Law of Delict 7th edition test bank

Part I Introduction to the law of delict This chapter serves as a general introduction to the law of delict. Topics dealt with are the nature of a delict and its place in the legal system; the distinction between this phenomenon and breach of contract and crime; the historical development of delictual liability; and the influence of the constitutional Bill of Rights on the law of delict. Chapter 1 General introduction 1 Delict: general nature and place in the legal system The purpose of the law, and in particular private law, is to regulate relations between individuals in a community.1 A legal order would be unnecessary if people lived in complete harmony. The reality is, however, that individual interests are continually in a state of real or threatened con- flict. Accordingly, it is the function of private law to recognise these interests, delimit them in relation to each other and harmonise those that are in conflict. In particular, it is the role of the law of delict to indicate which interests are recognised by the law, under which circumstances they are protected against infringement (that is, when the impairment of a legally recognised interest constitutes a delict) and how such a disturbance in the harmonious balance of interests may be restored.2 The fundamental premise in law is that damage (harm) rests where it falls, that is, each person must bear the damage he suffers (res perit domino).3 If someone drives his car carelessly and collides with a tree, or clumsily drops and breaks his watch, or hail damages his corn crop, or lightning kills his horse, he has, in principle, no legal ground for complaint. However, damage does not always rest where it falls. There are indeed certain legally recognised instances in which the burden of damage is shifted from one individual to another, with the result that the latter incurs an obligation to bear the former’s damage or to provide compensation for it.4 For example, where damage arises from a delict,5 the wrongdoer is legally obliged to compensate the aggrieved party. In general terms, the law of delict thus determines the circumstances in which a person is obliged to bear the damage he has caused another, ie when he may incur civil liability for such damage.6 Because the wrongdoer has an obligation to make compensation for the damage suffered, the person prejudiced has a corresponding right to claim compensation. As a result, an obligatio or obligation between the two parties is created. Thus the law of delict belongs to that part of private law known as the law of obligations.7 1 By contrast, it is the task of public law to regulate the relations between the state and the individual, and between the organs of the state (Van der Merwe and Olivier 1–2). 2 Cf idem 1; Loubser and Midgley (eds) Delict 4–6. 3 In Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA 2006 1 SA 461 (SCA) 468, Harms JA stated: “The first principle of the law of delict, which is so easily forgotten and hardly appears in any local text on the subject, is . . . that everyone has to bear the loss he or she suffers. The Afrikaans aphorism is that ‘skade rus waar dit val’.” See further Imvula Quality Protection (Pty) Ltd v Loureiro 2013 3 SA 407 (SCA) 418; Road Accident Fund v Krawa 2012 2 SA 346 (ECG) 358–359: Scott 2009 THRHR 167; Neethling and Pot- gieter 2006 TSAR 610; Van der Walt and Midgley Delict 31; Van der Merwe and Olivier 214. 4 Cf eg contracts of insurance and relief schemes by the state. 5 See further Telematrix Pty Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA 2006 1 SA 461 (SCA) 468. A delict is thus a legal fact, ie a fact of which the law takes notice. It is, however, not a legal act, be- cause the law attaches consequences to it independent of the will or aim of the wrongdoer (Van der Merwe and Olivier 4). 6 In the law of delict, the primary question is therefore who must bear the loss: the wrongdoer or the aggrieved party. Thus this section of the law has, in the words of Van der Walt and Midgley Delict 31, “a strong, individualistic character” (our emphasis). 7 Van der Walt and Midgley Delict 1; Van der Merwe and Olivier 3–4. See in general Zimmermann Obligations passim. 3 The mere fact that a person has caused another to suffer damage is, of course, insufficient to constitute a delict for which he may be held liable. To found liability, further requirements must be met. These requirements, otherwise referred to as the different elements which constitute a delict, appear from the following definition: A delict is the act of a person that in a wrongful and culpable way causes harm to another.8 All five requirements or elements, ie an act, wrongful- ness, fault, causation9and harm must be present before the conduct complained of may be classified as a delict.10 If any one (or more) of these elements is missing,11 there is no question of a delict and consequently, no liability.12 From the above, it follows that the question of delictual liability is governed by a generalising approach. This means that general principles or requirements regulate delictual liability. These principles as a rule apply irrespective of which individual interest (for example, a thing, the human body, honour, privacy, earning capacity, a trade secret, a trademark or the goodwill of a corporation) is impaired, and irrespective of the way in which the impairment is caused.13 The casuistic approach of the English and Roman law of delict contrasts with the generalising ap- proach. According to the casuistic approach, the law of delict consists of a group or set of separate delicts (torts or delicta), each more or less with its own rules. The aggrieved party may thus only render the wrongdoer liable if his conduct satisfies all the requirements of a specific delict.14 8 Cf Van der Walt and Midgley Delict 2; Van der Merwe and Olivier 1; Burchell Delict 10; Loubser and Midgley (eds) Delict 7–8. Boberg Delict 1 defines a delict as the “infringement of another’s interests”. This description is, however, both incomplete and misleading. On the one hand, there is an omission to state fault as a general delictual requirement, and on the other hand, the erroneous impression is created that all individual interests, and not only those that are legally recognised and protected, are relevant in this regard. 9 As will be seen (infra 183 ff), causation consists in reality of two independent delictual elements, ie factual causation and legal causation. Thus a delict actually consists of six elements. 10 See eg Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA 2006 1 SA 461 (SCA) 468; Van Eeden v Minister of Safety and Security (Women’s Legal Centre Trust, as amicus curiae) 2003 1 SA 389 (SCA) 395; Truter v Deysel 2006 4 SA 168 (SCA) 174; Mntambo v Road Accident Fund 2008 1 SA 313 (W) 318; cf First National Bank of South Africa Ltd v Duvenhage 2006 5 SA 319 (SCA) 320–321; Black v Joffe 2007 3 SA 171 (C) 183; see further Knobel 2008 THRHR 651. 11 See eg First National Bank of South Africa Ltd v Duvenhage 2006 5 SA 319 (SCA) 320 326 for an instance where a claim failed because causation was absent. 12 See Road Accident Fund v Krawa 2012 2 SA 346 (ECG) 358–359. Exceptions, however, exist because relations in life simply refuse to be regulated by inflexible rules. One of the most important developments which has taken place in the field of delictual liability during the past eight to ten decades is the formation and recognition of in- stances of liability without fault (strict liability) as distinct from traditional liability where fault is an essential requirement. An example in our law is the imposition of strict liability for wrongful deprivation of liberty (Minister of Justice v Hofmeyr 1993 3 SA 131 (A); cf Van der Walt and Midgley Delict 2 fn 11; cf however Van der Merwe and Olivier 16). Specific instances of liability without fault will be discussed infra 379 ff. 13 The generalising approach of South African law is apparent from the following dictum in Perlman v Zoutendyk 1934 CPD 151 155: “Roman-Dutch law approaches a new problem in the continental rather than the English way, because in general all damage caused unjustifiably (injuria) is actionable, whether caused intentionally (dolo) or by negligence (culpa)” (see also Loubser and Midgley (eds) Delict 15–16). From this it is also clear that our law does not stand alone with its general principles of delictual liability. Various modern continental codes follow the same pattern (see in this regard Van der Merwe and Olivier 16–18). Note, however, that with regard to the protection of certain individual interests (such as the interests of inventors or authors), the generalising approach or the general principles of delict have been replaced by statutory measures (the Patents Act 57 of 1978 and the Copyright Act 98 of 1978 respectively). 