Getting wrongfulness right: A Ciceronian attempt

• Jurisdiction: South Africa
• Pages: 1-48
• Date: 29 May 2019
• Published date: 29 May 2019
• Author: François du Bois
• Citation: 2000 Acta Juridica 1

Getting wrongfulness right: A Ciceronian attempt

2000 Acta Juridica 1

François Du Bois *

University of Cape Town

'Now the law disposes of sharp practices in one way, philosophers in another'- Cicero De

Officiis 3.17 1

I Introduction

The law of delict has remained as responsive to changing social needs and values during

'the second life of the Roman-Dutch law' 2 as it had been during the earlier period of

legal development our honorand has done so much to illuminate. Many have lauded this

historical pedigree for bequeathing such impressive adaptability to this branch of South

African law, contrasting the 'Continental way' of applying general principles of liability

with what is seen as the fragmented and casuistic approach of the English law of torts. 3

There is much to support this assessment. South African writers and courts, especially in

the twentieth century, extracted from Roman-Dutch materials a conceptual structure

that seems to exemplify not only the elegance, but also the elasticity of simplicity. 4 This

is particularly true of the concept of 'wrongfulness', or 'unlawfulness', which emerged as

a unifying description of the boundaries of civil liability for blame-worthy conduct that

causes harm to another. By adopting the notion that the wrongfulness of conduct

depends on whether it is contra bonos mores,5South African lawyers endowed the law

of delict with a

* BA LLB (Stell) BA BCL (Oxon), Senior Lecturer in Private Law, University of Cape Town.

2000 Acta Juridica 2

standard for demarcating the scope of civil liability that was inherently flexible and

simultaneously made explicit the purpose of judicial development of this branch of the

law — to ensure that it remains in step with the society it is meant to serve. 6This

splicing of a candid recognition that judges not only apply law, but also develop it, with

an insistence that this serves a legitimate function, 7largely obviated the need to pursue

legal evolution behind a screen of questionable interpretations and re-interpretations of

1 As quoted by Jansen J in Meskin NO v Anglo-American Corporation of SA Ltd 1968 (4) SA 793 (W) at 803F.

2 This phrase is borrowed from H R Hahlo & E Kahn The South African Legal System and its Background (1968)

566.

3 This contrast was drawn most famously by Watermeyer J in Perlman v Zoutendyk 1934 CPD 151 at 155 and

Van den Heever JA in Preller v Jordaan 1956 (1) SA 483 (A) at 504. The Continental legacy and its superiority

are stressed in T W Price 'Aquilian liability for negligent statements' (1950) 67 SALJ 138, 257 & 411 and

'Aquilian liability and the "duty of care": a return to the charge' 1959 Acta Juridica 120; J C van der Walt case

note on SA Bantoetrust v Ross and Jacobz (1977) TSAR 273 and 'Nalatige wanvoorstelling en suiwer

vermoënskade: Die Appélhof spreek 'n duidelike woord' (1979) TSAR 145; N J van der Merwe & P J J Olivier

Die onregmatige daad in die Suid-Afrikaanse reg 6 ed (1989) at 16-23; and J Neethling, J M Potgieter & P J

Visser Law of Delict (1999) at 4-5.

4 This history is recounted in D Hutchison 'Aquilian liability II (Twentieth Century)' in R Zimmermann and D

Visser (eds) Southern Cross: Civil Law and Common Law in South Africa (1996) 595.

5 The pivotal importance hereof is emphasised by Hutchison (n 4) 627-9.

6 Strikingly, Van der Merwe & Olivier (n 3) 22 support their observation that 'the importance of our common

law lies especially in the fact that it lays down general principles and provides points of departure which can be

expanded and built upon according to changed circumstances, practical needs and developed legal thought'

(my translation), with a quotation of Innes J's famous dictum inBlower v Van Noorden 1909 SC 890 at 905

that, '[t]here come times in the growth of every living system of law when old practice and formulae must be

modified in order to keep in touch with the expansion of legal ideas, and to keep pace with the requirements of

changing conditions.'

7 See also M M Corbett 'The role of policy in the evolution of our common law' (1987) 104 SALJ 52 and A van

Aswegen 'Policy considerations in the law of delict' (1993) 56 THRHR 171.

2000 Acta Juridica 1

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'foreseeability,' 'cause' and other conceptual contortions. 8 The development of a concept

that at once enables, acknowledges, justifies and guides the judicial development ofa

major branch of the common law deserves to be regarded as one of the foremost

achievements of South African lawyers.

