LOCUS STANDI
The right to approach a court, directly, seeking appropriate
relief in cases arising from alleged infringement of a fundamental human right
or freedom enshrined in Chapter 4 of the Constitution is given to the persons
specified under section 85(1) of the Constitution. Section 85(1) provides:
“85. Enforcement of fundamental human rights and
freedoms
(1) Any ...
LOCUS STANDI
The right to approach a court, directly, seeking appropriate
relief in cases arising from alleged infringement of a fundamental human right
or freedom enshrined in Chapter 4 of the Constitution is given to the persons
specified under section 85(1) of the Constitution. Section 85(1) provides:
“85. Enforcement of fundamental human rights and
freedoms
(1) Any of the following persons, namely –
(a) Any person acting in their own interests;
(b) Any person acting on behalf of another person who
cannot act for themselves;
(c) Any person acting as a member, or in the interests, of
a group or class of persons;
(c) Any person acting as a member, or in the interests, of
a group or class of persons;
(d) Any person acting in the public interest;
(e) Any association acting in the interests of its members;
is entitled to approach a court, alleging that a
fundamental right or freedom enshrined in this Chapter has been, is being, or
is likely to be infringed and the court may grant appropriate relief, including
a declaration of rights and an award of compensation.”
The applicants alleged that the fundamental rights of a
girl child to equal treatment before the law and not to be subjected to any
form of marriage enshrined in section 81(1) as read with section 78(1) of the
Constitution have been, are being and are likely to be infringed if an order
declaring section 22(1) of the Marriage Act [Chapter 5:11], and any other law
authorising child marriage, unconstitutional, was not granted by the Court.
What is in issue is the capacity in which the applicants
act in claiming the right to approach the court on the allegations they have
made.
In claiming locus standi under section 85(1) of the
Constitution, a person should act in one capacity in approaching a court and
not act in two or more capacities in one proceeding.
The respondents, correctly, submitted that, although the
applicants claimed to have been acting in their own interests in terms of section
85(1)(a) of the Constitution, the facts showed that they had failed to satisfy
the requirements of that rule. The rule requires that the person claiming the
right to approach the court must show, on the facts, that he or she seeks to
vindicate his or her own interest adversely affected by an infringement of a
fundamental right or freedom. The infringement must be in relation to himself
or herself as the victim or there must be harm or injury to his or her own
interests arising directly from the infringement of a fundamental right or
freedom of another person. In other words, the person must have a direct
relationship with the cause of action.
The first part of the rule of standing under section 85(1)(a)
of the Constitution needs no elaboration. Its content has constituted the
meaning of the traditional and narrow rule of standing with which any common
law lawyer is familiar. It is the rule which prompted CHIDYAUSIKU CJ to comment
in Mawarire v Mugabe NO and Others CC01-13….,:
“Certainly this Court does not expect to appear before it
only those who are dripping with the blood of the actual infringement of their
rights or those who are shivering incoherently with the fear of the impending
threat which has actually engulfed them. This Court will entertain even those
who calmly perceive a looming infringement and issue a declaration or
appropriate order to stave the threat, moreso under the liberal post-2009
requirements.”
That is the familiar rule of locus standi based on the
requirement of proof by the claimant of having been, or of being, a victim of
infringement or threatened infringement of a fundamental right or freedom
enshrined in Chapter 4 of the Constitution.
The second aspect of the rule is not so familiar. It needs
elaboration.
The Canadian cases of R v Big M Drug Mart Ltd (1985) 18 DLR (4th) 321 and
Morgentaler Smoling and Scott v R (1988) 31 CRR 1 illustrate the point that a
person would have standing under a provision similar to section 85(1)(a) of the
Constitution to challenge unconstitutional law if he or she could be liable to
conviction for an offence charged under the law - even though the
unconstitutional effects were not directed against him or her per se. It would
be sufficient for a person to show that he or she was directly affected by the
unconstitutional legislation. If this was shown, it mattered not whether he or
she was a victim.
In R v Big M Drug Mart Ltd (1985) 18 DLR (4th) 321, a corporation was allowed to
challenge the constitutionality of a statutory provision at a criminal trial on
the grounds that it infringed the rights of human beings and was accordingly
invalid. The corporation had been charged in terms of a statute which
prohibited trading on Sundays. It did not have a right to religious freedom.
The corporation was, nevertheless, permitted to raise the constitutionality of
the statute which was held to be in breach of the Charter on the Rights and
Freedoms (see Ferreira v Levin NO and Others 1996 (1) SA 984…,.). The
corporation had a financial interest in the form of profits made out of trading
on Sundays.
