The plaintiff is Mrs Anna van der Merwe, working in Tshwane city Council as receptionist, sues herein as legal heir of the deceased Mr Pieter van der Merwe.
The Defendant, Mr Simon Marota, is the Road Accident Fund, a juristic person established in terms of section 2 of the Road Accident Fund Act 56 of 1996 with legal capacity to institute action and to defend action brought against it, having its principal place of business, within the jurisdiction of the Honourable Court of South Africa.
Pursuant to the provisions of the Act, the Defendant is liable to handle Plaintiff’s claim and to compensate him for the injuries he sustained in the collision described in paragraph 4 below.
Plaintiff’s husband was driving his Volkswagen Polo car registered as HRH 567 GP with allowed speed and in careful manner on Golden Highway between Soweto and Vanderbijlpark. Suddenly a black Mercedes Benz car with registration number JBI 123 GP driven recklessly and speedily by the defendant hit the car of the plaintiff and results into a tragic motor vehicle road accident.
5.1 The aforesaid collision was caused solely by the negligence of the defendant, he has been negligent in one or more or all of the following respects:
5.1.1 He failed to keep a proper lookout;
5.1.2 He failed to keep the vehicle he was driving under proper or effective control;
5.1.3 He drove at an excessive speed in the circumstances;
5.1.4 He failed to give due consideration of the rights of other road users;
5.1.5 He failed to take any or adequate steps to avoid the accident when by the exercise of reasonable care and diligence he could and should have done so;
From the aforesaid collision the Plaintiff and her family suffered the following bodily injuries:
6.1. Head injury with loss of consciousness resulting death of plaintiff’s husband;
6.2. Whiplash injury and scratches to the face of plaintiff;
6.3. Trauma resulting early labour in pregnancy by plaintiff;
6.4. Head injury with fracture in left leg of Plaintiff’s daughter, Jenny;
6.5. Back problems of father-in-law deteriorated.
As a result of the aforesaid injuries sustained by the Plaintiff:
7.1. Her husband went into coma, and died after 6 months medical treatment without gaining consciousness;
7.2. She discharged after 30 days of medical treatment for early labour;
7.3. Medical assistance needed for her baby born with deformities for the rest of his life.
7.4. Surgery for back deterioration took 6 weeks for her father-in-law;
7.5. Medical expenses for Jenny’s treatment for 3 months.
7.6. She had paid for the psychiatric counselling of 12 months fees for Jenny who faced trauma due to this accident.
As a result of aforesaid collision and the injuries sustained by the Plaintiff, she has suffered patrimonial as well as non-patrimonial damages in the amount of R1000000 that is made up as follows as per the rule of “once and for all” (Evins v Shield Insurance Co. Ltd., 1980):
8.1. Medical bills of Pieter R200000
8.2. Medical bills of Anna, Willem and Jenny R600000
The amount claimed in respect of general damages is a global figure. It is not reasonably practicable to apportion to each of the sub-headings damages or a specified portion of the amount claimed.
TOTAL AMOUNT: R1200000
The provisions of Matrimonial Property Act, 1984 Section 18(b), constitutes the principles included the including damages of patrimonial loss. The another claim that the plaintiff is entitle to get is ruled by the section 17(1) of Road Accident Fund Act 1996 (gov.za, 1996) and the section 35(1) of the Compensation of Occupational Injuries and Diseases Act 1993 (Southern Insurance Association Ltd v Bailey, 2021).
Despite demand the Defendant failed, neglected or refused to pay the sum of R1200000.
WHEREFORE Plaintiff prays for:
Signed:
ATTORNEYS FOR PLAINTIFF:
Address for attorneys
Signed:
ATTORNEYS FOR DEFENDANT
Causes of actions raised from the evidences and facts of a case that proves the faults of the defendant. The Plaintiff has to prove the elements of the cause of action due to which the accident happened. In the given case, the causes of action raised due to the negligence part of the defendant (Visser, et al., 2012). The Road Accident Fund Act 56, 1996 has the guidelines to compensate the person who suffered bodily as well as mental injury in a motor vehicle accident due to the defendant’s cause of action (Klopper, 2017). Section 17(1)(a) of Road Accident Fund stated that the fund shall be raised in the case where the driver of the motor vehicle has been established. This section states that the driver shall be liable to pay the compensation to the third party for the damages made by him for any bodily injury or mental trauma case for the loss of any family member (gov.za, 1996).
The prescribed period for lodging a case, mentioned in Prescription Act 68 of 1969 stated the period of 3 years for lodging a case. Whereas, in motor vehicle road accident cases, the prescribed period shall applied according to guidelines given in the Road Accident Fund Act 56 of 1996. In the Gabuza case the prescribed period for lodging the fund was determined for bodily injuries as patrimonial damages as 3 years [Gabuza vs RAF, (2018)(ZAGPPHC) 634, 2020(2) SA 228 ]. The Masindi v RAF case mentioned the prescribed period of 5 years from the date of the accident where, the plaintiff suffered the future losses. [Masindi vs RAF,(2018)(ZASCA)94].
