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Aquilian Liability for Unlawful Competition in South African Law


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Aquilian Liability for Unlawful Competition in South African Law


2nd October 2023


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Aquilian liability, deeply rooted in South African law, serves as a vital mechanism to address unlawful competition. This legal framework empowers those who suffer financial losses due to wrongful competition or trading practices. This article presents an overview of Aquilian liability in the context of unlawful competition, exploring its historical foundations, various forms, fault considerations, interests protected, the concept of wrongfulness, and available remedies. 

Historical Foundations 


The origin of Aquilian liability for unlawful competition in South African law can be traced back to the landmark case of Matthews v Young1. This case marked the inception of the concept, emphasising the need for lawful boundaries in competition. While individuals have the freedom to engage in trade and professions, they must do so without unlawfully interfering with others. Unlawful interference leading to direct losses can trigger legal action under the lex Aquilia. 

The Expansive Aquilian Action 


South African law recognises a broad-ranging action for unlawful competition, firmly grounded in the principles of the lex Aquilia. Courts have applied these principles to diverse forms of unlawful competition, including passing off, misrepresentation, trade secret misappropriation, copying a competitor's work, competition violating statutory provisions, and boycotting. 

Flexibility in Legal Protections 

One significant implication of acknowledging Aquilian liability in the context of unlawful competition is the flexibility it offers. Courts may develop new forms of protection against unlawful competition even in the absence of direct legal precedent. This flexibility allows for adaptive responses to emerging challenges. 

Categorisation of Unlawful Competition 

While Aquilian principles apply broadly, courts often categorise cases of unreasonable competitive or trading conduct into established forms of unlawful competition. This categorisation streamlines legal proceedings but also permits the development of detailed sub-rules within each category. 

Key Forms of Unlawful Competition 

Several prevalent forms of unlawful competition frequently arise: 

  • Passing Off: Misrepresenting one's business or product as identical or connected to another's. 
  • Misappropriation of Trade Secrets: Unlawful use or disclosure of confidential information with commercial value. 
  • Copying and Exploiting Competitor's Work: Appropriating a rival's creative output. 
  • Wrongful Use of a Trade Name: Using another's trade name or personal image for advertising purposes. 
  • Misappropriation of Intellectual Property: Unauthorized use of copyrighted or trademarked materials. 

Fault in Unlawful Competition 

Unlawful competition typically involves intentional conduct, though distinguishing between competition and deception can be challenging. South African law also recognises negligence as a factor in unlawful competition. 

Interests Protected by Aquilian Action 

The paramount interest safeguarded by the Aquilian action for unlawful competition is the right to goodwill. This encompasses various facets such as reputation, product names, trademarks, and trade secrets. The essential requirement is proof of actual or potential harm to trade or the ability to attract customers. 

Determining Wrongfulness 

Assessing wrongfulness in unlawful competition involves considering fairness, honesty, societal interests, market ethics, and community business norms. Public policy considerations play a pivotal role in this determination. 

Remedies and Damages 

Courts in South Africa award damages for harm caused by unlawful competition following standard principles applicable to financial harm. While precisely quantifying harm can be challenging, courts base their assessments on evidence probabilities. In many instances, interdicts or injunctions prove to be the most effective remedy, compelling wrongdoers to cease unlawful competition or trading. 


Aquilian liability for unlawful competition in South African law offers a robust legal framework for addressing various forms of competition-related harm. Rooted in historical precedents, this legal doctrine continually adapts to new challenges, safeguarding the rights of individuals and entities against unfair practices in the competitive marketplace. Contact an expert at SchoemanLaw for your legal needs.  

Written by Johan De Lange, SchoemanLaw Inc  


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