Transformative constitutionalism and the fault requirement of the common law of personality

This article examines the relationship between transformative constitutionalism, legal ideology, and the fault requirement in South Africa's common law of personality. It emphasises the need to balance individualistic and collectivist values in alignment with transformative constitutionalism's imperatives of personal development and social cohesion in the context of the law of personality. The ensuing analysis reveals that the current fault requirement, an exclusive reliance on intention-based liability, inadequately addresses the collectivist values crucial to transformative constitutionalism. This leads to an underappreciation of the complete constitutional social value of the human personality as a legally protected interest. The article advocates a solution within the transformative constitutionalism paradigm, proposing the horizontal application of fundamental rights and constitutional values. This approach facilitates the articulation of the comprehensive constitutional social value of the human personality, encompassing both individualistic and collectivist dimensions. In conclusion, the article calls for an adjustment of the framework of the common law of personality, recommending the introduction of negligence-based liability into the fault requirement of the actio iniuriarum. This adjustment aims to enhance the protection of the human personality while effectively balancing individualistic and collectivist values in line with constitutional imperatives.