Abstract

Keywords

Delict; legal classification; public-private divide; transformative legal history.

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1 Introduction

In honour of Professor Willemien du Plessis's contribution to legal history, in this article I will draw attention to the fact that various South African delict scholars have historically held the view (and still hold the view today) that the law of delict falls squarely and solely in the realm of private law. I will conduct a (mostly) analytical critique of this traditional classification of the South African law of delict. The critique will be "analytical" in the legal realist sense of the term in that I will be describing what the extant law really says and does, in order to evaluate the factual accuracy of delict's classification as forming part of private law. While the critique is primarily analytical, I will allude to some normative issues that arise about what our law of delict could mean for South African society.

I will show that there are notionally three dominant theories that could be used to justify the imposition of the private-law label onto a particular subject. The "actor theory" (inherited from Roman-Dutch law) dictates that private-law disciplines mediate disputes between non-state actors inter se. The "power theory" (a modern restatement of the actor theory) requires private-law disciplines to mediate disputes between actors who operate on a horizontal power level towards one another. The "interests theory" (inherited from Roman law) stipulates that private-law disciplines protect interests that are uniquely private instead of public. I will argue that all of these historical theories fail to give an accurate account of what delict presently does in South African law and society. Thus, my analytical endeavour is to show how the South African law of delict crosses the boundary between private and public law, as defined by the abovementioned theories.

The argument unfolds as follows. In Part 2 I will briefly explain why our classification of delict matters. The historical roots and fruit of the public/private divide and its relationship to the law of delict are my next concern in Part 3. That discussion is necessary to contextualise where the dominant theories of legal classification originate from and what they involve. In Part 4 I set out to debunk each of the theories' application to the law of delict as a private-law subject today. In the end I hope to show that a realist, analytical account of the classification of the law of delict would conclude that the South African law of delict is perhaps a hybrid of private

and public law and, as such, that it fulfils multidimensional purposes in the South African legal system and society.

2 Why the classification of delict matters

One might wonder why this argument about the classification of delict matters at all.

It matters firstly because we can cause a great deal of confusion for our students when we tell them that delict belongs to private law while it has clear public-law dimensions, as I am about to show. This should be reason enough for us to either scrap labelling delict as a private-law course in our textbooks, or at least to relax the absoluteness of this claim.

It matters, secondly, because an uncritical acceptance of delict's historical classification as an exclusively private-law discipline could lead us to miss the opportunity for appreciating the (humble) role that delict could play in transforming South African society in line with constitutional aspirations, fostering the responsible use of power, and working towards the collective wellbeing of our society. Those are surely not traditionally thought of as core functions of private law.

Instead of pledging allegiance to the past unreflectively, Klare, in his famous work on transformative constitutionalism and the creation of a new legal culture, encourages us to be "historically self-conscious" — realising that while we are constrained by the past in many ways and can learn much from the past, we can sometimes make empowering decisions now about what we want the future to look like. 1

1 Klare 1998 SAJHR 155-156.

3 The traditional classification of delict as a private affair

3.1 Overview

The classification of law into branches and subdivisions, and defining the strict contours of each, is a standard feature of introductory law courses in South Africa. Introductory textbooks to South African law tend to contain a similar message, which in broad strokes goes as follows. 2

2 See Du Plessis, Raboshakga & Kotze "Classification of South African Law" 236ff; Kleyn et al Beginner's Guide for Law Students 136ff; Meintjes-Van der Walt et al

In its most elementary form, law is either applicable nationally or internationally. At national level a distinction exists between substantive law (the hardcore and binding rules and principles that dictate human behaviour) and procedural law (the rules that lay down the steps that must be taken to prove a dispute in a court). Substantively law is divided into private law (loosely: the law regulating disputes where non-state actors interact with one another), public law (roughly: the law regulating the situation where the state is a party to a dispute), and other hybrid sub-disciplines (where a subject patently straddles more than one of the former categories). Those areas of substantive law are further divided into specific subjects. For example, private law is made up of the laws of family, persons, contract, succession, property, enrichment, and — of course most importantly for this discussion — delict.

