Constitutional damages for the infringement of a social assistance right in South Africa are monetary damages in the form of interest a just and equitable remedy for breach of a social assistance right
- Authors: Batchelor, Bronwyn Le Ann
- Date: 2011
- Subjects: South Africa -- Constitution -- Bill of Rights , Constitutional law -- South Africa , Human rights -- South Africa , Constitutional history -- South Africa , Social security -- Law and legislation -- South Africa , Civil rights -- South Africa , Common law -- South Africa , Compensation (Law) , Damages
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11117 , http://hdl.handle.net/10353/388 , South Africa -- Constitution -- Bill of Rights , Constitutional law -- South Africa , Human rights -- South Africa , Constitutional history -- South Africa , Social security -- Law and legislation -- South Africa , Civil rights -- South Africa , Common law -- South Africa , Compensation (Law) , Damages
- Description: This dissertation will explore the revolutionary progression in the provision of monetary damages and the availability thereof due to the change in South Africa’s legal system from Parliamentary sovereignty to Constitutional supremacy after the enactment of the final Constitution in 19961. The Constitution of South Africa brought with it the concepts of justification and accountability as the Bill of Rights enshrines fundamental rights and the remedies for the infringement of same. The available remedies for the infringement of a fundamental right flow from two sources, being either from the development of the common law remedies in line with the Bill of Rights or alternatively from Section 38 of the Constitution, which provides for a remedy which provides ‘appropriate’ relief. The question that will be raised in this dissertation is, ‘does appropriate relief include an award of delictual damages?’ or a question related thereto ‘is an award of monetary damages an appropriate remedy?’ The motivation for this dissertation arises from the plethora of case law, especially in the Eastern Cape, that has come to the fore in the last sixteen years, highlighting the injustice of cancellations of social assistance grants and the non-payment of such in South Africa’s social security system, as well as the precedent that was set by our Constitutional Court and Supreme Court in remedying that injustice. The central case to this dissertation is that of Kate v Member of Executive Council for Department of Welfare, Eastern Cape 2005 1 SA 141 SECLD; Member of Executive Council, Department of Welfare, Eastern Cape v Kate 2006 (4) SA 478 (SCA), which is generally regarded as having paved the way for the granting of monetary damages for the infringement of an individual’s constitutional right as same require legal protection. Firstly the past approach to damages will be explored in relation to South Africa’s common law, being the Roman-Dutch law. The common law Aquilian action is the focal point of this dissertation in relation to the common law in that the granting of damages for the infringement of an individual’s social assistance right (being a specific constitutional right framed within the 1996 Constitution) results in pure patrimonial loss which in our common law system was remedied by the actio legis Aquilae. In delict, an award of damages is the primary remedy, aimed at affording compensation in respect of the legal right or interest infringed. After the common law system of damages has been explored, this dissertation will then examine the changes that have developed therefrom, and largely shaped by the current state of disorganization in the National Department of Welfare coupled with the all encompassing power of the final Constitution. The final Constitution provides the power, in section 38 of the 1996 Constitution, for the court to award a monetary remedy for the breach of a constitutional right. The question, however, is “does the award of monetary damages not merely throw money at the problem, whereas the purpose of a constitutional remedy is to vindicate guaranteed rights and prevent or deter future violations?” The battle for domination between the common law approach and the constitutional approach to damages is witnessed as the two systems eventually amalgamate to form an essentially new remedy, unique to South Africa. South Africa’s new system is aligned with the Constitution as the Constitution is the supreme law of the land and underpins the awarding of all damages and, especially, the awarding of constitutional damages. For the sake of completeness, alternatives to monetary damages will also be canvassed in this dissertation. It is hoped that the reader will, in the end, realize that the final Constitution is the supreme law of the land and as such dictates the manner and form in which damages are provided. If such provision is not in alignment with the Constitution, it will be declared invalid. The flexibility of our common law is put to the test, yet it is found to be adaptable to the ever-developing boni mores of society exemplified in the embracing constitutional principles and the production of this new remedy. The courts develop the common law under section 39(2) of the Constitution in order to keep the common law in step with the evolution of our society and the ever changing nature of bonos mores. , National Research Foundation
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- Date Issued: 2011
Racism and law : implementing the right to equality in selected South African equality courts
- Authors: Krüger, Rósaan
- Date: 2009
- Subjects: South Africa Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 , Equality -- South Africa , Discrimination -- Law and legislation -- South Africa , Racism -- Law and legislation -- South Africa , Apartheid -- Law and legislation -- South Africa , Constitutional law -- South Africa , South Africa -- Politics and government -- 1994-
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:3677 , http://hdl.handle.net/10962/d1003192 , South Africa Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 , Equality -- South Africa , Discrimination -- Law and legislation -- South Africa , Racism -- Law and legislation -- South Africa , Apartheid -- Law and legislation -- South Africa , Constitutional law -- South Africa , South Africa -- Politics and government -- 1994-
- Description: Racism has informed South African society since colonial times. Racist beliefs found expression in the laws of colonial and apartheid South Africa and shaped both state and society. The constitutional state that South Africa has become since 1994, is based on the values of ‘human dignity’, ‘the achievement of equality’ and ‘nonracialism’, among others. Law formed the basis of the racist state prior to 1994, and now law has a fundamental role to play in the transformation of the state and society in an egalitarian direction by addressing socio-economic inequalities on the one hand, and by changing patterns of behaviour based on racist beliefs forged in the past, on the other. This thesis examines one of the legal instruments that is intended to contribute to transformation in the latter sense, namely the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (the Equality Act), with specific reference to the issue of racism. The provisions of this Act and the framework for its operation against the background of South Africa’s racist past, and within the broader framework of international and constitutional law, are examined. These two legal frameworks are analysed for the purpose of determining the standards set by international and constitutional law regarding racial equality in order to determine whether the Equality Act measures up. This thesis also incorporates an analysis of the practical application of the provisions of the Equality Act to complaints of racism in selected equality courts. The theoretical analysis of the Act’s provisions and their application in the equality courts point to various problematic formulations and obstacles which negatively affect the application of the provisions and thus hamper social change. The thesis concludes with recommendations for refining the Act’s provisions and its application.
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- Date Issued: 2009