money) that you are entitled to. First, "statute of limitations" refers to a time limit for filing a lawsuit. The individuals in question were transferred to non-governmental organisations (NGOs). The state was unable to confirm the whereabouts of another 44 patients. This is also the position in South African law when calculating damages in the circumstances. 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. Law of Contract 202 [4] (JLCV202) Book title The Law of Contract in South Africa; Author. As a result, the arbitrator awarded constitutional damages over and above the amount already awarded for emotional shock and trauma under the common law. Direct damages have been referred to as direct loss and general damages, while consequential damages have been referred to … 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. 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. I find the email newsfeed useful and of good quality, and in some cases directly on point with issues of concern to the company. This had not been done in the past. The court, instead, decided on an award of a 'structural interdict'. The Supreme Court of Appeal provided elements to guide a court in determining a certification application, which are as follows: Since class actions in South Africa are not regulated by statute, as such, this decision is vital in that it provides a common law mechanism by which groups of individuals can bring class action proceedings. 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) Introducing PRO ComplianceThe essential resource for in-house professionals. It is not possible to claim damages for loss you could have avoided, had you taken the steps a ‘reasonable person’ in your position would have taken to mitigate (reduce) the damages. Pick n Pay sought relief against Masstores under the delict of 'interference with contractual relations'. 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. Govindjee et al Commercial Law 2: Fresh Perspectives (2007) Pearson: South Africa. 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. 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. The Supreme Court of Appeal held that when it comes to defining the 'class' in the class action, it is not necessary to identify the individual members of the class, 'but that the class must be defined with sufficient precision that a particular individual's membership can be objectively determined by examining their situation in the light of the class definition'. Become your target audience’s go-to resource for today’s hottest topics. 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. Usually this type of remedy is intended to compensate the non-breaching party for losses suffered as the result of a contract breach. Or better still, accidentally slipping on some fabric softener in a supermarket and ensuring yourself a very comfortable retirement on Clifton Beach. 3 Visser et al Law of Damages 488. A claim for damages may be instituted by a plaintiff: (1) in the event of a breach of contract; (2) in the event that the defendant has committed a delict (tort) against the plaintiff; or (3) where there has been a breach of a statute that provides for an award of damages or compensation in the event of such a breach. 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. It confirmed that the degree or intensity of fault may indeed play an important role in the wrongfulness inquiry in these kinds of claims. Govindjee et al Commercial Law I: Fresh Perspectives (2006) Pearson: South Africa. As a result, a mass transfer of over 1,400 mental healthcare patients took place. See in general Saner Prescription. 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. '3 The following sections provide a cursory over- However, this does not mean that unlawful competition cases are not actionable in South Africa. However, on appeal, the majority of the Constitutional Court held otherwise. If someone else’s action or failure to act causes you to suffer damage, loss, or injury, you may claim compensation from that person. 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'. 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'. Second, damages caps are limits on the amount of damages you can recover. The extent of your damages will be the amount that it will cost you to have the cracks repaired.) 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 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. Power up your legal research with modern workflow tools, AI conceptual search and premium content sets that leverage Lexology's archive of 900,000+ articles contributed by the world's leading law firms. Course. 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 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. 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. Here’s how it works. However, owing to the fact that the proceedings were not formal court proceedings, the award has not set a binding precedent. The focus in that publication was to survey the codified rules and common law principles underpinning the analysis and presentation of damages. The way damages are measured depends on the type of claim. A party faced with an unjustified refusal to perform the contract has an election whether to accept the repudiation or not. 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. 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 can recover this expense (the cost of the second plumber) along with your claim for damages against the first plumber. 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. concerning the law of contract in the South African courts. 5 See para 2.1 below. Damages arising out of natural and probable consequences of breach of contract are also considered an ordinary damage. ", © Copyright 2006 - 2020 Law Business Research. 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. "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 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. 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. 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. The reality is that it’s a little harder to get something for nothing than you may think. If the walls of the house start to crack a month later as a result of the cheap materials he used, you will be able to claim damages from him. Limitations on Pain and Suffering Damages in South Carolina. It is important to note that a class action does not constitute a separate cause of action. A quote from a builder for repairing the cracks will prove the extent. LPL4802 Law of Damages Study Notes 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. It is up to the other party (in this case, the incompetent plumber) to prove that you could and should have reduced your loss. The government argued that once someone has been compensated under the common law, they may not rely on the Constitution to obtain additional compensation. 