EVOLUTION OF THE LAW OF DELICT)

THE ROMAN LAW OF DELICTS BY RAFAEL DOMINGO (SSRN Electronic Journal

·January 2017)

Delicts was a significant branch of the law of obligations, i.e., private wrongs for which redress
was provided by civil law. Just as Roman lawyers did not develop a general theory of contracts,
neither did they produce an elaborate doctrine of delicts. The Roman law of delicts consisted of a
set of reprehensible behaviors (e.g., theft, injury, wrongful loss) that were originally punished at
civil law with a fine, compensation for the loss and damages, or both). Later, as social life
developed, the praetor granted actions and ordered redress for some situations not covered by civil
law (e.g., fraud, duress, robbery). Early law in Roman law involved redress for delicts by
delivering the wrongdoer's body to the victim, which led to specificities in the law compared to
contracts. The law was punitive, as guilty wrongdoers were viewed as intent to defraud. People not
able to perceive fraud could commit delicts. However, children approaching puberty and women
and slaves could. The lex Aquilia (286 BCE) introduced culpable negligence as a delict. The law of
delicts evolved from allowing victims to seek personal revenge to requiring an agreement for
satisfaction. This led to the redemption of revenge into a claim for monetary compensation or
compulsory fine payment. Victims had to accept compensation from the wrongdoer or their
relatives. By classical law, Roman law of delicts and compensations was established as civil
proceedings imposing penalties for wrongdoers. The most important civil delicts were theft, injury,
and wrongful loss, while fraud and duress were significant praetorian delicts.

Penal actions (actiones poenales): Penal actions were defined by Roman jurists as actions derived
from delicts to punish the wrongdoer. These actions had three main features: passive
intransmisibility, cumulative liability, and noxal liability. Passive intransmisibility meant that the
penalty did not survive beyond the wrongdoer's death, while cumulative liability meant that joint
perpetrators had to compensate the victim. The number of perpetrators was irrelevant to the
monetary penalty, as each wrongdoer had to be punished by the law. Noxal liability allowed
paterfamilias to either pay the penalty or surrender the offender to the injured party. Noxal liability
was established either by statute or by praetor's edict. These features were expressions of the
strictly personal nature of the penalty.

Actiones mixtae and reipersecutoriae: Actiones mixtae and reipersecutoriae were two types of
legal actions in ancient Rome. Purely penal actions were designed to punish the wrongdoer without
considering compensation for damages, such as in cases of theft and injury. Reipersecutory actions,
such as rei vindicatio, were used to restitution of stolen items or compensation for damages. These
actions could be added to penal actions to balance the penal and compensatory functions. In later
law, actions called actiones mixtae served both functions, penalizing the wrongdoer and
compensating the injured party. For example, an action for robbery would have a penalty of triple
the stolen value, while the simple value was paid in compensation for damages.

Theft (furtum): Furtum, a delict against property, emerged as early as the Twelve Tables (VIII 12-
17). It was defined as the fraudulent interference with a thing, whether with the thing itself or the
use or possession of it, with a view to profit. The handling had to be intentional and fraudulent.
Children and insane persons could not commit theft. Only movable things and persons in power
could be objects of furtum. Stolen things could not be res nullius or res extra commercium. To

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steal divine things was a sacrilegium, while theft or misappropriation of public things was a crime
of peculatus. Within furtum, a basic distinction was made between cases where the thief was
caught in the act (furtum manifestum) and cases where they were caught later (nec manifestum).
The question of flagrancy was a matter of discussion among Roman jurists. For some, manifest
theft had to be detected at the very moment it was being committed, while others considered it
manifest so long as the thief had not yet arrived at his final destination.The penalty for manifest
theft was capital punishment. If the manifest thief was caught stealing by night or tried to defend
himself with arms, he could lawfully be killed. In all other cases of manifest theft, if the thief was a
free man, he was assigned by the magistrate to the person from whom he had stolen. If the thief
was a slave, he was put to death.In the classical period, the delict of furtum included not only
ordinary stealing and embezzlement but also selling something belonging to another, unauthorized
intentional use of another’s property, collecting money from another’s debtor, and providing
physical help or advice in theft. The actual owner could commit furtum when he took something
from the person who had the right to hold it (furtum possessionis).

Robbery (rapina): Robbery, originally a form of furtum, was later considered a separate delict and
prosecuted separately by the praetor. In 76 BCE, a special action was introduced to punish robbery,
possibly by peregrinus Licinius Luculus. The penalty for robbery was double the value of the
stolen thing, which was too light for social convulsion. The praetor increased the penalty to four
times the value of the stolen thing if brought within a year of the robbery. Victims could bring a
reipersecutory action in addition to a penal action for recovery of the stolen thing or its value.
Justinian classified this action as a mixed action. In certain cases of private violence, criminal
proceedings were added.

Wrongful loss (damnum iniuria): The delict of "loss wrongfully caused" (damnum iniuria datum)
was developed in the lex Aquilia de damno, a plebiscite likely enacted before 217 BCE. The lex
Aquilia introduced general provisions on wrongful damage to property and largely superseded old
provisions and specific cases mentioned by the Twelve Tables and other statutes. Chapter one of
the lex Aquilia condemned the killing of slaves and grazing animals, but not wild animals. The
penalty for violators was the highest value that the slave or animal had had in the year before the
killing. Chapter three was more general, penalizing cases not covered by chapter one in which a
man caused loss to another by burning, breaking, or destroying his property.The action of the lex
Aquilia was available to the owner, but its scope was limited. Damages caused indirectly or simple
omissions created no liability under the statute. Interest parties, such as usufructuaries or pledgee,
who may have suffered economic loss, were not originally protected under the lex Aquilia. By way
of interpretation and praetorian extensions, the application of the lex Aquilia was expanded to new
situations created by a developing society.Justinian described the standard civil action derived
from the lex Aquilia as a mixed action, as the perpetrator of the damage had to pay the highest
value the thing had had during a period of time and not its value when it was damaged. The
compensation, which originally depended on the objective value of the thing, was later fixed,
taking into consideration the actual interest of the injured party.On the basis of Aquilian law, the
praetor granted praetorian actions (sometimes utiles, sometimes in factum) in cases where damages
had been caused only indirectly. The praetor also extended protection to interested parties other
than the owner who had suffered economic loss.

