Department of Private Law

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Browsing Department of Private Law by browse.metadata.advisor "Loubser, Max"

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    Developing the South African law of delict: the creation of a statutory compensation fund for crime victims
    (Stellenbosch : Stellenbosch University, 2018-03) Wessels, Albertus Bernardus; Loubser, Max; Du Plessis, Jacques; Stellenbosch University. Faculty of Law. Department of Private Law.
    ENGLISH ABSTRACT : The dissertation evaluates the compensatory relief South African law currently provides to victims of crime. To obtain compensation for the harm arising from crime, a victim may institute a common-law delictual claim against the perpetrator of the crime. Because the perpetrator is unlikely to be in a financial position to compensate the victim’s harm, crime victims frequently frame actions against the state, not only on the basis of vicarious liability for positive wrongdoing by state employees, but increasingly on the basis of failure by the state or its employees to prevent crime. This dissertation describes the expanding delictual liability of the state for harm caused by crime and concludes that this development of the law of delict is both theoretically and practically undesirable. The dissertation further argues that the existing statutory mechanisms to claim compensation for harm arising from crime is unsatisfactory and provides little assistance to crime victims. Within this framework the dissertation considers whether there is an alternative method to secure compensation for the hundreds of thousands of South Africans who fall victim to crime each year. The most common solution adopted in foreign jurisdictions is the establishment of a statutory compensation fund for crime victims. The dissertation seeks to establish whether the legislative reform of the South African law of delict through the creation of such a fund is justified and appropriate. To do so, the dissertation analyses the historical background and policy bases of other significant instances of legislative reform of the South African law of delict. In the process, a general theoretical framework is developed that may provide an outline for statutory reform of the law of delict to provide compensation for specific categories of victims. The dissertation thereafter examines whether the establishment of a statutory crime victim compensation fund could fit within this proposed theoretical framework. It is concluded that the proposed fund is justifiable and, when compared to the solutions offered by the current developments within the common-law of delict and existing legislation, it seems, in principle, to be a more desirable solution to improve the legal position regarding compensation of crime victims. To be successful, the proposed statutory compensation scheme must be theoretically sound and practically workable. The dissertation therefore concludes by focusing on several practical questions and considerations which the South African legislature should take into account, if it were to enact such a scheme.