It is a general principle in our law that those who allege before a court that they are entitled to succeed in their claim bear the onus to prove their entitlement. In a recent case, the Supreme Court of Appeal, in awarding the Appellants “appropriate relief”, paid short shrift to this general principle, thereby creating a precedent that may have unintended consequences. 

Section 38 of the Constitution empowers a court to award “appropriate relief” where a right in the Bill of Rights has been violated. Accordingly, the courts have had to engage with the concept of “appropriate relief”, specifically whether such relief constitutes an appropriate remedy in the face of a violation of a constitutional right.

In Ngomane and Others v City of Johannesburg Metropolitan Municipality and Another [2019] ZASCA 57 (Ngomane), handed down on 3 April 2019, the Supreme Court of Appeal (SCA) awarded 27 homeless people (the Appellants) damages as “appropriate relief” for the violation of inter alia their constitutional right to dignity, without requiring the Appellants to prove the elements of a damages claim nor reasoning that the requirements thereof had been met. Ngomane is of relevance to organs of state who, by acting unconstitutionally, may potentially expose themselves to damages claims – the award, and quantum, of which may be determined with reference to only a court’s sense of justice.

In considering what constitutes “appropriate relief”, the Constitutional Court in Fose v Minister of Safety and Security (Fose) made it clear that courts are left to determine “appropriate relief” in the context of the particular case in question, and that such determination is confined to the facts thereof. The Constitutional Court further explained that “appropriate relief” will, in essence, be relief that is required to effectively protect, enforce and vindicate constitutional rights which have been contravened. Such relief has, thus far, been held to include: a declaration of rights, an interdict, a mandamus and constitutional damages. In addition, the Constitutional Court has noted that courts are further empowered, if necessary, to “forge new tools” and “shape innovative remedies” to achieve the goal of protecting, enforcing and vindicating constitutional rights.

In Ngomane the Appellants sought the return of their personal belongings and shelter materials, alternatively to be provided with similar shelter material and possessions, confiscated (and subsequently destroyed) by officials of the Johannesburg Metropolitan Police Department (JMPD) – acting under the instructions of the City of Johannesburg Metropolitan Municipality (the City) – from a road traffic island on which the Appellants lived pursuant to “a clean-up” operation conducted in terms of the City’s Public Health By-Laws.

In the High Court the Appellants contended that: the conduct of the JMPD constituted an eviction from their homes; they were entitled to invoke the mandament van spolie to vindicate their lost property; and several of their constitutional rights had been breached. The High Court, however, found against the Appellant’s, despite holding that the JMPD’s conduct in discarding the Appellants’ property “was a cynical and mean-spirited act deserving of censure.”

On appeal the SCA, through Maya P for a unanimous bench, agreed with the High Court’s findings in respect of the order the Appellants had sought before the court a quo. However, when considering the conduct of the JMPD the SCA found that it not only constituted a violation of the Appellants’ property rights but was also “disrespectful and demeaning” to the extent that it “obviously caused [the Appellants] distress and was [therefore] a breach of their right to have their inherent dignity respected and protected”. The SCA further found that the City’s conduct, through the JMPD, infringed the Appellants’ constitutional rights to privacy. Accordingly, the SCA held that the City’s conduct must be declared inconsistent with the Constitution and was therefore unlawful. The SCA further reasoned that its finding entitled the Appellants to “appropriate relief” for the violation of their rights as envisaged in s38 of the Constitution.

The SCA further noted that it was of no consequence that the Appellants sought to vindicate their constitutional rights for the first time before it as, although the Appellants sought only the return of their property, “a claimant in respect of a constitutional breach that has been established is not necessarily bound to the formulation of the relief originally sought or the manner in which it was presented or argued”.

In determining what would constitute “appropriate relief” in the circumstances, the SCA - relying loosely on the principles espoused in Fose - made it clear that the payment of R1,500 by the City to each Appellant as compensation for the wrong they had suffered, particularly in light of the Appellants’ indication of their willingness to accept such payment, in addition to a declaration that the destruction and confiscation of the Appellants’ property was unconstitutional and unlawful, constituted “appropriate relief” in the circumstances. This position was further supported by the SCA’s reasoning that an action for damages was not an appropriate remedy as instituting a damages claim would involve the Appellants in costly and time-consuming civil litigation in respect of property which was of objectively trifling commercial value.

In terms of Fose, courts have significant latitude and discretion to forge appropriate remedies for breaches of constitutional rights. However, what is notable about the decision in Ngomane is that the SCA did not set out any guiding principles which it relied on to arrive at the amount of R1,500, nor did it clearly set out why the Appellants were entitled to the amount, save for the fact that it would not be commercially viable for the Appellants to bring civil damages claims. The determination of the quantum of the “appropriate relief” was based purely on the Appellants’ assertion that this amount would vindicate their rights, without the Appellants having to justify the quantum thereof.

Whilst, on the facts, the financial obligation imposed on the City was minimal and the compensation to be paid appears to be eminently reasonable for the breaches in question, organs of state should be alert to the potential unintended consequences of this judgment, namely that an award of damages in such a manner may operate more like a penalty wherein the organ of state may be subjected to a significant court-ordered financial obligation without having had an opportunity to contest the appropriateness of the remedy nor the determination of the quantum thereof. This potential punitive effect may further be compounded in situations where there are many more claimants than in Ngomane, in which case the quantum of the “appropriate relief” could far exceed the cost order an organ of state would ordinarily have been subject to in similar circumstances.

Organs of state must thus be alive to the possibility that, in terms of Ngomane, they, pursuant to a contravention of a constitutional right, may be ordered to pay damages in proceedings where a claim for damages was not pleaded and the elements thereof have not been proved.