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INTRODUCTION
Things change. And that is quite normal.1 This thesis is intended to explore the changing landscape of the South African law of delict in light of the Constitution.2 By ‘law of delict’ I mean that part of South African law that is concerned with wrongful and culpable conduct that causes harm to another.3 Following the Roman legal tradition,4 the South African law of delict has habitually been classified as forming part of ‘private law’ defined as that part of the law that regulates the legal relationships between non-state actors but, for purposes of this study, I shall avoid forcing the law of delict into that mould for two reasons:
Firstly, even though the South African law of delict does provide remedies for civil wrongs committed by and against private parties it also provides the legal principles relevant to establishing the compensatory liability ofthe state.5 Secondly, as this study will show in due course, the South African Constitution requires a strong form of constitutional application to traditional ‘private law’ matters, including delictual disputes, which means that a rigid distinction between private and public law is no longer desirable.
The definition of the law of delict provided above shows that there are at least five elements of a delict in South African law that are briefly elaborated on here. (1) Conduct can take on the form of a voluntary and human ‘positive act’ or ‘omission’. (2) Wrongfulness has recently been explained by the Constitutional Court as an enquiry into whether the legal convictions of the community (or the boni mores), constitutionally understood, regard the conduct of the alleged wrongdoer as being acceptable.7 If the conduct has taken on the form of a positive act and a subjective right has been infringed, wrongfulness is presumed unless if it can be rebutted.8 If the conduct takes on the form of an omission, the enquiry specifically relates to whether the alleged wrongdoer bore a legal duty not to cause harm to the victim.9 If the conduct causes pure economic loss, then the enquiry is often said to relate to the reasonableness of imposingliability.10 (3) Fault can take on the form of either intent or negligence and must be satisfied in all cases except in matters where strict liability is imposed on an alleged wrongdoer.
However, in order for a person to act with fault he or she must have the capacity to act culpably. Only if a person has the capacity to act culpably can one enquire whether he or she acted with intent or negligence.12 Intention involves the direction of will to do harm coupled with knowledge of wrongfulness.13 Intention is traditionally only required for the causing of non-patrimonial harm (called the animus iniuriandi). For all other cases, negligence will suffice. In the leading case of Kruger v Coetzee the Appellate Division tested negligence by asking whether a reasonable person in the position of the alleged wrongdoer would have reasonably foreseen the possibility of harm and, if that is the case, whether the reasonable person would have taken reasonable measures to prevent the harm and, if so, the alleged wrongdoer failed to take those preventative steps.14 If these questions are answered in the affirmative, negligence has been established. (4) Causation comprises of two legs: Factual causation serves to determine whether the harm would have ensued if the alleged wrongdoer refrained from the complained of commission or omission. If the harm would not have ensued but for the alleged wrongdoer’s conduct, that conduct factually caused the harm. Additionally, the conduct must be the legal cause of the harm, which is determined with reference to various flexible policy considerations that have developed through the cases.
PART ONE: INTRODUCTION & RESEARCH PROBLEM
CHAPTER 1: Introducing the Study
1 INTRODUCTION
2 THE RESEARCH PROBLEM IN BASIC TERMS
3 THE JURISPRUDENTIAL APPROACH
3.1 Introducing the Jurisprudential Approach
3.2 Transformative Constitutionalism
3.3 Critical Legal Studies in South Africa
3.4 Transformative Constitutionalism as Critical Legal Scholarship in South Africa
4 A NOTE ON SOURCES AND STYLE
4.1 On Sources
4.2 On Style
5 OUTLINE OF CHAPTERS
CHAPTER 2: Judicial Ad Hocery and a Call for Adjudicative Subsidiarity in the South African Law of Delict
1 INTRODUCTION
2 THE CURRENT AD HOC APPROACHES TO THE APPLICATION OF THE CONSTITUTION TO THE COMMON LAW OF DELICT 23
3 CONSTITUTIONAL AVOIDANCE
4 CONSTITUTIONAL OVER-EXCITEMENT
5 ADJUDICATIVE SUBSIDIARITY AS TRANSFORMATIVE METHOD FOR THE LAW OF DELICT
PART TWO: THE STATE AS WRONGDOER
CHAPTER 3: The Constitutional Framework for Holding the State Delictually Liable: Reflections on Carmichele v Minister of Safety and Security
1 INTRODUCTION
2 FACTS, BACKGROUND AND THE LEGAL ISSUE
3 THE REASONING OF THE CONSTITUTIONAL COURT.
4 CONCLUDING REMARKS ON CARMICHELE CC
CHAPTER 4: Vicarious Liability as Mechanism for Holding the State Liable in K v Minister of Safety and Security
1 INTRODUCTION
2 FACTS, BACKGROUND AND THE LEGAL ISSUE
3 THE REASONING OF THE CONSTITUTIONAL COURT
4 DIRECT LIABILITY AS AN ALTERNATIVE MECHANISM OF STATE LIABILITY.
5 CONCLUDING THOUGHTS ON STATE LIABILITY IN THE WAKE OF K v MINISTER CC
CHAPTER 5: The Role of Constitutional Values in the Determination of State Liability
1 INTRODUCTION
2 THE PREAMBULAR CALL FOR HISTORICAL SELF-CONSCIOUSNESS AND THE LEGAL TURN TO ‘MEMORY’
3 THE FOUNDING VALUE OF STATE ACCOUNTABILITY
4 CONCLUDING THOUGHTS ON THE DELICTUAL LIABILITY OF THE STATE
PART THREE: PRIVATE WRONGDOERS
CHAPTER 6: The Constitutional Framework for Holding Private Wrongdoers Liable: Thoughts on Khumalo v Holomisa
1 INTRODUCTION
2 HORIZONTALITY UNDER THE 1993 CONSTITUTION
3 HORIZONTALITY UNDER THE 1996 CONSTITUTION: THE BLUEPRINT SKETCHED IN KHUMALO
4 THE POSSIBILITIES OF HORIZONTALITY FOR THE TRANSFORMATIVE PROJECT OF THE CONSTITUTION
CHAPTER 7: Theories of Equality in Delict
1 INTRODUCTION
2 GENRES OF EQUALITY IN SOUTH AFRICAN CONSTITUTIONAL JURISPRUDENCE.
3 EQUALITY IN DELICTUAL DISPUTES BETWEEN PRIVATE PARTIES
4 THE INEQUALITY IN DEY AND A GLIMPSE INTO THE FUTURE
CHAPTER 8: Commodity Dignity and Ubuntu Dignity in the Constitution and the Common Law of Delict
1 INTRODUCTION
2 UBUNTU DIGNITY IN CASE LAW
3 COMMODITY DIGNITY IN CASE LAW
4 CONCLUDING THOUGHTS ON THE TENSION BETWEEN UBUNTU AND COMMODITY DIGNITY
PART FOUR: CONCLUDING THOUGHTS
CHAPTER 9: Conclusion
