By: Khlirendwe Ramalata, LindsayKeller associate 

Prior to the judgment by Mojapelo DJP and Vally J  in the case of Nkala and Others v Harmony Gold Mining Company Limited and Others 2016 (5) SA 240 (GJ), South African courts applied common law to cases involving someone who dies before recovering damages from a wrongdoer against whom they have instituted legal action. 

Common law dictated that when a person who has suffered as a result of the wrongful act of another dies before being able to recover damages from the wrongdoer, that person’s estate is only entitled to claim damages from the wrongdoer if at the time of death the injured person had instituted action against the wrongdoer and the stage of litis contestatio (close of pleadings) had been reached. 

This common law principle further dictated that the deceased’s estate would only be entitled to damages if the death was caused by the injury which the defendant is liable for. Today, we appreciate the Nkala case for recognising and addressing the need for developing common law in this area. 

Case law

The Nkala case involved mineworkers seeking compensation from the gold mining companies that employed them. The basis of their claim was that they contracted silicosis or tuberculosis because the companies failed to provide adequate preventative measures. The action involved the mineworkers’ dependants seeking compensation for general damages incurred by the applicants who passed away during the action. The case dealt with multiple legal issues, including class action, the law of delict, costs, litis contestatio, and the development of the common law.

Prior to judgment in this case, the issue of close of pleadings was a significant issue. If a plaintiff died before close of pleadings, their claim would be dismissed on the basis that it fell away at their death. But if the plaintiff passed away after pleadings were deemed to be closed, their claim would be transferred to the deceased’s estate, as per common law.

The Nkala case developed the common law to allow for claims for general damages to be transferred to the deceased’s estate even if pleadings had not reached the stage of litis contestatio when the plaintiff died. The process of finalising a delictual claim is lengthy as it involves collecting documents after consultation, drafting and issuing summons, waiting for the defendant’s plea and applying for a trial date. The plaintiff might pass away during this process. 

The two judges emphasised that this amendment to common law concerns claims for non-patrimonial or general damages, which include claims for pain and suffering, disfigurement, and loss of amenities of life. Such claims are relatively straightforward and do not call for the development of the common law. Special damages claims are difficult to calculate and should not be transferrable. 

The previous position regulating close of pleadings (in relation to the above-mentioned categories of damages) was articulated by the court as follows:

1. The executor can sue for any patrimonial loss the deceased suffered before his death as well as the funeral expenses which is a patrimonial loss suffered after death, and the dependants can sue for any patrimonial loss they themselves will suffer as a result of the premature death of their financial provider or breadwinner.
2. Neither can sue for any personal injury such as pain and suffering, loss of amenities of life or disfigurement (general damages) the deceased suffered prior to his death.

The court noted an exception to the rule: that where the deceased had already instituted action and the proceedings had reached the stage of litis contestatio before his death, and the claim was continued by the executor of his or her estate, “the claim for the personal injuries does not abate”.

The Nkala case judgment was applied in the case of Mosepele v Mokgethi and Another (393/2015) [2018] ZANWHC 66; 2019 (1) SACR 511 (NWM). In this case, the court held that the first defendant, as executrix of the deceased’s estate, is liable for the patrimonial and non-patrimonial damages instituted against the deceased’s estate by the plaintiff, who was assaulted and raped by the deceased before the latter’s death. The victim claimed general damages from the defendant who died before the claim could be finalised and the court allowed her to proceed with her claim against the deceased’s estate. This case suggests that as much as the deceased’s estate is entitled to make claims, it is equally liable for patrimonial and non-patrimonial damages lodged against it.