This chapter provides the reader with a foundation from which to view the law of damage by observing how the common law has developed. The fact that the common law is capable of development and change is key to the proposition of this dissertation. This will become even more apparent later in the dissertation when we consider the concurrent operation of the common law of delict and the Constitution.
It is not necessary providing a summary of the development of the Aquilian action to commence before the seventeenth century. This is so because during the course of the seventeenth century the actio legis Aquiliae was transplanted to the Cape of Good Hope as a part of the Roman-Dutch law brought by the settlers of the Dutch East India Company.
By the seventeenth century the actio legis Aquiliae had developed to embrace general principles of liability for patrimonial loss to person or property wrongfully and culpably caused. It had lost its penal nature and become purely compensatory, which was reflected in the rules governing its transmissibility.225
At the beginning of the twentieth century the South African courts seemed poised finally to round off the long process of historical development of the Aquilian action
224Id at 560.
225Lee, RW, Cupidae Legum Juventuti The Elements of Roman Law with a translation of the Institutes of Justinian 3rd edition (1952) 394. Zimmermann, and Visser, Civil Law and Common Law in South Africa (1996) 561.
by accepting the simple, general proposition that all damage caused intentionally or negligently is actionable, unless it can be justified.226
When the twentieth century drew to a close the Aquilian liability was very much closer to reaching the logical end point of its long process of historical development.
Dramatic developments, particularly over the past two decades have opened the door in principle to liability for negligent omissions, negligent misstatements, and for negligently inflicted loss of a purely economic nature227. The key to these developments has been the revitalization of the old requirement of iniuria, in its new appearance of wrongfulness as a criteria for liability. This requirement, distinct from and logically anterior to that of fault, provides a place for the open consideration of policy factors in the development of liability for negligent conduct, and hence has come to perform a vital role as a mechanism of control over the gradual expansion of Aquilian liability in South African law. Some have stated that it substitutes
‘discretion for principle’, but its positive impact on our law is undeniable.228 However, armed with this discretionary tool, the courts have boldly ventured into territory previously thought too hazardous229, secure in the knowledge that they can always retreat if the danger of expanding the Aquilian liability or making the wrong decision becomes too great. Significant as these developments are, the stage has not yet been reached where it can be said that all financial harm culpably caused is prima facie wrongful and therefore actionable. That is certainly true in the field of omissions, where the boni mores do not require one to take positive action whenever a failure to do so would foreseeably cause harm to another; and it seems also still to be true in the case of purely economic loss.230
226Ibid.
227Zimmermann, and Visser Op cit note 225 at 634. Neethling, Potgieter, and Visser, Law of Delict, 6thedition (2010) 9. Matthews v Young 1922 AD 492 504.
228Ibid. Neethling, Potgieter, and Visser, Law of Delict, 6thedition (2010) 11. Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd 1985 1 SA 475 (A) 503 – 504 states that South African law approaches the matter in a more cautious way …and does not extend the scope of the Aquilian action to new situations unless there are positive policy considerations which favour such an extension.
229Examples in case law are Government of the Republic of South Africa v Grootboom 2001 1 SA 46 (CC), 2000 11 BCLR 1169 (CC), and Soobramoney v Minister of Health, KwaZulu Natal 1998 1 SA 765 (CC).
230Zimmermann, and Visser, Civil Law and Common Law in South Africa (1996) 634.
If Aquilian liability is to be reduced to one general principle today, that principle would have to be that all patrimonial loss caused wrongfully and culpably is actionable, which is essentially what Watermeyer J stated in Perlman v Zoutendyk.231 In expressing South African law this extensively the learned Judge emphasizes its inherently civilian nature and makes it look very different to that of England.
Outward appearances can however sometimes be misleading232
There is no deficiency of decisions233 highlighting the viewpoint that the Aquilian action has in fact reached its logical end development in South African law. In contradistinction to earlier cases234which require physical injury to person or property to found Aquilian liability, it is today established law that compensation for so-called
“pure” economic loss may in principle be claimed ex lege Aquilia. In Coronation Brick (Pty) Ltd v Stachan Construction Co (Pty) Ltd235, Booysen J clearly stated that the legal basis of the plaintiff’s claim is that of the lex Aquilia. In essence the Aquilian action lies for patrimonial loss caused wrongfully and culpably. Although the contrary view had long been held by many authorities236, it seems clear that the fact that the patrimonial loss suffered did not result from physical injury to the corporeal property or person of the plaintiff, but was purely economic, is not a bar to the Aquilian action.237
It may be concluded that despite a few decisions238 to the contrary, there is a very strong tendency in case law to recognize Aquilian liability for all patrimonial loss caused wrongfully and culpably. It is in any event apparent that the extent of this liability has increased a great deal in modern law and can still be expanded.239 Our courts tend to adopt a conservative approach to the expansion of the Aquilian action
2311934 CPD at 151.
232Zimmermann, and Visser Op cit note 230 at 635.
233Lillicrap, Wassenaar and Partners v Pilkington Brothers South Africa Proprietary Limited 1985 1 SA 475 (A).
234Combrinck Chiropraktiese Kliniek (Edms) Bpkv Datsun Motor Vehicle Distributors (Pty) Ltd 1972 4 SA 185 (T) at 191 - 192, Union Government v Ocean Accident and Guarantee Corporation Ltd 1956 1 SA 577 (A) at 585 - 586.
235 1982 4 SA 371 (D) para 377.
236Supra.
237Neethling, Potgieter, and Visser, Law of Delict, 6thedition (2010) 9 – 10.
238Combrinck Chiropraktiese Kliniek (Edms) Bpkv Datsun Motor Vehicle Distributors (Pty) Ltd 1972 4 SA 185 (T) at 191 - 192, Union Government v Ocean Accident and Guarantee Corporation Ltd 1956 1 SA 577 (A) at 585 - 586.
239Supra.
and will therefore, according to Lillicrap, Wassenaar and Partners v Pilkington Brothers South Africa Proprietary Limited240 only allow such an extension if it is justified by policy considerations: “South African law approaches the matter in a more cautious way. . . and does not extend the scope of the Aquilian action to new situations unless there are positive policy considerations which favour such an extension”.241