A study of the history of the public/private divide not only shows us where its point of origin is for acontextual purposes, but also usefully shows how the rationale for that divide has changed over time through different phases of legal history, and why that divide might need to be rethought today. Following Visser, this historical exercise is thus done in the spirit of critical legal history,

to destabilise current certainties by reimagining the notions and structures of the legal system in terms of the categories of other times and other 'interpretative communities' 3

3 Visser "The Legal Historian as Subversive" 20.

In Visser's view,

if [legal history] is used to reveal the alternative structures and ideas that are possible, it can assist in breaking down the restrictive, artificial barriers which every legal system tends to develop. 4

4 Visser "The Legal Historian as Subversive" 19.

One of those artificial barriers, I would argue, is the public/private divide, especially insofar as it applies to the law of delict.

Against this backdrop, the historical discussion here disrupts the deterministic notion that the boundary lines drawn between public and private law have always existed in coagulated form and should thus continue to exist today. In a counterintuitive sense, the past is revisited here with the aim of disrupting the present, looking simultaneously forwards and backwards.

In what follows, I will briefly explain how the public/private divide has developed over time insofar as those developments are relevant for the purposes of understanding the place of the law of delict in the South African legal system today. The discussion here starts with Roman law, makes its way to the Netherlands, and then takes a ship to Cape Town, crossing the mountains, going inland.

3.2 Roman classification: The interests theory

In Justinian's Institutes 1 1 4 we are told that

The study of law is divided into two branches; that of public and that of private law. Public law is that which regards the government of the Roman Empire; private law, that which concerns the interests of individuals. 5

5 Sandars The Institutes of Justinian with English Introduction, Translation and Notes 6.

From the Institutes 4 1 – 4 5 it is apparent that the law of delict falls under private law in Romanist thought. The Digest 1 1 2 also clearly envisages a similar split along the lines of the interests of the commonwealth versus the interests of individuals. 6

6 See Mommsen, Kruger and Watson (eds) The Digest of Justinian 1; Scott The Civil Law 209.

The basic distinguishing characteristic between private and public law, at Roman law, then relates to the interests that are intended to be protected. Even though some may argue that the classification of Roman law was simply the manifestation of a desire to give scientific structure to a chaotic mass of previously amorphous laws, on a careful reading of the Institutes and the Digest, the public/private divide is born in Rome as a political separation between individualist and state-governance laws. To use the words of Ferreira, the Roman classification of law is therefore based on what we could call the "interest theory" of classification. 7

7 Ferreira 1990 SAPL 58.

When individual interests are at stake and both disputing parties survive to manage their broken relationships (whether caused by divorce, breach of contract, a property infringement, or the commission of a delict), the Romans recognised that the individuals concerned should have the freedom to do so with as little state interference as possible. This is why, for example, theft and robbery were regarded as delicts and not crimes; the state left it to the entangled litigants to deal with their own disharmony. 9

9 Inst 4 1 pr; D 13 1; Robinson "Public Law and Justinian's Institutes" 133.

robbery were thus regarded as "private" wrongs against property, or both property and the body respectively. This is a strange point for modern South African lawyers who intuitively regard theft and robbery as crimes, and thus public-law matters, even though those forms of conduct might incidentally also lead to delictual liability in the unlikely event that the criminals are caught and brought to justice. 10

10 For a recent take on the concurrence of criminal law and delict in a historical context, see Hoctor 2019 Fundamina 43ff.

When the public good was at stake or where the individuals did not both survive to manage their relationships, the Roman state actively interfered. 11

11 See generally Robinson 1998 De Jure 322.

The take-home messages from this discussion on the Romanist classification of law is firstly that the public/private divide related to the interests supposedly being protected and, secondly, that the law of delict was a private-law matter because it aimed to protect individual interests in property and personality. The public/private divide was received, at least in form, in the Netherlands.

3.3 Roman-Dutch classification: The actor theory

At Roman-Dutch Law, De Groot's Inleidinge endorsed the Romanist distinction between public and private law. 14

14 De Groot Inleidinge 1 2 25. See Lee The Jurisprudence of Holland by Hugo Grotius 13-15

law actors are non-state players. Therefore, following Ferreira, reference could be made to the "actor theory" of the public/private divide in this regard. 18

18 Ferreira 1990 SAPL 58.

With a slightly different approach, Voet's public/private divide seems to incorporate both the Roman interest theory and De Groot's actor theory. On the one hand, in this context, he writes that laws are fundamentally about the regulation of behaviour (hinting that the actor matters). 19

