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Law of Damages
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Settling in? Good.
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Pull up a chair, put your phones on silent—unless you’re expecting a call from the
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te
te
Constitutional Court, in which case, leave—and let’s dive into the fascinating, albeit
ul
as
as
sometimes morbid, world of the Law of Damages.
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M
M
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Now, if you’re here because you think "Damages" is just a fancy word for a repair bill,
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e
te
ul
ul
you’re only about 10% correct. In the eyes of South African law, damages represent the
as
bridge between a tragedy and a bank account. It is the monetary translation of human
od
od
M
suffering, broken promises, and smashed-up Polos.
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M
r
r
●
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te
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M
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Today, we start at the very beginning.
od
od
Forget everything you’ve seen on Suits. We are in South Africa, where we blend Roman-
M
M
M
r
r
Dutch rigor with English pragmatism and a dash of Constitutional spice
e
te
te
ul
as
as
.1. What Exactly Are "Damages"?
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r
(The Definition)
e
e
te
Before you can claim a cent, you need to understand what we are actually measuring. In
ul
ul
as
our law, damage (singular) is the loss or diminution of a person's interests. Damages
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od
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(plural) is the money the court orders the wrongdoer to pay to make up for that loss.
M
M
r
r
e
te
te
ul
The fundamental objective—and write this down, because it’s the "Golden Rule" for your
as
as
exams—is full compensation (restitutio in integrum). We want to put the plaintiff back in
od
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M
the position they would have been in had the "bad thing" (the delict or the breach of
M
r
contract) never happened.
e
e
te
ul
ul
as
od
od
Of course, money can’t actually un-break your leg or make your ex-business partner less
M
of a sociopath, but since the law can’t turn back time, we use Rands as a consolation
M
M
r
r
e
te
te
prize
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as
as
od
The Great Divide: Patrimonial vs. Non-Patrimonial Loss
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M
M
r
e
e
te
If you want to pass this module, you must internalize this distinction. If you confuse
ul
these in an exam your marks will vanish
ul
as
od
od
M
Patrimonial Loss (Economic Loss)
M
M
r
r
e
te
te
This is "pocketbook" damage. It affects your patrimony (your estate/wealth). If your net
ul
as
worth was R100,000 yesterday and because someone crashed into you it’s now
as
od
R80,000, your patrimonial loss is R20,000.
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M
● Medical Expenses: Past and future.
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r
e
e
te
● Loss of Income: The salary you missed while in the hospital.
ul
ul
as
● Loss of Earning Capacity: If you can no longer work as a surgeon and have to
od
od
become a law professor (a tragic downgrade, I know).
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M
M
r
r
● Property Damage: The cost of fixing your car.
e
te
te
ul
as
as
od
M
M
M
e
e
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ul
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ul
t
as
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M
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e
te
te
ul
as
as
od
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M
M
r
e
e
te
ul
ul
as
od
od
M
M
M
r
r
e
te
te
ul
as
as
od
M
M
Law of Damages
M
r
e
e
te
ul
ul
as
od
od
Settling in? Good.
M
M
M
r
r
Pull up a chair, put your phones on silent—unless you’re expecting a call from the
e
te
te
Constitutional Court, in which case, leave—and let’s dive into the fascinating, albeit
ul
as
as
sometimes morbid, world of the Law of Damages.
od
M
M
M
r
Now, if you’re here because you think "Damages" is just a fancy word for a repair bill,
e
e
te
ul
ul
you’re only about 10% correct. In the eyes of South African law, damages represent the
as
bridge between a tragedy and a bank account. It is the monetary translation of human
od
od
M
suffering, broken promises, and smashed-up Polos.
M
M
r
r
●
e
te
te
ul
as
as
od
M
M
M
r
e
e
te
ul
ul
as
od
od
M
M
M
r
r
e
te
te
ul
as
as
od
M
M
M
e
e
ul
ul
od
od
, te
te
as
as
M
M
er
e
e
ul
ul
t
as
Today, we start at the very beginning.
od
od
Forget everything you’ve seen on Suits. We are in South Africa, where we blend Roman-
M
M
M
r
r
Dutch rigor with English pragmatism and a dash of Constitutional spice
e
te
te
ul
as
as
.1. What Exactly Are "Damages"?
od
M
M
M
r
(The Definition)
e
e
te
Before you can claim a cent, you need to understand what we are actually measuring. In
ul
ul
as
our law, damage (singular) is the loss or diminution of a person's interests. Damages
od
od
M
(plural) is the money the court orders the wrongdoer to pay to make up for that loss.
M
M
r
r
e
te
te
ul
The fundamental objective—and write this down, because it’s the "Golden Rule" for your
as
as
exams—is full compensation (restitutio in integrum). We want to put the plaintiff back in
od
M
M
the position they would have been in had the "bad thing" (the delict or the breach of
M
r
contract) never happened.
e
e
te
ul
ul
as
od
od
Of course, money can’t actually un-break your leg or make your ex-business partner less
M
of a sociopath, but since the law can’t turn back time, we use Rands as a consolation
M
M
r
r
e
te
te
prize
ul
as
as
od
The Great Divide: Patrimonial vs. Non-Patrimonial Loss
M
M
M
r
e
e
te
If you want to pass this module, you must internalize this distinction. If you confuse
ul
these in an exam your marks will vanish
ul
as
od
od
M
Patrimonial Loss (Economic Loss)
M
M
r
r
e
te
te
This is "pocketbook" damage. It affects your patrimony (your estate/wealth). If your net
ul
as
worth was R100,000 yesterday and because someone crashed into you it’s now
as
od
R80,000, your patrimonial loss is R20,000.
M
M
● Medical Expenses: Past and future.
M
r
e
e
te
● Loss of Income: The salary you missed while in the hospital.
ul
ul
as
● Loss of Earning Capacity: If you can no longer work as a surgeon and have to
od
od
become a law professor (a tragic downgrade, I know).
M
M
M
r
r
● Property Damage: The cost of fixing your car.
e
te
te
ul
as
as
od
M
M
M
e
e
ul
ul
od
od
