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-REL ATED CAPACITY

FOR FAULT IN DELICT*

EMILE ZITZKE†

Senior Lectu rer, University of the Witwatersran d

For a wrongdoer to h ave ‘capacity for fa ult’ in the South Afr ican law of delic t, it is

widely accep ted that the wrongdoe r must possess the ability t o distinguish betwee n

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

(conation). One facto r that aects a p erson’s capacity for fault is youth fulness. There

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

delict. On the on e hand, Van der Walt & Midgley are of the vie w that the common

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

age for capacity fo r fault is seven years. On t he other hand, Neethl ing & Potgieter

were, until very re cently, of the view that the C hild Justice Act shoul d apply to the

determinati on of a child’s capacity for fault. At t he time of Neethling & Potg ieter’s

earlier wr iting, the minimum age for c apacity for fault unde r the Act was ten year s.

Since June 2020, thi s age has been raised to t welve. In this articl e, the tension

between these tw o schools of thought is a nalysed, and an attempt i s made to resolve

the tension throu gh a proposal for a transform ative, constitutiona l development of the

common law of deli ct.

Delict – capac ity for fault – age – constit utional development of the

common law

I THE TENSION

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

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

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

‘substantive’ dimension.

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

‘neg l ig e nc e’. 2 Intent ion colloquially i nvolves the situation where an al leged

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

* An earl ier draft of this ar ticle was prese nted at the Private Law and Soci al

Justice Conference held at Nelson Ma ndela Univers ity on 19–20 Augu st 2019.

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

I have also had meaning ful d iscussions about this topic w ith and/or feedback

on this ar ticle from Cornelius Visser, Andrea Weidem an, Gareth Sleigh, Nicola

Soekoe and Car ron Fick. With th at said, I am t he factua l and legal cause of all

mistakes.

† LLB LLD (Pretor ia).

1 This is unequivoc ally ack nowledged by J Neeth ling & J M Potg ieter

Law of Delic t 8 ed (2020) 4 and Ma x Loubser & Rob Midgley (eds) The L aw of

Delict in South A frica 3 ed (2017) 24. There i s a more reluctant acceptance of the

existence of a cohe rent doctrine of fault by A nton Fagan Aqu ilian Liability in

the South Afri can Law of Del ict (20 19) 4.

2 F agan op cit note 1 a t 4; Neethli ng & 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 w rongdoer towards a

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

Negligence col loquial ly involves a person act ing carelessly. Classical ly,

the legal test for negligence in South African law involves weigh ing up

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

tested, in terms of reasonable foreseeabil ity and reasonable preventabil ity.

The classica l test was la id down in Kruge r v Coetzee as follows:

‘For the purpo ses of liabi lity culpa ar ises if –

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

(i) would fore see the reason able possibility of hi s conduct injuring

another in h is person or proper ty and causing hi m patrimon ial

loss; and

(ii) wou ld take reasonable steps to g uard aga inst such occurrence; and

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

This ha s 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 preliminar y issue. The prerequisite for

fault questions whether the alleged wrongdoer wa s doli et culpae capax

at the time of the del ict. In other words, t he question is whether the

alleged w rongdoer could be sa id to be ‘accountable’5 or, probably more

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

alleged w rongdoer lacks capacity for fau lt, the question of negligence or

intent does not ar ise at all. South Afr ican law tests capacity for fau lt with

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

ability to distinguish bet ween right and wrong) and conat ion (that is, the

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

are high ly 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 ar ticle wil l focus on age-related

capacity for fault in the law of delict.

3 See Dantex Investment Holdi ngs v Brenner 1989 (1) SA 390 (A) at 396C–E , the

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

4 Kruger v Coetzee 1966 (2) SA 42 8 (A) at 430E–F.

5 Neethl ing & Potgieter op cit note 1 at 157; and Loubser & Mid gley op cit

note 1 at 139.

6 In the context of the law of delict see Weber v Santa m 1983 (1) SA 381 (A) at

398H; Neethl ing & Potgiet er ibid at 157; and Loubser & Midgley ibid at 139. In

the context of cr imin al law see Jonat han Burchel l Principl es of Criminal L aw 5 ed

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

7 See the authoritie s discussed in part I I below.

8 S v Mahlinza 1967 (1) SA 408 (A) at 414G–415H; S v Stellmacher 1983 (2) SA

181 (SWA) at 182G–183A; and S v Laubscher 1988 (1) SA 163 (A) at 166F–167C.

9 S v Chretien 1981 (1) SA 1097 (A) at 1106B–C.

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