Constitutional Damages Research Articles

Constitutional Damages in South Africa: A Transformative Approach

Abstract This article explores when constitutional damages can and should be awarded in South African law. The history of the divergence between common-law damages and constitutional damages (and the uncertainty that might arise about which type of damages a victim of an injury ought to pursue) is explored. Thereafter, a critical and constructive interpretation of the case law on constitutional damages is provided, which sets the scene for a precedent-inspired three-step approach to constitutional damages adjudication. This approach is then defended as a transformative constitutional one which squares easily against the notion of constitutional adjudicative subsidiarity.

Constitutional Damages – a Stagnant or a Changing Landscape?

Constitutional Damages – a Stagnant or a Changing Landscape?

The Conundrum of Two Fellows in The Same Ship: A Comparative Legal Analysis of The Duplicity of Damages in South Africa

Abstract South African law recognizes the common law right of the plaintiff to institute a claim for damages arising from loss caused by the delictual conduct of the defendant. In addition to the claim for common law damages for pain and suffering, insult, shock, past and future medical expenses, and loss of enjoyment of the amenities of life, depending on the nature of the delict, the plaintiff also has the right to claim constitutional damages for the infringement of constitutional rights. On that score, the South African Constitution, 1996 empowers the courts to ‘grant appropriate relief’ and to make ‘just and equitable’ orders in the context of common law and constitutional damages. This has resulted in the duplicity of damages in our law without clear guidance on how these two delictual “fellows” should interact in practical scenarios. Further, the courts have dragged their feet when it comes to the application of constitutional damages largely due to their orthodox approach which militates against the development of constitutional damages in South Africa. This article proposes avenues which enable the courts to take a coordinated approach in the application of these two remedies. It argues that in determining quantum for damages, the court should take a functional and pragmatic approach which is based on the ethos of fairness and equity over and above common law tenets.

Michał Ziółkowski, Odpowiedzialność odszkodowawcza za niezgodne z prawem działanie władzy publicznej. Studium z prawa konstytucyjnego, Warszawa 2021, ss. 514

In the book State Libility for Unlawful Action of Public Authority: Constitutional Law Study its autor Michał Ziółkowski presents an autonomus consitutional interpretation of art. 77 of the Polish Constitution. This is deep study of the constitutional subjective right, unlaful action of the public authority in consitutional meaning and context, constitutional damages, all constitutional requirements of the State liability, including responsibility for action of the Polish Constitutional Court. The review book is important within the framework of the consitutional doctrine and has a fundamental influence on the interpretation and the application of legal provisions concerning State liability.

IMPACT OF THE KOMAPE JUDGMENT ON THE SOUTH AFRICAN COMMON LAW OF DELICT: AN ANALYTICAL REVIEW Komape v Minister of Basic Education [2020] 1 All SA 651 (SCA); 2020 (2) SA 347 (SCA)

In a rare case where the State is mulcted with delictual damages for failure to discharge their constitutional obligations to provide infrastructure in public schools, such as adequate sanitation facilities, the Supreme Court of Appeal awarded damages for emotional shock to the parents and siblings of a Grade-R learner who had drown in a pit-toilet. At the same time, the Court refused to develop the Constitution, 1996, to award separate damages for pure grief and bereavement not accompanied by serious psychological lesions, as well as constitutional damages. The judgment has been widely welcomed by children rights activities and is regarded as heralding a new era in holding the State (education officials) accountable for failure to fulfill their constitutional obligations towards learners, especially regarding the eradication of pit latrines in public schools.
 This note gives an analytical review of the judgment and is impact on the (development of) the common law delict, in particular, in the area of emotional shock and psychological injury. In the process, the case note specifically takes interest in the rationality for the SCA's rejection of the Appellants' argument for the development of the common law to award damages for a pure grief and bereavement (in addition to damages for emotional shock and psychological lesions) and constitutional damages. In the end, the case note concurs with the Court that it was unnecessary in the circumstances of the case to develop the common law. In fact, it is asserted in this note that the common law delict of emotional shock, in its current form, adequately compensate victims. Therefore, the SCA was right to reject the argument to develop the common law, as well as the awarding of constitutional damages.

STATE LIABILITY VIS-À-VIS VICTIMS OF CRIME IN POST-1994 SOUTH AFRICAN CASE LAW – SOMETHING NEW OR A REINVENTED WHEEL?

