Law of Injuries

Zitzke (ed)
Visser
Samaradiwakera-Wijesundara
 Law of Injuries
Emile Zitzke (editor)
Associate Professor, University of the Witwatersrand
LLB, LLD (UP)

CJ Visser
Senior Lecturer, University of the Witwatersrand
LLB (UJ), LLM, PhD (Wits)

Charmika Samaradiwakera-Wijesundara
Senior Lecturer, University of the Witwatersrand
Attorney
LLB, LLM (Wits), PhD Candidate (Wits/ISS Erasmus University, Rotterdam)

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 First Edition 2023
Based in large part on earlier versions made available to students as Critical Delict in 2019-
2020 and Reparations in 2021-2022

© The Authors
2023

This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivs 3.0

Unported License. To view a copy of this license, visit
http://creativecommons.org/licenses/by-nc-nd/3.0/ or send a letter to Creative Commons,
PO Box 1866, Mountain View, CA 94042, USA.

We have written this book in the firm belief that knowledge should not be commodified.
However, to avoid exploitation of our hard work, our copyright in this work subsists. You
must acknowledge the authors of this work appropriately when you distribute it or rely on its
ideas. You may not distribute the work for any commercial gain whatsoever. You may not
bring about any changes to this work and then distribute it.

Suggestion bibliographic entry: <Chapter Author>. 2023. “Name of Chapter” in Law of

Injuries, edited by Emile Zitzke. University of the Witwatersrand: Johannesburg.

Cover Image: by _Nini_ from Pixabay.

Cover Design by the Editor
Icons used in the book are from www.flaticon.com

Typeset in Rastanty Cortez and Calibri Light

Typeset by the Editor

iii
 Book Cover Note
The book cover is a photograph of a sculpture by Polish artist Igor Mitoraj (1944-2014). The
Polish Ministry of Culture and Heritage notes that: “He visualised the imperfection of human
nature by deliberately damaging and cracking the surface of statues.”

The statue on our book’s cover is of a human face with a scar on the left cheek. In a sense,
the sculpture captures all three types of harm discussed in this book: dignity infringements,
bodily harms, and property damage. The scar on the sculpture’s face resembles the flow of
tears from the eyes — hurt feelings. The scar could similarly be interpreted to be an actual scar
— pain and suffering. The scar could also be viewed in a literal sense — damage has been done
to the sculpture.

This sculpture reminds us of our imperfect nature as human beings. In this book, we will
deal with some of the most awful manifestations of that imperfect nature, when human beings
cause injuries to one another. At the same time, it reminds us that there is beauty in our
brokenness.

May this inspire you as you start your journey with the law of injuries.

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 Editor’s Acknowledgements
I arrived to teach my first delict lecture at Wits in 2018 with no textbook under the arm — just
a prescribed list of over 200 apex court cases and a vague idea about what the law of delict
was all about. The Wits delict class of 2018 deserves a special mention. Together, we
discovered what delict is and could be about. Together, we wrestled with a great body of case
law that oftentimes did not make as much clear sense as many textbooks sell them to do.
Together, we brainstormed various conceptual, ideological and socio-political conundrums set
up by the law of delict through the cases. To everyone who meaningfully participated in the
Wits delict course in 2018, you have my sincere expression of gratitude for your patience,
compassion, and enthusiasm for this subject that I have come to love. The names are too many
to list here.

In 2019, I started with the first draft of this textbook, together with the great help of my
colleagues and friends CJ Visser and Charm Samaradiwakera-Wijesundara. I am most thankful
to them for the spirit of progressive unity and critical intellectual power with which we tackled
this project, together. We taught from the earlier drafts since 2019 alongside Charles de
Matos-Ala and Samantha Barkley, whose comments and feedback have enriched this text in
various ways. A number of students also provided us with feedback on content, structure,
formatting and the like. I have decided to list them all here, in alphabetical order, because their
time and care invested in this project ought to be acknowledged: Azminah Jhetam; Chanel
O’Carroll; Errin Brits; Greg O’Connor; Harold Miller; Harshul Mistry; Jaryd Thomas; Jonah
Fouche; Karabo Mokgonyane; Lineker Marrian; Michael Renwick; Mila Harding; Naadhirah
Mayet; Nabila Hendricks; Nicola Soekoe; Shamara Polliack; Tarika Patel; and Thabo Mhlanga.

Our delict tutors over the last few years have also invested a lot of time into refining the
text and practice questions. They are: Brian Preller; Chibie Odimegwu; Gabrielle Berkowitz;
Morris Sibanda; Olwethuthando Ndlovu; Rudo Kaseke; and Shanine Naidoo.

I also want to thank you, the reader, in advance for taking this subject matter seriously. And,
perhaps equally importantly, for indulging the various typos and formatting errors that you
might encounter while reading this text. In saving costs to ensure a 100% free book, we have
not made use of a formal typesetter or language editor. If you pick up on any mistakes that
you would like us to know about and correct in future revision services and editions, please let
us know. Who knows, maybe your name will appear on the next revision service’s
acknowledgements page.