Loss caused by animals: The actio de pauperie was a legal concept that applied to losses caused

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by animals, which were considered damages caused without fault on the part of the doer. It was
first included in the Twelve Tables and later extended to other domestic animals through Praetorian
actions. The actio de pauperie was applied only to domestic four-footed animals but was later
extended to other domestic animals through Praetorian actions.The actio de pauperie was applied
when an animal caused damages "moved by some wildness contrary to nature." The concept was
extremely flexible, and cases were resolved pragmatically. For example, when a horse given to
kicking actually kicked someone or an ox that was prone to goring wentred someone, the actio de
pauperie was applied. However, if the horse kicked someone because it was pricked, hit, or
wounded, the actio de pauperie was not applicable.A magistrate responsible for the safety of public
roads issued an edict on wild animals, granting an action against those who had brought wild
beasts near a public road where there was frequent traffic or who kept them there at the risk of
injuring someone. The person in charge of the beasts, not necessarily the owner, was liable for
creating a risk to others without considering whether or not they could prevent an injury. If a
freeman attacked by such an animal was dead, a penalty of two hundred solidi was imposed, while
in case of damages to property, the person in charge of the animals would be liable for twice the
value of the damage done.

Injury(iniuria): The delict of outrage or injury (iniuria) was a form of Roman delictual
obligations, punishing any intentional and unlawful infringement of a free person's body, honor, or
reputation. It was based on the Twelve Tables and expanded by praetorian edicts and
jurisprudential interpretation. Contumely, which means "scratching" or "deriding," was involved in
any conduct that inflicted harm on another's reputation, honor, and good name.Iniuria required
intentionality and could be committed deliberately. Negligent acts or accidents did not produce
injury, but a mistake regarding the victim's identity did not exclude liability for outrage. The
praetor issued a general edict introducing an all-inclusive action for injuries (actio iniuriarum),
which extended to other forms of outrageous behavior such as public abuse against another,
violation of chastity, and defamation.The actio iniuriarum was penal in nature and cumulative
against joint wrongdoers, offering the alternative of surrender when the delict had been committed
by a person in power or a slave. It had to be brought within one year after the wrongful act had
occurred and was passively nontransmissible. An injury could be aggravated by an actual deed, the
place in which the outrage was effected, or the status of the victim.Like the delict of wrongful loss,
the civil delict of injury was supplemented by criminal prosecutions for personal assaults and
entery into dwellings by force, as introduced by the lex Cornelia de iniuriis (81 BCE). In later law,
criminal procedures were usually preferred.

Duress (metus): Duress (metus) was a legal principle that applied to private transactions induced
by coercion, fear, or force. In 79 or 78 BCE, Octavius introduced the first edict punishing the use
of duuress to compel victims to conclude a transaction, make a payment, or assume an obligation.
The person who acted under duress could bring an action to claim back what they had been
compelled to hand over (actio qud metus causa). The action quod metus causa was a penal action
with some peculiarities. The defendant was liable for four times the value that had been extorted,
which was a high penalty according to Roman standards. However, the action could be brought
against any third party who had acquired the extorted thing, even on good faith. The main purpose
of the action was not punishment of the extortionist but restoration of the extorted thing.If the
extortionist sued the person who had acted under duress, the praetor granted the defendant an
exceptio metus. This exception could be used not only against the extortionist but against any

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plaintiff in good faith who sought the fulfillment of any obligation made under duress. If Titius
promised by stipulation made under duress to give a thousand sesterces to Caius, the praetor could
grant an exceptio metus to the defendant because the transaction was made under duress.In
summary, duress was a legal principle that applied to private transactions induced by coercion,
fear, or force.

Quasi delicts: Quasi delicts were the last category in the Justinian classification of obligations, as
they were isolated forms of no-fault liability with a common factor. They constituted insurance or
guarantee established by public policy and granted by praetorian actions. Justinian mentioned four
quasi delicts, three of which are related to vicarious responsibility. The first quasi delict punished
the judge who made the wrong decision or committed irregularities in the decision-making process.
The second quasi delict penalized the occupant of a building from which objects were thrown or
poured out onto a street, road, or public area. Passersby could bring a praetorian action against the
occupant for double the value of the damage done, even if the occupant had no personal fault. If a
free person was killed, a popular action could be brought for a fixed penalty.The third quasi delict
penalized the placement or suspension of objects from a building in a way that endanger passersby
on a public road or common way. A master of a ship, an innkeeper, or a stable keeper was liable
for theft of things and damages to his clients (passengers or guests) by his employees or slaves.
The justification for the penalty lay in the negligence of the person in charge of selecting his
employees.

HISTORICAL DEVELOPMENT OF DELICTUAL LIABILITY.

The geneology of the law of delict stretches from the twelve table in roman law to the bill of rights
in the constitution. 1 In contrast to the approach of roman law of delict, the South African law of
delict is based on three pillars : the action legis Aquiliae, the action iniuriarum and the action for
pain and suffering. Unlike the last-mentioned actions, which developed in Roman Dutch Law, the
first two remedies played an important role in Roman Law. These three actions have however
developed over the course of time extended far beyond their roman dutch limits.2