14 Van der Merwe and Olivier 18–20; Van der Walt and Midgley Delict 18. Notwithstanding its casuistic approach, the English “law of torts” exercised a very strong influence on our law of delict until fairly recently (Van der Merwe and Olivier 20–21). This occurred to such an extent that in certain areas of delictual liability (such as unlawful competition: Neethling Van Heerden-Neethling Unlawful Competition ) English law was adopted almost completely by the courts. This adoption (and, at times, even slavish following of the “law of torts”) is unacceptable if it is not reconcilable with our own delictual principles (cf Meter Systems Holdings Ltd v Venter 1993 1 SA 409 (W) 427–428; Weber-Stephen Products Co v Alrite Engineering (Pty) Ltd 1990 2 SA 718 (T) 634– 735). The fertile influence of a related legal system should nevertheless not be excluded (Van der Merwe and Oliv- ier 21; Trust Bank van Afrika Bpk v Eksteen 1964 3 SA 402 (A) 410 ff). Supplementary to the generalising ap- proach, it is, after all, a secondary characteristic of our law of delict that specific forms of delict with their own [continued ] It is self-evident that a legal system embracing general principles of delictual liability is able to accommodate changing circumstances and new situations more easily than one that adopts a casuistic approach, since the latter approach requires the constant creation of new delicts (usual- ly a slow legislative process), while general principles, because of their flexibility and pliancy, need only be adapted or applied in a new way (normally a speedy judicial process).15 The South African law of delict, unlike the English law of torts, has therefore been able to recognise and protect individual interests (such as privacy16 and the goodwill of a corporation17) which have only come to the fore in modern times. The generalising approach is, however, subject to an important qualification in our law. A distinction is made in principle between delicts that cause patrimonial damage (damnum iniuria datum) and those that cause injury to personality (iniuria). These distinctions ground the actions which form two of the pillars of the law of delict, ie the actio legis Aquiliae, in terms of which damages for the wrongful and culpable (intentional or negligent) causing of patrimonial damage are claimed, and the actio iniuriarum, which is directed at satisfaction (solatium or sentimental damages) for the wrongful and intentional injury to personality.18 These two actions, apart from a few exceptions, comprehensively cover the whole area of delictual liability.19 The most important remaining action – which may be regarded as the third pillar of the law of delict – is the action for pain and suffering, by which compensation for injury to personality as a result of the wrongful and negligent (or intentional) impairment of bodily or physical-mental integrity is claimed.20 Although in terms of the generalising approach, the wrongful culpable causing of patrimonial loss forms the basis for the Aquilian action, and the wrongful intentional injury to personality constitutes an iniuria, it is nevertheless inevitable that forms of damnum iniuria datum and iniuria which occur frequently in practice become known as separate delicts under specific names. Thus, inter alia, patrimonial loss caused by another person’s death (the dependants’ action) or injury, negligent misrepresentation and emotional shock have emerged in practice as forms of damnum iniuria datum, whereas assault, defamation, insult, invasion of privacy, specific rules have evolved in order to promote the practical utility of general principles in given fields of delictual liability (such as unlawful competition or defamation: see infra 327 352), and to promote legal certainty (see Neethling in Smits (ed) 81 ff 102; see infra 5, ch 9 10; cf Neethling 1999 THRHR 146 on Longueira v Securitas of South Africa (Pty) Ltd 1998 4 SA 258 (W) 262–263). Here, the casuistry and detail of the “law of torts” have ful- filled an important and beneficial role. This blend of the “general” and the “specific” constitutes the hybrid charac- ter of our law of delict, in which Roman-Dutch law and English “common law” have been merged into a harmonious unity (see further Smits Europees Privaatrecht in Wording 241–242; Loubser and Midgley (eds) Delict 17). In future, the courts should, therefore, follow the English “law of torts” with circumspection, and only insofar as those legal rules are reconcilable with our own law. The recent tendency of the courts to give preference to our own delictual principles and thus to avoid the injudicious adoption of English law, is thus to be welcomed (see also Van der Merwe and Olivier 21–23; cf Boberg Delict 26–27). 15 Cf Van der Walt and Midgley Delict 31 fn 12. 16 National Media Ltd v Jooste 1996 3 SA 262 (A) 271–272; Jansen van Vuuren v Kruger 1993 4 SA 842 (A) 849; Financial Mail (Pty) Ltd v Sage Holdings Ltd 1993 2 SA 451 (A) 462–463; Neethling, Potgieter and Visser Neeth- ling’s Law of Personality 4 29 ff 217 ff. This will be discussed in detail infra 370. 17 Atlas Organic Fertilizers (Pty) Ltd v Pikkewyn Ghwano (Pty) Ltd 1981 2 SA 173 (T) 182; Neethling Van Heerden- Neethling Unlawful Competition 105–107. This will be discussed in detail infra 327. 18 Van der Walt and Midgley Delict 1; Van der Merwe and Olivier 15; Boberg Delict 18; Marais v Groenewald 2001 1 SA 634 (T) 645; University of Pretoria v South Africans for the Abolition of Vivisection 2007 3 SA 395 (O) 400. 19 Van der Walt and Midgley Delict 1. In Edouard v Administrator, Natal 1989 2 SA 368 (D) 389 Thirion J stated: “In present-day Roman-Dutch law the actio injuriarum and the actio legis Aquiliae, in its extended form, cover almost the whole field of delictual liability.” Cf also Dhlomo v Natal Newspapers (Pty) Ltd 1988 4 SA 63 (D) 65. 20 Van der Walt and Midgley Delict 1 fn 9; Van der Merwe and Olivier 15; Boberg Delict 18; cf however Burchell Delict 19 who appears not to appreciate the independent existence of the action for pain and suffering. Other delict- ual actions, especially those that are based on strict liability (such as the actio de pauperie and the actio de pastu in respect of harm caused by animals), today play a relatively minor role (cf in this regard infra 381 ff; Van der Walt and Midgley Delict 35 40–43). wrongful deprivation of liberty etc have crystallised into specific forms of iniuria. In this pro- cess, it has happened that such forms develop their own specific rules within the framework of the general principles of delict. It is therefore useful (and even necessary) to treat the different forms separately. Nevertheless, it must be borne in mind that each is merely a specific form of the broad concept of delict. There is definitely not a series of separate delicts, each with its own principles. At most, the specific forms of delict may be seen as being species of the genus ‘delict’. Furthermore, it is important to note that a delict is not the only form of unwarranted or inadmis- sible conduct of which the law takes cognisance. For the sake of conceptual clarity, it is neces- sary to distinguish between a delict and two similar legal phenomena, ie