THE LAW OF DELICT AND PUNITIVE DAMAGES

Abstract

In two recent case-law dicta, one of the Constitutional Court, it was made perfectly clear that there is no room in the South African law of delict for awarding punitive damages. In Dikoko v Mokhatla (2006 6 SA 235 (CC) 263) Mokgoro J expressed it as follows:
“Equity in determining a damages award for defamation is ... an important consideration in the context of the purpose of a damages award, aptly expressed in Lynch [1929 TPD 974 at 978] as solace to a plaintiff's wounded feelings and not to penalise or deter people from doing what the defendant has done. Even if a compensatory award may have a deterrent effect, its purpose is not to punish. Clearly, punishment and deterrence are functions of the criminal law. Not the law of delict ... In our law a damages award therefore
does not serve to punish for the act of defamation. It principally aims to serve as compensation for damage caused by the defamation, vindicating the victim's dignity, reputation and integrity. Alternatively, it serves to console.” 
A similar approach is also apparent from Seymour v Minister of Safety and Security (2006 5 SA 495 (W) 500), where Willis J stated unequivocally that it “is trite that the primary function of awards for damages under the actio injuriarum is to compensate the victim for his or her injuriae, and is not exemplary”.
It is, however, debatable whether this view accurately reflects the position in positive law, or, if it does, whether the de lege ferenda approach in our law should not be different. Under South African law there is consensus that the actio legis Aquiliae, in terms of which patrimonial damages may be claimed, and the action for pain and suffering aimed at non-patrimonial damages for bodily injuries, have purely compensatory functions - punitive damages are thus completely out of the question. But not so in the case of the actio iniuriarum which is traditionally directed at solatium (solace money) or (personal) satisfaction (sentimental damages) for an iniuria – that is, the wrongful and intentional infringement of an interest of personality.