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+
(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+
