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74 Whose Fault is it Anyway? A Reflection on the Interpretation of Section 1(1)(A) of the Apportionment of Damages Act (No. 34/1956) as Amended Tobias J.G. Louw Professor, Department of Philosophy, University of Fort Hare Jacques Pienaar Senior Lecturer, Department of Private Law, University of Fort Hare This paper demonstrates the hermeneutical dimension of decision making in law with specific reference to the application of the first section of the Apportionment of Damages Act because of the divergent interpretations found in the application of this section in reported cases. These disparities raise critical questions about theoretical assumptions regarding interpretation as such. A reflection on the philosophic concept of interpretation confirms the need to critically re-examine existing interpretation practices. It is submitted that future decisions concerned with fault and the apportionment of damages take cognizance of a hermeneutical framework, which is more consistent with the Constitution of the Republic of South Africa, and thereby advance the cause of justice. The hermeneutical method of analysis is used to disclose the assumptions and meanings underlying interpretative practices in relation to the issue of the apportionment of damages, as well as to show the potential of mediating between conflicting arguments on this matter. 1 INTRODUCTION Restorative justice ensures that when damage has been caused by someone’s blameworthy conduct, the party at fault will be obliged to make good that loss. This legal norm is objectively expressed and codified, and therefore widely accepted as the basis of the social codes of morality, civil law, and international law. However, because these social codes protect different interests and advance disparate values, each will differ in what it regards as damaging and blameworthy conduct. Furthermore, each code will rely BA, Hons. BA, MA (Stellenbosch), D Litt et Phil (Fort Hare). BA, LLB (Stellenbosch), LLM (Natal).

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74

Whose Fault is it Anyway? A Reflection on the Interpretation

of Section 1(1)(A) of the Apportionment of Damages Act (No.

34/1956) as Amended

Tobias J.G. Louw

Professor, Department of Philosophy, University of Fort Hare

Jacques Pienaar

Senior Lecturer, Department of Private Law, University of Fort Hare

This paper demonstrates the hermeneutical dimension of decision making in law with

specific reference to the application of the first section of the Apportionment of Damages

Act because of the divergent interpretations found in the application of this section in

reported cases. These disparities raise critical questions about theoretical assumptions

regarding interpretation as such. A reflection on the philosophic concept of interpretation

confirms the need to critically re-examine existing interpretation practices. It is submitted

that future decisions concerned with fault and the apportionment of damages take

cognizance of a hermeneutical framework, which is more consistent with the Constitution

of the Republic of South Africa, and thereby advance the cause of justice. The

hermeneutical method of analysis is used to disclose the assumptions and meanings

underlying interpretative practices in relation to the issue of the apportionment of

damages, as well as to show the potential of mediating between conflicting arguments on

this matter.

1 INTRODUCTION

Restorative justice ensures that when damage has been caused by someone’s

blameworthy conduct, the party at fault will be obliged to make good that loss. This legal

norm is objectively expressed and codified, and therefore widely accepted as the basis of

the social codes of morality, civil law, and international law. However, because these

social codes protect different interests and advance disparate values, each will differ in

what it regards as damaging and blameworthy conduct. Furthermore, each code will rely

BA, Hons. BA, MA (Stellenbosch), D Litt et Phil (Fort Hare).

BA, LLB (Stellenbosch), LLM (Natal).

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on different rules to determine how blame is to be imputed and which interests are to be

protected. Therefore, for example, morality and the civil law will, for the above reasons,

allocate culpability very differently when assessing a person’s conduct.

We contend that the effort to make sense of conflicting meanings, with a view to resolve

conflicts of interpretation and understanding – whether in law, politics, morality, science,

or everyday life – could be decisively assisted by insights from the theory of the rules of

interpretation of meaning, or hermeneutics.1

The process of how different social codes determine fault will be explored below. It is

further intended to show how important it is that the rules applied by social codes must be

well defined so that they can be differentiated. This would diminish the possibility of

either confusing or conflating the rules to be applied in establishing and apportioning

fault when the same conduct can be evaluated by more than one code. In the law of

delict, for example, no one is obliged to help a person who has been injured if there is no

legal obligation to do so. However, in the context of some moral codes, a person who

voluntarily assists an injured person is regarded as doing good. So, for example, in the

familiar Biblical story of the Samaritan2 who helps the wounded Israelite, a member of a

group he despises, is praised for being good. If, however, he had not helped the injured

Israelite, his omission would have been deemed morally culpable. However, the latter

judgment would be forthcoming from a Hebrew perspective, and would most likely have

been viewed in a contrary way by Samaritan values, since the Jews usually had no

dealings with Samaritans.3

These differences in determining fault illustrate the distinctions between morality and

law, a difference that is rooted in the respective interests and values that each social code

seeks to protect. It is thus of cardinal importance that in the process of adjudication, the

interests and rules which apply to each code are well defined so as to avoid confusion.

1 Philosophical hermeneutics is the general theory of the rules of the interpretation of meaningful forms, in

distinction from the respective “regions” of hermeneutical practice, namely religious, legal, and literary

hermeneutics. Cf fn 51 below. 2 Luke 10:33-37.

3 John 4:9.

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1(1)(A) OF THE APPORTIONMENT OF DAMAGES ACT (NO. 34/1956) AS AMENDED

The interests protected by morality and the law of delict are usually the same, but the

rules used to determine fault often differ. By confusing the rules to be applied, fault can

be incorrectly allocated as seen in the omission discussed above. If the rules of morality

were applied in a legal claim by the Israelite instituted against the Samaritan for his

failure to aid him, then it would be held that fault and liability be attributed to the

Samaritan. According to the rules of delict, however, no fault would be attributed to him

for this omission. This illustrates how judgments that contradict each other can be made

when the rules of one social code are used to determine fault in another social code. It

also shows that in order to prevent the confusion and injustice referred to above, a sound

understanding of how the concept of fault is interpreted and applied in the context of each

social code is needed.

