LPL4802 PORTFOLIO SECOND SEMESTER 2022 date 28th october

QUESTION 1: QUANTUM OF DAMAGES FOR PATRIMONIAL LOSS CAUSED BY CERTAIN FORMS OF DELICT a) Differences between the object of contractual and delictual damages. The Court in Trotman v Edwick 1 held that a litigant who sues on contract sues to have his bargain or its equivalent in money or in money and kind. Whereas, the litigant who sues on delict sues to recover the loss which he has sustained because of the wrongful conduct of another, in other words; the amount by which the litigant’s patrimony has been diminished by such conduct be restored to him. The measure of damages adopted by the court was the difference between the purchase price and the actual value of the property sold. The court would not, however, lay down a general rule and emphasized that each case depends upon its own facts. A plaintiff may, of course, recover damages only for such loss as was caused by the fraud. The above reasoning by the Court was further confirmed in Glaston House (Pty) Ltd v Inag (Pty) Ltd 2 where the court held that the purpose of delictual damages is to restore to the purchaser the loss suffered/sustained because of the wrongful conduct of the seller, that is, the amount by which his patrimony has thereby diminished. The appellant is accordingly entitled to recover the amount by which its patrimony has been reduced as a result of the non-disclosure. Therefore, it can be concluded that in contract the respondent has not alleged that the value of the plant is less than the respondent has paid for it. What the respondent does, in effect, is to sue for the equivalent in money of its bargain. That is the contractual measure of damages.’ Therefore, the claimant in breach of contract is entitled to recover damages for the loss of his bargain. In tort (delict), on the other hand, no question of loss of bargain can arise: the claimant is not complaining of failure to implement a promise but of failure to leave him alone. 1 Trotman v Edwick 1951 (1) SA 443 (A) [449]. 2 Glaston House (Pty) Ltd v Inag (Pty) Ltd 1977 (2) SA 846. Downloaded by kelvin githinji () lOMoARcPSD| b) Punitive damages in the South African common law of damages (chp 13, last sentence on page 441, footnote 147) Section 24(3) of the Copyright Act 98 of 1978 avers that where in an action under this section an infringement of copyright is proved or admitted, and the court having regard, in addition to all other material considerations, to the flagrancy of the infringement and any benefit shown to have accrued to the defendant by reason of the infringement, is satisfied that effective relief would not otherwise be available to the plaintiff, the court shall in assessing damages for the infringement have power to award such additional damages as the court may deem fit. In Priority Records (Pty) Ltd v Ban-Nab Radio and TV,3 the court held that the legislature could not have intended s 24(3) to permit the award of damages not recognized by the South African common law, damages may be similar to that obtainable in terms of the actio iniuriarum but is not restricted thereto. In casu the court refused to award additional damages. It was further held in CCP Record Co (Pty) Ltd v Avalon Record Centre4 that one must not by peering at the words ’’effective’’ and ’’additional’’ in the expressions ‘‘effective relief’’ and ‘‘additional damages’’ lose sight of the fact that, by making benefit to a defendant and flagrancy criteria for an award of damages, the section not merely augments existing delictual remedies by widening the power of the Court to award damages but introduces relief where no cause of action for relief had existed before. Additional damages, then, are damages of a kind which would not, but for the provisions of s 24(3), be recoverable at all, either because they are unprovable (and the scope for finding damages unp