UNIVERSITY OF ZIMBABWE

Delict

LB2 03

2015

Duration of examination: 3 hours

Instructions:

Students must answer FOUR questions. At least ONE question must be answered from Section
A and at least ONE question from Section B.

Each question carries 20 marks. Where questions are subdivided into more than one part,
students must answer all parts of the question and the marks for the question will be equally
divided between the subparts.

Candidates may take into the examination room an unannotated and unmarked copy of the
Delict Case List supplied by the lecturer.
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SECTION A

Answer at least ONE question from this Section

Question 1

Suggest ways in which we could improve the functioning of the fault liability system so that it
optimally performs its role of providing compensation to accident victims and indicate the areas
in which you think risk creators be made strictly liable for the harm that they cause.

Question 2

The law of delict provides remedies for harm both to a person’s reputation and harm to his or
her dignity.

Outline the delictual remedies for the harm caused to each of these personality rights; discuss
the criteria that are taken into account in assessing the amount of damages to be awarded for
harm to these personality rights; and comment on the view that often in recent years the
amounts claimed have been extravagant and disproportionate to the harm suffered.

Question 3

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 [a)] For vicarious liability to be imposed on an employer it is not necessary to prove that the
employer was negligent, for example, by failing properly to supervise the employee or by
employing an incompetent employer; all that has to be proven is that the employee, who
was not an independent contractor, committed a delict in the course of his employment
which caused harm to the plaintiff.

Comment upon the accuracy of this statement.

a)[b)] Using relevant case law, give examples of situations in which the plaintiff will be able
successfully to claim damages even though the loss that was caused was purely
economic loss.

Question 4

a) “Our law of delict has recognised that some forms of competition exceed even the
generous bounds of a free market economy and are actionable under the law of delict.”

What forms of trade competition are actionable under the law of delict?

b) Is it correct that the defence of qualified privilege can never succeed to an action for
defamation if the defendant published information thinking it to be true but which turned
out to be untrue?

__________________________________________________________________________

SECTION B

Answer at least ONE question from this Section

Question 5

The school hours for Excellence Primary School are from 8.00 am to 4.00 pm. The school
advises all parents to collect their children promptly at 4.00 pm. On the day in question one of
the teachers ended his class at 3.30. He advised the children in the class to go and play in the
playground in the school grounds until their parents came to pick them up. The playground was
located next to a busy road but there was a one metre high fence between the field and the
road. There was no teacher at the playground to supervise the children. The children started to
play with a soccer ball. When David Bere, aged eight, kicked the ball it flew over the fence onto
the road. David immediately climbed over the fence and, without looking, ran straight out onto
the road. Sam Deve was driving along the road at a speed that was within the prescribed speed
limit for this area. When David ran out onto the road Sam applied his brakes and tried to swerve
to avoid hitting David but unfortunately the car hit David and badly injured him, causing him

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severe spinal injuries that will mean that he will never be able to walk again and will have to use
a wheelchair.

You have been approached by David’s parents for legal advice. Advise the parents on the
following matters:

a) Who can the parents sue in delict for the injuries caused to their son; and
b) What damages can they claim?
c) Was their son guilty of contributory negligence?

Question 6

Dan Stalker, who is mentally very unstable, has a number of previous convictions for sexual
assaults upon women. Dan has become fixated on Ms Moyo, a single woman. Dan has been
following her wherever she goes and has been watching her house. Ms Moyo reports this to the
police and the police arrest Dan and take him into custody. The police know that he is mentally
disturbed and is very dangerous. However, one evening Constable Unreliable fails to lock the
cell door and Dan escapes and it is several hours before the police realise that he has escaped.
Dan immediately goes to Ms Moyo’s house where he breaks in, violently rapes her and then
runs away. He is apprehended by the police soon thereafter.

