|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
South Africa: Constitutional Court |
[Database Search] [Name Search] [Recent Decisions] [Noteup] [Help]
 |
Links to media summary |
 |
CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 14/96
NTANDAZELI FOSE Applicant
versus
THE MINISTER OF SAFETY AND SECURITY Respondent
Heard on: 10 September 1996
Decided on: 5 June 1997
JUDGMENT
ACKERMANN J:
Introduction and procedural issues
[1] This is an application for leave to appeal against a judgment of Van Schalkwyk J upholding an exception in the Witwatersrand Local Division of the Supreme Court.[1] The exception was taken by the respondent (“defendant”) to claim “C” in the particulars of claim of the applicant (“plaintiff”). It raises the issue whether so-called “constitutional damages” (a concept which will be explained later) can and ought to be awarded as “appropriate relief ” under the provisions of section 7(4)(a) of the Constitution of the Republic of South Africa, Act 200 of 1993 (“interim Constitution”) for a breach of plaintiff’s right, guaranteed by section 11(2) of the interim Constitution, not to be tortured and not to be subject to cruel, inhuman or degrading treatment.
[2] Having upheld the exception, and upon application being made to him under the provisions of Constitutional Court rule 18(a),[2] Van Schalkwyk J granted an unqualified positive certificate in terms of rule 18(e) to the effect, inter alia, that there was a reasonable prospect that the Constitutional Court would reverse or materially alter the decision given by him if permission to bring the appeal was given. The learned judge did so without the application having been formally set down and without hearing the parties. It was his understanding that this was the procedure required by rule 18(e), his reasoning being that it was not his function but that of the President of the Constitutional Court, in terms of rule 18(i)(i), to grant the leave to appeal. In this respect the learned judge erred.
[3] It is true that it is the President who is empowered to grant leave to appeal in terms of rule 18. Although rule 18(i)(ii) provides that applications for leave to appeal may be dealt with summarily without hearing oral or written argument other than that contained in the application itself, it is clear from the context that this latter provision relates to the decision by the President and not to the grant of the certificate by the judge or court a quo. The purpose of rule 18(e) certification is to assist in ensuring that appeals are not heard by the Constitutional Court which are not of substance, or which cannot be dealt with and disposed of by the Constitutional Court because of the insufficiency of the evidence, or which have no reasonable prospect of success. Apart from the fact that the person in whose favour the decision has been given in the court a quo has an interest in the granting of the certificate and is entitled to be heard on that ground alone, proper argument is important to ensure that the objects of certification are achieved.[3] Rule 18 does not in terms require that reasons be furnished for the grant of a rule 18(e) certificate. Where, however, a matter comes directly to this Court from a Provincial or Local Division of the Supreme Court it would greatly assist this Court in dealing with a new and complex point of constitutional law if it had the benefit of the views of the Supreme Court issuing the certificate, in addition to any judgment previously given in the case.
[4] Pursuant to directions given by the President, argument on the application for leave to appeal and on the merits of the appeal itself was, as a matter of convenience, heard together. Condonation for the late lodging by the plaintiff of his application for leave to appeal was granted, the delay being occasioned by the plaintiff’s ignorance of the fact that Van Schalkwyk J had granted a rule 18(e) certificate under the circumstances mentioned above.
The amici curiae
[5] Mr JHA Munnik, an advocate of the Supreme Court and the duly appointed police reporting officer of the Witwatersrand charged with monitoring the investigation of complaints concerning alleged police misconduct which might detrimentally affect police/community relations, was admitted as an amicus curiae and filed full written argument, although he did not present viva voce argument. We have given due consideration to his written argument. In addition, however, Mr Munnik tendered a bundle of documents on which he sought to rely testimonially in his argument. Rule 34(1) permits an amicus curiae to canvass factual material which is relevant to the determination of the issues before the Court and which do not specifically appear on the record, provided that such facts –
“(a) are common cause or otherwise incontrovertible; or
(b) are of an official, scientific, technical or statistical nature, capable of easy verification.”
[6] The defendant admitted the correctness of the content of certain factual material[4] so tendered but placed the correctness of the rest in issue. Save to the extent that any of the disputed factual averments might be so notorious as to justify the Court taking judicial notice thereof, none of the material falls within the provisions of rule 34(1) and is accordingly not admitted.
[7] The Human Rights Commission, established under the provisions of section 115 of the interim Constitution, also sought admission as an amicus curiae in terms of Constitutional Court rule 9(1) on the basis that all the parties in the matter had consented in writing thereto.[5] For an amicus curiae to be admitted on this basis in an application for leave to appeal the written consent of all the parties must be given within 10 days after such application has been lodged with the registrar of the Constitutional Court.[6] In the present case the application for leave to appeal was lodged with the registrar on 26 March 1996 whereas the consent of the parties was not obtained until 4 September 1996, nearly five months out of time and only six days before the hearing of the matter. The Human Rights Commission brought no application for condonation in this regard.
[8] The Human Rights Commission is unquestionably an important constitutional body charged with the task of advancing and protecting human rights in South Africa. The interim Constitution imposes on it extensive duties, to be executed in a variety of ways, to further respect for and the observance and protection of fundamental rights.[7] It is a body which has and will continue to acquire expertise regarding the constitutional protection of fundamental rights and it undoubtedly has a real and substantial interest in a wide range of cases with which this Court is and will be concerned. As an amicus curiae it can be expected to play an important role, in appropriate circumstances, in the work of this Court but it does not, by virtue of the Constitution or other statutory provision, enjoy any privileged position and its admission as amicus in any particular case must therefore be governed by rule 9.
[9] It is clear from the provisions of rule 9 that the underlying principles governing the admission of an amicus in any given case, apart from the fact that it must have an interest in the proceedings, are whether the submissions to be advanced by the amicus are relevant to the proceedings and raise new contentions which may be useful to the Court.[8] The fact that a person or body has, pursuant to rule 9(1), obtained the written consent of all parties does not detract from these principles; nor does it diminish the Court’s control over the participation of the amicus in the proceedings, because in terms of subrule (3) the terms, conditions, rights and privileges agreed upon between the parties and the person seeking amicus status are subject to amendment by the President.
[10] In the present case the parties agreed that the Human Rights Commission could file written argument and the defendant further agreed that it could address oral argument for a period of approximately 30 minutes at the hearing. The Human Rights Commission’s purported admission by consent as an amicus curiae was, as mentioned, well out of time and no proper application for condonation of its late admission was brought. Moreover the written argument which it lodged did not raise any substantially new contentions which might have been useful for the Court. Under these circumstances the Court declined to permit the Human Rights Commission to address argument to it.
