Forms of inuaria

Question 1

Iniuria per consequentias

Answer 1

At common law, the position was that an iniuria could not only affect a person directly, but also indirectly through other people. This

indirect iniuria arose in connection with three relationships, ie between
HUSBAND AND WIFE
FATHER AND CHILD
TESTATOR AND HEIR
.

Question 2

Application of aniuria per consequentia in our positive law

Answer 2

According to Meyer v Van Niekerk

the person involved in a particular relationship is not automatically affected by the “indirect” iniuria.

He will only be able to succeed with an action if his personality has been infringed.

Question 3

Diffrence between personality rights afforded to children and those afforded to adults

Answer 3

Children are affordeed further protection as a result of the special protection of children in section 28 of the Constitution, 1996.

Section 28(2) reads as follows: “A child’s best interests are of paramount importance in EVERY MATTER concerning the child.”

As far as personality rights are concerned, our courts and the legislator have upheld the rights to bodily and psychological integrity, dignity, privacy and physical freedom.

Question 4

Personality rights of state prisoners

Answer 4

The point of departure for the protection of the
personality rights of prisoners in our law is that, apart from the fact that their right to liberty has
been restricted by their imprisonment, prisoners have all other personality rights at their disposal
– the so-called RESIDUUM PRINCIPLE – and is entitled to the protection thereof except where a
right has been taken away from them by law, expressly or by implication

the INVERSE PRINCIPLE currently applies, namely that PRISONS RETAIN ALL PERSONALITY RIGHTS rights, except those they are denied by law. Personality rights of prisoners that already enjoy recognition and protection are the rights to bodily freedom, physical-psychological integrity and privacy, as well
as the fundamental right to human dignity

Question 5

Inuaria ito Personality infringement and patrimonial damage

Answer 5

An iniuria primarily infringes a personality interest of another, but it often causes patrimonial damage as well.

In principle, the prejudiced person must then institute two actions: the actio iniuriarum for satisfaction (solatium) and the actio legis Aquiliae for patrimonial damages.

Question 6

Media 24 Ltd v SA Taxi Securitisation on Inuaria ito Personality infringement and patrimonial damage (NB)

Answer 6

Although there was uncertainty in the past regarding this matter, it has been confirmed in Media 24 Ltd v SA Taxi Securitisation that in instances of the defamation of a corporation, patrimonial (special) damages must be claimed with the Aquilian action whilst non-patrimonial (general) damages must be claimed with the actio iniuriarum

Question 7

Inuaria ito Personality rights of juristic persons.

Answer 7

Before the decision of the AD in Dhlomo v Natal Newspapers (Pty) Ltd, various decisions supported the view that, unlike a natural person, a juristic person or universitas (for example, a company, undertaking or university) has no personality rights (including the right to good name).

By contrast, numerous decisions recognised that a trading corporation may sue
on the ground of defamation if the allegations objected to “[were] calculated to injure its business reputation, or to affect the trade or business which it was formed to carry on”.

In such cases, damages are awarded without proof of actual loss.

Question 8

Dhlomo v Natal Newspapers (Pty) Ltd 1989

Answer 8

FACTS
claim instituted by Dr O Dhlomo on behalf of jurstic person Y.
The first defendant in the action (the first respondent in the appeal) was the proprietor, publisher and printer of the newspaper, The Sunday Tribune.
The second defendant was the editor of the newspaper. Newspaper article published in 1986 involving Y.
Plaintiff alleged the article was defamatory of Inkatha; that the ‘reputation, dignity and esteem of Inkatha and its ability to promote and further its aims and objects’ had been ‘impaired and injured’ by the defamatory article, and that Y had suffered damages in the amount of R20 000.

LQ; Does a juristic person or universitas have personality rights? Yes.

