,LPL4802 October November Portfolio (COMPLETE ANSWERS)
Semester 2 2025 - DUE 30 October 2025
QUESTION 1: NATURE AND ASSESSMENT OF NON-
PATRIMONIAL LOSS (INJURY TO PERSONALITY)
QUESTION 1.1
According to the majority judgment, how should the court a quo have
approached comparable cases when assessing general damages? Discuss
with reference to the relevant authority cited in the judgment.
(15 marks)
ANSWER
According to the majority judgment in MEC for Health, Gauteng
Provincial Government v AAS obo CMMS (401/2023) [2025]
ZASCA 91 (20 June 2025), the court a quo failed to follow the correct
approach when using comparable cases to assess general damages.
The Supreme Court of Appeal (per Kgoele JA) held that previous
awards for general (non-patrimonial) damages should serve only as a
guide and not as a fixed rule. The Court emphasised that each case must
be decided on its own facts and circumstances, and comparisons must
be made carefully and meaningfully.
1. Comparable cases are only a guide, not binding
The Court cited Sandler v Wholesale Coal Suppliers Ltd 1941 AD
194 at 199, where Watermeyer JA explained that awards for non-
pecuniary loss cannot be determined with mathematical precision but
, must be based on the “broadest general considerations.” The Court
stressed that past awards should not interfere with the trial court’s
discretion; they simply offer guidance in maintaining consistency and
fairness between cases (MEC for Health v AAS obo CMMS [2025]
ZASCA 91 para 49).
2. Avoid slavish following of past awards
The majority held that the high court “should not slavishly follow
previous awards.” Instead, it must identify the relevant factors—such as
the degree of pain, suffering, and loss of amenities—and explain how
these relate to or differ from earlier cases (para 49). A mechanical
adoption of previous awards without contextual analysis amounts to a
misdirection (see also Road Accident Fund v Marunga 2003 (5) SA 164
(SCA)).
3. Ensure factual comparability
The Court stated that for a comparison to be valid, the facts of the
earlier cases must be known “in sufficient detail.” The court must
evaluate whether the claimant’s condition, pain, awareness, disability,
and life expectancy are materially similar before relying on those awards
(para 49). Without factual similarity, reliance on other cases is
unjustified (Nkala v Harmony Gold Mining Co Ltd 2016 (5) SA 240
(GJ)).
4. Provide a reasoned and transparent basis
The majority criticised the court a quo for failing to “state the factors
and circumstances it considered important in damages assessment” and
for not providing “a reasoned basis” for its final figure (para 49). The
Semester 2 2025 - DUE 30 October 2025
QUESTION 1: NATURE AND ASSESSMENT OF NON-
PATRIMONIAL LOSS (INJURY TO PERSONALITY)
QUESTION 1.1
According to the majority judgment, how should the court a quo have
approached comparable cases when assessing general damages? Discuss
with reference to the relevant authority cited in the judgment.
(15 marks)
ANSWER
According to the majority judgment in MEC for Health, Gauteng
Provincial Government v AAS obo CMMS (401/2023) [2025]
ZASCA 91 (20 June 2025), the court a quo failed to follow the correct
approach when using comparable cases to assess general damages.
The Supreme Court of Appeal (per Kgoele JA) held that previous
awards for general (non-patrimonial) damages should serve only as a
guide and not as a fixed rule. The Court emphasised that each case must
be decided on its own facts and circumstances, and comparisons must
be made carefully and meaningfully.
1. Comparable cases are only a guide, not binding
The Court cited Sandler v Wholesale Coal Suppliers Ltd 1941 AD
194 at 199, where Watermeyer JA explained that awards for non-
pecuniary loss cannot be determined with mathematical precision but
, must be based on the “broadest general considerations.” The Court
stressed that past awards should not interfere with the trial court’s
discretion; they simply offer guidance in maintaining consistency and
fairness between cases (MEC for Health v AAS obo CMMS [2025]
ZASCA 91 para 49).
2. Avoid slavish following of past awards
The majority held that the high court “should not slavishly follow
previous awards.” Instead, it must identify the relevant factors—such as
the degree of pain, suffering, and loss of amenities—and explain how
these relate to or differ from earlier cases (para 49). A mechanical
adoption of previous awards without contextual analysis amounts to a
misdirection (see also Road Accident Fund v Marunga 2003 (5) SA 164
(SCA)).
3. Ensure factual comparability
The Court stated that for a comparison to be valid, the facts of the
earlier cases must be known “in sufficient detail.” The court must
evaluate whether the claimant’s condition, pain, awareness, disability,
and life expectancy are materially similar before relying on those awards
(para 49). Without factual similarity, reliance on other cases is
unjustified (Nkala v Harmony Gold Mining Co Ltd 2016 (5) SA 240
(GJ)).
4. Provide a reasoned and transparent basis
The majority criticised the court a quo for failing to “state the factors
and circumstances it considered important in damages assessment” and
for not providing “a reasoned basis” for its final figure (para 49). The