The motor vehicle accident between Mercedes Benz (defendant’s car) and Volkswagen Polo (Plaintiff’s car) clashed as the driver of Mercedes Benz, Simon Marota was driving the car rashly and clashed Jenny father’s car. The cause of action arises when Mr Simon due to his negligence clashed the car and causes patrimonial and non-patrimonial damages to her. Jenny had suffered head injuries and her left leg had broken because of this accident. She also lost her father in this accident due to which she had faced mental trauma that her studies deteriorates that destroys her pre-accidental aim of studying law in Stadio. According to the above mentioned rule of 17(1)(a), Jenny can claim her present and future career as well as physical losses from Mr Simon. Lefa Nkosi is a prime witness of the case. He also captured the video of Mr Simon negligently drove the car and cause the accident. And to destroy the evidence Mr Simon broke the witness’s mobile phone. The negligence was on the part of Mr Simon and he deemed to be liable for the causes of action raised for Jenny.
Conclusion
Jenny faced the mental trauma and bodily injuries from the accident resulted by the negligence of Mr Simon. Hence, the causes of action raised against him for Jenny shall include, firstly the losses suffered due to the bodily injuries, then the mental trauma she had faced and had to take psychiatric counselling because of this accident and lastly, the future losses she had faced in her studies when her grades deteriorates due to this trauma.
Is Petros performed breach of contract.
Whether Ntokozo is entitle to get the compensation under contract law?
In South Africa, the guidelines of Roman-Dutch Law has followed regarding contractual matters. With these guidelines, the ruling of common law applied in South Africa to decide the particulars of breach of contract. The case of ISEP Structural Engineering and Plating (Pty) Ltd v Inland Exploration (Pty) Ltd (1981) 4 SA (A) explained the different scenarios of damages. This case enlighten the concepts of damages and specific performance. Reyneke, Gerke and Collins are the subsequent cases in which the Honourable Supreme Court decides the matters on specific damages (patrimonial damages) [Reyneke v Mutual & Federal Insurance Co. Ltd, (1991) (3)SA 412 ], [Gerke NO v Parity Insurance Co Ltd, (1966) (3) SA 484], [Collins v Administrator, Cape, (1995)(4) SA 73. A party of a contract can claim the damages under breach of contract when one of the contracting party does not perform his/her obligation or performance is defective or incomplete. The principle of mora debitories applied when the breach of contract took place due to the delay of the debtor/seller (Klopper, 2017). The breach of positive malperformance held in the cases where, a party completes his part of performance in defective or incomplete manner (ru.ac.za, 2012).
In South African Law, the term of latent defect had explained. It is mandatory for a seller to maintain the quality of the product while selling it as prescribed by Naturalia. Naturalia is a concept where the law imposed the duty of the seller to provide warranty against latent defects. (Neethling & Potgieter, 2011). South African Law provides different types of remedies to recover the losses suffered by the party to the contract due the breach of contract performed by another party. The party can claim contractual damages, specific performance, or cancellation of contract (Treital, 2020).
The Jaguar experts confirmed the defect before the delivery of the car. This established that the performance of Petros was defective in nature and amount to the breach of positive malperformance. Petros delayed the delivery of the car to 20th December 2020 and then delivered a defective car to Ntokozo. This lead to the breach of contract on the part of Petros. As the car is a limited edition, it cannot be availed in exchange and Ntokozo is entitle to get the compensation against his losses. Ntokozo suffered patrimonial losses, as he has to repair his car and had taken a cab while going to a family function. The above cases provide guidelines for the damages born by Ntokozo due to the defective performance of Petros. Applying the above rule of Naturalia, Petros has a duty to sell the car without any defect with supreme quality.
Ntokozo cannot claim the specific performance as remedy because his car is limited in nature and cannot be redeemed by the seller. In the given case, Ntokozo may either demand for repairing losses or can cancel the contract by returning the car and receiving full payment in return.
Conclusion
Petros made a breach of contract under mora debitories and positive malperformance towards Ntokozo. Hence. Ntokozo is entitle get patrimonial damages as repairing costs of Jaguar as well as the transportation costs (Cab charges). The losses suffered by him also includes the losses on the resale of the car. Ntokozo either claim for the compensation for the losses or can claim the remedy of cancellation of contract by returning the car and get the refund of the payment.
How to quantify the claimed damages by Ntokozo?
The rule of ‘once and for all’ states that all the damages has to be quantify in monetary terms by evaluating the losses suffered by the contracting party [Evins v Shield Insurance Co. Ltd., (1980) (2) SA 814 (A)]. The Evins v Shield case clarify the OAFA rule by determining the amount of prospective losses. The prospective losses include the patrimonial as well as no-patrimonial losses suffered by the plaintiff. Both kind of damages has to be quantify to claim the damages in monetary terms. The rule only tells to determine the liability to pay losses and does not include the method to quantify the damages paid by the defendant. Moreover, the plaintiff cannot claim more than one damages for one cause of action. To quantify the damages it is essential to identify them first. The rule also states that, to calculate the damages it is essential to evaluate the prospective losses borne by the plaintiff (Mukheibir, 2019).
