CHAPTER 1 - INTRODUCTION

Share

Definition of a delict

The word “delict” is derived from the Latin word delictum, meaning a wrong. In England and America the term used for what we call a delict is a tort. The word “tort” is also derived from a Latin word, namely, tortus meaning twisted or wrong. In oursystem we refer to the law of delicts, whereas in English and American law they refer to the law of torts.

 

The law of delict is a branch of private law falling under the law of obligations. It deals with civil wrongs as opposed to criminal wrongs. It does not, however, cover all civil wrongs. The special rules relating to the legal consequences of breaches of contracts,which are also civil wrongs, are dealt with under the law of contract and not the law of delict. Although the same act or omission may constitute a delict and a crime,or both a delict and a breach of contract, the law of delict must be carefully distinguished from criminal law or contract.

 

A delict has been variously defined as:

  • A civil wrong to an individual for which damages can be claimed for compensation and for which redress is not usually dependent on a prior contractual undertaking to refrain from causing harm.
  • An unlawful, blameworthy act or omission which causes damage to a person or his or her property, or injury to personality, and for which a civil remedy for recovery of damages is available.
  • A breach of a general duty imposed by law giving rise to a civil action at the suit of the injured person.
  • The breach of a duty, imposed by law, independently of the will of the party bound, which will ground an action for damages at the suit of any person to whom the duty was owed and who has suffered harm in consequence of the breach.

 

Purpose of the law of delict

 

From these definitions we can discern that the essential purpose of the law of delict is to afford a civil remedy, usually by way of compensation, for wrongful conduct that has caused harm to others. This civil remedy is not in any way dependent upon the existence of any contractual relationship between P and D. The law, thus, imposes a general duty upon all persons not to harm others wrongfully and sets out to define when an act or omission is wrongful so as to attract civil delictual liability. An English writerdepicts this as follows:

 

The law of torts constitutes a body of liability rules. These rules signal when a person is to compensate another by the payment of damages or to be restrained from doing certain acts by way of injunction. [In our law this is known as interdict.] Those rules, then, indicate whether or not losses caused by human conduct will be shifted from one party to another (or the loss will be where it falls).

 

In broad terms, the law of delict acts as a regulator of social conduct in the sense that it establishes how people should behave in relation to one another by laying down when one person is delictually liable to another. The wrongdoer who causes harm is made to pay compensation to the wronged person.

 

The two main types of loss for which compensation can be claimed under the law of delict are wrongs of substance leading to financial loss; and wrongs to personality leading to sentimental loss. Wrongs of substance are wrongs that cause tangible harm, such as injury to person (including psychological harm), damage to property and harm to economic interests. Wrongs to personality are those that cause intangible harm, for example, by harming reputation or subjecting a person to indignity.

 

Not every type of harm suffered by a person is actionable in the field of delict. A person can only sue successfully in delict if the law of delict recognises that there is legal liability for that type of harm. An easy example of where the law of delict does not provide a remedy for loss is where P and D are both store-owners and D lowers the prices of his goods so as to attract to his business the customers who have previously been buying those goods from P’s store. Trade competition is the essence of a free market economy and, in such an economy, the law allows such competition and thus provides no remedy for the person who suffers economic loss as a result of such competition.

Interests protected by the law of delict

The law of delict seeks to protect against or provide remedies for:

  • injury to persons;
  • damage or destruction of property;
  • harm to personality interests (harm to reputation, dignity and privacy;
  • business, trade and economic interests.

 

Courts in which delictual claims can be brought

 

The High Court, the Magistrates Court and the Small Claims Court hear delictual cases. Which of these courts hears the case depends upon the financial jurisdiction of the court. The Small Claims Court can hear delictual claims involving an amount up to $1000. (SI 34 of 2016)

Delict, contract and crime

Delict and crime

The main object of a criminal prosecution is the punishment of the offender whereas a delictual action is a civil action in which the injured party will be claiming compensation. Many wrongs, however, can lead to both criminal prosecution and, also, a civil claim. Wrongs, such as negligent driving resulting in a collision with another vehicle, assault, and rape, are all crimes for which persons can be punished and delicts for which the wrongdoers can be made to pay compensation to the persons injured by the wrong. Some wrongs, however, are only delicts and are not crimes, such as, seduction and adultery.