breach of contract and crime.21 2 Delict and breach of contract Breach of contract clearly constitutes a different form of wrongful conduct in private law. As with a delict,22 breach of contract is normally an act by one person (contracting party) which in a wrongful and culpable way causes damage to another (contracting party).23 Thus there is appar- ently no material difference between these two legal phenomena.24 Nevertheless, breach of contract and a delict are fundamentally different.25 Breach of contract is only constituted by the non-fulfilment by a contractual party of a contractual personal right (claim) or an obligation to perform. Accordingly, the primary remedy for breach of contract is directed at enforcement, fulfilment26 or execution of the contract; a claim for damages as a remedy only plays a secondary part. By contrast, a delict is constituted by the infringement of any legally recognised interest of another party, excluding the non-fulfilment of a duty to per- form by a contractual party. Consequently, the delictual remedies are primarily directed at damages (or satisfaction), and not at fulfilment. The fundamental differences between breach of contract and a delict are, for historical, systematic and practical reasons, also supported by the fact that breach of contract is not formally treated as part of the law of delict but is considered to be part of the law of contract. The law of contract, as indicated, therefore provides specific rules 21 As to the interplay between the law of delict and social security law, see Millard 2010 TSAR 532 ff. 22 See supra 4. 23 Cf Van der Walt and Midgley Delict 4; Stoop 1998 THRHR 10. However, in Administrator, Natal v Edouard 1990 3 SA 581 (A) 597, the Appellate Division stated clearly that “fault is not a requirement for a claim for damages based upon a breach of contract”. Cf also Van der Walt and Midgley Delict 5 fn 6. In contradistinction, Hutchison and Pretorius (eds) Contract 276 ff 278 (see also Stoop 1998 THRHR 10 fn 64) maintain that the statement in Edouard is “a sweeping generalisation” and that fault is indeed a requirement for most forms of breach of contract apart from repudiation and in certain instances of positive malperformance. In these cases liability therefore seems to be strict (see infra 379). It has been suggested that the reasonable person test for negligence should apply in all cases of a breach of contract (Van Aswegen Sameloop van Eise 194; see however Stoop 1998 THRHR 11). 24 Cf Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd 1985 1 SA 475 (A) 495–496 and the authority cited there. For McKerron Delict 2, the distinction between a delict and breach of contract lies in the fact that a delict consists in the “breach of a duty imposed by law” whereas breach of contract comprises the “breach of a duty voluntarily assumed”. See also Freddy Hirsch Group (Pty) Ltd v Chickenland (Pty) Ltd 2011 4 SA 276 (SCA) 292. Although this distinction has merits, there are also objections. One is that it describes a delict solely in terms of a breach of a duty, without including the infringement of a right or legally protected interest (see Burchell Delict 3). Another is that although a contractual duty may flow from the will of the parties (such as the duty to pay compensation for breach of contract), that duty is, in reality, imposed by law as a consequence of the unlawful breach of the contract (Hutchison and Pretorius (eds) Contract 8–9). 25 See Van Aswegen’s persuasive arguments in this regard (Sameloop van Eise 300 ff). 26 Note too that while, in delict, patrimonial as well as non-patrimonial damages may be claimed, the latter may not be recovered in contract (Administrator, Natal v Edouard 1990 3 SA 581 (A) 595–596; Van der Walt and Midgley Delict 5). and remedies for breach of contract that are not applicable to a delict.27 This distinction is clearly apparent from the fact that one and the same act may render the wrongdoer liable ex contractu as well as ex delicto.28 Thus, despite the apparent similarity between a delict and breach of contract, these concepts may not be treated identically. At most, it can be said that both are species of the genus ‘wrongful conduct’ in private law. 3 Delict and crime The law also takes cognisance of wrongful and culpable acts in the sphere of public law, more particularly in criminal law. Despite the apparent similarity between delicts and crimes,29 there are fundamental differences between them. The principal difference relates to the distinction between private and public law. Private law is directed at the protection of individual (private) interests, while public law is directed at uphold- ing the public interest. Accordingly, delictual remedies differ substantially from criminal sanc- tions. Delictual remedies are compensatory in character, compensating or indemnifying the aggrieved party for the harm the wrongdoer has caused. By contrast, criminal sanctions are of a penal nature, and are intended to punish the criminal for his transgression against the public interest.30 The distinction between a delict and a crime is also apparent from the fact that one and the same act may found delictual, as well as criminal, liability.31 This does not mean that the two 27 Van der Walt and Midgley Delict 6; cf any textbook on the law of contract in connection with the remedies for breach of contract. 28 See infra 271 ff on the concurrence of delictual actions and the contractual action. 29 Cf the definition of a delict supra 4. 30 Van der Merwe and Olivier 1–2; Van der Walt and Midgley Delict 3; cf Burchell Delict 2. See further eg Esselen v Argus Printing and Publishing Co Ltd 1992 3 SA 764 (T) 771; Argus Printing and Publishing Co Ltd v Esselen’s Estate 1994 2 SA 1 (A) 29–30; Innes v Visser 1936 WLD 44 45; Lynch v Agnew 1929 TPD 974, 978; Collins v Administrator, Cape 1995 4 SA 73 (C) 94; Dikoko v Mokhatla 2006 6 SA 235 (CC) 263; Mogale v Seima 2008 5 SA 637 (SCA) 641–642; Tsedu v Lekota 2009 4 SA 372 (SCA) 379; Seymour v Minister of Safety and Security 2006 5 SA 495 (W) 500; Fose v Minister of Safety and Security 1997 3 SA 786 (CC) 823–828 (cf Loubser and Midgley (eds) Delict 402–404). Note, however, that according to common law and some (particularly earlier) case law (see eg Masawi v Chabata 1991 4 SA 764 (ZH) 772; Steele v Minister of Safety and Security case no 10767/2005 (C) par [125]–[129] [135]; Salzmann v Holmes 1914 AD 471, 480, 483; Gray v Poutsma 1914 TPD 203, 211; Bruwer v Joubert 1966 3 SA 334 (A) 338; Potgieter v Potgieter 1959 1 SA 194 (W) 195; Mhlongo v Bai- ley 1958 1 SA 370 (W) 373; Buthelezi v Poorter 1975 4 SA 608 (W) 615–; Pauw v African Guarantee and Indemnity Co Ltd 1950 2 SA 132 (SWA) 135; SA Associated Newspapers Ltd v Yutar 1969 2 SA 442 (A) 458; Gelb v Hawkins 1960 3 SA 687 (A) 693; Brenner v Botha 1956 3 SA 257 (T) 262; Kahn v Kahn 1971 2 SA 499 (RA) 500 501–502; Chetcuti v Van der Wilt 1993 4 SA 397 (Tk) 399–401; Africa v Metzler 1997 4 SA 531 (NmHC) 538–539) the actio iniuriarum (supra 5) may in certain cases be used to claim punitive damages from the wrong- doer. According to some authors these common law remnants should be abolished since they disregard the distinc- tion between the law of delict and criminal law, as well as the compensatory nature of delictual remedies (Van der Merwe and Olivier 2–3 fn 10; Van der Walt and Midgley Delict 3–4; see further the case law cited above). The fol- lowing comments will suffice for the present. Although the actio iniuriarum had a penal character in common law, it developed a dual function in case law, ie recovery of damages or satisfaction (solatium, solace), firstly as com- pensation for injured feelings resulting from intentional infringements of personality rights, and secondly as pun- ishment (punitive or exemplary damages) to mitigate and neutralise the plaintiff’s feelings of injustice and revenge flowing from the wrong done to him. Nevertheless, because it is extremely difficult in practice to differentiate between the compensatory and punitive elements of damages, and in view of valid criticism of an award of puni- tive damages in a civil action, it is submitted that aggravated compensatory damages should fulfil the function of punitive damages, so that the latter is not regarded as punishment but as compensation, also for irate feelings, and that in this way provision is made for a covert penal element that continues to do justice to the true concept of satis- faction (for in-depth discussion, see Neethling in Boezaart and De Kock (eds) 173 ff, 2008 Obiter 238 ff; see also Potgieter, Steynberg and Floyd Damages 195–198). 