Bill of Rights Handbook

THE BILL OF RIGHTS
HANDBOOK
The Bill of Rights
Handbook
Sixth edition
by
Iain Currie
Professor of Law, University of the Witwatersrand, Johannesburg
Advocate, Member of the Johannesburg Bar
Johan de Waal
Advocate, Member of the Cape Bar
in association with
The Law Society of South Africa
First edition 1998
Second edition 1999
Third edition 2000
Fourth edition 2001
Fifth edition 2005
Sixth edition 2013
© Juta & Co. Ltd

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ISBN: 978-0-7021-9999-8
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Preface to the Sixth Edition
This is the sixth edition of The Bill of Rights Handbook, first published in 1998. The first
edition of the Handbook was an expanded version of a set of notes that had been
compiled in 1995. The notes were intended to provide candidate attorneys with a guide
to the brave new world of Bill of Rights litigation, and were a joint project of the
Practical Legal Training Unit of the Law Society (then called the Association of Law
Societies) and the Human Rights Education Project of Lawyers for Human Rights.
In the preface to the first edition we wrote that the Handbook answered a ‘need
among students, candidate attorneys and practitioners for a clear, comprehensive and
practically-orientated guide to the revolutionary changes to the legal system brought
about by the Bill of Rights’. Some fifteen years and five editions later, it remains our
aim that the Handbook will provide a clear and comprehensive guide to the
jurisprudence on the South African Bill of Rights. The book is therefore not a
treatise on constitutional law in general, nor does it cover the body of statutory rights
put in place since 1994 in compliance with the duty to respect, protect, promote and
fulfil the rights in the Bill of Rights. We are also, to our regret, unable to deal
systematically with the exceptionally rich body of academic literature in this field.
The Handbook’s focus remains, as it has since its first edition, on the jurisprudence
interpreting and directly applying the Bill of Rights.
For the sixth edition we have incorporated new case law and statutory
developments since March 2005. The scale of those developments in a number of
areas required the assistance of authors who have contributed entirely new chapters
for this edition: John Grogan (Labour relations), Cora Hoexter (Just administrative
action), Michael Kidd (Environment), PJ Schwikkard (Arrested, detained and accused
persons) and Ann Skelton (Children). We have also called on the services of outside
contributors to assist in updating several of the existing chapters. We thank all
academics and practitioners who have assisted with the new edition.
Our sincere thanks go to Edmund Beerwinkel, Linda van de Vijver and the Juta
team, who have provided exceptional editorial services for this edition. As always,
we must record our appreciation for the support we have received, since the
inception of the Handbook project, from the Law Society of South Africa and, in
particular, from the Director of the LSSA’s LEAD division, Nic Swart.
Michael Meyersfeld kindly gave permission to use his photograph of the Nelson
Mandela Bridge in Braamfontein for the cover of the sixth edition. The photograph
evokes Etienne Mureinik’s justly influential description of the interim Constitution as
a bridge from a culture of authoritarianism to a culture of justification. The phrase
captures at once the idealism of the South African constitutional project and its
v
The Bill of Rights Handbook
simultaneous pragmatism: the unpromising territory in which it was anchored, but

from which it had decisively turned away.
Iain Currie
Johan de Waal
June 2013
vi
Contents
Preface to the sixth edition ...................................................................................... v
Table of cases .......................................................................................................... ix
Table of principal works cited ................................................................................ l
1. Introduction to the Constitution and the Bill of Rights ................................... 1
2. Structure of Bill of Rights litigation ................................................................ 23
3. Application of the Bill of Rights ...................................................................... 29
4. Justiciability ...................................................................................................... 72
5. Jurisdiction in Bill of Rights litigation ............................................................. 90
6. Interpretation of the Bill of Rights ................................................................... 133
7. Limitation of Rights .......................................................................................... 150
8. Remedies .......................................................................................................... 176
9. Equality (updated by Tembeka Ngcukaitobi) ................................................... 209
10. Human dignity .................................................................................................. 250
11. Life..................................................................................................................... 258
12. Freedom and security of the person ................................................................. 269
13. Slavery, servitude and forced labour ................................................................ 290
14. Privacy .............................................................................................................. 294
15. Religion, belief and opinion (updated by Michael Eastman) .......................... 314
16. Expression ........................................................................................................ 337
17. Assembly, demonstration and petition by Stuart Woolman ............................. 377
18. Association by Stuart Woolman ....................................................................... 396
19. Political rights (updated by Glenda Fick) ........................................................ 420
20. Citizenship ........................................................................................................ 442
21. Freedom of movement and residence .............................................................. 451
22. Freedom of trade, occupation and profession .................................................. 458
23. Labour relations by John Grogan .................................................................... 472
24. Environment by Michael Kidd ......................................................................... 516
25. Property (updated by Kevin Iles) ..................................................................... 530
26. Socio-economic rights (updated by Jason Brickhill and Nick Ferreira) ........ 563
27. Children by Ann Skelton ................................................................................... 598
28. Culture, language and education ...................................................................... 624
29. Just administrative action by Cora Hoexter ..................................................... 643
30. Access to information ....................................................................................... 691
vii
31. Access to courts (updated by Kevin Iles) ......................................................... 710

32. Arrested, detained and accused persons by PJ Schwikkard ............................. 744
33. States of emergency ......................................................................................... 813
INDEX ..................................................................................................................... 823
viii
Table of Cases
A
A (FC) v Secretary of State for the Home Department [2004] UKHL 56 . . . . . . . . . . . 447
AAA Investments (Pty) Ltd v Micro Finance Regulatory Council 2004 (6) SA 557 (T) 89
AAA Investments (Pty) Ltd v Micro Finance Regulatory Council 2007 (1) SA 343
(CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89, 658
Abahlali Basemjondolo Movement SA v Premier of the Province of KwaZulu-Natal
2010 (2) BCLR 99 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 594
Abbott v Bargaining Council for the Motor Industry (Western Cape) (1999) 20 ILJ 330
(LC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 499, 510
Abbott Laboratories v Gardner 387 US 136, 148 (1967) . . . . . . . . . . . . . . . . . . . . . . . . 85
Abington School Dist v Schempp 374 US 203 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 326
Abood v Detroit Board of Education (1977) 431 US 209 . . . . . . . . . . . . . . . . . . . . . . . 400
Abrams v Allie NO 2004 (9) BCLR 914 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 551
ABSA Bank Bpk v Murray 2004 (2) SA 15 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 588
Acting Superintendent-General of Education of KwaZulu-Natal v Ngubo 1996 (3)
BCLR 369 (N) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 383
AD v DW 2008 (3) SA 183 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 608, 617, 620, 621, 622
Adderly v Florida 385 US 39 (1966) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 393, 394
Administrator, Transvaal v Traub 1989 (4) SA 731 (A) . . . . . . . . . . . . . . . . . . . . . . . 658, 673
Advance Mining Hydraulics v Botes NO 2000 (1) SA 815 (T) . . . . . . . . . . . . . . . . . . . 253
Advtech Resourcing (Pty) Ltd v Kuhn 2008 (2) SA 375 (C) . . . . . . . . . . . . . . . . . . . . . 471
Affordable Medicines Trust v Minister of Health 2006 (2) SA 247 (CC) . . . . . . . 14, 156, 453,
465, 466, 467, 668, 672
African Christian Democratic Party v Electoral Commission 2006 (3) SA (CC) . . . . . 423
African National Congress v Chief Electoral Officer of the Independent Electoral
Commission 2010 (5) SA 487 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 714
African National Congress v United Democratic Movement 2003 (1) SA 533 (CC) . . 130
Afriforum v Malema 2010 (5) SA 235 (GNP) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 357
Afriforum v Malema 2011 (6) SA 240 (EqC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 360
Afrisun Mpumalanga (Pty) Ltd v Kunene NO 1999 (2) SA 599 (T) . . . . . . . . . . . . . . . 685
Afrox Healthcare Bpk v Strydom 2002 (6) SA 21 (SCA) . . . . . . . . . . . . . . 48, 49, 64, 65, 114
Agri South Africa v Minister for Minerals and Energy [2013] ZACC 9 . . . . . . . 532, 536, 539,
547, 548, 549, 559, 560
AK Entertainment CC v Minister of Safety and Security 1995 (1) SA 783 (C) . . . . . . 470
Albert and Le Compte v Belgium 5 EHRR 533 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 739
Albutt v Centre for the Study of Violence and Reconciliation 2010 (3) SA 293
(CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13, 69, 80, 84, 122, 682, 689
Alexandre v Provincial Administration of the Western Cape Department of Health
(2005) 26 ILJ 765 (LC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 505
Alexkor Ltd v Richtersveld Community 2004 (5) SA 460 (CC) . . . . . . . . . . . 53, 54, 99, 102
Allpass v Mooikloof Estates (Pty) Ltd t/a Mooikloof Equestrian Centre (2011) 32 ILJ
1637 (LC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 509
Allsop v McCann [2000] 3 All SA 475 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 602
ix
Amalgamated Clothing & Textile Workers of SA v Veldspun (Pty) Ltd (1993) 14 ILJ
1431 (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 484
Amalgamated Food Employers v Logan Valley 391 US 308 (1968) . . . . . . . . . . . . . . . 388
Amod v Multilateral Motor Vehicle Accident Fund 1998 (4) SA 753 (CC) . . . . . 70, 125, 336,
Amod v Multilateral Motor Vehicle Accident Fund 1999 (4) SA 1319 (SCA) . . . . . 335, 712
Amod v S 2001 (4) All SA 13 (E) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 811
Amod v South Peninsula Municipality [1999] 2 All SA 423 (W) . . . . . . . . . . . . . . . . . 588
Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500 (FC) . . 686
AParty v Minister of Home Affairs 2009 (3) SA 649 (CC) . . . . . . . . . . . . . . . . . . . . 128, 434
Argus Printing and Publishing Co Ltd v Esselen’s Estate 1994 (2) SA 1 (A) . . . . . . . . 366
Armbruster v Minister of Finance 2007 (6) SA 550 (CC) . . . . . . . . . 541, 542, 547, 719, 720
Armstrong v United States (1949) 364 US 40 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 533
Arse v Minister of Home Affairs 2012 (4) SA 544 (SCA) . . . . . . . . . . . . . . . . . . . . . 274, 456
Ashwander v Tennessee Valley Authority 297 US 288 (1936) . . . . . . . . . . . . . . . . . . . 72
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
(CA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 670
Association of Professional Engineers of Saskatchewan v SGEU (1992) 91 DLR (4th)
694 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 401
Association of Professional Teachers v Minister of Education (1995) 16 ILJ 1048
(IC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 498, 511
Attorney-General of Lesotho v Swissbourgh Diamond Mines (Pty) Ltd 1997 (8) BCLR
1122 (Lesotho CA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161, 540
Attorney-General, Eastern Cape v D 1997 (1) SACR 473 (E) . . . . . . . . . . . . . . . . . . . 802
Attorney-General, Venda v Maraga 1992 (2) SACR 594 (V) . . . . . . . . . . . . . . . . . . . . 802
August v Electoral Commission 1999 (3) SA 1 (CC) . . . . . . . . . . . . . . . . . 134, 155, 199, 253,
421, 430, 435, 436, 439, 568, 594, 784
Awumey v Fort Cox Agricultural College 2003 (8) BCLR 861 (Ck) . . . . . . . . . . . . . . 667
Azanian Peoples Organisation (AZAPO) v President of the Republic of South Africa
1996 (4) SA 671 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147, 172, 722
B
B v Minister of Correctional Services 1997 (6) BCLR 789 (C) . . . . . . . . . . . . . . . . . 784, 785
B v M 2006 (9) BCLR 1034 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 607
Baartman v Port Elizabeth Municipality 2004 (1) SA 560 (SCA) . . . . . . . . . . . . . . . . . 588
Bacela v MEC for Welfare (Eastern Cape Provincial Government) [1998] 1 All SA 525
(E) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204
Bafokeng Tribe v Impala Platinum Ltd 1999 (3) SA 517 (B) . . . . . . . . . . . . . . . . . . . . 731
Baldeo v Minister of Safety and Security 1997 (12) BCLR 1728 (D) . . . . . . . . . . . . . 723
Balmoral Investments v Minister van Mineraal en Energiesake 1995 (9) BCLR 1104
(NC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 705
Banana v Attorney-General 1999 (1) BCLR 27 (ZS) . . . . . . . . . . . . . . . . . . . . . . . . . . . 340
Bangindawo v Head of the Nyanda Regional Authority 1998 (3) BCLR 314 (Tk) . . . 738
Bannatyne v Bannatyne 2003 (2) SA 363 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . 98, 556, 620
Baramoto v Minister of Home Affairs 1998 (5) BCLR 562 (W) . . . . . . . . . . . . . . . . . . 718
Barker v Wingo, Warden 407 US 514 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 798
Barkhuizen v Napier 2007 (5) SA 323 (CC) . 31, 47, 57, 62, 99, 156, 251, 470, 717, 725, 726
Baromoto v Minister of Home Affairs 1998 (5) BCLR 562 (W) . . . . . . . . . . . . . . . . . . 455
Bartsch Consult (Pty) Ltd v Mayoral Committee of the Maluti-A–Phofung Municipality
[2010] ZAFSHC 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 550
x
Table of Cases
Basson v Chilwan 1993 (3) SA 742 (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 469

Bate v Regional Magistrate Randburg 1996 (7) BCLR 974 (W) . . . . . . . . . . . . . . . . . . 799
Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism 2004 (4)
SA 490 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99, 215, 527, 651, 652, 670, 671
Bay Area Peace Navy v United States 914 F 2d 1224, 1227 (9th Cir 1990) . . . . . . . . . 389
Beckett (TW) & Co Ltd v H Kroomer Ltd 1912 AD 324 . . . . . . . . . . . . . . . . . . . . . . . 464
Beinash v Ernst & Young 1999 (2) SA 91 (CC) . . . . . . . . . . . . . . . . . 124, 130, 131, 167, 721
Bekker v Jika [2001] 4 All SA 573 (SEC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 588
Bel Porto School Governing Body v Premier of the Western Cape Province 2002 (3) SA
265 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 222, 566, 669
Bellocchio Trust Trustees v Engelbrecht NO 2002 (3) SA 519 (C) . . . . . . . . . . . . . . . . 730
Bengwenyama Minerals (Pty) Ltd v Genorah Resources (Pty) Ltd 2011 (4) SA 113
(CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183, 560, 652
Bernstein v Bester NO 1996 (2) SA 751 (CC). . . . . . . . . . . 273, 274, 279, 295, 296, 297, 298,
299, 300, 301, 302, 310, 711, 739, 750, 751
Bertie van Zyl (Pty) Ltd v Minister for Safety and Security 2010 (2) SA 181 (CC) . . 59, 672
Besserglik v Minister of Trade, Industry and Tourism 1996 (4) SA 331 (CC) . . 129, 221, 714
Bethel School District v Fraser 478 US 675 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 390
Bethell v Bland 1996 (2) SA 194 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 605
Betlane v Shelley Court CC 2011 (1) SA 388 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
Beukes and Bekker: Re Farm Groote Springfontein [1997] ZALCC 3 . . . . . . . . . . . . . 717
Beyers v Elf Regters van die Grondwetlike Hof 2002 (6) SA 630 (CC) . . . . . . . . . . 119, 123
Bezuidenhoudt v Patensie Sitrus Beherend Bpk 2001 (2) SA 224 (ECD) . . . . . . . . . . . 717
Bhe v Magistrate, Khayelitsha 2005 (1) SA 850 (CC) . . . . . 54, 184, 190, 235, 334, 599, 620
BHP Billiton Energy Coal SA Ltd v CCMA (2009) 30 ILJ 2056 (LC) . . . . . . . . . . . . . 495
Bhugwan v JSE Ltd 2010 (3) SA 335 (GSJ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 657
Bid Industrial Holdings (Pty) Ltd v Strang 2008 (3) SA 355 (SCA) . . . . . . . . . . . . . 272, 277
Bigelow v Virginia 421 US 809 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 361
Bilka-Kaufhaus v Weber van Haus [1986] IRLR 317 . . . . . . . . . . . . . . . . . . . . . . . . . . 510
Billiton Aluminium SA Ltd t/a Hillside Aluminium v Khanyile 2010 (5) BCLR 422
(CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
Bio Energy Afrika Free State v Freedom Front Plus 2012 (2) SA 88 (FB) . . . . . . . . . . 74
Biowatch Trust v Registrar Genetic Resources 2009 (6) SA 232 (CC) . . . . . . . . . . . 103, 728
Black v Law Society of Alberta [1989] 1 SCR 591 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 464
Blue Moonlight Properties 39 (Pty) Ltd v Occupiers of Saratoga Avenue 2009 (1) SA
470 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 589
Bock v Dubororo Investments (Pty) Ltd 2004 (2) SA 242 (SCA) . . . . . . . . . . . . . . . . . 720
Boesak v Minister of Home Affairs 1987 (3) SA 665 (C) . . . . . . . . . . . . . . . . . . . . . . . 452
Bogoshi v National Media 1996 (3) SA 78 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 367
Bookworks v Greater Johannesburg Transitional Metropolitan Council 1999 (4) SA 799
(W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 728
Boos v Barry 485 US 312 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 391
Booysen v Minister of Home Affairs 2001 (4) SA 485 (CC) . . . . . . . 117, 257, 408, 454, 604
Bosasa Operation (Pty) Ltd v Basson 2013 (2) SA 570 (GSJ) . . . . . . . . . . . . . . . . . . 346, 347
Botha v Matjhabeng Municipality [2010] ZAFSHC 18 (18 February 2010) . . . . . . . . 664
Botha v Minister of Safety and Security & January v Minister of Safety and Security
2012 (1) SACR 305 (ECP) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 776, 778
Bothma v Els 2010 (1) SACR 184 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 798
Bowers v Hardwick 478 US 186 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 407
xi
Boxer Superstores Mthatha v Mbenya (2007) 28 ILJ 2209 (SCA) . . . . . . . . . . . . . . . . 481

BP Southern Africa (Pty) Ltd v MEC for Agriculture, Conservation, Environment and
Land Affairs 2004 (5) SA 124 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 522
Brandenburg v Ohio 395 US 444 (1969) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 355, 403
Breard v City of Alexandria 341 US 622 (1951) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 388
Bredenkamp v Standard Bank of South Africa Ltd 2010 (4) SA 468 (SCA) . . . . . . . . 62, 470
Brink v Kitshoff NO 1996 (4) SA 197 (CC) . . . . 103, 141, 142, 167, 193, 211, 212, 227, 228
Brisley v Drotsky 2002 (4) SA 1 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61, 66, 589
British American Tobacco South Africa (Pty) Ltd v Minister of Health [2012] 3 All SA
593 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155, 362
Brooks v Canada Safeway Ltd [1989] 1 SCR 1219 (SC) . . . . . . . . . . . . . . . . . . . . . . . 227
Brown v Papadakis NO [2011] ZAWCHC 150 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 742
Brown v Allen 344 US 443 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 773
Brown v Director of Public Prosecutions 2009 (1) SACR 218 (CPD) . . . . . . . . . . . . . 778
Brown v Louisiana 383 US 131 (1966) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 393
Bruce v Fleecytex Johannesburg CC 1998 (2) SA 1143 (CC) . . . . . . . . . . . . . . . . . . . . 128
Brummer v Gorfil Brothers Investments (Pty) Ltd 2000 (2) SA 837 (CC) . . . . . . . . . . 54, 120
Brümmer v Minister for Social Development 2009 (6) SA 323 (CC) . . . . . . . . . 132, 163, 195,
692, 707, 726
Building Bargaining Council (Southern & Eastern Cape) v Melmons Cabinets CC
(2001) 22 ILJ 120 (LC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 475
Bullock NO v Provincial Government, North West Province 2005 (5) SA 262 (SCA) 662
Burlingham v The Queen (1995) 28 CRR (2d) 244 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 808
Bushula v Permanent Secretary, Department of Welfare, Eastern Cape 2000 (2) SA 849
(E) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204
C
C v Department of Health and Social Development, Gauteng 2012 (2) SA 208
(CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189, 599, 605, 718
Calibre Clinical Consultants (Pty) Ltd v National Bargaining Council for the Road
Freight Industry 2010 (5) SA 457 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 658, 701
Campbell v MGN Ltd 2004 UKHL 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 302
Camps Bay Ratepayers’ and Residents’ Association v Harrison 2011 (4) SA 42 (CC) 64
Canon KwaZulu-Natal (Pty) Ltd t/a Canon Office Automation v Booth 2005 (3) SA 205
(N) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 471
Cape Bar Council v Judicial Service Commission 2012 (4) BCLR 406 (WCC) . . . . . 715
Cape Killarney Property Investments (Pty) Ltd v Mahamba 2001 (4) SA 1222 (SCA) 589
Cape Metropolitan Council v Metro Inspection Services (Western Cape) CC 2001 (3)
SA 1013 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43, 44, 659, 704
Carephone (Pty) Ltd v Marcus NO 1999 (3) SA 304 (LAC); (1998) 19 ILJ 1425
(LAC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 479, 480, 713, 730
Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC) . . . . . . . . 31, 61, 63, 64,
67, 98, 114, 201, 203, 250, 263, 282, 369, 556
Carmichele v Minister of Safety and Security 2003 (2) SA 656 (C) . . . . . . . . . . . . . 263, 283
Carter v Value Truck Rental (Pty) Ltd (2005) 26 ILJ 711 (SE) . . . . . . . . . . . . . . . . . . . 481
Case v Minister of Safety and Security 1996 (3) SA 617 (CC) . . . . . 186, 299, 351, 363, 747
Cele v South African Social Security Agency 2009 (5) SA 105 (D) . . . . . . . . . . . . . . . 205
Central Hudson Gas v Public Services Commission 447 US 557 (1979) . . . . . . . . . . . 361
xii
Table of Cases
Centre for Child Law v MEC for Education, Gauteng 2008 (1) SA 223 (T) . . . 597, 605, 610,
612
Centre for Child Law v Minister for Justice and Constitutional Development 2009 (6)
SA 632 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155, 166, 186, 191, 600, 616, 621, 623
Centre for Child Law v Minister of Basic Education [2012] 4 All SA 35 (ECG) . . . . . 597
Centre for Child Law v Minister of Home Affairs 2005 (6) SA 50 (T) . . . . . . . . . . . . . 612
Centre for Child Law v Minister of Justice and Constitutional Development [2008] JDR
1377 (T), [2008] JOL 22687 (T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 616
Centre for Child Law v Minister of Justice and Constitutional Development 2009 (2)
SACR 477 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 615
Centre for Child Law v Minister of Social Development (North Gauteng High Court)
unreported case no 21726/11 (7 April 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 609
Centre for Social Accountability v Secretary of Parliament 2011(5) SA 279 (ECG) . . 696
Certification of the Amended Text of the Constitution of the Republic of South Africa,
1996 1997 (2) SA 97 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 426, 463, 464, 635, 819
Certification of the Constitution of the Western Cape, 1997 1997 (4) SA 795 (CC). . . . 15, 19,
327
Chagi v Special Investigating Unit 2009 (2) SA 1 (CC) . . . . . . . . . . . . . . . . . . . . . . . . 99
Chairman, State Tender Board v Digital Voice Processing (Pty) Ltd 2012 (2) SA 16
(SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Chairpersons’ Association v Minister of Arts and Culture 2007 (5) SA 236 (SCA) . . . 668
Chamber of Mines of SA v Council of Mining Unions (1990) 11 ILJ 52 (IC) . . . . . . . 509
Chaplinksy v New Hampshire 315 US 568 (1942) . . . . . . . . . . . . . . . . . . . . . . . 341, 342, 363
Chassagnou v France (2000) 29 EHRR 615 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 401
Chetty v Naidoo 1974 (3) SA 13 (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 587
Chicago Police Department v Mosely 408 US 92 (1972) . . . . . . . . . . . . . . . . . . . . . . . 391
Chief Lesapo v North West Agricultural Bank 2000 (1) SA 409 (CC) . . . . . 77, 116, 187, 193
Children’s Institute v President Officer, Children’s Court, Krugersdorp 2013 (2) SA 620
(CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
Children’s Resource Centre Trust v Pioneer Food (Pty) Ltd 2013 (2) SA 213 (SCA) . . 81
Chirwa v Transnet Ltd 2008 (4) SA 367 (CC); (2008) 29 ILJ 73 (CC) . . . . . . . . . . . 479, 660
Christian Education SA v Minister of Education 1999 (4) SA 1092 (SE) . . . . . . . . . 254, 284,
320, 614, 637
Christian Education South Africa v Minister of Education 2000 (4) SA 757 (CC). . . 137, 153,
168, 173, 253, 281, 317, 320, 322, 329, 332,
397, 406, 408, 415, 416, 602, 613, 614, 633
Christian Lawyers’ Association of South Africa v Minister of Health 1998 (4) SA 1113
(T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 266, 602, 603
Christian Lawyers’ Association v National Minister of Health 2005 (1) SA 509
(T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 266, 286, 599
Church of the Province of SA, Diocese of Cape Town v CCMA 2002 (3) SA 401
(LC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 318
Cisse v France (2002) ECHR 400 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 389
City Council of Pretoria v Walker 1998 (2) SA 363 (CC) . . . . . . . . . . 142, 143, 161, 197, 225,
238, 239, 240, 241, 431
City of Cape Town v Ad Outpost 2000 (2) SA 733 (C) . . . . . . . . . . . . . . . . . . . . . . . 361, 462
City of Cape Town v Premier, Western Cape 2008 (6) SA 345 (C) . . . . . . . . . . . . . . . 665
City of Cape Town v Rudolph 2004 (5) SA 39 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199
City of Cape Town v Unlawful Occupiers, Erf 1800, Capricorn 2003 (6) SA 140 (C) 588
xiii
City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty)

Ltd 2012 (2) SA 104 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . 532, 582, 585, 590, 591, 596
City of Johannesburg v Changing Tides 74 (Pty) Ltd 2012 (6) SA 294 (SCA) . 589, 590, 591
City of Tshwane Metropolitan Council v SALGBC (2011) 32 ILJ 2493 (LC) . . . . . . . 507
City of Tshwane Metropolitan Municipality v Cable City (Pty) Ltd 2010 (3) SA 589
(SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 651
Claase v Information Officer, South African Airways (Pty) Ltd 2007 (5) SA 469
(SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 705
Claasen v Minister of Justice and Constitutional Development 2010 (2) SACR 451
(WCC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 779
Clark v Community for Creative Non-Violence 468 US 288 (1984) . . . . . . . . . . . . . . 392
Clarke v Hurst NO 1992 (4) SA 630 (D) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267
Clutchco (Pty) Ltd v Davis 2005 (3) SA 486 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . 704
CM v NG 2012 (4) SA 452 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 606
Coates v Cincinnati (1961) 402 US 611 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 380
Coetzee v Comitis 2001 (1) SA 1254 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39, 730
Coetzee v Government of the Republic of South Africa 1995 (4) SA 631 (CC). . . . . 167, 183,
185, 186, 194, 277, 278, 751, 755, 756
Coetzee v National Commissioner of Police 2011 (1) SACR 132 (GNP) . . . . . . . . . . . 779
Coetzer v Minister of Safety & Security 2003 (3) SA 368 (LC), (2003) 24 ILJ 163
(LC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 503, 504, 506
Collin v Smith 439 US 916 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 355
Collins v Minister of the Interior 1957 (1) SA 552 (A) . . . . . . . . . . . . . . . . . . . . . . . . . 3
Colonial Development (Pty) Ltd v Outer West Local Council 2002 (2) SA 589 (N) . 549, 654
Commercial Farmers Union v Minister of Lands, Agriculture and Resettlement,
Zimbabwe 2001 (2) SA 925 (ZS) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 401
Committee for the Commonwealth of Canada v Canada (1991) 77 DLR (4th) 385 . . . 158
Competition Commission of SA v Telkom SA Ltd [2010] 2 All SA 433 (SCA) . . . . . 682
Concerned Land Claimants’ Organisation of Port Elizabeth v Port Elizabeth Land and
Community Restoration Association 2007 (2) SA 531 (CC) . . . . . . . . . . . . . . . . . 560
Concorde Plastics (Pty) Ltd v NUMSA 1997 (11) BCLR 1624 (LAC) . . . . . . . . . . . . . 717
Conjwayo v Minister of Justice, Legal and Parliamentary Affairs 1992 (2) SA 56 (ZS) 784
Cox v Louisiana 379 US 536 (1965) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 392
Cronje v United Cricket Board of South Africa 2001 (4) SA 1361 (T) . . . . . . . . . . . . . 417
Cruzan v Director Missouri Dept of Health 497 US 261 . . . . . . . . . . . . . . . . . . . . . . . . 266
CUSA v Tao Ying Metal Industries 2009 (2) SA 204 (CC) . . . . . . . . . . . . . . . . . . . . . . 103
D
Dadoo Ltd v Krugersdorp Municipal Council 1920 AD 530 . . . . . . . . . . . . . . . . . . . . . 464
Daimler Co Ltd v Continental Tyre and Rubber Co (Great Britain) Ltd [1916] 2
AC 307 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 464
Daniels v Campbell NO 2004 (5) SA 331 (CC) . . . . . . . . . . . . . . . . . . 59, 136, 189, 232, 336
Davis v Tipp NO 1996 (1) SA 1152 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 752
Dawood v Minister of Home Affairs 2000 (1) SA 997 (C) . . . . 79, 85, 86, 140, 143, 256, 454
Dawood v Minister of Home Affairs 2000 (3) SA 936 (CC) . . . . . . . . . . . . . 60, 116, 117, 156,
161, 179, 184, 186, 188, 192, 193, 252, 253, 257, 387, 408, 445, 526, 604, 605, 672
De Beer NO v North-Central Local Council and South-Central Local Council 2002 (1)
SA 429 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60, 132, 711
De Beer v Raad vir Gesondheidsberoepe van Suid-Afrika 2004 (3) BCLR 284 (T) . . 719
xiv
Table of Cases
De Beers Consolidated Mines Ltd v Ataqua Mining (Pty) Ltd [2007] ZAFSHC 74 . . 554
De Freitas v Society of Advocates of Natal 1998 (11) BCLR 1345 (CC) . . . . . . . . . 123, 410
De Freitas v Society of Advocates of Natal 2001 (3) SA 750 (SCA) . . . . . . . . . . . . . 410, 466
De Gree v Webb 2007 (5) SA 184 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 621
De Jager v Attorney-General Natal 1967 (4) SA 143 (D) . . . . . . . . . . . . . . . . . . . . . . . 779
De Jonge v Oregon 299 US 353 (1937) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 385
De Klerk v Du Plessis 1994 (6) BCLR 124 (T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 367
De Kock NO v Van Rooyen 2005 (1) SA 1 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 737
De Lange v Eskom Holdings Ltd 2012 (1) SA 280 (GSJ) . . . . . . . . . . . . . . . . . . . . . . . 707
De Lange v Smuts NO 1998 (1) SA 736 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 278
De Lange v Smuts NO 1998 (3) SA 785 (CC). . . . . . . . . . . . 11, 12, 18, 20, 58, 116, 142, 185,
191, 194, 271, 272, 273, 274, 276, 278, 279, 280, 673, 711, 732, 738, 801
De Lille v Speaker of the National Assembly 1998 (3) SA 430 (C) . . . . . . . 42, 161, 353, 406
De Reuck v Director of Public Prosecutions, Witwatersrand Local Division 2002 (6) SA
370 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80, 87
De Reuck v Director of Public Prosecutions, Witwatersrand Local Division 2003 (3) SA
389 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 621, 622
De Reuck v Director of Public Prosecutions (Witwatersrand Local Division) 2004 (1)
SA 406 (CC) . . . . . . . . . . . . . . . . . . . . . . . 77, 80, 122, 123, 125, 134, 167, 302, 341, 342,
351, 363, 364, 620, 621, 622
Delange v Costa 1989 (2) SA 857 (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 256, 365
Delaware v Prouse 440 US 648 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 452
Democratic Alliance v Acting National Director of Public Prosecutions 2012 (3) SA
486 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74, 665
Democratic Alliance v Ethekwini Municipality [2010] ZASCA 221 . . . . . . . . . . . . . . 665
Democratic Alliance v National Director of Public Prosecutions 2012 (3) SA 486
(SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 665
Democratic Alliance v President of the Republic of South Africa 2013 (1) SA 248
(CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 670, 672
Democratic Party of the United States v Wisconsin 450 US 107 (1981) . . . . . . . . . . . 405
Democratic Party v Minister of Home Affairs 1999 (3) SA 254 (CC) . . . . . . . . . . . . 239, 431
Den Braven SA (Pty) Ltd v Pillay 2008 (6) SA 229 (D) . . . . . . . . . . . . . . . . . . . . . . . . 471
Dendy v University of the Witwatersrand 2007 (5) SA 382 (SCA) . . . . . . . . . . . . . . . . 256
Denel (Pty) Ltd v Gerber (2005) 6 ILJ 1256 (LAC) . . . . . . . . . . . . . . . . . . . . . . . . . . . 475
Dennis v US 341 US 494 (1951) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 355
Department of Land Affairs v Goedgelegen Tropical Fruits (Pty) Ltd 2007 (6) SA 199
(CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 559
Despatch Municipality v Sunridge Estate and Development Corporation (Pty) Ltd 1997
(4) SA 596 (SE) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 587
Diaz v Pan American World Airlines Inc 442 F2d 1273 (9th Circ) (1981) . . . . . . . . . . 508
Die Spoorbond v South African Railways 1946 AD 999 . . . . . . . . . . . . . . . . . . . . . . . . 367
Diepsloot Residents & Landowners Association v Administrator, Transvaal 1993 (3)
SA 49 (T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 535
Diggers Development (Pty) Ltd v City of Matlosana [2010] ZAGPPHC 15 . . . . . . . . 669
Dikoko v Mokhatla 2006 (6) SA 235 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . 180, 256, 297, 353
Dilworth v Reichard 2003 (4) BCLR 388 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 752
Director of Public Prosecutions v Regional Magistrate, Durban 2001 (2) SACR 463
(N) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 799
xv
Director of Public Prosecutions, Cape of Good Hope v Robinson 2005 (4) SA 1

(CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99, 120, 122, 453
Director of Public Prosecutions, KwaZulu-Natal v P 2006 (1) SACR 243 (SCA) . . . . 615
Director of Public Prosecutions, Natal v Magidela 2001 (1) SACR 458 (SCA) . . . . . . 759
Director of Public Prosecutions, Transvaal v Minister of Justice and Constitutional
Development 2009 (4) SA 222 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 613, 621
Director of Public Prosecutions, Transvaal v Viljoen 2005 (1) SACR 505 (SCA) . . . . 759
Director of Public Prosecutions: Cape of Good Hope v Bathgate 2000 (2) SA 535
(C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 295, 540, 747
Director: Mineral Development, Gauteng Region v Save the Vaal Environment 1999 (2)
SA 709 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 528
Director-General of the Department of Labour v Jinghua Garments (Pty) Ltd (2007) 28
ILJ 880 (LC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 515
Director-General, Department of Labour v Win-Cool Industrial Enterprise (Pty) Ltd
(2007) 28 ILJ 1774 (LC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 515
Directory Advertising Cost Cutters v Minister for Posts, Telecommunications and
Broadcasting 1996 (3) SA 800 (T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 467, 659
Direkteur van Openbare Vervolgings, Transvaal v Makwetsja [2003] 2 All SA 249 (T) 615
Djavit An v Turkey (2003) ECHR 91 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 386
Dlusha v King Sabata Dalindyebo Municipality 2012 (4) SA 407 (ECM) . . . . . . . . . . 692
Doctors for Life International v Speaker of the National Assembly 2006 (6) SA 416
(CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 15, 21, 87, 103, 105, 106, 182, 193, 421
Dormehl v Minister of Justice 2000 (2) SA 987 (CC) . . . . . . . . . . . . . . . . . 88, 128, 129, 714
Dowell v City of Tulsa 348 US 912 (1955) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287
DTA of Namibia v Prime Minister of the Republic of Namibia 1996 (3) BCLR 310
(NmH) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 429
Du Plessis v De Klerk 1996 (3) SA 850 (CC) . . . . . . . . . . . . . . . 32, 33, 34, 45, 46, 53, 54, 60,
63, 66, 67, 156, 367
Du Plessis v Road Accident Fund 2004 (1) SA 359 (SCA) . . . . . . . . . . . . . . . . . . . . 230, 233
Du Preez v Attorney-General, Eastern Cape 1997 (2) SACR 375 (E) . . . . . . . . . . . . 752, 799
Du Toit v Minister of Transport 2003 (1) SA 586 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . 555
Du Toit v Minister of Transport 2006 (1) SA 297 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . 552
Du Toit v Minister of Welfare and Population Development 2001 (12) BCLR 125
(T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 604
Du Toit v Minister of Welfare and Population Development 2003 (2) SA 198 (CC) . . . . . 116,
188, 230, 408, 608, 617, 620
Dudley v City of Cape Town (2004) 25 ILJ 305 (LC) . . . . . . . . . . . . . . . . . . . . . . . . . . 500
Dudley v City of Cape Town (2008) 29 ILJ 2685 (LAC) . . . . . . . . . . . . . . . . . . . . . . . 500
Dutch Reformed Church Vergesig v Sooknunan 2012 (6) SA 201 (GSJ) . . . . . . . . . . . 303
DVB Behuising (Pty) Ltd v North West Provincial Government, In re: Western Cape
Provincial Government 2001 (1) SA 500 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
E
Eagles’ Landing Body Corporate v Molewa NO 2003 (1) SA 412 (T) . . . . . . . . . . . . . 75
East London LTC v MEC for Health, Eastern Cape 2001 (3) SA 1133 (Ck) . . . . . . . . 206
East Zulu Motors v Empangeni/Ngwelezane Transitional Council 1998 (2) SA 61
(CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
Eastern Metropolitan Substructure v Peter Klein Investments (Pty) Ltd 2001 (4) SA 661
(W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
xvi
Table of Cases
Edwards v City of Coeur d’Alene (2001) 262 F 3d 856 . . . . . . . . . . . . . . . . . . . . . . . . 392

Edwards v South Carolina 372 US 229 (1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 392
Ehrlich v CEO Legal Aid Board 2006 (1) SACR 346 (E) . . . . . . . . . . . . . . . . . . . . . . . 770
Ehrlich v Minister of Correctional Services 2009 (2) SA 373 (E); 2009 (1) SACR 588
(E) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 671, 784
Eilo v Permanent Secretary of Education (2009) 30 ILJ 2806 (LCN) . . . . . . . . . . . . . . 505
Eisenberg and Associates v Minister of Home Affairs 2003 (5) BCLR 514 (C) . . . . . . 83
Elliott v Commissioner of Police, Zimbabwe 1998 (1) SA 21 (ZS) . . . . . . . . . . . . . . . 452
Ellish v Prokureur-Generaal WPA 1994 (2) SACR 579 (W) . . . . . . . . . . . . . . . . . . . . . 779
Els v Minister of Safety and Security 1998 (2) SACR 93 (NC) . . . . . . . . . . . . . . . . . . 747
EN v Government of RSA 2007 (1) SA BCLR 84 (D) . . . . . . . . . . . . . . . . . . . . . . . . . 199
Engel v Vitale 370 US 421 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 315
Engelbrecht v Road Accident Fund 2007 (6) SA 96 (CC) . . . . . . . . . . . . . . . . . . . . . . . 723
Entertainment Commercial Catering & Allied Workers Union of SA v Southern Sun
Hotel Interests (Pty) Ltd (2000) 21 ILJ 1090 (LC) . . . . . . . . . . . . . . . . . . . . . . . . . 494
Epstein v Epstein 1906 TH 87 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 296
Equisec (Pty) Ltd v Rodrigues 1999 (3) SA 113 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . 750
Equity Aviation Services (Pty) Ltd v CCMA 2009 (1) SA 390 (CC) . . . . . . . . . . . . . . 99, 182
Escobedo v Illinois 378 US 478 (1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 769
Eskom Holdings Ltd v New Reclamation Group (Pty) Ltd 2009 (4) SA 628 (SCA) . . 670
Eskom v Hiemstra NO (1999) 20 ILJ 2362 (LC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 506
Estate of Thornton v Caldor 472 US 703 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 326
eThekwini Municipality v Spetsiotis [2009] JOL 24536 (KZD) . . . . . . . . . . . . . . . . . . 550
Evans v Friemann (1981) 35 ALR 428 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 657
Eveleth v Minister of Home Affairs 2004 (11) BCLR 1223 (T) . . . . . . . . . . . . . . . . . . 205
Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd 2012 (1) SA 256
(CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 123
Everson v Board of Education of the Township of Ewing 330 US 1 (1947) . . . . . . . . 326
Ex parte Attorney-General, Namibia: In re Corporal Punishment by Organs of State
1991 (3) SA 76 (NmSC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137, 284
Ex parte Attorney-General, Namibia: In Re The Constitutional Relationship between
the Attorney-General and the Prosecutor-General 1995 (8) BCLR 1070 (NmS) . . 21
Ex parte BOE Trust Ltd 2009 (6) SA 470 (WCC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 554
Ex parte Chairperson of the Constitutional Assembly: in re Certification of the Consti-
tution of the Republic of South Africa 1996 (First Certification judgment) 1996
(4) SA 744 (CC) . . . . . . . . . . . . . . . . . . . . . . 5, 6, 7, 19, 21, 36, 495, 532, 534, 536, 567,
568, 570, 604, 698, 738
Ex parte Dabelstein v Hildebrandt [1996] 2 All SA 17 (C) . . . . . . . . . . . . . . . . . . . . . . 311
Ex parte Gauteng Provincial Legislature: In re Dispute Concerning the Constitutionality
of Certain Provisions of the Gauteng School Education Bill of 1995 1996 (3) SA
165 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144, 332, 408, 409, 631, 636, 640
Ex parte Minister of Justice: In re R v Matemba 1941 AD 75 . . . . . . . . . . . . . . . . . . . 774
Ex parte Minister of Safety and Security: In re S v Walters 2002 (4) SA 613
(CC) . . . . . . . . . . . . . . . . . . . . . . . . 19, 57, 69, 86, 101, 165, 187, 191, 259, 261, 282, 801
Ex parte Minister of Social Development 2006 (4) SA 309 (CC) . . . . . . . . . . . . . . . . . 195
Ex parte Ndabangaye 2004 (4) BCLR 378 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 463, 466
Ex parte Nell 1963 (1) SA 754 (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196
Ex parte Omar 2003 (10) BCLR 1087 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
Ex parte Optimal Property Solutions CC 2003 (2) SA 136 (C) . . . . . . . . . . . . . . . . . . . 536
xvii
Ex parte Singer: Law Society Transvaal Intervening 1984 (2) SA 757 (A) . . . . . . . . . 466
Ex parte Speaker of the National Assembly: In re Dispute Concerning the
Constitutionality of Certain Provisions of the National Education Policy Bill 83 of
1995 1996 (3) SA 289 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179, 195
Ex parte Van Niekerk [2005] JOL 14218 (T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 618
Ex parte Women’s Legal Centre: In re Moise v Greater Germiston Transitional Local
Council 2001 (4) SA 1288 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52, 130
Executive Council of the Western Cape Legislature v President of the Republic of South
Africa 1995 (4) SA 877 (CC) . . . . . . . . . . . . . . . . . . . 9, 19, 128, 184, 190, 192, 193, 375
Executive Council, Western Cape v Minister of Provincial Affairs 2000 (1) SA 661
(CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141, 144, 192, 431
Ezelin v France (1991) 14 EHRR 362 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 379
F
Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA) . . . . . . . . . . . . . . . . . . . . 205
Farr v Mutual & Federal Insurance Co Ltd 2000 (3) SA 684 (C) . . . . . . . . . . . . . . . . . 61
Federation for Sustainable Environment v Minister of Water Affairs [2012] ZAGPPHC
140 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 592
Federation of Governing Bodies of South African Schools (Gauteng) v MEC for
Education, Gauteng 2002 (1) SA 660 (T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205
Fedics Group (Pty) Ltd v Matus 1998 (2) SA 617 (C) . . . . . . . . . . . . . . . . . . . . 308, 310, 311
Fedlife v Wolfaardt (2001) 22 ILJ 2407 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 480
Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council
1999 (1) SA 374 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 107, 141, 650
Feedmill Development (Pty) Ltd v Attorney-General of KwaZulu Natal 1998 (2) SACR
539 (N) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 799
Ferela v Commissioner for Inland Revenue 1998 (9) BCLR 1085 (T) . . . . . . . . . . . . . 44
Ferreira v Levin & Vryenhoek v Powell NO 1996 (1) BCLR 1 (CC) . . . . . . . . . . . . 750, 751
Ferreira v Levin NO 1995 (2) SA 813 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
Ferreira v Levin NO 1996 (1) SA 984 (CC) . . . . . . . . . . 16, 22, 27, 37, 51, 57, 73, 74, 75, 76,
77, 78, 79, 80, 83, 85, 140, 143, 144, 167, 179, 185,
186, 189, 252, 270, 271, 273, 275, 279, 310, 535, 695
Financial Mail and Motor Industry Fund Administration v Janit 1994 (3) SA 56 (W) 296
Financial Mail v Sage Holdings 1993 (2) SA 451 (A) . . . . . . . . . . . . . . . . . . . . . . . . . . 296
Financial Services Board v De Wet NO 2002 (3) SA 525 (C) . . . . . . . . . . . . . . . . . . . . 75
Financial Services Board v Pension Fund 1999 (1) SA 167 (C) . . . . . . . . . . . . . . . . . . 733
First English Evangelical Lutheran Church of Glendale v County of Los Angeles,
California 482 US 304 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 548
First National Bank of Boston v Belloti 435 US 765 (1978) . . . . . . . . . . . . . . . . . . . . . 344
First National Bank of SA Ltd t/a Wesbank v Commissioner for the South African
Revenue Service 2001 (3) SA 310 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 464
First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Services
2002 (4) SA 768 (CC). . . . . . . . . . . . . . . . . . . 37, 152, 185, 388, 532, 533, 534, 535, 536,
537, 538, 540, 542, 543, 544, 545, 546, 550, 554, 557, 558, 720
First National Bank of SA Ltd v Rosenblum 2001 (4) SA 189 (SCA) . . . . . . . . . . . . . 61
First National Bank of South Africa Ltd v Land and Agricultural Bank of South Africa
2000 (3) SA 626 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116, 186, 190, 192, 718
First National Bank v Land and Agricultural Bank 2000 (6) BCLR 586 (O) . . . . . . . . 79
Fletcher v Fletcher 1948 (1) SA 130 (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 619
xviii
Table of Cases
Flynn v Farr NO 2009 (1) SA 584 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220, 237

Former Highlands Residents, in re Ash v Department of Land Affairs [2000] 2 All SA
26 (LCC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 551
Fortuin v Cobra Promotions CC 2010 (5) SA 288 (ECP) . . . . . . . . . . . . . . . . . . . . . . . 704
Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) . . . . . . . . . . . . 16, 70, 132, 148,
179, 180, 181, 182, 189, 201, 202, 203
Fourie v Minister of Home Affairs 2005 (3) SA 429 (SCA) . . . . . . . . . . . . . . . . . . . . . 59, 230
Fourie v Provincial Commissioner of the SA Police Service (North West Province)
(2004) 25 ILJ 1716 (LC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 505
Fourways Mall (Pty) Ltd v South African Commercial Catering 1999 (3) SA 752
(W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 379, 384
Frans v Paschke 2009 (1) SA 527 (Nm) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 236
Fraser v Absa Bank 2007 (3) SA 484 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97, 98, 123
Fraser v Children’s Court, Pretoria North 1997 (2) SA 261 (CC). . . . 228, 334, 408, 606, 620
Fraser v Naude 1999 (1) SA 1 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127, 607
Fredericks v Member of the Executive Council Responsible for Education & Training
in the Eastern Cape Province (2001) 22 ILJ 2603 (E) . . . . . . . . . . . . . . . . . . . . . . 478
Fredericks v MEC for Education and Training, Eastern Cape 2002 (2) SA 693 (CC);
(2002) 23 ILJ 81 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101, 473, 478, 479, 480
Freedom Front v South African Human Rights Commission 2003 (11) BCLR 1283
(SAHRC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 357
Freedom of Expression Institute v President of the Ordinary Court Martial NO 1999 (2)
SA 471 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84, 88, 280, 739, 795
Freedom Under Law v Acting Chairperson, Judicial Service Commission 2011 (3) SA
549 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74, 665, 735
Frisby v Schultz 487 US 474 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 391
Fuel Retailers Association of Southern Africa v Director-General: Environmental
Management, Department of Agriculture, Conservation and Environment, Mpuma-
langa Province 2007 (6) SA 4 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 523, 524, 652
Furman v Georgia 408 US 238 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169, 255
G
Gamevest (Pty) Ltd v Regional Lands Claims Commissioner for the Northern Province
and Mpumalanga 2003 (1) SA 373 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 657
Garces v Fouche 1998 (2) SACR 451 (NmHc) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 776, 777
Garden Cities Inc Association v Northpine Islamic Society 1999 (2) SA 268 (C) . . . . 40, 320
Gardener v Whitaker 1996 (4) SA 337 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53, 55, 63
Garvas v SATAWU 2010 (6) SA 280 (WCC), (2010) 31 ILJ 2521 (WCC) . . . . . . . . . 497
Gcaba v Minister of Safety and Security 2010 (1) SA 238 (CC); (2010) 31 ILJ 296
(CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 479, 664
Geldenhuys v National Director of Public Prosecutions 2009 (2) SA 310 (CC) . 87, 182, 229
Gellman v Minister of Safety & Security 2008 (1) SACR 446 (W) . . . . . . . . . . . . . . . 778
General Council of the Bar of South Africa v Van der Spuy 1999 (1) SA 577 (T) . . . . 411
Geuking v President of the Republic of South Africa 2003 (3) SA 34 (CC) . . . 453, 654, 751
Geyser v Msunduzi Municipality 2003 (5) SA 18 (N) . . . . . . . . . . . . . . . . . . . . . . . . . . 550
Giant Concerts CC v Rinaldo Investments (Pty) Ltd 2013 (3) BCLR 251 (CC) . . . . . 75
Giddey NO v JC Barnard and Partners 2007 (5) SA 525 (CC) . . . . . . . . . . . . . . . . . . . 728
Gillick v West Norfolk [1986] 1 AC (HL) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601
Glaxo Welcome (Pty) Ltd v Terblanche 2001 (4) SA 891 (CAC) . . . . . . . . . . . . . . . . . 732
xix
Glenister v President of the Republic of South Africa 2009 (1) SA 287 (CC) . . . . . . . 87, 182
Glenister v President of the Republic of South Africa 2011 (3) SA 347 (CC) . . . . . . 194, 570
Goldberg v Minister of Prisons 1979 (1) SA 14 (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . 784
Goldman v Weinburger 475 US 503 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 633
Goodwin v United Kingdom (2002) 35 EHRR 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 344
Gooprushad v R 1914 35 NLR 87 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 774
Gordon v Department of Health, KwaZulu-Natal 2008 (6) SA 522 (SCA), (2008) 29 ILJ
2535 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215, 506
Gordon v Department of Health, KwaZulu-Natal (2004) 25 ILJ 1431 (LC) . . . . . . . . . 506
Gory v Kolver NO 2007 (4) SA 97 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188, 230
Govender v Minister of Safety and Security 2001 (4) SA 273 (SCA). . . . . . . . . 58, 59, 63, 64,
167, 262, 282, 383
Governing Body of the Juma Musjid Primary School v Essay NO 2011 (8) BCLR 761
(CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122, 570, 600, 610, 621
Government of Malaysia v Selangor Pilot Association [1978] AC 337 (PC) . . . . . . . 540, 549
Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) . . . 143, 147,
196, 408, 522, 523, 529, 559, 565, 569, 570, 571, 574, 575, 576, 577, 578, 579, 580,
581, 582, 583, 584, 585, 586, 595, 596, 610, 611, 612, 620
Government of the Republic of South Africa v Thabiso Chemicals (Pty) Ltd 2009 (1)
SA 163 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 659
Government of the Republic of South Africa v Von Abo 2011 (5) SA 262 (SCA) . . . 183, 202,
447, 448
Greathead v SACCAWU (2001) 22 ILJ 595 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 485
Greeff v Protection 4U h/a Protect International 2012 (6) SA 392 (GNP) . . . . . . . . . . 296
Greenfields Drilling CC v Registrar of the Supreme Court of Appeal 2010 (11) BCLR
113 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 731
Gregory v Chicago 394 US 111 (1969) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 392
Grey’s Marine Hout Bay (Pty) Ltd v Minister of Public Works 2005 (6) SA 313
(SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 662, 663, 664, 665
Griggs v Duke Power Co 401 US 424 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 238
Griswold v Connecticut 381 US 479 (1965) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 407
Grobler v Naspers Bpk 2004 (4) SA 220 (C), (2004) 25 ILJ 439 (C) . . . . . . . . . . . . . . 501
Grootboom v Oostenberg Municipality 2000 (3) BCLR 277 (C) . . . . . . . . 196, 197, 408, 595
Gumede v President of the Republic of South Africa 2009 (3) SA 152 (CC) . . . . . . . . 637
Gundwana v Steko Development CC 2011 (3) SA 608 (CC) . . . . . . . . . . . . . . . . . . . . 191
Gutierrez v Municipal Court 838 F 2d 1031 (9th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . 635
Guzzardi v Italy 3 EHRR 333 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273
H
H v Belgium 10 EHRR 339 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 739
Hack v Venterspost Municipality 1950 (1) SA 172 (W) . . . . . . . . . . . . . . . . . . . . . . . . 661
Hadebe v Minister of Home Affairs [2007] JOL 18906 (D) . . . . . . . . . . . . . . . . . . . . . 603
Haffejee NO v Ethekwini Municipality 2011 (6) SA 134 (CC) . . . . . . . . . . . . . 148, 532, 553
Hague v CIO 307 US 496 (1939) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 391
Hamata v Chairperson, Peninsula Technikon Internal Disciplinary Committee 2002 (5)
SA 449 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 678, 742, 772
Hamata v Peninsula Technikon Internal Disciplinary Committee 2000 (4) SA 621 (C) 343
Hamman v South West African People’s Organisation 1991 (1) SA 127 (SWA) . . . . . 425
Handyside v United Kingdom (1976) 1 EHRR 737 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 351
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Table of Cases
Hans v Minister van Wet en Orde 1995 (12) BCLR 1693 (C) . . . . . . . . . . . . . . . . . . . . 722
Hardy Ventures CC v Tshwane Metropolitan Municipality 2004 (1) SA 199 (T) . . . . . 205
Harksen v Attorney General Cape 1999 (1) SA 718 (C) . . . . . . . . . . . . . . . . . . . . . . . . 792
Harksen v Lane NO 1998 (1) SA 300 (CC) . . . . . . . . . . . . . 142, 167, 216, 217, 218, 223, 225,
227, 232, 236, 247, 336, 535, 548, 549, 550
Harksen v President of the Republic of South Africa 2000 (2) SA 825 (CC) . . . . . . . 57, 453
Harmse v City of Cape Town (2003) 24 ILJ 1130 (LC) . . . . . . . . . . . . . . . . . . . . . . . . 499
Harris v Minister of the Interior 1952 (2) SA 428 (A) . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Harris v New York 401 US 222 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 769
Hartman v Chairman, Board for Religious Objections 1987 (1) SA 923 (O) . . . . . . . . 317
Harvey v Umhlatuze Municipality 2011 (1) SA 601 (KZP) . . . . . . . . . . . . . . . . . . . . . 550
Hassam v Jacobs NO 2009 (5) SA 572 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189, 336
Hattingh v Juta 2012 (5) SA 237 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 632
Hay v B 2003 (3) SA 492 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 317, 324
Head of Department, Department of Education, Limpopo Province v Settlers
Agricultural High School 2003 (11) BCLR 1212 (CC) . . . . . . . . . . . . . . . . . . . . . 120
Head of Department, Mpumalanga Department of Education v Hoërskool Ermelo 2010
(2) SA 415 (CC) [50] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99, 600, 638, 639
Head, Western Cape Education Department v Governing Body, Point High School 2008
(5) SA 18 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 670
Hekpoort Environmental Preservation Society v Minister of Land Affairs 1998 (1) SA
349 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129, 130, 728
Herholdt v Nedbank Ltd [2012] 9 BLLR (LAC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 480
Heuer v Bruce-Alexander 2012 (6) SA 41 (ECG) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 605
Hichange Investments (Pty) Ltd v Cape Produce Co (Pty) Ltd t/a Pelts Products 2004
(2) SA 393 (E) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 520
Highveldridge Residents’ Concerned Party v Highveldridge TLC 2002 (6) SA 66 (T) 75
Hill v Colorado 530 US 703 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 389
Hintsho v Minister of Public Service and Administration 1996 (2) SA 828 (Tk) . . . . . 714
Hlatshwayo v Hein [1997] ZALCC 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 728
Hoffmann v SA Airways 2000 (2) SA 628 (W), (2000) 21 ILJ 891 (W) . . . . . . . . . . . 508
Hoffmann v South African Airways 2001 (1) SA 1 (CC), (2000) 21 ILJ 2357 (CC) . . . . . 131,
156, 181, 182, 183, 206, 237, 238, 508
Holomisa v Argus Newspapers 1996 (2) SA 588 (W). . . . . . . . . . . . . . . . . . . 61, 65, 344, 367
Holomisa v Khumalo 2002 (3) SA 38 (T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 370
Hospital Association of SA Ltd v Minister of Health 2010 (10) BCLR 1047 (GNP) . . 651
HTF Developers (Pty) Ltd v Minister of Environmental Affairs and Tourism 2006 (5)
SA 512 (T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 519, 520, 522
Htlantlalala v Dyanti NO 1999 (2) SACR 541 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . 772
Huey Extreme Club v McDonald t/a Sport Helicopters 2005 (1) SA 485 (C) . . . . . . . 300
Human Rights Commission of South Africa v SABC 2003 (1) BCLR 92
(BCCSA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 358, 359
Hunter v Southam Inc (1985) 11 DLR (4th) 641 (SCC) . . . . . . . . . . . . . . . . . . . . . . . . 307
Hurenco Boedery (Pty) Ltd v Regional Land Claims Commissioner, Northern Province
2003 (4) SA 280 (LCC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 728
Hurly v Irish-American Gay, Lesbian and Bisexual Group of Boston (1995) 515 US
557 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 404
Hyundai Motor Distributors v Smit NO 2000 (2) SA 934 (T) . . . . . . . . . . . . . . . . . . . . 308
xxi
I
IMATU obo Gounden v eThekweni Municipality: Metro Electricity [2003] 10 BALR
1101 (SALGBC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 509
IMATU v Rustenburg Transitional Council (2000) 21 ILJ 377 (LC) . . . . . . . . . . . . . . 483
In re Certain Amicus Curiae Applications: Minister of Health v Treatment Action
Campaign 2002 (5) SA 713 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132
In re Mlambo 1992 (2) SACR 245 (Z) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 799
In re Munhumeso 1995 (1) SA 551 (ZS) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 379
In re The National Education Policy Bill No 83 of 1995 1996 (3) SA 289 (CC) . . . . . 179
Incorporated Trustees of the National Council on Ageing (Age Concern England)
v Secretary of State for Business, Enterprise and Regulatory Reform Case
C-388/07 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 234
Independent Electoral Commission v Langeberg Municipality 2001 (3) SA 925
(CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88, 124, 428
Independent Municipal & Allied Workers Union v City of Cape Town (2005) 26 ILJ
1404 (LC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 508
Independent Municipal & Allied Workers Union v Greater Louis Trichardt Transitional
Local Council (2000) 21 ILJ 1119 (LC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 506
Independent Newspapers (Pty) Ltd v Minister for Intelligence Services: In re Masetlha
v President of the Republic of South Africa 2008 (5) SA 31 (CC) . . . . . . . . . . . 348, 743
Industrial Development Corporation of South Africa Ltd v PFE International Inc (BVI)
2012 (2) SA 269 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 706
Industrial Manpower Projects (Pty) Ltd v Receiver of Revenue, Vereeniging 2001 (2)
SA 1026 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 721
Ingledew v Financial Services Board: In re Financial Services Board v Van der Merwe
2003 (4) SA 584 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
Inkatha Freedom Party v African National Congress 1994 (3) SA 578 (EN) . . . . . . . . 425
International Associational Machinists v Street (1961) 367 US 740 . . . . . . . . . . . . . . . 400
International Society for Krishna Consciousness, Inc v Lee 505 US 672 (1992) . . . . . 342
International Trade Administration Commission v SA Tyre Manufacturers Conference
[2011] ZASCA 137 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 652
International Trade Administration Commission v SCAW SA (Pty) Ltd 2012 (4) SA 618
(CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110, 123, 198
Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors
(Pty) Ltd: In re Hyundai Motor Distributors (Pty) Ltd v Smit NO 2001 (1) SA 545
(CC) . . . . . . . . . . . . . . . . . . . . . . . . 36, 57, 58, 59, 116, 136, 253, 300, 302, 303, 305, 308
Irvin & Johnson (Ltd) v Trawler and Line Fishing Union 2003 (3) SA 212 (LC); (2003)
24 ILJ 565 (LC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237, 512
Irwin Toy Ltd v Quebec (A–G) (1989) 58 DLR (4th) 577 . . . . . . . . . . . . . . . . . . . . . . 361
Isaacs v Minister van Wet en Orde 1996 (1) SACR 314 (A) . . . . . . . . . . . . . . . . . . . . . 777
Islamic Unity Convention v Independent Broadcasting Authority 2002 (4) SA 294
(CC) . . . . . . . . . . . . . . . . . . . . . . . . 122, 123, 125, 157, 168, 173, 180, 185, 196, 338, 354
Ismail v New National Party in the Western Cape [2001] JOL 8206 (C) . . . . . . . . . . . 648
Iversen v Norway Application Number 1468/62 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291
J
J v Director-General, Department of Home Affairs 2003 (5) SA 621 (CC). . . . . . . . . 154, 188,
193, 230
J v J 2008 (6) SA 30 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 607
xxii
Table of Cases
Jackson v City of Joliet 715 F 2d 1200, 1203 (7th Cir) (1983) . . . . . . . . . . . . . . . . . . 32, 564
Jacobs v Waks 1992 (1) SA 521 (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Jacobsen v Massachusetts 197 US 11 (1905) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287
Jaftha v Schoeman 2005 (2) SA 140 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188, 191, 569
Jaga v D÷nges NO 1950 (4) SA 653 (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135
Janit v Motor Industry Fund Administrators (Pty) Ltd 1995 (4) SA 293 (A) . . . . . . . . 310
Janse van Rensburg NO v Minister van Handel en Nywerheid 1999 (2) BCLR 204
(T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80, 469, 540, 558
Janse van Rensburg v Minister of Trade and Industry 2001 (1) SA 29 (CC) . . . . 87, 162, 186,
192, 305, 469, 541
Janse van Vuuren v Kruger 1993 (3) SA 842 (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 296
Jany v Staatssecretaris van Justitie [2003] All ER 193 (EC) . . . . . . . . . . . . . . . . . . . . . 461
Jayiya v Member of the Executive Council for Welfare, Eastern Cape 2004 (2) SA 611
(SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180, 204, 206
Johannesburg Metropolitan Municipality v Gauteng Development Tribunal 2010 (6) SA
182 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Johannesburg Municipality v Gauteng Development Tribunal 2010 (2) SA 554
(SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135
Johncom Media Investments Ltd v M 2009 (4) SA 7 (CC) . . . . . . . . 154, 344, 350, 599, 620
Jonker v The Manager of Gali Thembani/JJ Serfontein School (Eastern Cape High
Court, Grahamstown) unreported case no 94/2011 (19 March 2012) . . . . . . . . . . 610
Jooste v Botha 2000 (2) SA 199 (T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 607
Jooste v Score Supermarket (Pty) Ltd 1998 (9) BCLR 1106 (E) . . . . . . . . . . . . . . . . . . 727
Jooste v Score Supermarket Trading (Pty) Ltd 1999 (2) SA 1 (CC) . . 116, 131, 220, 727, 728
Joseph v City of Johannesburg 2010 (4) SA 55 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . 652
Joy Mining Machinery, a division of Harnischfeger (SA) (Pty) Ltd v NUMSA (2002) 23
ILJ 391 (LC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 511
JT Publishing v Minister of Safety and Security 1997 (3) SA 514 (CC) . . . . . . . 88, 195, 363
Judes v District Registrar of Mining Rights, Krugersdorp 1907 TS 1046 . . . . . . . . . . . 683
Judge President Hlophe v Premier, Western Cape 2012 (6) SA 13 (CC) . . . . . . . . . . 107, 125
Judicial Service Commission v Cape Bar Council 2013 (1) SA 170 (SCA) . . . . . . . . 13, 665
Juglal NO v Shoprite Checkers t/a OK Franchise Division 2004 (5) SA 248 (SCA) . . 720
Juta v Hattingh 2013 (3) SA 275 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 632
K
K v Minister of Safety and Security 2005 (6) SA 419 (CC) . . . . . . . . . . . . . . . . . . 47, 58, 283
K v The Regional Court Magistrate NO 1996 (1) SACR 434 (E) . . . . . . . . . . . . . . . . . 794
Kabuika v Minister of Home Affairs 1997 (4) SA 341 (C) . . . . . . . . . . . . . . . . . . . . . . 455
Kalla v The Master 1995 (1) SA 261 (T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 409
Kate v MEC for the Department of Welfare, Eastern Cape 2005 (1) SA 141 (SE) . . . . 206
Katz v United States 389 US 347 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 307
Kauesa v Minister of Home Affairs 1995 (11) BCLR 1540 (NmS) . . . . . . . . . . . . . . . . 340
Kaunda v President of the Republic of South Africa 2005 (4) SA 235 (CC) . . . . . . . . 55, 147,
264, 447
Kerkhoff v Minister of Justice and Constitutional Development 2011 (2) SACR 109
(GNP) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 790
Key v Attorney-General 1996 (4) SA 187 (CC); 1996 (2) SACR 113 (CC) . . . . . . . . . 54, 750,
751, 807
Khosa v Minister of Social Development 2004 (6) SA 505 (CC) . . . . . . . . . . . . . 35, 117, 152,
188, 268, 446, 454, 565, 578, 581, 599, 611, 620, 670
xxiii
Khosana v NDPP 2012 (1) SACR 176 (FB) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 751

Khumalo v Holomisa 2002 (5) SA 401 (CC). . . . . . . . . . . . . 44, 46, 48, 57, 65, 126, 256, 340,
341, 343, 344, 365, 369, 370, 371, 372, 397, 755
Khumalo v Potgieter [2000] 2 All SA 456 (LCC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 551, 553
Kidson v SA Associated Newspapers 1957 (3) SA 461 (W) . . . . . . . . . . . . . . . . . . . . . 296
Kiliko v Minister of Home Affairs 2006 (4) SA 114 (C) . . . . . . . . . . . . . . . . . . . . . . 443, 456
King v Attorneys’ Fidelity Fund Board of Control 2006 (1) SA 474 (SCA) . . . . . . . . . 105
Kitok v Sweden 96 ILR 637 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 628
Kiva v Minister of Correctional Services (2007) 28 ILJ 597 (E) [20] . . . . . . . . . . . . . . 662
Klass v Federal Republic of Germany (1979) 2 EHRR 214 . . . . . . . . . . . . . . . . . . . . . 158
Klein v Dainfern College 2006 (3) SA 73 (T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 651
Kleingeld v Heunis 2007 (5) SA 559 (T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 605
Klink v Regional Court Magistrate NO 1996 (3) BCLR 402 (SE) . . . . . . . . . . . . . . . . 795
Knop v Johannesburg City Council 1995 (2) SA 1 (A) . . . . . . . . . . . . . . . . . . . . . . . . . 203
Knox D’Arcy Ltd v Shaw 1996 (2) SA 651 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 470
Kokkinakis v Greece 17 EHRR 397 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 323
Kotze & Genis (Edms) Bpk v Potgieter 1995 (3) SA 783 (C) . . . . . . . . . . . . . . . . . . . . 470
Kotze v Kotze 2003 (3) SA 628 (T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 317
Koyabe v Minister of Home Affairs 2010 (4) SA 327 (CC) . . . . . . . . . . . . 685, 687, 688, 714
Kruger v President of the Republic of South Africa 2009 (1) SA 417 (CC) . . . . . . . . . 74, 119,
198, 672
Kruse v Johnson [1898] 2 QB 91 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 669
Kungwini Local Municipality v Silver Lakes Home Owners Association 2008 (6) SA
187 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 653
Kuter v South African Pharmacy Board 1953 (2) SA 307 (T) . . . . . . . . . . . . . . . . . . . . 78
Kuzwayo v Representative of the Executor in the Estate of the late Masilela [2011] 2
All SA 599 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 657
Kwalindile Community v King Sabato Dalindyebo Municipality 2013 (5) BCLR 531
(CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
KwaZulu-Natal Provincial Treasury v General Public Service Bargaining Council
2006 27 ILJ 163 (LC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 440
‘Kylie’ v Commission for Conciliation, Mediation and Arbitration (2010) 31 ILJ 1600
(LC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 475
L
La Lucia Sands Share Block Ltd v Barkhan 2010 (6) SA 421 (SCA) . . . . . . . . . . . . . . 696
Labour Party v Electoral Commission (CCT 14/99, May 1999, unreported) . . . . . . . 423, 425
Laerskool Middelburg v Departementshoof, Mpumalanga Departement van Onderwys
2003 (4) SA 160 (T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 409, 638
Lagadien v University of Cape Town (2000) 21 ILJ 2469 (LC) . . . . . . . . . . . . . . . . . . 499
Lakewood v Plain Dealer Publishing Co 486 US 750 (1988) . . . . . . . . . . . . . . . . . . . . 392
Lanborger v Sweden 12 EHRR 416 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 739
Lane and Fey NNO v Dabelstein 2001 (2) SA 1187 (CC) . . . . . . . . . . . . . . . . . 101, 123, 714
Lane v Dabelstein 2001 (2) SA 1187 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 728
Lappeman Diamond Cutting Works v MIB Group (No 1) 1997 (4) SA 908 (W) . . . . . 728
Larbi-Odam v Member of the Executive Council for Education (North-West Province)
1998 (1) SA 745 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156, 167, 237, 446, 454
Lategan v Lategan NO 2003 (6) SA 611 (D) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 663
Laubscher v Native Commissioner, Piet Retief 1958 (1) SA 546 (A) . . . . . . . . . . . . . . 661
xxiv
Table of Cases
Laugh It Off Promotions CC v SAB International (Finance) BV t/a SabMark

International 2006 (1) SA 144 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57, 362, 536
Lavigne v OPSEU (1986) 33 DLR (4th) 174 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 401
Lavigne v Ontario Public Service Employees Union [1991] SCR 211 . . . . . . . . . . . . . 483
Law Society of South Africa v Minister for Transport 2011 (1) SA 400 (CC) . . . 13, 281, 535
Law Society of South Africa v Minister of Transport 2010 (11) BCLR 1140 (GNP) . . 727
Law Society of the Transvaal v Machaka 1998 (4) SA 413 (T) . . . . . . . . . . . . . . . . . . 468
Law Society of the Transvaal v Tloubatla 1999 (11) BCLR 1275 (T) . . . . . . . . . . . . . 400
Lawrence v Texas 539 US 558 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 407
Lawrence v Verhoef NO 1993 (2) SA 328 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 345
Lawrie v Muir 1950 SC (J) 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 808, 809
Lawyers for Human Rights v Minister of Home Affairs 2003 (8) BCLR 891 (T) . . . . 751
Lawyers for Human Rights v Minister of Home Affairs 2004 (4) SA 125 (CC). . . . . . . 35, 56,
73, 83, 116, 168, 188, 276, 280, 447, 454
Le Roux v Dey 2011 (3) SA 274 (CC) . . . . . . . . . . . . . . . . . . . . . . . . 236, 251, 256, 365, 602
Le Roux v Minister of Safety & Security 2009 (2) SACR 252 (KZP) . . . . . . . . . . . . . 778
Lebowa Mineral Trust Beneficiaries Forum v President of the Republic of South Africa
2002 (1) BCLR 23 (T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 536
Lee v Minister of Correctional Services 2011 (2) SACR 603 (WCC) . . . . . . . . . . . . . . 786
Legal Aid Board v R 2009 (2) SA 262 (D) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 619
Legal Aid Board v The State 2011 (1) SACR 166 (SCA) . . . . . . . . . . . . . . . . . . . . . . . 770
Leonard Dingler Employee Representative Council v Leonard Dingler (Pty) Ltd (1998)
19 ILJ 285 (LC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 498, 509
Lesapo v North West Agricultural Bank 2000 (1) SA 409 (CC) . . . . . . . . . . . . . . . . . . 711
Letseng Diamonds Ltd v JCI Ltd 2007 (5) SA 564 (W) . . . . . . . . . . . . . . . . . . . . . . . . 78
Levack v Regional Magistrate, Wynberg 1999 (4) SA 747 (C) . . . . . . . . . . . . . . . . . . . 138
Levack v Regional Magistrate, Wynberg 2003 (1) SACR 187 (SCA) . . . . . . . . . . . . . 775
Lewis v Media24 Ltd (2010) 31 ILJ 2416 (LC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 499
Liberal Party v Electoral Commission 2004 (8) BCLR 810 (CC) . . . . . . . . . . . . . . . . . 424
Liebman v Attorney-General 1950 (1) SA 607 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 779
Lloyd v Tanner 407 US 551 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 388
LMT Beneficiaries Forum v President of Republic of South Africa 2002 (1) BCLR 33
(T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Lodi v MEC for Nature Conservation and Tourism, Gauteng 2005 (1) 556 SACR (T) 756
Logbro Properties CC v Bedderson NO 2003 (2) SA 460 (SCA) . . . . . . . . . . . . . . . . . 44, 649
Lombard v Minister van Verdediging 2002 (3) SA 242 (T) . . . . . . . . . . . . . . . . . . . . . . 205
Lotter and SA Police Service (2005) 26 ILJ 578 (BCA) . . . . . . . . . . . . . . . . . . . . . . . . 505
Lotus River, Ottery, Grassy Park Residents Association v South Peninsula Municipality
1999 (2) SA 817 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84û85
Louw v Golden Arrow Bus Services (Pty) Ltd (2000) 21 ILJ 188 (LC) . . . . . . . . . . . . 510
Louw v Matjila 1995 (11) BCLR 1476 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Louw v Minister of Safety and Security 2006 (2) SACR 178 (T) . . . . . . . . . . . . . . . . . 778
Lovelace v Canada (1985) 68 ILR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 627
Lufuno Mphaphuli & Associates (Pty) Ltd v Andrews 2009 (4) SA 529 (CC) . . . . . . 40, 711
Luitingh v Minister of Defence 1996 (2) SA 909 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . 103
M
M C Mehta v The Union of India AIR 1986 2 SCC 966 . . . . . . . . . . . . . . . . . . . . . . . . 268
xxv
M&G Media v 2010 FIFA World Cup Organising Committee 2011 (5) SA 163
(GSJ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 704, 705
Mabapa v S 2004 (1) BCLR 73 (T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 805
Mabaso v Law Society, Northern Provinces 2005 (2) SA 117 (CC) . . . . . . . . . . 188, 236, 237
Mabitsela v Department of Local Government [2012] 8 BLLR 790 (LC) . . . . . . . . . . 715
Madrassa Anjuman Islamia v Johannesburg Municipality 1917 AD 718 . . . . . . . . . . . 653
Mafongosi v Regional Magistrate, Mdantsane 2008 (1) SACR 366 (Ck) . . . . . . . . . . . 772
Magajane v Chairperson, North West Gambling Board 2006 (5) SA 250 (CC) . . . . . 194, 305
Magano v District Magistrate Johannesburg (1) 1994 (2) SACR 304 (W) . . . . . . . . . . 779
Magingxa v National Commissioner, South African Police Service 2003 (4) SA 101
(Tk) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 662
Magna Alloys and Research (SA) (Pty) Ltd v Ellis 1984 (4) SA 874 (A) . . . . . . . . . 469, 470
Mahambehlala v MEC for Welfare, Eastern Cape 2002 (1) SA 342 (SE) . . . . . . . . . . . 204
Mahlanyana v Cadbury (Pty) Ltd (2000) 21 ILJ 2274 (LC) . . . . . . . . . . . . . . . . . . . . . 499
Makama v Administrator, Transvaal 1992 (2) SA 278 (T) . . . . . . . . . . . . . . . . . . . . . . . 587
Makhanya v Vodacom Service Provider (Pty) Ltd 2010 (3) SA 79 (GNP) . . . . . . . . . . 705
Makhathini v Road Accident Fund 2002 (1) SA 511 (SCA) . . . . . . . . . . . . . . . . . . . . . 792
Makibinyane v Nuclear Energy Corporation of SA (2009) 30 ILJ 2731 (LC) . . . . . . . 501
Malachi v Cape Dance Academy International (Pty) Ltd 2010 (6) SA 1 (CC) . . . . . . 152, 191,
277, 280, 453
Maluleke and Lifestyle Amusement Centre v Minister of Justice 1995 (1) BCLR 104
(C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Maluleke v MEC, Health and Welfare, Northern Province 1999 (4) SA 367 (T) . . . . . 82
Manage v Donn Products (Pty) Ltd (1993) 14 ILJ 455 (IC) . . . . . . . . . . . . . . . . . . . . . 511
Mandel v Johncom Media Ltd [2008] ZAGPHC 36 . . . . . . . . . . . . . . . . . . . . . . . . . . . 350
Mangena v Fila SA (Pty) Ltd (2010) 31 ILJ 662 (LC) . . . . . . . . . . . . . . . . . . . . . . . . 498, 510
Mankayi v Anglogold Ashanti Ltd 2010 (5) SA 137 (SCA) . . . . . . . . . . . . . . . . . . . . . 727
Manong & Associates v City of Cape Town 2009 (1) SA 644 (EqC) . . . . . . . . . . . . . . 36
Marais v Democratic Alliance 2002 (2) BCLR 171 (C) . . . . . . . . . . . . . . . . . . . . . . . . 660
Marchioro v Chaney 442 US 191 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 405
Mare v Plettenberg Bay / Bitou Municipality [2008] ZAWCHC 61 . . . . . . . . . . . . . . . 729
Marsh v Alabama 326 US 501 (1946) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 394
Martino v Santa Clara Valley Water District 703 F 2d 1141 (9th Cir) . . . . . . . . . . . . . . 550
Masamba v Chairperson, Western Cape Regional Committee of the Immigrants
Selection Board 2001 (12) BCLR 1239 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Masetlha v President of the Republic of South Africa 2008 (1) SA 566 (CC) . . . . . . 665, 673,
682, 688, 689
Mashavha v President of the Republic of South Africa 2005 (2) SA 476 (CC) . . . . . . 445
Masiya v Director of Public Prosecutions, Pretoria 2007 (5) SA 30 (CC) . . . . 14, 45, 55, 156,
191, 613, 801
Master of the High Court v Deedat 1999 (11) BCLR 1285 (N) . . . . . . . . . . . . . . . . . . 238
Masuku and Mbonani v State President 1994 (4) SA 374 (T) . . . . . . . . . . . . . . . . . . . . 435
Matatiele Municipality v President of the Republic of South Africa 2006 (5) SA 47
(CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
Matatiele Municipality v President of the Republic of South Africa 2007 (6) SA 477
(CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135, 453
Mateis v Ngwathe Plaaslike Munisipaliteit 2003 (4) SA 361 (SCA) . . . . . . . . . . . . . . . 59
Matinkinca v Council of State, Republic of Ciskei 1994 (4) SA 472 (Ck) . . . . . . . . . . 160
Matukane v Laerskool Potgietersrus 1996 (3) SA 223 (T) . . . . . . . . . . . . . . . . . . . . . . 409
xxvi
Table of Cases
May v Reserve Bank of Zimbabwe 1986 (3) SA 107 (ZSC) . . . . . . . . . . . . . . . . . . . . . 552

Mazibuko v City of Johannesburg 2010 (4) SA 1 (CC). . . . . . . . . . . 8, 57, 123, 196, 571, 579,
583, 584, 592, 650, 665, 680, 688
Mbanga v MEC for Welfare, Eastern Cape 2002 (1) SA 359 (SE) . . . . . . . . . . . . . . . . 204
Mbobo v Randfontein Estate Gold Mining Co (1992) 13 ILJ 1485 (IC) . . . . . . . . . . . 484
Mbuyisa v Minister of Police, Transkei 1995 (2) SA 362 (Tk) . . . . . . . . . . . . . . . . . . . 722
McCarthy v Additional Magistrate, Johannesburg 2000 (2) SACR 542 (SCA) . . . . . . 799
McCarthy v Constantia Property Owners’ Association 1999 (4) SA 847 (C) . . . . . . . . 75
McDonald’s Corporation v Joburgers Drive-Inn Restaurant (Pty) Ltd 1997 (1) SA 1
(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 793
Mchunu v Executive Mayor, Ethekwini Muncipality 2013 (1) SA 555 (KZD) . . . . . . 206
McInnes v Technikon Natal (2000) 21 ILJ 1138 (LC) . . . . . . . . . . . . . . . . . . . . . . . . 502, 507
McIntyre v Pietersen 1998 (1) BCLR 18 (T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 801
McNally v M&G Media 1996 (6) BCLR 818 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 367
MEC for Agriculture, Conservation, Environment and Land Affairs v Sasol Oil (Pty)
Ltd 2006 (5) SA 483 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 664
MEC for Development Planning and Local Government, Gauteng v Democratic Party
1998 (4) SA 1157 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 69, 121, 125
MEC for Education, KwaZulu Natal v Pillay 2008 (1) SA 474 (CC) . . . . . . . . . 198, 215, 235,
245, 315, 316, 320, 321, 325, 599, 602, 626, 627, 631, 632, 633, 650
MEC for Health, KwaZulu-Natal v Premier, Kwa Zulu-Natal 2002 (5) SA 717 (CC) 124
MEC for Health, Mpumalanga v M–Net 2002 (6) SA 714 (T) . . . . . . . . . . . . . . . . . . . 296
MEC for Local Government, Western Cape v Paarl Poultry Enterprises CC 2002 (3) SA
1 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125, 184
MEC, Department of Agriculture, Conservation and Environment v HTF Developers
(Pty) Ltd 2008 (2) SA 319 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 524, 680
Media24 Ltd v Grobler 2005 (6) SA 328 (SCA), (2005) 26 ILJ 1007 (SCA) . . . . . . . . 501
Media24 Ltd v National Prosecuting Authority (Media Monitoring Africa as Amicus
Curiae): In re S v Mahlangu 2011 (2) SACR 321 GNP . . . . . . . . . . . . . . . . . . . . . 795
Media24 Ltd v SA Taxi Securitisation (Pty) Ltd 2011 (5) SA 329 (SCA) . . . . . . . . . . 36
Media Workers Association of SA v Die Morester & Noord-Transvaler (Edms) Bpk
(Pietersburg) (1990) 11 ILJ 703 (IC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 484
Medtronic, Inc v Lohr 518 US 470 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 389
Mendes v Kitching 1995 (2) SACR 634 (E) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 811
Merafong Demarcation Forum v President of the Republic of South Africa 2008 (5) SA
171 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Metcash Trading v Commissioner for the South African Revenue Service 2000 (2) SA
232 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86, 540û541
Metcash Trading Ltd v Commissioner, South African Revenue Service 2001 (1) SA
1109 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 544, 714, 719, 720, 721
Metlika Trading Ltd v Commissioner, South African Revenue Service 2005 (3) SA 1
(SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
Metromedia Inc v San Diego 453 US 490 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 394
Meyer v Nebraska 262 US 390 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 634
Mgcina v Regional Magistrate Lenasia 1997 (2) SACR 711 (W) . . . . . . . . . . . . . . . . . 770
Mhlekwa v Head of the Western Tembuland Regional Authority 2001 (1) SA 574 (Tk);
2000 (2) SACR 596 (TK); 2000 (9) BCLR 979 (Tk) . . . . . . . . . . . . . . . . . 445, 739, 769
Micro Finance Regulatory Council v AAA Investments (Pty) Ltd 2006 (1) SA 27
(SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
xxvii
Midi Television (Pty) Ltd t/a E–TV v Director of Public Prosecutions (Western Cape)
2007 (5) SA 540 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 344, 374
Mineworkers Investment Co (Pty) Ltd v Modibane 2002 (6) SA 512 (W) . . . . . . . . . . 382
Minister for Justice and Constitutional Development v Chonco 2010 (4) SA 82 (CC) 11
Minister for Justice and Constitutional Development v Nyathi 2010 (4) SA 567
(CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192, 195
Minister for Provincial and Local Government v Unrecognised Traditional Leaders of
the Limpopo Province 2005 (1) SA 110 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . 708
Minister of Correctional Services v Kwakwa 2002 (4) SA 455 (SCA) . . . . . . . . . . . . . 784
Minister of Defence v Dunn 2007 (6) SA 52 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . 662
Minister of Defence v Potsane 2002 (1) SA 1 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . 129, 142
Minister of Education v Harris 2001 (4) SA 1297 (CC) . . . . . . . . . . . . . . . . . . . . . . . . 85
Minister of Education v Syfrets Trust Ltd NO 2006 (4) SA 205 (C) . . . . . . . . . . . . . . . 554
Minister of Environmental Affairs and Tourism v Phambili Fisheries (Pty) Ltd [2003] 2
All SA 606 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 686
Minister of Finance v Van Heerden 2004 (6) SA 121 (CC) . . . . . . . . . . . . . . . . 214, 241, 411
Minister of Health v New Clicks South Africa (Pty) Ltd 2006 (2) SA 311 (CC) . . . . . 14, 143,
651, 658, 664, 666, 669, 670, 672, 680, 690, 713
Minister of Health v Treatment Action Campaign 2002 (5) SA 703 (CC) . . 610, 611, 612, 620
Minister of Health v Treatment Action Campaign (2) 2002 (5) SA 721 (CC) . . . 22, 147, 180,
185, 197, 566, 571, 573, 574, 577, 578, 579, 581, 583, 584, 591, 596, 597
Minister of Home Affairs (Bermuda) v Fisher [1980] AC 319 (PC) . . . . . . . . . . . . . . . 138
Minister of Home Affairs v Eisenberg and Associates 2003 (5) SA 281 (CC) . . . 83, 198, 658
Minister of Home Affairs v Fourie 2006 (1) SA 524 (CC) . . . . . . . . . . . . . . . . . . . . . 194, 231
Minister of Home Affairs v Liebenberg 2002 (1) SA 33 (CC) . . . . . . . . . . . . . . . . . . 117, 184
Minister of Home Affairs v National Institute for Crime Prevention and the
Re-integration of Offenders (NICRO) . . . . . . . . . . . . . . . 8, 130, 153, 199, 421, 436, 569
Minister of Home Affairs v Tsebe 2012 (5) SA 467 (CC) . . . . . . . . . . . . . . . . . . . . . . . 265
Minister of Home Affairs v Watchenuka 2004 (4) SA 326 (SCA) . . . . . . . . . . . . . . . 443, 456
Minister of Justice and Constitutional Development v Zealand 2007 (2) SACR 401
(SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 777, 778
Minister of Justice v Hofmeyr 1993 (3) SA 131 (A) . . . . . . . . . . . . . . . . . . . . . . . . . . 784, 786
Minister of Justice v Ntuli 1997 (3) SA 772 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193
Minister of Law and Order v Kader 1991 (1) SA 41 (A) . . . . . . . . . . . . . . . . . . . . . . . . 777
Minister of Public Works v Kyalami Ridge Environmental Association 2001 (3) SA
1151 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 125, 532, 584, 649
Minister of Safety and Security v Carmichele 2004 (3) SA 305 (SCA) . . . . . . . 263, 283, 556
Minister of Safety and Security v Gaqa 2002 (1) SACR 654 (C) . . . . . . . . . . . . . . . . . 775
Minister of Safety and Security v Hamilton 2001 (3) SA 50 (SCA) . . . . . . . . . 126, 263, 283
Minister of Safety and Security v Hamilton 2004 (2) SA 216 (SCA) . . . . . . . . . . . . . . 556
Minister of Safety and Security v Sekhoto 2010 (1) SACR 388 (FB) . . . . . . . . . . . . . . 777
Minister of Safety and Security v Sekhoto 2011 (1) SACR 315 (SCA) . . . . . . . . . . . . 777
Minister of Safety and Security v Van der Merwe 2011 (5) SA 61 (CC) . . . . . . . . . . 180, 305
Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) . . 263, 283, 556
Minister of Safety and Security v Xaba 2004 (1) SACR 149 (D) . . . . . . . . . . . . . . . 287, 775
Minister of the Interior v Harris 1952 (4) SA 769 (A) . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Minister of Transport v Du Toit 2005 (1) SA 16 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . 548
Minister of Transport v Mvumvu 2012 (12) BCLR 1340 (CC) . . . . . . . . . . . . . . . . . . . 195
xxviii
Table of Cases
Minister of Welfare and Population Development v Fitzpatrick 2000 (3) SA 422

(CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116, 194, 408, 446, 607, 620, 622
Miranda v Arizona 384 US 436 (1966) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 769
Mistretta v United States 488 US 361 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 735
Mistry v Interim National Medical and Dental Council of South Africa 1997 (7) BCLR
933 (D) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 306
Mistry v Interim National Medical and Dental Council of South Africa 1998 (4) SA
1127 (CC) . . . . . . . . . . . . . . . . . . . 121, 122, 167, 191, 193, 298, 300, 303, 304, 305, 306
Mitchell v Hodes 2003 (1) SACR 524 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 750
Mittal Steel South Africa Limited t/a Vereeniging Steel v Pipechem CC 2008 (1) SA
640 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 742
Mittalsteel SA Ltd v Hlatshwayo 2007 (1) SA 66 (SCA) . . . . . . . . . . . . . . . . . . . . . . . 44, 701
Mjeni v Minister of Health and Welfare, Eastern Cape 2000 (4) SA 446 (Tk) . . . . . . . 206
Mkangeli v Joubert 2001 (2) SA 1191 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
Mkhatshwa v Mkhatshwa 2002 (3) SA 441 (T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 654
Mkhize v Commission for Conciliation, Mediation and Arbitration 2001 (1) SA 338
(LC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Mkontwana v Nelson Mandela Metropolitan Municipality 2005 (1) SA 530 (CC) . . 130, 538
Modderfontein Squatters, Greater Benoni City Council v Modderklip Boerdery (Pty)
Ltd 2004 (6) SA 40 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 283, 554, 556
Modderklip Boerdery (Edms) Bpk v President of the RSA 2003 (6) BCLR 638
(T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203, 204, 205
Moetjie v The State 2009 (1) SACR 95 (T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 771
Mohamed NO v National Director of Public Prosecutions 2002 (4) SA 366 (W); 2002
(2) SACR 93 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 741, 747, 751
Mohamed v Jassiem 1996 (1) SA 673 (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 628
Mohamed v President of the Republic of South Africa 2001 (3) SA 893 (CC). . . . . . . . 35, 39,
40, 43, 263, 264, 265, 453, 568
Mohlomi v Minister of Defence 1997 (1) SA 124 (CC) . . . . . . . . . . . . 62, 167, 722, 725, 728
Moise v Greater Germiston Transitional Local Council 2001 (4) SA 491 (CC) . . . . . . 52, 116,
153, 154, 723
Moletsane v Premier of the Free State 1996 (2) SA 95 (O) . . . . . . . . . . . . . . . . . . . . . . 686
Morrow v State Bar of California (9th Cir 1999) 188 F 3d 1174 . . . . . . . . . . . . . . . . . 401
Moseneke v The Master 2001 (2) SA 18 (CC) . . . . . . . . . . . . . . 119, 130, 192, 193, 227, 241
Motala v University of Natal 1995 (3) BCLR 374 (D) . . . . . . . . . . . . . . . . . . . . . . . . 243, 505
Motan v Joosub 1930 AD 61 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 235
Motsepe v Commissioner for Inland Revenue 1997 (2) SA 898 (CC) . . . . . . . . . . . . . 87, 103
Mphahlele v First National Bank of SA Ltd 1999 (2) SA 667 (CC) . . . . . . . . . . 141, 731, 805
Mphela v Haakdoornbult Boerdery CC 2008 (4) SA 488 (CC) . . . . . . . . . . . . . . . . . . . 560
Mpongwana v Minister of Safety and Security 1999 (2) SA 794 (C) . . . . . . . . . . . . . . 383
Msila v Government of the RSA 1996 (3) BCLR 362 (C) . . . . . . . . . . . . . . . . . . . . . . 770
Msomi v Attorney-General of Natal 1996 (8) BCLR 1109 (W) . . . . . . . . . . . . . . . . . . 774
Mthatha v Mbenya (2007) 28 ILJ 2209 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 481
Mthembi-Mahanyele v Mail & Guardian Ltd 2004 (6) SA 329 (SCA) . . . 341, 367, 372, 373
Mthembu v Claude Neon Lights (1992) 13 ILJ 422 (IC) . . . . . . . . . . . . . . . . . . . . . . . 510
Mthembu v Letsela 2000 (3) SA 867 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Mthethwa v De Bruin NO 1998 (3) BCLR 336 (N) . . . . . . . . . . . . . . . . . . . . . . . . . . . 800
Mthetwa v Diedericks 1996 (4) SA 381 (N) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 728
MTN Service Provider (Pty) Ltd v Afro Call (Pty) Ltd 2007 (6) SA 620 (SCA) . . . . . 120
xxix
Munusamy v Hefer NO 2004 (5) SA 112 (O) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 346

Murray v Minister of Defence (2008) 29 ILJ 1369 (SCA) . . . . . . . . . . . . . . . . . . . . . . 481
Mutual Pools & Staff Pty Ltd v The Commonwealth of Australia (1994) 179 CLR 155 550
Mvu v Minister of Safety and Security 2009 (2) SACR 292 (GSJ) . . . . . . . . . . . . . . 776, 778
Mvumvu v Minister for Transport 2011 (2) SA 473 (CC) . . . . . . . . . . . . . . . . . 182, 217, 218
MWU obo Van Coller v Eskom [1999] 9 BLLR 1089 (IMSSA) . . . . . . . . . . . . . . . . . 506
Mynwerkersunie v O’Okiep Copper Co Ltd (1983) 4 ILJ 140 (IC) . . . . . . . . . . . . . . . 484
Mzamba Taxi Owners’ Association v Bizana Taxi Association 2006 (2) SA 154 (SCA) 657
N
Naidenov v Minister of Home Affairs 1995 (7) BCLR 891 (T) . . . . . . . . . . . . . . . . . . 800
Namunjepo v Commanding Officer, Windhoek Prison 2000 (6) BCLR 671 (NmS) . . . 87
Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593
(SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 1999 (3)
BCLR 280 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2)
SA 1 (CC) . . . . . . . . . . . . . . . . . . . . . 57, 59, 67, 77, 85, 86, 87, 181, 182, 185, 186, 187,
190, 192, 218, 229, 230, 418, 454
National Coalition for Gay and Lesbian Equality v Minister of Justice 1998 (6) BCLR
726 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158
National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6
(CC). . . . . . . . . . . . . . . . . . . . . . . 45, 54, 87, 116, 153, 172, 184, 185, 190, 191, 214, 215,
217, 218, 228, 251, 252, 295, 299, 301, 302, 397, 418, 747
National Credit Regulator v Nedbank Ltd 2009 (6) SA 295 (GNP) . . . . . . . . . . . . . . . 665
National Credit Regulator v Opperman 2013 (2) SA 1 (CC) . . . . . . . . . . . . . . . . 14, 188, 536
National Director of Public Prosecutions v Alexander 2001 (2) SACR 1 (T) . . . . . . . . 747
National Director of Public Prosecutions v Mohamed 2003 (2) SACR 258 (C) . . . . . . 751
National Director of Public Prosecutions v Mohamed NO 2003 (4) SA 1 (CC) . 180, 195, 741
National Director of Public Prosecutions v Moodley 2009 (2) SA 588 (SCA) . . . . . . . 752
National Director of Public Prosecutions v Phillips 2002 (1) BCLR 41 (W) . . . . . . . 751, 755
National Director of Public Prosecutions v Rebuzzi 2002 (1) SACR 128 (SCA) . . . . . 750
National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) . . . . . . . . . 712
National Education Health and Allied Workers Union v University of Cape Town 2003
(3) SA 1 (CC); (2003) 24 ILJ 95 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99, 378, 491
National Gambling Board v Premier, KwaZulu-Natal 2002 (2) SA 715 (CC) . . 104, 125, 184
National Manufactured Fibres Employers’ Association v Bikwani (1999) 20 ILJ 2637
(LC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 485
National Media Ltd v Bogoshi 1998 (4) SA 1196 (SCA) . . . 48, 367, 368, 369, 370, 371, 372,
373, 375, 382
National Party v Jamie NO 1994 (3) SA 483 (EWC) . . . . . . . . . . . . . . . . . . . . . . . . . . 425
National People’s Action v Village of Wilmette 914 F 2d 1008, 1012 (1990) . . . . . . . 392
National Police Service Union v Minister of Safety and Security 2000 (4) SA 1110
(CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
National Transport Commission v Chetty’s Motor Transport (Pty) Ltd 1972 (3) SA 726
(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 669
National Treasury v Opposition to Urban Tolling Alliance 2012 (6) SA 223 (CC). . . . 22, 110,
123, 132, 198, 567
xxx
Table of Cases
National Union of Metalworkers of SA v Bader Bop (Pty) Ltd 2003 (3) SA 513
(CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 378, 487, 491
National Union of Metalworkers of SA v Fry’s Metals (Pty) Ltd (2005) 26 ILJ 689
(SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 474, 730
National Union of Mineworkers v East Rand Gold & Uranium Co Ltd (1991) 12 ILJ
1221 (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 491
Ndlovu v Ngcobo 2003 (1) SA 113 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 554, 588
Neethling v Du Preez 1994 (1) SA 708 (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 366
Nel v Le Roux NO 1996 (3) SA 562 (CC) . . . . . . . . . . . . . . . . . 277, 345, 654, 747, 795, 801
Nephawe v Premier, Limpopo Province 2003 (5) SA 245 (T) . . . . . . . . . . . . . . . . . . . . 654
Netherburn Engineering CC t/a Netherburn Ceramics v Mudau 2004 (3) BCLR 317
(LC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 742
New National Party of South Africa v Government of the Republic of South Africa
1999 (3) SA 191 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 70, 74, 121, 179, 222, 421
New National Party of South Africa v Government of the Republic of South Africa
1999 (4) BCLR 457 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88, 430
New York City Commission on Human Rights v United African Movement, No.
MPA95–0851/PA95–0031 (NYCCHR June 30, 1997) . . . . . . . . . . . . . . . . . . . . . . 412
New York Times Co v United States 403 US 713 (1971) . . . . . . . . . . . . . . . . . . . . . . . 343
New York v Quarles 467 US 649 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 769
Ngewu v Post Office Retirement Fund 2013 (4) BCLR 421 (CC) . . . . . . . . . . . . . . . . 194
Ngqumba v Staatspresident 1988 (4) SA 224 (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 682
Ngwenyama v Mayelane 2012 (4) SA 527 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233
Ngxuza v Permanent Secretary, Department of Welfare, Eastern Cape 2001 (2) SA 609
(E) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75, 81, 82, 183, 204
Nhlabathi v Fick 2003 (7) BCLR 806 (LCC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 551
Nicor IT Consulting (Pty) Ltd v North West Housing Corporation [2009] ZANWHC
26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 724
Njongi v MEC, Department of Welfare, Eastern Cape 2008 (4) SA 237 (CC) . . . . . . . 205
Nkosi v Bührmann 2002 (1) SA 372 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 317, 554
Nkuzi Development Association v Government of the Republic of South Africa 2002
(2) SA 733 (LCC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 714
NM v Smith 2007 (5) SA 250 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 297
Nokotyana v Ekurhuleni Metropolitan Municipality 2010 (4) BCLR 312 (CC) . . . . 253, 583
North Central Local Council and South Central Local Council v Roundabout Outdoor
(Pty) Ltd 2002 (2) SA 625 (D) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 361, 362
Ntamo v Minister of Safety and Security 2001 (1) SA 830 (Tk) . . . . . . . . . . . . . . . . . . 260
Nxele v Chief Deputy Commissioner, Corporate Services, Department of Correctional
Services (2008) 29 ILJ 2708 (LAC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 478
Nyathi v MEC for the Department of Health, Gauteng 2008 (5) SA 94 (CC) . . . . 25, 57, 194,
206, 251, 715
O
Occupiers of 51 Olivia Road, Berea Township and 197 Main Street, Johannesburg v
City of Johannesburg 2008 (3) SA 208 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199, 589
Occupiers of Portion R25 of the Farm Mooiplaats 355 JR v Golden Thread Ltd and
Others 2012 (2) SA 337 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 590
Offit Enterprises (Pty) Ltd v Coega Development Corporation (Pty) Ltd 2011 (1) SA
293 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37, 538
xxxi
O’Keeffe v Argus Printing and Publishing Co Ltd 1954 (3) SA 244 (C) . . . . . . . . . . . 296
Old Mutual Life Assurance Co SA Ltd v Gumbi (2007) 28 ILJ 1499 (SCA) . . . . . . . . 480
Olitzki Property Holdings v State Tender Board 2001 (3) SA 1247 (SCA) . . . . . . . . . 203
Omar v Government RSA 2006 (1) SACR 359 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . 751
Ontario Human Rights Commission v Simpson Sears Ltd (1985) 2 SCR 536 . . . . . . . 498
Oostelike Gauteng Diensteraad v Transvaal Munisipale Pensioenfonds 1997 (8) BCLR
1066 (T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78, 410
Oosthuizen’s Transport (Pty) Ltd v MEC, Road Traffic Matters, Mpumalanga 2008 (2)
SA 570 (T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 665
Operation Dismantle Inc v The Queen (1985) 13 CRR 287 . . . . . . . . . . . . . . . . . . . . . 712
Oriani-Ambrosini v Sisulu, Speaker of the National Assembly 2012 (6) SA 588
(CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42, 185
Oskil Properties (Pty) Ltd v Chairman of the Rent Control Board 1985 (2) SA 234
(SE) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 683
Osman v Attorney-General Transvaal 1998 (4) SA 1224 (CC) . . . . . . . 55, 145, 755, 756, 759
Osman v United Kingdom 29 EHHR 245 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 263, 282
Oudekraal Estates (Pty) Ltd v City of Cape Town 2004 (6) SA 222 (SCA) . . . . . . . . 80, 179
P
Paixao v Road Accident Fund 2012 (6) SA 377 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . 233
Pakendorf v De Flamingh 1982 (3) SA 146 (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 366, 368
Parbhoo v Getz 1997 (4) SA 1095 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116, 193, 750
Park-Ross v Director: Office for Serious Economic Offences 1995 (2) SA 148 (C) . . 306, 540,
790
Paschim Banga Khet Mazdoor Samity v State of West Bengal (1996) AIR SC 2426 . . 593
Patel v Chief Immigration Officer, OR Tambo International Airport [2009] 4 All SA 278
(GNP) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 678
Patel v Minister of Home Affairs 2000 (2) SA 343 (D) . . . . . . . . . . . . . . . . . . . . . . . . . 605
Pennington v Minister of Justice 1995 (3) BCLR 270 (C) . . . . . . . . . . . . . . . . . . . . . 770, 794
Pepcor Retirement Fund v Financial Services Board 2003 (6) SA 38 (SCA) . . . . . . . . 668
Permanent Secretary, Department of Education and Welfare, Eastern Cape v
Ed-U–College (PE) (Section 21) Inc 2001 (2) SA 1 (CC) . . . . . . . . . . . . . . . . . . . 654
Permanent Secretary, Department of Welfare, Eastern Cape v Ngxuza 2001 (4) SA 1184
(SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75, 81, 83, 204
Petersen v Maintenance Officer 2004 (2) BCLR 205 (C) . . . . . . . . . . . . . . . . . . . . . . . 236
PFE International v International Development Corporation of South Africa Ltd 2013
(1) SA 7 (CC) [4] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 528
Pharmaceutical Manufacturers Association of SA: In re Ex parte President of the
Republic of South Africa 2000 (2) SA 674 (CC) . . . . . . . . . . . . . . . 11, 34, 43, 46, 66, 98,
100, 115, 116, 119, 222, 463, 647, 648, 652, 653, 671, 689, 778
Phenithi v Minister of Education 2008 (1) SA 420 (SCA) . . . . . . . . . . . . . . . . . . . . . . 657
Phillips v Director of Public Prosecutions (Witwatersrand Local Division) 2003 (3) SA
345 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116, 154, 171, 184, 340, 341, 351, 747
Phillips v National Director of Public Prosecutions 2001 (4) SA 849 (W) . . . . . . . . . . 742
Phoebus Apollo Aviation CC v Minister of Safety and Security 2003 (2) SA 34
(CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101, 554
Phumelela Gaming and Leisure Ltd v Gründlingh 2007 (6) SA 350 (CC) . . . . . . . . . . 57, 459
Pierce v Society of Sisters 268 US 510 (1925) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 409
Pilane v Pilane 2013 (4) BCLR 431 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198
xxxii
Table of Cases
Pillay v S 2004 (2) BCLR 158 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 806

Pittsburgh Press v Human Relations Commission 413 US 376 (1973) . . . . . . . . . . . . . 361
Platform Ärtzte für das Leben v Austria 13 EHRR 204 (1988) . . . . . . . . . . . . . . . . . . . 282
Podlas v Cohen and Bryden NNO 1994 (4) SA 662 (T) . . . . . . . . . . . . . . . . . . . . . . . . 664
Pointe Gourde Quarrying & Transport Co Ltd v Sub-intendent of Crown Lands
(Trinidad) [1947] AC 565 (PC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 552
Police Department of Chicago v Mosley (1972) 408 US 92 . . . . . . . . . . . . . . . . . . . . . 338
Port Elizabeth Municipality v Prut NO 1996 (4) SA 318 (E) . . . . . . . . . . . . . . . . . . . . . 74, 79
Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC) . . . . . . . . . . 199, 532,
586, 590
Potgieter v Kilian 1996 (2) SA 276 (N) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 367
Potgieter v Lid van die Uitvoerende Raad: Gesondheid, Provinsiale Regering Gauteng
2001 (11) BCLR 1175 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 723
Poverty Alleviation Network v President of the Republic of South Africa 2010 (6)
BCLR 520 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Premier of Mpumalanga v Executive Committee of the Association of Governing
Bodies of State-Aided Schools: Eastern Transvaal 1999 (2) SA 91 (CC) . . . . . . . 161
Premier, Eastern Cape v Cekeshe 1999 (3) SA 56 (Tk) . . . . . . . . . . . . . . . . . . . . . . . . . 554
Premier, Mpumalanga v Executive Committee, Association of State-Aided Schools,
Eastern Transvaal 1999 (2) SA 91 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 662
Premier, Western Cape v Fair Cape Property Developers (Pty) Ltd 2003 (6) SA 13
(SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203
Premier, Western Cape v President of the Republic of South Africa 1999 (3) SA 657
(CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
President of the Ordinary Court Martial NO v Freedom of Expression Institute 1999 (4)
SA 682 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88, 117, 190
President of the Republic of South Africa v Hugo 1997 (4) SA 1 (CC) . . . . . . . 156, 157, 196,
214, 252, 606, 712
President of the Republic of South Africa v M&G Media 2012 (2) SA 50 (CC) . . . . 692, 695,
708, 709
President of the Republic of South Africa v Modderklip Boerdery (Pty) Ltd 2004 (6) SA
40 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204
President of the Republic of South Africa v Modderklip Boerdery (Pty) Ltd 2005 (5) SA
3 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204, 716
President of the Republic of South Africa v Quagliani 2009 (2) SA 466 (CC) . . . . . . . 15
President of the Republic of South Africa v South African Rugby Football Union 1999
(2) SA 14 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
(4) SA 147 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103, 712, 733, 734, 797
(1) SA 1 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 39, 654, 659, 665, 668, 688
President of the Republic of South Africa v United Democratic Movement 2003 (1) SA
472 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 21, 103, 110, 198
Pretoria City Council v Walker 1998 (2) SA 363 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . 197
Price Waterhouse Coopers Inc v National Potato Co-operative Ltd 2004 (9) BCLR 930
(SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 715
Prince v President of the Law Society, Cape of Good Hope 1998 (8) BCLR 976 (C) 324
Prince v President, Cape Law Society 2000 (3) SA 845 (SCA) . . . . . . . . . . . . . . . . . . 324
Prince v President, Cape Law Society 2001 (2) SA 388 (CC) . 51, 52, 53, 167, 168, 171, 190
xxxiii
Prince v President, Cape Law Society 2002 (2) SA 794 (CC). . . . . . . 317, 320, 323, 324, 399,
415, 416, 633, 712, 747
Prinsloo v Nasionale Vervolgingsgesag 2011 (1) SACR 196 (GNP) . . . . . . . . . . . . . 777, 779
Prinsloo v RCP Media Ltd t/a Rapport 2003 (4) SA 456 (T) . . . . . . . . . . . . . . . . . . . . . 743
Prinsloo v Van der Linde 1997 (3) SA 1012 (CC) . . . . . . . . . . . . . . . . . 79, 217, 219, 223, 252,
373, 542, 670, 750, 755
Print Media South Africa v Minister of Home Affairs 2012 (6) SA 443 (CC) . . . . . . 222, 342,
363, 344, 355, 365, 374
Prior v Battle 1999 (2) SA 850 (Tk) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74, 79, 84, 104, 534
Prokureur-Generaal van die Witwatersrandse Afdeling v Van Heerden 1994 (2) SACR
467 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 779
Prokureur-Generaal, Vrystaat v Ramokhosi 1997 (1) SACR 127 (O) . . . . . . . . . . . . 777, 779
Prosecutor v Brdjanin and Tali (2003) 42 ILM 130 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 346
Protea Technology Ltd v Wainer 1997 (9) BCLR 1225 (W) . . . . . . . . . . . . . . . . . . . . . 311
Public Servants’ Association of SA v Minister of Justice 1997 (3) SA 925 (T), (1997) 18
ILJ 241 (T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242, 503, 506, 507
Public Service Association of SA on behalf of Helberg v Minister of Safety & Security
(2004) 25 ILJ 2373 (LC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 506
Qokose v Chairman, Ciskei Council of State 1994 (2) SA 198 (Ck) . . . . . . . . . . . . . . 722
Qozeleni v Minister of Law and Order 1994 (3) SA 625 (E) . . . . . . . . . . . . . . . . . . . . 705
R
R v Andrews (1988) 65 OR (2d) 161 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 357
R v B 1933 OPD 139 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 774
R v Barlin 1926 AD 459 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 772
R v Big M Drug Mart [1985] 1 SCR 295 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137, 316
R v Camane 1925 AD 570 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 774
R v Cambridge Health Authority, ex parte B [1995] 2 All ER 129 (CA) . . . . . . . . . . . 22
R v Collins 1987 (28) CCR 122 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 809
R v Daleski 1933 TPD 47 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 483
R v Duetsimi 1950 (3) SA 674 (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 773
R v Duguay [1985] 1 SCR 93 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 274
R v Edwards Books and Art [1986] 2 SCR 713 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 327
R v Esposito (1985) 49 CR (3d) 193 (Ont.CA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 758
R v Esposito (1985) 53 OR (2d) 356 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 750
R v Généreux (1992) 88 DLR (4th) 110 (SCC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 733
R v Goodwin [1993] 2 NZLR 153 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 749
R v H 2005 (6) SA 535 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 618
R v Holiday 1927 CPD 395 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 297
R v Hufsky (1988) 32 CRR 103 (SC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 452
R v Hufsky [1988] 1 SCR 621 632 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 274
R v Ismail 1952 (1) SA 204 (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 765
R v Keegstra [1990] 3 SCR 697 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 356, 358
R v Kritzinger 1952 (2) SA 402 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 767
R v Kuzwayo 1949 (3) SA 761 (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 749
R v Maleke 1925 TPD 491 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 774
R v Mashele 1944 AD 571 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 760
R v Mochebelele 2010 (1) SACR 256 (LesA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 772
R v Morgentaler (No 2) (1988) 44 DLR (4th) 384 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 286
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Table of Cases
R v Morin (1992) 8 CLR (2d) 193 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 798

R v Noble (1997) 1 SCR 874, 6 CR (5th) 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 765
R v Rahn [1985] 1 SCR 659 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 749
R v Special Adjudicator: ex parte Ullah [2004] UKHL 26 . . . . . . . . . . . . . . . . . . . . . . 453
R v Steyn 1954 (1) SA 324 (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 788
R v Stillman [1997] 1 SCR 607 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 774
R v Stillman 1997 (42) CRR (2d) 189 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 775
R v Therens [1985] 1 SCR 613 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 749
R v Thomsen [1988] 1 SCR 640 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 749
R v Trask [1985] 1 SCR 655 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 749
R v Wholesale Travel Inc 1992 8 CR (4th) 145 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 758
R v Xulu 1956 (2) SA 288 (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 773
Radio Pretoria v Chairman, Independent Communications Authority of SA 2003 (4)
BCLR 421 (T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 636
Rail Commuters Action Group v Transnet Ltd t/a Metrorail (No 1) 2003 (5) SA 518
(C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197
Rail Commuters Action Group v Transnet Ltd t/a Metrorail (No 2) 2003 (5) SA 593
(C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Rail Commuters Action Group v Transnet Ltd t/a Metrorail 2005 (2) SA 359 (CC) . 101, 180,
181, 195, 196, 197, 282, 556
Railway Express Agency v New York 336 US 106 (1949) . . . . . . . . . . . . . . . . . . . . . . 156
Ralekwa v Minister of Safety and Security 2004 (1) SACR 131 (T) . . . . . . . . . . . . . . 778
Raloso v Wilson 1998 (1) BCLR 26 (NC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84, 88
Ramakatsa v Magashule 2013 (2) BCLR 202 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Ramphal v Minister of Safety and Security 2009 (1) SACR 211 (E) . . . . . . . . . . . . . . 778
Re Children’s Aid Society of Winnipeg & AM & LC Re RAM, 7 CRR . . . . . . . . . . . 618
Rectron (Pty) Ltd v Kara Smit Rekenaardienste CC [2005] ZAGPHC 48 . . . . . . . . . . 742
Reddy v Siemens Telecommunications (Pty) Ltd 2007 (2) SA 486 (SCA) . . . . . . . . . . 470
Reflect-All 1025 CC v MEC for Public Transport, Roads and Works, Gauteng
Provincial Government 2009 (6) SA 391 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 532
Registrar of Banks v Regal Treasury Private Bank Ltd 2004 (3) SA 560 (W) . . . . . . . 664
Reid-Daly v Hickman 1981 (2) SA 315 (ZA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 296
Reitzer Pharmaceuticals (Pty) Ltd v Registrar of Medicines 1998 (4) SA 660 (T) . . . . 109
Residents of Joe Slovo Community, Western Cape v Thubelisha Homes 2010 (3) SA
454 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199, 564, 585, 586, 597, 666
Retrofit v Posts and Telecommunications Corporation (Attorney-General Intervening)
1996 (1) SA 847 (ZS) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Reynhardt v University of South Africa (2008) 29 ILJ 725 (LC) . . . . . . . . . . . . . . . . . 507
Rhode Island v Innis 446 US 291 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 769
Richter v Minister of Home Affairs 2009 (3) SA 615 (CC) . . 59, 86, 131, 154, 166, 421, 432
Ritchie v Government of the Northern Cape Province 2003 (2) SA 584 (NC) . . . . . . . 663
Rivett-Carnac v Wiggins 1997 (3) SA 80 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Road Accident Fund v Mdeyide 2008 (1) SA 535 (CC) . . . . . . . . . . . . . . . . . . . . . . . . 86
Road Accident Fund v Mdeyide 2011 (2) SA 26 (CC) . . . . . . . . . . . . . . . . . . . . 214, 564, 711
Roberts v United States Jaycees 468 US 609 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . 397, 634
Robinson v Volks NO 2004 (6) SA 288 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 232
Roe v Wade 410 US 113 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 266
Romero v Gauteng Newspapers Ltd 2002 (2) SA 431 (W) . . . . . . . . . . . . . . . . . . . . . . 375
Ross v South Peninsula Municipality 2000 (1) SA 589 (C) . . . . . . . . . . . . . . . . . . . . . . 587
xxxv
Rostker v Goldberg 453 US 57 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211

Rudolph v Commissioner for Inland Revenue 1994 (3) SA 771 (W) . . . . . . . . . . . . . . 109
Rudolph v Commissioner of Inland Revenue 1996 (4) SA 552 (CC) . . . . . . . . . . . . . . 54
Ryland v Edros 1997 (2) SA 690 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 335
S
S v A 1971 (2) SA 293 (T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 296, 297
S v A 1995 (2) BCLR 153 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
S v Acheson 1991 (2) SA 805 (NmHC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
S v Acting Regional Magistrate, Boksburg 2011 (2) SACR 274 (CC) . . . . . . . . . . . . . 60
S v Agliotti 2011 (2) SACR 437 (GSJ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 767, 797
S v Agnew 1996 (2) SACR 535 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 749, 772, 773
S v Aimes 1998 (1) SACR 343 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 794
S v Ambros 2005 (2) SACR 211 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 770, 771
S v B 2006 (1) SACR 311 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 615
S v Balatseng 2005 (2) SACR 28 (B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 771
S v Baloyi 2000 (2) SA 425 (CC); 2000 (1) SACR 81 (CC) . . . . . . . . . . . . . . . . . . . 281, 756
S v Basson 2004 (1) SA 246 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
S v Basson 2005 (1) SA 171 (CC); 2004 (1) SACR 285 (CC) . . . . . . . . 53, 98, 783, 797, 801
S v Bequinot 1997 (2) SA 887 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57, 69
S v Bhulwana; S v Gwadiso 1995 (2) SACR 748 (CC); 1996 (1) SA 388 (CC). . . . . . 59, 163,
167, 189, 190, 191, 193, 194, 755, 756
S v Bierman 2002 (5) SA 243 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122, 123, 124
S v Binta 1993 (3) SACR 553 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 774
S v Blaauw [2001] 3 All SA 588 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 615
S v Boesak 2000 (3) SA 381 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
S v Boesak 2001 (1) SA 912 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . 98, 123, 127, 275, 755, 766
S v Boshoff 1981 (1) SA 393 (T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 296
S v Botha 1995 (2) SACR 605 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 781, 782
S v Brown 1996 (2) SACR 49 (NC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 765
S v Brown 2009 (1) SACR 218 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 778
S v Campbell 1991 (1) SACR 435 (Nm) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 767
S v Chauke 1998 (1) SACR 354 (V) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 787
S v Chinamasa 2001 (1) SACR 278 (ZS) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 756, 796
S v Chowe 2010 (1) SACR 141 (G) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 787
S v Coetzee 1997 (3) SA 527 (CC); 1997 (3) SACR 527 (CC). . . . . . . . . . . . . . 187, 271, 275,
279, 755, 756, 758
S v Colliers 1995 (8) BCLR 975 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 798
S v Cornelissen 1994 (2) SACR 41 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 345
S v Cornelius 2008 (1) SACR 96 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 771
S v Damons 1997 (2) SACR 218 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 759
S v Damoyi 2004 (1) SACR 126 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 800
S v Daniels 1983 (3) SA 275 (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 760
S v Dhlamini 1997 (1) SACR 54 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 779
S v Dlamini 1973 (1) SA 144 (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 749
S v Dlamini 1999 (4) SA 623 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . 69, 70, 87, 116, 129, 146
S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat 1999 (2) SACR 51
(CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 751
S v Dodo 2001 (1) SACR 301 (E) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 793
xxxvi
Table of Cases
S v Dodo 2001 (3) SA 382 (CC); 2001 (1) SACR 594 (CC). . . . . . . . . . . . . . 19, 20, 251, 254,
255, 284, 285, 796
S v Dos Santos 2010 (2) SACR 382 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 807
S v Dougherty 2003 (2) SACR 36 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 261
S v Du Toit 2005 (2) SACR 411 (T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 770, 771
S v Dube 2000 (2) SA 583 (N); 2000 (1) SACR 53 (N) . . . . . . . . . . . . . . . . . . . 313, 806, 811
S v Dyani 2004 (2) SACR 365 (E) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 771, 794
S v Dzukuda 2000 (4) SA 1078 (CC); 2000 (2) SACR 443 (CC) . . . . . . . 116, 755, 799, 807
S v Evans 1981 (4) SA 52 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 760
S v Fhetani 2007 (2) SACR 590 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 777
S v Fielies 2004 (4) BCLR 385 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 787
S v Fielies 2006 (1) SACR 302 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 771
S v FM [2012] 4 All SA 351 (GNP) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 617
S v Fransman 2000 (1) SACR 99 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 758
S v Friedland 1996 (8) BCLR 1049 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
S v Gasa 1998 (1) SACR 446 (D) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39, 769
S v Gedezi 2010 (2) SACR 363 (WCC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 771
S v Geiges 2007 (2) SACR 507 (T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 795
S v Gumede 1998 (5) BCLR 530 (D) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 770
S v Gwala 1989 (4) SA 937 (N) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 794
S v Halgryn 2002 (2) SACR 211 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 772
S v Hammer 1994 (2) SACR 496 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 805
S v Hartmann 1975 (3) SA 532 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267
S v Hassen 1997 (3) BCLR 377 (T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 811
S v Hayes 1998 (1) SACR 625 (O) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 811
S v Hena 2006 (2) SACR 33 (E) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 766, 806, 810
S v Hill 1981 (2) PH H152 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 760
S v Hlalikaya 1997 (1) SACR 613 (E) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 776
S v Hlangabezo 2008 (1) SACR 218 (E) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 771
S v Hlongwa 1979 (4) SA 112 (D) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 779
S v Hlongwa 2002 (3) SACR 37 (T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 765
S v Hoho 1999 (2) SACR 159 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 783
S v Hudson 1980 (4) SA 145 (N) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 779
S v Huma (2) 1995 (2) SACR 411 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 774
S v Huma 1996 (1) SA 232 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254
S v I 1976 (1) SA 781 (RA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 296
S v Ismail 2006 (1) SACR 593 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 791
S v J 2011 (3) SA 1226 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 606
S v Jackson 2008 (2) SACR 272 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 800
S v Jacobs 2011 (1) SACR 505 (ECG) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 771
S v Jaipal 2005 (4) SA 581 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 568, 715
S v January 1994 (2) SACR 801 (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 773
S v Jeniker (2) 1993 (2) SACR 464 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 795
S v Joors 2004 (2) BCLR 217 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 804
S v Jordan 2002 (6) SA 642 (CC); 2002 (2) SACR 499 (CC). . . . . . . . . . 52, 53, 55, 153, 218,
239, 252, 301, 302, 399, 406, 418, 419, 461, 465, 747
S v Joseph 2007 (1) SACR 496 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 798, 799
S v Josephs 2001 (1) SACR 559 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 780
S v Juries 2003 (2) SACR 52 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 788
xxxvii
S v K 1997 (9) BCLR 1283 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218

S v Kellerman 1996 (1) SACR 89 (T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 802
S v Khan 2010 (2) SACR 476 (KZP) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 749
S v Khanyile 1988 (3) SA 795 (N) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 770
S v Kidson 1999 (1) SACR 338 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 313, 806, 811
S v Klaas 2011 (1) SACR 630 (ECG) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 797
S v Kok 2005 (2) SACR 240 (NC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 772
S v Kwalase 2000 (2) SACR 135 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 615
S v Langa 1998 (1) SACR 21 (T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 749
S v Lavhengwa 1996 (2) SACR 453 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 766, 787, 788
S v Lawrence 1997 (4) SA 1176 (CC) . . . . . . . . . . . . . . . . . 145, 146, 316, 317, 326, 327, 328,
329, 330, 331, 332, 376, 410, 459, 460, 461, 465, 468, 557, 747
S v Le Grange 2009 (1) SACR 125 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 798, 802
S v Legote 2001 (2) SACR 179 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 767
S v Lekhetho 2002 (2) SACR 13 (O) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 771
S v Letsoko 1964 (4) SA 768 (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 765
S v Libazi 2010 (2) SACR 233 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 793
S v Likuwa 1999 (5) BCLR 599 (Nm) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 286
S v Lottering 1999 (12) BCLR 1478 (N) . . . . . . . . . . . . . . . . . . 769, 773, 806, 807, 808, 810
S v Lubaxa 2001 (2) SACR 703 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 767
S v Lusu 2005 (2) SACR 538 (E) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 771
S v Lwane 1966 (2) SA 433 (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 749
S v M 2002 (2) SACR 411 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 806, 807, 808
S v M 2004 (1) SACR 238 (N) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 790
S v M 2006 (1) SACR 67 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 613
S v M 2007 (2) SACR 60 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 613
S v M 2008 (3) SA 232 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601
S v Maake 2001 (2) SACR 288 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 811
S v Maasdorp 2008 (2) SACR 296 (NC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 765
S v Mabaso 1990 (3) SA 185 (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 760
S v Mabaza 1994 (5) BCLR 42 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 779
S v Mabuza 2009 (2) SACR 435 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 771
S v Madiba 1998 (1) BCLR 38 (D) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 807, 810
S v Makhandela 2007 (2) SACR 620 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 771
S v Makiti [1997] 1 All SA 291 (B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 790
S v Makofane 1998 (1) SACR 603 (T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 767
S v Makwanyane 1995 (3) SA 391 (CC) . . . . . . . . . . 9, 11, 136, 137, 138, 139, 140, 142, 143,
144, 146, 147, 153, 155, 157, 163, 164, 165, 166, 168, 169, 170, 250, 252, 253, 254,
255, 258, 259, 260, 261, 262, 263, 265, 267, 268, 275, 283, 284, 339, 340, 631, 717, 747
S v Malefo 1998 (1) SACR 321 (T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 770
S v Malgas 2001 (2) SA 1222 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 285
S v Mamabolo (E TV and Others intervening) 2001 (3) SA 409 (CC); 2001 (1) SACR
686 (CC) . . . . . . . . . . . . . . . . . . . . 156, 338, 340, 359, 375, 378, 382, 383, 756, 795, 796
S v Manale 2000 (2) SACR 666 (NCD) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 771
S v Manamela 2000 (3) SA 1 (CC); 2000 (1) SACR 414 (CC). . . . . . . . . . . 89, 116, 152, 164,
167, 168, 189, 323, 754, 755, 759
S v Manguanyama 1996 (2) SACR 283 (E) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 772
S v Mank 1999 (2) SACR 497 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 781
S v Mansoor 2002 (1) SACR 629 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 806
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Table of Cases
S v Manuel 2001 (4) SA 11351 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 771

S v Manyonyo 1999 (12) BCLR 1438 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
S v Manzini 2007 (2) SACR 107 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 787, 794, 800
S v Maphumulo 1996 (2) SACR 84 (N) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 774
S v Maputle 2003 (2) SACR 15 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 812
S v Maredi 2000 (1) SACR 611 (T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 799
S v Mark 2001 (1) SACR 572 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 805, 810
S v Marx 1996 (2) SACR 140 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 769, 770
S v Maseko 1996 (2) SACR 91 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 759
S v Masondo: In re S v Mthembu 2011 (2) SACR 286 (GSJ) . . . . . . . . . . . . . . . . . . . . 767
S v Mathebula 1997 (1) SACR 10 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 749, 767, 770, 776
S v Mathole 2002 (2) SA 484 (T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 771
S v Matisonn 1981 (3) SA 302 (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 345
S v Matladi 2002 (2) SACR 447 (T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 771
S v Matlou 2010 (2) SACR 342 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 773
S v Matsubu 2009 (1) SACR 513 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 811
S v Mavinini 2009 (1) SACR 523 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 766
S v May 2005 (2) SACR 331 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 771, 772
S v Mayekiso 1996 (2) SACR 298 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 805, 811
S v Mbambo 1999 (2) SACR 421 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 771
S v Mbatha 1996 (2) SA 464 (CC); 1996 (1) SACR 371 (CC) . . . . . 163, 167, 194, 756, 758
S v Mbele 1996 (1) SACR 212 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 777, 779
S v Mbhense 2009 (1) SACR 640 (N) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 771
S v Mbuyane; S v Nkitle 1999 (1) SACR 458 (T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 801
S v Mcasa 2005 (1) SACR 388 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 759
S v McKenna 1998 (1) SACR 106 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 759, 769
S v Mdali 2009 (1) SACR 259 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 771
S v Meaker 1998 (8) BCLR 1038 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154, 168
S v Meer 1981 (4) SA 604 (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 380
S v Melani 1995 (2) SACR 141 (E) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 805
S v Melani 1996 (1) SACR 335 (E) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 769, 800, 805
S v Mello 1998 (3) SA 712 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190
S v Mello 1999 (2) SACR 255 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 756
S v Mercer 2004 (2) SA 598 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
S v Mfene 1998 (9) BCLR 115 (N) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 770
S v Mgcina 2007 (1) SACR 82 (T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 755, 773
S v Mgudu 2008 (1) SASCR 71 (N) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 791
S v Mhlakaza 1996 (2) SACR 187 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 776, 811
S v Mhlungu 1995 (3) SA 391 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57, 68, 125, 136, 138
S v Mkhize 1999 (2) SACR 632 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 808, 810
S v Mkhize 2011 (1) SACR 554 (KZD) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 779
S v Mkloena 1998 (2) SACR 642 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 776
S v Mohammed 1999 (2) SACR 507 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 781
S v Mokoena 2006 (1) SACR 29 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 766
S v Mokoena 2008 (5) SA 578 (T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
S v Mokoena, S v Phaswane 2008 (2) SACR 216 (T) . . . . . . . . . . . . . . . . . . . . . . . . . . 794
S v Monyane 2001 (1) SACR 115 (T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 776, 771
S v Monyane 2008 (1) SACR 543 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 766
S v Moos 1998 (1) SACR 372 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 770
xxxix
S v Motloutsi 1996 (1) SACR 78 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 805, 810

S v Motsasi 1998 (2) SACR 35 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 799
S v Motsasi 2000 (1) SACR 574 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 799
S v Mpetha (2) 1983 (1) SA 576 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 749, 750
S v Mphala 1988 (1) SACR 388 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 773, 808, 809, 810
S v Mphala 1998 (1) SACR 654 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 776
S v Mseleku 2006 (2) SACR 574 (D) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 766, 771
S v Mshumpa 2008 (1) SACR 126 (E) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 603, 801
S v Msimango 2010 (1) SACR 544 (GSJ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 794
S v Msithing 2006 (1) SACR 266 (N) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 791
S v Mthembu 2008 (2) SACR 407 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 806
S v Mthethwa 2004 (1) SACR 449 (E) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 749, 807
S v Mthetwa 1972 (3) SA 766 (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 765
S v Mtolo 2009 (1) SACR 443 (O) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 791
S v Mungoni 1997 (8) BCLR 1083 (V) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 794
S v N 2000 (1) SACR 209 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 615
S v N 2008 (2) SACR 135 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 615
S v Naidoo 1998 (1) BCLR 46 (D) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44, 313
S v Naidoo 1998 (1) SACR 479 (N) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 807, 810
S v Ndhlovu 1997 (12) BCLR 1785 (N) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 749
S v Ndhlovu 2002 (2) SACR 325 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 792
S v Ndlovu 1993 (2) SACR 69 (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 792
S v Ndlovu 2001 (1) SACR 204 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 771
S v Ndlovu, S v Sibisi 2005 (2) SACR 645 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 770, 771
S v Ndou 2006 (2) SACR 497 (T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 771
S v Nduku 2000 (2) SACR 382 (TkHC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 756
S v Nell 2009 (2) SACR 37 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 807
S v Nelushi 2006 (1) SACR 462 (V) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 759, 806
S v Ngcobo 1998 (10) BCLR 1248 (N) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 770, 807, 809, 811
S v Ngubane 1996 (2) SCR 218 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 800
S v Ngwani 1990 (1) SACR 449 (N) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 792
S v Ngwenya 1998 (2) SACR 503 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 749, 776
S v Niemand 2002 (1) SA 21 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154, 285
S v Njaday 1994 (5) BCLR 90 (E) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 779
S v Njikuza 2002 (2) SACR 481 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 771
S v Nkabinde 1998 (8) BCLR 996 (N) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 313, 788
S v Nkondo 2000 (1) SACR 358 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 771
S v Nkosi 2002 (1) SA 494 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 615
S v Nkosi 2011 (2) SACR 482 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 768
S v Nnasolu 2010 (1) SACR 561 (KZP) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 791, 806
S v Nombewu 1996 (2) SACR 396 (E) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 770
S v Nomzaza 1996 (2) SACR 14 (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 782
S v Ntesang 1995 (4) BCLR 426 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259
S v Ntsele 1997 (2) SACR 740 (CC); 1998 (11) BCLR 1543 (CC) . . . . . . . . . . 190, 191, 197,
756, 758
S v Ntshwence 2004 (1) SACR 506 (Tkd) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 787, 796
S v Ntuli 1993 (2) SACR 599 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 812
S v Ntuli 1996 (1) SA 1207 (CC); 1996 (1) SACR 94 (CC) . . . . . . . . . . . 167, 220, 747, 803
S v Ntzweli 2001 (2) SACR 361 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 811
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Table of Cases
S v Nzima 2001 (2) SACR 345 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 771, 783

S v Orrie 2005 (1) SACR 63 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 749
S v Owies 2009 (2) SACR 107 (CPD) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 771
S v Pennington 1997 (4) SA 1076 (CC) . . . . . . . . 53, 107, 108, 120, 121, 122, 712, 795, 800
S v Pennington 1999 (2) SACR 329 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 802
S v Petersen 2008 (2) SACR 355 (CPD) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 777
S v Phakati 2005 (2) SACR 361 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 803
S v Pienaar 2000 (2) SACR 143 (NC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38, 253, 800
S v Pillay 2004 (2) SACR 419 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 810, 811
S v Pitso 2002 (2) SACR 586 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 771
S v Price 2001 (11) BCLR 1193 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
S v Qhinga 2011 (2) SACR 378 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 805
S v R 2000 (1) SACR 33 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 808
S v Radebe 1968 (4) SA 410 (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 773
S v Radebe, S v Mbonani 1998 (1) SACR 191 (T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 771
S v Ramavhale 1996 (1) SACR 639 (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 792
S v Ramgobin 1985 (4) SA 130 (N) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 779
S v Reeding 2005 (2) SACR 631 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 811
S v Rens 1996 (1) SA 1218 (CC); 1996 (2) SACR 105 (CC) . . . . . . . . . . . 173, 221, 747, 802
S v Roberts 1999 (2) SACR 243 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 797
S v Roman 1994 (1) SACR 436 (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 790
S v Rudman; S v Mthwana 1992 (1) SA 343 (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 770
S v S 2001 (1) SACR 79 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 615
S v Saidi 2007 (2) SACR 637 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 794, 800
S v Saule 2009 (1) SACR 196 (CkHC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 771
S v Scholtz 1996 (2) SACR 40 (NC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 765
S v Seabi 2003 (1) SACR 620 (T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 759
S v Sebejan 1997 (1) SACR 626 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 748
S v Sejaphale 2000 (1) SACR 603 (T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 783
S v Senyolo 2010 (2) SACR 571 (GSJ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 801
S v Seseane 2000 (2) SACR 225 (O) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 808
S v Shaba 1998 (1) SACR 16 (T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 770
S v Shackell 2001 (4) SA 1 (SCA); 2001 (2) SACR 185 (SCA) . . . . . . . . . . . . . . . . 735; 797
S v Sheehama 1991 (2) SA 860 (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 773, 774
S v Shiburi 2004 (2) SACR 314 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 771, 790
S v Shongwe 1998 (2) SACR 321 (T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 770
S v Shuping 1983 (2) SA 119 (BSC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 767
S v Sikhipha 2006 (2) SACR 439 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 771
S v Simxadi 1997 (1) SACR 169 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 794
S v Singo 2002 (4) SA 858 (CC); 2002 (2) SACR 160 (CC) . . . . . . . 167, 189, 755, 787, 793
S v Sishi [2000] 2 All SA 56 (N) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 794
S v Sithole 2005 (2) SACR 504 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 766
S v Siwela 1999 (2) SACR 685 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 781
S v Siyotula 2003 (1) SACR 154 (E) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 800
S v Snyman 1968 (2) SA 582 (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 765
S v Snyman 1999 (8) BCLR 931 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 783
S v Sochop 2008 (1) SACR 553 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 800
S v Soci 1998 (2) SACR 275 (E) . . . . . . . . . . . . . . . . . . . . . . . . . 769, 770, 773, 806, 808, 810
S v Solomons 2004 (1) SACR 137 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 759, 771, 772, 787
xli
S v Sonday 1995 (1) SA 497 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 802

S v Spies 2000 (1) SACR 312 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 811
S v Steyn 2001 (1) SA 1146 (CC); 2001 (1) SACR 25 (CC) . . . . . . . 154, 221, 802, 803, 804
S v Stowitzki 1995 (2) SA 525 (NmHC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 794
S v Tandwa2008 (1) SACR 613 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 766, 808
S v Tcoeib 1996 (7) BCLR 996 (NmS) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 255
S v Thapedi 2002 (1) SACR 598 (T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 776
S v Thebus 2003 (6) SA 505 (CC); 2003 (2) SACR 319 (CC) . . . . 47, 58, 275, 276, 747, 758,
760, 766
S v Thobela 2008 (1) SACR 605 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 799
S v Thomas 2001 (2) SACR 608 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 769
S v Thunzi 2010 (10) BCLR 983 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118, 182
S v Thusi 2002 (12) BCLR 1274 (N) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 771
S v Tshabalala 2011 (1) SACR 497 (GNP) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 759
S v Tshidiso 2002 (1) SACR 207 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 771
S v Tsotetsi (1) 2003 (2) SACR 623 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 810
S v Tsotetsi (2) 2003 (2) SACR 638 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 768
S v Tsotetsi (3) 2003 (2) SACR 648 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 810, 812
S v Turrell 1973 (1) SA 248 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 378
S v Tusani 2002 (2) SACR 468 (TD) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 768
S v Twala (South African Human Rights Commission Intervening) 1999 (2) SACR 622
(CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 802, 803
S v Twala 2000 (1) SA 879 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
S v Van der Merwe 1998 (1) SACR 194 (O) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 749
S v Van der Sandt 1997 (2) SACR 116 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 793
S v Van der Westhuizen 2011 (2) SACR 26 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 797
S v Van Heerden en Ander Sake 2002 (1) SACR 409 (T) . . . . . . . . . . . . . . . . . . . . . . . 771
S v Van Nell 1998 (8) BCLR 943 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
S v Vanqa 2000 (2) SACR 371 (TkHC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 781, 785
S v Vermaas 1995 (3) SA 292 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101, 770
S v Vermaas 1996 (1) SACR 528 (T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 779
S v Vilakazi 1996 (1) SACR 425 (T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 811
S v Viljoen 2003 (4) BCLR 450 (T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 769, 811
S v Visser 2001 (1) SACR 401 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 771
S v Walters 2001 (2) SACR 471 (TkD) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
S v Walters 2002 (4) SA 613 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58, 64, 114
S v Wanneburg 2007 (1) SACR 27 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 787
S v Western Areas Ltd 2004 (8) BCLR 819 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
S v Williams 1986 (4) SA 1188 (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267
S v Williams 1995 (3) SA 632 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . 137, 254, 284, 613, 747
S v Williams 2008 (1) SACR 65 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 759
S v Yanta 2000 (1) SACR 237 (Tk) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 781
S v Younas 1996 (2) SACR 272 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 794
S v Z and 23 similar cases 2004 (1) SACR 400 (E); 2004 (4) BCLR 410 (E) . . . . . . 199, 609,
786
S v Z en vier ander sake 1999 (1) SACR 427 (E) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 615
S v Zenzile 2009 (2) SACR 407 (WCC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 790
S v Zimmerie 1989 (3) SA 484 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 767, 792
S v Zondi 2003 (2) SACR 227 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 804
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Table of Cases
S v Zuma 1995 (1) SACR 568 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 749, 807

S v Zuma 1995 (2) SA 642 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135, 190
S v Zuma 2006 (2) SACR 191 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 768
S v Zwayi 1997 (2) SACR 772 (Ck) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 760, 776
S v Zwezwe 2006 (2) SACR 599 (N) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 767, 771
SA Chemical Workers Union v Sentrachem Ltd (1988) 9 ILJ 410 (IC) . . . . . . . . . . . . 509
SA Commercial Catering & Allied Workers Union v I & J Ltd 2000 (3) SA 705 (CC) 733
SA Liquor Traders’ Association v Gauteng Liquor Board 2009 (1) SA 565 (CC) . . . . 14, 143
SA Maritime Safety Authority v McKenzie (2010) 31 ILJ 529 (SCA) . . . . . . . . . . . . . 481
SA National Parks v Ras 2002 (2) SA 537 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208
SA Police Service v Police & Prisons Civil Rights Union 2011 (6) SA 1 (CC), (2011) 32
ILJ 1603 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 496
SA Society of Bank Officials v Standard Bank of SA Ltd (1998) 19 ILJ 223 (SCA) . . 482
SA Union of Journalists v South African Broadcasting Corporation (1999) 20 ILJ 2840
(LAC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 510
SA Yster, Staal & Verwante Nywerhede Unie v Consol Glass (Edms) Bpk (1991) 2(1)
SALLR 48 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 511
SABC v National Director of Public Prosecutions 2007 (4) SA 97 (CC); 2007 (1) SACR
408 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 743, 795
SACCAWU v Pick ’n Pay Retailers (Pty) Ltd (2012) 33 ILJ 279 (LC) . . . . . . . . . . . . 714
Sachs v D÷nges NO 1950 (2) SA 265 (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 452
Sager v Smith 2001 (3) SA 1004 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 734
Sanderson v Attorney General, Eastern Cape 1998 (2) SA 38 (CC); 1998 (1) SACR 227
(CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136, 140, 179, 752, 798, 799
SANDU v Minister of Defence 2004 (4) SA 10 (T), (2003) 24 ILJ 2101 (T) . . . . . . . 489
Santa Clara Pueblo v Martinez 436 US 49 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 409
Santos Professional Football Club (Pty) Ltd v Igesund 2002 (5) SA 688 (C) . . . . . . . . 292
Santos Professional Football Club (Pty) Ltd v Igesund 2003 (5) SA 73 (C) . . . . . . . . . 293
SAPAT v Director: Directorate for Organised Crime and Public Safety 2000 (2) BCLR
200 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Sasol Oil (Pty) Ltd v Metcalfe NO 2004 (5) SA 161 (W) . . . . . . . . . . . . . . . . . . . . . . . 652
SATAWU v Garvas 2011 (6) SA 382 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 389
SATAWU v Garvas 2013 (1) SA 83 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174, 378
SATAWU v Moloto 2012 (6) SA 249 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 497
Satchwell v President of Republic of South Africa 2002 (6) SA 1 (CC) . . . . . . . 154, 188, 218,
230, 418
Satchwell v President of the Republic of South Africa 2003 (4) SA 266 (CC) . . . . . . . 418
SAUK v O’Malley 1997 (3) SA 394 (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 368
Sauvé v Canada (Attorney General) [1993] 2 SCR 438 . . . . . . . . . . . . . . . . . . . . . . . . 436
Scagell v Attorney-General of the Western Cape 1996 (2) SACR 579 (CC) . . . . . . . . 757
Schenck v US 249 US 47 (1919) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 355
Schmerber v California 384 US 575 (1966) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 774, 775
Schoon v MEC, Department of Finance, Economic Affairs and Tourism, Northern
Province [2003] 9 BLLR 963 (T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 678
Schubart Park Residents’ Association v City of Tshwane Metropolitan Municipality
2013 (1) SA 323 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199
Section 27 v Minister of Education 2013 (2) SA 40 (GNP) . . . . . . . . . . . . . . . . . . . . . 716
Seedat’s Executors v The Master (Natal) 1917 AD 302 . . . . . . . . . . . . . . . . . . . . . . . 230, 333
Shabalala v Attorney-General, Transvaal 1995 (1) SA 608 (T) . . . . . . . . . . . . . . . . . . . 703
xliii
Shabalala v Attorney-General of Transvaal 1995 (2) SACR 761 (CC) . . . . . . . . . . . 747, 788
Shabalala v Attorney General of the Transvaal 1996 (1) SA 725 (CC) . . . . . 45, 63, 141, 167
Shabalala v S 1999 (4) All SA 583 (N) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 770
Shaik v Minister of Justice and Constitutional Development 2004 (3) SA 599 (CC);
2004 (1) SACR 105 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124, 750
Sharenisa v Minister van Veilighied en Sekuriteit [2010] ZAFSHC 149 . . . . . . . . . . . 718
Shelley v Kraemer 334 US 1 (1948) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Shepherd v O’Niell 2000 (2) SA 1066 (N) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86, 728
Shepstone & Wylie v Geyser NO 1998 (3) SA 1036 (SCA) . . . . . . . . . . . . . . . . . . . . . 728
Shilubana v Nwamitwa 2009 (2) SA 66 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 637
Shinga v The State 2007 (4) SA 611 (CC); 2007 (2) SACR 28 (CC) . . . . . . . . . 184, 221, 742,
795, 803, 804, 805
Shoprite Checkers (Pty) Ltd v Jardim 2004 (1) SA 502 (O) . . . . . . . . . . . . . . . . . . . . . 588
Shuttlesworth v Birmingham 394 US 147 (1969) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 392
Sibiya v Director of Public Prosecutions, Johannesburg 2005 (5) SA 315 (CC); 2006 (1)
SACR 220 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199, 260, 751, 752
Sidumo v Rustenburg Platinum Mines Ltd 2008 (2) SA 24 (CC); (2007) 28 ILJ 2405
(CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 480, 651, 713
Simonlanga v Masinga 1976 (4) SA 373 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 318
Simunye Developers CC v Lovedale Public FET College [2010] ZAECGHC 121 . . . 659
Singh v Commissioner, South African Revenue Service 2003 (4) SA 520 (SCA) . . . . 124
Singh v Minister of Justice and Constitutional Development 2013 (3) SA 66 (EqC) . . 234
Skhosana v Roos 2000 (4) SA 561 (LCC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 728
Skurweplaas 353 JR v PPC Aggregate Quarries (Pty) Ltd [2011] ZACC 36 . . . . . . . . 591
Smith v Allwright 321 US 649 (1944) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 406
Smith v Van Niekerk 1976 (4) SA 293 (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 345
Social and Economic Rights Action Centre & the Centre for Economic and Social
Rights v Nigeria Communication No. 155/96 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 573
Society of Advocates of Natal v De Freitas 1997 (4) SA 1134 (N) . . . . . . . . . . . . . . 410, 466
Sokhela v MEC for Agriculture and Environmental Affairs (KwaZulu-Natal) 2010 (5)
SA 574 (KZP) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 657
Soldatow v Australia Council (1991) 28 FCR 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 686
Solidarity obo Barnard v SA Police Service (2010) 31 ILJ 742 (LC) . . . . . . . . . . . . . . 504
Solidarity obo Louw v SA Police Service [2012] 6 BLLR 637 (LC) . . . . . . . . . . . . . . 504
Solidarity v Minister of Public Service and Administration (2004) 25 ILJ 1764 (LC) 485
Soller NO v G 2003 (5) SA 430 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 618
Soller v President of the Republic of South Africa 2005 (3) SA 567 (T) . . . . . . . . . . . 726
Sonderup v Tondelli 2001 (1) SA 1171 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601, 620
Soobramoney v Minister of Health (KwaZulu-Natal) 1998 (1) SA 765 (CC). . . . 21, 143, 145,
160, 268, 566
South African Airways (Pty) Ltd v Aviation Union of South Africa 2011 (3) SA 148
(SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
South African Airways (Pty) Ltd v Makwetla & Associates CC [2008] ZAGPHC . . . 729
South African Association of Personal Injury Lawyers v Heath 2000 (10) BCLR 1131
(T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 305
South African Association of Personal Injury Lawyers v Heath 2001 (1) SA 883
(CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 733
South African Association of Personal Injury Lawyers v Minister of Justice and
Constitutional Development 2013 (2) SA 583 (GNP) . . . . . . . . . . . . . . . . . . . . . . 716
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South African Breweries v Competition Commission [2011] ZACT 73 . . . . . . . . . . . . 713

South African Broadcasting Corp Ltd v National Director of Public Prosecutions 2007
(1) SA 523 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109, 344, 348, 349
South African Commercial Catering and Allied Workers Union v Irvin and Johnson
Limited 2000 (3) SA 705 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98, 797
South African Liquor Traders Association v Chairperson, Gauteng Liquor Board 2009
(1) SA 565 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156, 194
South African National Defence Force Union v Minister of Defence 1999 (3) BCLR
321 (T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84, 87, 340
South African National Defence Force Union v Minister of Defence 1999 (4) SA 469
(CC). . . . . . . . . . . . . . . . . . . . . . . . . 35, 116, 140, 167, 171, 185, 276, 340, 378, 391, 404,
413, 414, 475, 489, 544, 747
South African National Defence Union v Minister of Defence 2004 (4) SA 10
(T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 378, 414, 490, 491
South African National Defence Union v Minister of Defence 2007 (5) SA 400
(CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184, 493, 650
South African Police Service v Police and Prisons Civil Rights Union 2011 (6) SA 1
(CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
South African Police Service v Solidarity obo Barnard 2013 (3) BCLR 320 (LAC) . . 244
South African Police Union v National Commissioner of the South African Police
Service (2005) 26 ILJ 2403 (LC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 664
South African Post Office Ltd v Van Rensburg 1998 (1) SA 796 (E) . . . . . . . . . . . . . . 462
South African Roads Board v Johannesburg City Council 1991 (4) SA 1 (A) . . . . . . . 673
South African Shore Angling Association v Minister of Environmental Affairs and
Tourism 2002 (6) BCLR 609 (SE) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
South African Transport and Allied Workers Union v Garvas (2012) 33 ILJ 1593 (CC) 497
South Peninsula Municipality v Malherbe NO 1999 (2) SA 966 (C) . . . . . . . . . . . . . . 554
Southern African Litigation Centre v National Director of Public Prosecutions 2012
(10) BCLR 1089 (GNP) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 689
Speaker of the National Assembly v De Lille 1999 (4) SA 863 (SCA) . . . . . . . . . . . . . 353
SS v Presiding Officer in the Children’s Court, Krugersdorp 2012 (6) SA 45 (GSJ) . . 605
Stanfield v Minister of Correctional Services 2003 (12) BCLR 1384 (C) . . . . . . . . . 671, 784
Stankov and the United Macedonian Organisation Ilinden v Bulgaria (2001) ECHR
563 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 380
Steele v South Peninsula Municipal Council 2001 (3) SA 640 (C) . . . . . . . . . . . . . . . . 654
Steenkamp NO v Provincial Tender Board, Eastern Cape 2007 (3) SA 1210 (CC) . . . . . . 181,
200, 662
Steinberg v South Peninsula Municipality 2001 (4) SA 1243 (SCA) . . . . . . . . . . . . . . 549
Stojce v University of KwaZulu-Natal (2006) 27 ILJ 2696 (LC) . . . . . . . . . . . . . . . . 498, 499
Stoman v Minister of Safety & Security 2002 (3) SA 468 (T), (2002) 23 ILJ 1020
(T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243, 502
Strategic Liquor Services v Mvumbi NO 2010 (2) SA 92 (CC) . . . . . . . . . . . . . . . . . . 731
Strydom v Minister of Correctional Services 1999 (3) BCLR 342 (W) . . . 199, 595, 784, 786
Strydom v Nederduitse Gereformeerde Gemeente, Moreleta Park 2009 (4) SA 510
(EqC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 318, 319
Stulweni v SAPS Western Cape Province (2003) 24 ILJ 883 (CCMA) . . . . . . . . . . . . 499
Sumbana v Head of Department of Public Works, Limpopo Province 2009 (3) SA 64
(V) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 666, 707
Sunday Times v United Kingdom (1979) 2 EHRR 245 . . . . . . . . . . . . . . . . . . . . . . . 158, 468
xlv
Swanepoel v Transnet 2000 (2) SA 191 (T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 722

Swartbooi v Brink (1) 2003 (5) BCLR 497 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
SWEAT v Minister of Safety and Security 2009 (2) SACR 417 (WCC) . . . . . . . . . . . 777
T
Tap Wine Trading v Cape Classic Wines (Western Cape) 1999 (4) SA 194 (C) . . . . . . 313
Tarloff v Olivier 2004 (5) BCLR 521 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 361
Tashjian v Republican Party of Connecticut 479 US 208 (1986) . . . . . . . . . . . . . . . . . 404
TAWUSA & Alliance Comprising of STEMCWU v Anglo Platinum Ltd (2009) 30 ILJ
2142 (LC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 495
Taylor v Kurtstag NO 2005 (1) SA 362 (W) . . . . . . . . . . . . . . . . . . . . . . . . 316, 415, 628, 651
Telcordia Technologies Inc v Telkom SA Ltd 2007 (3) SA 266 (SCA) . . . . . . . . . . . . 40, 712
Telematrix (Pty) Ltd v Advertising Standards Authority of SA [2005] 2 All SA 97 (W) 203
Tellis v Bombay Municipal Corporation 1987 LRC (Const) 351 SC . . . . . . . . . . . . . . 268
Terry v Adams 345 US 461 (1953) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 407
Tettey v Minister of Home Affairs 1999 (1) BCLR 68 (D) . . . . . . . . . . . . . . . . . . . . . . 39
Texas Monthly, Inc v Bullock 489 US . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 326
Texas v Johnson 491 US 397 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 355
TGWU v Bayete Security Holdings (1999) 20 ILJ 1117 (LC) . . . . . . . . . . . . . . . . . . 499, 510
Thatcher v Minister of Justice and Constitutional Development 2005 (1) SACR 238
(CPD) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 751
The Citizen (1978) (Pty) Ltd v McBride 2001 (4) SA 191 (CC) . . . . . . . . . . . . . . . . . . 722
Theobald v Minister of Safety and Security 2011 (1) SACR 379 (GSJ) . . . . . . . . . . . . 778
Theron v Ring van Wellington van die NG Sendingkerk in SA 1976 (2) SA 1 (A) . . . 319
Thint (Pty) Ltd v National Director of Public Prosecutions 2009 (1) SA 1 (CC) . . . . 306, 712
Thint Holdings (Southern Africa) (Pty) Ltd v National Director of Public Prosecutions
2009 (1) SA 141 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253, 341, 753
Thusi v Minister of Home Affairs 2011 (2) SA 561 (KZP) . . . . . . . . . . . . . . . . . . . . . . 715
Thwaites v Health Sciences Centre (1988) 51 Man R (2d) 196 (CA) . . . . . . . . . . . . . . 274
Tirfu Raiders Rugby Club v South African Rugby Union [2006] 2 All SA 549 (C) . . . 660
Tobacco Institute of Southern Africa v Minister of Health 1998 (4) SA 745 (C) . . . . . 703
Tobani v Minister of Correctional Services NO [2002] 2 All SA 318 (SE) . . . . . . . . . 776
Tongoane v National Minister of Agriculture and Land Affairs 2010 (6) SA 214 (CC) 559
Total Computer Services (Pty) Ltd v Municipal Manager, Potchefstroom Local
Municipality 2008 (4) SA 346 (T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 670
Total Support Management (Pty) Ltd v Diversified Health Systems (SA) . . . . . . . . . . 654
Tower Construction CC v Van der Walt [2012] ZAWCHC 197 . . . . . . . . . . . . . . . . . . 742
Townsend-Turner v Morrow [2004] 1 All SA 235 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . 605
Transkei Public Servants Association v Government of the Republic of South Africa
1995 (9) BCLR 1235 (Tk) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 537
Transnet Limited v Goodman Brothers (Pty) Ltd 2001 (1) SA 853 (SCA) . . . . . . 38, 43, 661
Transnet Limited v Sechaba Photoscan (Pty) Ltd 2005 (1) SA 299 (SCA) . . . . . . . . . . 203
Transport & General Workers Union v Bayete Security Holdings (1999) 20 ILJ 1117
(LC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 499, 510
Transvaal Agricultural Union v Minister of Agriculture & Land Affairs (1) 2003 (4) SA
397 (LCC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Transvaal Agricultural Union v Minister of Agriculture & Land Affairs (2) 2003 (4) SA
411 (LCC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
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Table of Cases
Transvaal Agricultural Union v Minister of Agriculture & Land Affairs (SCA, 23 March
2005, unreported) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Transvaal Agricultural Union v Minister of Land Affairs 1997 (2) SA 621 (CC) . . . . . . 84, 85,
129
Treatment Action Campaign v Minister of Health 2002 (4) BCLR 356 (T) . . . . . . . . . 199
Trinity Asset Management (Pty) Ltd v Investec Bank 2009 (4) SA 89 (SCA) . . . . . . . 78, 717
Trinity Broadcasting, Ciskei v Independent Communications Authority of South Africa
2004 (3) SA 346 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 670
Troskie v Van der Walt 1984 (3) SA 545 (O) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 292
Tshona v Regional Magistrate, Uitenhage 2001 (8) BCLR 86 (E) . . . . . . . . . . . . . . . . 794
TSI Holdings (Pty) Ltd v National Union of Metalworkers (2006) 27 ILJ 1483 (LAC) 496
Tsotetsi v Mutual and Federal Insurance Company Ltd 1997 (1) SA 585 (CC) . . . . . . 53
Tulip Diamonds FZE v Minister of Justice and Constitutional Development 2013 (1)
SACR 323 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Tutu v Minister of Internal Affairs 1982 (4) SA 571 (T) . . . . . . . . . . . . . . . . . . . . . . . . 452
Twayie v Minister van Justisie 1986 (2) SA 101 (O) . . . . . . . . . . . . . . . . . . . . . . . . . . . 776
Twee Jonge Gezellen (Pty) Ltd v Land and Agricultural Development Bank of SA 2011
(3) SA 1 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163, 186, 729
U
UDM v Governor-General [1991] LRC (Const) 328 . . . . . . . . . . . . . . . . . . . . . . . . . . . 423
Uncedo Taxi Service Association v Maninjwa 1998 (2) SACR 166 (E) . . . . . . . . . . . . 756
Union Government (Minister of Mines and Industries) v Union Steel Corporation
(South Africa) Ltd 1928 AD 220 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 669
Union of Refugee Women v Director: Private Security Industry Regulatory Authority
2007 (4) SA 395 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225, 237, 456, 661
Unitas Hospital v Van Wyk 2006 (4) SA 436 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . 703
United Auto Workers v Johnson Controls, Inc 111 SC 1196 (1991) . . . . . . . . . . . . . . . 509
United Democratic Movement v President of the Republic of South Africa (No 2) 2003
(1) SA 495 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104, 144, 173, 184, 406, 426
United Parties v Minister of Justice, Legal and Parliamentary Affairs 1998 (2) BCLR
224 (ZS) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84, 86
United States v O’Brien 391 US 367 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 342
Universiteit van Pretoria v Tommie Meyer Films (Edms) Bpk 1979 (1) SA 441 (A) . . 296
University of the Western Cape v Member of Executive Committee for Health and
Social Services 1998 (3) SA 124 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
University of SA v Reynhardt (2010) 31 ILJ 2368 (LAC) . . . . . . . . . . . . . . . . . . . . . . 507
US v Wade 228 US 214 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 776
Uthukela District Municipality v President of the Republic of South Africa 2003 (1) SA
678 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117, 124
V
Valley Packers Co-operative Ltd v Dietloff [2001] 2 All SA 30 (LCC) . . . . . . . . . . . . 728
Van Biljon v Minister of Correctional Services 1997 (4) SA 441 (C) . . . . . . . . . . . . . . 593
Van der Burg v National Director of Public Prosecutions 2012 (2) SACR 331 (CC) . . 623
Van der Merwe v Road Accident Fund 2006 (4) SA 230 (CC) . . . . . . . 39, 184, 218, 220, 232
Van der Mussele v Belgium 6 EHRR 163 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291
Van der Spuy v General Council of the Bar of South Africa 2002 (5) SA 392 (CC) . . 124
Van der Walt v Metcash Trading Ltd 2002 (4) SA 317 (CC) . . . . . . . . . . . . . . . . . . . . . 714
xlvii
Van Dyk v Minister van Veiligheid en Sekuriteit (TPD 29 April 2003, unreported) . . . 405
Van Eeden v Minister of Safety and Security 2003 (1) SA 389 (SCA) . . . . . . . 263, 283, 556
Van Huysteen NO v Minister of Environmental Affairs and Tourism 1996 (1) SA 283
(C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Van Loggerenburg v 94.7 Highveld Stereo 2004 (5) BCLR 561 (T) . . . . . . . . . . . . . . . 358
Van Rooyen v Departement van Korretiewe Dienste 2005 (1) SACR 77 (T) . . . . . . . . 788
Van Rooyen v S 2001 (4) SA 396 (T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 736
Van Rooyen v S (General Council of the Bar of South Africa Intervening) 2002 (5) SA
246 (CC); 2002 (2) SACR 222 (CC) . . . . . . . . . . . . . . . . . . . . . . 8, 19, 70, 733, 736, 796
Van Straaten v President of the Republic of South Africa 2009 (3) SA 447 (CC) . . . . 21
Van Vuuren v Minister of Correctional Services 2011 (10) BCLR 1051 (CC) . . . . . . . 14
Van Wyk v Unitas Hospital 2008 (2) SA 472 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
Van Zyl v Government of the Republic of South Africa 2008 (3) SA 294 (SCA) . . . . 447
Van Zyl v New National Party 2003 (10) BCLR 1167 (C) . . . . . . . . . . . . . . . . . . . . . . 659
Veerasamy v Engen Refinery 2000 (3) SA 337 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . 129, 310
Verstappen v Port Edward Town Board 1994 (3) SA 569 (D) . . . . . . . . . . . . . . . . . . . . 519
Victoria & Alfred Waterfront (Pty) Ltd v Police Commissioner of Western Cape 2004
(4) SA 444 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 388, 453
Viking Pony Africa Pumps (Pty) Ltd t/a Tricom Africa v Hidro-Tech Systems (Pty) Ltd
2011 (1) SA 327 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135, 665
Virginia State Board of Pharmacy v Virginia Citizens Consumer Council, Inc 425 US
748 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 361
Visser v Minister of Justice and Constitutional Affairs (2004) 25 ILJ 1417 (T) . . . . . . 503
Vogt v Germany (1996) 21 EHRR 205 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 405
Volks NO v Robinson 2005 (5) BCLR 466 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218, 228
Von Abo v President of the Republic of South Africa 2009 (5) SA 345 (CC) . . . . . . 103, 118
W
W L Ochse Webb & Pretorius (Pty) Ltd v Vermeulen (1997) 28 ILJ 361 (LAC) . . . . . 481
Wagener v Pharmacare Ltd 2003 (4) SA 285 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . 203
Walele v City of Cape Town 2008 (6) SA 129 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . 652
Wallace v Jaffree 472 US 38 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 326
Wallach v High Court of South Africa (Witwatersrand Local Division) 2003 (5) SA 273
(CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
Waltons Stationery Co (Edms) Bpk v Fourie 1994 (4) SA 507 (O) . . . . . . . . . . . . . . . 469
Ward v Cape Peninsula Ice Skating Club 1998 (2) SA 487 (C) . . . . . . . . . . . . . . . . . . 417
Ward v Rock Against Racism 491 US 781 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 390
Wary Holdings (Pty) Ltd v Stalwo (Pty) Ltd 2009 (1) SA 337 (CC) . . . . . . . . . . . . 58, 98, 99
Watchtower Bible and Tract Society of New York, Inc v Village of Stratton 536 US 150
(2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 388
Weare v Ndebele NO 2009 (1) SA 600 (CC) . . . . . . . . . . . . . . . . . . . . . . . . 36, 117, 220, 222
Wessels v Minister for Justice and Constitutional Development 2010 (1) SA 128 (GP) 662
Wesso v Director of Public Prosecutions, Western Cape 2001 (1) SACR 674 (C) . . . . 811
West Virginia State Board of Education v Barnette 319 US 624 (1943) . . . . . . . . . . . . 412
Whittaker v Roos & Bateman; Morant v Roos & Bateman 1912 AD 92 . . . . . . . . . . . 784
Wiese v Government Employees’ Pension Fund 2012 (6) BCLR 599 (CC) . . . . 89, 103, 124
Wiggins v Acting Regional Magistrate, Cape Town 2008 (1) SACR 178 (C) . . . . . . . 799
Wild v Hoffert NO 1998 (2) SACR 1 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 798, 799
Willemse v Patelia NO (2007) 28 ILJ 428 (LC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 506
xlviii
Table of Cases
Winston v Lee 470 US 753 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 288

Wisconsin Action Coalition v City of Kenosha 767 F 2d 1248 (7th Cir 1985) . . . . . . . 388
Wisconsin v Yoder 406 US 205 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 409, 634
Wittmann v Deutscher Schülverein, Pretoria 1998 (4) SA 423 (T) . . . . . . . 38, 326, 409, 641
Woolmington v DPP [1935] AC 462 (HL) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 753
Woolworths (Pty) Ltd v Whitehead 2000 (12) BCLR 1340 (LAC) . . . . . . . . . . . . . . . . 227
Workers International to Rebuild the Fourth International v IEC 1994 (3) SA 277
(SPE) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 424
X
X v Federal Republic of Germany Application Number 4653/70 . . . . . . . . . . . . . . . . . 291
X v United Kingdom 4 EHRR 188 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 276
X, Y & Z v Sweden 5 EHRR 147 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 323
Y
Young, James & Webster v United Kingdom (1985) 4 ERR 38 . . . . . . . . . . . . . . . . . . 483
Z
Zanner v DPP, JHB 2006 (2) SACR 45 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 798, 799
Zantsi v Chairman, Council of State, Ciskei 1995 (2) SA 534 (Ck) . . . . . . . . . . . . . . . 722
Zantsi v Council of State, Ciskei 1995 (4) SA 615 (CC) . . . . . . . . . . . . . . . . 57, 68, 103, 104
Zealand v Minister for Justice and Constitutional Development 2008 (4) SA 458 (CC);
2008 (2) SACR 1 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 272, 273, 275, 777, 778, 779
Zimbabwe Township Developers (Pty) Ltd v Lou’s Shoes (Pty) Ltd 1984 (2) SA 778
(ZS) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Zondi v MEC for Traditional and Local Government Affairs 2005 (3) SA 589 (CC) . . . . . 192,
650, 718
Zondi v MEC, Traditional and Local Government Affairs 2006 (3) SA 1 (CC) . . . . . . 195
xlix
Table of Principal Works Cited
Baxter Administrative Law. . . . . . . . . . . . . . . . . . . . . . . Lawrence Baxter Administrative
Law (Juta, 1984)
Carpenter Constitutional Law . . . . . . . . . . . . . . . . . . . . Gretchen Carpenter Introduction
to South African Constitutional
Law (Butterworths, 1987)
Currie Promotion of Administrative Justice Act . . . . . . . Iain Currie The Promotion of
Administrative Justice Act: A
Commentary 2 ed (Siberink, 2007)
Currie & De Waal New Constitutional Law . . . . . . . . . . Iain Currie & Johan de Waal The
New Constitutional and Adminis-
trative Law vol 1 (Juta, 2000)
Currie & Klaaren PAIA Commentary . . . . . . . . . . . . . . . Iain Currie & Jonathan Klaaren
The Promotion of Access to Infor-
mation Act Commentary (Siberink,
2002)
Du Plessis Re-Interpretation of Statutes . . . . . . . . . . . . . Lourens du Plessis Re-Interpreta-
tion of Statutes (Lexis-Nexis But-
terworths, 2002)
Dugard Human Rights . . . . . . . . . . . . . . . . . . . . . . . . . . John Dugard Human Rights and
the South African Legal Order
(Princeton University Press, 1978)
Du Toit et al Commentary on the Criminal Procedure E du Toit, FJ de Jager, A Paizes, A
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Skeen, S van der Merwe Du Toit:
Commentary on the Criminal Pro-
cedure Act rev 49 (Juta, 2012)
Hoexter Administrative Law. . . . . . . . . . . . . . . . . . . . . . Cora Hoexter Administrative Law
in South Africa 2 ed (Juta, 2012)
Liebenberg Socio-Economic Rights . . . . . . . . . . . . . . . . Sandra Liebenberg Socio-Eco-
nomic Rights Adjudication under a
Transformative Constitution (Juta,
2010)
Mureinik ‘A Bridge to Where?’ . . . . . . . . . . . . . . . . . . . Etienne Mureinik ‘A Bridge to
Where? Introducing the interim
Bill of Rights’ (1994) 10 SAJHR
31
Neethling et al Neethling’s Law of Personality . . . . . . . . J Neethling, JM Potgieter and PJ
Visser Neethling’s Law of Person-
ality 2 ed (LexisNexis Butter-
worths, 2005)
Rautenbach & Malherbe Staatsreg . . . . . . . . . . . . . . . . . IM Rautenbach & EFJ Malherbe
Staatsreg 6 ed (LexisNexis Butter-
worths, 2012)
Woolman, Bishop & Brickhill (eds) Constitutional Law S Woolman, M Bishop & J Brick-
of South Africa . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . hill (eds) Constitutional Law of
South Africa 2 ed rev 4 (Juta,
2012)
l
Chapter One
Introduction to the Constitution and

the Bill of Rights
1.1 The Bill of Rights in context. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 A brief history. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
(a) A constitutional revolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
(b) The negotiations process and the interim Constitution . . . . . . . . . . . 4
(c) The 1996 Constitution and the certification process . . . . . . . . . . . . . . 6
1.3 Basic principles of the new constitutional order . . . . . . . . . . . . . . . . . . . . . . 7
(a) Constitutionalism. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
(b) The rule of law: the principle of legality and the prohibition of
arbitrariness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(c) Democracy and accountability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(d) Separation of powers and checks and balances . . . . . . . . . . . . . . . . . . . 18
1.1 THE BILL OF RIGHTS IN CONTEXT

This chapter provides a brief historical background to the 1996 Constitution and a
sketch of some of its most important features. This book is not a treatise on
constitutional law in general and the focus in the chapters that follow is on the Bill of
Rights and on its direct application. However, the Bill of Rights can only be properly
understood as a part of the Constitution as a whole and as a significant element of the
Constitution’s project of transforming South African society and the country’s political
and legal systems. Understanding the scope, and necessity, of this project requires a
brief account of the historical origins of the 1996 Constitution.
This introductory chapter will also outline some of the basic principles of
constitutional law that are fundamental to an understanding of the Bill of Rights in its
constitutional context. These are the concepts of constitutionalism and the rule of law
and the associated concepts of constitutional supremacy, justiciability and entrench-
ment. The chapter further considers a number of principles that directly govern the
structure and functioning of the state and the exercise of public power but that also
inform the way the Bill of Rights is interpreted: legality, democracy and accountability;
separation of powers and checks and balances.
1.2 A BRIEF HISTORY
(a) A constitutional revolution

The two post-apartheid Constitutions, the interim Constitution which came into force on
27 April 1994 and its successor, the 1996 or ‘Final’ Constitution, brought about a
1
1.2 The Bill of Rights Handbook
constitutional revolution in South Africa.1 The most significant elements of this

revolution are as follows:
1. For the first time in South Africa’s history, the franchise and associated political
and civil rights were accorded to all citizens without racial qualification. The
interim Constitution brought to an end the racially qualified constitutional order
that had accompanied three hundred years of colonialism, segregation and
apartheid. It replaced it with a universal franchise and an electoral system based on
proportional representation. It also ended the racial ‘Balkanisation’ that was the
hallmark of grand apartheid.2 The farcical statelets that had been given separate
constitutional status under apartheid were reincorporated into the national territory.
2. Parliamentary sovereignty, the fundamental principle of constitutionalism that
had governed the previous constitutional order, was replaced by the principle of
constitutional supremacy. A Bill of Rights was put in place to safeguard human
rights, ending centuries of abuse by the state or tolerated by it. The courts were
given the power to declare invalid any law or conduct inconsistent with the Bill
of Rights and the Constitution.
3. The strong central government of the past was replaced by a system of
government in which legislative and executive power was divided among
national, provincial and local spheres of government.
It is the second of these changes that is the focus of this book. Prior to 1994, effective
protection of human rights by the courts was virtually impossible. By 1806, when
British colonisers occupied and imposed their public law on the Cape, the doctrine of
Parliamentary supremacy—that Parliament could ‘do everything that is not naturally
impossible’3—had come to dominate English constitutional law. By the time
self-government was granted to the Cape and Natal, and certainly by the time of the
establishment of the Union of South Africa in 1910, Parliamentary supremacy was the
defining feature of Westminster constitutionalism.4 According to this doctrine,
Parliament could make any law it wished and no person or institution (including the
courts) could challenge the laws of Parliament.5 What, then, prevents Parliament from
being a tyrant? In its jurisdiction of origin—Britain—Parliament’s monopoly of power
could be justified by the fact that the British Parliament is the representative branch of
the state. It derives its power from and is accountable for its actions to the electorate, the
body of citizens who elected it to office. To ensure its own political survival, the British
Parliament could therefore not legislate against the wishes of the people or against ‘the
sentiment prevailing among the distinct majority of the citizens of a given country’.6 But
in the racially divided state created by the 1909 Union Constitution, the South African
Parliament represented only the white minority while black citizens were governed by
1
LWH Ackermann ‘The Legal Nature of the South African Constitutional Revolution’ (2004) 4 New Zealand
LR 633.
2
The classic study of the law of apartheid is Dugard Human Rights.
3
Blackstone’s Commentaries in the Laws of England 4 ed (1876) vol 1 129.
4
Dugard Human Rights 14–18.
5
AV Dicey An Introduction to the Study of the Law of the Constitution 10 ed (1959) xxxiv.
6
AV Dicey Lectures on the Relation Between Law and Public Opinion in England during the Nineteenth
Century (1905) 55, quoted in PP Craig ‘Dicey: Unitary, Self-Correcting Democracy and Public Law’ (1990) 106
Law Quarterly Review 105, 111.
2
Introduction to the Constitution and the Bill of Rights 1.2
the executive.7 The majority of citizens therefore had no vote with which to constrain or
sanction Parliament and discourage it from legislating unpopular or repressive
measures. A mere majority of the members of a whites-only Parliament could write and
rewrite the law, alter the basic structure of the state and invade human rights without
constraint.8
Nor were there any significant judicial constraints on Parliament. A court could
only declare an Act invalid if it had not been passed in accordance with the
procedures for passing legislation that had been laid down in the Constitution.9 Aside
from this narrow procedural review, the courts could not review Parliamentary
legislation on substantive grounds. In particular, it was not possible for a court to
declare an Act of Parliament invalid because it violated human rights. Moreover, the
three South African constitutions that preceded the interim Constitution10 were, in
most respects, little different from ordinary Acts of Parliament. They did not have
supreme status and Parliament was free to amend them by ordinary procedures.11
The common law provided some protection for individual rights but Parliament
could pass legislation amending the common law in whatever way it thought fit.
And, as opposition to apartheid grew, the government frequently resorted to
proclaiming states of emergency, which saw the suspension of the few civil rights
that had survived years of ruthless cutting-back by discriminatory and ‘security’
legislation.12 If there ever was a constitutional mismatch, it was the application of
the British doctrine of parliamentary sovereignty to the racially divided South
African state.
7
See, further, Currie & De Waal New Constitutional Law 50–1.
8
Some changes were made to this system by the Tricameral Constitution (Constitution of the Republic of
South Africa Act 110 of 1983) which expanded the racial elite with representation in the national Parliament to
include ‘coloureds’ and Indians. However, a number of mechanisms ensured that power remained safely in the
hands of the majority political party in the (white) House of Assembly. See, further, Currie & de Waal New
Constitutional Law 55–6.
9
Harris v Minister of the Interior 1952 (2) SA 428 (A) (Parliamentary supremacy meant that there could be no
restrictions on the substance of the legislation that Parliament may pass; however the Constitution could impose
procedural restrictions, requiring legislation to be passed in a certain manner and using a certain form.) The
fundamental logic underlying this decision still holds under the new Constitution: see Doctors for Life
International v Speaker of the National Assembly 2006 (6) SA 416 (CC) [208].
10
These were the Union Constitution (South Africa Act 1909 (9 Edw VII, c 9)), the Republic Constitution
(Constitution of the Republic of South Africa Act 32 of 1961) and the Tricameral Constitution (Constitution of
the Republic of South Africa Act 110 of 1983).
11
Amendment of a small number of sections did, however, require a special procedure. These were the
so-called entrenched sections. Section 152 of the 1909 Union Constitution provided that ‘Parliament may by law
repeal or alter any of the provisions of this Act’. However, the repeal or alteration of the provisions of inter alia ss
35, 137 and the entrenching section, s 152 itself, would only be valid if the Bill was passed by both Houses of
Parliament sitting together and agreed to by not less than two-thirds of the total number of members of both
Houses. Section 35 protected the non-white franchise in the Cape Province and s 137 the equality of the two
official languages, Dutch and English. When the National Party came to power in 1948, it tried to repeal s 35,
without following the special procedures required by s 152. These attempts were invalidated by the Appellate
Division in Harris v Minister of the Interior 1952 (2) SA 428 (A) and Minister of the Interior v Harris 1952 (4)
SA 769 (A), provoking a constitutional crisis. After some manipulation of the size and method of composing the
Senate, the requisite majority was obtained in 1956 and the amendment was sanctioned by a majority of the court
in Collins v Minister of the Interior 1957 (1) SA 552 (A). See, further, Currie & De Waal New Constitutional Law
46–51.
12
On the erosion of human rights by apartheid and security legislation, see Dugard Human Rights and
AS Mathews Freedom, State Security and the Rule of Law (1986).
3
(b) The negotiations process and the interim Constitution

The interim Constitution was the result of a lengthy and difficult process of negotiation
between the representatives of the apartheid state and its opponents.13 Negotiation was a
response to an effective stalemate in the long war between the apartheid regime and its
opponents. In the 1980s the white government realised that its ‘Total Strategy’—a
combination of limited political and economic reform and systematic repression of
dissent—was unlikely to succeed in achieving stability. At the same time the liberation
movements realised that the combination of armed struggle and economic sanctions
would not result in rapid change. Faced with these realities, informal contacts started in
1985 between the National Party government and the imprisoned Nelson Mandela.
These secret meetings continued until 1990, when State President FW de Klerk took the
dramatic step of releasing Mandela and lifting all legal restrictions on the activities of
the principal liberation movements—the African National Congress, the Pan Africanist
Congress and the South African Communist Party—opening the way for free political
activity and the commencement of official negotiations. The initial agreements between
the government and the ANC (‘talks about talks’) were aimed at removing the obstacles
to negotiations: the state of emergency had to be lifted, the armed struggle suspended,
political prisoners released and exiles allowed to return to South Africa.
Despite the signing of a National Peace Accord in September 1991, increasing levels
of political violence almost derailed the negotiations on a number of occasions.14 To the
credit of the politicians involved, they stuck to the process.15 All-party negotiations
formally began with the convening of the Conference for a Democratic South Africa
(CODESA) on 20 December 1991 and ended, two agonised years later, with the
adoption of the interim Constitution by the Tricameral Parliament on 22 December
1993.16
At CODESA, the parties agreed on a two-stage transition. As the Constitutional Court
succinctly described it:
Instead of an outright transmission of power from the old order to the new, there would be a
programmed two-stage transition. An interim government, established and functioning
under an interim constitution agreed to by the negotiating parties, would govern the country
on a coalition basis while a final constitution was being drafted. A national legislature,
13
See H Ebrahim The Soul of a Nation: Constitution-Making in South Africa (1998) for a historical account of
the constitutional negotiations. Also P Andrews & S Ellmann (eds) The Post-Apartheid Constitutions (2001),
R Spitz & M Chaskalson The Politics of Transition (2000).
14
The causes of some of the more egregious incidents of violence have never been satisfactorily cleared up.
Most controversial remains the massacre of more than 40 residents of the township of Boipatong during the
morning of 17 June 1992, an event that led to the formal suspension of negotiations by the ANC. Another tragedy
was the killing of ANC demonstrators at Bisho in September 1992 and the battle between citizens of the former
Bophuthatswana and AWB invaders shortly before the 1994 elections. The biggest test was undoubtedly the
assassination of Chris Hani, a popular ANC leader on 19 April 1993 and the enormous outpouring of grief and
anger that his death precipitated. Intended by right-wingers to derail the negotiations, the murder of Hani and the
glimpse it provided of the grim consequences of a failure to reach a settlement instilled a new sense of urgency
into the process. See Ebrahim (note 13 above) 154, Currie & De Waal New Constitutional Law 61.
15
The National Party government’s efforts to negotiate a solution were sanctioned by the overwhelming
support it obtained in an all-white referendum on political change held in March 1992, while the ANC’s efforts
were boosted from time to time by campaigns of ‘rolling mass action’.
16
See A Sparks Tomorrow is Another Country: The Inside Story of South Africa’s Negotiated Revolution
(1994).
4
elected (directly and indirectly) by universal adult suffrage, would double as the
constitution-making body and would draft the new constitution within a given time.17
Agreement could not be reached at CODESA on the size of the majority of the elected
constitution-making body that would have to agree on the final Constitution.18 Despite
the failure of CODESA, negotiations continued through a channel of communication
that was established between the ANC and the government.19 This resulted in a Record
of Understanding between the antagonists in September 1992 and the resumption of
negotiations in a new forum called the Multi-party Negotiation Process (MPNP). The
MPNP commenced work in March 1993 at Kempton Park. It was here that agreement on
the text of the interim Constitution and a framework for the final Constitution, in the
form of a set of binding Constitutional Principles, was reached in the early hours of
18 November 1993.
The interim Constitution was formally adopted as an Act of the pre-democratic
Tricameral Parliament, ensuring the legal continuity of the South African state. After
the 1994 elections, the new Parliament and a Government of National Unity20 were
established and began to function in accordance with the interim Constitution, which
came into force on 27 April 1994.
The interim Constitution was a fundamental break with the past. Its first two
chapters guaranteed a united South Africa and ended the territorial fragmentation
characteristic of apartheid, created a common South African citizenship, and, for the
first time, extended the franchise to all citizens over 18 years of age. In addition,
these historic chapters introduced a fundamentally new constitutional order by
declaring the Constitution to be the supreme law of the Republic and declaring that
any law or act inconsistent with the Constitution had no force and effect.21 The
application of the interim Constitution in s 4(2) to all branches and levels of
government ensured the primacy of the constitution and swept aside the principle of
Parliamentary supremacy that had previously dominated South African
constitutionalism.
From the very outset of the negotiation process, the major political players had
agreed that a new South Africa should be constructed within the broad parameters of
a justiciable constitution. This decision has two major implications. First, under this
system of government, the Constitution is the supreme law, binding all parts of the
state including the legislative majority. Constitutional change may only be achieved
by amending the Constitution itself through special procedures and by a special
majority of legislators. Even then, the basic Constitutional structure is not subject to
lawful amendment unless there is nearly unanimous agreement and the proposed
changes do not fundamentally alter the spirit of the constitutional system. Second, a
justiciable constitution empowers the judiciary to uphold the constitution. Under a
system of parliamentary supremacy courts are required to abide by the decisions of
the political majority in Parliament. Under constitutional supremacy the courts are
17
Ex parte Chairperson of the Constitutional Assembly: in re Certification of the Constitution of the Republic
of South Africa 1996 (First Certification judgment) 1996 (4) SA 744 (CC) [13].
18
The ANC proposed a two-thirds majority, while the NP government insisted on a 75 per cent majority.
19
The channel consisted of Mr Cyril Ramaphosa of the ANC and Mr Roelf Meyer of the NP.
20
One of the compromises that made the interim Constitution possible was that the GNU provisions required
the new cabinet to comprise members of all political parties that had received over five per cent of the vote in the
national election.
21
Section 4 of the interim Constitution.
5
mandated to enforce the constitution even to the point of striking down the decisions
of the democratically elected legislature.
The interim Constitution was a transitional constitution. One of its principal
purposes was to set out the procedures for the negotiation and drafting of a ‘final’
Constitution. Once the 1996 Constitution was adopted the interim Constitution was
repealed and fell away. But, in spite of its transitional status, the interim Constitution
was nevertheless binding, supreme and fully justiciable. It contained, in chapter 3, a
comprehensive Bill of Rights. Because the interim Bill of Rights was for the most
part similar to that in the 1996 Constitution, most of the judicial decisions on rights
handed down under the interim Constitution remain binding.
(c) The 1996 Constitution and the certification process

The 1996 Constitution completes South Africa’s constitutional revolution. Whereas the
interim Constitution was not the product of a democratically elected body, the 1996
Constitution was drafted and adopted by an elected Constitutional Assembly.22 The
Constitutional Assembly was given two years to produce a constitution that conformed
to the 34 Constitutional Principles that had been agreed on during the 1991–1993
political negotiations.23 To ensure that the final Constitution conformed to the
Principles, the Constitutional Court was required to certify the draft final constitutional
text.24
The Constitutional Assembly adopted a final constitutional text on 8 May 1996. The
text was then submitted to the Constitutional Court for certification. The court’s task
was an unprecedented and extraordinary exercise of judicial review. The Constitutional
Assembly was the pinnacle of the country’s new democratic institutions, and yet the
certification provisions empowered an unelected Constitutional Court to pronounce on
the validity of its efforts with reference to a set of principles formulated by unelected
negotiators. In September 1996 the court delivered its judgment, refusing to certify the
text.25 The court held, inter alia, that the provisions of the draft constitution relating to
provincial powers, local government, entrenchment of the Bill of Rights and the Public
Service Commission did not comply with the Constitutional Principles. The
Constitutional Assembly then reconvened and made several changes to the May text in
order to comply with the decision of the Constitutional Court. The amended text (passed
on 11 October 1996) was once again submitted to the Constitutional Court. This time,
22
The Constitutional Assembly was in effect the Parliament that had been elected in the 1994 elections with a
different name. According to s 68(1) of the interim Constitution, the Constitutional Assembly consisted of the
National Assembly and the Senate, sitting jointly. The text of the final Constitution had to be adopted by a
two-thirds majority of the Constitutional Assembly; in the event, the actual majority voting in favour of the
Constitution was 86 per cent. The Constitutional Assembly made concerted attempts to involve the public in the
constitution-writing exercise and to avoid the charge that had been levelled at the interim Constitution—that it
was an ‘elite pact’. These included a vast publicity exercise, public meetings held around the country and a series
of workshops designed to engage the public in debate on controversial issues. The success of the effort can be
measured by the fact that even before the publication of the first draft of the final constitution for public
comment, the Constitutional Assembly had received over two million submissions from private individuals and
organisations. But in spite of the overwhelming public interest in the process of drafting of the Constitution it is
unclear to what extent the public submissions influenced the final outcome which, on politically controversial
issues at least, was often the result of deal-making between the principal political parties.
23
The Principles were contained in Schedule 4 and their operation was governed by Chapter 5 of the interim
Constitution, which governed the process of drafting and adopting the final Constitution.
24
Section 72(1) of the interim Constitution.
25
First Certification judgment (note 17 above).
6
Introduction to the Constitution and the Bill of Rights 1.2–1.3
the court found the text to be consistent with the Constitutional Principles.26 The
Constitution was signed into law by President Nelson Mandela at Sharpeville on
10 December 1996. It came into effect on 4 February 1997, bringing to a close a long
and bitter struggle to establish constitutional democracy in South Africa.
The 34 Constitutional Principles were a framework for the creation of a democratic
state with a supreme constitution in which the fundamental rights and freedoms of all
citizens are protected.27 What is the status of the Principles now that the certification
process has been completed? According to the Constitutional Court, once the draft final
constitution was certified ‘that [was] the end of the matter and compliance or
non-compliance thereof with the . . . [Constitutional Principles] can never be raised,
again in any court of law, including [the Constitutional Court]’.28 This means that it is
not possible to object to amendments of the 1996 Constitution on the grounds that the
amended text no longer complies with the Constitutional Principles.29 The Principles do
retain a limited use as guidelines for interpreting the Constitution. In the certification
proceedings, where more than one meaning could be ascribed to a provision of the
constitutional text, the Constitutional Court adopted the interpretation that was
consistent with the Constitutional Principles. The court stated that in future ‘a court
should approach the meaning of the relevant provision of the . . . [Constitution] on the
basis that the meaning assigned to it by the Constitutional Court in the certification
process is its correct interpretation and should not be departed from save in the most
compelling circumstances’.30
1.3 BASIC PRINCIPLES OF THE NEW CONSTITUTIONAL ORDER

In this section we describe the basic principles which underlie the new constitutional
order. They are constitutionalism; the rule of law, democracy and accountability;
separation of powers and checks and balances; co-operative government and devolution
of power. Some of the basic principles are expressly entrenched in the text of the
Constitution,31 while others—such as constitutionalism and separation of powers—are
implicit in the text. The principles nevertheless are all justiciable in the sense that any
law or conduct inconsistent with them may be declared invalid. But the basic principles
do more work than this. They tie the provisions of the Constitution together and shape
them into a framework that defines the new constitutional order. The basic principles
therefore influence the interpretation of many other provisions of the Constitution,
including the provisions of the Bill of Rights which must be interpreted consistently
with them. The Constitution, in turn, shapes the ordinary law and must inform the way
26
Certification of the Amended Text of the Constitution of the Republic of South Africa, 1996 (Second
Certification judgment) 1997 (2) SA 97 (CC) .
27
First Certification judgment (note 17 above) [34].
28
Ibid [18].
29
Suppose that Parliament, following the procedures for amending the Constitution set out in s 74, were to
repeal the Bill of Rights. The upshot of the Constitutional Court’s holding is that one could not argue that the
amended Constitution did not comply with CP II (which required the final Constitution to have a justiciable Bill
of Rights). There is, however, a possibility that such an amendment may be unconstitutional for other reasons.
See 1.3 immediately below.
30
First Certification judgment (note 17 above) [43].
31
Particularly in s 1, which lists, inter alia, human dignity, equality and the advancement of human rights and
freedoms; non-racialism and non-sexism; democracy; supremacy of the Constitution and the rule of law as the
values on which the state is founded.
7
legislation is drafted by the legislatures and interpreted by the courts and the way the
courts develop the common law.
While they provide the blueprint for the new constitutional order, the basic principles
must be sparingly invoked by courts when resolving legal disputes. This is because they
are abstract foundational norms, informing the interpretation of the Constitution and the
law but only directly relied on when the more detailed provisions run out.32 Immediate,
direct reliance on the basic principles would therefore invert the correct order of inquiry.
As a rule, a specific provision must be applied before a general provision.33 The reason
for this is not that the basic principles are not justiciable. They are. The reason is rather
that it would be contrary to some of the basic principles themselves (most clearly
democracy and the doctrine of separation of powers) if the courts were to disregard the
concretisation of these abstract principles in specific constitutional provisions.
(a) Constitutionalism
Put at its simplest, constitutionalism is the theory of constitutional law. In its modern
form, constitutionalism is a body of theoretical prescriptions. It prescribes what a
constitution and constitutional law should do, as opposed to simply describing what a
particular constitution does. The particular version of constitutionalism that informs the
South African Constitution prescribes that a constitution must structure and constrain
(ie, limit) state power. The constitution must ensure that the state has enough power to
govern, but at the same time the state’s power must be limited by the constitution to
ensure that it does not violate the law or the human rights of its citizens.
The essence of the doctrine is that the power of the state should be defined and limited
by law to protect the interests of society. Constitutionalism is a way of ensuring limited
government as opposed to the arbitrary rule of an autocracy or a dictatorship.
The principle of limitation applies in two ways: first, in restricting the range of things
that the various organs of state can do (their competence), and secondly, in prescribing
the procedures they must follow in doing those things within their competence. In other
words, only certain institutions may exercise certain forms of power, and may only do
so if specific procedures are followed. For example, in terms of the 1996 Constitution
only Parliament may legislate in the area of higher education and may only do so if the
‘manner and form’ provisions of the Constitution (ie, provisions dealing with majorities,
number of readings, publication, signature by the President, etc) are observed. Second,
32
In this regard the Constitutional Court has referred to the following observation made about the US
Constitution: ‘What counts is not any abstract theory of separation of powers, but the actual separation of powers
“operationally defined by the Constitution”. Therefore, where constitutional text is informative with respect to a
separation of powers issue, it is important not to leap over that text in favor of abstract principles that one might
wish to see embodied in our regime of separated powers, but that might not in fact have found their way into our
Constitution’s structure.’ L Tribe American Constitutional Law vol 1 3 ed (2000), 127 cited in Van Rooyen v S
2002 (5) SA 246 (CC) [34].
33
See Minister of Home Affairs v National Institute for Crime Prevention and the Re-integration of Offenders
(NICRO) 2005 (3) SA 280 (CC) [20]–[25] (challenge to the constitutionality of legislation disenfranchising
prisoners must be challenged as a violation of the right to vote in the Bill of Rights and not s 1(d)). This can be
taken to be an application of the principle of subsidiarity: reliance on specific norms should precede reliance on
more general norms. See Mazibuko v City of Johannesburg 2010 (4) SA 1 (CC) [73]. For discussion of the wider
and contested concept of ‘constitutional subsidiarity’, see L du Plessis ‘‘‘Subsidiarity”: What’s In the Name for
Constitutional Interpretation and Adjudication’ (2006) 17 Stell LR 207; AJ van der Walt ‘Normative Pluralism
and Anarchy’ (2008) 1 Constitutional Court Review 77; K Klare ‘Legal Subsidiarity and Constitutional Rights’
(2008) 1 Constitutional Court Review 129.
8
principally through the operation of a Bill of Rights, substantive limitations are

imposed. The state may not use its power in such a way as to violate any of a list of
fundamental rights and has a corresponding duty to use its power to protect and promote
the rights. But neither of these limitations on state power will be effective without three
associated principles of law: constitutional supremacy, justiciability and entrenchment.
The first principle, constitutional supremacy, dictates that the rules and principles of
the Constitution are binding on all branches of the state and have priority over any other
rules made by the government, the legislatures or the courts. Any law or conduct that is
not in accordance with the Constitution, either for procedural or substantive reasons,
will therefore not have the force of law.34 Section 2 of the Constitution gives expression
to the principle of constitutional supremacy. It states that the ‘Constitution is the
supreme law of the Republic; law or conduct inconsistent with it is invalid, and the
obligations imposed by it must be fulfilled.’35 Section 8 provides that the Bill of Rights
has supremacy over all forms of law and that the Bill of Rights binds all branches of the
state in addition to, in certain circumstances, private individuals. These provisions are
discussed in Chapter 3 below.
Constitutional supremacy would mean little if the provisions of the Constitution were
not justiciable. For a supreme constitution to be effective the judiciary must have the
power to enforce it. Section 172 provides that, provided that it has the jurisdiction to do
so, a court ‘must declare that any law or conduct that is inconsistent with the
Constitution is invalid to the extent of its inconsistency’. Court orders must be obeyed
by the other branches of the state: according to s 165(5) an ‘order or decision issued by
a court binds all persons to whom and organs of state to which it applies’.
When the court uses its powers of judicial review to strike down, for example, an Act
of Parliament it is arguable that in so doing it ‘thwarts the will of the . . . people’.36
Should the courts have so much power? Just as the Bill of Rights has greatly increased
the power of the courts, the new Constitution has given the other branches of the state a
great deal more legitimacy than they had in the past. Under the old regime, the racially
exclusive Parliament and executive were anything except democratic institutions. In
such a context it was easy to justify calls for a Bill of Rights and calls to give the courts
the power to uphold human rights by striking down government decisions and
parliamentary legislation.37 In the new constitutional system, the legislature and
executive are democratic. Why should courts and the unelected judges who staff them
have the power to strike down the decisions of a democratic legislature and a democratic
and representative government?38
34
Executive Council of the Western Cape Legislature v President of the Republic of South Africa 1995 (4) SA
877 (CC) [62].
35
See also s 237: ‘All constitutional obligations must be performed diligently and without delay.’
36
A Bickel The Least Dangerous Branch (1962) 16–17. The apparent tension between the power of courts
under the Bill of Rights and an understanding of democracy as the rule of the majority is starkly illustrated by the
decision of the Constitutional Court to invalidate the death penalty in the face of overwhelming public opinion
supporting its retention: S v Makwanyane 1995 (3) SA 391 (CC).
37
See, for example, JD van der Vyver ‘Parliamentary Sovereignty, Fundamental Freedoms and a Bill of
Rights’ (1982) 99 SALJ 557, 583: South Africa requires a bill of rights ‘designed to safeguard the fundamental
rights and freedoms of the subject by restricting the competence of persons in authority to curtail those rights and
freedoms by means of legislative or administrative interference’.
38
These arguments have considerable weight in countries where Parliamentary sovereignty remains a
fundamental and valued constitutional doctrine. These countries (for example, Britain and New Zealand) have
9
The idea of constitutionalism provides an answer to this argument. Democracy is not

simply ‘the rule of the people but always the rule of the people within certain
predetermined channels, according to certain prearranged procedures’.39 From this
perspective, the pre-commitment to certain procedural and substantive constraints on the
power of the majority that are inherent in constitutionalism make democracy stronger,
not weaker. The new Constitution is a democratic pre-commitment to a government that
is constrained by certain rules, including the rule that a decision of the majority may not
violate the fundamental rights of an individual.
The fact that the provisions of the Constitution are justiciable does not mean that the
courts are the only way to enforce them. The Constitution is not only enforced through
litigation but through a number of other democratic means. The principle of democracy
means that citizens are entitled to lobby and to pressurise the government to give effect
to their rights. The importance of a free press in ensuring that the government keeps to
its commitments and that it does not abuse its powers must not be underestimated.
Moreover, chapter 9 of the Constitution creates a number of ‘State Institutions
Supporting Constitutional Democracy’. Of these, the Human Rights Commission, the
Public Protector, the Commission for Gender Equality, the Commission for the
Promotion and Protection of the Rights of Cultural, Religious and Linguistic
Communities have important roles to play in the protection and enforcement of human
rights.
The third principle, entrenchment, prevents Parliament from amending the
Constitution without following special procedures and without the support of special
majorities. Section 74 deals with amendment. The manner and form requirements for
amending the Constitution are complex, since some of the provisions are more securely
entrenched than others. Essentially, while most of the Constitution may be amended by
a two-thirds majority of the National Assembly, an amendment of the Bill of Rights
must also be passed by six provinces in the National Council of Provinces.40
(b) The rule of law: the principle of legality and the prohibition of
arbitrariness
The idea of constitutionalism is bolstered by the specific entrenchment of the rule of law
in the founding provisions, s 1 of the Constitution. As originally conceived by the
English constitutional lawyer AV Dicey more than a century ago, the purpose of the rule
of law was to protect basic individual rights by requiring the government to act in
accordance with pre-announced, clear and general rules that are enforced by impartial
courts in accordance with fair procedures.41 Put at its simplest, the rule of law requires
state institutions to act in accordance with the law. This means two things. The first is
that the various organs of state (no less than anyone else in the country) must obey the
sought to reconcile parliamentary sovereignty with judicial protection of rights by introducing bills of rights that
do not give the courts the power to invalidate legislation.
39
S Holmes ‘Precommitment and the Paradox of Democracy’ in J Elster & R Slagstad (eds) Constitutionalism
and Democracy (1988) 231.
40
The differences do not mean that some constitutional provisions have a higher status than others, but simply
that a more onerous manner and form is prescribed for some amendments than for others. See, generally, Currie
& De Waal New Constitutional Law ch 4.
41
AV Dicey An Introduction to the Study of Laws of the Constitution (note 5 above) xcvi–cli.
10
law.42 The second is that the state cannot exercise power over anyone unless the law
permits it to do so. This means that there must be a law authorising everything the state
does.43 If it acts without legal authority it is acting lawlessly, something that a
constitutional democracy cannot permit.
However, in the twentieth century the meaning of the rule of law has been
considerably developed and argued about. Some have used the term to advocate respect
for civil and political rights or even social and economic rights.44 Others were less
concerned with the substance of law and argued that the essence of the rule of law is to
be found in the ‘principle of legality’, which requires decisions to be made by the
application of known and general principles of law.45 To complicate matters even
further, notions comparable to the rule of law, but with a different content or emphasis,
were developed in countries such as Germany (‘constitutional state’ or Rechtsstaat)46
and the United States (‘due process of law’).
In a number of cases, the Constitutional Court has made decisive direct use of the
principle, developing from it a general requirement that all law and state conduct must
be rationally related to a legitimate government purpose.47 The seminal statement on
this requirement is found in the Pharmaceutical Manufacturers decision.48 The court
had to consider the basis on which the exercise by the President of a power granted by
42
The point was forcefully made by the Zimbabwean Supreme Court in Commercial Farmers Union v
Minister of Lands, Agriculture and Resettlement, Zimbabwe 2001 (2) SA 925 (ZS). In response to an argument
that the issues of land redistribution and the rule of law ‘must be looked at from a political point of view’, the
court stated: ‘Of course, it is fundamentally true that the land issue is a political question. It is equally true that
the political method of resolving that question is by enacting laws. The Government has done so. It has enacted,
and amended, the Land Acquisition Act. It has then failed to obey its own law. That is the point at which, with
respect, the Attorney-General and the Commissioner have gone astray. The Courts are doing no more than to
insist that the State complies with the law. The procedures under the Land Acquisition Act have been flouted. The
Act was not made by the Courts. It was made by the State’.
In Minister of Public Works v Kyalami Ridge Environmental Association 2001 (3) SA 1151 (CC) [87] the court
questioned but did not decide whether the common-law presumption of interpretation that the state is not bound
by its own enactments, remains valid. See in this regard, L du Plessis The Re-interpretation of Statutes (2002)
174 (arguing that the presumption is inconsistent with the principle of legality).
43
Minister for Justice and Constitutional Development v Chonco 2010 (4) SA 82 (CC) [27]; Kyalami Ridge
Environmental Association (note 42 above) [35], but holding further at [40]ff that if the state owns property it has
the same rights, powers and freedoms as any other owner, including the power to make its land available to flood
victims unless this was prohibited by law.
44
A Matthews Law, Order and Liberty in South Africa (1971) and Freedom State Security and The Rule of
Law (1986) emphasised the protection of basic civil rights. The International Commission of Jurists emerged as
the main proponent of including social and economic rights.
45
See for example, B Beinart ‘The Rule of Law’ (1962) Acta Juridica 99.
46
For further discussion of the meaning of the constitutional state principle, see D van Wyk ‘Suid-Afrika en
die Regstaatidee’ 1980 TSAR 152; L Blaau ‘The Rechtsstaats Idea Compared With the Rule of Law as a Paradigm
for Protection of Rights’ (1990) 107 SALJ 76; K Stern ‘A Society Based on the Rule of Law and Social Justice’
(1990) 107 SALJ 80; J de Waal ‘A Comparative Analysis of the Provisions of German Origin in the Bill of
Rights’ (1995) 11 SAJHR 1. The preamble to the interim Constitution spoke of a ‘constitutional state’ (Afrikaans
‘regstaat’). Ackermann J held that arbitrariness is dissonant with this concept in S v Makwanyane (note 36 above)
[156]. Despite the fact that the 1996 Constitution makes no mention of ‘a constitutional state’, Ackermann J
referred to the concept again in De Lange v Smuts NO 1998 (3) SA 785 (CC) [31] where he stated that ‘In a
constitutional democratic state, which ours now certainly is, and under the rule of law (to the extent that this
principle is not entirely subsumed under the concept of the constitutional State) citizens as well as non-citizens
are entitled to rely upon the State for the protection and enforcement of their civil claims against debtors.’
47
See Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council 1999 (1) SA
374 (CC); New National Party v Government of the Republic of South Africa 1999 (3) SA 191 (CC); President of
the Republic of South Africa v South African Rugby Football Union 2000 (1) SA 1 (CC).
48
Pharmaceutical Manufacturers Association of SA: In re Ex parte President of the Republic of South Africa
2000 (2) SA 674 (CC).
11
an Act of Parliament to bring the Act into operation was constitutionally reviewable.
The power, it was held, though derived from legislation and close to the administrative
process, was not administrative action.49 Instead, the power that was given to the
President lay between the law-making process and the process of administration of the
legislation. The exercise of the power required a political judgment as to when the
legislation should be brought into force, a decision that is necessarily antecedent to the
implementation of the legislation which comes into force only when the power is
exercised. Although not administrative action and therefore not subject to the
administrative justice right in the Bill of Rights, the President’s conduct was an exercise
of public power which had to be carried out lawfully and consistently with the
provisions of the Constitution.50
What constraints does the Constitution place on the exercise of public power?
According to the Constitutional Court,
it is a requirement of the rule of law that the exercise of public power by the executive and
other functionaries should not be arbitrary. Decisions must be rationally related to the
purpose for which the power was given, otherwise they are in effect arbitrary and
inconsistent with this requirement. It follows that in order to pass constitutional scrutiny the
exercise of public power by the executive and other functionaries must, at least, comply with
this requirement. If it does not, it falls short of the standards demanded by our Constitution
for such action.51
The court went on to hold that the President’s decision to bring an Act into operation
mistakenly (on the basis of erroneous advice that secondary legislation necessary for the
proper operation of the Act had been prepared) was not objectively rational and was
therefore invalid.52 Though clearly an important interpretation of the requirements of the
rule of law, the sequence of analysis followed in the decision bears emphasising. The
court did not reach the rule of law until it had decided that the President’s conduct was
not administrative action and therefore not subject to the specific requirements of the
administrative justice right. A norm of such generality and abstraction as the rule of law
should not be directly applied until norms of greater specificity have been exhausted.53
The rule of law therefore means more than the value-neutral principle of legality.
It also has implications for the content of law and government conduct. In this
regard it has both procedural and substantive components. The procedural component
forbids arbitrary decision-making. Not only the executive, but Parliament itself may
not act capriciously or arbitrarily.54 This is why, for example, the rule of law is
violated when a non-judicial officer is given the power to order someone to be
detained: lack of independence may result in arbitrary decision-making.55 It also
49
Ibid [79]. On ‘administrative action’ and the right to administrative justice, see Chapter 29 below.
50
Ibid [79].
51
Ibid [85].
52
Ibid [89].
53
This makes problematic the direct resort to s 1 to avoid difficulties of application of the definition of
administrative action in the Promotion of Administrative Justice Act 3 of 2000. This is exemplified by Albutt v
Centre for the Study of Violence and Reconciliation 2010 (3) SA 293 (CC) [79]ff. See, further, the discussion at
para 29.8 in Chapter 29 below.
54
New National Party (note 47 above) [19].
55
In De Lange v Smuts NO (note 46 above) the Constitutional Court invalidated s 66(3) of the Insolvency Act
24 of 1936, which provided that an officer presiding at a creditors’ meeting may order the detention of a person
who fails to co-operate. The presiding officers were often from the Master’s office. Ackermann J remarked at
[59]: ‘officers in the public service—in the executive branch of the State—. . . do not enjoy the judicial
12
explains why there must be a rational relationship between a scheme Parliament

adopts and the achievement of a legitimate governmental purpose.56 The absence of
a rational relationship indicates that the legislation is arbitrary, which is inconsistent
with the rule of law.57
More recent decisions have inflated the concept still further to include a
requirement of procedural fairness. In Albutt, the Constitutional Court held that
procedural fairness was required as a matter of rationality, ie that it would be
irrational to take the decision in question (entailing the grant of a Presidential
pardon) without hearing both sides.58 This established that the principle of legality
may demand procedural fairness in an appropriate case.59 More recently, the
Supreme Court of Appeal held that the Judicial Service Commission had to give
reasons for non-administrative action if properly called upon to do so, particularly
since its conduct would otherwise be effectively immune to a challenge based on
rationality.60
The substantive component dictates that the government must respect the
individual’s basic rights. It is not clear what kinds of basic rights will qualify for
protection under the rule of law. Respect for human dignity, equality and freedom
are repeatedly emphasised in the Bill of Rights.61 It seems logical that these ought
also to be the rights protected by the rule of law. The inclusion of the rule of law in
the founding provisions therefore super-entrenches a ‘mini-constitution’.62
As has been argued above, the specific provisions that concretise, elaborate on and
implement the rule of law must be applied in legal disputes before the general norm
is invoked. This is an application of the principle of subsidiarity. There are many
such provisions in the Bill of Rights. For example, as far as arbitrariness is
concerned, s 9(1) requires differentiation to be rationally connected to a legitimate
government purpose.63 In so far as a law differentiates, this provision must therefore
be applied before a court considers the issue of a violation of the rule of law.
Similarly, if conduct is administrative action, it is subject indirectly to the
administrative action right in the Bill of Rights and directly to the legislation giving
effect to that right and only in the last instance to the abstract principle of the rule of
law in the Constitution.64 Both the right and the legislation prohibit arbitrary
independence which is foundational to and indispensable for the discharge of the judicial function in a
constitutional democracy based on the rule of law’.
56
See for example Law Society of South Africa v Minister for Transport 2011 (1) SA 400 (CC); Poverty
Alleviation Network v President of the Republic of South Africa 2010 (6) BCLR 520 (CC).
57
58
Note 53 above [69], [72].
59
The Albutt ruling, which appears dramatically to extend the scope of the legality doctrine, was however,
glossed as follows by the court in a subsequent decision: ‘The rule that executive decisions may be set aside only
if they are irrational and may not ordinarily be set aside because they are merely unreasonable or procedurally
unfair has been adopted precisely to ensure that the principle of the separation of powers is respected and given
full effect’. Democratic Alliance v President of the Republic of South Africa 2013 (1) SA 248 (CC) [41].
60
Judicial Service Commission v Cape Bar Council 2013 (1) SA 170 (SCA) [44].
61
See ss 7(1), 36 and 39(1).
62
Super-entrenches because amendment of s 1 requires higher majorities than any other constitutional
amendment (a 75 per cent majority of the members of the National Assembly and six provinces in the National
Council of Provinces). See s 74(1).
63
See Chapter 9 below.
64
Section 33 and the Promotion of Administrative Justice Act 3 of 2000. It is worth noting that delegated
legislation is also administrative action as defined in the Act and therefore subject to legality review under the Act
rather than the Constitution. See City of Tshwane Metropolitan Municipality v Cable City (Pty) Ltd 2010 (3) SA
13
decision-making and must be applied to test the validity of administrative action

before any resort is made to the abstract principle of the rule of law.
A further implication of the rule of law is that laws must be clear and accessible.
A law that does not indicate with reasonable certainty to those who are bound by it
what is required of them so that they may regulate their conduct accordingly is
vague and accordingly unconstitutional and invalid.65
(c) Democracy and accountability

Apart from observing the rule of law, the Constitution also requires the government to
respect the principle of democracy. At least since the French and American revolutions
it has been accepted that no person or institution has a divine right to govern others. It
follows from this that government can only be legitimate in so far as it rests on the
consent of the governed. As the preamble to the Constitution puts it, government must
be ‘based on the will of the people’. In a democratic system of government therefore, the
relationship between the government and the people is not simply based on power.
Instead the consent of the governed is the defining characteristic of the relationship.
The principle of democracy is referred to at several places in the Constitution.66
Indeed, s 1 of the Constitution provides that the Republic of South Africa is a sovereign,
democratic state founded on, amongst others, the values of ‘universal adult suffrage, a
national common voters roll, regular elections and a multi-party system of democratic
government, to ensure accountability, responsiveness and openness’.
Like any other constitutional norm, law or conduct that is inconsistent with the
principle of democracy will be invalid.67 There is, however, no definition of democracy
in the Constitution nor an exhaustive list of the requirements the principle imposes.68
Democracy is a contested concept, there is no general agreement on what the principle
means and entails.69 In so far as there is agreement, it is on abstract and general
statements of the type we made above, such as that the ‘consent of the governed is the
defining characteristic of the relationship between the government and the people’ or
589 (SCA) [10]; Minister of Health v New Clicks South Africa (Pty) Ltd 2006 (2) SA 311 (CC) [113]. See, further,
Chapter 29 below.
65
Affordable Medicines Trust v Minister of Health 2006 (3) SA 247 (CC) [108]; Minister of Health v New
Clicks South Africa (Pty) Ltd 2006 (2) SA 311 (CC) [246]; SA Liquor Traders’ Association v Gauteng Liquor
Board 2009 (1) SA 565 (CC) [27]–[28]. A robust approach is required: National Credit Regulator v Opperman
2013 (2) SA 1 (CC) [51] (inaccuracy of language does not necessarily rise to a constitutionally fatal level of
vagueness; provision should be utterly meaningless and unworkable and there should be nothing in the rest of
that Act that can assist in giving a meaning to the provision). Similary, the rule of law principle underlies the
prohibition of retrospective legislation: Van Vuuren v Minister of Correctional Services 2011 (10) BCLR 1051
(CC) [60]; Masiya v Director of Public Prosecutions, Pretoria 2007 (5) SA 30 (CC) [52].
66
See the preamble, and ss 1, 7, 36, 39, 57, 59, 61, 70, 72, 116, 118, 152, 160, 195, 234, 236 and the whole of
Chapter 9.
67
As provided by the supremacy clause, s 2. See President of the Republic of South Africa v United
Democratic Movement 2003 (1) SA 472 (CC) [26] (‘Laws . . . which undermine multi-party democracy, will be
invalid’). Unlike many provisions in the Bill of Rights, the remainder of the Constitution does not impose
obligations on private persons and institutions, but only on the state. In other words the principle of democracy
has no horizontal operation. Section 1, for example, describes the Republic as a democratic state. The
Constitution therefore does not require private persons and institutions to act in a democratic manner.
68
The Constitutional Court defined the idea of a ‘multi-party democracy’ as follows in the United Democratic
Movement case (ibid) [26]: ‘A multi-party democracy contemplates a political order in which it is permissible for
different political groups to organise, promote their views through public debate and participate in free and fair
elections. These activities may be subjected to reasonable regulation compatible with an open and democratic
society. Laws which go beyond that, and which undermine multi-party democracy, will be invalid’.
69
See generally D Held Models of Democracy (2006).
14
that ‘government must be based on the will of the people’.70 Such broad formulations
are of course hardly capable of setting a standard to test the constitutional validity of
particular law and conduct.71
The Constitution recognises three forms of democracy: representative democracy,
participatory democracy and direct democracy. The Constitution is primarily aimed at
establishing and safeguarding a representative democracy that has participatory
elements.72 The democratic government contemplated by the Constitution is one that is
accountable, responsive and transparent, and that makes provision for public
participation in the law-making processes.73
The anchor of this representative democracy is found in the political rights
entrenched in the Bill of Rights. The Constitution and the legislation that implements it,
further provide for an electoral system and contain provisions dealing with the mandate
of representatives. In the system of representative democracy established by the
Constitution, political parties occupy centre stage and play a vital part in facilitating the
exercise of political rights.74 However, despite their dominant role in a representative
democracy, the activities of political parties remain largely unregulated.75
The opportunities for participation in the executive decision-making are less clearly
developed. The s 33 right to procedurally fair administrative action principally requires
that a person is given a hearing before decisions are taken affecting his or her rights.
Outside the area of administrative action, the problem is that there is no specific
constitutional obligation on the executive to consult affected parties before it makes
decisions.76 Even more uncertain, is the extent to which persons may participate in
judicial decision-making that affects them. The Rules of the Constitutional Court permit
a person with an interest in a matter before the court who is not a party in the matter to
70
This phrase is used in the preamble.
71
See, for example, the unsuccessful attempts to invoke the principle of democracy in the following cases:
Certification of the Constitution of the Western Cape, 1997 1997 (4) SA 795 (CC) [62] (the presence of two
unelected members in a 14-member provincial cabinet is not inconsistent with the principles of democratic
governance entrenched in s 1(d)); MEC for Development Planning and Local Government, Gauteng v
Democratic Party 1998 (4) SA 1157 (CC) [56]–[57] (a deadlock-breaking mechanism which allowed the MEC to
approve the budget of a municipal council when the requisite two-thirds majority could not be secured, did not
violate the principle of democratic government); United Democratic Movement (note 67 above) (constitutional
amendments and associated legislation permitting members of legislatures to ‘cross the floor’ and join other
parties not inconsistent with the principle of a ‘multi-party system of democratic government’ in s 1.)
72
Doctors for Life (note 9 above) [111]. The court held that the requirements of ss 59 and 72 of the
Constitution to ‘facilitate public involvement’ in the processes of Parliament gave effect to a right of political
participation grounded in the principle of democracy in s 1 and in the political rights in s 19. The right imposed a
duty on Parliament to take steps to provide a reasonable opportunity for public participation in law-making and to
take measures to ensure people are able to take advantage of the opportunities provided [119]. A failure by
Parliament to give effect to these duties during the process of enactment of legislation rendered the legislation
unconstitutional. In Merafong Demarcation Forum v President of the Republic of South Africa 2008 (5) SA 171
(CC), the court extended the principle to the enactment of constitutional amendments. Similar provisions
requiring public involvement apply to provincial legislatures (s 116(1) and s 118) and municipal councils
(s 160(7)).
The right to challenge the procedures by which legislation was adopted is, however, subject to the constraint
that it must be exercised timeously. Legislation may not be challenged on the ground of non-compliance with
s 59 or s 72 many years after the event by those who had no interest in making representations to Parliament at
the time the legislation was enacted. See Doctors for Life [219]; President of the Republic of South Africa
v Quagliani 2009 (2) SA 466 (CC) [30].
73
Ibid [116].
74
Ramakatsa v Magashule 2013 (2) BCLR 202 (CC) [65].
75
See, further, Chapter 19 below.
76
15
be admitted as an amicus curiae.77 However, in Fose v Minister of Safety the

Constitutional Court held that, in addition to having an interest, the submissions of the
amicus curiae must be relevant to the proceedings and must raise new contentions which
may be useful to the court.78 The rules permitting amicus curiae access to the court are
not viewed as forming part of the establishment of a participatory democracy. In our
view, any submission by a group of people who may be affected by the court’s decision
must be welcomed, particularly if it will place the court in a better position to determine
the consequences of its decision.79
Direct democracy serves as a counterweight to the importance of political parties in a
representative democracy. It further serves to balance the influence exerted by interest
groups through the possibilities created by participatory democracy. Direct democracy
is therefore of particular importance for those individuals and groups whose interests are
neglected by the political parties, or who find it difficult to make use of the possibilities
for participation. Section 17 recognises the importance of direct democracy by
safeguarding the right to assembly, demonstration, picket and petition. Section 84(2)(g)
makes provision for the President to call a national referendum while s 127 provides for
the calling of a provincial referendum. In a referendum the people are asked to make a
decision directly. It is particularly useful to hold a referendum when the majority party is
internally divided on an issue. An example might be the decriminalisation of
prostitution. In such cases no mandate could have been given to the party when elected
by the people. It should be noted however that it is dangerous to allow the public to vote
on issues that may affect individuals’ fundamental rights, such as the death penalty,
abortion or gay marriage. These issues are better decided through deliberation in
representative structures.
While the principle of democracy, and the forms of democracy recognised by the
Constitution (representative, participatory and direct) may be abstract, many of the
provisions that give effect to them are specific and clear. We referred to some of these
above. For example, in respect of the representative democracy there is a requirement of
‘a national common voters’ roll’.80 Any attempt to place certain groups of the
population on a separate voters’ roll and to require them to vote for a separate legislative
body, as happened during the Apartheid era, would therefore not only violate the
principle of a representative democracy, but also the specific provisions of the
Constitution. To the extent that other, more specific provisions of the Constitution
concretise the principle of democracy, its application may be considerably less difficult.
As we stated above, the specific provisions must be applied in legal disputes before
resorting to the general principles that underpin them.
The Constitution goes further than providing for representative, participatory and
direct forms of democracy. It not only provides for the ‘formulation of the will of the
people’, but also requires government to ‘respond’ to the will of the people. References
to the principle of democracy in the Constitution are therefore often followed by
77
Rule 9. See in respect of the High Court, Uniform Rule 16A.
78
Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) [9].
79
Compare the Constitutional Court’s approach in Ferreira v Levin NO 1996 (1) SA 984 (CC) [4] where
written memoranda were invited and accepted from a number of professional bodies whose work could have
been affected by the decision.
80
See s 1(d) of the Constitution.
16
references to the ideas of openness, responsiveness and accountability.81 These ideas

mean that government institutions must be accessible and that government officials must
respond to the people they govern. Also, the duty of accountability requires that
government must explain its laws and actions if required to do so.82 One way of defining
democracy is that it is government by explanation rather than government by force. As
Etienne Mureinik memorably put it, the new Constitution promotes a ‘culture of
justification’, ‘a culture in which every exercise of power is expected to be justified; in
which the leadership given by government rests on the cogency of the case offered in
defence of its decisions, not the fear inspired by the force at its command. The new order
must be a community built on persuasion, not coercion’.83
As with the principle of democracy, some of the most important specific provisions
flowing from the principle of accountability are found in the Bill of Rights. Most
prominent are the right to access to information in s 32 and the right to just
administrative action in s 33, particularly the right to written reasons and to reasonable
administrative action.84
Further, members of Cabinet are accountable collectively and individually to
Parliament85 and members of the provincial executive councils are accountable to their
respective provincial legislatures.86 The principles of accountability, openness and
responsiveness also form part of the ‘basic values and principles governing public
administration’ in South Africa.87 Multi-party parliamentary committees must have
oversight of all security services (including the police service and the defence force) to
give effect to the principles of transparency and accountability.88 Finally, national,
provincial and municipal budgetary processes must promote transparency, accountabil-
ity and the effective financial management of the economy, debt and the public sector.89
81
See eg s 1(d) where ‘a multi-party system of democratic government, to ensure accountability,
responsiveness and openness’ is entrenched as one of the founding values and the preamble (‘a democratic and
open society’).
82
See University of the Western Cape v Member of Executive Committee for Health and Social Services 1998
(3) SA 124 (C) 137B–C where Hlophe J held that transparency and accountability required the government to
advertise public service posts in order to allow suitably qualified persons from outside the service to apply for
these posts.
83
Mureinik ‘A Bridge to Where’? 32.
84
See Eastern Metropolitan Substructure v Peter Klein Investments (Pty) Ltd 2001 (4) SA 661 (W) [37] (the
‘culture of justification’ brought into being by the Constitution and the right to reasonable administrative action in
s 33 requires modification of the general rule that a defence of estoppel by representation is not available against
the unlawful actions of public authorities.)
85
See s 92(2).
86
See s 133(2).
87
See s 195(1)(e)–(g): ‘Public administration must be governed by the democratic values and principles
enshrined in the Constitution, including people’s needs must be responded to, and the public must be encouraged
to participate in policy-making. Public administration must be accountable. Transparency must be fostered by
providing the public with timely, accessible and accurate information.’
88
Section 199(8).
89
Section 215(1). In terms of s 216(1), national legislation must further establish a national treasury and
prescribe measures to ensure transparency and expenditure control. In terms of s 217(1), state contracts for goods
and services must be in accordance with a system that is fair, equitable, transparent, competitive and
cost-effective.
17
(d) Separation of powers and checks and balances

Constitutional Principle VI required the 1996 Constitution to have
a separation of power between the legislature, the executive and the judiciary, with
appropriate checks and balances to ensure accountability, responsiveness and openness.
Therefore, although there is no express reference to these principles in the 1996
Constitution, we know that both separation of powers and checks and balances have
been built into the text. In South African Association of Personal Injury Lawyers v
Heath90 the Constitutional Court held that there ‘can be no doubt that our Constitution
provides for such a separation [of powers], and that laws inconsistent with what the
Constitution requires in that regard, are invalid’. Apart from pointing to Constitutional
Principle VI, the court held that the separation of powers is an unexpressed provision
that is ‘implied’ in or implicit’ to the Constitution. Its presence is based on inferences
drawn from the structure and provisions of the Constitution, rather than on an express
entrenchment of the principle.
The doctrine of separation of powers requires the functions of government to be
classified as either legislative, executive or judicial and requires each function to be
performed by separate branches of government. In other words, the functions of
making law, executing the law and resolving disputes through the application of law
should be kept separate and, in principle, they should be performed by different
institutions and persons.
The purpose of separating functions and personnel in this manner is to prevent the
excessive concentration of power in a single person or body. Some commentators
have argued that separation of powers is also desirable to promote greater
governmental efficiency.91 Others dispute this and argue that a rigid division of
powers reduces flexibility and efficiency.92 In this regard some judges of the
Constitutional Court have recognised that a delicate balance must be developed
between ‘the need, on the one hand, to control government by separating powers and
enforcing checks and balances, and, on the other, to avoid diffusing power so
completely that the government is unable to take timely measures in the public
interest’.93
A separation of functions is recognised in the Constitution. Section 43 vests the
legislative authority of the Republic in the national sphere in Parliament and in the
provincial sphere in the provincial legislatures. Sections 85 and 125 vest the
executive authority of the Republic in the President and the executive authority of
the provinces in the premiers. Section 165 vests the judicial authority in the courts.
At the local level, however, there is no clear separation. Both the executive and the
legislative authority are vested in the Municipal Council.94
The separation of functions recognised in the Constitution is not absolute. The
Constitutional Court has, for example, upheld legislation that prescribes minimum
sentences for serious offences on the basis that the legislature and the executive must
90
South African Association of Personal Injury Lawyers v Heath 2001 (1) SA 883 (CC).
91
G Carpenter ‘Strengths and Limitations of a New National Government’ in R Licht & B de Villiers South
Africa’s Crisis of Constitutional Democracy: Can the US Constitution Help? (1994) 168, 169.
92
Ibid 169.
93
Ackermann J in De Lange v Smuts NO (note 46 above) [60].
94
Section 151(2).
18
necessarily play a functional role in the process of sentencing offenders.95 It would,

however, be contrary to the rule of law and the idea of a constitutional state for
legislation to require a judicial officer to impose a punishment wholly lacking in
proportionality to the crime.96
The three different functions are also not always performed by different personnel.
As in all parliamentary systems of government, the most glaring overlap is that the
members of the executive are also members of the legislature. During the First
Certification case it was argued that the overlap resulted in a failure of the 1996
Constitution to comply with Constitutional Principle VI, which inter alia required the
final Constitution to conform to ‘a separation of powers between the legislature, the
executive and judiciary’. The Constitutional Court held that the doctrine of
separation of powers is not ‘a fixed or rigid constitutional doctrine’ and that ‘it is
given expression in many different forms and made subject to checks and balances of
many kinds’. It was also held that the overlap made the executive more directly
answerable to the elected legislature.97
The Constitutional Court aims to develop an approach to the doctrine of
separation of powers which suits the political and legal context: a ‘distinctly South
African model of separation of powers should be developed.’98 It is likely that the
independence of the judiciary will be strongly protected, but, as in other
Commonwealth countries, the courts will not insist on a strict and complete
separation of powers between the executive and the legislature.99 In general, a
flexible approach will be adopted.100
However flexible it might be, the doctrine of separation of powers has been put to
decisive use in a number of cases. In Executive Council of the Western Cape
Legislature v President of the Republic of South Africa101 the majority of the
Constitutional Court held that the ‘manner and form’ provisions of the Constitution
prevent Parliament from delegating to the executive the power to amend the
provisions of the enabling Act of Parliament. The implication of the decision is that
whenever the executive is empowered to make, amend or repeal Acts of Parliament
the doctrine of separation of functions between the legislature and the executive will
be undermined. The executive, the court in effect held, may not make this type of
law.
95
S v Dodo 2001 (3) SA 382 (CC) [22].
96
Ibid [26]. See, also, In re Constitutionality of the Mpumalanga Petitions Bill, 2000 2002 (1) SA 447 (CC)
(though usually delegated to the executive, nothing in the Constitution prevented a provincial legislature from
delegating a power to make subordinate law and to determine the date of the commencement of a statute, to the
Speaker of the legislature).
97
First Certification judgment (note 17 above) [111]. See also Executive Council of the Western Cape
Legislature (note 34 above) [55]; Certification of the Constitution of the Western Cape, 1997 (note 71 above)
[63]. In the latter case the court stated that the doctrine of separation of powers is sufficiently broad to permit not
only interdependence between the executive and legislature but also strict independence as in the democracies of
the United States of America, France and the Netherlands.
98
S v Dodo (note 95 above) [14]–[17].
99
The Constitutional Court has already shown a reluctance to interfere in disputes between the executive and
legislative branches. See, for example, Ex parte Minister of Safety and Security: In re S v Walters 2002 (4) SA
613 (CC) where the Constitutional Court expressed its dissatisfaction with the fact that the President was
delaying the coming into force of a law for reasons not contemplated by Parliament when it afforded him the
power to determine the date of commencement. The court was, however, clearly not inclined to intervene in these
circumstances.
100
Van Rooyen v S (note 32 above) [105]–[106].
101
Note 34 above.
19
The doctrine of separation of powers underlies the principle of judicial

independence: the idea that only the judicial branch of government should discharge
judicial functions and that it should do so free of interference by the other two
branches. Independence also expresses the idea that the judiciary should decide
disputes impartially and without bias. The perception of independence was the basis
for holding that a judge may not head the Special Investigations Unit into public and
private corruption and maladministration (formerly known as the Heath Unit) set up
in terms of the Special Investigating Units and Special Tribunals Act 74 of 1996.
The Constitutional Court made it clear that, in appropriate circumstances, judicial
officers can preside over commissions of enquiry. Much depends on the subject
matter of the commission and the legislation regulating the issue of search
warrants.102 However, the functions that Judge Heath was required to perform in
terms of the Act and the Presidential proclamation appointing him were far removed
from the central mission of the judiciary. They were investigations with an intrusive
quality, involved litigation on behalf of the state103 and required the judge to be
appointed to the Unit indefinitely.104 By their very nature, the court stated, such
functions were partisan in the sense that they did not permit the judge to distance
himself from the actions of the investigators. The appointment of Judge Heath as the
head of the Heath Special Investigating Unit was therefore declared to be
incompatible with the judicial office and invalid.
As with all the basic features we discuss in this chapter, the doctrine of separation
of powers is implemented by particular constitutional provisions and the ordinary
law.105 The doctrine therefore indirectly applies to the interpretation of these
provisions, including several provisions of the Bill of Rights. For example, the
Constitutional Court has held that the right to freedom of the person prevents a
non-judicial officer from ordering someone to be detained.106 The right not to be
detained without trial in s 12(1)(b) requires, according to Ackermann J, a hearing
conducted by a judicial officer in the court structure established by the 1996
Constitution.107 This issue was related to the doctrine of separation of powers in the
following way:
it suffices to say that whatever the outer boundaries of separation of powers are eventually
determined to be, the power in question here —that is the power to commit an uncooperative
witness to prison —is within the very heartland of the judicial power and therefore cannot be
exercised by non-judicial officers.108
A separation of functions and personnel would achieve little if not combined with
appropriate checks and balances. The purpose of checks and balances is to ensure that
the different branches of government control each other internally (‘checks’) and serve
102
Heath (note 90 above) [34].
103
Ibid [39]–[40].
104
Ibid [45].
105
See S v Dodo (note 95 above) [17].
106
De Lange v Smuts NO (note 46 above). The doctrine also informs the interpretation and implementation of
the socio-economic rights. See, further, Chapter 26 below.
107
Ibid [57].
108
Ibid [61]. Since Sachs J, in a separate judgment, agreed with this conclusion it was the view of the majority
of the members of the court. See [177].
20
as counterweights to the power possessed by the other branches (‘balances’).109 Simply

put, whereas the purpose of separating functions and personnel is to limit power, the
purpose of checks and balances is to make the branches of government accountable to
each other. In most democracies, the most conspicuous example of a check is the power
of the judiciary to review executive conduct and laws for compliance with the
Constitution and the Bill of Rights.110 Another important check is the role played by the
executive in the appointment of judges.111
The application of the doctrine of separation of powers and checks and balances
becomes particularly difficult when a court has to consider what its own function
should be. A court’s approach to the application, interpretation and limitation of the
Bill of Rights and particularly to remedies for the violation of the Bill of Rights may
have serious implications for the separation of powers. Since the courts make the
final determination on the scope of their own powers, they have therefore developed
several mechanisms of self-restraint, which serve to prevent them from interfering
with the functions of the other branches of government.112 For example, in
Soobramoney v Minister of Health, Kwazulu-Natal113 the Constitutional Court
refused to order the state to provide expensive dialysis treatment to keep a critically
ill patient alive. In the course of his judgment, Chaskalson P referred with approval
to English authority where it was held that ‘[d]ifficult and agonising judgments have
to be made as to how a limited budget is best allocated to the maximum advantage
109
First Certification judgment (note 17 above) [112] (checks and balances in the 1996 Constitution evidence
a concern for both the over-concentration of power and the requirement of an energetic and effective, yet
answerable, executive).
110
The lower courts lack jurisdiction to apply the Constitution directly. See Chapter 5 below. In the First
Certification judgment (note 17 above) [138], the court rejected an argument that the limited jurisdiction of the
lower courts resulted in a failure to comply with CP VII that required the judiciary to have the power and
jurisdiction to safeguard and enforce the Constitution and all fundamental rights.
111
In this regard the Constitutional Court stated in the First Certification judgment (note 17 above) [123] that
‘[a]n essential part of the separation of powers is that there be an independent judiciary. The mere fact, however,
that the executive makes or participates in the appointment of judges is not inconsistent with the doctrine of
separation of powers or with judicial independence. . . . What is crucial to the doctrine of separation of powers
and the independence of the judiciary is that the judiciary should enforce the law impartially and that it should
function independently of the legislature and the executive’. The court rejected a similar argument in respect of
the appointment of the prosecuting authority ([140]–[146]). But compare the Namibian case of Ex parte
Attorney-General, Namibia: In Re: The Constitutional Relationship between the Attorney-General and the
Prosecutor-General 1995 (8) BCLR 1070 (NmS). In this case the Namibian Supreme Court warned against the
danger of political appointees deciding on whether to prosecute and added (at 1088F) that such interference ‘is
not the product of a Rechtsstaat and is not compatible with the Grundnorm relating to the separation of powers.
It paves the way for executive domination and State despotism. It represents a denial of the cardinal values of the
Constitution’.
112
See Bel Porto School Governing Body v Premier, Western Cape 2002 (3) SA 265 (CC) [88] (the interim
Constitution did not introduce ‘substantive fairness into our law as a criterion for judging whether administrative
action is valid or not. The setting of such a standard would drag the courts into matters which according to the
separation of powers should be dealt with at a political or administrative level and not at a judicial level.’);
Masamba v Chairperson, Western Cape Regional Committee of the Immigrants Selection Board 2001 (12) BCLR
1239 (C) (separation of powers means that a court usually may not substitute its own decision for that of an
administrator); LMT Beneficiaries Forum v President of Republic of South Africa 2002 (1) BCLR 33 (T)
(declining to grant interdict preventing the President from bringing into operation an allegedly unconstitutional
Bill); President of the Republic of South Africa v United Democratic Movement 2003 (1) SA 472 (CC) (High
Court’s powers to grant interim relief preventing violation of constitutional rights before a statute is in force very
limited); Doctors for Life (note 9 above) [43]; Van Straaten v President of the Republic of South Africa 2009 (3)
SA 447 (CC) (Constitution contains clear and express provisions which preclude any court from considering the
constitutionality of a bill save in the limited circumstances referred to in ss 79 and 121 of the Constitution).
113
Soobramoney v Minister of Health (KwaZulu-Natal) 1998 (1) SA 765 (CC).
21
of the maximum number of patients. This is not a judgment which the court can
make.’114 Similar concerns inform the courts’ approach to human rights issues in
many of the decisions dealt with in this book.115 In Minister of Health v Treatment
Action Campaign (2),116 on the other hand, the court demonstrated that it will not
hesitate to issue mandatory relief, which affects policy and has manifest cost
implications, when it reaches the conclusion that the state has not performed its
constitutional obligations diligently and without delay.117
114
Ibid [30], citing R v Cambridge Health Authority, ex parte B [1995] 2 All ER 129 (CA).
115
See also the attempt by Chaskalson P to draw a distinction between judicial and legislative functions in
Ferreira v Levin NO (note 79 above) [183]: ‘In a democratic society the role of the legislature as a body reflecting
the dominant opinion should be acknowledged. It is important that we bear in mind that there are functions that
are properly the concern of the courts and others that are properly the concern of the legislature. At times these
functions may overlap. But the terrains are in the main separate, and should be kept separate.’ For Chaskalson P,
it is not the function of the court to interfere with the regulation of the economy or the distribution of resources.
116
Minister of Health v Treatment Action Campaign (2) 2002 (5) SA 721 (CC). See, in particular, [96]–[114].
117
See also National Treasury v Opposition to Urban Tolling Alliance 2012 (6) SA 223 (CC) [67] (granting of
interim interdict intruding on executive domain is unwarranted, except where there was proof of unlawfulness,
fraud or corruption).
22
Chapter Two
Structure of Bill of Rights Litigation

2.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
2.2 The stages of Bill of Rights litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
(a) Procedural issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
(i) Application and the principle of avoidance. . . . . . . . . . . . . . . . . . 24
(ii) Justiciability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
(iii) Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
(b) Substantive questions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
(i) Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
(ii) Limitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
(c) Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
2.3 Onus. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
2.4 Summary of the stages in table form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
2.1 INTRODUCTION
This book deals with the principal source of substantive constraints on public power in
the Constitution: the Bill of Rights. The Bill of Rights instructs the state to use the
power that the Constitution gives it in ways that do not violate fundamental rights and
that promote and fulfil those rights. Should it fail to comply with these instructions it
will act unconstitutionally: its actions or laws will be unlawful and invalid. Though the
Constitution as a whole is mostly concerned with state power and with law, there are a
number of provisions of the Bill of Rights that place duties on private individuals in
certain circumstances.
One of the most important principles of our law is expressed by the maxim ubi ius ubi
remedium—where there is a right there is a remedy. This means that the existence of a
legal rule implies the existence of an authority with the power to grant a remedy if that
rule is infringed. A legal rule will be deficient if there is no means of enforcing it and if
no sanction attaches to a breach of that rule. How are breaches of the rights in the Bill of
Rights remedied? Though by no means the only way to ensure that rights are upheld, our
focus in this book is on litigation to enforce the Bill of Rights directly.
Direct Bill of Rights litigation is most conveniently analysed as taking place in
distinct stages. There is an initial procedural stage, followed by a number of stages in
which issues of substance are considered.
Initially, a court hearing a Bill of Rights case will be concerned with any procedural
issues that might arise: the application of the Bill of Rights to the subject-matter of the
litigation; the justiciability of the issue to be decided (including the standing of the
applicant); the jurisdiction of the court to grant the relief claimed by the applicant.
Often, however, these procedural aspects of the case will be uncontroversial and the
23
2.1–2.2 The Bill of Rights Handbook
court can proceed directly to the substance of the case. The first step in the substantive
stage of the litigation involves interpreting the provisions in the Bill of Rights. The court
must consider, by reference to the facts of the case and to the interpretation of the Bill of
Rights, whether a right has been violated. If the court does find that a right has been
violated, it must then consider whether that violation is a justifiable limitation of the
right. Finally, if the court finds that a violation of a right is not a justifiable limitation, it
will have to consider the proper remedy to deal with the unconstitutional infringement
of a fundamental right. At each distinct stage of the litigation, the court must consider
whether the onus of proof is on the applicant or respondent.
2.2 THE STAGES OF BILL OF RIGHTS LITIGATION
(a) Procedural issues

Before a court can proceed to consider the issues of substance raised in human rights
litigation it must first consider a series of preliminary, procedural issues.
(i) Application and the principle of avoidance

Application of the Bill of Rights concerns the issues of whether and how the Bill of
Rights applies in a legal dispute. The first of these issues (whether the Bill of Rights
applies) raises four questions: who benefits from the Bill of Rights? Who is bound by
the Bill of Rights? Does the Bill of Rights apply to matters arising before its
commencement? Does the Bill of Rights apply only in the national territory or does it
have extraterritorial effect? Answering these questions involves determining the ‘reach’
or ‘scope’ of the Bill of Rights.
But application is concerned not only with whether the Bill of Rights applies, but also
with how it applies in a legal dispute. The question here is: what is the relationship
between the Bill of Rights and the principles or rules of ordinary law? The application of
the Bill of Rights is discussed in greater detail in Chapter 3 below. We argue there that
the two application issues should be resolved in the following way:
• The reach of the Bill of Rights (beneficiaries, duties, time and territory) demarcates
the types of legal disputes to which the Bill of Rights directly applies. Within this
area, the Bill of Rights overrides ordinary law and conduct that is inconsistent with
it. In addition, subject to considerations of justiciability and jurisdiction, the Bill of
Rights generates its own set of remedies. This form of application, which is geared
towards showing inconsistency between the Bill of Rights and law or conduct, is
called the direct application of the Bill of Rights.
• At the same time, the Bill of Rights contains a set of values that must be respected
whenever the common law or legislation is interpreted, developed or applied. This
form of application, which aims at creating harmony between the Bill of Rights and
ordinary law, is called the indirect application of the Bill of Rights. When indirectly
applied, the Bill of Rights does not override ordinary law nor does it generate its
own remedies. Instead, law is interpreted or developed in a way that makes it
conform to the Constitution. The special constitutional rules relating to the
procedural issues of standing and the jurisdiction of the courts are also irrelevant to
this form of application. Rather, the Bill of Rights respects the procedural rules, the
purpose and remedies of ordinary law, but demands the furtherance of its values
through the operation of ordinary law.
24
Structure of Bill of Rights Litigation 2.2
For reasons discussed fully in Chapter 3, indirect application of the Bill of Rights must
be considered before direct application. This is the result of the operation of the
principle that constitutional issues should, where possible, be avoided. The principle of
avoidance requires a court first to try to resolve a dispute by applying ordinary legal
principles, as interpreted or developed with reference to the Bill of Rights, before
applying the Bill of Rights directly to the dispute.1
An important implication of the principle of avoidance is that the special rules in
the Bill of Rights relating to the standing of litigants and the jurisdiction of the
courts (considered in Chapters 4 and 5 below) only apply when it is not possible to
give effect to the values in the Bill of Rights by applying, interpreting or developing
the ordinary law. Similarly, the constitutional remedies we consider in Chapter 8 are
only relevant when the Bill of Rights is directly applied to an issue. If it is possible
to resolve the dispute through indirect application, ordinary procedural rules and
remedies apply to the dispute.
However, in order to apply the Bill of Rights indirectly, a court must obviously
determine the effect of the provisions of the Bill of Rights. A court cannot interpret
or develop the ordinary law with reference to the values contained in the Bill of
Rights without knowing what they are. The interpretation of the Bill of Rights and
its limitation clause, considered in Chapters 6 and 7 below, therefore remain
important, even when the Bill of Rights is indirectly applied.
(ii) Justiciability
In Chapter 4 we deal with the issues of justiciability and standing. In some cases, an
applicant may lack standing to seek a remedy. In other cases, the issue may have
become moot or academic and therefore not justiciable. An issue may also be
non-justiciable because it is not yet ripe for decision by a court.
As noted above, the Bill of Rights contains special rules relating to these issues when
it is directly applied. In such cases, it demands a broader approach to standing. In cases
of indirect application, the ordinary legal rules apply.
(iii) Jurisdiction
In Chapter 5 we describe the constitutional jurisdiction of the courts and the procedures
that must be observed when the Bill of Rights is directly applied to law or conduct. In
cases of indirect application, the ordinary procedural rules apply.
These are not simply technical issues but are of paramount importance for the
protection of fundamental rights in practice. It is important to know in which forum to
challenge an alleged violation of a right, since not all courts have the same jurisdiction
in constitutional matters. If the court does not have the jurisdiction to grant the relief
claimed, it must dismiss the application, whatever its merits may be.
1
‘[W]here it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the
course which should be followed’: Nyathi v MEC for the Department of Health, Gauteng 2008 (5) SA 94 (CC)
[149]. Avoidance can be understood as an application of the wider principle of constitutional subsidiarity: the
idea that reliance norms of greater particularity should precede reliance on norms of greater generality or
abstraction. See the discussion in para 1.3(b) in Chapter 1 above.
25
(b) Substantive questions

At the substantive stage of Bill of Rights litigation, the court is concerned with the
substance of the applicant’s allegation that a right has been infringed by law or by the
conduct of the other party. The court must assess the merits of this allegation. This
assessment primarily involves the interpretation of the provisions of the Constitution in
general and the Bill of Rights in particular.
(i) Interpretation
The court must determine whether the Bill of Rights protects a particular interest of the
applicant. It must then determine whether the law that has been challenged or the
conduct of the respondent impairs that interest, thereby trespassing in an area protected
by the Bill of Rights. The principles and methods for interpreting the Bill of Rights are
set out and discussed in Chapter 6 below.
(ii) Limitation
If the court determines that a law or the conduct of the respondent impairs a fundamental
right, it must then consider whether the infringement is nevertheless a justifiable
limitation of the right in question.2 Not all laws or conduct that infringe fundamental
rights are unconstitutional. Sometimes a law may be a justifiable limitation on a
particular fundamental right. This means that although the law or conduct infringes the
right, the infringement (which is called a limitation) is justifiable. While infringing
conduct itself cannot validly limit a fundamental right, the challenged conduct may be
authorised by law. If the law passes the limitations test, the conduct it authorises will
survive a constitutional challenge. The criteria for the justifiable limitation of rights are
set out and discussed in Chapter 7 below.
(c) Remedies
Should a court find that a right has been infringed and that the infringement does not
satisfy the test for a valid limitation of a right, the question of the appropriate remedy for
the infringement arises. In Chapter 8 we discuss the types of remedies that are available.
As was outlined above, the constitutional remedies are only available when the Bill of
Rights is directly applied. In cases of indirect application, ordinary legal remedies are
used to give effect to the fundamental values in the Bill of Rights.
2.3 ONUS
The Constitutional Court has dealt with the issue of onus or burden of proof3 by dividing
the substantive stage of human rights litigation into the two further sub-stages that we
2
A court may of course focus on any one or more of the six stages. There is no need mechanically and
sequentially to consider each of the six stages, especially when there is a fatal shortcoming in one of the six. For
example, an application may be dismissed because the challenger clearly lacks standing and, in such a case, it is
obviously not necessary to ask whether the Bill of Rights applies to the dispute.
3
Neither term is entirely satisfactory. In constitutional litigation the facts are not often in dispute. At issue is
usually the interpretation of the Constitution, whether it protects particular conduct or a set of activities of the
applicant and whether a law or the conduct of the respondent has violated the Constitution. All are principally
legal issues rather than issues of fact. A better explanation of the incidence of the burden of proof in constitutional
litigation might be the American term ‘showing’. An applicant for relief under the Bill of Rights has to make a
showing (ie, present an argument) that a right in the Bill of Rights has been violated by a law or by conduct of the
respondent. The respondent in turn can deny the violation, or can attempt to show that the violation is justifiable
26
Structure of Bill of Rights Litigation 2.3–2.4
identified above: interpretation and limitation. The approach of the court to onus in
respect of these stages is set out by Ackermann J in the following extract from Ferreira
v Levin NO:
The task of determining whether the provisions of [an] Act are invalid because they are
inconsistent with the guaranteed rights here under discussion involves two stages, first, an
enquiry as to whether there has been an infringement of the . . . guaranteed right; if so, a
further enquiry as to whether such infringement is justified under . . . the limitation clause.
The task of interpreting the . . . fundamental rights rests, of course, with the Courts, but it is
for the applicants to prove the facts upon which they rely for the claim of infringement of the
particular right in question. Concerning the second stage, [it] is for the legislature or the
party relying on the legislation to establish this justification [in terms of the limitation
clause], and not for the party challenging it, to show that it was not justified.4
This description focuses on the difference in onus relating to the questions of
interpretation and limitation. The applicant has to show that an infringement of a right
has taken place. This requires the applicant to prove the facts on which they rely. The
respondent then has to show that an infringement is a justifiable limitation of the right in
terms of s 36.
In addition to the applicant’s onus at the substantive stage of litigation, the
applicant must also show at the preliminary stage of litigation that the Bill of Rights
applies to the challenged law or conduct, that the issue is justiciable, that he or she
has standing, and that he or she is in the right forum to obtain the desired relief.
Only once these issues have been decided in the applicant’s favour, and a violation
of the Bill of Rights is found, will the party relying on the validity of the challenged
decision or legislation be called upon to justify it in terms of s 36, the limitation
clause.
The question of who bears the onus when considering the appropriate relief for
unconstitutional legislation or conduct is more complicated. When the Bill of Rights
is indirectly applied, an ordinary legal remedy is granted and the ordinary legal rules
apply in respect of the burden of proof. When the Bill of Rights is directly applied,
the remedy that flows from a finding of inconsistency between the Bill or Rights and
law of conduct is for the court to invalidate the offending law or conduct. A party
proposing a variation of this form of relief in terms of s 172(1)(b)(i) or (ii) must
justify the request. Since s 172 allows a court to limit or suspend the effects of a
declaration of invalidity, the respondent will in most cases be called upon to justify
such a request. However, a court may also grant relief in addition to the declaration
of invalidity, such as an interdict or constitutional damages. In most cases, the
applicant will request such relief and will therefore bear the burden of persuasion.
2.4 SUMMARY OF THE STAGES IN TABLE FORM

The stages through which Bill of Rights litigation typically proceeds are set out in the
following table:
in terms of the limitation clause. On the nature of the respondent’s burden in limitation analysis see para 7.1(b) in
Chapter 7 below.
4
Ferreira v Levin NO 1996 (1) SA 984 (CC) [44].
27
(a) Procedural stage

(i) Application: Does the Bill of Rights apply in the dispute between the parties? How
does the Bill of Rights apply in the dispute?
As for the first question, it must be determined whether the applicant is entitled to
claim the benefits of the Bill of Rights. It must also be determined whether the Bill of
Rights applies to the conduct of the respondent in the sense that the respondent has
obligations under the Bill of Rights. Finally, it must be determined whether the cause
of action arose in the national territory during the period of application of either the
interim or 1996 Bill of Rights.
As for the second question, indirect application must be considered before direct
application. If the Bill of Rights is indirectly applied to the issue, the questions of justi-
ciability, jurisdiction and an appropriate remedy are resolved in terms of ordinary legal
rules. If directly applied, special constitutional rules apply.
(ii) Justiciability: Is the issue to be decided justiciable? Does the applicant in the mat-
ter have standing in respect of the particular relief sought?
(iii) Jurisdiction: Does the court have jurisdiction to grant the relief claimed?
If the answer to all three questions is yes, the court is able to move on to the substan-
tive stage.
(b) Substantive stage
(i) Interpretation: Has the law or conduct of the respondent infringed a fundamental
right of the applicant?
If yes, the court will consider whether the infringement is justifiable. If no, then the
application must be dismissed.
(ii) Limitation: Is the infringement a justifiable limitation of the right in question
according to the criteria set out in s 36?
If yes, then the conduct of the respondent is not unconstitutional and the application
must be dismissed. If no, then the conduct is unconstitutional and the question of the
appropriate remedy must be canvassed.
(c) Remedies
What remedy is appropriate in this case?
28
Chapter Three
Application of the Bill of Rights

3.1 Introduction: the meaning of ‘application’ and the distinction
between direct and indirect application of the Bill of Rights . . . . . . . . . 31
3.2 Application under the interim Constitution compared to the 1996
Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
(a) The interim Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
(a) The 1996 Constitution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
3.3 Direct application of the Bill of Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
(a) Beneficiaries of the Bill of Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
(i) Natural persons. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
(ii) Juristic persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
(iii) Agreements not to claim the benefits of the Bill of Rights:
the problem of waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
(b) Duties under the Bill of Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
(i) Direct horizontal and vertical application of the Bill of
Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
(ii) Direct vertical application: duties of state actors . . . . . . . . . . . . 42
(aa) Legislatures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
(bb) The executive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
(cc) Organs of state. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
(dd) The judiciary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
(c) Direct horizontal application: duties of private actors . . . . . . . . . . . . 45
(i) The near-redundancy of direct horizontal application . . . . . . . 45
(ii) How to interpret s 8(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
(d) Temporal application of the Bill of Rights . . . . . . . . . . . . . . . . . . . . . . . 51
(i) Which Constitution applies? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
(ii) The non-retrospectivity rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
(iii) Application of the Bill of Rights to matters pending at the
date of commencement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
(e) Territorial application of the Bill of Rights. . . . . . . . . . . . . . . . . . . . . . . 55
3.4 Indirect application of the Bill of Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
(a) General principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
(b) Indirect application to legislation: the duty to interpret legislation
in conformity with the Bill of Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
(i) Scope of the duty. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
(ii) Methodology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
(iii) Interpretation in conformity is not confined to the restrictive
reading of legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
29
(c) Indirect application of the Bill of Rights to disputes governed by

the common law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
(i) The obligation to develop the common law . . . . . . . . . . . . . . . . . 60
(ii) The methodology of indirect application to the common
law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
(iii) Limits on indirect application to the common law . . . . . . . . . . 63
(iv) Stare decisis and indirect application. . . . . . . . . . . . . . . . . . . . . . . . 63
3.5 The manner of application of the Bill of Rights in legal disputes . . . . 66
(a) Currency of the distinction between direct and indirect
application. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
(b) Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
(c) The purpose and effect of direct application differ from that of
indirect application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
(d) Indirect application must be considered before direct application. 68
Application
8. (1)The Bill of Rights applies to all law, and binds the legislature,
the executive, the judiciary and all organs of state.
(2) A provision of the Bill of Rights binds a natural or a juristic
person if, and to the extent that, it is applicable, taking into account the
nature of the right and the nature of any duty imposed by the right.
(3) When applying a provision of the Bill of Rights to a natural or
juristic person in terms of subsection (2), a court—
(a) in order to give effect to a right in the Bill, must apply, or if
necessary develop, the common law to the extent that legislation
does not give effect to that right; and
(b) may develop rules of the common law to limit the right, provided
that the limitation is in accordance with section 36(1).
(4) A juristic person is entitled to the rights in the Bill of Rights to the
extent required by the nature of the rights and the nature of that juristic
person.
Interpretation of Bill of Rights

39. (1) When interpreting the Bill of Rights, a court, tribunal or
forum—
(a) must promote the values that underlie an open and democratic
society based on human dignity, equality and freedom;
(b) must consider international law; and
(c) may consider foreign law.
(2) When interpreting any legislation, and when developing the
common law or customary law, every court, tribunal or forum must
promote the spirit, purport and objects of the Bill of Rights.
30
Application of the Bill of Rights 3.1
(3) The Bill of Rights does not deny the existence of any other rights or
freedoms that are recognised or conferred by common law, customary
law or legislation, to the extent that they are consistent with the Bill.
3.1 INTRODUCTION: THE MEANING OF ‘APPLICATION’ AND THE DISTINCTION

BETWEEN DIRECT AND INDIRECT APPLICATION OF THE BILL OF RIGHTS
The Bill of Rights applies directly to a legal dispute when: (a) a right of a beneficiary of
the Bill of Rights has been infringed by (b) a person or entity on whom the Bill of Rights
has imposed the duty not to infringe the right; (c) during the period of operation of the
Bill of Rights and (d) in the national territory. In addition, in instances when the Bill of
Rights does not apply directly to a dispute because one or more of the elements above is
not present, it may apply indirectly. This is because all law must be developed,
interpreted and applied in a way that conforms to the Bill of Rights.
This description tells us that a conceptual distinction must be made between two
forms of application of the Bill of Rights.
• Indirect application. The Constitution and the Bill of Rights establish an ‘objective
normative value system’, a set of values that must be respected whenever the
common law or legislation is interpreted, developed or applied.1 This form of
application is termed the ‘indirect’ application of the Bill of Rights. When indirectly
applied, the Bill of Rights does not override ordinary law or generate its own
remedies. Rather, the Bill of Rights respects the rules and remedies of ordinary law,
but demands furtherance of its values mediated through the operation of ordinary
law.2
• Direct application. In disputes in which the Bill of Rights applies as directly
applicable law, it overrides ordinary law and any conduct that is inconsistent with it
and, to the extent that ordinary legal remedies are inadequate or do not give proper
effect to the fundamental rights, the Bill of Rights generates its own remedies.3 The
methodology for the conduct of direct rights litigation is applicable.4
This distinction was of decisive significance under the interim Constitution. It has
comparatively less significance under the 1996 Constitution. This is because of changes
made to the jurisdictional and application scheme by the 1996 Constitution, outlined in
the following section. There are nevertheless important consequences that follow from
the form of application, and the distinction between direct and indirect application
therefore continues to play a role in constitutional litigation.
1
Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC) [56]; Everfresh Market Virginia (Pty) Ltd
v Shoprite Checkers (Pty) Ltd 2012 (1) SA 256 (CC) [48].
2
Barkhuizen v Napier 2007 (5) SA 323 (CC) [29].
3
‘Constitutional remedies’, discussed in Chapter 8 below.
4
Set out in Chapter 2 above.
31
3.2 APPLICATION UNDER THE INTERIM CONSTITUTION COMPARED TO THE 1996

CONSTITUTION
(a) The interim Constitution

The application of the Bill of Rights has been one of the most troublesome issues in
South African constitutional law. The principal reason for the difficulty is that, since
1994, South Africa has had two Constitutions that have treated the issue differently.
Much of the relevant jurisprudence, particularly relating to the application of the Bill of
Rights to the common law, was decided under the interim Constitution and does not
always bear precisely on the altered jurisdictional and application schemes of the 1996
Constitution. For contextual purposes, it is necessary at the outset to describe the
position under the interim Constitution and the changes brought about by the 1996
Constitution.
The narrowest conception of a Bill of Rights is that it is a ‘charter of negative
liberties’.5 This means that it is intended to protect individuals against state power by
listing rights that cannot be violated by the state, either by means of law or through the
conduct of state actors. This is the ‘vertical’ relationship—between individuals and the
state. A Bill of Rights that has solely vertical application will place duties on the state
not to violate the rights of individuals. It will not place any similar duties on individuals.
According to the Constitutional Court in Du Plessis v De Klerk,6 the Bill of Rights in
the interim Constitution conformed to this traditional model in so far as it had no direct
application to so-called ‘horizontal’ disputes, that is to disputes between private litigants
governed by the common law.7 This was principally because of the absence of the word
‘judiciary’ in s 7—the application section of the interim Constitution: ‘[The Bill of
Rights] shall bind all legislative and executive organs of state at all levels of
government’. The omission meant that the Bill of Rights placed duties to uphold
constitutional rights only on the legislative and executive organs of state. Individuals
were not directly bound by the Bill of Rights. Nor was the judiciary, which had the task
of adjudicating and enforcing the rights and duties of individuals.8
However, while the interim Bill of Rights did not apply directly to horizontal cases it
did have indirect application. The Bill of Rights applied to ‘all law in force’, including
all pre- and post-1994 legislation and the uncodified common law (ie, provisions of the
common law that had not been incorporated into legislation). Even if individuals were
not directly bound by the Bill of Rights, the courts had to interpret legislation and to
develop the common law so that the ordinary law recognised and protected the rights in
5
Posner J in Jackson v City of Joliet 715 F 2d 1200, 1203 (7th Cir) (1983) 1206 (US Constitution ‘a charter of
negative rather than positive liberties. . . . The men who wrote the Bill of Rights were not concerned that
Government might do too little for the people but that it might do too much to them’.)
6
Du Plessis v De Klerk 1996 (3) SA 850 (CC).
7
Du Plessis (ibid) was itself a representative example of such a dispute. The plaintiff (an individual) sued a
newspaper for defamation using the common-law action for the recovery of damages for an injury to personality
rights: the actio iniuriarum.
8
Ibid [45]. The practical result was summarised as follows ([49]): ‘a) Constitutional rights under Chapter 3
[the interim Bill of Rights] may be invoked against an organ of government but not by one private litigant against
another. b) In private litigation any litigant may nonetheless contend that a statute (or executive act) relied on by
the other party is invalid as being inconsistent with the limitations placed on legislature and executive under
Chapter 3. c) As Chapter 3 applies to common law, governmental acts or omissions in reliance on the common
law may be attacked by a private litigant as being inconsistent with Chapter 3 in any dispute with an organ of
government.’
32
the Bill of Rights.9 This was provided for in s 35(3) of the interim Constitution: ‘In the
interpretation of any law and the application and development of the common law and
customary law, a court shall have due regard to the spirit, purport and objects of . . . [the
Bill of Rights]’.
In Du Plessis the Constitutional Court also decided a crucial jurisdictional issue. The
court’s conclusion that the Constitution distinguished between direct and indirect
application of the Bill of Rights was bolstered by the close fit between this distinction
and the ‘two-track’ jurisdictional scheme of the interim Constitution.10 The
development of the common law was a non-constitutional matter and therefore
remained within the jurisdiction of the court that had overseen the development of the
common law for the past century—the Appellate Division of the Supreme Court.11
(b) The 1996 Constitution

With the Du Plessis decision in mind and concerned that confining the Bill of Rights to
direct vertical application amounted to the toleration of private violations of rights, the
Constitutional Assembly created a different application and jurisdictional scheme in the
1996 Constitution.12 To provide for direct horizontal application, two textual changes
were made. The first was the addition of the word ‘judiciary’ in s 8(1), missing from the
application provisions of the interim Constitution. The second was the imposition on of
a duty on individuals, in s 8(2), to uphold the rights of other individuals:
Application
8. (1) The Bill of Rights applies to all law, and binds the legislature,
the executive, the judiciary and all organs of state.
(2) A provision of the Bill of Rights binds a natural or a juristic person
if, and to the extent that, it is applicable, taking into account the nature
of the right and the nature of any duty imposed by the right.
The 1996 Constitution also made significant changes to the powers of the courts to
enforce the Constitution. The ‘two-track’ jurisdictional scheme of the interim
Constitution was replaced by a unified scheme in which the High Courts, Supreme Court
of Appeal and the Constitutional Court shared jurisdiction over constitutional matters.13
9
Ibid [62].
10
Ibid [57]. The jurisdictional scheme of the interim Constitution distinguished between ‘constitutional
matters’ and other matters, the former being the preserve of the Constitutional Court and the latter the preserve of
the Appellate Division. (See, further, para 5.2(a) in Chapter 5 below.) Indirect application was not a ‘consti-
tutional matter’ and was therefore within Appellate Division jurisdiction [64].
11
This conclusion was further reinforced by drawing a conceptual distinction between the common-law
method of decision-making (ad hoc and case by case development of rules and principles) with the
constitutional-law method of decision-making (striking down unconstitutional laws). Ibid [58].
12
On the Constitutional Assembly deliberations on the issue, see H Cheadle ‘Application’ in H Cheadle et al
(eds) South African Constitutional Law: the Bill of Rights (2002) 26–28. The inclusion of direct horizontal
application is one of the indications of the transformative ambition of the 1996 Constitution. The whole legal
system, including the private law governing private relations must be transformed to conform to constitutional
values: KE Klare ‘Legal Culture and Transformative Constitutionalism’ (1998) 14 SAJHR 146.
13
These changes and their implications for the controlling jurisdictional concept of a ‘constitutional matter’
are surveyed in para 5.3(c) in Chapter 5 below.
33
This scheme required revision of the holding in Du Plessis that the application of the
Constitution to the common law was a non-constitutional matter. Under the 1996
Constitution, the Constitutional Court held in the Pharmaceutical Manufacturers case,
‘[t]here are not two systems of law, each dealing with the same subject matter, each
having similar requirements, each operating in its own field with its own highest court.
There is only one system of law. It is shaped by the Constitution which is the supreme
law, and all law, including the common law, derives its force from the Constitution and
is subject to constitutional control’.14
While clearly envisaging direct horizontal application in applicable cases, the 1996
Bill of Rights also requires the courts to apply the Bill of Rights indirectly, in
similar terms to s 35(3) of the interim Constitution. This is s 39(2): ‘When
interpreting any legislation, and when developing the common law or customary law,
every court, tribunal or forum must promote the spirit, purport and objects of the Bill
of Rights’.
To summarise, the 1996 Constitution, like its predecessor, distinguishes two forms
of application of the Bill of Rights. Direct application entails the imposition of duties
by the Bill of Rights on specified actors: a breach of such a duty is a violation of a
constitutional right. Indirect application occurs where there is a provision of ordinary
law (legislation, common law or customary law) that mediates between the Bill of
Rights and the actors who are subject to that law. The duty of the courts is to ensure
that the ordinary law conforms to the values to which the Bill of Rights, by
conferring the rights and duties that it does, gives effect.
Like its predecessor, the 1996 Constitution provides for direct vertical application
of the Bill of Rights but, unlike its predecessor, does not confine itself to this form
of direct application. Section 8(2) clearly envisages direct application of the Bill of
Rights in the horizontal relationship in certain circumstances.
3.3 DIRECT APPLICATION OF THE BILL OF RIGHTS

There are four elements that are determinative of the direct application of the Bill of
Rights. The first relates to beneficiaries, the second to the duties imposed by the Bill of
Rights, the third relates to time and the fourth to the limited territorial effect of the Bill
of Rights. Each element is considered in turn below.
(a) Beneficiaries of the Bill of Rights

Legal rights are a correlative relationship. If A has a legal right to something, this
postulates that B has a legal duty to A to uphold that right. A is therefore the beneficiary
of the right and B is the duty-bearer in respect of the right. The first application issue we
need to confront when considering the reach of the Bill of Rights is to identify the
beneficiaries and the duty-bearers of the rights in the Bill of Rights.
(i) Natural persons

Most of the rights in the Bill of Rights are for the benefit of ‘everyone’. The negative
phrase, which is to the same effect, is that a right may be denied to ‘no one’. For
14
2000 (2) SA 674 (CC) [44].
34
example, s 11 provides that ‘Everyone has the right to life’. Section 13 is phrased
negatively but, like s 11, accords the right universally: ‘No one may be subjected to
slavery, servitude or forced labour’. Rights phrased in this way are accorded to all
natural persons within the territory of the Republic.15 The position of juristic persons is
a little more complicated and is discussed in 3.3(a)(ii) immediately below.
Other rights are accorded to narrower categories of beneficiaries. The political rights
in s 19, the citizens’ rights in s 20, certain of the freedom of movement rights in s 21 and
the freedom of trade right in s 22 are accorded to ‘every citizen’. The right to vote and
stand for political office in s 19(3) is restricted to ‘every adult citizen’.16 Further
examples of restrictions on the category of beneficiaries are the cultural rights contained
in s 31, which are for the benefit only of ‘persons belonging to a cultural, religious or
linguistic community’. The rights contained in s 35 are restricted to arrested, detained
and accused persons.
The restriction of a right to a particular category of beneficiaries is an attempt to
circumscribe the scope of the right: a right accorded only to citizens obviously has a
more limited scope of operation than a right accorded universally. The circumscription
of rights in this manner does not really concern the application of the rights, but may
raise difficult issues of interpretation. The courts will have to interpret the Bill of Rights
to determine who is, for example, a ‘detained person’,17 or ‘a worker’18 or a ‘person
belonging to a cultural religious or linguistic community’.19 The activities of persons
who are excluded from the scope of a right will not be protected by the right.20
(ii) Juristic persons

Are the rights accorded to ‘everyone’ also available for the benefit of juristic persons? In
other words, are companies protected by the Bill of Rights? What about state-owned or
15
The benefit of the universal rights may be claimed by anyone within the national territory, irrespective of
whether they are there legally or illegally, temporarily or permanently. See Mohamed v President of the Republic
of South Africa 2001 (3) SA 893 (CC) (benefits of ss 10, 11 and 12 of the Constitution can be claimed by illegal
immigrant). In Lawyers for Human Rights v Minister of Home Affairs 2004 (4) SA 125 (CC) the Constitutional
Court dismissed an argument that foreign nationals at airports or seaports who have not yet been given
permission to enter the Republic are not beneficiaries of the Bill of Rights. According to Yacoob J, ‘denial of
these rights to human beings who are physically inside the country at sea- or airports merely because they have
not entered South Africa formally would constitute a negation of the values underlying our Constitution. It could
hardly be suggested that persons who are being unlawfully detained on a ship in South African waters cannot turn
to South African courts for protection, or that a person who commits murder on board a ship in South African
waters is not liable to prosecution in a South African court’ [26]. The position of people denied permission to
enter the country by road was left undecided [27].
16
The explicit restriction of some rights to ‘citizens’ implies that those rights accorded to ‘everyone’ are for
the benefit of citizens and non-citizens alike. Similarly, we can assume that both citizens and non-citizens are
entitled to the protection of those rights accorded to ‘every child’ (s 28) and to ‘every worker’ and ‘every
employer’ (s 23). In other words, alien workers are entitled to the protection of s 23 as long as they fall within the
category of worker. Similarly, a non-citizen under the age of 18 is entitled to the benefits of children’s rights. See
Khosa v Minister of Social Development 2004 (6) SA 505 (CC) [46]–[47] (socio-economic rights in ss 26 and 27
accorded to ‘everyone’ and not just citizens).
17
See, further, the discussion in para 32.2(a) in Chapter 32 below.
18
South African National Defence Force Union v Minister of Defence 1999 (4) SA 469 (CC) [27]–[29]
(permanent members of SANDF are ‘workers’ for purposes of the right to join trade union and the right to strike).
See, further, the discussion in para 23.3 in Chapter 23 below.
19
See, further, the discussion in para 28.2 in Chapter 28 below.
20
Such persons are, however, provided they have sufficient interest in doing so, entitled to rely on and benefit
from the ‘objective inconsistency’ between a law or conduct and a provision in the Bill of Rights. This is a result
of the generous interpretation by the Constitutional Court of the standing requirements for enforcement of the
Bill of Rights. See, further, para 4.2(b) in Chapter 4 below.
35
state-controlled corporations such as Eskom or the SABC? These questions are

answered by reference to s 8(4):
A juristic person is entitled to the rights in the Bill of Rights to the extent required by the
nature of the rights and the nature of that juristic person.
In order to decide whether a juristic person is protected, regard must be had to two
factors: the nature of the fundamental right in question and the nature of the juristic
person. According to the Constitutional Court
[M]any ‘universally accepted fundamental rights’ will be fully recognised only if afforded to
juristic persons as well as natural persons. For example, freedom of speech, to be given
proper effect, must be afforded to the media, which are often owned or controlled by juristic
persons. While it is true that some rights are not appropriate to enjoyment by juristic
persons, the text of s 8(4) specifically recognises this. The text also recognises that the
nature of a juristic person may be taken into account by a court in determining whether a
particular right is available to such person or not.21
The nature of some of the fundamental rights prevents them from benefiting juristic
persons. The rights to life and physical integrity, and to human dignity,22 for example,
cannot sensibly be applied to juristic persons. A company cannot claim protection of its
right to life or human dignity or its right not to be deprived of liberty or tortured because
these rights protect aspects of human existence that a company does not possess.
However, the nature of most of the rights that are likely to be relied on by juristic
persons (equality (s 9),23 privacy (s 14), freedom of expression (s 16),24 freedom of
association (s 18), the right to engage in collective bargaining (s 23(5)), the property
right (s 25), the right of access to information (s 32), just administrative action (s 33),
access to court (s 34) and the fair trial rights (s 35(3)) makes them applicable to the
protection of juristic persons. However, in the case of rights that stem from the
protection of human dignity (such as privacy), the Constitutional Court has indicated
that juristic persons are entitled only to a reduced level of protection compared to natural
persons.25
It is the second of s 8(4)’s criteria—the nature of the juristic person—that may
place greater restrictions on the availability of human rights to juristic persons. It is
difficult to see how organs of state exercising core government functions such as
Parliament, a cabinet minister or the police will ever be able to rely on the protection
of the Bill of Rights. Although arguably they are ‘juristic persons’, the nature of
such organs of state makes them unsuitable to be beneficiaries of fundamental rights.
21
Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic
of South Africa, 1996 1996 (4) SA 744 (CC) [57].
22
See Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty) Ltd: In re
Hyundai Motor Distributors (Pty) Ltd v Smit NO 2001 (1) SA 545 (CC) [18].
23
Weare v Ndebele NO 2009 (1) SA 600 (CC) [48], [73] (court avoiding reconsideration of High Court’s
holding that juristic person could rely on equality rights); Manong & Associates v City of Cape Town 2009 (1) SA
644 (EqC) [31]–[35] (firm of civil engineers entitled to rely on right to non-discrimination).
24
The specific protection of freedom of the press and other media in s 16(1)(a) expressly contemplates that the
benefit of the right will be claimed by juristic persons.
25
Hyundai Motor Distributors (Pty) Ltd (note 22 above) [18] (although juristic persons are not the bearers of
human dignity they are entitled to the right to privacy, but their privacy rights ‘can never be as intense as those of
human beings’). The same analysis should probably apply to other personality rights extended to juristic persons.
See Media 24 Ltd v SA Taxi Securitisation (Pty) Ltd 2011 (5) SA 329 (SCA) [43]–[47] (company’s right to
protection of its reputation given constitutional underpinnings by analogy with its right to privacy).
36
They are not used by individuals for the collective exercise of their fundamental
rights, but are instead used by the state for the exercise of its powers. However,
state-owned corporations such as the South African Broadcasting Corporation or the
Post Office, or entities such as universities, which are set up by the state for the
purpose, amongst other things, of realising particular fundamental rights, are
differently situated. Clearly a state-owned corporation like the SABC should be able
to invoke the right to freedom of speech and the press when it becomes involved in
a dispute with the state or even with an individual.
As for private juristic persons, the size or activities of the juristic person are not
necessarily decisive. Of greater significance, in our view, is the relationship between
the activities of the juristic person and the fundamental rights of the natural persons
who stand behind the juristic person. In other words, juristic persons are not in and
of themselves worthy of protection, but they become so when they are used by
natural persons for the collective exercise of their fundamental rights. For example,
companies are routinely used by individuals as an entity for conducting business,
necessitating the exercise of property rights by companies.26 What s 8(4) envisages is
that there should be a link between protecting the activity of the juristic person and
protecting the fundamental rights of the natural persons that lie behind it.
Much of the debate about the meaning of the guidelines contained in s 8(4), that
is, ‘the nature of the right’ and ‘the nature of the juristic person’, is made irrelevant
by the courts’ approach to standing in constitutional litigation. The issue of standing
is discussed in detail in Chapter 4 below. Basically, a person has standing to
challenge the constitutionality of laws or conduct provided that they allege that a
fundamental right is infringed or threatened, and they have, in terms of the
categories listed in s 38, a sufficient interest in obtaining a remedy.27 The first
enquiry is objective: it is sufficient to show that a right in the Bill of Rights is
violated by a law or conduct and it is not necessary to show that a right of the
applicant has been violated.
This approach allows anyone with a sufficient interest to rely on the objective
inconsistency between the Bill of Rights and a law or conduct. For example, it will
seldom be necessary for juristic persons to invoke s 8(4) which sometimes extends
the protection of the right to the juristic person itself. Laws and many forms of state
and private conduct inevitably impact on the activities of both natural and juristic
persons. Provided that a juristic person has a sufficient interest of its own (s 38 (a))
or, if it is an association, a sufficient interest of its members, it may challenge such
laws or conduct on the basis of fundamental rights that do not necessarily benefit the
juristic person. For example, a law which prohibits the sale of wine on Sunday may
be challenged by a company on the basis of the right to freedom of religion,
provided that the company has a sufficient interest in the outcome of the litigation. It
is not necessary in such a case for the company to show that the right to freedom of
religion benefits juristic persons.
It is only when a law or conduct impacts solely on the activities of juristic persons
that it will not be possible to follow this course of action. Then there can be no
26
First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Services 2002 (4) SA
768 (CC) [41]–[45]; Offıt Enterprises (Pty) Ltd v Coega Development Corporation (Pty) Ltd 2011 (1) SA 293
(CC) [6].
27
Ferreira v Levin NO 1996 (1) SA 984 (CC).
37
objective inconsistency between the Bill of Rights and the law or conduct, unless
s 8(4) extends protection of the relevant right to juristic persons. For example, when
a special tax on companies is challenged, a person challenging the tax will have to
do so on the basis of a right that benefits juristic persons.
(iii) Agreements not to claim the benefits of the Bill of Rights: the problem of
waiver
Waiver can be considered an application issue and can be accommodated under the
consideration of the beneficiaries of the Bill of Rights in that someone who has waived
a right has agreed that he or she will not claim the benefit of it.28 Although the
distinction may be difficult to make in some cases, the waiver of fundamental rights
should be distinguished from a decision not to exercise a fundamental right. Where a
person chooses not take part in an assembly or not to join an association, he or her
cannot later complain about a violation of his or her rights to freedom of assembly or
association. The same applies when an arrested person makes an informed choice to
co-operate with the police by making a statement or a confession, or when a person
allows the police to search his or her home.29 Such a person cannot subsequently object
at the trial that the introduction of the evidence violates his or her right to remain silent
or his or her right to privacy of the home. In principle, the accused may nevertheless
object to the use of the evidence if it would render the trial unfair. But, in the absence of
other circumstances (for example, that the accused was improperly persuaded to
co-operate), it is difficult to see why the use of the evidence would result in an unfair
trial.
Waiver is different. One is dealing with waiver when someone undertakes not to
exercise a fundamental right in future. For example, a contractual restraint of trade is an
undertaking to waive one’s right, guaranteed by s 22, to occupational freedom for a
period of time. Or, a person may undertake not to disclose sensitive information, or may
undertake to vote for a particular political party on election day, may agree to have his or
her telephone calls recorded and listened to by his or her employer, or agree to attend
religious instruction classes in a private school.30 These are, respectively, attempts to
waive the rights to freedom of expression, to vote, to privacy and to freedom of religion.
The question is then whether people may be obliged to honour such an undertaking even
if they subsequently change their minds.
A few general observations can be made at the outset. A waiver cannot make
otherwise unconstitutional laws or conduct constitutional and valid. Section 2 of the
Constitution provides that law or conduct inconsistent with the Constitution is invalid.
This is an objective consideration and the actions of the beneficiary of the right can have
28
But see S Woolman ‘Application’ in Woolman, Brickhill & Bishop (eds) Constitutional Law of South Africa
para 31.7 who argues that there is no such thing as waiver of constitutional rights and that what appears to be a
contractual undertaking to forgo a right is instead either conduct that is within the scope of the right (in which
case the undertaking will be impermissible) or outside it (in which case the undertaking is valid). Waiver is
therefore really an issue of interpretation of the right.
In Transnet Limited v Goodman Brothers (Pty) Ltd 2001 (1) SA 853 (SCA), Olivier JA, in a separate judgment,
stated that a ‘waiver of a right is a limitation thereof’ and that the litigant who relied on it had to make a case that
the waiver was warranted by a law of general application. This analysis, it is submitted, is incorrect. Waiver is
conduct of the beneficiary of the right and not conduct of an alleged infringer of the right and is therefore not a
limitation.
29
The choice must be informed (the person must at least know what his or her rights are) and considered. See
S v Pienaar 2000 (2) SACR 143 (NC) [6].
30
Wittmann v Deutscher Schülverein, Pretoria 1998 (4) SA 423 (T).
38
no influence on the invalidity of unconstitutional law or conduct.31 That is why a person

cannot validly undertake to behave unconstitutionally. Such an undertaking will have no
force and effect.32 Similarly, a person cannot waive the indirect application of the Bill of
Rights. Two people cannot undertake, for example, that the law of defamation must be
applied in future disputes between them without any reference to the Bill of Rights. The
reason for this is that s 39(2) requires courts to promote the Bill of Rights when
developing the common law and individuals may not prevent the court from fulfilling its
constitutional obligations.
What individuals may do is to waive the right to exercise a fundamental right.33 The
individual may undertake not to invoke the constitutional invalidity of state or private
conduct. However, from a constitutional point of view, such a waiver is hardly ever
decisive of an issue. But it is also seldom irrelevant. While we deal with waiver here as
an issue of application, we do not mean to suggest that it must be answered by simply
asking whether the individual may exclude him or herself from the ‘benefits’ of a
particular fundamental right in the circumstances of the case. Waiver, and more
generally, victim responsibility, may also influence the limitation stage and the remedy
that a court will award for breach of the fundamental right.
The effect of waiver firstly depends on the nature and purpose of the fundamental
right in question. In principle, many of the freedom rights may be waived as long as the
undertaking is made clearly and freely and without the subject being placed under
duress or labouring under a misapprehension.34 To be enforceable, the waiver would
have to be a ‘fully informed consent and one clearly showing that the applicant was
aware of the exact nature and extent to the rights being waived in consequence of such
consent’.35
For example, the right to occupational freedom (s 22) is often waived by employees
when concluding a contract of employment. There is also no reason why one cannot
waive the right to privacy (s 14).36 Similarly, one may validly undertake not to
31
Van der Merwe v Road Accident Fund 2006 (4) SA 230 (CC) [61].
32
See President of the Republic of South Africa v South African Rugby Football Union (SARFU III) 2000 (1)
SA 1 (CC) [198], where the court gives a hypothetical example of a contract in which the Minister of Foreign
Affairs undertook to ensure that the other party would be appointed ambassador to a particular country. Such an
undertaking, according to the court, could not fetter in any way the discretion conferred by s 84(2)(i) of the
Constitution on the President nor the discretion of the Minister to recommend someone else for that post. Nor
could it be grounds for a claim that the appointment of someone else should be set aside because the disappointed
contractor has not been given a hearing by the President before the appointment was made.
33
It seems as if the rights violator may also explicitly or implicitly waive the right to rely on possible defences
or grounds of justification. See Tettey v Minister of Home Affairs 1999 (1) BCLR 68 (D), 74I–75A.
34
See for example S v Gasa 1998 (1) SACR 446 (D) (not a properly informed waiver of the right to legal
representation). In Coetzee v Comitis 2001 (1) SA 1254 (C) [38] the court assumed, incorrectly it is submitted,
that a player did not ‘voluntarily’ agree to the terms of a contract which incorporated National Soccer League
Rules and Regulations which limited his fundamental rights. The question is rather whether such an agreement is
against public policy.
35
Mohamed (note 15 above). It had been argued by the state that an extraditee to the United States (where he
faced the possible imposition of the death penalty) had waived his right by consenting to his removal. The court
was able to avoid deciding whether the rights to life, dignity and physical integrity could validly be waived by
holding ([62]) that the applicant’s purported waiver was not fully informed. It was not clear that he knew of his
right to insist that the government would not deliver him to the United States without first obtaining an
undertaking that the death penalty would be imposed. Moreover, the fact that he was not represented by a lawyer
meant that his capacity to waive his rights was seriously impaired ([66]).
36
The general right to privacy is interpreted as a subjective expectation of privacy that is objectively justified.
(See para 14.3(a) in Chapter 14 below.) There is therefore no subjective expectation of privacy where prior
consent has been given, for example, for the publication or dissemination of personal information.
39
demonstrate (s 17), not to join a political party (ss 18 and 19) or not to leave the
Republic (s 21(2)). One may also waive many of the procedural rights, such as the right
to legal representation or the right of access to court.37 As far as these rights are
concerned, it is not so much the nature of the right, but the length of the period of the
waiver, the danger of abuse and the position of the beneficiary that may be decisive. The
waiver may not be contrary to some other constitutional principle or otherwise contra
bonos mores.38
In contrast to the freedom rights, the nature of the rights to human dignity (s 10),39 to
life (s 11),40 and the right not to be discriminated against (s 9(3) and (4)) or the right to
a fair trial, does not permit them to be waived. Unlike the freedom rights, these rights
cannot be exercised negatively. The right to freedom of expression, for example, can be
exercised by keeping quiet, but the right to dignity cannot be exercised by being abused.
One cannot therefore assume that the right is exercised when it is waived as one can,
subject to the other considerations we have mentioned above, with the freedom rights.
Although some rights may not be waived, it does not mean that the fact of waiver
then becomes legally irrelevant. As we stated above, waiver may also be relevant when
considering the remedy to be awarded for the violation of a fundamental right. For
example, a court would not enforce an undertaking to vote for a particular political
party, but it would also probably not grant relief for such a violation of the right to vote
other than to declare the agreement to be invalid. On the other hand, if a person is
prevented from voting against his or her will, it may well be appropriate to award
damages for the infringement.
An interesting illustration of some of the principles discussed above is provided by
Garden Cities Inc Association v Northpine Islamic Society.41 The High Court granted an
interdict enforcing a contractual undertaking not to use loud-speaking equipment to
broadcast calls to prayer from a suburban mosque. An undertaking not to use any
amplification equipment had been given by the respondent in 1986, in the deed of the
sale of the land on which the mosque was built. Despite the contract, the respondent
started broadcasting amplified calls to prayer through a loudspeaker and the applicants
applied for an interdict to stop it.
The argument of the respondent was that enforcing the contract would amount to a
violation of the constitutional right to freedom of religion and that the Constitution did
not permit the waiver of a fundamental aspect of one’s religion. Conradie J was able to
avoid the waiver issue by holding that amplification of the call to prayer had not been
shown to be a fundamental precept of the Islamic faith and that the agreement therefore
37
See Telcordia Technologies Inc v Telkom SA Ltd 2007 (3) SA 266 (SCA) which holds that an arbitration
agreement which excludes the procedural and substantive guarantees contained in s 34 of the Constitution is a
waiver of the rights and entitlements enshrined in s 34, including the right to a public hearing and even the right
to an independent tribunal. Such a waiver is permissible unless contrary to some other constitutional principle or
otherwise contra bonos mores [48]. In Lufuno Mphaphuli & Associates (Pty) Ltd v Andrews 2009 (4) SA 529
(CC) the majority of the court held that the provisions of s 34 could not be applied to private arbitration
proceedings and so the question of the waiver of the right did not arise.
38
Telcordia (ibid) [48].
39
The same goes for rights closely associated with the right to dignity such as the right not to be tortured,
enslaved or subjected to cruel punishment.
40
Mohamed (note 15 above) [62] (expressing doubt whether a person may give binding consent to being
removed to a country where he or she will face the death penalty).
41
Garden Cities Inc Association v Northpine Islamic Society 1999 (2) SA 268 (C).
40
did not infringe the right to religious freedom.42 It is submitted that it was not necessary
for the court to decide on what constitutes a ‘fundamental precept’ of the respondent’s
religion. If the respondent had waived its right to practice its religion in this way, it
would have made the decision itself. But it is in any event doubtful that the waiver
would have been binding since it cannot have qualified as having been given in full
knowledge of the freedom that is being surrendered. In Northpine the undertaking was
made in 1986, at a time when there was no constitutionally protected right to religious
freedom. It is therefore not feasible to argue that a properly informed waiver of rights
took place, since the right in question did not exist at the time.43
(b) Duties under the Bill of Rights

(i) Direct horizontal and vertical application of the Bill of Rights
As we have seen, traditionally, a bill of rights confines itself to regulating the ‘vertical’
relationship between the individual and the state. This is not a relationship of equality.
The state is far more powerful than any individual. It has a monopoly on the legitimate
use of force within its territory. State authority allows the state to enforce its commands
through the criminal law. If not protected by a bill of rights against abuse of the state’s
powers, the individual would be in an extremely vulnerable position. The 1996 Bill of
Rights performs this traditional task of protecting individuals against the state by
imposing a duty on all branches of the state to respect its provisions.44
However, as we have seen, the 1996 Bill of Rights goes further than is traditional. It
recognises that private abuse of human rights may be as pernicious as violations
perpetrated by the state. For this reason, the Bill of Rights is not confined to protecting
individuals against the state. In certain circumstances the Bill of Rights directly protects
individuals against abuses of their rights by other individuals by providing for the direct
horizontal application of the Bill of Rights.
The direct application of the duties under the Bill of Rights is governed by s 8.
Broadly speaking, s 8(1) deals with direct vertical application. It describes the
circumstances in which law and conduct of the state may be challenged for being
inconsistent with the Bill of Rights. Section 8(2), on the other hand, deals with direct
horizontal application. It sets out the circumstances in which the conduct of private
individuals may be attacked for infringing the Bill of Rights. Section 8(3) grants powers
to the courts to remedy such infringements.
We are concerned at this point with direct application. Recall though that the Bill of
Rights also applies indirectly in both the vertical and horizontal axes. Indirect
application means that instead of the Bill of Rights directly imposing duties and
conferring rights, rights and duties are instead imposed by the common law or
42
Ibid. The contract also contained an agreement that no call to prayer (by unamplified voice) would be made
from the mosque. The applicants did not attempt to enforce this clause. Had they done so it would have squarely
raised the waiver issue, since the call to prayer must presumably be considered a fundamental aspect of the
Islamic faith.
43
Indeed, it looked like the respondents would not have given up their right if it had been constitutionally
protected at the time: ‘The respondent states . . . that it never intended to abide by clause 20, since the call to
prayer is one of the basic tenets of Islam. It does not say how it intended avoiding fulfilment of its bargain. The
agreement was concluded long before a justiciable Bill of Rights became a reality.’ Ibid 270H–I.
44
Section 8(1): ‘The Bill of Rights . . . binds the legislature, the executive, the judiciary and all organs of
state’.
41
legislation. In turn, the development and interpretation of the common law and
legislation is influenced by the Bill of Rights. Indirect application is dealt with in
para 3.4 further below.
(ii) Direct vertical application: duties of state actors

Section 8(1) provides that the legislature, the executive, the judiciary and all organs of
state are bound by the Bill of Rights. An applicant may therefore challenge the conduct
of any of these state institutions as a breach of their duties under the Bill of Rights.
(aa) Legislatures
The term ‘legislature’ refers to the institutions that exercise the legislative authority of
the Republic: Parliament, the provincial legislatures and the municipal councils.45 The
primary duty and principal form of conduct of all of these bodies is legislating. The
output of the legislative process—legislation of the central, provincial and local
governments, as well as any form of delegated legislation—must comply with the Bill of
Rights. This is because, in the words of s 8(1), the Bill of Rights ‘applies to all law’.
As far as conduct of the legislatures other than law-making is concerned, the
implication of s 8(1) is that legislatures and their committees and functionaries are
bound by the Bill of Rights when they perform non-legislative functions, such as the
determination of internal arrangements, proceedings, rules and procedures.46 In De Lille
v Speaker of the National Assembly,47 the High Court stated:
The National Assembly is subject to the supremacy of the Constitution. It is an organ of state
and therefore it is bound by the Bill of Rights. All its decisions and acts are subject to the
Constitution and the Bill of Rights. Parliament can no longer claim supreme power subject
to limitations imposed by the Constitution. It subject in all respects to the provisions of our
Constitution . . . [T]he nature and exercise of parliamentary privilege must be consonant
with the Constitution. The exercise of parliamentary privilege which is clearly a
constitutional power is not immune from judicial review. If a parliamentary privilege is
exercised in breach of a constitutional provision, redress may be sought by an aggrieved
party from law courts whose primary function is to protect rights of individuals.48
(bb) The executive

The Bill of Rights binds the ‘executive . . . and all organs of state’. This means that
conduct of the executive and organs of state can be tested against any of the provisions
of the Bill of Rights with the exception of s 33, which can only be applied to conduct of
the executive and organs of state that amounts to ‘administrative action’.49 Although the
executive and organs of state are primarily responsible for executing the law, it must be
kept in mind that the Bill of Rights also binds these actors when they make law. All
45
Section 43 of the Constitution.
46
Oriani-Ambrosini v Sisulu, Speaker of the National Assembly 2012 (6) SA 588 (CC) (certain rules of
Parliament declared inconsistent with Constitution).
47
De Lille v Speaker of the National Assembly 1998 (3) SA 430 (C).
48
Ibid [25] and [33].
49
Section 33 is given effect to by the Promotion of Administrative Justice 3 of 2000. The Act applies to
administrative action as defined. The definition excludes the executive powers and functions of the various
spheres of government. See, further, para 29.3(b)(vii) in Chapter 29 below.
42
delegated legislation may therefore be directly tested against the Bill of Rights for this
reason and for the reason that the Bill of Rights applies to ‘all law’.
The ‘executive’ can be taken to refer to the party-political appointees who
collectively head the government, whether at the national or provincial level. At the
national level of government, for example, the executive consists of the President, the
Deputy President, the Ministers and the Deputy Ministers.50 On this definition, it is
difficult to envisage conduct of the ‘executive’ that would not also amount to conduct of
an ‘organ of state’ as defined in s 239.
(cc) Organs of state

The phrase ‘organ of state’ is defined in s 239 of the Constitution. In terms of this
definition, the conduct of organs of state may be divided into three categories. First,
conduct of any department of state or administration in the national, provincial or local
spheres of government is conduct of an organ of state. The second category is conduct of
any other functionary or institution exercising a power or performing a function in terms
of the Constitution or a provincial constitution. The third is conduct of any functionary
or institution exercising a public power or performing a public function in terms of any
legislation. A court or a judicial officer is specifically excluded from the definition.51
The first category refers to any department of state or administration in the national,
provincial or local spheres of government. When read in context, the implication of this
provision is that state departments (or the administration) are bound by the Bill of Rights
whether they exercise a power in terms of legislation or act in another capacity.52 State
departments will therefore be bound by the Bill of Rights when, for example, they
decide whether to enter into contracts.53
By providing that the exercise of a power or the performance of a function in terms of
the Constitution—or a provincial constitution—amounts to conduct of an organ of state,
s 239 makes it clear that the exercise of constitutional executive powers (previously
referred to as prerogative powers) may be challenged for consistency with the Bill of
Rights.54
Finally, a functionary or an institution qualifies as an ‘organ of state’ in terms of s 239
when it exercises a public power or performs a public function in terms of legislation.
This provision means, first, that the functionary or the institution must derive powers
from a statute or perform a function in terms of a statute (as opposed to merely being
50
In this chapter, we use examples relating to the national executive, but the same would apply to provincial
government.
51
Courts and judicial officers are not organs of state, but this does not mean that the Bill of Rights does not
bind them. On the contrary, s 8(1) specifically refers to the judiciary. The reason for the exclusion of the judiciary
from the definition in s 239 is that, for purposes of certain provisions of the Constitution, the term organ of state
must not be taken to include judicial officers. For example, s 41(1)(h)(ii) provides that organs of state must assist
and support one another. However, in order to secure respect for human rights, the judiciary will often have to do
exactly the opposite by disciplining the other branches of government.
52
Section 239 distinguishes between state departments (first category) and other functionaries or institutions
exercising powers or functions in terms of legislation (third category). The latter are considered to be ‘organs of
state’ only when they exercise a public power or function in terms of legislation.
53
Transnet Limited v Goodman Brothers (note 28 above) [7]–[9]. However, once a contract is concluded, the
power to cancel the contract derives from the terms of the contract and the common law and an exercise of the
power will not amount to administrative action: Cape Metropolitan Council v Metro Inspection Services (Western
Cape) CC 2001 (3) SA 1013 (SCA) [18].
54
Pharmaceutical Manufacturers (note 14 above) [41]; Mohamed v President of the Republic of South Africa
2001 (3) SA 893 (CC) [30]–[32].
43
incorporated pursuant to a statute, such as all companies and close corporations are).
Secondly, it means that the nature of the power or function (and not the nature of the
functionary or institution) must be ‘public’. The phrase ‘public power’ is used in s 239
of the Constitution but it is not defined there. It has gained wide currency in the
constitutional jurisprudence but definition or theorisation of the concept are seldom
ventured because of its difficulty and abstraction. The concept is best understood as
occupying similar terrain to the concept of ‘public law’. Like public law and its other—
private law—public power operates in necessary but sometimes fuzzy distinction to an
opposite—private power. We propose the following understanding of public power.
Public power is power with a state-like dimension—either because it derives from the
state or because it does what the state typically does—exercise power in a general and
public-regarding way. The term therefore connotes use of the state’s lawfully derived
powers of regulation and compulsion.55 It is to be distinguished from exercises of what
can be called private power—the domain of voluntary obligations.56
(dd) The judiciary

When the members of the judiciary (ie, judges and magistrates) act in a judicial capacity
(when they adjudicate legal disputes) they are required to conduct themselves in a way
that complies with the Bill of Rights. Some provisions of the Bill of Rights, such as
s 35(5) which provides for the exclusion of evidence in certain circumstances, are
indeed specifically directed at the conduct of the judiciary when presiding over criminal
trials. So too, when members of the judiciary perform administrative actions they are
bound to comply with the administrative justice right in s 33.57
The difficult issue is to determine the extent to which the judiciary is bound when it
makes law. Every court decision can be considered to become part of the common law
and add to the common law (unless and until it is overturned by a higher court or the
legislature). If this is so, it can be argued that no court may give legal effect to private
conduct that is inconsistent with the Bill of Rights.58 This means that, for practical
purposes, private persons will then always be bound to the Bill of Rights because they
will be unable to seek the assistance of the courts to enforce their unconstitutional
conduct.
However, this argument has been rejected by the Constitutional Court on the basis
that it would make s 8(2) and s 8(3) redundant.59 The 1996 Constitution specifically
provides that private individuals are directly bound by the Bill of Rights in some
instances and not in every instance. This means, in effect, that common-law rules and
55
See Mittalsteel SA Ltd v Hlatshwayo 2007 (1) SA 66 (SCA) [12]: one sense of the term public power is the
power of ‘being able to regulate or control the conduct of others’; Logbro Properties CC v Bedderson NO 2003
(2) SA 460 (SCA) [10] (public power entails an entity acting from ‘a position of superiority or authority by virtue
of its being a public authority’).
56
See Cape Metropolitan Council v Metro Inspection Services (Western Cape) CC 2001 (3) SA 1013 (SCA);
Logbro Properties CC v Bedderson NO 2003 (2) SA 460 (SCA) [10] (a public authority’s invocation of a
contractual power of cancellation, without any element of superiority or authority deriving from its public
position, is an exercise of private and not public power and therefore not administrative action under the
Constitution).
57
Ferela v Commissioner for Inland Revenue 1998 (9) BCLR 1085 (T), 1095E. See also S v Naidoo 1998 (1)
BCLR 46 (D), 88B (invalidating a direction issued by a judge in terms of the Interception and Monitoring
Prohibition Act 127 of 1992).
58
The argument derives from the US Supreme Court decision in Shelley v Kraemer 334 US 1 (1948).
59
Khumalo v Holomisa 2002 (5) SA 401 (CC) [30]–[31].
44
principles may only be directly tested against the Bill of Rights in so far as they are
relied upon by actors who are directly bound by the Bill of Rights. Whenever such an
actor, private or state, is bound, the Bill of Rights becomes directly applicable law which
overrides the common law in so far as it is inconsistent with the Bill of Rights. In
disputes between private parties regulated by common law, the extent to which the Bill
of Rights applies to private conduct therefore determines its reach or direct application
to the common law.
(c) Direct horizontal application: duties of private actors

(i) The near-redundancy of direct horizontal application
Like its predecessor, the 1996 Constitution provides for direct vertical application of the
Bill of Rights but, unlike its predecessor, is not confined to this form of direct
application. Section 8(2) clearly envisages direct application of the Bill of Rights in the
horizontal relationship in certain circumstances. However, the 1996 Constitution also
permits, in s 39(2), indirect application of the Bill of Rights in horizontal cases.
The presence of s 35(3) of the interim Constitution (now s 39(2)), Kentridge AJ
prophetically stated in Du Plessis, ‘makes much of the vertical/horizontal debate
irrelevant’.60 Since Du Plessis, under both the interim and 1996 Constitution, the courts
have routinely approached the issue of the effect of the Bill of Rights on the common
law indirectly. The invitation of s 8(2)—to apply rights directly in horizontal
situations— was snubbed. Why did direct horizontality, this deliberate innovation in the
1996 Constitution, threaten to become a dead letter? There are a few possible
explanations.61 Certainly, one attraction of indirect application was that courts did not
have to confront the opacity and apparent circularity of s 8 (the Bill of Rights was to be
applied to private actors ‘where applicable’).
Our view is that indirect application was (and remains), in accordance with the
principle of avoidance, preferred to direct application. In common-law disputes between
private parties, a direct application of the Bill of Rights will seldom offer significant
advantages for a litigant over an indirect application. In most cases, a litigant will
motivate for a change in the common law and it matters little whether a court is
persuaded to do so with reference to an argument based on direct or indirect application.
The only cases where direct application to the common law seems to make sense is
when common-law offences or rules are challenged with the purpose of ‘invalidating’
them.62 An indirect application—that is the development of the common law—seems
impossible in such cases. The only other advantage of a direct application of the Bill of
Rights may be found in the generous approach to standing which the courts apply in
fundamental rights litigation.
60
Note 6 above [6.]
61
C Sprigman & M Osborne ‘Du Plessis is Not Dead: South Africa’s 1996 Constitution and the Application of
the Bill of Rights to Private Disputes (1999) 15 SAJHR 25 (the legislature and not the judiciary should be
reforming the common law; indirect application is the best way to leave space for the legislatures to act).
62
Shabalala v Attorney-General Transvaal 1996 (1) SA 725 (CC) (challenging the ‘docket privilege’) or
National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6 (CC) (challenging the crime
of sodomy). Where development of a common-law crime is required, indirect application is appropriate: Masiya
v Director of Public Prosecutions, Pretoria 2007 (5) SA 30 (CC) (common-law definition of rape developed to
include anal rape of a woman).
45
Another reason for the reluctance of private parties to invoke the Bill of Rights
directly is that constitutional remedies for the private violation of fundamental rights are
difficult to envisage or unattractive to litigants. We discuss these problems in greater
detail in Chapter 8 below. However, when challenging legislation and state conduct,
constitutional remedies are not unattractive. On the contrary, by removing parliamentary
sovereignty and replacing it with constitutional supremacy, the Constitution has
provided litigants with a completely new basis to challenge legislation and state
conduct. Moreover, in areas where the South African public law was underdeveloped
the direct application of the Bill of Rights presented a litigant with a useful tool to
challenge state conduct. Not only has the Bill of Rights and the rest of the Constitution
vastly increased the grounds for such a challenge, but the remedy flowing from a finding
of inconsistency between the Bill of Rights and state conduct is the invalidation of the
conduct. This remedy will usually be an attractive one for a litigant.
In contrast, by extending the direct operation of the Bill of Rights to private relations,
the 1996 Bill of Rights has not contributed much to the resolution of private legal
disputes. In most cases, the remedies that apply to such disputes, particularly
common-law remedies, appear to be sufficiently flexible to be considered appropriate for
a horizontal infringement of the Bill of Rights. It is, in any event, difficult to imagine
alternative and more appropriate remedies for these types of infringements.
Whatever the reasons, indirect horizontality provided the default form of application
by which courts approached the common law. The trouble with this was that, besides
rendering s 8(2) irrelevant, the ‘model of indirect application or, if you will indirect
horizontality’ as Kentridge AJ pointed out in Du Plessis, ‘seems peculiarly appropriate
to a judicial system which, as in Germany, separates constitutional jurisdiction from
ordinary jurisdiction’.63 But, under the 1996 Constitution and in a deliberate alteration
of the position under the interim Constitution, South Africa no longer separates
constitutional jurisdiction from ordinary jurisdiction. Moreover, indirect application
suggests that there is a body of common law that is conceptually separate from the
Constitution, exercising a mediating influence between the actors to whom it applies and
the Constitution. This is difficult to accommodate in the remodelled constitutional
system in which there is ‘only one system of law’.64
Khumalo v Holomisa65 is therefore an extremely significant decision. It is the
Constitutional Court’s first use of the direct horizontality provisions of the 1996
Constitution. It might be read as bringing to end the long reign of indirect application of
the Bill of Rights to the common law. It holds (although admittedly not in so many
words) that the Bill of Rights must be applied directly to the common law wherever
appropriate. It should be directly applied, in other words, in many (perhaps most) of the
horizontal cases that have previously been treated as indirect application cases (ie, cases
involving private litigants relying on common-law provisions).
However, despite this, indirect horizontal application has proven to be extremely
robust and remains the preferred judicial method for dealing with rights claims in the
horizontal dimension. In the subsequent Thebus decision the Constitutional Court,
without reference to Khumalo and without reference to any of the academic litera-
ture on the issue, said nothing about the difficult relationship between s 8 and s 39,
63
Note 6 above [60].
64
Pharmaceutical Manufacturers (note 14 above) [44].
65
Note 59 above.
46
but hinted that s 39 (indirect application) was the default mode for considering
challenges to the common law.66
In its only other encounter with direct horizontality, the Constitutional Court has
declined to apply the Bill of Rights directly to a challenge to a time-limitation clause in
an insurance contract in Barkhuizen v Napier.67 An insurance company had rejected an
insurance claim on the grounds that at the time of the accident, the vehicle was being
used for business purposes despite its being insured for private use only. Two years after
the rejection of the claim, the insured issued summons against the insurance company
for the insured amount. The summons was met with a special plea that a term of the
insurance policy required any summons to be served within 90 days of the rejection of
the claim. In his replication, the insured argued that the term requiring him to issue a
summons within 90 days was a breach of s 34 of the Constitution.
This gave the Constitutional Court the opportunity to consider what it termed the
‘proper approach’ to the determination of constitutional validity of contractual clauses
concluded between private parties.68 The High Court had considered the matter as an
instance of direct application of s 34 to the contract and had held that the impugned term
of the contract was in conflict with the right. The clause, it held, was a law of general
application because it was underpinned by the principle of pacta sunt servanda. This
analysis permitted the High Court to consider whether the limitation of s 34 by the
contract was a justifiable limitation of the right. It was held not to be and the clause was
declared invalid.69
The Constitutional Court expressed ‘grave doubt’ about this approach, which entailed
‘testing the validity of a contractual term directly against a provision in the Bill of
Rights’.70 Instead, the approach ordinarily to be adopted entailed indirect application via
the principle that contracts that are contrary to public policy are unenforceable. This
principle must be understood to be ‘deeply rooted in our Constitution and the values that
underlie it’.71 This meant that:
What public policy is and whether a term in a contract is contrary to public policy is now to
be determined by reference to the values that underlie our constitutional democracy as given
expression by the provisions of the Bill of Rights. Thus a term in a contract that is inimical
to the values enshrined in our Constitution is contrary to public policy and therefore
unenforceable. . . . This approach leaves space for the doctrine of pacta sunt servanda to
operate, but at the same time allows courts to decline to enforce contractual terms that are in
conflict with the constitutional values even though the parties may have consented to them.72
Our view is that Barkhuizen largely renders s 8(2) nugatory. The Constitution applies to
all law and, in the case of the common law (‘the courts’ own law’73), the default
approach of the courts is to assess its constitutionality and to develop it where necessary
by way of the indirect application methodology set out further below. The only
66
S v Thebus 2003 (6) SA 505 (CC) [24]–[32]. See also K v Minister of Safety and Security 2005 (6) SA 419
(CC) [13]–[19].
67
Barkhuizen v Napier 2007 (5) SA 323 (CC).
68
The court noted that different considerations may apply to certain contracts where the state is a party, but did
not elaborate further. Ibid [27].
69
Ibid [24]–[26].
70
Ibid [26].
71
Ibid [28].
72
Ibid [29]–[30].
73
Moseneke J in Thebus (note 66 above) [21].
47
remaining reason to deploy direct horizontal application would be to take advantage of

the holding of the Supreme Court of Appeal in Afrox Healthcare v Strydom to the effect
that courts in direct application cases are not bound by pre-1994 decisions.74
(ii) How to interpret s 8(2)

The Bill of Rights binds private persons in certain circumstances. According to s 8(2), a
provision of the Bill of Rights applies to the conduct of a private person or a juristic
person only to the extent that the provision is applicable, taking into account the nature
of the right and the nature of any duty imposed by the right. In Khumalo the
Constitutional Court had regard to what it described as the ‘intensity of the
constitutional right in question’.75 The meaning of this opaque phrase appears, in
context, to have something to do with the scope of the right: the applicants were
members of the media who are expressly identified as bearers of the constitutional right
to freedom of expression). The second factor considered by the court was the ‘potential
of invasion of that right by persons other than the State’. The result was a holding that
the right to freedom of expression was horizontally applicable in a defamation case.76
In our view, these two factors form part of a broader inquiry consisting of five general
considerations that must be kept in mind when interpreting s 8(2):
1. First, s 8(2) states that a ‘provision’ may apply to private conduct. It does not say
that a ‘right’ may apply to private conduct. It is therefore possible, and quite
74
Afrox Healthcare Bpk v Strydom 2002 (6) SA 21 (SCA). The decision is discussed in para 3.4(b)(iv) further
below. See I Currie ‘Summarizing Proust’ in M Bishop & S Woolman (eds) Constitutional Conversations (2008)
13.
75
Note 59 above. Here is the full passage from Khumalo interpreting and applying the formula in s 8(2) ([33]):
‘In this case, the applicants are members of the media who are expressly identified as bearers of constitutional
rights to freedom of expression. There can be no doubt that the law of defamation does affect the right to freedom
of expression. Given the intensity of the constitutional right in question, coupled with the potential invasion of
that right which could be occasioned by persons other than the state or organs of state, it is clear that the right to
freedom of expression is of direct horizontal application in this case as contemplated by section 8(2) of the
Constitution. The first question we need then to determine is whether the common law of defamation
unjustifiably limits that right. If it does, it will be necessary to develop the common law in the manner
contemplated by section 8(3) of the Constitution’.
For all its significance, this is a particularly baffling paragraph. What does ‘the intensity of the constitutional
right’ mean? Perhaps, it means the force, or strength of the right (taking the phrase literally). But how is that
measured? Preceding this paragraph is a discussion of the right to freedom of expression which might provide a
clue. The right to freedom of expression, the court holds, ‘is integral to a democratic society’, it is ‘constitutive of
the dignity and autonomy of human beings’ ([22]). The media have an important place in a democracy and
freedom of expression is essential to protect that place ([24]). Freedom of expression is ‘fundamental to our
democratic society’ but it is ‘not a paramount value’ ([25]). This appears to indicate that the right to freedom of
expression is sufficiently ‘intense’ (extensive?) to be a candidate for direct horizontal application. It extends, in
other words, to protect the interests of the print media in writing about political figures. Coupled with the
possibility of violation of that right by non-state actors, ‘it is clear that the right to freedom of expression is of
direct horizontal application in this case’. ‘In this case’ is also a troublesome phrase. Does it mean only in this
particular case or, the general case of defamation actions involving the media?
76
Ibid [33]. Direct application is the testing of an allegation that an aspect of the common law is inconsistent
with the Constitution. The question for decision was phrased as follows by the Constitutional Court: ‘whether, to
the extent that the law of defamation does not require a plaintiff in a defamation action to plead that the
defamatory statement is false in any circumstances, the law limits unjustifiably the right to freedom of expression
as enshrined in section 16 of the Constitution’ ([4]). According to the court, since the law of defamation limits the
right to freedom of expression in the interests of protecting the right to dignity, the enquiry entails asking
‘whether an appropriate balance is struck between the protection of freedom of expression on the one hand, and
the value of human dignity on the other’ ([28]). The answer was yes, an answer already reached via an indirect
application of the Bill of Rights in National Media Ltd v Bogoshi 1998 (4) SA 1196 (SCA). See, further, para
16.5(c) in Chapter 16 below.
48
reasonable, that some provisions of the Bill of Rights may apply to the conduct of
a private person or juristic persons while other provisions in the same section (and
pertaining to the same right) will not apply to such conduct. For example, the right
of access to health care services (s 27(1) and (2)) probably does not apply directly
horizontally.77 However, the right not to be refused emergency medical treatment
(s 27(3)) probably does apply horizontally.78 Also, the freedom to make political
choices (s 19(1)) and the right to vote (s 19(3)) may be violated by private conduct,
but the right to free, fair and regular elections only places duties on the state.
2. Second, questions concerning the horizontal application of the Bill of Rights
cannot be determined a priori and in the abstract. Although this is not explicitly
stated, whether a provision of the Bill of Rights applies horizontally also
depends on the nature of the private conduct in question and the circumstances
of a particular case. This explains why s 8(2) states that a provision in the Bill
of Rights binds a natural or juristic person if, and to the extent that, it is
applicable. The extent to which a provision is applicable can only be determined
by reference to the context within which it is sought to be relied upon. For
example, the right of every arrested person to be informed promptly of the right
to remain silent is of a nature that makes it generally inapplicable to private
arrests. But there may be circumstances in which the right should apply to
private arrests. There is no reason why a private security officer, who knows of
the existence of the s 35(1)(a) right or who may reasonably be expected to
know of the right, should not observe it. Conversely, the right to assemble
peacefully and unarmed generally applies on the horizontal level. The right to
assemble in, for example, shopping malls and on the property of an employer is
therefore guaranteed. But in some circumstances it may be inappropriate to
apply the right horizontally. For example, it is unlikely that the right to
assemble can be relied on to justify demonstrations in or in front of someone’s
private home.79
However, a resort to context or the circumstances of a particular case should
not be used to frustrate the clear intention of the drafters of the 1996
Constitution to extend the direct operation of the provisions of the Bill of
Rights to private conduct. It is not permissible to argue, for example, that it is
only when private persons find themselves in a position comparable to the
powerful state, that s 8(2) binds them to the Bill of Rights. It may be that most
private or juristic persons do not have the capacity to infringe human rights in a
manner and on a scale comparable to the state. But any interpretation of s 8(2)
must avoid relying on such generalisations. The subsection was after all
included to overcome the conventional assumption that human rights need only
be protected in vertical relationships.
3. The purpose of a provision is an important consideration in determining whether
it is applicable to private conduct or not. For example, the purpose of the right
77
The reason is that the duty imposed by the right is too burdensome to impose on private individuals. See
Afrox Healthcare Bpk v Strydom 2002 (6) SA 21 (SCA) [15]. The right is instead vindicated indirectly by
legislative interventions and the development of the common law: Liebenberg Socio-Economic Rights 145;
M Pieterse ‘Indirect Horizontal Application of the Right to Have Access to Health Care Services’ (2007) 23
SAJHR 157.
78
See, further, para 26.5(b) in Chapter 26 below.
79
See, further, para 17.3(b)(i) in Chapter 17 below.
49
to leave the Republic (s 21(2)) is, in principle, to prevent the state from keeping
persons captive in their own country. The right to reside anywhere in the
Republic (s 21(3)) is aimed at preventing the state from reintroducing group
areas-style legislation that divides the country into racial zones. It follows that
these rights are not intended to have general horizontal application. On the other
hand, the purpose of the right to human dignity does not necessarily demand
differentiation between state and private conduct. The right is to protect an
individual against assault on his or her dignity from any source, whether private
or public. The proper interpretation of a right in terms of its purpose may
therefore sometimes result in a right not being applicable to private conduct,
either generally or in a particular situation.
4. The nature of any duty imposed by the right must be taken into account. This
recognises that private or juristic persons are often primarily driven by a
concern for themselves. On the other hand, the state is supposed to be
motivated by a concern for the well-being of society as a whole. The
application of the Bill of Rights to private conduct should not undermine private
autonomy to the same extent that it places restrictions on the sovereignty of the
government. This consideration is of particular importance when it comes to the
imposition of duties which entail the spending of money. Since the conduct of
private persons has to be funded from their own pockets, the same duties may
not be imposed on them as can be imposed on an organ of state which relies on
public funds. For example, a private hospital cannot, unlike a state hospital, be
saddled with the duty to provide every child with basic health care services
(s 28(1)(c)).
5. In some instances, indications are found in the Bill of Rights itself as to
whether a particular right may be applied to private conduct or not. Section
9(4), for example, states that ‘no person’ may discriminate directly or indirectly
against anyone on one or more of the grounds listed in s 9(3). Similarly,
s 12(1)(c) is explicitly made applicable to the conduct of private and juristic
persons. The section states that the right to freedom and security of the person
includes the right ‘to be free from all forms of violence from either public or
private sources.’
Subject to the five considerations discussed above, it may be said that the nature of
citizenship rights (ss 20 and 21(3) and (4)); the right to just administrative action (s 33)
and the rights of detained, arrested and accused persons (s 35) generally preclude them
from being directly applied to private conduct. Also, it can be said that the nature of the
positive duties imposed by the right to have legislative and other measures taken to
protect the environment (s 24(b)), to realise the right to housing (s 26), the right to
health care, food, water and social security (s 27) and the right to education (s 29) would
usually result in them not being applicable to private conduct.80 The remaining rights in
the Bill of Rights can, depending on the circumstances of a particular case, be applied
directly horizontally, so as to impose duties on private individuals to conform their
conduct to the Bill of Rights.
80
That is not to say that the negative aspect of these rights (the duty to refrain from interfering with existing
access to social goods) is not horizontally binding. See, further, the discussion in para 26.3(b) in Chapter 26
below.
50
(d) Temporal application of the Bill of Rights

(i) Which Constitution applies?
An unconstitutional law becomes invalid at the moment the Constitution comes into
effect. This is the effect of the supremacy clause of the Constitution: all law and conduct
inconsistent with the Constitution is invalidated by it.81 When making an order of
invalidity a court simply declares invalid what has already been made invalid by the
Constitution. This means that an unconstitutional law in force at the time of
commencement of the interim Constitution is invalidated by the interim Constitution
with effect from 27 April 1994. If the law is challenged in litigation brought during the
period of operation of the 1996 Constitution the invalidity of the law should be assessed
in terms of the interim Constitution.82
The doctrine described above is known as ‘objective constitutional invalidity’. It
means that an applicant will always have a choice between the interim and 1996
Constitutions when challenging old-order (ie, pre-1994) laws. In other words, nothing
prevents an applicant whose cause of action arose after the commencement of the 1996
Constitution came into force from arguing that an old-order law was invalidated by the
interim Constitution. For example, in Prince v President, Cape Law Society83 the
Constitutional Court held, in litigation brought under the 1996 Constitution, held that
the requirement in the Supreme Court Act 59 of 1959 that eleven judges of appeal must
sit in cases in which the validity of an Act of Parliament was in question was
inconsistent with the interim Constitution.84 According to the Constitutional Court, the
quorum requirement in the Supreme Court Act was in conflict with the interim
Constitution, which expressly provided that the Appellate Division lacked jurisdiction to
enquire into the constitutional validity of legislation.85 To the extent that the Supreme
Court Act provided that the Appellate Division had jurisdiction to adjudicate the
constitutionality of Acts of Parliament, it was invalid. Moreover, it had been invalid
since the moment of commencement of the interim Constitution on 27 April 1994.86
Clearly, there is no difficulty with the application of the rule in Prince if the interim
Constitution and 1996 Constitution contain substantively identical provisions. If law in
force at the time of commencement of the interim violates that Constitution it is invalid
with effect from 27 April 1994 and will remain an invalid violation of the 1996
Constitution, notwithstanding the repeal of the interim Constitution by its successor.
Prince however confronts the situation of a law invalidated by a provision of the interim
Constitution that has no equivalent in its successor. The 1996 Constitution granted the
SCA the constitutional jurisdiction that it had been denied under the interim
Constitution, including jurisdiction to adjudicate on the constitutional validity of Acts of
81
Ferreira v Levin NO (note 27 above) [26], [158]. See, further, Chapter 4 below.
82
The interim Constitution came into effect on 27 April 1994. The 1996 Constitution (which repealed its
predecessor) came into effect on 4 February 1997.
83
Prince v President, Cape Law Society 2001 (2) SA 388 (CC).
84
The subsection, inserted by the Appellate Division Quorum Act 27 of 1955, formed part of the notorious
‘court packing’ episode of the 1950s, in which the size of the appellate division was increased from five to eleven
judges to ensure passage of amendments to the Constitution that abolished the non-racial franchise in the Cape
Province. The constitutional crisis of the 1950s is surveyed in Currie & De Waal New Constitutional Law 46–50,
53–4.
85
Prince (note 83 above) [35].
86
Ibid [36].
51
Parliament. Did this mean that s 12(1)(b) was resuscitated? No, according to the
Constitutional Court, though its explanation for this answer is far from clear:
Once section 12(1)(b) became invalid because of its inconsistency with the interim
Constitution, it could not be validated simply by the fact that under the Constitution the SCA
now has constitutional jurisdiction. Section 168(2) of the Constitution which stipulates that
the quorum of the SCA shall be determined by an Act of Parliament must therefore, in the
absence of the proviso in section 12(1)(b), refer, at present, to section 12(1) of the Supreme
Court Act which determines that the ordinary quorum of that Court shall be five judges. This
result is consistent with the new constitutional order. Section 12(1)(b) of the Supreme Court
Act was enacted at a time when the SCA was the highest court of appeal. That is no longer
the case. Its decisions on the constitutionality of an Act of Parliament or conduct of the
President have no force or effect unless confirmed by this Court. Its powers in this regard are
therefore no different from those conferred upon the High Court.87
Despite the court’s evasiveness on the issue, it is probably safe to say that, as a general
rule, a law invalidated by the interim Constitution remains invalid after its repeal,
notwithstanding any substantive difference that there might be in the provisions of the
two Constitutions. This is the logical implication of item 2 of Schedule 6 of the 1996
Constitution: ‘[a]ll law that was in force when the new Constitution took effect,
continues in force. . .’. Repeal of the interim Constitution does not deprive it of the legal
effect that it had while it was in force. One effect was the automatic invalidation of all
inconsistent law. Such law is therefore not in force at the time of the transition to the
1996 Constitution and cannot be resuscitated by it.
Where the interim Constitution is more protective that the final, the implications
of Prince may be significant. For example, an applicant may choose to attack an old
order law for inconsistency with the right to freedom of economic activity (s 26 of
the interim Constitution) rather than relying on the narrower right to professional
freedom (s 22 of the 1996 Constitution).88
Logically speaking, the doctrine of objective invalidity means that in the case of
old-order legislation, invalidity must first be assessed in terms of the interim
Constitution, notwithstanding that the cause of action may have arisen during the
operation of the 1996 Constitution. This, however, does not happen in practice. In Ex
parte Women’s Legal Centre: In re Moise v Greater Germiston Transitional Local
Council (Moise II)89 the court dealt with an application to amend the order that it
had made earlier in Moise v Greater Germiston Transitional Local Council (Moise
I).90 In Moise I, the court had confirmed the declaration of invalidity by a High
Court of s 2(1)(a) of the Limitation of Legal Proceedings (Provincial and Local
Authorities) Act 94 of 1970. The point made by the applicants in Moise II was that
the Limitation Act was pre-constitutional legislation. It was found by the High Court
to be a violation of the right of access to court in s 34 of the 1996 Constitution.
Section 22 of the interim Constitution also contained a right of access to court in all
relevant respects identical to the one in s 34. One would therefore have expected, in
87
Ibid [38].
88
See S v Jordan 2002 (6) SA 642 (CC) [2]–[4]. On the comparative scope of the two provisions see para
22.3(a) in Chapter 22 below.
89
Ex parte Women’s Legal Centre: In re Moise v Greater Germiston Transitional Local Council (Moise II)
2001 (4) SA 1288 (CC).
90
Moise v Greater Germiston Transitional Local Council (Moise I) 2001 (4) SA 491 (CC).
52
the light of the Prince decision, that the subsection had become invalid at the
moment of commencement of the interim Constitution.
The Constitutional Court dismissed the application for an amendment on the basis
that the consistency of the Limitation Act with the interim Constitution had not been
raised or canvassed in the High Court. Arguably, and if properly raised, a court
should consider whether a law should be declared with reference to the interim
Constitution if it survives a challenge under the 1996 Constitution.91
The rules and principles stated above apply to the Bill of Rights and not to the
other provisions of the Constitution.92
(ii) The non-retrospectivity rule

Neither the interim nor the 1996 Constitution is retrospective in its operation. A law is
retrospective if it states that, at a past date, the law shall be taken to have been that which
it was not, so as to invalidate what was previously valid or vice versa. Neither the
interim93 nor the 1996 Constitution94 reaches backward so as to invalidate actions taken
under laws valid at the time, even if those laws were contrary to fundamental rights. The
corollary also holds: the Constitution cannot retrospectively validate actions that were
unlawful in terms of pre-1994 law.95 Also, the Constitution does not interfere with rights
that vested before it came into force.96
The rule that the Constitution does not apply retrospectively affects challenges to
violations of human rights that occurred before the commencement of the Constitution.
Put another way, the rule means that a litigant can only seek constitutional relief for a
violation of human rights by conduct that occurred after commencement.97 As we have
91
See also S v Jordan (note 88 above) in which the Constitutional Court, after holding that the High Court had
erroneously applied the 1996 Constitution to an equality challenge to conduct arising during the period of
operation of the interim Constitution, held that the error was not fatal to the hearing of the appeal by the
Constitutional Court. This was because ‘[t]here is no material difference between the provisions of section 8 of
the interim Constitution and section 9 of the Constitution, both of which deal with discrimination. It therefore
matters not which Constitution was applied by the High Court in reaching its conclusion that . . . [the challenged
legislation] was discriminatory and therefore inconsistent with the Constitution. We [ie, the Constitutional Court
on appeal] can therefore apply the interim Constitution’ ([4]).
92
Johannesburg Metropolitan Municipality v Gauteng Development Tribunal 2010 (6) SA 182 (CC) [28] (a
law passed under the interim Constitution and valid under that Constitution but now invalid due to the changed
allocations of power among the spheres of government in the 1996 Constitution became invalid when the 1996
Constitution came into force).
93
Du Plessis (note 6 above) [13]. According to the Constitutional Court the rule of non-retrospectivity is
subject to a possible exception: ‘we leave open the possibility that there may be cases where the enforcement of
previously acquired rights would in the light of our present constitutional values be so grossly unjust and
abhorrent that it could not be countenanced, whether as being contrary to public policy or on some other basis’
([20]). In Tsotetsi v Mutual and Federal Insurance Company Ltd 1997 (1) SA 585 (CC), O’Regan J stated that
‘Such a case could only arise first, if it was clear that the challenged provision or conduct was a gross violation of
the provisions of the Bill of Rights, and secondly, if there special and peculiar reasons which would suggest that
an order with retroactive effect should be made in a particular case’ ([9]). To date there has been no use of the
exception by the Constitutional Court or any other court: Alexkor Ltd v Richtersveld Community 2004 (5) SA 460
(CC) [35].
94
S v Pennington 1997 (4) SA 1076 (CC) [36] (nothing in the 1996 Constitution which suggests that the
non-retrospectivity rule is no longer applicable, or that it was intended that the 1996 Constitution should have
retrospective application).
95
S v Basson 2005 (1) SA 171 (CC) [36].
96
Tsotetsi (note 93 above) [12]. There is an exception. Both Constitutions provide expressly for their
retroactive application to dispossessions of rights in land that took place after 19 June 1913 (s 121(2) and (3) of
the interim Constitution and s 25(7) of the 1996 Constitution). See Alexkor (note 93 above) [93].
97
See Gardener v Whitaker 1996 (4) SA 337 (CC) [13] (‘the right to freedom of speech [in the interim
Constitution] . . . cannot be invoked as providing a defence to an action for damages founded upon a defamation
53
seen, the implication of the doctrine of objective constitutional invalidity is that on the
date of the Constitution’s commencement, laws that are inconsistent with the
Constitution cease to have legal effect.98 But this does not mean that acts performed and
things done under such (unconstitutional) laws before the Constitution came into force
are also invalid. Since the Constitution does not operate retrospectively, they remain
valid and an applicant who complains about such actions will not be allowed to
challenge the constitutionality of the enabling laws. The constitutional validity of the
enabling law becomes irrelevant since the conduct authorised by the law remains
valid.99
The rule of non-retrospectivity only limits the ‘reach’ of the Bill of Rights. In other
words, it only covers the direct application of the Bill of Rights and it does not prevent
the courts from applying the Bill of Rights indirectly to the law when developing the
common law or interpreting a statute, even if the dispute arose before the
commencement of the Constitution. This is because the post-constitutional development
of the common law or reading down of statutes with reference to the Constitution does
not result in the Constitution working retroactively. Judge-made law is always
retrospective in its operation.100 It must be added however that the Constitutional Court
has not explicitly decided that the rule of non-retrospectivity does not hold for the
indirect application of the Bill of Rights.101
In Du Plessis v De Klerk, the Constitutional Court expressly left open the question
whether a litigant could rely on s 35(3) of the interim Constitution in respect of a
common-law claim which arose prior to the date on which the interim Constitution came
into force.102 Kentridge AJ nevertheless remarked that ‘it may be that a purely
prospective operation of a change in the common law will be found to be appropriate
when it results from the application of a constitutional enactment which does not itself
have retrospective operation’.103 However, in Gardener v Whitaker, Kentridge AJ
seemed to condone the indirect application of the Bill of Rights to the law of defamation
in relation to an alleged defamation that took place before the commencement of the
uttered before the Constitution came into force’); Key v Attorney-General 1996 (4) SA 187 (CC) [6 ](‘none of the
events of which the applicant complains can be said to constitute a breach of any of his rights under the
Constitution. Such rights had not yet come into existence when the events took place. Nor did—nor could—the
subsequent advent of the Constitution, by affording rights and freedoms which had not existed before, render
unlawful actions that were lawful at the time at which they were taken’).
98
National Coalition for Gay and Lesbian Equality v Minister of Justice (note 62 above) [84].
99
See Rudolph v Commissioner of Inland Revenue 1996 (4) SA 552 (CC) [15].
100
Du Plessis (note 6 above) [65].
101
In Brummer v Gorfil Brothers Investments 2000 (2) SA 837 (CC) [5] the court assumed that it could
exercise a discretion to develop the common law retrospectively in appropriate cases. It not clear why the
retrospective development of the common should be a matter of ‘discretion’. Section 39(2) demands such a
development. In Mthembu v Letsela 2000 (3) SA 867 (SCA) [36]–[40] the Supreme Court of Appeal applied the
standard used for direct retroactive application (ie, the previously acquired rights would be considered grossly
unjust and abhorrent in the new order) to an argument for the indirect application of the Bill of Rights to
customary law. Applying the test, the court saw no need to intervene with a rule of customary law that prevented
illegitimate children from inheriting. The decision was overruled in Bhe v Magistrate, Khayelitsha 2005 (1) SA
580 (CC) [98]–[100].
102
Note 6 above [65]–[66]. In Alexkor (note 93 above) the court again left open for future decision the
‘question whether a court, when considering the common law applicable at a time before both the interim
Constitution and the Constitution came into force, may develop the common law in the light of provisions of the
Constitution as provided for by section 39(2) of the Constitution’ ([38]).
103
Note 6 above [66].
54
interim Constitution.104 Similarly, in Key v Attorney-General a search and seizure of

documents had been completed before the interim Constitution came into force. This
meant that the statutory provisions authorising the search and seizure could not be
attacked as violations of the Constitution. Kriegler J nevertheless stated that if the
evidence obtained by way of the search and seizure was tendered in criminal
proceedings against the applicant, he would be entitled to raise Constitution-based
objections to its admissibility.105 While the non-retrospectivity rule prevented the
applicant in Key from challenging the provisions of the Investigation of Serious
Economic Offences Act 117 of 1991 before or during the trial, a discretion to exclude
otherwise admissible evidence could be developed by indirectly applying the Bill of
Rights.
In Masiya106 the Constitutional Court accepted that retrospective consequences
would ordinarily follow from the development of the common law in terms of s 39(2) of
the Constitution. However, it held that on the exceptional facts at issue—the
development of the common-law definition of rape to include anal rape of a
woman—the retrospective development would offend the principle of legality. Legality,
noted the court, included the principle of foreseeability.107 The rules of criminal law had
to be clear so that individuals know which conduct is proscribed by law. The definition
was accordingly held to apply only to conduct taking place after the judgment.108
(iii) Application of the Bill of Rights to matters pending at the date of

commencement
Court proceedings that commenced prior to the coming into effect of the interim or 1996
Constitutions, but that had not yet been finalised when those Constitutions took effect
are governed by item 17 of Schedule 6, which provides that court proceedings that
commenced before the coming into effect of the 1996 Constitution but after the coming
into effect of the interim Constitution must be decided in terms of the interim
Constitution, unless the interests of justice require otherwise.109 Proceedings that
commenced before the coming into effect of the interim Constitution must be dealt with
in accordance with the law in force at the time, unless the interests of justice require
otherwise.110
(e) Territorial application of the Bill of Rights

