Enkele opmerkinge oor die begrip skade in die Suid-Afrikaanse privaatreg

Inaugural lecture--Faculty of Law, Rand Afrikaans University, 16 October 1974@@In this contribution the concept of damage in the South African Law is examined on an analytical rather than historical or comparative basis. The concept of damage involves two elements. the one of a causal and the other of a proprietary nature. Damage is seen as a particular type of consequence resulting from the occurrence of an event which is by nature uncertain. The nature of such consequences is examined and possible detrimental consequences are arranged under five headings. They all have in common that a person's legal estate is thereby diminished. The term 'estate' is understood to mean either a person's present or future estate. The present estate consists of the various proprietary rights, namely personal and real rights and rights of immaterial property. The future estate on the other hand is a description for the proprietary rights which will be acquired by a person. A diminution of the future estate takes place if a legally justified expectation (which of course cannot as such qualify as a proprietary right) of a proprietary right is thwarted by the happening of an event. Traditionally a method of differnce is employed as a test for damage, i.e. a comparison is made between the state of a person's estate before and the state of his estate after the occurrence of a relevant event. It is however suggested that this approach is not satisfactory since it fails to distinguish between causation and damage in so far that it embodies the so-called conditio sine qua non test for cause and effect. Damage should therefore rather be ascertained by judging the known or supposed results of an event to establish whether they fall under one or more of the headings indicated specifically for this purpose. There is in conclusion no evidence of a need in the South African Law to adapt the concept of damage each time it is applied in another branch of the law.