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 deli ct 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 pedi gree for bequeathing such impressive adaptability to this branch of South
African law, contrasting the 'Continental way' of appl ying general principles of liability
with what is seen as the fragm ented and casuistic approach of the En glish law of torts. 3
There is much to support this assessment. South African writers and courts, especially i n
the twentieth century, extracted from Roman-Dutch materials a conceptual structure
that seems to exempli fy not only the elegance , but also the elasti city of simplicity. 4 This
is particularly true of the concept of 'w rongfulness', or 'unl awfulness', 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 i t is contra bonos mores, 5 South 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 r emains in step wi th the society i t is meant to serve. 6 This
splicing of a candid recognition that judges not only apply l aw, but also develop it, with
an insistence that this serves a legitimate function, 7 largely obviated the need t o pursue
legal evoluti on behind a screen of questionable interpretations and re-interpretati ons 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 in Blower 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 concep t
that at once enables, acknowledges, justifies and guides the judicial development of a
major branch of the common law deserves to be regarded as one of the foremost
achievements of South African lawyers.
Despite, or perhaps becau se of, th e 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 empl oyed in the law of delict. As i nstances 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 app ear 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 reasonabl eness' in the light of a grab-
bag consisting of 'all the circumstances of the case'. 9 Indeed, the Supreme Court of
Appeal recently felt itself compelled to state no more than that 'it will depend on the
facts of th e particul ar case' whether 'moral and ethical obligations' will be adjudged to
have
2000 Acta Juridica 3
'metamorphose[d] into legal duties'. 10 Boberg's somewhat cynical description of
wrongfulness as but a 'cloak of respectability for judicial gut-reaction' 11 appears to have
been vindicated.
While th is has not affected the c ontinued pli ability of the boundaries of civil liability,
nor the capacity of the courts to resolve n ovel 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 regardi ng 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.
10 Cape 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 w rongfulness question or a questi on of fault 13 or
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, an d thus every rule of law, are meant to promote. Thi s ought to be
a matter of
2000 Acta Juridica 4
concern both for those who have seen th e law of delict as exemplifying the manner in
which the Roman-Dutch legal legacy has enabl ed 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 b ecoming 'more like a muddle than a system', 16 and for those who are
anxious about the legitimacy, moral as well as social , of our legal system. The exampl es
cited in this paragraph and the preceding one show not only th at 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, i f any, for thi nking 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 vi rtue 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 thi s 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 th rough exploring the possibility that
the failure of the concept of wrongfulness t o live up to its promise was not pre-ordained
and that the judicial labour expended thereon has not been i n 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 J Neethling '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.
17 Union 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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