Two months later Ms Moyo discovers that she was impregnated by the rapist. She goes to the
police who inform her that she is entitled to have a lawful termination of the pregnancy but only
after Dan has been successfully prosecuted for rape. One month later she was told by a
woman’s organisation that she does not have to wait for the trial of the rapist before obtaining a
termination. The organisation then assists her to make the application to a magistrate seeking a
certificate authorising the application. The application is accompanied by the required affidavit
from Ms Moyo that the pregnancy was as a result of rape. However, there is an extended delay
before a magistrate considers the matter and grants the certificate and the doctors refuse to
carry out the termination because the pregnancy is now so advanced that it would be unsafe.
Thereafter Ms Moyo gives birth to a child.

Advise Ms Moyo whether she has any delictual remedy—

a) for the negligence of the police in allowing Dan to escape from custody and rape her;
b) for her inability to obtain a termination of pregnancy whilst it was still medically safe for
her to do so.

Question 7

Gullible Trading Company has employed a firm of auditors, Slipshod Audit (Pvt) Ltd, to carry out
an annual audit at its company. The audit was carried out and in its report to the directors of
Gullible Trading the auditors stated that they had found no irregularities in the finances of the
company and the company appeared to be in a very healthy financial position. In fact, the

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financial manager of Gullible Trading, Mr Bent, had been siphoning off large sums of company
money and depositing it in his foreign bank account and this had placed Gullible Trading in an
extremely precarious financial position. The fraudulent activities of Bent would have been easily
detectable if a proper investigation of the finances of Gullible Trading had been carried out.

Thinking that its financial position was secure as a result of the audit report, Gullible Trading
then used the audit report to obtain a loan from the Watertight Bank to buy equipment to expand
its operations. It also obtained share investment in its company by including the audit report in
its prospectus. Soon thereafter, it discovered the massive fraud of Bent and the company has
now had to declare insolvency.

What delictual remedies do Gullible Trading, Watertight Bank and the investors in the Gullible
company have?

Question 8

The Daily Revealer is a daily newspaper which is sold throughout the country, and the
newspaper is also placed on the newspaper’s website. The Editor of the paper is Mr Meticulous.
The following stories have been published in recent editions of the newspaper.

1. “Minister guilty of large scale corruption?

We have received an unsigned letter making serious allegations that the Minister of
Commerce and Industry, Mr Dubious, has become extremely rich as a result of taking
substantial bribes to facilitate the setting up of businesses in Zimbabwe by foreign
investors. The letter gives many details of these alleged corrupt practices. We will hand
over this letter to the police and we would urge the police immediately to arrest
Dubious.”

Mr Dubious was not contacted by the newspaper before these allegations were
published and emphatically denies that he has engaged in any corrupt practices.

2. “Prominent pastor convicted of rape

Famous pastor and prophet, Mr Disreputable, was today convicted of rape of one of his
female parishioners and sentenced to twenty years imprisonment.”

Accompanying this story was a photograph which the paper said was of Mr Disreputable
but was, in fact, a photograph of another prophet, Mr Salvation.

3. “Miss Zimbabwe is a lesbian

The recently crowned Miss Zimbabwe, Ms Glorious Mpofu, should have her crown
removed immediately as she is totally unsuitable to represent the country. We have
ascertained from a most reliable source that she is in a lesbian relationship with another
woman and that she regularly goes to night clubs, gets drunk and behaves in a
disorderly fashion.”

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 It is true that Ms Mpofu is a lesbian but it is completely untrue that she goes regularly to
night clubs and gets drunk and behaves badly.

4. “Well-known entertainer infects many women with HIV

The famous singer, Mr Dissolute, is in fact a most disreputable person. He has
destroyed many marriages by sleeping with married women. But worst of all, he has
known for a long time that he is HIV positive, but never discloses this before having
sexual relations with the women and does not wear condoms. Innumerable women have
been infected by him with HIV.”

It is true that Mr Dissolute has had HIV for a long time but no women have reported to
the police that he has infected them with HIV and the paper can find no women who are
prepared to testify in court that they have been infected by him.

Advise the newspaper of their prospects of successfully defending actions for defamation by
Dubious, Salvation, Mpofu and Dissolute.

END OF EXAM PAPER