H.F. Oppenheimer Chair in Human Rights Law
University of Stellenbosch Law Faculty
Deepening democratic transformation in South Africa through
participatory constitutional remedies
Prepared for Conference, Constitutional Remedies: Are they Effective and Meaningful?
David Asper Centre for Constitutional Rights, University of Toronto
There is an intimate association between the exercise of court’s remedial powers to address violations of constitutional rights and the particular animating purposes and ideals of the particular Constitution understood in its unique social and historical context. Expressed differently, cognisance of the relevant constitutional provisions and remedial powers vested in the courts tells us very little about the principles which should guide the crafting of remedies for violations of the rights enshrined in a constitution’s bill or charter of fundamental rights. In order to understand some of the most acute remedial challenges facing the South African courts in human rights litigation, it is necessary to provide an account first of the nature of the South African Bill of Rights, and the overall role it is designed to fulfil in the context of South African society. Thereafter I turn to examining the general principles which have been articulated in relation to the crafting of constitutional remedies. The third section draws on the general purposive account of the Constitution and the remedial principles identified to discuss one of the emerging remedial strategies of the Constitutional Court of South Africa – orders of meaningful engagement. I choose to focus on this particular remedy (one of a wide range of available constitutional remedies deployed by the South African courts) as it illustrates an innovative response to one of their most pressing challenges faced by the South African courts in designing constitutional remedies – namely how to give effect to the far-reaching positive obligations imposed by a range of provisions in the Bill of Rights. It also resonates with the deeper underlying values and purposes of the Constitution discussed in the first part of the paper. I consider the multi-faced nature of this remedy as it has been applied in various cases, particularly eviction and education rights cases, where, to date, the remedy has found its primary application. The relationship of meaningful engagement as a remedy with the criteria for assessing compliance with constitutional norms in the first phases of constitutional analysis (rights definition and limitations), and the features that distinguish it from the supervisory orders and structural interdictions/injunctions more familiar to constitutional lawyers are also considered. The final part of the paper evaluates the remedy and its potential to serve as a workable remedial mechanism for advancing the transformative commitments of the South African Constitution.
This is the lunchtime plenary for the conference, “Constitutional Remedies: Are They Effective and Meaningful?”
February 28th, 2014