Tag archives: Common law

When constitutional damages are claimable

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 … Continue reading

Circumstances where the common-law ought to be developed

At common-law a lessee or a sub-lessee has no right to question the lessor or sub-lessor’s right to occupy property. The Constitutional Court was asked to develop the common-law in Mighty Solutions CC t/a Orlando Service Station v Engen Petroleum Ltd to require the lessor to establish its independent title to the property when claiming … Continue reading

Constitutional damages

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 … Continue reading