Southern Cross

(a) Civil Low mid Common Low in South Africa

A few years ago, the first large-scale attempt was made to trace the history of legal doctrine in South African law: one of the two major uncodified mixed legal systems in the world.

But even here we do not usually find the one strand of legal tradition continuing to exist in clinical purity. The law of procedure provides a good example. For, on the one hand, a particularly characteristic aspect of the English procedural model, the distinction between courts of law and courts of equity and the concomitant distinction

^n,? Reinhard Zimmermann and Daniel Visser (eds.), Southern Cross: Civil Law and Common Lau' in South Africa (1996).

^1,16 See now also Smits (n. 5) 157 if.

^,0? For a general account, see Reinhard Zimmermann, Das rOoijscli-ltolMiidisdie Recht in Siidafrikn (1983), 1 if.; Eduard Fagan, 'Roman-Dutch Law in its South African I listorical Context', in Zimmermann and Visser (n.

(b) Offer and Acceptance

The modern South African law on offer and acceptance may fairly be regarded as 'an anglicized version of an

^,wt See Reinhard Zimmermann, 'Good Faith and Equity', in Zimmermann and Visser (n. 105) 217 f.

^,n9 For details, see the analysis by H. J. Erasmus, "The Interaction of Substantive Law and Procedure’, in Zimmermann and Visser (n. 105) 141 if.

¹¹⁰ See David J. Joubert, 'Agency and Stipulatio Alteri', in Zimmermann and Visser (n. 105) 335 ff.

¹¹¹ See Schalk van der Merwe, L. E van Huyssteen, M. E B. Reinecke, G. F. Lubbe, and J. G. Lotz, Contract: General Principles (1993), 315 ff.

¹¹² The story of the rejection of the doctrine of consideration is told by Dale Hutchison, 'Contract Formation', in Zimmermann and Visser (n.

¹¹¹ See, as far as the Principles of European Contract Law are concerned, arts. 6:110 (Stipulation in Favour of a Third Party), 9:509 (Agreed Payment for Non- Performance), and 2:101 (Conditions for the Conclusion of a Contract); cf. also the comparative analysis (on the first two issues) presented in 1995 JZ 483 and 487 f. Generally on South African law as a potential model for legal harmonization of European contract law, see Smits (n. 5) 189 ff. essentially civilian doctrine'.¹¹⁴ For as it is recognized that (a) contracts are based on an agreement (consensus) between the parties, (b) such agreement must be manifested by two coinciding declarations of intention, namely offer and acceptance, and (c) an offer is freely revocable until it has been accepted, South African law moves as much within the thinking patterns established by the Natural lawyers as does English law.¹¹⁵ Commercial convenience prompted South African courts to accept the English 'mailbox-rule' established in Adams v. Lindsell:^u6 contrary to general prin­ciple, a contract to be concluded by post is formed already at the moment when the letter accepting the offer is dispatched. Kotze, JP, attempted to explain that rule in terms of the nature of contractual consensus: a contract comes into existence when the will to accept an offer has been manifested and the act dispatching the letter accepting the offer is nothing more than the typical manifestation of such will to be bound by the contract.¹¹⁷ In the process, Savigny, Miihlenbruch, Friedrich Ludwig Keller, and others became early protagonists of a continental mailbox theory;¹¹⁸ but it is noticeable that the Court in Adonis v. Lind- sell advanced a very similar argument.¹¹⁹

(c) Mistake

Contractual theory may emphasize the correspondence either of the will of the two parties to the contract (there has to be consensus ad idem) or of the declarations expressing

^1,4 Hutchison (n.

^{11 r}‘ See A. W. B. Simpson, 'Innovation in Nineteenth Century Contract Law', (1975) 91 LQR 257 if.; Law of Obligations (n. 40) 565 if.; James Gordley, 7lie Philo­sophical Origins of Modern Contract Doctrine (1991), 112 if, 139 f, 175 if

^1,6 (1818) 1 B & Aid 681,106 ER 250; confirmed by the House oi Lords in Dunlop v. Higgins (1848) 1 HLC 381, 9 ER 805. See, e.g., G. H. Treitel, The Law of Contract (10th edn., 1999), 23 if; Zweigert and Kotz (n. 90) 358 i.

