Unit summary
CourseBook: Human Rights: The Global and Local Legal Framework
Unit: 7. Remedies
Name: Phemelo Molemane
Date: 7 April 2025
REMEDIES
Constitutional remedies are legal actions that can be used to enforce and protect the rights
enshrined in the Bill of rights, which are vital parts of the constitution.
In south africa the word remedy can be reffered to as 'being':
a right of appeal
a common law right
a statuory right
an order of the court
an order of summary judgment
The purpose of constitutional remedies
01 ) Repair the harm caused to the applicant and to society
02) Deter unjustifiable infringements against constitutional rights
The apporach to constitutional remedies
section 38 of the constitution deals with standing , which was discussed in depth in chapter 6.
anyone listed in this section has right to apporach a competent court, alleging that a right in the
bill of rights has been infringed and the court may appropriate reflief including a declaration of
rights.The persons who may apporach a court are-
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, a)anyone acting in their own interest
b) acting on behalf of another person who person who cannot act in their own name
c)anyone acting as a member of, or in the interest of ,a group or class of persons
d) anyone acting in the public interest of its members.
e) an association acting in the interest of its members.
section 172 (1) of the constitution specfies the powers of a court regarding constitutional
matters.
Of particular relevance here is section 172(1)(b), which grants a court the authority to make an
order that is just and equitable.
section 172 (1) reads as follows:
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 , and
b)may make any order that is just and equitable , including
(i)an order limiting the retrospective effect of the declaration of invaildity
(ii)an order ,suspending the declaration of invalidity for any period and on any conditions , to
allow the competent authority to correct the defect.
''Apporiate relief '' in section 38 and 'just and equitable' in section 172(1)(b) are quite broad in
their meaning .
FACTORS RELEVANT TO AWARDING CONSTTITUTIONAL REMEDIES
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CourseBook: Human Rights: The Global and Local Legal Framework
Unit: 7. Remedies
Name: Phemelo Molemane
Date: 7 April 2025
REMEDIES
Constitutional remedies are legal actions that can be used to enforce and protect the rights
enshrined in the Bill of rights, which are vital parts of the constitution.
In south africa the word remedy can be reffered to as 'being':
a right of appeal
a common law right
a statuory right
an order of the court
an order of summary judgment
The purpose of constitutional remedies
01 ) Repair the harm caused to the applicant and to society
02) Deter unjustifiable infringements against constitutional rights
The apporach to constitutional remedies
section 38 of the constitution deals with standing , which was discussed in depth in chapter 6.
anyone listed in this section has right to apporach a competent court, alleging that a right in the
bill of rights has been infringed and the court may appropriate reflief including a declaration of
rights.The persons who may apporach a court are-
Page 1
, a)anyone acting in their own interest
b) acting on behalf of another person who person who cannot act in their own name
c)anyone acting as a member of, or in the interest of ,a group or class of persons
d) anyone acting in the public interest of its members.
e) an association acting in the interest of its members.
section 172 (1) of the constitution specfies the powers of a court regarding constitutional
matters.
Of particular relevance here is section 172(1)(b), which grants a court the authority to make an
order that is just and equitable.
section 172 (1) reads as follows:
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 , and
b)may make any order that is just and equitable , including
(i)an order limiting the retrospective effect of the declaration of invaildity
(ii)an order ,suspending the declaration of invalidity for any period and on any conditions , to
allow the competent authority to correct the defect.
''Apporiate relief '' in section 38 and 'just and equitable' in section 172(1)(b) are quite broad in
their meaning .
FACTORS RELEVANT TO AWARDING CONSTTITUTIONAL REMEDIES
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