Fose v Minister of Safety and Security

• Jurisdiction: South Africa
• Citation: 1997 (3) SA 786 (CC)

Fose v Minister of Safety and Security
1997 (3) SA 786 (CC)

1997 (3) SA p786

Citation	1997 (3) SA 786 (CC)
Case No	CCT 14/96
Court	Constitutional Court
Judge	Ackermann J, Chaskalson P, Mahomed DP, Didcott J, Kriegler J, Langa J, Madala J, Mokgoro J, O'Regan J and Sachs J
Heard	September 10, 1996
Judgment	June 5, 1997
Counsel	D I Berger, B E Leech and D B Spitz for the applicant; J R Gautschi (with him P F Rossouw and J Kentridge) for the respondent; J H A Munnik as amicus curiae (the Witwatersrand Police Reporting Officer).; D C Mpofu for the amicus curiae (the Human Rights Commission).

Flynote : Sleutelwoorde B

Constitutional law — Human Rights — Fundamental rights in terms of chap 3 of Constitution of the Republic of South Africa Act 200 of 1993 — Infringement of — 'Appropriate relief' in terms of s 7(4)(a) of Constitution — What constitutes — C Appropriate relief is relief required to protect and enforce Constitution — May be declaration of rights, interdict, mandamus or such other relief as may be required to ensure that rights enshrined in Constitution protected and enforced — Courts may have to fashion new remedies — No reason in principle why 'appropriate relief' should not include award of damages. D

Constitutional law — Human Rights — Fundamental rights in terms of chap 3 of Constitution of the Republic of South Africa Act 200 of 1993 — Infringement of — 'Appropriate relief' in terms of s 7(4)(a) — Plaintiff alleging torture and assault by police — Claiming 'constitutional damages' in addition to delictual damages — Court finding no cause on facts of case to award additional sum of damages beyond ordinary delictual damages. E

Constitutional practice — Courts — Constitutional Court — Application for leave to appeal to Constitutional Court in terms of Rule 18 of Rules of Constitutional Court — Purpose of certification procedure in Rule 18 to assist in ensuring that appeals not heard by Constitutional Court which are not of F substance, or which cannot be dealt with and disposed of by Constitutional Court because of insufficiency of evidence, or which have no reasonable prospect of success — Proper argument before Court a quo important to ensure that objects of certification achieved — Though Rules not requiring reasons for certification, where matter comes directly to Constitutional Court from G Supreme Court, it would greatly assist Constitutional Court if it had benefit of views of Supreme Court issuing certificate.

Constitutional practice — Courts — Constitutional Court — Application for admission as an amicus curiae in terms of Rule 9 of Rules of the Constitutional Court — Submissions to be advanced by prospective amicus must H be relevant to proceedings and raise new contentions which may be useful to the Court — Fact that prospective amicus obtained written consent of all parties not diminishing Court's control over participation of amicus in proceedings.

Headnote : Kopnota

The applicant (plaintiff in the Court a quo) sued the respondent (defendant) for I damages arising out of a series of assaults alleged to have been perpetrated by members of the South African Police Services at the premises of the Vanderbijlpark Riot and Related Crimes Investigation Unit. In his particulars of claim the plaintiff alleged that the conduct of the police was an infringement of certain of his fundamental rights in chap 3 of the Constitution of the Republic of South Africa Act 200 of 1993 (the interim Constitution), namely his rights to human dignity (s 10), freedom and J

1997 (3) SA p787

security of the person (s 11), privacy (s 13) and criminal process rights (s 25). It was A further alleged that the infringement of the plaintiff's rights formed part of a widespread and persistent series of similar infringements by the police, in particular at Vanderbijlpark. The plaintiff claimed damages arising out of the alleged assault for pain and suffering, loss of amenities of life, insult and for past and future medical expenses. In addition, a sum of R200 000 was claimed under the head of 'constitutional damages B . . . which amount includes an element of punitive damages'. The defendant excepted to the particulars of claim on the grounds that an action for 'constitutional damages' did not exist in law and that an order for the payment of such damages did not qualify as 'appropriate relief' in terms of s 7(4)(a) of the interim Constitution. The Court a quo upheld the exception. The plaintiff thereupon made application for leave to appeal to C the Constitutional Court in terms of Rule 18 of the Rules of the Constitutional Court. The Court a quo granted an unqualified positive certificate in terms of Rule 18(e) without the application having been formally set down and without hearing the parties.

