Law of Delict Notes Actio iniuriarum PDF

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Law of Delict Notes Actio iniuriarum
summary of cases relevant to actio iniuriarum...

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Law of Delict Notes – Semester 2 2021 •

Action injuriarum is the general remedy for personality rights.

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An iniuria in principle consists of (a) an infringement of a personality right in a (b) wrongful and (c) intentional way.

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Generally acceptable classification of iniuriae found in Roman Law is that the the actio iniuriarum was applicable to impairments of corpus, fama, and dignitas.

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Modern law has added the rights to privacy and identity to the list.

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Common-law concept is very broad, encompasses dignity in its ordinary meaning, privacy and identity.

Note: the same source or event can simultaneously give rise to several claims in delict under the various actions.

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The action protects personality interests: corpus (bodily integrity); fama (reputation); dignitas (dignity); Identity; and privacy.

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The actio injuriarum is available where there is a wrongful and intentional infringement of one of these personality interests. (In principle therefore, actio injuriarum is available for every intentional infringement of a person’s corpus, fama or dignitas)

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The harm element (cornerstone of any action in delict) is the infringement of the personality interest (i.e. the factual disturbance of a person’s bodily integrity, reputation, dignity, identity or privacy). This must be done in a wrongful manner and must usually be accompanied by fault in the form of intention.

EXAMPLE: When a person says something that has the effect of lowering another person’s reputation in the eyes of the reasonable person, that person’s reputation has been damaged (factual infringement of the right to fama). That infringement may or may not be wrongful and intentional. The court will need to scrutinise the facts and circumstances of the case to determine whether or not the defamation was wrongful and intentional. Wrongfulness is judged in accordance with the general criterion of reasonableness (ordinary Aquilian action principles apply). Intention can sometimes be in an

attenuated (limited) form (no need for consciousness of wrongfulness), such as in cases of wrongful arrest and detention, as well as seduction. The same event/source can give rise to simultaneous claims under the Aquilian action, the action for pain and suffering and the actio injuriarum (i.e. the various claims can sometimes overlap).

Example: John assaults Vusi in the office, in front of Vusi’s colleagues. As a result of the assault, Vusi cannot work for a week and receives medical treatment at a hospital. Vusi would potentially have three claims arising from this one incident. He could claim special damages for patrimonial losses (under the Aquilian action), general damages for pain and suffering experienced by him during and after the assault (under the action for pain and suffering), and damages for the impairment of his dignity (under the actio injuriarum). E.g. April v Min of Safety and Security, where the court noted that ‘Even though these claims arise from the same source or event, the claims remain distinct. AN INIURIA CAN REFER TO – - any wrongful act (the ordinary conception of wrongfulness); - a wrongful and intentional infringement of a person’s bodily integrity, dignity or reputation; - the impairment of dignity in the form of an insult where contumelia (humiliation) is present. contumelia – a humiliating act which results in the impairment of a person’s dignity.

CORPUS BODILY INTEGRITY 

Protected against every factual infringement of a person’s physique or psyche (mental integrity).

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Physical infringements may occur with or without violence and with or without pain.

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Even as an infringement of the senses, whereby a physical feeling of disgust, discomfort or repugnance is caused, is included. Psychological harm, by contrast, occurs mostly as a result of fear or emotional shock.

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In order to establish liability under the actio iniuriarum, the bodily infringement need not be accompanied by contumelia in the sense of insult.

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The following requirements must be present: Infringement must not be of trivial character; must be wrongful; and it must be committed.

Violent infringements: 

Assault (Bennett v Minister of Police 1980 (3) SA 24 (C)) (Court concluded that the fact is that not all assaults necessarily involve contumelia. It depends upon the circumstances. A policeman who unlawfully shoots a person does not normally impair that person’s dignity; a robber who stabs his victim does not normally insult the victim by so doing. But an assault by a policeman with a baton is probably on a different footing. I would think that this does involve a measure of contumelia objectively regarded). The court noted here that ‘There is a very large subjective element in any injuria, and if plaintiff feels aggrieved in his dignity he must say so’.