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 Our Angles of Approach
Our study in this book is critical, transformative, and, in part, decolonial.

OUR STUDY IS CRITICAL AND TRANSFORMATIVE

The study is critical and transformative in the sense described earlier by Emile Zitzke in “Stop
the Illusory Nonsense! Teaching Transformative Delict” (2014) Acta Academica 52. What
follows is a summary and slight restatement of the ideas first developed there.

Before we get to the four cornerstones of the critical study of delict, we must start with an
introductory warning. People sometimes hear the word “critical” and assume that critique
involves destroying law in totality without thinking about its possibilities and meaningfulness
to some people. So, to be clear, we want to emphasise that while the critical study of the law
encourages us to think “outside of the box” it certainly requires us to “know what is inside the
box” before thinking outside of it. As such, our firm position is that students need to know
what “is” before we can proceed to consider “what ought to be”. The richness of the critical
approach to law, as Douzinas and Geary teach us in Critical Jurisprudence (2005), lies in the
fact that we will pull together questions of “what is the law?” with “does the law reflect
justice?”. With this caveat as backdrop, let us now consider the four main principles of critical
legal education that we will put forward in this book.

First, we are not going to be closed minded. We do not pledge allegiance to the past or
current legal positions unthinkingly. We are continuously committed to thinking about how we
can make the law better, insofar as that is possible. With that said, our minds will be open, but
not so open that our brains fall out. In this process, we might identify various ways in which
the law upholds social structures and power relations. For example, hypothetically, we might
discover that a certain rule overprotects the powerful at the expense of the vulnerable. In
other words, the law sometimes maintains inequality. At various points, we will encourage you
to think about how the law might change in order for us to achieve greater equality, resisting
“hierarchy” and “false consciousness” (the latter being a belief that the way things currently
are is normal and desirable without giving it any further thought). Is this us pushing a non-legal
political agenda? No. It is us taking the Constitution’s demand for striving towards substantive
equality seriously. Equality is very much a legal concern, as much as it is a political one.

Secondly, we recognise that the law is filled with tensions (competing positions) that
usually divide opposing values. Let us take a specific defamation case as an example. Suppose
that there is a famous politician who is accused of sexual harassment over a long period of
time. A newspaper publishes an article about the allegations of sexual harassment against the

vi
politician. On the one hand, the politician has an interest in having his reputation (external
dignity) protected. On the other hand, the newspaper has the right to freedom of expression
and the public has an interest in knowing about the alleged misconduct. Here, the right to
reputation aims to protect the individual while the public’s interest in the matter has a strong
public or community orientation. In its most radical form, the opposing values (individual
protection vs community protection) cause a tension that creates a political dilemma. By
“politics” we mean “our visions of the good life” or “power relations” and not necessarily party
politics. In this way, law and politics collide. This political nature of law has at least two
implications. (i) Legal outcomes are often unpredictable (or indeterminate) because of the
tensions inherent in law and the difficult choices that judges must make, trying to reconcile
almost irreconcilable values; and (ii) your personal evaluation of whether the extant law (or
the outcome of a case) is good or bad, just or unjust, will possibly involve asking political (“good
life”) questions. In the case of the harassing politician, depending on what you value, you might
have an intuitive gut response to protect free speech, or you might err on the side of protecting
the community. To be very clear, we are not prescriptive in what your personal politics should
be. We are simply opening up the space for healthy debate and discussion where a plurality of
views is welcomed. Intellectual lawyers do not simply know what the law says. They are able
to engage in discussions about what the law ought to be, giving good reasons for their views.
To repeat a point made earlier: The type of political debates at play here are very much legal
debates thanks to the entrenchment of various rights in the Constitution.

Thirdly, our study will be “historically self-conscious”. By this we mean that we take legal
histories seriously — especially the history of law in the space we call South Africa. Sometimes,
when people study legal history, they do it to romanticise the past and call on us to return to
ancient times. This is not our aim here at all. We will study history with the aims of
contextualisation and to highlight how law has changed, so that we can think innovatively
about how it might change in future too.

Fourthly, we are interested in opening up the “arena of ideas”. Instead of demanding that
you think in a particular way, we will encourage you to formulate your own educated and well-
reasoned views on various topics. To do this, we will first give you a good grounding in what
the “mainstream” legal positions are. But then, to provide you with tools necessary to “think
beyond the mainstream”, we will sometimes refer you to legal philosophical texts in the
tradition of “outsider jurisprudence” (where questions of race, gender, sexuality and the like
are prominent) that could be used as tools of critique. In this way, we will not only be critiquing
the law internally using “law against law” (for example, weighing the common law against the
Constitution). We will also be critiquing law externally using “other ideas vs law” (for example,
using critical race theory to critique mainstream definitions of delict).

To summarise, the critical approach to the study of law — and to this subject matter in
particular — involves the concomitant projects of de-construction and re-construction. We will
chip away the bad, possibly keep the good (if there is any) and imagine new futures by being

vii
innovative visionaries. This is what we believe the Constitution requires. And this is where the
transformation of law and society might lie.

