THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 657/2013

In the matter between:
THE MINISTER OF POLICE

Appellant
and
VONGANI SHARON MBOWENI

First Respondent
RUDZANI LOLLA MAKATU

Second Respondent
Neutral citation: Minister of Police v Mboweni (657/2013) [2014]
ZASCA 107 (5 September 2014)
Coram:
MPATI P, BOSIELO, WALLIS and MBHA JJA and
SCHOEMAN AJA
Heard:
25 August 2014
Delivered: 5 September 2014
Summary:  Special case – requirements for – facts must be agreed and
fully set out – section 28(1)(b) of the Constitution – deprivation of
parental support – constitutional damages.

ORDER

On appeal from:  North Gauteng High Court, on circuit in Polokwane
(Mothle J sitting as court of first instance):
The appeal is upheld and the action is referred back to the high
court for trial in accordance with the provisions of this judgment.
All parties will bear their own costs of the appeal.

JUDGMENT

Wallis JA (Mpati P, Bosielo and Mbha JJA and Schoeman AJA
concurring)
[1] On 15 March 2009 the police arrested Mr Wisani Mahlati and
detained him at the Ritavi police station. During his detention two other
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 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, a few months prior to his death.
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 Constitution]
was impaired upon‟ 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
payable in respect of loss of support of 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 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 has died as a result of the
unlawful conduct of a third party has a right to sue for constitutional
damages arising from an infringement of the constitutional right to
parental care as provided in section 28(1)(b) of the Constitution‟. Mothle
J answered this question in the affirmative and granted an order in the
following terms:
„[1]
The Plaintiffs‟ right to claim for constitutional damages lodged on behalf of
the minor children of the deceased, succeeds;

[2] The Defendant is liable to compensate the minor children of the 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
importance with far-reaching ramifications if the judgment of the court
below is sustained. Although the Constitutional Court in Fose2 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
been awarded as a remedy for the breach of a constitutional right are the
Modderfontein Squatters case3 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
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
was 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

1 The judgment is reported as M and Another v Minister of Police 2013 (5) SA 622 (GNP).
2 Fose v Minister of Safety and Security 1997 (3) SA 786 (CC).
3 Modderfontein Squatters, Greater Benoni City Council v Modderklip Boerdery (Pty) Ltd (Agri SA &
Legal Resources Centre, Amici Curiae); President of the RSA v Modderklip Boerdery (Pty) Ltd 2004
(6) SA 40 (SCA).
4 MEC, Department of Welfare, Eastern Cape v Kate 2006 (4) SA 478 (SCA).

whether damages were on the facts of those cases an appropriate remedy
for breaches of the claimants‟ constitutional rights. The facts and those
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
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
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 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:
„(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 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
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.

[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
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 case”… In none of them is
“special case” defined, presumably because the expression has an accepted meaning.
Mozley and Whiteley's Law Dictionary 7th ed says sv “special case” that it is:
“1. A statement of facts agreed to on behalf of two or more 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, agreed to by the
parties, so that the court may decide these questions according to law... It is also
known as a case stated.”

5 National Union of Mineworkers and Others v Hartebeestfontein Gold Mining Co Ltd 1986 (3) SA 53
(A) at 56G-57E.

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 (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” 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 it. The question must not be an abstract or academic question. Courts
of law exist for
“the settlement of concrete controversies, ... not to pronounce upon abstract questions,
or to advise upon differing contentions, however important.”
(Per INNES CJ in Geldenhuys and Neethling v Beuthin 1918 AD 426 at 441.)
Consequently, in order to enable this Court to determine whether the questions of law
reserved do or do not arise in the proceedings, the industrial court should set out in the
special case something which shows what has arisen, and how it has arisen.‟

[8] It is clear therefore that a special case must set out agreed facts, not
assumptions. The point was re-emphasised in Bane v D’Ambrosi,6 where
it was said that deciding such a case on assumptions as to the facts defeats
the purpose of the rule, which is to enable a case to be determined
without the necessity of hearing all, or at least a major part, of the
evidence. A judge faced with a request to determine a special case where
the facts are inadequately stated should decline to accede to the request.
The proceedings in Bane v D’Ambrosi were only saved because the
parties agreed that in any event the evidence that was excluded by the
judge‟s ruling should be led, with the result that the record was complete

6 Bane v D’Ambrosi 2010 (2) SA 539 (SCA) para 7.

and this court could then rectify the consequences of the error in deciding
the special case.

