LAW OF DELICT (2019)

AQUILIAN ACTION

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 Amod v Multilateral Motor Vehicle Accidents Fund
1999 (4) SA 1319 (SCA)

Requirements of defendant’s action (Santam Bpk v Henery):

 The claimant must establish that the deceased had a duty to

support the defendant;

 It had to be a legally enforceable duty;

 The right of the defendant to such support had to be worthy of

protection by the law; and

 The preceding element had to be determined by the criterion of

the boni mores (policy considerations).

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 Amod continued…
[23] I have no doubt that the boni mores of the community at the time when the
cause of action arose in the present proceedings would not support a conclusion
which denies to a duty of support arising from a de facto monogamous marriage
solemnly entered into in accordance with the Muslim faith any recognition in the
common law for the purposes of the defendant’s action; but which affords to the
same duty of support arising from a similarly solemnised marriage in accordance
with the Christian faith full recognition in the same common law for the same
purpose; and which even affords to polygamous marriages solemnised in
accordance with African customary law exactly the same protection for the same
purpose ... The inequality, arbitrariness, intolerance and inequity inherent in such a
conclusion would be inconsistent with the new ethos which prevailed on 25 July
1993 when the cause of action in the present matter commenced. The boni mores
of the community would at that time support the approach which gave to the duty
of support following on a de facto monogamous marriage in terms of the Islamic
faith the same protection of the common law for the purposes of the defendant’s
action, as would be accorded to a monogamous marriage solemnised in terms of
the Christian faith.
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 Amod continued…

Accordingly, the SCA was prepared to accept that a legally

enforceable duty of support existed between the appellant
and the deceased which was worthy of protection by the
law.

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 Dendy v University of Witwatersrand 2007 (5)
SA 382 (SCA)

The plaintiff, Dendy, was an unsuccessful applicant for promotion who

alleged that his constitutional right to dignity and his common-law right
to dignity had been infringed by the conduct of the University of the
Witwatersrand.

Dendy alleged that the failure of the committee to appoint him was the
result of a series of procedural irregularities which had the
consequence of injuring his dignity, and that the failure by the
university to provide him with reasons for the decision and the minutes
of the meeting at which the decision had been taken had insulted and
humiliated him, and that any reasonable person in his position would
have felt insulted and humiliated.

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 Dendy continued…

Dendy had submitted that the high court should develop the common
law in terms of section 39(2) of the Constitution to cover the facts
pleaded.

Ponnan J acknowledged that the courts were under a constitutional duty

to develop the common law in appropriate instances and referred to the
two-stage test set out in the Carmichele case regarding the
development of the common law in terms of section 39(2) of the
Constitution. However, in applying the test, Ponnan JA reached the
following conclusions:

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 Dendy continued…

[24] An integral part of the first enquiry, it seems to me, is to enquire in any given
matter whether the common law is deficient, and, if so, in what respect. The
appellant is in essence a disgruntled applicant for promotion. He complains of a
range of procedural irregularities in the assessment of his candidacy, but not of the
resultant decision. His further complaint relates to the failure of the university to
furnish him with reasons for his non-appointment or to supply him with copies of the
minutes of the meeting at which the decision was taken. Those complaints could
have been vindicated respectively, by the remedies of review, or a relatively simple
application to compel production of the documentation and the reasons sought.
Those remedies were available to the appellant and on his own version he was aware
of them, yet he chose to forgo them. Instead he seeks to fashion a novel claim,
which he contends is mandated by the Court’s obligation to develop the common law
in terms of section 39(2) of the Constitution.

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 Dendy continued…

It bears noting that the novelty is entirely self-created, the appellant having consciously
chosen to eschew a range of remedies that have traditionally served to vindicate the
complaints encountered here. Those remedies in one form or another were available to
the appellant at all stages of the process. The common law, which has not been shown
to be wanting, was therefore broad enough to provide the appropriate relief in this case.
The appellant elected instead to saddle what has proven to be an unruly horse. It
therefore in this instance could hardly be contended that the common law was deficient.
Much less, in any specific respect. It follows in my view that the first postulated enquiry
must yield a negative response. In any event, in his formulation of the development
contended for, the appellant accepts that the alleged violation of a plaintiff’s
constitutionally entrenched rights must be hurtful, humiliating or insulting from both an
objective and a subjective standpoint. Like Farlam JA, I am of the view that the
appellant fails at the objective threshold. He thus fails to bring himself within the ambit
of his own formulation of the development contended for. It therefore follows that this
issue warrants no further consideration.
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