SPECIAL EDITION: LEGAL HISTORY

 

Constitutional Damages - a Stagnant or a Changing Landscape?

 

 

A Mukheibir

Nelson Mandela University, South Africa. Email: andre.mukheibir@mandela.ac.za

 

 

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ABSTRACT

Section 38 of the Constitution of the Republic of South Africa, 1996 provides for appropriate relief where a right in the Bill of Rights has been infringed. In Fose v Minister of Safety and Security 1997 3 SA 786 (CC) the Constitutional Court raised the question of "appropriate relief" with reference to section 7(4)(a) of the Constitution of the Republic of South Africa Act 200 of 1993. In the Fose case the plaintiff claimed "punitive constitutional damages" together with delictual damages. While the court did not rule out an award for damages for the infringement, it did not award constitutional damages in that instance, specifically because the plaintiff claimed "punitive constitutional damages". The Fose case has been followed by most of the cases heard in the years after Fose was decided. In most instances where constitutional damages were claimed the courts, following Fose, have not awarded constitutional damages where delictual damages were available. The rules relating to constitutional damages are casuistic and it is submitted that the principle of subsidiarity could form a foundational principle to solve the problem of casuistry in this regard.

Keywords: Appropriate relief; constitutional damages; delictual damages; principle of subsidiarity.

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1 Introduction

Section 38 of the Bill of Rights provides as follows:

Anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights.¹

The question of what constitutes "appropriate relief" was first raised in Fose v Minister of Safety and Security² with reference to section 7(4)(a) of the interim Constitution.³ In that instance constitutional damages were claimed for the first time.⁴ In the decades since Fose a number of cases were decided in which the plaintiffs claimed constitutional damages; in some constitutional damages were awarded and in others not, the courts in most of those instances having opted for delictual damages.⁵ In his unpublished doctoral thesis Kika states that "[t]he co-existence of constitutional damages with delictual damages is one of the most contentious issues in the constitutional damages debate."⁶

Insofar as the availability of constitutional damages is concerned, it has been noted that "[d]ecisions of our courts are not coherent on the question when an award of constitutional damages should be approved by a court ..."⁷. The availability of constitutional damages has also been described as having to "necessarily be determined casuistically".⁸

The aim of this article is to explore the availability of constitutional damages in the decades after Fose, with a special focus on two recent Constitutional Court cases, and to establish whether there has indeed been any change in the availability of this remedy.⁹ The question of what constitutes "appropriate relief" will also be explored.

Reference will be made to the principle of subsidiarity insofar as it impacts on the availability of constitutional damages and whether it can be a foundational principle to solve the question of casuistry.

 

2 Constitutional damages - Fose to Ngomane

2.1 Fose v Minister of Safety and Security¹⁰

Fose sued the Minister of Safety and Security for damages as a result of harm which he sustained arising out of a series of assaults alleged to have been perpetrated by members of the South African Police Force.¹¹ The plaintiff alleged that a number of his constitutional rights¹² had been infringed and thus claimed delictual damages; in addition he claimed "punitive constitutional damages".¹³ The Minister raised an exception to the claim of constitutional damages, on the following grounds:¹⁴

(a) an action for damages in the nature of constitutional damages does not exist in law; and/or

(b) an order for the payment of damages does not qualify as appropriate relief as contemplated in Section 7(4) (a) of the Constitution.

The High Court¹⁵ upheld the exception but allowed leave to appeal to the Constitutional Court.¹⁶ Van Schalkwyk J held, quoting Esselen v Argus Printing and Publishing Co Ltd¹⁷ that punishment was the function of criminal law.¹⁸ Furthermore, while there was no delict of torture, the delictual claim could be brought within the ambit of assault.¹⁹

The Constitutional Court per Ackerman J held that in these circumstances (the fact that that plaintiff would be entitled to a "substantial sum of [delictual] damages", as well as the "problems inherent in punitive constitutional damages") the plaintiff was not entitled to recover punitive constitutional damages.²⁰

The court recognised that appropriate relief in section 7(4) could include a declaration of rights, an interdict, and a mandamus "or such other relief as may be required to ensure that the rights enshrined in the Constitution are protected and may be enforced."²¹ Ackerman J noted that the courts may have to fashion new remedies in the future to ensure the enforcement and protection of constitutional rights.²²

The court moreover confirmed that it was concerned only with the rights infringed in the present case and only with regard to the claim for constitutional damages, and not to decide on the matter of whether the remedy of constitutional damages generally exists in law.²³

The court went into the matter of punitive and constitutional damages in considerable detail, discussing comparative law²⁴ and noting that there were differences between these foreign jurisdictions and South African law.²⁵

In spite of these differences, Ackermann J held that

[T]here is no reason in principle why 'appropriate relief' should not include an award of damages, where such an award is necessary to protect and enforce Chapter 3 rights. Such awards are made to compensate persons who have suffered loss as a result of the breach of a statutory right if, on a proper construction of the statute in question, it was the legislature's intention that such damages should be payable and it would be strange if damages could not be claimed for, at least, loss occasioned by the breach of a right vested in the claimant by the Supreme law.²⁶

Ackermann furthermore pointed out that the common law of delict is flexible and can be developed with due regard to the spirit, purport and objects of the Bill of Rights.²⁷

Regarding punitive damages Ackermann J, referring to Van der Walt, held that it "is for criminal law to punish and thereby discourage such conduct."²⁸

He noted that, for various reasons, a constitutional remedy which had punishment or deterrence as its purpose would, even for the most ardent supporters thereof, not be acceptable, as the remedy contained various "anomalous and unsatisfactory features".²⁹ Some reasons are mentioned here:³⁰

(a) it provides an unjustifiable windfall to the plaintiff;

(b) punitive damages exact punishment without the protection provided by the criminal justice system and could lead to "multiple sanctioning"; and

(c) where the defendant is the government, it is almost inevitable that the costs will be shifted onto the "public at large".

With regard to (c) Ackermann J added that there were "multifarious demands on the public purse and the machinery of government that flow from the urgent need for economic and social reform."³¹ Punitive damages would not be appropriate and these resources could be better used, particularly in a country with scare resources, and where the plaintiffs had already been fully compensated.³²

The court thus upheld the exception and dismissed the plaintiff's appeal regarding the claim for constitutional punitive damages.³³

Zitzke argues as follows:³⁴

Hidden in Fose is a vote of support for the principle of subsidiarity. If a constitutional right has been infringed and there is no legislation, the common law is relied on. Only if the common law then fails to provide adequate relief will a litigant be able to claim constitutional damages. Only once a litigant has reached the end of the 'sources rope' can constitutional damages be claimed. (Own emphasis)

The influence of Fose continues to permeate case law, as will become evident in the case discussions below.

2.2 Olitzki Property Holdings v State Tender Board³⁵

The facts of the case are briefly as follows:³⁶

The provincial government of Gauteng planned on moving from Pretoria to Johannesburg and invited tenders for office accommodation to house the various departments. The plaintiff, having obtained an option to buy a building, tendered to provide office space. The tender was not accepted. The plaintiff thereafter sued the state tender board and the provincial government for damages, alleging that the state tender board and the provincial government had misconducted themselves. The damages claimed by the plaintiff were for losses incurred resulting from the defendant's unlawful conduct. The plaintiff claimed for the loss of profits it would have made from rentals had the tender been successful.

The Supreme Court of Appeal had two questions to consider, namely³⁷ (1) whether the provision dealing with procurement administration in terms of the 1993 Constitution³⁸ created a right to claim damages for lost profit by a party who claimed to have suffered loss as a result of its infringement, and (2) whether constitutional damages could be claimed for loss of profits.

The High Court, per Eloff JP, held that both claims were unsustainable in law.³⁹ For the purposes of this article only claim B (constitutional damages) will be discussed.

On appeal to the Supreme Court of Appeal the plaintiff claimed that the profit it lost must be awarded to it in order to assert the Constitution.⁴⁰ Cameron JA held that the judgment in Fose "casts an oblique but significant shadow across the plaintiff's path."⁴¹ As pointed out by the High Court, the plaintiff was not in terms of the common law entitled to a right to be awarded the tender; the common law remedy of review was available should the plaintiff have been aggrieved by the award.⁴²

Cameron JA noted that the plaintiff was in effect claiming a windfall, "and does so on the premise that its gain has also the public dimension of constitutional vindication."⁴³ Cameron JA further noted with reference to Fose that this for this award to have any effect on public officials they would have to be substantial, thus increasing the windfall and perpetuating the anomaly, and in addition it raised policy questions such as the fact that it strained the public purse.⁴⁴

Cameron JA found that these "constitute powerful reasons of policy" that mitigated against the "constitutional entitlement to damages" in the terms the plaintiff claimed.⁴⁵ Cameron JA furthermore stated that it was not necessary to decide that loss of profits could never be claimed. In this case the question of out-of-pocket expenses was not before the court. Nevertheless, Cameron JA concluded that for the lost profit claimed by the plaintiff a constitutional remedy would not be appropriate.⁴⁶

The plaintiff's claim was therefore dismissed.⁴⁷

2.3 President of the Republic of South Africa v Modderklip Boerdery (Pty) Ltd⁴⁸

This case was concerned with an application for leave to appeal against a decision of the Supreme Court of Appeal.⁴⁹ The Court ordered the State to compensate the respondent, Modderklip, for the violation of its property rights in terms of section 25(2) read with section 7(2)(3) of the Constitution. Furthermore, the equality rights under sections 9(1)5 and 9(2)6 of Modderklip had also been violated. In addition the rights of unlawful occupiers of the Modderklip property in terms of section 26 had also been violated.⁵⁰

Modderklip farm had been experiencing an influx of unlawful dwellers over a period of time. Reporting them to the police for arrest and prosecution was futile, as they would return as soon as they had been released from prison. Modderklip approached the municipality, but to no avail. At one stage there were 80 000 dwellers and it was impossible to move them.