19 Voet 1 1 11.

The maintenance of a strict differentiation between state and non-state actor laws was conceptually mostly possible because of the social, political and economic dispensation of the time and space in which De Groot and Voet found themselves. Even though the state might have been able to enter into contracts and commit delicts, the law of state contracting and state delictual liability remained underdeveloped in this time. On the delictual front there appear to be vague and uncertain instances under which the Dutch government during this time of history could have been delictually liable to its citizens. Overall, the idea of state liability in the Netherlands was underdeveloped when compared to that in other jurisdictions. 21

21 Du Bois 2010 Tulane LR 147.

It could be said that the actor theory provided at least some type of reasonably solid justification for the public/private divide at Roman-Dutch law. The interest theory was, of course, still whispering in the background. Roman-Dutch law and its classification of law then made its way to the shores of the country that would eventually become known as South Africa, after which it took on a modified shape and character of its own.

3.4 South African classification

Roman-Dutch law became the hegemonic law of the Cape. 22

22 See Zitzke 2018 SAJHR 496-500.

the Union of South Africa, and later the Republic of South Africa, the foundations of law brought by European powers remained intact, even though they have been subject to further judicial and legislative amendments. 24

24 Zitzke 2017 Fundamina 193.

When the first African government took control of the historically tainted white supremacist state, the common law continued to exist, subject to compatibility with the supreme Constitution of the Republic of South Africa, 1996. 25

25 This position is made clear by a joint reading of ss 2, 8, 39(2), 172 and 173 of the Constitution.

Van Niekerk explains that over the years the substantive rules of Roman-Dutch law have changed significantly to meet the needs of a changing society in South Africa. She writes that despite the rather vast substantive changes to Roman-Dutch rules,

the scientific system of Roman law, including its divisions, concepts, maxims and underlying principles, has proved to be more enduring than its actual rules and norms. This has been evidenced by the continued existence, in varying degrees, of the scientific spirit of Roman law in countries which never experienced any practical reception of Roman law and in Continental legal systems which have been codified. It is therefore not surprising that the science of Roman law has likewise proved to be a fundamental and tenacious aspect of the South African legal system. 27

27 Van Niekerk 2011 SUUB Jurisprudentia 23, footnotes omitted.

Part of the surviving "divisions" and "concepts" of the Romanist tradition that Van Niekerk speaks about is the public/private divide. More specifically, for our purposes, delict's classification at Roman and Roman-Dutch law as a discipline of private law has also survived.

An early comprehensive book on the South African law of delict was written by McKerron in 1933. 28

28 McKerron The Law of Delicts in South Africa.

wrongs". 29

29 McKerron The Law of Delict 1.

A much clearer classification of delict as a private-law subject is done by Van der Merwe and Olivier. 33

33 Van der Merwe and Olivier Die Onregmatige Daad.

In the system of legal norms, the law of delict ought to find its home in the private law. The private law contains all the legal rules that are related to the relationship between individuals. The whole private law, and thus also the law of delict, is aimed at ordering private relationships between legal subjects through the recognition, consideration, and protection of mutual interests. 34

34 Van der Merwe and Olivier Die Onregmatige Daad 1. The original Afrikaans reads: "In die sisteem van regsnorme hoort die reg insake die onregmatige daad onder die privaatreg tuis. Die privaatreg omvat al die regsreëls wat op die verhouding van individue onderling betrekking het. Die ganse privaatreg, en derhalwe ook die reg insake die onregmatige daad, is daarop gerig om die private verhoudings tussen regsubjekte te orden deur die erkenning, afweging en beskerming van onderlinge belange."

Delict is then contrasted with criminal law, a discipline of public law, which the authors say is aimed at protecting the authority of the state. 35

35 Van der Merwe and Olivier Die Onregmatige Daad 2.

Neethling and Potgieter's classical work joins the beaten track in the first sentences of their book, citing Van der Merwe and Olivier as authority for the proposition that delict belongs to private law because of both interest- and actor-related concerns. 36

36 Neethling and Potgieter Law of Delict 3.

Finally we can consider Van der Walt and Midgley, who also show support for the classification of delict as a subject of private law. 37

37 Van der Walt and Midgley Principles of Delict par 1.

Since public and individual interests may overlap and even be identical, the same conduct may be both a crime and a delict. The basis of the distinction is differentiation of interests in vague and overlapping categories; logical and precise definitions are therefore not possible. To a large extent the prevailing conceptions of a community, and in particular the social, economic and political structure of a community, governmental policy and the historical features of the particular system of law at a given time will determine how forms of unlawful conduct are to be redressed and classified. 39

39 Van der Walt and Midgley Principles of Delict para 4.

Even though they are really talking about the boundary lines between crimes and delicts (which are significant boundaries because of the law of procedure and evidence), they allude to the fact that the interest theory is a murky academic puddle. After all, just as the public surely has an interest in the protection of individual rights, individuals also have an interest in being kept safe as members of a community.

