This subsection of paragraph three will discuss firstly the definition of patrimonial loss as a subdivision of damage, secondly, the concept of an expectation and finally, the notion of interest.242
Patrimonial loss (as a subdivision of damage) is defined as the diminution in the utility of a patrimonial interest in satisfying the recognized needs of the person entitled to such interest.243 It may also be defined as the loss or reduction in value of a positive asset in someone’s patrimony or the creation or increase of a negative element of his patrimony, such as a patrimonial debt.244 An expectation of benefits, as in the case of an expectation for a social assistance grant, is the legally recognized expectation of a person to acquire patrimonial rights or benefits in the future (through which his patrimony will be enhanced) or the recognized expectation that his patrimony will not diminish. Such an expectation may be so ‘convincing’ that the law recognizes and protects it by awarding damages if it has been infringed.245
An expectation must meet certain general requirements before it can be said to form part of someone’s estate or patrimony, which are:
2401985 1 SA 475 (A) at 500.
241Neethling, et al Op cit note 237 at 11.
242Interest here is referred to as the compensation provided to an individual who has foregone a benefit due to an infringement of his or right. The writer is not referring to interest as interesse or a patrimonial interest.
243Neethling, et al Op cit note 237 at 42.
244Ibid.
245Visser, and Potgieter Op cit note 215 at 48.
Firstly, that the law must in principle recognize the type of expectation as worthy of protection; secondly, that there must be a sufficient degree of probability or possibility that the expectation would be realized; thirdly, that the expectation must have a monetary value; and fourthly, that the expectation, though recognized in principle, must not contain an illegal element.246
Interest is relevant in the law of damages in the discounting of damage for prospective loss and as a measure of damages which is sustained on account of the non-possession of money. The present discussion is mainly concerned with damage caused by a delay in the possession of ‘damages’ as an amount of money which is due to the plaintiff. In general, a debtor, in the absence of an agreement to the contrary, is required to pay interest on the amount of money owed by him from the moment he is in mora (delay). This also applies in regard to a liquidated amount of damages or satisfaction and the interest becomes part of the compensation. In a claim for unliquidated damages247the defendant is not liable to pay interest in the absence of an agreement as to such quantum unless the amount has been assessed. If the damage is capable of prompt and ready ascertainment and of speedy proof, such damage is liquidated and interest will commence to run from the moment of delay.248
In the meantime the legislature has stepped in by providing section 2A of the Prescribed Rate of Interest Act 55 of 1975, which provides for the granting of mora interest on an unliquidated debt which at common law was not possible until the debt had been liquidated either by way of an agreement between the parties or by a court of law or arbitrator. Section 2A(2)(a) of this Act provides that subject to any other agreement between the parties the interest contemplated in subsection (1) shall run from the date on which payment of the debt is claimed by the service on the debtor of a demand or summons, whichever date is the earlier. In terms of Section 2A(5) of the Act a court of law may make such order as appears just in respect of the payment of interest on an unliquidated debt, the rate at which interest shall accrue and the date from which interest shall run.249
246Id at 49 -50.
247Where the precise amount is to be determined through a long and complex investigation.
248Visser, and Potgieter Op cit note 215 at 164 – 165.
249Prescribed Rate of Interest Act 55 of 1975.
3.4. CONCLUSION
From the uncodified nature of the South African civil law, based on Roman Dutch law and English law, arises the benefit of flexibility, a legal system, which allows for flexibility regards:
a. Interests that are to be legally protected and consequently b. Those parties to whom damages can be awarded
Development of the law of delict, especially the Aquilian action, in relation to the expansion of the base of potential claimants has been incremental and responsive to the changes in the boni mores of society. This flexibility and development potential is at the core of the generalized approach to damages explored above.
This Chapter has explored how an individual’s legally recognized expectation of a benefit (patrimonial) is protected by the awarding of damages in the form of interest should such expectation be infringed. In this regard interest is regulated by the Prescribed Rate of Interest Act.250
The generalized approach also forms the foundation or starting point of the new approach to damages in the constitutional era of South African law to be discussed in the next Chapter.
250Act 55 of 1975.
CHAPTER 4
THE CONCEPTS OF CONSTITUTIONAL RIGHTS AND DAMAGES IN