Developing the South African law of delict: the creation of a statutory compensation fund for crime victims

[摘要] ENGLISH ABSTRACT : The dissertation evaluates the compensatory relief South African law currentlyprovides 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 thecrime. Because the perpetrator is unlikely to be in a financial position to compensatethe victim's harm, crime victims frequently frame actions against the state, not only onthe basis of vicarious liability for positive wrongdoing by state employees, butincreasingly on the basis of failure by the state or its employees to prevent crime. Thisdissertation describes the expanding delictual liability of the state for harm caused bycrime and concludes that this development of the law of delict is both theoretically andpractically undesirable. The dissertation further argues that the existing statutorymechanisms to claim compensation for harm arising from crime is unsatisfactory andprovides little assistance to crime victims.Within this framework the dissertation considers whether there is an alternativemethod to secure compensation for the hundreds of thousands of South Africans whofall victim to crime each year. The most common solution adopted in foreignjurisdictions is the establishment of a statutory compensation fund for crime victims.The dissertation seeks to establish whether the legislative reform of the South Africanlaw 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 othersignificant instances of legislative reform of the South African law of delict. In theprocess, a general theoretical framework is developed that may provide an outline forstatutory reform of the law of delict to provide compensation for specific categories ofvictims.The dissertation thereafter examines whether the establishment of a statutory crimevictim compensation fund could fit within this proposed theoretical framework. It isconcluded that the proposed fund is justifiable and, when compared to the solutionsoffered by the current developments within the common-law of delict and existinglegislation, it seems, in principle, to be a more desirable solution to improve the legalposition regarding compensation of crime victims. To be successful, the proposed statutory compensation scheme must be theoreticallysound and practically workable. The dissertation therefore concludes by focusing onseveral practical questions and considerations which the South African legislatureshould take into account, if it were to enact such a scheme.

[发布机构] Stellenbosch University