Misrepresentation by non-disclosure in South African law

[摘要] ENGLISH ABSTRACT: This thesis investigates the approach to non-disclosure as a form of misrepresentation inSouth African law. The primary focus is the question of liability, and whether parties should beable to claim relief based on non-disclosure. In order to determine this, attention is also paidto the standards which have traditionally been employed in cases of non-disclosure, and it isquestioned whether a general test can be formulated which could be used in all suchinstances.The point of departure in this discussion is a general historical and comparative overview ofthe law relating to non-disclosure. This overview places the position in modern South Africanlaw in context, and highlights some of the similarities between our current position regardingnon-disclosure and the position in other jurisdictions. The overview also sets out theprovisions relating to non-disclosure in international legal instruments, which could be of usein interpreting concepts used in our law.The study then shifts to an exploration of the specific situations, such as the conclusion ofinsurance agreements, or agreements of sale involving latent defects, where South Africanlaw automatically imposes a duty of disclosure. These instances are the exception to thegeneral rule against imposing duties of disclosure on contracting parties. The study revealsthat certain principles are applied in more than one of these exceptional cases, and attentionis paid to each in order to determine which principles are most prevalent. It is suggested thatthe nature of the relationship between the parties is the underlying reason for alwaysimposing duties of disclosure in these circumstances.Attention is then paid to the judicial development of the law relating to non-disclosure,specifically in those cases which fall outside the recognised special cases referred to above.The remedies available to a party when they have been wronged by another's non-disclosureare identified and investigated here, namely rescission and damages. A distinction is drawnbetween the treatment of non-disclosure in the contractual sphere and the approach taken inthe law of delict. The different requirements for each remedy are explored and evaluated.A detailed examination of the key judgments relating to non-disclosure shows us that thejudiciary apply similar principles to those identified in the discussion of the exceptional instances when deciding to impose liability based on non-disclosure. Reliance is also placedon the standards set out in the earlier historical and comparative discussion. The mostprevalent of these standards are the nature of the relationship between the parties and thegood faith principle.It is then considered whether all of these principles and elements could be used in order todistill one general standard that could be used to determine whether non-disclosure couldgive rise to relief. The conclusion is drawn that it may not be advisable to adopt such astandard, and that the seemingly fragmented treatment of non-disclosure in South African lawthus far has enabled its development and will continue to do so. A number of keyconsiderations have been identified as possible standards, and these considerations can beapplied by the judiciary on a case by case basis.

[发布机构] Stellenbosch University