Exceptions to claim for ‘moral damages’:

13 Apr 2021 12:00 am by Merilyn Kader

In Trustees for the Time Being of the Burmilla Trust and Another v President of the Republic of South Africa and Another [2021] 1 All SA 578 (GP) the plaintiffs’ claim was for constitutional damages, said to arise from the drastic curtailment of jurisdiction and capacity (shuttering) of an international tribunal, before which the plaintiffs and others had a case pending against the Kingdom of Lesotho.

By Merilyn Rowena Kader LLB (Unisa), Legal Editor at LexisNexis South Africa.

Exceptions to claim for ‘moral damages’: In Trustees for the Time Being of the Burmilla Trust and Another v President of the Republic of South Africa and Another [2021] 1 All SA 578 (GP) the plaintiffs’ claim was for constitutional damages, said to arise from the drastic curtailment of jurisdiction and capacity (shuttering) of an international tribunal, before which the plaintiffs and others had a case pending against the Kingdom of Lesotho. Of the three claims set out in the amended particulars of the claim, the first was for loss of profits – a claim said to have been ceded to the first plaintiff (Burmilla). The second claim was said to have been suffered personally by the second plaintiff (Mr van Zyl) as ‘moral damages’ for humiliation and indignity caused by harassment and intimidation. The third was for the wasted costs incurred in cases in other fora, all of which were from the plaintiffs’ perspective ultimately unsuccessful, in an effort to prevent or reverse the shuttering or to have their claims against Lesotho heard in another forum.

Mr van Zyl was a South African who controlled various Lesotho companies.

The plaintiffs’ cause of action was that the South African government violated the plaintiffs’ rights through its conduct in relation to the Southern African Development Community Tribunal (the SADC Tribunal). In brief, the government was a party to a series of decisions of the Southern African Development Community (SADC), which sought to restrict the jurisdiction and reach of the SADC Tribunal, a body that the SADC had created. The intention behind those decisions was to render the SADC Tribunal unable to pronounce on a pending case before the SADC Tribunal brought by the plaintiffs and the Tributing Companies against Lesotho, as well as three other cases then pending before the SADC Tribunal.

The defendants raised 14 exceptions to the particulars of the claim. The court did not deal with all of them individually because there were certain issues of principle on which some of the exceptions had to be upheld and because the exceptions in some respects overlapped.

A question in this case was whether the law should recognise liability under the South African Constitution to pay monetary compensation to a non-South African national for acts committed by South Africa (SA) in breach of our Constitution and in violation of international law, outside our borders, which caused the economic loss, which was suffered outside our borders. The court, as per Tuchten J, held that morality, the convictions of the South African community and policy do not require that SA should be held liable to compensate a non-national where the South African government breached international law in circumstances such as the present. The plaintiffs’ particulars of the claim, therefore, did not establish legal causation, on the plaintiffs’ claim for monetary compensation. The exceptions to the claim for moral damages were upheld. The court also upheld three other exceptions but dismissed the remainder.

The plaintiffs were granted leave to amend their particulars of the claim.

  • Merilyn Rowena Kader
    Legal Editor at LexisNexis