ARTICLE · 02 DECEMBER 2011

To Sue In Contract Or In Delict?

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There has been a longstanding debate in South African law on whether to sue in contract or delict when dealing with professional negligence matters.

South AfricaLitigation, Mediation & Arbitration

Ayanda Nondwana

Itumeleng Sethaba

There has been a longstanding debate in South African law on whether to sue in contract or delict when dealing with professional negligence matters. The line of division on whether to sue in contract or delict is not always easily drawn. This principle will be discussed in relation to the recent case of Chibage v Ndawana (2010) JOL 26225 (ZH).

The defendant's conduct may constitute both a breach of contract and a delict, thus giving a plaintiff a choice of which remedy to pursue.

The test to determine whether or not a party is negligent in delict is the reasonable man test, thus whether a reasonable man in the defendant's position has acted in a negligent manner. There should be foreseeability and prevention of harm.

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