Fose v Minister of Safety and Security

The applicant (plaintiff) sued the Minister of Safety and Security (defendant) for damages arising from serious assaults allegedly perpetrated by members of the South African Police Force on 2 and 3 May 1994. The plaintiff claimed common law damages in claims B1 and B2 for assault (totaling R130,000 for pain and suffering, loss of amenities, contumelia and medical expenses). In claim C, the plaintiff additionally claimed R200,000 in "constitutional damages" (including punitive damages) for the infringement of his constitutional rights under the interim Constitution (sections 10, 11, 13 and 25), alleging that the assaults constituted torture and cruel, inhuman or degrading treatment. The plaintiff further alleged that such infringements formed part of "widespread and persistent similar infringements" by police, particularly in Vanderbijlpark. The defendant excepted to claim C on the basis that: (1) an action for constitutional damages does not exist in law; and/or (2) an order for payment of damages does not qualify as appropriate relief under section 7(4)(a) of the interim Constitution. Van Schalkwyk J in the Witwatersrand Local Division upheld the exception and granted a rule 18(e) certificate for direct appeal to the Constitutional Court.

• Whether 'constitutional damages' can be awarded as 'appropriate relief' under section 7(4)(a) of the interim Constitution for breach of fundamental rights
• Whether punitive or exemplary damages are available as a constitutional remedy for violations of Chapter 3 rights
• The relationship between common law delictual remedies and constitutional remedies
• Whether the nature of constitutional remedies differs from common law remedies (public law vs private law remedies)
• The proper interpretation and scope of 'appropriate relief' in section 7(4)(a) of the interim Constitution
• Whether damages for the vindication of constitutional rights (separate from compensation) can be awarded
• The relevance of foreign jurisprudence on constitutional damages to South African law

The application for leave to appeal was dismissed. The exception to claim C was upheld. No order as to costs was made.

The binding legal principles established are: (1) 'Appropriate relief' under section 7(4)(a) of the interim Constitution means effective relief that is required to protect and enforce the Constitution and constitutional rights; (2) Such relief is not limited to existing common law or statutory remedies - courts may fashion new remedies where necessary; (3) Whether particular relief is 'appropriate' depends on the circumstances of each case and the particular right(s) infringed; (4) Common law remedies, including delictual damages, can constitute appropriate constitutional relief where they adequately vindicate the right and provide effective redress; (5) Additional 'constitutional damages' for vindication of rights are not appropriate where substantial general damages will already vindicate the constitutional rights infringed; (6) Punitive or exemplary constitutional damages against the state are not appropriate relief because: (a) they would be paid from public funds while defendants receive windfalls beyond compensation; (b) they lack meaningful deterrent effect against government institutions; (c) they punish taxpayers rather than wrongdoers; (d) they improperly merge civil and criminal law functions without criminal procedural protections; (e) public resources are better directed to structural reforms addressing causes of violations; (7) The test for whether relief is 'appropriate' under section 7(4)(a) includes consideration of whether it will vindicate the Constitution and deter future violations, balanced against the interests of both complainants and society.

Several important obiter observations were made: (1) Ackermann J stated (para 60) that he would assume that 'appropriate relief' includes damages where required to enforce Chapter 3 rights, though this was not definitively decided; (2) The Court noted (para 56) that it was unnecessary to decide whether vicarious liability is an adequate basis for state liability for constitutional violations; (3) The Court observed (para 56) that the question whether current South African law on state liability and sovereign immunity is consistent with the Constitution was left open; (4) Ackermann J noted (para 21) that the judgment does not foreclose future consideration of non-pecuniary remedies such as interdicts or mandamus as appropriate constitutional relief; (5) The Court emphasized (para 74) that questions about damages for breach of other Chapter 3 rights, creative non-monetary remedies, and other substantive/procedural aspects of section 7(4)(a) relief were not decided and would be developed case-by-case; (6) Didcott J suggested (para 87) that punitive damages might be more defensible against wealthy private corporations than against the state, though he declined to express a view on this; (7) The Court observed that the common law of delict is flexible and should be developed under section 35(3) with due regard to the spirit, purport and objects of Chapter 3; (8) Ackermann J noted (para 3) that rule 18(e) certificates should be granted only after proper argument and that reasons assisting the Constitutional Court would be helpful; (9) The Court expressed caution about drawing distinctions between 'public law' and 'private law' remedies given scholarly debates about the utility of such categorization; (10) Foreign jurisprudence was extensively reviewed but the Court noted that differences in legal systems, federal structures, sovereign immunity doctrines, and tort law limited its applicability to South Africa.

This is a foundational judgment on constitutional remedies in South African law. It established several important principles: (1) Section 7(4)(a) of the interim Constitution (and by extension section 38 of the final Constitution) provides for constitutional remedies that may differ from common law remedies; (2) 'Appropriate relief' must be relief that is required to protect and enforce constitutional rights - it must be effective relief; (3) Courts have the power to fashion new remedies beyond those available at common law where necessary to vindicate constitutional rights; (4) Common law remedies (particularly delictual remedies) can constitute 'appropriate relief' where they adequately protect constitutional rights, and should be developed in light of the Constitution under section 35(3); (5) The remedies available will depend on the circumstances of each case and the particular right infringed - a case-by-case approach is required; (6) Punitive or exemplary damages against the state for constitutional violations are generally not appropriate relief because they burden taxpayers to provide windfalls to plaintiffs, lack deterrent effect, and confuse civil and criminal law; (7) Foreign jurisprudence on constitutional remedies must be approached with caution given differences in legal systems, constitutional structures and sovereign immunity doctrines. The judgment has been cited in numerous subsequent cases concerning constitutional remedies and has shaped the development of South African constitutional litigation. It emphasized that without effective remedies, constitutional rights cannot be properly upheld or enhanced, placing a particular responsibility on courts to ensure effective vindication of rights. The case also clarified important procedural matters regarding rule 18 certification for direct appeals to the Constitutional Court.