[9] The statement of facts in this case described in some detail the
circumstances of Mr Mahlati‟s detention and death. In regard to the
children‟s claims, however, it provided virtually no detail. They were
identified and it was said that their father had been under a legal duty to
support them and had supported them. Then followed a bald statement
that the deceased provided parental care to his two daughters. On that
basis it was said that they were entitled to constitutional damages because
they had been deprived of their biological father and guardian and thus
deprived of their constitutional right in terms of s 28(1)(b) of the
Constitution. Nothing more was placed before the judge in respect of this
claim.

[10]  It appears that the parties thought that the statement that Mr
Mahlati provided parental care to his daughters was a statement of fact
that sufficiently raised the point of legal principle of whether a claim for
constitutional damages was legally tenable. In that they erred. The
statement was a conclusion that a constitutionally protected right had
been infringed, which is a mixed matter of fact and law. A brief look at
s 28(1)(b) of the Constitution reveals why that is so.  The section reads as
follows:
„Every child has the right … to family care or parental care or to appropriate
alternative care when removed from the family environment.‟
The right is couched in the alternative, not as three separate and distinct
rights. Children have the right to family care or parental care or
appropriate alternative care. The third of these, which presupposes the
absence of the first two, demonstrates that there are alternative ways of

ensuring the fulfilment of the right generally embodied in the section. The
right is thus a right that the child will be cared for, that can be fulfilled in
different ways. That at least raises the possibility that the right is satisfied
if any one of those alternatives exists as a matter of fact. The language of
the section suggests a progression from an ideal of being raised and cared
for in a family, bearing in mind that concepts of family differ among
different communities in this country and that the notion of what
constitutes a family is subject to evolution over time, to parental care by
one or both of a child‟s parents,7 to appropriate alternative care, which
may mean foster care or care in an appropriate home or institution.8 The
latter is probably seen as the least desirable situation, but may be
necessary in the best interests of the child, which are paramount in terms
of s 28(2) of the Constitution.

[11] The fact that section 28(1)(b) expresses the right that it embodies in
three alternatives, demanded that in the first instance there be a proper
analysis of the different elements of the right and, in particular, the
relationship between the right to family care and the right to parental
care. In Grootboom,9 Yacoob J said that ss 28(1)(b) and (c) must be read
together and that the former defines those responsible for giving care,
while the latter lists various aspects of the care entitlement. His approach
to the three alternatives was that:
„They ensure that children are properly cared for by their parents or families, and that
they receive appropriate alternative care in the absence of parental or family care.‟

7 The word „parent‟ may encompass a biological, adoptive or foster parent or a parent who has become
such by virtue of a surrogacy agreement.
8 These were described as three contingencies in Jooste v Botha 2000 (2) SA 199 (T) at 208D-F. The
conclusion that parental care necessarily means care by a custodian parent may be unduly restrictive.
9 Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA 46
(CC) para 76. See also Minister of Health and Others v Treatment Action Campaign and Others (No 2)
2002 (5) SA 721 (CC) paras 74-76 (hereafter TAC (No 2)).

At least superficially that appears to support an interpretation that the
rights guaranteed by the section are fulfilled if the child is cared for by
any one of those responsible for giving that care, or at least that one of
those responsible for that care provides it. The primary obligation clearly
rests on family and parents, but, as the second TAC case shows, where
they are for reasons of poverty or otherwise unable to provide necessary
care the State may be obliged to step in.10

[12] The court below simply elided the concepts of family care and
parental care11 by reference to the definition of „care‟ in the Children‟s
Act 38 of 2005. Appropriate though reference to that definition might be
in certain circumstances, it was not directed at the problem facing the
court below of a claim for damages arising from an alleged breach of the
constitutional right embodied in s 28(1)(b) of the Constitution. An
important question in that analysis, where a family unit is disrupted by
the death of one parent, is whether the fact that the child is thereafter
cared for by the surviving parent means that there was no infringement of
the right, because it is being fulfilled in a different way. An alternative
approach would be that the right is in part infringed because there is an
element of deprivation in the change from a situation where both parents
participate in the child‟s life to that where one parent shoulders the entire
burden of care. If the parents were separated and the one parent provided
the child‟s day to day care, another question would be whether the death
of the other parent deprived the child of parental care in terms of
s 28(1)(b). The separation of father and mother might already have done
so.