31 Such as theft, fraud and assault, ie where the crime causes patrimonial damage or injury to personality. The thief, eg, is not only guilty of a crime, but he is also obliged to compensate the owner of the stolen property for the dam- age he has caused (see further Van der Walt and Midgley Delict 3; Van der Merwe and Olivier 2). legal phenomena always overlap. On the contrary, their difference is emphasised by the fact that a delict is not necessarily a crime32 and vice versa.33 4 Historical development of delictual liability 4.1 Introduction In contrast to the casuistic approach of the Roman law of delict, the South African law of delict is based, as stated, on three pillars: the actio legis Aquiliae, the actio iniuriarum and the action for pain and suffering.34 Unlike the last-mentioned action, which developed in Roman-Dutch law, the first two remedies had already played an important role in Roman law. The fields of application of all three actions have, over the course of time, extended far beyond their Roman- Dutch law limits. In order to ascertain in detail the significance of these actions in the law of delict, it is necessary to consider their state of development in our law. In this way it can be determined whether these actions have reached their so-called logical end development, that is, whether all patrimonial loss caused wrongfully and culpably is actionable with the Aquilian action, whether every wrongful and intentional injury to personality (iniuria) grounds the actio iniuriarum, and whether each form of harm that is related to physical-mental integrity and results from a culpable act may be compensated in terms of the action for pain and suffering. 4.2 Actio legis Aquiliae35 Roman law One of the most important sections of Roman law that still exists in our law, although time has wrought many changes and extensions to it, relates to liability for patrimonial damage (damnum iniuria datum). Roman law in this regard was based on an Act (plebiscitum) from 287 BC, and known as the lex Aquilia.36 This Act was divided into three chapters, of which only the first and the third are still of importance.37 It is noticeable that, according to these two chapters, the lex Aquilia was originally only applicable to certain forms of damage to things (corporeal assets). It dealt only with the killing or wounding of a slave or four-footed animal, and the burning, breaking and destroying of other things. The Aquilian action was furthermore only available to the owner of the damaged property.38 Over the course of time, the field of application of the Aquilian action has been extended con- siderably, as a result of extensive interpretation of the lex and the granting of actiones utiles and in factum. Consequently, Aquilian liability could ensue after any kind of physical infringement of a thing, and not only, as was originally the case, after infringements of a specific, defined nature.39 A further important development was that the wrongdoer had to compensate not only for the damage that had been caused to the thing itself, but also for all patrimonial damage that resulted from his wrongful act (id quod interest).40 In Justinian’s time, the extension was such that, apart from the owner, other holders of real rights41 – and in at least one instance the holder 32 Such as adultery, breach of promise and negligent damage to property (Van der Walt and Midgley Delict 3; Van der Merwe and Olivier 2). 33 Such as blasphemy, high treason and parking offences (Van der Merwe and Olivier 2; Van der Walt and Midgley Delict 3). 34 Supra 5; cf Loubser and Midgley (eds) Delict 15. 35 See in general Neethling Van Heerden-Neethling Unlawful Competition 74 ff; Van der Merwe and Olivier 5 ff. 36 See in general Van der Merwe and Olivier 6 ff; Van der Walt and Midgley Delict 8–10. 37 The second chapter had already fallen into disuse in Roman law. 38 See in general Van der Walt and Midgley Delict 8 10; Van den Heever Aquilian Damages 8–14; Van der Merwe and Olivier 6–7 8. 39 Van den Heever Aquilian Damages 28; Van der Walt and Midgley Delict 8. 40 Van den Heever Aquilian Damages 27–28; Van der Walt and Midgley Delict 8. 41 Such as the bona fide possessor, the pledgee, the holder of a servitude, the usufructuary and the heir (Van der Merwe and Olivier 8; Van der Walt and Midgley Delict 10). of a personal right in respect of the thing (the colonus partiarius)42 – were also protected against damage to property. In addition to damage to property, the actio legis Aquiliae was made applicable to two further instances of patrimonial loss resulting from bodily injuries: a father could claim for patrimonial loss suffered as a result of the injury of his child, while a free man (liber homo) could claim for patrimonial loss resulting from his own personal injuries.43 It is, however, not exactly clear what dimensions the extension of Aquilian liability had reached in Justinian’s time. Nevertheless, the general opinion seems to be that, although interests other than ownership were also protected, a perceptible, physical infringement of a concrete object, ie, a thing or the body of a person, was still required.44 The reasons for this are probably twofold. Firstly, the lex Aquilia was, as already mentioned, initially only applicable to certain physical infringements of corporeal legal interests. It is therefore understandable that the extension by analogy of Aquilian liability was still connected to physical infringements. Secondly, the wrong- fulness of a physical infringement was readily apparent to the less sophisticated legal mind. The infringement constituted, as it were, a conspicuous peg on which an evaluation of wrongfulness could be hung. However, when a person suffered harm that was not caused by a physical in- fringement, the Roman jurist had no criterion by which to evaluate the act.45 Notwithstanding this restriction, it is clear that the progression, from liability based on damage to property, to a more general liability for patrimonial loss, began to develop in Roman law. This was apparent from the fact that the aggrieved party could claim his id quod interest, and, in certain cases, damages for the patrimonial loss he may have suffered as a result of bodily inju- ries. Thus the way was prepared for the expansion of the Aquilian action into a general remedy for all patrimonial loss caused wrongfully. Roman-Dutch law In Roman-Dutch law, the dimensions of Aquilian liability underwent very important extensions, going beyond the limits of Roman law. Firstly, there were definite indica- tions that the requirement of physical impairment of a thing was no longer insisted upon.46 Secondly, damages could be claimed with the Aquilian action for patrimonial damage resulting from any injury to personality (iniuria)47 and not only, as was the case in Roman law, for an injury to personality in the form of bodily injury.48 Thirdly, Roman-Dutch law went much further than Roman law in granting an action to the holder of a personal right in respect of a thing. The availability of the Aquilian action was extended to the borrower, the fullo49 (or persons in similar relationships to the owner) and the lessee of the services of a slave or serv- ant.50 Lastly, the actio legis Aquiliae in Roman-Dutch law was also available to the dependants 42 D 9 2 27 14 (sharecropper). 43 D 9 2 53 and D 9 2 13 pr (Van der Merwe and Olivier 8; Van der Walt and Midgley Delict 10). 