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)

<https://www.cesr.org/sites/default/files/FACTSHEET-Artwork-Online-

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

2005 (2) SA 359 (CC).

8

ibid para 30.

9

CESR (n 3).

10

Wessels (n 1) 9.

11

ibid 9–10.