The Supreme Court of Appeal awarded constitutional damages to Modderklip.⁵¹ It held that courts "have a duty to mould an order that will provide effective relief to those affected by a constitutional breach." It went further by stating

The only appropriate relief that, in the particular circumstances of the case, would appear to be justified is that of 'constitutional' damages, i.e. damages due to the breach of a constitutionally entrenched right. No other remedy is apparent.⁵²

The Supreme Court of Appeal held, furthermore, that under the circumstances the return of the land to Modderklip was not feasible.⁵³ By ordering the State to pay damages it ensured that the occupiers could remain on the land. The Supreme Court of Appeal held, moreover, that the State might expropriate the land and that Modderklip might receive compensation for the past use of the land.⁵⁴

The Constitutional Court had regard to several factors to determine what would constitute appropriate relief.⁵⁵ It also considered the "general tone and purpose of legislation enacted to govern evictions, read with the relevant constitutional provisions."⁵⁶

Langa ACJ further noted that the relief given by the Supreme Court of Appeal had been foreshadowed in Fose, when it held that in principle appropriate relief could also include an award for damages.⁵⁷

The state held that a declaratory order would have been sufficient. Langa ACJ held that this could go some way toward assisting Modderklip, and it could even bring a delictual action against the state;⁵⁸ however, after its long history of attempting to relieve its property from unlawful occupation, it needed something "more effective" than a declaration of rights.⁵⁹

For the purposes of this article, the relevant parts of the order of the court are as follows:⁶⁰

(a) the applicant is entitled to payment of damages by the Department of Agriculture and Land Affairs; and

(b) the damages are to be calculated in terms of the Expropriation Act.⁶¹

The court in this case held that while delictual damages could be claimed in that instance, constitutional damages would be a more effective remedy.⁶²

According to De Vos, constitutional damages were granted here as the plaintiff was performing the duty of the state.⁶³

2.4 Member of the Executive Council: Welfare v Kate⁶⁴

This case concerned a failure on the part of the Department of Welfare to process the plaintiff's application for a disability grant timeously. What should have been a waiting period of three months ended up being 40 months, without any explanation, before the application was approved. Eventually the plaintiff, Kate, was informed that her application had been successful. She received monthly payments and with the first payment she received R6 000 of the amount that had accrued and thereafter nothing. Again she was not given any explanation. She did not receive the balance of the accrual and interest on the amount. An application was launched in the High Court⁶⁵ for these amounts but the accrual was paid before the matter went to court. The issue before the court was whether she was entitled to interest on the accrual. The High Court ordered the defendant to pay the interest. The defendant was granted leave to appeal to the Supreme Court of Appeal

The court identified the real issue of the appeal as whether Kate was entitled to the interest from the date of application to the date on which she was notified that the payment had been made.⁶⁶ The court held that the interest during that period did not accrue "on ordinary principles" because the debt was not yet due.⁶⁷ Instead the interest for that period was "claimed and awarded as a measure of constitutional damages for the unreasonable delay that Kate was constrained to endure."⁶⁸

The court held that the fact that the Department of Welfare had acted "in breach of its constitutional obligations" was not contentious. The question of whether an award of damages was "an appropriate remedy" would be contentious.⁶⁹ With reference to Fose the court noted that "in principle monetary damages are capable of being awarded for a constitutional breach."⁷⁰ Reference was also made to Modderklip⁷¹

The court held that in this particular case it was not called upon to decide whether constitutional damages were available in general; instead the question of whether they were available

must necessarily be determined casuistically⁷² with due regard to ... the nature and relative importance of the rights that are in issue, the alternative remedies that might be available to assert and vindicate them, and the consequences of the breach for the claimant concerned.⁷³ (Own emphasis)

The appellant submitted that Kate could make use of delictual remedies that are "sufficiently restorative of any loss she suffered as a result of the breach of constitutional duties", rather than constitutional damages.⁷⁴

The question raised by the submission, according to Nugent JA, was not so much whether constitutional damages were an appropriate remedy, but rather whether a constitutional remedy should be granted at all.⁷⁵ The "infusion of constitutional normative values" into delictual principles "plays a role in protecting constitutional rights, albeit indirectly". Furthermore, delictual remedies could be extended so as to include state liability. However, Nugent JA held, the relief provided for in section 38 was not "a remedy of last resort, to be looked at only if there is alternative - and indirect - means of asserting and vindicating constitutional rights".⁷⁶ He stated that while the availability of a delictual remedy was a possibility that could be borne in mind when deciding whether to award constitutional damages, it was not decisive;⁷⁷ there would be instances in which the "direct assertion and vindication of constitutional rights would be required."⁷⁸

The fact that the public purse might be depleted was a possible factor which could mitigate against an award for (constitutional damages), however Nugent JA held that this conduct was unlawful and that concern over the public purse was not a reason to withhold a remedy.⁷⁹

Nugent JA came to the conclusion that the only appropriate remedy in this case would be to award constitutional damages.⁸⁰ The purpose of these damages would be to compensate Kate for the breach of her right.⁸¹ In relation to computing the damages to be awarded, the court held that while she had not suffered financial loss in the sense of loss of interest (as she would not have invested the money), she was "held in poverty ... a cursed condition".⁸² This also amounted to an infringement of her right to dignity. The court held that she should be awarded the equivalent of interest to be paid when money was unlawfully withheld, provided that it was not more than the capital amount.⁸³

De Vos notes that this is an instance of constitutional damages being payable where the compensation was already owed to the plaintiff.⁸⁴

2.5 Minister of Police v Mboweni⁸⁵

This case concerned a case of assault by fellow inmates on Mahlati, when he was detained at a local police station. During the course of his assault, the other inmates had been making a noise, so as not to be heard by the police. Mr Mahlati was eventually released but died five days later.

The two respondents in casu were the mothers of Mr Mahlati's children, who claimed damages based on the fact that the children's "right to parental care as provided for in Section 28(1) (b) [of the Constitution] was impaired upon when their father died as a result of 'the unconstitutional conduct.'"⁸⁶

The High Court awarded delictual damages for loss of support (agreed upon by the parties)⁸⁷ as well as constitutional damages.⁸⁸ Insofar as the quantum of damages was concerned, the matter was referred to trial.⁸⁹

The Minister appealed the award of constitutional damages.

The court considered both Modderklip and Kate as the only cases in which constitutional damages had hitherto been awarded, but that the facts of the present case differed from those cases.⁹⁰ Wallis JA noted that upholding the judgment of the High Court would "break new ground",⁹¹ which would require "careful consideration of the legal basis for the claim and the reasons for holding that constitutional damages are the appropriate remedy to be afforded to the claimants."⁹²

In the present case the parties had not pleaded the facts necessary to determine an appropriate remedy.⁹³ Fose, Modderklip and Kate showed that the question of remedy could arise only once the relevant facts had been identified and pleaded and it had been shown that the rights in question had been infringed.⁹⁴

The second problem raised by Wallis JA was that it had not been shown that the children had the right to parental care. Another issue was that the parties had not pleaded that the breach of the children's constitutional right was wrongful. While it had been wrongful as against the deceased, there was no proof that it had been wrongful against the children.⁹⁵

Even if these questions had been decided in favour of the respondents, the question which remained was whether constitutional damages was an appropriate remedy for that breach.⁹⁶

The proper starting point, according to Wallis JA, was to consider whether the delictual remedy for damages for loss of support was appropriate for compensating the children for a breach of their constitutional rights.⁹⁷

With reference to two dicta of Moseneke DCJ,⁹⁸ Wallis JA noted that delictual remedies might be appropriate in the case of breaches of constitutional rights. Wallis J further noted that the High Court had not considered whether a delictual claim for damages for loss of support was an appropriate or adequate remedy for the breach of the children's constitutional rights.⁹⁹ If the common law remedy was inadequate, the court should have considered whether this could be remedied by the development of the common law. Wallis JA next referred to Fose, where Ackermann J held that the law of delict is flexible enough to give effect to the spirit, purport and objects of the Bill of Rights.¹⁰⁰

Ackermann J, according to Wallis JA, did not endorse a general proposition that constitutional damages would compensate general damages. It would be anomalous if Mr Mahlati were, because of the decision in Fose, not entitled to constitutional damages but, on the other hand his daughters could claim such damages in addition to damages for loss of support.¹⁰¹

Wallis also referred to claims for loss of support in the context of Road Accident Fund claims and noted that if constitutional damages were to be awarded in addition to delictual damages for loss of support, this would only add to the "existing burden" of the Fund.

Wallis JA held that the High Court had not addressed the factual and legal issues that were important to the decision it had to make and thus the judgment of the High Court for the award of constitutional damages was overturned.¹⁰²

2.6 RK v Minister of Basic Education¹⁰³

The tragic facts of this case are well known. Michael Komape, a little boy, fell into a pit latrine and drowned in his own faeces. His traumatised family claimed and was awarded damages for emotional shock and grief and future medical treatment for two members of the family.¹⁰⁴

The family also claimed cumulatively the amount of R2 million in respect of grief "based on the common law as developed in accordance with section 39(2) of the Constitution"; alternatively they claimed to be entitled to that sum as constitutional damages "in accordance with the development of the common law under s39(2)."¹⁰⁵ This claim was dismissed.

In deciding the claim for constitutional damages the Supreme Court of Appeal per Leach JA had regard to a number of cases, inter alia Kate,¹⁰⁶ Modderklip¹⁰⁷ and Fose.¹⁰⁸ The court noted that in the first two instances constitutional damages had been awarded for financial loss. Leach JA noted, however, that constitutional damages had not been awarded as a solatium for the beach of any right where there had not been patrimonial loss.¹⁰⁹ There were also no cases in which damages had been awarded for a physical or psychiatric injury.¹¹⁰ The court furthermore held that because the parties had received compensation for general damages, any additional damages would amount to punishment for the breach of a right already compensated.¹¹¹

Leach JA referred to the dictum in Fose, where it was held that past awards for police brutality did not have a deterrent effect on this conduct.¹¹² It was held furthermore that in a country with scarce resources where the plaintiffs had already been compensated the resources could rather be used to eliminate or reduce the causes of infringement.¹¹³

The appellants in casu argued that that the approach followed in Fose "was not cast in stone" and referred to decisions in Canada,¹¹⁴ New Zealand¹¹⁵and Ireland.¹¹⁶ The appellant also referred to the Life Esidimeni arbitration.¹¹⁷ With regard to the latter Leach JA held that it did not have binding force, firstly because it lacked the force of judicial precedent, and secondly because the facts were substantially different.¹¹⁸ Insofar as the decisions in the other jurisdictions were concerned, the court held that the circumstances in these jurisdictions were substantially different to those in South Africa.¹¹⁹ In South Africa there was a "chronic shortage of what would in foreign jurisdictions be regarded as basic infrastructure."¹²⁰

Leach JA held that circumstances in the country had not changed so much as to regard the Fose approach as no longer applicable and hence concluded that constitutional damages could not be awarded in the present case.¹²¹

2.7 Life Esidimeni Arbitration'¹²²

The facts of the Life Esidimeni arbitration are as tragic as those of RK and have been described in detail, both by Moseneke DCJ in his award and Zitzke in his article.¹²³

In short, a large number of mental health users were moved from Life Esidimeni facilities after October 2014. Of these, 144 died, 1418 were exposed to trauma and morbidity, and at the time of the arbitration the whereabouts of 44 remained unknown.¹²⁴

