“No Harm No Foul” – The Concept of Delict

Delict is a fundamental aspect under South African civil liability and plays a pivotal role in safeguarding an individual’s rights and interests. Finding its origin in Roman-Dutch law and enriched by constitutional principles, delictual liability governs actions for damages arising from wrongful conduct. From negligence to strict liability, the landscape of the claim for delict is multifaceted. This article aims to serve as a foundational guide, exploring the essentials of delict in South African law, unraveling and understanding its intricacies, and shedding light on its significance in contemporary legal discourse. 

Consider a scenario where an individual, seeking cosmetic enhancement, visits a surgeon offering such treatments. Entrusted with the delicate task of overall cosmetic facial enhancement and rejuvenation, the surgeon, in a bizarre twist of events, mistakenly administers treatment intended for amputation, resulting in the individual waking up without her left leg. Or the more common example of a person, clearly lacking the requisite care or skill, negligently bangs their car door into your vehicle, causing damage, a claim based on delict is the logical way forward.

To succeed in a claim for delict, certain requirements must be fulfilled by the injured party. The basic elements for delict are:

Conduct – The main part of every delictual claim. This refers to a voluntary human act (such as the person opening the car door with too much force). While the mere act of opening the door is not wrongful, it can be performed wrongfully. To determine whether the conduct was wrongful, two questions must be answered:

1. Is there a legally recognized interest that has been infringed?
2. Was the legally recognized interest infringed unreasonably or wrongfully?

If both questions can be answered positively, the conduct will be deemed wrongful.

Wrongfulness – The concept of wrongfulness is closely related to conduct. To be wrongful, the conduct must infringe a legally recognized interest in an unreasonable and wrongful manner. Thus, was the conduct performed by the injuring party done in a way that is legally reprehensible?

Fault – This can occur in two forms (as above), intention and negligence. Fault essentially means the individual who caused the injury can be held liable for their conduct. Negligence in particular occurs when the individual unintentionally committed the wrongful act. To establish negligence, one must apply the reasonable person test:

1. Would a reasonable person have foreseen their conduct could cause damage?
2. If yes, could this person have taken any preventative steps to avoid causing damage?

If both questions can be answered in the affirmative, a person will be considered negligent.

There are no special requirements to what is considered a ‘reasonable person’, it merely entails what the ‘Average Joe’ would have done should they have been placed in the position of the person who caused the damage.

Causation – This is viewed as a crucial link of delictual liability. A clear connection must be established between the action committed by the individual, and the damage which happened as a result thereof. Thus, did the conduct of the individual directly lead to the damage? This requirement aims to ensure the wrongful actions of the individual were the direct cause of the resulting harm incurred by the injured party.

Damage – This includes both patrimonial (monetary) and non-patrimonial loss (no direct monetarial value). This deals with comparing the position of the injured party immediately before and after the actions by the individual who caused the damages. Both claims founded on either of the above will be awarded damages in a monetary value, with the aim of compensating the injured party.

Should you find yourself in a scenario where you believe a delictual claim exists, it is best to approach a legal practitioner for advice on the way forward to best resolve and rectify the situation.

The content does not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. Kindly contact us on info@cklaw.co.za or 021 556 9864 to speak to one of our attorneys.