ⁿ" Ca/v· E.\p!osiivs hbrfe, Ltd. v. South African Oil and Fat Industries, Ltd. 1921 CI’D 244; on this decision, and its background, see Zimmermann and Sutherland, (1999) 166 ZSS (RAI 169 if

¹¹⁸ Cape Explosives Works, Ltd. v. South African Oil and Fat industries, Ltd. 1921 CPD 244 (260, 261).

^1,9 (1818) 1 B & Aid 681,106 ER 250; and see Treitel (n. 116) 24 n. 73. such will.¹²⁽¹ Continental legal systems have usually accepted the will theory as their basic premise.^{[360] [361]} It was supported, influentially, by Savigny and Grotius but its intellectual ancestry has been traced back to Thomas Aquinas.^[362] English courts, however, in spite of their frequent use of will-related terminology,^[363] traditionally look at the expression of the will in order to determine whether (and with what content) a contract has been concluded.^{[364] [365]} But the objective approach has also found support in continental Natural law theory¹²³ and has char­acteristically influenced the Austrian General Civil Code.^[366]

Obviously, both approaches differ in their analysis of the problem of mistake. Taken to their logical extremes, the will theory would have to regard every error as operative as far as it has affected the contractual intention of one of the parties whereas, according to the declaration theory, a unilateral mistake cannot, in principle, have any effect at all as long as both parties have declared the same thing.

In South African law, will theory and declaration theory have, for a long time, been vying for recognition. Today the will theory is widely regarded as the proper point of depar­ture^[369] but it has been considerably modified by reliance­based considerations. A unilateral mistake renders a contract void if it is 'material'. In this regard the Roman classification of relevant errors has been of some assistance to the courts, though some of the Roman categories have been consider­ably modified.^[370] Generally speaking an error is material if it relates to one of the essential elements of the contract and thus excludes consensus; and it is not material if it relates only to a person's reasons for contracting. This distinction is obvi­ously based on Savigny's analysis of error.^[371]

In addition to being material, however, the mistake also has to be reasonable (Justus error). But when is a mistake reasonable? This remained unclear for a long time.^[372] From the late 1920s, however, a new approach gained ground. Rather than asking whether the error was iustus, it required the courts to establish whether the other party's belief in the existence of consensus was reasonable, for in the absence of mutual assent a contract might none the less be established on the basis of 'quasi-mutual assent'.^[373] This was, essentially, the principle established by Blackburn, J, in the famous English case of Smith v.

(J) Misrepresentation

A misrepresentation is a false statement of fact made by one party to the other before or at the time of the contract.^[378] It is obvious that a claim for damages lies whenever such misrepresentation was fraudulent; and the scope of the Aquilian action, as extended by the Appellate Division in Administrateur, Natal v. Trust Tank van Afrika Bpk.,^{[379] [380] appears to be broad enough to allow also the recovery of damages in cases of negligent misrepresentations.1'10 But what about the contract that was induced by the misrepresentation? Is it still enforceable, is it void, or can it be rescinded? In classi­cal Roman law no action could be granted on the basis of negotia bonne fidei affected by fraud; in all other cases relief had to be sought by raising the exceptio doli or by instituting the actio de dolo.[381] With the advent of the modern general law of contract the regime applicable to indicia bonne fidei should ultimately have prevailed. However, for a variety of reasons ipso hire invalidity of the contract induced by fraud did not appear to be a suitable solution, and thus it came to be recognized that the effect of fraud was at most to render the contract voidable at the instance of the innocent party.[382] But does this kind of rescission really depend on fraudulent behaviour, stricto sensu, on the part of the other party to the contract? In other words, does it require an intentional misstatement of an existing material fact?}

