BARKING UP THE WRONG TREE ‒ THE ACTIO DE PAUPERIE REVISITED Van Meyeren v Cloete (636/2019) [2020] ZASCA 100 (11 September 2020)

It is trite that the South African law of delict follows a generalising approach. This entails that liability will only ensue when all the elements of delict are present. South African law does not recognise individual “delicts”. The generalising approach followed in South African law is qualified in that there are three main delictual actions, namely the actio legis Aquiliae for patrimonial loss; the actio inuriarum for loss arising from intentional infringements of personality rights; and the Germanic action for pain and suffering, in terms of which a plaintiff can claim compensation for negligent infringements of the physical-mental integrity. This approach is further qualified in that numerous actions dating back to Roman law still exist in our law today. Included in this mix are the actions for harm caused by animals, such as the actio de pauperie, the actio de pastu, and the actio de feris, each with its own requirements. There have been questions as to whether these actions, in particular the actio de pauperie, still form part of South African law. In Loriza Brahman v Dippenaar (2002 (2) SA 477 (SCA) 487) the defendant claimed that the actio was no longer part of the South African law. The Supreme Court of Appeal (SCA) per Olivier JA held that the actio de pauperie had been part of South African law for more than 24 centuries and not fallen into disuse. Olivier JA held that the fact that the action is based on strict liability (one of the arguments raised against it) is no reason to ban it from South African law as strict liability was increasing and in suitable instances fulfils a useful function.The SCA, again, recently confirmed the continued existence of the action in South African law in the case of Van Meyeren v Cloete ((636/2019) [2020] ZASCA 100 (11 September 2020) 40). In this case, the SCA had to decide whether to extend the defences against liability in terms of the actio de pauperie to the negligence of a third party that was not in control of the animal. The defendant held that the court should develop the common law in this regard. Considering both case law and the requirements for the development of the common law, the SCA held that such an extension could not be justified.

STATE LIABILITY VIS-À-VIS VICTIMS OF CRIME IN POST-1994 SOUTH AFRICAN CASE LAW – SOMETHING NEW OR A REINVENTED WHEEL?

Since 1994 South African courts have dealt with numerous cases where victims of crime have sued the State for its failure to protect them from criminal violation. This article explores these cases in order to ascertain the juristic nature of this liability and the criteria applied in ascertaining whether said liability exists under given circumstances. The author concludes that the legal remedy granted victims is based on the normal rules of the law of delict. Despite the constant reference by judges to constitutional imperatives, the matter is guided by the normal delictual criteria of reasonableness and public policy which, granted, have to be ascertained in deference to constitutional norms. The essential test has thus not changed since to the inception of the Constitution. Nevertheless, it appears that the courts have drawn fresh impetus from the Constitution in granting the claim of the victim of crime. South African courts have thus far shown opposition to the granting of punitive or constitutional damages to victims of crime though the possibility of the granting thereof in future has not been ruled out unequivocally.

Transforming the Law on Psychiatric Lesions

In this article, I trace the development in the law of delict of recognising general damages claims on account of psychiatric lesions with the aim of making suggestions on how to transform it. Using the tragic case of Michael Komape as a springboard for the discussion, I argue that even though the Supreme Court of Appeal has recently brought clarity on the law on psychiatric lesions, more transformative work still needs to be done. More specifically, this article contends that the constitutional right to bodily and psychological integrity might require us to rethink the high evidentiary threshold that courts have set for proving the element of harm in cases related to psychiatric lesions. I argue that this can be done in at least three ways: First, by very cautiously bringing about a development that would involve protecting victims of psychological harm whose expert witnesses are shown to be inadequate despite all other facts indicating the existence of a psychiatric lesion. Secondly, by lowering the requirement of “recognised psychiatric lesion” to “grievous mental injury”, in line with similar arguments made in England. Thirdly, and most controversially, by acknowledging that perhaps the time has come for our law to recognise claims for so-called “grief in the air”.

