LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

South Africa: Distributive or corrective justice 143
‘pecuniary’ or ‘non-pecuniary’. 73 The award of pecuniary damages
purports to represent what the plaintiff has suffered directly in
monetary terms as a result of the wrong. The plaintiff could have
expended quantified monies on medical fees, on replacement of lost
property or lost wages resulting from physical incapacity, for
instance, because of a tortuous injury.
Non-pecuniary damages do not make up for the money that has
been lost by the plaintiff. Instead, they compensate him or her for the
pain and suffering caused by the harm. 74 Such pain and suffering may
not always be easily reduced to a loss of monetary value; it may
include anxiety, depression, embarrassment and humiliation. Nonpecuniary
damages are very important because in some cases the
pecuniary damage suffered may either be nominal or non-existent. 75
Some forms of injuries, especially in the human rights arena, are hard
to assess in monetary terms. It may be hard for someone to express,
in monetary terms, for instance, the injury suffered by a gag that
violates his or her freedom of speech if what he or she was going to
say was not part of his or her trade and would not have generated
money. The same may be said in respect of a violation of one’s
freedom of association and freedom to vote or exercise of religion.
However, although the violation of these rights may not result in
monetary loss, it may be so egregious so as to warrant the payment of
non-pecuniary damages.
A good example of a case to support the above submission is the
Sri Lanka case of Deshapriya and Another v Municipal Council, Nuwara
Elye and Others. 76 The Sri Lanka Supreme Court, after finding a
violation of the right to free speech, awarded substantial nonpecuniary
damages even if no substantial monetary loss had been
suffered. The Court justified this award on the grounds that it would
not be right to assess compensation at a few thousand rupees, simply
because the newspaper was sold for seven rupees a copy; that this
would only be the pecuniary loss caused by the violation of the
petitioners' rights of property under ordinary law. The Court said that
it was concerned with a fundamental right, which not only transcends
property rights but which is guaranteed by the Constitution; and with
an infringement which darkens the climate of freedom in which the
peaceful clash of ideas and the exchange of information must take
place in a democratic society. ‘Compensation must therefore be
73 Wells & Eaton (n 72 above) 172.
74
See H McGregor Mayne and McGregor on damages (1961) 6.
75 Shelton (n 47 above) 73.
76 [1996] 1 CHRD 115 sourced from the University of Minnesota Human Rights
Library, at http://www1.umn.edu/humanrts/research/srilanka/caselaw/Speech/
Deshapriya_v_Municipal_Council_Nuwara_Eliya.htm (accessed 3 August 2006).