Causes of Action

2. Delictual Claims
- Claims arising as a result of MV collisions AND assaults are two of the most common
Delictual claims

Motor Vehicle collision

Smash and bash

- First point to consider is whether or not your clients wife suffered any physical injuries in
the collision. Claims for bodily injuries incurred in a motor vehicle accident are generally
know as third party or MVA claims and legislations requires you to sue the RAF.
- If the wife was not injuried, the next question to ask is whether it is the client or his wife
who is going to sue for damages to the car. DO not make the mistake of thinking that it is
the wife who must sue simply because she was driving the vehicle at the time of the
accident.
- Even though it is the wife who was involved in the collision, it is clearly the husband who
must sue since he suffered the damage b/c the car belongs to him.
- You recover the damages under the Lex Aquilia.

The main elements that must be proved:

1) A wrongful act = This is an unlawful act which caused someone PREJUDICE
- One way of making this allegation would be to state that on or about a certain date, at
or near a certain place, a collision occurred btw motor vehicle (details of the plaintiffs
vehicle) owned by the plaintiff, and the motor vehicle driven by the defendant.

2) Fault in the form of negligence = Must show fault EITHER in the form of intention OR
negligence
- One way of making this allegation would be to state that the driver was at fault in
that he was negligent in one, or more, or all the following aspects.
- If the courts concluded both parties were negligent, damages are apportioned, by
the court between the parties based on each party’s respective negligence
(contributory negligence)

3) Causation = There needs to be a connection or causal link btw each element of the
cause of action.

4) Damages = since the action is for patrimonial loss it is necessary for the plaintiff to show
that some loss was suffered.
- First of all, the pre-collision value of the motor vehicle is determined by consulting the
Auto Dealers digest.
 - The market value is taken to be the average btwn the trade in value and the retail value
for the vehicle in question.
- The post-collision value of the vehicle is then determined by asking three qualified and
reputable panel beaters to assess the value of the damaged motor vehicle.
- The post –collision value is taken to be the higher of the 3.
- The difference btwn the pre and post and pre collision value of the vehicle is then
calculated by subtracting the post collision value for the pre-collision value.
- The fair and reasonable cost of repairs is also calculated by asking each of 3 qualified
and reputable pane beaters referred to above to provide a quotation for repairing the
vehicle.

5) Vicarious liability = Where the driver was acting within the scope and course of his
employment when the accident happened, your clients course of action would be against
the owner of the vehicle.

Assault
The main elements are:
1) A wrongful Act = The main issue her will clearly be whether or not the bouncer has any
defence. If he has a defence, then his act was not wrongful and your client will not have
valid cause of action.
2) Fault in the form of intention = it must be alleged that the person intended to punch your
client.
3) Causation = it must be alleged that the punch injured your client
4) Damages = where damages are claimed for bodily injuries, it is important to break the
claim down into its various components, such as medical expenses, pain and suffering, loss
of past and future income, loss of amenities and disfigurement.

A Damage claim for bodily injuries is liquidated until the court delivers its judgment quantifying
the damages.

5) Vicarious Liability – you action against the person to be against his employer, would
require you to allege that the person was acting within the course and scope of his
employment at the time of the assault .

3. Contractual claims

1) Sale on credit- sellers remedies:

- You perform, and the buyer partially performs. You have two options:
a) You may try to ENFORCE the contract by demanding that the OTHER party PAY the
outstanding balance of the PP  Specific Performance
b) You may CANCEL the contract AND try and get your performance back Claim form
cancelation of the contract together with restitution
 If you claim specific performance, you may also claim damages.

Whichever option you choose  You will have to allege AND prove that there was a
VALID COS:
1) There was an agreement to buy and sell the thing
2) There was an agreement on the item to be bought and sold
3) There was agreement on the price to be paid

- If your client claims specific performance, you will have to PROVE NOT ONLY the
contract BUT ALSO that the PP is due AND payable b/c you have PERFORMED
- If your client decides to CANCEL the contract  Have to prove the contract AND
That person breached the contract AND the you have the right to CANCEL the
contract because the breach was MATERIAL
- A notice of cancellation of the contract PRIOR to the legal proceedings is NOT
strictly necessary since the legal DOCS initiating the action will serve this PURPOSE

2) Sale for cash – sellers remedies:

- Ownership W/N pass UNTIL the full amount of the PP had been paid
- You have performed, and the buyer has PARTIALLY performed.
- REMEDIES = Specific performance OR Cancelation
- As ownership has NOT passed to the buyer  Also have the rei vindication available
to you.
- ITO rei vindication you will have to PROVE the FF:
a) You are the OWNER of the property
b) DEF was in possession of the property at the time of the institution of the action

