Enforcement PDF

Enforcement Banathi Nkehli Enforcement • The court process (in its entirety), is about enforcing rights that are guaranteed to a rights bearer. • Do NOT, see enforcement as a small isolated part of the jigsaw puzzle, enforcement is the picture the puzzle pieces form to make. • How? • When a right...

Enforcement Banathi Nkehli Enforcement • The court process (in its entirety), is about enforcing rights that are guaranteed to a rights bearer. • Do NOT, see enforcement as a small isolated part of the jigsaw puzzle, enforcement is the picture the puzzle pieces form to make. • How? • When a right is infringed/is faced with infringement, when you approach the court, you are seeking to have those rights protected/preserved • Such infringements can occur by way of: • A positive act (commission) – Rights like freedom and security of person require people to refrain from doing certain acts [assault, kidnapping, detention without trial etc.] and where those people commit these acts they have infringed that right • A negative act (omission) – Rights like the socio-economic rights require the state to do certain things to guarantee those basic minimums, where the state does not do these things, they have infringed on those rights by way of doing nothing. • When individuals approach the court to seek a remedy for an alleged infringement, it is said that they are ‘enforcing their rights’ in terms of the Constitution. • The procedural and substantive steps are the means to the end that is finding a remedy. The remedy being the ultimate way to go about enforcing rights against alleged infringements. Enforcement and the Constitution • Section 38 of the Constitution 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. • Competent court • This refers to the fact that the court that is approached must have the requisite jurisdiction to decide on the matter and grant the relief sought after. • As certain courts of a higher status have the inherent jurisdiction to address particular matters and thus the relief sought is contingent on the authority of the court to grant that relief • NB! The High Court, Supreme Court of Appeal and the Constitutional Court, have the authority to make orders concerning Constitutional invalidity of a parliamentary or provincial Bill/Act • HOWEVER, only the Constitutional court may confirm the invalidity made by the High Court or Supreme Court of Appeal in order for an order of Constitutional invalidity to have force. • NB! Building on the notion of a competent court, the Constitution [through amendments made in 2012] has offered additional mechanisms • Section 167(6) of the Constitution provides that National legislation, or the rules of the Constitution Court must allow a person, when it is in the interests of justice and with leave of the court to bring a matter directly to the Constitutional court [Direct Access]; or appeal directly to the Constitutional court from any other Court [Direct Appeal]. • The former takes place outside the context of appeals, and the other takes place in the context of appeals. Appropriate Relief – An Order of Constitutional Invalidity • A Confirmation of Constitutional invalidity is a form of appropriate relief. • Usually the last resort, and courts try as far as possible to avoid striking entire provisions/acts. They do this through • Severance and Reading in • Section 172(1) • Provides that a law that is declared inconsistent with the constitution is invalid to the extent of that inconsistency • This provision allows for severance, which 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. • Commencement of an order- Courts are thus empowered to make any order that is just and equitable including an order limiting the retrospective effect [applies to the future only] of the declaration of invalidity and the order suspending the declaration of invalidity for any period and any conditions to allow the competent authority to correct the defect [Fourie case]. • Reading-in: • This is 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. • Reading-in and Severance are preferable approaches as opposed to striking down a provision entirely because to do this would interfere with the separation of powers. • In terms of section 172(2)(a) – • 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. • Pay attention to the overlap that this work has with the substance of the work we covered under the topic of Constitutional Jurisdiction. Appropriate Relief – An Order of Constitutional Invalidity • Reading-down • Refers to when a provision that is inconsistent with the constitution is constructed narrowly to keep it constitutionally permissible. • Just like severance and reading-in, it is far more preferable because it does not unduly interfere with the separation of powers, and it keeps the legislation ‘alive’ because striking down an entire provision is undesirable • Section 39(2) – Interpretation Clause • This requires the courts to promote the spirit, purport and objects of the Bill of Rights when interpreting customary law, common law, or legislation • In this context the Court is keeping the legislation consistent with the constitution by interpreting it in a manner that promotes the spirit purports and objects of the Bill of Rights. Appropriate Relief – Other Remedies • In the same way the Constitution recognizes rights outside of the Bill of Rights under the Common Law or Customary Law. Common law and Customary Law remedies still apply as well • • • • Damages Interdicts Restitution Other funny Latin actions. • The other remedies emerge as Court orders [You will deal more with these in Civil Procedure] • Mandatory Order • Prohibitory Order • Declaratory Order Thanks for being such an awesome bunch! Always remember, by simply existing you make the world a better place <3. With love – Doctor Radebe, Zakariya Adams, Chane Nel, Neville Mupita, Christiaan Klingenberg and Banathi.