2024

DELICT
LAWS3041A
1. GENERAL INFORMATION
Please consult the SOL General Ulwazi site for general information on courses and procedures in
the School of Law. The policies and procedures to apply for a deferred exam, to institute
grievance procedures are set out on the SOL General Ulwazi site.

Please also consult the relevant Semester Planner for further policies and procedures.

2. INTRODUCTION
This course provides the student with a critical understanding of part of the legal discipline
traditionally known as the law of delict. The definitions, histories, and sources of delict are critically
examined. The definitions, histories, and sources are then put to practical application through a
survey of principles that regulate three types of injuries: harms to dignity (including hate speech,
defamation, and insult), property (including tangible harm and pure economic loss), and the body
(including RAF liability, assault, and pain and suffering). The role of the Constitution, statutory liability
schemes, customary law, and common law rules are considered for each type of harm. Finally,
litigation strategies for delictual disputes are explored, including the issues of vicarious liability,
transmissibility of actions, and the basics of legal drafting.

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 AIMS AND LEARNING OUTCOMES OF DELICT

THE AIMS OF DELICT

By the end of this course, for purposes of the final assessment, you should be able to read a
complex set of facts related to a multi-dimensional delict dispute, analyse it, and strategically and
critically work with the law to present a well-considered argument about who should be sued,
what grounds they should be sued on, and what the appropriate remedy will be.

THE LEARNING OUTCOMES OF DELICT

1. Students must be able to consider the range of definitions of delict in the scholarship and
choose an appropriate option.

2. Students must be able to find and distinguish between the different sources of law that
regulate the discipline and be able to identify when different sources apply with
reference to the doctrine of adjudicative subsidiarity.

3. Students must be able to apply the relevant provisions of the Constitution, statutes, and
case law to an incident of dignity harm where reparations are sought.

4. Students must be able to apply the relevant provisions of the Constitution, statutes, and
case law to a set of facts related to an incident of property harm where reparations are
sought.

5. Students must be able to apply the relevant provisions of the Constitution, statutes, and
case law to a set of facts related to an incident of bodily harm where reparations are
sought.

6. Students must be able to calculate the appropriate award of damages in a delictual

lawsuit, whether for property harm or bodily integrity infringements.

7. Students must be able to identify the correct parties to a delict lawsuit and apply the
principles of vicarious liability to a set of facts.

8. Students must be able to solve complex problems by identifying, analysing, evaluating,

and critically reflecting on and addressing multi-layered delictual disputes.

9. Students must be able to solve complex problems by developing and applying theory-
driven and evidenced-based arguments and communicating such arguments using
appropriate academic and professional discourse, such as the legal
opinion/memorandum.

10. Students must be able to solve complex problems by recognising that it is context-
dependent which requires the ability to manage unfamiliar and variable contexts within
the frameworks of delict.

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 3. CONTACT DETAILS
COURSE COORDINATOR AND LECTURERS

COURSE COORDINATOR AND LECTURER SEMESTERS 1 AND 2

CJ VISSER (he/him)
Law Building Room 46
Office Telephone: (011) 717 8586
Email: [email protected]

SEMESTER 1 LECTURERS AND TEACHING SEMESTER 2 LECTURERS AND TEACHING

ASSISTANTS ASSISTANTS

SAMANTHA BARKLEY TO BE CONFIRMED

Lecturer Semester 1
Law Building Room 90
Office Telephone: (011) 717 8486
Email: [email protected]

Teaching assistants will be allocated in the first Teaching assistants will be allocated in the second
semester. Details will follow during the course of semester. Details will follow during the course of
the semester. the semester.

COURSE ADMINISTRATOR

VERONICA SETLHABI
Law Building Room 12
Office Telephone: (011) 717 8483
Email: [email protected]

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 4. CONTACT AND STUDY TIME
LECTURE MODALITY

Our blended approach:

In 2024, this course will be using a “blended approach” to teaching and learning. By blended we
mean that there are (1) some teaching and learning activities that will take place online, in your
own time, and (2) some in-person interactive sessions on campus. Both (1) and (2) are
compulsory.

Online content:
For each topic, students will be provided with online material that must be studied before the in-
person sessions. This content can take on the form of narrated PowerPoints, podcasts,
documents, and/or sources of law that need to be read. The aim of the online content is to
familiarise yourself with the basic subject matter of this course.

Face-to-face content:
After you have completed the online content for a specific topic, a live, face-to-face discussion
will take place where we will explore what you have learned online.

To this end, students will be divided into one of six lecture timeslots (on Ulwazi). Please note that
there will NOT be 3 in-person lectures per week. You will only attend ONE in-person session per
week.

