Further Reflections on Wrongfulness in the Law of Delict

by | Sep 1, 2019 | SALJ V135 I1 2018

Further Reflections on Wrongfulness in the Law of Delict

Authors Anton Fagan

ISSN: 1996-2177
Affiliations: W P Schreiner Professor of Law, University of Cape Town
Source: South African Law Journal, Volume 135 Number 1, May 2018, p. 18 – 54

Abstract

This article revisits the author’s article ‘Rethinking wrongfulness in the law of delict’, which was published in this journal in 2005. The author argues that the analysis in the original articles was misleading in two respects. On the one hand, it under-played the extent to which the determination of whether negligent harm-causing conduct was wrongful is regulated by law. On the other hand, it over-emphasised the degree to which that determination depends on the reasonableness of imposing liability. This article aims to correct these flaws. The article discusses the many legal rules which have to be applied in order to determine whether negligent harm-causing conduct was wrongful, before going on to discuss the deeper-lying considerations by which the wrongfulness of negligent harm-causing conduct is to be determined whenever it cannot be determined by application of the law alone, but must be determined also by the exercise of judicial discretion.

Whose Decisis Must We Stare?

by | Aug 26, 2019 | SALJ V135 I1 2018

Whose Decisis Must We Stare?

Authors Malcolm Wallis

ISSN: 1996-2177
Affiliations: Judge of the Supreme Court of Appeal
Source: South African Law Journal, Volume 135 Number 1, May 2018, p. 5 – 17

Abstract

The article explores the consequences for the application of the doctrine of precedent of the Constitution Seventeenth Amendment Act of 2012 and the Superior Courts Act 10 of 2013. It suggests that the effect of creating a single high court must be to require a reconsideration of the rules hitherto applied in relation to stare decisis, and formulates an alternative approach that is both consistent with the constitutional structure of the courts and provides the necessary flexibility to enable courts to engage in debates concerning the interpretation of novel legislation and the development of the common law.