Civil Claims in the High Court

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Ettienne Barnard Attorneys

is the trade name of Barnard Labuschagne Inc company reg no. 1999/015298/21

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ETTIENNE BARNARD ATTORNEYS

LITIGATORS, NEGOTIATORS, CONVEYANCERS and ADMINISTRATORS OF ESTATES

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DAMAGES

Proving the amount

The person or organization claiming compensation for damages, must always consider how the amount of the damages will be proved to the judge or magistrate. This is often the most difficult aspect of any claim. There are cases where the injury is easy to prove, but the damages not. The amount claimed should be well researched and properly considered with reference to the facts of each case. The costs of litigation and the fact that one usually only has one case in which all the related damages should be claimed, underlines the need to properly think through all the areas in which damages have been or might be suffered.

Injury cannot always be accurately quantified. In trying to calculate compensation for damages suffered, one should have regard to the type of act that caused the injury and the type of damages suffered.

The special damages such as medical expenses or very specific disbursements flowing from the injury, are proved by accounts and evidence lead in court that the exences are or were reasonable. Expert evidence by specific practitioners or people supplying the specific goods or services can be lead to prove the reasonability of such expences. Where it is expected that further special expenses will be necessary in future ‹for example a future medical operation› this may be included in the claim. Where there is a possibility of future expence, but the need for such expence is not 100% clear, the court will assess the prospects and could award a portion of the expected expence.

Compensation for loss of income as a result of the injury can also be claimed. The claimant should consider the loss suffered from the time that the injury was committed, to the time that the claim is instituted. In addition, the expected future loss of earnings should be claimed.

The wider category of damages is referred to as General Damages. This is often referred to as damages for ‘Pain and Suffering’ or ‘discomfort’. To express the discomfort, pain, suffering or loss of amenities of life in a monetary value is not an easy task. How much, for instance, is the amount that should be awarded for a slap in the face? R10? R100 000? The court usually awards an amount having regard to the facts of a specific matter and comparative other cases.

Although calculating the amount of the damages could demand the most time and energy and be the most costly, there are other things that need to be proved in order to get a damages award.

The act that caused the injury

The person/s or firm/s or organization/s that caused the injury are usually accountable where the act was wrongfully ‹or unlawfully› AND negligently ‹or intentionally› committed. Damages have however been awarded even in matters where the perpetrator acted innocently.

The damages must not be too far away

The damages must be close enough for the court to find a causal connection. Another act or intervention after the initial injury could be the cause of the damages. In such a case the court could hold that the damages were caused by the person or institution that committed the later act.

DEFAMATION

The person or organization defamed, usually suffers damages as a result of the humiliation. The other aspects that could increase the value of the claim are specific damages, patrimonial loss and the insult to the dignity.

The South African Constitution and Bill of Rights has dignity and the protection thereof as a core value.

There is a long line of case law in South Africa where the amount of damages have been considered. The Supreme Court of Appeal has held that each case should be considered on its own facts as seen against the prevailing attitudes of our community. It is still a difficult call for any attorney or judicial officer.

There are certain factors which most courts refer to when making the award. These are the content of the defamatory matter, the nature of the publication, the extent of the publication, the standing of the plaintiff in society and the conduct of the defendant.

The content of a defamatory statement can be an accusation of lying or cheating or dishonesty or even a degrading description or racial insult. This does not necessarily mean that the award will be exceptionally high.

It would seem that the really large awards by our courts are those in matters where there was a real wide publication in the media about an important public person. But the lack of publication does not mean that no damages will be awarded. Damages for insult can be claimed even where there has been no publication. The amount awarded will however then be smaller.

Judges differ on how the factors should be considered. There are reported decisions which have regarded repetition of the defamation as a factor calling for a larger quantum of damages. There are other cases where the court has found that repetition does not make the defamation more serious.

A claimant should instruct an attorney with experience in the field of defamation damages in order to save time and costs of the research. This will prevent wasted energy in “re–inventing the wheel”.

Most defamation and insult cases take place in the Magistrates’ Court as the amount claimed is R100 000 or less. Should one claim more than this, the claim will have to be instituted in THE rEGIONAL mAGISTRATES COURT (*Up to R300'000) or for claims above that, in the High Court. One should first obtain a legal opinion or conduct careful research before claiming in the High Court, as this can lead to an adverse costs order if the amount eventually awarded is lower than R300 000. History has shown that the most awards are less than this amount.