Causation and Medical Negligence

Vonnisbesprekings/Case notes
Judicial recognition of substandard medical treatment in South African

public hospitals: The slippery slope of policy considerations and
implications for liability in the context of criminal medical negligence
Pieter Carstens 168
The evolution of the operation of the doctrine of estoppel in public

law and interpretative methodology in RPM Bricks (Pty) Ltd v City
of Tshwane Metropolitan Municipality 2007 9 BCLR 993 (TPD)
George Devenish 181
The socio-economic nature of section 24(b) of the Constitution –

some thoughts on HTF Developers (Pty) Ltd v Minister of
Environmental Affairs and Tourism (HTF)
Loretta Feris 194
The challenge of legal pluralism

Gardiol van Niekerk 208
Judicial recognition of substandard medical
treatment in South African public hospitals:
The slippery slope of policy considerations
and implications for liability in the context of
criminal medical negligence
S v Tembani 2007 1 SACR 355 (SCA)
Introduction
In Van Wyk v Lewis 1924 AD 438 444, the South African locus classicus on
medical negligence, Innes CJ observed that the ordinary medical
practitioner should exercise the same degree of skill and care, whether
he carries on his work in the town or the country, in one place or
another, and that the fact that several incompetent and careless
practitioners happen to settle at the same place cannot affect the
standard of diligence and skill and care which local patients have the
right to expect. This sentiment was also echoed by the older writers on
medical law (see Gordon, Turner and Price Medical jurisprudence (1953)
112) who opined that it cannot possibly make any difference to the skill
and care required of a medical practitioner in himself, whether he
practises in Cape Town or on some remote farm on the edge of the
Kalahari desert. In view of the foregoing, it was thus trite law in South
Africa for many years that the so called ‘locality of medical practice’
bore no influence on the assessment of medical negligence (criminal
medical negligence or civil medical negligence – it is to be noted that the
test for criminal and civil medical negligence is the same: the only
difference lies in the onus of proof) (see Carstens and Pearmain
Foundational Principles of South African Medical Law (2007) 637).
Although several cases of medical negligence were decided by the courts
since 1924, the applicability or not of the ‘locality rule’ has not yet been
conclusively revisited by the judiciary and the viewpoint of Innes CJ,
Vonnisbesprekings/Case notes 169
specifically in view of vastly improved medical facilities and the exchange

and mobility of present information technology, is still generally accepted
by the courts and our writers (see Dube v Administrator Transvaal 1963
4 SA 260 (W) 266; Blyth v Van den Heever 1980 1 SA 191 (A) 193D; S v
Kramer 1987 1 SA 887 (W) 893; Barlow ‘Medical negligence resulting in
death’ 1948 THRHR 117; Gordon, Turner and Price Medical jurisprudence
(1953) 112; Strauss and Strydom Die Suid-Afrikaanse geneeskundige reg
(1967) 268-270; Strauss Doctor patient and the law (1991) ; Claassen and
Verschoor Medical negligence in South Africa (1992) 18; Strauss Medical
law in South Africa: International encyclopaedia of laws (ed
Blanpain)(2007) 95; contra Collins v Administrator Cape 1995 4 SA 73 (C
); Carstens ‘ The locality rule in cases of medical negligence’ (1990) De
Rebus 421; Carstens and Pearmain Foundational principles of South
African medical law (2007) 636–638).
However, after the judgment in S v Tembani 2007 1 SACR 355 (SCA),
it is apparent that the big divide between public and private health care
in South Africa (private hospitals and public hospitals) with reference to
medical infrastructure, resources, competent medical staff and other
‘South African medical realities’, will have a decided influence on the
question of whether the locality of a medical practice is to be considered
as a factor when assessing criminal medical negligence, specifically in the
context of medical care in public hospitals. It is to be noted that,
although Tembani was principally decided with reference to causation in
criminal law where medical negligence could possibly be a novus actus
interveniens, it is submitted that the ‘locality rule’ in medical law
surfaced as the subtext of the decision.
The facts
The facts in the case appear from the judgment of Cameron JA: The
appellant was convicted of murder in the High Court in Johannesburg
(see S v Tembani 1999 1 SACR 192 (W)) and sentenced to 18 years’
imprisonment. This is an appeal with the leave of the trial Judge
(Hellens AJ) against his conviction. The appeal turns on whether an
assailant who inflicts a wound which without treatment would be
fatal, but which is readily treatable, can escape liability for the
victim’s death because the medical treatment in fact received is
substandard and negligent (own emphasis). The murder conviction
arose from an incident late on Friday night, 1996-12-14, at the Ivory
Park informal settlement near Kempton Park, in which the appellant
170 (2008) 23 SAPR/PL
shot his 28-year-old girlfriend, Ms Thandi H Lamani, at least twice.

One bullet entered her chest between the fifth and sixth ribs. It
penetrated her right lung, diaphragm and abdomen, perforating the
duodenum. The other entered her calf, fracturing her tibia and fibula.
At his trial, the appellant pleaded not guilty, reserved his defence and
chose not to testify; but the trial court rightly accepted the first-hand
accounts of the deceased’s two sisters, Ms Ntombixolo Lamani and Ms
Zodwa Lamani. The former witnessed the appellant shoot the
deceased a number of times at point-blank range in the one-roomed
shack they shared, while the latter hastened to the scene from nearby
while the accused was still present, armed, and uttering murderous
imprecations against the injured woman.
The victim was admitted to Tembisa Hospital (a public/state
hospital) on the night she was shot, and died there 14 days later. The
evidence established beyond doubt that the appellant intended to kill
Ms Lemani, and the sole issue on appeal was whether he was
responsible for her death. The cause of death was officially recorded,
and proved at the trial, to be septicaemia as a consequence of a
gunshot wound through the chest and abdomen. On the night of the
deceased’s admission, the medical personnel at Tembisa hospital
cleaned the wound, inserted an intercostal drain and put her on
antibiotic medication; but then – even though the next day she
vomited and complained of abdominal pains, sure signs of peril – she
was left insufficiently attended in the ward until Tuesday. By that
time, four long days later, peritonitis (infection of the abdominal
lining) had set in. Only then was a laparotomy (a surgical incision
opening the abdominal cavity) performed, and the gunshot wound
properly tracked and sutured, though the sufficiency of what was
done, even then, is doubtful. Though she was belatedly transferred to
the intensive care unit on 1996-12-23, and a second laparotomy
performed on 1996-12-24, it was all too little, and far too late. In the
graphic words of the district surgeon who performed the post-
mortem, Dr Peters, by then ‘everything had gone septic’ and Thandi
Lamani died in what must have been acute pain and discomfort on
1996-12-28.
The medical evidence makes pitiful reading and, ultimately, the
unavoidable conclusion is that the deceased received inadequate and
negligent care at Tembisa Hospital. The trial Court sympathetically
observed that the doctor in charge, Dr Jovanovic, who attempted, on the
one hand, to justify his interventions and the hospital’s standard of care,
while, on the other, apologising for inadequate treatment and facilities,

was caught ‘in a cleft stick’. Despite his anguished explanations of the
arduous conditions under which medical personnel are obliged to work
at Tembisa Hospital, the trial Judge found that it had been prima facie
established that the nursing staff and doctors were negligent. In
particular, the trial Judge noted that the hospital was understaffed,
especially over weekends, and that the doctor/patient and nurse/
patient ratios were woefully inadequate. The medical records were
deficient and no proper discipline was enforced in keeping them. The
standard of nursing care was evidently poor. Even though these
shortcomings resulted partly from budgetary constraints and a lack of
resources, with consequent enforced prioritisation, the trial Judge did
not consider he could find the standard excusably low and noted that it
was indeed ‘a sad experience to realise that many of our citizens and
members of our society critically injured or wounded might find
themselves by dint of their financial circumstances exposed to so
woefully inadequate a system of medical care’.
The trial Judge accordingly found that the hospital’s and doctors’
negligence was not in the circumstances ‘so overwhelming as to make
the original wound merely part of the history behind the patient’s
presence in the hospital so that it could be said that death did not
flow from the wound’. Applying a ‘flexible approach to causation’ –
one that was ‘practical’ rather than ‘over-theoretical’ – Hellens AJ
considered it in accord with justice to hold that, in the juridical
sense, the medical negligence did not oust the causal connection
between the shooting and the deceased’s death. The appellant was
accordingly convicted of murder.
The appeal
The legal question
Essentially, the legal question on appeal was simply whether the
appellant, Tembani, whose actions (the shooting and serious wounding
of his girlfriend) were the factual cause of her death, could also be noted
as the legal cause of her death due to policy considerations specifically
in the face of proven medical negligence by the attending medical staff
of Tembisa Hospital? Put differently, could the appellant’s defence that
the proven medical negligence by the attending medical staff of the
hospital is a novus actus interveniens which suspends any legal causation
on his part, succeed? The trial court, with reference to, and reliance
172 (2008) 23 SAPR/PL
upon, the English case of R v Smith [1959] 2 QB 35, dismissed this

defence and graded medical negligence in finding that medical neg-
ligence, (although proven), will only be a novus actus interveniens if such
negligence was ‘overwhelming’. This finding was made based on policy
considerations, which generally translates into judicial considerations
based on fairness, justice and reasonableness (compare also Van Oosten
Oorsaaklikheid by moord en strafbare manslag (unpublished LLD thesis,
University of Pretoria 1981) 459; Hart and Honoré Causation in the law
(1985) 241; Snyman Criminal law (2002) 89; Burchell Principles of
criminal law (2005) 209; Burchell Cases and materials on criminal law
(2007) 138; S v Daniels 1983 3 SA 275 (A); S v Mokgethi 1990 1 SA 32 (A);
S v Ramasunya 2000 2 SACR 257 (T); S v Counter 2003 1 SACR 143 (SCA).)
The judgment
In considering the stated legal question, Cameron JA first restated the
substantive legal principles pertaining to causation in South African
Criminal Law and reviewed the applicable case law (see paragraph
[10]–[20] of the report). He noted that there was no doubt that without
the appellant’s murderous attack the deceased would not have died;
equally, had there been no medical intervention after the attack, the
gunshot wound would have proved fatal. It was reiterated that what was
at issue, therefore, was the legal responsibility for the death in the
manner in which it ensued (see para 11 at 361b–d of the report).
It was further accepted that the deliberate infliction of an
intrinsically dangerous wound, from which the victim was likely to die
without medical intervention, must generally lead to liability for an
ensuing death, whether or not the wound was readily treatable, and
even if the medical treatment given later was substandard or
negligent, unless the victim so recovered that at the time of the
negligent treatment the original injury no longer posed a danger to
life (own emphasis)(see para 25 at 366e–g of the report). The Judge
justified this approach on the basis of the following interconnecting
policy considerations:
• Firstly, an assailant (such as the appellant) who deliberately inflicted
an intrinsically fatal wound consciously embraced the risk that death
might ensue. The fact that others might fail, even culpably, to
intervene to save the injured person did not, while the wound
remained mortal, diminish the moral culpability of the perpetrator;
• Secondly, in a country like South Africa where medical resources were
not only sparse, but grievously maldistributed, it was quite wrong to
impute legal liability on the supposition that efficient and reliable

medical attention would be accessible to a victim, or to hold that its
absence should exculpate a fatal assailant from responsibility for
death. Such an approach would misrepresent reality, for it presumes
levels of service and access to facilities that do not reflect the living
conditions of a considerable part, perhaps the majority of the coun-
try’s population. To assume the uniform availability of sound medical
intervention would impute legal liability in its absence on the basis of
a fiction and this cannot serve the creation of a sound system of
criminal liability. Improper medical treatment was neither abnormal
nor extraordinary in South Africa and the supervention of negligent
treatment did not constitute an intervening cause that exculpated an
assailant while the wound was still intrinsically fatal (own
emphasis)(see paras 26-28, paraphrased at 366h-367e of the report);
• In conclusion, it was ruled that even gross negligence in the
administration of medical treatment would be insufficient to
relieve an original perpetrator of criminal liability for an ensuing
death, provided that ‘gross negligence’ did not imply an absence
of good faith on the part of those responsible for the treatment
(own emphasis)(see para 29 at 367f–i of the report.)
Consequently, the appeal was dismissed (Heher JA, Combrinck AJA,
Malan AJA and Theron AJA concurring).
Evaluation
Judicial recognition of improper medical treatment as
neither abnormal nor extraordinary in South Africa
In a time when it is an acknowledged fact that public health care in
South Africa is in crisis and gravely compromised due to a lack of
resources and infrastructure, an acute shortage of medical staff (specifi-
cally in public/state hospitals), when the public (more specifically public
health care users), non-governmental organisations (such as the
Treatment Action Campaign (TAC)) and the media constantly question,
scrutinise, and challenge the political leadership when it comes to the
delivery of health care services in the public sector, the comments of
Cameron JA, in this respect, are hardly surprising. In fact, it is submitted
that it is undoubtedly a bold and sobering stance on the general quality
of health care in the public sector that is to be commended and
welcomed. At last there is judicial recognition about the stark reality of
the public health care landscape in South Africa. This stance is further
174 (2008) 23 SAPR/PL
borne out by disturbing recent statistics pertaining to the deaths of