As I will show below, it is not only the interest theory that is opaque. The actor theory similarly cannot be accurately used to support the private classification of delict. As explained more elaborately below, a legal realist would certainly call into question the traditional classification of delict as a purely private-law discipline.

4 The realist critique

4.1 Blueprint

On the legal-realist front I contend that the traditional classification of the law of delict as a part of private law fails to give a true, representational account of delict in practice. My critique here follows the American legal realist tradition to the extent that I am more interested in asking what the courts actually do with delict than what the textbooks have to say. 40

40 See Johnson et al Jurisprudence 159 ff.

Moreover, I am interested in asking what the "law jobs" of delict are, which is also a pivotal concern of some legal realists. 41

41 Johnson et al Jurisprudence 164 ff.

4.2 The actor detractor

The South African common law of delict very often mediates disputes where one non-state actor causes harm to another non-state actor in a culpable and wrongful manner. Examples include different types of accidents, fraudulent misstatements, assault, or defamation committed by one non-state actor against another. These certainly comfortably fit the private-law label according to the actor theory. However, delict in South Africa today also provides the legal machinery for securing the compensatory liability of the state for culpable and wrongful harm caused by its employees against non-state actors. In fact, some of the most interesting and influential cases in delict since democratisation have dealt with state liability, which has a long history in South African law. 42

42 For a more complete history on state liability and its intricacies see Okpaluba and Osode Government Liability 1-25.

After a period during which the state was largely exempt from delictual liability, some courts in South Africa slowly introduced the concept of state liability. 43

43 Boonzaier 2013 SALJ 331-332.

similarly provides that the state can be sued for the delicts of public servants as if the state were a natural-person employer. It says:

Any claim against the State which would, if that claim had arisen against a person, be the ground of an action in any competent court, shall be cognizable by such court, whether the claim arises out of any contract lawfully entered into on behalf of the State or out of any wrong committed by any servant of the State acting in his capacity and within the scope of his authority as such servant.

The way that South African courts have understood section 1 of the State Liability Act is that the common law of delict applies to the state as it would to a dispute between two non-state actors, perhaps with a few differences in nuances on the rules. In most state liability cases in South Africa today, reference is not made to the Act at all — the substance of the common law of delict is usually implicitly accepted as the appropriate area of law regulating the dispute. On a strict interpretation of the actor theory, the issue of state liability fits the public-law label because the dispute is between the state and its subject. Due to the fact that the same structure of rules is used in a case of state liability as would be used in a case of non-state actor liability, there are no reasonable prospects of conceptually divorcing state liability from any meaningful discussion on the law of delict today. At first glance, then, we see the crumbling of the actor-theory justification for labelling delict as a subdivision of private law.

A conscientious defender of the private-law label for delict would be quick to tell us that the actor theory should be modified in state liability cases so that it is assumed that the state is acting on a level equal to the individual victim concerned. The argument would go that in traditional public-law disputes (constitutional review, administrative action and so forth) the state is acting from a position of power, indeed a position of inequality compared to its subjects. Delicts committed by the state, they would say, are always committed by individuals representing the state; thus the dispute is essentially between individuals and not between an individual and the abstract force that is the state. Ferreira refers to this belief as the "power or subordination theory", 47

47 Ferreira 1990 SAPL 57-58.

4.3 The power scour

If we take the idea of the power theory seriously as explained directly above, public law does not exist at all. This would be so because the government cannot exist without the people running it and thus all disputes are

essentially between individuals. It is a rather bizarre fiction to assume that the state has some special elevated power when passing abusive legislation or when an unlawful administrative decision is made by a corrupt government official (supposedly conundrums for public law) but that a police officer wrongfully arresting and torturing a suspect stands on contrastingly equal footing with that victim (apparently a problem for private law).

