20/08/2021

Study Unit 7.2 | Part 1

Remedies:
General Principles

Outline:

• Heritability of actions
• “Once and for all” rule and future
harm/ loss
Will plaintiff
• Claim for loss of income illegally have a claim?
earned
• Claim for pain and suffering by
unconscious plaintiff

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Heritability of Actions

Example:
Jack is a former mineworker, who worked in a gold mine on the East Rand for 15
years. He retired at the age of 45 due to ill health, and returned to his home in
Limpopo Province. Two years after his return, he was diagnosed with silicosis (a
fatal disease caused among mine-workers due to their breathing fine silica dust)
as well as tuberculosis.
Jack finds out that there are many former mine-workers in a similar position, and
that a group of them have instructed an attorney to institute a claim in delict
against the mining company arising from its failure to ensure safe working
conditions underground. They are claiming for damages (in the form of medical
expenses and loss of income) as well as compensation for pain and suffering
resulting from the diseases they contracted. A class action is accordingly
instituted on behalf of the group of mineworkers; however, when the certification
hearing* takes place, one third of the identified plaintiffs have already passed
away as a result of these diseases.
Assuming that the certification is successful, how should the court
approach the claims of the plaintiffs who have already passed away?

* The certification hearing is a procedural requirement where the court decides whether the
matter can go ahead as a class action.

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Transmissibility of claims

• Transmissibility: can claim be transferred from one person to

another?

• Transmissible = heritable (and cedable*)

• Heritable = can claim be inherited by deceased estate if one of
the parties – plaintiff or defendant - passes away?
• Actively and passively heritable: meaning of these concepts?

* Question whether claim is cedable is not relevant for current purposes.

Active heritability

• Plaintiff is bringing claim against

defendant
• Plaintiff passes away before
claim is finalised
• Can plaintiff’s deceased estate
(executor) continue with the
claim on her behalf?
• If claim succeeds, defendant will
pay compensation to deceased
estate, ultimately goes to heirs of
plaintiff

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Passive heritability

• Plaintiff is bringing claim against

defendant
• Defendant passes away before
claim is finalised
• Can plaintiff continue with claim
against defendant’s deceased
estate?
• If plaintiff’s claim succeeds,
deceased estate of defendant
will be liable to compensate
plaintiff

Heritability of claims: Principles

• Actio legis Aquiliae:

➢ Actively and passively heritable (irrespective of litis
contestatio = closing of the pleadings)
➢ Means that if plaintiff or defendant passes away either
before or after litis contestation, the claim can continue

• Actio iniuriarum and action for pain and suffering:

➢ Only actively and passively heritable after litis
contestation
➢ Means that if one of the parties dies before litis
contestatio, claim lapses

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Summary:

Death before litis Death after litis contestatio

contestatio

Actively Passively Actively Passively

transmissible transmissible transmissible transmissible
(passes to the (passes to the (passes to the (passes to the
Action estate of Plaintiff estate of estate of Plaintiff estate of
Defendant Defendant)

Actio legis
Aquiliae

Actio
iniuriarum
Action for
pain and
suffering

Active heritability: Actio legis Aquiliae

Plaintiff dies Litis contestatio Plaintiff dies

Claim heritable:
Claim remains
action falls into
heritable
deceased estate,
executor can
institute/ continue
claim

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Note: this diagram also

Active heritability: Actio iniuriarum and applies to passive
action for pain and suffering heritability, with the
necessary changes.

Plaintiff dies Litis contestatio Plaintiff dies

Claim heritable:
Claim not action falls into
heritable deceased estate,
➢ claim lapses executor can
continue/ institute
claim

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Back to example (former mineworkers)

• Assume litis contestatio has not yet occurred

• Plaintiffs passed away: active heritability

• Which actions are they bringing?

o Claim for damages (financial loss due to illness, e.g. medical

expenses, loss of income)
o Actio legis Aquiliae  heritable irrespective of litis
contestatio

o Claim for compensation: (pain and suffering caused by illness –

infringement of physical-mental integrity)
o Action for pain and suffering  before litis contestatio
o Not heritable – “dies” with plaintiffs

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Heritability

• Reason why action for pain and suffering and the actio
iniuriarum are not actively heritable: highly personal nature of
action which serves to provide solace to the victim and not to
the victim’s estate or heirs.
• See: Nkala and Others v Harmony Gold Mining Company and
Others [2016] 3 All SA 233 (GJ)

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“Once and for all” Rule

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What is the “once and for all” rule?

• Applies where plaintiff has suffered more than one form of

harm/ loss (e.g. patrimonial loss and physical pain arising
from car accident)

 Rule: plaintiff must claim compensation for all harm/ loss

at the same time (in one action) if this harm is based on a
single cause of action

• This means that plaintiff may only claim once for all harm/
loss

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What is the “once and for all” rule?

