The Functions of the Law of Torts in Africa

Abstract

Professor Allott observed nearly a quarter of century ago:“There can be no justification (other than inertia) for the continued application of the unreformed English law of torts in modern African countries”.There is no doubt that he was right; there is equally no doubt that it is still substantially the unreformed law which is applied. Certainly there has been very little in the way of legislative change. This paper is not concerned mainly with this question, but with what uses African litigants and their lawyers have found for this exotic field of law, and also, to some extent, with the further question of how far the law has proved fitted for the tasks.A glance at legal periodicals in the United Kingdom and even more so in the USA indicates that there is something of a ferment in tort scholarship. We find writers asking questions like “Does tort have a future?” While at the same time others demand that tort take on new roles. By way of complete contrast, it might appear from African legal literature that the law of tort is of virtually no significance. There are very few books and journal articles are relatively rare. It attracts even less attention from those who write on law and development.It has been said of the Antipodean law of tort that it “does not, in general, reflect the Australian outback and its pastoral economy, nor New Zealand's earthquakes, volcanoes and glaciers, nor exemplify an Australian or New Zealand ethos”.