OUR STUDY IS, IN PART, DECOLONIAL

People very often associate decolonial theory with similar circumspection (and terror) as
critique. To put everyone at ease, this study is decolonial in the comparative legal sense, as
described by Emile Zitzke in “Decolonial Comparative Law: Thoughts from South Africa” (2022)
RabelsZ 189-225. The gist of the argument there is that postcolonial and decolonial theory can
teach us much about how we value certain knowledge systems at the expense of others.

Historically, South African legal scholars have not been very excited about comparing the
common and customary law with their respective European and African roots. The argument,
that is embraced in this book, goes that the common law might learn good things from the
customary law even though we are conditioned to think that only the opposite interaction can
take place.

Some people take the view that common and customary law must be taught in different,
mutually exclusive courses. But that type of separatism does not really help us cross cultural
divides. Others say that the customary law should always become more like European common
law. That type of mimicry probably does not treat African knowledge systems with the respect
that is deserved. Some others might say that we need a new, universal set of laws that display
our collective values as a rainbow nation. But universalism eventually does not leave much
space for embracing difference.

Instead of separatism, mimicry, and universalism, this book will teach common and
customary law alongside one another. The decolonial turn in this book thus gives credence to
both intellectual histories in equal measure. Instead, a type of “active subversive hybridity” is
embraced. By hybridity we mean that both sets of legal histories can learn from one another,
in principle. By subversive hybridity we mean that we are specifically interested in opening up
the possibility that the customary law can teach the common law some good lessons. We will
actively seek out such examples in this book.

Are you ready for a critical, transformative, and decolonial experience?

viii
 How This Book Works
For reasons that we hope will become clear as this book progresses, our journey with this
subject matter will be structured around the following five themes:

• Part A is entitled Foundations. This part of the book provides you with the foundational
understanding of what Injury Law is about. We cover the definition of the discipline and
some other related concepts. We also explain how one should go about using sources
of law to work with injury-law related problems.

• The next three parts will consider specific types of injuries. Part B specifically looks at
injuries to Dignity.

• Part C turns to Property.

• Part D considers the Body.

• Part E is called Litigation. There we will explore who can sue and be sued in injury-law
litigation. We will also consider how one might go about using injury law as a strategic
tool for the betterment of society. In these discussions, we will tie together everything
expounded in the preceding topics, with the ultimate goal of providing you with some
tips regarding the planning of an injury lawsuit.

These five Parts are further sub-divided into Chapters so that we serve you content in bite-
size pieces. Within the Chapters, you will often find the following icons to help you navigate
through the material:

To encourage you to discover your own voice on discipline, we have put a bit of text in each
chapter to give you some basic background knowledge of the topic at hand. But, thereafter, you
will be required to read and explore by yourself what the various sources of law actually say
about the topic. Whenever you see this icon of the book and glasses, you will be prompted to
“Find and Read” prescribed sources.

Realising that some of you have thus far passed various law modules without even reading a
headnote of a case, we will sometimes provide you with questions to reflect on while doing your
readings. The aim is to support you to actually engage with the readings in meaningful ways. We
call these “Questions for Reflection”.

ix
 Occasionally, we will provide you with useful conceptual and/or practical tips to assist you in
making sense of the content. We call these boxes of information “Useful Tips” and should not
be understood as “tips for tests”.

We provide you with some hypothetical example scenarios so that you can apply what you have
read. However, we provide no suggested answers to these questions or summaries of readings.
That is for you to figure out by yourself. The role of your lecturer will be to facilitate discussion
on the content, meaning and implications of the different sources of law that we ask you to read.
However, it is our fundamental belief that lecturers should allow students the space — within
reason — to form their own views about what the sources of law actually say, while valuing a
plurality of perspectives and innovation in problem solving. In this book, we call these practice
questions “Exercises”.

The topics we explore in this book are socially, economically and politically relevant. They can
also be particularly controversial. This ensures a thrilling intellectual experience. But, the cost
is that you will need to be intellectually brave. Brave to interrogate and possibly let go of some
of your currently dearly held beliefs that may not be defensible, even to yourself; brave to state
your own well-reasoned opinion on a matter after giving it careful thought. TW: This book
contains legal issues that relate to race, gender, sex, sexuality, economics and finance,
metaphysics, violence, and politics. Law, as a whole, should probably come with that trigger
warning. There are very few spheres of the messy violence that is life, if any, that the law does
not touch in some way.

We have decided to opt for a rather loose and colloquial style of writing here. Studying law
doesn’t have to be like eating sawdust. We believe that humour is more memorable and will
enthuse you more than conventional legal writing. We hope that this will enhance your
learning experience. We hope that you will appreciate that we address you directly in the text
as the reader, inviting you into this discipline in a hope that you will fall in love with it.
Obviously, for purposes of assessment and formal legal communication, you will adopt the
appropriate style dictated by the lecturers concerned.

