Delictual liability of South African cities in the execution of their developmental duties: Lessons from case law

Abstract

Following its radical transformation, local government is currently mandated to play a broader developmental role. Municipalities (cities) have conferred powers, functions and competences to execute their developmental duties towards their local communities. The duties include contributing to the realisation of human rights and meeting the basic needs of local communities. Municipalities must strive to fulfil these functions within their financial and administrative capacity. Despite all of these obligations, the majority of South African cities are still failing to fulfil their developmental mandate. This can be observed in the cumulative municipal-related incidents that significantly threaten the lives, health and wellbeing of local members. As a result of such failures, delictual claims against municipalities for harm sustained by community members continue to grow. Local communities may want to or could resort to instituting delictual claims as a means to obtain redress for their infringed legally protected interests by wrongful and negligent and/or intentional conduct of municipalities. This is because the law of delict's compensatory function is to award damages to prejudiced parties to restore them to their original position before the occurrence of the delict. This study evaluates and reviews case law that dealt with municipal delictual liability to explore lessons that can be learned to inform both municipalities and potential litigants. Among others, the study found that municipalities no longer enjoy general immunity from delictual actions arising from poor roads or pavements. It also found that the breach of statutory duties by municipalities does not automatically give rise to delictual damages. In addition, municipalities are required to execute their duties as objectively reasonably required considering their administrative and financial capacity. The study also found that as part of the state, municipalities are required to adhere to a higher standard of care than private individuals. Concerning prejudiced parties, the study found that they can only be awarded damages they were able to prove. The study makes recommendations on how municipalities can reasonably execute their duties while adhering to legislative standards. The recommendations could also guide communities in shaping their expectations and assist potential litigants in proving their cases in delictual actions where they may have valid cause of actions.