Study Theme 14: Enforcement

Question 1

Section 38 of the Constitution

Answer 1

Provides for the enforcement of rights and states:
Anyone that has standing may approach a competent court and the court may grant appropriate relief, including a declaration of rights.

Question 2

Competent Court

Answer 2

Court that is approached must have the requisite jurisdiction to decide on the matter and grant relief sought after.

Question 3

Explain an order for Constitutional invalidity and confirming Constitutional invalidity

Answer 3

> HC, SCA & CC have the right to make orders concerning Constitutional invalidity of a parliamentary or provincial Bill/Act
Only the CC may confirm the invalidity in order for it to have force

Question 4

Section 167 of the Constitution

Answer 4

Direct Access
Provides National legislation or the rules of the Constitutional Court must allow, when in the interest of justice and with leave of the court to bring the matter directly infront of the CC

Question 5

What type of form is a confirmation of constitutional invalidity

Answer 5

Appropriate relief

Question 6

A last resort of courts to try and avoid striking provisions is:

Answer 6

Severance: enables the court to remove those parts of a law that are inconsistent with the constitution to the extent that it is grammatically possible and still gives effect to the objects of the legislation

Reading-in: where the court adds words to a certain provision to keep to make it constitutionally permissible as opposed to striking down the provision in its entirety.

Question 7

Section 172(1) of the Constitution

Answer 7

Provides that a law that is declared inconsistent with the constitution is invalid to the extent of that inconsistency

Question 8

Section 172(2)(a) of the Constitution

Answer 8

• The High Court, the Supreme Court of Appeal (or a court of a similar status) can make an order of Constitutional invalidity.
• However, such an order lacks force until the Constitutional Court has confirmed that invalidity.