Following the recommendations of a report¹²⁵ of the Health Ombudsman, the parties referred the dispute to arbitration before a single arbitrator.¹²⁶

The issue that the arbitrator had to determine was the "nature and extent of the equitable redress including compensation" that was due to the victims and their families.¹²⁷

The Government acknowledged liability for funeral expenses and general damages for pain, suffering and emotional shock. The claimants in addition called for "equitable redress", which would include constitutional damages, for the "the pervasive, egregious, uncaring and wanton violations of the constitutional rights of all mental health care users affected and their families."¹²⁸ In some instances punitive damages were claimed in addition to constitutional damages.¹²⁹

The Government opposed the claim for constitutional damages, holding that if the claimants had been compensated under the common law, they might not rely on the Constitution to "seek equitable redress".¹³⁰ The Government further held that all civil claims had to be brought in terms of the common law.¹³¹ The Government therefore wanted to settle common law damages and held that the claimants could not rely on the Constitution for equitable redress.¹³²

The Government furthermore relied on Mboweni¹³³ in which the court held that the claimants could not claim constitutional damages in addition to the common law claim for loss of support. In Mboweni the Supreme Court of Appeal had held that

the question of remedy can only arise after the relevant right has been properly identified and the pleaded or admitted facts show that the right has been infringed. An inquiry into damages cannot take place in the air. It must be an inquiry into the damages arising from an identified wrong.¹³⁴

The Government furthermore referred to the cases on which the court in Mboweni had relied, namely Dikoko v Mokhatla¹³⁵ and Law Society of South Africa v Minister for Transport,¹³⁶ (both majority judgments written by Moseneke) for authority that the claimant could have claimed for loss of parental care in terms of the common law.¹³⁷

The Government had held that the claimants should be non-suited if they did not convert all their claims into common law claims, but neither of the two cases on which the Government relied, nor Mboweni, were according to Moseneke J authority for the Government's proposition.¹³⁸ Moseneke J held that these cases had simply held that the section 38 remedy could be "vindicated by a common law mode of pleading and claim" and parties were not barred from relying on the Constitution in circumstances where breaches "defied common law formulation".¹³⁹ He furthermore noted that

It would be strange if not bizarre if a claim under the supreme law would be denied vindication simply because it could not fit into the common law framework. If that were so, the constitutional remedies would be granted only subject to the common law. That would be a remarkably retrogressive understanding of the hierarchy of sources of law. It is important to restate that the common law is subservient to the Constitution and not the other way around.¹⁴⁰

Moseneke J went further and held that the "invasive and pervasive violation of Constitutional rights" cannot simply be brought within the ambit of the common law.¹⁴¹ The common law has no equivalent for breaches by the State of the right to a number of constitutional rights, including the right to health and the protection of cruel, degrading and inhuman treatment.¹⁴² The common law also does not have an equivalent of a claim against the State for violating the rule of law and also for not having regard to legislative protection which is meant to "give effect to constitutional guarantees or a claim arising from a breach of international obligations on Mental Health care."¹⁴³ All these breaches led to "agonising devastation" for the claimants.¹⁴⁴

In effect the Government has invited me to squeeze this pervasive and reeking violation of our Constitution and many valuable laws into psychological injury and shock for which R180 000 might be the going rate in trial courts under the common law. I decline that invitation.¹⁴⁵

Moseneke J found that the parties could not be expected to rely only on the "narrow and dated strictures of the common law".¹⁴⁶ He thus awarded constitutional damages in addition to damages for funeral expenses and general damages for shock and psychological trauma.¹⁴⁷ It is submitted that the constitutional damages constitute punitive damages in this case, as Moseneke J clearly wanted to send a message to the government regarding the pernicious treatment of the victims.¹⁴⁸

Zitzke is critical of this award, noting inter alia that it was not necessary to relegate the common law to the side-lines, as a similar message could have been sent "through a hefty award of common law damages coupled with appropriate criminal sanctions .,."¹⁴⁹

2.8 Ngomane v Johannesburg (City)¹⁵⁰

The facts of the case are, shortly, that the claimants, homeless people, had lived under a bridge for some time. Some of the members of the group were employed and earned money from collecting recyclable goods. They had make-shift homes which they would assemble at night, and during the day they would break them down. The material for these homes as well as their other possessions was left on the traffic island every day as they went to find food and earn money.

These possessions, as well as the material for their make-shift homes, had been confiscated and removed without engaging with the claimants and without a court order. The claimants alleged that their rights in terms of sections 25(1)¹⁵¹ and 26(3)¹⁵² of the Constitution had been breached because their homes had been demolished without a court order, they had been deprived unlawfully of their property, and their rights to dignity and adequate shelter had been infringed.¹⁵³

The respondents opposed this application, holding that this was a "clean-up exercise" which involved removing the personal belongings of the people concerned and that valuable personal belongings which had been removed would be noted in an inventory and kept for the owners to collect them.¹⁵⁴

The High Court rejected the vindicatory claim on the basis that the property which had been removed had not been properly described and had in any event been destroyed and could not be returned.¹⁵⁵

The High Court furthermore rejected a claim in terms of the mandament van spolie, in terms of which the applicants wished their property to be replaced. It was, furthermore, held that their claim was not limited to patrimonial loss.¹⁵⁶

On appeal the applicants raised certain issues, inter alia whether (a) they ought to have been granted a constitutional remedy similar to that in the case of Tswelopele Non-Profit Organisation v City of Tshwane Metropolitan Municipality;¹⁵⁷ and whether (b) they were entitled to punitive constitutional damages.¹⁵⁸

The Supreme Court of Appeal agreed with the High Court's stance on the mandament van spolie.¹⁵⁹

The respondents had not acceded to the proposal of the applicants, namely that an amount of money (R1 500 per applicant, totalling R45 000) be paid to each one of the applicants. In this regard Maya P for the Supreme Court of Appeal held as follows:¹⁶⁰

[I]n my view, it constitutes appropriate relief in the specific circumstances of this case. It will vindicate the Constitution and protect the applicants and others similarly situated against violations of their rights to dignity and property in the manner envisaged in Fose.

The court thus awarded constitutional damages for the destruction of the property of the applicants.¹⁶¹

Zitzke regards this decision as in line with the decisions of Mboweni and Komape, in addition to what can "generally be described as a constitutional transformative approach to the sources of the law of delict and remedies" and thus welcomes this decision.¹⁶²

2.9 The effect of Fose

Fose was clear on the fact that an award for delictual damages in that particular constituted appropriate relief. It held, furthermore, that punitive constitutional damages could not be awarded because of the fact that punitive damages were not recognised in South African law. The cases prior to the Residents and Thubakgale cases were not consistent in the awarding of constitutional damages, with Modderklip and Kate deviating from Fose, albeit distinguishing the facts of these cases from Fose. In the Life Esidimeni arbitration constitutional damages were awarded alongside delictual damages, as the arbitrator thought that delictual damages were wholly unsatisfactory in this instance. It is submitted, as held by Zitzke (see above), that a substantial award of damages, along with criminal prosecution, would have had the desired effect.

The Residents and Thubakgale cases, discussed below, have established more detailed guidelines for the availability of constitutional damages. In the Residents case in particular Jafta J, in his concurring judgment, listed instances in which constitutional damages would or would not be available. As will be seen, the availability of constitutional damages remains casuistic and in need of a general principle to solve the problem of incoherence referred to in the introduction.¹⁶³

 

3 Recent case law

This section deals with the most recent pronouncements of the Constitutional Court on the availability of constitutional damages. For the sake of brevity the focus of the discussion below is on constitutional damages only.

3.1 Residents of Industry House, 5 Davies Street, New Doorn fontein, Johannesburg v Minister of Police¹⁶⁴

3.1.1 Facts

The applicants in this case consisted of a group of almost 3 000 people who lived in the inner city of Johannesburg over eleven different properties. They had been subjected over a period of a year to "cruel, invasive and degrading raids" by the police without warrants.¹⁶⁵ In each case the occupants were forced out of their houses. Those who were not in possession of valid documents were arrested. The other occupants were allowed to return after the searches, only to find the dwellings in complete disarray and with some of their possessions missing. In each instance the raids were conducted in terms of the section 13(7) of the South African Police Service Act.¹⁶⁶

The applicants approached the High Court claiming the following, amongst other things: compensation for the infringement of their constitutional rights to dignity and privacy in the amount of R1 000 constitutional damages for each applicant.¹⁶⁷

The claim for constitutional damages was dismissed, partly because there was no evidence that every room had been searched,¹⁶⁸ the court having held that it was not appropriate to grant a blanket order for constitutional damages.¹⁶⁹

The applicants approached the Constitutional Court claiming inter alia¹⁷⁰leave to appeal against the High Court's refusal to award the applicants constitutional damages.

Insofar as the claim for constitutional damages was concerned, the applicants submitted that the constitutional damages were "an appropriate surrogate for non-pecuniary loss caused by the negation of constitutional values embodied in a breach of rights."¹⁷¹

The Constitutional Court dismissed the appeal for constitutional damages:¹⁷²

3.1.2 Judgments

3.1.2.1 Mhlantla J (majority)

Mhlantla J commenced by stating that in terms of section 38 a court can award damages for infringements of rights contained in the Bill of Rights.¹⁷³He canvassed the existing case law before formulating general principles on the availability of constitutional damages. Mhlantla J then referred to Fose, where it was held by Ackermann J that in appropriate cases an award for [constitutional] damages could be made.¹⁷⁴

The concept of appropriate relief included an award for constitutional damages in instances of a direct infringement of a right,¹⁷⁵ but appropriateness was an "elusive" term.¹⁷⁶ With reference to Fose, Mhlantla J noted that appropriateness could be equated with effectiveness, because without effective remedies for breach, constitutional rights could not be upheld.¹⁷⁷ In referring to both Fose and Dikoko he held that the law of delict would in most cases be "broad enough" to provide appropriate relief for the infringements of constitutional rights;¹⁷⁸ where a delictual remedy would be available, constitutional damages would seldom be available in addition to a common law remedy.¹⁷⁹ This would be because the delictual remedy would be "the most appropriate remedy".¹⁸⁰

Mhlantla J next referred to the Modderklip case, in which, as indicated above, constitutional damages were awarded.¹⁸¹

In Modderklip the court held that "appropriateneness should be understood to denote effectiveness".¹⁸² However, in that case the Constitutional Court chose the more effective remedy in the circumstances.¹⁸³

Claims for constitutional damages for pure economic loss had not been successful, for example in Olitzki.¹⁸⁴

