Sources
 Delict in Roman law fell under the law of
obligations.[5] Roman-Dutch law, based on Roman
law, is the strongest influence on South
Africa's common law, where delict also falls
under the law of obligations. As has been
pointed out, however,
 In contrast to the casuistic approach of the
Roman law of delict, the South African law of
delict is based [...] on three pillars: the actio
legis Aquiliae, the actio iniuriarum and the
action for pain and suffering. Unlike the lastmentioned action which developed in RomanDutch law, the first two remedies had already
played an important role in Roman law.

 Damages
 Damages
in delict are broadly divided into
 patrimonial damages, including medical
costs, loss of income and the cost of repairs,
which in turn fall under the heading of
special damages;
 non-patrimonial damages, including pain and
suffering, disfigurement, loss of amenities
and injury to personality, which fall under
the heading of general damages; and
 pure economic harm, which is not connected
to any physical injury or damage to property.
Liability
Although delict may be described as at bottom a system of
loss allocation, it is important to note that not every
damage or loss will incur liability at law. "Sound policy,"
wrote Oliver Wendell Holmes, Jr, "lets losses lie where
they fall, except where a special reason can be shown for
interference." As Christian von Bar puts it, "The law of
delict can only operate as an effective, sensible and fair
system of compensation if excessive liability is avoided. It
is important to prevent it becoming a disruptive factor in
an economic sense. No law based on rational principles can
impose liability on each and every act of
carelessness."[7] There are, for this reason, in-built
mechanisms in the South African law of delict to keep
liability within reasonable limits. The element of fault,
introduced below, is one such. If its conditions are not
met, liability will not arise


 Elements
 Van
der Walt and Midgley list the elements of
a delict as follows:
 "harm sustained by the plaintiff;"
 "conduct on the part of the defendant which
is
 "wrongful;"
 "a causal connection between the conduct
and the plaintiff's harm;" and
 "fault or blameworthiness on the part of the
defendant
Harm
 The harm element is "the cornerstone of the law
of delict, and our fundamental point of
departure."[10] Once the nature of the harm is
identified, it is possible to identify the nature of
the enquiry and the elements that need to be
proven. There is an interplay between the
elements of harm and wrongfulness, and a
similar interaction between the way in which we
determine harm and assess damages. "For
conceptual clarity," suggest the academic
authorities, "it is always important to remember
where we are going along the problem-solving
route towards the intended destination.

Conduct
It is vitally important that the conduct be voluntary. There
must be no compulsion, in other words, and it must not be
a reflex action. (The person engaging in the conduct must
also be compos mentis or in sound mind and of sober
senses, not unconscious or intoxicated, for example. He
must be accountable for his actions, having the ability to
distinguish between right and wrong, and to act
accordingly. Unless this standard of accountability is
secured, he will not be accountable for his actions or
omissions. There will be no fault.) Conduct relates to overt
behaviour, so that thoughts, for example, are not
delictual. If it is a positive act or commission, it may be
either physical or a statement or comment; if an
omission—that is, a failure to do or say something—liability
arises only in special circumstances. There is no general
legal duty to prevent harm.


Causation
 Conduct in the law of delict is usually divided into factual
and legal causation. Factual causation is proven by a
"demonstration that the wrongful act was a causa sine qua
non of the loss." This is also known as the "but-for" test. A
successful demonstration, however, "does not necessarily
result in legal liability." Once factual causation is proved, a
second enquiry arises: Is the wrongful act linked
sufficiently closely or directly to the loss for legal liability
to ensue? Is there legal liability, or is the loss "too remote"?
This is basically a juridical problem. Considerations of
policy may play a part in its solution.[12] The courts take a
flexible approach based on considerations of
reasonableness and fairness and justice, although there
are misgivings. As the court put it in Fourway Haulage SA v
SA National Roads Agency


Considerations of fairness and equity must
inevitably depend on the view of the individual
judge. In considering the appropriate approach
to wrongfulness, I said that any yardstick which
renders the outcome of a dispute dependent on
the idiosyncratic view of individual judges is
unacceptable. The same principle must, in my
view, apply with reference to remoteness. That
is why I believe we should resist the temptation
of a response that remoteness depends on what
the judge regards as fair, reasonable and just in
all the circumstances of that particular case.
Though it presents itself as a criterion of general
validity, it is, in reality, no criterion at all
 In
summary, delictual liability requires a
factual causal link between wrongful and
culpable conduct, on the one hand, and loss
suffered on the other. There must also be
legal causation; the loss must not be too
remote. To establish legal causation, the
courts apply a flexible test based on
reasonableness, fairness and justice, or
policy and normative considerations. The
flexible test, or "elastic test for legal
causation," incorporates subsidiary tests; it
does not replace them

