Dutton - Medical Malpractice in SA

Unlawfulness (Wrongfulness) 35
and policy. That is not the South African approach. 27 In our law, the enquiry into
the existence of a legal duty is distinct from the negligence enquiry. 28
In McIntosh v Premier, Kwazulu-Natal, 29 the Supreme Court of Appeal cautioned
against the improper use of the expressions ‘duty of care’, ‘duty’ and ‘legal duty’:
‘But the word “duty”, and sometimes even the expression “legal duty”, in this context,
must not be confused with the concept of “legal duty” in the context of wrongfulness
which, as has been indicated, is distinct from the issue of negligence. I mention this
because this confusion was not only apparent in the arguments presented to us in this
case but is frequently encountered in reported cases. The use of the expression “duty of
care” is similarly a source of confusion. In English law “duty of care” is used to denote
both what in South African law would be the second leg of the inquiry into negligence
and legal duty in the context of wrongfulness. As Brand JA observed in Trustees, Two
Oceans Aquarium Trust at 144F, “duty of care” in English law “straddles both elements
of wrongfulness and negligence”.’
Although our courts have preferred the expression ‘legal duty’ to that of ‘the duty
of care’ 30 the phrase ‘legal duty’ is itself potentially ambiguous (as is apparent
from the above passage in McIntosh), in that it may be taken to refer either to
the second leg of the enquiry in Kruger v Coetzee, 31 and thus be misunderstood
as referring to this aspect of negligence; or to the enquiry into unlawfulness. It
is therefore submitted that, in dealing with this semantic bramblebush, catchphrases
of this nature should be treated with caution, and the underlying legal
structure constantly kept in mind and clearly expressed.
4.5 Unlawfulness and fault 32
There would be no need for the requirement of unlawfulness if the law was prepared
to impose liability for any harm to another which was caused negligently
or intentionally. But this attractive simplification would result in the net being
cast too wide, and would accord neither with reality nor with policy, 33 and our
courts have emphatically rejected the notion. 34 For more than three decades,
27
The misuse of the phrase ‘duty of care’ is a particularly well-entrenched example of the perils
of importing foreign legal principles without an understanding of their proper meaning. See,
in this regard, K v Minister of Safety and Security 2005 (6) SA 419 (CC) paras 34–35; Country
Cloud Trading CC v MEC, Department of Infrastructure Development 2014 (2) SA 214 (SCA) at [30].
28
Knop v Johannesburg City Council 1995 (2) SA 1 (A) at 27.
29
2008 (6) SA 1 (SCA) at [12]; see also, recently: Country Cloud Trading CC v MEC Department of
Infrastructure and Development 2014 (2) SA 214 (SCA); H v Fetal Assessment Centre [2014] ZACC
34 at [4].
30
Knop v Johannesburg City Council 1995 (2) SA 1 (A) at 27.
31
1966 (2) SA 428 (A) at 430 E–F.
32
For a discussion of Fault, see ch 6 below.
33
Trustees, Two Oceans Trust v Kantey and Templar 2006 (3) SA 138 (SCA) at [10]; See also Boberg
The Law of Delict vol 1 Aquilian Liability 2 imp (Juta 1984) at 30.
34
See esp Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) at [12]:
‘Negligence, as it is understood in our law, is not inherently unlawful — it is unlawful, and
thus actionable, only if it occurs in circumstances that the law recognizes as making it
unlawful’; Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA
2006 (1) SA 461 (SCA) at [12]: ‘But the fact that an act is negligent does not make it wrongful,