10 TAC (No 2) para 77.
11 As do the authors of the section on „Children‟s Rights‟ in Constitutional Law of South Africa, 2nd ed
(loose-leaf) section 47.3 (Revision service 07-09).

[13] These two questions could easily have arisen in this case, the first
in relation to Mr Mahlati‟s wife and his newly born child and the second
in relation to the older child from whose mother he appeared to be
separated. As they illustrate, it was essential for the court to be told or to
determine the facts in order to have a full picture of what Mr Mahlati did
in relation to his daughters that was said to constitute parental care, the
loss of which would warrant an award of constitutional damages. In every
case whether the parent who has died provided parental care in terms of
the Constitution would depend on the relationship between the parent
who has died and the children in respect of whom the claim is being
made.

[14] The central issue in this case was whether, and if so in what way,
the two girls had been deprived of parental care in the sense in which that
expression is used in the Constitution. Their mothers represented them in
this litigation. Presumably they were and are receiving parental care from
their mothers. In the case of the younger of the two girls she was but a
babe in arms when her father died. She will never really have known him
even though he was at the time married to her mother and I assume,
although like much else this does not appear from the record, had
established a family home with her. If he was, then one would have
thought her claim would be one for loss of family care rather than loss of
parental care, which she clearly still enjoys. In the case of the older girl
she was living with her mother at a different address from her half-sister.
Although both homes are in the same town we do not know if they were
sufficiently close for Mr Mahlati to visit both on a daily basis or whether
he tried to do so. We do not even know whether, like so many South
Africans, commercial necessity forced him to live away from home most
of the time. All we know from the pleadings is that he was detained at a

police station over 100 kilometres away from the town where his children
were living. Without knowing what role Mr Mahlati played in the lives of
his children it was impossible for the court below to determine that a loss
had been suffered, much less the nature of that loss.

[15] The court below recognised the relevance of these facts, because in
para 51 of the judgment the following was said:
„In the case of loss of parental nurturing the most important factors to be alleged and
proved will be the ages of the children at the time of death of the parent, [the] nature
of the relationship between the child and the parent, the role which the parent played
in the child‟s development, time spent together and the general financial contribution
by the deceased in the upbringing of the child. Some cases also distinguish between
the instances where one parent survives the other, in which case the award would be
substantially less than in the instance where both parents perish. Further arguments
have also been raised in some cases, concerning the prospects of re-marriage, with a
view to bring in a partner who would otherwise replace the lost parental services.‟
It is unclear why, in the light of this, the learned judge proceeded to make
an order holding the Minister liable to the respondents for proven
constitutional damages arising out of the unlawful deprivation of Mr
Mahlati‟s parental care. None of the facts he identified as important to the
determination of whether there had been a loss of parental care had been
alleged or admitted. As a result he was not in a position to assess whether
there had in fact been any loss of parental care.

[16] The judge‟s approach was to leave these questions to a later stage
of the trial where the issue of quantum would be considered. That was not
appropriate, because the first issue he had to determine was whether there
had been any deprivation of parental care at all. Until he had determined
the nature of parental care for the purposes of s 28(1)(b) and, on the basis
of evidence or admissions of fact, decided that there had been a

deprivation of parental care, no question of quantum could arise. An
enquiry into damages cannot take place in the air. It must be an enquiry
into the damages arising from an identified wrong.

[17] The difficulties to which this gave rise emerge from the judgment
itself. In para 54 the judge held that the plaintiffs have a right to claim
constitutional damages on behalf of their children for unlawful
deprivation of their father‟s care. Immediately thereafter in para 55 he
said that this finding was for the purpose of determining whether the
plaintiffs had the „right to sue‟ on behalf of their children and recorded
that liability was not conceded. It appears that he was of the view that
liability was still in issue because of the absence of evidence on the issues
he had identified. In other words the issue was determined as if on
exception. But that was incompatible with the declaration of liability that
he proceeded to make against the Minister.

