The origins of the recent new approach to determining wrongfulness in the South African law of delict

Abstract

Much has been written about the “new” or “variation” of the test for wrongfulness in determining delictual liability in South African law. Upon researching English tort law, it has become apparent that the origin of this “new” test or “new variation” of the test (referred to as the “recent approach”) is in all probability from English tort law and more specifically from the test applied in determining a “duty of care” with regard to the tort of negligence. The South African courts, in applying this recent approach, are in fact drawing closer to adopting English law and the tort of negligence. In this note, the recent approach as well as the test applied to determining wrongfulness before this recent approach (referred to as the “traditional approach”) will be mentioned briefly. Fundamental similarities and differences between the South African law of delict and English tort law will be referred to briefly. The English test for determining a duty of care will be discussed and compared with the recent approach to determining wrongfulness in South African law. A conclusion will follow with a summary of the submissions made.