Tort remedies award the owner damages or damages for interference with the exercise of his property rights. Most often, the offence is an illegal alienation that results in financial loss. Tort remedies are appropriate when physical restitution of property is impossible, i.e. when property has been lost, destroyed or damaged; In this case, the owner is entitled to compensation for his loss of property. Three delictual remedies concern property rights: condictio furtiva, actio ad exhibendum and actio legis aquiliae. These are all personal remedies and not real ones. Condictio furtiva is used in cases where property has been stolen to compensate for the loss of assets. The lawsuit is only available against the thief, but can be brought by anyone with a legitimate interest in the property. [111] However, it is essential that the applicant be the owner or have the legitimate interest at all relevant times, i.e.
the interest must exist at the time of the theft and still exist at the time the action is brought. [112] As a starting point, South African tort law recognizes the loss/damage or damage to property and non-property that may be suffered. Property loss refers to a monetary value that is claimed and is usually accompanied by non-patrimonial loss/damage. Non-patrimonial loss or damage specifically recognizes three types of personality interests, namely: physical or physical integrity, fama, which refers to the good reputation and dignity or dignity of a person. In particular, defamation violates the right of personality or fama as well as the dignity of a person (dignitas) or the right of a person to his reputation. „Theoretically, non-patrimonial loss (such as property damage) is determined using a method of comparison. The usefulness or quality of the interest of the person concerned before and after the offence shall be compared in order to determine the existence and extent of the loss. In this way, information is obtained on the nature, gravity, extent, intensity and duration of the objective party to the injury, as well as on the alteration of the applicant`s feelings. An obvious condition of liability under tort law is that the plaintiff must have suffered damage; As far as the Aquillian action is concerned, this damage must be patrimonial, which traditionally meant a financial loss suffered due to physical damage to a person or property. Now, however, financial loss also includes monetary losses due to nervous system injuries and pure economic losses. A claimant may seek compensation for both actual and anticipated damages, including, for example, loss of earning capacity, future profits, revenues and expenses. For the lawsuit to be successful, a claim must be based on physical pain, psychological distress, shock, loss of life expectancy, loss of living facilities, discomfort and discomfort, disability or disfigurement (and resulting humility and sadness).
The important feature in all these cases is that the damage must be associated with bodily injury suffered by the plaintiff. Such a loss has no effect on the capital in so far as it is intangible and does not adversely affect the applicant`s economic or monetary situation. Damage includes both patrimonial (pecuniary) and non-patrimonial (immaterial) losses. The Supreme Court of Appeal held that in defining the term „class“ in the class action, it is not necessary to identify the individual members of the class, „but that the class must be defined so precisely that the affiliation of a particular person can be determined objectively by examining his or her situation in light of the class definition.“ In addition, foreign members of a group are bound by the proceedings if they are considered members of the group under South African law. Nerve or psychiatric damage is sustained through the eye or ear without direct physical effects: that is, it is a mental rather than a physical injury. For a loss of property to be enforceable in the event of emotional shock, it must have been caused intentionally or negligently. The assessment of objectively reasonableness may be made if the foreseeability of such harm is assessed. There are six established principles: compensation for non-patrimonial or solatium losses has no compensatory function, since such loss has no economic or financial value. Rather, the emphasis is on offering satisfaction or comfort to the applicant, to the extent that this is possible through the award of a sum of money. The purpose of solatium is to redress injustice; The sentence has no punitive purpose. [6] An asset loss is adequately defined in Visser & Potgieter Law of Damages 3rd ed., p. 51, where the learned authors state: The plaintiff sued the defendants for various amounts for patrimonial and non-patrimonial losses.
The claims were consolidated and there was no evidence of damage caused. The court requires proof of damage in order to be able to make a reasoned decision. The plaintiff was partially successful in his action. [5] Before addressing the damages claimed, it is important that I first set out the correct legal position with respect to the damages that counsel for the plaintiff does not appear to have acknowledged. In his lawsuits, he combined property and non-property losses. That is not correct because they are different statements. Examples of non-patrimonial loss include pain and suffering, emotional shock, disfigurement, loss of living comfort, and reduced life expectancy. [12] I now turn to the issue of non-asset loss. These courts adopted an approach based on Visser & Potgieter (op. o.) As Neetling and Potgieter quote, easements are real rights that are „excluded from the full domination of the owner“[151] and confer benefits on others, either by granting them the right of use and enjoyment or by obliging the owner to refrain from exercising his right. Conversely, the notion of servitude implies that the property is used either for another property or for another person, and that the dominance of the owner of the servant or the encumbered asset must be reduced by the easement. By definition, one cannot have an easement on one`s own property (nemini res sua servit), because an easement can only be a limited real right over someone else`s property.
„The loss or impairment of a positive asset in a person`s estate or the creation or enhancement of a negative component of the person`s estate (a capital liability).“ It follows from the above definition of the court that there must be positive conduct in the form of publication addressed to the victim (plaintiff), wilful misconduct and illegality. These elements are briefly described below. The behavior is simple because it requires only one action. However, it should be noted that the behavior must be in the form of a post seen by two or more people.