Insofar as the availability of constitutional damages was concerned there were, according to Mhlantla J, "two overarching considerations".¹⁸⁵

The first "overarching consideration" was whether there was an existing common law or statutory law remedy.¹⁸⁶ According to Mhlantla J the availability of an alternative remedy was "not an absolute bar to the granting of constitutional damages, but a weighty consideration against the award of such damages."¹⁸⁷ In some instances a delictual remedy would be available but it would not be effective because the damage-causing conduct could be an inherent barrier to the remedy, because the wrongful conduct itself created1 a complete barrier to proving one of the elements of delict.¹⁸⁸ The circumstances of the case might also be such that the delictual remedy might not be effective.¹⁸⁹ In these instances a court might consider an award of constitutional damages despite the fact that there was an alternative (delictual) remedy.¹⁹⁰

In the present case the applicants could have instituted the actio iniuriarum and the fact that it might be onerous to prove the elements did not in itself cause the remedy to be ineffective.¹⁹¹

The second "overarching consideration" related to whether the alternative remedy would be appropriate under the circumstances.¹⁹² If the remedy was appropriate, it would not be necessary to resort to constitutional damages.¹⁹³ Where there were many appropriate remedies, the court had a discretion to select one that was the most appropriate under the circumstances.¹⁹⁴ If constitutional damages were an appropriate remedy, the court might still choose another remedy as appropriate relief in accordance with section 38. However, section 38 had to be read together with "the command of section 172(1) of the Constitution".¹⁹⁵

Mhlantla J noted that if constitutional damages were to be deemed available if they met the "mere threshold of appropriate relief", this would give rise to considerable uncertainty. It would also result in inequality in the sense that claimants who wanted to enforce the same right might be treated differently.¹⁹⁶ This would in turn create uncertainty as to the availability of constitutional damages.¹⁹⁷

The uncertainty and unpredictability would be at variance with the rule of law, a linchpin of the Constitution. Therefore, constitutional damages must be the most appropriate remedy available to vindicate constitutional rights with due weight attached to other alternative remedies available in the common law and statutes.¹⁹⁸ (Own emphasis)

Mhlantla J mentioned other factors such as

whether the infringement of the constitutional rights was systemic, repetitive and particularly egregious; whether the award will significantly deter the type of constitutional abuses alleged; the effect of the award on state resources; and the need to avoid opening the floodgates in respect of similar matters.¹⁹⁹

Mhlantla J further remarked that there was no evidence that constitutional damages would have a deterrent effect against repetition of infringements.²⁰⁰

In the present matter the appropriate remedies were the delictual remedies and the declaration of invalidity of section 13(7)(c) of the South African Police Service Act.²⁰¹ Once an appropriate remedy has identified it becomes unnecessary to award constitutional damages in addition to that awarded in terms of the delictual remedy.²⁰² "It is not fair to burden the public purse with financial liability where there are alternative remedies that can sufficiently achieve that purpose,²⁰³ because that would effectively amount to punishing the taxpayers for conduct for which they bear no responsibility."²⁰⁴

While recognising the egregious conduct of the respondents Mhlantla J found that awarding constitutional damages in the present instance would not be just and equitable.²⁰⁵

3.1.2.2 Jafta J (concurring)

Jafta J wrote a separate, concurring judgment to highlight why constitutional damages were not justified in this instance.²⁰⁶ As mentioned in the introduction, Jafta J stated that the decisions of our courts in deciding whether to award constitutional damages were not "coherent".²⁰⁷ Below follows a summary of Jafta J's judgment regarding the availability of constitutional damages.

(1) An award for constitutional damages must be necessary for enforcing the Bill of Rights.²⁰⁸ A distinction must be drawn between compensation for loss and damages for infringement of rights.²⁰⁹

(2) If the common or statutory law provides "adequate and effective" relief for the protection of rights in the Bill of Rights, there is no need to award constitutional damages.²¹⁰ "The claimant must make use of those remedies. It is not permissible for him or her to eschew the remedies in question and prefer to ask for constitutional damages because they can conveniently be established."²¹¹

(3) In Modderklip the court did not base its decision to award constitutional damages on the ground that it was the only effective remedy. It found constitutional damages in the circumstances to be the most appropriate remedy, because it took into consideration the circumstances of all the parties.²¹²

(4) The courts do not grant constitutional damages in every case where there has been an infringement of rights in the Bill of Rights.²¹³ "In some cases, those damages were awarded where they were the only effective relief. In others they were granted on the basis that there were special circumstances which rendered such damages the most appropriate relief. In respect of each instance, the computation of those damages was based on a clear and objective formula."²¹⁴

(5) These requirements do not apply to the infringements of socioeconomic rights "as these require a different approach to enforce".²¹⁵

(6) In order to grant such damages, it is not enough to show that there was an infringement of a right; there should also be harm and a causal link between harm and the wrongful conduct.²¹⁶

(7) A remedy such as a delictual remedy does not cease to be an alternative remedy merely because it is onerous to prove.²¹⁷Constitutional damages may be awarded only where it is necessary and the fact that an alternative (delictual) remedy is difficult to prove does not make it necessary.²¹⁸

The Thubakgale case, which is discussed in the next section, does not deal with the availability of constitutional damages where delictual damages are available, instead the Constitutional Court decided the non-availability of constitutional damages on the basis of the availability of a remedy in terms of the Housing Act²¹⁹ and the National Housing Code²²⁰ and the principle of constitutional subsidiarity.

3.2 Thubakgale v Ekurhuleni Metropolitan Municipality²²¹

3.2.1 Facts

The applicants in this case had applied for and been granted housing subsidies. Each applicant was matched to a particular stand developed with that subsidy in the Tembisa area. The applicants were supposed to have been given possession and ownership of the stands for the purpose of having a house constructed thereon. This did not happen. The applicants approached the Municipality and demanded an explanation for its failure to provide housing. They also requested assistance from other parties but this bore no fruit. When they started to receive utility accounts for the properties, they made further enquiries and discovered that the Municipality had given possession of the houses to other parties. The applicants were able to identify the stands and houses for which their subsidies had been used. There were also records proving that these were the plots to which they had been entitled. What had happened in this case was that the Municipality had employed a "dummy numbers" scheme. The consequence of this was that the plots had each been allocated to more than one beneficiary, while only one beneficiary could occupy each of them. It was not disputed that this state of affairs "is the direct result of the Municipality's connivance in - or at best the enablement of - the fraudulent and corrupt occupation of the houses."

After more than a decade of "futile interaction" with the Municipality and unsuccessful appeals to the special investigations unit, the applicants went to court, seeking an order in terms of which the Municipality had to provide them with houses in terms of their successful subsidy applications. The court in Thubakgale I upheld the claim.²²² The Municipality and others appealed to the Supreme Court of Appeal (Thubakgale II);²²³ this case concerned only the date of the implementation of the High Court order.

Less than 48 hours before the deadline imposed by the SCA was to expire the respondents applied to the High Court for an order extending the deadline for another year (Thubakgale III).²²⁴ This was opposed by the applicants and they also filed a counter-claim for constitutional damages in the amount of R5 000 for every person for every month that the Municipality did not comply with the order. The judge refused to award constitutional damages, based on the following reasons:²²⁵

(a) A contempt of court order might be a more appropriate remedy in the case where the Municipality had delayed the execution of a court order;

(b) Awarding constitutional damages would "have a punishing effect on the Municipality for not complying with the order"; and

(c) The amount of R5 000 was arbitrary and there was no evidence as to the actual loss of the parties.

The applicants then sought leave to appeal directly to the Constitutional Court.

3.2.2 Judgments

3.2.2.1 Jafta J (majority)²²⁶

Jafta J granted leave to appeal inter alia because a judgment of the court would provide guidance on whether constitutional damages should be granted.²²⁷

He held that, for the following reasons, these damages were not available:²²⁸

(a) Constitutional damages were "as a matter of principle" not available for the enforcement of socio-economic rights.²²⁹

(b) The applicants had obtained an order from the court which had been confirmed by the Supreme Court of Appeal - all that remained was to execute that order.

(c) No proper case regarding constitutional damages had been pleaded; and

(d) There was no proof of damage suffered by the parties.

After a detailed discussion of the facts and the judgment of the High Court in Thubakgale III,²³⁰ Jafta J proceeded to discuss the matter of constitutional damages for socio-economic rights.²³¹

In our law socio-economic rights are justiciable and hence enforceable against the state. Decisions of the Constitutional Court have emphasised that, insofar as rights enshrined in sections 26 and 27 are concerned, section 26(1) must be read with section 26(2) to determine the nature and content of the right of access to housing. The right of access to adequate housing is not a self-standing right that is enforceable against the state; instead it depends on the provisions of section 26(2) for it to be complete and enjoyable.

Unlike the common law, the mere existence of a right under section 26(1) does not in itself place a positive duty on the State; rather it provides that the State has a negative duty not to interfere with the right under circumstances where someone was already enjoying that right. Quoting Mazibuko v City of Johannesburg,²³² the court held that "[t]he State bears a duty to refrain from interfering with social and economic rights just as it does with civil and political rights."²³³

Where the right is not yet being enjoyed, there is a positive duty, set out in section 26(2) in terms of which the State has "to take reasonable legislative and other measures to realise the right of access to adequate housing. It is the open-endedness of this obligation, which rules out direct enforcement."²³⁴

The Constitutional Court had stated in the past that the right to access to adequate housing does not entitle "citizens to approach a court to claim a house from the state".²³⁵ The Constitutional Court had furthermore held that section 26 does not impose "a directly enforceable obligation upon the state to provide every citizen with a house immediately."²³⁶

This means that the failure to provide a house cannot give rise to damage to the individual wanting a house. In the absence of damage there is no claim for constitutional damages. Furthermore, the scheme of section 26 rules out any direct claim for damages.²³⁷

Referring to Grootboom Jafta J identifies three elements of the obligation imposed by the state in terms of section 26(2):²³⁸ (a) the obligation to "take reasonable legislative and other measures"; (b) "to achieve the progressive realisation" of the right; and (c) "within available resources".

