THE RIGHT OF THE CHILD TO CARE AND CONSTITUTIONAL DAMAGES FOR THE LOSS OF PARENTAL CARE: SOME THOUGHTS ON M v MINISTER OF POLICE AND MINISTER OF POLICE v MBOWENI

In the a quo judgment in M v Minister of Police a radical new approach was followed in respect of claims for loss of parental care. The issue before court was whether a child whose parent has died as a result of the wrongful conduct of the South African Police Services may sue for damages arising from the child's constitutional right to parental care in terms of section 28(1)(b). The question which the Court had to answer was whether a claim for damages may be instituted on the grounds that children are as a result of the wrongful death of their father deprived of their constitutionally entrenched right to parental care.


Introduction
The progressive nature of the South African Bill of Rights as enshrined in the Constitution of the Republic of South Africa, 1996 (hereafter "the Constitution" and "the Bill" respectively) propelled the country into the position of being a world leader in the sphere of fundamental rights.The Bill is hailed as a guiding light for legal development even in established human rights law dispensations.However, such a radical change as that which has taken place in South Africa inevitably leads to legal uncertainty. 1In the field of family and child law this has become evident not only with regard to aspects of the status of individuals wishing to enter marriage, 2 but also in the field of matrimonial property law, where marriage in community of property, on the basis of unfair discrimination, has been treated in in a fashion similar to marriage out of community of property and vice versa. 3 further, though short-lived, development has recently occurred in the judgment of M v Minister of Police 4 where the Gauteng North High Court substantially expounded the claim for damages for loss of parental care.It found that a child's claim following the wrongful death of his or her parent is not limited to the common law claim for loss of support but indeed extends to claims for constitutional damages since the notion of the right to parental care is entrenched in section 28(1)(b) of the Constitution. 5This extension of the claim of children was emphatically rejected by the Supreme Court of Appeal in Minister of Police v Mboweni. 6 This contribution reflects on the reasoning of the two courts and the relevance of the same for the debate regarding the care of children in terms of section 28(1)(b) of the Constitution and section 1 of the Children's Act 38 of 2005 7 (hereafter "the Children's Act").Furthermore, brief reference will be made to the best interest of the child as reflected in section 28(2) of the Constitution.While prima facie it would appear to be a primary concern, neither of the decisions refers to this right of children.

The question
In the a quo judgment in M v Minister of Police 8 (hereafter "M") a radical new approach was followed in respect of claims for the loss of parental care.The issue before the court was whether or not a child whose parent had died as a result of the wrongful conduct of the South African Police Services might sue for damages arising from the child's constitutional right to parental care in terms of section 28(1)(b).9Put somewhat differently, the question was whether a claim for damages may be  As the point of departure in the interpretation of the Constitution and the Children's Act, the Court explained that the duty of a parent to maintain his or her child no longer arises from common law but is now governed by the Children's Act. 10 The Court approvingly referred to Heystek v Heystek, 11 where the new position was explained as follows: The Constitutional notion of parental care and the paramountcy of the best interest of the child require an attitudinal shift from an antiquated Germanic parent and child relationship, which formed the substratum of the common law, to the rights of the child, which includes parental care and family care.Common law needs to be aligned to serve the constitutional imperatives of the child in a heterogeneous society.
The Court in M found that the concept of loss of support had to be developed within the context of the rights of the child enshrined in the Constitution and the Children's Act. 12 In its common law context the concept is applied restrictively and relates only to what is currently contained in section 1(a) of the Children's Act; it relates almost exclusively to the extent of the contribution to defraying day-to-day living expenses (nutrition, medical care and accommodation). 13The other aspects are "almost always not considered or included in the award for damages arising out of a child's loss of support". 14The Court concluded that child care is widely defined in the Constitution and the Children's Act and that payment for the loss of support at common law is only a part of the care envisaged in the Children's Act.The Court illuminated its argument as follows, in paragraph [22]: In my view ... the content of the right to parental care goes further than just the need for financial support.From the time of the birth of a child there are numerous duties which parents have to perform and where money is not a factor.These would include teaching the child to eat, to put on clothes, to tie shoes, to use ablution facilities, to walk, to talk, to respect, to express appreciation, to do homework and perform house chores, and to be present and supportive of the child during his/her participation in sport and art activities.The list is endless and no attempt is made here to create a numerus clausus.These parental care duties are performed to assist the child in preparing for life's challenges.They could be referred to as parental guidance, advice, assistance, responsibility, or simply parenting or child nurturing.The Minister's contention that compensation for a child's loss of support included an award for loss of parental care was rejected by the Court on the basis that "[i]t is not one of those instances where the common law can be developed as stated in the Fosé case". 15The Court found support for its conclusion in section 15(2)(a) of the Children's Act.This section provides that a child who is affected by or involved in a matter to be adjudicated has the right to approach a competent court and allege that a right in terms of the Bill or the Children's Act has been infringed or threatened, upon which the Court may grant appropriate relief.However, the Court also found itself in agreement with Jooste v Botha 16 that an action for damages arising out of section 8 of the Constitution will not be based on the child's deprivation of parental love and affection.This conclusion is based on the interpretation of the Children's Act, which does not make reference to a need to show love and affection to the child as one of the duties that a parent must perform. 17 Fosé v Minister of Safety and Security 1997 3 SA 786 (CC).In this case the defendent was sued for damages arising out of a series of assaults allegedly perpetrated by members of the SA Police Services.It was alleged that this conduct constituted an infringement of the fundamental rights of the plaintiff.An amount was also claimed under the heading "constitutional damages ... which includes an element of punitive damages".The defendent excepted to the claim on the grounds that an action for constitutional damages did not exist in law and that an order for the payment of such damages did not quailify as "appropriate relief" in terms of s7(4)(a) of the interim Constitution (Constitution of the Republic of South Africa Act 200 of 1993). 16 Jooste v Botha 2000 2 SA 199 (T).The court explained the position thus: "But not only in its relationship between a man and woman is marriage unique, so are the multiple relationships that flow from such union -mother father and child: and children mutually.There evolves a bond of kindship -blood is thicker than water -which society expects the parents, children and siblings to honour.But it does not grant rights to and impose concomitant obligations upon the parties except in the economic sphere."Jooste v Botha 2000 2 SA 199 (T) 206E-F.

