Delictual remedies and joint wrongdoers

Question 1

Transmissibility of actions

Answer 1

Aquilian action: actively and passively heritable, and freely cedable. Litis contestatio has no effect.
* Actio iniuriarum and action for pain and suffering: actively and passively heritable only after litis contestatio
*The claim will lapse if the plaintiff or the defendant dies
before litis contestatio
* Claims are not cedable before litis contestatio

Question 2

Nkala v Harmony Gold Mining Company Ltd on the need for the development of
the common law to allow
for the transmissibility of actions for general (non-patrimonial) damage in the following terms

Answer 2

1. PLAINTIFF who had COMMENCED suing for GENERAL DAMAGES
   but who has DIED, whether arising from harm caused by a wrongful act or omission of a person or otherwise,
   and whose CLAIM HAS YET TO REACH the stage of litis contestatio
   and who would but for his/her death be ENTITILES TO MAINTAIN THE ACTION AND RECOVER the general damages in respect thereof
   will be entitled to CONTINUE with such action notwithstanding his/her death
2. person WHO WOULD HAVE BEEN LIABLE for the general damages if the DEATH OF THE PLAINTIFF had not ensued remains liable for the said general damages, notwithstanding the death of the plaintiff so harmed.
3. Such action shall be for the benefit of the person WHOSE DEATH HAS BEEN SO CAUSED
4. A DEFENDANT WHO DIES while an action against him has commenced for general damages arising from
   harm caused by his wrongful act or omission, and WHOSE CASE HAS YET TO REACH the stage of litis contestatio
   REMAINS LIABLE for the said general damages, notwithstanding his death, and the ESTATE OF THE DEFENDANT shall continue to bear the liability, despite the death of the defendant

Question 3

Minority judgement in Nkala v Harmony Gold Mining Company Ltd

Answer 3

The facts are sufficient to justify the
development of the common law regarding the transmissibility of actions IN REALTION TO CLASS ACTIONS
Excluding class actions, the status quo should be retained with regard to all other cases actionable under the action for pain and suffering

Question 4

an interdict

Answer 4

A legal remedy that does not aim at compensation but aims
To avert an impending wrongful act or stop the continuation of a wrongful act that has already commenced

Question 5

Types of interdicts

Answer 5

Prohibitory = stop something from happening before it even happens
Mandatory= stop the continuation of a wrongful act

Question 6

Function of an interdict

Answer 6

Has a preventative function, not retributory

which excludes FAULT as a requirement for the remedy

Question 7

Requirement for applyingan interdict as a remedy

Answer 7

1. There must be an act by the respondent
   (can be commissio or ommssio)
2. The act must be wrongful (there must be a threat to or an infringement of a so-called “clear right” or a “liquide regt” of the applicant
   *this does not imply, however, that in cases where such a right is absent, wrongfulness in respect of the interdict cannot also lie in the breach of a legal duty
3. No other remedy must be available to the applicant
   *may either be final or pendente lite (temporary)
   (BY USING INREDICT YOU ARE SACRIFICING OTHER REMEDIES)

Question 8

Concurrence of remedies

Answer 8

When an act results in various different claims that give way to different remedies

can be similar (only delictual) or dissimilar (delictual and contractual)

an act from which only one or more claims arise but which offers a choice between
different remedies, results in alternative remedies

Question 9

Concurrence actio legis Aquiliae and the actio iniuriarum

Answer 9

This is where iniuria results in patrrimonial loss
eg assault resulting in medical expenses (decrease in estate worth)
defamation results in loss of clients (loss of income)

plaintiff must then institute the ACTIO INUARIUM FOR SATISFACTION and the AQUILIAN ACTION FOR DAMAGES.

He must, therefore, clearly set out in his pleadings the facts
that are necessary to found both actions.

Question 10

Concurrence between actio legis Aquiliae + the action for pain and suffering

Answer 10

takes place where a culpable infringement of physical-mental integrity causes patrimonial damage

e.g Motor accident(bodily injury) causing medical expenses
Or an event that leads plaintiff’s metal infringement therefore obstructing them from going to work and earning an income

plaintiff must then claim damages for patrimonial loss under the Aquilian action
and compensation under the action for pain and suffering. Consequently, he must clearly set out
in his pleadings the facts necessary to found both actions.

Question 11

Concurrence of the actio iniuriarum + action for pain and suffering.