Ratio; Juristic persons have right to fama. Trading corporation has right to sue for defamation to business reputation. A non-trading corporation could be defamed and could sue for defamation if a defamatory statement concerning the way it conducted its affairs was calculated to cause it financial prejudice

Question 9

AD in GA Fichardt Ltd v The friend Newspaper

Answer 9

adopted view that damages are awarded without proof of actual loss. mainly on the ground “that it would be unrealistic not to hold that the law as stated by this Court in Fichardt’s case more than seventy years ago has become the law of South Africa. I accordingly so hold”

Question 10

Traditional view of application of actio inuarium to juristic persons and how this has changed

Answer 10

Traditionally, it is accepted that the function of the actio iniuriarum lies in the provision of solatium (solace money) or satisfaction (sentimental damages) for the salving of the injured personality (sentimental loss or injured feelings).

Point of departure means that the actio iniuriarum is not available to the juristic person, which has “no feelings to outrage or offend”.

In reality, exceptions to this general principle have already occurred in common law. Furthermore, it seems that the fact that an injury to personality can exist without injured feelings, and that there is already a trend in case law to award compensation for such an injury to natural persons provide a good basis for making the actio iniuriarum available in the case of the defamation of a juristic person

Question 11

Alternative remedies for the defamation of a corporation

Answer 11

These may be more appropriate than an award of (sentimental) damages.

Alternative remedies are indeed available or could be developed in our law.
The fact that the actio iniuriarum, aimed at solatium for injured feelings, is not a suitable remedy to address the infringement of the reputation of corporations provides a good reason for changing the status quo by discarding the actio iniuriarum in respect of corporations.
Recognition by the courts of the juristic person’s personality right to fama can be fully supported.

Question 12

Can the protection of the juristic person be extended to the other recognised interests of the natural person ie, body, physical liberty, feelings, honour, privacy and identity,

Answer 12

the fact that an infringement of honour (dignity) and feelings lies exclusively in injury to the feelings, and a juristic person does not have feelings that can be hurt, the recognition
and protection of these interests of personality are likewise impossible in the case of the juristic person.

Also evident from case law.
In the cases of privacy and identity, an injury to personality can exist without an injury to feelings. Privacy and identity can indeed also be violated without the injured person being conscious thereof.
A remedy should therefore also be available for infringement of the privacy or identity of the jurisric person.

To summarise, the confirmation by the AD of the principle that a juristic person can be defamed and is entitled to a remedy, is not only realistic but is also in conformity with the practical demands of a modern society; furthermore, it is also theoretically and constitutionally justified.

Apart from this recognition of the personality right to a good name and also of the right to privacy, personality rights of juristic persons should for obvious reasons only be extended to the right to identity

Question 13

Financial Mail (Pty) Ltd v Sage Holdings Ltd 1993
on wrongfulness of defamatory information

Answer 13

FACTS
respondents are a public company that launched urgent applications seeking interdicts restraining appellants from publishing an article in Financial Mail. Article based on defamatory info unlawfully obtained.

LQ
Was the use of the unlawfully obtained information in the article wrongful? Court held yes

Question 14

Forms of physical infringement

Answer 14

Physical infringements may occur with/without violence and with/without pain. Even an infringement of the senses, whereby a physical feeling of disgust, discomfort or repugnance is caused, is included.

Psychological harm, by contrast, occurs mostly as a result of fear or emotional shock.

Question 15

Rights relating to physical integrity

Answer 15

The right to corpus/body
Seduction

Question 16

Requirements for establishing liability under actio inuarium

Answer 16

The bodily infringement need not be accompanied by contumelia (abuse) in the sense of insult.

The following requirements must be present: 1)the infringement must not be trivial (de minimis non curat lex);
2)it must be wrongful; and it must be committed animo iniuriand.
3)Wrt wrongfulness; given that the corpus is regarded as being one of man’s most valuable legal interests, every factual infringement of the physical-mental body is in principle per se contra bonos mores or wrongful.

Question 17

Exceptions to requirements for establishing liability under actio inuarium

Answer 17

Factual infringements of the corpus through conduct that corresponds to the demands of modern society, or through omission are, for example, not per se wrongful. Moreover, a justified violation of the body is naturally also lawful.

