In order for the defendant to be subject to tortious liability, his conduct must be considered unlawful. Although Delict can be described as a loss allocation system, it is important to note that not all damages or losses are legally liable. “Sound policy,” wrote Oliver Wendell Holmes, Jr., “leaves losses where they fall, unless a particular reason for disruption can be proven.” As Christian von Bar puts it: “Tort law can only function as an effective, reasonable and fair compensation system if excessive liability is avoided. It is important to prevent it from becoming a disruptive factor in the economic sense of the word. No law based on rational principles can hold every act of negligence liable.  For this reason, there are mechanisms built into South African law to keep liability within reasonable limits. The error element presented below is one of them. If the requirements are not met, no liability is incurred. Van der Walt and Midgley list the elements of a neglected person as follows: The different criminal acts are not mutually exclusive. It is possible for a person to suffer different forms of harm at the same time, which means that a person can simultaneously seek remedies in the form of more than one lawsuit.  Criminal and tortious conduct is usually divided into factual and legal causality. Factual causality is proved by “proof that the wrongful act was a causa sine qua non condition of the damage”. This is also called the “but for” test.
However, a successful demonstration “does not necessarily entail legal liability.” If factual causality has been proved, a second question arises: is the wrongful act so closely or directly related to the damage that legal liability may arise from it? Is there legal liability or is the loss “too small”? This is essentially a legal issue. Strategic considerations can play a role in their solution.  The courts take a flexible approach based on considerations of adequacy, fairness and justice, although there are concerns. As the Tribunal stated in Fourway Haulage SA v. SA National Roads Agency, there are, as we have already mentioned, three main remedies: liability refers to open conduct (thoughts cannot be criminal). There must be a positive action or order, whether physically or in the form of a statement or comment, or an omission: a failure to do or say anything. Liability arises only in special circumstances: There is no general legal obligation to avoid damage. Among the factors that exclude liability is the fact that Roman civil law was essentially punitive of tort, although fines were understood as compensation, often with double and triple damages, and were paid to the injured party and not to the State. There were four main types of offences: Furtum (theft), Rapina (robbery), Injury (injury) and Damnum Injuria Datum (loss due to property damage). Unlike the Casuistic approach of Roman law to tort, South African law of negligence […] is based on three pillars: actio legis Aquiliae, actio iniuriarum and action for pain and suffering. Unlike the latter action, which developed in Romano-Dutch law, the first two actions had already played an important role in Roman law. The element of damage is “the cornerstone of tort law and our fundamental starting point.”  Once the nature of the injury has been determined, it is possible to identify the nature of the investigation and the elements that must be proved. There is an interaction between the elements of injury and illegitimacy and a similar interaction between how we determine harm and assess damage. “For the sake of conceptual clarity,” say academic authorities, “it`s always important to remember where we`re going on the problem-solving path toward the intended goal.”  For an offence to exist, there must be a link (causal link) between the conduct and the harm. In other words, did the behavior cause the damage? For liability under the actio iniuriarum, the general elements of tort liability must be present, but specific rules have been developed for each element. Causality, for example, is rarely questioned and is believed to exist. The elements of liability of the actio iniuriarum are as follows: Offence in Roman law an obligation to pay a penalty because an injustice has been committed. It was not until the 2nd and 3rd centuries AD that public crimes were separated from private crimes and brought before criminal courts; Since then, civil litigation has remained the remedy for private abuse. In the modern language of countries that derive their right from the Romans, negligence means an injustice in its civil aspects that corresponds to the offense in Anglo-American law.
It is crucial that the behaviour is voluntary. In other words, there must be no coercion, and it must not be a reflexive action. (The person involved in the behavior must also be compos mentis or with a clear mind and with sober senses, not unconscious or intoxicated, for example. He must be responsible for his actions, have the ability to distinguish between good and evil and act accordingly. As long as this standard of liability is not insured, it will not be liable for its actions or omissions. There will be no error.) Behavior refers to open behavior, so that, for example, thoughts are not criminal.