Published Date: February 17, 2020


The discussions surrounding the phenomenon of constitutional damages has been gaining momentum in the past few years. Interestingly, this remedy is not a very new one in our law. In fact, it has been around since the dawn of our constitutional democracy. The rising momentum around this topic may be attributed to many factors, such as the ever-evolving litigation strategies, laws/precedents regularly set; and the State’s failure to render at least one satisfactory service to the public. Unsurprisingly, the latter is the most pertinent, as one can only claim for such damages where the State has breached a constitutional right. Few examples of where constitutional damages claim have been raised include:

  • Fose v Minister of Safety and Security: where the police had allegedly assaulted a claimant and thus subjected him to degrading, inhumane and cruel treatment.
  • High mast matter, Pretoria: where the municipality had failed to repair a malfunctional high mast light in Soshanguve and it fell on the children resulting to death of five (high mast matter, Pretoria).
  • Kate matter: where the MEC of Welfare in the Eastern Cape unreasonably delayed consideration of a social grant application.
  • Life Esidimeni Arbitration: Health Department terminating its contract with Life Esidimeni Care Centre where after over 1 000 mental healthcare patients were transferred to various unsuitable organisations – this resulted to the death of 144 patients.
  • Komape matter: and, where a young boy from Limpopo drowned in a pool of feces in the school’s pit-toilet.

From these examples, it is obvious that where the State fails to fulfill its constitutional obligations, it must be armed to defend claims for constitutional damages.

Brief discussion of judicial precedent:

Earlier on in our constitutional democracy, a claim for constitutional damages was made in the Fose matter, which may be worth mentioning that the interim Constitution of 1993 was in force at the time when this matter was heard.

In this matter, the claimant alleged that the Police had assaulted him and therefore subjected him to a degrading, inhumane, and undignified treatment.

The Constitutional Court declined to grant constitutional damages as it felt that punitive damages were unjustified. It further held that, if the claimant is successful in proving his case, the constitutional damages will be substantially high and this will, at the end, be at the expense of the taxpayers.

However, the court did caution that where appropriate, a remedy of constitutional damages will be awarded. In the Kate case, there had been delays in the processing of an application for a disability grant and the court granted constitutional damages against the Department of Welfare, Eastern Cape. In the Mahambehlala v MEC for Welfare, Eastern Cape matter, there had been a similar issue with the department unreasonably delaying (for over three months) the social grant application of an unemployed woman. The court ruled in her favour.

There are many similar cases of this nature, including that of Mbanga, where the courts awarded the constitutional damages. The other undoubtedly prominent matter around this subject is the Life Esidimeni Arbitration. Notwithstanding that this was heard through an arbitration and, thus, the findings are not judicially binding, the arbitrator, former Deputy Chief Justice, made substantial constitutional damages’ awards to the affected families.

In the Komape matter, the SCA, just like the high court, rejected the claim for constitutional damages. The court held that, as was explicated in the Fose matter, it would be unjustifiable to grant constitutional damages while the “… public purse could be better utilised…” and that there is no reason why the Komape family should be given an additional award – in addition to the common law remedies.

From the cases above, it is obvious that the applicability of the constitutional damages will always depend on the peculiar circumstances of the case and what is appropriate as a remedy to give effect to the claimant’s rights in each case.

Did Tshwane Metropolitan Municipality sense the danger from afar?

In a widely reported incident of November 2017, five children died instantly while playing under the malfunctional high mast light when it fell over them in Soshanguve, Pretoria. Months prior to the infamous incident, the community had been pleading with the authorities to resolve the issue of the light as it had been poorly maintained and, thus, poised a risk to the community members. The municipality covered the funeral expenses and had undertaken to pay for families’ counseling needs – which never materialised.

Triggered by the Municipality’s incalcitrant attitude, the Baloyi family instituted a claim wherein, amongst other, heads of damages, claimed constitutional damages.

The matter was quickly settled amicably between the parties, late in 2019. This was undoubtedly a great victory for the family but a missed opportunity for the judicial precedent, as it would have been interesting to see how the court(s) would deal with the constitutional damages claim. In this sense, the City of Tshwane might have sensed danger from afar and accelerated settlement.

Filled with remorse over the incident, the offers in respect of the 3 (three) claimants were consolidated and therefore did not specify the amount tendered for each head of damage. Therefore, one would not know whether the offer was made for constitutional damages and, if it was, how much was tendered in respect thereof. It may have been a missed opportunity for the development of the law, it is, however, a great victory for the family who finally saw justice prevailing.


With the standard of service delivery by the State expeditiously deteriorating, it will be a surprise if a growth in matters concerning constitutional damages are claimed.

The State is delaying processes (Kate, Mahambehlala, etc.), failing to properly maintain the infrastructure (Baloyi), failing to properly build proper infrastructure (Komape), and making irrational decisions (Life Esidimeni). Therefore, there is a good chance of seeing interesting developments in this regard. Also, while our courts are being justifiably cautious in awarding constitutional damages (Komape and Fose) in that substantial awards will not deter inferior service and it will be at the expense of taxpayers, they should not turn a blind eye on the possibility that until they take such measures, the public service delivery may not improve. Simply put, the State will not fear doing wrong if there are no dire consequences. What will most likely happen is that various State organs will be consistently involved in lengthy and costly litigation and, in turn, will hurt the public purse – maybe even worse. Prime example would be the MEC of Welfare, Eastern Cape, which has been litigating over similar matters on several occasions and is likely to continue because the awards made are not severe enough. Whilst it is more of the Executive’s duty to improve the public service delivery – all three arms of government have a duty to hold one another accountable in one way or the other, even if it means taking potentially drastic measures.



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