The concurrence of breach of contract and delict in a constitutional context

Abstract

In this article, we tackle the legal question of the concurrence of a breach of contract and a delict through the lens of the Constitution of the Republic of South Africa, 1996. We begin by outlining the approach of the judiciary and reiterating the inconsistency between the treatment of traditional subjective interests (in other words physical harm to person and/or property) and purely economic interests (in other words non-physical harm). We then highlight the essential classical liberal premise (as adjusted by 20th-century reliance theory) that appears still to underpin the approach of our courts. Indeed, in the context of pure economic loss, it is said to be challenging to establish an independent delict in terms of the accepted ‘independent delict’ test. In this respect, we identify the delictual element of wrongfulness and in particular, the judiciary’s tendency to treat the risk of indeterminate liability and the anti-circumvention argument mechanically as overriding factors in the application of the boni mores test. We argue that this tendency is inconsistent with the broader constitutional movement away from classical liberalism and toward wel-farism where values of human interdependence and solidarity must carry more weight. In more concrete terms, neither of these factors per se can automatically lead to a finding that the defendant did not have a legal duty in delict. At the same time, we maintain that the approach to concurrence in the context of physical harm via the application of the ‘independent delict’ test (as constitutionally informed) fosters a well-reasoned principled approach that enables the weighing up of pertinent policy considerations as required in the post-apartheid era. In the end, therefore, we aver that this (constitutionalised) ‘independent delict’ test ought to apply likewise to physical harm and pure economic loss where there is also a breach of contract. However, since the causing of pure economic loss is prima facie lawful (while positive conduct causing physical harm to person or property is prima facie wrongful), an important caveat in relation to pure economic loss is that the element of wrongfulness must be the function of the balancing exercise contemplated by the boni mores test, where the risk of indeterminate liability or the anti-circumvention argument may be relevant factors but cannot, without more, supersede the enquiry.