The Minister of Police v Vongani Sharon Mboweni and Rudzani Lolla Makatu

On 15 March 2009, the police arrested Mr Wisani Mahlati and detained him at Ritavi police station. During his detention, two prisoners in his cell assaulted him while other inmates disguised the assault by singing loudly. The police failed to detect or prevent the assault. The following morning, satisfied they had no grounds for his detention, the police released him. He was visibly in pain, sweating excessively and had vomited. He was taken to a doctor and later hospitalised. He died five days later. The first respondent was married to Mr Mahlati and is the mother of his daughter born on 13 January 2009. The second respondent is the mother of another daughter born on 27 November 2000. On behalf of their daughters, the respondents claimed substantial damages against the Minister of Police, alleging that their daughters' right to parental care under section 28(1)(b) of the Constitution was impaired when their father died as a result of the unconstitutional conduct of police members. The parties agreed on amounts payable for loss of support (delictual damages). They then proceeded as a 'special case' on the issue of constitutional damages for deprivation of parental care. Mothle J in the North Gauteng High Court (on circuit in Polokwane) held that the children had a right to claim constitutional damages and declared the Minister liable, referring quantum to trial.

• Whether the parties properly constituted a special case under Rule 33 of the Uniform Rules of Court
• Whether the requirements for a special case (agreed facts fully stated) were met
• Whether there was a deprivation of parental care within the meaning of section 28(1)(b) of the Constitution
• What constitutes 'parental care' under section 28(1)(b) and whether deprivation occurred when one parent survives
• Whether the police owed a legal duty to the children to protect their constitutional right to parental care
• Whether constitutional damages are an appropriate remedy for alleged breach of section 28(1)(b) rights
• Whether existing delictual remedies (damages for loss of support) adequately vindicate the constitutional right
• Whether the court should have considered the broader implications and allowed interested parties (Road Accident Fund, Ministers of Transport and Finance) to intervene

The appeal was upheld. The action was referred back to the high court for trial in accordance with the provisions of the judgment. All parties were ordered to bear their own costs of the appeal, given that both parties were jointly responsible for the inappropriate procedure adopted in the court below.

The binding legal principles established are: (1) A special case under Rule 33 must contain agreed facts that are fully set out, not mere legal conclusions or assumptions. The facts must show what has arisen and how it has arisen to enable the court to determine whether a concrete legal question arises. (2) Whether a child has been deprived of parental care within the meaning of section 28(1)(b) of the Constitution is a mixed question of fact and law requiring detailed factual findings about the nature of the relationship between parent and child, the role the parent played, time spent together, and other relevant circumstances. (3) Section 28(1)(b) guarantees a right to family care OR parental care OR appropriate alternative care - these are alternatives, not cumulative rights. Determining whether there has been a deprivation of this right requires analysis of which form of care was being provided and whether it continues through other means. (4) Before constitutional damages may be awarded for breach of a constitutional right, courts must first determine whether existing delictual remedies adequately vindicate the right, and if not, whether the common law should be developed to address any inadequacy. Constitutional damages are not a primary or automatic remedy. (5) Not every breach of a constitutional obligation by state officials constitutes wrongful conduct in relation to every person affected by it - the existence of a legal duty owed to the particular claimant requires separate analysis applying policy considerations similar to those used in determining legal duty in delictual claims. (6) Where a decision may have far-reaching implications for public bodies and public funds, courts should ensure that affected organs of state have the opportunity to intervene and make submissions.

The court made several important non-binding observations: (1) The court noted that 'parent' in section 28(1)(b) may encompass a biological, adoptive or foster parent or a parent by virtue of a surrogacy agreement. (2) The court observed that concepts of 'family' differ among different communities in South Africa and are subject to evolution over time. (3) The court suggested that the right in section 28(1)(b) represents a progression from an ideal of family care, to parental care, to appropriate alternative care (the least desirable but sometimes necessary). (4) The court questioned whether a child who continues to receive parental care from one surviving parent has suffered a deprivation of the constitutional right, or whether there is only a partial infringement due to the change from care by both parents to care by one. (5) The court noted that it remains an open question whether South African law should develop to permit constitutional damages that encompass a solatium or general damages beyond pecuniary loss. (6) The court observed that it would be curious if Mr Mahlati could not have obtained constitutional damages for the assaults on him (per Fose) but his daughters could obtain such damages beyond loss of support based on the same decision. (7) The court commented that claims of this type would have obvious implications for the Road Accident Fund, which is already under considerable financial pressure. (8) The court noted that the conclusion in Jooste v Botha that parental care means care by a custodian parent may be unduly restrictive.

This case is significant in South African law for several reasons: (1) It clarifies the strict requirements for special cases under Rule 33 of the Uniform Rules - agreed facts must be fully stated, not mere conclusions or assumptions. (2) It provides important guidance on section 28(1)(b) of the Constitution (children's right to family or parental care or appropriate alternative care), noting that this right is expressed in the alternative and requires careful factual analysis to determine if deprivation has occurred. (3) It emphasizes that constitutional damages are not automatically available for every breach of constitutional rights - courts must first consider whether existing delictual remedies adequately vindicate the right, and whether the common law should be developed before resorting to constitutional damages. (4) It establishes that not every breach of a constitutional duty constitutes unlawfulness in the delictual sense towards every person affected - the existence of a legal duty requires separate analysis. (5) It highlights the need for courts to consider broader public policy implications and to allow interested organs of state to intervene where decisions may have far-reaching fiscal consequences. (6) It clarifies that Fose v Minister of Safety and Security contemplated constitutional damages primarily to compensate for pecuniary loss, not general damages or a solatium. The judgment serves as an important caution against attempts to bypass proper procedural and substantive legal requirements in constitutional litigation.