Judgment No. CCZ 12/2015 23 Const. Application No. 79/14 In the main volume of ERASMUS SUPERIOR COURT PRACTICE Juta at A227 the learned authors considered the meaning of s 38(d) of the Constitution of the Republic of South Africa, 1996. Section 38(d) is in identical terms as s 85(1)(d) of the Constitution. The learned authors made the observation that there are important policy reasons why the new ground of standing introduced in s 38(d) should not be interpreted restrictively. The learned authors said the reason is that standing accorded to persons to act in the public interest is “much broader than the other grants of standing contained in s 38”. On the question whether a person challenging the constitutionality of legislation is required, under s 38(d) of the Constitution of the Republic of South Africa, to allege and prove infringement of a fundamental right of a particular person, the learned authors of ERASMUS SUPERIOR COURT PRACTICE said: “In terms of this subsection, Chapter 2 litigation may be undertaken by a person acting in the public interest. All an applicant under this paragraph need essentially establish is that (I) objectively speaking, the challenged rule or conduct is in breach of a right enshrined in Chapter 2, (II) the public has a sufficient interest in an order of constitutional invalidity, and (III) that the applicant is in fact acting in the public interest (rather than for his or her own interests or some, ulterior motive). As explained by O’REGAN J in Ferreira v Levin N O 1996(1) SA 984(CC) at para [235] there is no need to point to an infringement of, or threat to, the right of an individual person. This flows from the notion of acting in the public interest: the public will ordinarily have an interest in the infringement of rights generally, not particularly. Moreover, as ACKERMAN J explained, in proceedings concerning the validity of laws, the issue of whether the law is invalid or not does not depend on whether, at the moment when the issue is being considered, a particular person’s rights are threatened or infringed by the offending law or not. This is because laws which are inconsistent with the Constitution become invalid upon the commencement of the Constitution (in case of preconstitutional laws) or upon the date when they came into force (in the case of post– constitutional laws).”