Abstract:
This purpose of this dissertation is to determine the ambit of the current requirements
for the proof of factual causation in the South African law of delict, and to consider
the implications thereof with reference to medical negligence. Proceeding from the
premise that South African courts have employed the conditio sine qua non as the
sole test for factual causation for at least the past forty years, this study commences
with a review of selected older South African case law which evidences judicial
recognition of alternative, less stringent tests for factual causation. It is concluded that
South African courts have in the past employed versions of the material contribution
test as well as hybrid tests in assessing factual causation to the benefit of plaintiffs
who had proven negligence and injury, but were confronted with difficulty or
impossibility in the proof of causation. The South African case law selection is
concluded with the Constitutional Court s judgment in Lee v Minister of Correctional
Services 2013 (2) SA 144 which, it will be argued, represents a significant departure
from the prior common law position regarding factual causation. In an attempt to gain
some perspective on what the said departure from the traditional test for factual
causation might entail and what repercussions it may have, a study is made of selected
case law from the United Kingdom pertaining to the application of modified tests for
factual causation. It is concluded that the Constitutional Court in fact employed a
material contribution to risk test for factual causation in Lee v Minister of
Correctional Services 2013 (2) SA 144 and the reception of this judgment is
considered in the light of academic commentary and perspectives gleaned from the
United Kingdom. The discussion culminates in an opinion that the current common
law position regarding the test for factual causation has not been defined clearly by
the courts although it has certainly been relaxed into a less stringent formulation. The
prevailing position is considered with reference to the Constitution and the possible
reliance by organs of state on section 36 thereof is contemplated as a possible
mechanism to resist positive findings of causation. Finally it is submitted that the
contemporary formulation of the test for factual causation represents perhaps the most
plaintiff-friendly delictual disposition in South African legal history, with the result
that medical negligence is likely to be proved with greater ease in future.
