8 Access to the Courts and Justiciability · 8 Access to the Courts and Justiciability Cheryl Loots...

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8 Access to the Courts and Justiciability Cheryl Loots Page 8.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8--1 (a) Access in terms of the South African Constitution . . . . . . . . . . . . 8--1 (b) Access in terms of the American Constitution . . . . . . . . . . . . . . 8--2 (c) The concept of justiciability . . . . . . . . . . . . . . . . . . . . . . . 8--3 8.2 Standing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8--3 (a) The concept of standing . . . . . . . . . . . . . . . . . . . . . . . . . . 8--3 (b) Standing in South African law . . . . . . . . . . . . . . . . . . . . . . 8--4 (i) The traditional approach . . . . . . . . . . . . . . . . . . . . . . 8--4 (ii) Standing in terms of the Constitution . . . . . . . . . . . . . . . 8--5 (aa) ‘anyone acting in their own interest’ . . . . . . . . . . . . . 8--6 (bb) ‘anyone acting on behalf of another person who cannot act in their own name’ . . . . . . . . . . . . . . . . . . . . . 8--6A (cc) ‘anyone acting as a member of, or in the interest of, a group or class of persons’ . . . . . . . . . . . . . . . . . . . . . 8--6A (dd) ‘anyone acting in the public interest’ . . . . . . . . . . . 8--8A (ee) ‘an association acting in the interest of its members’ . . . 8--8B (iii) The wider effect of FC s 38 . . . . . . . . . . . . . . . . . . . 8--8C (c) Standing in American law . . . . . . . . . . . . . . . . . . . . . . . . 8--8D (d) Standing in Canadian law . . . . . . . . . . . . . . . . . . . . . . . . 8--10 (e) Standing in Indian law . . . . . . . . . . . . . . . . . . . . . . . . . 8--11 [REVISION SERVICE 3, 1998] 8--i

Transcript of 8 Access to the Courts and Justiciability · 8 Access to the Courts and Justiciability Cheryl Loots...

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8 Access to the Courtsand Justiciability

Cheryl Loots

Page

8.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8--1(a) Access in terms of the South African Constitution . . . . . . . . . . . . 8--1(b) Access in terms of the American Constitution . . . . . . . . . . . . . . 8--2(c) The concept of justiciability . . . . . . . . . . . . . . . . . . . . . . . 8--3

8.2 Standing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8--3(a) The concept of standing . . . . . . . . . . . . . . . . . . . . . . . . . . 8--3(b) Standing in South African law . . . . . . . . . . . . . . . . . . . . . . 8--4

(i) The traditional approach . . . . . . . . . . . . . . . . . . . . . . 8--4 (ii) Standing in terms of the Constitution . . . . . . . . . . . . . . . 8--5

(aa) ‘anyone acting in their own interest’ . . . . . . . . . . . . . 8--6(bb) ‘anyone acting on behalf of another person who cannot act

in their own name’ . . . . . . . . . . . . . . . . . . . . . 8--6A(cc) ‘anyone acting as a member of, or in the interest of, a group

or class of persons’ . . . . . . . . . . . . . . . . . . . . . 8--6A(dd) ‘anyone acting in the public interest’ . . . . . . . . . . . 8--8A(ee) ‘an association acting in the interest of its members’ . . . 8--8B

(iii) The wider effect of FC s 38 . . . . . . . . . . . . . . . . . . . 8--8C(c) Standing in American law . . . . . . . . . . . . . . . . . . . . . . . . 8--8D(d) Standing in Canadian law . . . . . . . . . . . . . . . . . . . . . . . . 8--10(e) Standing in Indian law . . . . . . . . . . . . . . . . . . . . . . . . . 8--11

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8.3 Ripeness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8--12(a) Ripeness in South African law . . . . . . . . . . . . . . . . . . . . . 8--12(b) Ripeness in American law . . . . . . . . . . . . . . . . . . . . . . 8--14A(c) Ripeness in Canadian law . . . . . . . . . . . . . . . . . . . . . . . . 8--15

8.4 Mootness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8--15(a) Mootness in South African law . . . . . . . . . . . . . . . . . . . . . 8--15(b) Mootness in American law . . . . . . . . . . . . . . . . . . . . . . . 8--17(c) Mootness in Canadian law . . . . . . . . . . . . . . . . . . . . . . . 8--18

8.5 Delineating the doctrines of standing, ripeness and mootness . . . . . . . 8--18

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8.1 INTRODUCTION

(a) Access in terms of the South African Constitution

1Section 34 of the final Constitution (FC),1 under the heading ‘Access to courts’, provides:‘Everyone has the right to have any dispute that can be resolved by the application of law decidedin a fair public hearing before a court or, where appropriate, another independent and impartialtribunal or forum.’

REVISION SERVICE 5, 1999The corresponding section of the interim Constitution (IC)2 is s 22, which provides:‘Every person shall have the right to have justiciable disputes settled by a court of law or, whereappropriate, another independent and impartial forum.’3

Legislation which prevents or inhibits judicial resolution of a dispute, or which constitutesan impediment to a person’s constitutional right to have disputes resolved, may be challengedin terms of the access to courts clause. Legislation which has been challenged in terms ofthis clause includes: provisions providing statutory expiry periods for the commencement ofcivil actions;4 the Vexatious Proceedings Act,5 which limits the access to court of personsdeclared to be vexatious litigants (unsuccessful);6 a rule of court which obliged an applicantfor rescission of a default judgment to furnish security for costs as a prerequisite to beingable to make the application;7 a provision requiring a dispute to be referred to an adminis-trative tribunal (unsuccessful);8 a provision prohibiting appeals against the decision of anarbitration tribunal unless otherwise agreed by the parties (unsuccessful);9 and an ousterprovision purporting to place certain issues beyond judicial scrutiny.10 In considering theconstitutionality of legislation which prohibited legal representation in civil proceedingsbefore certain courts which apply customary law, it was held that the right of access to courtand of having justiciable disputes settled by courts would be rendered entirely nugatory ifthere were no right to legal representation.11 The access to justice clause has also been reliedupon to justify a decision by the Land Claims Court that it was not bound to apply the generalrule in civil litigation that ‘costs follow the result’.12 Parliament has also taken steps to

1 Constitution of the Republic of South Africa, Act 108 of 1996. 2 Constitution of the Republic of South Africa, Act 200 of 1993. 3 For a discussion of the fundamental right of access to court and its importance to the new constitutional order,

see Concorde Plastics (Pty) Ltd v NUMSA & others 1997 (11) BCLR 1624 (LAC). 4 Mohlomi v Minister of Defence 1997 (1) SA 124 (CC), 1996 (12) BCLR 1559 (CC); Baldeo v Minister of

Safety and Security 1997 (12) (BCLR) 1728 (D). 5 Act 3 of 1956. 6 Beinash v Ernst and Young 1999 (2) SA 116 (CC), 1999 (2) BCLR 125 (CC). 7 Mthethwa (Khoza) & others v Diedericks & others 1996 (4) SA 381 (N). 8 Carephone (Pty) Ltd v Marcus NO & others 1999 (3) SA 304 (LAC), 1998 (10) BCLR 1326 (LAC); Baramoto

& others v Minister of Home Affairs & others 1998 (5) BCLR 562 (W). 9 Patcor Quarries CC v Issroff & others 1998 (4) SA 1069 (SE), 1998 (4) BCLR 467 (SE).10 De Lille & another v Speaker of the National Assembly 1998 (3) SA 430 (C), 1998 (7) BCLR 916 (C).11 Bangindawo & others v Head of the Nyanda Regional Authority & another 1998 (3) SA 262 (Tk) at 277E--G,

1998 (3) BCLR 314 (Tk), 1998 (2) SACR 16 (Tk).12 Hlatshwayo v Hein 1998 (1) BCLR 123 (LCC) at paras 16--26.

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increase access to courts. The Abolition of Restrictions on the Jurisdiction of Courts Act1

amended over a hundred pieces of legislation, removing provisions which constituted abarrier to access to the courts.

The guarantee of access to the courts or other fora embodies the requirement that therebe a ‘dispute that can be resolved by the application of law’.2 IC s 22 guaranteed the rightof access to court in respect of a ‘justiciable’ dispute. The change in wording from the use ofthe adjective ‘justiciable’ to the qualification of a ‘dispute’ as one which ‘can be resolvedby the application of the law’ probably reflects the policy of the drafters of the finalConstitution to use ‘plain and simple English’ rather than an intention to exclude therequirement of justiciability. It is arguable, however, that it reflects a conscious decision tomove away from the restrictive effect of the use of the word ‘justiciability’.2 The concept of justiciability reflects the principle that the function of the courts is toresolve disputes between parties, not to decide academic questions of law. This is a principleto which our courts adhere,3 but one which is undergoing radical change. Where it is in thepublic interest that an issue be decided, that issue is increasingly being regarded as notacademic,4 and, therefore justiciable.

This chapter will examine the concept of justiciability and the extent to which thequalification of the right of access to the courts by the requirement that there be a ‘disputewhich can be resolved by the application of the law’ may present a procedural barrier toaccess to the courts, particularly with regard to the litigation of constitutional issues.

