n Stellenbosch Law Review = Stellenbosch Regstydskrif - The contract/delict interface in the Constitutional Court

Volume 25, Issue 3
  • ISSN : 1016-4359
  • E-ISSN: 1996-2193



This note analyses the judgment of the Constitutional Court in 2014 3 SA 394 (CC), which held a private security company liable concurrently in contract and delict after one of the guards in its employ mistakenly allowed armed robbers, masquerading as police officers, into the applicants' residence where they committed theft and assault. The case is a good example of a permitted by South African law and therefore provides an opportunity to reconsider the contract/delict interface, particularly in the context of delictual claims against companies who provide security services in terms of contracts. It is argued that the Constitutional Court's judgment should be welcomed but that two comments are nevertheless warranted. First, the Court's reasoning is consistent with a modern trend, when the question of wrongfulness is considered by our courts, to emphasise open-ended policy norms and to underemphasise argument by principled analogy from past or hypothetical cases where legal duties in delict have been or would be imposed or denied. Our courts should give greater weight to arguments from principled analogy in this context. Second, although the Court does not engage with the point explicitly, its decision is reconcilable with the sound principle of South African common law that novel legal duties in delict should not be imposed if they have no basis independent of the terms of a simultaneously-binding contract and would therefore effectively replicate a contractual duty but instead be owed to third persons not party to the relevant contract.

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