Currently in South Africa when an individual is injured due to the acts of another they may claim damages for the losses which they may incur. These can be claimed from a variety of institutions, such as the Road Accident Fund, Workmen's compensation or an individual's private insurance. In all the afore-mentioned cases the calculation of damages are along the same lines, whereby the damages are quantified first, and thereafter reduced to reflect future possibilities that may occur. Traditionally future losses are reduced to reflect the possibility that the claimant may die at an age prior to the loss being incurred. To account for this risk awards for future losses are reduced using standard South African mortality tables. The set of tables currently being used were calculated from the 1985 South African census, and as such encapsulate the mortality of the population at that period. When the tables were calculated no reliable statistics were available for the Black population the result is that the tables currently being used do not contain a sample of the majority of the population. The thesis first examines, in detail, the calculation methods used to arrive at the value for damages to be awarded using the current set of life tables. Thereafter an analysis is conducted looking at differences between racial groups in the country and geographic locations, in order to uncover the mortality differences between groups to confirm or disprove the proposition that the exclusion of the Black population results in lower levels of mortality being reflected in the South African 1984-1986 life tables. This is accompanied by a review of mortality trenps in South African since 1986. Following from the findings of the expected increase in mortality since 1986, alternative life tables shall be used to show what impact these would have on the calculation of damages. Due to the fact that none of the alternatives return satisfactory results, structured settlements shall be reviewed to illustrate how the shortcomings of the lump sum approach can be circumvented, and altogether avoid the problems of out dated life tables being used as a basis for damage calculations. / KMBT_363 / Adobe Acrobat 9.54 Paper Capture Plug-in

“Contributory intent” refers to the situation where, besides the defendant being at fault and causing harm to the plaintiff, the plaintiff also intentionally causes harm to him- or herself. “Contributory intent” can have the effect of either excluding the defendant’s liability (on the ground that the plaintiff's voluntary assumption of risk or intent completely cancels the defendant's negligence and therefore liability), or limiting the defendant’s liability (where both parties intentionally cause the plaintiff's loss thereby resulting in the reduction of the defendant’s liability). Under our law the "contributory intent" of the plaintiff, can either serve as a complete defence in terms of common law or it can serve to limit the defendant's liability in terms of the Apportionment of Damages Act 34 of 1956. The “Apportionment of Loss Bill 2003” which has been prepared to replace the current Act provides for the applicability of “contributory intent” as a defence limiting liability, but it is yet to be promulgated. / Criminal and Procedural Law / LL. M.

This thesis is an analysis of the law of vicarious liability and its application within the legal framework of delict in South Africa. A brief overview of the historical development of this branch of law is given, with reference to the influences of Roman, Roman-Dutch and English law. That is followed by an exposition of the 'modem' interpretation of vicarious liability as applied in South African courts, highlighting apparent inconsistencies and the need for reform in what has become a persistently controversial area of law. Specific attention is paid to the so-called 'course and scope enquiry' and to the enduring difficulties associated with attributing liability to employers for the deliberate wrongful conduct of their employees. It is argued that the courts have yet to reach consensus on a general principle capable of being applied to the facts of so-called 'deviation cases', and that consequently the legal divergence on these matters gives rise to uncertainty and concern. It is submitted that the way in which the traditional test for vicarious liability is currently applied fails to give true effect to the policy considerations upon which this branch of law is founded. By way of comparison with the South African position, a detailed account of the law of vicarious liability in comparable foreign jurisdictions is given, with emphasis placed on recent developments in England and the British Commonwealth. The study then moves to an analysis of the various policy considerations behind vicarious liability, with particular attention being paid to the role of risk-related liability and the role of risk-assumption in the 'course and scope' enquiry. A comparative analysis follows, highlighting differences between the approaches of the foreign jurisdictions and that taken by the South African courts. The work concludes with a proposal that the South African courts should broaden the scope of vicarious liability and opt for a model similar to that which has recently been adopted in Canada.

Text in Afrikaans / Summary in English / Until recently damages were only awarded in South African law for the loss of an object which was utilised for the generation of income. In Kellerman v South African Transport Services' damages were awarded for the first time for the loss of use of an object, which was used for non-business purposes. In this dissertation the writer aims to indicate that the personal loss that a plaintiff suffers by the loss of the object is so closely related to the physical possession through which it is served, that the Jaw should protect such personal interest. In such circumstances damages should be awarded in principle, irrespective of whether the plaintiff used the object for business purposes or whether he indeed hired a substitute or not. There is room in the South African law for development in the area of delictual damages for the Joss of the possibility to use a material object. / Private Law / LL.M.

