types of damages in south african law

The award of constitutional damages, as a result, would not have served the interests of society, nor would it be a deterrent that would prevent the future violation of rights. South African courts have accepted that this relief may include a form of compensatory damages known as 'constitutional damages'. In order to mitigate your loss, you must stop the flow of water, even if it means contracting the service of another plumber and paying for it yourself. D Collier-Reed and K Lehmann (ed) Basic Principles of Business Law (2006) LexisNexis: South Africa. Here’s how it works. Become your target audience’s go-to resource for today’s hottest topics. concerning the law of contract in the South African courts. Damages awarded for actual loss, to place the plaintiff in a position that she would have been in had she not suffered the wrong complained of. But advocate Tembeka Ngcukaitobi says there is a “very strong case” for holding the South African Post Office — an organ of state — liable to pay damages to the Mrwetyana family. The innocent party need only prove that the particular damage was of the kind that flows naturally and generally from the type of breach in question. Damages that arise in the ordinary course of events from the breach of contract are called ordinary damages. Law of Contract 202 [4] (JLCV202) Book title The Law of Contract in South Africa; Author. The Komape family sought constitutional damages, a delictual claim of damages for emotional trauma and shock, and other relief, such as medical expenses, against the Department of Basic Education in South Africa. But the fact is that you cannot sit back and do nothing to reduce a loss that you can see looming ahead, and still expect to be compensated for the whole amount. It should be noted that a class action had never been brought before in South Africa and there is no legislation that allows for such proceedings. Save my name, email, and website in this browser for the next time I comment. Considering this fact and that the award was handed down, publicly, in 2018, it is anticipated that courts in future may refer to this arbitration in support of awarding constitutional damages as appropriate relief, when the circumstances warrant. Perhaps you’ve dreamed of suing that old lady who runs the corner shop and keeps telling you how healthy you’re looking and then asks how much weight you’ve gained. Damages for breach of contract are determined on this principle: through the awarding of damages, you must be put back into the same financial position that you would have been, had the contract been properly performed. It is, however, far more difficult to prove that an act or omission that causes financial loss (without any damage to person or property) is wrongful. In addition, where injuries or loss occurs as a result of faulty or defective products, our litigation attorneys are ready to assist you in respect of: Product liability claims (within South Africa) Defective products. Direct damages have been referred to as direct loss and general damages, while consequential damages have been referred to … There is a difference between the way in which damages are determined in a case of breach of contract and in a case of a delict being committed. In this regard the Minister of Education and the Limpopo Department of Education was ordered to supply and instal toilets at each rural school currently equipped with pit latrines. The matter concerned an alleged interference by Masstores with the trade of Pick n Pay, owing to the fact that Masstores was expanding its store, offering to include the sale of perishable and non-perishable groceries and foodstuffs. Their claims for damages were based on the breaches of constitutional law rights by the government of South Africa (i.e., they were constitutional damages); however, they had already been awarded common law damages for pain and suffering. This is particularly because of that fact that the elements of a delict (as set out above) must still be satisfied when 'pure economic loss' claim is brought. You must either prove that you have a contractual claim against that person because of breach of contract on his or her part; or that you have a civil claim against that person, because of a delict being committed against you. damages, such as medical expenses and damages that are more difficult to calculate, such as pain and suffering and loss of consortium. '3 The following sections provide a cursory over- Therefore, he’s in breach.). Or better still, accidentally slipping on some fabric softener in a supermarket and ensuring yourself a very comfortable retirement on Clifton Beach. The extent of your damages will be the amount that it will cost you to have the cracks repaired.) Reaching a fair amount as compensation for general damages is not an easy task. (If your beautiful new wall starts to crack, you’ve definitely suffered damages, because someone now has to repair it and that will cost you money. COMMON LAW DAMAGES Since Congress has not specified the damages recoverable in sec-tion 1983 and Bivens litigation,"' the courts have drawn upon the com-mon law of damages to fashion remedies'2 for deprivations of constitutional rights. The arbitrator held that Section 38 of the Constitution provides that a person