We appreciate that it is impossible for many students to read Afrikaans, especially the
archaic Afrikaans in old Appellate Division judgments that are just about 2mm away from
Dutch. We have thus decided to provide students with translations of some of the most
important Afrikaans Appellate Division extracts in this book. Our translations are accurate in
our view but certainly simplified in some cases to avoid clumsy indirect speech. As such, we
drew inspiration from Rockstar-poet Karen Zoid who says in Vir Jou: “Ek wil vertaal in waterverf
dimensies” (roughly: I want to translate in watercolour dimensions).

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Your mind is about to be taken on an exciting journey like no other law course will or can.* So
fasten your mental seatbelts because things are about to get lit.

* Shame, all courses are unique and special in their own way. But we are not going to apologise for being excited about this one!

xi
 Part A

Foundations
by Emile Zitzke

1
 Chapter 1: Re-Defining Delict
The world is a dangerous place.

People’s rights can be put at risk by floods, lighting strikes, earthquakes, tornados, volcanic
eruptions and the like. A natural disaster could destroy some houses and cars, seriously
violating the rights to property that the victims once had. That disaster could cause people to
end up in hospital (violating their right to bodily integrity) or, even worse, the mortuary
(bringing an end to the right to life). In this process, people could be stripped of their rights
dignity, privacy and freedom too. Usually when harms of these kinds are caused by natural
disasters, we would say that the victims of the harm “carry their own loss”. No other person is
necessarily morally to blame for these natural disasters occurring and no one will automatically
be liable in law to try to reverse the effects of the harm that has been caused on account of a
sense of moral blameworthiness. If you love your fellow humans, you might feel like you want
to help the victims of these disasters, but that desire does not arise because your own
wrongdoing has caused the victims’ harm in question. That desire simply arises because you
are not a mean person .

People’s rights can also be put at risk by misbehaving human beings and other entities like
corporations and the government acting (or, let us be realistic, not acting) through its various
functionaries. A careless driver might fail to keep a proper lookout at an intersection and then
collide with another vehicle, infringing on the victim’s right to property. A careless police officer
might shoot towards a criminal but then hit an innocent bystander, infringing on the
bystander’s right to bodily integrity. Worst case scenario, the bystander’s right to life could
have been ended. A naughty school child, or an adult acting like a naughty school child, might
send a WhatsApp message to Mang-Mang saying: “You’re a ####### moron” (censored for
your sensitive eyes that have definitely never seen the word “#######” before). The offending
words violate Mang-Mang’s dignity in the sense of a feeling of self-worth. If that personal
message was not enough, the naughty person then turns to the magical place called Facebook
(your grandparents’ version of TikTok) to post an allegation that Mang-Mang is also a “pedo
guy”, while the person making the statement knows very well that this is not true. This could
have very serious repercussions for Mang-Mang because the right to dignity, in the sense of
reputation (roughly: what other people think of Mang-Mang), has been violated.

When naughty people, like those described above, behave on purpose or recklessly in
inflicting harm onto others, with no good reason, our intuitive response is often to say that the
harm-causing person (let us call them the “wrongdoer”; sometimes in cases referred to as “the
defendant” or “the respondent”) is morally blameworthy and ought to be held responsible to

2
try and reverse the effects of the harm that has been caused to the “victim” (sometimes in
cases referred to as “the plaintiff” or “the applicant”). When the wrongdoer tries to “repair”
the harm that has been caused to the victim, we say that the wrongdoer makes reparations
(you can think of the word as “repair-arations”) to the victim.

Useful tip

When we introduce you to a new legal term, or an important thinker, we will put
it in bold, just like we did above for wrongdoer, victim, and reparations. It may
be useful for you to have a separate “terminology sheet” for each chapter where
you write down the definitions of these new concepts for ease of reference.

Reparations can take on different forms. In the case of the car accident mentioned earlier,
the wrongdoer can make reparations to the victim by paying for the cost of repair to the car.
For infringements to a person’s reputation, there might not be a quantifiable sum of money
that can repair the broken right to dignity, and so the wrongdoer might make reparations to
the victim by offering a public apology, a retraction of the statement, and then pay the victim
some money as a sign of acknowledging the wrong that has been committed.

Legally speaking, what draws the line between the first category of harms (occasioned by
nature, the universe, the gods, the devil, or whatever esoteric thing we want to ascribe
disasters to, where the victim carries their own loss) and the second category of harms
(occasioned by wrongdoers who owe reparations to the victims)?

The short answer has historically and traditionally been “the law of delict”. That is probably
also the title of the course that you are currently registered for, and the term that is used in
practice. Weirdly, this is not the title of the book that you are currently reading. The reasons
for this will become clear to you if you read on a little further.

1.1 THE TRADITIONAL SOUTH AFRICAN DEFINITIONS OF DELICT

1.1.1 The Latin Roots of “Delict”

The word “delict” is weird. We pronounce it “de-licked”, almost as if you are describing what
happens when licking is being undone — like de-activate or de-link. As you might have guessed,
our subject matter has nothing to do with licking.