Transforming age-related capacity for fault in delict

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 act in accordance with that appreciation (conation). One factor that affects a person’s capacity for fault is youthfulness. There are two schools of thought on age-related capacity for fault in the South African law of delict. On the one hand, Van der Walt & Midgley are of the view that the common law stipulates the rules regulating this issue. In terms 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.

The Civilian Law of Delict: A Comparative and Historical Analysis

This article explores the civilian tradition of the European law of delict. Part 1 tells the story of the birth of modern civil law of delict in the 19th century codifications in continental Europe, rooted in Roman law and Enlightenment Natural Law. Examples are the French and German codes, and the Japanese as a legal transplant. Fault, unlawfulness (Rechtswidrigkeit), damage, and causation are the central categories. Part 2 focuses on the challenges of industrialisation: enterprises as new actors, industrial accidents, technical risks, insurance. This part discusses the changes the civil law of delict and the common law of torts underwent to cope with these challenges. Part 3 draws some consequences from these developments. It outlines the basic structures of a postmodern civil law of delict, explicitly differentiating it from the law of torts, and as a basis for further developments in 21st century. This structure has three main features: liability for personal fault, liability for defective business activities, and Gefährdungshaftung.

10. Obligations Arising from Delict

This chapter discusses the Roman law of delict. It covers wrongful damage to property; theft and robbery; insulting behaviour; praetorian delicts; liability for damage caused by animals; and the quasi-delict. A delict, as one of the main sources of an obligation, can be defined in broad terms as a wrongful act which causes damage to someone’s personality, his family, or his property, and for which the victim or his heirs is entitled to compensation. There is an obvious parallel between the Roman delict and the common law tort; but the analogy should not be pursued too far since the Roman law of delict had a strong penal element—the law penalized the conduct of the wrongdoer, as well as ensuring that the victim was adequately compensated.

The Impact of Deepfakes on the Right to Identity: A South African Perspective

The right to identity aims to protect the subjective interests of individuals in their likeness, image, voice, and other distinctive personality attributes. The right to identity is legally recognised in South Africa, but deepfakes have a tendency to devalue this right. Deepfakes are created with deep learning software that enables users to create deceptive videos, sound recordings, and photographs of events and people that are indistinct from reality. This goes against a person’s right to control the use of their likeness. South African law does not directly regulate the creation and publication of deepfakes. Liability for the publication of deepfakes may be established using principles in different fields of law, such as the law of delict and criminal law. However, the dissemination of deepfakes on the internet continues to evolve, as they become more difficult to detect, and this necessitates a new perspective on how to provide sufficient remedies for victims whose right to identity is violated through deepfakes. It also calls for the refinement of establishing the liability of people who are tagged to deepfakes posted on social media. This article aims to highlight the challenges in protecting the right to identity and establishing liability under South African law in the context of deepfakes.

The Influence of "Reasonableness" on the Element of Conduct in Delictual or Tort Liability - Comparative Conclusions

In this contribution the influence of reasonableness on the element of conduct in the South African law of delict will be analysed and compared with the requirement of some form of conduct in English tort law, American tort law and the French law of delict. Fundamental similarities and differences among the different legal systems must be considered. France and South Africa follow a generalising approach to determining a delict while English and American law have a system of separate torts. Even though English and American law do not explicitly refer to the requirement of conduct in tort law, it is generally implicitly required. This is the case whether one is dealing with the tort of negligence or the intentional torts. In French law too, a fait générateur (a generating, triggering, wrongful act or event) generally must also be present in order to ground delictual liability. The concept of fait générateur is broader than the concept of conduct found in the other jurisdictions in that it extends beyond what is regarded as human conduct. The conduct in all the jurisdictions may be in the form of a commission (a positive, physical act or statement) or an omission (a failure to act). The requirement that conduct must be voluntary is generally found in South African, English and American law (with an exception applying to mentally impaired persons) but not in France. Naturally, it is unreasonable to hold a person liable without conduct which results in the causing of harm or loss. In all the above-mentioned jurisdictions, it would generally be unreasonable to hold the wrongdoer liable in delict or tort law if the omission or commission does not qualify as some form of conduct. Thus the influence of reasonableness on the element of conduct in all the above-mentioned jurisdictions is implicit.