Jafta J draws a distinction between two situations, namely where a house is destroyed by a storm. If the state had sufficient resources it could rebuild the house. On the other hand, where the house is destroyed by a third party, a claim would lie against the third party in terms of the common law of delict.²³⁹

Sections 26(2) and 27(2) are provisions that "impose a general obligation on the state and do not create a duty of care in relation to any particular individual. When there is a breach of that obligation, no specific damage or loss is caused to any individual".²⁴⁰

With reference to Fose, Jafta J notes that a claim for compensatory damages arises where there has been damage. Where the victim has suffered no harm, awarding compensatory damages is not appropriate.²⁴¹Where there is a violation of a right that has been conferred on a group, a "distributive form of relief is more suited for the latter situation as that kind of relief seeks to benefit all members of the group".²⁴² The purpose of socioeconomic rights is not to give citizens access to the basic necessities, but to achieve these goals over a period of time.²⁴³

Jafta J explains the progressive nature of the rights in sections 26 and 27 as follows:

The failure to fulfil the obligation imposed by section 26(2) of the Constitution does not cause individual harm to those who are in need of housing. It does not, it bears repetition, translate into a claim of damages enforceable at their instance. In an appropriate case, the remedy for such failure is an order directing the state to fulfil the obligation. This is because in the jurisprudence of this Court, the socio-economic rights enshrined in sections 26 and 27 have been construed to entitle the beneficiaries of those rights only to a reasonable state action undertaken within available resources to progressively realise those rights. More importantly, sections 26(2) and 27(2) define the means towards the realisation of the rights in sections 26(1) and 27(1), which realisation must be achieved progressively. This means that beneficiaries may not receive houses on the same date, even if they had put in applications at the same time. Nor are they entitled to receive houses at a location of their choice.²⁴⁴ (Own emphasis).

Jafta J furthermore notes that Majiedt J²⁴⁵ failed to consider the jurisprudence of the Constitutional Court on socio-economic rights. The question here is whether section 26(1) and (2) allows for a claim for constitutional damages. This question was not addressed in either Kate or Modderklip. Jafta J continues by stating that if constitutional damages cannot be awarded for enforcing socio-economic rights, they can also not be regarded as constituting appropriate relief for the violation of these rights.²⁴⁶

Further reasons for not granting constitutional damages in casu:

(1) In terms of the principle of constitutional subsidiarity, where legislation has been passed to give effect to a constitutional right, litigants must base their claims on that legislation and may not rely directly on the Constitution.²⁴⁷ In this case it means that the parties should have based their claim on the Housing Act²⁴⁸ and the National Housing Code.²⁴⁹

(2) The parties already have a remedy, namely a court order for the delivery of the houses. In this instance both the principles of certainty and finality will be violated if the litigants are allowed to seek a fresh remedy based on the same cause of action.²⁵⁰ The "bedrock of this principle is the once and for all rule."²⁵¹

(3) The applicants claimed damages as punishment for non-compliance with the court order, the punishment to continue until there was compliance but, according to Jafta J "[t]his is a novel means of enforcing a court order and we were not told its source in law."²⁵²However, as stated in Fose our law does not recognise punitive damages.²⁵³

(4) The damages would not have a deterrent effect on the officials.²⁵⁴Instead it would be the taxpayers who would have to foot the bill.²⁵⁵

3.2.2.2 Majiedt J (dissenting)

Majiedt J held that had he had the majority, he would have ordered inter alia that the municipality had to pay to 134 applicants the sum of R10 000 each "as and for" constitutional damages.²⁵⁶

Referring to Grootboom and Modderklip, Majiedt J emphasised the state's obligations with regard to housing and noted the "dire consequences of homelessness".²⁵⁷ He further referred to the "abysmal living conditions which are reflective of the great disparities in wealth in our society persist, manifesting in despair in almost every corner of South Africa."²⁵⁸

He identified the legal question as determining "whether an award of constitutional damages is appropriate relief, as contemplated in section 38 of the Constitution, where the state does have available resources to realise adequate housing and fails to make use of these resources."²⁵⁹

 

Constitutional damages - general principles

Appropriate relief was, Majiedt J held with reference to Fose, relief that was "required to protect and enforce the Constitution".²⁶⁰ It might include various remedies,²⁶¹ as long as the remedy enforced the Constitution. Courts had a duty to be innovative in framing new remedies in this regard.²⁶² The facts of the case would determine what appropriate relief was and what other remedies were at the disposal of the party.²⁶³ In the end the remedy had to be "effective, suitable and just".²⁶⁴ Majiedt J furthermore noted that in the event of fundamental rights having been violated, there was no entitlement to a particular remedy.²⁶⁵

In some instances common law and statutory remedies might not be appropriate under the circumstances, namely "where there is a pervasive and systematic infringement of rights". Under certain circumstances a delictual remedy for the protection of personality interests might also not be appropriate where harm extended beyond particular claimants.²⁶⁶

With reference to Fose Majiedt J stated that it was important to note that "constitutional damages are not punitive".²⁶⁷

 

Constitutional damages and alternative remedies

Regarding other remedies, such as contempt proceedings and declaratory relief as possible alternative remedies,²⁶⁸ contractual remedies,²⁶⁹ the Housing Act and the National Housing Code and the rei vindication.²⁷⁰Majiedt held that these remedies would be ineffective.²⁷¹

Insofar as delictual damages were concerned, he held that in this instance the harm was constituted by the infringement of a constitutional right and delictual remedies did "not elegantly map onto infringements of this nature."²⁷²

Majiedt J referred to the Residents case and the fact that the Constitutional Court in that instance refused to award constitutional damages. According to him, the facts of the case were different, as the parties had other remedies at their disposal.²⁷³

Majiedt J, however, held that constitutional damages would be appropriate relief in the present case,²⁷⁴ based on the "compelling facts" of the case. The applicants had been denied their right to adequate housing for over two decades, had approached the court only as a last resort and had three court orders in their favour, but these had not borne any results. There had "been the most pervasive and lamentable breach of the applicants rights."²⁷⁵

He held that the court should not avoid granting constitutional damages simply because they had not often been granted in the past.²⁷⁶ Where on the facts of the case they were the only effective remedy, constitutional damages should be granted because "[f]ailing to do so in meritorious cases will render the rich promise in the preamble of our Constitution, to '[i]mprove the quality of life of all citizens and free the potential of each person', a mere chimera."²⁷⁷

Majiedt furthermore disagreed with the statement that constitutional damages could not be awarded in the absence of injury.²⁷⁸ He also did not agree that the wording of section 26 militated against an award of constitutional damages in the case of the violation of socio-economic rights.²⁷⁹

While the reasonableness test in section 26 applied to whether or not progressive realisation had taken place, the "reasonableness standard also compels the state to act without unreasonable delay".²⁸⁰ In the present instance the applicants were relying on vested rights (the rights had been granted more than 20 years previously and confirmed twice by the High Court and the Supreme Court of Appeal) and therefore this was not a case of the progressive realisation of rights.²⁸¹ Majiedt J therefore concluded that constitutional damages might be appropriate in the case of socio-economic rights and that the applicants in this case had such a claim.²⁸²

Majiedt J then challenged the other reasons raised by Jafta J regarding why constitutional damages would not be available:²⁸³

 

The principle of subsidiarity

Majiedt J disagreed with Jafta J regarding the principle of subsidiarity, as the parties had initially attempted to find relief by means of the Housing Act and the National Housing Code but that had not been successful.²⁸⁴Furthermore, neither the Housing Act nor the National Housing Code made provision for damages.²⁸⁵

 

The once and for all rule

Insofar as Jafta J had relied on the once and for all rule,²⁸⁶ while recognising the importance of the rule Majiedt J disagreed with the finding that the two remedies were based on the same cause of action.²⁸⁷ It is submitted that Majiedt is correct.

The next section deals with the availability of constitutional damages, when such damages could constitute an appropriate remedy, and the use of the principle of subsidiarity as an underlying principle able to solve the casuistry problem of constitutional damages.

 

4 Commentary

4.1 Availability

From the cases cited above it is clear that constitutional damages will usually not be available where the claimants have a delictual remedy at their disposal.²⁸⁸ If the common or statutory law provides "adequate and effective" relief for the protection of rights in the Bill of Rights, there is no need to award constitutional damages (see above). The mere fact that proof of delictual liability is onerous does not give rise to the availability of constitutional damages.²⁸⁹

Kika argues as follows:²⁹⁰

The existence of delictual remedies neither negates nor renders cosmetic the direct application of constitutional remedies ... constitutional remedies cannot be extinguished or devalued on account of the existence of other remedies at common law and in statute. ... it would go against the constitutional order of the day for one to be denied use of constitutional remedies directly owing to the existence of those common law remedies.

There are situations where a delictual remedy will be available but it will not be effective because the damage-causing conduct could be an inherent barrier to the remedy.²⁹¹

Other principles that can be deduced from the cases as well as other sources include the following:

(1) An award for constitutional damages must be necessary for enforcing the Bill of Rights.²⁹² There is a distinction between compensation for loss and damages for the infringement of rights.²⁹³

(2) Constitutional damages are, according to Jafta J, not available in the case of the infringement of socio-economic rights.²⁹⁴ However, Liebenberg notes however that "[f]ortunately, the part of Jafta J's judgment holding that constitutional damages can never be an appropriate remedy for violations of the socio-economic rights in sections 26 and 27 does not stand as binding precedent due to the separate judgment of Madlanga J (in which Mhlantla J concurred)."²⁹⁵

(3) Constitutional damages are usually not available in the case of pure economic loss.²⁹⁶

(4) In order to grant such damages, it is not enough to show that there was an infringement of a right; there should also be harm and a causal link between harm and the wrongful conduct.²⁹⁷

(5) The purpose of constitutional damages is not to punish the defendants.²⁹⁸ However, the awarding of constitutional damages in the Life Esidimeni arbitration counters this.²⁹⁹

(6) The once and for all rule applies to constitutional damages - they cannot be claimed where the parties have an effective remedy based on the same cause of action.³⁰⁰

(7) Where there are many appropriate remedies, the court has a discretion to choose the one that is most appropriate.³⁰¹

(8) Constitutional damages must not only be an effective remedy; they must be the only effective remedy.³⁰²

(9) Where the parties have a remedy in terms of legislation that has been passed to give effect to a right in the Constitution, litigants must, in terms of the principle of subsidiarity, base their claims on that legislation and not rely directly on the Constitution.³⁰³

(10) Constitutional damages may be granted where the plaintiff is performing the duty of the state, as in Modderklip.³⁰⁴

(11) In some instances the fact that the public purse would be depleted, was held to be a reason for not awarding constitutional damages,³⁰⁵while in others the courts held that that this could not be a reason to withhold constitutional damages.³⁰⁶

From the above one can deduce that the rules relating to constitutional damages are casuistic, with no underlying general principle guiding them. The availability of constitutional damages remains limited, with only a few cases having awarded these damages in the aftermath of Fose. The role of the principle of subsidiarity as a generalising factor is discussed below.