Though it is obvious that the Constitution applies throughout the national territory it is
less obvious whether it has any extraterritorial application. The question was considered
by the Constitutional Court in Kaunda v President of the Republic of South Africa.111
The case arose from an incident in which the applicants, all South African citizens, had
been arrested in Zimbabwe on charges that they had plotted to stage a coup in
Equatorial Guinea. The applicants sought relief in the form of an order directing the
104
Gardener (note 97 above) [13].
105
Key (note 97 above) [12].
106
Masiya v Director of Public Prosecutions, Pretoria 2007 (5) SA 30 (CC).
107
Ibid [52].
108
Ibid [74].
109
See Osman v Attorney-General, Transvaal 1998 (4) SA 1224 (CC) [7]; S v Jordan (note 88 above) [2].
110
The jurisprudence dealing with this interim provision is dealt with at pp 60–63 of the fifth edition of this
book.
111
Kaunda v President of the Republic of South Africa 2005 (4) SA 235 (CC).
55
South African government to seek assurances from the governments of Zimbabwe and
Equatorial Guinea that the death penalty would not be imposed on the applicants. The
basis of the application was a contention that the applicants’ constitutional rights to a
fair trial, to dignity, life and freedom and security of the person were being infringed in
Zimbabwe and were likely to be infringed if they were extradited to Equatorial Guinea.
The state’s duty to protect the rights of the applicants (stemming from s 7(2)) required
them to be provided with diplomatic protection.
This argument, Chaskalson CJ held for the majority of the court, required acceptance
of the proposition that ‘the rights nationals have under our Constitution attach to them
when they are outside of South Africa, or that the state has an obligation under section
7(2) to ‘‘respect, protect, promote, and fulfil’’ the rights in the Bill of Rights which
extends beyond its borders’.112 According to the court, to the extent that the Constitution
provides the framework for the governance of South Africa it is territorially bound and
has no application beyond the borders of the Republic.113 As for the Bill of Rights,
though foreigners are entitled to require the South African state to respect, protect and
promote their rights they lose the benefit of that protection when they leave the national
territory.114 The argument of the applicant, to the effect that s 7(2) places a more
extensive obligation on the state to respect, protect and promote the rights of South
Africans when they are in foreign countries, was rejected. The bearers of the rights in
the Bill of Rights are people in South Africa and the Bill of Rights does not have general
application beyond the national territory.115
Section 7(1) does not deal with standing, but rather with the definition of the class of
beneficiaries of the rights in the Bill of Rights. It therefore does not bar a foreign litigant
who has a protectable interest in this country, seeking to protect that interest before a
South African court.116
3.4 INDIRECT APPLICATION OF THE BILL OF RIGHTS
(a) General principles

Indirect application means that the Constitution and the Bill of Rights do not directly
bind actors. Instead, the influence of the Bill of Rights is mediated through other law:
statutory or common law. In principle, and where possible, a legal dispute should be
decided in terms of the existing principles or rules of ordinary law, properly interpreted
or developed with reference to the values contained in the Bill of Rights, prior to any
112
Ibid [32].
113
Ibid [36].
114
Ibid.
115
Ibid [37]. The court went on ([44]) to discuss the possibility of ‘special circumstances where the laws of a
state are applicable to nationals beyond the state’s borders’, but held that this was only a permissible under
international law if the application of the law did not interfere with the sovereignty of other states. This would be
the case where there are formal agreements or informal acts of cooperation between states which sanction the one
state’s exercise of jurisdiction in the territory of the other. In such cases, according to the Constitutional Court,
‘questions of sovereignty do not arise and thus nationals affected by their state’s action in a foreign territory may
conceivably invoke the protection of their Constitution’ (fn 31).
See also Lawyers for Human Rights v Minister of Home Affairs 2004 (4) SA 125 (CC) [26] and [27], discussed
in note 15 above.
116
Tulip Diamonds FZE v Minister of Justice and Constitutional Development 2013 (1) SACR 323 (SCA)
[14].
56
direct application of the Bill of Rights to the dispute.117 When it comes to statutory law
the principle simply means that a court must first attempt to interpret legislation in
conformity with the Bill of Rights (indirect application) before considering a declaration
that the legislation is in conflict with the Bill of Rights and invalid (direct
application).118 When it comes to the common law, the principle supports the courts’
routine practice of developing the common law in conformity with the Bill of Rights
(indirect application) in preference to assessing whether the common law is in conflict
with the Bill of Rights (direct application).119
(b) Indirect application to legislation: the duty to interpret legislation in

conformity with the Bill of Rights
(i) Scope of the duty
Since the Bill of Rights binds all the original and delegated law-making actors, it is
always capable of being applied directly to legislation. But, before a court may resort to
direct application and to invalidation, it must first consider indirectly applying the Bill
of Rights to the statutory provision by interpreting it in such a way as to conform to the
Bill of Rights.
Section 39(2) places a general duty on every court, tribunal or forum to promote the
spirit, purport and objects of the Bill of Rights when interpreting any legislation.
Statutory interpretation must positively promote the Bill of Rights and the other
provisions of the Constitution, particularly the fundamental values in s 1.120 In other
words, the legislature is presumed to have intended to further the values underlying the
Bill of Rights by passing legislation that is in accordance with the Bill of Rights, unless
the contrary is established. The duty of courts, tribunals or forums to interpret in
accordance with the Bill of Rights applies even if a litigant has failed to rely on
s 39(2).121 The duty is therefore extensive, ‘requiring courts to be alert to the normative
framework of the Constitution not only when some startling new development of the
117
The principle of avoidance: see S v Mhlungu 1995 (3) SA 867 (CC) [59]; Zantsi v Council of State, Ciskei
1995 (4) SA 615 (CC) [2]–[5]; Ferreira v Levin NO (note 27 above) [199]; S v Bequinot 1997 (2) SA 887 (CC)
[12]. The continued application of the principle under the 1996 Constitution has been confirmed in National
Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC) [21] and Ex parte
Minister of Safety and Security: in re S v Walters 2002 (4) SA 613 (CC) [64]; Nyathi v MEC for the Department
of Health, Gauteng 2008 (5) SA 94 (CC) [149]; Mazibuko v City of Johannesburg 2010 (4) SA 1 (CC) [73]. See,
further, the discussion in para 1.3 in Chapter 1 above and in para 3.5(d) further below.
118
Mazibuko (note 117 above) [73].
119
As we have seen, the correctness of this practice was placed in doubt by the decision in Khumalo (note 59
above) [29]–[34] which seemed to indicate that, where applicable, direct application is the appropriate method of
application to the common law. It now appears that it is not: see the discussion of Barkhuizen v Napier (note 2
above) in para 3.3(c)(i) above.
120
See Hyundai Motor Distributors (note 22 above) [22] (‘purport and objects’ of the Constitution find
expression in the fundamental values identified in s 1); Harksen v President of the Republic of South Africa 2000
(2) SA 825 (CC) [18]: ‘The Constitution is the supreme law of the land. It is unnecessary for legislation expressly
to incorporate terms of the Constitution. All legislation must be read subject thereto.’
121
Phumelela Gaming and Leisure Ltd v Gründlingh 2007 (6) SA 350 (CC) [26]–[27]. The duty applies also
where there is no direct challenge to the constitutional validity of a provision that, prima facie, is a limitation of
rights. The approach is to assume, without deciding, that the limitation is justifiable and to construct the section in
such a way that is least destructive of rights. Laugh it Off Promotions CC v South African Breweries International
(Finance) BV t/a Sabmark International 2006 (1) SA 144 (CC) [48].
57
common law is in issue, but in all cases where the incremental development of . . . [a
common law] rule is in issue.’122
The general duty to promote the Bill of Rights becomes particularly important when
it is possible to avoid an inconsistency between a legislative provision and the Bill of
Rights by interpreting the legislation so that it conforms to the Bill of Rights. Under the
interim Constitution such a process of interpretation became known as ‘reading down’.
According to s 35(2) of the interim Constitution, where legislation was capable of being
read in two ways—as a violation of fundamental rights or, if read more restrictively, as
not violating rights—the latter reading was to be preferred.123 Section 35(2) is not
repeated in the 1996 Constitution, but the courts and other tribunals are still permitted,
and indeed required, to ‘read down’ by virtue of s 39(2). In any event, s 35(3) of the
interim Constitution, which is the predecessor to s 39(2), always encapsulated the notion
of reading down without any need for it to be expressly spelled out in the section.124
The duty to interpret in accordance with the Constitution applies also where two or
more interpretations of a legislative provision are possible. The court must prefer the
reading of a statute that ‘better’ promotes the spirit, purport and objects of the Bill of
Rights, even if neither interpretation would render the provision unconstitutional.125
(ii) Methodology
In Govender v Minister of Safety and Security126 the Supreme Court of Appeal set out a
standard formula for dealing with constitutional challenges to legislation. A judge,
magistrate or presiding officer of a tribunal is required:
(a) to examine the objects and purport of the Act or the section under consideration;
(b) to examine the ambit and meaning of the rights protected by the Constitution;
(c) to ascertain whether it is reasonably possible to interpret the Act or section
under consideration in such a manner that it conforms to the Constitution, ie by
protecting the rights therein protected;
(d) if such interpretation is possible, to give effect to it, and
122
K v Minister of Safety and Security 2005 (6) SA 419 (CC) [17].
123
Section 35(2): ‘No law which limits any of the rights entrenched in this Chapter, shall be constitutionally
invalid solely by reason of the fact that the wording used prima facie exceeds the limits imposed in this Chapter,
provided that such a law is reasonably capable of a more restricted interpretation which does not exceed such
limits, in which event such law shall be construed as having a meaning in accordance with the said more
restricted interpretation.’
124
De Lange v Smuts NO 1998 (3) SA 785 (CC) [85]; Hyundai Motor Distributors (note 22 above) [23].
125
Wary Holdings (Pty) Ltd v Stalwo (Pty) Ltd 2009 (1) SA 337 (CC) [46], [84] and [107].
126
Govender v Minister of Safety and Security 2001 (4) SA 273 (SCA). See also S v Walters (note 117 above)
[26]–[27] (challenges to legislation adjudicated first by determining whether the legislation limits rights; this
entails examining, in the light of s 39(1) and (2) of the Constitution (a) the content and scope of the relevant
protected right(s) and (b) the meaning and effect of the impugned enactment to see whether there is any limitation
of (a) by (b)); S v Thebus 2003 (6) SA 505 (CC) [29]. While the Govender decision only refers to ‘magistrates
and judges’ it must be kept in mind that it is not only courts that may indirectly apply the Bill of Rights, but also
other tribunals and forums. All institutions involved in the resolution of legal disputes must therefore indirectly
apply the Bill of Rights to the law. They must do so to avoid inconsistency between the Bill of Rights and the law,
but they must indirectly apply the Bill of Rights even when there is no conflict between the Bill of Rights and the
law. In other words the duty is a general one and it is not restricted to situations where there is conflict between
the Bill of Rights and the law. In Mkhize v Commission for Conciliation, Mediation and Arbitration 2001 (1) SA
338 (LC) the Labour Court emphasised that the CCMA is a ‘tribunal’ within the meaning of s 39 of the
Constitution and that a commissioner was therefore obliged by s 39(2) to entertain a constitutional argument
relating to the exclusion of evidence obtained in violation of the right to privacy.
58
(e) if it is not possible, to initiate steps leading to a declaration of constitutional

invalidity.127
This power of interpretation, considerable though it is, is not unconstrained. Taken to its
limit, the power to interpret legislation in conformity with the Constitution would mean
that any legislative provision could be made to conform to the Constitution by a suitably
determined exercise of interpretative will. This would make the powers of the courts to
declare legislation invalid superfluous and would deny the legislatures any significant
role in the interpretation of the Constitution. Therefore, according to the Supreme Court
of Appeal, an interpretation of legislation is constrained by the requirement that it must
be ‘reasonably possible’.128 The Constitutional Court earlier expressed the same
qualification in different words in the Hyundai Motor Distributors case: an
interpretation should not be ‘unduly strained’.129
These qualifications can be taken to mean something along the lines of
‘plausible’—the result of the interpretative process must be a reading of the
legislation that is defensible using ‘‘all legitimate interpretive aids’’,130 ie, the
repertoire of justificatory arguments supplied by the law of interpretation of
statutes.131 The process of reaching a plausible, constitutionally-compliant
interpretation entails reading legislation purposively and contextually. If the only
plausible interpretation of a statutory provision is one that entails an infringement of
the Bill of Rights, then the court must proceed to consider whether the infringement
is justifiable. If is not, it must declare the provision unconstitutional.132
(iii) Interpretation in conformity is not confined to the restrictive reading of

legislation
‘Reading down’ should perhaps be avoided as a description of the practice of
interpretation in conformity with the Constitution as it tends to suggest that the practice
always entails reading restrictively. But s 39(2) sometimes requires more than simply
narrowing the ambit of legislation so as to avoid conflict with rights. A narrow
127
Govender (note 126 above) [11].
128
See also Mateis v Ngwathe Plaaslike Munisipaliteit 2003 (4) SA 361 (SCA) (cannot use interpretation to
make a word in a statute mean something different to its clear meaning. The approach must rather be a direct
challenge to the constitutionality of the provision.)
129
Note 22 above [24]. See also Bertie van Zyl (Pty) Ltd v Minister for Safety and Security 2010 (2) SA 181
(CC) [23] (interpretation should not be ‘far-fetched’). See, for example, Fourie v Minister of Home Affairs 2005
(3) SA 429 (SCA) [31] (court declining to interpret words ‘wife’ and ‘husband’ in marriage formula to read
‘spouse’ so as to permit single-sex marriages since it is a substitution of one word for another; if statutory
wording cannot reasonably bear the meaning that constitutional validity requires, it must be declared invalid and
the ‘reading in’ remedy adopted). See also National Coalition (note 117 above) [23]–[24] (word ‘spouse’ cannot
be read down to include same-sex partner; reading down differs from reading-in since the former, being an
interpretative process, is limited to what the text is reasonably capable of meaning). (On reading-in see, further,
para 8.6(a)(ii)(bb) in Chapter 8 below.) Contrast Daniels v Campbell NO 2004 (5) SA 331 (CC) (terms ‘spouse’
and ‘survivor’ reasonably capable of being read down to include Muslim marriages, thereby avoiding unfair
discrimination on grounds of religion). See also S v Bhulwana 1996 (1) SA 388 (CC) (phrase ‘until the contrary
is proved’ cannot reasonably be read to mean ‘unless the evidence raises a reasonable doubt’).
130
National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC) [24];
Bertie van Zyl (Pty) Ltd (note 129 above) [20].
131
But the law of interpretation of statutes (a common-law body of doctrine) must itself be interpreted or
developed to conform to the Constitution. See, generally, L du Plessis The Re-Interpretation of Statutes (2002)
(Constitution has an all-pervasive effect on interpreting statutes, and on the law relating to statutory
interpretation).
132
See, for example, Richter v Minister of Home Affairs 2009 (3) SA 615 (CC) [60], [63].
59
construction of a legislative provision will often have the result of avoiding an alleged
conflict between the provision and the Bill of Rights, for example when discretionary
powers conferred are too wide133 or when the scope of regulation is over-inclusive,134 or
to restrict the impact of changes to the criminal law.135 But, on other occasions, the
statute may have to be generously interpreted to avoid the conflict, for example where
the constitutional invalidity lies in the lack of any express grant of discretionary
power.136 The point is that, if the statutory provision is genuinely ambiguous or
otherwise unclear, the interpretation which best conforms to the Bill of Rights must be
chosen.
Section 39(2) does not have any bearing on the interpretation of the Constitution or
the Bill of Rights; the subsection deals with statutory interpretation only.137
(c) Indirect application of the Bill of Rights to disputes governed by the

common law
(i) The obligation to develop the common law
As we have seen, legislation is approached by first interpreting it with the Constitution
in mind, prior to any direct application of the Constitution (and any finding of
unconstitutionality). In the case of the common law, the approach is similar but not
identical, the difference lying in the remedial powers of the courts. If impugned
legislation is found to limit a right and the limitation does not satisfy the justification
standard in s 36 the court provides a remedy by declaring the legislation unconstitutional
and, where possible, ameliorating the constitutional defect through reading in or
notional or actual severance. ‘In that event’, according to Moseneke J in S v Thebus, ‘the
responsibility and power to address the consequences of the declaration of invalidity
resides, not with the courts, but pre-eminently with the legislative authority’.138 But the
common law is different. It is the law of the courts and not the legislature.
The superior courts have always had an inherent power to refashion and develop the
common law in order to reflect the changing social, moral and economic make-up of society.
133
See Dawood v Minister of Home Affairs 2000 (3) SA 936 (CC) (when a statutory provision confers a broad
discretion upon officials it may inevitably be read down to narrow the discretion, but a court should be slow to do
so if the result would leave officials untrained in law with discretionary power to limit fundamental rights without
legislative guidance).
134
See, for example, South African Police Service v Police and Prisons Civil Rights Union 2011 (6) SA 1 (CC)
(prohibiting all employees of SAPS from striking would be an unjustifiable infringement of the right to strike;
legislation prohibiting persons engaged in an essential service from striking interpreted to include only police
members).
135
S v Acting Regional Magistrate, Boksburg 2011 (2) SACR 274 (CC).
136
See De Beer NO v North-Central Local Council & South-Central Local Council 2002 (1) SA 429 (CC) [24]
(legislation interpreted to confer a discretion on a court not to grant an order of execution against property in
circumstances where the property owner has not been given fair notice).
137
The difference between interpreting the Bill of Rights and legislation has been explained as follows by
George CJ in Zimbabwe Township Developers (Pty) Ltd v Lou’s Shoes (Pty) Ltd 1984 (2) SA 778 (ZS) 783C:
‘One does not interpret the Constitution in a restricted manner in order to accommodate the challenged
legislation. The Constitution must be properly interpreted, adopting the [accepted] approach . . . . Thereafter the
challenged legislation is examined to discover whether it can be interpreted to fit into the framework of the
Constitution.’
138
Note 126 above [30]. The Constitutional Court was unanimous on this issue. See also See Du Plessis v De
Klerk (note 6 above) [63]: ‘The common law, it is often said, is developed on an incremental basis. Certainly it
has not been developed by the process of “striking down”’.
60
That power is now constitutionally authorised and must be exercised within the prescripts
and ethos of the Constitution.139
According to the court, the need to develop the common law under s 39(2) could arise in
at least two instances. The first was when a rule of the common law is inconsistent with
a constitutional provision. Repugnancy of this kind would compel an adaptation of the
common law to resolve the inconsistency. The second possibility was that ‘a rule of the
common law is not inconsistent with a specific constitutional provision but may fall
short of its spirit, purport and objects’. If so, ‘the common law must be adapted so that it
grows in harmony with the “objective normative value system” found in the
Constitution’.140 In a constitutional challenge of the first type the court must perform a
‘threshold analysis’, being whether the rule limits an entrenched right. If the limitation is
not reasonable and justifiable, the court itself is obliged to adapt, or develop the common
law in order to harmonise it with the constitutional norm.141
In its earlier decision in Carmichele, the Constitutional Court emphasised that the
constitutional obligation to develop the common law is not discretionary but is rather
a ‘general obligation’ to consider whether the common law is deficient and, if so, to
develop it to promote the objectives of the Bill of Rights.142 The obligation applied
in both civil and criminal cases, irrespective of whether or not the parties have
requested the court to develop the common law.143
(ii) The methodology of indirect application to the common law

The indirect application of the Bill of Rights to the common law can take many forms.
The first method is to argue for a change in the existing principles of the common law so
that the law gives better effect to Bill of Rights. This argument has been made in the
areas of defamation and restraint of trade.144 In restraint of cases the argument that the
incidence and content of the onus have to be reformed with reference to the s 22 right to
occupational freedom has been less successful.145 The courts have has been less inclined
to reform the principles of the law of contract in a similar manner to the development of
the law of delict.146
The second method is to ‘apply’ the common law with due regard to the Bill of
Rights. This method was employed by Davis AJ in Rivett-Carnac v Wiggins147 Davis AJ
declined to consider the constitutionality of the presumption relating to animus
139
Thebus (note 126 above) [31] (footnotes omitted).
140
Ibid [28], quoting Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC) [56].
141
Thebus (note 126 above) [32].
142
Ibid [33].
143
Ibid [36].
144
The line of defamation cases after Holomisa v Argus Newspapers 1996 (2) SA 588 (W) is surveyed in para
16.5(c) in Chapter 16 below.
145
See the discussion in para 22.4 in Chapter 22 below.
146
Compare Brisley v Drotsky 2002 (4) SA 1 (SCA) (majority resisting the attempt to import good faith as a
free-floating basis for setting aside contractual terms and reacted strongly to the idea of judicial discretion not to
enforce unreasonable or unfair contractual terms) with the post-Carmichele line of ‘duty to protect’ cases
discussed in para 12.1(e) in Chapter 12 below.
147
Rivett-Carnac v Wiggins 1997 (3) SA 80 (C). The technique can also be used to interpret contracts. See
Farr v Mutual & Federal Insurance Co Ltd 2000 (3) SA 684 (C) (interpreting, in the light of the equality clause,
an insurance contract excluding liability of the insurer for injury to ‘a member of the policy holder’s family
normally resident with him’ to include insured’s long-term homosexual partner had been injured in a car accident
while travelling with the insured). See also First National Bank of SA Ltd v Rosenblum 2001 (4) SA 189 (SCA)
[7] (contractual interpretation requires reading the contractual provision in the context of the contract as a whole
61
iniuriandi in defamation cases but clearly took the Bill of Rights into account in
reaching the conclusion that the statements made in this particular case were not
defamatory. Davis AJ held that the ‘boundary between criticising professional work
without reducing such professional’s reputation in the eyes of colleagues and the
publication of defamatory statements about such a professional must be carefully drawn,
particularly in the light of our new constitutional commitments’.148
The third method, which is closely related to the second, is to give constitutionally-
informed content to open-ended common-law concepts, such as ‘public policy’ or
‘contra bonos mores’ or ‘unlawfulness’. This has been held to be the proper approach to
Bill of Rights challenges to contractual provisions. Barkhuizen v Napier149 dealt with a
contractual time-bar clause requiring action to be instituted against an insurer within 90
days of the rejection of an insurance claim. The insured contented that this clause
infringed his right of access to court in terms of s 34. The approach to be adopted to this
contention was to apply a ‘constitutionalised’ conception of the common-law doctrine
of public policy, ie a conception informed by the values given effect to in the Bill of
Rights.150
The analysis then undertaken by the Constitutional Court in Barkhuizen essentially
entailed an application of the test for the validity of legislative time-bar provisions set
out in Mohlomi v Minister of Defence:151 a time-bar provision will unjustifiably limit the
right of access to court if it is unreasonably short and if it is inflexible. If it is an
unjustifiable limitation of s 34, it will be contrary to public policy and unenforceable.
The justifiability of the provision had to be determined in the light of a number of
factors, including the bargaining position of the respective parties and their ability to
enforce their rights.
In Barkhuizen, the court found that the applicant was well-resourced and there was
nothing on the facts to explain why no steps had been taken to enforce his rights at the
earlier stages. Similarly, the facts did not disclose the extent of the bargaining between
the parties prior to the conclusion of the contract. It could not be said, for instance,
whether the insured was in a weak bargaining position and could not influence the terms
of the contract.152
Bredenkamp v Standard Bank of South Africa Ltd153 is an application of the
Barkhuizen methodology. The issue was whether the contractual right of a banker to
close a client’s account was subject to the requirements of fairness. The Supreme Court
of Appeal held that the Constitution does not envisage the duty of fairness to apply in all
contractual settings. Rather, one must consider the specific circumstances of each case
to determine whether a constitutional value is implicated. If not, one cannot complain
about an overarching requirement of fairness: ‘if a contract is prima facie contrary to
constitutional values, questions of enforcement would not arise. However, enforcement
in its commercial setting and against the background of the common law and, now, with due regard to any
possible constitutional implication).
148
Rivett-Carnac (note 147 above) 573D.
149
150
Ibid [29]–[30].
151
Mohlomi v Minister of Defence 1997 (1) SA 124 (CC).
152
Barkhuizen (note 149 above) [64] and [86].
153
Bredenkamp v Standard Bank of South Africa Ltd 2010 (4) SA 468 (SCA).
62
of a prima facie innocent contract may implicate an identified constitutional value. If the
value is unjustifiably affected, the term will not be enforced’.154
This means that fairness is not a self-standing requirement against which contractual
clauses must be assessed. Fairness is part of a matrix of constitutional values, which
inform the interpretation of contracts. Such values are an embodiment of the legal
convictions of the community. The autonomy of individuals to freely conclude contracts
which are binding upon them is also part of the legal convictions of the community.
(iii) Limits on indirect application to the common law

Rule of the common law must be assessed for inconsistency with the Bill of Rights and,
if necessary, developed within the ‘matrix of . . . [the] objective, normative value
system’ established by the Constitution.155 Courts have far more scope to ‘develop’ the
common law by way of indirect application than they have when they ‘interpret’
legislation, where they are bound to a reasonable interpretation of the statute.156 Are
there any limits on the power to develop the common law? The first limitation is that
when the common law is developed it must be done incrementally and on a case by case
basis.157 The development cannot take place in the abstract, but the court must apply the
law as it is found to be in the case before it.158 This approach has also found favour when
the Bill of Rights is directly applied to the common law. Indeed it is even more
important when the Bill of Rights is directly applied because, as we have pointed out,
the consequences of a direct application differ from those of an indirect application. So
for example, in Shabalala v Attorney-General, Transvaal159 the Constitutional Court
was careful, after striking down a common-law rule, to balance the need to provide
guidance and with the danger of being prescriptive. Such care must also be taken when
the Bill of Rights is indirectly applied. Some guidance on the new approach has to be
provided, while room must be left for the courts to develop the principle on a case by
case basis.
One of the most important limitations on the power to develop the common law via
the indirect application of the Constitution is the doctrine of stare decisis. This
limitation is discussed in the following section.
(iv) Stare decisis and indirect application

In Govender v Minister of Safety and Security reading down was employed to hold that
s 49(1)(b) of the Criminal Procedure Act was not unconstitutional. In a subsequent
154
Ibid [47].
155
Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC) [54].
156
In National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 1999 (3) BCLR 280 (C),
289A the High Court held that ‘[i]nterpretation concerns the giving of meaning to words as they appear within
the context of a piece of legislation. A rule of common law may be incompatible with a fundamental right in a
manner which is not amenable to mere interpretative treatment. The rule may then require a development, even a
far-reaching development, in order to render it compatible with the Bill of Rights.’
157
Du Plessis (note 6 above) [63]; Carmichele (note 155 above) [36]; Masiya v Director of Public
Prosecutions, Pretoria 2007 (5) SA 30 (CC) [31]: ‘Courts must be astute to avoid the appropriation of the
Legislature’s role in law reform when developing the common law. The greater power given to the Courts to test
legislation against the Constitution should not encourage them to adopt a method of common-law development
which is closer to codification than incremental, fact-driven development.’
158
Gardener v Whitaker (note 97 above) [16].
159
Shabalala (note 62 above).
63
decision, the Transkei High Court in S v Walters160 confronted with the precedent of the
SCA decision in Govender, held that it did not have to follow it. Appeal court decisions
on the constitutional validity of legislation, according to Jafta AJP, ‘rank in the same
level’ as High Court decisions. The reason is that both decisions had no force unless
confirmed by the Constitutional Court.161 Since, in the view of Jafta AJP, the SCA’s
decision on s 49(1)(b) in Govender was clearly wrong it did not have to be followed by
the High Court and the subsection was struck down to the extent that it permitted the use
of force to prevent a suspect from fleeing.
The High Court’s approach to the issue was repudiated by the Constitutional Court in
the confirmation proceedings:
the trial court in the instant matter was bound by the interpretation put on section 49 by the
SCA in Govender. The judge was obliged to approach the case before him on the basis that
such interpretation was correct, however much he may personally have had his misgivings
about it. High courts are obliged to follow legal interpretations of the SCA, whether they
relate to constitutional issues or to other issues, and remain so obliged unless and until the
SCA itself decides otherwise or . . . [the Constitutional Court] does so in respect of a
constitutional issue.162
But this holding, Kriegler J emphasised, applied only to the binding effect of decisions
of higher tribunals ‘delivered after the advent of the constitutional regime and in
compliance with the requirements of section 39 of the Constitution’.163 The extent of
application of stare decisis to pre-1994 decisions (if this is what ‘the advent of the
constitutional regime’ means) and to direct applications of the Constitution was not
decided.
The subsequent decision of the Supreme Court of Appeal in Afrox Healthcare Bpk
v Strydom164 fills the gap left open by the Constitutional Court. As regards the
binding effect of pre-Constitutional authority of the appeal court there are three
distinct situations that can arise:
(1) Direct application of the Constitution to the common law: ‘the High Court is
convinced that the relevant rule of the common law is in conflict with a provision
of the Constitution’. In such situations pre-Constitutional authority is not binding
on a High Court.165
(2) Pre-constitutional decisions of the appeal court based on open-ended
considerations such as boni mores or public interest. In such situations, the High
Court can depart from earlier authority if convinced, taking the values of the
Constitution into account, that it no longer reflects the boni mores or the public
interest.166
(3) The third situation is that of an indirect application of the Constitution to the
common law, by way of s 39(2). Even if convinced that the rule must be
160
S v Walters 2001 (2) SACR 471 (TkD).
161
Ibid [19].
162
S v Walters (CC) (note 117 above) [61].
163
Ibid. The continued applicability of the doctrine of stare decisis to post-constitutional decisions was
confirmed in Camps Bay Ratepayers’ and Residents’ Association v Harrison 2011 (4) SA 42 (CC) [28]–[29] (a
‘manifestation of the rule of law itself’).
164
Afrox Healthcare Bpk v Strydom 2002 (6) SA 21 (SCA).
165
Ibid [27] (our translation).
166
Ibid [28]. The SCA presumably had cases like Carmichele (note 1 above) in mind.
64
developed to promote the spirit, purport and objects of the Bill of Rights, a
High Court is obliged to follow the authority of pre-constitutional decisions of
the appeal court.167
One can put Afrox and Walters together in the following way:
(1) Post-constitutional decisions of higher courts are binding, whether they are on
constitutional issues or not.
(2) Pre-1994 decisions of higher courts on the common law are binding, except in
cases of direct conflict with the Constitution or in cases involving the
development of open-ended standards such as boni mores.
The distinction between direct and indirect application is therefore crucial to the impact
of the Afrox decision. Section 39(2), the SCA holds, does not authorise lower courts to
depart from higher authority, whether pre- or post-constitutional.168 The subsection
must be read with s 173, recognising the inherent jurisdiction of the High Courts to
develop the common law. It is that power which is exercised when the courts develop
the common law in accordance with s 39(2). But the power has always been constrained
by the doctrine of stare decisis. There is nothing to indicate that the Constitution has
changed this.169
The Afrox and Walters decisions have been strongly criticised.170 There is,
however, a significant omission from the Afrox decision. As we have seen indirect
application in terms of s 39(2) does not only involve development of the common
law, but also statutory interpretation taking the spirit, purport and objects of the Bill
of Rights into account. But the SCA in Afrox seems to confine itself to the first type
of indirect application only. This can be taken to mean that ‘post-Afrox High Courts
still possess the jurisdiction to depart from pre-constitutional statutory interpretations
of the AD’.171 A great deal also turns on the distinction between direct and indirect
application. We have seen that Khumalo v Holomisa172 appears to treat direct
horizontal application as a relatively simple and unexceptional process. If so,
awkward appeal court precedent can easily be sidestepped. A High Court, by opting
for direct application, will be understood to distinguish the case before it from a
precedent arising from indirect application.173
167
Afrox Healthcare (note 164 above) [29].
168
The decision therefore overrules Holomisa v Argus Newspapers (note 144 above) in which Cameron J held
that the equivalent of s 39(2)—s 35(3) of the interim Constitution—‘requires the fundamental reconsideration of
any common-law rule that trenches on a fundamental rights guarantee’ (603).
169
Afrox (note 164 above) [29].
170
S Woolman & D Brand ‘Is there a Constitution in this Courtroom? Constitutional Jurisdiction after Afrox
and Walters’ (2003) 18 SA Public Law 37. The two decisions, the authors note, ‘limit severely the constitutional
jurisdiction of the High Courts’ and ‘could have a deleterious effect on the development of our constitutional
jurisprudence’ (38).
171
Ibid 79.
172
Khumalo v Holomisa 2002 (5) SA 401 (CC).
173
Woolman & Brand (note 170 above) 80. Walters (note 177 above)
also poses interpretative difficulties. It is unclear
whether Kriegler J’s phrases ‘the constitutional era’ and the ‘constitutional regime’ refer to the period
commencing with the interim Constitution in 1994 or the period of operation of the 1996 Constitution. Woolman
and Brand argue convincingly that the latter interpretation makes more sense, both in the context of the Walters
decision as whole and in the context of the different jurisdictional regimes in the two Constitutions. Under the
interim Constitution, the Appellate Division had no jurisdiction to decide ‘constitutional issues’. So, there is little
sense in a High Court hearing a constitutional case being bound by a post-1994 and pre-1997 decision of the AD
that does not engage the Constitution. This is because the absence of engagement is a result of a lack of
65
3.5 THE MANNER OF APPLICATION OF THE BILL OF RIGHTS IN LEGAL DISPUTES
(a) Currency of the distinction between direct and indirect application

Under the 1996 Constitution, there is only one system of law.174 The Constitution
applies to all law, informing its interpretation and development by the courts and
determining its validity.175 This means that the parallel systems of ‘constitutional’ law
and ‘non-constitutional’ law (and ‘constitutional’ and ‘non-constitutional litigation’)
developed under the interim Constitution are no longer theoretically sustainable.
Nevertheless, the distinction between the indirect and indirect methods of application of
the Constitution to the law has not been abandoned and, as we saw in the discussion on
stare decisis above, continues to have some practical significance at least in so far as the
common law is concerned. In what follows the current position as regards the two forms
of application is set out.
(b) Jurisdiction
We have seen that under the interim Constitution, the distinction between direct and
indirect application of the Bill of Rights had important jurisdictional implications. The
interim Constitution distinguished between constitutional matters and other matters and
provided that the Constitutional Court could hear only the former and the Appellate
Division only the latter. In Du Plessis, the Constitutional Court held that indirect
application of the Bill of Rights to the common law was not a constitutional matter and
therefore was within Appellate Division jurisdiction.176 The main task of the
Constitutional Court was to test the validity of the law and state conduct against the
Constitution. In order to trigger the jurisdiction of the Constitutional Court, it was
therefore necessary to show that the Bill of Rights applied directly to the challenged law
or conduct. Whenever the Bill of Rights merely applied indirectly to a dispute, the
Appellate Division and not the Constitutional Court was primarily responsible.
Under the unitary jurisdictional system established by the 1996 Constitution all
superior courts have the power to apply the Constitution directly and indirectly to the
common law.177 This means that the jurisdictional motivation for distinguishing
between direct and indirect application no longer holds for common-law disputes.
However, since decisions of the High Courts and the Supreme Court of Appeal
declaring certain forms of legislation invalid must be confirmed by the Constitutional
Court,178 it remains important for jurisdictional reasons whether legislation is directly
tested against the Bill of Rights or whether it is merely interpreted with reference to the
Bill of Rights.
jurisdiction rather than a principled decision by the AD that the Constitution had no application to the case. Then,
in Du Plessis v De Klerk (note 6 above) the Constitutional Court held that the AD had the jurisdiction to develop
the common law in accordance with the indirect application provisions of s 35 of the interim Constitution. Prior
to this decision, the AD had taken the view that it had no authority to deal with the Constitution at all. This
means, Woolman and Brand suggest, that AD decisions should have binding effect on subsequent courts only if
delivered after the Du Plessis decision in effect conferred indirect application jurisdiction on the AD.
174
Pharmaceutical Manufacturers (note 14 above) [44].
175
Brisley v Drotsky (note 146 above) [88] (Cameron JA): ‘All law now enforced in South Africa and applied
by the courts derives its force from the Constitution. All law is therefore subject to constitutional control, and all
law inconsistent with the Constitution is invalid’.
176
Du Plessis (note 6 above) [63].
177
Section 173. See, further, para 5.3(c)(iv) in Chapter 5 below.
178
Section 172(2)(a). See, further, para 5.4(b) in Chapter 5 below.
66
(c) The purpose and effect of direct application differ from that of indirect
application
The purpose of direct application is to determine whether there is, on a proper
interpretation of the law and the Bill of Rights, any inconsistency between the two. The
purpose of indirect application is to determine whether it is possible to avoid, in the first
place, any inconsistency between the law and the Bill of Rights by a proper
interpretation of the two.179
Direct application of the Bill of Rights generates a constitutional remedy whereas
indirect application does not. The reason for this is that direct application is aimed at
exposing inconsistency between the Bill of Rights and law or conduct. If there is, the
court then declares that law or conduct constitutionally invalid. The effect of such a
declaration, according to Ackermann J and Sachs J in Du Plessis,180 is to restrict the
legislature’s options in amending the law or enacting a similar law. Much depends of
course on the terms of the court’s order and its reasoning and the application of the
doctrine of stare decisis, but as a general rule direct application rules out certain
possibilities as constitutionally impermissible. whereas an indirect application merely
proposes a construction of the law that conforms to the Constitution. Although there is
therefore a difference in principle between direct and indirect application, the problem
alluded to by Ackermann J and Sachs J also depends on the extent to which a court is
prepared to ‘pronounce on the meaning’ of the Constitution. Courts generally avoid
making extensive pronouncements on what the Constitution demands the common law
to be, whether they apply the Bill of Rights directly or indirectly. The preferred
approach is to give narrow rulings limited to the facts before the court. Such orders will
preserve considerable space for the legislature to reform the common law.181 Direct
application, however, inevitably rules out certain options. When a law or conduct is
ruled to be inconsistent with the Constitution it can no longer form part of the law. The
scope of the limitation on the legislature’s discretion will therefore depend on the extent
of the court’s ruling.
That said, there is little practical difference between the two forms of application
when it comes to the common law. This is because, though notionally methodologically
distinct, direct and indirect application of the Bill of Rights end up at the same point: the
need to develop rules of the common law in conformity with the Bill of Rights.
There are only a few common-law cases where the method of application is likely to
make a substantive difference to the result. These are cases in which a plaintiff cannot
find a cause of action in the existing common law. Since the common law does not
provide a right it will be necessary to invoke directly a right in the Bill of Rights.182
179
The Bill of Rights can only be indirectly applied to law. This is because conduct, whether it is state conduct
or private conduct, is either valid or invalid and cannot be ‘interpreted’ or ‘developed’ to avoid any inconsistency
with the Bill of Rights.
180
Du Plessis (note 6 above) [111] (Ackermann J) and [179] (Sachs J). The same point was made by
Ackermann J in National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC)
[87]: ‘It should also be borne in mind that whether the remedy a Court grants is one striking down, wholly or in
part; or reading into or extending the text [of a statute], its choice is not final. Legislatures are able, within
constitutional limits, to amend the remedy, whether by re-enacting equal benefits, further extending benefits,
reducing them, amending them, ‘fine-tuning’ them or abolishing them’. (Emphasis added.)
181
Carmichele (note 1 above) [36]: ‘In exercising their powers to develop the common law, judges should be
mindful of the fact that the major engine for law reform should be the legislature and not the judiciary’.
182
J van der Walt ‘Progressive Indirect Horizontal Application of the Bill of Rights: Towards a Co-operative
Relation between Common-law and Constitutional Jurisprudence’ (2001) 17 SAJHR 341, 352–353. But this
67
(d) Indirect application must be considered before direct application

In S v Mhlungu,183 Kentridge AJ stated:
I would lay it down as a general principle that where it is possible to decide any case, civil or
criminal, without reaching a constitutional issue, that is the course which should be
followed.184
This statement was subsequently approved by the unanimous court in Zantsi v Council
of State, Ciskei.185 In this case, Chaskalson P referred to the ‘salutary rule’ which is
followed in the United States ‘never to anticipate a question of constitutional law in
advance of the necessity of deciding it’ and ‘never to formulate a rule of constitutional
law broader than is required by the precise facts to which it is to be applied’.186 This
rule, Chaskalson P added,
allows the law to develop incrementally. In view of the far-reaching implications attaching
to constitutional decisions, it is a rule which should ordinarily be adhered to by this and all
other South African Courts before whom constitutional issues are raised . . . it is not
ordinarily desirable for a Court to give rulings in the abstract on issues which are not the
subject of controversy and are only of academic interest . . . .187
There are several reasons for observing this ‘salutary rule’ under the South African
Constitution. The first is procedural. The interim Constitution contained complicated
provisions governing the referral of a constitutional issue to the Constitutional Court
where that issue was beyond the jurisdiction of the Supreme Court. A referral was, for
example, necessary whenever the constitutionality of an Act of Parliament was in
dispute.188 The statements in Mhlungu and Zantsi were meant to deter the divisions of
the Supreme Court from referring irrelevant issues or issues that were within their
jurisdiction to the Constitutional Court. Since the system of referrals has now been
replaced by a wider High Court jurisdiction and a system of appeals,189 this justification
should no longer carry the same weight. However, it would be wrong to conclude that
the justification did not survive the changes in constitutional jurisdiction brought about
conclusion depends on a particular conception of the purpose of indirect application and its limits. Indirect
application means that the Bill of Rights is applied to the conduct of litigants through the mediating influence
(mittelbare Drittwirkung) of a rule or principle of common law. If there is no rule or principle (if there is a gap in
the common law), then there is nothing that can mediate between the Bill of Rights and the conduct of the
litigants. But there is nothing to suggest, Van der Walt argues, that the ‘development’ of the common law required
by s 39(2) does not include the filling of gaps to ensure conformity with the Bill of Rights (at 354). So conceived,
the distinction between direct and indirect application of the Bill of Rights to the common law is reduced to ‘a
choice between two vocabularies, one which does not shy away from directly invoking constitutional principles
within the context of the common law, and one that prefers to let common-law principles themselves perform the
required mediation between existing law and the constitutional challenges to such law’ (355). The latter
vocabulary is preferable in principle, according to Van der Walt. In our view, it is also mandated by the principle
of avoidance, discussed immediately below.
183
S v Mhlungu 1995 (3) SA 867 (CC).
184
Ibid [59].
185
Zantsi v Council of State, Ciskei 1995 (4) SA 615 (CC) [8].
186
Ibid [2].
187
Ibid [5] and [7].
188
See s 102(1) of the interim Constitution. The Supreme Court could also refer constitutional issues to the
Constitutional Court that had arisen in matters decided by the Supreme Court but that were considered to be of
pressing public interest.
189
68
by the 1996 Constitution and the abolition of referrals.190 It remains an important factor
when considering applications for direct access to the Constitutional Court and
applications for leave to appeal using the ‘leapfrog’ appeal procedure. 191 It also informs
the doctrine of justiciability, particularly the principles that courts should not decide
moot cases or cases that are not ripe for judicial resolution.192
There are also substantive reasons for observing the rule.193 Courts should avoid
making pronouncements on the meaning of the Constitution where it is not necessary
to do so, so as to leave space for the legislature to reform the law in accordance with
its own interpretation of the Constitution. Lengthy expositions of the Constitution
may result in actual or perceived restrictions on the legislature—a ‘constitutional
straitjacket’—which makes it difficult for the legislature to respond to changing
circumstances. The courts, and particularly the Constitutional Court, are not the only
interpreters of the Constitution. They are, however, its final and authoritative
interpreters. Before pronouncing on the meaning of the Constitution the courts
should allow other organs of the government the opportunity to interpret and give
effect to the Constitution. Practically, this means that the legislature should be given
the opportunity to address an issue before a court decides on it. The legislature and
the executive are better equipped to ascertain the needs of society and to respond to
those needs. Once such a response finds expression in legislation, courts may then
test the legislation against the provisions of the Bill of Rights. Even then, the
Constitutional Court (the final court in constitutional matters) often seeks to avoid
ruling on the constitutionality of a statutory provision until trial and appeal court
judges have expressed their views on the effect of the provision and the likely
consequences of invalidating it.194 It is sound judicial policy to decide only that
which is demanded by the facts of a case and that is necessary for its proper
disposition; this allows constitutional jurisprudence to develop incrementally.195
When applying the Bill of Rights in a legal dispute, the principle of avoidance is
of crucial importance. As we have seen, the Bill of Rights always applies in a legal
dispute. It is usually capable of direct or indirect application and, in a limited
number of cases, of indirect application only.196 The availability of direct application
is qualified by the principle that the Bill of Rights should not be applied directly in a
legal dispute unless it is necessary to do so. The principle has a number of important
consequences.
190
On the applicability of the principle under the 1996 Constitution see Ex parte Minister of Safety and
Security: in re S v Walters 2002 (4) SA 613 (CC) [64] and [65]; S v Dlamini 1999 (4) SA 623 (CC) [27]: ‘as a
matter of judicial policy, constitutional issues are generally to be considered only if and when it is necessary to do
so’. See also n 6 (‘under both Constitutions, cases are resolved on constitutional grounds only where it is
necessary to do so’).
191
MEC for Development Planning and Local Government, Gauteng v Democratic Party 1998 (4) SA 1157
(CC) [32]: ‘Where there are both constitutional issues and other issues in the appeal, it will seldom be in the
interests of justice that the appeal be brought directly to this Court’. See, further, para 5.4(c) and para 5.4(d) in
Chapter 5 below.
192
See, further, para 4.3 and para 4.4 in Chapter 4 above.
193
Reasons can also be found in political philosophy. See I Currie ‘Judicious Avoidance’ (1999) 15 SAJHR
138.
194
See Kriegler J in S v Bequinot 1997 (2) SA 887 (CC) [13]–[14].
195
Albutt v Centre for the Study of Violence and Reconciliation 2010 (3) SA 293 (CC) [82].
196
Ie, horizontal cases in which direct horizontal application is, in terms of s 8(2), inapplicable.
69
1. Even when the Bill of Rights applies directly, a court must apply the provisions of
ordinary law to resolve the dispute, especially in so far as the ordinary law is
intended to give effect to the rights contained in the Bill of Rights. Many recent
statutes, such as the Labour Relations Act 66 of 1995 and the Equality and
Administrative Justice Acts are intended to implement the Bill of Rights.197 They
must first be applied, and if necessary interpreted generously to give effect to the
Bill of Rights, before a direct application is considered.198
The same applies to disputes governed by the common law. The ordinary
principles of common law must first be applied, and if necessary developed with
reference to the Bill of Rights, before a direct application is considered.199
2. When the Bill of Rights is directly applied in disputes governed by legislation,
conduct must be challenged before law.200 In other words, the implementation
of the statute must be challenged before the provisions of the statute itself.201
However, to complicate matters further, the principle that constitutional issues should be
avoided is not an absolute rule.202 It does not require that litigants may only directly
invoke the Constitution as a last resort. As with many legal principles, its force depends
on the circumstances of the case. Where the violation of the Constitution is clear and
directly relevant to the matter, and there is no apparent alternative form of ordinary
relief, it is not necessary to waste time and effort by seeking a non-constitutional way of
resolving a dispute. This will often be the case when the constitutionality of a statutory
provision is placed in dispute because, apart from a reading down, there are no other
197
See Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) [99] where Kriegler J remarked, in the
context of constitutional remedies, that ‘It would undermine the best efforts of the Legislature to exclude [the
remedies contained in such laws] from a court’s arsenal of remedial options’.
198
See S v Dlamini (note 190 above) [7] (the Criminal Procedure Act is the primary source to be consulted in
looking for a specific answer to any bail question).
199
Amod v Multilateral Motor Vehicle Accidents Fund 1998 (4) SA 753 (CC) [26].
200
Van Rooyen v S (General Council of the Bar of South Africa Intervening) 2002 (5) SA 246 (CC) [87]–[88]
is, in our view, support for both the proposition that the indirect application must be considered before direct
application and that the constitutional validity of conduct or decisions implementing law must be considered
before the validity of the law itself.
201
Legislation may either be ‘facially’ inconsistent with the Bill of Rights or the effect of the legislation may
violate the Bill of Rights. New National Party of South Africa v Government of the Republic of South Africa 1999
(3) SA 191 (CC) [18]. As far as effects are concerned, it must be carefully considered whether the impermissible
effects are caused by the legislative provision itself, or by the way it is implemented or enforced. The legislation
may only be challenged in the former instance, while in the latter instance it is the conduct of the administrators
of the legislation that must be challenged. Any power vested by a law in a functionary is capable of being abused.
That is not a matter to be taken into consideration in assessing the constitutionality of the grant of the power. The
exercise of the power is subject to constitutional control and should the power be abused the remedy lies there
and not invalidating the empowering statute. Van Rooyen v S 2002 (5) SA 246 (CC) [37].
202
See S v Mokoena 2008 (5) SA 578 (T) where the following guidelines were enunciated in cases where a
court departs from the principle of avoidance:
1. Whether the determination of a constitutional issue is necessary for the determination of the
non-constitutional issue;
2. The attitude of the parties to the approach proposed by a court. In the present matter, all the parties agreed
that the constitutional issues could be determined in advance;
3. Whether the correctness of the convictions could be properly determined without an enquiry into the
constitutional issues at stake; and
4. Whether there was any public interest in the matter. In this regard, the High Court took into consideration
the fact that its decision could have an impact on other similar cases pending before other courts.
70
remedies available to a litigant affected by the provision. On the other hand, the
principle of avoiding constitutional issues is particularly relevant when the interest of an
applicant in the resolution of a constitutional issue is not clear, and where the issue is not
ripe for decision or when it has become academic or moot.203
203
See, further, para 4.3 and para 4.4 in Chapter 4 below.
71
Chapter Four
Justiciability
4.1 Limitations on justiciability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
4.2 Standing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
(a) Introduction: a broad approach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
(b) The implications of the doctrine of objective constitutional
invalidity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
(c) The allegation that a fundamental right has been infringed or
threatened . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
(d) Sufficient interest and the categories of persons . . . . . . . . . . . . . . . . . . 78
(i) Persons acting in their own interest . . . . . . . . . . . . . . . . . . . . . . . . . 80
(ii) Persons acting on behalf of another person. . . . . . . . . . . . . . . . . . 80
(iii) Persons acting as a member of a group or class of persons. . 81
(iv) Persons acting in the public interest . . . . . . . . . . . . . . . . . . . . . . . . . 83
(v) Associations acting in the interest of their members . . . . . . . . 84
4.3 Ripeness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
4.4 Mootness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
(a) General principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
(b) Exceptions to the mootness doctrine in the interests of justice . . . 88
4.1 LIMITATIONS ON JUSTICIABILITY

Not every constitutional argument raised by a litigant will be heard by the courts. The
limitations on the constitutional issues that courts will hear are governed by two
conceptually distinct but overlapping bodies of doctrine. The first is the doctrine of
justiciability, dealt with in this chapter.1 The second is the body of rules and principles
of jurisdiction, dealt with in the following chapter.
There are three principal sets of rules and principles that can be grouped under the
broad heading of ‘justiciability’. They are standing, which relates to the relationship
between the applicant in a case and the particular relief sought, and ripeness and
mootness, which relate to the timing of the application. All can be understood as
elaborations of a more fundamental principle that the courts should decide only cases
entailing a ‘real, earnest, and vital controversy’2 between litigants and not entertain
merely ‘hypothetical’ cases, or cases that are only of ‘academic’ interest. This principle
is, in turn, generated by the higher-level principle of avoidance. This is the idea that the
judicial resolution of constitutional issues should only take place as a matter of last
1
See the useful comparative survey by C Okpaluba ‘Justiciability and Constitutional Adjudication in the
Commonwealth’ 2003 (66) THRHR 424 and 610.
2
Ashwander v Tennessee Valley Authority 297 US 288 (1936) (Brandeis J).
72
Justiciability 4.1–4.2
resort and that decisions should be taken only on those issues that the facts of a case
require to be decided.
4.2 STANDING
ENFORCEMENT OF RIGHTS
38. Anyone listed in this section has the right to approach a
competent court, alleging that a right in the Bill of Rights has been
infringed or threatened, and the court may grant appropriate relief,
including a declaration of rights. The persons who may approach a
court are:
(a) Anyone acting in their own interest;
(b) anyone acting on behalf of another person who cannot act in their
own name;
(c) anyone acting as a member of, or in the interest of, a group or
class of persons;
(d) anyone acting in the public interest; and
(e) an association acting in the interest of its members.
(a) Introduction: a broad approach

Standing concerns whether someone who approaches a court is the appropriate person to
present the matter to the court for adjudication. Under the common law, the South
African courts took a restrictive approach to standing. A person who approached a court
for relief was required to have a direct interest in the subject matter of the litigation, in
the sense of being personally adversely affected by the alleged wrong.3 The plaintiff or
applicant must therefore allege that his or her own rights have been infringed. It is not
enough for the plaintiff to allege that the defendant has infringed the rights of someone
else, or that the defendant is acting contrary to the law and that it is in the public interest
for the court to grant relief.
The approach to standing in Bill of Rights matters contrasts radically with the
common-law approach.4 Effective enforcement of the Bill of Rights demands a broader
approach to standing. Such an approach is expressly provided for in s 38 and in the
interpretation of this provision by the Constitutional Court. In Ferreira v Levin NO,5
Chaskalson P held that, though it is important that the courts should not be required to
deal with abstract or hypothetical issues and that they should devote their resources to
issues properly before them, this did not mean that a narrow approach should be taken to
the issue of standing in constitutional cases. On the contrary, according to Chaskalson P,
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
3
Jacobs v Waks 1992 (1) SA 521 (A), 533J–534E.
4
Lawyers for Human Rights v Minister of Home Affairs 2004 (4) SA 125 (CC) [14].
5
73
entitled. Such an approach would also be consistent in my view with the provisions of s 7(4)
of the [interim] Constitution.6
When an applicant alleges that a right in the Bill of Rights has been infringed or
threatened, s 38 may be directly relied on to obtain standing. In such matters, the
common law of standing and any legislative requirements are irrelevant. If standing in
constitutional cases depended on the common law or legislation, the legislature could
use standing restrictions as a form of ouster, impeding attempts to enforce the
Constitution.7 Moreover, to the extent that the common law or legislation restricts
standing to enforce rights in the Bill of Rights, it is inconsistent with s 38 and invalid.
Section 38 only applies in cases where a litigant alleges that a right in the Bill of
Rights has been infringed or threatened.8 It does not apply when there is an
allegation that a provision of the Constitution outside the Bill of Rights has been
infringed or threatened.9 It also will not apply when the Bill of Rights is indirectly
invoked in terms of s 39(2), that is to support an argument for the development of
the common law or the reading down of a statute.10
However, in the unitary legal system established by the 1996 Constitution, the gap
between the restrictive common-law standing doctrine and the generous approach to
standing in direct Bill of Rights cases is unsustainable and will have to be closed.
This is self-evident in public-law litigation, given the ‘constitutionalisation’ of the
rules and principles relating to the judicial review of the exercise of public power.11
6
Ibid [165]. The standing provisions of the interim Constitution (s 7(4)(a) and (b)) are substantively identical
to s 38 of the 1996 Constitution.
7
In Prior v Battle 1999 (2) SA 850 (Tk), the applicant challenged sections of the Transkei Marriage Act 21 of
1978 which gave her husband marital power over her. The effect of the marital power was that the applicant had
no standing to institute legal proceedings without the assistance of her husband or without a venia agendi being
granted by the court. The court rejected the absurd argument that, in order to challenge the constitutionality of the
restrictions placed on her legal capacity by the Act, the applicant had to comply with the restrictive standing
requirements of the very law she challenged (857C–F).
8
See Van Huysteen NO v Minister of Environmental Affairs and Tourism 1996 (1) SA 283 (C); Port Elizabeth
Municipality v Prut NO 1996 (4) SA 318 (E).
9
New National Party of South Africa v Government of the Republic of South Africa 1999 (3) SA 191 (CC)
[106]. The court added, however, that it would be willing in an appropriate case to relax the ordinary rules of
standing when dealing with constitutional matters outside the Bill of Rights. In Kruger v President of the
Republic of South Africa 2009 (1) SA 417 (CC) [23] the court applied a ‘generous’ approach to standing of an
applicant in a non-Bill of Rights case. The applicant was an attorney specialising in Road Accident Fund matters.
He sought confirmation of orders of invalidity of proclamations bringing legislation amending the Road Accident
Fund Act 56 of 1996 into effect. Though the applicant would not have had sufficient direct personal interest in the
subject-matter of the litigation on the common-law standard, on an ‘expanded understanding of what constitutes
a direct and personal interest’, he did [24].
The principal difference that s 38 makes in Bill of Rights cases is its expansion of the categories of persons
who may approach a court for relief. See Ferreira (note 5) [167]. In non-Bill of Rights matters, an applicant will
not be entitled to act ‘on behalf of another person’ or ‘in the public interest’. In such matters, applicants will
always have to demonstrate a sufficient interest of their own. In Kruger (above) the court left open the question
whether a non-Bill of Rights litigant is entitled to act in the public interest [27]. The question was answered
affirmatively in Freedom Under Law v Acting Chairperson: Judicial Service Commission 2011 (3) SA 549 (SCA)
[19]–[21] (NGO could rely on public interest standing to challenge decision of JSC as a contravention of s 165(4)
of the Constitution and the Promotion of Administrative Justice Act).
10
The reason is that a matter involving indirect application of the Bill of Rights does not, strictly speaking,
involve an ‘infringement’ or ‘threat’ to a right in the Bill of Rights. On indirect application, see Chapter 3 above.
11
Bio Energy Afrika Free State v Freedom Front Plus 2012 (2) SA 88 (FB) [15], [18] (standing in terms of s 38
of the Constitution available in cases challenging violations and threats to all the rights, obligations, values and
principles in the Constitution committed by public bodies or public officials; it makes no difference that a private
person or entity may also be adversely affected by the relief sought); Democratic Alliance v Acting National
Director of Public Prosecutions 2012 (3) SA 486 (SCA) [44]–[45] (political party had own-interest and
74
Justiciability 4.2
It has been held that the provisions of s 38 must be read into the Promotion of
Administrative Justice Act.12
In private-law litigation, the absence of a public interest will in some, but not
all,13 cases justify the retention of the usual rules. However, in delict cases, the
distinction between direct and indirect application of the rights to dignity, privacy
and to freedom from violence is increasingly eroding, with the implication that it is
artificial to apply the constitutional standing requirements to the former type of
application and the common-law requirements to the latter.14
It is clear that the Bill of Rights has introduced a far more generous approach to
the requirement of standing than the common law. However, broad as the approach
to standing in rights matters may be, it still has limits. The standing requirements are
discussed in detail below.
public-interest standing to review legality of decisions of the NPPP).

See also Ngxuza v Permanent Secretary, Department of Welfare, Eastern Cape 2001 (2) SA 609 (E),
618E–619F. See also Permanent Secretary, Department of Welfare, Eastern Cape v Ngxuza 2001 (4) SA 1184
(SCA) [22]. See A Kok ‘Has the Supreme Court of Appeal Recognized a General Class Action in South African
Law?’ 2003 (66) THRHR 158. See also Eagles’ Landing Body Corporate v Molewa NO 2003 (1) SA 412 (T)
(constitutional considerations motivating a reading of the words ‘any person’ in the standing provisions of
environmental legislation to include a body corporate established in terms of the Sectional Titles Act 95 of 1986);
Highveldridge Residents’ Concerned Party v Highveldridge TLC 2002 (6) SA 66 (T) [20]–[24] (reconsideration
of common-law rules relating to standing of unincorporated voluntary association). But see, contra, Transvaal
Agricultural Union v Minister of Agriculture & Land Affairs (1) 2003 (4) SA 397 (LCC) (a court’s function is not
to give legal advice; an ‘interested person’ entitled to apply for declaratory relief in terms of the Restitution of
Land Rights Act 22 of 1994 is a person with a direct and real interest in the question of law enquired into). The
Land Claims Court subsequently awarded leave to appeal this holding to the Supreme Court of Appeal on the
basis that, if reliance could be made on appeal on s 38 of the Constitution, the SCA may well interpret the
legislation less restrictively: Transvaal Agricultural Union v Minister of Agriculture & Land Affairs (2) 2003 (4)
SA 411 (LCC). In Transvaal Agricultural Union v Minister of Agriculture & Land Affairs (SCA 23 March 2005,
unreported) the appeal was decided without considering this issue.
12
Giant Concerts CC v Rinaldo Investments (Pty) Ltd 2013 (3) BCLR 251 (CC) [29]. However, the
requirement that, to constitute administrative action, a decision must adversely affect rights has the effect that an
own-interest litigant must show that the decisions it seeks to attack had the capacity to affect its own legal rights
or its interests [30]. Presumably, a public-interest litigant would have to make the same showing in respect of the
public interest. But where a litigant acts solely in his or her own interest, ‘there is no broad or unqualified
capacity to litigate against illegalities. Something more must be shown’ [35].
13
Common-law standing requirements are at least partially motivated by the desire to prevent people from
meddling with the affairs of others. After all, why should A be entitled to know if X acted in breach of his contract
with Y? But the same considerations do not apply in those cases where applicants challenge the validity of a law,
or argue for its development in accordance with constitutional values. It is everyone’s business to know whether
the law as it stands is constitutionally valid, since everyone is obliged to obey it. According to O’Regan J in
Ferreira (note 5) [229], ‘Existing common-law rules of standing have often developed in the context of private
litigation. As a general rule, private litigation is concerned with the determination of a dispute between two
individuals, in which relief will be specific and, often, retrospective, in that it applies to a set of past events. Such
litigation will generally not directly affect people who are not parties to the litigation. In such cases, the plaintiff
is both the victim of the harm and the beneficiary of the relief. In litigation of a public character, however, that
nexus is rarely so intimate. The relief sought is generally forward-looking and general in its application, so that it
may directly affect a wide range of people. In addition, the harm alleged may often be quite diffuse or
amorphous.’ Compare however Davis J in McCarthy v Constantia Property Owners’ Association 1999 (4) SA
847 (C), 855B–E (since the Bill of Rights now applies horizontally, it clearly envisages a generous regime of
access to courts even in private litigation where fundamental values, such as the protection of the environment,
were at stake); Financial Services Board v De Wet NO 2002 (3) SA 525 (C) [297] (trend towards a more liberal
approach to questions of standing can be extended to cases not involving the enforcement of constitutional rights;
public official has standing to act in the interests of members of a pension fund in litigation against the fund).
14
See Rail Commuters Action Group v Transnet t/a Metrorail 2003 (5) SA 593 (C) which has the appearance
of an indirect application case but which uses s 38 to justify departure from the common-law’s formal
requirements for litigation brought by voluntary associations.
75
(b) The implications of the doctrine of objective constitutional invalidity

In Ferreira, the Constitutional Court was required to decide whether an examinee in a
liquidation enquiry could challenge a provision in the Companies Act on the basis of the
fair trial rights afforded to ‘accused persons’. The answer to this question turned on the
interpretation of s 7(4) of the interim Constitution15 which closely corresponds to s 38 of
the 1996 Constitution.
According to Ackermann J, s 7(4)(a) of the interim Constitution (the equivalent of the
first paragraph of s 38 of the 1996 Constitution) placed a qualification on the ability of
the categories of persons defined in s 7(4)(b) to approach the courts. In other words,
persons who acted in their own interest had to allege that one of their fundamental rights
had been infringed or threatened. Or, a person acting on behalf of another person had to
allege that a fundamental right of the other person was under threat or was infringed.
Since the examinees in a Companies Act enquiry are not accused persons and since they
sought to challenge legislation in their own interest, they were precluded, on Ackermann
J’s interpretation, from relying on the rights of accused persons to a fair trial.16 They
could, however, rely on their right to freedom, the benefit of which was not restricted to
the category of accused persons.17
The majority of the court (7–4 on this point) disagreed with the approach of
Ackermann J and committed itself to a much broader approach to standing in
constitutional cases.18 Chaskalson P, for the majority, held that the applicants’ desire to
secure a ruling on the constitutionality of s 417(2)(b) of the Companies Act could not be
15
Section 7(4) of the interim Constitution provided: ‘(a) When an infringement of or threat to any right
entrenched in . . . Chapter [3] is alleged, any person referred to in paragraph (b) shall be entitled to apply to a
competent court of law for appropriate relief, which may include a declaration of rights. (b) The relief referred to
in paragraph (a) may be sought by—
(i) a person acting in his or her own interest;
(ii) an association acting in the interest of its members;
(iii) a person acting on behalf of another person who is not in a position to such relief in his or her own name;
(iv) a person acting as a member of or in the interest of a group or class of persons; or (v) a person acting in the
public interest.’
16
Ferreira (note 5 above) [34]–[41]. Sachs J ([248]) agreed with Ackermann J on this point. According to
Sachs J, one did not know whether the examinees were ever going to become ‘accused’ persons and to talk about
their fair trial rights being threatened at the time of examination was premature. The approach of O’Regan J
([223]–[237]) comes very close to that of Ackermann J and Sachs J. She held that the applicants in Ferreira had
not demonstrated a threat to their own rights or those of other persons, but was prepared to accommodate them
under the provision which allows a person to allege the violation or threat of a fundamental right in ‘the public
interest’. Despite the ostensible support from the text of the interim Constitution, the views of these judges on
standing (described as the issue of ‘justiciability’ by Ackermann J, [34]–[41]) cannot be accepted. One problem
with their approach is that it allows an applicant standing to rely on one right, but disallows that same applicant
standing to rely on another right. Or, to use the terminology of Ackermann J, the issue is ‘not justiciable’ when
the applicant relies on right A, but becomes so when the applicant relies on right B. Or, the issue may not be
justiciable if right A is given a narrow interpretation but becomes so if right A is given a generous interpretation.
This approach is not correct. The scope of a fundamental right cannot affect issues such as standing or ripeness.
Standing turns on the subjective interest of the applicant or the ripeness of the issue in a particular matter.
Interpretation, on the other hand, is an objective enquiry and focuses on the scope of the right and whether or not
the law or conduct conflicts with this right. The scope of a particular right is as immaterial to the issues of
standing and ripeness as the position of the applicant to the process of interpreting rights. As a matter of principle,
therefore, an applicant either has a sufficient interest in the remedy he or she seeks or not. And, if he or she has
such an interest, the applicant must be able to rely on any fundamental right. For the contrary approach followed
in Zimbabwe, see Retrofit v Posts and Telecommunications Corporation (Attorney-General Intervening) 1996 (1)
SA 847 (ZS).
17
18
Ferreira (note 5 above) [160].
76
Justiciability 4.2
characterised as hypothetical or academic.19 On the contrary, it would be ‘highly

technical’ to prevent the examinees from challenging legislation which, objectively
viewed, conflicted with s 25(3) of the interim Constitution, in circumstances where they
had a sufficient interest in the declaration of invalidity. The ‘sufficient interest’ is not
restricted to an allegation of the infringement or threat to the applicants’ constitutional
rights.20 In Ferreira, the challenged section of the Companies Act had a direct bearing
on the applicants’ common-law rights, and non-compliance with the section had
possible criminal consequences.21 This amounted to a sufficient interest to confer
standing on the applicants to challenge the legislation. In effect, the majority of the court
held that as long as a court has jurisdiction to grant the required relief, applicants will
have standing if:
1. there is an allegation that a right in the Bill of Rights has been infringed or
threatened and;
2. the applicants can demonstrate, with reference to the categories listed in s 38 (a)
to (e) that there is a sufficient interest (not necessarily their own interest) in
obtaining the remedy they seek.
The important consequence of the approach in Ferreira v Levin NO is that applicants do
not need to allege that a fundamental right of the persons listed in the categories has
been infringed or threatened. The allegation need merely be that, objectively speaking, a
right in the Bill of Rights is infringed or threatened.22 It does not have to be any
particular person’s fundamental right. The ‘sufficient interest’ must, however, be linked
to one of the listed categories. If the applicants approach the court in their own interest,
they must themselves have a sufficient interest.23 Or, if the applicants approach the court
on behalf of another person, the applicant must show that that person has a sufficient
interest, and so on. The two prongs of the enquiry will now be considered in greater
detail.
19
Ibid [165].
20
Ibid [167]. The majority of the court went further and illustrated the point that the interest an applicant must
have does not have to relate to the violation of his or her fundamental rights. It held that s 7(4)(a) of the interim
Constitution had to be read with the provisions of the interim Constitution which confer jurisdiction on the court
to interpret, protect and uphold the provisions of the Constitution. Section 167(5) of the interim Constitution
(which corresponds to s 98(2)(c) of the 1996 Constitution) gives the Constitutional Court the jurisdiction to
enquire into the validity of an Act of Parliament. The constitutionality of a law may be challenged on the basis
that it is inconsistent with provisions of the Constitution other than those contained in the Bill of Rights. In such
a matter, the interest of the applicant cannot have anything to do with the violation of a fundamental right. The
court concluded that neither s 7(4) [now s 38] nor any other provision of the Constitution denies the applicants
the right that a litigant has to seek a declaration of rights in respect of the validity of a law which directly affects
his or her interests adversely.
21
Ibid [166].
22
Ferreira (note 5 above) [26]; National Coalition for Gay and Lesbian Equality v Minister of Home Affairs
2000 (2) SA 1 (CC) [29] (allowing foreign nationals with sufficient interest to challenge laws by relying on their
South African spouses’ fundamental rights); Chief Lesapo v North West Agricultural Bank 2000 (1) SA 409 (CC)
[7]; De Reuck v Director of Public Prosecutions (Witwatersrand Local Division) 2004 (1) SA 406 (CC) [85] (an
applicant who is neither a policeman, lawyer or judicial officer can bring a challenge to legislation prohibiting
possession of child pornography on grounds that it does not exempt police investigating or a lawyer defending or
a judicial officer hearing a case of possession).
23
Giant Concerts (note 12 above) [37].
77
(c) The allegation that a fundamental right has been infringed or

threatened
An applicant must allege that a right in the Bill of Rights has been infringed or
threatened. The word ‘threatened’ is included to make it clear that an applicant may also
approach a court to obtain an interdict to prevent a future violation of a right. For
example, applicants who fear detention, or a search of their house, may approach a court
for an interdict. Whether or not they will be successful depends on other considerations,
but s 38 makes it clear that they will have standing to seek relief in these circumstances.
To invoke s 38, the applicant need only make an allegation. It is not necessary at this
stage to prove to the court that a fundamental right has been infringed or is threatened.
Standing is a threshold issue, accordingly a court must assume that the challenge the
litigant seeks to bring is justified.24 Where it is challenged in limine, a court must deal
with the issue of standing on the assumption that the allegations relied upon by a litigant
in support of its claim of standing are true, much in the same way as an exception.25 The
basis on which the allegation is made must, however, be clearly set out.26 The purpose
of the allegation is to ensure that the basis of the applicant’s challenge is the Bill of
Rights.
The applicant does not have to allege that the fundamental rights of any particular
person or persons are infringed or threatened, but simply that a right in the Bill of Rights
is infringed or threatened. This approach will, for example, enable a male doctor
charged with performing an abortion in contravention of legislation to rely on the rights
of a pregnant woman to freedom and security of the person, privacy and equality. The
doctor does not have to demonstrate that the legislation limits one of his own
fundamental rights, but simply that it limits a fundamental right.27 In Chapter 3 above,
we argued that this approach will make it unnecessary for juristic persons to show that
they are beneficiaries of a right in terms of s 8(4). Like other applicants, juristic persons
will have standing when they allege that a fundamental right has been infringed or
threatened (whether or not it is their own right) and that they have a sufficient interest in
the remedy they seek.
(d) Sufficient interest and the categories of persons

No test has been laid down to determine when an interest will be regarded as ‘sufficient’.
In our view, the applicant (or the person or group whose interest they rely on) must at
least be directly affected by a law or conduct before he or she will have standing to
24
Ibid [32].
25
Kuter v South African Pharmacy Board 1953 (2) SA 307 (T) 313E–G (question for decision is whether, if
the applicant’s allegations are true, he is entitled to come to court). The dictum was followed in Letseng
Diamonds Ltd v JCI Ltd 2007 (5) SA 564 (W) [13], confirmed on appeal in Trinity Asset Management (Pty) Ltd
v Investec Bank 2009 (4) SA 89 (SCA) [7], [37].
26
Oostelike Gauteng Diensteraad v Transvaal Munisipale Pensioenfonds 1997 (8) BCLR 1066 (T) 1076.
27
The doubt expressed in South African Shore Angling Association v Minister of Environmental Affairs and
Tourism 2002 (6) BCLR 609 (SE) is therefore misplaced. According to the court, it was not clear that an
association representing the interests of organised recreational fishing could ‘take up the cause of the aged and
physically handicapped’ by arguing that restrictions on vehicle access to beaches have a discriminatory effect on
such persons. This is to take a subjective rather than objective approach to constitutional invalidity. The
consequence of such an approach, as the Constitutional Court pointed out in Ferreira (note 5 above) [26] ‘would
be to recognise the validity of a statute in respect of one litigant, only to deny it to another’.
78
Justiciability 4.2
challenge it.28 The concept of ‘sufficient interest’ is linked to the categories of persons
listed in s 38. So, for example, an association acting in the interest of its members (s 38
(e)) must show that the members have a sufficient interest in the remedy it seeks. A
person acting in the public interest (s 38(e)) must show that the public has a sufficient
interest in the remedy he or she seeks. A sufficient ‘public’ interest is of course
something quite different from a sufficient ‘own’ interest. What is to be regarded as a
sufficient interest therefore also depends on the category that the applicant relies on.
The sufficient interest must be interest in the relief the applicant requests. For
example, in Prior v Battle the applicant attacked the institution of the marital power
which survived in the Transkei and applied to both civil and customary marriages by
virtue of the provisions of the Transkei Marriage Act. The applicant challenged the
legislation both in her own interest (she was married under civil law) and in the public
interest. The court regarded her own interest to be sufficient to allow her to attack the
survival of the marital power in respect of civil marriages, but not to allow her to
challenge the existence of the marital power in customary marriages.29 Because the
applicant did not have an interest of her own in respect of customary marriages, she
brought this action in the public interest. However, this strategy also failed because she
did not place enough evidence before the court to enable it to properly decide the
matter.30
In principle, nothing prevents an applicant from supporting a claim for standing with
reference to more than one category.31 Or, as the applicant did in Prior v Battle, to bring
different challenges under different listed categories.
28
It will be sufficient if the challenged law or conduct has an adverse financial impact on the applicant. See, in
this regard, First National Bank v Land and Agricultural Bank 2000 (6) BCLR 586 (O), 591C.
29
Prior v Battle (note 7 above) 1020F.
30
Ibid 1020I. It can be a complex matter to determine whether an applicant has a sufficient interest in a
remedy, as is illustrated by Prinsloo v Van der Linde 1997 (3) SA 1012 (CC). In this case, s 84 of the Forest Act
122 of 1984 was challenged. The section provided that in any action under the Act or the common law, in the case
of fires which occur on land situated outside a fire-control area, negligence is presumed until the contrary is
proved. The applicant argued that the reverse onus could also be applied in criminal matters and that accused
persons’ right to be presumed innocent was therefore impaired. The court ([11]) expressed some doubt as to
whether a civil claimant has standing to challenge the constitutionality of a statutory reverse-onus provision that
may be applied in criminal trials, when the civil claimant was not in jeopardy of prosecution. As the judgment
was written by the same three judges (Ackermann, Sachs and O’Regan JJ) who had difficulties with the
majority’s approach in Ferreira (note 5 above), the obiter dictum could be interpreted as an attempt to resuscitate
the approach that was rejected by the majority in Ferreira. In other words, the applicant lacked standing because
he could not allege that one of his own fundamental rights was at stake. This approach was rejected in Ferreira.
On the Ferreira majority’s approach, it may be argued that the applicant in Prinsloo had a sufficient interest of his
own—the reverse-onus provision was applied against him in a civil action. Prinsloo’s problem was then not that
he lacked standing for a fair trial challenge but that the fair trial challenge had no merit. But if one has regard to
the remedy, the answer is less straightforward. Assuming that the fair trial challenge had merit (as the court must
when it considers standing), this would not have entitled Prinsloo to an order declaring the entire provision
invalid. Prinsloo would only be entitled to an order of invalidity to the extent that the provision is applicable in
criminal cases. It cannot be said that Prinsloo had sufficient interest in this remedy.
31
Dawood v Minister of Home Affairs 2000 (1) SA 997 (C), 1027A. In Port Elizabeth Municipality v Prut NO
(note 8 above), the Municipality demonstrated a sufficient interest of its own and a public interest, thus qualifying
under two of the categories. The issue had a direct bearing on similar cases in which the Municipality was
interested and or in which it was involved, thus affording it a sufficient interest of its own. The public had an
interest because the issue had a bearing on all persons in the position of the two ratepayers who challenged the
conduct of the Municipality.
79
(i) Persons acting in their own interest

As this category does not entail any danger of exposing the courts to a flood of litigation,
an ‘own interest’ may be more readily regarded as ‘sufficient’ than is the case with some
of the other categories. An own-interest litigant must show that a contested law or
decision directly affects his or her rights or interests, or potential rights or interests. This
requirement must be generously and broadly interpreted to accord with constitutional
goals.32 The interest must, however, be real and not hypothetical or academic.33 A
hypothetical interest is one that is expressly claimed, but is neither real nor true. An
academic interest is one that is not related to a real or practical situation and is therefore
irrelevant.34 These requirements mean that an own-interest litigant may be denied
standing even though the result could be that an unlawful decision stands.35
For example, in Janse van Rensburg v Minister van Handel en Nywerheid36 Van
Dijkhorst J held that the applicants, who were given notice of the intention to investigate
their business under the Harmful Business Practices Act 71 of 1998, could challenge all
the provisions of the Act that were likely to be applied to them. It was senseless to
expect the applicants to wait for the application of individual provisions to them and
then to launch a series of separate attacks on those provisions. The applicants were
entitled to know what the danger was that threatened them.37 The court also held that
there was no need to exhaust internal remedies, which existed in the form of an appeal
against the exercise of some of the statutory powers, since they did not provide
alternative relief to the applicants.38
(ii) Persons acting on behalf of another person

A person may act on behalf of another person who cannot act in their own name. There
are many reasons why a person may not be able to act in his or her own name, the most
obvious being when the person is detained and prevented from approaching the court
themselves.39 The represented person must consent to the action, or, if this is not
possible, it must be clear from the circumstances that he or she would have consented to
32
Giant Concerts (note 5 above) [41].
33
Ibid, citing Ferreira (note 5 above) [160] and [164]–[165].
34
Ibid [51].
35
Ibid [34], citing Oudekraal Estates (Pty) Ltd v City of Cape Town 2004 (6) SA 222 (SCA) [28] (a successful
challenge to a public decision can be brought only if ‘the right remedy is sought by the right person in the right
proceedings’).
36
Janse van Rensburg v Minister van Handel en Nywerheid 1999 (2) BCLR 204 (T).
37
Ibid 216F.
38
Ibid 217C. See De Reuck v Director of Public Prosecutions, Witwatersrand Local Division 2002 (6) SA 370
(W) which holds that an applicant charged under a provision of a law prohibiting possession of child
pornography has sufficient own interest to challenge the constitutionality of the provision, notwithstanding the
existence of another provision in the law that would permit the applicant to apply for a researcher’s exemption
from its operation. According to Epstein AJ, the existence of alternative defences for the accused, other than the
constitutional attack, was irrelevant to the question of standing to challenge the validity of the law in terms of
which her had been charged ([20]–[21]). This holding was not challenged in the subsequent appeal to the
Constitutional Court: De Reuck v Director of Public Prosecutions (Witwatersrand Local Division) 2004 (1) SA
406 (CC) [2].
39
See Albutt v Centre for the Study of Violence and Reconciliation 2010 (3) SA 293 (CC)[33]–[34] (NGOs had
standing to litigate in the interest of the victims who were not entitled to representation in the pardon proceedings
of the perpetrators of crimes against them, because they were unaware that applications for pardons affecting
them were being considered).
80
Justiciability 4.2
the action. Finally, the represented person must have a sufficient interest in the remedy
requested by the person who acts on his or her behalf.40
(iii) Persons acting as a member of a group or class of persons

This category allows ‘class action’ litigation, a suit brought by a party on behalf not only
of themselves but also of other parties who are similarly situated.41
Class action litigation has been defined as follows:
A class action is a legal procedure which enables the claims (or parts of the claims) of a
number of persons against the same defendant to be determined in the one suit. In a class
action, one or more persons (representative plaintiff) may sue on his or her own behalf and
on behalf of a number of other persons (the class) who have a claim to a remedy for the same
or a similar alleged wrong to that alleged by the representative plaintiff, and who have
claims that share questions of law or fact in common with those of the representative
plaintiff (common issues). Only the representative plaintiff is a party to the action. The class
members are not usually identified as individual parties but are merely described. The class
members are bound by the outcome of the litigation on the common issues, whether
favourable or adverse to the class, although they do not, for the most part, take any active
part in that litigation.42
The most important feature of a class action is that other members of the class, although
not formally and individually joined, benefit from, and are bound by, the outcome of the
litigation unless they invoke prescribed procedures to opt out of it.43
A good example of the utility of this form of litigation is provided by Ngxuza v
Permanent Secretary, Department of Welfare, Eastern Cape.44 Three individual
applicants challenged decisions of the Eastern Cape administration which had the
effect of suspending payment of their welfare grants, without any form of warning or
40
In Oostelike Gauteng Diensteraad (note 26 above) the possibility was raised that an organ of state may act
on behalf on another person or as a member of or in the interest of a class of persons or in the public interest.
Cameron J expressed no view on this issue, but held that the applicant did not have standing since it had not
demonstrated the basis on which it sought to enforce the fundamental rights of its workers. In Highveldridge
Residents (note 11 above) [27] it was held that a voluntary association could act on behalf of residents affected by
water service cut-offs because, ‘from the papers it is evident that the people affected by the alleged
discontinuation of the water supply are mostly indigent and are unable to individually pursue their claims
because of that fact’ ([27]).
41
In Children’s Resource Centre Trust v Pioneer Food (Pty) Ltd 2013 (2) SA 213 (SCA) [19] the Supreme
Court of Appeal held that a class action could be grounded on s 38(c) if the class was large and in general poor.
If so, the action was justified to prevent a threatened infringement of s 34, since large numbers of small claims
that could not be brought individually by claimant could only be pursued by way of a class action. If the class
action was not permitted the claims could not be pursued and this would infringe s 34. The court then held that it
would be irrational for the court to sanction a class action in cases where a constitutional right is invoked, but to
deny it in equally appropriate circumstances, merely because of the claimants’ inability to point to the
infringement of a right protected under the Bill of Rights. [21] It held that class actions were a particularly
appropriate way in which to vindicate some types of constitutional rights, but they are equally useful in the
context of mass personal-injury cases or consumer litigation.
At the time of writing, an appeal to the Constitutional Court against the SCA decision had been heard but
judgment had not yet been delivered.
42
Pioneer Food (ibid) [16], quoting R Mulheron The Class Action in Common Law Legal Systems: A
Comparative Perspective (2004). The South African Law Commission The Recognition of Class Actions and
Public Interest Action in South African Law (August 1998) defines a class action as ‘a device by which a single
plaintiff may pursue an action on behalf of all persons with a common interest in the subject matter of the suit’
para 2.3.1. Parliament has not acted on the recommendations of the Commission that the procedures applicable to
class actions should be governed by legislation.
43
Ngxuza (SCA) (note 11 above) [4].
44
Note 11 above.
81
prior notice or consultation. The suspensions (the result of a programme to weed

fraudulent claims out of the grant system by requiring every recipient to re-register
before their benefits were reinstated) affected not only the applicants but thousands
of welfare recipients in the province.45 The applicants therefore sought relief not
only for themselves but on behalf of all other recipients in the same position as
themselves. Class actions require an applicant to identify and specify the class of
litigants.46 Who, in other words, were these thousands of welfare recipients on whose
behalf the litigation was being undertaken? Though the applicants did not know, the
respondents (ie, the provincial government) certainly did since they knew which of
their former beneficiaries had had their benefits suspended. The High Court
(Froneman J) therefore gave an order permitting the applicants to litigate as
representatives on behalf of anyone in the whole of the Eastern Cape Province
whose disability grants had between specified dates been cancelled or suspended by
the Eastern Cape government (‘the class definition’). Associated with this was an
order requiring the Eastern Cape government to provide the applicants’ attorneys
with the details of the members of the class kept on file in government records (‘the
disclosure order’). The order lastly required the applicants to disseminate information
about the class action through various print and radio media in the Eastern Cape and
by putting up notices at pension pay points (‘the publication order’).47 The purpose
of the last order was to allow those affected to opt out of the litigation if they
wished.
According to the SCA, the suit was tailor-made for a class action. There was a
large and disparate class of claimants, all poor and ‘lacking in protective and
assertive armour’, without access to individualised legal services and each with a
relatively small monetary claim unsuitable for individual enforcement.48 The High
Court’s order should not, according to Cameron JA, have been the subject of an
appeal at all, yet government persisted on two grounds. The first was that the order
did not adequately define the class. The second was that the order included in the
class residents of the Eastern Cape province outside the jurisdiction of the Eastern
Cape Division of the High Court (the court a quo) and in the jurisdiction of the
Ciskei High Court in Bisho. As for the first, the SCA held that ‘there can be no
conceptual complaint about the clarity of the group’s definition’:
From the point of view of practical definition, it is beyond dispute that (1) the class is so
numerous that joinder of all its members is impracticable; (2) there are questions of law and
fact common to the class; (3) the claims of the applicants representing the class are typical of
the claims of the rest; and (4) the applicants through their legal representatives, the Legal
45
It appeared that up to one hundred thousand people were affected by the suspensions: Ngxuza (E) (note 11
above) 617H–I.
46
See Maluleke v MEC, Health and Welfare, Northern Province 1999 (4) SA 367 (T) (declining to allow a
class action on behalf of victims of a similar suspension of welfare benefits in the absence of evidence of the
identity of the members of the class, their knowledge of the application or their willingness to be bound by the
litigation.) Maluleke and Lifestyle Amusement Centre v Minister of Justice 1995 (1) BCLR 104 (C) were
overruled by the SCA in Ngxuza (note 11 above) [19] to the extent that they ‘question the availability of the class
action in our law, or suggest different criteria for constituting and defining a class for the purposes of a class
action [to those set out in Ngxuza]’.
47
The description of the High Court’s order that follows uses the terminology of the SCA decision. See [2] of
the SCA decision (note 11 above).
48
Ibid [12]–[13].
82
Justiciability 4.2
Resources Centre, will fairly and adequately protect the interests of the class. The
quintessential requisites for a class action are therefore present.49
As to the second ground of appeal, the SCA extended the common-law doctrine of
continentia causae to cover class actions of this type. The doctrine allows a court with
jurisdiction over part of a cause to assume jurisdiction over the remainder of the cause
for reasons of justice, convenience and good sense.50
(iv) Persons acting in the public interest

This is the most difficult of the s 38 categories.51 First, it must be shown that a person is
acting in the public interest. Secondly, it must be shown that the ‘public’ has a sufficient
interest in the requested remedy. It is clear that public-interest standing is an action on
behalf of people on a basis wider than those in the class actions expressly provided for in
s 38(c).52 In Ferreira, O’Regan J identified factors relevant to determine whether a
person is genuinely acting in the public interest as including
whether there is another reasonable and effective manner in which the challenge can be
brought; the nature of the relief sought, and the extent to which it is of general and
prospective application; and 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.53
This approach, part of a minority judgment and an interpretation of s 7(4)(b) of the
interim Constitution, was held to be applicable to s 38(d) in Lawyers for Human Rights
v Minister of Home Affairs.54 In that case, the court added that the list of factors
enumerated by O’Regan J was not closed. Additional factors included the degree and
vulnerability of the people affected, the nature of the right alleged to be infringed, and
the consequences of the infringement of the right.55
49
Ibid [16].
50
Ngxuza (SCA) (note 11 above) [22].
51
In Louw v Matjila 1995 (11) BCLR 1476 (W), 1484 the reason for the extension of standing to this category
of persons was described as ensuring the right of a citizen to enforce obedience of the law by a political
representative. The court added that members of the public have a right to know and to ensure that its lawmakers
will uphold the law.
52
Lawyers for Human Rights (note 4 above) [15].
53
Ferreira (note 5 above) [234].
54
Note 4 above [17].
55
Ibid [18]. Applying these factors to the particular case, the court held that a non-governmental organisation
with the mission of promoting human rights could act in the public interest to challenge the constitutionality of
legislation permitting detention of illegal immigrants. The provision challenged were of immense public
importance, were concerned with deprivation of the liberty and dignity of human beings ([20]). Another
consideration was the fact that it was unlikely that the affected immigrants themselves would be in a position to
challenge the constitutionality of the legislation providing for their rapid removal from the country. The result
might be the detention of hundreds of vulnerable people without the constitutionality of the provisions ever being
tested. This was not in the public interest and it was therefore in the public interest for the proceedings to be
brought ([21]).
In Eisenberg and Associates v Minister of Home Affairs 2003 (5) BCLR 514 (C) it was held that a law firm
specialising in immigration law had standing to act both in its own interest and the public interest to challenge the
legality of regulations made in terms of the Immigration Act without following the public participation
procedures set out in the Act. With reference to the Ferreira factors, the court noted that unless the applicant had
standing to challenge the validity of the regulations there was no other ‘way in which redress could be afforded
the applicant or other interested members of the public’. On appeal to the Constitutional Court, the court held that
the applicant had sufficient own interest to have standing to challenge the failure to grant it an opportunity to
comment on the legislation prior to promulgation. The court expressly did not comment on whether the applicant
had public-interest standing: Minister of Home Affairs v Eisenberg and Associates 2003 (5) SA 281 (CC) [28].
83
The second question, whether the public has a sufficient interest in a remedy,
raises a number of difficult issues. Timing is crucial. When the legislature is
attending to the matter, the public will not usually have a sufficient interest in a court
‘pre-judging’ the issue.56 Also, when a person acts in the public interest, it is
important to present a court with enough evidence and argument to decide an issue.
Without the full picture before it, a court will be hesitant to allow an applicant to
represent the public.57
In Albutt58 the Constitutional Court held that a group of NGOs had standing to
challenge an exercise of the President’s pardon power on grounds that it violated the
rule of law. As civic organisations concerned with victims of political violence, the
NGOs had an interest in ensuring compliance with the Constitution and the rule of
law that was sufficient to grant them standing to litigate in the public interest.
(v) Associations acting in the interest of their members59

When an association acts in the interest of its members, it must show that the members
have a sufficient interest in the remedy it seeks.60 In so far as an allegation is made that
a provision in the Bill of Rights has been infringed or threatened, it is not necessary to
show that common-law requirements are complied with. In other words, it is not
necessary to show that the association’s constitution authorises it to sue, or that the
association had continued existence, a separate identity and that it could own property
and acquire rights and incur obligations.61
56
See Raloso v Wilson 1998 (1) BCLR 26 (NC), where the applicant challenged s 49(2) of the Criminal
Procedure Act in the public interest. Because Parliament was attending to the issue, the court refused to refer the
issue to the Constitutional Court in terms of s 102(1) of the interim Constitution. Compare Freedom of
Expression Institute v President of the Ordinary Court Martial NO 1999 (2) SA 471 (C), where the Cape High
Court held that the Institute and a newspaper were acting in the public interest when they challenged provisions
of the Defence Act 44 of 1957 that were about to be repealed. By the time the Constitutional court had to confirm
the order of invalidity, the new provisions were about to come into force and the court ruled that the issues had
become moot. See, further, para 4.4 below.
57
See Prior v Battle (note 7 above).
58
Albutt v Centre for the Study of Violence and Reconciliation 2010 (3) SA 293 (CC) [34].
59
See Transvaal Agricultural Union v Minister of Land Affairs 1997 (2) SA 621 (CC) [1]; South African
National Defence Force Union v Minister of Defence 1999 (3) BCLR 321 (T), 323H. The applicants in both cases
(respectively, an association acting on behalf of farmers affected by land reform legislation and a trade union)
appeared to have qualified for this category without any difficulty.
60
The same approach is followed in Zimbabwe, despite the absence of a provision which explicitly entitles an
association to act in the interest of its members. See United Parties v Minister of Justice, Legal and
Parliamentary Affairs 1998 (2) BCLR 224 (ZS), 227–229, where the court denied a political party standing
because neither the party nor its members were sufficiently affected by electoral legislation. In Zimbabwe, there
is no possibility of bringing such a challenge in the ‘public interest’, which would have made it possible for the
political party to ‘carry the torch for claimants and voters generally’.
61
Heath (note 9 above) 1151F. In Highveldridge Residents (note 11 above) the court confronted the problem
that the applicant association in question was a ‘popular movement’ rather than an orthodox legal association
with legal personality authorised by its constitution to act in its own name. It was held ([26]–[27]) that a looser
understanding should be given to the term ‘association’ than that found in the common law so as to encompass
groups such as the applicant. In Rail Commuter Action Group (note 14 above) it was held that it was
inappropriate in constitutional litigation to impose the common-law’s formal requirements on a voluntary
association embarking on public-interest litigation (ie, it must show that it is a universitas personarum: a legal
entity apart from its members, capable of possessing rights and incurring obligations and with perpetual
succession). According to the joint judgment, a ‘voluntary association formed to protect the rights of a vulnerable
constituency and with the object of holding a public body accountable to the public should, it seems, not be
subjected to unnecessary restrictions before being heard by our courts’ .
A costs order may present problems in such cases. See Lotus River, Ottery, Grassy Park Residents Association
84
Justiciability 4.3
4.3 RIPENESS
In the United States, the primary rationale for the ripeness doctrine has been said to be
‘to prevent the courts, through avoidance of premature adjudication, from entangling
themselves in abstract disagreements.’62 The powers granted to the judiciary by the
Constitution must be used to decide real and not hypothetical disputes and, therefore,
before a court is willing to provide constitutional relief it has to be established that the
applicant faces an actual or imminent harm to a right.63
The doctrine forms part of South African constitutional law.64 According to
Ackermann J, ripeness is a justiciability doctrine stemming from the principle of
avoidance of constitutional issues:
While the concept of ripeness is not precisely defined, it embraces a general principle that
where it is possible to decide any case, civil or criminal, without reaching a constitutional
issue, that is the course which should be followed.65
Ripeness entails consideration of the timing of a constitutional challenge. The fitness of
the constitutional issue in a case for judicial decision must be weighed alongside the
hardship to the parties of withholding the court’s consideration.66 When a constitutional
issue can be dealt with more conveniently at a later stage and the applicant will get no
tangible advantage from an earlier ruling, the doctrine of ripeness requires the applicant
to wait until the court can ground its decision in concrete relief.67
As we indicated in Chapter 3 above, one dimension of avoidance is that in
principle an applicant must first exhaust the possibilities of ordinary legal relief,
including the indirect application of the Bill of Rights by ‘reading down’ a statute,
before invoking the Bill of Rights directly.68 To put it another way, the constitutional
v South Peninsula Municipality 1999 (2) SA 817 (C). Nothing would prevent a court making a costs order jointly
and severally against the association and its members in such cases, since the former represent the latter.
62
Abbott Laboratories v Gardner 387 US 136, 148 (1967), cited in LA Kloppenburg ‘Avoiding Constitutional
Questions’ (1994) Boston College LR 1003, 1019.
63
According to Van Heerden AJ in Dawood v Minister of Home Affairs 2000 (1) SA 997 (C) 1030I–1031A,
ripeness ‘prevents a party from approaching a court prematurely . . . when s/he has not yet been subjected to
prejudice, or the real threat of prejudice, as a result of the legislation or conduct alleged to be unconstitutional.’
(Emphasis original.)
64
On the similar doctrine in administrative law, see Chairman, State Tender Board v Digital Voice Processing
(Pty) Ltd 2012 (2) SA 16 (SCA).
65
National Coalition (note 22 above) [21]. See also the minority judgment of Kriegler J in Ferreira (note 5
above) [199]: ‘the doctrine of ripeness serves the useful purpose of highlighting that the business of a court is
generally retrospective; it deals with situations or problems that have already crystallised, and not with
prospective or hypothetical ones’.
66
Abbott Laboratories (note 62 above).
67
See SAPAT v Director: Directorate for Organised Crime and Public Safety 2000 (2) BCLR 200 (C), 206I. In
this case the applicants, who had had blood, hair and saliva samples taken from them after arrest, sought a
declaration that the provisions of the Criminal Procedure Act which permitted such samples to be taken by force,
were unconstitutional. Davis J held that the relief sought by the applicants was directed at the constitutionality
and resultant admissibility of evidence that had been extracted by the taking of bodily samples. The questions
that arose should be determined by the court that would hear the criminal trial. The questions could only be
determined properly when the trial court was apprised of the full factual context within which the evidence in
question was tendered (208).
68
Transvaal Agricultural Union v Minister of Land Affairs 1997 (2) SA 621 (CC) [24]–[31] (premature to
attack the validity of a statutory provision for failing to make provision for a hearing prior to an administrative
decision until a court has held that, on a proper interpretation of the statute, no hearing is expressly or impliedly
provided for). Where more than one constitutional issue is raised, the one ‘raised in the most crisp form with the
best evidential foundation’ should be considered first and, if this resolves the dispute, the rest avoided: Minister of
Education v Harris 2001 (4) SA 1297 (CC) [19] (declining to consider a non-discrimination challenge to the
85
issue is not ‘ripe’ before indirect application or non-constitutional remedies have

been considered or sought. However, when the ordinary legal remedy offers few
prospects of success69 or when the applicant would suffer serious and irreparable
harm by being required to exhaust the remedy, it would be unreasonable to delay the
constitutional challenge.70
For example, the courts have held that a statute or regulation may be challenged
before a public body has completed its decision-making process under the statute, as
long as there is a real threat of prejudice to the rights of an applicant.71 Further, it
has been held that an empowering statute may be subjected to constitutional review
before exhausting the remedy of an internal appeal provided for in the statute.72 In
our view, these judgments are correct, but not because, as the courts held,
constitutional invalidity is ‘objectively’ determined. As we argued in Chapter 3
above, when a statute is challenged, there are often no ‘ordinary legal remedies’ to
exhaust. The only non-constitutional remedy is to urge the relevant authorities and
ultimately a court to read the statute down. But where it is not reasonably possible to
construe a statute in a way that it does not give rise to constitutional inconsistency, it
will not be necessary to exhaust this possibility.73 Usually, therefore, if an Act
empowers an administrator to make subordinate legislation, the enabling provision
may be challenged if it sanctions the violation of a fundamental right. There is no
reason to wait until the subordinate legislation is passed before attacking the
enabling legislation.74
Issues relating to ripeness and standing often overlap. An applicant will often not
have sufficient interest in the requested remedy because the matter is not ripe for
decision.75 For example, in S v A76 the constitutionality of the common-law offence
content of regulations when the regulations were clearly ultra vires the enabling legislation); Road Accident Fund
v Mdeyide 2008 (1) SA 535 (CC) (court declining to consider confirming order of invalidity of prescription
period in road accident fund legislation because High Court had not considered whether the respondent was of
sound mind and capable of instituting legal proceedings and, if not, whether prescription was interrupted; matter
remitted to High Court).
See also Ex parte Minister of Safety and Security: in re S v Walters 2002 (4) SA 613 (CC) [62]–[67] (criminal
case should be dealt with routinely and resolved if possible according to ordinary issues of fact and law without
reaching the issue of constitutionality of legislation).
69
In Shepherd v O’Niell 2000 (2) SA 1066 (N) the applicant challenged the fact that he was required to furnish
security for costs in terms of rule 49(13) of the Uniform Rules of Court. The applicant was not required to apply
for condonation (allowed by rule 27(3)) before challenging rule 49(13) because the court held that there was little
chance that the application for condonation would succeed.
70
See Heath (note 9 above) 1149F (applicants have reasonable grounds for fearing investigation in terms of
disputed powers and that they will suffer irreparable harm as a result).
71
Dawood (note 31 above) 1030I.
72
Metcash Trading v Commissioner for the South African Revenue Service 2000 (2) SA 232 (W), 238I. In the
case of challenges to administrative action (as opposed to the legislation that authorises it), the position is now
regulated by s 7(2) of the Promotion of Administrative Justice Act 3 of 2000, which provides that administrative
decisions in terms of legislation may not be reviewed until any internal remedies have been exhausted. In
addition, the Act’s definition of ‘administrative action’ is intended to discourage judicial review prior to the
finalisation of an administrative decision-making process. See, further, Chairman, State Tender Board (note 64
above).
73
National Coalition (note 22 above) [21]–[26].
74
See, however, United Parties v Minister of Justice, Legal and Parliamentary Affairs (note 60 above). The
enabling provision empowered the President of Zimbabwe to validate anything done in relation to an election
that was in contravention of the Electoral Act itself or any other law. The court held that the issue was
prematurely raised because ‘a law that does not exist cannot be impugned. The power to make the law must be
implemented before it, or anything done under it, becomes open to challenge.’
75
But see Richter v Minister of Home Affairs 2009 (3) SA 615 (CC) [40]: ‘It cannot be right. . . that a voter
who has a reasonable apprehension that his or her right to vote will be infringed must wait till it actually is
86
Justiciability 4.3–4.4
of sodomy was raised,77 but since it was not clear from the facts of the case whether
sexual intercourse took place in private and with the consent of the ‘victim’, the
court refused to entertain what it termed ‘a theoretical and academic exercise’.78
Usually, however, a person will have sufficient interest to challenge an offence for
which he or she is liable for prosecution.79 It is not necessary to commit the offence
and then to wait until the state prosecutes before the issue is ripe.80
Though it is settled practice that that courts prefer to wait until a law is enacted to
before intervening in the legislative process, this may be departed from to prevent
the violation of the Constitution:
The basic position appears to be that, as a general matter, where the flaw in the law-making
process will result in the resulting law being invalid, Courts take the view that the
appropriate time to intervene is after the completion of the legislative process. The
appropriate remedy is to have the resulting law declared invalid. However, there are
exceptions to this judicially developed rule or ‘settled practice’. Where immediate
intervention is called for in order to prevent the violation of the Constitution and the rule of
law, courts will intervene and grant immediate relief. But intervention will occur in
exceptional cases, such as where an aggrieved person cannot be afforded substantial relief
once the process is completed because the underlying conduct would have achieved its
object.81
4.4 MOOTNESS
(a) General principles

Whereas ripeness prevents a court from deciding an issue too early, mootness prevents
the court from deciding an issue when it is too late. A case is moot and therefore not
justiciable ‘if it no longer presents an existing or live controversy which should exist if
the Court is to avoid giving advisory opinions on abstract propositions of law’.82 For
example, issues that can no longer affect the interests of the parties are moot.83 An issue
which no longer presents an existing or live controversy is moot.84
infringed to raise a challenge. Indeed, section 38 of the Constitution makes plain that a person who fears that their
rights are threatened may seek appropriate relief and does not have to wait till the infringement occurs.
76
S v A 1995 (2 above) BCLR 153 (C).
77
The offence was later declared unconstitutional in National Coalition for Gay and Lesbian Equality v
Minister of Justice 1999 (1) SA 6 (CC).
78
S v A (note 76) 157A. See also S v Friedland 1996 (8) BCLR 1049 (W) and Motsepe v Commissioner for
Inland Revenue 1997 (2) SA 898 (CC) [23].
79
De Reuck (W) (note 38 above).
80
SA National Defence Force Union v Minister of Defence 1999 (3) BCLR 321 (T), 338D.
81
Doctors for Life International v Speaker of the National Assembly 2006 (6) SA 416 (CC) [68]–[69]
(footnotes omitted); Glenister v President of the Republic of South Africa 2009 (1) SA 287 (CC) [19]–[20].
82
National Coalition (note 22 above) [21] n 18.
83
S v Dlamini 1999 (4) SA 623 (CC) [27]. See also [32] where the Constitutional Court questioned whether a
court has jurisdiction to strike down a statute in the absence of a live constitutional issue.
84
Janse van Rensburg NO v Minister of Trade and Industry 2001 (1) SA 29 (CC) [9] (declining to confirm a
declaration of invalidity of a statutory provision that had been amended subsequent to the High Court decision).
The repeal of a statutory provision does not necessarily make litigation about its constitutionality moot. Mootness
in this context will depend on the particular remedy sought by the applicant. See Namunjepo v Commanding
Offıcer, Windhoek Prison 2000 (6) BCLR 671 (NmS) (legislation permitting prisoners to be put in chains had
been repealed, but actions for damages had been instituted by prisoners put in chains during the period of validity
of the legislation; court therefore required to determine lawfulness of the practice); Geldenhuys v National
Director of Public Prosecutions [27] (applicant entitled to challenge repealed legislation under which he had
been convicted to obtain a retrospective order which would invalidate the provisions which criminalised his
87
The Constitutional Court first applied the doctrine of mootness in JT Publishing v

Minister of Safety and Security85 where provisions of the Publications Act 42 of 1974
were attacked. The applicant sought a declaratory order that the sections of the Act were
unconstitutional and invalid.86 Didcott J held that a declaratory order is a discretionary
remedy and that the discretion must be exercised with reference to the principle that
courts should not decide points which are merely abstract, academic or hypothetical.87
Didcott J noted that Parliament had, since the institution of the action, repealed the 1974
Publications Act and replaced it with the Films and Publications Act 65 of 1996.
Although the new Act was not yet in operation, it was likely to come into operation
shortly.88 Accordingly neither the applicants nor anyone else could benefit from an order
dealing with the ‘moribund and futureless’ provisions of the old Act.89 No wrong done
to the applicants in terms of the legislation could be righted.90
Mootness is determined with reference to the date of the hearing before the court or
even when it decides the matter. Thus, in President of the Ordinary Court Martial NO v
Freedom of Expression Institute91 the court declined to consider whether or not to
confirm certain orders of invalidity made by the Cape High Court92 since the challenged
provisions were about to be repealed. Since the court martial proceedings against the
respondents were to be terminated and the appellants then had to consider whether to
start proceedings afresh under the new law, the Constitutional Court considered the
issues to be moot. Although the appellants made use of the special appeal procedure
provided for in s 172(2)(d) of the Constitution, the court followed an approach similar to
the one provided for in s 21A of the Supreme Court Act 59 of 1959, dismissing the
appeal on the basis that any judgment or order will have no practical effect.93
(b) Exceptions to the mootness doctrine in the interests of justice

Even though a matter may be moot as between the parties, that does not necessarily
constitute an absolute bar to its justiciability. The court has a discretion whether or not to
consider it. This was the gloss put on the Freedom of Expression Institute decision in the
subsequent case of Independent Electoral Commission v Langeberg Municipality.94 The
conduct at the time of the commission of the offence); Children’s Institute v President Offıcer, Children’s Court,
Krugersdorp 2013 (2) SA 620 (CC) [14] (despite resolution of the matter in respect of applicant, issue not moot
with regard to amici curiae).
85
JT Publishing v Minister of Safety and Security 1997 (3) SA 514 (CC).
86
The applicants failed to have the issue referred to the Constitutional Court in terms of s 102(1) of the interim
Constitution. They were then granted leave to appeal by the Constitutional Court.
87
See also Dormehl v Minister of Justice 2000 (2) SA 987 (CC) [7]–[9] (may not raise an abstract question of
law unrelated to a legal dispute).
88
In fact, the new Act only came into operation almost a year after the decision was handed down.
89
JT Publishing (note 85 above) [16].
90
See also Raloso v Wilson (note 56 above) where the court considered it not to be in the interests of justice to
refer the issue of the constitutionality of s 49(2) of the Criminal Procedure Act to the Constitutional Court
because an amendment to the section was envisaged in the foreseeable future.
91
President of the Ordinary Court Martial NO v Freedom of Expression Institute 1999 (4) SA 682 (CC).
92
See Freedom of Expression Institute v President of the Ordinary Court Martial NO 1999 (2) SA 471 (C) [30]
where the High Court adopted a different approach, focusing on the time when the issues were presented to the
court of first instance, notwithstanding subsequent events.
93
See also the High Court decision in New National Party of South Africa v Government of the RSA 1999 (4)
BCLR 457 (C), 479 where it held that ‘despite the inroads, the independent functioning [of the Electoral
Commission] has not been materially affected, it follows that the alleged infringement has become academic, if
not somewhat of a damp squib’.
94
Independent Electoral Commission v Langeberg Municipality 2001 (3) SA 925 (CC).
88
Justiciability 4.4
Constitutional Court shed further light on the standard governing the exercise of this
discretion. The discretion, it was held, must be exercised according to the interests of
justice.95 A prerequisite for deciding an issue that is no longer live is that any order that
the court may make must have some practical effect on the parties or someone else.
Other relevant factors include the nature and extent of the practical effect that any
possible order might have, the importance of the issue, its complexity and the fullness or
otherwise of the argument that has been advanced by the parties. Moreover, even if the
court has determined one moot issue arising in an appeal it is not obliged to determine
all other moot issues.96 It will follow that in class actions, or litigation in the public
interest, the issues raised are much less likely to be considered moot since, even if the
applicants no longer require relief, the decision is likely to have a practical effect on
many others.97 In other words, where there is a compelling public interest that the
constitutionality of a statutory provision be determined, the doctrine of mootness should
be less strictly applied.98
In another application of the interests of justice exception99 the Constitutional Court
held that a decision by it on the rule-making powers of a non-statutory regulatory
authority was desirable despite the replacement of the rules by Ministerial regulations.
This was because there were ‘two conflicting judgments’ on the issue of the powers of a
private regulator to make law-like rules. Though the particular issue between the
litigants was moot, resolution of the conflict was ‘crucial to important aspects of
government as well as the rights contained in the Bill of Rights’.100
The exception was used in Wiese v Government Employees Pension Fund101 to
permit the court to consider a dispute over costs in confirmation proceedings, despite the
fact that a legislative amendment had cured the defect and rendered the dispute moot.
The question of costs could be considered because it was an issue connected with a
decision on a constitutional matter and thus fell within the court’s jurisdiction.102
95
On the use of the interests of justice standard in the determination of applications for leave to appeal and
direct access to the Constitutional Court, see Chapter 5 below.
96
Note 94 above [11].
97
National Coalition (C) (note 68 above) 289.
98
See S v Manamela 2000 (3) SA 1 (CC) [12].
99
AAA Investments (Pty) Ltd v Micro Finance Regulatory Council 2007 (1) SA 343 (CC).
100
Ibid [27]. This reasoning, turning as it does on the desirability that an uncertainty in the law is resolved, is
however hard to follow. The two decisions (AAA Investments (Pty) Ltd v Micro Finance Regulatory Council 2004
(6) SA 557 (T) and Micro Finance Regulatory Council v AAA Investments (Pty) Ltd 2006 (1) SA 27 (SCA))
cannot be described as ‘conflicting’ since the SCA decision overruled that of the High Court, leaving the position
quite clear. But see also [60] of the Constitutional Court decision, declining to entertain a further issue of the
infringement of the right to privacy by certain provisions of the rules because there were ‘no conflicting
judgments in existence’ on this issue and the rules were shortly to be replaced by an entirely new statutory
regulatory regime.
101
Wiese v Government Employees’ Pension Fund 2012 (6) BCLR 599 (CC).
102
Ibid [25].
89
Chapter Five
Jurisdiction in Bill of Rights

Litigation
5.1 The relationship between constitutional jurisdiction and remedies. . . . 91
5.2 Structure of the judicial system . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
(a) The interim Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
(b) The 1996 Constitution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
(i) A new hierarchy of courts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
(c) Rationalisation of the superior court structure . . . . . . . . . . . . . . . . . . . . 95
5.3 Jurisdiction in constitutional litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
(a) Jurisdiction of the Constitutional Court: s 167 of the
Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
(b) Proposed amendments to the Constitutional Court’s jurisdiction:
the Constitution Seventeenth Amendment Act . . . . . . . . . . . . . . . . . . . 97
(c) Criteria governing the Constitutional Court’s jurisdiction . . . . . . . . 98
(i) Constitutional matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
(ii) The interests of justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
(iii) Issues connected with decisions on constitutional matters. . . 101
(iv) Supervisory and exclusive jurisdiction . . . . . . . . . . . . . . . . . . . . . . 103
(aa) Expansion of the Constitutional Court’s supervisory
jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
(bb) Scope of the Constitutional Court’s exclusive jurisdic-
tion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
(v) Functions of the Constitutional Court . . . . . . . . . . . . . . . . . . . . . . . 106
(vi) Composition and quorum of the Constitutional Court . . . . . . . 107
(d) Constitutional jurisdiction of the Supreme Court of Appeal . . . . . . 107
(e) Constitutional jurisdiction of the High Courts . . . . . . . . . . . . . . . . . . . . 108
(f) Grant of interim relief by the Supreme Court of Appeal or a High
Court in constitutional matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
(g) Constitutional jurisdiction of the magistrates’ courts . . . . . . . . . . . . . 111
5.4 Access to the Constitutional Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
(a) Matters within exclusive jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
(b) Confirmation of orders of invalidity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
(i) Scope and purpose of the confirmation power. . . . . . . . . . . . . . . 115
(ii) Orders of invalidity of delegated legislation do not require
confirmation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
(iii) Status of pre-1994 provincial legislation . . . . . . . . . . . . . . . . . . . . 117
(iv) Conduct of the President . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
(c) Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
90
Jurisdiction in Bill of Rights Litigation 5.1
(i) Appeals against orders of invalidity of Parliamentary or

provincial legislation or conduct of the President . . . . . . . . . . . 119
(ii) Other appeals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
(aa) The appeals procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
(bb) Common criteria for the assessment of applications
for leave to appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
(cc) Appeals to the Constitutional Court from a High
Court. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
(dd) Appeals to the Constitutional Court from the Supreme
Court of Appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
(d) Direct access . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
5.5 Special procedures in Constitutional Court litigation . . . . . . . . . . . . . . . . . 130
(a) Joinder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
(b) Admission of amici curiae. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
5.1 THE RELATIONSHIP BETWEEN CONSTITUTIONAL JURISDICTION AND REMEDIES

Jurisdiction is the power or competence of a court to adjudicate on, determine and
dispose of a matter. In civil matters, jurisdiction has practical significance when a
litigant has to choose the appropriate court in which to proceed. In criminal matters,
jurisdiction is significant in determining whether the court in which an accused person is
tried has the power to do so.
The rules of jurisdiction in civil and criminal litigation involving the direct
application of the Constitution differ in important ways from the rules of jurisdiction in
other matters. This is, in part, because of the particular remedies that a litigant may seek
in direct constitutional litigation. Typically, a constitutional matter would involve a
defendant in a criminal trial arguing that the law in terms of which he or she has been
charged violates the Bill of Rights and is therefore unconstitutional. The remedy that is
sought in such a case is therefore a declaration that the law is inconsistent with the
Constitution and invalid.1 Only certain courts have jurisdiction to grant such a remedy.
Notably, magistrates’ courts, in which most criminal matters are litigated, do not have
the jurisdiction to declare a law invalid. Similarly, in civil matters a litigant may seek a
declaration that a legislative provision imposing an obligation or imposing a burden on
him or her is unconstitutional or invalid. This would involve the direct application of the
Bill of Rights and trigger the Constitution’s jurisdictional rules pertaining to orders of
invalidity of legislation.
On the other hand, a litigant may seek the indirect application of the Bill of Rights to
a matter.2 For example, a defendant in a defamation case may argue that the existing
common law of defamation fails to protect freedom of speech adequately and that it
should be developed so that it conforms to the Bill of Rights. Alternatively, a dispute
could arise in a case about the correct interpretation of a statutory provision in the light
of the values in the Bill of Rights. The Constitution does not impose jurisdictional limits
1
Section 172(1)(a). See, further, Chapter 8 below.
2
On direct and indirect application of the Bill of Rights, see Chapter 3 above.
91
on the powers of courts to apply the Bill of Rights indirectly, but if such a case was to be
appealed, one would have to have regard to the rules about the path of appeals involving
constitutional issues.
What these examples indicate is that jurisdiction in constitutional proceedings is
related to the type of relief or remedy that is sought by a litigant. In the case of Bill of
Rights litigation therefore, one must first consider what remedies are sought by a litigant
for an alleged breach of a right. The court with jurisdiction to determine the matter will
be the court with the power to confer the remedy that is sought. This chapter should
therefore be read with Chapter 8 which deals specifically with remedies in constitutional
litigation.
5.2 STRUCTURE OF THE JUDICIAL SYSTEM

Which courts have the power to confer the remedies that are usually sought in direct Bill
of Rights litigation? Before answering this question, it is necessary to examine the
hierarchy of courts established by the Constitution.
(a) The interim Constitution

Since Union in 1910, South Africa has had a hierarchical court structure. Judicial
authority was divided between, on the one hand, the Supreme Court of South Africa
(consisting of an Appellate Division and a number of provincial and local divisions)
and, on the other hand, a number of lower courts, principal among which were the
magistrates’ courts.3 The interim Constitution preserved this hierarchy, but created a
new Constitutional Court which was the court of final instance in constitutional matters.
Under the interim Constitution, the Constitutional Court was at the same level of the
judicial hierarchy as the Appellate Division. This meant that neither court was
empowered to hear appeals from the other. The Appellate Division was the court of final
instance in all matters except matters in which constitutional issues were raised, while
the Constitutional Court was the court of final instance for constitutional issues.
The division between the two courts was preserved by providing that the Appellate
Division had no jurisdiction to adjudicate any matter within the jurisdiction of the
Constitutional Court.4 Practically speaking, this meant that appeals from provincial and
local divisions of the Supreme Court raising only constitutional issues would proceed
directly to the Constitutional Court and would not be heard either by a full bench or by
the Appellate Division.5 Appeals raising only non-constitutional issues would, in
accordance with the ordinary rules of civil or criminal procedure, be heard by a full
bench or by the Appellate Division. Appeals raising both constitutional and
non-constitutional issues would proceed to the Appellate Division. The Appellate
Division would either dispose of the appeal solely on the non-constitutional grounds or,
if unable to do so, would refer the constitutional issue to the Constitutional Court for
decision.6 There was no possibility of an appeal from the Appellate Division to the
Constitutional Court, or vice versa.
3
There is a survey of this history in S v Steyn 2001 (1) SA 1146 (CC) [15]–[16].
4
Section 101(5) of the interim Constitution.
5
Section 101(12).
6
Section 102(4) and (5).
92
(b) The 1996 Constitution

(i) A new hierarchy of courts
All courts operating in South Africa immediately prior to the commencement of the
1996 Constitution remained in existence after commencement. However, the
Constitution made important changes to the old court structure that been largely left
intact by the interim Constitution. In a decisive break with the past, s 166 of the 1996
Constitution sets out a new hierarchy of courts in South Africa:
166. Judicial system

The courts are—
(a) the Constitutional Court;
(b) the Supreme Court of Appeal;
(c) the High Courts, including any high court of appeal that may be
established by an Act of Parliament to hear appeals from High
Courts;
(d) the Magistrates’ Courts; and
(e) any other court established or recognised in terms of an Act of Par-
liament, including any court of a status similar to either the High
Courts or the Magistrates’ Courts.
In turn, s 166 must be read with item 16 of Schedule 6:
16. (2) The Constitutional Court established by the previous Constitu-

tion becomes the Constitutional Court under the new Constitution.
(3) The Appellate Division of the Supreme Court of South Africa
becomes the Supreme Court of Appeal under the new Constitution.
(4)(a) A provincial or local division of the Supreme Court of South
Africa or a supreme court of a homeland or a general division of such a
court, becomes a High Court under the new Constitution without any
alteration in its area of jurisdiction, subject to any rationalisation contem-
plated in subitem (6).
(b) Anyone holding office or deemed to hold office as the Judge Presi-
dent, the Deputy Judge President or a judge of a court referred to in
paragraph (a) when the new Constitution took effect, becomes the
Judge President, the Deputy Judge President or a judge of such a court
under the new Constitution, subject to any rationalisation contemplated
in subitem (6).
(5) Unless inconsistent with the context or clearly inappropriate, a ref-
erence in any legislation or process to—
(a) the Constitutional Court under the previous Constitution, must be
construed as a reference to the Constitutional Court under the new
Constitution;
93
(b) the Appellate Division of the Supreme Court of South Africa, must
be construed as a reference to the Supreme Court of Appeal; and
(c) a provincial or local division of the Supreme Court of South Africa or
a supreme court of a homeland or general division of that court,
must be construed as a reference to a High Court.
(6)(a) As soon as is practical after the new Constitution took effect all
courts, including their structure, composition, functioning and jurisdic-
tion, and all relevant legislation, must be rationalized with a view to
establishing a judicial system suited to the requirements of the new
Constitution.
(b) . . .
(7)(a) Anyone holding office, when the Constitution of the Republic of
South Africa Amendment Act, 2001, takes effect, as—
(i) the President of the Constitutional Court, becomes the Chief
Justice as contemplated in section 167(1) of the new Constitu-
tion;
(ii) the Deputy-President of the Constitutional Court, becomes the
Deputy Chief Justice as contemplated in section 167(1) of the
new Constitution;
(iii) the Chief Justice, becomes the President of the Supreme Court
of Appeal as contemplated in section 168(1) of the new Consti-
tution; and
(iv) the Deputy Chief Justice, becomes the Deputy President of the
Supreme Court of Appeal as contemplated in section 168(1) of
the new Constitution.
(b) All rules, regulations or directions made by the President of the
Constitutional Court or the Chief Justice in force immediately before the
Constitution of the Republic of South Africa Amendment Act, 2001,
takes effect, continue in force until repealed or amended.
(c) Unless inconsistent with the context or clearly inappropriate, a ref-
erence in any law or process to the Chief Justice or to the President of
the Constitutional Court, must be construed as a reference to the Chief
Justice as contemplated in section 167(1) of the new Constitution.7
Under the 1996 Constitution there is a Constitutional Court and a Supreme Court of
Appeal. The latter court is, in effect, the old Appellate Division with a new name. But,
unlike the former Appellate Division, the Supreme Court of Appeal (SCA) is no longer
a division of the Supreme Court but is now a constitutional entity in its own right. Both
the Constitutional Court and the SCA have Republic-wide jurisdiction. Both are appeal
7
Item 16 was amended by s 20 of the Constitution of the Republic of South Africa Sixth Amendment Act of
2001. The purpose of the amendments made by the Sixth Amendment to Chapter 8 of the Constitution (dealing
with the judicial authority) was to make the chief judge of the Constitutional Court the head of the South African
judiciary. The Act therefore provided that the President of the Constitutional Court was henceforth to be known
as the Chief Justice and the Deputy President of that court the Deputy Chief Justice. The principal judge of the
Supreme Court of Appeal was henceforth to be known as the President of the Supreme Court of Appeal.
Important changes were also made to the provisions governing the term of office of Constitutional Court
judges—see s 176 of the Constitution (as amended) and the Judges’ Remuneration Act 47 of 2001.
94
courts. The Constitutional Court hears constitutional appeals while the SCA may hear
all appeals, including appeals in which both constitutional and non-constitutional issues
are raised. However, the Constitutional Court has additional non-appellate jurisdiction:
decisions of the High Courts and the SCA that declare Acts of Parliament, provincial
legislation and conduct of the President invalid must be referred to the Constitutional
Court for confirmation.8 The Constitutional Court may also function as a court of first
instance over certain constitutional matters and in certain circumstances.9 The
Constitution creates a number of High Courts. These take the place of the former
provincial and local divisions of the Supreme Court and the various superior courts of
the former TBVC states. Like their predecessors, the High Courts function as superior
courts and have geographically limited jurisdiction.10
The magistrates’ courts remain unchanged under the new dispensation, as do other
courts created by statute (for example, the Labour Court and the Labour Appeal
Court established by the Labour Relations Act 66 of 1995 or the Land Claims Court
established by the Restitution of Land Rights Act 22 of 1994).
(c) Rationalisation of the superior court structure

Sub-item (6) of item 16 envisages the rationalisation of the superior court structure
inherited from the apartheid era, premised as it was on the old provinces and TBVC
territories. At the time of writing, the rationalisation process was still incomplete. A
lengthy process of investigation and debate resulted in the Superior Courts Bill 52 of
2003 which proposed a number of important changes to the court structure as well as the
repeal of a number of outdated Acts, notably the Supreme Court Act 59 of 1959. The
Bill was subsequently withdrawn and the Department of Justice introduced a
substantially redrafted version, the Superior Courts Bill 7 of 2011. At the time of writing
the Bill was under consideration by the National Assembly.
The Bill proposes that the High Court will be divided into nine divisions (one for each
province). A new High Court will be created for Mpumalanga, with its seat in Nelspruit.
Each division may have one or more local seats, as determined by regulation by the
Minister in consultation with the Judicial Service Commission from time to time.
Because of the protracted process of rationalisation, the various High Courts
continued to function under their old-order names for over a decade after
commencement of the 1996 Constitution. This anomaly was at last corrected by the
Renaming of High Courts Act 30 of 2008, which makes the changes set out in the
following table.
8
Section 167(5). See further, para 5.4(b) below.
9
Sections 167(4) and 167(6)(a). See, further, paras 5.4(a) and 5.4(d) below.
10
Why did the 1996 Constitution change the names of the courts? The Constitutional Assembly had to find a
way of merging the former Supreme Court of South Africa (which included the Appellate Division) with the
superior courts of the former TBVC states (which also had their own appeal courts). It chose to do this by making
each division of the former Supreme Court and each TBVC superior court an individual High Court, with
jurisdiction over a particular geographical area. The final court of appeal of each High Court is the Supreme
Court of Appeal (and, in constitutional matters, the Constitutional Court). The old TBVC appeal courts were
abolished in 1994 by the Constitution of the Republic of South Africa Third Amendment Act 13 of 1994.
95
Table 2: Changes to names of High Courts by the Renaming of High Courts Act 30 of
2008
Name and seat of High Court prior to Name and seat of High Court after
renaming renaming
Ciskei High Court, Bisho Eastern Cape High Court, Bhisho11
Orange Free State Provincial Division, Free State High Court, Bloemfontein
Bloemfontein
Cape of Good Hope Provincial Division, Western Cape High Court, Cape Town
Cape Town
Durban and Coastal Local Division, KwaZulu-Natal High Court, Durban
Durban
Eastern Cape Provincial Division, Eastern Cape High Court, Grahamstown
Grahamstown
Witwatersrand Local Division, South Gauteng High Court, Johannesburg
Johannesburg
Northern Cape Local Division, Kimberley Northern Cape High Court, Kimberley
North-West High Court, Mafikeng North West High Court, Mafikeng
Transkei General Division, Umtata Eastern Cape High Court, Mthatha
Natal Provincial Division, KwaZulu-Natal High Court,
Pietermaritzburg Pietermaritzburg
Eastern Cape Local Division, Port Eastern Cape High Court, Port Elizabeth
Elizabeth
Transvaal Provincial Division, Pretoria North Gauteng High Court, Pretoria
Venda High Court, Thohoyandou Limpopo High Court, Thohoyandou
5.3 JURISDICTION IN CONSTITUTIONAL LITIGATION
(a) Jurisdiction of the Constitutional Court: s 167 of the Constitution

The jurisdiction of the Constitutional Court is set out in s 167 of the Constitution:
(3) The Constitutional Court—

(a) is the highest court in all constitutional matters;
(b) may decide only constitutional matters, and issues connected with
decisions on constitutional matters; and
(c) makes the final decision whether a matter is a constitutional matter
or whether an issue is connected with a decision on a constitutional
matter.
(4) Only the Constitutional Court may—
(a) decide disputes between organs of state in the national or provin-
cial sphere concerning the constitutional status, powers or functions
of any of those organs of state;
11
Bisho was renamed Bhisho in 2004 on the advice of the South African Geographical Names Council. See
GN 830 of 16 July 2004.
96
(b) decide on the constitutionality of any parliamentary or provincial Bill,

but may do so only in the circumstances anticipated in Chapter 4 or
6;
(c) decide that Parliament or the President has failed to comply with a
constitutional duty; or (d) certify a provincial constitution in terms of
s 144.
(5) The Constitutional Court makes the final decision whether an Act
of Parliament, a provincial Act or conduct of the President is constitu-
tional, and must confirm any order of invalidity made by the Supreme
Court of Appeal, a High Court, or a court of similar status, before that
order has any force.
(6) National legislation or the rules of the Constitutional Court must
allow a person, when it is in the interest of justice and with leave of the
Constitutional Court—
(a) to bring a matter directly to the Constitutional Court; or
(b) to appeal directly to the Constitutional Court from any other court.
(7) A constitutional matter includes any issue involving the interpreta-
tion, protection or enforcement of the Constitution.
(b) Proposed amendments to the Constitutional Court’s jurisdiction: the

Constitution Seventeenth Amendment Act
At the time of writing, Parliament had passed and the President had assented to the
Constitution Seventeenth Amendment Act, 2012 which provides for the Constitutional
Court to be the highest court in all matters and not, as is currently the case, in
constitutional matters only. At the time of writing, the Act had not yet commenced.12
The Seventeenth Amendment will make the following changes to s 167(3) of the
Constitution:
(3) The Constitutional Court—
(a) is the highest court [in all constitutional matters] of the Republic; and
(b) may decide
(i) constitutional matters, and; [and issues connected with decisions on constitutional
matters];
(ii) any other matter, if the Constitutional Court grants leave to appeal on the grounds
that the matter raises an arguable point of law of general public importance which
ought to be considered by that Court; and
(c) makes the final decision whether a matter is [a constitutional matter or whether an issue
is connected with a decision on a constitutional matter] within its jurisdiction.
Accordingly, once the amendment has commenced the court will no longer be a
specialist constitutional court but will acquire an additional jurisdiction to hear appeals
on arguable points of law of general public importance.
These changes, though symbolically significant, will formalise the current de facto
position. As set out below, the distinction between constitutional and other matters
has always been difficult to maintain under the unitary legal system established by
the Constitution.13 The Constitutional Court is likely to continue to control access to
12
In terms of s 11, the Seventeenth Amendment will take effect on a date to be determined by Proclamation.
13
See the discussion in Fraser v Absa Bank 2007 (3) SA 484 (CC) [36]–[40].
97
it by consideration of what the Seventeenth Amendment terms ‘an arguable point of

law of general public importance which ought to be considered by . . . [the
Constitutional] Court’. This phrase is likely to play a similar role to the ‘interests of
justice’ standard, which currently controls access to the court.14
(c) Criteria governing the Constitutional Court’s jurisdiction

(i) Constitutional matters
As was the case under the interim Constitution, the Constitutional Court is a specialist
court and not a court of general jurisdiction. It is intended as the court of final instance in
relation to constitutional matters only, defined in s 167(7) as including ‘any issue
involving the interpretation, protection or enforcement of the Constitution’.
The establishment of a specialist Constitutional Court with jurisdiction that is limited
to constitutional matters presupposes that a distinction can be made between
constitutional matters and other kinds of matters. What then is a constitutional matter?
The seminal decision of the Constitutional Court in the Pharmaceutical Manufacturers
case holds that, under the 1996 Constitution ‘[t]he exercise of all public power must
comply with the Constitution which is the supreme law, and the doctrine of legality
which is part of that law’.15 The implication of this holding is that any challenge to the
validity of any exercise of public power is a constitutional matter, and is ultimately
susceptible to the Constitutional Court’s jurisdiction.16 Furthermore, according to the
Constitutional Court in S v Boesak,17 if regard is had to the provisions of s 172(1)(a) and
s 167(4)(a) of the Constitution, the court’s jurisdiction clearly includes the power to
hear disputes as to whether any law or conduct is inconsistent with the Constitution, as
well as issues concerning the status, powers and functions of an organ of state.18 In
terms of s 167(7), the interpretation, application and upholding of the Constitution itself
are also constitutional matters.19 So too, in terms of s 39(2), are questions arising from
the indirect application of the Bill of Rights—whether an interpretation of legislation,
development of the common law (or a failure to develop it), or application of an
14
See, further, paras 5.3(c)(ii) and 5.4(c)(ii)(bb) below.
15
2000 (2) SA 674 (CC) [20]. Though, at first glance, the phrase ‘exercise of public power’ might be thought to
exclude the private law, the Constitutional Court has made it clear that the Constitution governs the decisions of
the judiciary when it enforces and develops the common law regulating private power: Carmichele v Minister of
Safety and Security 2001 (4) SA 938 (CC) [54].
16
The implication of this conception of constitutional supremacy, the Constitutional Court has admitted, is
that ‘[p]hilosophically and conceptually it is difficult to conceive of any legal issue that is not a constitutional
matter . . .’ (Fraser v Absa Bank Ltd 2007 (3) SA 484 (CC). Carole Lewis has suggested that it is not merely
‘difficult’ but is in fact impossible: the ‘distinction [between constitutional and non-constitutional matters] is, and
always was, an illusion’. See C Lewis ‘Reaching the Pinnacle: Principles, Policies and People for a Single Apex
Court in South Africa’ (2005) 21 SAJHR 509, 512.
17
S v Boesak 2001 (1) SA 912 (CC).
18
Fraser v Absa Bank Ltd 2007 (3) SA 484 (CC) [38]; Wary Holdings (Pty) Ltd v Stalwo (Pty) Ltd 2009 (1) SA
337 (CC) [43].
19
Boesak (note 17 above) [14]. Because it entails the upholding of the Constitution’s provisions on judicial
independence and impartiality, the question whether a judicial officer should recuse himself or herself in civil or
criminal proceedings is a constitutional matter: South African Commercial Catering and Allied Workers Union v
Irvin and Johnson Limited (Seafoods Division Fish Processing) 2000 (3) SA 705 (CC) [2]; S v Basson 2005 (1)
SA 171 (CC) [21]. Whether a court has exercised statutory powers in accordance with the best interests of a child
as required by s 28 of the Constitution is a constitutional matter: Bannatyne v Bannatyne 2003 (2) SA 363 (CC)
[17].
98
open-ended principle of common law such as the doctrine of consistency with public
policy in contract law promotes the spirit, purport and objects of the Bill of Rights.20
Questions arising from the interpretation and application of legislation that has been
enacted to give effect to constitutional rights or in compliance with the legislature’s
constitutional obligations are constitutional matters.21 Ordinarily, a dispute about the
interpretation of ordinary legislation will not raise a constitutional matter unless one of
the contending interpretations and can be said to better promote the spirit, purport and
objects of the Bill of Rights than the others.22
The validity of the extradition of a South African citizen is a constitutional matter
because the citizen will be formally removed from this country to stand trial or serve a
period of imprisonment which would have an impact on the constitutional rights of the
person sought to be extradited.23
A dispute about the correct interpretation and effect of a statutory provision is not a
constitutional matter, unless the provision is capable of two reasonable constructions,
the one being more constitutionally compliant than the other.24
Wide as this conception of a ‘constitutional matter’ is, it is not universal.25 Matters
that turn purely on questions of fact are not constitutional matters. Similarly, matters
involving the straightforward application of law that do not raise constitutional
questions about the validity or the proper interpretation or development of that law are
not constitutional matters.26 A useful illustration that helps to clarify the distinction
between constitutional matters and non-constitutional matters in the context of a
criminal case is provided by S v Boesak. The applicant was convicted by the High Court
on a charge of fraud and three charges of theft and sentenced to six years imprisonment.
An appeal to the SCA was partially successful. The appeal court set aside the conviction
on one of the theft charges, dismissed the appeal on the other charges and reduced
Boesak’s sentence to three years.27 Boesak then sought special leave to appeal to the
Constitutional Court to have the remaining convictions set aside. The grounds of appeal
were that that there was no evidence to support the finding by the SCA that guilt had
been proved beyond reasonable doubt. It was contended that the conclusions drawn by
the SCA were an erroneous interpretation of the facts. This was, so the argument went, a
violation of the right to be presumed innocent in s 35(3)(h) of the Constitution. A second
ground was that because the trial court and the SCA had erred in their evaluation of the
evidence and had wrongly concluded that the guilt of the accused had been proved
20
Boesak (note 17 above) [14]; Carmichele (note 15 above); Barkhuizen v Napier 2007 (5) SA 323 (CC).
21
National Education Health and Allied Workers Union v University of Cape Town 2003 (3) SA 1 (CC) [14]
and Equity Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration 2009 (1) SA
390 (CC) [30] (correctness of an interpretation and application of the Labour Relations Act a constitutional
matter); Ingledew v Financial Services Board: In re Financial Services Board v Van der Merwe 2003 (4) SA 584
(CC) (Promotion of Access to Information Act); Alexkor Ltd v Richtersveld Community 2004 (5) SA 460 (CC)
[23]; Kwalindile Community v King Sabato Dalindyebo Municipality 2013 (5) BCLR 531 (CC) [33] (Restitution
of Land Rights Act); Bato Star Fishing v Minister of Environmental Affairs and Tourism 2004 (4) SA 490 (CC)
[25] (Promotion of Administrative Justice Act); Head of Department, Mpumalanga Department of Education v
Hoërskool Ermelo 2010 (2) SA 415 (CC) [42] (South African Schools Act’s provision on medium of instruction).
22
Chagi v Special Investigating Unit 2009 (2) SA 1 (CC) [14]; Wary Holdings (Pty) Ltd v Stalwo (Pty) Ltd
2009 (1) SA 337 (CC) [47].
23
Director of Public Prosecutions, Cape of Good Hope v Robinson 2005 (4) SA 1 (CC) [20].
24
Chagi v Special Investigating Unit (note 22 above) [14].
25
Basson (note 19 above) [91].
26
Ibid [15].
27
Reported as S v Boesak 2000 (3) SA 381 (SCA).
99
beyond reasonable doubt, the sentence imposed consequent thereto amounted to a

deprivation of the applicant’s freedom without just cause, in violation of s 12(1)(a) of
the Constitution.28
Though in theory classifiable as challenges to the validity of exercises of public
power (exercised, that is, by the High Court and the SCA) neither of these grounds of
appeal, the Constitutional Court held, raised constitutional questions sufficient to make
the case a constitutional matter. Instead, both grounds of appeal were based on the
allegation that the High Court and Supreme Court of Appeal had got the facts wrong.
Even if it was conceded that the courts a quo had indeed got it wrong, this would not
raise a constitutional question. The court identified three broad principles informing the
identification of constitutional matters in criminal cases:
(a) A challenge to a decision of the SCA on the basis only that it is wrong on the facts is not
a constitutional matter.
In the context of section 167(3) of the Constitution the question whether evidence is
sufficient to justify a finding of guilt beyond reasonable doubt cannot in itself be a
constitutional matter. Otherwise, all criminal cases would be constitutional matters, and the
distinction drawn in the Constitution between the jurisdiction of this Court and that of the
SCA would be illusory. There is a need for finality in criminal matters. The structure of the
Constitution suggests clearly that finality should be achieved by the SCA unless a
constitutional matter arises. Disagreement with the SCA’s assessment of the facts is not
sufficient to constitute a breach of the right to a fair trial. An applicant for leave to appeal
against the decision of the SCA must necessarily have had an appeal or review as
contemplated by section 35(3)(o) of the Constitution. Unless there is some separate
constitutional issue raised therefore, no constitutional right is engaged when an appellant
merely disputes the findings of fact made by the SCA.
(b) The development of, or the failure to develop, a common-law rule by the SCA may
constitute a constitutional matter.
This may occur if the SCA developed, or failed to develop, the rule under circumstances
inconsistent with its obligation under section 39(2) of the Constitution or with some other
right or principle of the Constitution.
(c) The application of a legal rule by the SCA may constitute a constitutional matter.
This may occur if the application of a rule is inconsistent with some right or principle of the
Constitution.29
The appeal in Boesak was of type (a), involving the interpretation and application of the
law of evidence and criminal procedure without any issue being raised involving the
interpretation or application of the Constitution.30
Boesak is an important clarification of the holding in Pharmaceutical
Manufacturers. Ultimately, all public power, whether exercised by the legislatures,
executive or the judiciary, is controlled by the Constitution. But this is not the same
as saying that all litigation challenging the legality of the exercise of public power
raises constitutional questions that are worth considering. An application of the
ordinary rules of evidence and criminal procedure to a decision to convict a person
of a criminal charge is an application of settled law, which does not implicate any
28
See [7]–[9] of the Constitutional Court decision (note 17 above).
29
Ibid [15] (footnotes omitted).
30
It is instructive to contrast Boesak with S v Thebus 2003 (6) SA 505 (CC) (question whether trial court’s
drawing of adverse inferences from failure to disclose an alibi defence prior to trial was a violation of accused’s
right to silence is a constitutional matter).
100
issue (ie, ‘dispute’, ‘argument’ or ‘contention’) about the constitutional validity of

that law or its proper interpretation in the light of constitutional principles.31
(ii) The interests of justice

The characterisation of a claim as a constitutional matter is necessary because of the
limited jurisdiction of the Constitutional Court. In addition to this jurisdictional question
there is a separate consideration: the merits of the claim. Once it is established that a
case does raise constitutional matters, the assessment whether the case should be heard
by the Constitutional Court rests on the requirement that access to the court must be in
the ‘interests of justice’.32 Not every matter raises a constitutional question that is
worthy of attention by the Constitutional Court and it will not be in the interests of
justice for the court to adjudicate on such questions. Similarly, in a matter that raises
both constitutional and non-constitutional issues, the principle of avoidance dictates
that, where possible, the non-constitutional issues must be considered and disposed of
first.33
(iii) Issues connected with decisions on constitutional matters

Under the interim Constitution the words ‘matter’ and ‘issue’ broadly corresponded to
the synonyms ‘case’ and ‘question’. A single ‘matter’ (case) could give rise to a number
of ‘issues’ (questions for decision). The Constitutional Court had jurisdiction only over
the constitutional issues that might arise in any particular matter.34
The 1996 Constitution requires us to abandon this earlier understanding of the
distinction between ‘matter’ and ‘issue’. The Constitutional Court hears ‘constitutional
matters’, a concept that it has interpreted to mean any issue relating to the interpretation
or application of the Constitution arising in a case. To put it another way that avoids the
confusing use of the word ‘issue’, the questions of constitutional significance arising in
a case are constitutional matters. The word ‘issue’ should perhaps be reserved for the
particular way in which it is used in the phrase ‘issues connected with decisions on
constitutional matters’ in s 167(3)(b). Such issues are questions that are not
constitutional matters but that must nevertheless be considered in order to reach a
decision on a constitutional matter.35
31
In Lane and Fey NNO v Dabelstein 2001 (2) SA 1187 (CC) the court reiterated (this time in the context of
civil proceedings) that an allegation that the SCA had erred in its assessment of the facts is not a constitutional
issue: ‘The Constitution does not and could hardly ensure that litigants are protected against wrong decisions’
([4]). See also Phoebus Apollo Aviation CC v Minister of Safety and Security 2003 (2) SA 34 (CC). O’Regan J’s
explanation in Rail Commuters Action Group and others v Transnet Ltd t/a Metrorail 2005 (2) SA 359 (CC) [51]
is helpful: ‘[Boesak] does not imply that disputes of fact may not be resolved by this Court. It states merely that
where the only issue in a criminal appeal is dissatisfaction with the factual findings made by the SCA, and no
other constitutional issue is raised, no constitutional right is engaged by such a challenge’.
32
The criterion is used to assess applications for leave to appeal and applications for direct access. See, further,
para 5.4(c)(ii)(bb) and para 5.4(d) below.
33
See Fredericks v MEC Education and Training, Eastern Cape 2002 (2) SA 693 (CC) [11] (a matter is a
constitutional matter where the applicant’s case stands or falls on the success of an argument that state conduct
has violated rights in the Bill of Rights); Ex parte Minister of Safety and Security: in re S v Walters 2002 (4) SA
613 (CC) [62]–[67] (in a criminal case, a constitutional issue, however important it might be, should be kept in
abeyance for determination only if and when it proved necessary for determining the guilt or innocence of the
accused).
34
See the discussion of this terminology by Didcott J in S v Vermaas 1995 (3) SA 292 (CC) [10].
35
In a tacit recognition of its irremediable obscurity, the Constitution Seventeenth Amendment Act will
remove the phrase from s 167(3).
101
The leading case on the interpretation of s 167(3)(b) is Alexkor Ltd v Richtersveld

Community.36 In appeal from the Supreme Court of Appeal, the Constitutional Court
had to consider a claim for restitution of land brought by the Richtersveld Community in
terms of the Restitution of Land Rights Act.
The Act, in fulfilment of provisions of the interim Constitution and s 25 of the 1996
Constitution, grants a right to restitution of land. The right is available on proof of the
existence of a ‘right in land’ after 1913 and dispossession of that right by a racially
discriminatory law or practice. The SCA found in favour of the Richtersveld
Community on these questions. The questions on appeal to the Constitutional Court
were (1) a contention that the rights of the Richtersveld Community in the land had been
terminated by the annexation of that land by the British Crown in 1847 and (2) any
dispossession of the land after 1913 was not the consequence of racially discriminatory
laws or practices. Were these questions within the Constitutional Court’s jurisdiction?
The interpretation and application of legislation that has been enacted to give effect to
constitutional rights is a constitutional matter. So any aspects of the appeal bearing on
the interpretation and application of the Restitution Act are clearly constitutional
matters.37 But the adjudication of the appeal necessarily involved more than this:
A more difficult question is to determine whether this Court has jurisdiction to deal with all
issues bearing on or related to establishing the existence of these matters. For example, the
question might be asked whether the issue concerning the existence of the Community’s
rights in land prior to the colonisation of the Cape, or the content or incidence of such rights,
constitute in themselves ‘constitutional matters’; the same might be asked concerning the
continued existence of such rights after the British Crown’s annexation of the Cape in 1806,
or after the 1847 Proclamation or the subsequent statutory and other acts thereafter.38
Such issues are questions of fact and law that are not constitutional matters. They are
however susceptible to consideration by the court because they are ‘issues connected
with decisions on constitutional matters’. The phrase, the Constitutional Court held, was
intended
to extend the jurisdiction of this Court to matters that stand in a logical relationship to those
matters that are primarily, or in the first instance, subject to the Court’s jurisdiction. The
underlying purpose is to avoid fettering, arbitrarily and artificially, the exercise of this
Court’s functioning when obliged to determine a constitutional matter. If any anterior matter,
logically or otherwise, is capable of throwing light on or affecting the decision by this Court
on the primary constitutional matter, then it would be artificial and arbitrary to exclude such
consideration from the Court’s evaluation of the primary constitutional matter. To state it
more formally, when any factum probandum of a disputed issue is a constitutional matter,
then any factum probans, bearing logically on the existence or otherwise of such factum
probandum, is itself an issue “connected with [a] decision on [a] constitutional matter”.39
In the subsequent case of S v Basson, the Constitutional Court held that, in an appeal on
the question whether a trial judge should have recused himself, ‘legal and factual issues
36
Note 21 above.
37
Ibid [23].
38
Ibid [24].
39
Ibid [30] (footnotes omitted). Determination, for example of the question whether the Richtersveld
Community had rights to their land prior to annexation in 1847 is not in itself a constitutional matter but is
connected with a decision on a constitutional matter, namely, the question as to whether the Community, after
1913, had a ‘right in land’. See the discussion at [32].
102
that need to be decided in order to determine that matter will themselves be issues
connected with a decision on a constitutional matter’.40
The award of costs in a constitutional matter raises a constitutional issue, giving
the Constitutional Court jurisdiction to hear an appeal against the award.41
(iv) Supervisory and exclusive jurisdiction

The court’s jurisdiction can be divided into supervisory jurisdiction (the power to hear
appeals from and to confirm decisions of other superior courts, particularly High Courts
and the Supreme Court of Appeal) and exclusive jurisdiction (exercised by the
Constitutional Court alone).42 The purpose of reserving certain matters for the exclusive
jurisdiction of the Constitutional Court is to preserve the ‘comity between judicial
branch . . . and the legislative and executive branches of government’ by providing that
only the highest court should be able to intrude on the ‘domain of the principal
legislative and executive organs of state’43 by deciding issues in ‘crucial political
areas’.44
(aa) Expansion of the Constitutional Court’s supervisory jurisdiction

Under the interim Constitution, the Constitutional Court had exclusive jurisdiction to
enquire into the constitutionality of Acts of Parliament,45 disputes over the
constitutionality of Parliamentary Bills (a power known as abstract review) and
constitutional disputes between organs of state at national level.46 For purposes of Bill
of Rights litigation, the first of these was the most important. Because the Constitutional
Court had exclusive jurisdiction to declare on the validity of an Act of Parliament, the
interim Constitution contained a complicated system for the referral to the
Constitutional Court of matters in which the constitutionality of Parliamentary
legislation was raised.47
The 1996 Constitution simplified things considerably by providing for jurisdiction to
be exercised concurrently between the Constitutional Court, the Supreme Court of
Appeal and the High Courts in respect of direct challenges to the constitutionality of all
forms of legislation. In other words, a dispute over the constitutionality of an Act of
Parliament, provincial legislation or delegated legislation can be heard by a High Court,
the Supreme Court of Appeal or the Constitutional Court. However, such a dispute will
usually be heard at first instance in the High Court and, in an appeal, by the SCA.
40
Note 19 above [22]. See also CUSA v Tao Ying Metal Industries 2009 (2) SA 204 (CC) [54].
41
Biowatch Trust v Registrar Genetic Resources 2009 (6) SA 232 (CC) [10]; Wiese v Government Employees’
Pension Fund 2012 (6) BCLR 599 (CC) [25].
42
Von Abo v President of the Republic of South Africa 2009 (5) SA 345 (CC) [28].
43
President of the Republic of South Africa v United Democratic Movement 2003 (1) SA 472 (CC) [20].
44
President of the Republic of South Africa v South African Rugby Football Union 1999 (4) SA 147 (CC) [72];
Doctors for Life International v Speaker of the National Assembly 2006 (6) SA 416 (CC) [22].
45
Zantsi v Council of State, Ciskei 1995 (4) SA 615 (CC) [36]–[41]. However, s 101(7) of the interim
Constitution granted the Supreme Court the power to grant an interim interdict or other interim relief pending
determination by the Constitutional Court of any matter within its exclusive jurisdiction, notwithstanding that the
grant of such relief may have had the effect of suspending or otherwise interfering with the application of the
provisions of an Act of Parliament.
46
Section 98(2) read with s 101(3) of the interim Constitution.
47
The intricacies of the referral procedures of the interim Constitution are illustrated by a number of
judgments of the Constitutional Court finding referrals to be procedurally incompetent. See, for example,
Luitingh v Minister of Defence 1996 (2) SA 909 (CC), Motsepe v Commissioner for Inland Revenue 1997 (2) SA
898 (CC), Brink v Kitshoff NO 1996 (4) SA 197 (CC).
103
The expansion of concurrent jurisdiction is however subject to an important

limitation. Section 167(5) requires the Constitutional Court to confirm any order made
by either the Supreme Court of Appeal or the High Court to the effect that an Act of
Parliament, a provincial Act or conduct of the President is invalid, before that order has
any force. Practically, this means that where the constitutionality of, for example, a
provision of an Act of Parliament is in dispute, the proper court to approach for an order
declaring the section invalid is the local High Court.48 The High Court may declare the
provision invalid but its order will have no force or effect until it has been confirmed by
the Constitutional Court.
In Zantsi v Council of State, Ciskei,49 the Constitutional Court held that the laws
passed by the Parliaments or legislatures of the former TBVC states do not qualify as
‘Acts of Parliament’ for purposes of s 101(3)(c)of the interim Constitution.50 Since
homeland legislation can also not be considered ‘a provincial Act’, it follows that a High
Court or the Supreme Court of Appeal would have the power to declare TBVC
legislation invalid without the necessity for confirmation of such a declaration by the
Constitutional Court.
(bb) Scope of the Constitutional Court’s exclusive jurisdiction

Under the 1996 Constitution, the Constitutional Court has exclusive jurisdiction over
constitutional disputes between organs or state at national or provincial levels of
government concerning the constitutional status, powers or functions of any of those
organs of state;51 disputes over the constitutionality of provincial or Parliamentary
Bills;52 disputes about the constitutionality of an amendment to the Constitution;53
decisions whether Parliament or the President has failed to comply with a constitutional
duty and the certification of provincial constitutions.54
48
This is a major change from the position under the interim Constitution, which required a litigant wishing to
challenge an Act of Parliament first to approach a local or provincial division of the Supreme Court for an order
referring the matter to the Constitutional Court. The Constitutional Court would then hear the matter, providing
that the referral was valid.
49
Note 45 above.
50
This meant that, under the interim Constitution, provincial and local divisions of the Supreme Court had the
power to declare such legislation invalid and were not required to refer the issue to the Constitutional Court. See
for example, Prior v Battle 1999 (2) SA 850 (Tk) (declaring provisions of the Transkei Marriage Act 21 of 1978
invalid as violations of the interim Constitution).
51
These are usually disputes about the constitutional distribution of legislative and executive power between
the provincial and national spheres of government. See, for example, Premier, Western Cape v President of the
Republic of South Africa 1999 (3) SA 657 (CC), which was heard by the Constitutional Court at first instance. In
National Gambling Board v Premier, KwaZulu-Natal 2002 (2) SA 715 (CC) the court held that the phrase
‘constitutional status, powers or functions’ in s 167(4)(a) was confined to status, powers or functions derived
directly from the Constitution and not to those provided for in terms of legislation. It also held that a dispute
between a provincial government and the national government about whether an Act of Parliament and a
provincial Act are in conflict is a dispute about the interpretation and effect of the legislation and not about the
constitutional powers of Parliament or the provincial legislature. The former type of dispute is therefore not
within the exclusive jurisdiction of the Constitutional Court.
52
Specifically, referrals by the President or provincial premiers of constitutional questions on Bills presented
to them for assent: s 79(4) and s 121(2).
53
The scope of the Constitutional Court’s jurisdiction in this regard is confined to procedural challenges to
constitutional amendments: United Democratic Movement v President of the Republic of South Africa (No 2)
2003 (1) SA 495 (CC) [12]–[13]; Matatiele Municipality v President of the Republic of South Africa 2006 (5) SA
47 (CC) [34] (exclusive jurisdiction to determine challenges to Constitutional amendments based on the right of
public participation in legislative processes).
54
Section 167(4).
104
The most difficult item on this list is the Constitutional Court’s exclusive jurisdiction
to decide ‘that Parliament or the President has failed to fulfil a constitutional
obligation’.55 Its meaning was first discussed by the Constitutional Court in President of
the Republic of South Africa v South African Rugby Football Union, where two possible
readings were proposed.56 Understood widely, the provision could refer to all questions
concerning the constitutional validity of conduct of the President or Parliament.57 For
example, since the state must ‘respect, protect, promote and fulfil the rights in the Bill of
Rights’58 a challenge to a provision of an Act of Parliament on the grounds that it
infringes the Bill of Rights could also be characterised as a challenge that Parliament, by
passing rights-infringing legislation, has failed to fulfil its constitutional obligations. But
obviously a narrower reading of the provision is required, since the wide reading would
bring almost all constitutional matters within the exclusive jurisdiction of the
Constitutional Court, contradicting the Constitution’s express grant of jurisdiction to the
High Courts and the Supreme Court of Appeal to ‘make an order concerning the
constitutional validity of an Act of Parliament, a provincial Act or any conduct of the
President’.59 The court left the precise scope of this narrower interpretation undecided in
SARFU, and the issue was only revisited several years later in the decisions of the
Supreme Court of Appeal in King v Attorneys’ Fidelity Fund Board of Control60 and of
the Constitutional Court in Doctors for Life.61
Both decisions deal with a challenge to the validity of an Act of Parliament on the
basis that there was inadequate public involvement prior to its enactment.62 Both courts
held that such a challenge fell within the terms of s 167(4)(e), though both strained to
say exactly why this was so.63 The Constitutional Court decision sets out the following
general test:
The principle underlying the exclusive jurisdiction of this Court under section 167(4) is that
disputes that involve important questions that relate to the sensitive areas of separation of
powers must be decided by this Court only. Therefore, the closer the issues to be decided are
to the sensitive area of separation of powers, the more likely it is that the issues will fall
within section 167(4). It follows that where a dispute will require a court to decide a crucial
political question and thus intrude into the domain of Parliament, the dispute will more
likely be one for the exclusive jurisdiction of this Court.64
Though this test appears to deal with all items on the list of exclusive matters in
s 167(4), all except para (e) are quite straightforward. In applying the test to the
obligation to facilitate public involvement, a distinction was drawn between
‘constitutional provisions that impose obligations that are readily ascertainable and are
55
Section 167(4)(e). Section 167(4) (the list of matters within the exclusive jurisdiction of the Constitutional
Court) is unaffected by the changes to the jurisdiction of the court proposed in the draft Constitution Fourteenth
Amendment Bill. GN 2023 of 14 December 2005.
56
President of the Republic of South Africa v South African Rugby Football Union 1999 (2) SA 14 (CC).
57
Ibid [25].
58
Section 7(2).
59
Section 172(2)(a); SARFU (note 56 above) [25].
60
King v Attorneys’ Fidelity Fund Board of Control 2006 (1) SA 474 (SCA).
61
Doctors for Life International v Speaker of the National Assembly 2006 (6) SA 416 (CC).
62
Section 59(1)(a): ‘The National Assembly must . . . facilitate public involvement in the legislative and other
processes of the Assembly and its committees’. The same duty is imposed on the National Council of Provinces
by s 72(1)(a) and on the provincial legislatures by s 118(1)(a).
63
See the critical note by IM Rautenbach ‘Die Konstitusionele Hof se uitsluitelike juridiksie oor die
nienakoming van sekere pligte van die Parlement’ 2007 TSAR 581.
64
Doctors for Life (note 61 above) [24].
105
unlikely to give rise to disputes, on the one hand, and those provisions which impose the
primary obligation on Parliament to determine what is required of it, on the other’.65 The
public involvement provision was an example of the latter type of obligation.66
Parliament had considerable leeway in determining how it intended to comply. Review
by a court of Parliament’s exercise of its discretion in this regard ‘trenches on the
autonomy of Parliament to regulate its own affairs and thus the principle of the
separation of powers’;67 decisions on whether Parliament had complied with this duty
therefore constituted ‘judicial intrusion into the domain of the principal legislative organ
of the state. Such an order will inevitably have important political consequences’.68
While this leaves the ambit of s 167(4)(e) somewhat fuzzy, the decisions do make
it clear that challenges alleging a breach of Parliament’s public involvement
obligations are a matter of exclusive jurisdiction. It is also clear that challenges to
Parliamentary legislation on grounds of an infringement of the Bill of Rights69 or on
‘manner and form’ grounds involving breach of a clear rule relating to the legislative
process are not.70
(v) Functions of the Constitutional Court

The provisions that we have considered so far suggest that, as in the interim
Constitution, the Constitutional Court is ordinarily an appellate court. This means that it
is usually reached by way of an appeal on a constitutional issue from a decision made by
a court below it. In matters in which it has concurrent jurisdiction with other courts
(encompassing most matters that will arise in the context of Bill of Rights litigation), the
Constitutional Court functions as a court of final instance. In the limited number of
matters over which it has exclusive jurisdiction, the Constitutional Court may be
approached directly.71 Since the court’s exclusive jurisdiction is mostly confined to
issues of constitutional law such as disputes between organs of state and the validity of
provincial constitutions, exclusive jurisdiction no longer has much significance for
human rights practitioners. In exceptional cases (usually involving matters that are
extremely urgent and of great public importance) the Constitutional Court may allow
direct access and hear, as a court of first instance, a matter that is within its concurrent
jurisdiction.72
To summarise the points made in this section: the Constitutional Court has four
principal functions. First, acting as a court of first instance, it hears matters within its
exclusive jurisdiction. Because these are usually disputes relating to matters of
constitutional law involving organs of state or applications for certification of provincial
constitutions, this function is not of much practical importance from the point of view of
human rights practitioners. Secondly, in exceptional cases, the Constitutional Court may
grant direct access to hear a matter within its concurrent jurisdiction. Once again, this
65
Ibid [25].
66
An example of the former was the requirement that legislation is passed by a specific majority. Ibid [25].
67
Ibid [26].
68
Ibid [27].
69
Ibid [18]; King (note 60 above) [16].
70
Doctors for Life (note 61 above) [25] (a court simply ‘decides the formal question whether there was, for
example, the two-thirds majority required to pass the legislation’); King (note 60 above) [17] (breach of
‘[p]rocedural requirements that are prerequisites to validity do not impose obligations [on Parliament]’).
71
See, further, para 5.4(a) below.
72
See, further, para 5.4(d) below.
106
function has little practical significance, given its exceptional nature. Of far greater
significance for human rights practitioners are the third and fourth functions of the
Constitutional Court. The third function is to hear appeals from other courts relating to
constitutional issues. The fourth is to confirm orders made by other courts declaring
Parliamentary or provincial legislation or conduct of the President constitutionally
invalid. This means that the Constitutional Court hears matters at first instance only in
very few and exceptional cases.
(vi) Composition and quorum of the Constitutional Court

The Constitutional Court consists of the Chief Justice, the Deputy Chief Justice and nine
judges.73 It is the practice of the court to sit en banc, and the Constitution requires
matters to be heard by a minimum of eight judges.74 Typically, a decision of the
Constitutional Court consists of an order (for example, dismissing or upholding an
appeal, declaring a law invalid or confirming the decision of the court a quo) and the
reasons for that order. The decision of a majority of the judges hearing a matter on the
order to be made in a matter is the decision of the court. Where there is no order of the
court that is supported by a majority of the members, the application or appeal will be
dismissed.75
Justices of the Constitutional Court are appointed by the President from a list of
recommended candidates presented by the Judicial Service Commission.76 There is a
power permitting the President, on the recommendation of the Minister of Justice acting
with the concurrence of the Chief Justice, to appoint acting judges to the Constitutional
Court if there is a vacancy or a judge is absent.77 This power is used to fill temporarily a
vacancy in a Constitutional Court post due to the retirement, ill-health or death of a
Justice or an absence of a Justice due to periods of leave, personal circumstances or
illness. It cannot be used to substitute an acting justice to hear a matter in the event of
the recusal of one or more of the Justices.78
(d) Constitutional jurisdiction of the Supreme Court of Appeal

The interim Constitution established a clear division between the jurisdiction of the two
appellate courts in relation to constitutional and non-constitutional issues. In non-
constitutional cases the Appellate Division was the court of final instance in the Republic. In
constitutional cases the Constitutional Court was the court of final instance. Section 101(5)
of the interim Constitution specifically deprived the Appellate Division of the constitutional
jurisdiction possessed by the Constitutional Court. The implication of this arrangement was
that the Constitutional Court and the Appellate Division had equal status, and that no appeal
73
Section 167(1) of the Constitution.
74
Section 167(2): ‘A matter before the Constitutional Court must be heard by at least eight judges’. Since
‘heard’ suggests court proceedings, it is not clear whether the quorum requirement applies also to the numerous
decisions that are not made in open court, such as decisions to grant or refuse leave to appeal or applications for
direct access. The court’s practice is to hedge its bets on this question by making such ‘behind the scenes’
decisions in a conference attended by a minimum of eight judges. See S v Pennington 1997 (4) SA 1076 (CC)
[51] and the text accompanying note below.
75
Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council 1999 (1) SA 374
(CC) [79], [115] (five judges in favour of upholding appeal and five members in favour of dismissing it; since no
majority in favour of reversal, decision of court a quo left undisturbed).
76
77
Section 175.
78
Judge President Hlophe v Premier, Western Cape 2012 (6) SA 13 (CC) [38], [42].
107
lay to the Constitutional Court from a decision of the Appellate Division or vice versa. A
non-constitutional case could proceed as far as the Appellate Division while a constitutional
case could proceed as far as the Constitutional Court.
The court structure established by the 1996 Constitution departs from this
arrangement. Unlike the Appellate Division, the Supreme Court of Appeal has
jurisdiction to hear and decide constitutional issues. The SCA is empowered to ‘hear
appeals in any matter’.79 Since the matters from which it will hear appeals from the High
Court may include constitutional matters, it follows that the SCA may hear
constitutional appeals.80 In addition, s 167(5) envisages that the SCA may order that
legislation is invalid for constitutional reasons, and provides for confirmation of such an
order by the Constitutional Court. Insofar as the Constitutional Court is the court of final
instance in relation to constitutional issues, it follows that the Constitutional Court may
hear appeals from the SCA in relation to such issues.81 Where a matter does not include
a constitutional issue, the SCA will be the court of final instance. However, as set out in
further detail below, the Constitution’s jurisdictional scheme envisages that appeals
raising only constitutional issues will proceed directly from a High Court to the
Constitutional Court and will not, in the ordinary course of events, involve the SCA.
This suggests that the SCA will usually function as the final appellate court in respect of
non-constitutional matters, and will rarely deal with matters involving direct application
of the Constitution. Where, however the SCA does deal with a constitutional issue, a
further appeal on that issue will be available to the Constitutional Court.
(e) Constitutional jurisdiction of the High Courts

The Constitution confers wide jurisdiction on the High Courts in respect of
constitutional matters. High Courts may decide any constitutional matter except matters
within the exclusive jurisdiction of the Constitutional Court. As for the High Courts’
jurisdiction in non-constitutional matters, the Constitution divides this into two types.
The first is jurisdiction conferred on the High Court by national legislation.82 The
second is the residual or inherent jurisdiction referred to in s 173:
Inherent power
173. The Constitutional Court, Supreme Court of Appeal and High
Courts have the inherent power to protect and regulate their own pro-
cess, and to develop the common law, taking into account the interests
of justice.
This refers to the jurisdiction of the court that derives from the common law and from
those unwritten powers that the court possesses to enable it to carry out its judicial
functions.83 The effect of these sections is that the High Courts may hear any matter that
is not excluded from their jurisdiction by the Constitution or by legislation. As we have
79
Section 168(3).
80
S v Pennington (note 74 above) [8].
81
Ibid [11].
82
Section 171.
83
J Taitz The Inherent Jurisdiction of the Supreme Court (1985) 4–5. The extent of this power in relation to the
power of the Constitutional Court to regulate its process was considered in S v Pennington (note 74 above)
[22]–[23].
108
seen, the Constitution provides that High Courts may hear any constitutional matter
except those in the exclusive jurisdiction of the Constitutional Court. A High Court may
declare conduct or legislation invalid but in the case of Parliamentary and provincial
legislation and conduct of the President its order has no force until it has been confirmed
by the Constitutional Court.
The power conferred on the High Courts, Supreme Court of Appeal and
Constitutional Court by s 173 has been held not to be an ‘unbounded additional
instrument to limit or deny vested or entrenched rights. The power in section 173
vests in the judiciary the authority to uphold, to protect and to fulfil the judicial
function of administering justice in a regular, orderly and effective manner. Said
otherwise, it is the authority to prevent any possible abuse of process and to allow a
Court to act effectively within its jurisdiction’.84
(f) Grant of interim relief by the Supreme Court of Appeal or a High

Court in constitutional matters
Section 172(2)(b) provides that:
A court which makes an order of constitutional invalidity may grant a temporary interdict or
other temporary relief to a party, or may adjourn the proceedings, pending a decision of the
Constitutional Court on the validity of that Act or conduct.
An award of interim relief will be appropriate in matters relating to the validity of
provincial or national legislation or conduct of the President. In these matters, while a
High Court or the Supreme Court of Appeal may enquire into the validity of such
legislation or conduct, an order of invalidity is without effect until the Constitutional
Court has confirmed the order. In such cases, interim relief—usually an interim interdict
preserving the status quo and temporarily preventing any further action in terms of the
impugned legislation taking place which would prejudice the fundamental rights of the
applicant—may be granted pending the confirmation or variation of the order of
invalidity by the Constitutional Court.85
What are the criteria for assessing whether interim relief should be granted
pending the final determination of the Constitutional Court? The usual test for the
award of an interim interdict is the balance of convenience: the interests of the
applicant weighed against should be weighed up against the interests of the
respondents, together with the public interest.86 A similar test should be applied in
84
South African Broadcasting Corporation Ltd v National Director of Public Prosecutions 2007 (1) SA 523
(CC) [90].
85
See, for example, Rudolph v Commissioner for Inland Revenue 1994 (3) SA 771 (W). The applicant’s
premises were searched and documents were seized by agents of the Commissioner. The probability was that
searches and seizures would continue for some time in the future. The applicant contended that the section of the
Income Tax Act 58 of 1962 from which the Commissioner gained his powers of search and seizure were
unconstitutional. Under the jurisdictional scheme of the interim Constitution the Supreme Court had no power to
grant an order of invalidity of Parliamentary legislation. The matter had to be referred to the Constitutional Court
by the Supreme Court. In the meantime, however, the searches would continue. The applicant therefore asked the
Supreme Court for an interim interdict preventing the Commissioner from making any further searches or
utilising any documents already seized pending the determination by the Constitutional Court of the
constitutionality of the relevant section of the Income Tax Act. (The application was refused because of the
absence in the interim Constitution at the time of a provision similar to s 172(2)(b).)
86
Ferreira v Levin NO 1995 (2) SA 813 (W) 833–842 (dealing with the criteria for granting an interim
interdict pending referral of a constitutional issue beyond the jurisdiction of the Supreme Court to the
Constitutional Court). See also Reitzer Pharmaceuticals (Pty) Ltd v Registrar of Medicines 1998 (4) SA 660 (T)
109
the case of an interim interdict prohibiting conduct authorised by impugned

legislation: the harm that would be suffered by the applicants and people similarly
situated A further consideration is the separation of powers harm that may ensue
from a court temporarily preventing the exercise of constitutional and statutory
powers and functions of organs of state.87
We have seen that the Constitution sets aside a number of issues for the exclusive
jurisdiction of the Constitutional Court: to simplify, these are (a) disputes between
organs of states concerning their constitutional status, powers or functions; (b)
abstract review of the constitutionality of Bills; (c) the constitutionality of
amendments to the Constitution; (d) decisions that Parliament or the President have
failed to fulfil a constitutional obligation; (e) certification of provincial constitutions.
It may be necessary to approach a High Court on an urgent basis and in a matter of
exclusive jurisdiction, seeking interim relief at a time when the Constitutional Court
is in recess.88 Can a High Court award relief in such cases? The answer depends on
whether the High Court, in deciding to award an interim interdict, is required to
make a final determination of the rights of the parties or the constitutional validity of
the law or conduct in question. If it does not, the High Court will, depending on the
provision that grants exclusive jurisdiction, have jurisdiction to grant interim relief.89
Therefore, although only the Constitutional Court ‘may decide disputes between
organs of state’ concerning their constitutional status, powers or functions, provided
that a High Court is not called upon to decide the dispute, it has jurisdiction to grant
interim relief pending the final determination of such a dispute.90
In President of the Republic of South Africa v United Democratic Movement91 the
Constitutional Court had to consider the validity of a High Court order suspending
the operation of four Acts of Parliament (including two constitutional amendments).
According to the Constitutional Court, the preferable approach is that where
legislation is impugned as unconstitutional, and it appears that action pursuant to its
terms is imminent and is likely to cause serious and irreparable prejudice, in all but
the most exceptional cases, interim relief could be designed to prevent such prejudice
pending a decision by a court having jurisdiction to decide on the constitutionality of
the legislation. In making such an order, a court would not have to decide on the
constitutionality of the legislation. If the constitutionality of the legislation can be
considered by the High Court (ie, it is within concurrent jurisdiction), the order
could be made pending such consideration, and if found unconstitutional, pending an
application for confirmation by the Constitutional Court. This would not be the same
(alleged harm that might be suffered by applicant outweighed by interest of respondents and public interest in the
regulation and control of medicines in terms of impugned legislation). On interdicts in constitutional litigation,
see, further, Chapter 8 below.
87
National Treasury v Opposition to Urban Tolling Alliance 2012 (6) SA 223 (CC) [41]–[47]; see also
International Trade Administration Commission v SCAW SA (Pty) Ltd 2012 (4) SA 618 (CC) [101]–[104].
88
In President of the Republic of South Africa v United Democratic Movement 2003 (1) SA 472 (CC) [30] the
Constitutional Court seemed to indicate that it was the appropriate court to approach directly for interim relief in
matters of exclusive jurisdiction, unless the matter was one of extreme urgency and the Constitutional Court was
in recess.
89
National Gambling Board (note 51 above) [50]. The court held further ([51]) that because of the phrasing of
s 80 and s 122, only the Constitutional Court can grant interim relief in applications made under s 167(4)(c)
(application by members of legislature for abstract review of Bills).
90
Ibid [53].
91
Note 88 above.
110
as an order suspending the coming into force of the impugned legislation.92 As for
interim interdicts relating to constitutional amendments, these can be granted if the
interim relief would in no way decide the constitutionality of the legislation in
question and its terms would only apply pending a decision by the Constitutional
Court.93 Such interim relief should only be granted where it is strictly necessary in
the interests of justice. In determining the interests of justice, the court must balance
the interests of the person seeking interim relief against the interests of others who
might be affected by the grant of such relief. The interim relief should be strictly
tailored to interfere as little as possible with the operation of the legislation and all
the more so where the legislation relates to an amendment to the Constitution.94
(g) Constitutional jurisdiction of the magistrates’ courts

Section 170 provides:
Magistrates’ Courts and other courts

170. Magistrates’ Courts and all other courts may decide any matter
determined by an Act of Parliament, but a court of a status lower than a
High Court may not enquire into or rule on the constitutionality of any
legislation or any conduct of the President.
This provision does not confer jurisdiction on magistrates’ courts to enforce the
Constitution. However it does authorise legislation conferring such jurisdiction, with the
exception of jurisdiction to enquire into the validity of ‘any legislation’ or any conduct
of the President.95 The phrase ‘any legislation’ includes original legislation
(Parliamentary, provincial or municipal legislation) in addition to all forms of delegated
legislation (proclamations, regulations, rules). Magistrates’ courts are prohibited from
enquiring into or ruling on ‘the constitutionality’ of any such legislation. This includes
challenges to legislation on the grounds that it is in conflict with the Bill of Rights or any
of the other provisions of the Constitution. This leaves it open for an Act of Parliament
to confer constitutional jurisdiction on magistrates’ courts to enquire into the
constitutional validity of (1) administrative action (but not delegated legislation and
conduct of the President),96 (2) the common law, and (3) customary law.
In terms of s 110 of the Magistrates’ Courts Act 32 of 1944, magistrates’ courts
could not pronounce on the validity of a provincial ordinance or statutory
proclamation of the President but ‘every such court shall be competent to pronounce
upon the validity of any statutory regulation, order or bye-law’. This section referred
to the power of a magistrate’s court to rule on the validity of the specified forms of
92
Ibid [28].
93
Ibid [29].
94
Ibid [32].
95
The reference to ‘an Act of Parliament’ in s 170 may be contrasted with the reference to ‘national
legislation’ elsewhere in the Constitution, particularly s 171 (court rules and procedures must be prescribed by
national legislation). ‘National legislation’ is defined in s 239 to include ‘subordinate legislation made in terms of
an Act of Parliament’. This means that legislation conferring jurisdiction on magistrates’ courts must be an Act of
Parliament and not subordinate legislation.
96
On the meaning of ‘conduct of the President’ see para 5.4(b)(iv) below.
111
delegated legislation on the basis of the common-law rules and principles of

administrative law. A magistrate’s court could therefore, for example, declare
Ministerial regulations invalid because they were ultra vires, or on the basis of some
other common-law ground of administrative law.97
In order to ensure that s 110 was not read so as to confer jurisdiction on the
magistrates’ courts to declare the specified forms of delegated legislation invalid
because of inconsistency with the Constitution, s 110 was amended in 1997 by the
Magistrates’ Courts Second Amendment Act 80 of 1997. The amended s 110 now
reads as follows:
Pronouncements on validity of legislation

110. (1) A [magistrate’s] court shall not be competent to pronounce
on the validity of any law or conduct of the President.
(2) If in any proceedings before a court it is alleged that—
(a) any law or any conduct of the President is invalid on the grounds
of its inconsistency with a provision of the Constitution; or
(b) any law is invalid on any ground other than its constitutionality, the
court shall decide the matter on the assumption that such law or
conduct is valid:
Provided that the party which alleges that a law or conduct of the
President is invalid, may adduce evidence regarding the invalidity of
the law or conduct in question.
The amended s 110(1) prevents magistrates’ courts from pronouncing on the validity of
‘any law’. ‘Any law’ here means any form of original or delegated legislation or the
common law98 and ‘pronounce on the validity’ means to enquire into the validity of law
or conduct of the President on constitutional grounds. Section 110(2) provides that if an
allegation is raised in magistrates’ court proceedings that a law or conduct of the
President is invalid, whether on administrative law or constitutional grounds, the
magistrate must continue and decide the matter on the assumption that the law or
conduct in question is valid.99 Litigants who wish to pursue the constitutional issue will
have to do so on appeal to the High Court. The result is that if a litigant in the course of,
say, criminal proceedings, challenges the constitutionality of a law he or she must incur
the expense and endure the practical difficulties of pursuing an appeal in what may often
be a geographically remote High Court. Raising a constitutional issue for the first time
on appeal has the additional hazard that there may have been no evidence (or inadequate
evidence) on that issue adduced in the court a quo. This may complicate the adjudication
of the constitutional issue by obliging the High Court either to refer the matter back to
the court a quo for evidence to be led, or to hear it itself. For this reason, the proviso to
97
L Baxter Administrative Law (1984) 754–755.
98
This follows from the use of the word ‘law’ rather than ‘legislation’, which is used in s 170 of the
Constitution.
99
Under the interim Constitution, magistrates’ courts had a discretion either to postpone matters in which
constitutional issues beyond their jurisdiction were raised pending a decision on the constitutional issue by the
Supreme Court or to continue the proceedings on the assumption that the impugned law or conduct was valid
(s 103(2) and (3) of the interim Constitution). There is no longer any provision for the first possibility.
112
the amended section allows evidence relating to the invalidity of the law or Presidential
conduct to be heard by the magistrates’ courts.
The effect of the amended s 110 was also to deprive magistrates’ courts of any
power to pronounce on the validity of legislation and conduct of the President on
administrative law grounds. However, s 110 must now be read with the Promotion of
Administrative Justice Act 3 of 2000 (PAJA) which grants jurisdiction to
magistrates’ courts to adjudicate judicial review proceedings brought in terms of
s 6(1) of the Act, provided that they have been designated by the Minister in
accordance with the procedure described in para (b)(ii) of the definition of ‘court’ in
s 1:
‘court’ means . . . a Magistrate’s Court, either generally or in respect of a specified class of
administrative actions, designated by the Minister by notice in the Gazette and presided over
by a magistrate or an additional magistrate designated in terms of section 9A, within whose
area of jurisdiction the administrative action occurred or the administrator has his or her or
its principal place of administration or the party whose rights have been affected is
domiciled or ordinarily resident or the adverse effect of the administrative action was, is or
will be experienced . . . 100.
These powers have to be exercised within the constitutional limits imposed by s 170 of
the Constitution. The review powers of courts in terms of the PAJA include the power to
rule on the validity of and set aside administrative action. Administrative action as
defined in s 1 arguably includes delegated legislation but does not include ‘conduct of
the President’ as understood by s 170.101 Can the PAJA confer this jurisdiction on
magistrates’ courts? The answer is yes. Magistrates’ courts are prohibited by the
Constitution from enquiring into or ruling on ‘the constitutionality’ of delegated
legislation. A challenge to the constitutionality of law or conduct involves an allegation
that it is in direct conflict with a provision of the Constitution. It is therefore open for an
Act of Parliament to confer jurisdiction on magistrates’ courts to test the validity of
legislation or Presidential conduct on statutory grounds, since the adjudication of these
grounds do not involve the direct application of the Constitution. The restrictions on the
direct constitutional jurisdiction of magistrates’ courts will therefore have little bearing
on the power of those courts when sitting as courts for the adjudication of PAJA matters.
In such matters, the constitutionality of legislation, whether original or subordinate, will
not be directly at issue. Nor will the direct constitutionality of any conduct of the
President be at issue. What is at issue is whether or not the provisions of the PAJA have
been complied with. The Act provides statutory jurisdiction and statutory remedies for
the enforcement of constitutional rights.
Magistrates’ courts may not enquire into or rule on the validity of any law. This
means that a magistrate may not directly apply the Bill of Rights to any law and
declare it invalid. However, as was explained in Chapter 3 above, the indirect
application of the Bill of Rights to law does not involve a pronouncement on the
validity of that law. Rather, it involves the interpretation of legislation and the
100
Section 9A of the Act sets out in detail the process of training and designation of magistrates’ courts and
presiding officers to perform judicial review of administrative action. At the time of writing, no courts had yet
been designated.
101
Paragraph (aa) of the definition of ‘administrative action’ in s 1 of the Administrative Justice Act excludes
‘the executive powers or functions of the National Executive’ from the ambit of ‘administrative action’ and
therefore from the Act. See, further, on ‘conduct of the President’, para 5.4(b)(iv) below.
113
development of the common law so that both are in accordance with the Bill of
Rights. There is nothing, therefore, to prevent a magistrate’s court from indirectly
applying the Bill of Rights to a matter before it.102 A magistrate’s court is however
constrained in its ability to apply the Bill of Rights indirectly to the interpretation of
legislation or the development of the common law by the doctrine of precedent. In
the face of an authoritative interpretation of legislation or the common law by a
superior court, the magistrate’s court will be bound to follow that interpretation,
notwithstanding that, in the view of the magistrate’s court, it conflicts with the
Constitution. This rule applies to all post-Constitutional precedents, whether they
deal with constitutional issues or not.103 Pre-1994 decisions of higher courts on the
common law are binding, except in cases of direct conflict with the Constitution or
in cases involving the development of open-ended standards such as the boni
mores.104
The restrictions on the constitutional jurisdiction of magistrates’ courts prevent
these courts from deciding on and granting relief in disputes about the constitutional
validity of law and conduct of the President. This does not of course mean that these
courts are not bound to uphold and give effect to constitutional rights. For example,
magistrates presiding over criminal trials must ensure that the proceedings are
conducted in conformity with the Constitution, particularly the fair-trial rights of the
accused.105
5.4 ACCESS TO THE CONSTITUTIONAL COURT
(a) Matters within exclusive jurisdiction

The extent of the Constitutional Court’s exclusive jurisdiction has been discussed above.
Rules 14, 15 and 17 of the court’s 2003 rules set out the procedures for bringing three of
the types of matter that are within exclusive jurisdiction directly to the court. Rule 14
deals with the referral of a Parliamentary or Provincial Bill as contemplated by
s 79(4)(b) or s 121(2)(b) of the Constitution. Rule 15 deals with applications for a
decision on the constitutionality of an Act of Parliament or a province brought by
members of a legislature as contemplated by s 80(1) and s 122(1) of the Constitution.
Rule 17 deals with an application for certification of a provincial Constitution.
There is no specific procedure for the other three types of matter within the court’s
exclusive jurisdiction. These are disputes between organs of state in the national and
provincial sphere (s 167(4)(a)), the constitutionality of constitutional amendments
(s 167(4)(d)) and decisions that Parliament or the President has failed to fulfil a
102
Indeed, s 39(2) requires all courts to indirectly apply the Bill of Rights: ‘When interpreting any legislation,
and when developing the common law or customary law, every court, tribunal or forum must promote the spirit,
purport and objects of the Bill of Rights.’ The instruction requires the High Courts, the Supreme Court of Appeal
and the Constitutional Court to consider (mero motu, if necessary) whether the common law conforms to the Bill
of Rights and, if not, to develop it: Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC) [39].
While the magistrates’ courts probably are under a similar (perhaps, slightly attenuated) duty in relation to the
common law, the Constitutional Court has so far deliberately avoided considering the position of these courts:
Carmichele [56].
103
S v Walters 2002 (4) SA 613 (CC) [61].
104
Afrox Healthcare Bpk v Strydom 2002 (6) SA 21 (SCA) [29].
105
See S Jagwanth ‘The Constitutional Roles and Responsibilities of Lower Courts’ (2002) 18 SAJHR 201.
114
constitutional obligation (s 167(4)(e)). Such matters will have to be brought to the

Constitutional Court using the procedure for applications in Rule 11.106
(b) Confirmation of orders of invalidity

(i) Scope and purpose of the confirmation power
The Constitutional Court must confirm any order of constitutional invalidity of
Parliamentary or provincial legislation or conduct of the President before the order has
any force. The purpose of this requirement is to ensure that the Constitutional Court, as
the highest court in constitutional matters, should control declarations of constitutional
invalidity made against the highest organs of state.107 Section 172(2)(c) provides that
‘national legislation must provide for the referral of an order of constitutional invalidity
to the Constitutional Court’. The Constitutional Court Complementary Act 13 of 1995
was amended in 1997 to deal with such referrals. Section 8 of the Act provides:
Referral of order of constitutional invalidity to Court

8. (1)(a) Whenever the Supreme Court of Appeal, a High Court or a
court of similar status declares an Act of Parliament, a provincial Act or
conduct of the President invalid as contemplated in section 172(2 )(a) of
the Constitution . . . that court shall, in accordance with the rules, refer
the order of constitutional invalidity to the Court for confirmation.
The section indicates that the confirmation procedure follows an obligatory referral of
an order of constitutional invalidity to the Constitutional Court by the court that made
the order.108 Though the Rules permit interested parties to apply to the court for
confirmation and though such applications are frequently brought, they are not
necessary. Rule 16(1) requires the Registrar of the court which has made an order of
invalidity to lodge a copy of that order with the Registrar of the Constitutional Court
within 15 days of the order. The Rule goes on to permit interested parties to appeal the
order of invalidity or to apply for confirmation of the order. If no notice of appeal or
application for confirmation has been received, the Constitutional Court can dispose of
the matter in accordance with directions made by the Chief Justice.109
An application for confirmation or a referral of an order of invalidity is not the
same as an appeal to or direct access to the court. There is therefore no need for the
106
Rule 11 deals with applications ‘in any matter in which an application is necessary for any purpose’ other
than matters for which rules have been specifically provided.
107
Pharmaceutical Manufacturers (note 15 above) [56]. At [14]–[57] the court further held that a High Court
decision that the President had acted ultra vires in prematurely proclaiming an Act to have commenced was ‘an
order concerning the constitutional validity of . . . conduct of the President’ for purposes of s 172(2)(a) and was
therefore subject to the confirmation requirement.
108
Compliance by courts with the obligatory referral procedures is obviously of great importance where
litigants are not represented: S v Manyonyo 1999 (12) BCLR 1438 (CC) [8].
109
The Constitutional Court’s practice is to issue directions in every case submitted to it in the form of a letter
sent to all parties. The directions letter will indicate whether the matter has been set down on the court’s roll (in
the case of a confirmation) or whether an application for leave to appeal or for direct access argument has been
granted or declined or whether further argument is required on the issue of admission. Depending on the
circumstances, a directions letter will also set out dates for submission of written argument, the issues to be
canvassed in argument and a date for hearing of oral submissions.
115
applicant or respondent to present any further argument or evidence to the

Constitutional Court to enable it to decide to confirm or vary the order of
invalidity.110 The Constitutional Court has however indicated that a High Court or
the SCA hearing a matter in which the constitutionality of legislation is raised must
give the Minister responsible for the legislation an opportunity to intervene in the
proceedings.111 Evidence or argument relating to validity must therefore be heard by
the court a quo and not by the Constitutional Court. The Constitutional Court will
decide to confirm or vary the order on the basis of the record of the proceedings in
the court a quo. Section 8(2) of the Constitutional Court Complementary Act does
however envisage that where the Constitutional Court wishes to hear argument on a
particular issue in confirmation proceedings it may order the Minister responsible for
the legislation to brief counsel to appear before the court and to argue for and
against the particular point.112
It must be noted that although confirmation proceedings are more in the nature of
a review than an appeal, this does not mean that confirmation of an order of
invalidity is a foregone conclusion. The Constitutional Court sees it as obligatory for
it to conduct ‘a thorough investigation of the constitutional status of a legislative
provision’, irrespective of whether the parties support or oppose confirmation and
even if there is an outright concession by the respondent that the legislation is
invalid.113 The court has the power to vary an order of invalidity or to refuse
confirmation, and has done so frequently.114 The court can even, on broad grounds of
110
See for example, Moise v Greater Germiston Transitional Local Council 2001 (4) SA 491 (CC) [4]
(applicant and respondent reached a settlement of their dispute and took no part in confirmation proceedings).
111
Parbhoo v Getz NO 1997 (4) SA 1095 (CC) [5].
112
Examples of cases in which this power was used are Chief Lesapo v North West Agricultural Bank 2000 (1)
SA 409 (CC) [2], DVB Behuising (Pty) Ltd v North West Provincial Government, In re: Western Cape Provincial
Government 2001 (1) SA 500 (CC) [6], Minister of Welfare and Population Development v Fitzpatrick 2000 (3)
SA 422 (CC) [5], Moise v Greater Germiston Transitional Local Council 2001 (4) SA 491 (CC) [4]. In
confirmation cases where the interests of children are implicated the court will appoint a curator ad litem. The
power to do so comes directly from s 28(1)(h) of the Constitution: the right of a child to have a legal practitioner
appointed at state expense in civil proceedings affecting the child, if substantial injustice would otherwise result:
Du Toit v Minister of Welfare and Population Development 2003 (2) SA 198 (CC) [3].
113
Phillips v Director of Public Prosecutions (Witwatersrand Local Division) 2003 (3) SA 345 (CC) [9]. The
court indicated further that if the government department responsible for particular legislation decided it could
not implement the legislation because there was no valid defence to the constitutional challenge, it should inform
the court of its reasons for that decision. It was insufficient to merely indicate to the court that it would not be
opposing confirmation (ibid [11]). In Lawyers for Human Rights v Minister of Home Affairs 2004 (4) SA 125
(CC) the court considered a challenge to the standing of the applicant in confirmation proceedings. The challenge
was dismissed on the basis of an interpretation of s 38, but the court went on to remark that in confirmation
proceedings, even in the absence of an applicant with standing, there may be a duty on the court to consider the
substance of the constitutional challenge in order to remedy the uncertainty created by a High Court or SCA
decision declaring legislation invalid ([24]).
114
See, for example, South African National Defence Force Union v Minister of Defence 1999 (4) SA 469
(CC) (varying), S v Dlamini 1999 (4) SA 623 (CC) (not confirming), National Coalition for Gay and Lesbian
Equality v Minister of Justice 1999 (1) SA 6 (CC) (varying), S v Van Nell 1998 (8) BCLR 943 (CC) (confirming),
De Lange v Smuts NO 1998 (3) SA 785 (CC) (varying), Jooste v Score Supermarket Trading (Pty) Ltd 1999 (2)
SA 1 (CC) (not confirming), Pharmaceutical Manufacturers (note 15 above) (confirming for different reasons),
Dawood v Minister of Home Affairs 2000 (3) SA 936 (CC) (varying), S v Manamela 2000 (3) SA 1 (CC)
(varying), First National Bank of South Africa Ltd v Land and Agricultural Bank of South Africa 2000 (3) SA 626
(CC) (confirming in part and varying in part), Minister for Welfare and Population Development v Fitzpatrick
2000 (3) SA 422 (CC) (confirming in part and varying in part), Investigating Directorate: Serious Economic
Offences v Hyundai Motor Distributors (Pty) Ltd 2001 (1) SA 545 (CC) (not confirming), S v Dzukuda 2000 (4)
SA 1078 (CC) (not confirming).
116
justiciability, decline to hear the application for confirmation.115
(ii) Orders of invalidity of delegated legislation do not require confirmation

Orders of invalidity of provisions of Acts of Parliament and provincial Acts require
confirmation. Orders of invalidity of delegated legislation made in terms of an Act by a
Minister or MEC do not. This is so despite the standard legislative formula found in
definition sections to the effect that ‘this Act’ includes any regulations issued in terms of
powers granted by it.116 Such legislation is usually called ‘regulations’, but the
terminology used to describe it is not material; in principle, the confirmation jurisdiction
does not apply to any rules of made by virtue of delegated authority rather than original
constitutional legislative authority.
(iii) Status of pre-1994 provincial legislation

The Union Constitution created four provincial legislatures (‘provincial councils’) for
South Africa with limited, original legislative authority. They used this authority to
issue legislation termed ‘provincial ordinances’. The councils were retained by the 1961
and Tricameral Constitutions but were abolished by the Provincial Government Act 69
of 1986 and their legislative powers were transferred to provincial administrators, ie,
members of the executive.117 The 1986 Act had the effect of downgrading the status of
provincial ordinances from original to delegated legislation; ordinances could be
repealed, amended or replaced by proclamation by provincial administrators.118 Most of
the legislation of the councils has been repealed since 1994 but some remains in force. Is
such an ordinance a ‘provincial Act’ for purposes of the confirmation power in s 167(5)
and s 172(2)(a)?119
In Weare, the Constitutional Court declined to answer the general question posed
above, holding only that the particular ordinance that it was considering (the
Kwazulu-Natal Regulation of Racing and Betting Ordinance 28 of 1957) qualified as a
provincial Act for confirmation purposes. The analysis was based on the purpose of the
confirmation power, the preservation of ‘the comity between the judicial branch of
115
It has done so where the provision that was declared invalid by the High Court has subsequently been
repealed and where, as a result, the confirmation would not have any practical effect for the parties or others:
President, Ordinary Court Martial v Freedom of Expression Institute 1999 (4) SA 682 (CC) [16]. These
considerations also applied in Uthukela District Municipality v President of the Republic of South Africa 2003 (1)
SA 678 (CC), with an additional consideration being that the parties (organs of state) had not complied with their
obligation, stemming from the principle of co-operative government, to attempt to settle the dispute by
non-litigious means. On the relationship of these obligations and the ‘interests of justice’ requirement in
applications for leave to appeal, see para 5.4(c)(ii)(bb) below.
In accordance with the doctrine of objective constitutional invalidity (see Chapter 4 above) a challenge to the
constitutionality of legislation is determined in abstraction from the impact of the legislation on the particular
applicant who happens to have brought the case. It follows that an offer to settle a dispute by ameliorating the
position of the applicants will have no bearing on the question of the objective validity of the legislation. See
Khosa v Minister of Social Development 2004 (6) SA 505 (CC): ‘An offer to settle the dispute made by one
litigant to the other, even if accepted, cannot cure the ensuing legal uncertainty or dispose of the confirmation
proceedings. . . . An important purpose of confirmation proceedings is to ensure legal certainty. If parties were
permitted to reach agreements that would remove this Court’s power to hear confirmation proceedings in relation
to an order of invalidity, that purpose would be defeated’ ([35], footnote omitted).
116
Minister of Home Affairs v Liebenberg 2002 (1) SA 33 (CC) [9]; Dawood (note 114 above) [11]; Booysen v
Minister of Home Affairs 2001 (4) SA 485 (CC) [1].
117
Weare v Ndebele NO 2009 (1) SA 600 (CC) [26].
118
Ibid [27].
119
The issue was raised in Zondi v MEC for Traditional & Local Government Affairs 2005 (3) SA 589 (CC)
but not decided (see [29]–[30]).
117
government on the one hand and the legislative and executive branches of government
on the other, by ensuring that only the highest court in constitutional matters intrudes
into the domains of the principal legislative and executive organs of State’.120 Did the
Racing Ordinance have sufficient ‘status’ to merit a measure of comity in its treatment
by the courts?121 It did, because of its treatment by the KwaZulu-Natal provincial
legislature after 1994: the Ordinance was incorporated by reference into the
KwaZulu-Natal Gambling Act 10 of 1996 and was twice amended by the legislature in
1994 and once in 1998. Amendment and incorporation of the Ordinance by the
post-1994 legislature indicated that ‘the Ordinance as a whole should be seen as an
expression of the legislative will of a provincial legislature and treated accordingly’,
with the effect that invalidation of any of its provisions required confirmation by the
Constitutional Court.122
So, this approach turns on legislative history, on whether a post-1994 provincial
legislature has considered a pre-1994 ordinance and decided to retain it, in whole or in
part, thereby conferring on it sufficient democratic respectability for it to be subject to
the confirmation power. It does not reveal whether ordinances that have not had any
post-1994 consideration by a legislature require confirmation. On these (described as
‘ordinances in respect of which the legislature has not acted’), the court declined to
express an opinion.123
Applying the court’s ‘comity’ analysis to old-order ordinances that have been
untouched by the post-1994 provincial legislatures indicates that they probably will not
be subject to the confirmation power. This is because they lack democratic legitimacy
(given their provenance in a racially-exclusive legislature) and, as a result of the 1986
amendments, do not even have the status of being original legislation.
Old-order legislation of the former TBVC states is not delegated but original
legislation and is treated as an ‘Act of Parliament’ for the purposes of the confirmation
power.124
(iv) Conduct of the President

What is ‘conduct of the President’? There is no definitive jurisprudence on this point,
but the Constitutional Court has indicated what the phrase does not cover. In Von Abo,
the court held that the confirmation power did not encompass conduct amounting to a
failure to comply with a constitutional obligation, since that is a matter of exclusive
jurisdiction.125 Nor did it cover those executive matters where the President has merely
‘residual’ authority as head of the national executive. The conduct in question there is
that of the member of the executive with the primary responsibility for the conduct.126 If
this were not so, the court pointed out, ‘it would mean that in theory every order against
the government or a member of the Cabinet must be confirmed before it has any force or
effect. . . that would defeat the scheme of Chapter 5 of the Constitution; it would blur the
careful jurisdictional lines between this Court and other superior courts drawn by
120
Weare (note 117 above) [22] and [36], citing SARFU (note 56 above) [29].
121
Weare (note 117 above) [32].
122
Ibid [36].
123
Ibid [37].
124
S v Thunzi 2010 (10) BCLR 983 (CC).
125
Von Abo v President of the Republic of South Africa 2009 (5) SA 345 (CC) [35].
126
Ibid [45].
118
Chapter 8 of the Constitution; and would lead to an unwarranted increase of

confirmation proceedings in this Court’.127
The phrase encompasses only conduct of an executive character by the President and
not administrative action. This is because invalidity of the latter is, in terms of the
Promotion of Administrative Justice Act, a matter governed by legislation and not an
‘order of constitutional invalidity’ envisaged by s 172(2)(a).128 In addition, ‘conduct of
the President’ is probably not the product of delegated law-making by the President (ie,
a Proclamation) since in such a case it is law and not conduct that is subject to challenge.
It is also not clear whether ‘President’ includes conduct by pre-1994 heads of state—
the apartheid-era State President or, prior to that, the Governor-General. In Moseneke v
The Master this question was raised but not answered.129
(c) Appeals
The Constitution envisages the Constitutional Court functioning primarily as an
appellate court, hearing appeals raising constitutional issues from the High Court or
Supreme Court of Appeal. Appeals can be divided into two categories: appeals against
orders of invalidity made in terms of s 172(2)(a) of the Constitution and other appeals.
Because it is the court of final instance in constitutional matters, the Constitutional
Court does not have to give reasons for turning down applications for leave to appeal
and often does so summarily.130
(i) Appeals against orders of invalidity of Parliamentary or provincial

legislation or conduct of the President
A High Court and the Supreme Court of Appeal have jurisdiction to declare any law or
conduct invalid, other than the law and conduct referred in s 167(4) of the Constitution
and reserved for the exclusive jurisdiction of the Constitutional Court. However, in the
case of Parliamentary or provincial legislation or conduct of the President, an order of
invalidity has no effect until confirmed by the Constitutional Court.
Section 172(2)(d) provides that ‘Any person or organ of state with sufficient interest
may appeal, or apply, directly to the Constitutional Court to confirm or vary an order of
constitutional invalidity by a court in terms of this subsection’. This means that where an
order of constitutional invalidity of national or provincial legislation or conduct of the
President that has been made by a High Court is the subject of an appeal, the appeal
must proceed directly from the High Court to the Constitutional Court without involving
the Supreme Court of Appeal and without the need to obtain leave to appeal. Similarly,
there is an appeal as of right against an order of invalidity of the three forms of law and
conduct made by the Supreme Court of Appeal. Note however that the subsection refers
only to an appeal in relation to an order of invalidity. The subsection does not deal with
direct appeals to the Constitutional Court where the appeal is against a decision of a
127
Ibid [41].
128
A good example of executive action is the decision in question in the Pharmaceutical Manufacturers case
(note 15 above) ([79]). See also Kruger v President of the Republic of South Africa 2009 (1) SA 417 (CC). On the
distinction between administrative action and executive action, see further Chapter 29 below.
129
Moseneke v The Master 2001 (2) SA 18 (CC) [8]. Avoiding this issue required some agility. It was
ultimately made possible by converting the confirmation proceedings into a direct appeal [13]. The avoidance is
perhaps justified by the rarity of the issue.
130
The practice is provided for in Rule 19(6)(b) and justified in Beyers v Elf Regters van die Grondwetlike Hof
2002 (6) SA 630 (CC).
119
High Court that legislation or government conduct is constitutionally valid. In such

cases, appeal will either be to the Supreme Court of Appeal or full bench,131 or directly
to the Constitutional Court where the interests of justice require and where leave has
been granted.
Rule 16(2), (3) and (4) deals with direct appeals governed by s 172(2)(d). The
procedure involves lodging a notice of appeal with the Registrar of the Constitutional
Court and a copy of the notice with the Registrar of the High Court which gave the order
that is the subject of the appeal. The notice must set out the grounds of appeal and the
order that the appellant contends ought to have been made.
(ii) Other appeals

(aa) The appeals procedure
Section 167(6)(b) of the Constitution provides:
National legislation or the rules of the Constitutional Court must allow a

person, when it is in the interests of justice and with leave of the Consti-
tutional Court—
...
(b) to appeal directly to the Constitutional Court from any other court.
The Constitutional Court’s 2003 rules provide a single procedure for appeals from any
court, including the Supreme Court of Appeal.132 The procedure, set out in Rule 19,
entails the lodging of an application for leave to appeal within 15 days of the order
against which the appeal is sought.133 The respondents in an application for leave to
appeal may then indicate in writing whether they consent to or oppose the granting of
leave to appeal. The application and any response to it and any application for leave to
cross-appeal is then considered by the Constitutional Court.134
It is permissible to apply for leave to appeal to the Constitutional Court and, at
the same time, apply for leave to appeal to another appellate court. For example, a
131
On the principles governing whether appeals are to the full bench or the SCA, see MTN Service Provider
(Pty) Ltd v Afro Call (Pty) Ltd 2007 (6) SA 620 (SCA).
132
There is no prerequisite that a litigant must have a legislative right to appeal to another court: Director of
Public Prosecutions, Cape of Good Hope v Robinson (note 23 above) [25].
133
On the Constitutional Court’s powers to condone non-compliance with the time limits for appeals see
Brummer v Gorfil Brothers Investments (Pty) Ltd 2000 (2) SA 837 (CC) [3] (application for condonation will be
granted if it is in the interests of justice, to be determined by reference to all relevant factors, including the
prospects of success, the nature of the relief sought, the extent and cause of the delay, the nature and cause of any
other defect in respect of which condonation is sought, the effect on the administration of justice, prejudice and
the reasonableness of the applicant’s explanation for the delay or defect); S v Mercer 2004 (2) SA 598 (CC) [4]
(an additional factor is whether there is a public interest that the matter be heard and determined); Head of
Department, Department of Education, Limpopo Province v Settlers Agricultural High School 2003 (11) BCLR
1212 (CC) [13] (condonation unlikely when ‘much water has flowed under the bridge’ and the reasonable
expectation of parties is that the matter has been finalised). An applicant for condonation must give a full
explanation for the delay, this explanation must cover the entire period of delay and the explanation given must
be reasonable: Van Wyk v Unitas Hospital 2008 (2) SA 472 (CC) [22].
134
In S v Pennington (note 74 above) the court described its practice in considering applications for leave to
appeal: ‘it is the practice of this Court to consider applications for leave to appeal at conferences at which at least
eight justices are present, and not to refuse the application unless a majority of those justices take the view that
there are no reasonable prospects of success. In urgent matters the Chief Justice or a justice designated by him or
her in terms of rule 1(2) may grant leave to appeal. In that event, however, the appeal follows and is heard in open
court. The grant of leave is purely procedural and does not lead to the determination of the matter’ ([51]).
120
litigant aggrieved by a High Court decision could simultaneously apply for leave to
appeal to the Constitutional Court and to the Supreme Court of Appeal or to a full
bench of the High Court. If the Constitutional Court refuses leave to appeal, the
appeal may then proceed to either the Supreme Court of Appeal or the full bench.135
On the other hand, if the High Court or SCA considers that leave to appeal should
be granted it may then grant leave subject to the condition that leave is granted only
if the Constitutional Court refuses the application to appeal to it. If the High Court
refuses leave to appeal, a litigant may petition the Supreme Court of Appeal for
leave to appeal, before a decision is given by the Constitutional Court on the
application for leave to appeal directly to it. If the Constitutional Court refuses leave
to appeal directly, this does not prevent the litigant from approaching the
Constitutional Court again for leave to appeal after the Supreme Court of Appeal has
disposed of the matter either by way of a judgment, or by refusing the petition for
leave to appeal. Should that happen, the Constitutional Court will consider the
application on its merits in the light of the decision of the Supreme Court of
Appeal.136 Rule 19(3)(d) requires applicants to the Constitutional Court to indicate
whether they have applied or intend applying to any other court and, if so, whether
such an application is conditional on the application to the Constitutional Court
being refused.
Rule 19(6) requires ‘the Court’ to decide whether or not to grant leave to appeal.
In S v Pennington,137 the Constitutional Court indicated that, under the interim
Constitution and the court’s 1995 Rules,138 its practice was to consider applications
for leave to appeal at conferences at which at least eight justices are present, and not
to refuse the application unless a majority of those justices took the view that there
were no reasonable prospects of success.139 This practice continued under the 1996
Constitution and the 1998 Rules, with the difference that the principal consideration
of the court is whether the interests of justice favour granting leave to appeal.140 The
grant of leave to appeal is purely procedural and does not lead to the determination
of the matter. Once leave has been granted the appeal is set down for hearing in
open court.141 Though applications for leave to appeal are usually dealt with on the
papers, occasionally the court sets down the application for leave to appeal for oral
hearing.142 In such cases the court can direct that the parties’ written and oral
argument addresses both the application for leave to appeal directly and the merits of
the appeal.143
135
Mistry v Interim National Medical and Dental Council of South Africa 1998 (4) SA 1127 (CC) [18].
136
Mkangeli v Joubert 2001 (2) SA 1191 (CC) [6]–[7].
137
Ibid [51].
138
GN R5 of 6 January 1995.
139
See the discussion of the quorum requirements for decisions of the Constitutional Court above. The 1998
rules permitted applications for leave to appeal in matters of urgency and brought when the court is out of term to
be granted by the Chief Justice alone, who could not refuse leave to appeal in such cases: rule 18(10)(a). This
provision has been omitted from the 2003 rules.
140
MEC for Development Planning and Local Government, Gauteng v Democratic Party 1998 (4) SA 1157
(CC) [15].
141
National Police Service Union v Minister of Safety and Security 2000 (4) SA 1110 (CC) [4]–[5]
(postponement of a matter set down for hearing by the court on a particular date only granted in the interests of
justice).
142
Ibid [23].
143
Rule 19(6)(c). This was the procedure followed in New National Party v Government of the Republic of
South Africa 1999 (3) SA 191 (CC).
121
Who may appeal? Rule 19(2) entitles ‘[a] litigant who is aggrieved by the
decision of a court and who wishes to appeal against it’ to approach the
Constitutional Court for leave to appeal. In Director of Public Prosecutions, Cape of
Good Hope v Robinson an application for leave to appeal was brought by the
Director against a High Court decision. The High Court had overturned on appeal
the decision of a magistrate that found the respondent liable to be extradited. Was
the DPP a ‘litigant’ in extradition proceedings and could it be said to be ‘aggrieved
by the decision’? According to the Constitutional Court, the rule had to be
interpreted in conformity with s 167(6) of the Constitution, which granted ‘a person’
a right to approach the Constitutional Court directly. The word ‘person’ did not
restrict access to the court to appeals by natural or juristic persons only, and organs
of state were equally entitled to approach the court for leave to appeal.144 As for the
meaning of ‘litigant’ in rule 19, the court held that although the DPP does not play
the same role in extradition proceedings that it does in criminal proceedings does not
mean that the state is not a party to extradition proceedings at all.145 There is a
litigated issue between the state (represented by the DPP) and the extraditee who
opposed extradition, making the DPP a litigant in such proceedings.146 ‘Aggrieved’,
according to the court, requires a litigant to have a direct and substantial interest in
the adjudication of the issue.147 The DPP had such an interest in that it wished to
extradite the respondent and had been barred from doing so by the High Court
decision, making it more than merely ‘disappointed with the outcome of the
proceedings’ as the respondent would have it.148
(bb) Common criteria for the assessment of applications for leave to appeal
The principal criterion by which applications for leave to appeal to the Constitutional
Court from any other court are evaluated is set out in s 167(6) of the Constitution: the
interests of justice.
(1) An important but not necessarily decisive consideration in determining whether the
interests of justice favour hearing an appeal is the appeal’s prospects of success.149
This means that an appeal that does have reasonable prospects of success may
nevertheless be turned down on the basis of other considerations of the interests of
justice.150 On the other hand, it is clear that will not be in the interests of justice to
grant leave to appeal where there are no reasonable prospects of success.151
144
Director of Public Prosecutions, Cape of Good Hope v Robinson 2005 (4) SA 1 (CC) [27]–[31].
145
Ibid [33].
146
Ibid [39].
147
Ibid [40].
148
Ibid.
149
Governing Body of the Juma Musjid Primary School v Essay NO 2011 (8) BCLR 761 (CC) [30]; Albutt v
Centre for the Study of Violence and Reconciliation 2010 (3) SA 293 (CC) [29].
150
De Reuck v Director of Public Prosecutions (Witwatersrand Local Division) 2004 (1) SA 406 (CC) [3].
151
S v Pennington (note 74 above) [26]: ‘ “Leave to appeal” is also a requirement needed to “protect” the
process of this Court against abuse by appeals which have no merit, and it is in the “interests of justice” that this
requirement be imposed. . .’. Obviously, an appeal that does not have a constitutional basis has no prospect of
success in the Constitutional Court: Mistry (note 135 above) [10]. ‘Success’ includes the prospect that the
Constitutional Court will overturn the result of the case in the court a quo rather than merely find for the applicant
on a particular point of law: S v Bierman 2002 (5) SA 243 (CC) [9]. It sometimes happens that the state does not
contest the appellant’s allegation that a law is unconstitutional. If so, this will obviously have an impact on the
appellant’s prospects of success: Islamic Unity Convention v Independent Broadcasting Authority 2002 (4) SA
294 (CC) [15]–[19].
122
‘Success’ means a reasonable prospect that the Constitutional Court will overturn
the result in the court a quo and, in a criminal case, it means that a favourable
decision on the constitutional point of law must be likely to result in the conviction
being set aside.152 Evaluation of the prospects of success does not entail a
pre-judgment of the outcome of the case: ‘The Court does not anticipate a decision
as to the success of the intended appeal, but considers only the viability of the
appeal’.153
(2) Another relevant consideration is the nature of the issue that is the subject of the
appeal.154 In all cases, appeals can only be made to the Constitutional Court on
constitutional matters or issues connected with decisions on constitutional
matters.155 The issue that is brought on appeal must be a constitutional issue of
public importance, on which it is desirable to have a decision by the Constitutional
Court.156 The novelty of the issue raised is also a relevant factor.157
There is no rule against the hearing of an appeal against an interim order that
does not have final effect.158 In each case, what best serves the interests of justice
dictates whether the court will hear an appeal against an interim order.159 A
relevant factor in assessing the interests of justice are whether the interim
restraining order has an immediate and substantial effect, including whether the
harm that flows from it is ‘serious, immediate, ongoing and irreparable’.160
(3) Because of its reluctance to act as a court of first instance, the Constitutional
Court is unlikely to grant leave to appeal on constitutional grounds that could
have been raised as issues in the High Court or SCA but that were not.161 In
Lane and Fey NNO v Dabelstein162 the applicants sought special leave to appeal
to the Constitutional Court on grounds that had not been raised as issues in either
the High Court or the SCA. The Constitutional Court declined to grant leave to
appeal on the basis, inter alia, that the constitutional issues (which involved the
development of the common law) should have been raised in the courts a quo
where they could have been canvassed by those courts. In addition, when
constitutional issues had weighty legal import and wide-ranging
152
S v Bierman 2002 (5) SA 243 (CC) [9] (‘even if the . . . [particular evidence challenged] were to be held
constitutionally inadmissible, there is no reasonable prospect that this would lead to the conviction being set
aside’.)
153
Beyers (note 130 above) [11].
154
De Freitas v Society of Advocates of Natal 1998 (11) BCLR 1345 (CC) [21].
155
S v Boesak (note 17 above) [11]. See the discussion in para 5.3(a)(i) and (ii) above.
156
Fraser v Absa Bank Ltd 2007 (3) SA 484 (CC) [49]; Islamic Unity Convention v Independent Broadcasting
Authority (note 15 above) [15]–[16], De Reuck (note 150 above) [3].
157
Mazibuko v City of Johannesburg 2010 (4) SA 1 (CC) [38] (first time that the interpretation of s 27(1)(b)
was considered by the Constitutional Court).
158
International Trade Administration Commission v SCAW South Africa (Pty) Ltd 2012 (4) SA 618 (CC)
[53]–[55]. If the interim order, despite its form, is final in effect it will generally be appealable, subject to the
other considerations of the interests of justice [53]. See also Metlika Trading Ltd v Commissioner, South African
Revenue Service 2005 (3) SA 1 (SCA) [24].
159
National Treasury v Opposition to Urban Tolling Alliance 2012 (6) SA 223 (CC) [24], [27] (interim
interdict had wide-ranging consequences for the national finance and management of the country’s sovereign
debt and entailed reallocation of budgeted funds).
160
Ibid [25].
161
Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd 2012 (1) SA 256 (CC) [27]–[30].
162
Lane and Fey NNO v Dabelstein 2001 (2) SA 1187 (CC).
123
commercial implications, they ought not ordinarily to be considered by the

Constitutional Court unless and until they had been thoroughly canvassed in the
courts that are more directly concerned with such matters.163 The Constitutional
Court’s disinclination to consider new grounds of appeal is even stronger where
the grounds involve disputed factual issues.164
(4) An applicant must comply with the notice and joinder requirements of the
Constitutional Court rules.165 The Constitutional Court is unlikely to grant leave
to appeal in a matter where the Minister or other official or organ of state
responsible for legislation has not been given an opportunity to defend the
legislation and adduce evidence in support of that defence in the court a quo.166
(5) The general prohibition on hearing hypothetical cases167 applies also to the
consideration of the interests of justice in granting leave to appeal. The
Constitutional Court will be disinclined to hear an appeal on an issue in a
dispute that is no longer live between the parties.168
(6) There is an additional element to the interests of justice requirement in litigation
between organs of state.169 This is the principle of co-operative government and,
more particularly, the obligations of the national, provincial and local spheres of
government and of organs of state within each sphere to avoid legal proceedings
against one another170 and to make ‘every reasonable effort to settle the dispute’
and to exhaust all other remedies before approaching a court.171 Because of the
importance of the constitutional obligation to settle disputes, the court will
rarely grant a direct appeal to organs of state if it is not satisfied that the
obligation has been met.172
(7) In a matter in which a majority of the members of the court would have been
required to recuse themselves, leaving the court without a quorum that could
163
Ibid [4]–[5]. See also S v Bierman (note 152 above) [7]–[8].
164
Van der Spuy v General Council of the Bar of South Africa 2002 (5) SA 392 (CC) [19]. Similar
considerations apply to the consideration of constitutional issues by the Supreme Court of Appeal. See Singh v
Commissioner, South African Revenue Service 2003 (4) SA 520 (SCA) [24] (proper basis for a challenge to the
constitutionality of legislation must be laid in the papers or pleadings in an appeal and not only in heads of
argument).
165
See para 5.5(a) below for a discussion of these rules.
166
Beinash v Ernst & Young 1999 (2) SA 91 (CC) [27]–[28]. These considerations also require accuracy in the
identification of the statutory provisions that are the subject of an attack. See Shaik v Minister of Justice and
Constitutional Development 2004 (3) SA 599 (CC) [25]. In Shaik an application for leave to appeal was declined
on the basis, inter alia, that the applicant had targeted the incorrect provision of a statute in his application for
leave to appeal. Requiring the correct provision to be identified, Ackermann J held, was not ‘mere pedantry’ since
the state (and any other interested parties) needed accurate particulars to prepare their case ([22]).
167
On the elaboration of this principle in the doctrines of ripeness and mootness see Chapter 4 above.
168
But even if an issue is moot between the particular parties it may be in the interests of justice to hear the
appeal if others in the same position would benefit from a decision on the issue. Wiese v Government Employees’
Pension Fund 2012 (6) BCLR 599 (CC) [25].
169
National Gambling Board (note 51 above).
170
Section 41(1)(h)(vi) of the Constitution. In Independent Electoral Commission v Langeberg Municipality
2001 (3) SA 925 (CC) [17]–[31] it was held that these obligations do not apply to the IEC as it is not an organ of
state within the national, provincial or local spheres of government.
171
172
MEC for Health, KwaZulu-Natal v Premier, Kwa Zulu-Natal 2002 (5) SA 717 (CC). The same
considerations apply to applications for direct access (see para 5.4(d) further below) and even to confirmation
proceedings. In Uthukela District Municipality v President of the Republic of South Africa 2003 (1) SA 678 (CC)
the court declined to make a confirmation order, inter alia, on the grounds that the organs of state involved had
not shown a willingness to resolve their dispute at a political level before approaching the High Court for a
declaration of invalidity of legislation.
124
hear the appeal, an application for leave to appeal was refused. A balance had
to be struck between the need for finality in the matter and the avoidance of
possible injustice to the appellant. Because the refusal of leave would entail the
continuance of a process against the appellant and would not result in an
immediate finding against him on the substance of the matter, the threat of
injustice was mitigated.173
(cc) Appeals to the Constitutional Court from a High Court

Under the Constitutional Court’s 1998 rules appeals from a High Court were known as
‘direct appeals’. The court developed a considerable body of jurisprudence dealing with
direct appeals, much of which remains relevant to the simplified appeal procedure under
its 2003 rules.
(1) In addition to the common criteria for the determination of all applications for
leave to appeal, additional considerations of the interests of justice in an appeal
from a High Court are the time that would be taken if an appeal had to be heard by
another court before being heard by the Constitutional Court, the costs of such a
prolonged procedure and the public importance of the matter.174
(2) When a constitutional matter is one which turns on the direct application of the
Constitution and which does not involve the development of the common
law,175 considerations of costs and time may make it desirable that the appeal is
brought directly to the Constitutional Court.176 But when the constitutional
matter involves the development of the common law, the position is different.
The Supreme Court of Appeal has jurisdiction to develop the common law in
all matters including constitutional matters. Because of the breadth of its
jurisdiction and its expertise in the common law, its views as to whether the
common law should or should not be developed in a ‘constitutional matter’ are
of particular importance. The Constitutional Court will not ordinarily exercise
its jurisdiction to develop the common law in constitutional matters without the
matter having first been dealt with by the Supreme Court of Appeal.177 The
same goes for matters involving indirect application of the Bill of Rights to the
interpretation and application of legislation.178
(3) A further consideration in determining the interests of justice is the principle
that, where possible, a court should decide a case without reaching a
constitutional issue.179 This means that in ‘mixed appeals’ (appeals raising both
constitutional and non-constitutional issues) the interests of justice would
173
Judge President Hlophe v Premier, Western Cape 2012 (6) SA 13 (CC) [45], [47]. The practical effect of the
refusal of the application was to uphold two decisions of the Supreme Court of Appeal setting aside disciplinary
proceedings of the Judicial Service Commission and ordering them to be commenced afresh.
174
MEC for Development Planning (note 140 above) [31]. See Minister of Public Works v Kyalami Ridge
Environmental Association 2001 (3) SA 1151 (CC) [17]–[28], where leave to appeal directly was granted to
resolve the issue of the legality of temporary accommodation provisions for flood victims as expeditiously as
possible, despite the appeal raising factual issues that had not been canvassed in the court a quo. See also MEC
for Local Government, Western Cape v Paarl Poultry Enterprises CC 2002 (3) SA 1 (CC) [7].
175
On the indirect application of the Bill of Rights to common law and legislation, see Chapter 3 above.
176
Islamic Unity Convention (note 151 above) [17], De Reuck (note 150 above) [4].
177
Amod v Multilateral Motor Vehicle Accidents Fund 1998 (4) SA 753 (CC) [33].
178
National Gambling Board (note 51 above) [38]; Wallach v High Court of South Africa (Witwatersrand
Local Division) 2003 (5) SA 273 (CC) [7].
179
S v Mhlungu 1995 (3) SA 867 (CC) [59].
125
ordinarily require the appeal to be heard by the Supreme Court of Appeal or a

full bench rather than directly by the Constitutional Court.180 The Constitutional
Court has solely constitutional jurisdiction and is therefore unable to decide an
appeal on anything other than constitutional grounds. By contrast, the Supreme
Court of Appeal has both constitutional and non-constitutional jurisdiction and
can, where appropriate, dispose of an appeal on non-constitutional grounds
without reaching the constitutional issue. Should it be appropriate to decide the
appeal on the constitutional grounds, the Supreme Court of Appeal has the
jurisdiction to do so, and its decision on those grounds may be appealed to the
(4) An additional factor to be considered is whether as a matter of law there is a
possibility of an appeal to the Supreme Court of Appeal from a particular
decision of a High Court. There is, for example, no appeal from a decision of
the High Court to the Supreme Court of Appeal against a dismissal of an
exception which avers that a pleading does not disclose a cause of action or
defence.181 This is because the decision is not final in its effect and is therefore
not a ‘judgment or order’ for purposes of s 20(1) of the Supreme Court Act.
Such a decision, if made on constitutional grounds, can however be directly
appealed to the Constitutional Court. Leave to appeal directly is however
subject to the usual criterion—the interests of justice—and it will often not be
in the interests of justice for the court to entertain appeals against interlocutory
rulings which have no final effect on the dispute between the parties.182 The
Constitutional Court will consider the nature of the exception and, in particular,
the effect that upholding the exception may have upon the trial proceedings in
the High Court; the stage of the proceedings in the High Court; the importance
of a determination of the constitutional issues raised by the exception; and the
applicants’ prospects of success upon appeal.183
The path of appeals from High Court decisions under the 1996 Constitution and the
Constitutional Court’s 2003 rule can be summarily described as follows:
(1) Appeals against decisions of a High Court that national or provincial legislation or
conduct of the President is constitutionally invalid—directly to the Constitutional
Court with no requirement of leave to appeal. (s 172(2)(d) and Rule 16)
(2) Appeals against decisions of a High Court that national or provincial legislation
or conduct of the President is constitutionally valid or High Court decisions in
relation to any other constitutional issue not involving the development of the
common law (for example an order declaring local government legislation
constitutionally valid or invalid)—directly to the Constitutional Court subject to
the requirement that the Constitutional Court’s leave to appeal (in addition to a
Rule 18 certificate from the court a quo). (s 167(6)(b) and Rule 19)
(3) Appeals against High Court decisions in non-constitutional matters—to the
Supreme Court of Appeal or to a full bench.
180
MEC for Development Planning (note 140 above) [32]: ‘Where there are both constitutional issues and
other issues in the appeal, it will seldom be in the interests of justice that the appeal be brought directly to this
Court’.
181
Minister of Safety and Security v Hamilton 2001 (3) SA 50 (SCA) 52B–53E.
182
Khumalo v Holomisa 2002 (5) SA 401 (CC) [8].
183
Ibid [10].
126
(4) Appeals in matters involving indirect application of the Bill of Rights to the
common law or legislation—to the Supreme Court of Appeal or to a full bench.
(5) Appeals raising both constitutional and non-constitutional issues—to the
Supreme Court of Appeal or to a full bench.
(dd) Appeals to the Constitutional Court from the Supreme Court of Appeal
Appeals to the Constitutional Court from decisions on constitutional matters by the
Supreme Court of Appeal are governed by Rule 19 of the Court’s 2003 rules. Under the
1998 rules, ‘decisions’ did not include refusals by the SCA of petitions for leave to
appeal to that court.184 The 2003 rules now make it clear that applications for leave can
be made in terms of Rule 19 ‘irrespective of whether the President [of the SCA] has
refused leave or special leave to appeal’. A decision of the SCA not to consider an
appeal on its merits can also be appealed using the Rule 19 procedure.185
As with all other appeals, the criterion applied by the Constitutional Court when
considering whether to grant leave to appeal from a decision of the SCA is ‘the interests
of justice’. The principal consideration applicable to appeals from the Supreme Court of
Appeal, just as it is for appeals from other courts, is whether the appeal has reasonable
prospects of success.186 It will not be in the interests of justice to grant leave to appeal
where there are no reasonable prospects of success.187 But the prospects of success are
not the only factor to be considered. In an application for leave to appeal that related to
an adoption order given by a Children’s Court, the Constitutional Court held that,
because the matter concerned the status and well-being of a young adopted child, the
interests of the child were paramount. Even if the application for leave to appeal were to
be granted, and the applicant were ultimately to succeed in his application to have the
adoption order set aside, it would not be the end of the matter. The adoption proceedings
would have to be re-opened and the dispute could again drag itself out through the
courts. Continued uncertainty as to the status and placing of the child were not in the
interests of the child.188
(d) Direct access

Direct access means that a matter is heard by the Constitutional Court at first instance.
Though ordinarily an appellate court and not a court of first instance, the Constitution
does provide for direct access to the Constitutional Court in certain circumstances.
Section 167(6)(a) provides:
National legislation or the rules of the Constitutional Court must allow a person, when it is
in the interest of justice and with leave of the Constitutional Court—
(a) to bring a matter directly to the Constitutional Court;
184
Swartbooi v Brink (1) 2003 (5) BCLR 497 (CC) [4]: ‘When the SCA refuses to grant leave to appeal in a
case, the appeal to . . . [the Constitutional Court] is not an appeal against the SCA’s refusal of leave to appeal to
it but an appeal against the High Court decision itself’.
185
S v Western Areas Ltd 2004 (8) BCLR 819 (CC). On the SCA’s power to refuse to consider appeals on their
merits, see S v Basson 2004 (1) SA 246 (SCA).
186
Fraser v Naude 1999 (1) SA 1 (CC) [7]; S v Boesak (note 17 above) [12].
187
In S v Price 2001 (11) BCLR 1193 (CC) special leave to appeal a criminal conviction was refused on the
grounds that the evidence of the appellant’s guilt was so compelling that there was no prospect that the
applicant’s convictions would be set aside on appeal. In the circumstances, no purpose would be served by
considering the validity of the constitutional issue that was said to arise ([2]).
188
Fraser v Naude (note 186 above) [9].
127
The Rules provide for direct access to the Constitutional Court in matters over which
concurrent jurisdiction is exercised, where the matter is of sufficient public importance
or urgency that direct access will be in the interests of justice. Direct access is an
extraordinary procedure that has been granted by the Constitutional Court in only a
handful of cases. The expansion of the constitutional jurisdiction of the High Courts
under the 1996 Constitution makes direct access in matters of concurrent jurisdiction
largely unnecessary from the point of view of Bill of Rights practitioners.
Under the interim Constitution and the court’s 1995 rules, direct access in matters
of concurrent jurisdiction was possible in exceptional circumstances only. Such
circumstances ordinarily existed only where the matter was of such urgency, or
otherwise of such public importance that the delay necessitated by the use of
ordinary procedures would prejudice the public interest or would prejudice the ends
of justice and good government.189 The Constitutional Court repeatedly emphasised
that direct access was an extraordinary procedure and that it should be granted only
in exceptional circumstances.190
In Bruce v Fleecytex, the court held that the criteria laid down for the grant of
direct access in the 1995 rules and the interpretation of those rules by the court were
consistent with the interests of justice requirement of s 167(6) of the 1996
Constitution.191 Whilst the prospects of success are clearly relevant to applications
for direct access to the court, there are other considerations of equal importance. The
Constitutional Court is the highest court on all constitutional matters. If constitutional
matters could be brought directly to it as a matter of course, the Constitutional Court
could be called upon to deal with disputed facts on which evidence might be
necessary, to decide constitutional issues which are not decisive of the litigation and
which might prove to be of purely academic interest, and to hear cases without the
benefit of the views of other courts having constitutional jurisdiction. Moreover,
according to the Constitutional Court, it is not ordinarily in the interests of justice for
a court to sit as a court of first and last instance, in which matters are decided
without there being any possibility of appealing against the decision given.192
In terms of rule 18, an application for direct access must set out the grounds on
which it is contended that it is in the interests of justice that direct access should be
granted. The application must also set out the nature of the relief sought and the
189
See, for example, the reasons for the grant of direct access in Executive Council of the Western Cape
Legislature v President of the Republic of South Africa 1995 (4) SA 877 (CC) [15]: ‘We were told that local
government elections in the Cape Town metropolitan area and in the whole of the Province would be put in
jeopardy if the issues were not urgently resolved. It was impressed upon us that the Third Applicant could not act
without the concurrence of the Committee and that, until the dispute regarding the composition of the Committee
has been resolved, arrangements for local government elections in the Western Cape Province would be at a
standstill. . . . The Respondents agreed that the matter was of such import and urgency as to justify direct access
being afforded to this Court.’
190
See, for example, Betlane v Shelley Court CC 2011 (1) SA 388 (CC) [22]; AParty v Minister of Home
Affairs 2009 (3) SA 649 (CC).
191
Bruce v Fleecytex Johannesburg CC 1998 (2) SA 1143 (CC) [4].
192
Ibid [5]–[8]. In Dormehl v Minister of Justice 2000 (2) SA 825 (CC) the court added that a further reason
for the restriction of direct access is that it is not generally in the interests of justice for eleven judges to hear
matters at first instance which can conveniently be dealt with by a single judge of a high court ([5]). Obviously,
it is far more difficult for a multi-member court to resolve factual disputes and make credibility findings than a
single-member court.
128
grounds on which such relief is sought.193 The Constitutional Court has indicated
that the mere fact that the validity of an Act of Parliament is in issue is not enough
to justify the granting of direct access. Proof of impending prejudice to the public
interest is required.194 The court has also indicated that the mere fact that a case
involves the possibility of continued damage to the environment would not bring the
matter within the purview of Rule 18.195
The Constitutional Court takes two principal factors into account when deciding
applications for direct access. The first is, obviously, the prospects of success on the
substantive aspects of the matter.196 The court will not be inclined to grant direct
access to an applicant who is unlikely to be successful on the substantive issues
raised.197 This indicates that, in addition to proving that the issue is one of urgency
and public interest, an applicant for direct access must make out at least a prima
facie case on the merits of the matter198 and should clearly set out the relief
sought.199 As with applications for direct appeals, it is necessary to comply with the
rules relating to notice and joinder.200
The second factor is whether an applicant can show that he or she has exhausted
all other remedies or procedures that may have been available.201 This is for obvious
reasons. If another remedy or procedure is available, it cannot be said that urgency
or the interests of justice necessitate circumventing the ordinary procedures and
requiring the Constitutional Court to adjudicate the matter at first instance. Under the
1996 Constitution, High Courts and the Supreme Court of Appeal have constitutional
jurisdiction including the jurisdiction to make orders concerning the validity of the
provisions of an Act of Parliament. In the case of an order of invalidity requiring
confirmation by the Constitutional Court, the court making the order may grant a
temporary interdict or other temporary relief pending the decision of the
Constitutional Court. This means that compelling reasons will be required to justify a
different procedure and to persuade the Constitutional Court that it should exercise
its discretion to grant direct access and sit as a court of first instance.202
193
In National Gambling Board (note 51 above) [46] the court remarked that the fact that certainty on a
particular legal question is desirable does not make the decision of that question a matter of urgency.
194
Transvaal Agricultural Union v Minister of Land Affairs 1997 (2) SA 621 (CC). According to the court, all
legislation is in the public interest and an attack on the constitutionality of legislation therefore necessarily
involves the public interest. But granting direct access in every case where legislation is challenged would
circumvent the purpose of direct access which is to ensure that only the most urgent cases reach the court ([21]).
195
Hekpoort Environmental Preservation Society v Minister of Land Affairs 1998 (1) SA 349 (CC).
196
Dormehl (note 192 above) [5].
197
This is nicely illustrated by Minister of Defence v Potsane; Legal Soldier (Pty) Ltd v Minister of Defence
2002 (1) SA 1 (CC) [7] and [45]. Two cases presented the same issue for decision by different procedural routes.
Potsane was an application for direct leave to appeal, while Legal Soldier was an application for direct access.
The Constitutional Court granted leave to appeal in Potsane and upheld the Minister’s appeal, holding the law in
question to be valid. Because the applicants in Legal Soldier were challenging the validity of the same law, the
application for direct access was dismissed because of a clear lack of any prospects of success.
198
Transvaal Agricultural Union (note 194 above) [46].
199
See Veerasamy v Engen Refinery 2000 (3) SA 337 (CC) (direct access refused where the relief sought by an
applicant was not within the powers of the court).
200
See Ex parte Omar 2003 (10) BCLR 1087 (CC) [4] (direct access will not be granted to consider a
challenge to the constitutionality of legislation where the Minister responsible for the legislation is not cited in
the application).
201
Besserglik v Minister of Trade, Industry and Tourism 1996 (4) SA 331 (CC).
202
Bruce (note 191 above) [9], Dormehl (note 192 above) [5]. The first case in which the Constitutional Court
granted direct access under the 1996 Constitution was S v Dlamini (note 114 above). The application related to
the validity of the bail provisions in the Criminal Procedure Act 55 of 1977. The court was prepared to condone
129
The constitutional principle of co-operative government requires organs of state to

make every effort to settle disputes and to avoid litigation with each other. This
means that the Constitutional Court is unlikely to grant direct access in litigation
between organs of state that have not complied with these requirements.203
Because it does not ordinarily function as a court of first instance, the
Constitutional Court is disinclined to hear oral evidence for the purpose of resolving
disputes of fact. In the context of applications for direct access the court has
indicated that it would ordinarily be inappropriate for the court to resolve disputed
issues of fact by the hearing of oral evidence in order to determine whether it should
grant direct access or the relief sought by means of direct access.204
Direct access is appropriate for applications for the variation of an order of the
5.5 SPECIAL PROCEDURES IN CONSTITUTIONAL COURT LITIGATION
(a) Joinder
The Constitutional Court rules require an applicant to provide notice of disputes over the
constitutionality of any executive act or conduct and inquiries into the constitutionality
of to the responsible executive authority, if that authority is not a party to the case.206 It
is important that the Minister or MEC responsible for the administration of that
legislation be given a fair opportunity to respond to the challenge. This flows not only
non-compliance with the rules and grant direct access on the grounds that the case crisply raised constitutional
issues involving the fundamental rights of many thousands of arrested persons and having an important bearing
on the day-to-day administration of the criminal justice system. It was therefore ‘manifestly in the interests of
justice that widespread uncertainty about the constitutional validity of important elements of an institution as
important and ubiquitous as bail be laid to rest’ ([35]). The court also appeared to place some weight on the fact
that the respondent did not oppose condonation or the application for direct access. Similar factors were taken
into consideration in granting an application for direct access in Moseneke v The Master (note 129 above) [19]
(urgent need to resolve administrative impasse caused by continued existence of self-evidently unconstitutional
apartheid legislation; direct access supported by all parties). In Minister of Home Affairs v National Institute for
Crime Prevention and the Re-integration of Offenders (NICRO) 2005 (3) SA 280 (CC) the court initially refused
an application for direct access to allow a High Court application on the issue of the disenfranchisement of
prisoners to take place. However, due to the urgency of the case (brought just three months before the 2004
elections) and the inability of the High Court in the circumstances to resolve the matter speedily enough, the
Constitutional Court was obliged to recall its earlier refusal and grant direct access. In Mkontwana v Nelson
Mandela Metropolitan Municipality 2005 (1) SA 530 (CC) direct access was granted on an issue that was already
before the court in a direct appeal.
203
National Gambling Board (note 51 above). Similar considerations apply to applications for leave to appeal
from courts other than the Supreme Court of Appeal—see text to note 178 above.
204
Hekpoort Environmental Preservation Society (note 195 above). According to the court, there may
however be cases where the circumstances are so exceptional and the public interest, or the ends of justice or
good government, are of such overriding importance, that direct access may be granted, notwithstanding material
disputes of fact which cannot be resolved without hearing oral evidence.
205
African National Congress v United Democratic Movement 2003 (1) SA 533 (CC) [13]. The court put
weight on the fact that the issue concerned was within its exclusive jurisdiction (an amendment to the
Constitution). It is difficult to see why this makes a difference. The Constitutional Court is the only court with
jurisdiction to vary its own orders and direct access is appropriate for that reason alone. The similar application
for variation of an order in Ex parte Women’s Legal Centre: In re Moise v Greater Germiston Transitional Local
Council 2001 (4) SA 1288 (CC) appears to have been made under Rule 10.
206
Rule 5(1). Rule 5(2) provides that no order of invalidity may be made by the Constitutional Court unless
the provisions of sub-rule (1) have been complied with. See Beinash v Ernst & Young [27] (relevant organ of state
is best positioned to provide the necessary arguments of justification for a limitation of rights, and is often the
only party that can provide the court with evidence it needs to tailor the retrospective effect of its order).
130
from the principle of fairness that should apply in all civil litigation and the useful
information that may be so tendered, but also from the respect that courts owe to the
other branches of government.207
Where failure to join or give notice to the appropriate authority results in prejudice to
the state, the Constitutional Court may decline to hear the case. In Beinash, an
application for leave to appeal directly, the court treated the failure of the applicant to
join or give notice to the Minister of Justice as one of a number of factors fatal to the
application. Similarly, in Jooste v Score Supermarket Trading (Pty) Ltd,208 the Minister
of Labour had not been given notice or joined as a party to High Court proceedings
challenging the validity of provisions in the Compensation for Occupational Injuries and
Diseases Act 130 of 1993. The Constitutional Court noted that the failure to give notice
may have provided a reason to decline to confirm the High Court’s order of invalidity. In
the event, it was unnecessary for the court to consider this course of action because
confirmation could be refused on substantive grounds and the lack of notice would not
result in any prejudice to the state.
(b) Admission of amici curiae

The Constitutional Court rules permit a person with an interest in a matter before the
court and who is not a party in the matter to be admitted as an amicus curiae. In
Hoffmann v South African Airways, the court gave the following description of an
amicus curiae in constitutional litigation:
An amicus curiae assists the court by furnishing information or argument regarding
questions of law or fact. An amicus is not a party to litigation, but believes that the court’s
decision may affect its interest. The amicus differs from an intervening party, who has a
direct interest in the outcome of the litigation and is therefore permitted to participate as a
party to the matter. An amicus joins proceedings, as its name suggests, as a friend of the
court. It is unlike a party to litigation who is forced into the litigation and thus compelled to
incur costs. It joins in the proceedings to assist the court because of its expertise on or
interest in the matter before the court. It chooses the side it wishes to join, unless requested
by the court to urge a particular position.209
An amicus is confined to making written submissions.210 These submissions must be limited
to the record on appeal or referral, and may only refer to facts proved in other proceedings or
to the type of official, technical, scientific or statistical facts referred in Rule 31.
There are two procedures for admission. The first entails the prospective amicus
seeking written permission from all the parties in the matter and on terms and
conditions agreed by all parties. Once permission has been obtained the prospective
amicus will be admitted by the Constitutional Court, subject to any specific
207
Richter v Minister of Home Affairs 2009 (3) SA 615 (CC) [39].
208
Jooste (note 114 above).
209
Hoffmann v South African Airways 2001 (1) SA 1 (CC) [63]. An amicus in constitutional litigation is
therefore a non-party who voluntarily joins proceedings to press a particular position. The term is also used more
generally to describe a legal practitioner who appears at the request of the court to represent an unrepresented
party or interest. See G Budlender ‘Amicus Curiae’ in Woolman, Bishop & Brickhill (eds) Constitutional Law of
South Africa 8–1. The rules described here govern the first sense of the term.
210
Rule 10(8).
131
directions made by the Chief Justice.211 The second procedure is available where
permission has not been sought or has not been obtained from the other parties. In
such cases, a prospective amicus can apply directly to the Chief Justice for
admission at the discretion of the court.212
The principles underlying the admission of an amicus curiae are that, in addition
to having an interest in the proceedings before the court, the submissions that the
amicus intends to make must be relevant to the proceedings and must raise new
contentions which may be useful to the court.213 An amicus may urge the court to
reach a particular outcome but only if it does so in the course of assisting the court
to arrive at a just outcome and not to serve or bolster a sectarian or partisan interest
any of the parties in litigation. Such a partisan interest is better served by joining the
case as a litigant or intervening party rather than as an amicus.214
The court will always assess the proposed contribution of the amicus against these
principles and retains a discretion whether to admit the amicus and on what terms even
where the prospective amicus has obtained permission from the parties. In Fose, the
Human Rights Commission had not obtained consent from the other parties in
accordance with the rules and applied to the President for admission. The application was
denied on the grounds that the Commission had nothing new to add.215
An amicus is not entitled to raise a new cause of action. If an amicus wishes to
raise a new cause of action in an appeal, it must seek permission to do so in its
application. The Chief Justice can then decide whether or not it would be appropriate
to permit such an issue to be raised in the appeal. Such permission is unlikely to be
given if it would involve the joining of additional parties to the litigation, or if there
is a likelihood that one or more of the parties would be prejudiced.216
211
Rule 10(1)–(3). The court may refuse to admit an amicus who has the consent of the parties on the basis
that the principles underlying admission of an amicus are not satisfied. Brümmer v Minister for Social
Development 2009 (6) SA 323 (CC) [22].
212
Rule 10(4).
213
Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) [9]. See also, In re Certain Amicus Curiae
Applications: Minister of Health v Treatment Action Campaign 2002 (5) SA 713 (CC) [3]: ‘the Court will
consider whether the submissions sought to be advanced by the amicus will give the Court assistance it would not
otherwise enjoy’.
214
National Treasury v Opposition to Urban Tolling Alliance 2012 (6) SA 223 (CC) [13], [14] (avowedly
political partisan stance adopted by Democratic Alliance in matter more suited to intervening party than amicus).
215
Ibid [16] (no ‘fresh insight’ found in proposed submissions, only an echo of the position of the respondents
with slight variation).
216
De Beer NO v North-Central Local Council and South-Central Local Council 2002 (1) SA 429 (CC) [31].
See also In re Certain Amicus Curiae Applications (note 213 above) [6]–[7].
132
Chapter Six
Interpretation of the Bill of Rights

6.1 The stages of interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133
6.2 Interpretation of the Bill of Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134
6.3 The point of interpretation: a generous, purposive and contextual
interpretation that gives expression to the underlying values of the
Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135
(a) The role of the text . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135
(b) Purposive interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
(c) Generous interpretation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138
(d) Context . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
(i) Historical context . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
(aa) Political history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
(bb) Drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
(ii) Textual context. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
6.4 The interpretation clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
(a) Section 39(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
(b) Section 39(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148
(c) Section 39(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148
6.5 Other provisions of the Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
6.1 THE STAGES OF INTERPRETATION

Constitutional interpretation is the process of determining the meaning of a
constitutional provision. More narrowly, for purposes of Bill of Rights cases, the aim of
interpretation is to ascertain the meaning of a provision in the Bill of Rights in order to
establish whether law or conduct is inconsistent with that provision. Interpretation
therefore involves two enquiries: first the meaning or scope of a right must be
determined, then it must be determined whether the challenged law or conduct conflicts
with the right.
This chapter is principally concerned with the first of these enquiries—determining
the meaning of the rights in the Bill of Rights.1 The provisions of the Bill of Rights
sometimes protect certain kinds of activities or they demand the fulfilment of certain
objectives. Sometimes they do both. The first type of provision places a negative or
defensive obligation on the actors that it binds while the second type places positive
obligations on those it binds. A right may therefore be infringed by limiting protected
1
The interpretation of legislation to give effect to the Constitution and the Bill of Rights is considered in para
3.4(b) in Chapter 3 above.
133
activities or by failing to fulfil a positive obligation.2 For example, if pornography is a

form of expression that is protected by the right to freedom of expression in s 16, a law
that prohibits violent or child pornography is an infringement of this right.3 If the right
to vote in s 19 requires arrangements to be made to allow prisoners who cannot attend a
polling station to exercise their right to vote, a failure to make such arrangements will be
a violation of the right.4 In the first example, interpretation involves determining what it
is that the right protects (is pornography ‘expression’?). In the second example,
interpretation involves determining what it is that the right requires someone (in this
case, the state) to do.
The second enquiry—whether law or conduct is in conflict with a right—involves the
interpretation of the challenged law or a determination of what the challenged conduct
amounts to or what its effects are. Thereafter, one must determine whether there is
conflict between the law or conduct and the Bill of Rights.
6.2 INTERPRETATION OF THE BILL OF RIGHTS

As with ordinary language, the meaning of a constitutional provision depends on the
way it has been used.5 Much of constitutional interpretation is therefore about
establishing the context within which a particular constitutional provision must be given
meaning. Sometimes the context is obvious (or at least uncontroversial) and the meaning
of the provision is unlikely to give rise to a dispute. Other provisions are however quite
likely to be the subject of argument about their proper meaning. This is because, in some
cases, provisions are the result of political compromises made during the drafting
process, and were therefore left deliberately vague or open-ended. Other provisions,
notably the rights in the Bill of Rights, are formulated in general and abstract terms.
Their application to particular situations and particular circumstances will necessarily be
a matter for argument and controversy.6
What then are the rules, principles and methods that apply to the interpretation of the
Constitution? The Constitution itself does not prescribe how it should be interpreted.
Section 39 contains an interpretation clause which pertains to the Bill of Rights and
s 239 contains certain definitions which apply to the interpretation of the Constitution as
a whole. However, the instructions contained in s 39, important as they may be, are
2
In respect of positive obligations, s 7(2) provides that ‘the State must respect, protect, promote and fulfil the
rights in the Bill of Rights’ and s 237 provides that ‘all constitutional obligations must be performed diligently
and without delay’.
3
De Reuck v Director of Public Prosecutions (Witwatersrand Local Division) 2004 (1) SA 406 (CC)
[47]–[48].
4
August v Electoral Commission 1999 (3) SA 1 (CC) [16] (‘the right to vote by its very nature imposes
positive obligations upon the legislature and the executive’).
5
L Wittgenstein Philosophical Investigations (1953) GEM Anscombe (trans) 43: ‘the meaning of a word is its
use in the language’.
6
‘Necessarily’ means that controversy and the need to argue about and eventually come to a decision about the
proper interpretation of the provisions of the Bill of Rights is unavoidable. The rights are not formulated as
detailed sets of rules designed to deal with specific, envisaged situations. Rather, the Bill of Rights lays down, as
Ronald Dworkin puts it, ‘general, comprehensive moral standards that government must respect but . . . leaves it
to statesmen and judges to decide what these standards mean in concrete circumstances’. Life’s Dominion (1993)
119.
134
Interpretation of the Bill of Rights 6.2–6.3
themselves sufficiently abstract as to require a great deal of interpretation.7 As for s 239,

it defines only three terms: ‘national legislation’, ‘organ of state’ and ‘provincial
legislation’. Because the interpretation, application and limitation of fundamental rights
is not (indeed, cannot be) regulated completely by the text of the Constitution, the
Constitutional Court has laid down guidelines as to how the Constitution in general and
the Bill of Rights in particular should be interpreted. These guidelines are discussed
immediately below. Section 39 is discussed in para 6.4 below.
6.3 THE POINT OF INTERPRETATION: A GENEROUS, PURPOSIVE AND CONTEXTUAL

INTERPRETATION THAT GIVES EXPRESSION TO THE UNDERLYING VALUES OF
THE CONSTITUTION
The method of interpreting the Constitution and the Bill of Rights has been established
in several judgments of the Constitutional Court and the Supreme Court of Appeal. In
summary, these judgments hold that the language of the constitutional text must be
interpreted generously, purposively and in context.8 We elaborate on this summary
below.
(a) The role of the text

The obvious starting point for determining the meaning of a provision of the Bill of
Rights is the text itself. In the very first judgment of the Constitutional Court, S v Zuma,
Kentridge AJ warned against underestimating the importance of the text:
While we must always be conscious of the values underlying the Constitution, it is
nonetheless our task to interpret a written instrument. I am well aware of the fallacy of
supposing that general language must have a single ‘objective meaning’. Nor is it easy to
avoid the influence of one’s personal intellectual and moral preconceptions. But it cannot be
too strongly stressed that the Constitution does not mean whatever we might wish it to mean.
We must heed Lord Wilberforce’s reminder that even a constitution is a legal instrument, the
language of which must be respected. If the language used by the lawgiver is ignored in
favour of a general resort to ‘values’ the result is not interpretation but divination. . . . I
would say that a constitution ‘embodying fundamental principles should as far as its
language permits be given a broad construction.9
Moreover, individual textual provisions of the Constitution may not be considered and
construed in isolation. They must be interpreted contextually in the light of the
Constitution as a whole.10
However, constitutional disputes can seldom be resolved with reference to the
literal meaning (sometimes called the ‘ordinary’ or ‘dictionary’ meaning) of the
Constitution’s provisions alone. The Constitution provides a complex framework for
the exercise of state power, a framework with both procedural and substantive
7
For example, s 39(1) requires a court interpreting the Bill of Rights to ‘promote the values that underlie an
open and democratic society based on human dignity, equality and freedom’. There can be few instructions more
in need of interpretation than this.
8
Viking Pony Africa Pumps (Pty) Ltd t/a Tricom Africa v Hidro-Tech Systems (Pty) Ltd 2011 (1) SA 327 (CC)
[32].
9
S v Zuma 1995 (2) SA 642 (CC) [17] (emphasis original).
10
Matatiele Municipality v President of the Republic of South Africa 2007 (6) SA 477 (CC) [36]. See also
Johannesburg Municipality v Gauteng Development Tribunal 2010 (2) SA 554 (SCA) [39], quoting Jaga v
Dönges NO 1950 (4) SA 653 (A), 664H (interpretation must avoid ‘excessive peering at the language to be
interpreted without sufficient attention to the contextual scene’).
135
elements. Particularly when it comes to substantive prescriptions such as the rights in

the Bill of Rights, the Constitution is abstract and open-ended in much of its
formulation. This means that constitutional interpretation unavoidably involves more
than the determination of the literal meaning of particular provisions. In fact, even
when there is an apparently self-evident literal meaning that can be given to a
constitutional provision, the proper interpretation of the provision may entail looking
beyond that meaning.
In S v Makwanyane, the Constitutional Court (quoting Kentridge AJ in Zuma)
adopted the following approach to the interpretation of the Bill of Rights:
whilst paying due regard to the language that has been used, [an interpretation of the Bill of
Rights should be] ‘generous’ and ‘purposive’ and ‘give . . . expression to the underlying
values of the Constitution.’11
What Kentridge AJ had stressed in Zuma is that interpretation of the Constitution must
be grounded in the text itself and that the text sets the limits of a feasible interpretation.12
If there is an evident and plain meaning of a provision it cannot be ignored in favour of
a ‘generous’ and ‘purposive’ account of the provision’s meaning. But, by contrast, the
dictum in Makwanyane emphasises that while the literal meaning must be taken into
account (given ‘due regard’) it is not necessarily conclusive. To put it another way, a
literal meaning will be an acceptable interpretation of a provision only if it accords with
a ‘generous’ and ‘purposive’ interpretation that ‘gives expression to the underlying
values of the Constitution’. It is clear that the Makwanyane passage better describes the
Constitutional Court’s interpretative practice. On a number of occasions the court has
preferred ‘generous’ and ‘purposive’ interpretations to contrary interpretations based on
the literal meaning of a provision.13
There is however a limit to what can be made of the text. Though the court must
seek to give effect to the object or purpose of a provision it may not impose a
meaning on the text that it is not reasonably capable of bearing;14 the interpretation
may not be ‘unduly strained’.15
(b) Purposive interpretation

Purposive interpretation is aimed at teasing out the core values that underpin the listed
fundamental rights in an open and democratic society based on human dignity, equality
and freedom and then to prefer the interpretation of a provision that best supports and
protects those values. In this regard the Constitutional Court has approved the following
statement by the Canadian Supreme Court in R v Big M Drug Mart Ltd:
11
S v Makwanyane 1995 (3) SA 391 (CC) [9].
12
See Moseneke J in Daniels v Campbell NO 2004 (5) SA 331 (CC) [83] (language of the text not ‘infinitely
malleable’).
13
For example, in Sanderson v Attorney-General, Eastern Cape 1998 (2) SA 38 (CC) [20]–[24], the court
came to the conclusion that, despite contrary indications in the text, the right to be tried within a reasonable time
protects both trial and non-trial related interests of the accused. Perhaps the most controversial example of the use
of ‘generous’ and ‘purposive’ interpretation to reach a conclusion at odds with the apparent literal meaning of the
text is S v Mhlungu 1995 (3) SA 391 (CC). The case is discussed in detail in para 6.3(c) below. See also S v Twala
2000 (1) SA 879 (CC) [17] (change in language of provision between interim and 1996 Constitution not
indicative of change in meaning if the language in its context does not require this).
14
South African Airways (Pty) Ltd v Aviation Union of South Africa 2011 (3) SA 148 (SCA) [29].
15
Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty) Ltd [24].
136
Interpretation of the Bill of Rights 6.3
The meaning of a right or freedom guaranteed by the Charter was to be ascertained by an

analysis of the purpose of such a guarantee; it was to be understood, in other words, in the
light of the interests it was meant to protect. In my view, this analysis is to be undertaken,
and the purpose of the right or freedom in question is to be sought, by reference to the
character and larger objects of the Charter [of Rights and Freedoms] itself, to the language
chosen to articulate the specific right or freedom, to the historical origins of the concepts
enshrined, and where applicable, to the meaning and purpose of the other specific rights and
freedoms with which it is associated within the text of the Charter. The interpretation should
be . . . a generous rather than a legalistic one, aimed at fulfilling the purpose of the guarantee
and securing for individuals the full benefit of the Charter’s protection.16
Purposive interpretation tells us that once we have identified the purpose of a right in the
Bill of Rights we will be able to determine the scope of the right. A right that has the
purpose of protecting value or interest X will not be infringed by a law that harms Y. But
the identification of the values or interests protected by the rights in the Bill of Rights is
a difficult task. Take, for example, the right to free expression in s 16. What value does
it protect, what is its purpose? It may be that the only value of free expression in a
society is that it encourages political debate. If that is so then little or no purpose would
be served by protecting pornography from censorship laws. If, however, the right to
freedom of expression is also underpinned by the values of personal self-fulfilment and
autonomy (the idea that being able to read and see and say what one pleases will
encourage individuals to exercise independent judgment on what is valuable to them),
then pornography may well fall within the scope of protection afforded by s 16.17
The purposive approach to interpretation therefore inevitably requires a value
judgment to be made about which purposes are important and protected by the
Constitution and which are not. The values referred to have to be objectively
determined by reference to the ‘norms, aspirations, expectations and sensitivities of
the . . . people’.18 They may not, however, be derived from or equated with public
opinion.19 In S v Makwanyane, the Constitutional Court held that, while public
opinion may be relevant, it is in itself no substitute for the duty vested in the court
to interpret the Constitution. This is so for two reasons. If public opinion were to be
decisive, the protection of rights may as well be left to Parliament, which after all
has a mandate and is answerable to the public. Also, the very reason for establishing
the new legal order, and for vesting the power of judicial review of all legislation in
the courts, was to protect the rights of minorities and others who cannot protect their
rights adequately through the democratic process.20 If the court was to attach too
much significance to public opinion, it would be unable to fulfil its function to
16
R v Big M Drug Mart Ltd 1985 18 DLR (4th) 321 395–396, cited in Zuma (note 9 above) [15]; Department
of Land Affairs v Goedgelegen Tropical Fruits (Pty) Ltd 2007 (6) SA 199 (CC) [51].
17
See, further, the discussion in para 16.1 and para 16.2 in Chapter 16 below.
18
Ex parte Attorney-General, Namibia: In re Corporal Punishment by Organs of State 1991 (3) SA 76
(NmSC), 91D–F (Mahomed CJ).
19
See S v Williams 1995 (3) SA 632 (CC) [36]–[37].
20
See Christian Education South Africa v Minister of Education 2000 (4) SA 757 (CC) [25]: ‘It might well be
that in the envisaged pluralistic society members of large groups can more easily rely on the legislative process
than can those belonging to smaller ones, so that the latter might be specially reliant on constitutional protection,
particularly if they express their beliefs in a way that the majority regard as unusual, bizarre or even threatening.’
137
protect the social outcasts and marginalised people of our society, the ‘worst and the
weakest among us’.21
Purposive interpretation recognises that the interpretation of the Bill of Rights
involves a value judgment. Ultimately, however, it does not prescribe how the value
judgment is to be made. The making of this judgment is central to the exercise of
interpreting the Bill of Rights. We now turn to the other principles and methods of
interpretation in search for an answer to this problem.22
(c) Generous interpretation

Generous interpretation is interpretation in favour of rights and against their restriction.
It entails drawing the boundaries of rights as widely as the language in which they have
been drafted and the context in which they are used makes possible.
In S v Zuma, the Constitutional Court approved of the following passage from a
judgment of Lord Wilberforce in Minister of Home Affairs (Bermuda) v Fisher:23
[A supreme constitution requires] a generous interpretation . . . suitable to give to
individuals the full measure of the fundamental rights and freedoms referred to . . . .24
Generous interpretation was put to decisive use in S v Mhlungu, where the court referred
again to the dictum of Lord Wilberforce and added:
A constitution is an organic instrument. Although it is enacted in the form of a statute it is sui
generis. It must broadly, liberally and purposively be interpreted so as to avoid [what Lord
Wilberforce called] ‘the austerity of tabulated legalism’ and so as to enable it to continue to
play a creative and dynamic role in the expression and the achievement of the ideals and
aspirations of the nation, in the articulation of the values bonding its people and in
disciplining its government.25
Generous interpretation was then used by the majority of the court in Mhlungu to
support an interpretation of s 241(8) of the interim Constitution that allowed persons
involved in cases pending at the commencement of the Constitution to rely on the rights
in the interim Bill of Rights. This was in spite of the apparently clear literal meaning of
the provision:
21
Makwanyane (note 11 above) [88]. A theory of interpretation known as ‘process theory’ (see for example the
exposition of J Ely Democracy and Distrust (1980)) sees a Constitutional Court not as counter-majoritarian, but
as supplementing the democratic process by, among other things, assisting marginalised groups to enforce their
rights. The Constitutional Court has, on several occasions (see also Williams (note 19 above) [48]) referred to its
special role in the protection of the ‘worst and the weakest amongst us’, recognising that it has a duty to assist
those who are unable to protect themselves through the democratic process.
22
These principles and methods should not be seen as choices from a menu of interpretative options but rather
as ‘competing poles in a field of forces’. Levack v Regional Magistrate, Wynberg 1999 (4) SA 747 (C) 751J,
citing F Michelman ‘A Constitutional Conversation with Professor Frank Michelman’ 1995 (11) SAJHR 477,
483.
23
Zuma (note 9 above) [14].
24
Minister of Home Affairs (Bermuda) v Fisher [1980] AC 319 (PC) 328–329.
25
Mhlungu (note 13 above) [8].
138
241.(8) All proceedings which immediately before the commencement

of this Constitution were pending before any court of law, including any
tribunal or reviewing authority established by or under law, exercising
jurisdiction in accordance with the law then in force, shall be dealt with
as if this Constitution had not been passed: Provided that if an appeal in
such proceedings is noted or review proceedings with regard thereto are
instituted after such commencement such proceedings shall be brought
before the court having jurisdiction under this Constitution.
According to a minority of the Constitutional Court, the ordinary meaning of the

language used in s 241(8) was to be preferred. According to Kentridge AJ, ‘There are
limits to the principle that a Constitution should be construed generously so as to allow
to all persons the full benefit of the rights conferred on them, and those limits are to be
found in the language of the Constitution itself . . . . Section 241(8) of the Constitution
provides expressly that pending cases shall be dealt with as if the Constitution had not
been passed. When the language is clear it must be given effect . . . . With all respect to
the judges who have taken a different view I find it difficult to see what meaning other
than that which I have suggested can reasonably be given to the language used.’26 The
majority of the court found this to be too narrow and legalistic an approach. According
to the majority:
An interpretation which withholds the rights guaranteed by Chapter 3 of the [interim]
Constitution from those involved in proceedings which fortuitously commenced before the
operation of the Constitution would not give to that chapter a construction which is ‘most
beneficial to the widest amplitude’ and should therefore be avoided if the language and
context of the relevant sections reasonably permits such a course.27
In effect, the majority of the court held that, where the text reasonably permits, a broad
interpretation should be preferred over a narrow interpretation, if the result of the latter
would be to deny persons the benefits of the Bill of Rights.
While it is all fair and well to ensure that individuals get the full benefit of the
Bill of Rights, the Mhlungu judgment does not explain why this requires a generous
interpretation of constitutional provisions. It becomes particularly problematic when
the other principles and rules of constitutional interpretation point to a different,
narrower, meaning of a provision. The use of generous interpretation in such cases
may lead to a strained interpretation of the text, despite the attempt of the majority
in Mhlungu to require generous interpretation to conform to the ‘language and
context of the relevant sections’. It may also run counter to the court’s commitment
to purposive interpretation. The purpose of a constitutional provision may indeed be
a narrow one, in which event a broad or generous interpretation would produce a
different outcome from a purposive interpretation. The Constitutional Court is aware
of this possibility,28 but has not indicated explicitly how it would resolve such a
26
Ibid [78] (per Kentridge AJ, Chaskalson P, Ackermann J and Didcott J concurring).
27
Ibid [9] (per Mahomed J, Langa J, Madala J, Mokgoro J and O’Regan J concurring).
28
Makwanyane (note 11 above) [9] note 8. See also Soobramoney v Minister of Health (KwaZulu-Natal) 1998
(1) SA 765 (CC) [17]: ‘The purposive approach will often be one which calls for a generous interpretation to be
given to a right to ensure that individuals secure the full protection of the Bill of Rights, but this is not always the
139
tension. The resolution of the conflict will depend on the rationale behind the court’s
commitment to generous interpretation.
It may be argued that generous interpretation simply recognises that a supreme
constitution cannot be interpreted in the narrow and legalistic way in which statutes
tend to be construed under a system of parliamentary supremacy. This possibility
may be discarded immediately. Generous interpretation does of course result in a
difference in approach between constitutional and statutory interpretation but this
does not explain why the generous approach is adopted in the first place. In any
event, the courts are well aware that the interpretation of a supreme law requires a
different approach to that adopted when interpreting ordinary legislation29 and it
would be fanciful to suggest that generous interpretation is merely a reminder of a
basic principle of constitutional theory.
A more plausible explanation is that the existence of a general limitation clause
(as is the case in the Canadian and South African Constitutions) permits a court to
adopt a broad construction of the right in the first (interpretative) stage of the
enquiry, then to require the state or the person relying on the validity of the
infringement to justify the infringement in the limitation stage of the litigation.
Viewed in this light, the generous approach dictates that, when confronted with
difficult value judgments about the scope of a right, the court should not expect the
applicant to persuade it that a right has been violated. Instead, it should be prepared
to assume that there has been a violation and call on the government to justify its
laws and actions.30 However, there are indications that the Constitutional Court is not
following this approach.31 The court has been unwilling to extend the protection
afforded by the rights to an indefinite and unforeseeable number of activities. It
seems as if the court will always choose to demarcate the right in terms of its
purpose when confronted with a conflict between generous and purposive
interpretation.32 If this is so, the notion of generous interpretation does not contribute
much to constitutional interpretation.
(d) Context
The meaning of words depends on the context in which they are used. The provisions of
the Constitution must therefore be read in context in order to ascertain their purpose.33
case, and the context may indicate that in order to give effect to the purpose of a particular provision ‘‘a narrower
or specific meaning’’ should be given to it.’ See further Dawood v Minister of Home Affairs 2000 (1) SA 997 (C),
1036–1037.
29
See Chaskalson P in Makwanyane (note 11 above) [15]. See also Mahomed AJ in S v Acheson 1991 (2) SA
805 (NmHC), 813B: ‘The Constitution of a nation is not simply a statute which mechanically defines the
structures of government and the relations between the government and the governed. It is a ‘‘mirror reflecting
the national soul’’, the identification of the ideals and aspirations of a nation; the articulation of the values
bonding its people and disciplining its government. The spirit and the tenor of the Constitution must therefore
preside and permeate the processes of judicial interpretation and judicial discretion.’
30
Support for this rationale may be found in Zuma (note 9 above) [21] and, more explicitly, the judgment of
Ackermann J in Ferreira v Levin NO 1996 (1) SA 984 (CC) [82].
31
The best proof of this is the debate on the meaning of the right to freedom between Ackermann J (a right not
to have obstacles to possible choices placed in your way) and the other members of the court (a right to physical
liberty) in Ferreira (ibid).
32
See, further, South African National Defence Force Union v Minister of Defence 1999 (4) SA 469 (CC) [28]
(court adopting a generous interpretation without much explanation or justification).
33
See, for example, Sanderson v Attorney-General, Eastern Cape (note 13 above) [19]: ‘it is not useful to
attempt a universally valid interpretation of a word so vague [‘charged’ in s 25(3)(a) of the interim Constitution]
140
‘Context’ here has a narrower and a wider signification. The wider sense of context is
the historical and political setting of the Constitution. The narrower sense is the context
provided by the constitutional text itself.
(i) Historical context

(aa) Political history
South Africa’s political history plays an important role in the interpretation of the
Constitution.34 The Constitution is a consequence of and a reaction to South Africa’s
history. One of the purposes of the Constitution is a desire that there should be, in the
words of Mahomed J, ‘a ringing and decisive break with the past’.35 A purposive
interpretation will therefore take this history and the desire not to repeat it into account
when determining the meaning of a constitutional provision:
[T]he Constitution is not simply some kind of statutory codification of an acceptable or
legitimate past. It retains from the past only what is defensible and represents a radical and
decisive break from that part of the past which is unacceptable. It constitutes a decisive
break from a culture of Apartheid and racism to a constitutionally protected culture of
openness and democracy and universal human rights for South Africans of all ages, classes
and colours. There is a stark and dramatic contrast between the past in which South Africans
were trapped and the future on which the Constitution is premised. The past was pervaded
by inequality, authoritarianism and repression. The aspiration of the future is based on what
is ‘justifiable in an open and democratic society based on freedom and equality’. It is
premised on a legal culture of accountability and transparency. The relevant provisions of
the Constitution must therefore be interpreted so as to give effect to the purposes sought to
be advanced by their enactment.36
The use of historical interpretation is well illustrated by the Constitutional Court’s
judgments dealing with the equality clause. In Brink v Kitshoff NO the Constitutional
Court held that:
As in other national constitutions, s 8 of the interim Consitution is the product of our own
particular history. Perhaps more than any of the other provisions in chapter 3, its interpretation
must be based on the specific language of s 8, as well as our own constitutional context. Our
history is of particular relevance to the concept of equality. The policy of apartheid, in law and in
fact, systematically discriminated against black people in all aspects of social life. Black people
were prevented from becoming owners of property or even residing in areas classified as ‘white’,
which constituted nearly ninety percent of the landmass of South Africa; senior jobs and access
to schools and universities were denied to them; civic amenities, including transport systems,
public parks, libraries and many shops were also closed to black people. Instead, separate and
and which therefore derives much of its content and meaning from the particular context in which it is used’.
Context features strongly throughout the judgment of Kriegler J. See also his judgment in Fedsure Life Assurance
Ltd v Greater Johannesburg Transitional Metropolitan Council 1999 (1) SA 374 (CC) [170] on the meaning of
the words ‘based on’: ‘In the case of such a protean phrase a resort to dictionary definitions is futile. Colourless
words must derive their meaning from their context’.
34
We focus here on interpretation of the Bill of Rights but political history tends to be even more important in
structure of government litigation, where it often provides direct and decisive guidance for the interpretation of
the Constitution. See for example Executive Council, Western Cape v Minister of Provincial Affairs 2000 (1) SA
661 (CC) [44].
35
Mhlungu (note 13 above) [8].
36
Shabalala v Attorney General of the Transvaal 1996 (1) SA 725 (CC) [26]. Compare however Mphahlele v
First National Bank of SA Ltd 1999 (2) SA 667 (CC) [11]: ‘simply because a practice was established during the
apartheid era does not, without more, render it bad or unconstitutional’.
141
inferior facilities were provided. The deep scars of this appalling programme are still visible in
our society. It is in the light of that history and the enduring legacy that it bequeathed that the
equality clause needs to be interpreted.37
(bb) Drafting history

Statements by politicians made during the negotiations and drafting process, sometimes
called the ‘ipse dixit’ of the political role players, are of little value in the interpretation
of the Constitution. In S v Makwanyane, the court quoted with approval the following
passage from a Canadian judgment:
[T]he Charter [of Rights and Freedoms] is not the product of a few individual public
servants, however distinguished, but of a multiplicity of individuals who played major roles
in the negotiating, drafting and adoption of the Charter. How can one say with any
confidence that within this enormous multiplicity of actors . . . the comments of a few
federal civil servants can in any way be determinative.38
The Constitutional Court then added that:
Our Constitution is also the product of a multiplicity of persons, some of whom took part in
the negotiations, and others who as members of Parliament enacted the draft. The same
caution is called for in respect of the comments of individual actors in the process, no matter
how prominent a role they might have played.39
The ipse dixit of the negotiators should be distinguished from background materials
compiled during the drafting process. In international law, similar material is referred to
as the ‘travaux preparatoires’ or ‘preparatory work’ of a treaty and can be taken into
account in the interpretation of the treaty.40 The Constitutional Court does attach some
significance to such documents when interpreting the Constitution. In S v Makwanyane,
the court stated that:
[o]ur Constitution was the product of negotiations conducted at the multi-party negotiating
process. The final draft adopted by the forum of the multi-party negotiating process was,
with few changes, adopted by Parliament. The multi-party negotiating process was advised
by technical committees, and the reports of these committees on the drafts are the equivalent
of the travaux preparatoires, relied upon by the international tribunals. Such background
material can provide a context for the interpretation of the Constitution and, where it serves
37
Brink v Kitshoff NO 1996 (4) SA 197 (CC) [40]. Section 9 prohibits ‘unfair discrimination’, requiring a court
to interpret what forms of law or conduct fall within the scope of the prohibition. One of the factors to be taken
into account in this interpretation is historical. In Harksen v Lane NO 1998 (1) SA 300 (CC) [52], the court held
that, when determining whether discrimination is unfair, one of the factors that must be taken into account is
whether the complainant suffered in the past from patterns of disadvantage. See also City Council of Pretoria
v Walker 1998 (2) SA 363 (CC) [45]–[48]. See, further, para 9.1(b) in Chapter 9 below. See also the historical
interpretation given to the phrase ‘detention without trial’ in s 12(1)(b) in De Lange v Smuts NO 1998 (3) SA 785
(CC), discussed in para 12.1(d) in Chapter 12 below. History does not only mean the grand narrative of apartheid
and its demise but also more matters engaged during the constitutional transition. See also Minister of Defence
v Potsane 2002 (1) SA 1 (CC) (the words ‘There is a single national prosecuting authority in the Republic’ in
s 179(1) when read in their historical context’ do not mean ‘exclusive’ or ‘only’ but denote the singular, ‘one’; the
phrase refers to the unification of existing public prosecution authorities under a single authority and does not
prohibit a separate system of military justice).
38
Makwanyane (note 11 above) [18], quoting Reference re section 94(2) of the Motor Vehicle Act (British
Columbia) (1986) 18 CRR 30 49.
39
Makwanyane (note 11 above) [18].
40
Article 32 of the Vienna Convention on the Law of Treaties (1969): ‘Recourse may be had to supplementary
means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion . . .’.
The ‘travaux preparatoires’ are the record of the drafting of a treaty.
142
that purpose, I can see no reason why such evidence should be excluded. The precise nature
of the evidence, and the purpose for which it may be tendered, will determine the weight to
be given to it.41
The court then added that the background materials, including the reports of the various
Technical Committees,42 provided that they are clear, not in dispute and relevant, may
be useful to show why particular provisions were or were not included in the
Constitution. In Makwanyane, these materials were used to show that, by deliberately
leaving the right to life unqualified, the framers intended to leave the question of the
constitutionality of the death penalty for the Constitutional Court to decide.43
The Makwanyane criteria are not a substantial barrier to the introduction of
background materials.44 As long as the document was officially recognised, as most
relevant and useful documents usually are, it is hard to imagine how its content can
be placed in dispute. As for the relevance of the materials, the inclusion of a
particular formulation of a constitutional provision means that a competing
formulation was left out (or perhaps that there was no other formulation). All
constitutional arguments are therefore attempts to explain why a particular provision
was or was not included in the Constitution, and background material that assists
such an attempt will always be relevant. However, while the historical angle will
always be worth exploring, the weight of background evidence will seldom be
decisive.45
(ii) Textual context

When it comes to the interpretation of particular provisions of the Bill of Rights, the
courts use the other provisions of the Constitution and the Bill of Rights to provide a
further context for the interpretation of individual provisions of the Bill of Rights.46 In
other words, rights must not only be understood in their social and historical context, but
also in their textual setting.47 Contextual interpretation in the latter sense is also called
‘systematic’ interpretation. Systematic interpretation recognises that the Constitution is
the document as a whole and that it should not be read as if it consisted of a series of
41
Makwanyane (note 11 above) [17]–[18].
42
Technical Committees were groups of advisors (predominantly lawyers) who advised the political
negotiators during the CODESA, MPNP and Constitutional Assembly proceedings. See, generally, H Ebrahim
The Soul of a Nation: Constitution-Making in South Africa (1998).
43
Makwanyane (note 11 above) fn 33.
44
As far as statutory interpretation is concerned, the common-law rule of excluding evidence of the
circumstances surrounding the adoption of a statute no longer applies, and the courts follow the approach to the
use of background material set out in Makwanyane. See Natal Joint Municipal Pension Fund v Endumeni
Municipality 2012 (4) SA 593 (SCA) [18]: ‘The ‘‘inevitable point of departure is the language of the provision
itself’’, read in context and having regard to the purpose of the provision and the background to the preparation
and production of the document’; Minister of Health v New Clicks South Africa (Pty) Ltd 2006 (2) SA 311 (CC)
[199]–[201] (permissible to refer to background material in statutory interpretation). Acceptable background
material is policy documents such as white papers or South African Law Reform Commission reports and the
explanatory memoranda attached to Bills introduced in Parliament. In SA Liquor Traders’ Association v Gauteng
Liquor Board 2009 (1) SA 565 (CC) [39] the court declined to consider whether it was permissible to rely on the
Hansard debates on a legislative measure as background material.
45
See, for example, the use of background material by Ackermann J in Ferreira (note 32 above) [46] to show
that the right to freedom and security of the person entails two separate, independent, but related rights. The
criteria laid down by Chaskalson P in Makwanyane (note 11 above) are not discussed.
46
Makwanyane (note 11 above) [10]; see also Soobramoney (note 28 above) [16]; Pretoria City Council
v Walker (note 37 above) [26].
47
Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) [22].
143
individual provisions read in isolation.48 The duty to read provisions against the context
of the Constitution as a whole also requires courts to harmonise the various provisions
and give effect to them.49
Not surprisingly, the Constitutional Court has made extensive and decisive use of
contextual interpretation. In S v Makwanyane, the Constitutional Court treated the right
to life, the right to equality and the right to dignity as together giving meaning to the
prohibition of cruel, inhuman or degrading treatment or punishment in s 11(2) of the
interim Constitution.50 The fact that the death sentence is imposed in very few cases for
murder (243 in the five years preceding the Makwanyane decision) when a large number
of murders are committed (according to police statistics there were more than 100 000
murders during the same period) makes the imposition of the sentence arbitrary and it
results in an infringement of the right to equality. The same arbitrariness also makes the
imposition of the sentence cruel. The fact that the death sentence permits killing and is
an infringement of the right to life also indicates that it is a cruel, inhuman and
degrading punishment.
Similarly, in Ferreira v Levin51 the majority of the Constitutional Court, in
interpreting the right to freedom of the person (s 11(1) of the interim Constitution, now
s 12(1)) attached considerable significance to the fact that the provision finds its place
alongside prohibitions of ‘detention without trial’, ‘torture’ and ‘cruel, inhuman and
degrading treatment’ before reaching the conclusion that the primary purpose of the
right is to protect ‘physical liberty’. The structure of the interim Bill of Rights and the
detailed formulation of the different rights were found to militate against an expansive
interpretation of the right to freedom. Also, the fact that limitations of the right to
freedom of the person were subject to the additional requirement of ‘necessary’ in the
general limitation clause of the interim Constitution indicated that the section is
concerned with freedom of an ‘higher order’ than the other freedoms, the limitations of
which are not subjected to such an onerous test. The textual context of the right to
freedom of the person therefore persuaded the majority to reject the broad definition
attributed to it by Ackermann J.52
In the Gauteng School Education Bill case53 the petitioners argued that s 32(c) of the
interim Constitution (the right to education) meant that every person could demand from
48
In Executive Council, Western Cape (note 34 above) the Constitutional Court held that the rule of statutory
interpretation that two subsections dealing with the same subject-matter should be read together is also applicable
to constitutional interpretation. The rule, the court stated, is consistent with the purposive approach to
constitutional interpretation. In our view, it is more accurately described as a manifestation of the systematic
method of interpretation.
49
United Democratic Movement v President of the Republic of South Africa (No 2) 2003 (1) SA 495 (CC)
[83]: ‘It was contended that there is an irreconcilable tension between subsection (1), which refers to Schedule
6A, and subsection (3) which states the requirement that the electoral system must result in general in
proportional representation. A court must endeavour to give effect to all the provisions of the Constitution. It
would be extraordinary to conclude that a provision of the Constitution cannot be enforced because of an
irreconcilable tension with another provision. When there is tension, the courts must do their best to harmonise
the relevant provisions, and give effect to all of them. Sections 157(1) and (3) must thus be read together in the
context of the Constitution and the section as a whole’.
50
Makwanyane (note 11 above) [10] n 11.
51
Ferreira (note 32 above) [170]–[174].
52
Ibid. At [69] Ackermann J defined the right to freedom as the ‘residual rights of individuals (where such or
similar rights are not protected elsewhere in Chapter 3) not to have ‘‘obstacles to possible choices and activities’’
placed in their way by . . . the State’. See, further, para 12.1(b) in Chapter 12 below.
53
Ex parte Gauteng Provincial Legislature: in re Dispute Concerning the Constitutionality of Certain
Provisions of the Gauteng School Education Policy Bill of 1995 1996 (3) SA 617 (CC).
144
the State the right to be educated in schools based on a common culture, language or
religion. In responding to this argument, Mahomed DP, who wrote for the court, made
decisive use of context:
Considered in context, there is no logical force in the construction favoured by the
petitioners. If a person has the right to basic education at public expense in terms of [s 32(a)
of the interim Constitution] and if he or she has the right to be instructed in the language of
his or her choice in terms of [s 32(b) of the interim Constitution], why would there be any
need to repeat in [s 32(c) of the interim Constitution] the right to education at public expense
through a common language? The object of subsection (c) is to make clear that while every
person has the right to basic education through instruction in the language of his or her
choice, those persons who want more than that and wish to have educational institutions
based on a special culture, language or religion which is common, have the freedom to set
up such institutions based on that commonality, unless it is not practicable. Thus interpreted,
section 32(c) is neither superfluous nor tautologous. It preserves an important freedom. The
constitutional entrenchment of that freedom is particularly important because of our special
history initiated during the fifties, in terms of the system of Bantu education. From that
period the State actively discouraged and effectively prohibited private educational
institutions from establishing or continuing private schools and insisted that such schools
had to be established and administered subject to the control of the State. The execution of
those policies constituted an invasion on the right of individuals in association with one
another to establish and continue, at their own expense, their own educational institutions
based on their own values. Such invasions would now be constitutionally impermissible in
terms of section 32(c).54
In one of its most controversial uses of contextual interpretation, in Soobramoney v
Minister of Health (KwaZulu-Natal), the Constitutional Court held that the right to life
(s 11) did not impose a positive obligation on the state to provide life-saving treatment
to a critically ill patient. The court held that the positive obligations of the state to
provide medical treatment were expressly spelt out in s 27, and that the court could not
interpret the right to life to impose additional obligations that were inconsistent with
s 27.55
Contextual interpretation is undoubtedly helpful, but it must be used with caution.
The first danger is to use context to limit rights instead of to interpret them. The Bill
of Rights differs from most other constitutional texts in that it envisages a two-stage
approach: first interpretation and then limitation. The balancing of rights against each
other or against the public interest must take place in terms of the criteria laid down
in s 36. In the first stage, context may only be used to establish the purpose or
meaning of a provision.
The second danger is that contextual interpretation may be used as a shortcut to
eliminate ‘irrelevant’ fundamental rights. In accordance with the principle of
constitutional supremacy, a court must test a challenged law or conduct against all
possibly relevant provisions of the Bill of Rights, whether the applicant relies on
them or not. Contextual interpretation should not be used to identify and focus only
on ‘the most relevant right’.56
54
Ibid [8].
55
Soobramoney (note 28 above) [15].
56
But see, contra, the approach of Chaskalson P in Soobramoney (note 28 above); S v Lawrence 1997 (4) SA
1176 (CC) [1] (‘The Constitution deals with unequal treatment and discrimination under section 8(2) [of the
interim Constitution], but that section was not relied upon by the appellant in the present case’); Osman v
Attorney-General, Transvaal 1998 (4) SA 1224 (CC) fn 2 (since the appellants did not place reliance on a specific
145
6.4 THE INTERPRETATION CLAUSE
Interpretation of the Bill of Rights

39. (1) When interpreting the Bill of Rights, a court, tribunal or
forum—
(a) must promote the values that underlie an open and democratic
society based on human dignity, equality and freedom;
(b) must consider international law; and
(c) may consider foreign law.
(3) The Bill of Rights does not deny the existence of any other rights
or freedoms that are recognised or conferred by common law,
customary law or legislation, to the extent that they are consistent with
the Bill.
(a) Section 39(1)

Section 39(1) demands an interpretation that promotes the values which underlie an
open and democratic society based on freedom and equality. It seems that the society
referred to is not necessarily the present South African society, but an abstract and ideal
one. In other words, an exercise is required that is analogous to that of ascertaining the
boni mores or legal convictions of the community in the law of delict.57 Despite the
importance of context, the everyday realities of South African society will therefore not
feature as much in the interpretative stage of the fundamental rights analysis, when the
scope of the right is determined. They may prove to be decisive at the stage when the
constitutionality of limitations of the right is considered.58
Section 39(1) refers to the use of public international law and foreign law. In S v
Makwanyane, the court stated that both binding and non-binding public international
law may be used as tools of interpretation:
International agreements and customary international law provide a framework within
which . . . [the Bill of Rights] can be evaluated and understood, and for that purpose
decisions of tribunals dealing with comparable instruments, such as the United Nations
Committee on Human Rights, the Inter-American Commission on Human Rights, and the
European Court of Human Rights, and in appropriate cases, reports of specialised agencies
fundamental right in the High Court, it was not open to them to raise it before the Constitutional Court, especially
since no notice was given and neither party was prepared for it). There is little that a court can do when the
applicant challenges the wrong statutory provision, as was the case in Lawrence [71]–[81] and East Zulu Motors
v Empangeni/Ngwelezane Transitional Council 1998 (2) SA 61 (CC). When the applicant challenges the correct
statutory provision but with reference to the wrong fundamental right, this should be pointed out to the parties
and they should then be allowed to make submissions on the issue.
57
‘The legal convictions of the community cannot be established by expert evidence: it is for the court to say
what they are. More realistically, the court, after considering all the facts, will form an intuitive opinion as to
whether the defendant should have acted, which it will then justify by invoking the legal convictions of the
community as interpreted by itself . . . a policy decision is called for’. P Boberg Law of Delict (1984) 214.
58
Compare, however, S v Dlamini 1999 (4) SA 623 (CC) [55].
146
such as the International Labour Organisation may provide guidance as to the correct
interpretation of particular provisions.59
These remarks make it clear that the Constitution permits reference for purposes of
interpretation to international human rights law in general.60 It is not confined to
instruments that are binding on South Africa.61 The fact that South Africa is at present
party to relatively few international human rights agreements is therefore not an obstacle
to invoking international human rights law for the purposes of s 39(1). Section 39(1)
invokes public international law primarily for the purpose of interpretation of rights and
for determining their scope, not for proving their existence.
It should be noted that s 39(1) states that courts ‘shall’ consider applicable public
international law, but ‘may’ consider foreign law.62 There is an injunction to
consider applicable international law, but not to consider foreign law. In fact, until
now the Constitutional Court has seldom referred to public international law, with
the exception of the jurisprudence of the European Court of Human Rights.63 Those
references to international law that are made do not appear to be as persuasive to the
Constitutional Court as comparative foreign case law.
The Constitutional Court held, in S v Makwanyane,64 that comparative human
rights jurisprudence will be of great importance while an indigenous jurisprudence is
developed. However, added the court, foreign case law will not necessarily provide a
safe guide to the interpretation of the Bill of Rights. In another case, the
Constitutional Court expressed its concerns in this regard as follows:
Comparative research is generally valuable and is all the more so when dealing with
problems new to our jurisprudence but well developed in mature constitutional democracies.
Both the interim and the final Constitutions, moreover, indicate that comparative research is
either mandatory or advisable. . . . Nevertheless the use of foreign precedent requires
circumspection and acknowledgement that transplants require careful management. Thus,
for example, one should not resort to the Barker test or the Morin approach without
recognising that our society and our criminal justice system differ from those in North
America. Nor should one, for instance, adopt the assertion of right requirement of Barker
without making due allowance for the fact that the vast majority of South African accused
59
Makwanyane (note 11 above) [36]–[37].
60
The court reaches its conclusion with reference to the work of John Dugard (see footnote 36 of the
judgment). According to Dugard, s 39(1) does not merely require a court to consider treaties to which South
Africa is a party or customary rules that have been accepted by South African courts, but also to—(a)
international conventions, whether general or particular, establishing rules expressly recognised by the contesting
states; (b) international custom, as evidence of a general practice accepted as law; (c) the general principles of
law recognised by civilised nations; (d) judicial decisions and the teaching of the most highly qualified publicists
of the various nations, as subsidiary means for the determination of rules of law. Dugard argues that such a
conclusion follows logically from the use of the term ‘public international law’ without qualification in s 39(1)
and to give maximum effect to the otherwise incomplete catalogue of rights in the Bill of Rights. See J Dugard
‘The Role of International Law in Interpreting the Bill of Rights’ (1994) 101 SAJHR 208.
61
Binding international law has greater persuasive force since ‘the lawmakers of the Constitution should not
lightly be presumed to authorise any law which might constitute a breach of the obligations of the State in terms
of [such] international law’. See Azanian Peoples Organisation (AZAPO) v President of the Republic of South
Africa 1996 (4) SA 671 (CC) [26]; Dawood (note 28 above) 1034A.
62
See Sanderson (note 13 above) [26].
63
South African courts seldom refer to public international law, even though some forms of international law
(notably customary international law) are, according to s 232, part of the law of the land. See however the
extensive examination of international law in decisions such as Grootboom (note 47 above) [26]–[33] and [75];
Minister of Health v Treatment Action Campaign (2) 2002 (5) SA 721 (CC) and Kaunda v President of the
Republic of South Africa 2005 (4) SA 235 (CC).
64
Note 11 above [37].
147
are unrepresented and have no conception of a right to a speedy trial. To deny them relief
under section 25(3)(a) because they did not assert their rights would be to strike a pen
through the right as far as the most vulnerable members of our society are concerned. It
would be equally unrealistic not to recognise that the administration of our whole criminal
justice system, including the law enforcement and correctional agencies, are under severe
stress at the moment.65
Despite these remarks, many of the Constitutional Court’s decisions read like works of
comparative constitutional law.66 Extensive reference is almost always made to the legal
positions in especially internationally recognised open and democratic societies based
on freedom and equality.
(b) Section 39(2)

Section 39(2) has little to do with the interpretation of the Constitution, but concerns the
interpretation of statutes and the development of the common law and customary law.
While the section does not concern the ‘interpretation’ of the Constitution, it is crucial to
the ‘application’ of the Constitution. Section 39(2) should therefore be read with
s 8—the application clause—since it provides for indirect application (sometimes called
‘the permeating effect’) of the Bill of Rights to the law. The indirect application of the
Bill of Rights is discussed in Chapter 3 above.
(c) Section 39(3)

Section 39(3) simply confirms that the Bill of Rights does not prevent a person from
relying on rights conferred by legislation, the common law or customary law. But since
the Bill of Rights is supreme law, such rights may not be inconsistent with the Bill of
Rights.
For example if the right against self-incrimination (s 35(3) (j)) is only available to
persons accused in criminal proceedings, nothing prevents a person in any other
proceedings from relying on his or her common law right against self-incrimination to
the extent that the right is available. Or, if a person may not invoke the Bill of Rights to
obtain a remedy when that person is refused accommodation in an hotel, nothing would
prevent the person from seeking a remedy in the Promotion of Equality and Prevention
of Unfair Discrimination Act 4 of 2000.
65
Sanderson (note 13 above) [26].
66
See, for example, the judgment of Ackermann J in Fose v Minister of Safety and Security 1997 (3) SA 786
(CC). The value of the extensive comparative analysis of constitutional remedies undertaken by Ackermann J
(which considers the position in the United States, Canada, Britain, Trinidad and Tobago, New Zealand, Ireland,
India, Sri Lanka and Germany) was questioned by Kriegler J: ‘In my respectful view it is neither necessary nor
prudent to range as wide as does Ackermann J in his judgment. I decline to engage in a debate about the merits or
otherwise of remedies devised by jurisdictions whose common law relating to remedies for civil wrongs bears no
resemblance to ours and whose constitutional provisions have but a passing similarity to our s 7(4)(a) [of the
interim Constitution]’. See also Haffejee NO v Ethekwini Municipality 2011 (6) SA 134 (CC) (use of comparative
foreign law to ascertain whether the determination of compensation is a prerequisite for the constitutional
validity of expropriation).
148
6.5 OTHER PROVISIONS OF THE CONSTITUTION

The Preamble may be used in the interpretation of the substantive provisions of the Bill
of Rights. Some of the general provisions contained in Chapter 14 of the Constitution
may also be relevant. Finally, s 240 provides that ‘in the event of an inconsistency
between different texts of the Constitution, the English text prevails’.
149
Chapter Seven
Limitation of Rights
7.1 The general limitation section–section 36 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
(a) Introduction: the nature of a general limitation provision . . . . . . . . 150
(b) The two-stage approach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152
7.2 Criteria justifying the limitation of rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
(a) Law of general application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
(i) Authorised by law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
(ii) General application. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156
(iii) Administrative action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161
(b) Reasonableness and justifiability in an open and democratic
society based on human dignity, equality and freedom . . . . . . . . . . . 162
(i) Proportionality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163
(ii) Section 36(1)(a): the nature of the right . . . . . . . . . . . . . . . . . . . . . 164
(iii) Section 36(1)(b): the importance of the purpose of the
limitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166
(iv) Section 36(1)(c): the nature and extent of the limitation . . . . 168
(v) Section 36(1)(d): the relation between the limitation and its
purpose. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169
(vi) Section 36(1)(e): less restrictive means to achieve the
purpose. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170
(c) The s 36(1) enquiry in a nutshell . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
7.3 Limitation of rights by other provisions of the Constitution . . . . . . . . . . 172
7.4 Demarcations of rights and special limitation clauses. . . . . . . . . . . . . . . . . 173
7.1 THE GENERAL LIMITATION SECTION–SECTION 36
(a) Introduction: the nature of a general limitation provision

Constitutional rights and freedoms are not absolute. They have boundaries set by the
rights of others and by important social concerns such as public order, safety, health and
democratic values. In the South African Constitution, a general limitation section—
s 36—sets out specific criteria for the justification of restrictions of the rights in the Bill
of Rights.1
1
The section applies only to the limitation of the rights in the Bill of Rights. Provisions elsewhere in the
Constitution that directly or indirectly grant rights cannot be limited by reference to s 36: Van Rooyen v S
(General Council of the Bar of South Africa Intervening) 2002 (5) SA 246 (CC) [35] (judicial independence not
subject to limitation).
150
Limitation of Rights 7.1
Limitation of Rights
36. (1) The rights in the Bill of Rights may be limited only in terms of
law of general application to the extent that the limitation is reasonable
and justifiable in an open and democratic society based on human dig-
nity, equality and freedom, taking into account all relevant factors,
including—
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.
(2) Except as provided in subsection (1) or in any other provision of
the Constitution, no law may limit any right entrenched in the Bill of
Rights.
‘Limitation’ is a synonym for ‘infringement’ or, perhaps, ‘justifiable infringement’. A

law that limits a right infringes the right. However, the infringement will not be
unconstitutional if it takes place for a reason that is accepted as a justification for
infringing rights in an open and democratic society based on human dignity, equality
and freedom. In other words, not all infringements of fundamental rights are
unconstitutional. Where an infringement can be justified in accordance with the criteria
in s 36 it will be constitutionally valid.
It must be emphasised that the existence of a general limitation section does not
mean that the rights in the Bill of Rights can be limited for any reason. It is not
simply a question of determining whether the benefits of a limitation to others or to
the public interest will outweigh the cost to the right-holder. If rights can be
overridden simply on the basis that the general welfare will be served by the
restriction then there is little purpose in the constitutional entrenchment of rights.2
The reasons for limiting a right need to be exceptionally strong. The South African
Constitution permits the limitation of rights by law but requires the limitation to be
justifiable. This means that the limitation must serve a purpose that most people
would regard as compellingly important.3 But, however important the purpose of the
limitation, restrictions on rights will not be justifiable unless there is good reason for
2
See M Kumm ‘Political Liberalism and the Structure of Rights’ in G Pavlakos (ed) Law, Rights and
Discourse: The Legal Philosophy of Robert Alexy 131. According to Kumm, the general conception of rights in
the liberal tradition is that rights may not be overridden by ordinary considerations of policy. This formulation
unites Dworkin’s conception of rights as ‘trumps’ (to be meaningful, individual rights must trump or outweigh
collective goals), Rawls’s notion of the priority of the right over the good and Habermas’s conception of rights as
having a deontological character that withdraws them from participation in a cost-benefit analysis.
However, the limitation section in the South African Bill of Rights tells us that, while rights will usually trump
collective goals, there are occasions when rights must give way to overridingly important social concerns. The
theoretical case for reconciling the permissibility of justifiable limitation with the idea of the overriding
importance of constitutional rights is made in R Alexy A Theory of Constitutional Rights (trans J Rivers) (2002).
According to Alexy, conflict between rights and other rights and between rights and other constitutionally
recognised principles requires balancing. Balancing is an unavoidable and defensible practice of constitutional
adjudication.
3
D Meyerson Rights Limited (1997) 36–43.
151
thinking that the restriction would achieve the purpose it is designed to achieve, and
that there is no other ‘realistically available’ way in which the purpose can be
achieved without restricting rights.4
(b) The two-stage approach

The Constitution provides for the limitation of fundamental rights by way of a general
limitation section. It is ‘general’ because it applies to all the rights in the Bill of Rights
and provides that all the rights may be limited according to the same set of criteria.5 In
this regard, the Constitution differs from many other bills of rights and international
rights instruments. For example, the United States Constitution does not have a
limitation clause at all.6 The German Bill of Rights, on the other hand, does not have a
general limitation clause but contains specific limitation provisions attached to many of
the fundamental rights.7 A similar structure is found in many of the international human
rights instruments.8 The principal model for the South African Bill of Rights is the
Canadian Charter of Rights and Freedoms, which contains a list of rights and a general
limitation clause governing the limitation of those rights.9
4
S v Manamela 2000 (3) SA 1 (CC) [32].
5
It is, however, difficult to apply the general limitation clause to rights with internal demarcations or
qualifications that repeat the phrasing of s 36 or that make use of similar criteria. For example, s 33(1) which
provides, inter alia, a right to lawful and reasonable administrative action will be violated by unlawful or
unreasonable administrative action. It is hard to think of a way of justifying such administrative action as a
‘reasonable’ limitation of the right, or of arguing that it is ‘in terms of law of general application’. There are
similar problems with the application of s 36 to the equality clause (see Chapter 9 below), to the occupational
freedom right in s 22 (see Chapter 22 below), to the property right (see Chapter 25 below) and to the right to
freedom of person in s 12(1). See Malachi v Cape Dance Academy International (Pty) Ltd 2010 (6) SA 1 (CC)
[40] (difficult to imagine the circumstances in which a law that allows detention without just cause could ever be
justifiable). In First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Services 2002
(4) SA 768 (CC), the Constitutional Court acknowledged the difficulties of applying the limitation clause to a
violation of s 25(1) but found it unnecessary to decide the question whether the property right could ever be
justifiably limited. The positive aspects of the socio-economic rights in ss 26 and 27 (rights to reasonable
measures to achieve progressive realisation of the listed goals) are also inappropriate for limitations analysis. See
Khosa v Minister of Social Development 2004 (6) SA 505 (CC) which tested legislation restricting a social
welfare benefit to citizens against the criterion of ‘reasonableness’ in s 27(2) and not against the limitation
section. Repeating the move it employed in First National Bank, the court acknowledged the difficulty of
applying s 36 to the socio-economic rights but expressed no definitive opinion on the issue ([83]–[84]). On
demarcations of rights, see para 7.4 below.
In the case of the socio-economic rights, because of the internal modifiers that apply to positive duties under
ss 26(2) and 27(2), the court has effectively collapsed the two stages in assessing the justification of alleged
breaches of the positive obligations arising from these sections. For these duties ‘the entire justification argument
will occur in the context of the internal reasonableness test’. Liebenberg Socio-Economic Rights 96.
6
Limitations are established by means of interpretation of the right by the courts. For example, the First
Amendment to the US Constitution provides simply that ‘Congress shall make no law . . . abridging the freedom
of speech’. This does not mean that the right is absolute. Over the years, the US courts have held that the
government can justifiably pass laws prohibiting obscene speech, defamation, fighting words, words creating a
clear and present danger to public order and misleading or false advertising.
7
For example, art 2(1) of the German Basic Law: ‘Everyone shall have the right to the free development of his
personality in so far as he does not violate the rights of others or offend against the constitutional order or the
moral code’.
8
Such as the International Covenant on Civil and Political Rights, 1966 and the European Convention on
Human Rights. For example, art 18(3) of the Covenant permits limitation of the freedom to manifest one’s
religion or beliefs if the limitations are ‘prescribed by law and are necessary to protect public safety, order, health,
or morals or the fundamental rights and freedoms of others’.
9
The limitation clause is s 1, which provides that ‘the rights and freedoms set out in . . . [the Charter] are
subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic
society’. The influence of the Canadian model on the drafting and interpretation of the South African limitation
152
One consequence of the inclusion of a general limitation section in the Bill of Rights
is that the process of considering the limitation of rights must be distinguished from that
of interpretation of the rights.10 As was pointed out in Chapter 2 above, in direct Bill of
Rights litigation, once the preliminary issues have been cleared out of the way, the court
asks two questions. The first is whether a right in the Bill of Rights has been infringed
by law or conduct of the respondent. The second (which necessarily depends on a
positive answer to the first question) is whether the infringement can be justified as a
permissible limitation of the right.11 This is the two-stage analysis of identifying an
infringement of rights and evaluation of the justifications for the infringement.
We also saw in Chapter 2 that the first stage of the analysis is principally a matter of
interpretation of the provisions of the law and of the Bill of Rights. The court must
determine the scope of the rights by a process of interpretation and must ascertain
whether the right has been infringed by the challenged law or conduct. The arguments
required and any evidence that is needed will have to be brought by the applicant. If the
court finds that a right has been infringed, the respondent (usually the state, but
sometimes the person relying on the validity of the legislation) may then seek to
demonstrate that the infringement of the right is nevertheless permissible in terms of the
criteria for a legitimate limitation of rights laid down in s 36.12 Even if the respondent
makes no attempt to discharge its ‘burden of justification’,13 the court must nevertheless
consider the possibility that a limitation of rights is justifiable. This was the approach of
the Constitutional Court in National Coalition for Gay and Lesbian Equality v Minister
of Justice.14 Despite the fact that the respondent Minister indicated that he would abide
by the decision of the court and did not attempt to defend the laws that were in question,
the court mero motu and at considerable length considered whether a limitation
section is surveyed by S Woolman & H Botha ‘Limitations’ in Woolman, Bishop and Brickhill (eds)
Constitutional Law of South Africa para 34.2(b).
10
It also permits a ‘generous’ interpretation to be given to the rights at the first stage of analysis. See, further,
Chapter 6 above. As Halton Cheadle explains it, the courts ‘should engage in rights analysis [ie, the first stage] on
the understanding that there is no need to shape the contours of the right in order to accommodate pressing social
interests’. ‘Limitation of Rights’ in H Cheadle et al South African Constitutional Law: The Bill of Rights (2002)
698–699.
11
In Christian Education South Africa v Minister of Education 2000 (4) SA 757 (CC) the Constitutional Court
showed that it was willing to depart from the two-stage approach to rights and their limitation in order to avoid
having to decide the question whether a right has been infringed. The court declined to decide whether a law
prohibiting corporal punishment in schools was a violation of the right of freedom of religion and the right to
practise a religion in community with others. Instead, the court went directly to the limitation clause. It held that,
on the assumption for purposes of argument that the religion rights had been infringed, the infringement would be
a permissible limitation of the rights.
It must be said that this is an extremely artificial way of deciding a case. The balancing exercise required by the
limitation clause cannot be accurately carried out with only a ‘hypothetical’ violation of rights on one side of the
scale. Moreover, when the case is decided on the basis of an assumption rather than a holding that a right has
been limited, the entire discussion of the justifiability of the limitation becomes a hypothetical exercise with no
precedential value.
The Christian Education move makes a reappearance in the majority decision in S v Jordan 2002 (6) SA 642
(CC) [28]–[29].
12
13
Moise v Greater Germiston Transitional Local Council 2001 (4) SA 491 (CC) [19]. In Minister of Home
Affairs v National Institute for Crime Prevention and the Re-integration of Offenders (NICRO) 2005 (3) SA 280
(CC) [34] the court described it as an ‘onus of a special type’.
According to Woolman & Botha (note 9 above) para 34.5 a distinction should be made between law or conduct
that limits expressly or intentionally a fundamental right and law or conduct that has the unintended consequence
of limiting a fundamental right. A more stringent test should apply to the former than to the latter.
14
National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6 (CC).
153
argument could be made in favour of the laws.15 In other cases, the Constitutional Court
has indicated that only a cursory form of limitation analysis needs to be undertaken in
cases where the respondent puts up a half-hearted or inadequate case for justification16
or where the respondent clearly shares the view of the applicant that the law in question
is unconstitutional.17 In such cases, it seems, it is unlikely that there will be much to be
said in favour of the law’s justifiability and a court does not need to devote much energy
to the issue.18
There is an additional important difference between the first stage of considering the
interpretation of a right and the second stage of considering the justifiability of a
limitation of that right. The question whether an infringement of a right is a legitimate
limitation of that right frequently involves a far more factual enquiry than the question
of interpretation. Appropriate evidence must often be led to justify a limitation of a right
in accordance with the criteria laid down in s 36. A court cannot determine in the
abstract whether the limitation of a right is ‘reasonable’ or ‘justifiable in an open and
democratic society based on human dignity, equality and freedom’. This determination
often requires evidence, such as sociological or statistical data, on the impact that the
legislative restriction has on society.19 Where justification rests on factual and/or policy
considerations the respondent must put such material before the court. Failure to do so
may lead to a finding that the limitation is not justifiable.20 In this regard rule 30 of the
15
Ibid [33]–[57]. See also Phillips v Director of Public Prosecutions, Witwatersrand Local Division 2003 (3)
SA 345 (CC) [20] (absence of evidence and argument from the state in favour of justification does not exempt the
court from the obligation to conduct a justification analysis).
16
See S v Steyn 2001 (1) SA 1146 (CC) [32]–[36]; Richter v Minister of Home Affairs 2009 (3) SA 615 (CC)
[78].
17
See S v Niemand 2002 (1) SA 21 (CC) [26], Moise (note 13 above) [20]–[21], Johncom Media Investments
Ltd v M 2009 (4) SA 7 (CC) [26].
18
Indeed, in Satchwell v President of Republic of South Africa 2002 (6) SA 1 (CC) [26] the court devoted no
energy at all to the issue and simply accepted (in a single sentence) the respondents’ concession that the law in
question was unjustifiable. The concession is probably explained by the fact that the law had been found to be
unfair discrimination. There is, as we argue in Chapter 9 below, not much point in trying to justify unfair
discrimination. Much the same explanation can be offered for the sketchy treatment of the limitation issue in J v
Director-General: Department of Home Affairs 2003 (5) SA 621 (CC) [15].
19
Sometimes the purpose of a limitation and the relationship between the limitation and its purpose will be
self-evident. In such cases, according to Cameron J in S v Meaker 1998 (8) BCLR 1038 (W), there is no need for
a mountain of statistics and reports to support a limitation argument. A ‘common sense analysis’ of the purpose
and need for legislation and of the ‘social or economic milieu’ giving rise to the legislation would suffice
(1047A–G). This approach allowed the court to uphold a reverse onus presumption in road traffic legislation as a
justifiable limitation of the right to be presumed innocent, on the strength of an affidavit from the acting director
of the Johannesburg Traffic Management Service, testifying to the ‘practical importance and necessity’ of the
presumption.
20
Moise (note 13 above) [19]: ‘If the government wishes to defend the particular enactment, it then has the
opportunity—indeed an obligation—to do so. The obligation includes not only the submission of legal argument
but placing before court the requisite factual material and policy considerations. Therefore, although the burden
of justification under section 36 is no ordinary onus, failure by government to submit such data and argument
may in appropriate cases tip the scales against it and result in the invalidation of the challenged enactment’. See
also Phillips v Director of Public Prosecutions 2003 (3) SA 345 (CC) [20].
In NICRO (note 13 above), the court noted that there are some cases ‘where the concerns to which the
[limiting] legislation is addressed are subjective and not capable of proof as objective facts. A legislative choice
is not always subject to courtroom fact-finding and may be based on reasonable inferences unsupported by
empirical data. When policy is in issue it may not be possible to prove that a policy directed to a particular
concern will be effective’ [35]. Parties relying on justification arguments that are not based on facts ‘should place
sufficient information before the court as to the policy that is being furthered, the reasons for that policy, and why
it is considered reasonable in pursuit of that policy to limit a constitutional right’. Failure to do so may be fatal to
the justification claim. However, the court held, there may ‘be cases where despite the absence of such
information on the record, a court is nonetheless able to uphold a claim of justification based on common sense
154
Limitation of Rights 7.1–7.2
Constitutional Court’s 1998 rules21 makes provision for the introduction of factual
material that is relevant to the determination of the issues before the court provided that
the facts are common cause or otherwise incontrovertible; or are of an official, scientific,
technical or statistical nature and capable of easy verification.22
7.2 CRITERIA JUSTIFYING THE LIMITATION OF RIGHTS

A law may legitimately limit a right in the Bill of Rights if it is (a) a law of general
application that is (b) reasonable and justifiable in an open and democratic society based
on human dignity, equality and freedom. Each of these requirements is dealt with in
detail below.
(a) Law of general application

(i) Authorised by law
Only a ‘law of general application’ can validly limit a right in the Bill of Rights. This is
the minimum requirement for the limitation of a right. A limitation must be authorised
by a law, and the law must be of general application.
The ‘law of general application’ requirement is the expression of a basic principle of
liberal political philosophy and of constitutional law known as the rule of law. There are
two components to this principle. The first is that the power of the government derives
from the law. The government must have lawful authority for its actions, otherwise it
will not be a lawful government but will be despotism or tyranny. The practical effect of
this component is illustrated by August v Electoral Commission,23 in which the
Constitutional Court considered the validity of the Independent Electoral Commission’s
failure to take steps to allow prisoners to register and vote in the 1999 general election.
The Commission’s inaction had the effect of denying prisoners their right to vote and,
because it was not authorised by any law,24 there was no possibility of justifying the
infringement of rights in terms of s 36.25
What forms of law qualify as ‘law of general application’? Though the Constitutional
Court has not dealt with this question directly it has given a wide interpretation to the
and judicial knowledge’ [36]. But NICRO was itself not such a case. In the absence of clear evidence of the policy
objectives sought to be achieved by the disenfranchisement of convicted prisoners, the justification argument had
to fail [65]–[67]. See also Centre for Child Law v Minister for Justice and Constitutional Development 2009 (6)
SA 632 (CC) [53]–[54] (insufficient evidence to justify including child offenders in minimum sentencing
legislation); British American Tobacco South Africa (Pty) Ltd v Minister of Health [2012] 3 All SA 593 (SCA)
[19]–[22] (sufficient evidence of facts and policy considerations justifying ban on tobacco advertising and
promotion).
21
GN R757 of 29 May 1998.
22
For example, in S v Makwanyane (note 12 above) the State, in support of its argument that the death penalty
was a justifiable limitation of rights, submitted statistical evidence relating to the incidence of violent crime in
South Africa and the increase in such crimes since the 1992 moratorium on the carrying out of the death penalty.
By contrast, in NICRO (note 13 above) the argument that the disenfranchisement of convicted prisoners was
justified by the additional costs of registering prisoners and providing mobile voting facilities in prisons failed.
This was because the argument was advanced simply by assertion and was not backed up by any ‘information as
to the logistical problems or estimates of the costs involved’ ([49]).
23
August v Electoral Commission 1999 (3) SA 1 (CC).
24
The Electoral Act 73 of 1998 did not deny prisoners the right to vote, but simply prescribed that eligible
voters had to register on the common voters’ roll administered by the Commission in order to vote. For budgetary
and administrative reasons, the Commission deliberately failed to take any steps that would have allowed
prisoners to register or vote.
25
August (note 23 above) [23].
155
meaning of ‘law’ elsewhere in the Bill of Rights. On the strength of this interpretation it
seems that all forms of legislation (delegated and original) qualify as ‘law’,26 as does the
common law (both the private law and the public law rules of the common law such as
criminal law) and customary law.27 A mere policy or practice (even of an organ of state)
cannot qualify as ‘law’.28 A contractual provision does not qualify as a law of general
application.29 While in most instances the limitation of rights is performed by the
legislature, the courts also have the power to develop limitations by virtue of their power
to develop the common law.30
(ii) General application

The second component of the rule of law relates to the character or quality of the law
that authorises a particular action. The law must be general in its application. At the
level of form, this means that the law must be sufficiently clear, accessible and precise
that those who are affected by it can ascertain the extent of their rights and obligations.31
On a substantive level it means that, at a minimum, the law must apply impersonally, it
must apply equally to all and it must not be arbitrary in its application.32 The ‘law of
general application’ requirement in s 36 therefore prevents laws that have personal,
unequal or arbitrary application from qualifying as legitimate limitations of rights.
Ackermann J has explained why there can be no room for such laws in a constitutional
state:
In reaction to our past, the concept and values of the constitutional state, of the ‘regstaat’,
and the constitutional right to equality before the law are deeply foundational to the creation
of the ‘new order’ referred to in the preamble [to the interim Constitution]. We have moved
from a past characterised by much which was arbitrary and unequal in the operation of the
law to a present and a future in a constitutional state where State action must be such that it
26
In Larbi-Odam v MEC for Education (North-West Province) 1998 (1) SA 745 (CC) [27], the Constitutional
Court held that subordinate legislation applying to all educators in South Africa was a law of general application.
27
Du Plessis v De Klerk 1996 (3) SA 850 (CC) [44] and [136]. Compare the dissenting judgment of
Mokgoro J in President of the Republic of South Africa v Hugo 1997 (4) SA 1 (CC) [99].
28
Hoffmann v South African Airways 2001 (1) SA 1 (CC) [41] (policy of an organ of state that HIV-positive
persons not qualified for employment as airline cabin attendants not a law of general application).
29
Barkhuizen v Napier 2007 (5) SA 323 (CC) [26].
30
Section 8(3)(b) specifically authorises the courts, in cases involving the direct horizontal application of the
Bill of Rights to common law, to ‘develop rules of the common law to limit . . . [rights], provided that the
limitation is in accordance with s 36’. Cheadle (note 10 above) 696. Rights can also be limited in cases of the
indirect application of the Bill of Rights. For example, in S v Mamabolo 2001 (3) SA 409 (CC) a reading-down
was employed to save the common-law offence of scandalising the court in the form of contempt ex facie curiae
from constitutional invalidity. The interpretation arrived by the court nevertheless entailed the limitation of the
right to freedom of expression. The limitation was however held to be justifiable, principally because the court’s
narrow interpretation of the ambit of the offence (committed only in a few cases where the utterance in question
was likely to damage the administration of justice) resulted in a minimal interference with the right in the
interests of protecting the legitimacy of the judicial process ([48]).
31
Dawood v Minister of Home Affairs 2000 (3) SA 936 (CC) [47]; South African Liquor Traders Association
v Chairperson, Gauteng Liquor Board 2009 (1) SA 565 (CC) [25]–[28]; Affordable Medicines Trust v Minister of
Health 2006 (2) SA 247 (CC). The requirement of accessibility additionally requires laws to be prospective in
their operation: Masiya v Director of Public Prosecutions, Pretoria 2007 (5) SA 30 (CC) [52].
32
AV Dicey An Introduction to the Study of the Law of the Constitution 10 ed (1959) chapter IV. As Jackson J
of the US Supreme Court put it in Railway Express Agency v New York 336 US 106 (1949) at 111–113, ‘[T]here
is no more effective practical guaranty against arbitrary and unreasonable government than to require that the
principles of law which officials would impose upon a minority must be imposed generally. Conversely, nothing
opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom
they will apply legislation and thus to escape the political retribution that might be visited upon them if larger
numbers were affected.’
156
is capable of being analysed and justified rationally. The idea of the constitutional state
presupposes a system whose operation can be rationally tested against or in terms of the law.
Arbitrariness, by its very nature, is dissonant with these core concepts of our new
constitutional order. Neither arbitrary action nor laws or rules which are inherently arbitrary
or must lead to arbitrary application can, in any real sense, be tested against the precepts or
principles of the Constitution. Arbitrariness must also, by its very nature, lead to unequal
treatment of persons. Arbitrary action, or decision-making, is incapable of providing rational
explanation as to why similarly placed persons are treated in a substantially different way.
Without such a rational justifying mechanism, unequal treatment must follow.33
The second aspect of the rule of law and the ‘law of general application’
requirement—the idea that a rule must apply impersonally and not to particular people
or groups34 and that it must not be unequal or arbitrary in its application—was
considered by the Constitutional Court in two cases. In S v Makwanyane, it was argued
that s 277 of the Criminal Procedure Act 51 of 1977, in terms of which a person could be
sentenced to death, did not constitute a law of general application since it did not apply
uniformly in the whole of South Africa. The death sentence had been abolished by
decree of the military government in the Ciskei bantustan in 1990. This meant that a
person could not be sentenced to death in this part of South Africa. The court rejected
the argument with little hesitation on the basis that:
[s]uch a construction would defeat the apparent purpose of s 229 [IC], which is to allow
different legal orders to exist side by side until a process of rationalisation has been carried
out, and would inappropriately expose a substantial part if not the entire body of our
statutory law to challenges under s 8 of the Constitution. It follows that disparities between
the legal orders in different parts of the country, consequent upon the provisions of s 229 of
the Constitution, cannot for that reason alone be said to constitute a breach of the equal
protection provisions of s 8, or render the laws such that they are not of general
application.35
In President of the Republic of South Africa v Hugo36 the Constitutional Court
considered the validity of a Presidential Act that ordered the release from prison of all
mothers who had children under the age of twelve. The Presidential Act was authorised
by s 82(1)(k) of the interim Constitution, which permits the President ‘to pardon or
reprieve offenders’. The majority of the court held that the Presidential Act did not
violate the right to equality and non-discrimination and therefore did not consider the
issue of limitation. Mokgoro J dissented, holding that the Presidential Act did constitute
unfair discrimination. This raised the question whether the infringement could constitute
a justifiable limitation of the right. A Presidential Act differs from other forms of
delegated legislation in that it is not authorised by a specific grant of legislative power in
an Act of Parliament or provincial law. Rather the President’s power is a discretionary
33
S v Makwanyane (note 12 above) [156].
34
Equal application does not mean that a law must apply to everyone, but simply that it applies to everyone
that it regulates in the same way. So, for example, the fact that the Code of Conduct for Broadcasting Services
under consideration in Islamic Unity Convention v Independent Broadcasting Authority 2002 (4) SA 294 (CC)
applied only to broadcasters and not to the public at large did not matter. It applied equally to all broadcasters and
therefore qualified as a law of general application.
35
S v Makwanyane (note 12 above) [32]. It would be equally absurd to suggest that, for example, a law of the
Gauteng legislature cannot qualify as ‘law of general application’ simply because it does not apply uniformly
throughout the Republic. The structure of government established in the Constitution envisages provincial and
local government legislation that is limited in its area of application.
36
Note 19 above.
157
executive power specifically granted by s 82(1) of the interim Constitution.37 Moreover,

a Presidential Act, unlike delegated legislation, is not published in the Government
Gazette. Can it therefore qualify as ‘law of general application’ and therefore as a
legitimate limitation on a fundamental right?
Mokgoro J looked to the interpretation given by the European Court of Human
Rights and the Canadian Supreme Court to the analogous phrase ‘prescribed by
law’.38 The ECHR has held that at least two requirements flow from the expression
‘prescribed by law’. First, the law must be adequately accessible: the citizen must be
able to have an indication that is adequate in the circumstances of the legal rules
applicable to a given case. Secondly, a norm cannot be regarded as a ‘law’ unless it
is formulated with sufficient precision to enable citizens to regulate their conduct.
Citizens must be able—if need be with appropriate legal advice—to foresee, to a
degree that is reasonable in the circumstances, the consequences of a given action.39
As for the Canadian law, the Supreme Court has consistently held that rules that
emanate from statute, delegated legislation and the common law are ‘prescribed by
law’. More controversial however is the question whether norms that emanate from
directives or guidelines issued by government departments or agencies, but which are
not officially published delegated legislation, can be said to be ‘prescribed by law’.40
According to Mokgoro J, the idea underlying both the ‘prescribed by law’ and the
‘law of general application’ requirements is the rule of law. Rules affecting
fundamental rights should be accessible, precise and of general application. People
should be able to know of the law, and should be able to conform their conduct to
the law. Laws should apply generally, and should not target specific individuals.41
The Presidential Act, according to Mokgoro J, complied with all these
requirements.42 As for the argument that the Presidential Act was not ‘law’ because
it was not conventional delegated legislation, Mokgoro J held that the Presidential
Act was sufficiently similar to delegated legislation to be considered law. The only
difference between the Presidential Act, and standard delegated legislation was the
37
The equivalent section in the 1996 Constitution is s 84 which grants the President ‘the powers . . . necessary
to perform the functions of Head of State and head of the national executive’. These powers specifically include
the power of ‘pardoning or reprieving offenders’ (s 84(2)(j)). The powers conferred by s 84 are known in English
constitutional law as ‘prerogative powers’, the common-law powers and functions possessed by the Crown
(ie, the head of state) and distinguished from those powers which are granted to the Crown by legislation.
38
The European Convention on Human Rights provides that valid limitations of rights must be ‘prescribed by
law’. The word ‘law’ in this phrase has been held to include statute law, unwritten law, subordinate legislation
and royal decrees: Klass v Federal Republic of Germany (1979) 2 EHRR 214. Similarly, the rights in the
Canadian Charter of Rights and Freedom are subject to ‘such reasonable limits prescribed by law as can be
demonstrably justified in a free and democratic society’. This is a requirement that rights and freedoms are
diminished only by ‘formal and ascertainable executive and legislative norms as opposed to arbitrary acts of
private individuals and government officials’: G Beaudoin & EP Mendes (eds) The Canadian Charter of Rights
and Freedoms 3 ed (1996) 3–8.
39
Sunday Times v United Kingdom (1979) 2 EHRR 245. In National Coalition for Gay and Lesbian Equality
v Minister of Justice 1998 (6) BCLR 726 (W) the High Court considered an argument that the common law
offence of commission of an ‘unnatural sexual act between men’ was too vague and imprecise to constitute a law
of general application. On a consideration of the authorities the court appeared to accept that vagueness would
disqualify a law from being a law of general application but held that the prohibition of an unnatural sexual act
was not too vague to be understood.
40
See Committee for the Commonwealth of Canada v Canada (1991) 77 DLR (4th) 385.
41
Hugo (note 27 above) [102].
42
This was in spite of the fact that the Presidential Act was not published in the Government Gazette.
According to Mokgoro J ‘formal publication requirements are not dispositive for the purposes of . . . [the law of
general application requirement]’.
158
absence of an enabling statute. That difference did not justify considering the
Presidential Act not to be law. Delegated legislation obtains its legitimacy from its
parent statute which must be passed by a democratic process in the legislature.
Similarly, a direct exercise of power granted by the Constitution derives its
legitimacy from the Constitution, which was the product of a democratic drafting
process.43 In conclusion, Mokgoro J held as follows:
the ‘law of general application’ requirement is merely a precondition to the applicability of
s 33(1) [IC]. If a limitation is in substance ill-advised, that will be caught by the rigours of
the limitation test itself. To conclude, the Presidential Act is an exercise of constitutional
power in the form of general, publicly accessible rules which affect the rights of individuals.
In my view, that is sufficient to fall within ‘law of general application’ for the purposes of
s 33(1).44
To summarise, Mokgoro J takes the following approach to the ‘law of general
application’ requirement:
(1) ‘Law’ for purposes of the requirement includes rules of legislation, delegated
legislation and common law, and exercises of executive rule-making authorised by
the Constitution.45 As for executive rule-making, it is not necessary that such rules
are formally published in the Gazette. The range of rules qualifying as law should
not be too narrow.
(2) To qualify as a ‘law of general application’ a rule from one of these sources
must be accessible, precise and of general application. People should be able to
know of the law, and should be able to conform their conduct to the law. Laws
should apply generally, and should not target specific individuals.
This interpretation does not make the ‘law of general application’ requirement a
particularly exacting one. Almost any reasonably intelligible rule, emanating from a
source that is authorised to issue such a rule, will qualify. There is not even a
requirement that the rule must be promulgated or published. The only substantive
qualification is that the rule must be ‘general’ in that it must not single out specific
individuals for favourable or harsh treatment.
By contrast, Kriegler J held that the Presidential Act was not law of general
application. His reasons for doing so are tersely stated:
My colleague Mokgoro J has concluded that although the Act is in conflict with s 8, it is a
‘law of general application’ within the meaning of s 33(1) and is saved by its provisions. I
cannot agree with the second of those propositions and the third therefore does not arise. The
exercise by the President of the powers afforded by s 82(1)(k)—even in the general manner
he chose in this instance—does not make ‘law’, nor can it be said to be ‘of general
application’. The exercise of such power is non-recurrent and specific, intended to benefit
particular persons or classes of persons, to do so once only, and is given effect by an
executive order directed to specific state officials. I respectfully suggest that one cannot by a
process of linguistic interpretation fit such an executive/presidential/administrative decision
43
44
Ibid [104].
45
Mokgoro J’s judgment does not address the controversial issue of whether the internal orders or directives of
state agencies constitute law.
159
and order into the purview of s 33(1). That savings clause is not there for the preservation of
executive acts of government but to allow certain rules of law to be saved.46
According to Kriegler J the Presidential Act was not law because it was an ‘executive
order directed to specific state officials’. Moreover, it was not general in its application
in that it applied only to a specific case. To use Mokgoro J’s phrase, the Act targeted
specific individuals.
It seems that there is little disagreement between Kriegler J and Mokgoro J on the
criteria for ‘law of general application’. Rather, they disagree about whether the
Presidential Act conformed to those criteria.47 For Kriegler J, the Act was simply an
executive act of the government, an order made by the President and directed to the
government officials who would carry it out. The order did not have the character of
legislation and, moreover, is quite specific in its application and not general. This
means, according to Kriegler J, that the Presidential Act could not serve as a
legitimate restriction of the right to equality. However good the reasons may be for
the Presidential Act, it is not law of general application and cannot therefore limit a
fundamental right.
Both the judgment of Mokgoro J and Kriegler J are dissenting judgments and are
not the authoritative view of the Constitutional Court on the interpretation of the
‘law of general application’ requirement. The majority of the court expressed no
view on the issue. It is submitted that while Kriegler J’s view of the nature and
effect of the Presidential Act is preferable to that of Mokgoro J, neither interpretation
of the ‘law of general application’ requirement is exhaustive. Besides a requirement
that the rule has the character of law, that it derives from a source with lawful
authority to issue the rule, and a formal requirement that the law is clear, accessible
and precise, the rule must also apply generally in the sense of not being unequal or
arbitrary in its application. Equal application means that the rule must not apply
solely to an individual case, or must not restrict the rights only of a particular
individual or group of individuals.48 The rule must provide for parity of treatment:
like cases must be treated alike.
46
47
An important difference between the two judgments is that Kriegler J does answer the question whether
directives or guidelines issued by government departments or agencies but which are not officially published
delegated legislation are laws of general application. Such rules would not have the character of law. They would
be executive acts or orders addressed to governmental officials. According to Kriegler J, the limitation clause ‘is
not there for the preservation of executive acts of government but to allow certain rules of law to be saved’ (ibid
[76]). The implications of Kriegler J’s approach to this issue are illustrated by the facts of Soobramoney v
Minister of Health, KwaZulu-Natal 1998 (1) SA 765 (CC). The applicant alleged that his right not to be refused
emergency medical treatment in s 27(3) of the Constitution had been infringed by a state hospital. The hospital
acted in terms of policy guidelines drawn up by the provincial Department of Health that restricted dialysis
treatment to patients with curable kidney disorders and denied it to those with incurable disorders who were not
eligible for a kidney transplant. The Constitutional Court found that the hospital’s conduct was not an
infringement of the applicant’s rights. But had it found the opposite, the question whether the guidelines were a
law of general application would have had to be confronted. On Kriegler J’s approach, the guidelines would
probably have failed to qualify as law of general application. They lack the character of law, are addressed to
hospital officials only and regulate internal procedures in state hospitals.
48
An example of a law that fails to comply with this requirement can be found in Matinkinca v Council of
State, Republic of Ciskei 1994 (4) SA 472 (Ck). To prevent the prosecution of certain individuals on charges
arising from the Bisho massacre of 7 September 1992, the Ciskei Council of State enacted the Special Indemnity
Decree 7 of 1993. The Decree provided inter alia that ‘no criminal proceedings shall be instituted or brought in
any court against any person in respect of any act as herein defined done on 7 September 1992 at or near the city
of Bisho’. The Decree was found to be an interference with fundamental rights in that it made protection and
enforcement of rights that may have been violated by the events of the day unenforceable. The question of
160
A good illustration of both the equality and non-arbitrariness requirements is

provided by De Lille v Speaker of the National Assembly.49 The case concerned a
punitive suspension of a Member of Parliament by an ad hoc committee of the
National Assembly. The High Court held that the suspension was a violation of the
rights to freedom of expression, just administrative action and access to courts. The
violation was not justifiable under the limitation clause because it was not authorised
by law of general application. The rules and standing orders of Parliament did not
permit an ad hoc Committee to suspend a member, nor was there any statutory or
constitutional authority for the Committee’s actions. Instead, the suspension was
based on parliamentary privilege, in particular the privilege to punish a member for
contempt of Parliament. But, according to Hlophe J, parliamentary privilege does not
qualify as law of general application:
It is not codified or capable of ascertainment. Nor is it based on a clear system of precedent.
There is no guarantee of parity of treatment. It is essentially ad hoc jurisprudence which
applies unequally to different parties.50
(iii) Administrative action

