The Role of Resource Constraints in State Liability for Omissions
| DOI | 10.25159/2522-6800/9081 |
| Pages | 1-22 |
| Author | Mila Harding |
| Date | 01 December 2021 |
| Published date | 01 December 2021 |
Article
Southern African Public Law
https://doi.org/10.25159/2522-6800/9081
https://unisapressjournals.co.za/index.php/SAPL
ISSN 2522-6800 (Online), 2219-6412 (Print)
#9081 | 22 pages
© Unisa Press 2022
The Role of Resource Constraints in State Liability
for Omissions
Mila Harding
https://orcid.org/0000-0002-0749-1274
University of the Witwatersrand
harding.mila.d@gmail.com
Abstract
The ambit of delictual liability against the State for negligent omissions
resulting in physical harm has extended dramatically since the Constitutional
Court case of Minister of Safety and Security v Carmichele. In such expansion,
the courts have often mentioned that considerations regarding resource
constraints play a role in the imputation of liability on the State, as well as in
determining whether the State has been negligent. In examining four
Constitutional Court cases from the period of 2013–2017, this article argues that
the Constitutional Court’s approach to the State alleging resource constraints
has largely been correct. Although many have seen the rapid expansion of
liability as cause for concern (as public funds are increasingly being spent
paying damages instead of improving public services) the Constitutional Court
is correct in refusing to allow bald statements of resource constraints to defeat
delictual claims or reduce damages in cases where the negligent omissions of
the State have resulted in physical harm. In accordance with the value of
accountability, where the State alleges it does not have the resources to fulfil its
duties and prevent harm, the State must prove it.
Keywords: Constitutional law; State liability; resource constraints; feasibility
constraints; delict; common law; negligent omissions
Harding
2
Introduction*
It is clear that the number of delictual claims against the State have increased over the
past several years.
1
There are many possible reasons for this,
2
which include the
inadequate standard of health services, particularly in the public sector.
3
Another
possible reason is the trend of the courts to find liability on the part of the State, where
it may not have been found before the infusion of the Constitution of the Republic of
South Africa, 1996 (the Constitution) into the common law of delict.
4
This trend has
raised concerns because when damages are awarded against the State, resources may be
redirected from potentially fixing the problems at the root of the claims, thus making
future claims more likely.
5
The purpose of this article is to provide a broad evaluation
of the Constitutional Court’s (CC) engagement with resource constraints in several
high-profile cases regarding State omissions resulting in physical harm.
Davis and Klare described the extension of delictual liability to the State from 1996 to
2010 as generally ‘resource-lite’,
6
meaning that the solutions to the root causes of the
delictual claims would not require a large amount of resources to address. However, the
courts were not unaware of the potential hazard in terms of resources in extending
delictual liability for State failures. In Rail Commuters Action Group v Transnet Ltd t/a
Metrorail,
7
O’Regan J recognised that the translation of public -law rights into private-
law damages may place ‘… heavy financial burdens on the [S]tate’.
8
In a time of increasing austerity,
9
and increasing delictual claims against the State, the
State may find itself caught in a destructive cycle.
10
State intervention may be in the
best interest of the public.
11
In this regard, the most immediate change could be the
enactment of legislation regulating claims against the State—such as the State Liability
* I would like to thank my supervisor, Dr Emile Zitzke, whose guidance and support has b een
invaluable to me in writing this article.
1
AB Wessels, ‘The Expansion of the State's Liability for Harm Arising from Medical Malpractice:
Underlying Reasons, Deleterious Consequences and Potential Reform’ (2019) TSAR 1.
2
ibid.
3
Centre for Economic and Social Rights, Institute for Economic Justice, SECTION27 & SPII,
‘Austerity in the Midst of Inequality Threatens Human Rights’ (CESR, November 2018)
Nov%206%20FINAL.pdf> accessed 29 July 2020.
4
Christopher Roederer, ‘The Transformation of South African Private Law after Ten Years of
Democracy: The Role of Torts (Delict) in the Consolidation of Democracy’ (20 06) 37 Columbia
Human Rights Law Review 520–521.
5
Wessels (n 1) 8.
6
Dennis Davis and Karl Klare, ‘Transformative Constitutionalism and the Common and Customary
Law’ (2010) 26 SAJHR 484.
7
8
ibid para 30.
9
CESR (n 3).
10
Wessels (n 1) 9.
11
ibid 9–10.
Harding
3
Amendment Bill.
12
Claims could also be reduced through interventions aimed at
improving public services—taking meaningful steps against foreseeable harm against
the public.
13
There are numerous routes that the State could follow in this regard, but a
full analysis of all options at the State’s disposal is beyond the scope of this article. One
strategy that the State appears to have been following to escape liability for damages in
delictual suits over the past few years is to present the courts with bald statements of
resource constraints.
This strategy, and the courts’ responses to this strategy, will be evaluated in this article.
More specifically, this article will examine cases where negligent omissions have
resulted in physical harm and the infringement of constitutional rights, as the courts tend
to reject the extension of State liability where the loss suffered by plaintiffs is purely
economic.
14
Davis and Klare rightly noted that State liability in ‘cases concerning state
protective duties’ became a ‘burgeoning field of law’ between the period of 1996 to
2010.
15
This article will examine the general response of the Constitutional Court after
that period. Through an examination of a series of cases from the period of 2013 to
2017, namely Lee,
16
Oppelt,
17
Mashongwa,
18
and DZ,
19
I will argue that the CC has been
correct to disallow the State to escape delictual liability based on bald statements of
resource constraints. This is because disallowing such bald statements, without further
evidence, is consistent with the value of State accountability as infused into delict since
the case of Van Duivenboden.
20
Before embarking on such analysis, I will first explain
what is meant by ‘state liability’ in the next part.
