Liability of the State and Public Authorities in Israel and South Africa

in European Journal of Comparative Law and Governance
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Both the Israeli and the South African legal systems are classified as mixed legal systems, or mixed jurisdictions. In Israel, tort law was originally pure English common law, adopted by legislation and later developed judicially. In South Africa, the law of delict (tort) was originally Roman-Dutch but was later strongly influenced by the English common law. Under both systems, tort law is characterized by open-ended norms allowing extensive judicial development. This paper traces and compares the structural basis, methodology, policy, and trends of the judicial development of state and public-authority liability in the Israeli and South African jurisdictions. Specific factors that have impacted the development of state- and public-authority liability are: (1) constitutional values, (2) the courts’ recognition of the need for expanded protection of fundamental human rights and activism towards achieving such protection, (3) the multicultural nature of the societies, (4) problems of crime and security, and (5) worldwide trends, linked to consumerism, toward the widening of liability of the state and public authorities.

Within essentially similar conceptual structures the South African courts have been much more conservative in their approach to state liability for pure economic loss than their Israeli counterparts. This can perhaps be attributed to a sense of priorities. In a developing country with huge disparities in wealth, the courts would naturally be inclined to prioritize safety and security of persons above pure economic loss. The South African courts have been similarly more conservative in cases involving administrative negligence and evidential loss.

The development of the law on state and public-authority liability in Israel and South Africa is also the product of factors such as the levels of education, the effectiveness of the public service, and the history and pervasiveness of constitutional ordering. Despite important differences, the law in the two jurisdictions has developed from a broadly similar mixed background; the courts have adopted broadly similar methods and reasoning; and the outcomes show broadly similar trends.

  • 12)

    Gidronsupra note 2.

  • 14)

    Tedeschisupra note 3 at 33–44; Gad Tedeschi & Abraham Rosenthal Civil Wrongs Ordinance: In the Light of the History of its Preparation and Amendments (Magnes Press 1960) (Isr.).

  • 16)

    Gileadsupra note 13 at 24–28.

  • 40)

    Foundations of Lawsupra note 30.

  • 42)

    § 1 Foundations of Lawsupra note 30.

  • 47)

    Gileadsupra note 13 at 24–25 94 106.

  • 50)

    2 Gileadsupra note 32 at 1052–54.

  • 52)

    Gileadsupra note 13 at 95.

  • 68)

    2 Gileadsupra note 32 at 1101–07.

  • 127)

    Act 108 of 1996s.33.

  • 136)

    Rogerssupra note 135 at 40.

  • 137)

    Wagnersupra note 119 at 1013-14.

  • 138)

    Rogerssupra note 135 at 40.

  • 140)

    Rogerssupra note 135 at 41-42; see also F.H. Lawson & B.S. Markesinis Tortious Liability for Unintentional Harm in the Common and the Civil Law 95 (Cambridge Univ. Press1982).

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