Published Date: August 19, 2020

In recent years, claims for constitutional damages have been gaining traction, as there has been a loud cry over the level of service delivery. Constitutional damages are the damages that the victim can claim where his/her constitutionally protected right has been violated.

Covid-19 has put much pressure on the government to fast-track some basic services to the most vulnerable members of the society. Whilst there have been successes in this regard, there also have been failures. It is those failures that are likely to fuel constitutional damages claims. Claims of such nature are not new in South Africa as we had the first Constitutional Court’s judgement on this issue early on in our constitutional democracy, in the matter of Fose against the Minister of Safety & Security.

To date, there are still many uncertainties around the subject of constitutional damages and, with the higher chance of litigious matters being brought forward due to Covid-19 pandemic, the uncertainties may be ironed out. There have been plethora of inconsistencies and diverging approaches by our courts insofar as these claims are concerned. Courts are ordinarily cautious in awarding constitutional damages as issues of overcompensation and punitive damages in civil law often come up.

Evident in our legal jurisprudence is that our courts are more inclined to award constitutional damages where harm relates to financial loss than non-patrimonial damages. Although many Covid-19 cases have been dismissed by our courts, these matters will (if and when they reach courts) be distinguishable from the rest. As such, the established legal principles relating to constitutional damages will be applicable.

Below are the possible bases for constitutional damages we may see in the upcoming months

  • Delays in the processing of applications for various grants (disability; child; old age; novel ‘unemployment grant’; etc.). Legal principles laid down in cases as Kate and, also, Mahambehlala v MEC for Welfare, Eastern Cape, may be pertinent. In these cases, the constitutional damages were awarded as there had been delays in the processing of the applications for applicants’ grants. Various monetary reliefs offered by the government during this period has kept the SASSA department extremely busy and, at least, at the initial stages of the lockdown, there were long delays in processing/granting of relief funds which, naturally, would jeopardize efficiency relating to other ‘general’ grants.
  • Lack of infrastructure in schools – in this regard, although in the directly applicable case of Komape, constitutional damages claim was rejected by the Supreme Court of Appeal, it does not necessarily mean that such a claim will never succeed against the department of education in future. The outcome of each case, as in any other case, will be determined by its peculiar facts. Lack of adequate infrastructure in public schools has been the prominent cause for concern for most stakeholders as Covid-19 positive cases keep increasing in our communities. In a case where there is proof, on the balance of probabilities, that the child contracted the virus at the school (due to inadequate infrastructure), the child may have a claim against the government if he suffers greater health complications as a result thereof.
  • Medical malpractice/capacity inadequacy – there have been fears of hospitals not being adequately equipped to deal with the high number of patients and may lack capacity. There have been trending videos on social media of patients being turned away from the hospitals due to lack of spaces. Not so long ago, it was reported that the Eastern Cape provincial government is set to transfer other patients to other provinces for medical attention and, also, due to lack of capacity and facilities. There is no constitutional damages case law relating to health sector, but the concrete principles laid out in the Life Esidimeni Arbitration Award may be of an enormous persuasive value herein.
  • Inadequate infrastructure/facilities in prisons – concerns over safety from Covid-19 in prisons have been one of major subjects during this period. This is due to the known unhygienic and overcrowded cells in prisons; lack of adequate infrastructure; compromised immune systems; and a possibility of lack of suitable quarantine facilities. In the South African context, it is established that prisoners, like other citizens, enjoy the constitutional rights enshrined in the Bill of Rights and, where there has been a breach, they are entitled to the legal recourse, accordingly. The most applicable case herein is the case of Lee v Minister of Correctional Services. Notwithstanding the fact that constitutional damages in the said case were never claimed, the rise of prominence of such damages may also encourage such claims in the context of prisoners.
  • Violation of right to property – we have seen some appalling images and videos of people being evicted from their residences. In 2004, the Supreme Court of Appeal awarded constitutional damages in the Modderfontein Squatters case following a breach of the constitutionally protected right to property.
  • General lack of infrastructure – as the focus has shifted to the issues relating to Covid-19, the pre-existing issues of erection of infrastructure, maintenance, repairing, etc. remain and, are probably, worsening. If, for some reason, a person suffers harm due to this and the factors point blame on the government, then the relevant municipality will be sued for such damages.

When these cases reach courts, it will be interesting to see how they will be handled. For precedent’s sake, it is crucial that the hanging uncertainties be ironed out, so as to assist the courts in future and lawyers when they assess whether to take on such instructions. It will also be interesting to see how the Covid-19 pandemic will impact these damages i.e. whether the courts will be lenient towards the government given the current situation or they will apply the legal principles as they are, nonetheless. In this regard, there may be convincing arguments to say that there should be no leniency as these issues are not novel – they have just been exposed by the pandemic.

This, coupled with the allegations of corruption in government, may prompt courts to show no leniency and to ensure that victims do realise justice where their constitutional rights have been violated. Others may support an alternative approach which may be a “department-based” approach – i.e. those departments that are at the center of the fight against Covid-19 (e.g. Department of Health) to be showed some leniency whilst those that are at the periphery, little or no leniency. Whatever approach will be adopted, it will be beneficial for our legal jurisprudence to get certainty insofar as these claims are concerned.