Direct and Vicarious State Liability
According to section 1 of the State Liability Act,
21
the State will be held liable for the
actions of an employee if that employee is acting in their capacity as an employee of the
State and within the scope of their employment when the harm occurs. It was believed
in the past that the State could not be held directly liable for its actions or omissions,
except in the case of municipalities.
22
Therefore, where harm had resulted from a
12
GG 41658 (25 May 2018).
13
WT Oosthuizen and PA Carstens, ‘Medical Malpractice: The Ex tent, Consequences and Causes of
the Problem’ (2015) 78 THRHR 12. The authors state that the most ideal way to reduce medical
negligence claims would be to decrease malpractice.
14
Chuks Okpaluba, ‘The Law of Bureaucratic Negligence in South Africa: A Comparative
Commonwealth Perspective’ (2006) Acta Juridica 156–157.
15
Davis and Klare (n 6) 467.
16
17
Oppelt v Head: Health, Department of Health Provincial Administration: Western Cape 2015 (12)
BCLR 1471 (CC) (Oppelt).
18
19
MEC, Health and Social Development, Gauteng v DZ obo WZ 2018 (1) SA 335 (CC) (DZ).
20
Minister of Safety and Security v Van Duivenboden 2002 (3) All SA 741 (SCA) para 21.
21
Act 20 of 1957.
22
Leo Boonzaier, ‘State Liability in South Africa: a More Direct Approach’ (2013) 130 SALJ 334.
Harding
4
systemic failure that could not be attributed directly to any one employee of the State,
it would be difficult to recover damages.
23
However, the jurisprudence emanating from
the Supreme Court of Appeal (SCA) and CC over the past two decades has indicated
that the conceptual differentiation between vicarious and direct liability for the State has
arguably been blurred.
24
Zitzke states that in cases where the State is the wrongdoer, there is an unavoidable
overlap between vicarious and direct liability.
25
This is because the State can only act
through its employees, thus such employees will inescapably assume some of the duties
prescribed to the State.
26
Despite the conceptual issues that arise in terms of whether the
courts have been holding the State vicariously or directly liable for wrongful omissions,
the pertinent issues in the cases engaged with in this article do not deal with principles
of vicarious liability per se. Therefore, when referring to ‘State liability’, in line with
the overlap between direct and vicarious liability in cases involving the State, this article
denotes both vicarious and/or direct liability. With the terminological concerns
regarding the meaning of ‘State liability’ having been addressed, in the next part of this
article I will discuss the extension of State liability.
Notable Developments Regarding the Extension of State Liability for
Omissions from 1996 to 2010
Common Law Development
There are five elements in delict that must be satisfied for an alleged wrongdoer to be
found liable and be made to pay damages for harm suffered by another.
27
The alleged
wrongdoer must have caused harm to the claimant through their actions (or inaction),
which must be wrongful and culpable.
28
The five elements to be proven are thus
conduct, wrongfulness, fault, causation, and harm.
29
Wrongfulness occurs when a
‘legally protected interest’ has been harmed by an act that is deemed ‘legally
reprehensible’.
30
An omission, however, can only be considered wrongful where a
defendant had a legal duty to prevent the harm arising from that omission.
31
In the early
twentieth century the courts would only find an omission actionable if there had been
prior-conduct on the part of the wrongdoer relating to the subsequent omission.
32
23
ibid 341–343.
24
ibid 342.
25
Emile Zitzke, ‘A New Proposed M ethodology for Effecting Transformation in the Law of Delict’
(LLD thesis, University of Pretoria 2016) 205.
26
ibid 204.
27
Johann Neethling, JM Potgieter, and PJ Visser, Neethling-Potgieter-Visser Law of Delict (7th edn
Lexis Nexus South Africa 2015) 4.
28
ibid.
29
ibid.
30
ibid 33–34.
31
ibid 58.
32
Duard Kleyn and Emile Zitzke, ‘The Omissions in Oppelt’ (2018) 24 Fundamina 67.
Harding
5
However, the test for determining wrongfulness broadened over the years and the
‘orthodox approach’ for determining wrongfulness, according to Minister van Polisie v
Ewels,
33
became to determine whether the legal convictions of the community viewed
the failure to act as wrongful, and that the result of such failure should be compensation
by the wrongdoer.
34
Rules such as the prior-conduct rule were factors to consider in
determining wrongfulness but were not necessarily decisive.
35
Before the CC developed
the common law regarding wrongfulness in Carmichele,
36
the court would engage in a
proportionality exercise, evaluating the interests of both parties and the norms and
values constituting the legal convictions of the community without considering the
Constitution.
37
Before Carmichele, wrongfulness had often been used to exclude State liability for
negligent omissions.
38
This tendency was first eroded by Ewels,
39
when policy
considerations were introduced,
40
and substantially altered by Carmichele, a case
concerning the negligent failure of a prosecutor and the police to protect a woman from
harm caused by a third party.
41
Carmichele developed the formulation for determining
wrongfulness in delict by determining that the ‘legal convictions of the community’
cannot be determined outside the context of the Constitution.
42
The CC stated that relevant factors in terms of wrongfulness in a case must be analysed
in the context of a State founded on dignity, equality and freedom, and in which the
State has positive duties to protect and promote these values in terms of the
Constitution.
43
The CC held that a general ‘public interest immunity’ would be contrary
to the Constitution, and that the fears of the harm delictual liability may bring on the
State are tempered by the safeguards provided against limitless liability by other
requirements for damages.
44
Carmichele thus developed delict in terms of the willingness of courts to recognise
claims that are based partially on constitutional rights and values, and concomitant State
33
34
Zitzke (n 25) 216.
35
Kleyn and Zitzke (n 32) 68.
