HEXCO · Polytechnic · NC Accountancy

Business Law 1: The Law of Delict

Learning Outcome 5 of 5

Free HEXCO NC Accountancy notes on The Law of Delict, learning outcome 5 of 5 in Business Law 1. Law in society and business, the Zimbabwe legal system and general principles of law. Semester 2, module 310/22/M07.

Here we learn what a delict is, the elements of delictual liability, the main kinds of delictual conduct in business, the meaning of defamation, what a plaintiff must prove, and the defences available to a defendant.

A business can be held liable not only for breaking contracts, but also for wrongfully harming people and other businesses, for example through negligence or by damaging someone's reputation.

5.1 The Nature and Liability of Delict

A delict is a wrongful and blameworthy act or omission that causes harm to another person, for which the wrongdoer must pay compensation.

Unlike a contract, a delict does not depend on any agreement between the parties, because the duty not to harm others is owed to everyone.

Elements of Delictual Liability

For a person to be liable in delict, the plaintiff must generally prove five elements:

Conduct

A voluntary act or omission by the defendant, such as driving a vehicle or failing to fence a dangerous hole.

Wrongfulness

The conduct must be unlawful, meaning it infringed the plaintiff's rights or breached a legal duty, judged by the standards of society.

Fault

The defendant must be to blame, either through intention (dolus) or negligence (culpa), where a reasonable person would have foreseen and prevented the harm.

Causation

The conduct must have caused the harm, both factually and closely enough for the law to hold the defendant responsible.

Harm

The plaintiff must have suffered loss, either patrimonial (financial) loss or non-patrimonial harm such as pain or injury to dignity and reputation.

Delictual Behaviour in Business

The table explains the main kinds of conduct that can give rise to delictual liability.

Conduct	Explanation
Negligence Careless conduct causing harm.	Failing to take reasonable care, such as a shop leaving a wet floor unmarked so that a customer slips and is injured.
Fraud Intentional deception causing loss.	Deliberately making false statements to induce someone to act to their loss, such as selling a business with falsified accounts.
Nuisance Unreasonable interference with neighbours.	Using property in a way that unreasonably disturbs others, such as constant noise, smoke or smells from a factory.
Passing off Pretending to be another business.	Using a name, logo or packaging similar to a rival's so that customers think the goods come from the rival.
Injury to a person Physical or psychological harm.	Causing bodily injury or recognised psychological harm, such as through a road accident caused by a delivery driver.
Damage to property Harm to another's things.	Destroying or damaging property, such as a contractor damaging a neighbour's wall.
Harm to economic interests Pure financial loss.	Wrongfully causing financial loss, such as unlawful competition or negligent professional advice.
Subjecting a person to indignity Injury to dignity.	Insulting or humiliating a person, such as wrongfully searching or detaining a customer suspected of shoplifting.
Defamation Injury to reputation.	Publishing false and damaging statements about a person or business, explained fully below.

Vicarious Liability

An employer can be held liable for delicts committed by an employee acting in the course and scope of employment, even if the employer was not at fault. For example, a company is liable when its driver negligently causes an accident while making deliveries. This is why businesses train staff, supervise them and take out public liability insurance.

5.2 The Concept of Defamation

A good name is valuable to people and businesses alike, and the law protects it through the delict of defamation.

Defamation is the wrongful, intentional publication of words or behaviour that injures another's reputation.

Definition of Defamation

Defamation is the wrongful and intentional publication of a defamatory statement about another person, which injures their good name or reputation. It may be spoken, written, printed, broadcast or posted online, including on social media such as WhatsApp and Facebook.

Definition of a Defamatory Statement

A defamatory statement is one that tends to lower the person in the estimation of right-thinking members of society, or to expose them to hatred, ridicule or contempt. Whether a statement is defamatory is judged by how a reasonable ordinary person would understand it. For example, posting that a named accountant 'steals from clients' is defamatory, because it lowers her reputation for honesty.

5.3 Proving Defamation

A person who sues for defamation is the plaintiff, and the person sued is the defendant.

The plaintiff must prove certain facts, after which the defendant must raise a defence.

Factors to Be Proven by the Plaintiff

To succeed, the plaintiff must show:

That the statement was published

The statement was made known to at least one person other than the plaintiff, because harm to reputation requires others to hear or read it.

That the statement refers to the plaintiff

A reasonable person would understand the statement to be about the plaintiff, even if the plaintiff is not named.

That the defendant was responsible for the publication

The defendant made or published the statement, or caused or authorised it to be published.

That the matter is defamatory

The statement is truly defamatory or injurious, lowering the plaintiff in the eyes of right-thinking people.

That the statement was false

The syllabus lists falsity as a factor. In practice, once publication of a defamatory statement is proved, the law presumes that it was wrongful and intentional, and it is for the defendant to prove a defence, such as that the statement was true and in the public interest.

5.4 Defences in an Action for Defamation

A defendant can avoid liability by proving a recognised defence.

Each defence shows either that the publication was not wrongful or that there was no intention to defame.

The Main Defences

The table explains the defences listed in the syllabus.

Defence	Explanation
Justification (truth and public benefit) The statement was true and in the public interest.	Exposing a company director's proven fraud to shareholders is justified, but revealing true private facts with no public interest is not.
Privilege The statement was made on a privileged occasion.	Statements in court or Parliament are absolutely privileged; statements made in the course of a duty, such as an honest employment reference, have qualified privilege if made without malice.
Fair comment An honest opinion on a matter of public interest.	A newspaper review saying a restaurant's food is poor is fair comment if it is an honest opinion based on true facts.
Compensation Mutual defamation.	Where both parties defamed each other, the defamations may be set off against each other, reducing or cancelling the claim.
Jest (joke) The statement was clearly a joke.	If reasonable listeners would understand the words as a joke, not a serious statement, there is no intention to defame.
Rixa Words spoken in the heat of a quarrel.	Insults exchanged in a sudden quarrel, which no one takes seriously, may not be actionable, especially if quickly withdrawn.
Consent The plaintiff agreed to the publication.	A person who agreed to a statement being published cannot later sue for it.

Remedies for Defamation

A successful plaintiff may be awarded damages as compensation for the injury to reputation, an interdict to stop further publication, or a retraction and apology. For businesses, the lesson is to check facts before publishing, avoid posting accusations on social media, and train staff to communicate carefully about customers, competitors and colleagues.