CONSTITUTIONAL DAMAGES: RECENT DECISIONS IN FOCUS
THIS BRIEF EXPLORES THE CONCEPT OF “CONSTITUTIONAL DAMAGES” IN SOUTH AFRICA AND WHY THEY WERE AWARDED TO THE LOVED ONES AND SURVIVORS IN THE LIFE ESIDIMENI ARBITRATION, BUT NOT TO MICHAEL KOMAPE’S FAMILY.
In the wake of egregious failures on the part of the State to fulfil its constitutional obligations, often leading to fatal consequences, the concept of “constitutional damages” has become increasingly relevant. A claim for damages in general is not new to law, but since the inception of the Constitution, courts have, on occasion, had to engage with whether “constitutional damages” are an appropriate remedy against the State for violating constitutionally entrenched rights – particularly as a means of vindicating these rights. Recently, the Life Esidimeni arbitration and the Michael Komape court case have had to deal with this question. While both cases were characterised by the tragic loss of life and each resulted in a finding that the State had violated rights vested in the Constitution, constitutional damages were only awarded to the Life Esidimeni claimants. The different outcomes raise questions around the nature, scope and application of constitutional damages.
CONSTITUTIONAL DAMAGES AS A REMEDY
The Constitution empowers a court to award “appropriate relief”, including a declaration of rights, where a right in the Bill of Rights has been violated.Early on in our constitutional democracy, in Fose v Minister of Safety and Security, the Constitutional Court was confronted with the question of constitutional damages as a means of affording “appropriate relief”. The claim for constitutional damages, which included “an element of punitive damages”, arose from a series of alleged assaults by the police, in violation of the right not to be tortured or subjected to cruel, inhuman and degrading treatment. The Court made it clear that the enquiry it was called to answer was confined to the facts of that specific case, particularly relating to the punitive nature of the damages claimed. It did not delve into questions of whether an action for constitutional damages exists generally in law or whether payment for damages constitutes “appropriate relief” for violating constitutional rights. Even so, four things concerning “appropriate relief” can be garnered from the judgment:
i. Courts should look at the circumstances of each case to determine what relief will best ensure the protection and enforcement of the rights enshrined in the Constitution and may, where necessary, formulate fresh remedies to do so.
ii. In several instances, the common law will be broad enough to encompass all the relief that will be “appropriate" to remedy a violation of constitutional rights.
iii. In principle, “appropriate relief” may include an award for constitutional damages “where such an award is necessary to protect and enforce [rights in the Bill of Rights]”.
iv. In a country where there is a heavy demand for scarce resources with which the state must fulfil several constitutional obligations, courts ought not to award punitive constitutional damages to a claimant who is already fully compensated for any loss or damage.
The Supreme Court of Appeal set out further guidelines for determining whether an order awarding constitutional damages is appropriate. A court should take into account, amongst other things, (i) the nature and relative importance of the rights that are in issue; (ii) alternative remedies that may be available to assert and vindicate the rights; and (iii) the consequences of breaching these rights for the claimants. Therefore, courts will look at the circumstances of each case to determine whether it is appropriate to award constitutional damages or whether an alternative remedy is sufficient to vindicate rights. Alternative remedies may include a declaration of rights, an interdict, a mandamus or any other relief that will ensure that constitutional rights are protected and enforced. While in some instances common law damages will provide effective relief, it does not mean that constitutional damages may only ever be raised as a remedy of last resort or as an indirect means of validating constitutional rights. It will depend on what is just and equitable in the circumstances.
WHAT DOES IT MEAN TO VINDICATE CONSTITUTIONAL RIGHTS?
Courts have a duty to “mould an order that will provide effective relief to those affected by a constitutional breach”, especially in South Africa “where so few have the means to enforce their rights through the courts, [that] it is essential that on those occasions when the legal process does establish that an infringement of an entrenched right has occurred, it be effectively vindicated.” The Constitution allows a court to do this by empowering it to “make any order that is just and equitable”. Without an order that brings effective relief to the parties and is just and equitable in the circumstances, constitutional rights cannot be vindicated.
In Kate, a case which dealt with an unreasonable delay on the part of the Department of Welfare in considering an application for a social grant, the Supreme Court of Appeal did this by granting constitutional damages directly based on two central considerations. First, the unreasonable delay violated a substantive constitutional right (the right to social assistance) rather than merely deviating from a constitutional normative standard. Secondly, the breach extended beyond the individual circumstances of the claimant and was representative of the State’s endemic failure to fulfil its constitutional obligations.
TRAGIC EVENTS THAT RESULTED IN OPPOSING FINDINGS
The Life Esidimeni arbitration
The Life Esidimeni arbitration detailed the fatal outcome of a decision taken by the Gauteng Health Department to terminate a long standing contract with the Life Esidimeni Care Centre. What ensued was the mass transfer of over 1 400 mental healthcare patients to various non-governmental organisations who were not duly licensed or qualified to function as caregivers to the transferred patients. As a result, patients were exposed to shockingly inadequate treatment and consequential trauma, culminating in the death of 144 patients.