36
37
ibid para 43.
38
Francois du Bois, ‘State Liability in South Africa: a Constitutional Remix’ (2010) 25 Tulane
European and Civil Law Forum 162. See also Moulang v Po rt Elizabeth Municipality [1958] 3 All
SA 8 (A) 10 regarding the ‘… establishment of the general immunity of municipalities in relation to
accidents caused by potholes and the like in the surface of streets.’ The Appellate Division stated the
predominant factor for the refusal to recognise liability on the part of the municipality was ‘…
expense to municipalities.’
39
Ewels (n 33).
40
Kleyn and Zitzke (n 32) 69.
41
Carmichele (n 36) para 25.
42
43
Carmichele (n 36) para 43.
44
ibid para 49.
Harding
6
duties.
45
Courts are now not as willing to permit, as in the past, the requirement of
wrongfulness to result in the State escaping liability omissions resulting in physical
harm.
46
Since Carmichele, the test for wrongfulness has somewhat evolved.
47
In Le Roux v
Dey,
48
Brand AJ stated that the test for wrongfulness has come to depend on a court’s
determination of whether it is ‘reasonable’ to impose liability, which would result in
damages, for the relevant conduct in a case.
49
What is considered ‘reasonable’ is
determined through ‘ ... considerations of public and legal policy in accordance with
constitutional norms.’
50
Wessels argues that both the traditional approach (which
focuses on what the legal convictions of the community regard of the conduct) and the
‘so-called new approach’ (which focuses on the reasonableness of imposing liability)
are both reflected in our case law, and are sometimes used together.
51
Resources and the ‘Norm of Accountability’ in Van Duivenboden
Following the ruling in Carmichele, several SCA judgments extended the ambit of State
liability specifically regarding omissions by the police that caused the infringement of
constitutional rights through violence committed by third parties.
52
In the seminal case of Van Duivenboden, another case regarding a negligent omission
committed by the police resulting in harm from a third party,
53
the SCA highlighted the
‘norm of accountability’ as a factor in determining whether a legal duty exists for the
State to act.
54
The SCA stated that although this norm will not always translate into
private-law damages, where there is no other effective remedy to hold the State
accountable and vindicate the victim’s rights, then the norm of accountability will
ordinarily mandate that a legal duty in delict is recognised.
55
However, the SCA stated that there may be exceptions to this rule, where it is shown
that ‘ … there are other considerations affecting the public interest that outweigh that
45
Sandra Liebenberg, Socio-economic rights: Adjudication under a Transformative Constitution (Juta
2010) 439.
46
Okpaluba (n 14) 117–118.
47
AB Wessels, ‘Wrongfulness in Pure Economic Loss Cases: the “Traditional Approach” and the “New
Approach”’ (2020) 83(2) THRHR 158.
48
49
ibid para 122.
50
ibid para 122.
51
Wessels (n 47) 162.
52
Bernard Wessels, ‘Reconsidering the State's Liability for Harm Arising from Crime: The Potential
Development of the Law of Delict’ (2019) 30 Stell LR 365.
53
Van Duivenboden (n 20) para 2.
54
ibid para 21.
55
ibid.
Harding
7
norm.’
56
The SCA commented that in cases where the negligent conduct relates to
policy, or where it affects a ‘broad and indeterminate segment of society,’ the norm of
accountability may point towards resolving the issue through a public-law remedy or
through political, rather than judicial, process.
57
The SCA pointed to two more factors that may be relevant considerations against
imposing liability in terms of the norm of accountability.
58
These were whether the
imposition of a duty would hamper the effective functioning of the police, and whether
additional resources were required.
59
The role of resources was not discussed beyond
this, because the SCA stated that in the case the government had not actually suggested
that imposing a legal duty would require additional resources.
60
Negligence in Van Duivenboden
After considering wrongfulness, the SCA then stated that resource considerations are
also relevant in considering whether the State was negligent in its omission.
61
A
defendant is negligent when a reasonable person in the position of the defendant would
have foreseen the reasonable possibility that the harm would occur, and would have
taken reasonable steps to guard against it, and the defendant fails in both respects.
62
In
Van Duivenboden the SCA postulated that the enquiry into negligence could ensure
undue demands are not placed upon the State.
63
This is because the available resources
of the State and ‘ … the manner in which they have ordered their priorities will
necessarily be taken into account in determining whether they acted reasonably.’
64
Therefore, resource constraints also feature as a consideration in the negligence enquiry.
However, it is important to maintain the conceptual differentiation between
wrongfulness and negligence, which the courts have often failed to do.
65
After Van Duivenboden
Following Van Duivenboden, the SCA generally continued extending State liability for
police negligence resulting in harm from third parties.
66
Generally, the solutions for the
problems at the root of the delict were, on the whole, ‘resource-lite’,
67
meaning that the
solutions to the problems the claims were based on were mostly inexpensive to fix.
56
ibid.
57
ibid.
58
ibid para 22.
59
ibid.
60
ibid.
61
ibid para 23.
62
63
Van Duivenboden (n 20) para 23.
64
ibid.
65
Neethling and others (n 27) 57.
66
See Minister of Safety and Security and Another v Carmichele [2003] 4 All SA 565 (SCA) and Van
Eeden v Minister of Safety and Security [2002] 4 All SA 346 (SCA).
67
Davis and Klare (n 6).
Harding
8
However, a case where resource constraints managed to defeat the extension of liability
on the State is Minister of Safety and Security v Rudman.
68
In this case, the SCA
examined whether the failure of a police officer to continue with CPR on a child was
wrongful.
69
The SCA found it was not, as there were public policy reasons militating
against imposing such a duty on officers.
70
Such a duty, according to the SCA, does not
fall within the purview of the primary functions of the police service, and to hold that
such a duty existed would require the training of all police officers, resulting in
significant additional State expenditure.