While delegated legislation qualifies as a ‘law’ for purposes of the law of general
application requirement, administrative action taken under the authority of law
(ie, administrative conduct) does not in itself qualify as law of general application.51
However, the requirement that limitations of rights are authorised by law does not mean
that the legislature must perform every limitation itself. It is possible for a law to
authorise an administrator to exercise a discretionary power that has the effect of
limiting rights. However, an empowering law will lack the quality of general application
if it simply grants an administrator a wide and unconstrained discretion to limit rights.
Legislation conferring discretionary powers on administrative officials to limit rights
must place guidelines on the proper exercise of the discretion.
This is illustrated by Dawood v Minister of Home Affairs52 in which the
Constitutional Court considered the validity of s 25(9)(b) of the Aliens Control Act 96
of 1991. Section 25(9)(b) allowed spouses, dependent children and destitute, aged or
infirm family members of people lawfully and permanently resident in South Africa to
limitation then arose. Was the decree ‘of general application’ as required by the limitation provision of the Ciskei
Constitution? According to the court, the decree was ‘clearly only aimed at the incidents on 7 September 1992
and is not of general application in Ciskei. Furthermore, it is only the rights of persons detrimentally affected by
an act of the security services or demonstrators on 7 September 1992 that are affected, and not the rights of the
citizens of Ciskei at large’ (497B–E). It was therefore held that the Decree was not of general application and
therefore could not qualify as a legitimate limitation of fundamental rights. Another example is the military
decree that was the subject of Attorney-General of Lesotho v Swissbourgh Diamond Mines (Pty) Ltd 1997 (8)
BCLR 1122 (Lesotho CA). The decree purported to revoke five specified mining leases. Its purpose was to
prevent the holders of the leases from using them as a basis for an interdict stopping further work on the
construction of the Lesotho Highlands Water Project. The US Constitution specifically prohibits so-called bills of
attainder. These are laws designed to pick out specific named individuals or easily determinable members of a
group for punishment without judicial trial. Woolman & Botha (note 9 above) para 34.50.
49
50
Ibid [37].
51
Premier of Mpumalanga v Executive Committee of the Association of Governing Bodies of State-Aided
Schools: Eastern Transvaal 1999 (2) SA 91 (CC) [41] (a government decision to change a policy without first
consulting affected individuals not a law of general application; no lawful authority for infringement of right to
procedurally fair administrative action); City Council of Pretoria v Walker 1998 (2) SA 363 (CC) [82].
52
Dawood v Minister of Home Affairs 2000 (3) SA 936 (CC).
161
remain in South Africa pending the outcome of their application for an immigration
permit. All other applicants had to leave the country. The effect of s 25(9) read with
s 26(3) and (6) of the Act was that foreign spouses could continue to reside in South
Africa while their applications for immigration permits were being considered only if
they were in possession of valid temporary residence permits. Given that such
applications were not automatically granted but had to be considered on their merits,
these provisions necessarily authorised immigration officials and the Director General to
refuse to issue or extend such temporary permits. The effect of such a refusal was that a
South African married to a foreigner was forced to choose between going abroad with
his or her partner while the application was considered, or remaining in South Africa
alone. The court pointed out that many couples would not have the option of being
abroad together, because of poverty or other circumstances, and would be separated
during the period that the application was under consideration.53 The right to cohabit, a
key aspect of the marriage relationship and protected by the constitutional right to
dignity, was therefore limited by the statutory provisions that empowered immigration
officials to refuse to grant or extend a temporary permit.
Could the limitation be justified? The answer was no. The statutory provisions,
delegating as they did an unconstrained discretionary power allowing the limitation of
rights, failed to qualify as a law of general application:
It is an important principle of the rule of law that rules be stated in a clear and accessible
manner. It is because of this principle that section 36 requires that limitations of rights may
be justifiable only if they are authorised by a law of general application. Moreover, if broad
discretionary powers contain no express constraints, those who are affected by the exercise
of the broad discretionary powers will not know what is relevant to the exercise of those
powers or in what circumstances they are entitled to seek relief from an adverse decision. In
the absence of any clear statement to that effect in the legislation, it would not be obvious to
a potential applicant that the exercise of the discretion conferred upon the immigration
officials and the DG by sections 26(3) and (6) is constrained by the provisions of the Bill of
Rights, and in particular, what factors are relevant to the decision to refuse to grant or extend
a temporary permit. If rights are to be infringed without redress, the very purposes of the
Constitution are defeated.54
While it was conceivable that a legislative provision could have been framed justifiably
allowing the limitation of the right in certain circumstances, this was not done in the
Act. Legislation cannot simply leave it to an administrative official to determine when it
will be constitutionally justifiable to limit the right.55
(b) Reasonableness and justifiability in an open and democratic society

based on human dignity, equality and freedom
Put at its simplest, this part of the limitation test requires a law that restricts a
fundamental right to do so for reasons that are acceptable to an open and democratic
society based on human dignity, equality and freedom. In addition, the law must be
reasonable in the sense that it should not invade rights any further than it needs to in
53
Ibid [39].
54
Ibid [47].
55
There is a similar holding in Janse van Rensburg v Minister of Trade and Industry 2001 (1) SA 29 (CC) [25]
(legislation may grant a Minister powers that infringe the right to procedurally fair administrative action, but
must place constraints on their use).
162
order to achieve its purpose. To satisfy the limitation test then, it must be shown that the
law in question serves a constitutionally acceptable purpose and that there is sufficient
proportionality between the harm done by the law (the infringement of fundamental
rights) and the benefits it is designed to achieve (the purposes of the law).
(i) Proportionality
The Constitutional Court adopted the following approach to the application of the
general limitation clause in the interim Bill of Rights in S v Makwanyane:
The limitation of constitutional rights for a purpose that is reasonable and necessary in a
democratic society involves the weighing up of competing values, and ultimately an
assessment based on proportionality. This is implicit in the provisions of s 33(1) [IC]. The
fact that different rights have different implications for democracy, and in the case of our
Constitution, for ‘an open and democratic society based on freedom and equality’, means
that there is no absolute standard which can be laid down for determining reasonableness
and necessity. Principles can be established, but the application of those principles to
particular circumstances can only be done on a case-by-case basis. This is inherent in the
requirement of proportionality, which calls for the balancing of different interests. In the
balancing process, the relevant considerations will include the nature of the right that is
limited, and its importance to an open and democratic society based on freedom and
equality; the purpose for which the right is limited and the importance of that purpose to
such a society; the extent of the limitation, its efficacy, and particularly where the limitation
has to be necessary, whether the desired ends could reasonably be achieved through other
means less damaging to the right in question. In the process regard must be had to the
provisions of s 33(1) [IC], and the underlying values of the Constitution, bearing in mind
that, as a Canadian Judge has said, ‘the role of the Court is not to second-guess the wisdom
of policy choices made by legislators’.56
This paragraph in Makwanyane has become a standard reference when the
Constitutional Court considers the legitimacy of limitation.57 It was summarised as
follows in S v Bhulwana:58
In sum, therefore, the Court places the purpose, effects and importance of the infringing
legislation on one side of the scales and the nature and effect of the infringement caused by
the legislation on the other. The more substantial the inroad into fundamental rights, the
more persuasive the grounds of justification must be.59
Although the passage in Makwanyane is a description of the analysis to be undertaken
under s 33 of the interim Constitution, it applies with equal force to the interpretation of
s 36 of the 1996 Constitution. Section 36 contains a set of ‘relevant factors’ to be taken
into account by a court when considering the reasonableness and justifiability of a
limitation. These correspond exactly to the factors identified as making up the
proportionality enquiry in Makwanyane:
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
56
57
See, for example, S v Mbatha 1996 (2) SA 464 (CC) [14].
58
S v Bhulwana 1996 (1) SA 388 (CC).
59
Ibid [18]. There are many similar summaries in the case law. See, for example, Brümmer v Minister for
Social Development 2009 (6) SA 323 (CC) [59]. For a recent application of the test see Twee Jonge Gezellen
(Pty) Ltd v Land and Agricultural Development Bank of SA 2011 (3) SA 1 (CC).
163
(c) the nature and extent of the limitation;

(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.
There are a few additional aspects of the Makwanyane passage that are worth
emphasising. Chaskalson P recognises that a general limitation clause does not translate
into a standard limitation test. This means that the limitation test itself, and not merely
the application of the test, depends on the circumstances. In other words, the criteria of
reasonableness and justifiability do not always mean the same thing; their specific
implications depend on a variety of considerations. What are these considerations?
Chaskalson P refers to the nature of the right that is limited, and its importance to an
open and democratic society based on freedom and equality; the purpose for which the
right is limited and the importance of that purpose to such a society; the extent of the
limitation, its efficacy, and whether the desired ends could reasonably be achieved
through other means less damaging to the right in question. Finally, Chaskalson P
acknowledges that courts should defer to the legislature when policy choices are at
stake.
In the following five sub-sections of this chapter, the five factors specified by s 36
as relevant to the limitations enquiry are analysed in turn. To illustrate the practical
application of the factors in a concrete case, a summary of the treatment of each
factor in S v Makwanyane is provided. It must be emphasised that the five ‘relevant
factors’ are not an exhaustive catalogue of what must be considered in the limitation
enquiry, nor are they a checklist of requirements. They are simply indications as to
whether a limitation is reasonable and justifiable in an open and democratic society
based on human dignity, equality and freedom. Once a court has examined each of
the factors it must then weigh up what the factors have revealed about the purpose,
effects and importance of the infringing legislation on the one hand and the nature
and effect of the infringement caused by the legislation on the other.60
(ii) Section 36(1)(a): the nature of the right

The proportionality enquiry required by s 36 involves weighing up the harm done by a
law—the infringement of a fundamental right—against the benefits that the law seeks to
achieve—the reasons for the law, or the purpose of the law. Some rights weigh more
heavily than others. It will therefore be more difficult to justify the infringement of such
rights than other, less weighty rights. A court must assess what the importance of a
particular right is in the overall constitutional scheme. A right that is of particular
importance to the Constitution’s ambition to create an open and democratic society
based on human dignity, freedom and equality will carry a great deal of weight in the
exercise of balancing rights against justifications for their infringement.
60
S v Makwanyane (note 12 above) [104]; S v Manamela 2000 (3) SA 1 (CC) [32].
164
Example: S v Makwanyane
S v Makwanyane was concerned with the constitutionality of the death
penalty. The court held that the death penalty infringed the rights to life,
to human dignity and to freedom from cruel, inhuman or degrading pun-
ishment. This meant that for the death penalty to be constitutional it
would have to qualify as a reasonable and justifiable limitation of these
three rights.61 The purposes of the death penalty, the benefits it was
designed to achieve would have to be balanced against the harm it
did—the violation of the three rights. The first consideration in this bal-
ancing exercise was the determination of the weight of the three rights,
their importance in an open and democratic society based on freedom
and equality.
According to the Constitutional Court the ‘rights to life and dignity are
the most important of all human rights, and the source of all other per-
sonal rights in . . . [the Bill of Rights]. By committing ourselves to a soci-
ety founded on the recognition of human rights we are required to value
these two rights above all others. And this must be demonstrated by the
State in everything that it does, including the way it punishes crimi-
nals.’62 This meant that very compelling reasons would have to be found
to justify the limitation of such important rights.63 As for the freedom
from cruel, inhuman or degrading punishment, this right is a component
of the overall protection of human dignity and the associated protection
of physical integrity. Given the importance of human dignity in the con-
stitutional scheme, its cruel punishment component carries no less
weight.
61
The infringements had to be justifiable in terms of the limitation clause of the interim Constitution, s 33.
There are three differences between this clause and s 36. First, limitations had to be justifiable in ‘an open and
democratic society based on freedom and equality’. Secondly, limitations could not ‘negate the essential content
of the right’ (this meant that though a right could be limited it could not be taken away altogether). Thirdly,
certain rights in the Bill of Rights received additional protection against limitation by a requirement that any
infringement of these rights had to be necessary in addition to being reasonable and justifiable.
62
S v Makwanyane (note 12 above) [144] (Chaskalson P). See also O’Regan J at [326]–[327]: ‘The right to life
is, in one sense, antecedent to all the other rights in the Constitution. Without life in the sense of existence, it
would not be possible to exercise rights or to be the bearer of them. But the right to life was included in the
Constitution not simply to enshrine the right to existence. It is not life as mere organic matter that the
Constitution cherishes, but the right to human life: the right to live as a human being, to be part of a broader
community, to share in the experience of humanity. This concept of human life is at the centre of our
constitutional values. The constitution seeks to establish a society where the individual value of each member of
the community is recognised and treasured. The right to life is central to such a society. . . . The right to life, thus
understood, incorporates the right to dignity. So the rights to human dignity and life are entwined. The right to
life is more than existence, it is a right to be treated as a human being with dignity: without dignity, human life is
substantially diminished. Without life, there cannot be dignity.’
63
Even though the rights to life and human dignity carry a great deal of weight in the Bill of Rights this is not
to say that they could never be limited. The law recognises, for example, that the right to life can be justifiably
limited in the case of self-defence. But, given the importance of the right, killing in self-defence is justified only
in cases of necessity, ie as a matter of last resort where no other less severe alternative exists for the victim. See
Ex parte Minister of Safety and Security: in re S v Walters 2002 (4) SA 613 (CC) (principles bearing on the use of
lethal force to arrest fleeing suspect). As for the right to dignity, the Constitutional Court noted in S v
Makwanyane (note 12 above) [142]–[143] that ‘Dignity is inevitably impaired by imprisonment or any other
punishment, and the undoubted power of the State to impose punishment as part of the criminal justice system
165
(iii) Section 36(1)(b): the importance of the purpose of the limitation

At a minimum, reasonableness requires the limitation of a right to serve some purpose.
Justifiability requires that purpose to be one that is worthwhile and important in a
constitutional democracy.64 A limitation of rights that serves a purpose that does not
contribute to an open and democratic society based on human dignity, equality and
freedom cannot therefore be justifiable.
The Constitutional Court held that the death penalty violated three very
important rights: the rights to life, human dignity and freedom from cruel
punishment. To justify the infringement of these rights the state had to
show that the death penalty served purposes that an open and demo-
cratic society based on freedom and equality would consider worthwhile
and important. According to the state, the death penalty served three
purposes that could not be adequately served by other forms of punish-
ment. First, it served as a deterrent to violent crime: the prospect of
such a severe punishment would deter someone who, for example, was
contemplating committing a murder. Secondly, it served to prevent the
recurrence of violent crime: an executed murderer will not murder again.
Thirdly, the death penalty served as fitting retribution for violent crimes.
Are these purposes important to an open and democratic society based
on freedom and equality? Certainly the deterrence of violent crime is an
important purpose which can be used to justify the limitation of rights:
‘The need for a strong deterrent to violent crime is an end the validity of
which is not open to question. The State is clearly entitled, indeed
obliged, to take action to protect human life against violation by oth-
ers.’65 The same obviously goes for the purpose of preventing the recur-
rence of violent crime. But the third purpose of the death penalty, retri-
bution, was not considered to be a purpose fitting the type of society
that the Constitution wished South Africa to be. The Constitution envis-
aged a society based on values of reconciliation and ubuntu and not
vengeance and retaliation: ‘retribution smacks too much of vengeance
to be accepted, either on its own or in combination with other aims, as a
worthy purpose of punishment in the enlightened society to which we
South Africans have now committed ourselves’.66
A limiting measure must serve a purpose that all reasonable citizens would agree to be
compellingly important. For this reason, the purpose of protecting the personal morality
necessarily involves the power to encroach upon a prisoner’s dignity’. To be justifiable, such encroachments must
however be kept to a minimum: ‘A prisoner is not stripped naked, bound, gagged and chained to his or her cell.’
64
The absence of a legitimate purpose for a limitation means that limitation is unjustifiable. See Richter
v Minister of Home Affairs 2009 (3) SA 615 (CC) [36]. The court also holds ([22]) that it is permissible to look at
statements made in Parliament at the time of enactment for evidence of its purpose. See also Centre for Child
Law v Minister for Justice and Constitutional Development 2009 (6) SA 632 (CC) [52].
65
S v Makwanyane (note 12 above) [117] (Chaskalson P).
66
Ibid [185] (Didcott J).
166
of a sector of society will not qualify as a justification for the limitation of rights.67
Which purposes do qualify as sufficiently important? A rapid survey of the
Constitutional Court jurisprudence indicates that the court has considered the following
as legitimate purposes in the context of limitations analysis:
(1) Protecting the administration of justice at its broadest.68 Specifically, the court has
condoned as legitimate purposes for the limitation of rights the prevention of the
intimidation of witnesses, the disclosure of state secrets or the identity of
informers;69 the screening out of appeals that had no merit or hope of success;70 the
recovery of assets of a company for the benefit of its creditors;71 the protection of
the interests of creditors of an insolvent estate;72 the protection of the state’s
interests and avoidance of logistical difficulties when the state is sued in civil
actions;73 the enforcement of court orders; 74 ensuring the attendance of accused
persons in court.75
(2) The prevention, detection, investigation and prosecution of crime generally,76
specifically the prohibition of the abuse of illegal drugs, particularly those that
can cause severe damage to the user or that are addictive.77
(3) Reduction of unemployment among South African citizens.78
(4) Inspection and regulation of the multiple health undertakings in modern society
which impact on the welfare and general well-being of the community.79
(5) Protection of the rights of others.80
(7) Compliance with constitutional obligations.81
67
Note 14 above [37].
68
S v Singo 2002 (4) SA 858 (CC) [33]: ‘essential that courts be equipped with the power to deal effectively
with any conduct that threatens the smooth running of the administration of justice’.
69
Shabalala v Attorney-General (Transvaal) 1996 (1) SA 725 (CC) [52].
70
S v Ntuli 1996 (1) SA 1207 (CC) [24].
71
Ferreira v Levin NO 1996 (1) SA 984 (CC) [126].
72
Brink v Kitshoff 1996 (4) SA 197 (CC) [47]; Harksen v Lane NO 1998 (1) SA 300 (CC) [102].
73
Mohlomi v Minister of Defence 1997 (1) SA 124 (CC) [16]–[17].
74
Coetzee v Government of the Republic of South Africa 1995 (4) SA 631 (CC) [12].
75
S v Singo (note 68 above) [33].
76
S v Mbatha (note 57 above) [16]; S v Manamela (note 60 above) [27].
77
S v Bhulwana 1996 (1) SA 388 (CC) [20]; Prince 2001 (2) SA 388 (CC) [52].
78
Larbi-Odam (note 26 above) [30].
79
Mistry v Interim National Medical and Dental Council of South Africa 1998 (4) SA 1127 (CC).
80
See, for example, Beinash v Ernst & Young 1999 (2) SA 91 (CC) in which the Constitutional Court upheld
the provisions of the Vexatious Proceedings Act 3 of 1956 which allow a court to declare someone a vexatious
litigant, thereby preventing them from instituting proceedings in any court without the leave of that court.
Although a limitation of a vexatious litigant’s right of access to court in s 34, the Act had the important purpose
of protecting the right of access to court of other litigants with meritorious disputes. See also Govender v Minister
of Safety and Security 2001 (4) SA 273 (SCA); Walters (note 63 above) [39] (limitation of right to life, dignity
and physical integrity of fleeing suspect justifiable to protect police officers and members of the public from
immediate harm or to arrest person reasonably suspected of having committed a crime involving the infliction or
threatened infliction of serious bodily harm); De Reuck v Director of Public Prosecutions (Witwatersrand Local
Division) 2004 (1) SA 406 (CC) (limitation of freedom of expression and privacy by prohibition of possession
and distribution of child pornography justified to protect rights of children).
81
For example, s 200(1) of the Constitution provides that the South African National Defence Force ‘must be
structured and managed as a disciplined military force’. Legislation prohibiting military personnel from forming
and joining trade unions in the interests of maintaining discipline would have the legitimate purpose of
complying with this obligation: South African National Defence Force Union v Minister of Defence 1999 (4) SA
469 (CC). The Constitutional Court held that the prohibition in s 126B(1) of the Defence Act 44 of 1957
nevertheless failed the limitation test because there was no evident relationship between the limitation (a blanket
ban on forming and joining any type of trade union) and its purpose (promoting the discipline and efficiency of
167
(8) Promoting healing of the divisions of the past and the building of a united
society.82
(9) Complying with South Africa’s international obligations.83
(10) Preventing people from gaining entry to the country illegally.84
(iv) Section 36(1)(c): the nature and extent of the limitation

This factor requires the court to assess the way in which the limitation affects the right
concerned. Is the limitation a serious or relatively minor infringement of the right? This
assessment is a necessary part of the proportionality enquiry because proportionality
means that the infringement of rights should not be more extensive than is warranted by
the purpose that the limitation seeks to achieve. A law that limits rights should not use a
sledgehammer to crack a nut.85 To determine whether the limitation does more damage
to rights than is reasonable for achieving its purpose first requires an assessment of how
extensive the infringement is.86
The State argued that the death penalty served the purposes of deter-
rence and prevention of recurrence of violent crime and was fitting retri-
bution for such crimes. The court considered the first two purposes to be
worthwhile but not the third. The proportionality enquiry then required
the Constitutional Court to assess whether there was proportionality
between the harm done by the death penalty (the infringement of the
rights to life, human dignity and freedom from cruel punishment) and the
purposes it sought to achieve (deterrence and prevention). If the harm is
disproportionate to the benefits, the limitation is not justifiable. To
assess proportionality the court must first assess the degree of harm:
how seriously does the death penalty impact on the rights identified?
the Defence Force). See also Christian Education (note 11 above) [40] (state under constitutional duty to
diminish public and private violence in society and protect particularly children from maltreatment, abuse or
degradation); Islamic Unity Convention (note 34 above) [45] (constitutional duty to regulate broadcasting
justifies restrictions on free speech).
82
Islamic Unity Convention (note 34 above) [45].
83
Prince (note 77 above) [52] and [72] (international obligations on the suppression of drug trafficking
sufficiently important to justify measures impacting on use of dagga for religious purposes).
84
85
S v Manamela (note 60 above) [34].
86
It is the effect of the limitation on rights and not the effect of the limitation on a particular right-holder that
is of concern to this part of the analysis. This is illustrated by S v Meaker (note 19 above) in which the State
argued that the consequences of the application of a reverse onus presumption in traffic legislation were trivial,
usually entailing payment of a fine for a speeding or parking violation. According to Cameron J, this was
irrelevant to the assessment of the ‘nature and extent’ of the limitation required by s 36(c). It was the ‘nature and
extent’ of the infringement of the presumption of innocence that had to be assessed. Notwithstanding the
relatively minor penalties following a conviction obtained with the aid of the presumption the limitation was
extensive. ‘It trenches directly on the vehicle owner’s rights whenever the vehicle is involved in the commission
of an offence on a public road’ (1054E–G). Similarly, in the Islamic Unity Convention case (note 34 above) [49]
the court dismissed a contention that the impact of a limitation of free speech in a broadcasting code of conduct
was minimal because broadcasters were free to ‘opt out’ of the code by adopting their own code of regulation.
The code had the effect of limiting rights in an objective sense and the fact that a particular broadcaster could
chose to opt out of being bound by the code was immaterial.
168
The court found that the death penalty had grave and irreparable
effects on the rights concerned. The inroads that it made on the rights to
life, dignity and freedom from cruel punishment could not be more
severe. In the words of a US Supreme Court judgment cited by the Con-
stitutional Court: ‘The penalty of death differs from all other forms of
criminal punishment, not in degree but in kind. It is unique in its total
irrevocability. It is unique in its rejection of rehabilitation of the convict as
a basic purpose of criminal justice. And it is unique, finally, in its abso-
lute renunciation of all that is embodied in our concept of humanity.’87
(v) Section 36(1)(d): the relation between the limitation and its purpose
To serve as a legitimate limitation of a right, a law that infringes the right must be
reasonable and justifiable. This means, put at its simplest, that there must be a good
reason for the infringement. It also means that there must be proportionality between the
harm done by the infringement and the beneficial purpose that the law is meant to
achieve. Logically, this requires there to be a causal connection between the law and its
purpose: the law must tend to serve the purpose that it is designed to serve. If the law
does not serve the purpose it is designed to serve at all it cannot be a reasonable
limitation of the right. If the law only marginally contributes to achieving its purpose it
cannot be an adequate justification for an infringement of fundamental rights.
According to the State the death penalty was designed to serve the pur-
poses of deterrence and prevention of violent crime. Both purposes
were considered by the court to be legitimate justifications for the
infringement of the rights to life, dignity and freedom from cruel punish-
ment. (Retribution, the third purpose relied on by the State, was not con-
sidered a suitable justification.) Assessing the reasonableness of the
limitation then required the court to determine whether there was a ratio-
nal connection between the ends of deterrence and prevention and the
means chosen to achieve these ends. In other words, did the death pen-
alty (the means) serve to deter and prevent the recurrence of violent
crime (the ends)? If so, to what extent did it do so?
Certainly, the death penalty effectively ensures that criminals will
never again commit the violent crimes for which they were executed.
There is therefore undoubtedly a rational connection between means
and ends (or the limitation and its purpose) in this case. The same can-
not be said for the purpose of deterrence however. Determining whether
87
Furman v Georgia 408 US 238 (1972) 306 (Stewart J). Cited in S v Makwanyane (note 12 above) [236]
(Langa J).
169
an infringement of rights is justifiable is a factual enquiry. Therefore if

the state wished to show that the death penalty deters violent crime it
would have to adduce evidence in support of this contention. According
to the Constitutional Court, there was no satisfactory evidence establish-
ing a connection between the death penalty and a reduction in the inci-
dence of violent crime. According to Didcott J: ‘The protagonists of capi-
tal punishment bear the burden of satisfying us that it is permissible
under s 33(1) [IC]. To the extent that their case depends upon the
uniquely deterrent effect attributed to it, they must therefore convince us
that it indeed serves such a purpose. Nothing less is expected from
them in any event when human lives are at stake, lives which may not
continue to be destroyed on the mere possibility that some good will
come of it. In that task they have failed and, as far as one can see,
could never have succeeded.’88
(vi) Section 36(1)(e): less restrictive means to achieve the purpose

To be legitimate, a limitation of a fundamental right must achieve benefits that are in
proportion to the costs of the limitation. The limitation will not be proportionate if other
means could be employed to achieve the same ends that will either not restrict rights at
all, or will not restrict them to the same extent. If a less restrictive (but equally effective)
alternative method exists to achieve the purpose of the limitation, then that less
restrictive method must be preferred. Note that in assessing the effectiveness of
alternative methods a margin of discretion is given to the state: ‘the role of the Court is
not to second-guess the wisdom of policy choices made by legislators’.
The purposes of the death penalty are deterrence and prevention of vio-
lent crime. But in the course of achieving these ends, the death penalty
imposes considerable costs: grave and irreparable violations of the
rights to life, dignity and freedom from cruel punishment. Where other
methods of achieving these purposes exist that do not impose the same
costs, it becomes difficult to claim that the method chosen is reasonable
and justifiable. According to the Constitutional Court the goal of deter-
rence of violent crime could be as well served by a sentence of impris-
onment for a long period or for life. Such a punishment would also be an
infringement of rights but would not be nearly as extensive an infringe-
ment as the death penalty. In the absence of any evidence that the
death penalty serves the purpose of deterrence more effectively than a
88
170
sentence of imprisonment, it is the latter, less restrictive method of

achieving the purpose that must be preferred. The same goes for the
purpose of prevention of recurrence. Life imprisonment will serve this
purpose. Given the drastic effects of the death penalty, if a far less
restrictive means of achieving the same purpose is available it should
be preferred.89
Although the proportionality analysis must notionally be conducted with reference to all
the factors, it is factor (e) on which most limitation arguments will stand or fall. A law
that invades rights more than is necessary to achieve its purpose is evidently
disproportionate or, to use the term routinely employed in the jurisprudence,
‘overbroad’. Legislation must be, to use some of the other metaphors used by the courts,
‘narrowly tailored’ and must not ‘cast the net too widely’. A few examples of
overbreadth will serve to make the point:
• To achieve the purpose of controlling the harmful side-effects of liquor consumption
there is no need to prohibit anyone ‘who is not clothed or not properly clothed’ from
performing in ‘entertainment of any nature’ on premises where liquor is served. The
prohibition nets not only striptease bars but also bona fide artistic entertainment such
as theatre performances and is therefore an unnecessary limitation of the freedom of
expression.90
• To achieve the purpose of controlling the market in dangerous drugs is a blanket
prohibition on possession of dagga necessary? The prohibition infringes the freedom
of religion of Rastafarians and would have been overbroad if an exception for
religious use (along the lines of that for medical use) had been practically feasible.91
• To achieve the purpose of a disciplined and non-partisan Defence Force it is not
necessary to prohibit all Defence Force personnel from performing any ‘act of
public protest’. The prohibition is so wide that it prevents legitimate acts of free
speech that have nothing to do with the discipline of the force: ‘Members of the
Defence Force are prevented, whether they are in uniform or not, or whether they are
on duty or not, from taking any action at all to support or oppose almost any purpose
or object’.92
(c) The s 36 enquiry in a nutshell

Once it is established that a law of general application infringes a right protected by the
Bill of Rights, the State or the person relying on the law may argue that the infringement
constitutes a legitimate limitation of the right. Rights are not absolute. They may be
infringed, but only when the infringement is for a compellingly good reason. A
89
Ibid [123], [128] (Chaskalson P).
90
Phillips (note 20 above).
91
Prince (note 77 above). The majority of the Constitutional Court thought an exception was not feasible since
it would be difficult to police and would undermine the general prohibition. See [141]. According to the minority
([83]), ‘The constitutional defect in the two statutes is that they are overbroad. They are not carefully tailored to
constitute a minimal intrusion upon the right to freedom of religion and they are disproportionate to their
purpose. They are constitutionally bad because they do not allow for the religious use of cannabis that is not
necessarily harmful and that can be controlled effectively.’
92
South African National Defence Union v Minister of Defence 1999 (4) SA 469 (CC) [11].
171
compellingly good reason is that the infringement serves a purpose that is considered
legitimate by all reasonable citizens in a constitutional democracy that values human
dignity, equality and freedom above all other considerations.93 The infringement must
however not impose costs that are disproportionate to the benefits that it obtains. This
will be the case where a law infringes rights that are of great importance in the
constitutional scheme in the name of achieving benefits that are of comparatively less
importance. It will also be the case where the law does unnecessary damage to
fundamental rights, damage which could be avoided or minimised by using other means
to achieve the same purpose.
7.3 SECTION 36(2): LIMITATION OF RIGHTS BY OTHER PROVISIONS OF THE

CONSTITUTION
Section 36(2) states, superfluously, that only laws conforming to the test for valid
limitations in s 36(1) can legitimately restrict rights. However, the subsection adds that
rights can be justifiably limited in terms of ‘any other provision of the Constitution’.
The predecessor of s 36(2)—s 33(2) of the interim Constitution—was the basis for
the Constitutional Court’s decision in Azanian Peoples Organisation (AZAPO) v
President of the Republic of South Africa.94 The case concerned the Promotion of
National Unity and Reconciliation Act 34 of 1995, which allowed amnesty to be granted
to perpetrators of gross violations of human rights committed with a political objective.
Section 20(7) of the Act provides that a person granted amnesty shall not be criminally
or civilly liable in respect of the acts for which they have received amnesty. The
applicants attacked s 20(7) as inconsistent with the right of access to court.95 The
Constitutional Court acknowledged that there would be considerable force in the
argument that the section violated the access right,96 but for the existence of s 33(2) and
the postamble of the interim Constitution (‘National Unity and Reconciliation’) which
deals with amnesty. The postamble specifically authorised a law conferring amnesty on
a wrongdoer in respect of acts, omissions and offences associated with political
objectives and committed between 1960 and 1993. This permitted the National Unity
Act to limit the right of access to court.
In general however, courts will be reluctant to assume that provisions in the
Constitution are contradictory and will, if possible, construe apparently conflicting
93
According to Denise Meyerson ‘the reasons supplied by the state for limiting a constitutionally protected
right have to be such as to elicit the agreement of all reasonable citizens who matter equally . . . it may not appeal
to a justification whose normative force depends on an intractably disputed point of view or way of reasoning’.
Meyerson (note 3 above) 17. There is some support for this conclusion in the Constitutional Court’s approach to
justifications of restrictions on homosexuality in National Coalition (note 14 above) [37]–[38]. The court’s
rejection of moral or religious-based justifications for the restrictions is arguably motivated by the intractably
disputed or controversial nature of those justifications.
94
Azanian Peoples Organisation (AZAPO) v President of the Republic of South Africa 1996 (4) SA 671 (CC).
Section 33(2) of the interim Constitution read: ‘Save as provided for in subsection (1) or any other provision of
this Constitution, no law, whether a rule of common law, customary law or legislation shall limit any right
entrenched in this Chapter’.
95
96
AZAPO (note 94 above) [10].
172
Limitation of Rights 7.3–7.4
provisions in such a way as to harmonise them with one another.97 In S v Rens,98 for
example, the applicant argued that the requirement in s 316 of the Criminal Procedure
Act that leave to appeal must be obtained was in conflict with s 25(3)(h) of the interim
Constitution which provided a ‘right to have recourse by way of appeal or review to a
higher court than the court of first instance’. It was argued by the State that s 102(11) of
the interim Constitution specifically authorised the imposition of leave to appeal
requirements and that this disposed of the applicant’s argument in terms of s 25(3)(h) of
the interim Constitution.99 Madala J held that s 102(11) could be interpreted to refer
merely to appeals in constitutional matters and not to appeals in ordinary criminal cases.
In addition, since s 102(11) was permissive and not mandatory, it should not be
interpreted as authorising procedures that were limitations on the right to appeal
entrenched in the Bill of Rights.100
7.4 DEMARCATIONS OF RIGHTS AND SPECIAL LIMITATION CLAUSES

Most of the rights in the Bill of Rights are textually unqualified. For example, s 11
provides simply that ‘everyone has the right to life’. The scope of the right is unqualified
and the only limitations that are placed on the right are those imposed by the general
limitation section—s 36. A few rights however are qualified by language that
specifically demarcates their scope. Such qualifications can be termed demarcations of
that right.101 Their purpose is definitional: defining the scope of the right more precisely
than is the case with the textually unqualified rights.102 The Bill of Rights contains
numerous demarcations. For example, s 17 protects the right to assemble as long as the
assembly takes place ‘peacefully and unarmed’. Section 16(1) states that everyone has
the right to freedom of expression but s 16(2) provides, amongst other things, that the
right does not extend to ‘advocacy of hatred that is based on race, ethnicity, gender or
religion, and that constitutes incitement to cause harm’. Section 31(2) provides that the
rights of cultural, religious or linguistic communities cannot be exercised in a manner
inconsistent with any provision of the Bill of Rights.103 In terms of s 32, access to
information held by private individuals is possible only in so far as such information is
required for the exercise or protection of a person’s rights.
97
United Democratic Movement v President of the Republic of South Africa (No 2) 2003 (1) SA 495 (CC) [12],
though dealing with amendments to the Constitution, can be taken to state as a general principle of constitutional
interpretation that the Constitution must be read as a whole and its provisions interpreted in harmony with one
another.
98
S v Rens 1996 (1) SA 1218 (CC).
99
Section 102(11) of the interim Constitution dealt with the jurisdiction of the courts and provided that
legislation and rules of court ‘may provide that leave of the court from which the appeal is brought, or to which
the appeal is noted, shall be required as a condition for such appeal’.
100
S v Rens (note 98 above) [16]–[17].
101
They are sometimes also called ‘internal modifiers’. Woolman & Botha (note 9 above) para 34.4 and
para 34.5.
102
Islamic Unity Convention (note 34 above) [32] (purpose of s 16(2) is definitional, acknowledging that some
forms of expression do not qualify for constitutional protection).
103
In Christian Education (note 11 above) [26] the court held that ‘these explicit qualifications’ of the s 31
rights have a double purpose: ‘The first is to prevent protected associational rights of members of communities
from being used to ‘‘privatise’’ constitutionally offensive group practices and thereby immunise them from
external legislative regulation or judicial control. This would be particularly important in relation to practices
previously associated with the abuse of the notion of pluralism to achieve exclusivity, privilege and domination.
The second relates to oppressive features of internal relationships primarily within the communities concerned
. . .’.
173
Demarcations have received very little judicial attention. How do demarcations fit
into the two-stage approach to rights and limitation analysis that has been outlined
above? In most instances the demarcations will come into play when the nature and
scope of the right in question is determined. Demarcations circumscribe the right or
place certain conditions on its availability. The right to assemble is, for example,
protected on the condition that the assembly is peaceful and unarmed. The condition
demarcates the right and in terms of the two-stage analysis, it is a first-stage matter to
determine whether the applicant’s conduct falls within the demarcated scope of the
right. In other words, an applicant alleging that his or her right to assembly has been
violated will have to show that the assembly in question was peaceful and unarmed.104
Other textual qualifications of rights create special criteria for the limitation of certain
rights by the legislature. These are more properly called special limitations. Engaging in
any form of limitation analysis, whether in terms of the criteria laid down in s 36 or in
terms of the special criteria attached to some of the rights, assumes that an infringement
of a right has been proved. This means that reliance on a special limitation clause is a
second-stage matter. At the first stage the person relying on the right has to show that an
infringement has taken place. Once shown, at the second stage the state or the person
relying on the validity of the legislation must show that the limitation of the right is
justified either by reference to a special limitation clause or the general criteria of s 36.
There are special limitation clauses in s 15(3) (allowing legislation dealing with
marriages and personal and family law systems), the second sentence of s 22 (allowing
regulation of the practice of a trade, profession or law), s 23(5) and (6) (allowing labour
relations legislation to regulate collective bargaining), and s 29(4) (allowing state
subsidies for independent schools).105 Section 33(3)(c), which requires the legislation
giving effect to the rights to just administrative action to ‘promote an efficient
administration’, is also arguably a special limitation provision.106 These are special
limitations rather than demarcations because they do not relate to the applicant’s activity
and whether it falls within the scope of activity protected by a right in the Bill of Rights.
Rather it relates to the state’s conduct and to the means employed and objectives
pursued by the state to protect, promote and fulfil the rights in the Bill of Rights. Thus,
the burden of showing whether law or conduct is justified by a special limitation
provision is on the party seeking to uphold the law or conduct and not on the applicant.
104
A generous interpretation is necessary to ensure that if some members of an assembly resort to violence,
while the majority of the participants remain peaceful, the assembly remains protected. See the discussion in para
17.3(i) in Chapter 17 below and SATAWU v Garvas 2013 (1) SA 83 (CC) [53] (an individual does not cease to
hold the right to peaceful assembly as a result of sporadic violence committed by others in the course of the
demonstration if the individual in question remains peaceful in their intentions and behaviour).
105
The provision dealing with affirmative action (s 9(2)) is no longer a special limitation as it was in the
interim Constitution. It is now positively framed so as to make clear that an affirmative action programme does
not constitute a limitation of the right to equality, but is a component part of the right itself.
106
The arguments for and against treating s 33(3)(c) as a special limitation clause are outlined in Currie
Promotion of Administrative Justice Act [2.15]–[2.17]. Woolman & Botha (note 9 above) 34–32 consider the
positive components of the socio-economic rights (ss 26(2) and 27(2)) as internal limitations. Liebenberg
Socio-Economic Rights 199 treats them as ‘defining the content and scope of the relevant rights’ and thus more
like modifiers.
174
The limitation section must further be distinguished from the derogation or

suspension section of the Bill of Rights: s 37. The latter applies only in times of public
emergency and allows for the temporary suspension of some of the Chapter 2 rights in
certain circumstances. A limitation clause, on the other hand, is continuously applicable.
Even when a state of emergency is declared, s 36 will continue to apply for the
limitation of those rights that have not been temporarily suspended.107
107
On the suspension of rights during states of emergency, see Chapter 33 below.
175
Chapter Eight
Remedies
8.1 Constitutional remedies and the other stages of Bill of Rights
litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177
(a) Constitutional remedies and the application of the Bill of Rights. 177
(b) Remedies and standing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178
(c) Remedies and jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178
(d) Remedies, interpretation and limitation. . . . . . . . . . . . . . . . . . . . . . . . . . . 179
8.2 The difference between invalidity of unconstitutional law or conduct
and constitutional remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179
8.3 ‘Appropriate relief’ and the flexible approach to constitutional
remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180
8.4 The purpose of constitutional remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181
8.5 Other factors relevant to the award of constitutional remedies . . . . . . . 181
8.6 The constitutional remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
(a) Declarations of invalidity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
(i) General principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
(ii) Controlling the impact of a declaration of invalidity . . . . . . . . 185
(aa) Severance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185
(bb) Reading-in of words . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187
(cc) Controlling the retrospective effect of orders of
invalidity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189
(dd) Suspension of orders of invalidity . . . . . . . . . . . . . . . . . . . . 192
(b) Declarations of rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195
(c) Interdictory relief. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197
(i) Interim relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198
(ii) Final interdicts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198
(iii) Structural interdicts and similar relief . . . . . . . . . . . . . . . . . . . . . . . 199
(d) Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200
(i) General principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201
(ii) Indirect application and the development of new damages
claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203
(iii) Damages claims derived directly from the Constitution . . . . . 203
8.7 Other forms of relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205
(a) Contempt of court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205
(b) Exclusion of evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206
(c) Administrative law and labour law remedies . . . . . . . . . . . . . . . . . . . . . 206
8.8 Remedies for private violations of rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207
176
Remedies 8.1
Enforcement of rights
38. Anyone listed in this section has the right to approach a
competent court, alleging that a right in the Bill of Rights has been
infringed or threatened, and the court may grant appropriate relief,
including a declaration of rights. . . .
Powers of courts in constitutional matters

172. (1) When deciding a constitutional matter within its power, a
court—
(a) must declare that any law or conduct that is inconsistent with the
Constitution is invalid to the extent of the inconsistency; and
(b) may make any order that is just and equitable, including—
(i) an order limiting the retrospective effect of the declaration of
invalidity; and
(ii) an order suspending the declaration of invalidity for any period
and on any conditions, to allow the competent authority to
correct the defect.
Application
8. . . .
(3) When applying a provision of the Bill of Rights to a natural or
juristic person in terms of subsection (2), a court—
(a) in order to give effect to a right in the Bill, must apply, or if
necessary develop, the common law to the extent that legislation
does not give effect to that right; and
(b) may develop rules of the common law to limit the right, provided
that the limitation is in accordance with section 36(1).
Interpretation of Bill of Rights

39. . . .
8.1 CONSTITUTIONAL REMEDIES AND THE OTHER STAGES OF BILL OF RIGHTS

LITIGATION
(a) Constitutional remedies and the application of the Bill of Rights

The indirect application of the Bill of Rights (the reading down of legislation and
development of the common law) has been discussed in Chapter 3 above. In this
chapter, we focus on constitutional remedies: the remedies flowing from a direct
application of the Bill of Rights to law and conduct and governed by ss 8, 38 and 172 of
the Constitution. Section 38 provides, in very general terms, that a court may grant
177
‘appropriate’ relief for the violation or threat to fundamental rights whilst s 172 allows a
court to make any order which is ‘just and equitable’ in constitutional matters. On the
basis of this wide mandate, the courts have developed existing common-law remedies
and have created new remedies to vindicate constitutional rights and to remedy their
infringement.
(b) Remedies and standing

To have standing, an applicant must not only allege that a fundamental right is violated
or threatened, but must also allege that he or she (or another category of persons listed in
s 38) has a sufficient interest in the remedy sought. The ‘sufficiency’ of the interest is
assessed with reference to the remedy sought. However, as was discussed in Chapter 4
above, the courts have adopted a broad approach to standing and the requirement of
sufficient interest has not, in practice, proved to be a significant obstacle for applicants.
(c) Remedies and jurisdiction

The availability of constitutional remedies is a matter of jurisdiction. As we saw in
Chapter 5 above, the Constitution limits the subject-matter competence and the remedial
competence of some courts.1 Also, the magistrates’ courts and statutory tribunals remain
‘creatures of statute’ in the sense that they derive their jurisdiction to grant remedies
from enabling legislation and have no inherent jurisdiction. This meant that, until
recently, magistrates’ courts had little jurisdiction to apply the Bill of Rights outside the
area of criminal law and criminal procedure. The situation has changed somewhat with
the establishment of equality courts (a form of magistrates’ court) by the Promotion of
Equality of Prohibition of Unfair Discrimination Act 4 of 2000, which envisages an
important role for the magistrates in equality disputes outside the employment
relationship.2 A similar role is envisaged for magistrates in administrative justice
disputes.3
The Promotion of Administrative Justice Act has extended the territorial jurisdiction
of the High Court considerably by defining a ‘court’ to include the High Court within
whose area of jurisdiction the party whose rights have been affected is domiciled or
ordinarily resident or the adverse effect of the administrative action was or will be
experienced. This means, for example, that a company domiciled in KwaZulu-Natal can
sue the City of Johannesburg in Durban, if the company unsuccessfully tendered for
work to be done in Johannesburg.
1
On subject-matter competence see, for example, s 170 (magistrates’ courts may not enquire into the validity
of legislation or conduct of the President); s 167 (granting exclusive jurisdiction to the Constitutional Court in
respect of certain constitutional matters). On remedial competence, see s 172(2) (order of High Court or Supreme
Court of Appeal order invalidating Act of Parliament, provincial Act or conduct of the President has no force and
effect until confirmed by Constitutional Court).
2
See Chapter 4 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000.
3
The definition of ‘court’ in s 1 of the Promotion of Administrative Justice Act 3 of 2000 allows the Minister
of Justice to designate specific magistrates’ courts and specific magistrates to hear review cases under the PAJA.
At the time of writing, no magistrates have been designated. In addition, the definition of ‘tribunal’ in s 1
envisages the establishment by national legislation of specialised tribunals for purposes of reviewing
administrative action in terms of the PAJA. The review tribunals have not yet been established.
178
Remedies 8.1–8.2
(d) Remedies, interpretation and limitation

In Sanderson v Attorney-General, Eastern Cape, Kriegler J stated that ‘our flexibility in
providing remedies may affect our understanding of the right’.4 What this means is that,
because South African courts have a wide discretion to fashion an ‘appropriate’
constitutional remedy, they should be less likely to be deterred from finding a violation
of the right than would be the case if they had a narrow menu of remedies to choose
from. Courts are likely to be more hesitant to find a violation of a right in situations
where there is no appropriate remedy for the violation.5
Deciding on a remedy requires a more pragmatic approach than that adopted in any of
the other stages of Bill of Rights litigation. The granting of a remedy is indeed the ‘art of
the possible’.
8.2 THE DIFFERENCE BETWEEN INVALIDITY OF UNCONSTITUTIONAL LAW OR

CONDUCT AND CONSTITUTIONAL REMEDIES
In Fose v Minister of Safety and Security6 Kriegler J stated in a concurring opinion that
the supremacy clause7 automatically renders any unconstitutional law or conduct a
nullity.8 In theory, invalidity therefore follows by operation of law from the fact of
inconsistency, whereas a remedy is awarded by a court in order to resolve a dispute
between the parties before it.
However, as a practical matter, inconsistency, invalidity and remedies cannot be
divorced from one another. Unconstitutional laws and conduct will stand until set aside.9
In general, such laws and conduct cannot be disregarded until set aside by a court. This
is why s 172(1) provides that, when deciding a constitutional matter, a court must
declare that any law or conduct that is inconsistent with the Constitution is invalid to the
extent of its inconsistency. By declaring the law or conduct to be invalid, a court brings
reality in line with ‘theoretical invalidity’.
Given the importance of the rule of law, and, subject to compliance with the threshold
requirements of Bill of Rights litigation (application, jurisdiction, justiciability), a court
is obliged to declare unconstitutional laws or conduct invalid.10
4
Sanderson v Attorney-General, Eastern Cape 1998 (2) SA 38 (CC) [27].
5
To illustrate the point with a counterfactual, consider what the appropriate remedy might have been had the
court found there was a violation of the Bill of Rights in President of the Republic of South Africa v Hugo 1997
(4) SA 1 (CC) and New National Party of South Africa v Government of the Republic of South Africa 1999 (3) SA
191 (CC). In Hugo, the remedy given by the court a quo (a suspended order of invalidity) would have had no
effect on its return date. Invalidity of the pardon would not have caused the men to be released or the pardoned
women to return to prison. Kriegler J suggested a declaration of rights, which is a clever solution in the
circumstances because it could have been used by the applicant in support of an individual application to be
pardoned, and by other prisoners in similar situations. In New National Party, it is hard to avoid the conclusion
that the court was hesitant to find a violation because any relief that it granted would have placed the imminent
1999 elections in jeopardy.
6
Ibid.
7
Section 2: ‘This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is
invalid, and the obligations imposed by it must be fulfilled.’
8
Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) [94]. See also, Ferreira v Levin NO 1996 (1) SA
984 (CC) [26], [158].
9
See, in respect of administrative action, Oudekraal Estates (Pty) Ltd v City of Cape Town 2004 (6) SA 222
(SCA).
10
In re: The National Education Policy Bill No 83 of 1995 1996 (3) SA 289 (CC) [16]; Dawood v Minister of
Home Affairs 2000 (3) SA 936 (CC) [17], [59] (‘a court is obliged, once it has concluded that a provision of a
statute is unconstitutional, to declare that provision to be invalid to the extent of its inconsistency with the
179
The declaration of invalidity is not the only remedy a court may give. Section 172
goes on to provide that, in addition to the declaration of invalidity, a court ‘may make
any order that is ‘just and equitable’ and s 38 provides for ‘appropriate relief’ where
fundamental rights are violated.11 When the courts award a remedy in constitutional
cases, they ‘attempt to synchronise the real world with the ideal construct of
constitutional world created in the image of [the supremacy clause].’12 The obvious way
to synchronise the real world with the Constitution is to declare unconstitutional laws
and conduct to be invalid. But, in order to eradicate inconsistencies between law and
conduct and the Constitution, the declaration of invalidity may not be enough. Positive
action may be required from government and for this reason it may therefore be
necessary to grant a reading-in or a mandamus or even a structural interdict. These
remedies and the circumstances in which they may be appropriate are discussed further
below.
When it comes to private violations of fundamental rights, the remedy of invalidation
may indeed be meaningless. In such cases, s 8(3) dictates that the court must first look
for an appropriate remedy in existing legislation. If there is no appropriate legislative
remedy, the court must turn to existing common law13 and if an appropriate remedy
cannot be found there, the court is obliged to develop such a remedy to give effect to the
Bill of Rights. What is provided in s 8(3) in respect of private conduct also applies to
other violations: constitutional remedies for violations of the Bill of Rights by the state
may be found in legislation or the existing common law.14
There are four major types of constitutional remedies. They are (1) declarations of
invalidity; (2) declarations of rights; (3) prohibitory and mandatory interdicts; and
(4) awards of constitutional damages. Before discussing these remedies we set out the
constitutional provisions, the jurisprudence relating to these provisions and other factors
providing guidance on the use of particular constitutional remedies.
8.3 ‘APPROPRIATE RELIEF’ AND THE FLEXIBLE APPROACH TO CONSTITUTIONAL

REMEDIES
Section 38 provides that the remedy for a violation of the Bill of Rights must be
appropriate. However, apart from the instructions contained in s 172 and s 8(3), the
Constitution does not tell us what ‘appropriate relief’ is. This can only mean that s 38
Constitution’); National Director of Public Prosecutions v Mohamed NO 2003 (4) SA 1 (CC) [56]; Islamic Unity
Convention v Independent Broadcasting Authority 2002 (4) SA 294 (CC) [10]; Rail Commuters Action Group v
Transnet Ltd t/a Metrorail 2005 (2) SA 359 (CC) [106].
11
Minister of Health v Treatment Action Campaign (2) 2002 (5) SA 721 (CC) [101]. The remedial power
conferred by s 172(1)(b) to grant just and equitable relief is available even where the outcome of a constitutional
dispute does not hinge on constitutional invalidity of legislation or conduct. See Minister of Safety and Security
v Van der Merwe 2011 (5) SA 61 (CC) [59].
12
Fose (note 8 above) [94].
13
Dikoko v Mokhatla 2006 (6) SA 235 (CC) [91] (common-law remedies that vindicate constitutionally
entrenched rights are usually ‘appropriate relief’ for infringements of those rights).
14
See Kriegler J in Fose (note 8 above) [98]–[99], observing that the Labour Relations Act 66 of 1995 codifies
constitutional rights in the labour context and it ‘would undermine the best efforts of the legislature to exclude
these remedies from a court’s arsenal of remedial options’. In Jayiya v Member of the Executive Council for
Welfare, Eastern Cape 2004 (2) SA 611 (SCA) [9] the SCA stressed that ‘Where the lawgiver has legislated
statutory mechanisms for securing constitutional rights, and provided, of course, that they are constitutionally
unobjectionable, they must be used.’
180
Remedies 8.3–8.5
sanctions a flexible approach to remedies.15 Apart from providing that unconstitutional

laws and conduct must be declared invalid, and that relief granted must be ‘appropriate’
and ‘just and equitable’, no particular remedy is prescribed for the violation of a
constitutional right.
We now turn to the purpose of constitutional relief and other factors that play a role in
determining what constitutes ‘appropriate relief’ and ‘just and equitable’ relief in the
circumstances of a particular case.
8.4 THE PURPOSE OF CONSTITUTIONAL REMEDIES

The harm caused by violating constitutional rights is not merely a harm to an individual
applicant, but a harm to society as a whole: the violation impedes the realisation of the
constitutional project of creating a just and democratic society. Therefore the object in
awarding a remedy is not only to grant relief to the litigant before the court but also to
vindicate the Constitution and deter future infringements.16 Vindication is necessary
because harm to constitutional rights, if not addressed, will diminish the public’s faith in
the Constitution. The judiciary therefore bears the burden of striking effectively at the
source of the infringement.17
In general, therefore, constitutional remedies are forward-looking, community-
oriented and structural rather than backward-looking, individualistic and corrective or
retributive. As the Constitutional Court held in the Metrorail case:
private law damages claims are not always the most appropriate method to enforce
constitutional rights. Private law remedies tend to be retrospective in effect, seeking to
remedy loss caused rather than to prevent loss in the future. Moreover, the use of private law
remedies to claim damages to vindicate public law rights may place heavy financial burdens
on the state. . . .18
In a later judgment, the Constitutional Court expressed the same sentiment by stating
that the purpose of a public law remedy is to pre-empt or correct or reverse improper
actions, to advance efficient and effective public administration compelled by
constitutional precepts and at broader level, and to entrench the rule of law.19
8.5 OTHER FACTORS RELEVANT TO THE AWARD OF CONSTITUTIONAL REMEDIES

The Constitutional Court has emphasised the need for effective remedies.20 For
example, in Hoffmann v South African Airways21 it ordered an employer to appoint a job
applicant who had been turned down on the basis of his HIV-positive status. The court
held that:
15
Sanderson (note 4 above) [38].
16
17
According to the Constitutional Court in Sanderson (note 4 above) [38]: ‘ ‘‘appropriateness’’ requires
‘‘suitability’’ which is measured by the extent to which a particular form of relief vindicates the Constitution and
acts as a deterrent against further violations of rights’.
18
Metrorail (note 10 above) [80].
19
Steenkamp NO v Provincial Tender Board, Eastern Cape 2007 (3) SA 1210 (CC) [29].
20
National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC) [65],
[81]–[82].
21
Hoffmann v South African Airways 2001 (1) SA 1 (CC).
181
. . .in determining appropriate relief, we must carefully analyse the nature of [the]
constitutional infringement, and strike effectively at its source.22
Thus, even though the ‘appointment’ of a job applicant is a drastic invasion of the
employer’s prerogative, it was the only effective remedy in the circumstances.
Ideally speaking, a court’s order must not only afford effective relief to a
successful litigant, but also to all similarly situated people. This is the second factor
that must be considered. As the Constitutional Court has stated, in constitutional
cases there is ‘a wider public dimension. The bell tolls for everyone.’23 This requires
a consideration of the interests of all those who might be affected by the order, and
not merely the interests of the parties to the litigation.24
The third factor to take into account is good government. For example, the
Constitutional Court has declined to grant remedies that would lead to ‘serious
inconsistencies’ in the legislative framework.25
The fourth factor that is often referred to is the principle of separation of powers
and flowing from it, the deference a court owes to the legislatures when devising a
constitutional remedy. Although it did not lay down guidelines, the Constitutional
Court has stated that deference involves ‘restraint by the Courts in not trespassing
onto that part of the legislative field which has been reserved by the Constitution,
and for good reason, to the Legislature’.26 For example, it will be inappropriate for a
court to order a legislature to introduce and adopt specific legislation. Intervention in
incomplete legislation processes is only considered if there would be no effective
remedy once the legislation process is complete.27 The court has also refrained from
granting a remedy that would have an ‘unsupportable budgetary intrusion’ in respect
of an important social insurance scheme.28 However, while the doctrine of separation
of powers is important, it cannot be used to avoid the obligation of a court to
prevent a violation of the Constitution.29
Fifth, there is the identity of the violator. The deterrent effect of some remedies,
such as constitutional damages may differ considerably, depending on whether the
violator of rights is public or private.30 Also, when an institution is responsible for
the violation, it may be possible to remit a decision to the violator, a remedy that is
hardly a possibility when the violator is an individual.
Sixth, and closely related to the identity of the violator, the nature of the violation
must be considered. For example, systemic violations of fundamental rights—as
opposed to isolated violations—call for structural remedies, with appropriate
institutions to supervise their implementation.
22
Ibid [45].
23
National Coalition for Gay and Lesbian Equality v Minister of Home Affairs (note 20 above) [82]; Equity
Aviation Services (Pty) Ltd v CCMA 2009 (1) SA 390 (CC) [56].
24
Hoffmann (note 21 above) [42]–[43]. See S v Thunzi 2010 (10) BCLR 983 (CC) where the Constitutional
Court, having invalidated a minimum sentencing provision applicable only to the Transkei, went to great lengths
in its order to ensure that those affected by the application of the unconstitutional law be assisted. The DPP was
ordered to provide a list of those potentially affected and Legal Aid SA was requested to assist those offenders.
25
Geldenhuys v National Director of Public Prosecutions 2009 (2) SA 310 (CC) [42].
26
National Coalition for Gay and Lesbian Equality v Minister of Home Affairs (note 20 above) [66].
27
Glenister v President of the Republic of South Africa 2009 (1) SA 287 (CC) [44].
28
Mvumvu v Minister for Transport 2011 (2) SA 473 (CC) [49]–[53].
29
Doctors for Life International v Speaker of the National Assembly 2006 (6) SA 416 (CC) [200].
30
Fose (note 8 above) [87], where Didcott J stated that the factors that discourage awards of punitive damages
against the state will not necessarily apply to private persons. In the case of private violators, the award would not
have to be paid out of public coffers and the deterrent effect of the remedy would be appreciably enhanced.
182
Remedies 8.5–8.6
Seventh, the consequences or impact of the violation on the victim must be

considered. Violations of rights that result in imprisonment of the victim should not
be tolerated, even temporarily. A suspension of the order of invalidity is therefore
not an option in such cases.31
Eighth, fault and causation are factors particularly when considering constitutional
damages.32
Ninth, ‘victim responsibility’ may play a role at various stages of Bill of Rights
analysis, including remedial analysis. For example, in Sanderson the responsibility of
the accused himself for delays in a criminal trial featured prominently at the
rights-defining stage of analysis.33 There is of course no reason why it should not
also play a role at the remedial stage. A permanent stay of prosecution would clearly
be inappropriate where the victim is partially to blame for delays in bringing a trial
to conclusion.34
Finally, courts should take into account the prospects of successful implementation
of their order when considering the appropriateness of a remedy.35 Apart from
budgetary implications, which loom large at the remedial stage of analysis,
consideration must be given to the amount of time to be given to comply with an
order, particularly in the case of mandatory interdicts. A court should also consider
the possibility of resistance or evasion of the court’s order. A remedy must not be
vague or imprecise. A court should ensure that the remedy is formulated in an
understandable manner and that the target has the ability and capacity to comply
with the order.
8.6 THE CONSTITUTIONAL REMEDIES
(a) Declarations of invalidity

(i) General principles
The default remedy following a finding that a law or a provision of a law is inconsistent
with the Constitution is to declare the law or the provision invalid to the extent of the
inconsistency (s 172(1)(a)). The same applies to conduct of a person or an institution
bound by the Constitution.36 In a constitutional state, the supremacy of the Constitution
means that laws or conduct inconsistent with the Constitution are invalid and that a court
must declare them to be so.37 At the same time, the remedy should be ‘just and
31
Coetzee v Government of the Republic of South Africa 1995 (4) SA 631 (CC) [18].
32
Government of the Republic of South Africa v Von Abo 2011 (5) SA 262 (SCA) [33].
33
Sanderson (note 4 above) [33]–[34]: ‘if an accused has been the primary agent of delay, he should not be
able to rely on it in vindicating his rights [to have his trial begin and conclude without reasonable delay]. The
accused should not be allowed to complain about periods of time for which he has sought a postponement or
delayed the prosecution in ways that are less formal’.
34
See Billiton Aluminium SA Ltd t/a Hillside Aluminium v Khanyile 2010 (5) BCLR 422 (CC) which
concerned systematic delays in dispute resolution of labour cases. The court did not decide the challenge as the
employer was partly to blame for the delay.
35
See Hoffmann (note 21 above) [45] (the objective must be to grant an order that can be complied with);
Ngxuza v Permanent Secretary, Department of Welfare, Eastern Cape 2001 (2) SA 609 (E), 633A (futile to make
an order that the respondents might have difficulty in complying with or that may take a long time to comply
with); Von Abo (note 32 above) [26]–[27] (‘compliance with order of Court a quo was impossible’).
36
Section 2 read with s 172(1).
37
Bengwenyama Minerals (Pty) Ltd v Genorah Resources (Pty) Ltd 2011 (4) SA 113 (CC) [81]–[87] where the
Constitutional Court re-emphasised the importance of legality, which requires, in the context of administrative
183
equitable’ and this is why the courts are empowered ‘to regulate the impact of a
declaration of invalidity’.38
What is just and equitable depends on the circumstances of each case.39 The impact of
a declaration of invalidity may be regulated by severing the unconstitutional provisions
in a statute from the constitutional ones, by reading-in, by controlling the retrospective
effects of a declaration of invalidity, or by temporarily suspending a declaration of
invalidity or any combination of the aforementioned.40 On occasion, it may be necessary
to go further than this. For example, when certain customary law rules of succession
were found to be inconsistent with the equality rights of women and illegitimate
children, the Constitutional Court replaced these rules with a set of temporary new rules,
pending law reform by Parliament.41
Any party to litigation may motivate for the granting of a remedy other than a
straightforward declaration of invalidity. If not addressed by the parties, this aspect is
invariably raised by the court itself.
As a matter of jurisdiction, the High Courts, the Supreme Court of Appeal and the
Constitutional Court may declare all forms of legislation and conduct invalid. However,
a declaration that an Act of Parliament, a provincial law or conduct of the President is
invalid has no force and effect unless issued or confirmed by the Constitutional Court.42
Pending confirmation by the Constitutional Court, temporary relief may be granted.43
Even though its order may not have final effect, a thorough canvassing of the remedial
possibilities is required in the court of first instance.44 This must be done even if the
attack on the validity of the law was not opposed by the state.45
When a court strikes down a statute or reads words into it, its choice is not necessarily
the final word on the issue. A legislature may respond by amending the statute and even,
within the limits of the Constitution, undo a court’s order if dissatisfied with it. There are
law, that invalid administrative action be declared unlawful. The court held that the factual circumstances; the
kind of challenge presented (direct or collateral); the interest involved; and the extent and materiality of the
breach of the constitutional right, may indicate some ‘amelioration of legality’. See in respect of legislation, Van
der Merwe v Road Accident Fund 2006 (4) SA 230 (CC) [71] (s 172 contains ‘express duty to declare law
inconsistent with Constitution invalid’).
38
Executive Council of the Western Cape Legislature v President of the Republic of South Africa 1995 (4) SA
877 (CC) [107].
39
United Democratic Movement v President of the Republic of South Africa (No 2) 2003 (1) SA 495 (CC)
[115].
40
See, for example, South African National Defence Union v Minister of Defence 2007 (5) SA 400 (CC) [94]
(combining severance and reading in); Shinga v The State 2007 (4) SA 611 (CC) [56] (combining severance and
reading in).
41
Bhe v Magistrate, Khayelitsha 2005 (1) SA 580 (CC).
42
Section 172(2)(a). See, further, para 5.4(b) in Chapter 5 above. An order invalidating subordinate
legislation, such as regulations made by a Minister does not need to be confirmed: Minister of Home Affairs v
Liebenberg 2002 (1) SA 33 (CC). The same applies in respect of by-laws made by a municipal council.
43
Section 172(2)(b). See, further, below and para 5.3(f) in Chapter 5 above. A court may grant interim relief
even if a matter falls within the exclusive jurisdiction of the Constitutional Court, such as the matters listed in
s 167(4) of the Constitution, provided that interim relief is merely provided to preserve the status quo and not to
decide the dispute. See National Gambling Board v Premier, KwaZulu-Natal 2002 (2) SA 715 (CC) [53].
44
National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6 (CC) [87]–[88] (‘it is
indeed essential that the court of first instance receive evidence in this regard and adjudicate on it, and not the
court of appeal or confirmation’). The Constitutional Court may vary the High Court order; it is not restricted to
confirming or rejecting it. See Dawood (note 10 above) [60].
45
Phillips v Director of Public Prosecutions (Witwatersrand Local Division) 2003 (3) SA 345 (CC) [8]–[12];
MEC for Local Government, Western Cape v Paarl Poultry Enterprises CC 2002 (3) SA 1 (CC) [47].
184
Remedies 8.6
many ways of achieving consistency between the law and the Constitution. A court’s
role should be confined to eliminating unconstitutional options rather than prescribing to
the legislature what it regards to be constitutional.
For this reason, the courts should prefer narrow rulings in constitutional cases. Broad
rulings, coupled with remedies that a court considers to be ‘demanded’ by the
Constitution, may considerably restrict the legislature’s ability to reform the law,46 and
violate the principle of the separation of powers.
(ii) Controlling the impact of a declaration of invalidity

(aa) Severance
Section 172(1)(a) provides that a law or conduct must be declared invalid to the ‘extent
of its inconsistency’ with the Constitution. This requires a court to declare invalid only
those parts of a law that are unconstitutional. Usually, this will entail striking down a
particular section or subsection of a law or even a phrase or word within a subsection
and leaving the rest of the law intact.
Kriegler J laid the groundwork for the Constitutional Court’s approach to severance
in Coetzee v Government of the Republic of South Africa, in the following terms:
Although severability in the context of constitutional law may often require special
treatment, in the present case the trite test can properly be applied: if the good is not
dependent on the bad and can be separated from it, one gives effect to the good that remains
after the separation if it still gives effect to the main objective of the statute. The test has two
parts: first, it is possible to sever the invalid provisions and second, if so, is what remains
giving effect to the purpose of the legislative scheme?47
There are two parts to this test. First, it must be possible to sever the bad from the good.
Secondly, the remainder must still give effect to the purpose of the law. We will
consider the two parts in turn.
• Severing the bad from the good

Severance aims to cure the legislation of any constitutional defects.48 This objective
may be achieved in one of two ways: actual severance and notional severance. Actual
severance entails the removal of words and phrases from a legislative provision.
Notional severance entails leaving the language of the provisions intact, but subjecting it
to a condition for proper application. Notional severance is often resorted to when a
statute is overbroad and its application has to be restricted. An example of notional
severance is provided by the order of the Constitutional Court in Ferreira v Levin NO.49
Ackermann J, who formulated the court’s order, held that in certain cases severance
cannot be ‘surgically neat’. In his order, Ackermann J then specified exactly the extent
46
National Coalition for Gay and Lesbian Equality v Minister of Home Affairs (note 20 above) [76], [84],
[86]; Treatment Action Campaign (note 11 above) [114].
47
Coetzee (note 31 above) [16]. The test has been consistently employed. For a recent application see
Oriani-Ambrosini v Sisulu, Speaker of the National Assembly 2012 (6) SA 588 (CC) [93]. The approach is also
valid in respect of unconstitutional common law offences. The declaration of invalidity should be restricted to the
unconstitutional component. See National Coalition for Gay and Lesbian Equality v Minister of Justice (note 44
above) [68]–[73].
48
See South African National Defence Union v Minister of Defence 1999 (4) SA 469 (CC) [14].
49
Ferreira v Levin NO (note 8 above). See also De Lange v Smuts NO 1998 (3) SA 785 (CC); Islamic Unity
Convention v Independent Broadcasting Authority (note 10 above) [55]; First National Bank of SA Ltd t/a
Wesbank v Commissioner, South African Revenue Services 2002 (4) SA 768 (CC) [114].
185
to which s 417(2)(b) of the Companies Act was unconstitutional and invalid. He did this
not by striking out offending words in the subsection, but by adding a condition, namely
that the ‘effect of the order will be to render inadmissible, in criminal proceedings
against a person previously examined pursuant to the provisions of s 417(2)(b),
incriminating evidence given by such person under compulsion of the provisions of
s 417(2)(b)’.50
In National Coalition for Gay and Lesbian Equality v Minister of Home Affairs51
the Constitutional Court held that where the invalidity of a statutory provision results
from an omission, it is not possible to remedy a defect through notional severance.
Notional severance, the court stated, can be used where it is the presence of
particular provisions that is constitutionally offensive or where the scope of the
provision is too extensive and hence constitutionally offensive. In such matters, the
unconstitutionality cannot be cured by excising actual words from the provision. In
the case of an omission, the device of reading-in, or the suspension order, which we
discuss below, must be used.52
Although both actual and notional severance are permissible, actual severance is
preferable where available because it leaves the statutory provision with clear
language.53
• What remains must give effect to the purpose of the legislation

After the bad is severed from the good, the remainder must still give effect to the
purpose of the law. As the ‘purpose’ of a law or legislative provision is seldom easy to
ascertain, the application of this part of the test has been difficult.
Needless to say, the purpose of a provision must be determined with reference to
the statute as a whole. For example, in Case v Minister of Safety and Security,54
Mokgoro J held that the purpose of the Obscene Photographic Matter Act 37 of 1967
was to impose a ‘comprehensive scheme of censorship to give effect to a particular
moral, cultural and political world-view’. In these circumstances it would not do
justice to the intention of the legislature ‘to pare it down to prohibit only that
discrete set of sexually-orientated expressions that [the] Court believes may
constitutionally be restricted’.55 Mokgoro J’s approach is supported by the court in
Coetzee.56
50
Ferreira (note 8 above) [156]. See also Twee JongeGezellen (Pty) Ltd v Land and Agriculture Development
Bank 2011 (3) SA 1 (CC) [78.4]. This type of order raises questions about the distinction between reading-in and
severance. For practical purposes, the effect of adding a condition is the same as reading-in. In our view, reading-
in is preferable as it is more precise. See Centre for Child Law v Minister for Justice and Constitutional
Development 2009 (6) SA 632 (CC) [71].
51
Note 20 above [63]–[64].
52
See also Dawood v Minister of Home Affairs (note 10) [61] (notional severance cannot be used where
unconstitutionality caused by the absence of legislative guidance); Janse van Rensburg v Minister of Trade and
Industry 2001 (1) SA 29 (CC) [28].
53
South African National Defence Union (note 48 above) [16].
54
Case v Minister of Safety and Security 1996 (3) SA 617 (CC).
55
Ibid [72].
56
Coetzee (note 31 above) [17] (‘[i]n order to [excise only offending provisions] . . . this Court would have to
engage in the details of law-making, a constitutional activity given to the legislatures’). See also First National
Bank v Land and Agricultural Bank 2000 (3) SA 626 (CC) [15] (unconstitutional provision forms part of an
186
Remedies 8.6
It should be clear by now that the apparently simple two-part test of Kriegler J
may be extremely difficult to apply in practice. Severance is by no means a
mechanical operation. The difficulties are well illustrated by the sharp divisions
between the judges of the Constitutional Court in S v Coetzee.57 In this case, all the
judges who proposed severance employed a combination of reading down and
severance to meet the first part of Kriegler J’s test (the possibility of severance).
They then attached a broad rather than a narrow purpose to the legislative provision
in order to meet the second part (whether what remains after severance still gives
effect to the legislative purpose). On the other hand, the judges who thought the
subsection incapable of severance applied both parts of the test much more strictly.
Sachs J, for example, remarked that the problem was that ‘too much reading down
of too many terms, coupled with too many excisions of the text, leaves something so
tattered and insecure, that it cannot be said that effect would be given to any of the
principal objects of the legislature’.58
(bb) Reading-in of words

The reading-in of missing words from a statutory provision must be distinguished from
interpreting a statute in conformity with the Constitution, which is often referred to as
‘reading-down’.59 Reading-down is a method of statutory interpretation which s 39(2)
demands of every court and other tribunal or forum. The purpose is to avoid
inconsistency between the law and Constitution and the technique is limited to what the
text is reasonably capable of meaning.60
Reading-in, on the other hand, is a constitutional remedy that is granted by a court
after it has concluded that a statute is constitutionally invalid.61 The Constitutional Court
considers reading-in to be a corollary to the remedy of severance.62 Severance is used in
cases where it is necessary to remove offending parts of a statutory provision. Reading-
in is predominantly used when the inconsistency is caused by an omission, and it is
necessary to add words to the statutory provision to cure it. Both remedies are
permissible under s 172 of the Constitution.
As with severance, reading-in should ensure that the inconsistency between the
Constitution and the statute is removed. Interference with the legislation must be kept to
a minimum.63 But because reading-in permits a much more radical reconstruction of a
statute, there are further considerations to bear in mind in respect of this remedy:
In deciding to read words into a statute, a court should also bear in mind that it will not be
appropriate to read words in, unless in so doing a court can define with sufficient precision
integrated scheme, severing would alter the system and would amount to legislating, a function reserved for
Parliament).
57
S v Coetzee 1997 (3) SA 527 (CC).
58
Ibid [226]. It should further be kept in mind that a court cannot strike out words from provisions that have
not been challenged in the proceedings before it. A common mistake is to restrict the challenge to the offending
words in a statute without considering the consequences of removing them for the rest of the statute. A court will
not sever if the legislature will thereafter have to complete the job by effecting a series of consequential
amendments to the statute. See Chief Lesapo v North West Agricultural Bank 2000 (1) SA 409 (CC) [31]–[32]. If
necessary, therefore, the constitutional validity of the whole mechanism, even the whole statute, must be
challenged.
59
See, further para 3.4(b) in Chapter 3 above.
60
61
Ex parte Minister of Safety and Security: in re S v Walters 2002 (4) SA 613 (CC) fn 30.
62
Ibid [70].
63
187
how the statute ought to be extended in order to comply with the Constitution. Moreover,
when reading-in (as when severing) a court should endeavour to be as faithful as possible to
the legislative scheme within the constraints of the Constitution. Even where the remedy of
reading-in is otherwise justified, it ought not to be granted where it would result in an
unsupportable budgetary intrusion. In determining the scope of the budgetary intrusion, it
will be necessary to consider the relative size of the group which the reading-in would add to
the group already enjoying the benefits. Where reading-in would, by expanding the group of
persons protected, sustain a policy of long standing or one that is constitutionally
encouraged, it should be preferred to one removing the protection completely.64
In Dawood v Minister of Home Affairs65 an additional consideration prompted the
Constitutional Court to refrain from using the reading-in power to cure an omission in
legislation. The principle underlying the court’s reluctance here is grounded in the
separation of powers doctrine. Where various options are available to the legislature to
cure the constitutional defect in legislation, it is not appropriate for a court, by using the
reading-in power, to choose one of those options:
Where, as in the present case, a range of possibilities exists, and the Court is able to afford
appropriate interim relief to affected persons, it will ordinarily be appropriate to leave the
legislature to determine in the first instance how the unconstitutionality should be cured.
This Court should be slow to make those choices which are primarily choices suitable for
the legislature.66
In the National Coalition case, the first occasion on which the Constitutional Court
employed the remedy, the court extended a benefit enjoyed by foreign spouses of South
African citizens under the Aliens Control Act 96 of 1991 to same-sex life partners of
South Africans. According to the court the extension of the benefit was in keeping with
the government’s policy to treat same-sex life partners the same as spouses and the
budgetary implications of its decision were minimal. The remedy was further necessary
to vindicate the rights of gay and lesbian couples and to eradicate discrimination against
them based on stereotypical views.
Since this decision the remedy has been consistently employed to remedy statutes
that confer benefits on the ‘spouse’ of a married person but exclude permanent
same-sex life partners from the benefits.67 The reason for this is that the word
64
Ibid [75]. But these requirements are not consistently considered in subsequent cases. See Lawyers for
Human Rights v Minister of Home Affairs 2004 (4) SA 125 (CC) [45] (merely stating that reading-in is the least
invasive remedy); Khosa v Minister of Social Development 2004 (6) SA 505 (CC) (cost of extending social
assistance benefits to permanent residents, including the potential knock-on effect on the position of refugees, not
pertinently considered when reading-in order granted); Jaftha v Schoeman 2005 (2) SA 140 (CC) (reading-in to
provide for judicial oversight over execution against immovable property for small debts of home owners);
Mabaso v Law Society, Northern Provinces 2005 (2) SA 117 (CC) (reading-in to remove discrimination against
attorneys admitted in former homelands).
65
Dawood v Minister of Home Affairs (note 10 above).
66
Ibid [64]. See also National Credit Regulator v Opperman 2013 (2) SA 1 (CC) [84] (‘Court should not
venture into patch-work legislating’).
67
Du Toit v Minister of Welfare & Population Development 2003 (2) SA 198 (CC) (adoption legislation);
Satchwell v President of Republic of South Africa 2002 (6) SA 1 (CC) (read into legislation to provide for same
pension benefit to same-sex life partner of deceased judge as was provided for spouses); J v Director-General,
Department of Home Affairs 2003 (5) SA 621 (CC) (read into legislation to permit permanent same-sex life
partner to become legitimate parent of child conceived by artificial insemination); Gory v Kolver NO 2007 (4) SA
97 (CC) (read into intestate succession legislation).
188
Remedies 8.6
‘spouse’ cannot reasonably be interpreted to include a same-sex partner and the

unfair discrimination can only be cured by a reading-in.68
In S v Manamela a majority of the Constitutional Court held that the remedy of
reading-in is not necessarily confined to cases in which a provision has been found
to be under-inclusive. There was no reason why it could not also be used as part of
the process of narrowing the reach of a provision that is unduly invasive of a
protected right.69 In this case the court invalidated a reverse-onus presumption and
read an evidential presumption into its place. With the new device of striking down
and reading-in, the court managed to achieve a result (the replacement of a
reverse-onus presumption with a evidential presumption) that it could not achieve by
‘reading-down’.70 The same approach was employed in S v Singo.71
Reading-in is invoked by the Constitutional Court with increasing frequency and
scope.72 One cannot help but surmise that this is caused, in part, by some of the
disappointing outcomes that have ensued from the use of the suspension order,
discussed in para 8.6(a)(ii)(dd) further below. Reading-in has the advantage of
putting a constitutionally compliant regime immediately in place, which can be
amended by the legislature at any time.73 It is accordingly not as intrusive as it was
originally considered to be in the early case law.
(cc) Controlling the retrospective effect of orders of invalidity

As we have seen, the constitutional supremacy clause automatically makes any
unconstitutional law or conduct a nullity.74 When a court declares legislation invalid it
simply confirms that law is invalid.75 In principle, therefore, the declaration invalidates
the legislation and any actions taken under the legislation from the moment the
legislation or the Constitution came into effect, whichever is the later date, and not from
68
Daniels v Campbell NO 2004 (5) SA 331 (CC) [33] and [34]. The same problem did not affect Muslim
marriages, however, and the terms ‘spouse’ and ‘survivor’ in the Maintenance of Surviving Spouses Act 27 of
1990 were read down to include Muslim marriages, thereby avoiding unfair discrimination on grounds of religion
or marital form.
69
S v Manamela 2000 (3) SA 1 (CC) [56].
70
The argument that a reverse onus presumption could be read down to an evidential presumption was rejected
in a number of cases, most pertinently in S v Bhulwana 1996 (1) SA 388 (CC) [25]–[29].
71
S v Singo 2002 (4) SA 858 (CC) (summary procedure for dealing with the offence of failing to comply with
a warning to appear in court in s 72(4) of the Criminal Procedure Act 55 of 1977 struck down as a reverse-onus
presumption; constitutional defect cured by reading-in a burden on accused to satisfy the court that there is a
reasonable possibility that the failure to appear was not due to fault on his part).
72
See, for example, Hassam v Jacobs NO 2009 (5) SA 572 (CC) at [51]–[57] where the court read-in a fairly
sophisticated mechanism in order to allow more than one spouse in a polygynous Muslim marriage to inherit
intestate.
73
C v Department of Health and Social Development, Gauteng 2012 (2) SA 208 (CC) [89].
74
75
The principle underlying retrospective effect of a declaration of invalidity is summed up thus by Ackermann
J in Ferreira (note 8 above) [27]–[28]: ‘The Court’s order does not invalidate the law; it merely declares it to be
invalid. . . A pre-existing law which was inconsistent with the provisions of the Constitution became invalid the
moment the relevant provisions of the Constitution came into effect. The fact that this Court has the power in
terms of section 98(5) [IC] to postpone the operation of invalidity and, in terms of section 98(6) [IC], to regulate
the consequences of the invalidity, does not detract from the conclusion that the test for invalidity is an objective
one and that the inception of invalidity of a pre-existing law occurs when the relevant provision of the
Constitution came into operation.’ See also Fose (note 8 above) [94] where Kriegler J confirmed that in respect of
laws, the court ‘finds’ them inconsistent with the Constitution, whereas it ‘declares’ executive or administrative
conduct to be unconstitutional. Kriegler J argued that, in both cases, the declaration is merely descriptive of a
pre-existing state of affairs.
189
the moment of the court’s order. Differently put, the Constitution screens out
unconstitutional law and conduct, preventing them from surviving its commencement.76
Obviously, the retrospective invalidation of actions taken in good faith under the
authority of ostensibly valid legislation could have disruptive results. For example,
when a court invalidates an unconstitutional reverse-onus presumption in a criminal
procedure statute, all convictions that have previously been granted on the basis of the
presumption become invalid.77 Section 172(1)(b)(i) therefore permits a court, in the
interests of justice and equity, to depart from the principle and to limit the retrospective
effects of a declaration of invalidity.
Section 172(b)(i) represents a change from the position under the interim
Constitution.78
In the 1996 Constitution, no distinction is made between post-constitutional and
pre-constitutional legislation. Section 172(1)(b)(i) assumes that, in the ordinary course
of events, a declaration of invalidity of legislation will have retrospective effect.79 This
means that the burden is on the party wishing to limit the effects of retrospectivity to
provide the court with the necessary information and reasons why it is just and equitable
to limit the retrospective effects of the order.80
The Constitutional Court has taken several factors into account when determining
whether to limit the retrospective effects of an order of invalidity.81 In general, the court
balances the disruptive effects of an order of retrospective invalidity against the need to
give effective relief to the applicant and similarly-situated people.82 As far as disruption
is concerned, a court will be hesitant to disturb the results of cases finalised before its
order of invalidity,83 and even more hesitant to expose those who acted in good faith
76
A law could also have been screened out by the interim Constitution which contained a similar supremacy
clause. In such cases, the law would become invalid when the interim Constitution came into effect on 27 April
1994. See Bhe (note 41 above) [128]. The point is nicely illustrated by Prince v President, Cape Law Society
2001 (2) SA 388 (CC). One of the issues in Prince was the validity of s 12(1)(b) of the Supreme Court Act 59 of
1959 which required eleven judges of appeal to sit in cases in which the validity of an Act of Parliament was in
question. The Supreme Court of Appeal had considered the constitutionality of two Acts with a quorum of five
and not eleven judges. Was the decision of the SCA invalid as a result? According to the Constitutional Court, the
quorum requirement in s 12(1)(b) was in conflict with the interim Constitution (notwithstanding its repeal by the
1996 Constitution). The interim Constitution expressly provided that the Appellate Division lacked jurisdiction to
enquire into the constitutional validity of legislation. To the extent that the 1959 Supreme Court Act provided that
the Appellate Division had jurisdiction to adjudicate the constitutionality of Acts of Parliament, it was invalid.
Moreover, it had been invalid since the moment of commencement of the interim Constitution on 27 April 1994.
77
So, if the invalidation of the dagga-dealing presumption in S v Bhulwana (note 70 above) had been
retrospective it would have required the retrial of all persons convicted on the basis of the presumption since the
commencement of the interim Constitution.
78
See in respect of the interim Constitution: Executive Council of the Western Cape Legislature (note 38
above) [108].
79
National Coalition for Gay and Lesbian Equality v Minister of Justice (note 44 above) [84].
80
See S v Mello 1998 (3) SA 712 (CC) [11], where the Constitutional Court held that the evidence should
preferably be evaluated by the court of first instance.
81
Most of the considerations are listed by Kriegler J in S v Ntsele 1998 (11) BCLR 1543 (CC) [14].
82
See for example: S v Zuma 1995 (2) SA 642 (CC) [43] (the ‘interest of individuals must be weighed against
the interest of avoiding dislocation to the administration of justice and the desirability of a smooth transition from
the old to the new’ and the interest of avoiding ‘the dislocation and inconvenience of undoing transactions,
decisions or actions taken under [the] statute’).
83
S v Bhulwana (note 70 above) [32] (‘As a general principle. . . an order of invalidity should have no effect
on cases which have been finalised prior to the date of the order of invalidity’); President of the Ordinary Court
Martial v Freedom of Expression Institute 1999 (4) SA 682 (CC) [19]; National Coalition for Gay and Lesbian
Equality v Minister of Home Affairs (note 20 above) [89]; First National Bank v Land and Agricultural Bank
(note 56 above) [18].
190
Remedies 8.6
under ostensibly-valid legislative authority to possible delictual or criminal liability.84

As far as the need to give effective relief is concerned, the Constitutional Court has
recognised the importance of affording successful litigants the relief they require, but
has also held that the litigants before a court should not be singled out for relief but that
all people who are in the same situation should be afforded relief.85 Full retrospectivity
has been ordered to avoid ‘patent injustice’.86
The usual practice followed when a court decides to vary the retrospective effect of its
declaration of invalidity in the interests of avoiding disruption to the justice system is to
make a prospective order invalidating a statute, or reading-in correcting words. This
means that the invalid provision may no longer be applied from the date of the order in
unresolved matters, or that the corrected version must be applied henceforth. At the
same time the order is declared to operate retrospectively in the limited sense that, where
appeal or review is still pending or the time for the noting has not yet expired, the
unconstitutionality of the statute may be raised in such appeal or review.87
If an order is not explicitly qualified, the order will be regarded to invalidate
retrospectivity to the commencement of the 1996 Constitution on 4 February 1997.88
84
See De Lange v Smuts NO (note 49 above) [105]; Mistry v Interim National Medical and Dental Council of
South Africa 1998 (4) SA 1127 (CC) [34]; National Coalition for Gay and Lesbian Equality v Minister of Justice
(note 44 above) [102]; S v Ntsele (note 81 above) [13] (the financial consequences for third parties of a
retrospective order will be considered); Ex parte Minister of Safety and Security: In re S v Walters (note 61
above) [74]–[75] (unfair to create criminal and civil liability after the event); Masiya v Director of Public
Prosecutions, Pretoria 2007 (5) SA 30 (CC) [51] (definition of rape cannot be extended retrospectively, to
include non-consensual anal penetration of a female, as this would offend the constitutional principle of legality.
Prospective extension was accordingly ordered.)
85
S v Bhulwana (note 70 above) [32] (‘Central to a consideration of the interests of justice in a particular case
is that successful litigants should obtain the relief they seek. It is only when the interests of good government
outweigh the interests of the individual litigants that the Court will not grant relief to successful litigants. In
principle too, the litigants before the Court should not be singled out for the grant of relief, but relief should be
afforded to all people who are in the same situation as the litigants.’); Mistry (note 84 above) [35] (court will not
selectively reach back into the past to come to the aid of one successful litigant without affording the relief to
others in the same situation). In National Coalition for Gay and Lesbian Equality v Minister of Justice (note 44
above) [94] the Constitutional Court held that the interests of good government, explicitly mentioned in s 98(6)
of the interim Constitution, would continue to be a factor to consider. The 1996 Constitution, however, by
requiring an order that is ‘just and equitable’ entrenches a broader and more flexible test.
86
Hassam (note 72 above) [55].
87
The order in S v Bhulwana (note 70 above) is a representative example. See, however, Centre for Child Law
(note 50 above) where the court added instances where an application for condonation for the late filing of an
application for leave to appeal (or the late noting of an appeal) is granted. This makes the order nearly fully
retrospective.
88
Malachi v Cape Dance Academy International (Pty) Ltd 2010 (6) SA 1 (CC) [48]. This default rule caused
considerable uncertainty after the Constitutional Court handed down its decision in Jaftha v Schoeman 2005 (2)
SA 140 (CC), in which it invalidated s 66(1)(a) of the Magistrates’ Courts Act 32 of 1944 to the extent that it
allowed execution against the homes of indigent debtors, rendering them homeless, without judicial supervision
as required by s 26(1) of the Constitution. In Jaftha, the court placed no limit on the retrospectivity of the order,
rendering all execution sales pursuant to the invalid section, as well as subsequent transfers to buyers down the
line, vulnerable to attack. The issue of retrospectivity was addressed in the subsequent judgment of the
Constitutional Court in Gundwana v Steko Development CC 2011 (3) SA 608 (CC), in which it was held that the
effect of Jaftha was not to invalidate automatically such execution sales and transfers. Individual applications for
the setting aside of such transactions are still required. This interpretation of Jaftha limited its retrospective effect
considerably, as it will often not be feasible to attack the earlier transactions.
191
(dd) Suspension of orders of invalidity

• The purpose and effect of the suspension power
Section 172(1)(b)(ii) allows a court, after finding law or conduct to be inconsistent with
the Constitution, in the interests of justice and equity, to temporarily suspend the effect
of a declaration of invalidity. According to the Constitutional Court the purpose of this
power is as follows:
Section 98(5) [of the interim Constitution; now s 172(1)(b)(ii) of the 1996 Constitution]
permits this Court to put Parliament on terms to correct the defect in an invalid law within a
prescribed time. If exercised, this power has the effect of making the declaration of
invalidity subject to a resolutive condition. If the matter is rectified, the declaration falls
away and what was done in terms of the law is given validity. If not, the declaration of
invalidity takes place at the expiry of the prescribed period, and the normal consequences
attaching to such a declaration ensue.89
When a court exercises its suspension powers under s 172(1)(b)(ii), the legislature is not
obliged ‘to rectify’ the law. Parliament (or any other competent legislature) may choose
to correct the defect in the invalidated law within the period specified. On the other
hand, a legislature can equally choose not to correct the defect, and instead take other
steps to address any detrimental effects that may result from invalidity. It can also
choose to ignore the matter altogether, which will mean that the declaration of invalidity
will come into effect on the specified date.90 If, however, the lawmaker decides to repeal
and replace the unconstitutional provision, the coming into effect of the order of
invalidity will have no consequences.
The effect of suspending an order of invalidity is that the legislation remains, for
the period of suspension, in force for all purposes. A court may grant interim relief
to a litigant pending the correction of the legislation.91 As we have seen, the
Constitutional Court has emphasised the need for effective remedies for the violation
of rights. Effective relief is, amongst other things, immediate relief.92 By its very
nature, suspended relief is delayed relief. For this reason, when the suspension order
is used, a court should give serious consideration to providing interim relief to
ameliorate the situation of the successful litigant.93
• Factors relevant to the exercise of the suspension power

When will a court suspend an order of invalidity? Ordinarily, a declaration that
legislation or conduct is invalid will have immediate effect. Accordingly, in the absence
of persuasive reasons to exercise the power to suspend, the usual effect of a finding of
unconstitutionality will therefore be the immediate invalidation of the relevant
89
Executive Council of the Western Cape Legislature (note 38 above) [106].
90
Ibid [113].
91
See Executive Council, Western Cape v Minister of Provincial Affairs 2000 (1) SA 661 (CC) [135] (directing
a particular form of application of statute in the interim period).
92
93
Interim relief is increasingly coupled with the suspension order. See, for example, Moseneke v The Master
2001 (2) SA 18 (CC) [27]; Dawood (note 10 above) [64]–[68]; Janse van Rensburg (note 52 above) [29]–[36];
First National Bank v Land and Agricultural Bank (note 56 above) [18]; Zondi v MEC for Traditional and Local
Government Affairs 2005 (3) SA 589 (CC) [135]. In other matters, such as Minister for Justice and Constitutional
Development v Nyathi 2010 (4) SA 567 (CC), the Constitutional Court eventually added interim relief when
government applied for the extension of the suspension order.
192
Remedies 8.6
legislation or conduct.94 This places a burden on a litigant seeking a suspension of an

order of invalidity (usually the state) to persuade the court to exercise its s 172(1)(b)(ii)
power in the interests of justice and equity. In Minister of Justice v Ntuli,95 it was held
that it is important that all relevant information is placed before the court when it is
asked to suspend an order of invalidity. The information must relate to the adverse
consequences of an order of invalidity and the time that will be needed to remedy the
defect in the legislation.96 As was stated in Mistry v Interim National Medical and
Dental Council of South Africa:
A party wishing the Court to make such an order must provide it with reliable information to
justify it doing so. The requisite information will necessarily depend for its detail on the
nature of the law in question and the character of the defect to be corrected. Yet, as a general
rule, a government organ or other party wishing to keep an unconstitutional provision alive
should at least indicate the following: what the negative consequences for justice and good
government of an immediately operational declaration of invalidity would be; why other
existing measures would not be an adequate alternative stop-gap; what legislation on the
subject, if any, is in the pipeline; and how much time would reasonably be required to adopt
corrective legislation. Parties interested in opposing such an order should be given an
opportunity to motivate their opposition. Legal representatives should ensure that they have
appropriate and timeous instructions on the matter, and not do their best while on their feet
or else rely on a rushed telephone call at the tail-end of the hearing.97
Generally speaking, the jurisprudence relating to the suspension of orders of invalidity
developed by the Constitutional Court with reference to the provisions of the interim
Constitution holds for the 1996 Constitution.98
The Constitutional Court has stated that the suspension order is appropriate in
cases where the striking down of a statute would leave a lacuna in the law99 or
nullify an important regulatory framework.100 Suspension is also indicated if
invalidity would result in an ‘unsupportable budgetary intrusion’.101
94
S v Bhulwana (note 70 above) [30]; Brink v Kitshoff NO 1996 (4) SA 197 (CC) [51].
95
Minister of Justice v Ntuli 1997 (3) SA 772 (CC) [41].
96
If the Minister responsible for the administration of the statute wishes to ask for the suspension order, he or
she must place sufficient information before the court to justify the order. This is why it is important for the
Minister to be notified when legislation is challenged. See Uniform Rule 10A and Parbhoo v Getz 1997 (4) SA
1095 (CC) [5]–[6]; Mistry (note 84 above) [30]; Chief Lesapo v North West Agricultural Bank (note 58 above)
[33]; Dawood (note 10 above) [15]–[17].
97
Mistry (note 84 above) [37]. The court is unlikely to make a suspension order when government had a long
time to address the issue and appears to be dragging its feet. See South African National Defence Union (note 48
above) [37]–[42].
98
With the exception perhaps of the statement in Executive Council of the Western Cape Legislature (note 38
above) [108] that the court will be more likely to exercise its powers to suspend the invalidity of
pre-constitutional legislation than post-constitutional legislation. This distinction does not make sense.
99
J v Director General, Department of Home Affairs (note 67 above) [21]; Executive Council of the Western
Cape Legislature (note 38 above) [107] (the court will be inclined to suspend the invalidity of legislation ‘where
the result of invalidating everything done under such legislation is disproportional to the harm which would
result from giving the legislation temporary validity’). In this case, the court found that ‘[w]eighing [the] limited
potential prejudice as far as the applicants are concerned against the greater prejudice to local government
generally, and the holding of elections in particular, which will result if the proclamations are declared invalid
with immediate effect, it seems clear that ‘justice and good government’ requires that Parliament be given the
opportunity if it wishes to do so, to remedy the situation; Doctors for Life (note 29 above) [214].
100
South African National Defence Force Union (note 48 above) [42]; see Moseneke (note 93 above). In terms
of item 2 of Schedule 6 to the Constitution, old order laws continue to be in force subject to repeal and
consistency with the new Constitution. In Moseneke the court was faced with manifestly racist regulation passed
under the Black Administration Act 38 of 1927, which provided for black intestate estates to be administered by
a magistrate while white estates were dealt with by the Master of the High Court. Seven years into the new order,
193
There will obviously be no suspension of invalidity where the invalidation of the

unconstitutional provision will have little or no detrimental effect. This will be the
case if the concerns about invalidation can be addressed by proper application of the
remaining provisions in a statute,102 or if the regulatory system established by the
legislation is not dependent on the particular unconstitutional provision for its
viability.103 There will also be no suspension of invalidity if it would be
unconscionable to retain the unconstitutional law, even for a limited period of time.
This will be the case when the unconstitutional provisions are so ‘clearly
inconsistent’ with a fundamental right and ‘manifestly indefensible’ under the
general limitations clause so that there is ‘no warrant for its retention, not even
temporarily’.104 Suspension is also granted when the findings of the court will
require a significant overhaul of the statute in question and the making of polycentric
choices.105
In its more recent jurisprudence, the court seldom grants ‘suspension without
more’ as such an order would result in neither justice nor equity.106 As stated above,
this race-based law was still in operation. Striking the regulation down would have meant the end of a cheap and
readily accessible process for the administration of intestate estates. The declaration of invalidity of the
regulation was therefore suspended. At the same time the provision of the Act which prevented black families
from having an intestate estate administered by the Master was to be read to permit the Master to administer such
an estate.
101
Mvumvu (note 28 above) [52].
102
Minister of Welfare and Population Development v Fitzpatrick 2000 (3) SA 422 (CC) [22]–[37].
103
See S v Bhulwana (note 70 above) [30]. See also Coetzee v Government of the Republic of South Africa
(note 31 above) [18] where the court held that the system of debt collection envisaged by s 65 of the Magistrates’
Courts Act 32 of 1944 did not depend on the sanction of imprisonment for its viability. There were a number of
other aids to judgment debt collection in the law of civil procedure, for example, property attachment and
garnishment of wages. See also Case (note 54 above) [82]–[85] where Mokgoro J stated that the invalidation of
s 2(1) of the Indecent or Obscene Photographic Matter Act 37 of 1967 would not result in a lacuna.
Uncontrollable proliferation of pornography would not ensue since regulation of sexually explicit material could
be performed in terms of the Publications Act 42 of 1974. Similar considerations applied in Magajane v
Chairperson, North West Gambling Board 2006 (5) SA 250 (CC) (search and seizure provisions of Criminal
Procedures Act 51 of 1977 remained available).
104
Coetzee v Government of the Republic of South Africa (note 31 above) [18]; S v Mbatha 1996 (2) SA 464
(CC) [30] (‘it would seem undesirable for the courts to continue applying a provision which is not only
manifestly unconstitutional, but which also results in grave consequences for potentially innocent persons in
view of the serious penalties prescribed’); De Lange v Smuts NO (note 49 above) [106] (‘it would moreover be
unconscionable to allow persons to be committed to prison unconstitutionally in future’).
105
In our view, this is what motivated the granting of the suspension order in matters such as Glenister v
President of the Republic of South Africa 2011 (3) SA 347 (CC) (legislation did not secure independence of
corruption fighting unit); Ngewu v Post Offıce Retirement Fund 2013 (4) BCLR 421 (CC) (legislation did not
provide for spousal portion of pension fund to be paid immediately at divorce and failed to give effect to ‘clean
break’ principle); Nyathi v MEC for Department of Health, Gauteng 2008 (5) SA 94 (CC) [88] (mechanism to
allow judgment creditor to execute against state assets or funds relates to complex procedures beyond the
expertise of the court); Minister of Home Affairs v Fourie 2006 (1) SA 524 (CC) [138] (question whether gay
marriage to be recognised a matter that touches on deep public and private sensibilities and Parliament well
suited to finding the best ways of bringing same-sex couples in from the legal cold; court ruling that if issue not
addressed by expiry of period of suspension, same-sex couples would be accommodated under the Marriage Act
25 of 1961).
106
Johncom Media Investments v M 2009 (4) SA 7 (CC) [37]. In this matter the court coupled the suspension
order with an interim reading-in to regulate the publication of the identity of any party or child in divorce
proceedings. In South African Liquor Traders Association v Chairperson, Gauteng Liquor Board 2009 (1) SA
565 (CC) the court read-in an interim definition of the term ‘shebeen’ in order to make the regulatory framework
workable.
194
Remedies 8.6
the Constitutional Court nowadays almost invariably couples the suspension order
with an interim regime to be applied pending legislative reform.107
• Extension of the period of suspension

Can the period of suspension be extended if the legislature needs more time to correct
the defect? This question was first answered in the affirmative in Minister for Justice
and Constitutional Development v Nyathi.108 In the subsequent matter of Zondi v MEC
Traditional and Local Government Affairs, the court summarised the factors to be taken
into account as follows:
The power to make an order that is just and equitable is not limited to the time when the
Court declares a statutory provision inconsistent with the Constitution and suspends the
order of invalidity. During the period of suspension this Court retains the power to
reconsider the continued suspension of the declaration of invalidity and the period of
suspension as well as the conditions of suspension in the exercise of its power to make an
order that is just and equitable. When the facts on which the period of suspension was based
have changed or where the full implications of the order were not previously apparent, there
seems to be no reason both in logic and principle why this Court should not, before the
expiry of the period of suspension, have the power to extend the period, if to do so would be
just and equitable.109
However, any application for an extension must be brought before the expiry date of the
suspension, because a court cannot resuscitate invalid legislation.110
(b) Declarations of rights

In terms of s 38, a court may grant a declaration of rights.111 A declaration of rights
differs from a declaration of invalidity, granted under s 172.112 The latter flows from a
finding that there is inconsistency between law or conduct and the Constitution, whereas
a declaration of rights may be granted even if no law or conduct is found to be
inconsistent with the Bill of Rights. To point out another obvious difference, a
declaration of invalidity is binding on all, while the declaration of rights is aimed at
resolving a dispute between particular parties.113
In JT Publishing v Minister of Safety and Security,114 it was held that a declaratory
order is a discretionary remedy, in the sense that the claim lodged by an interested party
107
Brümmer v Minister for Social Development 2009 (6) SA 323 (CC) [74]–[75] (suspending order
invalidating 30-day period for review proceedings set by the Promotion of Access to Information Act 2 of 2000
and putting 180-day period in place for interim).
108
Nyathi (note 93 above).
109
Zondi v MEC, Traditional and Local Government Affairs 2006 (3) SA 1 (CC) [40]. See also Minister of
Transport v Mvumvu 2012 (12) BCLR 1340 (CC) [7] (‘the power to extend will not be lightly exercised and
factors relevant to determine whether it will be just and equitable to do so include the sufficiency of the
explanation for not adhering to the original period: prejudice to be suffered if the period is not extended:
prospects of curing the defect within the extended period; the need to promote a functional and orderly state
administration. These factors must be weighed against the need to have finality in litigation’).
110
Ex parte Minister of Social Development 2006 (4) SA 309 (CC) [28]–[29].
111
This power is not explicitly conferred in respect of provisions outside the Bill of Rights. The rest of the
Constitution does not confer ‘rights’: Ex parte Speaker of the National Assembly: In re Dispute Concerning the
Constitutionality of Certain Provisions of the National Education Policy Bill 83 of 1995 1996 (3) SA 289 (CC)
[40].
112
Metrorail (note 10 above) [106].
113
NDPP v Mohamed (note 10 above) [58].
114
JT Publishing v Minister of Safety and Security 1997 (3) SA 514 (CC).
195
for such an order does not in itself oblige the court handling the matter to respond to the
question that it poses, even when that looks like being capable of a ready answer.115 In
principle, this approach to applications for a declaration of rights is supported.116
Indeed, there seems to be no reason why the jurisprudence of the courts developed under
s 19(1)(a)(iii) of the Supreme Court Act 59 of 1959, dealing with declaratory relief,
should not applied when considering such applications,117 though the constitutional
setting may at times require different or additional factors to be taken into account.118
Section 19 of the Supreme Court Act confers a power on the High Court to determine
rights or obligations even if a person cannot claim any relief as a consequence of the
determination. A similar power may be derived from s 38 of the Constitution. It may
sometimes be the only form of appropriate relief available in a particular case. In
President of the Republic of South Africa v Hugo,119 the majority of the court decided
that a Presidential pardon (which resulted in the release of certain classes of women
prisoners with young children) did not offend against the equality clause. Kriegler J
dissented, holding that the Presidential Act had infringed the equality clause by not
including male prisoners with young children. The dissent confronted the most difficult
aspect of the case: would there be an appropriate remedy to address the violation of the
right to equality? Invalidation of the pardon would have no effect: the released women
would not return to prison, and the incarcerated men would remain imprisoned.
Kriegler J therefore proposed an order merely declaring the Presidential Act to be an
infringement of the Constitution.120 While this order would not have entailed direct or
discernible consequential relief for the applicant,121 male prisoners could have indirectly
benefited from the order by, for example, using it to support an individual application
for a pardon.
The reason for the granting of declaratory orders is perhaps best explained in
Metrorail, where the Constitutional Court stated that the declaratory order is a flexible
remedy which is particularly valuable in a constitutional democracy as it allows the
courts to clarify and declare right on the one hand while leaving the decision on how
best to realise the rights to the other branches of the state.122
As far as the positive obligations imposed by socio-economic rights are concerned, as
applications for declaratory relief compel the responsible government agency to explain
why its policies are reasonable, this has the effect of holding the agency accountable.123
Initially, in the area of socio-economic rights, the Constitutional Court was content to
grant declaratory orders which specified the specific positive obligations that the state
failed to fulfil whilst some High Court judges used the more aggressive structural
interdict.124
115
Ibid [15].
116
On the facts of the case, the court’s discretion in JT Publishing was more limited, in our view. JT
Publishing concerned an attack on the validity of a statute and the application was accordingly covered by s 172
of the Constitution. Because the application was moot, the attack was not considered. If this was not the case, the
wording of s 172 would have obliged the court to declare the statutory provisions invalid.
117
See in respect of s 19 of the Supreme Court Act, the leading decision of Ex parte Nell 1963 (1) SA 754 (A).
118
Islamic Unity (note 10 above) [11]; Metrorail (note 10 above) [106].
119
Note 5 above.
120
Ibid [87]–[88].
121
Ibid [88].
122
Metrorail (note 10 above) [107]–[108].
123
Mazibuko v City of Johannesburg 2010 (4) SA 1 (CC) [159]–[161].
124
Compare the Constitutional Court’s order in Government of the Republic of South Africa v Grootboom
2001 (1) SA 46 (CC) (declaratory order coupled with instruction to the Human Rights Commission to monitor
and, if necessary,
196
Remedies 8.6
However, in the Treatment Action Campaign case,125 the court rejected the argument
that its remedial options in this are were limited to the declaratory order:
We thus reject the argument that the only power that this Court has in the present case is to
issue a declaratory order. Where a breach of any right has taken place, including a
socio-economic right, a Court is under a duty to ensure that effective relief is granted. The
nature of the right infringed and the nature of the infringement will provide guidance as to
the appropriate relief in a particular case. Where necessary this may include both the issuing
of a mandamus and the exercise of supervisory jurisdiction.126
Ultimately, the court did not exercise ‘supervisory jurisdiction’ (meaning a structural
interdict) in the Treatment Action Campaign case on the basis that there was no reason
to believe that the government would not respect the court’s order.127 Instead the court
awarded declaratory relief, combined with a number of injunctions removing existing
restrictions on the availability of the drug Nevirapine in public hospitals for preventative
treatment of HIV infection.
(c) Interdictory relief

Since both positive and negative interdicts are always directed at future events, they fit
the mould for constitutional remedies better than awards of damages. The Constitutional
Court has also expressed enthusiasm for the interdict as a constitutional remedy on
several occasions. For example, in City Council of Pretoria v Walker,128 it found that the
selective institution of legal proceedings by the council amounted to a breach of the
respondent’s constitutional right not to be unfairly discriminated against (the council did
not enforce its claims against township residents). However, the court went on to find
that the breach of the equality right did not entitle the defendants in the proceedings to
dismissal of the Council’s claims (absolution from the instance) as contended for.
Instead, the court remarked, a declaration of rights or a mandamus was appropriate to
vindicate the breach of the equality right.129
report on the efforts made by the State to comply with its s 26 obligations in accordance with the judgment) with
Grootboom v Oostenburg Municipality 2000 (3) BCLR 277 (C) (wide-ranging structural interdict in respect of
the provisions of emergency housing to homeless); compare Rail Commuters Action Group v Transnet Ltd t/a
Metrorail (1) 2003 (5) SA 518 (C) (structural interdict granted to secure safety and security of passengers on
trains) with the Constitutional Court decision on appeal in Metrorail (note 10 above) (simple declaratory
combined with statement that there is nothing to suggest that the respondent will not comply with the order).
125
Note 11 above.
126
Ibid [106].
127
Ibid [129]. The Constitution specifically authorises interim interdicts in s 172(2)(b), which permits a High
Court or the Supreme Court of Appeal to grant a temporary interdict or other temporary relief pending the
determination by the Constitutional Court of the validity of an Act of Parliament, a provincial law or conduct of
the President. This power was used in S v Ntsele (note 81 above) where, pending confirmation of its order of
invalidity by the Constitutional Court, the High Court ordered the immediate release of a person who had been
convicted in a magistrates’ court on the basis of an unconstitutional reverse onus presumption. The High Court
held that the accused was likely to suffer irreparable harm by being kept in prison until the order of invalidity was
confirmed. Only after the Constitutional Court had confirmed the order of invalidity could the High Court then
interfere with the verdict of the magistrate which had been brought before it by way of automatic review.
128
City Council of Pretoria v Walker 1998 (2) SA 363 (CC) [96].
129
See also New National Party (note 5 above) [46] where the court mentions the mandamus as the
appropriate manner to compel the Electoral Commission to comply with its constitutional obligations.
197
(i) Interim relief

The purpose of interim relief is to preserve the status quo pending the final adjudication
of a dispute. In general, in constitutional litigation, the High Courts apply the
common-law criteria pertaining to the granting of interim interdicts (a prima facie right,
well grounded apprehension of irreparable harm, no other satisfactory remedy and that
the balance of convenience favours the granting of interim relief), but they grant
temporary restraining orders against the exercise of statutory power only in exceptional
cases and when a strong case for that relief has been made out. Also, in constitutional
matters, the courts must factor in under the balance of convenience so-called ‘separation
of powers harm’, ie, the extent to which the restraining order intrudes into the exclusive
terrain of another branch of government.130
The Constitutional Court has not decided the question whether a court may suspend
the operation of an Act of Parliament by way of interim relief. In President of the
Republic of South Africa v United Democratic Movement it held that legislation does not
usually have immediate effect on persons or their rights, and where action pursuant to its
terms is ‘imminent and likely to cause serious and irreparable prejudice, in all but the
most exceptional cases, interim relief could be designed to prevent such prejudice
[without suspending the Act] pending a decision by a Court having jurisdiction to decide
on the constitutionality of the legislation’.131
(ii) Final interdicts

The common-law principles (viz, clear right, injury actually committed or reasonably
apprehended and no other form of relief available) applicable to final prohibitory
interdicts and the mandamus are also applied in the constitutional context.132 Sections 6
and 8 of the Promotion of Administrative Justice Act 3 of 2000 contain special
provisions dealing with the mandamus where unlawful administrative action consists of
the failure to take a decision.
The mandamus is particularly well-suited to give effect to the purpose of
constitutional remedies, which is to eradicate inconsistency between the Bill of Rights
and societal practices. For example, in MEC for Education, KwaZulu Natal v Pillay133
the court directed the governing body of a school, in consultation with learners, parents
and educators, to effect amendments to the school’s code of conduct to provide for the
reasonable accommodation of deviations from the code on religious or cultural grounds
and a procedure according to which such exemptions can be sought and granted (the
130
National Treasury v Opposition to Urban Tolling Alliance 2012 (6) SA 223 (CC) [41]–[47]; see also
International Trade Administration Commission v SCAW SA (Pty) Ltd 2012 (4) SA 618 (CC) [101]–[104], where
the court overturned an interim interdict that effectively extended an anti-dumping duty. The court held that the
order trenches into the constitutional terrain of the national executive and that the polycentric terrain of
international trade and foreign relations are reserved for the national executive.
131
President of the Republic of South Africa v United Democratic Movement 2003 (1) SA 472 (CC) [28]. See
also Minister of Home Affairs v Eisenberg & Associates 2003 (5) SA 281 (CC) [68] (s 172 does not empower a
court to suspend the provisions of an Act of Parliament and it is doubtful whether a court has the power to do so.
Even if the power exists, it should be used only in the most exceptional circumstances). In Kruger v President of
the Republic of South Africa 2009 (1) SA 417 (CC) the court ordered the opposite of suspending the operation of
law. The court held that the government was entitled to act in terms of improperly enacted legislation pending the
retrospective rectification thereof.
132
Pilane v Pilane 2013 (4) BCLR 431 (CC) [38].
133
MEC for Education, KwaZulu Natal v Pillay 2008 (1) SA 474 (CC).
198
Remedies 8.6
school acted unconstitutionally when prohibiting a learner from wearing a nose ring for
religious purposes).
(iii) Structural interdicts and similar relief

A‘structural interdict’ directs the violator to rectify the breach of fundamental rights
under court supervision. The structural interdict typically consists of five elements: first,
the court declares the respects in which government conduct falls short of its
constitutional obligations; second, the court orders the government to comply with the
obligations; third, the court orders the government to produce (usually under oath) a
report within a specified period of time134 setting out what steps it has taken, and what
future steps will be taken; four, the applicant is afforded an opportunity to respond to the
report; finally, the matter is enrolled for a hearing and, if the court is satisfied, the report
is made an order of court. A failure to comply with obligations as set out in the court
order will then amount to contempt of court.
From an early stage of the development of our constitutional jurisprudence, the High
Courts have granted structural interdicts as a form of relief in cases dealing with
socio-economic rights and rights entailing similar forms of positive obligations on the
state.135 The Constitutional Court initially granted only limited forms of structural
interdicts,136 but this has changed dramatically over the last number of years. Especially
in eviction matters, the Constitutional Court has resorted to ‘supervision and
engagement’ orders in order to protect the negative component of the right to
housing.137 The court has ordered the parties in these matters to ‘engage meaningfully’
regarding a timetable for eviction and relocation and to report back to the court on any
agreement reached so that it can be made an order of court, if appropriate.138 The court
has set standards for temporary accommodation and, on occasion, even ordered that a
specific percentage of new low-cost housing be allocated to the evictees.139
The structural interdict is arguably the only really effective remedy in such matters.
Furthermore, as remarked by Plasket J, in a decision aimed at correcting systemic
difficulties that made it difficult to implement a sentence of committing a juvenile to
reform school, ‘the structural interdict is particularly suited to a society committed, as
ours is, to the values of “accountability, responsiveness and openness” in a system of
democratic governance’.140 By granting the structural interdict along the lines suggested
above, a court will at least ensure a government ‘response’ in the form of the ‘report’ to
134
The period may be extended, on application, if it is in the interest of justice to do so. See Sibiya v DPP, Jhb
2005 (5) SA 315 (CC) [7]–[9].
135
See Strydom v Minister of Correctional Services 1999 (3) BCLR 342 (W); City of Cape Town v Rudolph
2004 (5) SA 39 (C); Treatment Action Campaign v Minister of Health 2002 (4) BCLR 356 (T); EN v Government
of RSA 2007 (1) SA BCLR 84 (D).
136
Minister of Home Affairs v NICRO 2005 (3) SA 280 (CC) and August v Electoral Commission 1999 (3) SA
1 (CC) (‘directing steps to be taken to allow prisoners to register and vote in elections’).
137
Regarding engagement, see Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC);
Occupiers of 51 Olivia Road, Berea Township and 197 Main Street, Johannesburg v City of Johannesburg 2008
(3) SA 208 (CC) [14]. This order was also employed in a spoliation application in order to supervise the return of
residents to homes which had been declared unsafe. See Schubart Park Residents’ Association v City of Tshwane
Metropolitan Municipality 2013 (1) SA 323 (CC).
138
Residents of Joe Slovo Community, Western Cape v Thubelisha Homes 2010 (3) SA 454 (CC) [7].
139
Ibid.
140
S v Z and 23 similar cases 2004 (4) BCLR 410 (E) [39].
199
the court and thereby an ‘account’ for a failure to comply with a positive obligation
imposed by the Bill of Rights.141
However, any attempt strictly to supervise the implementation of a proposed scheme
may result in the courts becoming entangled in the day-to-day business of governance, a
task for which the judicial branch of government is ill-suited. A court, once it has
assumed this role, may find it difficult to later extricate itself. The ‘effectiveness’ of the
remedy is therefore also its weakness. Moreover, the principle of separation of powers
requires not only deference to the legislature, when a court devises a remedy, but also
respect for the function constitutionally assigned to the executive. It is therefore
important to devise the terms of the interdict in a flexible manner that does not result in
supervision becoming too intrusive or in a blurring of the distinction between the
executive and judicial functions.
(d) Damages
Nothing in the Constitution prevents a court from awarding damages as a remedy for the
violation of fundamental rights. However, the jurisprudence of the Constitutional Court
has not been particularly encouraging. As we have seen, in principle, constitutional
remedies should be forward-looking, community-orientated and structural. An award of
damages is not, however, a forward-looking remedy. Rather, it requires a court to look
back to the past in order to determine how to compensate the victim or even to punish
the violator.
There is the further difficulty, referred to by the Constitutional Court in Steenkamp
NO, which is that the breach of a constitutional or statutory duty is not wrongful in the
delictual sense for that reason alone.142 In addition, it must be reasonable (in the court’s
appreciation of the sense of justice of the community) to compensate the plaintiff. This
will be the case where the administrative decision is taken in bad faith or under corrupt
circumstances or completely outside the legitimate scope of the empowering
provision.143
Despite this difficulty, there is nevertheless room for the development of damages as
a remedy for certain violations of fundamental rights. There are at least two reasons why
such a remedy is necessary. First, there are certain situations where a declaration of
invalidity or an interdict makes little sense and an award of damages is then the only
form of relief that will ‘vindicate the fundamental right and deter future infringements’.
For example, a farmer may force workers to work on election day and, as a result,
prevent them from voting. Or, politicians may instruct the police to break up a lawful
demonstration when it is about to begin and, as a result, the demonstration does not take
place. Or, a devout Christian may be prevented from attending a church service on
Christmas Day. In these types of situations, where the victim has missed a unique
opportunity to exercise a fundamental right, a bare declaration of rights is too weak and
an award of damages is the only effective remedy.144 Secondly, the possibility of a
substantial award of damages may encourage victims to come forward and litigate,
141
See also Sibiya (note 134 above) (court ordering mandamus with supervisory jurisdiction in respect of
conversion of death sentences imposed under previous dispensation to appropriate sentences).
142
Steenkamp NO v Provincial Tender Board, Eastern Cape 2007 (3) SA 1210 (CC) [37]–[40].
143
Ibid [55].
144
See also Sanderson (note 4 above) [39], where the court mentions the possibility of damages after acquittal
as a possibility when a delay in prosecution results in prejudice to the accused.
200
Remedies 8.6
which may in itself serve to vindicate the Constitution and to deter further
infringements.
The High Courts and, on one occasion, the Supreme Court of Appeal, have awarded
‘constitutional damages’ in circumstances where no other form of relief seems effective
or appropriate. We discuss these cases, dealing with maladministration of social
assistance grants and the failure to evict squatters from private property, further below.
We first consider the general approach to constitutional damages set out by the
Constitutional Court in Fose v Minister of Safety and Security. Thereafter, we briefly
mention the development of new claims for damages through the indirect application of
the Bill of Rights. In this area the Constitutional Court has led the way with the
ground-breaking decision of Carmichele v Minister of Safety and Security145 with a
number of judgments following suit, considerably expanding the liability of the state for
personal injuries resulting from negligent conduct. Thus far, a similar expansion in
respect of pure economic loss for negligent administrative decision-making has not
taken place.
(i) General principles

In Fose, the plaintiff sued the Minister for damages suffered as a result of alleged assault
and torture at the hands of the police. The plaintiff claimed under the usual delictual
heads of damage: pain and suffering, loss of amenities of life and shock, contumelia and
past and future medical expenses. However, in addition to these damages, the plaintiff
sought ‘constitutional damages’ for the infringement of his constitutional right to
dignity and the right not to be tortured. To back up the claim for constitutional damages,
the plaintiff alleged that there were widespread and persistent infringements of
fundamental rights by members of the Vanderbijlpark police station. The plaintiff
argued that, under the common law, damages were intended to provide compensation
for harm caused to one private party by the wrongful action of another. The public law
action for constitutional damages, on the other hand, had the following objectives in
addition to the objective of compensation of the victim:
1. The vindication of the fundamental right itself so as to promote the values of an
open and democratic society based on freedom and equality and respect for human
rights.
2. The deterrence and prevention of future infringements of fundamental rights by
the legislative and executive organs of state at all levels of government.
3. The punishment of those organs of state whose officials have infringed
fundamental rights in a particularly egregious fashion.146
The Constitutional Court held that, in this case, an award of constitutional damages in
addition to delictual damages would not be appropriate. Delictual damages were
considered by the court to be an adequate vindication of the plaintiff’s constitutional
rights.147 On the issue of punitive damages, it held that it was not persuaded that such
damages would effectively deter the police from torturing suspects.148 In a country
145
2001 (4) SA 938 (CC).
146
147
Ibid [67].
148
Ibid [71]. Kriegler J stated ([102]–[103]) that where there are systematic, pervasive and enduring
infringements of constitutional rights, delictual relief compensating a particular plaintiff may not be adequate as
201
where there is a great demand on scarce public resources, it was inappropriate to use
them to pay punitive damages to plaintiffs who were already compensated by delictual
damages for the injuries caused to them.149 The funds could be better employed in
structural and systemic ways to eliminate or substantially reduce the causes of
infringements.150
Fose established the following general principles:
(1) In cases where the violation of constitutional rights entails the commission of a
delict, an award of damages in addition to those available under the common law
will seldom be available151 as it will amount to the awarding of punitive damages.
While the court held that remedies must be effective, particularly in a country
where so few have the means to enforce their rights through the courts,152 a
negative attitude towards punitive damages permeates the majority judgment of the
court.153
(2) Even in circumstances where delictual damages are not available, constitutional
damages will not necessarily be awarded for a violation of human rights. The
majority judgment of Ackermann J in Fose blows hot and cold on this issue.
The court started out positively, by stating that there is no reason in principle
why ‘appropriate relief’ should not include an award of damages, where such an
award is necessary to protect and enforce the Bill of Rights.154 But, later in the
judgment, the court expressed considerable doubt whether, even in the case of
the infringement of a right that does not cause delictual damage to the plaintiff,
an award of constitutional damages would be appropriate. It said that perhaps a
declaratory order combined with a suitable costs order would be sufficient to
vindicate the right if no other remedy is appropriate.155
The negativity regarding pure ‘constitutional damages’ does not apply to the
development of new claims under the law of delict to give effect to the values contained
in the Bill of Rights. On the contrary, in this regard the court observed that the South
African law of delict is flexible and will, in most cases, be broad enough to provide all
the relief that would be ‘appropriate’ for a breach of constitutional rights.156 As we shall
illustrate directly below, not too long after Fose, the court made good on the promise to
develop existing delictual remedies, in the case of Carmichele.157 One should bear in
a means of vindicating the Constitution and deterring future violations of it. In Fose, however, the policemen
implicated would not be deterred by a payment of damages from the public coffers which does not affect their
own finances. See also Didcott J at [84]. The payment is also made to the plaintiff alone and not to those who
suffered as a result of the widespread violations. Didcott J added that when punitive damages are awarded against
a private defendant, the deterrent effect will be greater ([87]).
149
Ibid [72].
150
Ibid.
151
This goes almost without saying. Often the invalidation of the offending legislation or state conduct will be
the appropriate remedy.
152
153
Ibid. The court endorses a list of 13 points of criticism against punitive damages at [65] and [71].
154
Ibid [60] and [74]. The court leaves the question of damages for breach of other rights open, but
immediately adds that it also does not decide on the ‘creative fashioning of constitutional remedies which does
not sound in money’.
155
Ibid [68].
156
Ibid [58]. The court refrained from commenting on whether, from a constitutional perspective, vicarious
liability is an adequate or acceptable basis for state liability.
157
Note 145 above.
202
Remedies 8.6
mind, as the SCA held in Von Abo, that a party should show that his or her loss was
causally connected to the breach of a constitutional right, before an award of damages
can be considered.158
(ii) Indirect application and the development of new damages claims

We discuss in Chapter 12 below the dramatic impact that s 12 of the Constitution (the
right to freedom and security of the person) has had on the development of personal
injury law in South Africa.159
The Promotion of Administrative Justice Act 3 of 2000 allows a court in review
proceedings, in exceptional cases and in addition to setting aside a decision, to direct an
administrator or any party to the proceedings to pay compensation.160 A cautious
approach has been adopted in claims for pure economic loss resulting from negligent
administrative decision-making. The Supreme Court of Appeal has rejected a claim for
loss of profit resulting from the alleged negligent award of a tender to another161 and a
claim for damages resulting from delay caused by an unlawful land-use planning
decision.162 However, loss of profit has been awarded in a case where a tenderer had
been fraudulently deprived of winning a tender.163 For the moment this seems to be the
dividing line (it is necessary to show intentional wrongdoing), at least as far as claims
for loss of profit (the profit to be made on the tender) are concerned.164 Out-of-pocket
expenses (the costs of the materials and resources used) are normally minimal in this
type of situation where the complainant applied for a statutory permission or tendered
for government work and negligent administrative decision-making caused him or her to
fail. Arguably, a claim for these amounts should be considered favourably even in cases
of mere negligence, as opposed to intentional wrongdoing.
(iii) Damages claims derived directly from the Constitution

Two types of damages claims have been derived directly from the Constitution.
In the Modderklip cases, a large group of people illegally occupied a portion of a
farm. By the time the land owner was granted an eviction order the numbers of
occupiers had grown to 36 000, and the Sheriff insisted on payment of a deposit of
R1,8 million to execute the eviction because it required the assistance of private
contractors. The state refused to contribute to the costs of eviction. The High Court
158
Von Abo (note 32 above) [33]. In this matter the loss suffered (value of farms confiscated in Zimbabwe) was
not causally connected to the failure of the South African government to provide diplomatic protection to Von
Abo.
159
See para 12.1(e) in Chapter 12 below. There is no similar development on the horizontal level. In other
words, the common-law liability of private persons has not been expanded. See, for example, Wagener v
Pharmacare Ltd 2003 (4) SA 285 (SCA) (no strict liability for manufacturer that produced a defective product
that resulted in injury).
160
Section 8(1)(c)(ii)(bb).
161
Olitzki Property Holdings v State Tender Board 2001 (3) SA 1247 (SCA).
162
Premier, Western Cape v Fair Cape Property Developers (Pty) Ltd 2003 (6) SA 13 (SCA).
163
Transnet Limited v Sechaba Photoscan (Pty) Ltd 2005 (1) SA 299 (SCA).
164
See, also, the High Court decision in Telematrix (Pty) Ltd v Advertising Standards Authority of SA [2005] 2
All SA 97 (W) holding that damages caused by the Advertising Standards Authority wrongly ordering plaintiff to
withdraw an advertisement were not actionable, short of an allegation that the decision was taken in bad faith.
Reliance was placed on the decision in Knop v Johannesburg City Council 1995 (2) SA 1 (A), in which the court
held that the existence of an internal appeal negatives the existence of a common law duty of care owed by the
functionary to a person affected by a decision.
203
granted a structural interdict, ordering the government to produce a plan to end the
unlawful occupation and find alternative accommodation for the squatters.165 The
Supreme Court of Appeal came up with a more imaginative order, declaring that the
fundamental rights of both the land owner (property) and the squatters (housing) had
been impaired, that the squatters were entitled to remain on the land until alternative
accommodation was made available by the local government, and that the land owner
was entitled to constitutional damages calculated in terms of the Expropriation Act 63 of
1975 for the loss of use of the land during the period for which the land had been
occupied and that the state had failed to provide alternative land for the occupiers.166
This order was upheld by the Constitutional Court, which held that the award of
compensation was the most appropriate remedy in the circumstances of the case.167
The second line of cases emerged as a result of delays in the processing of social
assistance grants under the Social Assistance Act 59 of 1992. The litigation had a long
build-up. By the mid-1990s corruption between officials and applicants for grants was
rife in the provinces of the Eastern Cape and KwaZulu-Natal. As a result, the Eastern
Cape government attempted to remove ‘ghost’ beneficiaries from its system by
suspending the payment of grants and requiring every recipient to re-register before
their benefits were reinstated. This was the factual background to the important decision
of the Supreme Court of Appeal in Permanent Secretary, Department of Welfare,
Eastern Cape v Ngxuza.168 In this case and a number of others, beneficiaries
successfully challenged the terminations of their grants in the High Court on the basis
that their grants had been terminated without affording them a hearing.169
An avalanche of litigation was to follow. Faced with increasing numbers of
applicants for welfare grants, the two provinces soon started to fall behind with the
processing of the applications. This generated the second phase of litigation. Rather than
granting the usual mandamus remedy where there was delay, the courts started to
substitute their own decisions for those of government on a wide scale. If a decision was
not made within a reasonable time, the High Courts were prepared, as a form of
‘constitutional relief’, to approve social assistance grants themselves, in addition
ordering government to make available back-payment and interest.170 To an extent, the
courts became an alternative forum for the processing of social assistance grants. This
approach was criticised by the Supreme Court of Appeal (per Conradie JA) in Jayiya v
MEC for Welfare, Eastern Cape,171 albeit in an obiter dictum, on the basis that these
orders ignored the provisions of the Promotion of Administrative Justice Act, which
provides for compensation to be awarded only in exceptional circumstances. Ultimately
the matter only reached the Constitutional Court in the limited sense of an application
165
Modderklip Boerdery (Edms) Bpk v President of the RSA 2003 (6) BCLR 638 (T).
166
President of the Republic of South Africa v Modderklip Boerdery (Pty) Ltd 2004 (6) SA 40 (SCA).
167
President of the RSA v Modderklip Boerdery (Pty) Ltd 2005 (5) SA 3 (CC) [65].
168
Permanent Secretary, Department of Welfare, Eastern Cape v Ngxuza 2001 (4) SA 1184 (SCA). See the
discussion of the decision in para 4.2(d)(iii) in Chapter 4 above.
169
See the decisions of the High Court in Ngxuza v Permanent Secretary, Department of Welfare, Eastern
Cape 2001 (2) SA 609 (E) and Bushula v Permanent Secretary, Department of Welfare, Eastern Cape 2000 (2)
SA 849 (E).
170
See Mahambehlala v MEC for Welfare, Eastern Cape 2002 (1) SA 342 (SE); Mbanga v MEC for Welfare,
Eastern Cape 2002 (1) SA 359 (SE); Bacela v MEC for Welfare (Eastern Cape Provincial Government) [1998] 1
All SA 525 (E).
171
Jayiya (note 14 above).
204
Remedies 8.6–8.7
for reinstatement of a grant unlawfully terminated, plus back-pay and interest, which
was granted by the Constitutional Court unanimously.172
The next difficulty that arose in a number of cases was that the Eastern Cape and
Kwazulu-Natal provincial governments failed to pay the awards of constitutional
damages that had been ordered.173 This generated another phase of litigation, dealing
with contempt of court, which we discuss in para 8.7(a) directly below.
The judicial response in both provinces was ultimately to adopt certain pre-litigation
practice directives, aimed at ensuring that litigation is avoided if possible, through
appropriate engagement with the State Attorney’s office.174 The political response was
to create a new national agency (SASSA) to deal with the administration of social
grants.
In both the Modderklip situation and that of the social assistance cases, the choice is
essentially one between awarding constitutional damages to individual litigants and
structural relief, aimed at addressing the systemic problem that caused the
infringements. The former may appear to be an effective short-term remedy from a
litigant’s perspective, but it does not sit well with the purpose of constitutional relief,
which is forward-looking and community-orientated.
8.7 OTHER FORMS OF RELIEF
(a) Contempt of court

In general, non-compliance with mandatory court orders may be enforced by seeking an
order declaring respondents (including government officials named in a court order) to
be in contempt of court and seeking the imposition of a criminal sanction (fine or
imprisonment) against them.175 In such a case it is usual to first issue a rule nisi, in order
to allow the target of the order to show cause why he or she should not be held in
contempt, before imposing a sanction.176 A conviction of contempt of court entails the
court hearing evidence that establishes beyond a reasonable doubt that the respondent
did not comply with a court order and that failure to comply was wilful and mala
fides.177
As far as court orders for the payment of money are concerned, the common-law
position is that a judgment debtor may not be held in contempt of court for failing to
comply with an order to pay money. In the social assistance cases in the Eastern Cape,
the judiciary has ‘developed’ this part of the common law to provide for a contempt of
court remedy in cases where the provincial government did not comply with money
172
Njongi v MEC, Department of Welfare, Eastern Cape 2008 (4) SA 237 (CC).
173
A new Social Assistance Act 13 of 2004 came into force and the South African Social Security Agency
(‘SASSA’) was established. SASSA became the service provider in respect of the administration of social
assistance and the wave of litigation has subsequently diminished.
174
See Cele v South African Social Security Agency 2009 (5) SA 105 (D) [28]–[34].
175
See Federation of Governing Bodies of South African Schools (Gauteng) v MEC for Education, Gauteng
2002 (1) SA 660 (T); Lombard v Minister van Verdediging 2002 (3) SA 242 (T).
176
Hardy Ventures CC v Tshwane Metropolitan Municipality 2004 (1) SA 199 (T); Eveleth v Minister of Home
Affairs 2004 (11) BCLR 1223 (T).
177
Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA).
205
orders.178 This development was overturned by the Supreme Court of Appeal in Jayiya v
MEC for Welfare, Eastern Cape,179 inter alia on the basis that the courts cannot
retrospectively develop a new criminal offence and that it would be unfair to hold a
government official in contempt of court for failing to pay the state’s debts whereas that
same person cannot be held in contempt for failing to pay his or her own personal debts.
The debate continues. Froneman J, then sitting as a single judge in the South Eastern
Cape Local Division, was critical of the SCA decision in Jayiya. Jayiya, he held, places
the state above the law, since the result is a situation where there is no way to ensure that
the state complies with a money order.180
The State Liability Act 20 of 1957 precludes execution against state assets because of
the disruption it may cause to the performance of state functions. As there were no other
options of holding state officials accountable,181 an attack on the constitutionality of the
State Liability Act inevitably followed. In Nyathi v MEC for Department of Health,
Gauteng182 the court held that the then existing procedures to secure the satisfaction of
judgment debts against the state were ineffective and ordered Parliament to rectify the
procedures. The court, however, appeared to pour cold water on the idea of holding state
officials directly liable for contempt of court for the failures of organs of state to comply
with court orders. ‘Generally’, the court held, ‘relevant state departments are in the best
position to assess the magnitude of the problems faced by their personnel and are
similarly in the best position to address the systemic failure of State officials to perform
their duties. These State institutions need to look at these failings holistically and
consider the best manner in which to deal with the problems at hand’.183
(b) Exclusion of evidence

The exclusion of evidence obtained in violation of fundamental rights will in many
cases, both civil and criminal, constitute appropriate relief.184
(c) Administrative law and labour law remedies

In so far as unconstitutional conduct qualifies as administrative action in terms of the
Promotion of Administrative Justice Act, the remedies provided for in the Act, such as
the setting aside of decisions, the substitution of decisions and compensation in
exceptional cases, also apply in constitutional cases.185 The same is true for labour law
remedies provided for in labour relations legislation, such as reinstatement.186
178
See Mjeni v Minister of Health and Welfare, Eastern Cape 2000 (4) SA 446 (Tk); East London LTC v MEC
for Health, Eastern Cape 2001 (3) SA 1133 (Ck).
179
Note 14 above [16]–[18].
180
Kate v MEC for the Department of Welfare, Eastern Cape 2005 (1) SA 141 (SE).
181
For example, by utilising the provisions of the Public Finance Management Act 1 of 1999 and the
Municipal Finance Management Act 56 of 2003 to discipline or prosecute those responsible for failing to comply
with court orders.
182
Note 93 above.
183
Ibid [78]. But see Mchunu v Executive Mayor, Ethekwini Muncipality 2013 (1) SA 555 (KZD) (order
granted requiring declaring mayor, municipal manager and director of housing of municipality to take steps to
comply with earlier court order because ‘they are the functionaries of the . . . [city] and have the power and duty
to ensure that the . . . [city] complies with the court order’).
184
See further Chapters 14 and 32 below.
185
See further Chapter 29 below.
186
See Hoffmann (note 21 above).
206
Remedies 8.8
8.8 REMEDIES FOR PRIVATE VIOLATIONS OF RIGHTS

Section 8(3) lays down guidelines for courts to apply when the Bill of Rights is directly
applied to private conduct without prescribing any particular type of relief for private
violations of fundamental rights. Rather, it directs the court to existing legislation and
the common law to find ‘constitutional remedies’ for the private violation of
fundamental rights. Section 8(3) provides that when applying the Bill of Rights to
private conduct a court must apply, or if necessary develop, the common law to the
extent that legislation does not give effect to a particular right. In addition, the court may
develop rules of the common law to limit the right, provided that the limitation is in
accordance with s 36.
The subsection clearly envisages that a court must first seek a constitutional remedy
for the private infringement of a fundamental right in legislation, failing which the court
must seek the remedy in the existing common law, failing which the court must develop
the common law to give effect to the right. In other words, s 8(3) directs a court to look
for a ‘constitutional remedy’ in the ordinary law and, if there is none, to develop one.
Section 8(3) recognises that often constitutional remedies may be found in the
ordinary law and that it would undermine the efforts of the legislatures and the
common-law courts to ignore such remedies in favour of remedies directly derived from
the Constitution. Similar concerns of course underlie the principle of avoidance of
constitutional issues, which requires complainants to exhaust ordinary forms of relief
before directly invoking the Constitution. But s 8(3) does not simply reiterate this
principle. If it did, it would negate the direct application of the Bill of Rights to private
conduct, which is explicitly provided for in s 8(2). Rather, s 8(3) presupposes that the
possibilities of obtaining ordinary legal relief have been exhausted, at least to the
satisfaction of the court, including the possibility of an indirect application of the Bill of
Rights. It also presupposes that a court has found private conduct to be inconsistent with
the Bill of Rights. Section 8(3) then dictates that the ordinary law must be revisited in
order to seek an appropriate ‘constitutional’ remedy. If an ordinary legal remedy has
been awarded, the court must ‘check’ whether the ordinary remedy gives proper effect to
the fundamental rights. If the ordinary remedy is not appropriate, or if no ordinary legal
remedy has been awarded, a ‘constitutional’ remedy must be awarded.
For example, say a private person prevents a registered voter from voting. To remedy
the violation of rights, the voter must first exhaust ordinary legal remedies. The
Electoral Act creates several criminal offences to prevent horizontal infringements of
political rights.187 A court may hold that the statutory prohibition of interfering with a
person’s choice to vote affords the voter an ‘ordinary legal remedy’ which must first be
exhausted. Under the ordinary law a voter’s ‘remedy’ would then be to lay a charge,
alleging that a criminal offence has been committed. The voter may also motivate for a
new ordinary legal remedy, with the help of the indirect application of the Bill of Rights.
The voter may, for example, argue that the actio iniuriarum must be developed to afford
her relief or that she must be awarded presumed general damages under the Aquilian
action.
When these possibilities are exhausted, whether successfully or not,188 the voter may
187
See ss 87–94 read with ss 97–99 of the Electoral Act 73 of 1998.
188
As for the possibility of laying a charge, a court may hold that this is not a ‘remedy’ and that it does not
have to be exhausted. A court may also hold that it has been exhausted as soon as the charge is laid with the
207
invoke her s 19 right to vote directly. In other words, the way is now open for a direct
application of the Bill of Rights to private conduct. The first step is to consider whether
the remedies awarded to the applicant already sufficiently address the violation of the
fundamental right to vote. A court may for example consider the provisions in the
Electoral Act to be ‘appropriate’ to give effect to s 19. If not, the ‘appropriateness’ of
existing common-law remedies, or the new remedies that were developed by indirectly
applying the Bill of Rights must be considered. If no ordinary legal remedy was awarded
to the applicant which also gives effect to her fundamental right to vote, the court must
revisit the statutes, the common law and, if necessary, develop a new remedy (for
example, a damages award) that is appropriate to give effect to the constitutional right.
appropriate authorities. The mere existence of a criminal sanction in legislation in respect of an act or omission
does not exclude the institution of civil proceedings: SA National Parks v Ras 2002 (2) SA 537 (C). As to the
actio iniuriarum, a court may even decide that intention is not always part of the actio iniuriarum or that it is
presumed to be present unless the contrary is shown (for example, unlawful arrest or defamation by the media)
and that it is capable of an extension that holds violators strictly liable. The state of mind of the violator could
however be important when determining the amount of damages.
208
Chapter Nine
Equality*
9.1 The constitutional committment to equality . . . . . . . . . . . . . . . . . . . . . . . . . . . 210
(a) The concept of equality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210
(b) The historical and social context of the right to equality . . . . . . . . . 211
(c) Formal and substantive equality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213
9.2 Interpreting section 9. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215
(a) Section 9 compared to section 8 of the interim Constitution . . . . . 215
(b) The stages of enquiry. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215
(c) The relationship between section 9 and section 36 . . . . . . . . . . . . . . . 217
9.3 ‘Mere differentiation’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218
(a) Differentiation and discrimination distinguished. . . . . . . . . . . . . . . . . . 218
(b) Rationality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219
(c) Section 9(1) and ‘rule of law rationality’ . . . . . . . . . . . . . . . . . . . . . . . . . 222
(d) Differentiation between provinces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 222
9.4 Discrimination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 222
(a) The concepts of discrimination and unfair discrimination . . . . . . . . 222
(b) Unfair impact. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223
(c) The presumption of unfair discrimination . . . . . . . . . . . . . . . . . . . . . . . 224
(d) Fair discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224
(e) Unfair discrimination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225
(f) The listed grounds. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227
(i) Race, colour, ethnic origin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227
(ii) Gender, sex, pregnancy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227
(iii) Sexual orientation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228
(aa) Decriminalisation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228
(bb) Exclusion of persons in same-sex relationships from
benefits accorded to married persons . . . . . . . . . . . . . . . . . . . 229
(cc) Exclusion of persons in same-sex relationships from
the institution of marriage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230
(iv) Marital status. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 232
(v) Age. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233
(vi) Disability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 234
(vii) Religion, conscience and belief, culture and language. . . . . . . 235
(viii) Birth and social origin. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 235
(g) Not defamatory to depict someone as having any of the
characteristics in the listed grounds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 236
(h) The analogous grounds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 236
* This chapter was revised for the sixth edition by Tembeka Ngcukaitobi, Advocate, Johannesburg Bar.
209
(i) Direct and indirect discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 238

(j) Discrimination need not be intentional . . . . . . . . . . . . . . . . . . . . . . . . . . . 240
9.5 Affirmative action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241
9.6 The Promotion of Equality and Prevention of Unfair Discrimination
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 244
(a) Prevention of unfair discrimination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 245
(b) Access to justice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247
(c) Promotion of equality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 248
Equality
9. (1) Everyone is equal before the law and has the right to equal
protection and benefit of the law.
(2) Equality includes the full and equal enjoyment of all rights and
freedoms. To promote the achievement of equality, legislative and
other measures designed to protect or advance persons, or categories
of persons, disadvantaged by unfair discrimination may be taken.
(3) The state may not unfairly discriminate directly or indirectly
against anyone on one or more grounds, including race, gender, sex,
pregnancy, marital status, ethnic or social origin, colour, sexual
orientation, age, disability, religion, conscience, belief, culture language
and birth.
(4) No person may unfairly discriminate directly or indirectly against
anyone on one or more grounds in terms of subsection (3). National
legislation must be enacted to prevent or prohibit unfair discrimination.
(5) Discrimination on one or more of the grounds listed in subsection
(3) is unfair unless it is established that the discrimination is fair.
9.1 THE CONSTITUTIONAL COMMITMENT TO EQUALITY
(a) The concept of equality

Equality is a difficult and deeply controversial social ideal. At its most basic and
abstract, the formal idea of equality is that people who are similarly situated in relevant
ways should be treated similarly. Its logical correlative is the idea that people who are
not similarly situated should be treated dissimilarly. For example, it is generally thought
wrong to deny women the vote. This is because, when it comes to voting, men and
women are in all relevant respects in the same position; they are equally capable of
exercising political choices. So, if men and women are alike, they should be treated
alike. At the same time, it is generally not thought wrong to deny children the vote. This
is because children and adults are not in the same position when it comes to their ability
to exercise political choices. Because adults and children are not alike, a law restricting
the franchise to adults is therefore usually thought to be justifiable.
But it is not the basic and abstract idea of equality that is so difficult and
controversial. Instead, it is two issues ancillary to the idea of similar treatment for
similar people that prove so taxing. The first is the issue of what counts as relevant when
210
Equality 9.1
it comes to determining the similarity of peoples’ situation. For example, is it relevant

that men tend, on the whole, to be physically stronger than women when deciding
whether or not to conscript only men into the army? In other words, when it comes to the
ability to perform military service, are men and women similarly situated (in which case
we must treat them the same) or dissimilarly situated (in which case conscripting men
and not women is justified).1 The second issue is what constitutes similar treatment of
people who are similarly situated. For example, we might think it wrong to deny
education to blind children. Blind and sighted children are in all relevant respects in the
same position and should be treated the same when it comes to access to education. But
is it sufficient simply to give blind children a right of access to the same schools as
sighted children? Or does our commitment to equality (which includes the idea that
people who are different in significant ways should not be treated the same as everyone
else) require us to create special schools or special programmes which take into account
the particular educational needs of blind children?
The Constitution requires us to grapple with these difficult issues. It commits the state
to the goal of achieving equality.2 It tells us that the type of society that it wishes to
create is one based on equality, dignity and freedom. Section 9, the first right in the Bill
of Rights, protects a right to equality. This comprises a guarantee that the law will
protect and benefit people equally and a prohibition on unfair discrimination. ‘Equality’,
we are told by s 9(2), ‘includes the full and equal enjoyment of rights and freedoms’. To
this end, special measures may be taken to ensure the protection or advancement of
people who have been disadvantaged by discrimination in the past.
(b) The historical and social context of the right to equality

Like all the constitutional rights, the constitutional guarantee of equality must be
interpreted contextually.3 This entails a historical understanding of the type of society
that South Africa once was and against which the new Constitution has set itself. The
importance of the equality right to the post-apartheid constitutional order is obvious.
The apartheid political and legal system were squarely based on inequality and
discrimination. Apartheid dealt with the problem of scarce resources by systematically
promoting the socio-economic development of the white population at the expense of
the rest of the society.4 As the Constitutional Court has pointed out, apartheid
systematically discriminated against black people in all aspects of social life.
Black people were prevented from becoming owners of property or even residing in areas
classified as ‘white’, which constituted nearly 90 per cent of the land mass of South Africa;
senior jobs and access to established schools and universities were denied to them; civic
amenities, including transport systems, public parks, libraries and many shops were also
closed to black people. Instead, separate and inferior facilities were provided. The deep scars
of this appalling programme are still visible in our society.5
1
This issue was considered by the US Supreme Court in Rostker v Goldberg 453 US 57 (1981) (conscription
of men only is not a denial of equal protection; women are excluded from combat by military policy and
therefore are not similarly situated to men when it comes to conscription).
2
Section 1(a).
3
See Chapter 6 above.
4
See Terreblanche History of Inequality.
5
Brink v Kitshoff NO 1996 (4) SA 197 (CC) [40] (O’Regan J).
211
The ‘deep scars’ of decades of systematic racial discrimination can be seen in all the key
measures of quality of life in South Africa. White South Africans are significantly
healthier and better nourished than their black fellow-citizens. They enjoy relatively
high standards of literacy and education.6 Infant mortality rates and life expectancy
among black South Africans are equivalent to those of the poorest nations of the world.7
Wealth and poverty are notoriously unequally distributed.8 South Africa contends also
with a long-embedded culture of patriarchy which, combined with apartheid, has
ensured that African women are at the bottom of the socio-economic heap.9
The constitutional commitment to equality also entails recognising the shifting
patterns of inequality. While race remains a deeply entrenched proxy for inequality,
this can no longer be taken for granted in all contexts. Since the fall of apartheid in
the late 1990s, as a result of various state policies, inter-racial inequality has been on
the decline while intra-racial inequality has been on the rise.10 According to
Terreblanche11 one of the most ‘remarkable’ developments over the past 20 years is
the enrichment of the top 20 per cent of African households and the impoverishment
of the bottom 40 per cent. While the income of the top 20 per cent of Africans
households (about 6 million people) increased by more than 60 per cent, that of the
bottom 40 per cent (about 18 million people) declined by almost 60 per cent. In
certain quarters there is some degree of cynicism about the development of the
‘black elite’. Terreblanche, however, considers this ‘a healthy phenomenon’ without
which a new South Africa would not have been possible.
This development underscores a broader challenge for the theorisation of the
constitutional commitment to equality. This is the fact that the development of the
black elite (including the middle class) has coincided with the development of a
significant black underclass. As such, race-based discourses on ‘inequality’ tend to
mask the truth about the black superclass/underclass dynamic which is more
reflective of South Africa’s post-apartheid society. Inequality can no longer be
explained by reference to race alone. Class is emerging as a strong point of reference
for inequality. According to Seekings and Nattrass the socio-economic transformation
of post-apartheid South Africa is characterised by the segmentation of society into
three distinct tiers.12 The upper tier that comprises professionals and management has
significantly deracialised and is exposed to better economic opportunities and better
lifestyles. The middle tier, comprising semi-professionals, white collar workers and
the working class is also increasingly racially mixed. The bottom tier comprises
6
According to a 2003 survey, 14.6 per cent of the African population above the age of 20 had received no
formal education at all, while the figure for the white population was only 0.3 per cent. Statistics South Africa
General Household Survey (2003) para 3.1.
7
In 1996, the human development index for South African whites was calculated at 0.86 (comparable to that
of Singapore or Luxembourg), for coloureds 0.7, Indians 0.7 and Africans 0.63 (compared to 0.39 in 1980). The
index is a measure of people’s ability to live a long and healthy life, to be able to communicate, to participate in
the life of the community and to have sufficient means to obtain a decent living. Statistics South Africa Human
Development Index (1996).
8
The Gini coefficient is used to measure the inequality of distribution of personal income and consumption in
a society. A perfectly equal society will have a coefficient of 0 while a maximally unequal society (in which one
person has all the income) will have a coefficient of 1. South Africa’s coefficient was measured at 0.73 in 2006.
Statistics South Africa Millennium Development Goals Country Report (2010) 25.
9
Brink (note 5 above) [44].
10
Seekings & Nattrass Class, Race, and Inequality 340.
11
Terreblanche History of Inequality 132.
12
Seekings & Nattrass Class, Race, and Inequality.
212
Equality 9.1
people employed in particular occupational categories, such as farmworkers and

domestic workers and the unemployed. This tier—the ‘marginal working class’ and
the ‘under-class’—is overwhelmingly black and increasing in numbers.13
The nature of inequality means that the constitutional commitment to equality
cannot simply be understood as a commitment to formal equality. It is not sufficient
simply to remove racist and sexist laws from the books and to ensure that similar
laws cannot be enacted in future. That will result in a society that is formally equal
but that is unequal in every other way. Indeed, in many respects, modern South
Africa can be described as formally equal but substantively unequal. The need to
confront substantive inequality is recognised in the equality clause in the Bill of
Rights, particularly in s 9(2) which permits measures ‘designed to protect or advance
persons, or categories of persons disadvantaged by unfair discrimination’. In
addition, the Constitution protects a list of socio-economic rights which require the
state to implement progressive measures to achieve a minimum level of basic goods
such as housing, health care, food, water and social security, basic and further
education for all,14 the right not to be refused emergency medical treatment,15 and
the right of a child to basic nutrition, shelter, basic health care services and social
services.16 Provisions of the property clause require the state to implement measures
to correct the racially skewed distribution of landownership that has persisted since
colonial times.17
(c) Formal and substantive equality

A distinction must be drawn between formal and substantive equality. Formal equality
means sameness of treatment: the law must treat individuals in like circumstances alike.
Substantive equality requires the law to ensure equality of outcome and is prepared to
tolerate disparity of treatment to achieve this goal.18
Formal equality simply requires that all persons are equal bearers of rights. On this
view, inequality is an aberration that can be eliminated by extending the same rights and
entitlements to all in accordance with the same ‘neutral’ norm or standard of
measurement. Formal equality does not take actual social and economic disparities
between groups and individuals into account. Substantive equality, on the other hand,
requires an examination of the actual social and economic conditions of groups and
individuals in order to determine whether the Constitution’s commitment to equality is
being upheld. The results or effects of a particular rule are highlighted rather than its
mere form.
In assessing these two approaches in the context of the principles and purposes of the
Constitution and the historical burden of inequality that it seeks to overcome, it is clear
13
Ibid 336–339.
14
Sections 26, 27 and 29(1). See, further, Chapter 26 below.
15
Section 27(3).
16
Section 28(1)(b).
17
Section 25(5). See, further, para 25.3(h) in Chapter 25 below.
18
For example, on a formal conception of equality, equality is achieved if all children are educated according
to the same school curriculum. Substantive equality, on the other hand, would require equality of outcome. If
children with disabilities (deaf children, for example) undergo the same school programme as other children they
may very well end up receiving an education that is inadequate for their special needs. To realise the right to
equality of such children, it may therefore be necessary to treat them differently to everyone else. T Loenen ‘The
Equality Clause in the South African Constitution: Some Remarks from a Comparative Perspective’ (1997) 13
SAJHR 401, 405.
213
that a purely formal understanding of equality risks neglecting the deepest commitments
of the Constitution.19 A substantive conception of equality, on the other hand, is
supportive of these fundamental values. A purposive approach to constitutional
interpretation means that s 9 must be read as grounded on a substantive conception of
equality. According to the Constitutional Court:
We need . . . to develop a concept of unfair discrimination which recognises that although a
society which affords each human being equal treatment on the basis of equal worth and
freedom is our goal, we cannot achieve that goal by insisting upon identical treatment in all
circumstances before that goal is achieved. Each case, therefore, will require a careful and
thorough understanding of the impact of the discriminatory action upon the particular people
concerned to determine whether its overall impact is one which furthers the constitutional
goal of equality or not. A classification which is unfair in one context may not necessarily be
unfair in a different context.20
An additional conception of equality is envisaged by the endorsement in s 9(2) of
‘legislative and other measures designed to protect or advance persons, or categories of
persons, disadvantaged by unfair discrimination’. According to the Constitutional Court,
this provision recognises a conception of ‘restitutionary equality’:
Particularly in a country such as South Africa, persons belonging to certain categories have
suffered considerable unfair discrimination in the past. It is insufficient for the Constitution
merely to ensure, through its Bill of Rights, that statutory provisions which have caused
such unfair discrimination in the past are eliminated. Past unfair discrimination frequently
has ongoing negative consequences, the continuation of which is not halted immediately
when the initial causes thereof are eliminated, and unless remedied, may continue for a
substantial time and even indefinitely. Like justice, equality delayed is equality denied. . . .
One could refer to such equality as remedial or restitutionary equality.21
The idea of restitutionary equality has also been associated with a political concept that
has gained considerable currency. This is the concept of ‘transformation’. The
Constitution does not use this term but, according to the Constitutional Court, can
nevertheless be described as a ‘transformative constitution’.22 This commitment
requires understanding the constitutional value of equality as a process towards the goal
of an equal society. In the course of this process of transformation, unequal treatment
may have to be tolerated:
. . . transformation is a process. There are profound difficulties that will be confronted in
giving effect to the constitutional commitment of achieving equality. We must not
underestimate them. The measures that bring about transformation will inevitably affect
some members of the society adversely, particularly those coming from the previously
advantaged communities. It may well be that other considerations may have to yield in
19
One of the most important indications that the substantive conception of equality is envisaged by the
Constitution is the declaration in s 9(2) that ‘equality includes the full and equal enjoyment of all rights and
freedoms’: National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6 (CC) [62]. See
also Minister of Finance v Van Heerden 2004 (6) SA 121 (CC) [26] (Constitution’s goal of creating ‘a non-racial
and non-sexist egalitarian society underpinned by human dignity, the rule of law, a democratic ethos and human
rights’ informs a conception of equality that goes beyond mere formal equality and mere non-discrimination
which requires identical treatment, whatever the starting point or impact).
20
President of the Republic of South Africa v Hugo 1997 (4) SA 1 (CC) [41].
21
National Coalition for Gay and Lesbian Equality v Minister of Justice (note 19 above) [60]–[61].
22
Road Accident Fund v Mdeyide 2011 (2) SA 26 (CC) [125]. See the seminal treatment of the concept of
‘transformative constitutionalism’ by K Klare ‘Legal Culture and Transformative Constitutionalism’ (1998) 14
SAJHR 146. The most comprehensive recent account is Liebenberg Socio-Economic Rights chapter 2.
214
Equality 9.1–9.2
favour of achieving the goal we fashioned for ourselves in the Constitution. What is
required, though, is that the process of transformation must be carried out in accordance
with the Constitution.23
9.2 INTERPRETING SECTION 9
(a) Section 9 compared to section 8 of the interim Constitution

Much of the Constitutional Court’s equality jurisprudence deals with s 8 of the interim
Constitution, the predecessor of s 9. However, the two rights are similar enough for the
court’s interpretation of s 8 to apply to the 1996 formulation.24 Both s 8 and s 9 grant, in
separate clauses, a right to equal protection and benefit of the law and a right to
non-discrimination. Both formulations expressly provide that affirmative action
measures are constitutionally valid. The negative formulation of s 8(3)(a) (equality is
not prejudiced by affirmative action) is replaced by a positive formulation in s 9(2)
(equality includes remedial measures), but the substitution has no more than symbolic
significance.25 The section dealing with the restitution of land rights (s 8(3)(b)) has been
removed to s 25(7)—part of the property clause—where it more appropriately
belongs.26
There are two differences between the two formulations that are worth noting:
(1) The listed grounds of unfair discrimination in s 9(3) are more extensive than
those in s 8(2)IC. The new grounds are pregnancy, marital status and birth.
(2) Section 9(4) is a horizontally-applicable right to non-discrimination. In other
words, people have a right not to be unfairly discriminated against by other
people and can rely directly on the Constitution to enforce this right.27 Under the
interim Constitution, the non-discrimination right applied directly against the
state only.
(b) The stages of enquiry

Section 9 contains five subsections. The first provides for the principle of equality before
the law and confers the right to equal protection and benefit of the law. The second deals
with affirmative action. The third contains a prohibition of unfair discrimination on
certain grounds (the ‘listed grounds’). The fourth extends the prohibition of unfair
discrimination to the horizontal level and requires enactment of national legislation to
prohibit unfair discrimination at this level.28 The final subsection presumes state or
private discrimination on the listed grounds to be unfair.
23
Bato Star Fishing v Minister of Environmental Affairs and Tourism 2004 (4) SA 490 (CC) [74].
24
National Coalition for Gay & Lesbian Equality v Minister of Justice (note 19 above) [15].
25
In Gordon v Department of Health, Kwazulu-Natal 2008 (6) SA 522 (SCA), a claim concerning the validity
of affirmative action appointments made by the government, the SCA did not attach any weight to the distinction
between s 8(3)(a) and s 9(2). It approached the matter as though the obligations flowing from s 8(3)(a) and s 9
are one and the same.
26
27
However, since the commencement of the Promotion of Equality and Prevention of Unfair Discrimination
Act 4 of 2000 equality challenges other than challenges to the Equality Act itself must be premised on the
provisions of the Act and not the Constitution: MEC for Education, Kwazulu-Natal v Pillay 2008 (1) SA 474
(CC) [40]. See, further, 9.6 below.
28
On the distinction between horizontal and vertical application and between direct and indirect application of
the Bill of Rights, see Chapter 3 above.
215
In Harksen v Lane NO,29 the Constitutional Court tabulated the stages of an enquiry
into a violation of the equality clause along the following lines:
(a) Does the challenged law or conduct differentiate between people or categories of
people? If so, does the differentiation bear a rational connection to a legitimate
government purpose? If it does not, then there is a violation of s 9(1). Even if it
does bear a rational connection, it might nevertheless amount to discrimination.
(b) Does the differentiation amount to unfair discrimination? This requires a
two-stage analysis:
(i) Firstly, does the differentiation amount to ‘discrimination’. If it is on a
specified ground, then discrimination will have been established. If it is not
on a specified ground, then whether or not there is discrimination will
depend upon whether, objectively, the ground is based on attributes and
characteristics which have the potential to impair the fundamental human
dignity of persons as human beings or to affect them adversely in a
comparably serious manner.
(ii) Secondly, if the differentiation amounts to ‘discrimination’, does it amount
to ‘unfair discrimination’? If it has been found to have been on a specified
ground, then unfairness will be presumed. If on an unspecified ground,
unfairness will have to be established by the complainant. The test of
unfairness focuses primarily on the impact of the discrimination on the
complainant and others in his or her situation.
If, at the end of this stage of the enquiry, the differentiation is found not to be
unfair, then there will be no violation of s 9(3) and (4).
(c) If the discrimination is found to be unfair then a determination will have to be
made as to whether the provision can be justified under the limitation clause.
Basically, this means that there is a preliminary enquiry as to whether the impugned
provision or conduct differentiates between people or categories of people. This is a
threshold test: if there is no differentiation then there can be no question of a violation of
any part of s 9. If a provision or conduct does differentiate then a two-stage analysis
must be applied. The first stage ((a) above) concerns the right to equal treatment and
equality before the law in s 9(1). It tests whether the law or conduct has a rational basis:
is there a rational connection between the differentiation in question and a legitimate
governmental purpose that it is designed to further or achieve? If the answer to this is no,
then the impugned law or conduct violates s 9(1) and it fails at the first stage. If
however, the differentiation is shown to be rational, then the second stage of the enquiry
((b) above) is activated. A differentiation that is rational may nevertheless be unfair
discrimination under s 9(3) or (4). In principle, both unfair discrimination and
differentiation without a rational basis can then be justified as limitations of the right to
equality in terms of s 36. However, as is argued below, it is a matter of considerable
conceptual difficulty to characterise unfairness and irrationality as reasonable and
justifiable.
The structure of the enquiry as set out in the Harksen formula appears quite
systematic: one first considers whether there has been a violation of the right to
equality before the law and then considers whether there is unfair discrimination. If
the equal treatment right in s 9(1) has been violated there will be no need to consider
29
Harksen v Lane NO 1998 (1) SA 300 (CC) [53].
216
Equality 9.2
whether there has also been a violation of the non-discrimination right. However, the
Constitutional Court has held that it is neither desirable nor feasible to divide the
equal treatment and non-discrimination components of s 9 into watertight
compartments: the equality right is a composite right.30 Moreover, in National
Coalition for Gay & Lesbian Equality v Minister of Justice, the Constitutional Court
held that a court need not ‘inevitably’ perform both stages of the enquiry.31 This was
because the first-stage rational basis inquiry would be ‘clearly unnecessary’ in a case
in which a court holds that the discrimination is unfair and unjustifiable.32 In other
words, in those cases in which a court finds that a law or conduct unjustifiably
infringes s 9(3) or (4), there is no need to first consider whether the law or conduct
is a violation of s 9(1).33
Section 9 can therefore be said to identify three ways in which a law or conduct
might differentiate between people or categories of people. First, there is what the
Constitutional Court terms ‘mere differentiation’,34 which, while it does treat some
people differently to others, does not amount to discrimination. Mere differentiation
will fall foul of s 9(1) unless it has a rational connection to a legitimate government
purpose. Second, there is differentiation which amounts to unfair discrimination
(prohibited by s 9(3) and (4)). Even where there is a rational connection between a
differentiation and a legitimate government purpose, the differentiation will still
violate the equality clause if it amounts to unfair discrimination. Third, and
somewhat difficult to conceptualise, is the category of law or conduct that can be
called fair discrimination: law or conduct that discriminates but which does not do so
unfairly, taking into account ‘the impact of the discrimination on the complainant
and others in his or her situation’. Each of these three forms of differentiation is
considered in detail further below.
(c) The relationship between section 9 and section 36

The Bill of Rights contains a general limitation clause—s 36. It is general because the
clause applies generally to all the rights listed in the Bill of Rights. This requires a
two-stage process of analysis.35 If it is argued that conduct or a provision of the law
infringes a right in the Bill of Rights, it will first have to be determined whether that
right has in fact been infringed. The second stage commences once it has been shown
that a right has been infringed. The respondent (usually the state) is required to show
that the infringement is a justifiable limitation of the right. This entails showing that the
criteria set out in s 36 are satisfied: the right has been limited by law of general
application for reasons that can be considered reasonable and justifiable in an open and
democratic society based on human dignity, equality and freedom.
30
Prinsloo v Van der Linde 1997 (3) SA 1012 (CC) [22].
31
Ibid [18].
32
It is not evident why consideration of s 9(1) is ‘clearly unnecessary’ when law or conduct is found to be
unfair discrimination. It cannot be because a finding that law or conduct unjustifiably violates one right prevents
or relieves a court from considering whether it violates any other right. After all, the Constitutional Court in
National Coalition (note 19 above) went on to find that the criminalisation of gay sex violated three distinct
rights in the Bill of Rights. Nor can it be that unfair discrimination is always a violation of the right to equal
treatment, because this would make nonsense of the court’s test in Harksen (note 29 above): first test for rational
basis; if there is a rational basis then test for unfair discrimination.
33
See, for example, Mvumvu v Minister for Transport 2011 (2) SA 473 (CC) [26].
34
Prinsloo (note 30 above) [25].
35
217
In the case of the right to equality, it is difficult to apply the usual two-stage analysis
of a right and its limitation. Indeed, it is far from clear whether s 36 can have any
meaningful application to s 9. This is because the s 9 rights are qualified by the same or
similar criteria to those used to adjudicate the legitimacy of a limitation of rights in s 36.
It is, for instance, difficult to see how discrimination that has already been characterised
as ‘unfair’ because it is based on attributes and characteristics which have the potential
to impair the fundamental human dignity of persons as human beings can ever be
acceptable in an open and democratic society based on human dignity, freedom and
equality.36 Similarly, it is difficult to see how one could justify as ‘reasonable’ a law
which differentiates for reasons not rationally related to a legitimate government
purpose and which is therefore arbitrary.37 In spite of these difficulties, as required by
the Harksen formula, the Constitutional Court has on each occasion when it has found a
violation of the equality clause, also considered the effect of the limitation clause.38 The
limitations analysis has, however, never resulted in the impugned law being upheld.
9.3 ‘MERE DIFFERENTIATION’
(a) Differentiation and discrimination distinguished

The equality right does not prevent the state from making classifications and from
treating some people differently to others. This is because the principle of equality does
not require everyone to be treated the same, but simply that people in the same position
from a moral point of view should be treated the same. Laws may therefore classify
people and treat them differently to other people for a variety of legitimate reasons.
Indeed, laws almost inevitably differentiate between persons. It is impossible to regulate
the affairs of the inhabitants of a country without differentiation and without
classifications that treat people differently and that impact on people differently.39 Not
every differentiation can therefore amount to unequal treatment. If it did, the courts
could be called on to review almost the entire legislative programme. Accordingly, it is
36
As observed by Farlam J in S v K 1997 (9) BCLR 1283 (C) [30].
37
The limitations clause (s 36) specifically requires a limiting law inter alia to be related to the achievement of
a legitimate purpose. See, further, Chapter 7 above. In National Coalition for Gay and Lesbian Equality v
Minister of Home Affairs 2000 (2) SA 1 (CC) [56], [59] the court held that there was no rational connection
between an objective of protecting family life and the exclusion of gay and lesbian couples from immigration
legislation promoting family unity. The legislation could not be justified under s 36 for the same reason. An
attempt at justification of a differentiation between the right to recover damages between spouses married in and
out of community of property similarly failed in Van der Merwe v Road Accident Fund 2006 (4) SA 230 (CC)
[63]: ‘The lack of a legitimate purpose renders, at the outset, the limitation unjustifiable’.
38
See, for example, National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6
(CC); the minority judgments of Mokgoro J in Hugo (note 20 above), O’Regan and Sachs J in S v Jordan 2002
(6) SA 642 (CC) and of Mokgoro J and O’Regan J in Volks NO v Robinson 2005 (5) BCLR 466 (CC) [136]. The
court does not always devote much energy to the consideration of limitation. See Satchwell v President of
Republic of South Africa 2002 (6) SA 1 (CC) [26] where the court simply accepted in a single sentence the
respondents’ concession that the law in question was unjustifiable. The most recent example is Mvumvu v
Minister for Transport 2011 (2) SA 473 (CC) [35]–[38].
39
‘The Criminal Code imposes punishments on persons convicted of criminal offences; no similar burdens are
imposed on the innocent. Education Acts require children to attend school; no similar obligation is imposed on
adults. Manufacturers of food and drugs are subject to more stringent regulations than the manufacturers of
automobile parts. . . . The Income Tax Act imposes a higher rate of tax on those with high incomes than on those
with low incomes. Indeed, every statute or regulation employs classifications of one kind or another for the
imposition of burdens or the grant of benefits. Laws never provide the same treatment for everyone.’ P Hogg
Constitutional Law of Canada (3 ed) para 52.6(b).
218
Equality 9.3
necessary to identify the criteria that separate legitimate differentiation from

constitutionally impermissible differentiation. These criteria are the listed grounds of
unfair discrimination in s 9(3) and those grounds not on the list that constitute unfair
discrimination. In other words, differentiation is permissible if it does not amount to
unfair discrimination.
What of differentiation which is not unfair discrimination? This is, to use the term
employed by the Constitutional Court, ‘mere differentiation’. Mere differentiation that is
not discriminatory need not be fair. Its validity is tested instead by a more generous
standard: rationality.
(b) Rationality
Law or conduct that differentiates between groups of people will be valid as long as it
does not deny equal protection or benefit of the law, or does not amount to unequal
treatment under the law in violation of s 9(1). A law or conduct will violate s 9(1) if the
differentiation does not have a legitimate purpose and if there is no rational connection
between the differentiation and the purpose. As the Constitutional Court put it in
Prinsloo v Van der Linde:
In regard to mere differentiation the constitutional state is expected to act in a rational
manner. It should not regulate in an arbitrary manner or manifest ‘naked preferences’ that
serve no legitimate governmental purpose, for that would be inconsistent with the rule of
law and the fundamental premises of a constitutional state. The purpose of this aspect of
equality is, therefore, to ensure that the state is bound to function in a rational manner. . . .
Accordingly, before it can be said that mere differentiation infringes s 8 [IC] it must be
established that there is no rational relationship between the differentiation in question and
the government purpose which is proffered to validate it. In the absence of such rational
relationship the differentiation would infringe s 8.40
How was this test applied in Prinsloo? The case dealt with the validity of s 84 of the
Forest Act 122 of 1984. The Act aims to prevent and control veld and forest fires by
creating fire-control areas where schemes of compulsory fire control are established.
Owners of land situated outside of fire-control areas were not obliged to institute
fire-control measures, but they were encouraged to do so by a number of means. One of
these was s 84, which created a presumption of negligence by the landowner in respect
of fires occurring in ‘non-controlled areas’. No such presumption applied in controlled
areas.
So, the Act differentiated between owners of land in fire-control areas and non-
fire control areas. This was not a differentiation on any of the listed grounds nor
could it be said that it was a differentiation on a ground based on attributes and
characteristics with the potential to impair the fundamental human dignity of persons
as human beings or to affect them adversely in a comparably serious manner. This
meant that the differentiation did not amount to unfair discrimination—it was ‘mere
differentiation’. This left only the possibility of a challenge under s 8(1)IC (now
s 9(1)). Was the imposition of a presumption of negligence in one area and not the
other a violation of the right to equal protection and benefit and equality before the
law?
40
219
According to the Constitutional Court the differentiation between landowners in

controlled and non-controlled areas was rationally connected to the legitimate
government purpose of preventing veld fires. Is there a rational connection between
this purpose and the imposition of a burden on landowners outside control areas that
is not imposed in controlled areas? According to the court, the connection between
the presumption of negligence in s 84 and the purpose of reducing fires was that s 84
increased the vigilance of those responsible for land outside fire-control areas. In
fire-control areas, the Act prescribed duties and obliged people to participate in
schemes to prevent fires from spreading. These regulations did not apply outside the
fire-control areas. There was thus a necessity to ensure that people occupying land
outside the fire-control areas were vigilant. It did this by creating a risk for
landowners that they would be responsible for damage caused by fire spreading from
their land.41
The ‘rational connection’ test is far less exacting than the test for the justifiability
of a limitation of a right. The court will evaluate the reasons given by the
government for a law that differentiates to determine whether the purpose of the law
is legitimate. It will then consider whether there is a rational relation between the
purpose of the law and the differentiation imposed by the law. For example, if the
purpose of a law is to protect the public health it is rational to impose restrictions on
the manufacturers of drugs and pharmaceuticals and not on manufacturers of other
goods with less potential to damage health.42 The court may not enquire into the
existence of other methods of achieving the purpose, or evaluate the efficacy of the
particular method chosen.43
A rare example of a law that failed the rational connection test is provided by an
early judgment of the Constitutional Court.44 In S v Ntuli, the court tested the
validity of a law that differentiated between, on the one hand, appellants in criminal
cases who were not in prison or who were in prison but who had legal representation
and, on the other hand, appellants who were in prison and who did not have legal
representation. The court held that this differentiation was a violation of the right to
equality before the law and equal protection of the law. At the time, s 309 read with
s 305 of the Criminal Procedure Act 51 of 1977 prevented prisoners without legal
representation from pursuing appeals against their sentence or conviction by a
magistrate’s court, without a judge first certifying that there were reasonable grounds
for the appeal. The court found that these provisions (the so-called ‘judge’s
certificate requirement’) were a denial of equal treatment by the courts of law.45 The
41
Ibid [40].
42
See, for example, Weare v Ndebele NO 2009 (1) SA 600 (CC) (rational differentiation to permit only natural
persons and partnerships to apply for gambling licences and not juristic persons; purpose of legislation is to
ensure personal accountability); Flynn v Farr NO 2009 (1) SA 584 (C) [46], [47] (rational to differentiate
between children adopted de lege and de facto for purposes of intestate succession; state must keep records of
adoptions).
43
See, for example, Jooste v Score Supermarket Trading (Pty) Ltd 1999 (2) SA 1 (CC) [17].
44
See also Van der Merwe v Road Accident Fund 2006 (4) SA 230 (CC) (provisions of Matrimonial Property
Act 88 of 1984 restricting ability of spouses married in community of property to recover delictual damages from
each other constitutes arbitrary differentiation).
45
S v Ntuli 1996 (1) SA 1207 (CC). It may very well be that the differentiation between appellants with legal
representation and those without amounts to unfair discrimination. This is because the differentiation is based on
an attribute or characteristic which has the potential to impair the fundamental human dignity of persons (that is,
the inability to afford legal representation).
220
Equality 9.3
Act differentiated between prisoners without legal representation and those with legal
representation. The former required the certificate, the latter did not. Moreover, the
Act only applied to persons convicted in lower courts who ended up in prison. Those
convicts who were granted bail pending their appeal, or those who did not receive a
jail sentence did not need to obtain the certificate to appeal.
Though the court did not expressly employ the ‘rational connection’ test
developed in its later cases, the result can be explained by applying this test. The
purpose of the judge’s certificate requirement could be considered legitimate. The
requirement was a screening mechanism to sift out appeals with a reasonable
prospect of success from those with no reasonable prospect of succeeding. To put it
another way, the requirement was intended to prevent the courts being flooded with
hopeless appeals. But there could not be said to be a rational connection between
this legitimate purpose and the differentiation between represented and unrepresented
prisoners. The requirement placed an extra hurdle in the path of the most
disadvantaged appellant, ie, the prisoner without legal representation. There was no
rational basis for picking on prisoners without legal representation and subjecting
them to a burden that was not placed on any other criminal appellant.46
It is instructive to compare Ntuli to the decision in S v Rens.47 In Rens, the
Constitutional Court considered the constitutionality of s 316 of the Criminal
Procedure Act, which required those people convicted in a superior court to obtain
leave to appeal to a Full Bench or to the Supreme Court of Appeal. The principal
challenge to the section was based on an alleged violation of the right of an accused
person to appeal.48 However, the applicant also argued that the requirement of leave
to appeal discriminated against those convicted in superior courts because s 309 of
the Criminal Procedure Act conferred a more extensive right of appeal on persons
convicted in the lower courts. Addressing the differentiation between appeals from
the lower and superior courts, the court held that they were due to differences in the
standing and functioning of the courts and that, as long as persons appealing from or
to a particular court are subject to the same procedures, the requirement of equality
is met. The court held that it was quite rational that different procedures were
followed in the various courts given the different circumstances.49
46
As a consequence of the Ntuli decision amendments were made to the Criminal Procedure Act to impose an
across-the-board leave to appeal requirement on all criminal appeals from the magistrates’ courts. If leave was
refused, appellants were entitled to petition the High Court. The amendments were declared unconstitutional in S
v Steyn 2001 (1) SA 1146 (CC), this time on grounds that they were in violation of the right to appeal by a higher
court in s 35(3)(o) of the Constitution. Section 309(3A) of the Criminal Procedure Act (inserted in 2003)
provided that appeals were to be disposed of in chambers on the written argument of the parties. This was held to
be an unconstitutional infringement of s 35(3)(o) in Shinga v The State 2007 (2) SACR 28 (CC). See, further,
32.12 in Chapter 32 below.
47
S v Rens 1996 (1) SA 1218 (CC).
48
Section 35(3)(o).
49
S v Rens (note 47 above) [29]. In Besserglik v Minister of Trade, Industry and Tourism 1996 (4) SA 331
(CC), the Constitutional Court considered s 20(4) of the Supreme Court Act 59 of 1959, which requires leave to
appeal against a civil judgment of the Supreme Court. The court rejected an argument that the requirement
violated the right to equality on the same basis as it rejected the similar argument in respect of criminal appeals in
S v Rens.
221
(c) Section 9(1) and ‘rule of law rationality’

The utility of s 9(1) has considerably diminished since the Constitutional Court’s
development of a general rationality requirement, stemming from the rule of law in s 1
of the Constitution. The court has held that all exercises of public power, whether they
take the form of law or conduct, must be rational:
it is a requirement of the rule of law that the exercise of public power by the executive and
other functionaries should not be arbitrary. Decisions must be rationally related to the
purpose for which the power was given, otherwise they are in effect arbitrary and
inconsistent with this requirement. It follows that in order to pass constitutional scrutiny the
exercise of public power by the executive and other functionaries must, at least, comply with
this requirement. If it does not, it falls short of the standards demanded by our Constitution
for such action.50
As has been set out above, the rationality requirement of s 9(1) is specific in the sense
that it is concerned to prevent arbitrary differentiation, rather than arbitrariness in
general. Unlike s 9(1), the general requirement of rationality imposed by the rule of law
is not necessarily triggered by differentiation. There is, in other words, no need for an
applicant to show that a law or conduct effects a differentiation between groups of
people in order to have the rationality of the law or conduct tested. Moreover, since
s 9(1) rationality is a narrower subset of the wider category of rule of law rationality,
once a law or conduct has been found rational or irrational for purposes of the latter
category, there is no need to consider whether there is a violation of s 9(1),51 or it could
be assumed that an irrational measure is also an infringement of s 9(1).52
(d) Differentiation between provinces

As a result of the constitutional division of legislative competence between the
provinces and the national sphere of government and between the provinces inter se,
individuals in one province may be subject to a different legislative regime to that
pertaining in another province, or in the rest of the country. This does not, without more,
constitute irrational differentiation.53
9.4 DISCRIMINATION
(a) The concepts of discrimination and unfair discrimination

Discrimination is a particular form of differentiation. Unlike ‘mere differentiation’,
discrimination is differentiation on illegitimate grounds. There is a list of illegitimate
grounds of differentiation in s 9(3) (the ‘listed grounds’) and the Constitutional Court
has held that differentiation on grounds that are analogous to those listed in s 9(3) (the
50
Pharmaceutical Manufacturers Association of SA: In re: ex parte President of the Republic of South Africa
2000 (2) SA 674 (CC) [85]. As for legislation, there must be a rational relationship between the legislative
scheme and the achievement of a legitimate governmental purpose: New National Party v Government of the
Republic of South Africa 1999 (3) SA 191 (CC) [84]. See, further, the discussion of ‘rule of law rationality’ in
Chapter 1 above.
51
See Bel Porto School Governing Body v Premier of the Western Cape Province 2002 (3) SA 265 (CC) [120]
(conduct found rational in the context of rule of law rationality is not irrational for purposes of s 9(1)).
52
Print Media South Africa v Minister of Home Affairs 2012 (6) SA 443 (CC) [81].
53
Weare v Ndebele NO 2009 (1) SA 600 (CC) [70] (bookmaking licensees in KwaZulu-Natal had to be natural
persons, but in the rest of the country natural and juristic persons were eligible; no conflict with s 9(1)).
222
Equality 9.4
‘analogous grounds’) will constitute discrimination. An analogous ground is one that is

‘based on attributes or characteristics which have the potential to impair the
fundamental dignity of persons as human beings, or to affect them seriously in a
comparably serious manner’.54 This explains why differentiating (as in Prinsloo)
between landowners in fire-control areas and non fire-control areas is not discrimination,
even though a burden is placed on the latter group that is not imposed on the former. The
basis of discrimination is not one of the listed grounds, nor can it seriously be argued
that it is an attribute or characteristic that could impair human dignity or anything
comparable. On the other hand, a law that differentiates between black and white people
and places a burden on one group and not on the other is differentiation on the
illegitimate ground of race and is therefore discrimination.
However, a further qualification is required. The equality clause does not prohibit
discrimination, it prohibits unfair discrimination. The important implication of this is
that not all discrimination is unfair. Fairness is therefore a moral concept that
distinguishes legitimate from illegitimate discrimination.55
What makes discrimination unfair? The determining factor is the impact of the
discrimination on its victims.56 Unfair discrimination ‘principally means treating people
differently in a way which impairs their fundamental dignity as human beings, who are
inherently equal in dignity’.57 The concept of dignity is thus of central importance to
understanding unfair discrimination. Unfair discrimination is differential treatment that
is hurtful or demeaning. It occurs when law or conduct, for no good reason, treats some
people as inferior or incapable or less deserving of respect than others. It also occurs
when law or conduct perpetuates or does nothing to remedy existing disadvantage and
marginalisation.58
(b) Unfair impact

The Constitutional Court has held that the following factors must be taken into account
in determining whether discrimination has an unfair impact:59
(1) The position of the complainants in society and whether they have been victims
of past patterns of discrimination. Differential treatment that burdens people in a
disadvantaged position is more likely to be unfair than burdens placed on those
who are relatively well off.
(2) The nature of the discriminating law or action and the purpose sought to be
achieved by it. An important consideration would be whether the primary
purpose of the law or action is to achieve a worthy and important societal goal.
(3) The extent to which the rights of the complainant have been impaired and
whether there has been an impairment of his or her fundamental dignity.
According to the Constitutional Court, these factors, assessed objectively and
cumulatively, will assist in giving ‘precision and elaboration’ to the constitutional test of
54
Harksen (note 29 above) [46].
55
C Albertyn ‘Equality’ in H Cheadle et al (eds) South African Constitutional Law: The Bill of Rights (2002)
105.
56
Harksen (note 29 above) [50] to [51].
57
58
Since Harksen, there has been sustained criticism of the centrality accorded to dignity in the Constitutional
Court’s conception of unfair discrimination. For an overview of the literature, see R Krüger ‘Equality and Unfair
Discrimination: Refining the Harksen Test’ (2011) 128 SALJ 479.
59
223
unfairness. They are not a closed list. Other factors may emerge as the equality
jurisprudence develops.60
(c) The presumption of unfair discrimination

An important practical difference between the listed grounds and the analogous grounds
is that differentiation on one or other of the listed grounds is presumed to be unfair
discrimination (s 9(5)). On the other hand, differentiation on an analogous ground is not
presumed to be unfair discrimination, but rather must be shown by the applicant to be
unfair discrimination. When a listed ground is involved, all that the applicant is required
to do is establish that the differentiation is based on one or other of the listed grounds
and there is no need to prove that the discrimination impairs his or her fundamental
dignity as a human being. To presume discrimination on a listed ground to be unfair
does not mean that the discrimination is unfair. It is open to the respondent to prove that,
on the contrary, the discrimination is not unfair. Where the discrimination is on an
analogous ground then it is necessary for the applicant to prove the unfairness of the
discrimination by showing that it impairs his or her fundamental dignity.
(d) Fair discrimination

It seems puzzling that not all discrimination is unfair, or that there could be such a thing
as fair discrimination.61 This is because, in everyday speech, the word discrimination
carries pejorative associations. Most people would say that it is wrong to discriminate
and would be hard pressed to understand someone who said that sometimes
discrimination is not wrong, or that only unfair discrimination is wrong.
An example which helps to explain the idea of fair discrimination is the
Constitutional Court’s decision in President of the Republic of South Africa v Hugo. In
1994, President Mandela granted a remission of sentence to all mothers who were in
prison at the time and who had children under the age of twelve years. The respondent,
a prisoner who was the father of a child under twelve, argued that the President’s order
unfairly discriminated against him on the basis of gender. The court found that the
President’s act constituted discrimination on two grounds: ‘sex coupled with parenthood
of children below the age of 12’.62 The first of these was a listed ground. This means that
the act should be considered unfair discrimination unless the contrary is proved.
The majority of the court treated it as an acceptable generalisation that, in South
African society, mothers are primarily responsible for nurturing and rearing children.
This imposes a tremendous burden upon women and is one of the root causes of
women’s inequality in society. If, on the basis of this generalisation, the President had
denied an opportunity to mothers that he had afforded to fathers his actions would have
been unfair discrimination.63 However, the President did the opposite. On the basis of
the generalisation he afforded an opportunity to mothers which he denied to fathers.
Though this was discrimination, it was not unfair. The decision of the President
benefited children and gave women prisoners with minor children an advantage. The
effect of the act was to do no more than deprive fathers of minor children of an early
60
Ibid [52].
61
See, for example, Hugo (note 20 above) [37], [39] and [40] where Goldstone J talks of ‘fair discrimination’.
62
Ibid [33].
63
Ibid [39].
224
Equality 9.4
release to which they had no legal entitlement. There were far larger numbers of fathers
in prison than mothers. The release of such large numbers of prisoners would have led to
public outcry. Thus it could not be argued that the decision not to afford male prisoners
the same opportunity impaired their sense of dignity as human beings or their sense of
equal worth. Moreover, it could be said that the purpose of the President’s act was to
achieve a worthy and important societal goal. It was designed to benefit three groups of
prisoners namely, disabled prisoners, young people and mothers of young children as an
act of mercy. The fact that all these groups were regarded as being particularly
vulnerable in our society, and that in the case of the disabled and the young mothers,
they belonged to groups who had been victims of discrimination in the past, weighed
with the court in concluding that the discrimination was not unfair.64 The discrimination
was against a class of individuals (fathers) who had not historically been subject to
disadvantage.
(e) Unfair discrimination

Unfair discrimination is discrimination with an unfair impact. It has this impact where it
imposes burdens on people who have been victims of past patterns of discrimination,
such as women or black people, or where it impairs to a significant extent the
fundamental dignity of the complainant. Where the discriminating law or action is
designed to achieve a worthy and important societal goal it may make fair what would
otherwise be unfair discrimination.65
A case illustrating the distinction between unfair discrimination and discrimination
that is not unfair is City Council of Pretoria v Walker.66 In this decision the court
examines the impact of two policies of the Pretoria City Council. The council had
jurisdiction over the formerly exclusively white areas of Pretoria (‘old Pretoria’) and
over the townships of Atteridgeville and Mamelodi. The residents of old Pretoria were
mostly white and those of the two townships were mostly black. In old Pretoria
ratepayers paid consumption-based tariffs for the water and electricity services supplied
by the council. Actual consumption was measured by meters placed in each property. In
Atteridgeville and Mamelodi users paid a flat rate per household, no matter how much or
how little water or electricity they consumed. Walker, a resident of old Pretoria,
complained that the flat rate in Mamelodi and Atteridgeville was lower than the metered
rate and this therefore meant that the residents of old Pretoria subsidised those of the two
townships. He also complained that only residents of old Pretoria were singled out by
the council for legal action to recover arrears owed for services, whilst a policy of
non-enforcement was followed in respect of Mamelodi and Atteridgeville.
The majority of the Constitutional Court considered the actions of the council to be
indirect discrimination on the listed ground of race. However, the majority went on to
hold that the first set of actions that Walker complained of (the flat rate and
64
This was Goldstone J’s explanation, in Harksen (note 29 above) [52], of his earlier judgment in Hugo (note
20 above).
65
66
City Council of Pretoria v Walker 1998 (2) SA 363 (CC). See also Union of Refugee Women v Director:
Private Security Industry Regulatory Authority 2007 (4) SA 395 (CC) (majority holding that discrimination
between citizens and permanent residents on the one hand and foreigners, including refugees, on the other for
purposes of registration as security service providers not unfair).
225
cross-subsidisation) was not unfair discrimination while the second set (selective
recovery of debts) was unfair discrimination.
Unfair discrimination is differentiation that has an unfair impact on its victims. In this
regard, the court first took into account that Walker was white, and therefore belonged to
a group that had not been disadvantaged by the racial policies and practices of the past.
In an economic sense, his group was neither disadvantaged nor vulnerable, having been
benefited rather than adversely affected by discrimination in the past.67 What of the
purpose of the council’s actions? The council’s decision to confine the flat rate to
Atteridgeville and Mamelodi and to continue charging the metered rate in old Pretoria
was dictated by circumstances. First, the council inherited a situation in which the
townships were not equipped with metering equipment, while houses in old Pretoria
were. Moreover, since old Pretoria is a wealthier and more developed area than
Atteridgeville and Mamelodi, it was a fair assumption that old Pretoria would have
accounted for a major proportion of the total consumption of water and electricity in the
municipality. To have applied a flat rate throughout the entire municipality would have
been unscientific, and would have resulted in far greater prejudice to individual users
than the application of the flat rate in Atteridgeville and Mamelodi alone. In the
circumstances, the adoption of a flat rate as an interim arrangement while meters were
being installed in the residential areas of the two townships was the only practical
solution to the problem.
As for cross-subsidisation, the Constitutional Court held that the levying of different
rates for the same services is not always unfair.68 The cross-subsidisation in this case
was temporary and would be phased out once meters had been installed in the townships
and a consumption-based tariff introduced. In the meantime, the fact that the white town
subsidised consumption in the black townships could not be said to ‘impact adversely on
the respondent in any material way. There was no invasion of the respondent’s dignity
nor was he affected in a manner comparably serious to an invasion of his dignity.’69
The selective recovery of outstanding service charges by the council was held by the
majority of the Constitutional Court to be unfair discrimination. In old Pretoria,
defaulters (such as Walker) were summonsed and services were suspended. In the
townships, there were no suspensions nor was any legal action taken against defaulters.
According to the court, had the council set in place a properly formulated policy directed
at achieving the important societal goal of transforming both the living conditions and
culture of non-payment of service charges in the townships, the policy might well have
been consistent with the goal of furthering equality for all. It would therefore have been
a measure aimed at achieving substantive or restitutionary equality and not in conflict
with the equality right. Instead, the policy of taking no legal action to enforce payment
of arrears had nothing to do with the ability of residents to pay, or the introduction of
metered charges and was applicable to all residents of Atteridgeville and Mamelodi,
irrespective of their financial circumstances or their ability to pay for the services.70 In
these circumstances, the council had not discharged the burden of showing that the
racial discrimination was not unfair.71
67
Ibid [47].
68
Ibid [62].
69
Ibid [68].
70
Ibid [77]–[78].
71
Ibid [81].
226
Equality 9.4
(f) The listed grounds

Differentiation on the basis of one of the grounds listed in s 9(3) is presumed to be unfair
discrimination until the contrary is proved. There is accordingly a presumption that
differentiation on one of the listed grounds will impose burdens on people who have
been victims of past patterns of discrimination or will impair the fundamental dignity of
those affected.72
A claim may be brought on ‘one or more’ of the listed grounds. Thus it is open to
black women, for example, to argue that they experience race and gender discrimination
as a group which is distinct from the kind of discrimination suffered by white women or
black men.
(i) Race, colour, ethnic origin

The International Convention on the Elimination of All Forms of Racial Discrimination
defines ‘racial discrimination’ as unfair differentiation based on ‘race, colour, descent,
or national or ethnic origin’. These are biological (and in some cases social) categories
on which powerful and destructive ideologies of superiority and inferiority have been
constructed.
South Africa’s long history of official racism explains the obduracy of racial
inequality in modern South Africa and the necessity for positive measures to remove it.
Most of the apartheid catalogue of racially discriminatory legislation has been
repealed.73
(ii) Gender, sex, pregnancy

‘Sex’ is a biological term, whereas ‘gender’ is a social term. In other words, sex refers to
the biological and physical differences between men and women. Sex discrimination
therefore occurs where pregnant women are discriminated against74 or where women are
indirectly discriminated against on the basis of, for example, height or weight
requirements.75 Gender refers to ascribed social and cultural male and female roles. An
72
73
One of the last few survivors—the Black Administration Act 38 of 1927, the foundation of the split legal
system established after Union in 1910—was the subject of a challenge in Moseneke v The Master 2001 (2) SA
18 (CC). The fact that there were different legal provisions for the treatment of the intestate deceased estates of
black people and white people was a product of intentionally racist law-making and therefore held to be
manifestly unfair discrimination. Any beneficial consequences that happened to result from the Act’s
differentiated system of administration of estates could not make it fair. The Act, which governed issues of
considerable practical significance, is being incrementally repealed: Repeal of the Black Administration Act and
Repeal of Certain Laws Act 28 of 2005.
74
Making it unnecessary to have a specified ground of discrimination on the basis of pregnancy. See Brooks v
Canada Safeway Ltd [1989] 1 SCR 1219 (SC) (discrimination on grounds of pregnancy is necessarily
discrimination on grounds of sex, since only women can be pregnant). See also Woolworths (Pty) Ltd v
Whitehead 2000 (12) BCLR 1340 (LAC).
75
See for example, Brink (note 5 above). Section 44 of the Insurance Act 27 of 1943 provided that if a husband
cedes a life policy to his wife, and upon his death his estate is sequestrated as insolvent, the proceeds of the policy
return to his insolvent estate. The provision therefore singled out married women. No similar provision penalised
married male beneficiaries whose wives died insolvent after ceding a policy to them, or anyone else for that
matter. The court held the provisions to be unfair discrimination on grounds of sex and marital status. See also,
Hugo (note 20 above) (presidential remission of sentence to all women in prison with children under the age of
twelve years discrimination on the basis of sex; discrimination not unfair).
227
example of gender discrimination would be prejudicial treatment arising out of

parenting roles76 or stereotypical views of women’s capabilities in the workplace.
Despite their prevalence, sex and gender discrimination are less visible than race,
often because privatised. ‘For all the subtle masks that racism may don’, Sachs J has
pointed out, ‘it can usually be exposed more easily than sexism and patriarchy, which
are so ancient, all-pervasive and incorporated into the practices of daily life as to appear
socially and culturally normal and legally invisible’.77
(iii) Sexual orientation

Including sexual orientation as an express ground of discrimination was a bold and
progressive step by the drafters of the interim Constitution,78 as was the decision to
retain the ground in the 1996 Constitution. There is a rich jurisprudence interpreting and
applying it.
(aa) Decriminalisation
A number of common-law and old-order legislative criminal prohibitions of
homosexual acts, premised on moral disapproval, were in obvious conflict with a right
against sexual-orientation discrimination.79 The ground was accordingly the basis for
the invalidation of the common-law offence of sodomy and related statutory offences by
the Constitutional Court in the National Coalition case. The court defined the term by
reference to erotic attraction (to members of the opposite sex and, in the case of gays and
lesbians, to members of the same sex, and not by reference to lifestyle choices:
The concept ‘sexual orientation’ as used in s 9(3) of the 1996 Constitution must be given a
generous interpretation of which it is linguistically and textually fully capable of bearing. It
applies equally to the orientation of persons who are bi-sexual, or transsexual and it also
applies to the orientation of persons who might on a single occasion only be erotically
attracted to a member of their own sex. . . . The discriminatory prohibitions on sex between
men reinforces already existing societal prejudices and severely increases the negative
effects of such prejudices on their lives. . . . But such provisions also impinge peripherally in
other harmful ways on gay men which go beyond the immediate impact on their dignity and
self-esteem. Their consequences ‘legitimate or encourage blackmail, police entrapment,
violence (‘‘queer-bashing’’) and peripheral discrimination, such as refusal of facilities,
accommodation and opportunities’ . . . The impact of discrimination on gays and lesbians is
rendered more serious and their vulnerability increased by the fact that they are a political
minority not able on their own to use political power to secure favourable legislation for
themselves.80
According to the court, the sexual orientation provision protects an identifiable group:
those people erotically attracted to members of the same sex. The rationale for this
76
Fraser v Children’s Court, Pretoria North 1997 (2) SA 261 (CC) (unfair gender discrimination to require
consent of mother but not father to adoption of extramarital child).
77
Volks NO v Robinson (note 38 above) [163]. See also Brink (note 5 above) [44] (though discrimination on
grounds of sex has not been as visible, nor as widely condemned, as discrimination on grounds of race, it has
nevertheless resulted in deep patterns of disadvantage, particularly where, as in the case of black women, race
and gender discrimination overlap).
78
See E Cameron ‘Sexual Orientation and the Constitution: A Test Case for Human Rights’ (1993) 110 SALJ
450 (prohibition of sexual orientation discrimination requiring an examination of ‘our deepest prejudices’).
79
Cameron (ibid), 453–6.
80
National Coalition (note 19 above) [20]–[21], [25].
228
Equality 9.4
identification, this singling-out of a group of people for constitutional protection, is a

common experience of humiliating domination, stigmatisation and prejudice.
Provisions of now-repealed legislation81 setting the age of consent for sexual
intercourse at 19 years for homosexuals and 16 years for heterosexuals were held to
be unfair discrimination on the ground of sexual orientation.82 According to
Mokgoro J:
The impugned sections are specific in their effect: they do not purport to protect children
between the ages of 16 and 18 against all sexual acts, but only against homosexual sexual
acts. The inevitable inference is that there is something odd, deviant and even perverse about
homosexual acts and/or homosexual people.83
(bb) Exclusion of persons in same-sex relationships from benefits accorded to

married persons
In National Coalition for Gay and Lesbian Equality v Minister of Home Affairs84
provisions of the Aliens Control Act 96 of 1991 were found to constitute unfair
discrimination on grounds of sexual orientation and marital status. In essence, the
provisions granted spouses of South African citizens a right to an immigration permit.
By granting a benefit to married people that was not granted to people who were not
married or to those who could not marry—same-sex life partners—the Act differentiated
between groups of people. This differentiation, the Constitutional Court held,
overlapped and intersected on two of the grounds listed in s 9(3)—sexual orientation
and marital status.85 The purpose of the immigration provisions was to promote and
protect a conventional conception of family life. By excluding gay and lesbian couples
from the benefit, the legislation was in effect saying that homosexual partnerships did
not constitute family life. This perpetuated a number of harmful and hurtful stereotypes
about gays and lesbians.86 The first of these stereotypes is that gay and lesbian
relationships are exclusively sexual, with few or none of the family-orientated
characteristics of marriages—consortium, companionship, love, affection, support. The
second stereotype is that gay and lesbian relationships do not qualify as family life
because they are incapable of procreating.87 This is demeaning not only to homosexual
couples, but also to heterosexual couples who, for whatever reason, do not have
children. The ‘message’ given out by the legislation, according to the court, was clear:
The message is that gays and lesbians lack the inherent humanity to have their families and
family lives in such same-sex relationships respected or protected. It serves in addition to
perpetuate and reinforce existing prejudices and stereotypes. The impact constitutes a crass,
blunt, cruel and serious invasion of their dignity. The discrimination, based on sexual
orientation, is severe because no concern, let alone anything approaching equal concern, is
shown for the particular sexual orientation of gays and lesbians.88
The discrimination was therefore unfair. Nothing could be said in its defence. The
protection of family life in conventional relationships is an important objective, but
81
Sexual Offences Act 23 of 1957. The Act has been repealed by the Criminal Law (Sexual Offences and
Related Matters) Amendment Act 32 of 2007, which sets a uniform age of consent at 16.
82
Geldenhuys v National Director of Public Prosecutions 2009 (2) SA 310 (CC).
83
Ibid [36].
84
Note 37 above.
85
Ibid [40].
86
Ibid [49].
87
Ibid [50].
88
Ibid [54].
229
there is no connection between this objective and excluding unconventional

relationships from the benefits conferred by the legislation. The legislation was therefore
irrational and consequently unjustifiable.
Following the analysis established by the National Coalition decision, sexual-
orientation discrimination has been the basis for the invalidation of legislation in a
number of cases. In Du Toit v Minister of Welfare and Population Development89
provisions of the Child Care Act 74 of 1983 and s 1(2) of the Guardianship Act 192 of
1993 providing for the joint adoption and guardianship of children by married persons
only was declared unconstitutional. In Satchwell v President of Republic of South
Africa90 the Judges’ Remuneration and Conditions of Employment Act 88 of 1989 was
declared invalid in so far as it provided financial benefits only to the ‘surviving spouse’
of judge and not to a partner in a same-sex life partnership. In J v Director-General,
Department of Home Affairs91 s 5 of the Children’s Status Act 82 of 1987 was declared
unconstitutional because it did not provide for registration of persons in permanent
same-sex life-partnership as parents of children conceived by artificial insemination. In
Gory v Kolver92 s 1(1) of the Intestate Succession Act 81 of 1987 was declared
unconstitutional to the extent that it conferred rights of intestate succession on
heterosexual spouses but not on same-sex life partners.
(cc) Exclusion of persons in same-sex relationships from the institution of

marriage
The principle that can be deduced from the decisions listed above is that, in general, to
provide a benefit to married persons only is unfair discrimination on grounds of sexual
orientation since the background common law confines the status of marriage to
heterosexual relationships.93 The decisions therefore presaged a general challenge to the
common-law definition of marriage as a union of a man and a woman,94 a challenge
heard by the Supreme Court of Appeal in Fourie v Minister of Home Affairs.95 The
trouble with marriage is, as Madala J put it, is that while not everyone may choose to get
married, only heterosexuals were given this choice.96 Denying this choice to
homosexuals is to deny them the option ‘of entering an honourable and profound estate
that is adorned with legal and social recognition, rewarded with many privileges and
secured by many automatic obligations’.97 Moreover, this denial of opportunity sends a
hurtful message of inferiority to gays and lesbians, telling them ‘not only that their
relationships and commitments and loving bonds are inferior, but that they themselves
89
Du Toit v Minister of Welfare and Population Development 2003 (2) SA 198 (CC).
90
Satchwell v President of Republic of South Africa 2002 (6) SA 1 (CC).
91
J v Director-General, Department of Home Affairs 2003 (5) SA 621 (CC).
92
Gory v Kolver 2007 (4) SA 97 (CC).
93
The principle is appreciated by the executive and the legislature. See Du Toit (note 89 above) footnotes
33–34 where the court lists a number of changes made to legislation and policy to include same-sex partnerships.
94
‘With us marriage is a union of one man with one woman, to the exclusion, while it lasts, of all others’:
Seedat’s Executors v The Master (Natal) 1917 AD 302, 309 (Innes CJ).
95
Fourie v Minister of Home Affairs 2005 (3) SA 429 (SCA). Prior to Fourie, the SCA had developed the
common law of delict by extending the spouse’s action for loss of support to partners in permanent same-sex life
relationships who had undertaken reciprocal duties of support: Du Plessis v Road Accident Fund 2004 (1) SA 359
(SCA).
96
Satchwell (note 38 above) [12], cited by Cameron JA in Fourie (SCA) (note 95 above) [14].
97
Fourie (SCA) (note 95 above) [14].
230
Equality 9.4
can never be fully part of the community of moral equals that the Constitution promises
to create for all’.98 The continuation of this state of unfair discrimination could not be
tolerated and the definition of marriage therefore had to be changed to accommodate the
possibility of same-sex marriage.99
On appeal to the Constitutional Court most of the reasoning by the Supreme Court of
Appeal was endorsed.100 Two arguments were raised to overturn the judgment of the
Supreme Court of Appeal: it had been argued that international law recognises the
centrality of family to society and the recognition of same-sex marriage would offend
the religious rights and freedoms in the Constitution. Both these arguments were
rejected by the majority of the Constitutional Court. It was held that international law
did not privilege one form of family and since same-sex unions were constitutive of
family, their recognition would not breach international law. Pertaining to the arguments
premised on s 15(3) of the Constitution, it was held that ‘religious doctrine’ could not be
used ‘as a source for interpreting the Constitution.’101 Moreover, the ‘hallmark of an
open and democratic society is its capacity to accommodate and manage difference of
intensely-held world views and lifestyles in a reasonable and fair manner.’102 In any
event, it was noted, under the Marriage Act, no religious minister could be compelled to
administer a marriage if it was inconsistent with their particular religious viewpoints. It
was held that the common-law definition of marriage was declared unconstitutional
because it excluded same-sex couples from enjoying the status and benefits accrued to
heterosexual couples. Since the Fourie appeal was decided together with another related
case in which the validity of the Marriage Act was attacked, the Constitutional Court
also declared s 30 of the Marriage Act unconstitutional.103 It suspended the declaration
of invalidity for a period of 12 months to enable the legislature to enact suitable
legislation.
Following these rulings the Civil Union Act 17 of 2006 was passed by Parliament.
This Act specifically provides for and regulates the conclusion of civil unions that can
be entered into by same-sex and heterosexual couples. At the time of solemnisation, the
marriage officer must inquire from the parties whether their civil union should be known
as a marriage or a civil partnership, while the certificate of registration may indicate that
the parties have entered into either a marriage or a civil union. The consequence and
benefits of a civil union or marriage under the Act are exactly the same as a marriage in
terms of the Marriage Act. The latter form of marriage remains available only to
heterosexual couples.
98
Ibid [15].
99
The decision of the Supreme Court of Appeal did not however result in the immediate availability of
same-sex marriages. This was because of the role of the Marriage Act 25 of 1961, which sets out the legal
formalities for the conclusion of a valid marriage. The Act required a marriage officer to put the following
question (or an approved variant) to the celebrants: ‘Do you, A.B., declare that as far as you know there is no
lawful impediment to your proposed marriage with C.D. here present, and that you call all here present to witness
that you take C.D. as your lawful wife (or husband)?’ A same-sex couple was unable to give a sensible answer to
this question, constructed as it is with heterosexual marriage in mind. Since the applicants in Fourie had not
challenged the validity of the Marriage Act, the Supreme Court of Appeal was obliged to leave it as it was.
100
Minister of Home Affairs v Fourie 2006 (1) SA 524 (CC).
101
Ibid [92].
102
Ibid [95].
103
The section contained the marriage formula reproduced in footnote 99 above.
231
(iv) Marital status

The ground of marital status discrimination gives impetus to reforms aimed at removing
the historical privileging of common-law marriage over other forms.104 The ground also
makes suspect the imposition of burdens on married people that are not imposed on
those who are not married.105 It is unlikely that the ground covers differentiation based
on the various proprietary regimes applicable to marriage.106
The series of successful sexual-orientation challenges to legislation according
benefits to ‘spouses’ only described above gave considerable impetus to arguments that
denying such benefits to opposite-sex life partners was also unfair discrimination. In
Robinson v Volks NO, Davis J held that provisions of the Maintenance of Surviving
Spouses Act 27 of 1990, which grant to surviving spouses the right to claim
maintenance from the estates of their deceased spouses, constituted unfair discrimina-
tion on the ground of marital status. 107 This was because the Act failed to cater for the
surviving partner of a permanent heterosexual life partnership, making it an unfair
‘privileging’ of marriage.108 The remedy was to cure the Act’s under-inclusiveness by
reading in the phrase ‘permanent life partnership’ in the operative definitions.
The Constitutional Court declined to confirm the High Court decision and upheld the
Act, ruling that it was not unfair to unmarried people to grant a benefit only to married
people.109 Starting from a somewhat reluctant assumption that the Act discriminated on
the basis of marital status,110 the majority held that the discrimination was not unfair.
‘Marriage’, the majority held, ‘has a central and special place, and forms one of the
important bases for family life in our society’. The constitutional recognition of the
importance of marriage justified legal privileging of marriage and allowed the law ‘in
appropriate circumstances [to] accord benefits to married people which it does not
accord to unmarried people’.111 This was one such circumstance:
There are a wide range of legal privileges and obligations that are triggered by the contract
of marriage. In a marriage the spouses’ rights are largely fixed by law and not by agreement,
unlike in the case of parties who cohabit without being married.
. . . The distinction between married and unmarried people cannot be said to be unfair when
considered in the larger context of the rights and obligations uniquely attached to marriage.
104
The Recognition of African Customary Marriages Act 120 of 1998 aims to correct the ‘limping’ status of
customary marriages at common law.
105
Harksen (note 29 above) [62] (insolvency legislation burdening a solvent spouse by virtue of his or her
marriage relationship with an insolvent person has ‘the potential to demean persons in their inherent humanity
and dignity’). Marital status was not a listed ground in s 8 of the interim Constitution.
106
Van der Merwe v Road Accident Fund 2006 (4) SA 230 (CC) [47] (court doubting whether differentiation
between marriage in and out of community of property could constitute discrimination on grounds of marital
status).
107
Robinson v Volks NO 2004 (6) SA 288 (C). The Act grants a maintenance claim to a ‘survivor’, defined as
‘the surviving spouse in a marriage dissolved by death’. In Daniels v Campbell NO 2004 (5) SA 331 (CC) the
terms ‘spouse’ and ‘survivor’ were read down to include Muslim marriages, thereby avoiding unfair
discrimination on grounds of religion.
108
The High Court decision (note 107 above) turned on evidence of the existence of a permanent relationship
between the applicant and her deceased partner, a relationship entailing the assumption of duties of support.
Davis J added obiter that if there was ‘clear evidence that parties expressly, by choice, decided to eschew any
possible financial benefits which flowed from a marriage and, for this reason (or notwithstanding this position),
chose to live within the context of a domestic life partnership, there may be an argument, . . . that [such] a
surviving partner . . . could not successfully launch a constitutional challenge to the Act’ (299E–F).
109
Volks NO v Robinson (note 38 above).
110
Ibid [50].
111
Ibid [54].
232
Equality 9.4
Whilst there is a reciprocal duty of support between married persons, no duty of support
arises by operation of law in the case of unmarried cohabitants. The maintenance benefit in
section 2(1) of the Act falls within the scope of the maintenance support obligation attached
to marriage. The Act applies to persons in respect of whom the deceased person (spouse)
would have remained legally liable for maintenance, by operation of law, had he or she not
died.
. . . it is not unfair to make a distinction between survivors of a marriage on the one hand,
and survivors of a heterosexual cohabitation relationship on the other. In the context of the
provision for maintenance of the survivor of a marriage by the estate of the deceased, it is
entirely appropriate not to impose a duty upon the estate where none arose by operation of
law during the lifetime of the deceased. Such an imposition would be incongruous, unfair,
irrational and untenable.112
Expressly excluded from the Volks ruling was any consideration of the Act’s failure to
cover survivors of gay and lesbian relationships or polygynous relationships.113 At the
time of the decision gay people could not get married. Now, as noted above, legislation
has been passed to allow same-sex couples to conclude marriages. A decision by
cohabitants not to marry means that their exclusion from the benefits of the institution
can no longer be blamed on the law; on the logic of Volks a gay couple who opted not to
marry or enter into a civil partnership would be able to claim any of the benefits of
marriage.
Volks has been held not to stand in the way of the development of the so-called
breadwinner’s or dependant’s action at common law to include the participants in a
permanent heterosexual life partnership entailing reciprocal duties of support.114
This ground has also manifested in the context of customary marriages which are
recognised by the Recognition of Customary Marriages Act. The Act recognises
marriages that are concluded in accordance with customary law, including
polygamous marriages. However, the Act does not specify the requirements to be
met under customary law. In Ngwenyama v Mayelane115 a man who was involved in
two polygamous marriages according to customary law died without having
registered the second marriage in accordance with the Act. The High Court found the
second marriage invalid. On appeal to the Supreme Court of Appeal, it was held that
the interpretation favoured by the High Court breached the rights of the affected
women to ‘equal status in marriage’.116 The ruling thus underscores the two critically
important dimensions to the concept of marital status: all marriages enjoy equal
status and all parties in a marriage enjoy equal status.
(v) Age
Age is different from most of the other grounds of discrimination in that it does not refer
to an unchanging characteristic. Age changes constantly throughout the course of
112
Ibid [55], [56] and [60] (Skweyiya J). Nor was there any violation of the right to dignity: ‘Mrs Robinson is
not being told that her dignity is worth less than that of someone who is married. She is simply told that there is
a fundamental difference between her relationship and a marriage relationship in relation to maintenance. It is
that people in a marriage are obliged to maintain each other by operation of law and without further agreement or
formalities. People in the class of relationships to which she belongs are not in that position’ [62].
113
Ibid [49].
114
Paixao v Road Accident Fund 2012 (6) SA 377 (SCA). The action was previously extended to homosexual
life partnerships in Du Plessis v Road Accident Fund. See note 95 above.
115
2012 (4) SA 527 (SCA).
116
Ibid [21].
233
everyone’s life.117 This has the effect that the burdens and benefits of age differentiation
are shared across the entire population: everyone is at a point in their life subject to the
age restrictions placed upon, for example, driving, marrying, voting or drinking
alcohol.118
Comparative case law indicates that the most frequent application of the ground is in
challenges to compulsory retirement. For instance, in Incorporated Trustees of the
National Council on Ageing (Age Concern England) v Secretary of State for Business,
Enterprise and Regulatory Reform119 a regulation implemented by the government of
the United Kingdom introducing a compulsory retirement age of 65 was challenged. It
was argued that the regulation violated the law of the European Union which prohibited
discrimination on the grounds of age. The European Court of Justice rejected the claim,
holding that member states were permitted to introduce legislation which created
differences on the grounds of age if such differentiating rules ‘are “objectively and
reasonably” justified by a legitimate aim, such as employment policy, or labour market
or vocational training objectives, and if the means of achieving that aim are appropriate
and necessary.’120 The court did not examine the specific rule in question against these
criteria, apparently leaving the issue to the national courts of the United Kingdom to
decide.
(vi) Disability
Disability is one of the most under-litigated grounds of differentiation. The case of Singh
v Minister of Justice and Constitutional Development121 provided the High Court, sitting
as an Equality Court the first opportunity to consider this ground of unfair
discrimination. The applicant, a partially sighted magistrate, had been denied promotion
by the government on the grounds that she did not possess a driver’s licence, which was
a compulsory requirement for promotion. Her claim was multi-pronged. In addition to
the specific complaint against her non-promotion, she added that the government had
failed to give preference to people with disabilities as required by the Constitution.
On the facts the court held that the applicant had not been excluded because of her
disability. However, the court observed that ‘it is abundantly clear that when her
application(s) was considered . . . the appointment committees did not take into account
her disability and that it had a duty to advance and promote the position of disabled
people.’122 Interpreting the provisions of s 9(3) against the backdrop of South Africa’s
international obligations, the court held that the government had a duty to ‘advance and
promote the position of disabled people’.123 It set aside the decision of the government
and directed that in reconsidering the applications, the disability of the applicant had to
be taken into account and given due weight.
The status of disabled people implicates a further concern. Depending on the nature
of the disability, special measures may have to be taken to ensure that the needs of
disabled people are not merely taken into account, but the barriers to their effective
117
P Rishworth et al The New Zealand Bill of Rights (2003) 371.
118
Albertyn (note 55 above) 93.
119
Case C-388/07.
120
Ibid [65].
121
2013 (3) SA 66 (EqC).
122
Ibid [32].
123
Ibid [34].
234
Equality 9.4
economic participation are removed. As a legal principle this concern is encapsulated in

the idea of ‘reasonable accommodation’. The jurisprudential justification for reasonable
accommodation is plain.
Disabled people are often unable to access or participate in public or private life because the
means to do so are designed for able-bodied people. The result is that disabled people can,
without positive action, easily be pushed to the margins of society.124
The prohibition, therefore, against the discrimination against disabled people cannot be
understood in negative terms only. It includes a positive duty to take steps to ensure the
reasonable accommodation of disabled people. Doing nothing can itself constitute unfair
discrimination on the grounds of disability. The right not to be unfairly discriminated
against can only be experienced by positive action.
(vii) Religion, conscience and belief, culture and language

These grounds are distinct from the specific protections provided by the rights to
freedom of religion and the minority rights in ss 30 and 31, but may overlap where the
discrimination in question flows from the interference with a person’s religious or
cultural practices. In such a case, the inquiry into whether there has been discrimination
on grounds of religion or culture is similar to an inquiry under the specific rights, but it
is not identical because the court must go on to consider whether the discrimination, if
any, was unfair.125
(viii) Birth and social origin

Historically in South Africa, children whose parents were not married at the time they
were born were discriminated against in a range of ways.126 While ‘illegitimacy’ is not
specifically listed as a ground of unfair discrimination in s 9(3) it is covered by the listed
ground of ‘birth’.127 This means that any form of differentiation between the status of
children on grounds of the marital status of their parents at the time of their birth is
presumed unfair until the contrary is established.128
124
Pillay (note 27 above) [74].
125
Pillay (note 27 above) [46]. The court pointed out that there will also frequently be overlap between these
grounds: ‘religious practices are frequently informed not only by faith but also by custom, while cultural beliefs
do not develop in a vacuum and may be based on the community’s underlying religious or spiritual beliefs.
Therefore, while it is possible for a belief or practice to be purely religious or purely cultural, it is equally
possible for it to be both religious and cultural’ [47].
126
Bhe v Magistrate, Khayelitsha 2005 (1) SA 580 (CC) [57]. The statutory position of extra-marital children
who were not subject to customary law was considerably improved with the passing of the Children’s Status Act
82 of 1987 and the Intestate Succession Act 81 of 1987.
127
Bhe (ibid) [59] (the ‘prohibition of unfair discrimination on the ground of birth in section 9(3) of our
Constitution should be interpreted to include a prohibition of differentiating between children on the basis of
whether a child’s biological parents were married either at the time the child was conceived or when the child
was born’).
128
Ibid. In Bhe the intestate succession scheme of the Black Administration Act 38 of 1927 preventing
intestate succession by women and extra-marital children was declared invalid. The Act, and associated
regulations (applicable only to persons governed by ‘Black law and custom’) were intended to give effect to the
customary-law principle of male primogeniture. The Constitutional Court declared both the Act and regulations
and the background ‘rule of male primogeniture as it applies in customary law’ invalid as infringements of the
equality right [136]. Bhe made the Intestate Succession Act (see note 126 above) applicable to intestate deceased
estates previously governed by the Black Administration Act [136].
The rule in Motan v Joosub 1930 AD 61 that the paternal grandfather of an extra-marital child did not have a duty
to support the child was held to be in conflict with the rights to dignity, equality and the children’s rights in
235
Social origin refers to concepts such as class, clan or family membership.129
(g) Not defamatory to depict someone as having any of the characteristics

in the listed grounds
Defamation consists of the making of statements about someone that would probably
lower them in the estimation of ‘right-thinking members of society generally’. The
‘right thinking’ standard is a standard of objective reasonableness. It follows that it is
inconsistent with being right-thinking to think less of someone who is said to have any
of the characteristics in the list of prohibited grounds of discrimination. According to
Froneman J and Cameron J in Le Roux v Dey it cannot ‘be actionable simply to call or to
depict someone as gay even though he chooses not to be gay and dislikes being depicted
as gay—and even though stigma may still surround being gay. To hold actionable an
imputation based on a protected ground of non-discrimination would open a back door
to the enforcement by the law of categories of differentiation that the Constitution has
ruled irrelevant’.130
(h) The analogous grounds

Unfair discrimination is differentiation on illegitimate grounds. Differentiation on a
ground that is not on the list of presumptively illegitimate grounds of differentiation in
s 9(3) will be discrimination if the ground is analogous to the listed grounds. The
Constitutional Court has held that the listed grounds relate to attributes or characteristics
that impact on human dignity. Analogous grounds will therefore have a similar
relationship and impact. There is no presumption to aid the applicant in the case of
analogous grounds: the applicant must show that law or conduct on grounds other than
those listed in s 9(3) is ‘based on attributes or characteristics which have the potential to
impair the fundamental dignity of persons as human beings, or to affect them seriously
in a comparably serious manner’.131
A number of factors must be taken into account in determining whether
discrimination has an unfair impact. The first is the position of the complainants in
society and whether they have been victims of past patterns of discrimination. The
second factor in assessing unfairness is the nature of the discriminating law or action
and the purpose sought to be achieved by it. Does the law seek to achieve a worthy and
important societal goal? The third factor in assessing unfairness is the extent to which
Petersen v Maintenance Offıcer 2004 (2) BCLR 205 (C). The law had to be developed, Fourie J held, to impose
such a duty.
In Namibia, the common-law rule prohibiting children born out of wedlock from inheriting from their father was
held to be discriminatory on the grounds of social status (art 10(2) of the Namibian Constitution) and the right to
equality before the law. See Frans v Paschke 2009 (1) SA 527 (Nm).
129
Albertyn (note 55 above) 96. In Mabaso v Law Society, Northern Provinces 2005 (2) SA 117 (CC) it was
argued that a differentiation in the statutory regime applicable to attorneys admitted in the former TBVC ‘states’
and those admitted in South Africa was ethnic or social origin discrimination in that the basis of the
differentiation was the social origin of the person concerned. The Constitutional Court avoided this argument,
deciding the case instead on the basis that the differentiation was discrimination on an analogous ground [37].
130
Le Roux v Dey 2011 (3) SA 274 (CC) [185]. See, further, Chapter 16 below.
131
Harksen (note 29 above) [46]. Harksen dealt with discrimination on the ground of ‘marital status’ but did
so under the interim Constitution, which did not list this as a presumptive ground.
236
Equality 9.4
the rights of the complainant have been impaired and whether there has been an
impairment of his or her fundamental dignity.132
For example, in Larbi-Odam v MEC for Education (North-West Province),133 the
Constitutional Court held that a provincial regulation which prevented all non-citizens
(and therefore the subcategory of permanent residents) from being appointed into
permanent teaching posts, was unfair discrimination. The ground of unfair discrimina-
tion in this case is citizenship, or, from the perspective of the appellants,
‘non-citizenship’. Citizenship, though not a listed ground, is suspect because it is based
on attributes and characteristics which have the potential to impair the fundamental
human dignity of non-citizens hit by the regulation. The court noted that foreign citizens
are a minority in all countries, and have little political muscle and that they are therefore
vulnerable to having their interests overlooked and their rights to equal concern and
respect violated. Second, citizenship is a personal attribute which is difficult to change.
‘In addition’, the court noted, ‘the overall imputation seems to be that because persons
are not citizens of South Africa they are for that reason alone not worthy of filling a
permanent post’.134 As for unfairness, the measure was overbroad and its impact on
non-citizens who were permanent residents could not be justified.135
It is not always obvious whether a particular basis of discrimination can be
categorised as being one of the listed grounds. In such cases, it is possible for a court to
decide that law or conduct is unfair discrimination on an analogous ground. Hoffmann v
South African Airways136 dealt with an airline’s policy of not employing HIV-positive
persons as cabin attendants. It was argued that the policy amounted to unfair
discrimination on the listed ground of disability. The Constitutional Court avoided the
controversy over classification of HIV as a disability, preferring to deal with HIV-status
discrimination as an analogous ground.137 The determining factor in deciding whether
discrimination is unfair is its impact on the people affected. For people to be denied
employment because of their HIV-positive status without regard to their ability to
perform the duties of the position from which they have been excluded is a violation of
dignity. The court noted a ‘prevailing prejudice’ against HIV-positive people. In such a
context, any further discrimination against them was ‘a fresh instance of stigmatisation’
and an assault on their dignity.138 The discrimination could not be justified as fair,
132
Ibid [51].
133
Larbi-Odam v MEC for Education (North-West Province) 1998 (1) SA 745 (CC).
134
Ibid [20]. In Union of Refugee Women v Director: Private Security Industry Regulatory Authority 2007 (4)
SA 395 (CC) [45] the court considered a challenge to legislation requiring registered security guards to be
citizens or permanent residents. The challenge was brought on behalf of refugees who had been granted a right to
remain indefinitely in South Africa. At [45], the majority of the court assumed, without deciding the issue, that
differentiation between refugees and permanent residents was discrimination on an analogous ground.
135
See also Flynn v Farr NO 2009 (1) SA 584 (C) (differentiation between children adopted de facto and those
adopted de lege not unfair discrimination on a listed or analogous ground).
136
2001 (1) SA 1 (CC). See also the discussion of Mabaso v Law Society, Northern Provinces in note 129
above.
137
Hoffmann (note 136 above) [40] (‘unnecessary to consider whether the appellant was discriminated against
on a listed ground of disability . . . as [the appellant] contended or whether people who are living with HIV ought
not to be regarded as having a disability, as contended by the amicus [the Aids Law Project]’). The Equality Act
includes, in s 34, a ‘directive principle’ requiring the Minister of Justice to give consideration to the inclusion of
HIV/AIDS status in the definition of ‘prohibited grounds’ of discrimination in the Act. The Employment Equity
Act includes ‘HIV status’ as a listed ground of unfair discrimination. See Irvin & Johnson (Ltd) v Trawler and
Line Fishing Union 2003 (3) SA 212 (LC) (prohibition of HIV-status discrimination in Employment Equity Act
not violated by an anonymous and voluntary testing programme of an employer).
138
Ibid [28].
237
because it was based on ill-informed prejudice against people with HIV. The fact that
some people with HIV would not be healthy enough to work as cabin attendants did not
justify a blanket policy of refusing employment to anyone with HIV.139 ‘Prejudice’,
according to the court, ‘can never justify unfair discrimination’.140
(i) Direct and indirect discrimination

The prohibition against both direct and indirect discrimination is intended to cover all
possible forms of discrimination on the listed or analogous grounds. The prohibition of
indirect unfair discrimination is based on the realisation that, though the basis of
differentiation may, on the face of it, be innocent, the impact or effect of the
differentiation is discriminatory. A good example is provided by the US case of Griggs
v Duke Power Co,141 in which black employees successfully challenged the power
company’s hiring and promotion requirements which required a high school diploma.
Directly, the requirement was not discriminatory. Indirectly, it had the effect of keeping
black people out of the job since disproportionately few were able to meet this
requirement.142 A law may also be neutral on its face and in its impact but be
administered unfairly.
The phrase ‘directly or indirectly’ covers all three possible forms of discrimination.
Any law which has an unfairly discriminatory effect or consequences or which is
unfairly administered may amount to prohibited discrimination even if the law appears
on its face to be neutral and non-discriminatory.143 Section 9(5), which presumes
discrimination on one or other of the listed grounds to be unfair discrimination, applies
both to direct and indirect discrimination.144
In City Council of Pretoria v Walker, the applicant’s complaint was that the council’s
actions discriminated on grounds of race. On its face, the council’s policy was neutral on
the subject of race. It did not expressly differentiate between white and black ratepayers
but imposed more burdensome tariff structures and debt-collection policies on the
suburbs of Pretoria than it did on the townships. However, its effect, according to the
applicant, was to target white residents and subject them to a burden that black residents
did not suffer. The majority of the Constitutional Court agreed:
It is sufficient for the purposes of this judgment to say that this conduct which differentiated
between the treatment of residents of townships which were historically black areas and
139
Had the applicant been refused employment because he was too ill to work, this would not be unfairly
discriminatory. This point is further illustrated by Master of the High Court v Deedat 1999 (11) BCLR 1285 (N),
which involved an application for removal of one of the trustees of a trust who had suffered a stroke and was
bed-ridden, paralysed from the neck down, and unable to speak. It was argued that it would be unconstitutional to
have the trustee removed on the ground of his physical disability. According to the court, it would be unfairly
discriminatory to remove a trustee solely on the grounds of physical incapacity without any reference to his or
her ability to perform the duties of a trustee. A finding that he or she be removed on the grounds of physical
incapacity to perform the duties of a trustee would not be disability discrimination and not unfairly
discriminatory.
140
Hoffmann (note 136 above) [37].
141
Griggs v Duke Power Co 401 US 424 (1971).
142
Another example is the requirement, considered in Union of Refugee Women (note 66 above) that
prospective registrants as security service providers supply a police clearance certificate. Such a requirement is,
on its face, a neutral formality facilitating the vetting of candidates. Its impact is potentially discriminatory; it
would have the effect of excluding most refugees, who are by definition at odds with the authorities in their home
countries who might supply them such a certificate.
143
Walker (note 66 above) [31].
144
Ibid [35].
238
Equality 9.4
whose residents are still overwhelmingly black, and residents in municipalities which were
historically white areas and whose residents are still overwhelmingly white constituted
indirect discrimination on the grounds of race. The fact that the differential treatment was
made applicable to geographical areas rather than to persons of a particular race may mean
that the discrimination was not direct, but it does not in my view alter the fact that in the
circumstances of the present case it constituted discrimination, albeit indirect, on the
grounds of race. It would be artificial to make a comparison between an area known to be
overwhelmingly a ‘black area’ and another known to be overwhelmingly a ‘white area’, on
the grounds of geography alone. The effect of apartheid laws was that race and geography
were inextricably linked and the application of a geographical standard, although seemingly
neutral, may in fact be racially discriminatory. In this case, its impact was clearly one which
differentiated in substance between black residents and white residents. The fact that there
may have been a few black residents in old Pretoria does not detract from this.145
Whereas direct discrimination appears on the face of a law or conduct, if an applicant
seeks to rely on indirect discrimination it will often be necessary to adduce evidence to
show that a particular law or conduct has discriminatory effect, or is administered in a
discriminatory manner. For example, in Democratic Party v Minister of Home
Affairs,146 provisions of the Electoral Act 73 of 1998 requiring voters to identify
themselves using a particular bar-coded identity document were challenged on the
grounds that they were indirectly discriminatory. On their face, the provisions were
neutral, it was argued, but their effect was to discriminate on, amongst others, the
grounds of race, age and residence. This argument was based on a survey showing that
most of the potential voters without the requisite identity document were whites, rural
dwellers and young people. The Constitutional Court held that there was insufficient
evidence to sustain an indirect discrimination challenge to the Act. There was nothing to
show that voters in the identified categories had in fact registered in smaller numbers
than those outside the categories. Even if they had, this may well have been the result of
voter education drives directed at voters outside the categories, rather than the effect of
the Electoral Act.
S v Jordan147 saw an interesting dissensus among the members of the
Constitutional Court on an allegation of indirect discrimination. A number of
challenges were made against legislation prohibiting prostitution. The essence of the
equality challenge was that the legislation criminalises only one side of the
transaction—the conduct of the prostitute and not the client. This differentiation
amounts, so the argument went, to indirect gender discrimination, since most
prostitutes are women. But according to the majority of the Constitutional Court, the
objection had to be dismissed:
In my view, a gender-neutral provision which differentiates between the dealer and the
customer, a distinction that is commonly made by statutes and which is justifiable, having
regard to the qualitative difference between the conduct of the dealer and that of the
customer, and which operates in the legal framework that punishes both the customer and
the dealer and makes them liable to the same punishment, cannot be said to be
145
Sachs J dissented, holding that the differential treatment was neither directly nor indirectly grounded on
race. Instead, ‘the policy . . . was based on the identification of objectively determinable characteristics of
different geographical areas, and not on race. There was no direct discrimination on grounds of race. Nor, in my
view, was there indirect discrimination on the grounds of race simply because whites lived in one area and blacks
in another’. Walker (note 66 above) [105].
146
Democratic Party v Minister of Home Affairs 1999 (3) SA 254 (CC).
147
S v Jordan (note 38 above).
239
discriminating on the basis of gender simply because the majority of those who happen to
violate such a statute happen to be women.148
The ‘legal framework’ referred to is the general criminal law which treats a client of a
prostitute as a socius criminis and, in terms of s 18 of the Riotous Assemblies Act 17 of
1956, as a conspirator. The fact that in practice no client is ever charged as a socius or
conspirator is not a defect in the law but rather in its enforcement. Deficient enforcement
is immaterial in confirmation proceedings arising out of a declaration of invalidity of
legislation.149
The minority of the court saw it differently. It was no answer to the charge of
unfair discrimination to say that a client could be charged as an accomplice or
conspirator. These are forms of indirect criminal liability. The primary crime and the
primary stigma of being a criminal ‘lies in offering sexual intercourse for reward, not
in purchasing it’.150 The express criminalisation of only one side of the transaction
reflected negative stereotypes of women’s sexuality, of the ‘sexual double standards’
prevalent in society:
the stigma is prejudicial to women, and runs along the fault lines of archetypal
presuppositions about male and female behaviour, thereby fostering gender inequality. To
the extent therefore that prostitutes are directly criminally liable . . . while customers, if
liable at all, are only indirectly criminally liable as accomplices or co-conspirators, the
harmful social prejudices against women are reflected and reinforced. Although the
difference may on its face appear to be a difference of form, it is in our view a difference of
substance, that stems from and perpetuates gender stereotypes in a manner which causes
discrimination. The inference is that the primary cause of the problem is not the man who
creates the demand but the woman who responds to it: she is fallen, he is at best virile, at
worst weak. Such discrimination, therefore, has the potential to impair the fundamental
human dignity and personhood of women.151
(j) Discrimination need not be intentional

There is no need for an applicant to show that a law or conduct which has a
discriminatory effect was intended to discriminate.152 Thus the applicants have to show
only that they were unfairly discriminated against but not that the unfair discrimination
was intentional. To require the second showing would place an onerous burden of proof
on an applicant, particularly in cases where indirect discrimination is alleged.153
While an intention to discriminate is not necessary to prove discrimination, intention
to discriminate is relevant to the enquiry whether the discrimination has been unfair.
One of the factors determining whether discrimination has an unfair impact is the
purpose of the conduct or action, whether ‘its purpose is manifestly not directed, in the
first instance, at impairing the complainants . . . but is aimed at achieving a worthy and
148
Ibid [18] (Ngcobo J).
149
Ibid [19].
150
Ibid [63] (O’Regan J and Sachs J).
151
Ibid [65].
152
Walker (note 66 above) [43].
153
See, for example, the provisions of the Aliens Control Act that were considered in National Coalition (note
37 above). The provisions in question granted a benefit to married persons. In doing so, it excluded homosexual
partners from the benefit. It is unlikely that the exclusion was intentional, but the legislature’s discriminatory
intention or lack of it is irrelevant.
240
Equality 9.4–9.5
important societal goal’.154 Obviously conduct or action that is intended to be

discriminatory is more likely to be considered unfair than conduct or action that is
unintentionally discriminatory.155
9.5 AFFIRMATIVE ACTION

Affirmative action means preferential treatment for disadvantaged groups of people.
Typically, an affirmative action programme will require a member of a disadvantaged
group to be preferred for the distribution of some benefit over someone who is not a
member of that group. The grounds of preference are usually race or gender.156
Affirmative action programmes can be seen either as an exception to the right to
equality or as part of the right to equality. The former view sees affirmative action as
‘reverse discrimination’, a practice of favouring those discriminated against in the past
and discriminating against those favoured in the past. The latter view sees affirmative
action as a means to the end of a more equal society. This view treats equality as a
long-term goal, to be achieved through measures and programmes aimed at reducing
current inequality.
The Constitution favours the latter view. Affirmative action is not an exception to
equality, but is a means of achieving equality understood in its substantive or
restitutionary sense. Section 9(2) states that ‘equality includes the full and equal
enjoyment of all rights and freedoms’ and that to ‘promote the achievement of equality’
affirmative action measures may be undertaken.157 Apartheid and segregation created a
political and economic system that favoured some people and unfairly discriminated
against others. This system left a legacy of inequality which inhibits the enjoyment and
exercise of the constitutional rights of a large number of people in South Africa. A
person who is illiterate, uneducated or undereducated is not in the same position to enjoy
the right to freedom of expression or political rights as a person who is educated. The
right to equality therefore does more than simply prohibit discrimination or unequal
treatment by the state or by private individuals. It also imposes a positive obligation on
the state to act so as to ensure that everyone fully and equally enjoys all rights and
freedoms.
Affirmative action programmes must therefore be seen not as a derogation from, but a
substantive and composite part of the right to equality.158 Differentiation aimed at
protecting or advancing persons disadvantaged by unfair discrimination is therefore
154
Ibid [52].
155
Walker (note 66 above) [44]. This is illustrated by Moseneke v The Master 2001 (2) SA 18 (CC)
(segregation-era legislation intentionally discriminating on ground of race is unfair, notwithstanding that the
legislation may have unintended beneficial consequences).
156
For example, the Employment Equity Act 55 of 1998 aims to redress inequalities in the public and private
sector labour markets. The Act obliges employers to take steps to increase the representation of members of
so-called ‘designated groups’ in their workforce. The designated groups are black people, women and people
with disabilities. A more recent example is the Broad-Based Black Economic Empowerment Act 53 of 2003,
which aims to rebalance the country’s racially-skewed division of economic power by promoting ‘the economic
empowerment of all black people including women, workers, youth, people with disabilities and people living in
rural areas’ (s 1).
157
Section 8(3) of the interim Consititution was less unequivocal about whether affirmative action was part of,
or an exception to, the equality right. In Gordon (note 25 above) this textual difference was given no prominence.
The Supreme Court of Appeal essentially treated s 8(3) of the interim Consititution as if it was worded similarly
to s 9(2).
158
Minister of Finance v Van Heerden (note 19 above) [32].
241
warranted provided the measures are shown to conform to the internal test of s 9(2).159
Practically, this means that when a measure has been challenged as a violation of the
equality right, the state or the institution responsible for the measure can defend it by
showing that the measure (1) targets persons or categories of persons who have been
disadvantaged by unfair discrimination;160 (2) is designed to protect and advance such
persons or categories of persons and (3) promotes the achievement of equality.161 Once
shown to be an affirmative action measure, it is not unfairly discriminatory, even if the
basis of differentiation is a listed ground.162 Only measures (or programmes) qualify
under this section. Ad hoc individual decisions not taken in terms of a measure will not
be given recognition by courts.163
Affirmative action is justified by its consequences. A measure that favours relatively
disadvantaged groups at the expense of those who are relatively well off is not unfairly
discriminatory because the consequences of such a measure are, in the long run, a more
equal society. But this means that the measure chosen must be intended to achieve these
desirable consequences. Though it is not possible to predict the future, the measure
should at least be more likely to achieve the goal of equality than not.
Etienne Mureinik pointed out that two different interpretations could be attached to
the phrase ‘designed to achieve’ in s 8(3) of the interim Constitution.164 On the one hand
it could mean ‘intended’, with the result that affirmative action measures would not be
reviewable provided that the state can show an intention to achieve equality for persons
or groups ‘disadvantaged by unfair discrimination’. Mureinik argued that the better view
is that the use of the word ‘designed’ suggests that there should be a rational relationship
between ends and means. In other words, it is necessary to show both the purpose of the
programme in question and that the means selected are reasonably capable of meeting
that purpose. This requires affirmative action programmes to be carefully constructed to
achieve equality.
Mureinik’s view was supported in Public Servants’ Association of South Africa v
Minister of Justice165 where the court held that the words ‘design’ and ‘achieve’ denote
a causal connection between the designed measures and the objectives.166 In Van
Heerden, the Constitutional Court overruled this interpretation, holding that
159
Ibid.
160
Ibid [37]. The fact that a small number of people who do not qualify as affirmative action beneficiaries
nevertheless receive benefits from a scheme does not affect the scheme’s validity. The efficacy of the scheme
should be judged by whether an overwhelming majority of members of the favoured class are persons designated
as disadvantaged by unfair exclusion. Ibid [40]. In Van Heerden the court upheld a differentiated Parliamentary
pension scheme that favoured post-1994 members of Parliament and was relatively disadvantageous to pre-1994
MPs who remained members after 1994. The principal basis of differentiation was race, since Africans could not
have been MPs prior to 1994. However, since not all post-1994 MPs were Africans, the scheme ended up
benefiting some people not eligible for affirmative action.
161
Ibid [37].
162
Ibid [33], [36].
163
Gordon (note 25 above).
164
Mureinik ‘A Bridge to Where?’.
165
Public Servants’ Association of South Africa v Minister of Justice 1997 (3) SA 925 (T), (1997) 18 ILJ 241
166
(T). In the Public Servants’ Association case (ibid), none of the white males (all of whom had considerable
work experience) who had applied for senior posts in the Department of Justice was interviewed for the vacant
positions. The evidence was that the Department was oversupplied with white males and, to address this
situation, a policy had apparently been adopted of not considering white males for certain posts when they
became vacant. According to the court, these actions, though forming part of an affirmative action programme,
were ‘haphazard, random and overhasty’. They therefore could not in any sense be said to be ‘designed’ to, or
constructed to, achieve affirmative action goals. The actions therefore did not constitute ‘measures designed to
242
Equality 9.5
Section 9(2) of the Constitution does not postulate a standard of necessity between the
legislative choice and the governmental objective. The text requires only that the means
should be designed to protect or advance. It is sufficient if the measure carries a reasonable
likelihood of meeting the end. To require a sponsor of a remedial measure to establish a
precise prediction of a future outcome is to set a standard not required by section 9(2). Such
a test would render the remedial measure stillborn, and defeat the objective of section
9(2).167
A litigant defending remedial measures does not, therefore, need to show that it is
necessary to disfavour one class in order to uplift another. The remedial measures must
be constructed to protect or advance a disadvantaged group and are not predicated on a
necessity or purpose to prejudice or penalise others. It is therefore unnecessary to
establish that there is no less onerous way in which the remedial objective may be
achieved.168
An affirmative action programme must be designed to protect and advance persons
disadvantaged by unfair discrimination in the past. In Motala v University of
Natal,169 an Indian student who had obtained five distinctions in matric was refused
admission into medical school. The medical school had decided to limit to 40 the
number of Indian students admitted to its programme. This was because the poor
standards of education available to African students meant that a merit-based
entrance programme would result in very few African applicants being accepted into
medical school. It was argued that because the Indian community had also been
disadvantaged by apartheid, a measure favouring African students over Indian
students amounted to unfair discrimination. The court held that the admission policy
was a measure designed to achieve the adequate protection and advancement of a
group disadvantaged by unfair discrimination.
While there is no doubt whatsoever that the Indian group was decidedly disadvantaged by
the apartheid system, the evidence before me establishes clearly that the degree of
disadvantage to which the African pupils were subjected under the ‘four tier’ system of
education was significantly greater than that suffered by their Indian counterparts. I do not
consider that a selection system which compensates for this discrepancy runs counter to the
provisions of s 8(1) and 8(2)[of the Interim Constitution].170
This aspect of the judgment is clearly correct. Apartheid society had a distinct hierarchy
of races. Whites were at the top, Africans at the bottom and the coloured and Indian
achieve affirmative action’ and consequently were invalidated as unfair discrimination based on race and gender.
167
Note 19 above, [42].
168
Ibid [43]. See also Stoman v Minister of Safety and Security 2002 (3) SA 468 (T) in which Van der
Westhuizen J held that an employment policy or practice that was haphazard, random or overhasty would lack
rationality and would not qualify as a affirmative action measure for purposes of s 9(2). While s 9(2) of the 1996
Constitution did require rational and well planned measures to protect or advance individuals who had been
disadvantaged by unfair discrimination, the aim of such measures (to ‘promote the achievement of equality’) was
stated ‘in somewhat vaguer terms than the emphatic ‘‘achievement’’ of ‘‘adequate protection and advancement’’
of the interim Constitution (480H–I). These differences (and the enactment of the Promotion of Equality and
Prevention of Unfair Discrimination Act) allowed Van der Westhuizen J to distinguish Public Servants’
Association (note 165 above) and, to some extent, part ways from it. The applicant, a white policeman, had
applied for a more senior post. He was the best qualified candidate but the best-qualified African candidate had
been appointed instead of him. The decision not to appoint the applicant was unobjectionable, according to Van
der Westhuizen J, because the SAPS was complying with the requirements of the Constitution and the
Employment Equity Act 55 of 1998 in appointing an individual from a group under-represented at a particular
level in the service rather than an individual from a group that was over-represented.
169
Motala v University of Natal 1995 (3) BCLR 374 (D).
170
Ibid 383.
243
communities were situated in between. It is perfectly legitimate, therefore, to apply

affirmative action measures in proportion to the degree of disadvantage suffered in the
past. However, when the effect of a programme is to disadvantage, on the basis of race,
people who had also been victims of discrimination in the past, the court ought to focus
on the second requirement of the affirmative action clause and satisfy itself that the
programme is rational and carefully constructed so as to achieve equality. This the court
in Motala failed to do, accepting the programme as valid simply on the basis that
Africans were more disadvantaged than Indians.
This debate was taken up recently by the Labour Appeal Court in South African
Police Service v Solidarity obo Barnard.171 In this case a policewoman who came
first in the interviews for promotion was denied promotion on the grounds that her
promotion would result in overrepresentation of whites at senior managerial positions
within the police service. The position was left vacant. The Labour Appeal Court
noted that the fact of the over-representation of white employees at the senior levels
‘required corrective intervention as decreed in the Constitution.’172 The decision at
issue here—the refusal to appoint a white person—was taken in terms of a measure
required by s 9(2) of the Constitution and therefore not unfair. Unlike the approach
taken in Motala, the Labour Appeal Court interrogated the programme of the police
service, concluding that it was a rational measure to meet the objects of the
Constitution and expressing its dismay at the failure of the police leadership to fill
the position in light of the available pool of black candidates.
9.6 THE PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR

DISCRIMINATION ACT
Section 9(4) requires the enactment of national legislation to prohibit or prevent unfair
discrimination, particularly what can be described as ‘private discrimination’—practised
by individuals or institutions other than the state and taking the form of conduct rather
than law. Item 23(1) of Schedule 6 of the Constitution provided that the legislation must
be enacted within three years of the commencement of the Constitution, that is, by 3
February 2000.
The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 is
the national legislation contemplated in s 9(4). Parts of the Act were brought into effect
on 1 September 2000 and the remainder on 16 June 2003.173
The Equality Act is an extremely ambitious piece of legislation, aiming at nothing
less than the ‘the eradication of social and economic inequalities, especially those that
are systemic in nature, which were generated in our history by colonialism, apartheid
and patriarchy, and which brought pain and suffering to the great majority of our
people’.174 It hopes to achieve this aim by (1) prohibiting unfair discrimination by the
state and by other persons, (2) providing remedies for the victims of unfair
discrimination, and (3) promoting the achievement of substantive equality. As with
171
2013 (3) BCLR 320 (LAC).
172
Ibid [25].
173
Proclamation R49 of 13 June 2003.
174
Preamble to the Act.
244
Equality 9.6
other legislation aimed at giving effect to constitutional rights,175 courts must assume
that the Equality Act is consistent with the Constitution and claims that equality rights
have been infringed must be decided in terms of substantive provisions of the Act and
using its procedures.176 After the commencement of the Equality Act the constitutional
right to equality may be directly relied upon only in the exceptional cases where a
provision of the Act, other legislation177 or conduct that is beyond the reach of the Act is
challenged as an infringement of s 9. This is in accordance with the principle of
subsidiarity which dictates that remedies should be found in common law or legislation
(interpreted or developed, as far as possible, to comply with the Constitution) before
resorting to direct constitutional remedies.178
The Equality Act has been criticised as unclear and even incoherent in places.179 It
must be interpreted in light of the principle that legislation which gives effect to a right
may extend protection beyond what is protected in the Constitution, but it may not
decrease the constitutional protection or limit another right unconstitutionally.180 It
follows that the Act’s occasionally puzzling provisions on the concept of unfair
discrimination are likely to be interpreted as providing more or less the same scope of
protection as the constitutional right. In this regard, the jurisprudence of the courts
interpreting s 9 will continue to play a decisive role.
(a) Prevention of unfair discrimination

As far as the Act’s objective of prohibiting unfair discrimination is concerned, the Act
has horizontal application in that it binds the state and all persons.181 It does not apply to
workplace discrimination to the extent that this is covered by the Employment Equity
Act 55 of 1998.182 Chapter 2 of the Act contains a general prohibition on unfair
discrimination by the state and private persons. In general, the interpretation of ‘unfair
discrimination’ in the Act is likely to track the jurisprudence of the Constitutional Court
dealing with s 9 of the Constitution.183 However, now that the Act is operational, its
rights, duties, procedures and remedies must be relied on to challenge conduct, in
preference to relying directly on s 9 of the Constitution.184
Compared to a challenge based on s 9, the Act offers some significant procedural
175
See the analogous position in relation to the labour relations rights (see Chapter 23 below) and the rights to
just administrative action (Chapter 29) and to access to information (Chapter 30).
176
177
The scope for direct constitutional challenges to legislation is diminished by the fact that the Equality Act
prevails over contrary original and delegated legislation except legislation expressly amending the Act: s 5.
178
See, further, Chapter 3 above.
179
See C Albertyn, B Goldblatt & C Roederer (eds) Introduction to the Promotion of Equality and Prevention
of Unfair Discrimination Act, Act 4 of 2000 (2001).
180
181
Section 5. ‘Person’ is defined to include a juristic person, a non-juristic entity, a group or a category of
persons.
182
Section 5(3) of the Equality Act provides that it does not apply to any person to whom and to the extent that
the Employment Equity Act 55 of 1998 applies. A complainant will therefore not be able to choose to proceed
under one or the other statute. Where the Employment Equity Act applies it excludes the operation of the
Equality Act.
183
The Act follows the Constitutional Court jurisprudence by separating the enquiry into the existence of
discrimination from the enquiry into whether the discrimination is unfair.
184
See, on the similar relationship between s 33 of the Constitution and the Promotion of Administrative
Justice Act 3 of 2000, Chapter 29 below.
245
advantages for a complainant. First, in so far as state or private conduct is challenged,185

the Act shifts the burden of proof once the complainant makes out a prima facie case of
discrimination.186 The establishment of a prima facie case requires more than a mere
allegation of discrimination. The complainant must, to the extent reasonable, produce
evidence of discrimination that if not answered by the respondent would justify a finding
of unfair discrimination. Or, as it is sometimes put, the complainant must produce
evidence of such a character that, if unanswered, it would justify a reasonable and fair
person to find in the complainant’s favour.187 Much will of course depend on the
circumstances of the case and particularly on the knowledge and information at the
disposal of the respective parties. The crucial point, however, is that once a prima facie
case is made out by the complainant, the respondent is saddled with a full onus. It will
not be sufficient for a respondent faced with a prima facie case simply to rebut the
evidence and the argument presented by the complainant. The respondent must persuade
the court that discrimination did not take place or that the differentiation did not take
place on a prohibited ground.188
A second advantage of the Act is that it presumes discrimination on a prohibited and
an analogous ground to be unfair. The Act therefore goes further than s 9(5) of the
Constitution in that it also presumes discrimination on an analogous ground to be
unfair.189 However, before the reverse onus on such a ground is triggered it must be
shown that the discrimination causes or perpetuates systemic disadvantage; or
undermines human dignity; or adversely affects the equal enjoyment of a person’s rights
and freedoms in a serious manner that is comparable to discrimination on a prohibited
ground. The complainant will therefore have to go some way towards establishing
unfairness in order to show discrimination on an analogous ground. In principle though,
the Act differs from s 9 of the Constitution in that the respondent always bears the
burden as far as the question of unfairness is concerned.190 The Act sets out in some
detail how this burden may be discharged. The factors listed include the considerations
that are taken into account to determine unfairness under s 9(3) of the Constitution and
185
Section 13. This section does not apply to challenges to the validity of law. Conflicts between the Equality
Act and other laws are dealt with in s 5(2), which provides that the Equality Act prevails over provisions of laws
other than the Constitution or Acts of Parliament which expressly amend it.
186
Discrimination is defined in the Act as an omission or conduct that directly or indirectly imposes burdens,
obligations or disadvantages on; or withholds benefits, opportunities or advantages from, a person on a prohibited
ground. The prohibited grounds are the same as the listed grounds in the Constitution.
187
See CWH Schmidt & H Rademeyer Bewysreg 4 ed (2000) 97, and the authorities referred to there.
188
The provision will be extremely difficult to apply. The provision should be taken to mean that an
assessment should be made after all the evidence is presented. If the complainant has made out a prima facie
case, and the probabilities are evenly balanced, a court should find in his or her favour. If no such case was made,
and the probabilities are even, the court should order absolution from the instance, as is usually the case.
189
Section 13(2).
190
Section 6 of the Equality Act prohibits unfair discrimination. Discrimination is defined as differentiation on
prohibited grounds. The prohibited grounds are listed in the Act. There appears to be no room for developing
further grounds of discrimination. If the challenged conduct falls outside the prohibited grounds (which is highly
unlikely) the complainant will have to proceed under the Constitution, and he or she will then bear the burden to
show unfairness.
246
Equality 9.6
the criteria in the limitation clause of the Bill of Rights.191 In our view it is sensible to
combine the factors. It avoids the kind of piecemeal reasoning that occurs when the
enquiry into unfairness is divorced from the limitations analysis.
Thirdly, the Act specifies several instances of unfair discrimination on grounds of
race, gender and disability. These are merely examples of unfair discrimination192 but
they do assist a complainant in that it cannot be argued that a specified practice can
never amount to unfair discrimination. For example, the lists prevent one from arguing
that a ‘system of preventing women from inheriting family property’, or ‘female genital
mutilation’ do not amount to unfair discrimination.
Fourthly, hate speech, harassment193 and the dissemination of information that
unfairly discriminates, are specifically outlawed.194 Unlike the listed instances of
discrimination on grounds of race, gender and disability, these prohibitions are not made
subject to the general prohibition of unfair discrimination. In other words, for purposes
of the Equality Act, it is not necessary to show, for example, that harassment amounts to
unfair discrimination. It is separately and specifically prohibited. The Equality Act’s
prohibition of hate speech is wider than the categories of expression which are excluded
from constitutional protection by s 16(2).195 In this regard the provisions of the Equality
Act will have to be justified under the general limitations clause.
(b) Access to justice

The second objective of the Act is to provide access to justice and effective remedies for
the victims of unfair discrimination, hate speech and harassment.196 All magistrates’ and
high courts are equality courts for their areas of jurisdiction and within the monetary
limits of their jurisdiction.197 However, this does not mean that any magistrate or judge
may hear a dispute that arises under the Act. The intention is to create special equality
courts for the various magisterial areas with experienced or trained staff to deal with
equality disputes.198 A particular magistrate or judge will therefore be designated as the
191
See s 14 of the Equality Act. The list includes the Harksen factors, the criteria of s 36 of the Constitution
and some new factors, such as whether the discrimination reasonably and justifiably differentiates between
persons according to objectively determinable criteria, intrinsic to the activity concerned; whether the
discrimination is systemic in nature; and whether and to what extent the respondent has taken reasonable steps in
the circumstances to address the disadvantage which arises from or is related to one or more of the prohibited
grounds, or accommodate diversity. The importance of context is further stressed and it is made clear that
affirmative action measures should not be considered to be unfair discrimination.
192
The lists of practices are ‘subject to’ the general prohibition against unfair discrimination in s 6 of the Act.
This means that the lists do not limit the scope of the general prohibition.
193
Harassment in the employment context is dealt with in the Employment Equity Act and, to this extent, the
operation of the Equality Act is excluded.
194
Sections 10, 11 and 12 respectively.
195
Section 10(1) provides that ‘no person may publish, advocate or communicate words based on one or more
of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention
to—(a) be hurtful; (b) be harmful or to incite harm; (c) promote or propagate hatred’. Compare this with the far
narrower ‘hate speech’ exemption in s 16(2) of the Constitution: ‘incitement of imminent violence’ and
‘advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause
harm’. See, further, Chapter 16 below.
196
Chapter 4 of the Equality Act.
197
Section 16(1) of the Equality Act.
198
See GN878 of 13 June 2003, designating certain magistrates’ courts as equality courts and defining their
areas of jurisdiction.
247
presiding officer of the equality court and a clerk will be appointed for such a court.199
Before the presiding officer is designated, no proceedings may be instituted.200
Broadly formulated categories of persons are afforded standing to enforce the
provisions of the Act. These correspond to s 38 of the Constitution, and the
jurisprudence outlined in Chapter 4 on ‘Justiciability’ will therefore also apply to legal
proceedings under the Equality Act. It should be noted that the presiding officer of an
equality court may refer a complainant to another forum, if it can deal more
appropriately with the matter.201
Wide-ranging powers of enforcement are afforded to the equality courts, including
the power to grant interdicts and to award damages, to order that ‘an unconditional
apology be made’, to order ‘the respondent to undergo an audit of specific policies or
practices’, or to direct ‘the respondent to make regular progress reports to the court . . .
regarding the implementation of the court’s order’.202 Various remedies may be
combined in order to ensure effective relief to a successful complainant. While the Act
does not create any criminal offences, the presiding officer may direct the clerk of the
equality court to refer a matter to the Director of Public Prosecutions for the institution
of criminal proceedings.203 This may be done, for example, when hate speech amounts
to crimen injuria or harrassment amounts to indecent assault.204
(c) Promotion of equality

The third objective of the Act, the promotion of equality, is dealt with in Chapter 5 of
the Act. The chapter sets out a list of positive duties placed on the state to develop
substantive equality and address unfair discrimination. The development of action plans,
codes of practice, internal mechanisms and information campaigns are foreseen.205
Similar sorts of responsibilities are placed on private persons who directly or indirectly
contract with the state or who exercise a public power.206 Even companies, partnerships,
clubs and other associations may be required by regulations to prepare ‘equality plans’
or to abide by prescribed codes of practice or to report to a body on measures to promote
equality.207
Ten lists of practices are annexed to the Act in a Schedule, relating to discrimination
in labour and employment, education, health care services and benefits, housing,
accommodation, land and property, insurance services, pensions, partnerships,
professions and bodies, provision of goods, services and facilities and clubs, sport and
199
Sections 16(1)(b). Procedures for the appointment of clerks and the conduct of equality court proceedings
are detailed in the Promotion of Equality and Prevention of Unfair Discrimination Act Regulations (GN R764 of
13 June 2003). A magistrates’ court sitting as an equality court has the additional remedial jurisdiction provided
for in s 21(2) of the Act, including the power to make an award of compensation which exceeds its normal
jurisdiction, provided that the order must be confirmed by a judge of the High Court. An appeal from an equality
court is to the High Court and thereafter to the Supreme Court of Appeal or directly to the Constitutional Court.
Section 23(3) makes provision for a direct appeal from an equality court (including a lower equality court) to the
200
Section 31.
201
Section 20(3).
202
Section 21(2).
203
Section 21(2)(n).
204
See further s 28(1). If unfair discrimination on grounds of race, gender or disability played a part in the
commission of an offence this must be regarded as an aggravating circumstance for purposes of sentence.
205
Section 25.
206
Section 26.
207
Section 27(2).
248
Equality 9.6
associations. These lists are intended to illustrate and emphasise some practices which
may be unfair and the state is called upon to pass legislation and other measures to
address them.208 The lists merely seem to confirm that the general principle (the
prohibition against unfair discrimination) is applicable to conduct of private persons in
the sectors mentioned above, but some specific practices such as ‘red-lining’209 and the
refusal of membership of a private club on a prohibited ground, are specified.
208
Section 29(2).
209
Red-lining is the refusal by financial institutions to lend money for the purchase of property in particular
areas. Legislation to combat the problem of ‘red-lining’ by financial institutions and to require the provision of
housing finance to low and medium-income earners has been introduced. See the Home Loan and Mortgage
Disclosure Act 63 of 2000.
249
Chapter Ten
Human Dignity
10.1 The centrality of human dignity in the Constitution . . . . . . . . . . . . . . . . . . 250
10.2 Dignity and punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254
(a) Cruel, inhuman and degrading treatment or punishment. . . . . . . . . . 254
(b) Imprisonment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254
10.3 Actio iniuriarum. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 256
10.4 Marriage and family life . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 256
Human dignity
10. Everyone has inherent dignity and the right to have their dignity
respected and protected.
10.1 THE CENTRALITY OF HUMAN DIGNITY IN THE CONSTITUTION

Human dignity is a central value of the ‘objective, normative value system’1 established
by the Constitution, perhaps the pre-eminent value.2 According to s 1, the Republic of
South Africa is founded on the values of ‘human dignity, the achievement of equality
and the advancement of human rights and freedoms’.
Reflecting extra-curially on the recognition of human dignity as a founding value,
Chief Justice Chaskalson said:
The affirmation of [inherent] human dignity as a foundational value of the constitutional
order places our legal order firmly in line with the development of constitutionalism in the
aftermath of the second world war.3
This association with post-war European constitutionalism and the international Bill of
Human Rights4 is at the same time a way of distinguishing the South African
Constitution from another influential model of constitutionalism: the United States
Constitution which places the value of individual liberty at the highest level. The
recognition of human dignity as ranking, at least, equally with the values of equality and
freedom (evidenced by the triplet ‘human dignity, equality and freedom’ employed in
1
2
According to O’Regan J in S v Makwanyane 1995 (3) SA 391 (CC) [329]: ‘[R]ecognition and protection of
human dignity is the touchstone of the new political order and is fundamental to the new Constitution.’
3
A Chaskalson ‘Human Dignity as a Foundational Value of our Constitutional Order’ (2000) 16 SAJHR 193,
196.
4
The preambles to the International Covenant on Civil and Political Rights (1966) and the International
Covenant on Economic, Social and Cultural Rights (1966) recognise that the rights to be enumerated in the
instruments ‘derive from the inherent dignity of the human person’.
250
Human Dignity 10.1
several places in the Constitutional text)5 requires a conception of a constitutional order

in which the purpose of rights is not only to protect individual liberty against state power
but one in which state power is used to secure the goals of dignity and equality:
As an abstract value, common to the core values of our Constitution, dignity informs the
content of all the concrete rights and plays a role in the balancing process necessary to bring
different rights and values into harmony. It too, however, must find its place in the
constitutional order. Nowhere is this more apparent than in the application of the social and
economic rights entrenched in the Constitution. These rights are rooted in respect for human
dignity, for how can there be dignity in a life lived without access to housing, health care,
food, water or in the case of persons unable to support themselves, without appropriate
assistance? But social and economic policies are pre-eminently policy matters that are the
concern of government. In formulating such policies the government has to consider not
only the rights of individuals to live with dignity, but also the general interests of the
community concerning the application of resources. Individualised justice may have to give
way here to the general interests of the community.6
Though we can be certain of the pivotal importance of human dignity in the
Constitution, we can be less certain of the meaning of the concept. As is typical of its
treatment of important abstractions in the Constitution, the Constitutional Court has not
ventured a comprehensive definition of human dignity.7 It has said that it has ‘a wide
meaning which covers a number of different values’.8 The court has traced the origins of
the concept to Kantian moral philosophy, where human dignity is considered to be what
gives a person his or her intrinsic worth.9 Though a ‘difficult concept to capture in
precise terms’, it is clear that the constitutional protection of dignity ‘requires us to
acknowledge the value and worth of all individuals as members of society.’10 It is the
source of a person’s innate rights to freedom and to physical integrity, from which a
number of other rights flow,11 such as the right not to be subjected to slavery and the
5
See s 7(1) (the Bill of Rights is an instrument which ‘enshrines the rights of all the people in our country and
affirms the democratic values of human dignity, equality and freedom’; s 39 (all rights in the Bill of Rights must
be interpreted so as to promote the Constitution’s ambition of creating an ‘open and democratic society based on
human dignity, equality and freedom’); s 36 (rights can only be limited to the extent justifiable in such a society).
6
Chaskalson (note 3 above) 204. See, further, S Liebenberg ‘The Value of Human Dignity in Interpreting
Socio-Economic Rights’ (2005) 21 SAJHR 1 (respect for human dignity requires society to respect the equal
worth of the poor by marshalling its resources to redress the conditions that perpetuate their marginalisation).
7
See S Woolman ‘Dignity’ in Woolman, Bishop & Brickhill (eds) Constitutional Law of South Africa §36.2
(identifying five definitions of dignity in the Constitutional Court’s jurisprudence).
8
Le Roux v Dey 2011 (3) SA 274 (CC) [138].
9
Chaskalson (note 3 above) 198 citing O Schachter ‘Human Dignity as a Normative Concept’ (1983) 77
American J of Int L 848 (respect for human dignity grounded in the Kantian injunction to treat every human being
as an end, not as a means; individuals are not to be perceived or treated merely as instruments or objects of the
will of others). See, also, Ackermann J in S v Dodo 2001 (3) SA 382 (CC) [38]: ‘Human beings are not
commodities to which a price can be attached; they are creatures with inherent worth and infinite worth; they
ought to be treated as ends in themselves, never merely as means to an end.’; L Ackermann ‘Equality and the
South African Constitution: The Role of Dignity’ (2000) 60 Heidelberg Journal of Int L 537; LWH Ackermann
‘The Legal Nature of the South African Constitutional Revolution’ (2004) 4 New Zealand Law Review 650.
10
National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6 (CC) [29] (Ackermann
J); Nyathi v MEC for the Department of Health, Gauteng 2008 (5) SA 94 (CC) [45] (requires recognition of
worth and importance of every human being).
11
See the discussion of this idea of freedom in Chapter 12 below. In Barkhuizen v Napier 2007 (5) SA 323
(CC) [57] the values of dignity and freedom were held to underlie the principle of pacta sunt servanda.
According to Ngcobo J, ‘self-autonomy, or the ability to regulate one’s own affairs, even to one’s own detriment,
is the very essence of freedom and a vital part of dignity’. The same goes for the principle of freedom of testation.
See BOE Trust NO 2013 (3) SA 236 (SCA) [27] principle of dignity ‘allows the living, and the dying, the peace
of mind of knowing that their last wishes would be respected after they have passed away’. Note, however, the
251
right to bodily integrity.12 Human dignity accordingly also provides the basis for the
right to equality—inasmuch as every person possesses human dignity in equal measure,
everyone must be treated as equally worthy of respect.13
The value of human dignity is safeguarded and promoted, inter alia, by the
recognition of a right to dignity in the Bill of Rights. The comparable centrality of
human dignity in the interim Constitution prompted the Constitutional Court to
describe the right to dignity and the right to life as the most important human
rights.14 The court further pointed out that the right to dignity is intricately linked
with other human rights. According to O’ Regan J:
Recognising a right to dignity is an acknowledgment of the intrinsic worth of human beings:
human beings are entitled to be treated as worthy of respect and concern. This right therefore
is the foundation of many of the other rights that are specifically entrenched in . . . [the Bill
of Rights].15
This point was reiterated by Chaskalson P:
The rights to life and dignity are the most important of all human rights, and the source of all
other personal rights in the Bill of Rights. By committing ourselves to a society founded on
the recognition of human rights we are required to value these two rights above all others.16
The idea of equal respect was the basis of the Constitutional Court’s decision, in
National Coalition for Gay and Lesbian Equality v Minister of Justice17 that the
common-law criminalisation of sodomy was a violation of the right to dignity. ‘At its
least’, the court held, ‘it is clear that the constitutional protection of dignity requires us
to acknowledge the value and worth of all individuals as members of our society’.
Punishing a form of sexual conduct that the broader society identifies with homosexuals
is inconsistent with human dignity:
Its symbolic effect is to state that in the eyes of our legal system all gay men are criminals.
The stigma thus attached to a significant proportion of our population is manifest. But the
harm imposed by the criminal law is far more than symbolic. As a result of the criminal
offence, gay men are at risk of arrest, prosecution and conviction of the offence of sodomy
simply because they seek to engage in sexual conduct which is part of their experience of
being human. Just as apartheid legislation rendered the lives of couples of different racial
groups perpetually at risk, the sodomy offence builds insecurity and vulnerability into the
daily lives of gay men. There can be no doubt that the existence of a law which punishes a
form of sexual expression for gay men degrades and devalues gay men in our broader
society. As such it is a palpable invasion of their dignity and a breach of s 10 of the
Constitution.18
minority decision of O’Regan J and Sachs J in S v Jordan 2002 (6) SA 642 (CC) [52], [53] (though the rights to
dignity, privacy, and freedom of the person intersect and overlap each other they cannot be grouped together as a
global right to ‘autonomy’; a separate consideration must be undertaken as to whether each right has been
infringed).
12
Dawood v Minister of Home Affairs 2000 (3) SA 936 (CC) [35].
13
National Coalition (note 10 above) [30] (‘the rights of equality and dignity are closely related, as are the
rights of dignity and privacy’).
14
15
Ibid [328].
16
Ibid [144]. See also National Coalition (note 10 above) [28] (‘the right to dignity is a cornerstone of our
Constitution’), Ferreira v Levin NO 1996 (1) SA 984 (CC) [47]; President of the Republic of South Africa v Hugo
1997 (4) SA 1 (CC) [41], Prinsloo v Van der Linde 1997 (3) SA 1012 (CC) [31]–[33].
17
Note 10 above.
18
Ibid [28].
252
Human Dignity 10.1
Besides being a foundation for civil rights, the value of dignity is also a basis for a
number of political rights, particularly those relating to democratic governance. Respect
for individual human dignity entails recognising that all persons are able to make
individual choices. This includes the choice of how and by whom they are governed.
The relation between human dignity and democratic government has been explained as
follows by the Constitutional Court:
The universality of the franchise is important not only for nationhood and democracy. The
vote of each and every citizen is a badge of dignity and of personhood. Quite literally, it says
that everybody counts.19
To summarise, human dignity is not only a justiciable and enforceable right that must be
respected and protected, it is also a value that informs the interpretation of possibly all
other fundamental rights and it is further of central significance in the limitations
enquiry.20 For example, when balancing rights under the limitations clause, one must
ask how the central constitutional value of dignity is affected.21 As a fundamental right it
has a residual function. It applies where many of the more specific rights that give effect
to the value of human dignity, do not.22 In addition, since the rights in the Bill of Rights
stem from the value of human dignity and are more detailed elaborations of aspects of
the concept, the general right to dignity in s 10 has decisive application only relatively
infrequently.23 In accordance with the principle of subsidiarity, norms of greater
specificity should be applied to the resolution of disputes before resorting to norms of
greater abstraction. In the case of the right to dignity, this translates into a rule that
specific rights giving effect to a particular aspect or application of the general right to
dignity should be invoked in preference to a reliance on the general right.24
The remainder of this chapter will focus on the jurisprudence relating to the
application of the general right to dignity and not on the interpretative role played by
the value of dignity.
19
Per Sachs J for the court in August v Electoral Commission 1999 (3) SA 1 (CC) [17]. See also the remarks
of O’Regan J in S v Makwanyane (note 14 above) [330] and R Dworkin Freedom’s Law: The Moral Reading of
the American Constitution (1996) 111.
20
Dawood v Minister of Home Affairs 2000 (3) SA 936 (CC) [35]. See, further, the discussion of the link
between privacy and dignity in Investigating Directorate: Serious Economic Offences v Hyundai Motor
Distributors (Pty) Ltd: In re Hyundai Motor Distributors (Pty) Ltd v Smit NO 2001 (1) SA 545 (CC) [18] (right
to privacy protects more intensely the closer the law intrudes upon the intimate personal sphere; this
understanding of privacy flows from the value placed on human dignity).
21
Christian Education South Africa v Minister of Education 2000 (4) SA 757 (CC) [15].
22
See, for example, Advance Mining Hydraulics v Botes NO 2000 (1) SA 815 (T) 823F, where the court held
that the right to dignity requires at least that ‘persons be treated as recipients of rights and not as objects subjected
to statutory mechanisms without a say in the matter’. In this case proceedings under s 415 of the Companies Act
61 of 173 were set aside inter alia because the presiding officer did not warn an examinee of his right to legal
representation before compelling him to answer questions he did not understand. This result was ‘a blatant
affront’ to the examinee’s dignity. See also S v Pienaar 2000 (2) SACR 143 (NC) [10] (holding that if the
government or persons in power belittle, ignore or negate a person’s language, they violate his or her right to
dignity).
23
Thint Holdings (Southern Africa) (Pty) Ltd v National Director of Public Prosecutions 2009 (1) SA 141
(CC) [50]–[51] (issuing of a letter of request in terms of section 2(1) and (2) of the International Co-Operation in
Criminal Matters Act 75 of 1996 does not signify guilt of the subject but merely that there is a reasonable
suspicion that he or she has committed an offence; no infringement of the subject’s dignity).
24
Nokotyana v Ekurhuleni Metropolitan Municipality 2010 (4) BCLR 312 (CC) [50] (the rights of access to
housing and basic services protect a specific aspect of human dignity and should be invoked rather than the
general right).
253
10.2 DIGNITY AND PUNISHMENT
(a) Cruel, inhuman and degrading treatment or punishment

In S v Williams,25 the Constitutional Court, referring to punishment in general, held that
the Constitution required that
measures that assail the dignity and self-esteem of an individual will have to be justified;
there is no place for brutal and dehumanising treatment and punishment. The Constitution
has allocated to the State and its organs a role as the protectors and guarantors of those rights
to ensure that they are available to all. In the process, it sets the State up as a model for
society as it endeavours to move away from a violent past. It is therefore reasonable to
expect that the State must be foremost in upholding those values which are the guiding light
of civilised societies. Respect for human dignity is one such value; acknowledging it
includes an acceptance by society that . . . even the vilest criminal remains a human being
possessed of common human dignity.26
The right to dignity is at the heart of the right not to be tortured or to be treated or
punished in a cruel, inhuman or degrading way.27 In S v Makwanyane, Chaskalson P
held that the right to dignity is one of the ‘relevant factors’ that must be taken into
account to determine whether a punishment is cruel, inhuman or degrading.28 Langa J,
who wrote for the court in S v Williams, held that the basic concept underlying the
prohibition of cruel, inhuman or degrading punishment is the ‘dignity of man’ and the
‘common thread running through the assessment of each phrase is the identification and
acknowledgment of society’s concept of decency and human dignity’.29
Although the rights are inextricably linked, the right to dignity encompasses a
great deal more than the prohibition of torture or cruel punishment. These
prohibitions are merely clear examples of infringements of the right to dignity.30
The jurisprudence relating to s 12(1)(e), the right not to be subjected to cruel,
inhuman or degrading treatment or punishment, is dealt with in greater detail in
Chapter 12 below.
(b) Imprisonment
In S v Makwanyane, Chaskalson P recognised that although imprisonment inevitably
impairs a person’s dignity, the state undoubtedly has the power to impose this form of
punishment as part of the criminal justice system. However, prisoners do not lose their
rights on entering prison. On the contrary, prisoners ‘retain all the rights to which every
25
S v Williams 1995 (3) SA 632 (CC).
26
Ibid [58].
27
S v Makwanyane (note 14 above) [111]; S v Dodo (note 9 above) [35]. See also Christian Education SA v
Minister of Education 1999 (4) SA 1092 (SE) where the court held that the administration of corporal punishment
in schools is also an affront to the dignity of all concerned.
28
S v Makwanyane (note 14 above) [94] and [135].
29
S v Williams (note 25 above) [35].
30
See S v Dodo (note 9 above) [35] (because the right not to be subjected to cruel, inhuman and degrading
treatment and punishment in s 12(1)(e) of the Constitution gives effect to the right to dignity, violations of this
right will entail the impairment of human dignity, in some form and to some degree). See however, S v Huma
1996 (1) SA 232 (W), which turned the enquiry on its head. The court had to consider whether the ascertainment
of bodily features and the taking of fingerprints in terms of s 37 and s 225 of the Criminal Procedure Act 51 of
1977 were an infringement of the right to dignity. The court held that the right to dignity would only be impaired
if the practice amounted to cruel, inhuman or degrading treatment. Since it did not, it was held that the taking of
fingerprints did not infringe the right to dignity.
254
Human Dignity 10.2
person is entitled under [the Bill of Rights] subject only to limitations imposed by the
prison regime that are justifiable under s 33 of the interim Constitution’.31
The circumstances in which prisoners are placed necessarily mean that they will have
to tolerate greater limitations of their rights, including their right to dignity, than other
persons. But any infringement of prisoners’ rights must be justifiable with reference to
the objectives of placing them in prison: that is the prevention of crime and the
rehabilitation of the offender.
In Makwanyane, the Constitutional Court did not express an opinion on whether life
imprisonment is compatible with the Bill of Rights. Chaskalson P did indicate that the
death sentence could be replaced with ‘severe punishment of a long term of
imprisonment, which, in an appropriate case, could be a sentence of life imprison-
ment’.32 While the court obviously did not wish to anticipate the question of the
constitutionality of life imprisonment, Ackermann J felt that the issues could not be
separated. Ackermann J referred to a decision of the German Constitutional Court in
which the constitutionality of life imprisonment was considered.33 The German Court
found that while the right to human dignity demands a humane carrying out of a
sentence, it does not prevent the state from protecting the community from dangerous
criminals even if this meant incarcerating them for life. The German Court further held,
however, that the law must provide for some prospect of parole for a prisoner sentenced
to life long imprisonment who had become rehabilitated during his or her time in prison,
and that the law must lay down objective criteria for the granting of parole.
In our view, the approach of the German Constitutional Court is likely to be followed
by the South African courts. Lifelong imprisonment must remain an option for the
punishment of serious offences and the prevention of their recurrence. It is, however, a
violation of the right to human dignity simply to banish a convict to a cell without giving
the person some hope of release after a long period of time has passed and where there is
proof that the prisoner has been reformed. The Constitutional Court has already stated
that where the length of imprisonment is grossly disproportionate to the offence, s 12(e)
and the right to human dignity would be violated.34 The same follows for a lifelong term
of imprisonment without the possibility of release.
In S v Tcoeib,35 the Namibian Supreme Court held that life imprisonment was not
unconstitutional. The court did not exclude the possibility that a sentence of life
imprisonment could, in a particular case, be held to be unconstitutional if the sentence
was so grossly disproportionate to the severity of the crime committed that it constituted
cruel, inhuman or degrading punishment or impermissibly invaded the dignity of the
accused.36
31
S v Makwanyane (note 14 above) [142]–[143].
32
Ibid [123].
33
45 BVerfGE 187 (1977).
34
S v Dodo (note 9 above) [7]–[8].
35
S v Tcoeib 1996 (7) BCLR 996 (NmS).
36
In S v Makwanyane (note 14 above) [94], Chaskalson P remarked on the importance of proportionality in
deciding whether a penalty is cruel, inhuman or degrading. This was supported by reference to the judgment of
Brennan J of the US Supreme Court, who observed in Furman v Georgia 408 US 238 (1972) 290 that ‘In
determining whether a punishment comports with human dignity, we are aided also by a second principle
inherent in the [Cruel and Unusual Punishment] Clause—that the State must not arbitrarily inflict a severe
punishment. This principle derives from the notion that the State does not respect human dignity when, without
reason, it inflicts upon some people a severe punishment that it does not inflict upon others.’
255
10.3 ACTIO INIURIARUM
At common law, the actio iniuriarum recognises an action to remedy injury to the
person, dignity or reputation of another person.37 The action for injury to dignity
requires a claimant to show, inter alia, that the conduct complained of was both
subjectively and objectively insulting.38 Though there is considerable overlap, the
concept of dignity in the Constitution has a wider meaning than it does in the common
law.39 An infringement of dignity is actionable in terms of the actio iniuriarum, but this
action ‘is confined to the person’s feeling of self-worth. While reputation concerns itself
with the respect of others enjoyed by an individual, dignity relates to the individual’s
self-respect’.40 Because of this, conduct that would attract liability for breach of the
common-law right to dignity does not render a defendant additionally liable for
defamation.41
The law of defamation lies at the intersection of the right to freedom of speech and
the right to human dignity. The common-law action for defamation was, over the course
of the twentieth century, developed by the courts in such a way as to systematically
undervalue the first of these rights, particularly in the context of defamation by the
media. The consequent recalibration of the balance between the two rights necessitated
by their recognition as constitutional principles is dealt with in Chapter 16 below.
10.4 MARRIAGE AND FAMILY LIFE

In Dawood v Minister of Home Affairs,42 Van Heerden J held that the right to dignity
must be interpreted to afford protection to the institutions of marriage and family life.
The protection extends, at the very least, to the ‘core elements’ of these institutions,
namely the right (and duty) of spouses ‘to live together as spouses in community of life’.
Van Heerden J then held that an excessive fee prescribed in respect of applications for
immigration permits violated this right to the extent that it applied to the foreign
non-resident spouses of permanent residents of South Africa. The fee had the effect of
separating the members of poor families from one another. Such persons often could not
37
Delange v Costa 1989 (2) SA 857 (A), 860–861; Le Roux v Dey 2011 (3) SA 274 (CC) [143].
38
Delange (note 37 above). The objective requirement is to prevent ‘the courts being inundated with a
multiplicity of trivial actions by hypersensitive persons.’ The common law as set out in Delange was held
adequately to protect the constitutional right to dignity and therefore not to require development in terms of
s 39(2) in Dendy v University of the Witwatersrand 2007 (5) SA 382 (SCA). The consequence is that a plaintiff
seeking damages in compensation for a breach of his or her dignity must proceed by way of the actio iniuriarum
and not by way of a direct reliance on the constitutional right to dignity. See Dikoko v Mokhatla 2006 (6) SA 235
(CC) [91] (common-law remedies that vindicate constitutionally entrenched rights constitute appropriate relief in
terms of s 38 for the breach of those rights).
39
Khumalo v Holomisa 2002 (5) SA 401 (CC) [27]. Though the constitutional concept of dignity and the
common-law concept of dignitas overlap, the overlap is not complete. Juristic persons have a right to protection
of their reputation that is remediable by an action for defamation. The interests protected by this right plainly do
not encompass ‘human dignity’. The common-law term of art dignitas is not equivalent to ‘dignity’ at common
law or ‘human dignity’ in the Constitution: rather, it ‘is a collective term for personality rights (or objects) with
the exception of the right to a good name [fama] and the right to bodily integrity [corpus]’. Neethling’s Law of
Personality 50.
40
Le Roux v Dey (note 37 above) [138].
41
Ibid [140]. The plaintiff relied on two common-law causes of action for his claim for damages arising from
the publication of demeaning photographs that imputed that he was gay. The first cause of action was defamation
and the second was an infringement of his dignity. The majority of the court upheld his claim for defamation and
held that, as a consequence, he could not additionally succeed in his claim for impairment of dignity [142].
42
Dawood v Minister of Home Affairs 2000 (1) SA 997 (C).
256
Human Dignity 10.4
pay the fee, with the result that the foreign spouse had to return to his or her country of
origin and the South African resident was sometimes too poor to follow. The prescribed
fee (more than R10 000) was not aimed at defraying the costs of processing an
application (the actual cost was far less) but to deter ‘marriages of convenience’ and
therefore to prevent illegal immigration. While the control of illegal immigration was an
important state objective, the Department of Home Affairs failed to persuade the court
that the application fee was an effective means of attaining this objective. There were
other, less restrictive, ways of verifying whether the marriage was genuine, such as
conducting interviews with the parties to the marriage.
The Constitutional Court confirmed the approach of Van Heerden J. Writing for the
court, O’Regan J held that the Constitution indeed protected the rights of persons freely
to marry and to raise a family.43 The court elaborated as follows:
The decision to enter into a marriage relationship and to sustain such a relationship is a
matter of defining significance for many, if not most, people and to prohibit the
establishment of such a relationship impairs the ability of the individual to achieve personal
fulfilment in an aspect of life that is of central significance. In my view, such legislation
would clearly constitute an infringement of the right to dignity. It is not only legislation that
prohibits the right to form a marriage relationship that will constitute an infringement of the
right to dignity, but any legislation that significantly impairs the ability of spouses to honour
their obligations to one another would also limit that right. A central aspect of marriage is
cohabitation, the right (and duty) to live together, and legislation that significantly impairs
the ability of spouses to honour that obligation would also constitute a limitation of the right
to dignity.44
The Constitutional Court did not consider Van Heerden J’s ruling in respect of the
excessive application fee,45 but confirmed her invalidation of s 25(9)(b) of the Aliens
Control Act 96 of 1991. The section required a foreign spouse of a South African
citizen, who wishes to apply for an immigration permit from within South Africa, to
possess a valid temporary residence permit. The effect of the law was to leave the
foreign spouse at the mercy of the immigration officers, pending the finalisation of an
immigration application. No attempt was made by the legislature to give guidance to the
responsible officials in order to ensure that they did not exercise their discretion in a
manner that violated the rights of spouses and family members.46
Booysen v Minister of Home Affairs47 is a straightforward application of the
Dawood ruling. The Constitutional Court held that provisions of the Aliens Control
Act which required work permits for foreign spouses of South African citizens to be
issued outside the Republic were an unconstitutional violation of the right to dignity
of South Africans and their foreign spouses.
43
Dawood (CC) (note 20 above) [28].
44
Ibid [37].
45
There was no need to confirm this ruling as it did not fall within the scope of s 172(2). On the Constitutional
Court’s confirmation power see, further, para 5.4(b) in Chapter 5 above.
46
Dawood (note 20 above) [55].
47
Booysen v Minister of Home Affairs 2001 (4) SA 485 (CC).
257
Chapter Eleven
Life
11.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 258
(a) The importance of the right to life. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 258
(b) The right to life is unqualified . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259
(c) The right to life vests in all persons, regardless of their actions . . 259
11.2 A right not to be killed. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 260
(a) Death penalty. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 260
(b) Self-defence and necessity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 260
(c) Killing while making an arrest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 261
11.3 The duty to protect and preserve life . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 262
(a) The state’s duty to protect life. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 262
(b) Abortion and euthanasia. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265
11.4 The right to a life worth living. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267
Life
11. Everyone has the right to life.
11.1 INTRODUCTION
(a) The importance of the right to life

In S v Makwanyane,1 which dealt with the constitutionality of the death penalty, the
Constitutional Court described the rights to life and dignity as the ‘most important of all
human rights, and the source of all other personal rights in [the Bill of Rights]. By
committing ourselves to a society founded on the recognition of human rights we are
required to value these two rights above all others’.2 Chaskalson P cited a decision of the
Hungarian Constitutional Court3 which stresses the absolute nature of the rights to life
and dignity. Other rights, the Hungarian court held, may be limited, and may even be
withdrawn and then granted again, but ultimately the absolute limitation of state power
is to be found in the preservation of the twin rights of life and dignity.4
1
S v Makwanyane 1995 (3) SA 391 (CC).
2
Ibid [144] and [146]. See also Kriegler J [214]: ‘in the hierarchy of values and fundamental rights guaranteed
under [the Bill of Rights], I see [the rights to equality, dignity and freedom] as ranking below the right to life.
Indeed, they are subsumed by that most basic of rights’; Langa J [217]: ‘[the right to life is] the most fundamental
of all rights, the supreme human right’.
3
Decision 23/1990 (X31) AB. The challenge to the death penalty was based on s 54 of the Hungarian
Constitution, which provides that ‘everyone has the inherent right to life and to human dignity, and no one shall
be arbitrarily deprived of these rights’.
4
S v Makwanyane (note 1 above) [83]–[85].
258
Life 11.1
Entrenchment of the right to life requires the state to take a leading role in
re-establishing respect for human life and dignity in South Africa. In his concurring
judgment in Makwanyane, Langa J pointed to South Africa’s past, in which the
apartheid state demeaned the value of life and human dignity. According to Langa J, the
state should be a role model for our society and must demonstrate society’s own regard
for human life and dignity by refusing to destroy the life and dignity of criminals.5
Langa J then proceeded to link respect for life and dignity with the African
philosophical concept of ubuntu. The dominant theme of a culture based on ubuntu is
that the life of another person is ‘at least as valuable as one’s own’.6
(b) The right to life is unqualified

The right to life in the South African Constitution is textually unqualified. In this respect
the Constitution differs materially from the constitutions of other jurisdictions such as
the United States, Canada, Hungary and India, and from international instruments such
as the European Convention on Human Rights and the International Covenant on Civil
and Political Rights. These instruments all qualify the right to life, usually by providing
that the right to life may not be deprived arbitrarily or other than in accordance with a
sentence of a court of law. In South African constitutional law, the right to life may only
be limited in terms of the limitation clause.
The unqualified nature of the right to life was referred to by several judges in
Makwanyane. The unqualified nature of the right to life was used to support an argument
that the right to life is given stronger protection in the South African Constitution than in
other constitutions and human rights instruments.7 In addition, the qualifications of the
right to life in other jurisdictions were used by the court to explain why challenges to the
death sentence have failed in those jurisdictions.8 More importantly, the absence of
qualification indicated that the drafters of the interim Constitution intended the
Constitutional Court—and not Parliament—to decide the difficult question whether
the death penalty should be retained.9 This gave the court, in a political sense, the
‘authority’ to decide the issue and to invalidate the death sentence, despite strong public
opinion in favour of its retention.
(c) The right to life vests in everyone, regardless of their actions

In Makwanyane, Chaskalson P rejected an argument that those convicted of murder
have forfeited their right to life:
5
Ibid [217]. On the same theme, see Ex parte Minister of Safety and Security: in re S v Walters 2002 (4) SA
613 (CC) [47] (‘The state is called upon to set an example of measured, rational, reasonable and proportionate
responses to antisocial conduct and should never be seen to condone, let alone to promote, excessive violence
against transgressors. Its role in our violent society is rather to demonstrate that we are serious about the human
rights the Constitution guarantees for everyone, even suspected criminals.’)
6
Ibid [225]. See also [308] (Mokgoro J).
7
Ibid [85] (Chaskalson P).
8
Ibid [38]. See, for example, S v Ntesang 1995 (4) BCLR 426 (Botswana) where a qualification in the
Botswana Constitution (s 4(1) providing that ‘no person shall be deprived of his life intentionally save in
execution of the sentence of the court in respect of an offence under the law in force in Botswana of which he has
been convicted’) thwarted an attempt to have the death penalty declared unconstitutional.
9
S v Makwanyane (note 1 above) [25] and, in particular, fn 33. See also [324] (O’Regan J).
259
[Constitutional] rights vest in every person, including criminals convicted of vile crimes.
Such criminals do not forfeit their rights under the Constitution and are entitled, as all in our
country now are, to assert these rights, including the right to life. . . .10
11.2 A RIGHT NOT TO BE KILLED
(a) Death penalty

Chaskalson P, who wrote the leading judgment concurred in by all the other judges in
Makwanyane, did not invalidate the death sentence on the basis of its conflict with the
right to life, but held that the death penalty was a cruel, inhuman and degrading
punishment. A majority of the other members of the court nevertheless found that the
death penalty also violated the right to life.11 Although no comprehensive definition of
the right to life in the interim Constitution was put forward by any of these judges, most
of them agreed that the right must, at least, incorporate the right not to be deliberately
put to death by the state.12 The right to life has remained unqualified in the 1996
Constitution and no significant textual changes have been made to the right to dignity
and the freedom from cruel punishment, indicating that the Constitutional Assembly
decided not to interfere with the Constitutional Court’s decision in Makwanyane. This
means that, unless the Constitution is amended, the death penalty remains an
unconstitutional form of punishment.13
(b) Self-defence and necessity

The right to life is not absolute and may be limited in terms of s 36. However, given the
importance of the right and the total and irremediable negation of it caused by an
infringement, the justification for a limitation would have to be exceptionally
compelling. The clearest case of a permissible limitation is the law permitting killing
someone to save one’s own life or someone else’s life. In Makwanyane, Chaskalson P
held that the law may legitimately permit killing in self-defence.14 In addition, lethal
10
Ibid [137].
11
Ibid [166] (Ackermann J); [174] (Didcott J); [208], [214] (Kriegler J); [217], [234] (Langa J); [268]
(Mahomed J); [313] (Mokgoro J); [318], [344] (O’Regan J); [350], [357] (Sachs J).
12
As Mahomed J [269] put it: ‘[d]oes the right to life guaranteed by s 11 [IC], include the right of every
person, not to be deliberately killed by the State, through a systematically planned act of execution sanctioned by
the State as a mode of punishment and performed by an executioner remunerated for this purpose from public
funds? The answer to that question, is in my view: ‘‘yes, every person has that right’’.’ See also [166]
(Ackermann J); [176] (Didcott J); [208] (Kriegler J); [217] (Langa J); [334] (O’ Regan J).
13
Section 277 of the Criminal Procedure Act 55 of 1977 authorised the death penalty as competent sentence
for murder, rape, robbery with aggravating circumstances, kidnapping, child-stealing and treason in time of war.
The court’s declaration of invalidity struck down all except the last, leaving open the possibility that the death
penalty could be imposed for treason. This last vestige of the statutory death penalty was removed by the
Criminal Law Amendment Act 105 of 1997, which repeals s 277 of the Criminal Procedure Act in its entirety.
The 1997 Act also provides a mechanism for substituting all pre-Makwanyane death sentences with appropriate
penalties. The provisions of the amendment Act were considered in Sibiya v Director of Public Prosecutions,
Johannesburg 2005 (5) SA 315 (CC).
14
Ibid [138]. See, further, Ntamo v Minister of Safety and Security 2001 (1) SA 830 (Tk), where Madlanga
AJP held [35] that the legal convictions of the community on the common law of self-defence are informed by,
inter alia, the right to life in the Constitution. He then applied a rather strict two-pronged test to determine
whether the police could rely on private defence to justify the killing of a gun-wielding individual who was
threatening the lives of others. Private defence could not succeed, the court held, where the threatened harm
could be avoided without the use of force. Where force was necessary, it had to be proportional to the harm. In
the circumstances, the bungling of the police, their lack of professionalism in approaching the deceased (the
260
Life 11.2
force may legitimately be applied by the state to kill a hostage taker to save the life of an
innocent hostage whose life is in real danger.15 The state may also kill, Chaskalson P
suggested, when putting down a rebellion or protecting itself from external aggression.16
However, all these situations clearly differ from the execution of a criminal by the state.
In the case of killing in self-defence or the killing of a hostage-taker, the right to life of
the offender has to be balanced against the right to life of the victim. In emergency
situations such as these, there is no other alternative than to destroy life and a law
permitting killing constitutes a legitimate limitation of the right to life.17 In the case of
rebellion or war, the court held that the killing must, by necessary implication from the
fact that any constitutional state could legitimately act to defend itself from rebellion or
external aggression, be constitutionally permissible.18
(c) Killing while making an arrest

Can the law permit a police officer to kill an escaping suspect or convict? Chaskalson P
stated in Makwanyane that killing in such circumstances could not be equated with
execution. However, he indicated, one of the consequences of the establishment of a
constitutional state which respects every person’s right to life is that tighter restrictions
on the use of lethal force in making an arrest may have to be introduced. The court
deliberately refrained from expressing an opinion on the constitutional validity of
s 49(2) of the Criminal Procedure Act 51 of 1977,19 but indicated that Parliament would
have to consider amending the provision in the light of the constitutional recognition of
the right to life.20
Parliament responded by enacting a replacement for s 49 in 1998, but due to
objections from the police, the government did not put the new provision into operation
until July 2003.21 In the meantime, s 49(2) was declared invalid by the Constitutional
Court in S v Walters.22 The section permitted killing to achieve the object of arresting
policeman chosen to apprehend the deceased was in civilian clothing) and their lack of planning meant that the
defence had to fail and the Minister was liable in damages for the wrongful killing of the deceased. See also S v
Dougherty 2003 (2) SACR 36 (W) (the test to determine whether an attacked person’s defensive conduct was
reasonable is more onerous since the entrenchment of the right to life in the Constitution). The decision is
criticised by CR Snyman ‘Private Defence in Criminal Law—An Unwarranted Raising of the Test of
Unreasonableness’ 2004 (67) THRHR 325, 330 (Constitution does not require ‘that the attacker must now be
treated more leniently in that the person invoking private defence now has a ‘‘higher hurdle’’ to overcome before
a court can find that he acted in private defence’).
15
16
Ibid [139].
17
Some of the other judges handled the question of self-defence slightly differently, distinguishing the death
sentence from self-defence. The former was a form of deliberate and systematic killing. See [176] (Didcott J);
[269]–[270] (Mahomed J); [355] (Sachs J).
18
As interpreted by Chaskalson P, the interim Constitution’s supremacy clause (s 4) required the state to
respect fundamental rights, unless, by necessary implication, it was permitted to depart from the Bill of Rights. It
is doubtful whether this was a correct interpretation of the supremacy clause. In any event, the supremacy clause
of the 1996 Constitution (s 2) does not contain the qualification ‘by necessary implication’. Since the right to life
is non-derogable, even during states of emergency (s 37), killing to put down a rebellion or during war will now
have to be justified in terms of the limitation clause.
19
The subsection permitted a police officer to use deadly force when arresting a person reasonably suspected
of committing a Schedule 1 offence if the officer cannot effect the arrest or prevent the suspect from fleeing other
than by killing the suspect. See the discussion in Du Toit Commentary on the Criminal Procedure Act 25ff.
20
S v Makwanyane (note 1 above) [140] (Chaskalson P).
21
See s 7 of the Judicial Matters Second Amendment Act 122 of 1998. The Act was promulgated in December
1998, but s 7 remained in abeyance until 18 July 2003 (Proc R54 of 4 July 2003).
22
Ex parte Minister of Safety and Security: in re S v Walters 2002 (4) SA 613 (CC).
261
someone, thereby limiting the rights to life, dignity and physical integrity of victims. It
made an attempt at balancing the public interest in arresting suspects against the
wholesale violation of rights that it sanctions by allowing killing only of arrestees
suspected of the relatively serious offences listed in Schedule 1 of the Criminal
Procedure Act. But the trouble is that Schedule 1 (containing a list of crimes ranging
from treason to bestiality) was a wholly irrational basis for justifying the killing of
suspects:
The protection due to the rights of a suspect fleeing from arrest cannot be lifted merely
because there is to be an arrest for having committed one or other of the wide variety of
offences listed in the First Schedule. . . . [T]his schedule not only includes relatively trivial
offences, but what is more important, it includes offences involving no suggestion of
violence and no hint of possible danger to anyone. The list is therefore simply too wide and
inappropriately focused to permit a constitutionally defensible line to be drawn for the
permissible use of deadly force.23
The court therefore declared s 49(2) invalid. This meant that, for over a year between the
court’s order and the coming into effect of the new s 49, the use of deadly force in the
context of arrest of a suspect could only be justified on the common-law grounds of
self-defence or defence of another person.24 The replacement s 49 allows killing or the
infliction of grievous bodily harm to effect an arrest only when necessary to protect the
arrestor or someone else from death or grievous bodily harm.
11.3 THE DUTY TO PROTECT AND PRESERVE LIFE
(a) The state’s duty to protect life

The state has obligations to ‘respect, protect, promote and fulfil’ the rights in the Bill of
Rights.25 In the case of the right to life, this translates into both negative and positive
duties. We have dealt so far with the negative dimensions of the right to life: the duty
not to take someone’s life. The right to life can also be interpreted positively as placing
a duty on the state to protect the lives of its citizens. In Makwanyane this interpretation
was put forward as an argument justifying the retention of the death sentence.26 The
Attorney-General argued that the deterrent and preventative effects of the death sentence
are a way of fulfilling the state’s constitutional obligation to protect life. The argument
failed. The court held that whether one sees the death sentence as forming part of the
state’s duty to protect life or not, it remains a form of punishment which needs to
conform with the Bill of Rights and, in particular, with the prohibition of cruel, inhuman
or degrading forms of punishment.
23
Walters (note 22 above) [45].
24
Ibid [54(i)]. The declaration of invalidity affected only the provision authorising lethal force. At [39] the
Constitutional Court endorsed the Supreme Court of Appeal’s decision in Govender v Minister of Safety and
Security 2001 (4) SA 273 (SCA) which employed the technique of reading down to hold that, if suitably
interpreted, s 49(1) of the Criminal Procedure Act was valid. The sub-section permits the use of non-lethal force
to effect the arrest of a resistant or fleeing suspect. It must, according to the SCA, be interpreted to exclude the
use of a firearm or similar weapon unless the person authorised to arrest, or assist in arresting, a fleeing suspect
has reasonable grounds for believing 1) that the suspect poses an immediate threat of serious bodily harm to him
or her, or a threat of harm to members of the public; or 2) that the suspect has committed a crime involving the
infliction or threatened infliction of serious bodily harm [24].
25
Section 7(2).
26
Note 1 above [193].
262
Life 11.3
The positive duties imposed by the right to life mean, at the very least, that the state is
under a constitutional obligation to protect its citizens from life-threatening attacks.27 In
Carmichele v Minister of Safety and Security,28 in the course of a discussion of the
common-law duties of the state to protect human life, the court adopted the following
description of the positive dimensions of art 2(1) of the European Convention on Human
Rights:
It is common ground that the State’s obligation in this respect extends beyond its primary
duty to secure the right to life by putting in place effective criminal law provisions to deter
the commission of offences against the person backed up by law-enforcement machinery for
the prevention, suppression and sanctioning of breaches of such provisions. It is thus
accepted by those appearing before the Court that Article 2 of the Convention may also
imply in certain well-defined circumstances a positive obligation on the authorities to take
preventive operational measures to protect an individual whose life is at risk from the
criminal acts of another individual.29
While, generally speaking, the duty requires the state to enforce the criminal law to the
best of its ability in some circumstances, the duty may entail more specific conduct by
the state. In Mohamed v President of the Republic of South Africa30 the court held that
the positive duty has implications for the deportation and extradition of individuals to
jurisdictions where they may face the death penalty. The case dealt with the removal to
the United States (by South African immigration authorities co-operating with US law
enforcement officials) of Khalfan Mohamed, who had been indicted for alleged
involvement in the bombing of US embassies in Kenya and Tanzania. On his arrival in
New York he was charged with various offences related to the bombing and informed by
the court that the death penalty could be imposed on him if he was convicted.
The Constitutional Court found that the removal of Mohamed was unlawful, since
it was not, contrary to the state’s argument, authorised as a deportation of an illegal
immigrant under the applicable immigration legislation. Even if the letter of the
immigration law had been followed, there was a more fundamental problem with the
conduct of the South African authorities. No assurance had been sought from the US
authorities that Mohamed would not be subject to the death penalty if he was
27
Chaskalson P held in S v Makwanyane (note 1 above) [117] that the state is obliged to take action to protect
human life. Ackermann J refers to the obligation of the state to protect the rights of individuals as forming part of
the ‘constitutional state compact’ in which citizens gave up their right to self-help in return for state protection
against violence [168].
28
Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC)
29
Ibid [45], referring to Osman v United Kingdom 29 EHHR 245 [115]. The Constitutional Court held that the
Constitution required the common law of delict to be developed to recognise that the state had a duty of care to
protect individuals from unlawful life-threatening attacks by another private person. Following Carmichele, the
High Courts and the SCA have developed the law of delict so as to provide remedies for breach of the state’s
constitutional obligations arising from the rights to dignity, life and freedom and security of the person. See
Carmichele v Minister of Safety and Security 2003 (2) SA 656 (C), Minister of Safety and Security v Hamilton
2001 (3) SA 50 (SCA) (police have duty to exercise reasonable care in considering, investigating &
recommending application for firearm licence and are liable for damages for a shooting by unfit person to whom
firearm licence issued); Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) (damage
arising from negligent failure by police to exercise powers to remove firearms from person they know to be
dangerous compensable); Van Eeden v Minister of Safety and Security 2003 (1) SA 389 (SCA) (liability for
damages for negligent failure by police to prevent dangerous criminal from escaping from custody); Minister of
Safety and Security v Carmichele 2004 (3) SA 305 (SCA) (liability for negligent failure to oppose bail for
dangerous offender).
30
Mohamed v President of the Republic of South Africa 2001 (3) SA 893 (CC).
263
removed to the United States. This was a violation of the state’s duty to protect the
right to life:
The removal of Mohamed to the United States could not have been effected without the
cooperation of the South African immigration authorities. They cooperated well knowing
that he would be put on trial in the United States to face capital charges. . . . They must also
have known that there was a real risk that he would be convicted, and that unless an
assurance to the contrary were obtained, he would be sentenced to death. In doing so they
infringed Mohamed’s rights under the Constitution and acted contrary to their obligations to
uphold and promote the rights entrenched in the Bill of Rights.31
The court declared the conduct of the officials and the removal unconstitutional and
illegal. It violated the right to life, the right to dignity and the protection against cruel,
inhuman and degrading punishment. The principal failing of the South African
authorities was that they did not seek an assurance from the United States, before
consenting to the appellant’s removal, that he would not be sentenced to death. 32
The Constitutional Court decision in Kaunda33 arose from an incident in which
the applicants had been arrested in Zimbabwe on charges that they had plotted to
stage a coup in Equatorial Guinea. Relying on the authority of Mohamed, the
applicants sought relief in the form of an order directing the South African
government to seek assurances from the governments of Zimbabwe and Equatorial
Guinea that the death penalty would not be imposed on the applicants. The reliance
on Mohamed was, according to Chaskalson CJ for the majority of the court,
misplaced:
The facts of the present case are entirely different. The applicants were not removed from
South Africa by the government, or with the government’s assistance. They left South Africa
voluntarily and now find themselves in difficulty in Zimbabwe and at risk of being extradited
to Equatorial Guinea. Their arrest in Zimbabwe, the criminal charges brought against them
there, and the possibility of their being extradited from Zimbabwe to Equatorial Guinea are
not the result of any unlawful conduct on the part of the government or of the breach of any
duty it owed to them.34
Once outside the national territory, the applicants could not rely on their constitutional
rights, including the right to life.35 While the death penalty was unconstitutional in
South Africa, it was not prohibited in international law.36 Any engagement by the South
31
Ibid [60].
32
The registrar of the Constitutional Court was directed to forward a copy of the court’s judgment to the US
Federal Court in New York. As it turned out, this was unnecessary. Mahomed was not executed. He and three
co-accused were convicted and sentenced by a jury to life imprisonment without the possibility of parole for their
role in the bombings. ‘Four Are Sentenced to Life in Prison In 1998 US Embassy Bombings’ New York Times 19
October 2001.
33
Kaunda v President of the Republic of South Africa 2005 (4) SA 235 (CC).
34
Ibid [50]. In her dissenting judgment, O’Regan J held that the majority’s basis for distinguishing Mohamed
from the present case was incorrect. It was rather that ‘when a state takes steps to deport or extradite a person to
another country, it is an appropriate and practical time for the state to seek assurances to prevent the imposition or
execution of the death penalty. On the other hand, when law enforcement officials exchange information about
potential criminal conduct, it is not an appropriate time to seek such assurances. . . . Without the timely exchange
of information between different law enforcement agencies, international crime such as terrorism, drug
trafficking, money laundering, crimes against humanity and unlawful mercenary activities will flourish’ [255].
35
Ibid [54]. At [55] and [56] the court distinguished between extradition proceedings within South Africa,
which are subject to constitutional scrutiny, and the non-retention of constitutional rights if extradition takes
place, or if the national is out of the country.
36
Ibid [98].
264
Life 11.3
African government with the government of another state on mitigation of punishment

of a South African national was a matter of foreign relations.37 Deference had to be
given to government policy on the conduct of foreign relations and could not be
compelled by court order to seek assurances that the death penalty would not be
imposed.38
The principle established in Mohamed has been restated by the Constitutional
Court as follows:
The principle is that the government has no power to extradite or deport or in any way
remove from South Africa to a retentionist state any person who, to its knowledge, if
deported or extradited to such a state, will face the real risk of the imposition and execution
of the death penalty.39
The principle is applicable irrespective of whether the person facing removal entered the
country legally or illegally.40
In Tsebe, the Minister of Home Affairs sought a declaration to the effect that, after
the government had sought an assurance from the requesting state that the death
penalty would not be applied and that state had refused to give such a declaration,
that the government was at liberty to deport, extradite or remove the individual
concerned.41 This was, according to the court, ‘untenable’:
We as a nation have chosen to walk the path of the advancement of human rights. By
adopting the Constitution we committed ourselves not to do certain things. One of those
things is that no matter who the person is and no matter what the crime is that he is alleged
to have committed, we shall not in any way be party to his killing as a punishment and we
will not hand such person over to another country where to do so will expose him to the real
risk of the imposition and execution of the death penalty upon him.42
(b) Abortion and euthanasia

Abortion and euthanasia raise difficult questions of moral philosophy which fall beyond
the scope of this work. We will focus here on the constitutional ramifications of abortion
and euthanasia, some of which were described by Mahomed J in Makwanyane:
[w]hat does the [the right to life] mean? What is a ‘person’? When does ‘personhood’ and
‘life’ begin? Can there be a conflict between the ‘right to life’ in s 9IC and the right of a
mother to ‘personal privacy’ in terms of s 13IC and her possible right to the freedom and
control of her body? Does the ‘right to life’, within the meaning of s 9IC preclude the
practitioner of scientific medicine from withdrawing the modern mechanisms which
mechanically and artificially enable physical breathing in a terminal patient to continue, long
beyond the point, when the ‘brain is dead’ and beyond the point when a human being ceases
to be ‘human’ although some unfocused claim to qualify as a ‘being’ is still retained? If not,
37
The position might be different, the court indicated, if the proceedings and prescribed punishments in the
foreign jurisdiction were, unlike the death penalty, inconsistent with international law. Ibid [57] and [100]. See
the discussion of the fairness of trial proceedings in Equatorial Guinea at [144]ff.
38
Ibid [102]. The government’s stated policy was to make representations to a foreign government on the
appropriateness of the death penalty after it had been imposed as a punishment by a court. Ibid [99].
39
Minister of Home Affairs v Tsebe 2012 (5) SA 467 (CC) [43] (footnote omitted).
40
Ibid [65].
41
Ibid [66]. The state in question, Botswana, had declined to give such an assurance because its domestic law,
and the extradition treaty between South Africa and Botswana, did not provide for it [9].
42
Ibid [67].
265
can such practitioner go beyond the point of passive withdrawal into the area of active
intervention? When? Under what circumstances?43
From a constitutional perspective, the issues of abortion and euthanasia both call for the
resolution of conflict between the right to freedom and physical integrity and the state’s
duty to protect life (developing life in the case of abortion and dying life in the case of
euthanasia). Historically, most jurisdictions have favoured the protection of life, at the
cost of individual freedom and physical integrity. This has resulted in a number of
freedom-based challenges to restrictive laws.44 Increasingly, however, laws have begun
to favour freedom of choice, resulting in court challenges by proponents of strong
government intervention to protect life.
In South Africa, the Choice on Termination of Pregnancy Act 92 of 1996 permits
abortion on request by a woman during the first 12 weeks of her pregnancy, for
medical or social reasons in the 13th to 20th week of pregnancy and, after the 20th
week, to save the life of the woman or to prevent the foetus being born malformed
or injured. Counselling is not obligatory. In Christian Lawyers’ Association of South
Africa v Minister of Health45 the Act was challenged in the High Court on the basis
that it permitted the termination of human life. The High Court rejected the
challenge on the basis that the word ‘everyone’, used in s 11 to describe the bearers
of the right to life, does not include a foetus. In our view, the issue of the
constitutionality of permissive abortion legislation cannot simply be reduced to the
question of whether the foetus is a person. 46 While the state clearly has an interest
in protecting developing life, the question is whether the state has a constitutional
duty to protect developing human life.47 If so, the extent of the duty must be
established. Currently, during the first twelve weeks of pregnancy, the state merely
undertakes to promote non-compulsory and non-prescriptive counselling. Is this
sufficient? For various reasons, the Constitutional Court is likely to hold that it is.
This is because the 1996 Constitution explicitly entrenches a right to make decisions
concerning reproduction.48 Besides preventing the prohibition of use of
contraceptives, it is difficult to avoid the conclusion that this right was specifically
included to secure the right of pregnant women to make a decision to terminate a
pregnancy.
43
Note 1 above [268].
44
Most well known are the United States Supreme Court decisions in Roe v Wade 410 US 113 (1973)
(successful privacy challenge of a law criminalising abortion) and Cruzan v Director Missouri Dept of Health
497 US 261 (1990) (unsuccessful application to terminate feeding of patient in vegetative state).
45
Christian Lawyers’ Association of South Africa v Minister of Health 1998 (4) SA 1113 (T).
46
See D Meyerson ‘Abortion: the Constitutional Issues’ (1999) 116 SALJ 50 at 59 (constitutional arguments
about abortion are not exhausted by a finding that the foetus does not have a right to life under the Constitution;
there are additional considerations stemming from the value of human dignity relevant to the validity of
legislation regulating access to abortion). In the field of bioethics it has been argued that respect for the capacity
of a foetus for human dignity prohibits gene selection techniques that entail abortion unless there is a
countervailing rights-based reason for the abortion. See the discussion by D Beyleveld & R Brownsword Human
Dignity in Bioethics and Biolaw (2001) 156–158.
47
See T Naudé ‘The Value of Life: a Note on Christian Lawyers’ Association of SA v Minister of Health’
(1999) 15 SAJHR 541 (legislation allowing termination of developing human life may threaten the high regard in
which human life must be held in terms of s 11, read with the duty of the state to promote the right to life in terms
of s 7(2)).
48
Section 12(2)(a). See also Christian Lawyers’ Association v Minister of Health 2005 (1) SA 509 (T).
266
Life 11.3–11.4
As far as euthanasia is concerned, in South Africa, as in most countries, life does

not have to be artificially preserved when a patient is clinically dead.49 In other
words, once the patient is certified as dead, life-sustaining treatment or equipment
may be stopped. A legally and mentally competent person may further refuse life
prolonging treatment. A wish not to have one’s life artificially prolonged may also
be communicated in a so-called living will.50 Passive euthanasia is therefore not
currently considered unlawful. However, assisted suicide and active euthanasia are
treated as murder by the common law. For example, a doctor may not provide a
terminally ill patient with a lethal injection nor administer such an injection at the
request of the patient.51 In terms of the current law therefore, a person may not be
actively killed, but life-sustaining treatment may be withdrawn even if this would
cause the patient to die from natural causes.
The South African Law Commission, in its Discussion Paper on Euthanasia and
the Artificial Preservation of Life,52 has proposed legislation that would permit a
medical practitioner to carry out a patient’s request to die. The patient must be
terminally ill, subject to extreme suffering, but mentally competent. A second,
independent medical practitioner must confirm the diagnosis and the findings must be
recorded in writing. The request must therefore be based on an informed and
well-considered decision and the patient must make it repeatedly.
From a constitutional perspective, the Law Commission’s proposal does seem to
strike a proper balance between the state’s duty to protect life and a person’s right
(derived from the rights to physical and psychological integrity53 and to dignity54) to
end his or her life.
11.4 THE RIGHT TO A LIFE THAT IS WORTH LIVING

We have dealt so far with the right to life as a guarantee of physical existence. However,
as O’Regan J succinctly explained in Makwanyane, the right to life means more. Read
together with the right to dignity with which it is ‘entwined’, it incorporates a right to an
existence consonant with human dignity. According to O’Regan J,
[t]he right to life is, in one sense, antecedent to all the other rights in the Constitution.
Without life in the sense of existence, it would not be possible to exercise rights or to be the
bearer of them. But the right to life was included in the Constitution not simply to enshrine
the right to existence. It is not life as mere organic matter that the Constitution cherishes, but
the right to human life: the right to share in the experience of humanity. This concept of
human life is at the centre of our constitutional values. The Constitution seeks to establish a
society where the individual value of each member of the community is recognised and
treasured. The right to life is central to such a society. The right to life, thus understood,
incorporates the right to dignity. So the rights to human dignity and life are entwined. The
right to life is more than existence, it is a right to be treated as a human being with dignity:
49
S v Williams 1986 (4) SA 1188 (A).
50
This seems to be implied by the decision in Clarke v Hurst NO 1992 (4) SA 630 (D).
51
See, for example, S v Hartmann 1975 (3) SA 532 (C).
52
South African Law Commission Discussion Paper 71 (1997).
53
Section 12(2).
54
Section 10.
267
without dignity, human life is substantially diminished. Without life, there cannot be
dignity.55
Sachs J, in Makwanyane, mentions the possibility that the right to life may impose a
duty on the state to create conditions which will enable all persons to enjoy a human
existence.56 The Indian Supreme Court has developed such a duty from the right to
life,57 but it is unlikely that the South African Constitutional Court will follow these
precedents. Under our Bill of Rights it is, in almost all situations, possible to deal with
the state’s responsibilities vis-à-vis people’s living conditions by referring to duties
specifically imposed by other rights in the Bill of Rights. In particular, the
socio-economic rights58 appear to codify the state’s positive constitutional obligation to
make life liveable. Traditionally, courts are also hesitant to impose duties on the state to
secure a certain standard of living, viewing this as properly the function of the
legislature and the executive. This appears to be the approach of the Constitutional
Court in Soobramoney v Minister of Health (KwaZulu-Natal),59 where the court dealt
with an application for life-saving medical treatment in the context of the
socio-economic right to health care and not the right to life. The approach was
confirmed in Khosa v Minister of Social Development,60 which holds that the
socio-economic rights in the Constitution are implicated with the rights to life, dignity
and equality. In socio-economic rights cases, these rights have to be taken into account
along with the availability of human and financial resources in determining whether the
state has complied with the constitutional standard of reasonableness.61
55
S v Makwanyane (note 1 above) [326]–[327]. See also [271] (Mahomed J); [311] (Mokgoro J). The
statement was approved by the majority of the court in Soobramoney v Minister of Health (Kwazulu-Natal) 1998
(1) SA 765 (CC) [31].
56
57
See, for example, Tellis v Bombay Municipal Corporation 1987 LRC (Const) 351 SC where the Indian
Supreme Court recognised, in principle, that the right to life (interpreted to include a right to livelihood) entitled
a group of pavement dwellers, who lived and worked on the streets, to resist eviction. See also M C Mehta v The
Union of India AIR 1986 2 SCC 966 where it was successfully argued that the right to life included the right to be
protected from industrial hazards and environmental pollution.
58
Sections 26, 27 and 28. See, further, Chapter 26 below.
59
Note 55 above, [15]. See, further, Chapter 26 below.
60
Khosa v Minister of Social Development 2004 (6) SA 505 (CC).
61
Ibid [44].
268
Chapter Twelve
Freedom and Security of the Person

12.1 Freedom of the person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 270
(a) Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 270
(b) A narrow interpretation of ‘freedom’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259
(c) The substantive and procedural components of the right . . . . . . . . . 271
(i) The threshold: deprivation of physical freedom . . . . . . . . . . . . . 272
(ii) Substantive protection: just cause . . . . . . . . . . . . . . . . . . . . . . . . . . . 273
(iii) Procedural protection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 277
(d) The right not to be detained without trial. . . . . . . . . . . . . . . . . . . . . . . . . 279
(e) Freedom from violence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 281
(f) Cruel, inhuman and degrading treatment and punishment . . . . . . . . 283
12.2 Security of the person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 286
(a) The right to bodily and psychological integrity. . . . . . . . . . . . . . . . . . . 286
(b) Decisions concerning reproduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 286
(c) Security in and control over one’s body . . . . . . . . . . . . . . . . . . . . . . . . . . 287
(d) Subjection to medical or scientific experiments . . . . . . . . . . . . . . . . . . 288
(i) Medical or scientific experiments . . . . . . . . . . . . . . . . . . . . . . . . . . . 288
(ii) Informed consent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 288
Freedom and security of the person

12. (1) Everyone has the right to freedom and security of the person,
which includes the right—
(a) not to be deprived of freedom arbitrarily or without just cause;
(b) not to be detained without trial;
(c) to be free from all forms of violence from either public or private
sources;
(d) not to be tortured in any way; and
(e) not to be treated or punished in a cruel, inhuman or degrading
way.
(2) Everyone has the right to bodily and psychological integrity,
which includes the right—
(a) to make decisions concerning reproduction;
(b) to security in and control over their body; and
(c) not to be subjected to medical or scientific experiments without
their informed consent
269
12.1 FREEDOM OF THE PERSON
(a) Introduction
Section 12 combines a right to freedom and security of the person with a right to bodily
and psychological integrity. The first of these, the right to freedom and security of the
person, plays a prominent role in South African constitutional jurisprudence. The reason
for the prominence of the right is that, although it principally protects against physical
restraints such as detention or imprisonment, it affords comprehensive protection in the
limited area to which it applies. When a person is deprived of physical freedom, s 12(1)
guarantees both substantive and procedural protection. The substantive component
requires the state to have good reasons for depriving someone of their freedom and the
procedural component requires the deprivation to take place in accordance with fair
procedures.
(b) A narrow interpretation of ‘freedom’

Section 11(1) of the interim Constitution provided that ‘every person shall have the right
to freedom and security of the person, which shall include the right not to be detained
without trial’. In Ferreira v Levin NO, Ackermann J proposed a ‘broad and generous’
reading of the subsection. Section 11(1), he held, should be read disjunctively. It
protected a ‘right to freedom’ and a separate ‘right to security of the person’. The ‘right
to freedom’, Ackermann J argued, was a constitutional protection of a sphere of
individual liberty. Read in this way, the right amounted to a presumption against the
imposition of legal and other restrictions on conduct without sufficient reason: ‘I would
. . . define the right to freedom negatively as the right of individuals not to have
“obstacles to possible choices and activities” . . . placed in their way by . . . the State’.1
Ackermann J’s expansive delineation of the right was largely rejected by the majority
of the Constitutional Court. Writing for the majority, Chaskalson P held that the primary
purpose of s 11(1) was to ensure the protection of the physical integrity of the
individual. Principally then, the subsection protected a right to physical liberty and a
right to physical security.2 ‘This does not mean’, Chaskalson P conceded, ‘that we must
construe s 11(1) as dealing only with physical integrity’. Though primarily concerned
with the protection of physical integrity, the subsection may protect more than this. If a
freedom of a fundamental nature that merits protection is identified, and if it cannot find
adequate protection under any of the other provisions in the Bill of Rights,3 there may be
a reason to look to the right to freedom to protect such a right. But to secure such
protection, the otherwise unprotected freedom should at least be fundamental and of a
1
Ferreira v Levin NO 1996 (1) SA 984 (CC) [54] (footnote omitted). The quoted phrasing is from I Berlin
‘Two Concepts of Liberty’ in Four Essays on Liberty (1969).
2
On the majority’s reading, s 11(1) was therefore directly comparable to Article 5(1) of the European
Convention on Human Rights and to a number of similarly formulated provisions in other international human
rights instruments.
3
But, in most cases, this wider conception of freedom will be protected by the specific provisions of the Bill of
Rights. These include the right to privacy (s 13), the freedoms of expression, assembly, demonstration,
association and movement (ss 15 to 18), freedom of conscience, thought and religion (s 14), freedom to choose a
place of residence (s 19), the freedom to enter, remain in and leave the Republic (s 20), and political rights (s 21).
270
Freedom and Security of the Person 12.1
character appropriate to the strict scrutiny to which all limitations of s 11 were

subjected.4
The proposed broad and open-ended formulation of s 11(1) generated a debate about
the meaning of ‘freedom’ between Ackermann J and the majority of the court in
Ferreira. Section 12(1) of the 1996 Consitution is more specific in its formulation and
the debate is unlikely to be resuscitated. The purpose of s 12(1) is made clear by the five
aspects of the right listed in s 12(1) (a) to (e), which, with the exception of s 12(1) (b),
were not included in s 11(1). These aspects all relate to physical liberty and security and
aim to protect the bodily integrity of the individual against unwarranted intrusion by the
state. Clearly, protection of physical liberty is the primary purpose of s 12(1). Section
12(2) carries this purpose further by protecting aspects of bodily self-determination. The
section should therefore be taken to protect an individual’s physical integrity against
invasion from public and private sources. It protects the individual specifically (but not
solely) against invasions of physical integrity by way of arbitrary arrest, violence,
torture or cruel treatment or punishment. On the basis of the majority’s interpretation of
s 11(1) in Ferreira, it can be added that the section may have a residual role in
protecting fundamental freedoms that are not adequately protected by other sections of
the Bill of Rights.
(c) The substantive and procedural components of the right

