The question to be answered is whether or not an ordinary, decent, right-thinking person would consider such conduct to be insulting. c) The law of delict belongs to the part of private law known as the “law of obligations” d) The law of delict consists of a set of separate delicts. Then the court will presume that the infringement was wrongful and intentional (but it is open to the defendant to prove otherwise: rebutting presumptions of wrongfulness and intention, usually by proving a defence). [9] The person responsible must have legal capacity, and his conduct must be voluntary, much as in criminal law. The court inquires whether or not the defendant's conduct is socially acceptable by balancing the interests of the parties, by looking at the relationships which exist and the consequences of the defendant's conduct, and by considering the results of a decision in favour of either party. Intention (dolus) concerns the actor's state of mind. One cannot be held liable for having negligently insulted or defamed another, or for having negligently invaded another's privacy. Damages in delict are divided into: patrimonial/special damages (including medical costs, loss of income and the cost of repairs); non-patrimonial damages/general damages (including pain and suffering, disfigurement, loss of amenities and injury to personality); If an intention to shock is established, intention limits the ambit of the claim. It must not have been a trivial emotional experience. Defamation is the infringement of one's fama: the unlawful and intentional publication of defamatory matter (by words or by conduct) referring to the plaintiff, which causes his reputation to be impaired. If the burden of eliminating a risk of harm outweighs the magnitude of the risk, the reasonable person would not take steps to prevent the occurrence of the foreseeeable harm. (Any element of attachment or affection for a damaged article, for example, is excluded.) "fault or blameworthiness on the part of the defendant." Such loss is non-patrimonial, in that it is intangible and does not impact negatively on the plaintiffs economic or monetary position. In all instances, the court will consider possible defences. A delict is constituted by the infringement of any legally recognised interest of another party, excluding the non-fulfilment of a duty to perform by a contractual party. the gravity or seriousness of the possible harmful consequences that are risked. It is not for the public benefit, however, to publish matter which is only partially true, or to rake up the past: A person can reform. Dignitas is a generic term meaning "worthiness," "dignity" and "self respect," and compromises related concerns like mental tranquillity and privacy. He is a member of the Academy of Science of South Africa and an advocate of the High Court of South Africa. The reference may be by implication, where the facts are well-known, or easily ascertainable. The general principle is that a defendant is not liable in damages in respect of the publication of defamatory material if it amounts to fair comment on a matter of public interest. "[4] (Roman-Dutch law, based on Roman law, is the strongest influence on South Africa's common law.) An act of defence is justified only if it was reasonably necessary for the purpose of protection of the threatened or infringed interest. A person acts in private defence, and therefore lawfully, when he uses force to ward off an unlawful attack against his or someone else's property or person. Introduction to the law of delict. One of the reasons why the law distinguishes between different forms of conduct is that this affects the way the courts deal with the question of wrongfulness. "wrongful;" 4. This involves two questions: The enquiry is purely subjective, focusing on the capacity of the specific individual, and is concerned with the mental, not the physical, capacity of a person. Loubser (Ed), Midgley (Ed), Mukheiber, Niesing, Perumal The Law of Delict in South Africa 2ed (2012) NB: Students are advised to read the prescribed textbook together with J. Neethling & J.M. Even though every endeavour has been made as to the accuracy of the information, we cannot be held responsible for any errors and/or omissions. delict… In some instances, the possibility of harm resulting, even if serious, may be so slight that precautions need not be taken at all. Labour law rules! South African law and Sri Lanka also use the law of delict as opposed to torts. It has been heavily influenced by South African law. Politics A. Heywood. Delictual harm is usually caused, if not always directly,[8] by human conduct. Where harm takes the form of nervous shock, the conduct is again not wrongful unless special reasons exist to warrant liability. 8 - Joint wrongdoers. In respect of a claim in terms of the lex Aquilia, there is only one function: to restore the plaintiff's patrimony and, as far as possible, to place him in the position he would have occupied in had the delict not been committed. "[1] JC Van der Walt and Rob Midgley define a delict, "in general terms [...] as a civil wrong," and more narrowly as "wrongful and blameworthy conduct which causes harm to a person. consent, or free and voluntary assumption of risk. One must, Intention should not be confused with malice or motive. c) The law of delict belongs to the part of private law known as the “law of obligations” d) The law of delict consists of a set of separate delicts. failure to take the reasonable precautions. Introduction to Law and Legal Skills J. Barnard-Naude, L.J. Infringement of fama is the impairment of reputation, better known as defamation. The applicable defences are different, however. These are determined by the nature and consequences of the conduct: An omission, as noted previously, is not prima facie wrongful, even when physical damage is caused. Once it has been established that a reasonable person would have foreseen the possibility of harm, the question arises of whether or not he would have taken measures to prevent the occurrence of the foreseeable harm. It reflects the law's disapproval of the defendant's conduct. The guidelines for determining reasonable foreseeability were formulated in Lomagundi Sheetmetal and Engineering v Basson: What a prudent man would or would not do, or would or would not foresee in any particular case, must depend on a very wide variety of circumstances and few cases are ever identical in the relevant circumstances. South African law does not allow a plaintiff to claim punitive damages from a defendant in a private claim, as this is seen as being contrary to public policy. Under the Germanic remedy, one can claim in respect of physical pain, mental distress, shock, loss of life expectancy, loss of amenities of life, inconvenience and discomfort, disability and disfigurement (and the humility and sadness which arise therefrom).