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LPL4802 OCTOBER NOVEMBER PORTFOLIO (COMPLETE ANSWERS) Semester 2 2024 - DUE 30 October 2024
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LPL4802 OCTOBERNOVEMBER PORTFOLIO
(COMPLETE ANSWERS)
Semester 2 2024 - DUE 30 October
2024
CONTACT: biwottcornelius@gmail.com
,LPL4802 OCTOBER NOVEMBER PORTFOLIO
(COMPLETE ANSWERS) Semester 2 2024 - DUE 30
October 2024
CONTACT: biwottcornelius@gmail.com
QUESTION 1 (ESSAY) NATURE AND ASSESSMENT OF NON-
PATRIMONIAL LOSS AND DAMAGES FOR PATRIMONIAL
LOSS (4 pages, including rubric) PLEASE NOTE: You must
present your answer in the form of an essay. Its marking
rubric is attached with this examination paper. Study the
case Komape and others v Minister of Basic Education
and Others 2020 (2) SA 347 (SCA) a copy of it is attached
here and answer the questions below. N.B.: The question
below must be answered in the form of an essay. At the
end of your essay, attach the rubric that was supplied to
you along with your exam answer script. 1.1 Discuss what
the plaintiff needs to prove to be successful in a claim for
shock (psychiatric injury) as a head of damage for non-
patrimonial loss. Refer to relevant authority in your
answer. (15) 1.2 Critically analyse the reasons (advanced
by the court) why Constitutional damages, claimed in
addition to common law damages, must at present
necessarily fail. (10) TOTAL MARKS FOR THIS QUESTION:
[25] 3
For this essay, you’ll need to address two critical areas: (1) the plaintiff’s burden of proof in a
claim for shock (psychiatric injury) under non-patrimonial loss, and (2) the court's reasoning on
why Constitutional damages must fail in the context of Komape v Minister of Basic Education
and Others.
1.1 Proving Shock (Psychiatric Injury) in Non-Patrimonial Loss Claims
To be successful in a claim for shock (psychiatric injury) as a head of damage for non-
patrimonial loss, the plaintiff must establish the following elements:
, 1. Wrongfulness: The defendant’s conduct must be wrongful, meaning that it violated the
plaintiff’s legally protected interests. In cases of psychiatric injury, this often relates to
the emotional distress caused by witnessing a traumatic event or experiencing severe
emotional shock. The court will evaluate whether a reasonable person would foresee the
risk of emotional harm and whether it was preventable.
2. Negligence or Fault: The plaintiff must prove that the defendant acted negligently,
meaning that the defendant failed to exercise reasonable care that would have prevented
the psychiatric injury. In the Komape case, the negligent behavior of the Department of
Basic Education, which resulted in the tragic death of a child due to a defective school
toilet, serves as a basis for the claim.
3. Causation: There must be a clear link between the defendant’s wrongful act and the
plaintiff’s psychiatric injury. This requires both factual and legal causation. In legal
causation, the "proximate cause" or "legal proximity" must be established—there must be
a direct or sufficiently close connection between the event and the injury.
4. Psychiatric Injury: The plaintiff must show that the shock caused a recognized
psychiatric injury, which is often established through medical evidence. The courts
require that this injury is not merely grief or emotional upset but a diagnosable condition
like post-traumatic stress disorder (PTSD) or depression.
Case Law: In Bester v Commercial Union Insurance Co of SA Ltd 1973 (1) SA 769 (A),
the Appellate Division of the Supreme Court of South Africa laid down the requirement
that psychiatric injury must result from the immediate shock of the event. In Barnard v
Santam Bpk 1999 (1) SA 202 (SCA), it was reiterated that there must be a sudden and
unexpected traumatic event leading to the injury.
5. Defensive Arguments: The defense might argue that the psychiatric injury is too remote
or unforeseeable, or that the plaintiff was overly sensitive. However, the courts have
recognized that psychological reactions are subjective, and if a reasonably foreseeable
person in the plaintiff’s situation could have suffered psychiatric injury, the claim should
stand.
1.2 Failure of Constitutional Damages Claims
The Komape case also involves an analysis of the failure of constitutional damages claims.
Constitutional damages are awarded where an infringement of constitutional rights occurs, and
the courts have discretion to determine whether monetary compensation is appropriate in these
cases. However, the court provided reasons for rejecting these claims in addition to common law
damages:
1. Adequacy of Common Law Remedies: The court emphasized that where common law
remedies are sufficient to compensate for the loss suffered, there is no need for an
additional award of constitutional damages. In the Komape case, common law damages
for emotional trauma, funeral expenses, and the loss of support were already addressed
through delictual claims. Introducing constitutional damages would have resulted in
"double compensation."
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