An analysis of s 12 cannot end with a definition of the word ‘freedom’. On the contrary,
the delineation of freedom is merely the beginning—the threshold—of the enquiry. The
next question is: what kind of protection does s 12 provide when someone is deprived of
his or her freedom? The Constitutional Court has held that s 12 guarantees both
substantive and procedural protection. In S v Coetzee O’Regan J described the two
components of the right as follows:
[there are] two different aspects of freedom: the first is concerned particularly with the
reasons for which the state may deprive someone of freedom [substantive component]; and
the second is concerned with the manner whereby a person is deprived of freedom
[procedural component]. . . . [O]ur Constitution recognises that both aspects are important in
a democracy: the state may not deprive its citizens of liberty for reasons that are not
acceptable, nor when it deprives its citizens of freedom for acceptable reasons, may it do so
in a manner which is procedurally unfair.5
In De Lange v Smuts NO, Ackermann J confirmed that both components of the freedom
right form part of s 12(1) of the 1996 Constitution:
s 12(1), in entrenching the right to freedom and security of the person, entrenches the two
different aspects of the right to freedom . . . . The one that O’Regan J . . . called the right not
to be deprived of liberty ‘for reasons that are not acceptable’ or what may also conveniently
be described as the substantive aspect of the protection of freedom, is given express
entrenchment in s 12(1) (a) which protects individuals against deprivation of freedom
4
Ferreira (note 1 above) [184]. Chaskalson P referred to ‘strict scrutiny’ because limitations of s 11 had to be
shown to be ‘necessary’ in terms of s 33(1) of the interim Constitution. Not all rights in the interim Bill of Rights
were subject to this stricter test for limitation. This particular argument obviously no longer holds under the 1996
Constitution because the limitation clause (s 36) imposes a uniform test for justifiability of all the rights in the
1996 Bill of Rights. But the possibility of extending the protection of s 12 to fundamental freedoms not protected
by other provisions of the Bill of Rights remains alive.
5
S v Coetzee 1997 (3) SA 527 (CC) [159], quoted in De Lange v Smuts NO 1998 (3) SA 785 (CC) [18].
271
‘arbitrarily or without just cause’. The other, which may be described as the procedural
aspect of the protection of freedom, is implicit in s 12(1) as it was in s 11(1) of the interim
Constitution. . . . The substantive and the procedural aspects of the protection of freedom are
different, serve different purposes and have to be satisfied conjunctively. The substantive
aspect ensures that a deprivation of liberty cannot take place without satisfactory or
adequate reasons for doing so. In the first place it may not occur ‘arbitrarily’; there must in
other words be a rational connection between the deprivation and some objectively
determinable purpose. If such rational connection does not exist the substantive aspect of the
protection of freedom has by that fact alone been denied. But even if such rational
connection exists, it is by itself insufficient; the purpose, reason or ‘cause’ for the deprivation
must be a ‘just’ one. . . . Although paragraph (b) of s 12(1) only refers to the right ‘not to be
detained without trial’ and no specific reference is made to the other procedural components
of such trial it is implicit that the trial must be a ‘fair’ trial, but not that such trial must
necessarily comply with all the requirements of s 35(3).6
In the light of this jurisprudence, the standard set by s 12(1)(a) may be reformulated in
the form of three questions:
(1) Has there been a deprivation of physical freedom?
(2) Is there a just cause for the deprivation of freedom?
(3) Is the manner of deprivation of freedom procedurally fair?
The deprivation of physical freedom is a threshold enquiry: it triggers both the
substantive protection referred to in question (2) and the procedural protection referred
to in question (3). In other words, once the applicant shows that a law or conduct
deprives him or her of physical freedom, the reason for the deprivation of freedom may
not be unacceptable (substantive protection) and the manner of depriving freedom must
be procedurally fair (procedural protection).7 If either the substantive or the procedural
component is not complied with, the state or the respondent will have to justify the
infringement under the limitation clause. We will now consider the three questions in
greater detail.
(i) The threshold: deprivation of physical freedom

The Constitutional Court’s interim Constitution jurisprudence suggests that not all
actions or measures that place constraints on physical freedom will constitute a
deprivation of freedom sufficient to trigger the application of the s 12(1)(a) right. At the
same time, it is clear that deprivation of freedom does not only mean the placing of an
individual under lock and key. While arrest or imprisonment are the clearest cases of
limitation of freedom,8 any number of lesser restrictions on physical liberty may be
imposed on individuals which may reach a level of intrusion that merits s 12(1)(a)
protection.9 Determining whether a person has been deprived of liberty therefore
6
De Lange (note 5 above) [22]–[24].
7
Zealand v Minister for Justice and Constitutional Development 2008 (4) SA 458 (CC) [25] (every
interference with physical liberty is prima facie unlawful; once such an interference is pleaded, the onus shifts to
the defendant to establish that this interference was justified).
8
Arrest even for a brief period constitutes a serious deprivation of liberty: Bid Industrial Holdings (Pty) Ltd v
Strang 2008 (3) SA 355 (SCA) [33]–[35].
9
In De Lange (ibid [28]) Ackermann J focused on the word ‘detention’, but stated that this word ‘can relate to
a variety of physical restraints’. While ‘detention’ envisages the restriction of physical movement, the nature and
extent of the space to which the restriction must apply, is not clear. Ackermann J added that the committal of a
person to prison clearly constitutes detention. Other members of the court (see Didcott J [115], Mokgoro J [127],
272
requires assessment of the duration, degree and the intensity of the constraint that has
been imposed.10 In addition, whether deprivation has taken place depends on the
situation of the person affected and the degree of freedom enjoyed prior to the restraint.
On this basis, a prisoner who is confined to a cell as punishment for an infraction of the
prison rules will not be deprived of freedom.11
The difficulty of determining whether a deprivation of freedom has occurred is
particularly acute when dealing with temporary restrictions of liberty incidental to
police investigation of crime (for example, the stopping, searching or questioning of
suspects at roadblocks, or stopping suspects and asking them to produce identification).
The determination of the threshold at which a restriction becomes a deprivation of
freedom will have important implications for the conduct of routine police work.
Placing the threshold too high may mean that individuals are unprotected against
arbitrary police conduct when it occurs in the everyday course of investigation or
prevention of crime. There will be no constitutional requirement that such invasions of
liberty be accompanied by appropriate procedural safeguards (such as requiring a
subject to be informed of the purpose of a body search) or a just cause (such as a
reasonable suspicion that the subject of the search is in possession of an illegal
substance). Placing the threshold too low may unduly hinder activities essential to
effective policing.
Mere compulsion to appear at and remain in a particular place does not engage the
right. In Ferreira v Levin12 and Bernstein v Bester13 the compulsion to show up for an
examination, to remain in attendance there, to speak and to incriminate oneself, was not
considered to be a deprivation of physical freedom.14
(ii) Substantive protection: just cause

In De Lange v Smuts NO, Ackermann J tied the substantive component to s 12(1)(a) of
the Constitution, which provides that freedom may not be deprived ‘arbitrarily or
without just cause’.15 Ackermann J then broke the substantive enquiry up into two parts.
It must first be determined whether the deprivation of physical freedom is arbitrary and
then whether the reason for the deprivation is a just one. The first part, the prohibition
O’Regan J [143], Sachs J [172]) appear to be more comfortable with the broader threshold, ie ‘deprivation of
physical liberty’.
10
Guzzardi v Italy 3 EHRR 333 (1980). There are further guidelines in European case law as to what
constitutes deprivation of liberty. For example, confinement to a cell should be considered deprivation, as should
house arrest or confinement to a particular place such as a church, school, hotel or detention centre. S Trechsel
‘Liberty and Security of Person’ in R St J MacDonald et al (eds) The European System for the Protection of
Human Rights (1993) 277, 286.
11
Trechsel (note 10 above) 289. But see Zealand (note 7 above). The applicant was detained in a maximum
security prison. He had had his conviction set aside on one offence, and was awaiting trial on other, separate
charges. He was not, however, transferred to the awaiting-trial block. The court considered the significant
difference in status between awaiting-trial prisoners and convicted prisoners detained in maximum security
facilities, finding that the latter carried a lesser set of rights and liberties than those to which the applicant was
entitled. As such, he had demonstrated a deprivation of liberty, the lawfulness of which was to be justified by the
state.
12
Note 1 above.
13
Bernstein v Bester 1996 (2) SA 751 (CC).
14
See particularly Bernstein (ibid) [51]. Sections 417 and 418 of the Companies Act 61 of 1973 provide for an
enquiry to be conducted when a company is placed in liquidation and impose obligations on persons with
knowledge of the company’s affairs to give evidence to the enquiry.
15
Note 5 above. Six members of the court appear to have held this view. See Ackermann J (Chaskalson P,
Langa DP, Madala J concurring) [23], [29]–[41]; Didcott J (Kriegler J concurring) [114].
273
against arbitrariness, meant that there must be a rational connection between the
deprivation of freedom and some objectively determinable purpose.16 The second part
requires the purpose, reason or cause for the deprivation of freedom to be ‘just’.17
Ackermann J’s two-part test is not supported by the majority of the court. It is
somewhat over-elaborate and perhaps the issues raised by the substantive dimension of
the freedom right are better addressed by simply asking, as O’Regan J does,18 whether
the grounds upon which freedom has been curtailed are acceptable.
Generally speaking, this means in our view that the cause for deprivation of freedom
must be in accordance with the basic tenets of the legal system. In De Lange v Smuts,
Ackermann J stated that the concept of ‘just cause’ must be grounded upon and
consonant with the values expressed in s 1 of the Constitution (the founding provisions)
and gathered from the provisions of the Constitution as a whole.19 This corresponds
loosely with the approach of the Canadian courts in dealing with the standard of
‘fundamental justice’ in s 7 of the Canadian Charter of Rights and Freedoms.
Fundamental justice, according to the Canadian Supreme Court, ‘cannot be given any
exhaustive content or simple enumerative definition, but will take on concrete meaning
as the courts address alleged violations of section 7’.20 The definition employed is, to
16
Ibid [23]. The prohibition of arbitrariness is at the core of the principle of legality, which forms part of the
rule of law. (See, further, para 1.3(b) in Chapter 1 above.) Any deprivation of freedom, by way of arrest or
detention, that is not authorised by law or that is not in compliance with law will be arbitrary. However, once the
principle of legality is satisfied, it will be difficult for an applicant to show that the deprivation is arbitrary.
Applicants have generally failed to show the absence of such a rational connection in the context of s 9(1) (the
equal protection clause) and s 22 (occupational freedom). The reason for this is that the rational connection test is
often applied in such a diluted form that it amounts to little more than a rational basis test. Differently put, all that
is really required is a reason for the statutory provision. The Constitutional Court would be satisfied that there is
a rational connection between the means and the end as long as the challenged measure furthers its objective in
some way. If this is so, it seems strange to require a reason for the deprivation of freedom in the first part of the
enquiry and then to require a good reason for the deprivation in the second part of the same enquiry. For example,
in De Lange, the court had to decide on the constitutional validity of s 66(3) of the Insolvency Act 24 of 1936.
The subsection provided that the presiding officer at a creditors meeting may commit a summoned person to
prison if he or she fails to produce books or documents or fails to answer fully and satisfactorily questions
lawfully put to him or her. It was accepted, without any argument, that the possibility of committal furthers the
purpose of compelling examinees to comply with their obligations under the Act.
Some life may be breathed into the prohibition of arbitrariness if the approach of the Canadian courts is
followed. They have held that where a discretion to deprive a person of freedom is conferred by legislation, that
power will be arbitrary if there are insufficient or inadequate criteria to govern its exercise. See R v Hufsky [1988]
1 SCR 621 632 (random stopping of motorists for spot checks was arbitrary detention because there were no
criteria for the selection of motorists to be stopped), Thwaites v Health Sciences Centre (1988) 51 Man R (2d)
196 (CA) (legislation allowing for the compulsory detention of person at a psychiatric facility invalidated
because the legislation failed to adequately define the class of person and the circumstances under which the
person may be detained). The Canadian courts have also overturned the deprivation of freedom if the actual
exercise of the discretion by the official is based on an improper purpose, and not on the grounds specified by the
empowering legislation. See R v Duguay [1985] 1 SCR 93 (arrest not on proper grounds, nor with an honest
belief that proper grounds were present, a violation of the arbitrary detention right). For the time being, the South
African Constitutional Court has not laid down any such requirements with reference to the prohibition of
arbitrariness. It therefore seems as if the prohibition of arbitrariness requires little more than a legal basis for the
deprivation of freedom.
17
De Lange (note 5 above) [23]. The requirement of substantive protection extends to the basis of any
deprivation of freedom as well as the extent of that deprivation: a detained person has the right not to be detained
for one second longer than the time for which his or her detention may be justified. The fact that there was a valid
basis for the original detention is insufficient to establish a basis for keeping a detainee longer than is absolutely
necessary. Arse v Minister of Home Affairs 2012 (4) SA 544 (SCA) [10].
18
Bernstein v Bester (note 13 above) [146].
19
Note 5 above [30].
20
Reference re section 94(2) of the BC Motor Vehicle Act [1985] 2 SCR 486 513.
274
say the least, commodious: ‘the principles of fundamental justice are to be found in the
basic tenets of the legal system’.21
However, despite its vagueness, the approach of some of the judges of the
Constitutional Court to the question of the validity of strict liability offences suggests
that a similar definition of ‘just cause’ would hold some appeal. In S v Coetzee, O’Regan
J argued that imprisonment following conviction of a strict liability offence would
violate the right to freedom because it is a basic principle of criminal liability that
punishment is justified by a degree of blameworthiness on the part of the accused. ‘The
state’s right to punish criminal conduct’, according to O’Regan J, ‘rests on the notion
that culpable criminal conduct is blameworthy and merits punishment. This principle
has been acknowledged by our courts on countless occasions’.22 Since criminal liability
without fault is not consonant with the basic tenets of the legal system it must be
justified under the general limitation clause.23
The starting point, then, is that deprivation of freedom would be for a just cause if it
were in accordance with the basic tenets of the legal system. Determining what the basic
tenets of the legal system are would presumably entail abstracting from the record of the
South African legal system a sense of its fundamental principles.24 This is obviously not
an analysis that can be performed with any degree of certainty as to the result.
Nevertheless, the flexibility offered by such an approach may well turn out to be
attractive to the courts. Such a flexible test may easily be adapted to suit the
circumstances of the case.
Stricter scrutiny will be employed when the deprivation of freedom amounts to longer
periods of detention or imprisonment. Certainly, it is a fundamental tenet of the legal
system that detention or imprisonment should serve a compelling public purpose such as
protecting society or an individual from harm, or punishing wrongdoing. The measure
that is employed should go no further than is necessary to achieve such a purpose.25 This
tenet is known to the constitutional law of a number of jurisdictions as the principle of
21
Ibid. See, further, P Hogg Constitutional Law of Canada 3 ed (1992) 1035ff. See also S v Boesak 2001 (1)
SA 912 (CC) [38]; S v Thebus 2003 (6) SA 505 (CC) [39].
22
S v Coetzee (note 5 above) [162].
23
Unlike the procedural component, the substantive component is not restricted to the deprivation of liberty
outside the context of a criminal trial. There, the constitutional validity of any criminal offence (at least the ones
that envisage imprisonment) may be challenged on the basis that the elements of the offence do not constitute just
cause for the deprivation of freedom. Given the high standard of procedural fairness set by the s 35(3) fair trial
right, the government may be tempted to tamper with the elements of existing offences, or to create new offences,
rather than attempt to water down the fairness of the trial. An accused charged with such offences will not be able
to place any reliance on the fair trial right, but the substantive aspect of the freedom right may well become the
focus of the enquiry. In this way, the freedom right may become a residual fair trial right, a role that was denied
to it in early decisions of the Constitutional Court such as Ferreira (note 1 above).
24
Unlawful deprivation of liberty is self-evidently not in accordance with the basic tenets of the legal system.
In Zealand (note 7 above) [44] the court held that the applicant’s detention in a maximum security facility was
unlawful in that the power to remand him in custody was not rationally related to the purpose for which that
power was given. The power was exercised in such a way that the applicant was treated as a sentenced prisoner,
whereas the purpose of that power is to ensure that accused persons attend their trials.
25
In addressing another part of the freedom right, Chaskalson P stated the following in S v Makwanyane 1995
(3) SA 391 (CC) [94]: ‘Proportionality is an ingredient to be taken into account in deciding whether a penalty is
cruel, inhuman or degrading. No Court would today uphold the constitutionality of a statute that makes the death
sentence a competent sentence for the cutting down of trees or the killing of deer, which were capital offences in
England in the 18th century.’
275
proportionality.26 Criminal prohibitions must further not be so vague that they set no
intelligible criteria or standard for human behaviour.27
In De Lange, Ackermann J held that s 66(3) of the Insolvency Act serves a
compelling and indispensable public purpose.28 The section, which provides for
committal of examinees who refuse to provide information about an insolvent’s affairs,
is a form of process in aid to ensure that the legitimate goals of the insolvency laws are
achieved and creditors are protected.29 There is no less severe measure that would
adequately guarantee that the examinee provides the required information.30 Further, the
measure is closely tailored to the purpose it is intended to serve and it goes no further
than absolutely necessary to achieve its objective.31 In terms of the law, incarcerated
examinees must be released immediately if they undertake to do what is required of
them. The Act further provides for an unrestricted reconsideration by a court of the
grounds for the examinee’s committal and continued detention.
In De Lange, Ackermann J then applied a proportionality test in reaching the
conclusion that the committal procedure constitutes a just cause for the deprivation of
freedom. In practice, most objections to the substantive injustice of measures which
infringe on freedom are likely be to measures which offend the principle of
proportionality—measures which, in brief, do more harm than good. However there is,
as has been suggested above, merit in a wide definition of the term ‘just cause’ that does
not restrict the substantive enquiry mandated by s 12(1)(a) simply to a consideration of
proportionality. The ‘just cause’ required for the deprivation of liberty means that only
measures consonant with the fundamental tenets and principles of the legal system may
qualify. In respect of some deprivations of freedom, such as detention and
imprisonment, such measures must, in addition, pass the proportionality test.32
Statutory provisions (and their common-law underpinnings) that allow arrest of civil
debtors to establish jurisdiction (arrest ad fundandam jurisdictionem) and to prevent a
26
A similar approach is taken in German law where a deprivation of personal liberty must comply with the
‘principle of proportionality, which is rooted in the rule of law’. In German jurisprudence, proportionality means
both proportionality between means and ends, and proportionality between costs and benefits. The state is
justified in depriving a person of liberty only to the extent necessary for liberty and security of themselves or
others. In addition the harm prevented by the deprivation must outweigh the harm that it causes to individual
liberty. See in this regard R Alexy A Theory of Constitutional Rights (trans J Rivers) (2002). Similar principles
can be said to underlie the European Court’s art 5 jurisprudence. See X v United Kingdom 4 EHRR 188 (validity
of detention of mental patients requires an assessment as to whether the interests of the protection of the public
prevail over the individual right to liberty to an extent sufficient to justify detention).
27
This issue was raised but left open in South African National Defence Force Union v Minister of Defence
1999 (4) SA 469 (CC) n 8.
28
De Lange (note 5 above) [40].
29
Ibid [33].
30
Ibid [40]. A fine would have been ineffectual because the examinee may then choose to pay the fine instead
of supplying the information. In any event, in the case of the insolvent, the fine would have to be paid out of the
insolvent estate.
31
Ibid [41].
32
In Lawyers for Human Rights v Minister of Home Affairs 2004 (4) SA 125 (CC) [32] provisions of the
Immigration Act 13 of 2002 that allowed detention of illegal foreigners prior to deportation from ports of entry
were held to be detention for just cause. This was on the basis of an interpretation of the relevant provisions as
requiring an immigration officer to have reason to suspect that the person concerned was an illegal foreigner prior
to ordering his or her detention. See also S v Thebus (note 21 above) [35]–[40] (absence of causation element in
the doctrine of common purpose does not result in deprivation of freedom without just cause in the event of a
conviction based on the doctrine; the Constitution envisages the prosecution and conviction of a person and the
consequent deprivation of freedom within the context of a procedurally and substantively fair trial and a
permissible level of criminal culpability, neither of which is undermined by the doctrine.)
276
debtor from leaving the country (arrest tamquam suspectus de fuga) have been declared
unconstitutional as unjustifiable infringements of the ‘just cause’ requirement.33 Both
sets of provisions are ineffective in establishing jurisdiction or preventing a debtor from
fleeing the jurisdiction; their only purpose was to coerce the debtor to pay the debt or
provide security for it in order to avoid further detention. Though imprisonment of
judgment debtors has been abolished,34 jurisdictional arrest allowed the detention of
someone for a debt that had not yet been established by a court and that might
conceivably never be established.35
(iii) Procedural protection

The requirements of fair or due process will depend on the particular circumstances of
the case:
The nature of the fair procedure contemplated by . . . [the right to freedom] will depend on
the circumstances in which it is invoked. The ‘trial’ envisaged by this right does not . . . in all
circumstances require a procedure which duplicates all the requirements and safeguards
embodied in . . . [s 35(3) of the 1996] Constitution. In most cases it will require the
interposition of an impartial entity, independent of the executive and the legislature to act as
arbiter between the individual and the state.36
In Nel v Le Roux, the applicant attacked s 205 of the Criminal Procedure Act 51 of 1977.
Section 205 provides for any person who is likely to give material or relevant
information relating to an offence, to be called upon to appear for examination. Section
189 provides for the committal of persons who refuse, without just excuse, to answer
questions at the examination.37
In Nel, the statute met the requirements of procedural fairness since the persons
who are authorised to take evidence at s 205 proceedings are either judges of the
High Court or magistrates. The subpoena to attend must be authorised by the
Attorney-General. It is acceptable that the proceedings do not have to be public since
the s 205 procedure is merely an evidence-gathering mechanism and the examinee is
not giving evidence at a criminal trial. The statute only allows imprisonment if the
presiding officer is of the opinion that the furnishing of the information is necessary
for the administration of justice or the maintenance of law and order. The caveat of a
‘just excuse’ builds in the possibility for the examinee to explain a failure to
perform. After listing these safeguards, the Constitutional Court held that s 205 of
the Criminal Procedure Act complied with the freedom right’s standard of procedural
fairness.
From a procedural fairness point of view, the situation was very different for the
civil debtor, called upon to explain a failure to comply with a court order to pay, in
terms of s 65 of the Magistrates’ Courts Act 32 of 1944. The system allowed for the
imprisonment of recalcitrant debtors who failed to persuade the court that they were
33
Bid Industrial Holdings v Strang 2008 (3) SA 355 (SCA) (arrest ad fundandam jurisdictionem invalid;
common law replaced by a rule that a High Court will have jurisdiction if the summons is served on the
defendant while in South Africa and there is sufficient connection between the suit and the area of jurisdiction of
the court concerned so that disposal of the case by that court is appropriate and convenient); Malachi v Cape
Dance Academy International (Pty) Ltd 2010 (6) SA 1 (CC) (arrest tamquam suspectus de fuga unconstitutional).
34
In Coetzee (note 38 below).
35
Malachi (note 33 above) [34].
36
Nel v Le Roux NO 1996 (3) SA 562 (CC) [14].
37
Section 203 makes clear that the examinee may invoke the right against self-incrimination.
277
unable to pay their debts. No personal notice had to be served on the debtor, nor did
possible defences have to be brought to his or her attention. Also, the mechanism
placed an onus on debtors, without their knowledge, to prove that they were unable
to pay. The lack of procedural fairness resulted in a failure to properly distinguish
between those debtors who were unable to pay and those who did not want to pay. It
was unacceptable that the former ended up in jail with the latter. In fact most of the
debtors who went to jail were those who did not respond to the s 65 notice. The
procedural safeguards therefore fell short of the freedom right’s requirements and the
mechanism was struck down by the Constitutional Court in Coetzee v Government of
the Republic of South Africa.38 From this case one may draw the conclusion that
detention by order of court will violate the freedom right where it follows
extraordinary procedures that operate unfairly on the detainee.
In De Lange v Smuts NO,39 s 66(3) of the Insolvency Act was held to comply
with the substantive component of the freedom right, but a majority of the members
of the court invalidated the provision for violating the procedural component of
s 12(1). Ackermann J, who wrote for four judges, held that the ‘trial’ prescribed by
s 12(1)(b) requires, apart from anything else, a hearing conducted by a judicial
officer in the court structure established by the 1996 Constitution.40 The officers
empowered by the Insolvency Act to commit examinees included officials from the
Master’s office. They lacked the required objective structural independence and could
not reasonably be perceived to possess it.41 To the extent that the Act permitted them
to commit examinees it was declared to be unconstitutional and invalid. Since Sachs
J, in a separate judgment, agreed with this conclusion it was the view of the majority
of the members of the court.42
O’Regan J held that it was not enough that a judicial officer presided over the
proceedings. Coercive detention must be ordered by a court of law or an independent
and impartial institution of a character similar to a court of law.43 This follows from
the fact that she agreed with the view of Conradie J in the court a quo44 that, under
the Insolvency Act, committal for coercive purposes is not ‘a judicial function’ but
an ‘administrative or quasi-judicial proceeding.’45 According to O’Regan J, even if a
magistrate presided, the proceedings remained administrative in nature. For her, it
was a requirement of procedural fairness that no person be imprisoned indefinitely
by way of administrative proceedings. Only a court of law or a similar type of
institution may perform this function.
In effect, the majority of the court held in De Lange that it would never be
appropriate to have a non-judicial officer deciding on an issue such as the deprivation
of a person’s freedom. Only judicial officers may preside over a hearing when a
person’s freedom is at stake. It is important to note that, in such matters, it does not
38
Coetzee v Government of the Republic of South Africa 1995 (4) SA 631 (CC).
39
Note 5 above.
40
Ibid [57].
41
Ibid [73].
42
Ibid [177]: ‘the authority to incarcerate for purposes of imposing penalties for past or continuing misconduct
belongs to the judiciary, and to the judiciary alone. In my view, the doctrine of separation of powers prevents
Parliament from entrusting such authority to persons who are not judicial officers performing court functions as
contemplated by s 165(1)’ (Sachs J).
43
Ibid [162].
44
See De Lange v Smuts NO 1998 (1) SA 736 (C).
45
De Lange (note 5 above) [161].
278
help to provide for appeal or review or even a full re-hearing of the issue by a court
after the deprivation of freedom has taken place. As pointed out by Ackermann J in
De Lange, this does not cure the violation of the fundamental right, but merely
restricts the violation to a shorter period.46
The degree of procedural fairness required by s 12 remains to be determined on a
case by case basis. What this means is, in our view, accurately summed up by
O’Regan J who held that the procedural safeguards required by s 12(1) ‘will depend
on the nature of the deprivation and its purpose’.47 This must be the correct
approach. In other words, the place, duration and purpose of detention determine the
level of procedural fairness required by s 12. Detention in a hospital, (even a mental
hospital) differs from detention in a prison, or a police cell. Detention to prevent the
spreading of disease differs from detention for the purpose of political oppression.
And these differences will influence the degree of procedural fairness that must
accompany the deprivation of physical freedom. As the interest implicated is
personal liberty, the standard of procedural protection will be high. But it is by no
means clear that the deprivation of physical freedom will always require the
interposition of a judicial officer. In De Lange, Ackermann J indicated, after referring
to the laws relating to the expulsion of aliens, disease control and mental health, that
the right may be subject to limitation in some circumstances.48
Section 12 does not apply to the detention of a person for a violation of the law
after conviction by an ordinary court of law.49 The mere creation of an offence
cannot amount to a deprivation of freedom without due process of law, since
imprisonment can then only follow after the fair trial envisaged by s 35(3). In
Ferreira v Levin and Bernstein v Bester, the Constitutional Court rejected the
argument that s 418 of the Companies Act, which makes the failure to comply with
the statute’s obligations an offence, infringed the freedom right. However, it must be
kept in mind that imprisonment for a statutory offence which does not require the
state to prove fault and where no defence of due diligence is available to the accused
is a violation of the right to freedom, since this is a departure from the ordinary
principles of criminal liability and therefore constitute a violation of the substantive
component of the freedom right.50
(d) The right not to be detained without trial

Section 12(1)(b) is strictly superfluous. It merely reiterates that physical freedom may
not be deprived without due process of law. Detention without trial is detention without
due process of law. It is an abuse of the power of the state to detain an individual without
allowing them recourse to the safeguards of the criminal justice process.
46
Ibid [90].
47
Ibid [143].
48
Ibid [101]. A projection confirmed in relation to the detention of illegal foreigners pending their deportation
in Lawyers for Human Rights (note 32 above). See the discussion of this case in 12(1)(d) below.
49
See Bernstein v Bester (note 13 above) [54], where the court stated that ‘Section 11(1), which pointedly
refers to detention without trial, does not include within its scope imprisonment consequent upon the sentence of
a court’. It noted [54] that even if the sanction of imprisonment authorised or required by law was out of
proportion to the offence it was doubtful that s 11(1) would be violated. Such cases would more properly be dealt
with as violations of the right against cruel punishment in s 11(2) of the interim Constitution.
50
279
However, the phrase ‘detention without trial’ has a quite specific historical and
political resonance in South Africa. It is commonly understood to mean preventative
detention for a substantial period of time and for political purposes, on the orders of an
administrative official, without recourse by the detainee to the judicial process or any
other institution independent of the executive.51 The words ‘detention without trial’ in
s 12(1)(b) should be read with this particular context in mind.
Understood in this light, the inclusion of a specific prohibition of detention without
trial is therefore symbolic. It symbolises a constitutional commitment that the abuses of
past regimes will not be repeated.52
The symbolic function of s 12(1)(b) helps us to explain an apparent anomaly. Section
35—dealing with criminal procedure rights—contemplates detention without trial in
two circumstances. An accused person awaiting his or her first court appearance may be
detained for a period of 48 hours.53 An accused person awaiting trial may be detained
pending trial where bail has not been granted.54 These provisions are not inconsistent
with s 12(1)(b). Temporary detention for a reasonable period pending arraignment and a
bail application cannot be considered arbitrary or without just cause. Similarly, where
further detention of an accused is mandated by a refusal of a court to grant bail, that
detention is not procedurally unfair because it has been authorised by judicial order as a
result of ordinary criminal procedures.
Provisions of the Immigration Act permitting detention of illegal foreigners at ports
of entry prior to deportation were upheld by the Constitutional Court in Lawyers for
Human Rights v Minister of Home Affairs.55 A port of entry is an airport or seaport, and
unlike the position at land border posts, a prospective entrant to the country who has
been refused entry cannot be simply turned away but must be confined for a time until
his or her subsequent deportation. Section 34 of the Act allows the detention of illegal
foreigners pending deportation. In the case of an arrival by air, this entails arrest and
detention for a maximum period of thirty days, unless extended by warrant of a court. In
51
Writing for a plurality, but not the majority of the Constitutional Court, Ackermann J held in De Lange (note
5 above) that s 66(3) of the Insolvency Act 24 of 1936 permitted detention without trial in violation of s 12(1).
According to Ackermann J, s 12(1)(b) permits imprisonment only after a fair trial. This requirement of a fair trial
means, at the very least, a hearing presided over by a judicial officer in the court structure established by the
Constitution. Section 66(3) was a violation of s 12(1)(b) because it allowed a presiding officer of an insolvency
proceeding to be a person other than a member of the judiciary and allowed such presiding officer to commit a
person to prison. Ackermann J’s opinion attracted three dissents. Justices Mokgoro, Didcott and Sachs all found
that the phrase ‘detention without trial’ in s 12(1)(b) had a specific historical and political meaning. That is, the
phrase applied to the kinds of politically motivated detentions common under the apartheid system and could not
be applied to insolvency proceedings. In Freedom of Expression Institute v President, Ordinary Court Martial
1999 (2) SA 471 (C) the Cape High Court preferred Ackermann J’s approach to the right. Provisions of the
Defence Act 44 of 1957 and the Military Discipline Code in the First Schedule to the Act were challenged on the
basis that the Code permitted army personnel to be tried by a court martial, presided over by three officers of the
SANDF, none of whom had to have any legal training or qualification. A court martial could impose sentences of
up to two years imprisonment. The Full Bench held that this was a violation of the right not to be detained
without trial. A ‘trial’ involved examination of a cause by an ordinary court, and the court martial was not an
ordinary court: ‘it is simply a military court sui generis which can be presided over by a layman notwithstanding
that such court has the power to deprive a convicted accused of his liberty’ ([17]–[18]). In addition, the court
martial lacked independence. Its personnel did not have security of tenure, financial security and the institution
did not have structural independence from the executive branch. ‘The lack of independence in an ordinary court
martial is apparent.’ ([21])
52
Malachi v Cape Dance Academy International (Pty) Ltd 2010 (6) SA 1 (CC) [24].
53
Section 35(1)(d).
54
Section 35(1)(e).
55
Note 32 above.
280
addition, a detainee could request confirmation of his or her detention by warrant of a

court at any time during the period of detention. If a warrant is not issued within 48
hours of the request, the detainee has to be released. The same procedure is available for
arrivals by ship. These provisions, though held to be infringements of s 12(1)(a) and
(b),56 were justifiable limitations of the rights apparently because of the necessity of the
detention and the fact that detention was for maximum period of thirty days before
continued detention had to be authorised by a court.
An alternative way of dealing with arrivals by ship was to confine them to the ship by
order of an immigration officer, pending its departure from South Africa. In these cases,
‘detention’ of this sort could, depending on the ship’s schedule, potentially be for longer
than thirty days. Because the Act did not provide for judicial authorisation of continued
detention of shipboard detainees beyond a thirty-day period, the Act was declared
unconstitutional to this extent, and the missing requirements read into the legislation.
The absence of a right to have the detention judicially confirmed within 48 hours was a
justifiable limitation of the s 12 rights:
This is reasonable and justifiable bearing in mind that it applies to persons who have not
formally entered South Africa and have no right to do so. It is reasonable that people who
arrive in South Africa without the necessary documents to enable their admission into the
country be sent back to the ship in which they arrived. The date of departure of the ship is
not under the control of the South African authorities.57
(e) Freedom from violence

This right is an innovation in the 1996 Bill of Rights.58 Though it has no direct
equivalent in the interim Constitution, it can be seen as a component (or an
amplification) of the right to security of the person. There is a right to be protected
against invasions of freedom and security whether by the state or by private individuals.
Violence against an individual is a grave invasion of personal security. Section 12(1)(c)
requires the state to protect individuals, both negatively by refraining from such
invasions itself and positively by restraining or discouraging private individuals from
such invasions.59 The right is engaged whenever there is an immediate threat to life or
physical security deriving from any source.60
56
Ibid [33].
57
Ibid [46]. An additional factor was that all detainees had the right to appeal against the decision to declare
them an illegal foreigner (s 34(1)(a) of the Immigration Act).
58
The right is modelled on art 5 of the International Convention on the Elimination of All Forms of Racial
Discrimination (1966). See Law Society of South Africa v Minister for Transport 2011 (1) SA 400 (CC) [59]. The
article deals with obligations of states to prohibit and eliminate racial discrimination and promote understanding
among races by guaranteeing equality before the law. Article 5(b) refers in particular to the ‘right to security of
the person and protection by the State against violence or bodily harm, whether inflicted by government officials
or by any individual, group or institution’. Though s 12(1)(c) is not confined to racist violence, the Racial
Discrimination Convention will provide useful comparative material for the interpretation of the right,
particularly in relation to the obligations that the right imposes on the state to prevent violence from private
sources. The Convention suggests that a right to freedom from private violence imposes positive and affirmative
obligations on the state to prohibit violence, to punish it effectively where it has occurred and to discourage the
future perpetration of violence.
59
Law Society (note 58 above) [59] and [63] (state bears the obligation to respect, protect and promote the
freedom from violence from any source). See also Christian Education South Africa v Minister of Education
2000 (4) SA 757 (CC) [47] (‘[The state] must . . . take appropriate steps to reduce violence in public and private
life. Coupled with its special duty towards children, this obligation represents a powerful requirement on the state
to act.’); S v Baloyi 2000 (2) SA 425 (CC) [11] (s 12(1)(c) read with s 7(2) obliges the state directly to protect the
281
International experience suggests that the most likely area of controversy in relation
to the negative obligations imposed on the state by the right will be assessing the limits
of the state’s power to use force, for example, in effecting arrests or breaking up
demonstrations. In this regard, s 12(1)(c) imposes two conflicting obligations on the
state. The right to freedom from state violence protects individuals from police use of an
unconstitutional degree of force. At the same time, the right to freedom from private
violence imposes an obligation on the state to use violent means where necessary to
quell or discourage violent acts by individuals that may threaten the physical security of
others.61 Certainly, the egregiously excessive uses of force to quell civil unrest known to
apartheid South Africa would be clear violations of the right. Two principles can be
suggested to delineate the legitimate scope of the state’s power to use force:
proportionality and non-excessiveness. Proportionality requires that the harm to be
averted by the use of force should be sufficient to justify its use. Non-excessiveness
means that the least violent means should be used to achieve the objective.62
Section 12(1)(c) also imposes positive duties on the state to protect individuals
against violations of their physical integrity by others. It is this set of duties, imposed
also by the rights to life and to dignity, that has prompted considerable development of
the law of delict, a development set in motion by the Constitutional Court decision in
Carmichele v Minister of Safety and Security.63 According to the Constitutional Court,
in some circumstances, there is a positive component to the rights in the Bill of Rights,
‘which obliges the state and its organs to provide appropriate protection to everyone
through laws and structures designed to afford such protection’.64 Besides ‘laws and
structures’, the obligation of the state to protect rights ‘may also imply in certain
well-defined circumstances a positive obligation on the authorities to take preventive
operational measures to protect an individual whose life is at risk from the criminal acts
of another individual’.65 These duties had to be considered when developing the law of
delict, perhaps by casting ‘the net of unlawfulness wider because constitutional
obligations are now placed on the state to respect, protect, promote and fulfil the rights
in the Bill of Rights and, in particular, the right of women to have their safety and
security protected’.66
right of everyone to be free from private or domestic violence); Rail Commuters Action Group v Transnet Ltd t/a
Metrorail 2005 (2) SA 359 (CC) [69]–[71].
60
Law Society (note 58 above) [58].
61
The right not to be subjected to violence from private sources may thus be of application where protests and
demonstrations are disrupted by violent counter-demonstrations. See Platform Ärtzte für das Leben v Austria 13
EHRR 204 (1988) (Police passively observed disruption of anti-abortion demonstration by counter-
demonstrators; court holding that freedom of assembly sometimes requires positive measures to be taken to allow
demonstrators to protest without fear of violence from their opponents). The same goes for the state’s duty to
protect its citizens against terrorism and associated violence. See 46 BVerfGE 160 (1977) (the right to life and to
inviolability of the person requires the state to protect human life against illegal interference by private
individuals).
62
The non-excessiveness principle is recognised by the South African Police Service Act 68 of 1995 which
provides in s 13(3)(b) that ‘Where a member who performs an official duty is authorised by law to use force, he
or she may use only the minimum force which is reasonable in the circumstances’. See also the discussions of the
principle of proportionality in the use of force against criminal suspects in Govender v Minister of Safety and
Security 2001 (4) SA 273 (SCA) and Ex parte Minister of Safety and Security: in re S v Walters 2002 (4) SA 613
(CC).
63
Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC).
64
Ibid [44].
65
Ibid [45], referring to Osman v United Kingdom 29 EHHR 245 at 305 [115].
66
Ibid [57].
282
The consequent reconsideration of the case by the High Court67 and the Supreme
Court of Appeal68 resulted in the development of the law of delict to encompass state
liability in circumstances where state authorities knew or ought to have known at the
time of the existence of a real and immediate risk to the life of an identified individual or
individuals from the criminal acts of a third party and that they failed to take measures
within the scope of their powers which, judged reasonably, might have been expected to
avoid that risk.69
In Law Society,70 the Constitutional Court dealt with a challenge to amendments to
the Road Accident Fund Act 56 of 1996 that abolished the common-law right to claim
compensation in delict for losses not compensable by the Fund. It held that when a
person is injured or killed as a result of negligent driving of a motor vehicle, the victim’s
right to security of the person is severely compromised and that the state incurs duties in
relation to victims of road accidents in terms of s 12(1)(c).71 The state performs this
duty, inter alia, through road safety measures reinforced by criminal sanctions72 and
through measures such as the Road Accident Fund Act which is a ‘social-security
measure . . . to ameliorate the plight of victims rendered vulnerable by motor
accidents’.73 By abolishing a common-law remedy that vindicated the right to bodily
integrity, thereby reducing the arsenal of remedies available to a victim of a road
accident, the legislative amendment limited the right in s 12(1)(c).74
The court held that the limitation was nevertheless justifiable and valid. The abolition
of the common-law remedy was part of a number of changes to the Act aimed at
achieving a road accident fund scheme that was more inclusive, transparent, predictable
and equitable than had previously been the case. It did so principally by placing a cap on
the amount of compensation claimable by a victim. The limitation of the right entailed
by this scheme was only partial, because access to compensation is not completely
excluded under the scheme, it is merely limited.75
(f) Cruel, inhuman and degrading treatment and punishment

In S v Makwanyane, the Constitutional Court held that capital punishment violated the
right not to be subject to cruel, inhuman or degrading punishment in s 11(2) of the
67
Carmichele v Minister of Safety and Security 2003 (2) SA 656 (C).
68
Minister of Safety and Security v Carmichele 2004 (3) SA 305 (SCA).
69
Ibid [33], referring to Osman (note 65 above) [116]. See also Minister of Safety and Security v Hamilton
2001 (3) SA 50 (SCA) (police have duty to exercise reasonable care in considering, investigating &
recommending application for firearm licence and are liable for damages for a shooting by unfit person to whom
firearm licence issued); Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) (duty to
compensate for damage arising from negligent failure by police to exercise powers to remove firearms from
person they know to be dangerous); Van Eeden v Minister of Safety and Security 2003 (1) SA 389 (SCA) (liability
for damages for negligent failure by police to prevent dangerous criminal from escaping from custody); K v
Minister of Safety and Security 2005 (6) SA 419 (CC) (vicarious liability of state for unlawful conduct of off-duty
policemen). The state’s duty to protect the rights of individuals against private infringements is not confined to
the rights to life, dignity and physical integrity. See Modderfontein Squatters, Greater Benoni City Council v
Modderklip Boerdery (Pty) Ltd 2004 (6) SA 40 (SCA) (‘duty to protect’, in the context of the right to property,
mandated the development of a remedy to compensate a landowner who had been the victim of a land invasion
but had received no assistance from the state in evicting the invaders).
70
Note 58 above.
71
Ibid [63].
72
Ibid [64].
73
Ibid [66].
74
Ibid [74]–[75].
75
Ibid [80].
283
interim Constitution. The majority of the court concluded that capital punishment
constituted cruel, inhuman and degrading punishment on four primary grounds: the
almost inherent arbitrariness in sentencing,76 the failure of the sentence to treat the
guilty party as a human being worthy of respect,77 the irremediable nature of the
punishment,78 the cruelty that inevitably flows from the interminable delays which
convicted individuals face when awaiting execution and often the nature of the
execution itself.79
In S v Dodo80 the court considered the version of the right in s 12(1)(e) of the
Constitution. According to the court, the three concepts ‘cruel, inhuman or degrading’
are employed disjunctively. It follows that a limitation of the right occurs if a
punishment has any one of these three characteristics. While it is not easy to distinguish
between the concepts, ‘the impairment of human dignity, in some form and to some
degree, must be involved in all three’.81 In the case of a sentence of imprisonment, the
effect of the sentence imposed must be measured. ‘Effect’ often involves a composite of
many factors: ‘it is not limited to the length of the sentence but includes its nature and
the conditions under which it is served’.82
However, in Dodo, the principal objection was to the duration rather than the effect of
the sentence. The case concerned the validity of s 51(1) of the Criminal Law
Amendment Act 105 of 1997, which in effect makes it obligatory for a High Court to
sentence an accused, convicted of offences specified in the Act, to imprisonment for life
unless, under s 51(3)(a), the court is satisfied that ‘substantial and compelling
circumstances’ exist which justify the imposition of a lesser sentence. According to the
court, the challenge amounted to an allegation that the sentence was disproportionate to
the offence: ‘the concept of proportionality goes to the heart of the inquiry as to whether
punishment is cruel, inhuman or degrading, particularly where, as here, it is almost
exclusively the length of time for which an offender is sentenced that is in issue’.83
Central to the idea of proportionality in this context is the need to protect the dignity of
human beings:
To attempt to justify any period of penal incarceration, let alone imprisonment for life as in
the present case, without inquiring into the proportionality between the offence and the
period of imprisonment, is to ignore, if not to deny, that which lies at the very heart of
human dignity. Human beings are not commodities to which a price can be attached; they
76
Makwanyane (note 25 above) [54]–[56], [95], [196], [273]–[274], [351].
77
Ibid [57]–[79].
78
Ibid [54]–[56], [95], [196], [273]–[274], [351].
79
Ibid [177]–[179], [314]. See also S v Williams 1995 (3) SA 632 (CC) (judicially imposed juvenile whippings
cruel, inhuman or degrading punishment due to the dehumanising nature of their infliction; whipping a severe
affront to the victim’s dignity as a human being). Following S v Williams, Parliament adopted the Abolition of
Corporal Punishment Act 33 of 1997. The Act repeals or amends all the remaining statutory provisions in terms
of which corporal punishment may be imposed by a court of law or a court of traditional leaders. Section 10 of
the South African Schools Act 84 of 1996 prohibits corporal punishment in schools. This section was challenged
in Christian Education SA v Minister of Education 1999 (4) SA 1092 (SE) on the basis that a ‘culture’ of corporal
correction was protected by several provisions of the Constitution, including the right to freedom of religion. The
challenge was rejected by the High Court and by the Constitutional Court in Christian Education SA v Minister of
Education (note 59 above). See also Ex parte Attorney-General, Namibia: In re Corporal Punishment by Organs
of State 1991 (3) SA 76 (NmS) 178.
80
S v Dodo 2001 (3) SA 382 (CC).
81
Ibid [35].
82
Ibid [36].
83
Ibid [37].
284
are creatures with inherent and infinite worth; they ought to be treated as ends in themselves,
never merely as means to an end. Where the length of a sentence, which has been imposed
because of its general deterrent effect on others, bears no relation to the gravity of the
offence . . . the offender is being used essentially as a means to another end and the
offender’s dignity assailed. So too where the reformative effect of the punishment is
predominant and the offender sentenced to lengthy imprisonment, principally because he
cannot be reformed in a shorter period, but the length of imprisonment bears no relationship
to what the committed offence merits. Even in the absence of such features, mere
disproportionality between the offence and the period of imprisonment would also tend to
treat the offender as a means to an end, thereby denying the offender’s humanity.84
Moreover, it was held, disproportionality sufficient to be considered an infringement of
the right would not exist where there was mere disproportionality between the sentence
that was legislated and the sentence that the offence merited. The right would be
infringed only in cases of gross disproportionality.85
That said, there was nothing constitutionally objectionable about the mandatory
life-sentence provisions. As interpreted by the Supreme Court of Appeal in S v
Malgas,86 the legislation permitted the sentencing court to impose a lesser sentence
if, on consideration of the circumstances of a particular case, it was satisfied that
they would make the prescribed life sentence unjust in that it would be
disproportionate to the crime, the criminal and the needs of society, so that an
injustice would be done by imposing that sentence. This interpretation made it clear
that the courts had a power to impose a lesser sentence than that prescribed well
before any disproportionality between the mandated sentence and the nature of the
offence became so great that it could be characterised as gross.87 There was therefore
nothing in the legislation compelling a sentencing court to impose a cruel, inhuman
or degrading punishment.
The ‘grossly disproportionate’ standard outlined in Dodo was then used in S v
Niemand88 to declare unconstitutional provisions permitting the indefinite
imprisonment of habitual criminals. The Correctional Services Act 111 of 1998 fixed
a maximum period of incarceration of fifteen years for persons declared habitual
criminals. The relevant provisions of the 1998 Act were not yet in effect when the
old Correctional Services Act 8 of 1959 was challenged as a violation of the right
not to be subjected to cruel punishment. The old Act did not stipulate a maximum
period of imprisonment for habitual criminals, effectively permitting the incarceration
of habitual criminals for life. This was held to be grossly disproportionate to the
length of the imprisonment merited by the offences for which it was imposed and to
the purpose for which it was imposed, namely to protect society against repeat
offenders: ‘The class of habitual criminal that we are concerned with here does not
pose a threat to society that warrants indefinite incarceration’.89 The indeterminate
sentence which the legislation permitted was therefore a violation of the right not to
be subjected to cruel, inhuman and degrading treatment or punishment. The
Constitutional Court commented that ‘the respondent rightly did not persist in
84
Ibid [38].
85
Ibid [39].
86
S v Malgas 2001 (2) SA 1222 (SCA) [25].
87
Dodo (note 80 above) [40].
88
S v Niemand 2002 (1) SA 21 (CC).
89
Ibid [25].
285
argument that the infringement is justifiable in terms of section 36 of the

Constitution. This would have been untenable in the light of the impending
legislation . . .’.90 A further factor that would have made an attempt at justification
unpromising was that it was the practice of the Department of Correctional Services,
notwithstanding the open-ended provisions of the old Act, to imprison habitual
criminals for a maximum period of 15 years. As a clear instance of
under-inclusiveness, it was possible to remedy the legislative omission by reading
into the 1959 Correctional Services Act a maximum period of incarceration of fifteen
years.
In Namibia, the compulsory minimum sentence of ten years for the possession of
an automatic firearm was considered to be grossly disproportionate and therefore a
violation of the constitutional protection against inhuman and cruel punishments.91
12.2 SECURITY OF THE PERSON

(a) The right to bodily and psychological integrity
The right to bodily and psychological integrity is an important innovation in the 1996
Bill of Rights. Arguably, the cluster of interests now protected by s 12(2) were protected
under the umbrella right to security of the person in s 11 of the interim Constitution. If
one followed the Canadian approach, security of the person in s 11 of the interim
Constitution included protection of personal autonomy, at least in respect of medical
treatment92 and decisions concerning reproduction.93 Section 12(2) removes any doubts
in this regard. It expressly delineates the ambit of the right to security of the person so as
to include protection of physical integrity, and extends it to the protection of
psychological integrity.
(b) Decisions concerning reproduction

The specific inclusion of this right is a recognition that the power to make decisions
about reproduction is a crucial aspect of control over one’s body. The right shores up the
validity of South Africa’s permissive abortion legislation: the Choice on Termination of
Pregnancy Act 92 of 1996.94
90
Ibid [26].
91
S v Likuwa 1999 (5) BCLR 599 (Nm).
92
Hogg (note 21 above) para 44.8.
93
R v Morgentaler (No 2) (1988) 44 DLR (4th) 384.
94
See Christian Lawyers’ Association v National Minister of Health 2005 (1) SA 509 (T) in which s 5 of the
Choice Act was challenged on the grounds, inter alia, that it infringed s 28(1)(b) and (d) by allowing a child to
make a decision about termination without the assistance and guidance of her parents or guardian. Mojapelo J
held that this argument neglected to take account of the Act’s requirement that consent to an abortion had to take
place with the ‘informed consent’ of the pregnant woman. In many cases adequately informed consent could be
given by a child under the age of 18 and, in cases where the child was not sufficiently mature to make an
informed decision without parental assistance, a child’s ‘decision’ to terminate her pregnancy would not meet the
Act’s threshold requirement for valid consent (521). Though the broader issue of the permissibility of abortion in
general was not attacked, the court observed that the Constitution ‘recognises and protects the right to
termination of pregnancy or abortion in two ways, firstly under section 12(2)(a), that is, the right to bodily and
psychological integrity which includes the right to make decisions concerning reproduction, and secondly, under
section 12(2)(b), that is, the right to control over one’s body’ (518).
286
(c) Security in and control over one’s body

In essence the right to freedom and security of the person is a right to be left alone. And
at least in relation to one’s body the right creates a sphere of individual inviolability.
Section 12(2)(b) tells us that this inviolability has two components. ‘Security in’ and
‘control over’ one’s body are not synonymous. The former denotes the protection of
bodily integrity against intrusions by the state and others. The latter denotes the
protection of what could be called bodily autonomy or self-determination against
interference. The former is a component of the right to be left alone in the sense of being
left unmolested by others. The latter is a component of the right to be left alone in the
sense of being allowed to live the life one chooses.
As for bodily integrity, s 12(2)(b) must be read with s 12(1)(c): the right to be free
from violence. Obviously, bodily security is put in jeopardy by violence. There is
therefore no need to consider whether some or other form of violent assault constitutes a
violation of the right to bodily security. But where the intrusion is more subtle there is a
need to determine whether it is a serious enough invasion of bodily security to require
protection by the s 12(2)(b) right. As Lawrence Tribe notes, ‘it is important to have a
way of talking about these matters in which the intrusion caused by the police officer
who gently shoves a person back to clear the way for an ambulance, for example, does
not amount even potentially as an invasion of privacy or personhood’.95 Not every
action by the state or by other people that involves touching one’s body in some way
will be of a level of intrusiveness sufficient to warrant constitutional attention.
Non-trivial intrusions on bodily integrity warranting constitutional attention occur
most frequently in the context of the investigation or prevention of crime. For example,
a suspected drug courier may be subjected to a body search or to an X-ray. A suspected
drunk driver may be required to provide a blood sample for analysis. In Minister of
Safety and Security v Xaba96 Southwood AJ held that the Criminal Procedure Act did
not authorise a police official to use violence to obtain the surgical removal of a bullet
from the leg of a criminal suspect for purposes of evidence. In the absence of a law of
general application authorising the constitutional infringements of the rights in
s 12(1)(c) and s 12(2)(b) the requirements of the limitation clause could not be met.
Besides criminal law, unwarranted bodily invasion has been alleged in a few other
contexts. In the US, for example, challenges to compulsory vaccination programmes97
and even to the fluoridation of water98 have merited constitutional scrutiny.
Once it has been determined that the bodily integrity right has been implicated, the
courts will be required to find criteria for distinguishing justifiable from unjustifiable
invasions. United States case law suggests the following as a set of rough and
preliminary guidelines. In order to avoid arbitrariness, a decision to invade bodily
integrity must be procedurally regular. For example close body searches must be
grounded at least on a requirement of reasonable suspicion. Where possible, a deliberate
invasion of bodily integrity must be preceded by a hearing, even if only an informal
one.99 The principle of necessity should be observed, as should the principle of
95
L Tribe American Constitutional Law 2 ed (1988) 1330.
96
Minister of Safety and Security v Xaba 2004 (1) SACR 149 (D).
97
Jacobsen v Massachusetts 197 US 11 (1905).
98
Dowell v City of Tulsa 348 US 912 (1955). See Tribe (note 95 above) 1331n.
99
Tribe (note 95 above) 1332.
287
proportionality.100 An intrusion must avoid inflicting unnecessary physical pain or

anxiety. It must not run the risk of disfigurement or injury to health.
Does bodily security and control include psychological aspects? For example, could
the right be grounds for an objection to compulsory flag saluting by schoolchildren, or
enforced recitation of oaths of allegiance or other pledges of patriotic fervour? If
anything, such compulsion affects the mind and not the body. Even if it did not fall
within the scope of s 12(2)(b), protection of psychological aspects of personality would
certainly be included in the ‘right to . . . psychological integrity’. ‘Integrity’ includes
ideas of self-determination and autonomy. In effect, then, the right to control over one’s
body includes control over one’s mind.
(d) Subjection to medical or scientific experiments

Analysis of this right breaks down into two parts. First, what constitutes medical or
scientific experiments? Second, what counts as informed consent?
(i) Medical or scientific experiments

What constitutes a medical or scientific experiment is not as simple a question as it
sounds. Many of the medical or scientific experiments with which we would be
concerned announce themselves as such: tracking the ravages of syphilis on patients
treated only with aspirin; measuring the effects of nuclear radiation on populations kept
close to reactor melt-downs; gauging the reactions of elderly patients injected with
cancer cells; calculating the death-rates of concentration camp internees subjected to an
array of pathogens.
However, it is also the case that day-to-day medical care and therapy amount to
experimentation—albeit of a slightly different sort. Medical knowledge is controvertible
and partial. When doctors prescribe approved drugs or engage in accepted practices on
their patients, they are still experimenting: no two patients react exactly alike to the
same drug or procedure; and it is often the case that it is not until after years of treatment
on a willing and large population of patients that doctors know the side-effects and
untoward reactions of various courses of treatment.
(ii) Informed consent

This point about the nature of medical experimentation also carries with it a lesson as to
the meaning of informed consent. To the extent that we agree to be treated by doctors in
the normal course of practice, we would appear to offer our informed consent. But do
doctors always tell their patients what the potential side-effects of certain drugs are?
And while limited time for full explanation may be one limiting factor, the other is that
the patient would in some instances refuse the best possible course of treatment if he or
she knew all the risks that attached. The issue, in such cases, is whether a doctor’s
reticence in such cases is to be countenanced. Who ought to be able to make the choice
as to treatment? Does the doctor’s knowledge of a procedure and the risks of treatment
versus non-treatment ever outweigh the autonomy of the patient?
100
Winston v Lee 470 US 753 (1985) (surgical removal, under general anaesthetic, of a bullet from a suspect to
determine its origin violates due process where the state has substantial evidence of the origins of the bullet from
another source).
288
Consent with respect to medical or scientific experimentation, as they are commonly

understood, is a different story. Concern about consent in normal experimental
circumstances often raises several basic sub-questions: ‘Is informed consent really
necessary in all experimental procedures, including research in the social sciences? How
informed must consent be to be truly valid? Should special groups—such as foetuses,
children, the mentally incompetent, the senile, the elderly and prisoners—be allowed to
participate in experiments not directly related to their own welfare?’101 At bottom,
however, the question is really always the same. When and to what extent can the
benefits which accrue to society for medical and scientific experimentation outweigh
considerations of individual dignity and autonomy?
101
J Arras & B Steinbock ‘Experimentation on Human Subjects’ Ethical Issues in Modern Medicine (1995)
517, 518.
289
Chapter Thirteen
Slavery, Servitude and Forced

Labour
13.1 Slavery and servitude . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 290
13.2 Forced labour. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291
Slavery, servitude and forced labour

13. No one may be subjected to slavery, servitude or forced labour.
13.1 SLAVERY AND SERVITUDE

The generally accepted definition of the term ‘slavery’ is found in art 1(1) of the Slavery
Convention of 1926 which provides that ‘slavery is the status or condition of a person
over whom any or all of the powers attaching to the right of ownership is exercised’.1
A useful starting point for defining the term ‘servitude’ is found in the Supplementary
Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices
Similar to Slavery of 1956. The Convention obliges member parties to outlaw various
‘slavery-like’ practices of economic exploitation such as debt bondage and serfdom.
Debt bondage refers to the status of a debtor who pledges his or her personal services as
security for a debt, if the value of those services is not applied to the liquidation of the
debt, or if the length and nature of the services are not limited and defined. Serfdom
refers to a tenant who is by law, custom or agreement bound to live and labour on land
belonging to another person and is required to render some service to the land owner,
whether for reward or not, and is not free to change his or her status. The Convention
also requires member states to abolish practices such as the giving away of women in
marriages or the transfer of women in consideration for money, the inheritance of
women to another person upon the death of their husbands and the delivery of children
into child labour. All these forms of servitude are prohibited, even if the consent of the
affected person is obtained.
South Africa has signed and ratified both the Slavery Convention and the 1956
Supplementary Convention. In terms of its international obligations, therefore, South
Africa is under a positive duty to eradicate slavery and servitude. This duty not only
entails the adoption of legislation which prohibits these practices, but also the
establishment of effective judicial, administrative and other measures to enforce the
prohibition.
1
See, on the terms ‘slavery’, ‘servitude’ and ‘forced labour’, A Naidu ‘The Right to be Free from Slavery,
Servitude and Forced Labour’ 1987 CILSA 108.
290
Slavery, Servitude and Forced Labour 13.1–13.2
Other international instruments aim at the eradication of practices that have been
described as ‘modern-day slavery’: forced prostitution and the trafficking of persons.2
The South African Law Reform Commission published a report recommending the
comprehensive legal regulation of trafficking in South Africa.3 According to the SALRC
Report:
South Africa is regarded as a country of destination for victims of trafficking. There have
been sporadic reports of the trafficking of South Africans to other parts of the world. South
Africa is also a transit point for trafficking operations between developing countries and
developed countries. South African women and children are trafficked internally for
purposes of commercial sexual exploitation, domestic work and other forms of labour. It is
important to note that foreigners who have been trafficked to South Africa may be
re-trafficked within the borders of South Africa. . . . Persons may be trafficked for various
purposes. These include, but are not limited to trafficking for purposes of sexual
exploitation; forced labour or slavery or practices similar to slavery or servitude; forced
marriages; begging, adoptions or the removal of organs or other body parts.4
These recommendations led to the introduction of the Prevention and Combating of
Trafficking in Persons Bill 7 of 2010. At the time of writing the Bill was still under
consideration in the National Assembly. Inter alia, the Bill proposes the creation of
criminal offences of trafficking in persons; debt bondage; destroying, confiscating,
possessing and concealing of documents of victims of trafficking; using the services of
victims of trafficking; and facilitating trafficking in persons. It will also criminalise the
act by which a carrier transports a person within or across the borders of the Republic,
knowing that that person is a victim of trafficking.
13.2 FORCED LABOUR

The International Labour Organization’s Forced Labour Convention of 1930 defines
forced labour as ‘all work or service which is exacted from any person under the menace
of any penalty and for which the said person has not offered himself voluntarily’. As is
clear from this definition, the key element in forced labour is that it is involuntary.
However, the European Commission on Human Rights does not regard the element of
voluntariness as decisive. In addition, the Commission has regard to factors such as that
the work or service to be performed is unjust, oppressive, or involves unavoidable
hardship.5 On this approach, work required, for example, from medical or legal students
2
Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others
(1951) and the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children,
Supplementing the United Nations Convention against Transnational Organised Crime (2001). South Africa is a
signatory to the Convention against Transnational Organised Crime and the Protocol (known as the Palermo
Protocol).
3
South African Law Reform Commission Report on Traffıcking in Persons (August 2008). The Report
recommends specific legislation to criminalise trafficking in persons. This would entail, inter alia, the creation of
offences of trafficking in persons; debt bondage; destroying, confiscating, possessing and concealing of
documents of victims of trafficking; using the services of victims of trafficking; and facilitating trafficking in
persons.
4
Ibid, paragraphs 1.2–1.3.
5
X v Federal Republic of Germany Application Number 4653/70 (appointment of lawyer by state to represent
client in divorce suit not forced labour). See also Iversen v Norway Application Number 1468/62 (legal
obligation to practice dentistry in remote part of the country for a period of time not unjust; a degree of state
intervention in certain professions legitimate because it serves the interests of the community as a whole); Van
der Mussele v Belgium 6 EHRR 163 (requirement that pupil advocates defend indigent defendants without pay
291
to gain entry to their professions, will not be regarded as forced labour. In South Africa,
such a requirement will in all probability be dealt with in the context of the right to
freely choose one’s trade, occupation or profession.6
Some exceptions to forced labour are recognised in the International Covenant on
Civil and Political Rights of 1966.7 The Covenant stipulates that ‘forced labour’ does
not include: (i) the performance of hard labour in pursuance of a sentence imposed by a
competent court; (ii) any work or service normally required of a person who is under
detention in consequence of a lawful order of a court, or of a person during conditional
release from such detention; (iii) any service of a military character and, in countries
where conscientious objection is recognised, any national service required of
conscientious objectors by law; (iv) any service exacted in cases of emergency or
calamity threatening the life or well being of the community and; (v) any work or
service which forms part of normal civil obligations. In South Africa, these ‘exceptions’
will be regarded as limitations of the s 13 right and they will therefore have to be
justified in terms of s 36 as rational and proportional to the objective sought to be
achieved.8
In a number of jurisdictions courts are unwilling to direct specific performance of
employment obligations, on the basis that this would be tantamount to ‘slavery’ or
‘involuntary servitude’.9 In Santos Professional Football Club (Pty) Ltd v Igesund10
Desai J cited ‘disapproval of forced labour’ as one of the factors supporting the case law
on the issue, which had uniformly refused to grant specific performance against an
employee.11 However, on appeal the full bench overturned the decision and granted
specific performance against the respondent, the head coach of the appellant’s football
teams, requiring him to continue his coaching duties for the remainder of his two-year
not an instance of forced labour; did not impose any hardship in the form of an excessive or disproportionate
burden unconnected with the profession of advocate). See, further, the discussion by N Haysom ‘Slavery,
Servitude and Forced Labour’ in H Cheadle et al South African Constitutional Law: The Bill of Rights (2002)
179–81.
6
Section 22. See, further, Chapter 22 below.
7
As does the ILO Forced Labour Convention. See Article 2(2): ‘the term ‘‘forced or compulsory labour’’ shall
not include:
(a) Any work or service exacted in virtue of compulsory military service laws for work of a purely military
character;
(b) Any work or service which forms part of the normal civic obligations of the citizens of a fully
self-governing country;
(c) Any work or service exacted from any person as a consequence of a conviction in a court of law, provided
that the said work or service is carried out under the supervision and control of a public authority and that
the said person is not hired to or placed at the disposal of private individuals, companies or associations;
(d) Any work or service exacted in cases of emergency, that is to say, in the event of war or of a calamity or
threatened calamity, such as fire, flood, famine, earthquake, violent epidemic or epizootic diseases, invasion
by animal, insect or vegetable pests, and in general any circumstance that would endanger the existence or
the well-being of the whole or part of the population;
(e) Minor communal services of a kind which, being performed by the members of the community in the direct
interest of the said community, can therefore be considered as normal civic obligations incumbent upon the
members of the community, provided that the members of the community or their direct representatives
shall have the right to be consulted in regard to the need for such services.’
8
See Haysom (note 5 above) 181–2.
9
See T Naudé ‘Specific Performance Against an Employee’ (2003) 120 SALJ 269 and the authorities cited at
269–70.
10
Santos Professional Football Club (Pty) Ltd v Igesund 2002 (5) SA 688 (C).
11
Notably Troskie v Van der Walt 1984 (3) SA 545 (O) (refusing to award specific performance to compel a
rugby player to play as contracted).
292
Slavery, Servitude and Forced Labour 13.2
contract.12 In reaching this decision, the court emphasised that the only operative reason
for refusing an award of specific performance was to avoid hardship to the defendant, a
consideration that played no part in this particular case. The court did not engage with
the forced labour argument.13
12
Santos Professional Football Club (Pty) Ltd v Igesund 2003 (5) SA 73 (C).
13
Naudé (note 9 above) comments that the prohibition on forced labour could justify a presumption against
specific performance of employment obligations, but not an outright prohibition. This is because, in some
circumstances, an order of specific performance could be a justifiable limitation of the s 13 right, but this would
be something that the plaintiff would have to demonstrate.
293
Chapter Fourteen
Privacy
14.1 The structure of s 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 294
14.2 The common-law right to privacy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 295
(a) Comparability of the common law and constitutional conception
of privacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 295
(b) The relationship between the common law and constitutional
rights to privacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 297
14.3 The general right to privacy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 297
(a) Legitimate expectation of privacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 297
(b) The continuum of privacy interests. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 298
(c) Privacy and the value of human dignity . . . . . . . . . . . . . . . . . . . . . . . . . . 301
(d) Informational privacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 302
14.4 Searches and seizures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 304
(a) Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 304
(b) The constitutionality of laws authorising searches and seizures . . 305
(c) Admission of evidence obtained by search and seizure. . . . . . . . . . . 308
(i) Admissibility of improperly obtained evidence. . . . . . . . . . . . . . 308
(ii) Civil proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 310
14.5 Privacy of communications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311
Privacy
14. Everyone has the right to privacy, which shall include the right
not to have—
(a) their person or home searched;
(b) their property searched;
(c) their possessions seized; or
(d) the privacy of their communications infringed.
14.1 THE STRUCTURE OF S 14

Section 14 has two parts. The first, contained in the first phrase of the first sentence of
the section, guarantees a general right to privacy. The second protects against specific
enumerated infringements of privacy, namely searches and seizures of someone’s
person, property or possessions and infringements of the privacy of communications. In
other jurisdictions, these two parts are dealt with in separate sections of a bill of rights.1
1
For example, in the United States the Fourth Amendment to the Constitution protects against searches and
seizures while the Fourteenth Amendment has been interpreted to include a general right to privacy. In Germany,
294
Privacy 14.1–14.2
In South Africa, however, the enumerated areas of protection form part of the general
right to privacy.
In most cases when someone’s person, home or property is searched, or when
someone’s possessions are seized or communications intercepted, s 14 will be
infringed.2 However, because the right against searches and seizures is a subordinate
element of the right to privacy, the Constitution’s protection is triggered only when an
applicant shows that a search, seizure or interception of communication has infringed
the general right to privacy. This is clear from the wording of s 14: the right against
searches and seizures is placed within the parameters of the general right to privacy. The
converse is not true, however. In other words, the right to privacy is not confined to
protecting individuals against searches and seizures or interference with private
communications.
14.2 THE COMMON-LAW RIGHT TO PRIVACY
(a) Comparability of the common law and constitutional conception of

privacy
The South African common law recognises a right to privacy. The right is protected by
an action to remedy breach of privacy, an aspect of the actio iniuriarum. The
common-law understanding of the ambit of the right to privacy and the interests it
protects is a useful starting point for interpretation of the constitutional right.3 It does not
end the enquiry, however. Though the scope of constitutional privacy probably
encompasses all the interests protected by the common-law right, privacy in the
Constitution is also wider than the common-law conception.4 Moreover, in Bernstein,
the Constitutional Court cautioned against a straightforward use of common-law
principles to interpret the constitutional right to privacy and its limitation.5 Apart from
the issue of animus iniuriandi,6 the determination of whether an invasion of the common
law right to privacy has taken place is a single enquiry. It essentially involves an
assessment as to whether the invasion is unlawful. And, as with other forms of iniuria,
the presence of a ground of justification (such as statutory authority) means that an
invasion of privacy is not wrongful. Under the Constitution, by contrast, a two-stage
analysis must be employed in deciding whether there is a violation of the right to
privacy. First, the scope of the right must be assessed to determine whether law or
conduct has infringed the right. If there has been an infringement it must be determined
whether it is justifiable under the limitation clause.
art 2(1) of the Basic Law (the right to the free development of one’s personality) is generally viewed as
entrenching the right to privacy, whereas art 10 explicitly guarantees privacy of posts and telecommunications.
2
Director of Public Prosecutions: Cape of Good Hope v Bathgate 2000 (2) SA 535 (C) [82].
3
J Neethling ‘Die reg op privaatheid en die konstitusionele hof: die noodsaaklikheid vir duidelike
begripsvorming’ 1997 THRHR 137; IM Rautenbach ‘The Conduct and Interests Protected by the Right to Privacy
in Section 14 of the Constitution’ 2001 TSAR 115, 116. See further, para 10.3 in Chapter 10 above.
4
The constitutional right has been interpreted to include protection of personal autonomy interests which the
common-law right does not. See National Coalition for Gay and Lesbian Equality v Minister of Justice1999 (1)
SA 6 (CC) [23]; J Neethling, JM Potgieter & PJ Visser Neethling’s Law of Personality 220.
5
Bernstein v Bester NO 1996 (2) SA 751 (CC) [71].
6
Compare the post-constitutional development of the law of delict, particularly in relation to animus
iniuriandi, outlined in para 16.5(c) in Chapter 16 below.
295
The common law recognises a right to privacy as an independent personality right

that is a component of the concept of ‘dignitas’.7 At common law, the breach of a
person’s right to privacy constitutes an iniuria. It occurs when there is an unlawful and
intentional acquaintance with private facts by outsiders contrary to the determination
and will of the person whose right is infringed, such acquaintance taking place by an
intrusion or by disclosure.8 There are two elements to unlawfulness: the infringement
must be subjectively contrary to an individual’s will and must also be objectively
unreasonable in the sense of being contrary to the contemporary boni mores and the
general sense of justice of the community, as perceived by the court.9 Apart from
wrongfulness, intention in the form of animus iniuriandi is required to establish a breach
of privacy.10 Animus iniuriandi is presumed once wrongful infringement of privacy has
been established by the plaintiff; the defendant must then rebut the presumption.11
Some examples of breaches of privacy recognised by the common law were
mentioned by Ackermann J in his judgment in Bernstein v Bester NO.12 They include
entry into a private residence,13 the reading of private documents,14 listening in to
private conversations,15 the shadowing of a person,16 the disclosure of private facts
which have been acquired by a wrongful act of intrusion,17 and the disclosure of private
facts in breach of a relationship of confidentiality.18 In addition to these cases, the courts
have also held that the common-law right to privacy is invaded by, inter alia, publishing
someone’s photograph without their consent,19 by disclosing that someone is
7
Bernstein v Bester NO (note 5 above) [68], citing O’Keeffe v Argus Printing and Publishing Co Ltd 1954 (3)
SA 244 (C), 247F–249D and Universiteit van Pretoria v Tommie Meyer Films (Edms) Bpk 1979 (1) SA 441 (A),
455H–456H. See also Janse van Vuuren v Kruger 1993 (3) SA 842 (A), 849; Neethling et al Neethling’s Law of
Personality 217–220. The common-law term of art dignitas is not equivalent to ‘dignity’ at common law or
‘human dignity’ in the Constitution: rather, it ‘is a collective term for personality rights (or objects) with the
exception of the right to a good name [fama] and the right to bodily integrity [corpus]’. Neethling et al 50.
8
Neethling et al Neethling’s Law of Personality 221. The common law also regards a corporation as a ‘person’
capable of holding the right against the unauthorised acquaintance of private facts. See, in this regard, Financial
Mail and Motor Industry Fund Administration v Janit 1994 (3) SA 56 (W).
9
Financial Mail v Sage Holdings 1993 (2) SA 451 (A), 462G; Neethling et al Neethling’s Law of Personality
221.
10
Neethling et al Neethling’s Law of Personality 252. This means, as Neethling et al put it, ‘that the perpetrator
must have directed his will to violating the privacy of the prejudiced party . . . knowing that such violation would
(possibly) be wrongful’ (ibid).
11
Paralleling the distribution of the onus in defamation actions: Neethling et al Neethling’s Law of Personality
253, citing Kidson v SA Associated Newspapers 1957 (3) SA 461 (W), 468–469.
12
Note 5 above.
13
S v I 1976 (1) SA 781 (RA); S v Boshoff 1981 (1) SA 393 (T), 396.
14
Reid-Daly v Hickman 1981 (2) SA 315 (ZA), 323.
15
S v A 1971 (2) SA 293 (T); Financial Mail (note 9 above) 463.
16
Epstein v Epstein 1906 TH 87.
17
Financial Mail (note 9 above) 463.
18
Janse van Vuuren v Kruger 1993 (4) SA 842 (A) (doctor disclosing status of patient); Neethling et al
Neethling’s Law of Personality 227–231.
19
O’Keeffe (note 7 above). The subject had given permission to the Argus to publish a photograph of her firing
a gun to illustrate an article; the same photograph was published without her permission in an advertisement for
guns and ammunition. As Neethling et al explain the principle established: ‘[n]o person need tolerate that even
his image (photograph) . . . is disclosed to an unlimited number of persons against his determination and will’
(Neethling’s Law of Personality 231). Other examples are Kidson v SA Associated Newspapers Ltd 1957 (3) SA
461 (W) (unauthorised publication in newspaper of photograph of nurses with caption ‘97 lonely nurses want
boyfriends’); MEC for Health, Mpumalanga v M–Net 2002 (6) SA 714 (T) (broadcast of ‘hidden camera’ video
material showing alleged medical malpractices and mistreatment of patients in public hospital a violation of
privacy; broadcast however justified on ground of public interest); Greeff v Protection 4U h/a Protect
International 2012 (6) SA 392 (GNP) (publication of video of ‘Kamp Staaldraad’ incident involving Springbok
296
Privacy 14.2–14.3
HIV-positive,20 by the wire-tapping or ‘bugging’ of private premises,21 and by peeping

at a woman while she is undressing.22
(b) The relationship between the common law and constitutional rights to
privacy
In NM the Constitutional Court was invited to consider the question of the
correspondence of the iniuria of breach of privacy with the constitutional right to
privacy. The majority of the court declined the invitation, deciding the case by way of a
straightforward application of the common law. The court reserved the question of the
necessity for development of the common law to recognise that a breach of privacy
might occur negligently, rather than only intentionally (animo iniuriandi), as is currently
the case.23
In the absence of a challenge to the constitutionality of the common law, or an
argument for its development, most privacy litigation on the horizontal dimension
entails the straightforward employment of the common-law action for breach of privacy.
This conforms with the approach taken to breach of dignity.24
14.3 THE GENERAL RIGHT TO PRIVACY
(a) Legitimate expectation of privacy

The Constitutional Court’s treatment of the interim Constitution’s right to privacy, in
Bernstein v Bester,25 remains its richest and most comprehensive interpretation of the
right. Ackermann J, for the majority of the court,26 canvassed the constitutional privacy
jurisprudence in the US, Canada and Germany. Despite the different sources of the right
in the constitutions of these three jurisdictions, Ackermann J held, there was a strong
family resemblance in the approaches that they took to privacy. He concluded that ‘it
seems to be a sensible approach to say that the scope of a person’s privacy extends a
fortiori only to those aspects in regard to which a legitimate expectation of privacy can
be harboured’. A ‘legitimate expectation of privacy’ has two components ‘a subjective
rugby team engaged in demeaning rituals; though filmed with players’ consent, this consent, did not extend to
publication of the video).
20
NM v Smith 2007 (5) SA 250 (CC) [41]. In contrast to Janse van Vuuren (note 18 above) the disclosure did
not involve a breach of confidentiality. The principle is not confined to HIV status, but encompasses a privacy
interest in ‘medical information’.
21
S v A 1971 (2) SA 293 (T); also illustrated by M–Net and Greeff (note 19 above).
22
R v Holiday 1927 CPD 395.
23
NM (note 20 above). The case involved disclosure of the fact that three individuals were HIV-positive. The
High Court held, inter alia, that the disclosure was not intentional and therefore not a breach of privacy. This
prompted, on appeal to the Constitutional Court, an argument that the common law required development to
provide greater protection for the constitutional right to privacy. The majority of the Constitutional Court held
that the case could be resolved without considering this argument because the publication had in fact taken place
intentionally: the defendants were ‘certainly aware that the [plaintiffs] had not given their consent or at least
foresaw the possibility that the consent had not been given to the disclosure’[64]. For criticism of the decision,
see S Woolman ‘The Amazing, Vanishing Bill of Rights’ (2007) 124 SALJ 762.
24
Dikoko v Mokhatla 2006 (6) SA 235 (CC) [91] (common law-remedies that vindicate constitutionally
entrenched rights constitute appropriate relief in terms of s 38 for the breach of those rights). See 10.3 in Chapter
10 above.
25
Note 5 above.
26
Kriegler J and Didcott J did not endorse the part of the majority judgment that dealt with the right to privacy
(ibid [130]).
297
expectation of privacy . . . that the society has recognised . . . as objectively

reasonable’.27
The subjective expectation component does more than say that privacy is what feels
private. It provides an explanation for the permissibility of waivers of privacy. One can
have no expectation of privacy if one has consented explicitly or implicitly to having
one’s privacy invaded. It is the second part of the definition—the objective
component—that does more work. One’s subjective privacy intuitions must be
reasonable to qualify for the protection of the right. What is reasonable, of course,
depends on the set of values to which one ties the (empty) standard of reasonableness.
(b) The continuum of privacy interests

Privacy is what can reasonably be considered to be private. Without knowing more
about the measure of reasonableness, we will not have advanced particularly far in
understanding what privacy is. At this point in Bernstein, Ackermann J introduces a
potentially more helpful way of getting a handle on privacy. This is the ‘continuum of
privacy interests’:28
The truism that no right is to be considered absolute, implies that from the outset of
interpretation each right is always already limited by every other right accruing to another
citizen. In the context of privacy this would mean that it is only the inner sanctum of a
person, such as his/her family life, sexual preference and home environment, which is
shielded from erosion by conflicting rights of the community. This implies that community
rights and the rights of fellow members place a corresponding obligation on a citizen,
thereby shaping the abstract notion of individualism towards identifying a concrete member
of civil society. Privacy is acknowledged in the truly personal realm, but as a person moves
into communal relations and activities such as business and social interaction, the scope of
personal space shrinks accordingly.29
This is not a new test, substituting for the ‘legitimate expectation’ test, but is an
application of the latter test. In the ‘truly personal realm’ an expectation of privacy is
more likely to be considered reasonable than a privacy expectation in the context of
‘communal relations and activities’. So, in Bernstein, the applicant had challenged
provisions of the Companies Act requiring him to appear as a witness at an enquiry
because ‘privacy is clearly invaded when he is forced to disclose his books and
documents that he wants to keep confidential and to reveal information that he wants to
27
Ibid [75].
28
The phrase is that of Sachs J in Mistry v Interim National Medical and Dental Council of South Africa 1998
(4) SA 1127 (CC) [27].
29
Bernstein (note 5 above) [67]. See also Ackermann J’s description of the German jurisprudence (ibid [77]):
‘A very high level of protection is given [by the German Constitutional Court] to the individual’s intimate
personal sphere of life and the maintenance of its basic preconditions and there is a final untouchable sphere of
human freedom that is beyond interference from any public authority. So much so that, in regard to this most
intimate core of privacy, no justifiable limitation thereof can take place. But this most intimate core is narrowly
construed. This inviolable core is left behind once an individual enters into relationships with persons outside this
closest intimate sphere; the individual’s activities then acquire a social dimension and the right of privacy in this
context becomes subject to limitation’. (Footnotes omitted.) Though the German Basic Law does not have an
express protection of privacy, the German Constitutional Court has developed a ‘constitutional obligation to
respect the sphere of intimacy of individuals . . . based on the right to the unfettered development of personality
embodied in Art 2(1) of the Basic Law and in determining the content and ambit of this fundamental right, regard
must be had to the inviolability of dignity in terms of Art 1(1), which must be respected and protected by the
judicial system’ (ibid [77]).
298
Privacy 14.3
keep to himself’.30 Though this was evidently a subjective expectation of privacy, it was
not a reasonable one:
The establishment of a company as a vehicle for conducting business on the basis of limited
liability is not a private matter. It draws on a legal framework endorsed by the community
and operates through the mobilisation of funds belonging to members of that community.
Any person engaging in these activities should expect that the benefits inherent in this
creature of statute, will have concomitant responsibilities. These include, amongst others,
the statutory obligations of proper disclosure and accountability to shareholders. It is clear
that any information pertaining to participation in such a public sphere, cannot rightly be
held to be inhering in the person, and it cannot consequently be said that in relation to such
information a reasonable expectation of privacy exists. Nor would such an expectation be
recognised by society as objectively reasonable.31
Ackermann J’s reasoning so far can be summarised as follows: a) privacy is a subjective
expectation of privacy that is reasonable; b) it is reasonable to expect privacy in the
‘inner sanctum’, in the ‘truly personal realm’. But this still fails to flesh out the concept
of reasonableness. A further step is needed for this to be a conception of privacy that is
more than ad hoc, that is usable in future cases. That step entails identifying the value
served by protection of the ‘inner sanctum’ and the ‘truly personal realm’. In Bernstein,
this seems to be the following: ‘The scope of privacy has been closely related to the
concept of identity and it has been stated that “rights, like the right to privacy, are not
based on a notion of the unencumbered self, but on the notion of what is necessary to
have one’s own autonomous identity”.’32 So, we can add a third step: c) this is because
a protected inner sanctum helps achieve a valuable good—‘one’s own autonomous
identity’.33
On this conception, privacy is not in itself an intrinsic, non-instrumental value in
itself. Rather, we protect privacy for instrumental reasons; this is because it
contributes to the realisation of a further value or, perhaps, several other values.34
30
Ibid [56].
31
Ibid [85].
32
Ibid [65], citing R Forst ‘How Not to Speak about Identity: the Concept of the Person in A Theory of Justice’
(1992) 18 Philosophy & Social Criticism.
33
See Case v Minister of Safety and Security 1996 (3) SA 617 (CC) [91]: ‘[w]hat erotic material I may choose
to keep within the privacy of my home, and only for my personal use there, is nobody’s business but mine’. But
autonomous identity does not refer only to control over certain physical places, such as the human body or the
home or private property, but also to certain kinds of decisions such as whether or not to have a sexual
relationship with someone. See National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1)
SA 6 (CC). In considering the constitutional validity of the common-law offence of sodomy and of various
statutory provisions based on the offence, the Constitutional Court chose to focus not only on the violation of the
right not to be discriminated against on the basis of sexual orientation, but also on the rights to privacy and
dignity: ‘Privacy recognises that we all have a right to a sphere of private intimacy and autonomy which allows
us to establish and nurture human relationships without interference from the outside community. The way in
which we give expression to our sexuality is at the core of this area of private intimacy. If, in expressing our
sexuality, we act consensually and without harming one another, invasion of that precinct will be a breach of our
privacy’ ([23]).
34
This is a routine move in the theoretical literature on privacy. See W A Edmundson ‘Privacy’ in MP Golding
& WA Edmundson (eds) The Blackwell Guide to the Philosophy of Law and Legal Theory (2004). According to
Edmundson, the various candidates for the further values served include individuality, dignity, ‘inviolate
personality’; autonomy; socialisation; inquiry; liberal democracy; learning, creativity and relaxation; mental
health and sanity; personhood and moral ownership of one’s body; the human capacities for love, friendship and
trust (6).
299
The Bernstein ‘continuum’ has proved its usefulness by providing relatively easy
answers in subsequent Constitutional Court decisions on privacy. In Mistry,35
inspection powers in the Medicines Act were phrased broadly enough to allow
inspectors ‘to enter any home where aspirins, ointments or analgesics happen to be,
and once there, . . . [to] inspect not only medicine cabinets or bedside drawers, but
also files which might contain a person’s last will and testament, private letters and
business papers’.36 By authorising intrusion on the ‘inner sanctum’, the Act permitted
the violation of privacy.37
Similarly, in Hyundai Motor Manufacturers,38 search and seizure powers in the
National Prosecuting Authority Act 32 of 1998 infringed the privacy right by
permitting the search of someone’s home. The particular search warrant that led to
the challenge in Hyundai also authorised a search of business premises. This
prompted an important qualification of the holding in Bernstein:
As we have seen, privacy is a right which becomes more intense the closer it moves to the
intimate personal sphere of the life of human beings, and less intense as it moves away from
that core. This understanding of the right flows, as was said in Bernstein, from the value
placed on human dignity by the Constitution. Juristic persons are not the bearers of human
dignity. Their privacy rights, therefore, can never be as intense as those of human beings.
However, this does not mean that juristic persons are not protected by the right to privacy.
Exclusion of juristic persons would lead to the possibility of grave violations of privacy in
our society, with serious implications for the conduct of affairs. The State might, for
instance, have free licence to search and seize material from any non-profit organisation or
corporate entity at will. This would obviously lead to grave disruptions and would
undermine the very fabric of our democratic State. Juristic persons therefore do enjoy the
right to privacy, although not to the same extent as natural persons. The level of justification
for any particular limitation of the right will have to be judged in the light of the
circumstances of each case. Relevant circumstances would include whether the subject of
the limitation is a natural person or a juristic person as well as the nature and effect of the
invasion of privacy.39
Two conclusions can be drawn from this. A value (perhaps the principal value) served
by privacy is human dignity. But that cannot be all that privacy does or we cannot
explain the privacy protection that the law gives to entities like companies that do not
possess human dignity. What that further value might be cannot be ascertained from the
Hyundai decision, however, and the question has to be put aside for now.40
35
Note 28 above.
36
Ibid [21].
37
Ibid [23].
38
Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty) Ltd: In re
Hyundai Motor Distributors (Pty) Ltd v Smit NO 2001 (1) SA 545 (CC).
39
Ibid [18] (footnotes omitted). See also J Neethling ‘Data Protection and Juristic Persons’ 2008 (71) THRHR
500, 501; Huey Extreme Club v McDonald t/a Sport Helicopters 2005 (1) SA 485 (C) [35].
40
The most that the court says about this is either circular (failure to give privacy protection to companies
would lead to ‘grave violations of privacy’) or unusably vague (‘grave disruptions’, ‘undermine the very fabric of
our democratic state’). The extension of privacy rights to companies becomes less of a puzzle if one sees it as
derivative of or secondary to the rights of human beings. In other words, according privacy to companies serves
the purpose of protecting the human beings that use companies as a vehicle for their business transactions.
300
Privacy 14.3
(c) Privacy and the value of human dignity

The next move is made in a case where the ‘continuum of privacy interests’ ran out of
explanatory steam. In S v Jordan41 one of the grounds for challenging a statutory
prohibition of prostitution was that it was a violation of the right to privacy. There is an
extensive and thought-provoking treatment of the issue in the minority decision of
O’Regan J and Sachs J.42
The trouble faced by the court is that it is difficult to locate the act of prostitution on
the Bernstein continuum of privacy interests. Prostitution is a combination of the
intimacy of a sexual act and the coldness of a cash transaction:
Commercial sex involves the most intimate of activity taking place in the most impersonal
and public of realms, the market place; it is simultaneously all about sex and all about
money. Selling sex represents an opportunity for women to earn money but within the
framework of deeply structured sexist and patriarchal patterns of social life. A prohibition on
commercial sex, therefore, will not ordinarily encroach upon intimate or meaningful human
relationships. Yet it will intrude upon the intensely personal sphere of sexual intercourse,
albeit intercourse for reward.43
This is a difficult opposition to mediate: the intimacy of the transaction would suggest
that it is at the core of privacy, while its mercantile aspects would put it in the public
domain. The minority’s next move is extremely interesting, entailing the identification
of the higher-level justification for the value that has been placed on ‘the truly personal
realm’ by the court’s privacy jurisprudence. That justification, according to the minority,
is the Constitution’s interest, stemming from the values of human dignity and equality,
in ‘establishing and nurturing human relationships’.44 On this conception of privacy,
prostitution does not merit the degree of protection that is accorded to other forms of
intimacy:
central to the character of prostitution is that it is indiscriminate and loveless. It is
accordingly not the form of intimate sexual expression that is penalised, nor the fact that the
parties possess a certain identity. . . . By making her sexual services available for hire to
strangers in the marketplace, the sex worker empties the sex act of much of its private and
intimate character. She is not nurturing relationships or taking life-affirming decisions about
birth, marriage or family; she is making money. Although counsel for the appellants was
undoubtedly correct in pointing out that this does not strip her of her right to be treated with
dignity as a human being and to have respect shown to her as a person, it does place her far
away from the inner sanctum of protected privacy rights. We accordingly conclude that her
expectations of privacy are relatively attenuated. Although the commercial value of her trade
does not eliminate her claims to privacy, it does reduce them in great degree.45
So, a prohibition of prostitution therefore does infringe the right to privacy but it is
privacy on the outer edges of the continuum, and the infringement is accordingly ‘not
41
S v Jordan 2002 (6) SA 642 (CC).
42
The issue was not particularly satisfactorily dealt with by the majority, which expressed ‘grave doubts’ that
the right was implicated: ‘I do not accept that a person who commits a crime in private, the nature of which can
only be committed in private, can necessarily claim the protection of the privacy clause’. Ibid [28] (Ngcobo J).
The majority nevertheless went on to hold that any limitation of the right possibly entailed by the prohibition
could be justified. The s 36 analysis takes no more than a sentence.
43
Ibid [81] (footnote omitted).
44
Ibid [82]. The source of this is Ackermann J’s holding in National Coalition for Gay and Lesbian Equality v
Minister of Justice (note 33 above) [32].
45
Jordan (note 41 above) [83].
301
extensive’.46 This means that justification of the infringement is relatively easy: ‘In
circumstances where the limitation of a right is not severe, where Parliament has
identified important purposes to be achieved by that limitation, and where people may
reasonably disagree as to the most effective means for the achievement of those
purposes, it is our view that it would be inappropriate for this Court to hold the
limitation unjustifiable’.47
We can summarise these developments as follows. Bernstein tells us that privacy
is not a value in itself but is valued for instrumental reasons, for the contribution that
it makes to the project of ‘autonomous identity’. Hyundai then substitutes the more
conventional constitutional value of human dignity for that of ‘autonomous
identity’.48 Jordan then seeks to give meaning to the formidably abstract concept of
human dignity by means of a lower-level conception of one of the implications of
human dignity—privacy is dignity-reinforcing to the extent that it contributes to the
establishment and nurturing of human relationships and not when a nominally private
space is used to perform an ‘indiscriminate and loveless’ act of commercial sex.
Jordan also makes clear that the spatial metaphors encountered in Bernstein and
other cases (‘inner sanctum’, ‘personal sphere’) are misleading to the extent that they
suggest that privacy is a space or a place.49 The fact that conduct takes place in
someone’s home is not decisive of the question whether it merits the protection of
the privacy right. Equally, the fact that conduct takes place outside the inner sanctum
(at work, or in the street) should not deprive it of protection. 50 What is decisive is
whether that conduct is dignity-affirming, and that it therefore conforms to the
principal purpose of the privacy right.51
(d) Informational privacy

According to the Constitutional Court in Hyundai, the right to privacy is implicated,
‘[w]herever a person has the ability to decide what he or she wishes to disclose to the
46
Ibid [84].
47
Ibid [94].
48
Bernstein is an interim Constitution case and therefore was not required to engage with the express
recognition of human dignity as a founding value, employing instead the value of ‘autonomous identity’ derived
from German jurisprudence. Though not necessarily incompatible with the idea of human dignity, it is worth
noting that ‘autonomous identity’ in German jurisprudence means something closer to free will. As James
Whitman has explained it: ‘To be free was, in the first instance, not to be free from government control, nor to be
free to engage in market transactions. Instead, to be free was to exercise free will, and the defining characteristic
of creatures with free will was that they were unpredictably individual, creatures whom no science of mechanics
or biology could ever capture in their full richness. For Germans who thought of things in this way, the purpose
of “freedom” was to allow each individual fully to realize his potential as an individual: to give full expression to
his peculiar capacities and powers’. JQ Whitman ‘The Two Western Cultures of Privacy: Dignity versus Liberty’
(2004) 113 Yale LJ 1151, 1181.
49
See also Sachs J (concurring) in National Coalition (note 33 above) [116] (right to privacy protects persons,
not places).
50
As noted in Hyundai (note 38 above) ‘when people are in their offices, in their cars or on mobile telephones,
they still retain a right to be left alone by the State unless certain conditions are satisfied’ ([16]). See also
Campbell v MGN Ltd 2004 UKHL 22 (publication of photographs of the supermodel Naomi Campbell on the
street leaving the premises of Narcotics Anonymous an infringement of her right to privacy).
51
See also De Reuck v Director of Public Prosecutions (Witwatersrand Local Division) 2004 (1) SA 406 (CC)
[59], [90], [91] (prohibition on possession of child pornography a justifiable limitation of the right to privacy;
consumption of child pornography not at the core of what the privacy right seeks to protect, making its limitation
relatively easily justifiable).
302
Privacy 14.3
public and the expectation that such a decision will be respected is reasonable. . .’.52
This particular aspect of the general right to privacy is known as ‘informational
privacy’. The right to privacy should be interpreted as protecting an individual’s interest
in what has been called ‘informational self-determination’.53 More particularly, this is
an interest in restricting the collection, use of and disclosure of personal information.
Personal information is information that reveals something about the person who is the
subject of the information; or, to use a term of art employed in this area, the ‘data
subject’ of the information.54 It also encompasses a related interest in having access to
personal information that has been collected by others in order to ascertain its content
and to check its accuracy.
In Mistry the Constitutional Court considered the following factors to be important
when considering the informational aspect of the right to privacy: whether the
information was obtained in an intrusive manner; whether it was about intimate aspects
of the applicant’s personal life; whether it involved data provided by the applicant for
one purpose which was then used for another; or whether it was disseminated to the
press or the general public or persons from whom the applicant could reasonably expect
such private information would be withheld. In Mistry, information about a possible
violation of the law by the applicant was provided by a member of the public to the
Medical Council. This information was communicated by the Council to an official who
had statutory responsibility for carrying out regulatory inspections for the purposes of
protecting the public health. Moreover, all the officials that dealt with the information
were subject to requirements of confidentiality.55 Needless to say, the court found no
violation of the applicant’s right to privacy.
The importance of legal protection for this aspect of privacy has increased as
technological advances (particularly computer databases and electronic networks) have
facilitated the collection, dissemination and interception of personal information in
electronic form. Many jurisdictions have adopted legislation creating a set of rights
(‘data protection rights’) of the person to whom personal information relates (the data
subject). These rights encompass corresponding obligations restricting the processing of
personal information by the person who controls it, including obligations not to disclose
it to third parties without the knowledge or consent of the data subject.56
After a lengthy investigation, the South African Law Reform Commission
recommended the enactment of data protection legislation modelled on the EU Data
Protection Directive.57 This recommendation has resulted in the Protection of Personal
Information Bill 9 of 2009. At the time of writing the Bill had been passed by the
National Assembly and was under consideration by the NCOP. The Bill aims to regulate
52
Hyundai (note 38 above) [16].
53
By the German Constitutional Court in its Census decision, 65 BVerfGE 1 (1983) (‘informationelle
Selbstbestimmung’). See A Roos ‘Privacy in the Facebook Era: A South African Legal Perspective’ (2012) 129
SALJ 375; LA Bygrave Data Protection Law: Approaching its Rationale, Logic and Limits (2002) 119.
54
Neethling et al Neethling’s Law of Personality 267. See Dutch Reformed Church Vergesig v Sooknunan
2012 (6) SA 201 (GSJ) [78] (gross violation of privacy to reveal someone’s email address on a public forum like
Facebook in the context of a contentious dispute raging among the participants in the forum).
55
Mistry (note 28 above) [51].
56
See A Roos ‘Data Protection: Explaining the International Backdrop and Evaluating the South African
Position’ (2007) 124 SALJ 400.
57
SA Law Reform Commission Report on Privacy and Data Protection (August 2009).
303
comprehensively the processing of personal information.58 It does so by requiring the

processing of personal information to be fair and lawful and specifying a set of general
principles of fair and lawful processing. These principles are enforceable as legislative
rights at the instance of the data subject, with the assistance of an independent authority
to be called the Information Regulator. The principles restrict the processing of personal
information by the person who controls it, including obligations not to disclose it to
third parties without the knowledge or consent of the data subject. They also entail
obligations of transparency when personal information is processed. This entails that
personal information should, in principle, be collected directly from the data subject
rather than from third parties.59 If it is necessary for it to be collected by indirect means,
the data subject should be made aware that this is taking place.60
14.4 SEARCHES AND SEIZURES
(a) Introduction
The right to privacy includes the right not to have one’s person or home searched, one’s
property searched or possessions seized. In Mistry, the Constitutional Court stated that
these provisions raise several threshold enquiries of a definitional nature. The meaning
of a search of ‘person’ and ‘home’ is clear enough. But what about a search of
‘property’? Should an extensive or narrow definition be given to the word ‘property’?
When does a regulatory inspection of business premises become a search? What about
the term ‘possessions’?61
It would not make sense to attempt to work out generally applicable definitions for
these terms. Their meaning must be determined on a case-by-case basis with reference
to the principle identified above: the individual’s subjective expectation of privacy must
be recognised by society as objectively reasonable. In Mistry, Sachs J remarked that the
object of s 14 is to protect ‘people’ not ‘places’. In other words, the purpose is to
safeguard personal privacy and not private property.62 This means that, when applying
s 14, the focus should always be on defining privacy and not terms such as ‘property’ or
‘possessions’. As we stated at the outset, for the purposes of s 14, the definition of the
latter terms is entirely dependent on the scope of the former.
In general, searches and seizures that invade privacy must be conducted in terms of
legislation clearly defining the power to search and seize. They are only permissible to
achieve compelling public objectives. Also, they must be endorsed as necessary for such
a purpose by an independent authority before they may be conducted. In other words, as
a rule, searches and seizures that violate the right to privacy must be authorised by
warrant.
In cases where a warrant is required, the statutory framework authorising the issue of
a warrant as well as the conduct of issuing a warrant in a particular case may be
58
See clause 1 of the Protection of Personal Information Bill, sv ‘data subject’, ‘personal information’,
‘processing’.
59
See clause 11 of the Protection of Personal Information Bill.
60
See clause 17(2) of the Protection of Personal Information Bill. The Promotion of Access to Information Act
2 of 2000 imposes obligations on data controllers to consult third parties whose information is the subject of a
request: ss 47–49 and 71–73.
61
Mistry (note 28 above) [16]. Section 13 of the interim Constitution referred to ‘private possessions’. In the
light of the interpretation that we propose for the term ‘possessions’, the change is insignificant.
62
Ibid [28].
304
Privacy 14.4
challenged. Since issuing a warrant is administrative action, the latter type of challenge
will mostly focus on the requirements of s 33 and the Promotion of Administrative
Justice Act. Obviously an affected party cannot be given a hearing and reasons for the
action before the search is conducted,63 but the warrant may afterwards be declared
invalid and any goods seized during the operation must then be returned. In addition, in
the case of an illegal search, an aggrieved party may have an action for invasion of
privacy.
(b) The constitutionality of laws authorising searches and seizures

There are a number of laws that authorise searches and seizures, the most important of
which is the Criminal Procedure Act 51 of 1977.64 These laws limit the right to privacy
and must be justified under the limitation clause.65 To comply with s 36, the authorising
law must properly define the scope of the power to search and seize. Secondly, prior
authorisation by an independent authority is usually required. Thirdly, the Act must
require the independent authority to be persuaded by evidence on oath that there are
reasonable grounds for conducting the search.66 We will consider these three
requirements in turn.
As far as the first requirement is concerned, empowering statutes must clearly
identify the purpose of the search and seizure and provide clear guidelines within which
the responsible agents must carry out their functions. Wide discretionary powers must
be avoided, whether a search warrant is required or not.67 In Mistry, s 28(1) of the
Medicines and Related Substances Control Act 101 of 1965 was struck down by the
Constitutional Court because it gave inspectors carte blanche to enter any place,
including private dwellings, where they reasonably suspect medicines to be, and there to
inspect documents that may be of the most intimate kind. There were no safeguards in
the Act to minimise the extent of the intrusion on privacy. The court held that the extent
of the invasion of privacy sanctioned by the statute was disproportionate to the purpose
of the Act, and the section was therefore held to be overbroad in its reach and invalid.
While guidelines are undoubtedly important, the legislature may afford the law
enforcement agents some discretionary power as long as the purpose of the statute is
clearly identified. For example, in Mistry the court stated:
63
Janse van Rensburg v Minister of Trade and Industry 2001 (1) SA 29 (CC).
64
Chapter 2 makes provision for the seizure of widely defined categories of articles which relate to the
commission of offences. Usually, a search warrant must be obtained. However, in terms of s 22, a police official
may search and seize without warrant if the person concerned consents to the search, or if the police official has
reasonable grounds to believe that a warrant would have been issued and that the delay in obtaining the warrant
would defeat the object of the search. Private persons are also permitted to search and seize, but the requirements
are far stricter. See Minister of Safety and Security v Van der Merwe 2011 (5) SA 61 (CC) [24]–[30].
65
See Hyundai (note 38 above) [20]. The test for whether legislation authorises a ‘search’ is one of substance
and not semantics: Magajane v Chairperson, North-West Gambling Board 2006 (5) SA 250 (CC) [36]. The court
held that regulatory inspections (for example, in the inspection of gambling premises) undoubtedly constitute an
intrusion on private space and therefore can be considered to infringe privacy interests [59]. Such regulatory
inspections will invariably limit the right to privacy entrenched in s 14 of the Constitution and require
justification in terms of s 36 [60].
66
South African Association of Personal Injury Lawyers v Heath 2000 (10) BCLR 1131 (T), 1165A. The
purpose of the search does not have to be related to the investigation of crime.
67
Mistry (note 28 above) [29]. Sachs J added, in a footnote, that in the absence of clear guidelines one
inspector may give an aggressive, sweeping interpretation, another a timid one. Since there is no common
standard, the rule of law will be jeopardised. See also Magajane (note 65 above) [71] (provision authorising
search must be sufficiently circumscribed so as to limit the discretion of the inspector, particularly with regard to
time, place and scope of the search).
305
the section is so wide and unrestricted in its reach as to authorise any inspector to enter any
person’s home simply on the basis that aspirins or cough mixture are or are reasonably
suspected of being there.68
This type of over-breadth analysis is not particularly helpful. The power to search and
seize must be demarcated with reference to the purpose of the statute. In Mistry, counsel
for the respondent argued for an interpretation of the statute which would have limited
the application of the search and seizure provision to the monitoring of health
professionals.69 The problem was, as the court pointed out, that the legislative mandate
of the inspectors was wider than this and that the court could not re-write the inspectors’
mandate. Also, and more problematic, the statute contained no safeguards. The court
found that in respect of some searches authorised by the statute, such as a search of a
person’s home, prior authorisation would be required. As there was no such safeguard in
the particular provisions in question, they were materially defective. The court could not
read such a requirement into the statute as it is the task of the legislature to build the
necessary safeguards into a statute.
Apart from circumscribing discretionary powers in terms of the purpose of a
statute, the Bill of Rights may also be applied indirectly to support a particular
(usually narrower) construction of the enabling statute.70 For example, the High
Court decision in Mistry v Interim National Medical and Dental Council of South
Africa71 imported a requirement of objective reasonableness into the search and
seizure provisions of the Act. This interpretation meant that items could only be
seized if, on reasonable grounds, they appeared to afford evidence of a contravention
of any provision of the Act.
In Van der Merwe,72 the search and seizure provisions of s 21 of the Criminal
Procedure Act were interpreted to require a warrant to specify the offence in respect
of which the search is undertaken. The warrant must, in a reasonably intelligible way
(a) state the statutory provision in terms of which it is issued; (b) identify the
searcher; (c) clearly mention the authority it confers on the searcher; (d) identify the
person, container or premises to be searched for and seized; (e) describes the articles
to be searched for and seized, with sufficient particularity; and (f) specify the offence
which triggered the criminal investigation and name the suspected offender.73
The second requirement (that of prior authorisation) was addressed by the High
Court in Park-Ross v Director, Offıce for Serious Economic Offences.74 Here, the
offices of a company were raided and documents were seized and copied in terms of
s 6 of the Investigation of Serious Economic Offences Act 117 of 1991.75 The
seizure took place after the Office for Serious Economic Offences decided to hold an
inquiry in terms of s 5 of the Act.
68
Ibid [28].
69
Ibid [31].
70
See, on ‘reading down’ of statutory provisions and indirect application of the Bill of Rights, Chapter 3
above.
71
Mistry v Interim National Medical and Dental Council of South Africa 1997 (7) BCLR 933 (D).
72
Note 64 above [52] and [55].
73
See also Thint (Pty) Ltd v National Director of Public Prosecutions 2009 (1) SA 1 (CC) [159].
74
Park-Ross v Director: Offıce for Serious Economic Offences 1995 (2) SA 148 (C).
75
The Act has been repealed but its provisions have been largely incorporated into the National Prosecuting
Authority Act 32 of 1998.
306
Privacy 14.4
Tebbutt J held that s 6 of the Act constituted a violation of the right to privacy
embodied in s 13 of the interim Constitution.76 The next question was whether it was
a permissible limitation of the right to privacy in terms of s 33(1) of the interim
Constitution (the interim Constitution’s limitation clause). Tebbutt J held that the
value protected by the law of search and seizure, as in the United States and Canada,
is privacy rather than property.77 He then adopted the following criteria, with
reference to the Canadian case of Hunter v Southam Inc,78 for reasonable searches
and seizures in connection with the investigation of a criminal offence:
1. The power to authorise a search and seizure should be given to an impartial and
independent judicial authority who would be bound to act judicially in discharging
that function.
2. The evidence must satisfy the judicial authority that the person seeking the
authority has reasonable grounds for suspecting that an offence has been
committed.
3. The evidence must satisfy the judicial authority that the person seeking the
authority has reasonable grounds, at common law, for believing that something
that will afford evidence of an offence may be recovered.
4. There must be evidence on oath before the judicial authority.
Applying these criteria, Tebbutt J concluded that s 6 of the Serious Economic Offences
Act was not a justifiable limitation of the privacy right. The section failed to meet the
minimum requirements because it allowed the Director of Serious Offences to authorise
a search and seizure. The Director did not have the neutrality and detachment necessary
to assess whether the interests of the individual must give way to those of the state.
Moreover, in terms of s 5(1)(b) of the Act, the Minister could compel the Director to
hold an enquiry, which leads to the search and seizure. In such a case, the discretion of
the Director was effectively removed. Accordingly, s 6 did not meet the requirements
mentioned above.79
The decision in Park-Ross does not imply that statutory provisions should always
require a search warrant. In some circumstances, such as those described by s 22 of
the Criminal Procedure Act, search and seizure may be conducted without a warrant.
But in the context of criminal investigations, a search and seizure without a warrant
should be the exception and not the rule.
In Magajane, dealing with legislative powers of regulatory inspection, the court
distinguished between inspections aimed at mere compliance on the one hand, and
those aimed at enforcement on the other. Regulatory inspections that have an
enforcement rationale constitute more serious infringements of the right to privacy
and will therefore require accordingly greater safeguards akin to a warrant.
Provisions, it held, ‘that more closely resemble traditional criminal law require closer
scrutiny’.80 The factors to be assessed in this process of scrutiny are the following:
. . . the nature of the conduct addressed by the provision, the purpose for which it was
designed and the civil or criminal nature of the sanctions for violating the provision. The
76
Park-Ross (note 74 above) 166H.
77
Ibid 217H. See Katz v United States 389 US 347 (1967).
78
Hunter v Southam Inc (1985) 11 DLR (4th) 641 (SCC).
79
Park-Ross (note 74 above) 170–173.
80
Magajane (note 65 above) [69]–[70].
307
more the purpose of the provision and the intent of the inspectors is to obtain evidence for
criminal prosecution, the greater the limitation of the right to privacy. The distinction often
will be between compliance and enforcement. Inspections aimed at compliance—
characterised as ‘the random, over-arching supervision of an industry at large, with
particular actors within that industry “targeted” without particular regard to any pre-existing
objective save the integrity of the scheme of regulation in general’—are less like criminal
searches and impose lesser limitations on the right to privacy. Searches aimed at
enforcement—characterised as ‘a focused investigation of a particular actor under that
regime, often with a view to quasi-penal consequences’—are more like criminal searches,
especially if the sanctions under the regulatory provision are essentially criminal or if the
target can be charged under a criminal statute.81
The third requirement—reasonable grounds for the search—was addressed by the
Constitutional Court in the Hyundai decision. The court held that, for purposes of a
preparatory investigation, a search and seizure would not be constitutionally justifiable
in the absence of a reasonable suspicion that an offence had been committed.82 Section
29(5) of the Public Prosecuting Authority Act 32 of 1998, the successor of the provision
in the Serious Economic Offences Act which was struck down in Park-Ross, was then
read down to conform with this constitutional requirement.83 In our view, the principle
laid down in Hyundai is capable of wider application. Whenever a search and seizure is
authorised, there must be reasonable grounds for the invasion of privacy, but the
grounds are not necessarily restricted to the suspicion that an offence has been
committed.84
(c) Admission of evidence obtained by search and seizure

(i) Admissibility of improperly obtained evidence
Searches and seizures are usually conducted to obtain evidence for use in legal
proceedings. The question then arises whether evidence obtained in circumstances that
infringe the right against searches and seizures may be admitted in those proceedings. At
common law the approach of the courts to the issue of illegally obtained evidence, both
in criminal and civil proceedings, was that relevant evidence was admissible and that the
court should not concern itself with how it was obtained.85 In criminal proceedings, the
common law was substantially altered with the introduction of s 35(5) of the
Constitution.86 There are no comparable constitutional or statutory provisions dealing
with the admissibility of unconstitutionally obtained evidence in civil proceedings. It
follows that the common-law rule remains applicable, unless a court is convinced that
the common law should be developed (in terms of s 39(2) of the Constitution), in order
to recognise a discretion to exclude otherwise admissible evidence in civil proceedings
on the basis that it was obtained in violation of the Constitution.
81
Ibid [70]. The quoted passages are from SC Hutchison et al Search and Seizure Law in Canada vol 1 (2005).
82
83
The High Court in Hyundai Motor Distributors v Smit NO 2000 (2) SA 934 (T) did not consider the
possibility of reading the section down.
84
85
Fedics Group (Pty) Ltd v Matus 1998 (2) SA 617 (C) [68]. See also DT Zeffertt et al The South African Law
of Evidence (2003) 630–632 and the authorities cited there.
86
‘Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the
admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of
justice’.
308
Privacy 14.4
We suggest a three-part analysis to determine the admissibility of evidence obtained

by way of searches and seizures. The first part applies to both criminal and civil
proceedings and the last two only to criminal proceedings.
First, it must be determined whether the evidence was lawfully obtained. Lawfully
obtained evidence will always be admissible, provided of course that the evidence is
relevant and there is no compelling consideration of public policy which requires that it
should be excluded. Any argument for the exclusion of evidence therefore usually starts
by showing that the evidence was unlawfully obtained. Generally speaking, this triggers
the discretion of the court to exclude the evidence.
The implication of the right to privacy is that the state or private individuals cannot
search private property, the person or the home of others or seize their possessions
unless authorised to do so by statute or by the common law. In so far as a search or a
seizure is authorised by law, it will be lawful, but the constitutionality of the enabling
statute or common law may of course be attacked for violating the right to privacy. The
issue of the constitutionality of enabling laws was considered in 14.4(b) above.
In so far as the search or seizure is not authorised by law, it will be unlawful. The
court has a general discretion to exclude unlawfully obtained evidence. But not all
unlawful searches and seizures will constitute a violation of the right to privacy. And, as
the courts have a general discretion, not all unlawfully obtained evidence will be
excluded. However, for purposes of the admission of evidence in criminal proceedings,
s 35(5) makes the question of whether the evidence was obtained in violation of the right
to privacy all-important.87 In criminal proceedings, s 35(5) dictates that the court must
exclude evidence obtained in a manner which violates a right in the Bill of Rights if the
admission of the evidence would render the trial unfair or otherwise be detrimental to
the administration of justice. In respect of such evidence the court does not have a
discretion. It must be excluded. In respect of criminal proceedings, two further questions
therefore arise. They are whether the evidence was obtained in violation of the right to
privacy and whether the admission of the evidence will render the trial unfair or
otherwise be detrimental to the administration of justice.
The second part of the analysis concerns the extent of the right to privacy. An
unlawful search and seizure will only impair the right to privacy if a reasonable
expectation of privacy existed in respect of the searched area and the seized item. As
was outlined above, a subjective expectation of privacy that is objectively reasonable
must exist. In respect of some areas, such as the person and the home, a search will
always violate the right to privacy. In respect of property and possessions more
generally, a reasonable expectation of privacy must exist. It must be kept in mind that in
so far as a search is not authorised by law of general application, s 36 of the Constitution
cannot be used to justify the infringement of the right to privacy.88 This makes it all the
87
As will be pointed out below, this does not mean that the issue of whether the evidence was obtained in
violation of the right to privacy is of no consequence to civil proceedings. In civil proceedings, a violation of the
right to privacy often means that evidence was ‘unlawfully’ obtained. This in turn triggers the general discretion
to exclude the evidence. In both civil and other proceedings, the courts will have to develop criteria to determine
when such evidence should be excluded. Since the exclusion of evidence is a remedy which may, or may not,
constitute ‘appropriate relief’ for the violation of the right to privacy, a court will have to keep the overriding
considerations for awarding constitutional remedies in mind: constitutional remedies seek to vindicate the
Constitution and deter its further infringement.
88
See, on the law of general application requirement, para 7.2(a) in Chapter 7 above.
309
more important for law-enforcement agents to observe the requirements laid down in
enabling statutes.
The third prong of analysis asks whether admission of evidence unlawfully obtained
and in violation of the right to privacy, will render the trial unfair or otherwise be
detrimental to the administration of justice. This is considered in greater detail in
para 32.13 in Chapter 32 below.
(ii) Civil proceedings

In civil proceedings, the first question, as it is in criminal proceedings, is whether the
evidence was lawfully obtained. If not, the next question is whether the evidence should
be admitted. Since the Constitution does not contain any specific provisions on the
admission of unconstitutionally obtained evidence in civil proceedings, the courts will
have to develop guidelines in this regard.89
In Fedics Group (Pty) Ltd v Matus,90 Brand J indirectly applied the right to privacy to
the law of civil procedure.91 He held that a discretion to exclude unconstitutionally
obtained evidence in civil proceedings must be recognised because, to deny it would be
a retrogressive step in the development of our law, which would be in conflict with
considerations of undoubted validity.92 Those considerations were that a court should
ensure that the fundamental human rights of citizens are upheld, if necessary, by
excluding unconstitutionally obtained evidence.
The case concerned an unlawful search for information required by the applicants to
show that the respondents were unlawfully competing with them. Brand J assumed that
the search violated the respondents’ rights to privacy and human dignity.93 However, the
court stated that there was a fundamental difference between criminal and civil
proceedings:
in a criminal case the accused person enjoys the privilege against self-incrimination. He has
the fundamental right to remain silent. The prosecution must prove its case without any
assistance from the accused. The accused is under no duty to disclose his defence nor is he
obliged to disclose any documents which might strengthen the state’s case. In civil
proceedings the position is quite the opposite. A litigant is not only obliged to disclose his
case, he is also obliged to discover all documents which may damage his own case or may
directly or indirectly enable his adversary to advance his case.94
Having had regard to the differences between civil and criminal proceedings, the court
89
The Constitutional Court declined the opportunity to express a view on the admissibility of such evidence in
civil proceedings in Veerasamy v Engen Refinery 2000 (3) SA 337 (CC). The applicant objected to the use of a
tape recording of a telephone conversation in proceedings before the Commission for Conciliation, Mediation
and Arbitration. Since there was sufficient other evidence to find that the dismissal was not unfair, the court
refused direct access and avoided deciding the constitutional point. The issue was also left open in Janit v Motor
Industry Fund Administrators (Pty) Ltd 1995 (4) SA 293 (A), 307 B.
90
Note 85 above.
91
Ibid [85].
92
Ibid [76].
93
Ibid [97].
94
Ibid [90]. The difference between civil and criminal proceedings also explains the different outcomes of the
challenges to s 417 of the Companies Act 61 of 1973 in the Constitutional Court’s decisions in Ferreira v Levin
NO 1996 (1) SA 984 (CC) and Bernstein v Bester NO (note 5 above). While the court ruled in Ferreira that
evidence obtained under compulsion in the liquidation enquiry may not be used in subsequent criminal
proceedings against the examinee, it ruled in Bernstein that such evidence could be used in subsequent civil
proceedings against the examinee.
310
Privacy 14.4–14.5
held that, in civil proceedings, the following factors should be considered when deciding
whether to admit evidence obtained through violation of constitutional rights:
On the one hand, the litigant who seeks to introduce evidence which was obtained through a
deliberate violation of constitutional rights will have to explain why he could not achieve
justice by following the ordinary procedure—including the Anton Piller procedure—
available to him. On the other hand, the Court will, in the exercise of its discretion, have
regard to the type of evidence which was in fact obtained. Is it the type of evidence which
could never be lawfully obtained and/or introduced without the opponent’s co-operation,
such as privileged communications, or the recording of a taped telephone conversation—or
is it the type of evidence involved in this case, namely documents and information which the
litigant would or should eventually have obtained through lawful means? In the latter case,
the Court should, I think, be more inclined to exercise its discretion in favour of the litigant
who seeks to introduce the evidence than it would be in the case of the former. It goes
without saying, that the Court will, in any event, have regard to all the other circumstances
of the particular case.95
A number of other factors have been considered relevant by the courts when considering
the admissibility of unconstitutionally obtained evidence in civil proceedings. These
include:
1. whether it was reasonable for a litigant to apprehend that he or she would not have
obtained justice by involving ordinary procedures available to him or her;96
2. whether the litigant was advised by his or her legal representatives that the
manner in which the evidence was obtained was lawful;97
3. whether the documents found were of a personal nature; and98
4. the interest of society that the truth about unlawful conduct should be
exposed.99
14.5 PRIVACY OF COMMUNICATIONS

The differences between civil and criminal proceedings also inform the approach of the
courts to the admission of evidence obtained in violation of the right to privacy of
communications.
In respect of civil proceedings, the approach of the High Court in Protea Technology
v Wainer100 closely corresponds to that of Brand J in Fedics v Matus. In Protea
Technology, the applicants sought an interdict restraining the respondents from
competing unlawfully with them. They wished to use, in support of the application, the
transcripts of telephone calls recorded by means of a surveillance device. The calls had
been made and received by the respondent while working for the applicant.
The respondents argued that the transcripts were inadmissible on two grounds. First,
it was contended that the interception contravened the Interception and Monitoring
95
Fedics (note 85 above) [92]. The Anton Piller procedure itself was challenged on constitutional grounds in
Ex parte Dabelstein v Hildebrandt [1996] 2 All SA 17 (C). At 42, the High Court held that the power to grant
Anton Piller orders in appropriate cases is necessary in our society. But the court stressed that orders granted
pursuant to such a power must contain adequate safeguards and that the requirement of proportionality must be
satisfied.
96
Fedics (note 85 above) [104].
97
Ibid [105].
98
Ibid [103].
99
Protea Technology Ltd v Wainer 1997 (9) BCLR 1225 (W), 1241I.
100
Ibid.
311
Prohibition Act 127 of 1992, that the evidence was therefore illegally obtained and that
it should be excluded on this basis. Section 2 of the Act provides that no person shall, in
the absence of a judge directing otherwise, intentionally and without the knowledge and
permission of the dispatcher intercept a communication by telephone. The section also
prohibits the intentional monitoring of a conversation by means of a monitoring device
so as to gather confidential information concerning any person, body or organisation.
The judge may only issue a direction that conversations be monitored if he or she is
convinced that the offence that has been or will probably be committed is a serious
offence that cannot be properly investigated in any other manner.101
After discussing the meaning of the statutory provisions, which largely give effect to
the s 14(d) right to privacy of communications, the court concluded that the statute does
not expressly or by necessary implication render the production of recordings made in
contravention of its terms inadmissible in evidence before a court trying a civil
dispute.102 The evidence could therefore not be excluded on this basis.
Secondly, it was argued that the evidence was obtained in violation of the
respondent’s constitutional right to privacy and that it should be excluded on this basis.
The court held that, even in the employment context, the employee may receive and
make telephone calls that have nothing to do with his or her employer’s business. In
respect of such calls the employee has a legitimate expectation of privacy. But, in
respect of conversations involving the employer’s affairs, the employer is entitled to
demand and obtain as full an account as the employee is capable of furnishing.103 These
conversations are not private and not protected by the Constitution. As soon as the
employee abandons the private sphere for that of the affairs of his employer he loses the
benefit of privacy. The employer then has the right to know both the substance and the
manner in which the employee conducts himself and it matters not how the employer
informs himself.104 This meant that the respondent could not rely on the constitutional
right to privacy.
The court went on to state that, even if it was wrong in respect of the violation of the
right to privacy, it had a discretion to admit unconstitutionally obtained evidence in civil
proceedings and that it would have exercised this discretion in favour of admitting the
evidence. In this regard, the court remarked that the common-law rule, starting as it does
with the assumption that all evidence is admissible subject to the discretion of the court
to exclude it, is at odds with the Constitution. The rule needs to be reformulated in order
to promote the spirit, purport and objects of the Bill of Rights. The better formulation
would be that evidence obtained in a manner which breaches fundamental constitutional
rights can only be admitted if the admission of the evidence is justifiable in terms of s 36
of the Constitution.105 Prima facie, the victim of the violation has the right to have
unconstitutionally obtained evidence excluded in both civil and criminal trials. In
deciding whether to admit the evidence, the criteria in the limitation clause require the
violation of the right to privacy to be balanced against the concern of society that the
truth about unlawful conduct be exposed. Further, the safeguards which ensure the truth
and reliability of the information have to be taken into account as well as the question
101
Section 3 of the Monitoring Act.
102
Protea Technology (note 99 above) 1237D.
103
Ibid 1240C.
104
Ibid 1241E.
105
Ibid 1242C.
312
Privacy 14.5
whether the invasion of the right could be minimised or avoided by other means. On the
facts, the applicant had no other means: an application for an Anton Piller order would
not have succeeded, neither would a judge have directed the interception of the calls
under the Monitoring Act. Moreover, the applicant acted in the belief that the steps were
necessary for its self-preservation. The expectation of privacy of the respondent, on the
other hand, was marginal. Finally, because it was not a criminal case, the respondent had
no right to be presumed innocent. It was a civil dispute where each party accuses the
other of dishonesty and improper motives. In such a case, ‘it would be quite wrong to
allow one party to damage and malign the other while depriving the latter of relevant
material at its disposal to disprove such allegations, all for the sake of upholding a right
which, in all the circumstances, should not need to be invoked at all unless there is
something to hide’.106
As with search and seizure, the approach of the courts to the admissibility of evidence
obtained in violation of the privacy of communications is much stricter in criminal
cases. For example, in S v Naidoo107 false and misleading information was furnished to
a judge in order to obtain a direction in terms of the Monitoring Act to tap a telephone.
This meant that the direction issued by the judge was not lawful. The monitoring could
therefore not constitute a limitation of the right to privacy in terms of the Monitoring
Act, but was an unjustifiable violation of the accused’s right to privacy. Since admission
of the evidence would render the trial unfair (it would violate the right against
self-incrimination) the evidence was excluded under s 35(5). Also, in S v Nkabinde108
the court held that the accused’s right to privacy was violated in that the police
monitored conversations between the accused and his legal representatives. Although
authorisation under the Monitoring Act was obtained, the interception of this type of
communication is not provided for by the Monitoring Act. It also appeared that the
monitoring continued beyond the date when the authorisation lapsed. Ultimately these
irregularities contributed to the acquittal of the accused.
‘Participant electronic surveillance’ (ie, when a communication is recorded by a party
to the conversation) is not prohibited by the Monitoring Act and it also does not violate
the right to privacy. The courts have admitted evidence obtained in this manner in both
civil109 and criminal cases.110 In our view these cases were correctly decided since a
person can hardly be said to have a subjective expectation of privacy vis-à-vis a party to
a conversation. The Monitoring Act is aimed at preventing third party monitoring in the
sense of eavesdropping.
106
Ibid 1244A.
107
S v Naidoo 1998 (1) BCLR 46 (D).
108
S v Nkabinde 1998 (8) BCLR 996 (N).
109
Tap Wine Trading v Cape Classic Wines (Western Cape) 1999 (4) SA 194 (C). The court held that
improperly obtained evidence may in any event be admitted under s 35(5). This is not correct. Section 35(5) only
applies to criminal proceedings.
110
S v Kidson 1999 (1) SACR 338 (W); S v Dube 2000 (2) SA 583 (N), 610C.
313
Chapter Fifteen*
Religion, Belief and Opinion

15.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 314
15.2 The meaning of ‘religion’, ‘conscience’, ‘thought’, ‘belief’ and
‘opinion’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 316
15.3 Free exercise of religion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 316
(a) Scope of the right . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 316
(b) Limitation of the right . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 319
15.4 Equal treatment of religions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 325
15.5 Religious observances in state institutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 330
15.6 Legislation recognising religious and traditional marriages and
systems of personal and family law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 333
15.7 Common-law recognition of religious marriages. . . . . . . . . . . . . . . . . . . . . . 335
Freedom of religion, belief and opinion

15. (1) Everyone has the right to freedom of conscience, religion,
thought, belief and opinion.
(2) Religious observances may be conducted at state or state-aided
institutions provided that—
(a) those observances follow rules made by the appropriate public
authorities;
(b) they are conducted on an equitable basis;
(c) attendance at them is free and voluntary.
(3) (a) This section does not prevent legislation recognising—
(i) marriages concluded under any tradition, or a system of religious,
personal or family law; or
(ii) systems of personal and family law under any tradition, or adhered
to by persons professing a particular religion.
(b) Recognition in terms of paragraph (a) must be consistent with
this section and the other provisions of the Constitution.
15.1 INTRODUCTION
For centuries, the relationship between church and state and between religion and law
dominated politics in large parts of the world. The history of this relationship is
complex, but, for present purposes, it suffices to say that in the western world the
* This chapter was revised for the sixth edition by Michael Eastman, Advocate, Johannesburg Bar.
314
Religion, Belief and Opinion 15.1
alliance between church and state proved to be an unholy one, and it was in reaction to
religious persecution by the state that the idea of human rights first developed.1 The
earliest advocates of religious freedom therefore combined calls for religious tolerance
with calls for a secular state which did not favour one religion over others. Today, the
interpretation of the right still reflects its historical origins in that it turns first on the
extent to which the state may recognise or ‘establish’ a religion and, second, on the
freedom to exercise a religious belief.2
When the modern state started to take over functions that had hitherto been performed
by the church (such as education and welfare) and particularly when courts started to
flush religion out of all government institutions, the non-establishment aspect of the
religion right became contentious. The denial of a role for religion in the public sphere,
many argue, leads to the privatisation and increasing marginalisation of religion in
society. Particularly in North America, the argument is made that the right to ‘freedom
of religion’ has become a right to ‘freedom from religion’.3
The drafters of the South African Constitution were well aware of the problems that
could be caused by insisting on a strict separation between church and state. At the same
time, the cosy relationship that existed between the apartheid regime and the three
Afrikaans churches in South Africa must also have been on the drafters’ minds.4 The
compromise that was entrenched in the Bill of Rights is not unique.5 Section 15 of the
Constitution does not prevent the state from recognising or supporting religion, but does
require it to treat religions equally. This right, together with s 31, also firmly entrenches
the right of individuals and communities to free exercise of religion.6 When read
together with the equality clause (s 9(3)), s 15 prohibits the state from discriminating
against any particular religious group. In South Africa therefore, the freedom of religion
right has a free exercise component and an equal treatment component.
1
J Rawls Political Liberalism (1993) vi: ‘Thus, the historical origin of political liberalism (and of liberalism
more generally) is the Reformation and its aftermath, with the long controversies over religious toleration in the
sixteenth and seventeenth centuries. Something like the modern understanding of liberty of conscience and
freedom of thought began then.’
2
The link between these two aspects of religious freedom has been succinctly described by the United States
Supreme Court: ‘When the power, prestige and financial support of government is placed behind a particular
religious belief, the indirect coercive pressure upon religious minorities to conform to the officially approved
religion is plain’ Engel v Vitale 370 US 421 (1962) 431.
3
J Buckingham Realising Religious Freedom: The Application and Limitations of the Canadian
Understanding of Religious Freedom to South Africa LLD Dissertation, University of Stellenbosch (1998).
4
See, on this relationship, LM du Plessis ‘Religion, Law and State in South Africa’ (1997) 4 European
Journal for Church & State Research 221; J Kilian Religious Freedom in South Africa (1993); G Carpenter
‘Beyond Belief—Religious Freedom under the South African and American Constitutions’ (1995) 3 THRHR 684;
M Prozesky ‘Religious Justice at Last? Believers and the New Constitution in South Africa’ (1995) 92 Journal of
Theology of Southern Africa 11. See, generally, P Farlam ‘Freedom of Religion, Belief and Opinion’ in Woolman,
Bishop & Brickhill (eds) Constitutional Law of South Africa 41.1–41.2 (a particular brand of Christianity was the
unofficial state religion under apartheid; the Christian bias consequently imparted to the legal system led to the
marginalisation of and contributed to prejudice against other faiths).
5
The drafting of the freedom of religion right was made easier because South African religious groupings
agreed on a clause at the National Inter-Faith Conference in 1990. At this conference a Declaration on Religious
Rights and Responsibilities was adopted. World Conference on Religion and Peace—South African Chapter
Believers in the Future. Proceedings of the National Inter-Faith Conference on Religion-State Relations (1991).
The Declaration explains what the freedom of religion right means, in concrete terms, for religious believers. It
will therefore be of great assistance in the interpretation of s 15. See Du Plessis (note 4 above) 227.
6
On the relationship between s 15 and s 31 (protecting the associative aspects of religious practice), see MEC
for Education, KwaZulu-Natal v Pillay 2008 (1) SA 474 (CC) [146]–[148].
315
In principle, both components apply to state and private conduct. There is nothing in
the nature of the right to freedom of religion that prevents it from being applied
horizontally, and the prohibition against unfair discrimination on grounds of religion is
explicitly made applicable to the conduct of private persons.7
15.2 THE MEANING OF ‘RELIGION’, ‘CONSCIENCE’, ‘THOUGHT’, ‘BELIEF’ AND

‘OPINION’
Section 15(1) makes debate about the meaning of the term ‘religion’ unnecessary
because it also protects the rights to freedom of conscience, thought, belief and opinion
along with the right to freedom of religion. Agnosticism and atheism, for example, will
be included in both the terms ‘belief’ and ‘conscience’. The latter term is usually
interpreted to include systems of belief (such as rationalism or free thought) not centred
on a deity and which, for that reason, are sometimes not classified as religions.8 While
the term ‘conscience’ envisages a moral judgment, ‘thought’ simply denotes the
application of human reason.9 Religious freedom therefore also extends to the freedom
to reject religious beliefs.10 Literally interpreted, s 15(1) therefore protects an extremely
wide range of world-views. The same, however, does not hold for s 15(2) and (3) and
s 31. The application of s 15(2) is restricted to ‘religious observances’, while s 15(3)
refers to ‘religious’ and ‘traditional’ marriages and law. The meaning of these
subsections is considered below. Section 31, which deals with communal aspects of
religious belief, is dealt with in Chapter 28 below. We make this divide for analytic
convenience; it is important, however, not to separate the individual and communal
aspects of religion too far from one another. They are complementary and mutually
supportive spheres.11
15.3 FREE EXERCISE OF RELIGION
(a) Scope of the right

In S v Lawrence,12 Chaskalson P (Langa DP, Ackermann J and Kriegler J concurring)
borrowed the following definition of the ‘essence of the concept of freedom of religion’
from the Canadian courts:
the right to entertain such religious beliefs as a person chooses, the right to declare religious
beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious
belief by worship and practice or by teaching and dissemination.13
Freedom of religion therefore includes the right (a) to have a belief, (b) to express such
belief publicly and (c) to manifest such belief by worship and practice, teaching and
7
Section 9(4). See Taylor v Kurtstag NO 2005 (1) SA 362 (W) [45] (religion rights directly horizontally
applicable).
8
P Hogg Constitutional Law of Canada 3 ed (1992) 947.
9
M Shaw ‘Freedom of Thought, Conscience and Religion’ in R Macdonald et al (eds) The European System
for the Protection of Human Rights (1993) 447.
10
D Meyerson Rights Limited (1997) 1.
11
See Pillay (note 6 above) [60]: ‘the borders between culture and religion are malleable and . . . religious
belief informs cultural practice and cultural practice attains religious significance’.
12
S v Lawrence 1997 (4) SA 1176 (CC).
13
Ibid [92], quoting Dickson CJC in R v Big M Drug Mart [1985] 1 SCR 295 336.
316
dissemination.14 It also prohibits coercion or constraint that might force people to act or
refrain from acting in a manner contrary to their religious beliefs.15
What the Lawrence definition does not refer to is the right to establish, maintain
and manage religious institutions. Read with the freedom of association (s 18) and
the rights of cultural, religious and linguistic communities (s 31), the freedom of
religion also guarantees a degree of autonomy for religious groups to run their affairs
without interference:
Just as it is difficult to postulate a firm divide between religious thought and action based on
religious belief, so it is not easy to separate the individual religious conscience from the
collective setting in which it is frequently expressed. Religious practice often involves
interaction with fellow believers. It usually has both an individual and collective dimension
and is often articulated through the activities that are traditional and structured, and
frequently ritualistic and ceremonial.16
The Constitutional Court then went further. Not only is the institutional setting within
which the freedom is exercised all-important, but the state is required by the Bill of
Rights to acknowledge the value of religious diversity and pluralism. The Bill of Rights
affirms ‘the right of people to be who they are without being forced to subordinate
themselves to the cultural and religious norms of others, and highlights the importance
of individuals and communities being able to enjoy what has been called the “right to be
different”.17
However, the practice of religion may lead to conflict with other rights. Section 31
therefore provides that the right of a religious community to practise its religion may
not be exercised in a manner inconsistent with any provision of the Bill of Rights.18
As the Constitutional Court remarked in Christian Education South Africa, members
14
Prince v President, Cape Law Society 2002 (2) SA 794 (CC) [38]; Christian Education South Africa v
Minister of Education 2000 (4) SA 757 (CC) [19].
15
S v Lawrence (note 12 above) [92]; Christian Education (ibid) [19]; Prince (ibid). The classic example of
such coercion is forcing people to serve in the military against their religious beliefs. Most countries with military
conscription have therefore adopted detailed rules concerning conscientious objectors, as did South Africa before
the system of whites-only military conscription was scrapped. Prior to its amendment, s 72B of the Defence Act
44 of 1957 exempted from military service ‘a religious objector with whose religious convictions it is in conflict
to render any military service or to undergo any military training or to perform any task in or in connection with
any armed force’. Religious conviction was assessed by a Board for Religious Objectors. The practice of the
Board was controversial. It did not, for example, regard Buddhism as a religion. See Hartman v Chairman, Board
for Religious Objection 1987 (1) SA 923 (O).
16
Christian Education (note 14 above) [19]. At [23]–[24] the court held that the protection of the
constitutional values of diversity and pluralism is achieved through the double mechanism of positively enabling
individuals to join with other individuals of their community, and prohibiting the state from denying them the
rights collectively to profess and practice their own religion (as well as enjoy their culture and use their
language).
17
Ibid [24]. See also [36]: ‘For many believers, their relationship with God or creation is central to all their
activities. It concerns their capacity to relate in an intensely meaningful fashion to their sense of themselves, their
community and their universe. For millions in all walks of life, religion provides support and nurture and a
framework for individual and social stability and growth. Religious belief has the capacity to awake concepts of
self-worth and human dignity which form the cornerstone of human rights. It affects the believer’s view of
society and founds the distinction between right and wrong’.
18
In Nkosi v Bührmann 2002 (1) SA 372 (SCA) Howie JA held that although s 31 refers only to communal
religious practice, the same must follow for individual religious practice as the law would be unacceptably
contradictory if the individual is allowed to do what the group is not. See also Hay v B 2003 (3) SA 492 (W)
(granting an application to administer a life-saving blood transfusion to an infant, against the wishes and contrary
to the religious beliefs of the child’s parents); Kotze v Kotze 2003 (3) SA 628 (T) (declining to uphold a
settlement agreement in a divorce action that provided that a child would be educated ‘in the Apostolic Church
and . . . fully participate in all the religious activities of the Apostolic Church’).
317
of religious communities may seek to use the freedom of religion as a shield to fend
off attacks on constitutionally offensive group practices. In particular, the
relationships within the religious community may be oppressive.19 For example,
when a religious institution refuses to appoint women as priests, or requires its
clergy to be unmarried and heterosexual, the prohibition against unfair discrimination
(s 9(4)) may be violated. Since the religious institution’s rules are unlikely to qualify
as ‘law of general application’,20 the question whether its conduct violates s 9 will
turn on whether the discrimination is regarded as ‘unfair’.21 On the other hand, if the
state compels religious institutions to appoint clergy without reference to gender,
marital status or sexual orientation, the institutional aspect of the right to freedom of
religion is violated. Again, it will be necessary to balance the freedom of religion
against the right to equality, but the factors to be taken into account will differ. State
interference with religious autonomy will inevitably take the form of
anti-discrimination laws, and the balancing of rights will then take place under s 36.
We submit that religious institutions must be allowed to hire adherents of their
own religion. Discrimination on grounds of gender and sexual orientation will also
probably be permissible in so far as it is required by the tenets of the religion.
Usually, this will mean that the institution may discriminate when appointing
clergy,22 but not in respect of other personnel such as administrative staff. The
Labour Relations Act 66 of 1995 does not exempt religious institutions from the
prohibition against discriminatory hiring, but it may be argued that adherence to the
religion and its tenets are an ‘inherent requirement’ of the job.
The decision of the Equality Court in Strydom v Nederduitse Gereformeerde
Gemeente, Moreleta Park23 supports this submission. There, a music teacher taught
children at the arts college of the church, working as an independent contractor for
the church. He did not, initially, disclose to the church that he was homosexual.
When that fact emerged, the church terminated his contract, as his sexuality was
contrary to church doctrine. However, the court disagreed. The court found that the
teacher was not in a position of spiritual leadership24 at the church—indeed, he was
at the base of the church hierarchy25—was neither a member nor an employee of the
church26 and did not engage and teach the students spiritually.27 Thus, on the facts,
the church was not permitted to terminate his contract. The teacher was considerably
removed from the church structure. Thus, his homosexuality should not, in the view
of the court, have mattered to the church. However, given the length the court went
19
Ibid [29].
20
That is, unless the courts come to the (unlikely) conclusion that the common-law protection of freedom of
religion serves to limit the right to equality. On the common law relating to freedom of religion, see Simonlanga
v Masinga 1976 (4) SA 373 (W) (expulsion of Jehovah’s Witnesses from school for refusing to close their eyes
during prayer overturned). See also Taylor v Kurtstag NO (note 7 above) [45]. On the law of general application
requirement, see para 7.2(a) in Chapter 7 above.
21
However, even in relation to the equality clause (s 9), a form of balancing is required to determine whether
discrimination is ‘unfair’. See, further, para 9.4(e) in Chapter 9 above.
22
Labour laws are often not applicable to the relationship between clergy and church, as the relationship can
seldom be classified as an ‘employment relationship’. See Church of the Province of SA, Diocese of Cape Town
v CCMA 2002 (3) SA 401 (LC).
23
Strydom v Nederduitse Gereformeerde Gemeente, Moreleta Park 2009 (4) SA 510 (EqC).
24
Ibid [17].
25
Ibid [19].
26
Ibid [20].
27
Ibid [22].
318
to in order to show his separation from the church, it is more than likely that the
court would have adopted the opposite view had the teacher played a more central
role in the spiritual structures of the church. This would nevertheless preserve the
principle contended for above.28
There are a number of other statutes that interfere with the autonomy of religious
institutions. If the institution is incorporated under the Nonprofit Organisations Act
71 of 1997, there are reporting requirements and requirements relating to its internal
structures.29 In respect of fund-raising activities, religious organisations are subject to
the Fund-raising Act 107 of 1978. These limitations are more than likely to pass
scrutiny under the limitation clause. More suspect however, is court intervention in
religious disciplinary hearings.30 Since the right to just administrative action (s 33)
does not apply to a disciplinary tribunal of a religious institution, courts will be
asked to develop the common-law rules to limit religious autonomy in order to
secure procedural fairness.31 Section 15 may require the courts to show greater
respect for religious autonomy in such cases.
This is precisely what happened in Taylor v Kurtstag NO.32 There, a divorced
couple placed a dispute before a Beth Din, a Jewish Ecclesiastical Court. Thereafter,
finding against the applicant, the Beth Din sought to publish a Cherem, which had
the effect of excommunicating the applicant. The applicant approached the High
Court to prevent such publication. The court did not view the application favourably.
It held that adherents to Jewish Orthodoxy have the right to practise their religion in
association with others, in conformity with the dictates, precepts, ethical standards
and moral discipline that the faith exacted. Those who failed to conform therewith
could not be foisted on adherents to the faith within the framework of a religious
and communal association. Religion involved more than a set of beliefs and included
freedom of autonomy in the setting of guidelines for the admission of members to
organisations and the appointment of employees. That implied the further right to
discipline members in order to enforce conformity and encourage conduct in
harmony with religious precepts and teaching. It therefore appeared reasonable and
justifiable to limit the applicant’s rights, because a failure to do so would mean that
the Jewish-faith community would be unable to protect the integrity of Jewish law
and custom by ensuring conformity therewith.33
(b) Limitation of the right

The limitation clause should play an important role in resolving disputes involving the
individual right to the free exercise of religion. This is because the wide scope of the
right increases the likelihood of its infringement. As was discussed above, the terms
‘religion’, ‘conscience’, ‘thought’, ‘belief’ and ‘opinion’ used in s 15 cover a wide range
28
For a debate on this case, see P Lenta ‘The Right of Religious Associations to Discriminate’ 231–257; S de
Freitas ‘Freedom of Association as a Foundational Right: Religious Associations and Strydom v Nederduitse
Gereformeerde Gemeente, Moreleta Park’ 258–272; D Bilchitz ‘Why Courts Should Not Sanction Unfair
Discrimination in the Private Sphere: A Reply’ 296–315 all in (2012) 28 SAJHR.
29
See J Wulfsohn ‘Separation of Church and State in South African Law’ (1964) 88 SALJ 90–101; 226–236.
30
See Theron v Ring van Wellington van die NG Sendingkerk in SA 1976 (2) SA 1 (A).
31
32
Taylor v Kurtstag NO (note 7 above).
33
For a thorough discussion of the case, see S Woolman & D Zeffertt ‘Judging Jews: Court Interrogation of
Rule-Making and Decision-Taking by Jewish Ecclesiastical Bodies’ (2012) 28 SAJHR 196–218.
319
of convictions. Moreover, in our view, it makes little sense to question the degree of
commitment of an applicant to his or her convictions: a religious or other belief must be
taken as a given.34 Moreover, both the purpose and effect of legislation may violate the
freedom of religion. A generally applicable law with a neutral purpose may therefore
infringe s 15 if its effect is to restrict someone’s freedom to exercise his or her religion.35
But, while there may be good reasons for resorting to s 36, the courts have also shown
an inclination to avoid limitation clause analysis where possible, preferring instead to
attempt to restrict the scope of the right. The effect is that not every practice claiming to
be an exercise of the freedom of religion, belief, conscience and thought is treated as
such by the courts. One technique of restriction is to require the claimant to show a
‘substantial burden’ on the exercise of the freedom of religion, or that the prohibited
practice is a ‘central tenet’ of the religion of the affected person. For example, in
Christian Education the applicants did not believe in corporal correction for girls in
secondary schools. This demonstrated to the High Court that there were other methods
of correction consistent with the applicants’ beliefs. The High Court therefore held that
the issue of corporal correction was merely peripheral to the exercise of the applicants’
religion.36 By contrast, the Constitutional Court showed deference to the applicants’
beliefs in this regard by holding that, in the view of the affected parents, the impact of
the prohibition on their religious and parental practices was far from trivial.37
The weight to be given to the consideration of whether a practice is a ‘central tenet’ of
the religion and the nature of the enquiry was reconsidered in Pillay, where the
Constitutional Court was quite untroubled that the wearing of a nose stud was neither a
central nor mandatory tenet of the Hindu faith and was worn voluntarily. This did not
lessen the discrimination on the ground of religion wrought against the wearer. On the
contrary, the court held that:
Freedom is one of the underlying values of our Bill of Rights and courts must interpret all
rights to promote the underlying values of ‘human dignity, equality and freedom’. These
values are not mutually exclusive but enhance and reinforce each other . . . . A necessary
element of freedom and of dignity of any individual is an ‘entitlement to respect for the
unique set of ends that the individual pursues.’ One of those ends is the voluntary religious
and cultural practices in which we participate. That we choose voluntarily rather than
through a feeling of obligation only enhances the significance of a practice to our autonomy,
our identity and our dignity. . . . The protection of voluntary as well as obligatory practices
also conforms to the Constitution’s commitment to affirming diversity. It is a commitment
that is totally in accord with this nation’s decisive break from its history of intolerance and
exclusion. Differentiating between mandatory and voluntary practices does not celebrate or
affirm diversity, it simply permits it. That falls short of our constitutional project which not
only affirms diversity, but promotes and celebrates it. We cannot celebrate diversity by
permitting it only when no other option remains. . . . The protection of voluntary practices
applies equally to culture and religion. Indeed, it seems to me that it may even be more vital
34
Pillay (note 6 above) [52]: ‘a court should ask only whether the claimant professes a sincere belief’. At [56]
the court held that ‘it is always desirable, and may sometimes be vital to hear from the person whose religion or
culture is at issue’.
35
Prince (note 14 above) (failure to provide an exception in respect of the use of cannabis for religious
purposes by Rastafari limited religious rights under the Constitution).
36
Christian Education SA v Minister of Education 1999 (4) SA 1092 (SE) 1103F. Similarly, in Garden Cities
Inc Association v Northpine Islamic Society 1999 (2) SA 268 (C) the court held that the electronic amplification
of the call to prayer did not constitute a ‘fundamental precept’ of Islam.
37
Christian Education (CC) (note 14 above) [37].
320
to protect non-obligatory cultural practices. Cultures, unlike religions, are not necessarily
based on tenets of faith but on a collection of practices, ideas or ways of being. While some
cultures may have obligatory rules which act as conditions for membership of the culture,
many cultures, unlike many religions, will not have an authoritative body or text that
determines the dictates of the culture. Any single member of a culture will seldom observe
all those practices that make up the cultural milieu, but will choose those which she or he
feels are most important to her or his own relationship to and expression of that culture. To
limit cultural protection to cultural obligations would, for many cultures and their members,
make the protection largely meaningless.38
However, that is not to say that the question of a practice being a ‘central tenet’ is
irrelevant. Quite the opposite is so. The Constitutional Court, with some nuance, took
the view that the practice being a ‘central tenet’ of a religion is one of a number of
factors to consider, but that the practice being a ‘central tenet’ of the subjective view of
the religion taken by the adherent is a vital factor. Thus, the subjective view of the
adherent was the focus of any enquiry, with the objective elements of the religion
concerned being an element therein. As the Constitutional Court continued in Pillay:
the centrality of a practice or a belief must play a role in determining how far another party
must go to accommodate that belief. The essence of reasonable accommodation is an
exercise of proportionality. Persons who merely appear to adhere to a religious and/or
cultural practice, but who are willing to forego it if necessary, can hardly demand the same
adjustment from others as those whose identity will be seriously undermined if they do not
follow their belief. . . . Centrality must be judged with reference only to how important the
belief or practice is to the claimant’s religious or cultural identity. In reaching that decision
the Court can properly look at a range of evidence including evidence of the objective
centrality of the practice to the community at large. That evidence however is only relevant
in so far as it helps to answer the primary inquiry of subjective centrality. The fact that a
practice is voluntary may also be relevant as many people will not feel that voluntary
practices are central to their religious or cultural identity. But there will also be those who,
although they do not feel obliged to observe a certain practice, feel that it is central to their
identity that they do so. They too deserve protection.39
Another method of avoiding limitation analysis is a form of contextual interpretation:
the courts will not protect practices under s 15 that are specifically excluded from
protection elsewhere in the Constitution. Section 16(2), for example, provides that the
advocacy of hatred that is based on race, ethnicity, gender or religion and that
constitutes incitement to cause harm, is not constitutionally protected. When it comes to
advocacy of hatred, it will not matter that the applicant is motivated by a religious
belief—the expression of the belief will not be protected. The same will apply to
practices such as torture and slavery; they are specifically prohibited and will not be
protected.40
In so far as persons practise their religion with other members of their religious
community, s 31(2) specifically provides that the exercise of the freedom may not be
inconsistent with the other provisions of the Bill of Rights. For example, if the state
compels children to attend school and the parents refuse on religious grounds, a
court may hold that the parents’ religious practice is inconsistent with the right of
children to basic education (s 29(1)) and that it is therefore not constitutionally
38
Pillay (note 6 above) [63]–[66].
39
Pillay (note 6 above) [86] and [88] (footnotes omitted).
40
See s 12(1)(d) and s 13.
321
protected. In Christian Education, the High Court found a similar argument

persuasive. The court held that corporal punishment in schools violated the right to
human dignity (s 10) and the protection against cruel, inhuman and degrading
treatment or punishment (s 12(e)). In these circumstances, s 31(2) makes clear that
the Constitution did not protect the applicants’ religious belief in corporal
punishment. The Constitutional Court preferred to strive for balance under s 36. It
held that the whole symbolic, moral and pedagogical purpose of the ban on corporal
punishment would be undermined if an exemption was carved out for the applicants.
It would further be difficult to monitor and control the administration of corporal
punishment, leaving children vulnerable to abuse. In these circumstances it was not
unreasonable to expect the applicants not to permit teachers to perform their
biblically ordained responsibility to punish their children in this particular manner.41
A similar line of reasoning was employed in Nkosi v Bührman where the Supreme
Court of Appeal held that the right to freedom of religion and religious practice has
internal limits and that it does not confer the right to choose or take a grave site
without the consent of the owner of the land concerned.42 In this case it was not
disputed that the applicant’s beliefs were that existing family graves constitute a
spiritual home for her ancestors and therefore the site where subsequent family dead
should be buried. However, giving effect to her beliefs would obviously run into
conflict with the owner’s property rights. This conflict was avoided by a restrictive
interpretation of the applicant’s religious rights, which was justified by the court on
the practical ground that the applicant could consecrate a new burial site, as her
family had done before on occasions where it proved difficult to use the existing site.
Whichever theoretical approach is followed, the substantive questions remain the
same. The first question to ask is whether different degrees of protection must be
afforded to different beliefs depending on their content. If so, religions that promote
key constitutional values, such as dignity, equality and freedom, must be afforded
greater protection than those that seek to undermine them. However, if content
differentiation is rejected, one must try to identify a content-neutral principle to
differentiate between legitimate and illegitimate types of limiting the freedom of
religion. Denise Meyerson has presented a powerful argument that the most
appropriate principle is harm: religious practices may only be limited if they cause
harm.43
One reason to avoid resolving freedom of religion disputes under the limitation
clause is the difficulty of the analysis that this requires. The analysis is difficult ‘first
because of the problems of weighing considerations of faith against those of reason,
and secondly because of the problems of separating out what aspects of an activity
are religious and protected by the Bill of Rights and what are secular and open to
regulation in the ordinary way.’44 While the state should avoid forcing believers to
choose between their faith and respect for the law, society can only cohere if certain
basic norms and standards apply to all. There is no automatic right to be exempted
from the laws of the land on the grounds of belief.45
41
Christian Education (CC) (note 14 above) [50]–[52].
42
Note 18 [49].
43
Meyerson (note 10 above) part I.
44
Ibid 34.
45
Ibid 35.
322
This dictum throws one back to the balancing exercise under the limitations clause
to draw the line between the laws that members of religious communities will have
to obey and those from which they must be exempt. In this regard it must be
remembered that our courts seem to apply the criteria mentioned in s 36 quite
loosely. That is, factors such as the nature of the right, the purpose of the limitation,
its nature and extent, the relation between the limitation and its purpose and the
question whether there are less restrictive means, are thrown onto the scales and a
balancing exercise is then performed.46 For example, in South Africa, the
determination of legislative purpose is not a threshold enquiry (at least not under
s 36) as it is in Canada. In Canada, if the purpose is invalid, the effects cannot be
relied upon to save the legislation.47 In South Africa, the only threshold enquiry
under s 36 is whether law of general application sanctions the limitation. If so, the
purpose is considered with other factors, such as the effect of the legislation, in order
to determine whether it is reasonable and justifiable in an open and democratic
society based on human dignity, freedom and equality.
Loose as the balancing may be, it is difficult to imagine how the freedom to
believe can ever be legitimately restricted by the state.48 As there can be no such
thing as a wrong belief or idea, and as beliefs as such cannot cause harm, there is no
justification for thought control. A distinction must, however, be made between the
holding of a belief and the public expression of a belief. As with other forms of
expression, there may be legitimate reasons for limiting proselytising (the attempt to
convert someone from one religion to another). The German Constitutional Court,
for example, has refused to extend the protection of religious freedom to an atheist
convict who attempted to bribe his fellow inmates to give up their religious beliefs
by offering them tobacco. The German Court held that the exploitation of the
confines of prison life by the ‘tobacco atheist’ was morally reprehensible, an abuse
and was not protected.49
As is recognised by the qualification contained in s 31(2), religious practices are
even more susceptible to limitation. The state may, and indeed must, prohibit
practices that cause physical or emotional harm to persons.50 The legitimacy of such
prohibitions is widely recognised in foreign jurisdictions.51 The prevention of harm
46
See S v Manamela 2000 (3) SA 1 (CC) [32] (‘In essence, the court must engage in a balancing exercise and
arrive at a global judgment on proportionality and not adhere mechanically to a sequential check-list’).
47
See the opinion of Dickson CJC in R v Big M Drug Mart (note 13 above).
48
Meyerson (note 10 above) 2.
49
12 BVerfGE 1 (1960). But see Kokkinakis v Greece 17 EHRR 397 (1994) (conviction of Jehovah’s Witness
for proselytising violates freedom of religion). Meyerson (note 10 above, 29) supports the decision in Kokkinakis,
arguing that proselytising can only be legitimately restricted where the attempt to persuade someone to change
their religion causes harm (for example, where it is accompanied by coercion or manipulation). In Kokkinakis,
according to Meyerson, ‘[t]here was no question of offensive nuisance, for Kokkinakis’s audience was hardly
captive: he had been voluntarily invited into her home and she could at any point have asked him to leave’.
50
It must do so, inter alia, to fulfil its duty under s 12(1)(c) (right to be free from all forms of violence from
either public or private sources). See Prince (CC) (note 14 above) [108] (includes the passing of legislation to
prohibit anti-social conduct and, where necessary, to enforce that prohibition by criminal sanctions).
51
See X, Y & Z v Sweden 5 EHRR 147 (1983) where the applicants complained that the Swedish criminal law
which prohibited parents from physically chastising their children was a violation of freedom of religion. The
applicants belonged to a Protestant denomination that believed in the necessity of physical punishment of
children on theological grounds. The Commission held that the law was a legitimate limitation of the right
because it was intended to prevent violence against and physical harm to ‘potentially weak and vulnerable
members of society’ such as children. Similarly, in South Africa, while an adult Jehovah’s Witness may refuse to
accept a blood transfusion, the Minister of Health may give consent to the treatment of children if the parents
323
was on the mind of the judges of the Cape High Court and the Supreme Court of
Appeal, when they considered whether to set aside a decision of the Law Society not
to register the contract of community service of a Rastafarian in Prince v President
of the Law Society, Cape of Good Hope.52 Acting in terms of the Attorney’s Act 53
of 1979, the Society refused to register the applicant’s contract of articles as it was
not satisfied that he was a ‘fit and proper person’. The reason was that the applicant
had two previous convictions for possession of dagga and made it clear that he
intended to continue using the drug in future. The applicant argued that his use and
possession was constitutionally protected as an exercise of his freedom of religion.
On appeal, the Constitutional Court unanimously held that that the general
statutory prohibition of possession of dagga (with the only exception being one for
medical use of the drug) was a violation of the right to freedom of religion.
Rastafarianism is a religion, and the use and consumption of dagga is of great
importance to the religion. The statutory prohibition on the possession of dagga was
therefore a limitation of the practical aspect of freedom of religion—the right to
manifest one’s beliefs by worship and practice, teaching and dissemination.53
Could the limitation be justified? The court divided on this point, the appeal
eventually being dismissed on the narrowest of margins. In essence, the dispute
among the members of the court is over factor (e) in the list of proportionality
factors in s 36: the availability of less restrictive means to achieve a particular
purpose.54 To achieve the purpose of controlling the market in dangerous drugs, is a
blanket prohibition on possession of dagga reasonably necessary? According to the
majority, the prohibition would have been overbroad if an exception for religious use
(along the lines of that for medical use) had been practically feasible. The majority
thought an exception was not feasible since it would be difficult to police and would
undermine the general prohibition.55 A permit system for Rastafari would entail
‘financial and administrative problems associated with setting up and implementing
any such system’.56 There would be considerable difficulties in policing the system
given the private nature of much religious consumption of the drug and the absence
of an established, formally organised structure for the religion.57 According to the
minority,
[t]he constitutional defect in the two statutes is that they are overbroad. They are not
carefully tailored to constitute a minimal intrusion upon the right to freedom of religion and
they are disproportionate to their purpose. They are constitutionally bad because they do not
refuse (previously s 39(1) of the Child Care Act 74 of 1983, now s 129(7) of the Children’s Act 28 of 2005). M
Katz ‘The Doctor’s Dilemma: Duty and Risk in the Treatment of Jehovah’s Witnesses’ (1996) 113 SALJ 484 and
Hay v B (note 18 above).
52
Prince v President of the Law Society, Cape of Good Hope 1998 (8) BCLR 976 (C). On appeal, the SCA
held that ‘one shudders at the thought of the consequences of lifting the ban [on the use of dagga] to Rastafarians
themselves and, more importantly, to society generally’. The appeal court further stated that any exemption for
Rastafarians would be impossible to police since it was not easy to establish who belonged to the religion and
when and how the drug is used as part of the practice of the religion. See Prince v President, Cape Law Society
2000 (3) SA 845 (SCA) [12].
53
Prince (CC) (note 14 above) [38] (Ngcobo J).
54
On the proportionality enquiry see, further, 7.2(b) in Chapter 7 above.
55
Prince (CC) (note 14 above) [133]ff.
56
Ibid [134].
57
The expert evidence was that ‘Rastafari has not imposed a centralised organisation structure on its
adherents’ (ibid [135]).
324
Religion, Belief and Opinion 15.3–15.4
allow for the religious use of cannabis that is not necessarily harmful and that can be
controlled effectively.58
In this vein, and extending the balancing act between rights, a further means to settle
such disputes is the application of the principle of ‘reasonable accommodation’. It is a
principle that holds increasing sway in determining the outcome of such disputes. While
not a new concept to the law, its place and scope were considerably enhanced and
defined in Pillay59. Reasonable accommodation is an exercise in proportionality that
will depend, ultimately and intimately, on the facts. As the Constitutional Court held in
Pillay, reasonable accommodation is:
At its core . . . the notion that sometimes the community, whether it is the State, an employer
or a school, must take positive measures and possibly incur additional hardship or expense
in order to allow all people to participate and enjoy all their rights equally. It ensures that we
do not relegate people to the margins of society because they do not or cannot conform to
certain social norms.60
In Pillay, the principle entailed a weighing of the relative importance of the religious
practice of wearing a nose-stud to the practitioner against the hardship that permitting
her to wear it would cause to the school (which had a school uniform code that
prohibited the wearing of any jewellery except earrings). It was held that there would be
no particular undermining of the principles underlying the code (instilling a sense of
discipline and respect for authority in the school’s learners) if an exemption was granted
out of respect for religious and cultural beliefs.61
15.4 EQUAL TREATMENT OF RELIGIONS

The idea of equal treatment of religions developed in reaction to the failure of the idea of
strictly separating church from state. To understand this development, some explanation
is needed of the ‘establishment clause’ jurisprudence in the United States.
The First Amendment to the US Constitution recognises the freedom of religion, but
adds that ‘Congress shall make no law respecting an establishment of religion’. Black J
explained the meaning of this clause as follows in Everson v Board of Education of the
Township of Ewing:
The ‘establishment of religion’ clause of the First Amendment means at least this: Neither a
state nor the Federal Government can set up a church. Neither can pass laws which aid one
religion, aid all religions, or prefer some religion over another. Neither can force nor
influence a person to go to or to remain away from church against his will or force him to
profess a belief or disbelief in any religion . . . . In the words of Jefferson, the clause against
58
Ibid [83]. Sachs J, in a separate dissenting judgment, nicely captured the reason for the difference of opinion
between majority and minority: ‘As I see it, the real difference between the majority judgment and that of
Ngcobo J relates to how much trouble each feels it is appropriate to expect the state to go to in order to
accommodate the religious convictions and practices of what in this case is a rather small and not very popular
religious community. I align myself with the position that where there are practices that might fall within a
general legal prohibition, but that do not involve any violation of the Bill of Rights, the Constitution obliges the
state to walk the extra mile’ ([149], footnote omitted).
59
Pillay (note 6 above).
60
Ibid [73].
61
Ibid [114].
325
establishment of religion by law was intended to erect ‘a wall of separation between Church
and State’.62
While the establishment clause, as originally conceived, was meant to support the free
exercise of religion, its application has increasingly run into conflict with the free
exercise of religion.63 In Abington School District v Schempp,64 Stewart J used the
example of a lonely soldier stationed at a faraway outpost who may legitimately
complain that, because the government did not provide him with some sort of pastoral
guidance, it actively suppressed his freedom to exercise his religion. Similarly, a
government which remains passive when the free exercise of minority religions is
suppressed by the dominant forces in society is implicated in the violation of the
freedom of religion.
A clear majority of the judges in S v Lawrence65 held that s 14 of the interim
Constitution did not include an ‘establishment clause’. Chaskalson P stated that one
ought not to read principles into s 14 of the interim Constitution that pertained to the
advancement or inhibition of a religion by the state. To do so, he added, would have
far-reaching implications beyond the apparent scope and purposes of the right. For
example, Christmas Day and Good Friday could no longer be public holidays, the
state broadcaster would have to rethink the broadcast of Christian church services on
Sundays, and state subsidies to Muslim, Anglican or Catholic schools would become
constitutionally suspect.66 O’Regan J also held that the absence of an express
establishment clause and the provisions of s 14(2) (allowing religious observances at
state or state-aided institutions) implied that a strict separation between religious
institutions and the state was not required by the interim Constitution.67
The Constitutional Court was, however, divided over whether s 14 included a right
to equal treatment of religions by the state. A narrow majority of the judges held that
it did. The case concerned provisions of the Liquor Act 27 of 1989, which prohibited
the sale of liquor on ‘closed days’ (defined as Sundays, Christmas Day and Good
Friday). The Act permitted liquor to be sold on closed days by restaurants, hotels
and the like in terms of an on-consumption licence, but prohibited the selling of
liquor on these days by the holders of other licences, including the holders of a
grocer’s wine licence. One of the applicants was the holder of a grocer’s licence and
had been convicted for contravening the prohibition on Sunday sales of wine.
62
Everson v Board of Education of the Township of Ewing 330 US 1 (1947) 15–16, quoted by O’Regan J in
S v Lawrence (note 12 above) [118]. Before Everson, the establishment clause was not understood as forbidding
financial aid to church schools, but rather as forbidding special advantages to a specific church. After Everson,
the objective of the clause was taken to be to cut all ties between state and church. This led to a great deal of
litigation and a complex, contradictory and, according to some, bizarre jurisprudence. See the examples cited by
Van Dijkhorst J in Wittmann v Deutscher Schülverein, Pretoria 1998 (4) SA 423 (T) 440–6. Important for South
Africa is that, in applying the establishment clause, the US Supreme Court has consistently held (see for example,
Engel v Vitale (note 2 above) and Wallace v Jaffree 472 US 38 (1985)) that prayer in government schools violates
the First Amendment.
63
For example, legislative accommodation of the right of free exercise of religion, such as a law which
prohibited employers from forcing Jewish people to work on Saturdays (Estate of Thornton v Caldor 472 US 703
(1985)) and a tax exemption available only to religious publications (Texas Monthly, Inc v Bullock 489 US
(1989)) have been struck down as violations of the establishment clause.
64
Abington School Dist v Schempp 374 US 203 (1963) 309.
65
Note 12 above.
66
Ibid [102].
67
Ibid [118]–[119].
326
Chaskalson P stated that he would have no difficulty in holding that a law

compelling observance of the Christian Sabbath offends the religious freedom of
those who do not hold Christian beliefs.68 But the Liquor Act was not such a law. In
South Africa, Chaskalson P held, Sundays have a secular as well as a religious
character.69 There was no evidence as to how, if at all, the Act interfered with the
freedom of religion or served any religious purpose.70 The Act did not compel
sabbatical observance and did not promote any particular religion.71 Neither did it
prohibit the doing of business on Sundays or force people to act or refrain from
acting in a manner contrary to their religious beliefs.72
Chaskalson P added that there may be circumstances in which the endorsement of
a religion by the state would contravene the freedom of religion. This would be the
case where the endorsement has the effect of coercing persons to observe the
practices of a particular religion, or placing constraints on them in relation to the
observance of their own religion.73 In Lawrence, the connection between the
Christian religion and the restriction against grocers selling wine on Sundays at a
time when their shops are open for other business was too tenuous to be
characterised as an infringement of the freedom of religion.74
O’Regan J agreed that the state should not coerce, but added an important extra
requirement. She held that the state must act fairly and equitably in its dealings with
the rich and diverse range of religions in South Africa. The requirement of equity is
something that adds to the requirement of voluntariness, but it does not require a
separation between church and state. According to O’Regan J, the state is permitted
to support religious observances, but it is not permitted to act inequitably. Instead, it
must act even-handedly in relation to the different religions.75 Even-handedness does
not demand a commitment to scrupulous secularism, or a commitment to complete
neutrality by the state on religious issues. Instead,
at times giving full protection to freedom of religion will require specific provisions to
protect the adherents of particular religions as has been recognised in both Canada and the
United States of America. The requirement of even-handedness too may produce different
results depending on the context which is under scrutiny. For example, in the context of
religious observances at local schools, the requirement of equity may dictate that the
religious observances should reflect, if possible, the religious beliefs of that particular
community or group. But for religious observances at national level, however, the effect of
68
Ibid [89].
69
Ibid [95]. Compare R v Edwards Books and Art [1986] 2 SCR 713, where the Canadian Supreme Court
upheld a provincial statute which prohibited retail stores from opening on Sunday, but contained an exception for
smaller stores that observed Saturday as a holiday. Unlike in the Big M Drug Mart case (note 13 above) where the
history showed that the statute undoubtedly had a religious purpose, the statute in Edwards Books had a secular
purpose, namely to provide a common pause day for retail workers. This purpose justified the infringement of the
freedom of religion.
70
S v Lawrence (note 12 above) [97].
71
Ibid [90].
72
Ibid [94].
73
Ibid [104].
74
Ibid [105]. See also Certification of the Constitution of the Western Cape, 1997 1997 (3) SA 795 (CC) [28],
where the Constitutional Court held that the statement ‘in humble submission to Almighty God’ found in the
preamble to the Western Cape Constitution did not violate the rights of believers or non-believers. Instead, it was
merely ‘a time-honoured means of adding solemnity’.
75
S v Lawrence (note 12 above) [122] (Goldstone J and Madala J concurring).
327
the requirement is to demand that such observances should not favour one religion to the
exclusion of others.76
O’Regan J further stated that explicit endorsement by the state of one religion over
others would not be constitutionally permissible for two reasons. First, when the power,
prestige and financial support of the state are placed behind a particular religious belief,
the indirect coercive pressure upon religious minorities to conform to the prevailing
officially approved religion is plain.77 Second, state endorsement of one religion over
another is itself a threat to the free exercise of religion, particularly in a society in which
there is a wide diversity of religion.78
O’Regan J concluded that Sundays, together with Christmas Day and Good
Friday, were selected as ‘closed days’ because of their significance for the Christian
religion.79 The purpose of the selection was not secular. In any event, even if it was
not the intention, the inevitable effect of choosing these days was to give a
legislative endorsement to Christianity.80 For O’Regan J then, the Liquor Act
resulted in a breach of the freedom of religion because it favoured one religion over
others.81 This meant that the Act’s provisions could only be saved if they constituted
a legitimate limitation of the right in terms of the limitation clause. O’Regan J
accepted that one of the purposes of the Act was to restrict the availability of liquor
on closed days in order to restrict the consumption of alcohol. However, this could
not have been the primary purpose since the Act permitted the selling of alcohol by
restaurants and hotels on closed days. The Act also did not prohibit the sale of liquor
on other public holidays. So, even if the Act did have the secular purpose of
reducing the consumption of alcohol, the exceptions and distinctions meant that it
could not achieve this purpose effectively. O’Regan J accordingly held these
particular provisions of the Liquor Act to be unconstitutional.
Sachs J appeared to endorse the idea that s 14 of the interim Constitution required
equitable state treatment of religions, but went even further by stating that the
section
was intended at least to uphold the following principles and values: South Africa is an open
and democratic society with a non-sectarian state that guarantees freedom of worship; is
respectful of and accommodatory towards, rather than hostile to or walled-off from, religion;
acknowledges the multi-faith and multi-belief nature of the country; does not favour one
religious creed or doctrinal truth above another; accepts the intensely personal nature of
individual conscience and affirms the intrinsically voluntary and non-coerced character of
belief; respects the rights of non-believers; and does not impose orthodoxies of thought or
require conformity of conduct in terms of any particular world-view. The Constitution, then,
is very much about the acknowledgement by the state of different belief systems and their
accommodation within a non-hierarchical framework of equality and non-discrimination. It
follows that the state does not take sides on questions of religion. It does not impose belief,
grant privileges to or impose disadvantages on adherents of any particular belief, require
76
Ibid [122].
77
Ibid [123], quoting Black J in Engel v Vitale (note 2 above) 431.
78
79
For the background, see B van Niekerk ‘Render unto Caesar: a Study of the Sunday Observance Laws in
South Africa’ (1969) 86 SALJ 27.
80
81
Ibid [129].
328
conformity in matters simply of belief, involve itself in purely religious controversies, or

marginalise people who have different beliefs.82
Sachs J held further that, although the selection of Sunday as a closed day did not
impose an unacceptable commercial disadvantage on non-Christians and did not result
in state-imposed observance of the Christian Sabbath in any significant way,83 the
message sent out by the choice of Sunday (along with Good Friday and Christmas Day),
was that the state still showed special solicitude to the views of certain Christians.84 The
religion right was therefore infringed. However, given the relatively minor nature of the
infringement, the Liquor Act, which had the purpose of reducing the damage caused by
alcohol abuse on particularly high-risk days, was a justifiable limitation of the right.
To summarise, Chaskalson P (and three other justices) saw the religion right
primarily as a right freely to exercise a religion. O’Regan J (and two others)
introduced the element of fair and equitable state treatment. Sachs J (and one other)
agreed with the latter approach but found even more in the religion right, including a
protection against symbolic messages favouring one religion over others. Sachs J
however held that the Liquor Act’s infringement of the right was justifiable under
the limitation clause. A majority of five was therefore in favour of the additional
requirement of equitable state treatment, but a ‘plurality’ of six found that the Liquor
Act did not violate s 15.85
In our view, the equality clause answers the concern about the undue favouring of
one religion over others, by prohibiting arbitrary differentiation and direct or indirect
unfair discrimination on, inter alia, religious grounds. In Lawrence, the applicant did
not rely on the equality clause and the court did not express an opinion on whether
such a challenge would have succeeded.86 O’Regan J’s additional requirement—that
the state must treat the different religions fairly and equitably—sought to introduce
an equality element into the religion right. Arguably, there is no need to do so, given
the detailed provisions of the equality clause and the reasonably well-developed
jurisprudence interpreting them.
A few comments must be added on the merits of the decision in Lawrence. There
is an obvious conflict between the need for a common pause day (‘day of rest’) and
the commercial interest in a seven-day working week. Proponents of the common
pause day argue that the effects of a seven-day working week are not only disastrous
for the Christian religion and other religious movements organised around Sunday,
but also for family life. Commercial groups argue that, for many people, religion has
become less important than employment. For this reason, the common pause day is a
relic of the past.
82
Ibid [148] (Mokgoro J concurring). See also Christian Education (CC) (note 14 above) [42] where Sachs J
held, this time for the entire court, that to single out a member of a religious community for disadvantageous
treatment will constitute unfair discrimination. However, he added, to accommodate the religious views of a
community by exempting them from a national law would not be unfair to others who do not hold that view.
83
Ibid [158].
84
Ibid [163].
85
A plurality occurs when a majority of a multi-member court is in favour of a particular outcome, but where
the individual members of that majority give different reasons for the outcome.
86
S v Lawrence (note 12 above) [102] (Chaskalson P), [129] (O’Regan J). We submit that the result of an
equality challenge would have been exactly the same. In respect of unfair discrimination, for example,
Chaskalson P would have concluded, for the reasons mentioned in his judgment, that the discrimination was not
unfair. O’Regan J would have held that it was unfair and therefore unconstitutional, while Sachs J would have
held that the unfair discrimination was justified in terms of the limitation clause.
329
If the state decides on a seven-day working week, the free exercise of religion in a
country like South Africa, where the majority of the people are Christian, will
certainly be curtailed. Similarly, if the state decides to institute a common pause day,
it is justifiable to choose Sunday. However, the institution of such a day raises the
further constitutional issue of unfair discrimination on grounds of religion. If this is
so, perhaps the state should stay out of the dispute (ie, not legislate) and let the issue
be privately resolved. Trade unions are certain to object to a seven-day working
week. Where they fail, practical accommodation for Christians who do not want to
work on Sunday must be mandatory, just as it should be for religious persons who
observe another day of rest.87
The Labour Relations Act 66 of 1995 provides the appropriate framework to
tackle the issue of Sunday work. The Act already deals with other
employment/religion issues, particularly in Schedule 7 on ‘unfair labour practices’.
The chapter gives relief to religious workers who must observe dress requirements
and religious holidays. Also, in terms of s 2 of the Act, dismissal for exercising a
religious belief is regarded as automatically unfair.
15.5 RELIGIOUS OBSERVANCES IN STATE INSTITUTIONS

Section 15(2) makes clear that religious observances at state or state-aided institutions
will not give rise to constitutional complaint if (1) the observances are established under
rules made by an appropriate authority, (2) they are equitable and (3) attendance at them
is free and voluntary.88
The terms ‘religious observances’ and ‘state-aided institutions’ need to be interpreted
at the outset. Should a broad or a narrow definition be given to these terms? As there is
no establishment clause in South Africa, s 15(2) is not an exception to the protection
afforded by the right to religion. It therefore differs from, for example, s 16(2), which
demarcates the right to freedom of expression. Section 15(2) merely confirms the
principles developed by O’Regan J in Lawrence. It explains what freedom of religion
means in South Africa. This supports, in our view, a broad construction of its terms.
However, even though s 15(2) is permissive, it contains instructions in respect of
religious observances that are specific and not subject to the limitation clause. The
subsection was clearly intended to deal with the issue of religion in government schools.
If applied generally to all state institutions, and on a generous interpretation of the term
‘state-aided’ to include all private associations that receive some support from the state
(be it a tax benefit or financial support), the specific duties imposed by s 15(2) may be
too burdensome. With this in mind, and since the general right to freedom of religion
and the right to equality prescribe the same principles but allow a more flexible
87
Religious workers should be accommodated by the employer even if this would lead to a dispute with the
union. Despite Lawrence (ibid), some statutory provisions remain suspect from the point of view of the
constitutional requirement of equal treatment of religions. Section 16 of the Basic Conditions of Employment Act
75 of 1997 provides that workers must be paid more for working on a Sunday. Also, the only religious holidays
recognised by the Public Holidays Act 36 of 1994 are Good Friday and Christmas. Less problematic, since they
are capable of equal application, are the provisions that afford religious institutions preferential tax treatment. See
R Franzsen ‘Chapter 3 and Tax Law: Privacy and Religious Freedom’ 1995 De Rebus 169.
88
See O’Regan J in S v Lawrence (note 12 above) [119]. See also s 7 of the South African Schools Act 84 of
1996.
330
application of them, we support the narrow interpretation of the terms by Van Dijkhorst
J in Wittmann v Deutscher Schülverein, Pretoria.89
In Wittmann, the High Court held that a ‘religious observance’ is an act of religious
character, a rite. The observance must be religious, in the sense of ‘human recognition of
superhuman controlling power and especially of a personal God or gods entitled to
obedience and worship’ such as practised by Jewish, Christian, Moslem, Buddhist or
Hindu worshippers. This definition would exclude, for example, observances by African
traditionalists.90 The court also distinguished religious observances from religious
education. Religious education can be of a confessional nature (such as study of the
Koran) or of an informative general nature, but neither can be called a ‘religious
observance’.91 On this interpretation, the specific instructions contained in s 15(2) apply
only to a narrow category of religious practices.
The court’s definition of ‘state-aided institutions’ is even narrower. According to the
court, the term has a specific meaning in educational circles. It refers to a very specific
group of colleges, schools, homes (for example, for the handicapped) or classes in
respect of which state grants-in-aid and loans are made. State-aided institutions are all
educational institutions, but they are not all ‘schools’. They are neither public in the
sense of state-funded and state-controlled, nor private. State-aided institutions lie
somewhere in between: they are not public, but funded by the state to an appreciable
extent and subject to extensive state regulation. On this definition, the German School,
which was registered as a private school but received more than R1 million in
government support each year, was not regarded as a state-aided institution. This meant
that it was not subject to s 14(2)—the interim Constitution’s equivalent of s 15(2)—and
could compel learners to attend religious observances and confessional education.
Although we support the court’s narrow definition of ‘observances’ and ‘state-aided’,
it must be kept in mind that the Wittmann case was decided under the interim
Constitution where freedom of religion did not have direct horizontal application. What
is the position under the 1996 Constitution? We will deal with private institutions at the
end of this section. As far as state and state-aided institutions are concerned, s 15(2)
applies. We support restricting the application of s 15(2) to what are commonly known
as ‘government schools’. In respect of other state institutions, the general principles
would apply.92 Further, ‘religious observance’ refers only to those practices of worship
(such as prayer or reading from scripture) associated with religions that are centred on a
deity. It does not refer to religious education, whether confessional or not. In our view, it
is only in respect of such religious observances in government schools that Chaskalson
P remarked as follows in Lawrence:
the context of a school community and the pervasive peer pressure that is often present in
such communities, voluntary school prayer could also amount to the coercion of pupils to
participate in the prayers of the favoured religion . . . s 14(2) interim Constitution makes
clear that there should be no such coercion. It is in this context that it requires the regulation
of school prayers to be carried out on an equitable basis. I doubt whether this means that a
89
Note 62 above.
90
This does not mean that African traditional beliefs are barred from schools. On the contrary: since s 15(2)
does not apply, there may be more room for introducing such observances.
91
Wittmann (note 62 above) 449E.
92
In respect of some institutions, such as the SABC, other constitutional provisions may also apply. See s 192
of the Constitution (broadcasting must be regulated ‘to ensure fairness and a diversity of views broadly
representing South African society’).
331
school must make provision for prayers for as many denominations as there may be within
the pupil body; rather it seems to me to require education authorities to allow schools to
offer the prayers that may be most appropriate for a particular school, to have that decision
taken in an equitable manner applicable to all schools, and to oblige them to do so in a way
which does not give rise to indirect coercion of the ‘non-believers’.93
Section 15(2) therefore does not apply to religious education, whether it is taught
through a multiple single-faith confessional sort of curriculum or by way of a multi-faith
informative type of curriculum. When it comes to religious education, government
schools must treat religions equitably, and must also make provision for non-believers.94
But parents may compel their children to attend single-faith confessional religious
education and the school may compel learners to attend multi-faith courses in religion
and to take examinations in such courses.95 The multi-faith curriculum therefore seems
easier to manage, but the Constitution does not prescribe the one curriculum or the
other.96
In South Africa, complaints are likely to come from believers rather than from
non-believers. For the former, the debate is not really about ten minutes of religious
observance at school each day, or even a half hour single-faith confessional lecture
twice a week. It is rather about the desire to educate children within the value
system of a particular religious group.97 It is, in other words, about a certain type of
education. The demand is for schools to demonstrate to pupils that religion is not
something that can be isolated and restricted to a few minutes a day, but that it
forms part of daily life. In other words, the believers’ demand is for fully-subsidised
denominational schools. The government is unlikely to accede to this demand. Such
schools may not be cost effective. They may also be divisive, especially since
religion and race often overlap. In a diverse society such as South Africa,
government schools also serve to bring children from different backgrounds together.
The courts are even less likely to be sympathetic. In fact, the demand has already
been rejected by the Constitutional Court in the Gauteng School Education Bill98
case and the Christian Education case.99
93
S v Lawrence (note 12 above) [103]. Notice that Chaskalson P restricted his remarks to ‘schools’ and
‘prayers’. O’Regan J’s approach is slightly broader. At [120] she remarked that s 14(2) of the interim Constitution
forbids the state from making attendance at religious ceremonies compulsory.
94
A further problem with applying s 15(2) to religious education is that, since the section caters for religious
observances, it does not make explicit provision for non-believers.
95
In Wittmann (note 62 above) 449G, the court stated that attendance at religious education classes must be
‘free and voluntary’. This statement must be taken to refer only to single-faith confessional religious classes.
96
The additional problem with confessional education is that it must be taught by appropriately qualified
people. This problem may be overcome by bringing in outside religious instructors for minority (or even
majority) religious groups, but is not certain whether there will be enough such instructors available.
97
See Christian Education (CC) (note 14 above) [15] (‘The parents have a general interest in living their lives
in a community setting according to their religious beliefs, and a more specific interest in directing the education
of their children’).
98
Ex parte Gauteng Provincial Legislature: In re Dispute Concerning the Constitutionality of Certain
Provisions of the Gauteng School Education Bill of 1995 1996 (3) SA 165 (CC) [10]: ‘the language of s 32(c) [of
the interim Constitution; cf s 29(3) of the 1996 Constitution] does not support a claim that such educational
institutions, based on a commonality of culture, language or religion, must be established by the State, or a claim
that any person is entitled to demand such establishment, notwithstanding the fact that his or her right to basic
education and to instruction in the language of his or her choice is, where practicable, otherwise being satisfied
by the State’.
99
Note 14 above. The court rejected a demand by a group of Christians to allow their children to be educated
with the use of ‘corporal correction’.
332
Religion, Belief and Opinion 15.5–15.6
For the religiously inclined there remains only one option. They have to establish
and maintain, at their own expense, independent educational institutions. The right to
do so in terms of s 29(3) is qualified in that the private school may not discriminate
on the basis of race, must register with the state and must maintain certain standards.
Are there any obligations under s 15? We have argued that private schools are not
subject to s 15(2), even if they obtain some subsidy from the government. To the
extent that the freedom of religion applies horizontally, it binds private schools.
However, s 29(3) and s 31 implicitly recognise that private schools may discriminate
on the basis of gender, culture, language and religion. This means that private
schools may legitimately restrict admission to pupils from a particular religious
group and that they will not have to treat all religions equitably when it comes to
religious observances and religious education. The right to freedom of religion and
equality does not apply to private schools to this extent. Such schools may not,
however, compel learners to attend religious observances. This, we believe, would be
a violation of the freedom of religion.
15.6 LEGISLATION RECOGNISING RELIGIOUS AND TRADITIONAL MARRIAGES AND

SYSTEMS OF PERSONAL AND FAMILY LAW
The possibility of converting a religious or traditional marriage into a civil one has
always existed, provided that the legal requirements for such a marriage (that it is
monogamous, for example)100 were complied with. However, for traditionalists and
religious believers such a conversion would defeat their purpose since, from the state’s
point of view, civil law and not customary law or religious law would then apply to the
marriage. Faced with the choice between non-recognition of their marriage by the state
and compliance with a ‘foreign’ legal system instead of their own, many opted for the
former. This meant that such couples were not considered legally married, their children
were considered to be illegitimate and they had to rely on traditional or religious
authorities and not on the courts to enforce the consequences of their union.
Section 15(3) allows for the legislative recognition of customary and religious
marriages and empowers the state to give effect to such marriages in terms of a system
of traditional or religious law. Any such recognition must, however, be consistent with
s 15 and the rest of the Constitution. This raises the problem of compatibility of
traditional and religious law with the Constitution. There are numerous areas of conflict.
Polygyny is discriminatory against women.101 Also, in terms of Jewish and Muslim law
it is easier for men to divorce women than for women to divorce men,102 while under
African customary law women are considered minors and subject to the guardianship of
100
‘With us marriage is a union of one man with one woman, to the exclusion, while it lasts, of all others’:
Seedat’s Executors v The Master (Natal) 1917 AD 302, 309 (Innes CJ). While the monogamous aspect of the
common-law definition of marriage remains valid, the heterosexual aspect does not. See para 9.4(f)(iii)(cc) in
Chapter 9 above.
101
See F Kaganas & C Murray ‘Law, Women and the Family: The Question of Polygyny in a New South
Africa’ in T Bennett et al (eds) African Customary Law (1991) 116, but compare CRM Dlamini ‘Should We
Legalise or Abolish Polygamy’ (1989) 22 CILSA 330.
102
See SA Law Commission Report on Jewish Divorces (Project 76, 1994); M Friedman ‘Jewish Divorces—a
Purposeful and Pragmatic Solution by the South African Law Commission’ (1994) 111 SALJ 97. The Law
Commission’s proposal, that the husband must give the wife a religious divorce before the civil divorce is
granted, was adopted in the Divorce Amendment Act 95 of 1996.
333
their husbands.103 In terms of Muslim Personal Law, widows inherit less than they
would under civil law104 and women have a very limited entitlement to maintenance if
their husbands leave them.105
The drafting of legislation will therefore be a difficult affair primarily because
religious-based marriage, personal and family law often discriminates against women.
The same was of course true of the common law of marriage, until the legislature
intervened to remove the most blatant forms of discrimination.106 The only alternative
seems to be legislation that recognises traditional and religious marriages, and gives
effect to them in terms of customary and religious law, but that removes the
discriminatory elements of those systems of law.
In the past, legislative recognition of religious and traditional marriages was
haphazard and discriminatory, particularly against Muslim and Hindu people.107 In the
case of customary marriages, there was statutory recognition for limited purposes: for
example, the widow of an African customary marriage can recover damages for the loss
of her husband.108 Over the last few years, the legislature has attempted to extend
recognition on a non-discriminatory basis and for broader objectives.109
An important start was made with the enactment of the Recognition of Customary
Marriages Act 120 of 1998. The Act recognises customary marriages while seeking to
ensure the equal status and capacity of the spouses. Polygyny is permitted as long as the
husband has a written contract approved by a court which will then regulate the
matrimonial property system of his marriages. The South African Law Reform
Commission has recommended similar legislation on the recognition of marriages
contracted in terms of Muslim Personal Law.110
103
SA Law Commission Harmonisation of the Common Law and Indigenous Law: Report on Customary
Marriages (Project 90, August 1996).
104
N Moosa An Analysis of the Human Rights and Gender Consequences of the New South African
Constitution and Bill of Rights with Regard to the Recognition and Implementation of Muslim Personal Law LLD
Dissertation (UWC, 1996). J Sinclair The Law of Marriage (1996) 158–80.
105
See F Cachalia ‘Citizenship, Muslim Family Law and a Future South African Constitution: a Preliminary
Enquiry’ (1993) 56 THRHR 392, 402.
106
The marital power was abolished prospectively for marriages between white people in the Matrimonial
Property Act 88 of 1984, for civil marriages between black people in the Marriage and Matrimonial Property
Laws Amendment Act 3 of 1988 and for all existing civil marriages in the General Law Fourth Amendment Act
132 of 1993. The Prevention of Family Violence Act 133 of 1993 abolished the marital rape exemption. Before it
came into operation a man could not be found guilty of raping his wife, but only of assault. See J Sinclair ‘Family
Rights’ in D van Wyk et al (eds) Rights and Constitutionalism (1994) 520.
107
Customary marriages have always been given a greater degree of recognition in legislation than Muslim
and Hindu marriages. See for example s 27 of the Child Care Act 74 of 1983 (father of child born in customary
marriage must give consent to adoption of child, but father’s consent not required if married according to Muslim
rites). This section was struck down as unfair discrimination in Fraser v Children’s Court, Pretoria North 1997
(2) SA 261 (CC). The Act was amended by the Adoption Matters Amendment Act 56 of 1998 to recognise
religious marriages, such as a Muslim marriage, for purposes of adoption.
108
See s 31 of the Black Laws Amendment Act 76 of 1963 and Sinclair (note 104 above) 558.
109
Statutes such as the Intestate Succession Act 81 of 1987 gave general relief to what were considered to be
illegitimate children for purposes of intestate succession. In Bhe v Magistrate, Khayelitsha 2005 (1) SA 850 (CC)
the Intestate Succession Act was made applicable to intestate deceased estates previously governed by customary
law and by the Black Administration Act [136].
110
South African Law Reform Commission Report on Islamic Marriages and Related Matters (July 2003).
The Draft Bill proposed by the Commission makes provision for the recognition of existing Muslim marriages,
including monogamous and polygynous marriages, as well as an existing civil marriage to a second wife.
334
15.7 COMMON-LAW RECOGNITION OF RELIGIOUS MARRIAGES

Prior to the Constitution, Muslim and Hindu marriages were not recognised by the
common law because they are potentially polygamous. The courts have now given a
degree of recognition to such marriages. In Ryland v Edros,111 the Supreme Court
enforced a contract arising from a Muslim marriage. The contract provided that Islamic
law would govern the marriage of the parties. In terms of Islamic law, the wife was
entitled to certain benefits that would have enabled her to resist her husband’s action for
her eviction from his house. The court held that the values of equality and tolerance of
diversity and the recognition of the plural nature of our society inform the concepts of
public policy and boni mores that the courts apply when considering whether to
recognise a marriage.112 The court was no longer prevented from enforcing a contract
arising from a union that was potentially polygamous but that was in fact
monogamous.113
In Amod v Multilateral Motor Vehicle Accident Fund,114 the Supreme Court of
Appeal dealt with a claim for compensation for loss of support brought by a widow who
had been married under Islamic law. The plaintiff’s husband was killed in a motor
vehicle accident on 25 July 1993. In January 1997, the plaintiff lodged a claim against
the Fund for compensation for loss of support. In terms of its governing statute, the Fund
was obliged to compensate Mrs Amod if her husband had owed her a duty of support
under the common law. But, because the common law did not recognise Islamic
marriages because they were potentially polygamous, there was therefore no legally
recognised duty of support between the plaintiff’s husband and herself. According to the
Supreme Court of Appeal, the dependant’s action for the death of a breadwinner was
available in the following circumstances: if the deceased had a legally enforceable duty
to support the dependant; if it was a duty arising from a solemn marriage in accordance
with the tenets of a recognised and accepted faith; if it was a duty which deserved
recognition and protection for the purposes of the dependent’s action.115 This conclusion
was reached without reference to the Constitution. The court held that the boni mores
informing whether a marriage should be recognised or not had changed by 1993 when
the cause of action in this particular case arose: ‘This new ethos is substantially different
from the ethos which informed the determination of the boni mores of the community
when the cases which decided that “potentially polygamous” marriages which did not
accord with the assumptions of the culturally and politically dominant establishment of
the time did not deserve the protection of the law for the purposes of the dependant’s
action.’116
111
Ryland v Edros 1997 (2) SA 690 (C).
112
In the course of his judgment, Farlam J made the interesting point (ibid 86C) that it may be inappropriate
and indeed undesirable for a secular court to pronounce on religious law, even when proprietary or other legal
rights are involved. This is because in doing so it may become entangled in doctrinal matters in a country which
has a Constitution which entrenches the right to freedom of religion. However, in Ryland the court held that the
issues before it did not require any religious doctrines to be interpreted (despite the fact that the court recognised
that there is a continuity of Muslim law, religion, culture and identity and no clear barrier between the religious
and secular spheres).
113
The court stressed that the same does not necessarily apply to unions that were actually polygamous.
114
Amod v Multilateral Motor Vehicle Accident Fund 1999 (4) SA 1319 (SCA).
115
Ibid [26].
116
Ibid [21]. The reason for this somewhat strained conclusion is that the court wished to avoid the difficult
issues of retrospective application of the Constitution that the case raised, given that the cause of action had
occurred prior to commencement of the interim Constitution. These issues are set out (but not decided) in the
335
In Daniels v Campbell117 this new ethos was extended to interpreting legislation.

There, the terms ‘spouse’ and ‘survivor’ in the Maintenance of Surviving Spouses Act
27 of 1990, which grant to surviving spouses the right to claim maintenance from the
estates of their deceased spouses, were read down to include Muslim marriages. In that
matter, however, the marriage was a monogamous one and only potentially polygamous
and the Constitutional Court was anxious to leave the complex question of polygamous
marriages for another day.
That ‘other day’ was to follow only some years later with the decision in Hassam v
Jacobs.118 This time, the Intestate Succession Act 81 of 1987 was under consideration.
The term “or spouses” was read in to accompany “spouse” in allowing the two surviving
wives of a polygamous Muslim marriage to benefit from intestate succession. The
Constitutional Court was careful to note that the recognition of the polygamous
marriage was being extended only in this area of law, however, and did not purport to
make a general pronouncement on the constitutional validity of polygamous Muslim
marriage.119 Yet, applying a classic Harksen-style unfairness analysis, the court took the
view that discrimination in this area of the law was impermissible. It would appear to be
only a matter of time before this issue is raised again and, following the course already
chartered, recognition of such marriages will probably become more widespread in
South African law.120
decision of the Constitutional Court refusing leave to appeal directly, in Amod v Multilateral Motor Vehicle
Accident Fund 1998 (4) SA 753 (CC).
117
Daniels v Campbell 2004 (5) SA 331 (CC).
118
Hassam v Jacobs NO 2009 (5) SA 572 (CC).
119
Ibid [16].
120
Harksen v Lane NO 1998 (1) SA 300 (CC).
336
Chapter Sixteen
Expression
16.1 The scope of the right and its rationale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 338
16.2 ‘Expression’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 341
16.3 Expression afforded specific recognition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 343
(a) Freedom of the press and other media. . . . . . . . . . . . . . . . . . . . . . . . . . . . 343
(i) ‘Press exceptionalism’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 343
(ii) Compelled disclosure of journalists’ sources . . . . . . . . . . . . . . . . 344
(iii) The regulation of broadcasting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 347
(iv) Broadcasting of and access to court proceedings by the
media. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 348
(v) Restrictions on reporting of divorce proceedings . . . . . . . . . . . . 350
(b) Freedom to receive and impart information and ideas . . . . . . . . . . . . 350
(c) Freedom of artistic creativity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 351
(d) Academic freedom and freedom of scientific research. . . . . . . . . . . . 351
(e) Free speech in legislatures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 352
16.4 Expression specifically excluded . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 353
(a) Application of the hate speech qualification . . . . . . . . . . . . . . . . . . . . . 353
(b) Propaganda for war . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 354
(c) Incitement of imminent violence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 355
(d) Hate speech. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 356
16.5 Controversial areas of application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 361
(a) Commercial expression . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 361
(b) Pornography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 363
(c) Defamation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 365
(i) The common law and the indirect application of the
Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 366
(ii) The common law reconsidered: National Media Ltd
v Bogoshi. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 367
(iii) Bogoshi confirmed: Khumalo v Holomisa . . . . . . . . . . . . . . . . . . . 369
(iv) The state of the law of defamation . . . . . . . . . . . . . . . . . . . . . . . . . . 372
(d) Prior restraints on publication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 374
(e) Other common-law restrictions on expression . . . . . . . . . . . . . . . . . . . . 375
Freedom of expression
16. (1) Everyone has the right to freedom of expression, which
includes—
(a) freedom of the press and other media;
(b) freedom to receive or impart information or ideas;
337
(c) freedom of artistic creativity;

(d) academic freedom and freedom of scientific research.
(2) The right in subsection (1) does not extend to—
(a) propaganda for war;
(b) incitement of imminent violence;
(c) advocacy of hatred that is based on race, ethnicity, gender or
religion, and that constitutes incitement to cause harm.
16.1 THE SCOPE OF THE RIGHT AND ITS RATIONALE

Section 16 protects free expression generally but also specifically includes protection for
the freedom of the press and media, the freedom to receive and impart information and
ideas, artistic creativity, and academic freedom and scientific research. Section 16(2)
places certain forms of expression outside the scope of the right: propaganda for war,
incitement of imminent violence and certain forms of hate speech are not
constitutionally protected expression.1
Compared to its predecessor, s 15 of the interim Constitution,2 what is immediately
noticeable about s 16 is the inclusion of the s 16(2) qualification. The model for this
formulation is arts 19 and 20 of the International Covenant on Civil and Political
Rights.3 Like the ICCPR, this qualified formulation of the right (along with the general
criteria for limitations of rights in s 36) set s 16 apart from the ‘more absolutist
guarantees of freedom of expression in numerous state constitutions, and the exalted
position given to free speech in Western liberal theory’.4 It is important to keep this in
mind when seeking comparative material to interpret s 16. In particular, one should be
cautious about drawing lessons from the First Amendment jurisprudence of the United
States, which is ‘extraordinarily’ protective of freedom of expression5 and is premised
on the principle of content neutrality,6 a principle that is difficult to reconcile with the
specific content prohibitions of s 16(2).7 That said, the voluminous and often fascinating
1
Islamic Unity Convention v Independent Broadcasting Authority 2002 (4) SA 294 (CC) [32].
2
Freedom of expression
(1) Every person shall have the right to freedom of speech and expression, which shall include freedom of the
press and other media, and the freedom of artistic creativity and scientific research.
(2) All media financed by or under the control of the state shall be regulated in a manner which ensures
impartiality and the expression of a diversity of opinion.
3
Article 19 of the Covenant protects the right to freedom of expression subject to permissible limitations to
protect the rights or reputations of others or for the protection of national security and public order. Article 20
contains mandatory limitations to freedom of expression by requiring states to outlaw propaganda for war and
hate speech.
4
Joseph et al The International Covenant on Civil and Political Rights (2000) 410. The authors note that the
formulation has prompted reservations to art 20, inter alia by the USA, Belgium, Denmark, Finland and Iceland.
The classic example of the exaltation of free speech in liberal political theory is JS Mill On Liberty (1859): ‘there
ought to exist the fullest liberty of professing and discussing, as a matter of ethical conviction, any doctrine,
however immoral it may be considered’.
5
This is Ronald Dworkin’s assessment: Freedom’s Law (1996) 195.
6
See, for example, Police Department of Chicago v Mosley (1972) 408 US 92, 95: ‘[a]bove all else, the First
Amendment means that government has no power to restrict expression because of its message, its ideas, its
subject matter or its content’.
7
See the remarks of Kriegler J in S v Mamabolo 2001 (3) SA 409 (CC) [41]: ‘The fundamental reason why the
[clear and present danger] test evolved under the First Amendment cannot lock on to our crime of scandalising
the court is because our Constitution ranks the right to freedom of expression differently. With us it is not a
338
Expression 16.1
US First Amendment case law has had a considerable influence on the interpretation of
the right.
But even if freedom of expression in the South African Constitution is not as
extraordinarily valued as it is in the US Constitution, we do need a sense of what its
value is to us in order to know what its legitimate limits are.8 The interpretation of rights
in the Constitution must be ‘generous’ and ‘purposive’ and must ‘give . . . expression to
the underlying values of the Constitution’.9 The balancing of rights against the reasons
for the limitation requires an assessment of competing principles, requiring us to know
what weight to give freedom of expression in this enquiry. This requires in the first place
an assessment of the purpose, or the point of protecting freedom of expression.
In an important intervention on the topic, Ronald Dworkin identified two categories
into which the various defences of free speech can be classified: the instrumental and the
constitutive. Instrumental arguments defend free speech because of what it can do for
us: free speech is important ‘not because people have any intrinsic moral right to say
what they wish, but because allowing them to do so will produce good effects for the rest
of us’.10 The second, constitutive conception of free speech sees it as valuable because
expression is an important part of what it means to be human:
. . . [F]reedom of speech is valuable, not just in virtue of the consequences it has, but
because it is an essential and ‘constitutive’ feature of a just political society that government
treat all its adult members . . . as responsible moral agents. That requirement has two
dimensions. First, morally responsible people insist on making up their own minds what is
good or bad in life or in politics, or what is true and false in matters of justice or faith.
Government insults its citizens, and denies their moral responsibility, when it decrees that
they cannot be trusted to head opinions that might persuade them to dangerous or offensive
convictions. We retain our dignity, as individuals, only by insisting that no one—no official
and no majority—has the right to withhold an opinion from us of the ground that we are not
fit to hear and consider it.11
These two kinds of justification of free speech, as Dworkin points out, are different but
not mutually exclusive. They are different because the first conception is ‘more fragile
and more limited’. The fragility is a product of the fact that the instrumental purposes
that are an argument in favour of free speech are often arguments in favour of limiting it.
pre-eminent freedom ranking above all others. It is not even an unqualified right. The First Amendment declaims
an unequivocal and sweeping commandment; section 16(1), the corresponding provision in our Constitution, is
wholly different in style and significantly different in content. It is carefully worded, enumerating specific
instances of the freedom and is immediately followed by a number of material limitations in the succeeding
subsection. Moreover, the Constitution, in its opening statement and repeatedly thereafter, proclaims three
conjoined, reciprocal and covalent values to be foundational to the Republic: human dignity, equality and
freedom. With us the right to freedom of expression cannot be said automatically to trump the right to human
dignity. The right to dignity is at least as worthy of protection as is the right to freedom of expression. How these
two rights are to be balanced, in principle and in any particular set of circumstances, is not a question that can or
should be addressed here. What is clear though and must be stated is that freedom of expression does not enjoy
superior status in our law’ (footnotes omitted).
8
‘If liberty of expression is not valued, as has often been the case in human history, there is no problem;
freedom of expression is simply curtailed in favor of other competing values. Free speech only becomes a
volatile issue when it is highly valued because only then do the limitations placed on it become controversial.’
D van Mill ‘Freedom of Speech’ in EN Zalta (ed) The Stanford Encyclopedia of Philosophy (Winter 2002
Edition) <http://plato.stanford.edu/archives/win2002/entries/freedom-speech/>.
9
S v Makwanyane 1995 (3) SA 391 (CC) [9]. See para 6.3 in Chapter 6 above.
10
Dworkin (note 5 above) 200. See the discussion by D Davis ‘Freedom of Expression’ in H Cheadle et al
South African Constitutional Law: The Bill of Rights (2002) 219.
11
Dworkin (note 5 above) 200.
339
It is limited because ‘while the constitutive justification extends, in principle, to all

aspects of speech or reflection in which moral responsibility demands independence, the
instrumental one, at least in its most popular versions, concentrates mainly on the
protection of political speech’.12 Dworkin’s point is that both arguments are necessary
for a conception of freedom of expression that is sufficiently strong and wide-ranging
(‘generous’ as the Makwanyane interpretative formulation puts it) to do justice to the
concept.
There are traces of both arguments in the South African jurisprudence interpreting
the right to freedom of expression. For example, in S v Mamabolo Kriegler J held
that:
Having regard to our recent past of thought control, censorship and enforced conformity to
governmental theories, freedom of expression—the free and open exchange of ideas—is no
less important than it is in the United States of America. It could actually be contended with
much force that the public interest in the open market-place of ideas is all the more
important to us in this country because our democracy is not yet firmly established and must
feel its way. Therefore we should be particularly astute to outlaw any form of thought
control, however respectably dressed.13
This conforms to Dworkin’s instrumental conception of the right: freedom of speech is
important because it contributes to the Constitution’s project of overturning an
authoritarian polity and establishing a democracy in its place. There can be no doubt
about the force and attractiveness of this interpretation of the right.14 However, this
conception of the right should not be focused on to the extent that the intrinsic and
dignity-reinforcing value of free expression is obscured. This second attribute of
freedom of expression is comparatively less theorised than the first, but has been
endorsed by the Constitutional Court in a number of cases.15
That said, there is a tendency in the South African jurisprudence to valorise
political speech and to place comparatively less value on other forms. This occurs
not at the interpretative stage of analysis (what forms of ‘expression’ are protected
by the Constitution?) but at the second, limitation stage (is a limitation of a
particular form of expression justifiable?). The Constitutional Court has distinguished
between the ‘core values’ of freedom of expression and ‘expression of little value
12
Ibid 201.
13
Note 7 above [37].
14
See South African National Defence Force Union v Minister of Defence 1999 (4) SA 469 (CC) [7]
(‘Freedom of expression lies at the heart of a democracy. It is valuable for many reasons, including its
instrumental function as a guarantor of democracy, its implicit recognition and protection of the moral agency of
individuals in our society and its facilitation of the search for truth by individuals and society generally’); Banana
v Attorney-General 1999 (1) BCLR 27 (ZS), 31F (‘[Freedom of expression] is recognised as a core value of
society, essential to truth, democracy and personal fulfilment’); Kauesa v Minister of Home Affairs 1995 (11)
BCLR 1540 (NmS), 1554C. See, further, SA National Defence Force Union v Minister of Defence 1999 (3)
BCLR 321 (T), 331 (freedom of expression facilitates peaceful change in a society).
15
South African National Defence Union (note 14 above) [8] (freedom of expression one of a ‘web of
mutually supporting rights’ in the Constitution, closely related to freedom of religion, belief and opinion, the
right to dignity, as well as the right to freedom of association, the right to vote and to stand for public office and
the right to assembly); Khumalo v Holomisa 2002 (5) SA 401 (CC) [21] (freedom of expression constitutive of
the dignity and autonomy of human beings; moreover, without it, the ability of citizens to make responsible
political decisions and to participate effectively in public life would be stifled); Phillips v Director of Public
Prosecutions (Witwatersrand Local Division) 2003 (3) SA 345 (CC) [23] (right to freedom of expression is
integral to democracy, to human development and to human life itself).
340
Expression 16.1–16.2
which is found at the periphery of the right’.16 The latter type of expression receives
less protection in that limitation of such forms of expression is relatively easily
justified, compared to limitations on expression at the core. Clearly, political
expression (though perhaps not all political expression) is at the core of the right.17
What is less clear is the other forms of expression at the core.18
16.2 ‘EXPRESSION’
Section 16(1) protects free expression, unlike the US First Amendment, which is
confined to ‘the freedom of speech’, a formulation that invites argument about whether
certain forms of expressive conduct count as speech or not. Restriction of the latter class
of conduct is then thought to raise no constitutional difficulty.19 The classic forms of
problem speech that are proscribed in most jurisdictions—incitement (‘fighting words’),
obscenity, slander, insult, sometimes blasphemy—are then ruled out of constitutional
consideration.
The South African formulation, as the Constitutional Court has put it, ‘expressly
protects the freedom of expression in a manner that does not warrant a narrow
reading’.20 ‘Expression’ will therefore include activities that have occasioned
definitional disputes in other jurisdictions, such as displaying posters, painting and
sculpting, dancing (even nude dancing)21 and the publication of photographs. Also
included within its scope are symbolic acts such as flag-burning (or the burning of
passbooks during the apartheid period), the wearing of certain items of clothing (such as
the red shirts worn by anti-government protestors in Thailand) and physical gestures like
salutes and raised fists. In principle, every act by which a person attempts to express
some emotion, belief or grievance should qualify as ‘expression’.22 The Constitutional
Court’s rejection of a ‘narrow reading’ of the right probably also means that
16
De Reuck v Director of Public Prosecutions (Witwatersrand Local Division) 2004 (1) SA 406 (CC) [59].
The particular form of expression in issue was pornography. See, further, para 16.5(b) below.
17
Thint Holdings (Southern Africa) (Pty) Ltd v National Director of Public Prosecutions 2009 (1) SA 141
(CC) [52]: (where our jurisprudence touches on the status of political information, it tends towards permitting
greater dissemination rather than the restriction of it). Khumalo v Holomisa (note 15 above) [18] and [22];
Mthembi-Mahanyele v Mail & Guardian Ltd 2004 (6) SA 329 (SCA) [116].
18
The structure of s 16 might suggest that the specific listing of certain forms of expression in s 16(1) implies
a higher degree of protection is afforded to the press, information and ideas, artistic creativity and academic
freedom than to forms of expression not falling into any of these categories. There certainly seems to be less
reason to limit the freedom to receive and impart information and ideas than other forms of expression, while the
importance to a democracy of the press, artists and academics has been recognised by the courts. However,
despite its superficial appeal, such an approach should not be adopted. The categories listed in s 16(1) were not
intended to describe the core of protected expression. If anything, that honour probably belongs to the expression
of political opinion, which is not listed. More importantly, content differentiation should be avoided where
possible, at least in the first stage of free-speech analysis. In principle, therefore, the specific inclusion of some
forms of expression does not single them out for greater protection than other forms of expression.
19
Chaplinksy v New Hampshire 315 US 568 (1942).
20
De Reuck (note 16 above) [48] (pornography is expression).
21
Phillips (note 15 above) [15] (prohibition of ‘entertainment’ featuring indecency, obscenity or nudity an
infringement of freedom of expression).
22
There must be some limits to the conception of expression however. Violent conduct intended to convey a
message—acts of terrorism, for example—should not be covered by the right to freedom of expression. Neither
should criminal conduct involving expression—fraud, for example. E Barendt Freedom of Speech 2 ed (2005) 79.
341
infringements of freedom of expression are not confined to direct prohibitions aimed at

interfering with expression, but also include indirect threats to expression.23
The wide, almost unlimited, conception of expression in s 16 means that
constitutional protection is accorded to many problematic forms of speech that would be
left out of constitutional consideration in other jurisdictions.
Such speech is instead treated by the courts as expression that is constitutionally
protected but has relatively little constitutional value. Pornography, for example, might
comfortably be considered to be a protected form of expression but, at the same time, as
expression that is not particularly valuable and therefore relatively easily outweighed by
the need to protect countervailing principles—such as the rights of vulnerable groups
such as children and women.24 The same could go for commercial speech, dishonest
speech, extreme speech or speech proposing a criminal transaction.
Accordingly, rather than draw lines at the stage of determining the scope (or
‘coverage’) of the right,25 lines are drawn at the stage of balancing the infringement of
the right against countervailing principles. In this analysis what matters instead is the
relative weight that is given to a particular form of expression: political speech is usually
thought to be more valuable than pornography, artistic expression is more valuable than
commercial speech.26 This weight can even vary from case to case, allowing
considerable flexibility in decision-making.
Expression clearly includes conduct that seeks to communicate. However, it is likely
that expressive conduct will be more easily subjected to limitation than speech.27
Generally speaking, the closer expression comes to action, and the further it drifts from
conveying ideas and opinions, the less protection it will receive under s 16.28 Sometimes
speech and action becomes almost indistinguishable, such as the shouting, swearing and
finger-pointing used to provoke an immediate physical response.29 There is little value
in such expressive conduct and restrictions on it are therefore easily justified.
23
An example is provided by International Society for Krishna Consciousness, Inc v Lee 505 US 672 (1992)
(general ban on solicitation in airport terminal indirectly abridges free speech rights of members of religious
community wishing to distribute literature and solicit for funds). See also Davis (note 10 above) 220.
24
Print Media South Africa v Minister of Home Affairs 2012 (6) SA 443 (CC) [56]; De Reuck (note 16 above)
(child pornography is constitutionally protected expression, but almost weightless when put in the balance
against the principles of dignity and the prevention of harm to others).
25
See F Schauer Free Speech: A Philosophical Enquiry (1982).
26
The weighting approach does not entirely avoid the need for scope-determination, however. For example, it
will still be necessary to determine whether a particular instance of expression is pornography (therefore, less
valuable) or artistic expression on an erotic subject (more valuable?). Another example: if certain forms of
extreme expression (homophobia, religious bigotry) are considered to have little value, does it make any
difference if these are uttered in a political context and that their speakers may claim the heightened protection
usually accorded to political speech?
27
This has been the US experience. The government may legitimately regulate conduct provided that it does
so without regard to the content of the expression that the conduct seeks to communicate. See United States v
O’Brien 391 US 367 (1968) (prohibition on destruction of military service certificate (‘draft card’) serves a
legitimate government interest and only incidentally prohibits the expression of anti-war protest).
28
See the discussion in De Reuck (note 16 above) [63]–[64] and [68] on the distinction between pornographic
images depicting an actual harmful reality (the sexual abuse of children) and ‘pseudophotographs’. Prohibition of
the second obviously requires more justification than the first.
29
In the USA, so-called ‘fighting words’ are not constitutionally protected: Chaplinsky v New Hampshire 315
US 568 (1942) 572 (defining fighting words as ‘those which by their very utterance inflict injury or tend to incite
an immediate breach of the peace’). On the basis of this exclusion, some commentators have argued that less
protection should be afforded to speech that approximates conduct.
342
False speech is protected in principle but ‘the constitutional protection of freedom of

expression has at best an attenuated interest in the publication of false statements’.30
This means that ‘untrue speech is more easily overridden by countervailing interests
[when balancing under the limitation clause] than true speech’.31
16.3 EXPRESSION AFFORDED SPECIFIC RECOGNITION
(a) Freedom of the press and other media

(i) ‘Press exceptionalism’
Section 16(1) protects the ‘freedom of the press and other media’. The usual rationale
for constitutional protection of press freedom is the important contribution made by the
press to one of the goals of freedom of expression in general: establishing and
maintaining an open and democratic society.32 This means that the press is both
protected by the right to freedom of expression and has duties to promote it on behalf of
the rest of society. As the Constitutional Court has explained it, ‘[t]he ability of each
citizen to be a responsible and effective member of our society depends upon the manner
in which the media carry out their constitutional mandate. . . . The media thus rely on
freedom of expression and must foster it. In this sense they are both bearers of rights and
bearers of constitutional obligations in relation to freedom of expression’.33
Authoritarian regimes routinely pay ironic homage to the importance of press
freedom to the securing of other democratic rights by attempting to monopolise the
provision of information and to stifle independent media. The apartheid state was no
exception and a multiplicity of laws regulating the media ensured that writers, editors
and publishers operated in an atmosphere of ‘insecurity and near impotence’.34 Few of
these laws remain. During the apartheid period, the courts also played a role by
developing the common law of defamation, particularly during the latter part of the
twentieth century, in a way that was extremely chilling of press freedom. The post-1994
development of the law of defamation is considered in para 16.5(c) further below.
Does the specific protection of press freedom as a component of freedom of
expression warrant giving special status to the press? For example, special status may
30
Khumalo (note 15 above) [35].
31
Hamata v Peninsula Technikon Internal Disciplinary Committee 2000 (4) SA 621 (C) [32]. In this case a
disciplinary committee found that the applicant deliberately made false allegations in a newspaper article
concerning prostitution on campus and the failure of the Technikon authorities to do anything about it. The
applicant was expelled from the campus and internal appeals proved unsuccessful. None of the disciplinary
committees explicitly took the importance of the applicant’s right to freedom of expression into account. The
High Court held that the constitutional rights of the applicant were in all the circumstances outweighed by the
Technikon’s right to protect its reputation. The approach seems wrong. The court should have insisted on a proper
justification for the drastic invasion of the applicant’s free speech right, and conducted an enquiry into whether
less infringing alternatives were considered by the Technikon.
32
See Black J in New York Times Co v United States 403 US 713 (1971) (the ‘Pentagon papers’ case): ‘[The
constitutional guarantee of a free press] gave the free press the protection it must have to fulfil its essential role in
our democracy. . . . The press was protected so that it could bare the secrets of Government and inform the
people’.
33
34
L Thompson Politics in the Republic of South Africa (1966) 129, quoted by Dugard Human Rights 181. The
late-apartheid catalogue of anti-press measures (their apogee being the 1989 Media Emergency Regulations
prohibiting publication of any visual representation of ‘unrest’ or ‘security action’) is surveyed in K Stuart The
Newspaperman’s Guide to the Law 5 ed (1990).
343
give the press and media greater protection than everyone else against subpoenas
compelling disclosure of their sources of information, or greater protection against prior
restraints such as interdicts aimed at stopping a particular publication and more
extensive access to information held by the state and private persons.
These questions have been debated in the United States as an issue of interpretation of
the First Amendment, which provides that ‘Congress shall make no law . . . abridging
the freedom of speech, or of the press’. Is there any significance to be attached to the
singling out of press freedom, or are ‘freedom of speech’ and ‘freedom of the press’
merely synonyms?35 The Supreme Court has on the whole taken the view that the press
is not entitled to any special rights or protections under the First Amendment.36 Chief
Justice Burger, in a concurring opinion in First National Bank of Boston v Belloti,37 held
that the specific reference to the press in the First Amendment does not give the press
more rights than other speakers. This was because, first, there was no evidence that the
framers intended to give a privileged position to the press. Secondly, it was
unacceptable to single out and confer a special status on a limited group of people,
particularly when that group is difficult to define.38
In South Africa, in Holomisa v Argus Newspapers,39 Cameron J recognised the
special role of the press in a constitutional democracy, but stated that this does not mean
that journalists must enjoy special constitutional immunity beyond that accorded to
ordinary citizens. Cameron J described the idea of ‘press exceptionalism’ not only as
unconvincing but also as dangerous.40
Despite the absence of a heightened form of protection for the media, the important
role played by a free press in a democracy has been recognised in numerous decisions.
The free flow of information to and between citizens is only possible if there is a free
press to facilitate this.41
(ii) Compelled disclosure of journalists’ sources

‘Protection of journalistic sources’, the European Court of Human Rights has held, ‘is
one of the basic conditions for press freedom’.42 This is because, without such
protection, sources may be deterred from assisting the press, thereby undermining the
public-watchdog role of the press and its ability to provide accurate and reliable
information.43
35
See E Chemerinsky Constitutional Law (2001) 1122 for an overview of the debate.
36
Ibid.
37
First National Bank of Boston v Belloti 435 US 765 (1978).
38
Difficulties of definition have been exacerbated by technological development and the Internet, which allow
anyone with access to networked server space or to social media sites to become a reporter and a publisher.
39
Holomisa v Argus Newspapers 1996 (2) SA 588 (W).
40
Ibid 855–856. Cameron J referred to the following argument of Ronald Dworkin in A Matter of Principle
(1985) 386–387: ‘But if free speech is justified on principle, then it would be outrageous to suppose that
journalists should have special protection not available to others, because that would claim that they are, as
individuals, more important or worthier of more concern than others.’ Cameron J’s dictum was cited with
approval in Midi Television (Pty) Ltd t/a E–TV v Director of Public Prosecutions (Western Cape) 2007 (5) SA
540 (SCA) [6]. See also Johncom Media Investments Ltd v M 2009 (4) SA 7 (CC) [28].
41
Midi Television (note 40 above) [6]; Khumalo (note 15 above) [22]–[24]; South African Broadcasting Corp
Ltd v National Director of Public Prosecutions 2007 (1) SA 523 (CC) [24]; Print Media (note 24 above) [54].
42
Goodwin v United Kingdom (2002) 35 EHRR 18 [39].
43
Ibid.
344
Expression 16.3
South African law lacks any specific protection for journalists. Instead, there are a
number of mechanisms for compelling the disclosure of sources that have to be
interpreted and applied with the right to freedom of expression in mind. The principal
mechanism for compelling journalists to disclose their sources is s 205 of the Criminal
Procedure Act 51 of 1977. The section permits the examination by a magistrate of
persons who have information relating to a criminal offence.44 In terms of s 189 of the
Act, all questions put to a witness at a s 205 examination must be answered unless the
witness has a ‘just excuse’ for failing to answer.45 In S v Cornelissen,46 a decision
pre-dating the commencement of the interim Constitution, a journalist refused to answer
questions about the identity of someone who had allegedly shouted the slogan ‘Kill the
farmer, kill the Boer!’ at a meeting attended and reported on by the journalist. The court
held that, although there was no legal privilege47 in terms of which journalists were
immune from being compelled to give evidence about information they had obtained in
the course of their work, the journalist in this case nevertheless had a ‘just excuse’ for
refusing to testify. In determining whether there was a just excuse, the interests of the
community had to be weighed up against the potential public prejudice caused by
compelling the disclosure of the evidence. While the community had an interest in the
successful prosecution of crime, journalists had an interest in the protection of the
anonymity of their informants. Should newspapers be unable to protect this anonymity,
their ability to report on events and issues of public importance would be impeded.
The decision on the constitutionality of s 205 by the Constitutional Court in Nel v Le
Roux NO48 suggests that the approach of the Supreme Court in Cornelissen continues to
have application. The Constitutional Court did not invalidate s 205. Instead, it held:
If the answer to any question put to an examinee would infringe of threaten to infringe any
of the examinee’s [fundamental] rights, this would constitute a ‘just excuse’ for purposes of
s 189(1) for refusing to answer the question unless the s 189(1) compulsion to answer the
question would, in the circumstances, constitute a limitation on such right which is justified
in terms of [the limitation clause] of the Constitution.49
44
See, for example, Lawrence v Verhoef NO 1993 (2) SA 328 (W) (journalist subpoenaed under s 205 to give
evidence relating to an article about the disappearance of a witness in the Winnie Mandela kidnapping trial;
subpoena quashed on administrative law grounds); S v Matisonn 1981 (3) SA 302 (A) (journalist subpoenaed to
give evidence revealing identity of informant or source of information pertaining to newspaper article headed
‘Rightwing churchman operates unauthorised bank account in US’).
45
Section 189(1) of the Criminal Procedure Act: if ‘any person . . . required to give evidence at [criminal]
proceedings . . . refuses to answer any question put to him or refuses or fails to produce any book, paper or
document required to be produced by him, the court may in a summary manner enquire into such refusal or
failure and, unless the person so refusing or failing has a just excuse for his refusal or failure, sentence him to
imprisonment . . .’. Section 205(4) provides that a sentence of imprisonment may only be imposed in such cases
if the presiding officer is of the opinion that the furnishing of the information is necessary for the administration
of justice or the maintenance of law and order. On the interpretation of this provision see S v Cornelissen 1994 (2)
SACR 41 (W).
46
Ibid.
47
The concept of legal privilege refers to a very limited category of excuses for not answering questions.
There is a doctrine of common law that entitles the executive to withhold information on the ground that the
public interest would be jeopardised by disclosure. The privilege was codified in s 66 of the Internal Security Act
74 of 1992, but this provision has subsequently been repealed. Outside the context of state security, the courts
have been slow to extend a legal privilege to refuse the disclosure of information beyond the obvious case of
legal-practitioner privilege. See Smith v Van Niekerk 1976 (4) SA 293 (A) (priest-penitent privilege not part of
SA law); JD van der Vyver ‘Die Swygreg van Kerkleraars’ (1977) 3 THRHR 217.
48
Nel v Le Roux NO 1996 (3) SA 562 (CC).
49
Ibid [7].
345
This means that, when a journalist refuses to answer a question put at an s 205 enquiry,
the presiding officer must take into account the fact that compelling the giving of
evidence may infringe the right to press freedom. A distinction must be made between
the disclosure of sources and other types of evidence. The press cannot operate freely
and effectively if it lives under the shadow of legal compulsion to reveal its sources of
information. The press may therefore refuse to disclose the identity of informants,
unless there is no other way in which the state can secure evidence against an accused,
the alleged crime is of a serious nature, and the potential for further disclosures to the
press by persons in a similar position to the source is limited.
The situation is quite different with the production of other forms of evidence,
such as press photos, videotapes and the like. Here the interest of the press is less
distinct. It amounts to a fear that reporters or photographers may be harassed or
attacked if it becomes known that they co-operate with the police. It is unlikely that
violent mobs at a crime scene are capable of making such fine distinctions. The
legitimacy of compelling the production of such forms of evidence has in any event
been recognised in many democracies, all of which have far less of a problem with
crime than South Africa.50
The Commissions Act 8 of 1947 permits the subpoena of witnesses to appear
before commissions of inquiry. Section 6 of the Act makes it an offence for someone
who has been summoned to fail to attend or to answer questions ‘without sufficient
cause’. An exercise of these powers to summon a journalist was challenged in
Munusamy v Hefer NO.51 It was argued that the constitutional protection of free
expression required the Commissioner not to issue a subpoena against a journalist
except as a matter of last resort (ie, after hearing all the other evidence first and only
summoning the journalist if her evidence remained necessary to the inquiry).
According to Malherbe JP, the question whether the right to freedom of expression
included protection of journalists’ sources was not in issue in the case. There were
many questions that could be put to the journalist that could be answered without
divulging the names of sources.52 There was no violation of the journalist’s freedom
of expression in the failure to leave her appearance before the commission to the
last.53
Bosasa Operation (Pty) Ltd v Basson54 deals with the question whether discovery
procedures in a defamation action can be used to obtain information about the source
of an allegedly defamatory publication in the media. Following the publication in the
Mail & Guardian newspaper of a story alleging corruption by a company providing
various services to prisons, the company had sued for defamation. After the
50
See D Currie The Constitution of the Federal Republic of Germany (1994) 227; P Hogg Constitutional Law
of Canada 3 ed (1992) 968; G Gunther Constitutional Law 12 ed (1991) 1470.
51
Munusamy v Hefer NO 2004 (5) SA 112 (O).
52
Presumably, a journalist’s refusal to answer a particular question because the answer would disclose the
identity of a source could be justified as having ‘sufficient cause’ if this phrase is interpreted along the lines of the
gloss placed on ‘just excuse’ in Nel (note 48 above).
53
The basis of the applicant’s argument was the decision of the Appeals Chamber of the International Criminal
Court for the former Yugoslavia in Prosecutor v Brdjanin and Tali (2003) 42 ILM 130, which established a
two-pronged test for the summoning of journalists. The evidence sought should be of direct and important value
in determining a core issue in the case. Secondly, the evidence sought should not be reasonably obtainable
elsewhere. On this test, the High Court held that the evidence of Munusamy was the obvious place for the
Commission to start its enquiry. Note 51 above 123B–D.
54
Bosasa Operation (Pty) Ltd v Basson 2013 (2) SA 570 (GSJ).
346
Expression 16.3
pleadings had closed the plaintiff filed notices requiring discovery of documents and
objected when they were provided with certain documents in which the names of the
sources on which the newspaper had relied for the story were redacted. The plaintiff
accordingly sought to compel the defendants to reveal the names of their reliable
sources in compliance with the duty of discovery and the duty to provide further and
better particulars on request in terms of the rules of court. The defendant opposed
the applications inter alia on the basis that, if they were to be compelled to reveal
the sources of the story, this would infringe the right to freedom of the press. The
newspaper had, it said, given undertakings to its sources that their identity would not
be revealed.
The High Court embarked on a survey of the treatment of the issue of compulsion
to reveal journalists’ sources in comparable jurisdictions. Generally, the approach
taken is to accord the protection of journalistic sources the status of a constitutional
principle stemming from the right to press freedom. Because of the potentially
chilling effect that a judicial order of source disclosure has on the exercise of that
freedom, such an order can only be justified for compelling, overriding reasons of
the public interest.55 Such an overriding reason might be provided by the right to a
fair civil trial, the protection of which underlies the rules of discovery. However, in
order to do so, the plaintiff must demonstrate the relevance of the identity of
defendants’ sources. In this matter the court held, the identity of the courier was not
relevant:
The defendants deny that the article is defamatory of the plaintiff. They then raise several
defences in justification of writing the article. The plaintiff thus only has to prove that the
article is defamatory. There is no onus whatsoever on the plaintiff to rebut the defences
raised by the defendants in order for it to succeed with its action. The defendants, in raising
these defences as they did, nailed their colours to the mast. In the forthcoming trial, if they
are unsuccessful with their defences, the plaintiff will succeed with its claim against the
defendants. Those then are the issues: the defamatory nature of the article, which the
plaintiff has to prove, and then the defences which the defendant must prove to escape
liability, once the defamatory nature of the article has been established. The identity of the
sources, in my view, is irrelevant between the parties.56
It was, accordingly, held to be unnecessary for the plaintiff to know the identity of the
sources of the defamatory article and, in the circumstances, the plaintiff could not allege
any harm to its interests that would outweigh the principle of confidentiality.57
(iii) The regulation of broadcasting

The regulation of broadcasting is a complex and specialised field of public law. Section
192 of the Constitution provides that ‘national legislation must establish an independent
authority to regulate broadcasting in the public interest, and to ensure fairness and a
diversity of views broadly representing South African society’. The Independent
Broadcasting Authority (IBA) was established in terms of the Independent Broadcasting
Act 153 of 1993. In 2000, the functions of this authority and those of the South African
Telecommunications Regulatory Authority (SATRA) were merged and are currently
55
Goodwin (note 42 above) [39]; cited in Bosasa (note 54 above) [29].
56
Ibid [39].
57
Ibid [54].
347
performed by the Independent Communications Authority of South Africa (ICASA), the

independent regulatory authority envisaged by s 192.58
(iv) Broadcasting of and access to court proceedings by the media

The Constitutional Court’s decisions in SABC v NDPP59 and Independent Newspapers60
establish a constitutional principle of open justice that stems from the right of freedom
and expression and the right to a public trial. The principle has subsequently been put to
use in several cases in which the media has sought permission to broadcast or report
about court proceedings.
In Independent Newspapers the media sought access to an unredacted version of
certain parts of the founding affidavit in a high-profile case involving disciplinary
proceedings against Mr Billy Masetlha, the former Director-General of the National
Intelligence Agency, South Africa’s ‘internal’ intelligence service.61 Masetlha had been
dismissed by President Mbeki following a finding of the Inspector-General of
Intelligence that certain covert surveillance operations had been unauthorised and
unlawful.62 He then sought reinstatement in High Court proceedings. He lost, and
subsequently applied for leave to appeal to the Constitutional Court.
The Constitutional Court had, as an interim measure, directed that certain documents
in the record placed before it were not to be made public. Before the hearing of
Masethla’s application a newspaper brought an application to the court for access to
these materials. This was resisted by the government, on the basis that the materials
were restricted by their secrecy classification and because they concerned the activities
of the NIA.
According to the court, the claim to disclosure was based on ‘a cluster or, if you will,
umbrella of related constitutional rights which include, in particular, freedom of
expression and the right to a public trial, and which may be termed the right to open
justice.’63 The right to open justice, further, formed part of a ‘systemic requirement of
openness in our society . . . [flowing] from the very founding values of our Constitution,
which enjoin our society to establish democratic government under the sway of
constitutional supremacy and the rule of law in order, amongst other things, to ensure
transparency, accountability and responsiveness in the way courts and all organs of state
function’.64
The right entitles the media to gain access to, to observe and to report on the
administration of justice and the right to have access to papers and written arguments
58
ICASA was created by the Independent Communications Authority Act 13 of 2000. In addition to
broadcasting, the authority regulates telecommunications in the public interest and to achieve the objectives
contemplated in the legislation regulating telecommunication, notably the Telecommunications Act 103 of 1996.
59
South African Broadcasting Corp Ltd v National Director of Public Prosecutions 2007 (1) SA 523 (CC).
60
Independent Newspapers (Pty) Ltd v Minister for Intelligence Services: In re Masetlha v President of the
Republic of South Africa 2008 (5) SA 31 (CC) [39].
61
No access was given to the so-called ‘in camera’ affidavit which described certain activities of the NIA and
had several annexures, some of which were marked with a ‘secret’ or ‘confidential’ classification. Independent
Newspapers (note 60 above) [3].
62
Office of the Inspector-General of Intelligence ‘Executive Summary of the Final Report on the Findings of
an Investigation into the Legality of the Surveillance Operations carried out by the NIA on Mr S Macozoma’ (23
March 2006), available at <http://www.info.gov.za>.
63
Independent Newspapers (note 60 above) [39].
64
Ibid [40].
348
Expression 16.3
that are an integral part of court proceedings subject to such limitations as may be
warranted on a case-by-case basis in order to ensure a fair trial.65
Previously, in SABC v NDPP,66 the Constitutional Court had set out the implications
of the open justice principle for the broadcasting of court proceedings. The SABC
sought leave to broadcast on both radio and television an appeal hearing before the
Supreme Court of Appeal. The appeal had been brought by Schabir Shaik against a
conviction by the Durban High Court on several counts relating to corruption, in relation
to payments made to the then Deputy President Zuma. The SABC sought permission
from the court to broadcast the appeal live on both radio and television. The proceedings
would also be recorded for delayed broadcasts in the form of an edited highlights
package. The Supreme Court of Appeal declined to give permission.
On appeal to the Constitutional Court, it was held that the issue required the
balancing of the rights and obligations of the media relating to freedom of expression on
the one hand, against the right of the appellants to a fair criminal trial. The case
concerned the right of the public to have insight into the workings of the courts in
accordance with the principles of open justice, and the obligation of the courts to ensure
that the proceedings before them are fair. Notably, the court found no express right of
the media to broadcast court proceedings live.
The majority of the court held that the principles of open justice had to give way to
the right to a fair trial. The presence of the media at the appeal hearing in the way
proposed by them would, the court held, inhibit the presentation of legal arguments. The
presentation of the media would also impact on the right of Deputy President Zuma to a
fair trial: there was a risk that witnesses would be reluctant to testify. In addition, the
evidence about Deputy President Zuma that would be relied on in the Shaik appeal may
have created an impression of his guilt or innocence, even before his trial had
commenced. The court therefore held that the SABC was not entitled to the relief it
sought.
The open justice principle establishes a ‘default position’ of openness.67 The right can
however be limited by legislation or common law limiting open court hearings when fair
trial rights or dignity or the rights of a child or rights of other vulnerable groups are
implicated.68 In this regard,
[T]he right to an open court hearing and the right to report on it do not automatically mean
that court proceedings must necessarily be open in all circumstances. There may be
instances where the interests of justice in a court hearing dictate that oral evidence of a
minor or of certain classes of rape survivors or confidential material related to police crime
investigation methods or to national security be heard in camera. In each case, the court will
have to weigh the competing rights or interests carefully with the view to ensuring that the
limitation it places on open justice is properly tailored and proportionate to the end it seeks
to attain. In the end, the contours of our constitutional rights are shaped by the justifiable
limitation that the context presents and the law permits.69
65
Ibid [41].
66
SABC v NDPP (note 59 above).
67
Independent Newspapers (note 60 above) [43].
68
Ibid [44]. The court referred to s 153(1) of the Criminal Procedure Act 51 of 1977 and s 5(2) of the
Magistrates’ Courts Act 32 of 1944, which permit proceedings to be closed in the interests of justice, and s 56 of
the Children’s Act 38 of 2005, which generally requires proceedings of a children’s court to be closed.
69
349
As to the onus of establishing the justifiability of restricting openness, in accordance

with the general principle pertaining to limitations of rights, ‘a party that contends for a
restriction of a right protected in the Bill of Rights must place before the court material
which justifies the limitation sought’.70
(v) Restrictions on reporting of divorce proceedings

Section 12 of the Divorce Act 70 of 1979 contained a broad criminal prohibition on the
publication of ‘any particulars of a divorce action or any information that comes to light
in the course of such an action’. There were exceptions for publication of the names of
the parties to a divorce action, the fact that an action between the parties was pending
and the judgment or order of the court. The section was the basis for an interim interdict
preventing publication by the Sunday Times of a story based on allegations made in
papers filed in an action challenging the paternity of the minor child of the former
parties to a divorce action. In subsequent proceedings, the section was declared invalid
by the High Court as an infringement of freedom of expression.71 The Constitutional
Court confirmed the declaration of invalidity in Johncom Media Investments Ltd v M.72
The prohibition limited the right of the media to report on matters of public interest
arising from divorce proceedings and the concomitant right of the public to receive
those reports.73 It was also contrary to the open court principle.74 Its impact on these
rights was disproportionate to the objectives for the limitation, protecting the privacy
and dignity of people involved in divorce proceedings, in particular children.75
The order of invalidity of s 16 would have resulted in there being, the possibility of
remedies for defamation or breach of privacy aside, nothing to prevent the publication of
any information arising from divorce court proceedings. This was not desirable and the
court accordingly developed the following rule: ‘Subject to authorisation granted by a
court in exceptional circumstances, the publication of the identity of, and any
information that may reveal the identity of, any party or child in any divorce proceeding
before any court is prohibited’.76
As a result of the Constitutional Court’s order in Johncom Media Investments77 it is
contempt of court to publish the identity of, and any information that may reveal the
identity of, any party or child in any divorce proceeding before any court.
(b) Freedom to receive and impart information and ideas

Section 16(1)(b) has no counterpart in the interim Constitution. The specific
enumeration of a right to receive information and ideas removes any doubt as to whether
the right to freedom of expression aims to protect only speakers or both speakers and
listeners.78
70
Ibid [46]. On the nature of the evidentiary burden in limitation proceedings, see para 7.1(b) in Chapter 7
above.
71
Mandel v Johncom Media Ltd [2008] ZAGPHC 36.
72
2009 (4) SA 7 (CC).
73
Ibid [28].
74
Ibid [29].
75
Ibid [29].
76
The basis for the order is unclear, the court making reference to s 172(1).
77
2009 (4) SA 7 (CC).
78
Section 16(1)(b) prohibits interference with the freedom to receive and impart information and ideas and is
not a right to information. The latter is provided for in s 32.
350
Expression 16.3
In Case v Minister of Safety and Security,79 a majority of the Constitutional Court

expressed some doubt as to whether the right to freedom of expression in the interim
Constitution included the reception of ideas by those to whom they are communicated or
presented.80 The majority found the prohibition of possession of pornography contained
in the Indecent and Obscene Photographic Matter Act 37 of 1967 to be inconsistent with
the right to privacy. However, Mokgoro J persuasively argued that the provisions of the
Act violated the right to freedom of expression. She held that the right to freedom of
expression embraced the right to ‘receive, hold and consume expressions transmitted by
others’.81 In her view therefore, the right to freedom of expression protected both
speakers and recipients.
Section 16(1)(b) provides for the right to receive ‘information and ideas’ as opposed
to the broader concept of ‘expression’ in the general right. This could arguably make the
right more limited in its scope. However, as long as the expression can be considered to
convey information or ideas, its receipt is protected without reference to the content of
the expression. In De Reuck the Constitutional Court held that the possession of child
pornography was protected by s 16(1)(b) and that a law prohibiting possession was a
limitation of the right. The right applied ‘not only to ‘‘information’’ or ‘‘ideas’’ that are
favourably received or regarded as inoffensive or as a matter of indifference, but also to
those that offend, shock or disturb’.82
(c) Freedom of artistic creativity

The need for protection of artistic creativity is largely self-explanatory. Artists are
sometimes responsible for radical criticism of the way society functions. As their work
may upset sensitive people, governments have been tempted to control the production
and exhibition of art.
It should be noted however that no distinction may be made, for purposes of the right,
between ‘art’ as a product, and the process of creating art. All the activities associated
with and necessary for the artist to be creative will therefore be constitutionally
protected. For purposes of s 16, the term ‘art’ should also be broadly defined to include,
for example, the making of films and music.83
(d) Academic freedom and freedom of scientific research

The academic freedom right has been moved from its place in the interim Constitution,
where it was part of the right to freedom of religion, belief and opinion.84 This change is
insignificant. More important is the fact that the 1996 Constitution’s formulation of the
79
Case v Minister of Safety and Security 1996 (3) SA 617 (CC).
80
Ibid [92] (Didcott J, with Chaskalson P, Mahomed DP, Ackermann J, Kriegler J, Ngoepe AJ and O’Regan J
concurring).
81
Ibid [25].
82
De Reuck (note 16 above) [49], quoting Handyside v United Kingdom (1976) 1 EHRR 737, 754.
83
The Constitutional Court even appears to consider artistic creativity to include the production of child
pornography: De Reuck (note 16 above) [48]. Somewhat more conventionally, Phillips (note 15 above) [48]
holds that prohibition of ‘entertainment’ featuring indecency, obscenity or nudity is an infringement of the right
to artistic creativity since the prohibition hits dramatic performances including plays and concerts irrespective of
whether they represent serious works of art or the communication of thoughts and ideas essential for positive
social development.
84
Section 14 of the interim Constitution: ‘Every person shall have the right to freedom of conscience, religion,
thought, belief and opinion, which shall include academic freedom in institutions of higher learning.’
351
right is broader than its equivalent in the interim Constitution. The right no longer
applies only to ‘institutions of higher learning’. In principle, any academic enterprise is
now protected.
At the core of the right to academic freedom is the right of the individual to do
research, to publish and to disseminate learning through teaching, without government
interference. The right to academic freedom vests in individual academics and not the
university. In fact, a university’s decision-making bodies, such as its Council or Senate,
may be as prone to infringing academic freedom as organs of state. In practical terms,
however, academic freedom would be a hollow ideal without institutions such as
universities. One of the reasons for establishing universities is, after all, to realise
academic freedom. If the state could prescribe to universities that no research critical of
the government may be funded by the university or that no researchers critical of the
government may be appointed, academic freedom would be left stranded.85 A right to a
degree of institutional autonomy, at least to the extent necessary to realise academic
freedom, may therefore be derived from s 16.
Since it is a freedom, s 16 does not confer a right to state financial support for specific
research projects. However, the German Constitutional Court has held that, given the
state’s practical monopoly over financial resources to fund research, the right to
academic freedom involves more than simply a duty of non-interference in academic
activity. The right implies a positive duty of the state to promote research and teaching
by providing functional academic and scientific institutions, or at least the financial and
organisational back-up needed to exercise the right to academic freedom and scientific
research.86
(e) Free speech in legislatures

Though not part of the Bill of Rights, the Constitution grants members of the National
Assembly, the National Council of Provinces (NCOP) and Cabinet members special
privileges and immunities for their activities in the Assembly or the NCOP or any of
their committees.87 Subject to the rules and orders of the Assembly and the NCOP, they
have an absolute right to freedom of speech. They are not liable to civil and criminal
proceedings, arrest, imprisonment or damages for anything they have said in, produced
before or submitted to the Assembly, the NCOP or any of their committees. They are
similarly not liable for anything revealed as a result of their activities.
85
Currently, the area in which freedom of scientific research clashes most frequently with government
regulation is in the field of human biotechnology. Here, regulation (such as bans on stem-cell research, human
cloning or germ-line engineering) is motivated less by political than by ethical concerns, concerns that are
frequently at odds with the impetus of scientific discovery. See, for example, DW Jordaan ‘Science versus
Anti-science: the Law on Pre-Embryo Experimentation’ (2007) 124 SALJ 618 (restrictions imposed by South
African Medical Research Council’s ethical guidelines on research using human embryos infringe the freedom of
scientific research).
86
See Currie (note 50 above) 235; E Malherbe ‘’n Handves van Menseregte en Onderwys’ (1993) 4 TSAR 686,
699. On appointment of staff, see J de Groof ‘The Freedom of Teachers: Some Notes’ in J de Groof & E Malherbe
(eds) Human Rights in South African Education (1997) 295.
87
See s 58(2) of the Constitution (National Assembly) and s 71(2) (NCOP). Further privileges and immunities
may be granted by national legislation. The Powers and Privileges of Parliament Act 91 of 1963 is still the only
relevant statute. The same special privileges and immunities apply in respect of speech in the provincial
legislatures (s 117). Nothing is said in the Constitution about Municipal Councils, whose councillors, it seems,
will therefore have to rely on their s 16 right to freedom of expression. Section 28 of the Local Government:
Municipal Structures Act 117 of 1998 requires provincial legislation to provide for privileges and immunities for
councillors, including freedom of expression.
352
In De Lille v Speaker of the National Assembly,88 the Cape High Court stated that the
freedom of speech conferred by s 58 is an absolute freedom in the sense that it is subject
only to the rules and orders of the Assembly. The Assembly violated this ‘special’ free
speech right by summarily suspending a Member of Parliament. In addition, the
Member’s s 16 right to freedom of expression was infringed. On the issue of limiting the
latter right, the court held:
It can never be reasonably justifiable in a democratic society to impose such suspension
which will deprive innocent members of the electorate of their representation in Parliament
when any such punitive purpose served by the suspension could equally be served by other
punishments which do not compromise democratic representation.89
On appeal, the decision of the Cape High Court was confirmed on the narrower ground
that there was no legal authority permitting the Assembly to punish a member for
making a speech by suspending the member from the proceedings of the Assembly.90
A similar issue at a local government level was addressed by the Constitutional
Court in Dikoko v Mokhatla.91 The case concerned immunity afforded to councillors
from civil liability for defamation, and the extent to which the privilege afforded to
municipal councillors performing their functions extended outside of Council
meetings. The alleged defamatory statements in this case were made before a
Provincial Standing Committee, and not in a local Council meeting.
In determining whether the privilege afforded to councillors applies to both their
legislative and executive functions, the court considered the purpose of privilege in a
constitutional democracy:
Immunising the conduct of members from criminal and civil liability during council
deliberations is a bulwark of democracy. It promotes freedom of speech and expression. It
encourages democracy and full and effective deliberation. It removes the fear of
repercussion for what is said. This advances effective democratic government. There is
therefore much to be said for a conclusion that, if a councillor participates in the genuine and
legitimate functions or business of council, whether inside or outside of council, the
privilege afforded under s 28 ought to extend to her or him.92
The court found, however, that the facts of the case did not require it to determine that
question, because the statements made before the Standing Committee were held not to
constitute the legitimate business of the Council.93 Having not been protected by
privilege, therefore, the applicant was found to be liable for defamation.
16.4 EXPRESSION SPECIFICALLY EXCLUDED
(a) Application of the hate speech qualification

Section 16(2) is known colloquially as the ‘hate speech’ qualification, though only one
of its components encompasses hate speech. The subsection qualifies the scope of the
s 16(1) right to freedom of expression by providing that the right ‘does not extend to’
88
89
Ibid [38].
90
Speaker of the National Assembly v De Lille 1999 (4) SA 863 (SCA).
91
Dikoko v Mokhatla 2006 (6) SA 235 (CC).
92
Ibid [39].
93
Ibid [40].
353
three listed categories of expression. Legal restrictions of speech falling into one of the
categories are not limitations of freedom of expression and require no justification.
In Islamic Unity Convention v Independent Broadcasting Authority, the Constitu-
tional Court considered the constitutionality of a provision of the Code of Conduct for
Broadcasting Services that prohibited broadcasting of material ‘which is . . . likely to
prejudice . . . relations between sections of the population’. Was this a prohibition of
expression of the type referred to in s 16(2)? According to the Constitutional Court the
words ‘[t]he right in subsection (1) does not extend to . . .’ imply that:
the categories of expression enumerated in section 16(2) are not to be regarded as
constitutionally protected speech. Section 16(2) therefore defines the boundaries beyond
which the right to freedom of expression does not extend. In that sense, the subsection is
definitional. Implicit in its provisions is an acknowledgment that certain expression does not
deserve constitutional protection because, among other things, it has the potential to impinge
adversely on the dignity of others and cause harm. Our Constitution is founded on the
principles of dignity, equal worth and freedom, and these objectives should be given effect
to.94
Where the scope of regulation of expression goes beyond the three categories of
expression in s 16(2) ‘it encroaches on the terrain of protected expression and can do so
only if such regulation meets the justification criteria in section 36(1) of the
Constitution’.95 The prohibition in the Broadcasting Code clearly went beyond the
categories of expression enumerated in s 16(2): ‘It does not, for instance, require that the
material prohibited should amount to advocacy of hatred, least of all hatred based on
race, ethnicity, gender or religion, nor that it should have any potential to cause harm’.96
It therefore was an infringement of the freedom of expression that could not be justified
under the limitations clause because of its unnecessary overbreadth: ‘the very real need
to protect dignity, equality and the development of national unity could . . . be
adequately served by the enactment of a provision which is appropriately tailored and
more narrowly focused’.97
(b) Propaganda for war

The formulation of this exception derives from the International Covenant on Civil and
Political Rights, 1966 (ICCPR).98 The word ‘war’ refers to acts of external aggression,
and not violent internal resistance to the government of the day. The latter may be
covered by the term ‘incitement of imminent violence’.99 It is unclear whether
‘propaganda’ is confined to statements inciting a war or includes favourable reports on a
war already commenced.100
94
Islamic Unity Convention (note 1 above) [10].
95
Ibid [12].
96
Ibid [13].
97
Ibid [29].
98
Article 20(1) of the ICCPR: ‘Any propaganda for war shall be prohibited by law.’ This requires an active
prohibition of war propaganda (with a sanction such as a criminal penalty), rather than, as in s 16(2), the mere
exclusion of such expression from the scope of the right to freedom of speech: see UN Human Rights Committee
General Comment 11: Prohibition of propaganda for war and inciting national, racial or religious hatred (Art 20)
(1994). The General Comment states the opinion that ‘war’ is restricted to wars of aggression contrary to the
Charter of the United Nations, and not wars of self-defence. The same logic probably applies to propaganda in
favour of a ‘state of national defence’, contemplated by s 203 of the Constitution.
99
General Comment (note 98 above).
100
Joseph et al (note 4 above) 411.
354
Expression 16.4
The Films and Publications Act 65 of 1996 prohibits the distribution and exhibition of
films and publications containing propaganda for war.101
(c) Incitement of imminent violence

This part of s 16(2) is not found in the ICCPR but has its origins in the US First
Amendment jurisprudence, which treats ‘incitement of illegal activity’ as a form of
speech that is not protected by the right to free speech.102 When does a call to illegality
become ‘incitement’? Over the course of a century, the US Supreme Court has used a
number of different approaches to this issue.103 Early in the twentieth century, the court
laid down the ‘clear and present danger test’ to determine the legitimacy of restrictions
on freedom of speech: ‘[t]he question . . . is whether the words used are used in such
circumstances and are of such a nature as to create a clear and present danger that they
will bring about the substantive evils that Congress has a right to protect’.104 This test
was later substituted by a ‘reasonableness’ test that allowed the government to punish
advocacy of illegality when it was reasonable to do so. During the McCarthy era, the
clear and present danger test was reformulated as a risk formula: whether speech was
protected depended on the gravity of the illegal activity compared with the likelihood of
it occurring.105 But the Supreme Court’s most speech-protecting approach is
exemplified by Brandenburg v Ohio, holding that state laws may not criminalise the
advocacy of the use of force or civil disobedience, except where such advocacy ‘is
directed to inciting or producing imminent lawless action and is likely to incite or
produce such action’.106 None of the earlier tests had contained an intent requirement or
a clearly stated requirement of a likelihood of imminent harm.107 The court went on to
hold that ‘the mere abstract teaching of the moral propriety or even moral necessity for
a resort to violence’ may not be restricted. What is required is speech ‘preparing a group
for violent action and steeling it to such action’.108
The South African provision, unlike the Brandenburg test, does not require the
incitement to be ‘likely’ to lead to violence. However, it will be practically impossible to
determine whether a particular expression constitutes incitement of imminent violence
without having regard to the possible effects it may have on its audience. The context
within which such a statement is made is of course all-important. This is why the
Supreme Court recognised in Brandenburg that the mere abstract teaching of the
necessity to resort to violence cannot constitute incitement to imminent violence.
101
Sections 16(2)(b) and (4)(a), 18(3): films and publications containing propaganda for war must be
classified as ‘refused classification’. A refused classification amounts to a ban on distribution and exhibition of
the material. See s 24A(2) (offence to distribute and exhibit ‘refused classification’ material, subject to maximum
sentence of five years imprisonment). These provisions are not affected by the court’s order in Print Media (note
24 above) [56].
102
Chemerinsky (note 35 above) 969–991.
103
Ibid 970.
104
Schenck v US 249 US 47 (1919).
105
Chemerinsky (note 35 above) 970; Dennis v US 341 US 494 (1951).
106
Brandenburg v Ohio 395 US 444 (1969). See also Collin v Smith 439 US 916 (1978) (courts invalidated
ordinances which prohibited Nazis from marching in Jewish area); Texas v Johnson 491 US 397 (1989). Note that
the Brandenburg test is wider than the s 16(2) formulation in that it encompasses speech producing a ‘lawless’
(and not necessarily a violent) result: IM Rautenbach ‘Haatspraak en die Reg op Vryheid van Uitdrukking in Suid
Afrika’ 2007 TSAR 551, 553.
107
Chemerinsky (note 35 above) 990.
108
Brandenburg (note 106 above) 448.
355
Section 17 of the Riotous Assemblies Act 17 of 1956 provides that a person is

deemed to commit the common-law crime of incitement to public violence if ‘he has
acted or conducted himself in such a manner, or has spoken or published such words,
that it might reasonably be expected that the natural and probable consequences of his
act, conduct, speech or publication would, under the circumstances, be the commission
of public violence by members of the public generally or by persons in whose presence
the act or conduct took place or to whom the speech or publication was addressed’.
Besides its controversial history,109 there are two reasons why this provision is
unconstitutional and therefore incapable of giving effect to s 16(2)(b). The first is that it
envisages that the ‘public generally’ may be incited. This is much broader than an
incitement to imminent violence, at least as it is understood in the USA. The second is
that the requirement of intention (dolus) is removed by the provision. It is unlikely that
s 16(2)(b) can be interpreted to sanction the criminalisation of speech in the absence of
intent. The removal of the ordinary mens rea requirement may also violate the right to
freedom of the person.110
There are several other relevant statutory provisions. Acts or speech ‘calculated or
likely to cause or encourage violence against any person or group of persons’ are
prohibited at gatherings or demonstrations within the purview of the Regulation of
Gatherings Act 205 of 1993.111 The Films and Publications Act prohibits the publication
or broadcasting of material that ‘incites imminent violence’.
(d) Hate speech

Drafted with the devastating consequences of the use of racist propaganda during the
Nazi era fresh in mind, a number of the post-war human rights instruments restrict the
scope of freedom of expression by preventing the incitement of racial hatred.112 Legal
restrictions on hate speech are also imposed in a number of democratic societies. The
Canadian Supreme Court has accepted the legitimacy of controls on hate speech, and is
therefore an important source of comparative jurisprudence in this area113 as is the
jurisprudence of the German courts.114 In the United States, by contrast, the normative
109
See, in this regard, AS Mathews Law, Order and Liberty in South Africa (1971) 191–195. Despite its long
title (a law to prohibit ‘the engendering of feelings of hostility between the European and non-European
inhabitants of the Republic’) the Act was never intended to protect against hate speech but rather to inhibit
opposition to apartheid.
110
See Chapter 12 above and Chapter 32 below.
111
Section 8(6).
112
See, for example, art 20(2) of the International Convention on Civil and Political Rights, 1966 (‘Any
advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence
shall be prohibited by law’) and art 4 of the International Convention on the Elimination of All Forms of Racial
Discrimination, 1965 ‘[State Parties] shall declare an offence punishable by law all dissemination of ideas based
on racial superiority or hatred, incitement to racial discrimination’. Although there is no hate-speech exception to
the freedom of expression right in art 10 of the European Convention on Human Rights the European Court of
Human Rights has upheld convictions for hate speech as consistent with art 10: Jersild v Denmark 19 EHRR 1
(1994).
113
The leading case is R v Keegstra [1990] 3 SCR 697.
114
There is a useful summary in M Rosenfeld ‘Hate Speech in Constitutional Jurisprudence: A Comparative
Analysis’ (2003) 24 Cardozo LR 1523, 1548–1555. The principal decisions are BVerfGE 7, 198 (1958) (the Lüth
case), 90 BVerfGE 241 (1994) (the Holocaust Denial case).
356
Expression 16.4
paramountcy given to freedom of speech means that no comparable jurisprudence on

hate speech has developed.115
The immediate source of the hate-speech qualification in s 16(2) can be found in the
draft Bill of Rights proposed by the African National Congress in 1990.116 There was no
specific reference to hate speech in the interim Constitution,117 but the very first drafts of
the final Bill of Rights introduced in the Constitutional Assembly contained the
qualification. The hate-speech clause, according to an ANC negotiator, would send a
‘powerful message’ that this type of behaviour would not be tolerated in a democratic
society where equality and human dignity were fundamental values.118
The clause as formulated excludes advocacy of hatred based on race, ethnicity,
gender and religion that amounts to incitement to cause harm from the ambit of the right
to freedom of expression. Two cumulative elements must therefore be present before an
expression can be considered hate speech: the expression must constitute advocacy of
hatred on one of the listed grounds119 and the advocacy must constitute incitement to
cause harm.
To advocate hatred is to propose or call for it, to make a case for it. Hatred is an
extreme emotion and advocacy of hatred should be confined to statements manifesting
‘detestation, enmity, ill-will and malevolence’.120 In Freedom Front v South African
Human Rights Commission an appeal committee of the Human Rights Commission held
that the political slogan ‘Kill the farmer, kill the boer’ was advocacy of hatred. ‘Calling
for the killing of people because they belong to a particular community or race must
amount to the advocacy of hatred, unless the context clearly indicates otherwise’.121 The
slogan was also clearly advocacy of hatred based on race or ethnicity (‘boer’ is a
derogatory epithet for Afrikaner).122 In Human Rights Commission of South Africa v
SABC the Broadcasting Complaints Commission held that derogatory and inflammatory
115
See Rosenfeld (note 114 above) 1529–1541 for an overview of the US case law. Rosenfeld makes the
useful point that US exceptionalism in this regard is a product of the values underlying its conception of free
speech: ‘If free speech in the United States is shaped above all by individualism and libertarianism, collective
concerns and other values such as honor and dignity lie at the heart of the conceptions of free speech that
originate in international covenants or in the constitutional jurisprudence of other Western democracies’ (1541).
116
African National Congress Constitutional Committee ‘A Bill of Rights for a New South Africa’ (1990)
(reproduced in (1991) 7 SAJHR 110). Article 14 required the state to ‘prevent any form of incitement to racial,
religious or linguistic hostility’ and permitted ‘legislation to prohibit the circulation or possession of materials
which incite racial, ethnic, religious, gender or linguistic hatred’.
117
See L Johannessen ‘A Critical View of the Constitutional Hate Speech Provision’ (1997) 13 SAJHR 135 for
the drafting history of the provision.
118
Willie Hofmeyer, quoted by Johannessen (ibid) 137–138. According to the South African Human Rights
Commission, the inclusion of the clause was justified when seen in an historical context: ‘Race, gender, ethnicity
and, to a lesser extent, religion were the very lines upon which . . . [apartheid] society was legally and
systematically divided. . . . These divisions were the fault lines of our society and represented the points at which
we were most vulnerable. Section 16(2)(c) of the Constitution withholds constitutional protection from hate
speech which accentuates the chasms that were fostered before 1994 and which threatened to tear this society
apart’: Freedom Front v South African Human Rights Commission 2003 (11) BCLR 1283 (SAHRC), 1290, 1292.
119
Unlike the prohibited grounds of discrimination in s 9(3), the list in s 16(2) is closed and cannot be
extended to cover analogous forms of hate speech. This means that routinely encountered forms of hate speech,
such as homophobic and perhaps even xenophobic speech, are not excluded from constitutional protection under
s 16(2).
120
R v Andrews (1988) 65 OR (2d) 161, 179 cited in Keegstra (note 113 above) 777.
121
Freedom Front v South African Human Rights Commission 2003 (11) BCLR 1283 (SAHRC), 1290
(declaring that the slogan was hate speech as contemplated by the Constitution). The Commission adjudicates
complaints of violations of the Broadcasting Code, which prohibits the broadcasting of hate speech.
122
Ibid. The same conclusion was reached on consideration of this slogan in Afriforum v Malema 2010 (5) SA
235 (GNP).
357
statements about the Indian population in a Zulu song (AmaNdiya) were advocacy of
hatred based on race. ‘The song’, according to the Commission, ‘polarises Zulus with
Indians by demeaning the Indians: they are a cause of poverty of Zulus, are worse than
the Whites were, have turned an important clan into clowns, have dispossessed them,
have suppressed them and play the fool with them’.123
However offensive advocacy of hatred may be, it does not rise to the level of hate
speech unless the second element—‘incitement to cause harm’—is present.124 We have
seen the progression of the US jurisprudence to the position in Brandenburg that, to lose
constitutional protection, speech must be intended to incite or produce imminent action
and must be likely to incite or produce such action. Is this test, highly protective of free
speech as it is, appropriate for the South African provision? An additional interpretative
issue is the meaning of the word ‘harm’. Harm is undoubtedly a wider concept than
Brandenburg’s ‘lawless action’ and certainly cannot be restricted to physical violence
since such an interpretation would collapse the hate-speech provision into the
‘incitement to imminent violence’ provision. What types of harmful result does the
hate-speech provision intend to discourage?
In its Freedom Front decision, the SAHRC held that ‘harm’ could not be confined to
physical harm, but should also be taken to include psychological and emotional harm.125
It relied in part on the decision of the Canadian Supreme Court in R v Keegstra126 which
described the types of ‘harm’ that may result from hate speech. The Supreme Court
stated that emotional damage caused by words may have grave psychological and social
consequences:
a response of humiliation and degradation from the individual targeted by hate propaganda
is to be expected. A person’s sense of human dignity and belonging to a community at large
is closely linked to the concern and respect accorded the groups to which he or she belongs
. . . The derision, hostility and abuse encouraged by hate propaganda therefore have a
severely negative impact on the individual’s sense of self-worth and acceptance. This impact
may cause target-group members to take drastic measures in reaction, perhaps avoiding
activities which bring them into contact with outsiders or adopting attitudes and postures
directed towards blending in with the majority. Such consequences bear heavily in a nation
that prides itself on tolerance and the fostering of human dignity through, among other
things, respect for the many racial, religious and cultural groups in our society.127
The South African constitutional order, according to the Commission, is based on the
same premises of human dignity and the promotion of inclusivity and tolerance of
diversity.128
123
Human Rights Commission of South Africa v SABC 2003 (1) BCLR 92 (BCCSA) [35].
124
See Van Loggerenburg v 94.7 Highveld Stereo 2004 (5) BCLR 561 (T) [6] (a joke ridiculing the miraculous
conception of Christ may be ‘objectionable, offensive and indeed ill-conceived’ but does not advocate hatred
based on religion or incite the causing of harm).
125
Note 121 above.
126
Note 113 above.
127
Ibid 227–228. Section 2(b) of the Canadian Charter of Rights and Freedoms guarantees the right to
freedom of expression without any hate speech qualification. In Keegstra (ibid), the court considered the validity
of s 319 of the Canadian Criminal Code which provides that any person ‘who, by communicating statements,
other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of . . . an
indictable offence’. The court held that the legislation was a reasonable and justifiable limitation of the right to
freedom of expression.
128
Note 121 above 1282. In the Human Rights Commission decision (note 123 above) [39] the Broadcasting
Commission considered the song AmaNdiya harmful ‘in the sense that it violates dignity and places the
constitutional right to security of Indians at risk’.
358
Expression 16.4
We submit that a conception of harm that is not confined to physical harm but
includes harm to dignity interests conforms to the purpose of the hate-speech
exception. The reason for the exception is precisely that hate speech causes the types
of harm identified by the Canadian court. It is the speech itself, and not the audience
who may or may not be sufficiently fired up to translate the message into violent
action, that causes the social and psychological harm. For purposes of s 16(2),
incited must therefore be taken to mean ‘directed at’ or perhaps ‘intended’.
Therefore, hate speech is advocacy of hatred on a listed ground, intended to cause
harm to dignity. Whether speech does cause harm must be assessed objectively.129
We have seen that the hate speech provisions of international instruments require
positive measures to be taken to protect the rights of equality and dignity against
hate speech. Section 16(2) is definitional in scope and does not itself prohibit hate
speech. Supplementary legislation is therefore required to prohibit hate speech and
provide remedies to counter its harmful effects.130 A general prohibition on hate
speech was enacted in s 10 of the Promotion of Equality and Prevention of Unfair
Discrimination Act 4 of 2000.131 The section came into operation on 16 June
2003.132
Prohibition of hate speech

10. (1) Subject to the proviso in section 12, no person may publish,
propagate, advocate or communicate words based on one or more of
the prohibited grounds, against any person, that could reasonably be
construed to demonstrate a clear intention to—
(a) be hurtful;
(b) be harmful or to incite harm;
(c) promote or propagate hatred.
(2) Without prejudice to any remedies of a civil nature under this Act,
the court may, in accordance with section 21(2)(n) and where
appropriate, refer any case dealing with the publication, advocacy,
propagation or communication of hate speech as contemplated in
subsection (1), to the Director of Public Prosecutions having jurisdiction
for the institution of criminal proceedings in terms of the common law
or relevant legislation.
129
S v Mamabolo (note 7 above) [43] (‘one does not ask . . . what the actual effect of the disputed statement
[scandalising the court] was on one or more publishees. The law regards it as more reliable to infer from an
interpretation of the statement what its consequence was’.) In its Freedom Front decision (note 121 above) at
1283 the SAHRC set out the test as follows: ‘whether a reasonable person assessing the advocacy of hatred on
the stipulated grounds within its context and having regard to its impact and consequences would objectively
conclude that there is a real likelihood that the expression causes harm’.
130
Ironically, a number of apartheid-era statutes prohibiting what could be interpreted as hate speech
(‘promoting feelings of hostility between race groups’ was the typical formulation—see the discussion of the
Riotous Assemblies Act in note 109 above) were repealed during the transition period.
131
There are prohibitions with narrower application in s 29 of the Films and Publications Act 65 of 1996
(prohibiting the intentional distribution of publications containing hate speech as defined in s 16(2)(c) of the
Constitution) and in the Broadcasting Code (see Human Rights Commission of SA v SABC (note 123 above)).
132
Proclamation R49 of 13 June 2003.
359
There is considerable overlap between this provision and s 12 (the proviso to which also
applies to s 10):
Prohibition of dissemination and publication of information that

unfairly discriminates
12. No person may—
(a) disseminate or broadcast any information;
(b) publish or display any advertisement or notice,
that could reasonably be construed or reasonably be understood to
demonstrate a clear intention to unfairly discriminate against any per-
son: Provided that bona fide engagement in artistic creativity, academic
and scientific inquiry, fair and accurate reporting in the public interest or
publication of any information, advertisement or notice in accordance
with section 16 of the Constitution, is not precluded by this section.
These wordy provisions possess none of the clarity of s 16(2)(c). Instead of simply
prohibiting hate speech defined by repeating the formulation in the constitutional
provision, the Equality Act chooses to add in a great deal of nomenclature that is either
superfluous or that considerably widens the scope of the constitutional conception of
hate speech: ‘publish, propagate, advocate or communicate’ instead of simply
‘advocate’; ‘reasonably be construed to demonstrate a clear intention to’ instead of
simply ‘incited’. The prohibited grounds of advocacy are not confined to the three
grounds listed in s 16(2)(c) but now encompass all the grounds of non-discrimination in
s 9(3) of the Constitution.133 This makes hate speech into a prohibition of discriminatory
speech, making it difficult to see what additional purpose the specific prohibition of
discriminatory speech in s 12 is intended to serve. This is of course far wider than the
hate-speech qualification of s 16(2), as is the inclusion of the prohibition of ‘hurtful’
(expressly distinguished from ‘harmful’) expression.134 To the extent that the scope of
its prohibition is wider than the Constitution’s hate-speech exception, the Equality Act is
a limitation of freedom of expression and will have to be justified.135
133
Section 1 of the Equality Act defines ‘prohibited grounds’ as ‘race, gender, sex, pregnancy, marital status,
ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language
and birth’ or any other ground where discrimination causes or perpetuates systemic disadvantage or undermines
human dignity or adversely affects the equal enjoyment of a person’s rights and freedoms in a serious manner that
is comparable to discrimination on a listed ground.
134
See, however, A Kok ‘The Promotion of Equality and Prevention of Unfair Discrimination Act: Why the
Controversy?’ 2001 TSAR 294, 299–300. Kok argues that this part of the Act can be read down to conform to the
Constitution’s conception of hate speech: ‘if one extends the ‘‘causing of harm’’ to include the causing of
emotional anguish, it takes on the meaning of ‘‘hurtful’’.’
135
The difficulties of applying the Equality Act’s definition of hate speech are illustrated by Afriforum v
Malema 2011 (6) SA 240 (EqC) (song ‘Dubula ibhunu’ (shoot the Boer) reasonably capable of being construed as
having intention to be hurtful, to incite harm and promote hatred against the white, Afrikaans-speaking
community).
360
The common law of delict provides a civil remedy for speech causing an iniuria.136 The
remedy must be applied and developed with the Constitutional disapproval of hate
speech in mind.137
16.5 CONTROVERSIAL AREAS OF APPLICATION
(a) Commercial expression

Commercial expression is expression proposing a commercial transaction.138 The most
obvious example is advertising. Is commercial expression protected by s 16? If so, the
right could form the basis of an objection to, for example, legislative restrictions on the
advertising of cigarettes or alcohol.
Given the wide interpretation of expression favoured by the Constitutional Court, all
forms of commercial speech are likely to be considered protected ‘expression’, with any
differentiation between their treatment and that of other forms of expression occurring at
the limitations stage of analysis. There are sound reasons for affording constitutional
protection to commercial expression.
First, it is very difficult to distinguish between commercial expression and other
forms of expression.139 Any restriction on commercial speech would inevitably have a
‘chilling’ effect on protected forms of expression. Secondly, advertisers often sponsor
and therefore make protected forms of expression possible. Any restrictions on
commercial speech would have a knock-on effect and eventually undermine the role of
the press and the media in a democracy. Thirdly, a market-orientated economy cannot
function properly and effectively without commercial speech. Finally, commercial
expression has been afforded constitutional protection (albeit often a lesser degree of
protection than other forms of expression) in other open and democratic societies.140
The limitation of commercial expression will have to be justified under s 36. Under
s 36, the least infringing alternative must be chosen. Regulation of commercial speech
would of course be less infringing and therefore easier to justify than a ban on certain
136
The common-law crimes of criminal defamation and crimen injuria which penalise intentional and serious
invasions of fama and dignitas have probably been superseded by s 10 of the Equality Act, in so far as hate
speech is concerned.
137
See Tarloff v Olivier 2004 (5) BCLR 521 (C) (Constitution’s hate-speech provision and the prohibition of
hate speech in the Equality Act must be taken into account in setting the quantum of damages for an inuiria
caused by hate speech).
138
Virginia State Board of Pharmacy v Virginia Citizens Consumer Council, Inc 425 US 748 (1976). So
defined, commercial speech was initially excluded from constitutional protection in the United States. See
Pittsburgh Press v Human Relations Commission 413 US 376 (1973) 382 As we point out below, the US courts
later abandoned this attempt to differentiate commercial speech and now protect all forms of advertising, whether
it contains factual material in the public interest or simply proposes a commercial transaction.
139
See City of Cape Town v Ad Outpost 2000 (2) SA 733 (C), 749D (holding that advertising is protected
speech and remarking that ‘[s]o much speech is by its very nature directed towards persuading the listener to act
in a particular manner that artificially created divisions between the value of different forms of speech requires
critical scrutiny’); North Central Local Council and South Central Local Council v Roundabout Outdoors (Pty)
Ltd 2002 (2) SA 625 (D).
140
In the United States, since Bigelow v Virginia 421 US 809 (1975). For the level of scrutiny, see the test
formulated in Central Hudson Gas v Public Services Commission 447 US 557 (1979). In Canada, protection for
commercial speech was extended in Irwin Toy Ltd v Quebec (A–G) (1989) 58 DLR (4th) 577, but the
requirements of the general limitation clause were relaxed to accommodate a prohibition of advertising directed
at children under 13. This seems to be the approach of Davis J in Ad Outpost (note 139 above) 749F.
361
forms of commercial speech.141 Regulation may be necessary to prevent coercion to buy

a product, particularly when direct and personal targeting is used by the advertiser.
However, false or misleading advertising or the advertising of illegal products may be
prohibited.
In Laugh It Off142 the court considered the use by the applicant of certain trademarks
of the respondent in the production and sale of t-shirts that satirised famous brands,
including that of the respondent (‘Black Labour, White Guilt’). The court held that,
unless the expression sought to be protected is specifically excluded in terms of s 16(2)
of the Constitution, it will be protected, subject to an ordinary limitations analysis. In
determining whether the harm suffered by the respondent by the use of its trademark
justified limitation of the applicant’s right to freedom of expression, the court held that
‘[i]n an open democracy valuable expressive acts in public ought not to be lightly
trampled upon by marginal detriment or harm unrelated to the commercial value that
vests in the mark itself.’143 The fact that expression is commercial in nature, therefore,
does not detract from its value in promoting democratic principles.
In British American Tobacco,144 the court considered provisions of the Tobacco
Products Control Act 83 of 1993 that prohibit the advertising or promotion of tobacco
products. At issue was whether the prohibition should be interpreted to cover so-called
‘one-to-one’ communications between manufacturers and consumers. These included
information such as packaging changes and product developments. It was agrued that to
read it the legislation covered such communications between the manufacturer and
consenting users of its products this would limit not only the appellant’s right to engage
in commercial expression, but also the right to freedom of expression of tobacco
consumers who are denied the right to receive information concerning tobacco products.
The Supreme Court of Appeal held that the provision did limit the freedom to receive
or impart information or ideas by preventing the manufacturer, importer and other trader
from imparting information concerning its product and by preventing consumers from
receiving such information and making consequent informed choices.145 The limitation
was however held to be justifiable:
The right to commercial speech in the context of this case is indeed important. But it is not
absolute. When it is weighed up against the public health considerations that must
necessarily have been considered when imposing the ban on advertising and promotion of
tobacco products it must, I think, give way. The seriousness of the hazards of smoking far
outweigh the interests of the smokers as a group.146
141
See Ad Outpost (ibid) 750I (by-law prohibiting outdoor advertising on premises by parties other than
occupier an unjustifiable limitation of freedom of expression since purpose of protecting environment could be
achieved by less infringing means). Regulation that fell short of a blanket ban on outdoor advertising was upheld
in North Central Local Council and South Central Local Council v Roundabout Outdoor (Pty) Ltd 2002 (2) SA
625 (D) (consent requirement for erection of outdoor billboards a legitimate limitation of the right designed to
achieve the objective of traffic safety by eliminating hazards to pedestrians and motorists and to preserve the
appearance of the city).
142
Laugh It Off Promotions CC v SAB International (Finance) BV t/a SabMark International 2006 (1) SA 144
(CC).
143
Ibid [56].
144
British American Tobacco South Africa (Pty) Ltd v Minister of Health [2012] 3 All SA 593 (SCA).
145
Ibid [12].
146
Ibid [25].
362
Expression 16.5
(b) Pornography
Is pornography protected expression under the Constitution? The fact that this question
gets asked reflects the influence of the constitutional law of the United States in this
area. In the US, pornography that can be considered ‘obscene’ is not protected by the
First Amendment since it contains no ‘exposition of ideas, and (is) of such slight social
value as a step to truth that any benefit that may be derived from them is clearly
outweighed by the social interest in order and morality’.147 In its only decision on the
regulation of pornography under the interim Constitution, Case v Minister of Safety and
Security,148 the majority of the court declined to express an opinion on this issue,
deciding the case instead on the basis that a prohibition on the possession of
pornography is a violation of the right to privacy. However, in De Reuck the court
definitively held that s 16 is content-neutral and encompasses pornography. The
expression right, it held, ‘does not warrant a narrow reading. Any restriction upon
artistic creativity must satisfy the rigours of the limitation analysis.’149 In Print Media,
the court held that ‘the expression of sexual conduct’, which was subject to regulation
by the Films and Publications Act 65 of 1996, constituted protected speech.150
So, censorship of pornography is a limitation of freedom of expression and can
survive only if it justifiable as a reasonable and proportional measure to achieve a
legitimate purpose.
Censorship of the depiction of sexual activity occurs with varying degrees of severity
in most legal systems. In South Africa, the old-order censorship laws151 have been
repealed and replaced by the Films and Publications Act 65 of 1996. Whereas the old
censorship regime was premised on religious morality and associated ideas of
‘decency’, the new Act reflects the influence of more modern justifications for
censorship: the idea that pornography can cause harm to vulnerable groups, particularly
women and children.152 The Act prohibits the distribution of publications containing
visual presentations of (a) children under the age of 18 years participating in, engaging
in or assisting in sexual conduct or a lewd display of nudity; (b) explicit violent sexual
conduct; (c) bestiality; (d) explicit sexual conduct that degrades a person and that
constitutes incitement to cause harm; (e) the explicit infliction of or explicit effecting of
extreme violence that constitutes incitement to cause harm. Possession of material in
category (a) (child pornography) is prohibited. These prohibitions do not apply to bona
147
Chaplinsky v New Hampshire 315 US 568 (1942), 571–572.
148
Case v Minister of Safety and Security (note 79 above).
149
Ibid [50].
150
Print Media (note 24 above) [48]–[49].
151
The Indecent or Obscene Photographic Matter Act 37 of 1967 and the Publications Act 42 of 1974. The
latter Act wore its moral heart on its sleeve by declaring, in s 1, that ‘In the application of this Act the constant
endeavour of the population of the Republic of South Africa to uphold a Christian view of life shall be
recognised’. Provisions of the Indecent or Obscene Photographic Materials Act were declared invalid as
violations of the right to privacy in Case (note 79 above). In JT Publishing v Minister of Safety and Security 1997
(3) SA 514 (CC) the court declined to decide a challenge to the Publications Act 42 of 1974 on the basis that the
issue was moot, since the 1996 Films and Publications Act had repealed the 1974 Act and was about to come into
operation.
152
The most influential literature in the field is the polemical work of Andrea Dworkin and Catharine
MacKinnon: see Dworkin’s Pornography: Men Possessing Women (1981) and MacKinnon’s Only Words (1993).
‘Harm’ includes harm to individuals (the mistreatment of participants in the production of pornography;
consumers ‘living out’ the fantasies they see depicted) as well as harm to equality and dignity of social groups
(stereotyping women as degraded objects of male lust).
363
fide scientific, documentary, literary or artistic publications.153 A lesser degree of

regulation applies to the publication, possession, exhibition and distribution of
sexually-explicit material not falling into these categories, primarily in order to prevent
children younger than 18 from gaining access to these materials.
With the exception of (e), these provisions cover broader categories of expression
than the exclusions listed in s 16(2).154 Most of the provisions will therefore have to be
justified as limitations of freedom of expression. De Reuck was a challenge to the
constitutionality of the Act’s prohibition of the creation, production, importation or
possession of child pornography. The prohibition, the Constitutional Court held, was a
limitation of freedom of expression and the right to privacy.155 Was the limitation
justifiable? The justification analysis entails weighing up harm done against benefits
obtained. How much harm a prohibition of pornography does depends on whether
pornography is at the core of what is valuable about free speech or at its margins.
As we have seen, the Constitutional Court has held that freedom of expression is
valuable for many reasons. These include its instrumental function as a guarantor of
democracy, its implicit recognition and protection of the moral agency of individuals in
our society, and its facilitation of the search for truth by individuals and society
generally. The Constitution recognises that individuals in our society need to be able to
hear, form and express opinions and views freely on a wide range of matters’.156
Pornography cannot be said to assist much with the achievement of these noble goals. It
is therefore expression that ‘does not implicate the core values of the right. Expression
that is restricted is, for the most part, expression of little value which is found on the
periphery of the right’.157
Weighed up against the infringement were compellingly important interests. The
prohibition was aimed at protecting the dignity of children, stamping out the market for
photographs made by abusing children and preventing a reasonable risk that images will
be used to harm children.158 The relatively narrow infringement of expression was held
to be outweighed by the important legislative purposes performed by the prohibition.159
A law that invades rights more than is necessary to achieve its purpose is evidently
disproportionate or, to use the term routinely employed in the jurisprudence,
‘overbroad’. In De Reuck, the applicant’s argument was that the Act was overbroad in
that it caught in its net possessors of child pornography that were not perpetrators of the
harm that the prohibition was intended to prevent. The examples given by the applicant
were a film-maker who possessed the material while making a documentary film about
the evils of child pornography, or a lawyer who came into possession of the material
153
See ss 28 and 30 read with Schedules 1 and 5 to the Act. The prohibition of child pornography also applies
to an artistic publication.
154
See De Reuck (note 16 above) [47] (applicant’s challenge to child pornography provisions ‘quite correctly’
did not seek to rely upon the specific exclusions in s 16(2)).
155
The fact that s 22 of the Act provided a procedure whereby a person who wishes to possess, import, create,
produce or distribute child pornography (for ‘bona fide purposes’ such as research or law enforcement) may
apply for an exemption to do so did not mean that the Act did not limit the rights. It was sufficient that there was
a mere possibility that, absent an exemption, a person may be convicted. De Reuck (note 16 above) [53]. The
exemption procedure was however held to be relevant to the limitation analysis.
156
South African National Defence Union (note 14 above) [7], cited in De Reuck (note 16 above) [59].
157
De Reuck (note 16 above) [59].
158
Ibid [67].
159
Ibid [70].
364
Expression 16.5
while defending a client charged under the Act.160 The Act, so the argument went, was a
disproportionate response in that it failed to provide a defence to a possessor that his or
her possession was for a legitimate purpose.161
This objection was answered by pointing to the exemption procedure in the Act.
Researchers and film-makers would not be convicted if they have received an
exemption. Given the nature of their interest in the material, it is not a disproportionate
burden for researchers and film-makers to apply for exemption. A blanket ‘legitimate
purpose’ defence, on the other hand, was open to abuse, to exploitation of the defence as
a cover for harmful activities. The defence was therefore reasonably likely to detract
from the effectiveness of the prohibition which was based on the average probability
that, among all the people who possess child pornography, some will use it to harm
children.
The proposed ‘legitimate purpose’ defence seeks to undo this form of risk assessment by
requiring an individualized risk to be proved on the part of a researcher, a film-maker or
someone pursuing a similar project. Drawing an analogy with other possession offences may
illustrate how the ‘legitimate purpose’ defence would undermine the effectiveness of the
general prohibition. Consider, for example, a ‘legitimate purpose’ defence which allowed
amateur chemists to possess dangerous drugs.162
As for possession by lawyers or police officers in the context of a criminal case in terms
of the Act, though the Act did not allow possession in such cases this did not mean that
such possessors would be committing an offence. According to the court, ‘determination
of whether they do involves questions concerned with the issues of lawfulness, mens
rea, justification, necessity and the constitutional concept of a fair trial’.163 If, on
consideration of those questions, a court found the Act to be a limitation of rights, the
proper remedy would be to create a protection for bona fide possessors of this type by
means of notional severance or a reading-in.164
In Print Media,165 aspects of the Act’s system of prior classification were
successfully challenged. The case is discussed further in para 16.5(d) further below.
(c) Defamation
The law of defamation lies at the intersection of the freedom of speech and the
protection of human dignity, both rights protected by the Bill of Rights.166 At common
law, the actio iniuriarum recognises an action to remedy injury to the person, dignity or
reputation of another person.167
The common-law action for defamation had over the course of the twentieth century
been developed by the courts in such a way as to systematically undervalue the first of
these rights, particularly its sub-category of freedom of the media. In what follows we
consider the development of the law of defamation since commencement of the interim
Constitution in 1994.
160
Ibid [71].
161
Ibid [73].
162
Ibid [82].
163
Ibid [84].
164
Ibid [87].
165
Print Media (note 24 above).
166
167
Delange v Costa 1989 (2) SA 857 (A), 860–861; Le Roux v Dey 2011 (3) SA 274 (CC) [143].
365
(i) The common law and the indirect application of the Constitution
At the time of the commencement of the interim Constitution in 1994, the law of
defamation made a strong distinction between two types of defendant. The media (the
newspapers and broadcast media) was treated differently to any other defendant:
Table 3: The pre-1994 law of defamation
Non-media defendants Media defendants

To succeed in a defamation action a plain- The same, with the exception that the pre-
tiff must prove, on a balance of probabili- sumption of animus iniuriandi cannot be
ties: rebutted. The owner, publisher, printer and
(a) A publication by the defendant editor of a newspaper are strictly liable for
(b) of defamatory material (material that defamation even in the absence of fault.
a ‘reasonable person of ordinary Other members of the media such as
intelligence might reasonably under- broadcasters are liable on the same
standn. . . to convey a meaning defa- basis.171
matory of the plaintiff’168).
This gives rise to a presumption of wrong-
fulness169 and intention, which the defen-
dant is under a full onus to rebut by prov-
ing the existence of one or more of the
following grounds of justification:
a. The publication was subject to privilege
or was made on a privileged occasion;
b. The defamatory material was true and
its publication was in the public interest.
c. The material constituted fair comment.
d. Absence of intention (animus inuiri-
andi) (for example, the defendant was neg-
ligently unaware of the wrongfulness of
the publication or the publication was
made in jest.)
These defences were not a closed list and
other defences rebutting the presumption
of wrongfulness could, in principle, be
developed with reference to the guiding
factor of public policy. However, a gen-
eral and abstract defence that public policy
justified the publication and made it not
wrongful, was not available.170
168
Argus Printing and Publishing Co Ltd v Esselen’s Estate 1994 (2) SA 1 (A), 20E–G.
169
The element of unlawfulness required a statement to be objectively unreasonable, before it was considered
to be unlawful. Put differently, a publication was not regarded as unlawful if public policy considered it to be
justified in the circumstances.
170
Neethling v Du Preez 1994 (1) SA 708 (A), 777E.
171
Pakendorf v De Flamingh 1982 (3) SA 146 (A) (newspaper owners, publishers, editors and printers are not
entitled to rely on their lack of knowledge of defamatory material in their publications or on an erroneous belief
366
Expression 16.5
In a number of cases after the commencement of the interim Constitution, the courts
confronted arguments that the action for defamation as set out above, particularly when
it came to media defendants, gave insufficient protection to the constitutional right to
freedom of expression. During the period of operation of the interim Constitution, these
cases immediately ran up against the issue of the form of application of the Bill of
Rights in the horizontal sphere and the case law deriving from this period is
considerably complicated by this.172 Defamation cases (unless they involve state
litigants173) are textbook examples of horizontal litigation: private litigants enforcing
common-law rights. In Du Plessis v De Klerk,174 the Constitutional Court held that
though the interim Bill of Rights did not apply directly in defamation litigation it applied
indirectly to defamation disputes through the operation of s 35(3) of the interim
Constitution, and that the Supreme Court (including the Appellate Division) was the
proper institution to develop the common law in the light of the Bill of Rights.
(ii) The common law reconsidered: National Media Ltd v Bogoshi

The occasion for the Supreme Court of Appeal to re-examine the common law of
defamation came in 1998 in National Media Ltd v Bogoshi.175 The case turned on the
excipiability of two defences by the newspaper to the publication of a series of
defamatory articles. The first was that the publication was not unlawful and was
constitutionally protected. The second arose from the fact that, following the usual
practice,176 the owner, publisher, printer and editor had been sued. This defence was that
two of the defendants, the distributor and printer, were unaware of the defamatory
article.
The issue of unlawfulness was treated first. Hefer JA began by saying that a plea of
this nature had not been considered by a court in South Africa, but that the defences
available to a defendant in a defamation action do not constitute a closed list.
Lawfulness is determined by the application of a general criterion of reasonableness
in the lawfulness of the publication of defamatory material). As Neethling et al explain the rationale for this rule:
‘There are very good reasons why the press should be held liable without fault for defamation: firstly, it is very
difficult to prove intent on the part of the persons involved and secondly the defenceless individual is placed in an
invidious position vis-à-vis the press as powerful medium’ (J Neethling et al Law of Delict (1990) 311). Davis J
in Sayed v Editor, Cape Times 2004 (1) SA 58 (C) takes a less charitable view: ‘[Pakendorf] unquestionably
contributed to the diminution of press freedom and public deliberation which was central an aim of apartheid
South Africa’ (62B–C).
172
See, for example, De Klerk v Du Plessis 1994 (6) BCLR 124 (T) (Bill of Rights in the interim Constitution
does not apply horizontally and therefore does not ‘invade’ the private law; court bound by Appellate Division
precedent on the law of defamation); cf McNally v M & G Media 1996 (6) BCLR 818 (W). In other cases, the
courts held that the established principles conformed with the Constitution and that there was no need for any
development: Bogoshi v National Media 1996 (3) SA 78 (W); Potgieter v Kilian 1996 (2) SA 276 (N). Some
Supreme Court judges developed new approaches to defamation in the light of the Constitution, notably
Cameron J in Holomisa v Argus Newspapers (note 39 above).
173
At common law the state could not be a plaintiff in a defamation suit: Die Spoorbond v South African
Railways 1946 AD 999 (the Crown cannot sue for damages for defamatory statements that had allegedly injured
its reputation). The Spoorbond rule was overruled by the Supreme Court of Appeal in Mthembi-Mahanyele
v Mail & Guardian Ltd 2004 (6) SA 329 (SCA) (‘denying to a cabinet minister locus standi to claim damages for
defamation . . . does not give sufficient weight to the right to dignity and to not having one’s reputation
unlawfully harmed. It elevates freedom of expression above that of dignity when there is not, and there should
not be, a hierarchy of rights. It denies to a class of people the ability to protect their reputations, save where
defamatory statements are made with malice’ ([42]).
174
Du Plessis v De Klerk 1996 (3) SA 850 (CC).
175
National Media Ltd v Bogoshi 1998 (4) SA 1196 (SCA).
176
Following the decision in Pakendorf (note 171 above), endorsed in Neethling (note 170 above).
367
based on considerations of fairness, morality, policy and the court’s perception of the
legal convictions of the community. The court added, with reference to SAUK v
O’Malley,177 that it had to be determined in each case whether public and legal policy
requires the particular publication to be regarded as unlawful. The decisive
consideration in this regard is the reasonableness of the publication in the circumstances
of the case. Even false defamatory statements of fact must be regarded as lawful if, in all
the circumstances of the case, it is found to be reasonable to publish the particular facts
in the particular way and at the particular time they were published.178 The court
emphasised that the protection is only afforded to the publication of material in which
the public has an interest. In considering the reasonableness of the publication, account
must be taken of the nature, extent and tone of the allegations. Greater latitude is usually
allowed in respect of political discussion. The tone of a newspaper article, or the way in
which it is presented, may sometimes provide an additional and perhaps unnecessary
sting. Also important are the nature of the information on which the allegations were
based and the reliability of their source as well as the steps taken to verify the
information. Ultimately, there can be no justification for the publication of untruths, and
members of the press should not be left with the impression that they have a licence to
lower the standards of care which must be observed. This is so particularly given the
powerful position of the press and the credibility which it enjoys amongst large sections
of the community.179 Other factors, such as whether the person concerned was given the
opportunity to respond, must also be taken into account.
Turning to the issue of fault (raised more directly by the plea of the distributor and the
printer that they were unaware of the defamatory articles), the court overruled its earlier
decision in Pakendorf v De Flamingh.180 The effect of the Pakendorf judgment was that,
unlike ordinary members of the community, newspaper owners, publishers, editors and
printers (but not distributors) were held to be liable without fault. In Pakendorf and
O’Malley, the reasons advanced for holding the press strictly liable were ‘the inequity of
permitting the owner or editor to rely on the absence of animus iniuriandi brought about
by the mistake on the part of the reporter’ and the ‘difficulty of bringing animus
iniuriandi home to any particular person’.181 These reasons were not considered
persuasive by the Supreme Court of Appeal. Instead, a ‘potent consideration’ was the
‘social utility of strict liability in inhibiting the dissemination of harmful falsehoods’.182
But, despite this utility, strict liability of the press could no longer be defended.
Pakendorf was clearly wrong and had to be overruled. The court then recognised that the
rejection of Pakendorf rendered it necessary to consider another basis for holding the
press liable. If animus iniuriandi was required, media defendants could raise ignorance
or mistake and this would make nonsense of the approach to unlawfulness outlined
above. Moreover, the court held that there were compelling reasons for holding that the
media should not be treated on the same footing as ordinary members of the public by
permitting them to rely on the absence of animus iniuriandi, and that it would be
appropriate to hold media defendants liable unless they were not negligent in the
177
SAUK v O’Malley 1997 (3) SA 394 (A).
178
Bogoshi (note 175 above) 1212G–H.
179
Ibid 1212H–1213B.
180
Note 171 above.
181
Bogoshi (note 175 above) 1209C–E.
182
Ibid 1209F.
368
Expression 16.5
circumstances. The additional burden was entirely reasonable in the light of the greater
impact and credibility of the media compared to individual defendants. The defences of
the distributor and the printer, that they were not negligent, were therefore also held to
be good in law.
The court then held that the onus would remain on the media defendant to show that
the publication was reasonable (ie, not unlawful) and that it was not negligent, when a
plaintiff has shown that a defamatory statement was published.183
Finally, on the constitutional angle of the argument of the defendants, the court held
that it had not applied the Constitution indirectly—through s 35(3) of the interim
Constitution—but that it nevertheless regarded the conclusion it had reached to conform
with the Constitution.184 This is the oddest part of the decision, and has been subjected
to trenchant criticism in the literature. The problem lies not in the order of
analysis—first correctly state the common law (correcting any errors in previous
decisions), then ascertain whether the common law as correctly stated conforms to
constitutional values. This, though criticised at the time, turns out to be in compliance
with the two-part method of indirect application of the Constitution to the common law
set out by the Constitutional Court in the later decision of Carmichele v Minister of
Safety and Security.185 The problem is the court’s treatment of its decision in Pakendorf
as the one regrettable moment of error in an otherwise long and distinguished record of
respect for media freedom. This is, to put it mildly, disingenuous. As Johan van der Walt
tells the story:
The Appellate Division knew that they had to change tack. The question was how to do so
without losing face. Given the tone set by the jurisprudence of the Constitutional Court,
given the fervour for freedom of expression in the newly established South African
democracy, the Appellate Division’s judgment in Neethling, delivered only five years (albeit
years with the significance of five hundred) before Bogoshi, must have become rather
embarrassing. . . . How to change tack without losing face? That was the question. The
answer was to again ignore the judgment in the Neethling case and to base the need for a
change in our defamation law on an ‘incorrect decision’ in the politically less charged
Pakendorf case.186
The other problem is the appeal court’s insistence that the development of the common-
law principles of defamation had occurred as a result of the ordinary dynamic
development of the common law of delict, and was not a development required or even
inspired by the new constitutional values or provisions.187
(iii) Bogoshi confirmed: Khumalo v Holomisa

As we have seen,188 the 1996 Constitution provides for direct horizontal application of
183
Ibid 1215H–J.
184
Ibid 1216E–F.
185
186
JWG van der Walt ‘Progressive Indirect Horizontal Application of the Bill of Rights: Towards a
Co-Operative Relation between Common-Law and Constitutional Jurisprudence’ (2001) 17 SAJHR 341, 357.
187
AJ van der Walt ‘Transformative Constitutionalism and the Development of South African Property Law’
(unpublished, 2004). As Van der Walt points out commentators who were skeptical about horizontal application
described this as an excellent decision: D van der Merwe ‘Constitutional Colonisation of the Common Law: A
Problem of Institutional Integrity’ 2000 TSAR 12–32. Commentators in favour of horizontality (foremost among
whom is Johan van der Walt (note 186 above) regard the avoidance of the catalytic effect of the Constitution in
this decision as cynical and misleading.
188
369
rights in certain circumstances. Direct application means that individuals have a duty to
uphold a right in the Bill of Rights to the extent that ‘[the right] is applicable, taking into
account the nature of the right and the nature of any duty imposed by the right’.189
Khumalo v Holomisa190 is doubly significant as the Constitutional Court’s first use of
the direct horizontality provisions of the 1996 Constitution as well as the court’s first
consideration of the substance of the law of defamation.
Why was Khumalo decided as a direct horizontal application case? The reasons were
tactical. In the High Court191 the defendants excepted to the plaintiff’s use of the
standard particulars of claim in a defamation action. The exception was summarised as
follows by Van der Westhuizen J:
The plaintiff’s particulars of claim do not contain any allegation regarding the falsity of the
allegedly defamatory statements in respect of which the plaintiff is suing the defendant. The
question at the heart of this matter is whether the . . . [1996 Constitution] requires a plaintiff
to allege and prove the falsity of such a statement, in particular through s 8 (on the
application of the Bill of Rights) and s 16 (on the right to freedom of expression). This is
what the excipients (the defendants in the action) contend.192
The reason the defendants invoked s 8 was that, in Bogoshi, the SCA had dealt with this
issue in the course of an indirect application in terms of s 35 of the interim Constitution.
As we have seen, the SCA had held that, notwithstanding other important changes to the
law of defamation, the common-law distribution of the onus did not need changing. As
Hefer JA put it, ‘in my view, the onus should be on the defendant . . . . I find it difficult
to see why . . . a plaintiff should, as part of his claim, allege and prove something that the
defendant may rely upon in justification’.193 Characterising the matter as a direct
application case would allow the reconsideration of the issue by the High Court,
undeterred by the doctrine of stare decisis.194
On direct appeal to the Constitutional Court,195 it was held that the 1996
Constitution directly applied ‘in this case’.196 This meant that ‘we need . . . to
determine . . . whether the common law of defamation unjustifiably limits [the right
to freedom of expression]. If it does, it will be necessary to develop the common law
in the manner contemplated by section 8(3) of the Constitution’.197
189
Section 8(2).
190
Note 15 above.
191
Holomisa v Khumalo 2002 (3) SA 38 (T).
192
Ibid 44.
193
Bogoshi (note 175 above) 1218F.
194
As Christopher Roederer puts it in his useful commentary on the case, ‘the question whether Bogoshi was
binding on . . . [the High Court] fundamentally depended on whether there is a substantial difference between an
analysis based on s 35 of the interim Constitution and an analysis under s 8 of the 1996 Constitution’:
‘Post-Matrix Legal Reasoning: Horizontality and the Rule of Values in South African Law’ (2003) 19 SAJHR 57,
65.
195
Van der Westhuizen J’s conclusion, after a scrupulous analysis (and on the basis of an assumption that s 16
of the Constitutional was directly horizontally applicable in terms of s 8) was that direct application might yield
a different result on the onus issue than indirect application. He put it this way: ‘I am not necessarily convinced
that the existing common-law position on the burden of proof regarding the falsity or truthfulness of published
statements, as a general rule, would be in accordance with the Constitution in all cases and a fresh look may be
warranted’ (note above 69). But such a tentative conclusion, he held, did not warrant departing from the Bogoshi
decision. It was speculative to suggest that the SCA would change its mind on the onus issue if it heard the case
in terms of the direct application provisions of the 1996 Constitution.
196
Note 15 above [33]. ‘In this case’ is a rather troublesome phrase. Does it mean only in this particular case,
or, the general case of defamation actions involving the media?
197
Ibid [33].
370
Expression 16.5
Direct application is the testing of an allegation that an aspect of the common law
is inconsistent with the Constitution. In Khumalo, the Constitutional Court put the
question as follows: ‘whether, to the extent that the law of defamation does not
require a plaintiff in a defamation action to plead that the defamatory statement is
false in any circumstances, the law limits unjustifiably the right to freedom of
expression as enshrined in section 16 of the Constitution’.198 Since the law of
defamation limits the right to freedom of expression in the interests of protecting the
right to dignity, the enquiry entails asking ‘whether an appropriate balance is struck
between the protection of freedom of expression on the one hand, and the value of
human dignity on the other’.199 The enquiry then proceeded along these lines:
(a) The right to freedom of expression is not principally interested in protecting false
and injurious statements. So, the appellants’ argument went, the common law of
defamation should require the plaintiff to establish the falsity of the defamatory
statement. If it does, it protects the right to reputation against injurious falsehoods
and does not limit the right to free expression. However, if it does not (as Bogoshi
held), it is not protecting an important constitutional interest (since the right to
reputation is not a right to a reputation based on falsehood) and is a limitation of the
right to free expression.200
(b) The common law accepts that truth is central to the balance between dignity
and free expression. It does so by recognising truth as a defence to defamation.
It does however put the burden of proving truth on the defendant.201 Proving the
truth or falsity of a statement can be difficult. This, in the current distribution of
the onus, is the defendant’s problem.
(c) Putting the risk of the failure to establish truth on the defendant will result in a
‘chilling effect’ on the publication of information. ‘A publisher will think twice
before publishing a defamatory statement where it may be difficult or impossible
to prove the truth of that statement and where no other defence to defamation
would be available’.202
(d) But this chilling effect is reduced considerably by the defence of reasonable
publication that was invented in Bogoshi. It permits a publisher who is uncertain
of proving the truth of a defamatory statement, nevertheless to publish where he
or she can establish that it is reasonable.203
(e) ‘At the heart of the constitutional dispute lies the difficulty of establishing the
truth or falsehood of defamatory statements. Burdening either plaintiffs or
defendants with the onus of proving a statement to be true or false, in
circumstances where proof one way or the other is impossible, therefore results
in a zero-sum game. Either plaintiffs will benefit from the difficulties of proof,
as happened previously under common law rules; or defendants will win, as the
. . . [appellants] propose. . . . Such a zero-sum result, in whomsoever’s favour,
198
Ibid [4].
199
Ibid [28].
200
Ibid [35]–[36].
201
Ibid [37].
202
Ibid [39].
203
Ibid.
371
fits uneasily with the need to establish an appropriate constitutional balance

between freedom of expression and human dignity.’204
(f) The defence of reasonable publication developed in Bogoshi avoids a zero-sum
result and strikes a balance between the constitutional interests of plaintiffs and
defendants.205
Khumalo can be read as holding that the Bill of Rights must be applied directly to the
common law wherever appropriate. It must be applied, in other words, in many (perhaps
most) of the horizontal cases that have previously been treated as indirect application
cases (ie, cases involving private litigants relying on common-law provisions).
However, the decision also shows that there is not much difference between the two
forms of application. Direct application takes us to exactly the point that Bogoshi
reached through (its somewhat reluctant form of) indirect application. This is not
particularly surprising. Though apparently methodologically distinct, direct and indirect
application of the Bill of Rights have the same goal: development of a body of law in
conformity with the Bill of Rights.
(iv) The state of the law of defamation

Bogoshi and Khumalo have largely settled the law relating to the liability of the media
for defamation. Recalling the state of the law prior to 1994 as set out in Table 1 above,
a distinction is still made between two types of defendant. Broadly, in both media and
non-media cases the analysis of the lawfulness of the defendant’s conduct depends on a
balancing of the right to dignity, including as it does the right to reputation on the one
hand, and the right to freedom of speech, on the other.206 As regards fault, media
defendants are no longer subject to strict liability and can rely, like other defendants, on
an absence of the requisite degree of fault. In addition, the balancing of press freedom
against individual dignity requires making available to the media a defence of
‘reasonable publication’: publication of defamatory statements will not be unlawful if
the defendant shows that ‘upon a consideration of all the circumstances of the case, it is
found to have been reasonable to publish the particular facts in the particular way and at
a particular time’.207 This defence is not available to other defendants. The form of fault
in defamation actions against the media is therefore negligence rather than intention to
harm.208
Khumalo is not a decision on the state of the law of defamation outside the context of
the media. A number of issues remain to be considered in this context. Is the rebuttable
presumption of intent a justifiable limitation of freedom of expression? There may be
204
Ibid [42] (footnote omitted).
205
Ibid [42].
206
Khumalo (note 15 above) [25] and [27].
207
Bogoshi (note 175 above) 1212G–H. The defence applies to untrue statements or statements that cannot be
proved to be true.
208
Mthembi-Mahanyele v Mail & Guardian Ltd (note 173 above) [46]. Lewis JA continues to note that ‘fault
need not be in issue at all if in the particular circumstances anterior inquiry shows that the publication is lawful
because it is justifiable. Bogoshi indicates that the reasonableness of the publication might also justify it. In
appropriate cases, a defendant should not be held liable where publication is justifiable in the
circumstances—where the publisher reasonably believes that the information published is true’ ([47]). She also
notes ([62]) that the unlawfulness and fault inquiries ‘inevitably overlap’ ([62]). This conclusion is shared by
Davis JA in Sayed (note 171 above) 63F–G: ‘If the publication is lawful because it is reasonable, can it therefore
ever be contended that there was an intention to defame, given that reasonableness will already be raised as a
defence thereto? In summary, it seems that the one requirement might well render the other redundant’.
372
Expression 16.5
something to be said for the view that those who complain of injury to the right to
reputation should be in no better position than those who complain of the breach of any
other right. However, in Prinsloo v Van der Linde209 the Constitutional Court held that
there is nothing rigid or unchanging in relation to the question of the incidence of the
onus of proof in civil matters.210 As long as the imposition of an onus is not arbitrary,
there will be no breach of the equality clause. In defamation cases, as in all delicts where
fault in the form of intent is a requirement, the defendant has easy access to facts that
may show an absence of the animus iniuriandi. The plaintiff, on the other hand, will find
it enormously difficult to prove the requisite state of mind. It therefore does seem logical
to require the defendant to rebut a presumption in this regard.
A differentiation must be made between defamation in a political context and
defamation generally. In Mthembi-Mahanyele the Supreme Court of Appeal put the
question thus: ‘when dealing with freedom of expression in a political context (political
speech) should a member of government’s right to protect her reputation be eclipsed by
the need for robust criticism and comment in a democratic state where the public’s right
to be informed, and to free debate, is vital?’211 From a constitutional point of view,
political speech weighs heavier than ordinary speech. The right to a good name and
reputation, on the other hand, forms part of the right to human dignity, but does not lie at
the heart of it. The common law of defamation does not sufficiently distinguish between
the weight of these competing constitutional values. In short, where the expression is of
a political nature and it impairs the reputation of a person, the rules cannot be the same
as when the statement is non-political and it strikes at the dignity of the individual.
Therefore, so the argument goes, greater protection must therefore attach to expression
in the ‘context of political activity’,212 and greater protection to individual dignity in
non-political contexts.
According to Lewis JA in Mthembi-Mahanyele the Constitution’s interest in free and
robust political discussion required recognition of ‘a special defence attaching to
political information, such that the publication of defamatory matter in circumstances
where it is justifiable (reasonable) is not actionable’.213 The factors to be considered in
the assessment of justification are the following:
where publication is justifiable in the circumstances the defendant will not be held liable.
Justifiability is to be determined by having regard to all relevant circumstances, including
the interest of the public in being informed; the manner of publication; the tone of the
material published; the extent of public concern in the information; the reliability of the
source; the steps taken to verify the truth of the information (this factor would play an
important role too in considering the distinct question whether there was negligence on the
part of the press, assuming that the publication was found to be defamatory); and whether
the person defamed has been given the opportunity to comment on the statement before
209
Prinsloo v Van der Linde 1997 (3) SA 1012 (CC).
210
Ibid [37].
211
Note 173 above [6] (Lewis JA).
212
Holomisa (note 39 above) 864I.
213
Note 173 above [64] (Lewis JA, Howie P concurring). Mthiyane JA (Mpati DP concurring) expressed
agreement with this paragraph of the judgment at [117] but holding that this should not be considered ‘a special
defence outside of or in addition to what was said in Holomisa [note above] and ultimately endorsed in Bogoshi.
As it was stated in Bogoshi . . . ‘greater latitude is usually allowed in respect of political discussion’. With such
recognition, political speech is, in my view, adequately catered for in the defence of reasonableness introduced in
Bogoshi’ (footnotes omitted).
373
publication. In cases where information is crucial to the public, and is urgent, it may be
justifiable to publish without giving an opportunity to comment.214
The Supreme Court of Appeal upheld the offence of criminal defamation in S v Hoho.215
The applicant, who was convicted of criminal defamation after publishing allegations of
bribery, corruption and other improprieties about prominent political leaders, raised the
question of whether defamation may still be considered a crime. The court held that, in
addition to not having been repealed as a crime by changing convictions of the
community, the crime of defamation is consistent with our Constitution as a justifiable
limitation on the right to freedom of expression. Where the impairment of dignity is
serious enough to justify a charge of criminal defamation, the limitation placed by this
offence on freedom of expression will be justifiable.
(d) Prior restraints on publication

Prior restraints are restraints imposed on expression prior to its publication or
dissemination. Because they operate to censor speech, such restraints are subject to a
heavy presumption against their constitutionality. Because they constitute a drastic
interference with freedom of speech they should only be ordered where there is a
substantial risk of grave injustice.216
A ban on publication can only be considered if there a demonstrable relationship
between the publication and the prejudice that it might cause, substantial prejudice if it
occurs, and a real risk that the prejudice will occur.217
In Print Media, the fact that an administrative scheme required permission to publish
certain material (‘containing’ degrading sexual conduct) made it a system of prior
restraint and a limitation of the right to freedom of expression:
Under this model of prior classification, control is exercised before publication by an
administrative body under the control of the executive branch of government. In essence, the
person seeking to publish is required to submit the material to the administrative body,
which decides whether to grant or deny permission to publish. If the administrative body
concludes that the material is prohibited, the prospective publisher is prevented from
publishing it. This amounts to a form of prior restraint, which is an inhibition on expression
before it is disseminated.218
The limitation was held not to be justifiable. The purposes of the regulation, which
included protecting children from exposure to harmful or age-inappropriate material and
to ban child pornography, were acceptable.219 These purposes could however be
achieved in a manner that did less harm to the right to freedom of expression, such as
interdicts and controls over the production and importation of such material.
Prior restraint is often used to prevent publication of defamatory or
privacy-invading material. Such interdicts may in some circumstances be a better
way to protect individuals against defamatory publications than actions for damages.
On the other hand, interdicts limit the free flow of information to a greater extent
than damages. From a free speech perspective, an award of damages is undoubtedly
214
Ibid [68].
215
S v Hoho 2009 (1) SACR 276 (SCA).
216
Midi Television (note 40 above) [15]; Print Media (note 24 above) [46].
217
Midi Television (note 40 above) [19].
218
Print Media (note 24 above) [16] (footnotes omitted).
219
Ibid [56].
374
Expression 16.5
the less infringing alternative.220 Also, since the Bogoshi judgment requires
newspapers to act reasonably, they will often have to afford the affected person the
opportunity to respond—and therefore time to obtain an interdict—before an article
is published. In such urgent applications, the courts should be careful not to err on
the side of safety, by granting an interdict in circumstances where intended
publication is not clearly unlawful. In determining unlawfulness, the factors we
mentioned above in the section on defamation must be taken into account.
(e) Other common-law restrictions on expression

In S v Mamabolo a reading-down was employed to save the common-law offence of
scandalising the court in the form of contempt ex facie curiae from constitutional
invalidity.221 The Constitutional Court held that, under the influence of the right to
freedom of expression, the offence had to be narrowly defined. It could be committed
only when the offending conduct really was likely to damage the administration of
justice: ‘Ultimately . . . the real question is whether the trier of fact has been satisfied,
with the requisite preponderance depending on the nature of the case, that the publisher
of the offending statement brought about a particular result. In the case of scandalising
the court that result must have been to bring the administration of justice into
disrepute.’222
Reading down is usually employed to avoid a finding that a law limits a right. In
Mamabolo, the particular interpretation of the offence still resulted in the limitation of
the right to freedom of expression. The court stated, in the ‘narrow category of
egregious cases’ where a speaker will be guilty of scandalising the court, the right to free
expression is limited.223 The limitation is however justifiable, principally because the
narrow interpretation of the ambit of the offence results in a minimal interference with
the right in the interests of protecting the legitimacy of the judicial process.224
220
See, Romero v Gauteng Newspapers Ltd 2002 (2) SA 431 (W) where Wunsh J held that court documents
containing defamatory or disparaging information should not be published before they are dealt with in open
court. This will allow sufficient time for an affected party to respond. Further, that statements may not be
published concerning a matter that is sub judice which would affect the administration of justice, ie, if the
publication could influence the case.
221
S v Mamabolo 2001 (3) SA 409 (CC).
222
Ibid [44]. It is difficult to reconcile Mamabolo with the remarks of Chaskalson P in Executive Council of the
Western Cape Legislature v President of the Republic of South Africa 1995 (4) SA 877 (CC). In this case, a
Western Cape politician, Pieter Marais, who was a party to the matter, said that their side had a good chance of
winning unless the Constitutional Court made a ‘political decision’. Chaskalson P reacted strongly to this
incident and stated ([122]) that it was ‘irresponsible to make unfounded statements which impugn the integrity of
the court’. In our view, the courts have the final word, but they are by no means solely responsible for interpreting
the Constitution. In the conversation about the meaning of the Constitution, the courts should therefore set an
example by avoiding intimidatory language. See also Holomisa (note 39 above) 860E where Cameron J stated
that few would suggest that South African courts should follow the severe curtailment of the courts’ contempt
jurisdiction in the United States.
223
Note 221 above [47].
224
Ibid [48].
375
There are a number of other offences that may open to challenge on the basis of the
right to freedom of expression. Several common-law offences, such as treason, sedition,
defeating or obstructing the course of justice and blasphemy, could impact on the
exercise of the right to freedom of expression. However, if applied with due regard to
the spirit, purport and objects of the right to freedom of expression, none of these
offences, with the possible exception of blasphemy,225 is constitutionally objectionable.
225
The crime of blasphemy protects only the beliefs of Christians and therefore violates the equality clause.
On O’Regan J’s approach to the interpretation of the right to freedom of religion in S v Lawrence 1997 (4) SA
1176 (CC), the crime displays a lack of even-handedness toward or an inequitable treatment of religions. See,
further, Chapter 15 above. A solution might be the development of the offence to include all religions:
R Malherbe ‘The Mohammed Cartoons, Freedom of Expression and the Infringement of the Right to Religious
Dignity’ 2007 TSAR 332, 334.
376
Chapter Seventeen
Assembly, Demonstration and

Petition
By Stuart Woolman*
17.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 377

17.2 The regulation of assembly . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 380
(a) Apartheid and the old regulatory framework . . . . . . . . . . . . . . . . . . . . . 380
(b) Democracy and the new statutory framework . . . . . . . . . . . . . . . . . . . . 381
(i) Provenance of the Regulation of Gatherings Act . . . . . . . . . . . . 381
(ii) Analysis of the Regulation of Gatherings Act . . . . . . . . . . . . . . . 381
17.3 Assembly analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 383
(a) The content of the right . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 383
(i) Internal modifiers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 384
(aa) Peacefully . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 384
(bb) Unarmed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 384
(ii) Assembly. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 344
(iii) Demonstrations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 386
(iv) Picketing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 387
(v) Petitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 387
(b) Limitations on the right . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 387
(i) Private property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 388
(ii) Security and order. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 389
(iii) Content neutrality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 390
(iv) Time, place and manner restrictions. . . . . . . . . . . . . . . . . . . . . . . . . 391
Assembly, demonstration, picket and petition

17. Everyone has the right, peacefully and unarmed, to assemble, to
demonstrate, to picket and to present petitions.
17.1 INTRODUCTION
Protests, assemblies and mass demonstrations played a central role in South African
liberation politics. Now that the battle for liberation has been won, and all possess the
franchise, there might have been a sense that demonstrations would diminish in pitch
and frequency. On the contrary, mass protests continue to be an important form of
* Elizabeth Bradley Chair of Ethics, Governance and Sustainable Development. University of the
Witwatersrand, Johannesburg. This chapter is an abbreviated version of S Woolman ‘Freedom of Assembly’ in S
Woolman, M Bishop & J Brickhill (eds) Constitutional Law of South Africa 2 ed (2004). The chapter was
updated for the sixth edition by Iain Currie.
377
political engagement. Organised labour, landless people, anti-privatisation movements,

students, squatters, and even the police, have used demonstrations to press their
demands. The continued vitality of assembly in South Africa reflects, in part, its
essential role in any liberal democracy.1
Freedom of assembly creates the space both to speak and to be heard. A single voice
is likely to be drowned out in our polity. A choir is far more likely to get its message
across.2 Power in modern nation states invariably concentrates in and around large
social formations. As a result, meaningful dialogue often requires the collective efforts
of demonstrators, picketers and protestors.3
Because participatory democracy in a nation of 45 million people requires mass
action, assembly remains an indispensable medium for critical engagement with our
fellow citizens.4 Although 45 million South Africans can get it wrong, democratic
theory is predicated upon the notion that the more we discuss the ideas we seek to put
into practice, the better our decisions are likely to be. And if assemblies and
demonstrations do nothing else, they draw attention to issues of moment and generate
debate.
Freedom of assembly provides an effective means of communication for those who
feel that their demands are not being given serious consideration by the state. Assembly
is often used by discrete minorities, or so-called ‘out-groups’, which find it difficult to
organise and to present their concerns within the confines of representative politics.5 For
these ‘out-groups’, the freedom to assemble makes democracy visible and counters
feelings of helplessness and isolation.6 One of the primary consequences of minorities’
subjective experience of empowerment is that majority rule is stabilised. By allowing
minorities to influence—even indirectly—the majority’s decisions, the state’s general
exercise of power becomes more legitimate.7
1
S v Mamabolo 2001 (3) SA 409 (CC) [50]: ‘That freedom to speak one’s mind is now an inherent quality of
the type of society contemplated by the Constitution as a whole and is specifically promoted by the freedoms of
conscience, expression, assembly, association and political participation protected by ss 15–19 of the Bill of
Rights.’
2
See S v Turrell 1973 (1) SA 248 (C), 256: ‘Free assembly is a most important right for it is generally only
organised public opinion that carries weight and it is extremely difficult to organise it if there is no right of public
assembly.’
3
See South African National Defence Union v Minister of Defence 1999 (4) SA 469 (CC) (‘SANDU’) [8]
(expressive rights in the Constitution—of which assembly is one—‘implicitly recognise the importance, both for
a democratic society and for individuals personally, of the ability to form and express opinions, whether
individually or collectively, even where these views are controversial.’) See also South African National Defence
Union v Minister of Defence 2004 (4) SA 10 (T); National Education Health and Allied Workers Union v
University of Cape Town 2003 (3) SA 1 (CC); NUMSA v Bader Bop (Pty) Ltd 2003 (3) SA 513 (CC).
4
See SANDU (note 3 above) [7] which holds that freedom of expression—and related guarantees of assembly,
association, belief, and the franchise—lie ‘at the heart of a democracy.’ Freedom of expression, according to the
Constitutional Court, ‘is valuable for many reasons, including its instrumental function as a guarantor of
democracy, its implicit recognition and protection of the moral agency of individuals in our society and its
facilitation of the search for truth by individuals and society generally. The Constitution recognises that
individuals in our society need to be able to hear, form and express opinions and views freely on a wide range of
matters.’ See also SATAWU v Garvas 2013 (1) SA 83 (CC) [65].
5
SATAWU v Garvas (note 4 above) [61], [63] (right exists primarily ‘to give a voice to the powerless’, often
used by people ‘who do not necessarily have other means of making their democratic rights count’).
6
69 BVerfGE 315 (1985), 345 Brokdorf (‘The unrestricted exercise of this freedom . . . has the effect of
preventing a feeling of impotence and dangerous tendencies of general dissatisfaction with the state.’)
7
See JN Pandey Constitutional Law of India 29 ed (1996) 118 (expressive rights enable a political system to
negotiate social change and forestall revolution).
378
Assembly, Demonstration and Petition 17.1
In addition to providing an alternative mode of communication for marginal groups,

freedom of assembly also ensures the continuation of communication between voters
and representatives. Assemblies not only serve as warnings to the government of the
unpopularity of some of its policies. They enable the government to identify pressing
problems that arise in the time between elections. Freedom of assembly thereby furthers
accountability and responsiveness.
These rather arid, academic arguments miss much of that which makes assemblies,
demonstrations, pickets, processions and marches truly dynamic and powerful. And that
is the nature of the crowd. The crowd draws its power, as Cannetti notes, from its
erasure of borders between individuals, the gravitational pull that an expanding, living,
moving group has on those around it, and the incipient threat of violence that causes all
around to sit up and take notice.8
Cannetti’s observations about crowds suggest why, in South Africa, assemblies
remain a potent political tool. In the advanced western democracies, most
communication, political and otherwise, is electronically disseminated. Citizens
withdraw into private spaces and watch. Assembly has, consequently, a greatly
diminished role to play with respect to political mobilisation. In South Africa, many
citizens lack meaningful access to such goods as computers, televisions and newspapers.
Connections stay corporeal; television is no synecdoche for community. Assembly, the
poor person’s media, remains the best means for making the needs and the will of the
majority heard: pickets, marches, demonstrations and processions are fires that cannot
be so easily put out—or turned off.
Crowd action—loud, noisy, disruptive, and sometimes dangerous—ought to be
viewed, as Kraemer persuasively argues, as a ‘direct expression of popular
sovereignty.’9 By creating political space for crowd action, s 17 vouchsafes a
commitment to a form of democracy in which the ‘will of the people’ is not always
mediated—read controlled—by political parties and the elites that run them.
The philosophical justifications for freedom of assembly are not—necessarily—
exhausted by the freedom’s political utility. All individuals develop their personality
and unique talents in the context of groups.10 Goods such as companionship and
8
E Cannetti Crowds and Power (trans C Stewart, 1962) 22: ‘[E]ruption . . . the sudden transition from a closed
into an open crowd . . . is a frequent occurrence. . . . A crowd quite often seems to overflow from some
well-guarded space into the squares and streets of a town where it can move about freely, exposed to everything
and attracting everyone. But more important than this external event is the corresponding inner movement: the
dissatisfaction with the limitation of the number of participants, the sudden will to attract, the passionate
determination to reach all men’.
See also In re Munhumeso 1995 (1) SA 551 (ZS), 557. The Munhumeso court dryly observes that: ‘A procession,
which is but an assembly in motion, is by its very nature a highly effective means of communication, and one not
provided by other media. It stimulates public attention and discussion of the opinion expressed. The public is
brought into direct contact with those expressing the opinion’); Ezelin v France (1991) 14 EHRR 362 [32] (right
of assembly often exercised through public procession). But see Fourways Mall (Pty) Ltd v South African
Commercial Catering 1999 (3) SA 752 (W), 759 (neither Labour Relations Act 66 of 1995 nor s 17 provides
protection for pickets that violate conditions of court order and proceed in a manner that interferes with the rights
of the public and tenants of a shopping mall; assault and intimidation are not acceptable forms of expressive
conduct.)
9
See L Kraemer The People Themselves: Popular Constitutionalism and Judicial Review (2005).
10
Associations—of which assemblies are a subset—are constitutive of the self. See Chapter 18 below.
379
recreation are as important as any other.11 They make us human. Such goods are also
worthy of constitutional protection.12
17.2 THE REGULATION OF ASSEMBLY
(a) Apartheid and the old regulatory framework

While assemblies may have played a central role in anti-apartheid politics, they played
that role almost entirely without legal sanction. From the 1920s onward, the government
enacted repressive law after repressive law in a largely successful effort to stifle
dissent.13 The promulgation of anti-assembly legislation accelerated dramatically after
the National Party took power in 1948.
The National Party began its campaign to eviscerate the freedom to assemble with the
Suppression of Communism Act 44 of 1950.14 Section 9 of this Act allowed the
Minister of Justice to prohibit a gathering or an assembly whenever there was, in his
opinion, reason to believe that the objects of communism would be furthered at such a
gathering.15 A few years later Parliament—in response to the ANC’s 1952 defiance
campaign—passed the Criminal Law Amendment Act 8 of 1953. The Act increased
penalties for crimes committed in the context of political protest.16 More serious
limitations followed with the passage of the Riotous Assemblies Act 17 of 1956.
Open opposition to the government was met with further restrictions in the 1960s and
1970s.17 By the late 1970s it had become almost impossible to obtain permission to
assemble.18 Attempts at reform in the early 1980s failed.19 In the mid-1980s, as South
11
See, for example, Coates v Cincinnati (1961) 402 US 611, 615 (the freedom to assemble protects the ‘right
to gather’ for purely social aims; fact that such aims may serve no meaningful political end and may annoy
non-participants is not a legitimate basis for restricting a gathering.) See also Stankov and the United
Macedonian Organisation Ilinden v Bulgaria (2001) ECHR 563 [86] (‘Freedom of assembly as enshrined in
Article 11 of the Convention protects a demonstration that may annoy or give offence to persons’). For more on
the relationship between assembly and personality development, see AE Schilder Het recht tot vergadering en
betoging (1989) 120; T Mauntz & G Durig Grundgesetz Kommentar 8 (1991) 88.
12
It is, of course, another question as to whether assemblies that promote individual flourishing ought to
trigger the protection afforded by s 17. There are good reasons to hesitate before we extend the ambit of s 17 to
cover assemblies that lack even the most attenuated connection to the political process. Too broadly construed a
right to assemble has the potential to weaken our commitment to assembly as a form of political participation.
13
On restrictions on assemblies prior to 1950, see A Mathews Law, Order and Liberty in South Africa (1971)
240–2, 249–50; Dugard Human Rights 186–91.
14
The Act was later incorporated into the Internal Security Act of 1982.
15
The Minister could, in terms of ss 9 and 5 of the Act (which applied to listed persons), give notice to a
person prohibiting him from attending any gathering. The provisions gave rise to numerous court cases involving
the definition and meaning of the word ‘gathering’. See, for example, S v Meer 1981 (4) SA 604 (A).
16
The Internal Security Act 74 of 1982 was designed to achieve a similar result. The judiciary, on occasion,
saw a political motive as an aggravating factor in sentencing. See E Cameron ‘Civil Disobedience and Passive
Resistance’ in H Corder (ed) Essays on Law and Social Practice in South Africa (1988) 219, 231.
17
The General Law Further Amendment Act 92 of 1970 required that assemblies receive both the local
authority’s consent and the approval of a magistrate in the district in which the assembly was to take place (s 15).
Under the Internal Security Acts of 1976 and 1982, the Minister annually issued a notice that declared outdoor
gatherings illegal —- save for gatherings for bona fide sporting and religious purposes —- unless permission was
obtained from a magistrate.
18
See H Corder & D Davis ‘A Long March—Administrative Law in the Appellate Division’ (1988) 4 SAJHR
281, 289.
19
Not only did the Rabie Commission of Inquiry into Security Legislation (1979–1982) fail to deliver the
hoped for reform, it could be argued that it led to an even more repressive regime of laws. See, for example, the
Internal Security Act 74 of 1982 and the Demonstrations In or Near Court Buildings Act 71 of 1982 that resulted
from the recommendations of the Commission.
380
Africa’s political crisis deepened and it appeared that assembly law could get no worse,
the government responded by issuing extremely restrictive State of Emergency
regulations under the Public Safety Act 3 of 1953.20
Real change began only in February of 1990, with the agreement of most political
parties to the National Peace Accord. The Accord marked South Africa’s first successful
attempt to reconcile the rights of assemblers with the state’s interest in public order.
(b) Democracy and the new statutory framework

(i) Provenance of the Regulation of Gatherings Act
The next two attempts to bring South African assembly jurisprudence into the twentieth
century took place under the auspices of the Commission of Inquiry Regarding the
Prevention of Public Violence and Intimidation (‘Goldstone Commission’). The
Goldstone Commission’s first endeavour was to convene a multinational panel of
experts to thrash out a new approach to assembly.21 The Commission and its
multinational panel then drafted new legislation intended to give effect to the principles
enunciated in the panel’s testimony. The result was the Goldstone Commission’s
greatest achievement: the Regulation of Gatherings Act 205 of 1993 (‘RGA’).
(ii) Analysis of the Regulation of Gatherings Act

