The theme of this symposium is accessing constitutional justice which is also the subject of Patrick Keyzer’s challenging book, Open Constitutional Courts . There are many strands to this theme. Of these strands, the papers in this symposium concentrate on existing limitations to access to constitutional justice and generally favour a relaxation of them, a sentiment with which I agree.
Access to the courts for the enforcement of provisions of the Constitution has, however, been impeded in various ways. Rules relating to standing, the position of amici curiae, the requirements of justiciability and limitations on the concept of judicial power, especially those arising from the concept of ‘matter’ in Ch III of the Constitution, as well as the cost of litigation, have restricted access to the courts for constitutional relief.
These rules have been strongly influenced by several factors. They include (i) the traditional view that the judicial process involves the adjudication of a controversy which results in the determination of the existence of a right or duty asserted by one or more parties against another or others; (ii) the perceived need to protect the courts from an invasion of meddlesome busybodies and; (iii) a misplaced belief in the willingness of the Attorney-General to represent the community’s interest in upholding the law. The traditional view failed to accommodate the special considerations which apply to access to constitutional justice.