COURSE INFORMATION

Topics covered in this module

In this module five main topics will be discussed:

Topic 1: General principles of the law of damages

- Definitions and terminology
- Who may claim and who has to pay
- Source of the claim and concurrence of claims
- Assessment of damages
- Purpose or object of damages
- Compensating advantages
- Duty to mitigate
- Mora interest and inflation

Topic 2: Contractual damages

- Forms of breach of contract, requirements and remedies
- Measure of contractual damages
- Positive and negative interesse
- Failure to deliver and late delivery of thing or performance
- Contract of sale and loss of profit
- Limitation and regulation of contractual liability
- Non-patrimonial loss
- Consumer protection legislation
- Breach of promise
- Professional liability

Topic 3: Delictual damages – assessment of patrimonial loss

- Statutes (Road Accident Fund Act and Compensation for Occupational Injuries and
Diseases Act)
- Damage to property
- Destruction, theft or alienation of property
- Loss of use
- Bodily injury (medical expenses, loss of income)
- Death (medical and funeral expenses, loss of support)
- Infringement of personality rights

Topic 4: Delictual damages – assessment of non-patrimonial loss

- Nature and characteristics
- Forms
- Theories
- Assessment principles

Topic 5: Procedural matters

- Pleadings
- Burden of proof
- Once-and-for-all rule and causes of action
- Prescription
- Costs
- Appeal
- Private international law and foreign judgments

TOPIC 1: GENERAL PRINCIPLES OF

THE LAW OF DAMAGES

Learning Unit 1

1.1 Definitions and terminology

Par 1.1, 1.2 read

Summary
The law of damages is that part of the law which indicates how the existence and extent of
damage as well as the proper amount of damages or satisfaction are to be determined in the
case of delict, breach of contract and other legal principles providing for the payment of
damages . The law of damages consists of principles regarding the compensation of all forms
of damage from all sources of claims for damages and satisfaction.

Par 1.7 study

Par 2.1-2.7 read

Summary
Damage is defined as the diminution, as a result of a damage-causing event, in the utility or
quality of a patrimonial or personality interest in satisfying the legally recognized needs of
the person involved. In the definition of “damage” five elements of the concept of damage are
revealed:

(1) Element of diminution or reduction – in the case of diminution of a patrimonial interest it

is generally measured by a monetary standard (quantitative reduction), whereas in the case of
a reduction in a personality interest there is mainly a reduction in quality.

(2) Causal element – a damage-causing event, which is a factual situation of an uncertain

nature, must have taken place to cause the damage.

(3) Interest element – it is either a patrimonial interest or a personality interest which has
been reduced. We follow the wide concept of damage which includes both patrimonial and
non-patrimonial loss.

(4) Normative element – legal norms (and not only factual circumstances) co-determine the
existence and nature of damage. The presence of legal norms is represented by the words
“legally recognized needs” .

(5) Time element – both reductions that has already taken place at the time of trial, as well as
one’s that is expected with a sufficient degree of probability to materialize in the future, are
taken into account.

Damage is an ancient legal term and the word damnum enter into legal terminology with the
lexAquilia in 287 BC. Since then it has developed into a complex concept involving
numerous principles.

The origin and nature of the modern concept of patrimonial damage can be traced back to the
German jurist Mommsen in 1855. According to him damage (interesse) is the difference
between the present patrimony of the plaintiff and the patrimonial position which would
presently have existed if the damage-causing event had not taken place. This approach (also
called the sum-formula) was taken over as the concept of damage in our law. However, this is
not really a satisfactory definition of damage but rather a comparative method by which the
extent of patrimonial loss may be assessed. The modern concept of damage has developed in
the context of delictual and contractual liability.

See De Vos v SA Eagle VersekeringsmaatskappyBpk 1985 (3) SA 447 (A) as discussed in

chapter 2, fn 32 on what constitutes damage.

Our law also accepts a wide concept of damage which includes both patrimonial and non-
patrimonial loss. Since in a primary sense damage means patrimonial loss, some authors
define damage only in terms of a reduction of someone’s patrimony. Other authors regard
damage as a wide concept which comprises both pecuniary (patrimonial) and non-pecuniary
(non-patrimonial) loss. Three arguments can be advanced to prove that the wide concept of
damage is the correct approach: Firstly, patrimonial and non-patrimonial loss has a common
denominator, namely the diminution in the utility or quality of any legally protected interest
(patrimonial or personality). Secondly, legal practice employs the wide concept of damage –
the term “damage” or “loss”, if not defined in legislation, is interpreted in legal practice to
include both patrimonial and non-patrimonial loss. Thirdly, the action for pain and suffering
provides imperfect compensation for the infringement of physical-mental integrity
(personality interest) and has developed in conjunction with the Aquilian action as a remedy
aimed at compensation for patrimonial loss after bodily injuries. The recognition of both
these remedies illustrates the acceptance of the wide concept of damage.

The common factor between patrimonial and non-patrimonial loss is that in both the utility or
quality of a legally protected interest is infringed (ie the plaintiff loses something for which
he or she may receive money as compensation). There are also important differences
between patrimonial and non-patrimonial loss: Firstly, patrimonial loss can be directly
measured in money, while non-patrimonial loss is only indirectly measurable in this way.
Secondly, the extent of patrimonial loss can be determined with greater precision (ie market
value, reasonable cost of repairs) than the extent of non-patrimonial loss (subjectively
experienced and assessed by means of an equitable estimate). Thirdly, damages for
patrimonial loss (in the form of money) is a true equivalent for the financial loss suffered,
whereas in the case of non-patrimonial loss there is no real relationship between the money
received in the form of satisfaction and the injury to personality. Fourthly, in patrimonial loss
the utility of a patrimonial interest is impaired, whilst in non-patrimonial loss it is the quality
of a personality interest that is reduced.