Some conclusions to be drawn from M
The exposition above makes it clear that in the case of a child claiming for the loss of parental care there are three different categories of damages, being: damages for which a child still does not have a claim as per the acceptance of Jooste v Botha; damages as allowed at common law; and constitutional damages qua appropriate relief.
In paragraph 2.4 infra the appropriateness of constitutional damages under these circumstances will be discussed.

A new category of damages -constitutional damages
By way of introduction to the Court's explanation, reference should be made, albeit only briefly, to the concept of "appropriate relief" as set out by section 38 of the grant resulted in the denial of such a person's right to social assistance, which constituted a breach of her constitutional right.Under these circumstances the Court found that an award for constitutional damages was the most appropriate remedy.
It is clear not only that constitutional damages are recognised as part of South African law, but also that any party whose constitutional rights have been infringed may seek a remedy under the rubric "appropriate relief".In fact, in Fosé the Court held that, if necessary, courts may have to fashion new remedies to secure the protection and enforcement of constitutional rights. 21However, it has always been made clear that awarding constitutional damages would be considered as an exceptional remedy, since the concept is fraught with difficulties.Currie and De Waal points out that constitutional remedies should be forward-looking, communityorientated and structural. 22An award for damages in common law is typically not forward-looking but rather requires a court to look back to the past in order to determine how to compensate a victim or how to punish a violator.
Furthermore, in Steenkamp v Provincial Tender Board, Eastern Cape 23 the Constitutional Court explained that the breach of a constitutional or statutory duty is not wrongful solely on the basis of delict.In addition it must be in the court's appreciation of the community's sense of justice reasonable to compensate the plaintiff, for instance where an administrative decision was taken in bad faith or under corrupt circumstances.However, despite these difficulties Currie and De Waal contend that there are at least two reasons why the development of such a remedy is necessary. 24In the first place there are certain circumstances where a declaration of invalidity or an interdict would make little sense so that an order for damages would then be the only form of relief to vindicate the particular fundamental right.
Secondly, the possibility of a substantial award may encourage victims to litigate.In this sense the Constitution is vindicated and further infringements may be deterred. 25ivate law actions for damages aim to compensate a victim for harm caused to him or her by the wrongful conduct of another.An action for constitutional damages qua public law action has other objectives in addition to compensation.In particular circumstances it may be that delictual damages may be sufficient to vindicate a plaintiff's constitutional rights.In Fosé the Court was not persuaded that punitive damages would effectively deter the police from torturing suspects.It found that in a country where there is a great demand for scarce resources, it would be inappropriate to use them to pay punitive damages to a plaintiff who had already been compensated by way of delictual damages.The following principles emerged from the decision: -In a situation where the violation of a constitutional right entails the commission of a delict, an award for damages over and above those available under common law is not likely to be granted since it will amount to punitive damages.
-Even where delictual damages are not available, constitutional damages will not necessarily be awarded for a violation of a person's fundamental rights.
This much emerged from the Court's reserved attitude towards the granting of an award for constitutional damages.It found that a declaratory order combined with a suitable order for costs would be sufficient to vindicate the right if no other remedy was appropriate.
Also, in Government of the Republic of South Africa v Von Abo 26 it was held that a plaintiff would at least have to show that there was a causal connection between his or her loss and the breach of a constitutional right.Constitution.This unqualified award of an order for constitutional damages is problematic, as will be explained in paragraph 2.5 infra.Equally obvious is the Court's omitting to refer to the best interests of the children.This is remarkable in view of the fact that their care is directly related to their best interests.This aspect will be addressed in paragraph 3 infra.

