LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

150 Chapter 5
without the need for further damages in the form of punitive
constitutional damages. 104 The Court is of the view that the award of
damages should not serve to punish but to compensate for the damage
caused. 105 As was the case with the Canadian Supreme Court in the
Vorvis case, the Constitutional Court has alluded to a historical
anomaly that has allowed punitive damages, equitable to fines in
criminal law, to be awarded against a person without the safeguards
afforded by the criminal law: ‘It becomes even more unacceptable in
a country ... in which extensive criminal procedural rights are
entrenched.’ 106
The Constitutional Court is also of the view that there is no real
evidence that awarding punitive damages will serve as a significant
deterrent against the individual or systemic repetition of
infringements. 107 According to the Court, an award of punitive
damages, if it is to have a deterrent effect on the government, should
be substantial. The problem, in the Court’s opinion, is that this will
bring a windfall to a single plaintiff and yet similarly situated victims
would not be entitled to similar awards. 108 In addition, substantial
awards made against the government will significantly impact on the
revenue of the government and would arguably impinge on the
executive’s ability to function effectively: ‘Moreover, the use of
private law remedies to claim damages to vindicate public law rights
may place heavy financial burdens on the state.’ 109 As seen above,
though the Court has acknowledged the fact that punitive damages
may lead to systemic change, it is of the view that the process might
be a slow one, requiring a substantial number of such awards before
change is induced. Yet, such change could be achieved using
equitable relief which is far cheaper and faster. 110
In addition to the above, the Constitutional Court considers
damages as having a retrospective effect because they seek to
remedy loss caused rather than prevent loss in the future.
Furthermore, the Court has held that the award of damages to
vindicate human rights violations would amount to measuring
something intrinsic to human beings as if these were market-place
commodities. 111 The Court has, therefore, concluded that constitutional
damages will be awarded only where no relief can be
104
Fose case (n 99 above) para 67.
105 Mokhatla case (n 37 above) para 78.
106 Mokhatla case (n 37 above) para 70.
107
Fose case (n 99 above) para 71.
108 As above.
109 Rail Commuters case (n 51 above) para 80. The Court observed further that,
although there could be circumstances when delictual relief may be appropriate
for constitutional violations, the fact that public law remedies may be as
effective and appropriate should not be overlooked (para 81).
110
Fose case (n 99 above) para 65(d).
111 Mokhatla case (n 37 above) para 109.