(b) Access in terms of the American Constitution

Article III of the American Constitution5 limits the judicial power of the federal courts to‘cases’ and ‘controversies’. The United States Supreme Court has held that:

‘Embodied in the words ‘‘cases’’ and ‘‘controversies’’ are two complementary but somewhatdifferent limitations. In part these words limit the business of federal courts to questions presentedin an adversary context and in a form historically viewed as capable of resolution through the judicialprocess. And in part these words define the role assigned to the judiciary in a tripartite allocationof power to assure that the federal courts will not intrude into areas committed to the other branchesof government. Justiciability is the term of art employed to give expression to this dual limitationplaced upon federal courts by the case-and-controversy doctrine.’6

1 Act 88 of 1996.2 FC s 34.3 See Zantsi v Council of State, Ciskei, & others 1995 (4) SA 615 (CC), 1995 (10) BCLR 1424 (CC) at para 7.4 See Ferreira v Levin NO & others; Vryenhoek & others v Powell NO & others 1996 (1) SA 984 (CC), 1996 (1)

BCLR 1 (CC) at paras 164, 165, 233. See also Port Elizabeth Municipality v Prut NO & another 1996 (4) SA 318(E) at 324H--326C.

5 Article III provides: ‘The judicial Power shall extend to all Cases, in Law and Equity, arising under thisConstitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; ----to all cases affecting Ambassadors, other public Ministers and Consuls; ---- to all Cases of admiralty and maritimeJurisdiction; ---- to Controversies to which the United States shall be a Party; ---- to Controversies between two ormore States; ---- between a State and Citizens of another State; ---- between Citizens of different States; ---- betweenCitizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizensthereof, and foreign States, Citizens or Subjects.’

6 Flast v Cohen 392 US 83 at 94--5, 88 SCt 1942 (1968).

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In order for a matter to be justiciable in terms of the US Constitution it must ‘present areal and substantial controversy which unequivocally calls for adjudication of the rights’asserted.1 The extent to which there is a ‘real and substantial controversy’ is usuallydetermined under the doctrines of ‘standing’, ‘ripeness’ and ‘mootness’, and the ‘politicalquestion’ doctrine, which bars the decision of disputes best suited to resolution by othergovernment actors.2

2A

1 Poe v Ullman 367 US 497 at 509, 81 SCt 1752 (1961).2 Laurence H Tribe American Constitutional Law 2 ed (1988) 67--9.

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In short, the United States Supreme Court has interpreted the ‘case or controversy’requirement as limiting the jurisdiction of the courts to the resolution of ‘concrete disputes’.While the South African Constitution has no ‘case or controversy’ clause, the requirementthat there be a ‘dispute that can be resolved by the application of law’may introducesimilar barriers to litigation. Our Appellate Division has already used the term ‘justiciability’in this context.1

(c) The concept of justiciability

3A determination of justiciability involves an inquiry into whether it is appropriate for aparticular issue to be resolved by the courts.

The features which may be subject to inquiry are:

(1) whether the plaintiff has standing to claim the relief;(2) whether the dispute is ripe for determination;(3) whether the issue is moot in that the dispute is resolved;(4) whether the subject-matter is appropriate for judicial action.

REVISION SERVICE 3, 1998The first three types of inquiry are concerned with procedural justiciability. Although themerits of the dispute are appropriate for resolution by the court, there is a procedural barrierto the merits being heard in that either the plaintiff does not have standing, the dispute is notripe for resolution, or the dispute has been resolved. The requirement of procedural justici-ability is based upon the principle that it is not the function of the courts to determineacademic or hypothetical issues.

The fourth type of inquiry concerns substantive justiciability and requires a decision asto whether the subject-matter of the dispute falls within the jurisdiction of the courts at all.There are some issues not appropriately decided by the courts because an executive orlegislative body is empowered to make such decisions. An example would be a decision asto whether a foreign state should be recognized. Such decisions are clearly the prerogativeof the executive. This aspect of justiciability is deeply rooted in the notion of the separationof the powers of the legislative, executive and judicial branches of government.

This chapter will examine the procedural justiciability doctrines of standing, ripeness andmootness as they exist in the United States and Canada and consider the extent to which theyare likely to apply to constitutional litigation in South Africa, taking into account the expressprovisions of the Constitution.

8.2 STANDING

(a) The concept of standing

The concept of standing is concerned with whether a person who approaches the court is aproper party to present the matter in issue to the court for adjudication.2 The word ‘standing’

1 Cabinet of the Transitional Government for the Territory of South West Africa v Eins 1988 (3) SA 369 (A)at 387I.

2 Adolf Homburger ‘Private Suits in the Public Interest in the United States of America’ (1974) 23 Buffalo LR343 at 388.

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has been referred to as ‘a metaphor used to designate a proper party to a court action’.1 Aninquiry into standing should thus focus on the party who brings the matter before the court,not on the issues to be adjudicated.2 Doctrines of standing have assumed increasingimportance in public law because often the party who brings a public-law issue before thecourt does so not for personal gain, but out of a sense of conviction that public authorities orrepresentative bodies should not be allowed to act unlawfully. Such parties have been referredto as ‘ideological plaintiffs’ or ‘non-Hohfeldian plaintiffs’.3 In effect such plaintiffs areclaiming relief in the public interest or in the interest of a section of the public, the membersof which are adversely affected by the wrong complained of.

(b) Standing in South African law

(i) The traditional approach

4Traditionally South African courts have adopted a restrictive attitude to the issue of standing,requiring a person who approaches the court for relief to have an interest in the sense of beingpersonally adversely affected by the wrong alleged.4 A plaintiff or applicant may notapproach the court on the basis that the defendant or respondent is doing something whichis contrary to the law and that it is in the public interest that the court should grant appropriaterelief.5 A plaintiff or applicant who is not able to establish an interest is said to lack ‘standing’or ‘locus standi’.

A notable exception to the application of the rule requiring that a person who approachesthe court be personally adversely affected by the wrong complained of and be entitled toclaim only relief which is in that person’s own interest was the decision in Wood & others vOndangwa Tribal Authority & another.6 In that case the Appellate Division allowed church

1 Marla E Mansfield ‘Standing and Ripeness Revisited: The Supreme Court’s Hypothetical Barriers’ (1992)68 North Dakota LR 1 at 6, referring to Steven L Winter ‘The Metaphor of Standing and the Problem ofSelf-Governance’ (1988) 40 Stanford LR 1371.

2 Gene R Nichol Jr ‘Rethinking Standing’ (1984) 72 California LR 68 at 85.3 Louis L Jaffe ‘The Citizen as Litigant in Public Actions: The Non-Hohfeldian or Ideological Plaintiff’ (1968)

116 University of Pensylvania LR 1033. Hohfeld postulated a plaintiff who would be seeking a determination thathe had a right, a privilege, an immunity or a power: Hohfeld ‘Some Fundamental Legal Conceptions as Applied inJudicial Reasoning’ (1913) 23 Yale LJ 16.

4 Bagnall v The Colonial Government (1907) 24 SC 470; Patz v Greene & Co 1907 TS 427 at 433--5; Directorof Education v McCagie & others 1918 AD 616 at 621--2 and 631; Cabinet for the Transitional Government for theTerritory of South West Africa v Eins 1988 (3) SA 369 (A) at 389I; Shifidi v Administrator-General for South WestAfrica & others 1989 (4) SA 631 (SWA) at 637D--F; Milani & another v South African Medical and Dental Council& another 1990 (1) SA 899 (T) at 902D--903G; Waks en andere v Jacobs en ’n ander 1990 (1) SA 913 (T) at917B--919C; Natal Fresh Produce Growers’ Association & others v Agroserve (Pty) Ltd & others 1990 (4) SA 749(N) at 758G--759D. As to what constitutes sufficient interest, see Jacobs en ’n ander v Waks en andere 1992 (1) SA521 (A) and Fedsure Life Assurance Ltd & others v Greater Johannesburg Transitional Metropolitan Council &others 1998 (6) BCLR 671 (SCA).

5 Bagnall v The Colonial Government (1907) 24 SC 470; Patz v Greene & Co 1907 TS 427 at 433; Dalrymple& others v Colonial Treasurer 1910 TS 372 at 386; Director of Education, Transvaal v McCagie & others 1918 AD616 at 621 and 627; Roodepoort-Maraisburg Town Council v Eastern Properties (Pty) Ltd 1933 AD 87 at 101; VonMolkte v Costa Areosa (Pty) Ltd 1975 (1) SA 255 (C) at 259A--C; Wood & others v Ondangwa Tribal Authority &another 1975 (2) SA 294 (A) at 310F; Cabinet for the Transitional Government for the Territory of South WestAfrica v Eins 1988 (3) SA 369 (A) at 387I--389A.

6 1975 (2) SA 294 (A).

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leaders to claim an interdict in the interest of a large, vaguely defined group of persons whofeared that they would be illegally arrested, tried and subjected to summary punishment onaccount of their political affiliations. The court took into account that it would be impracticalto expect the people under threat, many of whom were tribesmen living far from the seat ofthe court, to approach the court themselves and therefore allowed the applicants to representtheir interests. This decision could have been used by the courts as a precedent to justify therelaxation of the traditional rule against representative standing, but instead they limited itsapplication to matters involving violations of life, liberty or physical integrity.1

(ii) Standing in terms of the Constitution

5Section 38 of the final Constitution mandates a broad approach to standing for the purposeof the enforcement of rights entrenched in Chapter 2. This section provides:

‘Anyone listed in this section has the right to approach a competent court, alleging that a right inthe Bill of Rights has been infringed or threatened, and the court may grant appropriate relief,2

including a declaration of rights. The persons who may approach the court are ----(a) anyone acting in their own interest;(b) anyone acting on behalf of another person who cannot act in their own name;(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 interest of its members.’