Similarly, the social codes of national and international law allocate fault and liability

differently. In the domain of national law, no one can be criminally charged under a law

that had not been promulgated at the time when the act complained about was

committed.4 To punish anyone retrospectively is in conflict with the principle of legality

and is based on the principle that a person must be aware of the illegality of their act at

the time when the harmful act was perpetrated, and on the grounds of fairness. This

equitable rule is not always upheld in the sphere of international law. After World War II

some high-ranking German Wehrmacht officers were tried and found guilty under laws

which had not been part of the German legal system when the crimes they were charged

with were committed. The rules applied by national law to allocate fault or guilt are

clearly not the same as those applied by international law. This happens because the

interests and values that these two codes uphold differ. The rules to allocate fault would

thus also differ when the rules or norms of any one of these social codes are either

confused or conflated when blame could easily be incorrectly allocated, thereby causing

an injustice.

After World War II, the Allied powers implemented a “de-Nazification” programme that

every German had to undergo. This was done to prevent the atrocities committed during

4 S 35(3)(l) & (n) of Act 108 of 1996.

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the war being repeated and because every German was deemed responsible for the

conduct of the Nazis. Prominent opponents of the Nazi regime objected to this

programme. They stated that it opened a floodgate that would allow personal hatred to

masquerade as civic virtue, and to hold that each individual German was guilty of the

crimes committed in concentration camps and foreign lands was untrue and unjustified.

At this time, Pope Pius XII had declared that “it is wrong to treat someone as guilty

whose guilt cannot be proved, only because they belong to a certain community”.5 This

was said to prevent further injustice.

The realization that the cultural differential will unavoidably continue to effect the

interpretation of surface meanings applies to all levels of social, economic and legal

interaction, and even more so in today’s multicultural societies. Trompenaars6 offers

ample evidence of this. He shows by means of comprehensive empirical studies that even

in seemingly similar cultural contexts (e.g. of the European Union), the clash between

implicit core value systems are brought to the foreground whenever the interpretation of

meanings on the external, explicit level (such as artefacts, products, services, rules and

codes) are questioned and become the object of serious debate.

Similarly, in philosophical anthropology there are in-depth debates about the meaning of

fault and how these are more than often abstracted out of rational debate. In spite of the

appearance of a highly abstract debate, these core arguments provide extensive

orientation and substance to more superficial discussions on all related issues. An

example is provided in the bulky trilogy on the philosophy of the will by Paul Ricoeur, to

rethink the existentialist concepts of choice, motive, decision, action, fault, fallibility, and

evil in relation to the respective human faculties of willing, thinking, and feeling.7 This

redirection of thinking about the fault, for instance, from the perspective of the

5 Burleigh Sacred Sources (2006) 302.

6 Trompenaars Riding the Waves of Culture – Understanding Cultural Diversity in Business (1994) 22-25.

7 Ricoeur’s trilogy consists of three interrelated books, namely Freedom and Nature: The Voluntary and

the Involuntary (1950), Fallible Man (1960), and The Symbolism of Evil (1960) – the dates referring to

the original French publications. His many later works such as The Rule of Metaphor (1978) and Time

and Narrative (1990) build on the same core insights. Ricoeur is internationally acknowledged as one of

the most influential philosophers of the second half of the twentieth century.

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hermeneutics and phenomenology of the interpretation of symbolic meaning, opens the

door to the narrative redesigning8 of all the assumptions we have about the

“linguisticality” of our understanding of our lifeworld. Ricoeur shows with impunity that

human finitude and the tendency to err (commit faults), can never be justifiably reduced

to a harsh set of parameters such as motive-decision-action, but needs to take account of

the ethics of fallibility as well as the detours on which the symbolic of evil takes

consciousness. He states, “Man can be evil only in accordance with the lines of force and

weakness of his functions and destinations.”9

The above references make it evident that the concept of fault can be interpreted in

divergent ways. This article intends to show that the courts, like the social codes

discussed above, have interpreted fault in different ways when faced with disputes where

fault must be apportioned between two or more parties. A careful analysis of fault, as

established in the law of delict, is thus essential to gain an insight into the logic of its

application. It is submitted that the disciplines of philosophy will aid the legal process to

determine and apportion both fault and liability. As seen above, injustice can occur when

the rules of one social code are conflated with the rules of another. These disciplines will,

furthermore, aid the legal process by defining and differentiating those interests that the

law protects in contrast to those upheld by other social codes. This article will critically

discuss some court decisions to illustrate this and suggest that hermeneutical philosophy

can alleviate many of the problems encountered when applying the section that

apportions fault and liability in delictual claims for damages.

Before legislation regulated the process of apportioning fault when more than one party

had contributed to the damage, which led to the dispute, the legal rule was that the party

who had the last opportunity to prevent the damage forfeited their right to claim any

8 This refers to the rising – and today still dominating – influence of hermeneutic and linguistic philosophy,

structuralism, and deconstruction during the latter parts of the twentieth century. 9 Ricoeur Fallible Man (1966) 220. It should be noted that “evil” is understood in a much wider context

than the mere religious. Fallibility is paradoxical in that it refers to both the locus and capacity of a finite

being to commit wrong in relation to how the latter is posited – the latter term being a key in

understanding the relative nature of all objectified codifications of whichever set of moral values. Sup.

223-224.

