Constitutional and delictual damages for judicial acts and omissions : a review of Claassen and recent common law decisions

• Record Number: lesotho_v19_n2_a1
• Pages: 1-36
• Published date: 01 January 2012
• Date: 01 January 2012
• DOI: 10.10520/EJC192859
• Author: C. Okpaluba

CONSTITUTIONAL AND DELICTUAL

DAMAGES FOR JUDICIAL

ACTS AND OMISSIONS:

A REVIEW OF CLAASSEN AND

RECENT COMMON LAW DECISIONS

C. Okpaluba*

Abstract

It

is

a well-knawn

principle

of

the

common

law

that

a

judge

or

anyone

called

upon

to

discharge

judicial

duties

or

a

function

judicial

in

nature

is

immune

from

delictual/tortious

liability

in

the

absence

of

bad

faith,

malice

or

fraud.

To

that

extent

the

recent

decision

of

the

Western

Cape

Full

Court

in

Claassen

v Minister of

Justice

and

Constitutional

Development

and

Another

2010

(6)

SA

399,

2010

(2)

SACR

451,

[2010)

4 All

SA

197

(WCC)

correctly

states

the

law.

However,

this

article

explores

the

alternative

proposition

that

given

the

same

facts,

an

alternative

cause

of

action

could

be

brought

for

a

breach

of

the

constitutional

guarantee

of

the

right

to

personal

liberty

arising

from

the

same

judicial

error

in

Claassen.

It

is

in

this

regard

that

the

judgment of

the

Pn'vy

Council

in

Maharaj

v Attorney

General

of

Trinidad

&

Tobago

(No

2)

[1979)

AC

385

(PC)

becomes

relevant.

In

particular,

the

jurisprudence

embedded

in

Maharaj

operates

without

prejudice

to

the

concept

of judicial

immuniti;

and

vicarious

liability.

It

places

weight

on

the

protection

of individual

liberti;

as

against

judicial

error

and

systems

failure

in

the

administration of justice

for

which

the

State

must

bear

responsibility.

Since

the

facts

of

the

two

cases

are

closely

similar,

and

the

constitutional

guarantees

implicated

in

both

equally

comparable,

why

should

one

plain

tiff

succeed

while

the

other

fails?

In

the

final

analysis,

a

court

in

a constitutional

democracy

must

reconcile

the

tension

between

judicial

immunity

and

judicial

2 Constitutional & Delictuaf Damages

accountability

on

the

one

hand,

and

on

the

other,

the

protection

of

the

entrenched

rights.

It

is

the

absence

of

such

thorough

balancing

that,

jurisprudentially,

renders

Claassen

not a

completely

perfect

judgment.

Introduction

A discussion

of

the place

of

constitutional as

against

delictual

damages

in

contemporary

Commonwealth

constitutional

jurisprudence

brings1 to

the

fore

two

contrasting

and

seemingly

irreconcilable propositions. The first is

that

an

action for delictual

damages

does

not

lie against judicial officers

in

their

performance

of judicial functions. This is

due

to the

common

law

doctrine of

judicial

immunity

2 eminently restated

in

the

recent

judgment

of

the Full

Court

of

the

Western

Cape

in

Claassen

v Minister of

Justice

and

Constitutional

Development

and

Another.3

The second

emanates

from

the

decision of

the

Privy Council in

Maharaj

v Attorney

General

of Trinidad &

Tobago

(No

2)

4

which

held

that

constitutional

damages

can be recovered for loss of personal liberty occasioned

by

an

error

committed

by

a

judge

in adjudication.

Without

necessarily

engaging

in any elaborate discussion of the

Maharaj

cases or

the

ramifications of its principles,6 the

*

LLB,

LLM (London), PhD (West Indies), Professor of Law, National University

of Lesotho.

1 For a discussion of the role of

both

constitutional damages

and

delictual

damages

in

contemporary public law, see Okpaluba

and

Osode,

Government Liability: South Africa and

the

Commonwealth (Juta

and

Co

2010)

para

16

.2 (hereinafter Okpaluba

and

Osode).