mothers, babies and children in the South African health care system.
According to an official report Every death counts published in March
2008 and presented by the Minister of Health (see www.health-e.org.za,
www.doh.gov.za ), the deaths of 42 000 South African babies and
children could be prevented every single day if gaps in the healthcare
system (including poor patient care and lack of interventions to address
HIV/AIDS) were addressed (see also Health and democracy: A guide to
human rights, health law and policy in a post-apartheid South Africa
(2007)(eds Hassim, Heywood and Berger).
Although the foregoing stance taken by Cameron JA is to be
welcomed in that this judgment merits the unavoidable inference that
the ‘locality’ where medical treatment is administered (specifically
if it is a public hospital where health care services are compromised
such as stated in Tembani) will have a definite influence on the sub-
sequent liability of the attending medical staff (contra the judgment
of Innes CJ in Van Wyk v Lewis supra), one has to be wary of the far
reaching implications this judgment may hold for legal liability in the
context of medical negligence as a causative factor in public
hospitals. However, one first has to assess the expectation of
improper medical treatment in the South African hospital setting
against the slippery slope of policy considerations.
Improper medical treatment/medical negligence,

policy considerations and implications
It is trite law that the legal test for medical negligence (in the context
of criminal liability), is one of reasonable foreseeability and prevent-
ability with reference to the yardstick of the reasonable competent
medical practitioner/health care provider: would a reasonable compe-
tent medical practitioner in the same circumstances have foreseen the
possibility of death through his/her actions/omissions, and: would a
reasonable competent medical practitioner in the same circumstances
have taken steps to prevent death from ensuing. It is clear that the
specific circumstances or ‘locality’ where the medical intervention or
treatment is administered plays a decisive role in the assessment of
whether the accused medical practitioner was negligent or not. To put
it bluntly, in the words of Gordon, Turner and Price Medical
jurisprudence (1953) 113, ‘the point is that a practitioner, wherever he
may be, cannot be expected to perform miracles or to make bricks
without straw’. In a purely elementological construction for criminal

liability, it is to be noted that the test for medical negligence is in
principle a test for culpability or fault, but nevertheless heavily
influenced by the particular circumstances of each case – hence the
importance of the judgment in Tembani for the ‘locality rule.’
The determination for medical negligence as a novus actus inter-
veniens in the context of causation requires that where an accused (such
as Tembani) invokes medical negligence (such as the attending medical
staff in Tembisa Hospital) as a novus actus interveniens breaking the
chain of causation, it follows that the court has to decide whether that
medical negligence (if proven) is, in itself, the factual and legal cause of
the victim’s death. This determination, whether the attending medical
staff in Tembani were in themselves, through their omissions to treat the
victim, the factual and legal cause of her death, was never explicitly
done by the Trial Court or the Supreme Court of Appeal in the judgment
of Tembani. What was done was simply to state, by applying the
condictio sine qua non yardstick, that Tembani’s actions were the factual
cause of the victim’s death, and that his actions, on the basis of policy
considerations, were also the legal cause of her death. For this reason his
defence of proven medical negligence as a novus actus interveniens on
account of the same policy considerations was rejected due to the fact
that the medical negligence was not ‘overwhelming’ (Trial Court) or that
one can expect substandard medical treatment in South African public
hospitals (Supreme Court of Appeal). Even ‘gross medical negligence’ will
not avail the assailant!
Based on the foregoing, it is submitted that both courts should have
tested whether the proven medical negligence was in fact the factual and
legal cause of the victim’s death. In this regard the omissions on the part
of the attending staff, for purposes of factual causation, should have
been tested with the conditio cum qua non. The question is simply
whether the victim would have survived if she promptly received proper
medical care? If the answer to this question is in the affirmative, then the
inference is that the medical negligence is the factual cause of the
victim’s death. Only then is the test for legal causation indicated. It is in
this respect that the yardstick of policy considerations becomes a slippery
slope: what are the implications for the attending medical staff if the
finding is made that their medical negligence were indeed the factual
and legal cause of the victim’s death? Strictly speaking the attending
medical staff are then prima facie liable and will have to be charged with
culpable homicide, reported to the Professional Board of the Health
176 (2008) 23 SAPR/PL
Professions Council of South Africa for professional misconduct and/or

subjected to a judicial inquest and possibly a civil claim for damages. It
is apparent that the Courts in this regard are extremely wary on the basis
of policy considerations not to make such a finding, even if it means that
they have to grade the medical negligence as ‘overwhelming and gross’
or to effectively invoke the expectation of substandard medical treat-
ment in South African public hospitals as the norm, or even to reintro-
duce the rule versari in re illicita in the context of causation. This latter
rule was rejected in South African criminal law in S v Bernardus 1965 3
SA 287 (A), which stated that an accused is liable for all the consequences
merely on account of his unlawful actions/omissions, irrespective of
whether he foresaw those consequences or not.
It is submitted that the judgment in Tembani sends a clear message
to all accused and potential accused who inflicted, or will in future
inflict, serious harm to a victim/potential victim – the message is this:
even if the victim survives the initial wounding/attack and is taken to
hospital, medical negligence (even if it is gross) will for all practical
purposes and in principle never qualify as a novus actus in South African
criminal law as one can expect substandard medical treatment in South
African public hospitals! As an accused, one will thus never be able ‘to
hide’, as it were, behind medical negligence (even of it is ‘gross’) to
escape criminal liability in the context of causation. This submission begs
the following question: conversely will the negligence (even ‘gross
negligence’) of attending medical staff in public hospitals in the context
of the facts in Tembani always be able to invoke the ‘locality
rule’/substandard medical treatment (on the basis of policy considera-
tions) as a defence against legal liability even where their medical
negligence was a contributing and underlying cause of the victim’s death?
Will they, as they did in Tembani, always escape liability despite a
finding that they were medically negligent? Nowhere in the judgment is
there an indication of what is meant by ‘gross negligence’, apart from
stating that it does not imply the absence of ‘good faith on the part of
those responsible for the treatment’. Although Tembani was convicted
and sentenced to 18 years imprisonment, what legal redress is there for
the victim’s family against the medical negligence of the hospital? Do
they now have to vent their indignation and frustration for their loss by
lodging a costly civil claim against the public hospital? Is there, from their
perspective, no criminal sanction for the negligence of the medical staff?
With all due respect, is it possible that the ‘slanted’ policy considerations
of Tembani might be perceived as ‘legal protectionism’ by the Bench in
favour of the medical profession? What about constitutional equity in the

public health care system? What are the constitutional implications for
the state in the context of its constitutional obligation to provide for
access to health care services (as per s 27 of the Constitution of South
Africa)? Is the unavoidable implication of this judgment that South
African citizens who are dependent on public health care will have access
to health care services, but that the quality and content of those services
will be compromised as substandard or negligent medical treatment is
neither abnormal nor extraordinary in our public hospitals? Surely this is
highly questionable and will open the door to a wave of litigation against
the state for failing to fulfil its constitutional obligations to provide
medical care, and access to health care, that are of an acceptable
standard (at least in context of the minimum core requirement thereof).
Although the comments of Cameron JA were restricted to public health
care in South Africa, the question remains whether his comments may be
extended to medical practitioners, nurses and health care providers in
the private sector (such as private hospitals)?
A suggested principled approach

The foregoing questions surface as a result of the inevitably unprincipled
approach one embarks upon when the ‘slippery slope’ of policy
considerations enters into the equation of legal causation. Policy
considerations entail value judgments with reference to fairness and
justice which are concepts that are not easily judicially distilled. Value
judgments, more often than not entail the balancing of various
conflicting interests. In the Tembani judgment these interests are clear:
the reprehensible actions of an accused who launched a vicious and
murderous attack upon the innocent victim, inflicting serious and life
threatening injuries, versus the overworked and understaffed medical
hospital staff who ‘only did their best’ under difficult and medically
compromised circumstances. The choice becomes clear: the accused
placed the victim in the hospital and will therefore not escape liability
for his actions merely because the medical staff acted negligently.
However, the concepts of fairness and justice in law and in a
constitutional democracy beg legal certainty, and legal certainty begs a
principled and constitutional approach.
It is respectfully submitted that both the Trial Court and the Supreme
Court of Appeal in Tembani did not follow a principled approach with
regard to the determination of legal causation in the context of medical
negligence as a potential novus actus interveniens. By ‘grading’ medical
178 (2008) 23 SAPR/PL
negligence to ‘overwhelming or gross’ and by ruling that because the

expectation of substandard/negligent medical treatment in our hospitals
is neither abnormal nor extraordinary, the Court has, in my opinion,
created a disproportionate and artificial yardstick by allowing too much
leverage for unacceptable and even unethical medical standards in our
public hospitals to flourish, under a protective veil of policy conside-
rations. This approach has, with respect, serious implications for the
fundamental application of a Bill of Rights, specifically in the context of
constitutional equity and the state’s obligation to deliver acceptable
health care services. Surely the medical staff members of our public
hospitals are not above the law and have to practise their trade
according to the legal rules and norms as well as the ethical rules
prescribed by the Health Professions Council of South Africa and the
Nursing Council? Surely these professional bodies will not tolerate these
sub-standards and will certainly frown upon the expectation (as opposed
to the reality) of substandard/negligent treatment? If these medical
practitioners/nurses/health care providers fall below those prescribed
standards, as a result of compromised medical circumstances, they may
invoke whatever grounds of justification (such as necessity and/or other
emergency) and/or other defences (such as lack of culpability, medical
misadventure or even the application of the ‘locality rule’, bearing in
mind that the test for negligence is also a rule of circumstance)) in order
to escape liability. Even if the Court in Tembani had found that medical
negligence was indeed a novus actus interveniens, it follows that only the
element of causation is proven (in the premise that the novus actus
interveniens is indeed the factual and legal cause of the victim’s death).
It goes without saying that the mere fact that the medical team legally
caused the victim’s death, does not mean that they are guilty of
culpable homicide. The State will still have to prove, beyond reasonable
doubt, in a separate and new trial, that the medical staff, having caused
the death, also acted unlawfully and with fault (being the other essential
elements for criminal liability). As was argued before (see Carstens and
Pearmain Foundational principles of South African medical law (2007)
852), it is doubtful whether a successful prosecution will be led against
medical staff who acted in the same way as the medical staff in Tembani
as they may escape liability on the basis of the absence of unlawfulness
or fault. However, the decision to prosecute such negligent medical staff
lies with the Director of Public Prosecutions and/or the Professional
Boards of the Health Professions Council of South Africa/South African
Nursing Council.
By the same token, the reproachable accused in Tembani would

also not have escaped criminal liability if the Court did indeed find
that the medical negligence was a novus actus interveniens. The
accused would still have been liable for attempted murder and is, in
principle, eligible to receive the same punishment as though he has
committed the completed crime of murder (as was the case in S v
Ramosunya 2000 (2) SACR 257 (T)). It is to be noted that it is the duty
of the State to prove beyond reasonable doubt the absence of a
potential novus actus interveniens. If one has regard to the judgment
in Ramosunya supra, it is submitted that in the Tembani judgment it
is doubtful whether the State has proved that the medical negligence
was indeed NOT a novus actus interveniens, and that the accused
should therefore have received the benefit of the doubt. One has to
bear in mind that the Trial Court in Tembani did find that the medical
negligence was an ‘operating cause’ of the victim’s death.
Conclusion
Ultimately, in conclusion and in view of the foregoing, it is respectfully
submitted that the Court in Tembani should have applied a principled
approach with reference to the essential elements for criminal liability
as well as constitutional equity, and should have found, on the proven
evidence that the medical negligence, which was the factual cause of
death, was indeed a novus actus interveniens. Whether the novus actus
interveniens (the medical negligence) would indeed have also transpired
to become the legal cause of the victim’s death, remains an open
question and should have been left to the prerogative of the Director of
Prosecutions, as dominus litis, to decide whether to prosecute the
medical staff in a new trial or not. Although the stance taken by Cameron
JA that substandard/negligent medical treatment in South African public
hospitals is neither abnormal nor extraordinary, is to be generally
welcomed as a concrete judicial recognition of the compromised reality
of public health care services in this country, it is submitted that this
recognition of locality in medical care should not be invoked in the
context of policy considerations for the determination of the element of
causation, but should rather be invoked to assist medical practitioners/
nurses/health care providers to escape liability in the context of the
elements of unlawfulness and/or fault. Such an approach will also accord
with the core values of our constitution. A sound criminal justice system,
working in tandem with a constitutional dispensation based on human
180 (2008) 23 SAPR/PL
rights, not only demands a principled approach but ultimately serves to

enforce criminal and state accountability. The erosion of such an
approach will continue to perpetuate the sad reality that many of our
citizens and members of our society, when critically injured or wounded,
might find themselves, by dint of their financial circumstances, exposed
to a woefully inadequate system of medical care.
Pieter Carstens
University of Pretoria
The evolution of the operation of the
doctrine of estoppel in public law
and interpretative methodology in
RPM Bricks (Pty) Ltd v City of
Tshwane Metropolitan Municipality
2007 9 BCLR 993 (TPD)
Introduction
The judgment in this case involves, inter alia, the doctrine of
estoppel as it operates in the field of public law (see ‘“Estoppel by
representation” in die publiekreg’ (1991) 54 THRHR 388.) In this case
note I will consider and critique the scope and evolution of the
doctrine of estoppel in relation to administrative law, as well as the
question of the theory and methodology of the interpretation of
statutes in South Africa.
Facts of the case

The Defendant in this case, Tshwane Metropolitan Municipality,
awarded to the Plaintiff, RPM Bricks, a tender for the supply and
delivery of coal for a period of three years (995 I para 3). The terms
of the supply contract stated that the prices initially payable by the
Municipality to RPM Bricks were the prices reflected in the annexure
to the contract. A dispute arose (996 F-G para 7) relating to the price
payable for agreed volumes of coal that were delivered during
December 2002 and January 2003. RPM Bricks contended that an
increase, based on an amended price, was validly granted by the
Municipality. The latter contested this, insisting that it was only
obliged to pay the original contract price. The gravamen of the
dispute was whether the price increase requested by RPM Bricks was
182 (2008) 23 SAPR/PL
validly granted by the Municipality. If this were indeed the case, then
the Municipality would be indebted to RPM Bricks. If, however, this
were not so and there was no valid price increase, the question of
estoppel arose, and it had to be determined whether the Municipality
was estopped from denying liability in the circumstances.
Details and operation of the contract

