Principles of liability in the modern law of delict: Holy cows or horses for courses?

• Jurisdiction: South Africa
• Author: J R Midgley
• Date: 29 May 2019
• Pages: 79-98
• Citation: 2000 Acta Juridica 79
• Published date: 29 May 2019

Principles of liability in the modern law of delict: Holy cows

or horses for courses?

2000 Acta Juridica 79

J R Midgley *

Rhodes University, Grahamstown

The South African law of delict consists, not of a random collection of miscellaneous,

unrelated wrongs, but a set of principles, rules and concepts founded on historically-

developed broad bases of liability, which provide elastic and adaptable principles for

application in novel situations. 1 Although the modern law still reflects some of the

concepts found in the lex Aquilia, the actio iniuriarum and the German ic remedy for pain

and suffering, it also contains principles which evolved subsequently — withi n the civilian

tradition, and outside of it. So it is common cause that for the Aquilian action and the

Germanic remedy the f ollowing elements must be present: patrimonial harm or pain and

suffering; conduct; a causal link between th e harm and the conduct; wrongfulness; and

fault, either in the form of intention or negligence. For the actio iniu riarum the elements

are: an injury to a personality interest; wrongfulness; and fault i n the form of intention.

So much is trite; as well as, one would have thought, that these elements are distinct

from one another and that each serves a different purpose. But it appears not. Recent

decisions of the Supreme Court o f Appeal seem to have blurred settled distinctions and

one is left to wonder whether the Court is not evolving, deliberately or inadvertently, a

new set of principles up on which liability is to be determined. The purpose of this paper

is to scrutinize some of the recent Supreme Court of Appeal deci sions concerning

Aquilian li ability to determine whether there is still unanimity on the nature and role of

the various elements of liability, as well as the interplay betw een them. 2

* BCom LLB (Rhodes) PhD (Cape Town), Professor and Dean of Law, Rhodes University, Grahamstown.

2000 Acta Juridica 80

Recent supreme court of appeal decisions

Groenewald v Groenewald 3

The parties' marriage was coming to an end. They met at their business premises on th e

third floor of a building so that the respondent wife could recover some items. The

appellant husband had become angry becau se he had to wait for his wife (she had gone

out with another man) and when she arri ved at the office he attempted to strangle he r,

threatened her with a knife and said he was going to kill her that evening. Various

events fol lowed, but the upshot was that the husband locked his wife in the office and

went downstairs to wait for her c ompanion, whom the husban d had threatened to kill as

well. While he was awa y, she telephoned a number of p eople to ask for help and then

she cli mbed onto a window ledge from which she fell and sustained injuries. While she

was lying inju red the husband again held a knife to her throat and threatened to kill her

that evening. At this stage help arrived. The wife sued for damages.

The Court noted that in delictual cl aims of this nature tw o separate issues arise: first,

the question of fault and second, determining for what consequences the defendant

would be liable. 4 It noted that the husband would be hel d to have been at fault as long

1 J C van der Walt & J R Midgley Delict, Principles and Cases vol 1 'Principles' (1997) para 18; Perlman v

Zoutendyk 1934 CPD 151 at 155.

2 Similar trends can be found in respect of the actio iniuriarum (if interpretations of National Media Ltd v

Bogoshi 1998 (4) SA 1196 (SCA) are correct), but these fall outside the ambit of this paper.

3 1998 (2) SA 1106 (SCA). The judgment is dated 23 March 1998. Streicher JA delivered the judgment, with

Mahomed CJ, Olivier, Zulman and Plewman JJA concurring.

4 At 1112G-H.

2000 Acta Juridica 79

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