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Law of Delict and the South

African Constitution (continued)

Study Unit 1.3

Delict in a multi-cultural society

Study Unit 1.3.2

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Important:

• This subsection looks at the extent to which the principles and

values of African, Muslim and Hindu cultures have come to
influence the common law principles of delict.
• The main reading for this subsection is Loubser & Midgley (eds)
The Law of Delict in South Africa pp. 60-72. You will also have
to look at certain provisions of the Constitution as well as the
summary of the judgment in Fosi v Road Accident Fund 2008 3
SA 560 (C).
• Please note that these slides are not a summary of the
prescribed material listed above; they are intended to only
supplement this material by explaining certain of the key
concepts.

Multi-cultural values

• Why should law of delict include multi-cultural values?

• Constitution:
• Sec 9(3)
• Sec 30 and 31

• So: African customary law and other cultural values

must now be considered when courts develop common
law of delict
• Fosi v Road Accident Fund 2008 3 SA 560 (C) –
summary on L&M p. 62/ headnote of judgment

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African customary law

• Constitution:
• Sec 211(3)
• Sections 31(2) and 39(3)

• Question: what is the relationship between African

customary law and the Bill of Rights?

Islamic and Hindu law

• Compared to African customary law:
not explicitly recognised in Constitution as “prioritised”
systems in the same way as African customary law
• But: what do these systems have in common with African
customary law in the context of developing common law of
delict in SA? (Try to answer this on your own.)

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Influence of multi-cultural values on law of delict

• There are two specific areas of law of delict where we can

see the influence of different cultural values since the
coming into operation of the Constitution. These are:

• Action of dependants
• Defamation

In the next part we will briefly give some background on

these two areas.

“Action of dependants”
• This action is a specific type of claim
recognised in SA law of delict – similar
to actio legis Aquiliae (claim for
patrimonial loss)
• Applies where a breadwinner is killed
due to delict committed by wrongdoer
(e.g. car accident – negligent driver)
• Prior to his death, the breadwinner
supported dependants, who now lose
this financial support due to his death
 Dependants suffer
patrimonial loss
• Law of delict: allows dependants to bring
claim against wrongdoer

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Action of dependants

• Dependants can claim compensation for loss of support

arising from death of breadwinner
• One of requirements for this action: plaintiff (dependant)
must prove that deceased breadwinner had a legal duty to
support him/her

• Example: A (father) supports B, his wife, and

C (minor child)
• Legal duty to support: due to -
• B: Legally valid marriage
• C: Blood relationship

 Key question for delictual action of dependant: when

does legal duty to support arise?

Action of dependants
• Legal duty to support: often depends on whether there is
legally valid marriage between breadwinner and spouse
• SA common law: definition of “legally valid” marriages was
limited
• African customary unions and Islamic marriages:
 both potentially polygamous
 were not regarded as legally valid marriages

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Action of dependants
• THEREFORE: SA law did not recognise legal duty of support
between two spouses and between parents and children in these
unions/ marriages
 Dependants had no claim for loss of support where
breadwinner was killed through wrongful conduct
• Changed in Amod v Multilateral Vehicle Accident Fund 1999 4 SA
1319 (SCA): discriminatory effect of common law was recognised,
claim of dependent (in this case widow of deceased husband) was
allowed

Another example: defamation

• Definition of defamation in SA law of delict: intentional

publication of material which is defamatory towards plaintiff (in
other words, which infringes on plaintiff’s right to reputation)
• How do courts determine whether statement made by defendant
is defamatory?
• Look at whether statement would be regarded as harmful to
defendant’s reputation “in the eyes of right-thinking persons
generally”
• Common law: courts would not have regard to views and
opinions of particular segment of society
• But: in Mohamed v Jassiem 1996 1 SA 673 (A): Court
recognised exception to the above rule – can under certain
circumstances consider values of segment of society to
determine whether material was defamatory

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Study Unit 1.3.2: Study Outcomes

After studying the materials and completing the

activities in this study section you should be able to:
• Describe how the principles and values of African, Muslim
and Hindu cultures have influenced the common law
principles of delict.