[18]  A second area of concern with the approach adopted in the court
below is that, even if the facts showed that the children had been deprived
of parental care within the meaning of s 28(1)(b), that did not necessarily
establish their right to claim damages. A further issue was whether the
actions, or more accurately inaction, of the police in failing to safeguard
and care for Mr Mahlati while in police custody, constituted a wrongful
act in relation to the children. It was clearly wrongful in relation to Mr
Mahlati himself, but whether it constituted a wrongful breach of the
children‟s constitutional right is a different matter. The court needed first
to decide whether the right operates horizontally in terms of s 8(2) of the
Constitution so as to extend to the policemen in the present situation or
whether, if it does not, the position of state employees is different, by
virtue of s 8(1) of the Constitution. It also required the court to decide

whether the police owed a legal duty to the children to avoid or prevent
them from suffering a loss of parental care. Not every breach of
constitutional duty is equivalent to unlawfulness in the delictual sense and
therefore not every breach of a constitutional obligation constitutes
unlawful conduct in relation to everyone affected by it.12

[19]  Insofar as Mr Mahlati was concerned the police were in breach of
his constitutional rights to human dignity, life and freedom and security
of the person in terms of ss 10, 11 and 12 of the Constitution. But their
obligation to protect Mr Mahlati while in their custody does not
necessarily mean that they were at the same time under a legal duty to his
children to secure their rights in terms of s 28(1)(b). That raised and
demanded an assessment of policy considerations similar to those that
operate in relation to the existence of a legal duty in delictual claims. In
Steenkamp13 Moseneke DCJ summarised the position as being that
„whether or not a legal duty to prevent loss occurring exists calls for a
value judgment embracing all the relevant facts and involving what is
reasonable and, in the view of the court, consistent with the common
convictions of society‟. The court below did not undertake this enquiry
and it is apparent from the heads of argument in this court that counsel
had not appreciated its relevance.

[20] Even if those issues could be and had been determined in favour of
the respondents there remained the further issue of whether constitutional
damages were the appropriate constitutional remedy for that breach. The
heads of argument in this court framed the debate as being one between
constitutional damages as a remedy and a development of the common

12 Steenkamp NO v Provincial Tender Board, Eastern Cape 2007 (3) SA 121 (CC) para 37.
13 Para 39 and the further discussion in paras 40-42.

law relating to the assessment of damages to permit recovery of an
amount in respect of general damages under the head of deprivation of
parental support, but that was not the primary issue. The first issue was
whether the existing remedy by way of damages for loss of support was
inadequate to compensate the children for any breach of their right to
parental care from their father. In that regard, a curious feature of the
court below‟s judgment is that the judge said that:
„The claim for loss of parental care goes further than that of the loss of support.
However, in my view, the child cannot claim for both loss of support and deprivation
of parental care separately as the former is part of the latter. Such claim would amount
to duplication and undue enrichment.‟
If that was indeed his view then it is entirely unclear why he even
addressed the issue of a claim for constitutional damages for breach of the
children‟s s 28(1)(b) rights, because he had already granted judgment in
their favour for damages for loss of support.

[21] The proper starting point for the enquiry was to consider whether
the existing remedy by way of damages for loss of support was an
appropriate remedy for any breach of the children‟s constitutional rights.
As Moseneke DCJ pointed out in Law Society of South Africa and Others
v Minister of Transport and Another:14
„It seems clear that in an appropriate case a private-law delictual remedy may serve to
protect and enforce a constitutionally entrenched fundamental right. Thus a claimant
seeking “appropriate relief” to which it is entitled, may properly resort to a common-
law remedy in order to vindicate a constitutional right.‟
In another case15 Moseneke DCJ said:
„There appears to be no sound reason why common law remedies, which vindicate
constitutionally entrenched rights, should not pass for appropriate relief within the

14 Law Society of South Africa and Others v Minister for Transport and Another 2011 (1) SA 400 (CC)
para 74.
15 Dikoko v Mokhatla 2006 (6) SA 235 (CC) para 91.

