14
Judgment No. CCZ 2/18
Constitutional Application No. CCZ 86/15
fundamental human rights. As a principle of good governance, it is not simply interpretative. Good
governance means putting in place measures, including legislative measures, that advance and
protect public interest. The Constitution requires that good governance be carried out in terms of
laws enacted by the institution vested with the power to make the necessary laws in compliance
with the fundamental principle of governance under the rule of law. Section 3(2)(k) of the
Constitution requires that the principle be borne in mind by the State and all institutions of
government at every level when action that has the potentiality of impairing vested rights is
contemplated or taken.
The doctrine of “due respect for vested rights” has long been recognised as the progenitor
of the modern law of substantive protection of the law or substantive due process. The modern
jurist has essentially long moved beyond being concerned with retrospectivity. He or she treats
retrospective application for practical purposes no differently from any other legislative
determination in assessing whether there has been due observance of the requirements of
permissible limitation of the exercise of legislative power prescribed by the Constitution. In other
words, the question is whether there has been a violation of substantive protection of the law in
the enactment of retrospective legislation that impairs vested rights. The question is never, why
has the statute been retrospectively applied?
This is not a case of retrospective impairment of rights. It is a case of retrospective
imposition of a new obligation with respect to transactions already completed. The acts of
terminating contracts of employment on notice had already been completed. The transitional
provision did not make the termination of employees on notice which was lawful when it occurred
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