The concept used in section 85(1)(a) of the Constitution is
“own interests”, the broad meaning of which includes indirect interests such as
commercial interests.
The corporation alleged that the statute was
unconstitutional because it infringed the fundamental right to freedom of
religion of non-Christians who did not observe Sunday as the day of rest and
worship. In getting the statute declared unconstitutional, the corporation's
primary purpose was the protection of its own commercial interests and freedom
from criminal prosecution for alleged breach of an invalid statutory provision.
A similar issue arose in Morgentaler Smoling and Scott v R
(1988) 31 CRR 1:
Male doctors who were prosecuted under anti-abortion
provisions successfully challenged the constitutionality of the legislation in
terms of which they were prosecuted. The legislation directly infringed the
rights of pregnant women who were the victims of the anti-abortion provisions.
The rights, the infringement of which formed the basis of the constitutional
challenge, were of pregnant women. The rights did not, and could not, vest in
the male doctors. If pregnant women were free to consult the doctors for
purposes of abortion, the doctors would benefit financially from charging for
services rendered in performing the abortions. The doctors had their own
financial and personal interests to protect in challenging the
constitutionality of the anti-abortion legislation on the ground that it
infringed the fundamental right of pregnant women to security of the person
enshrined in section 7 of the Charter.
Counsel for the applicants conceded that the applicants were not victims of the alleged
infringements of the fundamental rights of girl children involved in early
marriages. They failed to show that any of their own interests were adversely
affected by the alleged infringement of the rights of girl children subjected
to early marriages. They could not identify any girl child or girl children the
infringement of whose rights could be said to have directly and adversely
affected their own interests. Since the applicants were not victims of the
infringements of the fundamental rights enshrined in section 81(1) of the
Constitution, as they are not 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 section 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 section 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 section 85(1)(a) of the
Constitution, the founding affidavit shows that the applicants believed
themselves to be acting in terms of section 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 section 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 section 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 section 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 Constitution imposes the obligation on
the State, and every institution and agency of the Government, at every level,
to respect, protect, promote, and fulfil the fundamental rights and freedoms
enshrined in Chapter 4 of the Constitution. The constitutional obligation
requires the State to protect every fundamental right and freedom regardless of
the social and economic status of the right-holder.
Like a shepherd who cannot escape liability for a lost
sheep by claiming ignorance of what happened to it; the State is expected to
know what is happening to fundamental rights and freedoms enshrined in Chapter
4. It is under an obligation to account, in the public interest, for any
infringement of a fundamental right - even by a private person. The scheme of
fundamental human rights and freedoms enshrined in Chapter 4 is based on the
constitutional obligation imposed on the State and every institution and agency
of the Government, at every level, to protect the fundamental rights and
freedoms to ensure that they are enjoyed in practice.
Section 85(1) of the Constitution is the cornerstone of the
procedural and substantive remedies for effective judicial protection of
fundamental rights and freedoms and the enforcement of the constitutional
obligation imposed on the State and every institution and agency of the Government,
at every level, to protect the fundamental rights in the event of proven
infringement. The right to a remedy provided for under section 85(1) of the
Constitution is one of the most fundamental and essential rights for the
effective protection of all other fundamental rights and freedoms enshrined in
Chapter 4. The right to a remedy enshrined in section 85(1) constitutes a
constitutional obligation inherent in Chapter 4 as a whole.
The form and structure of section 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 section 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, marginalized, 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 section 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 the
fundamental human rights and freedoms enshrined in Chapter 4. A court
exercising jurisdiction under section 85(1) of the Constitution is obliged to
ensure that the exercise of the right of access to judicial remedies for
enforcement of fundamental human rights and effective protection of the
interests concerned is not hindered provided the substantive requirements of
the rule under which standing is claimed are satisfied.
In Ferreira v Levin NO and Others 1996 (1) SA 984…,
CHASKALSON P, writing for the Constitutional Court of South Africa, made
reference to the need to adopt a broad approach to standing in constitutional
cases in these terms…,:
“Whilst it is important that this Court should not be
required to deal with abstract or hypothetical issues, and should devote its
scarce resources to issues that are properly before it, I can see no good
reason for adopting a narrow approach to the issue of standing in
constitutional cases. On the contrary, it is my view that we should rather
adopt a broad approach to standing. This would be consistent with the mandate
given to this court to uphold the Constitution and would serve to ensure that
constitutional rights enjoy the full measure of the protection to which they
are entitled.”
