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. 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 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. 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. Direct damages have been referred to as direct loss and general damages, while consequential damages have been referred to … First, "statute of limitations" refers to a time limit for filing a lawsuit. A party faced with an unjustified refusal to perform the contract has an election whether to accept the repudiation or not. 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. § That you suffered damage, as well as the exact extent of your damage. 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. 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. Rather safe than sorry? This matter has since been appealed to the Supreme Court of Appeal. Pick n Pay sought relief against Masstores under the delict of 'interference with contractual relations'. Constitutional damages have previously been awarded in South Africa, for example in the case of President of the Republic of South Africa and Another v. Modderklip Boerdery (Pty) Ltd 2005 (5) SA 3 (CC), where the court awarded damages to the owners of land due to an infringement of their constitutional right to property in circumstances where unlawful occupiers had refused to vacate the premises. 6 Prescription Act 68 of 1969 7 Section 3(2) Prescription Act 68 of 1969; Neethling and Potgieter Law of Delict 225, 263. 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. Usually this type of remedy is intended to compensate the non-breaching party for losses suffered as the result of a contract breach. 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. 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. 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. 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… 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. A summary of containing the remedies for cancellation and the decision to uphold the above... View more. 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. 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. § That the damage you’ve suffered is a usual consequence of this type of breach. 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. This matter involved the assessment of wrongfulness in delict, which raises matters of policy, infused by constitutional values. 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. 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. Govindjee et al Commercial Law I: Fresh Perspectives (2006) Pearson: South Africa. 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). The court, instead, decided on an award of a 'structural interdict'. 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. 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. The court held that the punitive nature of such an award in itself would not serve to enforce any of the violated rights. "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." Therefore, the elements of a delict, as discussed above, will need to be proved separately once the class has been certified. Introducing PRO ComplianceThe essential resource for in-house professionals. The way damages are measured depends on the type of claim. There must thus be a causal link between the breach and the damage, in that the damage has actually been caused by the breach. 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. 4 Visser et al Law of Damages 488-489. The government argued that once someone has been compensated under the common law, they may not rely on the Constitution to obtain additional compensation. Basic Definition of Damages In more recent years, the original concept of damages has been expanded to include punitive damages, to punish the wrongdoer. 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. 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. Therefore, he’s in breach.). Become your target audience’s go-to resource for today’s hottest topics. 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). The measure for damages applied in this case covers actual loss, probable future loss, as well as compensation for pain and suffering. Understand your clients’ strategies and the most pressing issues they are facing. 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. 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. Reaching a fair amount as compensation for general damages is not an easy task. 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. 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. The focus in that publication was to survey the codified rules and common law principles underpinning the analysis and presentation of damages. 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. D Collier-Reed and K Lehmann (ed) Basic Principles of Business Law (2006) LexisNexis: South Africa. 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. The matter was referred for determination to a public arbitration. The extent of your damages will be the amount that it will cost you to have the cracks repaired.) Nelson Mandela University. 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. You are therefore allowed to claim any expenses from the wrongdoer that you incur in taking reasonable steps to minimise your damage. "I am a regular reader of Lexology, as are a few of my colleagues. 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. CAUSATION How you prove causation in your cases can depend on the type of case and the type of injuries at issue. There are several types of damages you may claim in a personal injury lawsuit if you have sustained car accident injuries. J Scott (ed) The Law of Commerce in South Africa (2009) OUP: Cape Town. money) that you are entitled to. 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. 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. This is also the position in South African law when calculating damages in the circumstances. 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. There has been some confusion within the South African legal profession in relation to the concepts of direct and consequential damages. 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) Is there even such a thing as punitive damages in South African law? 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. These types of damages are more difficult to … 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 is important to note that a class action does not constitute a separate cause of action. The way damages are measured depends on the type of claim. Damages arising out of natural and probable consequences of breach of contract are also considered an ordinary damage. 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 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. You cannot sit back, do nothing, and later claim for damage to your house. 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. It has a significant effect on the supply of goods and services. Please contact customerservices@lexology.com, An extract from The Global Damages Review - 2nd edition. 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. Abduction. 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. 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. 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. Practice Area (s): Shipping & Logistics. 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. See in general Saner Prescription. In addition, the tests applied by South African courts to ascertain whether such a cause of action exists are generally quite strict. 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. 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 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. 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. (You hired the building contractor to build walls without any cracks in it. 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. 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. There are, as has already been noted, three main delictual remedies: The majority of these organisations operated with invalid licences and lacked the experience and capacity to care for these patients. Or better still, accidentally slipping on some fabric softener in a supermarket and ensuring yourself a very comfortable retirement on Clifton Beach. A person (“wrongdoer”) who is being sued for damages caused by his/her negligence may raise a defence of contributory negligence. 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. Course. 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. You can recover this expense (the cost of the second plumber) along with your claim for damages against the first plumber. 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. Chapter 13 remedies - Summary The Law of Contract in South Africa. 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. 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. 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. 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. ", © Copyright 2006 - 2020 Law Business Research. Here’s how it works. 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. 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. 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. 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. Questions? Damages that arise in the ordinary course of events from the breach of contract are called ordinary damages. A quote from a builder for repairing the cracks will prove the extent. 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 reality is that it’s a little harder to get something for nothing than you may think. 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. University. The appeal was heard on 2 September 2019 and judgment is presently awaited. Michael Komape, a five-year-old child, drowned in a pit toilet on his school's premises in 2014. However, this does not mean that unlawful competition cases are not actionable in South Africa. Examples include the following: In September 2015, the Gauteng Health Department decided to terminate a long-standing contract with the Life Esidimeni Care Centre. 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. 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. It is therefore a usual consequence of this type of breach. 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. The diverse terminology used by legal professionals has only served to exacerbate the uncertainty. 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 next generation search tool for finding the right lawyer for you. Common law offences still applicable within the South African legal system are defined below. As a result, a mass transfer of over 1,400 mental healthcare patients took place. 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. 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 individuals in question were transferred to non-governmental organisations (NGOs). No. 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. Punitive damages include payment for pain and suffering. (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. Keep a step ahead of your key competitors and benchmark against them. Damages in delict are divided into: patrimonial/special damages (including medical costs, loss of income and the cost of repairs); non-patrimonial damages/general damages (including pain and suffering, disfigurement, loss of amenities and … Second, damages caps are limits on the amount of damages you can recover. 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. § That you suffered damages as a direct result of the breach of contract. Govindjee et al Commercial Law 2: Fresh Perspectives (2007) Pearson: South Africa. Examples of 'pure economic loss' claims that have been held to be actionable include the claim of 'interference in contractual relations' and 'negligent misstatements'. 5 See para 2.1 below. If you would like to learn how Lexology can drive your content marketing strategy forward, please email enquiries@lexology.com. Under the South African law of contract, a claim for damages may also be coupled with a claim for specific performance of the contract. Dale Hutchinson and Others. Law of Contract 202 [4] (JLCV202) Book title The Law of Contract in South Africa; Author. 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 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. 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. If your claim involves noneconomic damages, you should know there are some limitations in South Carolina. It confirmed that the degree or intensity of fault may indeed play an important role in the wrongfulness inquiry in these kinds of claims. In order to succeed with your claim, you must prove one of two things. 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). Intended to compensate the non-breaching party for losses suffered as the result of the of... Mean that unlawful competition cases are not actionable in South Africa, instead, decided on award! Most agreements you will find clauses that try to limit, or exclude! Of policy, infused by constitutional values actionable in South Africa ( Netherlands: Kluwer International... Previously interdicted Masstores from operating the supermarket in breach of contract in the wrongfulness inquiry in kinds! 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