Law of Delict: South African study guide

About this module

The Law of Delict teaches when one person must pay for harm they wrongfully caused another, outside a contract. Educational tool, not legal advice. All law is South African.

Level: usually second or third year (LLB). Prior knowledge: Module 1 (sources, precedent, the Constitution, prescription), Module 2 (capacity and accountability of children and of people with mental illness) and Module 3 (contract, especially C1.5 on contract and delict).

How this guide teaches

Every chapter is taught like a teacher would: plain language first, a problem to start, "In short" summaries, case boxes (Legal issue / Held / Why it matters; facts only where they help distinguish a case, never amounts), memory aids, common mistakes, and a five-sentence recap. Cases are the prescribed or commonly taught ones, cross-checked across universities; where a prescribed case cannot be found or checked, a verified case on the same point is used and the substitution is recorded. Worked examples use the labels The facts / Issue / Principle / Application / Conclusion.

Common cases and how they are checked

The module teaches from the leading Constitutional Court, Supreme Court of Appeal and Appellate Division cases that the prescribed textbooks build each topic on, because no course outline found online names its cases. Each case was read on SAFLII where it is there (19–20 October 2026). Older Appellate Division judgments are mostly not on SAFLII; for those, the module relies on a later judgment that quotes them, or on a headnote, and says so.

Substitutes. Molefe v Mahaeng is used for voluntariness, because Groenewald, often listed for automatism, turned out to be about intention and causation; it is used in D4 instead. Maimela is used for necessity. Dugmore is used for the measure of patrimonial loss, because Warneke is not online.

Read through a tool. SAFLII pages were read through a summarising tool. Quotes are short and were checked a second time where possible; an independent check was carried out.

Module blueprint

The module follows one question through five tests: did the defendant act, was it wrongful, was it their fault, did it cause the harm, and what harm was done? Chapters D1 to D6 teach those five elements; D7 to D10 apply them to the special forms of liability every university covers.

Outcomes. By the end, a student can: state and apply the five elements of a delict (LD1 to LD6); apply them to the special forms of liability (LD7 to LD10); and answer a full delict problem question in the Issue / Principle / Application / Conclusion format, citing the leading cases (LD11).

Memory aid. The five elements in order: Conduct, Wrongfulness, Fault, Causation, Harm: "Can We Find Clear Harm?"

Depth. Second- or third-year LLB, to the standard of the Rhodes, UCT and UNISA courses. Each chapter follows the template of Modules 1 to 3: a starting problem, the big picture with key words, teaching sections with case boxes, common mistakes, a five-sentence recap, then practice (worked examples, flashcards, a quiz) and source notes.

Links back. Accountability of children and of people with mental illness (Module 2); the Constitution and precedent (Module 1); prescription (Module 1, T7); contract and delict, and negligent misrepresentation (Module 3, C1.5 and C4).

D1: What a delict is

B. Start with a problem: the van, the WhatsApp group and the wet floor

1. A delivery van reverses carelessly into Sipho's parked car. The repairs cost R18 000.
2. A neighbour posts on the street's WhatsApp group that Lerato "steals from her employer". It is untrue.
3. Ayanda slips on an unmarked wet floor in a supermarket and breaks her leg. She pays R40 000 in medical bills and is in pain for months.

Think first: Does each of them have a claim? Is it the same kind of claim in all three cases? What would each have to prove?

C. The big picture

In short: a delict is a wrongful, blameworthy act that causes harm to another person. The person harmed can claim compensation, but only by proving five elements: conduct, wrongfulness, fault, causation and harm.

The law of delict decides when one person must pay for harm they caused another, where there is no contract that settles the question. Its basic rule is that everyone bears their own loss. A loss is shifted to someone else only when the law's requirements for liability are met.

By the end of this chapter you should be able to answer five questions:

1. What is a delict, and what must a plaintiff prove?
2. What are the three main delictual actions, and what does each protect?
3. How does a delict differ from a breach of contract and from a crime?
4. Can the same facts be both a delict and a breach of contract?
5. How has the Constitution changed the law of delict?

Key words

D. Teaching the concepts

D1.1 What a delict is

In short: a delict is the act of a person that, in a wrongful and blameworthy way, causes harm to another.