To Parliament’s credit, the legislation retains the most interesting aspect of the panel’s
report: namely, the notion of ‘demonstration as of right’. Demonstration as of right
means that the ability to hold a public gathering, assembly or demonstration is not
necessarily contingent on approval by the state. However, the RGA qualifies and
circumscribes this right in a manner that blunts its significance.22 The legislation
contains several other provisions that reflect the difficulty that present political actors
and the current security establishment have had in making a complete break with the
past.
The RGA requires that notice of gatherings be provided to local authorities and police
seven days in advance.23 This notice period creates doctrinal problems. Assembly
doctrine must take account of the fact that assemblies are often an immediate response
20
Regulation 7(1), Proclamation 109 of 1986 issued in terms of the Public Safety Act, provided that ‘[t]he . . .
Commissioner may for the purpose of the safety of the public . . . issue orders . . . (bA) whereby any particular
gathering, or any gathering of a particular nature, class or kind, is prohibited at any place or in any area specified
in the order.’
21
See P Heymann (ed) Towards Peaceful Protest in South Africa: Testimony of a Multinational Panel
Regarding the Lawful Control of Demonstrations in the Republic of South Africa before The Commission of
Inquiry Regarding the Prevention of Public Violence and Intimidation (1993) (‘Heymann Report’).
22
Under the RGA, demonstrations require no notification at all. But do not be misled. Demonstrations consist
of 15 people or fewer (s 1(xi) and (v)). Gatherings, however, are subject to quite onerous conditions. See s 4(3).
Unlike a demonstration, the notice of gathering must be given either seven days in advance or 48 hours in
advance. If the latter, the authorities have the right to prohibit the gathering. Thus, the ability of the drafters to
assert that the legislation protects ‘demonstration as of right’ has as much to do with a definitional exercise that
limits the scope of demonstrations as it does with any principled commitments. Put more bluntly, the intention of
the legislature was to limit the number of people who could assemble freely, without requiring prior notice to the
authorities. No meaningful semantic distinctions with respect to types of assembly are offered by the RGA. Given
the absence of any explanation for the distinctions made by the RGA, the 15-person threshold for demonstrations
must be viewed as arbitrary.
23
Section 3(2).
381
to a state action that touches a raw nerve in some segment of the body politic.24 Recall
that we protect assemblies because of their capacity to communicate (some part of) the
public will to the state, and in so doing, prevent the government from undertaking or
continuing a particular course of action which lacks either public support or some other
form of legitimacy. The seven-day notice period not only works to suppress dissent, it
grants the government a grace period within which the government can turn intention
into action before the public can register its collective ire.25 The manner in which the
RGA seven-day notice period frames our nascent assembly jurisprudence is difficult to
square with the how the courts have construed the Constitution’s commitment to
expression, in particular, and an open and democratic society, in general.26
The RGA imposes more onerous provisions on gatherings scheduled with less than
48 hours’ notice. Failure to meet the 48-hours-in-advance deadline for notice gives the
local authorities almost unfettered discretion to issue blanket prohibitions (s 3(2)). This
extraordinary power to silence opposition places an unnecessarily blunt cudgel in the
hands of individuals unlikely to place expressive interests on a par with public order
concerns. The 48-hour notice provisions bode ill for freedom of assembly in South
Africa. Even expedited judicial review—which, as we have seen, has been almost
impossible to secure—is no match for local authorities bent on stamping out the spread
of dissent through the use of prohibition orders.27
Provisions of the RGA making organisers of gatherings liable for ‘riot damage’
caused during the gathering, jointly and severally with participants in the gathering who
caused the damage, have been held to be a justifiable limitation of the right to freedom
of assembly.28
At first glance, the RGA gives every indication that Parliament had tackled and
solved the problem associated with the use of deadly force to disperse demonstrations.
Section 9(2)(e) provides that the force necessary to prevent the killing or serious injury
of persons, or the destruction or serious damage to immovable property or valuable
movable property must be ‘necessary’, ‘moderated’ and ‘proportionate to the
circumstances’. It thereby places some ‘philosophical’ limits on deadly force. However,
s 9(2)(d) expressly allows the use of ‘firearms and other weapons’ for crowd control and
permits the use of force where there are apparently ‘manifest intentions’ to kill or to
24
According to Article 8(1) of the Basic Law, no permission from the state is necessary for using public streets
for protests: ‘All Germans have, without notification or permission, the right to assemble peacefully and
unarmed.’ See T Feldmeier Politische Meinungsäusserung auf Offentlichen Strassen (1982) 164. More
importantly for the purposes of this analysis of the RGA’s notice requirements, the German Constitutional Court
has held that the administrative procedures surrounding the right to assemble must be assembly-friendly. See
Brokdorf (note 6 above) 355. The German Constitutional Court has derived duties to co-operate for both
assembly leadership and the police from statutory notification requirements.
25
But see RGA, s 12(2) (creates a very narrow spontaneity exception).
26
The courts have recognised the need to create rules that simultaneously encourage expression and protect
those whose interests might otherwise be prejudiced. See, for example, Mineworkers Investment Co (Pty) Ltd v
Modibane 2002 (6) SA 512 (W) [25] (citing National Media Ltd v Bogoshi 1998 (4) SA 1196 (SCA), 1210).
27
The Constitutional Court has already recognised that the use of expedited procedures poses a unique threat
to the exercise of fundamental rights. See, for example, S v Mamabolo (note 1 above) (while the protection of
reputation justifies placing limits on speech that scandalises a court, the protection of reputation does not justify
expedited procedures that fail to take account of the expressive interests).
28
SATAWU v Garvas (note 4 above). See, further, 17.3(b)(ii) further below in this chapter.
382
Assembly, Demonstration and Petition 17.2–17.3
seriously injure persons, or to destroy or seriously damage property.29 Sections 9(3) and
13(1)(b) of the Act insulate the common-law defences of self-defence, necessity and
protection of property from the effect of s 9(2)(e) of the Act. Read together, these
provisions create innumerable opportunities for the police to use deadly force to curb
‘potentially violent’ or ‘potentially destructive’ demonstrations. It is hard to see how
these provisions would not be held to be constitutionally infirm.30 As for the other
provisions that permit the use of deadly force for the purposes of crowd control, such
provisions must be read down so as to ‘exclude the use of firearm or similar weapon’
unless a law enforcement officer has ‘reasonable grounds for believing (a) that the
suspect poses an immediate threat of serious bodily harm to him or her, or a threat of
harm to members of the public; or (b) that the suspect has committed a crime involving
infliction or threatened infliction of serious bodily harm.’31 To the extent that they
cannot be read down, these provisions violate the rights to dignity, life, and freedom and
security of the person.32
The RGA provides for summary intervention by a judicial officer.33 While summary
judicial interventions per se are not constitutionally infirm, the Constitutional Court has
found broadly similar procedures—in the context of expressive conduct and contempt of
court—unconstitutional.34
17.3 ASSEMBLY ANALYSIS
(a) The content of the right

The approach to assembly analysis in this chapter first establishes the categories of
assembly, demonstration, picket and petition that serve the values which animate the
freedom and those categories of assembly, demonstration, picket and petition that fall
outside the freedom’s protective ambit. Only then may we assess the merit of arguments
in support of laws that limit the exercise of this right.35
29
See Mpongwana v Minister of Safety and Security 1999 (2) SA 794 (C), 805 (duty imposed on the police by
s 9(1)(f) of the RGA to take all reasonable steps to protect persons and property might well be a factor in deciding
whether police had duty of care, for the purpose of proving a cause of action in delict, where use of deadly force
results in harm).
30
See S v Walters (s 49(2) of the Criminal Procedure Act 51 of 1977 (prior to its amendment) unconstitutional
to the extent that it authorised the use of deadly force where there was no threat of serious bodily harm). In light
of Walters, the authorisation in s 9(2)(d) of the RGA to use firearms where there is merely an intention to ‘destroy
. . . or damage property’ must be viewed as constitutionally suspect. The insulation of common-law doctrines that
sanction the use of deadly force in order to protect private property also fails the Walters test.
31
Govender v Minister of Safety and Security 2001 (4) SA 273 (SCA) [21] and [24]. See also Walters (note 30
above) [38]–[39].
32
Walters (note 30 above) [3]–[7], [40]–[41], [45]–[46].
33
See RGA, ss 4(4) and 6(1).
34
S v Mamabolo (note 1 above) [53]–[58] (summary procedures for trial and punishment of contempt of court
committed in facie curiae are inquisitorial, inherently punitive, unfair, and not reconcilable with the basic
standards of fairness called for by s 35(3)).
35
A good example of the consequences of failing to distinguish between the distinct requirement of rights
analysis and limitations analysis in the context of the right to assemble is Acting Superintendent-General of
Education of KwaZulu-Natal v Ngubo 1996 (3) BCLR 369 (N). In deciding that the freedom of assembly in the
interim Constitution ‘implicitly extends no further than is necessary ‘‘to convey the [demonstrator’s] message’’’
(375), the court confuses the basis for the right to demonstrate and the conditions under which that right may be
justifiably restricted.
383
(i) Internal modifiers

Much is made of the violence implicit in every act of state and every rule of law. It
would be churlish, however, to deny that crowds of demonstrators, protestors and
picketers are not moved by violence, do not communicate through violence or do not use
violence to seduce. The internal modifiers in s 17 recognise ‘violence’ as an intrinsic
element of assembly, demonstration and pickets and seek not to suppress it entirely, but
to channel it, to make it a part of the cut and thrust of democratic politics.
(aa) Peacefully
One readily identifiable class of assemblies, demonstrations and pickets excluded from
the protection of the right are those that are not peaceful. So, for example, the High
Court in Fourways Mall (Pty) Ltd v South African Commercial Catering found that
neither the Labour Relations Act nor s 17 countenances assault and allows picketers to
employ tactics that intimidate the general public and thereby interfere with the rights of
other tenants of a shopping mall.36
German assembly jurisprudence offers additional guidance. In Germany, an assembly
is deemed non-peaceful only if acts of physical violence against person or property are
committed or threatened.37 Consistent with our concerns regarding out-groups and
intra-election voter-representative communication, Hoffmann-Riem argues that it
should be kept in mind that assembly is primarily used by those who are dissatisfied
with the status quo.38 A generous interpretation of the ‘peaceful’ proviso is therefore
necessary to prevent the state from exploiting this requirement in order to suppress
unpopular positions. This generous interpretation ensures that if some members of an
assembly resort to violence, while the majority of the participants remain peaceful, the
assembly remains protected.39 This result is necessary to prevent a peaceful assembly
from being hijacked by violent supporters, opponents or agents provocateurs. When
such a hijacking occurs the police must attempt to act solely against the violent
minority, without depriving the rest of the assembly of protection.40
(bb) Unarmed
Another readily identifiable class of assemblies, demonstrations and pickets excluded
from the protection of the right are those in which the participants are armed. Once
36
Note 8 above.
37
In German assembly jurisprudence, not every unlawful disturbance of law and order or infringement of the
rights of others is understood to be ‘violent’. An assembly is deemed non-peaceful only if acts of physical
violence against person or property are committed or threatened. See Brokdorf (note 6 above) 360; 73 BVerfGE
206 (1986), 248 (Mutlangen). ECHR jurisprudence is somewhat more restrictive—if only because the margin of
appreciation requires the court to defer, where appropriate, to the understanding of a domestic court. See Stankov
(note 11 above) [90]: ‘Where there has been incitement to violence against an individual or a public official or a
sector of the population, the State authorities enjoy a wider margin of appreciation when examining the need for
an interference with freedom of expression.’ However, recent ECHR decisions have found that authorities may
restrict or prohibit assemblies only where the state can demonstrate violent intent. The mere assertion that a
dissident group may destroy property, disturb the peace, or propagate separatist ideas are insufficient grounds for
limiting the right. See Stankov [77]–[112].
38
See W Hoffmann-Riem Reihe Alternativkommentare Kommentar zum Grundgesetz für die Bundesrepublik
Deutschland (1984) 753.
39
SATAWU v Garvas (note 4 above) [53] (an individual does not cease to hold the right to peaceful assembly
as a result of sporadic violence committed by others in the course of the demonstration if the individual in
question remains peaceful in his or her intentions and behaviour).
40
See Brokdorf (note 6 above) 361.
384
again, German assembly jurisprudence provides a bit more than the obvious gloss on
this internal modifier.41 In Germany, the use of protective devices by demonstrators
(such as shields) has been prohibited by the Assembly Act on the grounds that they
stimulate aggression among participants and onlookers by showing a readiness to
engage in violence.42 The carrying of defensive devices by demonstrators, however,
may be grounds for police action against the whole assembly—as opposed to acting
solely against the individuals carrying the defensive devices—only when it can be
shown that the demonstrators as a whole intend to provoke a response and are gearing
themselves up for a reaction from counter-demonstrators or the police.43 So understood,
the modifier ‘unarmed’ might even be read to prohibit the use of masks. Certainly
anyone familiar with the history of the Ku Klux Klan in the United States would
understand that the wearing of masks can be both an act of intimidation and an explicit
threat.44
(ii) Assembly
Comparative constitutional analysis suggests that of all the expressive rights (speech,
voting, political participation, religion, association) assembly may receive the least
amount of judicial solicitude. Part of the explanation for this diminished protection is
that assembly—like other forms of conduct—is often viewed merely as a condition for
freedom of speech, and that it is the content of the speech itself that is thought to be of
paramount importance. Stated another way, the courts have tended to view a political or
social gathering as important for what is said at the gathering rather than for the fact of
the gathering itself.45 This tendency in rights discourse towards (artificially) separating
the speech act from the surrounding conduct reflects a widespread and deeply embedded
bias against extending constitutional protections to groups.
History is, of course, no argument. There are various independent grounds for a right
to assemble: (a) to create space for the large, vocal social formations that service
representative democracies; (b) to act as a catalyst for debate; (c) to supplement
representative democracy through a form of direct democracy; (d) to empower
out-groups; (e) to enhance the stability and the legitimacy of the political processes by
allowing for the articulation of minority views; (f) to improve government
accountability and responsiveness between elections; (g) to channel the violence
inherent in mass action into a less dangerous and perhaps even constructive form; and
(h) to facilitate self-actualisation. None of these grounds is, I think, entirely reducible to
or exhausted by their service to expressive ends. All of these grounds, read together,
establish the protective ambit of the freedom of assembly.
A freedom to assemble defined in terms of the aforementioned goods—and one that
includes ground (h)—is open to the critique that there is very little by way of collective
activity that s 17 does not notionally protect. As a result, I am inclined towards a view of
41
See Article 2.3 VersammlG (prohibits the transportion, provision, or distribution of weapons to assemblies).
42
Article 17a VersammlG.
43
See Mauntz & Dürig (note 11 above) 26.
44
It goes without saying that not all masks are veiled threats, and that any law that treats them all as such ought
to be viewed as void for the overbreadth of its limitation of the right to assemble.
45
But De Jonge v Oregon 299 US 353 (1937) (right of free assembly separate and distinct from rights of free
speech and free press, and ‘equally fundamental’).
385
s 17 that emphasises its broadly political dimensions.46 Ground (h) may well warrant the
extension of the protection of s 17 to gatherings that serve recreational, developmental,
spiritual, cultural, commercial or academic ends, but a court should do so advisedly.47
(iii) Demonstrations
What is the difference between an assembly and a demonstration? In the absence of any
textual indication, or discussion in the travaux preparatoires, as to the meaning of each
word, common-sense understandings supplemented by their use as legal terms of art are
as good a place as any to start.
Demonstrations are associated with some form of support or opposition for a moral or
political position. Assemblies are gatherings that may or may not have political content.
South African case law offers no gloss or variation on this distinction.
The only definition of ‘demonstration’ in South African law appears in the Regulation
of Gatherings Act. The Act defines ‘demonstration’ as ‘any demonstration by one or
more persons, but not more than 15 persons, for or against any person, cause, action or
failure to take action.’ A ‘gathering’ is ‘any assembly, concourse or procession of more
than 15 persons in or on any public road as defined in the Road Traffic Act . . . , or any
other public place or premises wholly or partly open to the air.’
The RGA therefore distinguishes demonstrations from gatherings solely in terms of
size. As a general matter, there is no good reason to limit the extension of the term
‘demonstration’ to groups of 15 or less. The sole purpose of the RGA’s construction of
‘demonstration’ is to differentiate the conditions under which a group must subject itself
to the advance notification requirements of the Act and from conditions under which
groups are not so subject. Demonstrations—15 people or less—are not understood as
threats to public order and thus are not subject to advance notification. Gatherings of any
greater size, whatever their purpose, are.
As we have seen, the real purpose of this numerical definition of demonstration is not
to protect ‘demonstration as of right’. The clear intention of the legislature was to limit
the number of people who could assemble freely without providing prior notice. The
RGA offers no meaningful semantic basis for this distinction. As a general matter, the
RGA does not engage the different types of assembly nor does it attempt to craft
regulatory regimes that actually fit the varying aims of such assemblies. Given the
absence of any explanation in the RGA for the distinction made between demonstration
and gathering, the 15-person threshold for demonstrations must be viewed as arbitrary.
However, the consequences of the distinction between demonstrations and gatherings
for assembly analysis under the RGA are quite real. Persons convicted of participating
in a gathering without giving proper notification may receive a fine of up to R20 000
and/or a term of imprisonment of up to one year.48
Given the history of this country, and, in particular, the prominence of
demonstrations as a mode of mass political action, the drafters of the Constitution were
46
Even if the right is limited to assemblies with broadly political dimensions, it protects a broad array of
practices in public and in private. See, for example, Djavit An v Turkey (2003) ECHR 91 [56] (‘Freedom of
assembly . . . should not be interpreted restrictively. As such this right covers both private meetings and meetings
in public thoroughfares as well as static meetings and public processions; in addition, it can be exercised by
individuals and those organising the assembly.’).
47
The point, of course, is not that these activities do not deserve protection, but rather that they are best
protected by other rights or well-established non-constitutional bodies of law.
48
See s 12(1) of the RGA.
386
unlikely to invest ‘demonstration’ with such a narrow numerical extension. Even if we

accept the proposition that the state may legitimately restrict demonstrations as of right,
the definitions of demonstration and gathering under the RGA not only inhibit the
exercise of assembly but criminalise gatherings that pose absolutely no threat at all to
order, property or other public goods. While the definition of demonstration is
constitutionally suspect because it is radically under-inclusive, the definition of
gatherings under the RGA may well be found void for vagueness and overbreadth.49
(iv) Picketing
The right to picket is a noteworthy addition to our assembly jurisprudence. Primary and
secondary picketing are often used by organised labour to bring management to heel.50
One might have expected, therefore, that the right to picket would have been placed
within s 23. However, for reasons that remain unclear, the right to picket wound up in
s 17.
One obvious explanation for the placement is that the drafters wanted the right to
picket extended beyond the sphere of employer-employee relations. Section 17 invites
us to move from the particular—picketing in labour disputes—to the general—picketing
as a form of social protest directed by one private party against another.
(v) Petitions
Section 17 protects the right to petition.51 Many of our fellow citizens lack access to the
capital necessary to exploit electronic forms of communication or to employ lobbyists or
to make campaign contributions that will secure an audience with the right government
official. Petitions remain the most cost-effective means for tabling their concerns.
Of course, neither Parliament nor a provincial legislature nor a municipal council can
be expected to respond in detail to each and every petition. The administrative burden
would be too great. However, given that, it seems fair to require the government to
acknowledge receipt of the petition and to offer a considered, if abbreviated, response.
To deny the petitioner at least this much would render the right nugatory.
(b) Limitations on the right

Once the applicant can demonstrate that a gathering is entitled to the protection of s 17
and that law or conduct impairs the exercise of the right, the analysis shifts to s 36. The
following sections break down the justificatory analysis into categories that engage the
49
The definition of ‘gathering’ under the RGA subjects each and every public congregation larger than 15
persons intended ‘to mobilize or demonstrate support for or opposition to the views, principles, policy, actions or
omissions of any person or body of persons or institution’ to the RGA’s notice requirements. Did Parliament
mean to require every convener of a church convocation in a public park—at which issues of moment may be
debated and the considered opinion of the community canvassed—to apprise local authorities in advance or risk
the imposition of a banning order or the dispersal of the persons assembled? The RGA’s potential threat of
criminal sanctions in the context of a church convocation advocating a pro-life position with respect to abortion
ought to be sufficient for a court to find the applicable provisions of the RGA void for overbreadth. Similar
considerations support invalidating the applicable provisions of the RGA on the grounds of vagueness. See
Dawood v Minister of Home Affairs 2000 (3) SA 936 (CC) [47] (a principle of the rule of law that rules be stated
in a clear and accessible manner).
50
The Labour Relations Act affords trade unions and their members significant statutory protection with
respect to the right to picket in and about the private property of an employer (s 69).
51
Sections 56 and 105 of the Constitution oblige the National Assembly and each provincial legislature,
respectively, ‘to receive petitions, representations or submissions from any interested persons or institutions.’
387
particular constellation of public order, private property or expressive interests that may
be at stake in an assembly case.
(i) Private property

Assemblies on private property ought to be the easiest for the government to regulate. In
such circumstances, privacy and property interests compete on a rather equal
constitutional footing with assembly and other expressive rights. For example, a
municipal by-law may legitimately require a private homeowner’s consent before
commercial solicitation is permitted.52
Shopping centres—or malls—with their open spaces, mock boulevards and strolling
crowds challenge this public/private divide.53 In Amalgamated Food Employers v Logan
Valley, the US Supreme Court held that, given the ‘public’ nature and function of
shopping centres, they were subject to the same First Amendment standards as any
downtown business block.54 As a result the Logan Valley court found that picketing,
within a mall, of a store charged with unfair labour practices fell within the protection of
the First Amendment. Four years later the US Supreme Court severely curbed the
application of the ‘public function’ doctrine to commercial property. In Lloyd v Tanner
it found that the handing out of anti-war leaflets in a shopping mall did not warrant
constitutional protection.55 Whereas the Logan Valley labour protest targeted a
particular store, the Lloyd court felt that the aims of this general protest could be just as
easily accomplished in an alternative public location such as the street in front of the
mall.
In South Africa, the privatisation of public space—and our shopping malls are good
examples of such privatisation—suggests that our courts ought not to allow property
rights to automatically trump assembly rights.56 Malls offer only the illusion of privacy.
Where a protest is directed at a particular vendor, and not a state actor, the protest must
take place within reasonable proximity of the place of business in order for the protest to
have any purchase. The Labour Relations Act, for example, recognises the right of trade
unions and their members, in support of a strike, to picket in and about the private
property of an employer. Section 69 reads, in relevant part:
(2) Despite any law regulating the right of assembly, a picket authorised in terms of
subsection (1), may be held—
(a) in any place to which the public has access but outside the premises of an employer; or
(b) with the permission of the employer, inside the employer’s premises . . .
52
See Breard v City of Alexandria 341 US 622 (1951); Wisconsin Action Coalition v City of Kenosha 767 F 2d
1248, 1258 (7th Cir 1985) However, while the US Supreme Court has let stand ordinances which bar picketing or
demonstration in front of private residences, it has taken a very different tack with respect to prohibitions on
non-commercial forms of communication by groups who lack other, adequate means of expression. See, for
example, Watchtower Bible and Tract Society of New York, Inc v Village of Stratton 536 US 150 (2002).
53
See Victoria & Alfred Waterfront (Pty) Ltd v Police Commissioner of Western Cape 2004 (4) SA 444 (C)
448–449 (distinctive character of Cape Town waterfront makes it private property of a particular kind to which a
right of public access applies).
54
Amalgamated Food Employers v Logan Valley 391 US 308 (1968).
55
Lloyd v Tanner 407 US 551 (1972).
56
The Constitutional Court has expanded the notion of what constitutes a ‘public purpose’ with respect to its
analysis of deprivations and expropriations of property under s 25. See First National Bank of SA Ltd t/a
Wesbank v Commissioner, South African Revenue Services 2002 (4) SA 768 (CC) [50] (overriding purpose of the
constitutional property clause is to strike ‘a proportionate balance’ between existing property rights and the
promotion of the public interest).
388
(3) The permission referred to in subsection (2)(b) may not be unreasonably withheld.
Note that the LRA does not limit such pickets to public property. Members of trade
unions may picket ‘in any place to which the public has access.’ Such language clearly
contemplates such ‘private’ venues as shopping malls. The right to picket on private
property is further reinforced by the language of the next two sub-sections: namely, that
employers may not unreasonably withhold permission to picket within their business
premises. To the extent that provision for such protests is not made manifest in
legislation, our courts are well placed to craft rules that permit such protests to take
place at the same time as they secure the rights of a business to carry out its commercial
activity with limited interference. Businesses are not entitled to monopolise the use of
places that function as ‘public’ spaces. The LRA provides initial, if not ample, support
for this thesis.
(ii) Security and order

Where assemblies and demonstrations pose an imminent and direct threat to public
security, the government is well within its rights to ban them.57 The catch, of course, is
not to allow the assertion that such a threat exists to be used to censor unpopular or
unconventional views.58 Courts—from Zimbabwe to the US to Germany—generally
take a dim view of banning.59 They require the state to demonstrate that no other means
of dealing with a threat to public order—say, relocation to another venue—is
available.60
In SATAWU v Garvas, the Constitutional Court upheld provisions of the RGA
imposing joint and several liability on the organisers of gatherings for ‘riot damage’
caused by participants in the gathering.61 The Act creates a form of vicarious liability for
an organiser of a gathering which gets out of control. The organiser may nevertheless
avoid liability if it can prove:
(a) that . . . it did not permit or connive at the act or omission which caused the damage in
question; and
(b) that the act or omission in question did not fall within the scope of the objectives of the
gathering or demonstration in question and was not reasonably foreseeable; and
(c) that . . . it took all reasonable steps within his or its power to prevent the act or omission
in question . . .62.
57
See s 5(1) of the RGA. See also Article 15.1 VersammlG.
58
See Cisse v France (2002) ECHR 400 [52] (public order concerns alone do not justify state intervention).
59
See In Re Munhumeso (note 8 above).
60
US courts recognise the state’s substantial interest in safeguarding its citizens against violence. See Hill v
Colorado 530 US 703 (2000), 715 (‘It is a traditional exercise of the States’ ‘‘police powers to protect the health
and safety of their citizens’’’) quoting Medtronic, Inc v Lohr 518 US 470 (1996), 475. However, that substantial
interest in public safety does not end the inquiry. The state must provide ‘tangible evidence’ that
speech-restrictive regulations are ‘necessary’ to advance the proffered interest in public safety. See Bay Area
Peace Navy v United States 914 F 2d 1224, 1227 (9th Cir 1990). German courts take a very similar line. See
Brokdorf (note 6 above) 352–354.
61
SATAWU v Garvas (note 4 above). Riot damage is defined in the RGA as ‘any loss suffered as a result of any
injury to or death of any person, or any damage to or destruction of any property, caused directly or indirectly by,
and immediately before, during or after, the holding of a gathering’.
62
Section 11(2) of the RGA. The sub-section, which on the face appears to require an organiser to take
reasonable steps to avoid acts that are not reasonably foreseeable, was held to be a ‘viable, yet onerous defence’.
SATAWU v Garvas (note 4 above) [39]. The Constitutional Court upheld the reasoning of the Supreme Court of
Appeal in this regard: see SATAWU v Garvas 2011 (6) SA 382 (SCA), particularly [36]–[39]. See the discussion
389
The court held that the provisions in issue had a chilling effect on the right to freedom of
assembly by increasing the costs of organisation protest action. In the event that an
organiser decided to cancel a large gathering because of the risk that some of the
participants might cause mayhem, this would affect the individual rights of thousands of
would-be peaceful assemblers.63 The limitation was nevertheless justifiable as a
proportionate measure to protect the rights of victims of riot damage: ‘When a gathering
imperils the physical integrity, the lives and the sources of livelihood of the vulnerable,
liability for damages arising therefrom must be borne by the organisations that are
responsible for setting in motion the events which gave rise to the suffered loss’.64
(iii) Content neutrality

At various points in this discussion, I have alluded to the fact that assembly
jurisprudence is primarily, though not entirely, concerned with conduct. This emphasis
on form, however, should not be understood to mean that assembly concerns do not
engage the expressive content of an assembly.
Where government restrictions on assembly go to the point of view, or the political
ends, of the participants, courts ought to be loath to accept any restrictions, let alone
prohibitions.65 As a general matter, the only acceptable, general, content-specific
restrictions on assemblies held in public streets and parks ought to be on forms of
expression left unprotected by s 16(2), ie incitement and hate speech.66 However,
content-based restrictions on (a) assemblies in public spaces where the purpose of the
public space is inconsistent with the subject matter of the speech or (b) public officials
where their public office is inconsistent with the subject matter of the speech may pass
constitutional muster.67
The Constitutional Court in South African National Defence Union v Minister of
Defence provides a coherent account of the relationship between the general
commitment to content-neutrality and the appropriate conditions under which the
content of speech by public servants may be restricted.68 The court states that the
purpose of the mutually supporting expressive rights found in Chapter 2—ss 15, 16, 17,
18, 19—is to enable:
groups of like-minded people to foster and propagate such opinions. The rights implicitly
recognise the importance, both for a democratic society and for individuals personally, of the
ability to form and express opinions, whether individually or collectively, even where those
views are controversial. The corollary of the freedom of expression and its related rights is
tolerance by society of different views. Tolerance, of course, does not require approbation of
by IM Rautenbach ‘The Liability of Organisers for Damage Caused in the Course of Violent Demonstrations as
a Limitation of the Right to Freedom of Assembly’ 2013 TSAR 151.
63
SATAWU v Garvas (note 4 above) [57], [58].
64
Ibid [67].
65
See Ward v Rock Against Racism 491 US 781 (1989), 791 (‘The principal inquiry in determining content
neutrality, in speech cases generally and in time, place, or manner cases in particular, is whether the government
has adopted a regulation of speech because of disagreement with the message it conveys’). See also Stankov (note
11 above) [86] (Article 11 of the ECHR does not permit states to prohibit or restrict ‘an assembly or an
association . . . [solely because of] the views held or statements made by participants or members.’).
66
67
See Bethel School District v Fraser 478 US 675 (1986) (since public schools are not public forums, schools
can control the content of assemblies or gatherings for legitimate pedagogical reasons).
68
Note 3 above.
390
a particular view. In essence, it requires the acceptance of the public airing of disagreements
and the refusal to silence unpopular views.69
Public servants, especially those in the security services, have obligations and duties that
may legitimately restrict their expressive conduct. Section 199(7) of the Constitution
states that:
Neither the security services, nor any of their members, may, in the performance of their
functions—
(a) prejudice a political party interest that is legitimate in terms of the Constitution; or
(b) further, in a partisan manner, any interest of a political party.
The SANDU court concludes that ‘members of the Defence Force may not, in the
performance of their functions, act in a partisan political fashion.’70 However, the 255-
word definition of ‘act of public protest’ found in the Defence Act 44 of 1957 covered
conduct ranging from ‘holding or attendance of a meeting which is calculated to support
or oppose any policy or conduct of the government or of a foreign government’ to any
indication of ‘private or public support or opposition regarding any policy, conduct or
principle’ or any event of national or public concern.’ The long but still non-exhaustive
definition of public protest could capture complaints made by a defence force member to
her husband in relation to absolutely any ‘event of national or public concern.’ Such a
complaint could never be accurately described as public protest or partisan political
conduct. As a result, the Constitutional Court held that the Defence Act’s gloss on the
term ‘public protest’ in s 126B(2) and the extension of its definition of ‘act of public
protest’ in s 126B(4) were unconstitutional. It then severed both subsections from the
Defence Act.71
(iv) Time, place and manner restrictions

For the most part government restrictions on assembly will appear neutral with respect
to the content of the expression. Facially content-neutral regulations may still impair the
right to assemble in a variety of ways.
Foreign and international assembly jurisprudence make it clear that citizens ought to
have ‘guaranteed access’ to public streets and parks.72 Blanket prohibitions on such
access—though facially neutral—would constitute an unjustifiable infringement of
s 17.73
That said, the government is entitled to put time, place, and manner restrictions on
assemblies in an attempt to mediate competing interests in safety, privacy, property and
expression. US courts employ a three-part test for such restrictions on assemblies in a
public forum:74 (1) the restriction must be content-neutral;75 (2) the restriction must not
burden the expressive conduct more than is absolutely necessary to further a ‘significant
69
Ibid [8].
70
SANDU (note 3 above) [11].
71
Ibid [45].
72
South African legislation on the subject seems rather outré. See the Control of Access to Public Premises
and Vehicles Act 53 of 1985, s 2 (gives the state untrammelled authority to control ingress and egress).
73
See Hague v CIO 307 US 496 (1939), 515–516 (privilege to use the streets and parks for communication on
national questions may be regulated in the interest of all: it must not, in the guise of regulation, be abridged or
denied).
74
Frisby v Schultz 487 US 474 (1988), 481.
75
See Chicago Police Department v Mosely 408 US 92 (1972) (ordinance allowing labour picketing near
schools, but barring other grounds for picketing, is declared invalid as a content-based restriction); Boos v Barry
391
government interest;’76 (3) any restriction must provide for ‘alternative channels for
communication’—that is, they must permit the assembly to take place elsewhere, or at
another time, or allow the message to be conveyed in a comparable form.77 All such
restrictions are subject to two further provisos: (1) they must provide clear guidelines for
the specific conduct being regulated;78 (2) they cannot give a public official unfettered
discretion to decide what kind of expressive conduct is permissible.79
The Zimbabwe Supreme Court, in In Re Munhumeso, was confronted with a piece of
legislation that contravened each of these five accepted standards for the regulation of
assemblies and demonstrations.80 Section 6 of the Law and Order (Maintenance) Act
read, in relevant part, as follows:
(1) A regulating authority may issue directions for the purpose of controlling the conduct
of public processions within his area and the route by which and the times at which a
public procession may pass.
(2) Any person who wishes to form a procession shall first make application in that behalf
to the regulating authority of the area in which such procession is to be formed and if
such authority is satisfied that such procession is unlikely to cause or lead to a breach of
the peace or public disorder, he shall, subject to the provisions of s 10, issue a permit in
writing authorizing such procession and specifying the name of the person to whom it
is issued and such conditions attaching to the holding of such procession as the
regulating authority may deem necessary to impose for the preservation of public order.
(3) Without prejudice to the generality of the provisions of ss (2), the conditions which
may be imposed under the provisions of that subsection may relate to—
(a) the date upon which and the place and time at which the procession is authorised
to take place;
(b) the maximum duration of the procession;
and to any other matter designed to preserve public order.
485 US 312 (1988) (law forbidding display of banners or signs critical of a foreign government within 500 feet of
said government’s embassy is constitutionally invalid as a content-based restriction).
76
See Ward v Rock Against Racism (note 65 above) (ordinance requiring performers appearing at city theatre
to use city-owned sound equipment is a regulation narrowly tailored to effect the city’s significant interest in
preventing excessive noise); Clark v Community for Creative Non-Violence 468 US 288 (1984) (significant
government interests include traffic safety, sanitation, public peace and order, noise control, and personal
privacy). But see Edwards v South Carolina 372 US 229 (1963) (Supreme Court reverses convictions because
protest took place in an historically recognised public forum—in front of the state legislature—and that there had
been no threat of violence by the demonstrators nor evidence of the use of ‘fighting words’); National People’s
Action v Village of Wilmette 914 F 2d 1008, 1012 (1990) (time restrictions on canvassing—limiting them to
particular hours—are constitutionally infirm because ‘[e]ven a temporary deprivation of a First Amendment
[right] is generally sufficient to prove irreparable harm.’).
77
See Edwards v City of Coeur d’Alene (2001) 262 F 3d 856 (holding unconstitutional an ordinance banning
the attachment of ‘any wooden, plastic or other type of support’ to signs carried during parades and public
assemblies on city streets because they could, according to the ordinance, be used as weapons).
78
See Lakewood v Plain Dealer Publishing Co 486 US 750 (1988), 758–759.
79
See Cox v Louisiana 379 US 536 (1965), 554, 557: ‘It is clearly unconstitutional to enable a public official
to determine which expressions of view will be permitted and which will not or to engage in invidious
discrimination among persons or groups either by the use of a statute providing a system of broad discretionary
licensing power or, as in this case, the equivalent of such a system by selective enforcement of an extremely
broad prohibitory statute.’ See also Gregory v Chicago 394 US 111 (1969) (convictions for disorderly conduct of
a group of peaceful demonstrators pressing for school desegregation overturned because statute gave the police
almost unlimited discretion to decide what constituted a ‘diversion tending to a breach of the peace’);
Shuttlesworth v Birmingham 394 US 147 (1969), 149 (invalidating ordinance for lack of specificity—permits
could be refused on such vague grounds as ‘public welfare, safety, health, decency and public morals’—and for
unbridled power to prohibit assemblies granted to city commission).
80
Note 8 above.
392
The Supreme Court distils from this fatally flawed act three elemental infirmities. First,
the Act does not assume that the public may, as a matter right, demonstrate or assemble
in public streets and parks. The Act instead ‘imposes a prohibition on the right to take
part in a public procession unless permission is first applied for and obtained from a
regulating authority.’81 In short, the Act makes an absolute ban on ‘public processions’
in ‘public places’ the departure point for assembly analysis.82 Second, the regulating
authority may issue a banning order on just about any grounds whatsoever: ‘the
discretionary power of [the] regulating authority is uncontrolled.’83 The absence of any
criteria to be used by the regulating authorities in the exercise of their discretion turns
the Act into an ‘instrument for the arbitrary suppression of the free expression of
views.’84 Third, the Act makes no effort to burden the expressive conduct only as much
as is absolutely necessary to further a significant government interest: ‘the regulating
authority is not obliged to take into account whether the likelihood of a breach of the
peace or public disorder could be averted by attaching conditions upon the conduct of
the procession in the issuance of a permit relating, for instance, to time, duration and
route . . . rather than an outright ban.’85 The Munhumeso court concluded that while ‘the
power to control . . . a public procession [in a public place may be] necessary in the
interests of public safety or public order’, such power had to exercised in a manner far
‘less restrictive and authoritarian’ than provided for in the fatally flawed Act.86
Government may, however, legitimately claim greater latitude with respect to the
restrictions imposed on public or state-owned venues not normally associated with,
or conducive to, assemblies or demonstrations. South African courts should take care
not to base assembly doctrines primarily on place. Too great an emphasis on the
nature of the forum—public, non-public, private—tends to result in ‘tests’ that are
both over-inclusive and under-inclusive with respect to the vindication of assembly
interests.87
81
Ibid 561.
82
Ibid 563: ‘Although the rights to freedom of expression and assembly are primary and the limitations
thereon secondary, s 6(2) . . . reverses the order.’
83
Ibid 562.
84
Ibid 562.
85
Ibid.
86
Ibid 563.
87
The ‘geographical’ analysis reflected in public forum and non-public forum doctrines diverts attention from
the real interests at stake: the value of the expressive activity and the countervailing interests in privacy, property
or public order. Two cases reflect this subordination of substance to form. In Brown v Louisiana 383 US 131
(1966), the court employed the public forum test in finding unconstitutional the breach of peace convictions of
African-American students who had engaged in peaceful silent protest within a public (whites-only) library. In
Adderly v Florida 385 US 39 (1966), on the other hand, the court employed the non-public forum doctrine and
held that protesting African-American students did not have the right to gather on a jail driveway. It is hard to
understand why the inside of a library—a place for quiet contemplation—is declared a public forum and thus a
potentially appropriate venue for public protest, while a government driveway fronting a jail is a non-public
forum and a more easily restricted venue. Given the nature of the two locations, one might have thought that the
assignations ‘public’ and ‘non-public’ ought to have been reversed. These two cases suggest that ‘[c]lassifying a
medium of communication as a public forum’ will weight the analysis heavily in favour of the speaker and ‘may
cause legitimate governmental interests to be thoughtlessly brushed aside.’ See DA Farber & JE Nowak ‘The
Misleading Nature of Public Forum Analysis: Content and Context in First Amendment Analysis’ (1984) 70
Virginia LR 1219, 1224. Conversely, identification of a venue as a non-public forum may tilt the analysis too
heavily in favour of the government’s interest in the protection of property and public order and often leads
courts ‘to ignore the incompatibility of challenged regulations’ with constitutional commitments to an open and
democratic society (ibid).
393
How then might a court best approach time, place and manner restrictions on
assemblies so as to avoid definitional traps? It might begin by asking whether the
public is ordinarily admitted to the property in question as a matter of right. A
negative response tilts the analysis in favour of the governmental or private interest
asserted. An affirmative answer prompts a further enquiry as to whether the property
in question is traditionally open to expressive activity. If this follow-up question is
answered in the affirmative, then the assembly interests are privileged. It may be,
however, that the place in question is open to the public, but is not normally
associated with expressive activity. Since not all publicly accessible places are easily
transformed into assembly or demonstration grounds, the next question might assess
the compatibility of the property’s purpose with such expressive activity. If the
property is government-owned, the court might ask to what extent the restriction on
gatherings simply ensures that the property can be effectively used by the
government and other members of the public for its intended purpose, and to what
extent the restriction effectively suppresses expression. This functional approach
suggests that s 17 may well offer protection to demonstrations on privately owned
property. Not only does the Constitution contemplate the extension of the guarantees
in the Bill of Rights to relationships between private parties, the privatisation of
public space in South Africa demands that courts interrogate both the extent to
which a piece of private property serves a public function and the extent to which
the expressive conduct in question actually impairs the property rights and the
privacy rights of the owner.88
Authorities often attempt to relocate assemblies and demonstrations to ‘more
suitable’ venues, at ‘more suitable’ times. With respect to restrictions on place, a
court might first ask whether, in fact, other forums in the vicinity are available for
expressive activities. If such alternative forums are not available, then one might ask
more generally whether adequate alternative media, forms or manner of expression
can be meaningfully exploited by the demonstrators.89 Of course, it must be
remembered that sites for demonstrations are often selected because of the nexus
between the place and the issue. Alternative sites or forms of expression may
diminish significantly the impact of the demonstration or protest. The court must,
therefore, inquire into the symbolic significance of the property for the message
being conveyed as well as the medium being used to convey that message.90 The
more closely related the property is to the message, the greater the weight to be
given to the expressive interests sought to be exercised there. It must also be
remembered that many South Africans will not, in fact, have access to other
‘adequate’ forms of communication. The means of the demonstrators are just as
important as the means of demonstration. Similar considerations attach to time. The
inconvenience a demonstration may cause to others during rush hour traffic is a
legitimate concern. Assemblies cannot be used to coerce others into listening by
88
See Marsh v Alabama 326 US 501 (1946) (company town—though privately owned—possesses all the
indicia of a municipality and thus is subject to constitutional norms).
89
See, for example, Metromedia Inc v San Diego 453 US 490 (1981) (ban on all billboards eliminated a
‘well-established means of communication used to convey a broad range of different kinds of messages’ and a
means of communication for which there was no meaningful alternative).
90
See Adderly v Florida 385 US 39 (1966), 49 (‘The jailhouse . . . is one of the seats of government, whether
it be the Tower of London, the Bastille or a small county jail. And when it houses political prisoners or those who
many think are unjustly held, it is an obvious centre for protest.’).
394
obstructing their passage. However, assemblies are, at bottom, meant to convey the
political position of one set of citizens to their fellow citizens and those that govern
them. This conversation requires the presence of believer and non-believer alike. The
selection of time is, therefore, a relevant consideration in the planning of an
assembly or a demonstration. The right of the public to use the streets—married to
the functional significance of time—demands that authorities compromise with
conveners on the place and the time at which a demonstration takes place.
Various provisions of the Regulation of Gatherings Act have had their
constitutionality appraised in para 17.2(b) above. However, the questions set out in
the previous two paragraphs throw into somewhat sharper relief some of the RGA’s
many fault-lines. Neither the seven-day notice provision nor the 48-hour notice
provision privilege assembly rights in public streets. Like Zimbabwe’s Law and
Order (Maintenance) Act, the RGA generally allows regulating authorities to prohibit
a gathering unless permission is first applied for and obtained. While regulating
authorities may be required to act in ‘good faith’ and to limit banning orders to a
relatively identifiable set of circumstances under the seven-day notice period, the
48-hour notice provision grants the authorities almost unfettered discretion to ban an
assembly: ‘if . . . notice is given less than 48 hours before the commencement of the
gathering, the responsible officer may by notice to the convener prohibit the
gathering.’91
Local authorities have also discovered that the RGA can be manipulated in such a
manner as to thwart the best intentions of a convener who, in fact, complies with the
seven-day notice period. Because conveners rarely have the opportunity to plan a
demonstration more than a week in advance, and because the notice period for
urgent applications that do not meet the requirements for expedited review is ten
days, local authorities have been able to issue a banning order without having to
concern themselves with the possibility that a court of law might reverse their
decision. More importantly, the reflexive use of banning orders by local authorities
hardly comports with the dictates of s 17. Section 17 demands that local authorities
be willing to engage in nuanced assessments of the symbolic significance of the
property for the message being conveyed, of the relationship of the time of a
gathering to the ability to convey a political position, and of the extent to which the
expressive conduct in question impairs the property rights and the privacy rights of
others.
91
Section 3(2) of the RGA.
395
Chapter Eighteen
Association
By Stuart Woolman*
18.1 Introduction to association . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 396

18.2 Content of the right . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 397
(a) Associations as correlative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 397
(b) Associations as constitutive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 398
(c) Associations and capture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 400
(d) Associations and disassociation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 400
(d) Unprotected associations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 401
18.3 Limitations on the right . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 402
(a) Character of analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 402
(b) Grounds for limitation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 403
(i) Banning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 403
(ii) Equality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 404
(iii) Democracy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 404
(iv) Coercion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 406
(c) Analysis in context . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 406
(i) Political associations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 406
(ii) Intimate associations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 407
(iii) Cultural associations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 408
(iv) Economic associations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 410
(v) Empowering associations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 411
(vi) Small social associations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 412
(vii) Security forces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 412
(viii) Religious associations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 414
(ix) Voluntary associations and fair hearings . . . . . . . . . . . . . . . . . . . 417
(x) Sexual Associations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 418
Association
18. Everyone has the right to freedom of association.
18.1 INTRODUCTION TO ASSOCIATION

About 170 years ago Alexis de Toqueville wrote that no one and especially ‘no
legislator can attack [the freedom of association] without impairing the very foundations
of society’.1 If Michael Walzer is to be believed, De Toqueville’s fears of impaired
foundations have been realised. Walzer asserts that ‘associational life in the advanced
* Elizabeth Bradley Chair of Ethics, Governance and Sustainable Development, University of the
Witwatersrand, Johannesburg. This chapter is an abbreviated version of S Woolman ‘Freedom of Association’ in
S Woolman, M Bishop & J Brickhill (eds) Constitutional Law of South Africa 2ed (2004), ch 44. The chapter was
updated for the sixth edition by Iain Currie.
1
Democracy in America (1835) 222.
396
Association 18.1–18.2
capitalist and social democratic countries seems increasingly at risk. Publicists and
preachers warn us of a steady attenuation of everyday cooperation and civic friendship
. . . The Hobbesian account of society is more persuasive than it once was.’2 If we
continue to ignore the foundational nature of associations, Walzer concludes, we do so
at our own peril. South African civil society was a palpably thin affair under apartheid.
Its gossamer fabric has frayed further in the course of this country’s transformation into
a more democratic and egalitarian state.
A proper reappraisal of association can go some distance towards repairing the fabric
of South African life. Any revised and enhanced appreciation must recognise four
fundamental justifications for the right. First, associations make good the promise of a
variety of other, correlative rights. Secondly, associational freedom recognises the many
involuntary social formations that are constitutive of identity as well as the setting for all
meaningful action. Thirdly, associational freedom enables us to protect figurative—and
real—forms of property from capture by entities inimical to our preferred ways of being
in the world. Fourthly, associational freedom prevents the state and other powerful
social actors from determining the most basic contours of our lives through coercion.
A single golden thread runs through all four primary justifications for associational
freedom: social capital.3 Social capital is, simply put, the accumulated trust, respect,
loyalty, wisdom and effort that sustain our fragile unions.
18.2 CONTENT OF THE RIGHT
(a) Associations as correlative

Associations make good the promise of a variety of other rights and freedoms.
Association so understood is a correlative right.4
Associational rights enable political parties to provide a bridge from individual
citizenship to representative democracy. Associational rights secure the space for those
intimate associations we deem crucial to our self-understanding and prevent the state
from exercising too totalising an influence over decisions about who to love and how to
love them.5 Associational rights similarly safeguard primordial religious and cultural
attachments from undue state interference. Associational rights advance the goal of
2
M Walzer ‘The Civil Society Argument’ in Chantal Mouffe (ed) Dimensions of Radical Democracy (1992)
89, 90.
3
3 See R Putnam Bowling Alone: The Collapse and Revival of American Community (2000); R Putnam
Making Democracy Work: Civic Traditions in Modern Italy (1993); J Coleman Foundations of Social Theory
(1990); P Bourdieu ‘Forms of Capital’ in JC Richards (ed) Handbook of Theory and Research for the Sociology
of Education (1986) 241.
4
Compare the Constitutional Court’s treatment of other rights as interdependent and symbiotic. See, for
example, Khumalo v Holomisa 2002 (5) SA 401 (CC) (court twinned privacy and dignity in support of
personality rights in a suit for defamation); Christian Education South Africa v Minister of Education 2000 (4)
SA 757 (CC) (mutually reinforcing rights of religion and culture were deemed to be in conflict with, and
ultimately subordinate to a constellation of equality, dignity, freedom and security of the person and children’s
rights considerations); National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6 (CC)
[28]–[29] (it is clear that the constitutional protection of dignity ‘requires us to acknowledge the value and the
worth of all individuals as members of society’; moreover, ‘the rights of equality and dignity are closely related,
as are the rights of dignity and privacy.’)
5
Roberts v United States Jaycees 468 US 609 (1984) 615 (that intimate ‘personal relationships [enjoy] a
substantial measure of sanctuary from unjustified interference by the State . . . reflects the realization that
individuals draw much of their emotional enrichment from close ties with others.’)
397
substantive equality6 by freeing labour to bargain with capital on a more equal footing,
by freeing women to form institutions suited to their particular needs, and by freeing
historically disadvantaged groups to pursue shareholder equity through broad-based
black economic empowerment initiatives.7
(b) Associations as constitutive

Associational freedom is often justified on the ground that it enables individuals to
exercise relatively unfettered control over the various relationships and practices
deemed critical to their self-understanding. But autonomy as the basis for associational
freedom dramatically overemphasises the actual space for self-defining choices. In truth,
our experience of personhood, of consciousness, is a function of a complex set of
narratives over which we exercise little in the way of (self)control.
Our notion of ‘selfness’ is a function, a very useful by-product, of a complex array of
semi-independent neural networks that control the body’s journey through life. This
complex set of dispositional states is a function of both the deep grammar of our brains
and the social endowments that have evolved over time to determine various patterns of
behaviour. These patterns of behaviour are narratives. Each narrative, or storyline,
reflects a complex set of experiences and dispositional states organised around a
particular form of behaviour. Each self then is just a centre of narrative gravity. Each
centre of narrative gravity—each self—is a set of different, but overlapping narratives.
The self is that centre of narrative gravity, that self-representation, which holds together
and organises information, various storylines and dispositional states that make up my
sense of ‘me’.
The conclusions we draw from this account of the self for our understanding of
associational life are fairly straightforward. This account of the self should dispel the
notion that individuals are best understood as ‘rational choosers’ of the ends they seek.
The self should be seen as the inheritor and the executor of a rather heterogeneous set of
practices—of ways of responding to or acting in the world. The centrality of inherited
practices or social endowments for both the creation and the maintenance of identity
introduces an ineradicable element of arationality into the domain of individual
decision-making. That is, despite the dominance of the enlightenment vision of the self
as a rational agent, the truth of the matter is that the majority of our responses to the
world are arational. They are not reflective. They are not critical. They are not chosen.
They just are. It is this heterogeneous variety of associations and practices into which we
are born and in which we continue to reside that determine substantially our responses to
various events or phenomena. If this is so, then as a constitutional matter, the model of a
rational individual moral agent which undergirds much of our current jurisprudence
6
See D Rhode ‘Association and Assimilation’ (1986) 81 Northwestern University LR 106 (associations of
individuals from historically disadvantaged groups may engage in exclusionary practices, that would be deemed
unjustifiable in associations made up of individuals from advantaged groups, where the social meaning of the
discriminatory exclusion is not invidious.)
7
The foregoing list of goods should suggest that the sphere of liberty secured by the freedom of association is
important for two other reasons. Individuals and groups freed to pursue their preferred associational ends realise,
spontaneously, if not consciously, a rich and varied civil society. This rich and varied civil society in turn creates
an essential buffer between the individual and the state. Should we withdraw constitutional protection from these
various forms of association, our ability to protect individuals from the abuses of state power, as well as
unchecked social and economic power, will be significantly diminished.
398
Association 18.2
ought to be supplanted with a vision of the self that is more appropriately located in the
associations to which we all belong.8
In terms of constitutional doctrine, exemptions for other ways of being in the world
supplant the desire to sanction non-conformist or non-dominant forms of behaviour.
Judicial solicitude for rational individual choice—a stance that often inclines toward the
belief in a single justifiable form of behaviour—is displaced by judicial solicitude for
the arational, constituitive attachments that form the better part of our identity. The
recognition of the self as a function of arational, constitutive attachments does not mean
that we must give each of these attachments our imprimatur of constitutional approval.
Within the constraints of these social endowments, we still possess the capacity to make
critical assessments and reasoned judgments about right and wrong, good and evil.
Indeed, it is the varied forms of attachments and dispositions that make up the self which
provide each of us, and our society collectively, with the critical leverage necessary for
discriminating between more and less valuable forms of behaviour.
The recognition of associations as constitutive of the self does not, therefore, mean
that we eschew hard constitutional choices. It means, rather, that we ought to think twice
before we differentiate individiously between our preferred way of being in the world
and that way of being preferred by others. Freedom of association rightly understood
forces us to attend to the arationality of our most basic attachments and to think twice
before we accord our arational attachments preferred status to the arational attachments
of others.9
8
See, for example, Prince v President, Cape Law Society 2002 (2) SA 794 (CC) (Rastafarian use of cannabis
in religious ritual justifiably impaired by criminal sanctions because the legislature has power and duty to enact
legislation prohibiting conduct considered by it to be anti-social—whether court agrees with this assessment or
not); S v Jordan 2002 (6) SA 642 (CC) (women’s right to engage in commercial transactions involving sex,
though private and often involving economically marginalised classes, insufficient to outweigh state’s interest in
proscription through criminal sanction). What links all the majority and minority judgments in these decisions is
the model of the self as a rational moral agent. The result of this dominant mode of analysis is that it
overestimates the capacity of the individual to choose his or her own ends. Conversely, it underestimates the
centrality of associations, endowments and practices for the formation of individual identity. If we were to shift
our constitutional analysis to one in which we see associations as constitutive of the self, then we might be
willing to treat individuals who participate in non-dominant forms of behaviour with greater respect. Eliminate
the notion that individual Rastafarians ‘choose’ to smoke an elicit substance and supplant it with the assessment
that Rastafarians simply engage in a marginal, but not especially dangerous, form of life. The result should be
that we are willing to take more seriously the need to create a space for what many in our society view as aberrant
practices.
9
The constitutive nature of our attachments also forces us to attend to another often overlooked feature of
associations. We often speak of the associations that make up our lives as if we were largely free to choose them
or make them up as we go along. I have suggested why such a notion of choice is not true of us as individual
selves. It is also largely not true of associational life generally. As Michael Walzer has convincingly argued, there
is also a ‘radical givenness to our associational life’ (M Walzer ‘On Involuntary Association’ in A Gutmann (ed)
Freedom of Association (1998) 64, 67). What he means, in short, is that most of the associations that make up our
associational life are involuntary associations. We don’t choose our family. We generally don’t choose our race or
religion or ethnicity or nationality or class or citizenship. Moreover, even when we appear to have the space to
exercise choice, we rarely create the associations available to us. The vast majority of our associations are already
there, culturally determined entities that pre-date our existence or, at the very least, our recognition of the need
for them. Finally, even when we overcome inertia and do create some new association (and let me not be
understood to underestimate the value of such overcoming), the very structure and style of the association is
almost invariably based upon an existing rubric. Corporations, marriages, co-edited and co-authored publications
are modelled upon existing associational forms. So gay marriages may be truly new—but marriage itself is a
publicly recognised and sanctioned institution for carrying on intimate or familial relationships. The emphasis on
involuntariness in associational life is meant to bracket any conception of freedom that suggests that any
impediment to free association is a denial of that which is most fundamentally human. Those impediments are, in
many respects, the precondition for such freedom.
399
(c) Associations and capture

There is something about the very structure of associations that makes them worth
protecting: capture. Capture is a function of—one might even say a necessary and
logical consequence of—the very structure of associational life. In short, capture
justifies the ability of associations to control their association through selective
membership policies, the manner in which they order their internal affairs and the
discharge of members or users. Without the capacity to police their membership and
dismissal policies, as well as their internal affairs, associations would face two related
threats. First, without built-in limitations on the process of determining the ends of the
association, new members, existing members and even outside parties could easily
distort the purpose, the character and the function of the association. Secondly, and for
similar reasons, an association’s very existence could be at risk. Individuals, other
groups or a state inimical to the values of a given association could use ease of entrance
into, and the exercise of voice in, an association to put that same association out of
business.
In a world without high transaction and switching costs for the creation of
associations, the risk of such penetration and alteration might be a tolerable state of
affairs. But, it almost goes without saying, in the real world the costs of creating and
maintaining associations is quite high. Just starting an association—be it religious,
cultural, economic, political or intimate—takes enormous effort. To fail to take such
efforts seriously, by failing to give individuals ‘ownership’ over the fruits of their
continued labour, creates significant disincentives to expend the energy—and
capital—necessary to form these relationships. To fail to permit a marriage, a
corporation, a church, a golf club or a law society to govern its boundaries and its
members in appropriate ways would make these arrangements impossible to maintain. It
would, in many respects, be equivalent to saying that anyone and everyone owns these
associations—which is, of course, tantamount to saying that no one owns them at all.
The notion of associational property operates in both a literal sense and a figurative
sense. Freedom of association protects both kinds of property from capture by those
who would use them for ends at a variance with those of the existing and rightful
members of the association.
(d) Association and dissociation

For reasons already assayed under the headings of ‘the correlative’, ‘the constitutive’
and ‘capture’, the right to associate must include the right not to associate with third
parties.10 However, the right to dissociate—as a specific feature of the more general
right to associate—tends to be asserted in three primary settings.
In the first setting, an association with a clear raison d’être—ie collective bargaining
or professional oversight—also takes up a more controversial agenda—political
mobilisation around issues unrelated—or at least not directly related—to the
association’s organising principle. Some courts may recognise a right to dissociate with
respect to ‘ideological union expenditures not directly related to collective bargain-
ing.’11 Other courts might find ideological union expenditures unrelated to collective
10
See Law Society of the Transvaal v Tloubatla 1999 (11) BCLR 1275 (T), 1280–1281.
11
See, eg, Abood v Detroit Board of Education (1977) 431 US 209. The US ‘fair share’ doctrine is articulated
in a long line of cases beginning with International Associational Machinists v Street (1961) 367 US 740.
400
Association 18.2
bargaining to be justified on the grounds that it promotes internal union democracy as

well as a fostering of union participation in broader political debates.12 Similarly, a court
could take the view that a professional regulatory body may not make fees for activities
unrelated to the associations primary purpose mandatory. Or a court might just as well
conclude that as long as the compulsory membership in a regulatory association does
not restrict the membership from disagreeing with the association’s views, then neither
the right to associate (or to dissociate) nor the right to expression is being infringed.13
In a second setting, an association, as a creature of statute, may force individuals to
engage in activities in which they would prefer not to participate. Many courts incline
towards the proposition that the right to associate includes a right not to be compelled to
join an association fundamentally at odds with a person’s convictions.14 The European
Court of Human Rights held that the forced association contemplated by French law
violated the right not to belong to an association and the right not to be compelled to join
an association fundamentally at odds with a person’s convictions.
In a third setting, political entities may attempt to coerce participation.15 Such
compulsion cannot be squared with even the most desiccated form of democracy.
(e) Unprotected associations

The eclectic grounds for associational freedom should strongly suggest that there are
very few kinds of association which enjoy no constitutional protection. Given the
freedom’s wide protective ambit, it is perhaps more appropriate to ask what kinds of
associations clearly do not serve the values which animate the freedom and should not,
therefore, enjoy any constitutional protection. Two candidates suggest themselves:
criminal associations and associations that directly threaten the constitutional order.
Criminal associations arguably fall outside the clause’s protective ambit because they
do not help to realise a rich and varied civil society or any of the macro-social ends
which flow from such a society. While one should not wish to underestimate the positive
contributions of some subversion for social growth and social capital, or even for
personal identity, we would be on safer ground arguing that criminal associations
actively undermine the open and democratic society to which the Constitution aspires.
Similarly, while criminal associations may aid certain subversive forms of self-
realisation, these forms of self-realisation cannot be safeguarded without threatening the
rule of law and a democratic constitutional order. The failure to realise either positive
12
See, eg, Lavigne v OPSEU (1986) 33 DLR (4th), 174; Association of Professional Engineers of
Saskatchewan v SGEU (1992) 91 DLR (4th), 694 (compulsory dues not compelled association, merely condition
of employment, and employment not coerced).
13
Morrow v State Bar of California (9th Cir 1999) 188 F 3d 1174.
14
See Chassagnou v France (2000) 29 EHRR 615. Farmers with relatively small holdings were forced by law
to become members of municipal hunting associations and to transfer hunting rights over their land to these
hunting associations and their members. The European Court of Human Rights held that the right to associate
included the right not to belong to an association and that the state could not compel a person to join an
association fundamentally at odds with that person’s convictions.
15
See Commercial Farmers Union v Minister of Lands, Agriculture and Resettlement, Zimbabwe 2001 (2) SA
925 (ZS) which supports the recognition of a constitutional right to disassociate in the context of coerced political
participation. The Zimbabwe Supreme Court held that the forced attendance of farmers and farmworkers at
meetings organised by the local ZANU (PF) branch violated the right of freedom of association guaranteed by
s 21 of Zimbabwe’s Constitution.
401
social ends or acceptable forms of self-realisation justifies the categorical exclusion of

criminal associations from the freedom’s protective ambit.16
Failure to effect acceptable forms of self-realisation, the furtherance of constitutive
attachments or the accretion of social capital also justifies the categorical exclusion of
associations that directly threaten the constitutional order. Our judicious approach to
exclusions suggests that only those organisations which possess the capacity to subvert
that order and which have demonstrated clearly their intent to use that capacity ought
not to enjoy constitutional protection.17 This rule draws a distinction between
associations that merely advocate the government’s overthrow—which deserve at least
prima facie protection—and associations that demonstrate through preparation and
action that they are bent on non-peaceable governmental change.
18.3 LIMITATIONS ON THE RIGHT
(a) Character of the analysis

If many associational rights are buttressed by other constitutional rights, then the nature
of the limitations review they receive will, in substantial part, be contingent upon the
level of constitutional importance accorded to the buttressing right. As a result, varying
degrees of protection will exist for different kinds of associations. Even this rendering of
the scrutiny afforded associational rights does not capture the truly complex character of
the analysis. On closer inspection we see that the success of the state in providing
justifications for its interference may not necessarily correlate with the level of
protection afforded the association by reference to some other provision in the Bill of
Rights. Some highly protected associations may be very susceptible to state
16
This approach is open to the criticism that by excluding criminal associations from the protection of the
freedom we suppress artificially the very sort of question the Constitution requires the court to ask, namely: is the
criminal statute in question unconstitutional on the grounds that it violates the freedom to associate? While the
criminal association exclusion does have the potential to cover associations which, although currently
criminalised, should be entitled to constitutional protection, there are four possible responses to the problem.
First, one obvious distinction is between those associations that advocate a change in the law and those
associations whose aim is the pursuit of criminal ends. It should be uncontroversial to claim that associations that
simply seek to alter the law in order to decriminalise a certain form of behaviour are entitled to constitutional
protection. It should be equally uncontroversial to claim that associations whose aim is the pursuit of criminal
ends are not—as a general matter—entitled to such protection. Secondly, the threshold test for criminal
associations need not always entail a mechanistic application of the existing criminal law to the association in
question. What counts as a criminal association excluded from the protection of the freedom may be the subject
of a more subtle discrimination by the court as to which criminal associations definitely do not and cannot serve
the values underlying the freedom and which criminal associations might just serve those values. Thirdly, even if
the criminal association which we wish to see protected did not survive under a more subtle threshold test, it is
more than likely that the association in question could find constitutional solace elsewhere. The associations that
warrant constitutional protection are almost invariably protected by some other constitutional right. While it is
conceivably possible that the criminal association in question may fail to secure protection under some more
subtle test, if it warrants constitutional protection, it will likely find it elsewhere. Fourthly, we could reject a
wholesale categorical exclusion for criminal associations. Under this last and least desirable option, we would
then be faced with the choice of excluding criminal associations from the ambit of the freedom on an ad hoc basis
or affording all criminal associations prima facie protection and then deciding whether restrictions on the
association’s freedom are justified under the limitation clause.
17
Article 9(2) of the German Basic Law provides that an association may be dissolved if it threatens the
democratic constitutional order of the state. But see G Pienaar ‘Freedom of Political Association in South Africa,
Germany and USA’ 1993 TSAR 233, 238: ‘This does not mean that organizations may not criticise the
government or constitutional order, but that violent aggressive negation of and attempts to destroy the
democratic, constitutional order are factors which may lead to the prohibition of the organization’.
402
Association 18.3
intervention, while some associations which receive little express judicial solicitude are
less likely to be interfered with justifiably. At first blush this result seems
counter-intuitive. But it begins to make sense when one recalls that the proportionality
of a limitation does not depend solely upon the value of the associational interest
asserted, but also depends upon the ‘intensity’ of the interest offered as justification for
the limitation. Thus the public nature of the functions fulfilled by political associations
not only legitimises the higher level of protection offered to them but also serves as the
justification for significant state interference in such associations. On the other hand,
while associations that serve few if any public or quasi-public functions may not be
deserving of any special degree of constitutional protection, they are less apt to be the
object of state interference because the state possesses fewer compelling reasons to
interfere in their affairs. The more the public goods distributed by an association or the
more public its function, the more likely it is to be subject to legitimate state
intervention.
(b) Grounds for limitation

Associational freedom is not an unalloyed good. Associations have their dark sides.
They may pursue ends that threaten the well-being of society or some of the individuals
therein. They may gain a monopoly of power over an area of social life that enables
them to dictate the distribution of goods associated with that sphere of social life and to
preclude others from the receipt of such goods. They may be sufficiently insular and
exclusive that their mere existence reinforces prevailing prejudices. The state may wish,
in such circumstances, to interfere with the freedom of association in order to secure the
safety of society, to realise substantive equality, and to promote tolerance. State
intervention in the service of these three ends is likely to take one of four forms: (1)
banning; (2) a forced change in entrance and voice consistent with the dictates of
equality; (3) requiring the internal organisation of an association to conform to basic
democratic principles; and (4) an attempt to prevent undue coercion.
(i) Banning
The banning of certain criminal associations per se is unlikely to generate controversy.
Controversy is only likely to be aroused when the government seeks to ban political or
expressive associations.18 In Germany, for example, banning is regarded as a legitimate
response to associations that aim to undermine or destroy the state’s free and democratic
constitutional order.19 However, such a drastic measure should be employed
circumspectly. Very clear evidence of a concerted effort to destroy the constitutional
18
I am not suggesting that bannings of non-political associations should not engage the courts. Given this
country’s history, all laws criminalising association should be carefully scrutinised. For example, the Group
Areas Act 41 of 1950 and the Prohibition of Mixed Marriages Act 55 of 1949 clearly infringed everyone’s
freedom to associate. The abuse of law to proscribe political association was particularly profound in the
apartheid era. In 1950 the National Party Parliament passed its first major piece of anti-political association
legislation—the Suppression of Communism Act 44 of 1950. This Act was successfully employed for more than
25 years to suppress almost all opposition to apartheid. In light of this repressive history great caution should be
exercised before banning any political entity.
19
Article 9(2) of the Basic Law reads: ‘Associations, the purposes of which conflict with criminal laws or
which are directed against the constitutional order . . . are prohibited’. But compare Brandenburg v Ohio 395 US
444 (1969) (First Amendment values—and by implication the freedom of association—permit the Ku Klux Klan
to articulate virulently racist and anti-semitic beliefs and do not allow the state to proscribe advocacy of force to
effect political, social or economic change except where advocacy will produce imminent lawless action.)
403
order is required before a ban is imposed.20 Such an evidentiary requirement is rarely

satisfied in well-ordered and stable democracies.
(ii) Equality
A more likely form of state interference is the requirement that certain associations open
themselves up to a wider potential membership because they control access to important
social goods. The Promotion of Equality and Prevention of Unfair Discrimination Act 4
of 2000 does just that. But the Act goes further and makes equality per se an
overridingly important goal. A requirement of equality because an association provides
access to a particular set of social goods and a requirement of equality because a society
believes all individuals and groups are always entitled to substantively equal treatment
will generate different outcomes.21 Associations discriminate by choosing the persons
with whom they will and will not associate. An interpretation of the Equality Act that
privileges ideology over redistribution runs the risk of undermining the associations that
actually make political pluralism, cultural diversity, individual autonomy and social
empowerment possible.
The crisp question then is: when, or under what conditions, is an association entitled
to exercise its right to determine its membership criteria free from external intervention
based on our society’s commitment to equality? The analytical framework for
answering this question already exists. The tests for unfair discrimination already built
up by the Constitutional Court will engage exclusionary associational practices.22 At a
minimum, an association that has membership policies that discriminate will have the
burden of showing: (1) a rational connection between its discriminatory policy and the
association’s ends; and (2) where such a rational connection exists, that the ends of the
association are worth maintaining despite the discrimination inherent in its membership
policies.
(iii) Democracy
A third form of government interference will involve attempts to require political
associations—and perhaps other associations—to structure their internal affairs in a
more democratic and egalitarian fashion. Here the basic question is to what extent the
state’s interest in the integrity of a democratic process and a democratic society justifies
the infringement of a political party’s associational right to order its affairs as it wishes.
If you start from the premise that political parties and associations are largely ‘private
orderings’ created to pursue private ends, then the state will have to go some distance to
demonstrate its need to meddle.23 If, on the other hand, your departure point is that
20
See, for example, South African National Defence Union v Minister of Defence 1999 (4) SA 469 (CC) [8]
for an account of the purpose of expressive rights (ss 15, 16, 17, 18, 19 of the Constitution) in a constitutional
democracy.
21
See Hurly v Irish-American Gay, Lesbian and Bisexual Group of Boston (1995) 515 US 557. The GLIB
asked to be allowed to march in Boston’s annual Saint Patrick’s day parade. The US Supreme Court finessed the
difficult issues raised by GLIB’s egalitarian claims by analysing the alleged fit of GLIB’s expressive conduct with
the parade organiser’s exclusionary practices. GLIB was the only such group excluded. A rightly decided Hurley
might have held that where no link could be established between the association’s purpose and its practice, then
the state might exercise a presumption in favour of intervention on the grounds of equal treatment and respect.
22
On unfair discrimination see, further, Chapter 9 below.
23
US case law tends to support a ‘liberal’ view of political parties. See, for example, Tashjian v Republican
Party of Connecticut 479 US 208 (1986) (statute barring independent voters from participating in Republican
Party primaries violated the Party’s ‘First Amendment right to enter into political associations with individuals of
404
Association 18.3
political parties and associations are essential for a functioning representative

democracy, then you would argue that party structures must be democratic in order to
serve democracy and that any deviation from democratic principles in the party’s
internal affairs must themselves be justified.24
The state’s interest in the democratic process may also take the form of exclusionary
rules. The state may prevent members of the police force, the security forces, the civil
service and other government employees from direct participation in the affairs of
political parties and electoral politics.25 The reason for such exclusion is twofold. First,
in countries such as South Africa, the police and security forces have, historically, been
actively involved in the suppression of political activity at the behest of the state. A
newly formed democratic state may, therefore, have a substantial interest in
demonstrating that the police and security forces are no longer tools of repression nor
vehicles for the realisation of state policy by untoward means. Exclusion of police and
security force members from politics demonstrates the commitment of the state to the
impartial enforcement of the law, the willingness of politicians to bow to the electorate’s
desire for democratic change and the recognition that the de-politicisation of the security
forces fosters a culture in which the military does not see itself as having an interest in
particular political outcomes. Secondly, the exclusion of civil servants and other
government employees from direct political activity—running for office and canvassing
for votes—serves the state’s interest in not having the electorate view the government as
serving the narrow interests of a given political party.26 Moreover, it prevents
individuals and groups from using the apparatus of the state—say the postal system—to
serve the ends of a particular political party.
its own choosing’); Democratic Party of the United States v Wisconsin 450 US 107 (1981) (Wisconsin law
requiring delegates to vote in compliance with results of the state’s open primary violates the Party’s
associational right to choose its delegates as it sees fit). But see Marchioro v Chaney 442 US 191 (1979)
(upholding Washington law requiring that the major parties have a state committee with two representatives from
each county on grounds that a state’s interests in conducting elections in a ‘fair and orderly fashion is
unquestionably legitimate’).
24
The state’s interest in opening up political associations flows from considerations of involuntariness. If our
citizenship or membership in a given state is largely involuntary and exit is difficult, if not impossible, then our
capacity to leave a given set of political institutions is by necessity limited. The involuntariness of our political
associations makes it incumbent upon the state to create meaningful avenues for political participation. Without
such avenues—and the franchise is insufficient—the citizenry are no better than hostages (however benign their
caretakers).
Associational rights also require a political party to refrain from commandeering the apparatus of the state in
order to discipline members of the party. It seems especially critical that where, as in South Africa, a single party
controls the most important levers of power, that the same party must not be able to use that power in order to
further the interests of a faction within the party. What justifies the state’s intervention within party politics to
ensure democratic processes also prevents those who govern the state from interfering with party politics in a
manner that undermine democratic processes.
25
See s 199(7) of the Constitution; s 46 of the South African Police Services Act 68 of 1995. See also Van Dyk
v Minister van Veiligheid en Sekuriteit (TPD 29 April 2003, unreported) (state entitled to bar members of police
force from standing for public office in order to instil greater confidence in the manner in which security
personnel enforce the law.)
26
But see Vogt v Germany (1996) 21 EHRR 205 (state has a legitimate interest in ensuring an unbiased civil
service; however, the dismissal of a civil servant—in this case a secondary school teacher—for her refusal to
resign from the German Communist Party was a violation of her right to association and a sanction
disproportionate to the aim pursued).
405
(iv) Coercion
It would seem relatively uncontroversial to argue that the state will be entitled to
interfere in associational life where members of an association are clearly coerced into
participation. The difficulty with coercion as a justification for intervention lies not with
instances of physical constraint, but with ways of being in the world that radically
constrain how individuals act. With children, one difficulty with such intervention is that
we generally give parents a great deal of autonomy with respect to the manner in which
they raise their children.27 With adults, one difficulty is the paternalistic presumption
that the government can substitute its judgement of what is best for that of its citizenry.
Inquiries into non-physical coercion of children and adults are united by considerations
of exit.28 One must take great care, however, when interfering in associational life that
one is not too quick to allow attributions of ‘false consciousness’ to masquerade as
concerns about the inability of children or adults to vote with their feet.
(c) Analysis in context

(i) Political associations
There are at least two likely situations in which the interest behind the restriction might
trump an organisation’s associational freedom. The first situation is one in which the
state wishes to alter the internal affairs of political parties. Generally, the state will
attempt to justify its interference by arguing that the close relationship between political
parties and the state requires intervention in the party’s internal affairs to ensure that the
party serves its representative function in a representative democracy. For example, in
some jurisdictions representative democratic politics demands that the members of
political parties elect the candidates of their political party to represent them in
elections.29
The second situation is one in which the state attempts to open up restrictive party
membership policies. The state might argue that democracy requires that political
demands are made by representative groups of interested individuals. On this account,
political parties or associations which excluded individuals on the basis of race, creed,
colour, sex, sexual orientation or some other invidious characteristic would not be
representative.30 The compelling counter-argument is that in cases where the
discrimination and exclusion actually serves the expressive ends of the association—and
27
See Christian Education (note 4 above) in which the Constitutional Court effectively holds that parents have
no right to raise their children however they might like. However, the judgment, while denying the right of
teachers to dole out corporal punishment in schools, assures parents that they still possess that privilege within
the home.
28
See S v Jordan 2002 (6) SA 642 (CC).
29
The Constitutional Court has yet to be drawn into a discussion of what democracy actually requires. In
United Democratic Movement v President of the Republic of South Africa (No 2) 2003 (1) SA 495 (CC) the court
held that while floor-crossing legislation must comply with constitutional requirements, it was not
unconstitutional per se. To the extent that the floor-crossing legislation did not clearly violate rights of
participation and association, the court was quite right not to interfere with minor changes to the political edifice.
However, as I have argued above, given the involuntariness of our basic political associations it is quite fair to
hold the state to a much higher standard in ensuring that the capacity for political association is real and the
capacity of such associations to be heard is meaningful. See De Lille v Speaker of the National Assembly 1998 (3)
SA 430 (C) (suspension of a member of Parliament for contempt constituted a denial of democratic rights to
participation).
30
See Smith v Allwright 321 US 649 (1944) (Democratic Party rule barring blacks from participating in
primaries declared unconstitutional on grounds that election of Democratic candidate would legitimate the
406
Association 18.3
where state intervention would alter those expressive ends—then we may wish to permit
expression to trump the state’s interest in representivity and equality.31 Though perhaps
unpalatable, this position is entirely consistent with the notion that associational
freedom demands that we give associations the power to police their membership in
order to ensure that the association remains true to its founding tenets.
The Promotion of Equality and Prevention of Unfair Discrimination Act might be
understood to require a commitment, by all those exercising state or public power, to
realise the ends of substantive equality and articulate policies designed to redress
discrimination.32 Such a statutory imperative could be used to ensure that persons who
have historically been denied access to the levers of political power are able to belong to
the political party of their choice and to participate meaningfully in that party’s
deliberations.33
(ii) Intimate associations

With associations that are supported by some other constitutional right or imperative,
distinctions are rarely made between state regulation of the association’s goals and state
regulation of the association itself as the means to achieving that goal. Consequently, the
degree of protection afforded the association is often derived from the constitutional
protection for the association’s objective. This conflation of goal and means is hardly
problematic with respect to intimate associations. The intimate associational goal and its
means are inextricably linked. As a result, intimate associations usually receive the
strong constitutional protections that flow from privacy rights or human dignity rights.
If we take sexual congress or traditional partnerships as the paradigmatic examples of
intimate association, there appear to exist few good reasons for state regulation or
interference.34 After all, few public goods seem to be at stake. Considerations of
identity, capture and social capital strongly militate against interference. Furthermore,
considerations of equality usually cut against, and not in favour of, traditional forms of
state intervention.
However, not all intimate associations are partnerships based upon sexual union.
Many intimate associations are nuclear and extended family structures. With respect to
the intimate relationships created by the family, plenty of potentially good reasons exist
racially discriminatory and unrepresentative practices of the party); Terry v Adams 345 US 461 (1953) (political
association which determined Democratic Party nominations and discriminated against blacks violates right to
vote).
31
See W Marshall ‘Discrimination and the Right of Association’ (1986) 81 Northwestern Univ LR 68.
32
See ss 25, 26 and 27 of the Act.
33
How far the Constitutional Court will go in this area is unclear. The decision in United Democratic
Movement (note 29 above) can be read as a demonstration of a reasonable reluctance by the court to interfere in
the coordinate branches’ considered judgment about what counts as multi-party politics and representative,
participatory democracy. Or it can be read as a very technical judgment that abjured any unnecessary judgments
about matters not squarely before the court.
34
US case law on state interference with intimate association has been inconsistent, if not incoherent.
Compare Griswold v Connecticut 381 US 479 (1965) (striking down law impairing private heterosexual
relations) with Bowers v Hardwick 478 US 186 (1986) (upholding law impairing private homosexual relations).
However, in Lawrence v Texas 539 US 558 (2003) the US Supreme Court has now found that homosexuals
possess the same rights to privacy as heterosexuals. See also Roberts v United States Jaycees (note 5 above).
Roberts and its progeny identify four relatively useful criteria for determining whether an association qualifies as
an intimate association: (1) small size, (2) private purpose, (3) selectivity of membership, and (4) insularity of the
group. Read together Lawrence and Roberts should buttress the claim that homosexuals and heterosexuals
possess the same kind of intimate associational rights.
407
for state intervention.35 First, children are usually not in any position to protect their
interests or even determine those interests. Secondly, the state has an interest in making
certain that its future citizens are in a position to discharge their responsibilities to the
state and to others. At a minimum, the state has a clear interest in making certain that the
protection of the intimate association of the family is not a cover for abuse or neglect.
The knottier question is whether the state is entitled to ensure that children receive the
best possible outcome. Both the minimalist and the maximalist approach recognise that
children are not the sole property of their parents. The minimalist approach seems to
only recognise actual harm, perhaps only actual physical harm, as grounds for
intervention. The ‘best interest of the child’ test, as manifest in the Constitution and the
case law, would seem to demand more. But how much more? The maximalist approach,
while taking children very seriously, runs the risk of not being able to find a suitable
environment for children outside a family structure. The Constitutional Court has
recognised both the importance of the family structure and its limits. It has intervened to
support parental relationships with children born out of wedlock and the adoption of
children by non-citizens.36 On the other hand, it has suggested that corporal punishment
within the home is constitutionally permissible and that families with children are not
entitled to any special treatment vis-à-vis emergency housing.37 Its decisions have thus
far been to steered a path between minimalism and maximalism.
(iii) Cultural associations

To the extent that cultural associations confine themselves to bona fide cultural
activities, they should be relatively immune to state intervention.38 By permitting
communities to create schools based upon a common culture, language or religion, the
35
The Constitutional Court has demonstrated a willingness to extend the definition of the family in order to
protect basic constitutive attachments. See Du Toit v Minister of Welfare and Population Development 2003 (2)
SA 198 (CC) (lesbian partners in a long-standing relationship successfully challenged the constitutional validity
of legislation providing for the joint adoption and guardianship of children by married persons only); Booysen v
Minister of Home Affairs 2001 (4) SA 485 (CC) (foreign national spouses seeking to work in South Africa
successfully challenged statutory provision requiring that they apply for a work permit while outside the country
and barring them from re-entry until permit is issued); Dawood v Minister of Home Affairs 2000 (3) SA 936 (CC)
(declaring invalid provisions of the Aliens Control Act that regulated the circumstances in which foreign spouses
of South African residents were allowed to reside temporarily in South Africa pending the outcome of their
applications for immigration permits). All three cases turned on a finding that the dignity of the family unit was
impaired. As O’Regan J says in Dawood [35]: ‘It cannot be said that there is a more specific right that protects
individuals who wish to enter into and sustain permanent intimate relationship than the right to dignity in s 10.
There is no specific provision protecting family life as there is in other constitutions and in many international
human rights instruments’. The learned judge is wrong in two respects. First, association must, in fact, be that
more specific provision of the two provisions. It possesses a much more circumscribed ambit than dignity.
Secondly, many other jurisdictions do rely upon freedom of association to protect intimate associations.
36
See Fraser v Children’s Court, Pretoria North 1997 (2) SA 261 (CC) (unwed fathers entitled to same rights
of access as other fathers); Minister of Welfare and Population Development v Fitzpatrick 2000 (3) SA 422 (CC).
37
Compare Christian Education (note 4 above) (children may not be subject to corporal punishment in private
schools; but court finds that same such punishment may occur within the sanctity of the home) with Government
of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) which reverses, in part, the High Court
decision in Grootboom v Oostenberg Municipality 2000 (3) BCLR 277 (C) holding that the vulnerability of
children supports—in terms of s 28(1)(c)—a decision to put municipality on terms to produce shelter for those
families in desperate need. The Constitutional Court held that there was no independent claim under s 28(1)(c),
only a general claim to housing under s 26.
38
Ex Parte Gauteng Provincial Legislature: In Re Dispute Concerning the Constitutionality of Certain
Provisions of the Gauteng School Education Bill of 1995 1996 (3) SA 165 (CC). The Court held that s 32(c) of
the Interim Constitution permitted communities to create schools based upon common culture, language and
religion. It further held that s 32(c) of the interim Constitution provided a defensive right to persons who sought
408
Association 18.3
Constitutional Court in Gauteng School Education Bill expressly recognised the

importance of such attachments and associations for both individual and group identity
as well as social cohesion. The reasoning of Gauteng School Education Bill is subject to
two provisos. First, as the High Court in Laerskool Middelburg v Departementshoof,
Mpumalanga Departement van Onderwys correctly noted, the corollary that the right to
single-medium public schools does not and cannot automatically trump the right of all
public school students to education in the official language of their choice.39 Secondly,
culture cannot be used as a synecdoche for race. In Matukane v Laerskool Potgietersrus,
the High Court found that discriminatory entrance policies ostensibly based upon
language and culture in fact were intended to discriminate on the basis of race.40 As a
result, Matukane court found that the school’s admissions policies violated the right to
equality of the complainants and could not be justified on the grounds of cultural,
minority or associational rights.
If a cultural association can demonstrate that its discriminatory membership policies
legitimately help to preserve a community’s cultural life, then the associational right to
determine membership should trump most other interests. As the High Court in
Wittmann v Deutscher Shülverein, Pretoria reasoned, the right to maintain a private
German school educational institutions based upon culture, language and religion is
predicated upon the capacity to exclude non-speakers, non-believers or non-
participants.41 This rationale is entirely consistent with justifications for associational
freedom based upon constitutive attachments and capture. One cannot maintain either
group identity or the institutions that support that identity if everyone has access to, a
claim upon and some control over the workings of an association. Moreover, the state’s
interest—and anyone else’s interest—in equality here is rather weak because the goods
provided by such associations are not particularly public.42
Occasionally, however, the interest in equality may justify restrictions or bans on a
particular cultural practice. The status, for example, of polygamous unions according to
Muslim rites raises such a conflict.43 Conversely, if the cultural association has a
primarily political or economic purpose, state interference with the membership
policies—and perhaps even the internal affairs—of the association may well pass
constitutional muster.44
to establish such educational institutions and that it protected that right from invasion by the state. It did not,
however, confer on the state an obligation to establish such educational institutions [7].
39
Laerskool Middelburg v Departementshoof, Mpumalanga Departement van Onderwys 2003 (4) SA 160 (T).
The High Court was clearly troubled by the conflict between the right to a single-medium school and the right to
be educated in the official language of one’s choice. In deciding that the ‘minority’ students must be
accommodated, the court correctly concluded that the right to a single-medium public educational institution was
clearly subordinate to the right which every South African had to education in a similar institution and to a clearly
proven need to share education facilities with other cultural societies.
40
Matukane v Laerskool Potgietersrus 1996 (3) SA 223 (T).
41
Wittmann v Deutscher Shülverein, Pretoria 1998 (4) SA 423 (T).
42
See Wisconsin v Yoder 406 US 205 (1972) (Amish parents permitted to educate their children at home);
Pierce v Society of Sisters 268 US 510 (1925) (Catholics allowed to educate their children in private school);
Santa Clara Pueblo v Martinez 436 US 49 (1978) (prohibiting undue state interference with Native American
tribal autonomy).
43
See eg Kalla v The Master 1995 (1) SA 261 (T) (raising but not deciding the issue of whether the freedom of
religion guaranteed by s 14(1) of the interim Constitution afforded recognition to potentially polygamous unions
according to Muslim rites.)
44
That said, the link between culture, social capital and hard capital throws up a most complex set of
problems. Communities often support financially other members of their community. Quite often the access to
capital comes with terms extraordinarily favourable to the borrower. How should we treat such standing cultural
409
(iv) Economic associations

Quite a different set of considerations apply to business associations. In most
constitutional jurisdictions, the state is entitled to place substantial burdens upon
economic association.45 The primary reason is that business associations control the
distribution of important social (public) goods and must be subject to rules of fair play.
In addition, where existing regulations strike far into the heart of an association’s
membership policies or limit the associational choices of an individual, a constitutional
attack is more likely to be based upon infringements of the rights to trade, profession or
occupation or the right to property.
Two kinds of power exercised by economic associations—practice requirements by
legal regulatory bodies and restraints of trade by private businesses—have attracted
recent judicial scrutiny.46 The courts have largely resisted direct constitutional
engagement.
Attempts by advocates to gain direct access to the market for legal services have
occupied the courts on a number of occasions. In all three De Freitas decisions—in the
High Court,47 the Supreme Court of Appeal48 and the Constitutional Court49—the courts
declined to uphold constitutional challenges to rules barring direct access. The High
Court relies heavily on the traditional rationales for the distinction between the bar and
side-bar and holds that the distinction between attorneys and advocates remains
manifestly rational because clients were indemnified with regard to loss of trust money
by attorneys but not by advocates. Neither the economic activity rights in s 26 of the
interim Constitution nor some notion of the right to associate with clients of one’s own
choosing on terms of one’s own choosing (or not to associate with the Law Society)
features in the High Court judgment. The Supreme Court of Appeal judgment likewise
does not engage in any serious analysis of either the economic rights or associational
rights of De Freitas. Judge Cameron, in a concurring judgment, merely points out that
the rules of such regulatory bodies must comply with the constitutional requirements of
rationality and non-arbitrariness.50
Despite the limited constitutional value of the De Freitas judgments, two High Court
cases have recognised at least some of the implications of legal regulatory bodies for
freedom of association. In General Council of the Bar of South Africa v Van der Spuy,
the High Court contrived a three-part test to measure the compatibility of practice rules
compacts? It is easy to subject such culturally-based economic arrangements to charges of bias. That goes
without saying. The question is: what can we do about it? Neither outlawing such funds nor opening them up is
likely to have the desired outcome. In either case, the fund goes underground or out-of-existence. Unlike banks,
whose aim is the bottom line and who profess to serve the broader public, these rotating capital funds are
designed, most often, to support members of the community in need or in need of backing to start a business. The
aim is the strengthening of community life. To the extent that the fund continues to serve such an aim—one that
ultimately promotes cultural life and social capital—the grounds for overriding its discriminatory and
exclusionary policies and aims are limited.
45
See, for example, Oostelike Gauteng Diensteraad v Transvaal Munisipale Pensioenfonds 1997 (8) BCLR
1066 (T) (rejecting an associational challenge under s 17 of the interim Constitution to compulsory membership
of a pension fund).
46
See, further, ch 22 below.
47
Society of Advocates of Natal v De Freitas 1997 (4) SA 1134 (N).
48
De Freitas v Society of Advocates of Natal 2001 (3) SA 750 (SCA).
49
De Freitas v Society of Advocates of Natal 1998 (11) BCLR 1345 (CC).
50
De Freitas (SCA) (note 48 above) 762–763, citing with approval S v Lawrence 1997 (4) SA 1176 (CC)
[34]–[35].
410
Association 18.3
with constitutional dictates.51 Only the last leg of the test—that regulations may not
really be barriers to entry masquerading as qualifications—engages the substance of
commercial association. In Law Society of the Transvaal v Tloubatla, the High Court
concluded that the freedom of association includes the right to dissociate. 52 However,
because the High Court chose to read the internal limitation of s 22(2) of the
Constitution into s 18, the requirement that a member of the Law Society must possess a
fidelity fund certificate to practice did not even amount to a prima facie infringement of
the right to associate.53 The limited scope of the courts’ rulings in Van der Spuy and
Tloubatla signal that regulations of commercial association, in particular professional
association, need only satisfy some minimal level of rationality to pass constitutional
muster.
The majority of cases in the area of restraint of trade have largely followed the same
form. That is, they have failed to engage the Constitution directly and where they have
done so have primarily held that the common-law tradition of ‘sanctity of contract’
reflected in restraint of trade clauses trumps any countervailing economic activity rights
or associational rights.54
(v) Empowering associations

Associations that aim to empower historically disadvantaged groups support the
Constitution’s commitment to affirmative action and substantive equality.55 These
associations may need to have discriminatory membership policies if they are to be able
to police their resources and be in a position to achieve their constitutionally protected
objective. When faced with such an association, the state may be hard pressed to show
that it has an interest in regulating the membership policies and internal affairs of such
an association on racial or gender equality grounds. After all, it is the constitutionally
protected goal of realising real racial and gender equality through affirmative action that
justifies the exclusion in the first place.56
However, to pass constitutional muster, the exclusive empowering association should
have to demonstrate two things. First, it should have to show that its membership is
historically disadvantaged and continues to be disadvantaged. Secondly, it should have
to show that the exclusive membership policy promotes the goal of substantive equality.
Neither inquiry is simple. The first may beg questions of both ongoing disadvantage
as well as relative historical disadvantage. The second throws up the problem of what
counts as an association of historically disadvantaged persons designed to redress
various forms of inequality. Is any association of historically disadvantaged persons
51
General Council of the Bar of South Africa v Van der Spuy 1999 (1) SA 577 (T).
52
Note 10 above.
53
I say ‘would appear’ because it is not clear whether the Tloubatla court believes that there has been an
infringement of the right and because the court decides ‘one need not . . . consider whether under s 36(1) of the
Constitution a limitation of s18 to provide for the matters in the Attorneys Act is warranted.’ (Ibid 66). All the
court does say is that a fidelity fund certificate, like rules regarding admission, conduct, contribution and the like,
is deemed to be a normal and acceptable limitation of the right to dissociate in the foreign jurisdictions surveyed.
54
See the discussion in para 22.4 in Chapter 22 below.
55
A properly constructed affirmative action programme is a complete defence against a charge of unfair
discrimination.: Minister of Finance v Van Heerden 2004 (6) SA 121 (CC) [36]–[37]. See, further, para 9.5 in
Chapter 9 above.
56
See C Albertyn et al (eds) Introduction to the Promotion of Equality and Prevention of Unfair
Discrimination Act 4 of 2000 (2001) 132 (alluding to the possibility that a similar justification of discriminatory
practices by historically disadvantaged groups will place such associations beyond the reach of the Equality Act).
411
insulated from attempts by excluded parties to secure access? Would a black South
African only club committed to black nationalism, but not to any clear remedial efforts
to eliminate vestiges of apartheid, be entitled to exclude non-black applicants?57 It might
be.58 But the only acceptable grounds for its exclusionary practices would be those
related to expression and not to a constitutionally or statutorily mandated goal of
equality. The reason for reliance on expression—and not equality—is clear. The club in
question has a primarily expressive purpose. It is not engaged, directly, in
empowerment.
(vi) Small social associations

Small social associations, despite the absence of additional direct constitutional support,
are unlikely targets for state interference. Empirically, they are unlikely to attract state
attention because the state has limited resources and will generally have much larger fish
to fry. Secondly, even if the state, or applicants using the Promotion of Equality and
Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA), did wish to challenge
such an association, there are few good substantive reasons for the interference. In most
instances the small social club will not control the distribution of any important shared,
social good. It will simply be the setting for friendly human relations. Where the small
association serves the ‘purely’ local and social ends of its members, the state’s interest
in opening up the membership is ‘purely’ ideological. Unless we wish to grant the state
the power to enforce its ideology at every turn, such purely ideological grounds for
interfering in an association’s affairs should be rejected.59
That a small social club or an informal gathering may not control the distribution of
any important shared social good does not mean that it is not the setting for important
social goods. A small neighbourhood chess club enables these girls to build friendships
and hone their chess skills. Even if such a club is of limited duration, it is a crucible in
which the girls learn about the loyalty such kinship creates and the trust sustained bonds
require. Much the same might be said of the ‘dinner party’ that features so often in
discussions about association and exclusion. It must be the case that such arrangements
between friends (and acquaintances) allow us to develop the kinds of qualities critical to
more general, and more public, social relationships. And lest we think that all
associations must either work to achieve justice or provide the setting for the
development and refinement of character, sometimes girls just want to have fun. It is an
impoverished jurisprudence (of association) that forgets that.
(vii) Security forces

Recall that the argument from democracy underwrites the state’s interest in preventing
members of the security forces and the civil service from direct participation in political
57
See S M Larsen ‘For Blacks Only: The Freedom of Association of Private Minority Clubs’ (1999) 49 Case
Western LR 359.
58
See New York City Commission on Human Rights v United African Movement, No. MPA95–0851/PA95–
0031 (NYCCHR June 30, 1997) (Commission held that the exclusion and the harassment of a white woman at a
public event sponsored by the UAM amounted to discrimination, warranted compensation, and required that all
future UAM events either meet the definition of ‘private event’ or announce clearly in the media that such events
are limited to UAM members. This case stands for the principle that historically disadvantaged groups are not,
ipso facto, entitled to discriminate.)
59
See West Virginia State Board of Education v Barnette 319 US 624 (1943): ‘If there is any fixed star in our
constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics,
nationalism, religion or other matters of opinion or force citizens to confess by word or act their faith therein’).
412
Association 18.3
party and electoral politics for two basic reasons: (1) in countries such as South Africa,
the police and security forces have, historically, been actively involved in the
suppression of political activity at the behest of the state; (2) a newly formed democratic
state has a substantial interest in demonstrating that neither the security forces nor civil
society is a tool of repression.
The Constitutional Court in South African National Defence Union v Minister of
Defence provides a coherent account of how the political imperative of an unbiased
security apparatus in a post-Apartheid South Africa can be squared with the exercise of
association and other expressive rights by public servants.60 The SANDU court states
that the purpose of the mutually supporting expressive rights found in ch 2—ss 15, 16,
17, 18, 19—is to enable:
groups of like-minded people to foster and propagate such opinions. The rights implicitly
recognise the importance, both for a democratic society and for individuals personally, of the
ability to form and express opinions, whether individually or collectively, even where those
views are controversial. The corollary of the freedom of expression and its related rights is
tolerance by society of different views. Tolerance, of course, does not require approbation of
a particular view. In essence, it requires the acceptance of the public airing of disagreements
and the refusal to silence unpopular views.61
Public servants, especially those in the security services, have obligations and duties that
may legitimately restrict their manner of association and expression. Section 199(7) of
the Constitution states that:
Neither the security services, nor any of their members, may, in the performance of their
functions—
(a) prejudice a political party interest that is legitimate in terms of the Constitution; or
(b) further, in a partisan manner, any interest of a political party.
Against the background of s 199(7) and the Bill of Rights, the SANDU court adumbrates
two basic rules for associational activity by members of the security apparatus even as it
finds two sets of provisions of the Defence Act 44 of 1957 fatally flawed.
First, the SANDU court concludes that ‘members of the Defence Force may not, in
the performance of their functions, act in a partisan political fashion.’62 However, the
255-word definition of ‘act of public protest’ found in the Defence Act, s 126B(2)
read with the Defence Act, s 126B(4) covered conduct ranging from ‘holding or
attendance of a meeting which is calculated to support or oppose any policy or
conduct of the government or of a foreign government’ to any indication of ‘private
or public support or opposition regarding any policy, conduct or principle’ or ‘any
event of national or public concern’. The long but still non-exhaustive definition of
public protest could capture complaints made by a defence force member to her
husband in relation to absolutely any ‘event of national or public concern’ and in the
context of a purely intimate association. Such a complaint—in the context of an
60
See South African National Defence Union v Minister of Defence (note 20 above).
61
Ibid [8].
62
Ibid [11].
413
intimate association—could never be accurately described as public protest or

partisan political conduct.63
Secondly, the SANDU court held that a provision of the Defence Act prohibiting
members of the armed forces from joining trade unions violated both the members’
right to freedom of expression and their right ‘to form and join a trade union’.
Implicit in the majority’s decision—and explicit in Justice Sachs’ concurrence—was
the notion that SANDU members’ freedom of association had been infringed.
However, while deciding that the requirement of strict discipline would not
necessarily be undermined by permitting SANDU members to join a trade union, the
court did note that the structure of a trade union might well differ in a military
environment and that appropriate legislation might justifiably limit the scope of a
soldier’s trade union rights.
In South African National Defence Union v Minister of Defence, the High Court was
asked to assess the constitutionality of a subsequent set of regulations issued in terms of
the Defence Act.64 It found that the regulations—which (a) prohibited union affiliation
or closed shop agreements, (b) barred members from securing union-sponsored legal
representation and (c) allowed for withdrawal of union recognition without
notice—violated rights to collective bargaining (s 23) and association (s 18).
In Van Dyk v Minister van Veiligheid en Sekuriteit, the High Court held that a
police officer had been legitimately terminated from his employment because he had
stood for election as a member of the Democratic Alliance.65 The officer argued that
because his position in the police force—that of a budget analyst—did not require
him to engage with the public directly, the officer’s candidacy could not prejudice
the administration of justice or give the appearance of such impropriety. The High
Court in Van Dyk found that the purpose of the South African Police Force Act was
to eliminate any perception on the part of the public that the administration and
enforcement of the law advanced the fortunes of any political party or undermined
the claims of members of other parties to justice. The Van Dyk court held that the
elimination of any taint of political party bias in the police force in order to instil
greater public confidence in government justified the limitation of the political and
associational rights of the officer in question.66 Such a finding is consistent with the
needs of a nascent democracy committed to the principle that all are equal before the
law and that all can expect to be treated without favour or prejudice.
(viii) Religious associations

Recent case law supports the contention that religious associations and religious schools
have the right to expel members who agree to follow the rules or decisions of the
governing body and subsequently refuse to do so. In Taylor v Kurtstag, the
Witwatersrand High Court upheld the right of the Beth Din to issue a Cherem—an
63
As a result, the Constitutional Court held that the Defence Act’s gloss on the term ‘public protest’ in
s 126B(2) and the extension of its definition of ‘act of public protest’ in s 126B(4) were unconstitutional. It then
severed both subsections from the Defence Act. Ibid [45].
64
South African National Defence Union v Minister of Defence 2004 (4) SA 10 (T).
65
Note 25 above. Section 46 of the South African Police Service Act 68 of 1995 prohibits members of the
SAPS from publicly displaying support for or associating themselves openly with a political party or
organisation. Section 46(2) expressly provides that members may join political parties, attend meetings out of
uniform and vote in elections.
66
See Van Dyk (ibid) 10 (‘The need for a police force that is seen to be impartial speaks for itself.’)
414
Association 18.3
excommunication edict—against a member of the Jewish community who had agreed to

follow its ruling with regard to child maintenance.67 In Wittmann v Deutsche
Schulverein, Pretoria, the Pretoria High Court upheld the right of a school governing
body to expel a student who knew that she was obliged to attend language and religious
instruction classes and who subsequently refused to attend these classes.68 Both cases
underscore the relatively unassailable proposition that in order for a religious
association to remain committed to the practice of certain beliefs in a given
environment, it must control the voice of, the entrance to and the exit from the
association. Or, as the Kurtstag court writes, freedom of association:
guarantees an individual the right to choose his or her associates and a group of individuals
their rights to choose their associates. The right of a group to choose their associates of
necessity means the right to require those who wish to join the group to conform their
behaviour to certain dictates, and the right to exclude those who refuse to conform.69
Religious associations have not fared so well in the few cases to reach the Constitutional
Court. In Prince v President, Cape Law Society, a sharply divided Constitutional Court
held that although a Rastafarian’s right to freedom of religion in terms of s 15(1) of the
Constitution permitted him to engage in Rastafarian rituals, the state was justified in
proscribing the ritual use of cannabis.70 The majority relied heavily on the state’s
evidence that even limited dagga smoking could lead to broader drug use in the country
and greater narcotics trafficking through the country. This ‘evidence’ drove the court’s
conclusion that no meaningful exemption to existing laws could be carved out for ritual
dagga use.
When viewed through the lens of association analysis, the majority’s willingness
to proscribe practices that the association’s members deem central to their way of
being in the world is difficult to explain. There is no issue of an exclusionary
practice, no discrimination, no coercion, no threat to the democratic order. Had a
more mainstream entity sought protection for an ‘illegal’ ritual, one wonders whether
a creative solution might have been found.
The Constitutional Court’s decision in Christian Education South Africa v
Minister of Education would appear to be of greater use vis-à-vis the vindication of
associational rights.71 Christian Education contains valuable language about how
equality jurisprudence tolerates legal asymmetries. The essence of equality under the
South African Constitution, so says the judgment, is that it does not require that we
treat everyone the same way, but that we treat everyone with equal concern and
67
Taylor v Kurtstag 2005 (1) SA 363 (W) [38] (s 18 guarantees an individual the right to choose his or her
associates and a group of individuals their rights to choose their associates; right of a group to choose their
associates of necessity means the right to require those who wish to join the group to conform their behaviour to
certain dictates, and the right to exclude those who refuse to conform.)
68
Note 41 above. (‘Does this mean that private parochial schools which do not receive State aid may not
prescribe obligatory attendance at their morning prayers and confessional religious instruction classes? The
answer is negative. Section 17 of the interim Constitution and s 18 of the . . . [1996] Constitution recognise the
freedom of association. Section 14(1) and s 15(1) respectively recognise the freedom of religion which includes
the right to join others in worship, propagation of the faith etc. Freedom of association entails the right with
others to exclude non-conformists. It also includes the right to require those who join the association to conform
with its principles and rules.’)
69
Note 67 above [37].
70
Note 8 above.
71
Note 4 above.
415
respect.72 And that’s just a fancy way of saying that we need not all act the same
way in order to enjoy the benefits—including the associational benefits—of a liberal
constitution.
Unfortunately, the Christian Education court does not extend the benefit of this
understanding of equality to religious or cultural associations. It declines to give
s 15 or s 31 meaningful content. The judgment assumes that for the purposes of
analysing the constitutionality of s 10 of the South African Schools Act 84 of
1996—which bars the use of corporal punishment by teachers—that ss 15 and 31
have been infringed. Upon moving to the limitations analysis under s 36, the
Christian Education court explains why the state is justified in barring corporal
punishment in schools and why the court is justified in not crafting an order creating
an exemption for such punishment.
The problem with the judgment is not its result. It is perfectly reasonable to
override religious dictates and to bar the corporal punishment of children in schools.
Children are in no position to determine the desirability of a set of religious practices
that may result in harm to themselves. The problem is with the distinction between
the practice of religion in schools and the practice of religion elsewhere, ie the
home. If children lack the capacity to decide for themselves whether religious
practices will prove deleterious to their health—and it therefore becomes incumbent
upon the state to intervene on their behalf—then it would seem reasonable to
conclude that barring religion-sanctioned corporal punishment at home should be no
different than barring religion-sanctioned corporal punishment at school. But that is
not what the court concludes. Instead, it rather sanctimoniously argues that the
parents ‘were not being obliged to make an absolute and strenuous choice between
obeying a law of the land or following their conscience. They could do both
simultaneously.’73 That is, parents could follow their conscience at home—and beat
their children—but still obey the law of the land by having their children attend
school free from corporal punishment. Moreover, save for the imposition of corporal
punishment, says the Christian Education court, the religious schools were not
prevented from maintaining their specific Christian ethos. The Christian Education
court cannot have it both ways. Either the scope for religious autonomy and the
religious community’s constitutive attachments is sufficient to justify corporal
punishment in school and at home or a child’s right to dignity is of such paramount
importance for the state to bar corporal punishment when deployed at school or at
home. To say that the crux of the matter is the use of a teacher as the instrument of
religious discipline is pure sophistry. If the teacher was the parent or the school was
at home, then the court’s basis for enabling the parents ‘to do both simultaneously’
would evaporate.
Unlike the two High Court decisions in Taylor v Kurtstad and Wittmann the
Constitutional Court’s decisions in Prince and Christian Education drive one to the
conclusion that the Constitutional Court has not yet come to grips with the fact that
a meaningful distinction exists between largely ascriptive associations such as a
religious association and voluntary associations such as a cricket board. The notion,
underlying both Prince and Christian Education, is that these religious associations
72
Ibid [42].
73
Ibid [51].
416
Association 18.3
could, if they wanted to, jettison a doctrine or two in order to comply with broader
social and political norms underwritten by the Constitution. Certainly we might
expect the United Cricket Board to align itself with these broader social and political
norms (though not without difficulty), because the team it sends out represents the
nation. But we cannot have such expectations of a religious denomination in a liberal
society. Both the Kurtstad and Wittmann courts recognise that to belong to such an
ascriptive association is to have one’s identity and life shaped in a manner that does
not readily permit the alteration of either belief or act and that to be a member of a
liberal society is to live in a state committed to not so readily dictating the ends of
its citizens. That is not to say that the state cannot intervene in the affairs of a
church, only that it must have regard for the unique character of such associations
and for the fairly high threshold for such intervention.
(ix) Voluntary associations and fair hearings

South African courts have engaged associational rights and fair hearings in four
relatively recent cases. In all four cases—Taylor v Kurtstag,74 Cronje v United Cricket
Board of South Africa,75 Ward v Cape Peninsula Ice Skating Club,76 and Wittmann v
Deutscher Schulverein, Pretoria77—the courts have upheld the rights of associations to
control the grounds for expulsion so long as they met basic standards of procedural
fairness. In Cronje, the High Court deferred to the United Cricket Board when it came to
deciding how and whether to deal with Hansie Cronje once he had been expelled from
the association. In Kurtstag, the High Court deferred to the Beth Din when it came to
deciding whether to excommunicate a member of the community who had asked the
Beth Din for a ruling, submitted himself to the terms of that ruling, and had the
opportunity to contest that ruling. In Ward and Wittmann, the High Courts reversed the
expulsion. But they did not do so on the ground that the expulsion had occurred for
some politically or morally reprehensible reason. Indeed, to the extent that Wittmann
weighs in on the power of an association to terminate membership when the member
acts in a manner contrary to the decisions of the association’s board and engages in
expressive conduct that leads to criticism of the association, it decided that the
association does possess such power. All four cases can be read as standing for the
proposition that a member has vested interests in the association that, at a minimum,
require a fair termination hearing. A non-member, on the other hand, possesses no such
rights. Read this way, Kurtstag, Wittmann, Ward and Cronje seem of a piece. Indeed,
what ties them together at a theoretical level is the notion that once a person has been
granted entry into an association, they accept the basic principles upon which the
association operates and thus the principles that may lead to their exclusion. The
potential for exclusion is part of the consideration the member offers in return for
admittance.78
74
Note 67 above.
75
Cronje v United Cricket Board of South Africa 2001 (4) SA 1361 (T).
76
Ward v Cape Peninsula Ice Skating Club 1998 (2) SA 487 (C).
77
Note 41 above.
78
Kurtstag (note 67 above) [38].
417
(x) Sexual associations

All sexual associations involve an exchange of some sort. Love, pleasure, rage,
humiliation, and, yes, even wealth, all form part of the currency of sexual association.
In the National Coalition cases,79 the Constitutional Court held that the Constitution’s
express commitment to equality with regard to sexual orientation meant that the
statutory and common-law rules that invidiously distinguished homosexuals from
heterosexuals were constitutionally infirm.80 In short, the two judgments place these
sexual associations—and the correlative rights to equality, dignity and privacy as well as
the constitutive attachments of homosexual intercourse—at the centre of protected
associational activity.
But in another judgment, S v Jordan, the Constitutional Court withheld constitutional
protection for consensual sexual associations.81 The apparently critical difference
between National Coalition I and II and Jordan is that the latter turns on the presence of
a monetary exchange and the traditionally despised occupation of prostitution. Upon
closer analysis, none of the court’s distinctions between the various kinds of sexual
association hold up. At least part of the rationale for the rejection of the equality
arguments raised in Jordan rests on both the prostitute and the prostitute’s client being
subject to criminal sanction—albeit sanctions that differ significantly in kind and
degree.82 Were different legal sanctions for the same kind of sexual act visited upon
homosexuals and heterosexuals so distinguished by law, it would be hard to imagine the
post-National Coalition I and II court sustaining this ‘separate but equal’ treatment.
Similarly, the court holds that sexual association of a prostitute and his or her client—or
between any two persons involving some pecuniary exchange—lies at the periphery of
the right to privacy and not at its core. This distinction between core and periphery is
illusory. Aside from its invidious characterisation of prostitution, the Jordan court
makes no effort to describe those kinds of heterosexual and homosexual sexual
association that belong at the core and those kinds that fall at the periphery.83 The
Jordan court neither weighs in on the various kinds of indiscriminate sexual behaviour
that heterosexuals and homosexuals engage in for the sheer fun of it nor does it take a
view about the many kinds of intimate sexual intercourse where some other kind of
bargain has clearly been reached. But it is hard to imagine the Constitutional Court
describing such ‘private’ relationships as lying at the periphery of the right to privacy.
Likewise, the court’s judgment that the criminalisation of prostitution could not be said
to impair the dignity of the prostitute because ‘the diminution arose from the character
of prostitution itself’—the commodification of one’s body—is difficult to understand in
a liberal, market-based society such as ours.84 So much of what we do involves the
commodification of our bodies. A day-labourer is entitled to some level of constitutional
protection of his dignity despite the fact that he has chosen to sell his body for the wages
79
National Coalition for Gay and Lesbian Equality v Minister of Justice (note 4 above) and National
Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC).
80
See also Satchwell v President of the Republic of South Africa 2002 (6) SA 1 (CC) and Satchwell v President
of the Republic of South Africa 2003 (4) SA 266 (CC) (both judgments find unconstitutional laws withholding
benefits to partner of judge in same-sex relationship).
81
S v Jordan 2002 (6) SA 642 (CC).
82
Ibid [15] and [18].
83
The majority simply asserts, without argument, this distinction. Ibid [29]. The minority did not contest the
assertion. Ibid [117].
84
Ibid [74].
418
Association 18.3
needed to pay for food and shelter. A Constitutional Court judge, while commodifying
her body in the natural course of listening to arguments and writing opinions, is likewise
entitled to some level of constitutional solicitude. It cannot be that the commodification
of one’s body per se bothers the court. All of us gainfully employed do just that. It must
be a particular form of commodification—or the commodification of a particular body
part—that provoked the Jordan court. But when the offending commodification just
happens to be a form of behaviour that attracts the censurer of many South Africans, it is
hard not to conclude that the Constitutional Court has confused commodifying with
moralising.
It is, of course, no reply to argue that the South African constitutional framework not
only permits but requires the legislature to enact laws which foster morality.85 The
question that goes begging is whether the morality fostered can be squared with rules
already articulated by the Constitutional Court. The court must, in articulating its
constitutional standards for sexual association, find compelling grounds for distinguish-
ing those sexual associations that have secured constitutional protection from those
sexual arrangements, such as prostitution, that have not. The court does not so succeed
in Jordan.
85
Ibid [105].
419
Chapter Nineteen
Political Rights*
19.1 The historical context of the political rights . . . . . . . . . . . . . . . . . . . . . . . . . . 421
19.2 The freedom to make political choices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 422
(a) The general freedom to make political choices . . . . . . . . . . . . . . . . . . . 422
(b) Political parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 422
(i) Registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 423
(ii) State funding of political parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . 424
(iii) Media coverage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 425
(iv) Electoral Code of Conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 425
(v) Retention and loss of membership of legislatures . . . . . . . . . . . 425
19.3 The right to free, fair and regular elections . . . . . . . . . . . . . . . . . . . . . . . . . . . 427
19.4 The right to vote . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 430
(a) Equal voting rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 430
(b) Secrecy of the ballot. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 431
(c) Exclusion of classes of citizens from the right to vote. . . . . . . . . . . . 432
(i) Citizens living abroad . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 432
(ii) Mentally disabled persons and mental health detainees . . . . . 434
(iii) Prisoners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 434
(d) Regulation of the right to vote. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 437
19.5 The right to stand for election to public office . . . . . . . . . . . . . . . . . . . . . . . . 440
Political rights
19.(1) Every citizen is free to make political choices, which includes the
right—
(a) to form a political party;
(b) to participate in the activities of, or recruit members for, a political
party; and
(c) to campaign for a political party or cause.
(2) Every citizen has the right to free, fair and regular elections for
any legislative body established in terms of this Constitution.
(3) Every adult citizen has the right—
(a) to vote in elections for any legislative body established in terms of
this Constitution, and to do so in secret; and
(b) to stand for public office and, if elected, to hold office.
* This chapter was revised for the sixth edition by Glenda Fick.
420
Political Rights 19.1
19.1 HISTORICAL CONTEXT OF THE POLITICAL RIGHTS

South Africa’s history of denial of political rights to the majority of its citizens provides
the context in which s 19 must be interpreted.1 That history explains the centrality of the
principle of democracy to the structure and operation of the system of government
envisaged by the Constitution.2
The Constitution recognises three forms of democracy—representative democracy,
participatory democracy and direct democracy.3 Section 19 of the Bill of Rights gives
effect to the constitutional commitment to representative democracy by guaranteeing
enforceable rights allowing citizens to make political choices, guaranteeing free, fair
and regular elections and permitting adult citizens to vote and to stand for public office.
The importance of s 19 and particularly the s 19(1)(b) right of every citizen to make
political choices and to participate in the activities of a political party were canvassed by
the court in Ramakatsa.4
The right to vote in s 19(3) of the Constitution was first recognised as a symbol of
South African citizenship by Sachs J in August v Electoral Commission.5 In addition to
this symbolic importance of the right, the court in Richter v Minister of Home Affairs6
recognised the importance of citizens’ exercise of the right to vote as an essential
working component of democracy. It held that in the absence of voters’ registering to
vote and actively exercising the right to vote, democracy would be gravely endangered.
The Court noted that democracy is strengthened and invigorated by each vote cast and
that when citizens mark their ballots they ‘remind those elected that their position is
based on the will of the people and will remain subject to their will. The moment of
voting reminds us that both electors and those elected bear civic responsibilities arising
out of our democratic Constitution and its values’.7 Therefore, the right to vote has
‘bright, symbolic value’ accompanied by ‘deep, democratic value that lies in a citizenry
1
Ramakatsa v Magashule 2013 (2) BCLR 202 (CC) [64] ‘During the apartheid order, the majority of people in
our country were denied political rights which were enjoyed by a minority. The majority of black people could
not form or join political parties of their choice. Nor could they vote for those who were eligible to be members
of Parliament. Differently put, they were not only disenfranchised but were also excluded from all
decision-making processes undertaken by the government of the day, including those affecting them. . . The
purpose of s 19 is to prevent the wholesale denial of political rights to citizens of the country from ever
happening again’. See also New National Party of South Africa v Government of the Republic of South Africa
1999 (3) SA 191 (CC) [10]; Minister of Home Affairs v National Institute for Crime Prevention and the
Re-integration of Offenders (NICRO) 2005 (3) SA 280 (CC) [47]: ‘In the light of our history where denial of the
right to vote was used to entrench white supremacy and to marginalise the great majority of the people of our
country, it is for us a precious right which must be vigilantly respected and protected’.
2
The principle of democracy is discussed in para 1.3(c) in Chapter 1 above.
3
See para 1.3(c) in Chapter 1 above. The Constitutional Court considered the first two forms of democracy in
Doctors for Life v Speaker of the National Assembly 2006 (6) SA 416 (CC). The majority held that ‘our
democracy includes, as one of its basic and fundamental principles, the principle of participatory democracy. The
democratic government that is contemplated is partly representative and partly participatory, is accountable,
responsive and transparent, and makes provision for public participation in the law-making processes’. The
principle of participatory democracy was the basis of a right of participation in legislative processes and a
concomitant duty on legislatures to facilitate such participation. By contrast, the dissenting judgment of Yacoob J
(particularly at [279]–[283]) emphasised the principle of representative democracy: ‘government by the people is
not achieved by public involvement in law making’.
4
Ramakatsa (note 1 above) [63–74].
5
August v Electoral Commission 1999 (3) SA 1 (CC) [17].
6
Richter v Minister of Home Affairs 2009 (3) SA 615 (CC).
7
Ibid [53].
421
conscious of its civic responsibilities and willing to take the trouble that exercising the
right to vote entails.’8
19.2 THE FREEDOM TO MAKE POLITICAL CHOICES
(a) The general freedom to make political choices

Section 19(1) is a right that guarantees certain freedoms. The purpose of s 19(1) is ‘to
ensure that citizens are free to make political choices which include the right to
participate in the activities of a political party. The right is conferred in unqualified
terms’.9
The freedom to make political choices includes the right to form a political party, the
right to participate in the activities of a political party and the right to campaign for a
political party or cause.10 Section 19(1), generously interpreted, ‘guarantees freedom to
make political choices and once a choice is made, the section safeguards a member’s
participation in the activities of the party concerned’.11 The section ‘protects the
exercise of the right not only against external interference but also against interference
arising from within the party’.12 The right may be limited only in accordance with s 36
of the Constitution.
Therefore, according to the Constitutional Court ‘constitutions and rules of political
parties must be consistent with the Constitution which is our supreme law.’13 If political
party constitutions fail to comply with the Constitution, they will be open to challenges
of constitutional invalidity. The constitutions of a political party ‘facilitate and regulate
participation by members in the activities of a political party’.14 By requiring political
party constitutions and rules to be consistent with the Constitution the judgment
enhances intra-party democracy. However, the court was cautious to point out that s 19
does not provide a basis for determining the internal working arrangements of political
parties or for ‘how members of a political party should exercise the right to participate in
the activities of their party’.15 These are matters best left to the political parties to
address themselves.16
(b) Political parties

There are no significant constitutional provisions or legislation dealing with political
parties.17 This is despite the crucial role they play in a representative democracy. In the
context provided by s 1 of the Constitution, the court recognised the role of political
parties in the following terms: ‘In our system of [multi-party] democracy political
8
Ibid.
9
Ramakatsa (note 1 above) [71].
10
See s 19(1)(a), (b) and (c).
11
12
Ibid.
13
Ibid [72].
14
Ibid [73].
15
Ibid.
16
Ibid.
17
This is in contrast to the position in other jurisdictions with comprehensive legislation regulating political
parties, such as Germany. One issue typically regulated by such legislation is the internal structures of parties to
ensure that internal decision-making is democratic, and particularly, that the party candidates for elections are
democratically elected. Another area of regulation is the disciplinary procedures of political parties.
422
parties occupy the centre stage and play a vital part in the facilitating the exercise of
political rights’.18
A political party may be seen as a voluntary association of individuals united for
common political purposes.19 Political parties are ‘veritable vehicles the Constitution
has chosen for facilitating and entrenching democracy’.20 According to the Constitu-
tional Court, [i]t cannot be gainsaid that success for political parties in elections lies in
the policies they adopt and put forward as a plan for addressing challenges and problems
facing communities. Participation in the activities of a political party is critical to
attaining all of this’.21
(i) Registration
The Electoral Commission Act 51 of 1996 and the Electoral Act require political parties
to register before they can contest an election.22 The biggest obstacle restricting parties’
access to the ballot is the payment of a deposit, the amount of which is determined by
the Electoral Commission. The deposit is forfeited if the party fails to secure at least one
seat in the elections which it is contesting. The deposit requirement may be regarded as
a property qualification and therefore unconstitutional.23
In a case that addressed the payment of a deposit necessary for contesting a municipal
election, the court opted for an interpretive approach grounded in the constitutional
values.24 In this case the court did not demand strict compliance with the provisions of
ss 14 and 17 of the Municipal Electoral Act 27 of 2000 (which dealt with the place of
payment of a deposit by parties and candidates), and avoided a narrow interpretation of
these sections. The Electoral Commission had allowed for payment of the deposit at a
central payment facility instead of at the local office of the Commission as called for by
the Act. The court did not object to this practice. It held that ‘[a]n interpretation . . .
which accepts that the Commission had the power to act in such a manner facilitates the
participation in elections and is far more consistent with our constitutional values than
reading the section strictly to prohibit such a payment system.’25
The court also held that, because the Electoral Commission was holding a surplus of
funds paid to it by the applicant, these surplus funds could be used as the deposit
required for contesting elections in Cape Town even though the applicant had failed,
prior to the expiry of the deadline, to notify the Commission that those funds were to be
used to meet the deposit necessary for contesting the municipal election in Cape Town.
The applicant had not strictly complied with the Act but the court was satisfied that no
party or candidate would be harmed and adopted a generous interpretation. It held that
‘[i]n approaching the interpretation of provisions of electoral legislation, the courts and
18
19
See s 19(1) of the Constitution. See also Ramakatsa (note 1 above) [79].
20
21
Ibid [66].
22
Sections 15–17 of the Electoral Commission Act. The objective of the registration requirement is not clear.
It may simply be to enable the Electoral Commission to maintain a register of parties. Parties wishing to
participate in an election must register in terms of ss 26–31 of the Electoral Act.
23
See the decision of the Supreme Court of Mauritius in UDM v Governor-General [1991] LRC (Const) 328.
However, in Labour Party v Electoral Commission (CCT 14/99, May 1999, unreported) the Constitutional Court
summarily dismissed an application for direct access to challenge the constitutionality of legal provisions
requiring the payment of deposits by parties participating in the general elections.
24
African Christian Democratic Party v Electoral Commission 2006 (3) SA (CC) 305.
25
Ibid [28].
423
the Electoral Commission must understand those provisions in the light of their
legislative purpose within the overall electoral framework. That framework must be
understood in the light of the important constitutional rights and values that are
relevant’.26
Parties may only contest the elections if they have submitted a list of candidates as
prescribed in the Electoral Act.27 The Electoral Commission is bound by the Electoral
Act and the Electoral Commission Act and is not empowered by these Acts to condone
the late submission of candidate lists by parties.28
(ii) State funding of political parties

Section 236 of the Constitution provides that ‘to enhance multi-party democracy,
national legislation must provide for the funding of political parties participating in
national and provincial legislatures on an equitable and proportional basis’. The Public
Funding of Represented Political Parties Act 103 of 1997 gives effect to s 236. The Act
establishes a special fund, managed by the Electoral Commission, from which money is
allocated from time to time to the political parties that are represented in the National
Assembly and the provincial legislatures. The amount parties receive depends on two
considerations: the party’s proportional number of seats and the principle of equity. The
latter principle inter alia dictates that each represented party must receive a fixed
minimum amount of money. The funds must be used for purposes compatible with the
functioning of a political party in a modern democracy.
Parties that are not represented in the legislatures do not qualify for any state funding.
Since there is no constitutional entitlement to state funding, the exclusion of
unrepresented parties does not violate s 19. However, the s 9(1) right to equal benefit of
the law may form the basis for a challenge. Section 9(1) requires that the differentiation
between represented and unrepresented parties must bear a rational connection to a
legitimate government objective. The purpose of the Public Funding Act and of s 236 of
the Constitution is to promote a multi-party democracy. It is not clear why the
achievement of this objective demands a differentiation between represented and
unrepresented parties. An equality challenge is nevertheless unlikely to succeed. The
short answer to such a challenge may be that s 236, via s 36(2), ‘limits’ the right to equal
benefit of the law. It could also be argued that the differentiation is not arbitrary since it
is difficult to verify support for unrepresented parties and that state funding should
therefore not be granted to them.29 In any event, a court sensitive to the implications of
26
Ibid [34].
27
Section 26(b) read with s 27 of the Electoral Act.
28
Liberal Party v Electoral Commission 2004 (8) BCLR 810 (CC). The Liberal Party submitted their
candidate list 21 minutes late. The Constitutional Court held that s 28 of the Electoral Act provides for the
notification of and the supplementation of shortcomings by a party that has submitted a list of candidates. This
section only provides for the rectification of failures to comply with certain aspects of s 27 and does not grant a
general power of condonation for late submission of candidates’ lists.
29
Section 74 of the Electoral Act 202 of 1993 provided that parties qualified for 50 per cent of an initial grant
if they submitted a list of 10 000 signatures (of National Assembly voters) or 3 000 signatures (of provincial
legislature voters). The full initial grant was given to parties that could show, with a poll based on scientific
methods and evaluation, potential support of at least two per cent of voters. The latter provision lead to disputes
about the representativity and scientific nature of a poll: Workers International to Rebuild the Fourth
International v IEC 1994 (3) SA 277 (SPE).
424
the doctrine of separation of powers will be hesitant to give an order directing the
legislature to provide unrepresented parties with state funding.30
(iii) Media coverage

During the 1994 elections, the relationship between the media and the political parties
was regulated by the Independent Media Commission. This body was dissolved after the
election and replaced by the Independent Broadcasting Authority (IBA).31 In 2000, the
functions of the IBA were taken over by the Independent Broadcasting Commission of
South Africa (ICASA).32 ICASA now determines the duration of and other issues
pertaining to party political broadcasts on public broadcasters during the election period.
Acting in terms of the Independent Broadcasting Authority Act,33 the Commission
determines the duration of party political broadcasts transmitted by public broadcasters
during the election period.34 The underlying principle remains that political parties must
be treated equitably (but need not necessarily be given equal time) when the election is
covered.35 Also, no sound broadcaster may be compelled to broadcast a political
advertisement. If it does make time available for such advertising the broadcaster may
not discriminate against a political party.36
(iv) Electoral Code of Conduct

Every party and every candidate participating in an election must subscribe to the Code
of Conduct.37 The Electoral Act confers extensive powers on courts to deal with
political parties and candidates acting in breach of their obligations under the Act,
including the Code.38 The Electoral Commission may also attempt to resolve any
electoral dispute or complaint about an infringement of the Code by way of
conciliation.39 Vicarious liability of political parties is not regulated by statute and
parties are therefore only liable for acts committed by their members when facts are
proved which give rise to such liability at common law.40
(v) Retention and loss of membership of legislatures

Members of the National Assembly and the provincial legislatures are elected under a
30
In Labour Party v Electoral Commission (note 23 above), the Constitutional Court summarily dismissed an
application for direct access to challenge the state funding provisions.
31
The Independent Media Commission was established in terms of Act 148 of 1993. This Act, and therefore
the Commission, ceased to exist when the Independent Electoral Commission was dissolved.
32
ICASA was created by the Independent Communications Authority Act 13 of 2000. The Commission also
took over the functions of the former South African Telecommunications Regulatory Authority (SATRA).
33
See s 59 of the Independent Broadcasting Authority Act 153 of 1993.
34
ICASA must consult with the public broadcasters and the political parties and must treat the latter equitably.
The most recent set of regulations is the Party Elections Broadcasts and Political Advertisements Regulations,
2004 (issued 11 February 2004).
35
Section 61. Parties must be afforded time to respond to criticism.
36
Section 60.
37
Section 99 of the Electoral Act.
38
The penalties range from a warning to fines of up to R200 000 to disqualification of candidates or even to
the cancellation of the registration of a political party (s 96).
39
Section 103A of the Electoral Act.
40
National Party v Jamie NO 1994 (3) SA 483 (EWC) 494; Inkatha Freedom Party v African National
Congress 1994 (3) SA 578 (EN) 588. For a discussion of the liability of political parties at common law, see
Hamman v South West African People’s Organisation 1991 (1) SA 127 (SWA).
425
closed-list system of proportional representation.41 In such a system, members of the

legislature are not elected in an individual capacity to represent the interest of a
particular constituency. Rather, they are elected as members of a political party from a
list of candidates drawn up by the party leadership and/or its members.42 Consonant
with this system, the interim Constitution and the 1996 Constitution contained an
‘anti-defection’ clause, which provided that representatives would lose their member-
ship of a legislature if they ceased to be members of the party that nominated them to the
legislature.
The ‘anti-defection’ clause in relation to members of the National Assembly was
contained in s 47(3)(b) read with item 6 of schedule 6. These provisions ensured the
survival of Schedule 2 of the interim Constitution, as amended by Annexure A to the
1996 Constitution. Similar provisions regulated the loss of membership and the filling of
vacancies in the provincial legislatures. However, the anti-defection provisions could be
removed. Item 23 of the Schedule 2 of the interim Constitution, as amended by
Annexure A to the 1996 Constitution, provided that an Act of Parliament could be
passed, within a ‘reasonable period’ after the 1996 Constitution took effect and using the
procedures in s 76(1) of the Constitution,43 ‘to provide for the manner in which it will be
possible for a member of a legislature who ceases to be a member of the party which
nominated that member, to retain membership of such legislature’.
In June 2002 Parliament passed legislation, including two constitutional amendments,
to provide for what is termed ‘floor-crossing’, ie allowing members of the national,
provincial and municipal legislatures to change parties without losing their membership.
The suite of legislation was challenged as unconstitutional. In the United Democratic
Movement decision, the Constitutional Court held that ‘that there is little if any scope for
challenging the constitutionality of amendments that are passed in accordance with the
prescribed procedures and majorities’.44 In this instance the two Constitutional
Amendment Acts had been enacted in accordance with the provisions of s 74(3) of the
Constitution and were consequently upheld.
As to the challenges to the two ordinary pieces of legislation, the court held that
Parliament was permitted to change the Constitution to provide for floor-crossing by
item 23A(3) of Schedule 6 but this power was subject to the limitation that it had to be
passed ‘within a reasonable period after the new Constitution took effect’. This was not
done, the amendment taking place some five years after the Constitution took effect and
just two years before the expiry of the transitional provisions of which item 23A formed
part.45 The court found that, had Parliament wished to do so, it could have reasonably
41
In the case of local government, the electoral system is a combination of list-based proportional and ward
representation. Ward representatives are individually elected to represent a particular ward (ie, constituency).
42
Political parties contesting an election prepare lists of candidates. Voters vote for parties and seats are
allocated to the various parties proportional to the votes cast. These seats are filled by representatives on the party
lists in the order in which the party’s candidates were named on the list.
43
Section 76 set outs the procedure for passing ordinary Bills (ie, not Money Bills or Bills amending the
Constitution) that affect provinces. In the Second Certification Judgment the Constitutional Court held that
transitional provisions subject to amendment by an Act of Parliament could be recorded in the schedules to the
Constitution, holding that in such circumstances the transitional provisions constituted ordinary legislation and
could be amended by ordinary procedures. Certification of the Amended Text of the Constitution of the Republic
of South Africa, 1996 1997 (2) SA 97 (CC) [91]–[95].
44
United Democratic Movement v President of the Republic of South Africa (No 2) 2003 (1) SA 495 (CC) [12].
45
Item 6(3) of Schedule 6 provides that Annexure A applies only ‘until the second election of the Assembly
under the new Constitution’. The anti-defection provision of item 23A and the power to amend that provision
426
Political Rights 19.2–19.3
modified the anti-defection provisions during 1999, certainly not some three years
later.46 The ‘reasonable period’ requirement indicated that the exception to the ordinary
amendment procedure had to be exercised expeditiously. If this was not done, the
special exemption would fall away and s 23A could then be amended by a constitutional
amendment.47
The Membership Act was therefore declared invalid, but the other objections to the
suite of floor-crossing legislation were dismissed. It remained for Parliament to
introduce the amendments originally contained in the Act in a constitutional
amendment. This was done in the Constitution of the Republic of South Africa
Amendment Act 2 of 2003. The Act repealed the Membership Act of 2002 and
introduced a new Schedule 6A of the Constitution. The new Schedule replicated the
amendments attempted by the Membership Act and provided in essence for
floor-crossing in national and provincial legislatures.
The routine spectacle of the ‘floor-crossing season’ that ensued attracted widespread
public condemnation.48 Public opinion of the floor-crossers was indicated by the
unflattering nickname that they were given—‘crosstitutes’. Stories abounded of
politicians lured by a variety of blandishments to switch parties, usually from a smaller
party to one that was able to offer them the prospect of executive office.49 In the process,
smaller parties were decimated, administrations fell, and there was a general perception
that the ideal of representative politics was corrupted by the practice.50
Yielding to the unpopularity of the practice, the government introduced constitutional
amendments removing the floor-crossing provisions in 2008.51
19.3 THE RIGHT TO FREE, FAIR AND REGULAR ELECTIONS

The right to free and fair elections gives content and meaning to the right to vote. As the
Constitutional Court held, ‘the right to vote is indispensable to, and empty without, the
right to free and fair elections’.52 Whereas s 19(3) guarantees the existence of the right
to vote, s 19(2) obliges the government to make proper arrangements for its effective
within a reasonable period therefore had a maximum lifespan ending in September 2004, the latest date by which
the second election under the 1996 Constitution had to be held. See UDM (note 44 above) [88]–[89].
46
Ibid [103].
47
Ibid [100].
48
See, for example, ‘The Biggest Winner and the Smallest Losers’ Sunday Times 12 September 2007 (ruling
party has gained most seats from the 2007 floor-crossing period); R Taljaard ‘Let’s Put an End to This Farce’ The
Times 18 September 2007 (‘Floor-crossing makes a mockery of the ballot box—a crime, when people fought and
died for the vote’).
49
‘Three parties vanish as floor-crossing ends’ Cape Times 17 September 2007 (since the election in 2004, the
African National Congress gained 18 extra seats in the National Assembly through floor-crossing). The
blandishments were not confined to the promise of office. During one floor-crossing season, a bizarre story
circulated centred on allegations by a Cape Town city councillor that he was offered cash and ‘the services of a
22-year-old Russian woman’ to cross to another party. See ‘Dirty Floor-Crossing Tricks in Cape’ IAfrica.com
News 29 August 2007, <http://iafrica.com/news/sa/493982.htm>.
50
See J Faull ‘Submission to the Joint Constitutional Review Committee: Floor-crossing’ (Institute for
Democracy in South Africa, May 2006), available at <http://www.idasa.org.za/>; Political Information and
Monitoring Service ‘Floor-Crossing and its Discontents’ ePolitics SA no 3 (2007).
51
Constitution Fourteenth Amendment Act of 2008 (abolishing floor-crossing in Parliament and provincial
legislatures) and Constitution Fifteenth Amendment Act of 2008 (abolishing floor-crossing in municipal
councils).
52
427
exercise. Read together, these sections entitle every South African citizen to vote in free
and fair elections.53
One essential ingredient for a free and fair election is the creation of an independent
institution to manage the elections.54 Such an institution is established by the Electoral
Commission Act 51 of 1996. The two main functions of the Electoral Commission are to
manage elections of national, provincial and municipal legislative bodies and to ensure
that those elections are free and fair.55 As far as the management of the elections is
concerned, the role of the Commission is not confined to supervision or monitoring.56
Rather, it is ‘an active, involved and detailed management obligation over a wide
terrain’.57 Moreover, the Commission is solely responsible for organising elections. It
must, of course, do so in terms of the applicable laws and the Constitution,58 but the
Electoral Commission is not part of any government department. Like the other state
institutions supporting constitutional democracy established by Chapter 9 of the
Constitution, the Commission’s independence is entrenched by s 181(2).59 It is
accountable to the National Assembly and not to any government department.60
The existing legislative framework does not properly provide for the independent
functioning of the Commission. First, there appears to be a lack of ‘financial
independence’. The Commission must be afforded an adequate opportunity to defend its
budgetary requirements before Parliament and must then have access to the funds
allocated to it in order to discharge its functions.61 No member of the executive should
have the power to stop transfers of money to an independent institution like the Electoral
Commission without the existence of appropriate safeguards for the independence of the
institution. Secondly, there appear to be shortcomings in so far as the ‘administrative
independence’ of the Commission is concerned. The Commission must be able to retain
operational control over the functions it is required to perform. No state department may
tell the Commission how to perform its functions, such as the registration of voters.
However, if the Commission asks the government for assistance it must be provided.62
53
As the Constitutional Court observed in New National Party (ibid [12]), the right to free, fair and regular
elections is guaranteed to all South African citizens irrespective of their age.
54
Ibid [16].
55
Section 190 of the Constitution and s 5(1) of the Electoral Commission Act. The Commission must also
declare the results of elections within seven days after voting has stopped, but it is no longer required to certify
that the elections were free and fair (s 190 of the Constitution read with s 5(1)(n) of the Electoral Commission
Act). In terms of s 18 of the Independent Electoral Commission Act 150 of 1993, the IEC (the predecessor of the
current Electoral Commission) had to certify or declare itself unable to certify, within ten days of the poll, that the
elections for the National Assembly and the provincial legislatures were substantially free and fair. The decision
of the IEC was final and was not subject to appeal or review.
56
57
Ibid.
58
The fact that the Commission is responsible for running the elections does not entitle it to write the electoral
laws. That is the function of Parliament and not the Commission. If the laws violate the independence of the
Commission, they may of course be invalidated by the courts.
59
See also s 3 of the Electoral Commission Act. In Independent Electoral Commission v Langeberg
Municipality 2001 (3) SA 925 (CC) the Constitutional Court held that the Electoral Commission is not an organ
of state in the national sphere of government but a state institution supporting democracy. This meant that a
dispute between the Commission and the municipality was not an intergovernmental dispute and therefore not
governed by s 41(3), which inhibits direct resort to litigation. See, further, para 5.4(c)(ii)(bb) in Chapter 5 below.
60
Section 181 of the Constitution. The same section requires the Electoral Commission to perform its
functions impartially.
61
62
Ibid [99].
428
If the management of the election by an independent Commission is an essential

ingredient of a free and fair election, it follows that legislation and government conduct
that undermines the independence of the Commission violates s 19(2). However, not
every attempt of the government to interfere with the functioning of the Commission or
failure of the government to assist the Commission will undermine its independence. In
many cases, the Commission will be able to resist attempts to interfere with its
independence. For example, in the New National Party case, the Constitutional Court
held that the government failed to appreciate the true import of ss 181 and 190 of the
Constitution which, inter alia, provide for the independence of the Commission and that
all organs of state must assist and protect the Commission to ensure its independence
and effectiveness.63 However, the court declined to grant relief on the basis that the
applicant (the NNP) lacked standing to rely on ss 181 and 190 of the Constitution. The
court’s ruling was based on the finding that s 19(2) was not violated since the
Commission had managed to assert its independence without resort to the courts.64
While it is a necessary ingredient, the existence of an independent Electoral
Commission is in itself not sufficient to secure free and fair elections. According to the
Constitutional Court, the requirement of ‘fairness’ has at least two further implications.
The first is that each citizen must not be allowed to vote more than once in the elections
and the second is that any person not entitled to vote must not be permitted to do so.65
Regulation of the exercise of the right to vote is necessary to achieve these objectives
and thereby to ensure a free and fair election.66 The Constitution recognises the
necessity of such regulation by requiring there to be a properly functioning voters’
roll.67 Registration on the voters’ roll must be viewed in this context; it is a
constitutional requirement enabling the right to vote and not a limitation of the right to
vote.68 The same applies to the provisions of the Electoral Act that govern proof of
identity. Some means of easy and reliable identification is necessary to facilitate the
process of registration and voting. The legislature is obliged to make provision for such
a means of identification in order to ensure the fairness of the elections. Legislative
regulation of the exercise of the right to vote is not unconstitutional as long as the
regulation is rationally related to a legitimate government purpose and it does not impair
the right to vote.69
While individuals and political parties may challenge legislation and state conduct
that undermines their right to free and fair elections, it may sometimes be difficult for the
courts to find an appropriate remedy for the violation of s 19(2). The most intrusive
remedy, that of setting aside the results of an election, seems to be available only when
the effect of the unconstitutional law or conduct outweighs the effect of the mechanisms
meant to ensure that the election is free and fair.70 Individuals and political parties
wishing to invoke the right to free and fair elections should therefore act timeously,
63
Ibid [100].
64
It goes without saying that if the independence of the Commission (and therefore s 19(2)) is undermined,
any individual has standing to approach a court for appropriate relief, including a declaration of rights, even if the
Commission itself does not seek or oppose such an application.
65
66
Ibid [12].
67
See ss 1(d), 46(1), 105(1), 157(5).
68
69
Ibid [24].
70
See, in this regard, DTA of Namibia v Prime Minister of the Republic of Namibia 1996 (3) BCLR 310
(NmH).
429
ensuring that violations can be remedied by the granting of interdict or other forms of
appropriate relief.
As for the regularity of elections, the Constitution determines the duration of the
National Assembly, provincial legislatures and municipal councils in ss 49, 108 and 159
respectively.71
19.4 THE RIGHT TO VOTE

The right of adult citizens to vote in elections for the legislative bodies established by
the Constitution is protected by s 19(3). There is no duty to vote imposed by s 19 or
elsewhere in the Constitution, but if legislation were to make voting compulsory72 this
would not necessarily be unconstitutional.73
Addressing the right to vote under South Africa’s party-based electoral system, the
Constitutional Court stated that ‘[t]he Constitution itself obliges every [eligible] citizen
to exercise the franchise through a political party. Therefore political parties are
indispensable conduits for the enjoyment of the rights given by s 19(3)(a) to vote in
elections’.74
Section 1(d) of the Constitution refers to a national common voters’ roll and other
provisions of the Constitution require elections for national and provincial legislatures
and for municipalities to be based on the national common voters’ roll.75 The roll is
therefore a constitutional requirement integral to the right to vote.76 In terms of the
Electoral Act the establishment and maintenance of the roll is the responsibility of the
Chief Electoral Officer and the Electoral Commission.77
The national voters’ roll is, in essence, a register of all voters in the country who are
qualified to vote and who have registered to do so. The roll consists of the names,
identity numbers and addresses of registered voters. It is organised into segments
corresponding to the provinces, municipalities and voting districts.
(a) Equal voting rights

‘The vote of each and every citizen is a badge of dignity and of personhood’, the
Constitutional Court has held. ‘Quite literally, it says that everybody counts’.78 For
everybody to count, their votes must be regarded as equal.
The constitutional entrenchment of proportional representation79 makes it unlikely
that South African courts will be confronted with the apportionment80 and
71
The Assembly and the provincial legislatures may be dissolved before their expiry date in the circumstances
envisaged in ss 50 and 90 of the Constitution.
72
In several countries it is compulsory to vote, including Australia, Belgium, Greece and many countries in
Latin America. International IDEA Electoral System Design Handbook (2005) 125.
73
But see New National Party of South Africa v Government of the Republic of South Africa 1999 (4) BCLR
457 (C), 476G (‘[eligible voters] have the inalienable right to abstain from voting, should they choose to do so’).
74
75
Sections 46(1), 105(1) and 157(5).
76
77
The Chief Electoral Officer is the head of the administration of the Electoral Commission.
78
August v Electoral Commission 1999 (3) SA 1 (CC) [16].
79
See s 46(1)(d) (electoral system must result ‘in general, in proportional representation’). Cf s 105(1)(d)
(provincial legislatures) and s 157(2) (municipalities).
80
The term ‘apportionment’ is used to describe deviations from the ‘one person one vote’ principle by giving
greater weight, for example, to votes from rural areas compared to those from urban areas.
430
gerrymandering disputes81 that have led to litigation in Canada and the United States.
The major advantage of a system of proportional representation is that, in theory at least,
it guarantees almost exact equality of the vote.82
However, as the Constitutional Court has stated, most electoral laws have the
potential to directly or indirectly affect people in different ways, depending on, for
example, where they live, their standard of literacy or political beliefs.83 In South Africa,
the prohibition against unfair discrimination (s 9(3)) does not require applicants to show
that such laws intentionally discriminate against them, but merely that the law affects a
listed or analogous group negatively and results in unfair discrimination against them.84
A violation of s 9(3) may nevertheless be difficult to show since the Constitutional Court
appears to require proof that the law in itself actually resulted in fewer people of the
affected group exercising the right to vote and not merely that the law made it more
difficult for them to exercise the right to vote.85 In other words, an applicant is required
to show a causal connection between the law and a reduced number of people from a
group voting than would have been the case without the law.
This test is too strict and cannot be accepted. Once a law affects a listed or analogous
group negatively, it discriminates. The question is then whether the discrimination is
unfair. In considering the issue of unfairness, the number of the affected group who
failed to vote may be a factor to take into account, but it cannot be decisive precisely
because people fail to vote for any number of reasons, not all of which are related to the
law. The question is rather whether the impact of the discriminatory law on the affected
group is unreasonable in the light of the purpose of the legislation. For example, a
property qualification on the right to vote will unfairly discriminate against poor people.
It is not necessary to show that such a law actually results in fewer poor people voting or
that, in the absence of the qualification, more poor people would have voted.
(b) Secrecy of the ballot

Section 19 provides that every citizen has the right to vote in secret. Several provisions
in the Electoral Act 73 of 1998 deal with the secrecy of the vote.86 Section 90(1)
81
‘Gerrymandering’ describes the delimiting (ie, drawing the boundaries) of constituencies in such a manner
as to dilute the support for particular political parties, cultural or racial groups. See Executive Council, Western
Cape v Minister of Provincial Affairs 2000 (1) SA 661 (CC) [167].
82
The German Constitutional Court, in dealing with equality of the vote within the list system of proportional
representation, has said that every ballot must have the same potential value and that every voter must have an
equal opportunity to influence the outcome of the election. See 1 BVerfGE 208, 242 (7.5% Sperrklausel) and 34
BVerfGE 81, 98 (Wahlgleichkeit).
83
Democratic Party v Minister of Home Affairs 1999 (3) SA 254 (CC) [12].
84
City Council of Pretoria v Walker 1998 (2) SA 363 (CC) [43]. See, further, the discussion of indirect
discrimination in Chapter 9 above.
85
In Democratic Party (note 83 above) [12], the court held that it was not enough to show that the statutory
requirement that voters possess a bar-coded identity document in order to register and vote disproportionately
affected potential white voters, rural voters and young voters. It was necessary to show that the requirement
resulted in smaller numbers of the affected groups registering than those outside the categories.
86
Legal provisions dealing with the secrecy of the vote include: ss 38, 39, 70 and 90 of the Electoral Act.
Section 90(2) provides that no person may, except as permitted under the Act, disclose any information about
voting or the counting of votes, or open any ballot box or container sealed in terms of the Act, or break its seal.
See also ss 5 and 15 of the Referendums Act 108 of 1983. The rendering of assistance by electoral officials at the
request of a voter is also subject to the secrecy of the vote. Such assistance may be rendered to voters who are
unable to read, blind or visually impaired. See s 39 of the Electoral Act.
431
provides that no person may interfere with a voter’s right to secrecy. In terms of s 98 of
the Act, interference with the right to vote in secret is an offence.87
(c) Exclusion of classes of citizens from the right to vote

(i) Citizens living abroad
In Richter88 the court had to decide whether South African citizens living abroad and
who fell within the purview of s 33 (1)(e) of the Electoral Act were to be allowed to vote
by special vote. Section 33(1)(e) provided that a registered voter who is unable to vote in
his or her voting district on polling day must be allowed a special vote if the inability to
vote is due to temporary absence from the Republic for purposes of a holiday, a business
trip, attendance of a tertiary institution or an educational visit or participation in an
international sports event.
The applicant in Richter was a South Africa citizen working as a teacher in the United
Kingdom who wanted to vote in the 2009 election, but did not fall into the groups of
voter expressly mentioned in s 33(1)(e) and, therefore, did not qualify for a special vote.
The Court found that the section did not accommodate South African citizens who,
while pursuing activities as global citizens in a global economy, wanted to take the
trouble to participate in elections while abroad. Their desire to participate in the
elections [was] ‘an expression of their continued commitment to our country and their
civic-mindedness from which our democracy will benefit’.89
These provisions therefore effectively disenfranchised citizens who were absent from
the Republic, but not temporarily or not for the reasons listed, and were the subject of a
Constitutional Court challenge in Richter v Minister of Home Affairs.90 To vote in the
election, such citizens would have to travel from wherever they were to South Africa;
this was an unreasonable burden to place on them,91 particularly given the fact that
government officials and their households were not required to travel home to vote but
had voting facilities provided for them at embassies and consulates abroad.92 The court
confirmed the position it took in New National Party that should a legislative provision
introduce a restriction that ‘prevent[s] a voter from voting despite the voter’s taking
reasonable steps to do so, the provision will constitute an infringement of s 19’.93
The restriction of the categories of voters entitled to a special vote was therefore an
infringement of the right to vote and was not justifiable in terms of the limitation clause,
since there was no legitimate purpose evident for the restriction.94 The words
‘temporary’ and ‘for purposes of a holiday, a business trip, attendance of a tertiary
institution or an educational visit or participation in an international sports event’ in
87
Other administrative measures taken to ensure secrecy include the design of the books of ballot papers: the
ballot papers are not numbered but have a detachable numbered counterfoil to facilitate controls over the number
of ballots issued and to prevent fraud. See Electoral Commission Elections Report: National and Provincial
Elections 22 April 2009 74.
88
Richter v Minister of Home Affairs (note 6 above).
89
Ibid [69].
90
See Richter (note 6 above). For example, the applicant, Mr Richter, was working in the United Kingdom as
a teacher on a two-year contract and was therefore not absent for any of the reasons listed in s 33(1)(e). Ibid [63].
91
See New National Party (note 1 above) [23] (citizens can be expected to make a reasonable effort to exercise
their right to vote).
92
Richter (note 6 above) [68].
93
Ibid [58].
94
Ibid [78].
432
s 33(1)(e) of the Electoral Act were declared invalid, with the result that anyone who
would be absent from the Republic on election day could apply for a special vote.95
Registered voters in this position were given fifteen days to apply for special votes to
vote in the 2009 elections; the Electoral Commission dealt with some 18 855
applications for special votes but only 9 857 votes were actually cast at 123 foreign
missions.96
Two additional challenges to the special vote provisions were considered by the
Constitutional Court in Richter. The first was the Electoral Act’s requirement that a
person who is eligible for a special vote must apply for it within fifteen days of the
proclamation of the election date.97 This requirement did not impose an unreasonable
burden on prospective voters, the court held, and it served the important administrative
purpose of giving the Electoral Commission adequate time to make arrangements for the
vote.98 The fact that the Act did not permit the Chief Electoral Officer to condone late
applications was also justifiable on administrative grounds. The administrative burden
that the consideration of applications for condonation would place on the Chief
Electoral Officer ‘might well be unbearable’ and would be likely to result in
administrative reviews of decision not to condone, ‘which would inevitably hamper the
efficient performance of . . . [the Chief Electoral Officer’s] duties’.99 There was no need
to accommodate voters who, for whatever reason, failed to apply for a special vote in
time, just as there was no need to accommodate voters who, because of an accident or
misfortune, turned up at a voting station after it had closed.100
The other challenge was to provisions of the Electoral Regulations which have the
effect that a person who is granted a special vote in terms of s 33(1)(e) of the Act and
who chooses to vote in an embassy or consulate abroad may only vote in national
elections and not in provincial elections.101 The same restriction was not imposed on
special voters who voted in their own voting district in South Africa before their
departure,102 nor was it imposed on state officials on overseas duty who were deemed by
the Electoral Act as being registered to vote in the district where their government
department was headquartered.103 The reasons for the restriction were not particularly
clear but an important consideration, according to the Electoral Commission, was that
all votes, including special votes, have to be checked against the relevant provincial
section of the voters’ roll before they are counted. In the case of special votes, this
would entail transporting each special vote to the voting station of each voter to be
verified and counted there.104 Pointing out that it might be possible to deal with all
special votes in the same way by counting them at a single venue that was supplied with
the entire voters’ roll, the Constitutional Court nevertheless declined to decide the issue.
It was not appropriate to award urgent relief on this issue without a full ventilation of the
issue, particularly given that it might result in arbitrary differentiation if special voters
95
Ibid [109].
96
Electoral Commission Elections Report: National and Provincial Elections 22 April 2009 20–21.
97
Section 33(1)(e) of the Electoral Act.
98
Richter (note 6 above) [81]–[82].
99
Ibid [83].
100
Ibid.
101
Regulation 12(4).
102
103
Section 7(2) of the Electoral Act. Since most departments are headquartered in Pretoria, this simplifies the
process of dealing with the votes of such officials: see Richter (note 6 above) [87].
104
433
were permitted to vote in provincial elections but not the approximately two million
voters who cast their vote at voting stations other than the one they were registered in
and who were similarly deprived of their provincial vote.105
To register as a voter and to be placed on the voters’ roll, a citizen who is in
possession of a bar-coded identity document may apply to any of the offices of the
Electoral Commission throughout the country, or may register at occasional voter
registration drives held by the Commission, usually in the months prior to elections. The
Commission, acting in terms of the Electoral Act and the Voter Registration Regulations
of 1998, does not provide registration facilities outside South Africa. This obstacle to
the registration of prospective voters living outside the country was challenged as an
infringement of the right to vote by some of the applicants for direct access in AParty v
Minister of Home Affairs.106 The Constitutional Court declined these particular
applications for direct access, commenting that the applicants appeared to have had
sufficient time and opportunity to register before they left South Africa or during visits
to the country. They had not provided any explanation for their failure to register and
there was therefore no basis for the court to come to their assistance in relation to this
issue.107
(ii) Mentally disabled persons and mental health detainees

In accordance with s 19(3) of the Constitution, the Electoral Act defines a ‘voter’ as a
South African citizen who is 18 years or older.108 Section 8 of the Act then excludes
certain categories of adult citizens from voting, by providing that they cannot be
registered on the voters’ roll. The excluded categories are persons subject to a court
order declaring them to be of unsound mind or mentally disordered and persons detained
under the Mental Health Act 18 of 1973; persons in either category may not register as
voters.109 The exclusion of these citizens is certainly a limitation of their right to vote
and is perhaps also unfair discrimination on grounds of disability. The provisions may
well be overbroad, since some of the mentally ill may be perfectly capable of voting.
Provision should be made for affected persons to approach a tribunal or a court to prove
their fitness to vote.
(iii) Prisoners
The right of prisoners to vote has been a contentious issue since the transition. During
the negotiation of the interim Constitution the issue remained unresolved until the day
before the first democratic elections took place in April 1994. Initially, a wide category
of prisoners was disqualified from the vote.110 Following unrest and violence in the
prisons, on 25 April 1994, State President FW de Klerk exercised special powers to
amend s 16(d) of the Electoral Act 203 of 1993 by Proclamation 85 of 1994 to limit the
105
Ibid [90–91]
106
AParty v Minister of Home Affairs 2009 (3) SA 649 (CC).
107
Ibid [67]–[69].
108
Section 1.
109
The exclusion in s 8(2)(a), of persons who have applied for registration fraudulently or otherwise than in
the prescribed manner, is an individual and not a category exclusion.
110
The original list in s 16 of the 1993 Electoral Act included prisoners serving sentences for murder, culpable
homicide, indecent assault, childstealing, kidnapping, assault with intent to do grievous bodily harm, robbery,
malicious injury to property, breaking and entering, fraud, corruption and bribery or any attempt to commit any
of these offences.
434
category of prisoners not entitled to vote to those convicted for murder, robbery with
aggravating circumstances and rape and attempts to commit the same offences.111
The 1998 Electoral Act replaced the 1993 Act. It did not include prisoners on the list
of persons disqualified from voting. However, as we have seen, the Act provided that all
South African citizens in possession of the required identity document should be
allowed to register on the common voters’ roll administered by the Electoral
Commission and, once registered, to vote. The Electoral Commission decided, primarily
for budgetary and administrative reasons that it would take no steps to allow prisoners to
register for and vote in the 1999 general election. Whatever its reasons for limiting the
right to vote, the Commission did so without resort to law (despite having
regulation-making powers).
In August v Electoral Commission,112 the Commission’s disenfranchisement-by-
omission of prisoners was challenged. The Constitutional Court held that the right to
vote ‘by its very nature imposes positive obligations upon the legislature and the
executive.’113 The Electoral Commission Act also imposes an affirmative obligation on
the Commission to take reasonable steps to ensure that eligible voters are registered.114
By omitting to take any steps, the Commission failed to comply with ‘its obligation to
take reasonable steps to create the opportunity to enable eligible prisoners to register and
vote’.115 In effect, the omission would have disenfranchised all prisoners without
constitutional or statutory authority. The court accordingly ordered the Electoral
Commission to make all reasonable arrangements’ to ensure that people who were
imprisoned during the periods of registration could register, and that all registered
prisoners could vote on election day.
The Constitutional Court stated that its judgment in August should not be read as
deciding that Parliament was unable to disenfranchise certain categories of prisoners,
but simply that any such attempt at disenfranchisement was a limitation of the right to
vote and therefore had to be by law of general application to stand any chance of
justification.116 Shortly before the 2004 elections, Parliament amended the Electoral Act
by the Electoral Laws Amendment Act 34 of 2003. The amendment effectively
disenfranchised prisoners serving sentences of imprisonment without the option of a
fine, as it prevented them from registering as voters and voting while in prison.117
111
The implementation of the last-minute deal was by no means uniform. It is therefore not possible to say
how many and which classes of prisoners voted in the first democratic election. In Masuku and Mbonani v State
President 1994 (4) SA 374 (T) two prisoners contended that s 16 of the 1993 Electoral Act was inconsistent with
the political rights and right to equality in the interim Constitution. The Transvaal Provincial Division of the
Supreme Court held that it had no jurisdiction to consider the validity of the Electoral Act. Further, since convicts
had to vote by special vote on 26 April 1994 and the Constitution only came into operation on 27 April, the
situation was that, even before the coming into effect of the interim Constitution, the time for convicted persons
to vote would have expired. To give an order in favour of the applicants would therefore be a brutum fulmen.
112
August (see note 5 above) [3].
113
Ibid [16].
114
Section 5(1)(e) of the Act, as interpreted by the court in August (ibid [16]).
115
Ibid [22].
116
Ibid [31].
117
Section 8(2)(f) was introduced into the Act, preventing registration of persons ‘serving a sentence of
imprisonment without the option of a fine’. The disqualification also hit former prisoners who had not registered
before being imprisoned and who had been released from prison after the voters’ roll had closed, but before the
day of the elections. (See NICRO (note 120 below) [31].) Section 24B(2) dealt with prisoners already on the
voters’ roll and provided that ‘[a] person who is in prison on election day may only vote if he or she is not serving
a sentence of imprisonment without the option of a fine’.
435
Unsentenced prisoners and those who were incarcerated because they could not pay
imposed fines, could register and vote.
The constitutionality of the amendment was challenged in Minister of Home Affairs
v National Institute for Crime Prevention and the Re-integration of Offenders
(NICRO).118 Following the holding in August,119 the provisions were treated as a
limitation of the right to vote, and therefore could survive only if a justifiable limitation
in terms of s 36.120 The government’s rationale for introducing the amendment to the
Electoral Act was to preserve the integrity of the voting process. Voting other than at a
polling station entailed the use of mobile voting facilities or special votes, both
procedures involving risks to the integrity of the vote and requiring special measures to
counter these risks. The provision of special arrangements of this nature puts strain on
the logistical and financial resources available to the Commission. For these reasons the
decision had been made to limit the categories of people for whom special voting
arrangements had to be made. The favoured categories were people unable to travel to
polling stations because of physical infirmities, disabilities or pregnancy, persons and
members of their household absent from the Republic on government service, and
people who would be absent from their voting districts on election day because of duties
connected with the elections.
As for prisoners, the decision was to distinguish three classes of prisoners.
Awaiting-trial prisoners were not to be excluded from voting. Prisoners sentenced to a
fine with the alternative of imprisonment who were in custody because they had not paid
the fine would be allowed to vote. It was thought, however, that it was reasonable to
deny the vote to prisoners serving sentences of imprisonment without the option of a
fine. They had been deprived of liberty by a court after a fair trial and had to accept that
a consequence of this is that special provision would not be made for them to register
and vote.121 Further, there were policy justifications for the singling-out of convicts in
this way: this was that it was important for the government to denounce crime and to
communicate to the public that the rights of citizens, such as the right to vote, are related
to fulfilling their duties and obligations as citizens.122
The Constitutional Court disposed of the logistics and costs leg of this argument on
the basis that its establishment entailed an evidential burden on the state, a burden it
made little effort to discharge: ‘the factual basis for the justification based on cost and
the lack of resources has not been established . . . Apart from asserting that it would be
costly to do so, no information as to the logistical problems or estimates of the costs
involved were provided . . .’.123
As for the policy justification, in the absence of a comprehensive argument from the
state, the Constitutional Court found a useful source of comparative material in the
Canadian Supreme Court decision in Sauvé v Canada (Chief Electoral Offıcer).124 In
that case a similar legislative disenfranchisement of prisoners had been justified by the
Canadian government on the basis that the disqualification served, inter alia, the
118
Ibid.
119
See August (note 5 above).
120
Minister of Home Affairs v National Institute for Crime Prevention and the Re-integration of Offenders
(NICRO) 2005 (3) SA 280 (CC) [32].
121
Ibid [39–][44].
122
Ibid [57].
123
Ibid [49]. On the nature of the evidential burden in limitations arguments, see para 7.1(b) in Chapter 7
above.
124
Sauvé v Canada (Attorney General) [1993] 2 SCR 438.
436
objective of enhancing civic responsibility and respect for the rule of law. A majority of
the Supreme Court held the legislation to be an invalid infringement of the right to vote,
emphasising that the state had failed to discharge its considerable burden of justifying
the limitation of a right that was so central to democracy. This was despite a great deal
of justificatory effort by the Canadian government both prior to introducing the
legislation and during the litigation process.125 But in NICRO, ‘we have only statements
such as that made by counsel that the government does not want to be seen to be soft on
crime, and that . . . it would be unfair to others who cannot vote to allow prisoners to
vote’.126 Such statements could not hope to justify a blanket ban of the type imposed,
which hit prisoners imprisoned for grave or relatively minor offences, and even
prisoners whose convictions and sentences were under appeal.127 Sections 8(2)(f), s 24B
and the phrase ‘and not serving a sentence of imprisonment without the option of a fine’
in s 24B(1) were declared invalid.128 The Electoral Commission and the Minister of
Correctional Services were ordered to ensure that all prisoners were afforded an
opportunity to register as voters for, and to vote in, the elections of April 2004.
Since the NICRO decision, Parliament has not made another attempt to
disenfranchise prisoners and prisoners were duly registered and voted in the 2009
national and provincial elections.129
(d) Regulation of the right to vote

All adult South African citizens in possession of an identity document or issued after
July 1986 or a temporary identity document may apply for registration as a voter on the
national common voters’ roll.130
In New National Party, the Constitutional Court laid down a test to be used to
determine whether certain forms of regulation of the right to vote are constitutional. The
test does not apply to all forms of regulation of the right to vote, but only to those that
are necessary components of the electoral system contemplated by the Constitution.131
125
See the description of the pre-legislative investigation of the issue in NICRO (note 120 above) [58].
126
Ibid [66].
127
Ibid [67].
128
Madala J dissented, holding that there was sufficient justification for the infringement of the right. Finding
support in the minority decision of Gonthier J in Sauvé (note 124 above), Madala J considered the temporary
removal of the vote and its restoration upon the release of a prisoner as ‘salutary to the development and
inculcation of a caring and responsible society’ [116]. In a separate dissenting judgment, Ngcobo J considered the
limitation of prisoners’ right to vote for the duration of their sentence justifiable as part of the necessary effort to
fight crime and ‘a reminder that the duties and responsibilities of a citizen also include an obligation to respect
the rights of others and comply with the law’ [147]. The legislation was unconstitutional only because it made no
distinction between prisoners awaiting the outcome of an appeal (and who might therefore yet be acquitted) and
those whose appeals had been finalised.
129
Electoral Commission Elections Report: National and Provincial Elections 22 April 2009 20–21.
130
Section 6(1) of the Electoral Act, read with the definition of ‘identity document’ in s 1. These provisions
were challenged as infringements of the right to vote in New National Party. The basis of the challenge was that
the requirement that voters must possess a certain type of identity document (essentially, one containing a
bar-code) deprived numerous otherwise eligible voters of the franchise. According to statistics accepted by the
court, about 80 per cent of citizens were in possession of the required document, whereas ten per cent of eligible
voters had no identity documents at all and a further ten per cent had an otherwise valid identity document but not
of the required bar-coded type. The identification requirement, the Constitutional Court held, was a rational
measure within the powers of the legislature to regulate the compilation of the voters’ roll and the conduct of the
election. The bar-coded identity document was the most secure form of official identification available. Requiring
this particular form of document did not infringe the right to vote since people who wanted to vote were given
enough time (six months) to apply for the document.
131
437
In other words, the test only applies to regulation of the right to vote necessary to ensure
that the elections are free and fair, or regulation necessary to comply with other
constitutional imperatives.
New National Party dealt with the provisions of the 1998 Electoral Act132 which
basically required proof of identity and citizenship for registration and voting with a
certain type of identity document (‘green bar-coded’). According to statistics accepted
by the court, about 80 per cent of citizens were in possession of the required identity
document, whereas ten per cent of eligible voters had no identity document at all and a
further ten per cent had an otherwise valid identity document but not of the required
bar-coded type.133 The court held that it was necessary to provide for some form of
identification to facilitate the electoral process.134 In order to determine whether the
legislature could insist on use of the bar-coded identity document, the court formulated a
two-step test. The first part of the test involves determining whether there is a rational
relationship between the scheme the legislature adopts and the achievement of a
legitimate governmental purpose. In other words, Parliament may not act capriciously or
arbitrarily.135 This first constraint is not derived from the Bill of Rights, but from the
rule of law, which the court described as a core value of the Constitution.136 Applying
this part of the test, the court held that it was rational to insist on the bar-coded identity
document since a single type of identity document would lead to less confusion amongst
electoral officers and the presence of the bar-code made this identity document easier
and quicker to use. The bar-coded ID was also more secure, since, unlike the other valid
forms of identity document, the bar-coded identity document required the fingerprints of
the holder to be registered in the population register. Finally, use of the bar-coded
identity document would not offend anyone since it no longer contained any reference to
the race of its holder.
The second part of the test is that the electoral scheme must not infringe any of the
fundamental rights enshrined in the Bill of Rights. As far as the right to vote is
concerned, Parliament must ensure that people who would otherwise be eligible to vote
are able to do so if they want to vote and if they take reasonable steps in pursuit of the
right to vote. The right to vote will therefore be violated when those who wish to vote
and who take reasonable steps in pursuit of the right, are unable to do so.
Applying the test, the court held that the requirement of a bar-coded identity
document did not impair the right to vote since people who wanted to vote had enough
time (six months) to apply for the document.137 Also, the responsibility of ensuring that
people know the documentary requirements for voting rests not only on the government,
but also on political parties and on the individual voter. At the time of enacting the law,
the scheme was therefore ‘reasonably capable of achieving its goal’,138 especially since
the Department of Home Affairs assured Parliament that they could issue the documents
in time and there was no reason to second-guess the Department.
The approach of the court cannot be accepted. It rests on two incorrect assumptions.
The first is that the principle of separation of powers means that when interpreting rights
132
Sections 1(xiii) and 6(2) read with s 38(2) of the Electoral Act.
133
134
Ibid [17].
135
Ibid [19].
136
Ibid [24].
137
Ibid [40].
138
Ibid [23].
438
(as opposed to considering the limitation of rights) a court may not ask whether a
legislature has acted reasonably, but merely whether it acted rationally. This assumption
is subjected to trenchant criticism by O’Regan J in her dissenting opinion. According to
O’Regan J, the rational connection test is far too deferential a standard for determining
whether legislation enacted by Parliament to enable citizens to exercise their right to
vote gives rise to an infringement of the right to vote.139 The primary obligation imposed
by s 19(2) and (3) of the Constitution is not a negative one but is positive, requiring
government to take positive steps to ensure that the right is fulfilled.140 Matters such as
the location of the polling booths, the hours of voting and the requirements of proof of
identity must of course be regulated by law. But, in creating the framework, Parliament
should seek to enhance democracy, not limit it.141 For O’Regan J, it is therefore
appropriate to require such laws to be reasonable and not merely rational.142
Although O’Regan J’s approach—to require Parliament to act reasonably—is the
better one, it does not go far enough. It remains an attempt to avoid limitations analysis
through a form of contextual interpretation. In our view, any regulation that makes it
more difficult to vote is in need of justification under the limitation clause. A registration
requirement does indeed make it more difficult to vote and therefore has to be justified
as a limitation of the right to vote. The government is under an obligation to consider
alternatives. For example, there is no apparent reason why the population register cannot
be used to compile the ‘national common voters’ roll’ required by s 1(d) of the
Constitution.
The Constitution does not extend the right to vote to the reasonable citizen (as the
majority held in New National Party) or even to a person who complies with reasonable
regulations (as O’Regan J argued). The Constitution affords the right to vote to all
citizens. Whenever laws or conduct make it more difficult to vote, they are therefore in
need of justification. The purpose of the regulation, whether it is necessary to ensure free
and fair elections or whether it serves a purpose related to the fulfilment of another
constitutional provision, must be taken into account at the limitation stage, and not when
defining the right. In any event, whatever the test may be, it is unfortunate that the
Constitutional Court did not require the government to properly justify legislation as
controversial as that considered in New National Party.
The second incorrect assumption the court made in New National Party is that the
validity of a statute is ordinarily determined with reference to the circumstances that
existed at the time of its enactment.143 We have criticised this approach in Chapter 6
above. O’Regan J’s approach in her dissenting judgment is also preferable in this regard.
According to O’Regan J, reasonable perceptions of the capacity of the Department of
Home Affairs at the time the legislation was enacted is one of the relevant
considerations to determine whether Parliament acted reasonably.144
The court’s decision to analyse the issues from the time when the law was passed
resulted in artificial distinctions between the constitutional validity of the statutory
provisions and the constitutional validity of their implementation. The latter is not
139
Ibid [122].
140
Ibid [118].
141
Ibid [122].
142
In our view, O’Regan J’s approach is more in line with the court’s approach in August (note 5 above).
143
144
Ibid [141].
439
strictly speaking a ‘constitutional issue’ but one of ordinary statutory interpretation.

Also, when the ‘effect’ of a law is tested against the Constitution, this distinction seldom
makes sense. The way in which a law is implemented may provide good guidance on
what its unconstitutional effects are. In our view, requiring proof of identity with the
bar-coded identity document undoubtedly had the effect of making it more difficult for
people to exercise their right to vote. This was a classic case in which the court should
have balanced the effects of the infringement against the purpose of the legislation under
the limitation clause.
19.5 THE RIGHT TO STAND FOR ELECTION TO PUBLIC OFFICE

Sections 47 and 106 of the Constitution provide that every citizen who is qualified to
vote for the National Assembly or provincial legislature is also eligible to be a member
of the Assembly or a provincial legislature. Unrehabilitated insolvents, persons declared
to be of unsound mind and anyone convicted of an offence and sentenced to more than
twelve months’ imprisonment, without the option of a fine, are disqualified. Anyone
who is appointed by, or is in the service of the state and receives remuneration for that
appointment or service may not be a member of the Assembly or the provincial
legislature while so employed,145 but may of course be a candidate for election to the
Assembly or a provincial legislature. This last provision is not a restriction of the right to
stand for election to public office. It merely prevents a person from being a member of a
legislature while working for the state. Apart from giving effect to the doctrine of
separation of powers, it prevents a person from holding two jobs paid for by the
government. However, civil servants’ rights to stand for election to public office are
limited in many countries. In South Africa, s 36 of the Public Service Act 103 of 1994
forbids employees of the state to ‘draw up or publish any writing or deliver a public
speech to promote or prejudice the interests of any political party’. Section 20(g) of the
same Act provides that members of the public service who make use of their position in
the public service to promote or to prejudice the interest of any political party shall be
guilty of misconduct. These provisions make it difficult for civil servants to run for
public office. The justification most often advanced for this limitation is that the state has
a legitimate interest in preserving a neutral and professional civil service. It is difficult to
see why such a limitation should be upheld in an open and democratic society. The
courts, the Public Service Commission and the Office of the Public Protector should
provide the citizen with sufficient protection against unreasonable and politically biased
decision making. It is, in any event, doubtful whether the limitation of civil servants’
right to stand for public office furthers the attainment of a career-orientated public
service.146
In KwaZulu-Natal Provincial Treasury v General Public Service Bargaining
Council147 the Labour Court addressed a situation in which the respondent, a state
employee, had his services unfairly terminated at a time when he was a candidate for
election to the National Assembly. The court held that s 47 does not prohibit a person in
145
This does not apply to the President, Deputy President, Ministers, Deputy Ministers and other office bearers
whose functions have been declared compatible with membership by national legislation.
146
Compare 44 BVerfGE 125 at 138, where the German Constitutional Court attempted to distinguish between
permissible campaign efforts of government officials and the improper use of public means for party political
purposes.
147
KwaZulu-Natal Provincial Treasury v General Public Service Bargaining Council (2006) 27 ILJ 163 (LC).
440
the service of the state from being a candidate for the National Assembly but, once
elected, such a person is not eligible for membership of the Assembly if he or she
remains in the service of the state. According to the court a state employee has a choice
either to accept election to the National Assembly, in which case he or she may not
remain in the service of the state, or to remain in public service, in which case he or she
is not eligible to be a member of the Assembly. The court took into account the
provisions of s 17(5)(ii) of the Public Service Act that if an officer employed by the state
assumes other employment, he or she shall be deemed to have been discharged from the
service of the state. Therefore, at the time that the respondent accepted his election to the
National Assembly, he also accepted other employment with the consequences that his
service would, ex lege, have been terminated.
441
Chapter Twenty
Citizenship
20.1 Introduction: the significance of citizenship. . . . . . . . . . . . . . . . . . . . . . . . . . . 442
20.2 International law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 443
20.3 The loss and deprivation of South African citizenship. . . . . . . . . . . . . . . . 444
20.4 The rights, privileges and benefits of citizenship . . . . . . . . . . . . . . . . . . . . . 445
20.5 Discrimination on the basis of alienage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 446
20.6 A right to request diplomatic protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 447
Citizenship
3.(1) There is a common South African citizenship.
(2) All citizens are—
(a) equally entitled to the rights, privileges and benefits of citizenship;
and
(b) equally subject to the duties and responsibilities of citizenship.
(3) National legislation must provide for the acquisition, loss and
restoration of citizenship.
Citizenship
20. No citizen may be deprived of citizenship.
20.1 INTRODUCTION: THE SIGNIFICANCE OF CITIZENSHIP

The Bill of Rights reserves certain rights for South African citizens. These are s 21(3)
and (4) (the right to enter and reside in the Republic and the right to a passport) and s 22
(the right to choose a trade, occupation or profession).1 In addition, reflecting the
relationship between citizenship and democracy, only citizens are accorded the political
rights in s 19 while ss 47(1), 106(1) and 158(1) of the Constitution provide that the right
to stand for Parliament, provincial legislatures and for municipal councils is reserved for
South African citizens. Because membership of the legislatures is reserved for citizens,
members of the executive elected from among the members of the legislatures (the
President, Deputy-President, Premiers) must also be citizens. Certain other offices under
the Constitution are reserved for citizens: judges of the Constitutional Court,2 the Public
1
See Chapters 21 and 22 below. On the restriction of the application of certain rights to a limited class of
beneficiaries, including citizens, see para 3.3(a)(i) above.
2
Section 174(1).
442
Citizenship 20.1–20.2
Protector,3 Auditor-General4 and members of the Chapter 9 commissions5 and the

Public Service Commission.6
Other provisions of the Constitution also distinguish between citizens and
non-citizens. The safeguards of ss 37(6) and (7) pertaining to detention during a state of
emergency do not apply to persons who are not South African citizens and who are held
in consequence of an international armed conflict, whether they are interned as enemy
aliens or detained as prisoners of war. Instead, the state must comply with the standards
binding on the Republic under international humanitarian law in respect of the detention
of such persons.7
The fact that the Constitution draws a distinction between citizens and non-citizens in
respect of political rights and during times of war should not be understood to mean that
non-citizens are accorded an inferior status regarding their human rights. Indeed, the
Supreme Court of Appeal has recognised that ‘[h]uman dignity has no nationality. It is
inherent in all people—citizens and non-citizens alike—simply because they are human.
And while that person happens to be in this country—for whatever reason— it must be
respected and is protected . . .’.8
This chapter discusses citizenship as a fundamental right. In addition, the
implications of s 3 of the Constitution, which guarantees all citizens equal entitlement to
rights, privileges and benefits of citizenship and subjects them to equal duties and
responsibilities, are briefly discussed. Finally, we consider the entitlement, flowing from
the citizenship right, to diplomatic protection.
20.2 INTERNATIONAL LAW

The Bill of Rights must be interpreted in the light of international law.9 In international
law states are, in principle, free to determine their own rules on the acquisition and loss
of citizenship10 and on the entry and residence of aliens. However, rules of customary
international law have been developed to prevent abuses and through international
agreements the protection of individuals has been gradually increased.11 Statelessness,12
3
Section 193(1).
4
Section 193(3).
5
Section 193(1).
6
Section 196(10)(a).
7
Section 37(8). See, further, Chapter 33 below.
8
Minister of Home Affairs v Watchenuka 2004 (4) SA 326 (SCA) [25]; Kiliko v Minister of Home Affairs 2006
(4) SA 114 (C) [28].
9
Section 39(1)(b).
10
International law generally leaves the conditions for the granting of nationality to the domestic jurisdiction
of states. See, for example, art 1 of the Hague Convention on the Conflict of Nationality Laws. Jus sanguinis
(citizenship acquired by descent from parents or grandparents who are citizens) and jus soli (citizenship acquired
through birth in the territory of the state) are the principles usually applied. For a comprehensive source on the
relevant principles, see the European Convention on Nationality (1997) (Reprinted in (1998) 37 International
Legal Materials 44).
11
Rights of citizenship are guaranteed in art 15 of the Universal Declaration of Human Rights, art 24(3) of the
International Covenant on Civil and Political Rights (ICCPR) and art 20 of the American Convention on Human
Rights. The right is described as the ‘right to a nationality’ in the Universal Declaration and the American
Convention. The ICCPR refers to the ‘right to acquire a nationality’. The American Convention also guarantees a
‘right to the nationality of the state in whose territory [a person] was born if he does not have the right to any
other nationality’.
12
Stateless persons are individuals who do not possess a nationality under the law of any state. See art 1 of the
Convention relating to the Status of Stateless Persons (1954).
443
for example, is attributable to the working of national laws,13 but international

instruments endeavour to prevent statelessness by requiring states not to deprive people
arbitrarily of their nationality.14
20.3 THE LOSS AND DEPRIVATION OF SOUTH AFRICAN CITIZENSHIP

Section 20 of the Constitution provides that ‘[n]o citizen may be deprived of
citizenship’. Deprivation of citizenship has serious consequences. It results in the loss of
all those rights, benefits, and privileges that are reserved for citizens. It may result in
statelessness, the loss of international diplomatic protection and of the right to a
passport. The aim of s 20 is to prevent such consequences. At its core, s 20 is a right
against statelessness.
Unlike the position in a number of other jurisdictions, the Constitution itself does not
provide for who is a citizen. That task has been left to the legislature. Chapter 2 of the
South African Citizenship Act 88 of 1995 deals with the acquisition of South African
citizenship while Chapter 3 of the Act deals with the loss of South African citizenship.
The Act draws a distinction between the loss of citizenship, voluntary renunciation of
South African citizenship and the deprivation of citizenship. A South African who
intends to accept the nationality of another country or who also has the citizenship or
nationality of a country other than the Republic may renounce his or her South African
citizenship and the Minister of Home Affairs must then give effect to this wish.15 South
African citizens lose their citizenship if they voluntarily acquire the citizenship of
another country, other than by marriage.16 A citizen who also has citizenship of another
country will lose citizenship if he or she serves in the armed forces of a country at war
with South Africa17 and, in the case of a citizen by naturalisation ‘if he or she engages,
under the flag of another country, in a war that the Republic does not support’.18 The
Minister may deprive naturalised citizens of their citizenship if they obtained it
illegally.19 South African citizens with another nationality may be deprived of their
citizenship if they are sentenced to more than twelve months’ imprisonment for any
offence which, if it was committed outside the Republic, would also have constituted an
offence in the Republic, or if the Minister is satisfied that it is in the public interest that
such a person shall cease to be a South African citizen.20 The Minister may also order
that the minor children of persons who lose or are deprived of their citizenship, shall
cease to be South African citizens.21 The Minister may however also order that a person
resume his or her citizenship, especially if the grounds for loss or deprivation no longer
exist.22
13
A child may, for example, be born in a state applying the jus sanguinis principle while its parents have the
citizenship of another state which adheres to the jus soli rule.
14
See art 15, Universal Declaration of Human Rights; Convention on the Reduction of Statelessness, (1961);
Convention on the Nationality of Married Women (1957).
15
Section 7 of the Citizenship Act.
16
Section 6(1)(a).
17
Section 6(1)(b).
18
Section 6(3).
19
Section 8.
20
Section 8(2).
21
Section 10.
22
Section 13.
444
The Citizenship Act does not permit loss or deprivation of citizenship for South
Africans without a foreign nationality. The application of the Act can therefore not
result in statelessness.23 Whenever a person ceases to be a South African citizen he or
she is not thereby discharged from any obligation, duty or liability in respect of any act
done or committed before he or she ceased to be a South African citizen.24
The powers that the Minister of Home Affairs enjoys in terms of the Citizenship Act
should be interpreted in the light of s 20 of the Constitution and are subject to s 25 of the
Act. The latter provides that the High Court ‘shall have jurisdiction to review any
decision made by the Minister under this Act’. A court reviewing such decisions ‘may
call upon the Minister to furnish reasons and to submit such information as the court
deems fit, and the court shall have jurisdiction to consider the merits of the matter under
review, and confirm, vary or set aside the decision of the Minister’. When doing so, the
protection of the Bill of Rights will apply and international law should be used for the
purpose of interpretation.
Despite the extensive powers of the courts to review the decisions of the Minister,
and the possibilities of interpreting the provisions of the Act with reference to the
Constitution and international law, some of the provisions of the 1995 Act (as amended)
may well be overbroad and unconstitutional. The problem is that the Act confers
discretionary power upon the Minister without laying down any guidelines for the
exercise of the powers. The purpose of the provisions for loss and deprivation of
citizenship are not even specified. This makes it possible for the Minister to abuse his or
her powers under the Act. More fundamentally, the provisions on deprivation of
citizenship run counter to s 20 of the Constitution which provides, without qualification,
that ‘no citizen may be deprived of citizenship’.25 The conferment of discretionary
power to deprive a person of a fundamental right like citizenship, without laying down
any guidelines or even statutory objectives, will be difficult to justify under the
limitation clause.26
20.4 THE RIGHTS, PRIVILEGES AND BENEFITS OF CITIZENSHIP

By requiring ‘a common South African citizenship’, s 3 of the Constitution prohibits
discrimination in respect of citizenship. Further, all citizens are ‘equally entitled to the
rights, privileges and benefits of citizenship’ and are equally subject to the duties and
responsibilities that attach to citizenship. This provision clearly incorporates equality
into the notion of citizenship. It rejects the apartheid order and its racial hierarchies of
‘first-class’ and ‘second-class citizens’.27
In a substantive sense, the ‘rights, privileges and benefits of citizenship’ include the
right to live in and to return to the Republic, to enjoy the protection of its laws, the right
23
Section 11.
24
Section 12.
25
Compare s 20 of the interim Constitution, which provided that ‘no citizen shall, without justification, be
deprived of citizenship’.
26
See Dawood v Minister of Home Affairs 2000 (3) SA 936 (CC) [47].
27
See Mhlekwa v Head of the Western Tembuland Regional Authority 2000 (9) BCLR 979 (Tk), 100
(resurrection of concept of Transkei citizenship not compatible with s 3 of the Constitution, but concept may be
used to define the group of persons subject to Regional Authority Courts); Mashavha v President of the Republic
of South Africa 2005 (2) SA 476 (CC) [51] (lack of uniformity in social assistance benefits between provinces
‘would offend the dignity of people, create different classes of citizenship and divide South Africa in favoured
and disfavoured areas’).
445
to a passport28 and the right of adult citizens to vote and stand for office. Citizens also
have obligations to the state. In many states, this entails the rendering of military
service. The state may also not discriminate when it imposes duties on citizens, for
example by requiring only citizens by descent to render military service.
20.5 DISCRIMINATION ON THE BASIS OF ALIENAGE

While the Constitution prohibits discrimination as between citizens, the right to equality
further ensures that rights which are to the benefit of ‘everyone’ cannot be denied to
persons on account of their being non-citizens. For example, in Khosa v Minister of
Social Development29 the Constitutional Court dealt with a challenge to certain
provisions of the Social Assistance Act 59 of 1992 by a number of Mozambican citizens
who had acquired permanent residence status in South Africa. The applicants contended
that their exclusion as non-citizens from the social assistance scheme created by the Act
was inconsistent with the state’s obligations under s 27(1)(c) of the Bill of Rights to
provide access to social security to ‘everyone’.30 The state’s argument was that
non-citizens have no legitimate claim of access to social security and that they were
therefore reasonably excluded from the social assistance scheme.31 The Constitutional
Court disagreed. It held that the Constitution ‘properly interpreted’ provides that a
permanent resident qualifies for access to social security, and that discrimination on the
basis of non-citizenship in the context of social assistance amounted to unfair
discrimination.32 That is because ‘the exclusion of permanent residents from the scheme
is likely to have a severe impact on the dignity of the persons concerned, who, unable to
sustain themselves, have to turn to others to enable them to meet the necessities of life
and are thus cast in the role of supplicants.’33
The Khosa decision is of profound importance. It affirms that rights in the Bill of
Rights that are reserved for ‘everyone’ cannot be construed as referring only to
‘citizens’.34 It also highlights that unfair discrimination against non-citizens is contrary
to the Constitution.35 Non-citizens are a vulnerable group in South African society and
their exclusion from social welfare benefits has a ‘strong stigmatising effect’.36
South African courts are likely to be seized with new challenges regarding
non-citizens. One such challenge may come in the form of cases involving transnational
crime and particularly international terrorism, requiring the courts to balance the rights
of non-citizens and the security concerns that have arisen in response to terrorism
28
The right to a passport is provided for in s 21 of the Constitution which deals with freedom of movement
and residence. See Chapter 21 below.
29
Khosa v Minister of Social Development 2004 (6) SA 505 (CC).
30
Ibid [38].
31
Ibid [50].
32
Ibid [70]–[85]. See also Larbi-Odam v Member of the Executive Council for Education (North-West
Province) 1998 (1) SA 745 (CC) (discrimination on the basis of non-citizenship in the context of permanent
employment was unfair discrimination).
33
Khosa (note 29 above) [80].
34
Ibid [47].
35
Not decided on the basis of equality, but to similar effect, is Minister of Welfare and Population
Development v Fitzpatrick 2000 (3) SA 422 (CC). There the Constitutional Court found that the provisions of
s 18(4)(f) of the Child Care Act 74 of 1983, which proscribed the adoption of a child born of a South African
citizen by, inter alia, a non-citizen, violated the Constitution’s commitment in s 28(2) to the ‘child’s best
interests’.
36
Khosa (note 29 above) [74].
446
threats.37 Certainly the balance is not an easy one to strike. However, vigilance is
required to ensure that the state’s response to such threats does not disproportionately
impact on rights of non-citizens. Already the Constitutional Court has made it clear that
the very fabric of our society and the values embodied in the Constitution could be
demeaned if the freedom and dignity of illegal foreigners are violated in the process of
preserving South Africa’s national integrity.38 The temptation to overreach is
understandable, but not justifiable. In a decision dealing with provisions of the UK
Anti-terrorism, Crime and Security Act 2001 that allowed for the indefinite detention of
non-British citizens, the House of Lords held that a law which allows the state the power
of detention, but which confines this power to foreigners, is irrational and
discriminatory.39
20.6 A RIGHT TO REQUEST DIPLOMATIC PROTECTION

The guarantee in s 3 that all citizens have equal entitlement to the rights, privileges and
benefits of citizenship includes a right to request diplomatic protection from the
government, which must consider and decide on the request rationally.40
International law provides for the right of states to protect their own citizens vis-à-vis
other states by exercising ‘diplomatic protection’ on their behalf.41 This happens when
the offending state has violated the ‘international minimum standard’ which a state must
apply to foreigners finding themselves within its territory. A violation of the
international minimum standard constitutes an international delict against the state of
nationality of the aggrieved individual.42
Such a state may then decide to take up its national’s claim (which is called
diplomatic protection) and act against the offending state through international channels.
It is only with respect to its own citizens that a state is entitled to grant this protection.43
In terms of international law, a citizen does not have a right to diplomatic protection.
37
See A Katz ‘Immigration and the Court: From Xu to Ruyobeza: Ten Years under the South African
Constitution’ in M du Plessis & S Pete (eds) Constitutional Democracy in South Africa: 1994–2004 (2004) 118.
38
39
A (FC) v Secretary of State for the Home Department [2004] UKHL 56. See the speech of Lord Bingham of
Cornhill: ‘What cannot be justified here is the decision to detain one group of suspected international terrorists,
defined by nationality or immigration status, and not another’ [68].
40
Kaunda v President of the Republic of South Africa 2005 (4) SA 235 (CC); Van Zyl v Government of the
Republic of South Africa 2008 (3) SA 294 (SCA); Government of the Republic of South Africa v Von Abo 2011 (5)
SA 262 (SCA).
41
See Barcelona Traction, Light & Power Co Ltd 1970 ICJ Reports 3. An explanation of this principle can be
found in the Mavrommatis Palestine Concessions Case (Jurisdiction) (1924) PCIJ Reports (Series A, No 2), 12:
‘It is an elementary principle of international law that a State is entitled to protect its subjects, when injured by
acts contrary to international law committed by another State, from whom they have been unable to obtain
satisfaction through the ordinary channels. By taking up the case of one of its subjects and by resorting to
diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own rights,
its right to ensure, in the person of its subjects, respect for the rules of international law.’ The asserting of the
State’s own rights refers to its rights under international law against another state; the individual does not have
‘rights’ vis-à-vis other states.
42
It is also available to juristic persons such as corporations. They enjoy the nationality of the country in
which they are incorporated. A state will frequently require incorporation in that state as a precondition for a
company to operate there. In such a case a state may be entitled to protect its nationals who are shareholders of
the company if there is a direct injury to their rights as such. See the discussion in Van Zyl (note 40 above) [81]
to [86].
43
The reason why individuals cannot act directly against foreign states on the international plane is a remnant
of the traditional approach which recognises states as the true subjects of international law.
447
However, some states will, in terms of their own constitution or domestic law, be under
a duty to consider individual requests for diplomatic protection.44
Once citizenship is ‘constitutionalised’ as a fundamental right, the state has
constitutional duties towards its citizens.45 According to Chaskalson CJ in Kaunda:
South African citizenship requirements are such that citizens invariably, if not always, will
be nationals of South Africa. They are entitled, as such, to request the protection of South
Africa in case of need. . . . The entitlement to request diplomatic protection which is part of
the constitutional guarantee of section 3 has certain consequences. If, as I have held, citizens
have a right to request government to provide them with diplomatic protection, then
government must have a corresponding obligation to consider the request and deal with it
consistently with the Constitution.46
Admittedly the ‘right to request government to provide them with diplomatic protection’
does not appear to be a particularly strong ‘right’. The majority of the Constitutional
Court in Kaunda appears to have done little more than underline what any citizen has
always been entitled to do, namely, to write a letter to his or her government asking for
assistance. Nonetheless, to the extent that such ‘right’ has any meaning, it lies in the
correlative obligation placed upon the state once it has received the citizen’s request.
The court has made it clear that the South African state has a duty to properly (ie, in the
light of its constitutional duties to uphold the rights in the Bill of Rights) consider an
application for the granting of diplomatic protection. We suggest that the duty entails
that such an application should be fully considered, through a procedure that is fair, and
involves the granting of reasons.47 In respect of the government’s obligations towards its
citizens who request diplomatic protection, the Constitutional Court has hinted that the
content of that duty depends on the evidence and the seriousness of the violation
suffered by the citizen at the hands of a foreign state. According to Chaskalson CJ:
There may thus be a duty on government, consistent with its obligations under international
law, to take action to protect one of its citizens against a gross abuse of international human
rights norms. A request to the government for assistance in such circumstances where the
evidence is clear would be difficult, and in extreme cases impossible to refuse. . . . There
may even be a duty on government in extreme cases to provide assistance to its nationals
against egregious breaches of international human rights which come to its knowledge. The
victims of such breaches might not be in a position to ask for assistance, and in such
circumstances, on becoming aware of the breaches, the government may well be obliged to
take an initiative itself.48
The outcome of Kaunda suggests that South African courts will nevertheless be slow to
exercise their constitutional oversight power to review the state’s correlative duty
arising from a request by a citizen for diplomatic protection. While the Constitutional
Court has reserved for courts the right to review a failure by the government to consider
a legitimate request, or a request dealt with in bad faith or irrationally, it stressed ‘that
government has a broad discretion in such matters which must be respected by the
44
See A Geck ‘Diplomatic Protection’ in R Bernhardt (ed) Encyclopedia of Public International Law (1992)
vol 2 1045, and the judgments of the German Constitutional Court cited there. M Sachs Grundgesetz Kommentar
(1996) 536–537.
45
See, further, G Erasmus ‘South African Citizenship in a Constitutional Context’ (1998) 23 Tydskrif vir
Regswetenskap 1.
46
Kaunda (note 40 above) [62] and [67].
47
See the comments of the Court in Von Abo (note 40 above) [39]–[40].
48
Ibid [69] and [70].
448
Citizenship 20.6
courts.’49 The majority of the court dismissed an application brought by a number of

South African citizens who were detained in Zimbabwe on various charges, it being
alleged that they were mercenaries bent on staging a coup in Equatorial Guinea. The
applicants had sought an order directing the government to take action at a diplomatic
level to ensure that their rights under the South African Constitution were respected. In
particular, they sought an order compelling the South African government to seek an
assurance from Zimbabwe and Equatorial Guinea that the death penalty would not be
imposed on the applicants50 and an order directing the government to ensure that the
rights of the applicants to fair detention and fair trial would be respected by the foreign
governments. In dismissing the application, Chaskalson CJ found acceptable the
government’s policy to make representations concerning the imposition the death
penalty ‘only if and when such punishment is imposed on a South African citizen’, and
accepted that the government had in fact taken up with the Zimbabwean government the
applicants’ requests for assistance regarding their conditions of detention in a
Zimbabwean jail. According to Chaskalson CJ: ‘How to respond to the events which
have taken place requires great sensitivity, calling for government evaluation and
expertise. It would not be appropriate in the circumstances of this case for a court to
require or propose any approach with regard to timing or modalities different to that
adopted by government’.51
The danger in diplomatic protection cases is that deference to the executive branch
in the realm of foreign relations as exercised by the Constitutional Court may easily
lead to an evisceration of the ‘right to request diplomatic protection’. It is difficult to
conclude that the applicants’ right to request diplomatic protection was given any
real meaning by the majority judgment in Kaunda. For one thing, the government
had persistently argued that it was under no constitutional duty to assist the
applicants—yet the majority declined to issue a declaratory order in which it
confirmed the government’s constitutional duty. Furthermore, when one considers the
majority’s finding that the applicants were being held in Zimbabwe under
‘deplorable’ conditions52 and that there would be ‘serious concern about the fairness
of the trial’ that the applicants might face in Equatorial Guinea should they be
extradited there,53 it is difficult to imagine what level of proof and what manner of
human rights violation will compel the courts to look past the deference that is owed
to the executive in foreign policy matters. While both the majority and minority
judgments stressed that the government should be afforded a wide discretion in such
matters, we suggest that the minority judgment may well lead to a more effective
protection of rights. In the face of government’s insistence that it owed no duty to
the applicants, the minority proposed declaratory relief that the respondents ‘are
49
Ibid [80].
50
The applicants were particularly concerned about being extradited to Equatorial Guinea to face the death
penalty. The evidence before the Constitutional Court was that there were serious concerns about the criminal
justice system in that country. See Kaunda (ibid) [116]–[121] (Chaskalson CJ) and [265]–[268] (O’Regan J).
51
Ibid [144].
52
Ibid [139].
53
Ibid [124].
449
under a constitutional obligation to take appropriate steps to provide diplomatic

protection to the applicants to seek to prevent the egregious violation of international
human rights norms’.54 In so doing, Justices O’Regan and Mokgoro went some way
towards vindicating the applicants’ ‘right to request diplomatic protection’.
54
Kaunda (note 40 above) [269] and [271] (O’Regan J, Mokgoro J concurring).
450
Chapter Twenty-one
Freedom of Movement and

Residence
21.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 451
21.2 The scope of s 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 452
(a) The right to freedom of movement and to leave the Republic . . . . 452
(b) The right to enter, remain and reside in the Republic. . . . . . . . . . . . . 453
(c) The right to a passport. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 453
21.3 Application to foreign nationality in the immigration context . . . . . . . . 454
21.4 Refugees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 455
Freedom of movement and residence

21. (1) Everyone has the right to freedom of movement.
(2) Everyone has the right to leave the Republic.
(3) Every citizen has the right to enter, to remain in and to reside
anywhere in, the Republic.
(4) Every citizen has the right to a passport.
21.1 INTRODUCTION
In international law, freedom of movement has what can be termed ‘internal’ aspects—
the right to move freely and to choose one’s place of residence within the borders of a
country—and ‘external’ aspects—the right to leave one’s country and to return to it.1
All aspects are protected by s 21. The historical significance of the entrenchment of
these rights in the South African Constitution is considerable. Apartheid legislation
imposed severe restrictions on the freedom of movement. Security legislation allowed
the banishment of political dissidents or their confinement to particular areas.2
Throughout the twentieth century, versions of pass laws and racial restrictions on
residence and the ownership of property divided the national territory into race zones,
policed by check-points, random document checks and raids on homes. The issuing of a
passport, essential to the exercise of the right to leave the country, was a matter of
1
Dugard Human Rights 136. See art 13 of the Universal Declaration of Human Rights; art 12 of the
International Covenant on Civil and Political Rights; art 12 of the African Charter on Human and Peoples’
Rights. On art 12 of the ICCPR, see UN Human Rights Committee General Comment 27 ‘Right to Freedom of
Movement’.
2
Dugard Human Rights 137.
451
government discretion and routinely denied to opponents of the regime.3 Legislation

permitted those who were determined to leave the country to apply for an ‘exit permit’,
a one-way journey into statelessness.4
As apartheid South Africa demonstrates, freedom of movement is one of the first and
inevitable victims of an authoritarian state.5 Putting these types of egregious and
self-evident violations of the right aside, in modern democracies the right is restricted by
a number of subtler forms of regulation. The internal aspects of freedom of movement
tend to be an issue of some importance in federal states, where legislation limits the
ability of citizens to work outside their home state or restricts recognition of
qualifications from another state. The external aspects are implicated by measures
designed to inhibit or prohibit emigration by skilled personnel (the ‘brain drain’). The
principal jurisprudential issues raised by the right to return relate to the effects on the
right of renunciation of citizenship or the acquisition of citizenship of another country
and to the question whether the right can be claimed by those who are not citizens of a
country but have connections of history, language, race or religion.6
21.2 THE SCOPE OF S 21
(a) The right to freedom of movement and to leave the Republic

In Elliott v Commissioner of Police,7 the Zimbabwean Supreme Court held that a
provision that made it an offence for a person to be found ‘without his identity document
on his person’ was a violation of the right to freedom of movement. In the course of the
judgment, Gubbay CJ stated that there was ‘respectable authority supportive of the
proposition that a random stoppage of a person authorised by law, however brief it may
be and for whatever purpose, is a detention. It interferes with the right of freedom of
movement’.8
In South Africa, it is likely that challenges to practices such as identity checks and
police roadblocks would be brought instead under s 12, the right to freedom and security
3
See Sachs v Dönges NO 1950 (2) SA 265 (A), Tutu v Minister of Internal Affairs 1982 (4) SA 571 (T), Boesak
v Minister of Home Affairs 1987 (3) SA 665 (C), G Carpenter ‘Passports and the Right to Travel—The South
African Perspective’ (1990) XXIII CILSA 1. Passports were issued and withdrawn in the exercise of the
executive’s prerogative powers. Such powers could only be reviewed if it could be shown that the Minister had
failed to apply his mind or that the decision was so grossly unreasonable that it warranted the inference that it was
made mala fides or with an ulterior motive. This was not easily done. In the Tutu case, for example, the court held
the following justification of then Prime Minister PW Botha to be good cause for the withdrawal of a passport:
‘When you travel on a passport granted to you, you must behave, you cannot use the privilege granted to you and
then misuse it to organise boycotts against your country. I repeat, Bishop Tutu’s passport will definitely be
withdrawn.’
4
Departure from the Union Regulation Act 34 of 1955. See Dugard Human Rights 141–143.
5
Dugard Human Rights 137. Witness, for example, the curfews and movement restrictions imposed by Israel
on the population of the Occupied Territories. See Amnesty International ‘Israel and the Occupied Territories
Surviving under Siege: The Impact of Movement Restrictions on the Right to Work’ (8 September 2003). See too
the advisory opinion of the International Court of Justice on the Legal Consequences of the Construction of a
Wall in the Occupied Palestinian Territory (9 July 2004). A number of countries (Cuba, Burma, North Korea)
effectively keep their populations captive by restrictions on foreign or even internal travel.
6
H Hannum The Right to Leave and Return in International Law (1987) 56.
7
Elliott v Commissioner of Police, Zimbabwe 1998 (1) SA 21 (ZS).
8
Ibid 24I–J (citing, inter alia R v Hufsky (1988) 32 CRR 103 (SC) and Delaware v Prouse 440 US 648 (1979)).
452
Freedom of Movement and Residence 21.2
of the person.9 The right to freedom of movement is therefore not particularly

implicated with physical liberty. It is predominantly a right to move about freely in the
national territory and to leave it.10
(b) The right to enter, remain and reside in the Republic

This part of s 21 is available to citizens only. Section 21 confers upon citizens the right
to enter the Republic. In any event, international law obliges a state to accept its own
nationals when they are deported from another country.
As far as the right to remain and reside in the Republic is concerned, South African
citizens may be extradited.11 Surrender in extradition is an acceptable limitation of the
right to remain in South Africa. However, extradition requires a formal, judicial
procedure and may not be left entirely to the discretion of government officials.12 It has
been defined as ‘the delivery of an accused or a convicted individual to the state where
he is accused of, or has been convicted of, a crime, by the state on whose territory he
happens for the time to be’.13 A request for extradition must be refused if the fugitive
will be punished for political views or if he or she will be subjected to torture, inhuman
or degrading treatment or punishment, or assurances must be obtained from the
receiving state that such punishment will not be imposed.14 The same principle applies
to the unilateral act of deporting an undesirable alien from South Africa.15
(c) The right to a passport

The South African Passports and Travel Documents Act 4 of 1994 gives effect to the
right in s 21(4).
Section 3 of the Act provides that ‘every South African citizen shall be entitled to a
South African passport’. Somewhat worrying however is that the Minister of Home
9
See, further, Chapter 12 below. Malachi v Cape Dance Academy International (Pty) Ltd 2010 (6) SA 1 (CC)
[14] (procedure for arrest tanquam suspectus de fuga alleged by applicant to infringe several rights, including
freedom of movement; held to most directly implicate the right to freedom and security of the person). But see
Victoria & Alfred Waterfront (Pty) Ltd v Police Commissioner of Western Cape 2004 (4) SA 444 (C) (distinctive
character of Cape Town waterfront makes it private property of a particular kind to which the right of freedom of
movement applies; court narrowing interdict that would have permanently prohibited certain individuals from
entering waterfront).
10
Matatiele Municipality v President of the Republic of South Africa (No 2) 2007 (6) SA 477 (CC) [80]
(freedom of movement and residence includes the right of every citizen to enter any province for purposes of
establishing residence therein); Affordable Medicines Trust v Minister of Health 2006 (3) SA 247 (CC)
[102]–[103] (regulations requiring compounding and dispensing of medicines to take place on specified licensed
premises do not implicate the right to freedom of movement).
11
Geuking v President of the Republic of South Africa 2003 (3) SA 34 (CC). This is in contradistinction to the
approach of civil law countries which almost invariably do not extradite their own criminals but exercise
extraterritorial jurisdiction over crimes committed by their citizens abroad (on the basis of passive nationality).
See the comment on the position in Germany in Geuking fn 2.
12
Harksen v President of the Republic of South Africa 2000 (2) SA 825 (CC); Geuking (note 11 above);
Director of Public Prosecutions, Cape of Good Hope v Robinson 2005 (4) SA 1 (CC).
13
R Jennings & A Watts (eds) Oppenheim’s International Law 9 ed (1992) Vol 1 948–949. See also Mohamed
v President of the Republic of South Africa 2001 (3) SA 893 (CC) [42]: ‘Extradition is the handing over by one
state to another state of a person convicted or accused there of a crime, with the purpose of enabling the receiving
state to deal with such person in accordance with the provisions of its law’.
14
See s 11(b) of the Extradition Act 67 of 1962; Mohamed (note 13 above) [53] (removal of a person to
another country where he or she may face the death penalty, thereby threatening the life or human dignity of such
person, requires South Africa to obtain assurances from the recipient state that the death penalty will not be
imposed or carried out).
15
Ibid. See also the House of Lords’ decision in R v Special Adjudicator: ex parte Ullah [2004] UKHL 26.
453
Affairs may make regulations regarding the ‘circumstances under which the issue of a
South African passport or travel document may be refused or such passport or travel
document may be withdrawn’. The Minister may also make regulations regarding
endorsements, periods of validity and ‘other restrictions’.16 These provisions may not be
interpreted to allow the Minister to withdraw a passport or impose conditions on its use
without good reason. Section 21(4) of the Constitution demands an interpretation which
requires both fair procedures to be followed and compelling reasons to be present when
the right to use a passport is restricted.
21.3 APPLICATION TO FOREIGN NATIONALITY IN THE IMMIGRATION CONTEXT

While the rights to freedom of movement and to leave the Republic are available to
everyone, only citizens have the right to a passport and the right to enter, remain in and
to reside in the Republic.
International law gives national states the freedom to regulate the entry of foreign
nationals.17 There is no right to enter a country of which one is not a national. However,
several international instruments guarantee foreigners freedom of movement and
residence once they are lawfully inside a country.18 It may not be necessary for
foreigners to invoke these instruments because, in terms of the South African Bill of
Rights, once inside South Africa foreigners are entitled to all those rights available to
‘everyone’,19 including the right to freedom of movement.20
Although aliens have no right to enter and reside in a foreign country, the right to
respect for marriage and family life that stems from the rights to dignity and equality in
the Constitution has an impact on the content of immigration laws. In National
Coalition for Gay and Lesbian Equality v Minister of Home Affairs the Constitutional
Court held that same-sex couples had a right to enjoy the same immigration benefits and
privileges accorded to married couples.21 Dawood v Minister of Home Affairs22 held that
it was a violation of the right to dignity to require foreign spouses of South African
citizens who have applied for permanent residence on the basis of their marriage to
return to their home country before the application for permanent residence will be
considered. The requirement significantly impaired a central aspect of marriage—
cohabitation, the right (and duty) of spouses to live together.23 In Booysen24 provisions
16
See, in general, s 4(1) of the Act. Prior to 1995, a South African passport contained a warning to the holder
that the Minister of Home Affairs may withdraw it at any time.
17
Dawood v Minister of Home Affairs 2000 (1) SA 997 (C), 1043J. The Constitutional Court has indicated
that the use of the word ‘alien’ is no longer acceptable and the preferred nomenclature is ‘foreign national’. See
National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC) fn 11.
18
Art 13 of the Universal Declaration of Human Rights (1948); art 2 of Protocol 4 (1963) to the European
Convention of Human Rights and Fundamental Freedoms; art 12 of the International Covenant on Civil and
Political Rights (1966).
19
Khosa v Minister of Social Development 2004 (6) SA 505 (CC); see also Larbi-Odam v Member of the
Executive Council for Education (North-West Province) 1998 (1) SA 745 (CC); Lawyers for Human Rights v
Minister of Home Affairs 2004 (4) SA 125 (CC) [26] (foreigners detained as illegal immigrants at a port of entry
prior to entering South Africa are beneficiaries of the rights in the Bill of Rights).
20
For a general discussion of immigration law under the Constitution see A Katz, ‘Immigration and the Court:
From Xu to Ruyobeza: Ten Years under the South African Constitution’ in M du Plessis & S Pete (eds)
Constitutional Democracy in South Africa: 1994—2004 (2004).
21
National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC).
22
Dawood v Minister of Home Affairs (note 17 above).
23
Ibid [37].
24
Booysen v Minister of Home Affairs 2001 (4) SA 485 (CC).
454
Freedom of Movement and Residence 21.3–21.4
of the Aliens Control Act, which did not allow for foreign spouses to obtain work
permits unless the usual requirements (such as possession of special skills) were
satisfied, were held to be unconstitutional. Again, the basis for the holding was the right
of spouses to cohabit and to enjoy family life, derived from the right to dignity.25
21.4 REFUGEES
The position of refugees requires special attention and has become a matter of
considerable concern to South Africa because, since the advent of democracy, it has
become a destination for refugees fleeing conflict and political repression in the region.
On 6 September 1993 a Basic Agreement between the Government of the Republic of
South Africa and the United Nations High Commissioner for Refugees was concluded.
The agreement set out the policy regarding persons seeking asylum in South Africa. In
1996 South Africa acceded to the 1951 UN Convention Relating to the Status of
Refugees and the 1967 Protocol (New York) to the Convention. In 1996 South Africa
also became party to the OAU Convention Governing the Specific Aspects of Refugee
Protection of 10 September 1969. In doing so South Africa undertook international
obligations in respect of persons seeking asylum.
Until recently, applications for asylum and refugee status were dealt with in terms of
the Aliens Control Act 96 of 1991. Even then, South African courts have ruled that
international law and the consequences of a denial of refugee status must be taken into
account when such applications are considered. 26
The Refugees Act 130 of 1998 now provides a new refugee regime which aims to
reflect the principles contained in various international instruments dealing with
refugees.27 Section 3 of the Act defines a ‘refugee’, along the lines of the 1951 UN
Convention as someone who:
(a) owing to a well-founded fear of being persecuted by reason of his or her race, tribe,
religion, nationality, political opinion or membership of a particular social group, is
outside the country of his or her nationality and is unable or unwilling to avail himself
or herself of the protection of that country, or, not having a nationality and being
outside the country of his or her former habitual residence is unable or, owing to such
fear, unwilling to return to it; or
(b) owing to external aggression, occupation, foreign domination or events seriously
disturbing or disrupting public order in either a part or the whole of his or her country
of origin or nationality, is compelled to leave his or her place of habitual residence in
order to seek refuge elsewhere; or
(c) is a dependant of a person contemplated in para (a) or (b).
Section 4 provides that despite fleeing their homes as described in s 3, prospective
asylum-seekers will nevertheless be excluded from refugee status if they have been
guilty of serious crimes or war crimes.
25
Ibid [10].
26
See Kabuika v Minister of Home Affairs 1997 (4) SA 341 (C) and Baromoto v Minister of Home Affairs 1998
(5) BCLR 562 (W).
27
See the Preamble to the Act.
455
These provisions clearly require administrative mechanisms to be created to

receive, investigate and process applications for refugee status. The Refugees Act
and the Refugee Regulations28 deal in full with all matters relating to applications for
asylum.
Section 2 of the Act incorporates the idea of non-refoulement. A refugee may not
be refused entry into the Republic, be expelled, extradited or returned to a country
where the refugee will be ‘subjected to persecution on account of his or her race,
religion, nationality, political opinion or membership of a particular social group; or
his or life, physical safety or freedom would be threatened on account of external
aggression, occupation, foreign domination or other events seriously disturbing or
disrupting public order in either part or the whole of that country.’
On entering the country a person must make an application for an asylum-seeker
permit. Until an asylum seeker permit is issued the applicant is an illegal foreigner
and vulnerable to deportation.29 Thereafter, an applicant applies for asylum. Once a
person has satisfied the authorities that he or she qualifies for refugee status, asylum
will be granted, and he or she is then deemed to be a refugee for the purposes of the
Refugees Act. A preliminary interview must be conducted with asylum seekers
(people seeking refugee status) by a Refugee Reception Officer. Administrative
structures, such as Refugee Determination Officers, Standing Committees and Appeal
Boards have been created to deal with these applications and judicial review will be
available once administrative remedies have been exhausted. The aim is also to
create an accelerated procedure to dispose of manifestly unfounded, abusive and
fraudulent claims.
Once granted refugee status, a person is entitled to certain rights, including the
rights in the Bill of Rights, the right to seek employment and the entitlement ‘to the
same basic health services and basic primary education which the inhabitants of the
Republic receive from time to time’.30
Refugees are ‘unquestionably a vulnerable group in our society and their plight
calls for compassion’.31 In Watchenuka provisions of the Refugee Regulations that
prohibited asylum seekers from employment and study while their application for
asylum was being processed were held to be unconstitutional. Where employment is
the only reasonable means for a person’s support and it is prohibited, such
prohibition is a restriction on the ability to live without positive humiliation and
degradation and therefore of the right to human dignity.32
In Kiliko33 the practice of the Department of Home Affairs in the Western Cape of
processing only 20 asylum seeker permits per day was declared inconsistent with the
rights to dignity and freedom and security of the person of those foreigners who
wished to apply for permits but could not do so. Because of the policy, the
applicants, who appeared at the refugee reception office daily, sometimes even
sleeping in the queue overnight, never gained access to the office. Until they had
28
GN R 366 in Government Gazette 21075 of 6 April 2000.
29
Kiliko v Minister of Home Affairs 2006 (4) SA 114 (C) [27]; Arse v Minister of Home Affairs 2012 (4) SA
544 (SCA) [22].
30
Section 27 of the Refugees Act.
31
Union of Refugee Women v Director: Private Security Industry Regulatory Authority 2007 (4) SA 395 (CC)
[28].
32
Minister of Home Affairs v Watchenuka 2004 (4) SA 326 (SCA).
33
Note 29 above.
456
Freedom of Movement and Residence 21.4
been issued with a permit they were illegally in the country and vulnerable to
deportation. In addition, as the court pointed out, a person in such a position ‘may
not be employed by anyone (s 38 [of the Immigration Act 13 of 2002]), may not be
provided with training or instruction . . . and is, save for necessary humanitarian
assistance, severely restricted as regards a wide range of activities that human beings
ordinarily participate in’.34
34
Ibid [27].
457
Chapter Twenty-two
Freedom of Trade, Occupation and

Profession
22.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 458
22.2 Section 26 of the interim Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 459
22.3 Section 22 of the 1996 Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 462
(a) Interpreting s 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 462
(b) Beneficiaries of s 22: ‘citizens’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 463
(c) Choice of a trade, occupation or profession . . . . . . . . . . . . . . . . . . . . . . 464
(d) Practice of a trade, occupation or profession . . . . . . . . . . . . . . . . . . . . . 467
22.4 Application of s 22 to contractual restraints of trade. . . . . . . . . . . . . . . . . . 469
Interim Constitution
Economic activity
26.(1) Every person shall have the right freely to engage in
economic activity and to pursue a livelihood anywhere in the national
territory.
(2) Subsection (1) shall not preclude measures designed to promote
the protection or the improvement of the quality of life, economic
growth, human development, social justice, basic conditions of
employment, fair labour practices or equal opportunity for all, provided
such measures are justifiable in an open and democratic society based
on freedom and equality.
1996 Constitution
Freedom of trade, occupation and profession
22. Every citizen has the right to choose their trade, occupation or
profession freely. The practice of a trade, occupation or profession may
be regulated by law.
22.1 INTRODUCTION
The inclusion of an economic activity right in the interim Constitution, the interpretation
of the right and the question whether it should be retained in the 1996 Constitution were
all highly controversial issues. The controversy can be traced to a broader disagreement
among the participants in the constitution-making process on fundamental issues of
458
Freedom of Trade, Occupation and Profession 22.1–22.2
political economy.1 Simply put, opinion was divided between those who favoured
giving the post-apartheid state as free a hand as possible to engage in socio-economic
reconstruction and those who emphasised the protection of individual freedom, property
and economic liberty. The first school of thought appears to have persuaded the
Constitutional Assembly to replace the economic activity right with a narrower right to
‘occupational choice’ or ‘occupational freedom’ in the 1996 Constitution.2
In what follows, the interpretation of s 26 of the interim Constitution by the
Constitutional Court will be briefly considered.3 Despite the differences in formulation,
these cases continue to provide assistance in the interpretation of its successor—s 22.
22.2 SECTION 26 OF THE INTERIM CONSTITUTION

In S v Lawrence, the Constitutional Court considered a challenge to provisions of the
4
Liquor Act 27 of 1989 on the grounds that they were unconstitutional violations of the
right to free economic activity. The licensing system set up by the Act restricted the
selling of liquor by the holders of grocer’s wine licences (supermarkets, convenience
stores and other food retailers) in three ways: they were prohibited from selling wine
after business hours on weekdays, they were not allowed to sell wine on ‘closed days’
(defined as Sundays, Christmas and Good Friday)5 and they could not sell any liquor
other than wine. In the course of its judgment, the court made some important
observations about the scope of s 26 and the reconciliation of the qualifying criteria in
s 26(2)6 with the general limitation clause in s 33 of the interim Constitution.
According to the court, the two subsections of s 26 had to be read together in order to
determine the scope of the right.7 It was assumed in favour of the appellants, without
deciding the point, that all constraints on economic activity that fell outside the list of
objectives set out in s 26(2) would be a breach of the freedom of trade right. In other
words, the court assumed that a measure that placed constraints on free economic
activity would violate s 26 unless it was designed to promote one or more of the listed
objectives (improvement of the quality of life, economic growth, human development,
etc). On the basis of this assumption, the court then considered the connection which
had to exist between the measure and the list of objectives: what did ‘measures designed
to promote’ mean? It was held that ‘design’ meant to intend something to be, to do
something, or to mean something to serve some purpose. ‘This does not mean’, the court
continued, ‘that there need be no connection between the “design” and the “end”
sought to be achieved. The requirement that measures be justifiable in an open and
democratic society based on freedom and equality means that there must be rational
1
See the brief overview of the contending positions by GE Devenish A Commentary on the South African Bill
of Rights (1999) 301–303.
2
But see Phumelela Gaming and Leisure Ltd v Gründlingh 2007 (6) SA 350 (CC) [36] which describes the
right as ‘the right to freedom of trade’ and holds that it is ‘consistent with a competitive regime in matters of trade
and the recognition of the protection of competition as being in the public welfare’.
3
In addition to the cases specifically dealt with in this chapter, s 26 of the interim Constitution was
superficially considered in a series of cases dealing with the prohibition and regulation of gambling. These are
dealt with the fourth edition of this book.
4
S v Lawrence 1997 (4) SA 1176 (CC).
5
The Constitutional Court also considered a freedom of religion challenge against the selection of the ‘closed
days’. See the discussion of this aspect of the case in Chapter 15 below.
6
Described as ‘special limitations’ in Lawrence (note 4 above) [29].
7
Ibid [29].
459
connection between means and ends. Otherwise the measure is arbitrary and
arbitrariness is incompatible with such a society’.8
In commenting on the application of the rational connection test, the court pointed to
a distinction between legislative facts and adjudicative facts. Adjudicative facts are
those about the immediate parties to the litigation—who did what, where, when, how,
and with what motive or intent. Courts must reach a definite conclusion on these facts.
Legislative facts are of a more general character concerning the social or economic
milieu which gave rise to the legislation in question.9 As the legislature makes policy
and laws in response to public perceptions, its judgments are political. In respect of such
‘legislative judgments’ the court may only ask whether there is a rational basis for
reaching such a judgment. The economic freedom right is not an invitation to the courts
to make pronouncements on matters of economic policy, whether on the side of
laissez-faire or state interventionism. The rational basis test permits a court to ensure
that when the state uses its powers to regulate or restrict private economic activity it
does not do so arbitrarily, or for no good reason. But the test does not allow a court to
evaluate expert testimony and reach a conclusion that the measure before it is ineffective
or unnecessary or that there are better ways to achieve the purpose.10 Economic
regulation inevitably involves policy choices by the government and the legislature.
Once it is determined that these choices were rationally made, there is no further basis
for judicial intervention:
It is not for the court to disturb political judgments, much less to substitute the opinions of
experts. In a democracy it would be a serious distortion of the political process if appointed
officials (the judges) could veto the policies of elected officials. . . . [To apply a stricter test to
economic regulation would] require Courts to sit in judgment on legislative policies on
economic issues. Courts are ill equipped to do this. 11
The Constitutional Court then applied its two-part test to the provisions of the Liquor
Act. First, it considered whether the measure fell within the listed objectives in s 26(2)
of the interim Constitution. It was accepted that the excessive consumption of alcohol is
socially harmful, and therefore that measures controlling and reducing consumption
were needed.12 The objective of the measure, to improve the quality of life, was
recognised by s 26(2). The second part of the test is to determine whether there is a
rational connection between the measure and its objective. The means employed to
achieve the objective of controlling the consumption of alcohol was the liquor-licensing
system established by the Act and restrictions placed on the holders of licences. Were
the particular restrictions complained of (ie prohibiting Sunday and after-hours trading
and allowing supermarkets to sell only wine) rationally related to the objective of
achieving a better quality of life? Not according to the applicants, who argued that
restrictions on hours of sale did not reduce alcohol-related problems and that an increase
in hours of sale would not lead to an increase in alcohol consumption. The court
disagreed. There was evidence that controlling the availability of alcohol was a
8
Lawrence (note 4 above) [40]–[41].
9
Ibid [42].
10
Ibid [44]. The rational basis test is therefore considerably less exacting than the proportionality test used to
determine the reasonableness and justifiability of a limitation of a right in terms of s 36. See, further, Chapter 7
above.
11
Ibid [42].
12
Lawrence (note 4 above) [54].
460
Freedom of Trade, Occupation and Profession 22.2
recognised means of controlling consumption, and the measure was therefore rational
and not a violation of s 26.13 It was not for the court to question the legislature’s
decision that the restriction on hours of sale was an effective way of achieving the
purpose of controlling consumption once it had been established that there was a
rational basis for the restrictions.14
As regards the prohibition on the sale of alcohol other than wine by supermarkets
and convenience stores, the court held obiter that it was not irrational for the
legislature to prohibit the selling of beer in such outlets in order to facilitate the sale
of wine as part of a policy to encourage the development of the domestic wine
industry.15 Finally, with regard to prohibition of trading in liquor on Sundays, the
court noted that Sunday is the day on which most South Africans do not work and
that restrictions on this day are therefore more likely to restrict consumption.
Lawrence was decided on the basis of an assumption that the right meant that any
restriction on free economic activity had to conform to s 26(2). But this was not the
only possible interpretation of the right. Another way of looking at s 26, according to
the court,
focuses on the meaning of free participation in economic activity and in pursuing a
livelihood. In a modern democratic society a right ‘freely’ to engage in economic activity
and to earn a livelihood does not imply a right to do so without any constraints
whatsoever. . . . On this approach to the interpretation of s 26 the right to engage in
economic activity and to pursue a livelihood anywhere in the national territory would entail
a right to do so freely with others. Implicit in this is that the participation should be in
accordance with law.16
Lawrence therefore left open the question whether the right could be claimed only in
respect of lawful economic activity. In S v Jordan17 the Constitutional Court again
avoided the question, deciding a s 26 challenge against a statutory prohibition of
prostitution and brothel-keeping on the basis of the same assumption it had made in
Lawrence.18 It could be assumed in favour of the applicants that the prohibitions,
impacting as they did on economic freedom, were in breach of s 26. Section 26(2) then
required a rational connection to exist between the legislation and the legislative
purposes permitted by the subsection. The purpose was to control prostitution, a goal
that could be accommodated under s 26(2)’s ‘improvement of the quality of life’ and
‘human development’. The ‘legislative facts’ taken note of by the court were that
prostitution is associated with violence, drug abuse and child trafficking and the
combating of these evils by prohibiting prostitution and brothel-keeping were evidently
measures designed to protect and improve the quality of life.19
13
Ibid [70].
14
Ibid [68].
15
Ibid [72].
16
Ibid [32], [24].
17
S v Jordan 2002 (6) SA 642 (CC).
18
Ibid [23] (Ngcobo J) and [55] (O’Regan J and Sachs J).
19
Ibid [26] (Ngcobo J). O’Regan J and Sachs J reach the same conclusion at [56], citing European authority
(Jany v Staatssecretaris van Justitie [2003] All ER 193 (EC)) on ‘the wide discretion that States have in relation
to prostitution as an economic activity’.
461
22.3 SECTION 22 OF THE 1996 CONSTITUTION
(a) Interpreting s 22
The differences in formulation between s 22 and its predecessor are immediately
evident,20 but it is more difficult to pinpoint the difference in content between the two
provisions. It is probably fair to say, though, that s 22 is a ‘substantially more limited
right’ than s 26 was.21
The new s 22 closely resembles art 12(1) of the German Constitution and was drafted
with the German provision in mind:
All Germans have the right freely to choose their occupation or profession, their place of
work, and their place of training. The practice of trades, occupations and professions may be
regulated by or pursuant to a law.
Because of the similarities between the two provisions, German jurisprudence dealing
with the interpretation of art 12(1) has considerable comparative value when
interpreting s 22.22 The leading German decision on art 12(1) is the Pharmacy case of
1958,23 in which the Constitutional Court emphasised the connections between the
guarantee and the value of individual autonomy: work, according to the court, ‘shapes
and completes the individual over a lifetime of devoted activity . . . it is the foundation
of a person’s existence’.24 The court held that the provision allows the legislature to
regulate both the choice and the practice of an occupation or profession. However,
different degrees of constitutional scrutiny apply to each: if the legislature seeks to
regulate choice it is subject to greater constraints than if it seeks to regulate the practice
of a trade, occupation or profession. As for the latter, the practice of a trade, occupation
or profession can be ‘restricted by reasonable regulations predicated on considerations
of the common good’. As for the freedom to choose a trade, occupation or profession,
this ‘may be restricted only insofar as an especially important public interest
compellingly requires . . . [and] only to the extent that protection cannot be
accomplished by a lesser restriction on freedom of choice’.25
20
See South African Post Offıce Ltd v Van Rensburg 1998 (1) SA 796 (E), 805 (‘It should be noted at once that
s 26 has both a different title and materially different wording [to s 22]. . . . I believe that it cannot be doubted,
however, that s 22 is the direct successor to s 26’. See also City of Cape Town v Ad Outpost 2000 (2) SA 733 (C),
747A.
21
D Davis ‘Freedom of Trade, Occupation and Profession’ in Woolman, Bishop & Brickhill (eds)
Constitutional Law of South Africa 54–1.
22
See however Ad Outpost (note 20 above) 746I (warning against an uncritical employment of German
jurisprudence to interpret s 22). There is also a comparable provision in the Japanese Constitution: art 22 which
provides, inter alia, that every person shall have freedom to choose his or her occupation to the extent that it does
not interfere with the public welfare. See Davis (note 21 above) 54–5 to 54–7. See also clauses 9(1)(g) and 19(6)
of the Indian Constitution, discussed by R Lagrange ‘Economic Activity Rights’ in H Cheadle et al (eds) South
African Constitutional Law: The Bill of Rights (2002) 340, 342. In addition to these jurisdictions, T Daintith ‘The
Constitutional Protection of Economic Rights’ (2004) 2 Int J of Constitutional Law 56 has identified
constitutional guarantees of ‘freedom of enterprise’ of one sort or another in Spain, Italy, France, Slovenia,
Lithuania and Hungary.
23
7 BVerfGE 377 (1958).
24
Ibid. Translation by D Currie The Constitution of the Federal Republic of Germany (1994) 299.
25
Ibid (trans Currie (note 24 above) 300). The decision concerned laws restricting the issue of licences to
operate pharmacies on conditions of economic viability and economic harm to nearby competitors. Since this
restricted the choice of a profession a compelling public interest was required to justify the measure. The interests
protected by the measure were not sufficiently public-minded to satisfy this test: the law, the court held, was
intended to protect existing pharmacists from competition, rather than protect the public health.
462
For reasons that will be more fully developed further below, some aspects of the
‘graduated’ approach of the German Constitutional Court are likely to be followed in
the interpretation of South Africa’s s 22.26 The two-part structure of s 22 requires a
distinction to be made between regulation impacting on an individual’s choice of a
trade, occupation or profession on the one hand, and regulation of the practice of a
trade, occupation or profession on the other. Freedom to choose an occupation
cannot be restricted by law unless the restriction is justifiable in terms of the
limitation clause. Regulation of the practice of a trade, occupation or profession is
subject to a less stringent standard of justification. Practice can be regulated by law
provided the regulation is rational.27
At the same time, it must be noted that the distinction between choice and
practice is often fuzzy. For example, particularly stringent regulation of the practice
of a profession may have the effect of discouraging people from choosing to pursue
that profession in the first place.28 For this reason, the German Constitutional Court’s
‘graduated’ approach basically holds that ‘choice’ and ‘practice’ constitute ‘poles of
a continuum’.29 Rather than attempt to distinguish regulations inhibiting choice from
those regulating practice, the German Courts have held that the more stringent and
invasive a regulation of an occupation is, the stricter are the requirements for
justifying the regulation.30
The two aspects of s 22 are considered in detail further below. However, a preliminary
difficulty must be considered first. Unlike s 26 of the interim Constitution, which applied
to a universal class of beneficiaries, the benefits of the right in s 22 are restricted to
‘citizens’. We consider the implications of this restriction immediately below.
(b) Beneficiaries of s 22: ‘citizens’

Section 22 is one of a few provisions in the 1996 Bill of Rights that expressly restricts
the class of right-holders to South African citizens.31 This raises the question whether
26
But perhaps not the entire apparatus of the ‘Dreistufentheorie’, the term describing the Pharmacy decision’s
three varying degrees of strictness of judicial review depending on the severity of the restriction of occupational
freedom. The strictest scrutiny is reserved for ‘objective’ restrictions on the choice of occupation unrelated to
individual ability or effort (eg quotas for entry into a particular profession). An intermediate level of scrutiny is
imposed on ‘subjective’ restrictions on choice (eg educational requirements). Relatively light scrutiny applies to
restrictions on the practice of a profession. See Currie (note 24 above) 300–301.
27
Rationality is the minimum standard of legality for all legal regulation: Pharmaceutical Manufacturers
Association of SA: In re Ex parte President of the Republic of South Africa 2000 (2) SA 674 (CC) [90]. Lagrange
(note 22 above) 342 proposes a similar interpretation, but a slightly different methodology of enquiry: ‘scrutinise
the particular restrictive provision to determine if there is a rational basis for its regulatory features. If there is,
and it has no demonstrable direct or indirect impact on the effective choice of economic activity, that should be
the end of the enquiry. If there is a rational basis for the restriction but it also restricts the effective choice of
participation in an economic occupation, the provision’s legitimate regulatory characteristics will not end the
debate. The curtailment of the right of choice should still be subject to all the requirements of s 36’.
28
Practice regulations such as legal requirements that graduates perform lengthy periods of community
service before they may enter the profession arguably also inhibit the freedom of choice to pursue that profession.
29
Pharmacy decision (note 23 above) 400–403.
30
See Ex parte Ndabangaye 2004 (4) BCLR 378 (C) [20] (second sentence of s 22 usually requires a rational
relationship between the regulation and its purpose but, depending on the seriousness of the consequences of the
regulation, may require greater weight to be given to the importance of the purpose and the employment of less
restrictive alternatives).
31
In the Second Certification case, the Constitutional Court considered the argument that the confinement of
the right to citizens failed to comply with the requirement that the Constitution accord this “universally accepted
fundamental right” (the language of CP II) to everyone. The argument was rejected. The right of occupational
choice could not be considered a universally accepted fundamental right (interpreted as ‘those rights that have
463
juristic persons can claim the freedom guaranteed by s 22. Section 8(4) provides that
juristic persons are ‘entitled to the rights in the Bill of Rights to the extent required by
the nature of the rights and the nature of that juristic person’.32 Since the ‘nature’ of
occupational freedom does not prevent it from benefiting juristic persons they should, in
principle, be able to rely on the protection of s 22.33 However, this will only be possible
if they can be considered to be citizens.
If ‘citizen’ is to be interpreted as defined by the South African Citizenship Act 88 of
1995, then it applies to natural persons only.34 But this is not the only conceivable or
authoritative interpretation of the term. If the right is extended to juristic persons a court
may regard juristic persons incorporated in South Africa as citizens.35 Or, it may
disregard the corporate veil and look at the members who control the company. The
courts have done this to determine, for example, the residence or domicile of a
company36 and whether a company was of an enemy character.37
Even on an interpretation that restricts the s 22 right to citizens who are human
beings, companies or juristic persons would still be entitled to rely on the right where
they have a sufficient interest in doing so. As has been explained above,38 once an
applicant has sufficient interest in the outcome of constitutional litigation, the enquiry is
objective: it is sufficient to show that a right in the Bill of Rights has been violated by a
law or conduct and it is not necessary to show that the rights of the applicant have been
violated. This reasoning ought to permit a juristic person to invoke the rights of a natural
citizen to attack laws or conduct that violate occupational freedom.39
(c) Choice of a trade, occupation or profession

The right ‘freely to engage in economic activity and to pursue a livelihood anywhere in
the national territory’ in s 26 of the interim Constitution has been replaced with the right
gained a wide measure of international acceptance as fundamental human rights’. Moreover, ‘other
acknowledged and exemplary constitutional democracies’ that do recognise the right (notably India, Ireland, Italy
and Germany) extend it to citizens only. Certification of the Amended Text of the Constitution of the Republic of
South Africa, 1996 1997 (2) SA 97 (CC) [17]–[21].
32
See, further, Chapter 3 above.
33
Because juristic persons are capable of choosing and practising a trade, occupation or profession, it follows
that the nature of the right protects the activities of juristic persons. Compare the Canadian case of Black v Law
Society of Alberta [1989] 1 SCR 591, in which a regulation forbidding law firms to open branches in other
provinces was declared to be a violation of the right to gain a livelihood.
34
JR 1013 Investments (note 3 above) (textual change from ‘person’ in s 26 to ‘citizen’ in s 22 shows an
intention to restrict application of the right to human beings); Ad Outpost (note 20 above) 747F (s 22 only
protects individual citizens as opposed to juristic bodies, ensuring that each citizen will have the right to choose
how to employ his or her labour without irrational government restriction; right should not be extended to the
regulation of economic intercourse as undertaken by enterprises owned by juristic persons which might
otherwise fall within the description of economic activity); First National Bank of SA Ltd t/a Wesbank v
Commissioner for the South African Revenue Service 2001 (3) SA 310 (C) (a corporation is not a citizen).
35
Foreign corporations would additionally be protected against discriminatory treatment by s 9 of the
Constitution (the right to equality) and international law. International trade and investment treaties often confer
greater protection for the freedom of economic activity than s 22 does.
36
Beckett (TW) & Co Ltd v H Kroomer Ltd 1912 AD 324, 334.
37
Daimler Co Ltd v Continental Tyre and Rubber Co (Great Britain) Ltd [1916] 2 AC 307; see however
Dadoo Ltd v Krugersdorp Municipal Council 1920 AD 530.
38
Chapter 4 above.
39
The same goes for non-citizens. Though they may rely on an alleged violation of a citizen’s s 22 right as a
result of the objective approach to constitutional invalidity, this is not to say that the right applies to non-citizens.
Section 22 could not be used, for example, to challenge laws that prohibit the employment of non-citizens. See
Lagrange (note 22 above) 343.
464
of citizens ‘to choose their trade, occupation or profession freely’ in s 22. Individual
occupational freedom is a narrower but at the same time a more precise concept than
freedom of commercial activity. In one sense, all limitations on commercial freedom
impact on occupational freedom in one way or another. Questions of the degree of
impact cannot be avoided here, but with occupational freedom as the focal point, they
are more easily answered. It must be asked whether a legal restriction placed on
commercial activity can realistically be said to impact on occupational freedom. Most
restrictions of commercial freedom will fall well outside the scope of s 22.
Occupational freedom in s 22 is framed in the form of an individual right, but like
most of the rights in the Bill of Rights, it is informed by several underlying values. The
public has an interest in allowing individuals to work for their own living rather than
being supported by public funds. It also has an interest in benefiting from the skills of a
particular individual. Although s 22 does not expressly mention the freedom ‘to pursue a
livelihood’ (a formulation which often appears in international human rights
instruments) this aspect is, by implication, included within the scope of s 22. From the
point of view of the individual, occupational freedom is also a crucial element of
individual autonomy and constitutes a basis for the exercise of other rights and
freedoms. It is therefore more than a right to provide materially for oneself, but is aimed
at enabling individuals to live profitable, dignified and fulfilling lives.40
According to the German Constitutional Court, the occupational freedom right
guarantees the individual more than just the freedom to engage independently in a trade:
To be sure, the basic right aims at the protection of economically meaningful work, but it
views work as a ‘vocation’. Work in this sense is seen in terms of its relationship to the
human personality as a whole. It is a relationship that shapes and completes the individual
over a lifetime of devoted activity; it is the foundation of a person’s existence through which
that person simultaneously contributes to the total social product.41
An occupation may accordingly be defined as an activity through which people seek to
provide for their needs not only in a material sense but also in the more idealistic sense
of pursuing their self-development—the sense in which an occupation can be a
‘vocation’.42 In interpreting the term ‘occupation’, it is therefore immaterial whether a
person makes a profit or derives an income from their activities. Continued, though not
continuous, economic participation in a certain field is required, so a hobby will not be
recognised as an occupation. Also, the German jurisprudence shows that a person has no
right to occupy him or herself with something that is clearly regarded as a crime. In JR
1013 Investments CC v Minister of Safety and Security, the court referred to certain
‘unspoken restrictions, such as the absolute prohibition on unlawful income-producing
activities like drug trafficking, blackmail or child prostitution’.43 Although crime is not
an occupation, the roots of the right in the value of personal fulfilment indicate that an
40
‘Work is part of one’s identity and is constitutive of one’s dignity’: Affordable Medicines Trust v Minister of
Health 2006 (3) SA 247 (CC) [59].
41
Pharmacy decision (note 23 above); Currie (note 24 above) 299.
42
Ibid.
43
Note 34 above, 929A. The Constitutional Court in Lawrence (note 4 above) and Jordan (note 17 above)
avoided the question whether the right in s 26 of the interim Constitution could only be claimed in respect of
lawful economic activity, assuming in favour of the applicant that the lawfulness of an occupation (prostitution,
for example) was immaterial to the exercise of the right.
465
activity should not have to be considered particularly socially useful or worthy before it
will be protected.44
Interference with occupational freedom may take numerous forms. The most
obvious restriction on the right to choose a trade, occupation or profession is denying
groups of people access to a particular trade or reserving particular trades to
particular groups. An example is the apartheid era practice of job reservation in
which certain categories of skilled, technical and professional work was reserved by
statute for whites.45 Apart from access, an individual also has the right to choose to
leave a specific occupation, or to change occupations or workplaces. A regulation
that a person has to remain in the employ of a certain organisation in exchange for
receiving training might therefore interfere with freedom of occupation.46
If the first sentence of s 22 (‘the right to choose . . .’) is read together with the
second (‘the practice . . . may be regulated by law’) it becomes apparent that the
section affords a degree of protection for the freedom to practise a chosen
occupation. It would not make sense to allow people the freedom to choose a trade,
but not allow them to practise it once the choice is made and the necessary training,
preparation and legal requirements have been complied with. As the German
Constitutional Court has emphasised, choice and practice of an occupation ‘constitute
poles of a continuum’. The freedom to be occupationally active and to pursue a
livelihood therefore involves more than the freedom to choose a trade, occupation or
profession.
Consider, for example, the challenge to the constitutionality of the common-law
rule of practice known as the ‘referral rule’ in Society of Advocates of Natal v De
Freitas.47 The rule prevents advocates from taking work ‘off the streets’ without the
intervention of an attorney. The effect of the Right of Appearance in Court Act 62 of
1995 was to afford attorneys the right of appearance in all courts. However, because
of the referral rule, advocates were prevented from accepting work directly from the
public and could only act on instructions from an attorney. The common-law rule
therefore meant that an advocate had to rely on a competitor for work and, according
to the applicant, this violated his or her right to practise a profession. Although there
may be sound reasons for this rule, it would be strange to insist that regulation of the
practice of the profession requires no justification. Without some protection against
arbitrary regulation of the practice of an occupation, the freedom to choose an
occupation would make little sense. Individuals choose an occupation because they
expect to do a certain type of work. If regulation of the practice reaches the point
44
See the Pharmacy decision (note 23 above) (art 12(1) guarantees the right of an individual to take up any
permitted activity as a vocation, even if it does not correspond to a ‘vocational profile’ fixed by tradition or law).
45
For example, the Industrial Conciliation Act 1956 which gave the government the power to reserve certain
types of work for particular racial groups. See Affordable Medicines Trust (note 40 above) [58] (s 22 included in
the Bill of Rights, inter alia, to repudiate a history of job reservation, restrictions on employment imposed by the
pass laws and the exclusion of women from many occupations).
46
65 BVerfGE 203, 207.
47
Society of Advocates of Natal v De Freitas 1997 (4) SA 1134 (N). The challenge was unsuccessful, the High
Court finding an advocate who had acted in contravention of the rule guilty of unprofessional conduct and
suspending him. This holding was confirmed in De Freitas v Society of Advocates of Natal 2001 (3) SA 750
(SCA) (referral rule not contrary to the Constitution). Ex parte Ndabangaye 2004 (4) BCLR 378 (C) overturned,
on the basis of s 22, Ex parte Singer: Law Society Transvaal Intervening 1984 (2) SA 757 (A) which had held
that a person who served articles of clerkship while concurrently registered on the roll of advocates could not be
admitted as an attorney.
466
where they are no longer able to do that work, their initial choice for an occupation
is denied to them with retrospective effect. Choice and practice therefore constitute a
‘continuum’, and s 22 must be interpreted to afford some protection against arbitrary
regulation of an occupation.
Section 26 of the interim Constitution specifically stated that a person had the
freedom of economic activity ‘anywhere in the national territory’. Section 22
contains no equivalent, but there is little doubt that s 22 will be impinged upon if a
person is only allowed to work in a certain area. The right to choose the location of
work forms part of freedom of occupation. The s 21 right to freedom of movement
and residence also lends support to such an interpretation.
As with all the freedom rights, occupational freedom is a negative right in the
sense that it guarantees opportunity, not delivery.48 It does not afford a right to work
claimable from the state or any person. A person has no right that an occupation be
provided for him or her or that an occupation be kept open for him or her. Such a
guarantee would only make sense in a command economy.49
(d) Practice of a trade, occupation or profession

The second sentence of s 22 the ‘practice of a trade, occupation or profession may be
regulated by law’ has replaced s 26(2) of the interim Constitution as the internal
qualifier of the freedom of occupation.50 As set out above, it is arguable that the second
sentence only applies to measures that regulate occupational freedom without denying
choice of or access to an occupation. On this argument, s 22 is a right freely to choose a
trade, occupation or profession. This right to choose an occupation cannot be limited
except by a law of general application that is justifiable in terms of the criteria laid down
in s 36. The second sentence of s 22 then adds a little to the scope of the right by
prohibiting regulation of the practice of an occupation other than by law.
In interpreting the internal qualification, emphasis is placed on the term ‘regulation’,
which refers to the rational ordering or organising of a certain trade, occupation or
profession. This is a general constraint on all legislation, based on the principle of
rationality which, in turn, derives from the rule of law.51 Moreover, when constrained
only by the duty to act rationally, Parliament is not obliged to act reasonably.52 A law
that regulates a trade, occupation or profession may also be challenged if it infringes
another provision of the Bill of Rights.53
A measure which attempts to close down a certain profession or trade cannot qualify
as a regulation, but many measures that restrict access to a profession may qualify on
48
In Directory Advertising Cost Cutters v Minister for Posts, Telecommunications and Broadcasting 1996 (3)
SA 800 (T), 813, it was said that right to freedom of occupation is not a ‘right to be a millionaire’ but the right to
‘strive to be a millionaire’. See, however, the decisions applying art 12(1) in conjunction with the equality
provisions and the Sozialstaat principle of the German Constitution to require state provision of professional
education: 33 BVerfGE 303 (1972) (‘Numerus Clausus’) and other decisions, discussed by Currie (note 24 above)
303–304.
49
84 BVerfGE 133, 146 (Abwicklung von DDR–Einrichtungen); 85 BVerfGE 360, 373 (Akademie-
Auflösung).
50
Removed from s 22 is the phrase ‘measures designed to promote’ in s 26(2) at the Interim Constitution (see
the discussion of this phrase in para 22.2 above). The overlap between the wording of the internal limitation and
general limitations clause has also been removed.
51
Affordable Medicines (note 40 above) [78] and [79].
52
Ibid [85], [86].
53
Ibid [77].
467
this basis. For example, the practice of certain professions (lawyers, doctors) is routinely
regulated in order to protect the interests of the general public.54 In S v Lawrence, the
Constitutional Court made important observations in this regard:
Certain occupations call for particular qualifications prescribed by law and one of the
constraints of the economic sphere is that persons who lack such qualifications may not
engage in such occupations. For instance, nobody is entitled to practise as a doctor or as a
lawyer unless he or she holds the prescribed qualifications, and the right to engage ‘freely’ in
economic activity should not be construed as conferring such a right on unqualified persons;
nor should it be construed as entitling persons to ignore legislation regulating the manner in
which particular activities have to be conducted. . . . 55
The meaning of ‘regulation’ can further be illustrated with reference to South African
Post Offıce Ltd v Van Rensburg.56 In this case, the respondent challenged the Post
Office’s exclusive right to provide a postal service in the Republic, conferred by s 7 of
the Post Office Act 44 of 1958. The court accepted that s 7 prima facie violated the right
to freedom of occupation, but then concluded that the section merely regulated the
‘practice of the trade of running a postal service by law’ and therefore did not offend
s 22. Arguably, the court was perhaps too eager to accept that the measure was a
regulation in the true sense. The court observed two aspects that showed that s 22 was
not impinged upon at all. Section 90A of the Post Office Act provided that the Minister
may, in the public interest, authorise a person other than the Post Office to conduct a
postal service, after consulting with the Post Office. Further, it was noted that it was
possible to run a very extensive postal service by simply carrying letters in envelopes
exceeding the size of the Post Office letters. This takes too broad a view of the term
‘regulation’. Protecting the Post Office against competition cannot qualify as regulation.
Section 22 prohibits the state from regulating the practice of an occupation, trade or
profession other than by law. To qualify as a ‘law’, a regulating measure must be both
formally a law (ie it must be valid legislation, common law or customary law), it must
be accessible and precise57 and must comply with the substantive requirements imposed
by the rule of law and the principle of legality. A law regulating the practice of a trade,
occupation or profession, like all laws, would have to be rational, ie rationally related to
a legitimate objective. Though, unlike s 26(2) of the interim Constitution, s 22 does not
provide a list of legitimate objectives in the field of economic regulation, the purpose of
the law must be important and it must have a bearing on the state’s responsibility to
promote economic and social welfare. This means that the Constitutional Court’s
decision in S v Lawrence remains of considerable assistance in the determination of the
scope of s 22. Moreover, as Lawrence also illustrates, courts are like to continue to shy
away from interfering with the economic policy decisions of the legislature.
54
Various statutes regulate professions in South Africa, such as the Auditing Profession Act 26 of 2005, the
Admission of Advocates Act 74 of 1964, the Attorneys Act 53 of 1979, the Health Professions Act 56 of 1974 and
the Engineering Profession Act 46 of 2000. See Law Society of the Transvaal v Machaka 1998 (4) SA 413 (T)
(s 22 does not deprive courts of the power to strike attorneys from the roll; the right to choose one’s profession
did not measures aimed at ensuring competence and integrity of professional conduct).
55
Lawrence (note 4 above) [33] and [34].
56
Note 20 above.
57
Sunday Times v United Kingdom 2 EHRR 245 (1979) (the phrase ‘required by law’ in the European
Convention on Human Rights requires law to be accessible and formulated with sufficient precision to enable the
citizen to regulate his or her conduct).
468
Freedom of Trade, Occupation and Profession 22.3–22.4
Janse van Rensburg NO v Minister van Handel en Nywerheid58 is an example of

the application of these requirements to provisions of the Harmful Business Practices
Act 71 of 1988. The Act permitted the Minister to prohibit ‘harmful business
practices’, defined as any business practice that ‘directly or indirectly, has or is likely
to have the effect of . . . harming the relations between business and consumers . . .
unreasonably prejudicing any consumer; or . . . deceiving any consumer’. The
applicants challenged the Act as a violation of the occupational freedom right.
According to the court, the purpose of the Act was acceptable: ‘it is a
praiseworthy governmental objective to protect consumers from exploitation’.59 The
definition of ‘harmful business practice’ was not vague. The Act permitted a
committee to propose guidelines for definition of the term which would be published
by the Minister. This helped to concretise the abstract concept of a harmful business
practice. The power to prohibit as such was therefore not inconsistent with s 22.
However, s 8(5) of the Act violated s 22 of the Constitution in that it conferred an
absolute discretion on the Minister to prevent the continuation of business practices
which were the subject of an investigation when the investigation was not yet
completed and to attach and freeze assets.60
22.4 APPLICATION OF S 22 TO CONTRACTUAL RESTRAINTS OF TRADE

Though principally a constraint on state regulation of the economic sphere, s 22 and its
predecessor have figured in a number of cases concerning contracts in restraint of trade.
A restraint of trade contract limits an individual’s freedom to work or to trade. At
common law, such a contract is enforceable unless it is unreasonable. An unreasonable
restraint is one that attempts to protect more than the legitimate interests of the person in
whose favour the contract has been concluded. There is an onus on the party wishing to
escape the restraint clause to show that the clause is unreasonable and therefore contrary
to public policy.61
The common law on restraints of trade was challenged as an infringement of s 26 of
the interim Constitution in Waltons Stationery Co (Edms) Bpk v Fourie.62 A contract of
employment provided that, in the event of the employee leaving the applicant’s employ,
she would not be employed directly or indirectly in marketing the same type of products
as the applicant traded in, for a period of six months and within a radius of 80 km from
the office at which she had worked. The employee contended that the restraint was an
infringement of her freedom of economic activity. Edeling J held, on an indirect
application of the interim Constitution, that the economic freedom right was primarily
intended to ensure that the common-law principle of commercial freedom was not
undermined by legislation, regulations and other statutory measures. Unlike much
economic regulation, he continued, the common law has always recognised the principle
of freedom of trade. In restraint of trade cases, the common-law principles of freedom of
58
Janse van Rensburg NO v Minister van Handel en Nywerheid 1999 (2) BCLR 204 (T).
59
Ibid 212A–B.
60
The Constitutional Court confirmed the declaration of invalidity on the different basis of inconsistency with
s 33 of the Constitution, which requires guidelines to be provided where wide discretionary powers are conferred
upon a functionary: Janse van Rensburg v Minister of Trade and Industry 2001 (1) SA 29 (CC).
61
Magna Alloys and Research (SA) (Pty) Ltd v Ellis 1984 (4) SA 874 (A); Basson v Chilwan 1993 (3) SA 742
(A).
62
Waltons Stationery Co (Edms) Bpk v Fourie 1994 (4) SA 507 (O).
469
trade and of sanctity of contract have to be balanced having regard to public policy, as
was done in Magna Alloys and Research (SA) (Pty) Ltd v Ellis.63 Hence, according to
the court, s 26 had no effect on the common law governing restraints of trade as it
accorded with the spirit, purport and objects of the interim Constitution.64 This
reasoning has been endorsed by the Supreme Court of Appeal, which has held that the
case-by-case balancing process between private and public interests undertaken in the
Magna Alloys analysis complies with the limitation analysis required for the assessment
of the justifiability of the limitation of a right.65 It also comports with the approach of the
Constitutional Court to the enforceability of contractual obligations. Such obligations
are enforceable unless they are contrary to public policy, which is to be discerned from
the values embodied in the Constitution and in particular in the Bill of Rights. Where the
enforcement of a contractual provision would be unreasonable and unfair in the light of
those fundamental values it will be contrary to public policy to enforce the contract or
the contractual term in question.66 This analysis must inform the interpretation of a
restraint of trade term and the determination of the reasonableness of enforcing it in the
circumstances prevailing at the time that enforcement is sought.67
On the narrower issue of the onus to prove the unreasonableness of a restraint
(placed, since Magna Alloys, on the contractant seeking to escape the restraint), the
courts declined to hold that s 26IC required any change to the existing position.68 The
common law had been protecting commercial freedom for decades and there was no
reason for a change in approach merely because the interim Constitution now
entrenched the same protection.69
Section 22 of the 1996 Bill of Rights arguably requires review of the common law in
relation to the question of onus. The principles of restraint of trade law are based on
public policy. Public policy is not constant and unchanging and must be considered
against the background of the Constitution. The 1996 Constitution brought about an
important change in the focus of the freedom of trade right. The broad right to
commercial freedom entrenched in s 26 of the interim Constitution protected both
freedom of contract and freedom of trade. But the more narrow freedom of occupational
choice and practice guaranteed by s 22 seems to favour freedom of trade. In Magna
Alloys, the Appellate Division held that the onus of proving the unreasonableness of a
63
Note 61 above. See T Woker ‘Restraints of Trade and the New Constitution’ (1994) 6 SA Mercantile Law
Journal 329, 335; I Rautenbach & M Reinecke ‘Kontrakte ter beperking van handelsvryheid en die grondwetlike
reg om vrylik aan die ekonomiese verkeer deel te neem’ 1995 TSAR 551.
64
Similar challenges were also unsuccessful in Kotze & Genis (Edms) Bpk v Potgieter 1995 (3) SA 783 (C),
AK Entertainment CC v Minister of Safety and Security 1995 (1) SA 783 (C), Knox D’Arcy Ltd v Shaw 1996 (2)
SA 651 (W), 171 (‘The Constitution does not take such a meddlesome interest in the private affairs of individuals
that it would seek, as a matter of policy, to protect them against their own foolhardy or rash decisions. As long as
there is no overriding principle of public policy which is violated thereby, the freedom of the individual
comprehends the freedom to pursue, as he chooses, his benefit or his disadvantage.’).
65
Reddy v Siemens Telecommunications (Pty) Ltd 2007 (2) SA 486 (SCA) [17].
66
67
Bredenkamp v Standard Bank of South Africa Ltd 2010 (4) SA 468 (SCA) [45].
68
Rautenbach & Reinecke (note 63 above) 559–561.
69
See also Woker (note 63 above) 335.
470
restraint was on the party who wished to escape the restraint. The reason, according to
the court, was that the common law favoured sanctity of contract over freedom of trade.
The effect of the clear preference for freedom of trade in the 1996 Constitution is that
the issue of the onus must therefore be reconsidered.70
70
Canon KwaZulu-Natal (Pty) Ltd t/a Canon Offıce Automation v Booth 2005 (3) SA 205 (N); Advtech
Resourcing (Pty) Ltd v Kuhn 2008 (2) SA 375 (C) [28] (employer must justify a limitation upon the right to work,
given the importance placed on the dignity of work and the concomitant limitation or eradication of that right
when a restraint operates). But see Den Braven SA (Pty) Ltd v Pillay 2008 (6) SA 229 (D) [29]–[30] (s 22 has no
direct application to restraints of trade contracts and therefore cannot influence the distribution of the onus; court
declining to follow Canon and Advtech).
471
Chapter Twenty-three
Labour Relations
by John Grogan*
23.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 473
23.2 The current labour dispute resolution structure . . . . . . . . . . . . . . . . . . . . . . . 473
23.3 The scope of section 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 474
23.4 The statutory right to fair labour practices . . . . . . . . . . . . . . . . . . . . . . . . . . . . 476
(a) The influence of the ‘unfair labour practice’ jurisdiction under the
1956 LRA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 476
(b) Codification of the concept of an ‘unfair labour practice’ . . . . . . . . 477
(c) Practices falling outside the definition. . . . . . . . . . . . . . . . . . . . . . . . . . . . 478
23.5 Labour law and the right to just administrative action . . . . . . . . . . . . . . . . 479
(a) Unfair labour practices in the public sector. . . . . . . . . . . . . . . . . . . . . . . 479
(b) Review of statutory arbitration by the CCMA. . . . . . . . . . . . . . . . . . . . 479
23.6 The common law and fairness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 480
23.7 The right to join unions and employers’ organisations. . . . . . . . . . . . . . . . 482
23.8 Trade union rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 486
23.9 The right to bargain collectively . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 488
23.10 The right to strike . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 495
23.11 Discrimination in the workplace . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 497
23.12 Affirmative action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 512
Labour relations
23. (1) Everyone has the right to fair labour practices:
(2) Every worker has the right—
(a) to form and join a trade union;
(b) to participate in the activities and programmes of a trade union;
(c) to strike.
(3) Every employer has the right—
(a) to form an join an employers’ organisation;
(b) to participate in the activities and programmes of an employers’
organisation.
(4) Every trade union and every employers’ organisation has the
right—
* Advocate of the High Court of South Africa.
472
Labour Relations 23.1–23.2
(a) to determine its own activities administration, programmes and

activities;
(b) to organise;
(c) to form and join a federation.
(5) Every trade union, employers’ organisation and employer has the
right to engage in collective bargaining. National legislation may be
enacted to regulate collective bargaining. To the extent that the
legislation may limit a right in this Chapter, the limitation must comply
with s 36(1).
(6) National legislation may recognise union security arrangements
contained in collective agreements. To the extent that the legislation
may limit a right in this Chapter, the limitation must comply with
s 36(1).
23.1 INTRODUCTION
The specific entrenchment of labour rights is a unique feature of the South African
Constitution. Given the significant role played by black trade unions in the downfall of
apartheid, it is hardly surprising that the drafters of the interim and 1996 Constitutions
gave considerable attention to entrenching union and employment rights. Section 23 of
the 1996 Constitution sets out these rights in skeletal outline, but is buttressed by a
number of national statutes designed to give effect to those rights. As the law now
stands, if an employee’s rights can be enforced under one or other of these statutes, that
employee cannot rely directly on the Constitution.1
A complete description of current labour legislation, and how it has been interpreted
and applied by courts and tribunals with jurisdiction to do so, is beyond the scope of this
work. This chapter deals rather with the residual legal effects of s 23. Of these, the main
consequence of the entrenchment of employment and labour rights in the Bill of Rights
is that the statutes must be interpreted in accordance with the Constitution—that is, the
Act must be interpreted to give effect to the entrenched rights, rather than to limit them.2
While the legislature has established specialist courts and tribunals to perform the task
of interpreting and applying labour legislation, the High Court, the Supreme Court of
Appeal, and ultimately the Constitutional Court have and continue to play an important
role in that regard.
23.2 THE CURRENT LABOUR DISPUTE RESOLUTION STRUCTURE

The principal labour statutes are the Labour Relations Act 66 of 1995 (LRA), the Basic
Conditions of Employment Act 75 of 1997 (BCEA), and the Employment Equity Act 55
of 1998 (EEA).
The first of these statutes, the LRA, established specialised tribunals to monitor and
implement the legislation. These are the Labour Court and Labour Appeal Court (LAC),
the Commission for Conciliation, Mediation and Arbitration (CCMA), and bargaining
1
Fredericks v MEC for Education & Training, Eastern Cape (2002) 23 ILJ 81 (CC).
2
Section 3(b) of the LRA expressly states that its provisions must be interpreted in compliance with the
Constitution s 3(b).
473
councils. The LRA expressly stipulates which disputes are to be referred to these
tribunals, and deprives each of jurisdiction to deal with disputes reserved for other
tribunals. This was apparently aimed at depriving the civil courts of jurisdiction to deal
with disputes arising from the Acts.
But the jurisdictional issue began to burden court rolls from soon after the
commencement of the LRA. The first issue was whether, and if so, to what extent, the
High Court retained jurisdiction to deal with ‘labour matters’, such as public sector
dismissals, suspensions, and the like, and with alleged breaches of employment
contracts. The second issue was whether decisions of the labour courts and other
tribunals were subject to appeal to the Supreme Court of Appeal (SCA) and, ultimately,
to the Constitutional Court.
Much ink has been spilled on these issues. But the position now is that all disputes for
which the LRA and EEA provide remedies, must be referred to the appropriate labour
tribunal, while the civil courts retain concurrent jurisdiction with the Labour Court to
deal with actions for breaches of employment contracts. Appeals lie from either the
Labour Court or the Labour Appeal Court to the Supreme Court of Appeal; when
entertaining such matters the SCA will apply the applicable legislation.3 Those
dissatisfied with decisions of either the LAC or the SCA may appeal finally to the
Constitutional Court, provided that that court is satisfied that the appeal raises a
‘constitutional matter’.4
23.3 THE SCOPE OF SECTION 23

Section 23 confers a number of independent, if related rights: to ‘fair labour practices’;
to form and join trade unions and participate in their activities and programmes; to
strike; to form, join and participate in the programmes and activities of employers’
organisations; to organise; to engage in collective bargaining. The bearers of these rights
are, in the case of fair labour practices, ‘everyone’ and, in the case of the right to found,
form and join unions, ‘every worker’.5 Trade unions and employers’ organisations,
respectively, are entitled to determine their own programmes and activities, to organise,
to join federations and, with the addition of employers, to engage in collective
bargaining.
Though wide, the phrase ‘worker’ is clearly narrower than ‘everyone’. But the latter
term must be restricted in some way if people who clearly fall outside an employment
relationship are to be precluded from claiming ‘fair labour practices’, unless the right
itself indicates by necessary implication that it is restricted to those who ‘labour’.6
The choice of the term ‘everyone’ appears to indicate that the drafters intended the
right to fair labour practices to extend beyond the traditional (or common law) idea of
‘employee’, that is, a party to a contract which entails the provision of personal services
3
The Supreme Court ruled that it has jurisdiction to entertain appeals from the LAC or even directly from the
Labour Court in National Union of Metalworkers of SA v Fry’s Metals (Pty) Ltd (2005) 26 ILJ 689 (SCA). This
issue has not been considered by the Constitutional Court.
4
The court has held in most cases that the proper interpretation of labour legislation involves a constitutional
matter.
5
On the bearers of rights in the Bill of Rights generally, see Chapter 3 above.
6
As Halton Cheadle has argued: ‘Labour practices are the practices which arise from the relationship between
workers, employers and their respective organisations, accordingly the right to fair labour practices ought not to
be read as extending the class of persons beyond those classes envisaged by the section as a whole.’
474
Labour Relations 23.3
in return for remuneration. The LRA, which embodies the statutory right to fair labour
practices, defines ‘employee’ in terms wide enough to embrace relationships of a less
conventional type, and excludes only ‘independent contractors’ from the scope of the Act.
Only a small category of employees are expressly excluded from the scope of the
LRA, namely members of the National Intelligence Agency and Secret Service, the
National Academy of Intelligence and the SA National Defence Force (SANDF).7 For
the rest, all employees, irrespective of status, in both the public and private sectors,
enjoy all the rights conferred by the LRA. The only general exclusion is of ‘independent
contractors’.
While the courts, arbitrators and academics have long sought a formula for
distinguishing employees from independent contractors, that quest has been in vain. The
authorities reflect a clear trend towards interpreting the definition as widely as its literal
meaning permits, to include even persons who render service to others through the
medium of companies or close corporations,8 parties to unlawful contracts,9 and those
who have concluded contracts which specifically record that the persons rendering
service are ‘independent contractors’.10 At a minimum, however, to qualify as a
beneficiary of the right to fair labour practices, a person must be in an employment
relationship. This means that, at the very least, the person must render service to another
in pursuit of some identifiable productive enterprise or the offering of a service, and
must be largely dependent on the person receiving the services for his or her financial
survival.11
Most persons who claim the right to fair labour practices fall within this broad
category. However, the Constitutional Court has held that employees, however widely
defined, may not rely directly on s 23 if they can claim relief under the LRA. This means
that those falling within the definition of ‘employee’ in that Act must pursue actions in
terms of s 191(5)(a) of the LRA, and refer unfair labour practice disputes for arbitration
by either the CCMA or a bargaining council, as the case may be. The Constitutional
Court’s ruling also means that the only persons who may rely directly on s 23 are those
excluded from the LRA, or if the LRA does not provide for the unfair labour practice
complained of.12 Such actions must be pursued in the civil courts, because the Labour
Court and statutory arbitrators have jurisdiction only over disputes between employers
and employees, as defined. It is conceivable that the courts could, under the rubric of
‘everybody’, extend the right to fair labour practices to a wider class of persons than
those covered by labour legislation. One class of persons who might rely directly on s 23
is applicants for employment, who do not qualify for any remedy under the LRA, save
discrimination on the grounds of trade union membership, and who may claim under the
EEA for being unfairly overlooked only if they can prove to have been discriminated
against on grounds prohibited by that Act, or a ground akin thereto.
Another category of persons who may rely directly on s 23 are those expressly
excluded from the labour statutes. These include members of the National Intelligence
Service and members of the SANDF. In South African National Defence Union v
7
Section 2.
8
Denel (Pty) Ltd v Gerber (2005) 6 ILJ 1256 (LAC).
9
‘Kylie’ v Commission for Conciliation, Mediation and Arbitration (2010) 31 ILJ 1600 (LC).
10
Building Bargaining Council (Southern & Eastern Cape) v Melmons Cabinets CC (2001) 22 ILJ 120 (LC).
11
The LRA contains a ‘presumption as to who is an employee’, applicable to employees earning below a
specified amount, which reflects this approach: see s 200A.
12
For example, the unfair labour practice definition makes no mention of unfair transfers.
475
Minister of Defence the issue of whether soldiers and sailors are ‘workers’ for purposes
of s 23(2) was considered by the Constitutional Court, which has held that they are.13
Why the drafters chose the word ‘worker’ rather than ‘everyone’ in s 23(2) is
anybody’s guess. But the most sensible seems to be that they intended union
membership to be reserved for persons who are actually working, as opposed to those
who wish to work. Curiously, the legislature had not followed this nomenclature. The
LRA defines trade union as ‘an association of employees whose principal purpose is to
regulate relations between employees and employers, including any employers’
organisations’. However, the LRA does not prohibit the formation of trade unions or
associations by persons falling outside the definition of ‘employee’; it merely denies
them entitlement to register and hence to the rights and obligations conferred and
imposed on registered unions. A ‘union’ of independent contractors therefore remains a
possibility, and such an organisation would have the right to withdraw labour, but its
members would not be protected against retaliatory action by their principals, including
cancellation of their contracts.
23.4 THE STATUTORY RIGHT TO FAIR LABOUR PRACTICES
(a) The influence of the ‘unfair labour practice’ jurisdiction under the
1956 LRA
The right to fair labour practices was developed by the erstwhile industrial court,
established in 1979 after the Wiehahn Commission recommended changes to the then
labour dispensation. Under the Labour Relations Act 28 of 1956, the content of that term
was left to the industrial court to determine on a case by case basis. That court, and the
Labour Appeal Court established under that Act, developed a jurisprudence which
established the boundaries between fair and acceptable labour practices, and those
which were not. The effect was to ‘judicialise’ the resolution of labour disputes at a
stage when labour relations were moving into an increasingly bellicose and politicised
phase.
Although the performance of the industrial court has been widely criticised for being
overly technical and complicated, the drafters of the 1995 LRA took their cue from
leading decisions of that court which had set new principles for both individual and
collective employment relations. In so doing, the industrial court presaged a
revolutionary trend in South African jurisprudence, in which fairness, or equity, has
come to play an increasingly significant role. In applying the open-ended concept of
‘unfair labour practice’, the industrial court ruled that fairness and lawfulness were not
necessarily equivalent concepts—conduct which was perfectly lawful could be, and
was, pronounced unfair and, conversely, fair conduct could pass muster even if it was
13
In South African National Defence Union v Minister of Defence 1994 (4) 469 (CC) [24]. O’Regan J wrote:
‘Clearly, members of armed force render service for which they receive a range of benefits. On the other hand
enrolment in the permanent force imposes upon them an obligation to comply with the rules of the Military
Disciplinary Code. A breach of that obligation of compliance constitutes a criminal offence. In many respects,
therefore, the relationship between members of the permanent force and the defence force is akin to an
employment relationship. In relation to punishment for misconduct, at least, however, it is not. . . . [I]t would
seem to follow that when s 23(2) speaks of ‘‘worker’’, it should be interpreted to include members of the armed
forces, even though the relationship they have with the defence force is unusual and not identical to an ordinary
employment relationship. The peculiar nature of the defence force may well mean that some of the rights
conferred upon ‘‘workers’’ and ‘‘employers’’ as well as ‘‘trade unions’’ and ‘‘employers’ organisations’’ by s 23
may be justifiably limited.’
476
unlawful. There was no limit under the 1956 LRA to the range of workplace conduct the
industrial court could pronounce unfair. Dismissals, collective bargaining issues,
workplace discrimination and all manner of unfair conduct were declared unfair labour
practices.
A major limitation of the 1956 LRA was that its scope did not extend to persons
employed by the state. But public servants were not without relief if they had been
dismissed or been subjected to unfair labour practices. They could, and often did,
approach the civil courts with claims grounded on administrative law. The result was the
development of two streams of jurisprudence, one for employees in the private sector,
the other for those in the public sector. But, in the end, the two streams tended to
converge in significant ways, or at least to cross-fertilise.
(b) Codification of the concept of an ‘unfair labour practice’

The drafters of the 1995 LRA decided to extend the scope of the 1956 LRA by including
all employees, with the exceptions mentioned above,14 but to limit the scope of the term
‘unfair labour practice’ by codifying that concept. The current Act differentiates
between dismissals and unfair labour practices, and guarantees other employee rights,
such as their entitlement to join and participate in union activities and to exercise
statutory rights. The right not to be unfairly dismissed or subject to unfair labour
practices is specifically guaranteed.15 Employees may be dismissed only for ‘a fair
reason and in accordance with a fair procedure’, and the concepts of dismissal and of
‘unfair labour practice’ are specifically defined.16 Dismissals include:
• the termination of a contract with or without notice;
• the failure by an employer to renew a fixed-term contract of employment on the
same or similar terms;
• the refusal to allow an employee to resume work after taking maternity leave;
• the refusal by an employer to re-employ one or more of a group of employees who
had been dismissed for the same reason, when the employ has offered to re-employ
the others;
• the termination of contract of employment by the employee because the employer
had made continued employment intolerable for the employee; and
• the termination of a contract of employment as a result of a transfer of the business
from one employer to another.
Unfair labour practices are limited to specific ‘acts or omissions between employer and
employee’ involving:
• unfair conduct by the employer relating to the promotion, demotion, probation or
training of an employee or relating to the provision of benefits;
• the unfair suspension of an employee or any other action short of dismissal;
• failure or refusal to reinstate or re-employ a former employee in terms of an
agreement; and
• any ‘occupational detriment’, other than dismissal, on account of the employee
having made a disclosure protected by the Protected Disclosures Act 26 of 2000.
14
See para 23.3 above.
15
Section 185.
16
Section 186.
477
Disputes over dismissals and unfair labour practices must be referred to the CCMA or a
bargaining council having jurisdiction for conciliation and, if necessary, statutory
arbitration, but these bodies lack jurisdiction to entertain disputes over conduct falling
outside the statutory definition. This means that employees, as defined, cannot rely on
s 23(1) of the Constitution to enforce their right not to be subject to unfair dismissals or
unfair labour practices of the types listed in the definition.
(c) Practices falling outside the definition

There are some notable omissions from the definition of unfair labour practice. At the
level of the individual employee, two that spring to mind are unfair transfers and
unilateral changes to terms and conditions of employment. The latter can be challenged
under the common law as breaches of contract. The Labour Appeal Court has held that
unfair transfers may be challenged under the LRA if they involve breaches of collective
agreements or regulations governing transfers.17 Unfair labour practices of a collective
nature are also conspicuously absent from the definition. While the industrial court was
prepared to intervene in the collective bargaining arena to interdict bad faith bargaining
or even compel employers to bargain, the current LRA is premised on the idea that
parties must be left free to bargain (or not to bargain) as they choose, and that the
outcome of disputes concerning ‘matters of mutual interest’ (as opposed to disputes of
right) must be left to negotiation and, if necessary, industrial action.
There is no reported case in which employees have successfully pursued unfair labour
practice claims falling within the statutory definition of that term with a direct
constitutional claim. However, the Constitutional Court has recognised that there may
be residual claims which can be pursued in the High Court. Fredericks v MEC for
Education & Training, Eastern Cape18 involved a claim by employees that the
respondent had acted unfairly by not allowing them to retire voluntarily and claim
severance benefits in terms of a collective agreement. This claim clearly fell outside the
statutory definition. But the High Court held that, since it involved the application of a
collective agreement, which the LRA reserves for arbitration, it lacked jurisdiction to
entertain the matter.19 The Constitutional Court disagreed. O’Regan J observed that the
applicants relied, not on s 23, but on their rights to fair administrative justice and
equality. The claim therefore did not arise from an alleged breach of the agreement. It
arose rather from ‘special duties imposed upon the State by the Constitution’. The court
found it ‘quite clear that the overall scheme of the Labour Relations Act does not confer
a general jurisdiction on the Labour Court to deal with all disputes arising from
employment’.20 The matter was remitted to the High Court.
17
Nxele v Chief Deputy Commissioner, Corporate Services, Department of Correctional Services (2008) 29
ILJ 2708 (LAC).
18
See Fredericks (note 1 above).
19
Fredericks v Member of the Executive Council Responsible for Education & Training in the Eastern Cape
Province (2001) 22 ILJ 2603 (E).
20
Fredericks (note 1 above)
478
23.5 LABOUR LAW AND THE RIGHT TO JUST ADMINISTRATIVE ACTION
(a) Unfair labour practices in the public sector

Insofar as Fredericks suggests that public sector employees may pursue claims arising
from their right to fair administrative action against their employers in the civil courts,
that suggestion has been overtaken by events. In the landmark judgment in Chirwa v
Transnet Ltd,21 the Constitutional Court dealt with just such a claim—an employee of a
‘parastatal’ claimed that her right to fair administrative action had been infringed by the
manner in which she was dismissed for alleged poor work performance. The court held
that the dismissal did not constitute administrative action,22 but the exercise of a
contractual power, and that Ms Chirwa could not invoke a remedy under the Promotion
of Administrative Justice Act 3 of 2000 (PAJA). The finding in this regard was
subsequently endorsed by the court in Gcaba v Minister of Safety & Security,23 in which
it was held that the High Court had correctly ruled that it lacked jurisdiction to entertain
a claim based on administrative law by a police officer who had been refused promotion
to the post in which he had been acting.
Chirwa and Gcaba have closed the doors of the High Court to applications by public
servants for review of dismissals and unfair labour practices under either PAJA, the
common law or the Constitution. However, the Labour Court still has power under
s 158(1)(h) of the LRA to ‘review any decision taken or any act performed by the state
in its capacity as employer on any grounds that are permissible in law’. The phrase ‘on
any grounds permissible in law’ probably precludes review by the Labour Court of
dismissals and unfair labour practices because if they do not constitute administrative
action, there can be no basis or review. However, acts falling outside the scope of the
definitions of those terms must still be susceptible to review by either a civil court or the
Labour Court.
(b) Review of statutory arbitration by the CCMA

An issue related to the one discussed in para 23.5(a) above is whether PAJA applies to
reviews by the Labour Court of statutory arbitration under s 145 of the LRA. This
provision replicates the grounds of review set out in the Arbitration Act 42 of 1965. The
intention of the drafters appears to have been to confine reviews to those ‘strict’ grounds
and not the wider list of grounds of review in terms of s 6 of PAJA. Whether this
intention was reflected in s 145 also triggered protracted judicial debate.
Initially, before the promulgation of PAJA, the weight of decisions appeared to
support the view that, since arbitration is compulsory and conducted by a statutory body,
awards of commissioners must be subject to the common law and constitutional
requirement of rationality. The LAC lent powerful (and as it has proved, lasting) support
to this view in Carephone (Pty) Ltd v Marcus NO,24 in which Froneman DJP, as he then
was, held that since the CCMA is a statutory body exercising public power its decisions
and awards are reviewable in terms of ‘justifiability’, the term used as a requirement for
administrative action under the interim Constitution.
21
Chirwa v Transnet Ltd (2008) 29 ILJ 73 (CC).
22
Although the majority found it unnecessary to decide this issue, it indicated that had it done so, it would
have agreed with Ngcobo J’s finding that a dismissal did not constitute administrative action.
23
Gcaba v Minister of Safety and Security (2010) 31 ILJ 296 (CC).
24
(1998) 19 ILJ 1425 (LAC).
479
Carephone opened the way to ‘rationality review’ by the Labour Court, which went
some way to blurring the distinction between review, as it is traditionally conceived, and
appeal. But that trend was halted by the Constitutional Court in Sidumo v Rustenburg
Platinum Mines Ltd,25 in which it was ruled that the constitutional requirement of
‘reasonableness’, the term used in the Constitution, was ‘imported’ into s 145. The
review test prescribed by Sidumo was whether the conclusion reached by the
commissioner was one a reasonable commissioner might reach on the evidence led
during the arbitration.
Sidumo did not end the debate over the permissible grounds of intervention conferred
on the Labour Court by s 145 of the LRA. While that court regularly reminded itself,
and was reminded by the LAC and the SCA, that it must not cross the blurry divide
between appeal and review, the extent to which intervention was permissible on the
grounds of ‘irrationality’ or ‘unreasonableness’ remained—and remains—unclear. It
appears, however, that the weight of recent authority, now backed by the Labour Appeal
Court, is that awards will be reviewable if commissioners misconstrue evidence or legal
principles to the extent that they arrive at decisions contrary to those they would have
reached had they not misdirected themselves.26 This is a lower threshold for
reviewability than that of ‘gross irregularity’, ‘gross misconduct’ or ‘excess of power’
applied in reviews of private arbitration awards.
23.6 THE COMMON LAW AND FAIRNESS

While Fredericks27 suggested that persons pursuing actions arising from employment
disputes may rely on other constitutional rights, such as the right to lawful and fair
administrative action or to equality, that judgment is silent on the role of the ‘traditional’
source of employee rights, namely, the common law of employment.
The SCA fired the first shot in this debate in Fedlife v Wolfaardt,28 a case involving a
claim for breach of contract by an employee whose fixed-term contract had been
prematurely terminated. Once again, the case turned initially on a jurisdictional point:
The employer argued that the High Court lacked jurisdiction because the matter
involved a dismissal over which the Labour Court had exclusive jurisdiction. Both the
High Court and the majority of a divided bench in the SCA disagreed. Nugent JA
pointed out that the matter involved a pure contractual claim, and that nothing in the
LRA suggested that such claims could not be pursued in the civil courts. But if that was
the case, what if employees claimed breach of contract if their complaint was that the
dismissal was unfair, as opposed to unlawful in the traditional sense?
That issue arose in three cases before the SCA, in which employees claimed in the
High Court that they had been denied their contractual right to a fair pre-dismissal
procedure. In Old Mutual Life Assurance Co SA Ltd v Gumbi29 the court accepted that it
was time to ‘develop’ the common law to include an ‘implied term’ that employees are
entitled to a fair dismissal procedure. The court noted that the right to a pre-dismissal
hearing was ‘well recognised in our law’ and that it was required to develop the
common law, ‘to the extent necessary . . . to harmonise the common law with the Bill of
25
Sidumo v Rustenburg Mines Ltd (2007) 28 ILJ 2405 (CC).
26
See Herholdt v Nedbank Ltd [2012] 9 BLLR (LAC).
27
Fredericks note (1) above.
28
Fedlife v Wolfaardt (2001) 22 ILJ 2407 (SCA).
29
Old Mutual Life Assurance Co SA Ltd v Gumbi (2007) 28 ILJ 1499 (SCA).
480
Rights (which itself includes the right to fair labour practices)’, but upheld the appeal on
the basis that the employee had in fact waived his right by failing to attend the
disciplinary hearing.
This view appeared to have been upheld in Boxer Superstores Mthatha v Mbenya.30
In Murray v Minister of Defence31 the SCA went a step further. The court held in this
case that the applicant, a naval officer, had been ‘constructively dismissed’ and was
entitled to compensation for breach of contract. This was the first case in which the
notion of ‘constructive dismissal’32 was recognised by a civil court. Cameron JA
reasoned:
[T]he law and the Constitution impose ‘a continuing obligation of fairness towards the
employee on . . . the employer when he makes decision affecting the employee in his work’.
The obligation has both a formal procedural and substantive dimension; it is now
encapsulated in the constitutional right to fair treatment in the workplace.33
Later, however, the SCA revisited its approach to the issue. In SA Maritime Safety
Authority v McKenzie34 the respondent employee had approached the High Court,
claiming damages for breach of contract on the basis that his dismissal was
‘procedurally and substantively unfair’. The court held that to pursue such a claim in the
High Court the employee had to prove that he had a contractual right not to be dismissed
unfairly. In the absence of an express contractual provision to that effect such a
provision can only be tacit or implied. A tacit contractual provision is one which the
parties would have included had they envisaged the situation to which a party later
claims that the contract applies. An implied provision is one imported into the contract
from legislation or the common law. A unanimous SCA now held that the provisions of
the LRA relating to unfair dismissals are not automatically included by implication in
contracts of employment and that, had the parties thought about what would happen if
the employee claimed he had been unfairly dismissed, they would have agreed that the
employee would pursue his rights under the LRA. The court held, perhaps debatably,
that neither Old Mutual nor Boxer Superstores had held the contrary, and that Murray
was distinguishable because it concerned an employee who was excluded from the
LRA.
SA Maritime Safety Authority therefore affirms the ‘traditional’ common law
position: provided that it does not breach the contract, there is no ‘general duty of
fair dealing’ between employer and employee, and no general implied right not to be
dismissed except for a fair reason and in accordance with a fair procedure. However,
if the parties expressly include procedural rights in their contracts, or incorporate the
provisions of disciplinary codes into them, the employee may claim for breach of
contract if the employer dismisses the employee unfairly.35 The same would apply to
acts or omissions covered by the definition of ‘unfair labour practice’ if they are
expressly included in employment contracts.
30
Boxer Superstores Mthatha v Mbenya (2007) 28 ILJ 2209 (SCA).
31
Murray v Minister of Defence (2008) 29 ILJ 1369 (SCA).
32
Recognised in s 186(1)(e) of the LRA as occurring when the employee terminates the contract because the
employer had made the employment relationship intolerable.
33
Murray (note 31 above) [11], quoting W L Ochse Webb & Pretorius (Pty) Ltd v Vermeulen (1997) 28 ILJ 361
(LAC) at 366A.
34
SA Maritime Safety Authority v Mckenzie (2010) 31 ILJ 529 (SCA).
35
See, for example, Carter v Value Truck Rental (Pty) Ltd (2005) 26 ILJ 711 (SE).
481
23.7 THE RIGHT TO JOIN UNIONS AND EMPLOYERS’ ORGANISATIONS

The interim Constitution merely conferred on workers and employers ‘the right to
organise and bargain collectively’.36 Implicit in this general right must be a specific right
to join and participate in the activities of trade unions, because unions are the
mechanisms through which workers bargain collectively. However, the drafters of the
final Constitution chose to specify rights which are integral to the general right. The
right of workers to form and join unions and to participate in their activities and
programmes is now enshrined in s 23(2) of the final Constitution, along with the right of
employers to form, join, and participate in the activities of employers’ organisations.
The right of individual employees and individual employers to form, join and
participate in the activities of unions and employers’ organisations is given statutory
expression in s 5(1) and (2) of the LRA. This right is reinforced by a prohibition against
requiring any employee or person seeking employment not to be or become a member,
or to give up membership, of a trade union, and against prejudicing employees or
applicants for employment from past, present or anticipated membership of a union. The
same prohibitions apply in respect of an employer’s past, present or anticipated
membership of employers’ organisations.37 The dismissal of an employee in
contravention of s 4 is ‘automatically unfair’.38 The Labour Court has exclusive
jurisdiction to adjudicate alleged infringements of these rights.39
The right to join and participate in the activities of unions is the only right conferred
on applicants for employment by the LRA. Who exactly must be deemed an ‘applicant
for employment’ is not specified. But to give effect to the purpose of protecting job
seekers against this form of discrimination, the expression must be widely construed.
The prohibition rests on ‘any person’, not any employer. An employment agency which
sifts job applicants on the basis of past union membership would therefore be liable for
a breach of s 5. Apart from job seekers, the right to join and participate in union
activities is enjoyed only by persons in employment. Independent contractors will have
to rely on their constitutional right to associate if they happen to be denied contracts on
the basis of membership of or support for unions. No such case has been reported.
A further problem is whether the right to join and participate in union activities
extends to managerial employees whose allegiance to the employer might be
compromised if they also choose to ‘wear a union hat’. The LRA places no limitation on
the status of employers who may exercise the right to join unions. However, it would be
incongruous if managers responsible for bargaining with unions, and who must take
decisions possibly inimical to union interests, should enjoy the full panoply of rights
attached to union membership. Before the current legislative dispensation, the former
Appellate Division, acting as the highest labour tribunal under the 1956 LRA, accepted
in SA Society of Bank Offıcials v Standard Bank of SA Ltd40 that there must be a limit to
the right of senior employees to involve themselves in collective bargaining with their
own employer. The court declined to declare that the bank was obliged to bargain with
the union in respect of managerial employees.
36
Section 27 of the Interim Constitution.
37
Section 7 of the LRA.
38
Section 187(1).
39
Section 9(4).
40
SA Society of Bank Offıcials v Standard Bank of SA Ltd (1998) 19 ILJ 223 (SCA).
482
But the position has changed under the current LRA. IMATU v Rustenburg
Transitional Council41 involved a challenge to an employer’s prohibition on senior
managers joining unions. The municipality relented when the union objected, and
confined the prohibition to holding executive positions in unions. The court agreed with
the municipality’s contention that senior managers performed some functions
incompatible with holding union office, and the judge added that relations between
employers and unions are inherently antagonistic. It was therefore understandable that
under the common law employees could be dismissed for joining unions. Although this
was no longer possible under the Constitution, it was understandable that employers
should still baulk at the prospect of managerial employees wearing union hats. Greater
levels of loyalty could reasonably be expected of senior employees. But all this
notwithstanding, the position was no longer governed by the common law. The
provisions of s 4 of the LRA are unambiguous. The court rejected the municipality’s
submission that the right to participate in union activities was intended only for
‘workers’, and held that if the legislature had wished to exclude senior managerial
employees from the ambit of s 4, it would have said so expressly, as it had done in the
case of membership of workplace forums. Nor did the court accept the union’s argument
that the provision could not apply to employees who would breach their contracts by
exercising the rights concerned. The court accordingly held that a general ban on
managers joining trade unions would contravene s 4. However, the court also
acknowledged an important limitation on senior managers’ right to participate in union
activities. The judge observed that a unionist manager ‘must still do the work for which
he is engaged and observe the secondary duties by which he is bound under the
contract’. If the manager did not, he could be disciplined, and if necessary dismissed for
misconduct, or laid off for incapacity. The court concluded that, while managers cannot
be prevented from entering this ‘minefield’, they would have to tread carefully if they
did.
A question raised by s 23(2)(a) is whether the guaranteed ‘right to join a union’
implies a concomitant right not to join a union. International instruments suggest that
the negative right should not be implied,42 while foreign case law is equivocal.43 This
question is significant because, if the right not to join a union is guaranteed, the
constitutionality of agency and closed shop agreements may be questionable. Both
agency and closed shops are recognised and regulated by the LRA. An agency shop is an
agreement between an employer and a union in terms of which employees who are not
members of that union are required to pay fees to the union, even if the employee is a fee
paying member of another union. Apart from the obvious benefit to the signatory union,
the objective of closed shop agreements is to prevent proliferation of unions, inhibit
union rivalry, and stabilise collective bargaining. Agency shop agreements are aimed at
overcoming the problem of ‘free riders’—employees in a particular bargaining unit who
enjoy the fruits of bargaining by the union without paying fees.
Closed shops were developed in the late 19th century, and in South Africa were
initially found to comply with the common law44 and public policy,45 and were
41
IMATU v Rustenburg Transitional Council (2000) 21 ILJ 377 (LC).
42
ILO Convention 87 on Freedom of Association.
43
Young, James & Webster v United Kingdom (1985) 4 ERR 38 (yes, there is also a right not to join a union);
Lavigne v. Ontario Public Service Employees Union [1991] S.C.R. 211 (no, there is no right not to join a union).
44
R v Daleski 1933 TPD 47.
483
sanctioned by the industrial court.46 These arrangements are now closely regulated by
s 26 of the LRA. To prevent abuse and ensure constitutional compliance, closed shops
are hedged about with limitations. The first is that they can be concluded only by
registered unions which enjoy a majority of members in the workplace. A closed shop is
also binding only if: (i) at least two-thirds of employees covered by the agreement vote
in favour; (ii) the agreement must not require membership of the union party before
employment commences; (iii) the agreement must provide that no levy deducted may be
paid to a political party as an affiliation fee, or be contributed in cash or kind to assist a
person to stand for election to any political office, or be used for expenditure that does
not advance or protect ‘the socio-economic interests of employees’.
Closed shop agreements may be abused if unions exclude particular employees from
membership. The LRA therefore provides that union parties to such agreements may not
refuse an employee membership or expel an employee unless the refusal or expulsion is
done in accordance with the union’s constitution and the reason for the refusal or
expulsion is fair. Otherwise, it is ‘not unfair’ to dismiss employees who refuse to join a
trade union party to a closed shop agreement, or have been properly refused membership
or expelled. If the Labour Court finds that a dismissal arising from union conduct is
unfair, and grants an order of compensation or back pay, the union is liable, not the
employer.
These provisions therefore endorse only ‘post-entry’ closed shops, in which union
membership becomes ‘a term of the contract, not a condition of its making’. The
prohibition on dismissing employees who refuse to join the signatory union at the time
the agreement is implemented precludes ‘pre-entry’ closed shops, which require
employers to decline to appoint any candidate for a job who is not already a member of
the union party.47 Whether employees may be forced to relinquish membership of a
union that is not party to the closed shop agreement when they join the signatory party in
compliance with the agreement has not yet been decided.48
A final limitation in closed shop arrangements is time. No closed shop agreement
may last more than three years from the first ballot, unless is it renewed by another
two-thirds vote. A closed shop agreement terminates as soon as a simple majority so
decides.
While agency shops have less drastic implications for employees, they are no less
closely regulated. Like closed shops, agency shop agreements may only be concluded
between an employer or an employers’ organisation and a majority union or coalition of
unions in the workplace or sector. Agency shops need not be approved by ballot, but are
binding only if ‘employees who are not members of the representative trade union are
not compelled to become members of that union’. The agency fee must also be no higher
than the signatory union’s fee. Monies collected under this provision must be paid into a
separate account administered by the union and may not be used for purposes which do
not advance the ‘socio-economic interests of employees’, which include party political
purposes. Conscientious objectors may require their contributions to be placed in an
45
Amalgamated Clothing & Textile Workers of SA v Veldspun (Pty) Ltd (1993) 14 ILJ 1431 (A).
46
Mynwerkersunie v O’Okiep Copper Co Ltd (1983) 4 ILJ 140 (IC); Mbobo v Randfontein Estate Gold
Mining Co (1992) 13 ILJ 1485 (IC); Media Workers Association of SA v Die Morester & Noord-Transvaler
(Edms) Bpk (Pietersburg) (1990) 11 ILJ 703 (IC).
47
The European Court has declared ‘re-entry’ closed shops contrary to art 11 of the European Human Rights
Convention, which guarantees inter alia freedom of association.
48
The industrial court held that dual membership is not precluded by a closed shop arrangement.
484
account administered by the Department of Labour, to be used for the same authorised
purposes. Agency shop agreements terminate automatically if the signatory union or
unions cease to command a majority in the workplace or sector, but the money
accumulated is retained for use on authorised purposes.
The Labour Court has held that agency shop agreements may bind members of
minority unions, even if they wind up paying both the membership fee of their own
union and the agency fee.49 However, the courts will not countenance agency shop
agreements which do not comply strictly with the provisions of the LRA. In Greathead
v SACCAWU50 the appellant contended that the agency agreement by which he was
purportedly bound infringed his right to freedom of association and his constitutional
right not to be subjected to servitude and forced labour because the agreement did not
expressly contain the provisos contained in the LRA, in particular that monies collected
must be paid into a separate account and that members of other trade unions could not be
forced to become members of the signatory union. The court dismissed the union’s
argument that these limitations were incorporated by reference into the agreement. It
held that reference in the agreement to the provisions of the Act was nothing more than
a record of the parties’ intention to conclude an agreement ‘pursuant to s 25’. That
phrase indicated that the parties intended to expressly record the terms of s 25 in the
agreement. They had not done so. The agreement was accordingly declared void.51
Greathead was followed by the Labour Court in Solidarity v Minister of Public
Service & Administration,52 in which the agency shop fee concluded by the Safety &
Security Sectoral Bargaining Council was set aside. In response to the Minister’s
argument that it was unnecessary simply to replicate the provisions of s 25, the court
observed:
It therefore becomes an unfair labour practice to force the employee to join a trade union by
making deductions on (sic) his salary to make him join a union. The Legislature was aware
of this and therefore sought to provide that the agreement should make provision for the fact
that non-union members are not compelled to become members. This is a fundamental
requirement necessary to make the agreement valid.53
This quotation illustrates how close agency shop agreements arguably come to
infringing affected employees’ freedom of association. While the court annulled the
agreement because it did not expressly state that non-members of the signatory unions
were not compelled to join one of the signatory unions, the judge also suggested that,
without such a statement, it was to be assumed that those employees were to be ‘forced’
to join one of those unions. It may well be asked whether an express statement that
non-members are not compelled to join beneficiaries of an agency shop agreement
relieves the pressure on non-members to do so. That pressure arises from the very nature
of the agency shop. It may be that employees who are not members of any union decide
to join because they are paying a fee anyway. That may be regarded as an individual
choice. But in the case of employees who are members of non-signatory unions, the
49
National Manufactured Fibres Employers’ Association v Bikwani (1999) 20 ILJ 2637 (LC).
50
Greathead v SACCAWU (2001) 22 ILJ 595 (SCA).
51
Ibid [22].
52
Solidarity v Minister of Public Service and Administration (2004) 25 ILJ 1764 (LC). This judgment was
subsequently set aside on appeal on a technicality.
53
Ibid [25].
485
pressure is stronger. The obvious solution to a double fee—one voluntary, the other not
—is to cancel the voluntary payment. This means that the employee ceases to be a
member of the union of choice, and is then left with the choice of paying the agency fee
or assuming active membership of the signatory union. This may not constitute direct
compulsion. But the indirect pressure is strong.
There have been no reported cases in which the constitutionality of ss 25 or 26 of
the LRA has been challenged. If this ultimately occurs, the limitations on freedom of
association posed by closed shops and agency shops will probably be held to be
reasonable and justifiable.
23.8 TRADE UNION RIGHTS

The drafters of the 1996 Constitution paid greater attention to the rights of unions than
the drafters of the interim Constitution did. Section 27(3) of the interim Constitution
merely provided that ‘workers and employers shall have the right to organise and
bargain collectively’. But collective bargaining cannot take place without organisations
to represent workers and employers. The 1996 Constitution therefore recognises trade
unions and employers’ organisations, and guarantees their right to determine their own
constitutions and rules, to elect office-bearers and officials, to plan and organise lawful
activities, to form and join federations or unions and employers’ organisations and to
affiliate with and receive funding from like international organisations.54
But none of these rights is enough to ensure that these organisations perform their
functions effectively. The Constitution does not prescribe that workers and employers
must bargain collectively or suggest expressly that a refusal by one or other of the
parties to bargain constitutes an infringement of the other’s constitutional right. The
drafters’ silence on that point suggests that they favoured a ‘voluntaristic’ approach to
collective bargaining, in which employers and employees would be free to negotiate or
not to negotiate, with the ultimate inducement to bargain being provided by the exercise
of the right to engage in industrial action.
The LRA reflects this approach by granting to registered unions several
‘organisational rights’ designed to ensure that they are able to compete for members,
remain financially stable, and perform day to day functions, but refraining from
enforcing a duty to bargain in good faith, or at all. The organisational rights conferred by
the LRA are designed to give substance to the general rights conferred on unions by the
Constitution. These are the rights of access to the workplace,55 to hold meetings,56 to
conduct ballots,57 to stop-order facilities,58 to time off for union office-bearers for union
activities,59 to elect union representatives60 and to disclosure of information for
collective bargaining purposes.61
The rights of unions to enter the premises of employers and to engage with their
employees must be counterbalanced against employers’ constitutional rights to property
54
Section 8.
55
LRA s 12(1).
56
Section 12(2).
57
Section 12(3).
58
Section 13.
59
Section 15.
60
Section 14(2).
61
Section 16.
486
and privacy, and to their contractual right to services from their employees. The LRA
therefore sets limitations on the exercise by unions of their organisational rights. The
right of access to employers’ premises is granted only to ‘sufficiently representative’
unions, and is subject to ‘any conditions as to time and place that are reasonable and
necessary to safeguard life or property or to prevent the undue disruption of work’.62
Disclosure of information applies only to unions that enjoy majority status in a
particular workplace, and employers need not disclose information that is legally
privileged, which the employer may not disclose without contravening prohibition
imposed by law or a court order, and confidential information which, if disclosed, may
cause ‘substantial harm’ to the employee or the employer, or private personal
information relating to an employee without that employee’s consent.63 Disputes over
the exercise of these rights are resolved by statutory arbitration, which entails balancing
the competing rights of employers and employees in the circumstances of each case.
The LRA confers organisational rights only on unions which satisfy the required
threshold of representivity—‘sufficient’ representation in the case of the rights of access
and to stop-order facilities, majority representation in the case of the right to elect shop
stewards and of access to information. Minority unions can obtain these rights only with
the employers’ consent, or by strike action.64
While encouraging the formation of unions, the LRA displays a distinct preference
for ‘majoritarianism’. This raises the question of the constitutional rights of minority
unions to engage in collective bargaining. While they still play an important role in the
labour system, minority unions are faced with a number of statutory obstacles. The first
is the threshold for the acquisition of organisational rights, reserved in some cases for
majority unions. This may set an impossibly high target for some unions, even those
previously regarded as majority unions. This is because the LRA sets as the measure for
representivity not the bargaining unit which the union claims to represent, but the
‘workplace’ as a whole, which included all employees from the CEO down. To qualify
for rights more extensive than mere access, a union must either alone or in collaboration
with another union prove that it has or they have as members a majority of employees in
the workplace. This too may be an impossible standard for many unions which have
long enjoyed more extensive rights by agreement.
A further hurdle for minority unions is created by s 23(1)(d) of the LRA. This allows
employers and majority unions to extend collective agreements concluded between
them to employees who are not members of the majority union (which obviously
included members of minority unions). This provision has significant implications for
minority unions. They and their members may be bound by collective agreements even
if they do not wish to be and even if their members are capable of exerting powerful
pressure by industrial action in support of their own interests. The LRA prohibits strike
action if the employees concerned are bound by collective agreements, which would
include agreements extended under s 23(1)(d). If an employer and a majority union wish
to restrict still further a minority union’s right to strike, they may insert an express
clause prohibiting strike action in respect of all issues covered by the agreement. This
would trigger the prohibition of strikes set by s 65(1)(a).
62
Section 12(4).
63
Section 16(4).
64
National Union of Mineworkers of SA v Bader Bop (Pty) Ltd 2003 (3) SA 513 (CC).
487
Minority unions also face hurdles in establishments with workplace forums. These
institutions, which are aimed at encouraging co-operative management, may be
established only on application by majority unions. The voting system for workplace
forums proposed by the LRA is heavily weighted against employees who are not
members of the majority union. Furthermore, a majority union recognised by the
employer as the sole bargaining agent of all employees in the workplace can apply for
the establishment of a ‘trade union based forum’.65 This precludes the election of forum
members of any employees other than members of the majority union.
At sectoral level, the hurdle of ‘sufficient representativity’ arises again for minority
unions wishing to become members of bargaining councils. Unlike small employers,
minority unions do not enjoy a special right to consideration by bargaining councils. If
they wish to gain access to councils, unions must be ‘sufficiently representative’, unless
the major parties to the council have agreed to a particular threshold under s 18(1), in
which case unions must meet that level. Members of councils may also request the
Minister to extend collective agreements to non-members,66 thereby again binding
members of minority unions.
Although these provisions make deep inroads into the freedom of association of
employees who support minority unions, their constitutional validity has not yet been
directly challenged.
23.9 THE RIGHT TO BARGAIN COLLECTIVELY

Although the LRA provides unions with specific organisational rights for unions, the
Act is silent on how they may enforce the constitutional right to bargain with employers.
Although under the 1956 LRA the courts accepted that employers and employees were
obliged to bargain, and to bargain in good faith, the current Act does not expressly
impose a duty to bargain on either party, and the Labour Court has held that it lacks
power to intervene in collective bargaining either to proscribe bad faith bargaining, or to
prescribe an outcome, or to compel the parties to bargain. Beyond guaranteeing a ‘floor’
of organisational rights (see para 23.8), the LRA does not expressly impose a duty to
bargain. Instead, it leaves it to unions to use the influence flowing from the exercise of
these rights to acquire a further—and distinct—right to bargain with employers over
their members’ terms and conditions of service. This right can only be acquired with the
employer’s consent, usually recorded in a recognition agreement, which sets out how
the union may exercise its rights in the workplace, and lays down procedures for
collective bargaining and dispute resolution.
The LRA assists unions confronted with an employer which refuses to bargain only
by requiring the commission or councils to issue advisory awards before a union may
call a strike over a refusal to bargain.67 Self evidently, such advisory awards are binding
on neither the employer nor the union. Having declared a dispute and obtained an
advisory award, a union wishing to compel an employer to bargain must engage in strike
action if the employer remains obdurate. The only way in which unions can acquire a
right to bargain is to have that right entrenched in a collective agreement, or by
membership of bargaining councils. The process by which unions may seek to acquire
65
Section 81 of the LRA.
66
Section 32.
67
Section 64(2).
488
organisational rights is set out in s 21 of the LRA. While this provision stops short of
obliging the parties to agree on a bargaining entitlement, the collective agreements
envisaged in s 21 may include recognition of the union’s right to bargain.
Given the conferment by the Constitution on every trade union and employers’
organisation of a right to bargain, it may seem odd that the LRA did not follow suit. The
thinking behind the Act is that a right to bargain should be acquired by industrial action.
However, the question whether unions, employers’ organisitions or employees can
acquire a right to bargain by litigation remained moot for some time. A few Labour
Court judges suggested that it might be possible to enforce the right to bargain by
reliance on the Constitution. But this would suggest that the Constitution imposes a duty
to bargain as a corollary of the right to bargain.
Does it? This question was addressed in two cases involving a military union, which
had to rely on its supposed constitutional right to compel the SANDF to negotiate over
its members’ terms and conditions of service, because its members are excluded from
the LRA. The background to the cases was as follows. After the Constitutional Court
ruled unconstitutional certain sections of the Defence Act68 that prohibited members of
the SANDF from joining trade unions,69 the Minister published regulations providing
for the exercise of labour rights in the armed forces. These provided, among other
things, for the establishment of a Military Bargaining Council (MBC). Two years later,
the SANDF announced that it intended implementing a new staffing policy. The SA
National Defence Union (SANDU), which was registered after the Constitutional Court
judgment, claimed that the SANDF was not entitled to implement the new policy until it
had been negotiated with the military unions. After several meetings of the MBC,
SANDU wrote to the defence force’s HQ, warning that its members might be forced to
embark on ‘national labour unrest’ unless their concerns were addressed. The Minister
responded by reminding SANDU that labour action was still forbidden by the Defence
Act, and he warned in turn that any labour action would be dealt with as ‘acts of mutiny
leading to disciplinary action and possibly discharge of members’. More pertinently,
however, the Minister told SANDU that any further negotiations with that union would
be suspended until the union unconditionally withdrew its threat. This was a classic
refusal to bargain.
About a month later, the union assured the Minister that it had no intention of
promoting strike action. But that was too late; the new staffing policy had been
implemented a week earlier. Furthermore, the SANDF said that it would resume
negotiations with SANDU only after mediation. SANDU then approached the High
Court on an urgent basis for an order inter alia restraining the SANDF from
implementing the new policy, and directing the SANDF to bargain with the union
without setting preconditions.70
In the meantime, a further dispute between SANDU and the SANDF was looming.
This time, the union’s complaint related to two of the regulations governing labour
relations. The first of these empowered the Minister to appoint a ‘Registrar of Military
Trade Unions’; the second authorised the registrar to withdraw SANDU’s registration
without prior notice. The union argued that these regulations were unlawful because the
Minister had failed to negotiate before their promulgation. In SANDU v Minister of
68
Defence Act 44 of 1957.
69
See South African National Defence Union v Minister of Defence 1999 (4) SA 469 (CC).
70
See South African National Defence Union v Minister of Defence 2003 (3) SA 239 (T).
489
Defence71 the union sought an order declaring that the Minister was obliged to negotiate
with it ‘on all matters of mutual interest that might arise between them’ and directing the
Minister to negotiate.
Common to both cases was the same question: was the SANDF obliged to negotiate
with registered unions before implementing decisions concerning labour and
employment rights and, if so, what was the extent of that obligation? In the first case, the
court found that an obligation to bargain could arise only from the regulations or from
the Constitution. The judge noted that, while the interim Constitution recognised a ‘right
to bargain collectively’, the current Constitution confers a ‘right to engage in collective
bargaining’. The court found this change of wording significant. The first formulation, it
said, seemed to recognise a right with a correlative duty, the second recognised a
freedom—ie a right which nobody can prevent the holder from exercising, but which
imposes no duty on anybody other than the duty not to interfere with the right. After
reviewing authorities on the issue, the court found that academic writers generally
agreed that s 23(5) of the present Constitution recognises the right to engage in
collective bargaining, or the freedom to bargain collectively, but that it does not impose
on employers a corresponding duty to participate in collective bargaining; instead, said
the judge, the Constitution favours a ‘voluntaristic’ approach. Although the judge
acknowledged that the last word had not been spoken on the issue, he nevertheless found
that the Constitution ‘does not impose a duty on the employer to collectively bargain to
deadlock’. Nor could the court find anything to the contrary in the new regulations.
These were also merely permissive.
In spite of these findings, the judge was prepared to be drawn into further debate on
another question: whether the SANDF’s decision to withdraw from the bargaining
process was reasonable in the circumstances. He gave two reasons for so doing. The first
was that his conclusion that SANDU had not proved that the SANDF was obliged to
bargain might be wrong. The second was that, even if the Constitution did not impose a
duty to bargain on employers, this did not necessarily mean ‘that participation in a
process of negotiation and bargaining is so entirely voluntary that the employer could,
for no reason at all, or at its mere whim, or simply because it would be inconvenient or
difficult, decide not to negotiate’. The second reason appears to recognise an
intermediate species of right/freedom, which imposes on employers a corresponding
duty, not merely to respect a union’s right to bargain, but to engage in bargaining to the
extent that can reasonably be expected. If such a duty exists, it creates the very situation
which the drafters of the LRA were at pains to avoid—the possibility of judicial
intervention in the collective bargaining arena. It was arguably with the intention of
ending the debate over the duty to bargain which raged under the 1956 Act that the
legislature chose to delineate the organisational rights of trade unions, and to leave the
acquisition of further rights (including the right to bargain) to be acquired by industrial
action.
The remainder of the first SANDU judgment represents a classic instance of judicial
intervention in the bargaining arena. The judge’s views on the union’s tactics are
summed up in this passage:
[T]he tactics, language, style and tone adopted by [SANDU] . . . are not acceptable . . .
[SANDU’s] attitude could be seriously undermining of morale and discipline in the SANDF.
71
South African Defence Union v Minister of Defence 2004 (4) SA 10 (T).
490
To threaten with or even warn about labour unrest, knowing that it is illegal, within the
context of thousands of employees who are armed and who have access to highly potent
weaponry, and especially to label the command structure and political head of the military as
‘the forces of darkness’, who are involved in an ‘onslaught against the rights of soldiers’, as
nothing less than an ‘enemy’, is certainly more than robust negotiating language . . . We are
not dealing here with unions utilising the space created by labour law to wage a struggle
against an unjust legal, political, social and economic system by people whose rights have
been denied for decades. What we have here is a scathing attack on the Minister of Defence
of a democratically elected government, appointed by the President who is also the supreme
commander of the armed forces, and on senior officers.72
Although the judge stopped short of finding that SANDU’s conduct constituted bad faith
bargaining, he held that even if the SANDF was ‘legally, morally or otherwise in
principle obliged to participate in collective bargaining in the MBC’, its refusal to
continue bargaining was not unreasonable in the circumstances. The SANDU’s
application was dismissed with costs.
In the second SANDU case, a different judge adopted a very different approach.
He noted that many of the authorities on which the court had relied in the earlier
case in support of the view that the Constitution conferred only ‘freedom’ to bargain
had been decided under the 1956 LRA, which was inapplicable to the dispute
between SANDU and the SANDF because the military are excluded from the current
LRA. The second judge ruled that the first judgment was ‘wrong’.73 According to the
second SANDU judgment, the first had erred by treating the right to bargain as a
mere freedom, because the first judge had overstressed the choice of the phrase ‘right
to engage in’ collective bargaining. To the second judge, this was at best a ‘neutral’
clue to the meaning of s 23(5) of the Constitution. What mattered more was logic:
‘If the Minister is not burdened with an obligation to bargain in good faith, SANDU
will be deprived of any method of enforcing their (sic) “right to engage in collective
bargaining”’. The judge continued:
Consequently, for purposes of s 23(5) of the Constitution, ‘collective bargaining’ means
negotiation in good faith between employer and employee (or their respective
representatives) on all matters of mutual interest pertaining to terms and conditions of
employment and as the Constitutional Court has indicated: ‘The Constitution contemplates
that collective bargaining between employers and workers is the key to a fair industrial
relations environment’ . . . It has also stated that the duty to bargain in good faith ‘is
associated with and integral to’ collective bargaining . . . As SANDU has a right to engage in
collective bargaining in terms of the provisions of s 23(5) . . . the conferral of such a right
must . . . impose a correlative duty on some person. . .. In other words, s 23(5) imposes an
72
South African National Defence Union (note 7 above).
73
The judge referred to three judgments to which the court had not been referred in the first case, or which had
not yet been decided. These were National Union of Mineworkers v East Rand Gold & Uranium Co Ltd (1991)
12 ILJ 1221 (A), National Education Health & Allied Workers Union v University of Cape Town (2003) 24 ILJ
95 (CC) and National Union of Metalworkers of SA v Bader Bop (Pty) Ltd 2003 (3) SA 513 (CC). In the East
Rand Gold judgment, the Appellate Division held that the company had committed an unfair labour practice by
abandoning negotiations with NUM and dealing directly with its employees. In the course of the judgment, the
court confirmed the importance of fair collective bargaining for sound labour relations. In the University of Cape
Town and Bader Bop judgments, the Constitutional Court held that the LRA must be generously construed,
especially when it comes to interpreting and applying restrictions on the right to strike. The Constitutional Court
echoed the view expressed in the East Rand Gold judgment by observing that ‘the Constitution contemplates that
collective bargaining between employers and workers is the key to a fair industrial relations environment’.
However, none of these judgments dealt directly with the question raised in the SANDU cases—namely, whether
the constitutional right to bargain collectively obliged the other party to bargain as well.
491
obligation on the minister to engage in collective bargaining. Were it otherwise the minister
would be able to subvert the very process.74
According to the court, the regulations had to be similarly interpreted. The fact that they
merely stated that military unions may engage in collective bargaining was of no
significance. The word ‘may’ is not only permissive; it may also confer powers. To
exercise the right (or power) to negotiate, the military unions must have someone to
negotiate with, and that can only be the Minister in his capacity as employer. The judge
accordingly ordered the Minister to negotiate in good faith with SANDU and other
representative military unions, and struck down the regulations which purported to limit
the matters of mutual interest over which negotiations could take place, and several
other regulations which the court deemed unconstitutional.
Both judgments, as well as a third in which the SANDF was interdicted from
implementing the regulations, came before the SCA.75 That court attached no
significance to the fact that the final Constitution confers only a right to ‘engage in
collective bargaining’. It noted that the phrase is open to at least three interpretations
—it may mean that legislation that contemplates regulating collective bargaining
must impose a duty to bargain on employers, or it may mean that national legislation
must provide a framework for collective bargaining, or it may mean that legislation
may not prohibit collective bargaining. Guided by the injunction to interpret
legislation where possible to promote the values enshrined in the Bill of Rights and
consistently with international law, the court noted that the Constitutional Court had
accepted that the expression ‘workers’ in the applicable ILO Convention included
members of armed forces. The ILO Convention permits the exclusion of military
personnel from its provisions relating to freedom of association and organisational
rights. National legislation that excludes them from its scope does not therefore
offend against the convention. Apart from this, said the court, the ILO Convention
shows a distinct preference for voluntary collective bargaining; and recognises that
national legislation may cater specifically for the armed forced, and that dispute
resolution procedures like mediation and arbitration may in appropriate
circumstances be an adequate and sensible substitute for the right to strike.
The court also noted that the interim Constitution tied the right to strike directly to
collective bargaining. Disputes about collective bargaining were considered to be
disputes of interest, which workers are entitled to resolve by striking. Allowing
workers to strike to secure collective bargaining rights puts collective bargaining
disputes into the category of ‘interest disputes’, and excludes any judicially enforced
right to bargain. If the change of wording in the final Constitution was intended to
radically alter the established structure of voluntary bargaining, the drafters would
have used clearer language. The objectives of the LRA make it clear that the Act
was intended to be no more than a framework for collective bargaining. This
intention was reinforced by the fact that the legislature had provided for advisory
arbitration in disputes relating to collective bargaining. Given that the LRA was
crafted to give expression to the labour rights conferred by the interim Constitution
and that the final Constitution was drafted after the promulgation of the LRA, one
74
South African National Defence Union (note 71 above) 23E–23I.
75
2007 (1) SA 402 (SCA), (2006) 27 ILJ 2276 (SCA); 2007 (1) SA 422 (SCA), (2007) 28 ILJ 828 (SCA).
492
would be hard pressed to contend that the Act is unconstitutional because it fails to
confer a legally enforceable right to bargain collectively.
In any event, said the court, the LRA does not apply to the armed forces, and
since unions in the civilian sector have no judicially enforceable right to bargain, it
would be surprising if unions in the military sector should enjoy that right. Although
the difference might be explained by the fact that the military sector is excluded
from the LRA, there is another acceptable alternative to strike action, namely,
compulsory arbitration, which is provided for in the case of essential services. The
prohibition against strikes in the armed forces is not unconstitutional. The military
may therefore be compared with other essential services, and its labour relations are
structured accordingly. The court accordingly concluded that the Constitution does
not impose a judicially enforceable duty to bargain, and does not automatically
import such a right where the right to strike is removed or restricted.
In a further appeal against the SCA’s judgment, the Constitutional Court held that
the judges in both the High Court and the SCA had adopted the incorrect starting
point76. The correct starting point was not the Constitution, but the regulations which
governed dispute resolution in the armed forces because litigants wishing to assert a
constitutional right must firstly base their claim on legislation designed to regulate
the right. The court noted that the regulations were designed inter alia to promote
fair labour practices, to regulate collective bargaining over ‘certain issues of mutual
interest’ and ‘generally to provide for an environment conducive to sound and
healthy service relations’. As in the case of the LRA, the regulations confer on
recognised unions a range of rights, and permit them to engage in collective
bargaining over employment related issues. The regulations also created the MBC
and a Military Arbitration Board, the latter being the final forum for resolving
disputes between parties to the MBC. The court concluded that, given this structure,
the SANDF could not, as an employer, without recourse to the MAB, unilaterally
withdraw from the MBC and lay down preconditions for returning.
As far as the duty to bargain was concerned, the court held that the union’s case
failed because it could point to no authority which entitled it to bargain with the
employer on the subject matter of the disputed regulations, designed to regulate
transformation in the armed forces. However, the union succeeded in its argument
that the employer was not entitled to withdraw from negotiations and unilaterally
implement the regulations. Although the SANDF had by the time of the final appeal
announced that it no longer intended implementing these regulations, the court dealt
with that issue because the dispute might arise again. It held that to permit the
employer to unilaterally implement the disputed regulations without engaging the
dispute resolution procedure provided by the MBC would ‘conflict with the overall
purpose and effect’ of that procedure. Unilateral implementation of disputed policies,
said the court, was not calculated to promote sound labour relations—indeed, ‘the
very purpose of the regulations is to prevent unilateral action by the SANDF in
respect of the areas of permissible bargaining until the procedures provided for in the
regulations have been exhausted’.
Since the Constitutional Court expressly refrained from deciding the general
question whether s 23(5) of the Constitution imposes a judicially enforceable duty to
76
In South African National Defence Union v Minister of Defence 2007 (5) SA 400 (CC).
493
bargain,77 the SCA’s pronouncements on that issue remain, if not binding, at least
persuasive. The SCA’s judgment makes it clear that South African law does not
recognise a legally enforceable duty to bargain. That pronouncement is clearly not
confined to the military sphere. Only once the parties conclude an agreement that
embodies a reciprocal obligation to negotiate is a right to engage in collective
bargaining secured. But even then, the courts will not interfere in the outcome of
such bargaining.
The judgments of both the SCA and the Constitutional Court in SANDU also
eliminate the possibility that unions may bypass the LRA to secure the right to
bargain by relying directly on the Constitution, and seem to foreclose any attack on
the LRA itself on the ground that it gives inadequate recognition to the constitutional
right to engage in collective bargaining. The SCA judgment certainly puts an end to
any argument that a duty to bargain or to bargain in good faith can be derived from
the LRA. The Labour Court’s attitude to this issue was in any event exemplified
long before the SANDU judgments in Entertainment Commercial Catering & Allied
Workers Union of South African v Southern Sun Hotel Interests (Pty) Ltd,78 in which
the judge described as ‘ill-conceived’ a union’s attempt to obtain an order restraining
the employer from continuing to bargain ‘in bad faith’ by insisting that the union’s
members resign from one pension fund and join another. The court observed:
Although the concept of the duty to bargain in good faith was recognised in relation to the
unfair labour practice jurisdiction of the 1956 Labour Relations Act, this is not the approach
adopted in the current Act. Accordingly, the duty which existed under the 1956 Act . . . had
not been incorporated into the current Act. There is no legal duty, implied by the Act, or any
other law, to the effect that there is a duty to bargain good faith. In the absence of such a duty
being incorporated into the Act, it was not clear which law the applicants relied upon to that
the duty to bargain in good faith is incorporated into the recognition agreement. This
approach was not helped by the applicants’ bare assertion in the founding affidavit that such
an implied term exists. The applicants bear at least an onus to show prima facie that such a
term is implied in the recognition agreement which they have not done.79
The court referred in support of this view to s 64(2) of the LRA, which prescribes that if
the issue in dispute between the parties is what is described as a ‘refusal to bargain’, the
party wishing to resort to industrial action must first obtain an advisory award.
According to the court, this provision underscores the legislature’s intention that the
courts should stay out of disputes concerning a bargaining entitlement. However, in
Southern Sun the court acknowledged that there had been two possible exceptions to the
bar on its (the court’s) intervention in collective bargaining disputes. The first is where a
duty to bargain is imposed by collective agreement; the second is where one of the
parties makes a demand that is so ‘unconscionable or outrageous’ that it is possible to
infer that that party has no intention of reaching agreement. However, the court made it
clear that it will neither imply into a collective agreement a duty to bargain, nor lightly
condemn a particular demand as unfair or unconscionable.
There are no reported judgments in which an employer was ordered to bargain
because of a duty imposed by a collective agreement. This order could be granted by
77
Ibid [56]. The court merely noted (at [55]) that a justiciable duty to bargain might draw the courts into ‘a
range of controversial industrial relations issues’.
78
Entertainment & Commercial Catering and Allied Workers Union of South Africa v Southern Sun Hotel
Interests (Pty) Ltd (2000) 21 ILJ 1090 (LC).
79
Ibid [27].
494
a statutory arbitrator only in a dispute concerning the interpretation or application of

a collective agreement referred under s 24(6) of the LRA. But a commissioner acting
under that provision may not compel an employer to bargain unless the collective
agreement expressly imposes such a duty.80
23.10 THE RIGHT TO STRIKE

The right to strike is generally considered a vital adjunct of the right to bargain
collectively. According to a famous aphorism, without the right to strike, collective
bargaining is nothing more than collective begging. The right to strike is conferred by
s 23(2) in seemingly absolute terms—it simply gives every ‘worker’ that right. A
‘strike’ is the term for a collective withdrawal by employees of their labour. The
correlative is the employer’s right to lock out, which was recognised, if not as a right, at
least as an entitlement by the interim Constitution.81 There is no mention of lockouts in
the final Constitution.82 Similarly, the interim Constitution restricted the right to strike
to those ‘for the purposes of collective bargaining’, suggesting that strikes used for
other, wider objectives would not enjoy constitutional protection. This potential
restriction has been removed in the final Constitution, and the drafters of the LRA used
the term ‘protest action’ to describe strikes aimed at issues wider than those confined to
a particular workplace or sector. Protest action enjoys the same protection as strikes.
The LRA distinguishes between ‘strikes in compliance with the Act’ and those that
are not in compliance with the Act (termed, respectively, ‘protected’ and ‘unprotected’
strikes). A strike is protected if the employees or their union follow the procedures
prescribed by the LRA,83 and does not infringe one or other of the ‘substantive
limitations’84—namely, that the issue in dispute must not be covered by a collective
agreement; that the workers must not be bound by an agreement which provides that
disputes of the kind at issue must be referred for private arbitration; that the employees
are not engaged in an essential service; and—most fundamental of all—that the issue in
dispute is not one which may be referred for arbitration or adjudication under the Act.
The latter restriction illustrates a fundamental principle underlying the LRA, namely,
that some disputes (generally, if erroneously, termed ‘disputes over matters of mutual
interest’)85 are appropriately determined by industrial action, while other disputes
(generally termed ‘disputes of right’) are appropriately determined by judicial
intervention or by arbitration. Disputes of interest are those arising from claims to which
the claimant has no legal entitlement. Disputes of right are those which may be referred
80
See BHP Billiton Energy Coal SA Ltd v CCMA (2009) 30 ILJ 2056 (LC); TAWUSA & Alliance Comprising
of STEMCWU v Anglo Platinum Ltd (2009) 30 ILJ 2142 (LC).
81
The interim Constitution stated that every employer could have ‘recourse’ to a lockout. This expression is
used in of the LRA: see s 64(1).
82
The exclusion of reference to lockouts was challenged during the certification process as failing to meet the
requirements of CP XXVII, requiring provision in the 1996 Constitution of a ‘right . . . to engage in collective
bargaining: see Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the
Republic of South Africa, 1996 1996 (4) SA 744 (CC) [64]–[68]. The court held that the ‘right to exercise some
economic power is implicit in the right to collective bargaining’, but found it unnecessary to recognise the nature
and extent of that right. The right of every employer to ‘have recourse’ to a lockout is recognised by the LRA.
83
Section s 64.
84
Section 65.
85
Erroneously because all disputes between employers and employees are ‘matters of mutual interest’: see
s 134.
495
for arbitration or adjudication under the Act, and include disputes concerning the
interpretation of application of collective agreements, unfair labour practices, unfair
dismissals, and the like. Apart from disputes concerning these matters, employees may
strike, and employers may lock out, over any issue concerning their relationship as
employer and employee, except, arguably, where the dispute arises from a demand that
the other party perform some unlawful act.86 Protest action may be called over a wider
range of disputes, including any conduct (even by a third party) which affects the
socio-economic interests of workers.87
Another significant limitation is that employees engaged in essential services may not
strike.88 These employees must refer all disputes, including disputes of interest, for
arbitration.89 So-called interest arbitrations in essential service disputes are the single
statutory exception to the general renunciation of third-party intervention in collective
bargaining disputes. Self-evidently, the prohibition on strike action by essential service
employees applies only to workers who perform essential services. The courts appear to
accept that a distinction must be drawn in this regard between employees engaged in
essential services who perform essential functions and those performing peripheral
functions, and that the strike prohibition applies only to the former.90
The Act also provides for ‘minimum services’ and ‘maintenance service’ agreements,
in terms of which a core of workers is obliged to continue working while their
colleagues are on strike.91 Employers not engaged in essential services may apply to the
essential services committee for the recognition of maintenance services.92 If the
committee agrees to declare minimum or maintenance services, the employer may not
engage replacement labour during the strike.93
Once they have complied with the above requirements, strikers and those engaged in
protest action are protected against retaliation by employers for the act of striking. To
dismiss employees for engaging in a protected strike, or for refusing to perform work
normally performed by strikers, is automatically unfair.94 Protected strikers are also
indemnified against actions for damages arising from the strike, except for damages
unlawfully caused.95 Strikers who have not complied with requirements of the Act are
deemed to have committed misconduct,96 and may be disciplined and dismissed or sued
for damages. So, too, may strikers who commit misconduct (other than the act of
striking) during a protected strike.
The Act recognises the right of strikers to picket peacefully outside the employer’s
premises or, with the employer’s permission, inside the workplace.97 If the parties are
86
See TSI Holdings (Pty) Ltd v National Union of Metalworkers (2006) 27 ILJ 1483 (LAC).
87
Section 77.
88
Section 65(1)(d).
89
Section 74.
90
See SA Police Service v Police & Prisons Civil Rights Union 2011 (6) SA 1 (CC).
This case concerned the SAPS in particular, which is governed by specific legislation, but the judgment seems to
have wider application.
91
Sections 72 and 74.
92
Section 75.
93
Section 76(1).
94
Sections 64(4), read with 187(1)(a) and (b).
95
Section 67(6).
96
Section 68(5).
97
Section 69(2).
496
unable to agree on picketing rules, the CCMA is empowered to do so. Breaches of

picketing rules by protected strikers constitute disciplinary offences.
The right to picket overlaps with, and forms part of the general right to assemble and
demonstrate, conferred by s 17 of the Constitution. Gatherings are specifically regulated
by the Regulation of Gatherings Act 205 of 1993. If a union wishes to organise a
gathering in a public area, in terms of that Act it must seek permission from the local
authority concerned. The Gatherings Act makes specific provision for those who suffer
damages at the hands of demonstrators to recover damages from the convener. The
constitutionality of this provision was placed at issue in the litigation leading to
SATAWU v Garvas,98 in which a union claimed that foisting liability on it for damages
caused by unruly union members who had gathered in the Cape Town city centre was
unconstitutional because it could have a ‘chilling effect’ that would prevent unions and
other organisations from exercising their right to assemble and demonstrate. This proved
a poor test case. The demonstration took place against the background of a protracted
and violent strike which had already resulted in damage to property, intimidation, and
the murder of about 50 people. The gathering resulted in further damage estimated at
about R1,5 million. Among the victims were a number of street vendors whose stalls
were overturned and looted, and motorists whose vehicles were damaged. They sued the
union under the Gatherings Act and the common law. The High Court,99 the SCA100 and
the Constitutional Court101 all dismissed the union’s claim that the Gatherings Act was
in that respect unconstitutional, pointing out that the constitutional right to assemble
must be balanced against the right of others to the protection of their property and
physical safety. The Gatherings Act was pronounced constitutionally compliant, and the
matter was remitted to the High Court to assess the merits of the plaintiffs’ claim. The
judgments sent a clear warning to unions that they are responsible for ensuring that their
members picket in orderly fashion.
23.11 DISCRIMINATION IN THE WORKPLACE

