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. Perhaps youâve dreamed of suing that old lady who runs the corner shop and keeps telling you how healthy youâre looking and then asks how much weight youâve gained. 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. The matter was referred for determination to a public arbitration. On the other hand, ânegative interestâ is the proper measure when one determines the amount of damages youâre entitled to in the case of a delict. 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. This had not been done in the past. 8 Visser et al Law of Damages 137; Evins v Shield Insurance Co Ltd 1980 2 SA 814 (A Abduction. 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. 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. Understand your clients’ strategies and the most pressing issues they are facing. As a result, the arbitrator awarded constitutional damages over and above the amount already awarded for emotional shock and trauma under the common law. See in general Saner Prescription. 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 Baker v Probert  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). damages, such as medical expenses and damages that are more difficult to calculate, such as pain and suffering and loss of consortium. "I am a regular reader of Lexology, as are a few of my colleagues. Hereâs how it works. II. 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 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. 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). 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. Therefore, heâs in breach.). Consequential damages. Dale Hutchinson and Others. whether, given the composition of the class and the nature of the proposed action, a class action is the most appropriate means of determining the claims of the class members. As a result, a mass transfer of over 1,400 mental healthcare patients took place. Examples of 'pure economic loss' claims that have been held to be actionable include the claim of 'interference in contractual relations' and 'negligent misstatements'. The ability to access the articles without cost is critical and I hope Lexology continues with the good work. The majority of these organisations operated with invalid licences and lacked the experience and capacity to care for these patients. It has a significant effect on the supply of goods and services. Â§Â That you suffered damage, as well as the exact extent of your damage. 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'. Chapter 13 remedies - Summary The Law of Contract in South Africa. concerning the law of contract in the South African courts. As a result, 1,418 mental healthcare users were exposed to trauma and morbidity, while 144 patients died. 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 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'. 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. 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. Second, damages caps are limits on the amount of damages you can recover. Common law offences still applicable within the South African legal system are defined below. 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. A summary of containing the remedies for cancellation and the decision to uphold the above... View more. 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. A plaintiff is only entitled to the damages that he or she can prove that they have suffered. 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. A quote from a builder for repairing the cracks will prove the extent. '3 The following sections provide a cursory over- It is therefore a usual consequence of this type of breach. "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." 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. 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. It confirmed that the degree or intensity of fault may indeed play an important role in the wrongfulness inquiry in these kinds of claims. There are several types of damages you may claim in a personal injury lawsuit if you have sustained car accident injuries. 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. 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 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. It is up to the other party (in this case, the incompetent plumber) to prove that you could and should have reduced your loss. 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. 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. The current matter is of relevance owing to the fact that, while South African courts generally accept that punitive damages are not recognised under … CAUSATION How you prove causation in your cases can depend on the type of case and the type of injuries at issue. 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. The extent of your damages will be the amount that it will cost you to have the cracks repaired.) 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. 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 way damages are measured depends on the type of claim. This matter has since been appealed to the Supreme Court of Appeal. ", © Copyright 2006 - 2020 Law Business Research. Under the South African law of contract, a claim for damages may also be coupled with a claim for specific performance of the contract. 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. Rather safe than sorry? 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 youâre concerned with would be compensated. In other words, if the damages you suffered would have been fewer if youâd acted like a reasonable person and tried to reduce them, you canât claim the entire loss. 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. If your claim involves noneconomic damages, you should know there are some limitations in South Carolina. Â§Â That the damage youâve suffered is a usual consequence of this type of breach. 6 Prescription Act 68 of 1969 7 Section 3(2) Prescription Act 68 of 1969; Neethling and Potgieter Law of Delict 225, 263. 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. It is not possible to claim damages for loss you could have avoided, had you taken the steps a âreasonable personâ in your position would have taken to mitigate (reduce) the damages. Nelson Mandela University. You can recover this expense (the cost of the second plumber) along with your claim for damages against the first plumber. 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. Poor workmanship usually results in a financial loss when someone else must then repair the defect. In order to succeed with your claim, you must prove one of two things. It is important to note that a class action does not constitute a separate cause of action. Pick n Pay sought relief against Masstores under the delict of 'interference with contractual relations'. Basic Definition of Damages In more recent years, the original concept of damages has been expanded to include punitive damages, to punish the wrongdoer. It may reject repudiation and continue with any remaining performance obligations of its own. 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. Keep a step ahead of your key competitors and benchmark against them. 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 … I find the email newsfeed useful and of good quality, and in some cases directly on point with issues of concern to the company. 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. Notify me of follow-up comments by email. With that being said, the arbitrator in this matter was the former Deputy Chief Justice of the Constitutional Court of South Africa. 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. 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. The diverse terminology used by legal professionals has only served to exacerbate the uncertainty. 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. There has been some confusion within the South African legal profession in relation to the concepts of direct and consequential damages. For example, letâs 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. Become your target audience’s go-to resource for today’s hottest topics. The court, instead, decided on an award of a 'structural interdict'. The High Court in this matter had previously interdicted Masstores from operating the supermarket in breach of its own lease agreement with Hyprop. The Esidimeni Care Centre was an establishment that housed mental healthcare patients. constitutional damages may be awarded to a plaintiff by a court, as compensation where a breach of a person's constitutional right occurs. The next generation search tool for finding the right lawyer for you. Limitations on Pain and Suffering Damages in South Carolina. J Scott (ed) The Law of Commerce in South Africa (2009) OUP: Cape Town. You cannot sit back, do nothing, and later claim for damage to your house. 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) Some types of damages commonly issued in a breach of contract case include: Compensatory Damages. 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. 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 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. (Louis F van Huyssteem Contract law in South Africa (Netherlands: Kluwer Law International BV 2010) at 76 – 79). 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. If someone elseâs action or failure to act causes you to suffer damage, loss, or injury, you may claim compensation from that person. First, "statute of limitations" refers to a time limit for filing a lawsuit. 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 The damages youâd 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. A person (“wrongdoer”) who is being sued for damages caused by his/her negligence may raise a defence of contributory negligence. 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. Compensatory damages are the most common remedy in cases of breach of contract. 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