Question 18

What is seduction

Answer 18

The extramarital defloration of a girl with her consent

Question 19

Two requirements for action for seduction to succeed

Answer 19

Firstly, there must be a physical defloration of the girl.
Secondly, the defloration must have occurred as a result of the man’s seductive conduct (he must have overcome the girl’s opposition to the girl’s advances)

Question 20

When does a girl lose her right to claim for seduction

Answer 20

1. Where seductive consent is absent (if the girl was the seducing party)
2. If she continues the intimate relationship with the man after seduction

Question 21

Exceptional circumstances where girl may still institute actio inuarium

Answer 21

a) If she had sexual intercourse with/ married someone else other than the seducer after the seduction
b)If she was aware of the man’s marital status
c)If she accepted gifts from him

Question 22

Common law position on choices of the man to as a way of avoiding delictual action

current position of law?

Answer 22

Common law: the man had the choice either of paying the girl compensation or marrying her.

Presently, it is uncertain whether the man may defend himself against a claim for compensation by making a bona fide offer to marry the girl.

Question 23

Critics against seduction as action

Answer 23

Element of seduction is that the seduced girl gave her consent to sexual intercourse. Consent, therefore, does not exclude the wrongfulness of the man’s act. This state of affairs perplexes writers. McKerron thinks that the action for seduction is SUI GENERIS (distinctive) since an iniuria is lacking as a result of the girl’s consent.

Van der Merwe and Olivier see the action as an ANOMALY (deviating from normal standard) that is not only in conflict with the principles of consent to injury, but for which there is also, viewed from a legal policy point of view, no justification in modern law.

De Groot (followed by Van den Heever) and Joubert hold the view that the virgin’s consent is invalid, either “om der vrouwen zwakheid”, or as a result of the man’s seductive behaviour. Authors view concerning seduction is that one is dealing neither with an action sui generis, nor with an anomaly. Seduction is a form of iniuria where all the normal principles apply. consent of the girl is invalid in the circumstances, not because of her “weakness” or the seductive conduct of the man, but simply because such consent is regarded as invalid according to the legal convictions of the community/ boni mores.

Question 24

General form of physical liberty

Answer 24

is protected not only against the total deprivation of liberty but also against any limitation of a person’s freedom of movement or action.

Question 25

Right to libertas/physical liberty

Question 26

Requirements for limitations of persons freedom...

Answer 26

Such limitation must be certain that there was a “physical means of obstruction” or at least that “a person was being subjected to physical control” (even if only verbally). As in the case of bodily integrity, any unjustified interference with physical liberty is as a rule wrongful and an actionable iniuria, provided that it was committed animo iniuriandi and was not of a trivial nature.

Question 27

Wrongful deprivation of liberty: Wrongful arrest/ wrongful detention

Answer 27

consists in a person being deprived of his physical freedom without justification. Judged objectively. (Reasonable person must think that they are being held against their will) However, a person need not be aware of the fact that he is being deprived of his liberty for the personality infringement to be present. The deprivation of liberty is in itself an independent infringement and in principle, therefore, constitutes an iniuria.

Question 28

How can a plaintiff succeed in an action based on wrongful deprivation of liberty

Answer 28

Plaintiff must prove that the defendant himself, or a person acting as his agent or servant, deprived him of his liberty.

Question 29

Exception to general rule that INTERFERENCE WITH LIBERTY IS PRIMA FACIE WRONGFUL

Answer 29

Those forms of deprivation of liberty which are normal in contemporary society and therefore cannot be considered as contra bonos mores.

Question 30

Animus iniuriandi (Intent) as a requirement for wrongful deprivation of liberty

Answer 30

the courts, under the influence of English law, have simply ignored this requirement, and neither intent nor negligence is necessary to found liability. Therefore, one is dealing with a form of liability without fault. Since consciousness of wrongfulness (as a necessary element of intent) is not required for liability, the defendant cannot plead mistake as a ground excluding fault

Question 31

malicious deprivation of liberty Factors

Answer 31

1. The result complained of must have been caused without justification by the defendant himself or some person acting as his agent or servant 2. the conduct in the case of malicious deprivation of liberty takes place under the guise of a valid judicial process 3. The defendant makes improper use of the legal machinery of the state, either through a policeman acting on his discretion or through a valid warrant, in depriving the plaintiff of his liberty. 4. The actual deprivation of liberty is consequently not carried out by the defendant himself or by his servant or agent, but by the machinery of the state through a valid judicial process

Question 32

Factors that the plaintiff will have to prove to succeeed in an action based on malicious deprivation of liberty

Answer 32

(1) that the defendant instigated the deprivation of liberty (2) that the instigation was without reasonable and probable cause (3) and that the defendant acted animo iniuriandi. These requirements are similar to those for malicious prosecution.

