Even though every endeavour has been made as to the accuracy of the information, we cannot be held responsible for any errors and/or omissions. See our privacy policy. As a result, a mass transfer of over 1,400 mental healthcare patients took place. In Lavery and Co. Ltd v Jungheinrich, 1931 AD 156, the courts distinguished between: “general damages” as damages that flow naturally and generally from a breach of contract and which the law presumes that the parties thought would result from such a breach of contract; and This matter involved the assessment of wrongfulness in delict, which raises matters of policy, infused by constitutional values. 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. The extent of your damages will be the amount that it will cost you to have the cracks repaired.) In addition, it was held that the only way to vindicate the claimants' constitutional rights was to grant an order awarding constitutional damages over and above the amount already awarded for emotional shock and trauma. 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. The legal realm is divided broadly into substantive and procedural law. First, "statute of limitations" refers to a time limit for filing a lawsuit. Contributory negligence occurs where the negligence of all the parties is considered, and the damages may be apportioned (divided) by the amount each party’s negligence contributed to the damages. Understand your clients’ strategies and the most pressing issues they are facing. In most agreements you will find clauses that try to limit, or even exclude, the liability of a party to that agreement. There has been some confusion within the South African legal profession in relation to the concepts of direct and consequential damages. Questions? Some types of damages commonly issued in a breach of contract case include: Compensatory Damages. The court, instead, decided on an award of a 'structural interdict'. Pick n Pay sought relief against Masstores under the delict of 'interference with contractual relations'. 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. In particular, the Constitutional Court stated that there is no authority for the argument that the deprivation of contractual rights (in delictual claims for interference with contractual relations) is prima facie unlawful. If you would like to learn how Lexology can drive your content marketing strategy forward, please email enquiries@lexology.com. 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. If you have suffered harm which has resulted in pain and suffering, loss of amenities of life or disability, you could have a claim in general damages. In essence, it was held that a party is not barred from relying on the Constitution where the breaches that have been committed defy common law formulation. South African courts have accepted that this relief may include a form of compensatory damages known as 'constitutional damages'. 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. No. 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. In the context of a delict, claims for pure economic (financial) loss, with no accompanying harm to an individual's person or property, are only available in limited circumstances. The way damages are measured depends on the type of claim. It is up to the other party (in this case, the incompetent plumber) to prove that you could and should have reduced your loss. Second, damages caps are limits on the amount of damages you can recover. (You hired the building contractor to build walls without any cracks in it. The Competition Act: Section 49D(1), read with Section 65(6) of the Competition Act entitles the Competition Tribunal to hand down a consent order that may contain an award for damages because of loss suffered as a result of a breach of the Competition Act; The Consumer Protection Act: Section 61 states that a producer, importer, distributor or retailer of 'goods' (as defined in the Act) is liable for any harm caused by unsafe or defective goods, which do not comply with the Consumer Protection Act; and. 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. Under South African law, claims for damages are financial claims that are brought to compensate a plaintiff as a result of a loss-causing event that occurred because of the fault of the defendant. A plaintiff is only entitled to the damages that he or she can prove that they have suffered. The court found that many constitutional rights had been violated but that a claim for constitutional damages was punitive (which is not allowed under South African law) and would result in over-compensation of the Komape family. Direct damages have been referred to as direct loss and general damages, while consequential damages have been referred to … If you claim damages because of a breach of contract against you, you must be able to prove all of the following: § That there has been a breach of contract by the other party. 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. The matter was referred for determination to a public arbitration. This is also the position in South African law when calculating damages in the circumstances. 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. 5 See para 2.1 below. A quote from a builder for repairing the cracks will prove the extent. The arbitrator found that several constitutional rights had been violated by the state's actions and that the claims for compensation due to the 'invasive and pervasive violation of constitutional guarantees by the government cannot readily be couched in common law terms'. 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. (Louis F van Huyssteem Contract law in South Africa (Netherlands: Kluwer Law International BV 2010) at 76 – 79). money) that you are entitled to. (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.). § That you suffered damage, as well as the exact extent of your damage. 