Despite, or perhaps because of, the remarkable success of this continuation in South

Africa of the Roman-Dutch legal tradition, the time is ripe for a re-examination of the

concept of wrongfulness as employed in the law of delict. As instances in which the

boundaries of delictual liability are redrawn accumulate ever more rapidly, particularly in

the field of liability for negligently inflicted harm under the actio legis Aquiliae, the

virtues of this concept increasingly appear elusive. We have now reached a point where

often the only assistance it appears to offer to judges and practitioners is to direct them

to ad hoc decision-making on the basis of 'general reasonableness' in the light of a grab-

bag consisting of 'all the circumstances of the case'. 9Indeed, the Supreme Court of

Appeal recently felt itself compelled to state no more than that 'it will depend on the

facts of the particular case' whether 'moral and ethical obligations' will be adjudged to

have

2000 Acta Juridica 3

'metamorphose[d] into legal duties'. 10Boberg's somewhat cynical description of

wrongfulness as but a 'cloak of respectability for judicial gut-reaction' 11 appears to have

been vindicated.

While this has not affected the continued pliability of the boundaries of civil liability,

nor the capacity of the courts to resolve novel disputes, it does represent an erosion of

the most important promise held out by the boni mores criterion, namely to render the

process and the basis of the judicial development of the law more transparent and

certain. Differences among judges and commentators regarding the place and function of

the idea of wrongfulness in the conceptual structure of the law of delict, 12 about whether

8 See the contrast in Hutchison (n 4) between judicial approaches prior to, and after, the judicial adoption of

the boni mores criterion. Union Government v Ocean Accident and Guarantee Corp Ltd 1956 (1) SA 577 (A) at

585C-E contains a rare judicial acknowledgement of the 'measure of artificiality' attendant upon using

foreseeability as the touchstone. I do not mean to deny that these concepts play important roles in

demarcating the scope of liability in delict, but simply to emphasise that this development permitted frank

acknowledgement of the role of policy considerations. Government of the Republic of South Africa v Basdeo

1996 (1) SA 355 (A) provides a recent illustration of the significance of foreseeability. See further n 227 and

the accompanying text.

9 See Indac Electronics (Pty) Ltd v Volkskas Bank Ltd 1992 (1) SA 783 (A) at 797F; Knop v Johannesburg City

Council 1995 (2) SA 1 (A) at 27E-I; Administrateur, Transvaal v Van der Merwe 1994 (4) SA 347 (A) at 361G-

362B; Minister of Law and Order v Kadir 1995 (1) SA 303 (A) at 318EI; Administrateur, Natal v Trust Bank van

Afrika Bpk 1979 (3) SA 824 (A) at 832 in fine-833A; Bayer South Africa (Pty) Ltd v Frost 1991 (4) SA 559 (A)

at 570D-F; Government of the Republic of South Africa v Basdeo (n 8) at 367G-H.

10Cape Town Municipality v Bakkerud 2000 (3) SA 1049 (SCA) at 1056E-G.

11 P Q R Boberg The Law of Delict; vol 1: Aquilian Liability (1984) 146.

12 Contrast Mkhatswa v Minister of Defence 2000 (1) SA 1104 (SCA) at 1111 para 18 ('The question of

negligence is the logical starting point to any enquiry into the defendant's liability, for without proof of

negligence considerations of wrongfulness and remoteness will not arise.') and Sea Harvest Corporation (Pty)

Ltd v Duncan Dock Cold Storage (Pty) Ltd 2000 (1) SA 827(SCA) at 837 in fine-838 A ('If the omission which

causes the damage or harm is without fault, that is the end of the matter. If there is fault, whether in the form

of dolus or culpa, the question that has to be answered is whether in all the circumstances the omission can be

said to have been wrongful') with Cape Town Municipality v Bakkerud (n 10) at 1054 para 9 ('Any attempt to

decide whether a particular omission will potentially ground liability by merely measuring it against the

standard of conduct to be expected of a reasonable person will fail First, that test is sequentially inappropriate.

It is, of course, the classic test for the existence of blameworthiness (culpa) But the existence of culpa only

becomes relevant after the situation has been classified as one in which the law of delict requires action.') and

Administrateur, Transvaal v Van der Merwe (n 9) at 364G/H ('The negligence question can only be answered

once it has been established which legal duty rested on the defendant and that that legal duty has been

breached.' My translation); as well as Boberg (n 11) 271; Van der Merwe & Olivier (n 3) 111 and 134;

Neethling, Potgieter & Visser (n 3) 119 ; and Van der Walt & Midgley Delict: Principles and Cases vol 1 (1997)

55.