BOOK: J NEETHLING, JM POTGIETER ‘LAW OF DELICT’ 8TH EDITION , 2020, pp

8-24

Actio legis aquiliae

It is an action that dates back to Roman law which relates to liability for patrimonial damage
(damnum iniuria datum). In this regard, Roman Law was based on an act (plebiscitum) from 287
BC, known as the lex Acuilia. This act was divided into three chapters of which only the first and
third are still in importance. According to these chapters, the act was only applicable to certain
forms of damage to things. It dealt with the killing or wounding of a slave or four-footed animal
and the burning, breaking and destroying of other things. The aquiline action was available only to
the owner of the damaged property. Over time, the field of application extended as a result of
extensive interpretation of the lex and the granting of actiones utiles and in factum. Acquilian
liability could follow after any kind of physical infringement of a thing, and not only, as was
originally the case but after infringements of a specifically defined nature. Another important
1
Max Loubser, Rob Midgley,Andre Mukheibir, Liezel Niesing, Devina Perumal, ‘ The Law of Delict in South Africa’, 2nd
Edition , 2012, pp 4
2
J NEETHLING, JM POTGIETER ‘LAW OF DELICT’ 8TH EDITION , 2020, pp 8-24
4|Page
development was that the wrongdoer had to compensate not only for the damage caused to the
thing itself, but also for patrimonial damage that resulted from his wrongful act. In Justinian’s time
was that apart from the owner, other holders of real rights and in atleast one instance the holder of
a personal right in respect of the thing were also protected against damage to property. In addition
to damage to property, the action was made applicable to two further instances of patrimonial loss
resulting from bodily injuries. A father could claim for patrimonial loss suffered as a result of the
injury of his child, while a free man could claim for patrimonial loss resulting from his own
personal injuries. However, it is not clear what dimensions the extensions of acquilian liability had
reached in Justinian’s era. The general opinion seemed to be that, although interests other than
ownership where also protected, a perceptible physical infringement of a concrete object, ie, a
thing or the body of a person, was still required. The reasons for this were that the lex aquilia was
initially only applicable to certain physical infrengements of damage of things and the
wrongfulness of a physical infringement was readily apparent to the less sophisticated legal mind.
The infringement constituted as it were easily seen as peg on which an evaluation of wrongfulness
could be hung. However, when a person suffered harm that was not caused by a physical
infringement, the Roman Jurist had no criterion by which to evaluate the act. It is clear that the
progression from liability based on damage to property, to a more general liability for patrimonial
loss began to develop in Roman Law. This was from the fact that the aggrieved party could claim
his id quod interest, and, in certain cases, damages for the patrimonial loss he may have suffer5ed
as a result of bodily injuries. This the way was prepared for the expansion of the aquilian action
into a general remedy for a patrimonial loss caused wrongfully.

Under Roman-Dutch Law, the dimensions of Acquilian liability underwent very important
extensions, going beyond Roman Law limits. There was definite indications that the requirement
of physical impairment of a thing was no longer insisted upon and damages could be claimed with
the Aquilian action for patrimonial damage resulting from any injury to personality and not ONLY,
as was the case in Roman Law were for an injury to personality in the form of bodily injury. Under
Roman-Dutch Law, an action to the holder was of a personal right in respect of a thing was
granted. Furthermore, the availability of the Aquilian action was extended to the borrower (or
persons in similar relationships to the owner) and the lesse of the services of a slave or servant. The
action legis Acquiliae in Roman-Dutch was also available to the dependants of a free person who
had been killed, and the parents or employers for patrimonial loss suffered where a child or
domestic servant had been injured. However, these developments do not indicate that the Aquilian
action in Roman-Dutch had developed into a general remedy for the culpable and wrongful causing
of patrimonial damage. There are however a number of South African decisions in which a
different conclusion about the position in Roman-Dutch Law was reached. For example, in The
Cape of Good Hope v Fischer, De Villiers CJ stated with reference to Voet and Matthaeus: it
appears from both these authors that in their time the Acquilian law had received an extension by
analogy to a degree never permitted under the Roman Law. The action in factum was no longer
confined to cases of damage done to the corporeal property but was extended to every kind of loss
sustained by a person in consequence of the wrongful acts of another. 3

In South Africa through case law, the position was developed where the impression that Acquilian
liability results from every culpable and wrongful act that causes patrimonial damage. The
viewpoint was respected by the remark made by Watermeyer J in Perlman v Zoutendyk where is
3
The Cape of Good Hope v Fischer (1886) 4 SC 368 379
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was highlighted that Roman-Dutch law approaches a new problem in the continental rather than
the English way, because in general all damage caused unjustifiabily is actionable, whether caused
intentionally or by negligence(culpa). 4 Acuilian action has developed in South African law in
which in contradistinction to ealier cases, which require physical injury to person or property to
find Acquilian liability, it is today established law that compensation for so called pure economic
loss may be claimed ex lege Aquiia. In Coronation Brick (Pty) Ltd v Strachan Construction Co
(Pty) Ltd, 5Booysen J Stated that the legal basis of the plaintiff’s claim is the lex Acuilia. In
essesnce the Acquilian lies for patrimonial loss caused wrongfully (or unlawfully) and culpably.
Although the contrary view had long been held by many authorities, it seems clear that the fact that
the patrimonial loss suffered did not result from physical injury to the corporel property or person
of the plaintiff, but was purely economic, is not a bar to the Aquilian action. The appekete division
confirmed this view in respect pf delictual liability for negligent misrepresentation and unlawful
competition. The development of the action legis Aquiliae to its conclusion is however slowed
down by Union Government v Ocean Accident and Guarantee Corporation Ltd. As a result of this
decision, the courts have refused to extend Aquilian liability for negligent interference with a
contractual relationship beyond certain historically justified exceptions. Later, it was seen that
despite a few decisions to the contrar, there is a strong tendency in case law to recognise Aquilian
liability for all patrimonial loss caused wrongfully and culpably. In Union Government v Warneke,
innes JA held that: the position of our law with regard to negligence today is the result of the
growth and the regulated expansion of the orginal provisions of the lex Aquiliae. Crude and archaic
in some respects, their operation was gradually widened by the application of the utilis actio, and
by the interpretation of the Roman Jurists. The broadening process was continued by Dutch
lawyers on the same lines; and there is no reason why our courts should not similarily adapt the
doctrine and reasoning of the law to the conditions of modern life, so far as that can be done
without doing violence to its principles. From this, there can be no objection that to the extension
of the dimensionsof acquilian liabilityin order to cope with changing circumstances. since the
Appel- late Division in Administrateur, Natal v Trust Bank van Afrika Bpk" treated infringements
of corporeal objects (such as things) and incorporeal objects (such as the general patrimonial
interests that could be at stake in the case of misrepresentations) alike for the purposes of Aqui-
lian liability (and thus in principle denied a distinction between the causing of damage by words on
the one hand and by deeds on the other), there is no reason why every infringement of any
incorporeal object should not ground the actio legis Aquiliae, provided that all the requirements for
the action are met. This does not mean that a liberal approach should be followed in every case. On
the contrary, our courts adopt a conservative approach to the expansion of the Aquilian action and
will, according to Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd," only
permit such an extension if it is justified by policy considerations: South African law approaches
the matter in a more cautious way... and does not extend the scope of the Aquilian action to new
situations unless there are positive policy considerations which favour such an extension.