Section 85(1)(d) of the Constitution is founded on the
broadest conception of standing. Its primary purpose is to ensure effective
protection to any public interest shown to have been, or to be, adversely
affected by an infringement of a fundamental right or freedom. Whilst its
purpose is to ensure that a person who approaches a court in terms of the
procedure prescribed under the rule has the protection of public interest as
the objective to be accomplished by the litigation, section 85(1)(d) directs
against the use of the procedure to protect private, personal or parochial
interests. By definition, public interest is not private, personal or parochial
interest. An infringement of a fundamental right may cause legal injury to an
individual or prejudicially affect private interest without being of a nature
that adversely affects the interests of the community at large or a significant
section of the community. The cause of action must show that the proceedings
are in the public interest.
Public interest is one of those value-laden and amorphous
concepts, the limits and substance of which is difficult to define with
precision.
Section 85(1)(d) of the Constitution does not define public
interest. The reason is that it does not require a narrow approach which seeks
to answer the question “what is public interest?” The courts, in many jurisdictions,
have preferred to leave the definition of public interest open. They prefer to
determine the question of public interest on the basis of the circumstances of
each case. Given that most violations of fundamental human rights and freedoms
are fact and context specific, it is appropriate to keep concepts such as
“public interest" broad and flexible to develop in line with changing
times and social conditions reflective of community attitudes.
The words “in the public interest” qualify the action to be
taken to ensure that it is one intended to achieve the purpose for which locus
standi, under section 85(1)(d) of the Constitution, is designed. The term “in
the public interest”, as used in section 85(1)(d) of the Constitution,
classically imparts a discretionary value judgment to be made by reference to
undefined factual matters, as they change from case to case. The facts are confined only in so far as the
subject matter, the scope, and purpose of the fundamental right allegedly
infringed enable.
There are many areas of national and community activities
which may be subject to the public interest.
Used in the context of section 85(1)(d) of the Constitution, public
interest does not mean that which gratifies curiosity or merely satisfies
appetite for information or amusement. It is also necessary to distinguish
between “what is in the public interest” and what is of interest to the public. R v Inhabitants of the County of
Bedfordshire [1855] 24 LJQB 8…,; Lion Laboratories Limited v Evans [1985] QB
526…,; O'Sullivan v Farrer [1989] 168 CLR 210…,.
The use of the words “the public interest” in section
85(1)(d) suggests that there are many categories, or facets, of public
interest. The task is to ascertain, amongst others, the public interest to be
served. As was observed by the Australian Federal Court in Mckinnon v Secretary
Department of Treasury [2005] FCAFC 142…, “the public interest is not one
homogenous undivided concept.” Often quoted is LORD HAILSHAM'S dictum in D v
National Society for the Prevention of Cruelty to Children [1978] AC 171…,
where he said;
“The categories of public interest are not closed.”
Matters of public interest that would affect fundamental
rights and freedoms would include, for example, public health; national
security; defence; international obligations; proper and due administration of
criminal justice; independence of the judiciary; observance of the rule of law;
the welfare of children; a clean environment, among others.
Public interest is a term embracing matters, among others,
of standards of human conduct tacitly accepted and acknowledged to be for the
good order of society and for the well-being of its members. The paramount test should be whether the
alleged infringement of a fundamental right or freedom has the effect of prejudicially
affecting or potentially affecting the community at large or a significant
section or segment of the community. The test covers cases of marginalised or
underprivileged persons in society who, because of sufficient reasons such as
poverty, disability, socially and economically disadvantaged positions, are
unable to approach a court to vindicate their rights.
Section 85(1)(d) of the Constitution was introduced with
the view of providing expansive access to justice to wider interests in
society, particularly the vulnerable groups in society, the infringement of
whose rights would have remained un-redressed under the narrow, traditional
conception of standing. The interest is therefore the interest of the public as
distinct from the interest of an individual or individuals. A public interest
action will usually involve foregoing personal benefit to benefit a greater
good to achieve the goals of social justice. Sinclair v Mining Warden At
Maryborough [1975] 132 CLR 473…,.
Whilst acting in the public interest is the imperative for
standing under section 85(1)(d) of the Constitution, the meaning, or
content, of public interest will vary from case to case depending on the facts
and circumstances. Public responsibilities regarded as being in the public interest
in one case may not be so regarded in a different context because facts and
circumstances may differ. The facts may reveal more reasonable and effective
methods of resolving the dispute than bringing the matter to court. The concept
is elastic and relative rather than fixed and absolute. Whether a person is
acting in the public interest is a question of fact. It is an objective test
which does not depend for its answer on what the person says. In other words,
the fact that a person says he or she is acting in the public interest is
irrelevant to the determination of the issue. A person is, on the facts and in
the circumstances of the case, either acting in the public interest or he or
she is not.
