LAW OF DELICT

SUBJECT: LADE7111 LECTURER: MR G.A RAMSDEN [LU 1 CONTD X2]

PRESCRIBED READING
• Textbook: Chapter 3
• Case Law: See MO
DELICT IN A MULTI-CULTURAL SOCIETY
Aim of LU: to examine how, if at all, principles and values of African,
Muslim and Hindu cultures have come to influence and enrich SA
common law principles of delict.
The Constitutional window
 The Constitution affords an opportunity to mould an inclusive, plural
South African legal culture, which embraces and respects the dignity
of all its citizens.
 The country’s legal culture must reflect some of the values of its
diverse cultures.
 Thus far, references to indigenous customs and cultural values when
applying delictual values have been scant.
DELICT IN A MULTI-CULTURAL SOCIETY
 The Constitution obliges courts to apply customary law, provided
that it is consistent with the Bill of Rights (s211(3)).
 Although distinct systems, Islamic law and customs and Hindu law
and customs are not similarly recognised. Their role, as with
African customs, is to inform and enrich the normative base when
judges make discretionary value judgements when applying and
developing the common law of delict e.g. in relation to
wrongfulness, fault or legal causation.
DELICT IN A MULTI-CULTURAL SOCIETY
 Customary law and other cultural values must now be considered
when our courts develop the law.
The influence of African culture and values
• There is in essence no distinction between delict and crime in African
customary law.
• An essential feature of delictual obligations is that they exist in a
group context and are manifested in group rights and group
obligations (e.g kraal head’s liability – quasi-vicarious liability).
DELICT IN A MULTI-CULTURAL SOCIETY
• Customary delicts cover:
 Sexual wrongs (seduction, impregnation of unmarried women, adultery, intercourse with a
ukungena partner, a widow or a former customary law wife);
 abduction o brides-to-be;
 Damage to movable or immovable property;
 Assault;
 Theft;
 Defamation.

• Some of these delicts may in time need to be reconsidered for compatibility with
constitutional principles and values.
DELICT IN A MULTI-CULTURAL SOCIETY
• Similarities (to some degree) with common law delict:
o Vicarious liability (kraal head);
o Young persons being doli incapax;
o Liability for damage caused by animals.
• When our courts apply or develop delictual principles, the infusion of
African customary law is still in its infancy. The value of ubuntu-
botho / ubuntu (humaneness) has however already been used to good
effect (discussed later).
DELICT IN A MULTI-CULTURAL SOCIETY
Influence of Muslim and Hindu culture and values
• Islamic law comprises the ethos of religion, the precepts of ethics, the tenets of law
and the bases of other disciplines moulded into a system that governs all aspects of
life.
• Similarly, Hindu law is a culture-specific system of law that interlinks religion, social
and moral rules, ethics, justice and principles of law.
• Thus far, their only effect in our law of delict has been in respect for claims for loss
of support.
DELICT IN A MULTI-CULTURAL SOCIETY
Specific instances:
 Dependants ‘ action
• This is the only sphere in which African, Muslim and Hindu cultures have been
integrated into mainstream cultural principles.
• Amod v Multilateral Motor vehicle Accident Fund (Commission for Gender
Equality Intervening): held that the boni mores would in light of constitutional
rights and values recognise a dependant claim arising from a de facto monogamous
Islamic marriage, notwithstanding that such marriages were not recognised at the
time by SA law. (Question left open regarding dependants’ actions in respect of
polygamous Islamic marriages).
DELICT IN A MULTI-CULTURAL SOCIETY
• African culture, for example, has influenced the law of delict in respect of a parent
claiming for loss of support from a deceased child (In African customary law, the
duty of a child to support a parent is well known and can be legally enforced against
the child). Hence the common law extended to allow a dependant claim against the
RAF in these circumstances – Fosi v RAF.
• Same principle applies in Muslim and Hindu families and hence also their
dependants’ actions – Osman v Road Accident Fund
• In JT v RAF customary values played a central role in the court’s conclusion that the
common law ought to be developed to embrace a duty of support amongst de facto
family members.
DELICT IN A MULTI-CULTURAL SOCIETY
 Defamation

In Mogale v Seima, the SCA noted that indigenous law does in general not allow
damages claims for defamation, unless allegations of witchcraft are involved. That
seems to have lead to a reduction of the amount of damages for a defamatory claim in
this matter.
 Remedies

See Seima case above.

In Dikoko v Mokhatla the minority views of Mokgoro and Sacks J in the Constitutional
Court relied on the restorative nature inherent in ubuntu-botho to advocate for
retraction and apology to be recognised as an appropriate remedy for defamation. This
view stimulated similar sentiments in Le Roux v Dey (Freedom of Expression
Institute and Restorative Justice Centre as Amici Curiae).
DELICT IN A MULTI-CULTURAL SOCIETY
Conclusion
• This entails legal pluralism.
• Discussion has shown how common law has started to evolve by incorporating
principles and values from African, Muslim and Hindu customary law.
• Process has however been piecemeal, despite the Constitution’s goal to infuse
African values into our legal system. Despite same, our law of delict remain steeped
in Roman-Dutch law.