Contractual Damages in South African Law

Legal Principles impacting Contractual Damages

The well-known principle in the legal profession providing that contracts freely entered by parties with capacity to do so are to be enforced (Pacta Sunt Servanda) has an influence on the determination of contractual damages in that the damages are intended to restore a plaintiff’s financial position to that which would have existed had the defendant performed its duties in full.  This is known as the plaintiff’s positive or expectation interest.

What must a Plaintiff prove in a claim for Contractual Damages?

In South African courts, if you wish to claim contractual damages, you are to prove:

  • the contract;
  • breach or repudiation;
  • damages suffered by the party alleging same and instituting the legal action;
  • causal link between the damages and the breach;
  • that the loss was not too remote.[1]

A plaintiff is only entitled to recover such loss as he or she can prove.  The plaintiff cannot use the legal proceedings as a fact finding mission to substantiate a claim for contractual damages. [2]

Nature of Contractual Damages

With limited exceptions, pertaining to damages for inconvenience which flows directly from the breach of the contract and breaches which are also delicts, contractual damages are not compensatory in nature.  Accordingly one cannot for instance recover damages for pain and suffering (non-patrimonial loss). [3]

General and Special Damages

Ordinarily a breach of a contract will establish the basis of recovering general damages i.e. those that flow naturally from the breach of contract and which are not remote.  For example for the late payment of sums owing to a plaintiff he or she can claim interest on the sum owing.

Special Damages which do not flow naturally from the breach, can only be claimed in contractual damages claims where the plaintiff can prove that there were circumstances at the conclusion of the contract which establish that it was within the contemplation of the parties that these damages would be recoverable. 

Date when damages are ascertained from

Damages are ordinarily assessed at the time of the breach or in the case of repudiation at date of repudiation where there is a date set for performance or if no fixed date for performance then the acceptance of repudiation.

Limitation on rights to recover contractual damages

It is quite common for a contract to regulate what type of damages are recoverable with special damages often being excluded in part or in full.

Further the parties may include exemption clauses in respect of damages flowing from specific types of events and conduct.

However in certain respects these exemption clauses may be tested against legislation such as certain provisions of the Consumer Protection Act 68 of 2008 which seek to enforce rights to fair, just and reasonable contract terms for consumers protect by that Act.

South African courts overtime have held that exemption clauses :

  • cannot exempt a party for damages for intentional non-performance of its duties in terms of a contract;
  • can exempt a party for damages by unintentionally delivering goods of an incorrect description;
  • may if sufficiently clear exempt a party from liability in respect of a fundamental breach of a contract;
  • exempt a party for liability of his or her own negligence conduct;
  • may not exempt a party’s liability from his or her own fraudulent conduct
  • seeking to enforce conduct which is against public policy will not be upheld.[4]

Plaintiff’s Duty to Mitigate Damages

The plaintiff has a duty to mitigate its damages however the plaintiff need not allege that it has in fact taken steps to limits its damages.  It is for the defendant to allege that the plaintiff has failed to mitigate its damages to the extent that the plaintiff has failed to do what a reasonable man would have done in the circumstances.

Conclusion

Different types of contracts can give rise to different types of recourse in the event of a breach.  The contract may also regulate what types of damages are recoverable and set out if any limitations are applicable to the damages claimable.

At the time of investigation of the breach and in determining whether to cancel the contract based on breach or to maintain the contract in place and claim specific performance it is important to consider the law of damages in relation to contracts, the contractual terms and the client’s best interests, expectations and particular set of circumstances.

Should you require assistance in these and other matters in the field of Contract Law Boogaard Attorneys can service Clients throughout South Africa remotely and can accommodate on site visits at our practice in Fourways or attend to client in various areas in Johannesburg North including Bryanston, Dainfern, Morningside, Midrand, Rivonia and Sandton to name a few.

By L Boogaard

Boogaard Attorneys

22 March 2022

Bibliography

GB Bradfield, Christie’s Law of Contract in South Africa (7th Edition, 2016 Lexis Nexis)

Harms, Amler’s Precedents and Pleadings (7th Edition, 2009, Lexis Nexis)

Klopper, HB, Damages (1st Edition, 2017 Lexis Nexis)

Legislation

Consumer Protection Act 68 of 2008


[1] Harms, Amler’s Precedents and Pleadings (7th Edition, 2009, Lexis Nexis)

[2] Ibid

[3] Klopper, HB, Damages (1st Edition, 2017 Lexis Nexis)

[4] GB Bradfield, Christie’s Law of Contract in South Africa (7th Edition, 2016 Lexis Nexis)

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