The issues
[11] The plaintiff, in its particulars of claim, sued the defendant (the Minister of Safety and Security) for damages arising out of a series of assaults alleged to have been perpetrated on 2 and 3 May 1994 by members of the South African Police Force acting within the course and scope of their employment with the defendant. Claim “A” is not relevant to the present proceedings. Claim “B1” and “B2” relate to assaults which are alleged to have taken place at the premises of the Vanderbijlpark Riot and Related Crimes Investigation Unit.
[12] The details of the serious assaults alleged and which form the basis of claims “B1” and “B2” are pleaded in paragraphs 9 and 11 respectively of plaintiff’s particulars of claim. Claim “C” is based on these same assaults, the relevant allegations being the following:
“15. The conduct referred to in paragraphs 9 and 11 above constitutes an infringement of the Plaintiff’s fundamental rights as enshrined and entrenched in chapter 3 of the Constitution of the Republic of South Africa, 1993 (Act 200 of 1993), as amended, more particularly the Plaintiff’s right to:
15.1 human dignity (Section 10);
15.2 freedom and security of the person (Section 11(1) and 11(2));
15.3 privacy (Section 13); and
15.4 to be arrested and detained in accordance with the provisions of Section 25(1) and 25(2) of the Constitution. [What the pleader of course really intended, and this is what the pleading will be taken to mean (for so it was apparently understood throughout the case), was to assert plaintiff’s right “not to be arrested or detained except in accordance with the provisions of Section 25(1) and 25(2) of the Constitution”.]
16. The aforesaid infringement of the Plaintiff’s fundamental rights forms part of wide-spread and persistent similar infringements of the fundamental rights of other South African citizens by members of the South African Police Services, in particular in Vanderbijlpark.
17. Having regard to the conduct of the Defendant’s employees, referred to in paragraphs 9 and 11 above, and to the infringements of the Plaintiff’s fundamental rights, the Plaintiff is entitled to be awarded constitutional damages in the amount of R200 000,00, which amount includes an element of punitive damages.”
[13] For claims “B1” and “B2” damages in a total amount of R130 000,00 are claimed comprising R50 000,00 for pain and suffering, R50 000,00 for loss of enjoyment of the amenities of life and shock, R10 000,00 for contumelia and R20 000,00 as special damages in respect of past and future medical expenses. Claim “C” is pertinently limited to recovering “constitutional damages” in the sum of R200 000,00 which amount is stated to include “an element of punitive damages”. Such damages are being sought in consequence of the same events and conduct which found claims “B1” and “B2” but only in respect of the infringement of plaintiff’s Chapter 3 rights as detailed in paragraph 15 of the particulars of claim. In claim “C” plaintiff is therefore limiting his relief to the recovery of specific damages over and above those to which he would be entitled at common law in consequence of the aforementioned events and conduct. These additional damages are characterised by plaintiff as “constitutional damages” which include “an element of punitive damages.”
[14] The exception that claim “C” does not disclose a cause of action was formulated as follows –
“3.1 an action for damages in the nature of constitutional damages does not exist in law; and/or
3.2 an order for the payment of damages does not qualify as appropriate relief as contemplated in Section 7(4)(a) of the Constitution.”
Although the exception is pleaded in wide and rather abstract terms, it is to be limited to the facts of the claim under attack. The narrow issue is whether, for the same assaults as are pleaded in claims “B1” and “B2” the plaintiff is entitled, in addition to the damages claimed for these assaults in these claims, to recover “constitutional damages” which include “an element of punitive damages.”
The judgment in the court below
[15] Section 7(4)(a) of the interim Constitution provides as follows:
“When an infringement of or threat to any right entrenched in this Chapter is alleged, any person referred to in paragraph (b) shall be entitled to apply to a competent court of law for appropriate relief, which may include a declaration of rights.”
In dealing with the foreign jurisprudence on constitutional damages Van Schalkwyk J referred to section 24(1) of the Canadian Charter of Rights and Freedoms (“Canadian Charter”) which provides:
“Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.” (Emphasis supplied)
The learned judge pointed out[9] that although certain of the lower Canadian courts have awarded constitutional damages, the Canadian Supreme Court has not yet done so. In considering the United States authorities he pointed out that while the Supreme Court had recognised a claim for constitutional damages, this remedy had grown out of the peculiarities intrinsic to United States jurisprudence and provided little real guidance.[10]
He reached a similar conclusion in relation to judgments of the European Court of Human Rights which have awarded damages for infringements of rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms (“European Convention”).[11]
[16] In dealing with the submission of plaintiff’s counsel that the common law does not provide a remedy sufficient to accentuate the importance of human rights violations, Van Schalkwyk J referred to passages from certain Appellate Division judgments where it was held that in the case of aggravated and malicious defamation, substantial damages should be awarded, not only by way of compensation for the plaintiff but also “by way of penalty upon the defendant for his aggravated and malicious defamation”[12] and that in the case of abuses of authority involving deliberate aggression upon the personal dignity and liberty of prisoners the award of damages could properly serve a penal purpose.[13] In view of these judgments the learned judge considered the following dicta of Hattingh J in Esselen v Argus Printing and Publishing Co Ltd and Others[14] to be overstated –
“In general, a civil court, in a defamation case, awards damages to solace plaintiff’s wounded feelings and not to penalise or to deter the defendant for his wrongdoing nor to deter people from doing what the defendant has done. Clearly punishment and deterrence are functions of the criminal law, not the law of delict.”[15]
Relying on the provisions of sections 35(1) and (3) of the interim Constitution,[16] Van Schalkwyk J considered that in the circumstances created by the interim Constitution the common law could, in most cases by only slight modification, be adapted to the extent necessary to bring it into harmony with the Constitution and that in this way the plaintiff’s needs for an adequate remedy, which might include punitive damages, could be met.[17] While accepting that, strictly speaking, there is no delict of “torture” in its own name in our law, the learned judge pointed out that the common law does recognise different degrees of assault and that where plaintiffs prove that they have been tortured the particular malevolence associated with such unlawful acts “can be accommodated within the common law by an appropriate (and if needs be, punitive) order for the payment of damages.”[18]
The contentions in this Court
[17] In their helpful arguments, counsel for the respective parties followed substantially the same lines as in the court a quo, although much elaborated. The plaintiff’s argument can be summarised as follows. Section 7(4)(a) of the interim Constitution establishes a separate cause of action, a public law action directed against the state, based on the infringement of a fundamental right entrenched in Chapter 3. The objectives of the law of delict differ fundamentally from those of constitutional law. The primary purpose of the former is to regulate relationships between private parties whereas the latter, to a large extent, aims at protecting the Chapter 3 rights of individuals from state intrusion. Similarly the purpose of a delictual remedy differs fundamentally from that of a constitutional remedy. The former seeks to provide compensation for harm caused to one private party by the wrongful action of another private party whereas the latter has as its objective (a) the vindication of the fundamental right itself so as to promote the values of an open and democratic society based on freedom and equality and respect for human rights; (b) the deterrence and prevention of future infringements of fundamental rights by the legislative and executive organs of state at all levels of government; (c) the punishment of those organs of state whose officials have infringed fundamental rights in a particularly egregious fashion; and (d) compensation for harm caused to the plaintiff in consequence of the infringement of one or more of the plaintiff’s rights entrenched in Chapter 3. The common law remedies are not directed to the achievement of the first three of these objectives and the common law should not be distorted by requiring it to perform these functions and fulfil the purposes of constitutional law. Hence the necessity, so the argument concludes, for a specific and separate public law constitutional damages remedy.
