The purpose and hence focus of this study is to explore the past and present state of the law relating to constitutional damages and, after analyzing the arguments in favour and opposed to the awarding of constitutional damages, to make recommendations in this regard.
The new constitutional dispensation has had a profound effect upon the common law of South Africa since the 1996 Constitution of South Africa was enacted; the two systems have had to discover how to function in unison. This dissertation will provide the reader with insight into the evolution of one phase in the protection of constitutional rights, as it becomes evident that delictual damages and constitutional damages operate in a synchronized fashion, essentially providing a new mechanism for providing damages.
This dissertation has the purpose of reviewing, analyzing and amalgamating relevant literature and specifically case law in this field, providing a relevant and succinct synopsis of the topic, something that is currently lacking in our law. The question of whether monetary damages are a just and equitable remedy in a constitutional state should shape our future thoughts and policies and indeed the way in which many recent judgments can be viewed.
This dissertation will endeavour to delve into and possibly answer the question as to whether monetary damages, normally in the form of interest as demonstrated by
61Supra.
Kate’s case62, is a just and equitable remedy for the breach of a social assistance right.63
Over the past sixteen years there has been a plethora of case law making in-roads in this area of law, with many courts giving contradictory judgments and with varying ratios for such decisions furthering the contention. It seems to have become more acceptable to provide monetary damages for a breach of a constitutional right, specifically a social assistance right, as demonstrated in cases such as Member of the Executive Council of the Department of Welfare v Kate64, Mahambehlala v Member of Executive Council of Welfare, Eastern Cape65and Mbanga v Member of Executive Council of Welfare Eastern Cape.66 Prior to this latest era67 there were equally as many cases in opposition68to ‘throwing money at the problem,’ as seen in the case of Fose v Minister of Safety and Security.69
The question, put differently, is whether providing monetary damages for a breach of a social assistance right is not merely throwing money at the problem.70 This approach could lead to bankruptcy of the State and no further solution to the clear and evident problem of disorganization within the organs of the State as illustrated by Kate’s case.71
The Constitution provides in Chapter 2, section 7 for the democratic values of human dignity, equality and freedom.72 The question to be posed is “Are the rights of
62Supra.
63 Noting that interest is merely an example of one of the forms of constitutional damages to be explored and not the only form of constitutional damages provided by South Africa's judiciary.
642006 SCA 46 (RSA).
652002 1 SA 342; 2001 JDR 327 (SE).
662001 JDR 328.
672006 – 2008.
68Tobani v Minister of Correctional Service NO [2000] 2 ALL SA 318 (SE), and Somyani v Minister of the Executive Council for Welfare, Eastern Cape, and Another SECLD case 1144/01 unreported judgment undated. Refer to point 6.3.infra.
691997 3 SA 786 (CC).
70Whether the ‘problem’ is the social assistance system or the lack of administrative capacity.
712006 SCA 46 (RSA).
72Section 7 (1) of the 1996 Constitution states:
“This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom.”
(2) “The state must respect, protect, promote and fulfill the rights in the Bill of Rights.”
individuals being protected, respected and promoted by the State by providing monetary compensation for an infringement of such rights, if there is still no further guarantee that such infringement will not occur again?”
All of the aforementioned issues and questions will be explored in a structured manner in this study by utilizing relevant case law as the foundation for the answering of these pertinent questions which form the purpose and objective of this dissertation.
1.4. METHODOLOGY
The methodological approach of research refers to the techniques utilized by the researcher in conducting her research and obtaining the end result.
This dissertation is based on a theoretical study. The theoretical study consists of review research methodology which was conducted throughout this dissertation, in that relevant case law and authorities were scrutinized and reviewed, which review forms the basis for this dissertation and the resultant conclusions obtained. The research methodology utilized consists primarily of information gathering by exploring the secondary sources73, as well as exploring the primary sources, in particular extensive use was made of case law and the ratios contained therein.74.
In particular, case law (refer to Annexure A annexed hereto) will be examined as it is pertinent to this area of research. In essence secondary sources of information will be used to direct the author to the pertinent primary sources, which will be scrutinized in terms of the research topic.
Administrative law will play an essential role in South Africa’s immediate future. The government must bring economic development, housing, infrastructure, better education and health care, and numerous other services to the vast majority of the population whom apartheid laws victimized and who subsist at Third World level. It must engage in redistributive programs, such as land restitution and affirmative action. It must strongly enforce laws prohibiting discrimination on the basis of race, sex, and sexual orientation, Asimow, ‘Administrative Law Under South Africa’s Final Constitution:
the Need for an Administrative Justice Act’ (1996) 113 SALJ 613, 613.
73Secondary sources are statements about the law by legal experts which are non-binding.
74Primary sources consist of the books of law and statements of law by State institutions, courts and or the legislature.
The appropriate case law will be interpreted, as illustrated above, with reference to the rationale of the decision; contradicting decisions will be examined in terms of the judicial reasoning. Socio-economic factors surrounding the circumstances of a relevant case are explored in order to establish the context in which the decision was reached.75
This dissertation does not exist in isolation, but has built upon what has been done previously in this area of law. Before embarking on this dissertation, the researcher has reviewed previous work produced in the field of constitutional damages, mainly consisting of case law (as detailed in Annexure A annexed hereto), this method is known as literature review and is a valid research method.
The preliminary research which was conducted to confirm the validity of this research included the analyzing of relevant case law with decisions relating to constitutional and delictual damages.
This dissertation consists of the analytical study of primary sources in the form of case law. In addition, secondary sources, in the form of books have been explored.
Methodologically, the researcher has attempted to provide recommendations for methods of dealing with the amalgamation of constitutional and delictual damages although it is evident that concrete recommendations are not at hand.
Comparative and historical research was undertaken in this dissertation in that case law ratios within South Africa’s history were compared and analyzed in order to determine the distinction between delictual and constitutional damages as well as the present amalgamation thereof.
Primary Sources:
This dissertation will consider inter alia, case law, the Constitution, Common Law and pieces of relevant legislation covering the area of research.
75 Blanche and Durrheim (editors), Research in Practice: Applied Methods for the Social Sciences (2002) 17.
Secondary Sources:
These include literature in the area of delict and constitutional law and constitutional damages in particular in the form of books and articles.
World Wide Web:
The internet is utilized widely to access information, in particular articles, relating to the research arena.
In conclusion, it is evident that the research embarked upon is relevant and useful as there has to date been no steadfast pronouncement on the issue as judgments conflict.
Hence the topic at hand is contentious and deserves exploration.