The general rule is that ‘where there is a right there is a remedy’ ubi jus ibi remedium; which provides the fundamental concept that the complainant who has a grievance cognizable by the law may be assured of a remedy through the courts. Ubi jus ibi remedium has been a fundamental concept of our legal system, and the complainant who has a grievance cognizable by the law may be assured of a remedy through the courts.
The work of the constitutional mandate is that courts must grant ‘appropriate relief’ or ‘appropriate and just’ remedy where there is a breach of fundamental rights entrenched in the constitution. Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.
The Writ of Habeas Corpus
Is a writ or legal action, through which a prisoner can be released from unlawful detention, that is, detention lacking sufficient cause or evidence. The remedy can be sought by the prisoner or by another person coming to their aid. A writ of habeas corpus is a summons with the force a court order; it is addressed to the custodian and demands that a prisoner be taken before the court and the custodian present proof of authority to detain the person. If the custodian does not have the authority to detain the prisoner then he must be released from custody. This is an important remedy which may be resorted to in the course of the criminal process to obtain judicial review of police action and thus to the subject against unlawful deprivation of his liberty.
Habeas corpus has certain limitations. It is technically only a procedural remedy; it is a guarantee against any detention that is forbidden by law, but it does not necessarily protect other rights, such as the entitlement to fair trial. So for an imposition of such internment without trial is permitted by the law then habeas corpus may not be a useful remedy. Furthermore, in many Countries, the process may be suspended due to a national emergency.
The writ of habeas corpus sometimes called ‘interdictum de libero homine exhibendo’ is an important remedy which may be resorted to in the course of criminal process to obtain judicial review of police action and thus to protect the subject against unlawful deprivation of his liberty. The case of Sishayi Simon Nxumalo v. Attorney General: This was an application for habeas corpus brought by applicant at the High court after he had been wrongfully detained for questioning but subsequently detained in accordance with s.2 of the Detention Order 1 of 1978. Held that, in respect of the applicant’s application for release from wrongful detention, the respondent should pay the applicant’s costs on the attorney and client scale.
Writ of Mandamus
Is a mandatory interdict under the influence of English law. Mandamus is the reverse of an interdict; it is a positive order that a functionary perform his or her duty (eg furnish an accused with proper particulars relating to the charges). Mandamus is not a writ of right, it is not consequently granted, but only at the discretion of the court to whom the application for it is made; and this discretion is not exercised in favor of the applicant, unless some just and useful purpose may be answered by the writ. This writ was introduced to prevent disorders from a failure of justice; therefore it ought to be used upon all occasions where the law has established no specific remedy, and where in justice and good government. Mandamus will not lie where the law has given another specific remedy.
In Pad v. Minister of Agriculture 1972 (3) SA, the minister had discretion to point or commit to consider price issues raised by milk producers but refused to do so because he said this would lead to political problems. Here he was exercising mandamus as an appropriate remedy in the case of public discretion. An Applicant pleading for the writ of mandamus to be...
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