[18] In essence the issues raised by the plaintiff turn on the proper construction of section 7(4)(a) of the interim Constitution which entitles any (relevant) person “to apply to a competent court of law for appropriate relief, which may include a declaration of rights”. The interim Constitution is the supreme law. It confers rights on persons and tells them that they may look to the courts for the protection and enforcement of such rights. The interim Constitution is prescriptive as to how rights should be enforced or protected only to the extent that it requires the competent court, if it finds that “any law or any provision thereof” is inconsistent with the interim Constitution, to “declare such law or provision invalid to the extent of its inconsistency”.[19] But even then, the court is given the power by section 98(5) to direct that the unconstitutional law shall remain in force for a period of time to enable Parliament to correct the law and bring it into conformity with the interim Constitution. Otherwise, the only requirement of the interim Constitution is that the relief given by a competent court in any particular case should be “appropriate relief”. It is left to the courts to decide what would be appropriate relief in any particular case.
[19] Appropriate relief will in essence be relief that is required to protect and enforce the Constitution.[20] Depending on the circumstances of each particular case the relief may be a declaration of rights, an interdict, a mandamus or such other relief as may be required to ensure that the rights enshrined in the Constitution are protected and enforced. If it is necessary to do so, the courts may even have to fashion new remedies to secure the protection and enforcement of these all important rights.
[20] It needs to be emphasised again that the issue we are called upon to decide is a narrow one. We are not required to answer the question raised by the exception in the broad terms in which it was framed, nor as it was presented in plaintiff’s argument; namely, whether an action for damages in the nature of constitutional damages exists in law and whether an order for payment of damages qualifies as appropriate relief for purposes of section 7(4)(a) of the interim Constitution in respect of a threat to or infringement of any of the rights in Chapter 3. We are concerned with the much narrower task of answering these questions only in relation to the rights allegedly infringed in the present case and then only in respect of the separate claim for constitutional damages as formulated in paragraph 17 of claim “C”.
[21] This is, however, the first occasion on which this Court has been required to rule on the meaning and effect of section 7(4)(a) of the interim Constitution. Particularly in the new legal order introduced by the interim Constitution, a judgment on the construction of a provision such as this is of concern not only to the immediate litigants in the case but also to all other persons whose Chapter 3 rights might have been or might be infringed; indeed it has implications for constitutional litigation generally. It may well be that, generally speaking, it is prudent not to “anticipate a question of constitutional law in advance of the necessity of deciding it”.[21] There are, however, occasions when such an approach, if it were to preclude all discussion of matters not strictly relevant to the decision at hand, could be misleading to the public and could incorrectly or incompletely portray the effect of a judgment and indeed the development of constitutional jurisprudence on a particular topic.[22] I believe that such dangers lurk in deciding the present case for reasons which are too narrowly formulated, albeit that they might be technically sufficient. In the present case it is essential to place the issue, narrow as it may be, in its correct jurisprudential context, both nationally and internationally. The issue is limited to constitutional damages. Plaintiff sought no non-pecuniary relief whether by way of prohibitory or mandatory interdict or otherwise. Nothing in this judgment must therefore be construed as foreclosing any future consideration of any of these or other remedies as constituting appropriate relief in the circumstances of a particular case.
[22] As the matter is to be dealt with as on exception, the correctness of the allegations made in the summons must be assumed. The allegations included not only an averment that certain of the plaintiff’s fundamental rights have been infringed, but also that the infringement formed part of “widespread and persistent similar infringements of the fundamental rights of other South African citizens by members of the South African Police Services, in particular in Vanderbijlpark”. It was contended that in these circumstances the “constitutional damages” claimed would be an appropriate form of relief.
[23] The “constitutional damages” are claimed by the plaintiff in addition to the common law damages to which he would be entitled for the assault on which the action is founded. It is contended that these “constitutional damages” are required to enforce the provisions of the Constitution and are appropriate in order to achieve any of the ends mentioned in paragraph 17(a), (b) and (c) above.
[24] The plaintiff placed considerable reliance on foreign law, alleged to be comparable for purposes of section 35(1) of the Constitution, in support of his argument both on the nature as well as on the content of the relief envisaged by section 7(4)(a). More than the usual caution[23] is necessary in the present enquiry since the law of delict/torts differs in various legal systems, certain judicial systems and their legal remedies are divided along federal and state lines, sovereign immunity is not treated identically and the nature and histories of the various constitutional dispensations are not the same. In order to avoid tedious repetition, the nature and the content of the remedy will be considered together when evaluating the foreign authorities.
