LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

South Africa: Distributive or corrective justice 149
declined to award punitive damages because it considers such
damages to be a fine accomplished without procedural protection as
those available in criminal law. Instead, the fine is imposed on a
balance of probabilities and does not follow the standard of proof
beyond reasonable doubt. 98
In South Africa, the Constitutional Court has acknowledged the
fact that damages may be an appropriate remedy in some
circumstances. According to the Court, there is no reason in principle
why ‘appropriate relief’ should not include an award of damages,
where such an award is necessary to protect and enforce the rights in
the Constitution. Such awards are made to compensate persons who
have suffered loss as a result of the breach of a statutory right if, on
a proper construction of the statute in question, it was the
legislature’s intention that such damages should be payable, and it
would be strange if damages could not be claimed, at least for a loss
occasioned by the breach of a right vested in the claimant by the
supreme law. 99
In the Fose case, the plaintiff claimed damages arising from a
series of assaults alleged to have been perpetrated by members of the
South African Police Services (SAPS) on the plaintiff while in
detention. 100 In addition to compensatory damages, the plaintiff
claimed punitive damages. He contended that torture was a widespread
and persistent infringement by members of the SAPS. 101 The
Constitutional Court, however, rejected the claim of punitive
damages. It upheld submissions that, although punitive damages may
lead to systemic change, the process might be a slow one and
requiring a substantial number of such awards before change is
induced. Yet, such change could be achieved using such equitable
relief as the interdict, which is far cheaper and faster. 102
Like the US and Canadian courts, the Constitutional Court has
rejected an award of damages as appropriate in the case of an
infringement of the Constitution that does not cause loss. 103 The
Court is only prepared to use damages for compensatory purposes
where loss is proved. It is on the basis of this that the Court has
declined to award punitive damages as a response to infringements of
constitutional rights. Accordingly, the Court has held that
compensatory damages, once proved, would serve a vindictive role
98 Vorvis v ICBC (1989) 58 DLR (4th) 193 (SCC) (Vorvis case) 205-206.
99
Fose v Minister of Safety 1997 7 BCLR 851 (CC) (Fose case) para 60.
100 Para 11.
101 Para 12.
102
Para 65(d).
103 Fose case (n 99 above) para 67.