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rape (N v T 1994 (1) SA 862 (C))

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infecting someone with HIV (Venter v Nel 1997 (4) SA 1014 (D))

Wrongful arrest/detention and malicious arrest/detention These are regarded as violations of the right to bodily integrity, as personal liberty is compromised when a person is arrested wrongfully/maliciously. Wrongful arrest and detention consist in intentionally depriving a person of his/her liberty or physical freedom without lawful justification. As a form of iniuria, wrongful deprivation of liberty consists in a person being (a) intentionally (b) deprived of his physical freedom (c) without lawful justification. (Must be judged objectively) When a police officer arrests and detains a person on reasonable grounds, as provided for in the Criminal Procedure Act 51 of 1977, there is a lawful justification for the arrest and detention, and the conduct is therefore not actionable.

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Deprivation of personal freedom (Thandanani v Minister of Law and Order 1991 (1) SA 702 (E) at 707B) the court set out the rationale for liability as ‘…sight must not be lost of the fact that the liberty of the individual is one of the fundamental rights of a man in a free society which should be jealously guarded at all times and there is a duty on our courts to preserve this right against infringement

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Arrest is usually followed by detention, if initial arrest is unlawful, detention will also be wrongful.

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Malicious arrest and detention – this is similar to wrongful arrest/detention, but covers the situation where a defendant sets in motion and ostensibly lawful legal process (valid judicial process) (The defendant makes improper use of the legal machinery of the state, either through a policeman acting on his own discretion or through a valid warrant, in depriving the plaintiff of his liberty, this action is carried out by the machinery of the state through a valid judicial process) which results in the plaintiff being arrested or detained. Here then, the plaintiff would have to prove that the defendant instigated the deprivation of liberty; that the instigation was without reasonable and probable cause; and that the defendant acted animo iniuriandi, in order to succeed in an action based on the malicious deprivation of liberty.

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Where police fail to inform prosecutor of lack of evidence justifying arrest and detention of a person pending criminal trial, detention will be unlawful and right to freedom and security in terms of section 12(1) (a) of the constitution is potentially infringed.

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The person who actually interferes in the plaintiff’s bodily integrity (e.g. a magistrate) is acting lawfully, but the lawful sequence of events was actuated by the malice (improper motive or reason) of the defendant.

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The usual requirements of wrongfulness, harm and intention apply. Intention will always involve both direction of the will and consciousness of wrongfulness, as a person who acts maliciously knows his conduct is wrongful.

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Distinguishing feature in such cases is that although defendant’s conduct is linked to ultimate result, immediate or proximate cause for the detention was not

the defendant’s conduct but someone else’s awful conduct. (Magwabeni v Liomba (198/13)[2015] ZASCA 117 (11 Semptember 2015) par 9). Once the plaintiff has established that a deprivation of liberty (physical means of obstruction/ or at least that “ a person was being subjected to physical control” even if only verbally) has occurred, the courts presume wrongfulness and the onus will be on the defendant to justify his actions (Minister of Law and Order v Hurley 1986 (3) SA 568 (A) [court held that ‘an arrest constitutes an interference with the liberty of the individual concerned, and it therefore seems to be fair and just to require that the person who arrested or caused the arrest of another person should bear the onus of proving that his action was justified in law] and Zealand v Minister of Justice and Constitutional Development 2008 (2) SACR 1 (CC)). [once the plaintiff has established the deprivation of liberty, courts presume wrongfulness and the defendant then has to justify the action. A failure to do so will lead to a wrongful conclusion.] 

An ulterior or improper motive for arresting/detaining a person is not a requirement for wrongful arrest/detention, but is an indicator of wrongfulness, because an arrest or detention based on malice would not be reasonable.

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Intention is a requirement for wrongful arrest/detention, although in an attenuated (limited) form, where lack of consciousness of wrongfulness will not assist the defendant to rebut the presumption of animus injuriandi (intention to injure). See Minister of Justice v Hofmeyr 1993 (3) SA 131 (A) at 154.

