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Principles and standards Archives: Rule of law

Madeli Fakudze v. Commissioner of Police and Ors (8/2002)

Year: 2002 (Date of Decision: 1 June, 2002)

Forum, Country: Supreme Court; Swaziland

Standards, Rights: Rule of law; Right to adequate housing

Summary Background: Madeli Fakudze (the respondent in this appeal) was one of four individuals served with a removal order in August 2000 by the Minister of Home Affairs. The respondent claimed that security forces had wrongfully evicted him after he was granted an injunction from the High Court to stop his eviction. Upon returning to his home, the respondent was confronted by police officers and told they were acting upon a verbal order from the Commissioner of Police to eject the respondent immediately, in contravention of the court order. The High Court then proceeded to overturn the injunction it had granted, purporting to restore the status quo ante. The police officers claimed they were fully aware of the court orders issued at the time, but that issues of “national security” had prevented them from enforcing these orders and that threats to national security overrode all other interests, whether they rise out of a court order or not.

Holding: The Court rejected the defence of national security, deeming it a “last gasp attempt” to raise a barrier to the enforcement of the court order [p. 8]. The Court highlighted that an officer from the Attorney-General had made no objection or raised any security concerns at the initial decision of the Court of Appeal to permit the evictees to return to their homes. The Court denounced the police officer’s failure to disclose any information to the Court on which a reasonable apprehension could be based that a threat to national security might exist, and thus had acted in contempt of the court order with no reasonable excuse for deviation [p. 8].

The Court reaffirmed the injunction of Matsebula J, stating “anyone wilfully refusing or failing to comply with an order of this Court exposes himself to the imposition of a penalty…to compel performance in compliance with the court order” [p. 9].

The Court acknowledged that contempt of court is a criminal offence, yet as per S v. Beyers 1968, it held that in cases of civil contempt as in this case, it is left to the aggrieved party in the proceeding to seek the relief. It sentenced one police officer to a term of imprisonment [p. 10].

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Constitutional Case No. 15 of 2010, State Gazette Issue 91, p. 3

Year: 2010 (Date of Decision: 11 November, 2010)

Forum, Country: Constitutional Court; Bulgaria

Standards, Rights: Non-retroactivity; Rule of law; Welfare State; Right to decent work

Summary Background: This case addressed two independent applications, one by the President of Bulgaria and the other by 51 parliamentarians, seeking a declaration that para. 3 of the transitional provisions and articles 176.3 and 224.1 of the Labour Code, and articles 59.5 and 61.2 of the law on state officials, are unconstitutional and contrary to treaties to which Bulgaria is party, including the ICESCR. These provisions amended entitlements to untaken paid leave prior to the provisions’ entry into force.

Holding: The Constitutional Court held that para. 3 of the transitional provisions of the Labour Code and para. 8(a) of the transitional and final provisions of the law on state officials were contrary to articles 57.1, 16, 48.1 and 48.5 of the Constitution of Bulgaria; indent 5 of the Preamble to the Constitution of Bulgaria, articles 2.1 and 24 of the UDHR, and article

1. Every person to whom this Convention applies shall be entitled after one year of continuous service to an annual holiday with pay of at least six working days. 2. Persons, including apprentices, under sixteen years of age shall be entitled after one year of continuous service to an annual holiday with pay of at least twelve working days. 3. The following shall not be included in the annual holiday with pay: (a) public and customary holidays; (b) interruptions of attendance at work due to sickness. 4. National laws or regulations may authorise in special circumstances the division into parts of any part of the annual holiday with pay which exceeds the minimum duration prescribed by this Article. 5. The duration of the annual holiday with pay shall increase with the length of service under conditions to be prescribed by national laws or regulations.
of ILO Convention No. 52, which protect the interdependence of fundamental rights, the right to work, the right to leave and the principle of the welfare state.

The Constitutional Court dismissed the application for unconstitutionality of article 176.3 of the Labour Code and article 59.5 of the law on state officials because the articles’ stipulation that the right to paid annual leave lapses two years after the leave is granted extinguishes the exercise of the right to leave rather than the right itself.

The Constitutional Court found that article 224.1 of the Labour Code and article 61.2 of the law on state officials violated article

A person dismissed for a reason imputable to the employer before he has taken a holiday due to him shall receive in respect of every day of holiday due to him in virtue of this Convention the remuneration provided for in Article 3.
of ILO Convention No. 52, as well as the principle of the rule of law for contradicting articles 48.5 and 176.3 of the Labour Code, in light of the right to work enshrined in articles 16 and 48.1 of the Constitution of Bulgaria.

Additional Comments: The extent to which the Constitutional Court accounts for European and international legal documents is of interest.

Link to Full Case: Summary by the Constitutional Case Law InfoBase of the Venice Commission:

Full judgement (only available in Bulgarian):

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