whose rights have been infringed or threatened may approach the Constitutional Court for an appropriate remedy, but this does not mean that a party is barred from relying on the Constitution where the breaches defy common law formulation. Consequential damages. See in general Saner Prescription. There are several types of damages you may claim in a personal injury lawsuit if you have sustained car accident injuries. II. Abduction. The current matter is of relevance owing to the fact that, while South African courts generally accept that punitive damages are not recognised under South African law, constitutional damages (which are similar to punitive damages to an extent) have been deemed to constitute appropriate relief as envisaged under the Constitution. J Scott (ed) The Law of Commerce in South Africa (2009) OUP: Cape Town. First-step analysis: mining in South Africa, Mining duties, royalties and taxes in South Africa, Compensation for loss arising from protected strikes: some thoughts on an employer’s options, A thumbnail guide to licensing in South Africa. There are, as has already been noted, three main delictual remedies: The way damages are measured depends on the type of claim. Contents include: Cases contained in the latest revision service to Volume VII of the Quantum of Damages Awards by category (spine and brain, head injuries, neck and back, upper limbs, lower limbs, hip and pelvis, face, internal organs, the senses, multiple injuries, miscellaneous injuries/conditions) The decision is relevant insofar as it pertains to the manner in which South African courts approach the cause of action known as 'damages due to interference in contractual relations'. With that being said, the arbitrator in this matter was the former Deputy Chief Justice of the Constitutional Court of South Africa. An example of a contractual claim for damages would be a case in which you hire a building contractor to make alterations to your house, but later the walls crack as a result of poor workmanship. The appeal was heard on 2 September 2019 and judgment is presently awaited. The damages you’d be entitled to would be the difference between your present financial state after the delict has been committed, and the state you would have been in had the delict not taken place. On the other hand, ‘negative interest’ is the proper measure when one determines the amount of damages you’re entitled to in the case of a delict. These types of damages are more difficult to … Questions? The judge also dismissed the Komape's family claim for emotional shock and trauma and awarded 6,000 rand to each of the Komape's siblings for medical expenses. It is up to the other party (in this case, the incompetent plumber) to prove that you could and should have reduced your loss. Common law offences still applicable within the South African legal system are defined below. Keep a step ahead of your key competitors and benchmark against them. You can recover this expense (the cost of the second plumber) along with your claim for damages against the first plumber. The way damages are measured depends on the type of claim. § That you suffered damage, as well as the exact extent of your damage. 6 Prescription Act 68 of 1969 7 Section 3(2) Prescription Act 68 of 1969; Neethling and Potgieter Law of Delict 225, 263. As a result, a mass transfer of over 1,400 mental healthcare patients took place. The focus in that publication was to survey the codified rules and common law principles underpinning the analysis and presentation of damages. Penalty clauses: Parties may also agree that a liquidated (pre-calculated) amount of damages or an agreed penalty amount may become payable in the event of a breach of contract. The matter was referred for determination to a public arbitration. Pick n Pay sought relief against Masstores under the delict of 'interference with contractual relations'. ", © Copyright 2006 - 2020 Law Business Research. For example, let’s say you had a contract with a plumber to fix a pipe in your house, and he committed a breach by not fixing it properly, and water is streaming everywhere. You must therefore prove that you and the other party, at the time of concluding the contract, had foreseen that a breach would result in this kind of damage. The claimants contended that the nature of the violations, as well as the failure of the government to provide proper sanitation facilities in rural schools, meant that an award for constitutional damages was the most appropriate way to vindicate the violation of constitutional rights. In order to succeed with your claim, you must prove one of two things. When dealing with a claim for damages, it is particularly important to note the following: Under the South African common law, an automatic remedy that stems from a breach of contract is a claim for damages against the breaching party, in the hands of an innocent party. The individuals in question were transferred to non-governmental organisations (NGOs). The court held that the punitive nature of such an award in itself would not serve to enforce any of the violated rights. Is there even such a thing as punitive damages in South African law? The High Court in this matter had previously interdicted Masstores from operating the supermarket in breach of its own lease agreement with Hyprop. However, on appeal, the majority of the Constitutional Court held otherwise. 