Exam (elaborations)
LPL4802 ASSIGNMENT 01 2023 SEMESTER 1
- Institution
- University Of South Africa (Unisa)
- Book
- Law of Damages
THIS DOCUMENT CONTAINS REFERENCED ANSWERS FOR LAW OF DAMAGES ASSIGNMENT 01 2023 SEMESTER 01
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NAME:STUDENT NUMBER:
SUBJECT: Law of Damages
CODE: LPL4802
ASSIGNMENT NUMBER: 01
DUE DATE:
QUESTION 1: ESSAY TYPE
It is necessary to have a look at the issues of the case in order to analyse the approach
of the court in Economic Freedom Fighters v Manuel properly. The issue of the case is
to determine whether non-patrimonial losses such as a claim for defamation can be
quantized and whether they can have a claim for damages. In the following essay, i will
discuss the reasons the court (in the case of Economic Freedom Fighters and others v
Manuel 2021) put forward in support of the accepted practice, that general damages for
defamation must be instituted in an action proceeding.
An infringement of rights to the corpus (body), fama (reputation) and dignitas may cause
patrimonial loss. Cases where the dignitas may cause partimornial loss are cases
where the defendant loses creditworthiness or goodwill so he or she loses their clients.
In such cases damages must be computed with reference to the loss of income or profit.
In most cases it is impossible to have precise proof of the damage and the court should
, assess an amount ex bono et aequo. In an effort to keep causation within reasonable
limits, regard should be had for the principals of legal causation. 1
Rule 18(10) of the Uniform Rules of Court and rules 6(9) and 6(10) of the Magistrates’
Court Rules states that an individual claiming for personal injury has to specify the
nature and the extent of the injuries, their effects, and the duration of the resultant
disability. Courts need to use their discretion in cases like these. Compensation
awarded must be in proportion with the intensity of the injuries, effective, fair and
conservative.2 Principles that relate to quantification in cases of defamation claims apply
mutatis mutanda, this means that cases like these are each awarded on a case-by-case
basis and therefore every case is different and unique. 3
The main focus in this essay is the question regarding action and application
proceedings. Generally, the court prefers using action proceedings in cases of
defamation however in the case of Economic Freedom Fighters and others v Manuel
2021 an application proceeding was used. Below i shall discuss detailed reasons
behind why the court favours action proceedings in cases of defamation.
The most obvious distinction between action and application proceedings is that action
proceedings envisage the presentation of facts and evidence verbally in court during a
trial, whereas application proceedings envisage the presentation of facts and evidence
in affidavits that will be read by a judge before hearing arguments in court on the issues
raised in the affidavits. 4 The court stated the following in paragraph [92] of the Economic
Freedom Fighters and others v Manuel case:
It is necessary to consider the proper process for prosecuting such claims. An unliquidated
claim for damages must be pursued by institution of an action. No less so, when an aggrieved
victim of a defamatory statement seeks compensation. That has always been the position and it
is reflected in the Uniform Rules of Court. Uniform Rule 17(2) compels a person claiming
1
J M Portgieter, L Steynberg and T B Floyd, Law of Damages ( 3rd edn, Juta 2012) p 495.
2
Rule 18(10) of the Uniform Rules of Court and rules 6(9) and 6(10) of the Magistrates’ Court Rules.
3
Portgieter, Steynberg and Floyd, Law of Damages 498.
4
Vuyo Mkwibiso ‘which road to choose, Action or Application’ 1.
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