The contract provided that the price was fixed for the first year of the
contract, and further provision was made for an annual adjustment in
accordance with the annual price index for the previous year in such
a way that the price index applied to both components of the overall
price, that is, the commodity price and the rail expenses. The
contract price was adjusted with effect from 2002-04-01, in
accordance with the increase in the Producer Price Index (PPI). The
extent of the adjustment was recorded in a letter of 2002-05-15
addressed by RPM Bricks to the Municipality (997 para 9). This was
subsequently confirmed by the Municipality in a letter of 2002-07-03
addressed, in turn, to RPM Bricks.
Subsequently, on 2002-06-13, and at the request of the power
station’s Chief Engineer for Mechanical Maintenance, RPM Bricks
indicated in a letter to the Municipality that Transnet was unable to
provide rail trucks for the transportation of the coal. As a result, RPM
Bricks tabulated the details of the price increases that would result from
the use of road transport to replace the services of Transnet. On 2002-08-
22, the Municipality addressed a letter to RPM Bricks that was signed on
behalf of the Acting Functional Co-Ordinator: Procurement (997 para 11).
It declared: ‘your application for an increase in the price of coal ... has
been approved’ and, further, that ‘the increase has been verified and
found to be in order’ and that ‘the new prices shall therefore with effect
from the 2002-07-01 be as per attached annexure A’.
Despite all of this, the Municipality tried to avoid payment by
raising several defences (997 para 13). Among other things, it raised
the defence of ultra vires. Although it conceded that the letter that
confirmed the price increase requested by RPM Bricks was addressed
to the latter, it alleged that the letter was drafted by one Arlow and
subsequently signed by another official, called Strydom. Although
both these persons were the Municipality’s employees, neither were
authorised to draft or to agree to the content of the letter concerned,
or to confirm the contents of such a letter to RPM Bricks.
In its replication, RPM Bricks denied that Arlow and Strydom lacked
the authority to draft or agree to the content of the letter in
question, or to confirm the contents, or to address such a letter to
the company (998G para 14), and RPM Bricks averred that the
Municipality was estopped from denying the authority of its officials.
In this case the scope and authority of Arlow and Strydom and any
limitations applicable to their authority had to be objectively assessed
(1002E para 25). These matters were obviously within the knowledge
of the Municipality, and not known to RPM Bricks. Furthermore, what
also had to be determined was whether the Municipality was estopped
from relying on the lack of authority of its officials to avoid liability
for payment of increased prices.
The application of the doctrine of estoppel in

the case
After addressing the doctrine of estoppel and its application,
discussed in greater detail below, the court observed that this
doctrine was not allowed to operate in circumstances where it would
have a result which is not permitted by law. As a consequence,
estoppel would not be upheld if its effect were to enforce that which
the law declared to be illegal or invalid (1003 B para 27). In effect
this means that, as the court explains, a statutory body with powers
and duties conferred or imposed upon it by statute cannot be bound
by estoppel to do something ultra vires its powers, or to refrain from
doing something which it is its duty to do. Nevertheless, a distinction
had to be drawn between acts which were ultra vires a statutory
body’s powers, and those done after certain internal formalities were
complied with, or not. In relation to the latter, persons dealing with
the statutory body might, in a perfectly bona fide manner, assume
that all the necessary formalities had been complied with, and could
therefore plead an estoppel if the defence were raised by the
statutory body that the necessary formalities had not been complied
with (1003D para 27).
All things considered, the court found that the requirements for
estoppel were satisfied (1006G para 35). A representation was made by
the Municipality that the price increase had been approved.
Furthermore, the representations were made by various officials of the
Municipality, and not merely by the officials who addressed the letter to
RPM Bricks to confirm that the requested increase had been approved.
184 (2008) 23 SAPR/PL
Moreover, the representations were in the form that RPM Bricks could
reasonably expect to cause outside parties to act on the strength thereof.
As a result, RPM Bricks relied on such representations made to it that the
requested price increase was granted. This reliance on the Municipality’s
approval was indeed reasonable, given that notice of the price increase
was issued by municipal officials who had ostensible authority to approve
such an increase, and who hailed from the Municipal department to
which RPM Bricks representatives had been informed they must address
their request for a price increase. All things considered, the prejudice to
RPM Bricks was self-evident.
The court also pointed out that section 33 of the Constitution, which
guaranteed the right to reasonable administrative action, provided a
further reason why, even if Arlow and Strydom were not authorised to
act as they did, the Municipality was estopped from invoking the defence
it now raised. To allow the Municipality to render itself immune from its
obligations to pay for the coal which it received from RPM Bricks, and
which it had consumed, would be contrary to the culture of justification
inherent in, and promoted by, the Constitution (1008E par[38]).
Reasonable and just administrative action was indeed a value reflected
in the Constitution to which expression had to be given when developing
the common law as required by section 39(2) of the Constitution. This
meant that a rule of law which permitted an organ of state, as a result
of its own carelessness or neglect, to deprive another of a statutory right
of recourse and then to render itself immune from a defence to that of
deprivation was inconsistent with the culture of justification of which the
right to reasonable administration is an important part. Therefore, to
permit a party to take advantage of a rule against raising estoppel where
there is minimal countervailing benefit to the party would be inconsistent
with the entrenched value of reasonable public administration. The
function of the courts, in such circumstances, is to maintain a balance
between public and private interests and on that basis to decide whether
estoppel should be allowed to operate. Applying the principles set out
above, the court found that the price increase had been validly granted
by the Municipality and that RPM Bricks was entitled to judgment as
claimed (1010F para 44).
Comment on the judgment

This is a sound judgment in relation to the exposition and application
of the doctrine of estoppel. The fundamental principle inherent in
estoppel is that a person who by either representation or statement

causes some other person to act in a prejudicial way, in reliance on
a putative state of affairs, is precluded from denying it later. Wade
therefore comments, cryptically, that ‘[j]ustice prevails over the
truth’ (Administrative law (1989) 261) Estoppel, often characterised
as a rule of evidence, is actually a principle of law (Wade
Administrative law 261). Estoppel cannot, however, be invoked so as
to furnish an administrative authority with powers that it does not
actually possess in law. Consequently, no estoppel can validate action
that is ultra vires.
Baxter (Administrative law (1984) 400) explains that the doctrine of
estoppel cannot apply in an unqualified way to public authorities, since
it would have the effect of allowing them to acquire powers which they
do not possess in law. He observes that to recognise estoppel as a source
of law would undermine the principle of legality (4001), and that in
certain cases the courts have used the analogy of the Turquand rule
found in company law; nevertheless, he comments that public authorities
are estopped where the ‘legal’ defect is a mere internal irregularity. In
Roodepoort Settlement Committee v Retief (1951 1 SA 73 (0)), the
relevant municipal committee attempted to repudiate a sale on the
grounds that internal formalities which the committee should have made
were not observed. The relevant committee was constituted by persons,
two of whom were not qualified to be members. The court in this case
upheld a plea of estoppel as the committee, itself, was responsible to
ensure that its internal formalities were properly observed.
The latter case should be compared and contrasted with the judgment
in Collector of Customs v Cape Central Railways ((1889) 6 SC 402), in
which none other than the Prime Minister of the erstwhile Cape Colony
had mistakenly given an assurance that imported cement would not be
subject to customs duty. The cement was subsequently released untaxed
by the relevant department. When it was discovered that the cement
was indeed subject to duty, the importers were sued by the Collector.
Counsel for the Railways, with considerable confidence, raised the
argument that the Collector of Customs was estopped from denying the
correctness of the Prime Minister's assurance. This was rightly rejected
by the courts. In the case of Gerhardt v State President (1989 2 SA 499
(T)), the court, per Goldstone J, doubted whether a statement made in
Parliament ‘can ever give rise to contractual rights’ (505G).
Also, according to Conradie J in Metal and Electrical Workers Union of
South Africa v National Panasonic Co (Parow Factory) (1991 2 SA 527 (C)
186 (2008) 23 SAPR/PL
532I ), ‘[a]n invalid administrative act may be validated by the failure of

a person entitled to challenge it to do so’. In Durban City Council v
Glenmore Supermarket and Café (1981 1 SA 470 (D) at 478A), Thirion J
elaborated on an issue that demonstrates the limited applicability of the
estoppel doctrine in regard to administrative law by observing that:
where the allowance of the plea of estoppel would result in a party being
prevented from performing a duty imposed on him by statute, it is
necessary to enquire whether the provision imposing the duty is
peremptory and whether the duty imposed is in the public interest. If it is,
then the plea of estoppel cannot succeed.(Quoted by Ackerman J in Isaacs
v Minister of Education and Culture 1993 2 SA 828 at 841D-E. See, in this
regard, Joubert (ed) Law of South Africa vol 9 paras 387-9. See also the
case of Hoisain v Town Clerk, Wynberg 1916 AD 236 at 239-40.)
Public authorities acquire their powers from the relevant enabling
legislation. The application of the doctrine of estoppel to the public
authorities allowing them, in effect, to use powers which they do not
possess in law, would manifestly undermine the fundamental principle of
legality (see Bekker v Administrateur, Orange-Vrystaat 1993 1 SA 829 (0)
where the Court held that ‘’n Handeling wat ultra vires is kan nie deur
die werking van estoppel met regsgeldigheid beklee word nie’ 832B-C.)
However, in some instances it could be in the public interest to allow
authorities to be estopped where, in the circumstances, legality is not
undermined. Therefore, in each case the circumstances must be carefully
analysed to determine the consequences of the application of the
doctrine of estoppel. Wade and Forsyth observe that one special variety
of estoppel is res judicata (see Administrative law (1994) 276-7.) This
results from the rule which prevents the parties to a judicial
determination from litigating the same question over again, even though
the determination is demonstrably wrong. Except in proceeding by way
of appeal, the parties bound by the judgment are estopped from
questioning it. Like other forms of estoppel discussed above, res judicata
plays a restrictive role in administrative law, since it must yield to two
fundamental principles that are fundamental to administrative law, as a
branch of public law. Firstly, jurisdiction cannot be exceeded, and
secondly, that statutory powers and duties cannot be fettered (see Wade
and Forsyth Administrative law 276-7.)
The converse of what has been discussed above should also be
considered. So, for example, if the administration performs an invalid
or unauthorised act, it cannot raise the defence of consent on the
part of the subject, whether express or implied or by way of estoppel
(Wiechers Administrative law (1985) 76). In the celebrated case of

Trust Bank van Afrika Bpk v Eksteen (1964 3 SA 402 (A)), and Strydom
v Die Land-en Landboubank van Suid Afrika (1971 2 SA 449 (NC); 1972
1 SA 801 (A) at 815) the court held that an ultra vires act cannot be
cured by estoppel and acquire validity in this manner. Furthermore,
consent to an invalid notice by private individuals cannot cure a
defect in a notice (Springs Town Council v MacDonald; Springs Town
Council v Badenhorst 1968 2 SA 114 (T)), nor can a statutory body
raise estoppel in order to exceed the bounds of its statutory authority
or to avoid compliance with a statutory duty (Singh v Group Areas
Development Board 1964 3 SA 391 (D)).
Estoppel and administrative law

In sanctioning the application of estoppel in this case, the court took
into account that ‘to allow the defendant to render itself immune
from obligation to pay for coal which it received and which it
consumed would be inconsistent with the culture of justification of
which the right to reasonable administration action is an important
component’ (1007F-G para 36), as reflected in section 33 of the
Constitution. In so doing, Patel J relied on the judgment of
Boruchowitz J in Eastern Metropolitan Substructure v Peter Klein
Investments (Pty) Ltd 2001 4 SA 661 (W) as well as the judgment of
Lord Denning MR in the English law case of Lever Finance Limited v
Westminster (City) London Borough Council [1971] 1 QB 223.
Hoexter (Administrative law in South Africa (2007) 40) observes
that in the new constitutional era, ‘the cautious view of things’ as far
as estoppel is concerned has been challenged, by Boruchowitz J in
Eastern Metropolitan Substructure v Peter Klein Investments (Pty) Ltd
2001 4 SA 661 (W) who has taken the view, as indicated by Hoexter
(op cit 41), that the Constitution ‘had substantially changed the legal
context, particularly since it required the evolution of the common
law in accordance with the Constitution’. She points out further that
the factual situation in the mentioned case was comparable to that
in Glenmore Supermarket (supra), where the defendant, an owner of
a block of flats, had relied on the correctness of the administrator’s
invoices for some years when it was suddenly confronted with a claim
for thousands of rands in arrears rates and services charges that the
plaintiff, the administrator in this matter, had previously neglected
to claim. As a result, the defendant sought to estop the plaintiff from
188 (2008) 23 SAPR/PL
claiming the charges, while the plaintiff excepted on the basis to

allow estoppel would effectively prevent its performance of a
statutory duty. Boruchowitz J held that the right to reasonable
administrative action, including proportionality, and the culture of
justification of which it formed part, would indeed not countenance
immunity from estoppel where this would be of minimum benefit to
the plaintiff and cause great hardship and justice to the defendant in
this case. This is a sagacious judgment, reflecting, metaphorically,
the wisdom of Solomon. In so doing he drew on the judicial wisdom,
of no less a judicial mind than Lord Denning MR, in Laker Airways Ltd
v Department of Trade ([1977] 2 All ER 182 (CA) 194d-f), and then
concluded that the proper approach to this equitable doctrine would
be ‘to balance the individual and public interests at stake and decide
on that basis whether the operation of estoppel should be allowed in
a particular case’ (para 40). This is indeed what Patel J has done in
the case under discussion and constitutes a development of the
doctrine of estoppel as a result of the application of the culture of
justification inherent in reasonable administrative action mandated
by section 33 of the Constitution. Consequently, the doctrine emerges
in a bolder and less timid manifestation than was previously the
position under the old constitutional dispensation.
The defendant municipality’s argument