United States
[25] A few preliminary observations may be helpful in trying to evaluate the relevance of United States jurisprudence. In the first place it should be noted that the federal/state divide plays a significant role in United States jurisprudence in this regard. Second, it is to be observed that remedies for constitutional infringement arise from basically two sources, the relief provided by section 1983 of the Civil Rights Act, 1871[24] and constitutional damages based directly on the Constitution. Third, it must be borne in mind that claims in tort fall within the jurisdiction of state courts.[25] Fourth, the role of state immunity must not be lost sight of.[26]
[26] Section 1983 United States Code ("USC") has been an important federal statutory remedy, in respect whereof the states have concurrent jurisdiction, to enforce rights protected by the Constitution.[27] In 1961 in Monroe v Pape[28] the Supreme Court held that section 1983 afforded a federal remedy which was supplementary to any appropriate state remedy and that the latter need not be exhausted before invoking the federal one.[29] It was abundantly clear, so the Court pointed out, that
“one reason the legislation was passed was to afford a federal right in federal courts because, by reason of prejudice, passion, neglect, intolerance or otherwise, state laws might not be enforced and the claims of citizens to the enjoyment of rights, privileges, and immunities guaranteed by the Fourteenth Amendment might be denied by the state agencies.”[30]
The action could initially only be used against state and other local officials and employees in their personal capacities, for the Court held that a municipality was not a “person” for purposes of section 1983 and consequently not liable to be sued.[31] This part of the judgment was overruled in Monell v New York City Department of Social Services[32] which held that municipalities and other local authorities could be directly liable but only in very limited circumstances[33] and expressly not on grounds of vicarious liability only.[34] Since 1961 section 1983 claims in federal courts have rapidly escalated.[35]
[27] States themselves are immune from section 1983 claims brought by individuals in federal courts because of the provisions of the Eleventh Amendment,[36] as is the US Government under common law,[37] unless and to the extent that such sovereign immunity
is waived.[38] Although the Federal Tort Claims Act 28 USC sections 2671 et seq (“FTCA”), as amended, constitutes a waiver of the sovereign immunity of the United States and permits an injured claimant to recover damages from the United States, the position of the United States is not fully equated with that of the private defendant; the claimant pursuing a claim in terms of the FTCA is “remitted to the vagaries of state law” and in many cases will recover even less than under state law “because the statute is hedged with protections for the United States” and “simply is not an adequate remedy.”[39] These aspects are relevant to and must be kept in mind when evaluating the United States Supreme Court cases most relied upon by the plaintiff, namely those establishing an action for damages directly under the Constitution.
[28] Before turning to those decisions, it is convenient to consider briefly the content of the damages awarded in section 1983 claims. Consistent with the availability of punitive damages in ordinary tort suits in the United States, punitive damages against officials in their personal capacities are, in the appropriate circumstances, available in section 1983 actions.[40]
[29] It is significant, however, that punitive damages are not available against municipalities.[41] The public policy reasons advanced for such finding are relevant to the eventual decision to be reached in this judgment. In Newport v Facts Concerts Inc[42] Blackmun J, after reviewing common law authorities covering over a century which had consistently denied such punitive damages, examined the objectives of punitive damages in general and their relationship to the goals of section 1983. He rejected the concept of retribution against a municipality, pointing out that punitive damages only punished innocent taxpayers and constituted a windfall to a fully compensated plaintiff.[43] The learned judge also rejected the deterrence rationale for making punitive damages available against municipalities.[44]
[30] It is also to be noted that even in the case of constitutional breaches no damages for the abstract value of the right infringed are awarded, only nominal damages. In the case of Carey v Piphus[45] two public school students had been suspended from school without procedural due process. The Court held that, in the absence of proof that the lack of due process had caused actual damages, the students were entitled to recover nominal damages of $1 only.[46] The Court held that although mental and emotional distress caused by the denial of procedural due process itself is compensable under section 1983, “neither the likelihood of such injury nor the difficulty of proving it is so great as to justify awarding compensatory damages without proof that such injury actually was caused.”[47]
[31] The judgment in Memphis Community School District v Stachura[48] concerned the violation of the plaintiff’s First Amendment right to academic freedom as a teacher. It confirmed the approach adopted in Carey v Piphus,[49] and emphasised that when plaintiffs invoke section 1983 to seek damages for violations of constitutional rights the level of damages is ordinarily determined according to principles derived from the common law of torts[50] and that, punitive damages aside, the basic purpose of section 1983 damages is to “compensate persons for injuries that are caused by the deprivation of constitutional rights”[51] and that there was simply no room for “noncompensatory damages measured by the jury’s perception of the abstract ‘importance’ of a constitutional right.”[52] The court also considered that the award of such damages was not necessary to vindicate the constitutional rights that section 1983 protects; damages that compensate for actual harm normally sufficing to deter constitutional violations.[53] The court moreover considered that damages based on the “value” of constitutional rights were “an unwieldy tool for ensuring compliance with the Constitution”.[54]
[32] In a separate concurring judgment, Justice Marshall (joined by Justices Brennan, Blackmun and Stevens) was at pains to point out, as was stated in Carey v Piphus[55] that common-law tort rules would not necessarily provide a complete solution to the damages issue, that compensation should be tailored to the interests protected by the particular right in question and that the elements and prerequisites for damages appropriate to compensating the infringement of one right might not be appropriate in the case of an infringement of another.[56] Justice Marshall warned against the “wooden application of common-law damages rules”[57] and pointed out that deprivation of a constitutional right could give rise to damages not contemplated by the common law.[58]
[33] The United States Supreme Court has also developed, directly under the Bill of Rights, a damages remedy against federal officials. In Bivens[59] the petitioner’s complaint alleged that agents of the Federal Bureau of Narcotics without warrant or probable cause entered the petitioner’s apartment and arrested him for alleged narcotics violations. The petitioner was manacled in front of his family, his apartment searched and at the federal courthouse he was subjected to a visual strip search. The majority of the Supreme Court, per Brennan J, held that it had the power to fashion a damages remedy directly under the Constitution for the invasion of Bivens’ personal interests protected by the Fourth Amendment, despite the fact that the Fourth Amendment made no express provision for a remedy in damages; Bivens was not limited to seeking a remedy under ordinary tort law.[60] It is important to appreciate that, at the time of the Bivens judgment, sovereign immunity had not yet suffered the substantial curtailment effected by the 1976 amendment of the FTCA.[61] This is markedly different from the position in South Africa.[62] A further relevant, and distinguishing feature, is the majority’s view in Bivens that the “niceties of local trespass laws” were remedially inadequate,[63] and that the interests protected by state laws regulating trespass and the invasion of privacy might be inconsistent with the Fourth Amendment guarantee.[64] While these features certainly counsel considerable caution when seeking guidance from United States Supreme Court jurisprudence regarding the content of a suitable constitutional damages remedy, the views expressed concerning the essential nature of the remedy might, in a more general normative sense, be instructive.
