Fault as a Pre-Requisite Constitutive Element for Delictual Liability

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1. Introduction:
According to Neethling a delict is an act of a person which in a wrongful and culpable (fault) way causes harm to another person. As can be construed from the definition of a delict culpableness or fault is one of the elements, which must be present for someone to have a successful delictual claim. Hence, this paper is mainly aimed at providing an in-depth discussion on fault as a pre-requisite for a successful delictual claim. 2. Definition of fault (culpa) and its two main forms:

According to jurist, such as De Wet and Swanepoel, the element of fault is defined as the inexcusable nature with which a person acts. In addition, De Wet goes on to outline that fault is “something” for which a person is blamed and, therefore, not the object of blame or the blame itself. Further, in practice, two main forms of fault are recognised, namely, intention (dolus) and negligence (culpa). Neethling submits that, this commonly refers to the legal blameworthiness or the inexcusable state of mind or conduct of someone who acted wrongfully. Thus, fault can only be present if a person has acted wrongfully. 3. Factors that should be present for someone to have fault [requirements of the element of fault]: 3.1 Accountability (culpae capax):

Before one establishes whether a defendant’s wrongful conduct is blameworthy, it must be ascertained whether he/she has the necessary capacity to be held accountable or liable, for his/her conduct. Thus, implying that such a person’s mental ability must be such that the intent or negligence may be assigned to him/her. Furthermore, according to Neethling a person is responsible if he/she has the necessary mental ability to distinguish between right and wrong and if he/she can also act in accordance with such appreciation. Simply, meaning that at the time of the commission of the act the said person must have had the required mental ability, thus if at the time of the commission of the act the person lacks accountability, there can be no fault on his/her part. As according to Neethling, accountability is seen as the basis of fault. 3.1.1 Factors leading to culpae incapax:

Nonetheless, there are instances, in our law, where a person may lack the necessary mental capacity, such as (a) youthfulness, (b) mental disease or illness, (c) intoxication or a similar condition induced by a drug and (d) anger due to provocation.

(a) Youth:
According to our law, a child who is between the ages of 0-7 years old is always regarded as lacking capacity. In such cases, the actual mental ability of the child is irrelevant and there is irrebuttable presumption that he/she is not accountable. This point was reflected in the matter of Weber v Santam Versekeringsmaatskappy Bpk; where a 7 year old boy, whilst playing in the sand in front of a block of flats, was ran over by a motorist who was reversing his vehicle from a parked position. The court a quo found contributory negligence on the child’s part and reduced the amount claim by 40%. However, on appeal the Appellate Division concluded that the boy had been culpa incapax (lacking capacity) and should thus succeed for the full amount of his claim.

Further, there in a rebuttable presumption that a child over the age of 7 and under the age of 14 lacks accountability, meaning that it is assumed that he/she lacks capacity until proved otherwise with evidence. Thus, inferring that once a child has completed his/her 7th year, he/she may be accountable and liable in delict if all the requirements for such liability are met. As in Jones v Santam Bpk; where the plaintiff claimed damages on behalf of his 9 year old daughter for injuries sustained as a result of being knocked down by a motor vehicle insured by the defendant. In this case the court ruled that the child had been contributory negligent, as she without warning moved into the road, in the face of the oncoming vehicle.

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