Actio iniuriarum

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The actio iniuriarum is an action for delict which "not only seeks to protect an individual's dignity and reputation but also his or her physical integrity." [1]

Delict is a term in civil law jurisdictions for a civil wrong consisting of an intentional or negligent breach of duty of care that inflicts loss or harm and which triggers legal liability for the wrongdoer; however, its meaning varies from one jurisdiction to another. Other civil wrongs include breach of contract and breach of trust. Liability is imposed on the basis of moral responsibility, i.e. a duty of care or to act, and fault (culpa) is the main element of liability. The term is used in mixed legal systems such as Scotland, South Africa, Louisiana and the Philippines, but tort is the equivalent legal term used in common law jurisdictions.

Dignity is the right of a person to be valued and respected for their own sake, and to be treated ethically. It is of significance in morality, ethics, law and politics as an extension of the Enlightenment-era concepts of inherent, inalienable rights. The term may also be used to describe personal conduct, as in "behaving with dignity".

Reputation or image of a social entity is an opinion about that entity, typically as a result of social evaluation on a set of criteria.

Contents

Harm or loss

The harm or loss which gives rise to the actio iniuriarum is a violation of a personality interest, usually classified, as per the definition above, under the following three headings:

Conduct

The delictual conduct required for a successful application of the action comes usually in the form of statements or positive conduct. Seldom is it an omission. [3]

Causation

Causation is normally not an issue in respect of the actio iniuriarum, but it may become one in some instances, as in deprivation-of-liberty cases. [4]

Wrongfulness

Conduct will be wrongful in terms of this action if it is objectively unreasonable and without lawful justification: "Having a valid defence means that the conduct is justified and the behaviour is not wrongful or unlawful." [5]

Fault

There must be fault in the form of intention, although this is controversial, as some in South Africa contend that the action has developed in the last century to include some instances, such as those involving deprivation of liberty, where liability is strict, and others such as defamation involving the media, where liability is negligence-based. [6]

The South African law of delict engages primarily with "the circumstances in which one person can claim compensation from another for harm that has been suffered." JC Van der Walt and Rob Midgley define a delict "in general terms [...] as a civil wrong," and more narrowly as "wrongful and blameworthy conduct which causes harm to a person." Importantly, however, the civil wrong must be an actionable one, resulting in liability on the part of the wrongdoer or tortfeasor.

See also

Related Research Articles

A tort, in common law jurisdictions, is a civil wrong that causes a claimant to suffer loss or harm resulting in legal liability for the person who commits the tortious act.

Tortious interference, also known as intentional interference with contractual relations, in the common law of torts, occurs when one person intentionally damages someone else's contractual or business relationships with a third party causing economic harm. For example, someone could use blackmail to induce a contractor into breaking a contract or they could obstruct someone's ability to honor a contract with a client by deliberately refusing to deliver necessary goods.

Volenti non fit iniuria is a common law doctrine which states that if someone willingly places themselves in a position where harm might result, knowing that some degree of harm might result, they are not able to bring a claim against the other party in tort or delict. Volenti applies only to the risk which a reasonable person would consider them as having assumed by their actions; thus a boxer consents to being hit, and to the injuries that might be expected from being hit, but does not consent to his opponent striking him with an iron bar, or punching him outside the usual terms of boxing. Volenti is also known as a "voluntary assumption of risk."

The following outline is provided as an overview of and introduction to tort law:

Rapina – theft with violence – was a delict of Roman law.

South African property law

South African property law regulates the "rights of people in or over certain objects or things." It is concerned, in other words, with a person's ability to undertake certain actions with certain kinds of objects in accordance with South African law. Among the formal functions of South African property law is the harmonisation of individual interests in property, the guarantee and protection of individual rights with respect to property, and the control of proprietary relationships between persons, as well as their rights and obligations. The protective clause for property rights in the Constitution of South Africa stipulates those proprietary relationships which qualify for constitutional protection. The most important social function of property law in South Africa is to manage the competing interests of those who acquire property rights and interests. In recent times, restrictions on the use of and trade in private property have been on the rise.