71
However, despite Rudman, the general trend
of extending State liability for negligent omissions continued in the CC, as is shown in
the next part.
Constitutional Court Cases on State Liability for Omissions Post-2010
Lee v Minister of Correctional Services
The state of prisons in South Africa constitute blatant violations of the rights of persons
detained in them.
72
Prisons in South Africa are overcrowded and unhygienic and there
is a general lack of oversight.
73
Communicable diseases are rife and access to healthcare
is often tenuous.
74
These were the conditions that Dudley Lee faced when he was
detained in the remand section at Pollsmoor Maximum Security Prison from 1999 to
2004, while awaiting trial.
75
It was uncontested that Lee entered prison generally healthy
and that he had not previously been ill with pulmonary tuberculosis (TB).
76
However,
after three years of incarceration in the prison, Lee became ill with TB.
77
The Minister had statutory and constitutional duties to take steps to ensure the health
and dignity of prisoners.
78
The High Court and SCA found the Minister was in breach
of those duties.
79
This was because the cells in which inmates were kept were badly
ventilated and overcrowded, there were not enough nurses, and prisoners with TB were
not regularly being isolated from the rest of the prison population.
80
68
69
ibid para 56.
70
ibid para 63.
71
ibid.
72
Edwin Cameron, ‘Our Prisons are Failing. They Need to Become Correctional Facilities’ (GroundUp
3 March 2020)
correctional-facilities/ > accessed 27 July 2020.
73
ibid.
74
ibid.
75
76
77
ibid para 232.
78
ibid para 263.
79
ibid para 268 and SCA para 44.
80
Lee 2011 (n 76) para 264.
Harding
9
The High Court and SCA found that the prison authorities had a legal duty to adopt
reasonable steps to prevent the spread of the disease,
81
and that the failure to do so was
wrongful in delict.
82
The prison authorities were well aware of the lack of an adequate
health system in the prison and did little to remedy it.
83
The SCA stated that to the extent
that a management system was in place regarding TB in the prison, its implementation
was ‘ … at best sporadic and in at least some respects effectively nonexistent.’
84
In terms of the element of factual causation, Lee needed to show that ‘but for’ the lack
of an adequate system, he would not have contracted TB.
85
The High Court found that
the lack of an adequate system to mitigate the spread of TB was the factual cause of Lee
contracting TB.
86
The SCA, however, disagreed.
87
In applying the ‘but for’ test in the case of an omission, the court engages in a mental
exercise where it substitutes the negligent inaction for reasonable action and determines
whether the harm would still have occurred.
88
While the SCA stated that it was clear
that the prison authorities doing nothing to prevent the spread was negligent, and that
Lee probably contracted TB in prison;
89
Lee needed to prove what a reasonable system
(that would have prevented him from contracting TB) would be in order to prove factual
causation.
90
Factual causation was difficult to prove in Lee on the basis that a reasonable system that
would decrease the spread of TB in prisons was difficult to prove.
91
The claim in Lee
was based on a truly systemic issue.
92
There was no one State functionary responsible
for the breakdown of the healthcare system in the prison, and there was no simple
solution for the spread of TB.
93
The High Court stated, in determining negligence, that
the prevalence of TB could be decreased by hiring more nurses and enforcing measures
that included conducting chest examinations of incoming inmates, isolating those
showing symptoms of TB or who are vulnerable to TB, providing adequate nutrition to
inmates that were malnourished or in another way vulnerable to TB, and ensuring
inmates infected with TB took their antibiotics.
94
81
Lee 2012 (n 75) para 35.
82
ibid para 42.
83
Lee 2011 (n 76) para 264.
84
Lee 2012 (n 75) para 44.
85
Lee 2013 (n 16) para 40.
86
Lee 2011 (n 76) para 234
87
Lee 2012 (n 75) para 64.
88
ibid para 47.
89
ibid para 55.
90
ibid para 57.
91
ibid para 64.
92
Alistair Price, ‘Factual Causation after Lee’ (2014) 131 SALJ 495.
93
Lee 2012 (n 75) para 64.
94
ibid para 58.
Harding
10
However, the SCA stated that the matter was more complex and would require a
balancing of factors including ‘ … the security demands of the prison; the financial
resources that are available to the prison authorities; generally accepted practice
amongst prison authorities; the extent to which trained personnel are available; the space
available for isolation; the incidence of the disease.’
95
Further, the SCA stated that
because diagnosis inescapably precedes treatment, any system mitigating the
transmission of TB would not eliminate the risk altogether.
96
Therefore, Lee had failed
to prove that, but for the negligent system, he would not have contracted the disease.
97
The CC overturned the SCA’s decision and penned a controversial judgment in terms
of factual causation.
98
The CC stated that the ‘but for’ test, in terms of the substitution
of an omission with reasonable action, is not inflexible.
99
The CC stated that the High
Court was not incorrect in determining factual causation solely by asking whether the
prevailing conditions in the prison were more likely than not the cause of Lee
contracting TB.
100
The CC stated that Lee thus did not need to tender evidence to prove
what a non-negligent system for the prevention of TB would be.
101
The CC found that the negligence of the prison authorities was the factual and legal
cause of the harm caused to Lee,
102
and therefore found in favour of Lee.
103
Price argues
Lee may indicate a willingness on the part of the CC to relax the factual causation
requirement in cases of systemic omissions.
104
Fixing systemic issues generally has
large budgetary implications and thus, effectively, Lee obliges the State to allocate
resources to fix the problem lest it may be liable to pay damages to plaintiffs in similar
scenarios in future. However, despite the potential of this being seen as a breach of the
separation of powers, the case may be an example of delict being used as a tool to ensure
State accountability.
