Judgment No. CCZ 12/2015 14
Const. Application No. 79/14
The form and structure of s 85(1) shows that it is a product of the liberalisation
of the narrow traditional conception of locus standi. The traditional rule of standing gave a
right to approach a competent court for enforcement of a fundamental right or freedom to a
person who would have suffered direct legal injury by reason of infringement or threatened
infringement of his or her fundamental right or legally protected interest by the impugned
action of the State or public authority. Except for a case where a person was unable to
personally seek redress by reason of being under physical detention, no one could ordinarily
seek judicial redress for legal injury suffered by another person.
The object of s 85(1) of the Constitution is to ensure that cases of infringement
of fundamental rights which adversely affect different interests covered by each rule of
standing are brought to the attention of a court for redress. The object is to overcome the formal
defects in the legal system so as to guarantee real and substantial justice to the masses,
particularly the poor, marginalised and deprived sections of society. The fundamental principle
is that every fundamental human right or freedom enshrined in Chapter 4 is entitled to a full
measure of effective protection under the constitutional obligation imposed on the State. The
right of access to justice, which is itself a fundamental right, must be made available to a person
who is able, under each of the rules of standing, to vindicate the interest adversely affected by
an infringement of a fundamental right, at the same time enforcing the constitutional obligation
to protect and promote the right or freedom concerned.
The liberalisation of the narrow traditional conception of standing and the
provision of the fundamental right of access to justice compel a court exercising jurisdiction
under s 85(1) of the Constitution to adopt a broad and generous approach to standing. The
approach must eschew over reliance on procedural technicalities, to afford full protection to
Select target paragraph3
Add to table of contents