Developing the Jurisprudence of Constitutional Remedies for Breach of Fundamental Rights in South Africa: An Analysis of Hoffman and Related Cases

Abstract

In order to accomplish its objectives of extensively regulating rights and obligations, the 1996 Constitution of South Africa similarly provides for the enforcement of those rights by the courts. In turn, it has, in the said enforcement provisions, invested in the courts enormous discretionary powers to enable them to effectively deal with breaches of the entrenched fundamental rights as well as all constitutional rights violations. That the Constitutional Court has purposefully interpreted and made optimum use of the expressions: ‘appropriate relief’ and ‘just and equitable’ order in developing the constitutional remedies jurisprudence is crystal clear from a wealth of available case law. It is also not in doubt that the contributions of Justice Ngcobo (later Chief Justice) in this regard are intellectually gratifying. This presentation singles out for discussion and analysis the judgment of Ngcobo J in Hoffman v South African Airways 2001 (1) SA 1 (CC) which not only typifies judicial activism at its acme; it has also introduced into the South African public and labour laws, the novel remedy of ‘instatement.’ Apparently drawn from the analogy of the labour law remedy of reinstatement, ‘instatement’ is akin to the remedy of mandamus in public law, and specific performance in the law of contract. This article moves from the premise that this innovation is one of its kind in contemporary common law jurisprudence and one which courts in the common law jurisdictions world would no doubt emulate one fine day.