LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

South Africa: Distributive or corrective justice 151
obtained in litigation other than constitutional litigation. This is the
basis upon which the Court declined to award damages in the Fose
case. The applicant had already secured compensatory damages
under delictual law.
The Supreme Court of Appeal (SCA) has adopted the same
approach as can be seen, for instance, in Jayiya v MEC for Welfare,
Eastern Cape. 112 In this case, the SCA declined to uphold an order that
‘constitutional damages’ be paid arising from the state’s failure to
approve the applicant’s social assistance grant in time. The High
Court had awarded compensatory damages, including backpay and
interest, to be paid to the plaintiff in a lump sum. The SCA, relying on
the Fose case, held that constitutional damages could only have been
awarded if there was no provision for either statutory or common law
remedies. 113 The case was brought under the Promotion of
Administrative Justice Act (PAJA), 114 which made provision for a
statutory remedy. The SCA held that where the law giver has created
mechanisms for securing constitutional rights, and provided, of
course, that they are constitutionally unobjectionable, they must be
used. 115 An award of damages would therefore have been construed
as disregarding the express intent of the legislature as reflected in
PAJA. Since no constitutional challenge had been mounted
challenging the remedies provided by PAJA, there was no reason to
disregard this Act.
The Modderklip case is a good example of a case where an award
of damages was appropriate because compensatory relief could not
be obtained elsewhere other than in the constitutional case. The facts
leading to this case are as follows: During the 1990s, some 400 persons
who had been evicted by the Ekurhuleni Metropolitan Municipality
from Chris Hani Township moved onto a portion of farmland belonging
to Modderklip, and erected about 50 shacks. By October 2000 there
were about 4 000 residential units inhabited by some 18 000 persons.
On 18 October 2000, Modderklip launched an application for the
eviction of the occupiers under the Prevention of Illegal Eviction and
Unlawful Occupation of Land Act (PIE). 116 The application succeeded
and the High Court issued an eviction order on 12 April 2001. A writ of
execution was issued and the sheriff was requested to execute. The
sheriff, however, responded by insisting on a deposit of R1,8 million
in order to cover the estimated costs of a security firm which she
intended to engage to assist her in evicting the occupiers and
112
2004 2 SA 611, [2003] 2 All SA 223 (SCA).
113 Para 9.
114 Act 3 of 2000.
115
Para 9.
116 Act 19 of 1998.