Section 4 of the Criminal Procedure and Evidence Act [Chapter 9:07] provides that neither a conviction nor an acquittal following on any prosecution will be a bar to a civil action for damages at the instance of any person who may have suffered any injury from the commission of any alleged offence. See Mpofu v Delta Beverages HH-131-14 where it is pointed out that the doctrines of autrefois convict and autrefois acquit do not apply in this situation.

 

Section 31 of the Civil Evidence Act deals with proof of a previous criminal conviction in a civil case. The effect of this section is that evidence is admissible in a delict case that the defendant has been convicted by any court or military court in Zimbabwe or elsewhere. It further provides that in any civil proceedings if it is proved that a person has been convicted of a criminal offence, it will be presumed unless the contrary is shown—

  • that he did all acts necessary to constitute the offence; or
  • where the offence is constituted by an omission to do anything, that he omitted to do that thing;

 

However, the section that evidence of a conviction may not be adduced if there is an appeal pending until the appeal has been finally determined or has lapsed or been withdrawn or abandoned. On the other hand, evidence of a conviction can be adduced even if the person has subsequently been pardoned.

 

The section provides what documentary evidence of a conviction can be produced as prima facie evidence of a conviction. The documents in this regard are a document—

  • that purports to be a copy of the record of the criminal proceedings concerned or a copy of any part of the record which shows that the person was convicted of the offence; and
  • that is proved to be a true copy of the original record or part thereof or purports to be signed and certified as a true copy by the official having custody of the original record.

 

It is permissible to produce any other evidence that proves that a person has been convicted of an offence.

Delict and contract

The main object of a contractual action is either to enforce the contractual obligation or to obtain damages for breach of the contract. This is different from a delictual action. The table below sets out the major differences between a delict and a contract.

 

Delict

 

Contract

General obligation imposed by law

Obligation derives from agreement between parties

Compensation for monetary or sentimental loss

Compensation for breach of contract

Fault is normally the basis of liability although, for a few delicts, liability is strict and does not require proof of fault

Proof of fault not required

 

Obviously P can’t obtain double compensation by claiming damages both for breach of contract and in delict.

 

It should be noted that, whereas delict requires fault for liability, the person claiming for breach of contract is not required to prove fault on the party of D. Also, in delict, there can be a claim for intangible harm such as pain and suffering whereas this cannot be claimed for breach of contract.

It is accepted that where a doctor contracts to treat P and fails to do so or negligently performs medical procedure and as a result P suffers physical harm, Pcan sue in either contract or delict. (It may be better to sue in delict as P can then claim damages for pain and suffering.) In the case of Chibage v Ndawana 2009 (2) ZLR 387 (H) the court decided that, in a case of professional negligence by a doctor, our law acknowledges a concurrence of actions where the same set of facts can give rise to a claim for damages in delict and in contract, and permits the plaintiff in such a case to choose which he wishes to pursue.

It is often better to sue in delict because the patient may obtain damages in delict, not only for patrimonial loss, but also for sentimental harm such as pain and suffering.

 

This approach was adopted in the case of Cathkin Park Hotel & Ors v Makesch Architects & Ors 1993 (2) SA 98 (W). Here Ps claimed damages suffered in consequence of a fire in a hotel owned by P1 and leased by P2. The Ds had all been involved in either the design or construction of the hotel. They brought an Aquilian action alleging that D1 and D2 breached their duties of care towards Ps, such breaches being breaches of their contractual obligations to the Ps. The Ps claimed delictual damages. D1 excepted on grounds that the claim should have been in contract and not in delict. D1 argued that that the grounds of negligence did not give rise to a duty of care in the light of the contractual relationship between the parties.D2 also excepted to the claim, averring that its duties to P1 arose out of and pursuant to a contract between them and P1, accordingly, had nocause of action arising out of theAquilian actionand was limited to its contractual rights.

 

The court dismissed the exceptions, holding that the damages claimed were classically those of patrimonial damages, as distinct from contractual loss, arising out of physical damage to property: the present case was not one of pecuniary or economic loss. Where the case was one of physical injury to person or property, the Aquilian action clearly lay and no extension of the Aquilian action was necessary. If the breach of the duty of care was accompanied bynegligence, damages could be claimed in delict: such duty was owed to the first plaintiff; it had been clearly spelled out, it was a contractualduty which had been breached accompanied bynegligence.

