Delving deeper into the twilight state of general damages: The High Court considers the “twilight state” in the Du Preez Judgment

We previously discussed the Supreme Court of Appeal’s reference to the “twilight state” experienced by unconscious plaintiffs with severe brain injuries in our article "The SCA guiding us out of the “twilight state” of general damages".

In that article we examined the judgement of MEC for Health Gauteng Provincial Government v AAS obo CMNS 2025 ZASCA 91.

The recent High Court judgment of Du Preez NO obo S.D v MEC for Health (1631/2017) [2026] ZAECMKHC 12 (5 February 2026) provides an important contribution to the developing jurisprudence on the threshold for awarding general damages in cases involving plaintiffs with profound cognitive impairment. 

This case involved a minor who had suffered catastrophic neurological injuries at birth, resulting in severe cognitive and neurological disability. These included dystonic palsy, profound global development delay with intellectual disability, the absence of speech, an inability to sit without assistance, dysfunctional sphincter control, and significant swallowing difficulties. He required constant care and assistance in all aspects of daily living, including feeding and bathing, and was unable to communicate independently. Despite these limitations, evidence from the minor’s grandfather indicated that he retained some minimal level of responsiveness. He could recognise familiar people, appeared to enjoy television, would react emotionally to certain stimuli, and demonstrated awareness of basic needs such as hunger and discomfort. The defendant contended that, despite these limited responses, the minor was in fact in a vegetative or near vegetative state, and therefore an award for general damages would serve no meaningful or functional purpose – what the court in AAS referred to as being in a twilight state.

The Court was required to determine whether the minor could be considered permanently vegetative and, critically, what level of awareness is legally necessary for general damages to fulfil their purpose. The Court emphasised that it was bound by the principle of stare decisis and therefore carefully examined recent and binding case law on the purpose and availability of general damages. 

Central to the Court’s reasoning was the Supreme Court of Appeal’s decision of AAS. One will recall that in AAS the SCA held that any award of general damages, must serve a purpose. The SCA stated that the purpose of general damages is to “redress the deterioration of a highly personal legal interest that is attached to the body and personality of the claimant”. Moreover, that “in a case of loss of amenities of life, the purpose of an award is to offer some solatium or consolation to a claimant. If, because of the claimant’s unconsciousness, this cannot be achieved, there should be serious doubt whether the award should be made at all.”.

The SCA further cautioned against awarding general damages where the plaintiff’s needs had already been addressed in full under special damages, warning that such awards risk appearing compensatory while in reality serve no additional purpose. 

The High Court observed that the SCA decision in AAS follows the reasoning adopted in Collins v Administrator, Cape 1995 4 SA 73 (C) where the court held that “the function to be served by an award of damages is a relevant consideration in determining what damages should be awarded”. 

The High Court stated that it was more inclined to follow suit because it has been a long-established principle since Southern Insurance Association Ltd v Bailey N.O 1984 (1) SA 98 (A) that compensation for general damages should not be awarded where they serve no useful purpose.

The Court in Du Preez noted that although the minor was not strictly unconscious, the relevant experts confirmed that he suffered profound cognitive deficits and severe physical limitations. Experts agreed that while he could show distress, preference, or recognition, he had no capacity to communicate verbally, perform self care, or meaningfully engage with his environment.

The Court accepted that the minor displayed certain sporadic signs of awareness but concluded that these did not amount to meaningful cognitive function that would allow him to appreciate suffering, understand his circumstances, or derive any substantive benefit from a monetary award for general damages. The Court therefore found that general damages would serve no compensatory function, and that the minor’s limited responsiveness was insufficient to establish the level of awareness required for general damages to fulfil their purpose.

The court ultimately rejected the minor’s claim for general damages on the basis that it would serve no useful purpose as he could not benefit from the solatium that general damages are intended to provide. His condition placed him functionally in what earlier case law has described as a “cabbage” state, despite having twilight moments.  

Both the AAS and Du Preez judgements can be factually distinguishable from Manzimela v Road Accident Fund 2025 JDR 2252 (GJ). In that case, the Court awarded R4.5 million in general damages to a plaintiff who, although rendered quadriplegic and incontinent with long term psychological sequelae, retained full cognitive awareness. The court held that the plaintiff remained capable of experiencing loss and that a claim for general damages would fulfil its purpose. 

It is becoming very clear that the awarding of general damages is not as clear cut as what we would like to believe. It is also not as simple as distinguishing between conscious and unconscious plaintiffs. We must carefully navigate what AAS has termed “the twilight state”. We are reminded that the purpose of damages awards is “to redress the deterioration of a highly personal legal interest that is attached to the body and personality of the claimant”.  A failure to navigate this twilight state successfully may result in a failure to achieve this purpose.