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Defendant cannot escape liability by pleading that he was not conscious of the wrongfulness of his conduct because he thought that what he was doing was reasonable (mistake – defence excluding intention).

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This principle also applies to false imprisonment and wrongful attachment of goods (law protects people’s property interests).

Non-violent infringements – 

taking blood from a person without consent (Nell v Nell 1990 (3) SA 889 (T))

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a surgical operation performed without consent (Broude v McIntosh 1998 (3) SA 60 (SCA)

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seduction (Bull v Taylor 1965 (4) SA 29 (A); M v M 1991 (4) SA 587 (D)) Seduction is the extra-marital defloration of a girl with her consent. (the physical change to the woman’s body as a result of the act of sexual intercourse). Wrongfulness arises from the fact that the man behaved in a seductive manner to overcome the (i.e he must have overcome the girl’s opposition to his advances). E.g. by making promises of marriage or by deceitfully inducing the girl to enter into a bigamous marriage or by abusing a relationship of dependency, is irrelevant. The girl loses her right to claim if she continues her intimate relationship with the man after the seduction. She may, however, still institute an action even if she had sexual intercourse with or married someone other than the seducer after the seduction or if, at the time of the seduction, she was aware of the man’s married status, or if she received money or gifts from the man.

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depriving a prisoner of exercise or basic intellectual stimulation or psychological comforts (Minister of Justice v Hofmeyr 1993 (3) SA 131 (A) 145-146).

SEDUCTION Seduction occurs when – - a man (never a woman) - induces a woman who is a virgin - to have sexual intercourse with him. 

If the above elements are proved, the man can be forced to pay damages (solatium – a payment to provide solace to the victim).

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The harm consists in the defloration of the woman (i.e. the woman’s virginity is the interest which is violated).

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The man’s behaviour in such instances is regarded as contrary to public policy, and therefore wrongful (the man is said to have behaved in a seductive manner to overcome the woman’s resistance and induce her to consent).

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Intention takes the attenuated form – i.e. a man cannot say he did not know that what he was doing was wrongful, because he mistakenly believed the woman

was not a virgin. If he directed his will towards having sexual intercourse with her, he will be liable. The mistake of not knowing that the woman was a virgin would not exclude intent.

DIGNITY 

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A person’s dignity embraces his subjective feelings for dignity or self-respect. Infringement of dignity accordingly consists of insulting that person. Any insulting words or belittling or contemptuous behavior may be included here; publication to the plaintiff alone is sufficient, does not need to include third parties. Embraces both constitutional and common law notions of dignity.

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The constitutional concept of dignity includes reputation but excludes privacy. The constitution recognizes dignity as a core value and as a fundamental right. (S v Makwanyana)

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To be classified as wrongful, or as infringement to right to dignity, the behaviour must not only (a) infringe the subjective feelings of dignity, but must at the same time also (b) be contra bonos mores (violation of legal norm) i.e. the current values and thinking of the community; in this instance ‘the notional understanding and reaction of a person of ordinary intelligence and sensibilities’ are of paramount importance.

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The common-law concept of dignity excludes reputation, but has a broad meaning including insult, invasion of privacy and misappropriation of identity.

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The common-law concept also has a narrow meaning of insult (wrongful and intentional wounding of the feelings of another person – i.e. by insulting or ridiculing them, or engaging in insulting/humiliating conduct).

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In order to be wrongful, the conduct must not be trivial (de minimis non curat lex).

INSULT -

This is the infringement of dignitas in the narrowest sense. When a person is insulted, his personal sense of self-worth is infringed.

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Invasion of dignity in form of inuiria – persons subjective feelings of self-respect/ self-esteem that is a person’s pride & moral value (i.e. self-worth violated) (Cele v Avusa Media Ltd [2013] 2All SA 412 (GSJ) par 41.

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Insult is the factual violation of the plaintiff’s feelings that is both wrongful and intentional. To constitute delict, (a) factual violation of feelings both (b) wrongful and, (c) intentional.

