LPL4802
Portfolio Assessment (Semester 2)
DUE 30 October 2025
QUESTION 1: NATURE AND ASSESSMENT OF NON-PATRIMONIAL LOSS (INJURY
TO PERSONALITY)
1.1
In MEC for Health, Gauteng Provincial Government v AAS obo CMMS [2025] ZASCA
91, the Supreme Court of Appeal (SCA) delivered an important judgment clarifying how
courts should approach comparable cases when assessing general damages. The
majority judgment, written by Unterhalter AJA, stressed that while comparable cases are
not binding precedents for the determination of general damages, they serve as
valuable benchmarks to ensure uniformity and fairness in awards.1 This comparative
approach helps courts maintain consistency and avoid arbitrary or overly sympathetic
awards that could distort the principles of fairness and equality before the law.
The SCA criticised the trial court for relying too heavily on compassion and emotion in
calculating the damages, without adequately considering the patterns established in
previous judgments.2 The majority held that damages for non-patrimonial loss, such as
pain, suffering, and loss of amenities of life must be assessed within a rational
framework that aligns with prior awards in similar cases. This promotes predictability,
avoids injustice, and preserves public confidence in the legal system.3 The court
1
MEC for Health, Gauteng Provincial Government v AAS obo CMMS [2025] ZASCA 91 (20 June 2025) para 41.
2
Ibid para 44.
3
Ibid para 46.
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All materials are for study assistance only. We do not condone academic dishonesty. Use at your own risk.
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Redistribution, resale, or sharing without permission is prohibited.
, emphasised that judicial discretion in awarding damages must be guided, but not
confined, by precedent.
In doing so, the SCA reaffirmed the principle established in De Jongh v Du Pisanie NO
2005 (5) SA 457 (SCA), where Brand JA observed that previous awards should act as a
“broad guideline” rather than a rigid formula.4 The value of consistency is to prevent
unreasonable disparities between awards for similar injuries, while still allowing for
flexibility when unique facts justify deviation. Similarly, in Protea Assurance Co Ltd v
Lamb 1971 (1) SA 530 (A), the court highlighted that previous decisions aid in
determining a “reasonable range” for compensation, ensuring moderation and
proportionality.5
The SCA also cautioned against excessive awards that may result from subjective
sympathy rather than objective reasoning.6 The court a quo in the AAS case was found
to have failed to strike this balance, as it did not sufficiently align its award with
comparable cases where claimants had suffered similar injuries and long-term
conditions. Unterhalter AJA noted that the role of comparable cases is to “locate the
award within an established judicial framework” that respects both the dignity of the
claimant and the principles of legal certainty.7 The majority therefore reduced the award
for general damages, reasoning that courts must temper compassion with consistency,
ensuring that damages are fair both to the plaintiff and to the broader legal system.
Furthermore, the court endorsed the view that inflation and economic changes should
be considered when referring to past cases, but such adjustments must not be
exaggerated.8 Ultimately, the proper approach is comparative, rational, and moderate
one that ensures similar injuries result in broadly similar awards, reflecting the
constitutional principle of equality and justice.
4
De Jongh v Du Pisanie NO 2005 (5) SA 457 (SCA) at 476D-E.
5
Protea Assurance Co Ltd v Lamb 1971 (1) SA 530 (A) at 535H.
6
MEC for Health, Gauteng Provincial Government v AAS obo CMMS supra para 49.
7
Ibid para 50.
8
Sandler v Wholesale Coal Suppliers Ltd 1941 AD 194 at 200.
Disclaimer:
All materials are for study assistance only. We do not condone academic dishonesty. Use at your own risk.
We are not liable for any consequences arising from misuse.
Redistribution, resale, or sharing without permission is prohibited.
Portfolio Assessment (Semester 2)
DUE 30 October 2025
QUESTION 1: NATURE AND ASSESSMENT OF NON-PATRIMONIAL LOSS (INJURY
TO PERSONALITY)
1.1
In MEC for Health, Gauteng Provincial Government v AAS obo CMMS [2025] ZASCA
91, the Supreme Court of Appeal (SCA) delivered an important judgment clarifying how
courts should approach comparable cases when assessing general damages. The
majority judgment, written by Unterhalter AJA, stressed that while comparable cases are
not binding precedents for the determination of general damages, they serve as
valuable benchmarks to ensure uniformity and fairness in awards.1 This comparative
approach helps courts maintain consistency and avoid arbitrary or overly sympathetic
awards that could distort the principles of fairness and equality before the law.
The SCA criticised the trial court for relying too heavily on compassion and emotion in
calculating the damages, without adequately considering the patterns established in
previous judgments.2 The majority held that damages for non-patrimonial loss, such as
pain, suffering, and loss of amenities of life must be assessed within a rational
framework that aligns with prior awards in similar cases. This promotes predictability,
avoids injustice, and preserves public confidence in the legal system.3 The court
1
MEC for Health, Gauteng Provincial Government v AAS obo CMMS [2025] ZASCA 91 (20 June 2025) para 41.
2
Ibid para 44.
3
Ibid para 46.
Disclaimer:
All materials are for study assistance only. We do not condone academic dishonesty. Use at your own risk.
We are not liable for any consequences arising from misuse.
Redistribution, resale, or sharing without permission is prohibited.
, emphasised that judicial discretion in awarding damages must be guided, but not
confined, by precedent.
In doing so, the SCA reaffirmed the principle established in De Jongh v Du Pisanie NO
2005 (5) SA 457 (SCA), where Brand JA observed that previous awards should act as a
“broad guideline” rather than a rigid formula.4 The value of consistency is to prevent
unreasonable disparities between awards for similar injuries, while still allowing for
flexibility when unique facts justify deviation. Similarly, in Protea Assurance Co Ltd v
Lamb 1971 (1) SA 530 (A), the court highlighted that previous decisions aid in
determining a “reasonable range” for compensation, ensuring moderation and
proportionality.5
The SCA also cautioned against excessive awards that may result from subjective
sympathy rather than objective reasoning.6 The court a quo in the AAS case was found
to have failed to strike this balance, as it did not sufficiently align its award with
comparable cases where claimants had suffered similar injuries and long-term
conditions. Unterhalter AJA noted that the role of comparable cases is to “locate the
award within an established judicial framework” that respects both the dignity of the
claimant and the principles of legal certainty.7 The majority therefore reduced the award
for general damages, reasoning that courts must temper compassion with consistency,
ensuring that damages are fair both to the plaintiff and to the broader legal system.
Furthermore, the court endorsed the view that inflation and economic changes should
be considered when referring to past cases, but such adjustments must not be
exaggerated.8 Ultimately, the proper approach is comparative, rational, and moderate
one that ensures similar injuries result in broadly similar awards, reflecting the
constitutional principle of equality and justice.
4
De Jongh v Du Pisanie NO 2005 (5) SA 457 (SCA) at 476D-E.
5
Protea Assurance Co Ltd v Lamb 1971 (1) SA 530 (A) at 535H.
6
MEC for Health, Gauteng Provincial Government v AAS obo CMMS supra para 49.
7
Ibid para 50.
8
Sandler v Wholesale Coal Suppliers Ltd 1941 AD 194 at 200.
Disclaimer:
All materials are for study assistance only. We do not condone academic dishonesty. Use at your own risk.
We are not liable for any consequences arising from misuse.
Redistribution, resale, or sharing without permission is prohibited.
