Constitutional Damages in South Africa: A Transformative Approach

Abstract

This article explores when constitutional damages can and should be awarded in South African law. The history of the divergence between common-law damages and constitutional damages (and the uncertainty that might arise about which type of damages a victim of an injury ought to pursue) is explored. Thereafter, a critical and constructive interpretation of the case law on constitutional damages is provided, which sets the scene for a precedent-inspired three-step approach to constitutional damages adjudication. This approach is then defended as a transformative constitutional one which squares easily against the notion of constitutional adjudicative subsidiarity.