Student number: 67293646

Student name: Makina Boitumelo

Course code: LPL4801
Assessment number: 01

Question 1

In the case of Transnet Ltd v Sechaba Photoscan (Pty) Ltd (2005) (1) SA 299 SCA,
the court said the following with regards to the assessment of damage/s in the South
African law of damages jurisprudence, ‘it is now beyond question that damages in
delict (and contract) are assessed according to the comparative method’1. With that
being said it now backs the question, what is comparative method, and what is its
relevance and validity with regards to the assessment of damages within the South
African law of damages jurisprudence.

The comparative method is the method employed to fathom the quantum of

damages suffered by one party to the benefit of the other by comparing the position
before the unlawful damage causing event and after the damage causing event, the
doctrine widely accepted by our law and the Transnet case is a beacon for this wide
acceptance.

This now brings us to the contrasting of the doctrine of the sum-formula approach
and the concrete concept of damage. We will explore which between the latter and
the former has a place in our legal system when coming to the assessment of
damages. The sum-formular approach as a method of ascertaining patrimonial
losses has been the basis for the nature and assessment of patrimonial losses as it
may. In terms of the sum-formula approach this is a ‘negative difference between a
person’s current patrimonial position after the occurrence of the damage-causing
event and his or her patrimonial position which would hypothetically have existed if
the damage-causing event had not taken place’2 what this entails is that the damage
would be calculated hypothetically, the current sum is compared with the
hypothetical sum. Its essentialia is deeply rooted in the method of comparison of the
before and after what this mean is that they compare the ‘plaintiff’s present
patrimonial position after the damage-causing event with the patrimonial position
which would have existed but for the damage-causing event’3. The rule operates
under the circumstance that the plaintiff’s current patrimonial standing has to be
determined first before they could ascertain the plaintiff’s hypothetical patrimonial
standing. There is a requirement that there should be a damage causing event
before the principle could operate.

In as much as the sum formular approach has been widely accepted and employed
within our law, it has been subject of many criticisms, first being that it lacked

1
Transnet Ltd v Sechaba Photoscan (Pty) Ltd (2005) (1) SA 299 SCA para 15.
2
Potgieter, J.M, Visser & Potgieter Law of Damages (3rd ed Juta Cape Town 2012) 72.
3
Potgieter, J.M, Visser & Potgieter Law of Damages (3rd ed Juta Cape Town 2012) 73.
‘common-law authority’4, be that is it may, it has been stated that this critic holds no
weight because the principle has been employed quite numerous times in our legal
system and it has firm stand for it to be going aback to refer to certain authorities as
the critics intimate.

The second is the “anonymity of sum expressing damage”, as intimated before that
damage is the differential resultant of two sums, the other is refereed to as the
anonymous, remember the hypothetical value to be ascertained, this critic intimates
that there must be a way in which they would indicate how the anonymous sum was
reached.

Third critic being that ‘’sum-formula may cause confusion between patrimonial and
causal elements of damage’’5, it is satisfied that once damage has been fathomed, it
simultaneously has been shown that the damage-causing event is a necessary
condition of the damage causing event in question.

Fourth and last being that it ‘has no use as theoretical notion’6

According to some views, damage or loss are indeed determined by and expressed
in terms of a comparative formula, but no comparison is made to evaluate each
influence of a damage-causing event on a person’s patrimonial assets. The individual
heads of damage are separately determined and then added up to express the total
damage7.

Now this brings us to the concept of concrete concept of damage and its place in our
law regarding the assessment of damages. The concrete concept of damage
suggests that instead of looking at the differential resulting from the ascertainment of
the plaintiff’s current patrimonial situation and their hypothetical values, one should
look at the deterioration or withdrawal on the patrimony of the other party thereof and
further indicates that it is concerned with the individual heads of damage.

As our point of departure, one would ask whether for the law to employ the concrete
sum formula approach or the concrete concept of damage, as a means of
ascertaining damages. In order to come to that conclusion we have to consider the
difference between the two and which is more favourable to the aggrieved parties.

4
Potgieter, J.M, Visser & Potgieter Law of Damages (3rd ed Juta Cape Town 2012) 77.
5
Potgieter, J.M, Visser & Potgieter Law of Damages (3rd ed Juta Cape Town 2012) 77.
6
Potgieter, J.M, Visser & Potgieter Law of Damages (3rd ed Juta Cape Town 2012) 77.
7
Potgieter, J.M, Visser & Potgieter Law of Damages (3rd ed Juta Cape Town 2012) 77.
 Grading Rubric for Assignment 01
Possible scores

Criteria 0-1 2-3 4 5

Organization Writing lacks logical
organization. No paragraphs
to indicate flow of reasoning
Writing is coherent and
logically organized. Clear
paragraphing
Writing is coherent and
logically organized with
transitions used between
ideas and paragraphs to create
coherence. Overall unity of
ideas is present.
Writing shows high degree of attention
to logic and reasoning of points. Unity
clearly leads the reader to the
conclusion and stirs thought regarding
the topic.

0-3 4-6 7-8 9-10

Level of Content Shows some thinking and
Reasoning. No reference
made to case law and
scholarly articles
Most ideas referenced, but
lack cogent reasoning and
balance of thought
Most ideas correctly
referenced and followed by
clear reasoning
Content indicates synthesis of ideas, in-
depth analysis and evidences original
thought and support for the topic.
Referencing in accordance with style
and footnotes are part of writing.

0-1
Development Main points lack detailed
development. Ideas are
vague with little evidence of
critical thinking.
0-1
Grammar & Spelling, punctuation, and
grammatical errors create
Mechanics distraction, making reading
difficult; fragments, comma
splices, run-ons evident.
Errors are frequent.
2-3
Main points are present with
limited detail and
development. Reference is
made to the subject
Damages in general.
2-3
Most spelling, punctuation,
and grammar correct allowing
reader to progress though
essay. Some errors remain.
4 5
Main points well developed Main points well developed with high
with quality supporting details quality and quantity support. Most
and quantity. A clear ideas are developed, and reference to
understanding where the the subject damages is clear and
concept fits in the field of logical.
damages
4 5
Essay has few spelling, Essay is free of distracting spelling,
punctuation, and grammatical punctuation, and grammatical errors;
errors allowing reader to absent of fragments, comma splices,
follow ideas clearly. Very and run-ons.
few fragments or run-ons.
 ACADEMIC DECLARATION OF HONESTY

Declaration: ……………………………..

1. I understand what academic dishonesty entails and am aware of UNISA’s

policies in this regard.
2. I declare that this assignment is my own, original work. Where I have used
someone else’s work, I have indicated this by using the prescribed style of
referencing. Every contribution to, and quotation in this assignment from the work
or works of other people has been referenced according to this style.
3. I have not allowed, and will not allow, anyone to copy my work with the intention
of passing it off as his or her own work.
4. I did not make use of another student’s work and submitted it as my own.

NAME: Makina Boitumelo

STUDENT

NUMBER:

67293646

MODULE CODE:

LPL4802

SIGNATURE:

DATE: 27 Mar. 24

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