QUESTION 1
(1.1) The harm or loss suffered due to the occurrence of the causing of emotional
shock include non-patrimonial loss for example, pain and suffering, shock, loss of
amenities of life, etc. In practice, compensation for emotional shock, which may
or may not be accompanied by physical injury, is usually claimed together with
compensation for pain and suffering under the head of general damages. 1 The
causing of actionable “emotional shock” is treated in practice as a specific form of
delict which may result in patrimonial loss or non-patrimonial loss. Patrimonial
loss is claimable with the Aquilian action. 2 For non-patrimonial loss suffered due
to the infringement of the personality right to physical-mental integrity, so-called
general damages may be claimed with the action for pain and suffering or the
actio iniuriarum.3 The actio de pauperie is also available if the emotional shock
was caused by the actions of a domestic animal. Both patrimonial and non-
patrimonial loss can be claimed with the actio de pauperie. The courts have, over
time, developed specific rules relating to claims for “emotional shock”. 4
Neethling and Potgieter5 describe emotional shock as any recognisable harmful
infringement of the brain and nervous system of a person. This definition refers to
the nature of a psychological lesion. Emotional shock was described by Mantame
AJ in the recent decision of Swartbooi v Road Accident Fund6 as shock suffered
by a person without necessarily personally sustaining bodily injury. This kind of
shock is caused when a third party observes or is mortified by an unpleasant or
disturbing event, for example, the killing of a relative or a person with whom the
third party had a close emotional relationship.
1
Potgieter et al, Law of Damages (Juta Cape Town 2016).
2
Potgieter et al.
3
Potgieter et al.
4
Potgieter et al.
5
Potgieter et al
6
Swartbooi v Road Accident Fund (2013) 1 SA 30 (WCC).
, If the causing of emotional shock should result in a successful delictual claim, all
five elements of a delict must generally be present, 7 namely: conduct;
wrongfulness; fault; causation; and harm or loss. In South African law a
generalising approach in comparison to the casuistic system of the English law of
torts is followed. It is therefore, not common to specify or name different delicts
as is the case in English law, but due to the influence of English law the causing
of emotional shock is nowadays recognised in the South African law as a specific
form of delict.8
The courts have adapted the general principles of delictual liability with regard to
a claim for the causing of emotional shock (as a specific form of a delict) and
developed the yardstick that the causing of emotional shock must have been
“reasonably foreseeable” for liability to ensue. This requirement of “reasonable
foreseeability of harm” is contentious in the sense that the explicit influence of
“reasonableness” itself is evident in determining the individual delictual elements
of wrongfulness, negligence and (legal) causation. 9 In particular, in respect of the
requirement of “reasonable foreseeability” in causing emotional shock, it is
uncertain whether one is dealing with the question of negligence only (insofar as
the generally accepted test for negligence requires harm to be reasonably
foreseeable and preventable by the reasonable person), or legal causation
(where reasonable foreseeability of harm is used as a criterion), or both
simultaneously.
It should be highlighted that damages are not awarded for causing “emotional
shock” in a wrongful and culpable manner 10 but rather for the mental
(psychological) and physical consequences11 flowing from the emotional shock
suffered and therefore some form of psychological or psychiatric injury needs to
7
Road Accident Fund Act 56 of 1996.
8
Mulder v South British Insurance Company Limited 1957 2 SA 444 (W).
9
Country Cloud Trading CC v MEC, Department of Infrastructure Development 2014 2 SA 214
(SCA).
10
Kotze J in Hauman v Malmesbury Divisional Council 1916 CPD 216 219.
11
Hing v Road Accident Fund 2014 3 SA 350 (WCC).
, be proven.12 Actual physical force or physical violence need not be the cause of
the injury.13 The court in Road Accident Fund v Sauls stated that it must be
accepted that in order to be successful a plaintiff in the respondent’s position
must prove, not mere nervous shock or trauma, but that she or he had sustained
a detectable psychiatric injury.14
(1.2) The issue of constitutional damages was first raised in Fose v Minister of Safety
and Security,15 when the Constitutional Court held that there was, in principle, no
reason why an award of damages could not be made to protect constitutional
rights, where damages would constitute “appropriate relief”. To date,
constitutional damages awarded by our courts have been linked to the monetary
damages suffered as a result of an infringement of a constitutional right. For
instance, in the Modderfontein Squatters case, which related to the infringement
of a right to property, the court awarded constitutional damages to the owner of
the property, calculated in terms of the Expropriation Act. 16 In Kate,17 a case
which dealt with an unreasonable delay on the part of the Department of Welfare
in considering an application for a social grant, the Supreme Court of Appeal did
this by granting constitutional damages directly based on two central
considerations. First, the unreasonable delay violated a substantive constitutional
right (the right to social assistance) rather than merely deviating from a
constitutional normative standard. Secondly, the breach extended beyond the
individual circumstances of the claimant and was representative of the State’s
endemic failure to fulfil its constitutional obligations.
The recognition of claims for constitutional damages for non-patrimonial
damages by our courts, however, remains uncertain. The SCA in Komape v
Minister of Basic Education,18 concerning the death of Michael Komape a five old
12
Road Accident Fund v Sauls 2002 2 SA 55 (SCA).
13
Hauman v Malmesbury Divisional Council 1916 CPD 216, 219.
14
Road Accident Fund v Sauls 2002 2 SA 55 (SCA).
15
Fose v Minister of Safety and Security 1997 (3) SA 786 (CC).
16
Expropriation Act 63 of 1975.
17
MEC for Department of Welfare v Kate (2006) ZASCA 49.
18
Komape and others v Minister of Basic Education and Others 2020 (2) SA 347 (SCA).