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 diverse terminology used by legal professionals has only served to exacerbate the uncertainty. 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. However, should the walls of your house crack after an earthquake hits your town, it is very unlikely that you will be able to claim damages from the builder, as your damage was caused by the earthquake and not by the builder’s breach of contract. Reaching a fair amount as compensation for general damages is not an easy task. 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. In this case, the claimants alleged that there had been severe infringements of the constitutional rights of the deceased patients, the survivors and the families of the patients. 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. Claims for medical expenses are chief among these, but you may also claim damages for lost wages or diminished employment opportunities, pain and suffering, or loss of affection (also called "loss of consortium"). (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.). Examples of general damages will include the loss of interest resulting from a failure to pay a sum of money; damages that result from the use of a product for its normal purpose; and regulatory fines imposed in the event of the breach of a … Examples include the following: In September 2015, the Gauteng Health Department decided to terminate a long-standing contract with the Life Esidimeni Care Centre. In such an instance, South African courts have recognised that the loss may lie in the infringement of a right to goodwill or in the legal duty. Compensatory damages are the most common remedy in cases of breach of contract. You are therefore allowed to claim any expenses from the wrongdoer that you incur in taking reasonable steps to minimise your damage. 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. 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. 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. 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. Therefore, the elements of a delict, as discussed above, will need to be proved separately once the class has been certified. 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 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. 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. CAUSATION How you prove causation in your cases can depend on the type of case and the type of injuries at issue. In order to succeed with your claim, you must prove one of two things. (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. The High Court in this matter had previously interdicted Masstores from operating the supermarket in breach of its own lease agreement with Hyprop. 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. The Esidimeni Care Centre was an establishment that housed mental healthcare patients. Damages that arise in the ordinary course of events from the breach of contract are called ordinary damages. 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. 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. In addition, the Constitutional Court held that there is no legal duty on third parties not to infringe contractually derived exclusive rights to trade, because exclusive trading rights make the competitive field uneven. 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. To give an example: If you and your building contractor agree on a certain expensive, durable building material to be used, but he uses a cheap alternative (without your knowledge or permission) instead, he is in breach of the contract. Section 38 of the Constitution of the Republic of South Africa 1996 provides that a court is empowered to award 'appropriate relief' where a right in the Bill of Rights has been violated. 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. South African law does not allow a plaintiff to claim punitive damages from a defendant in a private claim, as this is seen as being contrary to public policy. The aim is to “make the injured party whole again”.Speaking about a tort action, the Supreme Court of Canada has stated: “The general principles underlying our system of damages suggest that a plaintiff should receive full and fair compensation, calculated to place him or her in the same po… Basic Definition of Damages In more recent years, the original concept of damages has been expanded to include punitive damages, to punish the wrongdoer. 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. South African courts have accepted that this relief may include a form of compensatory damages known as 'constitutional damages'. Practice Area (s): Shipping & Logistics. 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. 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 Limitation clauses: Parties may agree that any claim for damages, because of a breach of contract, is limited to a specific amount (such as the amount of the contract price). II. 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. Under the South African law of contract, a claim for damages may also be coupled with a claim for specific performance of the contract. Each of these causes of action require that certain elements must be proven. Punitive damages include payment for pain and suffering. It may reject repudiation and continue with any remaining performance obligations of its own. 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. 6 Prescription Act 68 of 1969 7 Section 3(2) Prescription Act 68 of 1969; Neethling and Potgieter Law of Delict 225, 263. 