Fose v Minister of Safety and Security

The applicant, Ntandazeli Fose, alleged that during 2–3 May 1994 he was seriously assaulted and tortured by members of the South African Police Force acting within the course and scope of their employment. He instituted action against the Minister of Safety and Security in the Witwatersrand Local Division. In addition to common-law delictual claims for assault (claims B1 and B2), he advanced a separate claim (claim C) for so-called 'constitutional damages' amounting to R200 000, including a punitive element, based on alleged infringements of his Chapter 3 rights under the interim Constitution, particularly the right not to be tortured or subjected to cruel, inhuman or degrading treatment. The Minister excepted to claim C on the basis that it disclosed no cause of action. The exception was upheld in the court a quo, and leave to appeal was sought in the Constitutional Court.

Leave to appeal was granted but the appeal was dismissed. The exception to claim C was upheld, and the applicant was not entitled to pursue a separate claim for constitutional damages in addition to common-law delictual damages.

This was the first Constitutional Court decision interpreting section 7(4)(a) of the interim Constitution on 'appropriate relief'. It established that constitutional damages are not automatically available and that courts should prefer existing common-law remedies, developed in line with constitutional values, where they provide effective relief. The case set an important restraint on the creation of new constitutional damages claims and influenced later jurisprudence on constitutional remedies.