Counsel for the Municipality argued that the public interest at stake
was a pertinent consideration (1008 F-G para 38). Strydom and Arlow
had made a bona fide error, which resulted in public money being
paid out to RPM Bricks, and to which, counsel contended, RPM Bricks
was not entitled. He contended further that a local authority’s
revenue is in the nature of trust money. In so doing, counsel relied on
the judgment of Innes CJ in Hosain v Town Clerk Wynberg 1916 AD
236. The bolder manifestation of estoppel, as referred to above, as
a result of the new constitutional dispensation, is able to counter this
argument of the defendant municipality.
Furthermore, the court, per Patel J, pointed out that the error
upon which the Municipality sought to rely to avoid the price increase,
was a unilateral one. However, to avoid contractual liability it must
prove that its mistake was both material as well as reasonable (1009C-
D para 41). This was most certainly not the position.
The question of interpretative methodology

Although the law in relation to estoppel is correctly expounded and
applied in this case, an aspect of this case that needs to be critically
examined is that which deals with the interpretation of statutes. Patel
J pointed out (1002B para 23) that it is trite law that a provincial
legislature is not competent to amend a national statute such as the
Local Government Transition Act 29 of 1993. However, this Act allows
a municipal council to dispense with the calling of tenders in the case
of an emergency or a sole supplier. Furthermore, necessity is not a
ground of exemption for the calling of tenders in terms of the
Transition Act. The terms ‘emergency’ and ‘necessity’ have to be
interpreted. In this regard Patel J points out (1004 A para 29) that
‘the terms “emergency” and “necessity” are not defined in the Act’
and consequently ‘[t]he meaning of these terms must be sought by
applying the primary rule of construction of statutes, that is, that the
language of the legislature should be read in its ordinary sense’. Patel
J then proceeds to cite as authority for this the judgment in Pick ’n
Pay v Minister of Mineral and Energy Affairs 1987 2 SA 865 (A) 876C-D
in the primary rule is explained as follows:
As stated in Union Government (Minister of Finance) v Mack 1917 AD
731 at 739, and stressed in subsequent decisions, ‘The primary rule in
the construction of statutes is that the language of the legislature
should be read in its ordinary sense’.
He then goes on to quote from the case of Adampol (Pty) Ltd v
Administrator, Transvaal 1989 3 SA (A) 800 at 804A-D where the
literal methodology is expounded in greater detail as follows:
The plain meaning of the language in a statute is the safest guide to
following in construing the statute. According to the golden rule of
construction the words of the statute must be given their ordinary,
literal and grammatical meaning and if by so doing it is ascertained
that the words are clear and unambiguous, then effect should be given
to their ordinary meaning unless it is apparent that such literal
construction falls with one of those exceptional cases in which it would
be permissible for a court of law to depart from such a literal
construction, eg w here it leads to manifest absurdity, inconsistency,
hardship or a result contrary to the legislative intent.
However, the new constitutional dispensation in South Africa is of
great importance as it has initiated an innovative methodology and
theory of interpretation, and the literal method of interpretation, as
expounded by Patel J, is therefore obsolete. This is clearly reflected,
190 (2008) 23 SAPR/PL
inter alia, in the judgment of O’Regan J in African Christian

Democratic Party v The Electoral Commission 2005 6 BCLR 579 (CC).
According to Botha (Statutory interpretation (2005) 66) the
following three basic and kindred principles apply to the
contemporary process of statutory interpretation in South Africa:
(1) The process of statutory interpretation must take into account
that South Africa has an entrenched supreme constitution with a
justiciable bill of rights that constitutes the cornerstone of the
new legal order, of which interpretation is an integral and
significant part;
(2) As a consequence of this the most important principle of
interpretation is to determine and apply the purpose of the
legislation in the light of the Bill of Rights and values espoused in
the Constitution; and
(3) This constitutes a mandate to the interpreter to study the
legislative text to ascertain its initial meaning, and while bearing
in mind the presumptions of interpretation, construe the text by
striking a balance between the text and context of the legislation.
What is more, the Constitution, itself requires a purposive/value-
based theory of interpretation. This is set out in section 39(2) of the
1996 Constitution, which specifically addresses the seminal issue of
statutory interpretation. In this regard, Ngcobo J in Daniels v
Campbell NO 2004 7 BCLR 735 (CC) para 43 states:
Section 39(2) of the Constitution contains an injunction on the
interpretation of legislation. It requires courts when interpreting any
legislation to ‘promote the spirit, purport and objects of the Bill of
Rights’ ... in a manner that gives effect to the values of our
constitutional democracy.
In so doing it must promote, according to section 39(1) of the
Constitution, the values that underlie an open and democratic society
based on human dignity, equality and freedom; must consider
international law; and may consider foreign law.
Although in some circumstances the application of the literal
methodology may yield the same interpretation as the application of a
purposive/value based methodology, the use of the former gives
credibility to a jurisprudentially unsound and obsolete methodology and
theory. The reason for this is that statutory interpretation is no longer
concerned with the determination of a psychological intention, indeed,
even in relation to the interpretation of ordinary statutes prior to 1994
democratic era, what was actually relevant was an ‘institutional
intention’, since a legislature is a composite body and not an individual

(see ‘Legislative intention’ in Devenish The Interpretation of statutes op
cit 11). Statutory interpretation is now concerned with the determination
and application of the purpose or design of the legislation in question,
which must be read and applied in the light of the fundamental values of
‘human dignity, equality and freedom’, encapsulated in the Constitution.
Furthermore, as Froneman J (Matiso v the Commanding Officer, Port
Elizabeth Prison 1994 3 BCLR 80 (SE) 87E) observes that the ‘intention of
the legislature’ does not apply in a system of judicial review based on the
supremacy of the Constitution, for the reason that the Constitution is
sovereign and no longer Parliament. This new constitutional state of
affairs has metamorphosed the purpose and method of statutory
interpretation. The purpose is to test legislation against the values and
principles encapsulated in the Constitution. The interpretation of the
Constitution must be directed at ascertaining the foundational values
inherent in the Constitution, whilst the interpretation of particular
legislation must be directed at ascertaining whether legislation is capable
of sustaining an interpretation which is compatible with the fundamental
values or principles of the Constitution. According to Froneman J, (at
87H) ‘... interpretation in this sense is thus primarily concerned with the
recognition and application of constitutional values and not with a search
to find the literal meaning of the statute’.
Conclusion
Whereas the treatment and application of the doctrine of estoppel in
relation to administrative law and justice by Patel J is exemplary, the
manner in which the interpretation of statutes is handled is not entirely
satisfactory. As indicated above, the traditional methodology and theory
of interpretation is both obsolete and discredited, and should be replaced
by that theory and methodology, which is clearly mandated in section
39(2) of the Constitution. This involves a purposive/value based theory
and an unqualified contextual methodology of interpretation (see
Devenish Interpretation of statutes (1992) 143), who in 1992 endorsed
such an approach in the preface to his book ‘in anticipation of South
Africa acquiring a justiciable and entrenched Bill of Rights’.
In the past, the interpretation of statutes was regarded as a
Cinderella subject, but today it is a seminal discipline and needs to be
treated as such. Bearing this in mind, unfortunately, several
judgments have been delivered, since the new dispensation has come
192 (2008) 23 SAPR/PL
into effect, where the traditional approach to interpretation has been

employed.
So, for example, although the theory of literalism has been
persistently influential in our law and has reached its apogee and is
on the wane, it is, according to Du Plessis (see Du Plessis re-
interpretation of statutes (2002) 94), ‘alive and kicking’ and is most
certainly not dead like the proverbial dodo. Therefore, in this day and
age, although it has been jurisprudentially discredited, the literal
theory still has exponents in the higher court of the land. So, for
example, Smalberger JA observed in Public Carriers Association v Toll
Road Concessionaries (Pty) Ltd 1990 1 SA 925 (A) 943 I-J, ‘it must be
accepted that the literal interpretation principle is firmly entrenched
in our law and I do not seek to challenge it’.
In more recent times, the Appellate Division (now the Supreme
Court of Appeal) in Swanepoel v Johannesburg City Council (1994 3 SA
789 (A) at 794 A-B) relied once again on the orthodox literal, or plain,
meaning process of statutory construction and declared as follows:
The rules of statutory [exegesis] are intended as aids in resolving any
doubts as to the legislature’s true intention. W here this intention is
proclaim ed in clear terms either expressly or by necessary implication
the assistance of these rules need not be sought.
The above quotation is par excellence a manifestation of primitive
literalism. Even as recently as 2001, expression has been given to this
theory and methodology of interpretation. In this regard, for example,
in Commissioner, SARS v Executor, Friths Estate (2001 2 SA 261 (SCA)
273) the Supreme Court of Appeal gave expression to the traditional rules
of interpretation, encapsulating the intention of the legislature and the
so-called well-known golden rule, initially expounded in English law, by
stating:
The primary rule of construction of a statutory provision ... is to
ascertain the intention of the legislator, and ... one seeks to achieve
this, in the first instance, by giving words under consideration their
ordinary meaning, unless to do so would lead to an absurdity so glaring
that the legislature could not have contemplated it.
Once again, this is a clear example of literalism in its most basic form.
The literal theory and methodology in relation to statutory interpretation
still, therefore, finds support from time to time in the reported
judgments of our courts (see the judgment of Schutz JA in Standard Bank
Investment Corporation Ltd v Competition Commission at 2000 2 SA (SCA)
797 at 811H-812B and Du Plessis Re-interpretation of statutes 103).
The literal theory and methodology is associated with the

sovereignty of parliament and primitive legal positivism of the bygone
era of imperialism, colonialism and white minority rule, epitomised
by the simplistic jurisprudential idea, propounded by John Austen,
that law is the command of the sovereign, (see Johnson, Pete and Du
Plessis Jurisprudence: A South African perspective (2001) 72) that has
now been superseded. Our jurisprudence has progressed to something
far more intellectually and morally sophisticated, something
compatible with the universal values reflected in the Bill of Rights,
which forms an integral part of a supreme constitution.
George Devenish
Senior Research Associate
University of KwaZulu-Natal, Durban
The socio-economic nature of section 24(b)
of the Constitution – some thoughts on HTF
Developers (Pty) Ltd v Minister of Environ-
mental Affairs and Tourism (HTF)*
Introduction
Socio-economic rights are generally distinguished from civil and political
rights by virtue of the positive obligations that socio-economic rights
place on states. These rights generally require that states provide certain
goods or services to members of society to the extent that it is practically
possible.1 However, the extent to which socio-economic rights can, and
should, be enforced by courts has been open to considerable criticism.2
Whilst a plethora of reasons are usually cited in objection to the inclusion
of socio-economic rights in a Bill of Rights,3 one of the principal reasons
centres on the notion that these rights impose duties on the state that
are far beyond its fiscal capacities.4
Given these criticisms it is no surprise then that socio-economic rights
are generally phrased in a rather cautious manner. The International
*
This note was developed during my period as sabbatical fellow at the South African
Institute for Advanced Constitutional, Public, Human Rights and International Law
(SAIFAC). I would like to thank Prof Willemien du Plessis (NWU) and Mr Danie Brand
for their helpful comments on an earlier draft.
1
See, eg, Government of the Republic of South Africa v Grootboom 2001 1 SA 46 (CC).
2
See, eg, Scott and Macklem ‘Constitutional ropes of sand or judiciable guarantees? Social
rights in a new South African constitution’ (1992) 141 Univ of Pennsylvania LR 1. See also
Davis ‘Case against the inclusion of socio-economic demands in a bill of rights except as
directive principles, the focus on socio-economic rights’ (1992) 8 SAJHR 475.
3
For a summary of these objections see E Mureinik ‘Beyond a charter of luxuries:
Economic rights in the Constitution’ (1992) 8 SAJHR 464.
4
Id 465. This argument is taken one step further and is linked with the doctrine of
separation powers. It is thus argued that, in line with this doctrine, courts should not
dictate to the executive how it should spend its money.
Covenant on Economic, Social and Cultural Rights (ICESR),5 for example,

curtails the scope of positive obligations on the state through the use of
phrases such as ‘to the maximum of its available resources’ and ‘with a
view to achieving progressively the full realization of the right …’.6 Socio-
economic rights in the South African Constitution7 similarly qualify socio-
economic rights. Sections 26 and 27 deal with access to health and
housing respectively, and they significantly qualify these rights by
requiring the state to ‘take reasonable legislative and other measures,
within its available resources, to achieve the progressive realisation of
the right’ (own emphasis).8 The overall effect of these limitations is to
enjoin the state to endeavour to the best of its abilities to achieve
certain socio-economic goals. Does this mean, however, that these socio-
economic rights amount to mere aspiration, ie, hope or ambition?9
This was the position taken by the Court in HTF Developers (Pty)
Ltd v Minister of Environmental Affairs and Tourism (HTF)10 with
specific reference to section 24(b), the environmental right, in the
Constitution.11 It is a position, however, that did not consider the now
accepted interpretation of socio-economic rights which makes these
rights subject to realisation. It is a position that may furthermore
5
International Covenant on Economic, Social and Cultural Rights (1966) 999 UNTS 3
adopted by Resolution 2200A(XXI) 1966-12-16.
6
See, eg, art 2(1) of the IESCR).
7
Act 108 of 1996.
8
Ss 26(2) and 27(2). According to the Court in Grootboom (n 1) this formulation of the
socio-economic rights delimits the state’s positive obligations, qualifying them in
three ways: ‘(a) the obligation to “take reasonable legislative and other measures”;
(b) “to achieve the progressive realization” of the right; and (c) “within its available
resources”’ para 38.
9
The Oxford dictionary defines aspiration as ‘a hope or ambition’.
10
2006 5 SA 512 (T). The Supreme Court of Appeal and the Constitutional Court also
delivered judgments on this case. See HTF Developers (Pty) Limited v Minister of
Environmental Affairs and Tourism 2007 5 SA 438 (SCA) and MEC: Department of
Agriculture, Conservation and Environment v HTF Developers (Pty) Limited CCT
32/07 [unreported]. The scope and nature of s 24 was, however, not addressed in
either of these judgments.
11
S 24 of the South African Constitution provides:
Everyone has the right –
(a) to an environment that is not harmful to their health or well-being; and
(b) to have the environment protected, for the benefit of present and future generations,
through reasonable legislative and other measures that –
(i) prevent pollution and ecological degradation;
(ii) promote conservation; and
(iii) secure ecologically sustainable development and use of natural resources while
promoting justifiable economic and social development.
196 (2008) 23 SAPR/PL
limit the interpretation of section 24(b) in future. This note analyses

