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Fundamina

On-line version ISSN 2411-7870
Print version ISSN 1021-545X

Abstract

KLEYN, Duard  and  ZITZKE, Emile. The omissions in Oppelt. Fundamina (Pretoria) [online]. 2018, vol.24, n.2, pp.58-81. ISSN 2411-7870.  http://dx.doi.org/10.17159/2411-7870/2018/v24n2a4.

In this article, we explore the relationship between the legal historical method and the constitutionally transformative approach to the study of the South African private law. For this purpose, we provide an analysis of the decision in Oppelt v Head: Health, Department of Health Provincial Administration: Western Cape 2016 (1) SA 325 (CC). In that case the claimant suffered a spinal injury during a rugby match and claimed damages on the basis of various omissions of medical professionals who failed to treat him timeously. These omissions lead to the claimant becoming quadriplegic. A legal historical analysis is conducted on the Aquilian liability for omissions and how the law related to omissions has developed in modern South African law. Thereafter the transformative constitutional approach to the South African private law - and more specifically the South African law of delict - is taken up. We conclude by considering the omissions in the Oppelt case, not only in the sense of conduct, but also in the sense that the Supreme Court of Appeal omitted to consider relevant constitutional considerations and the Constitutional Court omitted to thoroughly grapple with the common-law principles related to the case.

Keywords : Delict; omissions; wrongfulness; legal historical method; transformative approach to private law.

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