Question 33

what is the requirement is a criminal prosecution results from deprivation of liberty

Answer 33

The plaintiff will also have to prove that the prosecution failed before he will be able to succeed in an action based on the malicious deprivation of liberty

Question 34

Requirements for succeeding with a an action on the ground of malicious prosecution

Answer 34

1. Instigation 2. Without reasonable/probable cause 3. Animus inurandi 4. Fault

Question 35

Instigation

Answer 35

Instigation is present only if the prosecution resulted from the defendant's actions. Depends on circumstances of each case. Defendant will have to do more than comply with general obligation to give bona fide information to the police. Also gives active assistance and identifies himself personally with the prosecution, or lays a definite charge against the plaintiff, or even withholds essential relevant facts when furnishing information to the police, there will be strong indications of instigation.

Question 36

When is reasonable/probable cause absent for the prosecution?

Answer 36

(i) if there are, from an objective viewpoint, no reasonable grounds for the prosecution, or (ii) if, where such grounds are present, the defendant does not, viewed subjectively, believe in the plaintiff's guilt.

Question 37

Under what condition will the defendant be aquitted?

Answer 37

if, on the one hand, there existed reasonable grounds for the prosecution and, on the other , he also believed in the plaintiff's guilt.

Question 38

How will the question of whether reasonable grounds exist be answered?

Answer 38

(i) The question of whether reasonable grounds exist may only be answered by reference to the facts of each particular case. Facts must then reasonably, or according to the reasonable person, indicate that the plaintiff probably committed the crime. Adopted from English law but can be reconciled with SA legal principles on following basis: 1st requirement is sensible from a policy point of view; 2nd not unique to English law, since Roman-Dutch writers also mention 3rd it is connected with the element of wrongfulness for iniuria as a delict. Criterion of reasonableness is used. The factual infringement of the interests of personality (especially good name and dignity) of a person as a result of his criminal prosecution is justified (thus reasonable) because of the

Question 39

ii) The subjective belief of the defendant in the guilt of the plaintiff as a necessary element for the existence of reasonable and probable cause.

Answer 39

The fact that, despite the existence of reasonable grounds justifying the prosecution, the defendant did not believe in the plaintiff's guilt necessitates the conclusion that he knew or realised that the plaintiff was innocent. On what other grounds could he not believe in the guilt of the plaintiff? The existence of reasonable grounds indicates precisely that the plaintiff in all probability committed the offence. The defendant's knowledge or realisation of the plaintiff's innocence inevitably leads to the conclusion that, seen from the defendant's point of view, there were no grounds for prosecution and that he instigated the prosecution solely on the ground of an improper motive or animo nocendi. Seen in this light, the defendant's action is indeed unreasonable and consequently unlawful. Hence, the approach adopted by the courts may be fully sipported

Question 40

Animus inuariandi

Answer 40

Although, under the influence of English law, most cases required that the defendant should have acted with malice, it may be accepted in light of authoritative dicta of the AD that animus iniuriandi, and not malice, is required for malicious prosecution in our law. There is nevertheless case law in which animus iniuriandi was replaced with gross negligence

Question 41

Failure

Answer 41

The requirement that the prosecution must have failed is self-evident. A refusal of the attorney-general to prosecute is also considered a failure of the prosecution.

Question 42

How is attachment to some else's property

Answer 42

it primarily infringes the good name of the person involved

Question 43

Difference between malicious attatchment to property and wrongful attatchemnt to property

Answer 43

Malicious attachment. Given that malicious attachment is undertaken under the guise of a valid judicial process, the defendant prima facie acts lawfully. Thus, the defendant may only be liable if he instigated the legal process animo iniuriandi and without reasonable and probable cause.¸ Wrongful attachment. A defendant who, without any justification or judicial authority whatsoever, attaches the plaintiff’s property, is liable without further

Question 44

Fault for purposes of attachment to property

Answer 44

Fault (intent or negligence) is unnecessary to found liability – thus this is a case of liability without fault under the actio iniuriarum. A causal link must nevertheless exist between the attachment of the plaintiff’s property and his damage.

