Transforming age-related capacity for fault in delict

• Author: Zitzke, E.
• Date: 19 May 2021
• Pages: 367-396
• Published date: 19 May 2021
• Citation: (2021) 138 SALJ 367
• DOI: https://doi.org/10.47348/SALJ/v138/i2a5

367

TRANSFORMING AGE-RELATED CAPACITY

FOR FAULT IN DELICT*

EMILE ZITZKE†

Senior Lecturer, University of the Witwatersrand

For a wrongdoer to have ‘capacity for fault’ in the South African law of delict, it is

widely accepted that the wrongdoer must possess the ability to distinguish between

right and wrong (cognition) and the ability to a ct in accordance with that ap preciation

(conation). One factor that aects a person’s capacity for fault is youthfulness. There

are two schools of t hought on age-related capacit y for fault in the South African la w of

delict. On the one hand, Van der Walt & Midgley are of the view that the common

law stipulates th e rules regulating this issue. In ter ms of this paradigm, the minimum

age for capacity for fault is seven years. On the other hand, Neethling & Potgieter

were, until very recently, of the view that the Child Justice Act should apply to the

determination of a child’s capacity for fault. At the time of Neethling & Potgieter’s

earlier writing, the minimum age for capacity for fault under the Act was ten years.

Since June 2020, this age has been raised to twelve. In this article, the tension

between these two schools of thought is analysed, and an attempt is made to resolve

the tension through a proposal for a transformative, constitutional development of the

common law of delict.

Delict – capacity for fault – age – constitutional development of the

common law

I THE TENSION

It is widely accepted that fault is one of the general elements for delictual

liability in terms of the South African common law.1 It is also widely

accepted that the enquiry into fault comprises both a ‘prerequisite’ and

‘substantive’ dimension.

Substantively, fault is traditionally said to comprise either ‘intention’ or

‘negligence’.2 Intent ion colloquially i nvolves the situation where an al leged

wrongdoer acted on purpose. For purposes of the law of delict, intention

*An earlier draft of this article was presented at the Private Law and Social

Justice Conference held at Nelson Mandela University on 19–20 August 2019.

Helpful com ments were received by various c onference participa nts at that event.

I have also had meaningful discussions about this topic with and/or feedback

on this article from Cornelius Visser, Andrea Weideman, Gareth Sleigh, Nicola

Soekoe and Carron Fick. With that said, I am the factual and legal cause of all

mistakes.

† LLB LLD (Pretor ia).

1 This is unequivocally acknowledged by J Neethling & J M Potgieter

Law of Delict 8 ed (2020) 4 and Max Loubser & Rob Midgley (eds) The Law of

Delict in South Africa 3 ed (2017) 24. There is a more reluctant acceptance of the

existence of a coherent doctrine of fault by Anton Fagan Aquilian Liability in

the South African Law of Delict (2019) 4.

2 Fagan op cit note 1 at 4; Neethling & Potgieter op cit note 1 at 155; and

Loubser & Mid gley op cit note 1 at 138.

https://doi.org/10.47348/SALJ/v138/i2a5

(2021) 138 SALJ 367

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368(2021) 138 THE SOUT H AFRICAN LAW JOUR NAL

https://doi.org/10.47348/SALJ/v138/i2a5

seems to mean the direction of the will of the wrongdoer towards a

harm ful result whi le being conscious of the wrong fulness of that conduct .3

Negligence colloquially involves a person acting carelessly. Classically,

the legal test for negligence in South African law involves weighing up

the wrongdoer’s conduct against that of a reasonable person, objectively

tested, in terms of reasonable foreseeability and reasonable preventability.

The classical test was laid down in Kruger v Coetzee as follows:

‘For the purposes of liability culpa ar ises if –

(a) a diligens paterfamilias in the position of the defend ant –

(i) would foresee the reasonable possibility of his conduct injuring

another in his person or property and causing him patrimonial

loss; and

(ii) would take reasonable steps to guard aga inst such occurrence; and

(b) t he defendant failed to t ake such steps.

This has been constantly stated by t his Court for some 50 years.’4

However, before embarking on the substantive dimension of the fault

enquiry, we must deal with a preliminary issue. The prerequisite for

fault questions whether the alleged wrongdoer was doli et culpae capax

at the time of the delict. In other words, the question is whether the

alleged wrongdoer could be said to be ‘accountable’5 or, probably more

accurately, whether the alleged wrongdoer had ‘capacity for fault’. If an

alleged wrongdoer lacks capacity for fault, the question of negligence or

intent does not arise at all. South African law tests capacity for fault with

reference to whether the alleged wrongdoer had cognition (that is, the

ability to distinguish between right and wrong) and conation (that is, the

ability to act in accordance with that appreciation).6 Clearly, these factors

are highly subjective. Whether an alleged wrongdoer had cognition and

conation can not ionally be inuenced by var ious factors. Case law i n delict

and crim inal law shows that cap acity can potential ly be inuenced by age,7

mental health,8 and intoxication.9 This article will focus on age-related

capacity for fault in the law of delict.

3 See Dantex Investment Holdings v Brenner1989 (1) SA 390 (A) at 396C–E, the

correctness of which is questioned by Faga n op cit note 1 at 132.

4Kruger v Coetzee 1966 (2) SA 428 (A) at 430E–F.

5Neethling & Potgieter op cit note 1 at 157; and Loubser & Midgley op cit

note 1 at 139.

6 In the context of the law of delict see Weber v Santam1983 (1) SA 381 (A) at

398H; Neethling & Potgieter ibid at 157; and Loubser & Midgley ibid at 139. In

the context of criminal law see Jonathan Burchell Principles of Criminal Law 5 ed

(2016) 251; and C R Snyman Criminal Law 6 ed (2014) 155.

7 See the authorities discussed in part II below.

8S v Mahlinza1967 (1) SA 408 (A) at 414G–415H; S v Stellmacher 1983 (2) SA

181 (SWA) at 182G–183A; and S v Laubscher1988 (1) SA 163 (A) at 166F–167C.

9S v Chretien1981 (1) SA 1097 (A) at 1106B–C.

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