(1.1) The harm or loss suffered due to the occurrence of the causing of emotional
shock include non-patrimonial loss for example, pain and suffering, shock, loss of
amenities of life, etc. In practice, compensation for emotional shock, which may
or may not be accompanied by physical injury, is usually claimed together with
compensation for pain and suffering under the head of general damages. 1 The
causing of actionable “emotional shock” is treated in practice as a specific form of
delict which may result in patrimonial loss or non-patrimonial loss. Patrimonial
loss is claimable with the Aquilian action. 2 For non-patrimonial loss suffered due
to the infringement of the personality right to physical-mental integrity, so-called
general damages may be claimed with the action for pain and suffering or the
actio iniuriarum.3 The actio de pauperie is also available if the emotional shock
was caused by the actions of a domestic animal. Both patrimonial and non-
patrimonial loss can be claimed with the actio de pauperie. The courts have, over
time, developed specific rules relating to claims for “emotional shock”. 4
Neethling and Potgieter5 describe emotional shock as any recognisable harmful
infringement of the brain and nervous system of a person. This definition refers to
the nature of a psychological lesion. Emotional shock was described by Mantame
AJ in the recent decision of Swartbooi v Road Accident Fund6 as shock suffered
by a person without necessarily personally sustaining bodily injury. This kind of
shock is caused when a third party observes or is mortified by an unpleasant or
disturbing event, for example, the killing of a relative or a person with whom the
third party had a close emotional relationship.
1
Potgieter et al, Law of Damages (Juta Cape Town 2016).
2
Potgieter et al.
3
Potgieter et al.
4
Potgieter et al.
5
Potgieter et al
6
Swartbooi v Road Accident Fund (2013) 1 SA 30 (WCC).
, If the causing of emotional shock should result in a successful delictual claim, all
five elements of a delict must generally be present, 7 namely: conduct;
wrongfulness; fault; causation; and harm or loss. In South African law a
generalising approach in comparison to the casuistic system of the English law of
torts is followed. It is therefore, not common to specify or name different delicts
as is the case in English law, but due to the influence of English law the causing
of emotional shock is nowadays recognised in the South African law as a specific
form of delict.8
The courts have adapted the general principles of delictual liability with regard to
a claim for the causing of emotional shock (as a specific form of a delict) and
developed the yardstick that the causing of emotional shock must have been
“reasonably foreseeable” for liability to ensue. This requirement of “reasonable
foreseeability of harm” is contentious in the sense that the explicit influence of
“reasonableness” itself is evident in determining the individual delictual elements
of wrongfulness, negligence and (legal) causation. 9 In particular, in respect of the
requirement of “reasonable foreseeability” in causing emotional shock, it is
uncertain whether one is dealing with the question of negligence only (insofar as
the generally accepted test for negligence requires harm to be reasonably
foreseeable and preventable by the reasonable person), or legal causation
(where reasonable foreseeability of harm is used as a criterion), or both
simultaneously.
It should be highlighted that damages are not awarded for causing “emotional
shock” in a wrongful and culpable manner 10 but rather for the mental
(psychological) and physical consequences11 flowing from the emotional shock
suffered and therefore some form of psychological or psychiatric injury needs to
7
Road Accident Fund Act 56 of 1996.
8
Mulder v South British Insurance Company Limited 1957 2 SA 444 (W).
9
Country Cloud Trading CC v MEC, Department of Infrastructure Development 2014 2 SA 214
(SCA).
10
Kotze J in Hauman v Malmesbury Divisional Council 1916 CPD 216 219.
11
Hing v Road Accident Fund 2014 3 SA 350 (WCC).
, be proven.12 Actual physical force or physical violence need not be the cause of
the injury.13 The court in Road Accident Fund v Sauls stated that it must be
accepted that in order to be successful a plaintiff in the respondent’s position
must prove, not mere nervous shock or trauma, but that she or he had sustained
a detectable psychiatric injury.14
(1.2) The issue of constitutional damages was first raised in Fose v Minister of Safety
and Security,15 when the Constitutional Court held that there was, in principle, no
reason why an award of damages could not be made to protect constitutional
rights, where damages would constitute “appropriate relief”. To date,
constitutional damages awarded by our courts have been linked to the monetary
damages suffered as a result of an infringement of a constitutional right. For
instance, in the Modderfontein Squatters case, which related to the infringement
of a right to property, the court awarded constitutional damages to the owner of
the property, calculated in terms of the Expropriation Act. 16 In Kate,17 a case
which dealt with an unreasonable delay on the part of the Department of Welfare
in considering an application for a social grant, the Supreme Court of Appeal did
this by granting constitutional damages directly based on two central
considerations. First, the unreasonable delay violated a substantive constitutional
right (the right to social assistance) rather than merely deviating from a
constitutional normative standard. Secondly, the breach extended beyond the
individual circumstances of the claimant and was representative of the State’s
endemic failure to fulfil its constitutional obligations.
The recognition of claims for constitutional damages for non-patrimonial
damages by our courts, however, remains uncertain. The SCA in Komape v
Minister of Basic Education,18 concerning the death of Michael Komape a five old
12
Road Accident Fund v Sauls 2002 2 SA 55 (SCA).
13
Hauman v Malmesbury Divisional Council 1916 CPD 216, 219.
14
Road Accident Fund v Sauls 2002 2 SA 55 (SCA).
15
Fose v Minister of Safety and Security 1997 (3) SA 786 (CC).
16
Expropriation Act 63 of 1975.
17
MEC for Department of Welfare v Kate (2006) ZASCA 49.
18
Komape and others v Minister of Basic Education and Others 2020 (2) SA 347 (SCA).