This was the problem addressed by Solomon, J, in Viljoen v. Hillier, decided in 1904.^[383] The judge not only rejected the proposition that, in order successfully to defend himself against the contractual claim, the defendant had to prove a fraudulent misrepresentation on the part of the plaintiff; he did not even regard proof of negligence as necessary. Fault was thus considered to be entirely irrelevant. Under Roman law, Solomon, J, argued, the defendant could have raised the exceptio doli under such circumstances, 'the dolus consisting not in fraud at the initiation of the contract, but in the fact that it is against good faith for a man to insist upon enforcing a contract which he has secured by his own misrepresentation'.^[384] The exceptio doli, here as in many other cases,^[385] provided a convenient screen behind which an entirely new doctrine could be introduced into the emerging South African version of Roman-Dutch law. For Solomon, J, quite clearly look his lead from English law and simply adopted the doctrine of innocent misrepresentation, as he perceived it to have been developed in equity. This is evident from his conspicuous remark that in his opinion 'by our law as well as by the English law the facts above enumerated would constitute a good defence';^{[386] [387] and also, particularly, from his reference to the decision of the Chancery Division in Redgrave v. Hurd, where Jessel, MR, had stated that it would be a 'moral delinquency' if the law were to allow a man to enforce a contract obtained by a statement which he now knew to be false (ex post facto fraud)}4, The impact on South African law of importing the doctrine of innocent misrepresentation has been profound.14,4 It has, effectively, meant that unilateral mistakes of motive, induced by the other party, are to be accorded legal effect; for if the mistake induced by the misrepresentation relates to one of the material elements of the contract, lack of consensus prevents the formation of a contract in the first place.}

Obviously, rescission of a contract in cases of a material misrepresentation fits in well with the fundamental premisses of contemporary Roman-Dutch law for there can be no doubt that the Labeonic conception of fraud,^[388] as it defined the range of application of the exceptio doii in Roman law and under the ius commune, had been consis­tently applied by South African courts.^[389] Nor is this corre­spondence surprising in view of the fact that 'the doctrine of equitable fraud las developed by nineteenth-century English courts! seems not only to have proceeded originally from a premise similar to that of the civil law but actually to have been inspired by it'.^{[390] [391]}

(e) Undue Influence

The notion of dolus also played a key role in the decision of the Appellate Division of the South African Supreme Court in Preller v. Jordaan.^}52 Referring to Labeo's famous defini­tion,^[392] Fagan, JA, expressed the opinion that it was broader than the concept of fraud since it did not carry such a strong connotation of moral censure.^[393] He pointed out that dolus in terms of the exceptio doli was taken to comprise conduct that could merely be described as inequitable and quoted a judgment by Kotze, JA,^[394] who had in turn relied on Savi- gny and Heumann for the proposition that dolus indicated 'anything which the law does not allow, anything inequitable, done with the consciousness that one is acting contrary to the law and good faith'. Fagan, JA, then explored the range of application of the term dolus among the 'classical' Roman-Dutch authors and finally came to the conclusion that it was broad enough to cover the case 'where one person obtaining an influence over another which weakens the latter's resistance and makes his will pliable, and where such a person then brings his influence to bear in an unscrupulous manner in order to prevail upon the other to agree to a prejudicial transaction which he would not normally have entered into of his own free will'.^[395] The innocent party, under these circumstances, may rescind the contract and claim restitutio in integrum.

Preller v. Jordaan constitutes the most serious, and ulti­mately successful, attempt to domesticate a doctrine which had already been repeatedly acknowledged and in some cases even applied:¹-⁷ the doctrine of undue influence, as developed by the English courts of equity.^{[396] [397] Again, there­fore, dolus has proved to be the most suitable port of entry for an equitable doctrine which has become an established part of South African private law.[398] [399] Undue influence, like innocent misrepresentation, is an emanation of a general norm requiring proper behaviour, particularly in contra- hendo.lM It has supplemented the comparatively narrow concept of metus as a ground of vitiating a contract[400] and has played a vital, corrective role in a number of distinctive areas.[401] In the English common law, at least since the nine­teenth century, duress used to be about as narrowly defined as metus in the earlier ius commune}[402] This is what induced the courts of equity to step in and grant relief in cases of undue influence.[403] [404] Again, there is an unmistakable intel­lectual link with civilian legal literature, especially Pothier's Traitf des obligations}65 Thus it may be said that '[a]s in the case of misrepresentation, the English law of undue influence constituted the impulse for a South African development which, rather than leading to the reception of a foreign doctrine, entailed the rediscovery' and adaptation of a general principle inherent in the broad civilian definition of do/i/s.166}