[34] In Bivens Brennan J stressed the completely independent nature of the constitutional damages remedy to protect Fourth Amendment rights.[65] He regarded the Fourth Amendment right in question as “an independent limitation upon the exercise of federal power”.[66] The learned justice stressed the different function of the law when dealing with the rights of individuals inter se as compared to dealing with individual rights against the State[67] and Justice Harlan in his concurring opinion stressed the particular responsibility on the judiciary to vindicate the constitutional interests of individuals entrenched in the Bill of Rights.[68]
[35] Bivens has been followed by the Supreme Court in subsequent cases, applying the damages remedy to violations of the Fifth and Eighth Amendments.[69] In Davis v Passman[70] the complainant based her claim on sex discrimination and founded it on a direct violation of the Fifth Amendment. The Supreme Court held that she had a cause of action for damages, implied directly under the equal protection component of the Fifth Amendment.[71] In evaluating the relevance of this judgment in regard to the content of the relief granted, it must be borne in mind that the petitioner had no other remedy she could avail herself of[72] and “[f]or Davis, as for Bivens, ‘it is damages or nothing.’”[73]
[36] In Carlson v Green[74] the plaintiff sued on behalf of her deceased son’s estate alleging that her son had died as a result of personal injuries because defendant’s prison officials violated, inter alia, his Eighth Amendment rights by failing to give him proper medical attention. She claimed compensatory and punitive damages. The Court held that the plaintiff could avail herself of a Bivens-type action for damages.
[37] Delivering the opinion of the Court, Brennan J pointed out that such a cause of action can be defeated inter alia when the defendant shows “that Congress has provided an alternative remedy which is explicitly declared to be a substitute for recovery directly under the Constitution and viewed as equally effective”[75] and detailed four factors which demonstrated that the Bivens remedy was more effective than the FTCA remedy. First, because it is recoverable against individuals it is a more effective deterrent than the FTCA remedy against the United States.[76] (I pause to point out that this distinction does not apply in our law of delict, where the vicarious liability of the state does not exclude recourse against the individual tortfeasor). Second, because punitive damages may be awarded in a Bivens suit, such damages normally being available in the federal courts, whereas punitive damages in a FTCA suit are statutorily prohibited; the latter action therefore being much less effective than a Bivens action as a deterrent to unconstitutional acts.[77] Third, a plaintiff cannot opt for a jury in a FTCA action as he may in a Bivens suit.[78] Fourth, an action under the FTCA exists only if the State in which the alleged misconduct occurred would permit a cause of action for that misconduct to go forward, whereas the liability of federal officials for violations of citizens’ constitutional rights should be governed by uniform rules.[79] The judgment in this case aptly illustrates how unique the United States situation is when it comes to constitutional torts.
Canada
[38] Unlike the United States of America, but like South Africa in this regard, the Canadian Charter of Rights and Freedoms (“the Charter”) provides expressly in section 24(1) for an “appropriate and just” remedy when rights or freedoms guaranteed by the Charter have been infringed or denied.[80] The Saskatchewan Court of Appeal has held that appropriateness relates to the efficacy and suitability of the remedy viewed from the perspective of the complainant and the right violated, whereas justness is a wider concept relating to the interests of all affected by the remedy.[81] Section 7(4)(a) of the interim Constitution speaks only of “appropriate relief”. Construed purposively, however, I see no material difference between the two concepts. It can hardly be argued, in my view, that relief which was unjust to others could, where other available relief meeting the complainant’s needs did not suffer from this defect, be classified as appropriate. In applying section 7(4)(a) the interests of the both the complainant and society as a whole ought, as far as possible, to be served.
[39] The Canadian Supreme Court has not yet pronounced on the issue whether constitutional damages constitute, in suitable cases, an appropriate and just remedy for Charter violations but it appears to be generally accepted that this is the case,[82] although such a remedy has not as yet been extensively used.[83] In McKinney v University of Guelph[84] the majority of the Canadian Supreme Court found it unnecessary to decide the issue. Wilson J, in dissent, having found that plaintiffs’ rights to equality, guaranteed by section 15 of the Charter, had been infringed by the universities’ mandatory retirement age of 65, and that such infringement could not be justified in terms of section 1, considered it appropriate and just, in addition to full reinstatement, to award compensatory damages for the loss of income and benefits sustained by the plaintiffs through the breach of their section 15 rights. Wilson J held that the purpose of the damages was to make the “injured party whole” and that there was no need for additional relief.[85] The judgment makes plain that the nature of the relief thus proposed is constitutional, Wilson J expressly holding that “the remedial scope of s. 24(1) was not intended to be limited to that available at common law.”[86] Various appellate courts in Canada have found that an action for constitutional damages is an appropriate and just remedy.[87] The real issue is what the content of the damages remedy ought to be.
[40] Exemplary or punitive damages as Charter remedies have been awarded in several cases.[88] This must, however, be seen in the light of the fact that Canada’s private law system of torts which, in common with that of other common law countries, recognises exemplary or punitive damages in appropriate circumstances in ordinary tort claims, but goes somewhat further even than courts in the United Kingdom.[89]
[41] Concerns about punitive damages were expressed by the Supreme Court of Canada in the Vorvis case[90] where the following was stated by McIntyre J for the majority
“Problems arise for the common law wherever the concept of punitive damages is posed. The award of punitive damages requires that:
‘. . . a civil court . . . impose what is in effect a fine for conduct it finds worthy of punishment, and then to remit the fine, not to the State Treasury, but to the individual plaintiff who will, by definition, be over-compensated.’
(Waddams, The Law of Damages [2nd Ed. (1983)] at 563). This will be accomplished in the absence of the procedural protections for the defendant - always present in criminal trials where punishment is ordinarily awarded - and upon proof on a balance of probabilities instead of the criminal standard of proof beyond a reasonable doubt.”[91]
The United Kingdom
[42] The nature of the United Kingdom constitution is such that it does not offer assistance on the question of constitutional remedies or damages in the present enquiry. Its judgments are instructive, however, on the issue of punitive damages generally. In the leading United Kingdom case of Rookes v Barnard[92] an important distinction was drawn between an award of exemplary damages and one of aggravated damages.[93] The object of damages is normally to compensate whereas the object of exemplary damages is to punish and deter.[94] Aggravated damages fall under the compensatory principle, and are awarded where the injury to the plaintiff has been aggravated by the way in which the defendant has behaved.[95] Lord Devlin saw the true purpose of exemplary damages in “restraining the arbitrary and outrageous use of executive power”[96] and limited their award to three categories, the nature of which is not relevant for present purposes.
