Developing the jurisprudence of constitutional remedies for breach of Fundamental Rights in South Africa : an analysis of Hoffman and related cases

• DOI: 10.25159/2522-6800/3578
• Pages: 1-26
• Published date: 01 August 2017
• Date: 01 August 2017
• Author: Chuks Okpaluba

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https://doi.org/10.25159/2522-6800/3578

ISSN 2522-6800 (Online) | ISSN 2219-6412 (Print)

© Unisa Press 2017

Southern African Public Law

https://upjournals.co.za/index.php/SAPL/index

Volume 32 | Number 1 and 2 | 2017 | pp.1–26

ARTICLE

Developing the Jurisprudence of Constitutional Remedies

for Breach of Fundamental Rights in South Africa: An

Analysis of Homan and Related Cases

Chuks Okpaluba

Adjunct Professor, Nelson Mandela School of Law, University of Fort Hare

Email: okpaluba@mweb.co.za

ABSTRACT

In order to accomplish its objectives of extensively regulating rights and obligations, the

1996 Constitution of South Africa provides for the enforcement of those rights by the courts.

In turn, it has, in its enforcement provisions, invested in the courts enormous discretionary

powers to enable them to deal eectively with breaches of the entrenched fundamental rights

as well as all violations of constitutional rights. That the Constitutional Court has purposefully

interpreted and made optimum use of the expressions ‘appropriate relief’ and ‘just and

equitable’ order in developing the constitutional remedies jurisprudence is crystal clear from

a wealth of available case law. It is also not in doubt that the contributions of Justice Ngcobo

(later Chief Justice) in this regard are intellectually gratifying. This article singles out for

discussion and analysis the judgment of Ngcobo J in Homan v South African Airways 2001

(1) SA 1 (CC), which not only typies judicial activism at its acme, but has also introduced

into the South African public and labour laws the novel remedy of ‘instatement’. Apparently

drawn from the analogy of the labour-law remedy of reinstatement, ‘instatement’ is akin

to the remedy of mandamus in public law and specic performance in the law of contract.

This article moves from the premise that this innovation is one of its kind in contemporary

common-law jurisprudence and one that courts in common-law jurisdictions will no doubt

emulate one ne day.

Keywords: constitutional remedies; enforcement of rights; instatement; jurisdictional powers;

appropriate relief

Introduction

The Constitution of the Republic of South Africa, 1996 introduced a Bill of Rights

that, when juxtaposed with other constitutions within the Commonwealth, contains

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Okpaluba Constitutional Remedies for Breach of Fundamental Rights in South Africa

an exhaustive list of rights hitherto absent in those other Constitutions.1 Quite apart

from the usual civil and political rights which often form the bulk of the fundamental

rights provisions in many constitutions,2 human rights instruments and legislation,3 the

Constitution of South Africa entrenches, most remarkably: social and economic rights,4

labour rights,5 environmental rights,6 educational rights7 and children’s rights.8 Again,

apart from those equally entrenched rights such as the right to equality before the law,9

the right of access to information10 and the right to administrative justice11—which were

soon followed by national legislation that further amplies the scope and the necessary

intendment of those rights and providing for remedies in the event of breach—the

Constitution makes these provisions in broad terms. Granted that the Constitution

guarantees the right of access to the courts for the settlement of any dispute capable

of being resolved by the application of the law,12 then what remedy or relief should the

complainant of breach or infringement of any of the rights request the courts to grant

him or her? Of course, the Constitution guarantees the individual the right to approach

the High Court to enforce any infringement or threatened breach of their entrenched

rights. In this regard, the Court is empowered to grant ‘appropriate relief’, including

a declaration of rights.13 In the same vein, when deciding a constitutional matter, the

Court is obliged to declare any law or conduct inconsistent with the Constitution invalid

to the extent of its inconsistency; and, in the process, it may make an order that is ‘just

and equitable’.14 In this latter instance, the Constitution was more forthcoming than in

the case of the enforcement of the rights in the Bill of Rights, because it is a little more

specic when it speaks of the Court making an order limiting the retrospective eect

of the declaration of invalidity; and an order suspending the declaration of invalidity

for any period and on any conditions, to allow the competent authority to correct the

defect.15

1 Sections 7–38, Constitution of the Republic of South Africa, 1996.

2 See, for example, Chapter II, ss 3–16, Constitution of Botswana 1966; Chapter 1, ss 1–20, Constitution

of the Kingdom of Lesotho 1966 now replaced by Chapter II, ss 4–24, Constitution of Lesotho,

1993; Chapter 3, arts 5–25, Constitution of Namibia 1990; Chapter II, ss 1–19, Constitution of the

Kingdom of Swaziland 1966 now replaced by Chapter III, ss 14–39, Constitution of the Kingdom of

Swaziland 2005; Chapter III, ss 11–26, Constitution of the Republic of Zimbabwe 1980, now replaced

by Chapter 4, ss 44–85 of the Constitution of Zimbabwe Amendment (No 20) Act, 2013.

3 See New Zealand Bill of Rights Act 1990; UK Human Rights Act 1998, Schedule 1, arts 1–18.

4 Sections 26–27.

5 Section 23.

6 Section 24.

7 Section 29.

8 Section 28.

9 Section 9. See also Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000.

10 Section 32. See also Promotion of Access to Information Act 2 of 2000 (PAIA).

11 Section 33. See also Promotion of Administrative Justice Act 3 of 2000 (PAJA).

12 Section 34.

13 Section 38.

14 Section 172(1)(a) and (b).

15 Section 172(1)(b)(i) and (ii).