Summary Constitutional Law 271 Part 2C (2023)

2. Bill of Rights Litigation:



(C): Remedy Stage
 S172 Constitution

Introduction:
- Get to this stage when court finds that limitation = unjustifiable
- Declarations of invalidity confirmed by CC
o Confirms order & may vary remedy granted by lower court

Remedies:
- Direct application of BOR
o Most in a vertical relationship
- S172(1)(a):
o When deciding a constitutional matter, a court
 (a) must declare that any law or conduct that is inconsistent with
the constitution as invalid to the extent of its inconsistency
o Remedy: Declaration of invalidity
o No discretion when found that violation cannot be justified
- Declaration of invalidity not always enough
- Need to remedy harm that may have occurred / remedy defect causing harm
- S172(b):
o Court may make an order that is just and equitable including
 (i) An order limiting the retrospective effect of the declaration of
invalidity
 (ii) An order suspending the declaration of invalidity for any
period and on any conditions
- S38:
o Anyone listed in this section has the right to approach a competent
court, alleging that a right in the BOR has been infringed or threatened,
and the court may grant appropriate relief, including a declaration of
rights

In SA: Flexible approach to granting remedies
- Fose v MSS:
o Left to court to decide what would be appropriate relief
  relief that is required to protect and enforce the CT; if
necessary, court may have to fashion new remedies to secure
protection and enforcement of these NB rights
 = BROAD discretionary power to decide “appropriate relief”
- What limits court’s ability to fashion new remedies?
o SOP Concerns

, o = not court’s responsibility to make and execute laws

Private violation of fundamental rights – S8(2):
- Direct horizontal application of BOR
o S8(3): a court
 (a) In order to give effect to right must apply, or if necessary,
develop the CL to extent that legislation does not give effect to
that right
o Remedy: not in legislation; development of CL
- When done so – have regard to S39(2)
o Spirit, purport & objects of BOR
- Also – court keep in mind that not engine of law = incremental development

Indirect application:
- Relief in terms of interpretation of legislation / development of common law 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 CT = indirect application
o May be done if legislative provision is reasonably capable of being
interpreted in conformity with CT

Purpose of constitutional remedies:
- Vindicate constitutional rights & constitution and deter future infringements by
legislature or private parties
- Ideal construct of a constitutional world = adherence to fundamental
democratic values based on human dignity; equality & freedom
o Synchronise with real world where violations occur (Fose v MSS)

Factors relevant in considering appropriate remedy:
- Constitutional remedies must generally be
o Forward-looking (to achieve aim of democratic society)
o Community orientated
 When rights are violated – harm usually suffered by a whole
community
 Remedy crafted to protect entire community > individualistic
approach to remedy
o Structural
 Tries to correct constitutional structure (as envisaged in CT)
- Remedies must be effective:
o Hoffman v SAA:
 SAA policy – don’t employ HIV+