The law protects a range of interests: your body, your property, your money, your reputation, your dignity and your privacy. When someone harms one of these interests, the law asks whether the harm should stay where it fell, or whether the person who caused it must pay. A delict is the answer "yes, they must pay".

The aim of delictual damages is compensation, not punishment. The plaintiff is put, as far as money can do it, in the position they would have been in had the delict not been committed (D6).

D1.2 The five elements

In short: every delict has five elements, and if one is missing there is no delict.

[embedded content: the five elements of a delict · one chapter each]

The plaintiff must get through all five boxes; failing any one ends the claim.

Memory aid. "Can We Find Clear Harm?" Conduct, Wrongfulness, Fault, Causation, Harm.

The plaintiff bears the onus of proving each element on a balance of probabilities. Some rules shift the burden: for example, a defendant who relies on a ground of justification such as self-defence must prove it (D3), and in defamation, once publication of defamatory words is proved, wrongfulness and intention are presumed (D8).

Back to Sipho. The van driver acted (reversing), wrongfully (damaging another's property is prima facie wrongful), negligently (a reasonable driver would have looked), causing harm (R18 000 in repairs). All five elements are present.

Checkpoint 1. A tree on Thabo's land, perfectly healthy, is struck by lightning and falls on his neighbour's garage. Is Thabo liable in delict? Which element is missing? (Answer: CP1.)

D1.3 The three main actions

In short: which action you use depends on the kind of harm: money loss (Aquilian action), injury to personality (actio iniuriarum), or pain and suffering from bodily injury (the action for pain and suffering).

The same facts can found more than one action. A person injured in a car crash may claim medical costs and lost earnings (Aquilian action) and compensation for pain and suffering (the action for pain and suffering) in one case.

Back to the problem. Sipho has an Aquilian claim for repairs. Lerato has a claim under the actio iniuriarum for injury to her reputation (defamation, D8). Ayanda has an Aquilian claim for her medical costs and a claim for pain and suffering, if she proves the supermarket was negligent.

D1.4 Delict, contract and crime

In short: a delict is a civil wrong that gives the victim a claim for compensation; a crime is a wrong against the state, punished by the state; a breach of contract is the breaking of an obligation the parties agreed on.

One act can be all three. A guard who lets robbers into a house he was hired to protect may breach the security company's contract, commit a delict against the family members who are not parties to the contract, and be investigated for a crime. In Loureiro (D3) the security company was held liable to Mr Loureiro in contract, and to his wife and children in delict.

Where the parties' duties are set out in a contract, a court is slow to allow a claim in delict for pure financial loss instead (Lillicrap, Module 3, C1.5; D7).

D1.5 The Constitution and delict

In short: delict is common law, but the courts must develop it in line with the Bill of Rights (s 39(2)), and constitutional values now shape wrongfulness, vicarious liability and much else.

The Bill of Rights protects many of the interests delict protects: life, bodily integrity, dignity, privacy, property. Section 39(2) of the Constitution says that when a court develops the common law, it must promote the spirit, purport and objects of the Bill of Rights.

Case: Carmichele v Minister of Safety and Security (Constitutional Court, 2001)

• Legal issue: Must courts apply s 39(2) when deciding whether the police and prosecutors owed a legal duty to protect a person from a violent offender?
• Held: Yes. The lower courts erred by not considering s 39(2) when deciding whether a legal duty existed (para 37); courts are "under a general obligation to develop it appropriately" (para 39). The state's duties include a positive duty to provide appropriate protection (para 44) (Ackermann J and Goldstone J, unanimous).
• Why it matters: it requires courts to develop delict in line with the Constitution, especially when deciding whether the state owed a legal duty to prevent harm (D3). It did not itself decide that the state was liable; that was left to the trial.

Checkpoint 2. Is the Constitution a separate source of delictual liability that replaces the common law? (Answer: CP2.)

I. Common mistakes

J. Recap in five sentences

1. A delict is a wrongful, blameworthy act that causes harm to another.
2. The plaintiff must prove five elements: conduct, wrongfulness, fault, causation and harm.
3. The Aquilian action compensates patrimonial loss; the actio iniuriarum gives satisfaction for intentional injury to personality; the action for pain and suffering compensates non-patrimonial loss from bodily injury.
4. Delict is a civil wrong owed to everyone; contract duties come from agreement; crimes are punished by the state; one act can be all three.
5. Courts must develop delict in line with the Bill of Rights (s 39(2); Carmichele).

