Whether a child can claim compensation for the loss of love and affection from a parent, was just one of the questions that the court had to consider in the matter of M and Another v Minister of Police 2013 (5) SA 622 (GNP).
The deceased, the biological father of the Plaintiffs’ two minor children, was detained by the South African Police Service for suspected theft.  He was viciously attacked by 19 other inmates and subsequently died as a result of his injuries. 
The Plaintiffs instituted action on behalf of the deceased’s biological children for loss of support as provided for in the common law, as well as constitutional damages on the basis that the children have been deprived of their right to parental and family care as enshrined in section 28 of the Constitution.  The claim for loss of support had become settled between the parties and the only issue to be decided was the children’s’ right to constitutional damages based on the unlawful death of their father.  The defendant contended that there is no scope for the recognition of constitutional damages with regard to the unlawful death of a parent as ample compensation is provided for in terms of the common law. 

Section 28(1)(b) of the Constitution provides that every child has the right to family or parental care.  It does not, however, contain a definition of the said right.  As such, the court referred to the wide definition of “care” in the Children’s Act 38 of 2005 (“the Act”), which includes both the financial aspects involved in caring for a child (such as education, medical treatment, food, accommodation and clothes), as well as the non-pecuniary aspects thereof.  The court held that a child’s right to parental or family care is thus no longer restricted to the financial aspect of maintenance or support (as was the case in the common law) but now also includes the non-pecuniary  aspects of “. . . parental guidance, advice, assistance, responsibility, or simply parenting or child nurturing”.

The court opined that although the common law remedy for loss of support adequately compensates a child with regard to the financial aspects of his / her maintenance, it does not allow for compensation payable in respect of the non-pecuniary aspects of parenting.  Both section 38 of the Constitution and section 15 of the Act provide that a court may grant “appropriate relief” in the event that a right enshrined in the Constitution (such as the right to family or parental care) is infringed, which relief may include an award for constitutional damages in respect of losses suffered by the affected party as a result of the unlawful infringement. 

The court therefore acknowledged a child’s right to claim constitutional damages but it held that a child cannot claim for loss of parental care separate from loss of support (as the latter forms part of the former and such separate action would lead to a duplication of actions and undue enrichment).  The court further held that, although parental care generally includes a show of love and affection, the definition of “care” in the Act does not refer thereto and therefore does not create a duty on a parent to show love and affection to a child.  The court concluded that a claim for constitutional damages can therefore not include losses suffered as a result of the deprivation of a parent’s love and affection.

With regard to the manner in which constitutional damages should be quantified, the court referred to the approach taken in foreign jurisdictions.  In Canada, for example, courts have calculated these damages based on the cost of substitutes, such as a housekeeper or a nanny.  The US courts, however, measure the value of parental nurture by considering the impact a parent’s nurturing would have had on the future monetary success of a child. 

The court shied away from making any definitive findings as to the basis of calculation of a claim for the non-pecuniary aspects of parenting and held that each case should be considered on its own merits.  Factors to be taken into account include the child’s age at the time of the parent’s demise, the nature of their relationship, the role the parent played in the child’s development, time spent together and the general contribution of the deceased in the child’s upbringing.  The court referred the matter of quantification of damages to trial for further adjudication.

This matter was decided in the North Gauteng Division of the High Court and, as according to the principle of stare decisis, only has persuasive power with regard to other jurisdictions.  It has opened the door to change the basis of a child’s claim, for losses suffered due to the unlawful death of a parent, to no longer be found in the common law, but rather on statute.  Said claim would have to be pleaded on the provisions of the Constitution and the Act. 

The scope of damages that a child could claim may have been increased to include non-pecuniary losses.  As such, an increase in the quantum of damages claimed and awarded may be anticipated.  Claims for constitutional damages may not be restricted to the death of biological parents and may extend to the death of any person on whom a duty to provide parental care falls.  Such persons, it was held in Heystek v Heystek 2002 (2) SA 754 (T), may include step parents, adoptive parents and foster parents.

Quantification of these claims will not be without difficulty, particularly with regard to the child’s non-pecuniary losses, and it is yet to be seen what approach our courts will take to calculate these damages.

Written by Annelize Hefer, Associate at Markram Inc Attorneys (LLB (UP), Certificate in Medical Law (UNISA))