the position taken by the Court and discusses the facts of the case and
provides some thoughts on the judgement. In doing so, it explores the
concept of directive principles of state, and considers whether section
24(b) is a socio-economic right and addresses the notion of
‘aspiration’ as suggested by the Court.
The facts
The applicant had secured local authority approval for the subdivision
and development into residential units of land zoned as ‘special
residential’ and had begun clearing and conducting earthworks on the
site, in preparation for the proposed development. The Gauteng
Department of Agriculture, Conservation and Environment (Department)
issued a directive in terms of section 31A of the Environmental
Conservation Act 73 of 1989 (ECA)12 to the applicant, that directed the
applicant immediately to cease clearing the site and to cease its
construction activities on the site, and to design and implement a plan
for the land's rehabilitation. The Department argued that the applicant’s
activities on the site were illegal, as it had failed to secure the necessary
departmental authorisation prior to commencing those activities as
required by the section 22(1) of the ECA.13 In addition, the Department
12
S 31A of ECA states that:
(1) If, in the opinion of the Minister or the competent authority, local authority or
government institution concerned, any person performs any activity or fails to perform
any activity as a result of which the environment is or may be seriously damaged,
endangered or detrimentally affected, the Minister, competent authority, local
authority or government institution, as the case may be, may in writing direct such
person-
(a) to cease such activity; or
(b) to take such steps as the Minister, competent authority, local authority or
government institution, as the case may be, may deem fit, within a period
specified in the direction, with a view to eliminating, reducing or preventing the
damage, danger or detrimental effect.
S 31A essentially provides for liability for environmental damage and gives the
competent authority the ability to mandate, inter alia, remediation of such
environmental damage.
13
S 22(1) of the ECA deals with environmental impact assessment and states that ‘no
person shall undertake an activity identified in terms of section 21(1) or cause such an
activity to be undertaken except by virtue of a written authorization issued by the
Minister or by a competent authority or a local authority or an officer, which competent
authority, local authority or officer shall be designated by the Minister by notice in the
Gazette’. S 21(1), in turn, affords the Minister the ability to identify those activities which
in his opinion may have a substantial detrimental effect on the environment, whether in
general or in respect of certain areas by notice in the GG. The Department argued that
contended that the proposed development was inconsistent with the

departmental ridges policy which dictated that no subdivision of the
particular land can be allowed and that only low-impact development
will be considered and then only after an extensive environmental impact
assessment (EIA) and public participation process with specialist reports,
including ecological, hydrological, geotechnical, pollution and social
studies had been completed.
The applicant challenged the legality of a directive, inter alia, on
the basis that its activity was not covered by existing regulations. It
contended that the land on which the activity took place was not
‘virgin ground’ as contemplated in item 10 of Schedule 1 of regulation
118214 and hence no authorisation was required for its development
the property. It therefore requested an order that the section 31A
notice was unlawful because it was issued in respect of an activity not
falling within the regulations to the ECA.
Murphy J disagreed and adopted an interpretation of the regulation
and specifically of the term ‘virgin ground’ that is in line with the
constitutional imperative contained in section 39(2) which mandates
the interpretation of legislation in a manner promoting the spirit and
purport of the rights in the Bill of Rights. In doing so the Court went
out on a limb in upholding an administrative decision that essentially
curtails the private rights of landowners in favour of the environ-
mental right.
Thus, in line with section 24 and its effort to promote conservation
and ecologically sustainable development, the Court defined ‘virgin
ground’ to mean ‘land that has not been used or developed in the last
ten years, such land being of obvious concern to the environmental
authorities in the present age of accelerated environmental degrada-
tion’.15 The Court also noted that the power conferred by section 31A on
the Minister or competent authority is not only a necessary measure, but
one which is contemplated in section 24(b) of the Constitution, to
the activity undertaken by the applicant is covered by ss 22(1) and 21(1).

14
‘Virgin ground’ is defined in Reg 1182 to mean ‘land which has at no time during the
preceding 10 years been cultivated,’, in GG No 23401 2002-05-10. Reg 16,
promulgated under NEMA, now regulates ‘undeveloped land’ more specifically as:
‘The transformation of undeveloped, vacant or derelict land to (a) establish infill
development covering an area of 5 hectares or more, but less than 20 hectares; or (b)
residential, mixed, retail, commercial, industrial or institutional use where such
development does not constitute infill and where the total area to be transformed
is bigger than 1 hectare,’ GN R613 GG no 28938 2006-06-23.
15
Para 28 at 521.
198 (2008) 23 SAPR/PL
empower competent authorities to take steps to prevent ecological

degradation and to secure ecologically sustainable development. It also
enables the competent authority to deal expeditiously with harmful
activities either not foreseen by the Minister when making regulations,
or not necessarily intended to be subjected to the principle of
environmental assessment.16 17
In the interpretation of the reach and ambit of the applicable
legislation and policies, the Court investigated section 24 of the
Constitution. It observed that section 24(a) of the Constitution, on the
one hand, guarantees the fundamental right of everyone to an
environment that is not harmful to their health or well-being. Section
24(b), on the other hand, imposes ‘programmatic and positive’
obligations on the state to protect the environment through
reasonable legislative and other measures that prevent pollution and
ecological degradation; promote conservation; and secure ecologically
sustainable development, while promoting justifiable economic and
social development.18 According to the Court, and in line with the
view espoused by most commentators, section 24 therefore contains
two components.19 Murphy J states as follows: ‘Section 24(a)
entrenches the fundamental right to an environment not harmful to
health or well-being, whereas section 24(b) is more in the nature of
a directive principle, having the character of a so-called second
generation [or socio-economic] right imposing a constitutional
imperative on the State to secure the environmental rights by
reasonable legislation and other measures. Despite its aspirational
form, or perhaps because of it, section 24(b) gives content to the
entrenched right envisaged [section 24(a)] by specifically identifying
the objects of regulation, namely, the prevention of pollution and
environmental degradation; the promotion of conservation; and the
securing of ecologically sustainable development and use of natural
resources while promoting justifiable economic and social develop-
ment’.20
16
Para 32 at 523.
17
As mentioned above (n 10), this decision has subsequently gone on appeal to the
Supreme Court of Appeal and to the Constitutional Court.
18
Para 16 at 518.
19
See, eg, Glazewski Environmental law in South Africa (2005) 78 and Feris and Tladi
‘Environmental rights’ in Brand and Heyns (eds) Socio-economic rights in South Africa
(2005) 249 257.
20
Para 17 at 518 (own emphasis.)
The Court concluded, rightly so, that the scope of section 24 is rather
extensive in that it goes beyond simply securing an environment which
is not harmful to health. It also protects against conduct which is harmful
to well-being.21 It held that whereas the term ‘well-being’ may well be
regarded as open-ended and manifestly incapable of precise definition,
it nevertheless holds critical value in that it ‘defines for the
environmental authorities the constitutional objectives of their task’.22
From this interpretation, it follows that the imperatives of section 24
imposes on authorities a stewardship ‘… whereby the present generation
is constituted as the custodian or trustee of the environment for future
generations’.23 Thus, the provisions of section 24 impose limitations on
current owners of land in that ‘… owners of land no longer enjoy the
absolute real rights known to earlier generations. An owner may not use
his or her land in a way which may prejudice the community in which he
or she lives because, to a degree, he or she holds the land in trust for
future generations’.24
It is against the background of this analysis that the Court endorsed
the validity of the Departments’ ridges policy as compatible with the
objectives and values not only of the regulatory framework pertaining
to environmental assessments, but also with the constitutional
environmental right and the principles of sustainable development.
The application was dismissed with costs.
Some thoughts on the judgment

The judgment establishes the importance of assessing environmental
laws, regulations, policy and, in fact, administrative conduct in the
context of the constitutional imperatives as defined in section 24.
Moreover, it confirms that section 24 places a duty on environmental
authorities to not only exercise their duties within the parameters of
section 24, but to also assume stewardship over the environment. This
21
Para 18 at 518.
22
Ibid. The Court refers to the views of a commentator who views the potential ambit of
a right to ‘well-being’ as exciting, but potentially limitless and who states that it ‘encom-
passes the essence of environmental concern, namely a sense of environmental integrity;
a sense that we ought to utilise the environment in a morally responsible and ethical
manner. If we abuse the environment, we feel a sense of revulsion akin to the position
where a beautiful and unique landscape is destroyed or an animal is cruelly treated’.
23
Ibid.
24
Para 19 at 519.
200 (2008) 23 SAPR/PL
duty is confirmed by the National Environmental Management Act25

(NEMA) which states that ‘[T]he environment is held in public trust for
the people, the beneficial use of environmental resources must serve
the public interest and the environment must be protected as the
people's common heritage’.26 This imperative is contained in section
2 of NEMA which sets out principles that apply to the actions of all
organs of state ‘that may significantly affect the environment’.27
The notion that section 24 imposes limitations on current owners of
land furthermore confirms the ‘horizontal nature’ of the obligations
conferred by section 24.28 It thus takes into consideration that human
beings are probably unique in being the only species that has succeeded
in changing the natural environment to a point at which serious efforts
need to be made to ensure its continued existence. It is through
adaptation – cultural, social, political and economic – that the natural
environment has become threatened. As a result, the Court takes into
account that considerable effort is needed to conserve the natural
environment for present and future generations. It states that the real
rights of landowners are specifically limited by the operation of section
24 and the demands of inter-generational equity which require taking
into consideration the needs and interests of future generations.
Despite these commendable points, the judgment also raises various
concerns, especially as regards the interpretation of section 24(b). First,
the Court equates section 24(b) with a directive principle. Second, it
makes the statement that the nature of section 24(b) is akin to a socio-
economic right in that it imposes a constitutional imperative on the State
to secure the environmental rights by reasonable legislative and other
measures. In doing so, the Court equates socio-economic rights with
directive principles. Third, it depicts all socio-economic rights, and by
implication the environmental right, as aspirational in nature. Each of
these points will be critically considered below.
25
Act 107 of 1998.
26
S 2(4)(o).
27
S 2(1).
28
S 8(1) makes the Constitution applicable to the legislature, the executive, the judiciary
and all organs of state. In addition, s 24(b) places a specific duty on the state to regulate
in favour of environmental protection. In this regard, the Bill of Rights adheres to the
traditional view that a constitution should protect citizens against unwarranted
interference by the state and should, as a result, operate on the vertical plane. S 8(2),
however, deviates from this traditional view and provides that a provision of the Bill of
Rights also binds natural and juristic persons if, and to the extent that, it is applicable,
taking into account the nature of the right and of any duty imposed by the right
Directive principles of state policy

A number of countries have incorporated directive principles in their
respective Constitutions, including India, Austria, Spain, Brazil, France,
Italy and Germany.29 These directives lay down certain principles for the
guidance of governments and often include human rights principles. They
are affirmative instructions to the state to act in a positive manner.
However, directive principles are not legally binding.
The Indian Constitution, for example, distinguishes between funda-
mental rights, which are mainly civil and political rights, and socio-
economic rights. This is achieved by including the first mentioned as
fundamental rights in the Constitution, whilst provision for socio-
economic rights is supplied by way of directive principles of state
policy. Unlike fundamental rights, directive principles of state policy
were not made justiciable. Article 37 states that the provisions
contained in Part IV of the Constitution dealing with Directive
Principles of State Policy shall not be enforceable by any court, but
that they are nevertheless fundamental in the governance of the
country and that it shall be the duty of the State to apply these
principles in making law. The result is that personal and political
rights can be enforced against the state, while social and economic
rights cannot be enforced.30 This treatment of rights in the Indian
Constitution demonstrates the main distinction between including
fundamental rights in a bill of rights and as directive principles of
state policy. First, while fundamental rights may either prohibit the
state from doing something, or may place a positive obligation on the
state, directive principles are simply affirmative instructions to the
state. Second, while fundamental principles are legally binding,
directive principles are not.
29
See Constitution of India (1950), Österreichische Bundesverfassung (1945),
Constitucion Espanola (1978), Constituiçäo da Repùblica Federativa do Brasil (1988),
Constitution du 4 Octobbre 1958 (1958), Constituzione della Republica Italiana (1948)
and German Grundgesetz (1949).
30
The justiciability of the Directive Principles of State Policy was a contentious issue
during the drafting of the Indian Constitution. One of the delegates, Krisnamarachi,
referred to it as ‘a veritable dustbin of sentiment … sufficiently resilient as to permit
any individual of this house to ride his hobby horse into it’ quoted in Dube The role
of the Supreme Court in the Indian Constitution (1987) 154. Others labelled the
directive principles as ‘pious hopes’, ‘pious expressions’ and ‘pious superfluities,’ and
said that they could be equated to ‘resolutions made on New Year’s Day which are
broken at the end of January’, that they are ‘vague’ and ‘adrift’ and that they are
a ‘cheque on the bank payable when able’. Dube 153.
202 (2008) 23 SAPR/PL
It is therefore clear that fundamental rights cannot be equated to

directive principles and the statement by the Court that section 24(b)
is ‘in the nature of a directive principle’ is not correct. If section
24(b) was in a fact a ‘directive principle’ it would have amounted to
a mere direction to the state to endeavour to achieve certain
environmental and sustainable development goals and it would not
have imposed any concrete legal duties on the state.
In contrast with the Indian Constitution, all the rights contained in
Chapter 2 of the South African Constitution are justiciable. Unlike the
Indian Constitution, the South African Constitution does not distinguish
between civil and political rights and socio-economic rights, and the
latter have been translated into concrete legal duties.31 Thus socio-
economic rights in the South African Constitution are not directive
principles. Similarly, section 24(b) is a fully justiciable right and cannot
operate like a directive principle.
Is section 24(b) a socio-economic right?

