The historical development of the concept 'reasonableness' in the law of delict

Abstract

The influence of reasonableness on the South African law of delict is evident in establishing all the individual elements of a delict. To some extent, there is confusion and uncertainty in general on the role of reasonableness in determining: delictual liability, the elements of delictual liability, and the tests for determining these elements. Confusion and uncertainty have occurred, in particular, where the influence of reasonableness is explicit, in respect of wrongfulness, negligence, and legal causation. The main reason for this stems from the fact that these elements involve value judgements and policy considerations, which in turn play a role in determining delictual liability. To a certain degree, the tests for determining these elements, as well as the elements themselves, have been conflated. The courts have used the concept of reasonableness as a safety net and as a tool to bring about fair and just outcomes. Before an analysis of the influence of reasonableness on the elements of liability in the current South African law of delict can be undertaken, it would appear desirable to gain an understanding of the historical development of the concept of reasonableness in the substantive law as a whole and from a broader international, philosophical perspective. The purpose of this contribution is to provide a very brief overview of the historical development of the concept of reasonableness in this sense.