(/) Anticipatory Repudiation

Where a party to a contract manifests an unequivocal intention not to perform his obligation, the other party should not be expected to wait until the due date before taking legal action.¹⁶⁷ Modern legal systems, therefore, tend to grant to that other party a remedy for breach of contract in anticipando.^u-^s South African courts took over and applied the English doctrine of repudiation as it had been established in the mid-nineteenth century.¹⁶⁹ They did not, at first, realize that 'an entirely new doctrine, unknown to Roman-Dutch law, thereby came to form part and parcel of South African law'. English authorities were regularly quoted 'and so it hardly occasions surprise that not only the principle, but the underlying reasons for the principle as expressed in the leading English cases, were adopted'.¹⁷⁰ The introduction of this specific type of breach of contract was generally welcomed as both 'useful and

’·* Ibid. 293, 302. As far as modern European law is concerned, see art. 4:109 PECL.

¹⁶⁷ Cf. the policy considerations advanced by Lord Campbell in Hochster v. De la Tour (1853) 2 El & Bl 678.

·** In German law the rules relating to 'positive malperformance' are usually applied: cf. Volker Emmerich, in Mfinclteiier Kounnenlar zii»i Bilrgerlkhen Gesetz- buch, vol. ii Ord edn., 1994), Vor § 275 nn. 274 ff. On historical and comparative aspects of the doctrine of anticipator)· breach, see Francis Dawson, 'Metaphors and Anticipatory Breach', (1981) 4(1 Cambridge Law Jountal 83 ff.; James C. Gulotta Jr., 'Anticipatory Breach: A Comparative Analysis', (1975/fe) 50 Tulane biw Review 927 ff.

^,6Q See P. M. Nienaber, 'The Effect of Anticipatory Repudiation: Principle and Policy', (1962) 20 Cambridge Law Journal 213 ff.; idem, 'Enkele Beskouinge oor Kontrakbreuk in anticipando', (1963) 26 THRUR 22 ff. The leading case is Hochster v. De la Tour (1853) 2 El & Bl 678.

¹⁷⁰ The quotation is from Holmes, JA, in Crest Enterprises (Ply.) Ltd. v. Rycklof Beleggiugs (EdmsJ Bpk., 1972 (2) SA 863 (A) 869. On the position in Roman-Dutch law'see Nienaber, (1963) 26 THRHR 29 f. convenient'¹'¹ while being at the same time consonant with the basic principles of Roman-Dutch law.¹'² Final confirma­tion came with the decision of the Appellate Division in Novick v. Benjamin J⁷³

However, there were always pecularities arising, by and large,¹'¹ from the specific way in which the English courts had attempted to explain the fact that the creditor, confronted with the debtor's declared intention not to perform by the due date, was entitled to terminate the contract. Termination, it was argued, required an agree­ment between the parties to that effect; and so repudiation came to be interpreted as an offer which still had to be accepted by the other party. Thus, the perception gained ground that repudiation, unlike all other forms of breach of contract, required 'acceptance'.¹'¹ Only slowly did the South African courts manage to disentangle themselves from this kind of theoretical framework and to recognize that repudiation is in itself a breach of contract.^{[405] [406] [407] [408] [409] [410] The innocent party may now decide either to stand by the contract or to terminate it. By ignoring the repudiation he chooses the first alternative. By 'accepting' it, he exercises his election to terminate the contract. Thus, it is not the repudiation that terminates the contract;[411] nor does the contract come to an end as a result of an agreement between the parties.[412] Termination of the breach does not prevent the innocent party from claiming damages (for breach of contract); the ordinary principles governing assessment of his loss apply.1'[413] [414] In Tuckers Land and Develop­ment Corporation (Pty.) Ltd. v. Hovis,Jansen, JA, essen­tially accepted these principles and proposed, 'in order to obtain clarity of thought', finally 'to jettison the terminol­ogy of offer and acceptance'.}

But he went much further. For he took the opportunity to redefine the doctrinal foundations of repudiation:

It could be said that it is now, and has been for some time, felt in our domain, no doubt under the influence of English law, that in all fairness there should be a duty upon a promisor not to commit an anticipatory breach of contract, and such a duty has in fact often been enforced by our courts. It would be consonant with the history of our law, and also legal principle, to construe this as an application of the wide jurisdiction to imply terms conferred upon a court by Roman law in respect of the judicia bonae fidci. It would not then be inapt to say, elliptically, that the duty flows from the requirement of bona tides to which our contracts are subject, and that such duty is implied in law and not in fact.^[415]