4.2 Appropriate relief

The question as to what entails "appropriate relief" was addressed in Fose.³⁰⁷ As noted above, Ackermann J opined that this could include a declaration of rights, an interdict, and a mandamus "or such other relief as may be required to ensure that the rights enshrined in the Constitution are protected and may be enforced." Ackermann J recognised that the courts would in future have to create new remedies to ensure that constitutional rights were enforced and protected.³⁰⁸

Ackermann J further noted that where it was necessary to protect Chapter 3 (Chapter 2 in the 1996 Constitution) there was no reason "appropriate relief" could not include an award for damages.³⁰⁹ He did not refer here to constitutional damages. Instead reference was made to the common law of delict and the fact that it was flexible enough to be developed.³¹⁰

Ackermann J held, though, that constitutional damages with a punitive element had no place in South African law.³¹¹

Most of the cases that followed Fose agreed that constitutional damages would be available only where they proved to be the most effective and appropriate remedy, but in most cases the courts held that where delictual damages were available, constitutional damages should not be awarded. Appropriate relief would thus also include delictual damages.

4.3 Constitutional subsidiarity

As indicated above, the principle of constitutional subsidiarity was invoked in Thubakgale to deny an award of constitutional damages.³¹²

Constitutional subsidiarity entails avoiding "two parallel systems of law".³¹³This may also be applied to the common law. Zitzke sees adjudicative subsidiarity as medium³¹⁴ between what he refers to as constitutional heedlessness ("substantive avoidance of the potential impact of the Constitution")³¹⁵ and constitutional over-excitement ("relegation of established common-law rules that are ultimately replaced by a pure application of constitutional principles").³¹⁶

In Eskom Holdings SOC Ltd v Vaal River Development Association (Pty) Ltd ³¹⁷ the Constitutional Court per Madlanga J noted the following regarding constitutional subsidiarity:

The principle of subsidiarity, repeatedly recognised by this Court, has a number of applications. One application of the principle is that a litigant cannot directly invoke a constitutional right when legislation has been enacted to give effect to that right. The litigant must either challenge the constitutionality of the legislation so enacted or rely upon the legislation to make its case.³¹⁸

He went on to quote Khampepe J in South African Human Rights Commission obo South African Jewish Board of Deputies v Masuku:³¹⁹

Broadly, the principle of subsidiarity is the judicial theory whereby the adjudication of substantive issues is determined with reference to more particular, rather than more general, constitutional norms. The principle is based on the understanding that, although the Constitution enjoys superiority over other legal sources, its existence does not threaten or displace ordinary legal principles and its superiority cannot oust legislative provisions enacted to give life and content to rights introduced by the Constitution. (Own emphasis).

Reference is made here to "other legal sources" and "ordinary legal principles"; this could therefore include the common law. In this regard reference is made to the quotation of Zitzke above regarding the "hidden subsidiarity" in Fose.³²⁰ In the same vein Price wrote in 2015 that

constitutional damages are still regarded as a long-stop or subsidiary remedy: in accordance with the constitutional principle of subsidiarity, constitutional damages 'might be awarded where no statutory remedies have been given or no adequate common-law remedies exist'.³²¹ (Own emphasis).

(The principle of subsidiarity was not applied In Modderklip, Kate and the Life Esidimeni arbitration. In Modderklip the court specifically held that constitutional damages in that instance were more suited than delictual damages.)³²²

The principle of subsidiarity could thus provide a general principle for the availability of a remedy such as constitutional damages, making the rules less casuistic. Instead of having regard to a list of instances when constitutional damages would or would not be available, subsidiarity could be applied as a single principle.

 

5 Conclusion

Insofar as the awarding of constitutional damages is concerned, Fose remains the locus classicus, having been referred to extensively in cases where constitutional damages have been claimed. Fose emphasised the compensatory nature of the law by stating clearly that punitive damages have no place in South African law. The court, furthermore, in that instance also did not award constitutional damages, as this would have put an undue burden on the state. As with the cases after Fose, the court held that where delictual damages are available, there is no need for constitutional damages. The court in Fose did not identify situations in which constitutional damages would be available.

The rules for the availability have been described as "casuistic" and lacking coherence. In most cases where constitutional damages have been claimed, either on their own or in addition to delictual damages, the courts have provided that constitutional damages cannot be awarded in addition to delictual damages. An exception to this is the Life Esidimeni arbitration, where constitutional damages with a punitive element were awarded. The arbitration, as indicated above, is not binding. This is the only instance in which constitutional damages were awarded alongside delictual damages. In Modderklip and Kate constitutional damages were awarded, in Modderklip the court held that delictual damages could be awarded, but found that constitutional damages in that instance would be the more effective remedy. The latest two Constitutional Court cases are still advocating that constitutional damages cannot be awarded where delictual damages would suffice. In Thubakgale the Constitutional Court specifically invoked the principle of subsidiarity in this regard.³²³

This position, when considering the Residents and Thubakgale cases, seems not to have changed.³²⁴ One has to conclude therefore that the constitutional damages landscape has remained somewhat static.

 

Bibliography

Literature

De Vos P and Freedman W South African Constitutional Law in Context 2^nd ed (Oxford University Press Cape Town 2021)        [ Links ]

Dendy M "Damages" in Faris JA (ed) Law of South Africa (LexisNexis Durban 2018) vol 14(1)        [ Links ]

Department of Human Settlements National Housing Code (Department of Human Settlements Pretoria 2009)        [ Links ]

Kika M Fashioning Judicial Remedies that Work in a Constitutional Society Establishing a Framework for a Functional Approach to the Awarding of Constitutional Damages in South Africa Law and Comparative Jurisdictions (PhD-thesis University of Cape Town 2019)        [ Links ]

Klopper H Damages (LexisNexis Durban 2017)        [ Links ]

Liebenberg S "The Art of the (Im)possible? Justice Froneman's Contribution to Designing Remedies for Structural Human Rights Violations" 2022 CCR 139-169        [ Links ]

Loubser MM and Midgley R (eds) The Law of Delict in South Africa 3^rd ed (Oxford University Press Cape Town 2017)        [ Links ]

Neethling J and Potgieter JM Law of Delict 8^th ed (LexisNexis Durban 2020)        [ Links ]

Price A "State Liability and Accountability" 2015 Acta Juridica 313-335        [ Links ]

Van der Walt JC Delict: Principles and Cases (Butterworths Durban 1979)        [ Links ]

Zitzke E "Constitutional Heedlessness and Over-Excitement in the Common Law of Delict's Development" 2015 CCR 259-290        [ Links ]

Zitzke E "Grondwetlike Skadevergoeding as 'Nominale' en 'Verswaarde' Skadevergoeding in Dringende Aansoeke Ngomane v Johannesburg (City) 2020 1 SA 52 (HHA)" 2020 Litnet 790-802        [ Links ]

Zitzke E "The Life Esidimeni Arbitration: Towards Transformative Constitutional Damages?" 2020 TSAR 419-440        [ Links ]

Case law

Canada

Vancouver (City) v Ward [2010] 2 SCR 28

Ireland

Kennedy v Ireland [1987] IR 587

Conway v Irish National Teachers Organisations [1991] 2 IR 305

New Zealand

Dunlea v Attorney-General [2000] 3 NZLR

Liston-Lloyd v The Commissioner of Police [2015] NZHC 2614

South Africa

Arbitration Award between Families of Mental Health Care Users Affected by the Gauteng Mental Marathon Project (Claimants) and National Minister of Health of the Republic of South Africa, Government of the Province of Gauteng, Premier of the Province of Gauteng, Member of the Executive Council of Health: Province of Gauteng (Respondents) http://www.saflii.org/images/LifeEsidimeniArbitrationAward.pdf accessed 13 March 2023

Dikoko v Mokhatla 2006 6 SA 235 (CC)

Ekurhuleni Metropolitan Municipality v Thubakgale (125/2018) [2018] ZASCA 76 (31 May 2018)

Ekurhuleni Metropolitan Municipality v Thubakgale (High Court, Gauteng Division, Pretoria) (unreported) case number 39602/2015 of 13 July 2020

Eskom Holdings SOC Ltd v Vaal River Development Association (Pty) Ltd 2023 5 BCLR 527 (CC)

Esorfranki Pipelines (Pty) Ltd v Mopani District Municipality 2023 2 SA 31 (CC)

Esselen v Argus Printing and Publishing Co Ltd 1992 3 SA 764 (T)

Fose v Minister of Safety and Security 1996 2 BCLR 232 (W)

Fose v Minister of Safety and Security 1997 3 SA 786 (CC)

Government of the Republic of South Africa v Grootboom 2001 1 SA 46 (CC)

Kate v MEC for the Department of Welfare, Eastern Cape 2005 1 SA 141 (SECLD)

Law Society of South Africa v Minister for Transport 2011 1 SA 400 (CC)

M v Minister of Police 2013 5 SA 622 (GNP)

Mahambehlala v MEC for Welfare, Eastern Cape 2001 1 SA 342 (SE)

Mazibuko v City of Johannesburg 2010 4 SA 1 (CC)

Mbanga v MEC for Welfare, Eastern Cape 2002 1 SA 359 (SE)

Member of the Executive Council: Welfare v Kate 2006 4 SA 478 (SCA)

Minister of Police v Mboweni 2014 6 SA 256 (SCA)

Modderfontein Squatters, Greater Benoni City Council v Modderklip Boerdery (Pty) Ltd (Agri SA and Legal Resources Centre, Amici Curiae); President of the Republic of South Africa v Modderklip Boerdery (Pty) Ltd (Agri SA and Legal Resources Centre, Amici Curiae) 2004 6 SA 40 (SCA)

My Vote Counts NPC v Minister of Justice and Correctional Services 2018 5 SA 380 (CC)

Ngomane v Johannesburg (City) 2020 1 SA 52 (SCA)

Olitzki Property Holdings v State Tender Board 2001 3 SA 1247 (SCA)

President of the Republic of South Africa v Modderklip Boerdery (Pty) Ltd 2005 5 SA 3 (CC)

Residents of Industry House, 5 Davies Street, New Doornfontein, Johannesburg v Minister of Police 2023 3 SA 329 (CC)

RK v Minister of Basic Education 2020 2 SA 347 (SCA)

S v Vermaas; S v Du Plessis 1995 3 SA 292 (CC)

South African Human Rights Commission obo South African Jewish Board of Deputies v Masuku 2022 4 SA 1 (CC)

Thubakgale v Ekurhuleni Metropolitan Municipality 2018 6 SA 584 (GP)

Thubakgale v Ekurhuleni Metropolitan Municipality 2022 8 BCLR 985 (CC)

