Authored By: Mandisa Nokuphiwa
University of South Africa
When a person is assaulted in South Africa, the same physical act may simultaneously found a criminal prosecution for assault and a civil claim for damages in delict. Yet the two proceedings serve fundamentally different ends one seeks to punish the wrongdoer on behalf of society and the other seeks to compensate the victim for the harm suffered. This dual character of many wrongful acts has long been recognised in South African law.
[1]The distinction between delict and crime is rooted in the civilian tradition inherited by South African private law. Delict belongs to private law and is concerned with the protection of individual interests through compensatory remedies. Crime belongs to public law and is directed at the maintenance of public order through penal sanctions.[2] This article argues that, despite significant areas of overlap and the growing influence of constitutional values on both spheres, the conceptual, procedural and remedial differences between delict and crime remain essential and must be carefully preserved.
South African law of delict is a mixed system that draws primarily on Roman-Dutch principles, supplemented by English influences in certain areas. A delict is defined as a civil wrong consisting of wrongful and blameworthy conduct that causes harm to another person.[3] The classic definition emphasises that the wrong is actionable in private law and results in liability to compensate the injured party.
Historically the distinction between delict and crime has been explained by reference to the interest theory. Delicts are wrongs committed against individuals and their legally protected interests, whereas crimes are violations of the public interest or the authority of the state.[4] Early writers in the Roman-Dutch tradition characterised delict as a civil wrong and crime as a public wrong. This classification places the law of delict firmly within private law, while criminal law occupies the domain of public law.
The historical separation remains doctrinally significant. Although the same conduct may attract both civil and criminal consequences the legal systems that respond to that conduct operate independently. A successful criminal prosecution does not automatically establish delictual liability, nor does the failure of a criminal case preclude a civil claim. Each system applies its own elements, standards and remedies.
The primary purpose of the law of delict is the protection of individual rights and interests through the award of compensation. The plaintiff is the person who has suffered harm, and the defendant is the alleged wrongdoer. Proceedings are instituted and conducted by the private parties themselves. By contrast, criminal law is concerned with the protection of society as a whole and the maintenance of public order. The state, represented by the National Prosecuting Authority, institutes and conducts the prosecution in the public interest.[5]
This difference in parties has important practical consequences. A victim of crime may choose not to pursue a delictual claim even if a criminal conviction is obtained. Conversely, a private individual may institute delictual proceedings regardless of whether the state decides to prosecute. The decision to prosecute is an exercise of public power guided by considerations of public interest, evidence and policy, whereas the decision to sue in delict is a private choice driven by the desire for compensation.
The classic remedy for a delict is compensation in the form of damages. Where patrimonial loss is suffered, the Aquilian action is available. Where the harm consists of pain and suffering associated with bodily injury, a separate action of Germanic origin may be used. Injury to personality interests is redressed through the actio iniuriarum.[6] The aim is restorative: to place the plaintiff, as far as money can do so, in the position he or she would have occupied had the delict not occurred.
Criminal sanctions, by contrast, are primarily punitive and deterrent. They include imprisonment, fines, correctional supervision and other measures prescribed by statute.[7] While some criminal orders may have compensatory elements, such as restitution or compensation orders under the Criminal Procedure Act, these remain secondary to the penal purpose of the criminal process and are not equivalent to a full delictual award of damages.
To succeed in a delictual claim, the plaintiff must generally prove five elements on a balance of probabilities: conduct (an act or omission), wrongfulness, fault (intention or negligence), causation, and damage.[8] Criminal liability requires proof of the elements of the particular offence, typically including unlawful conduct (actus reus) and a blameworthy mental state (mens rea), beyond a reasonable doubt.[9]
The higher criminal standard of proof reflects the severe consequences of conviction, including the potential loss of liberty and the stigma of a criminal record. The lower civil standard is appropriate to the compensatory nature of delictual proceedings. As a result, it is possible for an accused to be acquitted in a criminal trial yet still be held liable in delict on the same facts, because the civil court applies a less stringent standard of proof.