The decisive step^[416] in Jansen's process of reasoning is the return to classical Roman law and the resuscitation of the power of the Roman index, within the framework of indicia bonae fidei, to decide in accordance with what appears to be equitable under the circumstances. In principle, according to Jansen, JA,^{[417] [418] [419] this meant that the Dutch courts should}

have had the same wide powers to read into a contract any term that justice required; and in spite of the fact that the Dutch courts do not seem to have made any creative use of these powers,¹⁸⁴ they still vest in the modern South African courts.¹⁸⁵

(g) Cancellation as a Remedy for Breach of Contract

A general right of cancellation for breach of contract¹⁸⁶ was never recognized in Roman law. This 'iron rule'¹⁸⁷ had been retained in Roman-Dutch law and it still dominated, as we have seen,¹⁸⁸ the nineteenth-century German ins commune. A remedy of cancellation was only available if it had expressly been conferred by way of a lex commissoria. From the last two or three decades of the nineteenth century, however, we find judicial statements in South Africa allow­ing for cancellation 'where time is of the essence of the contract'.¹⁸⁹ At about the same lime, South African courts also started to grant a right of cancellation in cases of 'posi­tive malperformance' (i.e. performance in a manner that fails to correspond with the content of the contractual duty), provided the defective performance concerned 'a vital part of the contract', or amounted 'to a failure to substantially perform', or constituted a 'breach of condi­tion' or, as it is usually put today, goes 'to the root of the contract'.¹⁹⁰

This generalized right of cancellation for material breach of contract was clearly taken over from English law; it has

^,s* See Jansen, JA, in Tuckers Until & Deivlopment Corporation (Pty.) Ltd. v. Hovis 1980(1) SA 645 (A) 652.

^Iftr' According to Cockrell (n. 176) 315, Jansen's judgment 'stands out as a remarkably innovative instance of doctrinal fusion in that it resurrected a Roman- Dutch doctrine often marginalized within mainstream contract law in order to effect the graft'.

¹⁸⁶ As opposed to specific instances of such right, such as the actio redhibitoria for latent defects in contracts of sale. For details, see Law of Obligations (n. 40) 578.

¹⁸⁷ Fritz Schulz, Classical Roman /.«tv (1951), 532.

¹⁸⁸ Supra p. 94.

¹⁸⁹ See Cockrell (n. 176) 307 f. with references.

¹⁹⁰ Ibid. 312 f. with references. For modern law see, e.g., Ontarian Properties (Pty.) Lid. v. Maroun 1973 (3) SA 779 (A) 784; Elgin Brown & I lamer (Pty.) Ltd. v. Industrial Machinery Suppliers (Pty.) Ltd. 1993 (3) SA 424 (A) 430. been described as the single most important development in the history of South African law relating to breach of contract.¹⁹¹ The relevant rules in English law originated in two decisions of William Murray, Lord Mansfield— Kingston v. Preston¹⁹² and Boone v. E\/re^}93— and they were based on the device of an implied condition.¹⁹¹ Whether they were inspired by civilian models is uncertain, though distinctly possible. For the Canon lawyers had always been guided by the rule frongenti fidem fides frangatiir eidenr.^]95 if a person had not been faithful to his promise it was not morally objectionable if the promisee did not keep his own promise towards him. This rule was read into the contract by means of an implied condition: subintellegitur conditio 'si [ides seivetur'.¹⁹⁶ The seventeenth- and eighteenth-century Natural lawyers argued along very similar lines:¹⁹⁷ it must be assumed that a party to a contract only wishes to honour his promise if the other party does what he has promised.¹⁹⁸

This is, essentially, the idea of the "concurrent conditions' that we find in English law. Like Lord Mansfield, the Natural lawyers invoked the hypothetical will of the parties and availed themselves of the device of a condicio tncita. Remarkably, therefore, in the course of the seventeenth and eighteenth centuries a right of cancellation for breach of

·*’ Cockrell (n. 176) 321.

¹⁹² See Junes v. Barklev (1781) 2 Doug 684 (690 f.), 99 ER 434.

1 II Bl 273 126 ER 148; cf. also 2 W Bl 1314, 96 ER 767.

¹⁹⁴ For details, see Zimmermann, (1993) 193 AcP 153 if.