reach of s 38. If anything, the Constitution is explicit that, subject to its supremacy, it
does not deny the existence of any other rights that are recognised and conferred by
the common law.‟

[22] The court below did not consider whether a remedy by way of a
claim for damages for loss of support was an appropriate remedy for any
breach of the children‟s rights in this case. Its approach was that the
Constitutional Court in Fose16 had recognised the possibility of a claim
for constitutional damages as an appropriate remedy for a breach of a
constitutional right and the only issue was whether such damages should
be awarded for a breach of the right in s 28(1)(b) of the Constitution. That
approach was incorrect. The court should first have considered the
adequacy of the existing remedy. If it was inadequate then it should have
considered whether the deficiency could be remedied by a development
of the common law to accommodate a claim more extensive than one for
pecuniary loss. Ackermann J pointed out in Fose17 that the common law
of delict is flexible and falls to be developed with due regard to the spirit,
purport and objects of the Bill of Rights. Another consideration is that the
infringement of constitutional rights may often be appropriately
vindicated by resort to public law remedies.18

[23] I am also concerned that there may be a misunderstanding of the
ambit of the dictum in Fose on which the claim for constitutional
damages was advanced and a lack of appreciation of what that case
decided. It is as well therefore to remind ourselves of what Ackermann J
said in para 60 of his judgment. The passage reads as follows:

16 Fose para 60.
17 Fose para 58(b).
18 Rail Commuters Action Group and Others v Transnet Ltd t/a Metrorail and Others 2005 (2) SA 359
(CC) para 81.

„it seems to me that there is no reason in principle why “appropriate relief” should not
include an award of damages, where such an award is necessary to protect and
enforce chap 3 rights. Such awards are made to compensate persons who have
suffered loss as a result of the breach of a statutory right if, on a proper construction
of the statute in question, it was the Legislature's intention that such damages should
be payable, and it would be strange if damages could not be claimed for, at least, loss
occasioned by the breach of a right vested in the claimant by the supreme law. When
it would be appropriate to do so, and what the measure of damages should be will
depend on the circumstances of each case and the particular right which has been
infringed.‟

[24] In the first place Ackermann J said that where a delictual claim
arising from a breach of statutory duty is made, the award is made to
compensate the injured party for loss that they have suffered. In other
words the claim is for pecuniary loss of the type ordinarily recoverable by
way of the Aquilian action. It is not a claim for a solatium or for general
damages. The latter are recognised in claims arising from personal
injuries, but that is an exception to the general rule that the Aquilian
action is an action to recovery pecuniary loss. It was in the context of the
fact that damages to compensate for pecuniary loss are recoverable in an
Aquilian action, where the legal duty that has been breached arose from a
statutory provision, that Ackermann J remarked that it would be strange if
a similar claim could not be brought arising out of a breach of a
constitutional right. It is so that he added the rider „at least‟ before his
reference to „loss‟ but that does not mean that he endorsed a general
proposition that constitutional damages will encompass a solatium or
general damages. Whether our law should develop in that direction in
some instances remains an open question. The awards in both
Modderfontein Squatters and Kate were based on quantifiable financial
harm and the rejection in Fose of claims for punitive damages points in

the opposite direction. It would be a curious result indeed were the legal
position to be that Mr Mahlati could not have obtained an award of
constitutional damages for the assaults perpetrated on him, because of the
rejection of such awards in Fose, but, because he died, his daughters can
obtain an award of constitutional damages beyond their claim for
damages for loss of support on the basis of the same decision.

[25]  The final point that should have been born in mind in the
consideration of these claims was the broader implications of a judgment
in favour of the respondents. The most obvious instance in South Africa
of a child losing a parent as a result of the unlawful actions of a third
party would be where the parent was killed in a motor accident and the
target of the claim was the Road Accident Fund. The members of this
court are well aware that the Fund is under considerable financial
pressure dealing with the claims that it faces at present. Recognising
claims of the type now suggested would add to its existing burden. That
necessitates our approaching the matter aware that any decision will have
an effect going beyond the facts of the present case. In those
circumstances, before the court below arrived at a decision with
potentially far-reaching consequences it should have ensured that any
parties, and especially those organs of state that discharge their
responsibilities from public funds, had the opportunity to appear and
make submissions that would enable the court to arrive at a just
conclusion. As Jafta J pointed out in Mvumvu:19
„… in determining a suitable remedy, the courts are obliged to take into account not
only the interests of parties whose rights are violated, but also the interests of good
government. These competing interests need to be carefully weighed.‟