The Constitutional Court directed that argument on the application for leave to appeal and on the merits of the appeal itself be heard together. The Human Rights D Commission applied for admission as an amicus curiae in the matter on the basis that all the parties in the matter had consented to its admission in terms of Rule 9(1). This application was made out of time.

The Court first considered the procedural issues raised by the matter.

Held (per Ackermann J, Chaskalson P, Mahomed DP, Langa J, Madala J, Mokgoro J, O'Regan J and Sachs J concurring), as to the application for leave to appeal, that the E purpose of Rule 18(e) certification was to assist in ensuring that appeals were not heard by the Constitutional Court which were not of substance, or which could not be dealt with and disposed of by the Constitutional Court because of the insufficiency of the evidence, or which had no reasonable prospect of success. Proper argument was important to ensure that the objects of certification were achieved. Rule 18 did not in F terms require that reasons be furnished for the grant of a Rule 18(e) certificate. Where, however, a matter came directly to the Constitutional Court from a Provincial or Local Division of the Supreme Court, it would greatly assist the Constitutional 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 G previously given in the case. (Paragraph [3] at 793B–E.)

Held, further, as to the application for admission as an amicus curiae, that the principles underlying the admission of an amicus in any given case, apart from the fact that it should have an interest in the proceedings, were whether the submissions to be advanced by the amicus were relevant to the proceedings and raised new contentions H which might be useful to the Court. The fact that a person or body had obtained the written consent of all parties to its admission pursuant to Rule 9(1) did not detract from these principles; nor did it diminish the Court's control over the participation of the amicus in the proceedings. The Human Rights Commission's purported admission by consent as an amicus curiae was well out of time, no proper application for I condonation had been brought and its written argument did not raise any substantially new contentions which might have been useful to the Court. Under these circumstances the Court declined to permit the Human Rights Commission to address argument to it. (Paragraphs [9] and [10] at 795B–C/D and D/E–F.)

The Court then considered the substance of the application for leave to appeal. The argument of the applicant was that s 7(4)(a) of the interim Constitution J

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(allowing any person to apply to court for 'appropriate relief' for an infringement of A chap 3 rights) establishes a cause of action based on the infringement of a fundamental right entrenched in chap 3. The remedy sought was a constitutional and not a delictual remedy, which had 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 B 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 had infringed fundamental rights in a particularly egregious fashion; and (d) compensation for harm caused to the plaintiff in consequence of the infringement of the plaintiff's fundamental rights. C

Held (per Ackermann J, Chaskalson P, Mahomed DP, Langa J, Madala J, Mokgoro J, O'Regan J and Sachs J concurring) that 'appropriate relief' in terms of s 7(4)(a) of the Constitution was relief that was required to protect and enforce the Constitution. Depending on the circumstances of each particular case the relief might be a declaration of rights, an interdict, a mandamus or such other relief as might be D required to ensure that the rights enshrined in the Constitution were protected and enforced. If it was necessary to do so, the courts might even have to fashion new remedies to secure the protection and enforcement of these all-important rights. (Paragraph [19] at 799F–G/H.)

Held, further, (O'Regan J silente) that a comparative assessment of the remedies granted in other jurisdictions for the breach of a constitutional right indicated that in E most cases they were 'public law' remedies independent of those available under private tort law. By contrast, the South African private law of delict was flexible and, under s 35(3) of the interim Constitution, should be developed by the courts with 'due regard to the spirit, purport and objects' of chap 3. In many cases the common law would be broad enough to provide all the relief that would be 'appropriate' for a breach of constitutional rights. (Paragraph [58] at 819D–821A, paraphrased.) F

Held, further...