Since 1994 South African courts have dealt with numerous cases where victims of crime have sued the State for its failure to protect them from criminal violation. This article explores these cases in order to ascertain the juristic nature of this liability and the criteria applied in ascertaining whether said liability exists under given circumstances. The author concludes that the legal remedy granted victims is based on the normal rules of the law of delict. Despite the constant reference by judges to constitutional imperatives, the matter is guided by the normal delictual criteria of reasonableness and public policy which, granted, have to be ascertained in deference to constitutional norms. The essential test has thus not changed since to the inception of the Constitution. Nevertheless, it appears that the courts have drawn fresh impetus from the Constitution in granting the claim of the victim of crime. South African courts have thus far shown opposition to the granting of punitive or constitutional damages to victims of crime though the possibility of the granting thereof in future has not been ruled out unequivocally.

CURRENT ISSUES OF CONSTITUTIONAL DAMAGES LITIGATION: A CONTEXTUAL ANALYSIS OF RECENT COMMONWEALTH DECISIONS

The Privy Council judgments in James v Attorney General [2010] UKPC 23 and Graham v Police Service Commission [2011] UKPC 46 have advanced the constitutional damages jurisprudence not only in Trinidad and Tobago but also the Commonwealth since Attorney General v Ramanoop [2005] 2 WLR 1324 (PC). In their recent decision in Seepersad v Attorney General [2012] UKPC 4, their Lordships answered two crucial questions hitherto not contested in South Africa or any other Commonwealth court relating to a right to a constitutional remedy and a constitutional right to damages. They held that constitutional damages were the appropriate relief as against those cases where constitutional relief were sought in non-constitutional circumstances. The Supreme Court of Canada has equally contributed to the subject by holding in Canada (Attorney General) v TeleZone Inc [2010] 3 SCR 585 (SCC) that a claimant for Charter damages does not have to obtain judicial review before seeking such relief. This article argues that, while TeleZone has restored the citizen’s right of access to the courts by removing unnecessary procedural obstacles to Charter damages claim, the Privy Council has, through Seepersad, once more laid down principles which South African and other Commonwealth courts may freely refer to if and when similar issues arise in constitutional damages litigation in their jurisdictions.

Compensating Landowners? The State's (Limited) Duty toward Landowners in Delayed Eviction Matters

The unlawful occupation of private land creates a tension between the interests of the unlawful occupiers to avoid homelessness and the landowner to regain control of its property. To balance the interests and rights of the occupiers and the landowners, courts have relied on the municipality, due to its constitutional housing duty, to provide the unlawful occupiers with alternative accommodation. The provision of alternative accommodation prevents homelessness, while at the same time allowing the landowner to regain control of its property.
 In response to demands by unlawful occupiers that they provide alternative accommodation, municipalities have either failed to cooperate or argued that they are unable to accommodate the unlawful occupiers immediately due to resource constraints. This has led to delays in eviction matters to the detriment of landowners. Only in one delayed eviction matter did the Constitutional Court order relief for the landowner. It ordered the municipality to pay constitutional damages to the landowner. After this order, scholars have advocated for similar relief to be granted in other delayed eviction matters. This article aims to add to that debate, by determining under what circumstances an award of constitutional damages in such matters would be appropriate, just and equitable, as is required of a constitutional remedy.

The feasibility of the victims of corruption's claim for constitutional damages against corrupt public officials in South Africa

South Africa, just like other countries, is grappling with corruption in the private and public sectors. For this reason, the state has adopted various measures aimed at fighting this scourge. Part of the measures adopted, in this regard, are the legal measures. This article argues that, in addition to the legal measures in place, there is a feasibility for victims of corruption to pursue a claim for constitutional damages arising from corruption by public officials. This contention is based on the fact that constitutional damages is an appropriate remedy for corruption cases involving public officials.