Although wrongfulness and damage are two separate requirements for delictual liability, they
stand in a particular relationship to each other. To illustrate this we will supply a few
examples. Conduct can be described as wrongful only if it has caused a harmful consequence.
If X drives at 200km/h in an urban area but causes no accident, her conduct is not wrongful
for purposes of private law. It is also possible to act wrongfully without causing harm, eg
when A is on B’s land without a lawful reason but causes no harm. There can also be damage
without any wrongful act, eg when lightning (vis maior) causes harm.

The law denies compensation where bodily injuries prevent someone from earning money
illegally. Both damage and wrongfulness are absent – a person who earns money through
unlawful activities does not use his or her earning capacity as part of his or her legal
patrimony and consequently the frustration of such activities cannot constitute damage. If the
injured person can prove that he or she also has the capacity to earn money lawfully, they can
claim for the impaired potential to have earned income lawfully in future. The same applies
to the claim for loss of support where the breadwinner earned illegally – the value of the
dependant’s right to support will be proved by evidence of how the breadwinner could have
earned income lawfully.

Damage has a specific relationship with time and therefore we distinguish between past loss
and future or prospective loss (par 6.2).

TAKE SPECIAL NOTE OF THE DISTINCTION BETWEEN THE TERMS

"DAMAGE" AND "DAMAGES". IT IS INCORRECT TO STATE THAT THE
PLAINTIFF SUFFERED DAMAGES- THE PLAINTIFF SUFFERED DAMAGE AND
WILL CLAIM DAMAGES FOR THE DAMAGE SUFFERED. THE INCORRECT
USE OF THESE TWO TERMS IN ASSIGNMENTS AND THE PORTFOLIO WILL
RESULT IN LOST MARKS.

Par 3.1-3.3 read

Summary
Patrimonial loss is the diminution in the utility of a patrimonial interest in satisfying the
legally recognized needs of the person entitled to such interest. It is also defined as the loss or
reduction in value of a positive asset in someone’s patrimony or the creation or increase of a
negative element of his or her patrimony (a patrimonial debt).

The nature of a patrimony can be explained in different ways. In our early case law (Union
Government v Warneke 1911 AD 657; Oslo Land v Union Government 1938 AD 584)
patrimony is defined as a universitas of rights and duties. This definition reflects the so-called
juridical concept of patrimony. A point of criticism against this definition is whether rights
are in fact part of a patrimony and whether the objects of such rights should not rather qualify
as patrimonial elements. It is also asked whether obligations (debts) can be said to form part
of someone’s patrimony. These points of criticism do not imply that the traditional concept of
patrimony is unusable, but merely that adaptations are required. The juridical concept of
patrimony is the one which is the most compatible with legal practice and which should
therefore be accepted and theoretically developed.

A legally recognized relationship is required between a person and an object or interest

before the person may suffer damage in respect of it. Thus, X is generally not affected by
damage caused to Y’s property. The juridical concept of patrimony is intended to identify the
interests that may be elements of someone’s patrimony.

The patrimony of a person consists of positive and negative elements which constitute his or
her total patrimony or estate. However, patrimony does not merely concern rights, obligations
and expectancies as such, it concerns their monetary value because patrimonial loss must
necessarily be expressed in money.

Positive elements (assets) of someone’s patrimony (estate)

(a) Patrimonial rights
The following are patrimonial rights: real rights, immaterial property rights, personal rights,
personal immaterial property rights to earning capacity and creditworthiness and the personal
right not to be misled. The objects of patrimonial rights do not form part of someone’s
patrimony, although the reduction in their utility may constitute damage, since it causes a
reduction in the value of such rights.

(b) Expectations (spes) of patrimonial rights or benefits

The legally recognized expectation of a person to acquire patrimonial rights or benefits in
future. The possibility of making a profit may be recognized as an expectancy worthy of
protection. For example: X’s horse has a chance of one in three of winning a race and earning
prize money. Y injures the horse negligently and thus frustrates X’s expectation to receive the
winning prize. X should be able to recover a third of the prize money. Normally an
expectation has a present element (some or other factual basis) as well as a future element
(the probabilities in connection with the full realization of the spes).

Examples of expectations of patrimonial rights or benefits: expectation that a person has to

earn income in future by using his or her abilities, a contractual right to performance and a
spessuccessionis (expectation to an inheritance).

Chapter 3, fn 61 study
Pretorius v McCallum 2002 (2) SA 423 (C); Ries v Boland Bank PKS 2000 (4) SA 955 (C);
BOE Bank v Ries 2002 (2) SA 39 (SCA) study

An expectation must meet certain general requirements before it can be said to form part of
someone’s estate or patrimony: (1) the law must in principle recognize the type of
expectation as worthy of protection; (2) there must be a sufficient degree of probability or
possibility that the expectation would be realized; (3) the expectation must have a monetary
value; (4) the expectation must not contain an illegal element.
Negative elements of patrimony (estate)
(a) Patrimonial debts (expenses)
The creation of a debt may constitute damage even if the debtor has no assets in his or her
estate to satisfy such debt. Debts are considered to be independent patrimonial elements with
their own positive value, which means the greater the debt, the smaller the value of the
patrimony. Someone’s patrimony is burdened or reduced by the creation, acceleration or
increase of a debt or liability.