REVISION SERVICE 5, 1999This section is, in effect, the same as its predecessor, IC s 7(4), though the wording andsequence are slightly different. IC s 7(4) read as follows:

‘(a) When an infringement of or threat to any right entrenched in this Chapter is alleged, anyperson referred to in paragraph (b) shall be entitled to apply to a competent court of law forappropriate relief, which may include a declaration of rights. (b) The relief referred to in paragraph (a) may be sought by ---- (i) a person acting in his or her own interest; (ii) an association acting in the interest of its members;(iii) a person acting on behalf of another person who is not in a position to seek such relief in his

or her own name;(iv) a person acting as a member of or in the interest of a group or class of persons; or (v) a person acting in the public interest.’

These provisions radically change the common-law rules of standing. The effect of each isconsidered below.

1 Christian League of Southern Africa v Rall 1981 (2) SA 821 (O) at 826--7; Ahmadiyya Anjuman Ihaati-IslamLahore (South Africa) & another v Muslim Judicial Council (Cape) & others 1983 (4) SA 855 (C) at 864E--F;National Education Crisis Committee v State President of the Republic of South Africa (unreported, caseno 16736/86, 9 September 1986, WLD) discussed by Cheryl Loots ‘Keeping Locus Standi in Chains’ (1987) 3SAJHR 66 at 69; National Union of Mineworkers v Free State Consolidated Gold Mines (Operations) Ltd 1989 (1)SA 409 (O) at 413--14 (the last-mentioned case misrepresented the Wood case as relaxing standing only for thepurpose of the actio de libero homine exhibendo). In Marievale Consolidated Mines Ltd v President of the IndustrialCourt & others 1986 (2) SA 485 (T) at 492A counsel requested the court to apply the Wood principle, but the courtfound it unnecessary to do so as it held that the applicant had standing on other grounds.

2 As to what constitutes appropriate relief, see below, Klaaren ‘Judicial Remedies’ § 9.6. In Gerber v Voorsitter:Komitee oor Amnestie van die Kommissie vir Waarheid en Versoening 1998 (2) SA 599 (T) it was held that, inapplying s 38 of the Constitution, the nature of the remedy or what it is labelled is not important.

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(aa) ‘anyone acting in their own interest’

6This provision effects no change, reflecting the common-law rule that relief may be claimedby a person acting in his or her own interest.1 However, in Van Huyssteen v Minister ofEnvironmental Affairs and Tourism Farlam J held that term ‘interest’ in IC s 7(4)(b)(i)was ‘wide enough’ to include the interest of a trustee in maintaining the value of a prop-erty. The court seemed to assume that the interest referred to could be broader than the com-mon-law rule.2

In Ferreira v Levin NO & others3 Ackermann J took the view that the interest referredto in IC s 7(4)(b)(i) must relate to the vindication of a constitutional right of the applicantand not of some other person. However, a majority of the court disagreed with this view andheld, per Chaskalson P,4 that the person acting in his or her own interest did not need to bea person whose own constitutional right had been infringed. Chaskalson P emphasizedthat, while it was for the Constitutional Court to decide what constituted a sufficient interest,it would adopt a broad approach to the question of standing. ‘This would be consistentwith the mandate given to [the] Court to uphold the Constitution and would serve toensure that constitutional rights enjoy the full measure of the protection to which they areentitled.’5

The proposition that the interest referred to need not relate to a constitutional right of theapplicant, but may relate to a constitutional right of some other person, is illustrated by thedecision in Port Elizabeth Municipality v Prut NO & another.6 The applicant municipalitysought an order declaring that its conduct in treating amounts owed by predominantly whiteratepayers in terms of a municipal ordinance differently from rates owed by predominantlyblack ratepayers in terms of the Black Local Authorities Act 1982 did not constitute unfairdiscrimination within the meaning of IC s 8(2). The right in issue was the right of theratepayers not to be unfairly discriminated against. The court held that the municipality hadan interest in obtaining a declaratory order as to whether its conduct infringed the right ofthe ratepayers.7

The changed wording in the final Constitution could lead to a different interpretation.Whereas the interim Constitution provided that the persons listed in s 7(4) could claim relief‘[w]hen an infringement of or threat to any right’ was alleged, the final Constitution providesthat anyone listed in s 38 has the right to approach a court ‘alleging that a right in the Bill ofRights has been infringed or threatened’. The new wording does seem to require that it bethe applicant who is alleging that a right has been infringed, whereas in the Prut case, decidedunder the interim Constitution, it was the respondents who were alleging the infringementof a right. While the drafters of the final Constitution probably did not intend the new wordingto have this limiting effect, a literal interpretation of the section may lead a court to requirethat it be the applicant who alleges the infringement.

1 But see below, Klaaren ‘Judicial Remedies’ § 9.6.2 Van Huyssteen v Minister of Environmental Affairs and Tourism 1996 (1) SA 283 (C) at 301G--H, 1995 (9) BCLR

1191 (C). See also Ferreira v Levin NO & others 1996 (1) SA 984 (CC), 1996 (1) BCLR 1 (CC) at para 165 (Chaskal-son P), Bafokeng Tribe v Impala Platinum Ltd & others 1999 (3) SA 517 (B) at 549E--551A, 1998 (11) BCLR 1373(B) and National and Overseas Modular Construction v Tender Board, FS 1999 (1) SA 701 (O) at 704A--E.

3 Supra at para 38. See also at para 226 (per O’Regan J). 4 At paras 163--8.5 At para 165.6 1996 (4) SA 318 (E). 7 At 324H--325J.

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(bb) ‘anyone acting on behalf of another person who cannot act in their own name’

6AThe provision that relief may be sought by a person acting on behalf of another person whois not in a position to seek such relief in his or her own name, makes the decision in Wood vOndangwa Tribal Authority applicable to the enforcement of all the rights guaranteed inChapter 2. The effect is that this principle is no longer limited to situations in which life andliberty are endangered. It is suggested that the applicant should spell out why the personwhose rights are affected is not able to approach the court personally and allege that suchperson would have done so had he or she been in a position to do so.1

(cc) ‘anyone acting as a member of, or in the interest of, a group or class of persons’

REVISION SERVICE 3, 1998This provision may also seem simply to implement the principle accepted by the AppellateDivision in the Wood case, but it is broader in that the applicant is not required to establish

1 See Wood & others v Ondangwa Tribal Authority & another 1975 (2) SA 294 (A) at 311G.

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6B

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that the persons in whose interest the action is brought are not in a position to act themselves.This subsection has far reaching implications in that it may be seen as introducing aclass action into South African law. The essence of a class action, or representative action1

as it is known in many countries, is that one person may bring an action in the interest of aclass of persons all having the same cause of action. In other jurisdictions the representativeplaintiff is required to be a member of the class in the sense that s/he shares the same causeof action and has the same interest as the other members of the class.2 The use of the words‘acting as a member of or in the interest of’ in s 38(c) makes it clear that the representativeplaintiff may be an ideological plaintiff and is not required to be pursuing an ‘own interest’.Indeed, it seems that a government authority may claim relief in the interest of members ofthe public whose rights are being infringed. In Minister of Health and Welfare v Woodcarb(Pty) Ltd & another3 the court held that the Minister of Health and Welfare could claim aninterdict to prevent continued pollution of the atmosphere which infringed the right ofmembers of the public to ‘an environment not detrimental to health or well-being’, asguaranteed by IC s 29.4

7REVISION SERVICE 5, 1999In other jurisdictions the effect of a judgment given in a class action is that it is bindingon the members of the class.5 This is the essential difference between a class action and apublic interest action, which aims to benefit the group in whose interest it is brought, but isnot binding on them in the sense that it is res judicata against them.6 The concept of an actionbeing binding upon persons not party to the action, in the sense that it will be res judicataagainst them, is foreign to South African lawyers, since class actions have never been partof our law.7 It is important to realize that where the action fails on the merits members of theclass will be prevented from taking the same issue to court themselves. For this reason dueprocess requires that class members be given notice of the action and the opportunity to exclude them-selves from the class if they could be prejudiced by a decision given in the matter.8 If a judgmentis to have a binding effect on the members of the class, the court should consider whethernotice to the class members is necessary and what type of notice is appropriate. In due course

1 Representative actions have their origin in the seventeenth-century English Courts of Chancery, whichdeveloped a representative action to allow a single person to bring or defend an action on behalf of all persons witha common interest: Adolf Homburger ‘State Class Actions and the Federal Rule’ (1971) 71 Columbia LR 609--11;Yeazell From Medieval Group Litigation to the Modern Class Action (1987) 132--59.

2 In the United States rule 23(a) of the Federal Rules of Civil Procedure provides that ‘[o]ne or more membersof a class may sue or be sued as representative parties on behalf of all’. The Ontario Class Proceedings Act 1992provides in s 2(1) that‘[o]ne or more members of a class of persons may commence a proceeding in court on behalfof the members of the class’. The Quebec Civil Code also refers to a member instituting a class action: Article 1002.