Actio iniuriarium
In Roman Law, the protection of personality had its origin in the Twelve Tables and was directed
mainly at the physical person, ie, bodily integrity as an interest of personality. Penalties in the form
of fixed fines were imposed for as fractum (the fracturing of a bone) and membrum ruptum (the
sever- ance of a limb) on the one hand, and for iniuria in a specific sense (less serious bodily
4
Perlman v Zoutendyk 1934 CPD 151 155
5
Coronation Brick (Pty) Ltd v Strachan Construction Co (Pty) Ltd, 1982 4 SA 371(D) 377
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injuries) on the other.Over the course of time, the protection of personality has been extended
considerably by Praeto- rian reforms. Firstly, the rigid fines of the Twelve Tables have been
replaced by a judicial taxation, in accordance with the bodily infringement complained of.
Secondly, the protection of personality has also been made applicable to the following non-
physical interests:" good name,dignity, feelings of chastity and privacy. However, the Roman law
approach to the field of iniuria was casuistic.There was no question of an organised system for the
protection of personality rights. Consequently, in order to ascertain the extent of the protection of
personality - ie, which interests of personality were legally recognised - it was necessary to classify
the casuistry of the sources according to one or other system. The generally acceptable
classification of iniuriae found in Roman law was that the actio iniuriarum was applicable to
impairments of corpus, fama and dignitas. However, although one may identify corpus and fama as
independent interests of personality with more or less fixed meanings, the same cannot be said of
dignitas. Dignitas was in any case not regarded as synonymous with honour or dignity as an
interest of personality, but rather as a collective term for all interests of personality other than
corpus and fama, which in Roman law had not yet been clearly distinguished from each other and
independently defined.
As a result, the door was left open for further development in the protection of personality by the
Praetor. In consequence, it is hardly surprising that various interests of personality, although not
mentioned in nomine, were included in the concept of dignitas in Roman law and as a result were
brought under the protection of the actio iniuriarum. Apart from dignity, feelings of chastity and
privacy that had already been identified as protected interests under the praetorian edicts, feelings
of piety and religious and family feelings88 were now also, in certain cases, regarded as worthy of
protection.
One may assume with a reasonable measure of certainty that, in addition to the requirement that a
legally recognised interest of personality had to be infringed, Roman law required intent (dolus or
animus iniuriandi) on the part of the wrongdoer before an iniuria could be said to have been
committed. The requirement that the infringement must be accompanied by contumelia indicates
only the intentional contempt (violation) of another's personality, and does not mean, as has
sometimes incorrectly been stated, that the intent to insult or to violate a person's honour had to
accompany every iniuria. One may conclude that although the concept of iniuria developed into a
general delict intended to protect personality interests, it would be unwise to maintain that the actio
iniuriarum protect- ed the personality in its entirety. At most, it can be said that in principle the
action was available for every intentional infringement of a person's corpus, fama or dignitas. The
door was, how- ever, left open for further development in the sphere of personality protection,
since the concept of dignitas was wide enough to include new facets of the personality deemed
worthy of protection.

Under Roman-Dutch Law, the Roman law delict iniuria remained unaltered. Although the field of
iniuria had been approached differently by various writers of the time, it is apparent that, insofar as
the identification of protected interests of personality is concerned, they did not proceed much
further than the level reached in Roman law. Apart from the fact that some writers identified
libertas (freedom) as an additional personality interest, the only other protected interests on which
unanimity existed were corpus and fama. As was the case in Roman law, dignitas (and related
concepts such as hoon (used by De Groot) and eer (used by Van der Linden)) was not regarded as
an independent, clearly defined interest of personality. These concepts may therefore be regarded
as collective terms for interests of personality which were neither identified nor clearly delimited in

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Roman-Dutch law, and which were broad enough to include new interests of personality worthy of
protection. Similarly, the old writers did not depart in any material way from Roman law with
regard to the requirements for liability for an iniuria. Unlike Roman law, the old writers expressly
required intent (dolus malus or animus iniuriandi) as an element of liability for an iniuria. Although
the concept contumelia was also used, the writers do not appear to attach a specific meaning to it.
All that it probably refers to is conduct that demonstrates contempt for a person's personality. No
support can be found in their writings for the view tha contumelia should be interpreted exclusively
to mean insult or injury to a person's honour. In conclusion, mention should be made of a
particular development in the field of personality protection in Roman-Dutch law. The actio
iniuriarum was replaced by two actions, the amend profitable and the amende honorable. The
former, like the actio iniuriarum, was aimed at the recovery of satisfaction. The latter departed
completely from the actio iniuriarum: an injure person could claim a palinodia or recantatio, ie,
demand that the wrongdoer withdraw his words and deny the truth thereof; as well as a deprecatio,
ie, an admission of guilt and a request for forgiveness.

In "The Roman and Roman-Dutch Law of Injuries," Melius de Villiers outlines three essential
criteria for establishing an action for iniuria. These include the offender's intention to cause harm,
the commission of an act beyond their legal competence, and an aggression that impairs the
dignity, reputation, or person of another. In the case of Delange v Costa, the court discussed the
elements of the actio iniuriarum when a plaintiff's dignity was alleged to be affected. The court
emphasized the importance of determining the wrongful nature of the act and the subjective
impairment of dignity suffered by the plaintiff. Contrary to this interpretation, de Villiers suggests
that the inquiry should begin with assessing whether the plaintiff's dignity was subjectively
impacted before determining the objective wrongfulness of the act. Additionally, de Villiers
disagrees with the notion that a ground of justification rebuts the presumption of intention, noting
that justifications defend the conduct rather than negate fault. 6

In South Africa, the question of whether and to what extent South African case law has built on the
common law basis in respect of the identification and recognition of personality interests now
arises. Firstly, it should be noted that, apart from certain English law influences regarding iniuriae,
the common law delict iniuria has actually undergone no change in South African law. In fact, the
courts (almost without exception) start with Voet's definition of this delict. In R v Umfaan Innes
CJ stated with reference to Voet that an iniuria: is a wrongful act designedly done in contempt of
another, which infringes his dignity, his person and his reputation. If we look at the essentials of
iniuria we find ... that they are three. The act complained of must be wrongful; it must be
intentional; and it must violate one or other of those real rights, those rights related to personality,
which every free man is entitled to enjoy. In short, then, an iniuria is the wrongful, intentional
infringement of or contempt for a person's corpus, fama or dignitas. Nevertheless, the present
position is that the courts identify, recognise and protect corpus (physical integrity) and fama (good
name) as separate interests of personality. However, views about the meaning to be attached to the
concept of dignitas vary considerably.

