Minister of Police v Mboweni and Another

• Jurisdiction: South Africa
• Judge: Mpati P, Bosielo JA, Wallis JA, Mbha JA and Schoeman AJA
• Judgment Date: 05 September 2014
• Citation: 2014 (6) SA 256 (SCA)
• Docket Number: 657/2013 [2014] ZASCA 107
• Hearing Date: 25 August 2014
• Counsel: PJJ de Jager SC (with A Granova) for the appellant. GJ Diamond for the respondents.
• Court: Supreme Court of Appeal

Wallis JA (Mpati P, Bosielo JA, Mbha JA and Schoeman AJA concurring): C

[1] On 15 March 2009 the police arrested Mr Wisani Mahlati and detained him at the Ritavi Police Station. During his detention two other D prisoners in his cell assaulted him. The noise of the assault was apparently disguised by other inmates of the cell singing loudly. The police did not detect the assault or do anything to prevent it or protect Mr Mahlati. The following morning, satisfied that they had no grounds for Mr Mahlati's arrest and detention, the police released him. He was at that time visibly in pain, sweating excessively and had vomited. He was E taken to a doctor and, later that day, hospitalised. His condition deteriorated and he died five days later.

[2] The first respondent was married to Mr Mahlati and is the mother of his daughter born on 13 January 2009, two months prior to his death. F The second respondent is the mother of another daughter born some years earlier, on 27 November 2000. On behalf of their daughters the respondents pursued claims against the Minister of Police (the minister) for substantial damages based on an allegation that their daughters' 'right to parental care as provided for in Section 28(1)(b) [of the G Constitution] was impaired' when their father died as a result of 'the unconstitutional conduct' of the members of the force for whom the minister was in law liable. It was specifically pleaded that the damages were 'general in nature' and that it was 'neither possible nor practical to particularise the amount in any further detail'. Notwithstanding that allegation it appears that the parties were able to agree the amounts H payable in respect of loss of support by Mr Mahlati's two daughters, and on 16 April 2013, at the trial before Mothle J, sitting in the North Gauteng High Court on circuit in Polokwane, judgment was given for the agreed amounts, now described as delictual damages.

[3] The order granted by Mothle J provided that 'the claim for constitutional I damages' be separated from that in respect of delictual damages, in disregard of the fact that they had never been separate claims. The parties then prepared a document headed 'Statement of Facts in terms of Rule 33(1) and (2)' and according to the judgment proceeded to argue 'whether a child whose parent/s have died as a result of the unlawful conduct of a third party has a right to sue for constitutional damages J arising from an infringement of the constitutional right to parental care

Wallis JA (Mpati P, Bosielo JA, Mbha JA and Schoeman AJA concurring)

as provided in section 28(1)(b) of the Constitution'. Mothle J answered A this question in the affirmative and granted an order in the following terms:

'[58.1]

The plaintiffs' right to claim for constitutional damages lodged on behalf of the minor children of the deceased, succeeds;

[58.2]

The defendant is liable to compensate the minor children of the B deceased for proven constitutional damages arising out of the unlawful deprivation of their father's parental care. . . .'

He then referred the quantum of those damages to trial. [1] The present appeal is with his leave.

[4] The issues raised in this case are of considerable difficulty and C importance with far-reaching ramifications if the judgment of the court below is sustained. Although the Constitutional Court in Fose [2] accepted that there may be circumstances in which in terms of s 172(1)(b) of the Constitution damages are a just and equitable remedy for the breach of a constitutional right, the only subsequent cases in which damages have D been awarded as a remedy for the breach of a constitutional right are the Modderfontein Squatters case [3] and Kate, [4] both of which differed entirely from the present matter. To uphold the judgment of the court below would accordingly break new ground. That requires careful consideration of the legal basis for the claim and the reasons for holding that E constitutional damages are the appropriate remedy to be afforded to the claimants. But first it is necessary to examine the procedural circumstances in which the court below was asked to address these important issues.

