Chapter Eight Remedies © Constitutional remedies and the other stages of Bill of Rights analysis @) Constitutional remedies and the application of the Bill of Rights b) Remedies and standing . _ c) Remedies and jurisdiction . d) Remedies, interpretation and limitation &2 The difference between invalidity of unconstitutional law or conduct cud constitutional remedies. dies Sie cmamace erage scien patrgureis iia eecawangiete &4 The purpose of constitutional remedies... > Other factors relevant to the award of ‘o6nit utional rene. © The constitutional remedies a) Declarations of invalidity ee @ General principles... .. bee (ii) Controlling the impact of a declaration of bivalidity (aa) Severance . (bb) Reading in... (ee) Retrospective effect of cides of invalidity... (de) Suspension of orders of invalidity........ b) Declarations of rights......... ) Interdictory relief... (i) Interim relief. Gi) Final interdicts . . . (ii) Structural interdicts. dj Damages. ee... 8 é (); Geneapaneinies, (i) Indirect application and ‘the development of new danigoes MlaIMsS SUES SVN saa a.6.5.m eemen eona es mace (iii) Damages claims derived directly from the Constitution ©” Other forms of relief . a) Contempt of court . ‘b) Exclusion of evidence . tee c) Administrative law and labour law remedies . ** Remedies for private violations of rights 189. 190 191 191 191 192 193 195, 219 222 223 224 224, 226 226 226BA The Bill of Rights Handbook Enforcement of rights 98, Anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights. .. Powers of courts in constitutional matters 172.(1) When deciding a constitutional matter within its power, a court— (a) must declare that any law or conduct that is inconsistent with the Constitution is. invalid to the extent of the inconsistency; and (b) may make any order that is just and equitable, including— ()_an order limiting the retrospective effect of the declaration of invalidity; and (i) an order suspending the declaration of invalidity for any period and on any conditions, to allowthe competent authority to correct the defect. Application Bes (3) When applying a provision of the Bill of Rights to a natural or juristic person in terms of subsection (2), a court— (@) in order to give effect to a right in the Bill, must apply, or if necessary develop, the common law to the extent that legislation daes not give effect to that right; and (2) may develop rules of the common law to limit the right, provided that the limitation is in accordance with section 36(1).... Interpretation of Bill of Rights y the order, and not merely the interests of the parties to the litigation.”” The third factor that is often referred to is the separation of powers and, Sowing from it, the deference a court owes to the legislatures when devising a constitutional remedy. Although it has refrained from laying down guidelines, she Constitutional Court has stated that deference involves ‘restraint by the Courts in not trespassing onto that part of the legislative field which has been reserved by the Constitution, and for good reason, to the Legislature’. Fourth, there is the identity of the violator. As we stated above. the deterrent efiect of some remedies (such as constitutional damages) may differ consider- ably, depending on whether the violator of rights is public or private. Also, when 2a institution is responsible for the violation, it may be possible to remit a éecision to the violator for reconsideration, a remedy that is scarcely a possibility when the violator is an individual. The type of institution responsible for the »olation may further play a role. For example, courts are extremely unlikely to award damages for legislative violations of fundamental rights. Fifth, and closely related to the identity of the violator, the nature of the violation must be considered. Systemic violations of fundamental rights — as opposed to isolated violations — call for structural remedies, with appropriate ‘astitutions to supervise their implementation. Omissions may have to be treated ‘iferently to positive action, For example, it will be inappropriate for a court to order a legislature to introduce and adopt legislation."" Sixth, the consequences or impact of the violations on the victim must be considered, Violations of rights that result in imprisonment of the victim, should © Tid pata $0, See, also, Coctzer v Minister of Safely ane Security 2003 (3) SA 368 (LC) (ordering the promotion of employees denied it due to unfair racial discrimination). © Nationa Coalition for Gay and Lestian Equality v Minister of Home Affatrs (note 24 above) para 82. © Hoffman (note 23 above) paras 42-3. » National Coalition for Gay and Lesbian Equality v Minister of Home Affatrs (note 24 above) para 66, See Oosthuizen v LUR, Plaaslike Regering en Behuising 2004 (1) SA 492 (O), 499F (court declining