LPL4802 FINAL PORTIFOLIO OCT/NOV 2021 (DETAILED ANSWERS).

IMPROVE YOUR FINAL MARK QUESTION 1 (ESSAY) QUANTUM OF DAMAGES AND SATISFACTION FOR NON-PATRIMONIAL LOSS (INJURY TO PERSONALITY) Study the case of Economic Freedom Fighters and others v Manuel 2021 (3) SA 425 (SCA) and answer the question below. In para [92], the court exclaimed [sic], “An unliquidated claim for damages must be pursued by institution of an action.” However, contrary to this accepted practice, the attorneys for the respondent brought the claim of damages for defamation in an application proceeding. Discuss fully, the reasons the court put forward in support of accepted practice, that general damages for defamation must be instituted in an action proceeding. Refer to relevant case law and legislation in your answer. (25) [25 marks] 4 QUESTION 2 (THEORY) COLLATERAL SOURCE RULE AND COMPENSATING ADVANTAGES (RES INTER ALIOS ACTA) In this part question, we provide you with a description of certain concepts that relate with the collateral source rule. You are required to copy out each description and then state the legal concept it describes. 2.1 Evidence of a transaction between A and B that is disregarded in the calculation of damages B claims from C. (2) 2.2 An act of generosity and/or payment received by the plaintiff from a third party in the absence of any service rendered which must necessarily be disregarded in the computation of his or her damages. (2) 2.3 The idea that the insurer may assume the position of the insured in order to claim all the rights that the insured had against the third party. (2) 2.4 Damaged property, the value of which is relevant in the assessment of the actual damage to the property. (2) 2.5 The responsibility/expectation that one who claims damages must undertake reasonable steps to restrict his or her damage. (2) 2.6 The idea that a certain benefit may or may not be considered in the calculation of damages is not cast in stone. However, legal writers have developed certain principles to be considered. Identify and discuss any five of these principles. Provide credible examples in each instance. (15) [25 marks] 5 QUESTION 3 State two patrimonial claims he may institute against the Road Accident Fund and the documents he should provide to substantiate his claims. (4) 6 3.2 State any three injuries in respect of which he may not claim non-patrimonial loss from the RAF and the reason why it is so. (4) 3.3 Cornor tells you that HHT Bakeries has turned down his claim for the combined loss of wheels and the battery. Explain to him why it is so. (2) 3.4 Cornor wishes to claim against HHT Bakeries the value of his Apple watch in USD. Use authority to shed light on his chances of success. (2) 3.5 Besides the value of the watch, what else can Cornor claim from the HHT Bakeries? Explain to him why he cannot claim it from the RAF. Provide authority to your answer. (4) 3.6 Cornor tells you that he urgently needs money to pay for past hospital bills and for his subsistence while awaiting the outcome of the trial on the overall quantum of damages. Advise him on what he can do. Use legislation to support your answer. (8) 3.7 What is the 2021 statutory limit in respect of claims for loss of income and loss of support? (1) [25 marks] 7 QUESTION 4 (DRAFTING) Read the case of Mdlekeza v Gallie 2021 (4) SA 531 (WCC) and then answer the questions below. Please note that your answers should be true in form and substance. We encourage you to find precedents to answer this part of the exam. 4.1 Draft a notice of motion to both the registrar of court and the respondent that the applicant in this case could possibly have drafted, in lieu of defamation. Your answer should be as close in form and substance to the First Schedule, Form 2 (a) of the Uniform Rules. Do not include the founding affidavit. (10) 4.2 Further, draft an answering affidavit that the respondent in this case would possibly have drafted, in response to the notice of motion. Your facts should be close in substance to the testimony that Slingers J read out in his judgment in court. (15) [25 marks