When ‘constitutional damages’ are an appropriate remedy

While claims for damages in general were not new to law, since the inception of the Constitution, courts have had to engage with whether ‘constitutional damages’ were an appropriate remedy against the state for violating constitutionally entrenched rights. 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,’ says the Helen Suzman Foundation’s Michelle Toxopeüs, adding that ‘courts should look to remedies that enforce and protect these rights’. In a detailed analysis on the foundation’s website, she points out that factors affecting ‘appropriate relief’ can be garnered from the Constitutional Court’s 1997 ruling in Fose v Minister of Safety and Security: courts should look at the circumstances of each case; the common law will be broad enough to encompass all the relief that will be ‘appropriate’; 'appropriate relief' may include an award for constitutional damages; and that courts ought not to award punitive constitutional damages to a claimant who is already fully compensated for any loss or damage. Furthermore, following the SCA ruling in MEC for the Department of Welfare v Kate, a court should consider the nature and relative importance of the rights; alternative remedies that may be available; and the consequences of breaching the claimants’ rights. In the recent Life Esidimeni arbitration award, 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. However, in Komape and Others v Minister of Basic Education, the court held that a structural interdict to oblige the state to install proper sanitation facilities at rural schools was the only appropriate remedy to effectively vindicate the Constitution. Toxopeüs says while the structural interdict was necessary in this case, 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. She say considering the sustained and systemic failure of the state to fulfil its constitutional obligations, an award for constitutional damages would not have over-compensated the family. Toxopeüs notes that an appeal against the judgment has been lodged, ‘and one can only hope that the appeal will lead to an appropriate constitutional remedy’.

Full analysis on the Helen Suzman Foundation website

Fose v the Minister of Safety and Security

MEC for the Department of Welfare v Kate

Life Esidimeni arbitration award

Komape and Others v Minister of Basic Education