A duty without distinction

• Jurisdiction: South Africa
• Citation: 2000 Acta Juridica 49
• Author: Anton Fagan
• Pages: 49-66
• Date: 29 May 2019
• Published date: 29 May 2019

A duty without distinction

2000 Acta Juridica 49

Anton Fagan *

University of Cape Town

I Introduction

This essay concerns the relationship between the duty of care in the English tort of

negligence and the legal duty in the South African l aw of delict. More specifically, the aim

of the essay is to cast some doubt upon a common understandi ng of that relationship.

According to that un derstanding, which I wi ll label the 'orthod ox' view, there ar e two

important differences between the English duty of care and the South African legal duty,

and one important similarity. The first difference relates to the nature of the two duties:

while the English duty of care i s a duty to refrai n from performing an act carelessly, th e

South African legal duty is si mply a duty to refrain from p erforming an act. The

difference in the nature of the two duti es can also be exp ressed in terms of the way that

each can be breached: whereas the English duty of care can be breached only by

careless (or culpable) conduct, the Sout h African legal duty can be breached also by

innocent conduct. The second di fference between the tw o duties relates to their

justification: foreseeabili ty has a role in the justi fication of the Engl ish duty of care, but

has no role in the justification of the South African legal duty. The similarity between the

two duties, like the second difference between them, concerns their justification. The

justification of the English duty of care depends not only on foreseeability, but also on

certain policy consi derations. Foremost among these is the so-called floodgates concern.

These policy considerations, i n particular the floodgates concern, are equally relevant to

the justification of the South African legal duty.

In South Africa, the orthodox view recei ved the authoritative endorsement of Rumpff

CJ, in the case of Admini strateur, Natal v Trust Bank van Afrika Bpk. 1 On the one hand,

Rumpff CJ emphasizes the differences between the English duty of care and the South

African legal duty, by d escribing the former as ' 'n onding in ons gemene reg'. 2 On th e

other hand, Rumpff CJ acknowledges that the duty of care has something in common

with the legal duty, 'omdat beleidsoorwegings ook hier ter sprake kom'. 3 The orthodox

view has also been embraced

* BA LLB (Cape Town) MA DPhil (Oxon), Senior Lecturer in Private Law, University of Cape Town

2000 Acta Juridica 50

by academic writers on the South African law of deli ct, such as P Q R Boberg, J C van der

Walt and J R Midgley. 4

The primary claim of this essay is that the orthodox view is untenable: if the orthodox

view is right about the similarity between the two duties, it must be wrong about the

differences between them, and the converse. The argum ent for this cl aim has two l egs.

The first leg shows that, if the South Af rican legal duty and the English duty of care both

depend for their justification on policy factors such as the floodgates concern, they

cannot differ in nature in the way the orthodox view supposes. For, if policy

considerations like the floodgates one r eally do have a bearing on the justification of the

South African legal du ty, as they do on that of the Engli sh duty of care, th en the former,

like the latter, must be a duty t o refrain from culpably performing an act. It cannot

1 1979 (3) SA 824 (A).

2 At 833C-D.

3 At 833D.

4 See P Q R Boberg The Law of Delict; Vol I: Aquilian Liability (1989) 30-41; J C van der Walt and J R Midgley

Delict (1997) 54-70.

2000 Acta Juridica 49

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