To illustrate my point about the objective lack of equality between state-functionary delictual wrongdoers and their victims, we could consider a few cases that relate to the doctrines of wrongfulness and vicarious liability in the South African law of delict.

On the doctrine of wrongfulness, the issue of state liability for negligent omissions is particularly relevant. Wrongfulness in South African law essentially questions whether the "legal convictions of the community", read through a constitutional lens, regard the alleged wrongdoer's conduct as acceptable or not, given the alleged wrongdoer's duties to respect the rights of others and not to cause harm, and the overall reasonableness of imposing liability. 48

48 Loureiro v iMvula Quality Protection 2014 3 SA 394 (CC) para 53.

In Van Duivenboden the police had special knowledge of a specific gun owner's propensity for unreasonable violence. Even though the police bore constitutional and statutory duties to confiscate that gun owner's firearm, they negligently failed to do so. On a fateful day the gun owner went on a rampage and shot, among other people, a neighbour called Van Duivenboden. The relevant legal issue for this discussion was whether the state's failure to have confiscated the firearm was wrongful. In this regard

the court held that the infringement of a constitutional right of the victim invariably triggers the need for the state's accountability. 52

52 Van Duivenboden para 20.

In the famous earlier case of Carmichele v Minister of Safety and Security 55

55 2001 4 SA 938 (CC) (hereafter Carmichele).

Not wholly dissimilar to Carmichele is the case of Van Eeden v Minister of Safety and Security, 57

57 2003 1 SA 389 (SCA) (hereafter Van Eeden).

to the state's negligent failure to keep the gates locked. A factor heavily weighing in favour of a finding of wrongfulness there was the state's power that it held over the dangerous criminal and the concurrent responsibility to keep the danger from the public. 58

58 Van Eeden para 24.

The same theme is apparent in Minister of Safety and Security v Hamilton, 59

59 2004 2 SA 216 (SCA) (hereafter Hamilton).

This principle of victims' vulnerability has also played out in the context of the infliction of pure economic loss by the state, where a material consideration is usually whether the victims could have protected themselves from the harm caused by the state — implying that more vulnerable individuals would be more prone to receiving legal protection in this regard. 64

64 See Country Cloud v MEC, Department of Infrastructure and Development 2015 1 SA 1 (CC) para 51 ff; Steenkamp NO v Provincial Tender Board, Eastern Cape 2007 3 SA 121 (CC) para 42.

Now the power theory intends to assure us that in these cases the state was acting on an equal footing to that of the victims. This suggestion cannot be supported. In all the scenarios canvassed above, the state functionaries concerned had powers that the victims did not have. Sometimes the victims approached the state for assistance, respecting and needing the state's authority precisely because the victims could not prevent the impending harm that they were about to endure. In all these cases, though not articulated explicitly in these terms, the power imbalance between the

victims and the state was a fundamental consideration in holding the state delictually liable for its omissions. Whether we follow the classical or modified version of the actor theory, delict thus takes on a public-law function when state liability is imposed.

In the doctrine of vicarious liability we see a similar theme arising. For the state to be held vicariously liable for the misdeeds of its employees, there must be a valid employment relationship; the employees must have committed a delict; and the employees must have been acting in the course and scope of their employment when committing the delict. 65

65 Boonzaier 2013 SALJ 330-331.

In the cases of K v Minister of Safety and Security 66

66 2005 6 SA 419 (CC) (hereafter K).

In summary, whether we are dealing with the determination of the wrongfulness of negligent state omissions or the vicarious liability of the state for the intentional positive conduct of its functionaries, the vulnerability of the victim in relation to the state (its functionaries) and the trust that the victim placed in the state (its functionaries) are significant considerations in establishing the delictual liability of the state. Vulnerability and trust, as they play out in wrongfulness and vicarious liability respectively, are concepts of

power. Concepts of unequal power, to be exact. The view that the law of delict regulates disputes between equals in the context of state liability must surely be incorrect.

At this point I have said a lot about the state's power dynamic vis-à-vis its subjects, highlighting special modulations to the rules of delict that apply to the state. An unintended conclusion that could be drawn from this discussion thus far could be that the state has its own special rules for delictual liability that stand completely isolated from the rules of delict as applied to non-state actors. However, this conclusion would be unfounded.

Firstly, we are dealing with internal modulation in the law of delict. There is no truly separate scheme for state liability in South African law. Whether we should have such a separate scheme for state liability is a discussion for another day. 71

71 For a specific argument about why we might need to rethink the law on state liability as we know it see Wessels 2019 Stell LR 361.