3 1996 (3) SA 155 (N).4 See also Bafokeng Tribe v Impala Platinum Ltd & others 1999 (3) SA 517 (B), 1998 (11) BCLR 1373 (B),

where Friedman J held that a tribe could rely on s 38(c) to sue in the interest of its members.5 The application of the res judicata principle to class actions was examined in detail by the Ontario Law Reform

Commission in its Report on Class Actions (1982) 753--70.6 See Homberger ‘Private Suits in the Public Interest in the United States of America’ (1974) 23 Buffalo LR 243 at 388.7 The representative action of English law, which was the predecessor of the modern class action, was received

into other Anglo-American legal systems, but not into South African law. The reason for this is probably that it wasa procedure of the courts of equity and that the law of equity never became part of South African law.

8 See Ontario Law Reform Commission Report on Class Actions (1982) 467--518 for a comprehensive analysisof notice requirements.

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notice requirements will probably be regulated by legislation.1 In many instances it will notbe necessary for the judgment to have a binding effect on the members of the group or classand the protection of rights will be achieved by a public interest action, as a result of whichbenefits automatically accrue to the group or class of persons in whose interest the action isbrought. For instance, where legislation which has a prejudicial effect on a group of peopleis declared invalid all who were prejudiced automatically benefit. Where the action is of thisnature notice need not be given to the members of the group or class since an adversejudgment on the merits will not bar them from approaching the court on the same issue.2

8 An attempt was made to utilize the class action provision of the interim Constitution inMatiso v Commanding Officer, Port Elizabeth Prison, & another.3 A judgment debtor, whoclaimed to be released from prison pending a determination by the Constitutional Court ofthe validity of certain provisions of the Magistrates’ Courts Act 32 of 1944 in terms of whichshe had been imprisoned, also claimed the release of other prisoners being detained in termsof the same provisions. It was argued that these persons and the applicant constituted a groupor class of persons and that the applicant was entitled to seek and obtain relief on behalf ofsuch persons. The court was not convinced that this argument was correct, but avoideddeciding the issue by making an order enabling any person concerned to join in theapplication.4 The court preferred to adopt this procedure because it said that if it madethe order requested, relief would be granted without giving the judgment creditor of eachperson concerned the right of being heard by the court. It is unfortunate that the court didnot make use of the class action provision. The joinder procedure requires an application tocourt, which many prisoners would not know how to go about bringing or may not be ableto afford to bring. If the court had treated the matter as a class action, the rights of thoseprisoners in the same position as the applicant would have been automatically protected andthe court could have ordered the publication of a notice calling upon all interested judgmentcreditors to show cause why the order claimed should not be made.

Another attempt to invoke the class action provision failed in Lifestyle Amusement Centre(Pty) Ltd & others v The Minister of Justice & others.5 The applicants sought an orderrestraining the respondents from interfering with their casino businesses pending a decisionby the Constitutional Court on the validity of the Gambling Act 51 of 1965 and the Lotteriesand Gambling Board Act 210 of 1993. The matter was brought in the Cape ProvincialDivision to take advantage of the decision in Wehmeyer v Lane NO,6 which held that the localand provincial divisions of the Supreme Court had jurisdiction to grant interim interdictswhich have the effect of suspending the validity of an Act of Parliament pending applicationto the Constitutional Court for an order striking down the Act in question.7 The vast majorityof the applicants were not based in the Cape. Van der Berg AJ dismissed the applicationbecause the court lacked territorial jurisdiction to deal with it:

1 The South African Law Commission has established a committee to investigate and report on the possibilityof introducing class actions into South African law.

2 Obviously the operation of stare decisis will deter repeated attempts to litigate the same issues.3 1994 (3) SA 899 (E).4 See Matiso v Commanding Officer, Port Elizabeth Prison, & another 1994 (4) SA 592 (E) at 595G--I, from

which it is apparent that some other debtors did join as co-plaintiffs.5 1995 (1) BCLR 104 (C). 6 1994 (4) SA 441 (C), 1994 (2) BCLR 14 (C).7 See above, Loots & Marcus ‘Jurisdiction’ § 6.2(d).

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‘One applicant, that is Namelus CC, representing some 1 999 other interested persons, is vestedwith locus standi in this division. The application is not brought in this division on account ofconvenience. It is brought in this division in order to obtain the cover afforded by the Wehmeyerdecision and for no other reason. It is on this applicant that the rest of the class of persons are nowattempting to piggy-back into this Court’s jurisdiction. To my mind the argument is wholly untenableand on this ground alone it must fail.’1

8AThis reasoning must, with respect, be correct. The provisions of the class action provisioncannot serve as a cover for forum-shopping without any regard to the ordinary principles ofterritorial jurisdiction. A class action cannot be brought before a court which lacks jurisdic-tion over a large part of the class in question, unless there are compelling reasons ofconvenience for the court to assume jurisdiction.

REVISION SERVICE 2, 1998The class action provision in the interim Constitution was successfully invoked in Beukesv Krugersdorp Transitional Local Council & another,2 a matter in which a white ratepayerraised a constitutional challenge to the levying by local authorities of ‘flat rate’ charges inblack townships in contrast with higher ‘user-based’ charges levied in formerly white areas.The applicant brought the application in his own interest and as a member of or in the interestof a group or class of persons, being ‘literally thousands’ of other ratepayers within thejurisdiction of the Transitional Local Council. The names, addresses, telephone numbers andsignatures of 120 of the persons on whose behalf the applicant purported to act were listedon a form appended to the application, which form contained the authorization of thesignatories for the applicant to act on their behalf. The respondent objected to the procedureadopted on the grounds, inter alia, that none of the persons listed had deposed to anapplication in support of the application and that the group had not been accurately defined.In an enlightened judgment Cameron J, adopting the broad approach to standing advocatedby Chaskalson P in Ferreira v Levin & others,3 held that it would run counter to the spiritand purport of the interim Constitution to require that persons who identify themselves asmembers of a group or class as a member of whom and in whose interest a litigant acts,should reiterate with formalistic precision the complaint with which they associate them-selves, or to require that they attest to their status or that they put in affidavits joining in thelitigation.4

(dd) ‘anyone acting in the public interest’

This provision is the most far-reaching because it introduces an apparently unrestricted publicinterest action in the sense that an applicant will have standing on the basis that he or she isacting in the public interest in seeking to enforce the rights guaranteed in Chapter 2. Theextent to which standing is unrestricted in terms of this clause will depend upon the way inwhich the courts interpret the words ‘in the public interest’. It is suggested that our courtsshould follow the approach of the Supreme Court of India, which regards the determinationof constitutional challenges to legislation or governmental action to be in the public interestand allows any citizen to bring such a matter before the court.5 This also emerges as a strongprinciple underlying the liberal rule of standing with regard to constitutional issues evolved

1 1994 (2) BCLR 14 (C) at 108E--F. 2 1996 (3) SA 467 (W).3 1996 (1) SA 984 (CC), 1996 (1) BCLR 1 (CC) at para 165.4 Beukes (supra) at 474G--I. 5 See below, § 8.2(e).

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by the Canadian Supreme Court, as described below. It would clearly be inappropriate for thecourts to adopt a restrictive interpretation in view of the direction, contained in FC s 39(1),that the provisions of Chapter 2 should be interpreted so as to promote the values whichunderlie an open and democratic society based on human dignity, equality and freedom. Aninterpretation in line with the attitude of the Indian Supreme Court would promote suchvalues. If this results in the courts being flooded by actions being brought in terms of s 38,then a procedure for screening complaints should be introduced.8BIn Ferreira v Levin NO & others O’Regan J was the only Justice to reach the issue of thelocus standi to claim relief in the public interest. She identified this section as ‘the provisionin which the expansion of the ordinary rules of standing is most obvious’.1 However, shestated that the Court would require an applicant ‘to show that he or she is genuinely actingin the public interest’ and stated:

‘Factors relevant to determining whether a person is genuinely acting in the public interest willinclude considerations such as: whether there is another reasonable and effective manner in whichthe challenge can be brought; the nature of the relief sought, and the extent to which it is of generaland prospective application; and the range of persons or groups who may be directly or indirectlyaffected by any order made by the Court and the opportunity that those persons or groups have hadto present evidence and argument to the Court.’2

In Port Elizabeth Municipality v Prut NO & another3 it was held that a municipality wasacting in the public interest as well as in its own interest in claiming an order declaring thatits conduct in treating different classes of ratepayers differently did not constitute unfairdiscrimination within the meaning of IC s 8(2). Referring to the broad approach to standingadopted by Chaskalson P in Ferreira v Levin,4 Melunsky J held that a court should be slowto refuse to exercise its jurisdiction in terms of IC s 7(4) where a decision would be in thepublic interest and where it may put an end to similar disputes.5

(ee) ‘an association acting in the interest of its members’

The provision that relief may be sought by an association acting in the interest of its membersis important because there has been a number of cases in which our courts have not allowedassociations to claim relief on behalf of their members, insisting that the individual membersmust approach the court themselves.6 Other courts have permitted organizations to representthe interest of their members.7 The fact that there are conflicting decisions with regard to thisissue made it advisable for the drafters of the interim and final Constitutions expressly toinclude s 7(4)(b)(ii) and s 38(e) respectively.