44 Van den Heever Aquilian Damages 28; Van der Walt and Midgley Delict 9–10. That does not mean that the object itself necessarily had to be damaged or destroyed. In I 14 3 16, recognition is given to the applicability of an actio in factum in the case where a slave had been set free and was thus able to escape. 45 It is important to bear in mind that although in classical Roman law fault (either intent or negligence) on the part of the wrongdoer was already stated as a requirement for liability (Van den Heever Aquilian Damages 26–27; Van der Walt and Midgley Delict 9), the nature of the act (and its effect) was of primary importance, and the attitude of the wrongdoer of secondary importance. 46 Voet 20 1 11 says that an actio in factum must be given to a prejudiced creditor against the actuarius who culpably omits to comply with the formalities concerning the creation of a hypothec, or who, when asked about it, declares that property is unmortgaged while this is in fact not the case. (See also Matthaeus 1 19 86; The Cape of Good Hope Bank v Fischer (1886) 4 SC 368; cf in general Van der Walt and Midgley Delict 10–11.) 47 Voet 47 10 18. Voet states that only the amende honorable and amende profitable (which replaced the actio iniuriarum in Roman-Dutch law: infra 14) could be instituted for iniuria, except where the iniuria also caused pat- rimonial damage. In such a case damages could then be claimed under the lex Aquilia. 48 Cf however De Villiers Injuries 155 fn 20 184. 49 That is, a person who receives clothes for the purpose of repairing them for remuneration. 50 Eg Voet 9 2 10; Van der Walt and Midgley Delict 11. In the case of the servant, of course, one is not dealing with damage to property. of a free person who had been killed,51 and to parents or employers for patrimonial loss suffered where a child or domestic servant had been injured.52 These important developments do not indicate, however, that the Aquilian action in Roman- Dutch law had developed into a general remedy for the culpable and wrongful causing of patri- monial damage. Since none of the old authorities makes this point unequivocally, it does not seem as if the law had advanced to this level.53 There are nevertheless a number of South Afri- can decisions in which a different conclusion about the position in Roman-Dutch law was reached. For example, in The Cape of Good Hope Bank v Fischer,54 De Villiers CJ stated with reference to Voet and Matthaeus:55 It appears from both these authors that in their time the Aquilian law had received an extension by ana- logy to a degree never permitted under the Roman law. The action in factum was no longer confined to cases of damage done to corporeal property, but was extended to every kind of loss sustained by a person in consequence of the wrongful acts of another.56 South African case law Whatever the end result was in Roman-Dutch law, the abovemen- tioned decisions nevertheless give the impression that, in modern South African law, Aquilian liability results from every culpable and wrongful act which causes patrimonial damage.57 This viewpoint was given prominence by the following remark, made by Watermeyer J in Perlman v Zoutendyk:58 Roman-Dutch law approaches a new problem in the continental rather than the English way, because in general all damage caused unjustifiably (injuria) is actionable, whether caused intentionally (dolo) or by negligence (culpa). Nowadays, there is no dearth of decisions underscoring the viewpoint that the Aquilian action has in fact reached its logical end development in South African law. In contradistinction to earlier cases,59 which require physical injury to person or property to found Aquilian liability, it is today established law that compensation for so-called “pure” economic loss60 may in principle be claimed ex lege Aquilia.61 In Coronation Brick (Pty) Ltd v Strachan Construction Co (Pty) Ltd,62 Booysen J stated clearly: The legal basis of the plaintiff ’s claim is the lex Aquilia. In essence the Aquilian action lies for patrimo- nial loss caused wrongfully (or unlawfully) and culpably. Although the contrary view had long been held by many authorities, it seems clear that the fact that the patrimonial loss suffered did not result from physical injury to the corporeal property or person of the plaintiff, but was purely economic, is not a bar to the Aquilian action. 51 Eg Voet 9 2 11; Van der Walt and Midgley Delict 13. 52 Eg De Groot 3 34 3; Van der Walt and Midgley Delict 14. 53 Neethling Van Heerden-Neethling Unlawful Competition 71; cf however Van der Walt and Midgley Delict 15. 54 (1886) 4 SC 368 376. 55 Supra fn 46. 56 See also Matthews v Young 1922 AD 492 504; Bester v Commercial Union Versekeringsmaatskappy van SA Bpk 1973 1 SA 769 (A) 776–777. 57 Or at least certain kinds of patrimonial damage where a physical infringement (damage to property or impairment of personality) was completely out of the question. 58 1934 CPD 151 155; see also supra fn 13. 59 Such as Combrinck Chiropraktiese Kliniek (Edms) Bpk v Datsun Motor Vehicle Distributors (Pty) Ltd 1972 4 SA 185 (T) 191–192. 60 See infra 305 ff for a definition of this concept. 61 See eg Greenfield Engineering Works (Pty) Ltd v NKR Construction (Pty) Ltd 1978 4 SA 901 (N); Freddy Hirsch Group (Pty) Ltd v Chickenland (Pty) Ltd 2011 4 SA 276 (SCA); Indac Electronics (Pty) Ltd v Volkskas Bank Ltd 1992 1 SA 783 (A); Minister of Law and Order v Kadir 1995 1 SA 303 (A); BOE Bank Ltd v Ries 2002 2 SA 39 (SCA); Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA 2006 1 SA 461 (SCA); Minister of Finance v Gore 2007 1 SA 111 (SCA); Fourway Haulage SA (Pty) Ltd v SA National Roads Agency Ltd 2009 2 SA 150 (SCA). See in general Loubser and Midgley (eds) Delict 228–233; Van der Walt and Midgley Delict 93–95; Boberg Delict 103 ff. This is dealt with in detail infra 305 ff. 62 1982 4 SA 371 (D) 377. The Appellate Division confirmed this view in respect of delictual liability for negligent misrep- resentation63 and unlawful competition.64 The development of the actio legis Aquiliae to its logical conclusion is however hampered by Union Government v Ocean Accident and Guarantee Corporation Ltd.65 As a result of this decision, the courts have (as a rule) refused to extend Aquilian liability for negligent interference with a contractual relationship beyond certain historically justified exceptions.66 Be that as it may, there are indications that the Supreme Court of Appeal has commenced reconsidering its decision in this respect.67 It may be concluded that, despite a few decisions to the contrary, there is a very strong tendency in case law to recognise Aquilian liability for all patrimonial loss caused wrongfully and culp- ably. It is in any event apparent that the extent of this liability has increased a great deal in modern law68 and can still be expanded. Indeed, in Union Government (Minister of Railways and Harbours) v Warneke,69 Innes JA held: The position of our law with regard to negligence to-day is the result of the growth and the regulated expansion of the original provisions of the Lex Aquilia. Crude and archaic in some respects, their opera- tion was gradually widened by the application of the utilis actio, and by the interpretation of the Roman jurists. The broadening process was continued by Dutch lawyers on the same lines; and there is no rea- son why our Courts should not similarly adapt the doctrine and reasoning of the law to the conditions of modern life, so far as that can be done without doing violence to its principles. From this it is apparent that there can be no objection to the extension by analogy of the dimen- sions of Aquilian liability in order to cope with changing circumstances. And, since the Appel- late Division in Administrateur, Natal v Trust Bank van Afrika Bpk70 treated infringements of corporeal objects (such as things) and incorporeal objects (such as the general patrimonial interests that could be at stake in the case of misrepresentations) alike for the purposes of Aqui- lian liability (and