Deliktereg 1985 - 'n besinning oor teorie, praktyk en onderrig

Abstract

This inaugural lecture on the law of delict draws attention to a branch of South African private law which has been profoundly influenced by academic writings. In a preliminary historical survey it is pointed out that the foundations of our law of delict are firmly embedded in Roman law and its further development on the Continent, namely the ius commune. Attention is, however, drawn to the fact that concepts gleaned from the English law of torts have over a prolonged period infiltrated the realm of our common law rules of delict, ultimately resulting in a truly South African law of delict. In this context it is pointed out that any attempt to purge this field of our law of its English elements would be futile. The modern tendency to simplify the basis of all claims pertaining to patrimonial damages by declaring it to be Aquilian in nature is subjected to criticism; it is submitted that the modern researcher is confronted mainly by four problems in his quest for the true basis of delictual liability in cases involving patrimonial loss, namely: that principles of the law of delict are scattered throughout the pages of the Corpus luris Civilis, that principles of delict and crime are intermingled throughout our common law literautre, that little is known about the true contents of the old authorities which form the basis of research and, finally, that none of the old authorities extensively treats what may be termed "general principles" of delict. The study of delict by means of the so-called "elementological process" is scrutinized,. In the first place different academic approaches to the elements of delict are afforded, followed by an exposition of instances in which our courts have followed this modern aproach. In conclusion some remarks are made in regard to tuition of this extremely challenging subject. It is pointed out that historical and comparative research in this field are of utmost importance, and that in this respect our law faculties must be regarded as the last bastion of basic legal research in South Africa