Constitutionally damaged: moving courageously beyond common law fictions

Barns, Shaun

Constitutionally damaged: moving courageously beyond common law fictions

Thesis / Dissertation

2026

Publisher

University of Cape Town

Department

Department of Private Law

Faculty

Faculty of Law

Abstract

The principle of subsidiarity is used as a device to co-ordinate different bodies or rules which compete to achieve the same goal. It is a principle which can take on many formulations depending on the context of its application. For this study, the focus will be on the principle of subsidiarity as applied to the different arms of government in South Africa and as used in private law remedies as applied in the public sphere, specifically vicarious liability in delict. These formulations of the principle of subsidiarity are known as institutional subsidiarity and substantive subsidiarity, respectively. Currently institutional subsidiarity in South Africa takes a very broad formulation and is seen as implicit in the Constitution of South Africa when applied to the local, provincial and national spheres of government. When discussed in terms of the three arms of government, namely, the legislature; the executive and the judiciary, institutional subsidiarity is discussed under the broad principle of separation of powers. This study seeks to provide a more specific understanding of the separation of powers by translating it into a spectrum between coordination and integrity. It will use examples of tools that courts currently use to co-ordinate and co-operate with other branches. It will also explain when the courts can act without cooperation with the other branches on the other end of the spectrum called integrity. The metaphorical spectrum is useful for the courts as it helps determine what tools are available to them to exercise their constitutional function and provides a link between their institutional purpose and the related rules of substantive subsidiarity. The primary focus of the study will be substantive subsidiarity and specifically the relationship between the common law and the Constitution. The study will use cases involving state vicarious liability in delict, specifically involving the South African Police Service, to show how the previous formulation of substantive subsidiarity has resulted in irreconcilable doctrinal errors in private law. Further, it will analyse recent cases regarding constitutional damages to show that clarity is required from the courts to ensure the future of a robust state liability doctrine in South Africa. A comparative analysis of state liability in England, France and Canada is undertaken to better understand the shortcomings within the South African legal system in this regard. Finally, building on the study of subsidiarity and comparative analysis, a new framework for hard cases within state liability is developed which clearly guides when vicarious liability in delict, direct state delictual liability, constitutional damages and any other damages are appropriate within the South African legal system.

Keywords

law

Reference:

Collections

PhD / Doctoral

Full item page