(b) Expectations of patrimonial debts

A damage-causing event may have the result that a probability is created that a person has to
incur future expenses, eg future medical expenses after an accident. As long as the anticipated
debt or expense is the reasonable result of the damage-causing event, it constitutes damage
even if it has not yet been incurred. When the debt is actually incurred, the expectation of a
debt becomes a negative patrimonial element.

Ways in which patrimonial damage may be caused

There are basically four ways in which patrimonial damage may be caused: (1) loss of a
patrimonial element (someone’s property is stolen); (2) reduction in value of patrimonial
element (damage to property); (3) creation or increase of a debt (expense) and delay in
receiving benefits (medical expenses); and (4) creation or acceleration of expectation of a
debt (future medical expenses).

Par 3.4-3.5 study

Par 5.1-5.4 read

Summary
Non-patrimonial loss is the diminution, as the result of a damage-causing event, in the
quality of the highly personal (or personality) interests of an individual in satisfying his or
her legally recognized needs, but which does not affect his or her patrimony. Non-
patrimonial loss is defined with reference to highly personal or personality interests. The
different rights of personality give an indication of the relevant personality interests and
determine the nature and extent of non-patrimonial loss (injury to personality). Our law
recognizes personality rights to physical and mental integrity (corpus), reputation, dignity,
feelings, privacy and identity. The interests covered by these rights may be referred to as a
legally recognized ‘non-patrimony’. The following interests form part of such a highly
personal ‘non-patrimony’: freedom from pain, emotional shock, psychological diseases,
psychiatric injury and physical suffering; the ability to enjoy the ordinary as well as the
particular amenities of life; the aesthetic interest in having a body which is not disfigured; the
ability to live for the full duration of one’s normally expected lifespan; freedom from any
physical infringement of one’s body; one’s good reputation in the eyes of the community;
one’s non-violated feelings of dignity, chastity, piety and religion; the interest in the
consortium of a spouse; and the maintenance of one’s privacy and identity. If one of these
highly personal interests is interfered with, the individual suffers from an infringement of a
personality right which could result in non-patrimonial loss.

One should also recognize that in a physical violation of the body (highly personal interest)
both non-patrimonial and patrimonial interests are infringed in that the injured person
experiences pain and suffering (non-patrimonial loss) and also incurs medical expenses or has
the expectation of incurring such expenses (patrimonial loss).

Par 6.1-6.5 read

Summary
Prospective damage is damage in the form of patrimonial and non-patrimonial loss which
will, with a sufficient degree of probability or possibility, materialize after the date of
assessment of damage resulting from an earlier damage-causing event. Take note of the
difference between prospective damage and lucrumcessans. The latter is seen as lost profit
or lost income, whereas prospective loss also includes future expenses, which is not part of
lucrumcessans. On the other hand, past loss of profit cannot be prospective loss, but it is
classified as past lucrumcessans. The reason for classifying it as lucrumcessans is because the
assessment is done with the aid of probabilities and hypotheses. Therefore not all prospective
damage amounts to lucrumcessans and not all lucrumcessans can be described as prospective
loss.

When analysing the nature of prospective damage it is important to remember that

prospective damage may take the form of prospective patrimonial loss as well as prospective
non-patrimonial loss. Damage is relative to time and therefore it can be subdivided into, for
example, damage before the accrual of a cause of action, damage from the moment of
liability to the commencement of the action, damage from the commencement of the action
up to the time of judgment, damage up to the stage of an appeal and damage beyond this date.
Damage is thus not always a past fact, it will depend from which moment it is assessed. In
addition to any diminution of utility or quality which has already taken place (past loss), a
further reduction may often be expected in future (future loss). The degree of probability or
possibility with which this reduction is to be expected, must be a reasonable possibility.
Apparently, a possibility of less than 10 per cent will not be reasonable.

Activity 1

Reinecke (1988 De Jure 236) argues that loss of earning capacity (loss of future income)
does not constitute prospective loss, since nothing happens in future which completes the
damage.

Think about this statement and make up your own opinion on the correctness of his
statement. Make a list of reasons or arguments why you will agree or disagree with him.
Once you have done that, you can read further.

Feedback on Activity

Before we can evaluate the correctness of his statement, we need to understand that
prospective loss rests on two legs; it has a prospective element or dimension as well as a
present one. This implies that prospective loss is not merely something which will happen in
future if one looks into the future from the moment of assessment of damage, since it may
also be seen as the present impairment of an expectation of something in future. Study again
the discussion on expectations as an example of a positive element of someone’s patrimony
discussed above. There we indicated that an expectation has a present element as well as a
future element. In other words, prospective loss as the frustration of a future expectancy is
co-determined by how his or her present interests are affected by a damage-causing event.
Even though prospective loss is literally damage which will only manifest itself in money or
otherwise fully in future, its basis is to be found in the impairment of the plaintiff’s present
interests.