[43] Lord Devlin did, however, express considerable misgivings about the award of exemplary damages. He considered that “[i]t may well be thought that [the object of exemplary damages] confuses the civil and criminal functions of the law” and that it was “an anomaly”.[97] The learned Law Lord was concerned that exemplary damages could also be used against liberty.[98] Pointing out that aggravated damages could do most, if not all, the work that could be done by exemplary damages he remarked –
“I do not care for the idea that in matters criminal an aggrieved party should be given an option to inflict for his own benefit punishment by a method which denies to the offender the protection of the criminal law.”[99]
[44] Broome v Cassell & Co[100] was a libel case in which a jury had inter alia awarded £25,000 exemplary damages to the successful plaintiff. An ultimate appeal to the House of Lords against such award was dismissed, the House in its judgment confirming Lord Devlin’s main conclusions in Rookes v Barnard.[101] While not a case of constitutional damages, the judgment contains instructive passages on public policy in regard to the award of exemplary (punitive) damages generally, which go beyond the technicalities of damages for libel in English law or particular and distinguishable features of jury trials.
[45] The condemnation in principle of punitive damages in civil cases by Lord Reid (who had concurred with Lord Devlin’s judgment in Rookes v Barnard) but who considered the principle so firmly established that only Parliament could intervene, is worthy of repetition. The learned Law Lord pointed out that
“[d]amages for any tort are or ought to be fixed at a sum which will compensate the plaintiff, so far as money can do it, for all the injury which he has suffered.”[102]
He explained that aggravated damages, although in a sense punitive, still fell within the true compensatory principle.[103] His principal objection was to purely punitive damages, where the plaintiff was given “a pure and undeserved windfall at the expense of the defendant [who] . . . was being subjected to pure punishment”.[104] He considered punitive damages to be highly anomalous, that they confused the functions of the civil law with those of the criminal law and contravened almost every principle which has been evolved for the protection of offenders.[105]
Trinidad and Tobago
[46] Maharaj v Attorney-General of Trinidad and Tobago (No. 2)[106] is even more explicit in its categorisation of the remedy for breach of a constitutional right as a public law remedy which goes beyond that available in the common law. The appellant, a member of the Bar of Trinidad and Tobago, had been wrongly committed for contempt of court in breach of his constitutional right not to be deprived of liberty without due process of law,[107] for which breach a plaintiff was entitled “without prejudice to any other action with respect to the same matter which is lawfully available” to “apply to the High Court for redress”.[108] In rejecting an argument that the granting of a remedy for such a breach would “subvert the long established rule of public policy that a judge cannot be made personally liable in court proceedings for anything done by him in the exercise or purported exercise of his judicial functions”,[109] Lord Diplock, delivering the judgment of the majority of the Privy Council, stressed the public law nature of the remedy as follows:
“The claim for redress under section 6(1) for what has been done by a judge is a claim against the state for what has been done in the exercise of the judicial power of the state. This is not vicarious liability; it is a liability of the state itself. It is not a liability in tort at all; it is a liability in the public law of the state, not of the judge himself, which has been newly created by section 6(1) and (2) of the Constitution.”[110] (emphasis supplied)
and,
“The claim is not a claim in private law for damages for the tort of false imprisonment, under which the damages recoverable are at large and would include damages for loss
of reputation. It is a claim in public law for compensation for deprivation of liberty alone.”[111] (emphasis supplied)
The Privy Council found it unnecessary to express any view as to whether money compensation by way of redress could ever include an exemplary or punitive award.[112]
New Zealand
[47] In Simpson v Attorney-General (Baigent’s case),[113] decided in the New Zealand Court of Appeal, the same conclusion regarding the public law nature of the remedy was reached, where it was held that such a remedy existed despite the fact that the New Zealand Bill of Rights Act 1990 made no express provision therefor. The plaintiff had instituted, amongst others, an action for damages for an unreasonable search of premises in violation of section 21 of the New Zealand Bill of Rights Act 1990[114] and the judgment was premised on an acceptance of the fact that such a violation had occurred. One of the defences raised was that certain New Zealand statutes provided exemption from state liability.[115] This was rejected, firstly on the basis that none of these provisions was directed to “Bill of Rights liability”[116] and, secondly, because of the particular nature of the constitutional remedy provided.[117]
[48] After accepting and approving the analysis in Maharaj’s case, Cooke P emphasised that the remedy was a constitutional public law remedy and not a common law one:
“The [Maharaj] analysis has procedural consequences of practical importance. As Casey J points out, the question of the appropriate remedy, among the range available, for a particular case clearly does not lend itself to determination by a jury. It is naturally the responsibility of a Judge. Further, it seems to me that monetary compensation for breach of the Bill of Rights is not ‘pecuniary damages’ within the meaning of the Judicature Act 1908, s 19A. That section is referring to common law damages, not public law compensation. This is more than a fine point as to the meaning of ‘damages’ . . .” (emphasis supplied)[118]
In his concurring judgment Casey J emphasised the overarching nature of the public law remedy involved and cautioned against attempts simply to adapt common law remedies to this end.[119] The learned Judge was of the view that an adequate public law remedy could be some non-monetary option and that a remedy ought to be selected which best vindicated the right infringed.[120]
[49] As to the objectives and content of the remedy, and how possibly overlapping remedies are to be dealt with, Cooke P said the following in the context of a case where damages was the only appropriate and effective remedy:
“As to the level of compensation, on which again there is much international case law, I think that it would be premature at this stage to say more than that, in addition to any physical damage, intangible harm such as distress and injured feelings may be compensated for; the gravity of the breach and the need to emphasise the importance of the affirmed rights and to deter breaches are also proper considerations; but extravagant awards are to be avoided. If damages are awarded on causes of action not based on the Bill of Rights, they must be allowed for in any award of compensation under the Bill of Rights so that there will be no double recovery. A legitimate alternative approach, having the advantage of simplicity, would be to make a global award under the Bill of Rights and nominal or concurrent awards on any other successful causes of action.”[121]
Ireland
[50] The Irish Courts have recognised that, as custodians of constitutional rights, their powers in regard to the infringement of such rights are as ample as the defence of the Constitution requires; that even where such infringement does not constitute a tort the state may still be held liable; that sovereign immunity cannot be invoked by the state as a defence when its organs have breached such rights or failed to discharge their constitutional obligations; and that such rights can be protected or enforced by action even though such action might not fit into any previously recognised form of relief.[122]
India
[51] The courts in India have recognised the public law nature of the remedy for the infringement of a constitutional right.[123] In the Nilabati Behera case[124] it was pertinently held that the defence of sovereign immunity was inapplicable and alien to the concept of guaranteeing fundamental rights and that there could be “no question of such a defence being available in the constitutional remedy”. Verma J pointed out that for this public law remedy to serve its proper function the Court was obliged to forge new tools in order to do complete justice.[125] The remedy for constitutional damages has been fashioned from Article 32 of the Constitution[126] despite the fact that it contains no express reference to damages. A wide range of creative remedial remedies have also been granted under its terms.[127]
