Delict in Cyberspace in South Africa: Reflection on Recent Judicial Developments

Abstract

This article explores the judicial application of the law of delict in cyberspace issues in South Africa. This exploration takes place against the backdrop of the risks of harm, such as pure economic loss, occurring in cyberspace, especially those resulting from the exercise of professional duties. Specifically, the article examines how recent case law, such as Edward Nathan Sonnenberg Inc v Hawarden [2024] ZASCA 90, addressed the gaps existing in the law of delict on the question of liability for patrimonial harm occasioned by third-party fraudsters in cyberspace. The article further examines the courts’ application of the constitutional values of dignity, fairness and freedom to the development and application of the law of delict in addressing harms in cyberspace. As noted in the article, recent case law demonstrates the extent of the legal duties of professionals, their clients and third parties impacted by the exercise of professional duties to prevent patrimonial harm occasioned by the activities of fraudsters in cyberspace in South Africa. The case law marks a significant step towards solving problems caused by emerging cybersecurity challenges, addressing the gap in the law of delict concerning liability for online scams causing pure economic harm.