Declarations of Invalidity

Question 1

What does s172 say about invalidity?

Answer 1

s172(1)(a) doesn’t confer discretion, instead - a court MUST DECLARE that any law or conduct that is inconsistent with the constitution is invalid to the extent of its inconsistency.

Question 2

Doctrine of Objective Invalidity

Answer 2

In light of the supremacy of the CSA, any law or conduct that is inconsistent with the Constitution is invalid from the moment that the conflict arises.

• rooted in s2 of the CSA (Constitutional supremacy)
• can have extensive and destructive effects

Question 3

What can the court do to mitigate the damage of declaring a law invalid?

Answer 3

Substantive mitigation - reading in and severance
Temporal mitigation - suspension of declaration of invalidity and limitation on the retrospective effect.

Question 4

Reading down

Answer 4

NOT QUITE A REMEDY
- If there are two ways of interpreting legal provision and one is constitutional and other not, court will prefer the constitutional interpretation
- Not a remedy – court avoids declaration of invalidity through interpretation – a s 39(2) process
- Can only be done if the words are reasonably capable of the constitutionally compliant interpretation and is not “unduly strained”.

Question 5

Reading In as substantive mitigation

Answer 5

Opposite of severance, add words in rather than cutting them out.
- invasive remedy, raises concerns about separation of powers so should be limited as much as possible.

Question 6

What did National Coalition say about reading in?

Answer 6

Paragraph 45:
‘[w]hen reading in (as when severing) a court should endeavour to be as faithful as possible to the legislative scheme within the constraints of the Constitution. Even where the remedy of reading in is otherwise justified, it ought not to be granted where it would result in an unsupportable budgetary intrusion. In determining the scope of the budgetary intrusion, it will be necessary to consider the relative size of the group which the reading in would add to the group already enjoying the benefits. Where reading in would, by expanding the group of persons protected, sustain a policy of long standing or one that is constitutionally encouraged, it should be preferred to one removing the protection completely Requirements’

Question 7

What factors must be taken into account when reading in?

Answer 7

1. Must fix the unconstitutionality
2. Must be as limited as possible
3. Can only be done if the court can define the words to be read in with sufficient precision
4. Faithful to legislative scheme; and
5. Not used when it would have unsupportable budget implications.

Question 8

Severance as Substantive Mitigation

Answer 8

Cutting out the provision which renders the law unconstitutional
- Similarly raises separation of powers concerns

Cannot always sever, must ask:
- can the ‘bad’ section be severed from good?
- does what remains give effect to the purpose of the legislative scheme?

Cannot rewrite the legislation (separation of powers concerns)

Question 9

Temporal Mitigation

Answer 9

• Limits the retrospective effect of orders of invalidity
• Suspension of an order of invalidity – law remains valid until parliament changes
• This provision is used sparingly because it may not vindicate rights violation in case [Minister of Home Affairs v Fourie]
• It serves the purpose of accommodating separation of powers concerns or competence of court to make policy choices

J and Another v Director General, Department of Home Affairs:
- “The suspension of an order is appropriate in cases where the striking down of a statute would, in the absence of a suspension order, leave a lacuna. In such cases, the Court must consider, on the one hand, the interests of the successful litigant in obtaining immediate constitutional relief and, on the other, the potential disruption of the administration of justice that would be caused by the lacuna. If the Court is persuaded upon a consideration of these conflicting concerns that it is appropriate to suspend the order made, it will do so in order to afford the legislature an opportunity “to correct the defect”. It will also seek to tailor relief in the interim to provide temporary constitutional relief to successful litigants.”

Question 10

Other remedies to Declarations of invalidity

Answer 10

• Meaningful engagement – developed in the context of the right to housing – supported by commitment to participatory democracy [Olivia Road case]
• Constitutional damages – sum of money [Ngomane v City of Johannesburg case]
• Declaration of rights
• Structural interdicts – a strategy in a lot of strategic litigation to grapple with systemic rights violations