About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

122 S. African L.J. 90 (2005)
Rethinking Wrongfulness in the Law of Delict

handle is hein.journals/soaf122 and id is 98 raw text is: RETHINKING WRONGFULNESS IN THE LAW OF DELICT ANTON FAGAN* W P Schreiner Professor in the Faculty of Law, University of Cape Town I INTRODUCTION According to South African law, wrongfulness is a necessary condition for delictual liability. In other words, for delictual liability in South African law, it is not enough that harm was caused intentionally or negligently: in addition, the harm must have been caused wrongfully.1 Wrongfulness is determined in part by the application of rules, in part by the exercise of judicial discretion. Some rules create rebuttable presump- tions as to wrongfulness, such as the rule that it is prima facie wrongful for a person to cause physical injury to another by positive conduct,2 or the rule that it is prima facie wrongful to defame another.3 Other rules conclusively determine wrongfulness, such as the rule that it is not wrongful to cause harm in defence,4 or the rule that a defamatory statement is not wrongful if it is published on a privileged occasion.5 The application of both the presumption-creating and the conclusive rules is governed by further rules. There are, for example, further rules determining when a publication will be defamatory (and thus prima facie wrongful),6 and there are further rules determining when a defamatory publication will be privileged (and thus not wrongful after all).7 Notwithstanding the existence of rules like these, wrongfulness is on occasion determined by the exercise of judicial discretion. Discretion sometimes has to be exercised in order to apply a rule *BA LLB (Cape Town) MA DPhil (Oxon). Much of the work on this essay was done during a sabbatical at the Max Planck Institute for Foreign and International Private Law in Hamburg, whilst funded by the Alexander von Humboldt Foundation. I would like to express my gratitude for the support provided by both institutions. ' Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd 1985 (1) SA 475 (A) at 4961-497A: 'It is trite law that, to succeed in [a delictuall claim, a plaintiff must allege and prove that the defendant has been guilty of conduct which is both wrongful and culpable . . .' (emphasis added). 2 Lillicrap supra note 1 at 49713-C; Indac Electronics (Pry) Lid v Volkskas Bank Ltd 1992 (1) SA 783 (A) at 793J-794A; Knop vjohannesburg City Council 1995 (2) SA 1 (A) at 26F--H; BOE Bank Ltd v Ries 2002 (2) SA 39 (SCA) at 46F-G; Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) at 441 E-G. 3 Suid-Afrikaanse Uitsaaikorporasie v O'Malley 1977 (3) SA 394 (A) at 401H-402A; May v Udwin 1981 (1) SA 1 (A) at I0D; Marais v Richard 1981 (1) SA 1157 (A) at 1166G-H. I Kgaleng v Minister of Safety and Security 2001 (4) SA 854 (W) at 865C-D. 5 O'Malley supra note 3 at 403A-B; Borgin v De 4lliers 1980 (3) SA 556 (A) at 571F-G; May v Udwin supra note 3 at 1OF-G. 6 See Demmers v Wyllie 1980 (1) 835 (A); Mohamed vJassiem 1996 (1) SA 673 (A). 7 See De Waal v Ziervogel 1938 AD 112.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most