Back to the problem. Sipho: Aquilian action for repairs. Lerato: actio iniuriarum for defamation. Ayanda: Aquilian action for medical costs and the action for pain and suffering, if the supermarket was negligent.

Explain it to a friend. In about 100 words, explain why your friend can sue the driver who scratched her car, but not the storm that blew a branch onto it.

D1 practice

Checkpoint answers

Worked example: the cricket ball

The facts. During a school match, a batter hits a ball over the fence. It breaks a passing motorist's windscreen. The windscreen costs R6 000 to replace.

Issue. Which action may the motorist use, and what must he prove?

Principle. Patrimonial loss caused wrongfully and with fault is claimed with the actio legis Aquiliae. The plaintiff must prove conduct, wrongfulness, fault, causation and harm.

Application. The loss (R6 000) is patrimonial. The motorist must prove that someone acted (the school, in where it placed the pitch and fence, or the batter), that the conduct was wrongful, that it was negligent (would a reasonable person have foreseen balls clearing the fence and guarded against it?), and that it caused the damage.

Conclusion. He uses the Aquilian action. The likely fight will be over negligence: whether the risk was foreseeable and whether reasonable steps (a higher fence, a different pitch) were needed (D4).

Started for you. A newspaper falsely reports that a teacher was convicted of fraud. She has lost no money. Because her loss is to her reputation, not her patrimony…

Your task: finish in two sentences. Model answer: …she sues with the actio iniuriarum for defamation. She claims satisfaction (solatium) for the injury to her reputation, and need not prove any financial loss (D8).

Try it yourself. A security guard employed by a company that guards a block of flats lets a burglar in. The burglar steals a tenant's laptop. The tenant has no contract with the security company. Hint: conduct, wrongfulness, fault, causation, harm; and Loureiro.

Model answer (outline): the tenant cannot sue in contract, but may sue the company in delict: the guard's conduct (opening the gate), its wrongfulness and negligence (D3, D4), causation and the patrimonial loss; the company may be vicariously liable for its employee (D9).

Flashcards (15)

Quiz (38 marks, about 45 minutes)

Section A (6 marks, 1 each).

1. A delict requires: - A. conduct and harm only. - B. conduct, wrongfulness, fault, causation and harm. - C. a contract between the parties. - D. a criminal conviction.
2. The actio iniuriarum is used for: - A. damage to a car. - B. lost earnings. - C. medical expenses. - D. injury to reputation or dignity.
3. Delictual damages aim to: - A. compensate the plaintiff. - B. punish the defendant. - C. enrich the plaintiff. - D. deter the state.
4. Pain and suffering after a car crash is claimed with: - A. the actio iniuriarum. - B. the Aquilian action. - C. the action for pain and suffering. - D. a contractual claim.
5. In Carmichele, the Constitutional Court: - A. held the state liable for the attack. - B. held that courts must consider s 39(2) and sent the case back to trial. - C. abolished the law of delict. - D. awarded constitutional damages.
6. The standard of proof in a delictual claim is: - A. beyond reasonable doubt. - B. clear and convincing evidence. - C. certainty. - D. a balance of probabilities.

Section B (12 marks).

7. Name and explain the five elements of a delict. (6)
8. Distinguish the three main delictual actions by interest protected, fault and remedy. (6)

Section C (20 marks).

9. Advise Sipho, Lerato and Ayanda in section B of this chapter. (10)
10. "The Constitution has made the law of delict a branch of constitutional law." Discuss, with reference to Carmichele. (10)

Answer key

Q7 (6). Conduct, wrongfulness, fault, causation, harm, each with its question (1 each, plus 1 for onus on the plaintiff).

Q8 (6). Aquilian: patrimonial, intention or negligence, damages (2); actio iniuriarum: personality, intention, satisfaction (2); pain and suffering: bodily integrity, intention or negligence, compensation (2).

Q9 (10). Sipho: Aquilian action, elements present (3). Lerato: actio iniuriarum, defamation (3). Ayanda: Aquilian action and pain and suffering, negligence to be proved (4).

Q10 (10). Delict remains common law (2); s 39(2) duty to develop it (2); Carmichele: legal duty of the state, positive duty to protect (3); evaluation: influence through values, not replacement (3).

D1 source notes