LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

South Africa: Distributive or corrective justice 147
of a right. 88 The case of Modderklip Boerdery (Pty) Ltd v President of
the RSA and Others (Modderklip case), 89 discussed in detail below, is
an example of a case where it was impossible to identify all the
victims because of the transient nature of the population. 90
However, there could be cases where only an individual or few
individuals are targeted by the violation. This is common in respect of
negative infringements that interfere with the enjoyment of an
individual right. In such a case, although a number of individuals may
be involved, it may not be a problem to litigate as an individual.
Nonetheless, a violation could be of a negative nature yet involving a
multitude of people. Consider a case, for instance, where a
municipality, without due process, disconnects water from a
multitude of residents. 91 The same practical problems of determining
who suffered what damage may arise as is the case with positive
violations.
It is for the above weaknesses, among others, that courts have
doubts about the appropriateness of damages in constitutional
litigation. This doubt is reflected in the approach of the Constitutional
Court, as discussed below.
The approach of the South African courts
The position adopted by the South African courts as regards the award
of damages in constitutional litigation is similar in many respects to
the US and Canadian courts’ approach. In all these jurisdictions,
constitutional damages have been awarded only where damages for
injury cannot be obtained under delictual or other law. Although the
courts have not rejected the award of punitive damages, the cases
show that there is often a reluctance to award them. The US Supreme
Court has, for instance, rejected submissions that damages can be
paid for the violation of a constitutional right for its abstract value
without proof of actual physical injury or loss. Nonetheless, the Court
88
Trengove (n 85 above) 6 gives the example of the violation of the right to
education resulting from discrimination perpetrated over a long period of time.
He contends that it is hard to determine how such victims would be compensated;
it is even harder where the victims have received some form of inferior
education. Trengove submits that the identification of such victims would be a
logistical nightmare which would devour valuable resources in a hopelessly, yet
inadequate, attempt to determine who should get what.
89 2004 8 BCLR 821 (SCA).
90 As will be seen later, when the case was first instituted in the High Court, the
estimated number of occupants of the land in issue was about 18 000, but by the
time the case got to the Constitutional Court, the figure had arisen to over 45
000.
91
See, eg, Residents of Bon Vista v Southern Metropolitan Council 2002 6 BCLR 625
(W).