On the one hand, certain decisions' limit dignitas to the personality interest of dignity or honour,
and consequently require an "element of degradation, insult or contumelia" for an iniuria to have
been committed against the dignitas. The emphasis on contumelia in the sense of an insult is
6
Ibid at 1,p28
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furthermore not restricted solely to iniuria pertinens ad dignitatem. There are decisions that go so
far as to require contumelia in this sense for every iniuria.No support can, however, be found for
these views in our common law sources. Contumelia in the sense of an insult was at no stage a
general requirement for the delict iniuria. Furthermore, the concept of dignitas was never restricted
to the personality interest of "dignity". For these reasons, the rejection of these views by the
Appellate Division can be wholeheartedly supported." On the other hand, one encounters decisions
that correctly interpret the concept of dignitas in its broad common law meaning and refuse to
restrict its application to the personality interest of "dignity". The leading decision in this regard is
O'Keeffe v Argus Printing and Publishing Co Watermeyer AJ accepted that the actio iniuriarum is
available for "an intentional wrongful act which constitutes an aggression upon [a plaintiff's]
person, dignity or Since in this case there was no question of the infringement of the plaintiff's
"person" or "reputation", the only question was whether there was an infringement of "dignity" or
"those rights widely that it encompasses all aspects of the legally protected personality, except
fama and relating to dignity". It is evident from the judgment that the judge interpreted dignitas"
corpus. As such, dignitas cannot be considered as a single interest of personality; it is rather a term
for all rights (interests) of personality with the exception of the rights to good name and to concept
encompassing all "those rights relating to ... dignity". Dignitas is thus a collective. This view of the
concept of dignitas can be supported as indicated, it accords with the wide common law meaning
attached to the concept. Another important point is that this approach offers a good basis for the
identification, recognition and delimitation of individual, independent rights of personality in
South African law. In this way, the proper scientific classification and practical handling of
personality rights (apart from those relating to corpus and fama) can find personality protection.

Action on pain and suffering.

Unlike the Aquilian action and the actio iniuriarum, the action for pain and suffering did not
originate in Roman law. No compensation could be claimed under Roman law for the negligent
causing of bodily injuries. By contrast, the position in Roman-Dutch law, under the influence of
Germanic customary law, was that pain, suffering and bodily disfigurement as a result of physical
injuries founded an action. 7Although this action was dealt with by most of the old writers in the
same breath as the Aquilian action, the two actions were nevertheless different. In Roman-Dutch
law, the actio legis Aquiliae was restricted to patrimonial damage and thus did not include
compensation for injury to personality as a result of pain and suffering. However, the action for
pain and suffering did not reach its logical end development in Roman-Dutch law. Clearly not
every form of harm relating to physical-mental integrity and resulting from a culpable act was
actionable, as the old authorities only mention compensation for pain, suffering and bodily
disfigurement. No reference was made to other forms of harm related to physical-mental integrity,
such as shock, loss of amenities of life and loss of life expectancy, The action for pain and
suffering has been adopted by South African law and is considered by the courts, just as in Roman-
Dutch law, to be a unique action that cannot be classified with the actio legis Aquiliae or with the
actio iniuriarum. The courts, however, continued to develop the action, with English law playing
an important role, to the extent that it now protects the physical-mental integrity of a person in its
entirety. In addition to pain, suffering and disfigurement, which had already been identified at
common law, this protection is particularly apparent insofar as psychological or mental injury is
equated with physical (bodily) injury in the area of emotional shock and loss of (or shortened) life
expectancy, amenities of life and health are recognised as injuries to personality for which
7
Ibid at 1
9|Page
compensation may be claimed. In this regard, one must nevertheless warn that the classification of
specific forms of harm related to physical-mental integrity should not be taken too far. There is no
sense in further subdividing such harm to the personality by making subtle distinctions and it may
be assumed that all possible forms that should be protected in South African law have probably
already been recognised. Further developments may be accommodated through the extension and
interpretation of existing forms.

Development of law of delict in Zimbabwe (constitution and fundamental human rights.)

Zimbabwe’s modern law of delict is based upon Roman Law as received and developed in Holland
and further developed in Southern Africa. It has been heavily influenced by South African law. 8
The constitution of Zimbabwe further provides with the authority of the application of this law
under section 192 which states the law to be administered by the courts of Zimbabwe is the law
that was in force on the effective date, as subsequently modified. 9 Section 176 grants courts e
inherent power to protect and regulate their own process and to develop the common law or the
customary law, taking into account the interests of justice and the provisions of this Constitution. 10
therefore, the courts also refer to South African law when dealing with delictual matters in
exercising their judicial authority of interpreting the law, safeguarding human rights and freedoms
and the rule of law, to serve justice etc. 11 The constitution of Zimbabwe is the supreme law and any
conduct or law that is inconsistent with it is invalid. 12 certain fundamental rights to which even
juristic persons are entitled are entrenche4d in chapter 4 (the bill of rights). This chapter is
applicable to all law including the law of delict even though they are limited. It does not only
vertically bind the state (the legislature, the executive, the judiciary and all organs of the state) but
also horizontally binds natural and juristic persons. 13 This application of the constitution can take
place in a direct as well as indirect manner.

