Page:NCGLE v Minister of Home Affairs.djvu/64

This page has been proofread, but needs to be validated.
Ackermann J

[65]In fashioning a declaration of invalidity, a court has to keep in balance two important considerations. One is the obligation to provide the “appropriate relief ” under section 38 of the Constitution, to which claimants are entitled when “a right in the Bill of Rights has been infringed or threatened”.[1] Although the remedial provision considered by this Court in Fose[2] was that of the interim Constitution,[3] the two provisions are in all material respects identical and the following observations in that case are equally applicable to section 38 of the Constitution:

“Given the historical context in which the interim Constitution was adopted and the extensive violation of fundamental rights which had preceded it, I have no doubt that this Court has a particular duty to ensure that, within the bounds of the Constitution, effective relief be granted for the infringement of any of the rights entrenched in it. In our context an appropriate remedy must mean an effective remedy, for without effective remedies for breach, the values underlying and the rights entrenched in the Constitution cannot properly be upheld or enhanced. Particularly in a country where so few have the means to enforce their rights through the courts, it is essential that on those occasions when the legal process does establish that an infringement of an entrenched right has occurred, it be effectively vindicated. The courts have a particular responsibility in this regard and are obliged to ‘forge new tools’ and shape innovative remedies, if needs be, to achieve this goal.”[4] [Footnote omitted]

  1. The relevant part of section 38 reads as follows:

    “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…”

  2. Fose v Minister of Safety and Security 1997 (7) BCLR 851 (CC); 1997 (3) SA 786 (CC).
  3. Section 7(4)(a) provided the following:

    “When an infringement of or threat to any right entrenched in this Chapter is alleged, any person referred to in paragraph (b) shall be entitled to apply to a competent court of law for appropriate relief, which may include a declaration of rights.”

  4. Above n 89 at para 69. The footnote omitted from the end of the quotation in the text, reads as follows:

    “See the observations of Verma J in the Nilabati Behera case (supra) n 123 as quoted in para 51 (supra) and the remarks of Harlan J in the Bivens case supra n 25 at 407 quoted in paras 33, 34 and n 67 (supra). In Nelles v Ontario (1989) 60 DLR (4th) 609 at 641–2