V.S.M and Another v Minister of Police of the Government of the Republic of South Africa (68/2012) [2013] ZAGPPHC 201; 2013 (5) SA 622 (GNP) (3 July 2013)

V.S.M and Another v Minister of Police of the Government of the Republic of South Africa (68/2012) [2013] ZAGPPHC 201; 2013 (5) SA 622 (GNP) (3 July 2013)

The court finds that the right to family care or parental care under section 28(1)(b) of the Constitution is a constitutional right deserving of protection and enforcement. The Children’s Act provides a broader definition of care, encompassing more than financial support. South African law recognises constitutional damages as appropriate relief for infringement of constitutional rights. The Plaintiffs are entitled to claim constitutional damages on behalf of the minor children for the unlawful deprivation of their father’s parental care due to the proven unlawful conduct of the Defendant’s employees. However, the quantum of such damages requires evidence and is referred to trial. The...

Citation
[2013] ZAGPPHC 201
Parties
Plaintiff: V S M; Plaintiff: R L M; Defendant: Minister of Police of the Government of the Republic of South Africa
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
3 July 2013
Case Number
68/2012
Procedural Posture
Civil Trial / Merits and Right to Claim for Constitutional Damages; Quantum Referred to Trial
Outcome
Plaintiffs succeed in establishing the right to claim constitutional damages on behalf of the minor children for unlawful deprivation of parental care; quantum of damages to be determined at trial.
Judges
S P Mothle
Legal Topics
Section 28 Childrens Rights, Constitutional Damages, Loss of Parental Care, Appropriate Relief, Maintenance and Support, Children Act 38 of 2005
Constitutional Law Family and Children Delict Section 28 Childrens Rights Constitutional Damages Loss of Parental Care Appropriate Relief Maintenance and Support +1 more

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Parties

V S M

Plaintiff

R L M

Plaintiff

Minister of Police of the Government of the Republic of South Africa

Defendant

Procedural Posture

Civil Trial / Merits and Right to Claim for Constitutional Damages; Quantum Referred to Trial

Legal Issues

  1. 1 Whether a child whose parent has died as a result of unlawful conduct of a third party has a right to claim constitutional damages for infringement of the right to parental care under section 28(1)(b) of the Constitution.
  2. 2 Whether constitutional damages for loss of parental care are compensable in South African law, distinct from common law damages for loss of support.
  3. 3 Whether the Plaintiffs have established a legal basis for the claim for constitutional damages on behalf of the minor children.

Ratio Decidendi

The court finds that the right to family care or parental care under section 28(1)(b) of the Constitution is a constitutional right deserving of protection and enforcement. The Children’s Act provides a broader definition of care, encompassing more than financial support. South African law recognises constitutional damages as appropriate relief for infringement of constitutional rights. The Plaintiffs are entitled to claim constitutional damages on behalf of the minor children for the unlawful deprivation of their father’s parental care due to the proven unlawful conduct of the Defendant’s employees. However, the quantum of such damages requires evidence and is referred to trial. The...

Court Disposition

Plaintiffs succeed in establishing the right to claim constitutional damages on behalf of the minor children for unlawful deprivation of parental care; quantum of damages to be determined at trial.

Orders

  • The Plaintiffs’ right to claim for constitutional damages on behalf of the minor children of the deceased succeeds.
  • 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.