The Constitution prohibits unfair discrimination by any person on certain specified or
analogous grounds and provides that national legislation must be enacted to prevent or
prohibit unfair discrimination.102 The statute designed to prevent and prohibit unfair
discrimination in the workplace is the Employment Equity Act 55 of 1998. The EEA is
divided into two main parts. The first replaces and refines the prohibition on unfair
discrimination originally found in the repealed item 2(1)(a) of Schedule 7 to the LRA.
How the courts interpreted and applied the concept of ‘unfair discrimination’ under the
‘residual unfair labour practice’ definition remains relevant. The second part of the
Employment Equity Act is novel. It imposes a duty on employers to adopt affirmative
action programmes.
The EEA begins by placing a positive obligation on all employers to ‘promote equal
opportunity in the workplace by eliminating unfair discrimination in any employment
98
(2012) 33 ILJ 1593 (CC).
99
Garvas v SATAWU 2010 (6) SA 280 (C).
100
2011 (6) SA 382 (SCA), (2011) 32 ILJ 2426 (SCA).
101
SATAWU v Moloto 2012 (6) SA 249 (CC).
102
Section 9(4), read with s 9(3). The general constitutional right to equality and against unfair discrimination
is discussed in Chapter 9.
497
policy or practice’.103 This obligation is reinforced by a prohibition on unfair

discrimination, which reads as follows:
No person may unfairly discriminate, either directly or indirectly, against an employee, in
any employment policy or practice, on one or more grounds, including race, gender, sex,
pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual
orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture,
language or birth.104
The Act also expressly includes harassment of employees on any listed ground.
The prohibition of acts or omissions involving ‘unfair discrimination, either
directly or indirectly’ against an employee could embrace any employment
practice105 which has the effect of unfairly discriminating in any way, for whatever
motive. An intention to discriminate need not necessarily be present; the impact of
the discriminatory practice is decisive.106 The discriminatory practice must impact on
the dignity of the affected individual, who must be a member of a group deemed
worthy of protection.107
People are discriminated against in the ordinary sense when they are denied
privileges or rights accorded others. Employees who can prove that others in
comparable circumstances are accorded benefits they are denied may be held to be
victims of discrimination.108 But in law, discrimination extends further. Employees
are victims of unfair discrimination if they are singled out for prejudicial treatment
on some unacceptable ground. This constitutes harassment, which the Act states is a
form of discrimination.109 Harassed employees need not compare their situations to
those of their colleagues; harassment in itself constitutes discrimination. Nor does
discrimination necessarily involve actual prejudice to the individual concerned.
Employees denied promotion lose nothing in an objective sense; they are merely
denied benefits which in fairness they should have been accorded.
The EEA also protects job seekers from unfair discrimination. Apart from being
precluded from discriminating against applicants on the listed grounds, employers are
not permitted to hold ‘lack of relevant experience’ against them.110
The onus of proving discrimination rests on the employee. This not an easy onus
to discharge; the Labour Court has deplored the tendency of some people to cry
103
Section 5.
104
Section 6(1).
105
According to its definition in s 1 of the Employment Equity Act, an employment practice includes
recruitment procedures, advertising and selection criteria, the appointment process, job classification and
grading, remuneration, employment benefits and terms and conditions of employment, the working environment
and facilities, training and demotion, disciplinary measures and dismissal.
106
Ontario Human Rights Commission v Simpson Sears Ltd (1985) 2 SCR 536, 551; Association of
Professional Teachers v Minister of Education (1995) 16 ILJ 1048 (IC) 1089–1090.
107
See, for example, Stojce v University of KwaZulu-Natal (2006) 27 ILJ 2696 (LC). The court pointed out by
way of example that smokers, thugs, rapists, hunters of endangered wildlife and millionaires do not qualify for
protection as a class.
108
See, for example, Leonard Dingler Employee Representative Council v Leonard Dingler (Pty) Ltd (1998)
19 ILJ 285 (LC) (separate and inferior pension scheme of predominantly black, hourly paid workforce). Where
employees claim wage discrimination, they must prove that for some prohibited reason they are paid less than
colleagues either on the basis that they are paid less for doing the same work, or for work of equal value. If the
latter, expert evidence must be led to prove that the work is indeed of equal value: see Mangena v Fila SA (Pty)
Ltd (2010) 31 ILJ 662 (LC).
109
Section 6(3).
110
Section 20(5).
498
‘discrimination’ when there is no logical basis for the claim.111 Once this onus is
discharged the onus shifts to the employer to prove that it has not acted unfairly.112
As with the general constitutional prohibition, unfair discrimination may be either
direct or indirect. The prohibited grounds are much the same as those specified in
s 9(3) of the Constitution, and are also not intended to be exclusive. The court also
held that where discrimination is based on one of the specified grounds, it is
presumed unfair; if the discrimination is based on some other ground, the
complainant must establish unfairness. But in every discrimination case the court
must be satisfied that the employee was indeed discriminated against on one of the
listed or analogous grounds. For example, the mere fact that an employee happens to
be Jewish does not mean that he is discriminated against for being made to work on
Saturdays, the Jewish Sabbath, unless there is proof that the employer makes the
employee work on that day merely because he is Jewish.113
As will be seen below, the EEA obliges all designated employers to adopt and
implement affirmative action plans. Whether this means that designated employees
may claim to be unfairly discriminated against if their employers fail to ‘affirm’ them
has given rise to some controversy. Where employers have appointed or promoted
white males and overlooked designated candidates, the only defences on which they
can rely are either to deny that the appointment or promotion of the white male was
discriminatory, or to deny that the disappointed designated applicants had a right to
be appointed or promoted simply because they were members of designated groups.
One or other of these defences succeeded in nearly all cases decided before the
promulgation of the EEA.114
Even after the promulgation of the EEA, it was generally held that that Act
protects people against discrimination on the grounds set out in s 6, but that this
provision does not entitle people to special consideration on those grounds.115 The
possibility that the EEA may give rise to claims for special consideration by
members of designated groups arose directly for the first time in Harmse v City of
Cape Town.116 Harmse, a municipal official, applied unsuccessfully for one of three
executive posts in the Cape Town municipality’s new metropolitan structure. He
claimed that he was suitably qualified for any of the three posts, and that he was not
appointed because of his race, political belief, lack of relevant experience ‘and/or
other arbitrary grounds’. Harmse not only claimed that the municipality’s refusal to
appoint him for any or all of these reasons constituted unfair discrimination, he also
claimed that the municipality had discriminated against him by failing to apply the
affirmative action provisions of the EEA.
The grounds on which Harmse claimed discrimination under this head were that
the municipality had failed to consider all the factors set out in the EEA when
111
Mahlanyana v Cadbury (Pty) Ltd (2000) 21 ILJ 2274 (LC). See also Stojce v University of KwaZulu-Natal
(2006) 27 ILJ 2696 (LC), in which the court dismissed an application by a disgruntled lecturer of Bulgarian
extraction, who had been turned down on the basis that his spoken English was poor.
112
Section 11 of the EEA.
113
See Lewis v Media24 Ltd (2010) 31 ILJ 2416 (LC), in which the employer adduced proof that the employee
did not in fact observe the Sabbath, even when he was able to do so.
114
Transport and General Workers Union v Bayete Security Holdings (1999) 20 ILJ 1117 (LC); Abbott v
Bargaining Council for the Motor Industry (Western Cape) (1999) 20 ILJ 330 (LC); Mahlanyana v Cadbury
(Pty) Ltd (2000) 21 ILJ 2274 (LC) and Lagadien v University of Cape Town (2000) 21 ILJ 2469 (LC).
115
See, for example, Stulweni v SAPS Western Cape Province (2003) 24 ILJ 883 (CCMA).
116
Harmse v City of Cape Town (2003) 24 ILJ 1130 (LC).
499
determining whether he was a suitable candidate, that the municipality had unfairly
discriminated against him because he lacked relevant experience and that, as a result,
the municipality had failed to meet its numerical goals to achieve the equitable
representation of suitably qualified persons from designated groups. In other words,
Harmse relied on a combination of the protection against discrimination afforded him
by s 6 of the EEA and a right to be preferred, which he claimed arose from the
municipality’s obligation as a designated employer to promote employment equity,
and accordingly himself, as a designated person. The court reasoned that designated
employees who have been overlooked for appointment because of lack of experience
may claim unfair discrimination. An employer’s failure to apply affirmative action
could therefore, in appropriate circumstances, give rise to a valid complaint of unfair
treatment. In other words, s 6 may serve as both a defence for employers (a shield)
and a cause of action (a sword) for disappointed employees or applicants for
employment.
In Dudley v City of Cape Town,117 the court declined to follow the Harmse
judgment. Dr Dudley was another disappointed candidate for a promotional post in
the City of Cape Town municipal hierarchy. She also claimed that, as a designated
employee, she had been unfairly discriminated against because a white male was
appointed to the post to which she had aspired. However, her claim went further
than Mr Harmse’s claim. Dudley also sought an order compelling the municipality to
implement affirmative action as required by its employment equity policy and/or the
EEA. The judge noted a number of distinctions between Chapters II and III of the
EEA. The first difference is that, for purposes of Chapter II, the presence of unfair
discrimination is a matter to be determined by the application of law; the meaning of
unfair discrimination in that context is not the subject of consultation between
employers and employees. Employers must consult employees on the content of the
equity plan, as well as on its implementation. Employees must also be consulted on
reports that must be submitted to the director-general in terms of s 21. All this
indicated to the judge that the provisions of Chapter III are ‘uncompromisingly
collective’. So, too, are the guidelines prescribed by the Code of Good Practice
issued under the EEA. The court also noted that the enforcement mechanisms
provided by the EEA echo the distinction between Chapters II and III. The court
concluded that discrimination claims under s 10 and enforcement claims under
s 50(1)(a) ‘cannot operate in tandem’. It followed that Dudley also lacked locus
standi to approach the court for an order directing the City of Cape Town to prepare
and implement an employment equity plan.
The matter was finally decided in favour of the employer by the Labour Appeal
Court.118 That court found that Dudley was in essence complaining that the
municipality had not put her ahead of white candidates when choosing between
candidates. The court held that she was asking for the same advantage that whites
had been generally given under apartheid. However, she could not possibly complain
that she was being discriminated against by not being given a head start; on the
contrary, she was being treated equally. Since Dudley had not based her claim on
any other cause of action, such as an obligation imposed on the employer by
117
Dudley v City of Cape Town (2004) 25 ILJ 305 (LC).
118
In Dudley v City of Cape Town (2008) 29 ILJ 2685 (LAC).
500
collective agreement, the exception to her claim had been correctly upheld. This
means that ‘designated’ employees cannot rely on a right to be preferred as
individuals.
The Dudley ruling does not prevent individual designated employees or applicants
for employment from claiming that they were the victims of race discrimination.
However, in such cases, the applicant must prove that the decision of which they
complain was motivated by race. Makibinyane v Nuclear Energy Corporation of
SA119 is instructive in this regard. The applicant in that case applied for the post of
managing director of a newly formed subsidiary of the respondent. A white male
was appointed. Mr Makibinyane claimed that this indicated he was the victim of race
discrimination. However, it transpired that the white male was unanimously
appointed by a multiracial panel, of which there was only one white member,
himself a former MK soldier. Makibinyane was reduced to alleging that, while the
individual members of the panel may not have been racist, racism pervaded the
employer. The court was unimpressed with that argument. The judge pointed out that
institutions cannot be racist unless the individuals who act in their names are racist.
The court dismissed the claim because of Makibinyane’s ‘ambivalence and evasion’
when pressed to identify the person(s) responsible for the racism of which he
complained. As this case illustrates, a black candidate who is overlooked for a white
male must prove that the decision was motivated by racism. A mere statement by an
unsuccessful candidate that he is black and the other white is insufficient to prove
race discrimination.120
A number of defences are available to employers facing actions for alleged unfair
discrimination. The first line of defence open to the employer is to persuade the
court or arbitrator that the act or omission did not amount to discrimination at all.
That a candidate of one race group is preferred for appointment to a candidate of
another race does not necessarily imply that the candidate who has been overlooked
is a victim of discrimination. Where black candidates are appointed, the employer
may prove either that the preferred candidate was appointed on merit, or that
affirmative action was applied (see below). When a white male candidate is
appointed, the employer must rely only on the successful candidate’s superior
qualifications or experience.
The second possible defence arises when the discrimination complained of was
perpetrated by an employee. Section 60 of the EEA obliges employers to consult ‘all
relevant parties’ if an act of discrimination is brought to the employer’s attention. If
the employer fails to take such steps, the employee’s contravention is attributed to
the employer. However, the Act expressly provides that the employer is not liable
for the conduct of the employee if the employer can prove that it did ‘all that was
reasonably practicable’ to ensure that the employee would not contravene the Act.
The test prescribed by the EEA is less strict than that which applies in vicarious
liability cases.121
The third line of defence open to employers is to prove that, even if the act or
omission did amount to discrimination, it was not unfair. Discrimination is presumed
119
Makibinyane v Nuclear Energy Corporation of SA (2009) 30 ILJ 2731 (LC).
120
See Ibid (2009) 30 ILJ 2731 (LC).
121
See Grobler v Naspers Bpk 2004 (4) SA 220 (C) and the appeal against that judgment, Media24 Ltd v
Grobler 2005 (6) SA 328 (SCA).
501
unfair until the contrary is proved. The EEA provides two grounds by which this
presumption can be rebutted. Section 6(2) reads:
It is not unfair discrimination to—
(a) take affirmative action measures consistent with the purpose of this Act; or
(b) distinguish, exclude or prefer any person on the basis of an inherent requirement of a
job.
Section 6(2)(a) seeks to insulate affirmative action appointments against attack on the
basis of unfair discrimination by ‘non-designated’employees. However, the provision
sets certain limits to the ‘defence’ of affirmative action. To escape being branded unfair,
an affirmative appointment must be ‘consistent with the purposes’ of the EEA. The
preamble to the Act describes the purposes of the EEA as being to ‘promote the
constitutional right of equality and the exercise of true democracy’; to ‘eliminate unfair
discrimination in employment’; to ‘ensure the implementation of employment equity to
redress the effects of discrimination’; to ‘achieve a diverse workforce broadly
representative of our people’; to ‘promote economic development and efficiency in the
workforce’; and to ‘give effect to the obligations of the Republic as a member of the
International Labour Organisation’.
All this suggests that the benefits granted must be proportional to the goal of
achieving equality. The granting of extravagant benefits that disproportionately
enhance the positions of members of formerly disadvantaged groups at the expense
of others could conceivably go beyond the goals of the EEA. For example, an
employer who increased the wages of, say, black employees above those of their
white counterparts could not claim that this falls within the scheme of employment
equity.122 However, the goal of achieving a ‘broadly representative’ workforce makes
it very difficult for employees from formerly advantaged groups to claim that they
were unfairly overlooked for appointment to positions if the employer has preferred
a candidate from a formerly disadvantaged group. Section 6 of the EEA must be
read in the light of s 9 of the Constitution, which permits legislative and other
measures ‘designed to protect or advance persons, or categories of persons,
disadvantaged by unfair discrimination’.
It is insufficient for disappointed candidates from a formerly advantaged group
(which effectively means white males) to plead merely that they are more qualified
than a candidate from a designated group. In Stoman v Minister of Safety &
Security123 the High Court held that the Constitution promotes, not mere formal
equality, but substantive equality. This includes affirmative action measures
sanctioned by legislation such as the EEA and the Promotion of Equality and
Prevention of Unfair Discrimination.124 That goal, according to the court, derives its
justification from the fact that, unless remedied, the effects of past discrimination
‘may continue for a substantial time and even indefinitely’. The only issue, said the
court, is whether the particular affirmative action measure was indeed ‘designed to
protect and advance’ persons or categories of persons who were previously
disadvantaged—there must, according to the Constitution, be ‘a rational
122
Although the case did not turn on this point, the court made no attempt to conceal its astonishment at the
fact that an affirmative action appointee to a post of lecturer was paid more than his head of department: in
McInnes v Technikon Natal (2000) 21 ILJ 1138 (LC).
123
Stoman v Minister of Safety and Security 2002 (3) SA 468 (T), (2002) 23 ILJ 1020 (T).
124
Act 4 of 2000.
502
connection’ between the affirmative measures and the aims which they are designed
to achieve.
When, and under what circumstances, can such a rational connection be found
lacking? In Public Service Association (PSA) v Minister of Justice125 the High Court
held, under the interim Constitution, that a rational connection was lacking when
affirmative action resulted in the appointment of applicants whose manifest
unsuitability would compromise another constitutional imperative that rested on the
public service: to promote efficiency. In the Stoman case, decided under the final
Constitution, the High Court was prepared to accept the finding in PSA that
affirmative action cannot justify the appointment of an applicant who is incapable of
doing the work attached to the post. However, the court was not prepared to go so
far as to accept that affirmative action can therefore be applied only in cases where
applicants from previously disadvantaged groups have qualifications and attributes
‘broadly’ comparable to those of better qualified or more experienced white males.
Such a restriction, said the court, would frustrate the goal of equality.126
Apart from a fleeting reference to the promotion of economic development and the
efficiency of the workforce in its preamble, the EEA does not expressly deal with
how efficiency must be reconciled with representivity when employers strive to
promote the latter goal. Nor does that Act indicate how much weight is to be
accorded the two goals when they clash. This issue arose in Coetzer v Minister of
Safety & Security,127 the first claim by disappointed candidates for employment to be
heard under the EEA. The applicants were highly trained and experienced inspectors
in the bomb squad of the SA Police Services. Because they were white males, they
could apply only for certain posts open to ‘non-designated’ employees in the squad.
When these were filled, they applied for ‘designated’ posts. Their applications were
rejected even though there had been no applications from members of designated
groups.
Before Coetzer, there was no precedent on how a court should handle situations in
which an employer overlooks qualified and suitable personnel from non-designated
groups when there was no competition at all from members of designated groups. In
Coetzer, the Labour Court was called upon to decide that issue within the framework
of the EEA. The judge observed that ‘the Constitution requires the common law and
Acts of Parliament giving expression to the Constitution to enhance the values and
ideals set out in the Constitution’. The Constitution also states that the objectives of
the Police Service are to ‘prevent, combat and investigate crime, to maintain public
order, to protect and secure the inhabitants of the Republic and their property, and to
uphold and enforce the law’. The Constitution also requires that national legislation
must ‘enable the police service to discharge its responsibilities effectively’. The
question was whether the efforts of the SAPS to promote representivity in the
explosives unit were rationally balanced with efforts to change the demographics of
its staff. The problem confronting the SAPS was that it had based its defence solely
on the claim that it was trying to implement affirmative action; it had not addressed
the efficiency requirement at all. Indeed, a number of its own witnesses had
confirmed that it would be reasonable and rational to appoint the applicants to the
125
Public Service Association (PSA) v Minister of Justic 1997 (3) SA 925 (T), (1997) 18 ILJ 241 (T).
126
See also Visser v Minister of Justice & Constitutional Affairs (2004) 25 ILJ 1417 (T).
127
Coetzer v Minister of Safety and Security 2003 (3) SA 368 (LC), (2003) 24 ILJ 163 (LC).
503
vacancies concerned. Apart from this evidence, it was plain to the court that the
National Commissioner’s refusal to appoint the applicants to the vacancies was
inherently irrational. When he had created the posts, the National Commissioner
must have been satisfied that they were necessary for the effective functioning of the
explosives unit. Nothing had changed since. In short, said the court, the
Commissioner had entirely overlooked his constitutional duty to ensure that the
service remained efficient.
Solidarity obo Barnard v SA Police Service128 was similar to Coetzer. Captain
Barnard was a white female officer of exceptional ability. She applied twice for
promotion, but on neither occasion was the post in question filled, even though on
the second occasion there were two suitable black candidates. The court rejected the
employer’s claim that white female officers were ‘over-represented’ in the division
concerned, and that it was merely implementing its affirmative action plan, and
agreed with Barnard’s submission that leaving the post vacant could not possibly do
so. The SAPS was ordered to promote her.
Cases like Coetzer and Barnard confirm that there are limits to the extent to
which a plea of affirmative action can serve as a defence to an action for unfair
discrimination against white employees. In the public service at least, the goal of
representivity must be pursued rationally. Rationality cannot be served when a public
authority fails to make appointments at all simply because there are no takers for
positions in essential services from the intended beneficiaries of affirmative action.
These judgments may also confirm that discrimination becomes unfair to members of
non-designated groups where an employer disadvantages them in the name of
affirmative action in circumstances where members of non-designated groups do not
benefit. In the public service at least, the irrational pursuit of the goal of
demographic ‘representivity’ at the expense of the public also renders the
discrimination unfair. But the courts will not simply assume that the appointment of
an ‘affirmative’ candidate, perhaps less qualified than a candidate from an
‘over-represented’ group, will necessarily adversely affect service delivery.129 That
claim must, if not self-evident, be proved.
Another question is how far the skills, experience or a qualification gap must be
extended before the appointment of a less qualified or experienced black candidate
becomes ‘irrational’ and impeachable. According to Stoman, the gap must be
considerable. The court rejected the argument that affirmative action can only be
fairly applied when candidates have ‘broadly the same qualifications’; that, said the
court, would detract from the goal of true equality. However, the court did not go so
far as to hold that differences in qualifications are never relevant when determining
whether a racially determined choice of candidate is fair. The court merely
recognised that an affirmative action appointment is not necessarily unfair merely
because the candidate is formally less qualified than candidates from the previously
advantaged group. This, said the court, is because the legislature has decided that a
representative public service is a good in itself. However, the court accepted that
some balance had to be struck between the goals of equality and efficiency, and
decisions to appoint affirmative candidates must be rationally defensible. The
128
Solidarity obo Barnard v SA Police Service (2010) 31 ILJ 742 (LC).
129
See, for example, Solidarity obo Louw v SA Police Service [2012] 6 BLLR 637 (LC).
504
appointment to responsible positions of people who are wholly unqualified, or less

than suitably qualified, or incapable ‘cannot be justified’. On this test, the focus
shifts from the merits of the disappointed candidate to the demerits of the appointed
candidate. A complaint by the former will never be justified unless the latter is
‘wholly’ or ‘less than suitably’ qualified, or demonstrably incapable of doing the
work attached to the job concerned. In all but glaringly obvious cases, the hurdle
thus created for the disappointed candidate is virtually insurmountable.130
Another limitation to the s 6(2)(a) defence is that the beneficiaries must have been
disadvantaged by unfair discrimination. ‘Disadvantaged’ in this context means that
the persons concerned were denied opportunities and benefits accorded others in the
past. Furthermore, the disadvantage must have occurred as a result of past
discrimination—that arising out of personal hard luck will not suffice. While in the
South African context the obvious and major cause of disadvantage in the past was
discriminatory apartheid legislation aimed against blacks in general, the measures
envisaged by s 6 need not be limited to correcting disadvantages caused by formal
legislation. White women, for example, have arguably been the victims of informal
discrimination in selection and promotion. The same might be said of other groups,
such as homosexuals and the disabled. However, the beneficiaries of affirmative
action are defined as groups; it is immaterial whether a designated employee happens
not to have been personally disadvantaged. This was confirmed in Stoman: the
emphasis is on the group or category of persons, not the individual; the aim of
affirmative action is not to reward individuals, but to advance the category of persons
to which they belong. It will accordingly not avail a complainant to prove that the
individual beneficiary cannot conceivably be described as disadvantaged.
Conflict may arise between members of designated groups as to who is the most
deserving of affirmative treatment. In such cases, it seems, black candidates may be
preferred.131 However, in doing so, the employer must follow its policy. For
example, in Lotter v SA Police Service132 a white female police officer, who received
the highest rating from the selection panel, was overlooked in favour of a black male
officer. The employer claimed that it was merely seeking to correct a scarcity of
black males at the level in question. The arbitrator noted that, in terms of the SAPS
policy, affirmative action could only be taken into account when two candidates
receive equal scores. The selection panel had misinterpreted the policy, and
perpetrated an unfair labour practice. The Namibian Labour Court has held that,
other things being equal, candidates falling within more than one designated group
(eg black females) should be given preference over candidates falling into only one
(eg black males).133
It has also been held that when employees are discriminated against by affirmative
action measures, their employers must be able to show that they acted in terms of a
130
See, for example, Alexandre v Provincial Administration of the Western Cape Department of Health (2005)
26 ILJ 765 (LC).
131
See Fourie v Provincial Commissioner of the SA Police Service (North West Province) (2004) 25 ILJ 1716
(LC), in which the court held that in choosing between members of designated groups (in this case between a
white woman and a black male) the employer is entitled to take into account the degree of past disadvantage. In
Motala v University of Natal 1995 (3) BCLR 374 (D), the court held that it was not unfair to restrict the number
of Indian students at medical school on the basis of a quota that favoured blacks.
132
Lotter v SA Police Service (2005) 26 ILJ 578 (BCA).
133
Eilo v Permanent Secretary of Education (2009) 30 ILJ 2806 (LCN).
505
coherent and defensible plan. This was one of the bases on which the Minister was
held to have acted unfairly in PSA v Minister of Justice,134 in which the criteria
adopted by the Department of Justice to promote blacks and women before highly
experienced white men were stigmatised by the court as irrational. The same
approach was adopted by the arbitrator in MWU obo Van Coller v Eskom,135 in
which a white woman had been overlooked for promotion in favour of a ‘coloured’
woman although she had been recommended as the top candidate by a selection
committee. The arbitrator held that it is not enough for an employer to rely upon a
‘generalised intention’ (breë bedoeling) to advance or protect persons or groups or
categories of persons; the employer must rely on standards that have been developed
for that purpose. When affirmative action is applied, the rights of other members of
the community must not be ‘undermined’. Efficiency must not be compromised. The
Labour Court upheld the award on review.136
The court reached a similar conclusion in Independent Municipal & Allied
Workers Union v Greater Louis Trichardt Transitional Local Council,137 in which
the only reason cited for the appointment of a black man to the position of town
treasurer was that he was black. However, the successful candidate had received a
lower score during the pre-appointment test than the other candidates. The court held
that an employer can only rely on affirmative action as a defence if it has an
affirmative action policy. In the absence of such a policy, failure to explain why an
apparently weak candidate had been appointed gave rise to the presumption that
there was no justification for the appointment. The court also observed that an
employer owed it to other previously disadvantaged candidates to ensure that
appointments were made from the best among them.138
A dissenting vote on this issue was cast by the Labour Court in Gordon v
Department of Health, KwaZulu-Natal.139 The court held that to lay down a
requirement that affirmative action can be applied only when the employer has a plan
would reduce the constitutional right to equality from a substantive right to a merely
formal right. While the court acknowledged that plans were not irrelevant, the proper
test was whether there was a rational connection between the decision to appoint or
not to appoint; a plan facilitates proof of such a connection. Even without a plan, a
decision to appoint a person for the purposes of promoting affirmative action may be
rational and defensible. The decision to appoint a black man rather than a white man
to the post in question, even though the former had less experience than the latter,
was perfectly rational when measured against the constitutional imperative to
promote the advancement of members of formerly disadvantaged groups.140
Gordon was ultimately overruled by the Supreme Court of Appeal.141 That court
held that Gordon had obviously been discriminated against on the basis of his race.
134
See note 125 above (T).
135
MWU obo Van Coller v Eskom [1999] 9 BLLR 1089 (IMSSA).
136
Eskom v Hiemstra NO (1999) 20 ILJ 2362 (LC). See now also Coetzer v Minister of Safety & Security 2003
(3) SA 368 (LC).
137
Independent Municipal and Allied Workers Union v Greater Louis Trichardt Transitional Local Council
(2000) 21 ILJ 1119 (LC).
138
See also Public Service Association of SA on behalf of Helberg v Minister of Safety & Security (2004) 25
ILJ 2373 (LC).
139
Gordon v Department of Health, KwzZulu-Natal (2004) 25 ILJ 1431 (LC).
140
See also Willemse v Patelia NO (2007) 28 ILJ 428 (LC) at 443G.
141
Gordon v Department of Health, KwaZulu-Natal 2008 (6) SA 522 (SCA), (2008) 29 ILJ 2535 (SCA).
506
Plans are vital because without them affirmative appointments cannot be rationally
connected with the constitutional imperative of promoting equality. Ad hoc and
random actions are incapable of meeting that objective. The court held that properly
formulated plans ‘go a long way’ towards meeting the requirement of rationality.142
The defence of affirmative action may not hold, even where an employer has an
affirmative action policy in place. In McInnes v Technikon Natal143 the court asked
whether the appointment of a black candidate rather than a white female applicant
who had been recommended for the position was in accordance with the Technikon’s
policy. The court found that the appointment was not in accordance with the plan,
and accordingly amounted to an unfair labour practice against the white candidate.
The Technikon had not only ignored the requirements of its own policy by
disregarding the respective merits of the candidates, it had also decided to pay the
successful candidate a higher salary than his head of department. This flew in the
face of the Technikon’s policy, which required the creation of a corporate culture of
‘mutual acceptance, understanding, trust and respect’ and emphasised the need to
‘promote transparency and integrity and to ensure that public funds are optimally and
prudently used’.
It is also possible that, unlike the EEA, an employer’s equity plan may contain a
‘sunset clause’—ie indicate targets beyond which merit again becomes the criterion.
The Labour Court held the employer to such a target in Reynhardt v University of
South Africa,144 in which a highly qualified academic with 35 years’ service was not
reappointed dean. The successful candidate was a much younger and less qualified
‘coloured’ academic. The university’s case floundered when it was established that
its equity plan set demographic targets in respect of specific operational areas, and
that there were already more black deans than were required by its equity plan. The
judgment was upheld on appeal.145
It is also arguable that an affirmative action programme cannot be abused to create
a new group hegemony—protection will fall away when the effects of past
discrimination have been removed and equality achieved. Nor, it is suggested, is an
employer engaged in affirmative action as understood in the EEA if it makes token
appointments from formerly disadvantaged groups merely to promote its image or
gain access to markets. The use of the word ‘equal’ has been held to denote that the
interests of the beneficiaries are not to be considered in vacuo, but with due regard
to the rights of others and the interests of the community, and to the possible
disadvantage that the targeted persons or groups might suffer.146
Section 6(2)(b) of the EEA also provides that it is not unfair to ‘distinguish,
exclude or prefer any person on the basis of an inherent requirement of a job’. The
legislature has left it to the labour courts to fashion a test for establishing when the
various ‘arbitrary grounds’ listed in s 6(1) can be said to be related to an inherent
requirement of a job.
142
See also City of Tshwane Metropolitan Council v SALGBC (2011) 32 ILJ 2493 (LC).
143
McInnes v Technikon Natal (2000) 21 ILJ 1138 (LC).
144
Reynhardt v University of South Africa (2008) 29 ILJ 725 (LC).
145
University of SA v Reynhardt (2010) 31 ILJ 2368 (LAC).
146
Public Servants Association of SA (note 125 above).
507
The word ‘inherent’ suggests that possession of a particular personal characteristic

(for example, being male or female, speaking a particular language, or being free of a
disability) must be necessary for effectively carrying out the duties attached to a
particular position. The test must of necessity be relative. The English courts have held
that discriminatory employment criteria are defensible if they correlate on objective
grounds with a ‘real need of the enterprise’ and if they are necessary to satisfy that need.
One factor is customer preference. However, market preferences are a weak
consideration—a United States court held that male customers’ alleged preference for
female airline stewards was insufficient to justify limiting such positions to women.147
The Constitutional Court also dismissed an airline’s reliance on customer reactions to
HIV-infected cabin staff.148 An employer’s decision to limit a particular job to
applicants from a group identified by one of the listed ‘arbitrary grounds’ is suspect
when the justification for the limitation rests on nothing more than a broad
generalisation regarding some purported attribute of that group—for example, that only
males or younger people possess sufficient physical strength for certain work.
In cases where otherwise suitable applicants have been turned down for reasons that
would otherwise amount to unfair discrimination, the employer must prove that the
person was indeed incapable of performing the work for which he or she had applied.
This is well illustrated by Hoffmann v South African Airways.149 The SAA contended
that Hoffman was incapable of performing the work of a flight attendant because he was
HIV-positive. The High Court agreed.150 However, the Constitutional Court held on
appeal that the airline had failed to prove that the appointment of Hoffmann as a cabin
attendant would pose any significant threat to passengers. While conceding the
argument that the economic needs of the enterprise were important, the court held that
the constitutional right of HIV-positive people to be protected against ‘stigmatisation
and prejudice’ was of greater social value.151 The Labour Court reached a similar
conclusion in Independent Municipal & Allied Workers Union v City of Cape Town.152
In that case, the municipality had imposed a blanket ban on the employment of
insulin-dependent diabetics as fire fighters. The court found the municipality’s argument
that the ban was in the interest of diabetics themselves ‘paternalistic’.
Section 9 of the EEA extends ss 6, 7 and 8 to applicants for employment. This has
considerable significance for the methods by which employers recruit personnel. Under
the common law and the 1956 LRA, employers had a free hand in deciding whom to
appoint, subject only to statutory qualifications for particular jobs. Applicants for
employment were not protected by legislation. It was therefore possible for employers to
exclude candidates on any ground they pleased. The EEA now permits applicants for
employment to challenge their non-selection on the ground that they have been
discriminated against. Discrimination against applicants for employment may be direct
or indirect. For example, members of specific groups
147
Diaz v Pan American World Airlines Inc 442 F2d 1273 (9th Circ) (1981), cited in Du Toit et al The Labour
Relations Act of 1995 (1996) 404 fn 292.
148
Hoffmann v South African Airways 2001 (1) SA 1 (CC).
149
Ibid.
150
Hoffmann v South African Airways 2000 (2) SA 628 (W), (2000) 21 ILJ 891 (W).
151
The SAA was ordered to take Mr Hoffmann into service.
152
Independent Municipal & Allied Workers Union v City of Cape Town (2005) 26 ILJ 1404 (LC).
508
may be denied appointment because advertisements for posts do not come to their
attention. In England, a Code of Practice issued under the Race Discrimination Act
requires employers not to restrict advertisements to areas populated predominantly by
certain groups or to publications unlikely to reach particular racial groups. The RDA
also forbids advertising qualifications unlikely to be held by members of some
groups. Similarly, the Sex Discrimination Act prohibits publication of advertisements
that impliedly exclude members of one sex, eg ‘postman’ or ‘waitress’. In the United
States, excluding women from jobs because they were of reproductive age was held
to be unconstitutional because the same did not apply to fertile men.153
Selection criteria, being confidential to committees or individuals, are more
difficult to monitor. However, criteria may indicate an intention to discriminate
because they seek to solicit information not immediately relevant to a candidate’s
abilities, eg questions concerning a woman’s intention to have children or questions
relating to a person’s disabilities or private habits or beliefs. In the United States,
questions regarding a person’s health are prohibited at the interview stage, but may
be asked after a conditional offer has been made. Questions regarding religious belief
are forbidden in Germany. Questionnaires or screening tests that may be more
difficult for members of a particular group to complete are also disallowed.
Recruitment and selection procedures and practices may be regulated by codes of
good practice issued under the EEA. The Labour Court has held that requiring
employees to disclose their HIV status constitutes unfair discrimination.154
The EEA also provides that when determining whether an applicant is suitably
qualified for the job, the employer must take into account not only formal
qualifications but also ‘prior learning’, ‘relevant experience’ or ‘the capacity to
acquire, within a reasonable time, the ability to do the job’.155 However, when
making its decision, the employer is not permitted to discriminate against the
applicant solely on the ground of his or her lack of relevant experience.156
Where an employer’s affirmative action policy provides that preference will be
given to members of particular race groups, it is nevertheless unfair to exclude
applicants from other race groups entirely from consideration.157
The rule against discrimination in wages flows from the premise that all
employees doing the same work should be similarly rewarded. ‘Reward’ in this
context must be given a wide meaning, in line with the definition of ‘remuneration’
in the LRA, ie ‘any payment in money or kind, or both in money and kind, made or
owing to any person in return for that person working for any other person,
including the State’. Although there was no express prohibition against
discriminatory wage policies in the 1956 LRA, the labour courts have long set their
faces against them.158 The Labour Court has taken the same view under the present
Act.159 The development of the case law before the promulgation of the EEA
153
United Auto Workers v Johnson Controls, Inc 111 SC 1196 (1991).
154
See Allpass v Mooikloof Estates (Pty) Ltd t/a Mooikloof Equestrian Centre (2011) 32 ILJ 1637 (LC).
155
Section 20(3).
156
Section 20(5).
157
IMATU obo Gounden v eThekweni Municipality: Metro Electricity [2003] 10 BALR 1101 (SALGBC).
158
SA Chemical Workers Union v Sentrachem Ltd (1988) 9 ILJ 410 (IC); Chamber of Mines of SA v Council of
Mining Unions (1990) 11 ILJ 52 (IC).
159
Leonard Dingler Employee Representative Council v Leonard Dingler (Pty) Ltd (1998) 19 ILJ 285 (LC).
509
therefore clearly indicates that any wage differentiation, or different conditions of

service, among workers based solely on race is inherently unfair.
The manner in which claims of wage discrimination were dealt with under the
repealed item 2(1)(a) of the definition of unfair labour practice provides some
guidance on how such claims are likely to be dealt with under the EEA. Judgments
in cases decided under item 2(1)(a) indicate that it is not enough for an employee
who alleges wage discrimination merely to say, for example: ‘I am black and am
paid less than X, who is white.’160 The employee must, at least, show that the
colleagues whom the complainant cites as comparators are performing work of a
similar nature, and that there is no rational explanation for the difference in salary.
Discrepancies in salary may arise from past discrimination. In Louw v Golden
Arrow Bus Services161 the applicant alleged that the current disparity between his
salary and that of a white colleague arose from the fact that the white person was
employed at a higher salary than those of his ‘coloured’ colleagues when he was
appointed, and that the difference had grown exponentially since then. The court
rejected this claim on the facts. It found that Louw had failed to prove that the work
then performed by him and his white colleague was comparable. However, the
judgment indicates that had this been so, Louw would probably have won his case.
Mangena v Fila SA (Pty) Ltd162 raised a further issue: whether employees should
claim discrimination on the basis of unequal pay for equal work, or on the basis of
unequal pay for work of equal value. If, as with the case here, an employee claims
he is discriminated against because he earns less than a colleague performing work
of equal value, the employee must prove that the work is in fact of equal value to
the employer. The court noted that this requires more than the applicant’s say-so.
Expert evidence must be led to prove that the work is indeed of comparable value
having regard to the degree of skill, physical and mental effort and responsibility of
the respective posts. The application failed because this had not been done, and also
because the applicant had failed to prove that the difference in salary was attributable
to discrimination on any prohibited ground.
An employer still has the right to reward employees unequally on the basis of
differences in qualification, skills and productivity.163 However, the basis of
differentiation must be rational and objective.164 It is also permissible to pay
employees doing the same work different wages in terms of agreements arising from
collective bargaining with different unions.165
In the area of wages and cash benefits the problem of determining a rational basis
for differentials is complex. The starting point must be the principle of equal pay for
equal work. People complaining of discrimination in this area must be able to prove
that they are not receiving dues accorded to others doing like work. This raises the
160
TGWU (note 114 above); Abbott v Bargaining Council for the Motor Industry (Western Cape) (1999) 20
ILJ 330 (LC); Louw v Golden Arrow Bus Services (Pty) Ltd (2000) 21 ILJ 188 (LC).
161
Louw (note 160 above).
162
Mangena v Fila SA (Pty) Ltd (2010) 31 ILJ 662 (LC).
163
Mthembu v Claude Neon Lights (1992) 13 ILJ 422 (IC); Transport & Workers Union v Bayete Security
Holdings (1999) 20 ILJ 1117 (LC).
164
The European Court of Justice has held that a difference in pay can be justified only where it relates to an
objective criterion which corresponds with a real business need: See Bilka-Kaufhaus v Weber van Haus [1986]
IRLR 317.
165
SA Union of Journalists v South African Broadcasting Corporation (1999) 20 ILJ 2840 (LAC).
510
question: with whom must the comparison be made—with employees in the same
sector of the industry (ie some general norm) or with employees employed by the
same employer?166
The EEA relieves both employers and the Labour Court of some of the burden of
determining whether income differentials are fair. Section 27 provides that all
‘designated employers’167 must submit a statement on the remuneration and benefits
paid to employees in the occupational categories and levels of their workforces to
the Employment Conditions Commission established under the BCEA.168 Where
‘disproportionate’ income differentials are reflected in the statement (what is
disproportionate will presumably be determined by the Commission), the employer
must take measures to reduce ‘progressively’ such differentials ‘subject to guidance
given by the Minister’.169
Apart from the development of the law relating to sexual harassment, the struggle
for women’s rights has not been significantly reflected in litigation in the labour
courts. As suggested above, a woman who is paid less than a man for doing the
same work will have grounds for an unfair labour practice action. So, too, will a
woman denied other benefits, such as a housing subsidy, on the basis of her sex or
marital status.170
Racially segregated work facilities were required by law in the apartheid era, and
may still survive in some workplaces, even if the segregation is ‘indirect’. The issue
of segregated facilities occasionally surfaced in the industrial court, mainly at the
instance of right-wing unions whose members objected to the admission of blacks to
formerly ‘whites-only’ facilities. Not surprisingly, the court was unsympathetic to
such actions.171 However, it dismissed a claim that the reservation of toilets for
managerial staff was an instance of racial discrimination, even though the
respondent’s management was overwhelmingly white.172 It is quite possible that this
may now be deemed to constitute indirect discrimination.
Medical testing of employees or applicants for employment is prohibited, unless
permitted by legislation or ‘justifiable in the light of medical facts, employment
conditions, social policy, the fair distribution of employee benefits or the inherent
requirements of a job’.173 In addition, testing for HIV is permissible only if
authorised by the Labour Court.174 Special application must therefore be made for
testing for this condition. However, the Labour Court has held that employers need
166
Under United Kingdom equal pay legislation the comparison must be drawn with employees actually
employed by the same or associated employers, including the complainant’s predecessor or, arguably, successor.
167
For the meaning of this term, see s 1 of the EEA. Designated employers include employers with more than
50 employees, or those with an annual turnover exceeding that of a ‘small business’ as defined in Schedule 4 to
the EEA, municipalities, organs of state, and those employers designated as such in a collective agreement.
168
See Chapter 9 of the BCEA.
169
Section 27(2) of the EEA.
170
See Association of Professional Teachers v Minister of Education (1995) 16 ILJ 1048 (IC).
171
See, for example, SA Yster, Staal & Verwante Nywerhede Unie v Consol Glass (Edms) Bpk (1991) 2 (1)
SALLR 48.
172
Manage v Donn Products (Pty) Ltd (1993) 14 ILJ 455 (IC).
173
Section 7(1).
174
See, for example, Joy Mining Machinery, a division of Harnischfeger (SA) (Pty) Ltd v NUMSA (2002) 23
ILJ 391 (LC).
511
not apply for permission to conduct tests for HIV/AIDS if the employees have
consented and the tests are voluntary and anonymous.175
Psychological testing and ‘other similar assessments’ of employees or applicants is
also prohibited unless the test or assessment has been shown to be scientifically valid
and reliable, and provided it can be ‘fairly applied to all employees’ and is not
‘biased against any employee or group’.176
23.12 AFFIRMATIVE ACTION

The chapter of the EEA setting out the ‘positive measures’ designated employers are
compelled to take is expressly entitled ‘affirmative action’. The EEA is the only statute
to use this term. Affirmative action is a policy designed to permit a measure of
discrimination in favour of employees disadvantaged by discrimination in the past.
Although the Constitution and the EEA prohibit unfair discrimination, the Constitution
expressly states that measures designed to remove the effects of past discrimination are
not in themselves unfair. The acid test for affirmative action is when it ceases to be fair.
The EEA contains no ‘sunset clause’. When affirmative action has reached its goal is
therefore for the politicians to decide. In the meantime, the goal is to ensure that the
nation’s working population reflects the demographics of the population as a whole.
All employers with more than 50 employees, or which have annual turnovers equal to
or above the annual turnovers for small businesses of their class,177 municipalities,
organs of state, and those designated as such by collective agreement must implement
affirmative action measures for people from designated groups.178 This entails
consulting employees, conducting an analysis of employment policies, practices,179
procedures and the ‘working environment’ to identify ‘employment barriers’, drawing
up an employment equity plan and reporting thereafter to the director-general of the
Department of Labour on progress made in implementing the plan.180
Affirmative action is defined as ‘measures designed to ensure that suitably qualified
people from designated groups have equal opportunities and are equitably represented in
all occupational categories and levels in the workforce of a designated employer’.181
Affirmative action plans may not therefore apply only to the bottom rungs of the
organisation’s hierarchy.
The affirmative action plan must be aimed at achieving ‘reasonable progress’ towards
employment equity, which in this context means fair representation of members of
175
Irvin & Johnson Ltd v Trawler & Line Fishing Union (2003) 24 ILJ 565 (LC) and PFG Building Glass
(Pty) Ltd v CEPPWAWU (2003) 24 ILJ 974 (LC).
176
Section 8 of EEA.
177
Section 1, definition of ‘designated employer’. The applicable turnovers are: agriculture, R2 million;
community, social and personal service, catering, accommodation and ‘other trade’, R5 million; mining and
quarrying, R5,5 million; manufacturing, electricity, gas and water, transport, storage and communications,
R10 million; retail, motor trade and repair services, R15 million; wholesale trade, commercial agents and allied
services, R25 million.
178
Section 13(1). Employers not otherwise qualifying may apply to have themselves designated.
179
‘Employment policy or practice’ is widely defined as including recruitment procedures, advertising and
selection criteria; the appointment process; job classification and grading; remuneration, employment benefits
and terms and conditions of employment; the working environment and facilities; training and development;
performance evaluation; promotion, transfer and demotion; disciplinary measures and dismissal.
180
Section 13.
181
Section 15(1).
512
designated groups—ie demographic equity.182 The plan must state the objectives to be
reached during each year and the affirmative action measures to be adopted. These are
the measures that will identify and eliminate employment barriers that adversely affect
people from designated groups, measures designed to achieve ‘further diversity in the
workplace based on equal dignity and respect for all people’, and making ‘reasonable
accommodation’183 for them to ensure that they ‘enjoy equal opportunities and are
equitably represented in the workforce’. These measures include their retention and
development.184 The plan must also state the numerical goals designated to achieve
equitable representation within various occupational levels and categories and the
‘strategies’ intended to achieve these goals, as well as the duration of the plan, which
may not be shorter than one year or longer than five years. The plan must also include
measures that will be taken for enforcement,185 monitoring and dispute resolution.
Employment equity plans cannot be produced unilaterally. Attempts must first be
made to consult and attempt to reach agreement with any representative trade union,
workplace forum or, in the absence of a recognised trade union or workplace forum,
with the employees or their nominees, on the conducting of the analysis to identify
employment barriers, the preparation of the employment equity plan, and the report on
its implementation.186 During consultation employers must disclose ‘all relevant
information that will enable the parties to consult effectively’. In this respect, the
provisions of s 16 of the LRA apply.187
Designated employers with fewer than 150 employees were initially given 12 months
from the date of implementation of the EEA (9 August 1999) to submit reports on the
progress of their employment equity plans to the director-general, while those with more
than 150 workers were given six months. After submission of the first report, smaller
employers are required to submit follow-up reports every two years, and larger ones
every year on the first working day of October.188 Public companies must include their
employment equity report in their published annual financial report.189 Organs of state
must table their reports in Parliament.190 All employers must display their most recent
182
Section 20. ‘A Code of Good Practice: Preparation, Implementation and Monitoring of Employment Equity
Plans’ was published in GN R1394 dated 23 November 1999.
183
‘Reasonable accommodation’ means ‘any modification or adjustment to a job or to the working
environment that will enable a person from a designated group to have access to or participate or advance in
employment’ (s 1).
184
Section 15(2). The word ‘retaining’ appears to be intended to deal with situations where affirmative action
plans might be upset by the application of LIFO in a retrenchment exercise.
185
Every designated employer must assign one or more ‘senior managers’ to take responsibility for monitoring
and implementing the affirmative action plan, and take reasonable steps to ensure that they do so. It is, however,
the employer, not the responsible manager, that is responsible for any breaches of the Act. See s 24.
186
Sections 16 and 17.
187
Section 16 of the LRA requires disclosure of all relevant information that will allow the consulting union to
exercise its functions in terms of s 14, including assisting in grievance and disciplinary proceeedings, and
monitoring the employer’s compliance with legislation and collective agreements.
188
Section 21.
189
Section 22(1).
190
Section 22(2).
513
reports in prominent places accessible to all employees, as well as any compliance

orders or court orders that may have been issued in respect of them. The plan itself must
also be available on request to all employees.191
The first level of policing is the workforce itself. Any employee may bring alleged
contraventions of the EEA to the attention of the employer, another employee, any trade
union, workplace forum, labour inspector, or the director-general of the Employment
Conditions Commission.192 Labour inspectors appointed under the BCEA may enter and
inspect employers’ properties and documents, and they are responsible for ensuring that
the employer has consulted with employees as required, conducted the pre-equity plan
analysis, prepared its plan and is implementing it, has submitted and published its
reports, set up the necessary managerial infrastructure, and informed its employees of
progress.193 Should employers be found not to have complied with these requirements,
labour inspectors must request a written undertaking that they will do so. If an employer
fails to give such an undertaking, the labour inspector may issue a ‘compliance order’
setting out inter alia the steps the employer must take and when, and the maximum fine,
if any, that can be imposed if the employer fails to comply.194 If the employer does not
heed the compliance order within the prescribed period, the director-general may apply
to have it made an order of the Labour Court.195
The EEA operates by a mixture of carrot and stick. The carrots are the possibility of
an award by the Employment Equity Commission that recognises an employer’s
achievements,196 and being favoured when it comes to the awarding of state contracts.
The sticks are that an employer will not be given state contracts unless, when tendering,
it is able to furnish a certificate stating that it is complying with the Act.197 The Act
specifically states that failure by an employer to comply with its provisions is sufficient
ground for rejection of any tender, or for the cancellation of an existing agreement.198
The employer is liable for contraventions of the Act. If an employee so requests, the
employer must, after consultation with the affected parties, take steps to ensure that the
Act is complied with. However, if the employer can show that it took reasonable steps to
prevent further contraventions, it will be exempt from liability.199 The EEA provides for
191
Section 25.
192
The powers and functions of the Commission for Employment Equity are set out in Chapter IV of the Act.
Its functions are to advise the Minister on Codes of Good Practice, to make awards in recognition of
achievements under the Act, and to conduct research. Employees are protected against victimisation if they
exercise their right to report the employer: s 51.
193
Section 36.
194
Section 37. Such compliance orders must be prominently displayed in the workplace.
195
Section 37(6).
196
Section 30(2)(a).
197
Section 53. These certificates will be issued on application by the Minister of Labour and are valid for one
year.
198
Section 53(4).
199
Section 60. This provision could well change the way in which employers react to harassment in the
workplace. Refusal to dismiss the culprit may, for example, result in his or her offence being imputed to the
employer.
514
fines ranging from a maximum of R500 000 for the first contravention of the duties
related to consultation over drafting and implementation of equity plans as well as the
failure to publish prescribed details,200 to a maximum of R900 000 where there have
been four previous contraventions of the same provision in three years.201
200
Schedule 1.
201
Fines are imposed by the Labour Court on application by the Department of Labour. However, the court
has made it clear that it will not reflexively impose the maximum penalty in each case. The grounds on which the
amount of fines must be assessed are set out in Director-General, Department of Labour v Win-Cool Industrial
Enterprise (Pty) Ltd (2007) 28 ILJ 1774 (LC) and Director-General of the Department of Labour v Jinghua
Garments (Pty) Ltd (2007) 28 ILJ 880 (LC).
515
Chapter Twenty-four
Environment1
by Michael Kidd*
24.1 Approaches to environmental rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 516

24.2 Constitutional environmental rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 517
(a) Section 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 518
(i) Section 24(a): an environment not harmful to health or
well-being . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 518
(ii) Section 24(b): to have the environment protected through
legislative and other measures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 522
(b) Relationship between s 24 and other rights . . . . . . . . . . . . . . . . . . . . . . . 525
(c) Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 527
(d) Realisation of the s 24 right . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 528
24. Environment
Everyone has the right—
(a) to an environment that is not harmful to their health or well-being;
and
(b) to have the environment protected, for the benefit of present and
future generations, through reasonable legislative and other
measures that—
(i) prevent pollution and ecological degradation;
(ii) promote conservation; and
(iii) secure ecologically sustainable development and use of
natural resources while promoting justifiable economic and
social development.
24.1 APPROACHES TO ENVIRONMENTAL RIGHTS

It is possible to identify essentially two kinds of environmental rights: the rights of
humans to a safe and healthy environment (the anthropocentric approach), and the rights
of the environment itself not to be degraded. The latter approach can broadly be called
the biocentric approach to environmental rights.2 This approach includes different
viewpoints. The first is the view that ‘the richness and diversity of life [have] values in
themselves and . . . humans have no right to reduce these resources, except to satisfy
* Professor of Law, University of KwaZulu-Natal.

1
Parts of this chapter are based on M Kidd Environmental Law (2011) ch 2.
2
See L Feris ‘Constitutional Environmental Rights: An Under-utilised Resource’ (2008) 24 SAJHR 29 at
30–32.
516
Environment 24.1–24.2
their basic needs’.3 This view rejects the idea of providing legal rights to nature,
preferring instead the idea of ‘rightness’, which entails the acknowledgment of the
‘intrinsic rightness of non-human existences and sensibilities’.4
A similar viewpoint, but one which has resorted to legal concepts such as rights, has
recently found favour. This is expressed in the Universal Declaration of the Rights of
Mother Earth,5 which recognises that Earth itself has certain inherent rights. In 2008,
Ecuador became the first country to provide for the rights of nature in its Constitution.6
Bolivia enacted the Law of Mother Earth in 2011.7 A viewpoint closer to the
mainstream regards nature as a rights holder, as expressed in a seminal article by
Christopher Stone in which, to put it simply, he proposed that the environment (ie trees,
rocks, rivers and so on) ought to be accorded rights to protect it against degradation.8
The anthropocentric approach, on the other hand, views the subject of the rights as
human beings. This approach may entail a purely utilitarian view of nature (as a source
of resources for humans), or it may place humans at the centre of nature and recognise
the utilitarian aspect, yet accord some recognition to the value of the environment in
itself, independent of its utilitarian value.9 Where environmental rights are explicitly
recognised in legal systems, these are overwhelmingly anthropocentric in nature, and
this is the case in South Africa too.
24.2 CONSTITUTIONAL ENVIRONMENTAL RIGHTS

According to traditional rights discourse, which categorises rights into three
‘generations’, environmental rights are usually regarded as third generation or ‘green’
rights, which are also referred to as ‘people’s or solidarity rights’.10 These rights, which
also include the right to development and the right to peace, are usually exercised as
group rights.11 In other words, they are rights of the public at large rather than rights of
specific individuals.
As of 2008, environmental rights ‘of one kind or another’ had been adopted by more
than 100 states in their national constitutions.12 In 2000, Bruch et al observed that:
African nations figure prominently among nations worldwide in incorporating environmen-
tal provisions into their constitutions, if not necessarily in their application. In fact, at least
3
Ibid 30.
4
J Livingston ‘Rightness or Rights’ (1984) 22 Osgoode Hall LJ 309 at 321. See Feris (note 2 above) 31.
5
This document is reproduced in C Cullinan Wild Law 2 ed (2011) 214.
6
An English translation of the Ecuadorean Constitution is available at http://pdba.georgetown.edu/
Constitutions/Ecuador/english08.html. The environmental rights are in Chapter 7.
7
An English translation of the Bolivian law is available at http://f.cl.ly/items/2Z2n2D0g2x2E0X1B272Y/
law. . .of. . .mother. . .earth. . .translation.pdf.
8
C Stone ‘Should Trees Have Standing?—Towards Legal Rights for Natural Objects’ 1972 Southern
California Law Review 450. See also C Stone ‘‘‘Should Trees Have Standing?’’ Revisited: How Far Will Law
and Morals Reach? A Pluralist Perspective’ 1985 Southern California Law Review 1.
9
Feris (note 2 above) at 32. See also Kidd (note 1 above) 14ff.
10
J Glazewski ‘The Environment, Human Rights and a New South African Constitution’ (1991) 7 SAJHR 167
at 172.
11
See L Feris ‘Environment’ in the fifth edition of this book 522.
12
S Kravchenko & JE Bonine Human Rights and the Environment (2008) at 67.
517
32 countries in Africa (approximately two-thirds) have some constitutional provisions

ensuring the right to a healthy environment.13
Since 2000, several constitutions in Africa have been amended or replaced, and now at
least 35 African countries have constitutional environmental rights, whether fundamen-
tal justiciable rights (as in Mali and South Africa) or directive principles of state policy
(as in Nigeria and Swaziland). Of those African countries not constitutionally
recognising environmental rights, most do protect the right to life, which can be (and has
been) interpreted as incorporating the right to a healthy environment.14
(a) Section 24
South Africa’s environmental right is contained in s 24 of the 1996 Constitution.15
There are two parts to this right—paragraph (a) is a fundamental human right, while
paragraph (b) is more in the nature of a directive principle requiring the state to take
positive steps towards the attainment of the right. These two provisions will be
discussed in turn.
(i) Section 24(a): an environment not harmful to health or well-being

The phrase ‘everyone has the right to an environment that is not harmful to their health
or well-being’ encompasses two aspects: the right to an environment not harmful to
health, and the right to an environment not harmful to well-being. Both revolve around
the meaning of ‘environment’. ‘Environment’ is not defined in the Constitution, but is
defined in South Africa’s framework environmental legislation, the National
Environmental Management Act (NEMA)16 as:
the surroundings within which humans exist and that are made up of—
(i) the land, water and atmosphere of the earth;
(ii) micro-organisms, plant and animal life;
(iii) any part or combination of (i) and (ii) and the interrelationships among and between
them; and
(iv) the physical, chemical, aesthetic and cultural properties and conditions of the foregoing
that influence human health and well-being.
This definition is narrower than the dictionary definition, which regards an
‘environment’ as the totality of a being’s surroundings. The NEMA definition is not that
wide, nor does it take the narrow approach of confining itself to the physical
environment. It places humans at the centre of the environment, and includes the
physical environment and the interactions between components of the physical
environment and between those components and humans. It also includes non-physical
elements such as the environment’s cultural and aesthetic characteristics.17 As for its
meaning in s 24, there is a broad consensus that confining it to the NEMA definition is
13
C Bruch, W Coker & C van Arsdale ‘Breathing Life into Fundamental Principles: Implementing
Constitutional Environmental Protections in Africa’ (2000) 7 South African Journal of Environmental Law and
Policy 21, 34.
14
Ibid 33. For further details on environmental human rights in Africa see M Kidd ‘Environmental Law in
Africa’ in S Alam et al Routledge Handbook of International Environmental Law (2012) 509, 512–514.
15
For a full discussion of the evolution of this right, see M Kidd Environmental Law: A South African Guide
(1997) 37.
16
Act 107 of 1998.
17
See Kidd (note 1 above) 3–4.
518
Environment 24.2
not appropriate and that a wider meaning would not unacceptably limit the right. Such a
wider conception would include the place of humans in the urban environment,18 which
would include the built environment and the work environment.19 Feris argues that a
broader approach would include the socio-economic and cultural dimensions of the
inter-relationships not only between humans and the natural environment, but also
between humans and other humans,20 in other words, the social environment. A wide
definition such as this could be ‘invoked to prevent the displacement and relocation of
indigenous groups on the basis that the loss of culturally or historically significant sites
violates s 24’.21 Such a definition is also in accordance with the centrality of the concept
of sustainable development in the environmental right and South Africa’s environmental
law generally (as discussed below).
The ‘health’ aspect of the right is an aspect of the right that would have been
recognised, at least in some respects, under the common law. For example, a person
seeking to interdict a nuisance on the basis of that activity’s impact on the
applicant’s health would have been able to rely on the right to health under the
common law.22 Under s 24, a person’s environment would be harmful to health in
cases such as exposure to air pollution or reliance on polluted water supplies for
drinking water. It is also important to note that the right to health encompassed in
s 24 must be distinguished from the right of access to health care services in s 27.23
The above-mentioned examples of impacts on health envisage impacts on physical
health (or physical harm, injury or disease). The idea of health does, however, go
beyond this. According to the World Health Organisation (WHO), health is defined
as a ‘state of complete physical, mental and social well-being’.24 ‘Health’
consequently overlaps with the notion of ‘well-being’, which is also included in s 24.
Pollution impacts on human health are probably the first ‘environmental harms’ that
would come to mind for most people, but detrimental impacts on ecosystems can
lead to numerous negative health effects as well. According to the WHO publication
Ecosystems and Human Well-Being: Health Synthesis, a report of the Millennium
Ecosystem Assessment, environmental changes and ecosystem impairment (such as
biodiversity loss, desertification and climate change) can lead to direct health impacts
(including floods, heatwaves, water shortages, landslides and exposure to ultraviolet
radiation); so-called ‘ecosystem-mediated’ health impacts (such as altered infectious
disease risk, reduced food yield which can lead to malnutrition, and depletion of
natural medicines) and indirect, deferred and displaced health impacts (such as the
health consequences of livelihood loss and population displacement). These aspects
overlap with the concept of well-being, as will be seen below.25
The phrase ‘well-being’ has not been given much attention in the courts. In HTF
18
See J Glazewski Environmental Law in South Africa 2 ed (2005) 76.
19
See A du Plessis ‘South Africa’s Constitutional Environmental Right (Generously) Interpreted: What is in it
for Poverty?’ (2011) 27 SAJHR 279, 292–293.
20
Feris (note 11 above) at 525.
21
Ibid.
22
See Verstappen v Port Edward Town Board 1994 (3) SA 569 (D), 577H.
23
Glazewski (note 18 above) 76–77.
24
Preamble to the Constitution of the World Health Organization (1978). See Feris (note 11 above) 526 and
Du Plessis (note 19 above) 293.
25
World Health Organization Ecosystems and Human Well-Being: Health Synthesis (2005) 1.
519
Developers (Pty) Ltd v Minister of Environmental Affairs and Tourism,26 Murphy J

suggested that the term is—
open-ended and manifestly . . . incapable of precise definition. Nevertheless it is critically
important in that it defines for the environmental authorities the constitutional objectives of
their task.27
He quoted Glazewski (seemingly with approval) as follows:
In the environmental context, the potential ambit of a right to ‘well-being’ is exciting but
potentially limitless. The words nevertheless encompass the essence of environmental
concern, namely a sense of environmental integrity; a sense that we ought to utilize the
environment in a morally responsible and ethical manner. If we abuse the environment we
feel a sense of revulsion akin to the position where a beautiful and unique landscape is
destroyed, or an animal is cruelly treated.28
The concept ‘well-being’ was also considered, less directly, in Hichange Investments
(Pty) Ltd v Cape Produce Co (Pty) Ltd t/a Pelts Products.29 In this case, exposure to a
‘stench’ was regarded as being adverse to one’s health and well-being.30
There is a substantial discourse in the social sciences involving the meaning of
‘well-being’. McGregor, for example, defines the term as ‘a state of being with
others, where human needs are met, where one can act meaningfully to pursue one’s
goals, and where one enjoys a satisfactory quality of life’.31 This would include
physical health as a component of well-being. Doyal and Gough’s A Theory of
Human Needs32 involves the idea that harm, or ill-being (the opposite of well-being),
is a result of the failure to meet basic human needs. The authors’ conception of basic
human needs posits—
health and autonomy as the two basic dimensions of human needs that are required to permit
effective participation in society and through that avoid harm. Where the failure to satisfy
these basic needs are seen as foundations of any notion of well-being, then we are
immediately encouraged to think of well-being beyond its material dimensions. The
recognition of the importance of mental health for participation invites us to consider
cognitive processes as an important area for consideration. The concept of autonomy
encourages us to consider both relational and cognitive dimensions of well-being. It draws
our attention not only to the relationships that people have, but also, in cognitive terms, to
take account of how people perceive their ability to participate in society.33
The health needs are physical in nature, being the fundamental requirements in order not
only to stay alive, but to possess physical health.34 Humans cannot survive without food
and water, and they must avoid situations where they may be exposed to physical harm
(injury or death), including contracting diseases. These needs take precedence over
other needs when they are threatened or harmed. Autonomous needs involve the ability
26
2006 (5) SA 512 (T).
27
Ibid [18].
28
J Glazewski Environmental Law in South Africa (2000) 86. This passage does not appear in the second
edition of the author’s work (see note 18 above), but the overall views expressed are similar.
29
2004 (2) SA 393 (E).
30
Ibid 415.
31
JA McGregor ‘Wellbeing, Poverty and Conflict’ (2008) WeD Briefing Paper 01/08. WeD Research Group,
University of Bath. Available at http://www.welldev.org.uk/research/bp/bp1–08.pdf.
32
L Doyal & I Gough A Theory of Human Needs (1991).
33
JA McGregor ‘Researching Well-being’ (2004) 4 Global Social Policy 337, 344.
34
Doyal & Gough (note 32 above) 56–59.
520
Environment 24.2
of humans to make informed choices to achieve conscious goals. In order to do this, a

person needs three attributes: cognitive skills (understanding), mental health, and
opportunities to engage in social participation.35 In order for a person to satisfy health
needs and enable the achievement of autonomous needs, Doyal and Gough identify
eleven ‘intermediate needs’ (or universal satisfier characteristics) that must be satisfied:
1. Adequate nutritional food and water;
2. Adequate protective housing;
3. Non-hazardous work environment;
4. Non-hazardous physical environment;
5. Appropriate health care;
6. Security in childhood;
7. Significant primary relationships with others;
8. Physical security;
9. Economic security;
10. Safe birth control and child-bearing;
11. Appropriate basic and cross-cultural education.36
The notion of well-being is a critical component of social science study of poverty and
the alleviation thereof. Poverty involves, in short, the absence of well-being. Questions
of poverty are of significant importance in the South African policy agenda and clearly
at centre-stage when it comes to the application of our Bill of Rights. Efforts at poverty
alleviation, specifically the achievement of the Millennium Development Goals,37
require meeting the requirements of what McGregor and Sumner term ‘3-D
well-being’.38 This idea entails the interplay of three dimensions of human well-being:
the material, the relational and the subjective (also referred to as perceptual). Whereas
the conventional view of poverty focuses on material deprivation, more recent social
science discourse emphasises the role of both relationships and subjective experiences
and feelings as well. The authors argue that if ‘development policy, and poverty policy
in particular, is intended to generate forms of intervention that are genuinely supportive
of people’s struggles for well-being, then all three of these dimensions and the relations
between them must be taken into account’.39
It is beyond the scope of this chapter to consider this discourse in more detail, but
this brief (and admittedly selective) foray into the social science literature helps cast
some light on how we may conceptualise the notion of well-being in s 24,
particularly since all the rights must be seen in the context of the preambular
exhortation that the Constitution is aimed at improving the quality of life of all
citizens and freeing the potential of each person. It also provides some important
perspective on how the concept ‘sustainable development’ is defined, particularly in
so far as development is seen to be a means of alleviating poverty. What ideas such
as those of McGregor, and Doyal and Gough, indicate is that well-being incorporates
35
Ibid 59–69.
36
Ibid ch 10.
37
The Millennium Development Goals (MDGs) are goals set out in the United Nations General Assembly’s
Millennium Declaration. The goals are aimed at freeing people globally from extreme poverty and multiple
deprivations.
38
A McGregor & A Sumner ‘Beyond Business as Usual: What Might 3-D Wellbeing Contribute to MDG
Momentum?’ (2010) 41 IDS Bulletin 104.
39
Ibid 105–106.
521
several dimensions that would be addressed by other rights in the Bill of Rights,
including slavery, servitude and forced labour; housing; health care; food and water;
children’s rights; and education, not to mention equality and dignity.40 Their ideas
emphasise human relationships and feelings, which ought, therefore, to be taken into
account in how we delineate the concept of well-being in s 24.
In the Hichange case, dealing with a stench, the impact on well-being was
physical (although not explicitly harmful to health). In the light of the discussion
above, it would clearly not be confined to such situations. If we consider well-being
as involving personal fulfilment and freedom from mental distress, it must surely
include notions of concern for the aesthetic and spiritual dimension of the natural
environment, including the idea of ‘sense of place’.41 This means that a person’s
well-being may be detrimentally affected when there is a threat or damage not only
to the environment in a place that is geographically distant from that person, but also
to the environment of a place in which that person has never been nor intends to go
in the future. For example, a person in Johannesburg may legitimately allege that her
environmental well-being is detrimentally affected by a threat to the natural and
cultural environment in Mapungubwe, one of South Africa’s World Heritage Sites,
because it impacts on aesthetic and spiritual dimensions of her well-being. This
raises the idea that knowledge or reasonable anticipation of a threat to the
environment anywhere may be harmful to a person’s environmental well-being.
(ii) Section 24(b): to have the environment protected through legislative and
other measures
Paragraph (b) is ‘more in the nature of a directive principle, having the character of a
so-called second generation right imposing a constitutional imperative on the state to
secure the environmental rights by reasonable legislation and other measures’.42 These
measures must be aimed at the objectives stated in paragraph (b)(i) to (iii). The
Constitutional Court suggested how the state is to meet this type of Constitutional
obligation, albeit not in the environmental sphere, in Government of the Republic of
South Africa v Grootboom,43 where Yacoob J said:
The State is required to take reasonable legislative and other measures. Legislative measures
by themselves are not likely to constitute constitutional compliance. Mere legislation is not
enough. The State is obliged to act to achieve the intended result, and the legislative
measures will invariably have to be supported by appropriate, well-directed policies and
programs implemented by the Executive. These policies and programs must be reasonable
both in their conception and their implementation. The formulation of a program is only the
first stage in meeting the State’s obligations. The program must also be reasonably
implemented. An otherwise reasonable program that is not implemented reasonably will not
constitute compliance with the State’s obligations.44
40
In respect of the relationship between well-being and dignity, see Du Plessis (note 19 above) 296.
41
See Glazewski (note 18 above) 77.
42
HTF Developers (note 26 above) [17].
43
2001 (1) SA 46 (CC).
44
Ibid [42]. See discussion of Grootboom in the context of s 24 of the Constitution in BP Southern Africa (Pty)
Ltd v MEC for Agriculture, Conservation, Environment and Land Affairs 2004 (5) SA 124 (W) per CJ Claassen J
at 142.
522
Environment 24.2
Such programmes must be ‘balanced and flexible’.45

Section 24(b) provides that everyone has the right ‘to have the environment
protected, for the benefit of present and future generations, through reasonable
legislative and other measures’. The word ‘protected’ is used rather than the more
currently acceptable concept ‘conserved’, although it is unlikely that this was a
deliberate choice. On the other hand, a deliberate insertion was the phrase ‘for the
benefit of present and future generations,’ which was absent in the draft of the final
Constitution.46 This incorporates the notion of intergenerational equity, which is
internationally recognised and can be described as the idea that as ‘members of the
present generation, we hold the earth in trust for future generations’.47
The reasonableness of the ‘reasonable legislative and other measures’ required to
be taken in order for the right to be realised is illuminated by the comments of the
Constitutional Court in the Grootboom case mentioned above. ‘Legislative measures’
needs no explanation and it would seem, judging by the significant legislative
activity in the environmental field since 1994, that compliance with this has been
substantial. What is meant by ‘other measures’? As suggested in the extract from the
Grootboom judgment above, this would incorporate policies and programmes but
also, importantly, the effective implementation of the legislative measures.
The objective of the legislative and other measures are those set out in the
sub-paragraphs of s 24(b). The reasonable legislative and other measures must—
(i) prevent pollution and ecological degradation;
(ii) promote conservation; and
(iii) secure ecologically sustainable development and use of natural resources while
promoting justifiable economic and social development.
The first two require little discussion; although the observation could be made that
phrase (ii) is incomplete, since it does not refer to the object of the conservation (which
is assumed, due to the context, to be the environment and, in particular, the natural
environment, although conservation of cultural heritage could also be subsumed under
s 24). The third item expressly provides for the concept of sustainable development. The
Constitutional Court had occasion to consider s 24 and, in particular, the sustainable
development component, in Fuel Retailers Association of Southern Africa v Director
General Environmental Management, Department of Agriculture, Conservation and
Environment, Mpumalanga Province.48 The court referred to the ‘explicit recognition of
the obligation to promote justifiable “economic and social development,”’49 and went on
to state that the Constitution:
contemplates the integration of environmental protection and socio-economic development.
It envisages that environmental considerations will be balanced with socio-economic
considerations through the ideal of sustainable development. . . . Sustainable development
45
Ibid [43].
46
See ‘Report on the Proceedings of the Workshop on the Constitution and the Environment,
Pietermaritzburg, 2–3 February 1996’ (1996) 3 SAJELP.
47
EB Weiss ‘Our Rights and Obligations to Future Generations for the Environment’ (1990) 84 AJIL 198–199.
See P Sands Principles of International Environmental Law 2 ed (2003) 256–257 for further discussion of the
concept, including reference to international treaties and cases in which the principle has been recognised.
48
2007 (6) SA 4 (CC).
49
Ibid [44].
523
and sustainable use and exploitation of natural resources are at the core of the protection of
the environment.50
Later in the judgment, the court observed that:
[t]he role of the courts is especially important in the context of the protection of the
environment and giving effect to the principle of sustainable development. The importance
of the protection of the environment cannot be gainsaid. Its protection is vital to the
enjoyment of the other rights contained in the Bill of Rights; indeed, it is vital to life itself. It
must therefore be protected for the benefit of the present and future generations. The present
generation holds the earth in trust for the next generation. This trusteeship position carries
with it the responsibility to look after the environment. It is the duty of the Court to ensure
that this responsibility is carried out.51
The sentiments expressed in the Fuel Retailers judgment were endorsed by the same
court in the subsequent case of MEC, Department of Agriculture, Conservation and
Environment v HTF Developers (Pty) Ltd.52
The idea of sustainable development requires further elucidation and, in so doing,
it will become apparent that it relates very closely to human well-being, which has
already been discussed as a central element of the environmental right in s 24. The
idea of sustainable development is generally considered to have been coined by the
World Commission on Environment and Development (WCED). The WCED defined
it as ‘development that meets the needs of the present without compromising the
ability of future generations to meet their own needs’.53 According to this view,
sustainable development has at its core two fundamental notions: first, the basic
needs of humanity (food, clothing, shelter and employment) must be met. Second,
‘the limits to development are not absolute but are imposed by present states of
technology and social organisation and by their impacts upon environmental
resources and upon the biosphere’s ability to absorb the effect of human activities’.54
In NEMA, sustainable development is defined as ‘the integration of social, economic
and environmental factors into planning, implementation and decision-making so as
to ensure that development serves present and future generations’.55
Sands, in his analysis of the term in the context of international agreements,
identifies four ‘recurring elements’ of sustainable development:
1. the need to preserve natural resources for the benefit of future generations
(the principle of intergenerational equity);
2. the aim of exploiting natural resources in a manner which is ‘sustainable’, or
‘prudent’, or ‘rational’, or ‘wise’ or ‘appropriate’ (the principle of sustainable
use);
3. the ‘equitable’ use of natural resources, which implies that use by one state
must take account of the needs of other states (the principle of equitable use,
or intragenerational equity); and
4. the need to ensure that environmental considerations are integrated into
economic and other development plans, programmes and projects, and that
50
Ibid [45].
51
Ibid [102].
52
2008 (2) SA 319 (CC).
53
WCED Our Common Future (1987) at 43.
54
Ibid. This quotation is from Our Common Future: A Reader’s Guide (1992) 7.
55
Section 1.
524
Environment 24.2
development needs are taken into account in applying environmental

objectives (the principle of integration).56
Along similar lines, Field has argued that sustainable development has at its core the
principles of ‘seeing rightly’ and equity.57 ‘Seeing rightly’ means knowledge of the
earth’s systems, including appreciation of the linkages between human economic and
social systems and the environment. This aspect is related to the principle of integration,
the precautionary principle and the preventive principle. Whereas ‘seeing rightly’ is
based on scientific fact, equity is derived from moral choices and involves inter- and
intra-generational equity, which entails transformation of behaviour and redress of past
unsustainable practices. As Feris has argued:
intragenerational equity is essentially an approach that takes cognisance of the distributional
demands of social justice. This is premised on the belief that distributional inequalities are
causally responsible for a great deal of environmental degradation. Reducing inequalities
can therefore be held to be a necessary means of achieving sustainability.58
The poor not only carry out activities that affect the environment negatively (for
example, using indigenous vegetation for firewood in an unsustainable manner), but
simultaneously, more often than not, constitute that sector of society that bears the brunt
of environmental human impacts such as pollution, lack of sanitation etc.59 Addressing
health and well-being concerns (as required by s 24(a)) consequently advances the
objectives of s 24(b)’s concern with sustainable development.
One remaining aspect to consider in the context of s 24’s reference to sustainable
development is whether s 24(b)(iii) envisages two different meanings of
‘development’, since it refers to measures aimed at securing ‘ecologically sustainable
development and use of natural resources while promoting justifiable economic and
social development’ (emphasis added). From a strictly linguistic perspective, if one
considers ‘ecologically sustainable development’ as requiring the integration of
environmental, social and economic considerations (which is the most widely held
view of the concept), then reference to ‘while promoting justifiable economic and
social development’ would seem redundant. If, however, ecologically sustainable
development means something different from economic and social development,
there would be no redundancy, which would usually be the preferable way of
interpreting a phrase. This issue has not been considered by any commentators, to
the best of my knowledge, and it is most likely that the phrase is simply the result of
clumsy drafting.
(b) Relationship between s 24 and other rights

As observed above, the term ‘well-being’ may incorporate several dimensions that
would be addressed by other rights in the Bill of Rights, including slavery, servitude and
forced labour; housing; health care; food and water; children’s rights; and education. It
would also be related to equality and dignity. Some of these linkages are obvious. For
example, the right of access to water is aimed at addressing people’s basic water
56
P Sands Principles of International Environmental Law 2 ed (2003) 253.
57
T Field ‘Sustainable Development versus Environmentalism: Competing Paradigms for the South African
EIA Regime’ (2006) 123 SALJ 409, 414–417.
58
Feris (note 2 above) 41. See also Du Plessis (note 19 above) 290.
59
See Feris (note 2 above) 43.
525
needs—for drinking, food preparation, washing and sanitation. Access to water that is
polluted would not be suitable for drinking and food preparation (at least), which reveals
the clear connection between the environmental right in s 24 and the right of access to
water in s 27.60
If we accept that ‘environment’ bears a wide meaning that incorporates humans’
physical environment that is not confined to the natural environment, and that
well-being is a concept that goes further than simply well-being in relation to the natural
environment, then there may be some potential applicability of the environmental right
that has not yet been considered by either the courts or academic commentators. If a
person suffers a threat to his or her well-being as a result of some feature of the
environment, that would be an infringement of s 24. This environmental threat need not
be the type of environmental threat that immediately springs to mind such as exposure to
pollution, for example. Consider, for example, residents of a particular neighbourhood
who are exposed to levels of crime that are in excess of national (or local) norms. It
could conceivably be argued that these residents are suffering from an environment that
is harmful to their well-being and ought to be able to rely on s 24 to demand appropriate
(‘reasonable’) government intervention. This type of example, because it does not
involve the natural environment, is not usually considered as falling within the ambit of
s 24.
The response to this argument may be that the type of scenario envisaged above could
better be addressed by another right in the Bill of Rights (in the example given, it could
be argued that the residents’ right to freedom and security of the person in s 12 would be
more appropriate to invoke in such circumstances). While many of our rights are
interconnected, it has been observed that it ‘would be anomalous to derive more
extensive obligations from a particular right in circumstances where the specific
interests at stake are expressly protected in a more limited form by another set of
rights’.61 Yet, in the same way that the Court has been prepared to derive a right to
marriage and family life from the right to dignity,62 where the detrimental impact of an
environment is not covered by another right that is more appropriate to apply in the
circumstances, s 24 may conceivably be used to ‘fill the gaps’. This use of s 24 as a ‘gap
filler’ applies, not only in cases where the harm is done to the natural environment, but
where harm is done more widely.
A particular relationship between s 24 and another right that warrants discussion is
s 38, which is entitled ‘enforcement of rights’, and is often referred to as the ‘locus
standi’ clause. This provides that:
Anyone listed in this section has the right to approach a competent court, alleging that a right
in the Bill of Rights has been infringed or threatened, and the court may grant appropriate
relief, including a declaration of rights. The persons who may approach a court are—
(a) anyone acting in their own interest;
(b) anyone acting on behalf of another person who cannot act in their own name;
(c) anyone acting as a member of, or in the interest of, a group or class of persons;
(d) anyone acting in the public interest; and
(e) an association acting in the interest of its members.
60
See Du Plessis (note 19 above).
61
Liebenberg Socio-Economic Rights 142.
62
Dawood v Minister of Home Affairs 2000 (3) SA 936 (CC), see Liebenberg ibid.
526
Environment 24.2
This section is discussed in detail elsewhere in this book.63 Read together with s 24, it
means that anybody listed in the section (the list from (a) to (e)) may approach a court
for relief where the right in s 24 is infringed or threatened. While this allows for a
significant broadening of locus standi (or standing to sue) vis-à-vis the position under
the common law, it is unlikely that it will find much use in conjunction with s 24. The
reason for this is that NEMA has included a locus standi clause that, in most situations
likely to arise, would be more appropriate to use to provide for standing. This is s 32(1)
of NEMA. The section provides that:
Any person or group of persons may seek appropriate relief in respect of any breach or
threatened breach of any provision of this Act, including a principle contained in Chapter 1,
or any other statutory provision concerned with the protection of the environment or the use
of natural resources—
(a) in that person’s or group of person’s (sic) own interest;
(b) in the interest of, or on behalf of, a person who is, for practical reasons, unable to
institute such proceedings;
(c) in the interest of or on behalf of a group or class of persons whose interests are affected;
(d) in the public interest; and
(e) in the interest of protecting the environment.
This section provides locus standi to anyone seeking relief in respect of a breach or
threatened breach of ‘any statutory provision concerned with the protection of the
environment or the use of natural resources’, not just NEMA itself.
Finally, it is clear from several examples of government policy and legislation that
the twin objectives of environmental conservation and achievement of equality
underpin such initiatives. For example, the National Water Act64 has as its purpose
‘to ensure that the nation’s water resources are protected, used, developed,
conserved, managed and controlled in ways which take into account’, amongst other
factors, ‘meeting the basic human needs of present and future generations’;
‘promoting equitable access to water’; ‘redressing the results of past racial and
gender discrimination’; and ‘promoting the efficient, sustainable and beneficial use of
water in the public interest’.65 In another example, the centrality of the
transformative agenda of the Marine Living Resources Act66 was highlighted by the
Constitutional Court in Bato Star Fishing (Pty) Ltd v Minister of Environmental
Affairs and Tourism.67
(c) Application
Against whom does s 24 apply? According to s 8(2) of the Constitution, ‘a provision of
the Bill of Rights binds a natural or a juristic person if, and to the extent that, it is
applicable, taking into account the nature of the right and the nature of any duty imposed
by the right’. Given that non-state entities may (and often do) act in a way which
detrimentally affects the environment, it could be argued that s 24 applies not only
vertically (ie binds the state) but also horizontally (ie it binds natural and juristic persons
as well). This would be particularly the case in respect of s 24(a), the ‘negative’ part of
63
64
Act 36 of 1998.
65
Section 2.
66
Act 18 of 1998.
67
2004 (4) SA 490 (CC). See Kidd (note 1 above) 128.
527
the right, in that the right to an environment not harmful to health or well-being could be
invoked against a non-state body. It would seem that s 24(b) would be aimed primarily
at the state. After all, only the state can carry out ‘legislative measures’. Extending the
idea of ‘other measures’ to non-state actors would not really achieve anything since such
actors would, in any event, be subject to s 24(a) if the argument here is accepted.
How does the right apply? If one looks at the right as a whole and considers its
application, it would seem to apply in four ways. First, it is a right that could be invoked
by any person where it is necessary for that person to protect his or her health or
well-being. This is likely to be a relatively rare occurrence because of the presence of a
large body of legislation that gives effect to this right. Direct reliance on the
constitutional right would be rare due to the principle of avoidance, which requires that
remedies should be located in common law or legislation (more likely in the
environmental law sense) before resorting to constitutional remedies.68 Second, it could
be used as a ‘trigger’ for the so-called locus standi (or legal standing) clause in s 38 of
the Constitution (discussed above), although this would be rare because of the existence
of s 32 of NEMA. Third, the environmental right influences government actions,
including legislative and executive decisions and policies. Put differently, the
environmental right provides the underpinnings of the environmental legislation that has
been enacted since the Constitution has come into effect (see below). The fourth mode
of operation of the environmental right is as a guide to interpretation of both the
common law and all legislation (not only that which would usually be labelled
‘environmental’) through s 39.
Overall, the significance of the constitutional environmental right was well expressed
in Director: Mineral Development, Gauteng Region v Save the Vaal Environment,69
where the court stated that:
Our Constitution, by including environmental rights as fundamental, justiciable human
rights, by necessary implication requires that environmental considerations be accorded
appropriate recognition and respect in the administrative processes in our country. Together
with the change in the ideological climate must also come a change in our legal and
administrative approach to environmental concerns.
(d) Realisation of the s 24 right

As noted above, s 24 requires the state to take ‘reasonable legislative and other
measures’ to achieve the objectives set out in s 24(b) (which ultimately protect the right
set out in s 24(a)). Since the onset of democracy, South Africa has enacted a
comprehensive suite of environmental legislation which, on paper, meets the objectives
of s 24 admirably. This includes the National Environmental Management Act
(NEMA)70 and the so-called specific environmental management Acts: the Environment
Conservation Act;71 the National Water Act;72 the National Environmental Manage-
68
See PFE International v International Development Corporation of South Africa Ltd 2013 (1) SA 7 (CC)
[4]. For discussion of this principle in the context of administrative justice, see Currie & Klaaren PAJA
Benchbook at 27.
69
1999 (2) SA 709 (SCA), 719C–D.
70
Act 107 of 1998.
71
Act 73 of 1989.
72
Act 36 of 1998.
528
Environment 24.2
ment: Protected Areas Act;73 the National Environmental Management: Biodiversity

Act;74 the National Environmental Management: Air Quality Act;75 all in terms of the
definition in s 1 of NEMA; and also the National Environmental Management:
Integrated Coastal Management Act;76 and the National Environmental Management:
Waste Act.77 NEMA in particular contains a set of ‘national environmental management
principles’ which revolve around the principle of sustainable development. At the core
of these principles are the ideas that environmental management must place people and
their needs at the forefront of its concern, and serve their physical, psychological,
developmental, cultural and social interests equitably,78 and that development must be
socially, environmentally and economically sustainable.79 A detailed list of further
‘relevant factors’ that must be considered in order to achieve sustainable development
are included in s 2 of the Act.
As far as the work environment is concerned, protection from harm in the work
environment is provided both by NEMA in s 29 and s 2(4)(j).80 Safety in the work
environment is also provided for in the Occupational Health and Safety Act.81
Much of South Africa’s environmental legislation is innovative and recognises the
current state of international thinking relating to the subject matter the Acts address. On
paper, therefore, the legislation meets the requirements of s 24. As is the case with
numerous policy and legislative initiatives in South Africa, however, there is cause for
concern in respect of the effective implementation of the environmental legislation. So
while the legislative framework is present, the challenge identified in Grootboom82 as
regards ‘reasonable implementation’ still remains in many respects.
73
Act 57 of 2003.
74
Act 10 of 2004.
75
Act 39 of 2004.
76
Act 24 of 2008, in terms of s 5(2) of that Act.
77
Act 59 of 2008, in terms of s 83 of that Act.
78
Section 2(2) of Act 107 of 1998.
79
Section 2(3).
80
Section 29 provides for immunity from negative consequences for workers refusing to do ‘environmentally
hazardous work’ (which would cover work harmful to human health). Section 2(4)(j) provides that one of the
factors relevant to the idea of sustainable development is that ‘the right of workers to refuse work that is harmful
to human health or the environment and to be informed of dangers must be respected and protected’.
81
Act 85 of 1993.
82
Note 43 above.
529
Chapter Twenty-five
Property*
25.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 531
25.2 Purposes of the property clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 533
25.3 Section 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 534
(a) Structure of analysis of s 25(1)–(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 534
(b) The meaning of ‘property’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 535
(c) Deprivation of property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 538
(i) The relationship between deprivation and expropriation . . . . 538
(ii) Law of general application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 539
(iii) Arbitrariness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 540
(aa) Procedural fairness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 540
(bb) Substantive fairness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 542
(d) Expropriation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 547
(i) Expropriation defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 547
(ii) Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 550
(iii) Timing and manner of payment of compensation . . . . . . . . . . . 553
(e) Direct horizontal application of the property right. . . . . . . . . . . . . . . . 553
(f) Indirect application of the property right . . . . . . . . . . . . . . . . . . . . . . . . . 554
(g) Limitation of property rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 557
(h) Section 25(5)–(9): restitution and redistribution of property. . . . . . 559
Property
25. (1) No one may be deprived of property except in terms of law of
general application, and no law may permit arbitrary deprivation of
property.
(2) Property may be expropriated only in terms of law of general
application—
(a) for public purposes or in the public interest; and
(b) subject to compensation, the amount, timing, and manner of
payment of which must be agreed, or decided or approved by a
court.
(3) The amount, timing, and manner of payment of compensation
must be just and equitable, reflecting an equitable balance between the
public interest and the interests of those affected, having regard to all
relevant factors, including—
* This chapter was updated for the sixth edition by Kevin Iles, Advocate, Johannesburg Bar.
530
Property 25.1
(a) the current use of the property;

(b) the history of the acquisition and use of the property;
(c) the market value of the property;
(d) the extent of direct state investment and subsidy in the acquisition
and beneficial capital improvement of the property; and
(e) the purpose of the expropriation.
(4) For the purposes of this section—
(a) the public interest includes the nation’s commitment to land
reform, and to reforms to bring about equitable access to all South
Africa’s natural resources; and
(b) property is not limited to land.
(5) The state must take reasonable legislative and other measures,
within its available resources, to foster conditions which enable citizens
to gain access to land on an equitable basis.
(6) A person or community whose tenure of land is legally insecure
as a result of past racially discriminatory laws or practices is entitled, to
the extent provided by an Act of Parliament, either to tenure which is
legally secure, or to comparable redress.
(7) A person or community dispossessed of property after 19 June
1913 as a result of past racially discriminatory laws or practices is
entitled, to the extent provided by an Act of Parliament, either to
restitution of that property, or to equitable redress.
(8) No provision of this section may impede the state from taking
legislative and other measures to achieve land, water and related
reform, in order to redress the results of past racial discrimination,
provided that any departure from the provisions of this section is in
accordance with the provisions of section 36(1).
(9) Parliament must enact the legislation referred to in subsection
(6).
25.1 INTRODUCTION
The South African state traces its origins to the settler colonies established by Dutch and
British conquest. This history of conquest and dispossession tends to give considerable
resonance to the anarchist slogan ‘property is theft’. It was therefore to be expected that
the proposal to include a constitutional right to property in both the interim and final
Constitutions would attract a great deal of controversy.1 Opponents of the clause argued
1
The history of the negotiations leading up to the enactment of s 28 of the interim Constitution is described by
Matthew Chaskalson in ‘Stumbling Towards Section 28: Negotiations over Property Rights at the Multiparty
Talks’ (1995) 11 SAJHR 222. According to Chaskalson, ANC negotiators hoped to insulate future legislative
programmes addressing the disparities of wealth in South African society from constitutional scrutiny in the
name of property rights. The National Party sought to ensure that the Constitution could be used to protect the
property of white South Africans from these legislative programmes. Section 28 of the interim Constitution was
a political compromise between these viewpoints in terms of which a right to property was included but the
extent of the protection that it gave to existing property rights was circumscribed. See further Chaskalson ‘The
531
that a constitutional right to property would entrench white privilege by keeping in place
the racially skewed maldistribution of property that was the result of centuries of
colonialism and apartheid. The clause would impede the state’s ability to correct this
situation by redistributing property, particularly through land-reform measures. The
clause’s opponents further argued that the absence of constitutional property protection
would not mean that existing property rights and the institution of private property
would be endangered. They pointed out that a number of democracies provide no
express protection of property in their constitutions or bills of rights.2 On the other hand,
proponents of the clause argued that its inclusion in the Constitution was essential for
economic confidence. People are unlikely to invest or innovate if the resulting assets can
be taken away by the state with impunity. The private sector, they argued, must be given
a constitutional assurance that their property would not be nationalised or confiscated by
the state in the name of economic reform.
The property clause in the interim Constitution—s 28—represented an attempt to find
a middle way between these arguments. The clause was intended to protect existing
property rights on the one hand while, on the other hand, permitting legislative
programmes aimed at correcting historical imbalances in the distribution of property and
wealth. A similar balancing act is attempted in s 25 of the 1996 Constitution.3 The
clause protects private property from confiscation by the state, and requires any
expropriation of property to be compensated. It requires interference with private
property to be authorised by law and to be rational. At the same time, the clause requires
the state to actively pursue the goals of land redistribution, reform of land tenure rights
and grants an entitlement to the restitution of property dispossessed in pursuance of
apartheid policies. 4 The clause, moreover, must be read in context: the broad context of
South African history5 and the narrower context provided by the other provisions of the
Constitution and the Bill of Rights, particularly the socio-economic rights. By requiring
the state to take positive measures to achieve the important social goals of ensuring
access to housing, health care, social security, food and water, the Constitution
necessarily envisages and legitimates considerable intervention in the existing
distribution of wealth and property.6
Property Clause: Section 28 of the Constitution’ (1994) 10 SAJHR 131, M Chaskalson & C Lewis ‘Property’ in
M Chaskalson et al (eds) Constitutional Law of South Africa (1996) ch 31, AJ van der Walt Constitutional
Property Law 3 ed (2011) 31–34.
2
See the discussion by the Constitutional Court as to whether the right to property is a ‘universally accepted
fundamental right’ in the First Certification judgment: Ex parte Chairperson of the Constitutional Assembly: in
re Certification of the Constitution of the Republic of South Africa 1996 1996 (4) SA 744 (CC) [71]–[74]. See
also Van der Walt ibid 32, n 50–52 for countries which have constitutional property clauses and countries which
do not, as well as for a comprehensive bibliography of the property debate.
3
See K Savage ‘An Overview of the Key Players’ in P Andrews & S Ellmann (eds) The Post-Apartheid
Constitutions (2001) 164, 176–181 for an account of the negotiation of s 25 of the 1996 Constitution.
4
See First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Services 2002 (4) SA
768 (CC) [49] (the land reform provisions of s 25(5)–(9) emphasise that ‘under the 1996 Constitution the
protection of property as an individual right is not absolute but subject to societal considerations’).
5
Agri South Africa v Minister for Minerals and Energy [2013] ZACC 9 (18 April 2013) [62] and [70], City of
Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd 2012 (2) SA 104 (CC) [35],
Haffejee NO v Ethekwini Municipality 2011 (6) SA 134 (CC) [30], Reflect-All 1025 CC v MEC for Public
Transport, Roads and Works, Gauteng Provincial Government 2009 (6) SA 391 (CC) [33], Port Elizabeth
Municipality v Various Occupiers 2005 (1) SA 217 (CC) [15]. See also Van der Walt (note 1 above) 48–49.
6
Agri South Africa (note 5 above) [60], [62], [70]. See also Minister of Publics Works v Kyalami Ridge
Environmental Association 2001 (3) SA 1151 (CC) [108]: ‘The fact that property values may be affected by low
cost housing development on neighbouring land is a factor that is relevant to the housing policies of the
532
Property 25.2
25.2 PURPOSES OF THE PROPERTY CLAUSE

Property clauses in modern bills of rights, protecting some or other formulation of the
‘right to property’, embody three broad categories of rights claims.7
(1) Claims to an immunity against uncompensated expropriation of private property.
As will be explained further below, in most jurisdictions expropriation is the
compulsory taking over of property by the state. An immunity against
uncompensated expropriation means therefore that the state cannot lawfully take
over property unless it pays for it.8
(2) A claim of eligibility to hold property. The best example of the recognition of
such a claim in a human rights instrument is art 17 of the Universal Declaration
of Human Rights: ‘Everyone has the right to own property alone as well as in
association with others’. A constitutional property right giving effect to such a
claim would be a right not to be excluded from the class of property-holders. It
is not a claim that one is entitled to become a property-holder if one does not
have property. For example, s 28(1) of the interim Constitution provided that
‘every person shall have the right to acquire and hold rights in property’. This
right would have been violated by, for example, a law that prevented black
people or women from owning land.
(3) A claim to have property. This claim is premised on the argument that all
people have a moral right to have at least enough property to enable them to
survive or to lead a dignified existence. This means that if they do not have
property, it should be provided for them, usually by the state. This claim would
make the constitutional property right a second-generation or socio-economic
right.
The property clause of the 1996 Constitution recognises the first of these claims. In
essence, s 25 provides that property may not be expropriated by the state except where
the expropriation is by way of a law of general application and is for a public purpose or
is in the public interest. Where an expropriation meets these criteria, the state is obliged
to pay monetary compensation to the former holder of the property. The
‘non-arbitrariness’ element of s 25(1) recognises an additional claim. It requires state
government and to the way in which government discharges its duty to provide everyone with access to housing.
But it is only a factor and cannot in the circumstances of the present case stand in the way of the constitutional
obligation that government has to address the needs of homeless people, and its decision to use its own property
for that purpose’. See also First National Bank (note 4 above) [50]. The prohibition of arbitrary eviction in
s 26(3) is also a considerable qualification of private property rights. See Port Elizabeth Municipality (note 5
above) [23]: ‘[The Constitution] counterposes to the normal ownership rights of possession, use and occupation,
a new and equally relevant right not arbitrarily to be deprived of a home. The expectations that ordinarily go with
title could clash head-on with the genuine despair of people in dire need of accommodation. The judicial function
in these circumstances is not to establish a hierarchical arrangement between the different interests involved,
privileging in an abstract and mechanical way the rights of ownership over the right not to be dispossessed of a
home, or vice versa. Rather it is to balance out and reconcile the opposed claims in as just a manner as possible
taking account of all the interests involved and the specific factors relevant in each particular case’.
7
J Waldron The Right to Private Property (1988) 16–24. Waldron includes a fourth category—claims that
rights to property are natural rights. This category is of greater interest to an account of the justification for the
constitutional protection of property than to an account of the content of such protection. It is accordingly omitted
here.
8
The basic moral idea behind this claim was expressed as follows by the US Supreme Court in Armstrong v
United States (1949) 364 US 40: the property right ‘bar[s] Government from forcing some people to bear public
burdens which, in all fairness and justice, should be borne by the public as a whole’.
533
interference with private property, whether it amounts to expropriation or not, to be

authorised by law and to meet a basic standard of justification.
The second claim, though not expressly part of the property right,9 is effectively
guaranteed by s 9, the equality clause. The constitutional right to equality and
non-discrimination would prevent the passage of legislation prohibiting the
ownership of property along racial lines, such as the Land Act 27 of 1913 or Group
Areas Act 36 of 1936.
The third claim—that the propertyless have a right to be given property—has been
accorded a degree of recognition in the Bill of Rights through the instructions to the
state to promote access to land on an equitable basis in s 25(5). The Bill of Rights
also contains socio-economic rights to adequate housing (s 26) and to health care,
food, water and social security (s 27).10
25.3 SECTION 25
(a) Structure of analysis of s 25(1)–(2)

In First National Bank, the Constitutional Court set out the structure of analysis of direct
applications of the property clause in the form of a set of questions:11
(a) Does the law or conduct complained of affect ‘property’ as understood by s 25?
(b) Has there been a deprivation of the property by the law or conduct?
(c) If there has, is the deprivation consistent with the provisions of s 25(1)?
(d) If not, is the deprivation justified under s 36 of the Constitution?
(e) If it is, does it amount to expropriation for the purpose of s 25(2)?
(f) If so, does the deprivation comply with the requirements of s 25(2)(a) and (b)?
(g) If not, is the expropriation justified under s 36?
An important conceptual point is that these questions treat expropriations as a subset of
the wider category of deprivations.12 In other words, all expropriations are deprivations
of property, but the converse is not true. For this reason, and unlike the Harksen test for
9
Section 28(1) of the interim Constitution contained a right ‘to acquire and hold rights in property’. This was
omitted from s 25. In Prior v Battle 1999 (2) SA 850 (Tk) the court invalidated provisions of the Transkei
Marriage Act 21 of 1978 as a violation of s 28(1). The provisions incorporated the Roman-Dutch institution of
the marital power, preventing married women from acquiring or disposing of property. The decision is
noteworthy as the first use of the constitutional property clause to invalidate legislation. The omission of a
positive right to property in the property clause was deliberate. According to Savage (note 3 above), the ANC was
willing to see a property clause in the Constitution that described the circumstances under which property could
be expropriated or regulated but did not wish the clause to contain a constitutional ‘guarantee’ or ‘restatement’ of
existing property rights. Attempts by the negotiating parties to find a suitable formulation of a ‘right to property’
along the lines of s 28(1) of the interim Constitution ran up against the ANC’s steadfast opposition (178–9).
‘Ultimately’, Savage writes, ‘it was agreed between the parties that no positive right to property would be
constitutionalised. Parties concurred that the inclusion of provisions in the Constitution prohibiting the arbitrary
deprivation of property and providing for the expropriation of property in certain circumstances and subject to
compensation, were perhaps more important safeguards and as such were adequate’ (181). In the First
Certification case (note 2 above [72]), the Constitutional Court held that a right to acquire, hold and dispose of
property was ‘implicit’ in s 25.
10
For an argument that the right might also encompass the third claim, see Van der Walt (note 1 above) at
34–42.
11
First National Bank (note 4 above) [46]. The questions are rephrased to make clear their application to all
cases of direct application of s 25.
12
Ibid [57].
534
Property 25.3
violations of s 9, none of the earlier steps in the test can be skipped in order to proceed
directly to one of the later steps.13 In other words, any challenge based on the property
clause must be adjudicated first by considering whether the law or conduct in question
meets the requirements of s 25(1) (steps (a) to (d)) and then, if an expropriation, the
requirements of s 25(2) and (3) (steps (e) to (g)).
(b) The meaning of ‘property’

Property has such a wide variety of meanings that it is almost impossible to define
accurately or exhaustively. For this reason, lawyers in the Roman-Dutch legal tradition
prefer to conceptualise property as a legal relationship between persons and corporeal
(physically tangible) things. Property is then narrowly defined as the object of this
relationship, the physical object of a real right. To avoid confusion, the theorists suggest,
we should avoid talking of property altogether but talk instead of rights. What is
valuable to us is not a thing itself but our legal relationship to that thing, which we speak
of as a right such as ownership or servitude. But the Constitution does not allow us to do
this. Section 25 does not refer to ‘rights’, or to ‘real rights’ or even to ‘ownership’ but
rather to a far broader and more inexact term—‘property’.
There are at least three possible meanings for the word ‘property’ as used in s 25.
First, the clause could refer to property itself, to those things with respect to which legal
relations between people exist. Second, the term could refer to the set of legal rules
governing the relationship between individuals and property—what the common law
terms property rights. Third, the term could refer to any relationship or interest having
an exchange value.14
The first of these understandings of the scope of property is relatively limited. The
second is wider and the third is the most extensive. Taking ‘property’ to mean economic
liberty in the widest sense would make the ambit of the property clause unduly
expansive, and would require the courts to police almost any intervention by
government in the private sphere15 and would severely hamper the ability of the
government to govern. Property cannot extend to every right or interest, even if it is a
right or interest of an economic nature. But too narrow an interpretation of what
property means deprives the right of any usefulness.16 In First National Bank the
Constitutional Court did not attempt a comprehensive definition of property, saying that
the exercise would be ‘practically impossible’ and ‘judicially unwise’.17
The Constitutional Court held in First National Bank that ownership of a corporeal
movable (a car, in this case) was a right clearly ‘at the heart of’ the constitutional
concept of property, both as regards the nature of the right as well as the object of the
right’.18 What fell within the term ‘property’ was the thing itself, and not the ownership
13
On the test in Harksen v Lane 1998 (1) SA 300 (CC) and departures from it, see para 9.2(b) in Chapter 9
below.
14
See, for example, Diepsloot Residents & Landowners Association v Administrator, Transvaal 1993 (3) SA
49 (T) where increases in crime, air pollution and a diminution in property values as a result of the settlement by
the state of a large body of squatters near an established suburb were taken to constitute an interference in
common-law property rights.
15
See Ferreira v Levin NO 1996 (1) SA 984 (CC) [182] (US jurisprudence interpreting property rights so as to
accord extensive constitutional protection to economic liberty is not appropriate for South Africa).
16
Law Society of South Africa v Minister for Transport 2011 (1) SA 400 (CC) [83].
17
Note 4 above [51].
18
Ibid. See also Port Elizabeth Municipality (note 5 above) [16] and [23].
535
right.19 The link between the thing that is protected by s 25 and the person asserting a
s 25 infringement was an ownership link in the First National Bank case. This link, the
court said, will determine whether or not there has been a deprivation of property.20 By
distinguishing between the property which is protected by s 25 and the relationship
which the litigant has with that property, the constitutional concept of property becomes
independent of the use which the rights-holder makes of the property or the value of the
property.21 So, in First National Bank the fact that the bank made no use of the vehicle
and had reserved a right of ownership to itself only for the purpose of securing payment
was irrelevant to the question whether the vehicle fell within the term property.22
Although the usefulness or value of a thing is irrelevant to its classification as property,
those factors may be relevant when determining whether a deprivation is arbitrary and,
if arbitrary, justifiable under s 36.23 It is at this level that the nature of the relationship
with the thing becomes important. Although it has not said so, it appears that the
Constitutional Court is willing to accept the object of any real right, even a limited real
right, as property for the purposes of s 25.24
In Laugh It Off 25 and Phumelela Gaming26 the Constitutional Court accepted,
without specifically considering the question, that intellectual property (trademarks in
the case of Laugh It Off and goodwill in the case of Phumelela) is protected by s 25.27 It
has subsequently confirmed that ownership of either corporeal or incorporeal property
enjoys protection under s 25.28
In Law Society and National Credit Regulator v Opperman the court included
personal rights within the term ‘property’. In Law Society29 it was argued that claims
against the Road Accident Fund for medical costs, loss of earning capacity and loss of
support are a bundle of rights which fall within the meaning of the term ‘property’ as
19
First National Bank (note 4 above) [53]–[54], National Credit Regulator v Opperman and Others 2013 (2)
SA 1 (CC) [61].
20
First National Bank (note 4 above) [51], [55].
21
One should not read too much into the obiter statement by the Constitutional Court in Law Society (note 16
above) that ‘in many disputes, courts will readily find that a particular asset of value or resource is recognised and
protected by law as property’ given the court’s recent restatement in Agri South Africa (note 5 above, [42]) that
value is not a necessary requirement in order for the object of a right to qualify as property.
22
First National Bank (note 4 above) [53]–[54].
23
Ibid; Agri South Africa (note 5 above) [42].
24
Ibid [61]–[63], Agri South Africa (note 5 above) [50]. Limited real rights were recognised as property in Ex
parte Optimal Property Solutions CC 2003 (2) SA 136 (C) [4]–[6], [19]. Lebowa Mineral Trust Beneficiaries
Forum v President of the Republic of South Africa 2002 (1) BCLR 23 (T) held that the property clause is confined
to land and other corporeals (31B–D). The court cites as authority the First Certification decision (note 2 above)
[74]. This is a misreading. All the Constitutional Court held is that the Constitutional Principles were not violated
by not expressly mentioning mineral rights in the property clause. It did not hold that mineral rights are not
property. They are: Agri South Africa (note 5 above) [41]–[44].
25
Laugh It Off Promotions CC v South African Breweries International (Finance) BV 2006 (1) SA 144 (CC).
26
Phumela Gaming and Leisure Ltd v Gründling 2007 (6) SA 350 (CC) [36]–[42].
27
Failure to mention a particular class or category of property in a constitutional property clause does not
mean that such a category or class is excluded, it being unusual to list the classes of property that are generally
accepted to be included in the generic term ‘property’. See Van der Walt (note 1 above) 123–125.
28
National Credit Regulator v Opperman 2013 (2) SA 1 (CC) [61], Law Society (note 16 above) [83].
29
Law Society note 16 above.
536
Property 25.3
used in s 25 and the court was prepared to assume that this argument was correct.30 In
Opperman the court was concerned with the right to restitution of money paid based on
unjustified enrichment and held that this claim constituted property within the meaning
of s 25.31 While it is not made terminologically clear in Law Society and Opperman that
it is the object of the personal right, being the performance by another, which is property
within the meaning of s 25 rather than the personal right itself, the reinforcement in
Opperman of the object/right distinction first drawn in First National Bank suggests that
the court intended to preserve this distinction when it brought personal rights within the
ambit of s 25.
The inclusion of personal rights within the term ‘property’ is not surprising. In
modern economic life, physical property in general, and land in particular, lost its status
as the defining attribute of wealth. A person’s wealth is no longer dependent on his or
her ownership of land, or of other physical assets. A great deal of private wealth consists
of personal rights: shares and unit trusts, private pension benefits, public welfare
entitlements, salaries, life insurance policies and the like. An equally important source
of wealth in the modern economy—intellectual property such as ideas, inventions, and
trade marks—is protected by rights that are not real rights, since their object has no
physical existence. To restrict the constitutional definition of property to real rights
would leave a great deal, if not most, of people’s assets unprotected from confiscation
by the state.32
Whether claims to participate in ‘government largesse’, for example, claims to certain
resources or performances such as state pensions, medical aid schemes, state jobs and
state contracts, should be included within the term ‘property’ is not settled.33
30
Ibid [81] and [84].
31
Opperman (note 28 above) [63] and [64].
32
There is foreign authority suggesting that the definition of property for the purposes of constitutional
protection should not be restricted to real rights. The most voluminous body of jurisprudence is that of the United
States. The Fifth Amendment to the US Constitution provides that no person may ‘be deprived of life, liberty or
property without due process of law; nor shall private property be taken for public use, without just
compensation’. The US courts have interpreted ‘property’ to include a number of rights with an important
economic value but that are not traditionally conceived of as property: for example, the right to a driving licence,
the right to tenure in employment, or to high school education. See M Chaskalson ‘The Problem with Property:
Thoughts on the Constitutional Protection of Property in the United States and the Commonwealth’ (1993) 9
SAJHR 388.
33
CA Reich ‘The New Property’ (1964) 73 Yale Law Journal 733 (‘new property’ is a right to an income,
including from social welfare programmes), AJ van der Walt The Constitutional Property Clause (1997) 40–41,
Van der Walt (note 1 above) 162–168. A South African case recognising that ‘new property’ is protected by the
property clause is Transkei Public Servants Association v Government of the Republic of South Africa 1995 (9)
BCLR 1235 (Tk). At issue was whether the employment benefits of civil servants, in particular their housing
subsidies, were property rights and therefore protected by s 28 of the interim Constitution. According to the
court, ‘to those schooled in traditional notions of property the idea that property might encompass interests
against the state, such as employment benefits and subsidies, might, at first blush, seem somewhat startling’. But
both popular and legal conceptions of property are broader than they used to be, and are no longer restricted to
thing ownership but have been replaced by a variety of social and economic interests and benefits such as state
contracts, pensions and medical benefits and employment rights. The court accepted that, on a cursory view of
the authorities, the meaning of ‘rights in property’ in s 28 of the interim Constitution was sufficiently wide to
encompass a state housing subsidy.
537
(c) Deprivation of property

(i) The relationship between deprivation and expropriation
Having defined what property is, it becomes necessary to ask what protection the
Constitution provides for property. Sections 25(1) and 25(2) distinguish between
‘deprivation’ of property and ‘expropriation’ of property and prescribe distinct
requirements for the legitimacy of each. Deprivation of property is permissible provided
that it is not arbitrary and is carried out in terms of a law of general application. An
individual has no right to compensation unless the deprivation also amounts to an
expropriation of that property.
In First National Bank, the Constitutional Court held that any interference with the
use, enjoyment or exploitation of private property is a deprivation of that property.
Expropriation, because it necessarily involves such an interference, is a form of
deprivation, but a particular and narrow form. Deprivation, in other words, is a wide
concept, encompassing expropriation. All expropriations are deprivations, but not all
deprivations will have the effect of expropriating property.34
Whether interference amounts to deprivation or expropriation depends upon the effect
of the interference on the relationship between the right-holder and the object of the
right. In other words, the court will consider the bundle of rights which define the
relationship (in an ownership context the right to use a thing, to exclude others from it,
to receive income from it and to transfer it to others on mutually agreeable terms) and
consider whether all of the incidents of the right are affected, or only some of them, and
the degree to which those incidents of the right which are affected are restrained.35
The approach adopted in First National Bank, namely that ‘any interference with the
use, enjoyment or exploitation’ of property suggested that all limitations of property
would be regarded as deprivations to be tested against the requirements of s 25(1).36 The
Constitutional Court retreated from this position in Mkontwana,37 however, holding
that:
Whether there has been a deprivation depends on the extent of the interference with or
limitation of use, enjoyment or exploitation. It is not necessary in this case to determine
precisely what constitutes deprivation. No more need be said than that at the very least,
substantial interference or limitation that goes beyond the normal restrictions on property
use or enjoyment found in an open and democratic society would amount to deprivation.38
The emphasis must be placed on whether there is ‘substantial interference’ rather than
on whether the interference goes beyond what is ‘normal.’39 Most legal restrictions on
property use (even restrictions along the lines of those challenged in First National Bank
and Mkontwana) are routinely encountered in ‘open and democratic societies’ and could
34
First National Bank (note 4 above) [57].
35
Ibid [100], Offıt Enterprises (Pty) Ltd v Coega Development Corporation (Pty) Ltd 2011 (1) SA 293 (CC)
[41], Mkontwana v Nelson Mandela Metropolitan Municipality 2005 (1) SA 530 (CC) [45].
36
First National Bank (note 4 above) [57], Van der Walt (note 1 above) 203.
37
Note 35 above.
38
Ibid [32] (Yacoob J).
39
Offıt Enterprises (note 35 above) [39]. This also appears to be how O’Regan J understood the Mkontwana
dictum in her dissenting judgment in Mkontwana (note 35 above). O’Regan J’s Mkontwana dissent which gave
deprivation a wide meaning was endorsed in Reflect-All (note 5 above) [37]–[38].
538
Property 25.3
be considered ‘normal’ and the function of s 25(1) is to test the justifiability of even
routine state interference with property.40
Van der Walt argues that the distinction between deprivation and expropriation
corresponds with the exercise of the (regulatory) police power in the former case and
the (primarily but not exclusively acquisitory) power of eminent domain in the latter
case. He would therefore determine whether interference constitutes deprivation or
expropriation not on the basis of its effect on the property, but rather on the basis of
the source of the power which constituted the interference.41 The proposition is
attractive. Distinguishing between deprivation and expropriation on the basis of
effect—whether or not the property was acquired by the state—is overly simplistic
for two reasons. Firstly, a person could be deprived of his or her property entirely
without it being acquired by the state (such as where property is destroyed by
regulation) and, secondly, property could be transferred from one person to another
by the state in circumstances where the state does not itself acquire the property.42
Nor can the two concepts be easily distinguished on the basis of expropriation being
permanent and deprivation temporary, as deprivation can be permanent in its limiting
effect, while expropriation might in certain circumstances be temporary.43 Van der
Walt’s approach would avoid the uncertainty introduced by the ‘substantial
interference’ test for determining when interference constitutes deprivation.
(ii) Law of general application

Any deprivation of property must, according to s 25(1), be authorised by a law of
general application. This law must not, moreover, ‘permit arbitrary deprivation of
property’. These requirements should be understood as conditioning or disciplining the
deprivation power of the state by requiring that it is exercised in accordance with law
and with due process.
The phrase ‘law of general application’ is also used in s 36 of the Constitution, which
permits limitation of fundamental rights only ‘in terms of law of general application’.
This means that limitation of rights is permissible only (i) where it is authorised by law,
and (ii) where that law is impersonal in the sense that it imposes burdens on an abstract
class.44 Section 25(1) imposes the same requirements for the deprivation of property: the
state may only deprive someone of property by a law which applies generally. The
requirement that the depriving law must be of general application will not be met where
an administrative official deprives someone of property without possessing any clear
40
For a critique of the Constitutional Court’s reformulation of the test for deprivation in Mkontwana see Van
der Walt (note 1 above) 204–206.
41
Van der Walt (note 1 above) 192.
42
Ibid 197–198. The majority, concurring and dissenting judgments in Agri South Africa (note 5 above) is an
example where the judges of the Constitutional Court disagreed on whether the Mineral and Petroleum
Resources Development Act 28 of 2002 (‘MPRDA’) resulted in deprivation or expropriation of mining rights.
The mining right was forfeited by the former right-holder under the MPRDA and became available to the state
for allocation to a third party. The majority held that this did not constitute expropriation, as the state did not
acquire the rights and could not exploit them; the state was merely a custodian of the rights and could allocate
them to a third party ([68]–[69]). Cameron J, in a concurring judgment, expressed a reservation as to whether
acquisition by the state was a necessary feature of expropriation [77] and Froneman J, in a dissenting judgment in
which Van der Westhuizen J concurred, held that the state had acquired the rights [79]–[81].
43
Van der Walt (note 1 above) 199–200.
44
See the discussion of the ‘law of general application’ requirement in para 7.2(a) in Chapter 7 above. Van der
Walt (note 1 above) 235.
539
statutory or common-law authority to do so. It will also not be met by a law targeting a
particular individual or group of individuals.45 However, because so much work is done
by the ‘arbitrariness’ qualification of s 25(1), the law of general application requirement
is unlikely to have much of a role to play in s 25 cases.46
(iii) Arbitrariness
Even if authorised by a law of general application, a deprivation will be unconstitutional
if its effect is to allow ‘arbitrary’ deprivations of property. In this regard, s 25(1)
provides greater protection to property holders than its predecessor. Section 28(2) of the
interim Constitution merely required deprivations to be ‘in accordance with a law’. This
corresponds to s 25(1)’s requirement that a deprivation must be ‘in terms of law of
general application’.47 The phrase ‘no law may permit arbitrary deprivation of property’
is an addition to the 1996 clause. It gives greater protection to property-holders against
the state’s powers to regulate property than was afforded under s 28 of the interim
Constitution. This takes the form of a protection against deprivations of property that are
not in accordance with due process, understood not only in a relatively narrow
procedural sense of the term, but also in a wider substantive sense.48 Procedural due
process means that deprivation of property must follow fair procedures, while
substantive due process means that a deprivation of property must not be arbitrary in
substance.
(aa) Procedural fairness

A deprivation that is procedurally unfair is arbitrary.49 Procedural fairness, in the
45
An example of such a law is the military decree which was the subject of Attorney-General of Lesotho v
Swissbourgh Diamond Mines 1997 (8) BCLR 1122 (Les CA). The decree purported to revoke five specified
mining leases. Its purpose was to prevent the holders of the leases from using them as a basis for an interdict
stopping further work on the construction of the Lesotho Highlands Water Project. The decree was overturned by
the Lesotho Court of Appeal on grounds that it was an uncompensated violation of the right to property.
46
In First National Bank (note 4 above) it took nine words to dispense with the requirement—‘section 114
clearly constitutes a law of general application’ [61]. See also the equally rapid treatment in Mkontwana (note 35
above) [83] (‘It is quite clear that section 118(1) does constitute a law of general application and this issue need
not trouble us further’). See also Opperman (note 28 above) [72] noting the conceptual difficulty in applying both
an arbitrariness and a limitations analysis. See also T Roux ‘Property’ in Woolman, Bishop & Brickhill (eds)
Constitutional Law of South Africa ch 46 2–5 arguing that law of general application issues will be decided
during the deprivation analysis.
47
In Park-Ross v Director: Offıce for Serious Economic Offences 1995 (2) SA 148 (C), a full bench considered
the constitutionality of certain provisions of the Investigation of Serious Economic Offences Act 117 of 1991,
including provisions for the seizure of documents and books. The court held that this was a deprivation of
property. Since s 28(2) went on to authorise such a deprivation in accordance with a law, it was obvious that there
may be a seizure of property pursuant to a search, provided that it was permissible in accordance with a law.
Section 6 of the Act would be such a law. The similar requirement of art 13 of the Malaysian Constitution that a
deprivation of property be ‘in accordance with law’ was taken by the Privy Council in Government of Malaysia
v Selangor Pilot Association [1978] AC 337 (PC) to require no more than a narrow procedural due process
enquiry. If a law effected a deprivation of property, then it was constitutional if was within the competence of the
Malaysian legislature to pass such a law.
48
Reflect-All (note 5 above) [35].
49
First National Bank (note 4 above) [67] and [100]. See also Janse van Rensburg NO v Minister van Handel
en Nywerheid 1999 (2) BCLR 204 (T), 221F (s 8(5)(a) of the Harmful Business Practices Act 71 of 1998 allowed
arbitrary deprivation of property by allowing the Minister of Trade and Industry to seize assets before the
completion of a proper investigation), Director of Public Prosecutions: Cape of Good Hope v Bathgate 2000 (2)
SA 535 (C) [82] (seizure of possessions under the Proceeds of Crime Act 76 of 1996 ‘may . . . constitute arbitrary
deprivation of property in terms of s 25(1)’), Metcash Trading Ltd v Commissioner for the SA Revenue Service
540
Property 25.3
context of a s 25(1) enquiry, is a flexible concept and the requirements that must be
satisfied to make an action or a law procedurally fair depend on all the circumstances.50
In Mkontwana the Constitutional Court considered an argument that s 118(1) of the
Local Government: Municipal Systems Act 32 of 2000 infringed the procedural fairness
guarantee of s 25(1). The legislation prevented owners of immovable property from
transferring that property until municipal service charges incurred by the occupiers of
that property had been paid, but failed to require municipalities to inform owners of the
existence or extent of any debt owed by an occupier.
‘This meant’, the argument went, ‘that owners were often taken by surprise by the
large amounts of consumption charges owing’ in respect of their properties.51 Fairness
in the circumstances, the court held, required a balance to be struck between the interest
of the owners in receiving notice of an occupier’s debts and the administrative burden
faced by municipalities in providing it:
The circumstances here are that the municipality has, or ought to have, a running accurate
record of the amounts that are due, a municipality would know if the amounts outstanding
are unreasonably high and it would be theoretically possible for the municipality to keep the
owner informed. The practical implications of a municipality assuming a responsibility of
this kind are considerable. Additional resources and processes need to be put in place. The
other side of this coin is that owners are, or ought to be, in a position to care for their
property, keep in touch with occupiers and monitor the occupation and use of their
properties. These considerations point to a conclusion that a municipality should not be
required to furnish the owner of property with information on a continuous basis for the law
to be procedurally fair. Owners also complain however that municipalities refuse to provide
information even if they are requested to do so. There is no basis for this refusal. The owner
has an interest to know how much is owing and a municipality is obliged to provide the
information if requested to do so.52
So, fairness requires a municipality to provide an owner of property with copies of all
accounts if the owner requests them and the absence of this requirement in the
legislation would make the deprivation in this case procedurally unfair. However, it was
possible to find in s 118(1) a necessary implication that the municipality is obliged to
furnish accounts to the owner on request where the property is not occupied by the
owner. On the basis of this interpretation the provision could be upheld.53
Procedural fairness also means that the state should exercise its powers in terms of
clear rules and principles set out in advance. The exercise of power is arbitrary
where it does not follow rules or precedents, where it is unpredictable. It follows that
where a discretionary power of deprivation of property is conferred by legislation,
that power will be arbitrary if there are insufficient or inadequate legal criteria to
govern its exercise.54 For example, legislation might grant the Minister of
Environmental Affairs the power to close a factory or impose severe constraints on
its operations without specifying criteria detailing when the power should be
2000 (2) SA 232 (W) (ss 36(1), 40(2) and 40(5) of the Value-Added Tax Act 89 of 1991 do not constitute arbitrary
deprivation of property).
50
Mkontwana (note 35 above) [65].
51
Ibid [65].
52
Ibid [66].
53
Ibid [67].
54
See also Janse van Rensburg v Minister of Trade and Industry 2001 (1) SA 29 (CC), Armbruster v Minister
of Finance 2007 (6) SA 550 (CC).
541
exercised. This would in effect permit the arbitrary deprivation of property in the
sense that there is no legal constraint over the power of the Minister. Moreover, such
legislation would prevent individuals from conforming their behaviour to an
identifiable and predictable legal standard.
The procedural element of s 25(1) therefore coincides with the administrative-law
concept of procedural fairness.55 The inclusion of the procedural element creates no
difficulties in cases such as First National Bank and Mkontwana where the
deprivation arises from legislation and there was no administrative action which
could be taken on review. In Reflect-All it was argued that the deprivation arose by
way of administrative action, but the Constitutional Court disagreed56 and thus
avoided the potential overlap of review and s 25 procedural fairness. For the most
part, the coincidence will be conceptual rather than practical, since the law of
general application requirement restricts s 25(1) challenges to law and not conduct57
and the empowering provision, rather than the action taken in terms of it, will be in
issue.58
(bb) Substantive arbitrariness

In addition to procedural considerations, the non-arbitrariness requirement of s 25(1)
imposes a second constraint on a law that effects a deprivation of property. It insists that
a law that deprives someone of property is not arbitrary in its substance. Arbitrariness in
substance is assessed, the Constitutional Court has held, by means of a test that is
specific to the property clause and that falls somewhere between a ‘mere rationality’
enquiry59 and the proportionality enquiry60 used to assess the legitimacy of limitations
of rights:
In its context ‘arbitrary’, as used in section 25, is not limited to non-rational deprivations, in
the sense of there being no rational connection between means and ends. It refers to a wider
concept and a broader controlling principle that is more demanding than an enquiry into
mere rationality. At the same time it is a narrower and less intrusive concept than that of the
proportionality evaluation required by the limitation provisions of section 36.61
After a lengthy analysis of foreign law on the subject, the Constitutional Court
extrapolated on the test as follows:
55
See also Van der Walt (note 1 above) 266.
56
Reflect-All (note 5 above) [83].
57
First National Bank (note 4 above) [100] ‘a deprivation of property is “arbitrary” as meant by section 25
when the “law” referred to in section 25(1) . . . is procedurally unfair’. See also Offıt (note 35 above [20] and
[40]) stating that the case concerned ‘ “conduct” that took place outside the terms of the law’. If the conduct
complained of constituted a deprivation of property (it did not on the facts), there would have been a violation of
s 25(1) as deprivations are permitted only in terms of law. See questions (a) to (c) in para 25.3(a) of this chapter,
above.
58
See, for example, Armbruster (note 54 above).
59
Means-ends rationality tests the connection between the purpose of an action and the results it achieves.
‘Actions are valued and chosen not for themselves but as more or less efficient means to a further end’: Jon Elster
Nuts and Bolts for the Social Sciences (1989) 22. ‘Mere rationality’, the test used to adjudicate alleged violations
of s 9(1), is neutral on the choice of means. If a means achieves the ends it is rational, no matter that other means
exist to do the same. See Prinsloo v Van der Linde 1997 (3) SA 1012 (CC) [36].
60
In limitations analysis, proportionality entails the evaluation of possible means to an end against a standard
of minimal harm to rights. So, if means A and means B will both achieve end C, means A must be preferred if it
does less harm to rights than means B.
61
542
Property 25.3
Having regard to what has gone before, it is concluded that a deprivation of property is
‘arbitrary’ as meant by section 25 when the ‘law’ referred to in section 25(1) does not
provide sufficient reason for the particular deprivation in question or is procedurally unfair.
Sufficient reason is to be established as follows:
(a) It is to be determined by evaluating the relationship between means employed, namely
the deprivation in question, and ends sought to be achieved, namely the purpose of the
law in question.
(b) A complexity of relationships has to be considered.
(c) In evaluating the deprivation in question, regard must be had to the relationship
between the purpose for the deprivation and the person whose property is affected.
(d) In addition, regard must be had to the relationship between the purpose of the
deprivation and the nature of the property as well as the extent of the deprivation in
respect of such property.
(e) Generally speaking, where the property in question is ownership of land or a corporeal
moveable, a more compelling purpose will have to be established in order for the
depriving law to constitute sufficient reason for the deprivation, than in the case when
the property is something different, and the property right something less extensive.
This judgment is not concerned at all with incorporeal property.
(f) Generally speaking, when the deprivation in question embraces all the incidents of
ownership, the purpose for the deprivation will have to be more compelling than when
the deprivation embraces only some incidents of ownership and those incidents only
partially.
(g) Depending on such interplay between variable means and ends, the nature of the
property in question and the extent of its deprivation, there may be circumstances when
sufficient reason is established by, in effect, no more than a mere rational relationship
between means and ends; in others this might only be established by a proportionality
evaluation closer to that required by section 36(1) of the Constitution.
(h) Whether there is sufficient reason to warrant the deprivation is a matter to be decided on
all the relevant facts of each particular case, always bearing in mind that the enquiry is
concerned with “arbitrary” in relation to the deprivation of property under section 25.62
The court’s analysis of the legislation that was in question in First National Bank
provides a good illustration of the application of this test. Section 114 of the Customs
and Excise Act 91 of 1964 creates a statutory lien over the property of a defaulting
taxpayer in favour of the South African Revenue Services (SARS). The lien extended
beyond the taxpayer’s own property or property specifically related to the tax debt in
question and applied to any property in the possession or under the control of the
taxpayer. In other words, the lien gave SARS a security right over property owned by
third parties other than the taxpayer.63 SARS had the power to detain and remove the
property and to sell it in execution of the tax debt without the need for a court order. The
third-party provisions of the Act were challenged in First National Bank. In a
straightforward credit sale, the bank had lent money to a taxpayer to buy a car but had
retained ownership of the car as security for the loan. The lender-taxpayer had fallen
into default on customs debt and SARS had seized and impounded the car (along with
other property found at the taxpayer’s premises), effectively depriving the bank of its
rights of ownership.
A deprivation is substantively arbitrary if there is insufficient reason for it. This
means, as a first step, that the reason for the deprivation must be ascertained and the
sufficiency, as a matter of justice and logic, of the relationship between the
62
Ibid [100].
63
Section 114(1)(ii).
543
deprivation and its purpose assessed. The deprivation of third-party property brought
about by the Act had the simple purpose of extracting payment of a customs debt.
The factors listed above indicate that, as a rule of thumb, the more extensive the
interference with property entailed by the law, the more compelling must be the
justification for that interference. The degree of interference effected by s 114 was
considerable:
it . . . sanctions the total deprivation of a person’s property under circumstances where (a)
such person has no connection with the transaction giving rise to the customs debt; (b)
where such property also has no connection with the customs debt; and (c) where such
person has not transacted with or placed the customs debtor in possession of the property
under circumstances that have induced the Commissioner to act to her detriment in relation
to the incurring of the customs debt.64
There was insufficient reason, in other words, to deprive a third party of ownership of its
property to satisfy a tax debt that was entirely unrelated to the owner. The deprivation
effected by s 114 was therefore arbitrary and unconstitutional.65
A ‘mere rationality’ analysis would not have sufficed to find the deprivation
arbitrary. The ends of the provision (collecting tax) are after all achieved by the
means of attaching the property of a third party, selling it and paying the proceeds to
the fiscus. The reason why s 114 is unconstitutional is that, in the words of
Ackermann J, it ‘casts the net too wide’. It unnecessarily and drastically infringes the
property rights of a third party to achieve goals that could have been achieved by a
far more proportionate means: attachment of the property of the tax-debtor alone.
This looks like the application of a proportionality test66 even though the
Constitutional Court said that the test it was applying was less intrusive than a
proportionality test.67 A proportionality test would create an undue restriction on the
powers of government if courts were able to enquire of certain far-reaching instances
of deprivation of property, whether less restrictive means could have been employed
to achieve the same purpose. Such a requirement would effectively mean that any
deprivation of property would have to be justifiable in accordance with the
limitations test in s 36. This would be to overextend the scope of s 25(1). A better
explanation for the result in First National Bank might be to focus on factor (c) of
the arbitrariness factors listed above. The measure is arbitrary because it seeks
payment for the tax debt of B by attaching the property of unlucky A, for no reason
other than that the property happens to have been in B’s possession at the time of
64
65
The section was declared an unconstitutional violation of the property right to the extent that it allowed
seizure of property belonging to someone other than the debtor. This left the section intact insofar as it relates to
property owned by the customs debtor. The court cast doubt about the validity of the remaining parts of s 114
vis-à-vis the right of access to court, but did not decide the issue (ibid [118]). (See the discussion of this aspect of
the case in para 31.3 in Chapter 31 below.) Section 114 has since been amended to remove all mention of the
statutory lien and to introduce a summary procedure for obtaining a judgment debt against a customs debtor
along the lines of the procedure in the Value-Added Tax Act 89 of 1991 that had been upheld in Metcash Trading
Ltd v Commissioner, South African Revenue Service 2001 (1) SA 1109 (CC): see s 112 of the Revenue Laws
Amendment Act 74 of 2002.
66
Ibid [108]. This term and cognate metaphors such as ‘overbreadth’ and ‘narrow tailoring’ are perhaps better
suited to proportionality analysis than to an analysis that is striving to be something other than proportionality
analysis. Cf the discussion of the misuses of ‘overbreadth’ in South African National Defence Union v Minister of
Defence 1999 (4) SA 469 (CC) [18].
67
See First National Bank (note 4 above) [65]: arbitrariness is ‘a narrower and less intrusive concept than that
of the proportionality evaluation required by the limitation provisions of section 36’.
544
Property 25.3
attachment. There was no satisfactory nexus in First National Bank between the
deprived property (A’s vehicles) and the purpose of the deprivation (collecting taxes
from B).
In its subsequent decision in Mkontwana, the court considered an argument that
there was a similar absence of a nexus between municipal debt-collection legislation
and the property that it targeted. As Yacoob J succinctly described its effect, s 118(1)
of the Local Government: Municipal Systems Act 32 of 2000 ‘places limits on the
owner’s power to transfer immovable property. The registrar of deeds may not effect
transfer of any property without a certificate issued by the municipality to the effect
that the consumption charges due during a period of two years before the date of
issue of the certificate have been paid’.68
The Constitutional Court reversed this decision and upheld s 118(1) as valid. In
the course of a summary of First National Bank’s holding on arbitrariness, the
majority placed a gloss on its earlier decision. According to Yacoob J,
. . . Ackermann J [in First National Bank] concluded that a deprivation of property is
arbitrary within the meaning of section 25 of the Constitution if the law in issue either fails
to provide “sufficient reason” for the deprivation or is procedurally unfair. To determine
whether there is sufficient reason for a permitted deprivation, it is necessary to evaluate the
relationship between the purpose of the law and the deprivation effected by that law. A
complexity of relationships must be considered in this assessment including that between
the purpose of the provision on the one side, and the owner of the property as well as the
property itself on the other. If the purpose of the law bears no relation to the property and its
owner, the provision is arbitrary. The customs law in issue in the FNB case fell into this
category. It permitted total deprivation of property even when the customs debt bore no
relationship either to the owner or to the property itself.
. . . The FNB judgment also sets out the approach to be adopted if there is a connection
between the purpose of the deprivation and the property or its owner. In these circumstances,
there must be sufficient reason for the deprivation otherwise the deprivation is arbitrary. The
nature of the relationship between means and ends that must exist to satisfy the section 25(1)
rationality requirement depends on the nature of the affected property and the extent of the
deprivation. A mere rational connection between means and ends could be sufficient reason
for a minimal deprivation. However, the greater the extent of the deprivation the more
compelling the purpose and the closer the relationship between means and ends must be.69
This reorders the First National Bank analysis. First, a category of deprivations is
described in which ‘the purpose of the law bears no relation to the property and its
owner’. Such ‘no relation’ deprivations are, without more, arbitrary.70 Deprivations in
which there is a relation between the property and the purpose are then analysed by way
of the First National Bank means-ends relational enquiry, characterised by the majority
as a ‘rationality’ enquiry.71 What is required is that the relationship between the property
68
69
Ibid [34]–[35] (footnotes omitted).
70
In her dissenting judgment O’Regan J applied the unreconstructed First National Bank analysis: ‘In my
view, the test established by First National Bank is one of “sufficient reason” in each case which must be
determined in the light of all the facts of the case’ (ibid [94]).
71
This is not an accurate way of describing the First National Bank test which is, a flexible standard of
scrutiny on a continuum between mere rationality and almost-proportionality. One hopes the majority is calling
the standard ‘rationality’ as a convenient shorthand rather than as an indication that the First National Bank
standard of scrutiny has been replaced with something less exacting.
545
and the purpose is ‘appropriate’, taking into account as a principal factor the extent of
the interference with property.72
Applying its version of the test, it is clear that the majority considered that there
was a relation between the purpose of the measure (collection of municipal debts
incurred in respect of the supply of services to a particular property) and ownership
of the property (the owner was made indirectly responsible for debts incurred in
supplying services to his or her property). Was the relationship ‘appropriate’? What
justifies a deprivation is the existence of a sufficient nexus (‘relationship’) between
the property and the purpose of the deprivation. Sufficiency depends on the extent of
the interference with property that the deprivation occasions. Here the deprivation
was not particularly extensive. It affected only one incident of the bundle of rights
making up ownership (the right to alienate) and affected it only temporarily (the
prohibition on transfer without a clearance certificate lasted only two years).73 Now,
since the parties were agreed that the use of the provision to collect service charges
incurred by the owner would not be arbitrary,74 what the arbitrariness enquiry
required was the presence of a relationship between the debt and the property owner
in the various possible scenarios in which the debt was incurred by an occupier other
than the owner. As the majority put it:
it is necessary to evaluate the relationship between the consumption charge and the property
relative to that between the consumption charge and the owner. The closer the relationship
between the consumption charge and the property, the more tenuous the link between the
consumption charge and the owner can be. Conversely, the more tenuous the link between
the consumption charge and the property the closer the consumption charge must be to the
owner to qualify as sufficient reason.75
It was held that it was not arbitrary to impose indirect liability on a property owner for
debts incurred by occupiers, essentially because the property owner benefited from the
supply of essential services to the property and because a property owner could be
expected to take steps to prevent illegal occupation of the premises or, in the case of
tenants, to choose a responsible tenant, monitor payment by the tenant of consumption
charges that are due and ensure that the agreement of tenancy is appropriately crafted.76
Mkontwana appears to qualify the First National Bank analysis without saying
that this is its intention and without saying why such a qualification is necessary.
Like First National Bank, Mkontwana turned on the existence of, and quality of, the
nexus between means and ends, between the purpose of a deprivation of property
and the impact of that deprivation on the rights of the property owner. Given the
relatively minimal impact of the measure on owners of property (temporary
deprivation of the right of alienation) it was appropriate to test the mere rationality
72
73
Ibid [45].
74
Ibid [46].
75
Ibid [51].
76
Ibid [53]. The same went for unlawful holders-over (occupiers who retain possession of the property after
the termination of a lease or some other legal relationship), because of the existence of a legal relationship
between the tenant and the occupier in the first place. In a usufruct, according to the court, ‘the relationship
between the consumption charge and the property is as close as it is in the case of a tenant’ [56]. In the case of a
fideicommissum, ‘the fiduciary is in effect the owner of the property until the condition is fulfilled and the
fideicommissary becomes the owner of the property after the condition is fulfilled. In the circumstances, the fact
that property is subject to a fideicommissum has no impact upon the arbitrariness or otherwise of section 118(1)’
[57].
546
Property 25.3
of the measure and not give consideration to the availability of alternative measures
with lesser impact on property.77
That the important considerations in substantive arbitrariness are the link between
the purpose of the deprivation and the property, and the extent to which the
rights-holder is deprived of his or her rights was made clear in Prophet where the
Constitutional Court held that the following factors are important in determining
whether a deprivation is arbitrary:78
1. The relationship between the purpose of the deprivation and the person whose property
is affected;
2. The relationship between the purpose of the deprivation, the nature of the property
affected and the extent of the deprivation;
3. A more compelling purpose is required where the property rights involved are the
ownership of land or corporeal movables;
4. The reasons should be more compelling as more incidents of ownership are affected;
5. Depending on the nature and extent of the rights affected, the test is one that comprises
elements of rationality and proportionality, moving closer towards proportionality as
the effects increase; and
6. The inquiry takes full account of the relevant circumstances of each case.
The relationship between the purpose of the provision and the property was decisive in
Armbruster and resulted in the Constitutional Court concluding that seizure of foreign
currency in terms of the exchange control regulations was not arbitrary.79 In Opperman,
the extent of the deprivation proved decisive, the Constitutional Court holding that as
the right to claim restitution was extinguished by s 89(5)(c) of the National Credit Act
34 of 2005 and, given the extent of the deprivation, the means chosen to accomplish the
legislative purpose should be narrowly framed and was disproportionate to the
purpose.80
(d) Expropriation
The Constitutional Court held in Agri South Africa that:
The approach to be adopted in interpreting section 25, with particular reference to
expropriation, is to have regard to the special role that this section has to play in facilitating
the fulfillment of our country’s nation-building and reconciliation responsibilities, by
recognising the need to open up economic opportunities to all South Africans. This section
thus sits at the heart of an inevitable tension between the interests of the wealthy and the
previously disadvantaged. And that tension is likely to occupy South Africans for many
years to come, in the process of undertaking the difficult task of seeking to achieve the
equitable distribution of land and wealth to all.81
(i) Expropriation defined

We have seen that deprivation is interference with property and that expropriation is a
subset of deprivation. We have also seen that the difference is not merely terminological
and conceptual, but has practical significance because of the requirement that
77
For a critique of these decisions and their differing approaches see Van der Walt (note 1 above) 250–252.
78
Prophet v National Director of Public Prosecutions 2007 (6) SA 169 (CC) [62].
79
Note 54 above.
80
Note 28 above [70]–[71].
81
Agri South Africa (note 5 above) [60].
547
expropriations are compensated, a requirement that does not attach to deprivations.82 It

is therefore important to distinguish between deprivations of property that do not
amount to expropriation (‘mere deprivations’) and those that do (expropriations).
In Harksen v Lane NO, following the Commonwealth jurisprudence and with
reference to the use and interpretation of the term ‘expropriation’ in South African
property legislation, the Constitutional Court indicated that expropriation for purposes
of s 28(3) of the interim Constitution (the equivalent of s 25(2)) means the compulsory
acquisition of rights in property by a public authority. (‘Compulsory’ means compelled
by law, as opposed to a voluntary alienation of rights.) Expropriation also requires an
appropriation of the rights by the expropriator.83
At issue in Harksen was whether s 21 of the Insolvency Act 24 of 1936 constituted an
uncompensated expropriation of property. The section provides that, on the
sequestration of the estate of an insolvent spouse, all the property of the solvent spouse
vests in the trustee of the insolvent estate. The trustee may deal with the solvent spouse’s
property as if it were the property of the sequestrated estate, subject to certain safeguards
allowing solvent spouses to reclaim their property, basically on proof that it is their own
property and not the property of the insolvent spouse. The Constitutional Court held that
the section did no more than temporarily divest the solvent spouse of property for
purposes of facilitating the determination of the ownership of that property by the
trustee of the insolvent estate. The purpose and effect of s 21 was not the permanent
divestment of the solvent spouse’s property. Property was merely temporarily vested in
the insolvent estate in order to place an onus on the solvent spouse to prove his or her
ownership of the property before he or she was entitled to have it returned to him or
her.84 So, it was clear that the section was not an expropriation. There was no
compulsory acquisition (or taking over) of a solvent spouse’s property by the insolvent
estate. On proof of ownership, the solvent spouse was entitled to the return of his or her
property.85
In contrast to expropriation, ‘mere deprivation’ involves an exercise of the state’s
regulatory powers over property rights that does not result in the right-holder being
dispossessed of those rights. A mere interference with property rights by the state will
not amount to expropriation. More is required. At a minimum, the state must acquire the
substance or core content of what the property owner was deprived of in order for
82
83
Harksen v Lane NO 1998 (1) SA 300 (CC) [32].
84
Harksen turns on the purpose and effect of the legislation in question: the Act was a mechanism to establish
who had the title to disputed assets by requiring a solvent spouse to prove ownership. It was not intended to take
the solvent spouse’s assets and transfer them to someone else. The judgment nevertheless puts some emphasis on
the temporariness of the interference and could be interpreted to hold that expropriation necessarily entails the
permanent divesting of property and its acquisition by the state. Temporary takings would therefore not
constitute expropriation. This interpretation should be resisted. Temporary acquisition and use should attract the
duty to compensate for the period of loss. See First English Evangelical Lutheran Church of Glendale v County
of Los Angeles, California 482 US 304 (1987) (temporary takings are not different in kind from permanent
takings and require payment of compensation for the use of the property during the period of their taking). See
also Chaskalson & Lewis (note 1 above) 31–15, who argue that temporary expropriation and use for what they
term an ‘expropriatory’ purpose should require compensation. Their example is the acquisition by a municipality
of a privately-owned building for six months while the municipality’s offices are being renovated. The purpose of
the acquisition is not the regulation of property (as in Harksen) but rather a temporary expropriation of property
that should be paid for. Another example is the temporary acquisition of land adjacent to public road-building
operations: see Minister of Transport v Du Toit 2005 (1) SA 16 (SCA) (taking of temporary right to use land for
access road and gravel pit must be compensated).
85
Harksen (note 83 above) [35]–[36].
548
Property 25.3
deprivation to constitute expropriation.86 Where deprivation does not result in property

being acquired by the state there can be no expropriation.87 An overly narrow
interpretation of what constitutes an acquisition will fail to give full effect to the
constitutional right, while an overly liberal interpretation will blur the line the
Constitution has drawn between the two concepts and undermine the transformational
imperative of s 25(4).88 The Constitutional Court held that it was therefore preferable to
determine whether interference constitutes acquisition on a case-by-base basis.89
Whereas in Harksen the Constitutional Court assumed that expropriation and
deprivation are non-overlapping and distinct categories,90 it held in Agri South Africa
that there may be an overlap between the two concepts and no bright-line of
separation.91 It is difficult to see how this could be so if the distinguishing characteristic
between the two concepts is acquisition by the state.
On the definition of expropriation as set out in Agri South Africa, there is no
expropriation if the state leaves property in private hands but imposes restrictions on its
use. These restrictions may go as far as to constitute an effective extinction of property
rights. However, as long as the rights are merely extinguished and are not acquired by
the public authority, the extinction will not amount to an expropriation.92 Examples of
deprivation in this sense would be zoning laws preventing a homeowner from running a
business from home, urban planning legislation preventing a landowner from erecting a
multi-story building in a suburban area,93 or environmental legislation which prevents a
farmer from ploughing near a river.
Steinberg v South Peninsula Municipality94 illustrates this characteristic of
expropriation. The court held that the announcement of a road scheme that would, if
implemented, require the expropriation of land, was not itself an expropriation.95
According to the SCA, ‘advance notification by a public authority of a possible or even
probable intention to embark on a course of conduct which, if ultimately persisted in,
must necessarily result in a taking is [not] to be equated to an expropriation. If this were
the law a public authority . . . would be obliged to acquire and compensate the owners of
all rights which might be affected by a proposed undertaking in the public interest, in
86
87
Ibid [59]. Cameron J disagreed with this reasoning at [77].
88
Ibid [63].
89
Ibid [64]. The majority and minority disagreed on whether or not there had been an acquisition [68], [71],
[81] and [90].
90
Ibid [32]–[35].
91
Ibid [48].
92
See for example, Government of Malaysia v Selangor Pilot Association [1978] AC 337 (PC) where
legislation was passed which prohibited private companies or individuals from operating pilotage services in
state-owned harbours. The effect of the legislation was to wipe out the goodwill accumulated over many years by
a private association which had, prior to the passage of the legislation, run a pilotage business. According to the
majority of the court, the loss of goodwill did not amount to a compulsory acquisition of property without
payment of compensation. The association’s goodwill was extinguished by the legislation and was not transferred
to, taken over or acquired by the public authority.
93
See Colonial Development (Pty) Ltd v Outer West Local Council 2002 (2) SA 589 (N) (the restrictions on
rights of use of land imposed by town planning restrictions do not involve expropriation of property).
94
Steinberg v South Peninsula Municipality 2001 (4) SA 1243 (SCA).
95
The decades-long delay in implementing the scheme (announced in 1974!) had driven the applicant to seek
an order directing the municipality to expropriate her property, which she had been unable to sell allegedly
because of the uncertainty created by the scheme.
549
advance of a final decision as to the extent of the undertaking or even whether it will be
implemented at all’.96
First National Bank, although it did not concern an expropriation, set out a second
characteristic of an expropriation, which is that it must be made as a result of an
expropriatory purpose.97 The fundamental injustice that the right to property seeks to
prevent is the acquisition of a public benefit at private expense. Laws that permit the
taking of property with this purpose in mind are expropriations, requiring the payment
of compensation from public funds. Laws that have another purpose but that have the
incidental effect of taking of property (the imposition of fines as a punishment for crime,
for example)98 without this purpose in mind are not.99
(ii) Compensation
Section 25(2) does not remove the power of the state to expropriate property but
subjects it to two constraints. First, an expropriation is permissible only ‘for public
purposes or in the public interest’. Second, an expropriation is subject to payment of
compensation for the property that has been taken.
The term ‘public purposes’ is most usefully defined in contrast to private purposes. It
would include an expropriation by the state for the purposes of carrying out its
administrative obligations, such as building a road, a bridge or a hospital.100 An
expropriation specifically for the benefit of a private individual or for the benefit of the
state’s commercial ventures would not be for a public purpose but a private purpose, and
would for that reason not be permissible.101 However, where an expropriation is not
96
Steinberg (note 94 above) [11]. In the United States, by contrast, unreasonable delays in the acquisition
process have been held to constitute takings: see, for example, Martino v Santa Clara Valley Water District 703
F 2d 1141, 1147 (9th Cir). In Steinberg, the SCA indicated (in heavily qualified and obiter passages) some
interest in the US doctrine of ‘constructive takings’. The court also said nothing about the rights of the applicant
in the event that a decision was made to implement the scheme. Should this happen, it is worth noting, the effect
of the long delay on the value of the land would have to be taken into account in assessing compensation. See the
text accompanying note 108 below.
97
See the illuminating discussion in First National Bank (note 4 above) [80]–[83] of the Australian High
Court jurisprudence dealing with s 51(xxxi) of the Australian Constitution. The court quotes the following
passage from the judgment of Brennan J in Mutual Pools & Staff Pty Ltd v The Commonwealth of Australia
(1994) 179 CLR 155 at 177–178: ‘In my view, a law may contain a valid provision for the acquisition of property
without just terms where such an acquisition is a necessary or characteristic feature of the means which the law
selects to achieve its objectives and the means selected are appropriate and adapted to achieving an objective
within power, not being solely or chiefly the acquisition of property. But where the sole or dominant character of
a provision is that of a law for the acquisition of property, it must be supported by s 51(xxxi) and its validity is
then dependent on the provision of just terms.’ This means that a law must have an expropriatory purpose (as
opposed to a merely incidental expropriatory effect—rather like Harksen). This explains, as the court in First
National Bank notes (note 4 above [83]) why laws with a purpose other than the acquisition of a public benefit at
private expense (such as tax laws or laws providing for the forfeiture of the proceeds of crime) are not
expropriations.
98
Another example is the recovery of debts through execution processes. See Geyser v Msunduzi Municipality
2003 (5) SA 18 (N) [250]–[251] (debt-recovery from a debtor distinguished from s 118 of the Local Government:
Municipal Systems Act 32 of 2000, which allows debt-recovery from a third party).
99
See Van der Walt (note 1 above) 344 for his proposed definition of expropriation.
100
The Expropriation Act 63 of 1965 defines ‘public purposes’ to include ‘any purposes connected with the
administration of the provisions of any law by an organ of State’. See Harvey v Umhlatuze Municipality 2011 (1)
SA 601 (KZP), Bartsch Consult (Pty) Ltd v Mayoral Committee of the Maluti-A-Phofung Municipality [2010]
ZAFSHC 11 (4 February 2010), eThekwini Municipality v Spetsiotis [2009] JOL 24536 (KZD).
101
Article 14(3) of the German Constitution provides that ‘expropriation shall only be permissible in the
public interest’. The public interest requirement has been interpreted to mean that expropriations cannot be
undertaken solely for the benefit of the state’s commercial interests or to benefit a private person. However, it is
550
Property 25.3
intended to benefit a private individual but the public at large, but effectively results in a
benefit to a particular individual (such as expropriation for purposes of redistribution as
part of a land reform programme), this may not be a public purpose. Such a transaction
would, however, clearly be in the public interest and would therefore be constitu-
tional.102 To dispel any doubt in this regard, s 25(4) stipulates that the term ‘public
interest’ must be interpreted so as to include ‘the nation’s commitment to land reform’,
and ‘reforms to bring about equitable access to all South Africa’s natural resources’.
Any property redistribution programme thus falls within the ambit of the public interest.
The compensation formula requires compensation for expropriated property to be
‘just and equitable’ in its amount, timing and in the manner of payment. The formula
was considered by the Land Claims Court in Former Highlands Residents, in re Ash
v Department of Land Affairs.103 Ordinarily, foreign property rights jurisprudence would
lead one to take ‘just and equitable’ compensation to mean market value
compensation.104 However, s 25 indicates that this is not necessarily so, and that
compensation worth less than market value (or, conceivably, more than market value)
may in some circumstances be just and equitable and therefore constitutional. Section
25(3) requires a balance to be struck between the public interest and the interests of
those affected by the expropriation. In attempting to strike this balance, the Constitution
directs the Court to take account of ‘all relevant factors’. Section 25(3) provides a list of
some of these factors, of which the market value of the property concerned is only one.
Nevertheless, the Land Claims Court pointed out, apart from factor (d) dealing with the
extent of state investment and subsidy, market value is the only factor on the s 25(3) list
that is objectively quantifiable. That makes market value pivotal to the determination of
compensation. Once market value has been determined, the court can then attempt to
strike an equitable balance between private and public interests. The interests of the
expropriatee may, for example, lift the compensation to above market value. Similarly,
the public interest may reduce the compensation to an amount that is less than market
value.105 The order of analysis, according to the Court, is therefore as follows:
the equitable balance required by the Constitution for the determination of just and equitable
compensation will in most cases best be achieved by first determining the market value of
the property and thereafter by subtracting from or adding to the amount of the market value,
as other relevant circumstances may require.106
possible for a private person to benefit from an expropriation as long as the expropriation is undertaken in the
execution of a public necessity. For example, in 66 BVerfGE 248 an expropriation of property for the purpose of
providing electricity was valid even though the power was supplied by a private company that would have made
a profit from the expropriation. Van der Walt (note 1 above) 479.
102
Expropriations for purposes of land reform have been the subject of case law in Australia, the Council of
Europe, Germany and the United States. Van der Walt (note 1 above) 462–493 summarises these decisions.
Legislation requiring property owners to tolerate the burial of occupiers and their family members will not
contravene the ‘public benefit or public purposes’ aspect of the property clause even though the ultimate
beneficiaries are the family members of the deceased. See s 6(2)(dA) of the Extension of Security of Tenure Act
62 of 1997 and Nhlabathi v Fick 2003 (7) BCLR 806 (LCC).
103
Former Highlands Residents, in re Ash v Department of Land Affairs [2000] 2 All SA 26 (LCC). The matter
reached the court as a compensation claim under the Restitution of Land Rights Act 22 of 1994. In terms of the
Act, claimants are not entitled to restitution if, at the time of dispossession, they received ‘just and equitable
compensation as contemplated in s 25(3) of the Constitution’ for their property (s 2(2)).
104
Ibid [33]. See A Eisenberg ‘Different Formulations of Compensation Clauses’ (1993) 9 SAJHR 412.
105
Highlands Residents (note 103 above) [34].
106
Ibid [35]. See also, Khumalo v Potgieter [2000] 2 All SA 456 (LCC). The test was applied (but without a
clear endorsement of its correctness) in Abrams v Allie NO 2004 (9) BCLR 914 (SCA) [15].
551
As to market value, the Land Claims Court adopted a test known to Commonwealth
expropriation jurisprudence as the Pointe Gourde principle. Following the decision of
the Privy Council in Pointe Gourde Quarrying & Transport Co Ltd v Sub-intendent of
Crown Lands (Trinidad),107 market value at the time of expropriation must be
determined by disregarding any windfall increase or decrease in the market value of the
expropriated property arising from the carrying out, or the proposal to carry out, the
expropriating scheme. This is necessary because a scheme of expropriation often has the
effect of distorting the market.108 In the case of a township expropriated in terms of the
Group Areas Act, this required thinking away the negative effects of the Group Areas
scheme on the market value of the expropriated land. The court therefore accepted
expert valuations that were based on a comparison with voluntary sales of land in a
nearby township that had not been influenced or impeded by Group Areas legislation.109
The court then added to this a valuation of the depreciated replacement costs of any
improvements to the land to arrive at a final market value for the expropriated assets.110
Having established the market value, the court then considered whether it should
be adjusted upwards or downwards in the determination of ‘just and equitable
compensation’. This required evidence relating to the interests of the affected
individuals and the public interest and to the factors listed in s 25(3). However, in
the Highlands case, the only acceptable evidence that had been led related to market
value and the court therefore found that the market value constituted just and
equitable compensation in the circumstances.111 This approach was endorsed by the
Constitutional Court in Du Toit v Minister of Transport.112
As for the other factors listed in s 25(3), there is obviously no precise method for
calculating values that are based on considerations of equity and justice or of
weighing the various factors against each other, and the facts and circumstances of
each case will determine the method and outcome of this process.113 For example,
factor (a) (current use of the property) may be decisive where property is not
currently utilised by its owners or which is held simply for speculative purposes. In
such a case, compensation calculated at less than market value (perhaps even at nil
value or a nominal value) may be just and equitable. This is particularly likely to be
107
Pointe Gourde Quarrying & Transport Co Ltd v Sub-intendent of Crown Lands (Trinidad) [1947] AC 565
(PC). The principle is incorporated in s 12(5)(f) of the Expropriation Act 63 of 1975: ‘[in calculating market
value] any enhancement or depreciation, before or after the date of notice, in the value of the property in
question, which may be due to the purpose for which or in connection with which the property is being
expropriated or is to be used, or which is a consequence of any work or act which the State may carry out or
perform or already has carried out or performed or intends to carry out or perform in connection with such
purpose, shall not be taken into account’.
108
See, for example, May v Reserve Bank of Zimbabwe 1986 (3) SA 107 (ZSC) where an announcement that
foreign shares trading on the Zimbabwe stock exchange would be expropriated led to the reduction of a market
premium on the shares from 77 per cent at the time of the announcement to 30 per cent at the time of the
expropriation. In the United States, the negative effect of planning decisions or the announcement of future
expropriation schemes on the market is known as ‘precondemnation blight’. See, generally, G Kanner
‘Condemnation Blight: Just How Just Is Just Compensation?’ (1973) 48 Notre Dame LR 765.
109
Highlands Residents (note 103 above) [68].
110
Ibid [51]. ‘Depreciated replacement costs’ means the current price of replacing a particular improvement
(such as a house) minus the likely depreciation in the value of that improvement since the date of expropriation
(in this case, between 1960 and 1967). In terms of an agreement between the parties, the depreciation was
calculated at 50 per cent.
111
Ibid [81].
112
Du Toit v Minister of Transport 2006 (1) SA 297 (CC).
113
Van der Walt (note 1 above) 504.
552
Property 25.3
the case where the property in question is a scarce and needed resource, such as land
or water rights.114
(iii) Timing and manner of payment of compensation

In terms of s 25(2)(b), property may be expropriated only ‘subject to compensation, the
amount of which and the time and manner of payment of which have either been agreed
to by those affected or decided or approved by a court’. This requires, generally, that the
determination of compensation takes place prior to expropriation and the taking
possession of the affected property. However, this is not an inflexible rule. The
Expropriation Act 63 of 1975 allows the transfer of ownership and possession of an
expropriated property to the state prior to the determination and payment of
compensation. This is not incompatible with s 25.115 There may be cases in which it will
be ‘difficult, if not impossible, to determine just and equitable compensation before
expropriation and the taking of possession of the affected property’.116 In such cases,
compensation must be determined as soon as reasonably possible.117 Eviction following
expropriation may not take place unless agreed upon by the parties or under court
supervision.118 A court may order eviction only in accordance with the principles of
justice and equity required by s 25(3) and s 26(3) of the Constitution.119
(e) Direct horizontal application of the property right

Section 8, the application section of the Bill of Rights, provides for the direct horizontal
application of fundamental rights in certain circumstances. Direct horizontal application
means that the rights protected in the Bill bind not only the state in its relations with
individuals, but that individuals may, where appropriate, directly assert their
constitutional rights both against the state and against other individuals. Specifically,
s 8(2) provides that a provision of the Bill of Rights will bind individuals ‘if, and to the
extent that, it is applicable, taking into account the nature of the right and of any duty
imposed by the right’.120
It seems unlikely that any part of s 25 will have meaningful direct horizontal
application. The section protects individuals against arbitrary ‘deprivation’ of property
and uncompensated ‘expropriation’ of property. Only the state is capable of depriving
people of property (and must, in any event, do so with authority of law), while
114
G Budlender ‘The Constitutional Protection of Property Rights’ in G Budlender et al Juta’s New Land Law
(1998) 1–58. Factor (b) (history of acquisition and use) proved decisive in adjusting a compensation award
downward (ie, below market value) in Khumalo v Potgieter (note 106 above). Land had been acquired by the
expropriatee after commencement of the Land Reform (Labour Tenants) Act 3 of 1996. The Act, which protected
labour tenants from eviction and which provided for expropriation of the land which was the subject of a labour
tenancy agreement, had the effect of depressing land values where labour tenants were in occupation. Having
discounted the effect of the Act on values for purposes of calculating market value (in accordance with the Pointe
Gourde principle), the court took into account that the owner had bought after commencement of the Act and at
well below the market value as calculated by the court. Awarding market value in the circumstances would result
in a windfall for the owner which would be unfair to the fiscus and would not reflect an equitable balance
between the public interest and the owner’s interests [96].
115
Haffejee (note 5 above) [35], [42].
116
Ibid [39]. According to the court, ‘urgent expropriation in the face of natural disaster is one example, and
there are others’.
117
Ibid [43(c)].
118
Ibid [43(d)].
119
Ibid [43(e)].
120
553
expropriation means the compulsory taking over of property by the state to obtain a
public benefit at private expense.121 There is little point in saying that an individual has
a duty not to deprive another individual of property arbitrarily, or not to expropriate his
or her property without compensation.122 Accordingly, the duties imposed by s 25(1)
and (2) are imposed only on the state and not directly on private individuals. The
remainder of s 25 imposes a number of legislative and administrative duties on the state.
These can have no horizontal application.123
(f) Indirect application of the property right

The First National Bank structure of analysis outlined above is applicable to direct
property right challenges, ie to the adjudication of allegations that law or conduct is a
violation of s 25 and therefore invalid. This does not, of course, exhaust the possible
applications of the property right. Indirect application of s 25 entails the interpretation of
legislation to conform to the right and to avoid a finding that legislation violates s 25. It
also entails the development of the common law in the light of s 25.
Section 25 imposes an obligation to interpret124 and implement125 legislation to avoid
arbitrary interference with, and uncompensated or inadequately compensated expropria-
tions of property. The constitutional right to compensation requires legislation to be
interpreted, in cases of doubt, as requiring the payment of just and equitable
compensation for expropriation.126 This may entail reading in the factors listed in
s 25(3) into old-order legislation that typically provides only for market-value
121
See Phoebus Apollo Aviation CC v Minister of Safety and Security 2003 (2) SA 34 (CC) [4] (s 25(1) is
aimed at protecting private property rights against governmental action).
122
Ibid. But see Modderfontein Squatters, Greater Benoni City Council v Modderklip Boerdery (Pty) Ltd 2004
(6) SA 40 (SCA) [21] which holds that an unlawful occupation of private land by squatters and a refusal by them
to obey an eviction order is an infringement of s 25(1). Nevertheless, the issue in the case was less the behaviour
of the squatters than the failure of the state to protect the property rights of the owner by enforcing the eviction
order or expropriating the land. See, further, the discussion of this case in (f) below.
123
The decisions in Minister of Education v Syfrets Trust Ltd NO 2006 (4) SA 205 (C) and Ex parte BOE Trust
Ltd 2009 (6) SA 470 (WCC), in which courts were called upon to determine whether freedom of testation (which
was found to be an element of the right to property) entitled a testator to exclude certain categories of persons
from the benefits of testamentary trusts in potential violation of s 9 of the Constitution (the equality clause), are
not examples of direct horizontal application of the Bill of Rights, notwithstanding the language employed by the
courts in those decisions. Rather, they are concerned with the scope and ambit of s 25(1). The right that was of
direct application between those excluded from the testamentary trust and the testator was the equality right and
not the property right.
124
See, for example, Nkosi v Bührmann 2002 (1) SA 372 (SCA) [36]–[38]. The Extension of Security of
Tenure Act 62 of 1997 gave rights to family members to visit and maintain family graves on private land
belonging to someone else. The Act was silent as to whether graves could be established by occupiers as of right.
To read the Act as granting a right to establish graves on someone else’s land would amount to an uncompensated
‘appropriation’ of a right of way, and should therefore be avoided. (The decision has been overtaken by a
subsequent amendment to the ESTA which grants a right of burial: see the text accompanying note 152 below).
See also De Beers Consolidated Mines Ltd v Ataqua Mining (Pty) Ltd [2007] ZAFSHC 74 (13 December 2007)
finding that the MPRDA does not extend to tailings dumps.
125
See Ndlovu v Ngcobo 2003 (1) SA 113 (SCA) [17] (the eviction provisions of the Prevention of Illegal
Eviction from and Unlawful Occupation of Land Act 19 of 1998 cannot be used to expropriate someone
indirectly); Premier, Eastern Cape v Cekeshe 1999 (3) SA 56 (Tk), 103 (property right ‘must have a bearing on
the exercise of administrative functions by government functionaries in a context where the property rights of an
individual are likely to be adversely affected’).
126
See South Peninsula Municipality v Malherbe NO 1999 (2) SA 966 (C). The municipality had argued that
a town-planning ordinance permitted it to impose a condition on a grant of planning permission that required the
applicant to create a public servitude over part of his land, without payment of compensation. The ordinance did
not permit this, the court held. But even if there had been any ambiguity about the legislation, s 25 would rule out
interpreting it as allowing uncompensated expropriation (983E–G).
554
Property 25.3
compensation. Where possible, this is the preferable approach to declaring such

legislation unconstitutional. This is illustrated by Du Toit v Minister of Transport,127
which dealt with an expropriation in terms of powers granted by the National Road Act
54 of 1971. The Act allowed expropriation of land and associated rights for purposes of
constructing roads, subject to the payment of compensation determined in terms of the
criteria in the Expropriation Act 63 of 1975. The Expropriation Act in essence provides
for market-value compensation and makes no reference to the other factors listed in
s 25(3). It does however, in s 12(1)(bb), also provide that a court must determine
compensation ‘in a suitable manner’ where there is no market for the property or rights
in question. These words were crucial. The fact that the property expropriated
(temporary use of land and permanent acquisition of an amount of gravel dug out of the
land) did not, in the judgment of the court, have a market value permitted the
employment of the open-ended standard of s 12(1)(bb) and not the restrictive criterion
of market value. The court could import the constitutional criteria into the Act: ‘. . . I am
bound to apply s 12(1)(bb) of the Act, viz to determine compensation “in any other
suitable manner”. This undertaking is clearly wide enough to permit the importation of
the constitutional values and principles set out in s 25(3). There is thus no conflict
between s 12(1)(bb) [of the Expropriation Act] and s 25 [of the Constitution]’.128 Of
course, as the court pointed out, this left unresolved the question of the constitutionality
of the rest of s 12 of the Act and its insistence on market value alone as the standard for
compensation. This is an issue that probably cannot be sidestepped by re-interpreting the
Act, and must be confronted as an issue of direct application of s 25.129 On appeal, the
SCA held that the High Court had erred in applying s 12(1)(bb) of the Expropriation Act
to the temporary taking of a use right. The appropriate provision that should have been
used was s 12(1)(b) of the Act, which confined compensation to actual financial loss
incurred by the expropriatee. ‘It was not argued’, the SCA held, ‘nor could it have been,
that these provisions of the Act are in conflict with the Constitution’.130
The effect of the property right on the development of the common law is illustrated
by Ex parte Optimal Property Solutions CC131 which involved an application for the
removal of restrictive conditions on title deeds of land. The owner wished to subdivide a
single erf into three erven and develop each individually. However, the restrictive
condition prevented the erection of more than one house on each original erf. To remove
the condition, the owner applied to the High Court in terms of its common-law power to
remove or modify such restrictions. Because this power entails the dissolution of rights,
it can only be exercised with the consent of the other right-holders (ie, the owners of the
dominant tenements for whose benefit the restrictive condition was originally
imposed).132 For practical reasons, the courts have long permitted consent to be inferred
from a failure to object after notice of the rule nisi has been served on the affected
owners. Sometimes, where large numbers of right-holders are involved, the courts have
127
Du Toit v Minister of Transport 2003 (1) SA 586 (C).
128
Ibid [30] (Jamie AJ).
129
The most appropriate remedy is likely to be a reading-in of the constitutional compensation formula into
the Expropriation Act. However, such a remedy is only available following a declaration of unconstitutionality of
provisions of the Act. See, further, in para 8.6(a)(ii)(bb) in Chapter 8.
130
Note 84 above [8].
131
Note 24 above.
132
Restrictive conditions are reciprocal praedial servitudes, reciprocally binding each owner of an erf in a
township as the owner of a servient tenement vis-à-vis all the other owners (as owners of dominant tenements).
555
permitted something less than direct service of the rule nisi on the affected parties.133
The issue in this case was whether publication of the rule nisi in two Cape Town
newspapers and direct service only on the Western Cape Premier’s office, the
municipality and the registrar of deeds would suffice. Because removal of the restriction
would be a deprivation of property rights, the issue had to be decided taking s 25 into
account:
The provisions of s 25(1) do not affect the power of the Court to accede to an application to
remove a relevant title deed restriction with the consent of all affected parties. They do,
however, reflect the importance of property rights and they provide limitations which
constrain any removal of, or interference with them. In affording relief in matters such as the
instant application, it is essential, if the right enshrined in s 25 is to be adequately respected,
that the principle of ‘inferred consent’, which has historically been the rationale for granting
relief where there is no objection pursuant to a rule nisi, be applied on the basis of the Court
being satisfied on a balance of probability that service in terms of the rule has achieved
effective notice to the affected parties. There is no warrant to accord preference to an
applicant who wishes to obtain the cancellation of a servitude, but finds it inconvenient
(rather than impossible, or at least reasonably impracticable) to give personal notice to each
of the right holders, over the property owners whose rights are liable to be affected.134
In the result, the court held that steps should be taken to identify and provide individual
notice by registered post to all affected right-holders and all ratepayer’s organisations
representing property owners’ interests in the area.135
In a series of decisions the Constitutional Court and the Supreme Court of Appeal
have considered the effect of the 1996 Constitution on the common law with
particular reference to the state’s duty, imposed by s 7(2), to ‘respect, promote and
fulfil the rights in the Bill of Rights’.136 In the Modderklip case, the SCA
summarised the effect of these decisions as follows: ‘Governments have a duty to
protect their citizens, not only through appropriate legislation and effective
enforcement but also by protecting them from damaging acts that may be perpetrated
by private parties.’137 The ‘duty to protect’, in the context of the right to property,
mandated the development of a remedy to compensate a landowner who had been
the victim of a land invasion but had received no assistance from the state in
evicting the invaders.138
133
Ex parte Optimal Property Solutions (note 24 above) [10].
134
Ibid [20].
135
Ibid [31].
136
Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC), Bannatyne v Bannatyne 2003 (2) SA
363 (CC), Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA), Van Eeden v Minister of
Safety and Security 2003 (1) SA 389 (SCA) [13]–[14], Minister of Safety and Security v Hamilton 2004 (2) SA
216 (SCA), Minister of Safety and Security v Carmichele 2004 (3) SA 305 (SCA), Rail Commuters Action Group
v Transnet Ltd t/a Metrorail 2005 (2) SA 359 (CC) [71].
137
Note 122 above [27], quoting Social and Economic Rights Action Center and the Center for Economic and
Social Rights v Nigeria Fifteenth Annual Activity Report of the African Commission on Human and Peoples’
Rights (2002) [57] [available at <http://www.achpr.org/files/activity-reports/15/achpr30and31_actrep15_
20012002_eng.pdf>].
138
The remedy, described as constitutional damages, was in effect an entitlement to compensation calculated
in terms of the Expropriation Act for the loss of use of the land for the period of the occupation. Ibid [43] and
[52]. See also City of Johannesburg (note 5 above) [37] and [40].
556
Property 25.3
(g) Limitation of property rights

Section 36 of the Bill of Rights is the general limitation clause, so-called because it
applies generally to all the rights listed in the Bill of Rights. This means that the process
of considering the limitation of fundamental rights must be distinguished from that of
interpretation of the rights.139 This is the ‘two-stage’ approach to Bill of Rights
litigation. If it is argued that conduct or a provision of the law infringes a right in the Bill
of Rights, it will first have to be determined whether that right has in fact been infringed.
The second stage commences once it has been shown that a right has been infringed.
The respondent (usually the state) is required to show that the infringement is a
justifiable limitation of the right. This entails showing that the criteria set out in s 36 are
satisfied: the right has been limited by law of general application for reasons that can be
considered reasonable and justifiable in an open and democratic society based on human
dignity, equality and freedom.
The difficulty with applying the two-stage analysis to the limitation of s 25 is that
many of the criteria which justify the limitation of rights have been included in the
demarcation of the s 25 rights themselves.140 This has the effect of making the basis for
justifying the infringement of s 25 the very reason why s 25 was infringed in the first
place. For example, s 25(1) can be infringed by a deprivation of property by means other
than a law of general application. On the two-stage approach, once the infringement has
been shown, it is for the state to show that the infringement is a justifiable limitation in
accordance with s 36. This will require it to show that the limiting measure is a law of
general application. This is, of course, impossible since it was the absence of a law of
general application that was the reason for the finding, in the first stage, that there had
been an infringement of s 25(1).
The same logical difficulty also affects the other s 25 guarantees. Section 25(1) can be
infringed by a measure which constitutes an arbitrary deprivation of property.
‘Arbitrary’ means, at its simplest, that there is insufficient reason for the deprivation.141
Justification by reference to s 36 would therefore require the state to show that a
measure taken without good reason is reasonable.142 Section 25(2) is infringed by
expropriation by means other than law of general application,143 or an expropriation that
is not for a public purpose or in the public interest, or (when read with s 25(3)) an
expropriation without just and equitable compensation. An expropriation for private
purposes or to serve private interests could hardly be justifiable in an open and
democratic society where the purpose of government is to serve the public and no other
interest. Section 25 requires compensation for an expropriation to be fair and equitable
in amount, timing and manner of payment. Compensation not meeting this requirement
will be unfair and inequitable and can hardly be considered reasonable and justifiable.
It seems then that s 36 can have no meaningful application to s 25. The rights in s 25
have been qualified to such an extent that it is unlikely that any violation of those rights
139
See para 7.1(b) in Chapter 7 above.
140
On demarcation and internal limitation of rights, see para 7.4 in Chapter 7 above.
141
142
See S v Lawrence 1997 (4) SA 1176 (CC) [41]: ‘arbitrariness is incompatible with . . . a society [based on
freedom and equality]’.
143
Both Van der Walt (note 1 above) 452 and Roux (note 46 above) argue that the consideration whether the
expropriation is in terms of a law of general application will arise at the deprivation stage and will not be
considered again at the expropriation stage.
557
can be justified. Put another way, if an applicant is able to discharge the difficult burden
of showing that the rights in s 25(1)–(3) have been violated, the state will be unable to
justify the violation in terms of s 36.
In First National Bank, the Constitutional Court acknowledged the difficulties of
applying the limitation clause to a violation of s 25(1) but found it unnecessary to decide
the question whether the property right could ever be justifiably limited. The cursory
limitation enquiry that the court performed in this case illustrates the circularity
problem. The extensive infringement of rights in question in the case (the extinction of
ownership rights in order to provide the state with an execution object for the customs
debt of a third party) was ‘grossly disproportional’ to the achievement of any legitimate
government purpose and clearly was not justifiable.144 In other words, the very reasons
why the property right was limited by the law in question are the same reasons why the
limitation is not justifiable.145
There are two High Court decisions that have attempted to apply s 36 to legislation
that infringed s 25. In Janse van Rensburg NO v Minister van Handel en Nywerheid146
the court held that s 8(5)(a) of the Harmful Business Practices Act infringed s 25(1) and
that the infringement was not justifiable under s 36. This finding supports the view that
the arbitrary deprivation of property can never be ‘reasonable and justifiable in an open
and democratic society based on human dignity, equality and freedom’. However, in
Director of Public Prosecutions: Cape of Good Hope v Bathgate147 the court, after
finding that the Proceeds of Crime Act 76 of 1996 may infringe s 25(1), went on to hold
that the infringement was nevertheless justified in terms of s 36(1).148 Significantly,
however, the court’s limitation analysis was undertaken jointly in respect of
infringements of the right to dignity, the right to privacy and the right not to be
arbitrarily deprived of property. The decision to apply s 36 was therefore not specific to
the finding that s 25(1) had been infringed, nor is the finding that the legislation was a
constitutionally justifiable limitation of rights.
In Nhlabathi v Fick149 the Land Claims Court held that legislation granting a right to
family members of a deceased ESTA occupier150 to bury the deceased on the land they
occupied was an uncompensated expropriation of property. The court went on to hold
that the legislation was a justifiable limitation of s 25(3). The legislation (s 6(2)(dA) of
ESTA) was held to be a minimal interference with the property right, necessary to
protect important cultural and religious interests.151 The preferable approach in this case
would have been to focus on the ‘just and equitable’ standard for the assessment of
compensation. The balancing of the financial loss to the owner (minimal in this case)
against the compelling interests of the beneficiaries, in addition to other factors such as
144
First National Bank (note 4 above) [110]–[113].
145
See also Opperman (note 28 above) [72] noting the conceptual difficulty in applying both an arbitrariness
and a limitations analysis.
146
Note 49 above.
147
Note 49 above.
148
Ibid [113].
149
Note 102 above.
150
A person with a right to occupy in terms of the Extension of Security of Tenure Act.
151
Ibid [35].
558
Property 25.3
the past use of the property,152 indicates that nil compensation is arguably just and
equitable in the circumstances.
(h) Section 25(5)–(9): restitution and redistribution of property

In 1913 the Natives Land Act was enacted. That Act, together with the Native Trust and
Land Act of 1936 determined where black persons153 were entitled to live. Black
persons could purchase, hire or occupy land only in those areas designated in terms of
the legislation. White persons could not sell land outside of scheduled areas to black
persons and most of the land in South Africa became, as a result, capable of ownership
by white persons only. Land which vested in the South African Native Trust for the
‘exclusive use and benefit of natives’ could be acquired by black persons under quitrent
tenure or occupation under permission to occupy. Full ownership title was not available.
Occupation could not be vacated for more than a year without permission without the
land reverting to what was called the ‘commonage’ for reallocation. Tenure was,
therefore, precarious and legally insecure. Tribal authorities and traditional leaders
allotted land and indigenous law applied to such land. That land was administered in this
way was part of the colonial and apartheid scheme, which took such steps as a prelude to
the assignment of black persons to ethnically-based homelands of which they were
ultimately intended to assume citizenship. Black persons were removed from and
dispossessed of the land they occupied in order to be moved to the land that this
legislative scheme had reserved for them, leaving the majority of black persons
dispossessed of land and without legally secure title in land.154 Past mining legislation,
the dispossession of land and the general history of racial discrimination in South Africa
prevented black persons from accessing mineral resources.
One of the Constitution’s goals is to restore land and resources to those people and
communities who were dispossessed of it. It also requires that those whose tenure of
land is legally insecure as a result of racially discriminatory colonial and apartheid laws
be provided with secure tenure of comparable redress.155 Sections 25(5)—25(9) of the
property clause contains a number of provisions relating to the restitution and
redistribution of property.156 Because of this transformational imperative, one cannot
over-emphasise property rights at the expense of the state’s social responsibilities.157
Section 25(5) is a socio-economic right requiring the state to implement measures
aimed at achieving land redistribution.158 Section 25(7) grants a right to restitution, ‘to
152
The burial right granted by ESTA is only available where an ‘established practice’ exists in terms of which
the owner or person in charge of the farm routinely gave permission to people residing on the farm to bury
deceased members of their family on the farm in accordance with their religion or cultural belief.
153
Used here in the generic sense to mean all persons who were not classified as white persons.
154
This necessarily superficial historical account is paraphrased from Tongoane and Others v National
Minister of Agriculture and Land Affairs 2010 (6) SA 214 (CC) [10]–[27]. See also Department of Land Affairs v
Goedgelegen Tropical Fruits (Pty) Ltd 2007 (6) SA 199 (CC) [56]–[63].
155
Tongoane ibid [28]–[29].
156
For detailed discussion of the land reform provisions of s 25 and the corresponding legislation, see
Budlender et al (note 114 above).
157
158
Ibid [61]. On the justiciability of the socio-economic rights in the 1996 Constitution, see Chapter 26 below.
In Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) [42] the Constitutional Court
held that the phrase ‘reasonable legislative and other measures’ entailed the following:
[t]he state is obliged to achieve the intended result, and the legislative measures will invariably have to be
supported by appropriate, well-directed policies and programmes implemented by the executive. These
policies and programmes must be reasonable both in their conception and their implementation. The
559
the extent provided by an Act of Parliament’, of property to persons and communities

dispossessed of property as a result of discriminatory legislation after 1913. The extent
of the right to restitution of land, or to redress in the form of alternative land or
compensation where restitution cannot be made, is set out in the Restitution of Land
Rights Act 22 of 1994. A notable difference between the restitution right in the 1996
Constitution and its equivalent in s 8(3)(b) of the interim Constitution is that restitution
is not confined to dispossessions of land, but encompasses ‘property’ in general.159
Nevertheless, the Restitution of Land Rights Act continues to restrict the restitution
entitlement to persons or communities dispossessed of ‘rights in land’.160 Two further
significant restrictions on the restitution entitlement provided for in the Restitution Act
should be noted. The first is that claims for restitution must have been lodged with the
Commission on Restitution of Land Rights by 31 December 1998. This means that once
all submitted claims have been finalised, the restitution entitlement will have come to an
end. The second is that, although s 25(7) is silent about this, the Act excludes claims for
restitution if just and equitable compensation ‘as contemplated in s 25(3) of the
Constitution’ was paid for the dispossession.
Section 25(6) read with s 25(9) imposes an obligation on the state to enact legislation
relating to land redistribution and reform. Restitution of property other than land is
provided for by other legislative provisions. The Mineral and Petroleum Resources
Development Act 28 of 2002 is an example of legislation enacted to give effect to these
transformational goals. Its provisions have a material impact on individual land
ownership, community ownership and the empowerment of the previously disadvan-
taged to gain access to mineral resources.161
In Concerned Land Claimants’ Organisation of Port Elizabeth162 the Constitutional
Court held that a claimant under the Restitution Act is not entitled to insist on restoration
of the land originally dispossessed as being the only remedy to be granted to him or her.
Since the time of dispossession, patterns of land ownership, use and development may
have changed so that what is appropriate restitution or equitable redress in response to
historical dispossession may vary according to the context.163
Section 25(6) provides for the securing of land tenure which has been made legally
insecure as a result of past racially discriminatory laws or practices. When Parliament
enacted the Communal Land Rights Act 11 of 2004 (‘CLARA’), it purported to act in
fulfilment of the constitutional obligation to bring about land reform. CLARA sought to
transform the communal land system applicable in all former homelands and
formulation of a programme is only the first stage in meeting the state’s obligations. The programme must also
be reasonably implemented. An otherwise reasonable programme that is not implemented reasonably will not
constitute compliance with the state’s obligations.
159
In Bengwenyama Minerals (Pty) Ltd v Genorah Resources (Pty) Ltd 2011 (4) SA 113 (CC) [3] the
Constitutional Court held that s 25, amongst other rights, ‘furnishes the foundation for measures to redress
inequalities in respect of access to the natural resources of the country’.
160
The Act was amended by the Land Restitution and Reform Laws Amendment Act 63 of 1997 to bring it
into line with the 1996 Constitution.
161
Bengwenyama (note 159 above) [3] and [28], Agri South Africa (note 5 above) [1]–[3], [61], [65] and [70].
162
Concerned Land Claimants’ Organisation of Port Elizabeth v Port Elizabeth Land and Community
Restoration Association 2007 (2) SA 531 (CC).
163
Ibid [26]. See too Mphela v Haakdoornbult Boerdery CC 2008 (4) SA 488 (CC) where the Constitutional
Court held that s 25(7) of the Constitution does not entitle a claimant to the restoration of the land actually lost.
The court retains a discretion to determine appropriate relief in each case.
560
Property 25.3
independent self-governing territories.164 CLARA sought to introduce a system of

community ownership in substitution for state ownership. Communities affected by this
legislation challenged its constitutionality in Tongoane.165 They contended that it
impermissibly undermined their security of tenure because of the powers which
CLARA conferred on traditional leaders to administer and allocate land.166 The
Constitutional Court did not decide the important question of security of tenure as the
state undertook to substantially revise CLARA. The Constitutional Court held that the
delays in the enactment of the legislation envisaged by s 25(6) were unfortunate.167
The Land Reform (Labour Tenants) Act 3 of 1996 is a further example of legislation
enacted to give effect to s 25(6).168 Despite the legal prohibition of African
landownership in the Transvaal and Free State Republics, by 1913 there were a
substantial number of African farmers on land designated for white occupation and
ownership. Prompted by an acute land hunger and prevented from acquiring ownership,
these farmers had to be content to occupy the land in terms of three types of precarious
legal arrangements. So-called cash tenants rented rural land in terms of contracts of
lease. Labour tenants exchanged their labour for the right to work a certain part of the
land for their own account. Share-croppers held the land in exchange for sharing half of
the profits of any crop with the owner. The 1913 Land Act consolidated and extended
nationally the territorial segregation practised in the Transvaal and Free State Republics,
confining African settlement to the reserves and ruling out any further acquisition of
land by Africans in white areas. Africans could no longer enter into leases, contracts of
sale or other contracts in respect of the acquisition of land outside the reserves. The
effect of this prohibition was to outlaw share-cropping arrangements and all other forms
of tenancy. It imposed absolute territorial limits outside of which Africans could not
farm. The only permissible contract in terms of which Africans could remain on white
land was labour service. The 1996 Act aims to provide security of tenure for labour
tenants, a class of persons who have been the victims of this long history of
discrimination. Rights of occupation and use of land subject to labour tenancy
arrangements are guaranteed by the Act. Labour tenants can only be evicted by order of
court, where it is just and equitable to do so and in accordance with the procedures laid
down in the Act.
According to s 25(8) the constitutional protection of property may not impede the
state’s ability to effect land and water law reform in order to achieve socio-economic
equity. This does not, however, mean that where land and water law reform entails the
expropriation of property the ordinary constitutional obligation to pay compensation for
such an expropriation does not apply. Section 25(8) contains the proviso that any
departure from s 25 must accord with the requirements of s 36(1), the limitations clause.
164
As set out above, these areas were reserved for the exclusive occupation of black persons by successive
legislative instruments.
165
Note 154 above.
166
Ibid [93].
167
Ibid [127].
168
Other important legislation is the Communal Property Associations Act 28 of 1996, the Interim Protection
of Informal Land Rights Act 31 of 1996, the Extension of Security of Tenure Act 62 of 1997 and the Prevention
of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998. The Communal Land Act 11 of 2004
provides a system for the conversion of customary-law and other forms of communal land tenure rights in rural
areas into registrable (and marketable) property rights.
561
A failure to compensate for an expropriation of property is a violation of s 25(2).

However, such a violation may be justifiable if, in terms of s 36(1), it is ‘reasonable and
justifiable in an open and democratic society based on human dignity, equality and
freedom’. Where property is expropriated for purposes of land or water reform,
compensation must be paid. Where compensation is not paid that failure must be
justified in terms of the limitations criteria set out in s 36(1). Subsection (8) therefore is
redundant, neither adding to nor subtracting from the substance of the property right. Its
inclusion seems to be an assurance that the power of the state to expropriate land and
water for purposes of redistribution is not removed by the property clause.169
169
According to Budlender (note 114 above) 1–72 to 1–73, s 25(8) was erroneously retained in the final draft
of the property clause after certain other provisions that had made its inclusion necessary had been deleted.
562
Chapter Twenty-six
Socio-Economic Rights*
26.1 The distinction between first- and second-generation rights . . . . . . . . . . 564
26.2 The socio-economic rights in the Bill of Rights . . . . . . . . . . . . . . . . . . . . . . 565
26.3 Justiciability of socio-economic rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 565
(a) The challlenge of adjudicating socio-economic rights claims. . . . 565
(b) Negative obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 568
(c) Positive obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 570
(i) Applicable international law: the ICESCR. . . . . . . . . . . . . . . . . . 570
(ii) Applicable international law: the African Charter . . . . . . . . . . 573
(iii) Positive obligations in the 1996 Constitution . . . . . . . . . . . . . . . 573
(aa) ‘Reasonable legislative and other measures’. . . . . . . . . . . 574
(bb) ‘Progressive realisation’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 580
(cc) ‘Within its available resources’ . . . . . . . . . . . . . . . . . . . . . . . . 581
(dd) Positive obligations grant authority for state conduct. . 584
26.4 Specific rights: Housing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 584
(a) Access to adequate housing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 584
(b) Reasonable measures to achieve the progressive realisation of the
right to housing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 585
(c) Protection against unlawful and arbitrary eviction or demolition
of a home: s 26(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 586
(i) Application of s 26(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 586
(ii) Content of the s 26(3) right . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 589
26.5 Specific rights: health care, food, water and social security . . . . . . . . . . 591
(a) Content of the right . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 591
(b) Emergency medical treatment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 592
26.6 Remedies for the infringement of socio-economic rights . . . . . . . . . . . . . 594
Housing
26.(1) Everyone has the right to have access to adequate housing.
(2) The state must take reasonable legislative and other measures
within its available resources, to achieve the progressive realisation of
this right.
(3) No one may be evicted from their home, or have their home
demolished, without an order of court made after considering all the
relevant circumstances. No legislation may permit arbitrary evictions.
* This chapter was revised for the sixth edition by Jason Brickhill and Nick Ferreira, Advocates, Members of
the Johannesburg Bar.
563
Health care, food, water and social security

27.(1) Everyone has the right to have access to—
(a) health care services, including reproductive health care;
(b) sufficient food and water; and
(c) social security, including, if they are unable to support themselves
and their dependants, appropriate social assistance.
(2) The state must take reasonable legislative and other measures,
within its available resources, to achieve the progressive realisation of
each of these rights.
(3) No one may be refused emergency medical treatment.
26.1 THE DISTINCTION BETWEEN FIRST- AND SECOND-GENERATION RIGHTS

At its most narrow and conventional, a Bill of Rights protects the ‘traditional’ liberal
rights to equality, personal liberty, property, free speech, assembly and association—the
so-called civil and political or ‘first-generation’ rights.1 These are often thought of as
‘negative’ rights that take power away from the government by imposing a duty not to
act in certain ways (for example, the duty not to torture or the duty not to discriminate).2
The recognition that human rights and the basic social conditions in which people live
are fundamentally interconnected have encouraged the inclusion in modern constitu-
tions of socio-economic or ‘second-generation’ rights. These are often thought of as
‘positive’ rights that impose obligations on government. However, the distinction
between ‘positive’ and ‘negative’ rights can be misleading. Human rights of all kinds
give rise to both positive and negative duties.3
The inclusion of socio-economic rights as fully justiciable rights is an important
component of the Constitution’s transformative vision. One of the most important
purposes of the transformation envisioned by the Constitution is to ensure that the
realisation of the fundamental socio-economic rights allows people disadvantaged by
their social and economic circumstances to ‘become more capable of enjoying a life of
dignity, freedom and equality.’4 The socio-economic rights evince ‘a deep concern for
the material inequality closely associated with past exclusion and poverty’.5
The socio-economic rights accordingly oblige the state to do as much as it can to
secure for all members of society a basic set of social goods—education, health care,
food, water, shelter, access to land and housing. In so doing, the Bill of Rights attempts
1
First-generation rights (so called because, historically, they were the first rights to achieve legal recognition
and protection) are based on the idea that individuals should be free of government interference when it comes to
what they do in their private lives and in their personal and political associations with others.
2
The dominant conception of the United States Constitution is that it is ‘a charter of negative rather than
positive liberties. . . . The men who wrote the Bill of Rights were not concerned that Government might do too
little for the people but that it might do too much to them. The Fourteenth Amendment, adopted in 1868 at the
height of laissez-faire thinking, sought to protect Americans from oppression by state government, not to secure
them basic governmental services’: Jackson v City of Joliet 715 F 2d 1200, 1203 (7th Cir) (1983) 1206 (no duty
on police to rescue accident victims from burning car).
3
See H Shue Basic Rights: Subsistence, Affluence, and US Foreign Policy (2 ed) (1996); S Fredman Human
Rights Transformed: Positive Rights and Positive Duties (2008).
4
Road Accident Fund v Mdeyide 2011 (2) SA 26 (CC) [125] (dissenting judgment of Froneman J).
5
Residents of Joe Slovo Community, Western Cape v Thubelisha Homes 2010 (3) SA 454 (CC) [142]
(Moseneke DCJ).
564
Socio-Economic Rights 26.1–26.3
to ensure that all members of society have the capacity to enjoy and participate in the
rights of association, equality, political participation and expression that are traditionally
protected in liberal constitutions.6
26.2 THE SOCIO-ECONOMIC RIGHTS IN THE BILL OF RIGHTS

There are a number of socio-economic rights in the 1996 Bill of Rights.7
Sections 26 and 27 are the most visible of these. They entrench the right of
‘everyone’8 to ‘have access to’ adequate housing, health care services, sufficient food
and water, and social security. They require the state to ‘take reasonable legislative and
other measures, within its available resources, to achieve the progressive realisation of
each of these rights’. A second category of provisions entrenches a set of ‘basic’ rights
consisting of children’s socio-economic rights (s 28(1)(c)), the right of everyone to
basic education (s 29(1)(a), in addition to s 35(2)(c) (the right to a legal practitioner) and
s 35(2)(e) (detainees’ rights to adequate accommodation, nutrition, reading material and
medical treatment). These rights are not qualified by reference to reasonable measures,
progressive realisation or resource constraints.9 This chapter deals with the first category
of rights—the qualified rights to housing, health care, food, water and social security in
ss 26 and 27.
26.3 JUSTICIABILITY OF SOCIO-ECONOMIC RIGHTS
(a) The challenge of adjudicating socio-economic rights claims

The principal difficulty with socio-economic rights lies in their justiciability—the extent
to which they can and should be enforced by a court. The essence of a justiciable Bill of
Rights is that decisions affecting basic rights and liberties should be reviewed by an
institution standing outside the political sphere, namely the judiciary. Attempts to make
social, economic and cultural rights part of a Bill of Rights are usually met by the
objection that these particular rights are not suited to judicial enforcement.10 There are
two strains to the argument against judicial enforcement of socio-economic rights.
These can be described as the separation of powers problem and the problem of
polycentricity.
6
Though technically distinguishable, the Constitutional Court has recognised the interconnectedness of the
two types of right and their dependence on each other. See Government of the Republic of South Africa v
Grootboom 2001 (1) SA 46 (CC) [23]: ‘[The 1996] Constitution entrenches both civil and political rights and
social and economic rights. All the rights in our Bill of Rights are inter-related and mutually supporting. There
can be no doubt that human dignity, freedom and equality, the foundational values of our society, are denied those
who have no food, clothing or shelter. Affording socio-economic rights to all people therefore enables them to
enjoy the other rights enshrined in Chapter 2. The realisation of these rights is also key to the advancement of
race and gender equality and the evolution of a society in which men and women are equally able to achieve their
full potential.’
7
On the drafting history of the socio-economic rights, see Liebenberg Socio-Economic Rights Chapter 1.
8
See Khosa v Minister of Social Development 2004 (6) SA 505 (CC) [46]–[47] (‘everyone’ in ss 26 and 27
means ‘everyone’ and not just citizens).
9
The Bill of Rights also contains provisions protecting so-called ‘third-generation’ rights. These are the
collective rights to environmental protection ‘for the benefit of present and future generations’ (s 24(b)) and a
number of rights protecting aspects of the right to self-determination and protection of minorities (ss 30 and 31).
10
See, for a summary account of objections to the constitutionalisation of socio-economic rights, E Mureinik
‘Beyond a Charter of Luxuries: Economic Rights in the Constitution’ (1992) 8 SAJHR 464. A more detailed
survey is provided by C Scott & P Macklem ‘Constitutional Ropes of Sand or Justiciable Guarantees? Social
Rights in a New South African Constitution’ (1992) 141 Univ of Pennsylvania LR 1.
565
As to the separation of powers, it has been argued that because they are claims by
individuals and groups to the delivery of goods by government, justiciable
socio-economic rights require the courts to direct the way in which the government
distributes the state’s resources. For this reason, they are beyond the proper scope of the
judicial function. The judiciary is an elite and undemocratically appointed branch of the
state. Therefore, so the argument goes, it lacks the democratic legitimacy necessary to
decide the essentially political question of how to apportion public resources among
competing claims and between individuals, groups, and communities in society. It is
usually thought legitimate for the judiciary to prevent the government and even the
democratically elected, representative branches of the state such as Parliament from
engaging in particular practices or imposing particular duties or conditions on groups
and individuals. But this is thought quite distinct from a situation in which the judiciary
has the power to order these branches of state to distribute or spend public resources in
a particular manner.11
Like the problem of the separation of powers, the problem of polycentricity is a
recognition of the limits of adjudication. This time, however, the limits are not a matter
of constitutional politics but of judicial capacity. Courts typically resolve disputes
between two parties, each of whom can represent its interests before the court. The task
of the court is to weigh up the arguments it has heard and to find in favour of one party
and against the other by application of general principles or rules. This type of
winner-takes-all resolution of a dispute is not suited to the resolution of what have been
called ‘polycentric’ issues.12 Polycentric tasks entail the co-ordination of mutually
interacting variables: a change in one variable will produce changes in all of the others.
The paradigm example of a polycentric task is the assignment of the players in a football
team to their positions: each shift of position of one of the players might have a different
set of repercussions on the remaining players.13 Such a task is not particularly amenable
to being performed by adjudication.14 The executive and legislature, who have access to
empirical evidence and are sensitive to numerous competing demands, are said to be
better suited to making such decisions.
Though there are polycentric elements in almost all problems submitted to
adjudication,15 the degree of polycentricity in socio-economic rights litigation is often
high. Take, for example, the issue confronted in Soobramoney.16 Faced with
considerable budgetary, personnel and infrastructure constraints, the KwaZulu-Natal
11
Minister of Health v Treatment Action Campaign (2) 2002 (5) SA 721 (CC) [38]: while the orders that result
from its adjudication of socio-economic rights claims may permissibly have ‘budgetary implications’, they are
not ‘in themselves directed at rearranging budgets’. The distinction appears to be between leaving it to the other
branches of the state to decide on the fiscal and budgetary measures necessary to comply with the court’s orders
on the one hand and, on the other hand, the court making those decisions itself.
12
L Fuller ‘The Forms and Limits of Adjudication’ (1978) 92 Harvard LR 353, 394ff.
13
Ibid 395: ‘putting Jones in as quarterback would have one set of carryover effects, putting him in as left end,
another’.
14
Polycentric problems are instead better resolved either by managerial direction (the coach of the football
team arriving at the optimal allocation of the positions of the players by trial and error) or by contract (allowing
the players to agree their positions among themselves). Ibid 398.
15
Ibid 397. It is therefore only those problems in which the degree of polycentricity is particularly high that
should be off limits to adjudication. See also Bel Porto School Governing Body v Premier of the Western Cape
Province 2002 (3) SA 265 (CC) [175] (quoting Fuller (ibid) 398): ‘It is a question of knowing when the
polycentric elements have become so significant and predominant that the proper limits of adjudication had been
reached’.
16
Soobramoney v Minister of Health (KwaZulu-Natal) 1998 (1) SA 765 (CC).
566
Socio-Economic Rights 26.3
health department decided to make dialysis treatment available only to those patients
who were candidates for a kidney transplant. The money and personnel resources saved
as a result of this decision were deployed elsewhere to fulfil other pressing needs. By
challenging the decision to deny him access to treatment, the applicant was challenging
the failure to allocate resources to him. If the Constitutional Court had decided that Mr
Soobramoney (and others in his position) was entitled to dialysis treatment, the decision
would affect not only the individual but also the complex web of mutually interacting
resource allocations.17 The Constitutional Court has held that decisions affecting the
collecting and ordering of public resources ‘inevitably call[s] for policy-laden and
polycentric decision-making. Courts are not always well suited to make decisions of that
order.’18
The Constitutional Court discussed the nature of socio-economic rights and the
problems associated with judicial enforcement of them in the First Certification
judgment and responded to some of these arguments. The court stated:
It is true that the inclusion of socio-economic rights may result in courts making orders
which have direct implications for budgetary matters. However, even when a court enforces
civil and political rights such as equality, freedom of speech and the right to a fair trial, the
order it makes will often have such implications. A court may require the provision of legal
aid, or the extension of state benefits to a class of people who formerly were not
beneficiaries of such benefits. In our view it cannot be said that by including socio-economic
rights within a bill of rights, a task is conferred upon the courts so different from that
ordinarily conferred upon them by a bill of rights that it results in a breach of separation of
powers.
Nevertheless, we are of the view that these rights are, at least to some extent, justiciable.
As we have stated in the previous paragraph, many of the civil and political rights
entrenched in the New Constitution will give rise to similar budgetary implications without
compromising their justiciability. The fact that socio-economic rights will almost inevitably
give rise to such implications does not seem to us to be a bar to their justiciability. At the
very minimum, socio-economic rights can be negatively protected from improper invasion.
In the light of these considerations, it is our view that the inclusion of socio-economic rights
in the New Constitution does not result in a breach of the . . . [Constitutional Principles].19
The court makes two points. First, it questions the rigidity of the distinction that is often
drawn between socio-economic rights and civil and political rights on the basis that the
17
See, for example, Soobramoney (ibid) [28]: ‘The appellant’s case must be seen in the context of the needs
which the health services have to meet, for if treatment has to be provided to the appellant it would also have to
be provided to all other persons similarly placed. Although the renal clinic could be kept open for longer hours, it
would involve additional expense in having to pay the clinic personnel at overtime rates, or in having to employ
additional personnel working on a shift basis. It would also put a great strain on the existing dialysis machines
which are already showing signs of wear. It is estimated that the cost to the state of treating one chronically ill
patient by means of renal dialysis provided twice a week at a state hospital is approximately R60 000 per annum.
If all the persons in South Africa who suffer from chronic renal failure were to be provided with dialysis
treatment—and many of them, as the appellant does, would require treatment three times a week—the cost of
doing so would make substantial inroads into the health budget. And if this principle were to be applied to all
patients claiming access to expensive medical treatment or expensive drugs, the health budget would have to be
dramatically increased to the prejudice of other needs which the state has to meet.’
18
National Treasury v Opposition to Urban Tolling Alliance 2012 (6) SA 223 (CC) [68].
19
of South Africa 1996 (First Certification judgment) 1996 (4) SA 744 (CC) [77]–[78]. The inclusion of
socio-economic rights in the Bill of Rights was objected to on the basis that the rights conflicted with
Constitutional Principle VI requiring a separation of powers between the legislature, executive and judicial
branches of government. On the nature of the Constitutional Principles and the Constitutional Court’s
certification function, see para 1.2(c) in Chapter 1 above.
567
former entail judicial imposition of positive duties on the state while the latter do not.
Courts enforcing civil and political rights may on occasion impose positive duties on the
state.20 These duties may have considerable repercussions on the division of public
resources. Secondly, the court confirms that the socio-economic rights in the 1996
Constitution are justiciable.
Given that there is no doubt that the socio-economic rights are justiciable, the
problems of separation of powers and polycentricity have considerable bearing on
the standard of justiciability (essentially, the standard of review and the deference
that the courts show to executive and legislative decisions) and on the remedies that
are awarded in socio-economic rights cases. They explain much about the
Constitutional Court’s cautious approach to reviewing government compliance with
the socio-economic rights.21
(b) Negative obligations

In the First Certification decision the Constitutional Court made the point that the
socio-economic rights could at the least be negatively protected. Negative protection is
the form of judicial protection conventionally given to civil and political rights. There is
a negative obligation not to interfere with someone who is doing something that they
have a constitutional right to do. The right to assemble, for example, would be infringed
by a law that prohibited all political gatherings. Applied to socio-economic rights,
negative protection means that a court can prevent the state from acting in ways that
infringe the socio-economic rights directly. The rights to housing, health care, sufficient
food and water, social security and to basic education may therefore not be subjected to
what have been termed ‘deliberately retrogressive measures’.22 A deliberately
retrogressive measure is one that has the effect of denying individuals their existing
access to water, food or housing, or preventing them from using whatever resources they
have at their disposal to satisfy their water, food and housing needs. This would include,
for example, evictions and disconnections of water supply. A law prohibiting the
purchase or use of anti-retroviral drugs by HIV-positive people would entail a direct
negative infringement of the right to health care, for example, and could be remedied
relatively simply by an order declaring the law invalid. More abstractly, law or conduct
leading to a decline rather than progressive improvement in living and housing
conditions could be a violation of this negative aspect of the socio-economic rights and
could be declared invalid for this reason.23 While the positive obligations imposed by
20
It has been argued that an element of all rights is an entitlement to government action and that therefore the
distinction between negative and positive rights is illusory. For example, the Constitutional Court has pointed out
that the right to a fair trial requires the state to take positive measures to construct an elaborate system of justice
at great expense: ‘The right to a fair trial requires considerable resources in order to provide for buildings with
court rooms, offices and libraries, recording facilities and security measures and for adequately trained and
salaried judicial officers, prosecutors, interpreters and administrative staff.’ S v Jaipal 2005 (4) SA 581 (CC) [55].
See also August v Electoral Commission 1999 (3) SA 1 (CC) which illustrates the extensive positive dimensions
of the right to vote and Mohamed v President of the Republic of South Africa 2001 (3) SA 893 (CC) on the
positive dimensions of the right to life. See S Holmes & C R Sunstein The Cost of Rights: Why Liberty Depends
on Taxes (1998).
21
See Liebenberg Socio-Economic Rights 34ff.
22
UN Committee on Economic, Social and Cultural Rights, General Comment 3 (1990) ‘The Nature of States
Parties Obligations’ (1994) para 9.
23
Committee on Economic, Social and Cultural Rights, General Comment 4 ‘The Right to Adequate Housing
(Art 11 (1) of the Covenant)’ (1994) para 11: ‘It would thus appear to the Committee that a general decline in
568
the socio-economic rights are subject to progressive realisation, this is not so for the
negative obligations. The availability of state resources is also not an issue.24
Paradoxical as it sounds, there is also a positive aspect to negative enforcement: not only
is the state prohibited from interfering in people’s attempts to exercise their
socio-economic rights, but it also has a duty to take steps to protect against interference
by private individuals.25
Any measure that deprives a person of existing access to a socio-economic right is a
limitation that must be justified under s 36 of the Constitution.26 This entails a two-stage
approach. First the scope of the right is analysed to determine whether the challenged
law, conduct or omission amounts to a breach of the right. Secondly, if a breach has
been established at the first stage, the court assesses whether it is a reasonable and
justifiable limitation in terms of s 36. At the first stage, the burden falls on the applicant
to persuade the court that a breach has occurred; at the second, the state bears an ‘onus
of a special type’. Although not a conventional onus of proof as understood in civil and
criminal trials, the state bears the burden to justify the limitation.27
In Grootboom the Constitutional Court considered the legality of the conduct of a
local authority which evicted a group of squatters who had moved onto private land that
had been earmarked for low-cost housing. A magistrate’s court had ordered the squatters
to vacate the land by a particular date or face eviction. However, the eviction, under the
control of the municipality, took place a day early and in circumstances which saw the
squatters’ homes bulldozed, their building materials and many of their possessions
deliberately destroyed. This was, according to the court, a violation of the negative
obligation in s 26(1).28
living and housing conditions, directly attributable to policy and legislative decisions by States parties, and in the
absence of accompanying compensatory measures, would be inconsistent with the obligations under the
Covenant [on Social, Economic and Cultural Rights (1966)]’.
The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights (1997), a set of expert
guidelines on socio-economic rights in international law, list (at para 14) a number of acts of commission by
states that arguably violate the rights in the Covenant and that could be protected by negative enforcement:
(a) The formal removal or suspension of legislation necessary for the continued enjoyment of an economic,
social and cultural right that is currently enjoyed;
(b) The active denial of such rights to particular individuals or groups, whether through legislated or enforced
discrimination;
(c) The active support for measures adopted by third parties which are inconsistent with economic, social and
cultural rights;
(d) The adoption of legislation or policies which are manifestly incompatible with pre-existing legal obligations
relating to these rights, unless it is done with the purpose and effect of increasing equality and improving the
realization of economic, social and cultural rights for the most vulnerable groups;
(e) The adoption of any deliberately retrogressive measure that reduces the extent to which any such right is
guaranteed;
(f) The calculated obstruction of, or halt to, the progressive realization of a right protected by the Covenant,
unless the State is acting within a limitation permitted by the Covenant or it does so due to a lack of
available resources or force majeure;
(g) The reduction or diversion of specific public expenditure, when such reduction or diversion results in the
non-enjoyment of such rights and is not accompanied by adequate measures to ensure minimum subsistence
rights for everyone.
24
Jaftha v Schoeman 2005 (2) SA 140 (CC) [31], [33].
25
For example, by enacting legislation prohibiting arbitrary evictions by private individuals or protecting
security of tenure in the private housing market. See the discussion of the PIE Act below.
26
Jaftha (note 24 above) [34].
27
Minister of Home Affairs v National Institute for Crime Prevention and the Re-Integration of Offenders
(NICRO) 2005 (3) SA 280 (CC) [34]–[36]. See, further, Chapter 7 above.
28
Grootboom (note 6 above) [88].
569
In Juma Musjid, the Constitutional Court considered an application to evict a public

school operating on private property. The owner of the property sought to evict the
school after the MEC for Education failed to conclude a statutorily required agreement
setting out the tenancy terms and conditions. The Constitutional Court found that the
MEC had failed to fulfil her constitutional mandate to respect, protect, promote and
fulfil the right to basic education.29 Significantly, it also found that while the property
owner did not bear a primary positive obligation to provide basic education, s 8(2) of the
Constitution requires private parties not to interfere with or diminish enjoyment of a
right. At least to that extent, the right to a basic education applies horizontally. The
property owner was accordingly subject to a negative duty not to interfere with or
diminish the enjoyment of the learners’ right to a basic education.30
As the Constitutional Court made clear in the First Certification decision, negative
enforcement is the minimum level of justiciability and is certainly not the only way in
which the socio-economic rights are justiciable. The positive elements of the right are
also enforceable. In what follows, the treatment of the positive obligations of
socio-economic rights in international law will be considered in addition to an analysis
of the current state of the South African jurisprudence on the subject.
(c) Positive obligations

(i) Applicable international law: the ICESCR
The most important international instrument relating to socio-economic rights is the
International Covenant on Economic, Social and Cultural Rights of 1966 (ICESCR).
The Covenant has been ratified by approximately 130 states.31 South Africa signed the
Covenant in 1994 but has not yet ratified it. Once ratified, the Covenant will be binding
on South Africa under international law and it is likely to have an increasingly
significant impact on the development of South Africa’s socio-economic rights
jurisprudence.
In terms of s 39(1)(b), courts must consider international law when interpreting the
Bill of Rights. International law should accordingly have a marked effect on the courts’
interpretation of Governing Body of the Juma Musjid Primary School v Essay NO 2011
(8) BCLR 761 (CC) [45] the socio-economic rights provisions of the Bill of Rights.32
29
Governing Body of the Juma Masjid Primary School v Essay NO 2011 (8) BCLR 761 (CC) [45]
30
Ibid [57]–[60].
31
Other conventions protecting socio-economic rights that have been ratified by South Africa are the
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) (1979), the
Convention on the Rights of the Child (1995) and the African Charter on Human and People’s Rights (1981). The
influence of the ICESCR on the drafters of the 1996 Constitution is evident in the use in the latter of concepts
such as ‘progressive realisation’ and the state’s duty to take ‘reasonable legislative and other measures within its
available resources’, drawn from art 2 of the Covenant. The correspondence (and certain important differences)
between the Covenant and s 26 and s 27 of the 1996 Constitution was recognised by the Constitutional Court in
Grootboom (note 6 above) [27], [28], [45].
32
See Glenister v President of the Republic of South Africa 2011 (3) SA 347 (CC) [201] where Moseneke DCJ
and Cameron J outlined for the majority of the court the role of international law under s 39(2) in interpreting a
provision of the Bill of Rights, having regard also to s 7(2) of the Constitution. They held: ‘It is possible to
determine the content of the obligation s 7(2) imposes on the State without taking international law into account.
But s 39(1)(b) makes it constitutionally obligatory that we should. This is not to use the interpretive injunction of
that provision . . . to manufacture or create constitutional obligations. It is to respect the careful way in which the
Constitution itself creates concordance and unity between the Republic’s external obligations under international
law, and their domestic legal impact’.
570
The substantive rights that are recognised by the Covenant are: to work and to just
and favourable conditions of work; rest and leisure; to form and join trade unions and to
strike; social security; special protection for the family, mothers and children; an
adequate standard of living, including food, clothing and housing; physical and mental
health; education; scientific and cultural life. The basic obligation imposed by the
Covenant on a member state is ‘to take steps . . . to the maximum of its available
resources, with a view to achieving progressively the full realization of the right by all
appropriate means, including particularly the adoption of legislative measures’.33 This
provision has been described as imposing an obligation ‘to move as expeditiously and
effectively as possible’ towards realising the listed objectives. Moreover, along the lines
of what the Constitutional Court termed ‘negative protection against improper invasion’,
it has been established that any ‘deliberate retrogressive measures . . . would require the
most careful consideration and would need to be fully justified’.34
The primary responsibility for the enforcement of the Covenant lies with the UN
Committee on Economic, Social and Cultural Rights. The Committee was established in
1987 to monitor the compliance of state parties with their obligations under the
Covenant.35 Member states have to submit periodic reports to the Committee on the
measures taken and progress made with respect to their obligations.36 Given that the
socio-economic rights in the South African Constitution were modelled on those in the
Covenant, the Committee’s interpretations of the Covenant (contained in a series of
‘General Comments’) and its comments on state reports are a valuable source of
guidance for South African courts.37 Although the General Comments do not bind South
Africa, they are generally regarded as a primary source for determining the content of
international socio-economic rights and have regularly been referred to by the
33
Article 2(1). Compare this formulation with the immediate obligation imposed by art 2(1) of the
International Covenant on Civil and Political Rights: ‘Each State Party to the present Covenant undertakes to
respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in
the present Covenant’.
34
M Scheinen ‘Economic and Social Rights as Legal Rights’ in A Eide et al (eds) Economic, Social and
Cultural Rights (1995).
35
The Committee consists of eighteen independent experts, elected by the Economic and Social Council of the
UN for four-year terms. The Committee does not have adjudicative functions. Its principal activities are the
adoption of ‘General Comments’ on the content of the ICESCR and the examination of reports submitted by
states parties. Since 1991, the Committee has been drafting a draft optional protocol to the ICESCR intended to
permit communications (complaints) by individuals or groups alleging violations of their economic, social and
cultural rights.
36
A first report is due within two years of ratification of the Covenant and subsequent reports are required at
five-year intervals.
37
It is somewhat more difficult to find comparable foreign case law that can assist in the interpretation of the
socio-economic rights. This is because South Africa is one of only a few jurisdictions to incorporate an extensive
list of directly enforceable socio-economic rights into its Constitution. (The others are Sri Lanka, Hungary,
Lithuania and Portugal.) Most jurisdictions that recognise such rights in their constitutions (for example,
Namibia, Brazil, India, Portugal and Ireland) do so in the form of ‘directive principles of state policy’. These
principles are not directly justiciable but may affect the interpretation of other rights by being ‘read into’ those
rights or may be relevant in the interpretation of legislation. For example, according to art 37 of the Indian
Constitution, the list of Directive Principles ‘shall not be enforceable by any court, but the principles therein laid
down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply
these principles in making laws’.
38
See, for example, Treatment Action Campaign (note 11 above) fn 11; Grootboom (note 6 above) [29]; and
Mazibuko v City of Johannesburg 2010 (4) SA 1 (CC) [52].
571
According to the Committee, a state’s obligations under the Covenant do not end with
the duty to refrain from interference with the enjoyment of the socio-economic rights.
The rights have an additional positive dimension in that they can be adequately realised
only by taking positive steps directed towards fulfilling the rights. It is generally
recognised that the positive component of socio-economic rights requires two forms of
action from the state. The first, following art 2(1) of the Covenant, is that the state must
‘adopt . . . legislative measures’. This means creating a legal framework that grants
individuals the legal status, rights and privileges that will enable them to pursue their
rights. The second requires the state to implement other measures and programmes
designed to assist individuals in realising their rights.39
The positive dimension of the international socio-economic rights is qualified by the
use of the phrase employed in art 2(1) obliging a state to take steps ‘to the maximum of
its available resources, with a view to achieving progressively the full realisation of the
right’. The terms ‘progressive realisation’ and the ‘available resources’ qualification are
understood to grant the state a margin of discretion in selecting the means for achieving
socio-economic rights. However, it is clear that the qualification does not mean that the
state is simply left to its own devices in choosing whether and how to implement the
rights. The following principles have emerged from international practice:
1. The fact that the full realisation of socio-economic rights can only be achieved
progressively does not alter the obligation on the state to take those steps that are
within its power immediately and other steps as soon as possible. The burden is on
the state to show that it is making progress toward the full realisation of the
rights.40
2. While the requirement that a state take ‘appropriate’ steps towards the
realisation of the rights confers a considerable margin of discretion on states,
there is nevertheless an obligation to justify the appropriateness of the measures
adopted. The determination whether a state has taken all appropriate measures
remains one for the Committee to make.41
3. Resource scarcity does not relieve states of what the Committee on Economic,
Social and Cultural Rights terms ‘core minimum obligations’.42 Violations of
socio-economic rights will occur when the state fails to satisfy obligations to
ensure the satisfaction of minimum essential levels of each of the rights, or fails
to prioritise its use of its resources so as to meet its core minimum obligations.
These core minimum obligations apply unless the state can show that its
resources are ‘demonstrably inadequate’ to allow it to fulfil its duties. However,
even when resources are scarce the obligation remains on the state to ‘strive to
ensure the widest possible enjoyment of the relevant rights under the prevailing
circumstances’.43
4. It is important to distinguish the inability from the unwillingness of a state to
comply with its obligations. The fact that obligations are to be realised
39
General Comment 3 (note 22 above) para 4.
40
Maastricht Guidelines (note 23 above) para 8. This accords with the approach of the Constitutional Court in
Soobramoney (note 16 above). While the state has a margin of discretion in determining which measures it will
implement and how it will utilise its resources, it must show that it is exercising its discretion rationally and in
good faith.
41
42
Ibid para 10.
43
Ibid para 11. Maastricht Guidelines (note 23 above) para 9.
572
progressively does not mean that the state may postpone its obligations to some
distant or unspecified time in the future. A state claiming that it is unable to
carry out its obligations because of resource scarcity is under a burden of
proving that this is the case.44
(ii) Applicable international law: the African Charter

South Africa has ratified the African Charter on Human and Peoples’ Rights. The
African Commission on Human and Peoples’ Rights is the body enjoined to interpret the
African Charter and ensure that states parties comply with their obligations.45 The
Commission is required to ‘formulate and lay down, principles and rules aimed at
solving legal problems relating to human and peoples’ rights and fundamental freedoms
upon which African Governments may base their legislations.’46 It is also empowered to
‘interpret all the provisions of the . . . Charter’.47
The African Charter entrenches some socio-economic rights, including rights to
health and education.48 Although the Charter does not include an explicit right to
housing, the Commission recognised that it does confer a right to housing in the
landmark decision in SERAC v Nigeria.49 The Commission held that the right to housing
in the Charter ‘encompasses the right to protection against forced evictions.’50 The
Commission has recently provided clear content for the socio-economic rights contained
in the Charter. In November 2010 it promulgated its Principles and Guidelines on the
Implementation of Economic, Social and Cultural Rights in the African Charter on
Human and Peoples’ Rights. The Principles and Guidelines are a ‘soft law’ instrument
similar to the general comments produced by UN treaty bodies, and they provide the
African Commission’s interpretation of state parties’ obligations under the socio-
economic provisions of the African Charter.
(iii) Positive obligations in the 1996 Constitution

The Constitutional Court’s approach to positive duties arising from the socio-economic
rights is different from its approach to negative duties.51 Because of the internal
qualifications that apply to positive duties under ss 26(2) and 27(2), the court has
effectively collapsed the usual two-stage procedure for the assessment of justifiability52
when assessing the justification of alleged breaches of the positive obligations arising
from these sections. For these duties ‘the entire justification argument will occur in the
context of the internal reasonableness test’.53
The test for compliance with these positive duties is whether the state’s efforts to
realise the right are reasonable in the light of the internal qualifiers. This requires (a)
reasonable legislative and other measures; (b) to achieve the progressive realisation of
44
Maastricht Guidelines (note 23 above) para 13.
45
Article 45 of the African Charter.
46
Article 45(1)(b).
47
Article 45(3).
48
Articles 16 and 17.
49
Social and Economic Rights Action Centre & the Centre for Economic and Social Rights v Nigeria
Communication No. 155/96 [60].
50
Ibid [63].
51
See Treatment Action Campaign No 2 (note 11 above) [23]–[39].
52
See, further, para 7.1(b) in Chapter 7 above.
53
573
the right; (c) within available resources. Review for reasonableness, as applied to the
positive duties arising from ss 26 and 27, thus ‘offers no clear distinction between
determining the scope of the right, whether it has been breached, and justifications for
possible infringements.’54 Such limitations are not required to be in terms of law of
general application, as is required by s 36.
In Grootboom, the Constitutional Court’s ground-breaking decision on the
socio-economic rights in the 1996 Constitution, the court considered the extent of the
positive duties placed on the state by s 26(2). The subsection (using a formulation also
employed in s 27(2) and s 25(5)) significantly qualifies the ‘right to have access to
adequate housing’ by requiring the state to ‘take reasonable legislative and other
measures, within its available resources, to achieve the progressive realisation’ of the
right. The right of ‘access’ to the particular socio-economic goods listed in s 26(1) and
s 27(1) is not a self-standing positive entitlement beyond granting a right of access to
whatever services are provided by the state in fulfilment of its obligations in s 26(2) and
s 27(2).55 According to the court the formulation of the socio-economic rights delimits
the state’s positive obligations, qualifying them in three ways: ‘(a) the obligation to
“take reasonable legislative and other measures”; (b) “to achieve the progressive
realisation” of the right; and (c) “within available resources.”’ Each of these
qualifications will be considered in turn, but it should be emphasised that it is the first
qualification that is the most significant from the point of view of judicial enforcement
of the rights.
(aa) ‘Reasonable legislative and other measures’

According to the Constitutional Court, the key to the justiciability of the socio-economic
rights in the 1996 Constitution is the standard of reasonableness. Though a considerable
margin of discretion must be given to the state in deciding how it is to go about fulfilling
the socio-economic rights, the reasonableness of the measures that it adopts can be
evaluated by a court:
The precise contours and content of the measures to be adopted are primarily a matter for the
legislature and the executive. They must, however, ensure that the measures they adopt are
reasonable. In any challenge based on section 26 in which it is argued that the state has
failed to meet the positive obligations imposed upon it by section 26(2), the question will be
whether the legislative and other measures taken by the state are reasonable. A court
considering reasonableness will not enquire whether other more desirable or favourable
measures could have been adopted, or whether public money could have been better spent.
The question would be whether the measures that have been adopted are reasonable. It is
necessary to recognise that a wide range of possible measures could be adopted by the state
to meet its obligations. Many of these would meet the requirement of reasonableness. Once
it is shown that the measures do so, this requirement is met.56
54
55
Grootboom (note 6 above) [38]. In the Treatment Action Campaign case (note 11 above) the court confirmed
that this analysis applied also to s 27: the right of access to health care in s 27(1) was qualified by the obligation
to take only reasonable measures within available resources to achieve progressive realisation of the right.
Section 27(1) did not ‘give rise to a self-standing and independent positive right enforceable irrespective of the
considerations mentioned in section 27(2). Sections 27(1) and 27(2) must be read together as defining the scope
of the positive rights that everyone has and the corresponding obligations on the state to ‘‘respect, protect,
promote and fulfil’’ such rights. The rights conferred by sections 26(1) and 27(1) are to have ‘‘access’’ to the
services that the state is obliged to provide in terms of sections 26(2) and 27(2)’ [39].
56
574
Moreover, given that both legislative and other measures must be taken, reasonableness
can be evaluated both at the level of a legislative programme and its implementation:
Legislative measures by themselves are not likely to constitute constitutional compliance.
Mere legislation is not enough. The state is obliged to act to achieve the intended result, and
the legislative measures will invariably have to be supported by appropriate, well-directed
policies and programmes implemented by the executive. These policies and programmes
must be reasonable both in their conception and their implementation. The formulation of a
programme is only the first stage in meeting the state’s obligations. The programme must
also be reasonably implemented. An otherwise reasonable programme that is not
implemented reasonably will not constitute compliance with the state’s obligations.57
The significance of this holding cannot be over-emphasised. It means, first, that courts
can require an explanation from the state of the measures chosen to fulfil the
socio-economic rights. They can also require the state to give an account of its progress
in implementing those measures. The socio-economic rights are a constitutional
agreement that the state must strive to achieve certain developmental goals. While there
can be considerable disagreement about the best way to achieve those goals, the state
has an obligation to justify its choice of means to the public. Put another way, the
standard of reasonableness requires, in the first place, reason-giving. But the courts’ role
does not end with requiring an explanation. The explanation can be evaluated for its
reasonableness, its ability to convince a reasonable person of its coherence. The
obligation of justification means the provision of reasons that would satisfy most people
of the reasonableness of a policy on its own terms, even if they are not convinced about
the wisdom of choosing such a policy in the first place. This makes it possible, as the
order in Grootboom illustrates, for a court to make a finding that there has been a
violation by the state of an individual’s socio-economic rights because the state’s
programme to fulfil the rights is not reasonable.
The Constitutional Court has emphasised that the enquiry into reasonableness must
be conducted on a case-by-case basis and that the standard is context-sensitive:
‘Reasonableness must be determined on the facts of each case’.58
Reasonableness in the socio-economic rights, the Constitutional Court has also
held, is a higher standard than that called for in a rationality review under s 9(1).59
A characteristic of a legal standard is that considerable interpretative discretion is
given to the adjudicator responsible for its application and that it therefore does not
specify an outcome in advance.60 Standards are ad hoc in their operation, in that
their application from case to case may differ considerably. Over time, however, the
standard becomes more rule-bound as courts develop guidelines and sets of factors
with a bearing on future applications.61 The Constitutional Court’s application of the
reasonableness standard to the particular facts of the Grootboom case is therefore
57
Ibid [42].
58
Ibid [92].
59
Bel Porto (note 6 above) 2002 (3) SA 265 (CC) [46]. On equal-treatment rationality see, further para 9.3 in
Chapter 9 above.
60
Standards are therefore distinct from rules. A rule that no one may exceed a speed limit of 120 km per hour
decides a great deal more in advance than a standard that no one may drive at an unreasonable speed. On this
distinction see, further, C Sunstein Legal Reasoning and Political Conflict (1996) 21–34.
61
Compare, for example, the enormous body of rules, factors and guidelines that have been developed in
elaboration of the standard of a ‘fair trial’.
575
instructive. The plight of the Grootboom applicants was succinctly described by the
Constitutional Court as follows:
The group of people with whom we are concerned in these proceedings lived in appalling
conditions, decided to move out and illegally occupied someone else’s land. They were
evicted and left homeless. The root cause of their problems is the intolerable conditions
under which they were living while waiting in the queue for their turn to be allocated
low-cost housing.62
The state had in place legislation and policy measures designed to provide for
alleviation, over time, of housing shortages by providing access to permanent, durable
residential structures with secure tenure rights. What was lacking was provision for
temporary shelter for people in a situation of homelessness: ‘there is no express
provision to facilitate access to temporary relief for people who have no access to land,
no roof over their heads, for people who are living in intolerable conditions and for
people who are in crisis because of natural disasters such as floods and fires, or because
their homes are under threat of demolition. These are people in desperate need’.63 The
legislative and policy measures had overlooked those most in need, an omission that was
unreasonable, additionally because it was in conflict with other constitutional
obligations to respect human dignity and the right to equality:
Reasonableness must also be understood in the context of the Bill of Rights as a whole. The
right of access to adequate housing is entrenched because we value human beings and want
to ensure that they are afforded their basic human needs. A society must seek to ensure that
the basic necessities of life are provided to all if it is to be a society based on human dignity,
freedom and equality. To be reasonable, measures cannot leave out of account the degree
and extent of the denial of the right they endeavour to realise. Those whose needs are the
most urgent and whose ability to enjoy all rights therefore is most in peril, must not be
ignored by the measures aimed at achieving realisation of the right. It may not be sufficient
to meet the test of reasonableness to show that the measures are capable of achieving a
statistical advance in the realisation of the right. Furthermore, the Constitution requires that
everyone must be treated with care and concern. If the measures, though statistically
successful, fail to respond to the needs of those most desperate, they may not pass the test.64
Reasonableness, the court holds in Grootboom, requires the design, adoption and
implementation of measures to realise socio-economic rights that are comprehensive, in
the sense that they do not exclude those most in need of the protection of those rights.
Reasonable measures were therefore not in place at the time of the initial application for
constitutional relief in Grootboom, and the state was therefore held to be in violation of
its obligations under s 26(2).65
62
63
Ibid [52].
64
Ibid [44].
65
Ibid [99]. The court noted that the defects in the state housing policy in the Cape Peninsula had been cured
shortly after the High Court application in the case by the introduction of an ‘Accelerated Managed Land
Settlement Programme’ by the Cape Metropolitan Council. The measures the programme introduced were
reasonable in that they aimed at benefiting families who were about to be evicted, those who are in a crisis
situation in an existing area such as in a flood-line, families located on strategic land and families from backyard
shacks or on the waiting list who are in crisis situations. ‘Its primary objective is the rapid release of land for
these families in crisis, with services to be upgraded progressively’ [61]. The court therefore ordered the state to
consider the implementation of similar measures on a national level [99]. This was finally done in 2004: chapter
12 of the National Housing Code deals with housing assistance in emergency circumstances. See Liebenberg
Socio-Economic Rights 399ff.
576
In the Treatment Action Campaign case, the court’s holding in Grootboom that
reasonableness entails comprehensiveness was the basis for its decision that the
government’s policy on the prevention of mother-to-child transmission of HIV
(MTCT) was unreasonable.66
The policy turned on the provision of nevirapine, an anti-retroviral drug that
significantly reduces the likelihood that HIV will be transmitted from mother to child
at birth. Government policy made nevirapine available only at a small number of
‘pilot sites’ (two state hospitals in each province). The idea was that the results of
the pilot programme would be used to evaluate the safety and effectiveness of the
treatment before it was made available as part of a future nationwide MTCT
programme. The problem was that this meant that for a considerable period of time
preventative treatment for MTCT would not be generally available throughout the
public health system:
The crux of the problem, however, lies elsewhere: what is to happen to those mothers and
their babies who cannot afford access to private health care and do not have access to the
research and training sites? It is not clear on the papers how long it is planned to take before
nevirapine will be made available outside these sites. . . . What is plain, though, is that for a
protracted period nevirapine would not be supplied at any public health institution other than
one designated as part of a research site.67
This was the key to the assessment of unreasonableness. The government had a number
of reasons for confining the provision of nevirapine to the pilot sites: firstly, it doubted
the efficacy of the drug in the absence of a comprehensive programme; secondly, it
feared the development of resistance to nevirapine; thirdly, it had doubts about the
safety of the drug; and, finally, the government claimed that the public health system
lacked the capacity to deliver the drug nationally. But these justifications were dismissed
by the court after a ‘hard-look’ scrutiny of each.68 The drug was, all scientific evidence
showed, significantly effective and the government’s concerns were not supported by
this evidence.69 The slim possibility of resistance was a minor problem compared to the
benefits of the treatment: ‘The prospects of the child surviving if infected are so slim and
the nature of the suffering so grave that the risk of some resistance manifesting at some
time in the future is well worth running’.70 Safety was, the scientific evidence showed,
‘no more than a hypothetical issue’.71 The lack of capacity in some parts of the public
health sector was ‘not relevant to the question whether nevirapine should be used to
reduce mother-to-child transmission of HIV at those public hospitals and clinics outside
66
Note 11 above. The decision was the result of carefully strategised public-interest litigation and was a
stunning victory for the Treatment Action Campaign in its long campaign against the Mbeki government’s
quixotic policies on HIV and AIDS. For the strategy and tactics behind the litigation and an optimistic assessment
of the repercussions of the Constitutional Court decision, see M Heywood ‘Preventing Mother-to-Child HIV
Transmission in South Africa: Background, Strategies and Outcomes of the Treatment Action Campaign Case
Against the Minister of Health’ (2003) 19 SAJHR 278. (Heywood was the National Secretary of the TAC at the
time of the litigation.)
67
Treatment Action Campaign (note 11 above) [17].
68
On the development of a ‘hard-look’ style of administrative-law review in the United States, see P Strauss
An Introduction to Administrative Justice in the United States (1989) 268ff.
69
Treatment Action Campaign (note 11 above) [57]–[58].
70
Ibid [59].
71
Ibid [60].
577
the research sites where facilities in fact exist for testing and counselling’.72 The
justifications for the failure to provide a comprehensive programme for preventing
MTCT were therefore inadequate.
The fact that the research and training sites will provide crucial data on which a
comprehensive programme for mother-to-child transmission can be developed and, if
financially feasible, implemented is clearly of importance to government and to the country.
So too is ongoing research into safety, efficacy and resistance. This does not mean, however,
that until the best programme has been formulated and the necessary funds and
infrastructure provided for the implementation of that programme, nevirapine must be
withheld from mothers and children who do not have access to the research and training
sites. Nor can it reasonably be withheld until medical research has been completed. A
programme for the realisation of socio-economic rights must
‘be balanced and flexible and make appropriate provision for attention to . . . crises and to
short, medium and long term needs. A programme that excludes a significant segment of
society cannot be said to be reasonable’.73
In Grootboom and Treatment Action Campaign, the court developed its criteria for
assessing the reasonableness of a government programme for the realisation of
socio-economic rights. Liebenberg summarises the characteristics of a reasonable
government programme as follows:74
• It must be capable of facilitating the realisation of the right.75
• It must be comprehensive, coherent and co-ordinated.76
• Appropriate financial and human resources must be made available for the
programme.77
• It must be balanced and flexible.78
• It must make appropriate provision for short-, medium- and long-term needs.79
• It must be reasonably conceived and implemented.80
• It must be transparent, and its contents must be made known effectively to the
public.81
• It must make short-term provision for those whose needs are most urgent and who
are living in intolerable conditions.82
Subsequently, in Khosa v Minister of Social Development, the Constitutional Court
emphasised the interconnectedness of the rights in the Bill of Rights and held that a
factor in ascertaining the reasonableness of a measure is its impact on other rights.83 So,
conferring benefits of the social security system on citizens only was not reasonable
72
Ibid [66].
73
Ibid (note 11 above) [68], quoting Grootboom (note 6 above) [43].
74
Liebenberg Socio-Economic Rights 152–153.
75
76
Ibid [39] and [40].
77
Ibid [39].
78
Ibid [68], [78] and [95].
79
Ibid [43].
80
Ibid [40]–[43].
81
82
Grootboom (note 6 above) [44], [64], [68], [99]; Treatment Action Campaign (note 11 above) [78].
83
Khosa (note 8 above), [44]: ‘When the rights to life, dignity and equality are implicated in cases dealing
with socio-economic rights, they have to be taken into account along with the availability of human and financial
resources in determining whether the state has complied with the constitutional standard of reasonableness. This
is, however, not a closed list and all relevant factors have to be taken into account in this exercise. What is
relevant may vary from case to case depending on the particular facts and circumstances. What makes this case
different to other cases that have previously been considered by this Court is that, in addition to the rights to life
578
because it violated the equality rights of permanent residents who, but for their lack of
citizenship, would qualify for the benefits provided under the system. Excluding
permanent residents was unfairly discriminatory against a vulnerable group in society,
discrimination with a strong stigmatising effect. Though permanent residents contribute
to the welfare system through the payment of taxes, they are considered ineligible for
the benefits of the system, creating the impression that permanent residents are in some
way inferior to citizens and less worthy of social assistance.84
In Mazibuko, the Constitutional Court dealt with the first attempt to litigate a case
on the right of access to sufficient water. The applicants were residents of one of the
poorest suburbs in Johannesburg. As part of a programme to curb water loss and
non-payment, residents were required to choose between a prepayment meter and a
yard tap with a restricted water flow. The prepayment meters dispensed 6 kilolitres
of free water per month for each household. After the free water allocation had been
consumed, the prepayment meters automatically cut off the water supply unless the
resident purchased more credit. Residents with prepayment meters, unlike those in
other suburbs of Johannesburg, were not given the option to buy water on credit.
However, prepayment users paid significantly less for water than those on credit
meters.
The applicants challenged the City’s free basic water policy, arguing that it was
insufficient and constituted an infringement of their rights of access to water and to
dignity and equality. They also challenged the lawfulness of the use of prepayment
meters by the City.
The court held that the right to water did not require the state to provide every
person with sufficient water on demand.85 The Constitutional Court found that the
City’s free basic water policy was a reasonable measure to achieve the progressive
realisation of the right. The court declined to give a quantified content to the right to
water, holding that this would not be appropriate. It reaffirmed the approach to the
standard of reasonableness that it had taken in Grootboom, Treatment Action
Campaign and subsequent cases:
ordinarily it is institutionally inappropriate for a court to determine precisely what the
achievement of any particular social and economic right entails and what steps government
should take to ensure the progressive realisation of the right. This is a matter, in the first
place, for the legislature and executive, the institutions of government best placed to
investigate social conditions in the light of available budgets and to determine what targets
are achievable in relation to social and economic rights. Indeed, it is desirable as a matter of
democratic accountability that they should do so for it is their programmes and promises that
are subjected to democratic popular choice.86
The applicants had argued that if the court failed to specify what quantity of water
constituted ‘sufficient water’ within the meaning of s 27 of the Constitution, and held the
City’s policy to be reasonable, litigation in respect of the positive obligations imposed
by social and economic rights would be futile. The Constitutional Court dismissed this
argument as follows:
and dignity, the social-security scheme put in place by the state to meet its obligations under section 27 of the
Constitution raises the question of the prohibition of unfair discrimination.’
84
Ibid [74].
85
Mazibuko v City of Johannesburg (note 38 above) [50].
86
Ibid [61].
579
The purpose of litigation concerning the positive obligations imposed by social and
economic rights should be to hold the democratic arms of government to account through
litigation. In so doing, litigation of this sort fosters a form of participative democracy that
holds government accountable and requires it to account between elections over specific
aspects of government policy.
When challenged as to its policies relating to social and economic rights, the government
agency must explain why the policy is reasonable. Government must disclose what it has
done to formulate the policy: its investigation and research, the alternatives considered, and
the reasons why the option underlying the policy was selected. The Constitution does not
require government to be held to an impossible standard of perfection. Nor does it require
courts to take over the tasks that in a democracy should properly be reserved for the
democratic arms of government. Simply put, through the institution of the courts,
government can be called upon to account to citizens for its decisions. This understanding of
social and economic rights litigation accords with the founding values of our Constitution
and, in particular, the principles that government should be responsive, accountable and
open.
Not only must government show that the policy it has selected is reasonable, it must show
that the policy is being reconsidered consistent with the obligation to ‘‘progressively
realise’’ social and economic rights in mind. A policy that is set in stone and never revisited
is unlikely to be a policy that will result in the progressive realisation of rights consistently
with the obligations imposed by the social and economic rights in our Constitution.87
(bb) ‘Progressive realisation’

The positive dimension of the socio-economic rights is further qualified by the use of the
phrase employed in s 26(2) and 27(2) obliging the state to take only those steps ‘within
its available resources, to achieve the progressive realisation of . . . [the] right’. The
meaning of this qualification was interpreted as follows by the Constitutional Court in
the Soobramoney decision:
What is apparent from these provisions is that the obligations imposed on the state by ss 26
and 27 in regard to access to housing, health care, food, water and social security are
dependent upon the resources available for such purposes, and that the corresponding rights
themselves are limited by reason of the lack of resources. Given this lack of resources and
the significant demands on them that have already been referred to, an unqualified obligation
to meet these needs would not presently be capable of being fulfilled.88
This passage suggests that the positive dimension of the socio-economic rights is
‘realised’ or fulfilled through state action ‘progressively’ or over a period of time. The
fact that the full realisation of the rights can only be achieved progressively does not
alter the obligation on the state to take those steps that are within its power immediately
and other steps as soon as possible. The burden is on the state to show that it is making
progress toward the full realisation of the rights.89
In Grootboom, the Constitutional Court held as follows:
The term ‘progressive realisation’ shows that it was contemplated that the right could not be
realised immediately. But the goal of the Constitution is that the basic needs of all in our
87
Ibid [160]–[162].
88
89
Maastricht Guidelines (note 23 above) para 8. This accords with the approach of the Constitutional Court in
Soobramoney (note 16 above). While the state has a margin of discretion in determining which measures it will
implement and how it will utilise its resources, it must show that it is exercising its discretion rationally and in
good faith.
580
society be effectively met and the requirement of progressive realisation means that the State
must take steps to achieve this goal. It means that accessibility should be progressively
facilitated: legal, administrative, operational and financial hurdles should be examined and,
where possible, lowered over time. Housing must be made more accessible not only to a
larger number of people but to a wider range of people as time progresses.90
The Constitutional Court then cited with approval the following passage from the
Committee on Economic, Social and Cultural Rights’ General Comment 3:
Nevertheless, the fact that realization over time, or in other words progressively, is foreseen
under the Covenant should not be misinterpreted as depriving the obligation of all
meaningful content. It is on the one hand a necessary flexibility device, reflecting the
realities of the real world and the difficulties involved for any country in ensuring full
realization of economic, social and cultural rights. On the other hand, the phrase must be
read in the light of the overall objective, indeed the raison d’être, of the Covenant which is to
establish clear obligations for States parties in respect of the full realization of the rights in
question. It thus imposes an obligation to move as expeditiously and effectively as possible
towards that goal. Moreover, any deliberately retrogressive measures in that regard would
require the most careful consideration and would need to be fully justified by reference to
the totality of the rights provided for in the Covenant and in the context of the full use of the
maximum available resources.91
(cc) ‘Within its available resources’92

The socio-economic rights are further limited by the qualification that they are only
available to the extent that state resources permit. This follows from the presence of the
internal qualifiers in ss 26(2) and 27(2), and the Constitutional Court’s determination
that ss 26(1) and 27(1) must be read together with 26(2) and 27(2) in order to give
content to the obligations that the sections give rise to.93
In Soobramoney, Chaskalson P emphasised the qualifications of the socioeconomic
rights enshrined in s 26 and s 27 of the Constitution. He found that the obligations
imposed on the state by those sections are:
[D]ependent upon the resources available for such purposes, and that the corresponding
rights themselves are limited by reason of the lack of resources. Given this lack of resources
and the significant demands on them that have already been referred to, an unqualified
obligation to meet these needs would not presently be capable of being fulfilled.94
The availability of appropriate resources is a necessary condition for reasonableness. A
programme that fails to allocate appropriate resources is unreasonable. However, once
an organ of state has demonstrated that its allocation of resources is appropriate in the
circumstances, much of its burden will have been discharged:
The third defining aspect of the obligation to take the requisite measures is that the
obligation does not require the State to do more than its available resources permit. This
means that both the content of the obligation in relation to the rate at which it is achieved as
90
91
General Comment 3 (note 22 above) para 9, cited in Grootboom (note 6 above) [45].
92
For a full discussion of the effect of resource constraints on the realisation of socio-economic rights, see
N Ferreira ‘Feasibility Constraints and the South African Bill of Rights: Fulfilling the Constitution’s Promise in
Conditions of Scarce Resources’ (2012) 129 SALJ 129.
93
Treatment Action Campaign (note 11 above) [29]–[32]; Soobramoney (note 16 above) [22]; Grootboom
(note 6 above) [74]; Khosa (note 8 above) [43].
94
581
well as the reasonableness of the measures employed to achieve the result are governed by
the availability of resources. Section 26 does not expect more of the State than is achievable
within its available resources.95
However, should resources become available, it will be difficult for the state to justify its
failure to devote those resources to the fulfilment of the rights. As more resources
become available, more must be done to fulfil the rights. This indicates, as argued
above, that an important aspect of the positive dimension of the socio-economic rights is
a right to have the state adequately justify its use of public resources to its citizens.
The Constitutional Court has never yet examined a budgetary allocation and ruled
that the allocation itself is not a reasonable attempt to realise the right. However, it
does not follow that budgetary allocations are immune from judicial scrutiny. In Blue
Moonlight the municipality appealed to its inadequate budget to justify its failure to
provide temporary accommodation to a group of evictees. The Constitutional Court
rejected this argument. It held that:
The City provided information relating specifically to its housing budget, but did not provide
information relating to its budget in general. We do not know exactly what the City’s overall
financial position is. This Court’s determination of the reasonableness of measures within
available resources cannot be restricted by budgetary and other decisions that may well have
resulted from a mistaken understanding of constitutional or statutory obligations. In other
words, it is not good enough for the City to state that it has not budgeted for something, if it
should indeed have planned and budgeted for it in the fulfilment of its obligations.96
This is a significant ruling. It creates the possibility that courts may scrutinise budgeting
processes and decisions for reasonableness.
The ‘available resources’ qualification is also employed in the ICESCR, where it
is understood to grant the state a margin of discretion in selecting the means for
achieving socio-economic rights. However, as noted above, the qualification cannot
mean that the state is simply left to its own devices in choosing whether and how to
implement the rights.97 In particular, resource scarcity does not relieve states of its
duty to fulfil its ‘core minimum obligations’.98 This ‘floor’ of obligations must be
met unless the state can show that its resources are ‘demonstrably inadequate’ to
allow it to fulfil its duties. However, even when resources are scarce the obligation
remains on the state to ‘strive to ensure the widest possible enjoyment of the
relevant rights under the prevailing circumstances’.99
The Constitutional Court declined the invitation to set a core minimum obligation
guideline for the right to housing in Grootboom, finding instead that the ‘real
question’ under the 1996 Constitution was whether the standard of reasonableness
had been complied with. Moreover, establishing a core minimum standard raised the
problem of polycentricity: such a determination would require a great deal of
95
96
City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd 2012 (2) SA 104
(CC) [74].
97
This point is well made by D Moellendorf ‘Reasoning About Resources: Soobramoney and the Future of
Socio-Economic Rights Claims’ (1998) 14 SAJHR 327, 331: ‘It would be remarkable, for example, for the court
to claim that the right to a fair trial need not be protected because those legislating and administering the budget
have simply not allowed the resources to provide for fair trials. This would reduce the right to a fair trial to a mere
policy priority of no more importance than other priorities . . .’.
98
99
Ibid para 11. Maastricht Guidelines (note 23 above) para 9.
582
evidence and information not ordinarily available to a court hearing a claim of a

violation of individual rights. The court went on to hold that there may be cases
where it may be possible and appropriate to have regard to the content of a
minimum core obligation to determine whether the measures taken by the state are
reasonable.100 However, even if it were appropriate, this could not be done without
sufficient information being placed before a court to enable it to determine the
minimum core in any given context. By declining the invitation to establish a
minimum core obligation, the court ruled out a holding that certain positive
obligations in terms of the socio-economic rights must be immediately complied with
and are immediately enforceable: ‘Neither section 26 nor section 28 entitles the
respondents to claim shelter or housing immediately upon demand’.101 This meant
that even if a minimum core obligation was established in respect of one of the
socio-economic rights, this would be relevant to the assessment of reasonableness,
and would not confer an immediately enforceable self-standing right.102
In the Treatment Action Campaign case, the Constitutional Court was again urged
to establish a core minimum content, this time for the right to health care. Once
again, the court declined to do so, holding that the s 27 right was implemented by
the state taking reasonable measures progressively, and that the court’s role was
confined to ensuring that the legislative and other measures taken by the state were
reasonable.103 While ‘such determinations of reasonableness may in fact have
budgetary implications’, the court admitted, they are ‘in themselves directed at
rearranging budgets’.104 The court again declined to adopt the minimum core
approach to socio-economic rights in its Mazibuko105 and Nokotyana106 decisions.
In short, judicial review of government’s social programmes for reasonableness is
the defining feature of South Africa’s socio-economic rights jurisprudence. Cass
Sunstein characterises this approach as ‘novel and exceedingly promising’.107
Sunstein argues that the Constitutional Court’s approach to socio-economic rights ‘is
respectful of democratic prerogatives and of the limited nature of public resources,
while also requiring special deliberative attention to those whose minimal needs are
not being met.’108
100
Grootboom (note 6 above) [33]. Though the Constitutional Court did not spell this out, once South Africa
has ratified the ICESCR and where the Committee has specified a core minimum obligation in relation to the
right to housing, health care or social security, this obligation will have to be met. According to the Committee,
‘[domestic] courts should take account of Covenant rights where this is necessary to ensure that the State’s
conduct is consistent with its obligations under the Covenant . . . [W]hen a domestic decision maker is faced with
a choice between an interpretation of domestic law that would place the State in breach of the Covenant and one
that would enable the State to comply with the Covenant, international law requires the choice of the latter’.
Committee on Economic, Social and Cultural Rights, General Comment 9 ‘The Domestic Application of the
Covenant’ (1998), para 15.
101
102
This is the interpretation by the court in Treatment Action Campaign (note 11 above [34]) of its holding in
Grootboom (note 6 above).
103
104
Ibid [38].
105
Note 38 above.
106
Nokotyana v Ekurhuleni Metropolitan Municipality 2010 (4) BCLR 312 (CC).
107
C Sunstein Designing Democracy (2001) 221.
108
Ibid. The arguments for and against the Constitutional Court’s reasonableness approach and its rejection of
the minimum core are summarised in Liebenberg Socio-Economic Rights 163–173.
583
In Mazibuko, the Constitutional Court summarised its approach as follows:

[T]he positive obligations imposed upon government by the social and economic rights in
our Constitution will be enforced by courts in at least the following ways. If government
takes no steps to realise the rights, the courts will require government to take steps. If
government’s adopted measures are unreasonable, the courts will similarly require that they
be reviewed so as to meet the constitutional standard of reasonableness. From Grootboom, it
is clear that a measure will be unreasonable if it makes no provision for those most
desperately in need. If government adopts a policy with unreasonable limitations or
exclusions, as in Treatment Action Campaign No 2, the Court may order that those are
removed. Finally, the obligation of progressive realisation imposes a duty upon government
continually to review its policies to ensure that the achievement of the right is progressively
realised.109
(dd) Positive obligations grant authority for state conduct

The positive obligations imposed by the socio-economic rights are, in the absence of a
specific legislative empowering provision, an indirect grant of authority for state
conduct. This is the implication of Minister of Public Works v Kyalami Ridge
Environmental Association.110 The case concerned a challenge by private landowners to
a government decision to settle approximately 300 flood victims in a transit camp on
state-owned land. The decision was challenged as unlawful because there was no
legislation authorising the government’s conduct. The Constitutional Court held that the
provision of relief to the victims of natural disasters is an essential role of a government
in a democratic state, and government would have failed in its duty to the victims of the
floods if it had done nothing. Though there was no legislation that made adequate
provision for such a situation, the government’s conduct was justified, inter alia,111 by
its constitutional obligations to take reasonable legislative and other measures to achieve
the progressive realisation of the right to adequate housing.
26.4 SPECIFIC RIGHTS: HOUSING
(a) Access to adequate housing

Section 26(1) provides a right of access to adequate housing. This is not an unqualified
obligation on the state or a duty to provide housing on demand. First, the right is one of
‘access to’ housing, rather than a ‘right to adequate housing’ as in the ICESCR. ‘This
difference’, the Constitutional Court held in Grootboom, ‘is significant’:
It recognises that housing entails more than bricks and mortar. It requires available land,
appropriate services such as the provision of water and the removal of sewage and the
financing of all of these, including the building of the house itself. For a person to have
access to adequate housing all of these conditions need to be met: there must be land, there
must be services, there must be a dwelling. Access to land for the purpose of housing is
therefore included in the right of access to adequate housing in section 26. A right of access
109
110
Minister of Public Works v Kyalami Ridge Environmental Association 2001 (3) SA 1151 (CC).
111
Other factors were the common-law rights of the state as owner of the land on which the flood victims were
settled and the government’s executive power to implement policy decisions (in this case its response to the
emergency caused by the floods). Ibid [52]. The court emphasised that, even when acting to fulfil the obligations
of the Constitution, the government had to act within the confines of the rule of law and the doctrine of separation
of powers and with reference to any restrictions on its powers imposed by legislation. Ibid [38], [41]–[42], [49].
584
to adequate housing also suggests that it is not only the state who is responsible for the
provision of houses, but that other agents within our society, including individuals
themselves, must be enabled by legislative and other measures to provide housing. The state
must create the conditions for access to adequate housing for people at all economic levels
of our society. State policy dealing with housing must therefore take account of different
economic levels in our society.112
This means that the extent of the state’s positive obligations may differ according to the
economic resources available to different sectors of the population. Those with sufficient
economic means already have access to adequate housing (since they can afford to rent
or purchase it, and because the law currently permits such transactions) and therefore the
state can direct its attention to those without sufficient means and without access.
However, in Blue Moonlight the Constitutional Court held that, where the state takes
steps to provide housing, it may not arbitrarily exclude categories of people from its
programmes.113 The court held that the exclusion of evictees from privately owned
property from the City of Johannesburg’s emergency housing programme was
unconstitutional.
(b) Reasonable measures to achieve the progressive realisation of the right

to housing
Section 26(2) provides that the state ‘must take reasonable legislative and other
measures within its available resources, to achieve the progressive realisation of this
right’. Reasonableness provides the yardstick against which measures must be tested. In
accordance with the division of functions under the Constitution,114 both legislative and
administrative measures must be taken at national, provincial and local government
levels.115 In Grootboom, the Constitutional Court described and evaluated the
reasonableness of the current housing programme at all levels, concluding that the
programme was deficient in its failure to provide emergency housing.116 The
Constitutional Court’s decision in Joe Slovo makes it clear that, when seeking to
relocate a community for the purposes of housing development, the state’s positive
obligations to provide access to adequate housing, progressively and within its available
resources, are directly relevant to the question whether it is just and equitable to evict.117
The separate judgments in the Joe Slovo matter118 considered whether, in seeking the
eviction of the applicants, the respondents (particularly the national Minister for
Housing and the Minister for Housing in the Western Cape) had complied with their
positive obligations to act reasonably in seeking to promote the right of access to
adequate housing contained in s 26 of the Constitution. All the judgments concluded
that the state had discharged these obligations.119 Yacoob J introduced the relevance of
the state’s positive obligations in the context of this case as follows:
112
Ibid [35].
113
Blue Moonlight (note 96 above).
114
Schedule 4, listing ‘Housing’ as a functional area of concurrent provincial and legislative competence.
115
116
Ibid [47]–[69].
117
Residents of Joe Slovo Community, Western Cape v Thubelisha Homes 2010 (3) SA 454 (CC).
118
Five separate judgments were delivered. In addition, a short judgment of the whole court was handed down,
setting out the basis on which the members of the court unanimously supported the same order.
119
Joe Slovo (note 117 above) judgment of the court [6].
585
The applicants are being evicted and relocated in order to facilitate housing development. In
the circumstances their eviction constitutes a measure to ensure the progressive realisation
of the right to housing within the meaning of section 26(2) of the Constitution.120
Accordingly, Joe Slovo establishes that, at least where eviction is sought for the
purposes of housing development, it is not enough simply to ask whether it is just and
equitable to evict in terms of the Prevention of Illegal Eviction from and Unlawful
Occupation of Land Act 19 of 1998; the court must go further and consider whether,
viewed as part of the state’s programme to promote the right of access to adequate
housing, the state has acted reasonably in seeking eviction. Yacoob J reaffirmed the test
for reasonableness laid down in Grootboom:
The measures must establish a coherent public housing program directed towards the
progressive realisation of the right of access to adequate housing within the State’s available
means. The program must be capable of facilitating the realisation of the right. The precise
contours and content of the measures to be adopted are primarily a matter for the Legislature
and the Executive. They must, however, ensure that the measures they adopt are reasonable.
In any challenge based on s 26 in which it is argued that the State has failed to meet the
positive obligations imposed upon it by s 26(2), the question will be whether the legislative
and other measures taken by the State are reasonable. A court considering reasonableness
will not enquire whether other more desirable or favourable measures could have been
adopted, or whether public money could have been better spent. The question would be
whether the measures that have been adopted are reasonable. It is necessary to recognise that
a wide range of possible measures could be adopted by the State to meet its obligations.
Many of these would meet the requirement of reasonableness. Once it is shown that the
measures do so, this requirement is met.121
Although, as Yacoob J notes,122 many of the factors that inform the just and equitable
inquiry will also go to reasonableness in terms of s 26(2), this additional question is not
mere semantics. Rather, it is an acknowledgement that mass eviction is a retrogressive
step on the road to the promotion of the right of access to adequate housing and needs to
be justified, not just on its own terms as an eviction, but also within the bigger picture of
progressive housing delivery.
(c) Protection against unlawful and arbitrary eviction or demolition of a

home: s 26(3)
(i) Application of s 26(3)
The general right of access to housing can be negatively enforced against improper
invasion in the form of arbitrary evictions. Section 26(3) puts the matter beyond doubt
by expressly entrenching a conventional negative right, unqualified by considerations
relating to the state’s available resources, against arbitrary evictions and demolitions.
The right prohibits evictions without a court order and requires a court, when
considering whether to issue an eviction order, to consider all relevant circumstances. It
does not however, absolutely prohibit evictions, even when these result in people being
put out of their homes.123
120
Joe Slovo (note 117 above) judgment of Yacoob J [115].
121
122
Joe Slovo (note 117 above) judgment of Yacoob J [116].
123
Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC) [21].
586
Section 26(3) protects against eviction or demolition of a person’s home unless a

court orders eviction after considering all the relevant circumstances. The nature of the
home and the legal basis of occupation is not defined or qualified. In order to qualify as
a ‘home’ an intention to occupy a dwelling for residential purposes permanently or for a
considerable period of time is probably required. As to the nature of the dwelling, rented
accommodation, housing provided to farmworkers and traditional dwellings will
qualify. A shack or other informal dwelling may also be a home.124 Indeed the
occupants of informal dwellings are often those most in need of the protection afforded
by this provision.125 Obviously, premises that are not occupied for residential purposes
(offices, shops) cannot qualify as a ‘home’.126
‘Evictions’ have been defined as ‘the permanent or temporary removal against their
will of individuals, families and/or communities from the homes and/or land which they
occupy.127 Such evictions can only occur once a court order has been granted. This is the
procedural aspect of s 26(3). The provision means that evictions and demolishing of
homes cannot take place on the basis of an administrative decision alone, but only on the
authority of a court order and after all relevant circumstances have been taken into
account.128 Section 3B of the Prevention of Illegal Squatting Act 52 of 1951 which
allowed landowners to demolish buildings or structures erected on their land without the
need for a court order was obviously in conflict with the right.129
At common law, the rules and procedures in an action for eviction were heavily
weighted in favour of the right of ownership. The plaintiff’s summons needed merely to
allege that the plaintiff is the owner of the property and that the defendant is in
occupation. The onus was then on the defendant to allege and establish a contractual
right to continue to occupy or a right of retention.130 If the defendant pleaded lawful
occupation in terms of, say, a lease agreement, the owner must answer this plea. If the
plaintiff at any point conceded the existence of a lease agreement he or she assumed the
onus of proving lawful termination of the defendant’s right to occupy the land in terms
of that agreement.
124
See Despatch Municipality v Sunridge Estate and Development Corporation (Pty) Ltd 1997 (4) SA 596
(SE) (legislation permitting the demolition of squatter shacks without a court order a violation of s 26(3)). See
also, Makama v Administrator, Transvaal 1992 (2) SA 278 (T), 285: ‘though the concept ‘‘home’’ is of wide and
varied nature when applied to persons, it does connote a shelter against the elements providing some of the
comforts of life with some degree of permanence’.
125
Port Elizabeth Municipality (note 123 above) [17] (for poor people in particular protection against forced
removal protection of the ‘only relatively secure space of privacy and tranquillity in . . . a turbulent and hostile
world’).
126
Ross v South Peninsula Municipality 2000 (1) SA 589 (C).
127
UN Committee on Economic, Social and Cultural Rights, General Comment 7 ‘The right to adequate
housing (art 11.1) forced evictions’ (1997) para 4.
128
Equally, an eviction order cannot be issued by a clerk of the Magistrate’s Court or the Registrar of the High
Court in an application for default judgment. Ross (note 126 above).
129
Despatch Municipality (note 124 above) (Section 3B of the PISA an unconstitutional violation of s 26(3)).
See also the comments of Sachs J on the PISA (a ‘cornerstone of apartheid land law’) in Port Elizabeth
Municipality (note 123 above) [8]–[10]. The PISA was repealed by the Prevention of Illegal Eviction from and
Unlawful Occupation of Land Act 19 of 1998 (PIE Act). The PIE Act permits a court to order the eviction of
unlawful occupiers of land only when ‘just and equitable to do so, after considering all the relevant
circumstances, including the rights and needs of the elderly, children, disabled persons and households headed by
women’. In cases where land has been unlawfully occupied for more than six months the relevant circumstances
include ‘whether land has been made available or can reasonably be made available by a municipality or other
organ of state or another land owner for the relocation of the unlawful occupier’.
130
Chetty v Naidoo 1974 (3) SA 13 (A).
587
The common law in relation to evictions did not suffice to give effect to s 26(3). The
legislature accordingly sought to further s 26’s goal of preventing homelessness by
granting rights protecting occupiers against inequitable evictions.131 There are two
principal statutes that have this aim: the Extension of Security of Tenure Act 62 of 1997
(‘ESTA’) and the Prevention of Illegal Eviction from and Unlawful Occupation of Land
Act 19 of 1998 (‘PIE Act’). The ESTA grants various forms of protection against
eviction to ‘occupiers’ of rural land who have some form of consent to occupy. The PIE
Act protects unlawful occupiers of rural or urban land (other than ESTA occupiers) from
eviction. Both statutes considerably amend the common-law eviction procedure by
preventing evictions on default, requiring various circumstances to be taken into account
before an eviction can be ordered and granting courts a broad discretion to decline to
order evictions on grounds of justice and equity.132
To what type of evictions do the two tenure-security statutes apply? Clearly, the
common law still governs evictions from premises occupied other than for residential
purposes. The ESTA applies to people who ‘reside’ on land, meaning that they must
regard it as their ‘home’. The PIE, intended to give effect to s 26(3), is also confined to
evictions from a ‘home’ and not from premises occupied for purposes other than
dwelling or shelter.133
A number of conflicting High Court decisions indicated that there were two ways to
interpret the scope of the PIE.134 On its own terms the Act was ambiguous, applying to
‘a person who occupies land without the express or tacit consent of the owner . . . or
without any other right in law to occupy such land’.135 This could mean that the initial
act of occupation had to be unlawful—confining the scope of the Act to the eviction of
squatters or land invaders. The phrase could also be interpreted to apply not only to an
act of squatting but also to occupation that was initially lawful but that had subsequently
become unlawful. The second interpretation would have the Act covering, in addition to
squatters, cases of ‘holding over’ (continued occupation of leased premises in breach of
the contract of lease or by mortgage bond defaulters). The controversy was settled by the
131
AJ van der Walt ‘Exclusivity of Ownership, Security of Tenure and Eviction Orders: a Critical Evaluation
of Recent Case Law’ (2002) 18 SAJHR 371, 402.
132
To summarise, a court cannot order eviction of an ESTA occupier unless the eviction is ‘just and equitable,
having regard to all relevant factors’ (s 8(1)). A number of factors are listed (for example, fairness of the consent
to occupy, fairness of the termination of right of residence, hardship to the parties). Similarly, in terms of the PIE,
an unlawful occupier can only be evicted by a court ‘if it is of the opinion that is just and equitable to do so, after
considering all the relevant circumstances’. The list of relevant circumstances includes ‘the rights and needs of
the elderly, children, disabled persons and households headed by women’ (s 4(6)). In the case of evictees who
have been in occupation for more than six months, the court must consider whether ‘land has been made
available or can reasonably be made available by a municipality or other organ of state or another land owner for
the relocation of the unlawful occupier’ (s 4(7)). On the interpretation and application of these factors see
Baartman v Port Elizabeth Municipality 2004 (1) SA 560 (SCA) [18] (given state’s obligations to provide access
to adequate housing, availability of suitable alternative land for evictees an important factor when eviction order
is sought by an organ of state); Port Elizabeth Municipality (note 123 above) [56] (local government under
heightened duties to achieve right to housing and respect human dignity; when the need to evict people arises,
some attempts to resolve the problem (for example by mediation) before seeking a court order usually required).
See also City of Cape Town v Unlawful Occupiers, Erf 1800, Capricorn 2003 (6) SA 140 (C); ABSA Bank Bpk v
Murray 2004 (2) SA 15 (C).
133
Ndlovu v Ngcobo 2003 (1) SA 113 (SCA) [20]; Shoprite Checkers (Pty) Ltd v Jardim 2004 (1) SA 502 (O).
134
The exemplary cases are Amod v South Peninsula Municipality [1999] 2 All SA 423 (W) (PIE does not
apply to holding over) and Bekker v Jika [2001] 4 All SA 573 (SEC) (PIE applies to evictions of mortgage
defaulters). These and other cases are surveyed by Van der Walt (note 131 above) 384–388.
135
Section 1 sv ‘unlawful occupier’.
588
SCA in Ndlovu v Ngcobo, the majority of the court holding that the correct interpretation
is the second one:
. . . it cannot be discounted that Parliament, as it said, intended to extend the protection of
PIE to cases of holding over of dwellings and the like. . . . This does not imply that the
owners concerned would not be entitled to apply for and obtain eviction orders. It only
means that the procedures of PIE have to be followed.136
The decision in Ndlovu has the result that there is little scope left for the common-law
eviction procedures that were condoned in Brisley v Drotsky.137 Evictions from
non-residential property aside, all evictions will fall under the coverage of the ESTA or
the PIE Act or, if not, will be governed by other tenure-security statutes, namely the
Interim Protection of Informal Land Rights Act 31 of 1996138 or the Land Reform
(Labour Tenants) Act 3 of 1996.
(ii) Content of the s 26(3) right

Section 26(3) imposes both procedural and substantive requirements to guard against
arbitrary evictions. The procedural component of s 26(3) has seen substantial
development by the courts. Academic commentators have described how the
‘proceduralisation’ of constitutional housing rights in South Africa has been employed
gradually to give ‘remedial bite’ to the right.139 One can understand South Africa’s
housing jurisprudence during this phase as a ‘bridge’, employing procedural
principles—principally joinder of the relevant municipality, reporting obligations140 and
meaningful engagement141—to move towards establishing the substantive content of the
s 26 housing right.142
Section 4 of the PIE imposes heightened requirements for service of an initial notice
of the proceedings required in terms of s 4(2) and then service of the eviction application
itself. In Cape Killarney Property Investments, the Supreme Court of Appeal held that
these notice provisions are peremptory in nature, by virtue of s 4(1).143
Where the eviction of occupiers threatens to render them homeless, the relevant
municipality ought to be cited as a party. If not originally cited, it may be joined on
application by any of the parties. In Changing Tides, the SCA explained when joinder of
the municipality is required:
136
Ndlovu (note 133 above) [23].
137
Brisley v Drotsky 2002 (4) SA 1 (SCA) (‘relevant circumstances’ that must be considered when evicting
someone are legally relevant circumstances such as the fact that the evictee’s tenure is unlawful; s 26 does not
require the court to consider the personal circumstances of the person facing eviction or the availability of
alternative accommodation).
138
Holders of informal land rights as defined by this Act are excluded from the definition of ‘unlawful
occupier’ in the PIE.
139
B Ray ‘Occupiers of 51 Olivia Road v City of Johannesburg: Enforcing the Right to Adequate Housing
through ‘‘Engagement’’’ (2008) 8 (4) Human Rights Law Review 703; B Ray ‘Proceduralisation’s Triumph and
Engagement’s Promise in Socio-economic Rights Litigation’ (2011) 27 SAJHR 107; G Quinot & S Liebenberg
‘Narrowing the Band: Reasonableness Review in Administrative Justice and Socio-economic Rights
Jurisprudence in South Africa’ 2011 Stell LR 639; S Wilson & J Dugard ‘Taking poverty seriously: The South
African Constitutional Court and Socio-economic Rights’ 2011 Stell LR 664.
140
See Blue Moonlight Properties 39 (Pty) Ltd v Occupiers of Saratoga Avenue 2009 (1) SA 470 (W).
141
Occupiers of 51 Olivia Road, Berea Township, and 197 Main Street, Johannesburg v City of Johannesburg
2008 (3) SA 208 (CC).
142
See generally S Wilson ‘Breaking the Tie: Evictions from Private Land, Homelessness and a New
normality’ (2009) 126 SALJ 270.
143
Cape Killarney Property Investments (Pty) Ltd v Mahamba 2001 (4) SA 1222 (SCA) [11] and [17].
589
Whenever the circumstances alleged by an applicant for an eviction order raise the
possibility that the grant of that order may trigger constitutional obligations on the part of a
local authority to provide emergency accommodation, the local authority will be a necessary
party to the litigation and must be joined. Where the applicant is doubtful about the position
it would be a wise precaution for it to join the local authority. That does not mean that the
local authority will need to become embroiled in every case in which an eviction order under
PIE is sought. The question in the first instance is always whether the circumstances of the
particular case are such as may (not must) trigger the local authority’s constitutional
obligations in regard to the provision of housing or emergency accommodation.144
The municipality will then have an obligation to engage meaningfully with the
occupiers, the owner and any other party and to report to the court on what steps it will
take to make alternative accommodation available to those occupiers threatened with
homelessness. The High Court hearing the eviction application must investigate the
availability of alternative accommodation, even if the period of occupation is less than
six months.145 The SCA in Changing Tides provided a useful outline of the information
that ought to be included, which includes information relating to: (a) the building;
(b) the occupiers; (c) the prospect of homelessness; (d) steps proposed to address
homelessness; (e) the implications of delay for the owners; (f) details of engagement by
the municipality with the owners and occupiers; and (g) whether it believes there is
scope for mediation.146
The substantive dimension of s 26(3) is less well developed. As regards owners of
private property seeking eviction, the courts have begun to give content to the ‘just
and equitable’ enquiry mandated by the PIE Act. In Blue Moonlight, Van der
Westhuizen J (for a unanimous court) traced the relevant constitutional provisions,
including ss 25 and 26, the historical context of the PIE Act and the transformative
vision of the Constitution. He also referred to the concept of ubuntu, affirming an
earlier dictum of the court’s decision in PE Municipality that ubuntu ‘combines
individual rights with communitarian philosophy’ and is a unifying motif of the Bill
of Rights.147 Van der Westhuizen J held that a court must consider an ‘open list of
factors’ in determining what is just and equitable. In the present matter, relevant
factors included the following:
The Occupiers have been in occupation for more than six months. Some of them have
occupied the property for a long time. The occupation was once lawful. Blue Moonlight was
aware of the Occupiers when it bought the property. Eviction of the Occupiers will render
them homeless. There is no competing risk of homelessness on the part of Blue Moonlight,
as there might be in circumstances where eviction is sought to enable a family to move into
a home.148
In Changing Tides, the SCA explained that ‘[t]he right of property owners is not
absolute’, suggesting that ‘[o]ne can imagine cases where it would not be just and
equitable to grant an eviction order at the instance of a private landowner, as in the case
of a small portion of undeveloped land that the owner had allowed to be occupied for
144
City of Johannesburg v Changing Tides 74 (Pty) Ltd 2012 (6) SA 294 (SCA) [38] (footnotes omitted).
145
Occupiers of Portion R25 of the Farm Mooiplaats 355 JR v Golden Thread Ltd 2012 (2) SA 337 (CC) [16].
146
Changing Tides (note 144 above) [40].
147
Blue Moonlight (note 96 above) [38], referring to Port Elizabeth Municipality v Various Occupiers 2005
(1) SA 217 (CC) [37].
148
Blue Moonlight (note 96 above) [39].
590
Socio-Economic Rights 26.4–26.5
many years by former employees, who were now aged, in circumstances where the
owner was not inconvenienced by their presence.’149
Even where it is just and equitable to grant an eviction order, the Constitutional
Court in Blue Moonlight explained that private owners that require ownership of
occupied property may ‘have to be somewhat patient, reasoning that an owner’s right
to use and enjoy property at common law can be limited in the process of the justice
and equity enquiry mandated by PIE.’150 The Constitutional Court has confirmed in a
line of judgments that the date of the eviction and the provision of alternative
accommodation must be linked, so that there is no intervening period of
homelessness.151
As concerns the obligations of the state, the courts have been prepared, as part of
an eviction order, to order the state (local government) to provide alternative
accommodation and have employed the threat of homelessness as the criterion to do
so.152 With regard to when temporary emergency accommodation ought to be
provided the Supreme Court of Appeal in Changing Tides153 held that, although the
municipality may be entitled to review who is entitled to temporary emergency
accommodation following an eviction, the municipality should first provide the
accommodation and then conduct the review:
This gives rise to the possibility—not likely to be great—that some people not entitled
thereto may obtain temporary access to temporary emergency accommodation, until their
disqualification is discovered. However, that is preferable to a large number of people who
undoubtedly are entitled to such accommodation being kept out of it and forced to live in
unhealthy and potentially life-threatening surroundings for longer than necessary, while the
City weeds out the few who are not entitled to this benefit.154
26.5 SPECIFIC RIGHTS: HEALTH CARE, FOOD, WATER AND SOCIAL SECURITY
(a) Content of the right

Section 27 provides for a ‘right to have access to’ health care, food, water and social
security. The nature of the obligations imposed by s 27 on the state is the same as those
imposed by s 26(1) and (2). Again, the right may not be directly infringed by
retrogressive measures, while reasonable legislative and implementation measures to
achieve progressive realisation of the right are required.
The Constitutional Court’s treatment of the content of the right to health care in the
Treatment Action Campaign case is minimal.155 This is because the court’s general
approach to the positive dimensions of the socio-economic rights is to avoid giving
content to those rights in favour of an adjudication of the reasonableness of the measures
taken by the state to implement the rights.
149
Changing Tides (note 144 above) footnote 22.
150
Blue Moonlight (note 96 above) [40].
151
Blue Moonlight (note 96 above) [100]; Skurweplaas 353 JR v PPC Aggregate Quarries (Pty) Ltd [2011]
ZACC 36 [13]; City of Johannesburg v Changing Tides 74 (Pty) Ltd 2012 (6) SA 294 (SCA) [25].
152
Blue Moonlight (note 96 above) [103]–[104].
153
City of Johannesburg v Changing Tides 74 (Pty) Ltd 2012 (6) SA 294 (SCA).
154
Changing Tides (note 144 above) [53].
155
Note 11 above.
591
The equivalent right in the ICESCR (art 12, the right to the highest attainable
standard of physical and mental health) has been the subject of a recent General
Comment by the Committee on Economic, Social and Cultural Rights.156 The right,
which is not confined to ‘health care’, is of wider scope than that in s 27 of the
Constitution, but a good deal of the Comment is nevertheless of assistance in
interpreting the South African right.
Strictly speaking, there is a difference between social security and social assistance.
The former refers to insurance schemes to which workers and employers contribute for
the purposes of financial old-age pensions, medical and unemployment insurance. The
latter refers to needs-based assistance financed from public funds.157 Section 27(1)(c)
refers to both these aspects; but people have the right of access to social assistance only
if they are unable to support themselves. The entitlement to ‘appropriate’ social
assistance will depend on the facts of each case. Social security and social assistance
benefits depend on such systems being established by the state, or by legislation
requiring private schemes (such as private pension funds) to be established and be
administered as prescribed.158
In Mazibuko, the Constitutional Court recognised the importance of the right to have
access to adequate water. However, it did not provide a quantified content to the right to
water. The Constitutional Court found that the City’s policy was reasonable. It ruled that
it could not be said, on the evidence before the court, that an amount of 6 kilolitres per
month per household was insufficient.159
(b) Emergency medical treatment

Section 27(3) provides that ‘[n]o one may be refused emergency medical treatment’.
This is, like s 26(3), a specific enumeration of one of the negative dimensions of the
right. According to the Constitutional Court, the purpose of the subsection is to ensure
that treatment is given in an emergency, and is not frustrated by bureaucratic
requirements or other formalities. A person who suffers a sudden catastrophe that calls
for immediate medical attention should not be refused ambulance or other emergency
services which are available and should not be turned away from a hospital that is able
156
General Comment 14 ‘The right to the highest attainable standard of health’ UN Doc E/C12/2000/4 (2000).
157
There are currently five forms of non-contributory social assistance schemes in South Africa, regulated by
the Social Assistance Act 13 of 2004. These are (at 2011 values, per month): older-person grants (R1 140 per
month for persons over 60; R1 160 for persons over 75; an additional grant-in-aid of R260 is available for older
persons requiring assistance from another person), disability grants (R1 140 per month) and child-support grants
paid to primary care-givers for children under 18 years of age (R260 per child), foster-care grants to foster
families caring for children under 18 years of age (R740) and care-dependency grants for parents of a disabled
child who requires care at home by another person (R1 140). Information from <www.sassa.gov.za>.
158
For example, the Medical Schemes Act 131 of 1998 regulates private medical aid schemes so as to expand
access to such medical schemes, especially by the elderly and sickly who, in the absence of such legislation, tend
to be excluded from them, and to provide for prescribed benefits as a way of ensuring that members have access
to necessary care and costs are not unfairly shifted onto public hospitals.
159
Mazibuko (note 38 above) [86]–[89]. Where the state has itself quantified the entitlement to free potable
water, the courts are more willing to order that it be provided. In Federation for Sustainable Environment v
Minister of Water Affairs [2012] ZAGPPHC 140, following the interruption of water supply as a result of acid
mine drainage, the North Gauteng High Court ordered a municipality to provide temporary potable water in the
amount provided in the Regulations relating to Compulsory National Standards and Measures to Conserve Water
(GN 509 in GG 22355 of 8 June 2001).
592
to provide the necessary treatment.160 ‘What the section requires is that remedial
treatment that is necessary and available be given immediately to avert that harm’.161
The state’s duty under s 27(3) is ‘not [to] refuse ambulance or other emergency services
which are available’ and not to turn a person ‘away from a hospital which is able to
provide the necessary treatment’.162 This available-and-able qualification makes it clear
that s 27(3) does not create a positive constitutional obligation on the state to ensure that
emergency medical facilities are made available so that no one in an emergency
situation can be turned away. Section 27(3) is therefore a right not to be arbitrarily
excluded from that which already exists.163
The court held that the situation of a person suffering from chronic renal failure and
requiring dialysis two to three times a week to remain alive was not an emergency
calling for immediate remedial treatment. Instead it was an ongoing state of affairs
resulting from an incurable deterioration of the applicant’s renal function. Accordingly,
s 27(3) did not give such a person a right to be admitted to the dialysis programme at a
state hospital.164
The right may be applied horizontally, entailing a duty for private hospitals.165 The
right does not extend to routine medical treatment and it does not guarantee free
services. Emergency treatment may not be refused because of lack of funds, but
payment for treatment may be sought after the treatment has been provided.
Section 35(2)(e) contains a right of detained persons to ‘adequate medical treatment’.
Unlike the s 27 right, this right is not qualified by express reference to ‘progressive
realisation’ and ‘available resources’. The resource qualification was nevertheless read
into the scope of the right by the court in Van Biljon v Minister of Correctional
Services.166 In this case, the applicants were HIV-infected prisoners who applied for a
160
According to the court, the type of situation to which the right would apply was aptly illustrated by the
Indian case of Paschim Banga Khet Mazdoor Samity and Others v State of West Bengal (1996) AIR SC 2426.
One of the claimants had suffered serious head injuries and brain haemorrhage as a result of having fallen off a
train. He was taken to various state hospitals and turned away, either because the hospital did not have the
necessary facilities for treatment, or on the grounds that it did not have room to accommodate him. As a result he
had been obliged to secure the necessary treatment at a private hospital. According to the Constitutional Court’s
reading of the judgment, the claimant could in fact have been accommodated in more than one of the hospitals
that turned him away. According to the court this ‘is precisely the sort of case which would fall within s 27(3). It
is one in which emergency treatment was clearly necessary. The occurrence was sudden, the patient had no
opportunity of making arrangements in advance for the treatment that was required, and there was urgency in
securing the treatment in order to stabilise his condition. The treatment was available but denied.’ Soobramoney
(note 16 above) [18]. Another example of a clear violation of s 27(3) would be apartheid-style denials of
emergency services of the type referred to by the court in [20] fn 10: ‘On occasions seriously injured persons
were refused access to ambulance services or admission to the nearest or best equipped hospital on racial
grounds’.
161
162
Ibid [20] (emphasis added).
163
C Scott & P Alston ‘Adjudicating Constitutional Priorities in a Transnational Context: A Comment on
Soobramoney’s Legacy and Grootboom’s Promise’ (2000) 16 SAJHR 206, 236. There is a more extensive
delineation of the right in the concurring judgment of Sachs J in Soobramoney (note 16 above) [51]: ‘The special
attention given by s 27(3) to non-refusal of emergency medical treatment relates to the particular sense of shock
to our notions of human solidarity occasioned by the turning away from hospital of people battered and bleeding
or of those who fall victim to sudden and unexpected collapse. It provides reassurance to all members of society
that accident and emergency departments will be available to deal with the unforeseeable catastrophes which
could befall any person, anywhere and at any time’.
164
165
See para 3.3(c)(ii) in Chapter 3 above. Section 5 of the National Health Act 61 of 2003 provides that public
and private ‘health care providers’ or ‘health establishments’ may not refuse anyone emergency medical
treatment.
166
Van Biljon v Minister of Correctional Services 1997 (4) SA 441 (C).
593
declaratory order that their right to adequate medical treatment entitled them to the
provision of expensive anti-viral medication. It was common cause that the requested
drugs were the most effective treatment available for HIV. The Minister argued that the
state was only obliged to provide the applicants with the same standard of care as was
provided in state hospitals, where use of the particular drugs was limited. The applicants
would not have qualified for the drugs under the policy in place in the state hospitals.
The court granted the order, holding that in determining what is ‘adequate medical
treatment’, regard must be had to what the state can afford to provide:
Therefore, once it is established that anything less than a particular form of medical
treatment would not be adequate, the prisoner has a constitutional right to that form of
medical treatment and it would be no defence for the prison authorities that they cannot
afford to provide that form of medical treatment. I do not, however, agree with the
proposition that financial conditions or budgetary constraints are irrelevant in the present
context. What is ‘adequate medical treatment’ cannot be determined in vacuo. In
determining what is ‘adequate’, regard must be had to, inter alia, what the State can afford. If
the prison authorities should, therefore, make out a case that as a result of budgetary
constraints they cannot afford a particular form of medical treatment or that the provision of
such medical treatment would place an unwarranted burden on the State, the Court may very
well decide that the less effective medical treatment which is affordable to the State must in
the circumstances be accepted as ‘sufficient’ or ‘adequate medical treatment’.167
It was pointed out that the Constitution did not require ‘optimal medical treatment’,
merely ‘adequate’ treatment. In the present case, the state had not made out a case that,
as a result of budgetary constraints, it could not afford the treatment requested by the
prisoners.
26.6 REMEDIES FOR THE INFRINGEMENT OF SOCIO-ECONOMIC RIGHTS

The appropriate remedy for the infringement of socio-economic rights is, in most cases,
a declaration of invalidity of the infringing law or conduct.168 Where existing access to a
socio-economic right is threatened or has been removed, an interdict may be granted to
prohibit threatened conduct or to restore access. For example, an order may be made to
restore occupiers to their homes following eviction or to reconnect a water supply.
In other cases, more innovative remedies may have to be developed to vindicate the
Constitution. So far, two remedies have been employed by the courts following a breach
of the positive aspects of the socio-economic rights: the structural interdict (which
directs a violator to take steps to rectify a violation of rights under the court’s
supervision)169 and declaratory relief.170
August v Electoral Commission171 provides a good example of the use of the former
remedy, though in a case dealing with the right to vote rather than socio-economic
rights. The Constitutional Court’s order followed a holding that the Electoral
Commission had violated prisoners’ rights to vote by failing to take steps to allow them
167
Ibid [49].
168
Abahlali Basemjondolo Movement SA v Premier of the Province of KwaZulu-Natal 2010 (2) BCLR 99
(CC) (declaring provincial legislation concerned with slums inconsistent with the Constitution and in offending
against s 26(2)); Jaftha (note 24 above) [67] (infringement of the right to housing in Magistrates’ Courts Act
remedied by declaration of invalidity and reading in.
169
See, further, para 8.6(c)(iii) in Chapter 8 above.
170
See, further, para 8.6(b) in Chapter 8 above.
171
Note 20 above.
594
to register as voters on the national common voters’ roll. The court ordered the
Commission to make arrangements for them to register, and, once registered, to vote in
the election. According to the court, the determination of what practical arrangements
should be made to comply with the order was a matter pre-eminently for the
Commission. But because it was important that there should be certainty as to what
these arrangements would be, the Commission was required to furnish an affidavit
setting out the manner in which the order would be complied with, and to serve a copy
of that affidavit on the attorneys for the applicants and on the Registrar of the
Constitutional Court. In the light of the urgency of the matter, and the timetable for the
election set out by the Commission, a period of two weeks was given for it to prepare the
affidavit.172
A similar order was given in Strydom v Minister of Correctional Services.173 Finding
that the state of the electricity supply in Johannesburg Maximum Security Prison was
inconsistent with the right to ‘conditions of detention that are consistent with human
dignity’, the High Court ordered prison authorities to report on affidavit to it within a
month of the order, setting out a timetable for the upgrading of the electrical system. The
court held that this form of interdict was appropriate where ‘there is a refusal by the
respondent to commit itself to a date by which it will perform an enforceable
undertaking’.174
The High Court’s order in the Grootboom case175 was one of the first cases to employ
a structural interdict to enforce a positive obligation. The court found that the conditions
under which the squatters were living was a violation of the right of children to shelter in
terms of s 28(1)(c). According to the court, s 38 and s 172 of the Constitution permit the
issuing of ‘an order which identifies the violation of a constitutional right and then
defines the reform that must be implemented while affording the responsible state
agency the opportunity to choose the means of compliance’.176 The High Court granted
an order declaring that the children of the applicants were entitled to be provided with
shelter in terms of s 28 and that their parents were entitled to be accommodated with
them, directing the state to provide such shelter and ordering the state to report to court
on the implementation of the order. The parties were granted leave to file further papers
and the matter was postponed for hearing following such report and affidavits.177
On appeal, the Constitutional Court held that the High Court’s interpretation of
s 28(1)(c) was incorrect. The subsection did not impose an obligation on the state to
provide shelter to those of the respondents who were children and, through them, their
parents.178 The right to housing, on the other hand, which had been infringed by the
state, did not give the applicants a right to claim housing immediately on demand. The
remedy for the infringement could not, moreover, put the applicants into a preferential
position vis-à-vis similarly situated people who were not party to the litigation.
Although the conditions in which the respondents lived in Wallacedene were admittedly
intolerable and although it is difficult to level any criticism against them for leaving the
172
Ibid [42].
173
Strydom v Minister of Correctional Services 1999 (3) BCLR 342 (W).
174
Ibid 356A–B.
175
Grootboom v Oostenberg Municipality 2000 (3) BCLR 277 (C).
176
Ibid 292H–I.
177
Ibid 293–4.
178
595
Wallacedene shack settlement, it is a painful reality that their circumstances were no worse
than those of thousands of other people, including young children, who remained at
Wallacedene. It cannot be said, on the evidence before us, that the respondents moved out of
the Wallacedene settlement and occupied the land earmarked for low-cost housing
development as a deliberate strategy to gain preference in the allocation of housing
resources over thousands of other people who remained in intolerable conditions and who
were also in urgent need of housing relief. It must be borne in mind however, that the effect
of any order that constitutes a special dispensation for the respondents on account of their
extraordinary circumstances is to accord that preference.179
In the circumstances, the Constitutional Court held, it was ‘necessary and appropriate’
to award a declaratory order. The court’s declaration sets out the shortcomings in the
state’s housing policy, declares that the state must take steps to remedy these
shortcomings, and suggests a means of achieving the result.
It is declared that:
(a) Section 26(2) of the Constitution requires the state to devise and implement within its
available resources a comprehensive and coordinated programme progressively to
realise the right of access to adequate housing.
(b) The programme must include reasonable measures such as, but not necessarily limited
to, those contemplated in the Accelerated Managed Land Settlement Programme, to
provide relief for people who have no access to land, no roof over their heads, and who
are living in intolerable conditions or crisis situations.
(c) As at the date of the launch of this application, the state housing programme in the area
of the Cape Metropolitan Council fell short of compliance with the requirements in
paragraph (b), in that it failed to make reasonable provision within its available
resources for people in the Cape Metropolitan area with no access to land, no roof over
their heads, and who were living in intolerable conditions or crisis situations.180
In addition, the court appointed the Human Rights Commission to monitor the
implementation of this order.181
In the Treatment Action Campaign case the Constitutional Court outlined its
remedial options in the area of socio-economic rights:
Where a breach of any right has taken place, including a socio-economic right, a Court is
under a duty to ensure that effective relief is granted. The nature of the right infringed and
the nature of the infringement will provide guidance as to the appropriate relief in a
particular case. Where necessary this may include both the issuing of a mandamus and the
exercise of supervisory jurisdiction.182
Ultimately however, the court did not grant a structural interdict, on the basis that there
was no reason to believe that the government would not respect the court’s order.183
Instead the court awarded declaratory relief, combined with a number of injunctions
179
Ibid [81]. But see Blue Moonlight (note 96 above) [93], in which Van der Westhuizen J rejected arguments
that the court would be encouraging ‘queue jumping’. He noted that the occupiers did not claim permanent
housing ahead of anyone else in a queue and that they would have to wait in the queue or join it in order to secure
permanent housing.
180
Ibid [99].
181
Grootboom (note 6 above) [97]: ‘the Commission will monitor and, if necessary, report in terms of these [s
184(2)(a)] powers on the efforts made by the state to comply with its s 26 obligations in accordance with this
judgment’.
182
183
Ibid [129].
596
removing existing restrictions on the availability of the drug nevirapine in public

hospitals for preventative treatment of HIV infection.
Since the Treatment Action Campaign, however, the courts—including the
Constitutional Court—have shown an increasing willingness to employ structural
interdicts and other flexible remedies to enforce socio-economic rights.184
184
See, for example, Joe Slovo (note 117 above) (an order requiring engagement and reporting, including on
steps taken to implement the eviction and the allocation of permanent housing); Olivia Road (note 141 above) (an
order requiring the municipality and occupiers to engage meaningfully and file affidavits reporting on the results
of the engagement); Centre for Child Law v Minister of Basic Education [2012] 4 All SA 35 (ECG) (a structural
interdict concerning the appointment of teachers to vacant positions in the Eastern Cape); Centre for Child Law v
MEC for Education, Gauteng 2008 (1) SA 223 (T) (the duty of the state to provide care and social services to
children removed from the family environment in relation to a certain school of industry).
597
Chapter Twenty-seven
Children
by Ann Skelton*
27.1 Introduction to section 28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 599

27.2 Children’s autonomy and children’s protection . . . . . . . . . . . . . . . . . . . . . . . 601
27.3 The right to a name and a nationality from birth . . . . . . . . . . . . . . . . . . . . . 603
(a) A name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 603
(b) Nationality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 604
27.4 The right to family care or parental care. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 604
27.5 The right to appropriate alternative care when removed from the
family
environment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 607
(a) Adoptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 607
(b) Foster care. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 608
(c) Child and youth care centres . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 609
27.6 The right to basic nutrition, shelter, basic health care and social
services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 610
(a) Socio-economic rights vis-à-vis children’s basic rights to
nutrition, shelter, health care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 610
(b) The socio-economic rights of children separated from their
parents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 612
27.7 The right not to be subjected to neglect, abuse or degradation . . . . . . . 612
27.8 The right to be protected from exploitative labour practices. . . . . . . . . . 614
27.9 The right not to be detained except as a measure of last resort. . . . . . . 615
27.10 The right to legal representation in civil proceedings . . . . . . . . . . . . . . . . . 617
27.11 The right not to be used in armed conflict, and to be protected in
times of armed conflict. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 619
27.12 Section 28(2) ‘best interests’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 619
(a) A principle and a right . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 619
(b) Limitation of rights and the paramountcy principle . . . . . . . . . . . . . . 621
Children
28.(1) Every child has the right—
(a) to a name and a nationality from birth;
(b) to family care or parental care, or to appropriate alternative care
when removed from the family environment;
(c) to basic nutrition, shelter, basic health care services and social
services;
* Director: Centre for Child Law, University of Pretoria.