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compensation.10

This rule led to inequitable results and the Apportionment of Damages

Act11

was promulgated to rectify this. The “last opportunity rule” was abolished in terms

of section 1(1)(b) of the Act. This enabled courts to determine the respective degrees of

fault of the plaintiff and the defendant, and thereafter apportion liability in accordance

with section 1(1)(a) of the Act.12

This section would clearly only apply when more than

one party contributed to the damage that caused the legal dispute. The Act also allows a

court to allocate fault and liability on the grounds of vicarious liability.13

A plaintiff’s claim for damages is diminished to the extent that a court deems just and

equitable after considering the degree by which the claimant and defendant are held to be

delictually at fault. The degree of fault of each party who contributed to the damage

would be expressed as a percentage. The concept of fault, as applied within the context of

the Act, will be discussed below. The question of moral blame will however not be

considered, for the reason of firstly narrowing down the discussion, and secondly because

the interests protected by the law are not the same as those upheld by morality.14

2 DISSIMILAR APPLICATIONS AND DIVERGENT INTERPRETATIONS

OF FAULT IN RESPECT OF THE APPORTIONMENT OF DAMAGES

ACT

Since the courts have not applied the guidelines for determining fault in a consistent

manner, the question to be asked is whether these divergent applications constitute a

conflict of interpretations. When adjudicating cases where the Act was applied to

determine and apportion fault, some courts have relied on a literalist and others on a

contextual interpretation to justify the decisions they made. This has caused some writers,

referred to below, to comment that legal uncertainty has been created about the

application of the Act and section. The uncertainty also relates to the question of whether

10

Coetzee v Van Rensburg 1954 SA 616 (A). 11

Act 34 of 1956 (hereafter referred to as “the Act”). 12

Hereafter referred to as “the section”. 13

Becker v Kellerman 1972 2 172 (T). 14

Cape Town Municipality v Bakkerud 2000 3 1049 (SCA) 1054-1055.

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1(1)(A) OF THE APPORTIONMENT OF DAMAGES ACT (NO. 34/1956) AS AMENDED

fault includes intent in section 1 of The Act.15

It is possible that the 1996 Law

Commission wished to limit confusion about this concept when it recommended that the

word “fault” in the context of the Act be replaced by the words “negligent conduct”.16

The rules used to determine and apportion the different degrees of fault of each party who

contributed to the damage were laid down by Thompson J.A. in South British Insurance

Company Ltd v Smit.17

Here the court held that, having determined the degree by which a

plaintiff’s conduct deviated from that of a reasonable person, their fault would be

expressed as a percentage. It was further held that the figure arrived at after subtracting

the percentage of the plaintiff’s fault from 100% would be the percentage of the

plaintiff’s fault, because the two percentages added together would amount to 100%. A

simple arithmetical calculation would thus determine the defendant’s degree of fault. This

method for apportioning fault was again applied and followed in the later Appeal Court

decision of AA Mutual Insurance Association Ltd v Nomeka.18

This raises the simple but

critical question of how a defendant’s delictual fault can be determined by using an

arithmetic calculation and not applying the rules of the law of delict to establish the

defendant’s delictual fault. However, in the Appeal Court decision of Kruger v Coetzee,19

the degrees of fault of both plaintiff and defendant, who had both contributed to the

damage, were determined by applying the rules of delict to each party separately. This

judgment was given four years after the decision of South British Insurance Company Ltd

v Smit,20

thereby creating a new method to apportion fault in cases falling within the

ambit of the section. By following the arithmetical method to establish the defendant’s

degree of fault, the Nomeka21

judgment ignored the rules of judicial precedent when the

court did not follow the method to determine fault as laid down in Kruger v Coetzee.22

This was done without giving reasons. It is submitted that to use delictual rules to

establish a defendant’s fault is accepted legal practice and, with respect, the honourable

15

Pretorius JT Medewerkende Opset as ‘n Verweer / Absolute Verweer vir Deliktuele Aanspreeklikheid

(Unpublished LLM thesis University of Cape Town 1977). 16

S.A. Law Commission Discussion Paper 67 1996, 27 37. 17

South British Insurance Company Ltd v Smit 1962 3 SA 826 (A) 835. 18

AA Mutual Insurance Association Ltd v Nomeka 1976 3 SA 45 (A) 55-56. 19

Kruger v Coetzee 1966 2 SA 428 (A) 430. 20

See fn 9. 21

See fn 10. 22

See fn 18.

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court erred by applying the arithmetic method to establish a defendant’s fault. Because a

person’s delictual fault and liability is, with few exceptions, based on their negligence or

intent, it is evident that by evaluating their conduct, and not another’s, that their fault is

determined. It is therefore submitted that to determine a defendant’s fault by relying on

the plaintiff’s conduct is not only unfair but contrary to the basic principle that each

person is personally liable for their own wrongful and blameworthy conduct.

The authors Van der Walt and Midgley support this mechanical application of the section

under discussion. According to their interpretation, the section does not stipulate that a

comparison be made between the degrees of fault of the plaintiff and the defendant or any

other parties. They also state that this section does not lay down that the conduct of the

defendant and other parties be separately evaluated according to delictual principles to

apportion their respective degrees of fault. The learned authors consequently maintain

that a plaintiff’s claim will be reduced by the percentage that the plaintiff was at fault,23

and that the degree of delictual fault of all other parties would be determined by the

degree that the plaintiff was at fault. As stated above, to attribute fault to a defendant by

only using the degree of the plaintiff’s fault, is to hold the defendant liable on the basis of

conduct which was not the defendant’s, and over which he had no control. This is in

conflict with delictual principles and is neither fair nor equitable. For these reasons, it is

submitted that as a legal method to establish fault and apportion liability it is seriously

flawed and should not be applied.

In the case of Jones NO v Santamversekeringsmaatskappy Bpk, the Appeal Court was

again faced with the question of how fault was to be apportioned when the plaintiff and

the defendant had both contributed to the damage.24

The honourable court first evaluated

the conduct of the plaintiff and defendant separately within the context of delictual

principles. The ratio between the respective degrees of fault of each party was then

calculated in order to establish the percentage of fault that could be attributed to the

defendant. This percentage would also be the percentage of the damages the defendant

23

Van der Walt & Midgley Delict: Principles and Cases 3rd

ed (2005) para 169. 24

Jones NO v Santamversekeringsmaatskapy Bpk 1965 2 SA 542 (A) 544.