Children's Act
In M the Court specifically focused its decision on parental care, which "[i]n general includes a show of love and affection by the parent to the child". 27The Court should therefore have distinguished parental care from the other forms of care referred to in section 28(1)(b).It failed to do so, unfortunately, and awarded constitutional damages without any such differentiation.It is suggested that this omission bears testimony to an impoverished view of the nature of the care exercised by the respective bearers of care set out in section 28(1)(b).
While parental or family care is "exercised" in the family as an institution qualified by love, 28 the same cannot be said of "appropriate alternative care", which will normally be provided by an organ of State.While it is trite that organs of State are bound to protect and further the best interests of children, the same does not hold true for parents and the family of a child.This distinction is of particular importance: should an alternative care-giver fail to provide the child with one or more of the aspects identified by the Court, the child surely would be able to approach a court on the basis of the State's non-compliance with its statutory obligation to treat the child's best interests as a paramount consideration.
PER / PELJ 2015(18)5 1679 However, should the parent or family fail to provide care for the child as set out in the Act, different questions arise.This interpretation stems from the fact that each family-or parent-child relationship is unique.As a consequence it is not possible to frame generally applicable legal prescripts to apply to all families generally.It is suggested that the incidents set out in section 1(a) of the Children's Act, as elaborated by the Court, are qualified by love in the parent-or family-child relationship.On the other hand, organs of State are duty bound by statute to perform these tasks.The child's right to the incidents of care espoused in section 1(a) and his or her best interests must be treated differently in the parent-child and state-child relationships respectively.This difference has a direct impact on the claim for damages for the infringement of the child's right to care.
Reference may be made to German law to illustrate the difference between care by organs of State and parents.Contrary to parents, who are primary care-givers, alternative care is exercised by secondary care-givers.The role of the State consequently is of an accessory nature. 29In essence it is accepted that parents are the primary care-givers of their children and that the parent-child relationship is of a delicate and interwoven nature.It is the duty of the State to respect and protect it: [D]ie Eltern haben das Recht die Pflege und Erziehung ihrer Kinder nach ihren eigenen Vorstellungen frei zu gestalten, und geniessen insoweit ... Vorrang vor anderen Erziehungsträgern. 30e delicate nature of the relationship would accordingly be disturbed if it were to be seen as a legal relationship characterized by reciprocal rights and duties or as one determined by statutory provisions, the primary remedy for infringement of which is of a legal nature.The accessory role of the State requires of it to provide measures and means to assist parents to fulfill their responsibilities towards their children.From this brief exposition it emerges that: the nature of the care provided by parents/family differs essentially from that of organs of State.Parental care constitutes the primary care of a child and is of a treuhand nature, whereas care provided by organs of State is accessory and is often determined by statutory prescripts; parents are primary care-givers while the State's duty to care for children is merely of an accessory nature; and the nature of the relationship determines whether the best interests of a child apply within the relationship -if parents were to be kept liable on issues of good or better ("Fragen von gut oder besser"), this would simply mean that the relationship would be disturbed, as children would then be in a position to enforce their own best interest against their parents, even in matters of lesser importance.It is suggested that it cannot be denied that the position of the parents determines the milieu within which the wellbeing of the child needs to be established.
It is suggested that the Court should have reflected more closely on the question of the identity of the party which is bound to provide the child with care for the purposes of awarding constitutional damages.If it is accepted that the right of the child to institute legal action to claim damages against its parent or family is limited by the very nature of the relationship, it goes without saying that the possibility of claims for constitutional damages will also be limited.On the other hand, the position is different where the claim is against an organ of State as the provider of "alternative care".In this instance the claim for lack of care will be based on an infringement of statutory duties.In this instance the nature of the relationship will not pose any limitations on the claim, and the child's best interests will prevail.