Boberg (Delict 487) is of the opinion that damages cannot literally be assessed as at the date
of the wrong. The plaintiff’s loss depends on what happens to him or her after the wrong has
been committed. The economic sequelae (consequences) of, for example, bodily injuries can
only be determined with regard to the plaintiff’s subsequent treatment by his doctors and his
employers. In an infringement of earning capacity, such as in Reinecke’s example, it is only
the damage-causing event which is completed. Probable future events which co-determine the
content of the expectancy must also be considered. The financial position of the plaintiff will
in future be affected whenever he or she does not receive the expected income (see fn 20,
chapter 6). Our law recognises this fact by taking into account future contingencies and
discounting future loss to the date of trial.

One can therefore conclude that Reinecke’s theory depends too much on the present
manifestation of future damage, whereas our practice attaches too much importance to the
prospective leg of such loss and in this process fails to appreciate the true nature of
prospective damage.

Prospective loss is assessed through a comparison of the hypothetical course of events

before and after a damage-causing event. The hypothetical position (expectation) before the
damage-causing event has become unreal and this must be compared with the hypothetical
position after the damage-causing event which has become real. The new expectation or
hypothesis caused by the damage-causing event must be compared with the expectation or
hypothesis existing before the damage-causing event. Future damage is thus the difference
between the present values of these two expectations. The whole process of the determination
of future damage also involves causation (between the hypothetical facts) since causation and
assessment of loss are inseparably linked.

Five forms of prospective patrimonial loss are recognized in practice:

(1) Future expenses on account of a damage-causing event, such as future medical expenses.
(2) Loss of future income.
(3) Loss of business, contractual or professional profit.
(4) Loss of prospective support.
(5) Loss of a chance, for example where a horse with a one in three chance of winning a race
and earning prize money for its owner is negligently injured.
 Par 8.4 study
Standard Chartered Bank of Canada v Nedperm Bank Ltd 1994 (4) SA 747 (A) 774-777
study

Par 8.1-8.2 read

Summary
Damages are defined as the monetary equivalent of damage awarded to a person with the
object of eliminating as fully as possible his or her past as well as future damage. Damages
must be paid in money, but it doesn’t have to be in a single lump sum since damages may
also take the form of instalments or periodic payments, as well as interim payments. These
exceptions are found in sections 17(4) and 17(6) of the Road Accident Fund Act 56 of 1996
and section 47(4) of the Compensation for Occupational Injuries and Diseases Act 130 of
1993. Damages are awarded for both patrimonial and non-patrimonial loss. The primary
object of damages (see sect 1.5) is to neutralize loss through the addition of a new
patrimonial element, such as an undertaking by the Road Accident Fund to pay medical
expenses as incurred.

Damages as remedy may be supplemented or replaced by a claim for restitution in kind of

the interests of the plaintiff as they were before the damage-causing event. Examples of
restitution in kind are the eviction of a lessee, the delivery of property or the release of a
person. Damages are the primary remedy for loss already suffered and restitution in kind
should not be the point of departure. However, through an award of damages the law seeks to
attain the financial equivalent of restitution in kind. In the case of breach of contract one
could argue that a claim for specific performance is a claim for restitution in kind. In delictual
liability an order for restitution in kind may generally not be given and compensation will
mostly take the form of an award of damages.

Damages must be expressed in money. When damages are calculated in a foreign currency,
the amount should be converted to South African rands, but it may also be paid in that foreign
currency. The conversion to rands should be done when payment is made. See Standard
Chartered Bank of Canada v Nedperm Bank Ltd 1994 (4) SA 747 (A) 774-777.

The principle of nominalism is applicable in regard to the payment of an amount of damages.

This principle entails that the amount of damages may not be adjusted for inflation after it has
been determined. The plaintiff may, however, claim mora interest to counter the negative
effects of inflation. See the discussion in sect 1.8 on mora interest.

Par 9.1-9.3 read

Summary
In patrimonial loss the affected interests are directly measurable in money. Damages in the
form of money therefore provide a true equivalent of such loss and in that sense effects
financial restitution. The damages awarded should place the plaintiff in the position he or she
would have occupied but for the damage-causing event, but the law does not take the
plaintiff’s emotions into account.
Reparation or indemnification of non-patrimonial loss is possible in terms of the
actioiniuriarum, the action for pain and suffering, the actio de pauperie and certain statutory
remedies (see sect 1.3). In non-patrimonial loss the affected interests do not have a direct
monetary value and cannot be ‘naturally’ expressed as a sum of money. This implies that
monetary compensation for non-patrimonial loss cannot literally place the plaintiff in the
position he or she would have been in had the damage-causing event not occurred. In Topic 4
the assessment of non-patrimonial loss will be discussed in detail.

Par 14.2 study

Learning Unit 1
1.2 Who may claim and who has to pay?

Par 11.1 study

Par 11.2 and fn 3, 27, 40, 41, 43, 48, 91, 113, 130 study

Par 2.3.1 (page 31) text and fn 34 and 35

H v Fetal Assessment Centre [2014] ZACC 34

Road Accident Fund v Mtati 2005 (6) SA 215 (SCA)
Guardian National Ins Co Ltd v Van Gool 1992 (4) SA 61 (A)
SantamBpk v Henery 1999 (3) SA 421 (A)
Amod v Multilateral Motor Vehicle Accidents Fund 1999 (4) SA 1319 (SCA)
Du Plessis v Road Accident Fund 2004 (1) SA 359 (SCA)
Volks v Robinson 2005 (5) BCLR 446 (CC)
Nodada Funeral Services CC v The Master 2003 (4) SA 422 (TkH)
Van der Merwe v Road Accident Fund 2006 (4) SA 230 (CC)
Paixao v Road Accident Fund 2012 (6) SA 377 (SCA)