During these lecture slots, face-to-face discussions will take place at a specific venue assigned to
that slot. This allows us to break the big class into many smaller groups that will allow for more
meaningful engagement and discussion. Those discussions will not involve a simply re-teaching of
the material. Instead, the lecturers will facilitate discussions based on problem questions, akin to
tutorial-style teaching.

SUB-MINIMUM CLASS ATTENDANCE:

THERE IS NO SUB-MINIMUM CLASS ATTENDANCE REQUIREMENT FOR THIS COURSE.

Consultation hours:
Each lecturer will communicate their consultation hours to students where one-on-one or small
groups may meet to discuss the course material. Consultations may take place in person or
online, at the lecturer’s discretion.

NO Tutorials:
Given that the face-to-face lectures will take on the form of interactive discussions, those are
essentially “tutorials”. No other tutorial system will run in 2024 for Delict.

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Preparation and study time:
Independent reading, analysis, and research are crucial skills for a legal professional. The
assumption is that you have prepared for the lectures by reading through the prescribed
readings and completing the relevant exercises before lectures.

Delict is weighted at 27 credits. This means that you should have 270 notional study hours
dedicated to this year-long course.

Practically, this means that you should be spending at least 9 hours per week on this course over
the period of 2 semesters (28 weeks). ONE hour out of the 9 hours will be spent on in-person
lectures. There will be approximately TWO hours of online content for you to engage with. This
leaves you with SIX notional hours of independent study, reading, and preparation for the in-
person sessions.

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 5. STUDY MATERIAL
PRESCRIBED MATERIAL

All prescribed work must be studied for all assessments. You will not be able to pass the course
without having studied the prescribed material.
 The prescribed textbook is: Zitzke (ed), Visser, & Samaradiwakera-Wijesundara The Law of
Injuries (2024).
 Please note that this is an open access online resource, which means that you will not pay
a single cent towards this textbook and don't have to buy a physical copy.
 The relevant parts of the book will be made available to you on Ulwazi. If you want to
print it out, that will be at your own expense.
 The prescribed textbook has the following important features:
o The textbook, read in conjunction with this course outline, will provide you with
the basic structure for each topic (that is, what are the main ideas, sub-ideas,
further detail, and how these fit together).
o The textbook indicates the prescribed readings/sources of law (that is, case law,
legislation, and academic commentaries) for each topic. Therefore, the prescribed
sources of law for each topic are indicated in the textbook and not in this course
outline.
o Where appropriate, the textbook will provide you with the context to these
prescribed sources and will indicate specific sections, pages, and paragraphs to
read together with guided instructions. Therefore, the textbook will not summarise
the prescribed sources of law.
o The textbook contains a series of exercises in the individual chapters for the
different topics. Some of these exercises will be self-study while some will be
discussed during class. The exercises that will be discussed during class will be
indicated on Ulwazi.
 The prescribed readings for each topic may be expanded or reduced and will be
announced during lectures or on Ulwazi.

RECOMMENDED MATERIAL

Recommended readings are in addition to prescribed reading and may broaden your
understanding of the course content. However, we caution students to follow the in-depth
reading plan in The Law of Injuries. It is unlikely that you will pass with course simply by repeating
the thoughts of any of the textbooks mentioned below.

For wider reading, students can also consult:

 Neethling & Potgieter Law of Delict 8 th Ed (2020).
 Fagan Aquilian Liability (2019).
 Loubser & Midgley The Law of Delict in South Africa 3 rd Ed (2018).
 Van der Walt & Midgley Principles of Delict (2016).

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 6. ASSESSMENT AND MARK CONTRIBUTIONS
SUMMARY OF ASSESSMENTS

Assessment Description Date Weighting:

Contribution
to final mark
(%)
Semester Online Formative Assessment: A Weekly as 5%
Exercises collection of online activities for indicated in the
1
Set 1 each topic, Chapters 1-5. semester schedule
Written Test 1 Summative Assessment: A Test Week: 8 – 12 10%
closed-book, sit-down, in-person April 2024
test covering Chapters 3-4.
Online Formative Assessment: A Weekly as 5%
Exercises collection of online activities for indicated in the
Set 2 each topic, Chapters 6-11. semester schedule
Written Test 2 Summative Assessment: A To be written 20%
closed-book, sit-down, in-person during the mid-
test covering Chapters 5-6. year examinations
Semester Online Formative Assessment: A Weekly as 5%
Exercises collection of online activities for indicated in the
2
Set 3 each topic, Chapters 12-13. semester schedule
Written Test 3 Summative Assessment: A Test Week: To be 20%
closed-book, sit-down, in-person confirmed
test covering Chapter 12.
Online Formative Assessment: A Weekly as 5%
Exercises Set 4 collection of online activities for indicated in the
each topic, Chapters 14-20. semester schedule
Exam Summative Assessment: A To be written 30%
closed-book, sit-down, in-person during the end-of-
exam covering Chapters 10-20. year examinations
FINAL MARK TOTAL: 100%

SUB-MINIMUM MARK:
THERE IS NO SUB-MINIMUM MARK REQUIRED FOR ANY COMPONENT IN THIS COURSE.
.