 

This approach is, however, confused as a result of the decision in Otto v Santam Insurance & Another 1992 (3) SA 615 (O). In this case P’s car was involved in an accident. P was insured by insurance company. The insurance company sent the car for panelbeating. The panel beaters negligently performed the work. The chassis of the car had bent in the accident and the panel beaters had not bent it back enough. This caused the car’s cooling system to malfunction and this resulted in damage to the engine. P sought to sue both the insurance company and the panelbeaterfor damages in delict.

 

The court held that P should have sued the insurance company in contract. The insurance company was liable to P under the insurance contract for damage caused to the car in the accident. The insurance company had elected to repair car and therefore had a contractual obligation to repair the damage in a proper and workmanlike manner to the extent that the vehicle was for all practical purposes restored to the same condition in which it was before the accident.

 

Burchell Principles of Delict at p 7 argues that, as the loss here resulted from physical harm to property, an action in delict should have been allowed.

 

In respect of purely economic loss if there is a contract , again the question arises whether the claim should be in contract  or in delict.

 

In Lillicrap, Wassenaare and Partners v Pilkington Brothers (SA) (Pty) (Ltd) 1985 (1) SA 475 (A) P, glass manufacturer, contracted structural engineers to examine the suitability of soil for construction of float glass works.For this type of glassworks, the level of the ground and of the buildings is of utmost importance. The engineers gave a favourable report on the soil for this purpose. The engineers had also agreed to design the works and supervise their construction. P went ahead with construction under the supervision of engineers. After some work had been done, P assigned his rights and obligations under agreement with the engineers to S, the main contractor. After the works were completed, it was found that because of movements in soil, the functioning of vital areas of glass works was impaired and P sustained substantial loss in repairing faults in works.P then sought to sue the engineers for the loss suffered, claiming they had been negligent in their examination of soil by failing to exercise the necessary professional skill and care, thereby causing P the loss. (P could not sue in contract as the contractual claim had prescribed.) The majority held (with one dissent) that it is undesirable to extend the Aquilian action to duties subsisting between parties to contract of professional service like this one. The delictual remedy is unnecessary and parties should not be denied their reasonable expectation that their reciprocal rights and obligations would be regulated by their contractual arrangements and would not be circumvented by the law of delict. These considerations did not fall away when contract was assigned: the same arguments militating against delictual duty applied where the relationship is tripartite.

 

Burchell at p 7 also criticizes this case. Burchell gives this example: P employsan architect to design a building. The architect then sub-contracts a builder to construct the building and the builder negligently uses sub-standard materialsand as a result the building is unsafe. He points out that if the building collapses and P is injured, he can claim delictual damages from the negligent builder. But, the Lillicrap case would seem to say that if the building does not collapse, but P has to spend money to repair the building and make it safe,he can’t claim the purely financial loss from the builder in delict but must instead sue the architect in contract.

 

Neethling and Potgieter and Visser at pp 259-260 say that it appears that the courts will not readily allow a delictual remedy independently of a contract in cases of purely economic loss. Normally where professionals like legal practitioners, auditors and architects act negligently, P will only be able to claim in contract. But they then say that in the case of Pinshaw v Nexus Securities Pvt Ltd 2002 (2) SA 584 (W) the court held that the Lillicrap judgment did not apply to contracts with quasi-professionals like those providing financial services who present themselves as experts. Further, in the case of Holzhausen v ADSA Bank 2000 (5) SA 630 (SCA) the court laid down that even where the claim is for purely economic loss, a delictual claim for damages would be allowed there the claim did not depend upon breach of a contractual duty but rather general delictual principles of negligence. Here the claim was for negligent misrepresentation.

 

If the Zimbabwean courts follow this approach, then in certain instances delictual claims for purely economic loss will be allowed in some instances even though the parties were in a contractual relationship. For instance, if the imposition of liability on D will lead to liability to a multiplicy of actions

Can affected third parties claim?

