Department of Private Law Law of Delict (Lb204) Course Outline 2020

DEPARTMENT OF PRIVATE LAW
LAW OF DELICT (LB204)
COURSE OUTLINE 2020

Lecturer: Miss. Z.V. Mugota LLBS (UZ), LLM (Leeds)
Contact hours: 4 hours of lectures per week and 8 hours of tutorials over the semester
This course is a compulsory course in the second year of the LLB degree. Later courses
build on knowledge acquired from this course.
1. COURSE OBJECTIVES
The main objectives of this course are;
 to enable students to understand the nature and purposes of the law of delict and its
theoretical underpinnings, and to critically examine the way in which the system operates
and its social and economic impacts;
 to impart a sound working knowledge of the practical application of this branch of law
and its main principles and concepts, and to equip students with the tools to deal with all
types of delictual cases in legal practice;
 to identify shortcomings in the operation of the current system, particularly the
inadequacies of the fault based system in ensuring that injured parties receive redress;
 to consider possible reforms to the system, using comparisons with compensation
systems in other countries;
 to show how the law of delict operates in conjunction with other compensation systems
such as the National Social Security Authority system.
2. METHOD OF TEACHING
There will be four lectures per week and eight tutorials. Attendance at tutorials is
compulsory.
The emphasis in this course will on general discussion, case study and problem solving.
Students will be expected to engage in critical analysis and evaluation, and to analyze
the principles underlying the law of delict, its policy basis and its social and economic
impact. Selected cases will be dealt with in depth to acquire an understanding of the
delictual principles.
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3. ASSESSMENT
Course work
Students will be required to submit one essay assignment and sit for 1 in class test. This will
make up 20% of the final course mark.
Exam
The exam will be 80% of the overall course mark. The paper consists of two sections
with discussion questions and problem questions. Students must answer at least one
question from each of the two sections.
The only material that students will be entitled to have in the examination room is an
unannotated list of the main case decisions dealt with in the course.
4. COURSE CONTENT
4.1 Introduction
 The nature and purpose of the law of delict and its place in the legal system of
Zimbabwe.
 The role and obligation of the courts to develop the common law of delict in line with
constitutional values and constitutional rights and freedoms.
 The overall purpose to provide redress through a civil action for harm caused by
physical harm to person or property or harm to personality interests such as
reputation and dignity and by invasion of privacy.
 The fault based nature of our system although there are a few strict liability delicts.
 The fault based system is based largely on individual responsibility on the creator to
provide redress for the harm caused by him or her.
 The problems inherent in the fault based system, particularly for litigants with limited
financial means.
 The relationship of delict to other branches of the law such as the law of contract and
criminal law.
 Main remedies are compensation and interdict. Compensation for physical harm
seeks to place injured party as far as is possible by monetary compensation in the
position he or she would have been had the injury not occurred. Compensation for
harm to personality is awarded as a solace for the intangible harm caused.
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 The burden of proof in delictual cases. The primary onus is on the plaintiff to prove
his or her case on a balance of probabilities.
4.2 Wrongs of substance
4.2.1 The Aquilian action

a) The fault requirement
 This can be either intention or negligence but most delictual actions are brought on
the basis of negligence;
 The standard of negligence;
 Criteria for deciding reasonable foreseeability and whether there was a duty to guard
against foreseeable harm;
 Professional negligence: Medical practitioners, legal practitioners, auditors and
accountants, engineers, architects etc;
 Apportionment of damages. Apportionment between plaintiff and defendant. Joint
and concurrent wrongdoers.
b) The wrongfulness requirement (unlawfulness)
 Omissions;
 Nervous shock;
 Negligent misstatements causing purely financial loss;
 Causing of purely financial loss other than by negligent misstatements;
 Causing financial harm by unlawful trade competition.
c) The patrimonial loss requirement
d) The causation requirement. Must be both factual and legal cause.
4.3 Wrongs to personality interests (Harm to reputation and dignity, and violation of
right to privacy)
4.3.1 Defamation
 Achieving the correct balance between protection of reputation and upholding of
freedom of speech and freedom of the media – the Constitutional provisions;
 What constitutes defamation;
 Persons who can be defamed;
 Publication (including cyber publication) and republication;
 Interdict to stop impending publication;
 Quantification of damages and avoidance of extravagant claims;
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 Defences to defamation: Justification, Fair Comment, Privilege (absolute and
qualified);
 South African defence that media published a story in the public interest story
believing on reasonable grounds that information accurate. Whether this is a defence
in Zimbabwe;
 Jest, Rixa and Compensation;
 Newspapers and defamation.
4.3.2 Forms of Injuria other than defamation

 There are strong protections in the Constitution of the right to dignity and the right to
privacy;
 The law of delict provides a remedy for violation of these rights.
4.4 Miscellaneous delictual actions

 Assault;
 Delicts arising out of arrest, imprisonment and legal proceedings;
 Delicts relating to sexual intercourse and marriage;
 Special actions for harm caused by animals;
 Nuisance;
 Special delicts relating to things falling from buildings;
 Breach of statutory duty;
 Negligent performance of statutory duty;
 Trespass.
4.5 Vicarious liability

 Rationale and policy considerations;
 Scope and operation of the doctrine;
 When employee no longer in course of employment;
 Vicarious liability of the State;
 Enforcement of damages awards against the State.
4.6 General defences

 Voluntary assumption of risk and exemption clauses;
 Informed consent;
 Necessity;
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 Private defence;
 Statutory and common law authority;
 Trivialities.
4.7 Strict liability in statutes
4.8 Exemption clauses
4.9 Prescription
4.10 Representative and class actions
4.11 Legislative compensation systems
4.12 Role of insurance
4.13 Assessment of damages and apportionment of damages
4.14 Reforming the law of delict

 Individual responsibility
 Social responsibility
 Operational defects of fault system
 Possible reform measures, such as comprehensive no-fault system
4.15 A basic introduction to principles and assessment of delictual damages.
5. READING LIST
G. Feltoe, A Guide to the Zimbabwean Law of Delict, 2014 (Available on TSIME updated to
2017)
J Burchell, Principles of Delict (Juta & Co, Capetown, 1993).
J Neethling et al, Law of Delict, (Sixth Edition, Lexis Nexis, Durban, 2010).
The Law of Delict in South Africa, Ed Loubser and Midgley (OUP Southern Africa 2011)
PQR Boberg, The Law of Delict 1: Aquilian Liability. (Juta & Co, Capetown, 1984).
J Neethling, JM Potgieter and PJ Visser Law of Personality (1996)
J Burchell, The Law of Defamation in South Africa (Juta & Co, 1993)
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PJ Visser and JM Potgieter, Law of Damages (Juta 2003)
RG McKerron, The Law of Delict, (Juta & Co)

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DEPARTMENT OF PRIVATE LAW

LAW OF DELICT (LB204)

COURSE OUTLINE 2020

4.2 Wrongs of substance

4.2.1 The Aquilian action

4.3.2 Forms of Injuria other than defamation

4.4 Miscellaneous delictual actions

4.5 Vicarious liability

4.6 General defences

4.7 Strict liability in statutes

4.8 Exemption clauses

4.10 Representative and class actions

4.11 Legislative compensation systems

4.12 Role of insurance

4.13 Assessment of damages and apportionment of damages

4.14 Reforming the law of delict

4.15 A basic introduction to principles and assessment of delictual damages.

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