598
Children 27.1
(d) to be protected from maltreatment, neglect, abuse or degradation;

(e) to be protected from exploitative labour practices;
(f) not to be required or permitted to perform work or provide services
that—
(i) are inappropriate for a person of that child’s age; or
(ii) place at risk the child’s well-being, education, physical or
mental health or spiritual, moral or social development;
(g) not to be detained except as a measure of last resort, in which
case, in addition to the rights a child enjoys under ss 12 and 35,
the child may be detained only for the shortest appropriate period
of time, and has the right to be—
(i) kept separately from detained persons over the age of 18 years;
and
(ii) treated in a manner, and kept in conditions, that take account of
the child’s age;
(h) to have a legal practitioner assigned to the child by the state, and
at state expense, in civil proceedings affecting the child, if
substantial injustice would otherwise result; and
(i) not to be used directly in armed conflict, and to be protected in
times of armed conflict.
(2) A child’s best interests are of paramount importance in every
matter concerning the child.
(3) In this section ‘child’ means a person under the age of 18 years.
27.1 INTRODUCTION TO SECTION 28

Section 28 sets out a range of rights that provide protection for children that is additional
to the protection they are given by the remainder of the Bill of Rights. Apart from a few
restrictions due to the limited scope of certain rights (the right to vote and the right to
stand for public office is restricted to ‘every adult citizen’), every child enjoys the same
protection through the Bill of Rights as does his or her adult counterpart.1
The Constitutional Court has also applied other constitutional rights to children, such
as the right to make choices regarding reproduction, to reproductive health care and to
dignity and privacy,2 the right not to be discriminated against on the grounds of
religion,3 on the grounds of sex or birth,4 or on the grounds of their parents’ nationality,5
and their right of access to courts.6
1
Bhe v Magistrate, Khayelitsha 2005 (1) SA 580 (CC) [52].
2
Christian Lawyers’ Association of South Africa v Minister of Health 2005 (1) SA 509 (T). The court also
dealt with children’s privacy and dignity in Johncom Media Investments v M 2009 (4) SA 7 (CC).
3
MEC for Education v Pillay 2008 (1) SA 474 (CC).
4
Bhe (note 1 above).
5
Khosa v Minister of Social Development; Mahaule v Minister of Social Development 2004 (6) SA 505 (CC).
6
C v Department of Health and Social Development, Gauteng, 2012 (2) SA 208 (CC).
599
In addition, children’s rights under s 28 are augmented by certain other rights in the
Bill of Rights. Section 28(1)(c), for instance, grants children the right to basic nutrition,
shelter, health care and social services. At the same time children also enjoy the general
socio-economic rights to housing, health care, nutrition and social security under ss 26
and 27. Therefore their rights under s 28(1)(c) are supplemented by their general
socio-economic rights. Section 28(1)(b) gives them a right to family and parental care.
Section 28(1)(c) therefore places a duty on the state to ensure that a child is provided
with these basic requirements and to support the family of the child with the means to
meet those requirements, if the child is living with the family. In addition to duties
placed on the state, s 8, the application clause, provides that the rights in the Bill of
Rights will bind natural persons should the nature of the right permit. This indicates that
certain of the rights in s 28 will have direct horizontal application,7 placing a
constitutional duty on the parents of the child to provide for a child’s basic needs and not
to abuse, exploit or require the child to perform unsuitable or unhealthy work. Section
29 confers the right to a basic education on ‘everyone’, but it is clear that children will
be the major beneficiaries of this particular right.8
To give effect to the duties imposed by s 28 the state has passed new legislation
setting out clearly the rights of children and the responsibilities and rights of parents, the
state and other duty bearers in relation to those rights.9 These laws largely reflect the
Constitution, and international and regional instruments which South Africa has
ratified.10 However, the Constitutional Court has subsequently found that some of these
post-constitutional statutes have failed to reflect the requirements of s 28, or other rights
in the Bill of Rights pertaining to children.11 The court has stressed the fact that s 28
7
In Governing Body of Juma Musjid Primary School v Essay NO 2011 (8) BCLR 761 (CC), the Constitutional
Court found that the Trust that owned the private property on which the school stood had a negative duty not to
interfere with children’s right to education.
8
Ibid. Where the Constitutional Court linked children’s best interests rights with their right to a basic
education—a right which the court found to be immediately realisable, subject only to limitation by a law of
general application in terms of s 36 of the Constitution. See also Head of Department, Mpumalanga Department
of Education v Hoërskool Ermelo 2010 (2) SA 415 (CC).
9
The primary laws relating to children that have been passed since 1994 are the South African Schools Act 84
of 1996; the Children’s Act 38 of 2005; the Criminal Law (Sexual Offences and Related Matters) Amendment Act
32 of 2007; and the Child Justice Act 75 of 2008.
10
South Africa ratified the Convention on the Rights of the Child in 1995, and the African Charter on the
Rights and Welfare of the Child in 2000. The Hague Convention on International Child Abduction and the Hague
Convention on Inter-Country Adoption have both been acceded to and were domesticated by the Children’s Act.
South African courts have on many occasions relied on these instruments and other international documents such
as General Comments of the Committee on the Rights of the Child. For a discussion of the case law see A Skelton
‘The Development of a Fledgling Child Rights Jurisprudence in Eastern and Southern Africa based on
International and Regional Instruments’ (2009) 9(2) AHRLJ 482; R Ngidi ‘The Role of International Law in the
Development of Children’s Rights in South Africa: a Children’s Rights Litigator’s Perspective’ in M Killander
(ed) International Law and Domestic Human Rights Litigation in Africa (2010) 173–191.
11
For example, in Centre for Child Law v Minister of Justice and Constitutional Development 2009 (6) SA
632 (CC) the court found that s 51 of the Criminal Law Amendment Act 105 of 1997 infringed children’s rights
to detention as a measure of last resort and for the shortest appropriate period of time, as guaranteed by s 28(1)(g)
of the Constitution. See also the Case of (note 6 above) which declared ss 151 and 152 of the Children’s Act to be
unconstitutional because they failed to provide for the automatic review of a decision to remove children from
their parents, thus infringing rights to family care or parental care, best interests of the child and the right of
access to courts.
600
Children 27.1–27.2
must be seen as responding in an ‘expansive way’12 to South Africa’s international

obligations as a state party to the United Nations Convention on the Rights of the Child
(UNCRC), and that the UNCRC has become the international standard against which to
measure legislation and policies.13
27.2 CHILDREN’S AUTONOMY AND CHILDREN’S PROTECTION

An interesting debate in children’s rights is the extent to which children have the right to
‘individual self-determination’, that is, to choose their own lifestyles, religions,
relationships and so on. The issue is difficult to resolve since it requires a balance to be
struck between the interests of children, parents and the state. In such disputes, children
must, like everyone else, derive their claims to personal autonomy and personal
self-fulfilment from the rights to privacy, and from the rights to freedom of religion,
speech and, perhaps, association. Limitation of these rights becomes more difficult to
justify as the child grows older, since the responsibilities of parents and the state towards
a child are linked to the child’s age. Parents’ rights over their children are derived from
their parental responsibilities and therefore diminish as the child gets older.14
When interpreting children’s constitutional rights a balance has to be struck between
a child’s need for autonomy and his or her need for protection.15 Autonomy develops
gradually through natural maturation, parental socialisation and guidance, and this
means that parents have a degree of latitude in deciding how to raise their children.
However, the explicit protection of children’s constitutional rights means that children
cannot be regarded merely as extensions of their parents.16 As Sachs J has explained,
‘every child has his or her own dignity. If a child is to be constitutionally imagined as an
individual with a distinctive personality, and not merely as a miniature adult waiting to
reach full size, he or she cannot be treated as a mere extension of his or her parents,
umbilically destined to sink or swim with them’.17
The state will generally only interfere in the decisions parents make about their
children when it is necessary to protect the children and,18 in some cases, to secure more
autonomy for older children. For example, the state has a legitimate interest in ensuring
that parents do not use their children to further their own political or religious
convictions. On the other hand, parents are generally permitted to direct the secular or
religious guidance of young children. Parents’ rights to freedom of religion extend to the
12
Sonderup v Tondelli 2001 (1) SA 1171 (CC) [29].
13
S v M 2008 (3) SA 232 (CC) [16].
14
As the House of Lords put it in Gillick v West Norfolk [1986] 1 AC (HL) 112 at 184; ‘parental rights are
derived from parental duty and exist only so long as they are needed for the protection of the person and property
of the child’. S Human ‘The Theory of Children’s Rights’ in T Boezaart (ed) Child Law in South Africa (2009)
243–249.
15
See A Friedman, A Pantazis & A Skelton ‘Children’s Rights’ in S Woolman et al (eds) Constitutional Law of
South Africa 2 ed (2002) 47–2: ‘Childhood is a process of development from a lack of capacity to an attainment
of capacity. This is a gradual process, and a balanced theory of children’s rights should reflect a combination of
rights to protection and right to self determination.’
16
Human (note 14 above) 243–249.
17
S v M (note 13 above) [18].
18
See C (note 6 above), where the majority of the court found that the provisions in the Children’s Act
permitting the removal of children who were considered to be victims of abuse or neglect to be constitutional but
for the fact that the Act lacked a specific provision for automatic review of the removal decision. A separate but
concurring judgment by Skweyiya J (Froneman J concurring) found that the removal of children is per se
unconstitutional, but may be reasonable or justifiable in certain situations, though the lack of automatic review
made it impossible to assess this.
601
secular or religious instruction of their children. However, as children grow older and
their own rights of religious freedom mature, parents’ rights diminish.19
The Constitutional Court’s approach to children’s growing autonomy proved
disappointing in Le Roux v Dey.20 This was the first case in which child defendants were
sued for defamation, arising from a cartoon-like picture that they made of their school
principal and his deputy. The majority found the image constituted defamation and
ordered the boys to pay damages and to apologise. However, the minority judgment of
Cameron J and Froneman J found that the infringement related to dignity, whilst the
separate dissents of Yacoob J and Skweyiya J offer a more nuanced recognition of the
teenagers’ clumsy attempts at humour, and found no infringement of the plaintiffs’
rights.
The rights that children have to be consulted, and to express their opinions and
preferences in decisions that affect them flow from their evolving rights to autonomy.
The Constitutional Court has on two occasions expressed an interest in the participation
of children. In Christian Education South Africa v Minister of Education,21 which dealt
with the constitutionality of corporal punishment in schools, the court expressed
disappointment that the court a quo had decided not to appoint a curator ad litem for the
children at the centre of the dispute. The court was of the view that the dialogue would
have been enriched by enabling the voices of the children to be heard. In MEC for
Education v Pillay,22 which dealt with the right to exercise religious freedom in the
context of school rules—in this matter, to wear a nose stud—the court would have
preferred to hear directly from Sunali Pillay (a girl in matric at that time), and not only
from her mother. The court concluded that ‘the need for the child’s voice to be heard is
perhaps even more acute when it concerns children of Sunali’s age who should
increasingly be taking responsibility for their own actions and beliefs.’23
The provisions in s 28 apply to people younger than 18 years. At the time when the
Constitution came into operation this conflicted with the age at which people attained
majority under the common law. Under the common law, minors reach the age of
majority at the age of 21. This meant that young people who were older than 18, but had
not yet reached the age of 21, were not specifically protected as children by the
Constitution, yet they lacked full legal capacity. This anomaly has now been rectified by
the Children’s Act which has reduced the age of majority to 18 years.24
A more controversial question relates not to when childhood ends, but to when it
begins. Section 28(3) refers to ‘a person’; thus it is important to determine when
‘personhood’ begins. It was argued in the High Court matter of Christian Lawyers
19
See Allsop v McCann [2000] 3 All SA 475 (C) and the discussion of the constitutional implications of this
case by E Bonthuys & M Pieterse ‘Divorced Parents and the Religious Instruction of their Children’ (2001) 118
SALJ 216, 222–224.
20
Le Roux v Dey 2011 (3) SA 274 (CC).
21
Christian Education South Africa v Minister of Education 2000 (4) SA 757 (CC) 787.
22
See note 3 above.
23
Pillay (note 3 above) 494E–G. Sunali was below 16 years old when her mother had a stud inserted in her
nose. But her school, which is one of the applicants in this matter, refused permission to allow her to wear a nose
stud in terms of the school’s code of conduct. By the time the matter reached the Constitutional Court Sunali had
matriculated and had left the school. Although the matter was moot the court decided to rule on the matter.
24
Section 17 of the Children’s Act 38 of 2005 came into operation on 1 July 2007. See further T Boezaart
‘Some Comments on the Interpretation and Analysis of Section 17 of the Children’s Act 38 of 2005’ 2008 De
Jure 245.
602
Association of South Africa v Minister of Health25 that the Choice on Termination of

Pregnancy Act26 infringed the right to life of the foetus. In finding that the right to life
did not extend to the unborn child, the High Court pointed to the text of s 28(3), saying
that ‘had the drafters of the Constitution wished to protect the foetus in the bill of rights
at all, one would have expected this to be done in s 28, which specifically protects the
rights of the child’.27 In S v Mshumpa28 the victim was an unborn baby, who was shot (in
the 38th week of pregnancy) through her mother’s abdomen, resulting in a stillbirth. The
prosecution argued that the common law should be developed so that the definition of
murder would include the killing of an unborn child, as this would reflect the medical
reality and the convictions of the community. The High Court found that no rights are
conferred on an unborn child and that therefore the shooting of the foetus did not
constitute a separate crime of murder. The court furthermore observed that the
common-law principle of being ‘born alive’ has never been discarded or developed
either nationally or in foreign jurisdictions. The court held firm to the principle that a
person only becomes a legal subject after birth.29
27.3 THE RIGHT TO A NAME AND A NATIONALITY FROM BIRTH
(a) A name
The constitutional protection of a child’s right to a name and nationality from birth, and
the right to have his or her name and other basic family information registered, comprise
a child’s right to a legal identity. The right to an identity has important psychological
and emotional content because a name connects a child to his or her family.30
The right to a name starts with birth and includes the right to be registered by the state
in a birth register immediately after birth.31 Inclusion in the population register provides
access to social grants, education and health and social services and facilitates the
child’s subsequent participation in the civil and political community by enabling her to
apply for an identity document and to vote.32 In Hadebe v Minister of Home Affairs33 the
mother of a child turned to the High Court following failure by the government to
amend the details of her child’s birth certificate. The court found that s 28(1)(a) imposes
a duty on the state, and that the government officials should have ensured that the correct
particulars were entered onto the register of births and deaths.
25
Christian Lawyers Association of South Africa v Minister of Health 1998 (4) SA 1113 (T).
26
Act 72 of 1996.
27
Christian Lawyers Association of South Africa (note 25 above). See, however, Friedman et al (note 15
above) at 47–47 who argue that a literal reading does not necessarily exclude application to the foetus, and that
the courts would be better served by an evaluation of the real values and interests at stake. See further D
Meyerson ‘Abortion: the Constitutional Issues’ (1999) SALJ 50; T Naude ‘The Value of Life: a Note on Christian
Lawyers Association of South Africa v Minister of Health’ 1999 SAJHR 541; M O’Sullivan ‘Reproductive
Rights’ in Woolman et al (note 15 above) 37–18 to 37–21.
28
2008 (1) SACR 126 (E).
29
See further H Kruuse ‘Fetal ‘‘Rights’’? The Need for a Unified Approach to the Fetus in the Context of
Feticide’ 2009 THRHR 126; C Pickles ‘The Introduction of a Statutory Crime to Address Third-Party Foetal
Violence’ (2011) 74(4) THRHR 546.
30
T Mosikatsana ‘Children’s Rights and Family Autonomy in the South African Context: a Comment on
Children’s Rights under the Final Constitution’ (1988) 3 Michigan Journal of Race & Law 370.
31
Legislative effect is given to this right by s 9(6) of the Births and Deaths Registration Act 51 of 1992.
32
B Bekink & D Brand ‘Constitutional Protection of Children’ in CJ Davel (ed) Introduction to Child Law in
South Africa (2000) 169, 181.
33
[2007] JOL 18906 (D).
603
The constitutional right to have a name at birth has important implications for
adopted children’s searches for their parents’ identities. Section 242(2)(b) of the
Children’s Act 38 of 2005 provides that an adopted child’s surname at birth is to be
changed to that of the adoptive parent or parents, unless the court orders otherwise. The
adoptive parents must then apply to record the adoption and any change of surname to
be recorded in the births register.34 All adoptions that take place in South Africa are also
entered into the adoption register. An adopted child has access to this after he or she
turns 18 years, and the adoptive parents and biological parents also have access from
that date.35
(b) Nationality
The right to nationality is a traditional right for children, enunciated in several
international instruments.36 The importance of nationality is to prevent stateless-
ness—by denying a person the rights to nationality it is possible to deny many other
rights such as the right to vote and to live in a particular country. The homeland policy
during the apartheid years was a way of using nationality to limit peoples’ rights. People
associated with the ‘independent’ TBVC states (Transkei, Bophuthatswana, Venda and
Ciskei) ceased to be South African citizens when independence was conferred on these
territories. As a result they enjoyed no civil and political rights in South Africa, nor were
they entitled to South African passports or diplomatic protection.37 The Constitution
seeks to prevent a repeat of this exercise in de-nationalisation by attaching the right to
nationality to the fact of a person’s birth. Children are also citizens and are therefore also
protected by the citizenship rights in ss 20 and 21 to enter, remain in, leave and reside in
the Republic, and the right not to be deprived of citizenship.
27.4 THE RIGHT TO FAMILY CARE OR PARENTAL CARE

Although the Constitution contains no express right to family life, the Constitutional
Court has held that this right is indirectly protected via the right to dignity.38 The right to
family life is further protected by s 28(1)(b).39 The section places a duty on the parents
and family of children to provide care and, by implication, also places a duty on the state
to support the institution of the family. The correlative of the duty is the child’s right to
parental care. Parents cannot derive any rights from the section.
Section 28(1)(b) inhibits legislation or administrative action which has the effect of
separating children from parents. For example, immigration legislation and policy
34
Section 254.
35
Section 248.
36
Notably the Convention on the Rights of the Child, art 7 provides: (1) The child shall be registered
immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far
as possible, the right to know and be cared for by his or her parents; (2) States Parties shall ensure the
implementation of these rights in accordance with their national law and their obligations under the relevant
international instruments in this field, in particular where the child would otherwise be stateless.
37
J Dugard International Law: A South African Perspective (1994) 174–175.
38
Ex parte Chairperson of the Constitutional Assembly: in Re Certification of the Constitution of the Republic
of South Africa, 1996 1996 (4) SA 744 (CC) [96]–[102]. See further Dawood v Minister of Home Affairs 2000 (3)
SA 936 (CC) [36]; Booysen v Minister of Home Affairs 2001 (4) SA 485 (CC) [10].
39
In Du Toit v Minister of Welfare and Population Development 2001 (12) BCLR 125 (T) [18] the
Constitutional Court held that ‘[i]t is clear from s 28(1)(b) that the Constitution recognises that family life is
important to the well-being of children’; and in S v M (note 13 above) [38], the court emphasised ‘the importance
of maintaining the integrity of family care’.
604
Children 27.4
should promote family life by preventing the separation of parents from children,40 and
courts considering the imprisonment of a primary caregiver must consider the fact that
the child will be deprived of parental care.41 At the same time, the sub-section envisages
that the state may in certain circumstances remove children from the care of parents
when it is in the interests of the child to do so, for example, to prevent abuse or neglect.
However, in C v Department of Health and Social Development, Gauteng42 the
Constitutional Court found that the provisions allowing removal were unconstitutional
due to the absence of a procedure for automatic review of the decision to remove the
child. In a separate judgment that concurred with the majority Skweyiya J pointed out
that although s 28(2) envisages the possible removal of a child through the words ‘to
appropriate alternative care when removed from the family’, the right to alternative care
is a secondary right, with the preferential emphasis on family or parental care. Where a
child has been removed from the family environment a duty is placed on the state to
ensure that the environment in which the child is placed provides a similar standard of
care to that which the child would have had in the family environment. In Centre for
Child Law v MEC for Education, Gauteng43 the court found that to remove children
from their homes and then place them in poor conditions is to ‘betray them and we teach
them that neither the law nor state institutions can be trusted to protect them.’44
Many South African children do not live with both or either of their parents.45 The
right to ‘family care’ includes the right to be cared for by the extended family. Although
the South African common law and statutes have tended to recognise only the nuclear
family,46 courts should realise that South African families take various different forms
and should be careful not to favour one family form over others.47 In SS v Presiding
Offıcer in the Children’s Court, Krugersdorp,48 the court relied on the common law to
find that grandparents looking after their children have a legal duty of support whilst
aunts and uncles do not. This means that a child who is in need of care and protection is
more likely to be placed in foster care with an aunt or uncle. However, it is unlikely that
this differentiation finds resonance with a constitutional vision of family. The first draft
of the Children’s Bill separated kinship care from foster care, but the parliamentary
40
Patel v Minister of Home Affairs 2000 (2) SA 343 (D). See Chapter 21 above for a discussion of the impact
of the right to family life on immigration laws.
41
S v M (note 13 above).
42
C v Department of Health and Social Development, Gauteng 2012 (2) SA 208 (CC).
43
Centre for Child Law v MEC for Education, Gauteng 2008 (1) SA 223 (T).
44
Ibid 229B–C.
45
A General Household Survey in 2009 counted approximately 18,6 million children under the age of 18 years
living in South Africa, which amounts to 38 per cent of the total population. Further analysis of the data (K Hall
and P Proudlock ‘Orphaning and the Foster Child Grant: A Return to the ‘‘Care or Cash’’ Debate’ (2011) 29
(5&6) Child and Youth Care Worker 23) has indicated that approximately 6 million children live with both
parents, 6,9 million live with the mother but not their father; and 5,6 million live with family members other than
their biological parents.
46
See Bethell v Bland 1996 (2) SA 194 (W); Townsend-Turner v Morrow [2004] 1 All SA 235 (C); Kleingeld
v Heunis 2007 (5) SA 559 (T) which all excluded contact for grandparents where the biological parents of the
child were resistant and there were high levels of conflict between the adults. See however, Heuer v
Bruce-Alexander 2012 (6) SA 41 (ECG) which may herald a new trend. The case was brought in terms of s 23 of
the Children’s Act. Smith J found ([14]) that the Act recognises that a child is a social being and that members of
his or her extended family play an important part in the child’s social and psychological development.
47
Dawood v Minister of Home Affairs 2000 (3) SA 936 (CC) [31], [33].
48
SS v Presiding Offıcer in the Children’s Court, Krugersdorp 2012 (6) SA 45 (GSJ).
605
process resulted in a blending of these, with only foster care surviving. The Constitution
clearly separates family care from alternative care.49
The right to family care is framed in child-centred terms, but it incorporates an idea
that has been fundamental to indigenous law. The extended family has always received
recognition under indigenous law. The inclusion of the extended family under the right
to ‘family care’ in s 28(1)(b) of the Constitution provided a positive basis for the
Children’s Act to broaden the scope of persons who may have an interest in obtaining
parental responsibilities and rights.50
The right to parental care includes the child’s right to be cared for by both natural
parents. The recognition of unmarried fathers’ rights has improved through the
introduction of s 21 of the Children’s Act which grants unmarried fathers automatic
parental responsibilities and rights in certain situations. The move towards this was
largely initiated by Fraser v Children’s Court, Pretoria North,51 in which the
Constitutional Court noted that discrimination against fathers should not be permitted,
whilst at the same time recognising that the burden of parenting falls unequally on
mothers, and that legal reform should be structured to reflect that reality.52 Section 21
does this by giving automatic rights but only where the father either lived with the
mother in a permanent life partnership at the time of the child’s birth, or alternatively
where he has shown commitment through acknowledging paternity, contributing to the
child’s upbringing and maintenance, or has in good faith attempted to do so.53 Where
the unmarried father does not qualify for automatic rights or is unable to exercise such
rights, he may approach the courts in terms of ss 23 or 24 of the Children’s Act.54
Other forms of family are also considered. In CM v NG55 a woman successfully
applied for contact with and guardianship of a child who had been born during a
permanent life partnership between the applicant and the biological mother, through
artificial insemination using donor sperm. The applicant was not biologically related to
the child. Had she been married to the birth mother she would have enjoyed automatic
parental responsibilities due to s 40 of the Children’s Act. However, as the couple were
not married she instead invoked ss 23 and 24 of the Children’s Act which allows ‘any
person having an interest in the care, wellbeing or development of a child’ to apply for
contact or care and guardianship.
A further issue in relation to children’s rights to parental care is whether these rights
adhere to children or their parents. The Children’s Act has replaced the old terms of
‘custody’ and ‘access’ with ‘care’ and ‘contact’, and these terms encompass the idea that
duty of care is a task to be shared by both parents, though this does not equate to the old
49
For a more detailed explanation see A Skelton ‘Kinship Care and Cash Grants: In Search of Sustainable
Solutions for Children Living with Members of their Extended Families in South Africa’ 2012 International
Survey of Family Law 333–345.
50
See further A Skelton & M Carnelley (eds) Family Law in South Africa (2010) 241.
51
Fraser v Children’s Court, Pretoria North 1997 (2) SA 261 (CC).
52
Ibid [25] and [44]; See also President of the Republic of South Africa v Hugo 1997 (4) SA 1 (CC) [37],
[80]–[86], [110]–[112].
53
For a detailed description of the history and operation of this section see A Skelton ‘Parental
Responsibilities and Rights’ in T Boezaart (ed) Child Law in South Africa (2009) 70–79.
54
S v J 2011 (3) SA 1226 (SCA).
55
CM v NG 2012 (4) SA 452 (C).
606
idea of ‘joint custody’. It means that both parents should, as far as possible be involved
in the upbringing of the child, provided that it is in the best interests of the child.56
27.5 THE RIGHT TO APPROPRIATE ALTERNATIVE CARE WHEN REMOVED FROM THE
FAMILY ENVIRONMENT
In terms of s 28(1)(b) the right to alternative care includes the right to adoptive or foster
care, and the right to be cared for by the state where the child concerned is in need of
care and protection.
However, the Children’s Act intends that the mere fact that a child is found to be in
need of care should not necessarily mean that she should be removed from her family.
Instead, mechanisms which aim to maintain the family unit and to support the child
within the family should be implemented. Removal should only happen where it is
appropriate.57
(a) Adoptions
Prior to the Children’s Act coming into operation58 adoption was regulated by the Child
Care Act 74 of 1983. A number of the provisions of that Act dealing with adoption came
under constitutional scrutiny following enactment of the Bill of Rights. The first
challenge to the adoption law was Fraser v Naude.59 Section 18(4)(d) of the Child Care
Act did not require an unmarried father to consent to the adoption of his child. The court
declared this sub-section to be unconstitutional because it discriminated unfairly against
unmarried fathers.
Section 18(4)(f) of the Child Care Act prohibited intercountry adoptions in that it
provided exclusively for intracountry (domestic) adoptions. In Minister of Welfare and
Population Development v Fitzpatrick60 the Constitutional Court dealt with a challenge
to the constitutionality of this provision. The Fitzpatricks, both British citizens, wanted
to adopt a child born of a South African mother. They did not wish to become South
African citizens and their intention was to leave South Africa within a year or two after
the adoption and move to the United States. Section 18(4)(f) of the Child Care Act
presented an obstacle in that it prohibited non-citizens and non-residents from adopting
a child born of a person who is a South African citizen. The Fitzpatricks approached the
High Court for an order declaring the sub-section unconstitutional in that it
discriminated against non-South African prospective adoptive parents on the basis of
their nationality.61 The High Court declared s 18(4)(f) unconstitutional and invalid to the
extent that it constituted a complete prohibition on the adoption of a child born of a
56
See Skelton & Carnelley (note 50 above) at 263–264 for an explanation of the co-exercise of parental
responsibilities and rights under the Children’s Act. See also B v M 2006 (9) BCLR 1034 (W); J v J 2008 (6) SA
30 (CC), but cf Jooste v Botha 2000 (2) SA 199 (T) 206B–207D which dealt with a damages claim regarding a
child whose unmarried father declined to have contact with him, which held that the word ‘parent’ in s 28(1)(b)
refers to the custodian parent. It is submitted that this narrow approach has been overtaken by the Children’s Act
38 of 2005.
57
Sections 151 and 152 read with s 155 of the Children’s Act 38 of 2005.
58
Act 38 of 2005 became fully operational on 1 April 2010.
59
Fraser v Naude 1999 (1) SA 1 (CC).
60
Minister of Welfare and Population Development v Fitzpatrick 2000 (3) SA 422 (CC).
61
A further problem was the fact that South Africa had not, at that time, ratified the Hague Convention on
Inter-Country Adoption. It was subsequently ratified, and domesticated through its inclusion in the Children’s Act
38 of 2005.
607
South African citizen by non-citizens and non-residents.62 The declaration of invalidity

was subsequently confirmed by the Constitutional Court. Following Fitzpatrick,
intercountry adoptions have been concluded by the children’s court. Although there was
no legal framework, practitioners working in the children’s court have been guided by
international law linked to procedural guidelines developed by the Department of Social
Development. The Constitutional Court has confirmed that the children’s court is the
forum for adoptions. In AD v DW63 the applicants tried to bypass the process of adoption
in the children’s court by approaching the High Court with an application for sole
custody and guardianship of a little girl, following which they intended to return to the
United States and conclude the adoption there. The Constitutional Court held that the
children’s court is the forum in which adoptions must be concluded, although there
might be exceptional circumstances which warrant approaching a High Court with such
a matter. The facts before the AD v DW court did not amount to exceptional
circumstances, and the matter was referred to the children’s court for the conclusion of
the adoption of the child.
In Du Toit64 the Constitutional Court upheld a High Court decision65 declaring
legislative provisions which precluded lesbian and gay co-habitants from jointly
adopting and exercising guardianship of children to be unconstitutional.
These judgments indicated that the Child Care Act provisions on adoption were in
need of reform. Chapters 15 and 16 of the Children’s Act provide a comprehensive legal
framework for adoption and intercountry adoptions that are compatible with the
Constitution.66
(b) Foster care

Alternative care in the form of foster care is generally not considered to be a permanent
placement option under South African law. Parental responsibilities and the rights of the
biological parents are not completely terminated when children are placed in foster care.
As a general rule, social service professionals are required to work for the eventual
re-unification of the child with his or her family or community. This approach must be
carried out within a framework of planning for permanence in the child’s life, and must
be balanced by an understanding of the need for stability. In some situations, it is in the
interests of the child to be adopted by his or her foster parents. The situation in South
Africa—characterised by a growing number of children needing alternative care—has
led to the development of new ideas in the field of foster care, which are reflected in the
Children’s Act. These include orders to extend the duration of foster care until the child
reaches adulthood,67 and the emergence of ‘cluster foster care’.68
62
See note 60 above.
63
AD v DW 2008 (3) SA 183 (CC).
64
See note 39 above.
65
Du Toit (note 39 above).
66
For analysis of the adoption and intercountry provisions see Skelton & Carnelley (note 50 above) 282–316.
See further J Loffell & T Mosikatsana ‘Adoption’; S Human ‘Inter-Country Adoption’ in CJ Davel & AM Skelton
(eds) Commentary on the Children’s Act (2007).
67
Children’s Act s 186. See further J Loffell & J Gallinetti ‘Foster Care’ in Davel & Skelton (eds) (note 66
above) Chapter 12.
68
Childen’s Act s 183.
608
Children 27.5
Foster care placements are done by way of an order from the children’s court.69
Foster parents caring for children in South Africa are entitled to financial assistance in
the form of a monthly grant.70 The Department of Social Development is responsible for
the payment of foster care grants, a function that it has outsourced to the South African
Social Assistance Agency. A foster care grant is payable to foster parents in respect of a
foster child who has been placed in their care by way of an order from the children’s
court (or through a legally concluded transfer). There is no means test for the foster care
grant. The question of whether caregivers who are related to the child should have a
child placed with him or her and receive the foster child grant (as opposed to the smaller
child support grant available to any caregiver) was discussed in SS v Presiding Offıcer in
the Children’s Court, Krugersdorp71 above. The judgment is interpreted by most
children’s courts to say that children should not be found in need of care and placed in
foster care with grandparents or older siblings, because such persons have a common
law duty of support.
The number of children in foster care has risen exponentially over the years. In April
2010 it reached a peak of 518 500 children living in foster care in South Africa.72A
crisis occurred in the foster care system in 2010 when 123 000 foster care orders lapsed.
Up until that time, two-year foster care orders had been extended administratively, but
the Children’s Act required that these extensions be channeled through the courts. The
large number of extension applications was one factor that caused the system to become
over-loaded, though Hall and Proudlock point out that orders began to lapse prior to the
Act coming into operation.73 The Centre for Child Law obtained an order (by agreement
with the respondents, the Department of Social Development) from the North Gauteng
High Court which deemed the lapsed orders to be re-instated. This order allowed for the
administrative extension of foster care orders until the end of 2014, or the amendment of
the Children’s Act.74
(c) Child and youth care centres

Where a child cannot be placed with family or in foster care, he or she may be placed in
residential care. Prior to the Children’s Act, residential facilities were divided into
places of safety, children’s homes, schools of industry and reform schools. These are
now all included in the Children’s Act under the umbrella term ‘child and youth care
centres’, and the Act lists a range of different programmes which a child and youth care
centre may be registered to provide. The courts have played a role in ensuring access to
such facilities,75 the safety and proper care of children in such facilities,76 and the
prevention of arbitrary transfer of children in such facilities.77
69
Ibid s 156(e).
70
Social Assistance Act 13 of 2004.
71
See note 48 above.
72
The numbers have since levelled off: the number of children in foster care was 524 378 as at February 2012.
73
K Hall & P Proudlock ‘Orphaning and the Foster Child Grant: A Return to the ‘‘Care or Cash’’ Debate’
(2011) 29 Child and Youth Care Work 23 at 25.
74
Centre for Child Law v Minister of Social Development (North Gauteng High Court) unreported case no
21726/11 (order granted 7 April 2011).
75
In S v Z and 23 similar cases 2004 (1) SACR 400 (E) the court ordered the Department of Education to
present its plans to the court to deal with the lack of a reform school in the Eastern Cape, which had caused
children to sit in prison for long periods awaiting transfer. The court issued a supervisory order to ensure
completion of the plans.
609
27.6 THE RIGHT TO BASIC NUTRITION, SHELTER, BASIC HEALTH CARE AND SOCIAL
SERVICES
Sections 26 and 27 provide socio-economic rights for ‘everyone’. The rights give
‘access’ to housing, health care, food, water and social security, but these are subject to
the state taking ‘reasonable measures’ within available resources, to achieve the
progressive realisation of these rights. Section 28 does not contain these internal
qualifiers. The textual differences between s 28(1)(c) and ss 26 and 27 have given rise to
an interpretation that the drafters of s 28(1)(c) of the Constitution intended the
sub-section to impose a direct duty on the state to ensure that children must have their
socio-economic rights met immediately, and that budgetary arguments cannot account
for failure on the part of government. This interpretation has been bolstered by the
Constitutional Court in Governing Body of the Juma Musjid Primary School,78 where
the court interpreted s 29(1)(a), which like s 28(1)(c) contains no internal qualifiers. The
court stated the following:
It is important, for the purposes of this judgment, to understand the nature of the right to ‘a
basic education’ under section 29(1)(a). Unlike some of the other socio-economic rights this
right is immediately realisable. There is no internal limitation requiring that the right be
‘progressively realised’ within ‘available resources’ subject to ‘reasonable legislative
measures’. The right to a basic education in s 29(1)(a) may be limited only in terms of a law
of general application which is ‘reasonable and justifiable in an open and democratic society
based on human dignity, equality and freedom’. This right is therefore distinct from the right
to ‘further education’ provided for in s 29(1)(b). The state is, in terms of that right, obliged,
through reasonable measures, to make further education ‘progressively available and
accessible’.79
Proudlock observes that whilst the courts have supported a similar interpretation of
s 28(1)(c) with regard to children not living with their parents, they have taken a ‘more
nuanced procedural approach’ with regards to children in the care of their parents.80
(a) Socio-economic rights vis-à-vis children’s basic rights to nutrition,

shelter, health care
The first case that dealt, inter alia, with children’s socio-economic rights was
Government of the Republic of South Africa v Grootboom.81 The applicants were adults
and children who lived in an informal settlement and needed housing. The
Constitutional Court initiated the reasonableness test in Grootboom, and further
developed it in Minister of Health v Treatment Action Campaign.82 The reasonableness
76
Centre for Child Law v MEC for Education, Gauteng 2008 (1) SA 223 (T) in which the court gave an order
for sleeping bags to be delivered to children who were without proper bedding in a school of industry in the
middle of winter, as well as a supervisory order for a longer term plan to improve conditions.
77
Jonker v The Manager of Gali Thembani/JJ Serfontein School (Eastern Cape High Court, Grahamstown)
unreported case no 94/2011 (19 March 2012).
78
See note 7 above.
79
Ibid [79].
80
P Proudlock ‘Children’s Socio-Economic Rights’ in T Boezaart (ed) Child Law in South Africa (2009) 291
at 293–295.
81
Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC).
82
Minister of Health v Treatment Action Campaign 2002 (5) SA 703 (CC), referred to as TAC.
610
Children 27.6
test is now well established,83 and is discussed fully in Chapter 26 above. An analysis of
its relevance to children’s socio-economic rights rests mainly on the requirement that a
reasonable policy should not exclude a significant segment of the population, especially
not those whose needs are the most urgent and whose ability to enjoy all rights is most in
peril.84 This part of the test provides space for children’s rights to be invoked, as
demonstrated in the TAC case, where the court found that the negative impact on
children’s rights to basic health care services of the state’s limited Prevention of Mother
to Child Transmission programme was a ground contributing to the unreasonableness of
the policy.85 The exclusion of a vulnerable group of people, including children, was also
a ground for finding government’s policy unreasonable in the case of Khosa.86 The
applicants were permanent residents who sought an order of constitutional invalidity
regarding legal provisions that reserved pensions, child support grants and care
dependency grants for South African citizens, excluding permanent residents.
Children’s rights academics and activists have been somewhat disappointed by the
fact that the courts have largely avoided basing their decisions on s 28(1)(c) of the
Constitution, which is the clause on children’s socio-economic rights, but have rather
focused on the rights afforded to all in ss 26 and 27 of the Constitution. The court’s
rationale rests on the fact that whilst children are living with their parents they must look
first to their families for the provision of their socio-economic rights, such as the right to
housing in Grootboom. However, it has also been acknowledged by several writers87
that the effect of the decision in Grootboom—vis-à-vis children’s rights—underwent a
positive adjustment in the TAC case.88 In that case, which dealt with access to treatment
to avoid mother-to-child transmission of HIV/AIDS, the court held that the state is
obliged to ensure the protection of children’s s 28 rights when the implementation of the
right to parental or family care is lacking—and the TAC case dealt with children born in
public hospitals to indigent mothers. So, whilst Grootboom had stated that children
living with their parents will have to look to their parents, rather than the state, for the
fulfilment of their s 28(1)(c) rights, this position was slightly adjusted in TAC.89 The
court based its main findings on s 27, but utilised s 28(1)(c) to add extra weight to that
provision.
83
S Liebenberg ‘The Interpretation of Socio-Economic Rights’ in Woolman et al (note 15 above) 33–32 to
33–44; C Mbazira Litigating Socio-Economic Rights in South Africa: a Choice between Corrective and
Distributive Justice (2009) 57–60.
84
Grootboom (note 81 above) [43] and [45].
85
Proudlock (note 80 above) 299, citing TAC (note 82 above) [77]–[80]. See further Friedman et al (note 15
above) 47–13 who state that the TAC court interpreted s 28(1)(c) as being subject to progressive realisation.
86
See note 5 above.
87
J Sloth-Nielsen ‘Children’ in DM Davis & MH Cheadle (eds) South African Constitutional Law: The Bill of
Rights (2002) 421; K McLean ‘Housing’ in S Woolman et al (note 15 above) 55–52; M Wesson ‘Grootboom and
Beyond: Reassessing the Socio-Economic Jurisprudence of the South African Constitutional Court’ (2004) 20
SAJHR 284, 304; E Bonthuys ‘The South African Bill of Rights and the Development of Family Law’ (2002) 119
SALJ 748; M Pieterse ‘Reconstructing the Private/Public Dichotomy? The Enforcement of Children’s
Constitutional Social Rights and Care Entitlements’ (2003) 1 TSAR 1; S Liebenberg ‘Taking Stock: The
Jurisprudence on Children’s Socio-Economic Rights and its Implications for Government Policy’ (2004) 5(4)
ESR Review 2.
88
Note 82 above.
89
S Liebenberg ‘The Judicial Enforcement of Social Security Rights in South Africa’ in H Riedel (ed) Social
Security as a Human Right (2007), 26 points out that the court did not conclude that children enjoyed an
unqualified, direct claim to the provision of basic health care services, but rather based their finding on the fact
that the government’s policy was unreasonable because it excluded a particularly vulnerable group.
611
(b) The socio-economic rights of children separated from their parents

Since the judgments of Grootboom and TAC, there have been two reported High Court
judgments that throw light on the claim to socio-economic rights of children who are not
living with their parents. The Centre for Child Law brought two matters before the
Transvaal Provincial Division which have developed the law in this regard. The first
case90 dealt with unaccompanied foreign children and the second with children in the
care system who had been placed by a court order in a school of industries.91 In both
cases the court emphasised the fact that if children are not living with their parents they
have a direct and immediate claim on the state for the fulfilment of their socio-economic
rights.
27.7 THE RIGHT NOT TO BE SUBJECTED TO NEGLECT, ABUSE OR DEGRADATION

The right to family, parental and alternative care recognises the importance of the family
in meeting the needs of children. However, experience has shown that the family is not
always a safe place. For this reason, s 28(1)(d) of the Constitution seeks to protect
children against abuse. The protection of the child’s right not to be subjected to neglect,
abuse or degradation is a domestic reinforcement of art 19(1) of the Convention on the
Rights of the Child.
New laws have ushered in legislative protection against physical and sexual abuse of
children. For instance ch 7 of the Children’s Act provides special measures for the
protection of children, including a reporting requirement for a long list of professionals
who, if they conclude on reasonable grounds that a child has been abused in a manner
causing physical injury, sexually abused or deliberately neglected, must report that
conclusion to the provincial department of social development or to the police.92 A
further protection in ch 7 is the establishment of a register of persons unsuitable to work
with children,93 which aims to prevent people found guilty of abuse from having direct
contact with children in a professional context. Chapter 9 of the Children’s Act provides
the legal machinery to determine whether a child is in need of care and protection.
Where there is concern that a child is in need of care and protection, a social worker
must investigate the circumstances within 90 days of the report, and if the circumstances
require it the social worker must cause a children’s court hearing to be held. The
children’s court will decide on whether the child is in need of care and protection, and
can make a variety of orders ranging from leaving children in the care of parents with
supervision and referral for services, through to placing the child in alternative care such
as foster care, or residential care in a child and youth care centre. If, when the first report
is made, a child is thought to be in need of emergency protection, and removal pending
the investigation and court hearing is the only way to ensure the child’s safety and
well-being, a removal of the child and placement in temporary safe care is permitted by
the Act.94 These powers came under scrutiny by the Constitutional Court in C v
Department of Health and Social Development, Gauteng.95 The court found that the
90
Centre for Child Law v Minister of Home Affairs 2005 (6) SA 50 (T).
91
Centre for Child Law (note 43 above).
92
Section 110 of the Children’s Act.
93
Part 2 of ch 9, including ss 113–128.
94
Sections 151 and 152 of the Children’s Act.
95
Note 6 above.
612
Children 27.7
purpose of the emergency removal procedures was to give life to the injunction in
s 28(1)(d) of the Constitution, and that on the face of it, such legislation must be seen as
protecting children. However, the statute did not provide for an automatic judicial
review of the decision to remove children from their parents,96 and this lacuna was
found to render the sections unconstitutional, due to an unjustifiable infringement of the
rights in ss 28(1)(b), 28(2) and 34. The court cured the problem with a fairly extensive
reading-in of certain words to create an automatic review of removal decisions.
The Criminal Law (Sexual Offences and Related Matters) Amendment Act also
provides for reporting of sexual abuse of children. The definitions of different forms of
sexual abuse have been significantly broadened. Rape is now referred to as ‘sexual
penetration’ and includes both vaginal and anal rape of either gender with any object.97
Sexual crimes include the making, showing or distribution of child pornography and the
sexual ‘grooming’ of children.98 The Act also provides for a register for sex offenders.99
The Act made various amendments to the Criminal Procedure Act 51 of 1977, dealing
with the mechanisms that provide special measures for children to testify. The
constitutionality of a number of these sections was challenged in Director of Public
Prosecutions, Transvaal v Minister of Justice and Constitutional Development.100 The
Constitutional Court applied a section 39(2) reading of the provisions, and found that
although the provisions were not unconstitutional, they must be read in a
constitutionally compliant manner. The court also handed down a structural interdict
requiring the Minister of Justice and Constitutional Development to provide information
and plans pertaining to the equipment to allow for special testimony, and the availability
of intermediaries.
The Constitutional Court has dealt with two cases that pertain to corporal punishment
in public settings. These cases were brought on grounds that included the right to
protection from maltreatment, neglect, abuse or degradation. The court did not make any
significant pronouncements on the meaning of s 28(1)(d) in either of the judgments. In S
v Williams101 the challenge to the validity of the sentencing of whipping for young
offenders was brought on the basis that it violated a number of fundamental rights,
including the right to be protected from maltreatment, neglect, abuse or degradation.102
The court declared the relevant section of the Criminal Procedure Act to be invalid
because it was a violation of the right to be protected from cruel and degrading
punishment, and thus did not find it necessary to examine the s 28 rights in any detail.
The case of Christian Education103 arose following the passing of South African
96
Judicial review of decisions to remove children from parents are required by art 9 of the Convention on the
Rights of the Child and art 19(1) of the African Charter on the Rights and Welfare of the Child. Furthermore, the
previous legislation had provided for such a review.
97
Section 1 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. Prior to
the Sexual Offences Amendment Act coming into operation the Constitutional Court in Masiya v Director of
Public Prosecutions, Pretoria 2007 (5) SA 30 (CC) broadened the definition of rape to include anal rape of girls.
98
Section 18. Prior to the Amendment Act coming into operation the issue of sexual grooming of children had
attracted the attention of the courts; see the minority judgment of Cameron JA in S v M 2006 (1) SACR 67 (W),
and see also S v M 2007 (2) SACR 60 (W) where Satchwell J describes sexual grooming as ‘an ongoing process
aimed at the child accepting sexual activities’.
99
Chapter 6 of Act 32 of 2007.
100
Director of Public Prosecutions v Minister of Justice and Constitutional Development 2009 (4) SA 222
(CC).
101
S v Williams 1995 (3) SA 632 (CC).
102
The case was brought under the interim Constitution and the relevant section was s 30(1)(d).
103
Note 21 above.
613
Schools Act,104 which banned corporal punishment in schools. The Constitutional Court
did not decide whether corporal punishment was a practice that was in violation of the
Bill of Rights, but rather focused on the right to freedom of religion, and subjected the
infringement of that right to a limitations analysis in terms s 36 of the Constitution.105
Sachs J referred to the fact that the state has an obligation to protect all people and
especially children from maltreatment, abuse or degradation.106 He also stated that one
of the reasons for the provisions banning corporal punishment was ‘to protect the learner
from physical and emotional abuse’.107 The court referred to the state’s duty arising
from ratification of the UNCRC to ‘take all appropriate measures to protect the child
from violence, injury or abuse’.108 In the end, however, the outcome of the case turned
on the fact that although the parents’ rights to freedom of religion were violated by the
ban on corporal punishment, that limitation was justifiable.109
The court left the question regarding the constitutionality of corporal punishment in
the home. Attempts to include a ban on corporal punishment in the Children’s Act
failed, but there are ongoing discussions about such a clause being introduced as an
amendment to the Act. Should this not be achieved through legislative measures, the
possibility exists for a constitutional challenge to be brought before the courts. Friedman
et al surmise that this would most likely be aimed at the common-law defence of
reasonable chastisement.110
27.8 THE RIGHT TO BE PROTECTED FROM EXPLOITATIVE LABOUR PRACTICES

The Constitution requires that children be protected from exploitative labour practices.
Section 48 of the Basic Conditions of Employment Act111 prohibits all forced labour.
The Children’s Act protects children against slavery including bondage, servitude,
serfdom or compulsory labour and also against sexual exploitation, trafficking, and
using a child in the commission of an offence.112 These are all ‘worst forms of child
labour’. The Western Cape High Court has commented on this in the context of using a
child to commit a crime. In S v SM,113 the court found that ‘[w]hen sentencing children
and juveniles, especially where payment was offered to them to commit an offence,
courts should see these children and juveniles not only as perpetrators but also as
victims of a serious form of exploitation.’
Section 28(1)(e) and (f) provides protection for children from exploitative labour
practices, and from inappropriate or harmful work . The section does not however ban or
104
Act 84 of 1996.
105
Friedman et al (note 15 above) 47–22 prefer the findings of Liebenberg J in the court a quo (Christian
Education South Africa v Minister of Education 1999 (4) SA 1092 (SE)). Liebenberg J found that even if the
ban on corporal punishment was a prima facie violation of the right to practice religion, because corporal
punishment was a violation of s 28(1)(d), s 31 itself was not violated—this is because s 31(2) acts as an internal
modifier.
106
Ibid [50].
107
Ibid [50].
108
Christian Education South Africa (note 21 above) [41], referring to arts 4, 19 and 34 of the UNCRC.
109
See Friedman et al (note 15 above) 47–18 to 47–24.
110
Ibid 47–23 to 47–24.
111
Act 75 of 1977.
112
Section 141.
113
2010 (1) SACR 504 (WCC). In this case a 16-year-old was one of a number of people hired by a woman to
murder the baby of her former boyfriend. The two youngest (who were both below 18 years at the time of the
commission of the offence) received sentences of 15 years each, while the adults were all sentenced to life
imprisonment.
614
place an age restriction on the employment of children. Section 43 of the Basic

Conditions of Employment Act114 prohibits employment of a child under the age of 15
years, and for all children below 18 years where the work is inappropriate and places at
risk the child’s well-being, education, physical or mental health, or spiritual, moral or
social development.
27.9 THE RIGHT NOT TO BE DETAINED EXCEPT AS A MEASURE OF LAST RESORT

Section 28(1)(g)(i) and (ii) sets out rights in addition to those provided for in s 12 (the
right to physical integrity and protection against arbitrary detention) and s 35 (criminal
process rights) of the Bill of Rights. The departure point is the important principle that
the detention of children should be a measure of last resort, and if detained, this should
be for the shortest appropriate period of time.115
The Constitutional Court has interpreted s 28(1)(g)116 in the context of the minimum
sentencing legislation.117 When the legislation was promulgated, it excluded all children
below the age of 16 years from its operation. Sixteen-year-olds and 17-year-olds were
included in the ambit of the provisions, but the procedure for them was different from
the procedure for adults.118 The courts debated the interpretation of the provisions
relating to 16- and 17-year-olds.119 The question of applicability of minimum sentences
appeared to have been finally resolved by the Supreme Court of Appeal in S v B,120
which held that minimum sentences do not apply to 16- and 17-year-olds.121 It was
argued that the Constitution provides that children should not be detained except as a
last resort, and that a minimum sentence implies a first resort of imprisonment. The
court held that the traditional aims of punishment for child offenders have to be
re-appraised in the light of international instruments. In sentencing a child a court must
give effect to the requirements of international law for individualisation and the need for
proportionality to be applied specifically to young offenders, in the light of the crime and
circumstances surrounding it. The sentencing court should thus start with a ‘clean slate’
when sentencing a child offender. The court found that minimum sentences do not
accord with the principle of ‘detention as a measure of last resort’. Following this case
114
Act 75 of 1997.
115
Section 28(1)(g) is modeled on art 37 of the Convention on the Rights of the Child.
116
Centre for Child Law v Minister of Justice and Constitutional Development 2009 (2) SACR 477 (CC).
Prior to this Constitutional Court matter, other courts have pronounced on s 28(1)(g), notably S v Z en vier ander
sake 1999 (1) SACR 427 (E); S v Kwalase 2000 (2) SACR 135 (C); S v Nkosi 2002 (1) SA 494 (W); Director of
Public Prosecutions, KwaZulu-Natal v P 2006 (1) SACR 243 (SCA) (which disappointingly did not fully
interpret s 28(1)(g), though it was a central issue) and S v N 2008 (2) SACR 135 (SCA).
117
Sections 51 to 53 of the Criminal Law Amendment Act 105 of 1997, which came into operation on 1 May
1998.
118
Section 51(3)(b) provides as follows: ‘If any court referred to in subsection (1) or (2) decides to impose a
sentence prescribed in those subsections upon a child who was 16 years or older, but under the age of 18 years, at
the time of the commission of the act which constituted the offence in question, it shall enter the reasons for its
decision on the record of the proceedings.’
119
S v N 2000 (1) SACR 209 (W); S v S 2001 (1) SACR 79 (W); S v Blaauw [2001] 3 All SA 588 (C); S v
Nkosi 2002 (1) SA 494 (W); Direkteur van Openbare Vervolgings, Transvaal v Makwetsja [2003] 2 All SA 249
(T).
120
S v B 2006 (1) SACR 311 (SCA).
121
The case involved a 17-year-old boy who had been convicted of murder. The court a quo had applied the
minimum sentence of life imprisonment. His appeal against this sentence was upheld on the basis that, in the
opinion of the court, minimum sentences do not automatically apply to persons below the age of 18 years.
615
however, the Criminal Law (Sentencing) Amendment Act122 was passed which
re-instated minimum sentences for 16- and 17-year-olds—a move that ‘invited
constitutional challenge’.123
A challenge to the constitutionality of the minimum sentences law, insofar as it
applied to 16- and 17-year-olds was launched by the Centre for Child Law.124 The
Constitutional Court held that the minimum sentencing legislation should not apply to
children aged 16 and 17 years old. The court confirmed the order of constitutional
invalidity handed down by the High Court125 declaring sections of the Criminal Law
Amendment Act (as amended) invalid. The majority of the Constitutional Court found
that the minimum sentencing legislation limited the discretion of sentencing officers by
directing them to hand down long sentences (including life imprisonment) as a first
resort. Furthermore, the legislation discouraged the use of non-custodial options, it
prevented courts from individualising sentences, and was likely to cause longer prison
sentences. All of these features of the law amounted to an infringement of child
offenders’ rights in terms of s 28(1)(g), and the court found that no adequate justification
had been provided for the limitation. The court found that children should be treated
differently from adults, not for sentimental reasons, but because of their greater physical
and psychological vulnerability and the fact that they were more open to influence and
pressure from others. The court found it to be vitally important that child offenders are
generally more capable of rehabilitation than adults. These are the premises on which
the Constitution requires the courts and Parliament to differentiate child offenders from
adults. The court went on to explain:
We distinguish them because we recognise that children’s crimes may stem from immature
judgment, from as yet unformed character, from youthful vulnerability to error, to impulse,
and to influence. We recognise that exacting full moral accountability for a misdeed might
be too harsh because they are not yet adults. Hence we afford children some leeway of hope
and possibility.126
The court went on to acknowledge that children can and do commit very serious crimes,
and that the legislator has legitimate concerns about violent crimes committed by
children who are younger than 18. The court pointed out that the Constitution does not
prohibit Parliament from dealing effectively with such offenders—the fact that detention
must be used only as a last resort in itself implies that imprisonment is sometimes
necessary. However, the Bill of Rights mitigates the circumstances in which such
imprisonment may happen. It must be a last (not first or intermediate) resort, and it must
be for the shortest appropriate period. If there is an appropriate option other than
imprisonment, the Bill of Rights requires that it be chosen. But if incarceration is
unavoidable, its form and duration must also be tempered, so as to ensure detention for
122
Act 38 of 2007.
123
A Skelton ‘Constitutional Protection of Children’s Rights’ in T Boezaart (ed) Child Law in South Africa
(2009) 288.
124
Centre for Child Law v Minister of Justice and Constitutional Development 2009 (6) SA 632 (CC).
125
Centre for Child Law v Minister of Justice and Constitutional Development [2008] JDR 1377 (T), [2008]
JOL 22687 (T).
126
Ibid [26]–[28].
616
the shortest possible period of time.127 The order declared s 51(1) and (2) invalid to the
extent that they refer to 16- and 17-year-olds.128
The Child Justice Act 75 of 2008 came into operation on 1 April 2010. The Act
introduces a new system for the management of child offenders. The Act expressly
promotes s 28(1)(g) through a series of measures that aim to minimise pre-trial
detention and also offer many alternatives to imprisonment. The number of children
in prison has dropped significantly since the Constitution was introduced, even prior
to the Child Justice Act. This was the result of civil society activism and government
coordination of a number of government departments.129
In S v FM (Centre for Child Law as Amicus Curiae)130 the North Gauteng High
Court was called upon to decide if s 85 of the Act, which requires automatic review
by the High Court of all sentences passed on children below 16 years, and all
custodial sentences (not wholly suspended) of those who are 16 years or older. The
question before the court was whether this includes all regional court sentences in its
ambit. The court based its finding, that regional court sentences are included, on the
fact that this interpretation was more in keeping with s 28(1)(g) because the
sentencing jurisdiction of regional courts may result in long sentences, and a review
process offers an opportunity to check whether such a sentence was used as a last
resort, or whether a shorter period of time might be appropriate.
27.10 THE RIGHT TO LEGAL REPRESENTATION IN CIVIL PROCEEDINGS

According to s 28(1)(h) ‘[e]very child has the right to have a legal practitioner assigned
by the state and at state expense, in civil proceedings affecting the child, if substantial
injustice would otherwise result. The Constitutional Court has referred to this section on
two occasions, both in relation to the appointment of a curator ad litem for young
children.131 These cases illustrate one manner in which s 28(1)(h) may be utilised: as a
measure to protect children caught up in litigation, by ensuring that the curator ad litem
looks after their interests. However, of much more interest is the potential of s 28(1)(h)
to promote the recognition of children’s developing autonomy. As they mature,
children’s views become more central to the resolution of conflicts concerning them.
Section 28(1)(h) provides a platform for children to be directly involved in civil
litigation and for their legal representatives to place the views of the children before the
court. The Children’s Act confirms this new approach very directly.132 Every child of
sufficient age, maturity and stage of development, must be given the opportunity to
participate in matters that concern him or her and the child’s views must be given due
127
Ibid above, [31].
128
To remedy the defect, the court declared that s 51(6) of the Criminal Law Amendment Act 105 of 1997, as
amended by the Criminal Law (Sentencing) Amendment Act 38 of 2007, is to read as though it provides as
follows: ‘This section does not apply in respect of an accused person who was under the age of 18 years at the
time of the commission of an offence contemplated in subsection (1) or (2)’.
129
A Skelton ‘Children Locked Up: Towards Detention as a Measure of Last Resort’ in M Carnelley &
S Hoctor (eds) Law, Order and Liberty: Essays in Honour of Tony Matthews (2011) 219.
130
S v FM [2012] 4 All SA 351 (GNP).
131
In Du Toit (see note 39 above) [3] (Skweyiya AJ held that where there is a risk of substantial injustice to
children a court is obliged to appoint a curator ad litem to represent the interests of children, and that this
obligation flows from the provisions of s 28(1)(h).) See also AD v DW (see note 63 above) [11] fn 5 (the court
placed a heavy reliance on the report of the curatrix).
132
See T Boezaart ‘General Principles’ in CJ Davel & AM Skelton (eds) Commentary on the Children’s Act
2 ed (2012), specifically the comments on ss 10 and 14 of the Act.
617
consideration.133 The Act also provides every child with the right to bring, or be assisted
in bringing a matter to court.134 As discussed above in para 27.2 the Constitutional Court
has on two occasions noted that they would like to hear directly from children
(presumably those who are of sufficient age and maturity) in matters where their rights
were affected.
In Soller NO v G the meaning and scope of s 28(1)(h) was explored in some detail.135
The applicant was a 15-year-old boy, referred to as K, who sought a variation of his
custody order so that he could be placed in the custody of his father. The application was
originally brought in terms of s 28(1)(h) on behalf of K by an attorney who turned out to
have been struck from the roll for what was described as ‘piratical recklessness in his
approach to important litigation’. Satchwell J decided that although the attorney was
unsuitable to represent K, the matter did require the assignment of a legal representative
under s 28(1)(h). The judge went on to observe the significance of the fact that the
legislature inserted s 28(1)(h) into the final Constitution with the full knowledge that the
Office of the Family Advocate136 already existed and therefore that the legal practitioner
assigned in terms of s 28(1)(h) was surely not intended to appropriate the role and usurp
the function of the Family Advocate. The judgment draws a clear distinction between
the role of the Family Advocate and the role of a legal representative:
The family advocate provides a professional and neutral channel of communication between
the conflicting parents (and perhaps the child) and the judicial officer. The legal practitioner
stands squarely in the corner of the child and has the task of presenting and arguing the
wishes and desires of that child.137
In Ex parte Van Niekerk two girls aged 13 and 11 were granted leave to intervene as
parties in an application brought by their father to gain access to them.138 The court held
that to give proper effect to the provisions of s 28(1)(h) ‘a court is entitled to join minors
as parties to proceedings affecting their best interests. Unless the children are joined as
parties they will not be able to appeal against an adverse order’.139 In R v H140 the court
asked whether a child caught up in litigation between divorcing parents should have
separate legal representation. A representative was appointed by the court in terms of
s 28(1)(h) after consultation with all the parties. The lawyer later successfully applied to
be joined as a second defendant.141The approach in Ex Parte Van Niekerk is the
preferred one as it joins the children themselves as parties. This gives the children a
better opportunity to participate.
Section 28(1)(h) requires legal representation where ‘substantial injustice’ would
otherwise result. The Soller court defined this as situations where ‘the civil
proceedings concerned are of crucial importance to [the child’s] current life and
133
Children’s Act s 10. The section came into operation on 1 July 2007. The provision is based on art 12(1) of
the CRC and art 4(2) of the ACRWC.
134
Children’s Act s 14. A child may approach a court directly, as can anyone acting in the interest of the child,
anyone acting as a member of or in the interests of a group or class, or in the public interest. These rights appear
in s 15 of the Children’s Act, and are a direct echo of s 38 of the Constitution.
135
Soller NO v G 2003 (5) SA 430 (W).
136
The Family Advocate was created by the Mediation in Certain Divorce Matters 24 of 1987.
137
Soller NO (note 135 above) 438D–E.
138
Ex Parte Van Niekerk [2005] JOL 14218 (T).
139
Ibid [8]. The court relied on the Canadian case of Re Children’s Aid Society of Winnipeg & AM & LC Re
RAM, 7 CRR.
140
R v H 2005 (6) SA 535 (C).
141
In nomine officio capacity.
618
future developments.’142 In Legal Aid Board v R the court found that the Legal Aid
Board (now called Legal Aid South Africa) can appoint a legal representative for a
child, and that it is not necessary to approach the High Court in every case.143 The
court found that questions about where a child is to live and which parent will be
making the important decisions in a child’s life are of crucial importance to the
child’s life. When it is evident that the child’s voice is being drowned out by
warring parents, there will likely be a substantial injustice if the child’s voice is not
heard. However, it may be that the substantial injustice test should be limited to the
requirement of ‘at state expense’, as is the case with s 35 of the Constitution. In that
section, the right to legal representation is listed separately at s 35(3)(f), and then the
substantial injustice test is mentioned in s 35(3)(g), linked to legal representation at
state expense.
27.11 THE RIGHT NOT TO BE USED DIRECTLY IN ARMED CONFLICT, AND TO BE

PROTECTED IN TIMES OF ARMED CONFLICT
The sub-section prevents the conscription or recruitment into the armed forces of
children in times of armed conflict.144 In this regard, the Constitution sets the norm at
the highest standard in international law.145 In accordance with the general rules of
international humanitarian law, the sub-section places a duty on the state to take all
feasible measures to protect and care for children who are affected by an armed conflict.
The Defence Act146 accords with the Constitution, as it provides that the minimum age
of recruitment into the Defence Force is 18 years, and this may not be derogated from in
times of armed conflict.147
27.12 SECTION 28(2) ‘BEST INTERESTS’
(a) A principle and a right

The best interests principle was established in South African law in the 1940s,148 but its
influence was previously limited to family law and care proceedings. It is clear that
s 28(2), following the lead of the international instruments,149 expands the meaning and
application of s 28(2) to all aspects of the law that affect children. Section 28(2) has
helped to develop the meaning of some of the other rights in the Bill of Rights. It has
also been used to determine the ambit, and to limit, other competing rights. Section
28(2) is not only a principle that helps interpretation of other rights. It is a right in itself.
Despite the emphatic words ‘paramount importance’, it does not serve as a trump to
142
Soller (note 135 above) 435D.
143
Legal Aid Board v R 2009 (2) SA 262 (D).
144
The wording of this section raises the question whether children may be used indirectly in armed conflict
where they do not themselves take part in combat, but supply other services to armed forces. See Friedman et al
(note 15 above) 47–39.
145
Section 38 of the CRC only prohibits children below 15 years from being directly involved in armed
conflict. The ACRWC, at art 22, refers to all children, and the Optional Protocol to the CRC (which has been
signed but not ratified by South Africa) has a minimum recruitment age of 18, which also refers to armed groups
not under the control of the state.
146
Act 42 of 2002.
147
Defence Act s 91(2)(a).
148
Fletcher v Fletcher 1948 (1) SA 130 (A).
149
Article 3 of the UNCRC, art 4 of the ACRWC.
619
automatically override other rights, and as a right in a non-hierarchical system of rights,

is itself capable of being limited.
The Constitutional Court has delivered a number of important judgments regarding
best interests. In Minister of Welfare and Population Development v Fitzpatrick150 the
court declared s 18(4)(f) of the Child Care Act151 invalid because it prohibited the
adoption of a South African child by non-citizens. The court found the law too
restrictive because it limited the best interests of the child, which would sometimes be
achieved through being adopted by non-South African parents. As Goldstone J pointed
out in Fitzpatrick, s 28(1) is not exhaustive of children’s rights:
Section 28(2) requires that a child’s best interests have paramount importance in every
matter concerning the child. The plain meaning of the words clearly indicates that the reach
of s 28(2) cannot be limited to the rights enumerated in s 28(1) and 28(2) must be interpreted
to extend beyond those provisions. It creates a right that is independent of those specified in
s 28(1).152
This makes it clear not only that s 28(2) refers to the rights enumerated in s 28(1), but
also that s 28(2) is a right, and not merely a guiding principle. In addition to being a
self-standing right, it also strengthens other rights. Thus the Constitutional Court has
drawn the best interests principle into cases pertaining to the right to family or parental
care,153 international child abduction,154 child pornography,155 the right to housing or
shelter,156 adoption of children by unmarried fathers,157 by same-sex couples158 and by
foreign couples,159 inheritance under customary law,160 the right to access health care in
the form of preventive anti-retroviral medicines,161 the right to social assistance,162 the
right of children to privacy and dignity,163 the testimony of child victims and
150
See note 60 above.
151
Act 74 of 1983.
152
Fitzpatrick (note 60 above) [17].
153
In Bannatyne v Bannatyne 2003 (2) SA 363 (CC) the court held that the best interests requirement obliged
parents to properly care for their children, but also obliged the state to provide the necessary legal administration
to ensure appropriate care—in this case related to the payment of maintenance; S v M (see note 131 above) in
which the court considered the best interests principle together with the right to family and parental care in the
situation where the children might be deprived of such care if their primary caregiver was imprisoned. The court
found ([30]) that ‘section 28 requires the law to make best efforts to avoid, where possible, any breakdown of
family life or parental care that may threaten to put children at increased risk. Similarly, in situations where
rupture of the family becomes inevitable, the state is obliged to minimise the consequent negative effect on
children as far as it can’. See also the Case (see note 6 above) which found the lack of a provision for automatic
review of the removal of children from their parents to be an unconstitutional infringement of their best interests.
154
Sonderup v Tondelli 2001 (1) SA 1171 (CC).
155
De Reuck v Director of Public Prosecutions (Witwatersrand Local Division) 2004 (1) SA 406 (CC).
156
Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC).
157
Fraser v Children’s Court, Pretoria North 1997 (2) SA 261 (CC).
158
Du Toit (note 39 above).
159
See AD v DW (note 63 above) where best interests was the overriding factor in a bid by a couple from the
USA to adopt a South African child.
160
Bhe (note 1 above).
161
TAC (note 82 above).
162
Khosa (note 5 above).
163
Johncom Media Investments Limited (note 2 above).
620
Children 27.12
witnesses,164 the rights of children not be detained as a measure of last resort,165 and the
right of children to a basic education.166
In the case of AD v DW167 the court had to weigh up the best interests of the
child against other important international law principles pertaining to intercountry
adoption. In the Supreme Court of Appeal,168 the majority judgment had given
substantial weight to the principle of subsidiarity, which is a rule that requires
intercountry adoption to be subsidiary to domestic solutions—in practice it requires
that sufficient efforts must be made to find a suitable family placement for a child in
his or her country of origin before proceeding with inter-country adoption. This
principle had not been followed in the AD v DW case. The Constitutional Court
found that, important as the subsidiarity principle was, it was of less importance than
the best interests of the child, particularly as the child was almost three years of age,
and her adoption by anyone other than the applicants seemed unlikely. The court
found that the best interests of each child must be examined on an individual basis
and not in the abstract. Sachs J stressed that ‘child law is an area that abhors
maximalist legal propositions that preclude or diminish the possibilities of looking at
and evaluating the specific circumstances of each case’.169
(b) Limitation of rights and the paramountcy principle

Section 28(2) has also been used to limit rights. Sonderup v Tondelli170 dealt with the
rule of ‘peremptory return’ in the Hague Convention on the Civil Aspects on
International Child Abduction. The rule was found by the court to satisfy the long-term
best interests of all children. If a child’s short-term best interests were limited by the
Hague Convention, such limitation would be justifiable in terms of s 36 of the
Constitution, largely because of the important purpose of the Convention to protect all
children from the negative effects of children being unlawfully moved across
international borders.
In De Reuck v Director of Public Prosecutions, Witwatersrand Local Division171 the
High Court had found held that the ban on pornography did not contravene the
applicant’s rights to privacy and freedom of expression because of the paramountcy of
the best interests of the child, which limited the ambit of that right. The Constitutional
Court172 did not allow best interests to limit the ambit of the rights to freedom of
expression, and found instead that the laws banning child pornography infringed those
rights. However, the court did apply s 28(2) to justify the limitation of the rights. The
court found that the law banning child pornography limits rights to privacy and freedom
of expression, but this limitation is justifiable due to the importance of the purpose of
protecting children’s best interests. The law is therefore not unconstitutional.
164
Director of Public Prosecutions, Transvaal v Minister of Justice (note 100 above).
165
Centre for Child Law (note 124 above).
166
Governing Body of Juma Masjid (note 7 above).
167
See note 53 above.
168
De Gree v Webb 2007 (5) SA 184 (SCA).
169
See note 53 above [55]. In the same para the court further stated that technical matters such as which party
bears the onus of proof should play a diminished role in matters where the courts are guarding the best interests
of a child.
170
See note 154 above.
171
De Reuck v Director of Public Prosecutions, Witwatersrand Local Division 2003 (3) SA 389 (W).
172
De Reuck (note 155 above).
621
It was also in De Reuck that the Constitutional Court made it clear that the word
‘paramount’ in s 28(2) does not mean that children’s best interests can never be limited
by other rights. In the High Court judgment of De Reuck Epstein AJ held that ‘a child’s
best interests . . . is the single most important factor to be considered when balancing or
weighing competing rights and interests concerning children. All competing rights must
defer to the rights of children unless unjustifiable’ (para 10).173 This holding was
overruled by the Constitutional Court. To say that s 28(2) of the Constitution ‘trumps’
other provisions of the Bill of Rights was ‘alien to the approach adopted by this court
that constitutional rights are mutually interrelated and interdependent and form a single
constitutional value system’.174 Thus the court stated that ‘section 28(2), like the other
rights enshrined in the Bill of Rights, is subject to limitations that are reasonable and
justifiable in compliance with section 36’.175
The meaning of ‘paramount importance’ was expanded upon in S v M.176 A single
mother of three children was facing a short-term of imprisonment for fraud.177 She
appealed, claiming that when sentencing primary caregivers courts should take into
account the effects of imprisonment on their children. The competing rights, therefore,
were children’s rights to parental care and consideration of best interests on the one
hand, and the rights of the community to be protected from crime on the other.
Sachs J pointed out that the very expansiveness of the paramountcy principle appears
to promise everything but deliver little in particular.178 The best interests concept is
indeterminate, resulting in various interpretations. Sachs J went on to say that it is
precisely the contextual nature and inherent flexibility of s 28 that constitutes the source
of its strength. The determination of best interests will depend on the circumstances of
each case, and this is not a weakness, but a strength. A truly child-centred approach
requires an in-depth consideration of the needs and rights of the particular child in the
‘precise real-life situation’ he or she is in. To apply a pre-determined formula for the
sake of certainty, irrespective of the circumstances, would in fact be contrary to the best
interests of the child.179
The process of weighing up the best interests of the child was spelt out in S v M
building on the previous jurisprudence.180 S v M went further than any previous
judgment in explaining paramountcy, though it still defines the principle more by stating
what it is not, rather than what it is.181 It is not an ‘overbearing and unrealistic trump’,182
it cannot be interpreted ‘to mean that the direct or indirect impact of a measure or action
on children must in all cases oust or override all other considerations.’ Sachs J
concluded that ‘the fact that the best interests of the child are paramount does not mean
173
174
175
Ibid [55], citing Sonderup (note 154 above) [27]–[30].
176
S v M (note 13 above).
177
A sentence in terms of s 276(1)(i) of the Criminal Procedure Act 51 of 1977, which would permit her to
serve one-sixth of her sentence in prison, and then be considered for release under correctional supervision.
178
S v M note 13 above [23].
179
This idea was first articulated in Fitzpatrick (note 60 above) [18]), and the court has restated this position
subsequent to S v M in the judgment of AD v DW (note 63 above) [55].
180
Fitzpatrick (note 60 above); De Reuck (note 155 above); Sonderup v Tondelli (note 154 above).
181
A Skelton ‘Severing the Umbilical Chord: A Subtle Jurisprudential Shift Regarding Children and Their
Primary Caregivers’ (2008) 1 CCR 351.
182
S v M (note 13 above) [25].
622
Children 27.12
that they are absolute.’183 To acknowledge all of these realities is important because if
the best interests principle is spread ‘too thin’ it risks becoming devoid of meaning,
instead of promoting the rights of children as it was intended to do.184
The judgment concluded that sentencing officers should pay appropriate attention to
the children of a primary caregiver and take reasonable steps to minimise damage.
The paramountcy principle, read with the right to family care, requires that the interests of
children who stand to be affected receive due consideration. It does not necessitate
overriding all other considerations. Rather, it calls for appropriate weight to be given in each
case to a consideration to which the law attaches the highest value, namely the interests of
children who may be concerned.185
The approach of S v M was applied in Van der Burg v National Director of Public
Prosecutions186 which dealt with the forfeiture of assets under the Prevention of
Organised Crime Act 121 of 1998. In this instance the asset was a house, and also the
family home of the three children. The court found that the state institutions involved,
including the courts, have a responsibility to consider the best interests of children, and
that the best interests question deserves separate consideration from the general
proportionality inquiry required in assets forfeiture.187
In Centre for Child Law v Minister of Justice Cameron J made the point that the
constitutional injunction that a ‘child’s best interests are of paramount importance in
every matter concerning the child’ does not entirely preclude sending child offenders
to jail, though this must always be done as a measure of last resort. According to
Cameron J, paramountcy means that ‘the child’s interests are ‘‘more important than
anything else’’, but not that everything else is unimportant’.188
183
Ibid [26].
184
Ibid [25].
185
Ibid [42].
186
Van der Burg v National Director of Public Prosecutions 2012 (2) SACR 331 (CC).
187
Ibid [68]–[70].
188
See note 124 above [29].
623
Chapter Twenty-eight
Culture, Language and Education

28.1 The constitutional protection of minority rights. . . . . . . . . . . . . . . . . . . . . . . 625
28.2 Rights of cultural, religious and linguistic communities: s 31 . . . . . . . . 626
(a) An individual right exercised communally . . . . . . . . . . . . . . . . . . . . . . . 626
(b) Membership of a ‘cultural, religious or linguistic community’ . . . 628
(i) Community. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 628
(ii) Belonging . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 629
(c) Content of the s 31 right. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 630
(i) ‘May not be denied the right . . .’ . . . . . . . . . . . . . . . . . . . . . . . . . . . 630
(ii) The right to enjoyment of culture in community with others. 631
(iii) The right to practise a religion in community with others . . . 633
(iv) The right to use a language of choice . . . . . . . . . . . . . . . . . . . . . . . 634
(d) The right to form, join and maintain cultural, religious and
linguistic associations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 635
(e) Consistency with the Bill of Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 636
28.3 A right of participation in cultural life: s 30 . . . . . . . . . . . . . . . . . . . . . . . . . . 638
28.4 Associative education rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 638
(a) Right to instruction in the official language of choice . . . . . . . . . . . . 638
(b) Right to establish private educational institutions . . . . . . . . . . . . . . . . 639
Education
29. (1) Everyone has the right—
(a) to a basic education, including adult basic education; and
(b) to further education, which the state, through reasonable
measures, must make progressively available and accessible.
(2) Everyone has the right to receive education in the official
language or languages of their choice in public educational institutions
where that education is reasonably practicable. In order to ensure the
effective access to, and implementation of, this right, the state must
consider all reasonable educational alternatives, including single
medium institutions, taking into account—
(a) equity;
(b) practicability; and
(c) the need to redress the results of past racially discriminatory laws
and practices.
(3) Everyone has the right to establish and maintain, at their own
expense, independent educational institutions that—
624
Culture, Language and Education 28.1
(a) do not discriminate on the basis of race;

(b) are registered with the state; and
(c) maintain standards that are not inferior to standards at comparable
public educational institutions.
(4) Subsection (3) does not preclude state subsidies for independent
educational institutions.
Language and culture

30. Everyone has the right to use the language and to participate in
the cultural life of their choice, but no one exercising these rights may
do so in a manner inconsistent with any provision of the Bill of Rights.
Cultural, religious and linguistic communities

31.(1) Persons belonging to a cultural, religious or linguistic
community may not be denied the right, with other members of that
community—
(a) to enjoy their culture, practise their religion and use their language;
and
(b) to form, join and maintain cultural, religious and linguistic
associations and other organs of civil society.
(2) The rights in subsection (1) may not be exercised in a manner
inconsistent with any provision of the Bill of Rights.
28.1 THE CONSTITUTIONAL PROTECTION OF MINORITY RIGHTS

It is not surprising that the South African Constitution contains a number of provisions
aimed at accommodating and protecting ethnic, religious and linguistic minorities.
Ethnic and linguistic division has been a characteristic, perhaps definitive, feature of
South African political life since colonial settlement. Prior to the 1994 constitutional
revolution, a minority population had aggressively held a monopoly of political power
for three centuries. Before it could be persuaded to relinquish that power, the
representatives of that minority insisted on constitutional protection and special status.
Given its long-standing commitment to the establishment of a non-racial constitutional
order, the ANC rejected as non-negotiable any attempt to entrench what it termed ‘racial
group rights.’ This contention resulted in three Constitutional Principles, two of
which—CP XI and CP XII—required minority rights to be catered for in the final
constitution. The third—CP XIV—authorised constitutional provision for what it
termed ‘a notion of the right of self-determination by any community sharing a common
cultural and language heritage.’1
The 1996 Constitution gives effect to the requirements of these Principles in the Bill
of Rights, which contains a right to equality of treatment and freedom from unfair
discrimination, listing as impermissible grounds of differentiation race, ethnic or social
1
On the status and effect of the Constitutional Principles, see para 12.2(b) in Chapter 1 above.
625
origin, colour, religion, belief, culture,2 language and birth (ss 9(3) and (4)). It also
protects religious freedom and association and political participation rights (ss 15, 18
and 19). Members of cultural minorities receive indirect protection from the hate speech
qualification to s 16: freedom of expression does not extend to ‘advocacy of hatred that
is based on race, ethnicity . . . or religion’ (s 16(2)(c)). Three sections of the Bill of
Rights are specifically aimed at minority protection. Section 30 restrains interference by
the state or by private individuals and institutions with an individual’s right to use the
language or to participate in the culture of his or her choice. Section 31 accords a similar
protection to a different category of right-holder—‘persons belonging to a cultural,
religious or linguistic community’. Section 29 guarantees a right to education in the
language of an individual’s choice and a right to establish private educational
institutions.
Outside the Bill of Rights, the Constitution requires the establishment of a
Commission for the Promotion and Protection of the Rights of Cultural, Religious and
Linguistic Communities.3 A discussion of self-determination is beyond the scope of this
book. It can simply be noted that s 235 repeats the commitments of CP XIV: recognition
of the right of self-determination of any community sharing a common cultural and
language heritage, within a territorial entity in the Republic or in any other way,
determined by national legislation is not constitutionally precluded. The Constitution
contains detailed provisions relating to the use and promotion of official languages and
other languages used by communities in South Africa (s 6).4
28.2 RIGHTS OF CULTURAL, RELIGIOUS AND LINGUISTIC COMMUNITIES: S 31
(a) An individual right exercised communally

Section 31 is based on art 27 of the International Covenant on Civil and Political Rights
(1966), the principal and exemplary formulation of a universal right requiring state
respect for culture and language. Article 27 provides as follows:
In those states in which ethnic, religious or linguistic minorities exist, persons belonging to
such minorities shall not be denied the right, in community with the other members of their
group, to enjoy their own culture, to profess and practice their own religion, or to use their
own language.
The linguistic similarities between s 31 and art 27 are self-evident. Section 31 accords to
members of cultural, linguistic and religious communities, rights of participation in their
culture, language and religion ‘with other members of that community’. This is the
equivalent of art 27’s phrase ‘in community with other members of their group’. It has
been observed that this phrase makes art 27 a hybrid of individual and collective rights.
In its General Comment on art 27, the Human Rights Committee noted that ‘[a]lthough
the rights protected under art 27 are individual rights, they depend in turn on the ability
2
See MEC for Education, Kwazulu-Natal v Pillay 2008 (1) SA 474 (CC) [46]. Section 30, the prohibition of
unfair discrimination on the basis of culture in s 9, and the Promotion of Equality and Prevention of Unfair
Discrimination Act 4 of 2000 are distinct rights, but may overlap when the discrimination in question flows from
interference with a person’s cultural practices.
3
Section 185.
4
See I Currie ‘Official Languages and Language Rights’ in Woolman, Bishop & Brickhill (eds) Constitutional
Law of South Africa Chapter 65.
626
of the minority group to maintain its culture, language or religion’.5 The right of a
member of a cultural or linguistic community cannot meaningfully be exercised alone.
Enjoyment of culture and use of language presupposes the existence of a community of
individuals with similar rights.6 The same reasoning applies to s 31. The acts of
enjoyment of culture, speaking a language or practising a religion are ‘associative’—
they are only possible in community with others.7 Culture, religion and language are
essentially communal objects, and are the means of expression of a common sense of
identity, values and traditions. Therefore an individual right of enjoyment of culture
assumes the existence of a community that sustains a particular culture. Similarly, a
right to use a language implies the existence of a community of fellow users of the
language. An individual’s right of participation in cultural life will be impugned if some
harm comes to the cultural community in which that individual takes part.
Accordingly, the s 31 right protects both individual and group interests in cultural
integrity. The hybrid scope of the right complicates its application. Though
individual and group interests in cultural integrity frequently coincide they may,
equally frequently, diverge. Where an individual member of a linguistic community
challenges, for example, legislation restricting the public use of his or her language,
individual and communal interests in the preservation of that language converge.
Should the legislation be struck down as a violation of s 31, there is a vindication
not only of the individual applicant’s rights but of the interests of the entire
community of speakers of the language. Where, however, a community’s interest in
the preservation of its identity is expressed through measures restricting individual
participation in the life of that community, group and individual interests are at odds.
The possibility of divergence is illustrated by two decisions of the UN Human
Rights Committee dealing with art 27. In Lovelace v Canada,8 the Committee took
the view that the withdrawal by a Canadian statute of a Maliseet Indian woman’s
right to reside on the Tobique Reserve in Canada reserve because of her marriage to
a non-Indian violated her art 27 right.9 According to the Committee, ‘the right of
Sandra Lovelace to access to her native culture and language, “in community with
other members” of her group, has in fact been, and continues to be interfered with,
5
General Comment Adopted by the Human Rights Committee under Article 40, Paragraph 4, of the
International Covenant on Civil and Political Rights, No 23(50) (art 27) (26 April 1994) para 5.2.
6
Ibid para 6.2.
7
Pillay (note 2 above) [52]–[53] (Langa CJ): ‘Cultural identity is one of the most important parts of a person’s
identity precisely because it flows from belonging to a community and not from personal choice or achievement’
and [144] (O’Regan J): ‘culture as conceived in our Constitution, involves associative practices and not
individual beliefs’.
8
Lovelace v Canada (1985) 68 ILR 17.
9
Section 14 of the Indian Act (1970) provided that ‘[an Indian] woman who is a member of a band ceases to be
a member of that band if she marries a person who is not a member of that band’. The loss of membership status
entailed the loss of the right to the common use and benefits of the reserve land allotted to the band. Should the
woman marry a member of another band, she would acquire membership of her husband’s band and associated
land rights. In this case, Lovelace married a non-Indian, thereby losing her Indian status in terms of the Act and
all rights of residence on reserve land. Lovelace’s principal complaint in her communication to the Committee
was that the Act was discriminatory. For jurisdictional reasons, the Committee sidestepped the discrimination
issue, deciding the matter instead on the basis of Lovelace’s claim that ‘[t]he major loss to a person ceasing to be
an Indian is the loss of the cultural benefits of living in an Indian community, the emotional ties to home, family,
friends and neighbours, and the loss of identity’. Ibid [13.1].
627
because there is no place outside the Tobique Reserve where such a community
exists’.10
In Lovelace, the community’s interest in preserving a distinct ethnic identity
through legal mechanisms discouraging inter-ethnic marriages clashed with the
individual’s right of participation in the life of her community. Article 27 was
interpreted by the Human Rights Committee to protect the individual’s rights of
participation at the expense of communal interests. However, the Committee stressed
that not every interference with an individual’s right of enjoyment of cultural and
community life could be considered a denial of rights under art 27. National
legislation might legitimately define rights of residence on communal land to protect
resources and preserve the identity of a people. But restrictions on rights of residence
had to have a reasonable and objective justification and be consistent with the other
provisions of the Covenant. Kitok v Sweden11 illustrates a situation in which art 27
may protect the interests of the community at the expense of individual interests.
Here, the Committee found statutory restrictions on individual membership of a Sami
village to have as their raison d’être the preservation and well-being of the Sami
minority. Such objectives and measures were considered to be reasonable and
consistent with art 27.
These illustrations make it clear that the interpretation and implementation of s 31
requires the balancing of two divergent aspects of the right. Though in essence an
individual right aimed at the protection of group interests, s 31 has an additional,
purely individualistic aspect. Because it is phrased as an individual right, s 31
protects individual interests in affiliation—membership of, participation in and
association with cultural, linguistic and religious communities. By contrast, the other,
communal, aspect of the right may at times be used to support arguments for the
exclusion of individual participants in the interests of group integrity or survival. In
order to preserve the identity of a group, that group may wish to set restrictions on
the qualifications of its members. For example, religious communities may wish to
restrict access to conformists and to expel those who deviate from accepted doctrine
or those who marry outside the faith.12
(b) Membership of a ‘cultural, religious or linguistic community’

(i) Community
Section 31 avoids the term ‘minority’ in art 27 and instead uses the term ‘community’.
Defining ‘community’ is rather difficult. At its most general, the word can mean simply
an aggregation of people (similar to ‘state’ or ‘society’). More precisely, the modern
usage of the word denotes an aggregation of people with a particular quality of
relationship, held together by something in common. It is the quality of relationship that
is crucial. One would not think of left-handed people as forming a community although
10
Ibid [15].
11
Kitok v Sweden 96 ILR 637.
12
See Taylor v Kurtstag NO 2005 (1) SA 362 (W) [58]: ‘The members of the faith, exercising their own rights
in terms of s 31, have the right to protect the integrity of their common bond by disciplining those who do not
conform’; the court upheld the issuing of a Cherem, or excommunication order of a Jewish Ecclesiastical Court,
against a wayward congregant). See also the facts of Mohamed v Jassiem 1996 (1) SA 673 (A) (members of the
Ahmadiya movement treated as apostates by orthodox Muslims, may not enter mosques, may not marry a
Muslim, may not be buried in Muslim cemeteries or have any association with Muslims).
628
they undoubtedly share something in common. Nor would one think of the shareholders
of a large public company as a community although, unlike left-handed people, they
have something in common that is a matter of their own choosing and not simply an
arbitrary characteristic.13 What of the speakers of the Afrikaans language? They share
an important characteristic, but whether the nature of their relationship with each other
is sufficient to constitute a community is not clear. Afrikaans speakers do not know each
other personally, do not systematically interact with each other and are divided in any
number of significant ways such as race, class and political affiliation.14 Yet it seems
clear that most speakers of the language would feel aggrieved if a legal measure
impacted deleteriously on the use of the Afrikaans language, even if the measure had
little or no effect on them personally. Equally, it seems clear that should s 31 not be
available to protect against measures affecting the Afrikaans language because of a
restrictive definition of ‘community’, the right would serve very little purpose.
Arguably, the most pragmatic way to deal with the difficulties of definition of the
term community is to see it as doing more or less the same work as the term for which it
is a substitute—art 27’s category of a ‘minority’. The reason for the substitution has
more to do with the attitude conveyed by the word ‘community’ than with a desire that
the word should denote a significantly different object to ‘minority’. In contemporary
South African discourse, positive associations attach to the words ‘culture’ and
‘community’, while ‘ethnic’ and ‘minority’ are indelibly tainted by their association
with apartheid ideology. Nevertheless, the purpose of s 31 is to protect the same values
of cultural pluralism and tolerance that art 27 seeks to protect. There is therefore enough
congruence between the two terms that definitions of ‘minority’ can assist in the
definition of ‘community’.
In international law, a minority is a separate and distinct group, distinguished on the
basis of race, religion or language from other groups. To be a minority the group must
manifest a sense of community and a desire to preserve its identity. The group must be
in a non-dominant position. It requires rights to protect it because it cannot use political
power to do so. By analogy, a ‘community’ for purposes of s 31 should be an
identifiable group, united by a common religion, language or culture, that is
self-consciously a community. Self-consciousness requires that the members of the
group should identify themselves as part of the group, and that they should be
identifiable by other members as such. Non-dominance simply means that the
community should find itself at odds from time to time with the rest of society: that its
culture is not the dominant culture, that its language is not the majority language, that its
religion is not the official religion of the state. The purpose of the grant of the s 31 right
is to enable such a community to preserve its distinct existence against the forces of
discrimination or assimilation to which it would otherwise be vulnerable.
(ii) Belonging
To claim the protection of the s 31 right, a claimant must be a person ‘belonging to a
cultural, religious or linguistic community’. This is the equivalent of art 27’s phrase
‘persons belonging to . . . [ethnic, religious or linguistic] minorities’. The Human Rights
13
R Thornton & M Ramphele ‘The Quest for Community’ in E Boonzaaier & J Sharp (eds) South African
Keywords (1988) 29.
14
J Sharp ‘Introduction: Constructing Social Reality’ in Boonzaaier & Sharp (eds) (note 13 above) 1, 14–15.
629
Committee pointed out in its General Comment that this phrase indicates that the right is
designed to protect ‘those who belong to a group and who share in common a culture, a
religion and/or a language’.15 The right is therefore not a right of everyone.
The word ‘belonging’ indicates that one is bound by some or other tie to something. It
is clear then that s 31 requires claimants to prove that some tie exists between them and
their group. What is unclear is what sort of tie would be sufficient. In Lovelace v
Canada, the Committee dealt in the following way with the question of Sandra
Lovelace’s membership of the Maliseet ethnic minority:
The rights under art 27 of the Covenant have to be secured to ‘persons belonging’ to the
minority. . . . Persons who are born and brought up on a reserve, who keep ties with their
community and wish to maintain those ties must normally be considered as belonging to that
minority within the meaning of the Covenant. Since Sandra Lovelace is ethnically a
Maliseet Indian and has only been absent from her home reserve for a few years during the
existence of her marriage, she is, in the opinion of the Committee, entitled to be regarded as
‘belonging’ to this minority and to claim the benefits of art 27 of the Covenant.16
The first type of connection recognised as legitimate by the Committee is ethnic origin:
Lovelace was born a Maliseet. This is supplemented by evidence of continued ties of
affinity with her ethnic group, such as residence among the group, association and
identification with the group. In the case of s 31, the first type of connection is likely to
be far less important than the second. This is because, as has been outlined above, s 31
seeks to protect ties of affinity rather than genealogy. Culture, language and religion are
more a matter of shared experience than of genetics. Accordingly, to prove membership
of a cultural, linguistic or religious community some concrete tie of affinity must be
proved to exist between the individual and that community. In the case of language such
a tie would be demonstrated by showing that the language in question is the individual’s
mother tongue, that it is an important component of his or her personal and family life,
and that the individual identifies with and uses the language.17 In the case of religion, a
claimant would have to show that he or she practises a religion and is actively involved
in the religious life of the community. What is important, therefore, is that the individual
claimant demonstrates a history of shared experience and identification with the
linguistic, cultural or religious community in question. A person belongs to one of s 31’s
communities because that person has historical associations with the community and has
chosen to maintain those associations.
(c) Content of the s 31 right

(i) ‘May not be denied the right . . .’
The negative phrasing of s 31 (‘may not be denied the right’) contrasts with the positive
phrasing of most other rights in the Bill of Rights (usually, ‘everyone has the right’).
This means that, at a minimum, s 31 is a negative liberty. Members of communities may
freely engage in the practice of culture, language and religion without interference by
the state or from any other source.
Is s 31 more than simply a right to be left alone to practice culture, language and
religion? Does the right require only that such practices are tolerated, but not that they
15
General Comment (note 5 above) para 5.1.
16
Lovelace (note 8 above) [14].
17
F de Varennes Language, Minorities and Human Rights (1996) 149.
630
are supported? The answers to these questions are a matter of interpretation. On the face
of it s 31 is phrased as if no more than a negative liberty. But constitutional
interpretation requires one to look further than the phrasing: ‘whilst paying due regard to
the language that has been used, [an interpretation should be] ‘generous’ and
‘purposive’ and give . . . expression to the underlying values of the Constitution.’18
Arguably, the purpose of the s 31 right requires more than that minority activities are
simply permissible. The inclusion of s 31 in the Constitution indicates a commitment to
the maintenance of cultural pluralism even where this requires positive measures to be
taken by the state to ensure the survival and development of minority cultures where
they are threatened by disintegration. A state committed to cultural pluralism cannot
simply remain neutral as its cultural patrimony fades to a dull uniformity.
As for s 31’s principal avatar—art 27—academic opinion is divided on whether the
right requires positive measures in support of minority cultures. For some, the purpose
of the right is ‘laisser vivre, of allowing members of those minorities the right to
maintain their language or religion freely without any assistance from the state, but also
without any hindrance or oppression that has been the all too frequent burden of
minorities throughout human history’.19 However, the contrary opinion—that the right
necessarily requires positive measures—enjoys the high authority of the Human Rights
Committee:
Although the rights protected under art 27 are individual rights, they depend in turn on the
ability of the minority group to maintain its culture, language or religion. Accordingly,
positive measures by States may also be necessary to protect the identity of a minority and
the rights of its members to enjoy and develop their culture and language and to practice
their religion, in community with other members of their group.20
The Committee’s interpretation of art 27 may readily be adapted to s 31. The s 31 right
requires for its exercise the existence of an identifiable community practising a
particular culture or religion or speaking a particular language. Therefore, if as a result
of state action or inaction, that community loses its identity, if it is absorbed without
trace into the majority population, the individual right of participation in a cultural or
linguistic community will be harmed. Section 31 therefore certainly requires
non-interference with a community’s initiatives to develop and preserve its culture. In
addition, it is likely that it requires positive measures by the state in support of
vulnerable or disadvantaged cultural, religious and linguistic communities that do not
have the resources for such initiatives.21
(ii) The right to enjoyment of culture in community with others

The Constitution uses the term ‘culture’ or ‘cultural’ in two distinct senses. Schedule 4
indicates that concurrent national and provincial legislative competence is exercised on
18
S v Makwanyane 1995 (3) SA 391 (CC) [9]. See, further, Chapter 6 above.
19
De Varennes (note 17 above) 151.
20
General Comment (note 5 above) para 6.2.
21
Compare the remarks by Sachs J in Ex parte Gauteng Provincial Legislature: In re Dispute Concerning the
Constitutionality of Certain Provisions of the Gauteng School Education Bill of 1995 1996 (3) SA 165 (CC) [70]
and [90] (international law and the minority rights provisions of the interim Constitution require the state not to
interfere with initiatives by a minority to preserve and strengthen its culture, and might additionally require
measures of assistance to particularly threatened or disadvantaged cultures). On the link between this principle
and the principle of reasonable accommodation of religious practices, see Pillay (note 2 above) [73]: ‘sometimes
the community, whether it is the State, an employer or a school, must take positive measures and possibly incur
additional hardship or expense in order to allow all people to participate and enjoy all their rights equally’.
631
the subject of ‘cultural matters’. The adjective is used here to mean the practice of
intellectual and artistic activity and the works that result from this activity.22 Put simply,
culture means literature, music, painting, sculpture and theatre. This is culture ‘in the
reduced sense of the word, . . . everything that is picturesque, harmless and separable
from politics’.23
But a different use of the word is found in s 31 and in s 30 (the right of participation in
‘cultural life’). In these sections, culture means a particular way of life of an identifiable
group of people: s 31 does not refer to ‘culture’ in general, but to ‘their culture’.24 Used
in this sense, the word does the work of a number of competing or synonymous terms:
tradition, customs, civilisation, race, nation, folk-ways.25 Here, culture is understood as
a source of identity and as inseparably linked to one’s sense of self-worth and hence to
human dignity.26 It is a means of drawing distinctions between groups of people on
grounds of one or more of a number of characteristics such as their beliefs, knowledge,
language, rules of kinship, methods of education or forms of social relations.27 This
second sense of the word is wide enough to include the first sense. The activities of
writers, artists and musicians contribute in important ways to the cultural life of a
community, but are not themselves constitutive of that culture.
What communal practices would constitute ‘culture’ for purposes of s 31? A list of
the main forms of cultural existence would likely include institutions responsible for the
preservation and transmission of culture such as schools, libraries, publishing houses,
museums and religious institutions. Culture may include the promotion and publication
of literature and the arts, the practice of customs and traditions, the conservation of
historical objects and the commemoration of significant dates or events.28 However,
such a list could not hope to cover the possible field of reference of culture. Culture is a
complex social phenomenon, as much influenced by human intervention as it is an
influence on human conduct. However, for purposes of compliance with s 31,
international experience suggests that the institutional aspects of culture are likely to be
the focus of attention: schools, publications, libraries, museums, historical monuments,
places of worship.29 The right grants communities the freedom to establish and maintain
such institutions without interference from any source in order to ensure their survival as
a cultural entity. Certain institutional aspects of ‘cultural life’—namely language use at
22
R Williams Keywords: A Vocabulary of Culture and Society (1983) 90.
23
TS Eliot Notes Towards the Definition of Culture (1962) 93, quoted in C Kukuthas ‘Are There Any Cultural
Rights?’ in W Kymlicka (ed) The Rights of Minority Cultures (1995) 228.
24
See Hattingh v Juta 2012 (5) SA 237 (SCA) which deals with the right in s 6(2)(d) of the Extension of
Security of Tenure Act 62 of 1997 ‘to family life in accordance with the culture of that family’. This right was
held to give effect to the rights in s 30 and 31 of the Constitution. Since these rights were associative, a claim that
it was the ‘culture’ of a particular family for an occupier to live with her adult independent sons and
daughter-in-law could not succeed. It was necessary to show that this culture was shared by at least a portion of
the community [21]. On appeal, the Constitutional Court held that the Act’s conception of family was not
confined to the nuclear family and found it unnecessary to deal with the phrase ‘culture of that family’: Juta v
Hattingh 2013 (3) SA 275 (CC).
25
Pillay (note 2 above) [149] (O’Regan J): ‘the way of life of a particular community’.
26
See Pillay (note 2 above) [53].
27
M Leiris Race and Culture (1958) 20–21, quoted in P Thornberry International Law and the Rights of
Minorities (1991) 188.
28
F Capotorti Study on the Rights of Persons belonging to Ethnic, Religious and Linguistic Minorities (1991)
63–8.
29
Thornberry (note 27 above) 188.
632
official and unofficial levels,30 control by a cultural, linguistic or religious community of

the education of its members (s 29(3)), freedom of and state support for religious
practice (s 15)—are accorded specific protection in the Bill of Rights. The task of the
courts in interpreting s 31 will be to determine which other cultural institutions fall
within the protected ambit of culture. Once identified, s 31 requires the state at least to
refrain from threatening the existence of institutions in order not to prejudice an
individual’s right of participation in those institutions.
(iii) The right to practise a religion in community with others

This aspect of s 31 must obviously be read against the background of s 15, which
accords a right to freedom of religion. How does the protection of a right to religious
practice in community with others by s 31 differ from the right in s 15?
Section 15 protects religious liberty in the classic sense of a negative individual claim
to non-interference in the belief in and practice of religion or irreligion. For analytical
purposes, freedom of religion as envisaged in s 15 can be divided into four rights: (a)
freedom of religious choice; (b) freedom of religious observance; (c) freedom of
religious teaching; (d) freedom to propagate a religion.31 Of these four rights, the first is
clearly beyond the scope of s 31, since a choice to hold or not hold particular religious
beliefs does not relate to the practice of a religion in community with others. The
remaining three rights may receive additional protection under s 31 but only in so far as
the observance and dissemination of religious beliefs relates to the practice of a religion
in community with other practitioners. This means that atheism and agnosticism are not
covered by s 31, since such beliefs are merely held and not communally practised.
Section 31 therefore protects the practice of religion rather than religious belief.32
Moreover, it protects the communal aspects of religious practice rather than its purely
private aspects. As the Constitutional Court has put it:
Section 31(1)(a) emphasises and protects the associational nature of cultural, religious and
language rights. In the context of religion, it emphasises the protection to be given to
members of communities united by religion to practise their religion.33
The right allows the establishment and maintenance of the institutions and infrastructure
that make possible the practice of a religion. It grants a measure of autonomy to
religious communities to establish places of worship, schools, seminaries and burial
sites, to publish and distribute religious texts, to produce objects for religious rites and
the like.34 It does not offer protection against restrictions on the freedom of religious
practice which do not affect a religious community as such. Thus, drawing on examples
from US Supreme Court jurisprudence, army regulations prohibiting a Jewish
serviceman from wearing a yarmulke while in uniform would not engage s 31.35 On the
30
Sections 6, 30. Section 35 guarantees accused persons the right to be informed of their rights and to use a
language they understand in criminal proceedings. See para 32.9 in Chapter 32 below.
31
Y Dinstein ‘Freedom of Religion and Religious Minorities’ in Y Dinstein & M Tabory (eds) The Protection
of Minorities and Human Rights (1992) 145, 147.
32
Christian Education South Africa v Minister of Education 2000 (4) SA 757 (CC). Pillay (note 2 above)
[146] (O’Regan J) (the right to freedom of religion protects sincerely held religious beliefs that might be entirely
personal and not associative at all).
33
Prince v President, Cape Law Society 2002 (2) SA 794 (CC) [39] (individual (s 15) and associational rights
(s 31) to use cannabis for religious purposes justifiably limited by prohibition of possession of cannabis).
34
Dinstein (note 31 above).
35
Though, arguably, the prohibition would infringe s 15. See Goldman v Weinburger 475 US 503 (1986).
633
other hand, a measure that required orthodox Jewish congregations to cease the sexual
segregation of places of worship would implicate the section.36 Where a measure or
action interferes with a religious community’s ability to engage in the public practice of
its religion, s 31 protects against such interference.37
(iv) The right to use a language of choice

Specific protection of an individual right to speak a language is unnecessary, since the
protection of a right of enjoyment of culture implies protection of the linguistic medium
through which that culture finds expression and through which enjoyment takes place.38
Nevertheless, a right to use a language, along with a prohibition of discrimination on
grounds of language, appears in all the principal international minority protection
clauses.39 While the enumeration of a right to language use indicates the importance
accorded by both international human rights law and the Constitution to this particular
aspect of cultural life, it is unclear what the practical implications of the right will be.
Clearly the language right has a negative dimension, allowing free use by an
individual of a language without interference from private or public sources. This right
is bolstered by the prohibition of language-based discrimination contained in s 9 and by
the right of freedom of expression in s 16. Section 31 thus accords a right similar to that
guaranteed in more detailed terms in a number of post-World War I Minorities Treaties.
For example Article 7 of the Treaty between the Allied Powers and Poland (1919)
provided that ‘. . . [n]o restriction shall be imposed on the free use by any Polish national
of any language in private intercourse, in commerce, in religion, in the press or in
publications of any kind, or at public meetings.’ Legislation preventing the use of a
particular language in public places,40 in schools or universities,41 commerce, or the
press or broadcasting media42 would be a prima facie violation of s 31. The same would
36
See Roberts v United States Jaycees 468 US 609 (1984) (a local ordinance prohibiting sex discrimination in
any ‘place of public accommodation’ might extend to synagogues, in which case an exemption for religious
associations would be required).
37
See, for example, Wisconsin v Yoder 406 US 205 (1972) where the US Supreme Court held that a school
attendance law violated the right to free exercise of religion where its effect was to require attendance at school of
children of the Amish religious community. The Amish wish to educate young children at home was ‘not merely
a matter of personal preference, but one of deep religious conviction, shared by an organised group’. Compliance
with the attendance law carried with it ‘a very real threat of undermining the Amish community and religious
practice as they exist today; they must either abandon belief and be assimilated into society at large, or be forced
to migrate to some other and more tolerant religion’ (216–218).
38
39
Besides art 27, mention can also be made of art 30 of the UN Convention on the Rights of the Child (1989).
40
In some cases, a state has prohibited the use of a minority language in public places. For example, the
Turkish Anti-Terrorist Act 3713 of 1991 prohibits the use of the Kurdish language in public places. Similarly,
Algerian legislation makes it an offence to hold public meetings or conferences or to put up signs or posters in
any other domestic language except Arabic. The prohibition effectively prevents the Berber minority from using
its language in the named situations. De Varennes (note 17 above) 164–5.
41
See Meyer v Nebraska 262 US 390 (1923) (statute prohibiting the teaching of any language other than
English to students who had not passed the eighth grade violates due process). Frequently states with large
populations of immigrants impose an obligation on pupils in state schools to speak only the official language of
instruction while on school premises. Arguably, this would be a clear violation of s 31 should it seek to prohibit
the use of a language by pupils in their free time or in private communication with their fellows. See De Varennes
(note 17 above) 165.
42
Clearly, governmental restrictions on the language of private media (for example, by banning publications in
a particular language) would violate s 31. More difficult, however, is the exercise of state control over radio and
television frequencies. Since the airwaves are a public good, the state is entitled to control access and is not
obliged by the requirements of s 31 to allow unrestricted access to the airwaves by linguistic minorities, but
634
hold true of restrictions imposed by a private individual. Should, for example, an

employer seek to restrict the use of a language by its employees while at work, this may
constitute a violation of s 31.43
Besides the negative aspects of the right—the freedom to use a language in private
and public and to establish and maintain institutions disseminating a language—
international language rights guarantees contain an additional positive dimension. It is
recognised that linguistic equality cannot be achieved by the mere prohibition of
measures placing the speakers of different languages on an unequal footing. States
should therefore strive to achieve equality in fact between speakers of different
languages.44 States are frequently enjoined to promote minority language use through
institutional mechanisms such as official language policies, measures promoting
mother-tongue education and permitting the use of a language of choice in court
proceedings.45 The Constitution contains provisions dealing specifically with each of
these issues.46 It appears then that even if the language right in s 31 is interpreted to
require positive measures promoting language use, much of the work of the language
right will have been done by other provisions of the Constitution.
(d) The right to form, join and maintain cultural, religious and linguistic
associations
Section 31(1)(b) uses some of the language of CP XII: ‘Collective rights of
self-determination in forming, joining and maintaining organs of civil society, including
linguistic, cultural and religious associations, shall, on the basis of non-discrimination
and free association, be recognised and protected’. The subsection adds little to the
guarantees contained in s 31(1)(a), and it was obviously included with an eye to
achieving compliance with the Principle.
The Constitutional Court noted in its Second Certification judgment that the
‘[c]ollective rights of self-determination’ in CP XII were ‘associational individual
rights, namely, those rights which cannot be fully or properly exercised by individuals
otherwise than in association with others of like disposition’.47 These rights are
specifically conferred in s 31(1)(b) on persons belonging to cultural, religious and
linguistic communities. They are conferred universally elsewhere in the Constitution:
notably in the individual rights of association in the Bill of Rights including freedom of
association (s 18), freedom to form and participate in the activities of political parties
(s 19), and freedom to form and join a trade union or employers’ organisation and
rather simply to exercise its control over such access in a non-discriminatory manner. See De Varennes (note 17
above) 164.
43
See Gutierrez v Municipal Court 838 F 2d 1031 (9th Cir. 1988) (rules prohibiting employees from speaking
any language other than English while at work discriminatory against minorities because the cultural identity of
certain minority groups is tied to their use of their own language).
A requirement that employees use a particular common language while on duty in order to facilitate
communication might be a reasonable limitation of the right. The same is not true of a prohibition on the use of
a particular language while on a break or during an employee’s free time.
44
45
Capotorti (note 28 above) 75–89.
46
Sections 6, 29(2), 35(3)(k), 35(4).
47
Certification of the Amended Text of the Constitution of the Republic of South Africa, 1996 1997 (2) SA 97
(CC) [23]–[27].
635
participate in its activities (s 23) together with the procedural provisions allowing their
collective enforcement.48
What are ‘organs of civil society’? ‘Civil society’ is generally understood to mean the
private and unofficial associations of the citizens of a state. For purposes of s 31 organs
of civil society obviously include such examples of cultural and religious associations as
schools, churches, seminaries, publishing houses, theatres, and radio and television
stations. Also included would be associations for the purpose of promotion of minority
cultural, linguistic or religious interests through political means.49 Section 31(1)(b) says
explicitly what s 31(1)(a) implied: persons may, in community with others, form, join
and maintain such associations without interference from the state or any other source.
Again, as with s 31(1)(a), the right of an individual to ‘join’ an association must be
balanced against the right of other individuals to ‘maintain’ the association, sometimes
by restricting access to those who fail to meet the association’s criteria for membership.
(e) Consistency with the Bill of Rights

The inclusion of the requirement that the exercise of minority rights may not be
inconsistent with other fundamental rights is a reminder that the constitutional
protection of community identity is not a licence to that community to violate the rights
of its members or anyone else. The Bill of Rights is primarily an individualistic
document. While it contains provisions supportive of group solidarity and continuity, it
places them in the context of a list of rights aimed at guaranteeing individual freedom
and equality. Constitutional protections of communal aspects of culture, religion and
language have been phrased in the hope that they will not unjustifiably impinge on the
field of individual rights. So, on the one hand, the Constitution values membership of
collective cultural institutions and concomitantly requires protection of the existence of
those institutions. On the other hand, the Constitution values individual rights and
freedoms. Where individual rights are prejudiced by the practices of cultural
institutions, the protection of those rights may undermine the autonomy and identity of
the cultural institution.50 Nevertheless, to claim any coherence, the Constitution must be
interpreted as respecting collective cultural institutions and practices only in so far as
those institutions and practices are compatible with the Constitution’s list of
fundamental rights.51
48
Section 38 permits the rights in the Bill of Rights to be enforced by an association acting in the interest of its
members, and a person acting in the interest of a group or class of persons.
49
An example of a law that would fall foul of s 31(1)(b) (and the right to use a language in public and private
in s 31(1)(a)) is a July 1989 Algerian law on political parties which prohibits the registration as a party of a group
‘based exclusively on a particular religion, language, region, sex or race’. The law also states that parties may
only use Arabic in their public communiqués. De Varennes (note 17 above) 159.
50
For example, it is often argued that assertions of individual equality rights by women subject to indigenous
law would threaten the entire edifice of indigenous law, premised as it is on ineluctably patriarchal practices and
structures.
51
In his concurring judgment in the Gauteng School Education Bill case (note 21 above), Sachs J pointed out
the value placed by the Constitution on equality. The protection of ‘diversity’ by way of minority rights had, by
comparison, ‘markedly less constitutional pungency’. This meant that the first obligation of the Constitution was
to achieve and protect equality. Minority rights must, where in competition with equality, defer to this obligation:
‘the dominant theme of the Constitution is the achievement of equality, while considerable importance is also
given to cultural diversity and language rights, so that the basic problem is to secure equality in a balanced way
which shows maximum regard for diversity’ [52]. Though a balancing process is required, it appears that, for
Sachs J at least, the equality right will be accorded more weight when measured against rights to minority
protection. See also Radio Pretoria v Chairman, Independent Communications Authority of SA 2003 (4) BCLR
636
An illustration of the effect of s 31(2) is provided by Christian Education SA v

Minister of Education.52 The applicant challenged the constitutionality of s 10 of the
South African Schools Act 84 of 1996, which prohibited the administration of corporal
punishment in schools. The applicant described itself as an association representing 196
independent schools which maintained ‘an active Christian ethos by providing an
environment where their learners can learn in keeping with their Christian faith’. The
prohibition of corporal punishment, it was argued, was a violation of religious and
cultural freedom, since ‘corporal correction’ of children was, according to the applicant,
‘a vital element of the Christian religion’.
The High Court held that the applicant had not shown that the belief in corporal
punishment was in fact a sincerely-held religious belief, nor that the prohibition
constituted a substantial burden on the freedom of religion of the association’s members,
since other forms of punishment and correction of children that were acceptable to the
members were not prohibited by the Act. As for the argument that the prohibition was a
violation of the right to practise a religion in community with others in s 31(1), the court
held that because corporal punishment was an infringement of other rights in the Bill of
Rights (dignity, freedom from degrading punishment),
to allow corporal punishment to be administered at Applicant’s schools, even if it is done in
the exercise of the religious beliefs or culture of those involved, would be to allow the
applicant’s members to practice their religion or culture in a manner inconsistent with the
Bill of Rights in contravention of s 31(2) of the Constitution.53
The association appealed to the Constitutional Court, which declined to decide whether
the prohibition of corporal punishment was a violation of s 31 or whether corporal
punishment was a practice inconsistent with the Bill of Rights for purposes of s 31(2).
The decision was instead taken on the basis of the limitation clause. On the assumption,
for purposes of argument, that the prohibition was an infringement of s 31, the
infringement was held to be a reasonable and justifiable limitation of the right. The court
made the following remarks about s 31(2):
Section 31(2) ensures that the concept of rights of members of communities that associate
on the basis of language, culture and religion, cannot be used to shield practices which
offend the Bill of Rights. These explicit qualifications may be seen as serving a double
purpose. The first is to prevent protected associational rights of members of communities
from being used to ‘‘privatise’’ constitutionally offensive group practices and thereby
immunise them from external legislative regulation or judicial control. This would be
particularly important in relation to practices previously associated with the abuse of the
notion of pluralism to achieve exclusivity, privilege and domination. The second relates to
oppressive features of internal relationships primarily within the communities concerned,
421 (T) (equality rights trump decision of radio station broadcasting to ‘Boere-Afrikaner’ community to employ
only members of that community).
In Shilubana v Nwamitwa 2009 (2) SA 66 (CC) [68] the principle of consistency of cultural practices with the
Bill of Rights was a factor in determining whether a development of the customary law of a particular community
to permit a woman to become chief had acquired the status of law. See also Gumede v President of the Republic
of South Africa 2009 (3) SA 152 (CC) [22] (a legitimate object of law reform to have a flourishing and
constitutionally compliant customary law that lives side by side with the common law and legislation).
52
Christian Education SA v Minister of Education 1999 (4) SA 1092 (SE).
53
Ibid 965.
637
where s 8, which regulates the horizontal application of the Bill of Rights, might be specially
relevant.54
28.3 A RIGHT OF PARTICIPATION IN CULTURAL LIFE: S 30

Section 30 is the equivalent of s 31 of the interim Constitution which was the sole
expression in the interim Bill of Rights of an individual right to non-interference in
aspects of culture and language. The individualistic phrasing of the s 30 right made it
unclear whether it could ground claims for the protection of the existence and identity of
cultural and linguistic communities. The inclusion of s 31 in the 1996 Bill of Rights—a
full-blown right of individual members of cultural, linguistic and religious communities
to tolerance and support of the practices of those communities—has made this dispute
academic. Section 31 now does the work of protecting communal interests in culture,
religion and language. All that is left for s 30 to do is to provide an additional ground for
protection of an individual’s interest in joining or retaining associations with a particular
cultural community.
The individual right to use a language of choice in s 30 has been made superfluous by
the inclusion of the right to use a language in community with others in s 31. It is
difficult to conceive of an individual interest in using a language that is not at the same
time an interest shared by other speakers of the language.
28.4 ASSOCIATIVE EDUCATION RIGHTS
(a) Right to instruction in the official language of choice

Education rights are essentially rights to positive action, since they can only be assured
by collective action, by society assuming the task of promoting education. The
education right in the Constitution divides this task between the state on the one hand
and private individuals and institutions on the other. The state is obliged to provide basic
education in an official language of choice where reasonably practicable. It is obliged
similarly to provide access to further education in an official language of choice, again
where this is reasonably practicable. Space is created for the establishment of privately
funded educational institutions by the requirement, in s 29(3), that there may be no
interference with the establishment and maintenance of such institutions.
For linguistic minorities public education in the majority language can be particularly
burdensome. The academic performance of minority children could be prejudiced by
having to be taught in a language that is not their mother tongue.55 Moreover, in their
formative years, children of minorities would not be exposed to their language in school,
impeding the development of written and spoken fluency in their mother tongue.56 In
spite of this burden, it is generally accepted that there is no unqualified right to
mother-tongue education in state schools.57 Recognition of such a right would clearly be
54
Note 32 above [26].
55
Head of Department, Mpumalanga Department of Education v Hoërskool Ermelo 2010 (2) SA 415 (CC)
[50].
56
De Varennes (note 17 above) 157.
57
Belgian Linguistics Case 1 EHRR 252 (1965) (the European Charter does not guarantee a child the right to
obtain instruction in a language of his or her choice). See also Laerskool Middelburg v Departementshoof,
Mpumalanga Departement van Onderwys 2003 (4) SA 160 (T) (conversion of Afrikaans-medium public school
to dual-medium school not detracting from right to education in language of choice).
638
too unwieldy to be realistic, particularly in a multilingual country such as South

Africa.58 Instead, the Constitution recognises a right only to publicly funded
mother-tongue education in an official language. Nevertheless, given that there are
eleven official languages, the right imposes potentially onerous positive obligations. The
subsection therefore contains an internal modifier. The right may only be claimed where
instruction in an official language of choice is ‘reasonably practicable’.59
Where a learner already enjoys the benefit of being taught in an official language of
choice the state bears the negative duty not to take away or diminish the right without
appropriate justification.60
The standard of reasonable practicability is objective and justiciable. It will depend
on all the relevant circumstances of each particular case. These would include the
availability of and accessibility to public schools, their enrolment levels, the medium of
instruction of the school that its governing body has adopted, the language choices that
learners and their parents make, and the curriculum options offered.61
In addition, the state is obliged to consider all reasonable educational alternatives
which are not limited to, but include, single-medium institutions. In resorting to an
option, such as a single or parallel or dual medium of instruction, the state must take into
account what is fair, feasible and satisfies the need to remedy the results of past racially
discriminatory laws and practices.62
The standard of reasonableness means that where mother-tongue education is not
provided there must be an objective justification for the denial of the right.63
International practice suggests that denial of the right can be justified by reference to a
sliding-scale formula.64 The larger the numbers of speakers of a language in a particular
area, the greater is the obligation to provide mother-tongue education in that language in
that area.65 The higher the level of education, the less pressing is the obligation to
provide mother-tongue education in all the languages of a region.66
(b) Right to establish private educational institutions

Section 29(3) amplifies the interim Constitution’s commitment to respect for cultural
life. Participation in cultural life is hardly possible without the right to learn about a
particular culture and to teach it.67 The subsection envisages the establishment of
‘independent’ schools (ie schools other than those established by the public authorities)
58
In addition to recognising eleven official languages, the Constitution lists eleven further languages
‘commonly used by communities in South Africa’ (s 6(4)). See Currie (note 4 above).
59
The right is given effect to by s 6(2) of the Schools Act 84 of 1996, read with the Norms and Standards
Regarding Language Policy in Public Schools (1997). See the discussion in Liebenberg Socio-Economic Rights
249–254.
60
Hoërskool Ermelo (note 55 above) [52].
61
Ibid [52].
62
Ibid [53].
63
Belgian Linguistics Case (note 57 above) 284–285 (the denial of mother-tongue education may not be for
arbitrary reasons but must have an objective and reasonable justification).
64
De Varennes (note 17 above) 201–206.
65
See Hoërskool Ermelo (note 55 above) [104] (court ordering the department to report on the likely demand
for English medium instruction at grade 8 level in the circuit of Ermelo).
66
See art 8 of the European Charter for Regional or Minority Languages (1992) for an example of such a
formula.
67
Minority Schools in Albania Case 1935 PCIJ (Ser A/B) No 64, 20 (minorities desire to preserve their ‘racial
peculiarities, their traditions and their national characteristics’, to which end they are entitled to their own schools
and other educational establishments).
639
catering for the particular needs of cultural, linguistic and religious communities. The
section does not place anything more than a negative obligation on the part of the state
not to interfere in the establishment of such schools.68
In the Gauteng School Education Bill case, it was argued on behalf of the petitioners
that s 29(3)’s predecessor—s 32(c) of the interim Constitution—creates a positive
obligation on the state to accord to every person the right to require the state to establish,
where practicable, educational institutions based on a common culture, language or
religion. On the strength of this interpretation of s 32(c), it was contended that the
government was not entitled to prohibit language competence testing as an admission
requirement or direct what religious policy should be developed or who should or
should not attend religious classes at schools so established.69 The Constitutional Court
held that neither the language of the subsection itself nor the language and historical
context of the Constitution as a whole supported the argument that every person can
demand from the state the establishment of schools based on a common culture,
language or religion. Rather, s 32(c) provides that every person shall have the right to
establish such educational institutions and may invoke the protection of the court where
that right is threatened. Section 32(c) does not support a claim that educational
institutions based on a commonality of culture, language or religion, must be established
by the state, or a claim that any person is entitled to demand such establishment,
notwithstanding the fact that his or her right to basic education and to instruction in the
language of his or her choice is, where practicable, otherwise being satisfied by the
state.70
The qualification of the right to establish private schools by the requirement that the
schools are registered with the state and maintain standards accords with international
law. The exemplary formulation of minority educational rights is the 1960 UNESCO
Convention against Discrimination in Education. Like s 29(3)(a) to (c), arts 2(b), 5(b)
and 5(c) of the Convention grant a right to the creation of private educational institutions
other than those maintained by the public authorities. The Convention considers in some
detail the precise parameters of this right. In the case of minorities, art 5(c) declares that:
It is essential to recognise the right of members of national minorities to carry on their own
educational activities, including the maintenance of schools and depending on the
68
Thus in the Minority Schools in Albania Case (ibid) the Permanent Court found that abolition of all private
schools in Albania was a violation of the rights of the Greek minority to equality of treatment. The abolition
would deprive the minority of the institutions necessary to transmit its culture from generation to generation. The
needs of the majority by contrast would continue to be met by public schools. In the Gauteng School Education
Bill case (note 21 above), Mahomed DP found at [9] that the protection afforded by s 32(c) of the interim
Constitution was particularly important in the light of South African history. From the 1950s onward, the
government actively discouraged and effectively prohibited private educational institutions from establishing or
continuing private schools. Instead, the Bantu Education Act 47 of 1953 subjected the establishment and
administration of such schools to state control.
69
Gauteng School Education Bill (note 21 above). The petitioners contested the validity of ss 19, 21 and 22 of
the School Education Bill 1995 of the Gauteng province. Section 19(1) provided that ‘[l]anguage competence
testing shall not be used as an admission requirement to a public school’. Section 21 provided for the formulation
of a religious policy by the governing body of a public school within a framework of specified principles, subject
to the approval of the provincial MEC for Education and subject to the power of the MEC to direct that a
governing body reformulate a religious policy if it failed to comply with the principles or with the Constitution.
Section 22 provided generally for freedom of conscience and specifically that pupils at a public school had the
right not to attend religious education classes and religious practices at that school.
70
Ibid [9].
640
educational policy of each State, the use or the teaching of their own language, provided
however:
(i) That the right is not exercised in a manner which prevents the members of these
minorities from understanding the culture and language of the community as whole and
from participating in its activities, or which prejudices national sovereignty;
(ii) That the standard of education is not lower than the general standard laid down or
approved by the competent authorities; and
(iii) That attendance at such schools is optional.
In effect, the Convention declares the right to be available only where certain minimum
standards, including standards laid down as general educational policy by the state, can
be met. Thus the state is permitted to set out the conditions for the exercise of the right.
A further internal limitation on the right prohibits the establishment of educational
institutions that discriminate on the basis of race.71 Behind this specific prohibition is
the assumption that a measure of discrimination may be necessary in the exercise of
the right. A cultural, religious and linguistic community may, for example, wish to
set up schools admitting only female pupils,72 or pupils practising a particular
religion or speaking a particular language.73 While such discrimination may in the
circumstances not be unfair or unreasonable, s 29(3)(a) expressly prohibits
admissions criteria based solely on race. Should the state wish to regulate or prohibit
admissions criteria predicated on grounds other than those of race, its actions will
require justification under the general limitation provision.
Wittmann v Deutscher Schülverein, Pretoria74 involves an application of the right
to maintain private educational institutions in the horizontal dimension. A
German-medium private school required its pupils to attend religious instruction
classes. The classes were academic in nature, and the attendance requirement was
motivated by the school’s conviction that ‘knowledge of the cultural background
inclusive of religion was vital for the comprehension of the German language,
literature and history’.75 The applicant, the mother of a pupil at the school, objected
to this requirement as a violation of freedom of religion. Van Dijkhorst J held that
there was no violation of the right to freedom of religion under s 14(2) of the
interim Constitution because the school was not an organ of state and therefore not
bound by the interim Bill of Rights. In any event, Van Dijkhorst J held, the right to
freedom of religion had been waived in this case by the applicant submitting to the
school’s constitution and rules (which included the religious instruction requirement)
71
Article 2(c) of the UNESCO Convention Against Discrimination in Education 1960 similarly permits the
establishment or maintenance of private educational institutions ‘if the object of the institutions is not to secure
the exclusion of any group but to provide educational facilities in addition to those provided by the public
authorities, if the institutions are conducted in accordance with that object, and if the education provided
conforms with such standards as may be laid down or approved by the competent authorities, in particular for
education of the same level’.
72
Article 2(a) of the UNESCO Convention Against Discrimination in Education 1960 provides that the
establishment or maintenance of separate educational systems or institutions for pupils of the two sexes does not
constitute discrimination under the Convention if these systems or institutions provide equivalent access to
education, equally qualified staff, premises and equipment of the same quality and afford the opportunity to take
the same or equivalent courses of study.
73
Article 2(b) of the UNESCO Convention provides that the establishment or maintenance of separate
educational systems or institutions for religious or linguistic reasons shall not constitute discrimination under the
Convention if participation in these systems or attendance at such institutions is optional and if the education
provided conforms to such standards as may be laid down or approved by the competent authorities.
74
Wittmann v Deutscher Schülverein, Pretoria 1998 (4) SA 423 (T).
75
Ibid 432F–G.
641
when she enrolled her daughter. Support for the waiver argument was found in
s 32(c) of the interim Constitution (the equivalent of s 29(3)). The right to ‘maintain’
private educational institutions based on culture, language or religion must include
the right to exclude non-adherents or non-participants from those institutions. ‘In
respect of these educational institutions the fundamental freedom of religion of
“outsiders” is limited to the freedom of non-joinder. Outsiders cannot join on their
own terms and once they have joined cannot impose their own terms.’76 This
indicated that waiver of the exercise of the right to religious freedom was
constitutionally acceptable in respect of private educational institutions.77
76
Ibid 455A–B.
77
On waiver, see para 3.3(a)(iii) in Chapter 3 above.
642
Chapter Twenty-nine
Just Administrative Action

by Cora Hoexter*
29.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 644

29.2 The relationship between the Constitution, the PAJA and the
common law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 646
(a) The constitutionalisation of administrative law . . . . . . . . . . . . . . . . . . . 647
(b) Judicial review governed by the PAJA . . . . . . . . . . . . . . . . . . . . . . . . . . . 648
(i) The suspension of s 33 and the interim administrative-
justice right. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 648
(ii) The purpose of the PAJA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 649
(iii) The relationship between the PAJA and s 33 of the
Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 649
(iv) The relationship between the PAJA and the common law. . . 651
(v) The relationship between the PAJA and other legislation . . . 652
(vi) The PAJA and special statutory review . . . . . . . . . . . . . . . . . . . . . 652
29.3 Application of the rights to just administrative action . . . . . . . . . . . . . . . . 653
(a) The constitutional conception of administrative action . . . . . . . . . . . 653
(b) Administrative action in the PAJA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 654
(i) Decisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 656
(aa) Decisions ‘of an administrative nature’ . . . . . . . . . . . . . . . . 657
(bb) Decisions made ‘under an empowering provision’ . . . . . 658
(ii) Organs of state and natural or juristic persons. . . . . . . . . . . . . . . 658
(iii) The exercise of public power or performance of a public
function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 659
(iv) Acting in terms of any legislation (or empowering provi-
sion). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 660
(v) Adversely affecting rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 661
(aa) Deprivation and determination approaches . . . . . . . . . . . . . 661
(bb) The ‘capacity to affect legal rights’ . . . . . . . . . . . . . . . . . . . . 661
(cc) Whose rights must be adversely affected?. . . . . . . . . . . . . . 662
(vi) Direct, external legal effect. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 663
(aa) ‘Direct, external legal effect’ in German law. . . . . . . . . . . 663
(bb) ‘Direct, external legal effect‘ in South African law . . . . 664
(vii) The exclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 665
29.4 Lawful administrative action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 666
(a) Under the Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 666
(b) Under the PAJA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 667
* Professor of Law, University of the Witwatersrand, Johannesburg.
643
(c) Under the principle of legality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 668

29.5 Reasonable administrative action. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 669
(b) Under the PAJA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 669
(c) Under the principle of legality and the rule of law . . . . . . . . . . . . . . . 671
29.6 Procedurally fair administrative action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 672
(b) Under the PAJA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 674
(i) Administrative action affecting any person: section 3 of the
PAJA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 674
(aa) The scope of s 3(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 675
(bb) Section 3(1) and ‘rights’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 676
(cc) The content of procedural fairness . . . . . . . . . . . . . . . . . . . . . 677
(ii) Administrative action affecting the public: s 4 of the PAJA . 678
(aa) The scope of s 4: what is administrative action that
affects the rights of the public?. . . . . . . . . . . . . . . . . . . . . . . . . 680
(bb) The content of s 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 681
(c) Procedural fairness under the principle of legality. . . . . . . . . . . . . . . . 682
29.7 The right to reasons for administrative action. . . . . . . . . . . . . . . . . . . . . . . . . 682
(a) Triggering the right to reasons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 683
(b) Adequate reasons. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 685
(c) Requests. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 686
(d) A right to reasons in the absence of a request? . . . . . . . . . . . . . . . . . . . 687
(e) Reason-giving under the principle of legality . . . . . . . . . . . . . . . . . . . . 688
29.8 The development of the principle of legality and its implications . . . . 688
Just administrative action

33. (1) Everyone has the right to administrative action that is lawful,
reasonable and procedurally fair.
(2) Everyone whose rights have been adversely affected by
administrative action has the right to be given written reasons.
(3) National legislation must be enacted to give effect to these rights,
and must—
(a) provide for the review of administrative action by a court or, where
appropriate, an independent and impartial tribunal;
(b) impose a duty on the state to give effect to the rights in
subsections (1) and (2); and
(c) promote an efficient administration.
29.1 INTRODUCTION
The entrenchment of fundamental principles of administrative law in the Bill of Rights
must be seen against the background of a long history of abuse of governmental power
in South Africa. Particularly in its latter years, the apartheid regime was characterised by
644
Just Administrative Action 29.1
executive autocracy. The range and scope of the discretionary powers of government
officials was constantly expanded by legislation, while the courts’ common-law
authority to review the exercising of that discretion was often restricted or ousted.
Furthermore, the apartheid-era courts were often unenthusiastic about exercising their
remaining powers of review to constrain administrative power.1
The Constitution seeks to prevent this history from being repeated by protecting the
judicial review of administrative power from legislative interference and by providing
individuals with justiciable rights to claim relief from the effects of unlawful
administrative action.2 The Constitution requires the administration to act in accordance
with fundamental principles of justice, fairness and reasonableness. It prohibits the
legislatures from allowing any departure from these principles and requires Parliament
to enact legislation to govern the performance of administrative action and judicial
review of such action.
Prior to the interim Constitution, the superior courts possessed a common-law power
(often described as an ‘inherent’ power) to review administrative action.3 The body of
legal principles and rules developed by the courts in the course of their application of
this power is referred to as administrative law.4 When administrative officials or bodies
exceeded their statutory powers, failed to perform their statutory duties or otherwise
failed to meet the standards imposed on them by law, aggrieved persons could challenge
their actions and decisions in the superior courts by means of an application for judicial
review. However, there was a fundamental constraint on the common-law review
powers of the Supreme Court. This was the constitutional system of legislative
supremacy.5 Although the courts could review the lawfulness of the actions of the
administration, Parliament ultimately had the power to determine what was lawful and
what was not. In addition, Parliament could prevent (or at least try to prevent) the courts
from reviewing certain administrative actions by means of ouster clauses.6
The interim Constitution brought in a new era of administrative law. The review
power of the courts was no longer grounded in the common law, and thus it was no
longer susceptible to being restricted or ousted by legislation. Instead, the Constitution
1
See S Ellmann In a Time of Trouble: Law and Liberty in South Africa’s State of Emergency (1992); R Abel
Politics by Other Means: Law in the Struggle Against Apartheid, 1980–1994 (1995). For a comprehensive
treatment of administrative-law jurisprudence during this period, see D Dyzenhaus Hard Cases in Wicked Legal
Systems: South African Law in the Perspective of Legal Philosophy (1991).
2
E Mureinik ‘A Bridge to Where?’ (Bill of Rights seeks to create a culture of justification, and the
administrative justice clause plays a prominent role in this project).
3
Johannesburg Consolidated Investment Co v Johannesburg Town Council 1903 TS 111, 115: ‘Whenever a
public body has a duty imposed on it by statute, and disregards important provisions of the statute, or is guilty of
gross irregularity or clear illegality in the performance of the duty, this Court may be asked to review the
proceedings complained of and set aside or correct them. This is no special machinery created by the Legislature;
it is a right inherent in the Court’.
4
A more precise term is ‘general administrative law’, as distinguished from particular administrative law.
According to Baxter, general administrative law consists of the ‘general principles of [common] law which
regulate the organisation of administrative institutions and the fairness and efficacy of the administrative process,
govern the validity of and liability for administrative action and inaction, and govern the administrative and
judicial remedies relating to such action or inaction’: L Baxter Administrative Law (1984) 2. Particular
administrative law comprises the legislation that governs and the legal rules, principles and policies that have
been developed in respect of specific areas of administration, such as licensing, public procurement, land-use
planning or civil aviation.
5
Legislative supremacy, also known as parliamentary sovereignty, is discussed in Chapter 1 above.
6
On ouster clauses, see para 29.4 below.
645
conferred a fundamental right to administrative justice7 and, thanks to the doctrine of

constitutional supremacy, prevented legislation from infringing on that right.
The 1996 Constitution similarly protects three fundamental rights of particular
significance to administrative law: a right to have disputes settled by a court or other
independent forum (such as an administrative tribunal);8 a right of access to information
held by the state;9 and, thirdly, rights to just administrative action, which consist of a
right to lawful, reasonable and procedurally fair administrative action and a right to be
given written reasons for administrative action.10 Thus the legislatures can no longer
simply authorise the administration to depart from the fundamental principles of
administrative justice that have been guaranteed in the Constitution. Any such
authorisation would have to be justified under the limitation clause, s 36, in order to be
constitutionally acceptable.
The Constitution confers wide standing to enforce constitutional rights.11 Further-
more, it establishes a number of state institutions to further the goals of lawful and
efficient administration, notably the Public Protector and the Auditor-General.12 Chapter
10 of the Constitution sets out the principles that must govern public administration in
all spheres of government, organs of state and public enterprises, and establishes a
Public Service Commission to promote these principles.
The enactment of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) is a
further significant development in the field of administrative law in South Africa. The
Act provides a legislative basis for the review of administrative action and sets out
procedures to be followed by administrators before certain decisions or rules are made.
29.2 THE RELATIONSHIP BETWEEN THE CONSTITUTION, THE PAJA AND THE
COMMON LAW
Before 1994, judicial review of administrative action had a common-law basis. With the
coming into force of the interim Constitution (and later the 1996 Constitution), the
common-law rules and principles pertaining to judicial control of public power were
subsumed by the Constitution, and judicial review acquired a constitutional basis. In
essence, this meant that challenges to the validity of administrative action involved the
direct application of the administrative-justice rights in the Constitution. Since
commencement of the PAJA, however, judicial review of administrative action
generally has a legislative basis. In other words, it is based on the rights, duties and
remedies provided for in the Act itself. The rights to just administrative action in the
Constitution now play an indirect rather than direct role in judicial review.13
That said, litigants do not invariably rely on the PAJA. These days a considerable
proportion of judicial review of official action takes place by virtue of the rule of law, a
value on which the democratic state is founded,14 sometimes with the effect of
7
8
Section 34.
9
Section 32(1)(a).
10
Section 33.
11
Section 38.
12
Section 181.
13
On the distinction between direct and indirect application of the Bill of Rights more generally, see Chapter
3 above.
14
In terms of s 1(c) of the Constitution.
646
sidestepping the PAJA altogether. There is also the possibility of special statutory
review in some cases, which is to say that the particular enabling legislation with which
the case is concerned may itself provide for judicial review.
Each of the points made in this summary will now be considered in greater detail.
(a) The constitutionalisation of administrative law

The constitutional right to just administrative action entrenches fundamental principles
of administrative law that were developed by the courts in the exercise of their
common-law review powers. The entrenchment of these rights ‘constitutionalised’
administrative law. In the six-year period between the commencement of the interim
Constitution and before the enactment of the Promotion of Administrative Justice Act 3
of 2000 (PAJA), challenges to the validity of administrative action were therefore direct
applications of the constitutional rights to administrative justice.
The Pharmaceutical Manufacturers case15 held that there was no separate
common-law cause of action for challenges to an exercise of public power. In other
words, an allegation that a particular exercise of public power is reviewable amounts to
an allegation that it is unconstitutional:
The common-law principles that previously provided the grounds for judicial review of
public power have been subsumed under the Constitution and, insofar as they might
continue to be relevant to judicial review, they gain their force from the Constitution.16
The word ‘subsume’ means to incorporate or absorb. To put it another way, the
common-law rules and principles providing for judicial control of public power were
incorporated into the Constitution and ceased to have an independent existence. ‘There
are not’, the Constitutional Court held, ‘two systems of law’, but only one—a system
governed by the Constitution.17 In relation to exercises of public power administrative
law had, in short, become part of constitutional law.
In Pharmaceutical Manufacturers the Constitutional Court went on to hold that
bringing an Act of Parliament into operation is an exercise of public power, and
subject to constitutional constraint. However, the exercise of the power is not
‘administrative action’, and is therefore not subject to the specific discipline of the
administrative-justice rights in the Bill of Rights. ‘Administrative action’ is thus a
sub-category of the wider category ‘exercises of public power’. As will be set out in
greater detail below, administrative action is conduct of an administrative nature
performed by public authorities or private persons and entities when they exercise
public powers or perform public functions.
Following the reasoning of the Constitutional Court, after the interim Constitution
any challenge to the validity of administrative action was (in principle, if not always
in fact) based on an allegation that one or more of the constitutional rights to lawful,
procedurally fair and reasonable administrative action had been violated. But since
the holding in Pharmaceutical Manufacturers is confined to public power, the
exercise of private power remains subject to common-law principles of
administrative law. Common-law judicial review therefore continues to have
15
2000 (2) SA 674 (CC).
16
Ibid [33].
17
Ibid [44].
647
application, though only in an extremely narrow field. It is used to control the

conduct of private entities when not exercising statutory or public powers, in
circumstances where such entities are nevertheless required to observe principles of
administrative law. A typical example is when private associations exercise
disciplinary powers over their members.18
Exercises of public power will often amount to ‘administrative action’ for
purposes of the Constitution and the PAJA—though, as will be seen, the statutory
definition of such action is somewhat narrower than the meaning attributed to the
Constitution. But even where they do not qualify as administrative action, exercises
of public power are still subject to the rule of law and a particular aspect of it, the
principle of legality.
(b) Judicial review governed by the PAJA

The Pharmaceutical Manufacturers case was decided before the coming into effect of
the Promotion of Administrative Justice Act 3 of 2000 (PAJA)19 and does not explain
how the Act fits into the ‘one system of law’ model proposed by the decision. What is
the purpose of this Act, and what is its relationship to the administrative-justice rights in
the Constitution?
(i) The suspension of s 33 and the interim administrative-justice right

For three years after commencement of the 1996 Constitution, the rights to just
administrative action in s 33 of the Bill of Rights were not in operation but were instead
suspended pending the enactment of the national legislation required by s 33(3) to ‘give
effect to’ the rights. A transitional provision, item 23 of Schedule 6 to the Constitution,
required Parliament to comply with its constitutional duty to enact the relevant national
legislation within three years of the commencement of the 1996 Constitution—that is,
by 3 February 2000. This was achieved by the enactment of the PAJA.20 Until then, the
directly enforceable rights to administrative justice were not those contained in s 33 but
rather the rights in item 23(2)(b) of Schedule 6. These were essentially the
administrative-justice rights in s 24 of the interim Constitution, with slightly different
wording. In effect, then, between the commencement of the interim Constitution and the
18
See eg Ismail v New National Party in the Western Cape [2001] JOL 8206 (C) (disciplinary proceedings of
political parties not an exercise of public power and not subject to the PAJA but subject to common-law
principles such as natural justice). In any event, as pointed out in Ismail, courts applying the remnants of the
common law are under an obligation to develop it to comport with constitutional values in terms of s 39(2) of the
Constitution. This will result in increasing congruence between the two systems.
19
The President assented to the Act on 3 February 2000 and, with the exception of ss 4 and 10, the Act came
into operation on 30 November 2000 (Proc R73 of 29 November 2000). The remaining two sections came into
effect on 31 July 2002 (Proc R63 of 31 July 2002).
20
The South African Law Reform Commission was given the task of producing a draft Bill as the first stage of
compliance with s 33(3) of the Constitution. The draft Bill published by the Commission in its Report on
Administrative Justice (August 1999) was presented to the Minister of Justice. A considerably revised
Administrative Justice Bill 56 of 1999 was introduced in Parliament and, after further and far-reaching
amendments by the Portfolio Committee on Justice and Constitutional Development, was enacted as the
Promotion of Administrative Justice Act 3 of 2000. On the legislative history of the PAJA, see I Currie The
Promotion of Administrative Justice Act: A Commentary 2 ed (2007) 1.14–1.17.
648
date of enactment of the PAJA, the administrative-justice rights in s 24 of the interim

Constitution applied.21
(ii) The purpose of the PAJA

We saw in the preceding section that the Constitution subsumed (incorporated) the
common-law principles of administrative law insofar as they applied to the exercise of
public power. Before the introduction of the PAJA, challenges to the validity of
administrative action were constitutional challenges based on the rights to administra-
tive justice in the Bill of Rights—rights that are interpreted by reference to
corresponding rights in the common law. But what is the status of the constitutional
rights in s 33 today?
The PAJA ‘gives effect to’ the constitutional rights in s 33. This means that the Act
makes the rights effective by providing an elaborated and detailed expression of the
rights to just administrative action and providing remedies to vindicate them.22 The
constitutional rights exist independently of the statute that gives effect to them, but
retreats to a background role. This is because Parliament chose to give effect to the
rights in s 33 by enacting a general and comprehensive administrative-law statute
applicable to all instances of administrative action as defined by the Act. It also elected
to limit the constitutional right in a number of ways, for example by placing a time limit
on applications for judicial review.23
(iii) The relationship between the PAJA and s 33 of the Constitution

While the Constitution grants authority to Parliament to elaborate upon or give detail to
the abstract requirements of the constitutional rights to administrative justice, this is not
the same as giving Parliament a free hand to construct the rights as it sees fit.24 To the
extent that the PAJA unjustifiably limits the constitutional rights to administrative
justice, it can be directly challenged as a violation of s 33.
Thus, even after the PAJA has commenced, there remain free-standing constitutional
rights to administrative justice in s 33(1) and (2) of the Constitution. When can these
rights be relied on directly? The answer is in exceptional cases only. This is in
accordance with the principle of avoidance which dictates that remedies should be found
in common law or legislation before resorting to constitutional remedies, and the related
principle of subsidiarity which holds that norms of greater specificity should be relied on
21
About 10 months passed between enactment (3 February 2000) and the coming into operation of the major
part of the PAJA (30 November 2000). During this period the version of the right set out in Schedule 6 continued
in force: see Minister of Public Works v Kyalami Ridge Environmental Association 2001 (3) SA 1151 (CC) [53];
Logbro Properties CC v Bedderson NO 2003 (2) SA 460 (SCA) [5] n 1. See further Chapter 30 below, dealing
with the similar hiatus period between enactment and commencement of the Promotion of Access to Information
Act 2 of 2000.
22
While the PAJA is currently enforced exclusively in the High Court, the Act envisages two substantial
changes to the institution of judicial review in future. First, the definition of ‘court’ in s 1 allows the Minister to
designate specific magistrates’ courts to hear review cases under the Act. The second innovation is the definition
of ‘tribunal’ in s 1, which envisages the establishment of independent tribunals for purposes of reviewing
administrative action in terms of the PAJA.
23
Section 7(1) of the PAJA requires applications for judicial review of administrative action to be instituted
within 180 days.
24
The phrasing of s 33(3) can be usefully contrasted with s 25(6) and (7) of the Constitution, which grants an
‘entitlement’ to land tenure reform and land restitution ‘to the extent provided by an Act of Parliament’. This
means that the extent of the entitlement is entirely for Parliament to determine. See further Chapter 25 above.
649
before resorting to norms of greater abstraction.25 There are three ways in which the
constitutional rights in s 33(1) and (2) may be relied on:
1. The constitutional rights to administrative justice can be relied on directly to
challenge the validity of provisions of the PAJA itself. The Constitutional Court has
made it clear that where legislation has been enacted to give effect to a right, a
litigant must either rely on that legislation or challenge it as being inconsistent with
the Constitution.26 For example, it could be argued that the definition of
‘administrative action’ in the Act is too narrow, and therefore that it fails to give
proper effect to the constitutional rights. If so, the definition is a limitation of s 33
and will be unconstitutional and invalid unless it is justifiable under s 36, the
limitation clause. Note, however, that s 33(3) mandated national legislation that
would ‘promote an efficient administration’ while giving effect to the rights in s 33.
This gives some weight to arguments that certain qualifications by the PAJA of the
rights in s 33(1) and (2)27 are designed to promote efficiency and are thus
constitutionally mandated.28
2. The constitutional rights can be relied on to challenge parliamentary legislation
and any other original legislation that is thought to infringe the rights to
administrative justice. For example, in a case in which a litigant had argued that
a legislative scheme in a provincial ordinance was inconsistent with
administrative justice, the Constitutional Court indicated that the correct
approach would have been to evaluate the legislation against s 33 and not
against the PAJA.29 This makes sense when one considers that the PAJA is
itself merely a piece of original legislation, albeit one that aims to give effect to
constitutional rights. Furthermore, original legislation cannot qualify as
administrative action under the PAJA because it is explicitly excluded from the
Act’s definition of that concept.30 Delegated legislation, on the other hand, is
25
See further Chapters 1 and 3.
26
Mazibuko v City of Johannesburg 2010 (4) SA 1 (CC) [73] (in relation to the PAJA). For application of this
principle in other contexts, see eg South African National Defence Union v Minister of Defence 2007 (5) SA 400
(CC) [51]–[52] (labour legislation) and MEC for Education, KwaZulu-Natal v Pillay 2008 (1) SA 474 (CC) [40]
(equality legislation).
27
An example is s 5 of the PAJA, giving effect to the right to reasons for administrative action provided for in
s 33(2). Whereas the Constitution has no such qualification, the PAJA requires reasons to be provided only on
request and permits this to be done within 90 days of the date on which the requester became aware of the
administrative action (s 5(1)).
28
However, this is not an unassailable argument as ‘promote an efficient administration’ can be read in at least
two ways. It can be read ‘downwards’ to mandate the reduction of legal burdens on the administration and
promote cost effectiveness, or ‘upwards’ to require an administration that is accountable and participatory,
promoting rational, effective and responsive (and thus, ultimately, more efficient) decision making. See J Klaaren
‘Constitutional Authority to Enforce the Rights of Administrative Justice and Access to Information’ (1997) 13
SAJHR 549, 561.
29
Zondi v MEC for Traditional and Local Government Affairs 2005 (3) SA 589 (CC). As Ngcobo J indicated
in his unanimous judgment, ‘[g]enerally the PAJA only comes into the picture when it is sought to review
administrative action’, and not when the court has to evaluate a constitutional challenge to the validity of original
legislation’ (at [99]).
30
Section 1(dd) of the PAJA excludes ‘the legislative functions of Parliament, a provincial legislature or a
municipal council’ from the definition of administrative action. This exclusion accords with the decision of the
Constitutional Court in Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council
1999 (1) SA 374 (CC), where it was found that municipal councils are deliberative bodies exercising original
lawmaking powers.
650
capable of qualifying as administrative action31—and where it does so qualify, it

should be judged against the PAJA rather than directly against s 33.32
3. In accordance with ordinary principles of constitutional interpretation, the
constitutional rights are to be used indirectly to interpret the PAJA. To put this
another way, the PAJA must as far as possible be interpreted in a manner that
conforms to s 33.33 The importance of this use of the rights should not be
underestimated. As we shall see, some provisions of the PAJA pose
considerable interpretative difficulties, and it may be possible to resolve some of
these by reference to the intention to give legislative effect to the constitutional
rights. In other words, some difficulties of interpretation might be resolved by
treating the Act as providing for no more or no less than the constitutional
rights. An example is the question of standing to enforce administrative-justice
rights, a matter on which the PAJA is silent. It may be argued that the
provisions of s 38 of the Constitution ought to be read into the PAJA, the
statute that purports to give effect to the constitutional rights in s 33.34 A more
restrictive reading would involve a limitation of the constitutional administrative
justice rights, and should therefore be avoided.
The first and second of these uses of s 33 are exceptional. Since the enactment of the
PAJA, the principal role of the constitutional rights has been indirect. Section 33 may be
relied on in support of a particular interpretation of the PAJA, and indeed of other
legislation too.35
(iv) The relationship between the PAJA and the common law
What remains of the common law? Before the PAJA, most of common-law
administrative law was subsumed by the Constitution. Since the PAJA it has been
subsumed into the statute, the legislation that gives effect to the constitutional rights in
s 33. The result is that for the most part, administrative-law review now has a legislative
basis. The common law continues to have direct application, but only where the
Constitution and the PAJA do not—so the common law applies in a direct sense only to
exercises of private power.36 The extent of this area of application depends on the
definition of administrative action in the PAJA and in the Constitution, but is in any
31
As to the status of regulations, see eg City of Tshwane Metropolitan Municipality v Cable City (Pty) Ltd
2010 (3) SA 589 (SCA) [10] and Hospital Association of SA Ltd v Minister of Health 2010 (10) BCLR 1047
(GNP) [35], both relying on the judgment of Chaskalson CJ in Minister of Health v New Clicks South Africa (Pty)
Ltd 2006 (2) SA 311 (CC) [113] (which was not a majority holding, however).
32
See Zondi (note 29 above) [99], with reference to Bato Star Fishing (Pty) Ltd v Minister of Environmental
Affairs and Tourism 2004 (4) SA 490 (CC) [25]: ‘Ordinarily, anyone who wishes to review any administrative
action must now base the cause of action on PAJA’.
33
Bato Star (note 32 above) [44]; Zondi (note 29 above) [109], [116].
34
See C Hoexter Administrative Law in South Africa 2 ed (2012) 492–494.
35
The strongest example of this is Sidumo v Rustenburg Platinum Mines Ltd 2008 (2) SA 24 (CC), where
s 145 of the Labour Relations Act 66 of 1995 was regarded as a provision giving effect to s 33 in the sphere of
employment. As a result, s 145 was ‘suffused’ with the content of s 33.
36
See the text accompanying note 18 above, and see eg Taylor v Kurtstag NO 2005 (1) SA 362 (W)
(excommunication from Jewish faith) and Klein v Dainfern College 2006 (3) SA 73 (T) (disciplinary proceedings
of private college).
651
event very narrow.37 However, the common law also has an indirect role to play as a
source informing the interpretation of the provisions of both the PAJA and s 33.38
(v) The relationship between the PAJA and other legislation

Because the PAJA is general legislation, or legislation intended to have universal39
application, any other legislation that enables administrators to act has to be read subject
to and in the light of the PAJA. In Zondi40 the Constitutional Court explained that
enabling legislation has to be ‘read together’ with the PAJA as far as possible, ie unless
its provisions are actually inconsistent with the PAJA. In the words of Ngcobo J, ‘[a]ll
decision-makers who are entrusted with the authority to make administrative decisions
by any statute are . . . required to do so in a manner that is consistent with PAJA’.41
For instance, where enabling legislation is silent on the subject of procedural fairness,
or makes inadequate or incomplete provision for it, the provisions of the PAJA will be
read into the legislation or will be used to supplement the legislation as required. An
example of supplementation of this kind is Joseph v City of Johannesburg,42 where the
court was able to read a by-law so as to require the giving of notice before a decision
was taken to disconnect electricity. Another by-law that could not be construed in this
manner was struck down, and the words ‘without notice’ severed from it.
Supplementation by the PAJA takes place also where enabling legislation allows for
judicial review but does not specify any particular grounds for review. In such a
situation, the Constitutional Court has held, the enabling legislation is to be read in
conjunction with the PAJA and its grounds of review.43 The grounds of review are in
fact supplied by the PAJA to the extent necessary.
(vi) The PAJA and special statutory review

Enabling legislation may of course specify particular remedies, which may include
judicial review on specific grounds that could be narrower or wider than those of the
PAJA. In some instances special statutory review may operate as an alternative to
review under the PAJA, effectively giving litigants a choice of which review regime to
37
Note that the PAJA defines administrative action as including actions of private individuals and entities
‘when exercising a public power or performing a public function in terms of an empowering provision’.
38
Pharmaceutical Manufacturers (note 15 above) [45] (common-law principles to be relied on to interpret
constitutional principles relating to the control of public power); Bato Star (note 32 above) [22] (common law
informs the provisions of PAJA and the Constitution). For example, the term ‘legitimate expectations’ in s 3(1) of
the PAJA can be understood only by reference to the common-law jurisprudence dealing with this concept.
39
In Sasol Oil (Pty) Ltd v Metcalfe NO 2004 (5) SA 161 (W) at 166C, Willis J described the PAJA as
‘universal legislation’.
40
Note 29 above, [101]. See also eg Walele v City of Cape Town 2008 (6) SA 129 (CC) [51] (all statutes that
authorise administrative action are to be read with the PAJA unless their provisions are inconsistent with it).
41
Zondi (note 29 above) [101].
42
Joseph v City of Johannesburg 2010 (4) SA 55 (CC) [75]–[76], and see also eg Bengwenyama Minerals
(Pty) Ltd v Genorah Resources (Pty) Ltd 2011 (4) SA 113 (CC). While the legislation in both of these cases
explicitly acknowledged the applicability of the PAJA, this made no real difference: there would still have been
an underlying obligation to read it together with the PAJA even without such a reference.
43
Fuel Retailers Association of Southern Africa v Director-General: Environmental Management,
Department of Agriculture, Conservation and Environment, Mpumalanga Province 2007 (6) SA 4 (CC) [12] (in
relation to s 36 of the Environment Conservation Act 73 of 1989). See also eg International Trade Administration
Commission v SA Tyre Manufacturers Conference [2011] ZASCA 137 (23 September 2011) [40] (in relation to
s 46(1) of the International Trade Administration Act 71 of 2002).
652
Just Administrative Action 29.2–29.3
use.44 Sometimes special statutory review clearly operates to the exclusion of review
under the PAJA: for example, the Promotion of Access to Information Act 2 of 2000 has
its own regime for judicial review, and decisions made under that statute are excluded
from the definition of ‘administrative action’ in the PAJA. There is also a third
possibility, which is where special statutory review caters for conduct that qualifies as
administrative action under s 33 of the Constitution. This means that the provision will
be governed by s 33 and that any special grounds of review will have to comply with
s 33.
The existence of this type of review was confirmed by the Constitutional Court in
Sidumo45 in relation to s 145 of the Labour Relations Act, a provision that allows for
review of arbitrations of the CCMA on four fairly narrow grounds. In Sidumo the court
reasoned that since CCMA arbitrations qualify as administrative action under s 33 of the
Constitution, these grounds are suffused with (and thus considerably broadened by) the
content of s 33. Indeed, the court found that s 145 of the Labour Relations Act is best
regarded as legislation giving effect to s 33 in the labour sphere: a sort of specialised
PAJA.46
29.3 APPLICATION OF THE RIGHTS TO JUST ADMINISTRATIVE ACTION

Understanding the constitutional rights to just administrative action and the way in
which the PAJA gives effect to them requires a two-stage analysis. The first relates to
the scope of application of the rights and the second to their content. The rights are
applicable only to administrative action. As we have seen, this type of conduct is a
sub-category of what the Pharmaceutical Manufacturers decision termed ‘exercises of
public power’.47 Once it has been ascertained whether particular conduct is
administrative action, one can turn to the content of the administrative-justice rights to
establish more precisely what duties are placed on administrators by those rights.
(a) The constitutional conception of administrative action

Section 24 of the interim Constitution provided for a right to lawful, procedurally fair,
justifiable and reasoned administrative action. This right was in direct operation between
1994 and 2000 (for, pending the enactment of the Promotion of Administration Justice
Act 3 of 2000 (PAJA), s 33 of the 1996 Constitution had to be read as if it were s 24).
There is thus a considerable body of jurisprudence indicating what administrative action
is for purposes of the constitutional right to just administrative action. The jurisprudence
can be summarised as follows.
Administrative action is, at its broadest and simplest, the exercise of public power by
any organ of state except the following: the legislatures (national, provincial, local)
when exercising their legislative functions;48 the judiciary when exercising judicial
44
At common law, special remedies were usually cumulative and were regarded as replacing ordinary judicial
review only where the legislature had made this intention absolutely clear. See Madrassa Anjuman Islamia v
Johannesburg Municipality 1917 AD 718, 727.
45
Note 35 above.
46
Ibid [106], [110].
47
Note 15 above. The term is used throughout the judgment, but see especially [79], [83], [85] and [90].
48
Fedsure (note 30 above) (in contrast with delegated legislation, legislation made by an elected, deliberative
legislative body established by the Constitution is not administrative action); and see also Kungwini Local
Municipality v Silver Lakes Home Owners Association 2008 (6) SA 187 (SCA); Pharmaceutical Manufacturers
653
functions;49 the President when exercising the constitutional powers of the head of
state;50 and the cabinet and provincial cabinets when making political decisions. The
reason for the head-of-state and cabinet exceptions is that the President and the cabinet
are authorised by the Constitution to make political decisions—that is, decisions
involving policy in the broad sense—and not administrative decisions, which may
involve policy-making in the narrow sense.51 For example, the President’s decision to
sign a Bill, appoint an ambassador, confer an honour or appoint a commission of inquiry
is a political and not an administrative decision. The same goes for cabinet decisions. If,
however, the President or a cabinet Minister acts in terms of powers conferred by
legislation, he or she acts as a delegate of Parliament and as an administrative official.52
All of the above will also apply to the exercise of the ‘political’ executive powers of a
provincial Premier and executive council as listed in the Constitution.53
(b) Administrative action in the PAJA

With the constitutional conception outlined above in mind, the Law Commission’s draft
Administrative Justice Bill described the concept of ‘administrative action’ widely: as
any action or decision performed by an organ of state or any exercise of public power
(note 15 above) (President’s decision to bring an Act of Parliament into force requires the making of a political
judgment and lies between the legislative process, which is not administrative action, and the implementation of
legislation, which is administrative action). See further Steele v South Peninsula Municipal Council 2001 (3) SA
640 (C) (municipal council’s decision to remove speed bumps neither legislative nor administrative action);
Colonial Development (Pty) Ltd v Outer West Local Council 2002 (2) SA 589 (N) (modification of town planning
scheme still in preparation is administrative action but local authority’s action in giving effect to it is legislative).
49
Nel v Le Roux NO 1996 (3) SA 562 (CC) [24] (summary sentencing procedure in terms of s 205 of the
Criminal Procedure Act 51 of 1977 is ‘judicial’ rather than ‘administrative’ in nature because the procedure is
conducted by a judicial officer and is subject to the ordinary rules for criminal appeals). Private arbitration,
besides being an exercise of private rather than public power, is judicial rather than administrative: Total Support
Management (Pty) Ltd v Diversified Health Systems (SA) (Pty) Ltd 2002 (4) SA 661 (SCA) [24]–[25]. Cf Sidumo
(note 35 above) (statutorily imposed arbitration decisions in the CCMA are administrative action under s 33).
50
President of the Republic of South Africa v South African Rugby Football Union 2000 (1) SA 1 (CC)
(‘SARFU’) (President’s appointment of a commission of inquiry under s 84(2)(f) of the 1996 Constitution is not
administrative action; the power is exercised by the President acting as head of state rather than as head of the
executive, is closely related to policy and is not concerned with the implementation of legislation).
51
In Permanent Secretary, Department of Education and Welfare, Eastern Cape v Ed-U-College (PE) (Section
21) Inc 2001 (2) SA 1 (CC) [18] the Constitutional Court made an important distinction between these two types
of policy formulation, the second of which may be administrative action: ‘Policy may be formulated by the
executive outside of a legislative framework. For example, the executive may determine a policy on road and rail
transportation, or on tertiary education. The formulation of such policy involves a political decision and will
generally not constitute administrative action. However, policy may also be formulated in a narrower sense
where a member of the executive is implementing legislation. The formulation of policy in the exercise of such
powers may often constitute administrative action.’ On this reasoning the decision of a provincial MEC
determining a formula for the allocation of a subsidy to private schools was policy formulation in the narrow
sense and amounted to administrative action.
52
See SARFU (note 50 above) [138]–[148] (executive does not perform administrative action when
formulating policy, but does when implementing legislation) and Ed-U-College (note 51 above) [18]: ‘[W]hen
. . . a senior member of the Executive is engaged upon the implementation of legislation, that will ordinarily
constitute administrative action. However, senior members of the Executive also have constitutional
responsibilities to develop policy and initiate legislation and the performance of these tasks will generally not
constitute administrative action.’ See also Geuking v President of the Republic of South Africa 2003 (3) SA 34
(CC) [27] (decision of the President to grant or refuse consent to extradition was ‘a policy decision relating to
foreign affairs’).
53
See eg Nephawe v Premier, Limpopo Province 2003 (5) SA 245 (T) [91] (decision of Premier to refer report
of a commission of inquiry to a Minister ‘closely related to the purpose of developing policy’ and not
administrative action). Cf Mkhatshwa v Mkhatshwa 2002 (3) SA 441 (T) (appointment of a chief by a Premier is
an implementation of powers conferred by legislation).
654
other than executive, legislative or judicial action. However, the definition of

administrative action ultimately enacted in the Promotion of Administrative Justice Act
3 of 2000 (PAJA) was considerably more complicated and qualified. Section 1 of the
Act defines administrative action as follows:
‘administrative action’ means any decision taken, or any failure to take

a decision, by—
(a) an organ of state, when—
(i) exercising a power in terms of the Constitution or a provincial
constitution; or
(ii) exercising a public power or performing a public function in
terms of any legislation; or
(b) a natural or juristic person, other than an organ of state, when exer-
cising a public power or performing a public function in terms of an
empowering provision, which adversely affects the rights of any per-
son and which has a direct, external legal effect, but does not
include—
(aa) the executive powers or functions of the National Executive,
including the powers or functions referred to in sections 79(1)
and (4), 84(2)(a), (b), (c), (d), (f), (g), (h), (i) and (k), 85(2)(b),
(c), (d) and (e), 91(2), (3), (4) and (5), 92(3), 93, 97, 98, 99 and
100 of the Constitution;
(bb) the executive powers or functions of the Provincial Executive,
including the powers or functions referred to in sections 121(1)
and (2), 125(2)(d), (e) and (f), 126, 127(2), 132(2), 133(3)(b),
137, 138, 139 and 145(1) of the Constitution;
(cc) the executive powers or functions of a municipal council;
(dd) the legislative functions of Parliament, a provincial legislature
or a municipal council;
(ee) the judicial functions of a judicial officer of a court referred to in
section 166 of the Constitution or of a Special Tribunal estab-
lished under section 2 of the Special Investigating Units and
Special Tribunals Act, 1996 (Act No. 74 of 1996), and the judi-
cial functions of a traditional leader under customary law or any
other law;
(ff) a decision to institute or continue a prosecution;
(gg) a decision relating to any aspect regarding the appointment of
a judicial officer, by the Judicial Service Commission;
(hh) any decision taken, or failure to take a decision, in terms of any
provision of the Promotion of Access to Information Act, 2000;
or
(ii) any decision taken, or failure to take a decision, in terms of
section 4(1).
655
Although one begins with the definition of ‘administrative action’, the enquiry into the
scope of application of the Act does not end there. Because administrative action as
defined is confined to ‘decisions’, one must also consider the definition of ‘decision’ in
s 1. In turn, because the definition of ‘decision’ confines decisions to conduct ‘of an
administrative nature’ in terms of an ‘empowering provision’, it must be read with the
definition of ‘empowering provision’. And because ‘decision’ includes failure to take a
decision, the definition must be read with the definition of ‘failure’ (which includes a
refusal to take a decision).
In summary, an action will qualify as administrative action under the PAJA if it
is:
1. a decision54
2. by an organ of state (or a natural or juristic person)
3. when exercising a public power or performing a public function
4. in terms of any legislation (or in terms of an empowering provision)
5. that adversely affects rights
6. that has direct, external legal effect
7. and, that is not specifically excluded by the list of exclusions in subparas (aa) to
(ii) of the definition of administrative action.
Each of these qualifications is briefly discussed below.
(i) Decisions
Rather than ‘conduct’ of the administration, the Act confines administrative action to
any ‘decision’ or ‘failure to take a decision’. In this regard, the PAJA is modelled on the
Australian Administrative Decisions (Judicial Review) Act 1977 (ADJR Act)55 and, like
its model, contains an elaborate definition of ‘decision’ in s 1:56
‘decision’ means any decision of an administrative nature made, pro-

posed to be made, or required to be made, as the case may be, under
an empowering provision, including a decision relating to—
(a) making, suspending, revoking or refusing to make an order, award
or determination;
(b) giving, suspending, revoking or refusing to give a certificate,
direction, approval, consent or permission;
(c) issuing, suspending, revoking or refusing to issue a licence,
authority or other instrument;
(d) imposing a condition or restriction;
(e) making a declaration, demand or requirement;
(f) retaining, or refusing to deliver up, an article; or
54
The Act is not retrospective and therefore applies only to decisions taken after commencement.
Administrative action taken before commencement is governed directly by the Constitution: see note 21 above
on administrative action taken during the hiatus period between enactment and commencement of the PAJA.
55
The ADJR Act applies to ‘a decision of an administrative character made, proposed to be made, or required
to be made, as the case may be (whether in the exercise of a discretion or not) under an enactment’ (s 3(1)).
56
On the interpretative difficulties created by the partial borrowing from the ADJR Act, see Currie (note 20
above) 3.9–3.12.
656
(g) doing or refusing to do any other act or thing of an administrative

nature, and a reference to a failure to take a decision must be
construed accordingly.
A ‘decision’, the definition tells us, means ‘any decision’, which is not particularly
helpful. However, the principal purpose behind confining administrative action to a
decision (as opposed to the wider category of conduct) seems to be that only the
decisive, determinative part of an administrative decision-making process should
qualify for administrative-law control.57 On this interpretation, ‘decision’ overlaps with
other elements of the definition, notably the requirement that the decision has an adverse
effect on rights and that it has direct, external legal effect.58 There is some judicial
support for the proposition that a ‘decision’ will typically—but not inevitably—
encompass certain features: an application or claim, a gathering of information, an
evaluative process, a conclusion and an exercise of power based on the conclusion.59
(aa) Decisions ‘of an administrative nature’

As we have seen, administrative action is connected with the daily business of
government: the implementing (administering) of policy that has been translated into
legislation and the making of policy within the framework allowed by legislation. The
phrase ‘of an administrative nature’ can be regarded as bolstering the jurisprudence on
the constitutional meaning of ‘administrative action’. However, a High Court has
suggested a more specific function for the phrase: that it requires a court to make a
positive finding as to whether a decision qualifies as administrative action, and that the
diagnosis cannot be made by default or by inferring mechanically that a decision not
specifically excluded from the definition must necessarily fall within the definition.60
The interpretation given by the Australian courts to the ‘decision of an administrative
character’ qualification turns on the traditional classification of government functions as
administrative, legislative or judicial. Decisions of a legislative or judicial character are
therefore excluded from review under the Act. This means, importantly, that the
Australian Act does not apply to subordinate legislation61 or to decisions of a judicial or
‘quasi-judicial’ character. However, one should not make too much of the Australian
provenance of the definition of ‘decision’. First, the Australian Act is intended to
provide expedited review mechanisms for a relatively narrow class of administrative
action by federal agencies. It is supplementary to the common-law grounds of review
but does not replace them. Secondly, it would be most unfortunate if the definition of
57
See eg Mzamba Taxi Owners’ Association v Bizana Taxi Association 2006 (2) SA 154 (SCA) (voluntary
agreement between taxi associations not preceded by a request and a decision); Phenithi v Minister of Education
2008 (1) SA 420 (SCA) (discharge took place by operation of law and not by means of a decision).
58
See eg the distinction between ‘decisions’ and mere ‘formal acts’ in the pre-PAJA case of Gamevest (Pty)
Ltd v Regional Lands Claims Commissioner for the Northern Province and Mpumalanga 2003 (1) SA 373 (SCA)
and, in the context of the PAJA, between ‘decisions’ and mere clerical acts that would follow on a decision:
Kuzwayo v Representative of the Executor in the Estate of the late Masilela [2011] 2 All SA 599 (SCA).
59
Bhugwan v JSE Ltd 2010 (3) SA 335 (GSJ) [10], in which the court also acknowledged that these
ingredients will not always be present. See further RC Williams ‘The Concept of a ‘‘Decision’’ as the Threshold
Requirement for Judicial Review in Terms of the Promotion of Administrative Justice Act’ (2011) 14 PER 230.
60
Sokhela v MEC for Agriculture and Environmental Affairs (KwaZulu-Natal) 2010 (5) SA 574 (KZP) [61].
61
Evans v Friemann (1981) 35 ALR 428. See further EI Sykes et al General Principles of Administrative Law
4 ed (1997) [2422]ff.
657
‘decision’ were to require revisiting the largely discredited body of South African
jurisprudence on the classification of functions.62
In any event, it seems most unlikely that the PAJA does not apply to the making of
delegated legislation,63 not least because the notice and comment procedures of s 4
make little sense other than as procedural requirements for the making of rules of a
legislative character. Furthermore, the PAJA (unlike its Australian model) is intended to
give effect to constitutional rights to just administrative action. These have been held to
apply to the conduct of the administration, understood as conduct connected with the
daily business of government, including the making of delegated legislation,
adjudicating and administering. Reading ‘decisions of an administrative nature’ too
narrowly would mean that the PAJA does not give effect to the constitutional rights.
(bb) Decisions made ‘under an empowering provision’

Section 1 of the PAJA includes a definition of an empowering provision:
‘empowering provision’ means a law, a rule of common law, custom-

ary law, or an agreement, instrument or other document in terms of
which an administrative action was purportedly taken.
To qualify as administrative action, a decision must be taken under an empowering

provision. However, the definition of the term is so liberal that this element of the
definition should be satisfied quite easily.
(ii) Organs of state and natural or juristic persons

Administrative action may be performed by an organ of state when exercising any
power in terms of the Constitution or a provincial constitution; or when exercising
public powers or performing public functions in terms of legislation. In this context
‘organ of state’ bears the meaning assigned to it in s 239 of the Constitution.64
By contrast, natural or juristic persons may perform administrative action whenever
they exercise public powers or functions ‘in terms of an empowering provision’. As we
have just seen, this term is defined very broadly and there is no need for legislation: an
‘agreement, instrument or other document’ will suffice. The PAJA thus gives
considerable scope for administrative action that is performed by actors other than
organs of state—an approach that is appropriate for the era of outsourcing and
privatisation. As the highest court has acknowledged, ‘[o]ur Constitution ensures that
government cannot be released from its human rights and rule of law obligations simply
because it employs the strategy of delegating its functions to another entity’.65
62
See eg the criticism of the doctrine of classification of functions in Administrator, Transvaal v Traub 1989
(4) SA 731 (A) 762–763.
63
The question was left open in Minister of Home Affairs v Eisenberg and Associates 2003 (5) SA 281 (CC)
[52]–[53] and was not decided by a majority in New Clicks (note 31 above), though it is significant that
Chaskalson CJ regarded the phrase ‘of an administrative nature’ as bringing regulation-making within the
definition of ‘decision’: see [128]–[133]. However, some subsequent judgments have proceeded on the
assumption that New Clicks did decide the question: see the cases cited in note 31 above.
64
On the overlap between the two definitions, see the remarks of Nugent JA in Calibre Clinical Consultants
(Pty) Ltd v National Bargaining Council for the Road Freight Industry 2010 (5) SA 457 (SCA) [21].
65
AAA Investments (Pty) Ltd v Micro Finance Regulatory Council 2007 (1) SA 343 (CC) [40] (Yacoob J).
658
(iii) The exercise of public power or performance of a public function

The PAJA does not confine the definition of administrative action to decisions by public
bodies, but includes natural and juristic persons when exercising a public power or
performing a public function. This means that whether something is administrative
action depends on the public nature of the power that is being exercised rather than the
person exercising it. As the Constitutional Court put it in a pre-PAJA case, what matters
is not the functionary but the function.66
It follows that not every act of an organ of state is an exercise of public power.67 A
pre-PAJA example is Cape Metro,68 where a municipality’s cancellation of a contract
on grounds of fraud was held not to be administrative action under the Constitution.
Rather, the Supreme Court of Appeal held, it was the exercise of a common-law
contractual power. That holding was glossed as follows by the same court in Logbro
Properties CC v Bedderson NO:
[T]he [Cape Metro] case establishes the proposition that a public authority’s invocation of a
power of cancellation in a contract concluded on equal terms with a major commercial
undertaking, without any element of superiority or authority deriving from its public
position, does not amount to an exercise of public power.69
In Logbro, by contrast, the exercise of contractual rights by an organ of state (on the
assumption that the tender conditions in that case constituted a contract) was an exercise
of public power. This was because the tender conditions were dictated by the organ of
state acting from a position of superiority by virtue of its being a public authority.70
The focus on the function rather than the functionary allows for the possibility
that private bodies may perform public functions. This was confirmed by the
Constitutional Court in the important case of AAA Investments Ltd v Micro Finance
Regulatory Council71 (though again, not in the context of the PAJA). Here it was
held that, notwithstanding the private appearance of the council, its task of making
rules to regulate an industry was a public function. Other factors taken into account
were the extent of the control exercised by the Minister over the council and the
absence of the autonomy associated with a private enterprise.72
It is clear that no single test will be decisive in determining what powers and
functions are of a public nature. Factors regarded as relevant in some of the cases
decided under the PAJA include the effect of a decision on the public73 and the
66
SARFU (note 50 above) [141].
67
It also follows that the jurisprudence interpreting the phrase ‘organ of state’ in the interim Constitution as
turning on a degree of control of an entity by the government is somewhat redundant, since it emphasises the
nature of the functionary rather than the function. The representative decision is Directory Advertising Cost
Cutters v Minister for Posts, Telecommunications and Broadcasting 1996 (3) SA 800 (T).
68
Cape Metropolitan Council v Metro Inspection Services (Western Cape) CC 2001 (3) SA 1013 (SCA).
69
Note 21 above [10].
70
Ibid [11]. Cf Government of the Republic of South Africa v Thabiso Chemicals (Pty) Ltd 2009 (1) SA 163
(SCA) [18] (once a tender has been awarded, the relationship between the parties is governed by contract law to
the exclusion of administrative law). There is ample authority that the procurement (‘tendering’) process that
precedes a contract between an organ of state and a private sector service provider is administrative action under
the Constitution: see Logbro (note 21 above) [5] and the authorities collected there; and in relation to the PAJA,
see eg Simunye Developers CC v Lovedale Public FET College [2010] ZAECGHC 121 (9 December 2010).
71
Note 65 above.
72
Ibid [45].
73
See eg Van Zyl v New National Party 2003 (10) BCLR 1167 (C) [76] (impact of political party’s decision to
recall an NCOP delegate).
659
‘public interest’ in a decision or activity.74 In Calibre Clinical Consultants,75

however, the Supreme Court of Appeal doubted that a mere interest on the part of
the public would be sufficient to give a power or function a public character. With
reference to comparative as well as South African jurisprudence, the court went on
to insist on ‘features that are governmental in kind’, which is to say—
the extent to which the functions concerned are ‘woven into a system of governmental
control’ or ‘integrated into a system of statutory regulation’, or that the government
‘regulates, supervises and inspects the performance of the function’, or it is ‘a task for which
the public, in the shape of the state, have assumed responsibility’, or it is ‘linked to the
functions and powers of government’, or it constitutes ‘a privatization of the business of
government itself’, or it is publicly funded, or there is ‘potentially a governmental interest in
the decision-making power in question’, or the body concerned is ‘taking the place of central
government or local authorities’, and so on.76
While some of these factors have featured in South African case law concerning public
powers,77 it is worth noting that ‘public’ may have a broader meaning than
‘governmental’. Furthermore, the characterisation seems to be in tension with the
Constitutional Court’s view in AAA Investments that ‘it is not necessary . . . to decide
whether the power is governmental’.78
(iv) Acting in terms of any legislation (or empowering provision)

As already noted, organs of state have to act in terms of ‘any legislation’ in order for
their decisions to amount to administrative action. By contrast, natural or juristic
persons merely have to act under an ‘empowering provision’, which is defined broadly
so as to include ‘an agreement, instrument or other document’.
In the vast majority of cases organs of state do act in terms of enabling legislation.
However, this is not always the position. An example is the pre-PAJA Cape Metro
case79 mentioned above, where a municipal council was empowered by legislation to
enter into an outsourcing contract—but where the court found that the subsequent
cancellation of the contract took place on common-law contractual grounds rather than
statutory grounds.80 In the result, the cancellation was not administrative action or even
an exercise of public power.
In a case decided under the PAJA, Chirwa v Transnet Ltd,81 the legislation governing
the dismissal of employees of Transnet had been repealed and not replaced. The absence
of legislation led a minority of the court to hold that the dismissal had a contractual
rather than a legislative basis, and that it could not amount to administrative action under
the PAJA.82
74
See eg Tirfu Raiders Rugby Club v South African Rugby Union [2006] 2 All SA 549 (C) [28] (public interest
in activities of rugby unions and clubs).
75
Note 64 above [36], and see also the earlier case of Marais v Democratic Alliance 2002 (2) BCLR 171 (C)
[51].
76
Calibre Clinical Consultants (note 64 above) [38].
77
For a survey of the case law, see Hoexter (note 34 above) 3–5.
78
Note 65 above [39]; and see also [41].
79
Note 68 above.
80
This was in spite of the fact that the legislation made provision for termination on grounds including
fraud—which was the council’s reason for cancelling the contract.
81
Chirwa v Transnet Ltd 2008 (4) SA 367 (CC).
82
Ibid [185] in the dissenting judgment of Langa CJ, O’Regan and Mokgoro JJ concurring. In the judgment of
Ngcobo J the absence of legislation was also fatal, but he did not rely on the PAJA for this finding.
660
(v) Adversely affecting rights

This provision and the ‘direct, external legal effect’ qualification are potentially
significant restrictions on the scope of the PAJA, but much depends on how one
interprets them.
(aa) Deprivation and determination approaches

The verb ‘to affect’ is ambiguous in the context of rights, as it may mean either to
‘deprive’ someone of a right or to ‘determine’ someone’s rights.83 If, for example, a
person applies for a licence for the first time, the refusal of the application will not
deprive that person of any existing or established right. Rather, it will determine what
that person’s rights are in relation to the licence. Since much official action concerns
applications of this kind, or ‘mere applicants’, taking ‘affect’ to mean ‘deprive’
considerably narrows the class of administrative action—whereas taking it to mean
‘determine’ makes for a much broader class.
The difficulty in deciding how to interpret ‘affect’ is not new to South African
administrative law. The courts have wrestled with this problem for decades, particularly
in determining the reach of the right to natural justice.84 But which of these meanings
should be ascribed to the term in the definition of administrative action? Here it is
important to remember that the Act is intended to give effect to the constitutional rights
to administrative justice, and that the Constitution (and the jurisprudence relating to it)
imposes no such qualification on the meaning of administrative action. The
‘determination’ meaning, which does not restrict the application of the Act to decisions
affecting established rights, is therefore preferable.85 Furthermore, the Constitutional
Court has indicated its preference for the determination approach by stating that ‘the
issue of administrative efficiency primarily informs the content of the duties imposed
under administrative law rather than the scope of application of administrative law’,
which ‘should not be strictly delimited’.86 In other words, administrative action should
be given a broad meaning, and any restrictions should rather be placed on the content of
the duties to act lawfully, reasonably and fairly or the duty to give reasons.
(bb) The ‘capacity to affect legal rights’

In the strict sense, a right is an enforceable claim maintainable against a duty-holder.
While this may include constitutional rights, it seems fairly clear that the rights in
question cannot be those granted by s 33 of the Constitution or the PAJA itself—that is,
the rights to lawful, procedurally fair and reasonable administrative action.87
83
E Mureinik ‘Reconsidering Review: Participation and Accountability’ 1993 Acta Juridica 35, 36.
84
See eg Laubscher v Native Commissioner, Piet Retief 1958 (1) SA 546 (A) 549, where the court applied the
deprivation approach; and Hack v Venterspost Municipality 1950 (1) SA 172 (W) 189–190, where the court
applied the determination approach.
85
Had the Act been intended to be more restrictive, it would have been a simple matter to use the words
‘existing rights’ instead of simply ‘rights’.
86
Joseph (note 42 above) [29] (Skweyiya J). See also Union of Refugee Women v Director: Private Security
Industry Regulatory Authority 2007 (4) SA 395 (CC) [70], where Kondile AJ referred to an unsuccessful
application as ‘an adverse determination of the applicant’s rights’. J Klaaren & G Penfold ‘Just Administrative
Action’ in S Woolman et al (eds) Constitutional Law of South Africa (2008) ch 63 at 63–70 regard this as lending
support to the determination approach.
87
See in this regard the approach of Schutz JA to the right to reasons in Transnet Ltd v Goodman Brothers
(Pty) Ltd 2001 (1) SA 853 (SCA) [11], where the majority held (under the interim Constitution) that the rights to
lawful and procedurally fair administrative action would be adversely affected if reasons were not given for the
661
Nevertheless, there is support for a wider interpretation of ‘rights’ in comparable

contexts.88 In the important case of Grey’s Marine, in the context of the PAJA itself, the
Supreme Court of Appeal suggested that a literal construction of the concept should be
avoided. In relation to the phrase ‘adversely affects the rights of any person’, Nugent JA
remarked:
I do not think that literal meaning could have been intended. For administrative action to be
characterised by its effect in particular cases (either beneficial or adverse) seems to me to be
paradoxical and also finds no support from the construction that has until now been placed
on s 33 of the Constitution. . . . The qualification, particularly when seen in conjunction with
the requirement that it must have a ‘direct and external legal effect’, was probably intended
rather to convey that administrative action is action that has the capacity to affect legal
rights, the two qualifications in tandem serving to emphasise that administrative action
impacts directly and immediately on individuals.89
Although obiter, this dictum has had a significant influence on the subsequent
jurisprudence. In particular, a decision not to promote or appoint a ‘mere applicant’ to a
position has been regarded as having the capacity to affect his or her rights.90 In one of
these cases a High Court endorsed the view that the ‘capacity to affect legal rights’ is the
same thing as the determination approach.91 In addition, the Constitutional Court has
explained that the decision to award or refuse a tender is administrative action because it
directly affects the ‘legal interests or rights’ of the tenderers concerned92—another
possible indication that the determination approach now rules. All that remains is for the
Constitutional Court to make a definitive statement as to its preference for the
determination approach with specific reference to the requirement of ‘adversely affects
rights’.
(cc) Whose rights must be adversely affected?

The effect of the determination on rights must be adverse in the sense of imposing a
burden on someone. This would include decisions requiring someone to do something or
refrain from doing something, limiting someone’s rights or removing them altogether.93
A positive determination of rights, the granting of a benefit or the removal of an
respondent’s failure to be awarded the tender. Such reasoning is not only circular but makes the ‘rights’
requirement redundant, as there will always be a right to satisfy it. The approach of Olivier JA in his separate
concurring judgment in Goodman Brothers is preferable and shows the ease with which a ‘right’ can be found to
satisfy the threshold requirement without resorting to bootstrapping. ‘The right to equal treatment’, he held (at
[42]), ‘pervades the whole field of administrative law, where the opportunity for nepotism and unfair treatment
lurks in every dark corner. How can such right be protected other than by insisting that reasons be given for an
adverse decision? It is cynical to say to an individual: you have a constitutional right to equal treatment, but you
are not allowed to know whether you have been treated equally.’
88
See eg Bullock NO v Provincial Government, North West Province 2005 (5) SA 262 (SCA) [20] (in relation
to s 24(d) of the interim Constitution and with reference to a dictum of O’Regan J in Premier, Mpumalanga v
Executive Committee, Association of State-Aided Schools, Eastern Transvaal 1999 (2) SA 91 (CC) [31] fn 9); and
see the jurisprudence on the constitutional right of access to information ‘required for the exercise or protection
of any of . . . [the applicant’s] rights’, discussed in Chapter 30 below.
89
Grey’s Marine Hout Bay (Pty) Ltd v Minister of Public Works 2005 (6) SA 313 (SCA) [23].
90
See especially Kiva v Minister of Correctional Services (2007) 28 ILJ 597 (E) [20], Minister of Defence v
Dunn 2007 (6) SA 52 (SCA) [4] and Wessels v Minister for Justice and Constitutional Development 2010 (1) SA
128 (GP) 137–139.
91
Wessels (note 90 above) 136E–137B, approving the view of Klaaren & Penfold (note 86 above).
92
Steenkamp NO v Provincial Tender Board, Eastern Cape 2007 (3) SA 1210 (CC) [21] (Moseneke DCJ).
93
The paradigm case is the revocation of a licence. See eg Magingxa v National Commissioner, South African
Police Service 2003 (4) SA 101 (Tk) (decision to revoke an arms-dealing licence is administrative action).
662
encumbrance would not be administrative action—at least not in relation to the

beneficiary of the determination.94 Subject to what is said immediately below it seems,
then, that a beneficial decision would not amount to administrative action vis-à-vis a
successful applicant.
Conversely, however, the words ‘rights of any person’ suggest that the rights in
question need not necessarily be those of the applicant.95 Indeed, in Grey’s Marine,96
where a decision to grant a lease qualified as administrative action, the court
acknowledged that the decision had ‘immediate and direct consequences’ mainly for the
party benefiting from the lease rather than for the applicants.
(vi) Direct, external legal effect

This requirement was a last-minute and somewhat arbitrary addition to the PAJA by the
Parliamentary Portfolio Committee. The phrase has its origins in the German Federal
Law of Administrative Procedure of 1976 (Verwaltungsverfahrensgesetz or VwVfG).97
It appears to have been included in the PAJA to ensure that only final decisions directed
at members of the public are covered by the Act, a result also aimed at by the definition
of ‘decision’ and the qualification ‘adversely affecting rights’.98
(aa) ‘Direct, external legal effect’ in German law

‘Direct, external legal effect’ in the German legislation means that legal consequences
affecting someone other than the administrator must flow from the action. A decision
has a legal effect if it entails a binding determination of somebody’s rights or duties.
Recommendations, opinions and proposals made by the administration therefore do not
have legal effect. A decision has a direct effect if it is final99 or has an immediate impact
on someone’s rights. Therefore, preparatory steps in a decision-making process usually
have no direct effect.
External effect means that the person affected has to be someone other than the
administrator. This does not exclude members of the administrative institution
concerned, such as employees in the public service or students at a university, from
94
See eg Lategan v Lategan NO 2003 (6) SA 611 (D) (no right to request reasons for a decision in one’s
favour).
95
But see the suggestion made in Sokhela (note 60 above) [66] that the impact of a decision should fall on the
person who challenges it.
96
Grey’s Marine (note 89 above) [28].
97
Article 35 VwVfG, translation by R Pfaff & H Schneider ‘The Promotion of Administrative Justice Act from
a German Perspective’ (2001) 17 SAJHR 59, 64–65: ‘An administrative act shall be any order, decision or other
sovereign measure taken by an authority to regulate an individual case in the sphere of public law and which is
intended to have a direct, external legal effect. A general order shall be an administrative act directed at a group
of people defined or definable on the basis of general characteristics or relating to the public law aspect of a
matter or its use by the public at large.’
98
The overlap between these elements of the definition of administrative action is illustrated by Ritchie v
Government of the Northern Cape Province 2003 (2) SA 584 (NC) [20] (decisions by the provincial government
to fund the private defamation lawsuits of some of its officials were not administrative action but ‘policy
decisions amounting to internal acts which do not threaten the applicants’ rights and freedom of expression’). For
criticism of the judgment see C Hoexter ‘‘‘Administrative Action’’ in the Courts’ 2006 Acta Juridica 303 at
311–313.
99
According to Pfaff & Schneider (note 97 above) 72, ‘[o]ne generally speaks of ‘‘direct effect’’ of an
administrative action if the decision is a final one with respect to the determination of individual rights. . . . If, for
example, a decision requires several steps to be taken by different authorities, only the last of which is directed at
the citizen, all previous steps taken within the sphere of public administration lack direct effect, and only the last
decision may be taken to court for review.’
663
challenging administrative action if their individual rights have been affected by a

decision (for example, if they have been fired or suspended). However, an
intra-departmental instruction by a superior authority to a subordinate is not itself an
administrative act, although on the basis of the direction an administrative act may
ultimately be taken.100 The point is that the measure must affect the rights of outsiders
and ‘should not be a purely internal matter of departmental administration’.101
(bb) ‘Direct, external legal effect’ in South African law

As the Constitutional Court has observed, ‘[t]ransplanting provisions . . . into our legal
and constitutional framework may produce results different from those obtained in the
countries from which they have been taken’.102 Nevertheless, the German meanings
seem to have taken firm root in the South African jurisprudence.
The requirement of externality has proved significant or decisive in a number of
cases. Acts found to have been ‘internal’ include decisions to fund the private
defamation actions of provincial officials,103 the making of a set of administrative
guidelines,104 a decision by a municipal council as to its voting procedures105 and a
decision to introduce a new shift system for police officers.106 Strangely, however, in
another public-sector employment case the Constitutional Court did not rely on the
requirement in relation to a non-promotion.107 Instead the court reasoned that the
decision affected mainly the appellant himself and had ‘little or no direct consequence
for any other citizens’—thus seeming to create a new requirement of ‘public impact’ in
the context of employment-related action.108
As to the other elements of the phrase, there is pre-PAJA support for finality as a
prerequisite for review,109 and the absence of a final decision has also proved decisive in
a few judgments handed down under the PAJA.110 In Grey’s Marine the Supreme Court
of Appeal found that the phrase ‘direct, external legal effect’ serves to emphasise that
administrative action ‘impacts directly and immediately on individuals’.111 This
interpretation implies a definite overlap with the requirement that rights be adversely
affected; something that is borne out by the recent case law. Most significantly, in
Joseph the court was satisfied that if any rights of the applicants had been adversely
affected for the purposes of s 3 of the PAJA, this would ‘necessarily imply’ that the
decision had a direct, external legal effect on them.112
100
JR de Ville Judicial Review of Administrative Action in South Africa (2003) 58.
101
MP Singh German Administrative Law in Common Law Perspective (1985) 35.
102
New Clicks (note 31 above) [142] (Chaskalson CJ).
103
Ritchie (note 98 above) [20].
104
Sasol Oil (note 39 above) [13]. The issue was not dealt with on appeal in MEC for Agriculture,
Conservation, Environment and Land Affairs v Sasol Oil (Pty) Ltd 2006 (5) SA 483 (SCA).
105
Botha v Matjhabeng Municipality [2010] ZAFSHC 18 (18 February 2010) [24].
106
South African Police Union v National Commissioner of the South African Police Service (2005) 26 ILJ
2403 (LC), ‘SAPU’.
107
Gcaba v Minister of Safety and Security 2010 (1) SA 238 (CC).
108
See further Hoexter (note 34 above) 214–218 and 233–234. The court in Gcaba (note 107 above) admitted
that it would be expedient to find that employment-related conduct of public officials is not administrative action,
as this would substantially reduce the problems of duplicate jurisdiction and forum-shopping (at [69]).
109
See eg Podlas v Cohen and Bryden NNO 1994 (4) SA 662 (T) 675D–G.
110
See eg Sasol Oil (note 39 above) [13] (guidelines lacked direct effect); Registrar of Banks v Regal Treasury
Private Bank Ltd 2004 (3) SA 560 (W) 567G–I (decision to apply for winding-up order lacked direct effect).
111
Note 89 above [23].
112
Note 42 above [27]. See also Union of Refugee Women (note 86 above) [70].
664
A notably expansive interpretation of the requirement took place in Oosthuizen’s

Transport,113 where it was held that a decision of an investigative team to recommend
suspension of the operator cards of the applicants’ vehicles qualified as administrative
action. Here the court relied partly on the Grey’s Marine dictum regarding a ‘capacity to
affect legal rights’ and partly on the understanding that it is possible for a preliminary
decision to have serious consequences. The court noted, too, the existence of German
authority for the proposition that it is enough for an action to be ‘directed towards’ or
‘aimed at’ direct consequences.114 On this approach there are few decisions that will
lack direct legal effect. A mere investigation on its own is unlikely to qualify,
however.115
(vii) The exclusions

The exclusions fall into two groups. The first five exceptions listed under the definition
of ‘administrative action’ in s 1 of the PAJA, (aa)–(ee), track the Constitution’s division
between administrative action on the one hand, and executive action, legislative action
and judicial action on the other.116 The remaining four, (ff)–(ii), represent specific
choices made during the parliamentary process to exclude certain types of decisions
from the Act. The exclusions are as follows:
• Executive powers or functions117 of the national executive,118 provincial execu-
tives119 and municipal councils120 (paras (aa), (bb) and (cc) of the definition of
‘administrative action’).
• The legislative functions of Parliament, a provincial legislature or a municipal
council (para (dd)).121
• The judicial functions of judicial officers (judges and magistrates)122 and of
traditional leaders (para (ee)).
• Decisions to institute or continue a prosecution (para (ff)).123
• Decisions relating to the nomination, selection or appointment of a judicial officer or
any other person by the Judicial Service Commission (para (gg)).124
113
Oosthuizen’s Transport (Pty) Ltd v MEC, Road Traffıc Matters, Mpumalanga 2008 (2) SA 570 (T).
114
Ibid [28]–[29].
115
Viking Pony Africa Pumps (Pty) Ltd t/a Tricom Africa v Hidro-Tech Systems (Pty) Ltd 2011 (1) SA 327
(CC) [37].
116
See the discussion of the jurisprudence on s 33 above.
117
The test for distinguishing executive action from administrative action essentially remains the one in
SARFU (note 50 above) [142] read with Ed-U-College (note 51 above) [18]: administrative action is the
implementation of legislation, while executive functions are the development of policy in the broad sense, and
the initiation of legislation.
118
See eg Masetlha v President of the Republic of South Africa 2008 (1) SA 566 (CC) [76]–[77] (dismissal by
President of head of the National Intelligence Agency is executive in nature).
119
See eg City of Cape Town v Premier, Western Cape 2008 (6) SA 345 (C) [97] (Premier’s decision to appoint
a commission of inquiry is executive).
120
See eg Mazibuko (note 26 above) [131] (decision to introduce prepaid water meters is executive).
121
See eg Democratic Alliance v Ethekwini Municipality [2010] ZASCA 221 (30 November 2011) [19]–[20]
(council’s decision to rename streets and other places is legislative in nature).
122
See eg National Credit Regulator v Nedbank Ltd 2009 (6) SA 295 (GNP) 306F–H (magistrate making a
decision under s 87 of the National Credit Act 34 of 2005 fulfils a judicial role).
123
In Democratic Alliance v National Director of Public Prosecutions 2012 (3) SA 486 (SCA) [27] the
Supreme Court of Appeal declined to decide whether a decision to discontinue a prosecution also falls into this
category.
124
See Judicial Service Commission v Cape Bar Council 2013 (1) SA 170 (SCA) [19]–[20]. This exclusion
does not, however, apply to other decisions of the JSC: see eg Freedom Under Law v Acting Chairperson,
665
• Decisions under the Promotion of Access to Information Act 2 of 2000 (para (hh)).
• Decisions taken, or failure to take a decision, in terms of s 4(1) of the PAJA (para
(ii)).
The last two exceptions merit particular comment. Decisions under the Promotion of
Access to Information Act are immunised from review under the PAJA and also from its
procedural requirements.125 The reason is that the Information Act contains its own
specific review mechanisms and procedures for the consideration of requests for
information, and it therefore simplifies matters considerably to exclude the PAJA from
operating in respect of these. It is therefore not possible, for example, to request reasons
under the PAJA for a refusal of a request for access to information.
The exclusion of s 4(1) decisions has the effect of preventing review of an
administrator’s discretion to choose a particular procedure to follow before making a
decision affecting the public. The provision seems to be aimed at preventing PAJA
review of the exercise of this discretion but not at removing the statutory obligation
on administrators to take such a decision.126 Presumably it cannot prevent review of
the decision under the principle of legality, which applies to all exercises of public
power.127 Furthermore, once a decision has been made to follow one of the s 4
procedures, the exclusion does not prevent review of a failure to comply with the
provisions of sub-ss (2) and (3).128
29.4 LAWFUL ADMINISTRATIVE ACTION
(a) Under the Constitution

At its simplest, lawfulness means that administrators must obey the law and must have
lawful authority for their decisions. If an administrator makes a decision that is not
permitted by law, it acts unlawfully and the decision will be invalid. This is an ancient
principle of the common law.
The constitutionalisation of the principle in s 33(1) of the Constitution adds little to
its content, but it does have the important effect of preventing legislative ouster clauses.
These are provisions that seek to exclude or restrict the review jurisdiction of the courts,
thereby effectively permitting unlawful administrative action.129 At a minimum, the
right to lawful administrative action means that legislation may not oust a court’s
Judicial Service Commission 2011 (3) SA 549 (SCA) [50] (JSC’s decision to dismiss a complaint against a judge
constitutes administrative action).
125
See eg Sumbana v Head of Department of Public Works, Limpopo Province 2009 (3) SA 64 (V) [15] (PAJA
not applicable to a decision of an information officer under the PAIA, so PAJA provisions relating to exhaustion
of internal remedies were not relevant).
126
See further Currie (note 20 above) 3.25; De Ville (note 100 above) 66.
127
But compare the concurring opinion of O’Regan J in Residents of Joe Slovo Community, Western Cape v
Thubelisha Homes 2010 (3) SA 454 (CC) [300], which may cast doubt on this.
128
See New Clicks (note 31 above) [132].
129
In pre-democratic South Africa such clauses were particularly heavily relied upon in security and
immigration legislation. A typical example was s 29(6) of the Internal Security Act 74 of 1982: ‘No court of law
shall have jurisdiction to pronounce on any action taken in terms of this section, or to order the release of any
person detained in terms of the provisions of this section.’ Clauses like this were intended to prevent detainees
from approaching the courts for review of the administrative decision to detain them. The prohibition achieved
by s 33(1) overlaps with protection given by the right of access to court in s 34: see further Chapter 31 below.
666
constitutional jurisdiction or otherwise deprive the courts of their review function130 to

ensure the lawfulness of administrative action.
(b) Under the PAJA

The Promotion of Administrative Justice Act 3 of 2000 (PAJA) does not add much to
the common-law and constitutional understanding of the concept of lawfulness.131 The
Act gives effect to the constitutional right to lawful administrative action by providing a
right to judicial review of administrative action on a number of specific grounds as well
as a general ground of unlawfulness. These grounds are listed in s 6:
Judicial review of administrative action

6. (1) Any person may institute proceedings in a court or a tribunal for
the judicial review of an administrative action.
(2) A court or tribunal has the power to judicially review an administra-
tive action if—
(a) the administrator who took it—
(i) was not authorised to do so by the empowering provision;
(ii) acted under a delegation of power which was not authorised by
the empowering provision; or
(iii) was biased or reasonably suspected of bias;
(b) a mandatory and material procedure or condition prescribed by an
empowering provision was not complied with;
(c) the action was procedurally unfair;
(d) the action was materially influenced by an error of law;
(e) the action was taken—
(i) for a reason not authorised by the empowering provision;
(ii) for an ulterior purpose or motive;
(iii) because irrelevant considerations were taken into account or
relevant considerations were not considered;
(iv) because of the unauthorised or unwarranted dictates of
another person or body;
(v) in bad faith; or
(vi) arbitrarily or capriciously;
(f) the action itself—
(i) contravenes a law or is not authorised by the empowering pro-
vision; or
(ii) is not rationally connected to—
(aa) the purpose for which it was taken;
(bb) the purpose of the empowering provision;
130
See further Hoexter (note 34 above) 591.
131
Awumey v Fort Cox Agricultural College 2003 (8) BCLR 861 (Ck) (the right to lawful administrative
action, as given effect to in s 6 of PAJA, encompasses common-law requirements regarding the competence and
qualifications of administrators).
667
(cc) the information before the administrator; or

(dd) the reasons given for it by the administrator;
(g) the action concerned consists of a failure to take a decision;
(h) the exercise of the power or the performance of the function author-
ised by the empowering provision, in pursuance of which the
administrative action was purportedly taken, is so unreasonable
that no reasonable person could have so exercised the power or
performed the function; or
(i) the action is otherwise unconstitutional or unlawful.
A number of the listed grounds of review can be categorised under the right to lawful
administrative action. Notable among these are the grounds relating to lack of authority,
unauthorised delegation and failure to comply with a ‘mandatory and material procedure
or condition’ imposed by an empowering provision.
(c) Under the principle of legality

As already noted, an exercise of public power that does not qualify as administrative
action may still be reviewed under the principle of legality—the more general
constitutional counterpart of the rights to just administrative action. In Fedsure the
principle was found to imply that those who exercise public power must act within their
powers, or lawfully.132 Soon the SARFU case added that those who exercise public
power must also act in good faith and without misconstruing their powers133—
requirements that seem capable of encompassing all the Promotion of Administrative
Justice Act 3 of 2000 (PAJA) grounds of review that relate to lawfulness. In this sphere,
then, the principle of legality seems to be coextensive with the grounds of review in the
PAJA. Most notably, they both cover mistake of fact, a ground that is often regarded as
the last frontier of judicial review because of its propensity to blur the distinction
between review and appeal.134
The result is that cases involving such grounds are often litigated and decided without
reference to the PAJA. As the Constitutional Court explained in one of these cases,
Affordable Medicines:
The finding that the Minister acted ultra vires is in effect a finding that the Minister acted in
a manner that is inconsistent with the Constitution and his or her conduct is invalid. What
would have been ultra vires under common law by reason of a functionary exceeding his or
her powers is now invalid under the Constitution as an infringement of the principle of
legality.135
In recent years the principle of legality has become extremely popular with litigants and
the courts, particularly in cases involving lawfulness, as in this sphere there is no
132
Note 30 above [58].
133
134
This ground of review was recognised in Pepcor Retirement Fund v Financial Services Board 2003 (6) SA
38 (SCA), where it was applied under the principle of legality (the PAJA not having come into force at the
material time). Only later was it applied under the PAJA: see Chairpersons’ Association v Minister of Arts and
Culture 2007 (5) SA 236 (SCA).
135
Affordable Medicines Trust v Minister of Health 2006 (3) SA 247 (CC) [50] (Ngcobo J).
668
Just Administrative Action 29.4–29.5
apparent advantage in relying on the PAJA.136 Nevertheless, this approach effectively

sidesteps the statute enacted to give effect to the rights in s 33 of the Constitution.137
29.5 REASONABLE ADMINISTRATIVE ACTION

The principal effect on the common law of the constitutional right to reasonable
administrative action was to overrule the doctrine of symptomatic unreasonableness.
According to this doctrine, unreasonableness was not a reviewable defect in itself
(except where delegated legislation was concerned).138 The unreasonableness of a
decision was relevant only insofar as it was a ‘symptom’ of some other (supposedly less
invasive) ground of review relating to abuse of discretion.139 A subsequent gloss was
that the degree of unreasonableness had to be egregious in order to trigger this review
mechanism.140 Today, however, s 33(1) of the Constitution requires simply that all
administrative action be ‘reasonable’. Reasonableness is widely understood as having
two components: rationality and proportionality.
The straightforward formulation of s 33(1) may be contrasted with its more guarded
predecessor, s 24(d) of the interim Constitution, which conferred a right to
‘administrative action which is justifiable in relation to the reasons given for it’. In the
Bel Porto case141 a majority of the Constitutional Court saw this essentially as a
requirement of rationality rather than as including the principle of proportionality. By
contrast, in New Clicks142 Chaskalson CJ described s 33(1) as setting a ‘variable but
higher standard’ than s 24(d). The right to reasonable administrative action would in
many cases call for ‘more intensive scrutiny’ than would have been possible under the
interim Constitution.143
(b) Under the PAJA

In its draft Administrative Justice Bill the South African Law Commission proposed two
grounds of review relating to reasonableness. The first provided for rationality
review,144 and remains in the Promotion of Administrative Justice Act 3 of 2000 (PAJA)
in the form of s 6(2)(f)(ii). The second, clause 7(1)(g), would have provided for
proportionality review along the lines of the limitation inquiry envisaged by s 36 of the
136
See eg Diggers Development (Pty) Ltd v City of Matlosana [2010] ZAGPPHC 15 (9 March 2009)
[40]–[41] for an illustration of the overlap between the grounds offered by the PAJA and the principle of legality.
137
See further para 29.8 below.
138
Following Kruse v Johnson [1898] 2 QB 91 (review of delegated legislation for partiality and inequality,
manifest injustice, disclosing bad faith, or oppressive or gratuitous interference with rights).
139
Union Government (Minister of Mines and Industries) v Union Steel Corporation (South Africa) Ltd 1928
AD 220, 237. The common-law grounds of abuse of discretion are mala fides, ulterior motive and failure to apply
the mind.
140
National Transport Commission v Chetty’s Motor Transport (Pty) Ltd 1972 (3) SA 726 (A) 735 (a decision
must be ‘grossly unreasonable to so striking a degree’ that it warrants judicial interference).
141
Bel Porto School Governing Body v Premier, Western Cape 2002 (3) SA 265 (CC) [123]–[128]. Compare
the dissenting view of Mokgoro and Sachs JJ, who saw the provision as incorporating proportionality as well (at
[162]).
142
143
New Clicks (note 31 above) [108].
144
Clause 7(1)(f)(iii) of the proposed Bill in the Law Commission’s Report (note 20 above).
669
Constitution.145 This draft clause was not enacted, however, but was replaced by what is
today s 6(2)(h) of the PAJA. This provision makes no express reference to
proportionality, employing instead the tautologous Wednesbury formulation prohibiting
administrative action that is ‘so unreasonable that no reasonable person’ could have
taken it.146 This change, like much else in the Parliamentary Committee’s amendments
to the Bill, seems to have been motivated by a desire to reduce the scope of judicial
review.147
The provision of separate grounds in the statute suggests, rightly, that the two
grounds are conceptually distinct, and that while there may be some overlap between
them, reasonableness is not the same thing as rationality.148 The jurisprudence of the
Constitutional Court makes it clear that rationality is generally a less stringent or
intensive standard of review than reasonableness.149 Importantly, reasonableness
includes the notion of proportionality,150 which is absent from rationality alone. As the
Supreme Court of Appeal has explained it, an irrational decision ‘must necessarily be
one that no reasonable decision-maker could make, but an unreasonable one may not
necessarily be so because of irrationality’.151
The type of rationality review provided for in s 6(2)(f)(ii) of the PAJA is a fairly
rigorous and far-reaching one that goes well beyond the basic rationality tests associated
with the principle of legality or employed in other areas of South African constitutional
law.152 It allows for review where administrative action is not rationally connected to—
(aa) the purpose for which it was taken;
(bb) the purpose of the empowering provision;
(cc) the information before the administrator; or
(dd) the reasons given for it by the administrator.
This provision has found application in a number of cases.153
Section 6(2)(h) of the PAJA was expounded in Bato Star,154 where the
145
This clause permitted review of administrative action if ‘the effect of the action is unreasonable, including
any: (i) disproportionality between the adverse and beneficial consequences of the action; and (ii) less restrictive
means to achieve the purpose for which the action was taken.’
146
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (CA) 233–234 (a
decision ‘so unreasonable that no reasonable authority could ever have come to it’).
147
De Ville (note 100 above) 209 quotes the Joint Parliamentary Committee’s chairperson as saying that the
review ground proposed by the Law Commission would allow courts ‘to go too far into the merits and to make
political decisions’.
148
See Democratic Alliance v President of the Republic of South Africa 2013 (1) SA 248 (CC) [29].
149
See eg Bel Porto (note 141 above) [46]; Khosa v Minister of Social Development 2004 (6) SA 505 (CC)
[67] (reasonableness a higher standard than rationality).
150
As Sachs J remarked in New Clicks (note 31 above) [637], ‘[p]roportionality will always be a significant
element of reasonableness’.
151
Head, Western Cape Education Department v Governing Body, Point High School 2008 (5) SA 18 (SCA)
[16] (Hurt AJA).
152
In the equality jurisprudence of the Constitutional Court, for instance, s 9(1) of the Constitution requires
merely a rational relationship between a differentiation and the governmental purpose that it is supposed to serve:
Prinsloo v Van der Linde 1997 (3) SA 1012 (CC) [26]. For other examples, see Democratic Alliance (note 148
above) [31]. As Yacoob J remarked (at [32]), ‘rationality review is really concerned with the evaluation of a
relationship between means and ends: . . . between the means employed to achieve a particular purpose and the
purpose or end itself.’
153
See eg Trinity Broadcasting, Ciskei v Independent Communications Authority of South Africa 2004 (3) SA
346 (SCA) [36], [43], [48] and [50]; Total Computer Services (Pty) Ltd v Municipal Manager, Potchefstroom
Local Municipality 2008 (4) SA 346 (T); Eskom Holdings Ltd v New Reclamation Group (Pty) Ltd 2009 (4) SA
628 (SCA) [6].
154
Note 32 above.
670
Constitutional Court rejected the notion that the ground of review envisaged an
exaggerated form of unreasonableness. According to O’Regan J, it should be
understood to require a ‘simple test, namely, that an administrative decision will be
reviewable if . . . it is one that a reasonable decision-maker could not reach’.155
Reasonableness means, in other words, what is reasonable. As to the content of this
standard, the reviewing court or tribunal will conduct a circumstance-based enquiry
considering various factors. These include ‘the nature of the decision, the identity
and expertise of the decision-maker, the range of factors relevant to the decision, the
reasons given for the decision, the nature of the competing interests involved and the
impact of the decision on the lives and well-being of those affected’.156
Reasonableness review, the court indicated, has unavoidable substantive implications
and is not merely a procedural enquiry.157 However, ‘the distinction between appeals
and reviews continues to be significant. The court should take care not to usurp the
functions of administrative agencies.’158
What then might a reasonableness enquiry entail in addition to the consideration
of the rationality of a decision? While there is no explicit mention of proportionality
in s 6(2)(h), the list of factors offered in Bato Star lays a foundation for a
proportionality enquiry—perhaps especially the reference to the impact of the
decision.159 Furthermore, Bato Star makes it clear that in a case where an
equilibrium has to be struck between a range of competing interests or
considerations, the question is ultimately whether a ‘reasonable equilibrium’ has been
found.160 As O’Regan J indicated, this will entail giving due respect (showing
deference) to findings of fact and policy decisions made by those with special
expertise and experience in the field, and it will not mean rubber-stamping an
unreasonable decision simply because of its complexity or because of the identity of
the decision-maker.161
(c) Under the principle of legality and the rule of law

The Pharmaceutical Manufacturers case held that rationality is a ‘minimum threshold
requirement applicable to the exercise of all public power by members of the Executive
and other functionaries’ by virtue of the principle of legality.162 What is required is a
rational relationship between the exercise of the power and the purpose for which the
power was given—a version of rationality that seems to be considerably less rigorous
than the provisions of s 6(2)(f)(ii) of the Promotion of Administrative Justice Act 3 of
2000 (PAJA). Still, this basic rationality requirement proved effective in that case,
155
Ibid [44].
156
Ibid [45].
157
Ibid. A case that clearly illustrates that reasonableness review (even on a deferential rationality standard)
unavoidably entails a second-guessing of the substance of an administrative decision is Stanfield v Minister of
Correctional Services 2003 (12) BCLR 1384 (C) (decision not to grant parole on medical grounds to terminally
ill prisoner was unreasonable).
158
Bato Star (note 32 above) [45], and see also eg Trinity Broadcasting (note 153 above) [20] (reasonableness
review not intended to test the merits in the same way as in an appeal).
159
This was a factor in the important case of Ehrlich v Minister of Correctional Services 2009 (2) SA 373 (E),
where a decision to deny a class of prisoners access to a gymnasium was held to be unreasonable in several
different senses including disproportionality.
160
Bato Star (note 32 above) [48].
161
Ibid [49].
162
Note 15 above [90].
671
where the President had proclaimed a statute into force prematurely; and also in
Kruger,163 where the President was found to have brought into force an arbitrary
selection of provisions. It has also, more recently and more famously, resulted in the
setting aside of the President’s appointment of an unsuitable person to the position of
National Director of Public Prosecutions. In Democratic Alliance v President of the
Republic of South Africa164 the Constitutional Court indicated that ‘both the process by
which the decision is made and the decision itself must be rational’, and that ‘everything
done in the process of taking th[e] decision constitutes means towards the attainment of
the purpose for which the power was conferred’. Furthermore, it confirmed that a failure
to take relevant considerations into account may result in an irrational decision.165 In
spite of the court’s insistence that a rationality standard is the ‘lowest possible
threshold’166 for the validity of executive decisions, its analysis suggests that the
threshold is not much below that set by s 6(2)(f)(ii) of the PAJA.167
Importantly, the rationality requirement has also led to further development of the
principle of legality in the areas of procedural fairness (discussed under 29.6 below) and
reason-giving (discussed under para 29.7 below). All that remains is for the principle of
legality to be developed so as to encompass reasonableness in the full sense, including
proportionality.168
It is not only the principle of legality that plays a role in reasonableness review. Since
1994, its parent doctrine, the rule of law, has facilitated the application of common-law
principles of administrative law to non-administrative action. For example, original
legislation cannot qualify as administrative action but is still subject to the rule against
vagueness,169 which was a very important part of the doctrine of reasonableness at
common law. But these days even delegated legislation, some of which does seem to
qualify as administrative action, is often reviewed for vagueness on the basis of the rule
of law rather than under the PAJA.170 The effect in such a case is to sidestep the PAJA.
29.6 PROCEDURALLY FAIR ADMINISTRATIVE ACTION

Section 33(1) of the Constitution grants a right to administrative action that is
procedurally fair. At a minimum, this right entrenches the common-law entitlement to
natural justice without necessarily being confined to it.171 As at common law, however,
163
Kruger v President of the Republic of South Africa 2009 (1) SA 417 (CC).
164
Note 148 above [34] and [36] (Yacoob ADCJ).
165
Ibid [39].
166
Ibid [42].
167
See also in this regard [44], where Yacoob ADCJ stated: ‘Rationality does not conceive of differing
thresholds. It cannot be suggested that a decision that would be irrational in an administrative law setting might
mutate into a rational decision if the decision being evaluated was an executive one.’ Although this remark was
made in relation to the separation of powers, and without reference to the rationality ground in the PAJA, its
implications seem undeniable.
168
In his minority judgment in New Clicks (note 31 above) [579] et seq, Sachs J favoured just such a
development: he regarded subordinate legislation as being most appropriately controlled by the principle of
legality on the ground of reasonableness, including proportionality.
169
See eg Dawood v Minister of Home Affairs 2000 (3) SA 936 (CC) [47]; Bertie van Zyl (Pty) Ltd v Minister
for Safety and Security 2010 (2) SA 181 (CC) [22].
170
See eg Affordable Medicines Trust (note 135 above) [108].
171
Bel Porto (note 141 above) [84].
672
procedural fairness has to be distinguished from substantive fairness. In Bel Porto, the
Constitutional Court’s last decision on the constitutional right to procedural fairness
prior to the commencement of PAJA, the majority rejected an expansive reading,
proposed by Sachs J and Mokgoro J, of the concepts of ‘procedural fairness’ and
‘administrative justice’.172 At common law procedural fairness has always been
distinguished from substantive fairness, and the majority view was that the
constitutional right remained confined to the former.173
The common-law rules of natural justice are encapsulated in two maxims: audi
alteram partem (persons affected by a decision should be given a fair hearing by the
decision-maker prior to the making of the decision)174 and nemo iudex in sua causa (the
decision-maker must be, and must be reasonably perceived to be, impartial). However,
not all decisions attracted natural justice at common law. For many years the position
was that decisions with a general impact did not attract natural justice at all, and a
hearing was warranted only in respect of decisions having an adverse effect on an
individual’s existing rights.175 Towards the end of the pre-democratic era, however, the
application of natural justice was considerably expanded by the highest court.
Ultimately a hearing would also be warranted if a decision having a general impact was
likely to cause particular prejudice to individuals or a group of individuals,176 or where a
decision would disappoint someone’s legitimate expectation.177
By contrast, s 33(1) seems to say that all administrative action must be procedurally
fair. However, it is clear that what fairness demands may vary from case to case. What
procedures will satisfy the requirement of a hearing always depends on the
circumstances of the case178 and its ‘exigencies and practicalities’.179 In this regard, the
Constitutional Court had the following to say in the seminal case of Premier,
Mpumalanga:
In determining what constitutes procedural fairness in a given case, a court should be slow to
impose obligations upon government which will inhibit its ability to make and implement
policy effectively (a principle well recognised in our common law and that of other
countries). As a young democracy facing immense challenges of transformation, we cannot
deny the importance of the need to ensure the ability of the executive to act efficiently and
172
Ibid [152]–[156] (four sub-clauses of item 23 must be read together as ‘animated by a broad concept of
fairness’).
173
Ibid [86]–[88].
174
On the purpose behind the constitutional protection of this aspect of fairness, see De Lange v Smuts NO
1998 (3) SA 785 (CC) [131] (Mokgoro J): ‘Everyone has the right to state his or her case, not because his or her
version is right, and must be accepted, but because, in evaluating the cogency of any argument, the arbiter, still a
fallible human being, must be informed about the points of view of both parties in order to stand any real chance
of coming up with an objectively justifiable conclusion that is anything more than chance’. De Ville (note 100
above) 217 characterises this as an ‘instrumental’ rationale for procedural fairness (the purpose of fairness is to
improve the quality of decision-making) as opposed to a non-instrumental rationale (the purpose of fairness is to
protect an individual’s dignity by allowing an opportunity to participate in decisions affecting him or her).
175
In terms of the classification of functions, such a decision qualified as ‘quasi-judicial’ and thus attracted
natural justice. Legislative and ‘purely administrative’ decisions, on the other hand, did not.
176
South African Roads Board v Johannesburg City Council 1991 (4) SA 1 (A) (declaration of toll road likely
to cause particular prejudice to the Johannesburg City Council, and the council was thus entitled to be heard
before the decision was taken).
177
Administrator, Transvaal v Traub (note 62 above). On the development of the legitimate expectation
doctrine both before and after 1994, see Hoexter (note 34 above) 394–396 and 421–436.
178
Premier, Mpumalanga (note 88 above) [39]; Bel Porto (note 141 above) [104]; Zondi (note 29 above)
[113]–[114].
179
Masetlha (note 118 above) [190] (Ngcobo J).
673
promptly. On the other hand, to permit the implementation of retroactive decisions without,
for example, affording parties an effective opportunity to make representations would flout
another important principle, that of procedural fairness. . . . Citizens are entitled to expect
that government policy will ordinarily not be altered in ways which would threaten or harm
their rights or legitimate expectations without their being given reasonable notice of the
proposed change or an opportunity to make representations to the decision-maker.180
(b) Under the PAJA

The provisions of the Promotion of Administrative Justice Act 3 of 2000 (PAJA)
provide some detail as to the procedures to be followed in fulfilling the right to
procedural fairness.181 In this regard the Act makes a distinction between administrative
action ‘affecting any person’ and administrative action ‘affecting the public’. The former
is dealt with in s 3 and the latter in s 4.
(i) Administrative action affecting any person: s 3 of the PAJA
Procedurally fair administrative action affecting any person

3. (1) Administrative action which materially and adversely affects
the rights or legitimate expectations of any person must be
procedurally fair.
(2) (a) A fair administrative procedure depends on the circumstances
of each case.
(b) In order to give effect to the right to procedurally fair
administrative action, an administrator, subject to subsection (4), must
give a person referred to in subsection (1)—
(i) adequate notice of the nature and purpose of the proposed
administrative action;
(ii) a reasonable opportunity to make representations;
(iii) a clear statement of the administrative action;
(iv) adequate notice of any right of review or internal appeal, where
applicable; and
(v) adequate notice of the right to request reasons in terms of section
5.
(3) In order to give effect to the right to procedurally fair
administrative action, an administrator may, in his or her or its
discretion, also give a person referred to in subsection (1) an
opportunity to—
(a) obtain assistance and, in serious or complex cases, legal
representation;
(b) present and dispute information and arguments; and
(c) appear in person.
180
Note 88 above [41].
181
The other aspect of natural justice, the rule against bias, is captured in 6(2)(a)(iii) of the Act. This allows
review of administrative action on the ground that the administrator who took it ‘was biased or reasonably
suspected of bias’.
674
(4) (a) If it is reasonable and justifiable in the circumstances, an

administrator may depart from any of the requirements referred to in
subsection (2).
(b) In determining whether a departure as contemplated in paragraph
(a) is reasonable and justifiable, an administrator must take into
account all relevant factors, including—
(i) the objects of the empowering provision;
(ii) the nature and purpose of, and the need to take, the
(iii) the likely effect of the administrative action;
(iv) the urgency of taking the administrative action or the urgency of
the matter; and
(v) the need to promote an efficient administration and good
governance.
(5) Where an administrator is empowered by any empowering
provision to follow a procedure which is fair but different from the
provisions of subsection (2), the administrator may act in accordance
with that different procedure.
(aa) The scope of s 3(1)

Apparently as a result of a drafting error,182 the scope of s 3(1) differs from the
definition of ‘administrative action’ in s 1 in two ways. Whereas s 1 makes the Act
applicable to administrative action that adversely affects rights, s 3 applies to
administrative action that adversely affects ‘rights or legitimate expectations’. Secondly,
s 3 uses the adverb ‘materially’ in addition to ‘adversely’. Over the years academic
commentators suggested a range of solutions to the first conflict in particular,183 but the
approach ultimately adopted by the Constitutional Court was simpler than most of these
proposals. Addressing this issue in Walele v City of Cape Town, Jafta AJ wrote as
follows for the majority:
[T]he difficulty is that administrative action is defined in s 1 of PAJA as a decision which
adversely affects the rights of another person. In the definition no reference is made to a
decision affecting legitimate expectations. Yet s 3 refers to administrative action that affects
legitimate expectations. Applying the definition to the interpretation of s 3 will lead to
absurdity. Therefore, I am willing not to apply it and to assume that s 3 of PAJA confers the
right to procedural fairness also on persons whose legitimate expectations are materially and
182
In the Law Commission’s draft Bill the definition of administrative action contained no requirement
relating to adversely affected rights; and procedural fairness was attracted by administrative action affecting
‘rights, interests or legitimate expectations’. During the parliamentary stage, however, considerable effort was
made to narrow the scope of the legislation. In particular, the concept ‘rights’ was introduced into the definition
of administrative action and the word ‘interests’ was deleted from the procedural fairness provision. The failure
also to delete ‘legitimate expectations’ seems to have been inadvertent.
183
In both the fourth edition (2001) and fifth edition (2007) of this work it was argued that only administrative
action materially affecting rights would have to be procedurally fair, but that the addition of legitimate
expectations ‘ma[de] the narrowing brought about by the addition of ‘‘materially’’ slightly less narrow’. Various
other solutions were proposed by De Ville (note 100 above) 222–233; Currie (note 20 above) 4.7–4.8; and
R Stacey ‘Substantive Protection of Legitimate Expectations in the Promotion of Administrative Justice Act:
Tirfu Raiders Rugby Club v SA Rugby Union’ (2006) 22 SAJHR 664.
675
adversely affected by an administrative decision. In the context of s 3, administrative action

cannot mean what was intended in the definition section.184
In Joseph v City of Johannesburg185 the same court understood ‘materially’ to mean
simply that the administrative action must have ‘a significant and not trivial effect’. In
this case the landlord of an inner-city building had fallen into arrears with his payments
for electricity. This resulted in a decision by the city to disconnect the supply, thus
depriving the applicants, tenants in the building, of electricity. In these circumstances
the court was willing to accept in advance that ‘if any rights of the applicants were
affected, such effect was material and adverse’.186 This ready acceptance is not
surprising, for it seems unlikely that an adverse effect on rights could ever be trivial.187
(bb) Section 3(1) and ‘rights’

The cases discussed immediately above, Walele and Joseph, illustrate widely divergent
attitudes as to the type of right required for the purposes of s 3(1). The first case arose
out of the city’s decision to approve certain building plans for a block of flats. The
applicant for review, Walele, was the owner of neighbouring property. He argued inter
alia that he ought to have been heard in the approval process since the block of flats
would devalue his own property. In dismissing this argument, the majority took a literal
and legalistic approach to the wording of the PAJA by insisting that s 3(1) required a
‘pre-existing right’ (or legitimate expectation) that would be materially and adversely
affected ‘by the administrative decision itself’.188 Jafta AJ reasoned that the approval
could not in itself affect the applicant’s property rights, even if the subsequent erection
of the block of flats might do so (an outcome which the applicant had in any event failed
to prove).189
In Joseph, by contrast, the court was willing to identify a new species of ‘public-law
right’, a right corresponding to the constitutional and legal duty on local government to
provide municipal services, including electricity. Here the Constitutional Court’s
approach was bold and creative rather than literal, for most of the provisions it relied on
deal with municipal services only in the most general way, and only one of them
actually mentions electricity.190 In concluding that the applicants had a ‘right’ for the
purposes of s 3(1) of the PAJA, the court reasoned as follows:
[W]hen City Power supplied electricity to Ennerdale Mansions, it did so in fulfilment of the
constitutional and statutory duties of local government to provide basic municipal services
to all persons living in its jurisdiction. When the applicants received electricity, they did so
by virtue of their corresponding public-law right to receive this basic municipal service. In
184
Note 40 above [37]. In her dissenting judgment O’Regan ADCJ came to a similar conclusion by reasoning
that the more specific provision (s 3(1)) had to be read as supplementing the more general provision (s 1). ‘If this
were not to be done’, she observed, ‘the clear legislative intent to afford a remedy to those whose legitimate
expectations are materially and adversely affected would be thwarted’ (at [126]).
185
Note 42 above [31] (Skweyiya J).
186
Ibid.
187
See the remarks of Plasket J in Kiva (note 90 above) [23].
188
Walele (note 40 above) [32].
189
Ibid. Notably, the courts have not adopted this literal approach in the context of the right to reasons for
administrative action even though s 33(2) of the Constitution presupposes rights that have been adversely
affected by the administrative action. See further at para 29.7 below.
190
Section 9(1)(a)(iii) of the Housing Act 107 of 1997 refers to electricity as one of the services that must be
provided in an economically efficient manner. The other provisions, ss 152(1) and 153 of the Constitution and
ss 4(2) and 73 of the Local Government: Municipal Systems Act 32 of 2000, do not mention electricity at all.
676
depriving them of a service which they were already receiving as a matter of right, City
Power was obliged to afford them procedural fairness before taking a decision which would
materially and adversely affect that right.191
The reasoning in Joseph lends itself to other contexts, too, and to that extent the
public-law duty and its corresponding right greatly improves an applicant’s chances of
being able to trigger the application of s 3(1). Indeed, in future it may be easier in many
cases to establish a right than a legitimate expectation, even though an expectation is
supposedly something less than a right.
(cc) The content of procedural fairness

Section 3(2)(a) restates the guiding principle of procedural fairness under the common
law as well as under the Constitution: ‘A fair administrative procedure depends on the
circumstances of each case’.
Beyond imposing a statutory duty to provide procedural fairness, an innovation of the
PAJA is to separate procedural fairness into five compulsory elements and three
discretionary ones. The compulsory elements are adequate notice, an opportunity to
make representations, a clear statement of the administrative action, notice of any right
of review or internal appeal and notice of the right to request reasons. The discretionary
elements are an opportunity to obtain assistance or legal representation, to present and
dispute information and arguments, and to appear in person. Whereas the discretionary
elements may be provided if necessary to achieve procedural fairness in a particular
case, the compulsory elements appear to be minimum requirements that must be
provided by an administrator in every instance. The only stated exceptions to this are
s 3(4), which allows for an administrator to depart from the requirements of s 3(2) where
it is reasonable and justifiable to do so; and s 3(5), which allows for the use of
procedures that are ‘fair but different’ from the provisions of s 3(2).
But the apparently mandatory nature of the five elements of s 3(2)(b) is deceptive.
First, the elements are always subject to interpretation informed by a circumstance-
based understanding of procedural fairness. Their content will thus tend to vary from
case to case. Secondly, in several elements the scope for variation is increased by the use
of inherently flexible standards. For instance, notice in each case must be ‘adequate’ and
there must be a ‘reasonable’ opportunity to make representations. Thirdly, the
Constitutional Court has held that s 3(2)(a) must be read as giving the courts discretion
in enforcing the minimum requirements under s 3(2)(b) even when s 3(4) is not
invoked.192 In other words, the court is not bound to enforce even the compulsory
requirements, and an administrator may be able to depart from them without relying on
s 3(4). For instance, in Joseph itself the court enforced the requirement of
pre-termination notice but accepted that it would be too much to expect the city to
receive and process representations from tenants in every instance.193 The result of all
this is that the five elements in s 3(2)(b) are not really compulsory at all, and the law
191
Joseph (note 42 above) [47] (Skweyiya J).
192
Ibid [57]–[59]. As Skweyiya J explained (at [59]), to hold otherwise ‘would hamstring the courts in cases
such as this one, where an administrator fails to recognise that it is bound by the procedural fairness requirements
under PAJA. . . . It would, moreover, result in circuitous litigation if this court were to postpone considering the
reasonableness of departing from the minimum requirements until the administrator acts under s 3(4) and such a
decision is taken on review.’
193
Ibid [62]–[63], where the court added that it remained open to users ‘to approach City Power to challenge
the proposed termination or to tender appropriate arrangements to pay off arrears’.
677
relating to the content of procedural fairness is not nearly as certain or as clear as it looks
on paper.
As for the discretionary elements, there is a duty to consider granting them as
circumstances require.194 So, in deciding what to grant in the way of procedural fairness,
administrators will necessarily be subject to the law governing the making of
discretionary decisions. Simply put, the decision must be lawful and reasonable, and is
unlikely to be so if, for instance, legal representation is warranted in a particular case but
the administrator decides not to allow it.195
As already noted, s 3(4)(a) allows administrators to depart from the compulsory
elements of s 3(2) ‘if it is reasonable and justifiable in the circumstances’. Section 3(5)
provides for the use of a fair but different procedure mandated by an empowering
provision. Essentially, this means that as long as the other procedure is considered ‘fair’
it may be followed to the exclusion of the procedures listed in the PAJA.196 It should be
noted that only procedures in empowering provisions can qualify as fair but different, ie
‘a law, a rule of common law, customary law, or an agreement, instrument or other
document in terms of which an administrative action was purportedly taken’.
An additional provision allowing exemptions or departures from the procedures
required by s 3 is s 2 of the PAJA. This section allows the Minister to exempt an
administrative action or group or class of administrative action from the application of
s 3 (and also of ss 4 and 5). Alternatively, the Minister may permit an administrator to
vary the procedural requirements of s 3. Any such exemptions or variations must be
approved by Parliament and published by notice in the Gazette.197
(ii) Administrative action affecting the public: s 4 of the PAJA
4. Administrative action affecting public

(1) In cases where an administrative action materially and adversely
affects the rights of the public, an administrator, in order to give effect
to the right to procedurally fair administrative action, must decide
whether—
(a) to hold a public inquiry in terms of subsection (2);
(b) to follow a notice and comment procedure in terms of subsection
(3);
(c) to follow the procedures in both subsections (2) and (3);
194
Schoon v MEC, Department of Finance, Economic Affairs and Tourism, Northern Province [2003] 9 BLLR
963 (T) (necessary to exercise the discretion in s 3(3)(a) of PAJA and consider whether a case is sufficiently
serious or complex to require legal representation rather than relying on a blanket rule).
195
See eg Hamata v Chairperson, Peninsula Technikon Internal Disciplinary Committee 2002 (5) SA 449
(SCA) [11].
196
See eg Patel v Chief Immigration Offıcer, OR Tambo International Airport [2009] 4 All SA 278 (GNP)
[41]–[42] (attenuated opportunity to make representations different but fair in the circumstances), and cf
Magingxa (note 93 above) 110–111 (a procedure excluding a prior hearing would not be fair, and therefore could
not substitute for the procedures required by s 3(2)).
197
At the time of writing, no such exemptions or variations had been granted; but it does seem ‘extreme to
allow not only for departures but also for exemptions and variations—particularly since the requirements of
fairness laid down in the relevant sections are intrinsically flexible’: Hoexter (note 34 above) 382.
678
(d) where the administrator is empowered by any empowering

provision to follow a procedure which is fair but different, to follow
that procedure; or
(e) to follow another appropriate procedure which gives effect to
section 3.
(2) If an administrator decides to hold a public inquiry—
(a) the administrator must conduct the public inquiry or appoint a
suitably qualified person or panel of persons to do so; and
(b) the administrator or the person or panel referred to in paragraph
(a) must—
(i) determine the procedure for the public inquiry, which must—
(aa) include a public hearing; and
(bb) comply with the procedures to be followed in connection
with public inquiries, as prescribed;
(ii) conduct the inquiry in accordance with that procedure;
(iii) compile a written report on the inquiry and give reasons for
any administrative action taken or recommended; and
(iv) as soon as possible thereafter—
(aa) publish in English and in at least one of the other official
languages in the Gazette or relevant provincial Gazette a
notice containing a concise summary of any report and
the particulars of the places and times at which the report
may be inspected and copied; and
(bb) convey by such other means of communication which the
administrator considers effective, the information referred
to in item (aa) to the public concerned.
(3) If an administrator decides to follow a notice and comment
procedure, the administrator must—
(a) take appropriate steps to communicate the administrative action to
those likely to be materially and adversely affected by it and call
for comments from them;
(b) consider any comments received;
(c) decide whether or not to take the administrative action, with or
without changes; and
(d) comply with the procedures to be followed in connection with
notice and comment procedures, as prescribed.
(4) (a) If it is reasonable and justifiable in the circumstances, an
administrator may depart from the requirements referred to in
subsections (1)(a) to (e), (2) and (3).
(a) is reasonable and justifiable, an administrator must take into
account all relevant factors, including—
679
(ii) the nature and purpose of, and the need to take, the
(iii) the likely effect of the administrative action;
(iv) the urgency of taking the administrative action or the urgency of
the matter; and
(v) the need to promote an efficient administration and good
governance.
The PAJA introduces into South African administrative law certain general procedures
that govern administrative action affecting the public. The two procedures outlined in
some detail in s 4 of the Act are a notice and comment procedure198 and a public inquiry
procedure.
Prior to the constitutional transition and the enactment of the PAJA, most
administrative action affecting the public generally was regarded as ‘legislative’
action. Under the common law this category of administrative action was not subject
to requirements of procedural fairness, and the main source of accountability was
bureaucratic.199 The PAJA’s provisions requiring procedural fairness prior to the
adoption of legislation are therefore an important innovation in South African
administrative law. So far, however, the Constitutional Court has not had a great deal
to say about their use.200
(aa) The scope of s 4: what is administrative action that affects the rights of
the public?
Section 4 of the PAJA is applicable only to ‘cases where an administrative action
materially and adversely affects the rights of the public’. This threshold language of s 4
of the PAJA is textually different from the language of s 3 and from the language of the
definition of ‘administrative action’ in s 1. As we have seen, s 3 applies to
‘administrative action which materially and adversely affects the rights or legitimate
expectations of any person’; and the definition section, s 1(i)(b), refers only to ‘rights’
and not ‘rights or legitimate expectations’.
There are two basic differences between the scope of s 3 and the scope of s 4. First,
s 3 applies to both rights and legitimate expectations. Section 4 is narrower and does not
apply where it is the legitimate expectations of members of the public that are at issue
rather than their rights. Secondly, s 3 applies where one or more individuals are
concerned, while s 4 applies only where the rights of members of the public are
concerned.201
198
For a general introduction to notice-and-comment rulemaking, see LG Baxter ‘Rulemaking and Policy
Formulation in South African Administrative Law’ 1993 Acta Juridica 176.
199
See C O’Regan ‘Rules for Rule-Making: Administrative Law and Subordinate Legislation’ 1993 Acta
Juridica 157.
200
Section 4 of the PAJA was relied on obliquely in Eisenberg (note 63 above), was held to have been satisfied
in New Clicks (note 31 above), and featured briefly in MEC, Department of Agriculture, Conservation and
Environment v HTF Developers (Pty) Ltd 2008 (2) SA 319 (CC); while an argument based on s 4 failed in
Mazibuko (note 26 above).
201
The Law Commission originally conceived of s 4 as a more specific version of the general duty to act fairly
that is set out in s 3. The Parliamentary Committee amended the Law Commission’s draft Bill so as to create two
separate and unrelated procedural fairness regimes, but in this process a reference to s 3 contained in s 4(1)(e)
680
An appropriate test to identify ‘administrative action materially and adversely

affecting the rights of the public’ is the following: the administrative action must (1)
have an adverse impact of a general kind; (2) the rights of members of the public must
be at issue; and (3) the impact must not be trivial.
To have a general impact, administrative action must apply to members of the public
equally and impersonally. For example, a regulation raising the petrol price does not
target identifiable persons on the basis of facts peculiar to each of them but has an
impact on members of the public equally and impersonally. Naturally the impact of such
a decision may be greater on certain members of the public than others. A petrol price
increase will have a more significant and direct impact on motor vehicle owners than on
other persons, and will affect taxi operators more than occasional drivers. However, the
decision remains a decision with a general impact since it affects impersonally all
persons using road transport and applies generally rather than on a case-by-case basis.
Secondly, rights must be in issue. In accordance with the discussion above of s 1 and
s 3 of the PAJA, this leg of the test ought to be satisfied relatively easily.202 To have a
general impact with a significant public effect, administrative action will need to pass
some threshold test as to significance. This threshold will have to be worked out on a
case-by-case basis and will obviously vary according to the subject matter. The impact
may be on tangible assets such as money, property or other resources, or may affect
personality rights such as dignity or freedom of expression.
Significance should be judged collectively rather than individually. It is the
cumulative effect or significance that is of importance for the triggering of s 4 public
procedures. However, the cumulative effect may not be as strong where individual
non-material effects are involved, such as dignity. Here, the argument for particularised
(s 3) hearings will tend to be stronger.
(bb) The content of section 4

Section 4 has a fairly straightforward structure. Section 4(1) requires a decision to be
taken as to which one of five optional procedures is followed. The remainder of the
section details the procedures to be followed in two of those options, the notice and
comment procedure and the public inquiry procedure, and allows for departures from
them.
On the face of it, s 4(1) is mandatory: an administrator about to make a decision
affecting the public must decide on a procedure to follow. Nonetheless, there is no
explicit remedy for the failure to comply with this duty. Indeed, as we have seen,
decisions taken in terms of s 4(1) are specifically excluded from the definition of
administrative action in s 1. This means that one cannot use the PAJA package of
remedies (including a request for reasons) to remedy a failure to make this decision; but
one would, it seems, be able to use the principle of legality instead.
was inadvertently retained. In spite of this reference, s 4 ought to be regarded as a free-standing provision and not
as linked to s 3. See further Hoexter (note 34 above) 416–417.
202
De Ville (note 100 above) 227–228 notes the conceptual difficulties of the phrase ‘rights of the public’ (the
public does not have ‘rights’ in the traditional legal sense) and proposes reading s 4 as applicable when the
interests of the public are affected by administrative action.
681
(c) Procedural fairness under the principle of legality

In Masetlha203 the Constitutional Court considered a special type of ‘executive’
dismissal of the head of the National Intelligence Agency (NIA) by the President. It
found that this exercise of public power was governed by the principle of legality rather
than by the PAJA or labour legislation. As to whether the President ought to have heard
the head of the NIA before dismissing him, the court declined to hold that this was a
requirement of the principle of legality as it ‘would not be appropriate to constrain
executive power to requirements of procedural fairness’.204 In a dissenting judgment,
however, Ngcobo J held that all who exercise public power must act procedurally fairly
by reason of the existing requirement of rationality. A fair hearing ensures that the
decision-maker has all the facts and thus provides ‘insurance against arbitrariness’, the
sworn enemy of rationality.205
This approach attracted the unanimous support of the same court in a subsequent case
dealing with executive power, Albutt.206 The case concerned the President’s power to
pardon offenders under s 84(2)(j) of the Constitution. More specifically, the question
was whether the President had to give victims (or their families) a hearing before
deciding whether to pardon offenders under a specific pardoning dispensation for
politically motivated offences. The same judge, now Ngcobo CJ, again relied on the
existing requirement of rationality demanded by the rule of law and the principle of
legality, and reasoned that there had to be a rational relationship between the aims of the
pardoning dispensation and the exercise of the power to pardon. The court concluded
that the exclusion of victims from the process was not rationally related to the
achievement of the aims of the dispensation—national reconciliation and nation-
building—and further that the President would not be in a position to establish an
offender’s motive unless he heard from victims as well as offenders. In the result,
procedural fairness was required ‘as a matter of rationality’.207 The court was careful to
confine its reasoning to the facts of the case. Nevertheless, Albutt breaks important new
ground by establishing that rationality may require procedural fairness to be observed in
a particular case.208
29.7 THE RIGHT TO REASONS FOR ADMINISTRATIVE ACTION

Before 1994 there was no general right to reasons for administrative action. At common
law reasons had to be given only in certain circumstances, such as arrest. Statutes rarely
included an explicit requirement to give reasons,209 but the courts were occasionally
prepared to find an implied statutory duty.210 The courts were also willing on occasion to
203
Note 118 above.
204
Ibid [77].
205
Ibid [184]–[189].
206
Albutt v Centre for the Study of Violence and Reconciliation 2010 (3) SA 293 (CC).
207
Ibid [72].
208
There are also other ways of importing procedural fairness into the principle of legality. Procedural fairness
is widely recognised as ‘inherent’ in the rule of law, as acknowledged in Hospital Association (note 31 above)
[65]. Procedural fairness could also be required as an aspect of lawfulness in a particular case, as occurred in
Competition Commission of SA v Telkom SA Ltd [2010] 2 All SA 433 (SCA) [13] (in relation to the requirement
of impartiality).
209
See Baxter (note 4 above) 226 fn 239 for examples.
210
See eg Ngqumba v Staatspresident 1988 (4) SA 224 (A) in relation to arrest and detention in terms of State
of Emergency regulations.
682
draw an adverse inference from a failure or refusal to give reasons.211 For the most part,
however, the law lacked an important means of ensuring administrative accountability
and justification. A general duty to give reasons is therefore a significant feature of
post-1994 South African administrative law.
(a) Triggering the right to reasons

The constitutional right to reasons was first introduced by s 24(c) of the interim
Constitution, which provided a right to reasons in writing where a person’s ‘rights or
interests’ were ‘affected’ by administrative action. It was in this context that the
Supreme Court of Appeal held in Transnet v Goodman Brothers212 that a mere applicant
was entitled to reasons for its failure to be awarded a tender—not on the basis of the
applicant’s interests, as one might suppose, but by virtue of other parts of its right to just
administrative action. In the absence of reasons, the majority held, the applicant’s rights
to lawful and procedurally fair administrative action would be adversely affected in the
sense that the applicant would have no way of knowing whether those rights had been
infringed.213
Apart from its circularity, this reasoning ensured that ‘trigger rights’ would inevitably
be present and thus made the requirement of ‘rights or interests’ redundant.
Furthermore, the wording of s 24(c) suggested that rights had to be affected ‘by the
administrative action itself’, to use the words of Jafta AJ in Walele,214 rather than by the
failure to give reasons for it. By relying on the right to equality, the separate judgment of
Olivier JA in Goodman Brothers avoided circularity but was still open to the other two
objections.
The constitutional right is now contained in s 33(2) of the 1996 Constitution. This is
somewhat narrower than s 24(c), as it applies only to those whose rights have been
adversely affected by administrative action. Section 33(2) is given effect by s 5 of the
Promotion of Administrative Justice Act 3 of 2000 (PAJA), which adds a number of
further qualifications. In the result, adequate written reasons have to be given within a
certain time, but only to a person whose rights have been ‘materially and adversely’
affected by administrative action—and then only if the person has requested reasons
timeously, and if reasons have not already been given for the action. Some of these
qualifications are discussed in what follows.
Reasons for administrative action

5. (1) Any person whose rights have been materially and adversely
affected by administrative action and who has not been given reasons
for the action may, within 90 days after the date on which that person
became aware of the action or might reasonably have been expected to
have become aware of the action, request that the administrator con-
cerned furnish written reasons for the action.
211
Judes v District Registrar of Mining Rights, Krugersdorp 1907 TS 1046, 1052, and see eg Oskil Properties
(Pty) Ltd v Chairman of the Rent Control Board 1985 (2) SA 234 (SE) 246.
212
Note 87 above.
213
Ibid [11].
214
Note 40 above [32]; and see further note 189 above.
683
(2) The administrator to whom the request is made must, within 90

days after receiving the request, give that person adequate reasons in
writing for the administrative action.
(3) If an administrator fails to furnish adequate reasons for an admin-
istrative action, it must, subject to subsection (4) and in the absence of
proof to the contrary, be presumed in any proceedings for judicial review
that the administrative action was taken without good reason.
(4) (a) An administrator may depart from the requirement to furnish
adequate reasons if it is reasonable and justifiable in the circumstances,
and must forthwith inform the person making the request of such depart-
ure.
(a) is reasonable and justifiable, an administrator must take into account
all relevant factors, including—
(ii) the nature, purpose and likely effect of the administrative action
concerned;
(iii) the nature and the extent of the departure;
(iv) the relation between the departure and its purpose;
(v) the importance of the purpose of the departure; and
(vi) the need to promote an efficient administration and good govern-
ance.
(5) Where an administrator is empowered by any empowering provi-
sion to follow a procedure which is fair but different from the provisions
of subsection (2), the administrator may act in accordance with that dif-
ferent procedure.
(6) (a) In order to promote an efficient administration, the Minister
may, at the request of an administrator, by notice in the Gazette publish
a list specifying any administrative action or a group or class of admin-
istrative actions in respect of which the administrator concerned will
automatically furnish reasons to a person whose rights are adversely
affected by such actions, without such person having to request reasons
in terms of this section.
(b) The Minister must, within 14 days after the receipt of a request
referred to in paragraph (a) and at the cost of the relevant administrator,
publish such list, as contemplated in that paragraph.
As regards trigger rights, it should be noted that while Goodman Brothers-type

reasoning seemed to fall into disuse for a number of years, it was resurrected in Kiva v
Minister of Correctional Services215 in the context of s 5 of the PAJA itself. In dealing
with a decision not to promote the applicant, the High Court relied on both the majority
and minority approaches in Goodman Brothers and identified several rights that were
215
Note 90 above.
684
adversely affected: not merely rights to equality and just administrative action, but also
rights of access to court and fair labour practices. Without reasons, the court explained,
the applicant for promotion would not know whether to challenge the decision by way
of review or whether he had been the victim of an unfair labour practice.216
(b) Adequate reasons

The Constitution requires the provision of ‘written reasons’. The PAJA’s gloss on this
requirement is to require ‘adequate reasons in writing’, but it provides no criteria for
determining what is adequate and what is not. It is left to administrators and the courts to
determine the adequacy of a particular set of reasons on a case-by-case basis.
Nevertheless, some broad guidelines can be given at the outset. ‘[R]easons will be
adequate if they serve the purpose that the Act (and behind it, the Constitution) sought to
further by imposing a duty to provide reasons.’217 The principal purpose of requiring an
administrator to furnish reasons is to justify the administrative action that has been
taken.218 This is a different purpose to that of providing the information on which the
administrative action is based.219 The focus of reason-giving under s 5 is on
justification: on explaining to the affected individual, to a court, and ultimately to the
public why a decision was taken.220 Reasons provide someone aggrieved by a decision
with an explanation for and justification of the decision. They also assist such a person
in deciding whether to exercise rights of appeal or review.221 A statement of reasons is
adequate, therefore, when it is intelligible to the person seeking the reasons and is of
sufficient precision to give him or her a clear understanding of why the decision was
made.222
On the supply side, requiring an administrator to give reasons for a decision is also a
safeguard against unreasonable administrative action.223 Administrators are less likely
to act arbitrarily or unreasonably if they know that reasons will have to be furnished
justifying the action that has been taken. If one has to give reasons for decisions, one is
likely to give more thought to those decisions, thereby making the decision-making
process more structured and rational.
There are, of course, some potential disadvantages to a requirement to give reasons.
First, giving reasons may be costly, at least in the short run. The formulation of reasons
takes time and effort. Secondly, the giving of reasons may not always be effective in
achieving the intended purpose. Thirdly, reasons may be seen as restricting the pursuit
216
Ibid [31].
217
Currie (note 20 above) 6.2.
218
See the joint minority judgment of Mokgoro and Sachs JJ in Bel Porto (note 141 above) [159].
219
Provision of information by an administrator, whether voluntarily or as a result of a request, is the subject
of s 32 of the Constitution and the Promotion of Access to Information Act 2 of 2000. See Chapter 30 below.
220
Goodman Brothers (note 87 above) [5].
221
See Goodman Brothers (note 87 above) [10] (Schutz JA): ‘[R]easons given may tell a tenderer that his
goods did not comply with the specification. He, knowing that they did comply, would then be able to take the
matter further. Without reasons he might be without remedy.’ See further Koyabe v Minister of Home Affairs 2010
(4) SA 327 (CC) [61], where Mokgoro J noted that reasons ‘are important in seeking a meaningful review by the
Minister and in enhancing the chances of getting the immigration agent’s adverse finding overturned’.
222
Adequacy is therefore to be assessed from the point of view of the recipient of the reasons, as opposed to
the administrator or the reviewing court.
223
See Afrisun Mpumalanga (Pty) Ltd v Kunene NO 1999 (2) SA 599 (T) 630: ‘[R]easons . . . show how the
administrative body functioned when it took the decision and in particular show whether that body acted
reasonably or unreasonably, lawfully or unlawfully and/or rationally or arbitrarily.’
685
of administrative options in similar cases. Reasons cut both ways: while they increase
consistency, consistency by its very nature reduces flexibility.
Some of these problems may be lessened by the flexibility inherent in the Act’s
requirement that reasons be ‘adequate’. The reasons given in a routine and
uncomplicated case could justifiably be as routine and uncomplicated as the decision
itself. However flexible the requirement, the PAJA nevertheless insists on reason-
giving. Administrative inconvenience alone cannot justify a failure to provide reasons.
The PAJA permits departures from the requirement, but only in exceptional
circumstances.
As to the length and level of detail of reasons, the Australian Federal Court has held:
The reasons need not be lengthy unless the subject matter requires but they should be
sufficient to enable it to be determined whether the decision was made for proper purpose,
whether the decision involved an error of law, whether the decision-maker acted only on
relevant considerations and whether the decision makers left any such consideration out of
account.224
This approach to adequacy is preferred to that outlined in Moletsane v Premier of the
Free State.225 In that case, dealing with the right to reasons in the interim Constitution,
the court held that the level of detail in a statement of reasons was linked to the effect of
the administrative action in question: ‘The more drastic the action taken, the more
detailed the reasons which are advanced should be. The degree of seriousness of the
administrative act should therefore determine the particularity of the reasons
furnished.’226 On this approach the consequences or effects of the administrative action
determine the level of detail the reasons need to provide. However, there is no necessary
connection between the ‘degree of seriousness’ of a decision and the reasons required to
justify it. As Currie says, a single-line statement of reasons may be capable of
explaining a straightforward decision that has far-reaching consequences, while ‘a
decision involving complex assessments of fact and the exercise of considerable
interpretative discretion will take a great deal more explaining, no matter what its
consequences are’.227
(c) Requests
The Constitution requires the provision of reasons for administrative action that
adversely affects rights. The Promotion of Administrative Justice Act 3 of 2000 (PAJA)
places a significant limitation on this right. Strictly speaking, it does not implement a
right to reasons but rather a right to request reasons and a corresponding duty to provide
reasons upon request.
Another limitation is that s 5(1) of the PAJA grants the right to request reasons only
to a person ‘who has not been given reasons for the action’. If a person has already
224
Soldatow v Australia Council, (1991) 28 FCR 1. See also Ansett Transport Industries (Operations) Pty Ltd
v Wraith (1983) 48 ALR 500 (FC) 507, cited with approval in Minister of Environmental Affairs and Tourism v
Phambili Fisheries (Pty) Ltd [2003] 2 All SA 606 (SCA) [40]: ‘[T]the decision-maker should set out his
understanding of the relevant law, any findings of fact on which his conclusions depend (especially if those facts
have been in dispute), and the reasoning process which led him to those conclusions.’
225
Moletsane v Premier of the Free State 1996 (2) SA 95 (O).
226
Ibid 98H.
227
Currie (note 20 above) 6.11. As to whether standard-form reasons may ever qualify as ‘adequate’, see
Hoexter (note 34 above) 479–480.
686
received reasons for the action, that person has no right to make a request for further
reasons (and thus there is apparently no duty to give reasons). The purposes behind this
disqualification are twofold: to promote efficiency by avoiding the unnecessary
duplication of administrative duties and, on the other hand, to encourage the proactive
giving of reasons without the need for a request.
The term used in s 5(1), ‘reasons’, does not match exactly the term used in s 5(2) and
(3): ‘adequate reasons’. However, the qualification should be read into s 5(1). It should
not be possible for an administrator to frustrate the purposes of the reason-giving
requirement by proactively providing reasons that would have been considered
inadequate if they had been provided in response to a specific request. Nevertheless,
adequacy may vary according to the time at which the reasons are provided. At least for
the purposes of the duty to provide reasons, limited reasons provided at the same time as
a decision might conceivably be regarded as adequate as reasons that are more
comprehensive but provided later.
If reasons are given orally at the time of decision, does this disqualify a person from
subsequently making a request for written reasons? The answer should be no. The
specific statutory requirement that reasons be given in writing indicates that the duty to
provide reasons persists and is not discharged by an informal provision of reasons at any
time.
Finally, in terms of s 5(1), requests must be made within 90 days ‘after the date on
which that person became aware of the action or might reasonably have been expected
to have become aware of the action’. Section 9 of the PAJA allows for variation of the
time both for the request for reasons and for the giving of reasons, where the interests of
justice permit. This time may either be reduced or extended. Section 9(1)(a) provides
that the ‘period of 90 days referred to in section 5 may be reduced’ and s 9(1)(b)
provides that the ‘period of 90 days . . . referred to in section 5 . . . may be extended for
a fixed period’. The fixed period requirement thus applies only to extensions.
(d) A right to reasons in the absence of a request?

The Koyabe case228 concerned the giving of written reasons for a decision to declare the
applicants illegal foreigners in terms of s 8(1) of the Immigration Act 13 of 2002. Unlike
s 8(3) of that Act, s 8(1) does not specifically require reasons to be given, and the
respondents’ attitude was that they were thus under no duty to furnish reasons—even
though they had in fact furnished them in this instance. For its part, the court did not
respond in the expected fashion by referring to s 5 of the PAJA and the statutory duty to
give reasons on request. Instead, Mokgoro J held that the Constitution itself entitled the
applicants to reasons for the decision to declare them illegal foreigners, and that it would
be ‘over-formalistic and contrary to the spirit of the Constitution’ for the respondents to
argue otherwise.229 In this regard she referred to s 33(2) and also s 195 of the
Constitution, and said that the mechanism for requesting reasons in s 5 of the PAJA
‘indicates a prior entitlement to reasons in the first place’.230
This line of reasoning is unorthodox, for it seems to contradict the Constitutional
Court’s own insistence that the PAJA cannot be bypassed in favour of direct reliance on
228
Note 221 above.
229
Ibid [61].
230
Ibid [60] fn 55.
687
s 33 (except in the case of a constitutional challenge to the PAJA or other original

legislation).231 The PAJA specifies a request-driven regime for reasons, and there is no
explanation in Koyabe as to when and why it will be justifiable to bypass the statutory
regime and expect the administrator to give reasons without being requested to do so. A
possible answer to this is in cases of urgency, for under s 8(1) the applicants had only
three days in which to pursue their internal remedy of a Ministerial review. However,
the court in Koyabe did not explicitly rely on this or any other policy factor to explain its
approach.
(e) Reason-giving under the principle of legality

Until recently it was not entirely clear whether a demand for reasons could be grounded
in the principle of legality, though there was some judicial support for this
proposition.232 The Supreme Court of Appeal dispelled all doubt in the Cape Bar
Council case,233 a matter concerning non-administrative action in the form of judicial
selection. The court held that, if properly called upon to do so, the Judicial Service
Commission had to give reasons for its decisions to recommend or reject candidates for
judicial appointment.234 Giving reasons for its decisions would demonstrate that the
Commission had acted rationally, in accordance with the principle of legality, while not
requiring it to give reasons would effectively give the Commission immunity from a
challenge based on rationality.235
29.8 THE DEVELOPMENT OF THE PRINCIPLE OF LEGALITY AND ITS IMPLICATIONS

As observed throughout this chapter, exercises of public power that do not qualify as
administrative action may still be reviewed in terms of the principle of legality. In the
Fedsure case in 1998, where the principle was first identified, the Constitutional Court
explained that the principle of legality is an aspect of the rule of law236 (a value on
which the democratic state is explicitly founded in terms of s 1(c) of the 1996
Constitution). Significantly, the court also characterised the principle of legality as the
more general constitutional counterpart of the right to just administrative action.237
In Fedsure the principle was found to imply that those who exercise public power
must act within their powers, or lawfully.238 Since then the content of the principle has
expanded rapidly, and today its requirements are remarkably similar to those of s 33 and
the PAJA. The SARFU case established that those who exercise public power must also
act in good faith and without misconstruing their powers.239 Even mistake of fact, a very
231
232
In an obiter dictum in Wessels (note 90 above) 141I–J, a full bench agreed that the principle of legality may
require reasons to be given for exercises of public power.
233
Note 124 above.
234
Ibid [21]–[22], [43]–[51].
235
Ibid [44].
236
Note 30 above [56].
237
Ibid [59].
238
Ibid [58].
239
Note 50 above [148]. While the court did not make it entirely clear that these requirements flow from the
principle of legality, the second requirement was explicitly regarded as emanating from the principle of legality
in Masetlha (note 118 above) [81].
688
far-reaching ground of review that does not appear explicitly in the PAJA, has been held
to be part of the principle of legality.240
The next major step was taken in the Pharmaceutical Manufacturers case, where the
Constitutional Court held that the principle of legality also requires decisions involving
public power to be rational: more specifically, they must be rationally related to the
purpose for which the power was given.241 This minimum requirement of rationality
may not be quite as rigorous as the corresponding ground of review in the PAJA,
s 6(2)(f)(ii), and it does not amount to a requirement of reasonableness (which, as we
have seen, includes proportionality). Nevertheless, the holding in Pharmaceutical
Manufacturers has proved to be crucial to further important developments. In the
circumstances of the Albutt case the Constitutional Court held that procedural fairness
was required as a matter of rationality, ie that it would be irrational to take the decision
in question without hearing both sides.242 This established that the principle of legality
may demand procedural fairness in an appropriate case. More recently, the Supreme
Court of Appeal held that the Judicial Service Commission had to give reasons for
non-administrative action if properly called upon to do so, particularly since its conduct
would otherwise be effectively immune to a challenge based on rationality.243
Today, then, the principle of legality boasts much of the same content as s 33 and the
PAJA. As regards rationality and reasonableness, s 33 and the PAJA are more
demanding than the principle of legality; but there is no advantage in relying on the
PAJA when it comes to the concept of lawfulness. In recent years this has led to
increasing avoidance of the statute, seemingly in conflict with the doctrine of
subsidiarity. And now that the principle has been shown to be capable of demanding
procedural fairness and reason-giving, there is still less reason for litigants to proceed
under the PAJA. Indeed, there are definite procedural advantages to using the principle
of legality instead, such as a more lenient regime governing the exhaustion of internal
remedies and the time limit for review applications. In both of these areas s 7 of the
PAJA is considerably more stringent than the common law.244
Remarkably, deliberate avoidance of the PAJA was encouraged by the Constitutional
Court in the Albutt case, and the High Court was criticised for having decided the matter
using the PAJA.245 The rationale for this unusual approach seemed to be twofold. First,
Ngcobo CJ explained that relying on the principle of legality would allow the court to
avoid many ‘difficult questions’ that would be likely to arise in the administrative action
inquiry in this instance; and secondly, he reasoned that the context-specific features of
the case clearly called for procedural fairness.246 This meant that there was no need to
consider the applicability of the PAJA: that was merely an ancillary issue that the court
did not need to reach.247
240
Pepcor (note 134 above) [47].
241
Note 15 above [90].
242
Note 206 above [69], [72]. The reasoning in the unanimous judgment of Ngcobo CJ was presaged by his
dissenting judgment in Masetlha (note 118 above) [184]–[189].
243
Cape Bar Council (note 124 above) [44].
244
See further Hoexter (note 34 above) 534–543 and 593.
245
Note 206 above [81]–[82].
246
Ibid [79]–[83].
247
This approach was followed in Southern African Litigation Centre v National Director of Public
Prosecutions 2012 (10) BCLR 1089 (GNP) [18].
689
This approach has its attractions, for it neatly sidesteps the complicated
administrative action inquiry and gives the court freedom to construct the law as it sees
fit, untrammelled by detailed legislation or years of accumulated case law. Conversely,
however, it brings uncertainty and entails the subversion of established constitutional
principles.248 It subverts the doctrine of subsidiarity because it contemplates the use of a
more general and abstract constitutional principle in preference to a specific piece of
legislation—and constitutionally mandated legislation at that. Reliance on this approach
is also subversive of the PAJA, which would soon become redundant if every case could
be decided on its own unique facts using the principle of legality or the rule of law. After
all, it is one thing to use the principle of legality as a safety-net for non-administrative
action,249 but quite another to use it where an exercise of public power may still qualify
as administrative action, and has not been shown not to qualify. Most importantly, it is
subversive of s 33 and its mandate to enact national legislation to give effect to the
administrative-justice rights.
248
See further Hoexter (note 34 above) 131–137.
249
As to this safety-net function, see New Clicks (note 31 above) [97].
690
Chapter Thirty
Access to Information
30.1 The origins of the access to information right . . . . . . . . . . . . . . . . . . . . . . . . 692
30.2 Section 32 and the requirement to enact enabling legislation . . . . . . . . . 693
30.3 The Promotion of Access to Information Act (PAIA) . . . . . . . . . . . . . . . . 694
30.4 The relationship between s 32 and the Promotion of Access to
Information Act (PAIA). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 695
30.5 Interpretation of the Promotion of Access to Information Act
(PAIA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 696
(a) Purposive interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 696
(b) Purposes of the Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 697
(i) ‘Give effect to’ the right of access to information . . . . . . . . . . . 698
(ii) Promotion of good government . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 698
(iii) Protection of privacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 699
(iv) Access to information in private hands. . . . . . . . . . . . . . . . . . . . . . 700
(aa) Justifying the right of access to privately held
information. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 700
(bb) Interpreting ‘required for the exercise or protection of
any rights’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702
(v) Limitation of the constitutional right by the Promotion of
Access to Information Act (PAIA) . . . . . . . . . . . . . . . . . . . . . . . . . 705
(vi) General principles of interpretation of the Promotion of
Access to Information Act (PAIA) . . . . . . . . . . . . . . . . . . . . . . . . . . 708
(aa) Access to information is the normal course . . . . . . . . . . . . 708
(bb) Withholding of information is exceptional . . . . . . . . . . . . . 708
(cc) The burden of persuasion rests on the party resisting
disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 709
Access to information
32. (1) Everyone has the right of access to—
(a) any information held by the state; and
(b) any information that is held by another person and that is required
for the exercise or protection of any rights.
(2) National legislation must be enacted to give effect to this right,
and may provide for reasonable measures to alleviate the administra-
tive and financial burden on the state.
691
30.1 THE ORIGINS OF THE ACCESS TO INFORMATION RIGHT

Claims of a right to freedom of information are usually based on the idea that people are
entitled to request access to information in the possession of the state that has an impact
on them. This includes information that is specifically about the requester and, more
generally, the information the state uses to make decisions affecting the requester.1 At
this level, freedom of information is closely connected to the freedom of expression
(including the freedom to receive information or ideas)2 and the right to privacy. The
second level on which freedom of information operates is political. In an authoritarian
society, power is exercised arbitrarily, without reason or explanation. In an open and
democratic society, by contrast, the government should be accountable for its actions
and decisions, which should be informed by rational considerations that are explicable
to those affected by them: democracy is government by explanation. Accountable
government is impossible if the government has a monopoly over the information that
informs its actions and decisions. When government refuses to speak its mind candidly
or intelligibly or at all, freedom of information is the interest that citizens have in being
able to find out what their government is up to. It is the claim that they should have
access to its records, to its meetings, to the occasions where policy is formulated and
where decisions are taken about the use of public power. Public access to information is
fundamental to encouraging transparency and accountability in the way government and
public authorities operate.3 It is also an important weapon in the fight against corruption.
At both levels, freedom of information combats governmental arbitrariness and
contributes to the ideal of an open and democratic society, in which power is exercised
rationally and with due deliberation.
The entrenchment of a right of access to official information in the interim
Constitution, like much else in South Africa’s constitutional revolution, was motivated
by a desire not to repeat the mistakes of the past. The apartheid state’s assiduous
surveillance of its opponents and its obsession with official secrecy has been well
documented.4 A characteristic of authoritarian states is their desire to control
information and their obsession with secrecy. The apartheid state, both authoritarian and
singularly unrepresentative of the people it ruled, was no different.5 Anxious to ensure
1
The immediate precedent of the right in the interim Constitution is to be found in the constitutions of a
number of post-communist states, which typically restrict the collection of personal information about citizens
(the archetype of which is the secret police file on an individual), combining this with a right of access to
information in state hands. A representative example is art 24 of the 1993 Russian Constitution: ‘(1) It is
forbidden to gather, store, use and disseminate information on the private life of any person without his/her
consent. (2) The bodies of state authority and the bodies of local self-government and the officials thereof must
provide to each citizen access to any documents and materials directly affecting his/her rights and liberties unless
otherwise stipulated under the law.’
2
President of the Republic of South Africa v M&G Media 2012 (2) SA 50 (CC) [10].
3
Brümmer v Minister for Social Development 2009 (6) SA 323 (CC) [62]. These values also inform the way in
which requests for access to information should be dealt with by public bodies. Requesters should not be ignored
and obstructed. See Dlusha v King Sabata Dalindyebo Municipality 2012 (4) SA 407 (ECM) [21].
4
The extent of the legal restrictions on information and free expression in the apartheid era is charted in
Kelsey Stuart The Newspaperman’s Guide to the Law (1977). See also A Mathews The Darker Reaches of
Government: Access to Information about Public Administration in Three Societies (1978) and C Merrett A
Culture of Censorship: Secrecy and Intellectual Repression in South Africa (1994).
5
See Truth & Reconciliation Commission of South Africa Report (Cape Town, 1998) vol 2, ch 2, [10]–[19].
Commenting generally, the Truth Commission noted that, while ‘all governments are, to a greater or lesser
extent, uncomfortable with the notion of transparency, preferring to operate beyond the glare of public scrutiny’,
in apartheid South Africa ‘government secrecy was a way of life’. Report vol 1, ch 8 [24].
692
Access to Information 30.1–30.2
that the ‘almost claustrophobic culture of secrecy’6 that had developed in governmental
institutions would not be allowed to undermine the goals of political transformation and
democracy, the negotiators of the interim Constitution placed two measures in the
document. The first was a right in the Bill of Rights: s 23 of the interim Constitution
provided as follows:
Access to information
23. Every person shall have the right of access to all information held
by the state or any of its organs at any level of government in so far as
such information is required for the exercise or protection of any of his
or her rights.
The reversal of past practice brought about by this provision was dramatic. Access to
information in the hands of the state was now a right rather than a privilege. The
entrenchment of the right in the Bill of Rights meant that legislation restricting access to
official information was a limitation of the right and would be unconstitutional and
invalid unless justifiable in terms of the limitation clause in the Constitution.7
The second was in s 32 of the Constitution.
30.2 SECTION 32 AND THE REQUIREMENT TO ENACT ENABLING LEGISLATION

In addition to the constitutional right, the drafters of the interim Constitution ensured
that there would be similar guarantees of freedom of information in the ‘final’
Constitution by means of Constitutional Principle IX (CP IX) which required the
Constitution to make provision for ‘freedom of information so that there can be open
and accountable administration at all levels of government’.
Enacted in compliance with CP IX, the access to information right in the 1996
Constitution greatly expanded the scope of the equivalent right in the interim
Constitution. It also required the enactment of supplementary legislation to ‘give effect
to’ the right. In relation to information held by the state, the 1996 right eliminates the
proviso contained in s 23 of the interim Constitution that the information requested must
be ‘required for the exercise or protection’ of the rights of the requester. Moreover,
s 32(1)(b) expands the reach of the right of access to information to information held by
private persons to the extent required for the exercise or protection of rights. However,
the constitutional provision in the 1996 Constitution was to be supplemented by national
legislation before it came into operation. The rights in s 32(1) were suspended for a
period of three years. During the period of suspension, in terms of item 23 of Schedule 6
of the Constitution, a placeholder provision substantially similar to s 23 of the interim
Constitution continued to apply.
6
Ibid vol 1, ch 8 [26].
7
For a survey of the case law on s 23 and item 23 of Schedule 6 of the 1996 Constitution, see ch 29 of the third
edition of this book (2000). That case law was principally concerned with interpreting the threshold restriction
‘required for the exercise or protection of . . . [the requester’s] rights’. It is therefore of limited utility in
interpreting s 32 of the 1996 Constitution and the Promotion of Access to Information Act 2 of 2000 (PAIA)
because this threshold has been removed for public-body information while access to private-body information is
governed by different principles. See the discussion below at note 12.
693
30.3 THE PROMOTION OF ACCESS TO INFORMATION ACT (PAIA)

The 1996 Constitution required the enactment of national legislation giving effect to the
right of access to information within a period of three years after commencement of the
1996 Constitution (ie by 3 February 2000). The process of drafting the legislation began
in 1994, with the appointment by Deputy-President Mbeki of a task team on open
democracy, made up of legal academics and politicians.8 The team’s efforts resulted in a
draft Open Democracy Bill which was presented to the Cabinet in 1996. After
considering the draft Bill over a period of more than a year, the Cabinet introduced a
modified version of the Open Democracy Bill into Parliament as Bill 67 of 1998.
The Open Democracy Bill was introduced in Parliament in 1998 and was finally
passed in 2000. Substantial changes were made to the Bill during the parliamentary
process, principally by the Ad Hoc Joint Committee on the Open Democracy Bill. The
chapter of the Bill dealing with the protection of whistle-blowers was removed, with the
intention of enacting it subsequently as a separate piece of legislation.9 The same went
for privacy and data-protection provisions included in the Open Democracy Bill.10
There was also considerable elaboration of the Bill’s provisions dealing with the right of
access to information in private hands.
The Bill was passed by Parliament in January 2000 and assented to by the President
on 2 February 2000, under the name of the Promotion of Access to Information Act 2 of
2000 (PAIA). The Act (with the exception of ss 10, 14, 15 and 51) came into operation
on 9 March 2001. The remaining four sections (dealing with the obligations of public
and private bodies to publish indexes of records in their possession) came into effect on
15 February 2002.
Since the enactment of the PAIA, South Africa has had comprehensive access to
information legislation. The Act gives legislative effect to s 32 of the Constitution,
elaborating on the constitutional right, limiting it and providing mechanisms for its
protection and enforcement. It does so principally by providing a procedure for
members of the public to request access to information held in recorded form by public
and private bodies and by placing obligations on the body that holds the record to
disclose it to the requester, unless the information in the record is covered by one or
more of a list of grounds for refusal of the request.11 The Act provides procedures and
8
The drafting history of the Open Democracy Bill up to its introduction in Parliament as Bill 67 of 1998 is
outlined in Currie & Klaaren PAIA Commentary [1.7]–[1.9].
9
This resulted in the Protected Disclosures Act 26 of 2000. The Act is, however, a significant reduction of the
intended scope of the whistle-blowers’ chapter of the Open Democracy Bill. In essence, the Bill aimed at
protecting people disclosing evidence of maladministration, illegality or corruption by granting them immunity
from civil or criminal liability or employment-related penalties. The Protected Disclosures Act is concerned only
with the employment relationship. The Act prohibits employers from subjecting whistle-blowing employees to
‘occupational detriment’ (any adverse change in their conditions of employment). The South African Law
Reform Commission has recommended modifications to the scope of the Act, but has not recommended
extending it beyond the employment context: Report on Protected Disclosures (SALRC, November 2007).
10
Parliament recommended that, because of its overlap with the right to privacy, this aspect of access to
information should be dealt with in separate and comprehensive legislation. After a lengthy investigation, the
South African Law Reform Commission recommended the enactment of legislation modelled on the EU Data
Protection Directive. See Report on Privacy and Data Protection (August 2009). At the time of writing, the
resultant Protection of Personal Information Bill 9 of 2009 had been passed by the National Assembly and was
under consideration by the NCOP. See, further, Chapter 14 above.
11
The grounds are in ch 4 of Part 2 (public bodies) and ch 4 of Part 3 (private bodies) of the Act.
694
Access to Information 30.3–30.4
criteria for the resolution of disputes over refusals of access to information.12 Although
the Act encourages the ‘automatic’ (ie own-initiative) provision of information by
public and private bodies, it does not require this; it is principally concerned with
requests for records and with the resolution of disputes about requests. It is, moreover,
not archival legislation; it does not require public or private bodies to keep records, but
simply provides a mechanism for requesting those records that do exist.
The right of access to information therefore has a statutory basis and the role of the
constitutional right is considerably reduced compared to its predecessor in the interim
Constitution. A description of the specific provisions of the PAIA and the jurisprudence
interpreting and applying it is beyond the scope of this book. In what follows, the
application of s 32 of the Constitution to the interpretation of the PAIA will be
considered in addition to the few remaining instances in which the constitutional right
may be directly invoked in litigation.
30.4 THE RELATIONSHIP BETWEEN S 32 AND THE PROMOTION OF ACCESS TO

INFORMATION ACT (PAIA)
The long title, Preamble and s 9 of the PAIA make it clear that the Act is intended to
‘give effect’ to the constitutional right of access to information in s 32 of the
Constitution and that it is enacted in compliance with s 32(2).13
As is the case with the similarly worded s 33 (the right to just administrative action),
there remains, after the PAIA has commenced, a free-standing constitutional right of
access to information.14 This right may be directly relied upon only in the exceptional
cases where a provision of the PAIA, other legislation15 or conduct that is beyond the
reach of the PAIA is challenged as an infringement of s 32. This is in accordance with
the principle of subsidiarity which dictates that remedies should be found in common
law or legislation (interpreted or developed, as far as possible, to comply with the
Constitution) before resorting to direct constitutional remedies.16 It complies with the
related principle that norms of greater specificity should be relied on before resorting to
norms of greater abstraction.17 Most compellingly, however, deference must be given to
the constitutional authority bestowed on Parliament by s 32(2) to give effect to the
constitutional right of access to information. This means that the Act must be treated as
the principal legal instrument defining and delineating the scope and content of the right
of access to information, establishing the mechanisms and procedures for its
enforcement and limiting the right where necessary. Since the enactment of the PAIA,
12
In the case of public bodies, the procedures are an internal appeal followed by an application to court. In the
case of private bodies there is no internal appeal. The application to court has been held to entail ‘a de novo
reconsideration of the merits’ by the court. It is not a review of the refusal by an information officer or other
official on internal appeal. M&G Media (note 2 above) [14]. The Protection of Personal Information Bill (see note
10 above) will provide an intermediate procedure for the resolution of access to information disputes: a
complaint to the independent Information Regulator.
13
M&G Media (note 2 above) [9].
14
See Chapter 29 above and Currie & Klaaren PAIA Commentary [2.12]–[2.14].
15
The scope for direct constitutional challenges to legislation is reduced by the fact that the PAIA applies to
the exclusion of all prior contrary original and delegated legislation and all contrary subsequent delegated
legislation: s 5 of the PAIA.
16
PFE International (CC) (note especially [4]). See, further, Chapter 3 above.
17
695
the constitutional right has therefore receded to the background, indirectly informing the
interpretation of the Act but rarely directly applicable.18
Since the PAIA aims to give effect to the constitutional right, s 32 can and must be
used indirectly to interpret the Act. The PAIA (and, indeed, any other legislation
touching on access to information19) must, as far as possible, be interpreted in a manner
that conforms to s 32. This means that, after commencement of the PAIA, the principal
role of the constitutional right is indirect—it will be relied on in support of a particular
interpretation of the PAIA or other legislation.
30.5 INTERPRETATION OF THE PROMOTION OF ACCESS TO INFORMATION ACT

(PAIA)
(a) Purposive interpretation
The drafting history, long title, Preamble and s 9 of the PAIA make it clear that the Act
is intended to ‘give effect’ to the constitutional right of access to information in s 32 of
the 1996 Constitution and is enacted in compliance with s 32(2). The Act is therefore
legislation with a particular constitutional status: it is legislation mandated by the
Constitution to ‘give effect to’ a constitutional right.20 This means that it has something
of a dual character. It is, at the same time, a statute (an embodiment of the legislative
will) and a legislative interpretation and supplementation of a constitutional provision (a
set of values or ideals that stand above the will of the legislature). Both the Act’s
existence and, to a degree, its content are mandated by the Constitution to give effect to
constitutional rights. The term ‘give effect to’ means something like ‘elaborate upon’,
‘make effective’ or ‘promote’.21 Because the Act gives effect to a constitutional right
and provides the mechanisms for its promotion and enforcement, it should be interpreted
in the same way as the Bill of Rights itself. The Act must therefore be interpreted
generously and purposively and with due attention to the context.22 This is confirmed by
s 2(1) of the Act:
18
Unlike the Promotion of Administrative Justice Act (PAJA), the PAIA does not set out to regulate the
constitutional right of access to information comprehensively and generally. The difference between the two Acts
is the result of the absence in the PAIA of any equivalent of the gate-keeping definition of ‘administrative action’
in s 1 of the PAJA. The PAIA makes no attempt at a comprehensive definition of ‘information held by the state’
or ‘information that is held by another person’. The PAIA applies instead only to certain ‘records’ and expressly
excludes certain information (notably, information sought in the context of pending legal proceedings—s 7 of the
Act) from its ambit. There is no concept in the PAIA to define the scope of the application of the constitutional
right of access to information as there is a parallel and comprehensive concept in the PAJA to define the scope of
s 33. The practical effect is that the PAIA leaves room for direct application of s 32 in applications for access to
information that are not covered by the Act.
19
La Lucia Sands Share Block Ltd v Barkhan 2010 (6) SA 421 (SCA) [13] (companies legislation allowing
application for court order compelling access to company register must be interpreted and applied to give effect
to s 32).
20
It shares this status with the Promotion of Administrative Justice Act 3 of 2000 (PAJA), enacted to give
effect to the rights to just administrative action in s 33 of the Constitution. On the purposive interpretation of the
PAJA see, further, para 29.2(b) in Chapter 29 above.
21
Centre for Social Accountability v Secretary of Parliament 2011(5) SA 279 (ECG) [62] (the PAIA fleshes
out and elaborates on the existing constitutional rights, and provides a structure for their operation).
22
696
Access to Information 30.5
Interpretation of Act
2. (1) When interpreting a provision of this Act, every court must pre-
fer any reasonable interpretation of the provision that is consistent with
the objects of this Act over any alternative interpretation that is incon-
sistent with those objects.
(b) Purposes of the Act

A purposive interpretation starts off from an acknowledgement that legislation cannot be
precisely drafted to anticipate every eventuality and that the issues of interpretation that
are, as a consequence, likely to arise should be resolved by reference to the broad
purposes of the legislation. The first step is therefore to identify these purposes. Once
identified, the purposes guide the interpretation of specific provisions of the Act.
The PAIA states its purposes in a ‘general introductory provision’—s 9.23
Objects of Act
9. The objects of this Act are—
(a) to give effect to the constitutional right of access to—
(i) any information held by the State; and
(ii) any information that is held by another person and that is
required for the exercise or protection of any rights;
(b) to give effect to that right—
(i) subject to justifiable limitations, including, but not limited to,
limitations aimed at the reasonable protection of privacy, com-
mercial confidentiality and effective, efficient and good gov-
ernance; and
(ii) in a manner which balances that right with any other rights,
including the rights in the Bill of Rights in Chapter 2 of the Con-
stitution;
(c) to give effect to the constitutional obligations of the State of promot-
ing a human rights culture and social justice, by including public
bodies in the definition of ‘requester’, allowing them, amongst oth-
ers, to access information from private bodies upon compliance
with the four requirements in this Act, including an additional obliga-
tion for certain public bodies in certain instances to act in the public
interest;
(d) to establish voluntary and mandatory mechanisms or procedures to
give effect to that right in a manner which enables persons to obtain
access to records of public and private bodies as swiftly, inexpen-
sively and effortlessly as reasonably possible; and
23
There is also a statement of purpose in the Act’s Preamble but it is little more than a restatement of the
constitutional obligations requiring its enactment.
697
(e) generally, to promote transparency, accountability and effective

governance of all public and private bodies by, including, but not
limited to, empowering and educating everyone—
(i) to understand their rights in terms of this Act in order to exer-
cise their rights in relation to public and private bodies;
(ii) to understand the functions and operation of public bodies; and
(iii) to effectively scrutinise, and participate in, decision-making by
public bodies that affects their rights.
The following paragraphs will focus on specific aspects of the Act’s statement of
purpose: what it means to ‘give effect to’ the Constitutional right, the ‘good
government’ rationale for access to public-sector information, the role of the right to
privacy, and the justifications for the right of access to private-sector information.
(i) ‘Give effect to’ the right of access to information

The first purpose to draw from both the Preamble and s 9 is that the Act is intended to
‘give effect’ to the constitutional right of access to information and that it is enacted in
compliance with the requirements of s 32(2) of the Constitution. Although its drafting
history puts this beyond doubt, the Preamble and s 9 confirm that the PAIA is the
‘national legislation’ contemplated by s 32(2). The term ‘give effect to’ means ‘make
effective’, ‘promote’ or ‘implement’. The Act is required by the Constitution to define
the nature and limits of the right and set out procedures for its enforcement. This
indicates that, as a starting point of analysis, the Act should, as far as possible, be read as
co-extensive with the constitutional right of access to information. Section 32 of the
Constitution provides an unqualified right of access to all and any information in state
hands and access to any information in private hands that is required for the exercise or
protection of rights. The right may be limited by law of general application to the extent
that the limitation is reasonable and justifiable in an open and democratic society based
on human dignity, equality and freedom. In addition to the general limitation clause,
s 32(2) contains a special limitation clause applicable to the information right, requiring
the enactment of national legislation to give effect to the right but also permitting such
legislation to ‘provide for reasonable measures to alleviate the administrative and
financial burden on the state’. The PAIA is therefore legislation giving effect to the
constitutional right and a law of general application limiting it in the interests of privacy,
commercial confidentiality and effective, efficient and good governance and in order to
protect other rights.
(ii) Promotion of good government

According to the Constitutional Court in the First Certification judgment the
entrenchment of an access to information right in the Constitution was ‘directed at
promoting good government’.24 It follows that the PAIA, which gives effect to this right,
is centrally concerned with good government. According to the Preamble, the Act is
intended to ‘foster a culture of transparency and accountability in public . . . bodies’.
24
Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic
of South Africa 1996 (4) SA 744 (CC) [85].
698
Section 9(b)(ii) describes one of the purposes of the limitation of the constitutional right
by the Act as being ‘the reasonable protection of . . . effective, efficient and good
governance’. ‘Generally,’ according to s 9(e), the Act aims ‘to promote transparency,
accountability and effective governance’. This is achieved, in part, by empowering
members of the public ‘to effectively scrutinise and participate in decision-making by
public bodies that affects their rights’.
Section 32 and, in turn, the PAIA, are therefore part of the broad constitutional
project of establishing a democratic system of government. As the apartheid era
graphically demonstrated, an authoritarian state exercises its power arbitrarily, without
reason or explanation. The hallmark of an open and democratic society, by contrast, is
that government must account for its use of power. The actions and decisions of
government should be informed by rational considerations that are explicable to those
affected by the decisions: as mentioned in 30.1 above, democracy is government by
explanation. Accountable government is impossible if the government has a monopoly
over the information that informs its actions and decisions. Public access to information
is therefore fundamental to encouraging transparency and accountability in the way
government and public authorities operate.
Transparency is a means towards two ends.25 It aims first to promote the
accountability of government and, secondly, to promote greater public participation in
government. Access to information legislation therefore provides a basis for the
informed discussion of government policies and actions. Transparency and, by
extension, access to information, are also important weapons in the fight against
corruption. The Act recognises that in modern democracies citizens are entitled to
participate in the governmental decision-making process and that their role is not simply
confined to the election of representatives. The Act’s concern with participatory
democracy is present in s 9(e)’s goal of ‘empowering and educating everyone . . . to
effectively . . . participate in decision-making by public bodies that affects their rights’.
(iii) Protection of privacy

Besides the good-government concerns behind access to information, there are
additional non-political dimensions to the right. An important justification for the right
is based on what has come to be known as the right to ‘personal data protection’. This is
the idea that the law should restrict the collection and dissemination of personal
information by both public and private entities, and the related idea that people are
entitled to know who is keeping personal information about them, what that information
is and that they should be able to have it corrected if it is incomplete, out of date or
misleading.26 At this level, freedom of information is connected to and overlaps with the
right to privacy. The Open Democracy Bill contained provisions aimed at controlling
the collection of personal information and procedures requiring access to and correction
of private information in public and private hands, but these provisions were not enacted
in the PAIA. Specific personal data protection legislation has been drafted and is on the
25
E Mureinik ‘Reconsidering Review: Participation and Accountability’ (1993) Acta Juridica 35.
26
A Roos ‘Privacy in the Facebook Era: A South African Legal Perspective’ (2012) 129 SALJ 375; Neethling
et al Neethling’s Law of Personality 267.
699
point of being enacted.27 This legislation will take over the PAIA’s current provisions
dealing with access to and correction of personal information pertaining to the requester.
The link between privacy and access to information is explicitly recognised in s 9(b)
of the Act, which justifies the Act’s limitation of the constitutional right as being in the
interests of ‘the reasonable protection of privacy’.28
(iv) Access to information in private hands

(aa) Justifying the right of access to privately held information
In aiming to promote open government and participatory democracy and to protect
individual privacy and other important rights and interests, much of the PAIA conforms
to the pattern set by the freedom of information regimes in other jurisdictions. However,
freedom of information laws are typically focused on the public sector. The PAIA is
therefore considerably more ambitious than most by entering the relatively uncharted
territory of private-sector information.29 The Act contains two important innovations.
First, the PAIA provides an individual right of access to information in private hands,
where that information relates to the exercise or protection of rights. Secondly, the Act
permits the state to exercise the right of access to information in private hands.30 The
implications are considerable. In effect, the Act starts from an assumption that any
information in private hands with a demonstrable and sufficient connection to the
exercise or protection of any rights legitimately belongs in the public domain. It does
this by providing a right to request such information and placing a burden on a private
entity to justify why the requested information should not be disclosed. It also allows
public bodies to exercise this right, effectively granting a wide and general power to the
state to seek information from the private sector to protect its own interests or the public
interest.
What is the purpose of the Act’s foray into the private sphere? The obvious, though
unsatisfactory answer, is that the extension is necessary to give effect to s 32(1)(b) of the
Constitution. But this simply displaces the question and does not answer it. More
precisely, what purpose does s 32(1)(b) aim to achieve by granting a right of access to
information held in the private sphere and requiring legislation to give effect to this
right? Why does the Act take matters further than the Constitution requires by
permitting the exercise of this right by public bodies?
Two of the objects listed in s 9 of the PAIA make some attempt to answer these
questions. According to s 9(e), the Act is intended to promote ‘transparency,
accountability and effective governance of all public and private bodies’. According to
27
See note 10 above on the Protection of Personal Information Bill. In the interim, s 88 of the PAIA requires
public and private bodies to take reasonable steps to establish measures for the correction of personal information
in the records that they hold. This provision will be repealed by the Protection of Personal Information Bill.
28
The Act’s principal provisions protecting the right to privacy are the personal information grounds of refusal
in s 34 and s 63.
29
Many foreign jurisdictions recognise a right to access and correct personal information that has been
collected by the private sector as a way of discouraging unfair treatment and unjustified intrusions into personal
privacy. This was the extent of the Open Democracy Bill’s provisions giving effect to the right to information in
private hands in s 32(1)(b) of the Constitution.
30
When read with the definition of ‘requester’ in s 1, s 50 permits the exercise of the statutory right of access
to information in private hands by public bodies acting in their own or in the public interest. This is a legislative
extension of the ambit of the constitutional right that is not required by s 32(1)(b) of the Constitution. The state is
bound by the constitutional right of access to information and is not a beneficiary of the right. The same goes for
public bodies through which state power is exercised. See, further para 3.3(a) in Chapter 3 above.
700
s 9(c), the purpose of allowing public bodies to exercise the right to information in
private hands is ‘to give effect to the constitutional obligations of the State of promoting
a human rights culture and social justice’. Neither explanation is entirely satisfactory.
Section 9(e) associates the private-sector aspects of the Act with its overall ‘good-
government’ rationale. But the goals of transparency, participation and accountability
stem from a concern with the legitimate exercise of public power in a democracy. It
makes some sense to associate these requirements with private bodies if they wield
public power that has been transferred to the private sector through a process of
privatisation.31 It also makes some sense if certain private institutions wield power that
can be said to be analogous in its reach and consequence to that customarily associated
with the state, or if they perform functions traditionally considered governmental in
nature.32 The good-government rationale for disclosure is often applied to private-sector
information if it has public implications. For example, opening corporate boardrooms to
public view can be justified by the public nature of the activities of some corporations
and the risks to the public that are inherent in the capital investment process. Similarly,
greater transparency can justifiably be demanded of enterprises that produce toxic
emissions or other pollutants than is usually required of the private sector in general. But
the Act’s reach far exceeds these justifications. The Act’s definition of ‘private bodies’
is extensive. Any business entity, great or small, and anyone who carries on a business,
trade or profession are covered. The duties imposed by the Act are applicable generally
to private bodies and are not conditional on the provenance of the power exercised by a
particular private body, or on the effect of its activities on the public.
The private-sector aspects of the Act are better explained by focusing elsewhere—on
the scope and structure of the constitutional right to private-sector information in
s 32(1)(b) of the Constitution. Section 32(1)(a) makes public-sector information
available on a ‘right to know’ basis, meaning that members of the public are entitled to
it, unless there are good reasons for withholding it. Information in public hands is, after
all, the public’s information and should be accessible to the public, unless disclosure
will cause harm to legitimate government interests or the rights of others. Unless one
intends to dissolve the distinction between the public and private spheres, private-sector
information must be treated differently. The Constitution makes information in private
hands available on a ‘need to know’ basis, meaning that a requester is only entitled to
such information if the request can be justified by providing reasons why the
information is required. The reasons recognised by s 32(1)(b) of the Constitution as
sufficient justification for imposing duties of transparency on the private sector are that
the information is required for the exercise or protection of any right.
The private sector, in other words, is entitled to keep its information to itself, unless
that information is needed to protect rights. The purpose of a right of access to
31
C D Feiser ‘Protecting The Public’s Right To Know: The Debate Over Privatization And Access To
Government Information Under State Law’ (2000) 27 Florida State Univ LR 825 (unless access-to-information
statutes can be extended to cover private entities, privatisation and the associated transfer of public records to
private hands will undermine the public’s right to know); A Roberts ‘Structural Pluralism and the Right to
Information’ (2001) 51 Univ of Toronto LJ 243 (many public functions now are undertaken by entities that do not
conform to standards of transparency imposed on core government and are not subject to freedom of information
laws).
32
Such entities are in any event likely to be considered ‘public bodies’ in terms of the PAIA. See Calibre
Clinical Consultants (Pty) Ltd v National Bargaining Council for the Road Freight Industry 2010 (5) SA 457
(SCA) [37]–[38]; Mittalsteel SA Ltd v Hlatshwayo 2007 (1) SA 66 (SCA) [21].
701
private-sector information is therefore to protect rights and to promote, as s 9 of the Act

puts it, a ‘human rights culture and social justice’. The PAIA is not intended to be a
full-scale invasion of the private sphere by requiring the same standards of transparency
of all private bodies as are required of public bodies. Instead the structure of the right
obliges the requester to show a risk of harm to a right if there is no transparency. This is
not a particularly radical proposition. For example, s 12 of the Constitution recognises a
fundamental right to security of the person. A threat to this right justifies a right of
access to information about potential threats to personal safety, such as information held
by medical professionals about a serious danger of violence by one person against
another, or information about the release of toxic pollutants by factories, or information
to consumers about hazards posed by defective products. Similarly, the right to privacy
justifies demands for access to personal information collected by private entities so that
its accuracy can be ensured and its dissemination controlled.33
Read in this way, the Constitution and the PAIA simply give general recognition to a
principle that has received piecemeal recognition in other jurisdictions.34 Its objects
provisions notwithstanding, the PAIA does not seek to impose government’s duties of
transparency and accountability on the private sector. Rather, the private-sector aspects
of the Act aim to protect rights by requiring transparency when information held by the
private sector can cause harm to rights or when disclosure can help to prevent harm from
being caused. This interpretation puts considerable emphasis on the qualifying
conditions for the availability of the right to information in private hands: the
information must be ‘required for the exercise or protection of any rights’.
(bb) Interpreting ‘required for the exercise or protection of any rights’

The predecessor of s 32(1)(b)—s 23 of the interim Constitution—was a right of ‘every
person . . . of access to . . . information . . . in so far as such information is required for
the exercise or protection of any of his or her rights’. There are obvious similarities
between this formulation and that used in s 32(1)(b), and the jurisprudence interpreting
this part of s 23 is relevant to the interpretation of the constitutional right and the
corresponding provisions of the PAIA. However, there is also an obvious and highly
significant difference between the two formulations. Section 32 of the Constitution
replaces ‘his or her rights’ with ‘any rights’, with the implication that the right is
applicable to requests for information related to the protection or exercise of rights that
are not necessarily those of the requester. Besides these differences of formulation, there
are also important differences of application and purpose behind the two provisions.
Section 23 was a right of access to information in state hands only, premised on the
democratic principles of accountability and transparency. Section 32(1)(b) is a right of
33
See the discussion of the Protection of Personal Information Bill in note 10 above. The Bill is intended to
regulate the processing of personal information by public and private bodies and to provide a right to request
access to such information, to challenge its accuracy and to request its correction or deletion.
34
C Sunstein ‘Informational Regulation and Informational Standing: Akins and Beyond’ (1999) 147 Univ of
Pennsylvania LR 613, 614 (discussing legislation requiring private industry to disclose information about, inter
alia, toxic releases, the contents of food and drink and workplace injuries); Roberts (note 31 above) (discussing
US, Canadian and European laws obliging private employers to provide employees with information about
hazardous materials used in the workplace; obliging manufacturers to inform consumers about hazards posed by
defective products; requiring businesses to disclose information about plans for plant closings or mass layoffs;
arguments in favour of allowing access to information held by private providers of health services, based on a
concern for the physical integrity of patients.)
702
access to information in private hands, justified by the principle that occasional

invasions of the private sphere are justified in order to protect rights.
The PAIA gives effect to s 32(1)(b) principally by creating a right to request records
held by private bodies to the extent that the record is required for the exercise and
protection of a right, and by placing a concomitant duty on private bodies to disclose the
record unless refusal of the request is permitted or mandated by one or more of a list of
grounds.
Right of access to records of private bodies

50. (1) A requester must be given access to any record of a private
body if—
(a) that record is required for the exercise or protection of any rights;
(b) that person complies with the procedural requirements in this Act
relating to a request for access to that record; and
(c) access to that record is not refused in terms of any ground for
refusal contemplated in Chapter 4 of this Part.
...
While information in public hands is accessible without the requester having to

demonstrate a need to know, information in private hands is available only to the extent
that the requested record is ‘required for the exercise or protection of any rights’. The
request must therefore be justified.
The approach of the courts is to analyse the provision as involving two threshold
requirements. An applicant must show that the requested information is ‘required’
and, secondly, that the information is required ‘for the exercise or protection of any
rights’.35
‘Required’
There are several ways to interpret this word.36 The most restrictive interpretation is that
the information requested must be shown to be necessary or essential for the exercise or
protection of a right—without access to the record requested the right cannot be
exercised or protected. At the other end of the continuum, the word can be read as
synonymous with ‘relevant’. This would require a showing of some connection between
the requested information and the exercise or protection of the right that is implicated.
A third interpretation appears to have been settled upon in the interpretation of s 50.
Required means ‘reasonably required’.37 This is a flexible standard, compliance with
which must be assessed on a case-by-case basis.38
The following factors can be taken into account in this assessment:
35
See Tobacco Institute of Southern Africa v Minister of Health 1998 (4) SA 745 (C).
36
Shabalala v Attorney-General, Transvaal 1995 (1) SA 608 (T), 624C–D: ‘The word required is capable of a
number of meanings ranging from desired through necessary to indispensable . . . To my mind, required in s 23
conveys an element of need: the information does not have to be essential, but it certainly has to be more than
‘‘useful’’ . . . or ‘‘relevant’’ . . . or simply ‘‘desired’’.’
37
Unitas Hospital v Van Wyk 2006 (4) SA 436 (SCA) [6].
38
Ibid.
703
• The purpose of the ‘need to know’ condition on the right of access to information in
private hands must be kept in mind when interpreting and applying the provision.
Neither the Act nor the constitutional right to which it gives effect intends to
dissolve the boundaries between the public and private sector by imposing a general
duty of transparency on the latter. Rather, the right of access to information in
private hands is intended to protect rights that might be harmed by secrecy. Private
bodies should not be required to consider requests for information from requesters
who are merely curious or vexatious, those who have only an ideological or abstract
interest in the information, or from adventurers who are on a fishing expedition.
• Requesters must demonstrate a ‘substantial advantage’ to be gained from access to
the information or an ‘element of need’ to have it.39 The degree of connection
between the information requested and the protection and enforcement of rights
cannot be set too high or the principal purpose of the Act—the promotion of access
to information in private hands for purposes of protecting rights—will be
frustrated.40
• The test is objective. The requester must make out a case that the records requested
are ‘required’, in an objective sense, for the exercise or protection of rights.41 It is
insufficient that the record is merely desired by the requester.
• Although the requester is required to make out a case, the constraints under which he
or she operates must be kept in mind. The point of a right of access to information is
to allow a requester to obtain information that he or she does not currently possess.
As a result, in most cases, the requester will not have had sight of the requested
record, will not know its contents or even whether it exists. Obviously, in such
circumstances, the requester cannot be expected to demonstrate a link between the
record and rights with any degree of detail or precision.42
• The information sought must be of assistance to the requester, and the requester
must establish this.43 The existence of alternative remedies under the common law
or legislation is a factor to be taken into account, in assessing whether access to the
information required by a party invoking the PAIA is ‘required’ for the exercise or
protection of any of that party’s rights.44
‘Rights’
The word ‘rights’ can be interpreted in three ways. It could mean rights in the Bill of
Rights. It could mean rights (private-law rights arising from contractual or delictual
obligations, or legislative rights) held by an individual against the state or an organ of
state. It could mean all legislative and private-law rights, including those held against
39
Clutchco (Pty) Ltd v Davis 2005 (3) SA 486 (SCA) [13].
40
M&G Media v 2010 FIFA World Cup Organising Committee 2011 (5) SA 163 (GSJ) [354].
41
Fortuin v Cobra Promotions CC 2010 (5) SA 288 (ECP) [27] (requester must lay a ‘cogent foundation’ for
the request).
42
M&G Media v 2010 FIFA World Cup Organising Committee (note 40 above) [353].
43
Unitas Hospital (note 37 above) [17]. See also Cape Metropolitan Council v Metro Inspection Services CC
2001 (3) SA 1013 (SCA) [28] (dealing with the interim right of access to information in state hands in item 23 of
Schedule 6 of the Constitution): ‘Information can only be required for the exercise or protection of a right if it
will be of assistance in the exercise or protection of the right. It follows that, in order to make out a case for
access to information in terms of s 32, an applicant has to state what the right is that he wishes to exercise or
protect, what the information is which is required and how that information would assist him in exercising or
protecting that right’.
44
Fortuin (note 41 above) [26]–[27], citing Clutchco (Pty) Ltd v Davis 2005 (3) SA 486 (SCA) [14] and [17].
704
private citizens.45 The first of these interpretations places the narrowest ambit on the
access right, while the third places the most generous ambit on that right.
Most of the interim Constitution decisions can be described as inclined to give a
broad and generous interpretation to the formulation. It must however be emphasised
that the interim Constitution jurisprudence was dealing with an entirely different
provision—a right of access to information in state hands to the extent required for the
exercise or protection of rights. Access to information in private hands is justified by
different criteria. Unlike the state, the private sector is not subject to a general duty of
transparency and many of the arguments justifying the generous interpretation of
‘rights’ applied in relation to the interim Constitution provision are inappropriate for
purposes of the PAIA.46
It is submitted that the purposes of the Act are best served by a narrower reading of
‘rights’ than that adopted by the interim Constitution cases. The purpose of s 50 is to
require private-sector transparency to prevent harm to fundamental rights. These are
rights in the Bill of Rights47 and those rights in the general law that can be regarded as
deriving from the rights in the Bill of Rights, such as rights in the law of delict or certain
statutory rights.48 It is doubtful, however, whether the Act should be applied to rights
created by the voluntary assumption of obligations, ie contractual rights.49
The use of the phrase ‘any rights’ means that particularity is not required—there is no
need to show that the effect on rights is particular to the applicant. A generalised
grievance is just as effective. So is a request motivated by a desire to protect the rights of
the public in general. The phrase ‘exercise or protection’ should not be read as confined
to the exercise or protection of rights by way of litigation.
One can also exercise or protect rights through informal action before administrative
bodies, in front of political forums, and through the media.50
(v) Limitation of the constitutional right by the Promotion of Access to

Information Act (PAIA)
One of the declared objects of the PAIA is to limit the constitutional right of access to
information. The limitations, according to s 9(b), are aimed at ‘the reasonable protection
of privacy, commercial confidentiality and effective, efficient and good governance . . .’.
The constitutionality of these limitations can be directly tested as infringements of s 32.
45
The courts in Van Huysteen NO v Minister of Environmental Affairs & Tourism 1996 (1) SA 283 (C) and
Balmoral Investments v Minister van Mineraal en Energiesake 1995 (9) BCLR 1104 (NC) interpreted rights as
including statutory rights against the state.
46
See, for example, Van Niekerk v Pretoria City Council 1997 (3) SA 839 (T), 846 (justifying a wide reading
of ‘rights’ by reference to the ‘open and democratic society’ purposes underlying s 23 of the interim
Constitution).
47
For example, privacy. See Makhanya v Vodacom Service Provider (Pty) Ltd 2010 (3) SA 79 (GNP)
[10]–[16] (mobile telephone subscriber harassed by unwanted calls entitled to request service provider for the
number from which the calls were being made). Another example is the rights to freedom of expression and
freedom of the media. See M&G Media v 2010 FIFA World Cup Organising Committee (note 40 above) [337].
48
See Davis (note 39 above) (‘rights’ to financial records of a company include proprietary rights of a
shareholder in terms of companies legislation and rights to prosecute a case against the company in terms of
companies legislation and common law).
49
But see Claase v Information Offıcer, South African Airways (Pty) Ltd 2007 (5) SA 469 (SCA) [7] (reliance
on contractual rights governing the terms of retirement of airline’s pilots).
50
See Qozeleni v Minister of Law and Order 1994 (3) SA 625 (E), 642; (the application of s 23IC extends to
non-judicial remedies aimed at the exercise or protection of rights); M&G Media v 2010 FIFA World Cup
Organising Committee (note 40 above) [328], [360].
705
Two types of possible challenges to the constitutionality of the Act can be identified:
allegations that the Act is under-inclusive and allegations that it is over-restrictive.
Under-inclusiveness challenges are essentially to the effect that the Act does not go far
enough in its coverage. Section 32(1)(a) of the Constitution is an unqualified right of
access to information in the hands of the state. But the Act exempts certain state bodies
from its provisions. Records of courts, of members of Parliament and the Cabinet are not
covered by the Act.51 The effect of these exemptions is not that members of the public
are entirely deprived of access to these records.52 Rather, because the exempt classes of
records are not included in the Act, members of the public are unable to use the Act’s
package of request procedures and remedies to obtain access to them. Where the failure
to include the exempt classes of records in the Act deprives someone of a benefit that
inclusion would have entailed, the Act is arguably under-inclusive.53
In terms of s 7 of the PAIA, records in both public and private hands that are
requested for purposes of pending litigation are exempt from the application of the Act.
This provision has been interpreted as intended to
prevent PAIA from having any impact on the law relating to discovery or compulsion of
evidence in civil and criminal proceedings. In the event that the production of or access to
the record is provided for in any other law then the exemption takes effect. The legislature
has framed s 7 in terms intended to convey that requests for access to records, made for the
purpose of litigation, and after litigation has commenced, should be regulated by the rules of
court governing such access in the course of litigation.54
It follows that, in accordance with the principle stated above, that s 7 should not be
considered an instance of under-inclusiveness: it is intended to operate only where the
rules relating to discovery and the compulsion of evidence in civil and criminal
proceedings regulate access to a record. Those rules must be applied instead of the PAIA
to resolve disputes over access but must be interpreted to promote and not restrict access
to information.55 To the extent that a rule of discovery or evidence unduly restricts the
right of access to information it may be directly challenged as unconstitutional.
Over-restrictiveness challenges are likely to be encountered more frequently.
Essentially, they are allegations that the PAIA’s provisions and procedures permitting
and restricting access to information are too onerous or restrictive. The constitutional
right is an unqualified right of access to ‘information’. But the Act provides instead
something far more limited: a right of access to records on request in the prescribed
form and on payment of a fee. One such limitation, the Act’s 30-day restriction on
the time periods within which applications to court appealing against a refusal of an
access request must be brought, has been declared unconstitutional and substituted
51
Section 12 of the PAIA.
52
Access to the exempted classes of information is instead governed directly by s 32. If regulated by other law,
that law is subject to s 32; it must be interpreted to promote access to information and may be challenged if it
restricts it unjustifiably.
53
The failure to include in the PAIA the open meetings provisions of the Open Democracy Bill, which
required certain government meetings to be open to the public, might also be said to be an instance of
under-inclusiveness.
54
Industrial Development Corporation of South Africa Ltd v PFE International Inc (BVI) 2012 (2) SA 269
(SCA) [9]; confirmed on appeal in PFE International (CC) (note 16 above) [21].
55
PFE International (CC) (note 16 above) [25]–[27]. On interpretation in conformity with the Bill of Rights
see, further, Chapter 6 above.
706
with a period of 180 days.56 Another limitation that is susceptible to challenge is the
mandatory requirement that a requester must exhaust the internal appeal process
before approaching a court.57 The Act also requires or permits the refusal of requests
for records on any one of an extensive list of grounds, any one of which could be
challenged as an unjustifiable limitation of the constitutional right.
Like any other right in the Bill of Rights, s 32 of the Constitution is subject to the
general limitation clause in s 36, which permits limitation of rights by law of general
application to the extent reasonable and justifiable in an open and democratic society
based on human dignity, equality and freedom. But, in addition to the general
limitation clause, s 32 is subject to a special limitation clause: s 32(2), which requires
the enactment of national legislation to give effect to the right but also permits this
legislation to ‘provide for reasonable measures to alleviate the administrative and
financial burden on the state’.58 The purpose of a special limitation clause is to
introduce criteria for the limitation of a particular right additional to those contained
in the general limitation clause, effectively making it easier to limit that right.59
While s 32(2) does make it easier for the PAIA to limit the information right it
certainly does not give it a free hand in doing so. First, the special limitation is
applicable only to provisions that have the effect of alleviating the administrative or
financial burden on the state. Secondly, any such provision must be a ‘reasonable
measure’. As for the first qualification, it is clear that a large number of the Act’s
limitations cannot be accommodated under the special limitation clause. For
example, most of the grounds of refusal that are applicable to records of public
bodies are intended to protect rights and important interests and are not intended to
alleviate the state’s administrative and financial burden.60 This means that the
grounds will have to be tested against the general limitation clause, and will survive
only if they can be considered a rational and proportional limitation of the access
right in pursuit of purposes considered legitimate in an open and democratic society
based on equality, dignity and freedom.61 It must also be noted that the special
56
Brümmer v Minister for Social Development 2009 (6) SA 323 (CC) (30-day limit in s 78(2) of the PAIA an
unconstitutional infringement of the rights of access to court and access to information). Parliament was given
18 months to correct the defect but did not do so. As a consequence, by operation of the court’s order, the periods
in s 78(2) and in s 77(5)(c)(i) and (ii) must be read to provide a 180-day limit. Consequential amendments to the
PAIA in terms of the Protection of Personal Information Bill (see note 10 above) will amend the Act to provide a
180-day limit for the institution of complaints to the Information Regulator and applications to court.
57
See Sumbana v Head of Department of Public Works, Limpopo Province 2009 (3) SA 64 (V) (requirement is
mandatory, and there is no possibility for a court to condone non-compliance in the interests of justice).
58
On the distinction between special limitations and demarcations of a right and the significance of the
distinction, see Chapter 7 above. Whereas s 32(2) is a special limitation of the access right (permitting the
legislature to limit the right to a reasonable extent necessary to alleviate the administrative and financial burden
on the state), s 32(1)(b) demarcates the scope of the right of access to information in private hands by providing
that it is only available to the extent that the information is ‘required for the exercise or protection of any rights’.
59
Under the general limitation clause, financial and administrative considerations would not be regarded as
particularly compelling reasons justifying the limitation of a fundamental right.
60
Grounds which could arguably be accommodated under the special limitation are the operations of public
bodies ground in s 44 and the frivolous requests and unreasonable diversion of resources ground in s 45.
61
An obvious target for such a challenge is the ‘public-interest override’ in s 46 and s 70 of the Act, which was
cut down during the parliamentary process to an overly narrow and restricted sphere of operation. See Currie &
Klaaren PAIA Commentary [7.10]–[7.13]; Centre for Social Accountability (note 21 above) [90]. The applicants
brought such a challenge in the alternative in De Lange v Eskom Holdings Ltd 2012 (1) SA 280 (GSJ), a
challenge described by the court at [156] as ‘strange’. With respect, the override is crucial to the balance that the
Act must strike between the right of access to information and competing considerations. Simply put, as it is
currently phrased the override does not provide for access to information when the public interest outweighs the
707
limitation clause only permits limitations benefiting the state. It is therefore not
possible to rely on the provision to justify any of the Act’s limitations benefiting
private bodies.
Which of the Act’s limitations can be accommodated under the special limitation
clause in s 32(2)? Clearly, the fee provisions of the Act applicable to public bodies
are measures designed to minimise the financial burden of compliance with the right
of access to information.62 This means that the limitation that the fee requirements
place on the constitutional right of access to state information is permissible,
provided that it is a ‘reasonable’ measure. Reasonableness in this context means that
the limitation should be tailored to the purpose of alleviating the financial and
administrative burden on the state. In other words, the fee provisions should aim at
defraying the actual financial and administrative costs of processing information
requests and providing access to records and should not be a deterrent to would-be
requesters.
(vi) General principles of interpretation of the Promotion of Access to

Information Act (PAIA)
Some concrete principles of interpretation can be distilled from this discussion of the
purposive interpretation of the Act in the light of the constitutional right that underlies it.
(aa) Access to information is the normal course

The PAIA is intended to give effect to the constitutional right of access to information. It
is therefore aimed at promoting access to information and not the withholding of
information. Inevitably, discussion and analysis of the Act and litigation will focus on
what may be withheld. However, the dominant objective of the Act is disclosure and not
secrecy, and it must be interpreted to promote this objective.63
(bb) Withholding of information is exceptional

The various exemptions and grounds of refusal of requests set out in the Act are
exceptions to the primary aim of the Act which is to promote the disclosure of
information. They are, moreover, limitations of the constitutional right.64 The
exemptions and grounds of refusal must therefore be read narrowly, to avoid further and
unnecessarily limiting the right.65 The withholding of information is only permitted on
the grounds explicitly set out in the Act. Access should only to be denied where it is
clearly justified. Any doubts as to whether the withholding of particular information is
justified should be resolved in favour of disclosure. The discretionary powers conferred
by the Act to disclose information covered by a ground of refusal should be exercised in
favour of disclosure.
harm to the interests protected by the grounds for refusal. It is arguably unconstitutional to that extent. The courts
should accordingly be prepared to confront the issue of its unconstitutionality in cases in which the override is
applied but does not result in the provision of access to a record.
62
The fee provisions applicable to private bodies cannot be justified as alleviating the financial burden of the
Act on the state. Instead they must be justified under the general limitation clause as balancing the access right
with the property rights of private bodies by not imposing a tax on them.
63
M&G Media (note 2 above) [9]: ‘disclosure of information is the rule and exemption from disclosure is the
exception’.
64
65
Minister for Provincial and Local Government v Unrecognised Traditional Leaders of the Limpopo
Province 2005 (1) SA 110 (SCA) [16].
708
(cc) The burden of persuasion rests on the party resisting disclosure

This principle follows from the fact that the grounds of refusal are limitations of the
constitutional right. The burden of justifying the limitation of a right (including
arguments about the interpretation of the Act) falls on the party wishing to do so and not
on the right-holder.66 There is also a practical reason for the burden: the holder of the
information has access to the contents of the record that has been requested while the
requester does not.67 The evidentiary burden must be discharged on a balance of
probabilities by providing evidence that the record in question falls within the
description of the ground of refusal that is claimed.68
Courts are empowered by the PAIA to call for additional evidence in the form of the
contested record, a power that is known in other jurisdictions as a ‘judicial peek’.69 This
power should be used sparingly and only where there is the potential for injustice as a
result of the unique constraints placed upon the parties in access to information disputes.
Injustice of this sort may arise because either the requester or the holder of information
is prevented by factors outside its control from presenting the evidence necessary to
make its case.70 It is not a substitute for the duty of a party that refuses a request for
access to information to adduce evidence to justify the refusal.71
66
This is expressly stated in s 81 of the PAIA, in relation to judicial review proceedings. In relation to
private-sector information, the threshold showing that a requested record is required for the exercise or protection
of rights must be made by the requester.
67
68
M&G Media (note 2 above) [23], [32].
69
Section 80 of the PAIA.
70
M&G Media (note 2 above) [39], [44].
71
M&G Media (note 2 above) [49]. The M&G Media decision concerns a request for access to a record held
by the state, but the principles stated would apply equally to the refusal of requests made to private bodies.
709
Chapter Thirty-one
Access to Courts*
31.1 The purpose of the right . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 711
31.2 The threshold: Disputes that can be resolved by the application of
law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 712
31.3 Access to courts and other forums . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 714
(a) Access to justice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 714
(b) The prohibition of self-help . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 717
(c) Restrictions on vexatious litigants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 721
(d) Amnesty. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 722
(e) Notice and prescription provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 722
(f) Abolition of causes of action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 727
(g) Costs orders and requirements of security for costs . . . . . . . . . . . . . . 728
(h) Limitations on appeal and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 730
(i) Reasons for judicial decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 731
(j) Res judicata and issue estoppel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 731
31.4 A court or, where appropriate, another independent and impartial
tribunal or forum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 732
(a) Meaning of ‘where appropriate’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 732
(b) Independence and impartiality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 732
(i) Judicial commissions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 735
(ii) Magistrates’ courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 736
(iii) Courts of traditional leaders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 738
(iv) Other tribunals and forums . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 739
31.5 Fair public hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 739
(a) Fairness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 739
(b) Public hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 742
Access to courts
34. Everyone has the right to have any dispute that can be resolved
by the application of law decided in a fair public hearing before a court
or, where appropriate, another independent and impartial tribunal or
forum.
* This chapter was revised for the sixth edition by Kevin Iles, Advocate, Johannesburg Bar.
710
Access to Courts 31.1
31.1 THE PURPOSE OF THE RIGHT

The right of access to courts in s 34 is essential for constitutional democracy under the
rule of law.1 Section 34 is the equivalent of s 22 of the interim Constitution, which
guaranteed the right ‘to have justiciable disputes settled by a court of law or, where
appropriate, another independent and impartial forum’.2 According to Ackermann J the
purpose of s 22 was:
to emphasise and protect generally, but also specifically for the protection of the individual,
the separation of powers, particularly the separation of the judiciary from the other arms of
the state. Section 22 achieves this by ensuring that the courts and other fora which settle
justiciable disputes are independent and impartial. It is a provision fundamental to the
upholding of the rule of law, the constitutional state, the ‘regstaatidee’, for it prevents
legislatures, at whatever level, from turning themselves by acts of legerdemain into
‘courts’. . . . By constitutionalising the requirements of independence and impartiality the
section places the nature of the courts or other adjudicating fora beyond debate . . .3.
The historical significance of the access right is that it outlaws the apartheid law practice
of ousting the courts’ jurisdiction to enquire into the legal validity of certain laws or
conduct. A fundamental principle of the rule of law is that anyone may challenge the
legality of any law or conduct.4 For this entitlement to be meaningful, alleged illegalities
must be justiciable by an entity that is separate and independent from the alleged
perpetrator of the illegality.5 Section 34 also prevents the dilution of rights by legislation
that compels disputes to be adjudicated in a tribunal programmed to reach an outcome
favourable to the state or to other powerful interests.
The rule of law seeks to promote the peaceful institutional resolution of disputes
and to prevent the violence and arbitrariness that results from people taking matters
into their own hands.6 Section 34, by insisting on the resolution of legal disputes by
fair, independent and impartial institutions, prohibits the resort to self-help.7
Section 34 guarantees three distinct rights for a person involved in a dispute that
can be resolved by law. First, it creates a right of access to a court or another
tribunal or forum. Secondly, it requires tribunals or forums other than courts to be
independent and impartial when they are involved in the resolution of legal disputes.
Thirdly, it is a ‘due process’ guarantee, requiring the legal disputes to which it
applies to be decided in a fair and public hearing.8 The threshold enquiry which must
be met to access the right is that there must be a dispute capable of resolution by
law. Once this is present the three components of s 34 (access, independence and
impartiality, and fairness) are triggered.
1
Road Accident Fund v Mdeyide 2011 (2) SA 26 (CC) [1] and [64]; De Beer NO v North-Central Local
Council and South-Central Local Council 2002 (1) SA 429 (CC) [11]; Bernstein v Bester NO 1996 (2) SA 751
(CC) [105].
2
Section 22 of the interim Constitution did not require a ‘fair public hearing’. The significance of the inclusion
of this phrase in s 34 is discussed further in para 31.5 below.
3
Bernstein (note 1 above) [105].
4
De Lange v Smuts NO 1998 (3) SA 785 (CC) [46]–[47].
5
Mdeyide (note 1 above) [1].
6
Lesapo v North West Agricultural Bank 2000 (1) SA 409 (CC) [11]–[12].
7
Ibid, Bernstein (note 1 above) [51]: ‘In all democratic societies the state has the duty to establish independent
tribunals for the resolution of civil disputes. . . . In a constitutional State that obligation is of fundamental
importance and it is clearly recognised as such in our Constitution.’
8
See Lufuno Mphaphuli & Associates (Pty) Ltd v Andrews 2009 (4) SA 529 (CC) [211] for a different
dissection of the elements of the right.
711
In Telcordia Technologies Inc v Telkom SA Ltd9 the Supreme Court of Appeal

considered the extent to which the rights in s 34 may be waived. In this case, the
parties had agreed to have their dispute resolved through arbitration. The Court held
that this was a waiver of the right to a public hearing and that the waiver was
acceptable and valid, unless contrary to some other constitutional principle or
otherwise contra bonos mores.10 The parties had further agreed that the fairness of
their hearing would be determined solely by the terms of the Arbitration Act 42 of
1965. They had agreed to waive the right of appeal and to limit the grounds upon
which the arbitration award could be reviewed.
The issue was raised before the Constitutional Court in Lufuno Mphaphuli &
Associates.11 Kroon AJ (with Jafta AJ and Nkabinde J) agreed with the Supreme
Court of Appeal’s reasoning in Telcordia that in principle it was competent to waive
the rights contained in s 34, but did not agree that the mere submission of a matter
to arbitration automatically implied a waiver of the fairness element of s 34.12
O’Regan ADCJ (with Langa CJ, Mokgoro J, Van der Westhuizen J and Yacoob J)
held that s 34 was not directly applicable to private arbitration and, accordingly,
choosing to refer a dispute to arbitration did not mean that one was waiving the
rights in s 34, but rather that the litigants had chosen not to exercise the right.13
31.2 THE THRESHOLD: DISPUTES THAT CAN BE RESOLVED BY THE APPLICATION OF

LAW
Section 34 applies only when there is a ‘dispute’ that can be resolved by ‘the application
of law’.14 Some disputes, such as disputes of a moral or religious nature,15 cannot be
resolved by the application of law and s 34 does not apply to such disputes. Some
political disputes are also not capable of resolution by the application of law.16 This is
not, however, because political questions are as a general category immune to judicial
scrutiny.17
Other disputes, although capable of resolution by the application of law, do not fall
within the ambit of s 34 because other constitutional provisions regulate the conduct of
the dispute. Section 34 does not apply, for example, to those aspects of criminal
proceedings which are regulated by s 35 of the Constitution.18 So, for example, a delay
9
Telcordia Technologies Inc v Telkom SA Ltd 2007 (3) SA 266 (SCA).
10
Ibid [48].
11
Note 8 above.
12
Lufuno Mphaphuli (note 8 above) [78]–[81] and [142].
13
Ibid [216]. On waiver of constitutional rights see, further, para 3.3(a)(iii) in Chapter 3 above.
14
However, even absent a dispute, a party with the requisite standing may in certain circumstances challenge
the constitutionality of legislation which is alleged to limit s 34. Lesapo (note 6 above) [7].
15
See Prince v President of the Law Society of the Cape of Good Hope 2002 (2) SA 794 (CC) [42] (courts
should not be concerned with questions whether, as a matter of religious doctrine, a particular practice is central
to the religion); Amod v Multilateral Motor Vehicle Accidents Fund 1999 (4) SA 1319 (SCA) [28].
16
See National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) [18].
17
See President of the Republic of South Africa v Hugo 1997 (4) SA 1 (CC) [29] quoting the Canadian
decision of Operation Dismantle Inc v The Queen (1985) 13 CRR 287.
18
Thint (Pty) Ltd v National Director of Public Prosecutions 2009 (1) SA 1 (CC) [60]–[62]; President of the
Republic of South Africa v South African Rugby Football Union 1999 (4) SA 147 (CC) [28]; S v Pennington 1997
(4) SA 1076 (CC) [46].
712
in the adjudication of an application for leave to appeal against a criminal conviction or

sentence is not regulated by s 35 and would be governed by s 34.19
Just as s 35 both sufficiently and completely regulates the conduct of criminal
proceedings, so s 33 appears to sufficiently and completely regulate the conduct of
administrative action.20 Section 33 provides for ‘procedurally fair’ administrative action
and thus seems to leave neither room nor need for s 34’s fairness guarantee.21 But s 34
requires that hearings before tribunals and fora must be fair, suggesting that s 34 may
apply to administrative tribunals.
One way of resolving this difficulty is to draw a distinction between the
‘administrative’ functions of tribunals or other fora and the ‘judicial’ functions of such
fora. In Carephone (Pty) Ltd v Marcus NO22 the Labour Appeal Court held that the
Commission for Conciliation, Mediation and Arbitration’s (CCMA’s) function of
compulsory arbitration under the Labour Relations Act amounted to ‘administrative
action’ and that the fairness of a CCMA arbitration must therefore be determined with
reference to s 33, and not s 34. Administrative action, the court stated, may take many
forms, but even if judicial in nature, the action remains administrative.23 Section 33
required the process to be fair and equitable, the arbitrator to be impartial and unbiased,
the proceedings to be lawful and procedurally fair, written reasons to be given publicly
and the award to be justifiable and consistent with the right to fair labour practices.
However, in Sidumo24 Ngcobo J held in a separate concurring judgment that the
function performed by a CCMA commissioner involved a determination of facts and the
application of legal principles in order to decide whether or not a dismissal was fair. The
dispute referred to the CCMA a dispute that could have been litigated in the Labour
Court, but for the legislature’s desire for a speedy and less costly dispute resolution
mechanism. He held that the function performed by the CCMA was judicial and not
administrative in nature and therefore did not fall within s 33, but was regulated solely
by s 34.25 This difference in classification highlights the difficulty of adopting an
approach that relies on a classification of functions.
O’Regan J, on the other hand, held that the ‘fair public hearing’ requirement of s 34
was different to the requirements of s 33 and that CCMA proceedings could therefore be
simultaneously governed by both s 33 and s 34.26
What is clear is that s 34 applies to arbitration proceedings conducted in terms of
legislation27 but does not apply to private arbitrations.28 Whether s 33 also applies to
arbitration proceedings conducted in terms of legislation remains unsettled. What is also
clear is that even if classification of functions is adopted as the correct approach, once
the administrative function is complete, courts are entitled to review the administrative
19
Minister of Health v New Clicks South Africa (Pty) Ltd 2006 (2) SA 311 (CC) [68].
20
On the meaning of ‘administrative action’, see para 29.3(b) in Chapter 29 above.
21
Sidumo v Rustenburg Platinum Mines Ltd 2008 (2) SA 24 (CC) [146]–[147] (separate concurring judgment
of Sachs J).
22
Carephone (Pty) Ltd v Marcus NO 1999 (3) SA 304 (LAC).
23
Ibid [19].
24
Note 21 above.
25
Ibid [203]–[225].
26
Ibid [124].
27
Ibid [112], [124], [158], [163] and [209]. The Competition Tribunal has held that s 34 applies to its
proceedings: South African Breweries v Competition Commission [2011] ZACT 73 [156].
28
Lufuno Mphaphuli (note 8 above) [199]–[218]. Section 33 also does not apply to private arbitration. See
Telcordia (note 9 above) [50].
713
action and, at the review stage, s 34 will apply.29 This is not to say, however, that a
litigant may invoke their s 34 right to take administrative action on review without first
exhausting internal remedies.30
31.3 ACCESS TO COURTS AND OTHER FORUMS

Once a dispute can be resolved by law, s 34 generates a right of access to a court or,
where appropriate, another tribunal or forum. The purpose of this aspect of s 34 is to
provide protection against actions by the state and other persons that deny access to the
courts and other forums. The prime example of such a denial of access is the use of
so-called ‘ouster clauses’.31 But s 34 does more than merely outlaw ouster clauses. A
range of subtler restrictions on access to courts will also fall foul of the section. These
are considered below.
Section 34 does not entitle litigants to approach any court they choose. The rules of
jurisdiction in civil proceedings are therefore not an obstacle to access to court, as long
as they allow a litigant to approach a court of competent jurisdiction for relief.32 It is
also not a right to a ‘correct’ decision by a court or tribunal.33
(a) Access to justice

Does s 34 impose a positive obligation on the state to provide people with the means of
access to appropriate forums for the resolution of legal disputes? Such an interpretation
would mean that individuals are entitled to financial assistance from the state to have
their disputes resolved by a court or another forum, and to legal representation in some
cases.34 The reality of limited state resources is likely to discourage such an
29
Koyabe v Minister of Home Affairs 2010 (4) SA 327 (CC) [36].
30
Ibid [34]–[40].
31
Ouster clauses are provisions in legislation that seek to exclude or restrict the common-law jurisdiction of
the courts. They were particularly heavily relied upon in old-order security and immigration legislation. A typical
example was s 29(6) of the Internal Security Act 74 of 1982: ‘No court of law shall have jurisdiction to
pronounce on any action taken in terms of this section, or to order the release of any person detained in terms of
the provisions of this section’. Clauses like this had devastating consequences for detainees who could not
approach the courts for review of the administrative decision to detain them. Section 34 clearly renders
provisions like this unconstitutional. See Hintsho v Minister of Public Service and Administration 1996 (2) SA
828 (Tk) 842A (ouster clause providing that ‘no civil proceedings of whatever nature shall be brought in any
court of law to enforce or protect any rights, benefits or prospects affected by . . . this Decree’ violates s 22 of the
interim Constitution). In addition, the presumption of statutory interpretation against the ousting of the
jurisdiction of the court has been subsumed by the indirect effect of s 34: Lourens du Plessis The
Re-Interpretation of Statutes (2002) 169–173. In African National Congress v Chief Electoral Offıcer of the
Independent Electoral Commission 2010 (5) SA 487 (CC) [6]–[9] the Constitutional Court held that s 96(1) of
the Electoral Act 73 of 1998 which conferred final jurisdiction on the Electoral Court in respect of all electoral
disputes and complaints about infringements of the Electoral Code and which provided that ‘no decision or order
of the Electoral Court is subject to appeal or review’ should be interpreted in a manner that did not oust the
Constitutional Court’s jurisdiction to hear a dispute on appeal from the Electoral Court where that dispute
concerned a constitutional matter.
32
Dormehl v Minister of Justice 2000 (2) SA 987 (CC) [4] (rules of the Constitutional Court confining direct
access to urgent and exceptional cases is not unconstitutional); Besserglik v Minister of Trade, Industry and
Tourism 1996 (4) SA 331 (CC) (leave to appeal requirements not an infringement of the right).
33
Lane and Fey NNO v Dabelstein 2001 (2) SA 1187 (CC) [4]; Van der Walt v Metcash Trading Ltd 2002 (4)
SA 317 (CC) [14]. See also SACCAWU v Pick ’n Pay Retailers (Pty) Ltd (2012) 33 ILJ 279 (LC).
34
See Nkuzi Development Association v Government of the Republic of South Africa 2002 (2) SA 733 (LCC).
Moloto AJ held that a person whose tenure is threatened has a right to legal representation at state expense. The
court held that labour tenants and occupiers have a right to a fair trial before they may be evicted. For the trial to
714
interpretation of s 34. This is unfortunate, since the biggest single impediment to access
to justice is the prohibitive cost of litigation.35
The legislature is mandated to ensure the impartiality and efficiency of the courts and
their accessibility via legislative measures.36 It has taken legislative steps to promote
access to justice. The establishment of the CCMA37 has given thousands of people
access, without charge, to a forum for the resolution of labour disputes. Mention must
also be made of the Small Claims Courts, which have been operating for the past 20
years.38 The legislature has also sought to improve access to justice with such legislative
innovations as the Maintenance Courts,39 Rental Housing Tribunals,40 the National
Credit Regulator and National Consumer Tribunal,41 the National Consumer
Commission,42 the Companies Tribunal and the Takeover Regulation Panel,43 and the
proposed Information Regulator.44
Section 34 also imposes on the state the obligation to comply with court orders45 and
to ensure that resources are available for building courts, libraries, offices; for recording
facilities and security; and that judicial officers, interpreters, prosecutors and
administrative staff are salaried and adequately trained.46
The courts have started to recognise the impact of legal costs on access to justice has
been recognised by not making costs orders against losing applicants in what can be
described as ‘public interest’ litigation.47
In an effort to increase access to justice in civil matters, the Contingency Fees Act 66
of 1997 permits agreements between legal practitioners and clients that fees will only be
paid in the event that proposed litigation is successful.48 In Price Waterhouse Coopers
Inc v National Potato Co-operative Ltd49 the Supreme Court of Appeal overturned the
common-law prohibition on the enforcement of champertous agreements. Champerty
entails an agreement whereby an outsider provided finance to enable a party to litigate in
return for a share of the proceeds of the action if that party was successful.50 Such
be fair it is necessary that the labour tenant or occupier be represented at state expense if substantial injustice
would otherwise result. On the right to legal representation in criminal matters.
35
See Thusi v Minister of Home Affairs 2011 (2) SA 561 (KZP) [104] on the importance of finding creative
ways of making legal services available to those who cannot afford it.
36
Nyathi v Member of the Executive Council for the Department of Health, Gauteng and Another 2008 (5) SA
94 (CC) [84]; S v Jaipal 2005 (4) SA 581 (CC) [54]–[55].
37
The CCMA was established by the Labour Relations Act 66 of 1995.
38
The courts were established by the Small Claims Courts Act 61 of 1984.
39
Maintenance courts were established by the Maintenance Act 99 of 1998.
40
Provincial Rental Housing Tribunals are established in terms of the Rental Housing Act 50 of 1999.
41
Both of these institutions were created by the National Credit Act 34 of 2005.
42
The National Consumer Commission was established by the Consumer Protection Act 68 of 2008.
43
Both of these institutions are established by the Companies Act 71 of 2008.
44
The Protection of Personal Information Bill 9B of 2009 proposes the establishment of the Regulator to
provide dispute resolution in terms of the Bill and the Promotion of Access to Information Act 2 of 2000. See,
further, para 14.3(d) in Chapter 14 above.
45
Nyathi (note 36 above) [44].
46
S v Jaipal (note 36 above) [55]. On the right to an interpretor see Mabitsela v Department of Local
Government [2012] 8 BLLR 790 (LC). The Western Cape High Court found in Cape Bar Council v Judicial
Service Commission 2012 (4) BCLR 406 (WCC) [147] that, on the papers in that matter, the failure to fill judicial
vacancies did not amount to an actionable infringement of s 34.
47
See para 31.3(g) below.
48
The fee may not exceed 25 per cent of the amount of the award in the litigation. Criminal proceedings are
excluded from the Act as are any proceedings in respect of any family-law matter.
49
Price Waterhouse Coopers Inc v National Potato Co-operative Ltd 2004 (9) BCLR 930 (SCA).
50
Ibid [26].
715
agreements were regarded by the common law as contrary to public policy and
unenforceable on the basis that they encouraged speculative litigation and consequently
amounted to an abuse of the legal process. The considerations of public policy that had
underwritten the disapproval of such contracts, the Supreme Court of Appeal held, were
now out of date. The Contingency Fees Act indicated the legislature’s attitude on the
issue and public policy now had to be considered in the light of constitutional rights and
values, notably the right of ‘untrammelled’ access to court that is protected by s 34.51
Wallis J in the KwaZulu-Natal High Court was in favour of an exception to the
indemnity principle that would enable an attorney to provide legal assistance to an
indigent litigant on the basis that an order for costs will be sought and, if obtained, will
provide the source from which the attorney will be remunerated.52 At present, rule 40(7)
of the Uniform Rules of Court permits an attorney to tax a bill of costs on the basis of
the fees they would ordinarily have been entitled to where the client is indigent and
qualifies for in forma pauperis assistance. The Legal Aid Act entitles the Legal Aid
Board to recover costs and s 79A of the Attorneys Act permits the recovery of fees by
law clinics and deems those fees to be ceded to the clinic concerned.53
In Modderklip54 the respondent required the assistance of the state in evicting more
than 18 000 illegal occupants from its property. The respondent had obtained an eviction
order, but the sheriff refused to implement the order without a deposit of R1,8 million to
secure the assistance of a security firm to carry out the evictions. The respondent refused
to pay this amount and was therefore unable to enforce the eviction order.
The respondent approached the High Court for relief, and the matter reached the
Constitutional Court, which considered the obligations of the state flowing from the rule
of law in providing mechanisms for citizens to resolve disputes arising between them. A
finding that the state had no obligation in this regard would, the court held, remove the
effect of the right of access to courts. In this regard the court held as follows:
The obligation on the State goes further than the mere provision of [certain legislative]
mechanisms . . . It is also obliged to take reasonable steps, where possible, to ensure that
large-scale disruptions in the social fabric do not occur in the wake of the execution of court
orders, thus undermining the rule of law. The precise nature of the State’s obligation in any
particular case and in respect of any particular right will depend on what is reasonable,
regard being had to the nature of the right or interest that is at risk as well as on the
circumstances of each case.55
In this case, given that the ordinary mechanisms used to enforce eviction orders were not
effective, the court found that it was unreasonable of the state to stand by and do nothing
51
Ibid [41], [43]. The Contingency Fees Act is the only source of law empowering the use of contingency fee
agreements. The common law has not developed to a point where it recognises the validity of contingency fee
agreements outside of the ambit of the Contingency Fees Act. See South African Association of Personal Injury
Lawyers v Minister of Justice and Constitutional Development 2013 (2) SA 583 (GNP) [6]–[19], [27]–[34]. The
court was asked to find that the Contingency Fees Act was unconstitutional on the basis that it discriminated
unfairly between contingency fee agreements concluded between lawyers and their clients on the one hand, and
champerty and maintenance agreements concluded between clients and third parties on the other hand. The court
found that there was no unfair discrimination. A second argument that the maximum fee cap in s 2 of the Act and
the restrictions on settlement in s 4 of the Act infringed s 34 was rejected as the court held that there was no
evidence to support this argument.
52
Thusi (note 35 above). See also Section 27 v Minister of Education 2013 (2) SA 40 (GNP).
53
Thusi (note 35 above) [108].
54
President of the Republic of South Africa v Modderklip Boerdery (Pty) Ltd 2005 (5) SA 3 (CC).
55
Ibid [43].
716
while the respondent was attempting to evict tens of thousands of unlawful occupiers
who had nowhere else to go.56 The state could have expropriated the property and paid
compensation to the respondent; or it could have provided other land to the occupiers.
The fact that it did nothing breached the respondent’s right to an effective remedy as
implied in the right of access to courts and required by the doctrine of the rule of law.57
The court therefore ordered the state to pay compensation in respect of the land
occupied by the illegal occupants.58
The Land Claims Court has used s 34 to require that the phrase ‘direct and
substantial interest’ in the context of standing be interpreted broadly so as to enhance
access to courts,59 but this approach is not to be encouraged. As the Supreme Court
of Appeal held in Trinity Asset Management:60
the main purpose of s 34 is to confer on litigants the right of access to courts and other
independent and impartial tribunals. The section places an obligation on the state to establish
such fora. But it does not purport to define the category of litigants who qualify to take
disputes to courts, nor does it describe the nature of relief a party can competently seek.61
(b) The prohibition of self-help

Section 34 obliges the state to promote the resolution of disputes through legal means.
According to Ackermann J in S v Makwanyane:
in a constitutional state individuals agree (in principle at least) to abandon their right to
self-help in the protection of their rights only because the State, in the constitutional state
compact, assumes the obligation to protect these rights. If the State fails to discharge this
duty adequately, there is a danger that individuals might feel justified in using self-help to
protect their rights.62
In Lesapo v North West Agricultural Bank the court stressed the need for
‘institutionalising the resolution of disputes, and preventing remedies being sought
through self-help’. Unless there were good reasons, no one should be permitted to take
the law into their own hands. Not only is the right to access to court a bulwark against
vigilantism, but the rule against self-help is also necessary for the protection of the
individual against the arbitrary and subjective decisions and conduct of an adversary. It
is a guarantee against partiality and the consequent injustice that may arise.63
For courts to be effective in preventing self-help, it is necessary for them to be
open to all persons who seek the protection of the law, including those who are not
56
Ibid [48].
57
Ibid [51]. See also Nyathi (note 36 above) [60].
58
It is difficult to reconcile this dictum with the subsequent minority judgment in Nyathi (note 36 above) [134]
where Nkabinde J held that ‘Execution is a process which comes into play only after a court has given its
decision on a case’ and that therefore s 3 of the State Liability Act 20 of 1957 did not infringe s 34.
59
Beukes and Bekker: Re Farm Groote Springfontein [1997] ZALCC 3, unreported.
60
Trinity Asset Management (Pty) Ltd v Investec Bank Limited 2009 (4) SA 89 (SCA).
61
Ibid [58].
62
63
Lesapo (note 6 above) [11]–[12], [18] and [22]; Barkhuizen v Napier 2007 (5) SA 323 (CC) [31];
Pricewaterhouse Coopers (note 49 above) [42]; Concorde Plastics (Pty) Ltd v NUMSA 1997 (11) BCLR 1624
(LAC). See also Bezuidenhoudt v Patensie Sitrus Beherend Bpk 2001 (2) SA 224 (ECD) (rule against self-help
violated by a person who circumvented the effect of a High Court order by approaching the Competition Tribunal
for interim relief instead of appealing against the High Court order, the applicant impermissibly tried to side-step
the effect of the order by approaching the Tribunal).
717
South African citizens, but who find themselves in South Africa.64 It also requires
decisions to be given as soon as possible after the event giving rise to the dispute
and to follow sound reasoning based on the best available evidence.65
In Lesapo, the court invalidated s 38(2) of the Northwest Agricultural Bank Act
14 of 1981 which permitted the bank, without the need for a court order, to attach
and sell the property of a debtor, given in security for a loan. Section 34, the
Constitutional Court held, guaranteed that ‘any constraint upon a person or property
shall be exercised by another only after recourse to a court recognised in terms of
the law of the land.’66 The Act violated s 34 in that it allowed the bank to be a judge
in its own cause and to usurp the powers and functions of the courts. The fact that
the debtor could approach the courts after the attachment did not cure the violation
but merely restricted its duration.67 The primary justification for the provision was to
provide the bank with a speedy and inexpensive remedy to realise its securities. This
objective did not pass the limitation test since the bank could achieve the same result
without violating s 34, for example, by obtaining judgment and, if necessary, an
interim interdict preventing the debtor from disposing of the secured property.68
Section 152 of the Children’s Act 38 of 2005 permits social workers and police
officials to remove children from where they are for the purposes of placing them in
temporary safe care without a court order if it is reasonably believed that the child is
in need of care and protection; that it needs immediate emergency protection; that
the delay in obtaining a court order would jeopardise the child’s safety and
well-being; and that removal is the best way to secure the child’s safety and
well-being. The Constitutional Court held that this section unjustifiably infringed s 34
by delaying the family’s right of access to court. Although a family could in
principle apply for urgent relief, it was unfair for the state to remove a child and
then place the onus and cost on the family to initiate a review of that removal.69
Removing a child without a court order was akin to a situation where there is
statutory authorisation for taking the law into your own hands.70
64
Baramoto v Minister of Home Affairs 1998 (5) BCLR 562 (W) [577A]; Sharenisa v Minister van Veilighied
en Sekuriteit [2010] ZAFSHC 149, unreported [18].
65
Mdeyide (note 1 above) [8].
66
Lesapo (note 6 above) [16]. See also Zondi v MEC for Traditional and Local Government Affairs CC 2005
(3) SA 589 (CC) (invalidating segregation-era legislation providing for the impounding of straying livestock and
the sale of the livestock to recover the landowners’ fees or damages and the fees and expenses incurred by the
poundkeeper without any judicial intervention; unjustifiable to remove such a potentially divisive conflict
between landowners and landless people from judicial scrutiny.)
67
Lesapo (note 6 above) [20].
68
This aspect of the court’s reasoning is not persuasive. While an urgent interim interdict may be speedily
obtained, it is an expensive remedy. This was recognised in C v Department of Health and Social Development,
Gauteng 2012 (2) SA 208 (CC), discussed below. The point is that the Agricultural Bank is a state-funded
development institution and not a commercial concern; it is expected to take the rough with the smooth. Unless
such a bank is compensated by providing it with a cheap procedure to enforce its claims, it may have to
reconsider its lending policies, which in turn may result in the denial of funds to the poor. The Constitutional
Court found similar provisions in ss 34 and 55 of the Land Bank Act 13 of 1944 to be unconstitutional in First
National Bank of SA v Land and Agricultural Bank of SA 2000 (3) SA 626 (CC). The order was suspended for
two years since the immediate removal of the Bank’s statutory security (in many cases its only form of security
against certain debtors) was likely to have posed a considerable risk to it. The suspension order was combined
with an interim direction which prevented the bank from attaching and selling property without recourse to a
court of law.
69
C (note 68 above) [28], [37]–[38].
70
Ibid [79].
718
The implications of the prohibition of self-help for the panoply of statutory

powers facilitating revenue collection have been explored in a number of cases.
Relying on Lesapo, the High Court declared parts of ss 36 and 40 of the
Value-Added Tax Act 89 of 1991 unconstitutional. The challenged sections are
known as the ‘pay now, argue later’ provisions. The Act makes an assessed liability
for VAT immediately payable, notwithstanding the noting of an appeal against the
assessment by the taxpayer. The Act also creates a summary enforcement procedure
which allows the tax authorities to proceed against a taxpayer by filing a statement
in court certifying the amount of tax owed. The statement has the same effect as an
exigible civil judgment for a liquid debt and the correctness of the assessment on
which the statement is based is beyond challenge by the taxpayer in any proceedings
connected with the summary enforcement procedure.71
The Constitutional Court declined to confirm the declaration of invalidity, holding
that the provisions did not oust the jurisdiction of the courts.72 The decisions of the
Commissioner, including one not to suspend the obligation to pay pending appeal,
were administrative action and were reviewable as such. The taxpayer could, for
example, call on the Commissioner in review proceedings to justify such a decision
as rational.73 An aggrieved taxpayer could therefore approach the High Court for
urgent interlocutory relief pending the resolution of a dispute in the Special Court.74
Rather than preventing access to a court in violation of s 34, the Act provided a
taxpayer with access to another independent and impartial tribunal (the Special
Court) for resolution of a dispute with the Commissioner.75 Since the taxpayer could
challenge the correctness of an assessment by way of appeal, it was not surprising
(or objectionable) that the possibility of challenging the correctness of the very same
assessment by way of review was excluded. What the Act achieved was to compel
the taxpayer to appeal against the factual correctness of the assessment to the Special
Court while leaving intact the possibility of a review of the decision on other
grounds. Apart from challenging a decision not to suspend the obligation to pay, a
review could be instituted on the grounds that the Commissioner had acted
capriciously or in bad faith, or that he or she had misapplied the law.76
71
According to the High Court, the obligation to pay could not be suspended by a court, and the
Commissioner was entitled to execute on the assessment as if it amounted to a civil judgment, by simply filing a
statement with the registrar or clerk of any competent court. In reaching the conclusion that the limitation of s 34
was not justifiable under the limitations clause, the court remarked that, although temporary in nature, the
practical effect of the provision could result in the destruction of liquidity or even liquidation of a business
enterprise. The purpose was to facilitate the quick collection of tax, but less infringing alternatives such as higher
penalties or the furnishing of security were available to achieve the same purpose.
72
Metcash Trading Ltd v Commissioner, South African Revenue Service 2001 (1) SA 1109 (CC).
73
Ibid [42]. For similar reasons the Constitutional Court found in Armbruster v Minister of Finance 2007 (6)
SA 550 (CC) that the seizure and forfeiture of foreign currency under the Exchange Control Regulations without
the intervention of a court did not infringe s 34 because the decision to seize and forfeit currency could be taken
on review.
74
By analogy with this reasoning, the High Court in De Beer v Raad vir Gesondheidsberoepe van Suid-Afrika
2004 (3) BCLR 284 (T) upheld provisions of the Health Professions Act 56 of 1974 which provided that penalties
of striking from or suspension from the roll of practitioners remain in force until resolution of an appeal. An
aggrieved practitioner whose name had been struck from the roll but who wished to appeal could apply to the
court for an interdict preventing his or her removal from the roll pending appeal. There was therefore no ousting
of the court’s jurisdiction and no infringement of s 34.
75
Metcash (note 72 above) [47].
76
Ibid [71].
719
As far as the execution of the assessment by way of filing the statement was
concerned, the Court held that while the sections created a short-cut to obtaining a
judgment against a debtor, the Act did not allow self-execution of the judgment debt
by bypassing the courts as in Lesapo’s case. Here, the administrative decision fixing
liability for a statutory debt on the part of a vendor could not be acted upon in any
way other than by involving the judiciary.77
The important difference between the Lesapo provisions and those of the VAT
Act was therefore that the latter required execution of the debt to follow the ordinary
law and judicial procedures of civil execution.78 Even where there is no dispute
regarding a debtor’s obligation to a creditor, s 34 extends to the attachment and sale
in execution of a debtor’s property.79
Section 40(5) of the VAT Act was also challenged. The subsection prevents the
taxpayer, ‘in proceedings in connection with any statement filed in terms of
subsection (2)(a)’, from questioning ‘the correctness of any assessment upon which
such statement is based, notwithstanding that objection and appeal may have been
lodged against such assessment’. Properly interpreted, the court held, the section was
not ‘a complete bar to legal proceedings by a . . . [taxpayer] vendor with a view to
obtaining some form of relief in relation to an impending judgment in favour of the
Commissioner under section 40 of the Act’. It was, when read with the other
provisions of s 40, part of ‘a process in aid of enforcing payment of VAT and
ancillary imposts claimed by the revenue authorities pursuant to the exercise of
administrative powers’. Section 40(5) merely excluded ‘a specific category of—
usually disruptive—potential defences in such process’.80 Nevertheless, the Court
was prepared to assume in favour of the applicant that to the extent that the
subsection ‘does limit access to a court prior to the full airing of the issues before
the Special Court and does prevent a disgruntled taxpayer from obtaining interdictory
relief to suspend the operation of the “pay now, argue later” rule, it is in breach of
section 34 of the Constitution’. Even on this assumption, the breach could be
77
Ibid [52].
78
It was the absence of a provision similar to that in s 40(2)(a) of the VAT Act (providing that the debt
obtained by the truncated procedure had ‘all the effects . . . of a civil judgment’) that led the Constitutional Court
to have ‘substantial doubts’ as to whether s 114 of the Customs and Excise Act 91 of 1964 complied with s 34:
First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Services 2002 (4) SA 768
(CC) [118]. The issue was not decided. Section 114, which created a statutory lien in and allows the seizure (by
agents of the Commissioner) of property on the premises of a customs debtor, was declared an unconstitutional
violation of the property right to the extent that it allowed seizure of property belonging to someone other than
the debtor. This left the section intact insofar as it relates to property owned by the customs debtor. Doubt about
the validity of the remaining parts of s 114 vis-à-vis s 34 could be removed, the court suggested, by a legislative
amendment inserting words into the section like those in s 40(2)(a) of the VAT Act. The suggestion was taken up
by Parliament, which has amended s 114 to remove all mention of the statutory lien and to introduce a summary
procedure for obtaining a judgment debt against a customs debtor along the lines of the procedure in the VAT
Act: s 112 of the Revenue Laws Amendment Act 74 of 2002. Metcash (note 72 above) implies that contractual
measures assisting creditors to obtain rapid and cost-effective execution against the property of debtors are not in
violation of the prohibition of self-help unless they remove the possibility of any recourse to the judicial system.
See Bock v Dubororo Investments (Pty) Ltd 2004 (2) SA 242 (SCA) [15], in which the SCA held that the
prohibition of self-help had no bearing on contractual clauses permitting the sale of movables which are lawfully
in the possession of the creditor (parate executie clauses) since such clauses do not permit extra-judicial seizures
and do not prevent the debtor from seeking the protection of the courts [13]. Juglal NO v Shoprite Checkers t/a
OK Franchise Division 2004 (5) SA 248 (SCA) [11] appears to add the requirement that parate executie is
available only to a creditor whose debt is undisputed.
79
Lesapo (note 6 above); Zondi (note 66 above); Armbruster (note 73 above) [58].
80
Metcash (note 72 above) [57].
720
justified as a permissible limitation of the right. The s 40 measures served the

important purpose of ensuring full and speedy settlement of tax debts and were
essential to the operation of the overall scheme of the Act (which depended on
self-regulation by registered vendors and regular periodic payments of VAT). In
order for a ‘pay now, argue later’ scheme to work, it was necessary for the
Commissioner to obtain execution against a taxpayer without having to first air the
subject matter of the objection that would be adjudicated upon by the Special Court
in due course.81
(c) Restrictions on vexatious litigants

Section 2(1)(b) of the Vexatious Proceedings Act 3 of 1956 permits a court to declare a
person a vexatious litigant if ‘satisfied that the said person has persistently and without
any reasonable ground instituted legal proceedings in any court’. The effect of such a
declaration is that no legal proceedings can be instituted by the vexatious litigant in any
court without the leave of that court. Leave can only be granted if the court is satisfied
that the proceedings are not an abuse of the process of the court and that there are prima
facie grounds for the proceedings.
The constitutionality of the section was considered by the Constitutional Court in
Beinash v Ernst & Young.82 It was held that the purpose and effect of the section was to
restrict access of vexatious litigants to court and it was therefore an infringement of the
s 34 right. However, the infringement was a justifiable limitation of the right. The
limitation served a number of important purposes. Restricting access to vexatious
litigants was essential for protecting and securing the right of access to court for bona
fide litigants with meritorious disputes. Moreover, there was a constitutional duty to
protect the process of the courts and the administration of justice.83 As for the extent of
the limitation, a declaration that a person is a vexatious litigant can only occur through
an order of court after a judicial enquiry. The consequences of the declaration are not
immutable in that a vexatious litigant can institute proceedings with permission of the
court after having made out a prima facie case.84 The provision was therefore carefully
tailored to protect the rights of others in addition to important public interests, while its
effect on the rights of the vexatious litigant was not unduly far-reaching.
81
Ibid [60]. The High Court has, since Metcash, upheld s 47 of the VAT Act, which authorises the
Commissioner to appoint someone as an agent for a taxpayer and to direct the agent to make payment to the
Commissioner of money they hold for the taxpayer or that they owe to the taxpayer: Industrial Manpower
Projects (Pty) Ltd v Receiver of Revenue, Vereeniging 2001 (2) SA 1026 (W). Since this provision forms part of
the overall ‘pay now, argue later’ scheme of the Act, Cameron J was able to rely on the Constitutional Court’s
holding in Metcash that s 40(5) of the VAT Act could be considered a justifiable limitation of s 34. See also De
Beer (note 74 above) (upholding legislation that provides that, if an appeal is lodged against a penalty of removal
from the roll or suspension of a medical practitioner, the penalty remains effective until the appeal is heard).
82
Beinash v Ernst & Young 1999 (2) SA 91 (CC).
83
Ibid [17]. Section 165(3) of the Constitution provides that ‘no person or organ of state may interfere with the
functioning of the courts’.
84
Ibid [18]–[19].
721
(d) Amnesty
In AZAPO v President of the Republic of South Africa,85 the applicants attacked the
constitutionality of provisions of the Promotion of National Unity and Reconciliation
Act 34 of 1995. The Act established the Truth and Reconciliation Commission and
empowered an amnesty committee of the Commission to grant amnesty for any criminal
or delictual act committed with a political motive, provided that the applicant had made
full disclosure of all relevant facts relating to the act. Section 20(7) provides that no
person who has been granted amnesty in respect of an act can be held criminally or
civilly liable for that act.
According to the Constitutional Court, the amnesty provision was an infringement of
the right of access to court, ‘obliterating’ the right to obtain redress in the ordinary
courts of law.86 Nevertheless, the so-called ‘postamble’ or epilogue to the interim
Constitution specifically authorised a law conferring amnesty on wrongdoers in respect
of acts ‘committed in the course of the conflicts of the past’. This constitutional
provision qualified the right of access to courts and permitted the grant of amnesty. The
court accordingly upheld the provisions of the Act.87
(e) Notice and prescription provisions