thus in principle denied a distinction between the causing of damage by words on the one hand and by deeds on the other), there is no reason why every infringement of any 63 Eg Administrateur, Natal v Trust Bank van Afrika Bpk 1979 3 SA 824 (A); also see eg Delphisure Group Insurance Brokers Cape (Pty) Ltd v Dippenaar 2010 5 SA 499 (SCA); Cape Empowerment Trust Limited v Fisher Hoffman Sithole 2013 5 SA 183 (SCA); mCubed International (Pty) Ltd v Singer 2009 4 SA 471 (SCA); ABSA Bank Ltd v Fouche 2003 1 SA 176 (SCA); OK Bazaars (1929) Ltd v Standard Bank of South Africa Ltd 2002 3 SA 688 (SCA); Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd 1985 1 SA 475 (A); EG Electric Co (Pty) Ltd v Franklin 1979 2 SA 702 (E). (See in general Loubser and Midgley (eds) Delict 224–227; Neethling and Potgieter 1980 De Rebus 179–182; Boberg Delict 58 ff. This is discussed in detail infra 313 ff.) In Bayer South Africa (Pty) Ltd v Frost 1991 4 SA 559 (A), the court also extended delictual liability for negligent misrepresenta- tion to instances where the misrepresentation led to the conclusion of a contract (see infra 322–323). Initially, the courts were reluctant to grant a delictual action based on negligent misrepresentation to a contracting party if a breach of the contract caused only pure economic loss. Now a claim ex delicto is in order, provided all the delictual requirements are complied with (see infra 273 ff). 64 Eg Schultz v Butt 1986 3 SA 667 (A); Taylor and Horne (Pty) Ltd v Dentall (Pty) Ltd 1991 1 SA 412 (A); Phumelela Gaming and Leisure Ltd v Grűndlingh 2007 6 SA 350 (CC); Premier Hangers CC v Polyoack (Pty) Ltd 1997 1 SA 416 (A); Geary and Son (Pty) Ltd v Gove 1964 1 SA 434 (A). See in general Neethling Van Heerden-Neethling Unlawful Competition 74 ff; Loubser and Midgley (eds) Delict 238–246. This is discussed in detail infra 327 ff. 65 1956 1 SA 577 (A). 66 As will be seen (see infra 323 ff for a detailed discussion), intent is set as a requirement for liability – this also applies to liability for so-called “injurious falsehood” (see Neethling Van Heerden-Neethling Unlawful Competition 72–73 for a critical discussion). 67 See Minister for Safety and Security v Scott [2014] 3 All SA 306 (SCA); cf Dantex Investment Holdings (Pty) Ltd v Brenner 1989 1 SA 390 (A) 395; see also Lanco Engineering CC v Aris Box Manufacturers (Pty) Ltd 1993 4 SA 378 (D) 380–381. This is discussed in detail infra 323 ff. 68 In South African case law the availability of the Aquilian action to persons who only have a personal right with regard to a thing was also extended further than in Roman-Dutch law: see Smit v Saipem 1974 4 SA 918 (A) (hire- purchaser); also Tarmacadam Services (SA) (Pty) Ltd v Minister of Defence 1980 2 SA 689 (T) (long-term lessee). 69 1911 AD 657 664–665; see also Latham v Sher 1974 4 SA 687 (W) 694; Zimnat Insurance Co Ltd v Chawanda 1991 2 SA 825 (ZS) 829–833 (1990 1 SA 1019 (ZH)). 70 1979 3 SA 824 (A). incorporeal object should not ground the actio legis Aquiliae, provided that all the requirements for the action are met. This does not mean that a liberal approach should be followed in every case. On the contrary, our courts adopt a conservative approach to the expansion of the Aquilian action and will, according to Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd,71 only permit such an extension if it is justified by policy considerations: South African law approaches the matter in a more cautious way . . . and does not extend the scope of the Aquilian action to new situations unless there are positive policy considerations72 which favour such an extension.73 4.3 Actio iniuriarum74 Roman law The Roman law concerning liability for injury to personality (iniuria) is of cardinal importance to our law, since it has been adopted almost without change in South Africa. The protection of personality had its origin in the Twelve Tables and was directed mainly at the physical person, ie, bodily integrity as an interest of personality. Penalties in the form of fixed fines were imposed for os fractum (the fracturing of a bone) and membrum ruptum (the sev- erance of a limb) on the one hand, and for iniuria in a specific sense (less serious bodily injuries) on the other.75 Over the course of time, the protection of personality has been extended considerably by praeto- rian reforms. Firstly, the rigid fines of the Twelve Tables have been replaced by a judicial taxatio, in accordance with the bodily infringement complained of. Secondly, the protection of personality has also been made applicable to the following non-physical interests:76 good name,77 dignity,78 feelings of chastity79 and privacy.80 These extensions eventually resulted in the iniuria concept developing into a general delict in the classical period.81 One should, however, always bear in mind that the Roman law approach to the field of iniuria was casuistic.82 There was no question of an organised system for the protection of personality rights. Consequently, in order to ascertain the extent of the protection of personality – ie, which interests of personality were legally recognised – it is necessary to classify the casuistry of the sources according to one or other system. The generally acceptable 71 1985 1 SA 475 (A) 500 503–504; see further eg Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA 2006 1 SA 461 (SCA) 468; AB Ventures Ltd v Siemens Ltd 2011 4 SA 614 (SCA) 620– 622; Steenkamp NO v Provincial Tender Board, Eastern Cape 2006 3 SA 151 (SCA) 162; Trustees, Two Oceans Aquarium Trust v Kantley & Templer (Pty) Ltd 2006 3 SA 138 (SCA) 145; Kantey & Templer (Pty) Ltd v Van Zyl NO 2007 1 SA 610 (C) 618–619; Living Hands (Pty) Ltd v Ditz 2013 2 SA 368 (GSJ) 378–379; Natal Fresh Pro- duce Growers’ Association v Agroserve (Pty) Ltd 1990 4 SA 749 (N) 754; Joubert v Impala Platinum Ltd 1998 1 SA 463 (B) 476; McMurray v HL&H (Pty) Ltd 2000 4 SA 887 (N) 903; cf Kadir v Minister of Law and Order 1992 3 SA 737 (C) 742. See further Neethling and Potgieter 2007 THRHR 130. 72 See in general Van Aswegen 1993 THRHR 171 ff with regard to the role of policy considerations in the law of delict. 73 Although this apparently deals with the question of whether it is desirable or essential to recognise (or extend) Aquilian liability, it is often equated with the determination of wrongfulness as element of a delict. This contentious issue is discussed in depth infra 85–87. 74 See in general Neethling, Potgieter and Visser Neethling’s Law of Personality 40 ff 45 ff 49 ff. 75 Van der Walt and Midgley Delict 13–14; Neethling, Potgieter and Visser Neethling’s Law of Personality 40. 76 Neethling, Potgieter and Visser Neethling’s Law of Personality 40–42. 77 D , 27 (defamation of a person as an iniuria). 78 D 47 10 15 2 (public ridicule of a person as an iniuria) and D (addressing or following of someone in an indecent manner as an iniuria). 79 D –18 (abduction of the companion of a woman or young man as an iniuria). 80 D 47 10 5 pr (violent entering of a house as an iniuria). 81 D 47 10 1 pr; Neethling, Potgieter and Visser Neethling’s Law of Personality 42. 