Legislation

Constitution of the Republic of South Africa Act 200 of 1993

Constitution of the Republic of South Africa, 1996

Expropriation Act 63 of 1975

Housing Act 107 of 1997

Promotion of Administrative Justice Act 3 of 2000

South African Police Service Act 68 of 1995

Internet sources

Office of the Health Ombud 2017 Report into the Circumstances Surrounding the Deaths of Mentally Ill Patients: Gauteng Province http://healthombud.org.za/wp-content/uploads/2017/05/FINALREPORT.pdf accessed 8 August 2023        [ Links ]

List of Abbreviations

CCR Constitutional Court Review

TSAR Tydskrif vir die Suid-Afrikaanse Reg

 

 

Date Submitted: 04 April 2023
Date Revised: 22 August 2023
Date Accepted: 22 August 2023
Date Published: 23 November 2023

 

 

Guest Editors: Prof M Carnelley, Mr P Bothma
Journal Editor: Prof Christa Rautenbach
* André Mukheibir. BMus BA Hons HDE BJuris LLB DIuris. Professor, Nelson Mandela University Email: andre.mukheibir@mandela.ac.za. ORCiD: https://orcid.org/0000-0002-7277-2910.
1 Section 38 of the Constitution of the Republic of South Africa, 1996 (the Constitution).
2 Fose v Minister of Safety and Security 1997 3 SA 786 (CC).
3 Constitution of the Republic of South Africa Act 200 of 1993 (the interim Constitution).
4 See the discussion in 2.1 below.
5 See 2 below.
6 Kika Fashioning Judicial Remedies 126. Also see Price 2015 Acta Juridica 313-335
7 Jafta J in Residents of Industry House, 5 Davies Street, New Doornfontein, Johannesburg v Minister of Police 2023 3 SA 329 (CC) para 128. Also see Zitzke 2020 Litnet 790-793.
8 Member of the Executive Council: Welfare v Kate 2006 4 SA 478 (SCA) para 25.
9 Residents of Industry House, 5 Davies Street, New Doornfontein, Johannesburg v Minister of Police 2023 3 SA 329 (CC) (hereafter Residents); Thubakgale v Ekurhuleni Metropolitan Municipality 2022 8 BCLR 985 (CC) (hereafter Thubakgale).
10 Fose v Minister of Safety and Security 1997 3 SA 786 (CC) (hereafter Fose). See also Dendy "Damages" para 9; Klopper Damages 250 fn 158, Loubser and Midgley Law of Delict 36-40; Neethling and Potgieter Law of Delict 22 fn 166, Price 2015 Acta Juridica 324 and further.
11 Fose para 11.
12 Fose para 15.
13 Fose para 13.
14 Fose para 14.
15 Fose v Minister of Safety and Security 1996 2 BCLR 232 (W).
16 Fose paras 3-4 with regard to the procedure to appeal directly to the Constitutional Court.
17 Esselen v Argus Printing and Publishing Co Ltd 1992 3 SA 764 (T) para 771H.
18 Esselen v Argus Printing and Publishing Co Ltd 1992 3 SA 764 (T) para 771H
19 Fose para 16.
20 Fose para 73.
21 Fose para 19.
22 Fose para 19.
23 Fose para 20. It appears as if the court is supporting a casuistic approach. See Member of the Executive Council: Welfare v Kate 2006 4 SA 478 (SCA) para 25. Also see the discussion in 2.4 below.
24 The court discussed the law in the following jurisdictions: United States (Fose paras 25-37); Canada (paras 38-41); United Kingdom (paras 42-45); Trinidad and Tobago (para 46); New Zealand (paras 47-49); Ireland (para 50); India (para 51); Sri Lanka (para 52); Germany (para 53); European Convention for the Protection of Human Rights (para 54).
25 These differences are discussed in Fose para 58.
26 Fose para 60. Also see Price 2015 Acta Juridica 324-325.
27 Fose para 60.
28 Fose para 63, quoting Van der Walt Delict 5-7. Also see Klopper Damages 250, where he states that an award for constitutional damages over and above delictual damages would be tantamount to an award for punitive damages.
29 Fose para 65.
30 See Fose para 65 (a)-(l) for the full list.
31 Fose para 72, quoting Didcott J in S v Vermaas; S v Du Plessis 1995 3 SA 292 (CC) para 16.
32 Fose para 72.
33 Fose para 75 and 76.
34 Zitzke 2015 CCR 289.
35 Olitzki Property Holdings v State Tender Board 2001 3 SA 1247 (SCA) (hereafter Olitzki).
36 Olitzki para 4.
37 Olitzki para 1.
38 The interim Constitution.
39 Olitzki para 8.
40 Olitzki para 40. The plaintiff claimed that its option over the building did not last long enough; hence it did not make use of review proceedings.
41 Olitzki para 40.
42 Olitzki para 40.
43 Olitzki para 41.
44 Olitzki para 41. Also see the quotation from Fose para 72, quoted in para 41 of the present case.
45 Olitzki para 42.
46 Olitzki para 42.
47 Olitzki para 43.
48 President of the Republic of South Africa v Modderklip Boerdery (Pty) Ltd 2005 5 SA 3 (CC) (hereafter Modderklip). See Dendy "Damages" para 10.
49 Modderfontein Squatters, Greater Benoni City Council v Modderklip Boerdery (Pty) Ltd (Agri SA and Legal Resources Centre, Amici Curiae); President of the Republic of South Africa v Modderklip Boerdery (Pty) Ltd (Agri SA and Legal Resources Centre, Amici Curiae) 2004 6 SA 40 (SCA) (hereafter Modderklip SCA).
50 The factual background to the case is well-known and will not be discussed here in detail. It is set out in the judgment of Langa ACJ (as he was) in Modderklip paras 29.
51 Modderklip para 68.
52 Modderklip para 20, quoting Modderklip SCA para 43 (fn 33).
53 Modderklip para 20.
54 Modderklip para 20.
55 Modderklip para 54.
56 Modderklip para 55.
57 Modderklip para 57 referred to Fose para 60, where the court noted that in certain circumstances damages would be an appropriate remedy.
58 Modderklip para 60.
59 Modderklip para 60.
60 Modderklip para 21, quoting Modderklip SCA para 43.
61 Expropriation Act 63 of 1975.
62 Modderklip para 99. See para 58, where it was held by Langa ACJ (as he then was), with reference to Fose para 69, that appropriate leave "must necessarily be effective".
63 De Vos and Freedman South African Constitutional Law 461.
64 64 Member of the Executive Council: Welfare v Kate 2006 4 SA 478 (SCA) (hereafter Kate). See paras 131 and further. The courts also awarded constitutional damages in circumstances similar to Kate in Mahambehlala v MEC for Welfare, Eastern Cape 2001 1 SA 342 (SE) and Mbanga v MEC for Welfare, Eastern Cape 2002 1 SA 359 (SE). These latter two cases are not discussed here. Also see Dendy "Damages" para 10 fn 1.
65 Kate v MEC for the Department of Welfare, Eastern Cape 2005 1 SA 141 (SECLD).
66 Kate para 17.
67 Kate para 17.
68 Kate para 17.
69 Kate para 23.
70 Kate para 23. Fose para 60, quoted in 2.1 above, noted that in certain circumstances damages would be an appropriate remedy.
71 Kate para 24.
72 Kate para 25. Also see Fose para 23, where the court held that its decision was made with regard to the facts of that case, and not to decide about the availability of constitutional damages in general.
73 Kate para 25.
74 Kate para 26.
75 Kate para 27.
76 Kate para 27.
77 See the Residents and Thubakgale cases and the discussion in 3.
78 Kate para 27.
79 Kate para 32.
80 Kate para 33.
81 Kate para 33.
82 Kate para 33.
83 Kate para 33.
84 De Vos and Freedman South African Constitutional Law 462.
85 Minister of Police v Mboweni 2014 6 SA 256 (SCA) (hereafter Mboweni).
86 Mboweni para 3.
87 Mboweni para 2.
88 Mboweni para 3.
89 The case was reported as M v Minister of Police 2013 5 SA 622 (GNP).
90 Mboweni para 4.
91 Mboweni para 4.
92 Mboweni para 4.
93 Mboweni paras 5-10.
94 Mboweni para 6.
95 Mboweni para 94. The question which arises here is whether wrongfulness is an element of the infringement of a constitutional right and further, which test would be used.
96 Mboweni para 20.
97 Mboweni para 21.
98 Law Society of South Africa v Minister for Transport 2011 1 SA 400 (CC) para 74 cited in Mboweni para 21; Dikoko v Mokhatla 2006 6 SA 235 (CC) para 91 cited in Mboweni para 21. See Mhlantla J's majority judgment in Residents.
99 Mboweni para 22.
100 Mboweni para 22.
101 Mboweni para 24.
102 Mboweni para 26.
103 RK v Minister of Basic Education 2020 2 SA 347 (SCA) (hereafter RK).
104 RK paras 9-14.
105 RK para 17.
106 See the discussion in 2.4. The court in RK also referred to two other cases similar to Kate where constitutional damages had been awarded, namely Mahambehlala v MEC for Welfare, Eastern Cape 2001 1 SA 342 (SE) and Mbanga v MEC for Welfare, Eastern Cape 2002 1 SA 359 (SE); for the sake of brevity these cases are not discussed.
107 See the discussion above in 2.3.
108 See the discussion above in 2.1.
109 RK para 58.
110 RK para 58.
111 RK para 59.
112 Fose 72 quoted in RK para 59.
113 Fose 72 quoted in RK para 59.
114 RK para 60, reference to the Canadian case of Vancouver (City) v Ward [2010] 2 SCR 28.
115 RK para 61, reference to the New Zealand cases of Dunlea v Attorney-General [2000] 3 NZLR and Liston-Lloyd v The Commissioner of Police [2015] NZHC 2614.
116 RK para 61, reference to the Irish cases of Kennedy v Ireland [1987] IR 587 and Conway v Irish National Teachers Organisations [1991] 2 IR 305.
117 See the discussion below.
118 RK para 62.
119 RK para 63.
120 RK para 63.
121 RK para 63.
122 Arbitration Award between Families of Mental Health Care Users Affected by the Gauteng Mental Marathon Project (Claimants) and National Minister of Health of the Republic of South Africa, Government of the Province of Gauteng, Premier of the Province of Gauteng, Member of the Executive Council of Health: Province of Gauteng (Respondents) http://www.saflii.org/images/LifeEsidimeniArbitrationAward.pdf accessed 13 March 2023 (hereafter the Life Esidimeni arbitration) before Justice Dikgang Moseneke.
123 Zitzke 2020 TSAR 419.
124 Life Esidimeni arbitration para 2.
125 Office of the Health Ombud 2017 http://healthombud.org.za/wp-content/uploads/2017/05/FINALREPORT.pdf.
126 Life Esidimeni arbitration para 3.