Secondly, the core themes of vulnerability and trust also feature in the determination of the liability for non-state wrongdoers. The actor theory, insofar as it plays out as questions of equal versus unequal power, also does not provide much joy in the context of explaining delictual disputes among non-state actors. The fundamental idea is that even though our constitutional democracy aspires to equality, inequalities between people still exist. For example, many of the rules related to the determination of the wrongfulness of negligent harm-causing omissions perpetrated by non-state actors also pivot on the question of unequal power. Two well-known examples will suffice to illustrate this point.

The first example is where the non-state wrongdoer controls dangerous property and a duty arises for that wrongdoer to take reasonably practicable steps to prevent reasonably foreseeable harm to victims. 72

72 The most pertinent examples from the Appeal Court are Za v Smith 2015 4 SA 574 (SCA) para 20-21; Minister of Forestry v Quathlamba 1973 3 SA 69 (A) 80H-82E and Regal v African Superslate 1963 1 SA 102 (A) 111D–H. Arguably another example can be found in Pro Tempo Akademie v Van der Merwe 2018 1 SA 181 (SCA) (hereafter Pro Tempo Akademie) para 20-21.

A case that straddles both examples is Pro Tempo Akademie. A school for learners with disabilities placed metal guiding rods in the ground next to newly planted saplings. One learner tried to stand on the rod, slipped and was impaled, suffering terrible bodily injuries. On application of the dangerous-property and the prior-conduct rules, the school's failure to take reasonable measures to protect learners from the harm imposed by the rods was held to be wrongful. With the dangerous-property rule, the school bore special knowledge of and had control over the risks posed by the rods, which is why its duty of harm prevention arose. Similarly, under the prior-conduct rule, the mere insertion of rods in gardens is not wrongful but a subsequent failure to ensure that the risks of harm do not materialise is wrongful. In my view, the rationale for these rules relates to the relative power imbalance between the wrongdoer and the victim. The wrongdoer has special knowledge or control over risks that the victim does not have, which places the wrongdoer in a position of power relative to the victim.

In the application of both of these rules we see a similar consideration of balancing the unequal power dynamic between the non-state wrongdoer and the victim as we did in the discussion on state liability. Perhaps the law of delict in its entirety has an important role to play in ensuring that those in power — both public and private — are held accountable when that power is not used responsibly. In this way the law of delict serves a potentially important function in ensuring the achievement of equality as demanded by the Constitution in its preamble, read with section 9.

In short, in terms of a legal realist view the actor theory in its classical form and the modified version as the power theory fail to provide any convincing reasons for the labelling of the law of delict as a subject of private law. This still leaves the interest theory.

4.4 The interest twist

4.4.1 Crimes versus delicts

Now that we know that the actor and power theories are potentially not viable to accurately capture what the law of delict does, we can ask whether the law of delict aims to protect interests that are uniquely private instead of public.

The typical treatment of this issue in major delict works is cast as the importance of the distinction between criminal law (the archetype of public

law) and the law of delict (its private-law rival). 74

74 Van der Walt and Midgley Principles of Delict para 4; Neethling and Potgieter Law of Delict 7-8; Van der Merwe and Olivier Die Onregmatige Daad 1; Boberg The Law of Delict 1 and McKerron The Law of Delict 1-2.

Popular criminal-law textbooks convey the same message that criminal law protects the so-called public interest while delict is concerned with private interests. 75

75 Burchell Principles of Criminal Law 3 and Hoctor Snyman's Criminal Law 4.

Typically it is said that the state is the dominus litis in criminal litigation while the state will not be the dominus litis in a delictual dispute. 77

77 Hoctor Snyman's Criminal Law 4.

Title to sue aside, perhaps the combination of the rules of procedure, the law of evidence, and the consequences for liability for delict versus criminal law paints a different picture about the interests that the two subject areas

serve to protect. The Criminal Procedure Act applies to criminal disputes while various rules of different courts regulate civil procedure. 80

80 See generally Harms Civil Procedure in the Magistrates' Courts and Harms Civil Procedure in the Superior Courts.

To see why the criminal/delict split is one that can be made while the supposed concurrent public/private should not necessarily be made, we must briefly survey the functions of the law of delict and criminal law as understood by South African legal theorists.