82 The emphasis falls mainly on the ways in which an iniuria can be committed: see Neethling, Potgieter and Visser Neethling’s Law of Personality 4 fn 16. classification of iniuriae found in Roman law83 is that the actio iniuriarum was applicable to impairments of corpus, fama and dignitas. However, although one may identify corpus and fama as independent interests of personality with more or less fixed meanings, the same cannot be said of dignitas. Dignitas was in any case not regarded as synonymous with honour or dignity as an interest of personality, but rather as a collective term for all interests of personality other than corpus and fama, which in Roman law had not yet been clearly distinguished from each other and independently defined.84 As a result, the door was left open for further development in the protection of personality by the praetor. In consequence, it is hardly surprising that various interests of personality, although not mentioned eo nomine, were included in the concept of dignitas in Roman law and as a result were brought under the protection of the actio iniuriarum. Apart from dignity, feelings of chastity and privacy that had already been dentified as protected interests under the praetorian edicts, feelings of piety and religious and family feelings85 were now also, in certain cases, regarded as worthy of protection. One may assume with a reasonable measure of certainty that, in addition to the requirement that a legally recognised interest of personality had to be infringed, Roman law required intent (dolus or animus iniuriandi) on the part of the wrongdoer before an iniuria could be said to have been committed.86 The requirement that the infringement must be accompanied by contumelia indi- cates only the intentional contempt (violation) of another’s personality, and does not mean, as has sometimes incorrectly been stated, that the intent to insult or to violate a person’s honour had to accompany every iniuria.87 One may conclude that although the concept of iniuria developed into a general delict intended to protect personality interests, it would be unwise to maintain that the actio iniuriarum protect- ed the personality in its entirety. At most, it can be said that in principle the action was available for every intentional infringement of a person’s corpus, fama or dignitas. The door was, how- ever, left open for further development in the sphere of personality protection, since the concept of dignitas was wide enough to include new facets of the personality deemed worthy of protec- tion. Roman-Dutch law In essence, the Roman law delict iniuria remained unaltered in Roman- Dutch law.88 Although the field of iniuria has been approached differently by various writers,89 it is apparent that, insofar as the identification of protected interests of personality is concerned, they did not proceed much further than the level reached in Roman law. Apart from the fact that some writers identified libertas (freedom) as an additional personality interest,90 the only other protected interests on which unanimity existed were corpus and fama. As was the case in Roman law, dignitas (and related concepts such as hoon (used by De Groot)91 and eer (used by Van der Linden),92 was not regarded as an independent, clearly defined interest of personality. These concepts may therefore be regarded as collective terms for interests of personality which were neither identified nor clearly delimited in Roman-Dutch law, and which were broad enough to include new interests of personality worthy of protection. 83 D 47 10 1 2. 84 See Neethling, Potgieter and Visser Neethling’s Law of Personality 43-44 45 for a summary of the views on the concept of dignitas. 85 Eg D 47 10 27: the actio iniuriarum was available to the family members of a deceased whose gravestone had been damaged. 86 Neethling, Potgieter and Visser Neethling’s Law of Personality 44–45; Van der Walt and Midgley Delict 12. 87 Neethling, Potgieter and Visser Neethling’s Law of Personality 44–45. 88 Idem 45–49; Van der Walt and Midgley Delict 12; Van der Merwe and Olivier 14–15. 89 Neethling, Potgieter and Visser Neethling’s Law of Personality 45–47. 90 Idem 46–47. 91 3 35 1; Neethling, Potgieter and Visser Neethling’s Law of Personality 46–47. 92 Cf Joubert Grondslae113 fn 25. Similarly, the old writers did not depart in any material way from Roman law with regard to the requirements for liability for an iniuria.93 It must, however, be emphasised that, unlike Roman law, the old writers expressly required intent (dolus malus or animus iniuriandi) as an element of liability for an iniuria. Although the concept contumelia was also used, the writers do not appear to attach a specific meaning to it. All that it probably refers to is conduct that demonstrates contempt for a person’s personality. No support can be found in their writings for the view that contumelia should be interpreted exclusively to mean insult or injury to a person’s honour.94 In conclusion, mention should be made of a particular development in the field of personality protection in Roman-Dutch law. The actio iniuriarum was replaced by two actions, the amende profitable and the amende honorable. The former, like the actio iniuriarum, was aimed at the recovery of satisfaction. The latter departed completely from the actio iniuriarum: an injured person could claim a palinodia or recantatio, ie, demand that the wrongdoer withdraw his words and deny the truth thereof; as well as a deprecatio, ie an admission of guilt and a request for forgiveness.95 96 South African case law The question of whether and to what extent South African case law has built on the common law basis in respect of the identification and recognition of personality interests now arises. Firstly, it should be noted that, apart from certain English law influences regarding iniuriae,97 the common law delict iniuria has actually undergone no change in South African law. In fact, the courts (almost without exception) start with Voet’s definition of this delict.98 In R v Umfaan,99 for example, Innes CJ stated with reference to Voet that an iniuria: is a wrongful act designedly done in contempt of another, which infringes his dignity, his person and his reputation. If we look at the essentials of iniuria we find . . . that they are three. The act complained of must be wrongful; it must be intentional; and it must violate one or other of those real rights, those rights in rem, related to personality, which every free man is entitled to enjoy. In short then, an iniuria is the wrongful, intentional100 infringement of or contempt for a person’s corpus, fama or dignitas.101 For present purposes, only the last of these concepts requires discus- sion. 93 It is, however, very important that Matthaeus (47 4 1 1) in his definition of the delict iniuria, now expressly recognises the boni mores (legal convictions of the community) as the criterion for wrongfulness. This criterion (which is discussed in detail infra 36 ff) already applied in Roman law with regard to some praetorian edicts as the basis for extending the protection of personality (Neethling, Potgieter and Visser Neethling’s Law of Personality 41 42 43). Thus, Matthaeus draws attention to the important function that the boni mores fulfil with regard to iniuria (Neethling, Potgieter and Visser Neethling’s Law of Personality 54–56; Joubert Grondslae 109; Van der Merwe and Olivier 14). 94 Neethling, Potgieter and Visser Neethling’s Law of Personality 47–48. 95 Joubert Grondslae 112; Van der Merwe and Olivier 14–15; Van der Walt and Midgley Delict 12. 96 After falling into disuse in South Africa for 150 years, the amende honorable has been resurrected in case law (see infra 268 fn 18). 97 This is discussed in detail infra . 98 47 10 1. 99 1908 TS 62 66; for further examples from the case law, see Walker v Van Wezel 1940 WLD 66 67; Carelse v Van der Schyff 1928 CPD 91 94; Brenner v Botha 1956 3 SA 257 (T) 260–261; S v A 1971 2 SA 293 (T) 297; Matthews v Young 1922 AD 492 503; Boswell v Union Club of SA (Durban) 1985 2 SA 162 (D) 164–165; R v Chipo 1953 4 SA 573 (A) 576; cf SAUK v O’Malley 1977 3 SA 394 (A) 402. 