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 DEFERRED ASSESSMENTS:
SAVE FOR PERIODS OF EXCEPTIONAL CIRCUMSTANCES SUCH AS PROLONGED HOSPITALISATION, A
STUDENT MAY BE GRANTED A MAXIMUM OF TWO DEFERRED ASSESSMENTS PER YEAR ACROSS ALL
COURSES. IF AN APPLICATION FOR A DEFERRED IS NOT SUCCESSFUL, THE STUDENT WILL BE
AWARDED A ZERO FOR THE ASSESSMENT. PLEASE SEE THE SEMESTER PLANNER FOR DETAILS OF THE
POLICY AND THE APPLICATION PROCESS.

Additional information on the online exercises:

For every online exercise set, there will be five quizzes. To determine your weighted average for
a particular set of online exercises, the highest scores from four out of the five quizzes will be
considered. This means you can miss one quiz per set without any impact on your final mark.
Lastly, it's crucial to note that deferred quizzes will not be conducted.

Additional information on the written tests and the exam:

The primary emphasis of the written tests and the exam lies in legal problem-solving and
communication, which must manifest in the form of a legal opinion/memorandum.
Consequently, the overarching and broad assessment criteria that will be employed include,
among others, (1) the quality of the presented legal principles, (2) the calibre of legal application
in respect of the arguments developed, and (3) the excellence of the format of the legal
opinion/memorandum provided, along with its adherence to the prescribed style guidelines.

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 7. STUDY THEMES & OUTCOMES
To reach the exit-level outcomes, the following study themes and more specific outcomes must be
attained:

STUDY THEME 1: FOUNDATIONS

THE LAW OF INJURIES TEXTBOOK CHAPTERS:

 Chapter 1: Re-Defining Delict; and
 Chapter 2: Sources.

PRESCRIBED SOURCES OF LAW:

The prescribed sources of law for this study theme (i.e. case law, legislation, and journal articles) are
indicated in these individual chapters and not here in the course outline.

LEARNING OUTCOMES:
The main aim of this study theme is to introduce you to the concept of delict and its sources.

To this end, after completing this study theme you should be able to:
1.1 Describe how delict is traditionally defined.
1.2 Explain the historical roots of the South African law of delict, with a specific focus on the
“African tradition”, “Anglo-American/casuistic” and the “Continental/generalising”
approaches to the study of delict.
1.3 Evaluate and critique (in light of 1.1 and 1.2) whether the traditional definitions of delict are
suitable for South Africa today.
1.4 Discuss the underlying philosophy and the purposes of the modern South African law of
delict.
1.5 Recall the different sources of South African law, their respective weights, and where/how
to access these sources.
1.6 Understand and argue a case for a transformative approach to delict.
1.7 Understand and explain how the Constitution filters through the law of delict.

STUDY THEME 2: INJURIES TO DIGNITY

THE LAW OF INJURIES TEXTBOOK CHAPTERS:

 Chapter 3: The Right to Dignity;
 Chapter 4: Statutory Hate Speech;
 Chapter 5: Customary Law Defamation; and
 Chapter 6: Common Law Dignity.

PRESCRIBED SOURCES OF LAW:

The prescribed sources of law for this study theme (i.e. case law, legislation, and journal articles) are
indicated in these individual chapters and not here in the course outline.

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LEARNING OUTCOMES:
The main aim of this study theme is to introduce you to the basic rules, principles, and policy
considerations underlying “harms to dignity” in the South African law of delict.

To this end, after completing this study theme you should be able to:
2.1 Understand the constitutional idea and protection of dignity.
2.2 Explain the scope of statutory liability for dignity harm and apply relevant legislation to a set
of facts.
2.3 Identify, analyse, and apply the different substantive rules and values related to the
customary law of dignity harm and the remedies involved for different types of dignity harm.
2.4 As to the common law of damage to dignity: Identify, analyse, and apply the requirements
for liability for dignity infringements as well as accompanying defences and remedies.