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. Keep a step ahead of your key competitors and benchmark against them. Therefore, he’s in breach.). The ability to access the articles without cost is critical and I hope Lexology continues with the good work. Examples of 'pure economic loss' claims that have been held to be actionable include the claim of 'interference in contractual relations' and 'negligent misstatements'. In law we call this ‘positive interest’. It has a significant effect on the supply of goods and services. You cannot sit back, do nothing, and later claim for damage to your house. Copyright © 2020 Bregman Moodley Attorneys | Designed By, Specialist Divorce Lawyers In Johannesburg, Estate agents liable to buyer for defects in property. The Global Damages Review - Edition 3, In the inaugural edition of this publication, we addressed various rules that set boundaries on what is permissible damages evidence. Why list these supposed different types of liability at all, if all damages regardless of the cause of action are excluded? D Collier-Reed and K Lehmann (ed) Basic Principles of Business Law (2006) LexisNexis: South Africa. Michael Komape, a five-year-old child, drowned in a pit toilet on his school's premises in 2014. If you would like to learn how Lexology can drive your content marketing strategy forward, please email enquiries@lexology.com. Under South African law, the aim of a claim for damages is to compensate for the loss suffered and not to enrich a party. Some types of damages commonly issued in a breach of contract case include: Compensatory Damages. 2.3.1 The common law position 7 2.3.2 The introduction and object of the Act 8 2.3.3 The influence of the Constitution of South Africa and the Bill of Rights 9 2.4 Development, problems and future of the Act in South African law of Damages 9 If damage of this sort is not a usual result of the breach committed, you must also be able to prove that you had an agreement that the damages that you’re concerned with would be compensated. damages, such as medical expenses and damages that are more difficult to calculate, such as pain and suffering and loss of consortium. § That the damage you’ve suffered is a usual consequence of this type of breach. 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. Civil procedure in South Africa is the formal rules and standards that courts follow in that country when adjudicating civil suits (as opposed to procedures in criminal law matters). Save my name, email, and website in this browser for the next time I comment. Notify me of follow-up comments by email. 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. If your claim involves noneconomic damages, you should know there are some limitations in South Carolina. It is therefore a usual consequence of this type of breach. The matter was referred for determination to a public arbitration. 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. There are, as has already been noted, three main delictual remedies: § That you suffered damage, as well as the exact extent of your damage. 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). There must thus be a causal link between the breach and the damage, in that the damage has actually been caused by the breach. (You hired the building contractor to build walls without any cracks in it. A summary of containing the remedies for cancellation and the decision to uphold the above... View more. A plaintiff is only entitled to the damages that he or she can prove that they have suffered. The next generation search tool for finding the right lawyer for you. 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. There has been some confusion within the South African legal profession in relation to the concepts of direct and consequential damages. 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. General damages are such damages, which the law presumes from the breach of the contract.Generally they are awarded to compensate the affected party and its intentions was not to punish. 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. University. The measure for damages applied in this case covers actual loss, probable future loss, as well as compensation for pain and suffering. 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. Abduction consists in unlawfully taking a minor out of the control of his or her custodian with the intention of enabling someone to marry or have sexual intercourse with that minor. 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. 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. 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. 8 Visser et al Law of Damages 137; Evins v Shield Insurance Co Ltd 1980 2 SA 814 (A Further, foreign members of a class will be bound to the proceedings if they are regarded as members of the class in accordance with South African law. Home » BLOG » Litigation Articles » Damages Claims. 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. The legal realm is divided broadly into substantive and procedural law. "I am a regular reader of Lexology, as are a few of my colleagues. With that being said, the arbitrator in this matter was the former Deputy Chief Justice of the Constitutional Court of South Africa. Chapter 13 remedies - Summary The Law of Contract in South Africa. § That you suffered damages as a direct result of the breach of contract. 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. 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. 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. You will then have a contractual claim for the amount of damages that you’ve suffered – the amount that it will cost to repair the walls. These types of damages are more difficult to … It is important to stay current with legal developments, and the articles are a great aid toward this goal. Nelson Mandela University. 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. There are several types of damages you may claim in a personal injury lawsuit if you have sustained car accident injuries. Limitations (or exclusions) of liability can be based on: the nature of the liability (taking into account whether it is contractual, delictual or strict liability, that is liability imposed by legislation); the type of damages suffered; or an agreed monetary limit. Common law offences still applicable within the South African legal system are defined below. In most agreements you will find clauses that try to limit, or even exclude, the liability of a party to that agreement. As a result, 1,418 mental healthcare users were exposed to trauma and morbidity, while 144 patients died. In addition, the tests applied by South African courts to ascertain whether such a cause of action exists are generally quite strict. The court held that the punitive nature of such an award in itself would not serve to enforce any of the violated rights. No. (Louis F van Huyssteem Contract law in South Africa (Netherlands: Kluwer Law International BV 2010) at 76 – 79). 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