Understanding delict: Categories of damages

20 Oct 2023


Delict, often termed a “civil wrong,” governs situations where one seeks compensation for harm. Three primary harm categories exist: patrimonial (financial losses), non-patrimonial (non-financial harm), and pure economic (unrelated to physical harm). Delictual remedies/actions include the Aquilian Action, addressing patrimonial loss; Actio Iniuriarum, handling personality rights violations; and the Action for Pain and Suffering, dealing with physical and emotional injury claims. Detailed insights into these facets follow, offering a comprehensive understanding of the delictual legal framework.

  1. Patrimonial/Special Damages: This category includes financial losses such as medical expenses, loss of income, and repair costs related to physical damage to a person or property.
  2. Non-Patrimonial/General Damages: Non-financial harm, such as pain and suffering, disfigurement, loss of amenities, and injury to one’s personality.
  3. Pure Economic Harm: This type of damage is not connected to physical injury or property damage but encompasses financial losses resulting from unreasonable conduct.

Delictual remedies/actions

Aquilian Action:
  • Elements of liability: To initiate an Aquilian action, the plaintiff must demonstrate harm or loss, which must be patrimonial (monetary). The wrongful conduct must be unreasonable and lack lawful justification.
  • Defences: Liability hinges on fault and blameworthiness, which can be intentional or negligent.
  • Damages: The primary aim is to compensate the injured party, restoring their patrimony to its pre-damage state. Courts base awards on available evidence and may exercise judgment when exact damages are unclear. The plaintiff’s contributory negligence can reduce the damages awarded.
Actio Iniuriarum:
  • Elements of liability: General delict elements apply, with specific rules developed. Causation is presumed. Key elements include harm in the form of personality rights violation (e.g., bodily harm, indecent acts, wrongful arrest), dignitas (dignity and self-respect), and fama (defamation).
  • Defences: Liability may be influenced by factors such as the discharge of a duty, exercise of a right, or legitimate interest.
Action for Pain and Suffering:
  • Nature of action: This action deals with claims related to pain, suffering, and psychiatric injury, drawing from both Aquilian action and the use of reparative fines.
  • Elements of liability:
    • Harm or loss: Includes personal bodily injury such as actual pain, loss of life’s amenities and reduced life expectancy.
    • Conduct: Can manifest as a positive act, omission or statement.
    • Wrongfulness: Focuses on unreasonable conduct.
    • Fault: Blameworthiness, either intentional or negligent.
    • Causation: Involves factual and legal causation.


Delict encompasses various remedies/actions for addressing damages from Aquilian actions dealing with patrimonial loss to Actio Iniuriarum addressing personality rights violations and actions for pain and suffering. Understanding the essential elements of liability and the role of defences and damages in each action is crucial within the delictual framework.

See also:

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)

Roy Bregman is an accredited divorce mediator and specialises in: - Drafting of antenuptial and postnuptial contracts; - Winding up of deceased estates; - Arbitration, mediation and alternative dispute resolution;...


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