Despite the clear doctrinal distinction, delict and crime frequently arise from the same factual matrix. Assault, theft, fraud, defamation in certain forms, and many other wrongful acts may constitute both a delict and a crime. In such cases the two systems operate concurrently and independently.[10]
Contemporary developments have placed additional pressure on the traditional classification. The Constitution of the Republic of South Africa, 1996, has infused both public and private law with fundamental rights and values.[11] In Carmichele v Minister of Safety and Security, the Constitutional Court emphasised the duty of the courts to develop the common law, including the law of delict, in accordance with the spirit, purport and objects of the Bill of Rights.[12] This has led to an expansion of delictual liability, particularly in cases involving the state’s failure to protect individuals from crime.
Some scholars have questioned whether the rigid classification of delict as purely private law remains tenable in light of these constitutional developments.[13] While constitutional values undeniably influence the content of delictual norms such as wrongfulness and the duty of care, the core distinction between compensatory private-law remedies and punitive public-law sanctions retains its practical and theoretical utility. Blurring the two regimes risks undermining the different purposes they serve and the different procedural safeguards appropriate to each.
The distinction between delict and crime in South African law is neither artificial nor obsolete. It reflects a fundamental division between the protection of individual interests through compensation and the protection of the public interest through punishment. The two systems differ in the interests they protect, the parties who initiate and conduct proceedings, the remedies they offer, and the standards of proof they apply.
This article has argued that these differences remain essential even as constitutional values increasingly shape both delictual and criminal doctrine. Concurrent liability for the same conduct is a feature of the system, not a flaw. Victims may pursue civil remedies independently of criminal process, and the state may prosecute independently of private claims.
Going forward, courts and commentators should continue to respect the distinct purposes of delict and crime while allowing constitutional values to enrich the content of both. Maintaining conceptual clarity ensures that compensatory justice for individuals and the public interest in punishment and deterrence each receive the procedural and remedial framework best suited to their respective aims.[14]
Reference(S):
Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC).
Constitution of the Republic of South Africa, 1996.
Criminal Procedure Act 51 of 1977.
Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA).
Neethling J, Potgieter JM and Visser PJ, Law of Delict (7th edn, LexisNexis 2015).
Snyman CR, Criminal Law (7th edn, LexisNexis 2020).
van der Walt JC and Midgley JR, Principles of Delict (4th edn, LexisNexis 2016).
Wessels B, ‘Reconsidering the State’s Liability for Harm Arising from Crime’ (unpublished LLD thesis, Stellenbosch University 2018).
Zitzke E, ‘Transformative Legal History and the (Re)Classification of the South African Law of Delict’ (2023) 26 PER/PELJ 1.
[1]J Neethling, JM Potgieter and PJ Visser, Law of Delict (7th edn, LexisNexis 2015) 3–5.
[2]JC van der Walt and JR Midgley, Principles of Delict (4th edn, LexisNexis 2016) 1.
[3]E Zitzke, ‘Transformative Legal History and the (Re)Classification of the South African Law of Delict’ (2023) 26 PER/PELJ 1, 8–10.
[4]Neethling, Potgieter and Visser (n 1) 4.
[5]Constitution of the Republic of South Africa, 1996, s 35.
[6]Criminal Procedure Act 51 of 1977.
[7]Neethling, Potgieter and Visser (n 1) 25–27; van der Walt and Midgley (n 2) 25–40.
[8]See generally CR Snyman, Criminal Law (7th edn, LexisNexis 2020) ch 2.
[9]Neethling, Potgieter and Visser (n 1) 3.
[10]See, for example, Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA); Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC).
[11]Zitzke (n 3) 12–15.
[12]Neethling, Potgieter and Visser (n 1) 5–6.
[13]See B Wessels, ‘Reconsidering the State’s Liability for Harm Arising from Crime’ (unpublished LLD thesis, Stellenbosch University 2018).
[14]Constitution of the Republic of South Africa, 1996, ss 7–39.