Loubser and Midgley at pp 218-219 refer to a situation where security company is engaged by the owner of a building to guard the entire building. If the security company fails to carry out the guard duties properly can it be held delictually liable to third parties occupying portions of the building, such as those who rent apartments or offices in the building or to persons who park their cars in a parking garage? If the security company negligently performs the contract and items are stolen from the premises which belong to third parties, can third parties bring a delictual claim against the security company? The authors say that the security company will be delictually liable to the third parties if it can be found that the security company owed a legal duty to them because it has created an expectation on the part of the third parties that their property will be protected. They go on to say this. “Creating such an expectation is not conclusive and the courts will take into account whether the plaintiff could reasonably have relied on the security services for protection, and all the other circumstances of the case,”

 

In the case of J Paar & Co (Pvt) Ltd v Fawcett Security 1987 (2) SA 140 (ZS) a security company contracted with an oil company to guard its premises. A transport company had certain vehicles on the premises as part of its contract with the oil company. One of these vehicles was stolen by an employee of the oil company and destroyed. The transport company instituted action in delict against the security company claiming damages in delict for the loss of the vehicle alleging the negligent breach by the security company of a duty of care owed by it to the transport company to prevent the theft of its vehicle. The court held that the security guard was not negligent in failing to prevent the theft of the vehicle. Obiter, however, the court stated that negligent infringement of a contractual obligation may give rise to delictual liability even where there would have been no initial obligation to act but for the contract. A duty of care arises where there is sufficient proximity of relationship between the parties concerned. Such proximity did not exist between the parties in this case. But see (1988) 105 SALJ 395 for heavy criticism of the approach of the Supreme Court in the J Paar case.

Fault liability system

Most delictual actions in our system require proof of fault. There are only a few strict actions, such as the Pauperien action, where no proof of either intention or negligence is required. All the rest of the actions require proof of either intention or negligence. Some actions, such as fraud and assault, require proof of intention. By far the most frequently brought action in our system, the Aquilian action, requires proof of either intention or negligence. Most Aquilian actions are based upon allegations of negligence. Negligence is, thus, the most important species of fault in our system of delict.

 

The theory underlying the fault liability system is that a blameworthy individual who injures another intentionally or carelessly should be made to compensate the injured party. The defendant is “punished” by having to pay money to the plaintiff. This causes him suffering and acts as a deterrent in the future and thus helps to reduce the accident rate in society. However, the defendant should only be made to pay for the loss (i.e. the loss should only be transferred to him) if defendanthas been at fault. It is seen as being unfair to make defendant pay the loss if not at fault. But this theory is premised upon payment for the loss by the wrongdoer himself. In many instances in the modern world, the defendant will be covered by liability insurance and the insurance company, and not the defendant, will pay the loss. The only “punishment” that the insured person may suffer is that they may sometimes lose their no claim bonus. As the injurer does not personally pay for the loss, there is little deterrent effect. Loss spreading also undermines deterrence. For example, a manufacturer who is made liable to pay damages for the harm caused by a poorly manufactured product may be able to absorb the costs of this liability by passing them on to customers by raising the prices of the products. (There are clearly limits to this process. Manufacturers are likely to go out of business if they continue to manufacture shoddy products and seek to pass the liabilities incurred for harm caused by such products on to their customers.)

 

The fault liability system has been the subject of a lot of criticism. These criticisms will be dealt with later in the section entitled “Reforming the Law of Delict.”

Sources of law of delict

Zimbabwe’s general law of delict is derived from Roman law, as received and developed in Holland and further developed in Southern Africa. It has been heavily influenced by South African law. The law of delict has been adapted to suit the contemporary conditions in Zimbabwe. The customary law relating to the field of delict was developed in Zimbabwe.

Onus of proof

The general evidential rule that applies in all delict cases is that the plaintiff must prove his or her claim on a balance of probabilities. Where a defendant seeks to rely upon a defence to liability, he or she must prove the defence on a balance of probabilities.

Financial means of defendants

In deciding upon liability in delict the financial means of D is not considered: the fact that D is poor does not affect liability or serve to reduce the amount of damages to be awarded. The amount of damages is assessed on the basis of the loss or damage caused and not on the basis of the capacity of D to pay.However, in practical terms, there will be no point in suing a completely impoverished, uninsured defendant.

