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LPL4802 OCTOBER NOVEMBER PORTFOLIO (COMPLETE ANSWERS) Semester 2 2024 - DUE 30 October 2024
LPL4802 OCTOBER NOVEMBER PORTFOLIO (COMPLETE ANSWERS) Semester 2 2024 - DUE 30 October 2024
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,LPL4802 OCTOBER NOVEMBER PORTFOLIO(COMPLETE ANSWERS) Semester 2 2024 - DUE 30
October 2024; 100% TRUSTED Complete, trusted
solutions and explanations.
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
Nature and Assessment of Non-Patrimonial Loss and Damages
for Patrimonial Loss in Komape and Others v Minister of Basic
Education and Others (2020)
In South African law, the assessment of non-patrimonial and
patrimonial damages is a complex and important aspect of the
,compensation system. Non-patrimonial damages relate to harm
that cannot be precisely quantified in monetary terms, such as
emotional distress or psychological harm. Patrimonial loss, on
the other hand, refers to actual financial losses. The case of
Komape and Others v Minister of Basic Education and Others
(2020 (2) SA 347 (SCA)) provides a key example of the legal
principles guiding these claims.
1.1 Plaintiff’s Burden of Proof for Shock (Psychiatric Injury) as
Non-Patrimonial Loss
In order to succeed in a claim for psychiatric injury (commonly
referred to as "shock") as a head of non-patrimonial loss, the
plaintiff must establish several legal elements. This type of
injury involves harm to one’s mental or emotional well-being
and is often compensable when the injury arises from a
traumatic experience. The case of Komape sheds light on the
complexities involved in such claims, particularly in terms of the
burden of proof required.
Legal Elements to Prove for Shock (Psychiatric Injury)
1. Existence of a Recognized Psychiatric Injury: The first
requirement is that the plaintiff must demonstrate that
they suffered a recognized psychiatric injury. Mere
emotional distress or grief is not sufficient. The plaintiff
must show that the mental harm has been diagnosed by a
medical professional, such as a psychologist or psychiatrist,
and recognized as a serious condition that requires
medical attention. In Komape, the plaintiffs sought
, compensation for the emotional trauma suffered due to
the tragic death of a child, Michael Komape, who drowned
in a pit latrine.
2. Causation: The plaintiff must prove that the defendant’s
actions or omissions caused the psychiatric injury. This
requires demonstrating a direct link between the trauma
experienced and the defendant’s conduct. In the case of
Komape, this would involve showing that the psychological
harm suffered by Michael’s family was a direct result of the
negligence on the part of the Minister of Basic Education
and related parties, who were responsible for maintaining
the safety of school facilities, including sanitation.
3. Wrongfulness: The plaintiff must establish that the
defendant’s actions were wrongful. This element focuses
on whether the law imposes a duty on the defendant to
avoid causing harm to others. In cases of psychiatric injury,
the duty to prevent mental harm usually arises where the
defendant could foresee the harm as a result of their
actions. The state’s failure to provide safe and dignified
sanitation facilities in Komape was argued to be a breach
of this duty.
4. Fault (Negligence or Intention): The plaintiff must
demonstrate that the defendant acted negligently or
intentionally in a manner that resulted in the psychiatric
harm. Negligence is established when the defendant fails
to act in accordance with the standard of care expected in
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