Robinson 2007 (3) PELJ 70 (a copy is available in "Additional Resources")

Learning Unit 1

1.3 Source of the claim and concurrence of claims

Study

Par 1.5, 1.6.5 and fn 168

Par 11.8, 11.9 and fn 357, 420
Par 12.22.5, 12.24.1,Par 14.1
Fose v Minister of Safety and Security1997 (3) SA 786 (CC)
MEC Department of Welfare, Eastern Cape v Kate 2006 (4) SA 478 (SCA)
Holtzhausen v ABSA Bank Ltd 2008 (5) SA 630 (SCA)
Min of Police v Mboweni [2014] ZASCA 107 (5 September 2014)
DE v RH 2015 (5) SA 83 (CC)

ASSIGNMENT 2 (Unique number 735269) - due date 01/03/2018

THIS ASSIGNMENT COVERS STUDY MATERIAL FROM LEARNING UNITS 1.1 -

1.3.

NB: IT IS COMPULSORY TO INCLUDE AN "ACADEMIC DECLARATION" IN

EACH WRITTEN ASSIGNMENT SUBMITTED IN THIS MODULE!The academic
declaration of honesty must be included on the first page of the submitted assignment.
The marker will not search for the academic declaration. If it does not appear on the
first page of the submitted assignment, the assignment will be returned unmarked.

Make use of the example of an academic declaration to be found under "Additional

Resources".

INSTRUCTIONS:

This assignment is based on the Factual scenario provided both under Additional
Resources and Learning Unit 7 titled "Factual Scenario". Please note that you may
not alter the facts of the factual scenario in any manner. Both questions MUST be
answered in the Tables provided under Additional Resources.

Study the definitions of the following terms: (i) patrimonial loss, (ii) non-patrimonial
loss, (iii) prospective loss, (iv) damnum emergens and (v) collateral benefits. Then
read “Factual scenario 1 – Delictual damages” in Learning Unit 6 or under
“Additional Resources” and answer the two questions below.

Question 1
From the Factual scenario: Delictual damages, identify examples for each of the five
(5) terms stated above. Each term represents a category or type of damage. Make
use of the “Assessment criteria” to assist you in answering the question.

(10)

ASSESSMENT CRITERIA FOR QUESTION 1

Excellent Good Average Poor (0-3)

(i) Patrimonial loss Listed 6 Listed 4 Listed 2 - 3 listed 1 or no
 examples. examples. examples. example.
(ii) Non- Listed 4 Listed 3 Listed 2 Listed only 1 or no
patrimonial loss examples. examples. examples. example.
(iii) Prospective Listed 4 Listed 3 Listed 2 Listed only 1 or no
loss examples. examples. examples. example.

(iv) Damnum Listed 4 Listed 3 Listed 2 Listed only 1 or no

emergens examples. examples. examples. example.
(v) Collateral Listed 2 Listed 1 or 2 Listed 1
Listed no examples.
benefits examples. examples. example.

The emphasis in this question falls on the examples of damage suffered and NOT on who
suffered the loss. Therefore, there will be no duplicate marks for any of the losses mentioned
more than once in the same category. For example, the common patrimonial loss suffered in
the factual scenario is medical and related expenses.

Do not provide any explanations or the description of the extent of the injury. Be as
specific as possible when answering this question. If you are uncertain about this
assignment question, contact one of your lecturers.

Question 2
Identify at least 10 possible claims to be instituted in accordance with Factual
scenario – Delictual damages. When identifying the claim also state the loss suffered
by the plaintiff, the defendant liable for the loss and the source of each claim. Make
use of the “Assessment criteria” below to assist you in answering the question.

ASSESSMENT CRITERIA FOR QUESTION 1.2

Excellent Good Average Poor

Identified the
Listed 9 - 10 Listed 6 - 8 Listed 4 - 5
possible claims Listed 1 - 3 claims
claims and claims and claims and
and losses and losses suffered.
losses suffered. losses suffered. losses suffered.
suffered.
Identified the
Listed all Listed most Listed some Listed no or incorrect
source of each
sources. sources. sources. sources.
claim.
Identified the Listed all Listed most Listed some Listed no or
plaintiffs. plaintiffs. plaintiffs. plaintiffs. incorrect plaintiffs.
Identified the Listed all Listed most Listed some Listed no or incorrect
defendants. defendants. defendants. defendants. defendants.

We provide the following to assist you in answering the question:

An example of a possible claim is a delictual claim for damage to property (loss
suffered; iPhone X) instituted by Sphelele Nkosi (plaintiff) against Office of the Mayor
of Tshwane (1st defendant) and Simon Maphanga (2nd defendant) in terms of
vicarious liability (source of the claim) You are encouraged to use this as your
first example in Question 2.

If you identify a loss suffered that could be claimed from the Road Accident Fund
(statutory claim), note that the source of such a claim will be the Road Accident Fund
Act 56 of 1996 (as amended) and the defendant will be the Road Accident Fund. Be
as specific as possible when answering this question. If you are uncertain,
contact one of your lecturers.

We provided you with an example of how question 2 would be assessed. Ensure that
all your answers are complete to earn maximum marks.