105
It would be difficult and expensive for plaintiffs to prove what
a reasonable system would be,
106
and Lee indicates that the burden is on the state to
prove this, even in circumstances of limited resources.
95
ibid para 50.
96
ibid para 61.
97
ibid para 64.
98
See Price (n 92), Anton Fagan, ‘Causation in the Constitutional Court: Lee v Minister of Correctional
Services’ (2014) 5 Constitutional Court Review 104, Malcolm Wallis, ‘Revel without a Cause –
Delictual Liability after Lee?’ (2019) 136 SALJ 165.
99
Lee 2013 (n 16) para 41.
100
ibid para 55.
101
ibid para 57.
102
ibid para 71.
103
ibid para 77.
104
Price (n 92) 497.
105
ibid 491.
106
ibid 496–497.
Harding
11
Oppelt v Head: Health, Department of Health Provincial Administration: Western
Cape
In this case, Oppelt alleged that he had become paralysed due to a four-hour delay in
the provision of emergency medical care in the public healthcare system.
107
Oppelt
contended that the State owed duties to all victims of injuries similar to his to ensure
they were transferred to the appropriate hospital as quickly as possible, that they
received treatment at such a hospital as quickly as possible, and that the hospital staff
were aware of the need to treat patients with the same injury as quickly as possible.
108
The State conceded that it had a duty in delict to provide reasonable medical care.
109
However, the State contended it did not have a duty to do so within the four-hour cut-
off period.
110
The State had contended that it has ‘vast public responsibilities and limited
resources,’
111
and that it could not be expected to mobilise such resources to treat
potential victims of that specific injury during a particular season.
112
After consideration of the elements of delict, the CC found that the State was liable to
pay damages to Oppelt.
113
In the case, the treatment needed was not expensive, the
hospital had the necessary equipment, and medical personnel were available.
114
The CC
accepted that the availability of treatments, even in cases of emergency, is informed by
resources.
115
However, the CC stated that the State had not shown that it had inadequate
resources to provide treatment to Oppelt.
116
Therefore, the State was not able to avoid
liability on the basis of a bald statement of general resource constraints.
Mashongwa v PRASA
Mashongwa,
117
conveys a potentially more problematic message regarding the
willingness of the courts to accept bald statements of resource constraints. Prior to
Mashongwa, in the case of Metrorail, O’Regan J confirmed that Metrorail (PRASA’s
predecessor) had a public-law duty to ensure reasonable measures were in place to
ensure the safety of passengers in terms of the South African Transport Services Act
and the Constitution.
118
O’Regan J stated that what may be considered reasonable would
be case-specific, but factors which would normally be relevant include the nature of the
duty, the circumstances in which the duty arises, how closely related the duty is to the
107
Oppelt (n 17) paras 1–3, 10.
108
ibid para 52.
109
ibid para 53.
110
ibid.
111
ibid para 15.
112
ibid.
113
ibid para 86.
114
ibid.
115
ibid para 63.
116
ibid.
117
Mashongwa (n 18).
118
Metrorail (n 7) para 84.
Harding
12
‘core activities of the duty-bearer,’ factors which are relevant to the performance of the
duty, as well as the degree of the potential threat to fundamental rights and the intensity
of the harm that would result from the failure to perform such a duty.
119
Finally, the
court will need to consider resource constraints and will need evidence regarding such
constraints ‘ … in the context of the overall resourcing of the organ of state.’
120
In 2011, Mashongwa was attacked and thrown off a moving train operated by
PRASA.
121
The CC was thus tasked with a question left open in Metrorail—whether
the failure to provide reasonable measures to protect the safety of passengers, in terms
of PRASA’s public-law duty, could translate into delictual damages where such failure
had resulted in harm.
122
Mashongwa argued that his attack was caused by PRASA on the basis of two
omissions.
123
First, there were no security guards deployed on the train.
124
Second,
PRASA had not ensured that the train doors were closed when the train left the station.
125
In terms of wrongfulness, the CC stated that determining whether an omission is
wrongful is a challenging exercise that necessitates the consideration of many factors,
especially with regards to public-law obligations.
126
These include the purpose of the
legislation from which the duty arises, whether such legislation provides for delictual
claims, whether the powers conferred in the legislation are discretionary, whether the
imposition of damages will have a ‘chilling effect’ on the effectiveness of the State,
whether the harm was foreseeable, and whether alternative remedies are available.
127
The CC confirmed that where a constitutional duty had been breached, the value of
accountability was an important consideration in the imposition of delictual liability.
128
However, this would only be an option if there were no other appropriate remedies ‘ …
to enforce accountability.’
129
The CC noted that there may be cases relating to policy
matters where the effectiveness of the State could be undermined by the imposition of
liability.
130
Further, the CC stated that where more resources would be required by the
State to fix the problem at the root of the delictual claim, it may be inappropriate for the
court to impose liability.
131
119
ibid para 88.
120
ibid.
121
Mashongwa (n 18) paras 5–6.
122
ibid para 1.
123
ibid para 2.
124
ibid para 5.
125
ibid para 9.
126
ibid para 22.
127
ibid.
128
ibid para 24.
129
ibid.
130
ibid para 24.
131
ibid.
Harding
13
Despite not going over most of the factors listed,
132
the CC found that the public-law
duty on the part of PRASA had indeed ‘ … mutated to a private law duty.’
133
This
seemed to be primarily on the basis of the special protective relationship between
PRASA and its passengers, the constitutional duties of PRASA to protect its passengers,
as well as the lack of any other appropriate remedy.
134
Regarding negligence, the CC examined the omissions separately. In terms of the lack
of security guards, the CC implicitly found that the harm faced by Mashongwa was
foreseeable and preventable, and moved directly to determining whether the steps taken
in terms of preventing violent crime on the trains were reasonable.
