56 (unreported)

61
dd) Placing a person in a false light

 Publishing non-defamatory but false statements about a person, e.g.:

 False story that nurses need boyfriends

Kidson v SAAN 1957 (3) SA 461 (W)

 Portraying a teacher as gay?

Roux and others v Dey 2011 (3) SA 274 (CC); 2011 (6) BCLR 577
(CC); BCLR 446 (CC)

OTHER DEFENCES FOR PRIVACY

i) General defences

 Generally, the same defences applicable in defamation apply here.

Jansen van Vuuren v Kruger 1993 (4) SA 842 (A)

 These include those rebutting animus injuriandi or unlawfulness.

Reasonableness is the criteria used for publications by the mass media.

National Media Ltd v Bogoshi 1998 (4) SA 1195 (SCA)

See defamation, supra

 Exceptions could also be taken on the basis of, e.g.:

o No reference to the plaintiff;

o No reasonable expectation of privacy.

62
ADDITIONAL DEFENCES UNDER UNLAWFULNESS - (SELF STUDY)

aa) Necessity

e.g., Shopkeeper with closed circuit TV camera to monitor shoppers.

bb) Statutory justification

e.g. Children's Act 38 of 2005 (duty to report child abuse under the Act)

Mental Health Act 18 of 1973 s 13 (duty to report persons who are a danger to
themselves or others)

National Health Act 61 of 2003 (duty to report notifiable diseases)

cc) Consent

dd) Acting in terms of valid Authority

______

63
Learning Unit 11: Strict liability

Unit learning At the end of this learning unit you should be able to –
objectives:  understand the actions falling under the law of strict
liability, namely vicarious liability and action for liability
based on animals;
 understand actio de pauperie;
 understand the essential elements for liability for actions
based on strict liability
 apply all the above to a set of facts.

 Introduction to liability without fault

aa) Vicarious liability

F v Minister of Safety and Security 2012 (1) SA 536 (CC); 2012 (3) BCLR 244
(CC); (2012) 33 ILJ 93 (CC); 2013 (2) SACR 20 (CC)
K v Minister of Safety and Security 2005 (6) SA 419 (CC); OR Kern v Minister of
Safety and Security 2005 (9) BCLR 835 (CC)
Messina Associated Carriers v Kleinhaus 2001 (3) SA 868 (SCA)
Dowling v The Diocesan College 1999 (3) SA 847 (C)
Minister of Law and Order v Ngobo 1992 (4) SA 822 (A)
Minister of Police v Rabie 1986 (1) SA 117 (A)
Minister of Safety and Security v Jordaan t/a Jordaan’s Transport 2000 (4) 21
(SCA)

Cf: Anton Fagan “The Confusions of K” SALJ, 126 (1) p156

Damages caused by animals

bb) Actio de pauperie

Fourie v Naranjo and another 2008 (1) 192 (C)

O’Callaghan v Chaplin 1927 AD 310
Loriza Brahmanv Dippenaar 2002 (2) SA 477 (SCA)
Lever v Purdy 1993 (3) SA 17 (A)
Visagie v Transsun (Pty) Ltd 1996 (4) All SA 703 (Tk)
64
 Marteen v Pope 1992 (4) SA 883 (N)
Lawrence v Kondotel Inns (Pty) Ltd 1989 (1) SA 44 (D)
Harms v Hoffman 1928 TPD 572
Pieters v Botha 1989 (3) SA 607 (T)

cc) Actio de pastu

Potgieter v Smit 1985 (2) SA 690 (D)

Van Zyl v Kotze 1961 (4) SA 214 (T)
Van Zyl v Van Beljoen 1987 (2) SA 372 (O)
Vermaak v Du Plessis 1974 (4) SA 353 (O)

dd) Actio de feris

1.6 Arrangements for self-study

Students will be notified in due course about self-study arrangements and

notional hours be allocated for this self-study

1.7 Arrangements for e-learning

Some information will be posted on Moodle

65
2 ASSESSMENT COMPONENT

2.1 Assessment Plan

2 ASSESSMENT COMPONENT

2.1 Assessment Plan

Test Date/period Format Learning Weighting

Content
1 14 March Written PTQ Lex Aquilia 25%
2 12 April Written PTQ Actio 25%
Iniuriarum
Main Test 50%
Aegrotat As above

2.2 Rules and requirements during assessment activities

2.2.1 General

Please note, only students who are registered for this module will be allowed to write
the assessments. If a student is not registered for Law of Delict (2LPD301), any
scripts marked will not be entered as only registered students’ marks may be
captured on the system. Students who wish to appeal against a percentage/mark
awarded for the assignment or the test will have to do so within three days after the
marked assessment scripts have been returned to all students in class.

