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 the SCA judgement in case of fose v Minister of Safety and Security
In the case of Fose v Minister of Safety and Security, the Supreme Court of Appeal (SCA) held that a claim for constitutional damages can be brought in addition to delictual damages for violations of fundamental human rights. In this case, the plaintiff, Fose, was unlawfully arrested and detained, during which he was subjected to assault and torture.
The SCA found that Fose's constitutional rights to dignity and security were indeed violated, and therefore he was entitled to constitutional damages in addition to delictual damages. The court held that it was appropriate and just to award such damages to Fose in order to provide him with full redress for the violations of his rights.
In light of the Fose case, it is likely that A would succeed in claiming constitutional damages for the violation of his fundamental human rights, namely dignity and security, in addition to delictual damages for the assault and torture he suffered in SAPS custody. The courts are generally inclined to provide full redress for violations of constitutional rights, and the Fose case sets a precedent for awarding such damages in cases similar to A's.