LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

148 Chapter 5
has left open the possibility of awarding punitive damages if it is
necessary to deter and punish malicious violations of rights. 92
The US Supreme Court has placed much weight on the principles
of tort (delict) law governing the awarding of damages, which it has
recognised as applicable in constitutional litigation. 93 Emphasis has
been placed on the common law principle that ‘a person should be
compensated fairly for the injuries caused by the violation of his legal
rights’. 94 The Court has added, however, that the common law rules
may not provide a complete solution to damages for a deprivation of
constitutional rights. Where the interests protected by the
constitutional rights are not protected by the common law, there will
be a need to adapt the common law in order to provide fair
compensation.
This approach was applied in the case of Bivens v Six Unknown
Federal Narcotics Agents, 95 a case arising from false arrest and
imprisonment. The majority of the Court held that, although the
Constitution did not provide for the enforcement of constitutional
rights by an award of damages, there was nothing precluding the
courts from vindicating the rights with such awards. It has been
submitted that if Bivens had not been permitted to sue for damages,
he would have had no means of redressing the violation of his rights.
An interdict would have been useless to him because he had been
arrested and then released, and yet no recurrence of the conduct had
been anticipated. The Court also held that in the absence of such
alternative relief, the Court would exclude the claim only if there
were special factors counselling hesitation in the absence of
affirmative action by Congress. 96
The Canadian courts’ approach has not been much different from
the one adopted in the US. In fact, the Canadian approach has very
much been influenced by the US approach. The Canadian courts have
embraced damages for compensatory purposes and have declined to
award them as a means of vindicating constitutional rights and
deterring future violations. 97 The Canadian Supreme Court has
92 In Carey v Piphus (Carey case) 435 US 247 (1978), the Court held that it remains
true that substantial damages should be awarded only to compensate actual
injury or, in the case of exemplary or punitive damages, to deter or punish
malicious deprivations (at 266). The Carey case was followed by another case,
Memphis Community School District V Stachura 477 US 299 (1986), where the
Supreme Court held that there is no room for non-compensatory damages
measured by the jury’s perception of the abstract importance of a constitutional
right.
93
Carey case (n 92 above) 255.
94 As above.
95 430 US 388 (1971).
96
See Carlson v Green 447 US 14 (1980).
97 Roach (n 42 above) 11-3.