People have used the word delict for hundreds of years because the Latin word delictum
roughly denotes the idea of “a wrong”. The word delict does not quite capture what we are
busy with though. If you think about it, any conduct that goes against a legal norm is “a wrong”.
Walking across the street where there is no pedestrian crossing is “wrong” but is clearly does

3
not fit into the scheme of examples of delicts we have given you in the introduction above
because there is no harm that necessarily needs repairing.

From our short discussion thus far, you can see that this subject that we are busy with is
really about injuries being suffered by people (for example, to their bodies, property, and/or
dignity) and the law’s response in repairing those injuries. In everyday terms, we are thus busy
with “the law of injuries”, as this book title suggests.

But how do South African scholars define the concept of a “delict”? Currently, there are
essentially two traditional schools of thought in this regard. We have the Continental tradition
and the English tradition.

1.1.2 The Continental Tradition

The Continental Tradition of delict comes from the European Continent. Continentalists tend
to define delict in terms of broad, general requirements that must be proven to establish
liability for injuries. For example, Unisa Professors J Neethling and JM Potgieter (2020, 4), two
of the most famous and influential delict thinkers in South Africa today, define a delict as
follows in their famous book called Law of Delict:

“A delict is the act of a person that in a wrongful and culpable way causes harm to another.”

From this definition we can derive five general elements of delicts: (1) an act; (2)
wrongfulness; (3) culpability; (4) causation; and (5) harm. This approach to defining delict
would say that whether we are dealing with harm to dignity, property, or the body, these five
elements must always be present.

The Dutch and German Civil Codes define delicts very similarly to Neethling and Potgieter.
We know that South African common law as we know it today has been heavily influenced by
the Roman-Dutch law in operation in the Netherlands around 1652 (#JanVanRiebeeck), and so
this similarity should not come as a total shock to us. Seeing that the European Continent
mostly employs general elements of liability, it is sometimes also called the generalising (or
generalist) approach to delict.

1.1.3 The English Tradition

For the English tradition we turn to — yes you guessed it — England. As a starting point, we
should note that they call delicts “torts”. Many countries that have been strongly influenced
by English law will also speak about torts. The United States of America and some East African
countries speak about torts too (#BritishColonisation).

English tort law did not develop from a common Roman legal ancestry like many of the
Continental jurisdictions. They did their own thing. As such, the idea of general elements is
mostly missing from tort law. In contrast to general elements for liability, the English casuistic
approach treats different types of injuries differently. The word casuistic is derived from “on a

4
case-by-case basis”. So, a case of property harm is treated differently to a case of dignity harm,
and so forth.

Practically, for example, in English law, for you to establish liability for the tort of negligence
(very roughly: certain property and bodily injuries), you must show (1) the existence of a duty
of care; (2) breach of the duty of care; and (3) causation. These elements do not really feature
in the tort of defamation where you must prove (a) a statement; (b) that was false; (c) and
caused you injury; (d) because it was published; and (e) does not fall within a category of
privilege. You should be able to see that the three requirements for the tort of negligence show
very little, if any, similarity with the tort of defamation. When we speak about the English
version of this area of law, we speak about the “law of torts”, in plural, because there are many
torts, each with their own requirements.

When each tort has a different set of requirements, we cannot define the law of torts in
terms of general requirements. Instead, we must try and define the essence of what the subject
matter involves. In the South African context, Wits Law Professor RG McKerron was someone
who thought about the law of delict in a casuistic way. In The Law of Delict (1971, 5) he defines
a delict as:

“The breach of a duty imposed by law, independently of the will of the party bound, which will ground an
action for damages at the suit of any person to whom the duty was owed and who has suffered harm in
consequence of the breach”.

This definition would be flexible enough to accommodate a situation where different injuries
are treated differently. For McKerron, the essence of delict seems to be a breach of a legal
duty. Whether his definition is good or bad is something I will deal with later in this chapter.

Useful tip

McKerron studied at the University of Oxford where he completed the degree

Doctor of Common Law. The next year he arrived at Wits to teach delict. Within
the following three years, he wrote what is arguably the first original and
comprehensive law of delict textbook for South Africa. Now, the first edition was
published in 1933 (and the seventh edition saw the light in 1971). That first
edition of the textbook was typed with a typewriter, and he left the copies in the
Wits library. In 1931 the Wits library burned down, and his entire manuscript
went up in flames too. He had a publishing deadline to meet and so very quickly
had to sit and rewrite the whole thing from memory! What useful tip do we
derive from this? Thanks to modern technology, we have the unique opportunity
to back up our work properly online. If we do not do this, our paper-written notes
could go up in flames too, and then we will be in the same disastrous position as
Professor McKerron. Honour his memory. Backup your work!

5
 You might recall that even though South Africa was colonised by the British after the period
of Dutch rule, the British did not intend to disrupt the laws that were in place in South Africa
all that much. At most, the idea was that South African law would receive English spicy sprinkles
(my words, not theirs). As such, the common law of delict remained fundamentally Roman-
Dutch in character, even though, over time, it has been infused with much English flavour.

There is probably a whole book to be written about the ideological battle that lies at the
heart of the Continental Tradition versus the English Tradition in the South African law of delict.
But I think that if we obsess over this debate, we would be missing a very important point.