2.2.2 DP Marks

DP Marks are calculated as per the weightings provided on the assessment table
above in paragraph 2.1. Please familiarize yourself with your assessment dates and

66
weightings before the start of the semester.

2.2.3 Verifying marks

Please note the below important information about verifying your marks throughout
the semester:

a) Once assessment marks have been posted on Moodle, it is YOUR

responsibility to check that your marks were recorded correctly. If a mistake
was made, please bring it to my attention immediately in a respectful manner
so that it may be rectified. Email me on [email protected] with the
supporting documentation. If a mistake has been made it will be corrected in a
timeous fashion.

b) Once provisional DP marks have been released, it is your responsibility to

check that all of your assessment marks have been capture correctly. Please
advise me immediately should an error have been made. Email me on
[email protected] with the supporting documentation. If a mistake
has been made it will be corrected in a timeous fashion. It is YOUR
responsibility to check you DP mark has been calculated correctly BEFORE
management has published the official DP marks.

c) Please note that NO DP marks will be changed after the ITS system has been
closed, i.e. seven days after Assessment Management has released the
official DP marks. Therefore, it is in your best interests to bring any potential
errors to the attention of your lecturer before this time.

2.2.4 Aegrotat tests

If you are not able to write a test due to ill health, or compassionate grounds such as
death of a loved one, you must apply within seven days of the scheduled test for
permission to write the aegrotat test.

The following is important to note in respect of supporting evidence:

a) You are required to submit the aegrotat assessment form located in Annexure
B accompanied by your supporting documentation on email to
[email protected]

67
 b) ONLY medical certificates that clearly indicate you were incapacitated and
unable to write the test will be accepted. Please refer to the University’s
Administration of Exams Policy for more information on this aspect.

c) NO certificate that indicates that you attended a clinic or hospital will be

accepted.

d) Death certificates indicating a death of a family member will be accepted.

e) It is within the discretion of your lecturer to grant an aegrotat test based on the
application and supporting documentation received within the rules of the
University’s Administration of Exams Policy.

2.2.5 Qualifying for exams

In order to qualify to write the examinations you need to achieve a DP mark of at
least 40% to sit the examination. If your DP is less than 40% you do not qualify to
write the examination.

2.2.6 Pass mark

In order to pass this module, you require a total final mark of 50%. The final mark is
calculated as 50% of your DP mark, as calculated according to the weights provided
in paragraph 2.1. Thereafter, 50% of your examination mark makes up the full 100%.

For example, if you achieve 45% for your DP and 55% for your examination mark,
you will achieve a final mark of 50% and pass the module.

2.3 Assignment

All assignments must be typed out according to the below guidelines:

 Arial Font;
 Use 11 Point font;
 1.5-line spacing;
 Insert Page numbers;
 Word Count to occur on assignment cover

68
  Use the university approved assignment front page as provided in
Annexure A, this should reflect your personal information. Ensure that
your student number is correct. Also include the Mark allocation sheet
with you cover page;
 Make provision for a table of contents, if applicable.
 A reference list must be provided at the end of an assignment. You are to
list all sources that you have used in order to complete the assignment.
Please provide full and accurate details of the references. Please note
that if you have noted a source on the reference list, you must have
referenced the source within the assignment content; and
 Please ensure that you use the African Human Rights Law Style
guidelines that you have been using in Legal Research.

2.4 Self-assessment activities

TBA

2.4.1 Revision questions

Revision questions will be given to students during the course of the Semester after
each learning unit is completed on Moodle. The answers to the questions will then
be discussed with you in lecture sessions. It is compulsory to complete the revision
questions, as this is the best way for you to determine your level of understanding.
Remember, if you are unsure of how to approach a revision question, I am available
for consultation.

