Constitutional Damages – a Stagnant or a Changing Landscape?

Abstract

Section 38 of the Constitution of the Republic of South Africa, 1996 provides for appropriate relief where a right in the Bill of Rights has been infringed. In Fose v Minister of Safety and Security 1997 3 SA 786 (CC) the Constitutional Court raised the question of "appropriate relief" with reference to section 7(4)(a) of the Constitution of the Republic of South Africa Act 200 of 1993. In the Fose case the plaintiff claimed "punitive constitutional damages" together with delictual damages. While the court did not rule out an award for damages for the infringement, it did not award constitutional damages in that instance, specifically because the plaintiff claimed "punitive constitutional damages". The Fose case has been followed by most of the cases heard in the years after Fose was decided. In most instances where constitutional damages were claimed the courts, following Fose, have not awarded constitutional damages where delictual damages were available. The rules relating to constitutional damages are casuistic and it is submitted that the principle of subsidiarity could form a foundational principle to solve the problem of casuistry in this regard.