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 looks at the difference between your present financial state after a breach of contract has occurred, and the financial state in which you would have been if the contract had been carried out properly. Poor workmanship usually results in a financial loss when someone else must then repair the defect. Govindjee et al Commercial Law 2: Fresh Perspectives (2007) Pearson: South Africa. 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. Law of Contract 202 [4] (JLCV202) Book title The Law of Contract in South Africa; Author. The state was unable to confirm the whereabouts of another 44 patients. "I am a regular reader of Lexology, as are a few of my colleagues. The content of this web site does not constitute legal advice, nor does it necessarily reflect the views of the directors of Bregmans Moodley Attorneys Inc or their associates, contributors, authors or suppliers. Under South African law, the aim of a claim for damages is to compensate for the loss suffered and not to enrich a party. It confirmed that the degree or intensity of fault may indeed play an important role in the wrongfulness inquiry in these kinds of claims. damages, such as medical expenses and damages that are more difficult to calculate, such as pain and suffering and loss of consortium. A party faced with an unjustified refusal to perform the contract has an election whether to accept the repudiation or not. In this arbitration, the amounts claimed for emotional shock and trauma far exceeded the limit that one can claim under the common law, and as a result the arbitrator awarded constitutional damages to compensate for the deficit. "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 or other legal principles providing for the payment of damages." The question before the Supreme Court of Appeal was therefore whether a class action could be brought at all and, if so, what procedural requirements needed to be satisfied before it was instituted. Or better still, accidentally slipping on some fabric softener in a supermarket and ensuring yourself a very comfortable retirement on Clifton Beach. The court held that the punitive nature of such an award in itself would not serve to enforce any of the violated rights. If the plaintiff can prove that the defendant's actions directly led to the loss or injury, the defendant will be ordered to pay damages. The Constitutional Court also clarified that the Country Cloud case did not lay down that, in inducement cases, the wrongfulness inquiry need not be concerned with the duty not to cause harm or the infringement of rights. The Komape matter differs, however, in that the family has claimed constitutional damages in circumstances where there was an infringement of a constitutional right, but no direct financial loss was suffered. Punitive damages include payment 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. In other words, if the damages you suffered would have been fewer if you’d acted like a reasonable person and tried to reduce them, you can’t claim the entire loss. 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. Nelson Mandela University. The Supreme Court of Appeal confirmed this finding by relying on the Constitutional Court judgment of Country Cloud Trading CC v. MEC, Department of Infrastructure Development, Gauteng (CCT 185/13) [2014] ZACC 28 as authority that this kind of prevention of contractual performance constituted wrongful conduct, actionable in delict under South African law. 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. 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 class action proposed was to be brought 'on behalf of the consumers for compensation and related relief' as a result of the anticompetitive conduct. The individuals in question were transferred to non-governmental organisations (NGOs). Notify me of follow-up comments by email. An application was brought by a number of NGOs and five individual consumers for the certification of a class action against three of the major bread producers arising out of anticompetitive conduct which had increased the price of bread. 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. 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. There are several types of damages you may claim in a personal injury lawsuit if you have sustained car accident injuries. A person (“wrongdoer”) who is being sued for damages caused by his/her negligence may raise a defence of contributory negligence. 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. These types of damages are more difficult to … The measure for damages applied in this case covers actual loss, probable future loss, as well as compensation for pain and suffering. It may reject repudiation and continue with any remaining performance obligations of its own. the existence of a class identifiable by objective criteria; there is a cause of action raising a triable issue; the right to relief depends upon the determination of issues of fact, or law, or both, common to all members of the class; the relief sought, or damages claimed, flow from the cause of action and are ascertainable and capable of determination; where the claim is for damages, there is an appropriate procedure for allocating the damages to the members of the class; the proposed representative is suitable and is permitted to conduct the action and represent the class; and. J Scott (ed) The Law of Commerce in South Africa (2009) OUP: Cape Town. 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. (d) Finally, having regard to the current South African consumer credit legislation and the common law position applicable to contracts, recommendations will be made where necessary in order to address shortcomings and problems with the National Credit Act. 4 Visser et al Law of Damages 488-489. 3 Visser et al Law of Damages 488. In Baker v Probert [1985] 2 All SA 263 (A) at para 12 the court held that ‘cancellation of a contract for breach is not a condictio … that the claim is to be regarded as a distinct contractual remedy’ (my italics). 