Page:NCGLE v Minister of Home Affairs.djvu/64

Rh In fashioning a declaration of invalidity, a court has to keep in balance two important considerations. One is the obligation to provide the “appropriate relief ” under section 38 of the Constitution, to which claimants are entitled when “a right in the Bill of Rights has been infringed or threatened”. Although the remedial provision considered by this Court in Fose was that of the interim Constitution, the two provisions are in all material respects identical and the following observations in that case are equally applicable to section 38 of the Constitution: “Given the historical context in which the interim Constitution was adopted and the extensive violation of fundamental rights which had preceded it, I have no doubt that this Court has a particular duty to ensure that, within the bounds of the Constitution, effective relief be granted for the infringement of any of the rights entrenched in it. In our context an appropriate remedy must mean an effective remedy, for without effective remedies for breach, the values underlying and the rights entrenched in the Constitution cannot properly be upheld or enhanced. Particularly in a country where so few have the means to enforce their rights through the courts, it is essential that on those occasions when the legal process does establish that an infringement of an entrenched right has occurred, it be effectively vindicated. The courts have a particular responsibility in this regard and are obliged to ‘forge new tools’ and shape innovative remedies, if needs be, to achieve this goal.” [Footnote omitted] Rh