It has been stated that ‘socio-economic rights create entitlements to
material conditions for human welfare, such as food, water, health care
services and shelter’.32 In other words, socio-economic rights place a
positive obligation on the state to give effect to the rights by way of active
implementation. In this regard section 7(2) of the Constitution requires the
state to respect, protect, promote and fulfil the rights contained in the Bill
of Rights. With regard to the function of socio-economic rights it is argued
that they fulfil two primary duties. They are ‘blueprints for the state’s
manifold activities that proactively guide and shape legislative action,
policy formulation and executive and administrative decision-making’.33
Yet, they are also ‘tools of political struggle, rhetorical devices to be used
in “forms of political action, such as lobbying bureaucrats and legislators,
campaigning for public support, or protest”’.34
31
See, eg, Grootboom (n 1) where the court affirmed the state’s duty to provide access to
adequate housing by providing for the shelter needs of those in housing crisis. See also
Minister of Health v Treatment Action Campaign 2002 5 SA 721 (CC) where the court re-
quired that the Department of Health must adopt and implement a constitutionally sound
HIV/AIDS policy in order to give effect to the right to have access to health care services.
32
Brand ‘Introduction to socio-economic rights in South Africa’ in Brand and Heyns
(eds) Socio-economic rights in South Africa (2005) 3.
33
Id 2.
34
Ibid citing Wilson ‘Taming the Constitution: Rights and reform in the South African
education system’ (2004) 20 South African Journal on Human Rights 418 421.
Section 24 fits into the above definition. As a whole, the right relates
to ‘material conditions for human welfare.’ It encompasses an acknow-
ledgment that environmental degradation has a profound effect on
humans and their continued existence. Ultimately, continued environ-
mental degradation threatens the health, livelihoods and lives of humans.
In recognition of this, section 24(b) places a positive obligation on the
state to ensure the protection of the environment by way of legislative
and other means. Consequently, it can be said that the state may not
take any unreasonable measures, legislative or other, that may be
harmful to the environment and thus also to the health or well-being of
any person. The duty to ‘respect’ fundamental rights therefore implies
that any measure on the part of the state that causes environmental
harm should be terminated.
The obligation to ‘protect’ the rights in the Bill of Rights requires
that the state must ensure that the rights of an individual are not
unduly infringed or interfered with by other individuals or groups.35 In
relation to the environment this means, for example, that the state
must protect individuals and groups living in the vicinity of industries
against pollution detrimental to their health and well-being caused by
such industries.36 The effective protection of rights also requires an
adequate legislative and institutional framework, the proper
implementation of legislation, as well as provision for appropriate
judicial and other remedies for violations.37
In addition, it requires the state to strike a balance between environ-
mental protection and justifiable socio-economic development. Section
24(b)(iii) places a duty on the state to ‘secure ecologically sustainable
development and use of natural resources while promoting justifiable eco-
nomic and social development. In this regard the Court noted in BP South-
ern Africa (Pty) Ltd v MEC for Agriculture, Conservation, Environment and
Land Affairs38 that ‘pure economic principles will no longer determine, in
an unbridled fashion, whether a development is acceptable. Development,
which may be regarded as economically and financially sound, will, in
future, be balanced by its environmental impact, taking coherent
cognisance of the principle of intergenerational equity and sustainable use
35
Liebenberg ‘The interpretation of socio-economic rights’ in Woolman et al (eds)
Constitutional law of South Africa (2005) 33-36.
36
See, eg, Hichange Investments (Pty) Ltd v Cape Produce Co (Pty) Ltd t/a Pelts
Products 2004 2 SA 393 (ECD).
37
Id 33-41.
38
2004 5 SA 124 (W).
204 (2008) 23 SAPR/PL
of resources in order to arrive at an integrated management of the

environment, sustainable development and socio-economic concerns. By
elevating the environment to a fundamental justiciable human right, South
Africa has irreversibly embarked on a road, which will lead to the goal of
attaining a protected environment by an integrated approach, which takes
into consideration, inter alia, socio-economic concerns and principles.’39
The duties to ‘promote and fulfil’ the rights in the Bill of Rights carry
the state’s obligation into the realm of positive fulfilment.40 The state
needs to take positive measures, legislative and other, to ensure a safe
and healthy environment for everyone in an equitable manner and to
ensure that the environment is protected. The state is also obliged to find
ways and means to effectively implement legislation dealing with
environmental protection and to ensure compliance with such legislation
and other protective measures. In this way section 24(b) ‘guides and
shapes legislative action, policy formulation and executive and admi-
nistrative decision-making’.
It is important to note, however, that section 24 can be distinguished
from socio-economic rights such as the rights to access to housing and
access to health in that it is not limited by the requirement for the state
to take measures, within its available resources, to achieve the
progressive realisation of the right. In this respect the obligations
imposed on the state by socio-economic rights are dependent upon the
resources available for such purposes, and the corresponding rights
themselves are limited by reason of the lack of resources.41 In theory the
omission of the paragraph within its available resources, to achieve the
progressive realisation of the right would imply that the state cannot rely
on budgetary constraints as a justification for not fulfilling its
constitutional duties regarding the environment. In practice, however,
the state may well be faced with a lack of resources to prevent pollution
or ecological degradation. In this respect, section 24(b) is further
qualified by the requirement of ‘reasonableness’ in that it requires
‘reasonable’ legislative and other measures to give effect to its
constitutional mandate. It may not be reasonable to demand state action
if resources are not available.
Section 24(b) has certainly been used as a ‘tool for political action’.
As environmental awareness has grown over the last decade, so has the
39
Id 144B–D.
40
Id 33-58.
41
Soobramoney v Minister of Health (Kwazulu-Natal) 1998 1 SA 765 (CC) para 11.
number of organisations engaged in ‘environmental lobbying’.42 These

groups and communities have in a number of instances relied on section
24(b) to enjoin to take action in instances where environmental health
or well-being were under threat or being endangered.
Is section 24(b) aspirational in nature?

In its judgment the Court refers to section 24 as a so-called second
generation or socio-economic right that imposes a constitutional imperative
on the State, and it does so ‘despite it aspirational form’.43 This statement
seems to suggest that not only section 24(b), but all socio-economic rights
are merely aspirational in form. This may simply have been an unfortunate
choice of words; however it is important to set the record straight.
The word ‘aspirational’ suggests a mere hope, dream or desire,
that is, that which we want but might never attain. This is clearly not
in line with the general interpretation of socio-economic rights as set
out above. The mandate stemming from section 24(b) and other socio-
economic rights arguably reaches far beyond hopes and dreams and
falls within the realm of real expectations. The Constitutional Court
has taken the view that, at a minimum, these rights can at least be
‘negatively protected from improper invasion’.44 Case law suggests
that the level or protection goes further than negative protection and
that the state can be obliged to ensure that it fulfils its positive duty
to give effect to the right.45
The duty in section 24(b) addresses, as suggested above, matters
affecting the very nature of human existence, clean air, safe water,
the availability of food, and healthy sanitation. Environmental
problems such as climate change and desertification threaten humans
in an indiscriminate way and present a threat to the very existence of
humankind. Constitutional entrenchment of environmental rights in
the form of a human right therefore serves as a basic condition for
42
Organisations like Biowatch South Africa, Earthlife Africa, Cape Town Ecology group,
Wildlife and Environmental Society of South Africa (WESSA), Friends of the
Pilanesberg, Koeberg Alert and Nelson Mandela Bay Local Environmentalists (NIMBLE)
actively engage in ongoing environmental lobbying. See also Petro Props(Pty) Ltd v
Barlow 2006 5 SA 160 (W) where an environmental organisation publicly opposed the
development of a fuel service station in a wetlands area.
43
Para 18.
44
Ex Parte Chairperson of the Constitutional Assembly: In re Certification of the
Constitution of the Republic of South Africa, 1996 1996 10 BCLR 1253 (CC) para 78.
45
The Grootboom (n 1) decision is the most notable decision in this regard.
206 (2008) 23 SAPR/PL
human existence. It is a duty to which the state must pay serious

consideration and make every attempt to realise. As such, section
24(b) goes beyond mere inspiration. The legislature has paid serious
attention to the positive duty created in section 24(b) and it has,
since the adoption of the Constitution, enacted and implemented a
number of statutes that attempt to protect environmental resources
and regulate harmful impacts on the environment.46
Conclusion
It was recently noted that the ‘role of the courts is especially
important in the context of the protection of the environment and
giving effect to the principle of sustainable development’.47 I have
also argued that the insertion of an environmental right into a
constitution elevates the importance of the environment and of
environmental protection and conservation, but that there is a need
for the development of sound jurisprudence on environmental rights,
specifically jurisprudence that defines section 24 in the context of the
specific economic and social conditions prevalent in South Africa.48
46
National Environmental Management Act 107 of 1998 (NEMA) gave birth to the
environmental framework legislation, and established a new form of environmental
regulation and environmental governance in South Africa. NEMA aims to:
• define overarching and generic principles in which sectoral-specific legislation is
embedded;
• enhance co-operative environmental governance amongst fragmented line
ministries; and
• provide for a broad flexible framework to address environmental issues and to
respond to changes in socio-economic and ecological parameters
Legislation addressing specific sectoral environmental concerns was enacted in areas
such as biodiversity, the National Environmental Management: Protected Areas Act
57 of 2004 (NEM:PAA), the National Environmental Management: Biodiversity Act 10
of 2003 (NEM:BA) and the National Forest Act 84 of 1998 (‘NFA’); air quality, the
National Environmental Management: Air Quality Act 39 of 2004 (AQA); protection of
marine resources, the Marine Living Resources Act 18 of 1998 (MLRA); protection of
water resources, the National Water Act 36 of 1998 (NWA) and the regulation of
mining and energy on the environment, the Minerals and Petroleum Resource
Development Act 28 of 2002 (MPRDA). Legislation dealing with waste management
is currently in the process of being drafted, the National Environmental Management:
Waste Management Bill 2006.
47
Fuel Retailers Association of Southern Africa v Director General Environmental
Management, Department of Agriculture, Conservation and Environment Mpumalanga
Province Case CCT 67/06 (unreported) para 102.
48
Feris ‘Constitutional environmental rights: An under-utilised resource’ Paper
presented at the 5th Annual IUCN Academy of Environmental Law Colloquium, Parati,
The judiciary, therefore, has a responsibility to assess and interpret

the environmental right and to give guidance on how we should apply
and adhere to the right.
In this respect, the importance of section 24 cannot be gainsaid. It
is a right that goes to the heart of the continued existence of
humankind. It therefore guarantees an environment that will not be
detrimental to the continued existence of this and future generations.
It does so by way of a justiciable right and not merely by directing the
state to endeavour to fulfil this obligation. Moreover, by way of
section 24(b) it places a specific legal obligation on the state to give
effect to this right by way of specific means. It should not merely
‘aspire’ to do so. Care should be taken, therefore, that section 24 and
especially section 24(b), is not interpreted in a manner that is
detrimental to the very essence of the right itself, namely, one that
places a positive obligation on the state to ensure an environment
that is not detrimental to health and well-being.
Loretta Feris49
University of Pretoria
Brazil June 2007. On file with the author.

