Our courts are reticent in making an award for constitutional damages. They will first consider whether there is scope to develop the common law of damages to permit recovery before awarding constitutional damages, especially where the constitutional damages sought includes a punitive element.
The courts look carefully at whether there is an existing, appropriate remedy for damages for the breach of the constitutional rights complained of. Constitutional damages are not there for the asking.
A claimant can claim common law damages for proved loss to vindicate a constitutional right. There is no reason why common law damages which vindicate constitutionally infringed rights should not provide appropriate relief.
The supreme court of appeal in Minister of Police v Mboweni & Others overturned the trial court judgment allowing constitutional damages for deprivation of parental support because the common law already makes provision for claiming damages for loss of support.