Minister of Police v Mboweni
The decision in M was emphatically overturned in a unanimous judgment by the Supreme Court of Appeal in Minister of Police v Mboweni 32 (hereafter Mboweni).
Pointing out that upholding the a quo judgment would "break new ground" and would have "far-reaching ramifications", 33 the Court first dealt with procedural issues.
The appeal came before the Court on the basis of a special case/statement of facts "[a]s if there was a clear-cut issue of law capable of resolution with the barest minimum of factual matter being placed before the court". 34This was an error, the The Supreme Court of Appeal found that the statement of facts prepared by the parties did not comply with the of the rules, in that it neither set out the facts that were to serve as the basis for the proposed legal argument, nor did it define the question of law the Court was being asked to determine. 35The Court emphasized that a special case must set out agreed facts, not assumptions.With regard to the claims of the two children, virtually no detail was provided save for a bold statement that the deceased had provided them with parental care.On that basis it was accepted by the parties that they were entitled to constitutional damages: they had been deprived of their biological father and therefore also of their constitutional right in terms of section 28(1)(b) of the Constitution.
The Court then proceeded to provide an exposition of the nature of the right of children in terms of the provision, as follows: The right is couched in the alternative, not as three separate and distinct rights.
Children have a right to family care or parental care or appropriate alternative care.
The third of these, which presupposes the absence of the first two, demonstrates that there are alternative ways of ensuring the fulfillment of the right generally embodied in the section.The right is thus a right that the child will be cared for, that can be fulfilled in different ways.That at least raises the possibility that the right is satisfied if any one of those alternatives exists as a matter of fact.... The fact that section 28(1)(b) expresses the right that it embodies in three alternatives, demanded that in the first instance there be a proper analysis of the different elements of the right and, in particular, the relationship between the right to family care and the right to parental care.(italics added) 36 The proper approach to the three alternatives, the Court held, is to ensure that children are properly cared for by their parents or families and that they receive appropriate alternative care if such is lacking.It concluded therefore that at least PER / PELJ 2015(18)5 1683 superficially the child's rights to care, as guaranteed by the section, are fulfilled if he or she is cared for by any one of those identified or at least that one of those responsible for that care indeed provides it. 37e Court proceeded to illustrate the importance of having a comprehensive exposition of the facts for the purposes of Rule 33 by posing rhetorical questions. 38 the first instance, what would the position have been if the family unit had been disrupted by the death of a parent and the child was thereafter cared for by the surviving parent; and furthermore whether it could be said that there was no infringement of the child's right because it was being fulfilled in a different way.In addition, was the right partly infringed because there was an element of deprivation in the sense that both parents were not participating in the life of the child any more, but only one parent was now carrying the total burden of the care of the The Court pointed out that the court below had not considered whether a claim for damages for the loss of support was an appropriate remedy in this case.The court a qua should first have considered the adequacy of the existing remedy and only if it was found to be inadequate should it have considered whether the deficiency could be remedied.Such a remedy would be the development of the common law to accommodate a claim more extensive than one for pecuniary loss.In fact, the Court found that the infringement of constitutional rights may often be appropriately vindicated resorting to public law remedies. 46ainst this background the Court referred to Fosé to consider the nature of losses that may be compensated, 47 and found that it was a claim for pecuniary loss of the type ordinarily recoverable by way of the Aquilian action.It was not a claim for a solatium or for general damages.

Some general comments and a conclusion
It is suggested that the Court in Mboweni quite correctly indicated that the right to care, contained in s 28(1)(b), is couched in the alternative.However, it is a pity that the Court did not elaborate on the relevance of the identity of the bearer of the obligation to provide such care.
As explained above, this issue will determine whether the child can enforce his/her rights, including his/her best interests, within the relationship, and consequently whether damages may be claimed for the infringement of such rights.If a child cannot claim such damages because he or she has to endure minor infringements thereof, the very nature of the relationship militates against the awarding of damages if an infringement of such rights has taken place.On the other hand, if the infringement is in contradiction of an organ of State's statutory duty, no such limitation exists, and a child would be able to claim damages for such an infringement.

