Download this publication - PULP

72 Chapter 5
Were the Constitution to have been so interpreted, assuming for
a moment it was capable of such an interpretation, the scope for
duplication of claims in our legal system would have been extensive,
particularly as the 1996 Constitution makes clear that many of the
rights in the Bill of Rights bind private individuals as well as the state.
Two causes of action could have arisen, for example, where a person
complained of an infringement of dignity, or personal liberty, or
security of the person. The first would have been under the actio legis
aquiliae or actio injuriarum, (depending on the nature of the claim)
and the other a constitutional remedy. Duplication could have arisen
in labour law, administrative law, environmental law, the right to
freedom and security of the person and even criminal procedure.
Again, with the distinction between the jurisdiction of the
Constitutional Court, on the one hand, and the Supreme Court of
Appeal, on the other, these claims could have been resolved in
different courts, with potentially very different outcomes and scant
jurisprudential cross-pollination.
The question whether the Constitution always gives rise to a freestanding
cause of action, even where an appropriate common law or
statutory remedy already exists, has been answered in the negative
by the Constitutional Court. Textual support for this conclusion is to
be found in section 39(2): 23 Section 39(2) requires the common law
and statutes to be developed and interpreted in a manner that is
consistent with the spirit, purport and object of the Bill of Rights.
Section 173 24 makes it clear that the Constitutional Court has the
inherent jurisdiction to develop the common law. The question has
perhaps been most thoroughly considered in the area of
administrative law in the cases analysed by Professor Michelman.
Fedsure, 25 and perhaps more emphatically, Pharmaceutical
Manufacturers, 26 made clear that the Interim Constitution and now
the 1996 Constitution do not contemplate a dualist system of
administrative law with a duplication of remedies, but rather that
existing common-law remedies should give effect to the
constitutional right to administrative justice and be developed and
interpreted in the light of that right.
One of the most important reasons for this conclusion was the
dubious legal and constitutional basis for administrative law prior to
1994. The questions ‘why do the courts have the power to review
administrative decisions?’ and ‘what is the ambit of that power?’ were
23 See n 15 above.
24 See n 17 above.
25
Fedsure Life Assurance Ltd & Others v Greater Johannesburg Transitional
Metropolitan Council & Others 1999 1 SA 374 (CC), 1998 12 BCLR 1458 (CC).
26 Pharmaceutical Manufacturers Association of SA & Another: In re Ex Parte
President of the Republic of South Africa & Others 2000 2 SA 674 (CC), 2000 3
BCLR 241 (CC).