Loubser and Midgley's textbook is the only South African book on delict that attempts in a meaningful way to think about the social role of the law of delict. For Loubser and Midgley the law of delict serves the functions of ensuring interpersonal corrective justice through compensation, the protection of the legal interests of victims, promoting social cohesion and a sense of social order, instilling values including those related to personal responsibility, providing a vehicle through which competing interests are mediated, the deterrence of harm and, in some instances (especially where social insurance regimes are involved), the spreading of losses. 82

82 Loubser and Midgley (eds) The Law of Delict in South Africa para 1.5.

This should be contrasted against the functions of criminal law. For Hoctor and Snyman the ultimate aim of criminal law is to impose a sanction by means of punishment. 83

83 Hoctor Snyman's Criminal Law 9 ff.

From the above we could conclude that the key overlapping functions of delict and crimes relate to their concern with protecting certain legal interests, ensuring some type of mechanism for corrective justice in the case of unlawful interferences with those legal interests, and the deterrence of unlawful interferences with the interests of others. While Hoctor and Snyman do not mention the maintenance of social cohesion and order, the instilling of values like responsibility, or mediating competing interests, it should be trite how criminal law also takes on these roles alongside delict.

The divergence between criminal law and delict seems to lie in (1) the nature of the corrective justice obligations owed by criminals compared to delictual wrongdoers, (2) criminal law's uniquely preventative function, (3) the reformation of perpetrators of wrongs, which does not seem to feature in South African delict theory as canvassed above, and (4) delict's unique role in loss spreading (in some cases of social insurance schemes).

4.4.2 Loss spreading and the public interest

As a starting point in dealing with these divergences, the fourth distinction quickly takes us to fifteen-love for delict: The spreading of losses through statutory compensation schemes like the Road Accident Fund surely looks after the public's interests. It aims to ensure adequate protection for road accident victims while also saving road wrongdoers from financial ruin, thus striving to protect all of us who participate daily in South Africa's traffic Hunger Games.

The other three notional distinctions between delicts and crimes certainly show that the two are distinct fields of study. However, the distinction is not absolute. And the distinction probably has less to do with public versus private interests than we might be tempted to think.

4.4.3 Corrective justice and reformation

Back to the first distinction listed above: The most common logical end of a common-law delictual dispute is the paying of damages by the wrongdoer to the victim. However, the law of delict is not concerned only with compensation. 89

89 A point also emphasised by Du Bois 2000 Acta Juridica 22.

One line of reasoning could be that the issuing of an order for retraction and apology of a defamatory statement could involve a first step towards the rehabilitation of delictual wrongdoers (in the sense that the wrongdoers would have to stop for a moment and reflect on their actions and express an acknowledgement of wrong, which is generally not required in a criminal context, laying the foundation for true repentance) and, more importantly,

the restoration of peace between the wrongdoers and victims. The notion of restoring peace between wrongdoers and victims is also reflected in more recent criminal law practice where the principles of restorative justice are becoming increasingly important, in South Africa and beyond. 93

93 Explained in detail by Burchell Principles of Criminal Law 5.

With that said, the restoration of peace between the wrongdoer and victim ultimately also results in the restoration of peace between the wrongdoer and the cosmos. While one brand of the Eurocentric worldview regards individuals as atomistic with duties of interpersonal amends between the wrongdoer and the victim alone, an African worldview could involve viewing a delict as a disruption of social order more expansively understood, on account of the fact that all individuals find themselves in an interwoven web of obligations towards others. 94

94 See Coetzee "Particularity in Morality and its Relation to Community" 321-337.

If we allow an African worldview to inform our understanding of harm-causing, this then dilutes the idea of delict as "corrective justice between two parties" juxtaposed against criminal law as "corrective justice between the wrongdoer and society as a whole". This interpretation of African philosophy also appears to be supported by customary-law commentators who observe that no clear distinction between "crimes" and "delicts" exists in various customary-law systems. 96

96 Hoctor 2006 Fundamina 170.

Interestingly, the spirit of the customary-law approach to the public/private divide is also reflected in the strong horizontality provisions in our Constitution, like sections 8, 39(2) and 173. While constitutional rights are traditionally thought of as public-law interests, these rights now infiltrate South African private law (and delict) discourse very strongly. We need only make passing reference to the impactful case of Carmichele in this regard.