There are factors by which a court should be able to decide
whether or not a person is genuinely acting in the public interest. Asserting
that an action is in the public interest involves setting oneself up in
judgment as to whether the action will benefit the public overall. To act in
the public interest is to act in favour of the broader rather than narrow
interests. What is important is to set out factors, or matters, to be
considered when deciding whether a person is genuinely acting in the public
interest.
The adoption of the approach of testing the actions of the
applicant against a set of factors as an objective standard, is necessitated by
the elasticity and relativity of the concept of public interest which is an
abstract notion. It is also necessitated by the fact that there can be a
natural suspicion that the notion of acting in the public interest may be
invoked as a smokescreen to garner support for something that actually is in
the applicant's own interest. The factors to be considered do not only help the
court to decide whether the action taken is genuinely in the public interest as
to meet the requirements of section 85(1)(d) of the Constitution; they are
important for the protection of judicial process against abuse for private
interest. As was observed in Stevenson v Minister of Local Government & Ors
2001(1) ZLR 321 (H), the factors ensure that “potentially viable public causes
are not frittered away in frivolous, furtive, unfocused or self-serving private
litigation,” disguised as public interest .The factors relate to the key issues
that a person facing the challenge of justifying the proceedings instituted as
being in the public interest needs to address.
The judicial process is invoked for the purposes of
achieving constitutional objectives. The court must be careful not to risk the
credibility of its process by unwittingly associating its jurisdiction with
proceedings that have nothing to do with the objectives of public interest
litigation. Section 85(1)(d) of the Constitution guarantees standing to a
person who institutes judicial proceedings seeking to achieve the objectives
for which the remedy of acting in the public interest was designed. It is in
the context of seeking to ensure that public interest litigation is used for
its intended purpose and to prevent section 85(1)(d) procedure being abused by
busybodies, merely meddlesome people for oblique motives unrelated to
vindication of public interest, that courts developed factors that any person
genuinely acting in the public interest has to satisfy. State of Uttaranchal v
Chaufal & Ors, AIR (2010) SC 2550.
In a minority judgment which has received approval in
subsequent decisions of the Constitutional Court of South Africa, O'REGAN J in Ferreira
v Levin NO and Others 1996 (1) SA 984, in considering the interpretation and
application of section 7(4()(b)(v) of the Interim Constitution of South Africa,
worded in terms identical to section 85(1)(d) of the Constitution, said…,:
“This Court will be circumspect in affording applicants
standing by way of s 7(4)(b)(v) and will require an applicant to show that
he or she is genuinely acting in the public interest. Factors relevant to
determining whether a person is genuinely acting in the public interest will
include considerations such as:
(i) Whether there is another reasonable and effective
manner in which the challenge can be brought;
(ii) The nature of the relief sought and the extent to
which it is of general and prospective application; and
(iii) The range of persons or groups who may be directly or
indirectly affected by any order made by the court and the opportunity that
those persons or groups have had to present evidence and argument to the court.
These factors will need to be considered in the light of
the facts and circumstances of each case.”
In Lawyers for Human Rights & Anor v Minister of Home
Affairs & Anor 2004 (4) SA 125 (CC), YACOOB J …, said:
“The issue is always whether a person or organisation acts
genuinely in the public interest. A distinction must however be made between
the subjective position of the person or organisation claiming to act in the
public interest on the one hand, and whether it is objectively speaking in the
public interest for the particular proceedings to be brought. It is ordinarily
not in the public interest for proceedings to be brought in the abstract. But
this is not an invariable principle. There may be circumstances in which it
will be in the public interest to bring proceedings even if there is no live
case. The factors set out by O'REGAN J (Ferreira v Levin) help to determine the
question. The list of relevant factors is not closed. I would add that the
degree of vulnerability of the people affected; the nature of the right said to
be infringed, as well as the consequences of the infringement of the right are
also important considerations in the analysis.”
In SP Gupta v The Union of India & Ors (1982) 2 SCR 365,
BHAGWATI J…, writing for the full bench of the Supreme Court of India, analysed
in great detail the origin and rationale behind public interest standing
adopted in many democratic legal systems. He concluded that fundamental to
public interest standing provisions is the modern conception of the role of law
as a weapon for social change. There is also the conception of the judicial
function as investing law with meaning primarily aimed at preserving legal order
by confining the legislative and executive organs of Government within their
powers in the interest of the public, whilst also directed at enforcement of
individual rights.
In paragraph [18] of the SP Gupta v The Union of India
& Ors (1982) 2 SCR 365 judgment, the Indian Supreme Court highlighted the
importance of affording locus standi to a person acting in the public interest
for the vindication of the rule of law. BHAGWATI J…, said:
“But there may be cases where the State or a public
authority may act in violation of a constitutional obligation or fail to carry
out such obligation, resulting in injury to public interest or what may
conveniently be termed as public injury as distinguished from private injury.
