(Slides: 1-3)1: PRELIMINARY QUESTIONS:Cause of action “A cause of action in a civil case must be set out in such a way that it alleges all the material facts in orderto: (a) constitute a lawful cause of action and (b) provides the material facts to enable the other party toANSWER (should he wish) to, to these allegations.”“Cause of action” =“cause of complaint”. CompareIn the criminal process, this is the chargethat the accused person is accused of. (Summons vCharge Sheet)Civil claim- like criminal charge- substantive law - elements-must be alleged and proved for success.In practice-attorney/advocate DRAFTS these-important skill.Causes of action often in delict, contract, Constitution, or in terms of legislation.1. DELICTUAL CLAIMS: (MOTOR VEHICLE COLLISIONS & ASSUALT)1.1 MOTOR VEHICLE COLLISION:
EXAMPLE: Consider-Drunken taxi driver disregards traffic light, crashes into your car driven by your wife you havesuffered damages.Issues arising:First:The civil claim is separate from any criminal charge.Second:If your wife has physical injuries may have a third-party or MVA claim.Third:Who must sue? Owner of car.Fourth:Who must be sued: there could be vicarious liability. TD E/er. (recovered under Lex Aquilliaebecause it is patrimonial loss) Fifth:Remember main elements of delict. (1. wrongful act; 2. Negligence; 3. Causation; 4. Damages.)(Allege and prove)Formulated cause of action: “on 3 February 2020 at the corner of First and Second Street, Bloemfontein, a collision occurred betweenmotor car DYN123FS, the property of the plaintiff, driven by the plaintiff’s wife, and motor car BEN123FS,driven by the defendant. The sole negligent driving of the defendant caused the collision. As a result of thecollision, the plaintiff has suffered damages in the sum of R40 000.00 representing the fair and reasonablecosts of repair to his car.” (See page 636)
1.2. ASSAULT: EXAMPLE:Bouncer at a nightclub punches client's 16 yo on the nose. The son must have an operation to straightenhis broken nose and cannot take part in 2 rugby matches. Issues arising: First:The civil claim is separate from any criminal charge.Second:If your son has physical injuries?Third:Who must sue? Son by being duly assisted by father and father. Fourth:Who must be sued: there could be vicarious liability. Bouncer and E/er. What can be sued for: patrimonial damages; represented by (Doctors’ cost; loss of salary); plus generaldamages, pain and suffering, loss of amenities, scarring assisted... Fifth:Remember main elements of delict. (1. Wrongful act; 2. Negligence; 3. Causation; 4. Damages.)(Allege and prove)2. CONTRACTUAL CLAIMS:
1. Very common causes of action in practice.2. Substantive law of contract, determines remedies in different scenario's in other words from the buyers'perspective & from the sellers' perspective.