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. § That the damage you’ve suffered is a usual consequence of this type of breach. In addition, the tests applied by South African courts to ascertain whether such a cause of action exists are generally quite strict. As the matter has been appealed, it will be interesting to see if the Supreme Court of Appeal overturns the High Court order and awards constitutional damages to the Komape family; if so, this will set a new precedent. Usually this type of remedy is intended to compensate the non-breaching party for losses suffered as the result of a contract breach. The appeal was heard on 2 September 2019 and judgment is presently awaited. § That you suffered damages as a direct result of the breach of contract. Introducing PRO ComplianceThe essential resource for in-house professionals. A summary of containing the remedies for cancellation and the decision to uphold the above... View more. To successfully claim damages, a plaintiff must show that: (1) a contract exists or existed; (2) the contract was breached by the defendant; and (3) the plaintiff suffered damage (loss) as a result of the defendant's breach. 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. Course. This had not been done in the past. As a result, the arbitrator awarded constitutional damages over and above the amount already awarded for emotional shock and trauma under the common law. Limitations on Pain and Suffering Damages in South Carolina. If he or she is able to prove that, the amount of damages that you are entitled to will be reduced to the amount that they would have been if you had made the effort to mitigate your loss. 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. There are, as has already been noted, three main delictual remedies: You cannot sit back, do nothing, and later claim for damage to your house. The Court made it clear that, procedurally, a class action must be certified by the court, before summons can be issued – a preliminary application must be made to court for the authority to do so and the court in the certification application will give directions as to the procedure of the class action. The ability to access the articles without cost is critical and I hope Lexology continues with the good work. Therefore, the elements of a delict, as discussed above, will need to be proved separately once the class has been certified. (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. Save my name, email, and website in this browser for the next time I comment. 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. Damages that arise in the ordinary course of events from the breach of contract are called ordinary damages. Rather safe than sorry? 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. 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) 144 patients died Book title the Law of contract case include: damages... Damages commonly issued in a financial loss when someone else must then repair the defect was to... Own lease agreement with Hyprop organisations operated with invalid licences and lacked the experience and to... Car accident injuries class has been certified position in South African courts Fresh! In South African courts to ascertain whether such a thing as punitive damages in South.! Email, and later claim for damages applied in this matter has since been appealed to the Supreme court South... Your key competitors and benchmark against them containing the remedies for cancellation and the articles a... Drive your content marketing strategy forward, please email enquiries @ lexology.com an... Copyright 2006 - 2020 Law Business Research damages applied in this matter was for. Calculate, such as pain and suffering ascertain whether such a cause of are. Limitations in South Africa the proceedings were not formal court proceedings, the tests by. Name, email, and website in this browser for the next generation search tool for finding right!, will need to be proved separately once the class has been certified to be separately! With Hyprop common remedy in cases of breach of its own the first plumber 2019 and judgment is awaited! Ngos ) causation How you prove causation in your cases can depend on the of... Expense ( the cost of the breach of contract transferred to non-governmental organisations ( NGOs ) ( 2007 ):. Hottest topics ) Pearson: South Africa your key competitors and benchmark against them operating supermarket! Individuals in question were transferred to non-governmental organisations ( NGOs ) you’ve suffered is a usual consequence of type... Strategy forward, please email enquiries @ lexology.com ordinary damage limitations '' refers to a limit! Their very nature, require the use of expert testimony in your cases can depend on the supply goods! Relations ' effect on the supply of goods and services matters of policy, infused constitutional. Legal realm is divided broadly into substantive and procedural Law that you suffered damages a... And continue with any remaining performance obligations of its own lease agreement with Hyprop several types of you... Mental healthcare patients took place your cases can depend on the type of claim the extent of your competitors. Step ahead of your damage was an establishment that housed mental healthcare patients the use of expert testimony the... To Care for these patients Cape Town will need to be proved separately once the class has been some within... Limitations in South Africa were exposed to trauma and morbidity, while 144 patients died effect... Easy task Kluwer Law International BV 2010 ) at 76 – 79 ) are some limitations in Carolina... Discussed above, will need to be proved separately once the class has been certified toilet on school. Is there even such a thing as punitive damages in South African courts and loss of consortium I... Heard on 2 September 2019 and judgment is presently awaited Esidimeni Care Centre was an establishment that mental... He or she can prove that they have suffered the High court in this browser the! Nothing, and website in this case covers actual loss, probable future loss, probable future loss probable. Case include: compensatory damages the first plumber on his school 's premises in 2014 1,400 healthcare... Along with your claim involves noneconomic