Direct: Direct vertical application means that the state must respect the fundamental rights 14 except
in so far as the infringement is reasonable and justifiable according to the limitation clause. 15 Direct
horizontal application entails that the courts must give effect to an applicable fundamental right by
applying, and where necessary developing common. The fundamental rights relevant to the law of
delict must find application in this manner.16 These rights include the right to property, the right to
life, the right to freedom and security, the right to privacy, the right to human dignity, the right to
equality,the right to freedom of expression, the right to freedom of religion, the right to freedom of
association, right to freedom of trade,occupation and profession. The entrenchment of
fundamental rights in the constitution enhances their protection. 17 In case of weighing up opposing
fundamental right such as the right to privacy (fama) versus the right to freedom of trade,
occupation and profession, the general principle which have already crystallised with regard to
reasonableness or boni mores criterion for delictual wrongfulness may serve as prima facie
8
G. Feltoe, ‘ A Guide To Zimbabwean Law of Delict’, 2012, pp 4
9
The Constitution ( 2013 Ammendment) 2013 s192
10
Ibid at 7 s176
11
Ibid at 7 s165
12
Ibid at 7 s2
13
Ibid at 2
14
Ibid at 7 s46
15
Constitution, 2013 s 86
16
Ibid at 2, pp 19
17
Idid at 2,p 21
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indications of the reasonableness of a limitation in terms of the bill of rights in chapter 4. In case of
infrengment to a fundamental right, the aggrieved is entitled to approach a competent court for
appropriate relief where in this respect mention should be made of the possibility of the
development of a so called “constitutional delict” that the infringement constitutes a delict thus a
clear distinction should be made between such a constitutional wrong and a delict. 18 not every
constitutional wrong is a delict and vice versa and the damages should not be treated alike.

Indirect application : indirect application means that all private law rules, principles or norms
including those regulating the law of delict are subjected to and must be given content in light of
the basic values of chapter 3 promoting the spirit, purport and objects of the bill will in all
probability deliver the same results as the direct application of the bill, 19and applies in particular to
the so called open ended or flexible delictual principle the boni mores test for wrongfulness, the
imputability test for legal causation and the reasonable person test for negligence as seen in
Carmichele v Minister of Safety and Security said that the net of delictual wrongfulness should be
cast wider by emphasizing its objective nature and by defining it more widely so that it can give
better protection to inter alia recognised fundamental rights. The court was also of the opinion that
fault and legal causation should fulfill a more important role in limiting liability and proper
application of these delictual elements should allay the fear of opening floodgates of liability
without limits. 20

TIMELINE.

In Roman law, the Actio legis aquiliae is an ancient legal concept that deals with liability for
causing harm to someone's property or belongings. Initially, it only applied to specific types of
damage, like injuring a slave or animal, or damaging objects. Over time, it evolved to cover a
wider range of situations, including compensation for financial losses resulting from wrongful acts.
The aquilian action allowed property owners to seek redress for damages, and eventually expanded
to include compensation for bodily injuries. This development paved the way for a broader
application of the aquilian action as a remedy for various types of financial loss caused by
wrongful actions. Under Roman-Dutch Law, the Acquilian liability expanded significantly beyond
the limits of Roman Law. It was no longer necessary to show physical damage to claim damages
under the Aquilian action, and compensation could be sought for financial harm resulting from any
kind of injury to a person's dignity, not just bodily harm. The Aquilian action was extended to
include individuals with personal rights related to property, borrowers, and those leasing the
services of a slave or servant. While these changes broadened the scope of the law, they did not
establish the Aquilian action as a general remedy for wrongful financial harm. Despite differing
interpretations in South African legal decisions, there were instances where the Aquilian law was
applied more broadly than in Roman times, allowing for compensation for various types of losses
caused by someone else's wrongful actions.Under South African law, the concept of Acquilian
liability has evolved through legal cases to the point where it is now believed that any wrongful act
resulting in financial harm can lead to liability. This viewpoint was supported by a statement from
Watermeyer J in Perlman v Zoutendyk, highlighting that in Roman-Dutch law, all unjustifiable

18
Ibid at 2 p23
19
Neethling and Potgieter 2002 THRHR 271-272.
20
Carmichele v Minister of Safety and Security (center for applied Legal Studies Intervening ) 2001 4 SA 938 (CC) 962-
963
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damage is actionable, whether caused intentionally or negligently. The Aquilian action in South
African law has progressed to allow for claims of pure economic loss, not just physical injury.
While there have been differing opinions in the past, it is now established that Aquilian liability
can cover wrongful and culpable financial losses, even if they do not involve physical harm. The
courts have shown a tendency to recognize Aquilian liability for various types of financial harm
caused wrongfully and culpably, despite some exceptions and historical constraints. The law has
adapted over time to broaden the scope of Aquilian liability to address modern circumstances, with
courts being cautious and only extending the action when justified by policy considerations.

Actio iniuriarium

In Roman Law, the Actio iniuriarium was a legal concept that aimed to protect the individual's
personality rights, focusing initially on bodily integrity. The Twelve Tables set penalties for severe
injuries like fractum (bone fractures) and membrum ruptum (limb severance), as well as for less
serious bodily harm known as iniuria. As time passed, Praetorian reforms expanded the protection
of personality to include non-physical interests such as reputation, dignity, chastity, and privacy.
However, the Roman approach to iniuria was casuistic, lacking a structured system for
safeguarding personality rights. The actio iniuriarum addressed impairments to the body,
reputation, and dignity, with dignitas encompassing various personality interests not clearly
distinguished in Roman law. the Actio iniuriarum allowed for the protection of various interests of
personality, even those not explicitly mentioned, under the concept of dignitas. Alongside dignity,
feelings of chastity, privacy, piety, religious sentiments, and family feelings were also considered
deserving of protection in certain cases. It was generally understood that for an iniuria to occur,
there needed to be both an infringement of a recognized personality interest and intent (dolus or
animus iniuriandi) on the part of the wrongdoer. The requirement of contumelia indicated
intentional disrespect towards another's personality, rather than a specific intent to insult or harm
honor. While the Actio iniuriarum evolved into a broad delict aimed at safeguarding personality
interests, it did not provide comprehensive protection. It primarily addressed intentional
infringements on a person's body, reputation, or dignity. The concept of dignitas, however, allowed
for further development in the realm of personality protection, accommodating new facets of
personality deemed worthy of safeguarding.

