Chapter 7 - Remedies

Question 1

Constitutional remedies and the application of the Bill of Rights

Answer 1

Constitutional remedies flow from the direct application of the Bill of Rights. Section 38 deals with remedies in cases of direct application of the Bill of Rights. In general, ordinary legal remedies must be exhausted before constitutional relief may be sought.

Question 2

Purpose of constitutional remedies

Answer 2

The harm caused by violating constitutional rights is not merely harm to an individual applicant, but harm to society as a whole: the violation impedes the realisation project of creating a just and democratic society. Therefore, the purpose of a constitutional remedy is to vindicate the Constitution and deter future infringements.

Question 3

The difference between invalidity of unconstitutional law or conduct and constitutional remedies

Answer 3

In terms of the clause which makes the Constitution the supreme law of the Republic, any law or conduct inconsistent with the Constitution is automatically invalid. The competent court will therefore make a declaration of invalidity of such unconstitutional law or conduct when there is a dispute between the specific law or conduct and the Constitution

Question 4

Appropriate relief and the flexible approach to constitutional remedies

Answer 4

Faced with constitutional obligation to grant appropriate relief in the case of any violation of the Bill of Rights, the courts have developed a flexible approach to constitutional remedies.

In the Fose v Minister of Safety case, the Court held that it was left to the courts to decide on what would be an appropriate relief in any particular circumstances, since the Constitution does not tell us what an appropriate remedy is.

Question 5

Factors relevant to awarding constitutional remedies

Answer 5

1. Acourts’s order must not only afford effective relief to a successful litigant but also to all similarly situated people
2. The separation of powers doctrine suggests that the courts owe the legislature a certain degree of deference when devising a constitutional remedy.
3. The identity of the violator should be considered.
4. A consideration closely related to the identity of the violator is the nature of the violation.
5. The consequences of the constitutional violation for the victims should be taken into account
6. The court ought to take the potential success or failure of its order into account when considering the appropriateness of a remedy.

Question 6

Clarification of the term “declaration of invalidity”

Answer 6

In the Fose case, the Constitutional Court held that the supremacy clause automatically made any unconstitutional law or conduct nullity. A declaration of invalidity is a constitutional remedy. The declaration of invalidity is not a discretionary remedy.

Question 7

Controlling the impact of a declaration of invalidity

Answer 7

1. Limiting the retrospective application of the declaration of invalidity.
2. Suspension of orders of invalidity
3. Severance
4. Reading in

Question 8

Limiting the retrospective application of the declaration of invalidity.

Answer 8

The Constitution is supreme, which means that any law/conduct that is inconsistent with the Constitution will be invalid When the court declares legislation invalid, it is merely confirming that it is invalid

Question 9

Suspension of orders of invalidity

Answer 9

In terms of section 172(1)(b)(ii), a court may temporarily suspend the effect of a declaration of invalidity in the interests of justice and equity. Suspension has the effect of making the declaration of invalidity subject to a resolution condition.

Question 10

Severance

Answer 10

Section 172(1)(a) provides that a law or conduct must be declared invalid to the extent of its inconsistency with the Constitution. This requires a court to declare a particular section or subsection of a law invalid or strike it down, leaving the rest of the law intact.

Question 11

Two parts of the severance exercise

Answer 11

1. First, it must be possible to sever the bad from the good
2. Secondly, the remainder must still give effect to the purpose of the law

Question 12

Reading in

Answer 12

Reading in missing words from a statutory provision differed from interpreting a statute in conformity with the Constitution, which is often referred to as reading down. Reading in is a remedy while reading down is a method of statutory interpretation aimed at avoiding inconsistency between the law and the Constitution. Reading-in is also a constitutional remedy which is granted by a court after it has concluded that a statute is constitutionally invalid.

Question 13

Declaration of rights

Answer 13

Section 38 of the Constitution provides for a declaration of rights. A declaration of rights differs from a declaration of invalidity in that it may be granted even when no law or conduct is found to be inconsistent with the Bill of Rights, whereas a declaration of invalidity flows from finding that there is an inconsistency between law and the Constitution.

Question 14

Interdicts

Answer 14

1. Interim interdicts
2. Final interdicts
3. Structural interdicts

Question 15

Interim interdicts

Answer 15

The purpose of interim relief is to preserve the status quo pending the adjudication of a dispute.

Question 16

Final Interdicts

Answer 16

Final interdicts include prohibitory interdicts and the mandamus. A final interdict requires the establishment of a clear right; an injury actually committed or reasonably apprehended and no other available form of relief.

Question 17

Structural interdicts

Answer 17

A structural interdict directs the violator to rectify the breach of fundamental rights under court supervision. These types of interdicts are particularly well-suited to socio-economic cases.

Question 18

Elements of structural interdicts

Answer 18

1. The court declares the respects in which the government to comply with the obligations.
2. The court orders the government to comply with the obligations
3. The court orders the government to produce a report setting out the steps it has taken; and steps that will be taken in future in a specified period.
4. The applicant is afforded an opportunity to respond other report.
5. Finally, the matter is enrolled for a hearing and, if satisfactory, the report is made an order of the court.

Question 19

Constitutional damage

Answer 19

Nothing in the Constitution prevents a court from awarding damages as a remedy for the violation of fundamental rights to compensate the victim of the violation and punish the violator.

Question 20

The Fose case established the following general principles in terms of Constitutional damages.

Answer 20

1 In cases where the violation of constitutional rights entails the commission of a delict, an award of damages, in addition to those available under the common law, will seldom be available.

2. Even in circumstances where delictual damages are not available, constitutional damages will not necessarily be awarded for a violation of human rights.

Question 21

Other forms of relief

Answer 21

1. Contempt of court
2. Exclusion of evidence
3. Administrative law and labour law remedies