Text in Afrikaans / Summary in English / Until recently damages were only awarded in South African law for the loss of an object which was utilised for the generation of income. In Kellerman v South African Transport Services' damages were awarded for the first time for the loss of use of an object, which was used for non-business purposes. In this dissertation the writer aims to indicate that the personal loss that a plaintiff suffers by the loss of the object is so closely related to the physical possession through which it is served, that the Jaw should protect such personal interest. In such circumstances damages should be awarded in principle, irrespective of whether the plaintiff used the object for business purposes or whether he indeed hired a substitute or not. There is room in the South African law for development in the area of delictual damages for the Joss of the possibility to use a material object. / Private Law / LL.M.

Abduction / Adultery / Assault / Constitution / Defamation / Delict / Grounds of justification / Indigenous law / Intention / Legal maxims / Legal system / Legal values / Living law / Malicious damage to property / Negligence / Rape / Remedies / Seduction / Theft / Trespass / Text in Afrikaans, abstract in Afrikaans and English / In die studie word bepaal of die verskynsel wat algemeen as delik getipeer word, bekend is aan die inheemse reg en of daar na inheemse deliktereg in die gewone sin van die woord verwys kan word. Aangesien die lewende reg van 'n groep beinvloed kan word deur die mate van verwestersing wat plaasgevind het, is 'n mikrostudie in 'n semistedelike gebied gedoen ten einde te bepaal of eie waarde-oordele verplaas en vervang word wanneer daar van Westerse regsinstellings gebruik gemaak word. lnligting is ingesamel deur middel van gesprekvoering met 'n paneel van kundige mans en vrouens en is getoets aan beskikbare literatuur. Daar is gepoog om nie net die regsbeginsels te identifiseer en te omskryf nie, maar om ook kennis te neem van daardie kultuurinstellings en sosiale prosesse wat buite die reg funksioneer. Alhoewel dit moontlik is om die algemene beginsels van 'n delik te identifiseer asook die verskeie subjektiewe regte waarop inbreuk gemaak kan word, moet die eiesoortige aard daarvan deurentyd in gedagte gehou en verreken word teen die ongespesialiseerde aard van die inheemse reg. Daar is gevind dat die inheemse deliktereg van die bestudeerde groep duidelike tekens toon van aanpassings by nuwe omstandighede, maar tog met behoud van beproefde regsbeginsels en menslike waardes. / This study ascertains whether the phenomenon typified as indigenous law of delict is known to indigenous law and whether reference may be made to indigenous law of delict in the usual sense of the word. As the living law may be influenced by the measure of westernisation that took place, a micro study has been carried out in a semi-urban area in order to ascertain whether own value judgments are replaced or substituted when Western legal institutions are used. Information has been collected by way of interviews with a panel of knowledgeable men and women and controlled by reference to available literature. An attempt was made not only to identify and define legal principles, but also to take note of those cultural institutions and social processes functioning outside the law. Although it is possible to identify the general principles of delict as well as several subjective rights that may be infringed, the peculiar nature of delict must be borne in mind and set off against the unspecialised nature of indigenous law. The indigenous law of delict shows clear signs of adaptation to new circumstances, but there is evidence of the retention of proven legal principles and human values. / Private Law / L.L. D.

Reasonableness as a concept used in determining delictual liability or liability in tort law, is either embraced or perceived by some as frustrating. It is a normative concept which is inextricably linked with the concepts of fairness, justice, equity, public policy and the values of the community. These concepts assist in providing value judgements in determining liability. It is apparent from this study that the influence of reasonableness is predominantly implicit on the French law of delict, but more explicit on the South African law of delict and Anglo-American tort law. Its influence varies with respect to each element of tort or delictual liability. In order to hold a person liable for a delict or tort, it is only reasonable that all the elements of a delict or tort are present. Common to all the jurisdictions studied in this thesis is the idea of striking a balance between the defendant’s interests promoted, the plaintiff’s interests adversely affected and the interests of society. Where liability is based on fault, the reasonableness of conduct is called into question. In respect of causation whichever test or theory is used, what must ultimately be determined is whether according to the facts of the case, it is reasonable to impute liability on the defendant for the factually caused consequences. Whether loss or harm is required, assumed or not required, the question of the appropriate remedy or compensation which is reasonable under the circumstances is called into question. In South African and Anglo-American law, the multiple uses of the standards of the reasonable person, reasonable foreseeability of harm, reasonable preventability of harm, whether it is reasonable to impose an element of liability, or whether it is reasonable to impute liability, often cause confusion and uncertainty. At times, the role of these criteria with regard to a specific element may be valid and amplified while, at other times, their role is diminished and controversial. However, there is nothing wrong with the concept of reasonableness itself; indeed, it is a necessary and useful concept in law. Rather, it is the way that it is interpreted and applied in determining liability that is problematic. / Private Law / LL. D.

