3
HH 40-13
HC 4187/12
„Where damages can be assessed with exact mathematical precision, a plaintiff is
expected to adduce sufficient evidence to meet this requirement. Where, as is the case
here, this cannot be done, the plaintiff must lead such evidence as is available to it
(but of adequate sufficiency) so as to enable the court to quantify his damage to make
an appropriate award in his favour. The court must not be faced with an exercise in
guesswork; what is required of a plaintiff is that he should put before the court enough
evidence from which it can, albeit with difficulty, compensate him by an award of
money as a fair approximation of his mathematically unquantifiable loss.‟ …
There must of course be sufficient evidence before the court for it to be in a position
to make a proper assessment of damages, for
„.. it is not competent for a court to embark upon conjecture in assessing damages
where there is no factual basis in evidence, or an inadequate factual basis, for an
assessment, and it is not competent to award an arbitrary approximation of damages to
a plaintiff who has failed to produce available evidence upon which a proper
assessment of the loss could have been made‟:
Per ROSE INNES AJ in Monumental Art Co v Kenston Pharmacy (Pty) Ltd 1976(2)
SA 111(C) at 118E. See also Mkwananzi v van der Merwe & Anor 1970(1) SA
609(A) at 630.
Thus where evidence is available to a plaintiff to place before the court to assist it in
quantifying damages, and this is not produced, so that it is impossible for the court to
do so, or there is no, or quite insufficient evidence which can be produced by an
unfortunate plaintiff, he must fail and the defendant must be absolved from the
instance…..‟.
In The Quantum of Damages in Bodily and Fatal Injury cases 3 ed by Corbert,
Buchanan & Gauntlett, the learned authors state as follows at p 99:
In the case of damages which are capable of exact mathematical computation, such as
for example medical and hospital expenses, proper evidence establishing the loss and
substantiating the precise amount of the claim must be tendered. Where, on the other
hand, mathematical proof of the damages suffered is in the nature of things
impossible, then provided that there is evidence that pecuniary damage in this regard
has been suffered, the court must estimate the amount of the damages as best as it can
on the evidence available and the plaintiff cannot be non-suited because the damages
cannot be exactly computed. However, the application of this principle is dependent
upon the plaintiff having adduced the best evidence available to him. Where he has
not done so and the difficulties in assessing the quantum of damages are due to the
manner in which he has conducted his case, then the court is justified in ordering, and
does order absolution from the instance”
What is coming out of the above authorities as quoted by GARWE JA in
Matthew Mbandire supra is that a plaintiff must provide a factual basis, in evidence, that he
suffered pecuniary damage. Once that is established, the court can then estimate the amount