Question 45

Whats the right to diginity

Answer 45

Recognised in our law as an independent personality right within the concept of dignitas. A person’s dignity embraces his subjective feelings of dignity or self-respect.

Question 46

What constitutes infringement of person's right to dignity

Answer 46

Infringement of a person’s dignity accordingly consists of insulting that person. Number of ways to insult someone; any insulting words or belittling or contemptuous behaviour may be included.

Question 47

Difference between dignity and defamation

Answer 47

One is concerned with a person’s opinion of himself and not with the opinion of others, as is the case with defamation, publication of the insulting behaviour to third persons is unnecessary to constitute an iniuria; publication to the plaintiff alone is sufficient

Question 48

Requirement for claim to institute violation of right to dignity

Answer 48

Classified as wrongful; the behaviour must not only infringe the subjective feelings of dignity (factual infringement of a legal object), but must at the same time also be contra bonos mores (violation of a legal norm). Regarding the latter, “the notional understanding and reaction of a person of ordinary intelligence and sensibilities” are of paramount importance. Reasonable person.. a presumption of wrongfulness arises, which the defendant may rebut by proving the existence of a ground of justification for his conduct. oIf he does not succeed in doing this, wrongfulness is certain and a presumption of animus iniuriandi arises. The onus is then on the defendant to rebut this presumption by proving a ground excluding intent. If he fails to do this, an iniuria is proved

Question 49

Procedure for action against right to dignity

Answer 49

1. Plaintiff must prove that he feels insulted in circumstances where the reasonable person would have also felt insulted 2. Rebuttable presumption of wrongfulness 3. Defendant can rebut by showing grounds of justification 4. If rebuttal fails, wrongfulness is certain and presumption of animus iniuriandi is made 5. Defendant must rebut presumption of animus iniuriandi by proving a ground excluding intent 6. If they can’t iniuria is proved

Question 50

Grounds for justification (right to dignity)

Answer 50

* Privilege * Truth and public interest * Media privilege * Fair comment * Private defence * Necessity * Power of chastisement of parents * Statutory or official capacity * Consent

Question 51

what is privacy

Answer 51

Privacy is an individual condition of life characterised by seclusion from the public and publicity, the extent of which is determined by the individual himself.

Question 52

What does privacy imply?

Answer 52

Implies an absence of acquaintance with the individual or his personal affairs in this state

Question 53

Two ways unauthorised acquaintance by outsiders with the individual or his personal affairs. (infringement of privacy)

Answer 53

1st , Intrusion-when the outsider acquaints himself with the individual or the individual's personal affairs 2nd , Disclosure- when an outsider acquaints a third party with the individual or the individual's personal affairs

Question 54

How is the infringement of privacy tested?

Answer 54

ito a general test i.e bonu mores

Question 55

Court proceeding ito infringement of privacy

Answer 55

If WRONGFULNESS has been established, as in the case of insult, a presumption of ANIMUS INUARIANDI arises, which may be REBUTTED by the defendant. If he fails to do this, the actio iniuriarum is available to the plaintiff

Question 56

NM v Smith (Freedom of Expression Institute as amicus curiae) (PRIVACY)

Answer 56

Facts; biography of Ms Patricia de Lille was published by New Africa Books (Pty) Ltd. 3 women’s names were mentioned and HIV status disclosed. They alleged that their names had been published in the book without their prior consent having been obtained. The 3 women claimed that their rights to privacy, dignity and psychological integrity had been violated. oLQ; Whether the common law of privacy should be developed to impose liability on those who negligently publish confidential information? Court held no. oRatio; publication by the respondents of the HIV status of the applicants’ constituted a wrongful publication of a private fact and so the applicants’ right to privacy was breached by the respondents. oSide note by lecturer; unless overwhelming public interest points the other way, publishers should refrain from circulating information identifying the HIV status of named individuals, unless they have the clearest possible proof of consent to publication having been given, or that the information is in the broad public domain.

