This November 2021 Constitutional Court judgment contains a useful review and analysis of when it is appropriate to award constitutional damages.

In terms of section 38 of the Constitution, a court may award damages for a violation of rights in the Bill of Rights.

Section 38 refers to the granting of “appropriate relief”. The concept of appropriate relief includes an award of constitutional damages. Whether it is appropriate to make an award of damages and what the measure of damages should be will depend on the circumstances in each case, the particular rights which have been infringed and the other remedies available.

Constitutional damages are not appropriate relief where a claimant could be compensated by delictual damages and where that in itself is a powerful vindication of the constitutional rights in question.  Nor will constitutional damages be awarded where there is no evidence to prove that such damages would serve as a significant deterrent against an individual or systemic repetition of the infringement in question.

Where the defendant is a State entity, scarce resources in a country such as South Africa may render it inappropriate on the facts of each case to use those resources to pay punitive constitutional damages to an individual plaintiff who has already been compensated under the common law.

In most cases the common law will be broad enough to provide all the relief that would be “appropriate” for a breach of constitutional rights.

Accordingly where the violation of a constitutional right involves the commission of a delict, an award of constitutional damages in addition to those available under the common law will seldom be available. If a common law remedy exists a claimant must first have recourse to that remedy.

Where there are many possible remedies a remedy that constitutes appropriate relief will ultimately be determined by the circumstances of the case and will involves a judgment call by the court and the exercise of its discretion.  In a given case, appropriate relief by way of constitutional damages may not necessarily be the more or most effective of two or more options.

In considering the award of constitutional damages there are two overarching considerations:

  • The existence of an alternative remedy that would vindicate the infringement of the rights alleged by the claimant
  • Whether the alternative remedy is effective or appropriate in the circumstances.

Ancillary factors include whether the infringement of the constitutional rights was systemic, repetitive and particularly egregious, whether the award will significantly deter the type of constitutional abuses alleged, the effect of the award on State resources, and the need to avoid opening the floodgates in respect of similar matters.

In general if a claimant can pursue a delictual claim to vindicate their constitutional rights they must do so and prove all the elements of the delict before being compensated.  Litigants cannot avoid claiming relief, for example in delict, through trial proceedings and proving the stringent requirements of delictual liability simply because they wish to, or because it would be less difficult for them to do so.

A delictual claim does not cease to be a remedy simply because it may be onerous to prove.

Even if an award of constitutional damages is one of the appropriate remedies, a court may still choose a different remedy as appropriate relief envisaged in section 38 in making such an award. When considering an order that is just and equitable, the court must balance the interests of the claimant against those of the defendant and, where applicable, the public interest as well.

Accordingly constitutional damages must be the most appropriate remedy available to vindicate constitutional rights with due weight attached to other alternative remedies available in the common law and statutes.