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Columbia Human Rights Law Review


Although the role of the private law has been largely ignored in studies of transitional justice, private law is a crucial component in South Africa’s transition/transformation. Contrary to the views of some commentators, the private law and delict in particular, were tainted by apartheid. Further, even if the private law of South Africa was not infected by the apartheid cancer, it acted as a carrier and facilitator of apartheid values and policies, perpetuating the inequities apartheid. While there is evidence of the cancer in apartheid case law the more serious problem was a failure of delict to progress under apartheid. Several important and progressive developments that took place in the United States during this period did not occur in South Africa. Even if parts of the law of delict were not tainted, the values underlying apartheid delict are inconsistent with the values and aspirations of the new South Africa. As such, the law of delict was in need of transformation. The remainder of the article details the values of the democratic transformation, the constitutional mechanisms for the harmonization of delict with those values, and the developments in the law of delict that have taken place in light of those values. In sum, just as delict was part of the cancer of apartheid it is now part of the cure. The transformation of South Africa has propelled changes in the law of delict and those changes in turn have added fuel to the transformation, helping to further consolidate South Africa’s democracy.

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447 -521



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Columbia University





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