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[2014] ZASCA 107
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Minister of Police v Mboweni and Another (657/2013) [2014] ZASCA 107; 2014 (6) SA 256 (SCA); [2014] 4 All SA 452 (SCA) (5 September 2014)
Links to summary
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):
1.
The appeal is upheld and the action is
referred back to the high court for trial in accordance with the
provisions of this judgment.
2.
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
Fose
[2]
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
case
[3]
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 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.”
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 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.’
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
care
[11]
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.
[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
Steenkamp
[13]
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 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 case
[15]
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 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
Fose
[16]
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
Fose
[17]
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:
‘
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.’
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:
1
The appeal is upheld and the action is
referred back to the high court for trial in accordance with the
provisions of this judgment.
2
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.
[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] ZASCA 49
;
2006
(4) SA 478
(SCA).
[5]
National
Union of Mineworkers and Others v Hartebeestfontein Gold Mining Co
Ltd
1986
(3) SA 53
(A) at 56G-57E.
[6]
Bane
v D’Ambrosi
2010
(2) SA 539
(SCA) para 7.
[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] ZACC 15
;
2002
(5) SA 721
(CC) paras 74-76 (hereafter
TAC
(No 2)
).
[10]
TAC
(No 2)
para
77.
[11]
As do the authors of the section on ‘Children’s Rights’
in
Constitutional
Law of South Africa
,
2
nd
ed (loose-leaf) section 47.3 (Revision service 07-09).
[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.
[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.
[16]
Fose
para
60.
[17]
Fose
para
58(b).
[18]
Rail
Commuters Action Group and Others v Transnet Ltd t/a Metrorail and
Others
[2004] ZACC 20
;
2005 (2) SA 359
(CC) para 81.
[19]
Mvumvu
and Others v Minister of Transport and Another
2011 (2) SA 473
(CC) para 49.