The Life Esidimeni arbitration and the actuarial quantification of constitutional damages

In the instance of a claim for constitutional damages where an aggrieved party makes a claim against the State for damages resulting from its failure to uphold a constitutional imperative, how are such damages to be quantified? Under South African law there is no formula and extremely limited precedent outlining the calculation of constitutional damages. This paper will consider the Life Esidimeni Arbitration proceedings against the Gauteng Department of Health pursuant to the tragic mass death, torture and disappearance of mental health care users from the perspective of an actuary acting as an expert witness for the families of the deceased. There is no manual for calculating the monetary value of a life. Notwithstanding, this paper will set out the considerations made to reach monetary compensation as argued by the legal representatives of the families, as substantiated by the actuary and as eventually awarded by the Arbitrator.Keywords: Constitutional damages; fairness; equity; comparative law; expert witness; unlawful death; torture; compensation; arbitration; life expectancy; net discount rate; pro bono

Modderklip Revisited: Can Courts Compel the State to Expropriate Property where the Eviction of Unlawful Occupiers is not Just and Equitable?

This article examines whether, to give effect to the section 26 constitutional right to adequate housing, courts can (or should) compel the state to expropriate property in instances when it is not just and equitable to evict unlawful occupiers from privately-owned land (unfeasible eviction). This question was first raised in the Modderklip case, where both the Supreme Court of Appeal (Modder East Squatters v Modderklip Boerdery (Pty) Ltd; President of the Republic of South Africa v Modderklip Boerdery (Pty) Ltd 2004 3 All SA 169 (SCA)) and Constitutional Court (President of the Republic of South Africa v Modderklip Boerdery (Pty) Ltd 2005 5 SA 3 (CC)). dodged the question, opting instead to award constitutional damages to the property owner for the long-term occupation of its property by unlawful occupiers. It is clear from cases such as Ekurhuleni Municipality v Dada 2009 4 SA 463 (SCA), that, mindful of separation of powers concerns, courts have until very recently been unwilling to order the state to expropriate property in such circumstances. At the same time, it is increasingly evident that the state has failed to fulfil its constitutional obligations to provide alternative accommodation for poor communities. In this context, this article argues that there is a growing need for the judiciary to consider, as part of its role to craft effective remedies for constitutional rights violations, the issue of judicial expropriation. It does so, first, through an analysis of the relevant jurisprudence on evictions sought by private landowners and, second, through an in-depth engagement of the recent Western Cape High Court case, Fischer v Persons Listed on Annexure X to the Notice of Motion and those Persons whose Identity are Unknown to the Applicant and who are Unlawfully Occupying or Attempting to Occupy Erf 150 (Remaining Extent) Phillipi, Cape Division, Province of the Western Cape; Stock v Persons Unlawfully Occupying Erven 145, 152, 156, 418, 3107, Phillipi & Portion 0 Farm 597, Cape Rd; Copper Moon Trading 203 (Pty) Ltd v Persons whose Identities are to the Applicant Unknown and who are Unlawfully Occupying Remainder Erf 149, Phillipi, Cape Town 2018 2 SA 228 (WCC).
 

Dynamics of the Obligation to Register Birth Certificates as a part of the Right to Issuance Population Documents

The state is obliged to protect and recognise the legality of a person’s birth. Registration of birth in the form of a birth certificate is proof of one’s origin issued by the competent authorities. However, in practice, the time limit of one year given for such registration has proven a burden to citizens, such that complaint of constitutional damages has been brought before the Constitutional Court of Indonesia. Population administration is regulated under Act Number 23, Number 23 Year 2006 and amended by Act Number 24, Number 24 Year 2013 in accordance with Constitutional Court Decision 18/PUU-XI/2013. In order to take an active role in the registration of births, the government and local governments have to remove the deadline to report the birth of a child, as stipulated by the district court and as an effort to improve state responsibility. This requires that citizens have the "right to be heard" and, in future, there should be an integrated service from the government for the registration of births.

The Right of the Child to Care and Constitutional Damages for the Loss of Parental Care: Some Thoughts On M v Minister of Police and Minister of Police v Mboweni

In the a quo judgment in M v Minister of Police a radical new approach was followed in respect of claims for loss of parental care. The issue before court was whether a child whose parent has died as a result of the wrongful conduct of the South African Police Services may sue for damages arising from the child's constitutional right to parental care in terms of section 28(1)(b). The question which the Court had to answer was whether a claim for damages may be instituted on the grounds that children are as a result of the wrongful death of their father deprived of their constitutionally entrenched right to parental care. This contribution reflects on the reasoning of the different courts and the relevance of same for the debate regarding the care of children in terms of section 28(1)(b) of the Constitution and section 1 of the Children's Act 38 of 2005.

