The Life Esidimeni arbitration and the actuarial quantification of constitutional damages

Abstract

In the instance of a claim for constitutional damages where an aggrieved party makes a claim against the State for damages resulting from its failure to uphold a constitutional imperative, how are such damages to be quantified? Under South African law there is no formula and extremely limited precedent outlining the calculation of constitutional damages. This paper will consider the Life Esidimeni Arbitration proceedings against the Gauteng Department of Health pursuant to the tragic mass death, torture and disappearance of mental health care users from the perspective of an actuary acting as an expert witness for the families of the deceased. There is no manual for calculating the monetary value of a life. Notwithstanding, this paper will set out the considerations made to reach monetary compensation as argued by the legal representatives of the families, as substantiated by the actuary and as eventually awarded by the Arbitrator.

Keywords: Constitutional damages; fairness; equity; comparative law; expert witness; unlawful death; torture; compensation; arbitration; life expectancy; net discount rate; pro bono