South African law of delict

The South African law of delict engages primarily with "the circumstances in which one person can claim compensation from another for harm that has been suffered." 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." Importantly, however, the civil wrong must be an actionable one, resulting in liability on the part of the wrongdoer or tortfeasor.

The delictual inquiry "is in fact a loss-allocation exercise, the principles and rules of which are set out in the law of delict." The classic remedy for a delict is compensation: a claim of damages for the harm caused. If this harm takes the form of patrimonial loss, one uses the Aquilian action; if pain and suffering associated with bodily injury, a separate action arises, similar to the Aquilian action but of Germanic origin; finally, if the harm takes the form of injury to a personality interest (an injuria), the claim is made in terms of the actio injuriarum.

Delict in Roman law fell under the law of obligations.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 last-mentioned action which developed in Roman-Dutch law, the first two remedies had already played an important role in Roman law.

Damages in delict are broadly divided into

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." 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.

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