1.1.4 Missing the Point

I would argue that because of the influences of both Roman-Dutch and English law on the
common law of delict in South Africa, we might have to acknowledge that both traditions are
somewhat alive and kicking in our law today. But not necessarily in the way that you would
imagine.

On the one hand, we have some authorities pointing in the direction of the Continental
approach to the South African law of delict. For example, in the early case of Perlman v
Zoutendyk 1934 CPD 151 at 155-158 it was said that:

“Roman Dutch Law approaches a new problem in the continental rather than the English way, because in
general all damage caused unjustifiably (injuria) is actionable, whether caused intentionally (dolo) or by
negligence (culpa)… Now the Roman Dutch Law upon the question has been considered and laid down by
the Court of Appeal in a number of cases and I must follow these cases.”

Since then, in more recent times, the Constitutional Court has endorsed the Continental
approach in De Klerk v Minister 2021 (4) SA 585 (CC) para 13:

“A delict comprises wrongful, culpable conduct by one person that factually causes harm to another
person that is not too remote.”

The five general elements are clearly displayed here in this quotation.

On the other hand, in South African law today, we must surely also recognise that we have
many other sources of law that regulate the field. For example, in some matters, like the Life
Esidimeni Tragedy, victims of injuries claim what is called “constitutional damages”. In such a
case the main source of law relied upon is the Constitution and not the common law with its
five elements.

In other cases, we have statutory delicts. For example, the issue of hate speech is regulated
by section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act
(PEPUDA) 4 of 2000. The elements of liability for hate speech do not comfortably reflect the
five general common-law elements. The remedies for hate speech, also do not imitate the
common law options. In this regard, the Constitutional Court recently said, in Qwelane v SAHRC
2021 (6) SA 579 (CC) para 95:

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 “In essence, section 10(1) can be described as a statutory delict that innovatively offers, unlike any crime
or other delict in our law, specific remedies concerning the right to equality…”

Then, we also have African customary law (indigenous law) that responds to injuries in various
ways — most often with liability being determined on a case-by-case basis, without any
reference to concepts like “wrongfulness” or “negligence” or “causation”, sometimes with
major variations between different cultural communities. In short, there are no general
elements for liability at customary law.

If the Constitutional Court is to be believed that we have “statutory delicts”, it is not too
much of a stetch to see how there can be “customary-law delicts” too. I would go as far as
saying that the African tradition of this discipline is another major, silently ignored tradition in
the intellectual history of the “law of delict” in South Africa. If we want to show equal respect
and concern for African knowledge systems, we cannot simply push it aside and pretend like it
does not exist. Professor Joel Modiri, a famous South African critical race theorist, writes the
following in “The Colour of Law, Power and Knowledge: Introducing Critical Race Theory in
(Post—) Apartheid South Africa” (2012) South African Journal on Human Rights 405, 419:

“Part of what makes the South African legal culture so conservative (and thus unhelpful, if not detrimental,
to the interests and plight of black South Africans) is the continuing interpretive legitimacy and dominance
given to the Roman Dutch Law (common law). There still remains the view that despite the common law
being thoroughly saturated in a ‘white, male, western and colonial perspective’, it can still provide access
to a neutral, pure and universal source of meaning for purposes of interpretation and adjudication. The
continuance of this formalist belief, both in legal practice, adjudication and in legal education, has had the
implication that the legal system is structurally determined to reflect and privilege a contingent and
contested (and whitened) view of law while falsely portraying it as neutral, normal and fair. In practice,
this view has undermined the idea of constitutional democracy and constitutional values as supreme and
the imperative to respect and acknowledge the living customary law and black indigenous values. [Critical
race theory’s] structural determinism thesis leads us to question how post-apartheid transformation can
take place in a legal system and legal culture that is still based on apartheid legal norms and categories.”

Thus, we cannot simply say that “the law of delict” as a big, overarching discipline is really
based on five elements. It would certainly be right to say that the common law of delict is
basically grounded in five elements. But it would be wrong to say that all delicts are based on
five elements.

In the past, I have heard the exclaim that there is no such thing as a “customary law delict”
because the word “delict” is, after all, an obscure European term with Latin roots, as explained
above. Fair point: Even me with my European ancestors find it hard to make sense of the word
“delict”. Worldwide, there is a plain legal language movement that encourages lawyers to use
terms that everyone can understand so that law and justice can become more accessible to
all. Maybe using obscure words like “delict” does not help us in making access to justice a
reality.

That got me thinking that we probably need to rethink what we call the overarching area of
law, and how we define it. We need to make it “proudly South African”, so to speak. My view

7
is that the broader area of law is called (in English) “the law of injuries”. Thus, the title of the
book. And we cannot simply define it in terms of the five elements, even though those five
elements are surely important for common-law delicts.

In case I have not been clear enough: I take the view in this book that good lawyers should
have a holistic understanding of the different sources of law that could apply in a case of
injuries. It makes a lot of sense, to me, to study the law of injuries more holistically, than simply
obsessing about the common law of delict. I argue that you must necessarily be able to juggle
the Constitution, statutes, customary law, and common law at the same time. We might
actually be surprised at what the common law with its European roots could learn from African
customary law.