to grant eccer compelling an MEC to provide further and better answers to questions posed in a provincial ‘zslature om the basis that it would interfere with the internal procecdings ofthe Icgislature). “See, for example, Bis Buck Ridge Border Committee v Goverament of the Northern Province 1999 (2) SCLR 193 (T) where the relief claimed by the applicants required the court to direct Parliament and ‘tain provincial legislatures to introduce legislation. The High Court held (202C) that the relief claimed ‘ould deprive the democratically-elected legislature of its right and function to legislate and stated that ‘ebate and amendment of [such] a bill would not be possible’ 19785 The Bill of Rights Handi not be tolerated, even temporarily,*?, therefore not an option in such cases,* particularly when considering constitut Seventh, ‘victim responsibility’ may Rights analysis, including remedial ana sponsibility of the accused for delays in the rights-defining stage of analysis.5 ness of a remedy.*? i remedial stage of analysis, consideration must be given to the ai Biven fo comply with an order, particularly in the ease of * See, for instance, the approach in § ¥ Shikurga 1997 (9) BCLR 1321 (NewS) and § y BCLR S19 (SCA). A criminal conviction is set ade when constitutional irregularities are so-fundamenta: that there was, in effeet, mo trial at al. tn the eace of ‘ntepularities ofa less severe nature, the convietion “only set aside ifthe irregularity tainied the verdict Paante t Govermmen’ ofthe Repulic of South Africa 1995 (4) SA 631 (CC) para 18, ¥ Fault is not only considered at the remcai stage of anal in City Council of Pretoria » intention to diseriminate in order to establish, may be relevant to the consideration whether the Paeginen in Walker with the coun’s approach in Hee (n the President pardons.a single prisoner iis cut a eee Smile 1998 (6 See, on waiver, 3.3/c) in Chapter 3 above *” Sce Hoffmann (note 23 Above) para 45 (the objective must be to make an afder that can be complied a, AEMUEE ¥ Rermanort Secretary, Deparment of Weffons eee Cape 2001 (2) $A 609 (E), 633A {fit to make an order which the respondents might have * What remains must give effect to the purpose of the legislation After the bad is severed from the good, the remainder must give effect to the Purpose of the law. As the ‘purpose’ of a law or legislative provision is seldom easy to ascertain, the application of this part of the test has been difficult. Needless to say, the purpose of a provision must be determined with reference to the statute as a whole and a court should be careful not to usurp the functions of the legislature. For example, in Case v Minister of Safety and Security,° Mokgoro J held that because the unconstitutional overbreadth of the statute permeated the entire text, severance of one or two isolated words from s 2(1) ofthe Indecent or Obscene Photographic Matter Act 37 of 1967 was not a viable option.’ Since the purpose behind the statute was to impose a “comprehensive i ferret (note SI above) para 156, This type of order raises questions about the distinetion between reading down and severance. Reading down is the re-interpretation of a statulory provision in egder sy prevent it being found unconstitutional, Severance isthe excision of the unconstitutional parts of statuls rom the parts that are not unconstitutional. However, the results of reading down and screranee ae often inilar, For example, the same conclusion could have been achieved by the majority of the Constitattend Sournin Ferreira by reading down the subsection as disallowing the use of evidence obtained aan eng in criminal proceedings. [is however doubtful whether the subsection was ‘reasonably capable’ of such ng interpretation. In addition, in Ferreira, Ackermann J formulated the coust’s order and, on his browd lnperbretation of the freedom right, the subsection was a violation ofthe Bill of Rights. This meant that the elfective re-interpretation of the subsection in the court's order was as.a result Of severance resbee hee ‘reading down (one cannot read down a provision that one has found to be uncon Brinstoo v Wan der Linde 1997 (3) SA 1012 (CC) where the Constitutional Court sepa RS word ‘action’ so as to prevent the use ofa statutory presumption in eriminal proceedings. The debate has become somewhat academic since a court can reconstruct i striking down and reading in, an alternative that we discuss in 8.6(c) EF Note 24 above paras 63-64, £89 also Dinsood (note 13 above} para 61 (notional severance cannot be used where unconstitutionally is because of an absence of legisative guidance); Jane nan Rershurg ¥ Miniter of Trade and Indus 2001 (HSA 29 (CC) para 28. 2 South African National Defence Uaton (note $0 above) pura 16 5 Case ¥ Minister of Safeey and Security 1996 (3) SA. 617 (CC), © Tid para 7h 202