After you have submitted Assignment 2, participate in

Group activity 2 in your allocated group.
GROUP ALLOCATIONS CAN ONLY BE DONE AFTER CLOSE OF
REGISTRATIONS

How to find your allocated group and participate on the

Discussions page?
1. Go to "Additional Resources" (on the left-hand side of your screen) and
open the folder "Group Allocations".
2. Click and open one of the files with the Group allocations for 2018 semester
1.
3. Students have been divided into groups according to student numbers.
Search for your student number under the different groups. Remember your
group number.
4. Go to "Discussions" (on the left-hand side of your screen) and click on the
link "Group Activity 2". (Do not confuse "Discussions" with "Discussion
Forums".)
5. Click on your allocated group number and post a message according to the
instructions.

PLEASE DO NOT CREATE YOUR OWN GROUP. POST

YOUR MESSAGE IN THE GROUPS ALREADY CREATED.

Group Activity 2
BBM has been married to his wife BM since 01/01/2001. They have two kids together; a girl
born on 06/06/2006 and a boy born on 10/10/2008. As is often the case in some long term
relationships, their marital life became somewhat unpleasant in and around October 2014.
During this difficult time, BM met MTV and subsequently started an extra-marital affair in
and around December of that year. In and around March 2015, MTV enticed BM to leave the
marital home and cohabit with him. Four months into this cohabitation, BM instituted divorce
action against BBM. In his plea to the summons, BBM concedes that the marital union has
broken down irretrievably. However, BBM is of the view that the major factor for the
breakdown is the adulterous affair between BM and MTV.

BBM wants to institute a civil suit against either BM and/or MTV for their actions. He
approaches your group for legal advice.

Your discussion should stress the following points:

 Source of the claim;

 Rights infringed;
 Status of the claim in SA law; AND
 Amount claimable (maximum).

Please note that the above are indicated as pointers to assist you with the structure of the
discussion. You may explore any legal argument and may also do a comparative study with
countries with a Roman-Dutch or English legal tradition. Refer in your discussions to
relevant case law as authority for your submissions. Each student in the group must post a
maximum of five (5) messages. However do not leave numerous messages one after the
other. Each student must first write a consolidated opinion of the issue(s) and respond to
fellow peers in the four (4) subsequent postings. Your four responses to fellow students may
not exceed 5 lines in length. See the assessment criteria for this group discussion below.

ASSESSMENT CRITERIA FOR GROUP ACTIVITY 2

Assessment Excellent Good Average Poor

criteria (4.5-5) (3-4) (1.5-2.5) (0-1)
Comprehensive
and appropriate
comments.
Appropriate
Thoughtful, No response to
Quality of comments and Comments
reflective and other postings.
thoughts and responds respectfully on
respectful of other Responds, but
response to respectfully to other students’
students’ with minimum
others (10%) other students’ postings.
comments. effort.
postings.
Shares insights in
replies to other
students.
Understanding Clear Some Posting is on No posting.
content and understanding of understanding of topic, but not Response not
relevance of discussion topic. discussion. enough relevant to
discussion (40%) Comments very Some reference reflection. topic.
relevant to topic. made, but taken out Response is
Supports opinion of context. relevant to
with authority. Response is posting, but
Shares relevant relevant to posting. without authority.
case law. Minimum support
for opinion.
Exceptional ability
to critically Able to analyse
Little or no
analyse ideas for other students’
Critical analysis.
meaningful ideas and insights.
evaluation of Little Only one or no
discussion. Contributes to
content and contribution to contribution.
Supplies finding answers to
context (20%) finding the
meaningful the stated
answers.
answers to the questions.
stated questions.
Participates
beyond the
Participates with
required number
the required
of postings. Participates
number of postings.
Extends the minimally and
Personal Participates, but
discussion with without probing Only one or no
contribution to does not post
questions or questions for postings.
discussion (20%) anything that
examples that further
encourages others
encourage others. discussions.
to respond to the
Motivates other
posting.
students to
contribute.
Language is Spelling and Serious
excellent and grammar errors spelling and
Language is clear
beyond what is detract from the grammar
and understandable.
expected at this topic and make it errors.
Language (10%) Only a few spelling
level. hard to Inappropriate
and grammatical
No spelling or understand the language for
mistakes.
grammatical meaning of the university
mistakes. postings. level.

Learning Unit 1

1.4 Assessment of damages

Par4.1-4.2.2; Par 4.2.5-4.2.6; Par 4.3; Par 6.6-6.7 and fn 90, 91, 99; Par 8.3, 8.8 study
Jowell v Bramwell-Jones 2000 (3) SA 274 (SCA) study
Burger v Union National South British Ins Co 1975 (4) SA 72 (W) study

Par 4.5-4.6 and Par 9.4-9.5 read

Summary

It is important to know with reference to which date the comparative method of

determining damage should be used. Various dates could be relevant: In the case of a
delictual claim, the date of the delict, the date the first loss occurs, the date of judgment or the
date on which payment is made may be relevant; in the case of a contractual claim, the date
on which the contract was signed, the date of breach of contract, the date determined for
performance or the date of the judgment may be relevant. The value of a patrimonial element
is not static, but may change over time, and considering the effect of inflation, the date on
which assessment must take place could make a huge difference in the calculation of the
award. The relevant time of assessment should be the latest stage in a lawsuit when new
evidence may be submitted, that is, at the time the judgment commences.

