Why intention matters and how it does

• Jurisdiction: South Africa
• Pages: 283-313
• Published date: 24 December 2019
• Author: Fagan, A.
• Date: 24 December 2019
• Citation: 2019 Acta Juridica 283

283

Why intention matters and how it does

ANTON FAGAN*

This essay looks at the role that intention plays in the determination

of Aquilian liability. The essay explains that the role is an important,

if restricted, one. There are three reasons for this, each of which is

discussed in detail in the essay. First, certain kinds of har m-causing

conduct can be wrongful, for the purpose of Aquilian liability, only if

performed with intent. Second, even if harm-causing conduct could be

wrongful also if performed negligently, the fact that it was performed

intentionally may increase, even signicantly, the likelihood that it was

wrongful. Third, in the case of certain kinds of harm-causing conduct,

the fact that the conduct was performed with intent excludes from

the determination of wrongfulness, and thus also of liability, the kind

of trade-os involved in determining negligence. Having explained

the role of intent in Aquilian liability, the essay goes on to discuss an

important implication of the fact that intent has this role. Intentional

harm-causing conduct was wrongful, for the purpose of Aquilian

liability, if and only if it breached a duty not to cause harm intentionally

– in the same way that negligent harm-causing conduct was wrongful

if and only if it breached a duty not to cause harm negligently. A proper

understanding of the role that intent plays in Aquilian liability thus

provides further reason to reject the standard view of wrongfulness, as

constituted by the breach of a duty not to cause harm (full stop) or of a

duty not to cause harm by conduct that was ex post facto unreasonable.

I INTRODUCTION

No one doubts that intention matters, very much, to liability under

the actio iniuriarum. By contrast, the importance of intention to

Aquilian liability is sometimes overlooked. This essay shows that,

even if intention has only a limited part to play in the determination

of Aquilian liability, that part is an important one. The essay further

shows that intention is able to play this part only because the duty

that has to be breached, in order for intentional harm-causing

conduct to be wrongful for the purpose of Aquilian liability, is a

duty not to cause harm intentionally.

* BA LLB (Cape Town)BA DPhil (Oxon); WP Schreiner Professor of Law in

the UCT Law Faculty.

2019 ACTA 283

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284 PRIVATE LAW IN A CHANGING WORLD

II WHY INTENTION MATTERS

There are three reasons why intention matters to the determination

of Aquilian liability. The rst is that our law makes it a necessary

condition for certain kinds of harm-causing conduct to be wrongful,

and thus to be capable of giving rise to Aquilian liability, that the

conduct was performed with intent. The second is that, even when

it is not a necessary condition for a particular kind of harm-causing

conduct to be wrongful that it was performed with intent, because

negligence suces, the fact that it was performed intentionally rather

than negligently may increase, even signicantly, the likelihood that

it was wrongful. The third is that, in the case of certain kinds of

harm-causing conduct, the fact that the conduct was performed

with intent excludes from the determination of wrongfulness, and

thus also of liability, any cost–benet analysis of the kind involved

in determining negligence.

(1) A necessary condition for wrongfulness

According to our law, certain kinds of harm-causing conduct

could be wrongful, and thus give rise to Aquilian liability, only if

performed with intent. It is not enough that they were performed

negligently. Examples of such conduct are:

(i) incorrect decisions made during an adjudicative process;

(ii) failures to comply with administrative justice in the award

of a tender;

(iii) interference with a contractual relationship;

(iv) injurious falsehood.

In respect of each of the four forms of conduct listed above our law

takes the view that, if it was intentional, it could be wrongful, but if

it was merely negligent, it was lawful. Some extracts from the cases

bear this out. The rst two extracts concern incorrect decisions made

during an adjudicative process. They come from the Supreme Court of

Appeal’s judgment in Telematrix v Advertising Standards Authority SA:

An incorrect decision which was arrived at negligently during an

adjudicative process which purports to serve the public interest cannot,

in my judgment, be regarded as unlawful.1

1 Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority

SA 2006 (1) SA 461 (SCA) 474B.

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