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The factual violation occurs when humiliation ( contumelia) is present. (Does not matter how humiliation takes effect)

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insult can take the form of words ( brenner v botha 1956 (3) sa 257 (t) – plaintiff called “a bloody bitch” and told “your face makes me want to be sick”) or conduct (boswell v union club of south africa 1985 (2) sa 162 (d) – plaintiffs wrongfully expelled from club).

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in order for the interest to be violated, the plaintiff must subjectively experience humiliation/insult. focus is on the conduct’s impact on person

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concerned with own opinion subjective, not what others might hold but there is also an objective aspect to the iniuria. this relates to the unreasonableness of the conduct, judged in the light of the legal convictions of the community.

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Read RH V DE 2014 (6) 436 (SCA) where the SCA and CC both held that the action for adultery should be abolished.

DELANGE V COSTA A businessman wrote a letter to another businessman in which he said that the latter was not acting in the interests of the South African olive industry. The second businessman took offence and sued for insult. The court held that, in order to claim in delict for insult, the conduct complained of must be both subjectively and objectively insulting, in accordance with prevailing societal norms and values. In this case, it was held that honest criticism does not constitute insult where the criticism was not objectively insulting. The fact that the plaintiff perceived the criticism to be insulting was not sufficient to ground an action in delict under the actio iniuriarum. People in society must be prepared to accept legitimate criticism. The court will not grant damages to a person who is hypersensitive, and this applies especially to businessmen, who are expected to display robustness in their dealings with others.

PRIVACY

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Under the common law, the right to privacy falls under the right to dignity in the broad sense (Jansen van Vuuren v Kruger 1993 (4) SA 842 (A) 849 and Bernstein v Bester 1996 (2) SA 751 (CC) paras 68-73).

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But privacy is protected constitutionally as a stand-alone right.

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For liability to arise, there must be – a) a factual violation of the right to privacy; b) wrongfulness; and c) intention.

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The right to privacy is “the right to be left alone” (Warren and Brandeis “The Right to Privacy” (1890) 4 Harvard Law Review 193).

The infringement of the right to privacy takes two forms: -

direct intrusion (peeping Tom scenario); and

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unauthorized disclosure (publishing private information).

Right to privacy refers to the most personal aspect of a person’s existence , i.e. person’s inner sanctum or the truly personal realm which are excluded from others. The scope of privacy diminishes when we consider the social capacities in which people act – for example, when they are in their offices, in their cars or on mobile telephones (Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty) Ltd: In re Hyundai Motor Distributors (Pty) Ltd v Smit 2001 (1) SA 545 (CC) para 557). Privacy is violated only if outsiders become acquainted with a person’s personal life or personal affairs.

EXAMPLES OF INVADING PRIVACY -

walking into someone’s room or private residence (S v I 1976 (1) SA 781 (RAD));

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watching someone undress (R v Holliday 1927 CPD 395);

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installing bugging/listening devices in someone’s flat (S v A 1971 (2) SA 293 (T));

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recording private conversations (Financial Mail (Pty) Ltd v Sage Holdings (Pty) Ltd 1993 (2) SA 451 (A));

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raid on a brothel (De Fourd v Town Council of Cape Town (1898) 15 SC 399);

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carrying out an unauthorised blood test (D v K 1997 (2) BCLR 209 (N)); and

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improperly interrogating a detainee (Grosschalk v Roussouw 1966 (2) SA 476 (C).

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S v A 1971 (2) SA 293 (T) – bugging and listening devices installed by private detective in complainant’s flat.

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Pretorius v Minister of Correctional Services 2004 (2) SA 658 (T) – interdict granted on behalf of prisoner to prevent broadcast of certain radio programmes to his prison cell on the grounds of “acoustic privacy”.

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S v Naidoo (1998) 1 BCLR 46 (D) – court provided with false information to obtain an order authorising the tapping of a phone – resultant interception unlawful and an infringement of the right to privacy.

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Mhlongo v Bailey 1958 (1) SA 370 (W) – unauthorised use of photographs in a magazine article.

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Jooste v National Media Limited 1996 (3) SA 262 (A) – publishing a love story in a magazine without the conse...