- Apart from the above = it would be wise for your client to claim alternative relief.
- The alternate relief would be claimed ITO the actin ad exhibendum AND would be for
payment of the VALUE of the property from the erstwhile possessor

You will have to prove the following for a claim ito the actio ad exhibendum:
a) You were the OWNER of the property when it was disposed of by the DEF
b) DEF had been in possession of the property
c) AT the time the DEF disposed of the property  He KNEW that it was owed by your
client.
d) DEF intentionally disposed of the property

3) Buyers remedies
- PP is paid in full AND after a while the buyer realizes that there is a DEFECT in the
property.
- The first point is that the defect must have been LATENT.
- If the defect is PATENT  BUYER W/N have any remedy available to him
 - NEXT Q = Whether the seller OR buyer KNEW about the defect

- If we assume the seller KNEW, about the defect AND deliberately withheld the INFO
from the buyer  Do EITHER of the FF:
a) Stick to the contract AND claim the benefit of his bargain ( full repairs to the
property) AND damages
b) Cancel the contract, RETURN the property AND claim his money back AND any
damages

- Now let’s assume NEITHER the seller/buyer KNEW about the latent defect to the
property.
- FIRST Q = Whether it was sold voetstoots
- IF YES = Buyer would have NO remedies available to him under CL (although if the
CPA applies to the transaction he might have a remedy).

- If it was NOT sold voetstoots  BUYER would have FF remedies available:

a) Action redhibitoria = allows the contract to be brought to an end, would be
applicable if the latent defect was such that it rendered the property completely unfit
for its purpose
b) The actio quanti minoris = which allows a reduction in the purchase price,, would
be applicable is the latent defect was not such as to render the property unfit for its
purpose.

4. Divorce
- Special rules apply to jurisdiction in divorce cases.
- COURT demand that legal DOCS initiating action in these matters be served in a certain
way  By means of personal service.
- It is possible to apply for a special type of INTERIM relief while the divorce action is still
PENDING (Interim care of or contact with the children)

In very general terms, a person claiming divorce must SATISFY the court of the FF:
1) There was a valid marriage btw the parties, which still EXISTS
2) The court has jurisdiction
3) The marital regime under which the parties are married
4) Whether there are any children under the age of 18 OR Dependents
5) Whether the person suing for divorce wants to claim sole guardianship, the right to
care for OR maintain contact with any children.
6) Amount of maintenance required for the children
7) REGS promulgated ito the Mediation in Certain Divorce Matters Act have been
complied with
8) GROUNDS upon which the divorce is being sought
 9) Whether maintenance is being claimed by the person seeking the divorce, or whether
the person seeking the divorce is offering to pay maintenance to the defendant
10) Whether the parties have drawn up a settlement agreement BEFORE the proceedings
started

The following proprietary claims may be encountered :

1) if the parties have a JOINTLY owned estate the a division of the joint estate will be
claimed.
2) Specific performance of any outstanding obligations created by the ANC
3) Redistribution of assets ito s7(3) or (6) of the Divorce Act
4) Forfeiture of patrimonial benefit ito s9 of the Divorce Act. The court may make an
order that the patrimonial benefit of the marriage be forfeited by one party in favour of
the other, if the court having regard to the duration of the marriage, the circumstances
which gave rise to the breakdown thereof and any substantial misconduct on the part of
either parties, is satisfied that the one party, in relation to the other will be unduly
benefited, it the order of forfeiture is not made.
5. Claim based on a liquid documents
- A liquid document is a DOC which refers to a liquid sum.
- The characteristics of a liquid document are that it is an unconditional , written
acknowledgment of liability for a specific amount of money, payment of which is DUE to
the creditor.

- EG of liquid documents:
1) A Cheque
2) A written acknowledgment of debt
3) A mortage bond

- To enforce your claim you use a provisional sentence procedure.

- You will have to prove the following elements:
1) That the cheque was drawn by the DEF
2) You were the legal holder. In other words:
3) You presented the cheque for payment
4) The cheque was dishonored by nonpayment
5) Notice of dishonour of the cheque was given to the DEF
6) Notice of dishonor was dispensed with for a reason set out in s48 of the Bills of
Exchange act
7) NOTE that in these cases  Cause of action arises at the place WHERE the
cheque is drawn, as well as the place where it is dishonoured by nonpayment.