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WHOSE FAULT IS IT ANYWAY? A REFLECTION ON THE INTERPRETATION OF SECTION

1(1)(A) OF THE APPORTIONMENT OF DAMAGES ACT (NO. 34/1956) AS AMENDED

would be obliged to compensate the plaintiff. It is respectfully submitted that

apportioning fault in this way is more equitable because each party is imputed with the

degree of fault that is directly related to their own conduct. The method of apportionment,

as applied by the Appeal Court, effectively abandoned the mathematical approach

because the court interpreted the section differently in order to justify its method of

apportionment. This method of establishing and apportioning fault was also supported by

many writers because it was seen as advancing a more equitable apportionment of both

fault and liability.25

Yet another interpretation of this section is found in the judgment of General Accident

Versekeringsmaatskappy SA Bpk v Uijs NO26

Here the factors of fairness and equity,

referred to in the section, and the boni mores were taken into account by the court when

the respective degrees of fault of the parties were apportioned. In this case, the plaintiff

had not fastened his safety belt while travelling as a passenger in a motor car. The driver

of the motor car had insured his vehicle with the defendant, and his reckless driving

caused the accident that injured the plaintiff severely. The plaintiff and the defendant

were each held to have been 50% at fault. The court, however, refined this finding after

evaluating the conduct of each party in the light of the factors mentioned above. It was

finally decided that the plaintiff’s failure to fasten his safety belt was not as reprehensible

as the defendant’s reckless driving and it would thus not be fair to hold that both parties

were equally at fault. The court also considered the community’s strong condemnation of

reckless driving when determining the respective degrees of fault of the two parties. On

the basis of fairness and equity, it was decided that the defendant was 66% at fault and

the plaintiff was 33% at fault. The defendant was thus obliged to pay the plaintiff 66% of

the damages claimed.

25

Burchell Principles of Delict (1993) 113; Van der Merwe & Olivier Die Onregmatige Daad in die Suid-

Afrikaanse Reg 1989 162; Van der Walt and Midgley Principles of Delict 3rd

ed (2004) para 169; Boberg

Law of Delict: Aquilian Liability (1984) 657-659; Neethling, Potgieter, Visser Law of Delict (2006) 149;

Dendy “Of Case Books and Criticisms, Misreadings and Misrepresentations: A Reply to Professors

Neethling, Potgieter, & Scott” 110 1993 SALJ 630, 637-639ff. 26

General Accident Versekeringsmaatskappy SA Bpk v Uijs NO 1993 4 SA 228 (A) 235(A-E).

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In the recently published book, The Law of Delict in South Africa,27

another interpretation

of the section is noted. The authors suggest that a party’s fault is determined, not by

establishing the fault by applying delictual rules, but, by relying on the court’s “gut

feeling” of what a fair allocation would be. This approach is open to criticism, firstly on

the grounds that fault would be established on the basis of the subjective feelings of a

court. Secondly, the Appeal Court has laid down that negligence is determined by using

the objective standard of the reasonable person.28

Thirdly, a person found to have been at

fault may lodge an appeal because a subjective factor, like a judge’s “gut feeling”, is not

one of the elements that legally define or determine fault. Their reference is not supported

by any legal authority and is further undermined by their discussion of negligence, when

in the same book it is stated that negligence is objectively determined.29

It is common

cause that “fault” is a wider concept than “negligence”. Despite the focus on the latter,

assumptions about the former continue to inform both meanings. The Appeal Court has

clearly laid down that fault must be objectively determined.30

For these reasons it is

submitted that the subjective (“judge’s gut-feel”) approach to apportionment should not

be followed.

In the case of Harrington NO v Transnet Ltd,31

two security guards were struck by a

Metrorail train that was travelling at an unscheduled time. As a result, they suffered

serious injuries. They instituted action against Transnet, the holding company of

Metrorail, and the train driver to recover the damages they had suffered. They argued that

because the train driver had not given them sufficient warning of the train’s approach, the

driver and his employer, on the basis of vicarious liability, should be held liable for the

damage they suffered. To guide him in the process of apportioning fault between the

various parties, Blignault J. took note of how the Australian, Canadian, and United

Kingdom courts had established the degrees of fault of several parties under similar

circumstances.32

The method of apportionment applied in these jurisdictions was

27

Loubser, Midgley The Law of Delict in South Africa (2010) 423 ch 34 para 2.2.4. 28

Kruger v Coetzee 1966 2 SA 428 (A) 430. 29

Loubser et al paras 7.5, 7.5.1, 7.5.3. 30

See fn 20. 31

Harrington NO v Transnet Ltd 2007 2 SA 228 (C). 32

Sup. 256 (B-F).

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followed by Blignault J. This meant that the court evaluated the respective degrees of

fault of the plaintiffs and defendants separately. The plaintiffs were held to be jointly

33% at fault because they had not kept a proper lookout while walking next to the railway

line. The two defendants were, jointly and severally, found to be at fault for the

remaining 66% and were thus also jointly and severally liable to pay the plaintiffs two

thirds of the damages claimed. By relying on extra-legal texts, such as the decisions of

courts outside the South African jurisdiction, the court illustrated how the Constitution

and extra legal texts play an important role in the process of interpretation.

In the case of Vorster v Santamversekeringsmaatskappy Bpk,33

the two defendants were

participants in a drag race, and the plaintiff was a passenger in one of the vehicles. He

had not secured his safety belt. One of the drivers had insured his car with the first

defendant, and when the vehicles collided, the plaintiff was badly injured. The court

proceeded to evaluate the conduct of each of the three parties separately so as to

apportion the degrees of fault fairly.34

On appeal, the finding of the trial court, that the

plaintiff had been 30% at fault and the two defendants had been 70% at fault and were

thus jointly and severally liable for 70% of the damages, was confirmed.35

In the

Harrington case, discussed above, the defendants, Metrorail and the train driver were

treated as a unit for purposes of determining their degrees of fault, whereas the

defendants in the Vorster case were separately evaluated so that, in the words of the

court, a fair apportionment could be made. The failure of the court in the Harrington case

to follow the method of apportionment that was applied and confirmed by the Appeal

Court in the Vorster case36

was criticized by two authors.37

They stated that the degrees

of fault of the driver and his employer should not have been evaluated as a unit but

should have been separately evaluated and apportioned, as was done in the Vorster case.

