1. A is allegedly assaulted and tortured in SAPS custody. In addition to delictual damages, A claims constitutional damages for the violation of his fundamental human rights, namely dignity and security. A contends that such relief would be “appropriate“ being “just and fair” as well. Will A succeed? Substantiate your answer with case law
In order for A to succeed in his claim for constitutional damages for the violation of his fundamental human rights, he would need to demonstrate that his rights were indeed violated and that such a violation warrants the awarding of constitutional damages.
In the case of Minister of Safety and Security v Carmichele [2001] ZACC 22, the South African Constitutional Court held that individuals are entitled to constitutional damages for the violation of their fundamental rights, in addition to any delictual damages they may be entitled to. The Court stated that constitutional damages serve the important function of vindicating the rights of individuals and deterring future violations of those rights.
Therefore, in A's case, if he is able to prove that his fundamental human rights, namely dignity and security, were violated in SAPS custody, he may be entitled to claim constitutional damages in addition to delictual damages. The court would need to assess the nature and extent of the violation, as well as the impact it had on A, in order to determine what amount of constitutional damages would be just and fair in the circumstances.
Overall, A may have a good chance of succeeding in his claim for constitutional damages, provided he is able to establish that his fundamental rights were indeed violated and that such relief would be appropriate in the circumstances.