• Applies to both current harm/ loss (already incurred) and loss
anticipated in future
• Effect of rule: court awards compensation for future harm/loss
at trial, even though harm (e.g. cost of ongoing medical
treatment, loss of future income) will only materialise in future
• Courts award damages in one “lump sum” - not paid to plaintiff
in instalments

• At the date of trial the plaintiff has not suffered these future
losses yet but it is obvious that they will arise as a natural and
probable consequence
• Doesn’t mean that plaintiff has to prove with 100% certainty that
future harm will occur – degree of speculation

• The determination of future harm/ loss is dealt with in more

detail in Study Unit 8

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Implications: “once and for all” rule

• Important implications of rule:
(a) No further claims by plaintiff
(b) Impact on prescription

Example:

Thabo is a 20-year-old man who is badly injured in a car collision

on the 12th of May 2020. His injuries are so serious that the
doctor’s diagnosis is that he will need major spinal cord surgery
later in life (between ages 30 to 40) to reduce his severe back
pains. He will obviously have to pay for this surgery which will then
amount to patrimonial loss to his estate.

How will this work in practice?

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Example (continued)
• Thabo has only one chance to lodge this delictual claim
• This must be done within three years from the date of the
accident.
• Delictual claim must be instituted within three years after
accident
• At this point he would not have incurred medical expenses of
future back surgery.
• Patrimonial loss in respect of the back surgery he will require
later in life is regarded as future/ prospective lossIn these
circumstances
• Thabo has to claim for in one action for both –
• His accrued (past) harm/ loss
• His prospective (future) losses

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Meaning of “cause of action”

• Going back to definition of “once and for all”rule:
 ”Cause of action” = key concept

• Claims for different forms of harm are based on one (single)

cause of action when –
o success of claims depends on the same material facts (facta
probanda)
o and these facts concur, i.e. happen at the same time

• Difference between “action” and “cause of action”:

o Action = process for claiming a remedy, i.e. actio legis Aquiliae
o Cause of action = set of facts upon which an action is based

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Meaning of “cause of action”

• Cause of action arises as soon as first harm ensues,
provided that other elements are also complied with
• Not necessary for full harm/ loss to have already set in
• In our example (Thabo injured in car accident): cause of
action arises when accident occurs

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Cause of action
• How to determine if different forms of harm arise from the
same cause of action?
• Already seen: claims for different types of harm are based
on single cause of action when success of claims depends
on the same material facts (facta probanda)
• And these facts concur
• Therefore: must determine requirements for each claim –
what should be proved by plaintiff to succeed with claim

• Important judgment: Evins v Shield Insurance Co Ltd 1980 2

SA 814 (A)

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Evins v Shield Insurance Co.

• Basic facts: plaintiff and her husband involved in car accident
➢ Plaintiff is injured, husband dies
• Plaintiff brings two claims –
o Bodily injuries (her own)
o Loss of support due to death of breadwinner (husband)
• Defence is raised that claim for loss of support has prescribed -
claims filed on different dates

• Court therefore has to determine whether these two forms of

harm arose from a single cause of action
• Meaning of term “cause of action” investigated
• Court compares requirements for -
o Claim for damages for bodily injuries and
o Claim for loss of support due to death of breadwinner

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Evins v Shield Insurance Co.

Plaintiff’s 2 Claims
(own bodily injuries and loss of support)

Two claims arose

Did both claims arise from
from different causes
single cause of action?
of action?

Claim for loss of

No prescription –
support has
both claims may proceed
prescribed – claim lapses

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Material facts to be proved:*

Requirements:
claim for bodily injuries
Wrongful act by defendant
causing bodily injury
Requirements:
claim for loss of support –
death of breadwinner
Wrongful act by defendant causing
death of deceased (breadwinner)

Fault (intent or negligence) Fault (intent or negligence)

Plaintiff had legal right to be

---- supported by deceased (prior to
death of deceased)
Loss to plaintiff's patrimony Damage (real deprivation of
caused by bodily injury anticipated support)

* This table does not appear in the Evins judgment itself; however, is based on the
court’s analysis of the material facts (facta probanda).

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Evins v Shield Insurance Co.

• Conclusion: claim for bodily injuries and claim for loss of
support arose from the same damage-causing event (i.e.
accident)
• BUT they were based on different causes of action, since the
material/ essential requirements to be proved by the plaintiff in
each instance differed - despite some overlap
• It is possible that even where both claims flow from the same
accident, cause of action for each claim may arise at different
times
• This means:
• Cause of action for bodily injury will usually arise at the time of the
accident (damage-causing event)
• Cause of action for loss of support will only arise when deceased
person passes away
• This could occur much later than accident itself

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This is the end of Part 1 of Study Unit 7.2.

Slides for this section continue in Part 2.

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