Understanding the concept of delict within the legal sphere is crucial given its role in

protecting individual rights and maintaining social order. Though often compared to
crime and contract law, delict stands as a distinct legal domain, primarily concerned
with civil wrongs. Moreover, delict law plays a significant role in shaping interpersonal
relationships within society by establishing standards of conduct that protect
individuals from harm. Its impact extends beyond individual cases; it influences
social norms and public policy regarding safety and responsibility.1 By examining these
dimensions—understanding delict in its legal context, its historical trajectory, its
purposes within society, and its broader implications—this essay will elucidate why the
law of delict remains vital in Zimbabwean jurisprudence today. Through this
exploration, we can appreciate how delict not only serves as a tool for justice but also
fosters a culture of accountability essential for the nation's social fabric. This essay
aims to elucidate the definition, nature, and elements of delict, trace its historical
evolution, and reveal the underlying purposes of delict law in contemporary society
through relevant examples and case studies.

The term delict is derived from the Latin word delictum meaning wrong. In English
and American law, it is equivalent to tort, coming from the word tortus, meaning
twisted or wrong. A delict can be defined as a wrongful conduct (act or omission) that
causes harm to another person resulting in legal liability for the wrongdoer, entitling
the aggrieved party to claim damages or seek other remedies. In Zimbabwean
jurisdiction, which follows the Roman-Dutch Principles, delict falls under the broader
category of civil wrong doings. It encompasses various unlawful acts that, while not
constituting criminal behavior, result in civil liability. For instance, negligence,
defamation, and trespass are all considered delicts.2

Delict law’s primary focus is the redress and compensation of harm rather than
punishment. Consequently, it serves a dual function: to compensate the victim and to
deter potential wrongdoers. This system ensures that those who suffer from wrongful

1
Neethling, J, (2010), Law of Delict, Dubarn
2
Loubser, M, (2012), The Law of Delict in South Africa, Oxford University Press Southern Africa (Ptv)
Ltd
 3
acts receive adequate compensation while discouraging similar behavior in the future.

Delict must be distinguished from crime and contract law, as it occupies a separate
space within the legal framework. While criminal law deals with offenses against the
state and society as a whole, delict is concerned with civil wrongs between individuals.
For instance, if an individual assault another, criminal law addresses the offense with
state-imposed penalties, whereas delict law permits the victim to seek compensation
for their injuries. Delictual actions are initiated by the injured individual, referred to
as the plaintiff, who seeks compensation, as opposed to criminal proceedings which are
initiated by the state. As such in delictual actions, the parties are the wrongdoer and
the person harmed. In criminal cases it is the state and the accused. The overlap is
that many wrongs can lead to both criminal prosecution and civil claim. An example
includes negligent driving resulting in injury of another. The wrongdoer may be
punished through criminal law and also required to compensate the victim through
delictual claim. However, some delicts cannot be crime like adultery or seduction4.

Contract law, on the other hand, governs agreements between parties. A breach of
contract occurs when one party fails to fulfill their contractual obligations. Unlike
delict, which arises from wrongful acts independent of prior agreement, contract law
disputes emerge from violations of agreed-upon terms. For example, non-delivery of
goods after payment is a breach of contract, not a delict5. A notable case is Lillicrap,
Wassenaar and Partners v Pilkington Brothers6 (SA) (Pty) Ltd. The court held that a
legal duty in delict did not fit comfortably into a detailed business contract for
professional services, particularly where an action in delict could circumvent the
contractual terms and create a trap for the unwary within the contractual
relationship. The denial of an action in delict is limited to cases where the negligence
alleged consists of a breach of contract

The essential elements of a delict, which must be proven to establish liability, are harm,

3
Feltoe, G, (2006), A Guide to Zimbabwean Law of Delict, Zimbabwe
4
Feltoe, G, (2006), A Guide to Zimbabwean Law of Delict, Zimbabwe
5
Loubser, M, (2012), The Law of Delict in South Africa, Oxford University Press Southern Africa (Ptv)
Ltd
6
Lillicrap, Wassenaar and Partners v Pilkington Brothers6 (SA) (Pty) Ltd.
conduct, causation, wrongfulness, and fault. These elements are used as devices to
7
balance the interests of plaintiffs, defendants, and society .

