CONSTITUTIONAL DAMAGES: A CALL FOR THE DEVELOPMENT OF A FRAMEWORK IN SOUTH AFRICA

Shaun Barns

Abstract


This paper explores whether the positive duties placed on the state by the Constitution of South Africa,1 particularly the South African Police Service (hereinafter „SAPS‟), are adequately represented by the doctrine of vicarious liability. The doctrine was developed in a private law setting and since the inception of the Constitution it has been stretched to vindicate the Bill of Rights. This stretching has resulted in a number of tears in the law‟s fabric and the best solution which comes to mind is to patch the tears with the doctrine of constitutional damages.

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