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
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
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
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.
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