19 Mvumvu and Others v Minister of Transport and Another 2011 (2) SA 473 (CC)
para 49.

The competing interest in that case was that a retrospective declaration of
invalidity would increase the Road Accident Fund‟s liabilities by R3
billion. In the present case the Road Accident Fund and the Ministers of
Transport and Finance would appear to have had a significant interest in
the decision that the court below was called upon to make and would
have been able to make a contribution to its determination. In those
circumstances they should have been afforded the opportunity to
intervene in order to make that contribution.

[26]   In the result the court below failed to address issues of a factual
and a legal character that were central to the decision that it was called
upon to make. For those reasons the judgment of the court below cannot
stand. It was but faintly suggested on behalf of the Minister that the claim
should be dismissed, but as the Minister was a party to the inappropriate
procedure adopted in the court below that would not be justified. As to
costs the parties are jointly responsible for the situation that has arisen.
As this was an endeavour on the part of the respondents to vindicate
constitutional rights it is appropriate that the parties bear their own costs
of the appeal.

[27] The following order is accordingly made:
The appeal is upheld and the action is referred back to the high
court for trial in accordance with the provisions of this judgment.
All parties will bear their own costs of the appeal.

M J D WALLIS
JUDGE OF APPEAL

Appearances

For appellant:
P J J de Jager SC (with him A Granova)
Instructed by:
State Attorney
Pretoria and Bloemfontein

For respondent:

G J Diamond

Instructed by:

Diamond Hamman & Associates, Polokwane;
Van
Pletzen
Lambrechts
Attorneys,
Bloemfontein.

Supreme Court of Appeal of South Africa

MEDIA SUMMARY– JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL

From:   The Registrar, Supreme Court of Appeal

Date:  5 September 2014

Status:  Immediate

Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal.

Minister of Police v Mboweni
Mr Mahlati died as a result of an assault perpetrated on him by other prisoners while
he was in police custody. The Minister of Police accepted liability for failing to protect Mr
Mahlati from harm while in police custody. The claims of his wife and two daughters, one
from a previous relationship, for damages for loss of support wre settled and judgment was
given for payment of the agreed amounts.

The mothers of the two children wished to pursue a further claim for damages on
behalf of their daughters based on a breach of the children’s right to parental care in terms of
section 28(1)(b) of the Constitution. The Minister of Police did not accept that such a claim is
recognised in law. The parties therefore formulated an agreed statement of facts on which
they asked the high court to determine whether such a claim was a valid claim in law. The
high court upheld the claim although it held that liability was not admitted and issued a
declaratory order that the minister of police was liable for such damages as might be proven
at a further hearing.

The SCA today set aside that judgment and referred the case back to the high court
for determination after a trial. It did so on the basis that the procedure adopted by the high
court was incorrect. The parties had failed to place the relevant facts concerning the nature of
the relationship between Mr Mahlati and his daughters before the judge and it was
accordingly not possible to say whether and to what extent there had been a loss of parental
care in the sense given to that expression by the Constitution.

The SCA also pointed out that the proper interpretation of the constitutional right in
section 28(1)(b) of the Constitution is a matter of some difficulty as the right embodied in the
section is expressed as being a right to family care or parental care or appropriate alternative
care outside the family environment. This alternative formulation raises issues concerning the
persons responsible for ensuring the right is fulfilled that the high court had not addressed. It
also raised issues concerning the existence and scope of the legal duties on the police and the
appropriateness of a remedy of constitutional damages in addition to the damages recoverable
in respect of the loss of support arising from the death of the family breadwinner.
Lastly the existence of such a remedy could have a substantial impact on public funds,
such as those of the Road Accident Fund, who were not represented before the high court.
Accordingly an opportunity ought to have been given for bodies such as that to participate in
the proceedings. The judgment of the high court was accordingly set aside and the matter
referred back for trial in which the issues could be fully and properly canvassed.