Constitutional Law 271 Bill of Rights Litigation C: Remedy Stage

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