Pakati v Housing Development Agency (21/50612) [2024] ZAGPJHC 234 (4 March 2024)

The case involves an exception raised by the defendant, the Housing Development Agency, against the plaintiff, an adult female employee of the defendant. The plaintiff instituted an action against the defendant on or shortly after 22 October 2021, alleging two claims: Claim A for delictual damages and Claim B for constitutional damages.

Claim A:
The plaintiff alleges that the defendant breached a common law duty to maintain a safe working environment, which resulted in her suffering emotional shock, trauma, and impaired mental health. The plaintiff claims that the defendant's employee, RI, acting within the scope of her employment, engaged in conduct that included sexually harassing the plaintiff, demanding sexual favours for job promotion, and gang raping the plaintiff. The plaintiff further alleges that during a board meeting on 23 October 2018, RI reported to the Board of Directors that the plaintiff had been sexually harassed and had sexual intercourse with senior executives in return for job promotion. As a result of this conduct, the plaintiff claims to have suffered emotional shock, trauma, impaired mental health, and financial loss, and seeks general damages of R5 million.

Claim B:
The plaintiff claims R2 million in constitutional damages, alleging that the defendant breached its constitutional duty to protect her from infringement of her constitutional rights, including the rights to dignity, freedom from violence, and not to be treated or punished in a cruel, inhumane, or degrading way. The plaintiff argues that the same set of facts underpin both Claim A and Claim B.

Defendant's Exceptions:
The defendant raised two exceptions:
 1. Claim A is precluded by section 35(1) of the Compensation for Occupational Injuries and Diseases Act (COIDA), which bars employees from claiming damages from their employer for occupational injuries arising out of or within the scope of their employment.
 2. Claim B for constitutional damages is inappropriate and not recognized in law because the plaintiff has a common law remedy available.

Relief Sought by Defendant:
The defendant seeks an order to uphold the exception, for the plaintiff to pay the costs of the exception, and for further and/or alternative relief.

Court's Analysis:
The court found that the applicability of COIDA to Claim A requires a detailed factual and legal analysis, which is inappropriate at the exception stage. Therefore, the exception to Claim A was dismissed.
Regarding Claim B, the court held that constitutional damages are generally not awarded in addition to common law damages arising from the same set of facts. The court upheld the exception to Claim B but allowed the plaintiff 20 days to amend her particulars of claim.

Order:
1. The exception to Claim A is dismissed.
2. The exception to Claim B is upheld.
3. The plaintiff is given 20 days to amend her particulars of claim.
4. The plaintiff is liable for the defendant's costs, excluding costs related to the exception to Claim A.

The ratio decidendi, or the core legal principle underlying the decision, in this case can be summarized as follows:

1. Exception to Claim A (Delictual Damages):
 The court held that the applicability of the Compensation for Occupational Injuries and Diseases Act (COIDA) to the plaintiff's claim for delictual damages requires a detailed factual and legal analysis. This analysis is inappropriate at the exception stage of the proceedings. Therefore, the court cannot determine at this stage whether the plaintiff's claim falls under COIDA and whether the defendant is exonerated from liability under COIDA. Consequently, the exception to Claim A was dismissed.

2. Exception to Claim B (Constitutional Damages):
 The court held that constitutional damages are generally not awarded in addition to common law damages arising from the same set of facts. The availability of a common law remedy typically precludes the need for constitutional damages unless the common law remedy is ineffective or inadequate. In this case, the plaintiff's claim for constitutional damages, in addition to common law damages, has no legal basis. Therefore, the exception to Claim B was upheld. However, the court allowed the plaintiff an opportunity to amend her particulars of claim to address the deficiencies.

These principles reflect the court's approach to the exceptions raised by the defendant, emphasizing the need for a detailed factual analysis for COIDA applicability and the general inadmissibility of concurrent claims for constitutional and common law damages based on the same facts.

The court relied on several key cases in its reasoning process. Here are the cases along with their neutral citations:

1. Churchill v Premier of Mpumalanga and Another 2021 (4) SA 422 (SCA)
 This case was referenced to underline that attacks on a person's dignity and bodily integrity are not incidental to their employment and thus may not fall under COIDA.

2. Member of the Executive Council for the Department of Health, Free State Province v EJN [2015] 1 All SA 20 (SCA)
This case highlighted that restricting employees to COIDA for injuries such as rape would be adverse to their interests and not countenanced by the Constitution.

3. Fose v Minister of Safety and Security 1997 (1) SA 786 (CC)
 The court relied on this case to discuss the principles surrounding the award of constitutional damages, particularly the notion that punitive constitutional damages are generally inappropriate.

4. Minister of Police v Mboweni 2014 (6) SA 256 (SCA)
This case was used to illustrate that the availability of a delictual remedy generally precludes the need for constitutional damages.

5. Komape and Others v Minister of Basic Education and Others [2019] ZASCA 192
The court referenced this case to support the principle that additional constitutional damages are not warranted when general damages have already been awarded for the same breach.

6. Residents of Industry House and Others v Minister of Police and Others  [2021] ZACC 37
 This case was cited to outline the general principles concerning claims for constitutional damages, emphasising that such damages are seldom available when a common law remedy is adequate.

7. President of the Republic of South Africa v Modderklip Boerdery (Pty) Ltd 2005 (5) SA 3 (CC)
 This case was referenced to show that constitutional damages may be awarded when they are the most effective remedy, even if a delictual remedy is available.

8. Member of the Executive Council: Welfare v Kate 2006 (4) SA 478 (SCA)
 The court used this case to discuss the appropriateness of awarding monetary damages for a constitutional breach, emphasizing a casuistic approach.

9. Thubakgale and Others v Ekurhuleni Metropolitan Municipality and Others [2021] ZACC 45
This case was mentioned to highlight that constitutional damages are not available when there are adequate alternative remedies provided by legislation.