According to current law, the date of the commission of the delict is usually the decisive
moment for determining delictual damage (including prospective damage). The date on
which the first damage occurs is the earliest date on which all the elements of a delict are
present. The courts do, however, take relevant information or facts that become available
after that date into account in the quantification of the damages. An example would be where
X receives certain benefits as a result of the damage-causing event, or where a plaintiff dies
before the trial; in the latter case, the plaintiff’s death is relevant in regard to that claim. In
the case of breach of contract, the date with reference to which damage is to be assessed is
usually the date of breach of contract or the date of performance, depending on the
provisions in the contract. In the case of repudiation, the correct date could either be the date
of performance or the date of cancellation.

Damage and factual causation are two separate requirements for both contractual and
delictual claims for compensation. These two concepts are, however, interdependent, since
factual causation can exist only in respect of damage and damage can only be caused by a
particular kind of event.

We will illustrate this by referring to a practical example where causation and damage are
relevant. In cases where the plaintiff suffers from a condition that existed before the damage-
causing event and this condition renders damage more likely or more extensive, one of two
possibilities exists: The court can either allow the full claim or reduce the claim due to the
pre-existing condition. An example would be if X has a degenerative back condition that is
asymptomatic, but owing to an accident, this condition is intensified to such an extent that X
has to undergo a back operation. The strict application of the talem-qualem rule in this case
would lead to the full liability of the defendant for all the losses suffered. The talem-qualem
rule states that the defendant must take the victim as they find him/her. This rule is, however,
tempered if it can be proven – by way of factual evidence – that the plaintiff would, in any
event, at a later stage have shown symptoms or effects of his/her pre-existing condition. The
courts will make a contingency adjustment, but the defendant would, in principle, remain
liable for the foreseeable harm. The contingency must be applied according to the degree of
probability proven.
In English law, the expression “damages” is used to denote both compensation for
patrimonial loss and compensation and satisfaction for non-patrimonial loss.
Compensation for patrimonial loss is awarded with the actiolegisAquiliae. The compensation
awarded must eliminate, as far as money can do, the loss suffered. In the case of patrimonial
loss, the compensation received in money can be a true equivalent of the loss suffered.
Satisfaction for non-patrimonial loss is awarded with the actioiniuriarum, which may be
instituted for an intentional infringement of someone’s personality. Satisfaction is the law’s
answer to an injury to personality for which money is no natural equivalent and where a type
of factual or financial restitution is impossible. The word “satisfaction” denotes different
concepts, such as penance, retribution and reparation. In practice, satisfaction operates by
neutralising a plaintiff’s feelings of outrage and revenge in that the defendant is compelled to
pay an amount of money as a private penalty to the plaintiff. This involves a more refined
form of the talio principle, in terms of which an aggrieved person may not take the law into
his or her own hands. The penal function of the actioiniuriarum is criticised on the basis that
punishment is not a purpose of the law of delict, but is the purview of criminal law. Today,
satisfaction maintains a position somewhere between compensation and punishment.

1.5 Purpose or object of damages

Par 1.3; Par 8.5-8.7, 8.9 and fn 83, 104 study

Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) study
Min of Police v Mboweni [2014] ZASCA 107 (5 September 2014) study

After you have studied the prescribed material attempt the activity below.

Activity 3

Indicate whether the following statements are True or False and supplement
your answers with authority.

1. It is a generally acceptable view in our law that the object of damages is the
provision of just, logical and practical rules and principles for solving problems
regarding the determination of damage, damages and satisfaction.

2. A court may still order punitive damages in our law.

3. Perfect compensation is not attainable in a system that binds itself to the once-
and-for-all form of compensation.

4. In the law of contract, compensatory and restitutionary damages have the same
effect.

5. In Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) a claim for
constitutional damages was rejected by the Constitutional Court.
First complete the activity before you read the
feedback provided below!

Feedback on Activity

1 False - According to the authors Potgieter et al, in Law of Damages 3 ed (2013),

the object of damages is not what is stated above, but rather the “fullest possible
compensation of damages”. See also par 8.5. The statement provided above is
actually the object of the law of damages.

2 False - It is no longer possible to order punitive damages in our law. The

Conventional Penalties Act 15 of 1962 is also primarily compensatory and not
punitive, despite what the name suggests. See par 8.7 and the decision in the Fose
case.

3 True - The once-and-for-all rule means that the plaintiff has only one chance to
claim for all damage arising from a single cause of action (see par 1.7.2).
Therefore, because probable future loss is a reality, the final award (including
future loss) normally represents an “educated guess”, which is more likely to prove
either too high or too little. See par 8.5 and 6.7.1. Perfect compensation means that
every cent expended – or likely to be expended or lost – would have to be
compensated. However, since human beings have no knowledge of the future, it is
impossible to estimate with certainty the cost of future loss.

4 False - Compensatory damages refer to damages calculated to place the

contracting party in the position he/she would have occupied if there had been
proper performance in terms of the contract, that is, positive interesse. On the other
hand, restitutionary damages are seen as compensation assessed to place the
contracting party in the position he/she was in immediately before entering into the
contract, that is, negative interesse. The two forms of damages actually achieve
opposite purposes. See par 8.9.3.

5 True - See the court’s reasoning at 827–828 in par 8.7 fn 104.

1.6 Compensating advantages

Par 10.1-10.2 read

Summary
A damage-causing event often not only causes loss but also has the result that a plaintiff
receives some benefit. For example where X’s car is negligently damaged by Y and his
grandmother feels sorry for him and gives him R5 000 or his insurance pays out. What role
do these benefits play in assessing X’s damage and the compensation to be paid by Y? When
benefits from a third party are taken into account, those benefits are called compensating
advantages. If a benefit is disregarded in calculating damages, it is said that the collateral
source rule applies (the matter is collateral and does not concern the defendant) or that the
benefit is res inter alios acta.

