In late January 2025 the Supreme Court of Appeal held that, in circumstances where a contractual discretion is to be exercised impacting on the counterparty’s performance, the discretion must be exercised in good faith, with reasonable judgment, and without arbitrariness (known under the common law as the arbitrio bono viri standard). The court held that
In November 2023 the Constitutional Court refused to apply the common law “once and for all” rule to matters in which there are two or more causes of action arising out of the same facts. The “once and for all” rule provides that where a party claims for damages arising from a single cause of
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”.
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
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