The Implications of Negligent Misrepresentation in Law of Delict: A Judicial Rendition

This paper is based upon a literature review. Its aim is to forward a review on the evolution of negligent misrepresentation especially in the South African jurisdiction. The birth of negligent misrepresentation stemmed from Roman law under the guise of the action legis Aquiliae. This action was confined to claims of personal damage and damage to property. The Roman-Dutch law attempts an extension to this action, to every kind of loss sustained by a person in consequence of wrongful acts of another. The Aquilian action has reached its end development in South African law, where compensation for negligent misrepresentation may be claimed ex lege Aquilia. As Aquilian liability results from every culpable and wrongful act which causes patrimonial damage, it is adumbrated that the law of delict will collide with the constitutional demands of the South African law. This paper suggests that the South African law of delict should developed and used as an instrument to serve constitutional purposes. South African Constitutional cases, such as Fose v Minister of Safety and Security and Carmichele exert that if the law of delict does provide a remedy, it is inappropriate to award additional constitutional damages. Foreign case law of Canada in Hedley Byrne & Co v Heller advocates a fresh approach with regard to negligent misrepresentation which relies heavily on Mukheiber v Raath case law. Original Research Article Swartz et al.; JSRR, 5(7): 532-541, 2015; Article no.JSRR.2015.120 533

Transparency, trust and security: An evaluation of the insurer's precontractual duties

Transparency in insurance law attaches to the rights and duties of the parties, the relationships between insurers, insurance intermediaries such as agents and brokers, insurance supervisory law and insurance dispute resolution procedures. Regarding the rights and duties of the insurer and the prospective policyholder, it requires insurers to disclose precontractual information in a timely manner that is clear, understandable, legible and unambiguous. Transparency as a value is incredibly important in insurance contracts. This contribution focuses exclusively on the insurer's duty of disclosure during precontractual negotiations. Although the insured's duty of disclosure has enjoyed more attention in the past, the duty clearly applies to the insurance proposer as well as the insurer. The purpose of this contribution is to evaluate the nature and extent of the insurer's transparency duties as informed by both common and statutory laws.The insurer's duty is derived primarily from the statutory rights of access to information in accordance with the provisions of the Constitution of the Republic of South Africa and the Promotion of Access to Information Act. It is furthermore supported by specific insurance consumer protection law found in the detailed provisions on mandatory disclosures in the Financial Advisory and Intermediary Services Act, the Long-term Insurance Act, the Short-term Insurance Act and, finally, the Policyholder Protection Rules issued in accordance with these acts. Strict rules on advertising can be found in the General Code of Conduct issued under the FAIS Act.The Act furthermore specifically targets the activities of insurance intermediaries in precontractual disclosures. The fact that insurance products and services have been exempted from the scope of the Consumer Protection Act from 28 February 2014 should not diminish the insured's right to rely on universal consumer protection principles as envisaged by South African insurance legislation. The insurer's duty to disclose is in the last instance also derived from the common law duty not to make misrepresentations by commission or omission. When negotiating an insurance contract, the insurer's duty to speak is not based on a general requirement of bona fides, but is recognised as an ex lege duty due to the involuntary reliance of the prospective insured on information supplied by insurers in the market. A lack of transparency should lead to the insurer's accountability. A failure to disclose material information or a disclosure of false information that goes to the root of the matter and that induces the prospective policyholder to buy the insurance product is recognised as an actionable misrepresentation. Statutory provisions do not diminish the common-law duty not to make misrepresentations, but provide details of the nature and extent of the information duty to provide clarity and legal certainty in the determination of the standards of transparency required in law. In addition, statutes provide for enforcement actions by regulators, orders that could affect the licence of the insurer and provide for punishable offences and penalties. In terms of common law, a misrepresentation by omission or commission renders the insurance contract wholly or in part voidable. The policyholder may decide to rescind the contract and claim restitution. He may also, in conjunction with rescission, or as an alternative when deciding to maintain the contract, claim delictual damages or even constitutional damages when judged by a court of law as appropriate relief. Statutory remedies include a monetary award by the Insurance Ombud. Even though such an award is capped at R800 000, it is submitted that it is preferred to a civil law damages claim.