1 1996 (1) SA 984 (CC), 1996 (1) BCLR 1 (CC) at para 233.2 At para 234. 3 1996 (4) SA 318 (E).4 At paras 164 and 165. 5 At 325E--F.6 Ahmadiyya Anjuman Ihaati-Islam Lahore (South Africa) & another v Muslim Judicial Council (Cape) & others

1983 (4) SA 855 (C) at 864E--F; South African Optometric Association v Frames Distributors (Pty) Ltd 1985 (3)SA 100 (O) at 103F--105C; Natal Fresh Produce Growers’ Association & others v Agroserve (Pty) Ltd & others1990 (4) SA 749 (N) at 758G--759D.

7 Transvaal Indian Congress v Land Tenure Advisory Board 1955 (1) SA 85 (W) at 89G; Ex parte NatalBottle-Store Keeping and Off-Sales Licensees Association 1962 (4) SA 273 (D) at 276C; African National Congress(Border Branch) & another v Chairman, Council of State of the Republic of Ciskei 1992 (4) SA 434 (Ck) at 442A--C;Teachers Association of South Africa v Pillay 1993 (1) SA 111 (D); Steel and Engineering Industries Federation &others v National Union of Metalworkers of South Africa (1) 1993 (4) SA 190 (T).

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8CAn extremely restrictive approach to the right of an association to represent the interestsof its members was adopted by Pickering J in Congress of Traditional Leaders of South Africav Minister for Local Government, Eastern Cape, & others.1 The applicant association appliedfor an order declaring certain legislation relating to local government unconstitutional andtherefore invalid. The court formed the view that the applicant’s essential complaint wasthat the legislation deprived traditional leaders of powers derived from earlier legislation,which powers were in some sense entrenched in substantive provisions of the interimConstitution.2 Despite the fact that the application involved a constitutional issue, the courtheld that the association did not have locus standi to represent the interests of the traditionalleaders who were its members because there was no claim based upon an alleged infringe-ment of the Bill of Rights, and IC s 7(4)(b)(ii) therefore did not apply. While it is correct that,strictly speaking, IC s 7(4) applies only in respect of infringements of the Bill of Rights, itis submitted that the decision is unacceptable because there are more reported cases in whichcourts allowed associations to represent their members than cases in which they did not,3 andthe court should have preferred the cases which reflect the principle contained in s 7(4)(b)(ii)in view of IC s 35(3), which directs courts to have due regard to the spirit, purport and objectsof the Bill of Rights4 in applying and developing the common law.5

(iii) The wider effect of FC s 38

It is important to note that FC s 38 applies only in actions claiming relief in respect of theinfringement of a right entrenched in FC Chapter 2. In all other matters the common-lawrules of standing continue to apply. It may legitimately be argued that the common-law rulesshould be liberalized in view of the provisions of s 39(2), which requires courts to have dueregard to the spirit, purport and objects of the Bill of Rights in the interpretation of anylegislation and the development of the common law or customary law.

In Wildlife Society of Southern African & others v Minister of Environmental Affairs andTourism of the Republic of South Africa & others6 Pickering J adopted an extremelyexpansive approach to standing, expressing the opinion that even at common law anassociation having as its main object the promotion of environmental conservation shouldhave locus standi to apply for an order compelling the state to comply with its obligationto enforce a conservation statute. The judge did not purport to be applying the provi-sions of IC s 35(3), the precursor to FC s 39(2), but this is nevertheless an excellentexample of the development of the common law in accordance with the principles of the Billof Rights.

1 1996 (2) SA 898 (Tk). It is interesting to compare the restrictive approach to locus standi in this matter withthe expansive approach to locus standi adopted by the same judge in Wildlife Society of Southern Africa & othersv Minister of Environmental Affairs and Tourism of the Republic of South Africa & others 1996 (3) SA 1095 (Tk).See below, § 8.2(b)(iii).

2 At 902A--C.3 See above, 8-8B nn 6 and 7.4 Section 7(4)(b)(ii) is part of Chapter 3 of the interim Constitution.5 See § 8.2(b)(iii) below.6 1996 (3) SA 1095 (Tk).

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(c) Standing in American law

8DThe American courts have generally adopted a restrictive approach to standing, requiring theplaintiff to demonstrate personal injury sustained as a consequence of the wrong alleged.With regard to constitutional issues, this approach dates back to the decision in Frothinghamv Mellon,1 reported in 1923, in which the plaintiff challenged the validity of a statute on thebasis that its effect was to take her property under the guise of taxation, without due processof law. The Supreme Court held that, in addition to establishing the invalidity of the statute,the plaintiff had to show that she had sustained or was in danger of sustaining some directinjury as a result of the enforcement of the statute, and not merely that she suffered in someindefinite way in common with other people. In 1968 the Supreme Court opened the doorto taxpayer actions to a limited extent when, in Flast v Cohen,2 it allowed a constitutionalchallenge where the taxpayer could establish that the enactment exceeded specific constitu-tional limitations imposed upon the exercise of the congressional taxing and spending power,and not that the enactment was generally beyond the powers delegated to Congress.3 Insubsequent cases the Supreme Court has limited the application of the Flast principle, to theextent that it has been referred to as a ‘dead letter’.4

The Supreme Court has thus maintained a restrictive attitude towards standing inconstitutional cases. In Valley Forge Christian College v Americans United for Separation ofChurch and State it held that as an ‘irreducible minimum’ a litigant is required to demonstratesome actual or threatened injury personally suffered, that the injury can be traced to the

1 262 US 447 (1923). The first reference to the requirement of standing in a Supreme Court opinion has beentraced to Mississippi & Mo R v Ward 67 US (2 Black) 485 at 491, 17 LEd 311 (1863): Schnurer ‘More than anIntuition, Less than a Theory: Toward a Coherent Doctrine of Standing’ (1986) 86 Columbia LR 564.

2 392 US 83 (1968).3 Homburger ‘Private Suits in the Public Interest in the United States of America’ (1974) 23 Buffalo LR 243 at

396--7 criticizes the artificial result of this decision, which he attributes to the reluctance of the court to accept theprinciple of a public interest action, while wanting to reach the merits of the case.

4 Schnurer op cit 566. See for instance United States v Richardson 418 US 166, 94 SCt 2940 (1974), in whichPowell J urged that the standing doctrine should be used to bar ‘public interest’ suits brought by litigants who couldnot distinguish themselves from all taxpayers or all citizens.

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challenged action, and that the injury is redressable by a decision of the court.1 Apart fromthese injury-related requirements, the Supreme Court enumerated three other factors whichmay be taken into account when standing is in issue.2 First, standing will be denied where alitigant presents ‘generalized grievances’ shared by a wide section of the public which wouldbe more appropriately addressed by the representative branches of government.3 Secondly,the courts will refuse to hear a plaintiff who presents a claim based on the rights or interestsof third parties.4 Thirdly, where the plaintiff does not present a claim falling within the ‘zoneof interests’ intended to be protected or regulated by the statute or constitutional guaranteein question, standing may be found to be lacking.5

9ORIGINAL SERVICE, 1996 The Warren court, which decided the Flast case, justified the standing requirement on thebasis that a litigant with a personal stake in the lawsuit assured ‘that concrete aversenesswhich sharpens the presentation of issues upon which the court so largely depends forillumination of difficult constitutional questions’.6 More recently, the Burger court held thatthe standing doctrine was ‘built on a single basic idea ---- the idea of separation of powers,’recognizing ‘the proper ---- and properly limited ---- role of the courts in a democraticsociety’.7 Commentators have questioned these rationales and have accused the court of usingthe standing doctrine to restrict access to the courts.8

1 454 US 464 at 472, 102 SCt 752 (1982). Applied in Allen v Wright 468 US 737 at 751, 104 SCt 3315 (1984), inwhich the parents of black school children were denied standing to challenge Internal Revenue Service guidelines whichenabled racially discriminatory private schools to obtain tax exempt status. The court found that the plaintiffs had metthe personal injury requirement, but failed to show that their injuries were traceable to the Internal Revenue Service.

Initially the American courts required ‘legal interest’ rather than ‘injury’. In Association of Data ProcessingService Organizations v Camp 397 US 150, 90 SCt 827 (1970) the Supreme Court adopted a test of ‘injury in fact’,which requires the plaintiff to establish particularized injury, in place of the ‘legal interest’ test. Nichol ‘RethinkingStanding’ (1984) 72 California LR 68 at 71--85 critically examines the injury and redressability requirements.

2 Valley Forge Christian College v Americans United for Separation of Church and State 454 US 464 at 474--5,(1982).

3 Nichol ‘Rethinking Standing’ (1984) 72 California LR 68 at 97 correctly categorizes this an issue ofjusticiability of the claim rather than standing.

4 See Nichol ‘Rethinking Standing’ (1984) 72 California LR 68 at 95--6; Henry P Monaghan ‘Third PartyStanding’ (1984) 84 Columbia LR 277.

5 The ‘zone of interests’ test inquires whether the legislature intended that a person in the plaintiff’s positionshould have a right of action in the event of a violation of the statute in question.

6 Flast v Cohen 392 US 83 at 99, 88 SCt 1942 (1968).7 Allen v Wright 468 US 737 at 752, 104 SCt 3315 (1984).8 See Mark V Tushnet ‘The Sociology of Article III: A Response to Professor Brilmayer’ (1980) 93 Harvard LR

1698; Richard H Fallon Jr ‘Of Justiciability, Remedies, and Public Law Litigation: Notes on the Jurisprudence ofLyons’ (1984) 59 New York University LR 1; Nichol ‘Rethinking Standing’ 72 California LR 68; Chesley P Erwin Jr‘Alienated Justice: Rethinking Justiciability on the Occasion of the Bicentennial of the US Constitution’ (1988) 22New England LR 561.