49
LLB (Stell), LLM (Georgetown) LLD (Stell), Associate Professor of Law University of
Pretoria.
The challenge of legal pluralism
Fosi v Road Accident Fund [2007] JOL 19399 (C)
Introduction
Over the years indigenous African law has encountered an uphill
battle for recognition. In spite of the constitutional recognition of
indigenous law as part of the South African legal system, it still enjoys
the status of law only when it has been authorised by the State. Its
recognition is in accordance with practical rules, contained in
legislation, which determine when indigenous law may be applied,
when it should be regarded as acceptable (generally, when it is not
repugnant to western perceptions of what is moral and what is in the
public interest), how it should be ascertained, and what should
happen when there is a conflict with national law. In short, state law
pluralism (based on the superior status of western law) which has
existed since the Second British Occupation of the Cape in the early
Nineteenth Century, is still flourishing. In contrast, deep legal
pluralism, which is not dependent on the State’s recognition of
indigenous law and which is based on the equality of the legal
systems, is still largely denied. (On legal pluralism, see generally
Prinsloo ‘Pluralism or unification in family law in South Africa’ (1990)
CILSA 324 and ‘Regspluralisme’ (1994) TSAR 696ff; Griffiths ‘Legal
pluralism in Botswana’ (1998) Journal of Legal Pluralism 2ff; Van
Niekerk ‘Legal pluralism’ in Bekker et al (eds) Introduction to legal
pluralism in South Africa (2006) 5).
Both the courts and academia struggle to come to terms with the
existence of legal pluralism in South Africa. The general view appears
to be that the legal systems cannot coexist harmoniously and that
integration in a unified system is the only way forward. Yet the
unification of South African law is not an acceptable outcome, and,
in the long run, would not embody true progress. A unified South
African law can be achieved only where there is a total integration of
the different legal concepts, cultures and rules. In view of the
dominance of western law and western values in the South African

legal order as a whole, this would result in the eventual demise of
official indigenous law. However, it would not affect the continued
existence and unofficial application of living indigenous law. After all,
deep legal pluralism is a reality in South Africa – as in most other
Southern African countries – and is not dependent on State recognition
of the laws that are applied. Indigenous legal history abounds with
examples where living indigenous law continued to be applied,
sometimes in direct contravention of State legislation. Ndima (‘The
African law of the 21st century’ (2003) CILSA 326 at 341) aptly states
that where living indigenous law is applied, members of the
community find solutions ‘in the applicable narratives and
precedents, without looking over their shoulders to see if they are not
contravening some possible official policy’.
Furthermore, unification would eventually create an insurmountable
chasm between the unified official legal system and the living indigenous
law. In contrast, harmonisation (an active process through the inter-
vention of the courts, or the legislature, or both) and convergence (a
natural, spontaneous process) of western law and indigenous law both
imply that, whilst changes take place to remove overt discord between
the applicable legal systems, differences will remain, and the separate
legal systems will retain their own identity: essentially legal pluralism will
be endorsed. (For a detailed discussion of these concepts, as well as an
exposition of the differences in the western and indigenous legal
cultures, see Van Niekerk ‘The convergence of legal systems in Southern
Africa’ (2002) CILSA 308.)
Since indigenous law has been accorded a new status in the
constitutional democracy, the Legislature, the courts and universities
have increasingly attempted to incorporate indigenous law into the
South African legal system. While the Law Reform Commission has
accomplished much in harmonising indigenous law and the common
law, many of its attempts have resulted in legislation that facilitates
the unification of the legal system by adapting indigenous law to
western values. In some instances the adaptation has led to a
distorted law which is far removed from the true, living indigenous
law. A pertinent example of where indigenous law has been adapted
to western values is the Recognition of Customary Marriages Act 120
of 1998. (In this regard see Church ‘The convergence of the western
legal system and the indigenous African legal system in South Africa
with reference to legal development in the last five years’ (1999)
210 (2008) 23 SAPR/PL
Fundamina 8 at 13.) In this Act, the dominance of western values is

apparent in the imposition upon indigenous law of the antenuptial
contract, the western concepts of divorce and division of property. In
contrast, indigenous values have been marginalised in this Act. This
is evidenced by the fact that little consequence is attached to the
lobolo institution, which, despite urbanisation and modernisation, still
forms an integral part of indigenous cultural life. (See generally
Vorster et al Urbanites’ perceptions of lobolo: Mamelodi and
Atteridgeville (2000).)
It is nevertheless important to bear in mind that indigenous law is
not stagnant. Over the years, traditional indigenous laws have
adapted to the changing needs of society. Change may be effected
through a conscious process by the courts or legislature but, then, in
consonance with the values of indigenous culture and the underlying
postulates of that law.
The courts follow a dualistic approach. On the one hand, they
readily accept that indigenous law is an integrated part of the sources
model of South African law and as such an essential ingredient of
South African legal history. In Masiya v Director of Public Prosecutions
([2007] JOL 19790 (CC)), for example, the Constitutional Court had to
consider the constitutionality of the common law definition of rape.
The Court’s historical survey of the criminalisation of rape
demonstrates recognition of the three pillars upon which the South
African legal system rests: the civilian (Roman and Roman-Dutch), the
English and the indigenous African. This approach is in line with the
Constitutional Court’s position stated in Alexkor Ltd v The
Richtersveld Community (2004 5 SA 460 (CC) para 51): ‘It is clear,
therefore, that the Constitution acknowledges the originality and
distinctiveness of indigenous law as an independent source of norms
within the legal system’ and ‘indigenous law feeds into, nourishes,
fuses with and becomes part of the amalgam of South African law’.
On the other hand, however, the picture changes when pertinent
questions of indigenous law have to be addressed, especially when
that law has to be scrutinised against the Bill of Rights or weighed
against common law rights. All too often the courts have displayed an
indifferent attitude towards indigenous law and cultural institutions.
With alarming ease they have abolished, in the recent past, core
principles of indigenous law instead of implementing the available
constitutional tool of adapting that law to the imperatives of equality,
democracy and freedom. A disconcerting example is the majority
decision in Bhe v Magistrate, Khayelitsha (Commission for Gender

Equality as Amicus Curiae); Shibi v Sithole; South African Human
Rights Commission v President of the Republic of South Africa (2005
1 SA 580 (CC)), in which the principle of male primogeniture in the
indigenous law of succession was declared unconstitutional and
abolished. Furthermore, when interpreting legislation, indigenous law
is not always heeded and the common law often forms the point of
departure. Thus, in Nkosi v Bührmann (2002 1 SA 372 (SCA)), the
Supreme Court of Appeal refused to interpret ‘family life’ in the
Extension of Security of Tenure Act 62 of 1997 to include the values
underlying indigenous burial practices and religion. (In this regard
see, too, the decision of the Land Claims Court in Serole v Pienaar
2000 1 SA 328 (LCC); contra Dlamini v Joosten [2005] JOL 16179 (SCA)
in which the Court acknowledged the practice of burying deceased
family members near the family home as an indigenous cultural or
religious belief.) Generally, these decisions evidence a disregard for
the existence of deep legal pluralism and an intuitive reluctance to
accord equal status to indigenous law and the common law.
Only recently has the judicature started taking cognisance of living
indigenous law. In Bhe v Magistrate, Khayelitsha (Commission for
Gender Equality as Amicus Curiae); Shibi v Sithole; South African
Human Rights Commission v President of the Republic of South Africa
(supra) the Constitutional Court held that, ordinarily, courts should
develop indigenous law in line with the living law. Unfortunately, in
this case, it was found not to be a feasible option. In Ramoitheki v
Liberty Group Ltd t/a Liberty Corporate Benefits([2006] JOL 18075
(W)) and Nkabinde v Road Accident Fund ([2001] 3 All SA 611 (W)),
too, both following the seminal case of Mabena v Letsoalo (1998 2 SA
1068 (T)), the court stressed the importance of taking cognisance of
the living indigenous law. (See, too, Alexkor Ltd v The Richtersveld
Community(supra) in paras 52–54 and Mateza v Mateza [2005] JOL
14332 (Tk).)
Albeit an arduous and time-consuming enterprise, it is not
impossible to obtain information on the living indigenous law.
Academic writing on the living law is gaining importance. (See, eg,
Mqeke Customary law and the new millennium (2003) 113; Fishbayn
‘Litigating the right to culture: Family law in the new South Africa’
(1999) 13 International Journal of Law, Politics and the Family 147;
Mbatha ‘Reforming the customary law of succession’ (2002) SAJHR 259
269; Himonga and Bosch ‘The application of African customary law
212 (2008) 23 SAPR/PL
under the Constitution of South Africa: Problems solved or just

beginning?’ (2000) SALJ 306ff; Ndima The Law of commoners and
kings (2004).) Moreover, there exist a large number of theses and
dissertations on the living law that are based on field research, some
of which have seen the light in the past decade. Other publications of
empirical research are also available. (See, eg, Mbatha ‘Reforming the
customary law of succession’; Ndima The Law of commoners and
kings; Watney ‘Customary law of succession in a rural and urban area’
(1992) CILSA 378; Vorster et al Urbanites’ perceptions of lobolo.)
Importantly, many standard works on indigenous law take cognisance
of published empirical research.
It should be mentioned that the fate of indigenous law does not
always turn on any disregard for ‘the other law’ or a misunderstanding
of deep legal pluralism, but often on deficient knowledge of the
fundamental value systems of indigenous law and culture. Although
universities have stepped up training in indigenous law, there still
remains a marked lack of knowledge on the part of those who
administer justice and practice law.
The problem is enhanced by the fact that the face of the South
African judiciary (or, for that matter, legal practitioners, or academia)
still does not reflect the demography of this country. It is difficult for a
judge who does not share the norms, assumptions or experiences of the
community whose rules or institutions are under scrutiny and who has
only a superficial knowledge of substantive indigenous law, to interpret
a legal system which is largely different to the known western law and,
importantly, western legal culture, that is taught in much detail at all
South African universities. It is more likely that a black judge, who shares
the narrative framework of indigenous African culture, would deliver a
judgment that is synchronous with the values and basic principles
underlying indigenous law, than a judge who is not from an indigenous
African background and who does not have the benefit of inherent
knowledge of the fundamental principles of indigenous law and culture.
Indeed, as Ndima (‘The African law of the 21st century’ 326) observes,
‘the network of legal relationships that underlies African family law and
the law of succession, is part of a way of life the full understanding of
which depends on experience and participation’. (The minority judg-
ments of Ngoepe JP in Bührmann v Nkosi 2000 1 SA 1145 (T) and Ngcobo
J in Bhe v Magistrate, Khayelitsha (Commission for Gender Equality as
Amicus Curiae); Shibi v Sithole; South African Human Rights Commission
v President of the Republic of South Africa (supra) evidence this
fundamental intuitive knowledge of indigenous cultural institutions and

values. See, too, the judgment of Madlanga J in Bangindawo v Head of
the Nyanda Regional Authority; Hlantlalala v Head of the Western
Regional Authority 1998 2 SA 262 (Tk); Bangindawo v Head of the Nyanda
Regional Authority; Hlantlalala v Head of the Western Regional
Authority 1998 2 SA 262 (Tk). In the last case, Madlanga J (273) criticised
Roux J’s interpretation of the indigenous rule of male primogeniture in
Mthembu v Letsela 1997 2 SA 936 (T).) In the light of what has been said
above, the majority judgment of Langa J in Bhe was unexpected and
rather disappointing.
Against this backdrop, the judgment of Dlodlo J in Fosi v Road
Accident Fund ([2007] JOL 19399 (C)) should not come as a surprise.
In a truly progressive manner, the Court considered and applied
indigenous law mero motu, displaying intuitive knowledge of the
fundamental postulates of that system.
Facts
Fosi, an unemployed 58-year-old Xhosa woman, instituted a claim in her
personal capacity as mother and natural guardian of her late son Phumezo.
She claimed compensation from the first defendant, the Road Accident
Fund, as well as the second defendant, the executrix of her late son’s
estate. Her son had died in a motor vehicle accident, caused by the
negligence of the driver of a motor vehicle insured by the Fund. The Fund
conceded that the accident had been caused by the negligence of the
driver of the insured vehicle. Fosi averred that she was without any means
of support or maintenance and that Phumezo, who was not married, had
in fact supported her. The claim that she was indigent to the extent that
the deceased had a duty in law to support her was disputed.
The following evidence was placed before the Court to prove Fosi’s
indigence: She grew up in the rural Eastern Cape, had contracted a
customary marriage with her husband, and had four children. Her
husband was an alcoholic and had been unemployed since 1998. The
pension that he received was squandered principally on alcohol and
not used for the benefit of the family. Over the years, Fosi had been
variously employed for meagre allowances. The fact that she spoke
only Xhosa was the main obstacle to her obtaining proper
employment. She had often approached her family for help. In
accordance with her traditions, she also maintained her husband.
Phumezo started working towards the end of 1998 and had, until his
214 (2008) 23 SAPR/PL
death, sent his mother R1000 per month. In response to the question
why he sent the money, Fosi replied that he knew ‘where he was
coming from and who had given birth to him’. After her son’s death,
she received R250 from a provident fund. Her husband, too, died
subsequently. She applied for a Government grant, but was turned
down. At the time her claim was instituted, one of her daughters was
employed and gave her R600 per month. At that stage Fosi earned
only R160 per month as a washer woman for a school teacher.
Judgment
The Court came to the conclusion that the undisputed evidence of Fosi
had established, upon a balance of probabilities, that she was indigent
to the extent that her late son had a duty to support her. Her own
income was completely inadequate ‘not only to sustain her but also to
give her the modest additional succour she needed to preserve her
human dignity’ (para 15). In its decision the Court referred to several
cases dealing with claims against insurers by parents for the loss of
maintenance from their deceased children, in which the test for
‘indigence’ was set out. In Smith v Mutual and Federal Insurance Co
(1998 4 SA 626 (C)) the Court defined indigence as being in ‘extreme
need or want for the basic necessities of life’; in Wigham v British
Traders Insurance Co Ltd (1963 3 SA 151 (W)) indigence was coupled with
the parent’s ‘station in life’. In the latter case reference was made to
the seminal case on this point, namely Oosthuizen v Stanley (1938 AD
322) in which Roman-Dutch authorities were relied on: Voet (25.3.4 and
25.3. 25.3.8) and Van Leeuwen Censura forensis (1.10.4 and 1.10.5). The
Court also cited Petersen v South British Insurance Co Ltd (1967 2 SA 236
(C)) and Anthony v Cape Town City Council (1967 4 SA 445 (A)) where the
parents failed to prove that they were indigent and that their children
consequently had a duty to maintain them.
In Fosi, the Court concluded (para 13) that the crux of the test was
whether the parent could prove that ‘he or she was dependent on the
child’s contribution for the necessities of life’ and that a parent’s
‘station in life’ determines what may be regarded as the necessities of
life. In this regard the Court referred to Burger v Padongelukkefonds
(unreported Free State judgment of Schreiner AJ, case no 2223/1999)
and the decision of the Appellate Division in Van Vuuren v Sam 1972 2 SA
633 (AD). Relying on Khan v Padayachee 1971 3 SA 877 (W), the Court
stated further that the liability of other siblings to provide for a parent
has no effect on a claim against one of them (para 15). The fact,
therefore, that Fosi’s daughter provided her with some income was
irrelevant to her claim in respect of her son’s maintenance. So, too, it
was irrelevant that in future her younger daughter could possibly secure
employment and might be able to provide for her.
The conclusions were fairly straightforward, but the Judge,
unexpectedly, did not bring his judgment to a close at this juncture.
Without any apparent reason and without any of the parties having
relied on indigenous law and without any earlier reference to that law
in the judgment, Mr Justice Dlodlo matter-of-factly considered the
indigenous law position. He gave an extensive account of the history
of the recognition of indigenous law in South Africa as well as an
exposition of maintenance in indigenous law.
The Judge summarised the indigenous law position regarding
maintenance as follows: A parent has a duty in terms of ‘the South
African legal system, but custom also obliges such a parent’ to
provide support and education to his or her child. A child who is
financially able, must support his or her needy parents. A child in
indigenous African tradition does not forget where he or she comes
from and, without being told, will honour the obligation to support a
parent. The fact that the parent-child relationship is regarded as
extremely important is typical of the inclusive, participatory
character of indigenous communities which cherish family life. The
Judge pointed out that this principle of indigenous law was evidenced
by Fosi’s apparent puzzlement when the question was put to her as to
why her son Phumezo had sent her money.
The Court further stated that it was ‘an actionable wrong’ (para
17) if a child, who is financially able to do so, fails to support a needy
parent. Moreover, it is against public policy and the parent has a civil
claim in the ‘traditional courts’ against such a child. Rather than
going to court, a parent could alert family members of the child’s
failure to support him or her and the child ‘would be ostracised and
be looked down upon as a person who has no ubuntu’ (para 17).
Ridicule and ostracism are very effective legal sanctions in indigenous
law and this is not surprising, given the importance of an individual’s
position as member of the community. Having explained this position,
the Court observed that it was rare for a child to neglect the duty to
support a needy parent because ‘every African child is born with this
duty consciousness never to forget his/her roots’ (in para 17).
Dlodlo J then proceeded to relate the historical development of the
216 (2008) 23 SAPR/PL
State recognition of indigenous law in South Africa, at the same time

