A new proposed constitutional methodology for effecting transformation in the South African law of delict

Abstract

The problem identified in this thesis is the haphazard methodology that features in constitutional application to the South African common law of delict. Conventionally, the Constitution is said to apply either 'directly', 'indirectly' or 'not at all' to common-law problems. How judges are supposed to choose between those three possibilities is unclear. In light of a number of recent delict cases, the author observes that the uncertainty, coupled with a conservative political commitment to 'contemporary common-law purism', has resulted in judges preferring the option of 'constitutional avoidance' instead of the direct- and indirect-application models. On the other hand, the author also notes with concern the radically alternative approach of 'constitutional over-excitement' where judges overlook established common-law rules and instead turn to a pure application of constitutional principles. The author argues that these competing approaches tend to valorise one source of law at the expense of an integrated reading of various sources. This invariably leads to an uncritical acceptance of either the common law or the Constitution. The author contends that the competing problems of constitutional avoidance and over-excitement in the law of delict could be addressed by turning to the transformative method of adjudicative subsidiarity that places the Constitution's commitment to human rights at the centre of common-law disputes (thus rejecting a blind veneration of the common law) while being humbly mindful of the limits of constitutionalism. The author finally evaluates judicial performance in a broader spectrum of delict cases since democratisation that further demonstrates the need for the application of adjudicative subsidiarity.