Par 10.2.4, 10.3-10.11; Par 10.14, 10.16. 10.17.5 study

1.7 Duty to mitigate

Par 11.3 and fn 143, 159; Par 10.12; Par 13.3 fn 45 study
Zweni v Modimogale 1993 (2) SA 192 (BA) study
Kellerman v SATS 1993 (4) SA 872 (C) study

1.8 Mora interest and inflation

Par 8.10; Par 11.7 and fn 319, 326, 332 study

SA Eagle Insurance v Hartley 1990 (4) SA 833 (A) study
W v Minister of Police [2014] ZASCA 108 (11 September 2014) par [42] and footnote 6
study

ASSIGNMENT 3 (Unique number 702889) - due date 08/03/2018

Indicate which one of the following statements is CORRECT or the MOST CORRECT.

Question 1
This question is taken from the Factual scenario: Delictual damages.

Grandfather John had back problems before the accident, but after the accident his back
deteriorated to such an extent that he had to undergo an operation.
The following principle will apply to his situation:

1. The court will always allow the full claim under such circumstances.
2. The court will always reduce the claim in as far as the operation was probable.
3. The court will reduce the claim unless John can prove by way of factual evidence that he would most
probably not in the future have any symptoms of this pre-exisiting back condition.
4. The court will reduce the claim if the defendant can prove by way of factual evidence that John would in
any event at a later stage have shown symptoms of this pre-existing back condition.
5. The talem-qualem rule is, as a general rule, applied strictly in all cases.
(2)
Question 2
The assessment and subsequent quantification of Granfather John's losses will be premised on
probabilities. As a result, contingency adjustments will have to be made.

According to current practice in the law of damages...

1. the plaintiff need to prove future loss with certainty to be entitled to such losses.
2. the plaintiff need only prove 51% probability of loss to be entitled to the full claim.
3. contingencies are the normal vicissitudes of life.
4. contingencies customarily has an adverse effect on damages.
5. contingencies will always result in the reduction of the amount of damages.
(2)

Question 3

1. The plaintiff carries the burden of proof in determining the value and relevance of contingencies in the
assessment of future loss.
2. General contingencies are all vicissitudes relevant to everyone and therefore the court may take judicial
notice of same.
3. General contingencies are all vicissitudes relevant to everyone and therefore call for a higher percentage
of deduction.
4. Specific contingencies are all vicissitudes relevant to a particular individual and require proof on a
balance of probabilities.
5. Specific contingencies are all vicissitudes relevant to a particular individual but the quantification vary
depending on the circumstances.
(2)

Question 4
In the South African positive law we follow the wide concept of damage...

1. which includes both contractual and delictual liability.

2. which includes both past and future loss.
3. which includes both patrimonial and non-patrimonial loss.
4. which provides for perfect compensation under all circumstances.
5. even though the application of the different remedies available in South African law does not
demonstrate this wide concept.
(2)

Question 5
The following form of harm is regarded as legally recognised form of damage or loss which could
lead to liability:

1. Loss of comfort and society of a spouse who has committed adultery.

2. Environmental damage.
3. Pain and suffering due to breach of contract.
4. Medical expenses due to natural causes.
5. Frustration of an expectation to earn money through illegal activities.
(2)

Question 6
The general object of an award of damages...

1. is to ensure natural justice between and/or amongst litigants.

2. is to ensure perfect compensation for loss occasioned by the damage-causing event.
3. is to ensure the fullest possible compensation for loss occasioned by the damage-causing event.
4. is to return the plaintiff to the hypothetical position he or she would have been in 'but for' the damage-
causing event.
5. is the provision of just, logical and practical rules and principles for solving problems regarding the
determination of damage, damages and satisfaction.
(2)

Question 7
recognised form of damage as an actionable remedy...

1. was recognized in Fose v Minister for Safety and Security 1997 (CC).
2. was recognized and awarded in Fose v Minister for Safety and Security 1997 (CC).
3. was declined as a litigious claim in MEC Department of Welfare, Eastern Cape v Kate 2006 (SCA).
4. was recognized in Holtzhausen v ABSA Bank Ltd 2008 (SCA).
5. has not been recognized as an actionable remedy.
(2)

Question 8
The collateral source rule applies to the assessment of damages...

1. when the benefit received by the plaintiff is regulated by statute.

2. when the benefit received by the plaintiff is regarded as res inter alios acta.
3. when the benefit received by the plaintiff is regarded as a compensating advantage.
4. 1 and 2.
5. 1 and 3.
(2)

Question 9
In the circumstances where the plaintiff receives pension benefits...

1. the benefits will be taken into account if the state is liable to make the payment as pronounced in
Dippenaar v Shield Insurance Company 1979 (A).
2. the benefits will be disregarded if the state is liable to make the payment according to Dippenaar v
Shield Insurance Company 1979 (A).
3. for liability in terms of the Military Pensions Act 84 of 1976, it will be regarded as a compensating
advantage.
4. 1 and 3.
5. 2 and 3.
(2)

Question 10
When receiving a benefit out of sympathy from a family member or friend after the damage-causing
event...

1. the benefit is regarded as a compensating advantage.

2. the benefit is regarded as a res inter alios acta.
3. the collateral source rule is applied to the situation.
4. 1 and 3.
5. 2 and 3.
(2)

TOTAL: 20