Abstract

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were awarded and in others not, the courts in most of those instances having opted for delictual damages.5 In his unpublished doctoral thesis Kika states that "[t]he co-existence of constitutional damages with delictual damages is one of the most contentious issues in the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 Ltd,17 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 Modderklip.71

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 Zealand115 and 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 Arbitration122

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 Mboweni,133 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 Doornfontein, 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 alia170 leave 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.173 He 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 socio-economic 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.217 Constitutional 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.241 Where 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 socio-economic 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."252 However, as stated in Fose our law does not recognise punitive damages.253

(4) The damages would not have a deterrent effect on the officials.254 Instead 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.270 Majiedt 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.284 Furthermore, 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,305

while 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".313 This 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

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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

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List of Abbreviations