100 However, the view that intent should be replaced by negligence as requirement for iniuria has, for very good reasons, been advanced (see Neethling, Potgieter and Visser Neethling’s Law of Personality 58–59; Neethling 2008 SALJ 43–45; Knobel 2002 THRHR 24 ff; Marais v Groenewald 2001 1 SA 634 (T) 646). It is not surprising that negligence has, over the course of time, been accepted as the fault requirement of certain forms of defamation (see infra 365). Furthermore, there was an attempt to abandon animus iniuriandi in favour of gross negligence in respect of malicious prosecution as iniuria (infra 367–368). Moreover, strict liability applies in respect of wrongful depriv- ation of liberty and wrongful attachments of property (see infra –389). See, however, Midgley in Boezaart and De Kock (eds) 187 ff. 101 In Hofmeyr v Minister of Justice 1993 3 SA 131 (A) 154, the court formulates this principle in the following words: “Injuria is the wrongful and intentional infringement of an interest of personality.” See further NM v Smith (Free- dom of Expression Institute as amicus curiae) 2007 5 SA 250 (CC) 265–266. The present position is that the courts identify, recognise and protect corpus (physical integrity) and fama (good name) as separate interests of personality.102 However, views about the meaning to be attached to the concept of dignitas vary considerably.103 On the one hand, certain decisions104 limit dignitas to the personality interest of dignity or honour, and consequently require an “element of degradation, insult or contumelia” for an iniuria to have been committed against the dignitas. The emphasis on contumelia in the sense of an insult is furthermore not restricted solely to iniuria pertinens ad dignitatem. There are deci- sions that go so far as to require contumelia in this sense for every iniuria.105 No support can, however, be found for these views in our common law sources. Contumelia in the sense of an insult was at no stage a general requirement for the delict iniuria. Furthermore, the concept of dignitas was never restricted to the personality interest of “dignity”.106 For these reasons, the rejection of these views by the Appellate Division can be wholeheartedly supported.107 On the other hand, one encounters decisions that correctly interpret the concept of dignitas in its broad common law meaning and refuse to restrict its application to the personality interest of “dignity”. The leading decision in this regard is O’Keeffe v Argus Printing and Publishing Co Ltd.108 Watermeyer AJ109 accepted that the actio iniuriarum is available for “an intentional wrongful act which constitutes an aggression upon [a plaintiff’s] person, dignity or reputation”. Since in this case there was no question of the infringement of the plaintiff’s “person” or “repu- tation”, the only question was whether there was infringement of “dignity” or “those rights relating to . . . dignity”. It is evident from the judgment that the judge interpreted dignitas110 so widely that it encompasses all aspects of the legally protected personality, except fama and corpus. As such, dignitas cannot be considered as a single interest of personality; it is rather a concept encompassing all “those rights relating to . . . dignity”.111 Dignitas is thus a collective term for all rights (interests) of personality with the exception of the rights to good name and to physical integrity. This view of the concept of dignitas can be supported.112 As indicated, it accords with the wide common law meaning attached to the concept. Another important point is that this approach offers a good basis for the identification, recognition and delimitation of individual, independent rights of personality in South African law. In this way, the proper scientific classification and practical handling of personality rights (apart from those relating to corpus and fama) can find application in positive law. At the same time, dignitas serves as a basis for the extension of personality protection. 102 See infra 345 351. 103 Cf Jackson v NICRO 1976 3 SA 1 (A) 11. 104 Eg Walker v Van Wezel 1940 WLD 66 70 (see also 68); R v Umfaan 1908 TS 62 68; Kidson v SA Associated News- papers Ltd 1957 3 SA 461 (W) 467; Mhlongo v Bailey 1958 1 SA 370 (W) 371–372. 105 Eg Matthews v Young 1922 AD 492 503, where De Villiers JA said that “there is an element of contumelia, insult, in every iniuria in this sense, for which this action lies”. Only contumelious or insulting infringements of corpus, dignitas and fama are thus regarded as iniuriae. 106 See also Joubert Grondslae 93–94. 107 Foulds v Smith 1950 1 SA 1 (A) 11; see also O’Keeffe v Argus Printing and Publishing Co Ltd 1954 3 SA 244 (C) 248; cf further Moaki v Reckitt and Colman (Africa) Ltd 1968 3 SA 98 (A) 104; Jackson v NICRO 1976 3 SA 1 (A) 10–11; Neethling, Potgieter and Visser Neethling’s Law of Personality 50 fn 137. SA 244 (C). 109 247–248. 110 It is important to note that for the judge the concepts of “dignity” and dignitas are identical. 111 This viewpoint is also apparent from Dendy v University of the Witwatersrand, Johannesburg 2005 5 SA 357 (W) 366–367; Khumalo v Holomisa 2002 5 SA 401 (CC) 418; Gosschalk v Rossouw 1966 2 SA 476 (C) 490; Fayd’herbe v Zammit 1977 3 SA 711 (D) 718–719; cf also S v A 1971 2 SA 293 (T) 297. The approach in the O’Keeffe case with regard to the delict iniuria has also by implication been accepted by the Appellate Division (Moaki v Reckitt and Colman (Africa) Ltd 1968 3 SA 98 (A) 104). 112 See also McQuoid-Mason Privacy 124–125; Neethling, Potgieter and Visser Neethling’s Law of Personality 50–51; Van der Walt and Midgley Delict 113; Neethling in Nagel (ed) 91–93; Snyman Strafreg 492. The question of which rights of personality are accorded independent recognition and protection by our positive law is discussed below. For the moment, it suffices to say that, apart from fama and corpus, dignity, privacy, identity and to a lesser extent feelings, are accorded protection and recognition in our case law.113 4.4 Action for pain and suffering Unlike the Aquilian action and the actio iniuriarum, the action for pain and suffering did not originate in Roman law. No compensation could be claimed under Roman law for the negligent causing of bodily injuries.114 By contrast, the position in Roman-Dutch law, under the influence of Germanic customary law, was that pain, suffering and bodily disfigurement as a result of physical injuries founded an action.115 Although this action was dealt with by most of the old writers in the same breath as the Aquilian action, the two actions were nevertheless different. In Roman-Dutch law, the actio legis Aquiliae was restricted to patrimonial damage, and thus did not include compensation for injury to personality as a result of pain and suffering.116 However, the action for pain and suffer- ing did not reach its logical end development in Roman-Dutch law. Clearly not every form of harm relating to physical-mental integrity and resulting from a culpable act was actionable, as the old authorities only mention compensation for pain, suffering and bodily disfigurement.117 No reference was made to other forms of harm related to physical-mental integrity, such as shock, loss of amenities of life and loss of life expectancy. The action for pain and suffering has been adopted by South African law and is considered by the courts, just as in Roman-Dutch law, to be a unique action that cannot be classified with the actio legis Aquiliae or with the actio iniuriarum.118 The courts, however, continued to develop the action, with English law playing an important role, to the extent that it now protects the physical-mental integrity of a person in its entirety.119 In addition to pain, suffering and dis- figurement, which had already been identified at common law, this protection is particularly apparent insofar as psychological or mental injury is equated with physical (bodily) injury in the area of emotional shock,120 and loss of (or shortened) life expectancy,121 amenities of life and health122 are recognised as injuries to personality for which compensation may be claimed. In 113 In Van der Merwe v Road Accident Fund (Women’s Legal Centre Trust as amicus curiae) 2006 4 SA 230 (CC) 253, Moseneke DCJ declared: “Besides bodily integrity, our law recognises and protects other personality interests such as dignity, mental integrity, bodily freedom, reputation, privacy, feeling, and identity.” 114 Joubert Grondslae 111; Visser Kompensasie en Genoegdoening 199–204. 115 Eg Voet 9 2 11; De Groot 3 34 2; Matthaeus 47 3 3 4; Van der Linden 1 16 3; see in general Visser Kompensasie en Genoegdoening 207–218; Joubert Grondslae 111; Hoffa v SA Mutual Fire and General Insurance Co Ltd 1965 2 SA 944 (C) 950–951; Bester v Commercial Union Versekeringsmaatskappy van SA Bpk 1973 1 SA