1
DAMAGES CLAIMS IN SOUTH AFRICA
Take note that nothing in this booklet constitutes legal advice or advice of any kind.
Readers must consult official and alternative sources before making any decisions based
on the information provided herein. Templates and examples provided by us are merely a
guideline and nothing more. We will not accept any liability whatsoever.
Take note further that this booklet is intended for personal use only and that the
unauthorized sharing hereof is prohibited.
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1. What is a claim for damages?
A claim for damages is a financial claim that is instituted to compensate a plaintiff
as a result of a loss-causing event that occurred due to the fault of a defendant.
In terms of our law, a plaintiff may not claim punitive damages from a defendant,
as this is seen as being contrary to public policy. A plaintiff is only entitled to the
damages that he can prove he’s suffered. In some circumstances, a plaintiff may
claim constitutional damages, but we will touch on this shortly.
Damages are claimed due to a loss of some sort by the plaintiff which is caused
by the defendant. The loss in question can either be financial in nature
(pecuniary) or non-financial (non-pecuniary).
Pecuniary loss:
• Damages which are quantifiable.
• Examples:
o Hospital, medical and related expenses;
o Vehicle repair costs; and
o Reinstatement costs.
Non-pecuniary loss:
• Not as easily quantifiable. The nature of non-pecuniary loss makes it
difficult to assess or calculate damages in monetary terms.
• Examples:
o Pain and suffering; and
o Shock and trauma.
A claim for damages may be instituted by a plaintiff:
• In the event of a breach of contract;
• In the event that the defendant has committed a delict against the plaintiff;
or
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• 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.
2. What types of damages can I claim?
In South Africa, there are a few broad types of damages a litigant can claim
depending on the circumstances of the matter and nature of the breach. These
are:
• Contractual damages;
• Delictual damages;
• Statutory damages; and
• Constitutional damages.
3. Contractual damages
Contractual damages are those which stem from the breach of a contract. There
are three broad categories of remedies available to a plaintiff in the event of
breach of contract by a defendant:
• Remedies aimed at keeping the contract alive;
• Remedies aimed at cancelling the contract; and
• Remedies aimed at compensating the plaintiff for loss or harm caused by
the breach.
A claim for contractual damages is a remedy in the third category serving a
compensatory function.
Take note however, that damages for breach of contract may also be claimed
without cancelling the contract.
A claim for contractual damages may also be coupled with a claim for specific
performance of the contract.
To successfully claim contractual damages, a plaintiff must show that:
DAMAGES CLAIMS IN SOUTH AFRICA
Take note that nothing in this booklet constitutes legal advice or advice of any kind.
Readers must consult official and alternative sources before making any decisions based
on the information provided herein. Templates and examples provided by us are merely a
guideline and nothing more. We will not accept any liability whatsoever.
Take note further that this booklet is intended for personal use only and that the
unauthorized sharing hereof is prohibited.
, 2
1. What is a claim for damages?
A claim for damages is a financial claim that is instituted to compensate a plaintiff
as a result of a loss-causing event that occurred due to the fault of a defendant.
In terms of our law, a plaintiff may not claim punitive damages from a defendant,
as this is seen as being contrary to public policy. A plaintiff is only entitled to the
damages that he can prove he’s suffered. In some circumstances, a plaintiff may
claim constitutional damages, but we will touch on this shortly.
Damages are claimed due to a loss of some sort by the plaintiff which is caused
by the defendant. The loss in question can either be financial in nature
(pecuniary) or non-financial (non-pecuniary).
Pecuniary loss:
• Damages which are quantifiable.
• Examples:
o Hospital, medical and related expenses;
o Vehicle repair costs; and
o Reinstatement costs.
Non-pecuniary loss:
• Not as easily quantifiable. The nature of non-pecuniary loss makes it
difficult to assess or calculate damages in monetary terms.
• Examples:
o Pain and suffering; and
o Shock and trauma.
A claim for damages may be instituted by a plaintiff:
• In the event of a breach of contract;
• In the event that the defendant has committed a delict 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.
2. What types of damages can I claim?
In South Africa, there are a few broad types of damages a litigant can claim
depending on the circumstances of the matter and nature of the breach. These
are:
• Contractual damages;
• Delictual damages;
• Statutory damages; and
• Constitutional damages.
3. Contractual damages
Contractual damages are those which stem from the breach of a contract. There
are three broad categories of remedies available to a plaintiff in the event of
breach of contract by a defendant:
• Remedies aimed at keeping the contract alive;
• Remedies aimed at cancelling the contract; and
• Remedies aimed at compensating the plaintiff for loss or harm caused by
the breach.
A claim for contractual damages is a remedy in the third category serving a
compensatory function.
Take note however, that damages for breach of contract may also be claimed
without cancelling the contract.
A claim for contractual damages may also be coupled with a claim for specific
performance of the contract.
To successfully claim contractual damages, a plaintiff must show that:
