performed them. Where persons performing the acts did so in good faith and on the acceptance of the validity of the provisions in question, as they related to the offence of sodomy, it would not ordinarily be just or equitable to give the order any retrospective operation at all, for the reasons stated in De Lange v Smuts NO and Others.[1] If the persons concerned acted in bad faith the fact that the order in this case does not operate retrospectively would not debar any action which an accused (or his or her estate in the case of section 49(2) of the CPA) might have had on the grounds of acts performed mala fide. As far as the bail provisions are concerned similar considerations would apply. They could only very obliquely affect the accused’s so-called “right to a speedy trial”[2] under section 35(3)(d) of the Constitution, where the accused’s appropriate remedy, namely to be granted bail in order to ameliorate the harmful consequences of delays in the trial, would be unaffected.[3] In relation to all these provisions, the argument for giving the declaration of invalidity no retrospective effect is powerful. It is not, however, possible to envisage all the possible consequences flowing from a declaration of invalidity
- ↑ Above n 43 at para 105, where the following was stated:
“Moreover, if the order is granted any retrospective effect it could raise uncertainties as to whether a person unconstitutionally committed to prison in the past had a claim for damages in respect of a committal which was unassailable at common law at the time and ordered in good constitutional faith. If it were to transpire that the retrospective operation of the order does not provide a cause of action for damages, then persons unconstitutionally detained in the past suffer no prejudice in relation to damages. If it has the effect of giving rise to such a claim, then it seems to be a most undesirable consequence, having regard to the fact that the committal took place in good faith.”
- ↑ See Wild and Another v Hoffert NO and Others 1998 (6) BCLR 656 (CC); 1998 (3) SA 695 (CC) at para 1.
- ↑ Id at para 34.
