The Role of Resource Constraints in State Liability for Omissions

Abstract

The ambit of delictual liability against the State for negligent omissions resulting in physical harm has extended dramatically since the Constitutional Court case of Minister of Safety and Security v Carmichele. In such expansion, the courts have often mentioned that considerations regarding resource constraints play a role in the imputation of liability on the State, as well as in determining whether the State has been negligent. In examining four Constitutional Court cases from the period of 2013–2017, this article argues that the Constitutional Court’s approach to the State alleging resource constraints has largely been correct. Although many have seen the rapid expansion of liability as cause for concern (as public funds are increasingly being spent paying damages instead of improving public services) the Constitutional Court is correct in refusing to allow bald statements of resource constraints to defeat delictual claims or reduce damages in cases where the negligent omissions of the State have resulted in physical harm. In accordance with the value of accountability, where the State alleges it does not have the resources to fulfil its duties and prevent harm, the State must prove it.