[5] The parties and the court below approached the matter as if there F were a clear-cut issue of law capable of resolution with the barest minimum of factual matter being placed before the court. That was an error. In Modderfontein Squatters and Kate the court was concerned with whether damages were on the facts of those cases an appropriate remedy for breaches of the claimants' constitutional rights. The facts and those G rights had been determined and all that remained was for the court to determine an appropriate remedy. While Fose was decided on exception, the background to the claim was a series of assaults allegedly perpetrated on the claimant, details of which were fully pleaded. It was accordingly possible for the court, against the pleaded factual backdrop, to determine H

Wallis JA (Mpati P, Bosielo JA, Mbha JA and Schoeman AJA concurring)

A whether the consequence of the breaches of his constitutional rights warranted an award of constitutional damages that included a punitive element, in addition to the damages to which he was in any event entitled in consequence of the assaults. It held that they did not. In all three cases the court was apprised of the facts on which the claim was based. Here B there were no facts dealing with the question of the loss of parental care.

[6] Those three cases demonstrate that the question of remedy can only arise after the relevant right has been properly identified and the pleaded or admitted facts show that the right has been infringed. To start with the C appropriateness of the remedy is to invert the enquiry. But that is what occurred in the present case. This came about because of a flawed understanding of the provisions of rules 33(1) and (2) dealing with special cases. To understand why this is so it is necessary to look at the rules themselves, which read as follows:

D '(1) The parties to any dispute may, after institution of proceedings, agree upon a written statement of facts in the form of a special case for the adjudication of the court.

(2)(a) Such statement shall set forth the facts agreed upon, the questions of law in dispute between the parties and their contentions thereon. Such statement shall be divided into consecutively numbered E paragraphs and there shall be annexed thereto copies of documents necessary to enable the court to decide upon such questions. . . .'

The statement of facts prepared by the parties did not comply with the requirements of rule 33(2)(a) in that it did not set out the facts upon which the proposed legal argument was to rest, nor did it define the F question of law that the court was being asked to determine or set out the parties' contentions in relation to that question. Had that been done the litigation would probably have taken a different course. As it is, it is apparent that the exercise upon which the litigants embarked was fatally flawed.

G [7] This court, whilst still the Appellate Division, dealt with the requirements of a special case. [5] That occurred in a matter where what purported to be a special case was stated for the consideration of this court in terms of the Labour Relations Act 28 of 1956. The aim was to secure the ruling of this court on a number of questions arising from the H unfair labour practice jurisdiction of the then industrial court. Giving the judgment of the court, which held that the document presented to it did not constitute a special case, Nicholas AJA said:

'Provision is made in Rules of Court and in a number of statutes for the submission to a Court of questions of law in the form of a special I case. . . . In none of them is special case defined, presumably because the expression has an accepted meaning. Mozley & Whiteley's Law Dictionary 7th ed says sv special case that it is:

Wallis JA (Mpati P, Bosielo JA, Mbha JA and Schoeman AJA concurring)

"1.

A statement of facts agreed to on behalf of two or more A litigant parties, and submitted for the opinion of a court of justice as to the law bearing upon the facts so stated."

'Stroud's Judicial Dictionary 4th ed states that:

"A special case is a written statement of the facts in a litigation, B agreed to by the parties, so that the court may decide these questions according to law. . . . It is also known as a case stated."

This meaning is reflected in Rule 33 of the Uniform Rules of Court. It provides in subrule (1) that the parties to any dispute may, after institution of proceedings, agree upon a written statement of facts in the form of a special case for the adjudication of the Court, and in subrule C (2)(a) that —

"such statement shall set forth the facts agreed upon, the question of law in dispute between the parties and their contentions thereon".

'It is, therefore, implicit in the expression in the form of a special case" D that there should be a statement of the facts agreed by the parties. . . . The industrial court has power to reserve for the decision of the Appellate Division a question of law which arises in proceedings before it. It is only such a question which can properly be reserved — this Court does not answer whatever questions the industrial court may choose to put to...