MADLANGA J
considerations of justice and equity. That is indeed very wide. It may come in different
shapes and forms dictated by the many and varied manifestations in respect of which
the remedy may be called for. The odd instance may require a singularly creative
remedy.174 In that case, the court should be wary not to self-censor. Instead, it should
do justice and afford an equitable remedy to those before it as it is empowered to. In
the words of Cameron J, “the bogeyman of separation of powers concerns should not
cause courts to shirk from [their] constitutional responsibility”.175
[144] The infringement of the privacy right through the interception of individuals’
communications is egregiously invasive. The suspension of the declaration of invalidity
means that this situation will persist for a while. And that is exacerbated by the fact
that – because of the complexity and wide-ranging nature of the required revision – the
period of suspension must be relatively long.176 So, the egregious invasion of the
privacy right will persist for some time to come. In those circumstances, justice and
equity dictate that the effect of the intrusive violation of the privacy right be blunted by
granting appropriate interim relief.
Indeed, in Hoffman this Court held that in
determining appropriate relief, it must “carefully analyse the nature of the constitutional
infringement, and strike effectively at its source”.177
[145] Before considering the nature of interim relief, let me mention that I take the
view that there must be no interim relief in respect of the independence issue. The
objectionable facets in respect of this issue are not of such a nature that they may not be
endured for the period of suspension.
the legislative field which has been reserved by the Constitution, and for good reason, to the
Legislature.”
In Fose v Minister of Safety and Security [1996] ZACC 6; 1997 (3) SA 786 (CC); 1997 (7) BCLR 851 (CC) at
para 69 Ackermann J held that with regard to remedy “[t]he courts … are obliged to ‘forge new tools’ and shape
innovative remedies, if needs be”.
174
175
Mwelase v Director-General for the Department of Rural Development and Land Reform [2019] ZACC 30;
2019 (6) SA 597 (CC); 2019 (11) BCLR 1358 (CC) at para 51. See also Doctors for Life International v Speaker
of the National Assembly [2006] ZACC 11; 2006 (6) SA 416 (CC); 2006 (12) BCLR 1399 (CC) at para 200.
176
Compare Johncom Media Investments Limited v M [2009] ZACC 5; 2009 (4) SA 7 (CC); 2009 (8) BCLR 751
(CC) at para 37.
177
Hoffman v South African Airways [2000] ZACC 17; 2001 (1) SA 1; 2000 (11) BCLR 1211 (CC) at para 45.
75
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