Judgment No. CCZ 12/2015 12
Const. Application No. 79/14
children, they could not benefit personally from a declaration of unconstitutionality of any
legislation authorising child marriage.
The contention by the respondents that the applicants lack standing under
s 85(1)(d) of the Constitution is based on an erroneous view of the requirements of the rule.
The argument that the applicants were not entitled to approach the court to vindicate public
interest in the well-being of children protected by the fundamental rights of the child enshrined
in s 81(1) of the Constitution, overlooked the fact that children are a vulnerable group in society
whose interests constitute a category of public interest. Notwithstanding the allusion to acting
under s 85(1)(a) of the Constitution, the founding affidavit shows that the applicants believed
themselves to be acting in terms of s 85(1)(d) and had their hearts in that rule.
What the respondents accused the applicants of failing to allege is a fact required
to be alleged by a person acting in terms of s 85(1)(d) of the Constitution. Section 85(1)(d) of
the Constitution is based on the presumption that the effect of the infringement of a
fundamental right impacts upon the community at large or a segment of the community such
that there would be no identifiable persons or determinate class of persons who would have
suffered legal injury. The primary purpose of proceedings commenced in terms of s 85(1)(d)
of the Constitution is to protect the public interest adversely affected by the infringement of a
fundamental right. The effective protection of the public interest must be shown to be the
legitimate aim or objective sought to be accomplished by the litigation and the relief sought.
The rule of standing under s 85(1)(d) of the Constitution must be understood in
the context of its purpose and the objectives it is intended to achieve. Section 44 of the