Minister of Safety and Security v Hamilton is an important case in South African law, in particular the law of delict, but with implications also for criminal law. It was heard before the Supreme Court of Appeal (SCA) on 21 August 2003, with judgment handed down on 26 September.

Furtum was a delict of Roman law comparable to the modern offence of theft despite being a civil and not criminal wrong. In the classical law and later, it denoted the contrectatio ("handling") of most types of property with a particular sort of intention – fraud and in the later law, a view to gain. It is unclear whether a view to gain was always required or added later, and, if the latter, when. This meant that the owner did not consent, although Justinian broadened this in at least one case. The law of furtum protected a variety of property interests, but not land, things without an owner, or types of state or religious things. An owner could commit theft by taking his things back in certain circumstances, as could a borrower or similar user through misuse.

South African criminal law is the body of national law relating to crime in South Africa. In the definition of Van der Walt et al, a crime is "conduct which common or statute law prohibits and expressly or impliedly subjects to punishment remissible by the state alone and which the offender cannot avoid by his own act once he has been convicted." Crime involves the infliction of harm against society. The function or object of criminal law is to provide a social mechanism with which to coerce members of society to abstain from conduct that is harmful to the interests of society.

In Roman law, contracts could be divided between those in re, those that were consensual, and those that were innominate contracts in Roman law. Although Gaius only identifies a single type of contract in re, it is commonly thought that there were four, as Justinian identifies: mutuum, commodatum, depositum (deposit) and pignus (pledge).

Damnum iniuria datum was a delict of Roman law relating to the wrongful damage to property. It was created by the Lex Aquilia in the third century BC, and consisted of two parts: chapter one, which dealt with the killing of another's slave or certain types of animal; and chapter three which related to other types of property. It was widely extended both by reference to the words of the statute themselves and by the Praetor.

Iniuria was a delict in Roman law for the outrage caused by a false statement made against another person.

<i>Hall v Hebert</i>

Hall v Hebert is a leading tort law case decided by the Supreme Court of Canada on the defences of contributory negligence and ex turpi causa non oritur actio.

Fourway Haulage SA (Pty) Ltd v SA National Roads Agency Ltd is an important case in South African law. It was heard in the Supreme Court of Appeal on 5 November 2008, with judgment handed down on 26 November. The judges were Scott JA, Farlam JA, Brand JA, Lewis JA and Jafta JA. JH Dreyer SC appeared for the appellant, and AC Ferreira SC for the respondent.

Kruger v Coetzee is an important case in South African law, in particular in the law of delict and on the question of negligence.

Minister of Police v Rabie is an important case in the South African law of delict. It was heard in the Appellate Division on September 3, 1984, with judgment handed down on September 27, 1985. The presiding officers were Jansen JA, Joubert JA, Cillié JA, Van Heerden JA and Vivier AJA. The appellant was represented by the State Attorney, Johannesburg. The respondent's attorneys were Mather & Sim, Johannesburg, and McIntyre & Van der Post, Bloemfontein.

K v Minister of Safety and Security is an important case in the South African law of delict and South African constitutional law. It was heard by the Constitutional Court on May 10, 2005, with judgment handed down on June 13. Langa CJ, Moseneke DCJ, Madala J, Mokgoro J, O'Regan J, Sachs J, Skweyiya J, Van der Westhuizen J and Yacoob J presided. W. Trengove SC appeared for the applicant; PF Louw SC appeared for the respondent. The applicant's counsel was instructed by the Women's Legal Centre, Cape Town. The respondent's attorney was the State Attorney, Johannesburg.

Zealand v Minister of Justice is an important case in South African constitutional law.

References

Notes

  1. ↑ Burchell 212.
  2. ↑ Loubser 26.
  3. ↑ Loubser 26.
  4. ↑ Loubser 26.
  5. ↑ Loubser 26.
  6. ↑ Loubser 26.
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