The Constitutional Court seems to agree with the gist of what I have in mind. In MEC for
Health and Social Development, Gauteng v DZ obo WZ 2018 (1) SA 335 (CC) para 39-41 the
following was said (footnotes omitted):

“The three Graces of the South African legal system are civil law [Roman-Dutch law], common law [English
law] and [Africa] customary law. The free spirit of the third Grace makes it difficult for her to join in the
circle. To enable her to do so may be one of the great challenges of the new South African legal
order. Someone may then, perhaps, be able to tell the story of the Africanisation of Roman-Dutch law in
twenty-first century South Africa…. The free spirit of our third Grace has an important role to play in giving
content to the normative value system of our Constitution and thereby shaping the development of our
common law. Of course, customary law will also continue to play its independent role under the
Constitution as a pluralist choice of law to govern aspects of legal life. It is, however, also necessary to start
giving serious attention to how African conceptions of our constitutional values should be used in the
development of the common law in accordance with those values.”

This is, perhaps, where we might find at least one road that could lead to the decolonisation
of South African law. (Those of you who have nothing better to do, or who are interested in
what decolonisation could mean in the legal context, may read my piece called “Decolonial
Comparative Law: Thoughts from South Africa” (2022) RabelsZ 189-225, or you can read the
summary thereof in the frontmatter of this book describing our “Angles of Approach”.)

All this being said, how do we then define “the law of injuries”?

1.2 TOWARDS “THE LAW OF INJURIES”

As mentioned above, it would certainly be right to say that the common law of delict is basically
grounded in five elements. But it would be wrong to say that all injuries are regulated by five
elements.

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 Useful tip

When you sit in that job interview, and they ask you “what are the five elements
of a delict?”, please do not look confused. We have already told you those
elements are harm, conduct, fault (or culpability), wrongfulness and causation.

Even though the five elements clearly have some value for our understanding of the
common law of delict, we need a broader definition to describe South African injury law which
also includes constitutional-law injuries, statutory-law injuries, and customary-law injuries.

One way to go about this is to follow the example of Professors JC van der Walt and JR
Midgley. In Principles of Delict (2016, para 2) they suggest that the discipline can be defined in
a broad and a narrow sense. Broadly, we could say that we are dealing with “civil wrongs” as
opposed to criminal wrongs. Civil wrongs must be repaired. Criminal wrongs must be punished.
More narrowly, they also recognise that common-law delicts are based on five elements like
Neethling and Potgieter would say. While this is an important point to make, I do not think
they go far enough to really capture what I would call the law of injuries.

Can McKerron’s definition not be recycled? He does make some good points. The first good
point that he implicitly makes is that our discipline regulates both the conditions for liability
(what must we prove to hold a wrongdoer liable?) and the consequences for liability (how
should reparations be made?). I think that McKerron is unduly restrictive when he says that
the consequence for liability is invariably damages. In common-law defamation cases, for
example, we also have apologies and retractions as remedies. At customary law sometimes
wrongdoers make reparations by providing replacement things instead of money, and so the
list could go on. But another good point that he makes is that we are usually dealing with the
breach of a non-contractual legal duty of some kind. In other words, when a contract exists
between two people, we should give effect to what they agreed upon, so that we respect their
autonomy (freedom to make empowering choices about our lives). In the absence of a
contract, delict would step in: I do not have to enter into a contract with someone else asking
them to not crash into my car. If a wrongdoer crashes into my car, that wrongdoer has
breached a duty towards me that exists “independently of the will of the party bound” (to use
McKerron’s words).

The next big question of course is how we decide when a duty ought to be imposed on
someone. Internationally, there is scholarly movement that tells us that delict or tort law is
essentially about reparations for rights infringements. (Look at us helping you stay on top of
international trends!)

I sneakily alluded to this already in the introduction to this chapter: When I defame
someone, I am infringing their right to dignity-as-reputation, and so I need to make things right
with the victim. When I crash into someone’s car, I have infringed their right to property and

9
need to make things right with the victim. When I shoot someone, I have infringed their right
to bodily integrity and need to make things right with the victim.

To put it in more philosophical terms, the law of injuries is about ensuring corrective justice
once certain rights have been infringed. The idea is that once a right is infringed, it continues
to be broken until it is repaired. This “continuity thesis” was made popular by the late Professor
John Gardner from Oxford University (“What is Tort Law For? Part 1. The Place of Corrective
Justice” (2011) Law & Philosophy 1).

Corrective justice is typically associated with the “scales of

justice” that need to be rebalanced, which is such an essential
part of law that the classical image of Lady Justice is her with
a balanced scale in hand (see the photo on the right). Of
course, if I have shot someone, no amount of money is really
going to make them feel better. Giving them some money,
however, is the “next best thing” that we can do to make
things right. That is, to make reparations. It is never going to
restore perfect harmony, but it is certainly better than
retaliatory justice where we say “an eye for an eye” and allow
the victim to shoot the wrongdoer so that the scales of justice
would be rebalanced. We would argue that society is better
off with one person being shot (but paid money) instead of
two people being shot, causing double the problems for double the amount of people.