Sri Lanka
[52] In Saman v Leeladasa and Another[128] the Sri Lankan Supreme Court has, in its application of Article 126 of the Sri Lankan Constitution,[129] unequivocally recognised that the claim for redress provided therein for the violation of a fundamental right is a new public law remedy, imposed directly on the state by the constitution and not one in delict based on vicarious liability.[130] The Sri Lankan jurisprudence is also instructive on the content of these remedies, emphasising that where compensation is awarded for the breach of a fundamental right it is by way of a solatium for the hurt caused and “not as a punishment for duty disregarded or authority abused.”[131] The idea of using a constitutional damages remedy as a deterrent against the state is rejected, not only as being futile but also because it ultimately shifts the burden to the taxpayer.[132] Orders, other than for compensation, have been made for violations of fundamental rights. A mandamus has been granted against the Commissioner of Elections to register a political party when this had been refused in breach of the prohibition against discrimination;[133] authorities have been directed to take disciplinary action against the delinquent officer who perpetrated an assault on a prisoner[134] and guidelines indicated for the training and deployment of railway officers.[135]
Germany
[53] On the question of constitutional damages generally, the German law provides no direct assistance. I have found no reference to a remedy categorized as a constitutional remedy derived directly from the German Basic Law (“GG”). The GG has no specific remedial provision for the infringement of any of the basic rights entrenched in articles 1 to 19. Article 34 merely enacts remedies for neglect of duty by a state official,[136] which are developed in detail by section 839 of the German Civil Code (“CC”). Section 823 is the main provision in the CC establishing general delictual liability, which is elaborated in the later provisions. Section 839 is regarded as a lex specialis and is the only provision which can be invoked to provide a remedy in the case of a breach of official duty.[137] Apparently a claim for breach of a basic right cannot be instituted directly under the GG. Of greater significance, however, is the fact that there are no punitive damages under German law.[138]
The European Convention for the Protection of Human Rights
[54] The jurisprudence under the European Convention offers at most marginal assistance in the present enquiry, due in part to the fact that it is an international, albeit regional, instrument applicable to sovereign states.[139] Its interpretation and application bring different considerations into play such as having to determine the bounds of national sovereignty[140] and at the same time having to interpret the independent standards set by the convention against which domestic laws are tested.[141] Article 13 of the Convention[142] provides that everyone whose Convention rights or freedoms have been violated has a right to “an effective remedy before a national authority.” It is to be noted that this is not a direct remedy granted by the European Court of Human Rights itself but an obligation on the contracting states. The Court itself can, in terms of Article 50,[143] award “just satisfaction to the injured party” if only “partial reparation” is allowed by domestic law and several monetary awards have been made under Article 50,[144] but this is unhelpful in deciding what the nature of the remedy in domestic law is. Article 13 does not specify the nature of the domestic remedy it prescribes and jurisprudence under the Convention tends to emphasise the necessity of access to a domestic forum for the investigation and redress of the complaint rather than the nature of such remedy.[145] Deference is also shown to the constitutional structure of a contracting state. The Commission has held that Article 13 does not impose an obligation on a state to create a constitutional remedy.[146] It does not go so far as to guarantee a remedy whereby a law of a contracting state which contravenes the Convention must be judicially reviewable by a domestic tribunal, where the Convention is not part of the domestic law of the state in question and where no constitutional right to judicial review of legislation for non-observance of fundamental rights exists in that state, as in the case of the United Kingdom.[147] Of some significance, however, is the view expressed by the Commission that the provision “notwithstanding that the violation has been committed by persons acting in an official capacity” in Article 13 is “mainly directed to exclude any doctrine of immunity of State organs”[148] which is compatible only with the remedy being a public law one, excluding reliance on sovereign immunity which might be available in common law or private law actions.
Summary of Foreign Jurisprudence
[55] The foregoing survey of the remedies granted in other jurisdictions for the breach of a constitutional right indicates that in most cases they are “public law” remedies (to employ for the moment the nomenclature used in certain of the foreign jurisdictions). My understanding of the United States jurisprudence is that both the section 1983 relief as well as the award of constitutional damages based directly on the Constitution should be seen as legislative and judicial responses to the perceived inadequacy of the common law tort remedies. This inadequacy arises from the limitations placed on relief in tort by various manifestations of the principle of sovereign immunity and vicarious liability and by the vagaries and inconsistencies of tort law, which falls within the jurisdiction of state courts. The responses differ, however. The section 1983 response is basically a statutory extension of a remedy which still is fundamentally a common law tort remedy. On the other hand the remedy developed in the Bivens[149] and similar cases discussed above appears to have a marked “public law” character. The plaintiff is not limited to a remedy under ordinary tort law. The remedy is a completely independent remedy. It differs from that granted between two private citizens and it is one particularly intended to “vindicate the interests of the individual in the face of the popular will as expressed in legislative majorities”.[150] The “public law” nature of the remedy under the Canadian Charter is clearly albeit perhaps implicitly recognised and express recognition of the “public law” nature of similar remedies has been given under the New Zealand Bill of Rights and the Constitutions of Trinidad and Tobago, India and Sri Lanka.
The nature of the remedy under section 7(4) of the Interim Constitution.
[56] The operative words in section 7(4), “infringement of or threat to any right entrenched in this Chapter” and “shall be entitled to apply to a competent court of law for appropriate relief ”(emphasis added) are of wide import. They are conceptually similar to the corresponding provisions in the constitutional instruments of Canada,[151] Trinidad and Tobago,[152] and Sri Lanka.[153] It must moreover be borne in mind that in the United States, Ireland and New Zealand these constitutional public law remedies have been granted in the absence of any express constitutional remedial provision.
[57] While the foreign jurisprudence referred to emphasises that the proper protection of entrenched fundamental rights requires a “public law” remedy, it is preferable, for the present, to refer to the “appropriate relief” envisaged by section 7(4) merely as a “constitutional remedy”. It is both undesirable and unnecessary, for purposes of this case, to attempt to do that which has seemingly eluded scholars in the past and given rise to wide differences of opinion among them, namely, the drawing of a clear and permanent line between the domains of private law and public law and the utility of any such efforts.[154] Much of this interesting debate is concerned with an analysis of power relations in society; the shift which has taken place in the demarcations between “private law” and “public law”; how functions traditionally associated with the state are increasingly exercised by institutions with tenuous or no links with the state; how remedies such as judicial review are being applied in an ever widening field and how legal principles previously only associated with private legal relations are being applied to state institutions. Suffice it to say that it could be dangerous to attach consequences to or infer solutions from concepts such as “public law” and “private law” when the validity of such concepts and the distinctions which they imply are being seriously questioned.