Harm can also be referred to as Damage or Loss. There can be no delict without legally
recognized harm, either realized or potential. The harm element is considered the
cornerstone of delictual problem-solving. Harm is the starting point for determining if
a delict occurred. It clarifies who the plaintiff is and what they seek compensation for.
The nature of the harm also determines the nature of the action to use for seeking a
remedy. Not all factual violations of a person's interests will necessarily be actionable.
The law must recognize the type of harm as worthy of compensation. The law
distinguishes between past or accrued loss and prospective loss. A person can claim for
prospective harm8. Harm can be patrimonial or non-patrimonial. Patrimonial harm
refers to damage to a person's estate or financial loss, and is typically associated with
the Aquilian action. On the other hand, non-patrimonial harm refers to harm to
personality interests, such as dignity, reputation, and bodily integrity and is typically
associated with the actio iniuriarum this can also include pain and suffering.9 The
court considers whether a person has suffered harm that is recognized in delict. For
instance, parents' pain and suffering due to their child's coma is not a type of harm
recognized by the law of delict.10

There must be some voluntary conduct on the part of the defendant. Conduct can
take various forms, including a positive act, an omission, or a statement. Identifying
the conduct helps determine the possible defendants. Firstly, liability for omissions
typically arises when there is a legal duty to act positively and prevent harm11. Like in
the case of Minister van Polisie v Ewels, the court established that there can be
delictual liability for a mere omission when a legal duty exists based on reasonableness
and public policy. In this case, a senior policeman was held liable for failing to prevent

7
Neethling, J, (2010), Law of Delict, Dubarn
8
Potgieter, J, M, et al, (2003), Law of Damages
9
Boberg, P, (1984), The law of Delict 1: Acqullian Liability
10
Union Government (Minister of Railways and Harbours) v Warneke
11
Neethling, J, (2010), Law of Delict, Dubarn
 12
an assault by an off-duty officer . In the case of harm caused by animals, liability is
based on a different principle than voluntary human conduct.

A causal connection must exist between the defendant's conduct and the harm
suffered by the plaintiff. There are two aspects to causation, factual causation and
legal causation. Factual causation refers to a factual inquiry into whether the
defendant's conduct was a necessary antecedent for the harm. The primary test for
factual causation is the "but-for" test (also known as the conditio sine qua non test).
This asks whether the harm would have occurred but for the defendant's conduct. A
defendant's conduct must have "caused or materially contributed" to the harm. The
"but-for" test should be applied with common sense and in a way that achieves a just
result13. Minister of Police v Skosana, the court described the test for factual
causation as the 'but-for' test and an enquiry into whether the conduct materially
contributed to the harm. Legal causation on the other hand, is a juridical inquiry into
whether the link between conduct and harm is sufficiently close for legal liability. It
limits liability to those consequences that can fairly be attributed to the defendant.
The test for legal causation is flexible and based on policy considerations of
reasonableness, fairness, and justice14. Courts consider whether the factual link is
sufficiently strong and closely connected to the conduct to warrant liability.

Wrongfulness can also be referred to as unlawfulness. Wrongfulness is a

determination of whether conduct is sufficiently unreasonable or unacceptable for
the law of delict to impose liability. It is an objective assessment of whether the
defendant's conduct infringes upon a legally protected interest. It is based on the
"legal convictions of the community" and considerations of public and legal policy,
which involves balancing conflicting rights or interests. Wrongfulness also includes
consideration of factors such as indeterminate liability, public administration,
alternative remedies, or free competition. The concept of a "legal duty" is central to
determining wrongfulness, particularly in cases of omissions and pure economic loss15.

12
Minister van Polisie v Ewels
13
Neethling, J, (2010), Law of Delict, Dubarn
14
Minister of Police v Skosana
15
Loubser, M, (2012), The Law of Delict in South Africa, Oxford University Press Southern Africa (Ptv)
In the case of Minister of Safety and Security v Carmichel, the court emphasized that
wrongfulness depends on a judicial determination of whether it would be reasonable
16
to impose liability .