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a particular issue raises a wrongfulness question or a question of fault 13or

remoteness, 14 and about the correct manner for determining what the boni mores

require, 15 seem to bear out this impression. The concept of wrongfulness developed and

applied in South Africa consequently seems ever more distant from central objectives

that the Rule of Law, and thus every rule of law, are meant to promote. This ought to be

a matter of

2000 Acta Juridica 4

concern both for those who have seen the law of delict as exemplifying the manner in

which the Roman-Dutch legal legacy has enabled the South African law of delict to avoid

sharing the fate of the Common Law, the other great tradition that contributed to its

development, of becoming 'more like a muddle than a system', 16and for those who are

anxious about the legitimacy, moral as well as social, of our legal system. The examples

cited in this paragraph and the preceding one show not only that it is hard to maintain

that the concept of wrongfulness today achieves any more than its predecessor, the

English duty of care described by Schreiner JA as merely 'a device of reasoning . . .

[that] helps to avoid the impression of delivering an unreasoned moral judgment ex

cathedra',17 but also that there is little reason, if any, for thinking that it does even this

much. 18

This outcome would have surprised neither J C De Wet, nor Tom Price. The former

had, after all, warned that the 'objective test of reasonableness' that came to be adopted

by the Appellate Division and virtually the whole legal academy as the touchstone for

determining whether an act was wrongful by virtue of being contra bonos mores was

circular, 19 while the latter maintained that there was no need for such a concept

alongside fault in the developed law. 20 Yet this state of affairs should not blithely be

accepted, for recent comparative research has established that wrongfulness 'plays a

decisive role in establishing liability under the law of every country' surveyed. 21 For this

reason I wish to pay tribute to Professor Feenstra through exploring the possibility that

the failure of the concept of wrongfulness to live up to its promise was not pre-ordained

and that the judicial labour expended thereon has not been in vain. I do so by offering a

new understanding of what is involved in determining whether an act caused harm

13 See, for instance, the complaint by Neethling et al (n 3) 148 that Government of the Republic of South Africa

v Basdeo (n 8), which treated the question whether the plaintiff was a foreseeable victim as pertaining to

wrongfulness, 'obscured' the 'modern distinction in our law of delict between fault and wrongfulness'. See also

the differences in opinion recounted in Boberg (n 11) 39 regarding the correct place of so-called 'subjective

factors', and the disagreement between him and Neethling et al (n 3) 45-6 regarding the role of fault in the

determination of wrongfulness.

14 Most notable here is the contrast between the courts' treatment of the 'floodgates argument' as an aspect of

wrongfulness, and the insistence by Van Aswegen (n 7) as well as Neethling et al (n 3) that this is a

remoteness issue. See, too, the long-running objection by Van der Merwe & Olivier (n 3) at 196-225 against

the judicial use of causal remoteness to accommodate some policy considerations: in their view, these belong

to wrongfulness.

15 See notes 45 to 65 and the accompanying text for divergent judicial formulations of the appropriate test, and

note the contrast between the courts' unfailing insistence that wrongfulness involves a policy enquiry (see the

cases cited in notes 9-12) and JNeethling 'Die onregmatigheidsvereiste by deliktuele aanspreeklikheid weens

die nalatige veroorsaking van suiwer ekonomiese verlies' (1983) 46 THRHR 205, 209-11 who argues that,

although policy considerations may be a reason for denying liability, they cannot affect the lawfulness of an

act, and fall within the province of the legislature rather than the courts.

16 A W B Simpson 'The common law and legal theory' in A W B Simpson (ed) Oxford Essays in Jurisprudence

(1973) 99.

17Union Government v Ocean Accident and Guarantee Corp Ltd (n 8) at 585D-E.

18 Boberg (n 11) 214 seems to agree: 'The legal convictions of the community cannot be established by expert

evidence: it is for the Court to say what they are. More realistically, the Court, after considering all the facts,

will form an intuitive opinion as to whether the defendant should have acted, which it will then justify by

invoking the legal convictions of the community as interpreted by itself.'

19 See his book review of an earlier edition of Van der Merwe & Olivier (n 3) (1970) 33 THRHR 68, 71.

20 See especially T W Price 'Some further observations on liability in delict for "acts of omission" ' (1950) 13

THRHR

21 E Koziol 'Conclusions' in E Koziol (ed) Unification of Tort Law: Wrongfulness (1998) 129.

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