3 Visser et al Law of Damages 488. Notify me of follow-up comments by email. This is also the position in South African law when calculating damages in the circumstances. In summary, the difference between your current financial state and the one in which you would have been had the contract been properly carried out, is the amount of damages (i.e. Some types of damages commonly issued in a breach of contract case include: Compensatory Damages. On the other hand, if someone drives like a madman and hits your car from behind, you would have a delictual claim against this person. CAUSATION How you prove causation in your cases can depend on the type of case and the type of injuries at issue. The next generation search tool for finding the right lawyer for you. General damages are a type of compensatory damages, which are granted by a court in a lawsuit to repay losses or injuries resulting from another person's wrongdoing. The circumstances under which a plaintiff may be awarded compensation under certain legislation is particular to the provisions of the specific statute that is being relied upon. A person (“wrongdoer”) who is being sued for damages caused by his/her negligence may raise a defence of contributory negligence. I find the email newsfeed useful and of good quality, and in some cases directly on point with issues of concern to the company. General damages is the broad term given to non-pecuniary loss such as pain and suffering, loss of amenities, emotional harm, etc and is awarded to a plaintiff as part of a compensatory damages to cover all those losses which are not easily quantified as opposed to percuniary damages, ie damages for harm to one's personality and physical integrity. In addition to the above automatic remedy, parties are also free to agree to terms that vary their common law rights, insofar as such variation is lawful. Punitive damages include payment for pain and suffering. A plaintiff is only entitled to the damages that he or she can prove that they have suffered. Because of the fact that these cases inevitably involve disputes of fact between the parties, they are always brought by way of action proceedings (as opposed to motion proceedings) and culminate in a trial where evidence is led. You cannot sit back, do nothing, and later claim for damage to your house. Introducing PRO ComplianceThe essential resource for in-house professionals. The ability to access the articles without cost is critical and I hope Lexology continues with the good work. The defendant must have committed an act, or an actionable omission; harm, in the form of damage or loss, to the plaintiff; because of the fault (whether intentionally or negligently) of the defendant. Dale Hutchinson and Others. In law we call this ‘positive interest’. Examples of such variations that may affect a claim for damages as a result of a breach of contract are: The following elements must be present, to successfully claim damages as a result of a delict: In circumstances where a plaintiff: (1) has no contractual relationship with a defendant; (2) has sustained no harm to their property or person; and (3) alleges that a defendant has, nonetheless, caused it financial loss, through a specific act, South African courts have held that such 'pure economic loss' claims are available in limited circumstances only. Pick n Pay sought to protect an exclusive contractual right to trade as a supermarket in a shopping centre, granted to Pick n Pay by Hyprop (the lessor and owner of the shopping centre) in a lease agreement. Some cases, by their very nature, require the use of expert testimony. The court in this case made it clear that there is no general right not to be caused pure economic loss and there is no legal duty on third parties not to infringe contractually derived exclusive rights to trade. Each of these causes of action require that certain elements must be proven. In addition, the tests applied by South African courts to ascertain whether such a cause of action exists are generally quite strict. Rather safe than sorry? This is a good example of where there is a causal link between the damages you suffered and the breach – one is a direct result of the other. (If you can, however, prove that your walls would still be standing had he used proper materials, you might still stand a chance with a damages claim.). The class action proposed was to be brought 'on behalf of the consumers for compensation and related relief' as a result of the anticompetitive conduct. Bregman Moodley Attorneys Inc. 2015/089214/21, Physical Address: Suite 314, 3rd Floor, Office Towers, Killarney Mall, 60 Riviera Road, Killarney, Johannesburg, South Africa, Directors: Roy Bregman, Sharusha Moodley, Associates: Melani Scholtz, Sasha Goldstein & Abdul Buckus. Therefore, the elements of a delict, as discussed above, will need to be proved separately once the class has been certified. The Constitution – This is the most supreme law in South Africa and enshrines the Bill of Rights which contains fundamental rights which must be respected and adhered to at all times.Contractual terms which are not in accordance with the constitution, will not be enforceable.

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