Building on the definitions of the South African thinkers who have come before me, I would
say that the law of injuries essentially aims to ensure corrective justice by stipulating the
conditions for and consequences of reparatory liability for certain interpersonal rights
infringements that do not necessarily arise from contractual arrangements or crimes.

You should recognise most of the elements in this definition. I specifically added
“interpersonal” here because when it comes to systemic rights infringements like colonisation,
apartheid, and the holocaust, a different set of rules should probably apply to address the
large-scale nature of the harms inflicted. I also say “certain” rights infringements because not
every right infringement will require reparations. In South African law it is widely accepted that
violations of the rights to dignity, freedom of the person, privacy, bodily and psychological
integrity, and property can attract reparatory liability. When it comes to other rights, we do
not have solid precedent in support of successful reparatory liability lawsuits. In this book,
which is necessarily introductory in nature, we will only cover a small selection of rights
infringements: dignity (Part B), property (Part C), and bodily integrity (Part D).

Implicit in my definition is that we are concerned with people’s rights, their duties, how the
law requires us to care for one another, and how we become responsible and accountable
humans. It is as much about correcting past rights infringements as it is about encouraging

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people to take preventative steps to avoid rights infringements. It is forward and backward
looking in nature. The law of injuries has the potential to change the way that you look at and
interact with the world. To borrow and tweak a famous phrase from a law teacher who had a
huge impact on my own thinking, Professor Pieter Carstens: The law of injuries is a lifestyle.

1.3 THANK YOU, NEXT

Now that we have a bird’s-eye view of what our subject matter in this course is and what it
purports to do, we can proceed to the next chapter in which we will discover where we find
the rules and principles of this discipline. In other words, we will now turn to the sources of
the law of injuries. As we have mentioned in this chapter, there is a need to juggle the
Constitution, legislation, customary law, and the common law. Given that we think about the
law of injuries as pivoting on interpersonal rights infringements, it should come as no surprise
to you that the Constitution and its Bill of Rights will take centre-stage in our discussions.
Before we get there, let us do the exercise below to ensure that we stay in control of the
subject matter.

Exercise 1 A
1. In one sentence explain why each of the following statements are disagreeable. Refer
to appropriate case law where applicable.

1.1. The “five elements of delict” is a myth — they do not exist and do not legally matter in
South African law today.

1.2. The wrongdoer is the one who starts legal proceedings in an injury-law dispute.

1.3. When a criminal goes to jail to “serve his time” he is “making reparations”.

1.4. The word “delict” comes from the Dutch word “delik” and roughly means “duty-breach”.

1.5. The Continental approach to the law of delict is only found on the African Continent.

1.6. The Continental approach to the law of delict is also called the “generalist approach”
because the rules apply to everyone in all places.

1.7. Neethling and Potgieter’s definition of delict does not differ all that much from McKerron’s
definition.

1.8. The English legal tradition of injury law is also called the “calculated approach”.

1.9. In Lesotho, they follow the system of torts.

1.10. There is no such thing as a “statutory delict”.

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2. Multiple choice – select the correct option.

2.1. The Constitutional Court encourages us to consider the ways in which the
customary law might have a positive influence the common law in the following case(s):
(a) DZ obo WZ.
(b) Perlman.
(c) De Klerk.
(d) All of the above.
(e) None of the above

2.2. Which of the following statements most accurately captures what John Gardner
has in mind when he speaks about “corrective justice”?
(a) The just distribution of resources in society.
(b) The just distribution of legal duties in society.
(c) Addressing the systemic injustice of apartheid.
(d) Paying a victim a sum of money for an injury that has been sustained.
(e) All of the above.

2.3. Which of the following most accurately portrays Zitzke’s definition of “the law of
injuries” in South Africa?
(a) “In general terms injury law can be defined as a civil wrong. Such a definition
encompasses all instances, excluding contractual obligations, which give rise to
compensation for harm wrongfully caused, irrespective of whether liability is strict or
based upon fault. A narrower definition considers a delict to be wrongful and
blameworthy conduct which causes harm to a person. This view equates delictual
liability with fault liability.”
(b) “That part of the law that legally obliges us not to commit conduct that is wrongful
and culpable in causing harm to others.”
(c) “That part of the law that essentially aims to ensure corrective justice by stipulating
the conditions for and consequences of reparatory liability for certain interpersonal
rights infringements that do not necessarily arise from contractual arrangements or
crimes.”
(d) “First there must be a violation through human conduct of one of the enumerated
rights (Rechte) or interests (Rechtsgüter), namely, life, body, health, freedom, property,
or any ‘other right’ (sonstiges Recht). Secondly, this interference must be unlawful
(Rechtswidrigkeit). Thirdly, it must be culpable (intentional or negligent). Finally, there
must be a causal link between the defendant’s conduct (which can be an act or an
omission) and the plaintiff’s harm as defined by this paragraph.”
(e) None of the above.

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