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.

In terms of contract the innocent party must prove certain requirements:

  • There must be a breach of contract.
  • The innocent party must have endured patrimonial loss.
  • There must be a causal connection between the breach and the loss.
  • The loss must not be too remote.

The primary purpose of a contractual remedy is to enforce an agreement, or compensate for the non-fulfilment of its terms. A delictual remedy on the other hand, is directed primarily at compensation for the infringement of a legally recognised interest which exists independently from a contractual obligation. Another area of distinction is the nature of the loss for which damages may be recovered. In delict, the harm may be patrimonial and non-patrimonial. In contract intangible loss cannot be recovered. It is argued that the plaintiff can choose to claim damages either in contract or delict, and the plaintiff can sue in the alternative. If one establishes both claims, damages should be awarded on the basis of the most advantageous claim.

The above principles were upheld and discussed in the case of Chibage and Ndawana. The facts were as follows: The plaintiff was a commissioner in the Zimbabwe Republic Police and the defendant was a duly qualified dental surgeon, in the same employ as the plaintiff. In June 2007, the plaintiff consulted the defendant, complaining of sensitivity to his teeth. She examined him at the police hospital and later invited him to her surgery where she extracted a tooth that was embedded in his gum. The extraction was not successful and she referred him to Professor Chidzonga, a specialist, who finally extracted the tooth and found out in the process that the plaintiff had suffered a fractured jaw. When the plaintiff's superiors visited him at his house, a decision was made for him to be flown to South Africa for further management and treatment. He was duly attended to in South Africa and the fracture was reduced. The plaintiff sued for patrimonial and non-patrimonial loss.

The court stated that the issue of whether to bring claims of professional negligence against medical practitioners in delict or in contract is not new. The line of division where negligence is alleged is not always easy to draw. For negligence underlies the field of both contract and delict. The Honourable J P Makarau stated that it is not necessary for a plaintiff to plead a contractual relationship between the parties to enable him to bring an action in delict against the defendant. He further stated that the law acknowledges a concurrence of action where the same set of facts can give rise to a claim for damages in delict and in contract, and permits the plaintiff in such a case to choose which he wishes to pursue.

The Chibage case has strongly affirmed the principles upheld in the two most leading South African cases dealing with concurrence of actions in professional negligence matters, namely Lillicrap Wassenaar & Partners v Pilkington Bros 1985 (1) SA 475 (A) and Van Wyk v Lewis. Although the Chibage case is a Zimbabwean decision, the judge relied on the two leading South African cases stated above. It is clear from the above discussion and taking into account the facts of a particular case, that the aggrieved party can elect to sue in delict or contract in the alternative or concurrently, having regard to what is advantageous to him or her.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.