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Judgment No. CCZ 2/18
Constitutional Application No. CCZ 86/15
under existing positive legislation which the Legislature was barred by the Constitution from
altering by retrospective application of the amendment. The effect of the argument was that the
transitional provision gives retrospective effect to legislation that impairs the applicants’ vested
rights and is therefore unconstitutional.
The principle of due respect for vested rights under s 3(2)(k) of the Constitution does not
prohibit retrospective civil legislation because it would have the effect of taking away or impairing
vested rights. It is one of the principles of good governance which bind the State and all institutions
and agencies of government at every level.
Section 3(2)(k) of the Constitution does not confer a fundamental right in itself. It is not
justiciable. In Minister of Home Affairs v National Institute for Crime Prevention and ReIntegration of Offenders (NICRO) and Ors 2005 (3) SA 280 (CC).
CHASKALSON CJ,
referring to
the founding values enunciated in section 1 of the Constitution of the Republic of South Africa,
said:
“21. The values enunciated in section 1 of the Constitution are of fundamental
importance. They inform and give substance to all the provisions of the Constitution. They
do not, however, give rise to discrete and enforceable rights in themselves. This is clear
not only from the language of section 1 itself, but also from the way the Constitution is
structured and in particular the provisions of Chapter 2 which contains the Bill of Rights.”
Only specific constitutional norms can confer effective rights on individuals or generally
have autonomous legal effect. That is not to say that the principle cannot be regarded as a source
of legal solutions. The principle has, of course, constitutional force. Section 3(2)(k) of the
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