Because the apportionment of fault effectively determines the percentage of the damages

that the defendant is obliged to pay the plaintiff, it could create financial problems for a

33

Vorster v Santamversekeringsmaatskappy Bpk 1973 2 SA 186 (W). 34

Sup. 190(A) - 191(B). 35

Santamversekeringsmaatskappy Bpk v Vorster 1973 4 764 (A) 784. 36

Fn 27 & fn 25. 37

Neethling and Potgieter “Mededaders en Bydraende Nalatigheid aan die Kant van die Eiser” 2008 TSAR

354-358.

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defendant if this was not fairly done. So, the train driver could have been financially

crippled because of the apportionment applied in the Harrington case. In the jurisdictions

of Austria, Belgium, Germany, Switzerland, and U.S.A., the degree of fault of each party

who contributed to the damage is separately evaluated.38

This, it is submitted, is the most

equitable way to apportion fault in terms of the section because the personal conduct of

each person would be judged by applying the delictual rules for determining fault to their

conduct. Such an interpretation and application of the section would be more contextual

since it examines the situation pertaining to each person’s conduct.

Further evidence of how the legal discourse within the academic and judicial spheres can

refine the interpretation of the section is seen in the decision of the High Court in the

application of Right v Medi-Clinic Ltd.39

The applicant, an obstetrician, who with the

respondent, a hospital, were found to have been equally at fault for the injuries suffered

by a child at childbirth. The obstetrician approached the High Court with the request that

the degree of fault attributed to him be diminished because the hospital, he alleged, had

been more negligent than he had. His application was based on section 2(8)(a)(iii) of the

Act which empowers a court to vary the degree of fault that attributed to a party. This

section is similar to section 1(1)(a) and serves a similar purpose. When the degree of fault

attributed to a person is not supported by evidence or is excessive, an application under

section 2(8)(a)(iii) can be made to vary the degree. Such an application could also vary an

apportionment if a party was prejudiced because their personal conduct had not been

evaluated but, because it had been so closely linked to another party’s, that it was treated

as a unit for purposes of apportionment. This application would preclude the respondent

and the applicant being seen as a unit because they are on opposing sides in court. In the

Right application, the court held that the hospital was at fault to a greater degree than the

obstetrician was. This is, with respect, an equitable method of apportioning degrees of

fault in a case where two or more parties might appear to be acting as a unit. The powers

given to the court by this application procedure make it clear that the degrees of fault of

38

Neethling “Contributory Negligence under S.A. Law” in Unification of Tort Law: Contributing

Negligence (2004) 169. 39

Right v Medi-Clinic Ltd 2007 4 SA 327 (C).

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each party who contributed to the damage will each be separately determined according

to rules of delict.

Some writers have, because of the different ways that the concept fault has been

interpreted, concluded that legal uncertainty has been created.40

Other writers, on the

other hand, have maintained that justice will be promoted when factors outside the

written text, but within the confines of the law of delict, are used to interpret and clarify

the meaning of fault.41

It is clear from the cases discussed above that there are divergent

ways that fault has been interpreted and applied. Broadly speaking, a tension exists

between a literal and a contextual interpretation. For example, one writer42

has called for

a realism that takes into account other legal texts and relevant factors in the process of

interpretation. Others prefer to rely on a literalist interpretation of a text because it

ensures greater legal certainty in contrast to a more open and contextual interpretation.

The literalist approach was introduced into South Africa by De Villiers CJ.43

Because of

the tension that has arisen between the literal and the contextual interpretations of the

section, a reflection on the process of interpretation is called for.

Those who hold that the meaning of a legal text is to be found in the intention of the

legislature would apply a formal and literalist method of interpretation to establish the

meaning of a text. The method of interpretation effects the way a text is applied. Judges

who use a literalist method would play a stenographic role because to discern the

intention of legislators in their absence in order to establish the meaning of a text would

be a very abstract process. When judges interpret a text, they are also bound to follow the

meaning given to the text in earlier decisions. The constructs of another judge could

restrict the process further. This formal and literalist approach is both abstract and

restrictive and although it ensures legal certainty this is gained at the price of neither

40

Scott “Die Kriterium vir die Berekening van Bydraende Nalatigheid: Enkele Gedagtes” 1995 TSAR 127-

133. 41

Neethling & Potgieter “Die Korrekte Kriterium vir die Berekening van Bydraende Nalatigheid” 1994

THRHR 131-135. 42

Klare “Legal Culture and Transformative Constitutionalism” 1998 SAJHR 146-188. 43

De Villiers v Cape Divisional Council 1875 Buchanan 1980 50.

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considering the context of the conduct complained of not taking other relevant factors

into account. This raises the question of the methodology of interpretation.

