The Implications of Negligent Misrepresentation in Law of Delict: A Judicial Rendition

Abstract

This paper is based upon a literature review. Its aim is to forward a review on the evolution of negligent misrepresentation especially in the South African jurisdiction. The birth of negligent misrepresentation stemmed from Roman law under the guise of the action legis Aquiliae. This action was confined to claims of personal damage and damage to property. The Roman-Dutch law attempts an extension to this action, to every kind of loss sustained by a person in consequence of wrongful acts of another. The Aquilian action has reached its end development in South African law, where compensation for negligent misrepresentation may be claimed ex lege Aquilia. As Aquilian liability results from every culpable and wrongful act which causes patrimonial damage, it is adumbrated that the law of delict will collide with the constitutional demands of the South African law. This paper suggests that the South African law of delict should developed and used as an instrument to serve constitutional purposes. South African Constitutional cases, such as Fose v Minister of Safety and Security and Carmichele exert that if the law of delict does provide a remedy, it is inappropriate to award additional constitutional damages. Foreign case law of Canada in Hedley Byrne & Co v Heller advocates a fresh approach with regard to negligent misrepresentation which relies heavily on Mukheiber v Raath case law.