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ULTIMATE TUTORS
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LAW of damages take home examination
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DEPARTMENT OF PRIVATE LAW
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DUE DATE 30/may/2023
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Semester 1 2023
Written by ULTIMATE TUTORS
We pride ourselves in providing quality study materials
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, ACADEMIC DECLRARATION OF HONESTY
Declaration: …………………………………..
1. I understand what academic dishonesty entails and am aware of UNISA’s
policies in this regard.
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2. I declare that this assignment is my own, original work. Where I have used
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someone else’s work I have indicated this by using the prescribed style of
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referencing. Every contribution to, and quotation in this assignment from the
work or works of other people has been referenced according to this style.
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3. I have not allowed, and will not allow, anyone to copy my work with the
intention of passing it off as his or her own work.
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4. I did not make use of another student’s work and submitted it as my own.
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NAME:
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STUDENT NUMBER:
MODULE CODE:
SIGNATURE:
DATE:
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, QUESTION 1:
NATURE AND ASSESSMENT OF NON-PATRIMONIAL LOSS
(ESSAY)
(A) The actio iniuriarum is the general remedy for the violation of
personality rights. Its principal objective is to defend plaintiffs from
negligent and willful violations of fundamental rights and to make
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provisions for the recovery of damages where such violations occur.
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Three fundamental components make to an action under the Actio
iniuriarum: (a) unlawful and purposeful infringement of a person's right
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to privacy.
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The actio iniuriarum covered violations of corpus (bodily integrity),
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dignitas (dignity), and fama (reputation) in Roman law and later in
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Roman-Dutch law. The rights to privacy and identification have been
added to this list by contemporary law. The term "dignitas" in common
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law has a fairly broad definition that includes privacy and identification
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as well as the word "dignity" as it appears in the dictionary. The right to
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identify is one way in which the right to privacy can be violated, and as
a result, it also violates the right to dignity generally. Any genuine
breach of corpus, dignitas, or fama constitutes the injury component
that serves as the foundation for the claim. of the event. Even though
our law recognizes each of these rights as a distinctive, distinct
persons interest, overlaps do happen. Any of these rights may be
harmed as a result of a violation of another. For instance, an assault
may involve both a violation of bodily integrity and a diminution of
dignity.
Additionally, it should be recognized that a single cause or occurrence
may simultaneously give rise to many delict claims under different acts.
As an illustration, John hits Vusi in the workplace in front of Vusi's
coworkers. Vusi obtains medical care at a hospital and is unable to
work for a week as a result of the assault. In the event that Vusi has a
"zero-hours" contract, payment only for the task he performs, and is
not eligible for medical assistance, he may be able to make three
claims related to the occurrence. He could sue for general damages for
pain and suffering he endured during and after the assault (under the
action for pain and suffering), general damages for the impairment of
his dignity (under the actio iniuriarum), and special damages for
patrimonial loss resulting from his loss of earnings and medical
expenses (under the Aquilian action). This is because the assault
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, occurred in front of his coworkers and was a humiliating experience. In
a "rolled-up" lawsuit, Vusi would present the courts with a single claim
rather than three distinct delict claims. In Bennett v Minister of Police A
policeman ordered Bennett, for no reason, to get into a police van.
When Bennett refused to do so, and resisted
attempts to put him into the van by clinging to the wire mesh
surrounding the van’s passenger compartment, the policeman used a
wooden police baton to beat Bennett’s hands loose. He broke two
fingers on Bennett’s right hand. Bennett did not suffer any patrimonial
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loss in the form of medical expenses, or any loss of earnings, because
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he was laid off from work for two months on full pay. He was
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nonetheless awarded general damages for the pain and discomfort
that resulted from the incapacitation of his hand. Bennett consequently
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obtained R600 in general damages for physical injuries and R50 for the
"objectively-regarded contumelia."
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The ruling presents a variety of questions, including the possibility of
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distinct claims under the actio iniuriarum (for breach of dignity), the
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Germanic remedy (for pain and suffering), and the Aquilian action (for
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loss of patrimony).
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(B) In terms of section 38 of the Constitution, a court may award damages
for a violation of rights in the Bill of Rights.
Section 38 refers to the granting of “appropriate relief”. The concept of
appropriate relief includes an award of constitutional damages.
Whether it is appropriate to make an award of damages and what the
measure of damages should be will depend on the circumstances in
each case, the particular rights which have been infringed and the
other remedies available.
Constitutional damages are not appropriate relief where a claimant
could be compensated by delictual damages and where that in itself is
a powerful vindication of the constitutional rights in question. Nor will
constitutional damages be awarded where there is no evidence to
prove that such damages would serve as a significant deterrent
against an individual or systemic repetition of the infringement in
question.
Where the defendant is a State entity, scarce resources in a country
such as South Africa may render it inappropriate on the facts of each
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