The arbitration award found that several constitutional rights had been violated by the State’s actions. Given the extent of suffering and trauma that mental healthcare patients and their families had to endure, the violation of their rights, the complete disregard by government officials of their constitutional duties both in making the decision to terminate the Life Esidimeni contract and their actions following that decision, the Arbitrator held that the only way in which to vindicate the claimants’ constitutional rights was to grant an order awarding constitutional damages over and above the amount already awarded for emotional shock and trauma.
The Michael Komape court case
In a harrowing set of events, Michael Komape, a five year old boy attending his third day of grade R in Polokwane, faced an untimely and undignified death: he drowned in a faeces-infested pit toilet. Following the trauma of Michael’s death, the Komape family sought relief in the Limpopo Division of the High Court in Polokwane. The family claimed constitutional damages, amongst other things, against the Department of Basic Education for violating several constitutional rights. They argued that the nature and extent of the violations, together with the endemic failure of the State to provide proper sanitation facilities in rural schools, meant that an award for constitutional damages was the most appropriate way in which to vindicate the constitutional rights. These damages were claimed separately to the common law damages for emotional shock and trauma.
Even though the Court found that many constitutional rights were violated, it held that the constitutional damages claimed by the Komape family were “nothing short of punitive damages” and that, if successful, it would result in the family being over-compensated without the award serving the interests of society. This, despite the fact that their claim for emotional shock and trauma had been dismissed because the Court felt that no recognisable psychiatric injury flowing from the trauma had been proven. Instead, the Court held that a structural interdict to oblige the State to install proper sanitation facilities at rural schools in Limpopo was the only appropriate remedy to effectively vindicate the Constitution.
The Komape case highlights the stark reality facing many learners attending rural schools across South Africa – a consequence of the apartheid legacy and structural inequalities, exacerbated by poor governance – where inadequate sanitation facilities threaten the safety of school children.While the structural interdict was necessary and may go a long way in ensuring the rights of school children are protected and enforced, it does little to effectively vindicate the rights of the Komape family. Nor does it seem to be just and equitable to dismiss the family’s claim for shock and trauma, but simultaneously find that constitutional damages will enrich the family to the extent that it amounts to punitive damages. Considering the sustained and systemic failure of the State to fulfil its constitutional obligations, which goes beyond the individual circumstances of the family, an award for constitutional damages would not have over-compensated the family.
An award for constitutional damages serves an important role in providing appropriate relief to litigants by vindicating their constitutionally entrenched rights and providing effective relief. While alternative remedies are often suited to fulfil this role, courts cannot shy away from awarding constitutional damages directly where circumstances make it appropriate, particularly in cases of glaring and continuous state failure to adhere to its constitutional obligations. Essentially, courts should look to remedies that enforce and protect these rights. The remedy of constitutional damages does this by acting as a rectifying mechanism in circumstances of extreme state failure. By opting for a structural interdict, the Court did well to force the state into action. But turning to the interdict as the only means of vindicating the constitutional rights of school children across Limpopo, while not awarding constitutional damages for the grossly negligent inaction of the State, the Court provided little relief for the Komape family. An appeal against the judgment has been lodged, and one can only hope that the appeal will lead to an appropriate constitutional remedy.
Legal Researcher, Helen Suzman Foundation.
This article first appeared as an HSF Brief.
 Section 38 of the Constitution.
Fose v Minister of Safety and Security  ZACC 6 (Fose).
Fose at para 19.
Fose at para 58.
Fose at para 60.
Fose at para 72.
MEC for Department of Welfare v Kate  ZASCA 49 (Kate) at para 25.
Fose at para 19.
 See Law Society of South Africa and Others v Minister for Transport and Another  ZACC 25 at para 74 and Dikoko v Mokhatla  ZACC 10 at para 91.
Kate at para 27.
Modder East Squatters and Another v ModderklipBoerdery (Pty) Ltd, President of the Republic of South Africa and Others v ModderklipBoerdery (Pty) Ltd  ZASCA 47 at para 42. See also Fose at para 69 (Own emphasis added in the quotation).
Fose at para 69.
 Section 172(2)(a) of the Constitution.
MEC for Department of Welfare v Kate  ZASCA 49.
 Kate at para 27.
 The Arbitration award can be accessed here. For an outline of the award see https://hsf.org.za/publications/hsf-briefs/the-life-esidimeni-arbitration-the-legal-basis-for-granting-the-award.
 The judgment is cited as Komape and Others v Minister of Basic Education  ZALMPPHC 18 (Komape).
 Including the rights of a child, the rights to equality, human dignity and life as well as the right to education.
Komape at para 63.
Komape at paras 67-68.
Komape at paras 48-49.
 On 17 April 2018, the Department of Basic Education presented its 2018/19 Annual Performance Plan to the Portfolio Committee on Basic Education. In it, the Department addressed the concerns surrounding pit toilets in schools. According to the preliminary data presented by the Department, 5 779 schools across the country still have pit toilets. While not all these schools use the pit toilets as some are fitted with VIP toilets, the pit toilets need to be decommissioned and destroyed as they still present a safety hazard. In total, 3 532 pit toilets need to be decommissioned. A summary of the Portfolio Committee meeting can be accessed at https://pmg.org.za/committee-meeting/26122/.