Rigidity, the court held in Smit v Abrahams,[16] is
inconsistent with the flexible approach or criterion in
South African law, whereby the court considers on the
basis of policy considerations whether there is a
sufficiently close connection between act and
consequence. That question has to be answered on
the basis of policy considerations and the limits of
reasonableness, fairness and justice. Reasonable
foreseeability cannot be regarded as the single
decisive criterion for determining liability, but it can
indeed be used as a subsidiary test in the application
of the flexible criterion. The flexibility criterion is
predominant; any attempt to detract from it should
be resisted. Comparisons between the facts of the
case which has to be resolved and the facts of other
cases in which a solution has already been found can
obviously be useful and of value
 sometimes
decisive, but one should be
careful not to attempt to distill fixed or
generally applicable rules or principles from
the process of comparison. There is only one
principle, the court found: To determine
whether the plaintiff's damages are too
remote from the defendant's act to hold the
defendant liable therefor, considerations of
policy (reasonableness, fairness and justice)
should be applied to the particular facts of
the case
A novus actus interveniens is an independent and
extraneous factor or event which is not
foreseeable and which actively contributes to
the occurrence of harm after the original harm
has occurred. This is the case, for example,
in International Shipping v Bentley, where there
was an auditing error, and in Mafesa v Parity,
with a "crutch mishap."
 The talem qualem rule (or "thin-skull" or "eggskull" rule) provides that, in the words of Smit v
Abrahams, "the wrongdoer takes his victim as he
finds him."[18] An important case here is Smith v
Leach Brain.

Fault
Fault refers to blameworthiness or culpability,
while culpa is fault in a broad sense, in that it
includes dolus and culpa in the strict sense.
Accountability is a prerequisite for fault: The person
at fault, to be at fault, must be culpae capax, having
the ability to know the difference between right and
wrong and to act accordingly. Unless one is in this
sense accountable, one is not accountable for one's
actions or omissions; one is, in other words, culpa
incapax. It is important to remember that there is a
distinction between the question of absence of
voluntariness of conduct and that of accountability.
Voluntary conduct entails no compulsion; the conduct
must not have been reflex; the person must have
been compos mentis, or of sound mind and sober
senses, not unconscious, intoxicated etcetera.


Accountability relates to overt behaviour
(Thoughts cannot be delictual.) There must be
some positive act or commission, either physical
or in the form of a statement or comment, or
else an omission: a failure to do or say
something. Liability only arises in special
circumstances: There is no general legal duty to
prevent harm. Factors excluding liability include
 youth or emotional and intellectual
immaturity;[20][21]
 mental disease or illness, or emotional
distress;[22]
 intoxication;[23] and
 provocation.

 There
are two main components of intention:
 direction of the will (the manner in which
the will is directed):



dolus directus;
dolus indirectus; and
dolus eventualis;
 consciousness
of wrongfulness







Animus iniuriani arises when both requirements—direction
of will and knowledge of wrongfulness—are satisfied. The
test is subjective. There are exceptions to the requirement
of knowledge of wrongfulness, as in the case of deprivation
of liberty or wrongful arrest, which results in
attentuated animus iniuriandi.[26]
There are several defences which exclude intent:
mistake;[27]
jest;
intoxication;
provocation; and
emotional distress.
The test for negligence is one of the objective or
reasonable person (bonus paterfamilias). The
test requires "an adequate and consistent level
of care on the part of all legal subjects." It "does
not represent a standard of exceptional skill,
giftedness or care but does also not represent a
standard of undeveloped skills, recklessness or
thoughtlessness." It is the standard of the
ordinary individual who takes reasonable
chances and reasonable precautions.
 The test has two pillars:

 foreseeability,


the likelihood or degree or extent of risk created
by the conduct; and
the gravity of possible consequences; and
 preventability,


which refers to
under which heading may fall
utility of conduct; and
burden.
Harm or loss
One obvious prerequisite for liability in terms of the
law of delict is that the plaintiff must have suffered
harm; in terms of the lex Aquilia, that harm must be
patrimonial, which traditionally meant monetary loss
sustained due to physical damage to a person or
property. Now, however, patrimonial loss also
includes monetary loss resulting from injury to the
nervous system and pure economic loss. A plaintiff
may claim compensation both for loss actually
incurred and for prospective loss, including, for
instance, the loss of earning capacity, future profits,
income and future expenses.