135
The CC stated that
as the levels of crime differ across the country, what is reasonable in terms of the
resources allocated and the safety measures adopted by PRASA to prevent crime may
differ depending on the area where a train is located.
136
In line with the value of
accountability, the CC held that in order to determine whether the measures taken in the
specific case were reasonable, the court would need to evaluate the justifications for
such measures.
137
After considering the information offered by PRASA regarding the lack of security
guards, which the CC held arguably amounted to bald assertions of resource
constraints,
138
the CC stated that because of the lack of information proffered it could
not decide whether negligence had been established.
139
However, in terms of the failure
of PRASA to ensure the train doors were closed, the CC found that such an omission
was negligent and that there were no additional resources needed for that task.
140
Therefore, despite finding liability on the part of the State regarding the failure to close
the doors of the train, the CC seemed to have inadvertently allowed the State to escape
liability for the lack of security guards on the basis of bald allegations of resource
constraints.
MEC, Health and Social Development, Gauteng v DZ obo WZ
In DZ,
141
after accepting liability for a negligent omission in a medico-legal claim, the
State argued that it should be able to pay damages in a form other than lump sum
monetary compensation.
142
The State argued that it should be able to undertake to pay
the medical expenses of the plaintiff to the service provider, as and when they arrive
132
TJ Scott, ‘Revisiting the Elements of Delict: the Mashongwa Judgments’ (2016) 79 THRHR 568.
133
Mashongwa (n 18) para 29.
134
ibid para 26.
135
Scott (n 132) 573.
136
Mashongwa (n 18) para 35.
137
ibid para 36.
138
ibid para 39.
139
ibid para 43.
140
ibid para 51 and 61.
141
DZ (n 19).
142
ibid para 2.
Harding
14
and on an ongoing basis.
143
Further, the State argued that the amount claimed by the
plaintiff was too high, as it was based on prices in private healthcare rather than public
healthcare, which is cheaper and just as good.
144
There were two principles regarding damages in delict that were relevant to this case.
First, a plaintiff must claim all compensation—past and future—in one action (the ‘once
and for all rule’).
145
Second, compensation is monetary.
146
The State argued that the
common law, as it stood, allowed them to pay damages in a structure that is not a lump
sum monetary payment (arguing that the ‘once and for all rule’ related to determining
liability and not quantification of damages).
147
Alternatively, the State argued that the
common law should be developed.
148
The CC stated that the contention that the common law allows non-monetary
compensation and that the ‘once and for all rule’ related to determining liability and not
quantification was ‘ … not borne out by an analysis of our current law.’
149
However, the
CC stated that arguing for a reduction of monetary damages on the basis that damages
have been calculated at private healthcare costs, when public healthcare is just as good
and cheaper is an argument that ‘ … appears to be on stronger footing.’
150
The CC held
that this did not offend the ‘once and for all rule’ and would be relevant to the
quantification of monetary damages.
151
The State would need to prove, however, that
the medical services provided in a public facility were as good as or better than a private
facility.
152
The CC remarked that it is necessary to look at whether monetary compensation, over
some form of compensation in kind, is the only form of compensation that can properly
redress the harm caused.
153
In this regard, Froneman J commented that it is important to
consider how African conceptions of the values in the Constitution should be utilised to
develop the common law.
154
Providing the victim with medical care rather than money
would provide redress for the harm caused and compensate the victim.
155
The CC stated
that while the principle that damages must sound in money was not per se offensive to
143
ibid.
144
ibid para 12.
145
ibid para 16.
146
ibid para 14.
147
ibid para 17.
148
ibid para 3.
149
ibid para 17.
150
ibid para 18.
151
ibid para 23.
152
ibid paras 21–22.
153
ibid para 42.
154
ibid para 41.
155
ibid para 43.
Harding
15
the Constitution, there were considerations in terms of the State’s duty to provide access
to healthcare that did not exist when this rule was formulated and applied in the past.
156
On the possibility of developing the common law to allow periodic payments, the CC
stated that there is nothing to indicate that it would not be inconsistent with the
Constitution, and in fact may in some cases be appropriate.
157
However, the CC stated
that the State had not provided it with a factual foundation to properly assess whether
the common law should be developed—all that was submitted was that medical
negligence occurred in a public healthcare facility.
158
Therefore, the CC refused to stray
from the usual rules regarding damages on the basis of bald contentions that basing
damages on private healthcare and using the ‘once-and-for-all rule’ were too expensive
for the State, but still left the door open regarding the possible development of the
common law in future if the State were to make out a proper case.
159
A recent judgment from the High Court—MSM obo KBM v Member of the Executive
Council for Health, Gauteng Provincial Government (MSM)
160
—revisited the ‘public
healthcare defence’.
161
The High Court differentiated between what it called the ‘public
healthcare defence’, which would be damages in the form of compensation in kind
(healthcare in a public facility), and the ‘mitigation of healthcare costs defence’, which
would be a lessening of damages based on public healthcare being cheaper or free, and
as good as private healthcare.
162
The court held that while the ‘mitigation of healthcare
costs defence’ was in line with existing principles of delict, the ‘public healthcare
defence’ would require the development of the common law.
163
While in DZ the CC stated that the State had not provided the factual basis for the
development of the common law, the High Court stated that in this case the State had
done so.
164
MSM, like DZ, concerned a child born with cerebral palsy due to negligence
in a public healthcare facility.
165
The State had provided sufficient evidence that showed
that the medical services available at Charlotte Maxeke Johannesburg Academic
Hospital were as good, if not better, than that which was available in a private facility.