The assumption that there is legal certainty about an interpretation and that the subjective

intention of an author can be objectively known has been criticized by both legal authors

and philosophers.44

For most of the twentieth century the main philosophical schools

such as linguistic analysis, hermeneutics, structuralism, deconstructionism,

phenomenology, and Neo-Marxism have all separated the author’s intention from the

text. All maintain that there is a separate “autonomy of the text/literary work” from the

author. Thus Palmer states, “The author’s intentions … are held rigidly separate from the

work; the work is a ‘being’ in itself, a being with its own powers and dynamics.”45

The examples previously discussed showed how the courts practically calculated the

apportionment of damages between the plaintiff and defendant by means of reducing

damages in a just and equitable manner. It also showed how respective courts have

interpreted this section of the Act differently, and raises the question of whether a narrow

and literalist interpretation can justify its claim to be the exclusive and correct

interpretation of this section. Dissimilar applications are accounted for by the varied

interpretations of this section. This underlines the view that interpretation means, in

effect, that to determine the value of an item, act, or event in relation to other items, acts

or events, one must ask whether legal certainty can be achieved so simply, especially

when the interpretation process requires a selective prejudgment of what is to be

interpreted.46

It also becomes clear that the claim of “legal certainty” as found in a literal

interpretation cannot be justified because its method of interpretation proceeds from a

misapprehension of the general process of interpretation. Such a restrictive interpretation

44

Cowan “The Interpretation of Statutes and the Concept of Intention of the Legislature” 1980 THRHR

374-399. 45

Palmer Hermeneutics. Interpretation Theory in Schleiermacher, Dilthey, Heidegger and Gadamer (1969)

518. Hirsch and Beardsley, among other authors, plead for a greater recognition of subjectivity in

interpretation processes. See Ricoeur The Rule of Metaphor. The Creation of Meaning in Language (1977)

109. 46

Gadamer Philosophical Hermeneutics (1977) 8-10 and Truth and Method (1996) 267 refers to this as

“pre-understanding” within a broader “horizon of understanding”, which concurs with the well-

established use of this term (Vorgriff or fore-conception) in Heidegger Being and Time (1927) 150 327.

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does not accord with the Constitution or with the Interpretation of Legislation Bill,

2006.47

3 THE HERMENEUTICAL FRAMEWORK FOR LEGAL

INTERPRETATION

The Constitution calls for an approach to interpretation that is open to various relevant

texts, rather than relying on restrictive and literal interpretations.48

The values of the

Constitution and the provisions of each statute will thus interact. This makes it necessary

to consider critically the hermeneutical49

framework within which each statute is applied

plus the potential this has to effect changes to the previous laws. It is submitted that a

contextualized and creative approach to interpretation will promote justice. This approach

deviates from the more traditional and restrictive interpretative practice, despite the

assumed certainty that the latter appears to give. This open interpretation is similar to the

rules set out in the Bill that prescribes that interpretation be applied within the context of

circumstances, words, and relevant court decisions. The judgments referred to previously

illustrate the need to adopt a more open hermeneutical framework that allows for greater

legal discourse.

When interpreting legislation within a hermeneutical framework, the meaning of a

section would be determined by considering both language and context, and more

particularly, the “contemporary meaning of its language.”50

Context refers to a dynamic

relationship between parts and the whole in a given text, as well as to the assumption that

actual circumstances provide the larger context to any given reading. The general

directive remains, namely that an interpretation needs to be reasonable in so far as the

latter is constituted by consistency with the “purpose and scope of that legislation.”51

47

Hereafter referred to as “the Bill”. 48

Act 108 of 1996 ss 1, 2, 39, 150, 231-233. 49

Hermeneutics is the theory of the rules of interpretation. There are three clearly distinguishable regions

of hermeneutics concerned with the actual interpretation of sets of specialized texts, i.e., legal, literal, and

Biblical hermeneutics. The philosophical contribution “deregionalizes” these dispersed practices and

enquires into the general rules of interpretation that apply to all forms of communication. Ricoeur

Interpretation Theory (1981) 43-44. 50

Interpretation of Legislation Bill 2006 section 7. 51

Sup. s 6(a).

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Thus in S v Makwanyane the President of the Court, Chaskalson, stated, “Section 11(2) of

the Constitution must not be construed in isolation but in its context.”52

The recognition of some of the general principles of interpretation in the Constitution

raises the question of which particular insights offered by wider philosophical

hermeneutics will benefit the specialised field of legal hermeneutics.

Firstly, interpretation needs to be recognized as a process that involves a great deal more

than a static application of fixed rules. The process of interpretation always remains

dynamic since it requires adaptation to different situations and recognition of the

influence of various factors. The general canon is that a given text only makes sense in

terms of its wider context. The philosophers Betti and Gadamer support and promote

such a contextualized approach despite their internal methodologydebate.53

In considering the impact of Gadamer’s philosophy on legal hermeneutics, Mootz says

that the socio-cultural context implies shared bonds by communicative communities that

serve as bridges between their respective horizons of understanding. “Judges decide

particular cases by bringing the shared legal tradition that they embody into play with the

relevant legal texts.” 54

The rapid pace at which new terms and meanings are introduced

is nowhere better seen than in the current development of internet-based social

communities. This insight is confirmed by one of the most general principles of

understanding, namely that the meaning of a text is only grasped via the relationship

between parts and whole. The recognition that evolving communities such as the many

internet-based ones co-determine meaning in new contexts is in harmony with the key

innovations of the Constitution and the Bill.

Secondly, interpretation could be regarded as being primarily the task of the

contemporary reader in that the reader must discern the meaning of a given text in the

52

S v. Makwanyane 1995 3 SA 391 (CC) 403G-H. 53

Bleicher Contemporary Hermeneutics. Hermeneutics as Method, Philosophy and Critique (1980) 27. 54

Mootz (III) sup. 567. Cf “The Ontological Basis of Legal Hermeneutics: A Proposed Model of Inquiry

based upon the Work of Gadamer, Habermas and Ricoeur” 1988 in Boston University Law Review 68:523

523-617.

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absence of the author. The romanticist notion that the author’s intentions render the

meaning of a text unalterable, thus implying only one possible interpretation, has been

comprehensively criticized. Intentions are internalized psychological motivations, and as

such are both hidden and variable. Furthermore, intentions can often not be properly

discerned even when speaker and listener are both present. This is also the case when a

contemporary reader interrogates a text from another era. The reader’s problem of

discerning an author’s intentions intensifies when confronted with a translated text. By

and large, the contemporary reader needs to reconstitute the meaning of a text afresh.

This holds true for both general (philosophical) and specialized (legal) hermeneutics. At

the very least, it needs to be accepted that an interpreting reader co-constitutes the

meaning of a text with the author. It is no wonder then that different readings of the same

“text” (regarding events, contracts, statutes) lead opposing parties to submit contradictory

pleas in support of their respective interpretations of the same.