There are two methods included to calculate the damages: first is ‘sum formula’ and the second one is ‘somehow or other formula’. The patrimonial damages suffered by the plaintiff has to determine by the sum formula, whereas, the pain and sufferings of a person can be calculated by somehow or other formula (Millard, 2007).
The case of [Standard Chartered Bank of Canada v Nedperm Bank Ltd, (1994) ZASCA 146 (4) SA 747], provides the detailing to assess the legal amount of the damages by evaluating the reasonable prediction of losses suffered by the plaintiff. The calculation as per this case has to be reasonable and reliable.
[Allen v Scheibert, (2015) ZAWCHC 36] case granted an outline to quantify the damages suffered by the plaintiff in delict. It has to be established that whether the rights of the party had maliciously violated by the other party and it is a breach of contract that lead to the losses of the party (Okpaluba, n.d.).
The OAFA rule suggests determining the monetary value of the prospective losses occurred due to delict or breach of contract. The mentioned case laws gave an idea to quantify the amount of the losses suffered by a plaintiff. The rule also states that the plaintiff cannot claim multiple times for a single claim. To quantify the damages, Ntokozo has to apply the sum formula for the patrimonial damages he suffered for example the repairing charges, the travelling charges and other financial losses he suffered. Then he has to quantify the non-patrimonial damages by somehow or other formula. Ntokozo suffered the repairing damages, transportation damages and the non-patrimonial damages including mental agony caused for delay in delivery and then defective car delivery.
Conclusion
The calculation as per the above rule and case laws concluded shall be as follows:
Loss on resale price 900000
Repairing charges 250000
Travelling cost (Cab) 2500
Mental agony for humiliation 25000
Hence, Ntokozo is entitle to claim the damages of R1177500 in total from Petros.
References
Allen v Scheibert (2015) ZAWCHC 36.
Christie, R. H., 2003. The once and for all rule and contractual damages. South African Law of Journal, 120(3), p. 445.
Collins v Administrator, Cape (1995) (4) SA 73 .
Evins v Shield Insurance Co. Ltd. (1980) (2) SA 814 (A).
Gabuza vs RAF (2018) ZAGPPHC.
Gauteng v DZ obo WZ (2017) Member of the Executive Council for Health and Social Development, ZACC 37.
Gerke NO v Parity Insurance Co Ltd (1966) (3) SA 484.
gov.za, 1996. Republic of South Africa, Government Gazette. [Online]
Available at: https://www.transport.gov.za/documents/11623/114660/RoadAccidentFundAct_56_1996.pdf/a5a496d3-8da6-4c0c-bdb8-8db6d2fe581f
[Accessed 2022].
ISEP Structural Engineering and Plating (Pty) Ltd v Inland Exploration (Pty) Ltd (1981) 4 SA (A).
Klopper, H., 2017. Damages. s.l.:Lexis Nexis South Africa.
Klopper, H. B., 2017. Damages. s.l.:Lexis Nexis, South Africa.
Masindi vs RAF (2018) ZASCA 94.
Millard, D., 2007. Loss of earning capacity: The difference between the sum-formula approach and the somehow-or-other approach. JOURNAL OF UWC FACULTY OF LAW, 11(1).
Mukheibir, A., 2019. (Mis)understanding the once-and-for-all rule – Member of The Executive Council for Health and Social Development, Gauteng v DZ obo WZ 2018 (1) SA 335 (CC). Sabinet African Journal, 40(3).
Neethling, J. & Potgieter, J., 2011. Defamation of a Corporation: Aquilian Action for Patrimonial (Special) Damages and Actio Iniuriarum for Non-Patrimonial (General) Damages. Journal of Contemporary Roman-Dutch Law, Volume 75, pp. 304-312.
Okpaluba, C., n.d. Quantification of damages for malicious prosecution: A comparative analysis of recent South African and Commonwealth case law (3). South African Journal of Criminal Justice, 32(1), pp. 28-51.
Reyneke v Mutual & Federal Insurance Co. Ltd (1991) (3) SA 412.
ru.ac.za, 2012. CONTRACT B – 2012. [Online]
Available at: https://www.ru.ac.za/media/rhodesuniversity/content/law/documents/10-students/2012courseoutlines/Law_of_Contract_B.pdf
[Accessed 2022].
Southern Insurance Association Ltd v Bailey (2021) All SA 360.
Standard Chartered Bank of Canada v Nedperm Bank Ltd (1994) ZASCA 146 (4) SA 747.
Treital, G. H., 2020. Contracts in general, Chapter 16: Remedies for Breach of Contract. s.l.:De Gruyter.
Visser, P. J., Potgieter, J. M., Steynberg, L. & Floyd, . T. . B., 2012. Law of Damages. 2 ed. Juta: Claremount.
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