166
Regarding the development of the common law to allow compensation in kind, the court
stated that in the context of medico-legal claims against the State it was hard to ignore
that the State has limited resources and that when the State is ordered to pay damages
156
ibid para 45.
157
ibid paras 54 and 56.
158
ibid para 57.
159
ibid para 58.
160
161
ibid para 19.
162
ibid para 29.
163
ibid.
164
ibid para 39.
165
ibid para 182.
166
ibid para 172.
Harding
16
the money that could have been used by the State to meet its constitutional obligations
is redirected.
167
The court stated that this was a compelling reason to develop the
common law—so as to allow the State to correct the harm it caused while still guarding
against a reduction in its resources.
168
The court found that it was appropriate to develop the common law to allow
compensation through the provision of medical services in the case.
169
However, the
court held that its ruling is not necessarily binding, even in similar cases, and that each
case will ultimately depend on the evidence.
170
The question of development was also
limited by the court to cases of children suffering from cerebral palsy due to negligence
in State hospitals.
171
Hopefully, if in other circumstances the State is able to prove that
the medical care available in public facilities is truly as good or better than that in private
facilities, by proffering actual evidence, then the State may be able to avoid the
excessive costs of private healthcare and redirect funds to improving the public
healthcare system.
Why the CC is Correct in Rejecting Bald Assertions of Resource
Constraints in Delictual Claims against the State
Since Van Duivenboden, the concept of State accountability as a constitutional value
has played an important role in the extension of State liability in the law of delict in the
constitutional era.
172
Many have argued that the extension of liability is hampering the
ability of the State to fix its problems, as resources are redirected from potentially fixing
the problems to paying damages,
173
and that delict in itself is not an appropriate avenue
of law to address the systemic failures of the State that have led to rights violations.
174
While there are assertions that the increasing claims against the State may hamper its
ability to fulfil its obligations,
175
this is not the only cause of declining services.
176
For
example, there are multiple reasons that have been advanced for the poor state of
167
ibid para 178.
168
ibid para 179.
169
ibid para 194.
170
ibid para 192.
171
ibid para 182.
172
Alistair Price, ‘State Liability and Accountability’ in Michael Bishop and Alistair Price (eds), A
Transformative Justice: Essays in Honour of Pius Langa (Juta 2015) 327.
173
Wessels (n 1) 8–9.
174
See Francois Du Bois, ‘Human Rights and the Tort Liability of Public Authorities’ (2011) 127 LQ
Rev 598–599. I do not wish to comment on the appropriateness of using p ublic law remedies over
delict.
175
See Winnie Maphumulo and Busisiwe Bhengu, ‘Challenges of Quality Improvement in the
Healthcare of South Africa Post-apartheid: A Critical Review’ (2019) 42 Curationis 1. In 2015, the
government paid out R498 964 916.72 in terms of litigation regarding medico-legal claims against
the State.
176
ibid.
Harding
17
healthcare facilities in the public sector, which have facilitated the negligence leading
to increasing claims.
177
For example, despite propositions of reforming the public and
private healthcare system to be more equitable and of better quality, prior to the COVID-
19 pandemic funding for public healthcare was decreasing.
178
In terms of restructuring
damages in medico-legal claims, whether more cases like MSM will occur, or whether
progress is made in terms of the State Liability Amendment Bill, remains to be seen.
The CC and SCA are correct in their contention that the State should not be able to avoid
liability based on bald statements of stretched or inadequate resources without any
proof. By disallowing the State to avoid liability by simply asserting it has inadequate
resources, the courts are forbidding the State to escape accountability in terms of both
redressing harm and explaining its actions.
179
Where a party claims compensation from
the State and the State pleads that the claim is unfeasible, the State can either prove there
were insufficient resources for it to fulfil its obligations or admit liability for
negligence—meaning that it cannot use resource constraints as a ‘red-herring excuse’
for poor decision making.
180
O’Regan J, in the context of imputing a public-law duty in Metrorail, commented that
it would not be enough for the State to simply assert that the measures put in place in
terms of its positive duty are reasonable because of resource constraints.
181
The court
will need to determine the reasonableness of the measures in light of the details given
regarding such constraints ‘ … in the context of the overall resourcing of the organ of
state.’
182
O’Regan J stated that this conforms to the principle of accountability as the
State is required to reveal the reasons behind its conduct.
183
The CC’s judgments in
Oppelt and DZ are consistent with this, in holding that merely asserting that there are
resource constraints is not good enough to defeat a delictual claim or to reduce damages.
Mashongwa is potentially problematic. The CC held that negligence was not established
in terms of the provision of security guards because it did not have enough information
regarding the reasonableness of the measures taken by PRASA to mitigate the
possibility of violent crimes on trains.
184
In effect, this allowed PRASA to escape
177
SECTION27 and Institute for Eco nomic Justice, ‘Fact sheet: Funding the Right to Health’
(SECTION27, 2019)
Fact-Sheet.pdf> accessed 3 August 2020. See further Oosthuizen and Carstens (n 13) 275.
178
ibid.
179
See Price (n 172) 315. Price defines accountability as explaining one’s actions and being held
responsible for one’s wrongs.
180
Centre for Economic and Social Rights, SECTION27 and Institute for Economic Justice, ‘Joint
Submission to the Committee on Economic, Social and Cultural Rights on the Occasion of the
Review of South Africa’s first Period Report at the 64th Session, October 2018’ (CESR, October
2018)
FINAL.pdf> accessed 25 July 2020.
181
Metrorail (n 7) para 88.
182
ibid.
183
ibid.
184
Mashongwa (n 18) para 43.
Harding
18
liability for an omission based on its own failure to provide enough evidence showing
the safety measures were reasonable. This is strange as the CC stated that determining
the reasonableness of measures in light of the reasons given for the measures
implemented was consistent with the value of State accountability,
185
but then allowed
the State to escape a finding of negligence based on what the court essentially described
as bald statements of resource constraints.