An example from legal hermeneutics confirms the recognition of the reader as primary

interpreter: D.V. Cowan regards interpretation as a process whereby the court applies a

legal text within a specific context. He goes so far as to argue that a judge can be said to

“make law” – albeit in a more restricted way than a legislator.55

The setting of legal

precedents amply illustrates this point.

A third insight into the interpretation process relates to the subjective factor in all

interpretation. If one accepts that the term “interpretation” is closely connected with

human subjectivity, and consequently with human limitations, faults and failures, then the

claim that an appeal to legal certainty justifies the exclusion of subjectivity becomes

questionable. The rule-bound approach56

is itself an interpretation and remains, for that

reason, just as contestable as any other is. In fact, the history of hermeneutical tradition

reveals problems to be avoided – such as “the illusions of the subject” that pertains to

55

Dugard “The Judicial Process, Positivism and Civil Liberty” 1971 SALJ 181-200. 56

Accredited to the transcendental philosophy of Immanuel Kant (1724-1804), also termed “deontology”.

Kant proposed normative-ethical norms in terms of his concept of the “categorical imperative”. This

approach, together with the utilitarianism of thinkers such as Bentham, Mill and Sidgwick, and the

continued appreciation of Aristotle’s virtue ethics, remain the leading ethical theories to this day. Cf

Duignan (ed) Modern Philosophy from 1500 CE to the Present (2011) 15-16.

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both author and reader, the dangers of dogmatism, and the epistemological status of

claims of knowledge – due to the unavoidable conflict of interpretations.

Fourthly, rather than eliminating subjectivity from interpretation as such, the challenge of

hermeneutics is to outline the conditions necessary to ensure a more objective balance in

text interpretation. This requires an understanding of the nature of what is called the

“hermeneutical experience” which refers to the historical, eventual, dialectical, and

ontological nature of the interpretation process.57

The overriding insight drawn from this

is that understanding is never an immediate process, but always mediated by a variety of

objectified meaningful forms, of which authoritative texts are primary examples.58

The notion of the “hermeneutical circle” is widely accepted by contemporary

hermeneuticists and points to the development of a more objective hermeneutical

framework. Palmer explains this in simple terms:

“Understanding is a basically referential operation; we understanding something by comparing it to

something we already know. What we understand forms itself into systematic unities, or circles made

up of parts. The circle as a whole defines the individual part, and the parts together form the circle.”59

The circularity of understanding implies the possibility to integrate the objective moment

of structural analysis with the subjective aspects of understanding, and so constitute a

more valid interpretive basis. In practical terms, it acknowledges that a judge is also a

contemporary reader of a specific set of texts whose understanding of the matter at hand

has the character of a “hermeneutical circle”. This is linked to various assumptions. For

example: each case is considered in view of legal traditions; the different layers of

meaning encompassing a given law should be noted if a particular statute is to make

sense; communicative communities that create new meanings may well understand the

same meaning differently; the merits of contradictory premises held by opposing parties

deserve to be evaluated; the factual circumstances of a given event need to be discerned

from the accidental and peculiar; the meaning and context of the terms used must be

57

Palmer Hermeneutics proposes this in “thirty theses on interpretation” (1969) 242-253. 58

For a discussion of Ricoeur’s comprehensive contribution in this regard, see Thompson Critical

Hermeneutics. A Study in the Thought of Paul Ricoeur and Jürgen Habermas (1983) 48-60. 59

Palmer sup. 87.

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understood, etc. The existence of deviatory, if not contradictory, judgments relating to the

same legal text is seen in the open interpretations in the cases previously referred to.

Finally, on the question of which philosophical hermeneutical insights might benefit legal

hermeneutics, a basic philosophical premise is that all understanding is of a linguistic

nature. Already centuries ago, the Nominalist tradition in Philosophy provided a decisive

critique on the long-held assumption that words are true reflections of things. They

showed that abstract words and universal concepts are merely contingent terms and do

not represent actual existing entities. An even simpler indication of what Ricoeur calls the

“hermeneutical consciousness”, is evidenced in “... a quite remarkable characteristic of

natural languages … which calls for a work of interpretation at the most elementary and

banal level of conversation”, namely polysemy, “the feature by which our words have

more than one meaning when considered outside of their use in a determinate context.”60

In a similar vein, Gadamer identifies the original hermeneutical awareness that applies to

all statements with the following rhetorical phrase:

“But I am anticipating, and have inadvertently used the phrase, ‘which answers to which questions

fit the facts.’ This phrase is in fact the hermeneutical Urphänomen: No assertion is possible that

cannot be understood as an answer to a question, and assertions can only be understood in this

way.”61

The above insights from the general hermeneutical tradition provide a decisive criticism

of the formalistic, historical approach to text interpretation. This is borne out by retired

American judge R.E. Posner who highlights various beneficial insights that can be gained

from philosophical hermeneutics.62

Posner attributes the core of the problem of legal interpretation to the phenomena of

interpretative and legal “indeterminacy”, which are in continual conflict with a

formalistic approach. Whilst the latter cannot be upheld in the context of “the diversity of

modern legal culture”, the admission that all texts have a “slippery ontology” undermines

the basis of any literalist reading of legal texts. Posner explains his reservation, “A judge

60

Ricoeur Interpretation Theory (1981) 44. 61

Gadamer Philosophical Hermeneutics (1977) 11. 62

Posner The Problems of Jurisprudence (1990) 296-297.

