Q1 Role of wrongfulness in law of delict
Wrongfulness is an element of delictual liability. It helps courts decide:
Should the defendant be held legally responsible for the harm caused?
Or would imposing liability be too costly or unfair in social and economic terms?
Wrongfulness limits liability in cases where holding someone responsible would be
unreasonable or excessive
Q2 The fundamental questions in this enquiry:
1. Should the court, impose liability on the defendant in these
circumstances?
2 Is it reasonable to compensate the plaintiff for the loss, and for the
defendant to bear the loss
Q3 When is the issue of wrongfulness likely to arise?
1. Wrongfulness is usually not disputed when someone's actions directly cause harm
(like injury or property damage).
Why? Harm caused by a positive act is presumed wrongful.
What happens? The court assumes the harm was wrongful unless proven otherwise.
Can this change? Yes, the defendant can challenge this presumption, such as by
claiming self-defense or another legal justification
wrongfulness usually causes problems in the following cases:
2. Where conduct is an omission or a statement.
3. Where the harm is pure economic loss or psychiatric injury.
4. Where there is a conflict of rights (e.g. defamation - plaintiff complains that right to a
good name has been infringed by defendant; defendant counters this by stating that he
was exercising his right to freedom of speech).
Courts use wrongfulness to decide if a violated interest deserves
legal protection and whether the harm falls within the defendant’s
legal responsibility
Q4 Applying the general criteria for determining wrongfulness:
1. General reasonableness
2. The legal convictions prevailing in the community
3. The boni mores)
General criteria
In delict: wrongfulness takes into account both conduct and
consequences of conduct.
Conduct and consequences do not necessarily happen at the same
time and place.
Consequence may follow immediately after (or simultaneously with)
conduct, e.g. where defendant slaps plaintiff’s face.
Or divided longer in time e.g. defendant builds an unsafe wall which
collapses after three weeks and injures plaintiff.
Act (building of wall) and consequence (physical injury when wall
collapses)
Exception to above rule is where crime is defined in terms of
causing specific result.
Here we have to look at conduct and harmful consequences (death of
another).
Example: X races down Nelson Mandela Drive at 120 km/h, no accident or
harm, caught in “speed trap”.
Will act be considered wrongful in delict? NO
May be criminally liable
Wrongfulness as matter of law
• This means that courts usually do not hear evidence on the issue of
wrongfulness.
• Plaintiff has to make and prove factual allegations from which wrongfulness
can be deduced.
SU 6.2 Legal conviction
*Explain the meaning of the concept "legal convictions of the
community" (boni mores)*
The boni mores principle refers to the legal and moral values accepted
by society, which help determine whether an act is wrongful in delict
law
It ensures that legal decisions align with community standards of
fairness and justice.
*Q2 Indicate which interests are weighed up against each other in
the determining of wrongfulness
- When enquiring into wrongfulness, a court will weigh the interests of the
people involved, and also the interest and convictions of the community.
• The personal views of the judge, the parties, or a segment of the
community are not the measure of what should regard as lawful or wrongful
Q3 Identify the focus of the boni mores criterion
The boni mores criterion focuses on whether the defendant’s conduct aligns
with the legal convictions of society
court decides if the community views the harm as wrongful and if it
should lead to legal responsibility in delict cases
Q4 Set out how the courts determine what the legal convictions of
the community are
Judge must determine and interpret legal convictions with reference to –
1. legal policy
2. legal rules
3. court decisions where legal convictions already expressed
Q5 Motivate why the boni mores criterion is regarded as flexible
Means courts can adapt law to reflect changing values and needs of
community.
It requires a flexible reasoning process that considers rights,
relationships, laws, and policies.
One can focus on the Following to determine wrongfulness –
(1) Infringement of a right
(2) Breach of legal duty
(3) deciding which test to use depends on facts and whether it is easier
to identify right or duty
Q6 Explain why it is said that the boni mores criterion is an
objective one and to also outline the exceptions to this principle.
1. Involves public policy and value judgment.
2. The criteria for determining wrongfulness reflects societal values
3. Not concerned with what community regards as socially, morally,
ethically or religiously right or wrong.
Q7 Describe when the boni mores criterion is applied
The boni mores criterion is applied when courts assess
wrongfulness in delict case
Q8 Describe the influence of the Constitution on determining the
legal convictions of the communityQ
- Constitution and Bill of Rights influence the legal convictions of the
community
• Means that legal convictions of the community must now be aligned with
constitutional values and norms.
• Example: Carmichele v Minister of Safety and Security