Who would have standing to complain against such act or omission of the State
or public authority? Can any member of the public sue for judicial redress? Or
is the standing limited only to a certain class of persons? Or there is no one
who can complain and the public injury must go un-redressed.
…,. If the State, or any public authority, acts beyond the
scope of its power and thereby causes a specific legal injury to a person or to
a determinate class or group of persons, it would be a case of private injury
actionable in the manner discussed in the preceding paragraphs. So also if the
duty is owed by the State or any public authority to a person or to a
determinate class or group of persons, it would give rise to a corresponding
right in such person or determinate class or group of persons and they would be
entitled to maintain an action for judicial redress.
But, if no specific legal injury is caused to a person or
to a determinate class or group by the act or omission of the State or any
public authority and the injury is caused only to public interest, the question
arises as to who can maintain an action for vindicating the rule of law and
setting aside the unlawful action or enforcing the performance of the public
duty. If no one can maintain an action for redress of such public wrong or
public injury, it would be disastrous for the rule of law, for it would be open
to the State or a public authority to act with impunity beyond the scope of its
power or in breach of a public duty owed by it. The Courts cannot countenance
such a situation where the observance of the law is left to the sweet will of
the authority bound by it, without any redress if the law is contravened. The
view has therefore been taken by the Courts in many decisions that whenever
there is a public wrong or public injury caused by an act or omission of the
State or a public authority, which is contrary to the Constitution or the law,
any member of the public, acting bona fide and having sufficient interest, can
maintain an action for redressal of such public wrong or public injury. The
strict rule of standing which insists that only a person who has suffered a
specific legal injury can maintain an action for judicial redress is relaxed
and a broad rule is evolved which gives standing to any member of the public
who is not a mere busy–body or a meddlesome interloper but who has sufficient
interest in the proceedings. There can be no doubt that the risk of legal
action against the State or a public authority by any citizen will induce the
State or such public authority to act with greater responsibility and care
thereby improving the administration of justice.”…,.
In the main volume of ERASMUS SUPERIOR COURT PRACTICE, Juta.., the learned authors considered
the meaning of section 38(d) of the Constitution of the Republic of South
Africa, 1996. Section 38(d) of the Constitution of the Republic of South
Africa, 1996 is in identical terms as section 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 section 38(d) of
the Constitution of the Republic of South Africa, 1996 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 section 38(d) of the
Constitution of the Republic of South Africa, 1996, to allege and prove
infringement of a fundamental right of a particular person, the learned authors
of ERASMUS SUPERIOR COURT PRACTICE, Juta.., 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 NO 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 pre-Constitutional
laws) or upon the date when they came into force (in the case of post–Constitutional
laws).”
The applicants had no personal or financial gain to derive
from the proceedings. They were not acting mala fide or out of extraneous
motives as would have been the case if they were mere meddlesome busybodies
seeking a day in court and cheap personal publicity. The applicants were driven
by the laudable motive of seeking to vindicate the rule of law and supremacy of
the Constitution. It is a high principle of constitutional law that people
should be in a position to obey laws which are consistent with constitutional
provisions enshrining fundamental human rights and freedoms. They acted
altruistically to protect public interest in the enforcement of the
constitutional obligation on the State to protect the fundamental rights of
girl children enshrined in section 81(1) as read with section 78(1) of the
Constitution.
Children fall into the category of weak and vulnerable
persons in society. They are persons who have no capacity to approach a court
on their own seeking appropriate relief for the redress of legal injury they
would have suffered. The reasons for their incapacity are disability arising
from minority, poverty, and socially and economically disadvantaged positions.
The law recognises the interests of such vulnerable persons in society as
constituting public interest.
The proceedings instituted by the applicants and the relief
sought were the only reasonable and effective means for enforcement of the
fundamental rights of the girl children subjected to early marriages. The
remedy they sought was the only means for an effective protection of the public
interest adversely affected by the alleged infringement of the girl children's
fundamental rights.
The respondents denied that there was infringement of the
children's fundamental rights.
They could not be heard to argue that there were other
reasonable and effective methods for enforcing the children's fundamental
rights and protecting the public interest adversely affected by the alleged
infringement.
The interests of the girl children subjected to early
marriages were properly identified as a public interest to be protected by the
relief sought in the proceedings. Section 85(1)(d) of the Constitution
underlines the principle that courts play a vital role in the provision of
access to justice and protection of children.
These are matters of public interest.
