South African law recognizes the common law right of the plaintiff to institute a claim for damages arising from loss caused by the delictual conduct of the defendant. In addition to the claim for common law damages for pain and suffering, insult, shock, past and future medical expenses, and loss of enjoyment of the amenities of life, depending on the nature of the delict, the plaintiff also has the right to claim constitutional damages for the infringement of constitutional rights. On that score, the South African Constitution, 1996 empowers the courts to ‘grant appropriate relief’ and to make ‘just and equitable’ orders in the context of common law and constitutional damages. This has resulted in the duplicity of damages in our law without clear guidance on how these two delictual “fellows” should interact in practical scenarios. Further, the courts have dragged their feet when it comes to the application of constitutional damages largely due to their orthodox approach which militates against the development of constitutional damages in South Africa. This article proposes avenues which enable the courts to take a coordinated approach in the application of these two remedies. It argues that in determining quantum for damages, the court should take a functional and pragmatic approach which is based on the ethos of fairness and equity over and above common law tenets.
The Protection from Harassment Act 17 of 2011 (the Act) seeks to protect victims of harassment. Despite this legislative development, the effectiveness of the Act has not been widely explored. This article fills this cavity. It argues that the broadly drafted definition of harassment, together with other concomitant shortcomings in the Act, makes it prone to abuse by unscrupulous litigants, thereby militating against its regulatory efficiency goals. The article further maintains that the Act is constructed in an unbalanced manner as it protects the rights of complainants, but unintentionally is open to abuse, allowing, unfathomably, an alleged victim of harassment to become the harasser. The article analyses the regulatory aptness of the Act in an age marked by an exponential increase in cyber-related harassment and makes a case for enhancing the regulatory approach of the Act to offer an effective means of protecting victims of harassment in a rapidly evolving society.
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