Action based on delict
In general, the plaintiff is restricted to the particulars of negligence he alleges.
In any declaration / particulars of claim framed in delict there must be a right which has been violated; and in order to disclose the nature, extent and grounds of the action it is essential that that right should be set out.
Where the right is not special or peculiar to the plaintiff the statement of the wrong is enough statement of the infringed rights, as for example in the cases of assault or defamation. However, where the right is special to the plaintiff, that right must be stated with particularity. In such cases it is not sufficient merely to allege the existence of a right, a duty or a liability – the facts which create such right, duty or liability must be set out. Thus in an action for damages based upon loss the manner in which such loss occurred must be stated because it is not any or every loss for which a defendant can be made liable. So too in an action for the re-delivery of an article the liability to make such restoration depends on a prior delivery thereof and an averment of delivery is therefore essential.
A party seeking to cancel a contract on the ground of fraudulent misrepresentation must allege and prove that the misrepresentation was material, but this does not mean that the word ‘material’ must be used. Fraud must be specially pleaded.
Where negligence is relied on as the basis of an action in delict the negligence must be specially pleaded and proved, and a special averment of this sort is even more necessary in the case of the neglect of a statutory duty.
Many delicts are based on the lex Aquilia. This has been extended in South African law to include many acts which would not have fallen under the lex Aquilia in the Roman or Roman-Dutch law. Thus an action under the lex Aquilia is competent to claim damages for unfair competition due to a breach of a fiduciary relationship.
Where the delict is one which is based on malice or malicious intention or contumelia, the malice or contumelia should be stated in the declaration / particulars of claim or particulars of a claim which should appear from the facts set out. The main delicts which are included in this category are assault, defamation and injurious falsehood.
For more got to Notes on action (trial) proceedings