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who believes that such texts rarely yield a determinate meaning may be inclined to defer

to the precedents interpreting them, believing that he is unlikely to do better by the fresh

reading of the text.”63

It is submitted that some insights of general hermeneutics are, in fact, already present in

legal hermeneutics. For example, L. du Plessis holds that a “text is not an autonomous

bearer of meaning … because meaning is made in dealing with a text”.64

This approach is

also maintained by other writers.65

The dangers of relying either on an exclusive

interpretation of a statute or on an exclusive narrative within the Constitution are the

same. Both restrict the interactive process involved in interpretation. No interpretation of

history is free of personal prejudice or the current power relationships within a country.66

To uphold an exclusive, all-encompassing interpretation of a statute would prevent the

openness advocated by the Constitution and vital interaction between legal texts, context,

and the legal community. An exclusive interpretation would, in effect, be ideological

because the different circumstances and texts would be subjected to the application of

one interpretative model. For example, when the right to imprison a recalcitrant witness

in terms of the Insolvency Act67

was challenged as unconstitutional because it implied a

power granted by an authoritarian and oppressive regime, this challenge was upheld by

three judges. Yet the provision in the Insolvency Act is intended to protect the

commercial rights of creditors (even though such rights have no political overtones).68

The same criticism relating to a reliance on an exclusive interpretation in respect of the

development of the Constitution can also be directed at the exclusive and literal

interpretation of the Act, as in the Smit and other cases.

63

Sup. 297. 64

Du Plessis “Re-interpretation of Statutes” 2002 Prolegomenon 2 & 4. 65

See fn 42 168; Ross “Interpretation Theory and Statutory Construction: Revisiting the Issue in the Light

of Constitutionalism” 2004 Stellenbosch Law Review 268 ff. 66

Cf Ricoeur The Utopia and Ideology Lectures (1986) on a variety of critical social thinkers, e.g. Marx,

Weber and Habermas 216-231; De Vos “A Bridge Too Far? History as Context in the Interpretation of

the S.A. Constitution” 2001 SAJHR 1-33. 67

S 66(3) of Act 24 of 1936. 68

De Lange v. Smuts NO 1998 3 SA 785 (C).

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The different interpretations applied to the section could be seen either as creating legal

uncertainty or as a creative process that refines justice. Statutory language is not static

and the terms of statutes are often ambiguous. New meaning is given to law through a

continual legal discourse. The Constitution invites reference to texts other than the legal

text relevant to the dispute to be used for purposes of interpretation. The various

applications of the word “fault” reflect this creativity. This approach is, with respect,

reflected in the words of Froneman J. when he said:

“The provisions of s38 are not self-explanatory in a single unambiguous way… this does not

mean that I am entitled to interpret this section in the manner that I would like to, the interpretation

has to be done within the constraints of legal reasoning, and one of these being that like cases

should be treated alike.”69

He was thereby supporting an open and more contextual interpretative process. Such an

approach allows for development and continual refinement, unlike the restrictions

imposed by a literalist approach. This is reconfirmed by the two judgments referred to

below.

In King v Pearl Insurance Company Ltd,70

the plaintiff was driving a scooter when she

was hit by a motor car insured by the defendant. She was badly injured and instituted

action to recover her damages arguing that the major cause of the collision was the

conduct of the driver of the motor car. The defendant excepted to the claim on the

grounds that, because the plaintiff had not worn a crash helmet, she had contributed to the

damage and on that basis her claim should be reduced. Colman dismissed the application

on the grounds that her failure could not be interpreted as fault because her failure had

not caused the damage nor could she be blamed for the accident. The court had, with

respect, confused the concept of fault with that of causation. In the later case of Bowker’s

Park Komga Co-operative Ltd v SAR&H, Adelson referred to the interpretation of the

section by Colman J. as “both artificial and unnecessary in the plain wording of s(1)

(1)a.”71

He held that the concept “fault” should be interpreted to refer to all conduct that

contributed to the extent of the damage and not to who had caused the damage. This

69

Ngxuza v. Permanent Secretary, Department of Welfare, Eastern Cape 2001 2 SA 609 (E) 620(A-B). 70

King v Pearl Insurance Company Ltd 1970 1 SA 402 (W). 71

Bowker’s Park Komga Co-operative Ltd v SAR&H 1980 1 SA 91 (E).

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interpretation was supported by several writers72

and is, with respect, both equitable and

correct. In Union National South British Insurance Ltd. v Vitoria,73

the plaintiff was a

passenger in a motor car that was involved in a collision that caused her serious damage.

She had not secured her safety belt and this had contributed to the extent of damage she

suffered. The Appeal Court confirmed the interpretation Adelson J. had given to the

section and it was decided that the respondent had contributed to the damage by not

securing her safety belt. Her claim was accordingly reduced and the court held that fault

should not be restrictively interpreted.74

The three interpretations of the section, as found

in the above judgments in this paragraph, show that by applying different interpretations

of a text or word will result in judgments being made that are in conflict with each other.

4 CONCLUSION

The shift in the understanding of the word “fault”, as seen above, is evidence of how an

attitude of openness to a creative process allows for a more equitable interpretation that is

not restricted by a literal interpretation. The contextual approach allows “justice to do

justice”.75

It follows that the syllabus for courses in jurisprudence will be strengthened by

the inclusion of salient aspects of hermeneutics and epistemology. It is further clear that a

contextual approach would assist the legal system in developing a more just society. This

orientation is borne out by the active awareness abroad of philosophical hermeneutics.

An understanding of recent developments in hermeneutics, and the relevance thereof for

both legal hermeneutics and legal decision-making, would deconstruct the current

hermeneutical premises applied by the courts. Such a change in perspective would extend

to all areas of the law and thus promote a more equitable legal system. It is contended

that a distinctive shift in legal hermeneutics will provide creative answers to questions

such as “whose fault is it anyway?”

72

Burchell “Annual Survey of South African Law” 1980 “Law of Delict” 172, 190-193 and references in

article. 73

Union National South British Insurance Ltd. v Vitoria 1982 1 SA 444 (A). 74

Sup. 456(E). 75

Du Toit “The Contribution of Hermeneutics and Deconstruction to Jurisprudence: A Response” 1998

Acta Juridica 41-47.