LPL4802
PORTFOLIO ASSESSMENT (SEMESTER 2)
DUE 30 October 2025
QUESTION 1: NATURE AND ASSESSMENT OF NON-PATRIMONIAL LOSS (INJURY
TO PERSONALITY)
1.1
The majority judgment in MEC for Health, Gauteng Provincial Government v AAS obo
CMMS (401/2023) [2025] ZASCA 91 dealt with how a court must approach the
assessment of general damages for non-patrimonial loss, particularly where a claimant
suffers serious injury to their personality interests such as dignity, physical integrity, or
emotional well-being. The judgment reaffirmed that courts should adopt a structured and
comparative approach rather than making awards based purely on sympathy or broad
discretion.1
The majority held that when determining the amount of general damages, a court must
first identify the nature and extent of the injury and then compare the case before it to
previous decided cases with similar facts and outcomes. This comparison provides a
benchmark for reasonableness and uniformity in awards across cases. The principle is
not that past cases dictate the outcome, but rather that they serve as a “useful guide” to
ensure that the award falls within the range of fairness and proportionality recognised in
earlier decisions.2
The majority further emphasised that the purpose of general damages is compensatory.
It is not to punish the defendant or to enrich the claimant, but to offer some satisfaction
for the infringement of personality rights and to restore, as far as money can, the
personal loss suffered. To achieve this, courts must balance the seriousness of the
injury, the duration of the suffering, and the impact on the claimant’s enjoyment of life.
1
MEC for Health, Gauteng Provincial Government v AAS obo CMMS (401/2023) [2025] ZASCA 91 (20 June 2025).
2
De Jongh v Du Pisanie NO 2005 (5) SA 457 (SCA).
, Importantly, these factors must be weighed in light of how previous courts have valued
similar losses.3
In AAS, the Supreme Court of Appeal found that the court a quo failed to perform this
comparative exercise properly. The high court had awarded a large sum for general
damages without clearly linking it to comparable cases or justifying why such a high
amount was necessary in this matter. The majority pointed out that this approach risks
inconsistency and over-compensation, both of which undermine the fairness of the law
of damages. By not analysing similar precedents, the lower court ignored the guiding
principle that justice between parties requires consistency and predictability in awards.4
The majority also warned against what they called “generous speculation”, where courts
make awards influenced by emotion or pity, especially in cases involving young or
severely injured claimants. Instead, the assessment should be grounded in objective
evaluation of evidence and guided by the established range of awards from similar
cases, adjusted for inflation and present social conditions.5
Another important principle emerging from the judgment is that the assessment of
general damages should always be individualised. While comparable cases serve as a
guide, the court must still account for the claimant’s unique circumstances, such as age,
the permanence of the injury, and the particular effect on their quality of life. The correct
approach therefore combines comparative consistency with individual fairness.
In conclusion, the majority stated that the court a quo should have applied a disciplined
method by identifying comparable authorities, analysing their relevance, and explaining
any deviation. The comparative approach is essential because it promotes equal
treatment of litigants and prevents unjustified inflation of awards. This principle has long
been recognised in South African law, where courts seek to strike a fair balance
between the plaintiff’s loss and the defendant’s liability.6
3
Potgieter JM & Visser JC, Law of Damages (3rd ed, Juta, 2012) ch 15.
4
MEC for Health, Gauteng Provincial Government v AAS obo CMMS, para [33].
5
Protea Assurance Co Ltd v Lamb 1971 (1) SA 530 (A).
6
Road Accident Fund v Marunga 2003 (5) SA 164 (SCA).
PORTFOLIO ASSESSMENT (SEMESTER 2)
DUE 30 October 2025
QUESTION 1: NATURE AND ASSESSMENT OF NON-PATRIMONIAL LOSS (INJURY
TO PERSONALITY)
1.1
The majority judgment in MEC for Health, Gauteng Provincial Government v AAS obo
CMMS (401/2023) [2025] ZASCA 91 dealt with how a court must approach the
assessment of general damages for non-patrimonial loss, particularly where a claimant
suffers serious injury to their personality interests such as dignity, physical integrity, or
emotional well-being. The judgment reaffirmed that courts should adopt a structured and
comparative approach rather than making awards based purely on sympathy or broad
discretion.1
The majority held that when determining the amount of general damages, a court must
first identify the nature and extent of the injury and then compare the case before it to
previous decided cases with similar facts and outcomes. This comparison provides a
benchmark for reasonableness and uniformity in awards across cases. The principle is
not that past cases dictate the outcome, but rather that they serve as a “useful guide” to
ensure that the award falls within the range of fairness and proportionality recognised in
earlier decisions.2
The majority further emphasised that the purpose of general damages is compensatory.
It is not to punish the defendant or to enrich the claimant, but to offer some satisfaction
for the infringement of personality rights and to restore, as far as money can, the
personal loss suffered. To achieve this, courts must balance the seriousness of the
injury, the duration of the suffering, and the impact on the claimant’s enjoyment of life.
1
MEC for Health, Gauteng Provincial Government v AAS obo CMMS (401/2023) [2025] ZASCA 91 (20 June 2025).
2
De Jongh v Du Pisanie NO 2005 (5) SA 457 (SCA).
, Importantly, these factors must be weighed in light of how previous courts have valued
similar losses.3
In AAS, the Supreme Court of Appeal found that the court a quo failed to perform this
comparative exercise properly. The high court had awarded a large sum for general
damages without clearly linking it to comparable cases or justifying why such a high
amount was necessary in this matter. The majority pointed out that this approach risks
inconsistency and over-compensation, both of which undermine the fairness of the law
of damages. By not analysing similar precedents, the lower court ignored the guiding
principle that justice between parties requires consistency and predictability in awards.4
The majority also warned against what they called “generous speculation”, where courts
make awards influenced by emotion or pity, especially in cases involving young or
severely injured claimants. Instead, the assessment should be grounded in objective
evaluation of evidence and guided by the established range of awards from similar
cases, adjusted for inflation and present social conditions.5
Another important principle emerging from the judgment is that the assessment of
general damages should always be individualised. While comparable cases serve as a
guide, the court must still account for the claimant’s unique circumstances, such as age,
the permanence of the injury, and the particular effect on their quality of life. The correct
approach therefore combines comparative consistency with individual fairness.
In conclusion, the majority stated that the court a quo should have applied a disciplined
method by identifying comparable authorities, analysing their relevance, and explaining
any deviation. The comparative approach is essential because it promotes equal
treatment of litigants and prevents unjustified inflation of awards. This principle has long
been recognised in South African law, where courts seek to strike a fair balance
between the plaintiff’s loss and the defendant’s liability.6
3
Potgieter JM & Visser JC, Law of Damages (3rd ed, Juta, 2012) ch 15.
4
MEC for Health, Gauteng Provincial Government v AAS obo CMMS, para [33].
5
Protea Assurance Co Ltd v Lamb 1971 (1) SA 530 (A).
6
Road Accident Fund v Marunga 2003 (5) SA 164 (SCA).