2 Telematrix

(Pty)

Ltd

t/a

Matrix

Vehicle

Tracking

v Advertising Standards Authority

of

South Africa

[2006]

1 All SA

6,

2006

(1)

SA

461

(SCA) (Telematrix).

3 2010

(6)

SA 399, 2010

(2)

SACR

451,

[2010]

4 All SA 197 (WCC)

(Claassen)

.

4

[1979]

AC 385 (PC). See the discussion in

Okpaluba

"Adjudicator's

immunity

from liability

in

negligence: The case of Advertising

Standards

Authority of

South

Africa"

(2007)

17

(1)

Lesotho

LJ

41at65

.

5 See generally,

Okpaluba

and

Osode, supra,

para

3.2.

6 Various ramifications

and

the developments of the

Maharaj

jurisprud

ence

have

recently been

undertaken

by this author. See e.g. "Constitutional damages,

procedural

due

process

and

the Maharaj legacy: A comparative review of recent

Commonwealth

decisions (Parts 1

and

2)" forthcoming,

(2011)

SAPL;

"The

use

LLJ

Vol.

19

No.

2 3

constitutional interpretative

approach

embedded

in

that

judgment

is

presented

in

this

paper

as

an

alternative cause of action to the

delictual liability cause inherent in which is the principle of

judicial immunity. In doing so,

it

is

not

intended

to reopen the

discussion of the whole

breadth

of the principle of judicial

immunity

from civil actions in damages, its rationale,7 or its

origins

and

development

in EnglishB

and

South

African law. All

these issues were discussed

in

an

earlier article

in

this journal.9

It

is

to be expected

however

that

in the elucidation of the principles

represented

by

these

two

classes of cases,

some

overlap is

unavoidable.

Meanwhile,

it

is

appropriate

to advance a

number

of reasons

why

Maharaj

is particularly relevant to this discussion. To begin with,

and

misuse of the constitutional motion in

Commonwealth

Caribbean

constitutional redress adjudication" forthcoming, (2011) Speculum

Juris;

"Constitutional damages, proof of

damag

e

and

the Privy Council" forthcoming,

(2011) THRHR.

7 Suffice it here to state as Gleeson

CJ

did

in

Fin

gleto

n v

The

Queen

[2005]

HCA

34,

(2005)

227 CLR 166,

(2005)

216

ALR

474,

(2005)

79

ALJR

1250 (HCA)

para

...

that: "This

immunity

from civil liability is conferred by the

common

law,

not

as

a perquisite of judicial office for the private

advantage

of judges,

but

for the

protection of judicial independence

in

the public interest.

It

is the right of

citizens that there be available for the resolution of civil

disputes

betwe

en

citizen

and

citizen, or betwee n citizen

and

government,

and

for the

administration

of

criminal justice,

an

indep

e

nd

e

nt

judiciary

whose

members

can be

assumed

with

confidence to exercise authority

without

fear

or

favour.'

As

O'Connor

J,

speaking for the

Supreme

Court

of the United States, said in

Forrester

v White

484

US

219

at

226-227, that

Court

on a

number

of occasions

has

'e

mphasi

zed that the

natur

e of the adjudicative function requires a

judge

frequently to

disappoint

some of the most intense

and

ungovernable desires

that people can have.' She said that '[i]f judges

were

personally liable for

erroneous decisions, the resulting avalanche of suits

...

would

provide

pow

erful

incentives for judges to avoid rendering decisions likely to

provoke

such

suits."' See also

per

Hope

AJA,

Yeldham

v

Rajski

(1989)

18 NSWLR

48

at

69.

B See e.g.

per

Lord Esher MR, Anderson v

Corrie

[1895]

1

QB

668 (CA)

at

670; per

Lord De

nning

MR,

Sirros

v

Moore

[1975]

QB

118 (CA)

at

132;

per

Lord Bridge,

Re

McC

[1985]

AC 528 (HL)

at

540.

9 See

Okpaluba

"Adjudicator's

immunity

from liability in negligence: The case of

Advertising

Standards

Authority of South Africa"

(2007)

17

(1)

Lesotho

LJ

41

at

49-56. See also

Okpaluba

and Osod

e,

supra,

para

11.1

.