^,*’⁵ See Georges Boyer, Recherche* historiques stir la resolution des contrals (1924), 220 if.; Hans Ankum, De twrouders tYiii een boze fee (1964), 10 if.; Friedrich Merzbacher, 'Die Regel "Fidem frangenti tides frangitur" und ihre Anwcndung', (1982) 99 ZSS (KA) 339 if.

¹⁹⁶ (The condition is implied 'provided the faith is kept’.) See, e.g., Decretales Gregory IX, lib. 11, tit. XXIV, cap. XXV (Innocent 111).

For details, see Karl Otto Schemer, Rilcktrittsrecht wegen Nichterfillhing: Lbifer- suchuugeu xnr deufscheii Primtrechtslehrr der Nettzcii (1965), 92 if.; cf. also Helmut Coing, Euivpitisclies Privafrecht, vol. i (1985), 444.

^{1counterparts, however, the courts retain a discretion to refuse specific performance. This discretion obviously has its roots in English equity: but it is no longer subject to any rules save that it be judiciously exercised in order to prevent injustice. In particular, therefore, South African law has freed itself of the restrictive categories developed by the English courts.[430] While the right to specific performance has been given greater scope, there still remains a tension, at least on a theoretical level, between the recognition of such right and the endorsement of an overriding discretion of the court. This may be regarded as unsatisfactory.[431]"1 At the same time, it is interesting to note that the comparative discussion in Europe also appears to be leading towards a pragmatic compromise.[432]}

(/) Aquilian Liability

Delictual liability in modern continental legal systems can be regarded as a generalized version of Aquilian liability.^{[433] [434]} The same is true of South African law. As elsewhere, however, it was very much disputed how far this process of generalization should be taken. Liability for negligent misstatements was one of the crucial issues. While South African courts were at first inclined to impose such liabil­ity,^[435] they changed their view in the 1890s.^[436] Undoubtedly this happened under the influence of the decision of the House of Lords in Derry v. Peek^[437] which was (wrongly) taken to confine liability for damages to cases of fraudulent misrepresentation.^[438] As in other jurisdictions, this cautious attitude was based on the fear of indeterminate liability; a fear which was increased by the fact that misstatements usually merely lead to purely patrimonial loss.^[439] It was only after the famous decision in Hedley Byrne v. Heller had brought about a dramatic readjustment of English law,^[440] that South African courts also started to reassess the situa­tion. The decisive breakthrough occurred in 1979, in Adtnin- istrateur, Natal v. Trust Batik van Afrika Bpk.^[441] In this decision the Appellate Division of the Supreme Court at last recog­nized that, in principle, a negligent misstatement causing pure economic loss could give rise to a claim for delictual damages, provided that the normal elements of Aquilian liability were satisfied. The Court warned, however, that liability would have to be carefully controlled, in particular by a judicious manipulation of the elements of wrongful­ness and causation.

Adininistrateur, Natal v. Trust Bank van Afrika Bpk. thus re­emphasized the key role of the old requirement of iniuria,^{[442] [443]} in its modern guise of wrongfulness, as distinct from and logically anterior to culpa (fault), in providing a niche for the open consideration of policy factors.²³' This development, in turn, was stimulated by the fact that South African courts had previously received the English notion of a 'duty to take care' into their formulations of Aquilian liability: a policy-based instrument that was seen to be 'basic to the development and growth of negligence and determining] its scope, that is to say, the range of relationships and inter­ests protected by it'.¹'⁸ A leading South African commenta­tor has summarized the development in the following words:²³⁹ 'If Aquilian liability is to be reduced to one general principle today, that principle would have to be that all patrimonial loss caused wrongfully and culpably is actionable... Expressing South African law in this sweep­ing way certainly emphasizes its inherently civilian nature and makes it look very different to that of England.... [Yet,) it is a notable fact that South African courts still refer far more frequently to English than to continental decisions in developing the law relating to liability for negligence.' This is a reflection, on the one hand, of the extent to which the English tort of negligence has been generalized this century;²⁴⁰ on the other hand it demonstrates that South African courts, just as their English counterparts, ultimately favour an incremental approach in expanding the bound­aries of delictual liability.²⁴¹