46
Law Society of South Africa v Minister of Transport 2011 1 SA 400 (CC) para 22.
Children's Act".8 M v Minister of Police 2013 5 SA 622 (GNP).PER / PELJ 2015(18)5 1672 instituted on the grounds that children are, as a result of the wrongful death of their father, deprived of their constitutionally entrenched right to parental care.No such claim exists in common law.2.2The judgment -compensation for loss of parental careSection 28(1)(b) of the Constitution provides as follows:(1) Every child has the right -(a) … (b) to family care or parental care, or to appropriate alternative care when removed from the family environment; … of Police 2013 5 SA 622 (GNP) para 43. 13 M v Minister of Police 2013 5 SA 622 (GNP) para 44.The right to parental care qua a constitutionally entrenched right consequently deserves constitutional protection and enforcement.Damages for the infringement of this right should be compensated by means of the constitutional remedy of appropriate relief.

21Fosév
Minister of Safety and Security 1997 3 SA 786 (CC) para 19.22 Currie and De Waal Bill of Rights Handbook 200 et seq.23 Steenkamp v Provincial Tender Board, Eastern Cape 2007 3 SA 121 (CC).
The unqualified awarding of constitutional damages by the Court in M, despite the Constitutional Court and Supreme Court of Appeal repeatedly sounding a cautious 25 Currie and De Waal Bill of Rights Handbook 201.note about this type of award, indicates a definite inclination to develop new remedies to compensate children.As such, it reflects a liberal view of the interpretation of a child's right to care as set out in the Children's Act and the Court found.In fact in Fosé and Kate, the only two cases in which constitutional damages were awarded, the Courts had been appraised of the facts on which the claims were based.In casu, no facts dealing with the issue of the loss of parental 32 Minister of Police v Mboweni 2014 6 SA 256 (SCA).33 Minister of Police v Mboweni 2014 6 SA 256 (SCA) para 4.PER / PELJ 2015(18)5 1682 care were placed before the Court.In terms of Rule 33, which deals with statements of facts/special cases, the question of a remedy can arise only after the relevant right has been properly identified and the pleaded or admitted facts show that the right has been infringed.To start with the appropriateness of the remedy is to invert the inquiry, which is what had occurred in the a quo decision.
child? in connection with the second major issue, the Court posed the question what the position would be if the parents were separated and one parent provided the child's day-to-day care and the other parent died.Would that constitute a deprivation of parental care or had the separation of the father and the mother already done so?In casu the Court explained that it did not have a clear picture of the de facto relationship between the deceased and his two daughters (the plaintiffs).39A further issue addressed by the Court related to the question whether, even if the children had been deprived of the care of their father, a right to claim damages had been established.40Did the police's failure to safeguard the deceased while in custody constitute a wrongful act in relation to the children?In order to answer this question, clarity had first be had as to whether the right operated horizontally in terms of section 8(2) of the Constitution so as to extend to the policemen in casu or, in case it did not, whether the position of state employees was different in view of section 8(1) of the Constitution.What was required was to establish whether the 37 Minister of Police v Mboweni 2014 6 SA 256 (SCA) para 11. 38 Minister of Police v Mboweni 2014 6 SA 256 (SCA) para 12. Law Society of South Africa v Minister of Transport 2011 1 SA 400 (CC) para 21.Also see Dikoko v Mokhatla 2006 6 SA 235 (CC).
Section 1 of the Children's Act elaborates on the concept of care by providing as This was due to its occupation by squatters and the impossibility of evicting them due to the State's failing to arrange for alternative land to accommodate them.
Constitution.It provides that anyone listed in the section (including children) has the right to approach a court alleging that a right in the Bill has been infringed, and that the Court may then grant appropriate relief.In Fosé v Minister of Safety and Security 18 the Constitutional Court held that appropriate relief may include an award for damages where such an award may be necessary to enforce constitutionally entrenched rights.In Modderfontein Squatters, Greater Benoni City Council v Modderklip Boerdery (Pty) Ltd 19 (hereafter Modderklip) and also MEC, Department of Welfare, Eastern Cape v Kate 20 (hereafter Kate) the Supreme Court of Appeal confirmed the concept of constitutional damages.In Modderklip a claim for damages by a landowner was granted against the State after he had lost ownership of his land.19 Modderfontein Squatters, Greater Benoni City Council v Modderklip Boerdery (Pty) Ltd 2004 6 SA 40 (SCA).