Abduction / Adultery / Assault / Constitution / Defamation / Delict / Grounds of justification / Indigenous law / Intention / Legal maxims / Legal system / Legal values / Living law / Malicious damage to property / Negligence / Rape / Remedies / Seduction / Theft / Trespass / Text in Afrikaans, abstract in Afrikaans and English / In die studie word bepaal of die verskynsel wat algemeen as delik getipeer word, bekend is aan die inheemse reg en of daar na inheemse deliktereg in die gewone sin van die woord verwys kan word. Aangesien die lewende reg van 'n groep beinvloed kan word deur die mate van verwestersing wat plaasgevind het, is 'n mikrostudie in 'n semistedelike gebied gedoen ten einde te bepaal of eie waarde-oordele verplaas en vervang word wanneer daar van Westerse regsinstellings gebruik gemaak word. lnligting is ingesamel deur middel van gesprekvoering met 'n paneel van kundige mans en vrouens en is getoets aan beskikbare literatuur. Daar is gepoog om nie net die regsbeginsels te identifiseer en te omskryf nie, maar om ook kennis te neem van daardie kultuurinstellings en sosiale prosesse wat buite die reg funksioneer. Alhoewel dit moontlik is om die algemene beginsels van 'n delik te identifiseer asook die verskeie subjektiewe regte waarop inbreuk gemaak kan word, moet die eiesoortige aard daarvan deurentyd in gedagte gehou en verreken word teen die ongespesialiseerde aard van die inheemse reg. Daar is gevind dat die inheemse deliktereg van die bestudeerde groep duidelike tekens toon van aanpassings by nuwe omstandighede, maar tog met behoud van beproefde regsbeginsels en menslike waardes. / This study ascertains whether the phenomenon typified as indigenous law of delict is known to indigenous law and whether reference may be made to indigenous law of delict in the usual sense of the word. As the living law may be influenced by the measure of westernisation that took place, a micro study has been carried out in a semi-urban area in order to ascertain whether own value judgments are replaced or substituted when Western legal institutions are used. Information has been collected by way of interviews with a panel of knowledgeable men and women and controlled by reference to available literature. An attempt was made not only to identify and define legal principles, but also to take note of those cultural institutions and social processes functioning outside the law. Although it is possible to identify the general principles of delict as well as several subjective rights that may be infringed, the peculiar nature of delict must be borne in mind and set off against the unspecialised nature of indigenous law. The indigenous law of delict shows clear signs of adaptation to new circumstances, but there is evidence of the retention of proven legal principles and human values. / Private Law / L.L. D.

Medical expenses refer to all medical and related expenditure reasonably incurred in respect of bodily injuries sustained. This then constitutes the primary loss in incidences of bodily injuries. However, it is accepted that bodily injuries infringe in the main the non-patrimonial aspects of the individual’s bodily integrity which is a personality right. Notwithstanding this trite provision of our law, the dissertation contends that medical expenses as a head of damages is inherently patrimonial. In essence, the true nature of medical expenses as a loss that ultimately affects both the patrimonial and non-patrimonial interests of the individual, is considered. Furthermore, the dissertation analyses the assessment and quantification mechanisms in our law, and makes a comparative study with the corresponding positions in England and Australia. The intended outcome of this dissertation is to provide clear guidelines for the award of damages, particularly where future loss is involved. / Private Law / LLM

Medical expenses refer to all medical and related expenditure reasonably incurred in respect of bodily injuries sustained. This then constitutes the primary loss in incidences of bodily injuries. However, it is accepted that bodily injuries infringe in the main the non-patrimonial aspects of the individual’s bodily integrity which is a personality right. Notwithstanding this trite provision of our law, the dissertation contends that medical expenses as a head of damages is inherently patrimonial. In essence, the true nature of medical expenses as a loss that ultimately affects both the patrimonial and non-patrimonial interests of the individual, is considered. Furthermore, the dissertation analyses the assessment and quantification mechanisms in our law, and makes a comparative study with the corresponding positions in England and Australia. The intended outcome of this dissertation is to provide clear guidelines for the award of damages, particularly where future loss is involved. / Private Law / LLM