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68 Chapter 5
individuals and corporations, as well as the state. 14 The Constitution
also requires courts, when developing the common law or interpreting
statutes, to promote the spirit, purport and objects of the Bill of
Rights. 15 In considering the range of the Constitution, it is also
important to note its remedial provisions. They are unusual. A court
that finds law or conduct to be inconsistent with the Constitution
must declare it to be invalid 16 though courts are given powers to issue
further ‘just and equitable’ orders to mediate the effect of a
declaration of invalidity. Finally, it should be noted that the
Constitutional Court has the inherent jurisdiction to develop the
common law, along with the Supreme Court of Appeal and the High
Courts. 17
A further crucial textual pointer lies in the transitional provisions
of both the Interim Constitution and the 1996 Constitution. Both
Constitutions confirmed that old laws continued in force only to the
extent that they were not inconsistent with the new Constitution. 18
Thus, the transitional provisions ensured the continued validity of
14 Sec 8(2) of the Constitution provides: ‘A provision of the Bill of Rights binds a
natural or a juristic person if, and to the extent that, it is applicable, taking into
account the nature of the right and the nature of any duty imposed by the right.’
15 Sec 39(2) provides: ‘When interpreting any legislation, and when developing the
common law or customary law, every court, tribunal or forum must promote the
spirit, purport and objects of the Bill of Rights.’
16 Sec 172(1) provides:
(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
(ii)
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.
17 Sec 173 provides: ‘The Constitutional Court, Supreme Court of Appeal and High
Courts have the inherent power to protect and regulate their own process, and to
develop the common law, taking into account the interests of justice.’
18 Item 2 of schedule 6 of the 1996 Constitution provides:
(1) All law that was in force when the new Constitution took effect,
continues in force, subject to:
(a) any amendment or repeal; and
(b) consistency with the new Constitution.
(2) Old order legislation that continues in force in terms of subitem (1):
(a) does not have a wider application, territorially or otherwise, than
it had before the previous Constitution took effect unless
subsequently amended to have a wider application; and
(b) continues to be administered by the authorities that administered
it when the new Constitution took effect, subject to the new
Constitution.
Sec 229 of the Interim Constitution (Constitution of the Republic of South Africa
Act 200 of 1993) provided:
Subject to this Constitution, all laws which immediately before the
commencement of this Constitution were in force in any area which forms
part of the national territory, shall continue in force in such area, subject
to any repeal or amendment of such laws by a competent authority.