2.5 Glossary of unfamiliar terms / concepts / acronyms

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3 READINGS

3.1 Prescribed Readings

 Loubser, M and Midgley, R (eds) (2012) The Law of Delict in South Africa 2 nd
edition
 Neethling et al (2017). Neethling-Visser-Potgieter Law of Delict 7TH edition

3.2 Recommended Readings

 Van der Walt and Midgley (2005) Principles of Delict, 3rd edition
 Boberg. 1998. The Law of Delict revised edition.
 Various law reports available in the Law library and electronically.
 Juta’s Quarterly Review of South African law “Delict” (available electronically)

4 GUIDELINES FOR LEARNERS

4.1 This Learner Guide contains important information relevant to the module.
Please read through it carefully and ensure you have a thorough
understanding of what is expected of you for this module.

4.2 Only typed Online tests (in case of there being one) will be accepted and
these are to be submitted online on Moodle with result of the plagiarism test
from Turnitin. No hand written and hand delivered or emailed tests will be
accepted.

4.3 Online tests submitted after the due date and time will be treated as follows: -
N/A
4.4 The following resource are available on Moodle

TBA

4.5 Consultation bookings can be done on Moodle as follows.

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1.3.5 Proposed lecture structure

NB: Note that two lectures per week (Monday & Tuesday) are for Lex Aquilia and
one lecture (Friday) is for Actio Iniuriarum.

Time lines Learning Unit Specific Sections

Week 1 Introduction to the law of
(14 – 18 February 2022) LUs 1 – 3 delict
Introduction to Actio
LUs 12 -13 Iniuriarum
Week 2 LUs 4 – 5 Conduct & Wrongfulness
(21 – 25 February 2022)
LU 13 Defamation law

Week 3 LU 6 Liability for omission

(28 February – 4 March 202) LU 13 Defamation law

Week 4 LU 6 Liability for omission

(7 – 11 March 2022) LU 13 Fault in Actio Iniuriarum
Week 4 LU 7 Grounds of justification
(14 – 18 March 2022) LU 13 Wrongfulness in Actio
iniuria
Week 5 LU 8 Fault: Intention and
(21 – 25 March 2022) negligence
LU 14 Defences for Actio
Iniuriarum
Week 6 LU 8 Negligence
(28 March – 1 April 2022) LU 14 Defences for Actio
Iniuriarum
Week 7 LU 9 – 10 Causation & specific forms
(11 – 15 April 2022) of delict
LU 14 Defences (cont)
Week 8 LU 10 -11 Specific forms of delict &
(18 – 22 April 2022 Prescription

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 LU 14 Defences (cont)

Week 9 LU 11 Prescription
(25 – 29 April 2022) LU 15 Actions based on dignity
Week 10 – 13 LUs 15 – 16 Privacy; appropriation;
(25 April – 20 May 2022) false light; and vicarious
liability
Week 14 Revision To be confirmed based on
(23 – 27 May 2022) problem areas identified
during the semester

NB: This is subject to change based on the needs of the class, and the clarity
of understanding of the concepts as we progress. Please check Moodle for
any updates to this proposed lecture structure.

72
 ANNEXURE A

FINAL%

FACULTY OF COMMERCE, ADMINISTRATION & LAW

DEPARTMENT OF LAW
ASSIGNMENT COVER SHEET
MODULE TITLE
MODULE CODE
ASSIGNMENT TOPIC

LECTURER NAME
DUE DATE
NON - PLAGIARISM DECLARATION
I know that plagiarism means taking and using the ideas, writings, works or inventions of another as if they
were one’s own. I know that plagiarism not only includes verbatim copying, but also the extensive use of
another person’s ideas without proper acknowledgement (which includes the proper use of quotation marks). I
know that plagiarism covers this sort of use of material found in textual sources and from the Internet. I
acknowledge and understand that plagiarism is wrong. I understand that my research must be accurately
referenced. I have followed the rules and conventions concerning referencing, citation and the use of
quotations as set out in the Departmental Guide. This assignment is my own work, or my group’s own unique
group assignment. I acknowledge that copying someone else’s assignment, or part of it, is wrong, and that
submitting identical work to others constitutes a form of plagiarism. I have not allowed, nor will I in the future
allow, anyone to copy my work with the intention of passing it off as their own work. By signing this cover
sheet, I agree that I have read and understood the above. I acknowledge that should it be found to be higher
than the acceptable similarity percentage, I may receive 0 (ZERO) for my assignment.

LEARNER NAME LEARNER NO SIGNATURE

LECTURER
REMARKS