THE DEVELOPMENT OF THE CONCEPT OF CONSTITUTIONAL DAMAGES

Any question dealing with the development of law requires, by its very nature, a discussion of sometimes factually distinguishable but legally interwoven points; thus focus is placed on the law of constitutional damages. Every effort is made to present cases in a manner that solidifies an argument of progress and refinement in relation to the concept of constitutional damages as a remedy. The anchor of this work is the Constitution. Fose, the locus classicus on constitutional damages, introduces the notion of constitutional damages as a remedy in South African litigation and is threaded throughout this work. Strong reliance is placed, inter alia, on the decisions of Kate, Modderklip, Dikoko, and Mboweni. The thrust of my argument is that the remedy of constitutional damages should only be relied upon when most appropriate and practical to ensure the vindication of constitutional rights in light of the facts of a particular case and alternative legal remedies.

Constitutional Damages and Proof of Damage: Recent Contributions of the Privy Council

Since the Privy Council laid down the principle in Maharaj v Attorney General of Trinidad and Tobago (2) that damages were an 'appropriate' relief in a claim for 'redress' for breach of fundamental rights entrenched in the Constitution of Trinidad and Tobago 1976, constitutional damages have been awarded by courts in the Commonwealth in a number of cases. In Maharaj itself, the appellant was committed for a term of imprisonment for contempt of court arising from an order made by a High Court Judge in violation of the principles of fundamental justice, and the State was held liable in damages. The damage in this case emanated from the deprivation of the right to personal liberty guaranteed the appellant by the Constitution of Trinidad and Tobago. In its more recent decision in Attorney General of Trinidad and Tobago v Ramanoop, the Privy Council however added a new dimension to claims for constitutional damages. In that case, a police officer patently abused his office in a naked show of police power in violation of a citizen’s right to personal liberty. The question was whether exemplary damages could be awarded by way of redress for contravention of the fundamental rights provisions in the Constitution of the Republic of Trinidad and Tobago. In holding that an 'additional award' rather than exemplary damages should be made in this case, the Privy Council made pronouncements which were to influence one way or another, the determination of the claim of the plaintiff in the subsequent case of James v Attorney General of Trinidad and Tobago. Here, two important issues arose in the consideration as to whether damages should be awarded in the event of a constitutional breach. The first is whether damage must be proved. The second is whether a constitutional breach requires to be marked by an award of damages.

Left Out in the Cold? Crafting Constitutional Remedies for the Poorest of the Poor

It is clear that the superior courts in South Africa have wide powers to fashion remedies. The socio-economic rights debate should now shift from the justiciability of the rights to crafting appropriate remedies for their infringement. There is reason to be critical of the relief granted in the Constitutional Court’s socio-economic jurisprudence. Litigants in cases such as Grootboom and Treatment Action Campaign have not received the shelter or drugs awarded in the judgments. To remedy this, the Constitutional Court should be concerned with remedies that assist in realising socio-economic rights and therefore primarily with affirmative remedies including declarations, damages, reading-in, mandatory interdicts and structural interdicts. Of these, constitutional damages and structural interdicts are particularly suitable as remedies that would increase government accountability. High Court judges are becoming increasingly adventurous in their choice of remedy and the Constitutional Court should follow suit. There is a positive new tendency on the part of the courts to move from ordering the friendly ‘soft’ remedy of a declarator to the unfriendlier ‘hard’ remedy of a structural interdict. An additional possibility, raised in the Eastern Cape High Court decision of Kate v MEC for Welfare, is to hold government officials in contempt of court for failing to obey court orders.

Ill Will and Class of One

Assuming that it does not discriminate based on race or another protected status, may a local government apply its laws differently to one person than to another without exposing itself to a constitutional claim and damages? Does it matter whether the reason for the different treatment is that the government decision maker simply does not like the disfavored person? The answers to these questions may be found in the U.S. Supreme Court's 2000 decision in the case involving septuagenarian Grace Olech, her broken well, and the Chicago suburb of Willowbrook.

Constitutional Damages and Corrective Justice: A Different View

SECTION 19831 is a federal statute which creates a fourteenth amendment action for damages against state and local government officials and local governments themselves.2 Over the years, its scope and coverage have increased dramatically, due in large measure to its broad language and to changes in fourteenth amendment doctrines relating to state action and incorporation.3 These developments have generated a great deal of controversy and have led to increased judicial reluctance to continue in this direction.4 Such reluctance can be seen in recent Supreme Court caselaw either refusing to expand, or