Constitutional Law 271 Bill of Rights Litigation
C: Remedy Stage
REMEDY STAGE - S 172
Get to this stage when court finds that limitation = UNJUSTIFIABLE
Declarations of invalidity confirmed by Con Court
o CC confirms order & may vary remedy granted by lower court
REMEDIES
Direct application of BOR (mostly in a vertical relationship:
S172(1)(a) -
172. (1) When deciding a constitutional matter within its power, a
court—
(a) must declare that any law or conduct that is inconsistent with
the Constitution
is invalid to the extent of its inconsistency
No discretion to declare invalid when found that violation is not justifiable =
MUST declare inconsistent w/ CT
REMEDY: DECLARATION OF INVALIDITY
Declaration of invalidity not always enough!!
o Need to remedy the harm that may have occurred / remedy the defect
causing the harm
o S172(1)(b) - (b) Court may make any order that is just and
equitable [to correct the defect]
including—
(i) an order limiting the retrospective effect of the declaration
of invalidity;
and
(ii) an order suspending the declaration of invalidity for any
period and on
any conditions
o S38 -
38. Anyone listed in this section has the right to approach a
competent court, alleging that a right in the Bill of Rights has
been infringed or threatened, and the court may grant
appropriate relief, including a declaration of rights
o Grants power to the court to craft & grant a remedy
In South Africa:
o Flexible approach to granting remedies
o Fose v Minister of SS:
Left to the court to decide what would be appropriate relief in any
particular case - relief that is required to protect & enforce the
Constitution - if necessary, court may have to fashion new
remedies to secure protection & enforcement of these important
rights
o = BROAD discretionary power to decide what "appropriate relief"
, o What limits court's ability to fashion new remedies?
SEPARATION OF POWERS CONCERNS!
Not court's responsibility to make & execute laws
Private violation of fundamental rights - S8(2):
Direct horizontal application of BOR
If acc to nature of right & nature, private person can violate right(s) of
another private person
S8(3):
(3) When applying a provision of the Bill of Rights to a natural or
juristic person in terms of subsection (2), a court—
(a) in order to give effect to a right in the Bill, must apply, or if
necessary develop, the common law to the extent that
legislation does not give effect to that
right; and
(b) may develop rules of the common law to limit the right,
provided that the
limitation is in accordance with section 36(1).
REMEDY: NOT IN LEGISLATION < DEVELOPMENT OF COMMON LAW
o When done so - have regard to S39(2) - spirit, purport & object of BOR
o Court keep in mind - not engine of law = incremental development
Indirect application:
Relief ito interpretation of legislation / development of common- or
customary law
REMEDY: READING DOWN
o Mandatory rule of statutory interpretation - attempt to avoid declaration
of invalidity - use BOR to bring law in line with the Constitution =
INDIRECT APPLICATION
o May be done so if legislative provision is reasonably capable of being
interpreted in conformity with the Constitution
Purpose of Constitutional Remedies
Vindicate constitutional rights & the Constitution; and deter future infringements
by the Legislature or private parties
Ideal construct of a constitutional world: Adherence to fundamental
democratic values based on human dignity, equality & freedom
Want to synchronize real world where violations occur with this ideal
Factors relevant in considering appropriate remedy
o Constitutional remedies must generally be:
Forward-looking (to achieve aim of a democratic society)
Community-orientated
Harm usually suffered by a whole community of people when
rights are violated
Remedy crafted to protect entire community > individualistic
approach to remedy
Structural
Tries to correct constitutional structure
Structure as envisaged by the constitution
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