Dutton - Medical Malpractice in SA

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Medical Malpractice in South African Law
interplay: the hand of history, our ideas of morals and justice, the convenience of
administering the rule and social ideas as to where the loss should fall. Hence, the incidence
and extent of duties are liable to adjustment in the light of the constant shifts
and changes in community attitudes.’ 23
The Constitution is the supreme law of the land, and no norms or values that
are inconsistent with it can have legal validity. When applying the Ewels test
of the ‘legal convictions of the community,’ the courts are now bound to apply
the norms and values of our society as reflected in the Constitution. 24 This has
the effect of making the Constitution a system of objective, normative values
for legal purposes, and where an infringement of an entrenched right in terms
of the Constitution has occurred, the courts ‘have a particular responsibility in
this regard and are obliged to “forge new tools” and shape innovative remedies,
if need be, to achieve that goal.’ 25
4.4 The ‘duty of care’
Our courts and commentators on occasion refer to the notion of a ‘duty of care’.
This concept is foreign to our law. The concept of the ‘duty of care’ is cast in
the language of the English law. The principles underlying the South African
law are different, and the differences in the legal structure between English and
South African law must be clearly understood in order to avoid confusion. 26 The
concept of the ‘duty of care’ in English law amalgamates considerations of fault
23
The nature of the value judgment to be made by a court in determining whether negligent
conduct should give rise to liability is put as follows by Boberg The Law of Delict vol 1 Aquilian
Liability 2 imp (Juta 1984) at 33: ‘At the root of each of these crystallised categories of wrongfulness
[a reference to categories of acts or omissions giving rise to the damage alleged, but
which have, in effect, been subsumed within broad principles since the work was written] lies
a value judgment based on considerations of morality and policy — a balancing of interests
followed by the law’s decision to protect one kind of interest against one kind of invasion
and not another. The decision reflects our society’s prevailing ideas of what is reasonable
and proper, what conduct should be condemned and what should not — the boni mores, or, as
Rumpff CJ put it in Minister of Polisie v Ewels 1975 (3) SA 590 (A), the legal convictions of the
community.’
24
See e g: Carmichele v Minister of Safety and Security (Centre for Applied Legal Studies Intervening)
2001 (4) SA 938 (CC) at [33]; Fose v Minister of Safety and Security 1997 (3) SA 786 (CC).
25
Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) at [69]. In Minister of Law and Order
v Kadir 1995 (1) SA 303 (A) at 318E–H, the Court held that ‘… conclusions as to the existence
of a legal duty in cases for which there is no precedent entail policy decisions and value judgments
which “shape and, at times, refashion the common law [and] must reflect the wishes,
often unspoken, and the perceptions, often dimly discerned, of the people” (per M M Corbett
in a lecture reported sub nom ‘Aspects of the Role of Policy in the Evolution of the Common
Law’ (1987) SALJ 104 at 67). What is in effect required is that, not merely the interests of the
parties inter se, but also the conflicting interests of the community, be carefully weighed and
that a balance be struck in accordance with what the Court conceives to be society’s notions
of what justice demands’; H v Fetal Assessment Centre 2014 ZACC 34 esp at [13].
26
With potentially dire consequences: see, e g Hawekwa Youth Camp and Another v Byrne 2010 (6)
SA 83 (SCA) at [21] to [22].