Constitutional Remedies

Question 1

ibi jus, ibi remedium

Answer 1

“where there is a right, there is a remedy”
-There are some cases where the court may grant a remedy before the infringement of rights has been proven.

• wording in s172, and s38 allow this
  s38: “anyone…alleging…the court may grant appropriate relief, including a declaration of right”
  s172: “When deciding a constitutional matter within its power, a court…may make any order that is just and equitable…”

ultimately a mechanism used to repair the infringement of a right.
- ‘the remedy is indeed part and parcel of the right’ (August v Electoral Commission)

Constitutional remedies seek to vindicate rights violations and deter further infringement

Question 2

Direct Vertical Application

Answer 2

s38 and s172(1) and (2):
- declaration of invalidity
- declaration of rights
- interdict (mandatory and prohibitory)
- constitutional damages
- meaningful engagement

Question 3

Direct Horizontal Application

Answer 3

s8(2) and (3)
- remedies in legislation that give effect to the BOR
- develop the common law to give effect to the BOR

Question 4

Indirect Vertical and Horizontal Application

Answer 4

s39(2)
- develop legislation, common law, customary law

Question 5

What are the key provisions to a just and equitable remedy by the courts?

Answer 5

Section 172(1)(a) - When deciding a constitutional matter within its power, a court ¬must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency;

Section 172(1)(b) and may make any order that is just and equitable, 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, to allow the competent authority to correct the defect

Section 38 ‘…and the court may grant appropriate relief, including a declaration of rights’

These terms (‘just and equitable’, ‘appropriate relief’) give court discretion in remedial design.

Question 6

What is appropriate relief?

Answer 6

Appropriate remedy = effective remedy (i.e., leaves no gap between the right and the remedy, it seeks to vindicate the rights to the fullest extent possible)

Fose v Minister of Safety and Security:
‘Appropriate relief will in essence be relief that is required to protect and enforce the Constitution. Depending on the circumstances of each particular case the relief may be a declaration of rights, an interdict, a mandamus or such other relief as may be required to ensure that the rights enshrined in the Constitution are protected and enforced. If it is necessary to do so, the courts may even have to fashion new remedies to secure the protection and enforcement of these all important rights.’ (para 19)

‘In our context an appropriate remedy must mean an effective remedy, for without effective remedies for breach, the values underlying and the rights entrenched in the Constitution cannot properly be upheld or enhanced. Particularly in a country where so few have the means to enforce their rights through the courts, it is essential that on those occasions when the legal process does establish that an infringement of an entrenched right has occurred, it be effectively vindicated. The courts have a particular responsibility in this regard and are obliged to “forge new tools” and shape innovative remedies, if needs be, to achieve this goal.’ (para 69)

Question 7

What is a ‘just and equitable’ remedy?

Answer 7

A ‘just and equitable’ remedy requires a balancing of the rights and interests of all parties including:
- separation of powers considerations
- the capacity and expertise of the court
- the financial implications of a remedy
- the impact that a remedy will have on third parties

Hoffman v SAA
‘Section 38 of the Constitution provides that where a right contained in the Bill of Rights has been infringed, “the court may grant appropriate relief”. In the context of our Constitution, “appropriate relief” must be construed purposively, and in the light of section 172(1)(b), which empowers the Court, in constitutional matters, to make “any order that is just and equitable. Thus construed, appropriate relief must be fair and just in the circumstances of the particular case. Indeed, it can hardly be said that relief that is unfair or unjust is appropriate’