Under Roman-Dutch Law, the concept of iniuria from Roman law remained largely unchanged.
While different writers had varying perspectives on iniuria, the identification of protected
personality interests did not extend much beyond Roman law standards. Apart from some
considering libertas (freedom) as an additional interest, there was general consensus on protecting
corpus and fama. Similar to Roman law, dignitas (also referred to as hoon and eer) was not clearly
defined as an independent personality interest but rather a collective term encompassing various
aspects of personality. The requirements for liability for iniuria were also similar, with old writers
explicitly stating the need for intent (dolus malus or animus iniuriandi) as a crucial element. The
concept of contumelia, while mentioned, was not specifically defined beyond indicating behavior
showing contempt for a person's personality. In Roman-Dutch law, the actio iniuriarum was
replaced by two actions: the amend profitable for seeking satisfaction and the amende honorable.
The latter action diverged from the actio iniuriarum, allowing an injured party to demand a
retraction of words and an admission of guilt, seeking forgiveness.
In South Africa, the common law delict of iniuria, rooted in Roman-Dutch law, has seen minimal

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change. Courts often refer to Voet's definition, where iniuria is described as a wrongful and
intentional act that violates a person's corpus, fama, or dignitas. While courts recognize and protect
physical integrity (corpus) and reputation (fama) as distinct personality interests, the interpretation
of dignitas varies. Some decisions limit dignitas to dignity or honor, requiring an element of insult
or degradation for an iniuria against dignitas. However, this emphasis on insult is not supported by
common law sources. Other decisions interpret dignitas more broadly, encompassing all legally
protected personality rights except for fama. In O'Keeffe v Argus Printing and Publishing Co, it
was acknowledged that the actio iniuriarum applies to intentional wrongful acts that aggress upon a
person's dignity. This interpretation of dignitas as a collective term for personality interests aligns
with the broader common law understanding and provides a foundation for identifying and
recognizing individual personality rights in South African law.
Pain and suffering.

Under Roman law, compensation for negligent bodily injuries was not permitted, unlike in Roman-
Dutch law influenced by Germanic customary practices. The action for pain and suffering, not
originating from Roman law, was recognized in Roman-Dutch law as distinct from the Aquilian
action. While the Aquilian action focused on patrimonial damage, the action for pain and suffering
addressed injuries to personality resulting from physical harm. However, the development of this
action was limited in Roman-Dutch law, primarily covering pain, suffering, and bodily
disfigurement. South African law adopted this action, considering it unique and separate from
other legal actions. Over time, the courts expanded the scope of the action, drawing from English
law, to protect a person's physical-mental integrity comprehensively. This expanded protection
includes psychological or mental injuries equated with physical harm, encompassing emotional
shock, loss of life expectancy, amenities of life, and health issues. While caution is advised against
overly subdividing harm related to physical-mental integrity, South African law is considered to
have already recognized and protected various forms of such harm. Any further developments can
be accommodated through the interpretation and extension of existing forms of protection.
Case law on pain and suffering.

In the case of Gabatshepe Joseph Makhubele v Road Accident Fund, it involved an action for
damages instituted by the Plaintiff, an adult male, arising from injuries sustained when a collision
occurred between himself and an identified motor vehicle. The court held that the amount awarded
for pain and suffering depends on the extent of pain and suffering caused by the delict, and nothing
else…The determination of general damage has never been an easy task as there is neither
mathematical nor scientific formulae to compute the monetary value on pain and sufferings…. the
court relied on evidence brought forward by expert doctors corroborated by psychologist to be able
to measure the amount to be awarded to the plaintiff’s suffering thus he was awarded the damages.

Furthermore, in the case of Mokoetsana v Road Accident Fund which involved the plaintiff a
major male who instituted action against the Road Accident Fund (“the Fund”) pursuant to a motor
vehicle accident that took place on 13 December 2018 along a road at Senekal, Free State
Province. Plaintiff was a passenger in one of the vehicles at the time of the accident. The Plaintiff
complained of a painful left knee and ankle. He was awarded compensation for pain and suffering.
The court took into account the medical reports detailing the plaintiff’s injuries and their long-term
effects.

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2. CURRENT LEGAL PROCEDURES HAVE BEEN PROFOUNDLY IMPACTED BY
THE DEVELOPMENT OF DELICT LAW IN A NUMBER OF WAYS. THE FOLLOWING
ARE SOME SIGNIFICANT EFFECTS:

Impact of Statutory Reforms (1990s to Present)

1. Consumer Protection Act (CPA)
 The CPA establishes clear guidelines for product liability claims, allowing
consumers to seek redress for injuries caused by defective products. Section 16 of
the CPA holds producers and suppliers liable for harm caused by unsafe goods
 Delta Beverages Pvt Ltd v Onisimo Rutsito (2013)
This Supreme Court decision clarified that manufacturers can be held liable for
damages resulting from defective products. The ruling reinforced the application of
both common law principles and statutory provisions under the CPA, demonstrating
how modern legal frameworks influence traditional delictual claims
 Claims can be initiated by consumers directly or through advocacy groups,
enhancing access to justice.
2. Aquilian Action
 This traditional delictual claim remains relevant, particularly in cases involving
monetary loss due to negligence or wrongful acts. Courts continue to apply the
principles established under Roman-Dutch law while integrating modern statutory
requirements
 Shamhu v Taderera (2023)
This case addresses the delict of adultery, highlighting ongoing debates about its
relevance in contemporary society. The court upheld the delictual claim despite
arguments for its abolition, indicating that societal norms still support legal
repercussions for such conduct
 This case illustrates the tension between traditional legal principles and evolving
social values.

Broader Scope of Liability (20th Century to Present)

Vicarious Liability: This legal concept holds employers accountable for the wrongdoing of their
workers, promoting ethical behavior in the workplace.
Expanded Definitions: New categories of responsibility, such as environmental harm and digital
privacy violations, are now allowed under the expanded definition of delicts.

Increased Emphasis on Human Rights (Post-1994 Post-Apartheid Era)

Judicial Democracy: Courts are more likely to apply delict law interpretations that advance
equality and social justice.
Influence of the Constitution: The application of human rights concepts has resulted in a more
victim-cantered strategy in criminal prosecutions, giving individual rights protection top priority.

