LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

156 Chapter 5
between the parties. 132 It is primarily used to declare whether or not
a particular decision or conduct is a nullity. 133 This is in addition to
determining the scope of public powers and the obligations and the
ambit of the rights protected by the law. The Constitution explicitly
mandates courts to issue orders of declarations of rights; 134 it allows
persons listed as having locus standi to seek declarations of rights
from the courts. 135 The courts are also obliged to declare as invalid
any law or conduct that is inconsistent with the Constitution. 136
Declaratory orders are traceable as a common law remedy predating
the Constitution; they serve the role of clarifying legal and
constitutional obligations. Such clarification helps to enforce the
constitution and the values upon which the constitution is based. 137
A declaratory order is the most commonly and widely used nonintrusive
remedy used by the courts to pronounce on legal rights and
their infringement. The non-intrusive nature of a declaratory order
arises from the fact that it does not give directions as to how a
violation should be remedied. It leaves it to the state to determine
how, and when to remedy the violation. 138 This flexibility contributes
to an appropriate institutional division of labour between the courts
and government. 139 By making declaratory orders, courts signal
respect and show due deference to the executive and legislative
branches of the state. In the Rail Commuters case, the Constitutional
Court underscored the value of declaratory relief in a constitutional
democracy: It enables courts to declare the law, on the one hand, but
leave to the other arms of government, the executive and the
legislature, the decision as to how best the law, once stated, should
be observed. 140
In this respect, declaratory orders can be very effective,
especially in those cases where there are several ways available to the
state for remedying the violation. The court thus saves itself from the
agonising task of having to assess the pros and cons of each option,
and passes this task on to the state. This is a task which may require
consideration of political factors which are often beyond the easy
comprehension of the court.
132
G Aldous & J Alder Application for judicial review: Law and practice of the Crown
Office (1993) 66.
133 C Lewis Judicial remedies in public law (1992) 174.
134
Sec 38.
135 Sec 38 of the Constitution provides that the following persons may approach the
courts for a declaration of violation of rights: (a) anyone acting in their own
interests; (b) anyone acting on behalf of another person; (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 interests of its members.
136
Sec 172(1)(a) of the Constitution.
137 Rail Commuters case (n 51 above) para 107.
138 Shelton (n 47 above) 55.
139
Roach (n 42 above) 12-2.
140 Para 107.