Answer 11

Van der Merwe and Olivier these two actions cannot concur

They argue that in the case of assault (intentional bodily infringement), the action for pain and suffering loses its meaning and is replaced by the actio iniuriarum, with which full compensation (also for pain, suffering, et cetera) may be claimed (VIEW CANNOT BE ACCEPTED)

Both actions are thus in principle available for a wrongful and intentional infringement
of physical-mental integrity.
in principle, a distinction is made between satisfaction for contumelia (iniuria) and compensation for physical pain and suffering.

Question 12

Concurrence of actio iniurium and contractual action

Answer 12

The actio iniuriarum and the contractual action concur in circumstances where breach of contract also constitutes an iniuria against the wronged contracting party.

Iluustrated by refernce to breach of promise

There is uncertainty on the question of whether breach of promise itself is per se an iniuria, or whether it only becomes one if the innocent party suffers an actionable infringement of his personality.

Question 13

Ndamse v University College of Fort Hare on BOC related to dismissal from employment and inuria

Answer 13

The court stated that a wrongful dismissal from employment (breach of contract) is not in itself an iniuria, but that “the manner of a wrongful dismissal may constitute an iniuria”;

in which case “the plaintiff must set out facts, other than the mere fact of dismissal, which constitute an iniuria

Question 14

Guggenheim v Rosenbaum: breach of promise to marry (actio inuaria and contact actions)

Answer 14

Judge says that breach of promise is not per se an iniuria
It will only constitute an iniuria if the plaintiff proves ‘not merely that the breach was wrongful, but also that it was injurious or contumelious.’

Question 15

Concurrence between action for pain and suffering and contractual action

Answer 15

The action for pain and suffering and the contractual action concur in circumstances where breach of contract also results in a wrongful and culpable infringement of the physical-mental integrity of the wronged contracting party.

e.g a patient is operated on, ito a contract, by a surgeon who operates negligently and the patient’s health suffers a setback. The patient then has a contractual action for damages, as well as the action for pain and suffering for compensation.

Question 16

Case law on concurrence between contractual action and action for pain and suffereing

Answer 16

Van der Merwe and Olivier;
2 independent actions are involved, each with its requirements and purpose, they may co-exist and be instituted simultaneously.

This viewpoint is also apparent from the decision in Administrator, Natal v Edouard; court held that compensation for pain and suffering experienced as a result of breach of contract cannot be claimed with the contractual action;
for this purpose, the delictual action for pain and suffering must be employed

Question 17

Concurrance between Aquillian action and contractual action

Answer 17

concur in circumstances where breach of contract simultaneously also constitutes the delict damnum iniuria datum (a wrongful culpable causing of patrimonial damage) against the wronged contracting party.

Emphasised that the actio legis Aquiliae is only available alongside the contractual action if the conduct complained of, apart from breach of contract, also wrongfully and culpably infringes a legally recognised interest which exists independently of the contract, such as a thing or a personality interest

Question 18

Lillicrap, Wassenaar & Partners v Pilkington Brothers Court on the exclusion of contractual actions and reliability of delictual remedies

Answer 18

acknowledged the possibility of a concurrence of actions, no occurrence was present in casu (contractual actions) because the plaintiff had forfeited his contractual claim after transferring his contractual rights & duties to a 3rd party

P could rely on delictual action based on negligent misrepresentation
*here the pivotal question was “whether the breach of a contractual duty to perform professional work with due diligence is per se a wrongful act for the purposes of Aquilian liability,
with the corollary (consequence) that if the breach were negligent, damages could be claimed ex delicto (as a consequence of a wrong/crime).

Court answered in negative and held delictual liability had to be established independently of the contract

Court found that Aquilian liability shouldn’t be extended to the relevant situation, primarily on account of the policy consideration “that the position of the parties had been determined by contractual provisions that the parties themselves had preferred & which they had expected to be applicable.