(k) Actio Iniuriarum

The English tort of defamation is, in many respects, distinctly different from the civilian delict of iniuria. Yet, there is also at least one very obvious structural similarity. In both systems, a (prima facie) defamatory imputation (no matter whether verbis or litteris) may give rise to a cause of

M. A. Milner, Negligence in Modern Law (1967), 230, quoted with approval by Rumpff, CJ, in Adiniiiisfratetir, Natal v. Trust Bank rwu Afrika Bpk. 1979 (3) SA 824 (A) 833. For the reception of the notion of the 'duty of care' into South African law, see Hutchison (n. 139) 620 ff.; Raitz von Frentz (n. 228) 282 ff.

^2W Hutchison (n. 139) 635.

²⁴⁰ For details of the development, see David Ibbetson, A Historical hitnxluctiou to the Law of Obligations (1999), 188 ff.

^2,1 See Hutchison (n. 139) 637; Raitz von Frentz (n. 228) 346 ff. and passim; Smits (n. 5) 229 if.; for English law, see Iiutchison and Zimmermann, (1995) 94 Zeitschrifl fiir vergleichende Rechtswisscnschaft 75 ff. action unless the person who has made the imputation is able to invoke one of a certain number of 'defences' or 'privileges'.^[444] This basic similarity enabled South African courts and writers to graft many of the English rules of defamation onto the Roman-Dutch actio iiiitiriarum that had originally been transplanted to the Cape.^[445] What has emerged, over the years, is a truly hybrid system that has emancipated itself from its Roman-Dutch and English roots and has, instead, acquired its own, South African, identity. Essentially, it is still the civilian actio iniuriarum that forms the basis of the law of defamation, and the gist of it is, as a rule, the presence of an animus iniuriandi.^[446]*⁴ Courts and legal writers have for some time toyed with the idea of a distinction, in principle, between libel and slander, but their view has failed to make an impact.^[447] Truth alone is not a defence in South African law; as in Roman-Dutch law, the additional requirement of the public benefit must be satis­fied.^[448] On the other hand, however, English case law and writers continue to be cited by South African courts.^[449] The test for determining what constitutes defamatory matter^[450] and the defence of fair comment^[451] are English in origin, and so is the element of 'publication' required for the modern South African version of iniitria.^[452] Many details relating to the stereotyped or crystallized defences have been taken over from English law, together with the term 'privilege' or 'privileged occasion'²·¹¹ and the distinction between an absolute and a qualified (or provisional) privi­lege.^{[453] [454]} The systematic division into defences rebutting the inference of unlawfulness (justification grounds) and those relating to the element of fault (that is: excluding the pres­ence of animus iniuriandi)^[455] is, however, of civilian (though not specifically Roman-Dutch) provenance.

Yet ultimately, and perhaps most importantly, it is still the civilian concept of iniuria that determines the scope and range of application of the actio iniuriarum. The starting point for an analysis of modern South African law is still Voet's (or, ultimately, Ulpian's^[456]) triad of legal interests protected by the delict of iniuria: corpus, dignitas, and /rtwifl.^[457] FflWfl leads us straight into the law of defamation. As far as the right to corpus is concerned, a distinction is usually drawn between the infringement of a person's physical (or bodily) integrity and an interference with his personal liberty.^[458] Determination of the term dignitas has proved to be more difficult. Yet it is widely accepted today that it should not be strictly limited to dignity and honour, but should rather be seen as a 'general clause', or nomen collectivum, comprising all rights of personality not yet specifically identified in the sources of the Roman-Dutch common law: everything, that is, except the rights to corpus and fama ^[459] It is within this broad framework that the protection of a person's right to his feelings of piety or chastity, of his right of identity, and, most importantly, his right to privacy find their place.^[460] Infringement of the right to privacy, in particular, has been recognized by South African courts on various occasions as a 'dignitary wrong' in the broad sense of the word.^[461] Unlike, particularly, German law with its restrictive list of rights and interests contained in § 823 I BGB,^[462] South African law thus had at its disposal an instrument that could be adjusted suitably to cope with the problem of the ever increasing potential for intrusions upon a person's private sphere. The recognition of the modern action for invasion of privacy was inspired, at least to some extent, by American law; but it was also 'a logical development under the actio injuriarum'.^[463]