facts? If we accede to the respondent’s submissions and
send the matter back to the Industrial Court without
determining the issue that is being canvassed, the applicant
is
entitled
to
and
would
certainly
again
raise
the
constitutional issue in defence. This would result in circuitous
and back-and-forth process that should not be countenanced
in litigation.
[13] Earlier on I mentioned that the merits of the matter are not
before us, and that we must consciously eschew venturing
into same. To do so would be in breach of the exclusivity
principle
which
is
now
entrenched
in
our
law.
A
determination that the doctrine of avoidance is applicable or
not cannot, in my view, be made without an evaluation of
the merits by this court, even if only cursorily.
[14] Perhaps more significantly, Section 151(2) (a) of the
Constitution places responsibility upon the High Court “to
enforce the fundamental human rights and freedoms
guaranteed by this Constitution” and “to hear and
determine any matter of a constitutional nature.”
What this suggests to me is that this court is enjoined to
embrace every opportunity to breathe life into this relatively
new constitution and give meaning to the rights that it
confers. To routinely uphold the doctrine of avoidance
11
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