In two 2021 judgments, Residents of Industry House and Thubakgale, the Constitutional Court of South Africa refused to award damages for human rights violations (‘constitutional damages’). The implications for the violated rights at the heart of each case have received some attention. However, the reasoning in these cases is also indicative of a shift in approach to courts’ remedial powers. In contrast to the broad, creative use of remedial powers it highlighted in its earlier jurisprudence on constitutional damages, the Court appears to have established rules relating to constitutional damages that may limit courts’ remedial flexibility.

Establishing the breadth of courts’ remedial powers: Fose and Modderklip

In its first decade, the Constitutional Court handed down two judgments dealing with constitutional damages under section 38 of the South African Constitution. Section 38 empowers courts to grant “appropriate relief” when a right in the Bill of Rights has been threatened or infringed.

In its seminal case regarding constitutional remedies, Fose (1997), the Court held that courts have a duty to grant relief that “effectively vindicate[s]” infringed constitutional rights (particularly since so few people have the means to enforce their rights in court). To achieve this goal, courts are “obliged to ‘forge new tools’ and shape innovative remedies, if needs be” [69].

In the second relevant case, Modderklip (2005), constitutional damages were not claimed by the applicant. However, the Court decided itself that constitutional damages would be the “most appropriate” interim relief for an ongoing rights violation. It calculated damages using a legislative mechanism ordinarily used for another purpose, arguing that it would not be in the interests of justice to require the applicant to institute further proceedings to claim damages [58]. In moulding this innovative remedy, the Court thus embraced the ‘duty’ it had emphasised in Fose.

Introducing some rigidity: Residents of Industry House and Thubakgale

More than a decade later, with an entirely new bench and under different political conditions, the Constitutional Court again considered granting constitutional damages in two cases.

In the first, Residents of Industry House (2021), the Court established ‘considerations’ that should guide courts deciding whether constitutional damages are the “most appropriate” remedy [118]. It held that the overarching consideration is whether alternative appropriate remedies exist. If another appropriate remedy is available, constitutional damages should be refused unless it would be “manifestly unjust” to require them to pursue that remedy [105]. In refusing the applicants’ claim for constitutional damages, the Court pointed simply to the availability of a claim for common law or legislative damages (albeit a claim that the Court accepted would be onerous for the applicants to prove) [110]. It did not consider various other factors, including the comparative appropriateness of common law damages.

In a judgment that followed soon after, Thubakgale (2021), the Court again refused to grant constitutional damages. It held that damages had not been granted for the type of rights violation in question before and was thus not a remedy recognised in South African law [190]. Without considering the comparative appropriateness of the various remedies at the applicants’ disposal, the Court explained that the applicants “chose the wrong one” [194]. Unlike in Modderklip, the Court did not consider crafting or granting an alternative remedy itself.

Implications for remedial flexibility

The reasoning of the Court in its two latest judgments on constitutional damages can be understood to have (perhaps unintentionally) established three principles. First, constitutional damages are strictly a remedy of last resort. Second, applicants must select the most appropriate relief themselves, failing which a court might not grant any relief at all. Third, the burden is on applicants claiming constitutional damages to prove that alternative remedies are entirely inappropriate, or that it would be “manifestly unjust” to require applicants to pursue them (in practice, an extremely high bar).

All three principles reflect a shift away from the Court’s earlier caselaw, which emphasised courts’ flexibility and creativity in devising appropriate remedies, and a duty on courts to formulate and grant effective relief when human rights have been violated.  This shift was criticised by the minority in Thubakgale, who argued that the Court’s fixation with alternative remedies had resulted in it asking the wrong questions [96]. Ultimately, courts need focus only on the question of what remedy is most appropriate in the circumstances.