127 Life Esidimeni arbitration para 5.
128 Life Esidimeni arbitration para 10.
129 Life Esidimeni arbitration paras 17(c) and 19(c).
130 Life Esidimeni arbitration para 212.
131 Life Esidimeni arbitration para 212.
132 Life Esidimeni arbitration para 212.
133 See the discussion in 2.2.4 above.
134 Life Esidimeni arbitration para 213 - see 2.5 above.
135 Dikoko v Mokhatla 2006 6 SA 235 (CC).
136 Law Society of South Africa v Minister for Transport 2011 1 SA 400 (CC).
137 Life Esidimeni arbitration para 215; Mboweni para 21.
138 Life Esidimeni arbitration para 216.
139 Life Esidimeni arbitration para 216.
140 Life Esidimeni arbitration para 216.
141 Life Esidimeni arbitration para 217.
142 Life Esidimeni arbitration para 217.
143 Life Esidimeni arbitration para 217.
144 Life Esidimeni arbitration para 217.
145 Life Esidimeni arbitration para 218.
146 Life Esidimeni arbitration para 219.
147 Life Esidimeni arbitration para 226.
148 Klopper Damages 250. Neethling and Potgieter Law of Delict 343 fn. 14 refers to the damages awarded as "substantial constitutional bereavement damages".
149 Zitzke 2020 TSAR 439.
150 Ngomane v Johannesburg (City) 2020 1 SA 52 (SCA) (hereafter Ngomane).
151 Section 25(1) of the Constitution provides as follows: "No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property."
152 Section 26(3) of the Constitution provides that "[n]o one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions."
153 Ngomane para 3.
154 Ngomane paras 4 and 5.
155 Ngomane para 7.
156 Ngomane para 8.
157 Tswelopele Non-Profit Organisation v City of Tshwane Metropolitan Municipality 2007 6 SA 511 (SCA).
158 Ngomane para 11.
159 Ngomane para 18.
160 Ngomane para 27.
161 Ngomane para 28.
162 Zitzke 2020 Litnet 800. Own translation from Afrikaans, the original of which reads as follows: "ons oor die algemeen kan beskryf as 'n grondwetlik-transformatiewe benadering tot bronne van die deliktereg en regshulp."
163 Jafta J in Residents para 128.
164 Residents of Industry House, 5 Davies Street, New Doornfontein, Johannesburg v Minister of Police 2023 3 SA 329 (CC).
165 See Residents paras 6-18 for a detailed exposition of the raids that were conducted on the homes of the twelve applicants.
166 South African Police Service Act 68 of 1995.
167 Residents para 19.
168 Residents para 27.
169 Residents para 27.
170 Residents para 28 and further.
171 Residents para 89.
172 Residents paras 1 and 2.
173 Residents para 90.
174 Fose para 60 quoted in Residents para 92.
175 Residents para 92.
176 Residents para 92.
177 Residents para 92.
178 Residents para 96.
179 Residents para 97.
180 Residents para 97.
181 See discussion in 2.3.
182 Residents para 99. See Modderklip para 58.
183 Residents para 99 as opposed to delictual damages.
184 Residents para 101.
185 Residents para 103.
186 Residents para 104.
187 Residents para 104.
188 Residents paras 104 and 105.
189 Residents para 103.
190 Residents para 104. See Modderklip in 2.3 above.
191 Residents para 110.
192 Residents para 113.
193 Residents para 113.
194 Residents para 113.
195 Residents para 114.
196 Residents para 118.
197 Residents para 118.
198 Residents para 118.
199 Residents para 103.
200 Residents para 119. See Fose para 65. Also see 2.1 above.
201 Residents para 119.
202 Residents para 120.
203 It is not clear whether Mhlantla J refers here to constitutional damages in addition to delictual remedies - if not, then it should be noted that delictual remedies will also "burden the public purse with financial liability".
204 Residents para 120.
205 Residents para 120. It is not clear whether "just and equitable" would be a new ground for the availability of constitutional damages.
206 Residents para 127 and further.
207 Residents para 128.
208 Residents para 148.
209 Residents para 148.
210 Residents para 150.
211 Residents para 150.
212 Residents para 151.
213 Residents para 152.
214 Residents para 152. It is not clear what this "clear and objective formula" is.
215 Residents para 153; see the discussion of Thubakgale below.
216 Residents para 155. It is not clear from the judgment why delictual damages cannot be claimed in this instance, unless there if a problem proving fault.
217 Residents para 157.
218 Residents para 157.
219 Housing Act 107 of 1997.
220 Department of Human Settlements National Housing Code.
221 Thubakgale v Ekurhuleni Metropolitan Municipality 2022 8 BCLR 985 (CC).
222 Thubakgale v Ekurhuleni Metropolitan Municipality 2018 6 SA 584 (GP) (Thubakgale I).
223 Ekurhuleni Metropolitan Municipality v Thubakgale (125/2018) [2018] ZASCA 76 (31 May 2018) (Thubakgale II).
224 Ekurhuleni Metropolitan Municipality v Thubakgale (High Court, Gauteng Division, Pretoria) (unreported) case number 39602/2015 of 13 July 2020 (Thubakgale III).
225 Thubakgale para 25.
226 See Liebenberg 2022 CCR 147 for a summary of Jafta J's judgment.
227 Thubakgale para 121.
228 Thubakgale paras 121-122.
229 See however Liebenberg 2022 CCR 148.
230 Thubakgale paras 123-144.
231 Thubakgale para 145 and further.
232 Mazibuko v City of Johannesburg 2010 4 SA 1 (CC)
233 Thubakgale para 146; Mazibuko para 47.
234 Thubakgale paras 148-149.
235 Thubakgale para 147.
236 Thubakgale para 147.
237 Thubakgale para 150.
238 Thubakgale paras 151 and 152
239 Thubakgale para 156.
240 Thubakgale para 160.
241 Thubakgale para 162.
242 Thubakgale para 162.
243 Thubakgale para 164.
244 Thubakgale para 169.
245 In his dissenting judgment - see below.
246 Thubakgale para 171.
247 Thubakgale para 178. See Liebenberg 2022 CCR 147.
248 Housing Act 107 of 1997.
249 Department of Human Settlements National Housing Code para 179. In Thubakgale para 178 Jafta J describes constitutional subsidiarity as follows: "In terms of this principle, where legislation has been passed to give effect to a right in the Constitution, litigants must base their claims on that legislation and may not rely directly on the Constitution."
250 Thubakgale paras 180 and 181.
251 Thubakgale para 183.
252 Thubakgale para 189.
253 See Fose paras 63 and 63.
254 Thubakgale para 192.
255 Thubakgale para 191.
256 Thubakgale para 120.
257 Thubakgale paras 5-6.
258 Thubakgale para 6.
259 Thubakgale para 7.
260 Thubakgale para 42.
261 Including a declaration of rights or an interdict.
262 Thubakgale para 42.
263 Thubakgale para 42.
264 Thubakgale para 42.
265 Thubakgale para 43.
266 Thubakgale para 43. See Modderklip.
267 Thubakgale para 44.
268 Thubakgale paras 61 and 63.
269 Thubakgale para 64.
270 Thubakgale para 69.
271 Thubakgale para 70.
272 Thubakgale para 68.
273 The actio iniuriarum and a remedy in terms of the Promotion of Administrative Justice Act 3 of 2000. Thubakgale para 77.
274 See Thubakgale para 78.
275 Thubakgale para 79.
276 Thubakgale para 83.
277 Thubakgale para 83.
278 Thubakgale para 84.
279 Thubakgale para 84.
280 Thubakgale para 85.
281 Thubakgale para 87.
282 Thubakgale para 99.
283 Thubakgale para 90 and further; also see the discussion above.
284 Thubakgale para 90.
285 Thubakgale para 90.
286 See the discussion above.
287 Thubakgale para 93.
288 Refer to Fose and other cases. However, also see Modderklip and Olitzki. In the latter it was held that constitutional damages should not be a remedy of last resort.
289 Residents para 157.
290 Kika Fashioning Judicial Remedies 131. Also see Price 2015 Acta Juridica 325.
291 Residents para 104.
292 See Residents para 148.
293 Residents para 148.
294 See Jafta J's majority judgment in Thubakgale and the discussion above in 3.2.2.1. See Majiedt's minority judgment and the discussion in 3.2.2.2.
295 Liebenberg 2022 CCR 148.
296 See Residents para 101. Also see Olitzki para 42 and the discussion in 2.2.2 above. The question arises, however, whether the interest awarded in Kate did not amount to damages for pure economic loss.
297 Residents para 155.
298 Fose discussion on punitive damages in paras 62-63, 65, 72.
299 See 2.9.
300 Thubakgale paras 182 and 183. Also see Majiedt J in Thubakgale paras 91 and 92.
301 See, however, s 38 read with s 172 of the Constitution.
302 Residents para 151.
303 Jafta J in Thubakgale para 179. Eskom Holdings SOC Ltd v Vaal River Development Association (Pty) Ltd 2023 5 BCLR 527 (CC) paras 230 and further regarding the principle of subsidiarity and the references to the cases under discussion, as well as inter alia Mazibuko v City of Johannesburg 2010 4 SA 1 (CC); My Vote Counts NPC v Minister of Justice and Correctional Services 2018 5 SA 380 (CC). See Zitzke 2015 CCR 289 and the discussion below in 4.2.
304 De Vos and Freedman South African Constitutional Law 461.
305 Fose para 72; Olitzki para 30; Residents para 120; Thubakgale para 191.
306 Kate para 32.
307 See 2.1 above.
308 Fose para 19.
309 Fose para 60. Also see Price 2015 Acta Juridica 324-325.
310 Fose para 60.
311 See the discussion under 2.1.
312 Thubakgale para 178.
313 Esorfranki Pipelines (Pty) Ltd v Mopani District Municipality 2023 2 SA 31 (CC).
314 Zitzke 2015 CCR 260, 281 and further.
315 Zitzke 2015 CCR 260, 261 and further.
316 Zitzke 2015 CCR 260; 285 and further.
317 Eskom Holdings SOC Ltd v Vaal River Development Association (Pty) Ltd 2023 5 BCLR 527 (CC) (hereafter Eskom).
318 Eskom para 149.
319 South African Human Rights Commission obo South African Jewish Board of Deputies v Masuku 2022 4 SA 1 (CC) para 102, quoted in Eskom para 236.
320 See 2.1 above.
321 Price 2015 Acta Juridica 325.
322 See 2.3 above.
323 See 3.2 above.
324 See 3 above.