Mungo Soggot
A man who claims he was a victim of police torture will seek a place in South African legal history when he applies to the Constitutional Court next month for R200 000 in damages for the police’s invasion of his constitutional rights.
Ntandazeli Fose says he was tortured by members of the Vanderbijlpark Riot and Related Crimes Investigation Unit on May 2 and 3 1994. He says the police punched and kicked his face, electrically shocked various parts of his body, tied him to a chair with a rope and hit him on the back with an object resembling an empty bottle.
Apart from the legal first of asking the court to make the state pay for breaching constitutional rights, the challenge is noteworthy because Fose’s lawyers are effectively asking the court to punish the state with the extra damages award.
Fose took Safety and Security Minister Sydney Mufamadi to court last year for R130 000 in damages for his suffering, his loss of enjoyment of life and past and future medical expenses.
He also asked for R200 000 in damages for the violation of his constitutional rights. Judge Rex van Schalkwyk rejected this damages claim, but agreed to pass the matter on to the Constitutional Court which will hear the case on September 10.
The claim includes an element of punitive damages, say Fose’s lawyers. They argue the police invaded Fose’s rights to human dignity and privacy, among others. They charge the police have treated others in the same way.
Mufamadi’s legal team contends that the Constitution does not include a specific damages remedy for an invasion of constitutional rights. They also contend it is inappropriate to award damages in addition to those awarded by ordinary courts in terms of civil law.
His lawyers claim the common law protects the same rights as the Constitution does. So there is no point in granting additional damages.
Fose insists the matter cannot be left entirely to the common law which, unlike the Constitution, does not treat torture separately from assault. Assault does not involve the state.
His team argues the award of damages for breach of constitutional rights would “vindicate the importance of the constitutional guarantees prohibiting torture, deter the police from more torture and punish the state and its organs for this abuse of power”.