also addressing the general lack of knowledge of that system of law
and indigenous cultural institutions as well as the hiatus in indigenous
law training at our universities (paras 18-25). He concluded his
discussion with the comment that the new constitutional dispensation
brought an end to this ‘unfortunate history’ and that indigenous law
‘should not only be tolerated ... but it must be recognised, applied
and married to the existing Roman-Dutch legal system currently in
place in the Country’ (para 23).
Comments
As intimated earlier, Dlodlo J’s consideration, and knowledge, of
indigenous law and the fundamental postulates which underlie that law
and culture did not come as a surprise. However, it is unusual for a court
simultaneously to apply both the common law and indigenous law.
The Judge here relied on his residual knowledge of indigenous law
without any indication of whether the legal rules were readily
ascertainable, or with sufficient certainty, and without referring to
any written materials in this regard. (Indeed, it is somewhat uncertain
what exactly he meant by ‘actionable wrong’ in para 17.) For
example, in what court would this delict be ‘actionable’? A cursory
look at Myburgh’s ‘Reflection on delict among the indigenous peoples’
in his Papers on indigenous law in Southern Africa (1985) 13ff, shows
that traditional indigenous conceptions of delict differ vastly from
western conceptions. It is also not sure whether the traditional
indigenous position is still consonant with the living indigenous law
that is currently applicable in modern indigenous societies.)
The Court in Fosi further applied indigenous law without any of the
parties having relied on that system and after the Court had already
come to a cogent conclusion, based on the common law (in this
instance Roman-Dutch law as applied by the courts), namely that the
Road Accident Fund was liable.
A perusal of recent decisions yielded only one other case where a
court applied indigenous law mero motu, but that decision was
reversed on appeal. In Maisela v Kgolane NO (2000 2 SA 370 (T)), in an
appeal from a Magistrate’s Court, the Johannesburg High Court found
that the magistrate had erred in applying indigenous law where no
mention had been made in the papers before the Court, either
directly or indirectly, that indigenous law should apply. In this case a
contract of sale was in issue and the Court stated that ‘it was wrong
to adjudicate on a sale that was not governed by indigenous law
according to the principles of indigenous law merely because the
parties were both black’ (376E – F/G).
Interestingly, in Fosi, race was one of the factors that compelled
the Court to apply indigenous law. Its justification for considering and
applying indigenous law was simply that, in terms of the Constitution,
all courts ‘must apply customary law where appropriate’, subject to
the Constitution and existing legislation dealing with indigenous law;
and that courts are ‘constitutionally enjoined to develop customary
law and bring it to the same level reached by the common law’.
Dlodlo J further stated (para 16) that since the plaintiff and the
deceased were ‘African (Black)’ persons, ‘I fail to see why must I (sic)
not apply customary law that governed them’.
However, Fosi may be distinguished from Maisela in that the former
case did not involve a prior transaction and that the duty of support
of an indigent parent was known in both the common law and
indigenous law.
The recognition of indigenous law in terms of section 211(3) of the
Constitution of the Republic of South Africa, 1996, which enjoins the
courts to apply indigenous law ‘when that law is applicable, subject to
the Constitution and any legislation that specifically deals with
customary law’, read together with section 1(1) of the Law of Evidence
Amendment Act 45 of 1988 which states that any court may take judicial
notice of indigenous law in as far as it is readily ascertainable with
sufficient certainty’, has been variously interpreted. In Thibela v Minister
van Wet en Orde (1995 3 SA 147 (T) 150), Van Dyk J declared that on the
evidence there existed not only ‘’n reg ... om die inheemse reg toe te
pas nie, maar ook ’n verpligting’. In contrast, Bennett (‘The conflict of
laws’ in Bekker et al (eds) Introduction to legal pluralism in South Africa
(2006) 17) and Olivier et al (LAWSA: Indigenous law vol 32 first reissue
(2005) 17) is of the view that while it is mandatory to take judicial notice
of indigenous law when it is readily ascertainable with sufficient
certainty, the courts still have a discretion to apply that law in terms of
the existing choice of laws rules which are contained in statutes or which
have crystallised in judicial decisions over the years. In essence, these
rules boil down to the question of which legal system ‘a reasonable
person [would] consider most suitable for the case’, determined with
reference to the parties’ expectations (Bennett ‘The conflict of laws’
22).
218 (2008) 23 SAPR/PL
In principle, in Fosi, there was nothing wrong in choosing

indigenous law as the applicable system to determine the duty of
support. On the contrary, on the evidence, it may even appear the
most suitable system of law. However, it is apparent that the Court
never intended to choose between the potentially applicable systems.
The existence of legal pluralism and the potential applicability of both
the common law and indigenous law posed no choice of laws for the
Court. Thus, after a detailed account of the child’s legal duty in
indigenous law to maintain a needy parent, the Court concluded that
there was no reason ‘why consideration should not be given to this
portion of customary law in the determination of liability of the Road
Accident Fund’ and, further, ‘that even on this consideration, the
Road Accident Fund cannot escape liability in this matter’ (para 25).
The question arises as to which course the Court would have
followed had there been a conflict between the two systems of law.
While it is commendable that our courts apply indigenous law mero
motu, where it is ascertainable with sufficient certainty and where it
is found to be the appropriate legal system to apply, without it having
to be alleged by one of the parties, it is surely impractical to apply
both systems simultaneously – that is, unless there is a drive to unify
the legal systems and to do away with legal pluralism.
Conclusion
The fact that indigenous law is afforded proper recognition does not
mean that the legal systems comprising South African law have to be
integrated in a unified system. It is only where legal pluralism no longer
exists, that the choice of laws becomes obsolete. While legal pluralism
still prevails, rules directing the courts in the choice of laws remain
essential and it is imperative for a court to make the appropriate choice.
Moreover, should the established rules pertaining to the choice of laws
not be followed, legal certainty will be jeopardised.
As is to be expected in a country where legal pluralism exists, the
courts in South Africa have to draw upon a complex sources model.
The potential applicability of various legal systems creates a tension
which often assumes a political hue when indigenous law is at issue,
especially when indigenous law has to be scrutinised against the
Constitution; or when the Courts are faced with a situation where
both indigenous law and the common law are potentially applicable
and there is a conflict not only between the two systems, but
especially between the values that underpin them. Fosi illustrates

that the values underlying these legal systems are not necessarily
always in conflict and that the harmonious coexistence of indigenous
law and the western law is certainly attainable.
In contrast, the cases dealing with ownership of land provide a
good example of how divergent indigenous and common law values
may be, and it is apparent from recent decisions that the common law
concept of ownership still takes precedence when it has to be
weighed up against the indigenous concept of ownership. (This has
been evidenced in Bührmann v Nkosi and in Richtersveld Community
v Alexkor Ltd 2003 6 BCLR 583 (SCA). See, too, Mostert and
Fitzpatrick ‘Living in the margins of history on the edge of the
country’ – Legal foundation and the Richtersveld community’s title to
land’ (2004) TSAR 498. Other cases where the clash of values came to
the fore, are those that had to be decided under the Restitution of
Land Rights Act 22 of 1994: Prinsloo v Ndebele-Ndzundza Community
2005 6 SA 144 (SCA); Alexkor Ltd v The Richtersveld Community 2004
5 SA 460 (CC); and, most recently, Haakdoornbult Boerdery CC v
Mphela[2007] JOL 20002 (SCA).)
Legal pluralism cannot be ignored. Likewise, the choice of an
applicable legal system in suitable circumstances cannot be ignored,
but since the challenge is not to establish a single unified legal
system, it is important to achieve their harmonious coexistence. In
the same way that acculturation takes place where people of
different cultures live together, natural convergence is inevitable
where different legal systems (law being but an aspect of culture) are
recognised and applied. The fact that there exists a common constitu-
tional yardstick only enhances this likelihood. Ideally there should be
cross-fertilisation. It is gratifying to note that the Constitutional Court
is increasingly taking note of the underlying values of indigenous law
in developing the common law. Recently, in Dikoko v Mokhatla (2007
1 BCLR 1 (CC)) Sachs J, in an enlightening minority judgment, rooted
for the use of the values of ubuntu and the concomitant notion of
restorative justice to develop the existing concept of monetary
compensation for defamation by shifting the focus to reconciliation of
the parties involved. Importantly, Sachs J focused on adapting the
common law remedy, not supplanting it with indigenous law remedies:
What is needed, then, is more flexibility and innovation concerning the
relation between apology and money awards. A good beginning for
achieving greater remedial suppleness might well be to seek out the
220 (2008) 23 SAPR/PL
points of overlap between ubuntu–botho and the [Roman-Dutch law

concept of] amende honorable, the first providing a new spirit, the
second a tim e-honoured legal format (para 121).
Gardiol van Niekerk

University of South Africa
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Vonnisbesprekings/Case notes

Judicial recognition of substandard medical treatment in South African

The evolution of the operation of the doctrine of estoppel in public

The socio-economic nature of section 24(b) of the Constitution –

The challenge of legal pluralism

specifically in view of vastly improved medical facilities and the exchange

shot his 28-year-old girlfriend, Ms Thandi H Lamani, at least twice.

while, on the other, apologising for inadequate treatment and facilities,

upon, the English case of R v Smith [1959] 2 QB 35, dismissed this

impute legal liability on the supposition that efficient and reliable

borne out by disturbing recent statistics pertaining to the deaths of

Improper medical treatment/medical negligence,

without straw’. In a purely elementological construction for criminal

Professions Council of South Africa for professional misconduct and/or

favour of the medical profession? What about constitutional equity in the

A suggested principled approach

negligence to ‘overwhelming or gross’ and by ruling that because the

By the same token, the reproachable accused in Tembani would

rights, not only demands a principled approach but ultimately serves to

Facts of the case

Details and operation of the contract

The application of the doctrine of estoppel in

Comment on the judgment

estoppel is that a person who by either representation or statement

532I ), ‘[a]n invalid administrative act may be validated by the failure of

(Wiechers Administrative law (1985) 76). In the celebrated case of

Estoppel and administrative law

claiming the charges, while the plaintiff excepted on the basis to

The defendant municipality’s argument

The question of interpretative methodology

inter alia, in the judgment of O’Regan J in African Christian

intention’, since a legislature is a composite body and not an individual

into effect, where the traditional approach to interpretation has been

The literal theory and methodology is associated with the

Covenant on Economic, Social and Cultural Rights (ICESR),5 for example,

limit the interpretation of section 24(b) in future. This note analyses

contended that the proposed development was inconsistent with the

the activity undertaken by the applicant is covered by ss 22(1) and 21(1).

empower competent authorities to take steps to prevent ecological

Some thoughts on the judgment

duty is confirmed by the National Environmental Management Act25

Directive principles of state policy

It is therefore clear that fundamental rights cannot be equated to

Is section 24(b) a socio-economic right?

of resources in order to arrive at an integrated management of the

number of organisations engaged in ‘environmental lobbying’.42 These

Is section 24(b) aspirational in nature?

human existence. It is a duty to which the state must pay serious

The judiciary, therefore, has a responsibility to assess and interpret

Brazil June 2007. On file with the author.

dominance of western law and western values in the South African

Fundamina 8 at 13.) In this Act, the dominance of western values is

decision in Bhe v Magistrate, Khayelitsha (Commission for Gender

under the Constitution of South Africa: Problems solved or just

fundamental intuitive knowledge of indigenous cultural institutions and

State recognition of indigenous law in South Africa, at the same time

In principle, in Fosi, there was nothing wrong in choosing