Development of law of delict under constitution by courts

The law of delict is not a static branch of the law. It has shown itself to be capable of development and adaptation in the light of changing conditions in society. For instance, the concept of negligence can be applied to situations arising out of modern industrial and technological developments. Particularly in South Africa, the ambit of legal duty for public authorities in respect of liability for omissions has been broadened based upon the concept of the legal convictions of the community. We need to explore how the constitutional provisions can be used to develop and expand the common law of delict further. We can draw from South African case law in which the courts have relied on constitutional values and fundamental rights guarantees to re-shape certain areas of the law of delict. The Constitution of Zimbabwe contains many values and rights which are identical, or at least very similar, to those in the South African Constitution. Therefore the jurisprudence in these South African cases is of importance in the development of the law of delict in Zimbabwe.

 

The Constitution of Zimbabwe obliges the courts to develop the common law in line with the Constitution, delict being a branch of law that is governed primarily by the common law. Section 46(2) of the Constitution of Zimbabwe provides that when developing the common law, every court must promote and be guided by the spirit and objectives of the fundamental rights provisions in Chapter 4 of the Constitution.

 

Section 176 provides that the Constitutional Court, the Supreme Court and the High Court have inherent power to develop the common law, taking into account the interests of justice and the provisions of this Constitution. Like the Zimbabwean Constitution the South African Constitution in section 19(2) provides that when developing the common law, every court must promote the spirit, purport and objects of the Bill of Rights.

 

Section 3 of the Constitution of Zimbabwe contains the founding values and principles that must be respected. These include the supremacy of the Constitution, the rule of law, fundamental rights and freedoms, the recognition of the inherent dignity and worth of each human being, equality, gender equality and good governance. Chapter 4 contains the fundamental rights provision such as the right to life, the right to personal liberty, the right to dignity and the right to personal security.

 

In South Africa,  as will be seen later, the courts have been active in developing the common law of delict so as to accord with the constitutional provisions. This has been most evident in relation to the development of the law on omissions by expanding the ambit of legal duty, especially by state institutions such as the police. It has also been seen in the development of the issue of vicarious liability of the State for illegal actions by the police.

Delictual actions in general law

By far the most important actions in our law of delict are the Aquilian Action (actio legis Aquiliae) and the actio injuriarum. The overwhelming majority of cases brought to court are Aquilian actions for negligent causing of harm. Actions brought under the actio injuriarum usually involve the claiming of damages for defamation.

 

Essentially, the Aquilian action provides a remedy for what are known as wrongs of substance. It provides a remedy for loss due to:

  • injury to person including psychological harm (for example, where a person is injured in a motor vehicle accident);
  • for damage to property (for example, where D starts a fire on his land and the fire spreads to P’s land and causes damage to his property);
  • harm to economic interests (for example, where D defrauds P and causes him financial loss); and
  • loss of support (for example a young child is left without support when her parents are killed in a motor vehicle accident).

 

On the other hand, the actio injuriarum provides a remedy for wrongs to personality. It provides a remedy for sentimental loss or intangible harm. This harm can be:

  • harm to reputation, that is, harm to one’s standing in the eyes of others (for example a newspaper publishes an article about P in which it alleges that P has engaged in corruption);
  • harm to dignity, (for example, D makes sexual advances to P, a woman); and
  • invasion of privacy (for example, D, a policeman, enters P’s house to carry out a search of the premises when he has no search warrant and there was no lawful justification to carry out the search).

 

In Ritenote Printers (Pvt) Ltd v A Adam & Co (Pvt) Ltd 2014 (2) ZLR 314 (H) the court set out in detail the distinctions between the Aquilian action and the actio injuriarum and pointed out that where one wrongful act causes both patrimonial loss and personality harm both causes of action must be pleaded separately. In this case P1 had been wrongfully evicted by D from premises P1 was leasing from D. P1 was claimed it had suffered patrimonial loss as a result of loss of trade arising from the eviction. P2 was a director in P1’s company claimed that the eviction of P1 had led him to suffer from chronic depression and made him unable to run the affairs of P1.  

 

In addition to these two major actions, there are certain other delictual actions which have their own separate and distinct requirements, such as the Pauperien action for harm done by animals, the action for seduction, the action for wrongful arrest and imprisonment, and so on.