Question 57

Right to identity

Answer 57

Grutter v Lombard. Identity is that uniqueness which identifies each person as a particular individual and as such distinguishes him from others.

Question 58

how does right to identity manifests itself?

Answer 58

Identity manifests itself in various indicia by which the person involved can be recognised: ie, facets of his personality which are distinctive of or peculiar to him, for example, his life Identity is thus infringed if indicia thereof are used in a way that does not reflect the person’s true (own) personality image.

Question 59

What are the forms of identity infringement which have been developed into two independent torts in American law?

Answer 59

1.The public falsification of the personality image ("false light tort") 2.The economic misappropriation of identity indicia (especially for advertising purposes) ("appropriation tort"). The element of animus iniuriandi must be dealt with in the same manner as in the cases of infringement of dignity and invasion of privacy.

Question 60

Significance of these torts

Answer 60

These "torts" can serve as guidelines for the development of infringement of identity as an iniuria and have been considered by our courts, although sometimes under the guise of protection of privacy.

Question 61

Determining the wrongfulness of the infringement of identity

Answer 61

The boni mores are, still of prime importance as the general criterion for determining wrongfulness in this instance. Naturally, wrongfulness is excluded if a ground of justification is present.

Question 62

Grutter v Lombard 2007 (right to identity)

Answer 62

oFacts; Mr Grütter (the appellant) and Mr Lombard (the first respondent) practiced together as attorneys, ‘Grütter and Lombard’ Grütter terminated his agreement with Lombard and began practising under the name ‘Grütter and Grobbelaar’. Grütter asked Lombard to stop using the name ‘Grütter’ in the description of his practice but Lombard refused. Grütter applied to the HC for an order prohibiting him from doing so .oLQ; Is personal identity capable and deserving of legal protection? Court held yes. oRatio; recognition and protection of the fama under human dignity has the important implication that the right to good name is recognised as an entrenched human right, and that all other personality rights which are (like the good name) no mentioned in the Bill of Rights can in the same manner be protected under the human dignity.

Question 63

The right to feelings

Answer 63

A person has a wide variety of other spiritual-moral feelings or inner perceptions on matters such as love, faith, sentiment and chastity. Few indications at common law and in case law of the protection of feelings as an independent personality interest.

Question 64

RH v DE 2014 (Right to feelings)

Answer 64

oFacts; The plaintiff’s cause of action was that the defendant had committed adultery with the plaintiff’s wife. oLQ; Can damages be awarded for the loss of right to feelings(contumelia) and loss of consortium? Court held yes

Question 65

Breach of promise:

Answer 65

Defined as an unlawful breach of a promise to marry. May constitute and inuria to an innocent party if the innocent party suffers an actio inuria. Feelings of a good name, dignity and piety. Normally instituted by female counterpart. (Out dated delict…) Can a man institute this action against a woman? Court case held men do not feel the same when a woman breaks an engagement (old case & sexist). (What about same-sex couples?) Doesn’t fit in modern law of delict…

Question 66

Adultery:

Answer 66

RH v DE case. Voluntary sexual intercourse between a married person and someone other than their spouse. Leaves a lot of debate open, emotional affair? In Roman-Dutch law constitutes inuria. Actions brought against 3rd party. Infringed feelings piety, dignity. No longer matters as SCA ruled this is against the 3rd parties’ constitutional rights. Court abolished adultery as ground of action but plaintiff is allowed action against defendant against infringement of feelings

Question 67

Abduction, enticement and harbouring:

Answer 67

All constitute actions of consortium. Abduction is the taking away of a spouse by a 3rd party without his/her consent, crime under criminal law, can claim civil damages on loss of consortium. Harbouring means giving accommodation to a spouse who left the matrimonial home against the will of the other spouse (what if spouse who left due to abuse? Would it be actionable in modern law?) Enticement occurs when 3rd person uses persuasion or inducement to leave the matrimonial home. Court have seldom expressed themselves in all 3, if this constitutes an inuria. All 3 delicts are in principle inuria, thus actionable under actio iniuriarum