Question 19

Factors that play a role in determining the prejudiced party’s choice of whether to claim ex contractu or ex lege Aquilia

Answer 19

1. The EXTENT OF DAMAGES RECOVERABLE may differ because different measures limiting liability apply
2. The TIME FOR THE COMPUTATION (calculation) of damages in the two instances differs
3. The REQUIREMENTS FOR THE CAPACITY of persons for the two types of liability are such that, in a given case, a person may “qualify” for delictual liability but not for liability for breach of contract
4. The liability of JOINT delictual wrongdoers differs from that of joint parties to a contract
5. VICARIOUS LIABILITY differs in the two instances insofar as it may be more extensive in the case of delict than for breach of contract
   contract
6. UNILATERAL WAIVER of his rights by a prejudiced party may extinguish the (possible) liability of a delictual wrongdoer, as is the case with consent, whereas unilateral waiver of a contractual right to performance cannot extinguish the other contracting party’s obligation to perform.
7. A CONTRACTUAL TERM EXCLUDING OR LIMITING LIABILITY may, depending on the interpretation thereof, apply only to contractual liability. A PENALTY CLAUSE will also probably not apply to delictual liability
8. CONTRIBUTORY NEGLIGENCE may only be raised against a delictual claim

9.The ONUS OF PROOF may differ in respect of contractual and delictual claim

10.Different courts may have JURISDICTION in claims for delict and breach of contract respectively

11. The RULES OF PRIVATE INTERNATIONAL LAW OR CONFLICT OF LAWS differ in respect of these two types of claims

Question 20

Exclusion clauses

and what it depends on+impact

Answer 20

clauses that allow parties to restrict their liabilities both contractually and delictually

The restriction on wrongdoer’s liability is dependent on the interpretation of the clause and such interpretation will influence the question of what remedies the prejudiced party has at his disposal.

Question 21

Cases on exclusion clauses

Answer 21

Van der Walt & Midgley, the courts follow a strict and limiting approach: the exclusion of liability must be formulated clearly and unambiguously (“plainly”) to be enforceable.

Swinburne v Newbee Investments (Pty) Ltd 2010 the court pointed out that if the language of a disclaimer or exemption clause is such that it exempts the proferens (person who instituted the claim) from liability in express and unambiguous terms, effect is to be given to that meaning, but, if the language is ambiguous, it is to be construed against the proferens.

The opinion of a reasonable person is important in the interpretation of an exclusion clause

Question 22

illustrations in cases of Exclusionary clause

Answer 22

The application of these principles can be illustrated by the following examples: In Stott the plaintiff’s husband was fatally struck by lightning on a golf course. The court held that a provision excluding liability of the golf club for “personal injuries or harm howsoever caused” to members and their children and guests, did not exclude the action of dependants and a claim for funeral expenses.

In Durban’s Water Wonderland, the plaintiff and her young daughter were injured when they fell during a “jet ride”. The court had to answer three questions, two of which are relevant here: whether an exclusion clause in a notice on the window of the ticket office formed part of the contract regulating use of the amusement park; and whether the notice also excluded liability based on negligence. The court answered both question affirmatively, and the defendant accordingly escaped liability.

Question 23

Minister of Education and Culture (House of Delegates) v Azal 1995 on exclusion clauses in schools

Answer 23

he court concluded that a clause which limited the liability of the school as against the parents for damage to property or the personal injury of children in respect of certain school activities, did not cover negligence on the part of the teachers. It has been decided that a voetstoots clause only excluded contractual liability and not delictual liability

Question 24

In Freddy Hirsch Group (Pty) Ltd v Chickenland (Pty) Ltd 2011 on relation of exclusion clause to public policy

Answer 24

held that the exclusion clause that purported to exclude all statutory and common law terms, warranties or representations as to the quality or fitness of foodstuff, was contrary to public policy and unenforceable.

Question 25

Stott ( also Afrox Healthcare Bpk v Strydom 2002 6 SA 21 (SCA)) on exclusion of liability in case of negligent homocide

Answer 25

left open the question of whether exclusion of liability for damages in the case of negligent homicide conflicted with the high value placed on the inviolability of human life by the BoR.

Question 26

Prescription of remedies

Answer 26

Delictual debt prescribes three years after it originated according to the Prescription Act 68 of 1969.
Prescription commences as soon as debt is due and occurs from the moment all elements of delict are present
*provided that the creditor knows the identity of wrongdoer and facts from which debt arises.
But a creditor shall be deemed to have such knowledge if he could have acquired it by reasonable care.
*The ending of prescription may be suspended or interrupted.

♦NB, unlike its predecessor, the Prescription Act creates a strong prescription (obligation or personal right is extinguished). In the case of weak prescription, the action/remedy is extinguished while the obligation/ personal right remains