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Working the Common Law Pure: Developing the Law of Delict (Torts) in Light of the Spirit, Purport and Objects of South Africa's Bill of Rights [Article]

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Working the Common Law Pure: Developing the Law of Delict (Torts) in Light of the Spirit, Purport and Objects of South Africa's Bill of Rights [Article] Working the Common Law Pure: Developing the Law of Delict (Torts) in Light of the Spirit, Purport and Objects of South Africa's Bill of Rights [Article] Item Type Article; text Authors Roederer, Christopher J. Citation 26 Ariz. J. Int'l & Comp. L. 427 (2009) Publisher The University of Arizona James E. Rogers College of Law (Tucson, AZ) Journal Arizona Journal of International and Comparative Law Rights Copyright © The Author(s) Download date 27/09/2021 11:47:40 Item License http://rightsstatements.org/vocab/InC/1.0/ Version Final published version Link to Item http://hdl.handle.net/10150/659023 WORKING THE COMMON LAW PURE: DEVELOPING THE LAW OF DELICT (TORTS) IN LIGHT OF THE SPIRIT, PURPORT AND OBJECTS OF SOUTH AFRICA'S BILL OF RIGHTS Christopher J. Roederer* [T]he common law... works itself pure by rules drawn from the fountain of justice.' The darkest thing about Africa has always been our ignorance of it.++ INTRODUCTION South Africa lies at the Southern tip of the African continent nearly 8,000 miles away from the U.S. It has eleven different official languages' and combines significant populations from Africa, India, the Netherlands, and the United Kingdom. It is home to the cradle of humankind, where archeologists have found about 40% of the world's human ancestor fossils.2 It also has large numbers of elephants, giraffes, lions, rhinoceroses, and zebras. As exotic as this may sound, there are no tigers, except in the zoo, no cannibals, unless you count the spiders,3 and no headhunters, unless you are looking for the right person to fill an executive * Associate Professor of Law, Florida Coastal School of Law; Senior Research Fellow, University of the Witwatersrand School of Law. The author thanks the panelists from the American Association of Law Schools Annual Meeting panel on Comparative Tort Law: Beyond Europe, organized by the Torts and Compensation Section, the numerous members of the section who attended and provoked further thought on these issues, and in particular, Ellen Bublik, who brought us all together for this panel. I also thank the many colleagues at Florida Coastal who attended the presentation of this paper at the AALS as well as Brian Foley, Michael Lewyn, Elizabeth DeCoux, and Itzchak Kornfeld for comments on earlier drafts of this work. The research was made possible by a summer research grant from Florida Coastal School of Law. Finally, special thanks go to my research assistants. Jessica R. Rieffel worked tirelessly on the bulk of this paper up to the Conference, and Nina L. Banaie has been wonderful in helping me put the final touches on the piece. + Omychund v. Barker, (1744) 26 Eng. Rep. 15, 22-23 (P.C.) (U.K.) (Lord Mansfield). ++ George Kimble, Africa Today: The Lifting Darkness, REPORTER, May 15, 1951. 1. S. AFR. CONST. 1996, ch. 1, § 6(l). 2. Lucille Davie, Showcasing Humankind's Cradle, SOuTHAFRICA.INFo, Mar. 22, 2005, http://www.southafrica.info/travel/cultural/cradle-centre.htm. 3. Unless one counts the baboon spider, a large tarantula species that often engages in cannibalism. Ansie Dippenaar-Schoeman, The Baboon Spiders of South Africa, ScI. IN AFR., Nov. 2002, http://www.scienceinafrica.co.za/2002/november/baboon.htm. 428 Arizona Journalof International& ComparativeLaw Vol. 26, No. 2 2009 position, a professorial chair, or law school deanship. South Africa can be exotic, opaque, and strange, or it can be as familiar, transparent, and mundane as one's local shopping mall.4 Contrary to the literature that pigeonholes South Africa's legal tradition as something akin to a cave and its jurists as introspective hermits or monks, South Africa boasts one of the most open and cosmopolitan legal traditions known to humankind. I will not reveal all the mysteries of South Africa, or even all the mysteries surrounding the development of the law of delict in that country. However, I will shed light on some key features of South Africa's open legal tradition as well as the mechanisms at its disposal for developing its common law, and in particular, its law of delict. Throughout, I will be comparing and contrasting how the law in the United States (U.S.) and in South Africa has been developing, or "working itself pure." The contrast here is sharp. While in the U.S., the common law of torts has atrophied, in South Africa, it is thriving; while South Africa's law of delict is developing and working itself pure by drawing from South Africa's fountain of justice, namely the spirit, purport, and objects of its bill of rights, the U.S. common law of torts has been in decline over the last 