186
Zitzke states that it is arguable that the CC should have held that a finding of negligence
should be inferred in cases like Mashongwa if the State does not provide adequate
reasons for the way resources are allocated.
187
This seems appropriate because the State
is in the best position to provide reasons for its decisions,
188
and it is in accordance with
the values of accountability and transparency.
189
This also seems to accord with the
ruling in Lee, where the CC relaxed the usual test for factual causation in holding that
Lee did not need to prove what a reasonable healthcare system in the prison would be,
190
which would have been difficult for him to do.
191
There are concerns that the court too closely analysing the budgetary decisions of the
State raises issues regarding the separation of powers.
192
However, although there may
be a danger in this regard, to refuse to do so would allow the State to claim that nothing
can be done regarding current injustices without proof or justification.
193
Ferreira points
out that although claims of resource constraints or ‘feasibility constraints’ on the part of
the State appear to be questions of fact, these claims are not unideological.
194
Allowing
the State to escape liability based on resource constraints without sufficient justification
could allow the State to ‘ … mask anti-egalitarian ideology or a lack of political will to
comply with the Bill of Rights.’
195
Conclusion
The CC’s stance regarding the rejection of bald assertions of resource constraints can
be seen in the Oppelt and DZ, where the State raised resource constraints, and the CC
refused to allow the State to escape liability or reduce damages without evidence
185
ibid para 36.
186
ibid para 39.
187
Zitzke (n 25) 367.
188
See Nick Ferreira, ‘Feasibility Constraints and the South African Bill of Rights: Fulfilling the
Constitution's Promise in Conditions of Scarce Resources’ (2012) 129 SALJ 289–290. Ferreira
argues, in terms of assessing the reasonableness of the State’s actions, that a flexible approach should
be adopted.
189
Zitzke (n 25) 367.
190
Lee 2013 (n 16) para 57.
191
Price (n 92) at 497.
192
Ferreira (n 188) 275.
193
ibid 297.
194
ibid 275.
195
ibid.
Harding
19
regarding such constraints. Further, in Lee, the CC permitted a finding of factual
causation without necessitating Lee to prove what a reasonable system would be,
196
which may have been difficult and expensive for him and for future victims in the same
position.
197
However, Mashongwa may be potentially problematic in that the CC
effectively permitted bald statements of resource constraints to allow PRASA to avoid
a finding of negligence in terms of not providing security guards.
It is trite that where there is a right there must be a remedy for its violation.
198
After
rights were entrenched in the Constitution, and the State was given active duties
regarding their fulfilment, delict has been used as a tool to vindicate such rights and
ensure State accountability.
199
Although allowing increasing delictual claims against the
State may potentially redirect funds from fixing the problems at the root of such
claims,
200
the CC has been correct in disallowing the State to escape liability or reduce
damages based solely on assertations of resource constraints without sufficient
corroboration.
References
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Law’ (2010) 26 South African Journal of Human Rights
196
Lee 2013 (n 16) para 57.
197
Ferreira (n 188) 289.
198
199
Price (n 172) 320.
200
Wessels (n 1) 9.
Harding
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Africa Post-apartheid: A Critical Review’ (2019) 42 Curationis
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Okpaluba C, ‘The Law of Bureaucratic Negligence in South Africa: A Comparative
Commonwealth Perspective’ (2006) Acta Juridica.
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of the Problem’ (2015) 78 Tydskrif vir Hedendaagse Romeins-Hollan dse Reg .
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Roederer C, ‘The Transformation of South African Private Law after Ten Years of Democracy:
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Wallis M, ‘Revel without a Cause – Delictual Liability after Lee? (2019) 1 36 South African
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development of the law of delict’ (2019) 30 Stellenbosch Law Review.
Zitzke E, ‘A New Proposed Methodology for Effecting Transformation in the Law of Delict’
(LLD thesis, University of Pretoria 2016).
Cases
August v The Electoral Commission 1999 (3) SA 1 (CC).
Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC).
Kruger v Coetzee 1966 (2) SA 428 (A).
Le Roux v Dey 2011 (3) SA 274 (CC).
Lee v Minister of Correctional Services 2011 (6) SA 564 (WCC).
Lee v Minister of Correctional Services 2013 (2) SA 144 (CC).
Loureiro v iMvula Quality Protection 2014 (3) SA 394 (CC).
Mashongwa v PRASA 2016 (3) SA 528 (CC).
MEC, Health and Social Development, Gauteng v DZ obo WZ 2018 (1) SA 335 (CC).
Minister of Correctional Services v Lee 2012 (1) SACR 492 (SCA).
Minister of Safety and Security and Another v Carmichele [2003] 4 All SA 565 ( SCA).
Minister of Safety and Security v Rudman 2005 2 SA 16 (SCA).
Minister of Safety and Security v Van Duivenboden [2002] 3 All SA 741 (SCA).
Minister van Polisie v Ewels 1975 (3) SA 590 (A).
Moulang v Port Elizabeth Municipality [1958] 3 All SA 8 (A).
Harding
22
MSM obo KBM v Member of the Executive Council for Health, Gauteng Provin cial
Government 2020 (2) SA 567 (GJ).
Oppelt v Head: Health, Department of Health Provincial Administration: Western Cape 2016
(1) SA 325 (CC).
Rail Commuters Action Group v Transnet Ltd t/a Metrorail 2005 (2) SA 3 59 (CC).
Van Eeden v Minister of Safety and Security [2002] 4 All SA 346 (SCA).
Legislation
Constitution of the Republic of South Africa, 1996.
State Liability Act 20 of 1957.
State Liability Amendment Bill GG 41658 (25 May 2018).
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