Lastly there is fault which is also referred to as culpability. Fault means that a person
can be blamed and held responsible for harm wrongfully caused to another. Fault has
two components capacity where a person must have had the capacity to be at fault
and culpability where a person must have acted either intentionally or negligently.
Intention (dolus) involves directing one's will towards a particular result and being
aware of the wrongfulness of the conduct Animus iniuriandi is a specific form of
intention related to the actio iniuriarum, where there is an intent to injure. Negligence
(culpa) involves a failure to act as a reasonable person would have acted in the
circumstances. The test for negligence is whether a reasonable person in the
defendant’s position would have foreseen the possibility of harm, and taken
reasonable steps to prevent it.17 In the case of Kruger v Coetzee, the classic test for
negligence was established as whether a reasonable person in the position of the
defendant would foresee the reasonable possibility of harm to another and would
take reasonable steps to prevent the harm, and if the defendant failed to take such
steps18.

One of the primary purposes of delict law is to protect individual rights. Delict law
provides a legal framework through which individuals can seek redress for harm
suffered due to wrongful acts, ensuring that their rights are upheld. By allowing
victims to claim compensation, delict law serves as a protective shield, safeguarding
personal and property rights from infringement19. For example, in cases of medical
malpractice, delict law allows patients to seek compensation for injuries caused by
negligent healthcare providers. This not only ensures justice for the patient but also
upholds the integrity of the medical profession by holding practitioners accountable

Ltd
16
Minister of Safety and Security v Carmichel
17
Feltoe, G, (2006), A Guide to Zimbabwean Law of Delict, Zimbabwe
18
Kruger v Coetzee,
19
Neethling, J, (1996), Law of Personality
 20
for their actions . Fadzayi Mahere v Peina Gappah HC 2020.

Delict law promotes fairness and justice by ensuring that those responsible for causing
harm are held accountable. This accountability is crucial in maintaining a just society
where individuals and entities are deterred from engaging in wrongful conduct.
Through compensatory remedies, delict law aims to restore victims to their original
position before the harm occurred, thus achieving a sense of fairness. For instance, in
cases of product liability, delict law mandates that manufacturers compensate
consumers for harm caused by defective products. This principle of strict liability
ensures that manufacturers take necessary precautions in the production process,
thereby promoting fairness and consumer safety21.

Another vital purpose of delict law is to deter harmful conduct. By imposing legal
consequences for wrongful acts, delict law dissuades individuals and entities from
engaging in behavior that could cause harm to others. The prospect of legal liability
and financial compensation serves as a powerful deterrent, encouraging adherence to
societal norms and standards. For example, in environmental law, delict principles are
applied to hold polluters accountable for damage caused to the environment. High-
profile cases, such as the Deepwater Horizon oil spill, demonstrate how delict law can
be used to impose substantial penalties and compel businesses to adopt safer practices
to avoid future liability22.

In conclusion, delict law, with its roots in Roman law and its evolution through key legal
thinkers and modern legal systems, serves essential purposes in contemporary society.
It protects individual rights, promotes fairness and justice, and deters harmful
conduct. Through numerous case studies and its role in civil litigation, delict law
manifests its significance in addressing civil wrongs, compensating victims, and
influencing social and economic behavior. As legal systems continue to evolve, the
principles of delict will remain crucial in maintaining order, justice, and equity within
the dynamic fabric of society.

20
Fadzayi Mahere v Peina Gappah HC 2020.
21
Feltoe, G, (2006), A Guide to Zimbabwean Law of Delict, Zimbabwe
22
Feltoe, G, (2006), A Guide to Zimbabwean Law of Delict, Zimbabwe
Bibliography
TEXT
Neethling, J, (2010), Law of Delict, Dubarn
Loubser, M, (2012), The Law of Delict in South Africa, Oxford University
Press Southern Africa (Ptv) Ltd
Feltoe, G, (2006), A Guide to Zimbabwean Law of Delict, Zimbabwe
Potgieter, J, M, et al, (2003), Law of Damages
Boberg, P, (1984), The law of Delict 1: Acqullian Liability

CASE LAW
Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd.
Union Government (Minister of Railways and Harbours) v Warneke
Minister van Polisie v Ewels
Minister of Police v Skosana
Minister of Safety and Security v Carmichel
Kruger v Coetzee,
Fadzayi Mahere v Peina Gappah HC 2020.