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(d) Standing in Canadian law

Canada inherited the principle of English law that the Attorney General is the guardian ofthe public interest and only the Attorney General has standing to bring proceedings tovindicate the public interest. Such proceedings can either be brought at the instance of theAttorney General, or the Attorney General can consent to a private litigant bringing a ‘relatoraction’ in the name of the Attorney General.1 The Supreme Court of Canada has recognizedthat the Attorney General, being a member of the government,2 will generally be disinclinedto challenge the validity of legislation and has created a discretionary rule of standing whichis applied when an individual challenges the constitutionality of legislation by which s/he isnot personally affected. This rule was developed in a trilogy of decisions.10 In the first of these cases, Thorson v Attorney General of Canada,3 the plaintiff attackedthe Official Languages Act,4 alleging that he and all taxpayers were prejudiced by illegalexpenditure incurred in the implementation of the Act. A request by Thorson to the AttorneyGeneral to take proceedings to test the validity of the Act had been declined. Thorson’sstanding to challenge the legislation was put in issue because he had not alleged or provedthat he had been prejudiced by the statute more than any other taxpayer.5 The majority of thecourt found that because the Official Languages Act was declaratory and directory, creatingno offences and imposing no penalties, no individual could be exceptionally prejudiced byit, which meant that, on the conventional approach to standing, its validity was immune fromchallenge if the Attorney General declined to take action or permit a relator action. Laskin Jsaid that it would be cause for alarm if the legal system provided no route by which theconstitutionality of a statute could be brought before the courts. The court held that Thorsonhad standing on the ground that constitutionality of legislation had always been regarded asa justiciable issue and should not be kept from being adjudicated by reason of the fact thatthe plaintiff had no greater interest than any other taxpayer.

In Nova Scotia Board of Censors v McNeil 6 legislation which authorized the Nova ScotiaBoard of Censors to prohibit the exhibition of films was challenged. It was argued that theThorson decision was not applicable because the legislation in issue was regulatory, filmexhibitors being subject to penalties for non-compliance. A film exhibitor would clearly havestanding, but the plaintiff was not an exhibitor ---- he was a newspaper editor who objectedto the banning of the film Last Tango in Paris. The court refused to restrict its discretion togrant standing to situations in which the legislation challenged was declaratory and granted

1 Peter W Hogg Constitutional Law of Canada 3 ed (1992) sec 56.2(b).2 The Attorney General in Canada holds an office similar to the South African Minister of Justice and should not

be equated with a South African Attorney-General.3 (1974) 43 DLR (3d) 1, [1975] 1 SCR 138. 4 RSC 1970, c 0-2.5 It was an established principle of Canadian law that an individual who was exceptionally prejudiced by a statute

could challenge its validity: see Smith v Attorney General of Ontario [1924] SCR 331, 3 SLR 189.6 (1975) 55 DLR (3d) 632, [1976] 2 SCR 265.

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standing, taking into account that since the statute had not been challenged by the exhibitors,and the Attorney General had declined to take action, there was no practical way in whichthe public’s interest in what films it could see could be translated into a constitutionalchallenge. In exercising its discretion to grant standing the court stressed two factors: first,that the case raised a serious and substantial constitutional issue which, though justiciable,might never be litigated if standing were denied; secondly, that members of the public,including the applicant, had a ‘real stake’ in the validity of the legislation because it directlyaffected them by determining what films they could view.11 In the third of the trilogy, Minister of Justice of Canada v Borowski,1 the plaintiff claimeda declaration that provisions of the Criminal Code of Canada, which permitted abortion undercertain circumstances, were inoperative because they were in conflict with the right to lifeas declared in the Canadian Bill of Rights. The only interest alleged by the plaintiff was thathe was a ‘concerned citizen’ who wanted the issue to be litigated. The court granted himstanding, holding that ‘in a suit seeking a declaration that legislation is invalid, if there is aserious issue as to its invalidity, a person need only show that he is affected by it directly orthat he has a genuine interest as a citizen in the validity of the legislation and that there is noother reasonable and effective manner in which the issue may be brought before the Court’.The court thus expounded a test for standing which considerably extended the principledeveloped in the two previous cases, requiring no more than a plaintiff with a ‘genuineinterest’.2 This test was subsequently extended to a non-constitutional challenge to thestatutory authority for an administrative action.3

(e) Standing in Indian law

Article 32 of the Indian Constitution expressly grants a right to approach the SupremeCourt to provide a remedy for the breach of any of the fundamental rights guaranteed.Early judgments adopted the traditional approach to standing, insisting that a person whochallenged legislation or action on the basis of the Constitution must be personally affected.4

This prevented the enforcement of the rights of the poor and disadvantaged, who were unableto approach the court.5 In 1976 the first indication of a change of attitude became apparentwhen the Supreme Court declared that the plea of ‘no locus standi’ would not necessarilynon-suit an interested public body which had brought a wrong-doer before court.6

1 130 DLR (3d) 588, [1981] 2 SCR 575.2 Laskin CJ, the judge who had delivered the majority decision in Thorson and the unanimous decision in McNeil,

now wrote the judgment for the minority, holding that Borowski had ‘no judicially cognizable interest’ in the matterraised.

3 Finlay v Minister of Finance of Canada [1986] 2 SCR 607.4 See Charanjit Lal v Union of India AIR 1951 SC 41.5 See Mr Justice Bhagwati’s address to the Commonwealth Lawyers’ Association in 1986, published in (1986)

2 The Commonwealth Lawyer 61.6 Maharaj Singh v Uttar Pradesh AIR 1976 SC 2602 at 2609. See also Mumbai Kangar Subha v Abdulbhai AIR

1976 SC 1455.

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12 From that time, numerous public interest actions were initiated by individuals and socialaction organizations.1 In Gupta v Union of India 2 Bhagwati CJ (as he then was) clearlyexpressed the principle which the court had adopted with regard to standing when he heldthat any member of the public could approach the court for relief where a legal wrong orlegal injury had been caused to a person or class of persons by reason of violation of anyconstitutional or legal right and such person or class of persons was unable to approach thecourt personally because of poverty, helplessness, disability, or a socially or economicallydisadvantaged position.3 In addition to accepting the concept of representational or surrogatestanding the court accepted the concept of public interest standing in the wider sense in thatit held that where a state acts in violation of a constitutional or statutory obligation whichresults in injury to the public interest, an individual should be able to appraise the court ofsuch wrongdoing.4 To deny such access, held Bhagwati CJ, would be to leave the observanceof the law to the ‘sweet will’ of the authority bound by it, and to render the promise of judicialreview but a ‘teasing illusion’.5 This principle was reaffirmed in Wadhwa v State of Bihar,6

in which it was held that every citizen has a right to insist that s/he is governed by lawsmade in accordance with the Constitution. It was alleged that the Govenor of Bihar hadre-promulgated ordinances, which had been made while the legislature was not in session,instead of having them replaced by Acts of the legislature, as required by the Constitution.Bhagwati CJ held that Dr Wadhwa had locus standi to vindicate the public interest byensuring that constitutional legality and propriety were observed.7

8.3 RIPENESS

The doctrine of ripeness prevents a party from approaching a court prematurely at a timewhen s/he has not yet been subject to prejudice, or the real threat of prejudice, as a result ofthe legislation or conduct alleged to be unconstitutional.

(a) Ripeness in South African law

The doctrine of ripeness was employed by our courts as long ago as 1906 in AfricanPolitical Organization and The British Indian Association v Johannesburg Municipality.8

1 Cassels ‘Judicial Activism and Public Interest Litigation in India: Attempting the Impossible’ (1989) 37American Journal of Comparative Law 495 at 497.

2 (1982) 2 SCR 365 at 520, AIR 1982 SC 149.3 At 189. This principle was reaffirmed in Bandhua Mukti Morcha v Union of India AIR 1984 SC 802 at 813.4 The significance of the distinction of surrogate standing and public interest standing is discussed by P P Craig

& S L Deshpande ‘Rights Autonomy and Process: Public Interest Litigation in India’ (1989) 9 Oxford Journal ofLegal Studies 356 at 360--1. See also Clark D Cunningham ‘Public Interest Litigation in Indian Supreme Court:A Study in the Light of American Experience’ (1987) 29 Journal of the Indian Law Institute 494 at 498--503.

5 At 191. 6 AIR 1987 SC 579.7 At 582. See Craig & Deshpande ‘Rights, Autonomy and Process: Public Interest Litigation in India’ (1989) 9

Oxford Journal of Legal Studies 356 at 365.8 1906 TS 962. See also Rossouw v Minister of Mines and Minister of Justice 1928 TPD 741 at 747.