STUDY THEME 3: INJURIES TO PROPERTY

THE LAW OF INJURIES TEXTBOOK CHAPTERS:

 Chapter 7: Property Rights;
 Chapter 8: Statutory Financial Loss;
 Chapter 9: Customary Property Injuries;
 Chapter 10: Aquilian Harm;
 Chapter 11: Aquilian Conduct;
 Chapter 12: Aquilian Fault;
 Chapter 13: Aquilian Wrongfulness;
 Chapter 14: Aquilian Causation; and
 Chapter 15: Aquilian Remedies.

PRESCRIBED SOURCES OF LAW:

The prescribed sources of law for this study theme (i.e. case law, legislation, and journal articles) are
indicated in these individual chapters and not here in the course outline.

LEARNING OUTCOMES:
The main aim of this study theme is to introduce you to the basic rules, principles, and policy
considerations underlying “patrimonial harm” or sometimes “damage to property” or “pecuniary
loss”, historically known as “Aquilian liability” in the South African law of delict.

To this end, after completing this study theme you should be able to:
3.1 Understand the constitutional protection of property.
3.2 Explain the scope of statutory liability for patrimonial harm and apply relevant legislation to
a set of facts.
3.3 Identify, analyse, and apply the different substantive and procedural rules related to the
customary law of patrimonial harm and the remedies involved for different types of
patrimonial harm.
3.4 As to the common law of damage to property:
3.4.1 Identify the type of harm to which the common law of damage to property relates.
3.4.2 Explain the types of conduct that can establish the delict of damage to property.

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3.4.3 Discuss and analyse the different rules, principles, and policy considerations underlying the
determination of fault in damage to property cases.
3.4.4 Discuss and analyse the different rules, principles, and policy considerations underlying the
determination of wrongfulness in damage to property cases.
3.4.5 Understand the difference between factual and legal causation as applied to damage to
property, and evaluate fervent critiques levelled against (and defences of) recent case law
on causation (in damage to property matters).
3.4.6 Identify, explain, and reflect on the different remedies available to a victim of damage to
property.

STUDY THEME 4: INJURIES TO THE BODY

THE LAW OF INJURIES TEXTBOOK CHAPTERS:

 Chapter 16: Bodily Integrity;
 Chapter 17: The Road Accident Fund; and
 Chapter 18: The Body @ Common Law.

PRESCRIBED SOURCES OF LAW:

The prescribed sources of law for this study theme (i.e. case law, legislation, and journal articles) are
indicated in these individual chapters and not here in the course outline.

LEARNING OUTCOMES:
The main aim of this study theme is to introduce you to the basic rules, principles, and policy
considerations underlying claims for “pain and suffering”.

To this end, after completing this study theme you should be able to:
4.1 Understand the constitutional protection of bodily integrity.
4.2 Explain the scope of statutory liability for bodily harm and apply relevant legislation to a set
of facts.
4.3 Identify, analyse, and apply the different substantive rules and values related to the
customary law of bodily harm and the remedies involved for different types of bodily harm.
4.4 Identify the types of harm to which the common-law delict of pain and suffering relates. You
must also understand and be able to apply that the common-law principles related to
conduct, causation, fault, and (certain parts of) wrongfulness already discussed under the
heading of damage to property can be transposed to the action for pain and suffering.
4.5 Identify, explain, and reflect on the computation of the quantum of damages awarded to
victims of pain and suffering.

STUDY THEME 5: LITIGATION

THE LAW OF INJURIES TEXTBOOK CHAPTERS:

 Chapter 19: Parties to Litigation; and
 Chapter 20: Litigation Strategy and Social Changes.

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PRESCRIBED SOURCES OF LAW:
The prescribed sources of law for this study theme (i.e. case law, legislation, and journal articles) are
indicated in these individual chapters and not here in the course outline.

LEARNING OUTCOMES:
The main aim of this study theme is to enlighten you about how one strategizes a delictual lawsuit.

To this end, after completing this study theme you should be able to:
5.1 Identify and explain the different types of plaintiffs/applicants in delict cases.
5.2 Identify and explain the different types of defendants/respondents in delict cases.
5.3 Identify and explain when there will be no title to sue or be sued.
5.4 Apply your knowledge obtained in this course to go about solving complex legal problems
with a strategic social justice angle.
5.5 Draft relevant court documents related to a delictual dispute. For action proceedings, you
should know how to draft a summons, particulars of claim, plea, counterclaim, replication,
and counterplea. For application proceedings, you should know how to draft a notice of
motion, affidavit, and answering affidavit. For both application and action proceedings, you
should know how to construct heads of argument and a legal opinion/memorandum.

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