LPL4802
EXAM PACK
, lOMoARcPSD|21997160
MAY/JUNE EXAM 2023
By
Dumisani Nkomo
5801-180-3
Submitted in partial fulfilment of the requirements for the degree
BACHELOR OF LAWS
In the
SCHOOL OF LAW
LPL4802 – LAW OF DAMAGES
Page | 1
, lOMoARcPSD|21997160
QUESTION 1
(a) Delictual remedies
(i) Actio iniuriarum
The actio iniuriarum refers to a Roman law-derived action that is available in South
African law as a remedy for personality injury claims. The action provides a legal
remedy for harm caused to a person's reputation, dignity, or feelings by the wrongful
conduct of another person.
The term "personality injury" encompasses a wide range of wrongful conduct that
can harm someone's personal dignity or reputation. This may include defamation,
harassment, assault, and verbal abuse, among others. The actio iniuriarum is
particularly useful in cases where the harm caused is not physical but emotional and
psychological, such as in cases of discrimination or hate speech. In order to succeed
in a claim for personality injury, the plaintiff must demonstrate that
(i) The defendant's conduct was wrongful, intentional, and caused
harm to their personality rights.
(ii) The standard of proof required in such claims is on a balance
of probabilities.
(iii) The plaintiff may also need to prove damages suffered as a
result of the wrongful conduct.
In the case of Residents of Industry House and Others v Minister of Police and
Others 2023 (1) SACR 14 (CC), the plaintiffs brought a claim for personality injury
arising out of the police's alleged use of excessive force during a protest by residents
of a building. Several residents were injured, and the police were accused of
assaulting and harassing them. The Constitutional Court held that the plaintiffs had a
valid claim for personality injury under the actio iniuriarum and that the police's
conduct was wrongful, intentional, and had caused harm to the residents' personality
rights.
Page | 2
, lOMoARcPSD|21997160
In conclusion, the actio iniuriarum is a valuable remedy for personality injury claims
in South African law. It allows individuals to seek redress for harm caused to their
personal dignity and reputation by the wrongful conduct of others. It is often used in
cases where the harm suffered is not physical but emotional and psychological. The
case law supports the application of this remedy in cases of wrongful conduct by the
police or other state actors.
(b) The Constitutional Court in this case held that constitutional damages should
not always be preferred in personality injury claims. The Court noted that
while constitutional damages are an important remedy for vindicating
constitutional rights, they are not always appropriate in cases involving
personal injury. The Court reasoned that in cases involving personal injury,
the primary concern should be the compensation of the victim for the harm
suffered, rather than the vindication of constitutional rights. The Court stated
that where the harm suffered is primarily personal in nature, and not related to
the violation of the constitutional right, then ordinary delictual damages are
more appropriate than constitutional damages.
The Court also noted that constitutional damages should not be awarded in
cases where there are other remedies available to the victim, such as a claim
for assault or battery. In such cases, it would be unnecessary and potentially
confusing to award constitutional damages in addition to the other remedies
available.
The Court further held that constitutional damages should only be awarded in
exceptional cases where the violation of the constitutional right is egregious
and the harm suffered is significant. The Court stated that constitutional
damages should not be awarded as a matter of course, but rather should be
reserved for cases where the court is satisfied that they are necessary to
vindicate the constitutional rights at issue.
Page | 3
EXAM PACK
, lOMoARcPSD|21997160
MAY/JUNE EXAM 2023
By
Dumisani Nkomo
5801-180-3
Submitted in partial fulfilment of the requirements for the degree
BACHELOR OF LAWS
In the
SCHOOL OF LAW
LPL4802 – LAW OF DAMAGES
Page | 1
, lOMoARcPSD|21997160
QUESTION 1
(a) Delictual remedies
(i) Actio iniuriarum
The actio iniuriarum refers to a Roman law-derived action that is available in South
African law as a remedy for personality injury claims. The action provides a legal
remedy for harm caused to a person's reputation, dignity, or feelings by the wrongful
conduct of another person.
The term "personality injury" encompasses a wide range of wrongful conduct that
can harm someone's personal dignity or reputation. This may include defamation,
harassment, assault, and verbal abuse, among others. The actio iniuriarum is
particularly useful in cases where the harm caused is not physical but emotional and
psychological, such as in cases of discrimination or hate speech. In order to succeed
in a claim for personality injury, the plaintiff must demonstrate that
(i) The defendant's conduct was wrongful, intentional, and caused
harm to their personality rights.
(ii) The standard of proof required in such claims is on a balance
of probabilities.
(iii) The plaintiff may also need to prove damages suffered as a
result of the wrongful conduct.
In the case of Residents of Industry House and Others v Minister of Police and
Others 2023 (1) SACR 14 (CC), the plaintiffs brought a claim for personality injury
arising out of the police's alleged use of excessive force during a protest by residents
of a building. Several residents were injured, and the police were accused of
assaulting and harassing them. The Constitutional Court held that the plaintiffs had a
valid claim for personality injury under the actio iniuriarum and that the police's
conduct was wrongful, intentional, and had caused harm to the residents' personality
rights.
Page | 2
, lOMoARcPSD|21997160
In conclusion, the actio iniuriarum is a valuable remedy for personality injury claims
in South African law. It allows individuals to seek redress for harm caused to their
personal dignity and reputation by the wrongful conduct of others. It is often used in
cases where the harm suffered is not physical but emotional and psychological. The
case law supports the application of this remedy in cases of wrongful conduct by the
police or other state actors.
(b) The Constitutional Court in this case held that constitutional damages should
not always be preferred in personality injury claims. The Court noted that
while constitutional damages are an important remedy for vindicating
constitutional rights, they are not always appropriate in cases involving
personal injury. The Court reasoned that in cases involving personal injury,
the primary concern should be the compensation of the victim for the harm
suffered, rather than the vindication of constitutional rights. The Court stated
that where the harm suffered is primarily personal in nature, and not related to
the violation of the constitutional right, then ordinary delictual damages are
more appropriate than constitutional damages.
The Court also noted that constitutional damages should not be awarded in
cases where there are other remedies available to the victim, such as a claim
for assault or battery. In such cases, it would be unnecessary and potentially
confusing to award constitutional damages in addition to the other remedies
available.
The Court further held that constitutional damages should only be awarded in
exceptional cases where the violation of the constitutional right is egregious
and the harm suffered is significant. The Court stated that constitutional
damages should not be awarded as a matter of course, but rather should be
reserved for cases where the court is satisfied that they are necessary to
vindicate the constitutional rights at issue.
Page | 3