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The plaintiffs sought an order declaring ultra vires a regulation in terms of which personsof colour were prohibited from travelling on the municipal tramway service. The courtdismissed the application on the grounds that there was no allegation that any of the personsrepresented by the plaintiff associations had been refused access to the tramcars operated bythe respondent. The inequity which results from the application of the doctrine in circum-stances such as this is that those persons governed by the legislation are required to breakthe law or subject themselves to the indignity of being refused access to the facility beforethe court will allow them to challenge the validity of the legislation.13REVISION SERVICE 1, 1996Not all South African courts have adopted this attitude. In Transvaal Coal OwnersAssociation v Board of Control1 Gregorowski J said the following:

‘It is perfectly true that usually the court does not solve hypothetical problems and abstract questionsand declaratory actions cannot be brought unless the rights in question in such action have actuallybeen infringed. But this is quite a different matter. Here the applicants are condemned to do certainthings or to abstain from doing certain things which otherwise they are at perfect liberty to do orto abstain from doing. If they contravene the order they are liable to fine and imprisonment. If theorder is invalid their right and freedom of action are infringed, and it is not at all convincing to sayyou must first contravene the order and render yourself liable to fine and imprisonment, and thenonly can you test the validity of the order, and have it decided whether you are liable to the penaltyor not.’

Similar decisions were made in Gool v Minister of Justice2 and Afdelingsraad vanSwartland v Administrateur, Kaap.3 Baxter, discussing other administrative-law cases inwhich ripeness has been an issue, suggests that the criterion by which ripeness is to bemeasured is whether prejudice has already resulted or is inevitable, irrespective of whetherthe action is complete or not.4

Cabinet of the Transitional Government for the Territory of South West Africa v Eins5 isa constitutional case in which the Appellate Division purported to refuse consideration of themerits on the ground that the applicant lacked locus standi, but in fact it was clearly thedoctrine of ripeness which was being applied. Eins applied for an order declaring legislationinvalid in terms of the South West Africa Constitution Act 39 of 1968. The legislation wasan Act passed by the Legislative Assembly, which authorized the Transitional Cabinet toprohibit certain persons from being within the territory or order them to be removed fromthe territory if it had reason to believe that such persons endangered, or were likely toendanger, the security of the territory or its inhabitants or the maintenance of public order,or that such persons engendered, or were likely to engender, a feeling of hostility betweenmembers of the different population groups of the territory.6 The persons who could beprohibited or removed in terms of this legislation were persons who were not born in the

1 1921 TPD 447 at 452. 2 1955 (2) SA 682 (C).3 1983 (3) SA 469 (C). 4 Lawrence Baxter Administrative Law at 720.5 1988 (3) SA 369 (A).6 Residence of Certain Persons in South West Africa Regulation Act 33 of 1985, s 9.

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territory and were not rendering service in the defence force or employed by the government.1

Eins alleged that he was one of thousands of people who were permanent residents of SouthWest Africa, but who were not born in the territory and could therefore be prohibited frombeing in the territory or removed from the territory in terms of the Act. It was submitted thatthe Act deprived Eins, and obviously others in his position, of the fundamental right to residein South West Africa, which was guaranteed by the Constitution, and supplanted such rightwith a licence revocable in the discretion of the Cabinet of the Transitional Government ofSouth West Africa.2 The court of first instance declared the Act to be unconstitutional, invalidand unenforceable for want of compliance with the Bill of Fundamental Rights incorporatedin the South West Africa Legislative and Executive Authority Establishment ProclamationR101 of 1985, enacted in terms of s 38 of the South West Africa Constitution Act 39 of 1968.On appeal, the Appellate Division refused to consider the merits of the application, holdingthat Eins had no locus standi to claim the relief because there was no evidence that any actionhad been taken against him, or that the Cabinet intended to take any action against him in termsof the Act. This is a classic example of the blurring of the doctrines of standing and ripeness.3

14 The inclusion of s 7(4) in the interim Constitution indicates that the drafters intended thatprocedural barriers should not stand in the way of the courts’ deciding constitutional issues.In view of this, it is suggested that the courts should not refuse to consider the merits ofconstitutional challenges merely because action has not been taken against the plaintiff.Where there is a real threat of a constitutional irregularity the court should be prepared tohear the matter at the instance of any plaintiff who brings the issue before it.

In Ferreira v Levin NO & others the applicants challenged the examination process ofs 417(2)(b) of the Companies Act as an infringement of their fair trial rights since the sectionobliged them to give potentially incriminating answers which could be used in a futurecriminal proceeding. A minority of the court was of the view that the challenge was toohypothetical to suffice for standing under IC s 7(4)(b)(i) because there was no evidence thatthe applicants were likely to face criminal charges.4 However, for the majority of the courtripeness was not an issue because the applicants were being faced with an immediate demandto give potentially incriminating answers to questions, and in terms of the statute they facedimprisonment if they refused to provide these answers. They could not in those circumstancesbe expected to expose themselves to prosecution under the statute before they were affordedan opportunity of challenging its constitutionality.5

1 Residence of Certain Persons in South West Africa Regulation Act 33 of 1985, s 9(1)(a).2 At 386G--I. 3 See below, § 8.5.4 Ferreira v Levin NO & others 1996 (1) SA 984 (CC), 1996 (1) BCLR 1 (CC) at para 41 (Ackermann J), at paras

199 and 205 (Kriegler J) and at paras 231--2 (O’Regan J). In the special circumstances of the case O’Regan Jnevertheless found that the public interest in determining the constitutionality of the section rendered the issue ripefor hearing and afforded the applicants standing under s 7(4)(b)(v). See paras 233--7.

5 Ferreira v Levin NO & others (supra) at paras 162--4.

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(b) Ripeness in American law

14A14BThis doctrine is well developed in American law.1 An example of its application in a matterconcerning the validity of legislation is United Public Workers v Mitchell,2 in which federalemployees challenging a statute which banned them from being involved in politicalactivities were denied relief because they had not yet violated the statute. The same principleapplies where an administrative practice, programme or policy is challenged as beingunconstitutional. In Laird v Tatum3 anti-war activists who challenged a programme ofsurveillance of civilians by the United States Army were refused declaratory and injunctiverelief because they had not yet suffered any injury in consequence of the surveillance andcould assert no more than a fear that the army might someday misuse the information

1 See Tribe American Constitutional Law 77--82.2 330 US 75, 67 SCt 556 (1947).3 408 US 1, 92 SCt 2318 (1972).

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gathered to their detriment.1 In deciding whether to apply the doctrine as a bar to considera-tion of the merits of a case the courts have taken into account ‘the hardship to the parties ofwithholding court consideration’.2

15 The United States Supreme Court has held that the rationale of the ripeness requirementis to enable courts to avoid becoming entangled in abstract disagreements with other organsof government by refusing premature adjudication.3 It has also described the ripeness inquiryas a ‘threshold’ determination designed to measure whether the ‘actual controversy’ require-ment of Article III of the Constitution is met.4

(c) Ripeness in Canadian law

REVISION SERVICE 2, 1998Hogg5 states that there do not seem to be any Canadian cases that are unequivocal precedentsfor the doctrine of ripeness. He expresses the opinion that a court should not decide a casethat is unripe for adjudication, but would have a discretion to do so.

8.4 MOOTNESS

While the ‘ripeness’ doctrine is concerned with cases which are brought too early, the‘mootness’ doctrine is relevant to cases which are brought, or reach the hearing stage, toolate, at a time when the issues are no longer ‘live’. A matter will be moot where the disputebetween the parties has been resolved or the prejudice, or threat of prejudice, to the plaintiffno longer exists.

(a) Mootness in South African law

The doctrine of mootness does not appear to have been applied in South African law priorto the advent of the interim Consitution.6 One explanation for this may be that even wherean issue had become moot the court usually decided the merits for the purpose of determiningwhich party was to pay the costs.7

1 In a dissenting judgment Justice Douglas, with whom Justice Marshall concurred, said that a person in theposition of the applicants (respondents in the appeal) should not have to wait to sue until he loses his job or untilhis reputation is defamed before he is entitled to sue because that would in effect immunize from judicial scrutinythe alleged unconstitutional conduct.

2 Pacific Gas & Electric Co v State Energy Resources Conservation and Development Commission 461 US 190at 201, 103 SCt 1713 (1983), quoting Abbott Laboratories v Gardner 387 US 136 at 149, 87 SCt 1507 (1967).

3 Abbott Laboratories v Gardner 387 US 136 at 148, 87 SCt 1507 (1967).4 See Gene R Nichol Jr ‘Ripeness and the Constitution’ (1987) 54 University of Chicago LR 153 at 163.5 Hogg Constitutional Law of Canada sec 56.4.6 The principle that the court will not decide academic issues which will not have binding effect on the parties

is, however, well established in South African law: Masuku & another v State President & others 1994 (4) SA 374(T) at 380I, applying Ex parte Nell 1963 (1) SA 754 (A) at 760B--C.

