PUBLICATIONS

Introduction This note considers the development of the South African common law of contract by the Constitutional Court (‘CC’) in the judgment of Mokone v Tassos Properties CC 2017 (5) SA 456 (CC) (‘Mokone’). The CC in Mokone discarded two established rules of South African contract law because, in its view, it was in the interests of justice to do so in terms of s 173 of the Constitution of the Republic of South Africa, 1996.

In this article I argue that the time-honoured approach to informed consent in South African medical law is unsound and fails to explain why liability is imposed as a consequence of a healthcare practitioner’s failure to obtain informed consent. I challenge this approach on the basis that a medical intervention performed with a patient’s express consent cannot amount to an assault merely because the healthcare practitioner omitted to disclose a material risk to the patient. Having regard to recent case law, an alternative approach is considered based on an omission which amounts to an actual wrong committed by a healthcare practitioner.

This article is a critical analysis of the Constitutional Court’s arguments relating to the potential recognition or viability of wrongful-life claims in the South African law of delict as set out in H v Fetal Assessment Centre 2015 (2) SA 193 (CC). The article illustrates how the Constitutional Court’s attempt to justify the recognition of this claim within the context of an Aquilian action by application of inter alia the child’s constitutional right to have his or her best interests regarded as paramount in all circumstances concerning the child, is untenable. It accordingly considers the prospects of establishing harm-causing conduct, wrongfulness and causation in order to succeed with the actio legis Aquiliae in addition to the possibility of claiming constitutional damages.