Justice Froneman and Transformative Delict

Abstract

In this article the Constitutional Court judgments of Justice Johan Froneman are analysed with the aim of assessing his contribution to the South African law of delict. It is argued that traditional delict scholarship in South Africa is common-law centric in the sense that the common-law rules and principles that regulate the discipline are regarded as "delict proper" while constitutional considerations, statutes, and the customary law of injuries are effectively side-lined as "delict improper". Justice Froneman's approach to adjudicating delictual (or delict adjacent) matters has the effect of de-centring the common law's hegemony in our discipline. Instead, Froneman encourages those who work with delict to: Infuse it with constitutional spirit continuously; respect the legislature's important democratic role that should not be forced into common-law categories of thinking; take up the challenge of Africanising the common law through a healthy exchange with customary law; and see delict as a discipline that has restorative-justice potential. In this contribution, it is argued that these common law de-centring principles in Justice Froneman's delictual jurisprudence is transformative and critical in nature. As such, those seeking to merge the basic tenets of transformative constitutionalism, South African critical legal studies, and legal practice, may find great value in Froneman's delictual jurisprudence.