7 Note, however, that in 1993 the Supreme Court Act 59 of 1959 was amended to enable a court of appeal to strikea matter off the roll where it has become moot. Section 21A was inserted to provide that a court of appeal (otherthan an inferior court) which is of the opinion that the questions of fact and other considerations relevant to the appealare of such a nature that, even if judgment is given or an order is made which favours the person who appeals, suchjudgment or order will have no practical effect or result, may strike the appeal off the roll. If an appeal is so struckoff the roll, the striking-off shall be regarded as the judgment or order of that court in the appeal concerned. Before

[continued on page 8--16]

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16 It seems, however, that mootness will be a possible bar to relief in constitutional caseswhere the constitutional issue is not merely moot as between the parties but is also mootrelative to society at large. In J T Publishing (Pty) Ltd & another v Minister of Safety andSecurity & others1 the Constitutional Court declined on appeal to make an order declaringthat provisions of the Publications Act2 and the Indecent or Obscene Photographic MatterAct3 were unconstitutional and invalid, because it held that the issue had been rendered moot.The applicant had applied only for an order of invalidity and had not sought any additionalrelief related to a specific incident involving the Publications Act or the Indecent or ObscenePhotographic Matter Act. After the application was dismissed in the Supreme Court,legislation was tabled to repeal the two impugned laws. By the time the Constitutional Courtgave its judgment on appeal this legislation had been passed by Parliament as the Films andPublications Act,4 but had not yet been brought into effect by the President. In thesecircumstances the Constitutional Court refused to grant the order sought by the applicant.Didcott J stated the following:

‘. . . [T]here can hardly be a clearer instance of issues that are wholly academic, of issues excitingno interest but an historical one, than those on which our ruling is wanted have now become. Therepeal of the Publications Act has disposed altogether of the question pertaining to that. And anyaspect of the one about the Indecent or Obscene Photographic Matter Act which our previousdecision on it did not answer finally has been foreclosed by its repeal in turn. I therefore concludethat we should decline at this stage to grant a declaratory order on either topic.’5

It is important to note that the interim Constitution6 specifically provided that if anydivision of the Supreme Court disposed of a matter in which a constitutional issue had beenraised and such court was of the opinion that the constitutional issue was of such publicimportance that a ruling should be given thereon, it could, notwithstanding the fact that thematter had been disposed of,7 refer such issue to the Constitutional Court for decision. Thisprovision highlighted the distinction between mootness as to parties and mootness relativeto society at large. It was accordingly clear that, where a decision on an issue had implicationsfor the public or members thereof, the Constitutional Court could decide the issue despitethe fact that it was moot with regard to the parties.

striking such an appeal off the roll the court is required to hear the parties involved in the appeal or consider thewritten representations of such parties. Where a matter has been struck off the roll the court may consider thequestions of law and of fact and the other considerations which are relevant to the appeal for the purpose of makingan appropriate order as to costs, including the costs pertaining to the original decision against which an appeal waslodged.

1 1997 (3) SA 514 (CC), 1996 (12) BCLR 1599 (CC). 2 Act 42 of 1974.3 Act 37 of 1967. 4 Act 65 of 1996.5 J T Publishing at para 17. The case illustrates the dangers of concluding prematurely that a matter has become

moot. The decision of the Constitutional Court was handed down on 21 November 1996. At the time of going toprint, in January 1998, the Films and Publications Act had still not been brought into operation. Thus the ‘moribundand futureless provisions’ which the Constitutional Court chose not to declare invalid continued to authorizeunconstitutional censorship for more than a year after the court had decided that their validity was a moot issue.

6 Section 102(8). See further above, Loots & Marcus ‘Jurisdiction, Powers and Procedures of the Court’ § 6.4(d).There is no equivalent to s 102(8) in the final Constitution. The final Constitution does not, itself, regulate proceduralmatters, but leaves this to national legislation (s 171).

7 As to the meaning of the expression ‘disposes of a matter’, see Du Plessis & others v De Klerk & another 1996(3) SA 850 (CC), 1996 (5) BCLR 658 (CC) at paras 26--8.

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(b) Mootness in American law1

17The classic case in American jurisprudence is DeFunis v Odegaard.2 DeFunis was deniedadmission as a first-year law student at the University of Washington Law School, a stateinstitution. He challenged this decision, contending that the procedures and criteria employedby the Law School Admission Committee discriminated against him on account of his racein violation of the equal protection clause of the Fourteenth Amendment. The trial courtgranted a mandatory injunction commanding the Law School to admit him, which it did. Onappeal this judgment was reversed by the Washington Supreme Court, which held that theadmissions policy was not unconstitutional. DeFunis then petitioned the United StatesSupreme Court for a writ of certiorari, which resulted in a stay of the judgment of theWashington Supreme Court pending the final disposition of the case. By the time the mattercame before the United States Supreme Court for decision DeFunis had registered for hisfinal quarter in law school. The court held that it could not, consistently with the limitationsof Article III, consider the substantive constitutional issues raised by the parties becauseDeFunis would complete his law school studies regardless of the decision of the court.Justice Brennan, delivering a dissenting judgment, highlighted the unfortunate effect ofdisposing of the case as moot, which, he said, did not serve the public interest.

‘The constitutional issues which are avoided today concern vast numbers of people, organizations,and colleges and universities, as evidenced by the filing of twenty-six amicus curiae briefs. Fewconstitutional questions in recent history have stirred as much debate, and they will not disappear.They must inevitably return to the federal courts and ultimately again to this court.’

ORIGINAL SERVICE, 1996 In certain circumstances3 courts will exercise a discretion to decide a case which isseemingly moot, for instance where the result of refusing to decide the issues would be tocreate a situation ‘capable of repetition, yet evading review’. An example is Roe v Wade,4 inwhich a pregnant woman’s class action challenging the constitutionality of state anti-abortionstatutes reached the Supreme Court only post partum. The court observed that ‘[p]regnancyoften comes more than once to the same woman, and in the general population, if man is tosurvive, it will always be with us’.5 The court also took into account that the term of pregnancyis shorter than the period of gestation required to get a matter before the United StatesSupreme Court; therefore review would never be possible if the court were to insist upon theplaintiff still being pregnant.

1 See Tribe American Constitutional Law 82--93.2 416 US 312, 94 SCt 1704 (1974).3 See Tribe American Constitutional Law 84.4 410 US 113, 93 SCt 705 (1973).5 At 125.

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(c) Mootness in Canadian law

Minister of Justice of Canada v Borowski 1 was eventually disposed of on the basis that ithad become moot. Once the plaintiff’s standing had been upheld by the Supreme Court ofCanada the case proceeded to the merits, but after it had been decided by the SaskatchewanCourt of Appeal and leave had been granted to appeal to the Supreme Court of Canada, allthe abortion provisions of the Criminal Code were struck down in another case.2

Mr Borowski wanted to continue his proceedings because this meant that non-therapeuticabortions as well as therapeutic abortions were now permitted, but the Supreme Court ofCanada refused to decide the case, holding that there was no longer a ‘live controversy’ toresolve because the ‘substratum of Mr Borowski’s appeal had disappeared’.18 In the same year the court exercised its discretion to decide another abortion case despitethe fact that it had become moot. In Tremblay v Daigle3 the plaintiff relied on the constitu-tional right to life of a foetus to claim an injunction against his girlfriend to restrain her fromhaving an abortion. By the time the case was argued the defendant had had the abortion,thereby rendering the case moot. The court denied the injunction, having exercised itsdiscretion to decide the case because it believed that it was important to remove the threat ofsuch injunctive proceedings in the interest of other pregnant women. Hogg indicates that theCanadian Supreme Court has more often than not exercised its discretion to decide is-sues which have become moot, provided that it is persuaded that there is a serious legalquestion to be decided and that the question, despite its mootness, would be properly arguedon both sides.4

8.5 DELINEATING THE DOCTRINES OF STANDING, RIPENESS AND MOOTNESS

It seems clear that the standing doctrine should be concerned with which person may raisea particular issue, whereas the ripeness and mootness doctrines are concerned with whenissues may be raised; however, the dividing lines between the doctrines are often fuzzy. In adecision which turns on ripeness or mootness the court will often hold that the plaintiff hasno standing. In South African law this is illustrated by the Eins case.5 In American law thisis illustrated by the case of City of Los Angeles v Lyons,6 in which a plaintiff who had beenchoked to unconsciousness by an officer of the Los Angeles Police Department claimed aninjunction against the police department’s alleged practice of applying unnecessary andlife-threatening choke-holds. The court held that the plaintiff lacked standing to claim such

1 130 DLR (3d) 588, [1981] 2 SCR 575 (discussed above, § 8.2(d)).2 R v Morgentaler (No 2) (1988) 44 DLR (4th) 385, [1988] 1 SCR 30.3 62 DLR (4th) 634, [1989] 2 SCR 530.4 Hogg Constitutional Law of Canada sec 56.3(c).5 Cabinet of the Transitional Government for the Territory of South West Africa v Eins 1988 (3) SA 369 (A)

(discussed above, § 8.3(a)).6 103 SCt 1660 (1983).

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relief. It has been suggested that the effect of this decision is that the standing doctrine hasdisplaced the more flexible doctrine of mootness as the applicable justiciability hurdle inlitigation predicated on past injuries.1 The reason why the doctrine of mootness is moreflexible is that, as explained above, a court may exercise a discretion to hear a case which ismoot, whereas a finding that the plaintiff does not have standing will be a bar to the matterbeing heard.

REVISION SERVICE 2, 199819 The fact that IC s 7(4) and FC s 38 virtually preclude any opportunity for a court to refuseto hear a matter on the grounds that the plaintiff does not have standing may be advanced asa reason for retaining the doctrines of ripeness and mootness to give the courts someflexibility. While there may be some advantage in retaining flexibility, it is submitted thatthe courts should never exercise their discretion against hearing a matter if there is any publicbenefit to be derived from a decision being made.

1 Richard H Fallon Jr ‘Of Justiciability, Remedies, and Public Law Litigation: Notes on the Jurisprudence ofLyons’ (1984) 59 New York University LR 1 at 6. See also Nichol ‘Ripeness and the Constitution’ (1987) 54 Universityof Chicago LR 153 at 172.

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