20 years or so, largely due to a wave of regressive legislative tort reforms. Part I of this article both situates the South African legal system within a group of systems referred to as mixed jurisdictions and distinguishes it from that group by highlighting South Africa's open, cosmopolitan tradition. Part II addresses the question of South Africa's "relevance for us." This section draws on the lessons of a number of approaches to comparative law and makes the case that South Africa's law of delict is neither too unique nor too familiar for fruitful and interesting comparisons to the U.S. law of torts. It accomplishes this by explaining a number of core similarities and pointing out some key differences between the U.S. and South African approaches to torts and delict. Part III addresses the desirability of harmonizing the Constitutions of the U.S. and South Africa with the private law in these countries. This section also addresses the need in the U.S. and South Africa for what is called horizontal application (the application of constitutional rights to persons in their relations with other persons). Part IV returns to the theme of South Africa's open tradition by detailing the mechanisms in South Africa for developing the common law in general and the law of delict in particular. According to Jonathan Burchell, South African delict, not unlike torts, is 4. South Africa is in fact a place with many pockets of extremes, from the multitudes of fancy shopping malls that could be found in half the suburbs of America to the shanty-towns at the edges of townships, from its world-class modem infrastructure linking the country, to the expansive nature preserves. It boasts some of the finest academics, scientists and jurists in the world, yet it has a very high infant mortality rate, HIV rate and is one of the most unequal countries in the world. It combines, in part, the best and worst of human achievements and continues to separate, in part, the best and worst of human achievements. Working the Common Law Pure "dynamic-it can, and does, develop to meet the needs of a changing society."5 Unfortunately, under Apartheid, the law of delict primarily served a subset of South African society. It did not draw from the fount of justice in order to work its common law pure during this period. Apartheid delict did not generally consist of blatant racist or sexist decisions; it had a veneer of neutrality. However, that veneer not only masked the inequality beneath, but protected it. It further entrenched inequality through a conservative libertarian bias that assumed the freedom and equality of persons while the Apartheid apparatus ensured that the opposite was true. At best, the development of South African delict was arrested during the Apartheid era.6 The end of Apartheid not only provided for the transformation of South Africa's public law, it also provided mechanisms for the transformation of South African private law, including the law of delict. South Africa's final Constitution reinvigorated the claims of Lord Mansfield and Professor Burchell, by providing a framework for South Africa to continue the process of working the common law pure via the fountain of justice. The fountain of justice referred to here is not a reference to divine natural law or even to abstract reasoning, but is a reference to the conception(s) of justice embodied in the South African Constitution's Bill of Rights. South Africa's Constitution directs its jurists to that fountain in § 39(2), which provides that "when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights." Part IV explores the meaning of this provision along with § 8(2), which provides for the application of the Bill of Rights to natural and juristic persons. These provisions present a tall order for the courts to fill. Although there is room for criticizing the South African judiciary's attempts to fill the order, one should not expect perfection. If it was easy to determine what justice required, there would be little need for working the common law pure on a case-by-case basis. As will be demonstrated below, the constitutional text does not provide, and the courts have not settled on, a single comprehensive and coherent fount of justice for working South Africa's common law pure. Nonetheless, there is considerable evidence that the courts are striving to fill that order. The spirit and purpose of South Africa's new constitutional dispensation was to bring about a legal revolution rather than a bloody revolution. The Constitution drew from, and was designed to carry through, the struggle to end the oppression, gross inequality, and discrimination suffered by the vast majority of South Africans made possible by Apartheid public and private law. In doing so, the Constitution, like the struggle, drew from international human rights law, both as a means and as justification for overcoming Apartheid and its lingering effects.
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