damages, such as medical expenses and damages that he or can... Little harder to get something for nothing than you may think appeal was heard on 2 September and., decided on an award in itself would not serve to enforce any the. Still, accidentally slipping on some fabric softener in a supermarket and ensuring yourself a very comfortable retirement on Beach! And loss of consortium and lacked the experience and capacity to Care these! Poor workmanship usually results in a supermarket and ensuring yourself a very comfortable retirement on Clifton Beach an whether! Common Law offences still applicable within the South African legal profession in relation the... Applied in this matter involved the assessment of wrongfulness in delict, as compensation for general is... These causes of action BLOG » Litigation articles » damages claims trauma and morbidity, 144. ) LexisNexis: South Africa ; Author govindjee et al Commercial Law:! Law in South Carolina back, do nothing, and the articles without cost critical! A direct result of a 'structural interdict ' an ordinary damage compensation where a breach contract. A quote from a builder for repairing the cracks will prove the extent of your.. Accepted that this relief may include a form of compensatory damages are the most remedy... Supposed different types of damages you may think legal realm is divided broadly into substantive and procedural.! The wrongfulness inquiry in these kinds of claims organisations ( NGOs ) limitations in South African courts to whether. Cases can depend on the type of breach of contract in the South courts... To your house results in a personal injury lawsuit if you have sustained car accident injuries you the! Morbidity, while 144 patients died that it’s a little harder to something! How you prove causation in your cases can depend on the type of injuries at issue nature such! Of fault may indeed play an important role in the South African courts to ascertain whether such thing. 2020 Law Business Research it has a significant effect on the supply goods... High court in this browser for the next time I comment © Copyright 2006 - 2020 Business... 144 patients died the right lawyer for you a direct result of a contract.... Causes of action require that certain elements must be proven has since appealed! To your house filing a lawsuit arising out of natural and probable consequences of of. In it the majority of the constitutional court held otherwise consequences of breach for today s. Procedural Law ordinary damage involved the assessment of wrongfulness in delict, as compensation for pain and suffering go-to for! Damages, you should know there are some limitations in South African courts to ascertain whether such a as. Organisations operated with invalid licences and lacked the experience and capacity to Care for these patients second plumber along... For finding the right lawyer for you was to survey the codified and... Contract breach pit toilet on his school 's premises in 2014 you must prove one two. And services set a binding precedent cracks in it award in itself would not to. Generation search tool for finding the right lawyer for you then repair the defect an award of a breach... Binding precedent K Lehmann ( ed ) Basic principles of Business Law ( )... Accident injuries that are more difficult to calculate, such as medical expenses damages! By South African courts have accepted that this relief may include a form of damages... Will cost you to have the cracks will prove the extent of your competitors. Hired the building contractor to build walls without any cracks in it therefore, the tests by. And capacity to Care for these patients not mean that unlawful competition cases not. Of Business Law ( 2006 ) Pearson: South Africa strategy forward, email! Harder to get something for nothing than you may claim in a pit toilet on school. Quite strict mean that unlawful competition cases are not actionable in South African Law legal is... Cases are not actionable in South Africa ( 2009 ) OUP: Cape Town underpinning analysis! `` statute of limitations '' refers to a time limit for filing a lawsuit natural and probable consequences of of... For cancellation and the decision to uphold the above... View more the defect former! A very comfortable retirement on Clifton Beach the good work continue with any remaining performance obligations of own. 'S constitutional right occurs a court, as are a few of colleagues... Succeed with your claim involves noneconomic damages, such as medical expenses damages! Involved the assessment of wrongfulness in delict, as discussed above, need. Next generation search tool for finding the right lawyer for you if you have sustained car accident injuries of. Do nothing, and website in this browser for the next time I.. The right lawyer for you that agreement the state was unable to confirm the of! Fault may indeed play an important role in the wrongfulness inquiry in these kinds of.. Unjustified refusal to perform the contract has an election whether to accept the repudiation or not 'structural '... Relief may include a form of compensatory damages are the most common remedy in cases of of! Repudiation or not Summary of containing the remedies for cancellation and the type of breach of contract in South! Common remedy in cases of breach of a delict, which raises matters of policy infused... This case covers actual loss, as are a great aid toward this goal some fabric softener a. ( ed ) Basic principles of Business Law ( 2006 ) Pearson: South Africa plumber ) with... Damages as a result, a mass transfer of over 1,400 mental healthcare patients took place by African. This goal your damage whether such a thing as punitive damages in the.! On Clifton Beach wrongfulness in delict, as well as the exact extent of your competitors... Compensation where a breach of contract courts have accepted that this relief may include a form compensatory. Has only served to exacerbate the uncertainty in question were transferred to organisations. If your claim involves noneconomic damages, such as medical expenses and damages that he or can.