[58] In considering how other jurisdictions have forged new remedies to deal with breaches of constitutional rights it is important to bear in mind differences that exist between South African law and procedure and the law and procedure in force in those jurisdictions. These differences have already been referred to in the discussion of the foreign law. The most important differences for present purposes are:
(a) Chapter 3 of the interim Constitution is binding on all legislative and executive organs of state at all levels of government. The separate federal and state court systems, resulting from the federal/state divide, which has influenced the development of the United States law in regard to “constitutional damages”, do not exist in South Africa. Here we have a unitary and not a federal court system, and it follows that claims for damages under the common law and claims for damages for breaches of constitutional rights will ordinarily be dealt with at first instance by the same court.[155]
(b) The South African common law of delict is flexible and under section 35(3) of the interim Constitution should be developed by the courts with “due regard to the spirit, purport and objects” of Chapter 3.[156] In many cases the common law will be broad enough to provide all the relief that would be “appropriate” for a breach of constitutional rights. That will of course depend on the circumstances of each particular case. It is unnecessary, for purposes of this judgment to consider whether, for purposes of the relief envisaged by section 7(4)(a), vicarious liability is an adequate or acceptable basis for state liability in the circumstances of a case such as this.[157]
(c) The South African law of sovereign immunity differs materially from the law in force in those jurisdictions where it has been necessary to develop a “public law” remedy in order to hold the state liable for conduct which constitutes a breach of the Constitution, but in respect of which the state would have been immune from liability under the common law or particular statutes. These considerations do not apply with nearly the same force under South African law; but the question must be left open whether the current South African law relating to state liability is consistent with the interim Constitution and in particular with the provision for “appropriate relief” in section 7(4)(a).[158]
[59] These differences are material to the applicability, within the framework of South African law, of constitutional remedies developed in other jurisdictions. A further relevant factor is that certain rights in Chapter 3 of the interim Constitution may be,[159] and Chapter 2 of the 1996 Constitution (to the extent indicated in section 8 thereof) will be,[160] applicable to relationships governed by “private law”.
[60] Notwithstanding these differences it seems to me that 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 Chapter 3 rights. 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,[161] and it would be strange if damages could not be claimed for, at least,[162] loss occasioned by the breach of a right vested in the claimant by the Supreme law. When it would be appropriate to do so, and what the measure of damages should be, will depend on the circumstances of each case and the particular right which has been infringed.
[61] For the purposes of the present case I will assume that “appropriate relief” in section 7(4)(a) includes an award of damages where such award is required to enforce or protect Chapter 3 rights. What has to be decided is whether on the allegations made in the pleadings the plaintiff would be entitled to the particular damages with which the exception is concerned. These are –
(a) damages to vindicate the fundamental rights of the plaintiff alleged to have been infringed, and
(b) punitive damages to deter and prevent future infringements of the fundamental rights in question by organs of the state and to punish those organs of the state whose officials infringed the plaintiff’s rights in a particularly egregious fashion.
“Punitive damages” or “exemplary damages” under South African law
[62] The question whether, in addition to compensatory damages, “penal” or “punitive” or “exemplary” damages (expressions often used interchangeably and confusingly) are (or ought to be) awarded in delictual claims is a matter of some debate in South Africa.[163] It appears to be accepted that in the Aquilian action and in the action for pain and suffering an award of punitive damages has no place.[164] The Appellate Division has, however, recognised that in the case of defamation punitive damages may in appropriate cases be awarded.[165] In the case of damages for adultery it has been accepted that a penal component is still appropriate.[166] It must of course be borne in mind that it is not always easy to draw the line between an award of aggravated, but still basically compensatory damages, where the particular circumstances of or surrounding the infliction of the injuria have justified a substantial award and the award of punitive damages in the strict and narrow sense of the word. There appears to be scant authority for the award of punitive damages in the case of assault, over and above the damages awarded for patrimonial loss, pain and suffering and for the contumelia suffered, which can itself be aggravated by the circumstances of and surrounding the assault. We were referred in argument to certain passages in the Appellate Division judgments in Whittaker v Roos[167] and Manamela v Minister of Justice and Others[168] as authority for the proposition that in these cases recognition had been given to the principle of awarding punitive damages in delictual claims based on assault. I am by no means certain that, seen in their proper context, these passages support the submission advanced.[169] They appear to be explicable on the basis of aggravated (but still compensatory or at least non-punitive) damages. It is unnecessary, however, to pursue this aspect any further, for in both cases the remarks were made in passing and do not constitute considered judgments regarding punitive damages for assault. On the somewhat different, but in the present context related issue of nominal damages, the position appears to be that in the past number of decades they have very seldom if ever been awarded in delictual claims.[170]
[63] Serious judicial doubts have been expressed concerning, and considerable academic criticism levelled against, the award of punitive damages in delictual claims.[171] Prof Van der Walt, whose views are broadly representative of academic criticism generally, expresses his misgivings succinctly as follows:
“The historical anomaly of awarding additional sentimental damages as a penalty for outrageous conduct on the part of the defendant is not justifiable in a modern system of law. The basic purpose of a civil action in delict is to compensate the victim for the actual harm done. In the case of impairment of personality by wrongful conduct it may be difficult to determine the amount of the solatium which will confer personal satisfaction or compensation for the injury, but in principle all factors and circumstances tending to introduce penal features should be rigorously excluded from such an assessment. The aim of discouraging evil and high-handed conduct is foreign to the basic purposes of the law of delict. It is for criminal law to punish and thereby discourage such conduct. The policy of awarding punitive damages unduly enriches the plaintiff who is entitled only to compensation for loss suffered. This policy has the added disadvantage of putting a wrongdoer in jeopardy of being punished twice - in the civil proceedings and in the criminal proceedings which could conceivably follow or which have preceded the civil action.”[172]
[64] The United States judgments do not present a uniform or cohesive picture. As far as the section 1983 remedy is concerned the States themselves are not automatically liable. Whereas punitive damages are, in appropriate circumstances, awarded against officials in their personal capacities in section 1983 actions such damages are not available against municipalities because it is considered unfair in the result to burden taxpayers, who took no part in the commission of the tort, with the obligation of providing a windfall to a fully compensated plaintiff and because it is questionable whether such an award against municipalities would have any deterrent effect at all.[173] Although nominal damages are aw