an ancillary order, to remedy a statutory provision, reliant on the common law definition, which is also unconstitutional.
[170]The doctrine of the separation of powers is an important one in our Constitution[1] but I cannot see that it can be used to avoid the obligation of a court to provide appropriate relief[2] that is just and equitable[3] to litigants who successfully raise a constitutional complaint. The exceptions to the principle established in Bhulwana's
- ↑ De Lange v Smuts NO and Others 1998 (3) SA 785 (CC); 1998 (7) BCLR 779 (CC) at paras 60–63, S v Dodo 2001 (3) SA 382 (CC); 2001 (5) BCLR 423 (CC) at para 33, Minister of Defence v Potsane and Another; Legal Soldier (Pty) Ltd and Others v Minister of Defence and Others 2002 (1) SA 1 (CC); 2001 (11) BCLR 1137 (CC) at para 37.
- ↑ Section 38 of the Constitution:
“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. The persons who may approach a court are—
(a) anyone acting in their own interest; (b) anyone acting on behalf of another person who cannot act in their own name; (c) anyone acting as a member of, or in the interest of, a group or class of persons; (d) anyone acting in the public interest; and (e) an association acting in the interest of its members.” - ↑ Section 172 of the Constitution:
“(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 its inconsistency; and (b) may make any order that is just and equitable, including— (i) an order limiting the retrospective effect of the declaration of invalidity; and (ii) an order suspending the declaration of invalidity for any period and on any conditions, to allow the competent authority to correct the defect. (2) (a) The Supreme Court of Appeal, a High Court or a court of similar status may make an order concerning the constitutional validity of an Act of Parliament, a provincial Act or any conduct of the President, but an order of constitutional invalidity has no force unless it is confirmed by the Constitutional Court. (b) A court which makes an order of constitutional invalidity may grant a temporary interdict or other temporary relief to a party, or may adjourn the proceedings, pending a decision of the Constitutional Court on the validity of that Act or conduct. (c) National legislation must provide for the referral of an order of constitutional invalidity to the Constitutional Court. (d) Any person or organ of state with a sufficient interest may appeal, or apply, directly to the Constitutional Court to confirm or vary an order of constitutional invalidity by a court in terms of this subsection.”
