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 law of delict. More specifically, the aim

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

According to that understanding, which I will label the 'orthodox' view, there are 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 is a duty to refrain from performing an act carelessly, the

South African legal duty is simply a duty to refrain from performing an act. The

difference in the nature of the two duties can also be expressed 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 South African legal duty can be breached also by

innocent conduct. The second difference between the two duties relates to their

justification: foreseeability has a role in the justification of the English 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 considerations. Foremost among these is the so-called floodgates concern.

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

the justification of the South African legal duty.

In South Africa, the orthodox view received the authoritative endorsement of Rumpff

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

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

African legal duty, by describing the former as ' 'n onding in ons gemene reg'. 2On the

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 delict, 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 argument for this claim has two legs.

The first leg shows that, if the South African 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 really do have a bearing on the justification of the

South African legal duty, as they do on that of the English duty of care, then the former,

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

11979 (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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