Focus on Fault and Negligence (Late 20th Century to Present)

- Negligence Standard: With a stronger focus on the reasonableness of conduct, the standard of
care expected in delict cases has changed.
- Intent and Fault: As actions have an impact on the way cases are argued and determined, lawyers
must now carefully evaluate the intent underlying them.

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Interdisciplinary Approaches (2010s to Present)
- Integration with Other domains: A more comprehensive knowledge of injury and responsibility is
being achieved as a result of the increasing intersections between the domains of environmental
science, psychology, and sociology and tort law.

In summary, the development of delict law has had a significant impact on legal procedures,
moulding the legal environment as a whole as well as how cases are handled. Delinquent law will
probably continue to evolve along with society ideals, making it more appropriate and relevant for
dealing with the intricacies of contemporary life.

2. WHAT ARE THE KEY AMENDMENTS AND NEW LAWS THAT HAVE SHAPED
DELICT IN ZIMBABWE TAKING NOTE OF THE DATES, KEY MOMENTS AND
LEGISLATIVE CHANGES.
The law of delict in Zimbabwe has evolved significantly through various amendments and new
laws. Here are some key moments and legislative changes:

1. Constitution of Zimbabwe (2013)

The 2013 Constitution introduced several fundamental rights and values that have influenced the
development of delict. These include the right to human dignity, personal security, and the right to
a fair hearing. Courts have increasingly used these constitutional provisions to shape the common
law of
delict, ensuring it aligns with modern societal values.

2. Zimnat Insurance Co Ltd v Chawanda (1990)

Although predating the 2013 Constitution, this case is pivotal as it set a precedent for the dynamic
interpretation of delictual principles. The court emphasized that the law must adapt to changing
societal conditions.This principle has encouraged courts to adopt a more flexible and progressive
approach when dealing with delictual claims, ensuring that the law remains relevant and responsive
to contemporary issues.The case has paved the way for expanding the scope of delictual liability.
Courts have been more willing to recognize new forms of harm and new categories of plaintiffs
who can claim for delictual
damages. This has been particularly significant in cases involving psychological harm,
environmental damage, and public authority liability.The decision in Zimnat Insurance Co Ltd v
Chawanda has influenced the standards of negligence applied by courts. It underscored the
importance of considering the context and circumstances in which the alleged negligent act
occurred. This has led to a more nuanced and
context-sensitive application of negligence principles.

3. Criminal Law (Codification and Reform) Act [Chapter 9:23] (2004)

The Criminal Law (Codification and Reform) Act [Chapter 9:23] (2004) has had a significant
influence on the law of delict in Zimbabwe. Here are some keyways it has shaped delictual
principles:
• Codification of Offenses
The Act codifies various offenses that were previously governed by common law, providing clear

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definitions and guidelines. This codification has helped standardize the application of delictual
principles, making it easier for courts to interpret and apply the law consistently.
• Introduction of New Offenses
The Act introduced new offenses that have implications for delictual liability. For example,
offenses
related to public violence, criminal nuisance, and malicious damage to property have direct
relevance to delictual claims for damages.
• Clarification of Defenses
By outlining specific defenses available in criminal cases, the Act has indirectly influenced the
defenses available in delictual claims. For instance, defenses such as necessity, duress, and self-
defense are now more clearly defined, providing a framework for their application in delictual
cases.
• Influence on Negligence Standards
The Act has reinforced the importance of negligence standards in both criminal and delictual
contexts. By codifying what constitutes negligent behavior in various scenarios, it has provided a
clearer basis for establishing delictual liability for negligence.
4. Criminal Law Codification and Reform Amendment Bill (2022)
This bill introduced significant changes, including:
Section 22A: Creating the offense of “wilfully injuring the sovereignty or national interest of
Zimbabwe.” Mandatory minimum sentences for rape and other serious crimes.
5. Judicial Developments
Judicial developments have indeed played a pivotal role in shaping the law of delict in Zimbabwe.
Here are some keyways in which courts have influenced delictual principles through case law:
• Expansion of Negligence Liability
Courts have broadened the scope of negligence to include various forms of harm and new
categories of plaintiffs. For instance, they have recognized claims for psychological harm and
economic loss, which
were traditionally not covered under delictual liability. This expansion ensures that victims of
negligence can seek redress more comprehensively.
• Public Authority Liability
Judicial decisions have increasingly held public authorities accountable for their actions or
omissions. Courts have emphasized that public bodies owe a duty of care to individuals and can be
held liable for failing to meet this duty. This has been particularly significant in cases involving
police negligence,
medical malpractice in public hospitals, and failures in public infrastructure maintenance.
• Constitutional Values
Courts have drawn on constitutional values such as human dignity, equality, and the right to a fair
hearing to shape delictual principles. By aligning delictual liability with these values, courts ensure
that the law of delict promotes justice and fairness. For example, in cases of wrongful arrest or
detention, courts have awarded damages based on the infringement of constitutional rights.
• Dynamic Interpretation
Following the precedent set in Zimnat Insurance Co Ltd v Chawanda (1990), courts have adopted a
dynamic interpretation of delictual principles. This approach allows the law to evolve in response
to changing societal conditions and emerging issues. It has led to a more flexible and adaptive
application of delictual rules.
• Case Law Examples

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Makwindi v The Minister of Home Affairs (1989): This case established that the state could be
held liable for the wrongful acts of its employees, such as police officers, under the principle of
vicarious liability.
Mudzuru & Another v The Minister of Justice, Legal and Parliamentary Affairs & Others (2015):
The Constitutional Court held that child marriages were unconstitutional, reinforcing the protection
of minors and influencing delictual claims related to child abuse and exploitation.
• Influence on Remedies
Judicial decisions have also influenced the types of remedies available in delictual claims. Courts
have awarded a range of damages, including compensatory, punitive, and constitutional damages,
to ensure that victims receive adequate redress for their harm.
Key Takeaways
Broadened Negligence: Expanded scope of negligence liability.
Public Authority Accountability: Increased liability of public authorities. Constitutional
Alignment: Integration of constitutional values into delictual principles. Dynamic Interpretation:
Flexible and adaptive application of delictual rules.
Influential Cases: Landmark cases shaping delictual liability. Enhanced Remedies: Diverse range
of remedies for victims.

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