This means that both criminal law and delict can serve the function of promoting constitutional values and rights, simultaneously protecting individuals and the cosmos harmoniously.

The corrective-justice fusion between criminal law and delict is further highlighted by the fact that section 300 of the Criminal Procedure Act provides for the possibility of ordering the payment of damages in a criminal trial by a wrongdoer to a victim to ensure that corrective justice is done. Even though some could regard this as an exceptional instance of an incidental statutory delict (thus falling outside of the ambit of criminal law), they cannot simultaneously highlight the Criminal Procedure Act as a defining characteristic of what separates crimes from delicts and sever parts of the Act to maintain a conceptual difference between the two. A plain reading of this provision in the Act indicates that criminal law and corrective justice in the sense of interpersonal compensation in the South African context are not mutually exclusive.

4.4.4 Prevention and deterrence

The issuing of an interdict as an attempt at securing reparations for a civil wrong can involve the actual prevention of harm, which is traditionally thought of as being an exclusive function of criminal law. The conscientious defender of the public/private divide might shout that criminal law's preventative function through imprisonment is aimed at preventing harm to unsuspecting victims (other than the original victim), while delict's interdicts are narrowly focussed on preventing harm between the wrongdoer and the original victim only. Though a valid point, one must not lose sight of the fact that prevention and deterrence walk side-by-side on a tightrope. The delict wrongdoer who is interdicted to refrain from causing harm to one specific victim will surely be deterred from causing similar harm to another unsuspecting victim, lest they face similar legal action. Admittedly, criminal law's preventative function is certainly more extreme than that of delict. But there is a degree of overlap.

4.4.5 Final clarity

We have seen that interpersonal corrective justice, cosmic corrective justice, prevention, deterrence and reformation feature (in varying degrees) as functions in both delict and criminal law. Overall, it is surely correct to say that criminal law has the potential to have stronger "public-law moments" in terms of Western concepts of corrective justice, prevention, deterrence, reformation and long-term consequences for the wrongdoer. But that does

not mean that the picture painted is that criminal law is inescapably public as opposed to private.

Thus, to conclude our discussion on the interest theory, the nuanced differences on the conditions for liability and the consequences of each branch of law cannot necessarily be said to be uniquely or specially public or private. In sum, an analytically, legal realist reading of the delict/criminal law divide leaves little of the interest theory too. The interest theory bows and leaves left stage.

5 Conclusion: Towards hybridity?

The actor theory cannot be used to justify labelling delict as a private-law subject because of the prominence of state-liability jurisprudence under the modern South African law of delict, surely enhanced by the constitutional value of state accountability. The power theory is also an inadequate justification of delict's traditional classification because the levelling of the field between victims on an unequal footing towards their wrongdoers is one of the currently unarticulated functions of the South African law of delict. This has a significant constitutional flavour of substantive equality. The interest theory also fails to convince us that delict serves particularly private interests when compared with criminal law. Surprisingly perhaps, delict fulfils preventative, rehabilitative and restorative functions not dissimilar to criminal law and its aims of punishment. Indeed, both of these areas protect private and public interests as traditionally understood. This is rather apparent in the constitutional era where the bill of rights reaches into all areas of law. Perhaps then it would be more accurate, on an analytical realist level, to describe the extant law of delict as a hybrid of public and private law.

In the end, even though delict certainly can protect traditionally "private" interests, we have also seen how delict can be said to have a much stronger "public" function than traditional delict scholarship admits. As I mentioned at the start, this could cause confusion to students who are told to think about delict in exclusively privatist terms while simultaneously observing a constitutional tension pulling in the opposite direction. Furthermore, an uncritical acceptance of delict's historical classification as an exclusively private-law discipline could lead us to miss the opportunity for appreciating the (humble) role that delict could play in transforming South African society in line with constitutional aspirations, fostering the responsible use of power and working towards the collective wellbeing of our society. Finally, the argument presented here shows that legal historians do not have to pledge

unthinking allegiance to the past for the sake of upholding tradition. Taking legal history seriously may, in fact, open us up to thinking much more reflectively about the present and the future. And that is what the critical, transformative study of law and its history is surely about.

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List of Abbreviations

CC Constitutional Court

SAJHR South African Journal on Human Rights

SALJ South African Law Journal

SAPL Southern African Public Law

SCA Supreme Court of Appeal

Stell LR Stellenbosch Law Review