The constitutionality of statutory notice requirements and expiry periods that apply in
civil actions against the state have been questioned in a number of cases.88
The provisions of s 113(1) of the Defence Act 44 of 1957 were considered by the
Constitutional Court in Mohlomi v Minister of Defence.89 The subsection only permitted
actions against the Minister of Defence relating to the conduct of members of the
defence force to be instituted within six months after the cause of action arose and if
notice of the action had been given to the defendant (ie the Minister) one month before
the commencement of the action. The Constitutional Court found the subsection
inconsistent with the interim Constitution’s right of access to court. The infringement of
the right was not justifiable and the subsection was therefore declared invalid.
According to the Court:
What counts . . . is the sufficiency or insufficiency, the adequacy or inadequacy, of the room
which the limitation [of the right to access to court] leaves open in the beginning for the
exercise of the right. For the consistency of the limitation with the right depends upon the
availability of an initial opportunity to exercise the right that amounts, in all the
circumstances characterising the class of case in question, to a real and fair one. The test,
thus formulated, lends itself to no hard and fast rule which shows us where to draw the line.
In anybody’s book, I suppose, seven years would be a period more than ample during which
85
AZAPO v President of the Republic of South Africa 1996 (4) SA 671 (CC).
86
Ibid [10].
87
Section 20(10) of the National Unity and Reconciliation Act provided that, if a person received amnesty, any
previous conviction ‘shall for all purposes, including the application of any Act of Parliament or any other law, be
deemed not to have taken place’. This was held to restore a former convict to full civil status but not to ‘render
untrue the fact that the perpetrator was convicted, or expunge the deed that led to his or her conviction. Those
remain historically true’. The effect was that to call a person who had received amnesty a ‘murderer’, though
defamatory, could be justified as true and in the public interest. The Citizen (1978) (Pty) Ltd v McBride 2001 (4)
SA 191 (CC) [71]–[72].
88
See Qokose v Chairman, Ciskei Council of State 1994 (2) SA 198 (Ck); Mbuyisa v Minister of Police,
Transkei 1995 (2) SA 362 (Tk) 366C; Zantsi v Chairman, Council of State, Ciskei 1995 (2) SA 534 (Ck) 566E;
Hans v Minister van Wet en Orde 1995 (12) BCLR 1693 (C); Swanepoel v Transnet 2000 (2) SA 191 (T).
89
Mohlomi v Minister of Defence 1997 (1) SA 124 (CC).
722
to set proceedings in motion, but seven days a preposterously short time. Both extremes are
obviously hypothetical. But I postulate them in order to illustrate that the enquiry turns
wholly on estimations of degree.90
The court also compared the provisions of the Defence Act with similar limitations in
the Prescription Act 68 of 1969 and s 32(1) of the Police Service Act 68 of 1995. The
latter two statutes allowed a court to condone non-compliance with their requirements
and were a great deal less stringent and less detrimental to the interests of claimants than
the provisions of the Defence Act.91
Moise v Greater Germiston Transitional Local Council92 dealt with a 90-day notice
requirement in the Limitation of Legal Proceedings (Provincial and Local Authorities)
Act 94 of 1970. Section 2(1)(a) of the Act required creditors contemplating proceedings
against provincial or local authorities to give notice of such proceedings within 90 days
of the debt becoming due. Other parts of the Act provided that after service of the notice,
no legal proceedings may be instituted against the authority before the expiration of a
period of 90 days (the so-called ‘investigation/negotiation period’), unless the debtor has
in writing denied liability for the debt before the expiration of such period. The Act then
placed a bar on the institution of proceedings 24 months after the date when the debt
became due.
In confirmation proceedings, the Constitutional Court held that s 2(1)(a) was a
violation of the right of access to court in s 34, and was not justifiable under the
limitation clause. This was despite the opportunity provided for in the Act for
condonation by a court of a creditor’s failure to comply with the notice requirement,
an opportunity found to be too limited to compensate for the obstacles that the Act
placed in the way of prospective litigants.93
In Engelbrecht v Road Accident Fund94 the Constitutional Court dealt with a
regulation that required those claiming from the Road Accident Fund in
hit-and-run-cases to submit an affidavit to the police in which particulars of the
occurrence were fully set out within 14 days after ‘being in a position to do so’ and
‘if reasonably possible’, failing which the Fund would not be required to compensate
the claimant. The court found a 14-day period to be too short.95 The two phrases
quoted above were irrelevant to whether or not the 14-day period was too short and
unfair. They merely served to postpone or delay the commencement of the 14-day
90
Ibid [12].
91
Section 57 of Proclamation R5 of 1995 required legal proceedings to be instituted against the police within
one year after the plaintiff became aware of the cause of action and one month after written notice had been given
to the Minister of the intention to institute proceedings. Subsection 5 provided that a court of law may dispense
with these requirements where the interests of justice so required. Its predecessor, s 32(1) of the Police Act 7 of
1958 corresponded closely to s 113 of the Defence Act, and was invalidated, with retrospective effect, in Baldeo
v Minister of Safety and Security 1997 (12) BCLR 1728 (D). Legal proceedings against the police are now
regulated by the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002. See the
discussion of the Act further below.
92
Moise v Greater Germiston Transitional Local Council 2001 (4) SA 491 (CC).
93
See also Potgieter v Lid van die Uitvoerende Raad: Gesondheid, Provinsiale Regering Gauteng 2001 (11)
BCLR 1175 (CC) (provisions of Mental Health Act 18 of 1973 requiring legal proceedings in respect of acts
performed under the Act to be brought within three months of their occurrence did not allow a real and fair
opportunity to an aggrieved party to enforce his or her rights).
94
Engelbrecht v Road Accident Fund 2007 (6) SA 96 (CC).
95
Ibid [30]–[31].
723
period;96 they did not confer on the court the power to render the 14-day period
flexible or variable.97 The regulation was ultimately found to be unconstitutional.98
The three-year period within which claims against the Road Accident Fund are to
be lodged was challenged in Road Accident Fund v Mdeyide.99 The court in this case
went into some detail as to the importance of and necessity for prescription periods:
in addition to the interests in certainty and finality, prescription periods also maintain
the integrity of the functioning of the courts by ensuring that matters are adjudicated
before evidence is lost and witnesses become unavailable to testify with sufficient
clarity and certainty. The proper functioning of the courts is central to the rule of
law, and promotes the right of access to courts.100 Prescription periods therefore, at
one extreme, infringe the right of access to courts, and at the other extreme, preserve
the rule of law and promote access to courts. It is essential to strike an appropriate
balance between these two interests.
However, in this case, the prescription period starts running as soon as the cause
of action arises, regardless of whether the claimant has knowledge of the existence
of the Fund and the facts necessary to sustain the cause of action. Secondly, there is
no provision for condonation: if a claimant fails to lodge his or her claim within
three years of the cause of action arising, they are precluded from doing so at all,
regardless of the reason for the delay.
The court held that the provision clearly limited the right of access to courts. In
considering whether such limitation was justifiable, the court held as follows:
The central issue is one of proportionality. All the factors are to be considered and weighed
together; not one of them is conclusive on its own. In this process, the devastatingly final
effect of prescription on a claim, the inflexibility of the starting point of the prescription
period in section 23(1), the absence of a knowledge requirement and provision for
condonation and the difficult situation in which some claimants might be placed, must be
considered, especially against the backdrop of poverty and illiteracy in our society. These
must be weighed against the generosity of the time period of three years, the need for the
proper administration of public funds and the potential harmful effects of a more flexible or
open dispensation.101
One of the relevant factors in this case was the impact on the expenditure of public funds
should the time-bar be made more open and flexible. The court held that a relaxation of
the time-bar would impact heavily on the administration of the fund, and that this
increased burden would have a negative impact on the public, whose claims would be
processed more slowly. The limitation of the right was therefore closely related to the
functioning and financial stability of the fund.102 Ultimately these interests were found
to justify the limitation of the right of access to courts of those who wished to lodge
claims against the fund.103
96
Ibid [35].
97
Ibid [38].
98
Ibid [43].
99
Note 1 above.
100
Ibid [8].
101
Ibid [65].
102
Ibid [77]–[79].
103
Ibid [93]. In Nicor IT Consulting (Pty) Ltd v North West Housing Corporation [2009] ZANWHC 26,
unreported) the court interpreted the word ‘debt’ narrowly so as to refer only to damages claims and not to other
causes of action because a wide interpretation of the word ‘debt’ would limit access to courts and it was therefore
appropriate to interpret the statute restrictively.
724
Parliament has since repealed a number of remaining statutory limitation

provisions and replaced them with a uniform statute regulating proceedings against
organs of state: the Institution of Legal Proceedings against Certain Organs of State
Act 40 of 2002. The Act defines an organ of state widely to include all departments
of state at national and provincial level, municipalities, and certain other listed
statutory institutions and functionaries. As far as prescription goes, state debts are
treated in the same way as civil debts. Debts of organs of state (defined as causes of
action arising ‘from delictual, contractual or any other liability’ or from acts or
omissions in terms of any law) prescribe in terms of ch III of the Prescription Act 68
of 1969.104 The Act retains a notice requirement before legal proceedings are
instituted. Notice must be given within six months of the date on which the debt
became due, but failure to comply with the notice requirement may be condoned for
good cause if the debt has not prescribed and the court considering the condonation
application is satisfied that the organ of state was not prejudiced by the failure to
comply.105
The Constitutional Court considered the constitutionality of a time-bar clause in a
contract in Barkhuizen v Napier.106 The applicant in this case challenged the validity
of a clause in his short-term insurance contract requiring him to serve summons on
his insurance company within 90 days of their repudiation of his claim. The High
Court had upheld his argument that this provision infringed his right of access to
courts. The Supreme Court of Appeal reversed this decision, holding that there was
no evidence that the insurance contract was not entered into freely and voluntarily.
The applicant approached the Constitutional Court to determine whether the
time-bar clause in the insurance contract was contrary to public policy as informed
by the Constitution, and particularly the right of access to courts. The court
expressed reservations about the appropriateness of testing the constitutionality of a
contractual provision directly against a provision of the Bill of Rights.107 Instead the
court preferred to measure the contractual term against public policy as determined
by reference to the values that underlie a constitutional democracy as expressed in
the Bill of Rights.108 The court found that the clause limited the applicant’s right to
seek judicial redress.109 However, given the important reasons for the use of time-bar
clauses the limitation would only be found to be contrary to public policy if the
clause did not afford the applicant a reasonable and adequate opportunity to refer
their dispute to a court.110 The court departed from the objective approach to time-
bar clauses it had followed in the previous cases, including in Engelbrecht111 which
was handed down only a month before Barkhuizen, and held that whether a clause is
fair depends upon a two-part test: (1) whether the clause in issue is unreasonable and
104
The Act does not regulate the time-limits on applications for judicial review of administrative action. These
are governed by the Promotion of Administrative Justice Act 3 of 2000.
105
In Mohlomi (note 89 above) [9] Didcott J appeared to endorse notice requirements as having the ‘obviously
useful and apparently legitimate purpose’ of giving organs of state ‘an opportunity to investigate claims laid
against it, to consider them responsibly and to decide, before getting embroiled in litigation at public expense,
whether it ought to accept, reject or endeavour to settle them’.
106
Note 63 above.
107
Ibid [26].
108
Ibid [28]–[30].
109
Ibid [45]–[46].
110
Ibid [55]–[57].
111
Note 94 above.
725
(2) if it is unreasonable, whether the clause should be enforced in the light of the
circumstances which prevented compliance with the time limitation clause.112 The
court held that even though a clause might be objectively consistent with public
policy, the terms might nevertheless be contrary to public policy in the light of the
relative situation of the contracting parties.113 Following a context-specific
investigation into whether the circumstances justified a finding that the applicant
could not reasonably have complied with the time-bar clause, the majority found that
this was not the case and that the time-bar clause was not contrary to public policy.
Moseneke DCJ, in a dissenting decision, held that the contents of ‘public policy’
must be objectively determined. The process of determining whether a contractual
clause is contrary to public policy has little to do with the personal circumstances of
the party seeking to avoid the application of that clause. The question is whether the
clause clashes with public norms and is assessed to be unreasonable, having regard
to all the terms of the contract.114 Moseneke DCJ held the clause to be unreasonably
short and manifestly inflexible, to the point that it denies the insured the reasonable
opportunity to have the dispute decided by a court.115 He found there to be no
justification for this short period, and accordingly held that it should be declared
invalid.
The approach of Moseneke DCJ is to be preferred. It is in the interests of justice
and legal certainty that a time-bar clause be valid or invalid regardless of who it
applies to. In determining the validity of a provision, courts are required to consider
its impact on all those to whom it applies, and not just the immediate litigants before
it.
Section 78(2) of the Promotion of Access to Information Act 2 of 2000 required a
person who had requested information and was aggrieved by a decision refusing
access to bring an application to court for relief within 30 days. In Brümmer v
Minister for Social Development116 the Constitutional Court held that this 30-day
time period did not afford requestors an adequate and fair opportunity to seek
redress117 and found it to be unconstitutional.118 The provision was not saved by the
existence of the power to condone non-compliance with the section. What mattered
was the real and fair opportunity to exercise the right to seek judicial redress.119 The
court highlighted the importance of time-bar provisions in preventing delays in
litigation and undermining the interests of justice.120 However, in the context of
litigation directed at obtaining access to existing documents, these considerations
were less important.121
In Soller122 the applicant challenged the constitutionality of s 25(1) of the Supreme
Court Act 59 of 1959 which provides that a civil claim may not be instituted against
a judge without authorisation from the court in which that judge sits. The section
112
Barkhuizen (note 63 above) [56].
113
Ibid [59].
114
Ibid [96]–[97].
115
Ibid [111].
116
Brümmer v Minister for Social Development 2009 (6) SA 323 (CC).
117
Ibid [55].
118
Ibid [70].
119
Ibid [55].
120
Ibid [56].
121
Ibid [57].
122
Soller v President of the Republic of South Africa 2005 (3) SA 567 (T).
726
was held to infringe the right of access to courts, but served an important purpose,
namely to ensure the independence of the judiciary by protecting judges from the
fear of being dragged to court unnecessarily over their judgments. The court upheld
the constitutionality of the section.123
(f) Abolition of causes of action

Section 35(1) of the Compensation for Occupational Injuries and Diseases Act 130 of
1993 was challenged in Jooste v Score Supermarket Trading (Pty) Ltd.124 The Act
contains provisions that are beneficial to an employee as well as provisions limiting the
employee’s right to be compensated for injuries at the workplace. A benefit is that the
employee can receive compensation for work-related injuries without having to prove
negligence by anyone.125 A disadvantage is that a claim must be lodged within 12
months of the date of the accident. Further, there is a limit on the amount of
compensation payable to the employee and no provision is made for general damages.
Section 35(1) of the Act further provides that the statutory action replaced the common-
law action for damages. No common-law action could therefore be brought against an
employer for damages in respect of an occupational injury or disease.
The High Court invalidated the provision for violating the equality clause,126 but the
Constitutional Court refused to confirm the order of invalidity, holding that the
provision was rationally defensible. It dealt summarily with the challenge to the
provision based on the right of access to court:
The contention in regard to s 22 of the interim Constitution was not that the statutory
mechanism and tribunal for the speedy determination of compensation created by the
Compensation Act violates the right of access to courts. Rather, it was argued that the denial
of the right to claim general damages is somehow a denial of the right of access to a court.
The section does not deny such access. The fact that the plaintiff cannot go to court to claim
damages against the employer really follows from the removal of the right to claim common
law damages. Section 22 of the interim Constitution does not call for the retention of all
common law rights of action which existed at any stage.127
The same approach was adopted by the Supreme Court of Appeal in regard to a
submission that s 35(1) of the Compensation for Occupational Injuries and Diseases Act
limited the right of access to court by preventing those with claims from pursuing a
claim that would otherwise have existed under the common law. The Court held that an
alteration of the substantive law did not impact on s 34 which was a right concerned
with procedural access.128
This means that s 34 is not implicated if existing common-law or statutory causes
123
Ibid [14]–[17].
124
Jooste v Score Supermarket Trading (Pty) Ltd 1999 (2) SA 91 (CC).
125
In cases where negligence was proved by the worker, he or she could claim additional (but still limited)
compensation.
126
Jooste v Score Supermarket (Pty) Ltd 1998 (9) BCLR 1106 (E). Zietsman J held that the purpose of the Act
was to benefit employees and that there was therefore no rational connection between s 35(1), which denied an
employee the right to claim full compensation from the employer if the injuries were caused by the negligence of
the employer, and the purpose of the Act.
127
Jooste (note 124 above) [21]. See also Law Society of South Africa v Minister of Transport 2010 (11)
BCLR 1140 (GNP) [20].
128
Mankayi v Anglogold Ashanti Ltd 2010 (5) SA 137 (SCA) [45].
727
of actions are abolished.129 But s 34 is violated if the procedures for enforcing an

existing right are removed or found to be unfair.130 In the light of the Constitutional
Court’s holding in Jooste,131 the abolition of existing causes of action will have to be
tested against other fundamental rights, such as the right to property, human dignity
or equality.
(g) Costs orders and requirements of security for costs

In constitutional litigation, the Constitutional Court has adopted an approach to costs
that is aimed at minimising the potentially ‘chilling effect’ of an adverse costs order on
prospective litigants.132 A similar approach is followed by the Land Claims Court in
respect of litigation arising from the ‘social interest’ legislation under its jurisdiction.133
Mthetwa v Diedericks134 held that rule 49(1) of the Magistrates’ Courts Rules was
inconsistent with the right of access to court and therefore invalid. The rule required an
applicant for rescission of a default judgment to furnish security for the costs of the
respondent. The court held that the necessity underlying the requirement of security was
not immediately apparent. It frequently happens that a default judgment is given against
a defendant without any knowledge on his or her part that an action has been instituted
and without having been at fault in relation to the granting of the judgment. In such
cases, the rule that the applicant should furnish security before being able to apply for
rescission of the judgment worked unfairly.
Similarly in Shepherd v O’Niell135 rule 49(13) of the Uniform Rules of Court was
found unconstitutional. The rule required an appellant to furnish security for the
respondent’s costs of appeal, unless the respondent had waived his or her right to
demand security. The court held that condonation could not be granted but, even if there
had been a discretion to condone, it was not sufficiently broad.
In contrast, the constitutional validity of s 13 of the Companies Act 61 of 1973 read
with rule 47 of the Uniform Rules of Court, which allowed a defendant to demand
security from a bankrupt plaintiff company, was upheld because of the much wider
discretion a court enjoyed under this section.136
In Giddey NO v JC Barnard and Partners137 the applicant argued that the court a quo
exercised its discretion in terms of s 13 in a manner that infringed the right of access to
129
Lane v Dabelstein 2001 (2) SA 1187 (CC) (s 34 offers no protection against a court making incorrect
decisions).
130
Mohlomi (note 89 above).
131
Jooste (note 124 above).
132
Biowatch Trust v Registrar, Genetic Resources 2009 (6) SA 232 (CC) [21].
133
Skhosana v Roos 2000 (4) SA 561 (LCC) [30]; Valley Packers Co-operative Ltd v Dietloff [2001] 2 All SA
30 (LCC) [13]; Hurenco Boedery (Pty) Ltd v Regional Land Claims Commissioner, Northern Province 2003 (4)
SA 280 (LCC); Hlatshwayo v Hein [1997] ZALCC 5, unreported. The principle that can be distilled from these
cases is that the purpose of legislation aimed at protecting vulnerable and marginalised people and groups would
be undermined if litigants faced the prospect of a costs order if their attempt at vindicating their rights failed.
134
Mthetwa v Diedericks 1996 (4) SA 381 (N). In Hekpoort Environmental Preservation Society v Minister of
Land Affairs 1998 (1) SA 349 (CC), the society argued that an order for security of costs effectively denied them
access to the courts in order to protect the environmental public interest. The Constitutional Court denied the
society direct access, holding, inter alia, that it should have opposed the application for security of costs on
constitutional grounds in the High Court.
135
Shepherd v O’Niell 2000 (2) SA 1066 (N).
136
See Shepstone & Wylie v Geyser NO 1998 (3) SA 1036 (SCA) 1045I; Lappeman Diamond Cutting Works v
MIB Group (No 1) 1997 (4) SA 908 (W); Bookworks v Greater Johannesburg Transitional Metropolitan Council
1999 (4) SA 799 (W).
137
Giddey NO v JC Barnard and Partners 2007 (5) SA 525 (CC).
728
courts. The Constitutional Court held that in exercising its discretion in terms of s 13, a
court must have due regard to s 34 of the Constitution. Thus courts must take account of
the potential injustice of a plaintiff being unable to pursue his or her legitimate claim, as
well as the possible impact on a defendant who is successful in defending the claim but
cannot recover the costs of this defence. The relevant factors in this regard are the
likelihood of a termination of the plaintiff’s action should an order for security be
granted, the attempts the plaintiff has made to secure financial assistance, and whether
the plaintiff’s financial difficulties are caused by or related to the alleged conduct of the
defendant.138 The applicant who had failed on the facts, also failed to demonstrate any
attempts to secure financial assistance from elsewhere. There was further no evidence of
a detrimental impact of an order for security on the prosecution of the claim by the
plaintiff. The court accordingly declined to interfere with the discretion exercised by the
High Court.139 The Companies Act 71 of 2008 has repealed s 13 of the previous
Companies Act of 1973 and contains no comparable provision.
The Western Cape High Court has declined to order an impecunious plaintiff to
furnish security for costs in terms of rule 47(1) where the plaintiff’s claim raised
important constitutional issues.140 The North Gauteng High Court has held that where an
organ of state is engaged in litigation with an incola, the right of the incola to access to
court is sacrosanct and no impediment to access must be placed in the path of the incola
directly or indirectly in the form of calling upon such an incola to pay security for
costs.141
The Constitutional Court has considered the constitutionality of the provisional
sentence summons procedure provided for in rule 8 of the Uniform Rules of Court. It
held that in most cases the provisional sentence summons procedure will be fair: the
plaintiff has to establish on a balance of probabilities that a defendant acknowledged
liability for the amount claimed and the defendant has an opportunity to state its defence
on affidavit.142 This did not infringe the right as s 34 confers a right to a hearing—not
necessarily a right to a trial.143 However, in certain narrowly defined circumstances,
namely when a defendant is unable to establish its defence on affidavit and is unable to
pay the full amount of the judgment and the court is unable to exercise its discretion to
refuse provisional sentence, a defendant is deprived of the opportunity of properly
presenting a defence and the right of access to courts is limited.144 The hearing the
defendant receives is not fair if a final judgment is granted without the defendant having
had an opportunity of presenting a full defence.145
Provisional sentence is an important procedure which enables a creditor to obtain
speedy relief in a justice system that often moves unacceptably slowly.146 Excluding
unmeritorious defences also serves the interests of justice by making scarce resources
138
Ibid [30].
139
Ibid [34].
140
Mare v Plettenberg Bay / Bitou Municipality [2008] ZAWCHC 61, unreported.
141
South African Airways (Pty) Ltd v Makwetla & Associates CC [2008] ZAGPHC, unreported [14].
142
Twee Jonge Gezellen (Pty) Ltd v Land and Agricultural Development Bank of South Africa 2011 (3) SA 1
(CC) [36]–[37].
143
Ibid [38].
144
Ibid [41]–[43], [49].
145
Ibid.
146
Ibid [57].
729
available for the resolution of real disputes.147 The limitation on the right is, however, a
drastic one for defendants who fall within the narrowly defined circumstances.148 The
court held that the limitation on the court’s discretion went further than was necessary to
protect the plaintiff’s interests.149 The court found the limitation to s 34 unjustifiable and
developed the common law so as to afford the court the discretion to refuse provisional
sentence in instances where a defendant is unable to satisfy the judgment debt, there is
an even balance of prospects of success on the papers, and there is a reasonable prospect
that oral evidence may tip the balance of prospective success in the defendant’s
favour.150
(h) Limitations on appeal and review

Besserglik v Minister of Trade, Industry and Tourism151 was a challenge to s 20(4) of
the Supreme Court Act 59 of 1959. The subsection requires a would-be appellant in civil
proceedings to obtain leave to appeal from the provincial or local division against whose
judgment the appeal is sought. The applicant argued, inter alia, that the right of access to
court implied that persons have the right to have their disputes determined fairly by a
court of law until final determination. This argument was rejected by the Constitutional
Court. Whatever the right of access to court means, it was not infringed by a screening
procedure that provides for an adequate right to appeal but that protects the effective
administration of the appeal system by excluding unmeritorious appeals.152
While arbitration agreements do not oust the jurisdiction of the courts,153 when a
party chooses to resort to arbitration he or she may, by agreement, forfeit the right to
appeal. Parties may choose to forgo an appeal in order to obtain a speedy resolution of
the dispute. Usually therefore, the decision of the arbitrator is final.154 The Arbitration
Act also limits the grounds of judicial review of an arbitrator’s decision. These
provisions do not impair the right of access to court. By entering into an arbitration
agreement, the parties elect to access ‘another independent and impartial tribunal’.155
The common-law rule which requires administrative review proceedings to be
instituted within a reasonable time was upheld in Bellocchio Trust Trustees v
Engelbrecht NO.156 Hlophe JP held that s 34 of the Constitution does not confer an
147
Ibid [58].
148
Ibid [59].
149
Ibid [64].
150
Ibid [66].
151
Note 32 above. See also National Union of Metalworkers of South Africa and Others v Fry’s Metals (Pty)
Ltd (2005) 26 ILJ 689 (SCA) [31].
152
In Thint (note 18 above) the Constitutional Court held that the right of access to courts is not intended to
grant standing to a person even after that person has received a full and proper hearing simply because such
person alleges a rights violation. Such an interpretation of s 34 would nullify the rules of standing.
153
Coetzee v Comitis 2001 (1) SA 1254 (C) [20.4] (court retains a discretion on whether it should determine
the dispute).
154
See s 28 of the Arbitration Act 42 of 1965.
155
See Carephone (note 22 above) [33]: ‘There is no constitutional right to have matters capable of being
decided by the application of law determined by a court of law. It may be done by another independent and
impartial tribunal (s 34 of the Constitution). The Commission [for Conciliation, Mediation and Arbitration] is
such a tribunal. It is . . . quite proper to give an independent and impartial administrative tribunal the exclusive
competence to decide not only matters of fact, but also of law, with no right to appeal to a court.’ See, however
Lufuno Mphaphuli (note 8 above) where the Constitutional Court held that s 34 did not apply to private
arbitration.
156
Bellocchio Trust Trustees v Engelbrecht NO 2002 (3) SA 519 (C).
730
absolute right of access to court and that the rule is necessary to protect litigants against
prejudice caused by delays and to ensure finality in litigation.157
(i) Reasons for judicial decisions

In Mphahlele v First National Bank of South Africa Ltd158 the Constitutional Court held
that the judiciary has a general constitutional duty, derived from the rule of law, to give
reasons for their decisions. The court added that it ‘may well be, too, that where a
decision is subject to appeal it would be a violation of the constitutional right of access
to courts if reasons for such a decision were to be withheld by a judicial officer’.159
Generally speaking, an appeal court must also furnish reasons for its decisions.160 Other
considerations, however, apply in applications for leave to appeal to a court of last
instance. To require such a court to listen to argument and give reasoned judgments
would defeat the purpose of the requirement of leave to appeal,161 which is to avoid
wasting judicial time on meritless appeals. By refusing leave, the final court in effect
holds that there are no reasonable prospects of success. It is not obliged to give reasons
for this conclusion.162 It is also appropriate to deal with some matters summarily and
make orders without furnishing reasons. This would be the case, for instance, in
unopposed applications where the law and the result is clear, and in respect of
applications for direct access to the Constitutional Court.163
(j) Res judicata and issue estoppel

In Bafokeng Tribe v Impala Platinum Ltd,164 Friedman JP indirectly applied s 34 in
rejecting pleas of res judicata and issue estoppel. Apartheid laws prevented Africans
from owning land in white areas. For this reason, land belonging to the Bafokeng tribe
had been registered, for more than a century, in the names of others: white missionaries
and, later, government officials, who acted as trustees for the tribe. In Impala Platinum,
the tribe sought an order declaring void the registration of their land in the name of
Lucas Mangope, the former State President of Bophuthatswana, and declaring void
certain mining leases and notarial cessions thereof which had been concluded on behalf
of the tribe by Mangope as trustee. In earlier litigation, the tribe had unsuccessfully
sought an order declaring the notarial cession of one of the mining leases to be
terminated. It was therefore argued that the issue was res judicata and that it could not
be raised in subsequent litigation. The court held that the earlier case dealt with different
157
The rule now has a statutory basis in s 7(1) of the Promotion of Administrative Justice Act 3 of 2000
(judicial review of administrative action must be instituted without unreasonable delay and within 180 days of
the date on which administrative action is communicated to applicant).
158
Mphahlele v First National Bank of South Africa Ltd 1999 (2) SA 667 (CC).
159
Ibid [12]. See also Strategic Liquor Services v Mvumbi NO 2010 (2) SA 92 (CC) [18] (‘failure by a judge to
provide reasons for a decision for purposes of appeal ‘cuts right across the . . . right of access to courts’).
160
Mphahlele (note 158 above) [13].
161
Ibid [15].
162
Mphahlele (note 158 above) deals with the practice of the Supreme Court of Appeal of dismissing
applications for leave to appeal without giving reasons. The practice was upheld insofar as the SCA was the court
of final instance in the matter that was the subject of the application. A different rule might apply if the matter
gave rise to constitutional issues and a further appeal to the Constitutional Court was available. This question was
raised but not decided in Greenfields Drilling CC v Registrar of the Supreme Court of Appeal 2010 (11) BCLR
113 (CC).
163
Mphahlele (note 158 above) n 10.
164
Bafokeng Tribe v Impala Platinum Ltd 1999 (3) SA 517 (B).
731
subject matter, but also that s 34 of the Constitution required that the principles of res
judicata and issue estoppel should not be applied in a manner which would lead to
injustice.
31.4 A COURT OR, WHERE APPROPRIATE, ANOTHER INDEPENDENT AND IMPARTIAL

TRIBUNAL OR FORUM
(a) Meaning of ‘where appropriate’

The Constitution provides that the judicial authority of the Republic is vested in the
courts.165 However, to reduce the burden on the courts and, sometimes, to compensate
for a lack of certain specialised knowledge or experience, judicial functions are
frequently entrusted to tribunals, agencies, commissions, boards and other creatures of
statute. An example is the Competition Commission and Tribunal, set up in terms of the
Competition Act 89 of 1998.166 When is it ‘appropriate’ to confer judicial authority on
such other tribunals or forums?
Section 166 of the Constitution explicitly requires certain legal proceedings to be
conducted by the courts, such as conviction and sentencing for committing a criminal
offence. For this reason s 35(3)(c) of the Constitution provides that every accused
person shall have the right to a public trial in an ‘ordinary court’.167 In De Lange v Smuts
NO168 the Constitutional Court held that a judicial officer (ie a judge or magistrate, but
not necessarily a court) must preside over a hearing when a person’s physical freedom is
at stake. It will only be ‘appropriate’ for another tribunal or forum to commit a person to
prison if it is ‘constituted, or presided over, by a judicial officer of the court structure of
the 1996 Constitution’.169
The rationale for allowing tribunals and forums other than courts to perform judicial
functions is obvious. Specialisation, expertise, the need to consider local circumstances
and the need for the adoption of expeditious, informal and inexpensive procedures
justify the establishment of such bodies by legislation.170
(b) Independence and impartiality

Section 35(3)(c) of the Constitution and the decision of the Constitutional Court in De
Lange recognise that non-judicial officers do not have sufficient independence to decide
on the deprivation of an individual’s freedom. It must therefore follow that the
Constitution does not require ‘other tribunals and forums’ to be as independent as
165
Section 165.
166
See Glaxo Welcome (Pty) Ltd v Terblanche 2001 (4) SA 891 (CAC) where Davis JP made it clear that the
exclusion of a right of recourse to court by the Competition Act does not violate s 34, because the Act provides
that the Tribunal should resolve competition law disputes.
167
The same goes for a decision on the validity of the imposition of a fine, if non-payment of the fine
constitutes a criminal offence that may be punished with a sentence of imprisonment. A court must be allowed to
determine whether the offender’s conduct was of a nature that it could be fined in the first place. The court’s
enquiry may not be restricted to the issue of whether the offender has paid the fine.
168
Note 4 above.
169
Ibid [74] (Ackermann J), [174] (Sachs J). This was a ‘compromise solution’ adopted by five justices.
O’Regan J and Mokgoro J held that only ‘a court’ may order detention. Didcott J and Kriegler J held that, in
certain circumstances such as those of the case, a member of the executive may order detention.
170
Ibid [113] and [121], where Didcott J emphasised expertise and speed in the administration of estates in
reaching the conclusion that officials from the Master’s Office, and not only Magistrates, may imprison
recalcitrant witnesses at creditors’ meetings.
732
courts. Textually, the Constitution does not differentiate between the type of
independence and impartiality required of courts and that required of other tribunals and
forums. Section 165(2) of the Constitution requires the courts to be independent and
impartial. Section 34 requires the same of courts and of tribunals and forums involved in
the settling of legal disputes. The difference between the two provisions has to do with
the structure of the Constitution: s 165(2) is not part of the Bill of Rights and is therefore
not subject to the general limitation clause. As far as courts are concerned, a lack of
independence and impartiality will therefore be fatal in every case.
The reason for this difference is that the degree of independence required will depend
on the nature of the judicial function performed. Since courts perform a variety of
judicial functions, including depriving individuals of freedom, they must comply with
the highest standards of judicial independence. In the case of specialised tribunals or
forums, s 36 will permit deviations from the standard of impartiality and indepen-
dence.171
The independence of the courts is further underpinned by the doctrine of separation of
powers which was discussed in Chapter 1 above.172 An important purpose of the
doctrine is to ensure that the courts, which are responsible for testing the
constitutionality of legislative and executive action against the Bill of Rights, are
independent and are seen to be independent.
The test for determining whether the Constitution’s criteria for independence are met
is whether, ‘from the objective standpoint of the reasonable and informed person, [the
court will] be perceived as enjoying the essential conditions for independence’.173 This
test is objective and stresses the importance of the public perception of independence,
which is as relevant to the enquiry as factual independence. Impartiality, on the other
hand, refers to a state of mind or attitude of the tribunal in relation to the issues and the
parties in a particular case and connotes absence of bias. As both independence and
impartiality are fundamental to individual and public confidence in the administration of
justice, it is also important to ask whether the tribunal may be reasonably perceived to be
independent and impartial.174
In SARFU, the Constitutional Court elaborated on its approach to impartiality in the
context of an application for the recusal of Constitutional Court judges. The approach is
objective and the onus of establishing it rests upon the applicant.175 The question is
171
This was recognised by Conradie J in Financial Services Board v Pension Fund 1999 (1) SA 167 (C)
174F–G: ‘There are undoubtedly degrees of independence. Not every tribunal can be as completely independent
as a court of law is expected to be. The independence of courts of law and of administrative tribunals cannot be
measured by the same standard.’
172
South African Association of Personal Injury Lawyers v Heath 2001 (1) SA 883 (CC) [25]–[26]. See the
discussion of this case further below. The court held that certain executive functions performed by a High Court
judge compromised the independence of the judiciary.
173
Van Rooyen v S (General Council of the Bar of South Africa Intervening) 2002 (5) SA 246 (CC) [32], citing
R v Généreux (1992) 88 DLR (4th) 110 (SCC).
174
Ibid [33]. See also Financial Services Board (note 171 above) 175D–E: ‘the test for [institutional bias is
whether] a fully informed person would harbour a reasonable apprehension of bias in a substantial number of
cases’. The court also stated that, although independence and impartiality are distinct concepts, they are closely
related. Individual and structural independence are desirable in order to promote faith in the impartiality of a
tribunal.
175
President of the Republic of South Africa v South African Rugby Football Union 1999 (4) SA 147 (CC)
[48]. The reason why the applicant bears the burden is because it is presumed that judicial officers are impartial.
To dislodge the presumption requires cogent or convincing evidence. See SA Commercial Catering & Allied
Workers Union v I & J Ltd 2000 (3) SA 705 (CC) [12].
733
whether a reasonable, objective and informed person would on the correct facts
reasonably apprehend that the judge has not or will not bring an impartial mind to bear
on the adjudication of the case—that is, a mind open to persuasion by the evidence and
the submissions of counsel.176
The reasonableness of the apprehension must be assessed in the light of the oath of office
taken by judges to administer justice without fear or favour; and their ability to carry out that
oath by reason of their training and experience. It must be assumed that they can disabuse
their minds of any irrelevant personal beliefs or predispositions. They must take into account
the fact that they have a duty to sit in any case in which they are not obliged to recuse
themselves. At the same time, it must never be forgotten that an impartial judge is a
fundamental prerequisite for a fair trial and a judicial officer should recuse herself or himself
if there are reasonable grounds on the part of a litigant for apprehending that the judicial
officer, for whatever reasons, was not or will not be impartial.177
The court added that, in the case of multi-member courts such as the Constitutional
Court, if one judge incorrectly declines a recusal application, that decision could fatally
contaminate the decision of the entire court. The other members of the court may also
have a duty to refuse to sit with such a judge.178 However, the court was less clear on
how to determine whether a judge is biased in such a situation. Presumably the judges
must first consider their position individually and their conclusions must then be
sanctioned by the majority of the court.179
The Constitutional Court held in a later decision that the presumption of judicial
impartiality will generally apply with added force in respect of appellate courts,
where more experienced judicial officers are asked to evaluate a written record, and
where the collegial nature of the bench reduces the leeway for the operation of
personal attributes and dispositions.180
176
SARFU (note 175 above) [48]. As noted in SACCAWU (note 175 above) [14] there is a double requirement
of reasonableness: not only must the person apprehending bias be reasonable, but the apprehension itself must in
the circumstances be reasonable. The double requirement underscores the weight of the burden resting on a
person alleging bias. Cameron AJ went on to hold that while it is important that ill-founded and misdirected
challenges should be discouraged, the vulnerability of the bench (during the transition) also underscores the
‘pre-eminent value on public confidence in impartial adjudication. In striking the correct balance, it is as wrong
to yield to a tenuous or frivolous objection as it is to ignore an objection of substance’. In this case, it was
considered to be constitutionally permissible for judges to decide an appeal even though they had made factual
findings against the appellants in an earlier appeal on a related incident. Mokgoro J and Madala J dissented in
SACCAWU and held that more emphasis should be placed on the perceptions of the lay litigant.
177
SARFU (note 175 above) [48]. At [37]–[38], the court expressed a preference for the term ‘reasonable
apprehension’ of bias or partiality, rather than ‘suspicion’. The latter was rejected because of its ‘inappropriate
connotations’. As for what the court terms ‘personal beliefs or predispositions’, at [42]–[43] the court stressed
that ‘absolute neutrality’ can never be achieved and that it is appropriate that judges bring their life experiences to
the adjudication process. One of the court’s examples is that a judge who is a member of the SPCA should not be
disqualified from adjudicating a matter involving cruelty to animals. See also [70]: ‘It has never been seriously
suggested that judges do not have political preferences or views on law and society. Indeed, a judge who is so
remote from the world that she or he has no such views would hardly qualify to sit as a judge’. But the court
stressed that all judges are expected to put any party political loyalties behind them on their appointment and it is
generally accepted that they do so [75].
178
Ibid [32].
179
Ibid [34].
180
SACCAWU (note 175 above) [41]–[42]. Sager v Smith 2001 (3) SA 1004 (SCA) is an application of the
Constitutional Court’s ‘reasonable apprehension of bias’ test to an application for the recusal of a magistrate on
the ground that he had prejudged a case. The court held that in the application of the test, two premises are
important. The basic starting point of the enquiry is that the court presumes that judicial officers are impartial in
adjudicating disputes. The onus of rebutting that presumption falls on the applicant for recusal. The second
premise is that absolute impartiality is an unattainable ideal. It is quite normal for a presiding officer to form a
734
It is the duty of the Judicial Services Commission to investigate allegations of

misconduct by judges that may threaten the independence, impartiality, dignity,
accessibility and effectiveness of the courts.181
(i) Judicial commissions

The Commissions Act 8 of 1947 and s 84 of the Constitution provide for the President to
appoint commissions of enquiry. Having a judge chair a commission of enquiry almost
invariably requires that judge to perform executive functions. This undermines the
independence of the judiciary by creating the potential for the abuse of power when an
investigator judge is cloaked with powers such as the power to order the detention of
uncooperative witnesses or the power to issue search warrants. Usually these powers
vest in an independent adjudicator who exercises them under the oversight of a judge.
Placing both the power and the oversight role in the same official results in an excessive
concentration of power in that one official, and violates the doctrine of separation of
powers.182
In South African Association of Personal Injury Lawyers v Heath the Constitutional
Court held that when determining whether it is permissible to assign non-judicial
functions to a judge one should consider whether the performance of that particular
function:
(a) is more usual or appropriate to another branch of government;
(b) is subject to executive control or direction;
(c) requires the judge to exercise a discretion and make decisions on the grounds of
policy rather than law;
(d) creates the risk of judicial entanglement in matters of political controversy;
(e) involves the judge in the process of law enforcement; or
(f) will occupy the judge to such an extent that he or she is no longer able to
perform their normal judicial functions.183
To this the court added the general principle, derived from US jurisprudence, that the
judiciary should only be required to perform non-adjudicatory functions ‘that do not
trench upon the prerogative of another branch and that are appropriate to the central
mission of the judiciary’.184
These factors should be given weight appropriate to the nature of the function that
the judge is required to perform, and the need for that function to be performed by a
person of undoubted independence and integrity. Ultimately, the question is whether
the function is incompatible with the judicial office and if so, whether there are other
considerations that will prevent harm to the institution of the judiciary and ensure
that the independence of the judiciary is maintained.185
prima facie view on the issues during the hearing of a matter but this is not necessarily an indication of bias. The
mere apprehension (even if strongly and honestly felt) by a litigant that a judicial officer will be biased is not
enough to require recusal as the test is an objective one. See, also, the application of the test in S v Shackell 2001
(4) SA 1 (SCA).
181
Freedom Under Law v Acting Chairperson, Judicial Service Commission 2011 (3) SA 549 (SCA) [49].
182
To a lesser extent it also impacts on the public’s perceptions about the independence of the judiciary.
183
South African Association of Personal Injury Lawyers note 172 above [29] (footnotes omitted).
184
Ibid, citing Blackmun J in Mistretta v United States 488 US 361 (1989) 388.
185
Ibid [30]–[31].
735
The Constitutional Court held that, in appropriate circumstances, judicial officers

can preside over commissions of enquiry. Much depends on the subject matter of the
commission and the legislation regulating the issue of warrants.186 In Heath the
Court held that the functions that a high court judge was required to perform in
terms of the Special Investigating Units and Special Tribunals Act 74 of 1996 were
far removed from the central mission of the judiciary. These functions were
investigations with an intrusive quality, involving litigation on behalf of the state and
requiring the judge to be appointed for an indefinite period of time.187 The
appointment of Judge Heath as the head of the Heath Special Investigating Unit was
therefore declared to be invalid.
(ii) Magistrates’ courts

Subject to legislative amendment and the Constitution, every court, including courts of
traditional leaders, which was in existence when the 1996 Constitution was passed,
continues to function in terms of the legislation applicable to it, and judicial officers
continue to hold office.188 The independence and impartiality of both traditional courts
and magistrates’ courts have been challenged in litigation.
The institutional independence of the magistrates was comprehensively dealt with by
the Constitutional Court in Van Rooyen v S.189 In three cases, the validity of criminal
proceedings in the magistrates court had been challenged on the basis that the court
lacked the institutional independence required by the Constitution.190 In confirmation
proceedings, the Constitutional Court considered the changes made since the
commencement of the interim Constitution to improve the independence of the
magistracy, concluding that, for the most part, the magistrates and magistrates’ courts
had sufficient independence to comply with the Constitution.
Before 1993, magistrates were public service employees with none of the
constitutional guarantees of security of tenure that judges enjoyed. The Minister of
Justice appointed them from the ranks of the public prosecutors. They were accordingly
thought to be too closely associated with the executive to be independent from it. The
Magistrates Act 90 of 1993 had, however, removed magistrates from the public service
and established a Magistrates Commission that regulated the appointment, promotion,
remuneration, conditions of service and removal of magistrates. Important changes were
made to the composition of the Commission in 1996.
The Magistrates Commission, like the Judicial Service Commission, is made up of
both political appointees and representatives of the legal profession, including judges
and magistrates.191 Appointments of magistrates by the Minister of Justice must be
made in consultation with the Commission.192
186
Ibid [34].
187
Ibid [45].
188
Item 16(1) of Schedule 6.
189
Van Rooyen (note 173 above).
190
Van Rooyen v S 2001 (4) SA 396 (T) (declaring invalid various provisions of the Magistrates’ Courts Act 32
of 1994, the Magistrates Act 90 of 1993 and regulations made in terms of the Magistrates Act).
191
Following the changes brought about by the Magistrates Amendment Act 36 of 1996, membership of the
Commission was increased from the previous 10 to 27. As the Constitutional Court described it ‘[o]f those ten, all
but two were designated by judicial officers or the legal profession. The only members who were not in this
category, were the officer of the Department of Justice designated by the Minister, and the Chief Director of the
Justice College. The changes introduced in 1996 made provision for 13 members to be designated by the
National Assembly, the National Council of Provinces and the Cabinet; for six magistrates, not five; for two
736
The High Court had held in Van Rooyen that the Commission was not independent of
the executive. The changes to the composition of the Commission in 1996 had, in the
High Court’s words, made the magistracy, in the eyes of objective observers, look like
the ‘personal fiefdom’ of the Minister of Justice.193 The Constitutional Court disagreed.
It held that the changes were made so that the Magistrates Commission would comport
to the model of the Judicial Services Commission.194 The constitutionally specified
model of the Judicial Service Commission gave support to the Constitutional Court’s
conclusion that even though ‘the executive has a strong influence in the appointment of
the members of the Magistrates Commission this did not mean that magistrates’ courts
lack institutional independence’.195
There was, however, a problem with the provisions of the Magistrates’ Courts Act
providing for the appointment of acting and temporary magistrates and s 9(4) of the Act
was declared invalid.196 This section allowed for the appointment of someone who was
not already a magistrate to act as one and for such temporary magistrates to be appointed
on a basis that could be summarily terminated by the state. It was held that an
‘appointment to hold office at the discretion of “the state” is clearly inconsistent with
security of tenure that is an essential element of judicial independence’ as was a power
‘to appoint a person who is not a magistrate and who does not have security of tenure to
hear a particular case’.197
In addition, certain of the provisions of s 13 of the Magistrates Act dealing with the
impeachment of magistrates were declared invalid. As amended subsequent to the
decision, the Act now provides that, other than retirement or resignation, removal of a
magistrate from office may only be effected on the recommendation of the Commission
on grounds of misconduct, ill-health or incapacity. If such a recommendation to remove
is made, a report with reasons must be submitted by the Minister of Justice to Parliament
within 14 days. Parliament may by resolution reverse the decision of the Magistrates
Commission.198
advocates, not one; and for two attorneys, not one. The 1996 amendment also changed the basis of designation,
vesting the power of appointment in respect of three of the magistrates, and all of the representatives of the legal
profession and teachers of law, in the executive after consultation with the professions concerned’ (Van Rooyen
(note 173 above) [45].
192
In terms of s 10 of the Magistrates Act, the Minister of Justice is required to appoint magistrates in
consultation with the Magistrates Commission. According to Van Rooyen (note 173 above) [103], this means that
the Minister ‘must consult the Commission before making an appointment, but is not bound by its
recommendation’.
193
Note 190 above 455F.
194
195
Ibid [71].
196
Ibid [273(4)]. The provision has since been amended by the Judicial Officers (Amendment of Conditions of
Service) Act 28 of 2003.
197
Ibid [247], [248]. This finding was usefully clarified by the Supreme Court of Appeal in De Kock NO v Van
Rooyen 2005 (1) SA 1 (SCA). Cameron JA held that the Constitutional Court ‘did not find that the appointment
of acting magistrates was in principle unconstitutional. Nor did it find that the re-appointment of a retired
magistrate in an acting capacity was unacceptable. It did not find that a retired magistrate (or any competent
person) could not be appointed to act generally in a particular court—provided such an appointment was for a
fixed or determinate period. The court did not disapprove the practice of appointing permanent magistrates
temporarily to another division to hear a particular case. As long as the temporary appointee (or transferee) has
security of tenure, this is not constitutionally objectionable’ [11].
198
Parliament may no longer by resolution remove a magistrate on its own accord. Provisions of the Act
allowing this were declared invalid in Van Rooyen (note 173 above) [186] and were removed by the 2003
amendment.
737
A second concern about the position of magistrates is that they are charged with
numerous administrative functions. In order to understand why this is so, it must be
remembered that, until recently, magistrates were regarded as civil servants. As
members of the executive, there was no reason why they should not be burdened with
administrative functions. In Van Rooyen, the Constitutional Court held that, while
‘[i]deally, magistrates should not be required to perform administrative duties unrelated
to their functions as judicial officers’, there are a number of statutes that impose such
duties on them.199 In addition, in terms of s 14 of the Magistrates Act a magistrate is
obliged to fulfil the duties imposed on him or her by the Minister, who must consult with
the Magistrates Commission before imposing such duties. According to the
Constitutional Court, ‘magistrates can have only those powers vested in them by law,
and . . . it is not consistent with institutional independence to permit the Minister to
assign judicial powers to magistrates in addition to those that are ordinarily vested in
them’. The words empowering the Minister to assign duties to magistrates were
therefore declared invalid and struck out of the Act.200
(iii) Courts of traditional leaders

In the First Certification judgment, the Constitutional Court held that s 166(e) of the
Constitution, which refers to ‘any other court established or recognised by an Act of
Parliament’, includes the approximately 1 500 traditional courts recognised in terms of
the Black Administration Act 38 of 1927.201 This means that the independence and
impartiality of these courts must be assessed in terms of s 165(2) of the Constitution. In
Bangindawo v Head of the Nyanda Regional Authority202 Madlanga J held that the
conception of judicial independence and impartiality in respect of traditional courts is
not the same as in the western law setting. There was no separation of powers between
judicial, executive and legislative power; all of which vest in the chiefs or king:
The believers in and adherents of African customary law believe in the impartiality of the
chief or king when he exercises his judicial function. The imposition of anything contrary to
this outlook would strike at the very heart of the African customary legal system, especially
the judicial facet thereof.203
At the time of writing, a Traditional Courts Bill, which is intended to repeal ss 12 and 20
and the Third Schedule of the Black Administration Act and replace the traditional
courts which operated in terms of those provisions of the Black Administration Act, was
199
Van Rooyen (note 173 above) [231]–[232]. The examples listed at fn 78 of the judgment are: the
administration of estates; receiving applications for advances against the security of mortgage; issuing temporary
liquor licences or licences for the exhibition and training of performing animals; and reporting to the
Director-General of Health on visits to patients detained in private dwellings on grounds of mental health.
200
Ibid [230].
201
of South Africa, 1996 1996 (4) SA 744 (CC) [199]. In terms of s 12(1) of the Black Administration Act, chiefs’
and headmen’s courts may hear and determine ‘civil claims arising out of Black law and custom’ brought by
‘Blacks against Blacks resident within [their] area of jurisdiction’. In terms of s 20(1)(a) traditional leaders may
try and punish minor offences in common, customary and statutory law, provided the accused was a black person
or the offence was suffered by a black person.
202
Bangindawo v Head of the Nyanda Regional Authority 1998 (3) BCLR 314 (Tk).
203
Ibid 327D. If the whole of s 35 does not apply in proceedings before traditional courts, it is difficult to see
how such courts can be afforded criminal jurisdiction. The decision also cannot be reconciled with the
Constitutional Court’s decision in De Lange (note 4 above).
738
Access to Courts 31.4–31.5
before parliament.204 As was held in Mhlekwa v Head of the Western Tembuland

Regional Authority, traditional courts cannot be considered to be ‘independent and
impartial’ within the meaning of the words in s 165(2).205 It is therefore unfortunate that
they form part of the courts listed in s 166(e). They should preferably be considered
along with the ‘other tribunals and forums’ provided for in s 34 as this would permit a
limitation of the independence and impartiality requirements.
(iv) Other tribunals and forums

Some tribunals are part of the executive, while others cannot be regarded as
‘structurally’ independent from the executive in the sense described above. The
Constitution does not require tribunals and forums to be independent in the same way as
courts.206 The requisite degree of independence depends on the nature of the judicial
function performed by such tribunal or forum.
As far as impartiality is concerned, there is much less reason to differentiate between
the courts and other tribunals and forums. The specialised nature of some tribunals can
result in them becoming identified with the policies and interests in the area that they
regulate. They may even make the rules they apply or oversee the enforcement of their
findings. These factors do not however in themselves make such tribunals biased.207 As
was stated above, the test is whether a fully informed person would harbour a reasonable
apprehension of bias.
31.5 FAIR PUBLIC HEARING
(a) Fairness
In Bernstein v Bester NO, the Constitutional Court held that it was doubtful that s 34’s
predecessor—s 22 of the interim Constitution—was a ‘fair trial right’ for civil
proceedings208 as s 22 contained no reference to fairness. Section 34 refers expressly to
a right to have justiciable disputes settled in a ‘fair public hearing’.
In De Beer209 the Constitutional Court said the following about the purpose of the fair
hearing component of s 34:
This section 34 fair hearing right affirms the rule of law which is a founding value of our
Constitution. The right to a fair hearing before a court lies at the heart of the rule of law. A
fair hearing before a court as a prerequisite to an order being made against anyone is
fundamental to a just and credible legal order. Courts in our country are obliged to ensure
that the proceedings before them are always fair. Since procedures that would render the
204
The Law Reform Commission recommended the retention of traditional courts, subject to a number of
reforms to their jurisdiction and procedures. The Commission recommends tackling the problem of the lack of
independence by, inter alia, depriving these courts of much (but not all) their criminal jurisdiction. SA Law
Reform Commission Report on Traditional Courts and the Judicial Function of Traditional Leaders (2003). The
report does not recommend that traditional courts should have the power to impose sentences of imprisonment.
205
Mhlekwa v Head of the Western Tembuland Regional Authority 2001 (1) SA 574 (Tk). The Court was
concerned about the arbitrary selection of individuals subject to traditional court jurisdiction, the appointment of
officers to traditional courts and the lack of legal representation, and other procedural deficiencies.
206
Freedom of Expression Institute v President of the Ordinary Court Martial NO 1999 (2) SA 471 (C) [24].
207
Albert and Le Compte v Belgium 5 EHRR 533 (1983) (presence of physicians on tribunal for medical
profession does not make it biased). See also H v Belgium 10 EHRR 339 (1987); Lanborger v Sweden 12 EHRR
416 (1989).
208
Bernstein (note 1 above) [106].
209
De Beer NO (note 1 above).
739
hearing unfair are inconsistent with the Constitution courts must interpret legislation and
rules of court, where it is reasonably possible to do so, in a way that would render the
proceedings fair.210
An important aspect of fairness in civil proceedings is audi alteram partem: ‘court
orders should not be made without affording the other side a reasonable opportunity to
state their case’.211 At issue in De Beer, was the extent to which a 1976 provincial
ordinance that contained a procedure for the collection of rates in arrears complied with
these basic requirements. The procedure in essence permitted a court to summarily order
that rateable property be sold by public auction once a local council proved to the court
that it had served certain specified notices stating that rates were owing on the property,
demanding payment of the arrears and stating that it was the council’s intention to apply
for the sale of the property if the arrears remained unpaid.212
It was alleged that this procedure infringed s 34 because it denied those affected
by it a fair hearing. It dispensed with service as ordinarily required by the Uniform
Rules of Court and permitted an order for the sale in execution of immovable
property without any prior sale of movables being required and without any writ of
execution being served on the owner before the sale of that property.
The Constitutional Court held that it was the incorrect approach to compare the
collection procedure in the ordinance with that provided for in the Uniform Rules.
Rather, what had to be considered was whether the ordinance infringed the fairness
requirement in s 34.213
It was held that a fair hearing requires, in the first place, reasonable notice of the
hearing to be given to an affected person. Reasonableness had to be assessed on the
circumstances of the case in the light of the purpose of the notice requirement,
namely to bring relevant information about the claim and the hearing to the attention
of anyone affected by it.214 Moreover, the court held:
The hearing itself must also be fair. It can be fair in relation to notice only if the court has a
discretion not to grant the order or to require further notice to be given if fairness demands
that it be done. The court must, in addition, have the power to investigate whether it is
reasonably possible to bring the notice to the attention of the affected person if it is clear that
fairness requires an investigation of that kind.215
Other factors relevant to the assessment of the reasonableness of notice were the nature
of the order that could be made as a result of the hearing, and the gravity of its
consequences.216
It was held that the collection procedure provided reasonable notice to persons
affected.217 The contention that the hearing was unfair because it permitted the sale
in execution of immovable property without any requirement that movables must be
210
211
Ibid.
212
Ibid [5], [7].
213
Ibid [12].
214
Ibid [13].
215
Ibid [14].
216
Ibid [15].
217
Ibid [26].
740
sold first was rejected as being an argument about the substantive fairness of the law
and unrelated to the constitutional requirement of procedural fairness.218
Ex parte proceedings would be in conflict with the audi principle without the
procedural device of the rule nisi. The rule nisi was developed by the courts to
reconcile the audi principle with the need, in certain circumstance, to grant interim
relief to an applicant without hearing from the respondent. The absence of express
provision for a court to grant a rule nisi was the basis for the High Court’s
declaration of invalidity of s 38 of the Prevention of Organised Crime Act 121 of
1998 in Mohamed NO v National Director of Public Prosecutions.219 The section
allows the National Director, by way of an ex parte application, to apply to a High
Court for a ‘preservation of property’ order. The order prohibits any person, subject
to such conditions and exceptions as may be specified in the order, from dealing in
any manner with any property. Within 90 days of the grant of the preservation order
the National Director must apply for the forfeiture of the property. At that stage,
affected parties are entitled to a full hearing to determine whether the property
should be forfeited or not.
On the High Court’s interpretation of the provision, proceedings had to be
conducted ex parte (there was no option of allowing the affected person to
participate) and there was nothing authorising the issue of a rule nisi to allow the
victim of a preservation order to appear on a return day and make a case that the
order should be rescinded or varied.
On appeal, the Constitutional Court approved the High Court’s holding that a rule
nisi procedure cured the unfairness of an interim order granted ex parte.220 However,
it differed with the High Court on the interpretation of s 38 of the Act. Since a fair
hearing entails audi it follows that ‘where no express reference is made to the audi
principle, or its exclusion, the question to be asked is not whether the audi principle
can be implied in the section, but rather whether it has been excluded from the
section by clear necessary implication, or whether there are exceptional
circumstances which would justify a court not giving effect to it’.221 Courts have an
inherent power to grant a rule nisi together with an interim order pending its return
day, in order to prevent the harm that might result if notice were given, and it was
not necessary for the legislature to have expressly inserted a rule nisi provision in
the Act. In the result:
there is only one proper construction of section 38, namely, that the audi rule has not been
excluded and that the principles relating to the issuing of rules nisi and the making of interim
preservation orders by the High Courts . . . are applicable to the section 38 procedures when
the National Director applies ex parte, as he is entitled to do in all cases, for relief under
section 38.222
Section 34 does not explicitly confer a right to legal representation. If the right to legal
representation is implied by the section223 a denial of that right to legal representation
218
Ibid [27].
219
Mohamed NO v National Director of Public Prosecutions 2002 (4) SA 366 (W).
220
National Director of Public Prosecutions v Mohamed NO 2003 (4) SA 1 (CC) [27]–[32], [52]. The court’s
discussion also encompasses a modern variation of the rule: the Anton Piller order.
221
Ibid [38].
222
Ibid [51].
223
This was the view of Madlanga J in Bangindawo (note 202 above) 331D.
741
and choice of legal representation will have to be justified as a limitation of the right.
This is conceivable in proceedings which are conducted simply in order to facilitate
access to justice by saving costs and time.224 In the case of the Small Claims Court, for
example, the recognition of a right to legal representation would undermine the purpose
of the Act. Much will therefore depend on the circumstances.225
Where a legal representative is appointed, the court must at all times receive
representation from that legal representative before it makes any order that will or
may have an impact on the party’s rights.226 It has also been held in the context of
criminal appeals that restricting a person to written heads of argument in lieu of oral
argument unjustifiably infringes the right to a fair hearing in s 34.227
The fairness dimension of s 34 has been used to justify a more lenient approach to
the interpretation of ‘sufficient cause’ in the context of rescission applications228 and
to condone the filing of a notice of intention to defend which was not signed by an
attorney but by an employee of a juristic person on behalf of that juristic person.229
(b) Public hearing

Section 34 guarantees a fair and public hearing.230 Ordinarily court proceedings and
court records are to be open to the public. South African law recognises several
exceptions to the rule that court proceedings should be held in public, such as when
children are involved, or in taxation hearings. These exceptions are infringements of
s 34 and will therefore have to be justified as limitations of the right to a public hearing
in terms of s 36.231 This is in line with the principles of transparency, accountability and
openness that inform our Constitution and its entrenchment of democracy and the rule of
law.
224
See Netherburn Engineering CC t/a Netherburn Ceramics v Mudau 2004 (3) BCLR 317 (LC) 330–331
(legal representation appropriate in some tribunals and not others; ruling by CCMA that party in arbitration
proceedings may not have legal representation not an infringement of s 34).
225
An entitlement to legal representation depends on whether it is required to achieve fairness in the
circumstances of the case. See Hamata v Chairperson, Peninsula Technikon Internal Disciplinary Committee
2002 (5) SA 449 (SCA) [11]: ‘There has always been a marked and understandable reluctance on the part of both
legislators and the courts to embrace the proposition that the right to legal representation of one’s choice is
always a sine qua non of procedurally fair administrative proceedings. However, it is equally true that with the
passage of the years there has been growing acceptance of the view that there will be cases in which legal
representation may be essential to a procedurally fair administrative proceeding’. See, further, Chapter 29 below.
226
Rectron (Pty) Ltd v Kara Smit Rekenaardienste CC [2005] ZAGPHC 48, unreported [20].
227
Shinga v The State 2007 (2) SACR 28 (CC). See also Brown v Papadakis NO [2011] ZAWCHC 150,
unreported, holding that Uniform Rule 48(6) which allows a review of taxation by a judge in chambers did not
infringe s 34.
228
Tower Construction CC v Van der Walt [2012] ZAWCHC 197, unreported [31]–[32].
229
Mittal Steel South Africa Limited t/a Vereeniging Steel v Pipechem CC 2008 (1) SA 640 (C) [28].
230
‘Public’ does not necessarily entail an oral hearing. See the views of the Human Rights Committee in RM
v Finland (Communication 301/88) (requirement in art 14 of the International Covenant on Civil and Political
Rights of a ‘fair and public hearing’ does not necessarily entail an oral hearing; appellate proceedings may take
place on the basis of written representations). See Sarah Joseph et al The International Covenant on Civil and
Political Rights (2000) 304. This ‘openness’ dimension of s 34 mirrors s 35(3)(c) of the Constitution which
entitles accused persons to receive public trials.
231
Section 6(1) of the European Convention on Human Rights provides useful guidance on acceptable
limitations of the publicity right. The public and press may be excluded from trials ‘in the interest of morals,
public order or national security in a democratic society, where the interests of juveniles or the protection of the
private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special
circumstances where publicity would prejudice the interests of justice’. In Phillips v National Director of Public
Prosecutions 2001 (4) SA 849 (W) Labe J held that the taking of photos by the respondents of the applicants may
have ‘cowed’ them but that their rights were not infringed as they were nonetheless free to decide whether they
742
In Independent Newspapers (Pty) Ltd v Minister for Intelligence Services the

Constitutional Court held that the media’s right to gain access to, observe and report on,
the administration of justice and the right to have access to papers and written arguments
which are an integral part of court proceedings flows from the right to open and public
justice and can be limited only in the interests of ensuring a fair trial.232 The court held
that:
Courts should in principle welcome public exposure of their work in the courtroom . . . The
foundational constitutional values of accountability, responsiveness and openness apply to
the functioning of the judiciary as much as to other branches of government. These values
underpin both the right to a fair trial and the right to a public hearing (ie the principle of open
courtrooms). The public is entitled to know exactly how the judiciary works and to be
reassured that it always functions within the terms of the law and according to
time-honoured standards of independence, integrity, impartiality and fairness.233
wanted to enter the court room. In Prinsloo v RCP Media Ltd t/a Rapport 2003 (4) SA 456 (T) Van der
Westhuizen J declined an application for an in camera hearing in a matter dealing with ‘intimate personal details’
(essentially, the sex lives of the applicants) holding that the constitutional requirements that court proceedings
were held in public ‘should not lightly be departed from’.
232
Independent Newspapers (Pty) Ltd v Minister for Intelligence Services 2008 (5) SA 31 (CC) [41].
233
Ibid, quoting SABC v National Director of Public Prosecutions 2007 (4) SA 97 (CC) [31]–[32].
743
Chapter Thirty-two
Arrested, Detained and Accused

Persons
by PJ Schwikkard*
32.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 747

32.2 The scope of section 35 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 748
(a) Arrested, detained and accused persons . . . . . . . . . . . . . . . . . . . . . . . . . . 748
(b) Criminal trial proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 750
32.3 The presumption of innocence and related rights . . . . . . . . . . . . . . . . . . . . . 753
(a) The presumption of innocence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 753
(i) Content and rationale. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 753
(ii) The scope of the presumption of innocence . . . . . . . . . . . . . . . . . 755
(iii) Reverse onus provisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 756
(b) The right to remain silent; the right not to testify during pro-
ceedings and the right not to give self-incriminating evidence . . . 758
(i) Content and rationale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 758
(ii) Plea proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 759
(iii) Negative inferences from silence . . . . . . . . . . . . . . . . . . . . . . . . . . . . 760
(iv) Discharge at the close of the state case. . . . . . . . . . . . . . . . . . . . . . 767
(c) The right not to be compelled to make any confession or
admission that could be used in evidence; the right not to be
compelled to give self-incriminating evidence and the right to
legal representation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 768
(i) The right to legal representation and the privilege against
self-incrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 769
(ii) Admissions and confessions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 772
(iii) Ascertainment of bodily features . . . . . . . . . . . . . . . . . . . . . . . . . . . . 773
32.4 An arrested and detained person’s right to be placed under judicial
authority and to be released from detention. . . . . . . . . . . . . . . . . . . . . . . . . . . 776
32.5 The right to humane conditions of detention. . . . . . . . . . . . . . . . . . . . . . . . . . 783
32.6 The right to information, time and facilities to prepare and present a
defence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 787
(a) The charge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 787
(b) Summary proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 787
(c) Adequate time and facilities to prepare a defence . . . . . . . . . . . . . . . . 788
(d) Access to information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 788
* Professor of Public Law, University of Cape Town.
744
Arrested, Detained and Accused Persons
(e) Presence of the accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 790

(f) Cross-examination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 790
(g) The right to adduce evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 794
32.7 The right to a public trial before an ordinary court . . . . . . . . . . . . . . . . . . . 795
(a) A public trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 795
(b) An ordinary court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 795
(c) Judicial bias . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 797
32.8 The right to have a trial begin and conclude without unreasonable
delay. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 798
32.9 The right to be tried and given information in a language that is
understood by the recipient . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 800
32.10 The principle of legality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 801
32.11 Double jeopardy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 801
32.12 The right to appeal or review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 802
32.13 Unconstitutionally obtained evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 805
(a) Scope of discretion and rationale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 805
(b) When will the admission of evidence render a trial unfair? . . . . . . 807
(c) When will the admission of evidence be otherwise detrimental to
the administration of justice? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 809
(d) Entrapment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 811
(e) Trial-within-a-trial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 811
Arrested, detained and accused persons

35. (1) Everyone who is arrested for allegedly committing an offence
has the right—
(a) to remain silent;
(b) to be informed promptly—
(i) of the right to remain silent; and
(ii) of the consequences of not remaining silent;
(c) not to be compelled to make any confession or admission that
could be used in evidence against that person;
(d) to be brought before a court as soon as reasonably possible, but
not later than—
(i) 48 hours after the arrest; or
(ii) the end of the first court day after the expiry of the 48 hours, if
the 48 hours expire outside ordinary court hours or on a day
which is not an ordinary court day;
(e) at the first court appearance after being arrested, to be charged or
to be informed of the reason for the detention to continue, or to be
released; and
(f) to be released from detention if the interests of justice permit,
subject to reasonable conditions.
745
(2) Everyone who is detained, including every sentenced prisoner,

has the right—
(a) to be informed promptly of the reason for being detained;
(b) to choose, and to consult with, a legal practitioner, and to be
informed of this right promptly;
(c) to have a legal practitioner assigned to the detained person by the
state and at state expense, if substantial injustice would otherwise
result, and to be informed of this right promptly;
(d) to challenge the lawfulness of the detention in person before a
court and, if the detention is unlawful, to be released;
(e) to conditions of detention that are consistent with human dignity,
including at least exercise and the provision, at state expense, of
adequate accommodation, nutrition, reading material and medical
treatment; and
(f) to communicate with, and be visited by, that person’s—
(i) spouse or partner;
(ii) next of kin;
(iii) chosen religious counsellor; and
(iv) chosen medical practitioner.
(3) Every accused person has a right to a fair trial, which includes
the right—
(a) to be informed of the charge with sufficient detail to answer it;
(b) to have adequate time and facilities to prepare a defence;
(c) to a public trial before an ordinary court;
(d) to have their trial begin and conclude without unreasonable delay;
(e) to be present when being tried;
(f) to choose, and be represented by, a legal practitioner, and to be
informed of this right promptly;
(g) to have a legal practitioner assigned to the accused person by the
state and at state expense, if substantial injustice would otherwise
result, and to be informed of this right promptly;
(h) to be presumed innocent, to remain silent, and not to testify during
the proceedings;
(i) to adduce and challenge evidence;
(j) not to be compelled to give self-incriminating evidence;
(k) to be tried in a language that the accused person understands or,
if that is not practicable, to have the proceedings interpreted in
that language;
(l) not to be convicted for an act or omission that was not an offence
under either national or international law at the time it was
committed or omitted;
746
Arrested, Detained and Accused Persons 32.1
(m) not to be tried for an offence in respect of an act or omission for

which that person has previously been either acquitted or
convicted;
(n) to the benefit of the least severe of the prescribed punishments if
the prescribed punishment for the offence has been changed
between the time that the offence was committed and the time of
sentencing; and
(o) of appeal to, or review by, a higher court.
(4) Whenever this section requires information to be given to a
person, that information must be given in a language that the person
understands.
(5) Evidence obtained in a manner that violates any right in the Bill
of Rights must be excluded if the admission of that evidence would
render the trial unfair or otherwise be detrimental to the administration
of justice.
32.1 INTRODUCTION
The influence of the Bill of Rights on the criminal justice system has been significant. It
provides grounds for reviewing both the substantive and procedural content of the
intricate web of laws shaping criminal justice as well as providing remedies for breaches
of the Constitution. In doing so it has impacted on the content of the law in addition to
influencing the conduct of those who participate in the criminal justice system.
Section 35 applies specifically to arrested, detained and accused persons and this is
the narrow focus of this chapter. However, it should be clear from the preceding
chapters that there is a plethora of constitutionally entrenched rights that continue to
reshape the content and form of the criminal justice system. These include the rights to
equality,1 dignity,2 life,3 freedom and security of person,4 privacy,5 freedom of religion,6
freedom of expression,7 property,8 and access to information.9
1
See eg S v Ntuli 1996 (1) SA 1207 (CC); S v Rens 1996 (1) SA 1218 (CC); S v Jordan 2002 (2) SACR 499
(CC).
2
See eg S v Makwanyane 1995 (3) SA 391 (CC); S v Williams 1995 (3) SA 632 (CC).
3
See eg S v Makwanyane (note 2 above).
4
See eg Nel v Le Roux NO 1996 (3) SA 526 (CC); S v Makwanyane (note 2 above); S v Williams (note 2
above); S v Thebus 2003 (2) SACR 319 (CC).
5
See eg Case v Minister of Safety and Security 1996 (3) SA 617 (CC); National Coalition for Gay and Lesbian
Equality v Minister of Justice 1999 (1) SA 6 (CC).
6
See eg S v Lawrence 1997 (4) SA 1176 (CC); Prince v President of the Law Society of the Cape of Good
Hope 2002 (2) SA 794 (CC).
7
See eg Case v Minister of Safety and Security 1996 (3) SA 617 (CC); South African National Defence Force
Union v Minister of Defence 1999 (4) SA 469 (CC); Phillips v Director of Public Prosecutions, WLD 2003 (3)
SA 345 (CC).
8
See eg Director of Public Prosecutions: Cape of Good Hope v Bathgate 2000 (2) SA 535 (C); National
Director of Public Prosecutions v Alexander 2001 (2) SACR 1 (T); Mohamed v National Director of Public
Prosecutions 2002 (2) SACR 93 (W).
9
See eg Els v Minister of Safety and Security 1998 (2) SACR 93 (NC); Shabalala and Others v
Attorney-General of Transvaal and Another 1995 (2) SACR 761 (CC).
747
32.2 THE SCOPE OF SECTION 35
(a) Arrested, detained and accused persons

Section 35 of the Constitution specifies particular sets of rights in respect of three
categories of people. Section 35(1) applies to arrested persons, s 35(2) to detained
persons and s 35(3) to accused persons. Section 35(4) applies to arrested, detained and
accused persons, however, it is arguable that s 35(5) is not confined to these three
groups.10
To determine the scope of s 35 it is necessary to reach an understanding of what
constitutes an arrested, detained or accused person. Unfortunately, there are no
convenient statutory definitions.
In terms of s 39(1) of the Criminal Procedure Act 51 of 1977 ‘[a]n arrest shall be
effected with or without a warrant and, unless the person to be arrested submits to
custody, by actually touching his body or, if the circumstances so require, by forcibly
confining his body’. In terms of s 39(3) of the Criminal Procedure Act ‘[t]he effect of an
arrest shall be that the person arrested shall be in lawful custody and that he shall be
detained in custody until he is lawfully discharged or released from custody.’ Section
35(1) of the Constitution specifically refers to accused persons arrested for allegedly
committing an offence; as this is generally speaking an underlying requirement for a
lawful arrest in terms of the Criminal Procedure Act 51 of 1977, s 35(1) rights will
accrue to a person arrested in terms of s 39 of the Criminal Procedure Act.11 It is also
apparent that an arrested person will also be a detained person and consequently the
rights specified in s 35(2) will also accrue to an arrested person. But a detained person
will not always be an arrested person. Since s 35(1) only applies to persons ‘arrested for
allegedly committing an offence’ a person who is detained for other purposes will not
fall to be an ‘arrested person’ for the purposes of s 35(1). If the definition of arrest or
detention is restricted to those who are in some way physically confined then the suspect
who has not been arrested is potentially in a very vulnerable position. As Satchwell J
noted in S v Sebejan:
The crux of the distinction between the arrested person and the suspect is that the latter does
not know without equivocation or ambiguity or at all that she is at risk of being charged. The
suspect may herself have an inkling that she is mistrusted by the investigating officer; she
may even have been told that she is at some risk of being arrested; but the suspect has not
been placed on terms. Indeed the suspect may have no qualms or concerns whatsoever and
may therefore continue to operate in a state of ignorance—ignorance that she is mistrusted,
may be under surveillance, that the investigator is enquiring into her actions and behaviour,
that there may be an attempt to develop sufficient evidence against her. In this situation there
is no bliss in ignorance. The suspect is in jeopardy of committing some careless or unwise
act or uttering some incautious and potentially incriminating words which would
subsequently be used against her in a trial.12
One way of protecting suspects is to adopt the approach endorsed by Satchwell J in S v
Sebejan, namely, to acknowledge that the right to a fair trial does not begin in court but
10
See discussion of s 35(5) below.
11
See generally E du Toit, A Paizes, F de Jager, A St Q Skeen, S van der Merwe Commentary on the Criminal
Procedure Act (1987) 5–1 to 5–2.
12
S v Sebejan 1997 (1) SACR 626 (W) 633g–h.
748
at the inception of the criminal process.13 In order to protect the accused’s fair trial right
against self-incrimination Satchwell J held (albeit obiter14) that a suspect was entitled to
the same warning as an arrested person.15 This approach was fully endorsed by Bozalek
J in S v Orrie16 who held that suspects must be advised of their status as suspects. The
court held17 that to extend constitutional pre-trial rights to the accused accorded with a
purposive approach to interpretation and the aspiration of substantive justice referred to
in S v Zuma.18 However, the High Courts have diverged on this point and in S v Langa19
the court held that s 25 of the interim Constitution did not apply to suspects.20 Pickering
J in S v Mthethwa21 similarly held that the rights of arrested, detained and accused
persons set out in s 35(1), (2) and (3) of the Constitution were irrelevant in respect of a
suspect. However, the court found that as the statement had been obtained in breach of
the Judges’ Rules22 the admission of the evidence would render the trial unfair and bring
the administration of justice into disrepute. On this ground the statement fell to be
excluded in terms of the court’s common law discretion to exclude evidence.23
In the absence of a Constitutional Court ruling there is much scope for argument.
Another possible approach would be to consider the ambit of detention. The concept
of ‘detention’ can be extended beyond physical incarceration. For example, the
Supreme Court of Canada has held24 that detention occurs not only when persons are
deprived of their liberty by physical constraint, but also ‘when a police officer or
other agent of the state assumes control over the movement of a person by demand
or direction which may have significant legal consequence and which prevents or
impedes access to counsel’.25 The Canadian Supreme Court has held that ‘the
necessary element of compulsion or coercion to constitute a detention may arise
from criminal liability for refusal to comply with a demand or direction, or from a
reasonable belief that one does not have a choice as to whether or not to comply’.26
In applying the Canadian interpretation of detention it would appear that suspects
who are questioned by the police in their homes will not be ‘detained’ and will not
be entitled to be advised of their right to legal representation, as the police have no
13
S v Sebejan (note 12 above) 635d. See also S v Mpetha (2) 1983 (1) SA 576 (C); S v Lwane 1966 (2) SA 433
(A); R v Kuzwayo 1949 (3) SA 761 (A); S v Dlamini 1973 (1) SA 144 (A); S v Agnew 1996 (2) SACR 535 (C); S v
Mathebula 1997 (1) SACR 10 (W). Cf S v Ngwenya 1998 (2) SACR 503 (W) in which Leveson J, referring to the
interim Constitution, held that the s 25(3) right to a fair trial did not include pre-trial procedures.
14
This line of reasoning did not assist the accused in Sebejan (note 12 above) as the court found that she had
not been a suspect at the time of making the statement in question.
15
S v Sebejan (note 12 above) 636b. See also S v Van der Merwe 1998 (1) SACR 194 (O).
16
S v Orrie 2005 (1) SACR 63 (C).
17
S v Sebejan (note 12 above) 69i–70c.
18
1995 (1) SACR 568 (CC).
19
S v Langa 1998 (1) SACR 21 (T). See also S v Mthethwa 2004 (1) SACR 449 (E); S v Ndhlovu 1997 (12)
BCLR 1785 (N).
20
Section 25 of the interim Constitution contained substantially similar provisions to those found in s 35 of the
Constitution and similarly made a distinction between arrested, detained and accused persons.
21
S v Mthethwa (note 19 above) 453e–f.
22
Rule 2 provides: ‘Questions may be put to a person whom the police have decided to arrest or who is under
suspicion where it is possible that the person by his answers may afford information which may tend to establish
his innocence . . .. In such a case a caution should first be administered. Questions, the sole purpose of which is
that the answers may afford evidence against the person suspected, should not be put.’
23
See also S v Khan 2010 (2) SACR 476 (KZP).
24
R v Therens [1985] 1 SCR 613; R v Rahn [1985] 1 SCR 659; R v Trask [1985] 1 SCR 655; R v Thomsen
[1988] 1 SCR 640. Cf the approach of the New Zealand Court of Appeal in R v Goodwin [1993] 2 NZLR 153.
25
R v Therens (note 24 above) 642–645.
26
R v Thomsen (note 24 above) 640.
749
power to compel suspects to answer questions.27 However, if a suspect reasonably

believes that she must answer the question then she will be ‘detained’ and must be
advised of her right to legal representation.
Presumably, if this definition were imported into South African law, the test for
reasonable belief would be subjective, as is the test for undue influence in relation to
confessions.28 Consequently, a person who is questioned by the police, and who does
not know that she is not obliged to answer the questions, and feels compelled to
speak, will be detained for purposes of the Constitution. Such an approach would be
consistent with the constitutionally entrenched privilege against self-incrimination.
(b) Criminal trial proceedings

Although an argument can be made that fair trial rights can be used to provide protection
for suspects from the inception of the criminal process it is also clear that such
protection is dependent on the suspect becoming an accused. The scope of the right to a
fair trial is not infinitely elastic and applies only to accused persons. The s 35(3) right to
a fair trial does not extend to civil trials, nor does it apply to interrogation procedures
outside of the criminal process.29
There are several statutes that provide for interrogation procedures that are not
directed at a finding of guilt. Many of these authorise designated officials to compel
persons to appear before them and to answer questions, whether incriminating or not.30
As the subject of the examination is not an accused person she cannot claim fair trial
rights. However, if an examinee is subsequently charged and the prosecution seeks to
use evidence obtained at such an interrogation in a subsequent trial the protections
afforded by s 35(3) will apply. Even where an examinee has been arrested and charged
prior to an examination which occurs independently of the criminal trial he or she
cannot claim s 35(3) rights in relation to the examination, but may do so if evidence
from the examination is sought to be introduced at the trial.31 However, where the
purpose of the examination relates specifically to the offence with which an accused had
already been charged, the accused may not be summoned for interrogation on the
contents of that examination.32
If the evidence elicited at an examination is found to have been obtained in
contravention of the privilege against self-incrimination, the court may exclude it at a
27
R v Esposito (1985) 53 OR (2d) 356.
28
S v Mpetha (2) 1983 (1) SA 576 (C) 585.
29
See Nel v Le Roux NO (note 4 above) [11] in which the court held that the application of s 25(3) of the
interim Constitution was restricted to criminal proceedings. See also Ferreira v Levin & Vryenhoek v Powell NO
1996 (1) BCLR 1 (CC) [41]; Bernstein v Bester NNO 1996 (2) SA 751 (CC) (1996 (4) BCLR 449 (CC); Prinsloo
v Van der Linde 1997 (3) SA 1012 (CC); Key v Attorney-General, Cape Provincial Division 1996 (2) SACR 113
(CC); National Director of Public Prosecutions v Rebuzzi 2002 (1) SACR 128 (SCA); Parbhoo v Getz 1997 (4)
SA 1995 (CC).
30
For example s 65 of the Insolvency Act 24 of 1936; ss 415 and 417 of the Companies Act 61 of 1973;
s 66(1) of the Close Corporations Act 69 of 1984; ss 3, 4, 6, 8 and 9 of the Inspection of Financial Institutions Act
38 of 1984; ss 7, 9 and 17 of the Maintenance and Promotion of Competition Act 96 of 1979; ss 5, 7 and 14 of the
Harmful Business Practices Act 71 of 1988; s 6 of the Banks Act 94 of 1990.
31
Mitchell v Hodes 2003 (1) SACR 524 (C). See also Equisec (Pty) Ltd v Rodrigues 1999 (3) SA 113 (W).
32
In Shaik v Minister of Justice & Constitutional Development 2004 (1) SACR 105 (CC) [19] the
Constitutional Court held that the reference to ‘any person’ in s 28(b) of the National Prosecuting Authorities Act,
which permits the Investigating Director to summon any person who is believed to be able to furnish any
information in respect of the commission of a specified offence, did not include an accused who is being tried on
charges covered by the s 28 summons.
750
subsequent trial in terms of its discretion under s 35(5).33 The right to a fair trial is
protected by an immunity in respect of evidence arising out of the ‘non-trial’
interrogation: therefore it must be excluded. The subsequent use of evidence that was
derived from that unconstitutionally obtained evidence, ie derivative evidence, is less
clear-cut and its admissibility falls to be determined in terms of the court’s s 35(5)
discretion to exclude evidence.34 This however does not mean that an examinee is
deprived of the right to procedural fairness prior to becoming an accused35 and an
examinee will still be subject to the residual procedural safeguards to be found in the
s 12(1) right to freedom and security of person.36 A person detained for non-trial
purposes (for example, prior to deportation) may nevertheless rely on s 35(2) rights
specified in relation to detainees.37
The application of s 35(3) is not only dependent on whether the claimant of the
relevant rights is an accused; the claimant must also be an accused in criminal trial
proceedings. Consequently, an accused in bail proceedings is entitled to claim the rights
of an arrested and detained person but not fair trial rights.38 In S v Dlamini,39 Kriegler J
drew the following distinction between bail and trial proceedings:
[T]here is a fundamental difference between the objective of bail proceedings and that of the
trial. In a bail application the enquiry is not really concerned with the question of guilt. That
is the task of the trial court. The court hearing the bail application is concerned with the
question of possible guilt only to the extent that it may bear on where the interests of justice
lie in regard to bail. The focus at the bail stage is to decide whether the interests of justice
permit the release of the accused pending trial, and that entails in the main protecting the
investigation and prosecution of the case against hindrance.40
Fair trial rights will accrue when the object of the proceedings is to determine the guilt
or innocence of the accused.41 A person becomes an accused when he or she is charged
with committing an offence.42 However, the precise meaning of the word ‘charged’ is
not entirely clear. In terms of s 1 of the Criminal Procedure Act charge ‘includes an
33
See Mohamed NO v National Director of Public Prosecutions 2002 (4) SA 366 (W). For a fuller discussion
of investigative inquiries see PJ Schwikkard and SE van der Merwe Principles of Evidence 3 ed (2009) 12 9 7
and 17 4 4 2 and PJ Schwikkard Presumption of Innocence (1999) 65–75.
34
See Key v Attorney-General, Cape Provincial Division 1996 (2) SACR 113 (CC); Bernstein v Bester NNO
(note 29 above); Ferreira v Levin & Vryenhoek v Powell NO 1996 (1) BCLR 1 (CC); National Director of Public
Prosecutions v Mohamed 2003 (2) SACR 258 (C); Thatcher v Minister of Justice and Constitutional
Development 2005 (1) SACR 238 (CPD).
35
Nel v Le Roux NO (note 4 above) [11]. See also Bernstein v Bester NNO (note 29 above); Geuking v
President of the Republic of South Africa 2003 (3) SA 34 (CC).
36
See Coetzee v Government of the Republic of South Africa 1995 (4) SA 631 (CC) [43]. See also Sibiya v
Director of Public Prosecutions, Johannesburg 2006 (1) SACR 220 (CC) [32]–[33].
37
Lawyers for Human Rights v Minister of Home Affairs 2003 (8) BCLR 891 (T).
38
Nor can a respondent to proceedings instituted under s 8 of the Domestic Violence Act 116 of 1998, see
Omar v Government RSA 2006 (1) SACR 359 (CC). See S v Dlamini; S v Dladla and Others; S v Joubert; S v
Schietekat 1999 (2) SACR 51 (CC) [78] where Kriegler J held that the imposition of an onus on an applicant for
bail was not constitutionally objectionable as the question of erroneous conviction did not arise. Bail is discussed
more fully at 32.4 below.
39
Ibid [11].
40
See also Geuking (note 35 above) [47] where the court held that ‘[a] person facing extradition is not an
accused person for the purposes of the protection afforded by s 35(3) of the Constitution’.
41
See eg Khosana v NDPP 2012 (1) SACR 176 (FB) dealing with an application for a preservation of property
order.
42
See National Director of Public Prosecutions v Phillips 2002 (1) BCLR 41 (W) [40] and [41], where the
court held that ‘an accused person is someone called to answer a charge’ in proceedings that culminate in a
conviction and concluded that s 35(3) of the Constitution did not apply to an application for a confiscation order
751
indictment and a summons’. In Sanderson v Attorney-General, Eastern Cape43 the

Constitutional Court held that it is ‘not useful to attempt a universally valid
interpretation of a word so vague and which therefore derives much of its content and
meaning from the particular context in which it may be used’.44 Kriegler J held that, in
the context of an accused’s right to be tried without unreasonable delay, ‘having been
charged’ includes appearing in the dock for the formal remand of a criminal case’. In a
similar context, Zietsman J in Du Preez v Attorney-General, Eastern Cape45 held that ‘a
person is not “charged” with an offence until he is advised by a competent authority that
a decision has been taken to prosecute him’. Whilst this does not require the formal
furnishing of a summons or charge sheet it is clear that a person cannot be said to be
charged before a decision to prosecute was made merely because an investigation had
commenced. Thus it would appear that s 35(3) rights will accrue when a person is
notified formally or informally of the state’s intention to prosecute and the proceedings
are directed cumulatively at determining the criminal culpability of the accused.46
Section 35(3) will cease to apply once the accused has been sentenced.47
The need to draw a distinction between arrested, detained or accused persons and
those who are suspects but have been neither arrested nor detained should not
obscure the inter-relatedness of many of the rights protected in s 35. Since few of the
rights listed in s 35 can be viewed in isolation, the approach in this chapter is, where
possible, to reflect on the applicable rights in the context of their inter-relatedness. It
made under the Prevention of Organised Crime Act 121 of 1998. See also N Steytler Constitutional Criminal
Procedure (1998) 275.
43
Sanderson v Attorney-General, Eastern Cape 1998 (1) SACR 227 (CC).
44
Ibid [19]. See also National Director of Public Prosecutions v Moodley 2009 (2) SA 588 (SCA) [11] and
[12].
45
Du Preez v Attorney-General, Eastern Cape 1997 (2) SACR 375 (E) 382j–a.
46
But compare Dilworth v Reichard 2003 (4) BCLR 388 (W) in which the court was presented with a rather
novel issue. The plaintiff had been arrested and charged with a murder committed by the defendant. The
defendant, despite having knowledge of the plaintiff’s arrest, never advised the authorities that the plaintiff was
not responsible for the murder. The plaintiff brought a claim for damages against the defendant based on the
defendant’s failure to inform the police of the plaintiff’s innocence. The court found that in the circumstances the
defendant had had a legal duty to advise the relevant authorities that the plaintiff had not been involved in the
death of the deceased (at 398). The court then asked whether this legal duty had been negated by the defendant’s
constitutional rights to silence and not to incriminate himself. It was common cause that at the time of the
plaintiff’s arrest and detention (for the offence committed by the defendant) the defendant was not an arrested,
detained or accused person, nor was he a suspect. The court held that the solution was not to be found in
attempting to determine when the constitutional guarantee commenced—but rather in determining its true
purpose. The court held that the purpose of the right against self-incrimination was to ensure the fairness of the
trial and held that ‘[i]t exists to prevent compulsion of any person who potentially may become a detainee,
arrestee or accused person, not to show his hand in advance of any future criminal trial. Where no such
compulsion exists the rule against self-incrimination does not and need not apply’ (at 400). Following the
approach taken by Nugent J in Davis v Tipp NO 1996 (1) SA 1152 (W) Claassen J held that all the defendant
needed to do in the circumstances was to make a hard choice about whether to disclose the plaintiff’s
non-participation in the crime. Claassen J held that there is no compulsion to disclose and a defendant does not
expose himself to any legal penalty if he fails to do so. Consequently the defendant’s privilege against
self-incrimination would not have been infringed if the defendant had disclosed the plaintiff’s non-participation.
In the event that the court was wrong and there had been a constitutional infringement, the infringement was
justifiable. (It appears that Claassen J adopted a restrictive definition of a penalty—because clearly the failure to
disclose exposed the defendant to a civil claim.) Nevertheless, in the circumstances, Claassen J concluded that
requiring the defendant to disclose the plaintiff’s non-participation was a justifiable limitation because the right to
a fair trial is primarily directed at avoiding wrong convictions. Imposing a legal duty on the defendant would not
undermine this aspect of fairness, and a strong argument could be made that the plaintiff’s constitutional rights to
dignity and freedom and security of person outweighed any other fair trial considerations.
47
Sibiya v Director of Public Prosecutions, Johannesburg 2006 (1) SACR 220 (CC) [31].
752
Arrested, Detained and Accused Persons 32.2–32.3
must also be borne in mind that the rights specified in s 35(3) as prerequisites of the
right to a fair trial do not constitute a closed list.48
32.3 THE PRESUMPTION OF INNOCENCE AND RELATED RIGHTS

The presumption of innocence which is specified as a fair trial right in s 35(3)(h) is
traditionally viewed as the substance of fairness in criminal justice proceedings.
Although the presumption of innocence as a constitutional right has a narrowly defined
content,49 its operational efficacy is dependent on a number of associated rights: namely,
the right to remain silent at both trial (s 35(3)(h)) and pre-trial stages (s 35(1)(a)); and
the privilege against self-incrimination at trial (s 35(3)(j)) which is reflected as the right
not to make a confession or admission at the pre-trial stage (s 35(1)(c)). These rights in
turn would, in many instances, be illusory if arrested, accused and detained persons did
not have the right to be advised of the existence of such rights (s 35(1)(b), s 35(2)(b),
s 35(3)(f)), and did not have access to legal representation (s 35(2)(b) and (c), s 35(3)(f)
and (g)) to enable them to effectively exercise those rights.
(a) The presumption of innocence

(i) Content and rationale
As a consequence of poetic licence in Woolmington v DPP,50 the presumption of
innocence is frequently viewed as an ancient principle of English law which has been
absorbed into the South African law as a fundamental legal principle.51 However, it
seems that the presumption of innocence is neither particularly ancient nor English;52
nevertheless its underlying rationale has secured it a place in a number of modern
constitutions. Its rationale is wide and varied. It ranges from a concern that individual
rights need to be protected from the potentially coercive authority of the state, at one
end, to policy concerns directed at maintaining the legitimacy of the criminal-justice
system and the normative force of the criminal law, at the other. Despite the range of the
rationale it has at its centre a recognition that the presumption of innocence is necessary
to reduce the possibility of erroneous convictions.53 Erroneous convictions are also seen
as an indicator of the existence of a coercive state.
The rationale for the presumption of innocence finds expression in the reasonable
doubt standard. The reasonable doubt standard demands that the burden of proof rests on
the prosecution to prove guilt beyond a reasonable doubt.54 The correlation between the
rationale for the presumption of innocence and the reasonable doubt standard is
succinctly expressed by Wilson in the following passage:
Although the reasonable doubt standard is less a precise formula than it is a symbol it
satisfies certain imperatives. It offers society assurance that people innocent of crime shall
48
S v Zuma (note 18 above).
49
See eg Thint Holdings (Southern Africa) (Pty) Ltd v NDPP 2009 (1) SA 141 (CC) [51].
50
Woolmington v DPP [1935] AC 462 (HL) 481.
51
See Schwikkard Presumption of Innocence (note 33 above) 2ff for a general discussion of the origins and
rationale of the presumption of innocence.
52
Ibid.
53
See S v Dlamini (note 38 above) [78]. See C Collier ‘The Improper Use of Presumptions in Recent Criminal
Law Adjudication’ (1986) 38 Stanford LR 423, 457.
54
See Schwikkard and Van der Merwe (note 33 above) 316.
753
not be convicted; and although it creates an inevitable margin of error, ‘our society [has
determined] that it is far worse to convict an innocent man than to let a guilty man go free’.
Second, the reasonable doubt standard protects the individual against the state’s
considerable resources and its potentially oppressive power to secure the conviction of the
essentially powerless defendant. Perhaps most important, the reasonable doubt standard has
captured society’s belief in the security of its own standards of criminal justice. ‘[I]t is
critical that the moral force of the criminal law not be diluted by a standard of proof that
leaves people in doubt, whether innocent men are being condemned.’ It is also important in
our free society that ‘every individual going about his ordinary affair have confidence that
his government cannot adjudge him guilty of a criminal offense without convincing a proper
fact finder of his guilt with utmost certainty.55
The South African case law shows that the presumption of innocence is used to describe
two different phenomena: (1) a rule regulating the standard of proof; and (2) a policy
directive that the subject of a criminal investigation must be treated as innocent at all
stages of the criminal process irrespective of the probable outcome of the trial.56
Potential definitional difficulties arise if we do not distinguish between those rights
that are coherent with the presumption of innocence, and the presumption of
innocence itself. Whilst the rationale for rights such as the right to remain silent and
the privilege against self-incrimination may be partially attributable to the
presumption of innocence, their existence can also be attributed to policy
considerations separate from those applicable to the presumption of innocence.
Accordingly their application will give rise to considerations which may not always
arise in applying the presumption of innocence. The danger of conflating the
presumption of innocence and other separately enumerated rights is that those rights
become vulnerable to the argument that in situations where the presumption of
innocence is not applicable, or where the burden imposed by the presumption of
innocence has been discharged, then those rights no longer apply.
The court in S v Manamela57 drew a distinction between an infringement of the
right to remain silent and the presumption of innocence. The court was required to
consider whether the reverse onus in s 37 of the General Law Amendment Act 62 of
1955 infringed the constitutional right to a fair trial, in particular the right to be
presumed innocent, to remain silent, and not to testify during proceedings.
The majority held that s 37(1) requires the prosecution to prove the following
beyond a reasonable doubt: (1) that the accused was found in possession of goods,
other than stock or produce; (2) that the goods were acquired otherwise than at a
public sale; and (3) that the goods had been stolen. Once the prosecution has
discharged this burden the accused must establish on a balance of probabilities that:
(1) he or she believed, at the time of acquiring the goods, that the person from
whom he or she received them was the owner of the goods or was duly authorised
by the owner to dispose of them; and (2) his or her belief was reasonable. Section
37(1) effectively creates statutory liability for the negligent acquisition or receipt of
stolen goods.
55
V Wilson ‘Shifting Burden in Criminal Law: a Burden on Due Process’ (1981) 8 Hastings Constitutional LQ
731, 732–733. See also LJ Harris ‘Constitutional Limits on Criminal Presumptions as an Expression of Changing
Concepts of Fundamental Fairness’ (1986) 7 J of Criminal Law and Criminology 308, 310; D Dripps ‘The
Constitutional Status of the Reasonable Doubt Rule’ (1987) 75 California LR 1665, 1670.
56
See Schwikkard Presumption of Innocence (note 33 above) 35ff.
57
S v Manamela 2000 (1) SACR 414 (CC).
754
The majority held that s 37(1) (as it was at the time) was a justifiable infringement
of the right to remain silent but an unjustifiable infringement of the presumption of
innocence. The court drew a distinction between the right to remain silent and the
presumption of innocence. It held that the reverse onus (in that case) infringed the
right to silence because the accused had had to establish that they had reasonable
grounds for believing that the seller of the goods had been authorised to sell the
goods or was the owner of the goods even where the prosecution had led no
evidence regarding the reasonableness of their belief. Additionally, if the accused
failed to produce evidence of the reasonableness of their belief it was an inevitable
conclusion that such belief was not reasonable as it was not possible for any other
inference to be drawn. Section 37 infringed the presumption of innocence because
the section ‘imposed a full legal burden of proof on the accused’.58
In S v Singo59 in adopting essentially the same approach as that taken in
Manamela the Constitutional Court indicated that the presumption of innocence as a
constitutional right is restricted to the requirement that guilt be proved beyond a
reasonable doubt, whilst the allocation of the burden is a product of the right to
remain silent which appears to be a far more malleable right.
(ii) The scope of the presumption of innocence

The Constitutional Court has had ample opportunity to reiterate that the right to be
presumed innocent requires the prosecution to prove the guilt of an accused person
beyond reasonable doubt.60 The presumption of innocence applies to those elements of
the state’s case that must be established in order to justify punishment.61 The arena in
which the presumption of innocence has found greatest application is in that of reverse
onus provisions. Although reverse onuses in civil cases may attract attention in a
broader constitutional context,62 the same may not be said of reverse onuses in criminal
cases: they are generally inapplicable outside of the criminal trial context.63 This is
because the presumption of innocence is a specified constitutional right that arises only
in the context of an accused’s right to a fair trial. In addition, it has been held not to
apply to interrogation procedures outside of the criminal process, nor to proceedings that
take place after conviction.64 Quasi exceptions are the civil imprisonment of debtors,65
and contempt of court proceedings instituted by means of civil proceedings.66
58
S v Manamela (note 57 above) [25]. For a critical discussion of his case see PJ Schwikkard 2000 SACJ 239.
Cf Osman v Attorney-General Transvaal 1998 (4) SA 1224 (CC) which is also critically discussed by PJ
Schwikkard ‘A Dilution of the Presumption of Innocence and the Right to Remain Silent?’ (1999) 115 SALJ 462.
59
S v Singo 2002 (2) SACR 160 (CC).
60
See eg S v Zuma (note 18 above); S v Coetzee 1997 (3) SACR 527 (CC); S v Bhulwana; S v Gwadiso 1995
(2) SACR 748 (CC); S v Boesak 2001 (1) SA 912 (CC) [16].
61
Schwikkard Presumption of Innocence (note 33 above) 40ff. It remains unclear whether this applies to the
admissibility of evidence—see S v Mgcina 2007 (1) SACR 82 (T) discussed in the 2007 Annual Survey at 852.
62
See eg the Constitutional Court’s consideration of the allocation of the burden of proof in defamation cases
in relation to s 16 of the Constitution in Khumalo v Holomisa 2002 (5) SA 401 (CC). See also Coetzee v
Government of the Republic of South Africa 1995 (4) SA 631 (CC) in which the court held the civil imprisonment
of debtors unconstitutional.
63
See Prinsloo v Van der Linde 1997 (3) SA 1012 (CC).
64
In S v Dzukuda; S v Tshilo 2000 (2) SACR 443 (CC) [53] the court held that while the accused’s liberty and
security interests were not extinguished during the sentencing phase of the trial, they were reduced in that the
presumption of innocence was no longer applicable. (However, Ackermann J held that the accused’s rights to
remain silent and not to testify during proceedings were still applicable at the sentencing stage ([40]). See also
NDPP v Phillips 2001 (2) SACR 542 (W) in which the court held that proceedings in terms of Chapter 5 of the
755
(iii) Reverse onus provisions

Reverse onus provisions were considered for the first time by the Constitutional Court in
S v Zuma67 where the constitutionality of s 217(1)(b)(ii) of the Criminal Procedure Act
was in issue. This section placed a burden on the accused to prove, in specified
circumstances, the inadmissibility of a confession on a balance of probabilities.
Kentridge AJ delivering the unanimous decision of the court held that the presumption
of innocence will be infringed whenever there is a possibility of conviction despite the
existence of a reasonable doubt. Furthermore, where a statutory presumption requires
the accused to prove or disprove an element of an offence or excuse on a balance of
probabilities, such a presumption is likely to create the possibility of conviction despite
the existence of a reasonable doubt.68 Finding that the effect of the presumption
contained in s 217(1)(b)(ii) was to place a burden on the accused to prove a fact on a
balance of probabilities, Kentridge AJ concluded that the section breached the
constitutional right to be presumed innocent.
In S v Coetzee69 the Constitutional Court had an opportunity to deal with the effect of
the presumption of innocence on statutory provisions requiring the accused to prove an
exemption, exception or defence.70 In Coetzee the court was required to determine the
constitutionality of s 332(5) of the Criminal Procedure Act, which provides:
When an offence has been committed, whether by the performance of any act or by the
failure to perform any act, for which any corporate body is or was liable to prosecution, any
person who was, at the time of the commission of the offence, a director or servant of the
corporate body shall be deemed to be guilty of the offence, unless it is proved that he did not
take part in the commission of the offence and that he could have prevented it, and shall be
liable to prosecution therefore, either jointly with the corporate body or apart therefrom, and
shall on conviction be personally liable to punishment therefore.
Langa J held that s 332(5) imposed an onus on the accused to prove an element relevant
to the verdict, whether this element pertained to the offence or to an exemption was not
relevant, the issue being the substance of the offence. ‘If a provision is part of the
substance of the offence and the statute is formulated in a way which permits a
Prevention of Organised Crime Act 121 of 1998, relating to confiscation orders commencing after conviction,
could not be affected by the presumption of innocence as guilt or innocence had not been in issue.
65
Coetzee (note 62 above).
66
Uncedo Taxi Service Association v Maninjwa 1998 (2) SACR 166 (E). The presumption of innocence has
clear application in contempt of court proceedings. See generally S v Baloyi 2000 (1) SACR 81 (CC); S v
Mamabolo 2001 (1) SACR 686 (CC), S v Singo (note 59 above). Compare S v Chinamasa 2001 (1) SACR 278
(ZS).
67
S v Zuma (note 18 above).
68
See also S v Bhulwana; S v Gwadiso 1996 (1) SA 388 (CC) where the Constitutional Court similarly found
that the presumption contained in s 21(1)(a)(i) of the Drugs and Drug Trafficking Act 140 of 1992 was
unconstitutional. In S v Ntsele 1997 (2) SACR 740 (CC) s 21(1)(b) of the Drugs and Drug Trafficking Act was
held unconstitutional. In S v Mello 1999 (2) SACR 255 (CC) s 20 of the Drugs and Drug Trafficking Act was
struck down. In S v Mbatha; S v Prinsloo 1996 (1) SACR 371 (CC) the court held s 40(1) of the Arms and
Ammunition Act 75 of 1960 unconstitutional; in Lodi v MEC for Nature Conservation and Tourism, Gauteng
2005 (1) 556 SACR (T) the court found s 37(1)(c) and s 110(1)(b) and (c) of the Nature Conservation Ordinance
12 of 1983 unconstitutional but, favouring the approach taken in Osman v Attorney-General Transvaal 1998 (4)
SA 1224 (CC), held that s 37(1)(b) which required a person to give a satisfactory account of possession of dead
game did not constitute a reverse onus provision.
69
S v Coetzee 1997 (3) SA 527 (CC). For a further discussion of Coetzee see G Kemp ‘Die Grondwetlikheid
van Statutêre Vermoedens’ 1998 Stell LR 106.
70
See also S v Nduku 2000 (2) SACR 382 (TkHC). See generally A Paizes ‘A Closer Look at the Presumption
of Innocence in our Constitution: What is an Accused Presumed to be Innocent of?’ 1998 (11) SACJ 409.
756
conviction despite the existence of a reasonable doubt in regard to that substantial part,
the presumption of innocence is breached.’71 The court in Coetzee by implication
rejected the ‘greater includes the lesser test’.72 Consequently, a reverse onus provision
cannot be saved by the argument that the legislature by creating a special defence in
respect of which the accused bears the onus, has ameliorated the hardship the accused
would otherwise have suffered if it had chosen to create an absolute liability offence.73
In Scagell v Attorney-General of the Western Cape,74 without distinguishing
between permissive and mandatory evidentiary presumptions, the Constitutional
Court held that an evidentiary burden does not create the possibility of conviction
despite the existence of a reasonable doubt. One of the provisions considered in
Scagell was s 6(3) of the Gambling Act 51 of 1965 which reads as follows:
When any playing-cards, dice, balls, counters, tables, equipment, gambling devices or other
instruments or requisites used or capable of being used for playing any gambling game are
found at any place or on the person of anyone found at any place it shall be prima facie
evidence in any prosecution for a contravention of subsection (1) that the person in control
or in charge of such place was playing such game at such place and was visiting such place
with the object of playing such game.
O’Regan J noted that the words ‘shall be prima facie evidence’ used in s 6(3) were
generally considered as imposing no more than an evidentiary burden on the accused.
Such an evidentiary burden merely requires ‘evidence sufficient to give rise to a
reasonable doubt to prevent conviction’.75 She held that, unlike the imposition of a legal
burden, an evidentiary burden did not create the possibility of conviction despite the
existence of a reasonable doubt. The court found it unnecessary to consider whether
s 6(3) nevertheless infringed the presumption of innocence by relieving the prosecution
of its duty to prove all the elements of the offence charged. This was due to the court’s
conclusion that the section infringed the right to a fair trial, its sweeping provisions
permitting innocent persons to be brought to trial ‘merely upon proof of a fact which
itself is not suggestive of any criminal behaviour’76 (for example, possession of a pack
of playing cards).
One of the weaknesses in the Scagell judgment is the court’s failure to draw a
distinction between permissive and mandatory evidentiary burdens. It is clear that
s 6(3) created a mandatory presumption. The presumption requires the court to
presume, once certain items have been found, that the person in control or in charge
of such place permitted the playing of a gambling game. There can be no doubt that
71
72
This American phraseology is used to reflect an argument that since the legislature in formulating offences is
not obliged to provide any defence, it is free to determine the rules of proof in relation to any defences it
gratuitously creates, ie the greater power of elimination of the defence is seen as including the lesser power of
shifting the burden of proof. See D Dripps ‘The Constitutional Status of the Reasonable Doubt Rule’ 1987 (75)
California LR 1665.
73
While it might not be possible to challenge absolute liability offences on the basis that they infringe the
presumption of innocence they remain vulnerable to challenge on the basis of the constitutional right to freedom
and security of person. See S v Coetzee (note 70 above) [93] and [159] where O’Regan J held that it was
necessary to distinguish between two separate constitutional inquiries that may arise where a statutory provision
creates a strict liability offence and places a burden on the accused. The first inquiry is whether it is
constitutionally legitimate for Parliament to impose the form of criminal liability. The second inquiry focuses on
the legitimacy of imposing a burden on the accused.
74
Scagell v Attorney-General of the Western Cape 1996 (2) SACR 579 (CC).
75
Ibid [12].
76
Ibid [16].
757
proof of the basic fact in s 6(3) has a very tenuous relationship with the presumed
fact and can in no way be considered to inexorably lead to the conclusion presumed.
Consequently, if the accused exercised his constitutional right to remain silent and
led no defence evidence, he would in the absence of other evidence capable of
raising a reasonable doubt, be liable to conviction despite the existence of a
reasonable doubt.77 In the absence of a mandatory presumption, the prosecution
would be forced to lead additional evidence of the presumed fact in order to secure
conviction or avoid discharge. The application of such a presumption could lead to
conviction despite the existence of a reasonable doubt. Ironically, this is implicit in
O’Regan J’s reasons for holding that s 6(3) infringed the right to a fair trial. She
held that the effect of s 6(3) was that ‘innocent persons, against whom there is no
evidence suggestive of criminal conduct at all, may be charged, brought before a
court and required to lead evidence to assert their innocence’.78
The issue of determining the application of the presumption of innocence to
regulatory offences has yet to be properly considered by the courts. However, the
Constitutional Court has indicated that the regulatory nature of an offence is better
considered as a factor in establishing whether a provision constitutes a justifiable
limitation on the right to be presumed innocent rather than in establishing breach.
This approach is to be preferred in that it allows the court to concentrate on ‘the
values at stake in the particular context’79 rather than focusing on the unruly
distinction between regulatory and criminal offences.80
Although the Constitutional Court has made it clear that there may well be
instances where a reverse onus provision is justified,81 it has been remarkably
consistent in refusing to find justification for an infringement of the presumption of
innocence. The normative value accorded to the presumption as a fundamental right
has been underlined by the court’s insistence that any justification for infringing the
presumption of innocence would have to be clear, convincing and compelling.82
(b) The right to remain silent; the right not testify during proceedings and
the right not be give self-incriminating evidence
(i) Content and rationale
The right to remain silent can be described as the absence of a legal obligation to
speak.83 Its underlying rationale is three-pronged: (1) concern for reliability (by
deterring improper investigation) which relates directly to the truth-seeking function of
the court; (2) a belief that individuals have a right to privacy and dignity which, whilst
not absolute, may not be lightly eroded; (3) the right to remain silent is necessary to give
77
See R v Wholesale Travel Inc 1992 8 CR (4th) 145.
78
Scagell (note 74 above) [16].
79
See S v Coetzee and Others 1997 (3) SA 527 (CC) at 43.
80
See D Stuart Canadian Criminal Law—A Treatise 3 ed (1995) 160. See also Schwikkard Presumption of
Innocence (note 33 above) 97ff. Compare S v Fransman 2000 (1) SACR 99 (W).
81
S v Zuma (note 18 above) [41].
82
See S v Mbatha; S v Prinsloo 1996 (1) SACR 371 (CC) [10]; S v Ntsele 1997 (11) BCLR 1543 (CC) [4]. For
a fuller analysis of limitations analysis jurisprudence in relation to reverse onus provisions see Schwikkard
Presumption of Innocence (note 33 above) 133ff; Schwikkard & Van der Merwe Principles of Evidence (note 33
above) 29 2 2.
83
S v Thebus 2003 (2) SACR 319 (CC) [55]; R v Esposito (1985) 49 CR (3d) 193 (Ont.CA).
758
effect to the privilege against self-incrimination and the presumption of innocence.84 It

is specified in relation to both pre-trial (s 35(1)(a))85 and trial procedures (s 35(3)(h)).
An arrested person must be promptly informed of the right to remain silent and of the
consequences of not remaining silent (s 35(1)(b)). The advice must be conveyed in a
language that is understood by the accused (s 35(4)). The failure to properly advise the
accused of his or her right to remain silent will constitute a constitutional breach and
might lead to subsequent statements made by the accused being deemed inadmissible in
terms of s 35(5). However, if an accused is aware of his right to remain silent, then the
failure to advise him of this right will not necessarily render the trial unfair.86
(ii) Plea proceedings

It is not entirely clear whether trial fairness will be compromised if an accused is not
warned of his or her right to remain silent on entering a plea. In terms of s 112 of the
Criminal Procedure Act 51 of 1977 the accused may be questioned by the presiding
officer after entering a plea of guilty. This may be justified in numerous ways. The
accused, by entering a plea of guilty, is clearly abdicating her right to be presumed
innocent and there is no longer a contest between the state and the accused.
Furthermore, questioning in terms of s 112 is aimed at protecting the accused;87 the
accused cannot compromise herself further as she has already admitted guilt. A
presiding officer may, through questioning the accused, discover that she does have a
valid defence. For example, it may become apparent on a charge of culpable homicide
that the accused acted in self-defence. In Director of Public Prosecutions, Natal v
Magidela88 the Supreme Court of Appeal held that the failure to advise an accused of
the right to remain silent, after he has entered a plea of guilty and before questioning him
in terms of s 112(1)(b) of the Criminal Procedure Act, did not necessarily infringe the
accused’s right to a fair trial. However, in S v Tshabalala89 the court found that the
Constitution placed a general duty on judicial officers to advise an accused of his right to
remain silent during plea proceedings; in each case it had to be established whether the
admission of the evidence would violate the accused’s right to a fair trial.90 It is difficult
to imagine circumstances in which not been warned of the right to remain silent would
prejudice an accused who has pleaded guilty, the primary purpose of questioning at this
stage being to ensure that the accused is not improperly convicted.
Equally contentious is questioning in terms of s 115 after the accused has entered a
plea of not guilty. In terms of s 115(1), where an accused pleads not guilty, the
84
S v Thebus (note 83 above) [55]. See also S v Manamela 2000 (3) SA 1 (CC); Osman v Attorney-General
Transvaal 1998 (4) SA 1224 (CC).
85
See S v Mcasa 2005 (1) SACR 388 (SCA) [15].
86
See Director of Public Prosecutions, Transvaal v Viljoen 2005 (1) SACR 505 (SCA) [43]. Cf S v McKenna
1998 (1) SACR 106 (C), S v Solomons 2004 (1) SACR 137 (C).
87
S v Williams 2008 (1) SACR 65 (C) [6].
88
2001 (1) SACR 458 (SCA).
89
2011 (1) SACR 497 (GNP).
90
Lukoto J in S v Nelushi 2006 (1) SACR 462 (V), in considering the judgment of the court a quo on
automatic review, held that the failure to ask the accused whether his plea of guilty in terms of s 112 of the
Criminal Procedure Act had been made freely, voluntarily and without undue influence constituted an irregularity
but that in the circumstances it did not warrant the setting aside of the proceedings. See also Director of Public
Prosecutions, Transvaal v Viljoen 2005 (1) SACR 505 (SCA) [43]; S v Seabi 2003 (1) SACR 620 (T);
S v Damons 1997 (2) SACR 218 (W). Compare S v Maseko 1996 (2) SACR 91 (W). See also Steytler (note 42
above) 341.
759
magistrate may ask her whether she wishes to make a statement indicating the basis of
her defence. Section 115(2)(a) provides that where the accused does not make a
statement indicating the basis of her defence, or does so and it is not clear from the
statement to what extent she denies or admits the issues raised by the plea, the court may
question the accused in order to establish which allegations in the charge are in dispute.
In terms of s 115(2)(b) the court may question the accused in order to clarify any
matter with regard to the statement indicating the basis of the accused’s defence, or her
replies to questions directed at ascertaining which allegations are in dispute. It is clear
that an accused is not obliged to answer any questions put to her under s 115, and she
must be advised of this right.91 An unrepresented accused may find it extremely difficult
to exercise this right in an alien and intimidating court environment.92 Consequently, it
is possible that s 115 may yet be challenged as effectively contravening the
constitutionally protected right to remain silent.93
(iii) Negative inferences from silence

In the constitutional context an issue that has been the subject of both national94 and
international95 debate is whether a negative inference can be drawn from an accused’s
election to exercise her right to remain silent. Although the issue of a negative inference
will always only arise at the trial stage, there are significant policy issues differentiating
silence at the pre-trial stage and silence at trial.
At common law the right to remain silent prohibited a court from drawing adverse
inferences from silence at the investigative stage of the proceedings. However, at
common law if an alibi defence is raised for the first time at trial, the court in
determining whether the alibi is reasonably possibly true, may take into account that
there has been no opportunity for the state to investigate the alibi properly.96
The constitutionality of the common-law approach to the late disclosure of an alibi
was considered by the Constitutional Court in S v Thebus97 in which the court also
applied its mind to the permissibility of drawing an adverse inference of guilt from
pre-trial silence, and the constitutionality of drawing an adverse inference as to the
credibility of the accused from pre-trial silence.
These issues were raised on appeal by one of two co-accused whose conviction on a
charge of murder and two counts of attempted murder had been confirmed by the
Supreme Court of Appeal. On arrest the accused was warned of his right to remain silent
91
S v Evans 1981 (4) SA 52 (C); S v Daniels 1983 (3) SA 275 (A); S v Mabaso 1990 (3) SA 185 (A); S v Hill
1981 (2) PH H152 (C).
92
See generally N Steytler The Undefended Accused (1988) 128.
93
The South African Law Commission in its Report Simplification of Criminal Procedure (A more
inquisitorial approach to criminal procedure—police questioning, defence disclosure, the role of judicial offıcers
and judicial management of trials) Project 73, August 2002, has recommended that s 115 of the Criminal
Procedure Act be amended to make advisement of the accused as to the right to remain silent peremptory. It also
recommends removing the court’s discretion whether to ask the accused whether she wishes to disclose the basis
of her defence, making such questioning compulsory.
94
See South African Law Commission, Project 73 (note 93 above)); K van Dijkhorst ‘The Right to Silence: Is
the Game worth the Candle?’ (2001) 118 SALJ 26; RW Nugent ‘Self-incrimination in Perspective’ (1999) 116
SALJ 501, PJ Schwikkard ‘Silence and Common Sense’ 2003 Acta Juridica 92.
95
See eg S Easton The Case for the Right to Silence 2 ed (1998); I Dennis ‘Silence in the Police Station: The
Marginalisation of Section 34’ (2002) Criminal Law Review 25; J Jackson, M Wolfe and K Quinn Legislating
Against Silence: The Northern Ireland Experience (2000).
96
R v Mashele 1944 AD 571; S v Zwayi 1997 (2) SACR 772 (Ck).
97
2003 (2) SACR 319 (CC).
760
but nevertheless elected to make an oral statement in which he described the

whereabouts of his family at the time of the shooting, but at trial testified that this was
not intended to include himself. (If it did, it would have contradicted the details of his
alibi defence.) After making this initial oral statement the accused refused to make a
written statement and only disclosed his alibi defence two years later when the matter
came to trial. The alibi defence was rejected by the trial court and the accused convicted.
The accused’s appeal to the Supreme Court of Appeal failed and the matter then
proceeded to the Constitutional Court—one of the grounds of appeal being that the
Supreme Court of Appeal had erred in drawing a negative inference from the accused’s
failure to disclose his alibi defence timeously. Although there was concurrence on the
ultimate fate of the appeal on this point, it attracted four separate judgments.
Moseneke J (Chaskalson CJ and Madala J concurring) emphasised the distinction
between pre-trial silence and trial silence. In terms of this distinction the objective of the
right to silence during trial is to secure a fair trial, whereas ‘[t]he protection of the right
to pre-trial silence seeks to oust any compulsion to speak’.98 He then categorically stated
that ‘[i]n our constitutional setting, pre-trial silence of an accused can never warrant the
drawing of an inference of guilt’99 as this would undermine both the rights to remain
silent and to be presumed innocent.100 It is the ambiguity of pre-trial silence that
prohibits an inference of guilt being drawn from the accused’s silence before the
trial—the drawing of an inference would render the mandatory warning of the right to
remain silent ‘a trap instead of a means for finding out the truth in the interests of
justice’.101
Moseneke J drew a distinction between an inference as to guilt and an inference
pertaining to credibility on the basis of a person’s pre-trial silence. The latter would not
necessarily infringe the presumption of innocence.102 There is a difficulty in making this
distinction, particularly in respect of the late disclosure of an alibi defence, as a negative
inference as to credibility will inevitably be a factor taken into consideration in the
ultimate determination of guilt or innocence.
Moseneke J’s judgment also supports a distinction being drawn between an inference
as to guilt and the effect of late disclosure on the evaluation of the weight to be accorded
the alibi evidence. Where late disclosure precludes the prosecution from properly
investigating the alibi defence, the alibi evidence will not be able to be fully tested and
consequently less weight must be attached to it. This is simply an unavoidable
consequence of adversarial proceedings. Therefore the effect on weight is not a result of
a negative inference as to credibility or guilt, it is simply a product of the evaluation of
evidence in the context of an adversarial system. Nevertheless, Moseneke J appears to
equate this procedural consequence with an inference as to credibility and notes that
drawing an inference as to credibility amounts to a compulsion to speak and
consequently limits the accused’s right to silence. He noted that it is constitutionally
mandatory to warn accused persons of their right to remain silent but that it is not
mandatory that they be warned that their silence may possibly be used against them and
that this is a factor that must be taken into account in determining the weight to be
98
S v Thebus (note 97 above) [55].
99
Ibid [57].
100
Ibid [58].
101
Ibid [58].
102
Ibid [59].
761
accorded an alibi. Taking into account the limited use of an inference based on the late
disclosure of an alibi, he concluded that the common-law rule is a justifiable limitation
of the right to remain silent and that late disclosure of an alibi may have consequences
which ‘can legitimately be taken into account in evaluating the evidence as a whole’.103
Moseneke J acknowledged that ‘an election to disclose one’s defence only when one
appears on trial is not only legitimate but also protected by the Constitution’.104
However, he held that this would not preclude cross-examination on the accused’s
election to remain silent as such cross-examination would go to credit and ‘would not
unjustifiably limit the right to remain silent’105 provided it was conducted with due
regard to the dictates of trial fairness.106
In a joint judgment, Goldstone and O’Regan JJ (Ackerman J and Mokgoro J
concurring) concurred in the result but dissented insofar as they reached the conclusion
that drawing an adverse inference from the first appellant’s failure timeously to disclose
his alibi was an unjustifiable infringement of the right to remain silent. In considering
the rationale for prohibiting inferences from the silence they rejected the argument that
it is unfair to place the accused in a position where he will suffer adverse consequences
whatever his election, on the basis that hard choices were unavoidable in the adversarial
process.107 But they went no further than suggesting that it is inevitable that there may
be adverse consequences from exercising the right to remain silent and avoided
concluding that silence itself is an item of evidence. Goldstone and O’Regan JJ rejected
the argument that drawing an adverse inference infringes the presumption of innocence
as it relieves the state of part of its burden of proving guilt beyond a reasonable doubt on
the basis that the Constitution ‘does not stipulate that only the state’s evidence may be
used in determining whether the accused person has been proved guilty’.108 However,
taking the historical record of policing into account, they found that the prohibition on
adverse inferences was justified insofar as it protected accused persons from improper
police questioning and procedures.109 They held that this rationale does not extend to
silence in court. They also endorsed the view that it is unfair to warn accused persons of
their right to remain silent, in a formulation that implies that there will be no penalty for
silence, and then draw a negative inference from that silence.110 Although it is legitimate
for an accused to be compelled to make a choice, that choice must be an informed choice
and ‘an accused person needs to understand the consequences of remaining silent’.111
The warning also constitutes a barrier to drawing an adverse inference in that in many
cases it ‘will render the silence by the accused ambiguous’.112 Goldstone and O’Regan
JJ rejected the distinction between adverse inferences going to guilt and those going to
credit, as although they might be conceptually different, ‘the practical effect of the
adverse inference to be drawn for the purposes of credit, namely, that the alibi evidence
is not to be believed, will often be no different to the effect of the inference to be drawn
103
104
Ibid [69].
105
Ibid [69].
106
Ibid [70].
107
Ibid [83].
108
Ibid [83].
109
Ibid [85].
110
Ibid [86].
111
Ibid [87].
112
Ibid [88].
762
with respect to guilt, namely that the late tender of the alibi suggests that it is
manufactured and that the accused is guilty’.113 They also rejected Moseneke J’s
conclusion that it is constitutionally permissible to cross-examine an accused on his or
her election to remain silent. First, on the basis that an accused should not be required to
explain why he or she chose to exercise a constitutional right114 and, secondly, it would
be unfair in the light of the constitutionally mandated warning in respect of silence.115
However, the two justices concluded that if the warning was revised, an adverse
inference from the late disclosure of an alibi would constitute a justifiable limitation on
the right to remain silent.116
Jacoob J, although concurring in the result, took a somewhat different approach. He
rejected the distinction between trial and pre-trial silence and held that s 35(1)(a) and
s 35(3)(h) ‘represent a continuum’.117 He identified the purpose of the right to silence as
being to ‘ensure that people are protected from self-incrimination in the process of
police interrogation’.118 However, the ultimate objective of the right to remain silent,
Yacoob J held, is to ensure a fair trial. Furthermore, he held that the right to a fair trial ‘is
not limited to ensuring fairness for the accused. It is much broader. A court must also
ensure that the trial is fair overall, and in that process, balance the interests of the
accused with that of society at large and the administration of justice’.119
Presumably it is because this broad concept of trial fairness cannot be found in
s 35(3), which specifically attaches to the accused, that Yacoob J finds confirmation of it
is s 35(5) of the Constitution. Section 35(5) confers a discretion on the courts to admit
evidence even if it was unconstitutionally obtained, provided that it is fair to do so and
its admission is not detrimental to the interests of justice. Consequently, Jacoob J held
that, provided drawing inferences from the exercise of the right to remain silent, or
cross-examination, does not ultimately render the trial unfair, there is no basis on which
to forbid the drawing of an inference or such cross-examination. He reasoned as follows:
In the exercise of the duty to ensure a fair trial, it would become necessary to balance the
rights of the accused, the rights of the victim and society at large. The right to silence of the
accused could well become implicated in this balancing exercise when the judicial officer
makes decisions concerning the admissibility of evidence, the allowing of cross-
examination, as well as the drawing of inferences. Indeed inferences arising out of silence
cannot ordinarily be drawn unless there is evidence of the silence of the accused and
evidence of the circumstances surrounding the silence. Any investigation around the
accused’s silence cannot be said to infringe his right to silence unless the trial is thereby
rendered unfair. The same goes for all decisions concerning admissibility of evidence as
well as the use of silence in the drawing of inferences. The fairness of the trial as an
objective is fundamental and key. The right to silence can only be infringed if it is implicated
in a way that renders the trial unfair. It is a contradiction in terms to suggest that the right to
silence has been infringed if it is implicated in a way that does not compromise the fairness
of the trial but enhances it.120
113
114
Ibid [91].
115
Ibid [91].
116
Ibid [34].
117
Ibid [104].
118
Ibid [105].
119
Ibid [107].
120
Ibid [109].
763
The reasoning in this passage is difficult to sustain. First, s 35(5) only becomes
applicable once it has been established that evidence has been unconstitutionally
obtained. In respect of the right to remain silent it first needs to be established whether
the right to remain silent in s 35(1)(a) or s 35(3)(h) has been infringed, and in this
context the right to remain silent attaches only to arrested and accused persons and does
not incorporate the rights of the victim and society at large. The broader notion of trial
fairness may possibly be read into s 35(5)—but is precluded at the early stage of the
inquiry. Secondly, by conflating the right to silence and the right to a fair trial at all
stages, Yacoob J implies that the only remedy for infringing the right to remain silent is
the exclusion of evidence. An arrested person who is subjected to improper police
questioning that infringes his or her right to remain silent must surely (at least
theoretically) be able to seek relief for the infringement of this pre-trial right prior to
going to trial. Undue emphasis on trial fairness may result in insufficient attention being
given to the underlying relationship between the right to remain silent and the right to
dignity.
However, much is to be said for the contextual approach taken by Yacoob J in
respect of the appropriate warning to be given to arrested persons. He suggests that a
more complex warning as to the consequences of remaining silent may well ‘tilt the
balance in favour of getting [a] person to speak’121 and this may not necessarily be
fairer than the constitutionally prescribed warning that ‘encourages silence on the
part of an arrested person’.122 Taking context into account Jacoob J concluded that
the more limited warning did not result in any unfairness to the appellant.123
Contextualising constitutional rights might also lead to the conclusion that a more
complex warning will make little difference to the fairness of the trial as it simply
will not be understood. Therefore adverse inferences should not be permitted in these
circumstances as silence in response to an incomprehensible warning would
inevitably be too ambiguous to sustain an inference.124
Given the divergent judgments it is difficult to make any absolute claim as to what
the law now is. Ten judges heard the case: surprisingly, only two of the 10125 found
that it was unnecessary to determine whether the failure to disclose an alibi defence
to the police could attract an adverse inference, as on the facts of the case the
appellant had not exercised his right to silence and after being duly warned had
responded to a question concerning his whereabouts; in effect what the court was
dealing with was a previous inconsistent statement. Seven of the 10 judges held that
it was constitutionally impermissible to draw an adverse inference as to guilt from
the accused’s pre-trial silence. However, four of the seven judges indicated that if
the constitutionally mandated warning was rephrased so as to apprise arrested
persons of the consequences of remaining silent, an adverse inference from pre-trial
silence might be constitutionally justifiable. Another three judges held that although
an adverse inference as to guilt was not justifiable, an adverse inference as to
credibility was a justifiable limitation on the right to remain silent and that it was
121
122
Ibid [111].
123
Ibid [111].
124
Yacoob, like Goldstone and O’Regan JJ, rejects the distinction between inferences that go to credibility and
those that go to guilt.
125
Ngcobo J, with Langa DCJ concurring.
764
permissible to cross-examine the accused on his failure to disclose an alibi

timeously. Four judges expressly rejected this conclusion. All eight of the judges
dealing with the question of adverse inferences would appear to concur with the
view that there may well be negative consequences to remaining silent. So it would
seem that the common law remains intact and it is constitutionally permissible to
take the late disclosure of an alibi into account in determining what weight should be
attached to the alibi defence.
The judgment of Moseneke J is categorical in stating that negative inferences as to
guilt from pre-trial silence are constitutionally impermissible.126 On the other hand,
the concurring judgment of Goldstone and O’Regan JJ suggests that such inferences
might be constitutional if arrested persons are warned of the consequences of silence.
A conclusion that would be consistent with both judgments is that the ambiguity of
silence would remain if an arrested person did not understand the revised warning—
making it highly unlikely that a negative inference could ever be drawn from silence
at any stage where an arrested or accused person is not represented.
The position as regards inferences from trial silence is also not entirely clear, and
was not discussed by the Constitutional Court in S v Thebus. However, the matter
has been discussed by the Appellate Division. At common law the prosecution may
refer to the accused’s silence once a prima facie case has been established in
argument at trial, or on review or appeal. This was based on clear authority for the
view that, in certain circumstances, an accused’s refusal to testify, when the
prosecution has established a prima facie case, may be a factor in assessing guilt.127
The High Court in S v Brown128 held that whilst the right to remain silent was
recognised at common law, its constitutional status required a change in emphasis as
regards its application. (The most obvious change is that any infringement of the
right to remain silent is required to be justified with reference to the limitations
clause.) Buys J, finding that the use of silence as an item of evidence amounted to
an indirect compulsion to testify and that the drawing of an adverse inference from
silence diminished and possibly nullified the right to remain silent, held that it would
be unconstitutional for the court to draw an adverse inference where accused persons
elect to exercise their constitutional right to remain silent.129 However, the court held
that this does not mean that certain adverse consequences will not arise should an
accused exercise the right to remain silent.130 Where the state has established a
prima facie case against the accused and the accused fails to testify or adduce any
other evidence, the court is required to base its decision on the uncontradicted
evidence of the state. In this situation it is possible, indeed common, that the prima
facie case will be sufficient to sustain a conviction. In other words, although the
accused’s silence may not be treated as an item of evidence he will incur the risk of
conviction on the basis of the state’s uncontradicted prima facie case. But any
126
See also S v Maasdorp 2008 (2) SACR 296 (NC).
127
S v Mthetwa 1972 (3) SA 766 (A); S v Snyman 1968 (2) SA 582 (A); S v Letsoko 1964 (4) SA 768 (A); R v
Ismail 1952 (1) SA 204 (A).
128
S v Brown 1996 (2) SACR 49 (NC).
129
Ibid 62.
130
Ibid 63.
765
inference drawn must be drawn from the uncontroverted evidence and not from
silence.131
Reaching the opposite conclusion (and without reference to Brown), the court in
S v Lavhengwa132 fully endorsed the view of Trengove133 that an adverse inference
could be permitted in the appropriate circumstances, based on the following reasons:
It accords, first, with common sense. The inference is permissible only when the accused
fails to give evidence despite the fact that the prosecution evidence strongly indicates guilt,
an innocent accused would have refuted evidence against him, and there is no other
explanation of his failure to do so. In these circumstances common sense demands that an
inference be drawn and human nature is such that one would be all but inevitable. It has
indeed been suggested that ‘no rule of law can effectively legislate against the drawing of an
inference from a failure to testify’. Secondly, it is not mere sophistry to reason . . . that an
accused’s right to remain silent is not denied or eroded by an inference drawn from his
choice to exercise that right in circumstances where an innocent person would have chosen
to do so. It is suggested thirdly that, even if the rule permitting an adverse inference
impinged upon the right of the accused to remain silent, it is in any event probably a
justifiable limitation.134
The Constitutional Court has not expressly ruled on whether drawing an adverse
inference from silence at trial would pass constitutional muster. However, it has on more
than one occasion pronounced that trial silence may have consequences in that ‘if there
is evidence that requires a response and if no response is forthcoming . . . the Court may
be justified in concluding that the evidence is sufficient, in the absence of an
explanation, to prove the guilt of the accused’.135 The language employed by Ponnan JA
in S v Monyane136 would suggest that the Supreme Court of Appeal is prepared to
expand the ambit of negative consequences of including the fact of silence as an item of
evidence. This is clearly suggested in the following passage.
Secondly, somewhat surprisingly, the fourth appellant did not testify. The presence of his
vehicle and the evidence of the second appellant linked him to the crime scene. In those
circumstances, a reasonable expectation existed that, if there were an explanation consistent
with his innocence, it would have been proffered. He, however, refused to rise to the
challenge. For him to have remained silent in the face of the evidence was nothing short to
damning.137
It appears that in the circumstances of the case that there was sufficient evidence to
establish guilt beyond reasonable doubt without using silence as evidence.
Another difficulty that arises with drawing inferences from trial silence is: what is
the inference to be drawn if the accused remains silent on the advice of counsel?
131
See also S v Hlongwa 2002 (3) SACR 37 (T); S v Scholtz 1996 (2) SACR 40 (NC). See also SE van der
Merwe ‘The Constitutional Passive Defence Right to an Accused versus Prosecutorial and Judicial Comment on
Silence: must we follow Griffın v California’ (1994) Obiter 1. See also the Canadian case R v Noble (1997) 1
SCR 874, 6 CR (5th) 1 in which the court held that using silence as an item of evidence infringed both the
presumption of innocence and the right to remain silent.
132
S v Lavhengwa 1996 (2) SACR 453 (W).
133
W Trengove (Chaskalson et al eds) Constitutional Law of South Africa (1996) 26–14 to 26–16.
134
S v Lavhengwa (note 132 above) 487.
135
S v Thebus 2003 (2) SACR 319 (CC) [58]. See also S v Boesak 2001 (1) SA 912 (CC); S v Mokoena 2006
(1) SACR 29 (W); S v Hena 2006 (2) SACR 33 (SE); S v Mseleku 2006 (2) SACR 574 (D); cf S v Sithole 2005
(2) SACR 504 (SCA).
136
2008 (1) SACR 543 (SCA) [19].
137
Ibid.
766
This issue was skirted by the Supreme Court of Appeal in S v Tandwa138 in which
accused 1 did not testify on the advice of his legal representative. The court, taking a
similar approach to that in Monyane, held that silence could, depending on the
circumstances, give rise to an inference of guilt, ie silence could be used as an item
of evidence against the accused in establishing guilt beyond reasonable doubt, and
indeed it was such an inference that led to accused 1’s conviction. The court did not
explain how it discounted the undisputed fact that the accused remained silent on
counsel’s advice—that being so it is difficult to understand how an inference as to
guilt could be the only reasonable inference in the circumstances.
(iv) Discharge at the close of the state case

The rights to remain silent (s 35(3)(h)), not to testify during the proceedings (s 35(3)(h))
and not to be compelled to give self-incriminating evidence (s 35(3)(j)) also fall to be
considered when dealing with discharge at the close of the state case. Section 174 of the
Criminal Procedure Act 51 of 1977 reads as follows:
If at the close of the case for the prosecution at any trial, the court is of the opinion that there
is no evidence that the accused committed the offence referred to in the charge or any
offence of which he may be convicted on the charge, it may return a verdict of not guilty.
Prior to the present Constitutional dispensation there was a significant body of case
authority to the effect that the use of the word ‘may’ in s 174 of the Criminal Procedure
Act conferred a discretion on the court to refuse discharge in the absence of evidence
supporting a conviction, provided there was a ‘reasonable possibility that the defence
evidence might supplement the state case’.139 The correctness of this approach was soon
challenged when the interim Constitution came into force. Claasen J in S v Mathebula140
held that an accused’s right to freedom and security of person as well as his rights to be
presumed innocent and remain silent severely curtailed the discretion conferred by s 174
and held that a court did not have a discretion to refuse discharge when there was no
evidence tendered against the accused.141 The court expressly acknowledged that its
judgment did not lay down a general rule in those cases where there was some evidence
against the accused.
The approach taken by the Supreme Court of Appeal in S v Legote142 and S v
Lubaxa143 is consistent with that taken by Claasen J in Mathebula144 but would
appear to go further. In Legote, Harms JA held that it was clear that a court had a
duty to ensure that an unrepresented accused against whom the state had not made
out a prima facie case was discharged and the principle of equality required that this
duty be extended to the represented accused. In Lubaxa, Nugent AJA (as he was
then) held as follows:
I have no doubt that an accused person (whether or not he is represented) is entitled to be
discharged at the close of the case for the prosecution if there is no possibility of a
138
2008 (1) SACR 613 (SCA). See also S v Mavinini 2009 (1) SACR 523 (SCA).
139
See S v Shuping 1983 (2) SA 119 (BSC) 120; R v Kritzinger 1952 (2) SA 402 (W); S v Zimmerie 1989 (3)
SA 484 (C); S v Campbell 1991 (1) SACR 435 (Nm).
140
S v Mathebula 1997 (1) SACR 10 (W).
141
This approach was not uniformly adopted by the High Court. See eg S v Makofane 1998 (1) SACR 603 (T).
142
S v Legote 2001 (2) SACR 179 (SCA).
143
S v Lubaxa 2001 (2) SACR 703 (SCA). See also S v Zwezwe 2006 (2) SACR 599 (N); S v Agliotti 2011 (2)
SACR 437 (GSJ). Cf S v Masondo: In Re S v Mthembu 2011 (2) SACR 286 (GSJ).
144
S v Mathebula (note 140 above).
767
conviction other than if he enters the witness box and incriminates himself. The failure to
discharge an accused in those circumstances, if necessary mero motu, is in my view a breach
of the rights that are guaranteed by the Constitution and will ordinarily vitiate a conviction
based exclusively upon his self-incriminatory evidence.145
The dictum of Nugent AJA, albeit obiter, casts some doubt as to whether the relevant
threshold to be passed in order to avoid discharge is that of a prima facie case146 and
clearly advocates a different approach in respect of co-accused. The court found that the
right to be discharged did not necessarily arise from the rights to be presumed innocent,
to remain silent or not to testify but rather from the constitutional rights to dignity and
personal freedom which require the existence of a ‘“reasonable and probable” cause to
believe that the accused is guilty’.147 However, the court appeared to have difficulty in
drawing a clear line between the constitutional rights to dignity, personal freedom and a
fair trial in concluding that the protection afforded by the rights to dignity and personal
freedom will be ‘pre-eminently’ eroded ‘where the prosecution has exhausted the
evidence and a conviction is no longer possible except by self-incrimination’.148
Presumably it is the privilege against self-incrimination which underlies the court’s
finding that ‘[t]he same considerations do not necessarily arise . . . where the
prosecution’s case against one accused might be supplemented by the evidence of a
co-accused’.149 The express reason given by the court is that as ‘[t]he prosecution is
ordinarily entitled to rely upon the evidence of an accomplice and it is not self-evident
why it should necessarily be precluded from doing so merely because it has chosen to
prosecute more than one person jointly’.150 However, it is equally not self-evident why
the rights to privacy and freedom of a person cease to be infringed merely because the
prosecution has chosen to prosecute more than one person jointly. It could be argued
that the latter scenario is somewhat more palatable in that refusal of discharge need not
necessarily be premised on the possibility that the accused will incriminate himself but
rather that the co-accused will complete the prosecution task.151 The Supreme Court of
Appeal has made it clear that Luxaba may not be invoked as a blanket precedent for
refusing discharge on the application of a co-accused and that discharge may not be
refused where there is ‘no reasonable basis for an expectation that his co-accused might
incriminate him’.152
(c) The right not to be compelled to make any confession or admission

that could be used in evidence; the right not to be compelled to give
self-incriminating evidence and the right to legal representation
145
146
The subsequent in dictum in S v Nkosi 2011 (2) SACR 482 (SCA) [24] would suggest that the threshold is
indeed that of a prima facie case.
147
Ibid [19].
148
Ibid.
149
Ibid [20]. See also S v Tusani 2002 (2) SACR 468 (TD); S v Tsotetsi (2) 2003 (2) SACR 638 (W).
150
Lubaxa (note 143 above) [20].
151
In S v Zuma 2006 (2) SACR 191 (W), Van der Merwe J referred to Lubaxa and refused discharge on the
basis that he was not convinced of the accused’s innocence beyond a reasonable doubt. This is perhaps a
misapplication of Lubaxa and is contrary to the presumption of innocence that requires the state to prove guilt
beyond a reasonable doubt.
152
S v Nkosi 2011 (2) SACR 482 (SCA).
768
(i) The right to legal representation and the privilege against

self-incrimination
Arrested persons have the right not to be compelled to make any confession or
admission that could be used in evidence against them (s 35(1)(c)). Accused persons
have the right not to be compelled to give self-incriminating evidence (s 35(3)(j)).
Detainees and accused (and inevitably arrested persons as at the moment of arrest they
will also be detained) have the right ‘to choose, and to consult with, a legal practitioner,
and to be informed of this right promptly’ (s 35(2)(b) and s 35(3)(f)).153 They must also
all be formed of the right ‘to have a legal practitioner assigned to . . . [them] by the state
and at state expense, if substantial injustice would otherwise result’ (s 35(2)(c) and
s 35(3)(g)).154 These constitutional provisions are consonant with the common law
which is also reflected in s 73 of the Criminal Procedure Act 51 of 1977.
In the United States the Fifth Amendment, which gives constitutional protection to
the privilege against self-incrimination, was interpreted in Miranda v Arizona155 as
extending to incriminating statements made by persons in police custody.156 In the
Miranda judgment the court, referring with approval to an earlier case Escobedo v
Illinois,157 found the right to counsel was essential in order to protect the right against
self-incrimination. The court’s ruling in Miranda can be summarised as follows:
statements obtained during custodial interrogation of the accused may not be admitted
into evidence unless the prosecution can show the appropriate procedural safeguards
were used to secure the privilege against self-incrimination. The appropriate procedural
safeguards are that a person must be warned that she has the right to remain silent, that
any statement she makes may be used in evidence against her, and that she has a right to
the presence of a legal representative. The failure to inform an accused of these rights
will generally result in the exclusion of testimonial communications from evidence.158
The fact that an accused may be aware of her rights without having been warned, will
not automatically affect the inadmissibility of the evidence.159 The link between the
right to counsel and the privilege against self-incrimination (and other related rights)
was succinctly stated by Froneman J in S v Melani:160
The purpose of the right to counsel and its corollary to be informed of that right . . . is thus to
protect the right to remain silent, the right not to incriminate oneself and the right to be
presumed innocent until proven guilty. Section 25(2) and 25(3) of the [interim] Constitution
153
In Mhlekwa v Head of the Western Tembuland Regional Authority 2000 (2) SACR 596 (TK) the court held
that s 7(1) of the Regional Authority Courts Act infringed s 35(3)(f) insofar as it provided that neither the
complainant nor the accused could be legally represented during criminal proceedings in a regional authority
court.
154
The constitutional right to legal representation is reflected in s 73 of the Criminal Procedure Act 51 of 1977.
The constitutional right to legal representation is not restricted to South African citizens and in S v Thomas 2001
(2) SACR 608 (W) the court held that it extends to non-South African citizens accused in South Africa.
155
384 US 436 (1966).
156
See further G Smith ‘The Threshold Question in Applying Miranda: What Constitutes Custodial
Interrogation?’ 1974 (25) South Carolina LR 699 at 735; Harris v New York 401 US 222 (1970); Rhode Island v
Innis 446 US 291 (1980); New York v Quarles 467 US 649 (1984).
157
Escobedo v Illinois 378 US 478 (1964).
158
See S v Melani 1996 (1) SACR 335 (E); S v Gasa 1998 (1) SACR 446 (D); S v Marx 1996 (2) SACR 140
(W); S v Viljoen 2003 (4) BCLR 450 (T). However, such exclusion is not automatic under s 35(5)—see S v
Lottering 1999 (12) BCLR 1478 (N); S v Soci 1998 (2) SACR 275 (E). See also Schwikkard & Van der Merwe
(note 33 above) 229.
159
See generally S v McKenna 1998 (1) SACR 106 (C).
160
S v Melani (note 158 above) 348i–349a.
769
make it abundantly clear that this protection exists from the inception of the criminal
process, that is on arrest, until its culmination up to and during the trial itself. This protection
has nothing to do with the need to ensure the reliability of evidence adduced at the trial. It
has everything to do with the need to ensure that an accused is treated fairly in the entire
criminal process: in the ‘gatehouse’ of the criminal justice system (that is the interrogation
process), as well as in its ‘mansions’ (the trial court).161
There have been conflicting views as to whether it is necessary to advise a person of her
right to legal representation at every pre-trial stage, the most pragmatic approach is that
in each case the crucial inquiry should be whether the accused, after having been
apprised of her rights on arrest, was in a position to decide voluntarily how to exercise
her rights at each subsequent pre-trial procedure.162
The common law did not recognise a right to legal representation for those unable
to afford a lawyer.163 The Constitution only affords detained and accused persons the
right to be provided with legal assistance at state expense if substantial injustice
would ensue if the accused was not represented,164 and if the accused cannot afford
the legal representation required for a fair trial.165
It can be argued that legal representation is necessary to uphold the privilege
against self-incrimination (and associated rights) and the protection of the right not
to incriminate oneself is necessary to ensure a fair trial; therefore a person’s access
to legal representation should not be dependent on her income. (Obviously, this is
also so if full recognition were to be given to the constitutional guarantee of
equality.) The logical conclusion to this line of reasoning is: if the state finds itself
unable to provide legal representation to an arrested, detained or accused person, the
police must refrain from interrogating persons who desire legal representation but
who are not in a position to obtain it.166
There can be little doubt that the reason for imposing a restriction on the
substantive right to legal presentation is the concern that the South African state
simply does not have the resources to provide legal representation for every indigent
accused. As an absolute right, the substantive right to legal representation might
paralyse an already overburdened criminal justice system. Factors that will be taken
into account in determining whether substantial injustice would result through the
absence of legal representation include:167 the complexity of the case, severity of the
potential sentence,168 the ignorance and indigence of the accused,169 as well as the
161
See also S v Mathebula 1997 (1) SACR 10 (W) 19f–20a.
162
See S v Shaba 1998 (1) SACR 16 (T); S v Shongwe 1998 (2) SACR 321 (T); S v Malefo 1998 (1) SACR
321 (T); Shabalala v S 1999 (4) All SA 583 (N); S v Soci 1998 (2) SACR 275 (E), S v Ngcobo 1998 (10) BCLR
1248 (N); S v Mfene 1998 (9) BCLR 115 (N), S v Gumede 1998 (5) BCLR 530 (D); S v Nombewu 1996 (2) SACR
396 (E). Cf S v Mathebula 1997 (1) SACR 10 (W); S v Marx 1996 (2) SACR 140 (W). See also S v Ndlovu, S v
Sibisi 2005 (2) SACR 645 (W) regarding the ambit of the advice to be given in respect of the right to legal
representation. See also S v Orrie (note 16 above).
163
S v Rudman; S v Mthwana 1992 (1) SA 343 (A).
164
Section 35(2)(c) and s 35(3)(g).
165
Legal Aid Board v The State 2011 (1) SACR 166 (SCA).
166
But compare Mgcina v Regional Magistrate Lenasia 1997 (2) SACR 711 (W).
167
See generally Pennington v Minister of Justice 1995 (3) BCLR 270 (C); Msila v Government of the RSA
1996 (3) BCLR 362 (C); S v Khanyile 1988 (3) SA 795 (N).
168
In S v Moos 1998 (1) SACR 372 (C) the court held that substantive injustice would occur if the charge was
one which would attract a sentence of imprisonment and the accused did not have legal representation. See also
S v Du Toit 2005 (2) SACR 411 (T).
169
See S v Vermaas, S v Du Plessis 1995 (3) SA 292 (CC); S v Ambros 2005 (2) SACR 211 (C).
770
likelihood of success on appeal.170 An accused should be given a reasonable

opportunity to apply to the Legal Aid Board for legal assistance.171 Although a
decision of the Legal Aid Board may be reviewed on the ground of reasonableness,
the courts will be cautious about overturning a decision of the Legal Aid Board, an
institute specifically designated to make funds available for legal representation to
indigent accused.172
Where the potential for substantial injustice is clear a trial may not proceed in the
absence of legal representation unless the accused has made an informed decision to
waive her right to legal representation.173
Where an accused is unrepresented it is well established that presiding officers
have a duty to ensure that the accused is informed of his rights,174 including the right
to legal representation, and this should be done prior to the commencement of the
trial.175 Depending on the seriousness and complexity of the charge, or of the
applicable legal rules, an accused should not only be told of his right to legal
representation, he should also be encouraged to exercise it.176 Where there is the
possibility of a lengthy term of imprisonment an accused should be advised of this
possibility and encouraged to avail himself of the services of a legal
representative.177 A presiding officer must also ensure that the accused is aware of
and understands his right to legal representation at state expense178 and, where
appropriate, of his right to appeal against the refusal of legal aid, and his right to
request the court to order that legal representation be provided.179 The presiding
officer must also be satisfied that the accused’s choice not to be represented is an
informed one.180 An accused must be given a reasonable opportunity to obtain legal
aid.181 If an accused who initially declines legal representation subsequently changes
170
See Legal Aid Board v S (note 165 above); Ehrlich v CEO Legal Aid Board 2006 (1) SACR 346 (E).
171
S v Lusu 2005 (2) SACR 538 (E).
172
Legal Aid Board v S (note 165 above). This is a somewhat different approach to earlier cases in which it
was held that the fact that an accused does not meet the means test set by the Legal Aid Board will not negate his
constitutional right to legal representation at state expense (S v Cornelius 2008 (1) SACR 96 (C); S v Makhandela
2007 (2) SACR 620 (W)) and this should be explained to the accused (S v Ndlovu; S v Sibisi 2005 (2) SACR 645
(W)). See also S v Du Toit (2) 2005 (2) SACR 411 (T).
173
S v Manuel 2001 (4) SA 11351 (W).
174
This includes a proper explanation of the proceedings and concepts such as ‘cross-examination’ and
‘opportunity to address the court’ as well as minimum sentencing provisions. See S v Lekhetho 2002 (2) SACR
13 (O). See also S v Matladi 2002 (2) SACR 447 (T); S v Njikuza 2002 (2) SACR 481 (C); S v Mathole 2002 (2)
SA 484 (T); S v Shiburi 2004 (2) SACR 314 (W); S v Lusu 2005 (2) SACR 538 (E) ; S v May 2005 (2) SACR 331
(SCA); S v Fielies 2006 (1) SACR 302 (C); S v Ndou 2006 (2) SACR 497 (T); S v Zwezwe 2006 (2) SACR 599
(N); S v Mseleku 2006 (2) SACR 574 (D); S v Hlangabezo 2008 (1) SACR 218 (E); S v Mabuza 2009 (2) SACR
435 (SCA); S v Jacobs 2011 (1) SACR 505 (ECG).
175
S v Radebe, S v Mbonani 1998 (1) SACR 191 (T). See also S v Van Heerden en Ander Sake 2002 (1) SACR
409 (T); S v Thusi 2002 (12) BCLR 1274 (N); S v Mdali 2009 (1) SACR 259 (C).This duty is equally applicable
in bail and sentencing proceedings, see S v Nzima 2001 (2) SACR 345 (C); Moetjie v The State 2009 (1) SACR
95 (T).
176
S v Radebe, S v Mbonani 1998 (1) SACR 191 (T) 196g. See also S v Manale 2000 (2) SACR 666 (NCD);
S v Nkondo 2000 (1) SACR 358 (W); S v Ambros 2005 (2) SACR 211 (C); S v Sikhipha 2006 (2) SACR 439
(SCA); S v Mbhense 2009 (1) SACR 640 (N); S v Owies 2009 (2) SACR 107 (CPD).
177
S v Ndlovu 2001 (1) SACR 204 (W); S v Mbambo 1999 (2) SACR 421 (W); S v Dyani 2004 (2) SACR 365
(E). See also S v Tshidiso 2002 (1) SACR 207 (W); S v Ndlovu, S v Sibisi 2005 (2) SACR 645 (W).
178
S v Visser 2001 (1) SACR 401 (C); S v Monyane and Others 2001 (1) SACR 115 (T); S v Ambros 2005 (2)
SACR 211 (C); S v Ndlovu, S v Sibisi 2005 (2) SACR 645 (W); S v Balatseng 2005 (2) SACR 28 (B).
179
S v Ambros 2005 (2) SACR 211 (C); S v Du Toit (2) 2005 (2) SACR 411 (T).
180
S v Solomons 2004 (1) SACR 137 (C).
181
S v Lusu 2005 (2) SACR 538 (E); S v Saule 2009 (1) SACR 196 (CkHC).
771
his mind he must be given the opportunity to obtain legal representation.182

Similarly, if an accused’s legal representative withdraws the accused must be advised
of his right to apply for a postponement to enable another legal representative to be
appointed.183 The duty to provide an accused with a fair opportunity to obtain legal
representation also arises in summary proceedings.184 All that being said, the failure
to inform an accused of his right to legal representation will only result in an unfair
trial if it can be shown ‘that the conviction has been tarnished by the irregularity’.185
The right to have legal representation at state expense does not include the right to
have a legal representative of choice.186 Similarly, if a legal representative
withdraws, then the accused must be given the opportunity of applying to the Legal
Aid Board for the appointment of another legal representative.187
The constitutional right to legal representation specified in s 35 of the Constitution
is restricted to arrested, detained and accused persons.188
(ii) Admissions and confessions

The law as it stands makes a distinction between admissions and confessions in respect
of admissibility in criminal trials. The only requirement that needs to be met before an
admission will be accepted into evidence is that it must be made voluntarily.189
‘Voluntary’ in this context has a very restricted meaning and an admission will be found
to be involuntary only if it has been induced by a promise or threat proceeding from a
person in authority.190 Section 35(1)(c) of the Constitution may well provide the courts
with the opportunity for departing from the artificial and technical common-law
interpretation of the requirement of ‘voluntariness’. Section 35(1)(c) reflects the
accused’s pre-trial privilege against self-incrimination. It provides that an arrested
person shall have the right ‘not to be compelled to make any confession or admission
that could be used in evidence against’ him or her.
There is nothing in s 35(1)(c) to suggest that admissions and confessions should be
treated differently. Section 217 of the Criminal Procedure Act requires a confession to
be made freely and voluntarily whilst the maker is in his sound and sober senses and
without having been unduly influenced thereto. In R v Barlin191 Innes CJ held that the
requirement of undue influence pertaining to confessions was elastic and went beyond
the ambit of voluntariness, which was restricted to an inducement, threat or promise
coming from a person in authority. It can be argued that the constitutional entrenchment
of the principles of due process and the right to a fair trial in s 35(3) as well as the
wording of s 35(1)(c), which draws no distinction between admissions and confession,
favours an interpretation of voluntariness which is indistinguishable from undue
influence.
182
S v Pitso 2002 (2) SACR 586 (C). See also S v Gedezi 2010 (2) SACR 363 (WCC).
183
Mafongosi v Regional Magistrate, Mdantsane 2008 (1) SACR 366 (Ck).
184
S v Solomons 2004 (1) SACR 137 (C).
185
S v May 2005 (2) SACR 331 (SCA). See also Htlantlalala v Dyanti NO 1999 (2) SACR 541 (SCA).
186
See S v Halgryn 2002 (2) SACR 211 (SCA). See also S v Manguanyama 1996 (2) SACR 283 (E); R v
Mochebelele 2010 (1) SACR 256 (LesA).
187
S v Kok 2005 (2) SACR 240 (NC).
188
Hamata v Chairperson, Peninsula Technikon Internal Disciplinary Committee 2002 (5) SA 449 (SCA).
189
Section 219A of the Criminal Procedure Act 51 of 1977.
190
R v Barlin 1926 AD 459.
191
Ibid.
772
In S v Agnew,192 Foxcroft J questioned the artificial distinction drawn between

confessions and admissions. He noted that, historically, one of the reasons for the
distinction was the assumption that admissions need not be guarded against to the same
extent as confessions.193 However, in many instances admissions could be as damaging
as confessions.194 The court held ‘[i]f full effect is given to the maxim that no one should
be obliged to incriminate himself, then it is difficult to understand how incriminating
statements contained in confessions should be treated differently from words amounting
to admissions only’.195 The obvious reason for taking this approach is that all the
reasons for excluding involuntary confessions apply equally to involuntary admissions.
Involuntary confessions and admissions are excluded not only because they are
potentially unreliable,196 but also because a conviction based on an involuntary
admission or confession would be one obtained without due process of law.197 The
admission of a forced admission or confession would also be contrary to the right not to
incriminate oneself.198 Both coerced admissions and confessions need to be excluded in
order to protect citizens from abuse.199
The South African Law Commission has recommended that admissions, confessions
and pointings-out should all be subject to the same requirements of admissibility,
namely that they be made freely and voluntarily, in sound and sober senses and without
undue influence.200 The constitutionality of the distinction made between admissions
and confessions was raised in S v Molimi.201 However, the court found it unnecessary to
deal with the issue in the circumstances of the case.202
The various rights enumerated in s 35 also provide entirely different grounds for the
exclusion of admissions and confessions203 through the application of s 35(5) which
confers a discretion on the court to exclude evidence obtained in violation of any right in
the Bill of Rights.204 Where an accused alleges that an admission or confession was
obtained in manner that violated a right contained in the Bill of Rights the state will bear
the onus of proving the contrary beyond a reasonable doubt.205
(iii) Ascertainment of bodily features

Section 37(1) of the Criminal Procedure Act 51 of 1977 authorises police officials to
take fingerprints, palm-prints or footprints of any person who has been arrested or
charged. The police are also authorised to take such steps as are necessary to ascertain
whether the body of any arrested person has any mark, characteristic or distinguishing
192
S v Agnew 1996 (2) SACR 535 (C).
193
S v Agnew 1996 (2) SACR 535 (C), 538.
194
Compare R v Xulu 1956 (2) SA 288 (A).
195
S v Agnew (note 192 above).
196
See S v Radebe 1968 (4) SA 410 (A) 418–419.
197
Brown v Allen 344 US 443.
198
See R v Duetsimi 1950 (3) SA 674 (A); S v Sheehama 1991 (2) SA 860 (A).
199
See S v January 1994 (2) SACR 801 (A).
200
South African Law Commission Project 73 (note 93 above).
201
2008 (2) SACR 76 (CC).
202
See PJ Schwikkard 2008 Annual Survey 874 for a more extensive discussion of this case.
203
This includes evidence obtained as a consequence of a pointing-out which might otherwise be admitted in
terms of s 218 of the Criminal Procedure Act 51 of 1977. See S v Matlou 2010 (2) SACR 342 (SCA). The
exclusion of unconstitutionally obtained evidence is discussed below.
204
See eg S v Agnew (note 192 above); S v Mphala 1998 (1) SACR 388 (W); S v Lottering 1999 (12) BCLR
1478 (N); S v Soci 1998 (2) SACR 275 (E).
205
S v Mgcina 2007 (1) SACR 82 (T).
773
feature or shows any condition or distinctive appearance. Obviously evidence of this

nature might incriminate the accused. The question then arises whether s 37 is in conflict
with the constitutional right not to be compelled to make an admission which can be
used in evidence against the maker. Prior to legislative authorisation there was some
authority for the view that the ascertainment of bodily features, without the consent of
an accused, infringed the common-law privilege against self-incrimination. For
example, in R v Maleke206 the court refused to admit evidence of a footprint compelled
by force. Krause J expressed his objection to the admission of such evidence as follows:
‘[I]t compels an accused person to convict himself out of his own mouth; that it might
open the door to oppression and persecution of the worst kind; that it is a negation of the
liberty of the subject and offends against our sense of natural justice and fair play’.207
However, this line of reasoning was firmly reversed by the Appellate Division in Ex
parte Minister of Justice: In re R v Matemba.208 The court considered the admissibility
of evidence of a palm-print taken by compulsion and found that the privilege against
self-incrimination applied only to testimonial utterances. Watermeyer JA held:
Now, where a palm-print is being taken from an accused person, he is, as pointed out by
Innes CJ in R v Camane (1925 AD 570 at 575), entirely passive. He is not being compelled
to give evidence or to confess, any more that he is being compelled to give evidence or
confess when his photograph is being taken or when he is put upon an identification parade
or when he is made to show a scar in court. In my judgement, therefore, neither the maxim
nemo tenetur se ipsum prodere nor the confession rule make inadmissible palm-prints
compulsorily taken.209
This reasoning was also invoked to justify the admission of evidence of a thing or place
pointed out by the accused, even in circumstances where the pointing-out was
coerced.210 In S v Sheehama211 the Appellate Division found this reasoning to be
untenable and held that ‘a pointing-out is essentially a communication by conduct and,
as such, is a statement by the person pointing-out’. Consequently, a pointing-out, like
any other extra-judicial admission, has to be made voluntarily before it will be admitted
into evidence. However, although a pointing-out, like the ascertainment of bodily
features, usually results in the production of ‘real’ evidence, it can be distinguished from
the latter in that it involves some degree of active or communicative conduct.212
In S v Huma (2),213 Claassen J held that the taking of fingerprints did not
constitute testimonial evidence by the accused and was therefore not in conflict with
the privilege against self-incrimination.214 The court clearly found the majority
decision in Schmerber v California215 very persuasive. In this case the majority of
the United States Supreme Court held that the Fifth Amendment privilege against
self-incrimination relates only to the testimonial or communicative acts of the
206
R v Maleke 1925 TPD 491.
207
Ibid 534. See also Gooprushad v R 1914 35 NLR 87; R v B 1933 OPD 139.
208
Ex parte Minister of Justice: In re R v Matemba 1941 AD 75.
209
Ibid 82–83.
210
In terms of s 218 of the Criminal Procedure Act 51 of 1977.
211
S v Sheehama 1991 (2) SA 860 (A).
212
See S v Binta 1993 (3) SACR 553 (C).
213
S v Huma (2) 1995 (2) SACR 411 (W). See also S v Maphumulo 1996 (2) SACR 84 (N); Msomi v
Attorney-General of Natal 1996 (8) BCLR 1109 (W).
214
S v Huma (note 213 above) 419.
215
Schmerber v California 384 US 575 (1966). Cf R v Stillman [1997] 1 SCR 607.
774
accused and does not apply to non-communicative acts such as submission to a

blood test. This approach was adopted by the Supreme Court of Appeal in Levack v
Regional Magistrate Wynberg216 in which it held that compelling an accused to
submit a voice sample infringed neither the right to remain silent or the right not to
give self-incriminating evidence. In S v Orrie, the High Court found that the
involuntary taking of a blood sample for the purposes of DNA profiling infringed
both the right to privacy and the right to bodily security and integrity but that the
infringement was justifiable.217 Desai J, in Minister of Safety and Security v Gaqa,218
in confirming an order compelling the respondent to submit himself to an operation
for the removal of a bullet from his leg rejected the respondent’s argument that to do
so would infringe his constitutional right not to incriminate himself. The court held
that ss 27 and 37 of the Criminal Procedure Act 51 of 1977 sanctioned the violence
necessary to remove the bullet and although these procedures constituted a serious
infringement of dignity and bodily integrity they met the requirements of the
limitation clause. A similar application was made to the court in Minister of Safety
and Security v Xaba.219 It appears that the respondents’ arguments were restricted to
the right to be free from all forms of violence (s 12(1)(c)) and the right to have
security and control over one’s body (s 12(2)(b)). Southwood AJ held that the
conclusion of the court in Gaqa that ss 27 and 37 of the Criminal Procedure Act
permitted a police official to use the necessary violence to obtain the surgical
removal of a bullet was clearly wrong. Consequently, in the absence of a law of
general application authorising the constitutional infringements the requirements of
the limitation clause could not be met.
Can a clear distinction be made between the ascertainment of bodily features and
testimonial or communicative statements? Black and Douglas JJ, dissenting in
Schmerber v California,220 thought not:
[T]he compulsory extraction of a petitioner’s blood for analysis so that the person who
analysed it could give evidence to convict him had both a ‘testimonial’ and a
‘communicative nature’. The sole purpose of this project which to be successful was to
obtain ‘testimony’ from some person to prove that the petitioner had alcohol in his blood at
the time he was arrested. And the purpose of the project was certainly ‘communicative’ in
that the analysis of the blood was to supply information to enable a witness to communicate
to the court and jury that the petitioner was more of less drunk.221
The distinction between ‘testimonial’ and ‘communicative’ conduct is perhaps
necessary in the absence of a limitation clause to take into account the very crucial role
the ascertainment of bodily features plays in the investigation of crime. However, s 36
of the Constitution permits the South African courts to take a more generous approach in
determining the content of the right against self-incrimination without compromising
the effective administration of the criminal justice system.
Another question that arises in relation to the ascertainment of bodily features is
whether an accused must be advised of his or her right to legal representation prior
216
Levack v Regional Magistrate Wynberg 2003 (1) SACR 187 (SCA).
217
S v Orrie (note 16 above) [20].
218
Minister of Safety and Security v Gaqa 2002 (1) SACR 654 (C).
219
Minister of Safety and Security v Xaba 2004 (1) SACR 149 (D).
220
Schmerber v California 384 US 575 (1966).
221
Schmerber (note 220 above) 921. The minority judgment in Schmerber was preferred by the Canadian
Supreme Court in R v Stillman 1997 (42) CRR (2d) 189.
775
to an identification parade being held. At present it appears to be an open question.

Leveson J, in S v Ngwenya222 held that the right to a fair trial did not require the
accused to be advised of his right to legal representation at every stage of the
pre-trial process and that the passive role played by the accused at the identification
parade did not involve any process of self-incrimination.223 In S v Mokoena224 the
court held that the failure to advise the accused of his right to legal representation at
an identity parade merely affected the weight of the evidence and not its
admissibility.225 However, in S v Mhlakaza226 the court found the failure to advise
the accused of their right to representation coupled with the accused’s express
objection to the absence of any legal representation, rendered the evidence of the
identification parade inadmissible; this approach has received little support in
subsequent cases.
32.4 AN ARRESTED AND DETAINED PERSON’S RIGHT TO BE PLACED UNDER

JUDICIAL AUTHORITY AND TO BE RELEASED FROM DETENTION
The rights regarding placement under judicial authority are to be found in s 35(1)(d), (e),
and (f) and s 35(2)(a) and (d) of the Constitution. These limits on the police’s powers to
detain without judicial authorisation serve to protect the right to freedom and security of
the person. They do so by requiring the police to give reasons for the accused’s arrest
and/or continued detention, to detain only for the purpose of trial or other just cause, and
by limiting the opportunity for cruel, inhuman or degrading treatment.227 A consequence
of these requirements is that the police must apply their minds to the necessity of
detaining the accused.228 This duty also extends to prosecutors in determining whether
further detention is necessary.229
The constitutional right to be brought before a court as soon as reasonably possible is
supported by the procedures after arrest mandated by s 50 of the Criminal Procedure Act
51 of 1977. Section 50(1)(c) and (d)(i) contains essentially the same provisions as
s 35(1)(d). Prior to the insertion of s 50(6)(b), which specifies that arrested persons are
‘not entitled to be brought to court outside ordinary court hours’, it was recognised that
accused persons were entitled to bring bail applications outside of court hours and
before the expiration of the 48-hour period.230 However, subject to the proviso in respect
of court hours, the 48 hours represent an outer limit. If it is not reasonably possible to
222
S v Ngwenya, 1998 (2) SACR 503 (W). See also S v Zwayi 1997 (2) SACR 772 (Ck); S v Monyane 2001 (1)
SACR 115 (T); S v Thapedi 2002 (1) SACR 598 (T). See also S v Hlalikaya 1997 (1) SACR 613 (E) in which the
court held that there was no right to legal representation at a ‘photo identification’ parade.
223
S v Ngwenya (note 222 above) 509. However, the court in S v Thapedi 2002 (1) SACR 598 (T) referring to
US v Wade 228 US 214, acknowledged that there may well be circumstances in which the right to a fair trial
would require that the accused be represented at an identity parade.
224
S v Mkloena 1998 (2) SACR 642 (W).
225
Compare S v Mphala 1998 (1) SACR 654 (W). See further SE van der Merwe 1998 Stell LR where case
law in South Africa, the United States and Canada is discussed and compared.
226
S v Mhlakaza 1996 (2) SACR 187 (C). See also S v Mathebula 1997 (1) SACR 10 (W).
227
See generally Steytler (note 42 above) 125–126.
228
Mvu v Minister of Safety and Security 2009 (2) SACR 291 (GSJ); Tobani v Minister of Correctional
Services NO [2002] 2 All SA 318 (SE); Botha v Minister of Safety and Security & January v Minister of Safety
and Security 2012 (1) SACR 305 (ECP) [31].
229
Botha v Minister of Safety and Security & January v Minister of Safety and Security 2012 (1) SACR 305
(ECP) [33].
230
See Twayie v Minister van Justisie 1986 (2) SA 101 (O); Garces v Fouche 1998 (2) SACR 451 (NmHc).
776
bring the accused before the court within 48 hours the accused must be released on the
expiration of the 48-hour period. There is a constitutional obligation on the authorities to
bring an arrested person before court as soon as reasonably possible; the meaning of
‘reasonably possible’ will depend on the circumstances of each case.231 For example,
when an arrested person is found to suffer from some chronic medical ailment it is more
reasonable to demand that public officials make a greater effort to bring that person to
the court before the expiration of the 48-hour period than would be the case with a
healthy accused.232
Once the 48 hours have passed the further detention of the accused becomes
unconstitutional unless in terms of s 35(1)(e) of the Constitution the arrestee is charged
in court and provided with sufficient reasons for his or her continued detention.233 The
provisions of s 35(1)(e) are reflected in s 50(1) of the Criminal Procedure Act. It is not
necessary that a detailed formal charge be put to the accused but there must be sufficient
information for the court and the accused to determine the nature of the offence
allegedly committed and at least an outline of the incriminating facts.234 If there is no
formal or informal charge to justify the continued detention of the arrestee he or she
must be released. If the arrestee is not released he or she will be in a position to
challenge his or her continued detention in terms of s 35(2)(d) which entrenches the
common-law remedy of habeas corpus.235
An unlawful arrest also infringes a person’s rights to dignity, and freedom and
security of person.236 The right to freedom and security of person will clearly be
infringed where the relevant authorities fail to comply with court directives to release
the accused.237 The detention of an awaiting-trial prisoner in and on the same conditions
as a convicted prisoner was held by the Constitutional Court in Zealand v Minister of
Justice and Constitutional Development238 to infringe the right to freedom and security
of person.239
Prior to the Supreme Minister of Safety and Security v Sekhoto240 a number of High
Courts had held that an arrest carried out in terms of the Criminal Procedure Act 51 of
1977 did not necessarily justify detention of an accused where there were less intrusive
231
See eg Prinsloo v Nasionale Vervolgingsgesag 2011 (1) SACR 196 (GNP).
232
Hannah J in Garces v Fouche 1998 (2) SACR 451 (NmHc) at 457e noted: ‘to my mind justice dictates that
in the appropriate case a person should have a right to apply for bail outside normal hours’. At 457j he stated: ‘I
must emphasise, however, that real grounds for urgency must exist before a court will hear a bail application
outside normal hours. This is a matter which must be decided by magistrates on a case by case basis.’
233
See Steytler (note 42 above) 128.
234
See S v Mbele 1996 (1) SACR 212 (W); Minister of Law and Order v Kader 1991 (1) SA 41 (A);
Prokureur-Generaal, Vrystaat v Ramokhosi 1997 (1) SACR 127 (O); Isaacs v Minister van Wet en Orde 1996 (1)
SACR 314 (A).
235
See S v Mbele (note 234 above).
236
Sections 10 and 12 of the Constitution. See also SWEAT v Minister of Safety and Security 2009 (2) SACR
417 (WCC); Minister of Safety and Security v Sekhoto 2010 (1) SACR 388 (FB). A third party’s constitutional
rights may be a factor taken into account in determining whether an accused should be released on bail, for
example, ‘the constitutionally protected interests of a minor child’, see S v Petersen 2008 (2) SACR 355 (CPD)
at [63].
237
Minister of Justice and Constitutional Development v Zealand 2007 (2) SACR 401 (SCA).
238
2008 (2) SACR 1 (CC) [32] and [34]. See also art 10(2) of the International Covenant of Civil and Political
Rights.
239
Setting bail without proper consideration of the accused’s resources may be tantamount to refusal of bail
and in certain circumstances infringe the right to freedom. See eg S v Fhetani 2007 (2) SACR 590 (SCA).
240
2011 (1) SACR 315 (SCA).
777
means of securing his or her attendance at court.241 Harms DP, in Sekhoto, after careful
consideration of how the constitutional directive in s 39(2) to interpret legislation in a
manner that promotes the spirit, purport and objects of the Bill of Rights, concluded that
a number of High Courts had erred by reading into s 40(1)(b) this fifth jurisdictional
fact. The Supreme Court of Appeal held that absent a finding of unconstitutionality the
courts ‘were not entitled to read anything into’ the clear text of s 40(1)(b). Further, that
an arrest in terms of s 40(1)(b) could not be said to be arbitrary or without just cause,242
consequently there appeared to be no ground for a constitutional challenge. The court’s
inquiry did not end here. The court, making a careful distinction between jurisdictional
fact and discretion, noted that a peace officer was not obliged to effect an arrest when the
circumstances set out in s 40(1)(b) arose; he or she had discretion whether or not to do
so. This discretion, the court held, is required to be exercised in a manner that is
objectively rational.243 The court found that in the circumstances of the particular case
and noting the seriousness of the offence, the peace officer had exercised his discretion
rationally.
The onus of proof rests on the state to prove that it has exercised the power of arrest
and detention (including further detention) lawfully.244 This onus must be discharged on
a balance of probabilities and failure to discharge the onus will lead to the release of the
accused.245 The court in Sekhoto246 considered the appropriate allocation of the onus in
respect of establishing the rational exercise of a peace officer’s discretion. Harms DP
applying past precedent held that this was an instance in which the pleadings might give
rise to two separate onuses. Once the arrestor had established the jurisdictional facts
justifying an arrest in terms of s 40(1)(b), then a party alleging an irrational exercise of
an arrestor’s s 40(1)(b) discretion bears the onus of establishing the absence of
rationality. Taking into account that a party alleging an infringement of a right in the Bill
of Right bears the burden of proving such infringement, the court held that the common
law in requiring the arrestee to prove irrationality on the part of the arrestor was not
inconsistent with the Constitution. The court, noting that a person challenging a parole
decision or the refusal of presidential pardon bore the burden of proof, concluded that it
was irrelevant whether it was the right to freedom which was at stake. However, these
two examples can also be distinguished from arrest without a warrant as a person
seeking parole or a presidential pardon has already been deprived of his or her freedom
by a court after guilt beyond a reasonable doubt has been established.
The court also held that, bearing in mind that the allocation of the onus took place in
the context of civil proceedings, considerations ‘of policy, practice and fairness’
dictated that the arrestee should bear the burden of proving rationality, and this was an
241
See Louw v Minister of Safety and Security 2006 (2) SACR 178 (T); Ralekwa v Minister of Safety &
Security 2004 (1) SACR 131 (T); Gellman v Minister of Safety & Security 2008 (1) SACR 446 (W); Le Roux v
Minister of Safety & Security 2009 (2) SACR 252 (KZP); Ramphal v Minister of Safety & Security 2009 (1)
SACR 211 (E); Mvu v Minister of Safety & Security 2009 (2) SACR 292 (GSJ); S v Brown 2009 (1) SACR 218
(C); Theobald v Minister of Safety and Security 2011 (1) SACR 379 (GSJ).
242
Minister of Safety and Security v Sekhoto (note 236 above) [25].
243
Referring to Pharmaceutical Manufacturers Association of SA: In re Ex parte President of the Republic of
South Africa 2000 (2) SA 674 (CC).
244
Minister of Justice and Constitutional Development v Zealand 2007 (2) SACR 401 (SCA) [4]; Zealand v
Minister of Justice and Constitutional Development 2008 (2) SACR 1 (CC); Botha v Minister of Safety and
Security & January v Minister of Safety and Security 2012 (1) SACR 305 (ECP) [30].
245
Brown v Director of Public Prosecutions 2009 (1) SACR 218 (CPD).
246
Minister of Safety & Security v Sekhoto (note 236 above).
778
additional indicator of constitutionality. Harms DP found that it would be impractical

and unfair to expect an arrestor to negate all possible grounds for unreasonableness
without the grounds having been specifically pleaded by the claimant. However, it is
unclear why this burden could not be discharged by an evidentiary burden which, unlike
the true onus, can shift between the parties. The imposition of an evidentiary burden on
the arrestee would seem to align with the dictates of a policy shaped by the
constitutional directive to promote the spirit, purport and objects of the Bill of Rights.
Evidence obtained when the continued detention of the accused is unconstitutional
may fall to be excluded in terms of s 35(5) of the Constitution.247 Depending on the
circumstances, it is also possible that an admission or confession may be found to have
been made involuntarily and/or under undue influence where an accused is detained
unlawfully.248 Unlawful detention may give rise to a delictual claim. South Africa is a
signatory to the International Covenant on Civil and Political Rights’, art 9 of which
provides that ‘[a]nyone who has been the victim of unlawful arrest or detention shall
have an enforceable right to compensation.249 A court may also make a punitive costs
order against officials who blatantly disregard the Constitution and/or the provisions of
the law.250
Once brought to court and charged (formally or informally) the arrestee must seek his
or her release through a bail application.251 The constitutional parameters of the right to
be released from detention in this instances are set by s 35(1)(f).
The procedures regulating the granting of bail are set out in Chapter 9 of the Criminal
Procedure Act 51 of 1977. Section 60 of the Criminal Procedure Act sets out detailed
provisions in respect of the accused’s application for bail in court. These provisions
have been the subject of constitutional scrutiny.
Prior to the coming into operation of the interim Constitution, the accused bore the
burden of persuading the court on a balance of probabilities that she should be released
on bail.252 Section 25(2)(d) of the interim Constitutional provided that ‘[e]very person
arrested for the alleged commission of an offence shall in addition to the rights which he
or she has as a detained person have the right to be released from detention with or
without bail, unless the interests of justice require otherwise’.
Although the provincial divisions were not unanimous as to whether s 25(2)(d)
placed an onus on the state to show that the interests of justice favoured a denial of
bail,253 there is much to be said for the argument that the word ‘unless’ favours an
247
See S v Mkhize 2011 (1) SACR 554 (KZD).
248
Ibid.
249
See Zealand v Minister of Justice and Constitutional Development 2008 (2) SACR 1 (CC) [52]. See also
Claasen v Minister of Justice and Constitutional Development 2010 (2) SACR 451 (WCC).
250
Coetzee v National Commissioner of Police 2011 (1) SACR 132 (GNP); Prinsloo v Nasionale
Vervolgingsgesag 2011 (1) SACR 196 (GNP).
251
Although the decision to grant bail is primarily judicial (see S v Ramgobin 1985 (4) SA 130 (N)) it can in
respect of relatively trivial offence be granted by the police (see s 59 of the Criminal Procedure Act 51 of 1977).
252
See eg S v Hudson 1980 (4) SA 145 (N); S v Hlongwa 1979 (4) SA 112 (D); De Jager v Attorney-General
Natal 1967 (4) SA 143 (D); Liebman v Attorney-General 1950 (1) SA 607 (W).
253
See S v Njaday 1994 (5) BCLR 90 (E); Magano v District Magistrate Johannesburg (1) 1994 (2) SACR
304 (W); S v Vermaas 1996 (1) SACR 528 (T); Prokureur-Generaal, Vrystaat v Ramokhosi 1997 (1) SACR 127
(O). Cf Prokureur-Generaal van die Witwatersrandse Afdeling v Van Heerden 1994 (2) SACR 467 (W) and
Ellish v Prokureur-Generaal WPA 1994 (2) SACR 579 (W), in which it was held that bail is an application which
does not require an inquiry as to onus. See also S v Mabaza 1994 (5) BCLR 42 (W); S v Mbele 1996 (1) SACR
212 (W); and S v Dhlamini 1997 (1) SACR 54 (W).
779
interpretation that places an onus on the state.254 This interpretation is also implied by
the Constitutional Court in S v Dlamini255 in which the court noted that the starting point
in a bail determination under the interim Constitution was that ‘an arrestee was entitled
to be released’.
This interpretation is reinforced by amendments to the bail provisions introduced by
the Criminal Procedure Amendment Act 75 of 1995 and the Criminal Procedure Second
Amendment Act 85 of 1997. Consequent to these amendments s 60(1)(a) of the
Criminal Procedure Act provides that an accused shall ‘be entitled to be released on bail
at any stage preceding his or her conviction in respect of such offence, unless the court
finds that it is in the interests of justice that he or she be detained in custody’. Thus it
would appear that in terms of s 60(1)(a) of the Criminal Procedure Act the prosecution
must establish that it is in the interests of justice to refuse bail. However, the standard of
proof is not one of beyond reasonable doubt. Section 60(4) reads:
The refusal to grant bail and the detention of an accused in custody shall be in the interests
of justice where one or more of the following grounds are established:
(a) where there is the likelihood that the accused, if he or she were released on bail, will
endanger the safety of the public or any particular person or will commit a Schedule 1
offence; or
(b) where there is the likelihood that the accused, if he or she were released on bail, will
attempt to evade his or her trial; or
(c) where there is the likelihood that the accused, if he or she were released on bail, will
attempt to influence or intimidate witnesses or to conceal or destroy evidence; or
(d) where there is the likelihood that the accused, if he or she were released on bail, will
undermine or jeopardise the objectives or the proper functioning of the criminal justice
system, including the bail system;
(e) where in exceptional circumstances there is the likelihood that the release of the
accused will disturb the public order or undermine the public peace or security.
In S v Dlamini256 the Constitutional Court held that the word ‘likelihood’ required that
there must be a probability that such grounds existed.
That the legislature intended that the state bear the burden of proof is reinforced
by s 60(11) which creates an exception. Section 60(11)(a) provides that where an
accused is charged with an offence listed in Schedule 6257 ‘the court shall order that
the accused be detained . . . unless the accused, having been given a reasonable
opportunity to do so, adduces evidence which satisfies the court that exceptional
circumstances exist which in the interests of justice permit his or her release’.
Section 60(11)(b) provides that where an accused is charged with a Schedule 5
offence the court shall refuse bail ‘unless the accused . . . adduces evidence which
satisfies the court that the interests of justice permit his or her release’. Section
35(1)(f) of the Constitution is less explicit. It provides that ‘[e]veryone who is
arrested for allegedly committing an offence has the right . . . to be released from
detention if the interests of justice permit, subject to reasonable conditions’. Kriegler
J in S v Dlamini258 noted that the interim Constitution ‘contemplated release unless
254
See generally Du Toit et al (note 11 above) 9–30.
255
S v Dlamini (note 38 above) [45].
256
Ibid [53].
257
See S v Josephs 2001 (1) SACR 559 (C) regarding the question of precisely how it can be established that
the accused is being charged with a Schedule 6 offence.
258
780
adverse factors tilted the scale against release whereas the final Constitution requires
something positive to permit release’. In other words the default position has
changed: ‘whereas previously the starting point was that an arrestee was entitled to
be released the position under s 35(1)(f) is more neutral. Now unless there is
sufficient material to establish that the interests of justice permit the detainee’s
release, his or her detention continues.’259 The court found that s 60(1)(a) of the
Criminal Procedure Act ‘favours liberty more than the minimum required by the
Constitution’.260
In considering the constitutionality of s 60(11)(a) and (b), which the court found
imposed a formal onus on the accused, Kriegler J in S v Dlamini261 explicitly stated
that the imposition of an onus on an applicant for bail was not constitutionally
objectionable as the question of erroneous conviction did not arise. The court held
that s 60(11)(b) did not exceed the bounds of constitutionality and did not amount to
an effective denial of bail.262 Kriegler J found that although the sub-section clearly
placed an onus upon the accused to adduce evidence, an accused would still be
granted bail on showing that the interests of justice permitted such a grant—this
exercise being no more than what was required by s 35(1)(f). However, the court
found that s 60(11)(a) in requiring the accused to establish the existence of
‘exceptional circumstances’ was ‘more gravely invasive of the accused person’s
liberty rights’263 and more rigorous than the test for bail established by s 35(1)(f) of
the Constitution. The court nevertheless found this constitutional limitation justifiable
in terms of s 36 of the Constitution. In doing so it noted that bail is limited in many
other open and democratic societies.264 The court also accepted the argument that
s 60(11)(a) ‘was narrowly tailored to fit its purpose, and that therefore the limitation
on the right was not unnecessarily invasive’.265 The court concluded:
Section 60(11)(a) does not contain an outright ban on bail in relation to certain offences, but
leaves the particular circumstances of each case to be considered by the presiding officer.
The ability to consider the circumstances of each case affords flexibility that diminishes the
overall impact of the provision. What is of importance is that the grant or refusal of bail is
under judicial control, and judicial officers have the ultimate decision as to whether or not, in
the circumstances of a particular case, bail should be granted.266
Where an accused gives evidence in a bail application he or she retains the privilege
against self-incrimination.267 This means that even where the accused elects to testify he
can decline to answer incriminating questions. However, if the accused chooses not to
testify or refuses to answer incriminating questions, he runs the risk of bail being
refused. One of the issues before the Constitutional Court in S v Dlamini268 was the
259
260
Ibid [37].
261
Ibid.
262
Ibid [65].
263
Ibid [65]. As regards the difficulty in establishing the meaning of exceptional circumstance see S v Vanqa
2002 (2) SACR 371 (TkHC); S v Mohammed 1999 (2) SACR 507 (C); S v Mank 1999 (2) SACR 497 (W); S v
Siwela 1999 (2) SACR 685 (W); S v Yanta 2000 (1) SACR 237 (Tk).
264
265
Ibid [74].
266
Ibid [74].
267
S v Botha 1995 (2) SACR 605 (W).
268
S v Dlamini (note 38 above).
781
constitutionality of s 60(11B)(c) of the Criminal Procedure Act. Section 60(11B)(c)

provides:
The record of the bail proceedings, excluding the information in paragraph (a), shall form
part of the record of the trial of the accused following upon such bail proceedings: Provided
that if the accused elects to testify during the course of the bail proceedings the court must
inform him or her of the fact that anything he or she says, may be used against him or her at
his or her trial and such evidence becomes admissible in any subsequent proceedings.
As noted by the Constitutional Court269 this section is not inconsistent with the common
law in terms of which admissible evidence given by the accused at a bail application
may be admitted against the accused at the subsequent trial. This is reinforced by s 235
of the Criminal Procedure Act, which provides for proof of the record by the mere
production of a certified copy thereof at trial.270 The common law also permits an
accused to be cross-examined at trial on previous inconsistent statements including
those made during bail proceedings.
The constitutional challenge to s 60(11B)(c) was based on the alleged infringement
of those rights directed at upholding the privilege against-self-incrimination. Counsel
for Schietekat focused on the effects of s 60(11B)(c) when applied in conjunction with
s 60(11)(a) and s 60(14).271 The argument can be summarised as follows: the effect of
s 60(11) is that the accused has no choice but to adduce evidence if he or she wants to
be released on bail. Because s 60(14) effectively denies the accused access to
information in the police docket, the accused will in many instances have to testify
himself in order to satisfy the requirement of s 60(11). The combined effect of these
provisions is to burden the accused with a compulsion to testify. Counsel for Dlamini
and Dladla advanced a broader argument relying on the argument in S v Botha272 in
which the court held that ‘[i]n the interests of a fair trial, the accused should not have
to choose’ between the right to bail and the privilege against self-incrimination. Both
arguments were dismissed. The court rejected the remedy advanced in Botha, namely
to treat evidence given at bail proceedings in the same way as evidence given at a
trial-within-a-trial. It held that s 60(11B)(c) did not compel the accused to do anything.
At most it required the accused to make a difficult choice. Kriegler J held that the fact
that an accused may be forced to make a difficult choice was a common feature in
democratic societies and an important component of freedom, and that it was an
‘inevitable consequence of the high degree of autonomy afforded the prosecution and
269
270
See S v Nomzaza 1996 (2) SACR 14 (A).
271
The relevant provisions read as follows: ‘60(11) Notwithstanding any provision of this Act, where an
accused is charged with an offence referred to—(a) in Schedule 6, the court shall order that the accused be
detained in custody until he or she is dealt with in accordance with the law, unless the accused, having been given
a reasonable opportunity to do so, adduces evidence which satisfies the court that exceptional circumstances exist
which in the interests of justice permit his or her release; (b) in Schedule 5, but not in Schedule 6, the court shall
order that the accused be detained in custody until he or she is dealt with in accordance with the law, unless the
accused, having been given a reasonable opportunity to do so, adduces evidence which satisfies the court that the
interests of justice permit his or her release.’
‘60(14) Notwithstanding anything to the contrary contained in any law, no accused shall, for the purposes of
bail proceedings, have access to any information, record or document relating to the offence in question, which is
contained in, or forms part of, a police docket, including any information, record or document which is held by
any police official charged with the investigation in question, unless the prosecutor otherwise directs: Provided
that this subsection shall not be construed as denying an accused access to any information, record or document
to which he or she may be entitled for purposes of his or her trial.’
272
S v Botha (note 267 above) 611j.
782
the defence in our largely adversary system of criminal justice’.273 The Constitutional
Court concluded that there was no inevitable conflict between s 60(11B)(c) and any
provision of the Constitution as in each instance evidence contained in the bail record
fell to be excluded if its admission would render the trial unfair.274
In respect of s 60(14) the court held that this limitation on the right to access to
the police docket was not absolute and could be read restrictively so as to permit
access should it be required to assist the accused to discharge the onus imposed in
sub-s (11). Furthermore, sub-s (14) specifically facilitated the accused’s access to the
docket for the purposes of a fair trial.275
It was also argued in S v Dlamini276 that sub-ss (4) and (9) of s 60 of the Criminal
Procedure Act were unconstitutional by virtue of being in conflict with the principle
of separation of powers, but this argument was rejected by the Constitutional Court
on the basis that the sections merely required the court ‘to apply its mind to a whole
panoply of factors potentially in favour of or against the grant of bail’. Sub-sections
(4)(a) and (5) of s 60 were challenged on the basis that they unconstitutionally
permitted preventive detention by directing the court, in deciding whether to grant
bail in the interests of justice, to take into account the likelihood of the detainee
endangering a particular individual or the public at large or committing a fairly
serious offence. The court held that although these factors could not be classified as
trial-focused, it was nonetheless constitutionally permissible to take them into
account in determining whether refusal of release would be in the interests of justice.
However, s 60(4)(e) and its elaborating s 60(8A) were found to infringe the s 35(1)(f)
right to be released on reasonable conditions. Subsection (4)(e) stipulates that it will
be in the interests of justice to refuse bail ‘where in exceptional circumstances there is
the likelihood that release of the accused will disturb the public order or undermine the
public peace or security’. However, the court held that this infringement, which only
applied in exceptional circumstances, met the requirements of the limitation clause.277
32.5 THE RIGHT TO HUMANE CONDITIONS OF DETENTION

The importance of the right to human dignity was emphasised in Chapter 10 and its link
with the s 35(2) rights of detained persons established. The s 10 right to dignity and the
s 12 right to freedom and security of person, including the right not to be treated in a
cruel, inhuman or degrading way, are both relevant in determining the appropriate
conditions of incarceration. However, the basic constitutional standards for a detainee’s
conditions of detention are specifically guaranteed in s 35(2)(e), which provides that all
detainees, including every sentenced prisoner, have the right ‘to conditions of detention
that are consistent with human dignity, including at least exercise and the provision, at
state expense, of adequate accommodation, nutrition, reading material and medical
273
274
See eg S v Hoho 1999 (2) SACR 159 (C); S v Snyman 1999 (8) BCLR 931 (C). In S v Sejaphale 2000 (1)
SACR 603 (T) Jordaan J held that the failure to advise an accused at bail proceedings in terms of s 60(11B)(c)
that anything he said might be used against him at his or her trial, rendered the record of the proceedings
inadmissible at subsequent proceedings notwithstanding that the accused was legally represented. See also S v
Nzima 2001 (2) SACR 354 (C); S v Basson 2004 (1) SACR 285 (CC).
275
See also Schwikkard & Van der Merwe (note 33 above) 11 5 2.
276
277
For a general critique of S v Dlamini see J Sarkin et al ‘The Constitutional Court’s Bail Decision: Individual
Liberty in Crisis? 2000 (16) SAJHR 292.
783
treatment’. The Correctional Services Act 111 of 1998 has as one of its objectives the
incarceration of prisoners ‘under conditions of human dignity’.278
The annual report of the Office of the Inspecting Judge, Judicial Inspectorate of
Prisons, suggests that the state frequently fails to meet these constitutional standards,279
and this failure does not correlate with the infrequency with which s 35(2) rights appear
in the law reports. This section is restricted to a brief overview of some of those cases.280
In Stanfield v Minister of Correctional Services281 the applicant applied to be placed
on parole in terms of s 69 of the Correctional Services Act 8 of 1959 on the basis that he
had contracted lung cancer and his life expectancy had been severely shortened. His
application was refused and the matter went on review. The applicant argued, inter alia,
that s 69 should have been interpreted so as to ‘promote the spirit, purport and the object
of the Bill of Rights’ (as provided in s 39) and that in terms of the s 10 right to dignity
the applicant was entitled to die in a dignified and humane way.282
In granting the application the court (per Van Zyl J) noted that ‘[w]hat will be
“consistent with human dignity” in any particular case will . . . depend on the facts and
circumstances of each case’.283 The court held that the prisoner’s continuing right to
dignity was well established at common law and cited the following extract for the
judgment of Corbett JA in Goldberg v Minister of Prisons:284
It seems to me that fundamentally a convicted and sentenced prisoner retains all the basic
rights and liberties (using the word in its Hohfeldian sense) of an ordinary citizen except
those taken away from him by law, expressly or by implication, or those necessarily
inconsistent with the circumstances in which he as a prisoner, is placed. Of course, the
inroads which incarceration necessarily makes upon a prisoner’s personal rights and liberties
. . . are very considerable. He no longer has freedom of movement and has no choice in the
place of his imprisonment. His contact with the outside world is limited and regulated. He
must submit to the discipline of prison life and the rules and regulations which prescribe
how he must conduct himself and how he is to be treated while in prison. Nevertheless, there
is a substantial residuum of basic rights which he cannot be denied; and, if he is denied
them, then he is entitled . . . to legal redress.
On the facts, Van Zyl J found that the third respondent had failed to respect the
applicant’s inherent right to human dignity, ignoring or downplaying the fact that the
applicant was ‘suffering from an inoperable and incurable disease’ which would cause
his death within a few months.285 This was compounded by the third respondent’s
failure to recognise the inadequacy of the medical facilities in the prisons.286 The court
278
See the long title of the Act. See also s 2(b).
279
See http://judicialinsp.pwv.gov.za/annualreports/annualreport.asp; and Stanfield v Minister of Correctional
Services 2003 (12) BCLR 1384 (C) [128].
280
For a more detailed analysis of a detainee’s right to humane conditions of detention see Steytler (note 42
above) 183–203.
281
Stanfield v Minister of Correctional Services (note 279 above).
282
Ibid [15] and [68].
283
Ibid [89].
284
Goldberg v Minister of Prisons 1979 (1) SA 14 (A) at 39C–F. See also Whittaker v Roos & Bateman;
Morant v Roos & Bateman 1912 AD 92; Minister of Justice v Hofmeyr 1993 (3) SA 131 (A); Conjwayo v
Minister of Justice, Legal and Parliamentary Affairs 1992 (2) SA 56 (ZS); B v Minister of Correctional Services
1997 (6) BCLR 789 (C); Strydom v Minister of Correctional Services 1999 (3) BCLR 342 (W); Minister of
Correctional Services v Kwakwa 2002 (4) SA 455 (SCA); August v Electoral Commission 1999 (3) SA 1 (CC);
Ehrlich v Minister of Correctional Services 2009 (1) SACR 588 (E).
285
Stanfield (note 279 above) [124].
286
Ibid [125].
784
also found that the third respondent’s insistence that the applicant remain imprisoned
until it was physically impossible for him to commit any crime ‘inhuman, degrading and
thoroughly undignified’.287 It also held that the failure to take the applicant’s individual
circumstances into account by ‘a lumping together of all prisoners suffering from
terminal diseases’ also undermined the applicants right to dignity.288
Section 35(2)(e) also has the potential of leading the courts into the very difficult
adjudicative realm of socio-economic rights. These are fully discussed in Chapter 26
and are only cursorily raised here in respect of cases specifically dealing with
s 35(2)(e). In B and Others v Minister of Correctional Services289 the court had to
deal with the question whether the applicants and other HIV-infected prisoners were
entitled to receive ‘appropriate anti-viral medication’. This required the court to
consider what would constitute ‘adequate medical treatment’ in terms of s 35(2)(e).
The court held that once what constituted ‘adequate medical treatment’ had been
established its non-affordability was not a defence to the applicant’s assertion of his
or her right. However, Brand J held that nevertheless financial conditions or
budgetary constraints were not irrelevant and that—
[w]hat is ‘adequate medical treatment’ cannot be determined in vacuo. In determining what
is ‘adequate’, regard must be had to, inter alia, what the State can afford. If the prison
authorities should, therefore make out a case that as a result of budgetary constraints, they
cannot afford a particular form of medical treatment or that the provision of such medical
treatment would place an unwarranted burden on the State, the Court may very well decide
that the less effective medical treatment which is affordable to the State must in the
circumstances be accepted as ‘suffıcient’ or ‘adequate medical treatment’. After all . . .
section 35(2)(e) of the Constitution does not provide for ‘optimal medical treatment’ or ‘the
best available medical treatment’, but only for ‘adequate medical treatment’.290
In rejecting the respondent’s argument that the state was under no duty to provide
prisoners with a greater degree of medical care than that available at state expense
outside of the prison—the court held that the state owed a higher degree of care to
prisoners.291 Brand J’s reasons for this conclusion included the fact that ‘[u]nlike
persons who are free, prisoners have no access to other resources to assist them in
gaining access to medical treatment’292 and that in respect of HIV-positive prisoners the
prison environment exposed them more ‘to opportunistic viruses than HIV sufferers
who are not in prison’.293
Noting that the Department of Correctional Services had failed to establish that it
could not afford to provide the combination anti-viral therapy, the court held that the
failure to provide this treatment to first and second applicants infringed their
s 35(2)(e) right to ‘adequate medical treatment’. The court ordered that the applicants
be provided with the prescribed anti-viral therapy.
Jafta J in S v Vanqa294 held that the authorities’ conduct in refusing a seriously
asthmatic bail applicant access to medical treatment breached both the s 35(2)(f) right
287
Stanfield (note 279 above) [126].
288
Ibid [127].
289
B v Minister of Correctional Services 1997 (6) BCLR 789 (C) [2].
290
Ibid [49] (emphasis original).
291
B v Minister of Correctional Services (note 289 above) [52].
292
Ibid [53].
293
Ibid [54].
294
S v Vanqa 2000 (2) SACR 371 (TkHC).
785
to access to a chosen medical practitioner and the s 35(2)(e) right to medical

treatment at state expense. The courts have also held that the Minister’s failure to
guard against the spread of TB in a maximum security prison was unlawful and
unconstitutional.295
In Strydom v Minister of Correctional Services296 the court, in determining
whether a prisoner’s right to access to electricity was required in order for the
conditions of detention to be consistent with human dignity, attempted to draw a
distinction between ‘comforts’ and ‘necessities’ and quoted with approval the
following passage from Minister of Justice v Hofmeyr:297
In seeking to identify or to circumscribe basic rights, I would approve the critical approach
adopted by Corbett JA in the Goldberg case in regard to the efficacy or otherwise of a test
based upon the distinction between ‘comforts’ on the one hand and ‘necessities’ on the other
hand. In this field of enquiry . . . the line of demarcation between the two concepts is so
blurred and so acutely dependent upon the particular circumstances of the case that the
distinction provides a criterion of little value. An ordinary amenity of life, the enjoyment of
which may in one situation afford no more than comfort or diversion, may in a different
situation represent the direst necessity. Indeed in the latter case, to put the matter starkly,
enjoyment of the amenity may be a lifeline making the difference between physical fitness
and debility and likewise the difference between mental stability and derangement.
The court found that although ‘[a]ccess to electricity can never be said to be a necessity
of life’298 for prisoners who faced the long-term reality of spending 18,5 hours each day
of their lives in solitary confinement the inability to enjoy such privileges as television
‘for which access to electricity is an indispensable requirement cannot be characterised
as “no more that a comfort or a diversion” and “could be an amenity of life that makes
the difference between mental stability and derangement”’.299 The court also found that
the denial of access to electricity in this context could also materially affect the
applicants’ prospects of rehabilitation and could result in prisoners being ‘treated and
punished in a cruel or degrading manner’.300
The right to communicate with, and be visited by, caregivers can be viewed as
part of the broader right to be detained in humane conditions.301 In terms of
s 35(2)(f) detainees have a right to be visited by their spouses or partners, next of
kin, religious counsellor and medical practitioner—all of whom can potentially play
an important role in ensuring the detainee’s mental and physical well-being as well
as being an important guarantor of the detainee’s ability to enforce his or her
rights.302
In determining the constitutional parameters of appropriate conditions of detention
it is also necessary to take into account the rights of children enumerated in s 28 of
the Constitution. For example, in S v Z and 23 similar cases303 Plasket J found, inter
alia, that the ‘failure to provide mechanisms for the proper and prompt
295
Lee v Minister of Correctional Services 2011 (2) SACR 603 (WCC) [263] and [269].
296
Strydom v Minister of Correctional Services 1999 (3) BCLR 342 (W).
297
Minister of Justice v Hofmeyr 1993 (3) SA 131 (A) at 141H–142A.
298
Strydom (note 296 above) [15].
299
Ibid.
300
Ibid [15].
301
See Steytler (note 42 above) 197.
302
Ibid 199.
303
S v Z and 23 similar cases 2004 (4) BCLR 410 (E).
786
implementation of sentences of detention in a reform school’304 infringed the rights

of a child ‘to be protected from maltreatment, neglect, abuse or degradation’
(s 28(1)(d)) and to ‘not be detained except as a measure of last resort . . . and for the
shortest appropriate period of time’ (s 28(1)(g)). He also held that the right to
freedom and security of person as well as the right to dignity of the children had
been infringed.
32.6 THE RIGHT TO INFORMATION, TIME AND FACILITIES TO PREPARE AND

PRESENT A DEFENCE
(a) The charge

In terms of s 35(3)(a) of the Constitution an accused’s right to a fair trial includes the
right ‘to be informed of the charge with sufficient detail to answer it’. Fulfilment of this
right is also required for the accused to realise the s 35(3)(b) right ‘to have adequate time
and facilities to prepare a defence’.
Section 35(3)(a) constitutionalises s 84(1) of the Criminal Procedure Act 51 of 1977
which requires the charge to set out the details of the relevant defence in a manner so as
to inform the accused of the nature of the charge. The charge must also contain all
relevant particulars pertaining to the time, place, persons and property involved as well
as any applicable minimum sentencing provisions.305 In addition, the charge must be
clear and unambiguous.306
(b) Summary proceedings

In S v Singo307 the court dealt with the constitutionality of summary procedures
envisaged in s 72(4) of the Criminal Procedure Act 51 of 1977 consequent upon the
failure to comply with a warning to appear in court. It held that the absence of a formal
written charge-sheet did not infringe s 35(3)(a) provided the accused was furnished with
the details of the alleged offence and provided with the necessary particulars.308 In S v
Fielies309 the court held that the ‘constitutional right to be informed of the charge
includes the right to be informed of competent verdicts on the charge’.310 However,
Griesel J noted that:
[w]hile it is not essential to refer to competent verdicts in the charge sheet, it is extremely
desirable that an undefended accused be informed timeously of any competent verdicts that
might be returned on conviction. This requires the court ‘to diligently, deliberately and
painstakingly inform the said unrepresented accused of his rights and to ensure and confirm
that the accused understands his rights.311
304
S v Z and 23 similar cases (note 303 above) [15].
305
See S v Chowe 2010 (1) SACR 141 (G).
306
S v Wanneburg 2007 (1) SACR 27 (C) at 34b, citing S v Singo 2002 (2) SACR 160 (CC) at 482F with
approval. Clarity also requires accurate translation, see S v Manzini 2007 (2) SACR 107 (W).
307
S v Singo (note 306 above).
308
Ibid [19]. See S v Lavhengwa 1996 (2) SACR 453 (W); S v Ntshwence 2004 (1) SACR 506 (Tkd); S v
Solomons 2004 (1) SACR 137 (C).
309
S v Fielies 2004 (4) BCLR 385 (C) [9].
310
Ibid.
311
Ibid [9]. See also S v Chauke 1998 (1) SACR 354 (V).
787
The constitutionality of summary proceedings invoked in respect of contempt of court in

terms of s 108 of the Criminal Procedure Act was considered in S v Lavhengwa.312 The
court held that the section was not per se unconstitutional but that certain guidelines
needed to be complied with in order to ensure constitutional conformity:313 (a) a court
should first consider whether it would not be appropriate to resort to the normal
procedure of referring the matter to the Director of Public Prosecutions; (b) if summary
procedures are followed the accused should be warned of the procedures and should be
advised of the relevant statutory provisions; (c) the accused must be advised as to what
aspects of his conduct contravened s 108; (d) the accused must also be advised of all his
constitutional rights, including the right to legal representation314 and be given the
opportunity of exercising them; and (e) the presiding officer must then carefully
consider whether guilt has been established beyond a reasonable doubt.
(c) Adequate time and facilities to prepare a defence

The court in S v Singo,315 with reference to s 72(4) of the Criminal Procedure Act 51 of
1977, held that the summary nature of the proceedings did not necessarily negate the
s 35(3)(b) right to have adequate time and facilities to prepare a defence and somewhat
cryptically stated that ‘[i]f the accused asserts the right, the court must deal with that in
accordance with the rights of the accused’. Presumably what the court intended to
convey was that what constitutes adequate time and facilities to prepare a defence will
depend on the circumstances of each case.
In S v Nkabinde316 the court found the fact that the accused’s only facilities to prepare
his defence, namely a telephone line and consultation room, had been subject to
electronic monitoring by the state infringed both s 35(3)(b) and the right to privacy.
(d) Access to information

The central role of access to information in enabling an accused to exercise his or her
fair trial rights was recognised by the Constitutional Court in Shabalala v
Attorney-General of Transvaal317 in abolishing ‘blanket docket privilege’ and
broadening the accused’s access to state witnesses. The court’s order provides the best
summary of the prevailing position and reads as follows:
A. 1. The ‘blanket docket privilege’ expressed by the rule in R v Steyn 1954 (1) SA 324
(A) is inconsistent with the Constitution to the extent to which it protects from
disclosure all the documents in a police docket, in all circumstances, regardless as
to whether or not such disclosure is justified for the purposes of enabling the
accused properly to exercise his or her right to a fair trial in terms of s 25(3).
2. The claim of the accused for access to documents in the police docket cannot be
defeated merely on the grounds that such contents are protected by a blanket
privilege in terms of the decision in Steyn’s case.
3. Ordinarily an accused person should be entitled to have access to documents in the
police docket which are exculpatory (or which are prima facie likely to be helpful
312
S v Lavhengwa (note 308 above).
313
Ibid 495b–496a.
314
See S v Juries 2003 (2) SACR 52 (C).
315
S v Singo (note 306 above).
316
S v Nkabinde 1998 (8) BCLR 996 (N). See also Van Rooyen v Departement van Korretiewe Dienste 2005
(1) SACR 77 (T).
317
Shabalala and Others v Attorney-General of Transvaal and Another 1995 (2) SACR 761 (CC).
788
to the defence) unless, in very rare cases, the State is able to justify the refusal of
such access on the grounds that it is not justified for the purposes of a fair trial.
4. Ordinarily the right to a fair trial would include access to the statements of
witnesses (whether or not the State intends to call such witnesses) and such of the
contents of a police docket as are relevant in order to enable an accused person
properly to exercise that right, but the prosecution may, in a particular case, be
able to justify the denial of such access on the grounds that it is not justified for the
purposes of a fair trial. This would depend on the circumstances of each case.
5. The State is entitled to resist a claim by the accused for access to any particular
document in the police docket on the grounds that such access is not justified for
the purposes of enabling the accused properly to exercise his or her right to a fair
trial or on the ground that it has reason to believe that there is a reasonable risk
that access to the relevant document would lead to the disclosure of the identity of
an informer or State secrets or on the grounds that there was a reasonable risk that
such disclosure might lead to the intimidation of witnesses or otherwise prejudice
the proper ends of justice.
6. Even where the State has satisfied the Court that the denial of access to the
relevant documents is justified on the grounds set out in paragraph 5 hereof, it
does not follow that access to such statements, either then or subsequently must
necessarily be denied to the accused. The Court still retains a discretion. It should
balance the degree of risk involved in attracting the potential prejudicial
consequences for the proper ends of justice referred to in paragraph 5 (if such
access is permitted) against the degree of the risk that a fair trial may not enure for
the accused (if such access is denied). A ruling by the Court pursuant to this
paragraph shall be an interlocutory ruling subject to further amendment, review or
recall in the light of circumstances disclosed by the further course of the trial.
B. 1. Insofar and to the extent that the rule of practice pertaining to the right of an
accused or his legal representative to consult with witnesses for the State prohibits
such consultation without the permission of the prosecuting authority, in all cases
and regardless of the circumstances, it is not consistent with the Constitution.
2. An accused person has a right to consult a State witness without prior permission
of the prosecuting authority in circumstances where his or her right to a fair trial
would be impaired, if, on the special facts of a particular case, the accused cannot
properly obtain a fair trial without such consultation.
3. The accused or his or her legal representative should in such circumstances
approach the Attorney-General or an official authorised by the Attorney-General
for consent to hold such consultation. If such consent is granted the
Attorney-General or such official shall be entitled to be present at such
consultation and to record what transpires during the consultation. If the consent
of the Attorney-General is refused the accused shall be entitled to approach the
Court for such permission to consult the relevant witness.
4. The right referred to in paragraph 2 does not entitle an accused person to compel
such consultation with a State witness:
(a) if such State witness declines to be so consulted; or
(b) if it is established on behalf of the State that it has reasonable grounds to
believe such consultation might lead to the intimidation of the witness or a
tampering with his or her evidence or that it might lead to the disclosure of
State secrets or the identity of informers or that it might otherwise prejudice
the proper ends of justice.
789
5. Even in the circumstances referred to in paragraph 4(b), the Court may, in the
circumstances of a particular case, exercise a discretion to permit such
consultation in the interest of justice subject to suitable safeguards.318
The application of this order does not appear to have given much trouble in practice and
consequently there have been very few cases arising out of refusal to disclose.319
However, some uncertainties have arisen regarding at what point in the proceedings an
accused becomes entitled to access to the docket. The right to such information clearly
only arises once the accused has been charged.320 However, this still makes the right to
access automatic and the prosecution is entitled to resist disclosure subject to judicial
oversight.321 Access to the docket may be refused at the bail stage,322 although the court
retains a discretion to override such refusal.
Where the information sought does not form part of the police docket and is held
by a person who is not a party to the proceedings then the Promotion of Access to
Information Act 2 of 2000 must be invoked in order to acquire the records.323
Presiding officers have a duty to advise unrepresented accused of their right of
access to the docket.324
(e) Presence of the accused

A crucial component of the right to a fair trial is the s 35(3)(e) right to be present when
tried325 which is closely linked to the s 35(3)(i) right to adduce and challenge evidence.
The constitutional right to be present when tried is reflected in s 158 of the Criminal
Procedure Act 51 of 1977. Although the section is peremptory and cannot be waived,326
it recognises that the accused and witnesses may give evidence ‘by closed circuit
television or similar electronic media’.327 A departure from s 158 will constitute an
irregularity but will only result in the quashing of a conviction where the consequence of
the irregularity is a failure of justice.328 Section 159 sets out the circumstances in which
criminal proceedings may take place in the absence of the accused and s 160 details
procedures that must be followed where an accused is absent. There is little doubt that
these exceptions would meet the requirements of the limitations clause.
(f) Cross-examination
The truth-seeking function in the adversarial system is dependent on the parties’ abilities
to present evidence and cross-examine. The right to challenge and adduce evidence
(s 35(3)(i)) can be fulfilled both by calling witnesses and through cross-examination.
318
Shabalala (note 317 above) [72].
319
But see S v Makiti [1997] 1 All SA 291 (B) in which the court clearly encourages disclosure as a default
position.
320
Park-Ross v Director: Offıce for Serious Economic Offences 1995 (2) SA 148 (C).
321
See generally Schwikkard & Van der Merwe (note 33 above) 11 5 1.
322
See s 60(14) of the Criminal Procedure Act 51 of 1977 and S v Dlamini (note 38 above). Discussed above.
323
Kerkhoff v Minister of Justice and Constitutional Development 2011 (2) SACR 109 (GNP).
324
S v Shiburi 2004 (2) SACR 314 (W).
325
This was held to extend to the right to participate in the reconstruction of a lost trial record in S v Zenzile
2009 (2) SACR 407 (WCC).
326
See S v Roman 1994 (1) SACR 436 (A); S v M 2004 (1) SACR 238 (N).
327
Section 158(2) and s 170A of the Criminal Procedure Act 51 of 1977.
328
S v M 2004 (1) SACR 238 (N).
790
The failure of a presiding officer to allow cross-examination (even in part) will

constitute an infringement of the constitutional right329 to adduce and challenge
evidence. However, a conviction will only be set aside if the restriction on
cross-examination results in a failure of justice.330 Stewart AJ in S v Nnasolu331 held that
the magistrate’s failure to allow cross-examination on a relevant aspect of a state
witness’s testimony constituted an irregularity at common law, and amounted to an
infringement of the constitutional right to adduce and challenge evidence. The court
found that in the circumstances it was appropriate to exclude that part of the evidence
that had not been subject to cross-examination and held that irregularity had not resulted
in a failure of justice. In reaching this conclusion the court applied the test set out in S v
Msithing332 in which Theron J held:
a fundamental irregularity which violates an accused’s right to a fair trial must result in a
failure of justice. If the irregularity is not of a fundamental nature the focus shifts to what
would have happened but for the irregularity. The setting aside of the conviction based on
the violation of the right to a fair trial in circumstances of a minor ‘tainting’ of the
proceedings will undermine the ‘pressing social need’ to prosecute crime.
Unfortunately, the court in Nnasolu, having set out the above test, impliedly reaches the
conclusion that there has been no fundamental irregularity by immediately considering
what would have happened but for the irregularity. This leaves uncertainty as to what
approach to take when determining whether a fundamental irregularity has occurred.
The court’s reasoning appears to be as follows: despite the fact that the ‘tainted
evidence’ was integral to the court a quo’s reasoning, in the circumstances
cross-examination would have made little difference to the weight of the evidence and in
any event, despite the approach taken by the court a quo, there was sufficient evidence to
sustain a conviction without the inclusion of the ‘tainted’ evidence. This would suggest
that whether or not an irregularity is ‘fundamental’ is inevitably tied to the ‘but for’ test.
For a presiding officer to disallow cross-examination on evidence that he or she clearly
regards as important to the fact-finding process must surely constitute a serious violation
of a fair trial right and the only reason that it had not resulted in a failure of justice in
these circumstances is because in retrospect it made no difference to the outcome. This
may well be an appropriate way of ensuring that the legitimacy of the criminal justice
system is not undermined by unduly technical acquittals; however, it would be
misleading to suggest that there can be a bright line dividing the two stages of the
inquiry.
The ability to challenge evidence is also compromised where the prosecution fails
to make adequate disclosure to the accused.333 In S v Mtolo334 the court held that
where the committal to a treatment centre was sought in terms of s 21(1) of the
Prevention and Treatment of Drug Dependency Act 20 of 1992, the person who is
the subject of the committal order has the right to challenge evidence. It held that the
329
See S v Mgudu 2008 (1) SASCR 71 (N); S v Ismail 2006 (1) SACR 593 (C).
330
S v Nnasolu 2010 (1) SACR 561 (KZP).
331
Ibid.
332
2006 (1) SACR 266 (N) at 273a–b.
333
S v Mtolo 2009 (1) SACR 443 (O).
334
Ibid [9].
791
court a quo had misdirected itself in not making the relevant reports or their contents
available to the accused and as a consequence ‘the whole sentencing process was
unfair.
In S v Ndhlovu335 the Supreme Court of Appeal held that the right to challenge
evidence does not necessarily include the right to cross-examine. In Ndhlovu, the
Supreme Court of Appeal was required to consider, inter alia, the constitutionality of
s 3 of the Law of Evidence Amendment Act 45 of 1988 which governs the
admissibility of hearsay evidence. Section 3(4) defines hearsay as ‘evidence, whether
oral or in writing, the probative value of which depends upon the credibility of any
person other than the person giving such evidence’. It is clear from s 3(1) that the
general rule is that hearsay evidence is inadmissible subject to three exceptions:
(a) where the party against whom the evidence is adduced consents; (b) where the
person upon whose credibility the probative value of the evidence depends testifies;
and (c) where a court is of the opinion that it is in the interests of justice that the
hearsay evidence be admitted.
The court in Ndhlovu336 identified the following disadvantages that may accrue as
a result of the admission of hearsay evidence. First, it is ‘not subject to the reliability
checks applied to first hand testimony’ and secondly, ‘its reception exposes the party
opposing its proof to the procedural unfairness of not being able to counter
effectively, inferences that may be drawn from it’.337 Presumably it was on the basis
of such potential prejudice that counsel for the accused based the assertion that the
accused’s constitutional right to challenge evidence was infringed. The court noted
that s 3 is primarily an exclusionary rule and that its significant departure from the
common law was the creation of ‘supple standards within which courts may consider
whether the interests of justice warrant the admission of hearsay notwithstanding the
procedural and substantive disadvantages its reception might entail’.338 Cameron JA
held that the legislative criteria to be taken into account in applying the interests of
justice test were ‘consonant with the Constitution’339 and reiterated the court’s
reluctance to admit or rely ‘on hearsay evidence which plays a decisive or even
significant part in convicting an accused, unless there are compelling justifications
for doing so’.340
Cameron JA also listed a number of duties resting on presiding officers to ensure
that an accused’s fair trial rights are upheld. Presiding officers should: (a) actively
guard against the inadvertent admission or ‘venting’ of hearsay evidence;341
(b) ensure that the significance of the contents of s 3 are properly explained to an
unrepresented accused;342 and (c) protect an accused from ‘the late or unheralded
admission of hearsay evidence’.343 These requirements are not be found in the 1988
Act but rather in the courts’ application of the Act.
335
S v Ndhlovu 2002 (2) SACR 325 (SCA).
336
Ibid.
337
Ibid [13]. See also Harksen v Attorney General Cape 1999 (1) SA 718 (C).
338
Ibid [14]. See also Makhathini v Road Accident Fund 2002 (1) SA 511 (SCA).
339
Ibid [16].
340
Ibid [16].
341
See also S v Zimmerie 1989 (3) SA 484 (C) 492F–H; S v Ramavhale 1996 (1) SACR 639 (A) 651c.
342
See also S v Ngwani 1990 (1) SACR 449 (N).
343
S v Ndhlovu (note 335 above) [18]. See S v Ndlovu 1993 (2) SACR 69 (A) 73b.
792
Cameron JA also emphasised the ‘rigorous legal framework’ created by s 3 with

reference to the level of scrutiny to which a decision to admit hearsay evidence
might be subject.344 The point is that a decision to admit evidence is not simply an
exercise of judicial discretion but a decision of law which can be overruled by an
appeal court if found to be wrong.345 The court also noted that the manner in which
s 3 regulates the admission of hearsay evidence is ‘in keeping with developments in
other democratic societies based on human dignity, equality and freedom’.346 It
concluded that the constitutional right to challenge evidence had not been infringed.
The crux of the court’s reasoning is found in the following passage:
It has correctly been observed that the admission of hearsay evidence ‘by definition denies
an accused the right to cross-examine’, since the declarant is not in court and cannot be
cross-examined. I cannot accept, however, that ‘use of hearsay evidence by the State violates
the accused’s right to challenge evidence by cross-examination’, if it is meant that the
inability to cross-examine the source of a statement in itself violates the right to ‘challenge’
evidence. The Bill of Rights does not guarantee an entitlement to subject all evidence to
cross-examination. What it contains is the right (subject to limitation in terms of s 36) to
‘challenge evidence’. Where that evidence is hearsay, the right entails that the accused is
entitled to resist its admission and to scrutinise its probative value, including its reliability.
The provisions enshrine these entitlements. But where the interests of justice, constitution-
ally measured, require that hearsay evidence be admitted, no constitutional right is infringed.
Put differently, where the interests of justice require that the hearsay statement be admitted,
the right to ‘challenge evidence’ does not encompass the right to cross-examine the original
declarant.347
Although not expressly articulated, it is clear that Cameron JA’s interpretation of the
right to challenge evidence rejects a notional approach to the interpretation of the rights.
Woolman describes such an approach as follows: ‘an interpretive method which holds
that any activity or status which could notionally fall within the ambit of a right would
be protected’.348 There can be little doubt that the right to challenge evidence must
ordinarily include the right to cross-examine. The admission of hearsay evidence, by
virtue of the definition of hearsay, excludes the cross-examination of the person upon
whom the probative value depends (who may or may not be the original declarant).
Therefore we must assume that the Supreme Court of Appeal eschewed a notional
approach or else it would have been forced to engage in the second, justificatory stage of
the limitations analysis.349
However, a few years later the Supreme Court of Appeal seems to have taken a
different interpretational tack. Mlambo JA in S v Libazi350 considered whether the
344
S v Ndhlovu (note 335 above) [22].
345
See McDonald’s Corporation v Joburgers Drive-Inn Restaurant (Pty) Ltd 1997 (1) SA 1 (A) 27E.
346
S v Ndhlovu (note 335 above) [23].
347
Ibid [24].
348
S Woolman ‘The Right Consistency’ (1999) 15 SAJHR 166, 173.
349
For a more detailed discussion of this case see PJ Schwikkard ‘The Challenge to Hearsay’ (2003) 120 SALJ
63. Challenges based on the right to adduce and challenge evidence were also rejected by the courts in the
following cases: S v Singo 2002 (2) SACR 160 (CC) at [21] in which it was held that s 72(4) of the Criminal
Procedure Act 51 of 1977 did not infringe the right to adduce and challenge evidence; S v Dodo 2001 (1) SACR
301 (E) at 315 the court held that s 51(1) and s 51(3) of the Criminal Law Amendment Act 105 of 1997
(minimum sentencing provisions) affected the weight to be attached to evidence and did not infringe the right to
adduce and challenge evidence; S v Van der Sandt 1997 (2) SACR 116 (W) in which the court rejected an
argument that s 212 curtailed the right to cross-examine.
350
2010 (2) SACR 233 (SCA).
793
court a quo had correctly admitted an extra-curial admission by a co-accused who

had died prior to trial and which implicated his co-accused. The court, adopting a
generous approach to the constitutional interpretation of rights, noted that the right to
cross-examine is integral to the accused’s capacity to actively assert his rights of
defence. The court, whilst expressing doubt as to the correctness of the approach
taken in Ndhlovu, did not explicitly depart from it and instead chose to distinguish
the present appeal on the basis that in Ndhlovu the maker of the statement in
question had testified but disavowed the content of his ‘hearsay’ statement, whereas
in the present matter the maker of the statement was absent (having died). There can
be little doubt that the right to challenge evidence ordinarily includes the right to
cross-examine.351
Section 170A of the Criminal Procedure Act 51 of 1977 permits a court to appoint
a person as an intermediary through whom examination, cross-examination and
re-examination of a child will take place. In K v The Regional Court Magistrate
NO352 the court rejected the argument that s 170A infringed the right to
cross-examine and consequently there was no necessity to enter into a limitations
analysis. This accords with the view expressed by the South African Law
Commission that the use of an intermediary would not inhibit the purpose of
cross-examination. In that—‘[t]he purpose of “translated” cross-examination is not to
weaken intelligent and even sharp cross-examination, but rather to limit
aggressiveness and intimidation towards the child witness’.353 The accused also has
the right to be protected against unfair cross-examination.354
(g) The right to adduce evidence

The courts have repeatedly held that a duty rests on a presiding officer to assist the
unrepresented accused in exercising his or her right to adduce evidence.355 The right to
adduce evidence also requires the provision of a qualified and properly sworn interpreter
where appropriate. This is closely linked to the accused’s right to be tried in a language
he or she understands.356
The right to adduce evidence includes the right to testify, to call witnesses357 and if
necessary to receive assistance in ensuring that defence witnesses are able to attend
court.358 In S v Aimes359 the court was required to solve the following dilemma at trial:
could the record of accused 1’s bail application, which had been unconstitutionally
obtained, be adduced by accused 2? It was clear that the admission of the bail record
would clearly render the trial unfair in respect of accused 1, but its exclusion would also
351
See eg S v Msimango 2010 (1) SACR 544 (GSJ).
352
K v The Regional Court Magistrate NO 1996 (1) SACR 434 (E).
353
For a more detailed discussion of s 170A and decided cases see: Du Toit et al (note 11 above) 22–30ff;
Schwikkard & Van der Merwe (note 33 above) 18 11 3, PJ Schwikkard ‘The Abused Child: a Few Rules of
Evidence Considered’ 1996 Acta Juridica 148.
354
Tshona v Regional Magistrate, Uitenhage 2001 (8) BCLR 86 (E) 864. The constitutionality of s 170A can
also be challenged from the perspective of child witness/complainant—see S v Mokoena, S v Phaswane 2008 (2)
SACR 216 (T).
355
See eg S v Simxadi 1997 (1) SACR 169 (C), S v Stowitzki 1995 (2) SA 525 (NmHC); S v Sishi [2000] 2 All
SA 56 (N), S v Dyani 2004 (2) SACR 365 (E); S v Mungoni 1997 (8) BCLR 1083 (V).
356
S v Saidi 2007 (2) SACR 637 (C); S v Manzini 2007 (2) SACR 107 (W).
357
See S v Younas 1996 (2) SACR 272 (C); S v Gwala 1989 (4) SA 937 (N).
358
See Pennington v Minister of Justice 1995 (3) BCLR 270 (C). See generally Steytler (note 42 above) 345ff.
359
S v Aimes 1998 (1) SACR 343 (C).
794
render the trial unfair in respect of accused 2, whose right to adduce evidence would be
violated. The court ruled that the bail record of accused 1 could be admitted for the sole
purpose of assisting accused 2 in his defence, subject to the proviso that it was not
admissible against accused 1.360
32.7 THE RIGHT TO A PUBLIC TRIAL BEFORE AN ORDINARY COURT
(a) A public trial

This provision finds expression in s 152 of the Criminal Procedure Act 51 of 1977. It
guards against the iniquities of secret trials and contributes to public confidence in the
justice system.361 Steytler defines a public trial as one which is open to the public and
media, and can be reported upon; he makes the point that the public scheduling of
hearings is a necessary perquisite for public access.362 There are a number of statutory
exceptions to this rule363 which require justification in terms of the limitation clause. In
many instances the requisite justifications are obvious, for example, the need to protect
vulnerable participants in the criminal justice system such as children364 and victims of
sexual abuse—however, in other instances they will and do fail to pass constitutional
scrutiny.365 Media access may be restricted where it interferes with the right to a fair
trial.366 Consequently, it is possible that a court may be placed in a position where it has
to reconcile the right to a fair trial with other constitutional rights such as the right to
freedom of expression,367 for example, by restricting the broadcast media in trial
proceedings.
(b) An ordinary court

An ordinary court is one ‘previously established by law’ and which applies ‘duly
established procedures’.368 The requirement that an accused be tried in an ordinary court
‘protects an accused from the ad hoc creation of courts and application of procedures
which may be abused by the executive to the detriment of judicial independence and
impartiality’.369 Judicial independence and impartiality are constitutionally required by
s 165 of the Constitution. This section falls outside of the Bill of Rights. The
360
See also S v Jeniker (2) 1993 (2) SACR 464 (C).
361
See Klink v Regional Court Magistrate NO 1996 (3) BCLR 402 (SE); S v Mamabolo (E-TV and Others
intervening) 2001 (1) SACR 686 (CC); 2001 (5) BCLR 449; Shinga v State 2007 (2) SACR 28 (CC); 2007 (5)
BCLR 474.
362
Steytler (note 42 above) 251.
363
See eg ss 153 and 154 of the Criminal Procedure Act 51 of 1977. See Nel v Le Roux NO 1996 (3) SA 562
(CC) [17]. See also S v Pennington 1997 (4) SA 1076 (CC) [47] where the court held that there was no
constitutional ‘requirement that the appeal be in open court or that the accused person be entitled to be present at
the appeal’.
364
See eg Media24 Ltd v National Prosecuting Authority (Media Monitoring Africa as Amicus Curiae): In ee
S v Mahlangu 2011 (2) SACR 321 GNP. See further Chapter 27.
365
For example, s 78(3) of the Military Discipline Code was found to be unconstitutional in Freedom of
Expression Institute v President of the Ordinary Court Martial NO 1999 (2) SA 471 (C) which has subsequently
been repealed by the Military Discipline Supplementary Measures Act 16 of 1999.
366
SABC Ltd v NDPP 2007 (1) SACR 408 (CC).
367
Ibid. See also S v Geiges 2007 (2) SACR 507 (T).
368
369
Ibid.
795
relationship between s 165 and the accused’s fair trial rights were explained by
Chaskalson CJ in Van Rooyen v S370 as follows:
it must be kept in mind that judicial impartiality and the application without fear, favour or
prejudice by the courts of the Constitution and all law, as postulated by s 165(2) of the
Constitution, are inherent in an accused’s right to a fair trial under s 35(3) of the
Constitution. One of the main goals of institutional judicial independence is to safeguard
such rights. However, institutional judicial independence itself is a constitutional principle
and norm that goes beyond and lies outside the Bill of Rights. The provisions of s 36 of the
Constitution dealing with limitation to rights entrenched in the Bill of Rights are accordingly
not applicable to it. Judicial independence is not subject to limitation.
The requirements of judicial independence and impartiality are more fully discussed in
Chapter 31. These apply equally to criminal trials and consequently the discussion
below is restricted to those cases which have a particular emphasis on criminal
procedure.
In S v Dodo371 the Constitutional Court rejected the court a quo’s372 finding that
s 51(1) of the Criminal Law Amendment Act 105 of 1997 violated the right to a trial
before an ordinary court. Section 51(1) read together with s 51(3) requires a High
Court to sentence an accused convicted of specified serious crimes to life
imprisonment unless ‘it is satisfied that substantial and compelling circumstances
exist which justify the imposition of a lesser sentence’. The court found that these
sections ‘did not oblige a High Court to impose a penal sentence on a convicted
person that was inconsistent with the Constitution’373 and in no way had a material
effect on the court’s independence or impartiality that could be viewed as preventing
the High Courts from being classified as ordinary courts.374
Maya J in S v Ntshwence375 found the inquisitorial nature of the summary
procedures envisaged in s 108 of the Criminal Procedure Act 51 of 1977 coupled
with the fact that the presiding officer was ‘an arbiter in his own cause’ limited the
right to be tried in an ordinary court.376 However, after a somewhat cursory
limitations analysis the court concluded that the necessity of ‘[s]wift judicial
intervention to defend the honour and procedural integrity of the court’ justified the
limitation.377 This echoes the approach taken by the Constitutional Court in S v
Mamabolo (E TV and Others intervening)378 which dealt with the constitutionality of
the common-law summary procedures invoked to deal with a charge of contempt of
court arising out of the offence of scandalising the court. The court noted that unlike
other contempt of court charges the offence of ‘scandalising’ occurs outside of court
and does not require swift intervention in order to ensure ‘the orderly progress of
judicial proceedings’.379 The court identified the following unsatisfactory aspects of
the summary procedure:
370
Van Rooyen v S 2002 (2) SACR 222 (CC) [35].
371
S v Dodo 2001 (1) SACR 594 (CC).
372
See S v Dodo 2001 (1) SACR 279 (EC).
373
S v Dodo (note 372 above) [42].
374
Ibid [49].
375
S v Ntshwence 2004 (1) SACR 506 (Tkd).
376
Ibid [27].
377
Ibid [38]. See also S v Chinamasa 2001 (1) SACR 278 (ZS).
378
S v Mamabolo (E TV and Others intervening) 2001 (1) SACR 686 (CC).
379
Ibid [52].
796
There is no adversary process with a formal charge-sheet formulated and issued by the
prosecutorial authority in the exercise of its judgment as to the justice of the prosecution;
there is no right to particulars of the charge and no formal plea procedure with the right to
remain silent, thereby putting the prosecution to the proof of its case. Witnesses are not
called to lay the factual basis for a conviction, nor is there a right to challenge or controvert
their evidence. Here the presiding Judge takes the initiative to commence proceedings by
means of a summons which he or she formulates and issues; at the hearing there need be no
prosecutor, the issue being between the Judge and the accused. There is no formal plea
procedure, no right to remain silent and no opportunity to challenge evidence. Moreover, the
very purpose of the procedure is for the accused to be questioned as to the alleged contempt
of court.380
The court found these inquisitorial procedures ‘inherently punitive and unfair’ and that
the failure to separate complainant, prosecutor, witness and judge constituted an
infringement of the right to a fair trial. Although the court chose not to deal with the
elements of a fair trial specifically included in s 35(3) individually, it indicated that the
summary procedures infringed the following rights under s 35(3): (a) to be informed of
the charge with sufficient detail to answer it; (b) to have adequate time and facilities to
prepare a defence; (c) to a public trial before an ordinary court; (h) to be presumed
innocent, to remain silent, and not to testify during the proceedings; (i) to adduce and
challenge evidence; and (j) not to be compelled to give self-incriminating evidence. The
court held that the summary procedures could not be saved by s 36(1) as, in the absence
of a ‘pressing need for firm or swift measures to preserve the integrity of the judicial
process’, there was no reason why the ‘ordinary mechanisms of the criminal justice
system’ could not be employed.381
Prosecutors are required to act impartially; however, their role remains adversarial
as they seek the conviction of the accused. The requirement of impartiality imposes a
duty on the prosecutor to give the accused access to all available evidence. In S v
Van der Westhuizen382 the court held that where the accused was represented the
duty would be ‘discharged by making the evidence available to the accused’s legal
representative’. The prosecutor’s duty does not extend to putting such information
before the court. The extent of the prosecutor’s duty to make all evidence available
to the court when the accused is not legally represented remains unclear.
Despite the adversarial role played by prosecutors they have a duty to ensure that
justice is done and any attempt to manipulate evidence or witnesses will be seen as
an infringement of the right to a fair trial.383
(c) Judicial bias

The question of judicial bias is a constitutional one because ‘the impartial adjudication
of disputes in both criminal and civil cases is a cornerstone of any fair and just legal
system’.384 The test for bias was succinctly set out by the Supreme Court of Appeal in S
v Roberts385 as follows:
380
S v Mamabdo (ETv and Others intervening) 2001 (1) SACR 686 (CC) [54].
381
Ibid [53].
382
2011 (2) SACR 26 (SCA) [13].
383
S v Agliotti 2011 (2) SACR 437 (GSJ).
384
S v Basson 2004 (1) SACR 285 (CC) [21]. See also S v Klaas 2011 (1) SACR 630 (ECG).
385
S v Roberts 1999 (2) SACR 243 (SCA) [32] and [34]. See also S v Shackell 2001 (2) SACR 185 (SCA);
President of the Republic of South Africa v SARFU 1999 (4) SA 147 (CC); South African Commercial Catering
797
(1) There must be a suspicion that the judicial officer might, not would, be biased.
(2) The suspicion must be that of a reasonable person in the position of the accused or
litigant.
(3) The suspicion must be based on reasonable grounds.
. . ..
(4) The suspicion is one which the reasonable person referred to would, not might have.
In S v Colliers386 the court, dealing with an appeal against the refusal of a magistrate to
recuse himself, firmly rejected the appellant’s argument that the right to a fair trial
included the right of an accused to be tried by a magistrate ‘who is representative of the
society from which the appellant comes’.387
32.8 THE RIGHT TO HAVE A TRIAL BEGIN AND CONCLUDE WITHOUT

UNREASONABLE DELAY
The vehicle for giving practical application to the s 35(3)(d) right to have a trial begin
and conclude without unreasonable delay is to be found in s 342A of the Criminal
Procedure Act 51 of 1977. This provision is directed at protecting an accused’s ‘liberty,
personal security and trial related interests’.388 Section 342A makes it peremptory for a
court to investigate what appears to be an unreasonable delay in the completion of
criminal proceedings ‘and which could cause substantial prejudice to the prosecution,
the accused or his or her legal adviser, the State, or a witness’.389 In terms of s 342A(2)
the court must take the following factors into account in determining whether the delay
is unreasonable: the duration and reasons for the delay; whether anybody can be blamed
for the delay; the effect of the delay on the personal circumstances of the accused and
witnesses as well as the effect on the administration of justice. Potential prejudice to the
state or defence must also be taken into account and here the court should consider, inter
alia, weakening of the quality of evidence, the possible death or disappearance or
non-availability of witnesses, the loss of evidence, problems relating to the gathering of
evidence and costs. The court must also take into account any adverse effect the delay
may have on the interests of the public or victims should the prosecution be stopped or
discontinued. This includes taking into account the nature of the case.390 In determining
whether a delay is unreasonable the court will apply a ‘balancing test’ in weighing all
these factors holistically.391
and Allied Workers Union v Irvin & Johnson Ltd 2000 (3) SA 705 (CC); S v Le Grange 2009 (1) SACR 125
(SCA) [21].
386
S v Colliers 1995 (8) BCLR 975 (C).
387
Ibid 979.
388
Zanner v DPP, JHB 2006 (2) SACR 45 (SCA) [11]. See also Sanderson v Attorney-General, Eastern Cape
1998 (1) SACR 227 (CC); Wild v Hoffert NO 1998 (2) SACR 1 (CC). The Canadian Supreme Court in R v Morin
(1992) 8 CLR (2d) 193 at 202 described the manner in which these rights are protected: ‘The right to security of
the person is protected . . . by seeking to minimise the anxiety, concern and stigma of exposure to criminal
proceedings. The right to liberty is protected by seeking to minimise exposure to the restrictions on liberty which
result from pre-trial incarceration and restrictive bail conditions. The right to a fair trial is protected by attempting
to ensure that proceedings take place while evidence is available and fresh’. See also Barker v Wingo, Warden
407 US 514 (1972) at 532.
389
Section 342A(1).
390
Bothma v Els 2010 (1) SACR 184 (CC). See also S v Joseph 2007 (1) SACR 496 (W); Sanderson v
Attorney General, Eastern Cape 1998 (1) SACR 227 (CC); Zanner v DPP, JHB 2006 (2) SACR 45 (SCA).
391
Bothma v Els (note 390 above).
798
Section 342A(3) provides an open list of potential remedies should the court find that
the completion of proceedings has been unreasonably delayed.392 These include: (a)
refusing further postponement of the proceedings; (b) granting a postponement subject
to conditions; (c) before plea, that the case be struck off the roll and not reinstituted
without the written instructions of the National Director of Public Prosecutions; (d) after
plea, order that the matter proceed as if the delaying party’s case had been closed.
However, exceptional circumstances must exist before a court may order a permanent
stay of the criminal prosecution;393 they are also orders of last resort.394 Section
342A(3)(e), which is potentially the most effective, has not yet been brought into effect.
It allows the court to make a costs order against the delaying party.
In Sanderson v Attorney General, Eastern Cape,395 (an appeal that originated prior to
the coming into operation of s 342A) the Constitutional Court held that a court should
be more tolerant of systemic delays,396 namely, ‘resource limitations that hamper the
effectiveness of police investigation or the prosecution of a case, and delay caused by
congestion’.397 Kriegler J elaborated as follows:
Systemic factors are probably more excusable than cases of individual dereliction of duty.
Nevertheless, there must come a time when systemic causes can no longer be regarded as
exculpatory. The Bill of Rights is not a set of (aspirational) directive principles of State
policy—it is intended that the State should make whatever arrangements are necessary to
avoid rights violations. One has to accept that we have not yet reached that stage. Even if
one does accept that systemic factors justify delay, as one must at the present, they can only
do so for a certain period of time. It would be legitimate, for instance, for an accused to bring
evidence showing that the average systemic delay for a particular jurisdiction had been
exceeded. In the absence of such evidence, courts may find it difficult to determine how
much systemic delay to tolerate. In principle, however, they should not allow claims of
systemic delay to render the right nugatory.
In S v Dzukuda398 the Constitutional Court stressed the importance of distinguishing
between pre- and post-conviction delay. It held that, in respect of pre-conviction delay,
three kinds of interests were protected: ‘trial related interests, liberty and security’.399
Trial-related prejudice could result from fading memories and the unavailability of
witnesses. Liberty and security interests arose because, despite being presumed
innocent, the accused would increasingly be subject to the negative stigmatisation that
392
In Director of Public Prosecutions v Regional Magistrate, Durban 2001 (2) SACR 463 (N) the court held
that the provisions of s 342A(3) did not apply to events preceding the institution of criminal proceedings. It also
noted that a magistrate’s court has jurisdiction to hear an application for a stay of prosecution where there has
been an inordinate delay in bringing a prosecution.
393
See also McCarthy v Additional Magistrate, Johannesburg 2000 (2) SACR 542 (SCA); Sanderson
v Attorney General, Eastern Cape 1998 (1) SACR 227 (CC); Zanner v DPP, JHB 2006 (2) SACR 45 (SCA).
394
Section 342A(4)(a). The following cases pre- and post- s 342A reflect an application of the factors outlined
in s 342A: Du Preez v Attorney-General, Eastern Cape 1997 (2) SACR 375 (E); Wild v Hoffert NO 1998 (2)
SACR 1 (CC); Bate v Regional Magistrate Randburg 1996 (7) BCLR 974 (W); In re Mlambo 1992 (2) SACR
245 (Z); Feedmill Development (Pty) Ltd v Attorney-General of KwaZulu Natal 1998 (2) SACR 539 (N); Wiggins
v Acting Regional Magistrate, Cape Town 2008 (1) SACR 178 (C); S v Thobela 2008 (1) SACR 605 (W).
395
Sanderson v Attorney General, Eastern Cape 1998 (1) SACR 227 (CC).
396
Ibid [35]. See also McCarthy v Additional Magistrate, Johannesburg 2000 (2) SACR 542 (SCA);
S v Joseph 2007 (1) SACR 496 (W).
397
Sanderson (note 395 above) [35]. For examples of systemic delays see S v Motsasi 1998 (2) SACR 35 (W);
S v Motsasi 2000 (1) SACR 574 (W); S v Maredi 2000 (1) SACR 611 (T).
398
S v Dzukuda 2000 (2) SACR 443 (CC).
399
Ibid [51].
799
inevitably arises from being an accused.400 This prejudice was significantly reduced
post-conviction as ‘the presumption of innocence, which lies at the heart of
pre-conviction prejudice, is absent’.401 This distinction was also drawn by the court in S
v Pennington402 where the court noted that the nature of the prejudice suffered by the
accused in respect of appellate delays was substantially reduced by the fact that appeals
are decided on the record and consequently the outcome could not be affected by the
delay.403
There appears to be no barrier in principle to the application of s 35(3)(d) of the
Constitution to appeal proceedings although the matter is yet to come squarely
before the courts.404 Although pre- and post-conviction delays attract different
consideration they may also compound the prejudice suffered by the accused when
both occur in the same trial.405 Section 35(3) does not expressly apply to pre-trial
delay; however, its protections can be extended by virtue of the right to freedom and
the broad concept of fairness underlying the right to a fair trial.406
32.9 THE RIGHT TO BE TRIED AND GIVEN INFORMATION IN A LANGUAGE THAT IS

UNDERSTOOD BY THE RECIPIENT
The right to be tried and given information in a language407 that the accused understands
is essential in order for the accused to exercise his or her s 35 constitutional rights.408 It
is also necessary to facilitate the participation of the accused in the trial, an essential
functional component of adversarial fact-finding.
In terms of s 35(3)(k) where it is not practical for an accused to be tried in a language
he or she understands the accused has a right to have the proceedings interpreted in that
language. Section 35(3)(k) does not confer a right to be tried in a language of choice but
merely to be tried in a language that the accused understands.409 Interpretation should
occur simultaneously and into a language fully (not partially) understood by the
accused.410 When information is conveyed to the accused in relation to a right it must
also be done in such a way that the content of the right is understood by the accused.411
It is essential that an interpreter is properly sworn in.412 An accused is entitled to have a
legal representative appointed (where he or she qualifies for legal representation at state
expense) with whom he or she can communicate and should be informed of this right.413
400
S v Dzukuda 2000 (2) SACR 443 (CC) [52].
401
Ibid [53].
402
S v Pennington 1997 (4) SA 1076 (CC).
403
Ibid [39].
404
S v Sochop 2008 (1) SACR 553 (C).
405
S v Jackson 2008 (2) SACR 272 (C).
406
Bothma v Els (note 391 above) [33] and [35].
407
Section 35(4) reads ‘[w]henever this section requires information to given to a person that information
must be given in a language that the person understands’.
408
S v Manzini 2007 (2) SACR 107 (W).
409
Mthethwa v De Bruin NO 1998 (3) BCLR 336 (N). See also S v Damoyi 2004 (1) SACR 126 (C) [17].
Compare S v Pienaar 2000 (2) SACR 143 (NC).
410
S v Ngubane 1996 (2) SCR 218 (C). Compare S v Siyotula 2003 (1) SACR 154 (E). Cf Naidenov v Minister
of Home Affairs 1995 (7) BCLR 891 (T).
411
S v Melani 1996 (1) SACR 335 (E) 349g.
412
S v Saidi 2007 (2) SACR 637 (C); S v Manzini 2007 (2) SACR 107 (W).
413
S v Pienaar 2000 (2) SACR 143 (NC).
800
32.10 THE PRINCIPLE OF LEGALITY

There is constitutional confirmation of certain important aspects of the common-law
principle of legality in s 35(3)(l) and (n),414 namely, that crimes and their sentences must
be clearly formulated.415 In terms of sub-s 3(l) an accused’s right to a fair trial includes
the right ‘not to be convicted for an act or omission that was not an offence under either
national or international law at the time it was committed or omitted’. For example, in
S v Walters416 the court was constrained by s 35(3)(l) to make its order invalidating
s 49(2) of the Criminal Procedure Act 51 of 1977 prospective only.417 The principle of
legality restricts a courts’ extension of a common-law definition of a crime even where
the purpose is to promote other constitutional values.418 Consequently, in developing
common-law crimes the court must do so with the utmost caution and without the
development having retrospective effect.419
In terms of sub-s (3)(n) an accused is entitled ‘to the benefit of the least severe of the
prescribed punishments if the prescribed punishment for the offence has been changed
between the time that the offence was committed and the time of sentencing’. Applying
sub-s (3)(n) the court in Senyolo held that retrospectively restricting what constitutes
substantive and compelling circumstances in term of s 51(3)(aA) of the Criminal
Procedure Act was unconstitutional.420
A difficulty that arises out of sub-s (3)(n) is the meaning of ‘punishment’. In
Phillips421 the Constitutional Court held that a confiscation order in terms of s 18 of the
Prevention of Organised Crime Act 121 of 1998 did not constitute punishment for an
offence—the purpose of a confiscation order was to confiscate the gains of criminal
conduct and not to punish the person.422 In S v Mbuyane423 the court held that an
amendment to s 92(1)(a) of the Magistrates’ Courts Act 32 of 1944, increasing the penal
jurisdiction of the magistrates’ courts,424 was procedural in nature, did not amount to a
prescribed punishment, and therefore could be retrospectively applied.
32.11 DOUBLE JEOPARDY

Section 35(3)(m) affords constitutional protection against double jeopardy. This right
protects individuals from being repeatedly prosecuted for the same conduct.425 It also
furthers the general public interest in finality and fairness.426 Furthermore, ‘sound penal
414
J Burchell & J Milton in Principles of Criminal Law 2 ed (1997) at 66 state that those aspects of the
principle of legality not covered by s 35(3)(l) and (n) can be read into the Constitution by reference to the rule of
law as a founding provision of the Constitution (s 1(c)).
415
S v Senyolo 2010 (2) SACR 571 (GSJ).
416
Ex parte Minister of Safety and Security: In re S v Walters 2002 (4) SA 613 (CC); 2002 (7) BCLR 663.
417
Ibid [74]. Section 49(2) authorised the use of deadly force in effecting an arrest.
418
S v Mshumpa 2008 (1) SACR 126 (E) [55].
419
Masiya v Director of Public Prosecutions, Pretoria 2007 (5) SA 30 (CC) [30]–[33] and [47]–[51].
420
S v Senyolo 2010 (2) SACR 571 (GSJ).
421
National Director of Public Prosecutions v Phillips 2002 (1) BCLR 41 (W).
422
See also De Lange v Smuts NO 1998 (3) SA 785 (CC) [37]–[38] and [66]–[67]; Nel v Le Roux NO 1996 (3)
SA 562 (CC) [11] (1996 (3) SA 526 (CC)).
423
S v Mbuyane; S v Nkitle 1999 (1) SACR 458 (T).
424
Section 6 of the Magistrates’ Courts Amendment Act 66 of 1998.
425
See McIntyre v Pietersen 1998 (1) BCLR 18 (T). See also S v Basson 2004 (1) SACR 285 (CC) [66].
426
S v Basson (note 425 above) [66].
801
policy requires that a person should not be punished twice in respect of one and the same
offence’.427
The right finds practical application in s 106(1)(c) and s 106(1)(d) of the Criminal
Procedure Act 51 of 1977. These sub-sections make provision for an accused to plead
that he or she ‘has already been convicted of the offence for which he is charged’428 or
that he or she ‘has already been acquitted of the offence with which he is charged’.429
Steytler raises the question whether the National Director of Public Prosecution’s
statutory power430 to appeal against the merits of a sentence constitutes an infringement
of s 35(3)(m) and concludes that despite the contrary view expressed by the High
Court431 ‘this power is a prima facie violation of an accused’s right against double
jeopardy, but is a justifiable limitation’.432 It is justifiable because ‘an appeal is allowed
in very limited circumstances’ and is subject to clearly defined time constraints.433 The
state’s right to appeal against sentence serves a legitimate objective as over-lenient
sentences undermine the public’s confidence in the criminal justice system.434 The lack
of finality on sentence induces less anxiety than final determination as to guilt or
innocence.435
When a conviction is set aside, without reference to the merits, on the basis of a gross
irregularity, as the accused has neither been acquitted nor convicted on the merits, the
accused can be re-tried without infringing s 35(3)(m).436
32.12 THE RIGHT TO APPEAL OR REVIEW

The right to appeal or review guards against wrong convictions and inappropriate
sentences.437 It also promotes ‘consistency and uniformity in the application of the law’
which in turn furthers the ideal of equality before the law.438
Section 35(3)(o) provides that the appeal or review must be made to a higher court. A
higher court will be a court the decisions of which are binding on the court against
which the appeal was granted. Consequently, a full bench of the High Court will be a
higher court in relation to a single-judge decision in the same division.439 The accused
need not be given more than one opportunity to appeal in order to meet the requirements
of the right to appeal or review.440
The Constitutional Court has held that ‘section 35(3)(o) contemplates that the review
427
Du Toit et al (note 11 above) 15–28.
428
Section 106(1)(c)—the plea of autrefois convict.
429
Section 106(1)(d)—the plea of autrefois acquit. For a full discussion of both s 106(c) and (d) see Du Toit et
al (note 11 above) 15–28 to 15–35.
430
Sections 310 and 316 of the Criminal Procedure Act 51 of 1977.
431
Attorney-General, Eastern Cape v D 1997 1 SACR 473 (E) 477a–b; S v Sonday 1995 (1) SA 497 (C), S v
Kellerman 1996 (1) SACR 89 (T).
432
433
Ibid 386. See Attorney-General, Eastern Cape v D 1997 (1) SACR 473 (E) 476g.
434
Steytler (note 42 above) 385. See Attorney-General, Venda v Maraga 1992 (2) SACR 594 (V).
435
436
S v Basson 2004 (1) SACR 285 (CC) [66]. S v Le Grange 2009 (1) SACR 125 (SCA).
437
S v Twala (South African Human Rights Commission Intervening) 1999 (2) SACR 622 (CC); S v Steyn
2001 (1) SACR 25 (CC).
438
439
S v Rens 1996 (2) SACR 105 (CC).
440
See S v Pennington 1999 (2) SACR 329 (CC).
802
or appeal it guarantees is as fair as the trial itself must be.’441 Section 309(3A) of the
Criminal Procedure Act 51 of 1977 provides that an appeal may be disposed of in
chambers and will only be heard in open court with oral argument in exceptional
circumstances. The court in Shinga,442 stressing the importance of open justice as a
principle of democracy,443 held that s 309(3A) was ‘inimical to the rule of law, to the
constitutional mandate of transparency and to justice itself’.444
In S v Ntuli,445 the Constitutional Court held that the minimum required by
s 25(3)(h)446 of the interim Constitution, in respect of the right to appeal or review, was
‘an opportunity for an adequate reappraisal of every case and an informed decision on
it’. The court found that the requirement that an unrepresented, convicted prisoner be
required to obtain a judge’s certificate to the effect that there were reasonable grounds
for review or appeal contained in s 309(4)(a) of the Criminal Procedure Act read
together with s 305 did not meet these minimum requirements. The absence of
prescribed procedures requiring the certifying judge to read the complete trial record
coupled with the unrepresented status of the petitioner led to the conclusion that the
issuing or granting of the required certificate could not be done on a sufficiently
informed basis.447
The question before the court in S v Rens448 was whether s 25(3)(h) of the interim
Constitution included an automatic right to appeal. The court found that the wording of
s 25(3)(h), which required ‘recourse by way of appeal or review’, supported a broad
construction of the words ‘appeal or review’.449 It held that the requirement of first
seeking leave to appeal before lodging an appeal against conviction or sentence in the
High Court was consistent with the right to appeal.450 It found that the applicable
procedures, importantly including the right to petition the Supreme Court of Appeal
when leave to appeal had been refused by the High Court, provided sufficient safeguards
and facilitated the informed reassessment of the disputed issues. The court also held that
the right to review and appeal did not require the hearing of full oral argument.451
However, it is clear that significant reliance was put on the words ‘to have recourse by
way of’ contained in s 25(3)(h) of the interim Constitution. These words were omitted
from s 35(3)(o) of the 1996 Constitution. The difference in wording was considered in
S v Twala,452 in which the Constitutional Court held that there was ‘no material
difference between s 25(3)(h) and s 35(3)(o)’.453 The court emphasised that s 35(3)(o)
had to be properly contextualised as a fair trial right and noted:
441
Shinga v The State 2007 (2) SACR 28 (CC), referred to as Shinga.
442
Ibid.
443
Ibid [26].
444
Ibid [25].
445
S v Ntuli 1996 (1) SACR 94 (CC) [17].
446
Section 25(3)(h) of the interim Constitution refers to the right ‘to have recourse by way of appeal or review
to a higher court than the court of first instance’.
447
The court, in S v Ntuli 1996 (1) SACR 94 (CC), also held that the requirement of a judge’s certificate
infringed the constitutional right to equality. See also S v Phakati 2005 (2) SACR 361 (W).
448
S v Rens (note 439 above).
449
Ibid [21].
450
Ibid [26].
451
However, the importance of oral argument was recognised by the Constitutional Court in S v Steyn 2001 (1)
SACR 25 (CC) [24].
452
S v Twala (South African Human Rights Commission Intervening) 1999 (2) SACR 622 (CC).
453
Ibid [17].
803
The purpose of s 35(3) read as a whole is to minimise the risk of wrong convictions and the
consequent failure of justice, and s 35(3)(o) is intended to contribute towards achieving this
object by ensuring that any decision of a court of first instance convicting and sentencing
any person of a criminal offence would be subject to reconsideration by a higher Court. The
provision requires an appropriate reassessment of the findings of law and fact of courts of
first instance and is clearly not intended to prescribe, in a technical sense, the nature of the
reassessment that will always be appropriate. The reason for this is that the nature of the
reassessment that is appropriate will depend on the prevailing circumstances. Section 35(3)
does not provide for specifics. It creates a broad framework within which the lawmaker is
afforded flexibility in order to provide for the kind of reassessment mechanism which is both
appropriate and fair.
Adopting a contextual approach the Constitutional Court in S v Steyn454 found that
ss 309B and 309C of the Criminal Procedure Act requiring leave for appeal to be sought
in the magistrates’ courts, did not pass constitutional muster. The court held that these
sections infringed s 35(3)(o) of the Constitution in that the applicable procedures did not
ensure that sufficient information would be put before the High Court when petitioned as
a consequence of the application to appeal being refused. In the absence of sufficient
information there could be no guarantee of an informed reassessment.455 Furthermore,
the court found that the right to appeal from the magistrates’ courts fell to be dealt with
differently to the right to appeal from a High Court in that ‘the risk of error leading to an
injustice is substantially greater in the magistrates’ courts than in the High Courts’.456
As a consequence of the Steyn judgment the Criminal Procedure Act was again
amended457 so as to provide an automatic right of appeal to all persons under the age
of 14 who are sentenced to a term of imprisonment, and those between 14 and 16
sentenced to imprisonment without legal representation. In all other cases the
accused is required to seek leave to appeal in terms of ss 309B and 309C. In terms
of s 309C where a magistrate has refused leave to appeal, the accused can apply to
the High Court for leave to appeal. The magistrate’s reasons for refusing the
application as well as a copy of the judgment reflecting the reasons for conviction
and sentence must be sent to the High Court together with the application for leave
to appeal. The record of the proceedings must also be sent to the High Court subject
to a number of exceptions. The amended section only required the petition to be
heard by one judge.
The Constitutional Court was called upon to consider these amendments in
Shinga.458 The court held that there was no justification found for the exceptions to
the rule that a record must be sent to the appeal court. It also held that the
constitutional requirement of an adequate reappraisal of the record requires two
judges to consider the record. The court found that if the appropriate safeguards were
in place the requirement that leave to appeal be sought was not inherently
unconstitutional.
In S v Zondi459 dealing with an appeal based on a reconstructed record (the
relevant tape on which the proceedings in the trial court had been lost) the court held
454
S v Steyn 2001 (1) SACR 25 (CC).
455
See also S v Joors 2004 (2) BCLR 217 (C).
456
Ibid [22].
457
Criminal Procedure Amendment Act 42 of 2003.
458
Shinga (note 441 above).
459
S v Zondi 2003 (2) SACR 227 (W) [10].
804
that the adequacy of an appeal record will depend ‘on the basis and grounds of the
particular appeal’. Furthermore, it held that placing the primary responsibility for
preparing an appeal record on the appellant would in most instances negate the
appellant’s right to an appeal,460 and that where a part or the whole of the record had
been lost both the appellant and the state had a duty to try and reconstruct the record
from secondary sources.461
It is essential that the reasons given by the trial court are available to and
considered by the appeal court.462 Where the reasons are not to be found in the
judgment but only in the trial463 record the appeal court must examine the record.
The negation of the right to appeal may occur if an accused is required to wait in
prison for a long period before his appeal is heard. This led the court in Mabapa v
S464 to conclude that the appropriate test for granting bail on appeal was ‘if the
appeal is reasonably arguable and not manifestly doomed to failure’465—of course
this test applies in the context of all factors relevant to the granting of bail.
32.13 UNCONSTITUTIONALLY OBTAINED EVIDENCE
(a) Scope of discretion and rationale

Section 35(5) provides a remedy for breaches of the constitutional rights of arrested,
detained and accused persons at the trial stage of criminal proceedings. However the
remedy for these constitutional breaches466 is not restricted to arrested, detained and
accused persons.467 Moreover, the rationale for the rule is far broader than that of
providing a remedy for an aggrieved individual. The rule is seen as playing an integral
role in ensuring constitutional and judicial integrity in the criminal justice system as a
whole, as well as promoting constitutional compliance by the police and prosecutorial
services.468 Section 35(5) provides ‘[e]vidence obtained in a manner that violates any
right in the Bill of Rights must be excluded if the admission of that evidence would
render the trial unfair or otherwise be detrimental to the administration of justice’.
The interim Constitution did not contain an express exclusionary rule. However, the
courts under the interim Constitution developed an exclusionary rule either through
reliance on their common-law discretion to exclude evidence469 or by invoking s 7(4) of
the interim Constitution, which provided for ‘appropriate relief’.470 The ‘exclusionary
jurisprudence’ developed during this period remains influential in the interpretation and
application of s 35(5).
460
S v Zondi 2003 (2) SACR 227 (W) [12].
461
Ibid [15].
462
Mphahlele v First National Bank of SA Ltd 1999 (2) SA 667 (CC).
463
S v Qhinga 2011 (2) SACR 378 (CC). See also Shinga (note 441 above).
464
Mabapa v S 2004 (1) BCLR 73 (T).
465
Ibid [14].
466
For a more extensive discussion of remedies, see Chapter 8 above.
467
See eg S v Mark 2001 (1) SACR 572 (C). (Exclusion was sought on the basis that the witnesses’
constitutional rights had been violated.) See also Schwikkard & Van der Merwe (note 33 above) at 12 8 3.
468
See DT Zeffertt, A Paizes & A Skeen The South African Law of Evidence (2003) 625–630; Schwikkard &
Van der Merwe (note 33 above) at 12 4 offer a detailed discussion of the history and the rationale of the rule.
469
See eg S v Motloutsi 1996 (1) SACR 78 (C); S v Mayekiso 1996 (2) SACR 298 (C); S v Hammer 1994 (2)
SACR 496 (C).
470
See eg S v Melani 1995 (2) SACR 141 (E); S v Melani 1996 (1) SACR 335 (E).
805
Once it has been established that a right in the Bill of Rights was unjustifiably
infringed471 in obtaining the evidence in question, a court must exclude the evidence if
its admission would: (a) render the trial unfair; or (b) otherwise be detrimental to the
administration of justice. To admit evidence that would render the trial unfair will
always be detrimental to the interests of justice. However, if admission would not render
the trial unfair, its admission might nevertheless be detrimental to the interests of justice.
The section is peremptory insofar as it directs the court to exclude evidence once the
court has determined that admission would render the trial unfair or otherwise be
detrimental to the administration of justice.472 The court must exercise a value
judgement in ascertaining whether either of these two conditions for exclusion exists: it
is in this sense that the section is discretionary.473
A prerequisite for exercising such discretion is the establishment of a link between
the violation of the right and the procurement of the evidence. Although this has
received relatively little attention from the South African courts, it would appear that a
generous approach is favoured in terms of which evidence obtained after the breach will
be viewed as being obtained as a result of the breach—unless the accused had an
opportunity to reassert his rights and broke the chain of events.474 In order for the
evidence to fall within the scope of s 35(5), it makes no difference whether the evidence
was procured by the state or a private person as long as the state seeks to use it,475 and it
was obtained as a consequence of a constitutional violation.476 In S v Mthembu477 the
source of the evidence in question was not the accused but a state witness who had been
subject to torture during the investigation some four years prior to the trial. As a
consequence of the torture two items of real evidence highly pertinent to multiple
charges of robbery were obtained. The court found that there was nothing in s 35(5) of
the Constitution to suggest that its provisions requiring the courts to exclude, in certain
circumstances, evidence unconstitutionally obtained, did not apply to a person other
than the accused. Cachalia JA held the fact that the witness’s subsequent testimony was
voluntary did not negate the fact that the relevant evidence was obtained through torture.
The fact that the evidence was ‘real’ in nature and probably reliable could not assist the
prosecution in the face of such an ‘egregious human rights violation’.478 The court held
that to admit the evidence would be:
tantamount to involving the judicial process in ‘moral defilement’. This ‘would compromise
the integrity of the judicial process (and) dishonour the administration of justice’. In the long
471
Where evidence is not obtained in violation of the Bill of Rights but it is nevertheless determined that its
admission would render the trial unfair then such evidence should be excluded by virtue of the court’s
common-law discretion to exclude improperly obtained evidence. See S v Kidson 1999 (1) SACR 338 (W); S v
Mansoor 2002 (1) SACR 629 (W); S v Hena 2006 (2) SACR 33 (E). (Plasket J held that a non-Chapter 2 breach
compounded a Chapter 2 breach.) Compare S v Nnasolu 2010 (1) SACR 561 (KZP); S v Nelushi 2006 (1) SACR
462 (V). See also Schwikkard & Van der Merwe (note 33 above) 12 8 2.
472
See S v Soci 1998 (2) SACR 275 (E) 394–395. See also Schwikkard & Van der Merwe (note 33 above)
12 8; N Steytler (note 42 above) 36.
473
See Pillay v S 2004 (2) BCLR 158 (SCA); S v Lottering 1999 (12) BCLR 1478 (N). See also Schwikkard &
Van der Merwe (note 33 above) 12 8; N Steytler Constitutional Criminal Procedure (1998) 36.
474
See Soci (note 472 above) 293g–294d. See also Zeffertt et al (note 469 above) 638; Schwikkard & Van der
Merwe (note 33 above) 12 8 2.
475
See S v Dube 2000 (1) SACR 53 (N); S v Hena 2006 (2) SACR 33 (E). Cf S v Mansoor 2002 (1) SACR 629
(W). See Schwikkard & Van der Merwe (note 33 above) 12 8 4.
476
See S v M 2002 (2) SACR 411 (SCA).
477
2008 (2) SACR 407 (SCA).
478
Ibid [31] and [36].
806
term, the admission of torture-induced evidence can only have a corrosive effect on the
criminal justice system. The public interest, in my view, demands its exclusion, irrespective
of whether such evidence has an impact on the fairness of the trial.479
The court was nevertheless prepared to admit other evidence that was also probably
referred to in the statement obtained by torture on the basis that it was discovered
independently prior to any constitutional violation.480
In the absence of a constitutional breach, the evidence may still be excluded in
terms of the courts common law discretion to exclude evidence improperly
obtained.481
(b) When will the admission of evidence render a trial unfair?

If the admission of evidence would be unfair to the prosecution, should it be excluded on
that ground alone? It is clearly the accused’s constitutional right to a fair trial which is
sought to be protected by s 35 as a whole, and consequently it would be consistent to
interpret s 35(5) of the Constitution as being primarily concerned with protecting the
accused’s right to a fair trial.482 However, fairness to the prosecution may well be a
factor to be taken into account in determining whether the admission of evidence would
‘otherwise be detrimental to the administration of justice’.483 Exclusion of evidence that
would result in substantial unfairness to the prosecution may well be detrimental to the
administration of justice.
The broad formulation of the right to a fair trial in S v Zuma484 and S v Dzukuda485
provides grounds for arguing that even if one of the discrete sub-rights enumerated in
s 35(3) as a component of the right to a fair trial is infringed, the admission of evidence
procured as a result of such an infringement will not necessarily render the trial unfair.
Although it can be argued that this approach requires a degree of agility in separating
two inquiries—namely (a) has a fair trial right been breached and (b) will admission of
the evidence obtained as a result of the fair trial breach render the trial unfair—the
courts have clearly shown themselves capable of meeting this challenge.486
Consequently, if the breach of a recognised fair trial right is neither deliberate nor
flagrant and despite the violation, the ‘police conduct was objectively reasonable having
regard to the facts of the case,’487 the admission of evidence might not render the trial
unfair.488
479
2008 (2) SACR 407 (SCA) [36].
480
Ibid [35].
481
See eg S v Mthethwa 2004 (1) SACR 449 (E) where the court exercised its common-law discretion to
exclude evidence obtained in breach of the Judges’ Rules on the basis that it would render the trial unfair and
bring the administration of justice into disrepute.
482
See Schwikkard & Van der Merwe (note 33 above) 12 9.
483
Compare S v Madiba 1998 (1) BCLR 38 (D). See Schwikkard & Van der Merwe (note 33 above) 12 9 who
suggest that unfairness to the prosecution is a factor that can be taken into account in determining trial fairness
vis-à-vis the accused.
484
1995 (1) SACR 568 (CC).
485
2000 (2) SACR 443 (CC).
486
See S v Lottering 1999 (12) BCLR 1478 (N); S v Madiba 1998 (1) BCLR 38 (D); Key v Attorney-General,
Cape Provincial Division 1996 (2) SACR 113 (CC); S v M 2002 (2) SACR 411 (SCA); S v Ngcobo 1998 (10)
BCLR 1248 (N). Compare S v Naidoo 1998 (1) SACR 479 (N)
487
Schwikkard & Van der Merwe (note 33 above) 12 9 4.
488
See eg S v Lottering 1999 (12) BCLR 1478 (N); S v Dos Santos 2010 (2) SACR 382 (SCA); S v Nell 2009
(2) SACR 37 (C).
807
In determining whether the admission of evidence will render a trial unfair, the court
will take into account a complex matrix of competing and complementary factors. The
court must take into account competing societal interests. In Lawrie v Muir, Lord
Cooper expressed the conflict as follows:
From the standpoint of principle it seems to me that the law must strive to reconcile two
highly important interests which are liable to come into conflict—(a) the interest of the
citizen to be protected from illegal or irregular invasions of his liberties by the authorities,
and (b) the interest of the State to secure that evidence bearing upon the commission of
crime and necessary to enable justice to be done shall not be withheld from Courts of law on
merely formal or technical ground.489
Other factors the court will take into account include: the type and degree of breach;490
the type and the degree of prejudice to the accused—if any;491 and public policy.492
Partially due to the distinction made between testimonial or communicative acts
and non-testimonial conduct resulting in the production of real evidence,493 and the
fact that real evidence inevitably exists irrespective of the constitutional breach, a
court is less likely to find that the admission of real evidence will undermine trial
fairness.494 However, the courts are likely to be more cautious in admitting real
evidence discovered as a result of a testimonial communication following a breach of
the privilege against self-incrimination. In S v Pillay the Supreme Court of Appeal,
obiter, appears to have approved the approach taken by the Canadian Supreme Court
in Burlingham v The Queen495 in terms of which ‘evidence derived (real or other)
from conscriptive evidence, ie self-incriminating evidence obtained through a
violation of a Charter right, will be excluded on grounds of unfairness if it is found
that but for the conscriptive evidence the derivative evidence would not have been
discovered’.496 The Supreme Court of Appeal, finding that the real evidence had
been discovered as a consequence of an infringement of the accused’s right to
privacy (and not in breach of a fair trial right), held that the admission of the
impugned evidence would render the trial unfair.497 Despite the speed of the
discovery, the court excluded the real evidence on the basis that its admission would
be detrimental to the administration of justice. This approach was confirmed in S v
Tandwa.498 Although the accused in this case pointed out certain items of real
evidence (money and an AK47), the court accepted that the pointing-out had been
made as a consequence of various acts of police brutality directed at the accused.
The trial judge, whilst excluding statements accompanying the pointing-out, admitted
the real evidence on the basis that it would be detrimental to the administration of
489
Lawrie v Muir 1950 SC (J) 16, 26–27. See eg Soci (note 472 above).
490
S v Seseane 2000 (2) SACR 225 (O). See eg in Lottering (12) BCLR 1478 (N) 1483D–E in which the court
held that a flagrant and deliberate violation of a constitutional right must inevitably result in exclusion. See also
S v Mphala 1998 (1) SACR 388 (W).
491
Soci (note 472 above); Lottering (note 488 above).
492
Ibid.
493
Section 218 of the Criminal Procedure Act 51 of 1977 provides for the admission of real evidence
discovered as a consequence of an inadmissible admission or confession but is subject to s 35(5).
494
Zeffertt et al (note 468 above) 639–641; Schwikkard & Van der Merwe (note 33 above) 12 9 6. See eg S v
Mkhize 1999 (2) SACR 632 (W); S v R 2000 (1) SACR 33 (W); S v M 2002 (2) SACR 411 (SCA).
495
Burlingham v The Queen (1995) 28 CRR (2d) 244.
496
2004 (2) SACR 419 (SCA) [89].
497
Ibid [90].
498
2008 (1) SACR 613 (SCA).
808
justice to exclude it as it had existed independently prior to the police brutality and
that the accused had been well positioned to provide an exculpatory explanation for
his possession of the real evidence.
The Supreme Court of Appeal held that the trial judge had erred and that s 35(5)
of the Constitution ‘plainly envisages cases where evidence should be excluded for
broad public policy reasons beyond fairness to the individual accused’.499
Though ‘hard and fast rules’ should not be readily propounded, admitting real evidence
procured by torture, assault, beatings and other forms of coercion violates the accused’s fair
trial right at its core, and stains the administration of justice. It renders the accused’s trial
unfair because it introduces into the process of proof against him evidence obtained by
means that violate basic civilised injunctions against assault and compulsion. And it impairs
the administration of justice more widely because its admission brings the entire system into
disrepute, by associating with barbarous and unacceptable conduct.500
(c) When will the admission of evidence be otherwise detrimental to the

administration of justice?
The admission of evidence that would render the trial unfair will always be detrimental
to the administration of justice. As a result, there will inevitably be an overlap between
the two inquiries impelled by s 35(5). The inquiry as to whether the admission of the
evidence would be otherwise detrimental to the administration of justice arises when it
is determined that the admission of the evidence would not render the trial unfair. The
competing public interests identified in Lawrie v Muir501 remain and, in relation to this
second component of the s 35(5) test, were described in S v Mphala as follows:
So far as the administration of justice is concerned, there must be a balance between, on the
one hand, respect (particularly by law enforcement agencies) for the Bill of Rights and, on
the other, respect (particularly by the man in the street) for the judicial process.
Overemphasis of the former would lead to acquittals on what would be perceived by the
public as technicalities whilst overemphasis of the latter would lead at best to a dilution of
the Bill of Rights and at worst to its provisions being negated.502
Far greater weight is accorded to public opinion in determining whether admission
would ‘otherwise be detrimental to the administration of justice’. Unfortunately the high
crime rate in South Africa—and concern about retaining public confidence in the
criminal justice system—has resulted in a few courts503 and commentators being
reluctant to stay within the parameters of the approach advocated by the Canadian
Supreme Court in R v Collins.504 The Collins approach requires a court to take into
account the views of the reasonable person, who is usually the average person in the
community, ‘but only when the community’s current mood is reasonable’.505 However,
499
2008 (1) SACR 613 (SCA) [116].
500
Ibid [120].
501
Lawrie v Muir 1950 SC (J) 16.
502
S v Mphala 1988 (1) SACR 388 (W) 657g–h.
503
See eg the following statement of Combrinck J in S v Ngcobo 1998 (10) BCLR 1248 (W) at 1254: ‘At the
best of times but particularly in the current state of endemic violent crime in all parts of our country it is
unacceptable to the public that such evidence be excluded. Indeed the reaction is one of shock, fury and outrage
when a criminal is freed because of the exclusion of such evidence’. See also the dissenting judgment of Scott JA
in S v Pillay (note 496 above). See also Schwikkard and Van der Merwe (note 33 above) 235.
504
R v Collins 1987 (28) CCR 122.
505
Ibid [136].
809
the court in exercising its discretion must consider ‘long-term community values’ and
not ‘render a decision that would be unacceptable to the community when that
community is not being wrought with passions or otherwise under passing stress due to
current events’.506 The danger of not giving due accord to ‘long-term community
values’ is that the educational role decisions of the court play in promoting
constitutional values is sacrificed to the more expedient demands of placating the
public.507
To date it would appear that the approach taken by the courts in the vast majority
of cases has been rather prudent. Indeed, the courts have identified a number of
factors that militate against admission. The evidence should not be admitted if its
admission would encourage ‘police officers to ignore or overlook the constitutional
protection afforded to accused persons’.508 In this regard the absence of good faith
and reasonableness in police conduct would constitute a barrier to admission.509
However, good faith will not be sufficient where the infringement is a result of
systemically poor practices: good faith cannot save improper conduct that arises from
incorrect training, instruction or departmental directives.510 Evidence will be
excluded if its admission ‘might create an incentive for law enforcement agents to
disregard an accused person’s constitutional rights’.511 The good faith must also be
reasonable.512 Conduct in reasonable good faith has been associated with the need to
promote public safety and urgency.513
The nature and extent of the violation will inevitably be factors taken into
consideration by the court in the exercise of its s 35(5) discretion in regard to both
legs of the inquiry.514 If there were alternative lawful means of obtaining the
evidence, then the breach will be regarded as more serious.515 If it is real evidence
that is in issue, which pre-existed the breach,516 and it would have been discovered
in any event, then it is more likely to lead to the conclusion that its exclusion would
not be detrimental to the administration of justice.517 However, even if all these
conditions exist in relation to real evidence, the court will still consider its
506
R v Collins 1987 (28) CCR 122 [136].
507
See S v Naidoo 1998 (1) SACR 479 (N) 531a–b. McCall J writes: ‘There may be those members of the
public who will regard the exclusion of the evidence as being evidence of undue leniency towards criminals. The
answer to that is that crime in this country cannot be brought under control unless we have an efficient, honest,
responsible and respected police force, capable of enforcing the law. One of the mistakes which must be learnt
from the past is that illegal methods of investigation are unacceptable and can only bring the administration of
justice into disrepute, particularly when they impinge upon the basic human rights which the Constitution seeks
to protect.’
508
S v Lottering 1999 (12) BCLR 1478 (N) 1483H.
509
See eg S v Naidoo 1998 (1) SACR 479 (N); S v Mphala 1998 (1) SACR 388 (W) and S v Hena 2006 (2)
SACR 33 (E) in which the absence of good faith was taken into account in excluding the evidence. Whereas the
absence of bad faith and clearly reasonable conduct on the part of the police in S v Madiba 1998 (1) BCLR 38 (D)
played an important role in the admission of the evidence. Cf S v Motloutsi 1996 (1) SACR 78 (C).
510
See eg S v Soci 1998 (2) SACR 275 (E). Cf S v Tsotetsi (1) 2003 (2) SACR 623 (W) read together with S v
Tsotetsi (3) 2003 (2) SACR 648 (W).
511
S v Pillay 2004 (2) SACR 419 (SCA) [94].
512
See Zeffertt et al (note 468 above) 639; Schwikkard & Van der Merwe (note 33 above) 12 10 1.
513
See eg S v Madiba 1998 (1) BCLR 38 (D); S v Lottering 1999 (12) BCLR 1478 (N).
514
See S v Mark 2001 (1) SACR 572 (C); S v Mkhize 1999 (2) SACR 632 (W); S v Pillay (note 496 above).
515
S v Pillay (note 496 above); S v Hena (note 509 above).
516
S v Pillay (note 496 above).
517
See Schwikkard & Van der Merwe (note 33 above) 12 10 6 who note that ‘[t]his seems to have been part of
the reasoning of the full bench in S v Mkhize 1999 (2) SACR 632 (W)’.
810
admissibility in relation to all relevant facts.518 For example, in S v Pillay519 the

court found that the real evidence in question would have been found irrespective of
the breach against self-incrimination. (It would have been found in any event as a
result of an earlier breach of the right to privacy arising out of an improper
telephone tap.) The court held that to admit a statement elicited from a person on a
false undertaking that they would not be charged ‘would be more harmful to justice
than advance it’.520 In reaching its conclusion, the court noted that in a society with
a high crime rate the public must be encouraged to assist the police.521 False
undertakings undermine the public’s faith in the criminal justice system.
(d) Entrapment
Section 252A(3)(a) of the Criminal Procedure Act 51 of 1977 reads:
If a court in criminal proceedings finds that in the setting of a trap or the engaging in an
undercover operation the conduct goes beyond providing an opportunity to commit an
offence, the court may refuse to allow such evidence to be tendered or may refuse to allow
such evidence already tendered, to stand, if the evidence was obtained in an improper or
unfair manner and that the admission of such evidence would render the trial unfair or would
otherwise be detrimental to the administration of justice.522
In those instances where the entrapment evidence was unconstitutionally obtained,
s 252A(3)(a) remains subject to the provisions of s 35(5).523 The burden of proving
admissibility rests on the state and this must be discharged on a balance of
probabilities.524
(e) Trial-within-a-trial
Section 252A(7) of the Criminal Procedure Act 51 of 1977 directs that the determination
of admissibility in terms of s 252A(3)(a) should take place in a trial-within-a-trial.
Similarly, a determination of the admissibility of unconstitutionally obtained evidence
in terms of s 35(5) of the Constitution should generally be made during a trial-within-a-
trial.525 However, the trial-within-a-trial may not be necessary where the facts are not
disputed in any material way526 or where voluntariness is not in issue.527 In S v
518
S v Pillay (note 496 above).
519
Ibid.
520
Ibid [96]. Cf Wesso v Director of Public Prosecutions, Western Cape 2001 (1) SACR 674 (C).
521
S v Pillay (note 496 above) [96].
522
Section 252A(3)(b) instructs the court in determining the admissibility of evidence ‘to weigh up the public
interest against the personal interest of the accused’ and list a number of factors that must be taken into account
in engaging in this exercise. For an example of the application of s 252A see Amod v S 2001 (4) All SA 13 (E).
523
S v Odugo 2001 (1) SACR 560 (W). See also S v Spies 2000 (1) SACR 312 (SCA); Mendes v Kitching
1995 (2) SACR 634 (E); S v Dube 2000 (2) SA 583 (N); S v Hassen 1997 (3) BCLR 377 (T); S v Hayes 1998 (1)
SACR 625 (O); S v Reeding 2005 (2) SACR 631 (C). See generally Zeffertt et al (note 468 above) 643; Du Toit
et al (note 11 above) 24–134.
524
S v Reeding 2005 (2) SACR 631 (C); compare S v Kotze where Wallis AJA obiter suggests that the standard
of proof beyond a reasonable doubt is required in order to make the section constitutionally compliant.
525
S v Ntzweli 2001 (2) SACR 361 (C); S v Mhlakaza 1996 (2) SACR 187 (C); S v Maake 2001 (2) SACR 288
(W); S v Ngcobo 1998 (10) BCLR 1248 (N); S v Mayekiso 1996 (2) SACR 298 (C). Cf S v Vilakazi 1996 (1)
SACR 425 (T). See also S v Viljoen 2003 (4) BCLR 450 (T) in which the court held that the determination of a
constitutional violation must be held prior to and separately from a trial-within-a-trial to determine the
admissibility of a confession or other extra-curial statement.
526
S v Kidson 1999 (1) SACR 338 (W).
527
S v Matsubu 2009 (1) SACR 513 (SCA).
811
Tsotestsi528 Visser AJ held that a rule on admissibility in a trial-within-a-trial was

interlocutory and could be reviewed at the end of the trial in light of all the evidence.
Cloete JA in S v Maputle 529 noted that the fact that the nature of the impugned evidence
becomes known to the court during s 35(5) proceedings will not render the trial
automatically unfair.
528
S v Tsotestsi and Others (3) 2003 (2) SACR 648 (W) at 654. Cf S v Ntuli 1993 (2) SACR 599 (W).
529
2003 (2) SACR 15 (SCA) [11].
812
Chapter Thirty-three
States of Emergency
33.1 The nature of an emergency clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 816
33.2 The difference between derogation of rights during an emergency
and the limitation of rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 818
33.3 When may an emergency be declared? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 818
33.4 Declaring a state of emergency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 819
33.5 Emergency measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 820
33.6 Detention without trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 820
33.7 Non-derogable rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 821
States of emergency
37. (1) A state of emergency may be declared only in terms of an Act
of Parliament, and only when—
(a) the life of the nation is threatened by war, invasion, general
insurrection, disorder, natural disaster or other public emergency;
and
(b) the declaration is necessary to restore peace and order.
(2) A declaration of a state of emergency, and any legislation
enacted or other action taken in consequence of that declaration, may
be effective only—
(a) prospectively; and
(b) for no more than 21 days from the date of the declaration, unless
the National Assembly resolves to extend the declaration. The
Assembly may extend a declaration of a state of emergency for no
more than three months at a time. The first extension of the state
of emergency must be by a resolution adopted with a supporting
vote of a majority of the members of the Assembly. Any
subsequent extension must be by a resolution adopted with a
supporting vote of at least 60 per cent of the members of the
Assembly. A resolution in terms of this paragraph may be adopted
only following a public debate in the Assembly.
(3) Any competent court may decide on the validity of—
(a) a declaration of a state of emergency;
(b) any extension of a declaration of a state of emergency; or
(c) any legislation enacted, or other action taken, in consequence of a
declaration of a state of emergency.
813
(4) Any legislation enacted in consequence of a declaration of a

state of emergency may derogate from the Bill of Rights only to the
extent that—
(a) the derogation is strictly required by the emergency; and
(b) the legislation—
(i) is consistent with the Republic’s obligations under
international law applicable to states of emergency;
(ii) conforms to subsection (5); and
(iii) is published in the national Government Gazette as soon as
reasonably possible after being enacted.
(5) No Act of Parliament that authorises a declaration of a state of
emergency, and no legislation enacted or other action taken in
consequence of a declaration, may permit or authorise—
(a) indemnifying the state, or any person, in respect of any unlawful
act;
(b) any derogation from this section; or
(c) any derogation from a section mentioned in column 1 of the Table
of Non-Derogable Rights, to the extent indicated opposite that
section in column 3 of the Table.
Table of Non-Derogable Rights

1 2 3
Section Section title Extent to which the right is
number non-derogable
9 Equality With respect to unfair
discrimination solely on the
grounds of race, colour, ethnic
or social origin, sex, religion or
language
10 Human dignity Entirely
11 Life Entirely
12 Freedom and security of With respect to subsections
the person (1)(d) and (e) and (2)(c)
13 Slavery, servitude and With respect to slavery and
forced labour servitude
28 Children With respect to:
— subsection (1)(d) and (e);
— the rights in subparagraphs
(i) and (ii) of subsection
(1)(g); and
— subsection 1(i) in respect of
children of 15 years and
younger
814
States of Emergency
1 2 3
Section Section title Extent to which the right is
number non-derogable
35 Arrested, detained and With respect to:
accused persons — subsections (1)(a), (b) and
(c) and (2)(d);
— the rights in paragraphs (a)
to (o) of subsection (3),
excluding paragraph (d)
— subsection (4); and
— subsection (5) with respect to
the exclusion of evidence if
the admission of that
evidence would render the
trial unfair.
(6) Whenever anyone is detained without trial in consequence of a

derogation of rights resulting from a declaration of a state of
emergency, the following conditions must be observed:
(a) An adult family member or friend of the detainee must be
contacted as soon as reasonably possible, and informed that the
person has been detained.
(b) A notice must be published in the national Government Gazette
within five days of the person being detained, stating the
detainee’s name and place of detention and referring to the
emergency measure in terms of which that person has been
detained.
(c) The detainee must be allowed to choose, and be visited at any
reasonable time by, a medical practitioner.
(d) The detainee must be allowed to choose, and be visited at any
reasonable time by, a legal representative.
(e) A court must review the detention as soon as reasonably possible,
but no later than 10 days after the date the person was detained,
and the court must release the detainee unless it is necessary to
continue the detention to restore peace and order.
(f) A detainee who is not released in terms of a review under
paragraph (e), or who is not released in terms of a review under
this paragraph, may apply to a court for a further review of the
detention at any time after 10 days have passed since the
previous review, and the court must release the detainee unless it
is still necessary to continue the detention to restore peace and
order.
815
(g) The detainee must be allowed to appear in person before any

court considering the detention, to be represented by a legal
practitioner at those hearings, and to make representations against
continued detention.
(h) The state must present written reasons to the court to justify the
continued detention of the detainee, and must give a copy of those
reasons to the detainee at least two days before the court reviews
the detention.
(7) If a court releases a detainee, that person may not be detained
again on the same grounds unless the state first shows a court good
cause for re-detaining that person.
(8) Subsections (6) and (7) do not apply to persons who are not
South African citizens and who are detained in consequence of an
international armed conflict. Instead, the state must comply with the
standards binding on the Republic under international humanitarian law
in respect of the detention of such persons.
33.1 THE NATURE OF AN EMERGENCY CLAUSE

Section 37 is a provision of the Bill of Rights that one hopes will remain obscure and
unused. In that spirit, we will deal with it only briefly in this chapter. The section is
intended to set out when, and under what conditions, a state of emergency may be
declared and fundamental rights suspended. An emergency may only be declared when
the life of the nation is threatened and exceptional measures are temporarily necessary to
restore peace and order. The rights in the Bill of Rights may only be derogated from to
the extent strictly required to restore peace and order and certain rights may not be
derogated from at all.
Most international human rights instruments and many national constitutions contain
provisions similar to s 37.1 This indicates general acceptance of the idea that in
abnormal circumstances (and only in those circumstances) the need to protect the ‘life of
the nation’ justifies the temporary suspension of certain fundamental rights. For this
reason, international human rights law is a useful source of comparison when
interpreting s 37.2
South Africa has had considerable experience of states of emergency, which were
declared on several occasions by the apartheid government to stifle opposition against
its policies. They resulted in gross violations of human rights. Thousands of people
(including children) were detained without trial, gatherings were prohibited, protest was
1
For example art 15, European Convention for the Protection of Human Rights and Fundamental Freedoms;
art 27, American Convention on Human Rights; art 4, International Covenant on Civil and Political Rights. These
clauses are also referred to as derogation, suspension or emergency clauses. On national constitutions, see V
Ramraj & M Guruswamy ‘Emergency Powers’ in Tushnet, Fleiner & Saunders (eds) Handbook 85.
2
G Erasmus ‘Limitation and Suspension’ 650, Fritz ‘States of Emergency’ in Woolman, Bishop & Brickhill
(eds) Constitutional Law of South Africa [61.3(b)]. The international legal principles can be found in a report of
the International Commission of Jurists called the Siracusa Principles on the Limitation and Derogation
Provisions in the International Covenant on Civil and Political Rights (reprinted in (1985) 7 Human Rights
Quarterly 1088). Another useful source is the International Law Association’s Paris Minimum Standards of
Human Rights Norms in a State of Emergency (reprinted in (1985) American J of Int Law 1073).
816
States of Emergency 33.1
routinely quelled with excessive force and organisations and newspapers were banned.
Protection by the courts was, for all practical purposes, non-existent.3
The current dispensation is fundamentally different. Human rights are now protected
by a supreme and justiciable Constitution and the suspension of rights will only be
possible under the conditions prescribed by s 37. The declaration of a state of
emergency, its extension, and the measures that can be taken during the emergency are
all justiciable. This means that the courts can control states of emergency and can ensure
that the Constitution’s requirements are met. The jurisdiction of the courts cannot be
ousted during an emergency.4 Parliament has also been given an important supervisory
function over the conduct of the emergency.5 These provisions are intended to end the
uncontrolled power of the executive that was the characteristic of states of emergency
under apartheid.
It might be argued that provisions permitting the suspension of human rights do not
belong in a Bill of Rights. But to omit such provisions can, ironically, contribute to
undermining the protection of fundamental rights. In times of war or when there is a
serious threat to the existence of the state, exceptional measures may be inevitable.
Without constitutional provisions permitting and controlling states of emergency,
emergency measures may be invoked on extra-constitutional grounds such as the maxim
salus reipublicae suprema lex, martial law or ‘prerogative’ powers. By accepting that
emergencies may occur, by providing clear rules as to when they may be declared, and
by laying down what may be done during their duration and how abuse of power will be
prevented, states of emergency can be made compatible with the protection of human
rights and judicial review. Further, by constitutionalising states of emergency, the
danger that they might become permanent is addressed.6
3
For a discussion of the states of emergencies under apartheid, see Dugard Human Rights 110–23, A Mathews
Freedom, State Security and the Rule of Law (1986), S Ellmann In a Time of Trouble: Law and Liberty in South
Africa’s State of Emergency (1992).
4
A characteristic feature of the apartheid states of emergency was the curtailment of judicial oversight over the
conduct of the emergency. This was achieved by ousting the jurisdiction of the courts to enquiry into the validity
of legislative and executive measures. In addition, administrative discretion was couched in subjective terms, so
as to limit the power of the court to review decisions. Finally, far-reaching indemnities protected state officials
from any legal consequences of actions and decisions taken during the emergency. See N Haysom ‘States of
Emergency’ in H Cheadle et al (eds) South African Constitutional Law: The Bill of Rights (2002) 715, 726.
5
A proclamation declaring a state of emergency (and any regulations made in terms of it) must ‘be laid upon
the Table in Parliament by the President as soon as possible’ (s 3(1), State of Emergency Act 64 of 1997). In
terms of s 37(2)(b) of the Constitution, an emergency may only last for 21 days, unless extended by resolution of
the National Assembly for three months at a time. Public debate should precede any resolution by the National
Assembly to extend the emergency. Regulations, orders, rules or by-laws made in pursuance of a declared
emergency must be tabled in Parliament. The National Assembly may ‘disapprove’ of them or may make
recommendations in connection with them, to the President. If disapproved, they lapse (s 4(b)(ii), State of
Emergency Act). The normal functioning of Parliament and of provincial legislatures during an emergency is
expressly protected. Legislative powers, privileges or immunities may not be amended or suspended
(s 2(3)(b)(iii), State of Emergency Act). In this way, the possibility of indirectly undermining the guarantees
applicable in a state of emergency (by preventing the supervisory institutions such as Parliament from
functioning) becomes constitutionally impossible.
6
See S Ellmann ‘A Constitution for all Seasons: Providing against Emergencies in a Post-Apartheid
Constitution’ (1989) Columbia Human Rights Law Review 163, 167.
817
33.2 THE DIFFERENCE BETWEEN DEROGATION OF RIGHTS DURING AN EMERGENCY

AND THE LIMITATION OF RIGHTS
The limitation section of the Constitution forms part of the routine method of
application of the rights in the Bill of Rights. Section 36 of the Constitution provides
that rights are not absolute and may legitimately be limited by law when there are good
reasons for doing so and to the extent that the limitation is proportional to those reasons.
The limitation clause therefore applies in ‘normal’ times and forms part of the
day-to-day implementation of human rights.
In a state of emergency, these ordinary mechanisms are not sufficient and exceptional
measures are necessary to deal with a threat to the life of the nation. Such measures may
entail derogation from certain human rights for the duration of the emergency. The
drastic cutting-back of fundamental rights is justified because the ordinary law and the
usual powers available to the authorities have become inadequate in the light of the
threat facing the nation. For example, during a state of emergency the authorities
typically impose curfews in certain areas, usually requiring people to remain indoors
after daylight hours. The curfew constitutes a derogation from the right of freedom of
movement. It will be permissible if required by the circumstances of the emergency. In
normal times, a curfew will not be permissible because it will limit the right of freedom
of movement in a manner that is unlikely to be justifiable in terms of s 36.
33.3 WHEN MAY AN EMERGENCY BE DECLARED?

A state of emergency may be declared when there is a ‘threat to the life of the nation’.7
Such a threat can be caused by war, invasion, general insurrection, disorder, natural
disaster or other public emergency. The mere existence of some kind of disorder will
not, however, satisfy the test of s 37(1). To justify the declaration of a state of
emergency the threat or danger must also be of such gravity that the exceptional
measures of a state of emergency are necessary to restore peace and order. If peace and
order can be restored or maintained under the ordinary law (for example, the criminal
law and public order legislation), s 37 cannot be invoked.8 Once peace and order are
restored the justification for a state of emergency falls away and it should end.
States of emergency are measures of last resort. Since they allow for drastic inroads
into the rights of people and the normal functioning of the democratic order, their power
should be invoked with utmost caution. The normal constitutional order may not readily
be suspended.
When is the life of the nation threatened? This requires the existence of an
exceptional and genuine threat. According to a decision of the European Court of
Human Rights, a state of emergency can be justified only by ‘an exceptional situation of
crisis which affects the whole population and constitutes a threat to the organized life of
the community of which the state is composed’.9 In a later decision, the European Court
7
The interim Constitution used the term ‘where the security of the Republic is threatened’. ‘Threat to the life
of the nation’ is closer to the phrase employed in most international instruments.
8
The ‘normal’ provisions of the law must first be exhausted, before derogation is resorted to. See J Oraá
Human Rights in States of Emergency in International Law (1992) 29–30.
9
Lawless Case ECHR Series A Vol 3 (1961) [28]. Here, a declaration of emergency by the Republic of Ireland
was found to be acceptable because of the ‘imminent danger to the nation’ caused by the activities of the Irish
Republican Army in Ireland. According to the court, the following circumstances justified the declaration of an
emergency: ‘the existence in the territory of the Republic of Ireland of a secret army engaged in unconstitutional
818
States of Emergency 33.3–33.4
listed several requirements that had to be met before the derogation section of the
European Convention10 could be invoked: (1) the threat must be actual or imminent; (2)
its effects must involve the whole nation; (3) the continuance of the organised life of the
nation must be threatened; (4) the crisis or danger must be exceptional, in that the
normal measures or restrictions permitted by the Convention for the maintenance of
public safety, health and order, are plainly inadequate.11
A ‘state of emergency’ differs from a ‘state of national defence’. International law
outlaws the aggressive use of force in international relations.12 The use of force is only
permissible in self-defence13 or as a collective measure authorised by the Security
Council of the United Nations acting under Chapter 7 of the UN Charter. For this
reason, the South African Constitution does not authorise the declaration of war.
Instead, s 203 permits the President to declare ‘a state of national defence’. This would
happen if the Republic were attacked and would amount to a lawful act of self-defence
in international law. According to the Constitutional Court, a declaration of a state of
national defence does not constitute a declaration of martial law. Nor can it, in itself,
lead to the suspension of the Constitution or any of its provisions.14
33.4 DECLARING A STATE OF EMERGENCY

A state of emergency cannot apply retrospectively and must be officially declared.
Section 37(1) permits the declaration of a state of emergency only ‘in terms of an Act of
Parliament’. The relevant Act is the State of Emergency Act 64 of 1997, s 1 of which
provides that ‘the President may by Proclamation in the Gazette declare a state of
emergency in the Republic or in any area within the Republic’. A de facto state of
emergency cannot, therefore, exist. The public must be fully informed about the
existence of the emergency and about all the measures taken in terms of it.15 The reasons
for the state of emergency must also be included in the Proclamation.16
A state of emergency comes to an end when its declaration is withdrawn by
proclamation of the President17 or in terms of s 37(2)(b) of the Constitution.18 Any
competent court may decide on the validity of a declaration of a state of emergency or
activities and using violence to attain its purposes; secondly, the fact that this army was also operating outside the
territory of the State, thus seriously jeopardising the relations of the Republic of Ireland with its neighbour;
thirdly, the steady and alarming increase in terrorist activities from the autumn of 1956 and throughout the first
half of 1957’.
10
Article 15 (measures derogating from human rights permissible ‘in time of war or other public emergency
threatening the life of the nation’).
11
Greek Case, Yearbook XII of the European Convention on Human Rights (1969) 72. See also P van Dijk &
GJH van Hoof Theory and Practice of the European Convention on Human Rights 2 ed (1990) 552.
12
Article 2(4) United Nations Charter; and see General Assembly Resolution 2625 (XXV) 1970; General
Assembly Resolution 3314 (XXIX) 1974 on the Definition of Aggression.
13
Article 51, United Nations Charter.
14
It may provide grounds for the declaration of a state of emergency in terms of s 37(1), but in that event all
the provisions of s 37 would remain applicable. Certification of the Amended Text of the Constitution of the
Republic of South Africa, 1996 1997 (2) SA 97 (CC) [45].
15
See also s 2(1)(b) of the State of Emergency Act and s 37(4)(b)(iii) of the Constitution.
16
Section 1(2), State of Emergency Act.
17
18
This section provides for an emergency to last for 21 days, unless extended by resolution (with 60 per cent
majority) of the National Assembly. Such extension may not be for longer than 3 months at a time.
819
its extension.19 This means that the requirements of s 37(1) as to the conditions which
must exist in order to justify such a declaration (that there is a threat to the life of the
nation and that emergency powers are indeed necessary to restore peace and order) are
justiciable. An emergency will not be justified if the ordinary law of the land is sufficient
to accomplish a restoration of peace and order. The requirement of ‘necessity’ suggests
a proportionality test.20
33.5 EMERGENCY MEASURES

Once a state of emergency has been declared, exceptional measures necessary to restore
peace and order may be taken. The President may, by proclamation in the Gazette, make
regulations ‘as are necessary or expedient to restore peace and order’.21 Presidential
regulations may impose penalties for contraventions of the regulations.
The most direct consequence of a state of emergency is that measures can be taken
that derogate from the protection normally afforded by the Bill of Rights. Derogation is,
however, carefully circumscribed by s 37. A derogation must be proportional22 to the
emergency, and the legislation made in consequence of an emergency must be made
public,23 may not derogate from the list of non-derogable rights, must comply with
South Africa’s obligations under international law and may not indemnify the state or
any person in respect of unlawful acts.24 These requirements are all justiciable. It is also
specifically provided that no derogation from s 37 itself is permissible.25 This means
that the jurisdiction of the courts cannot be ousted during emergencies.
The State of Emergency Act, in addition, limits terms of imprisonment for
contraventions of emergency regulations to three years; forbids the rendering of military
service other than as provided for in the Defence Act; and protects the powers of
Parliament and provincial legislatures.
33.6 DETENTION WITHOUT TRIAL

Detention without trial, particularly during states of emergency, was one of the
trademark excesses of apartheid rule. This matter is now carefully regulated through the
emergency clause. In terms of s 37(b) it is possible to detain people without trial, but
detailed rules exist to protect detainees, who will have access to a legal representative, a
19
Section 37(3) of the Constitution. On the meaning of ‘competent court’, see Chapter 5 above. In brief, the
High Court would be competent to adjudicate on the validity of a declaration or extension, but a High Court order
invalidating a declaration of a state of emergency by the President would have to be confirmed by the
20
Proportionality (ie, a declaration of an emergency must be a proportionate response to the threat that is
faced) is a specific international law requirement with several manifestations. The Siracusa Principles (note 2
above) provide that the ‘severity, duration and geographic scope of any derogation measure shall be such only as
are strictly necessarily to deal with the threat to the life of the nation and are proportionate to its nature and
extent’. It would, for example, be disproportionate to deny the right to vote due to the exigencies caused by a
flood: S Joseph et al The International Covenant on Civil and Political Rights: Cases, Materials and
Commentary (2000) 627. See, generally, Erasmus (note 2 above) ‘Limitation and Suspension’ 661–63. Fritz (note
2 above) [61.4(b)] argues that ‘necessity’ is not the same as proportionality and entails a different test: ‘the state
[must] have no alternative means at its disposal, no less restrictive or less harmful measures to deploy’.
21
Sections 2(1)(b) and 3(1), State of Emergency Act; s 37(4)(b)(iii) of the Constitution.
22
Section 37(5)(a).
23
Section 37(5)(b), Constitution; s 2(3)(a), State of Emergency Act.
24
Section 2(3)(b), State of Emergency Act.
25
820
States of Emergency 33.6–33.7
medical practitioner, family or friends. The courts will be able to review detention
orders and may order the release of detainees ‘unless it is necessary’ to continue their
detention to restore peace and order.
These rules aim at ensuring that people can only be detained without trial for the
specific purpose of restoring peace and order during an emergency. The government will
have to justify to a court the continued detention of such people. International
humanitarian organisations (such as the Red Cross) will have access to detainees in
order to monitor the conditions under which they are detained.
Section 37 aims, in particular, at preventing detainees from ‘disappearing’. It is then
when they are extremely vulnerable and often the victims of abuses such as torture.
When a country is involved in an international armed conflict, captured or
surrendered foreign soldiers are held as ‘prisoners of war’ and must be treated in
accordance with the standards of international humanitarian law.26 Section 37(8)
provides for the same approach: foreign soldiers detained ‘in consequence of an
international armed conflict’ are not held as ordinary s 37 detainees. They are instead
prisoners of war and are entitled to the protection of international humanitarian law in
accordance with South Africa’s international law obligations.
33.7 NON-DEROGABLE RIGHTS

Certain rights may not be derogated from during an emergency, or may only be
derogated from to a certain extent. These are set out in the ‘Table of Non-Derogable
Rights’ which forms part of s 37. The Table lists the non-derogable rights by section
number and title and indicates the extent to which the particular right is non-derogable.
It is common practice in the international instruments to protect four rights as
non-derogable: the right to life; the right to be free from torture or inhuman or degrading
treatment; freedom from slavery and servitude; and the right to be free from a
retroactive application of penal laws.27 Section 37 covers this ground but is also wider in
that it includes the right to non-discrimination, certain children’s rights and aspects of
the right to freedom of the person, particularly the right not to be detained without trial.
The identification of certain rights as non-derogable implies that their suspension cannot
directly assist in the objective of protecting the life of the nation. For example, there is
no additional protection of the life of the nation to be gained from suspending the right
to human dignity or the right of children to be protected from abuse or maltreatment.
The fact that some rights are derogable does not make them ‘weaker’ rights and does not
make the non-derogable rights ‘core rights’ or ‘superior rights’.28 They may still only be
derogated from to the extent ‘strictly required by the emergency’.
26
Contained in the 1949 Geneva Conventions and the 1977 Protocols thereto.
27
Erasmus (note 2 above) 660.
28
Haysom (note 4 above) 728.
821
Index
A
ABORTION 265–267, 286
ACADEMIC FREEDOM 351–352
ACCESS TO CONSTITUTIONAL COURT see CONSTITUTIONAL COURT:
access to
ACCESS TO COURTS
abolition of causes of action 727–728
access to justice 712–714
amnesty 722
arbitration and 730
audi alteram partem 740
commissions of enquiry 735–736
costs orders 728–730
courts of traditional leaders 738–739
disputes that can be resolved by courts 712–714
estoppel 731–732
fair public hearing 739–743
independence and impartiality 732–735
judicial commissions 735–736
limitation on appeal and review 730–731
magistrates’ courts 736–738
notice provisions 722–727
ouster clauses 714
prescription 722–727
prohibition of self-help 717–721
public hearings 742–743
purpose of right 710–712
reasons for decisions 731
res judicata 731–732
revenue collection 719
security for costs 728–730
tribunals and forums 739
vexatious litigation 721
‘where appropriate’ another independent and impartial tribunal or forum 732
ACCESS TO HEALTH CARE, FOOD, WATER AND SOCIAL SECURITY
children’s rights and 610–612
content of right 591–592
emergency medical treatment 592–594
ACCESS TO INFORMATION
arrested, detained and accused persons 788–790
burden of persuasion 708
commercial confidentiality 697–698, 705
disclosure as objective 708
origins of right 692–694
823
ACCESS TO INFORMATION (continued)

privately held information 700–702
Promotion of Access to Information Act 2 of 2000 (PAIA)
general 694–695
giving effect to right 698
interpretation of 696–709
limitation of constitutional right by 705–708
principles of interpretation 708–709
purpose of Act 697–709
purposive interpretation 696–697
relationship between s 32 and 695–696
promotion of good government 698–699
protection of privacy 699–700
‘required for the exercise or protection of any rights’ 702–705
requirement of enabling legislation 693
withholding information is exceptional 708
ACCESS TO JUSTICE
access to courts 712–714
equality 247–248
ACCOUNTABILITY 14–17
ACTIO INIURIARUM 256
ADMINISTRATIVE ACTION
application of rights to 653–666
constitutional conception of 653–654
constitutionalism of administrative law 647–648
delegated legislation 650–651, 672
judicial review governed by PAJA 648–653
labour law and 479–480
lawfulness
under Constitution 666–667
under PAJA 667–668
under principle of legality 668–669
legitimate expectation 675–677, 680
limitation of rights 161–162
ouster clauses 645, 666
principle of legality 668–669, 688–690
procedural fairness
affecting any person 674–678
affecting the public 678–681
under Constitution 672–674
under principle of legality 682
Promotion of Administrative Justice Act 3 of 2000 (PAJA)
acting in terms of any legislation 660
adversely affecting rights 661
‘capacity to affect legal rights’ 661–662
decisions 654–658
direct, external legal effect 663–665
exclusions 665–666
824
Index
ADMINISTRATIVE ACTION, Promotion of Administrative Justice Act (continued)

general 654–656
lawfulness 667–668
natural or juristic persons 658
organs of state 658
whose rights must be adversely affected 662–663
reasonableness
under Constitution 669
under principle of legality 671–672
under rule of law 671–672
relationship between Constitution, PAJA and common law 646–653
right to reasons
in absence of request 687–688
adequacy of reasons 685–686
under principle of legality 688
requests 686–687
triggering of 682–685
unfair labour practices in public sector 479
ADMINISTRATIVE LAW
constitutionalism of 647–648
remedies 205
ADMISSIONS 772–773
ADOPTIONS 607–608
ADVERTISING 361–362
AFFIRMATIVE ACTION
employment equity 512
equality 241–244
labour discrimination 499–512
liability 514–515
plan 513–514
policing 514
reporting 513
test for 412
AFRICAN CHARTER ON HUMAN AND PEOPLES’ RIGHTS 573
AGE DISCRIMINATION 232–234
AGENCY SHOP AGREEMENTS 483–486
AGNOSTICISM 316, 633
ALIENAGE DISCRIMINATION 446–447
ALTERNATIVE CARE 607–609
AMICI CURIAE 131–132
AMNESTY 722
APPEALS
to Constitutional Court
from High Court 124–126
from Supreme Court of Appeal 126–127
criteria for 122–124
limitation on 730–731
against orders of invalidity concerning conduct of President 119
825
APPEALS (continued)
against orders of invalidity of legislation 119
procedure 119–122
right to for arrested, detained and accused persons 802–805
APPLICATION OF BILL OF RIGHTS
under 1996 Constitution 33–34
application clause 30, 33
direct application see DIRECT APPLICATION OF BILL OF RIGHTS
direct horizontal application see DIRECT HORIZONTAL APPLICATION OF
BILL OF RIGHTS
direct vertical application see DIRECT VERTICAL APPLICATION OF BILL OF
RIGHTS
distinction between indirect and direct 66
indirect application see INDIRECT APPLICATION OF BILL OF RIGHTS
indirect application considered before direct 67–71
jurisdiction 66
under interim Constitution 32–33
manner of in legal disputes 66–69
meaning of ‘application’ 31
objective constitutional invalidity 51, 54
purpose and effect of direct and indirect applications 67
remedies 177–178
temporal application see TEMPORAL APPLICATION OF BILL OF RIGHTS
territorial application see TERRITORIAL APPLICATION OF BILL OF RIGHTS
ARBITRARINESS 10–14
ARBITRATION 479–480, 730
ARRESTED, DETAINED AND ACCUSED PERSONS
access to electricity 786
access to information 788–790
adequate time and facilities to prepare defence 788
admissions and confessions 772–773
appeal and review rights 802–805
ascertainment of bodily features 773–776
bail 779–783
blood samples 775
charge 787
children 786–787
contempt of court 788, 796–797
criminal justice system and 747
criminal trial proceedings 750–753
cross-examination 790–794
docket access 782–783, 788–790
double jeopardy 801–802
fingerprints 773–774
hearsay evidence 792–793
humane conditions of detention 783–787
identification parades 775–776
judicial bias 797–798
language to be understandable for 800
826
Index
ARRESTED, DETAINED AND ACCUSED PERSONS (continued)

legal representation 768–772
life imprisonment 796
medical treatment 785–786
onus of proof 778–781
before ordinary court 795–797
palm-prints 773–774
presence of accused 790
presumption of innocence
rationale of 753–755
reverse onus 756–758
scope of 755
principle of legality 800
public trial 795
release from detention 776–783
right not to testify during proceedings 758–768
right to adduce evidence 794–795
right to be placed under judicial authority 773–776
right to communicate 786
right to remain silent
content and rationale 758–759
negative inferences 760–768
plea proceedings 759–760
scope of right 742–743
self-incrimination
privilege against 768–772
right not to be giving evidence 758–768
summary proceedings 787–788
trial without unreasonable delay 798–800
unconstitutionally obtained evidence
detrimental to administration of justice 809–811
entrapment 811
scope of discretion and rationale 805–807
trial-within-a-trial 811–812
when trial will be rendered unfair 807–809
what constitutes an arrested, detained or accused person 748–750
ASSEMBLY
content neutrality 390–391
demonstrations 386–387
grounds for 385–386
internal modifiers 384
peaceful 384
petitions 387
picketing 387
private property and 388–389
purpose of 377–380
827
ASSEMBLY (continued)
regulation of
apartheid and 380–381
new statutory framework 381–383
Regulation of Gatherings Act 205 of 1993 381–383
security and order 389–390
strikes and 497
time, place and manner of restrictions 391–395
unarmed 384–385
ASSOCIATION see FREEDOM OF ASSOCIATION
ASSOCIATIVE EDUCATION RIGHTS
right to establish private education institutions 639–642
right to receive education in official language of choice 638–639
ATHEISM 316, 633
AUDI ALTERAM PARTEM 673, 740
B
BAIL
freedom and security of the person 280
BEST INTEREST PRINCIPLE 619–623
BILL OF RIGHTS
application of see APPLICATION OF BILL OF RIGHTS
duties under 41–45
interpretation of see INTERPRETATION OF BILL OF RIGHTS
litigation see LITIGATION
BLANKET DOCKET PRIVILEGE 788 see also DOCKET ACCESS
BLASPHEMY 376
BLOOD SAMPLES 287, 775
BODILY AND PSYCHOLOGICAL INTEGRITY 286
BROADCASTING
court proceedings 348–350
regulation of 347–348
BURDEN OF PROOF see ONUS
C
CAPITAL PUNISHMENT see DEATH PENALTY
CHECKS AND BALANCES 20–22
CHILDREN’S RIGHTS
adoptions 607–608
alternative care 607–609
armed conflict and 619
best interest principle 619–623
child and youth care centres 609
children’s autonomy and protection 601–603
children’s rights clause 599–601
detention 615–617, 786–787
exploitative labour practices 614–615
family care 604–607
828
Index
CHILDREN’S RIGHTS (continued)

foster care 608–609
health care rights and 610–612
legal representation 617–619
neglect, abuse or degradation 612–614
paramountcy principle 621–623
parental care 604–607
right to a name 603–604
right to nationality 603–604
socio-economic rights of children separated from parents 612
socio-economic rights vis-à-vis basic rights to nutrition, shelter, health care
610–612
CITIZENSHIP
alienage discrimination 446–447
citizens living abroad 432–434
diplomatic protection 447–450
international law 443–444
jus sanguinis 443
jus soli 443
loss and deprivation of 444–445
passport rights 453–454
rights, privileges and benefits 445–446
significance of 442–443
statelessness 443–445, 604
CLASS ACTIONS 81–83
CLOSED SHOP AGREEMENTS 483–486
COLLECTIVE BARGAINING 488–495
COMMERCIAL CONFIDENTIALITY 697–698, 705
COMMERCIAL EXPRESSION 361–362
COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION
(CCMA) 479–480
COMMISSIONS OF ENQUIRY 735–736
COMMON LAW
defamation 366–367
expression 375–376
fairness 480–481
indirect application of Bill of Rights
duty to develop 60–61
limits on 63
methodology 61–63
relationship between PAJA and 651–652
religious marriages 335–336
right to privacy 295–297
COMPENSATION FOR EXPROPRIATION 550–553
CONFESSIONS 772–773
CONSCIENCE, MEANING 316
829
CONSTITUTION
administrative action under
reasonableness 669
basic principles of new order 7–22 see also ACCOUNTABILITY; CHECKS AND
BALANCES; CONSTITUTIONALISM; DEMOCRACY; RULE OF LAW;
SEPARATION OF POWERS
certification of 6–7
equality clause compared with interim Constitution 215–217
interim see INTERIM CONSTITUTION
negotiation 4–6
procedurally fair administrative action 672–674
relationship between Constitution and 649–651
structure of judicial system under 92–95
supremacy 2, 5, 9, 46, 145, 189, 348
transformation 1–4
CONSTITUTIONAL COURT
access to
appeals 118–127
confirmation of orders of invalidity 114–118
direct access 127–130
exclusive jurisdiction matters 114
admission of amici curiae 131–132
appeals
from High Court 124–126
from Supreme Court of Appeal 126–127
composition 106–107
functions 105–106
joinder 130–131
jurisdiction
constitutional matters 97–100
criteria governing 97–107
exclusive 102–105, 114
general 96, 100–102
interest of justice 100
proposed amendments 96–97
supervisory 102–103
quorum 106–107
CONSTITUTIONALISM
of administrative law 647–648
Constitutional supremacy 9
entrenchment 10
justiciability 9–10
as principle of new order 8–10
CONSTITUTIONAL SUPREMACY 2, 5, 9, 46, 145, 189, 348
CONTEMPT OF COURT 205–206, 788, 796–797
CO-OPERATIVE GOVERNMENT 124, 129–130
CORPORAL PUNISHMENT 322, 408, 416, 602, 613–614, 637
COSTS ORDERS 728–730
830
Index
COURTS see ACCESS TO COURTS

CRIMINAL ASSOCIATIONS 397–398
CRIMINAL JUSTICE SYSTEM 747, 753, 770, 775, 791, 795, 797
CRIMINAL TRIAL PROCEEDINGS see ARRESTED, DETAINED AND
ACCUSED PERSONS
CROSS-EXAMINATION 790–794
CRUEL, INHUMAN AND DEGRADING TREATMENT AND PUNISHMENT
freedom of the person 283–286
human dignity 254
CULTURAL ASSOCIATIONS 408–410
CULTURAL DISCRIMINATION 235
CULTURAL, RELIGIOUS AND LINGUISTIC ASSOCIATIONS 635–636
CULTURAL, RELIGIOUS AND LINGUISTIC COMMUNITIES see also
MINORITY RIGHTS
associative education rights see ASSOCIATIVE EDUCATION RIGHTS;
EDUCATION RIGHTS
consistency with Bill of Rights 636–638
individual rights exercised communally 626–628
language of choice 634–635
members of 628–630
participation in cultural life 638
right to form associations 635–636
right to practice religion in community with others 633–634
CUSTOMARY MARRIAGES see TRADITIONAL MARRIAGES
D
DAMAGES
claims derived directly from Constitution 203–204
general 200–201
general principles 201–203
indirect application of Bill of Rights 203
loss of profit 203
punitive 201–202
DATA PROTECTION 303, 694, 699
DEATH PENALTY 260, 283–284
DECLARATION OF INVALIDITY
controlling impact 185–189
general principles 200
reading in of words 187–189
retrospective effect 189–192
severance 185–187
socio-economic rights 594
suspension of order of
exercise of suspension power 192–195
extension of 195
purpose and effect 192
DECLARATIONS OF RIGHTS 195–197
831
DEFAMATION
common law 366–367
discrimination and 236
expression and 365–374
indirect application of Bill of Rights 366–367
pre-1994 law 366
DELEGATED LEGISLATION
administrative action 650–651, 672
confirmation of orders of invalidity by Constitutional Court not required 116
law of general application 157–159
Magistrates’ Courts 111–112
orders of invalidity 116
pre-1994 provincial legislation 117–118
DEMARCATIONS OF RIGHTS 174–175
DEMOCRACY
direct 16
participatory 15–16
political associations 404–405
representative 15
DEMOLITIONS 586–591
DEMONSTRATION see ASSEMBLY
DEPORTATION 263, 280
DEPRIVATION OF PROPERTY
arbitrariness 540–547
expropriation and 538–539
law of general application 539–540
procedural fairness 540–542
substantive arbitrariness 542–547
DETENTION
access to electricity 786
children’s rights 615–617
concept of 749–750
humane conditions of detention 783–787
medical treatment 785–786
right to communicate 786
DETENTION WITHOUT TRIAL
freedom of the person 279–281
states of emergency 820–821
DIFFERENTIATION
differentiation and discrimination distinguished 218–219
between provinces 219
rationality 218–222
rule of law rationality 222
DIGNITY see HUMAN DIGNITY
DIPLOMATIC PROTECTION 447–450
832
Index
DIRECT APPLICATION OF BILL OF RIGHTS see also DIRECT HORIZONTAL

APPLICATION OF BILL OF RIGHTS; DIRECT VERTICAL APPLICATION
OF BILL OF RIGHTS; TEMPORAL APPLICATION OF BILL OF RIGHTS;
TERRITORIAL APPLICATION OF BILL OF RIGHTS
agreement not to claim benefits 38–39
beneficiaries of 34–41
direct horizontal 41–42
distinction between indirect and 31, 66
duties under Bill of Rights 41–45
indirect application considered before 67–71
juristic persons 35–38
natural persons and 34–35
waiver 38–41
DIRECT DEMOCRACY 16
DIRECT HORIZONTAL APPLICATION OF BILL OF RIGHTS
duties of private actors 45–50
general 41–42
interpretation of s 8(2) 48–50
property rights 553–554
redundancy 45–48
DIRECT VERTICAL APPLICATION OF BILL OF RIGHTS
duties of state actors 42–45
executive 42–43
general 41–42
judiciary 44–45
legislatures 42
organs of state 43–44
DISABILITY DISCRIMINATION 234–235
DISCRIMINATION see also EQUALITY
age 232–234
alienage 446–447
analogous grounds 236–238
birth and social origin 235–237
defamation and 236
direct and indirect 238–240
disability 234–235
fair discrimination 224–225
gender, sex, pregnancy 227–228
labour see LABOUR DISCRIMINATION
marital status 232–233
need not be intentional 240–241
race, colour, ethic origin 227
religion, conscience and belief, culture and language 235
sexual orientation
decriminalisation 228–229
exclusion from benefits 229–230
exclusion from institution of marriage 230–231
833
DISCRIMINATION (continued)
unfair discrimination
general 225–226
presumption of 224
unfair impact 223–224
DIVORCE PROCEEDINGS 350
DOCKET ACCESS 782–783, 788–790
DOCTRINE OF CONTINENTIA CAUSAE 83
DOCTRINE OF OBJECTIVE INVALIDITY
standing 76–77
temporal application of Bill of Rights 52
DOUBLE JEOPARDY 801–802
E
ECONOMIC ACTIVITY see FREEDOM OF TRADE, OCCUPATION AND
PROFESSION
ECONOMIC ASSOCIATIONS 410–411
EDUCATIONAL INSTITUTIONS 639–642
EDUCATION RIGHTS see also CULTURAL, RELIGIOUS AND LINGUISTIC
COMMUNITIES
choice of language 638–639
right to establish private education institutions 639–642
ELECTIONS 427–430
ELECTORAL CODE OF CONDUCT 425
ELECTRONIC SURVEILLANCE 313
EMERGENCY see STATES OF EMERGENCY
EMERGENCY MEDICAL TREATMENT 592–594
EMPLOYERS’ ORGANISATIONS 482–486
EMPLOYMENT EQUITY 497–512 see also LABOUR DISCRIMINATION
EMPOWERING ASSOCIATIONS 411–412
ENTRAPMENT 811
ENVIRONMENTAL RIGHTS
access to water 525–526
application of 527–528
approaches to 516–517
Constitution and 517–529
enforcement of rights 526–527
environmental rights clause 518–525
environment not harmful to health or well-being 518–522
protection through legislation 522–525
realisation of 428–530
relationship between environmental rights clause and other rights 525–527
EQUALITY
affirmative action 241–244
association 404
834
Index
EQUALITY (continued)
differentiation
discrimination distinguished from 218–219
between provinces 219
rationality 218–222
rule of law rationality 222
discrimination 222–241 see also DISCRIMINATION
formal and substantive equality 213–215
historical and social context 211–213
interpretation of equality clause 215–218
promotion of 248–249
Promotion of Equality and Prevention of Unfair Discrimination Act 244–249
provisions under interim Constitution compared with 1996 Constitution 215
relationship between equality clause and general limitation clause 217–218
stages of enquiry 215–217
unfair discrimination 245–247
ESSENTIAL SERVICES 496
‘ESTABLISHMENT CLAUSE’ JURISPRUDENCE IN UNITED STATES 325–326
ESTOPPEL 731–732
ETHNIC DISCRIMINATION 227
EUTHANASIA 265–267
EVICTIONS 199, 203, 553, 569, 586–591, 716
EVIDENCE
exclusion of 205
hearsay 792–793
right to adduce 794–795
search and seizure
admissibility of improperly obtained during 308–310
civil proceedings 310–311
unconstitutionally obtained
detrimental to administration of justice 809–811
entrapment 811
scope of discretion and rationale 805–807
trial-within-a-trial 811–812
when trial will be rendered unfair 807–809
EXPRESSION
academic freedom 351–352
advertising 361–362
artistic creativity 351
blasphemy 376
commercial expression 361–362
defamation and 365–374
dissemination and publication of information that unfairly discriminates 360
exclusions 353
false speech 343
freedom of press and other media 343–350
freedom to receive and impart information and ideas 350–351
free speech in legislatures 352–353
835
EXPRESSION (continued)
hate speech 353–354, 356–361
incitement of imminent violence 355–356
meaning 341–343
pornography 363–365
prior restraint on publication 374–375
propaganda for war 354–355
reading down 375–376
scientific research 351–352
EXPROPRIATION
compensation 550–553
definition of 547–550
deprivation of property and 538–539
timing and manner of compensation 553
F
FAIR LABOUR PRACTICES
codification of ‘unfair labour practice’ 477–478
influence of 1956 Labour Relations Act 476–477
right to 476–478
FAIR TRIAL RIGHTS 349, 365, 417–419, 739–742, 750–751, 788, 792
FALSE SPEECH 343
FAMILY CARE 604–607
FAMILY LIFE 256–257
FINAL INTERDICTS 198–199
FINGERPRINTS 773–774
FOOD RIGHTS see ACCESS TO HEALTH CARE, FOOD, WATER AND SOCIAL
SECURITY
FORCED LABOUR 291–293
FOREIGN NATIONALS 453–454
FORUMS AND TRIBUNALS 739
FOSTER CARE 608–609
FREEDOM FROM VIOLENCE 281–283
FREEDOM OF ASSEMBLY see ASSEMBLY
FREEDOM OF ASSOCIATION
capture 400
as constitutive 398–399
as correlative 397–398
cultural, religious and linguistic associations 635–636
dissociation 400–402
limitation of rights
analysis in context 403–406
banning 403–404
character of analysis 402–403
coercion 405
836
Index
FREEDOM OF ASSOCIATION, limitation of rights (continued)

cultural associations 408–410
democracy 404–405
economic associations 410–411
empowering associations 411–412
equality 404
grounds for infringements 403–406
intimate associations 407–408
political associations 406–407
religious associations 414–417
security forces 412–414
small social associations 412
voluntary associations and fair hearings 417–419
standing 84
unprotected associations
criminal associations 397–398
promoting non-peaceable governmental change 398
FREEDOM OF EXPRESSION see EXPRESSION
FREEDOM OF MOVEMENT AND RESIDENCE
apartheid 451–452
foreign nationals and immigration 454–455
passport rights 453–454
refugees 455–457
right to enter, remain and reside in RSA 453
FREEDOM OF RELIGION, BELIEF AND OPINION see RELIGION, BELIEF
AND OPINION
FREEDOM OF THE PERSON
cruel, inhuman and degrading treatment and punishment 283–286
deprivation of physical freedom 272–273
deportation 263, 280
detention without trial 279–281
freedom from violence 281–283
just cause 273–277
narrow interpretation of ‘freedom’ 270–271
procedural protection 277–279
substantive and procedural components of the right 271–279
substantive protection 273–277
FREEDOM OF THE PRESS
broadcasting and access to court proceedings 348–350
disclosure of journalists’ sources 344–347
press exceptionalism 343–344
regulation of broadcasting 347–348
restrictions on divorce proceedings 350
FREEDOM OF TRADE, OCCUPATION AND PROFESSION
beneficiaries of 463–464
choice of trade, occupation or profession 464–467
interim Constitution 458–461
interpretation of right 462–463
837
FREEDOM OF TRADE, OCCUPATION AND PROFESSION (continued)

liquor trading 459–461
practice of trade, occupation or profession 467–469
‘referral rule’ 466
restraint of trade 469–471
FREE SPEECH 352–353 see also EXPRESSION
G
GAMBLING 757
GATHERINGS see ASSEMBLY; REGULATION OF GATHERINGS ACT 205 OF
1993
GENDER DISCRIMINATION 227–228
H
HABEAS CORPUS 777
HATE SPEECH 353–354, 356–361
HEALTH CARE RIGHTS see ACCESS TO HEALTH CARE, FOOD, WATER
AND SOCIAL SECURITY
HEARSAY EVIDENCE 792–793
HIGH COURTS
appeals to Constitutional Court 124–126
grant of interim relief 108–110
jurisdiction 107–108
rationalisation of structure 95–96
HISTORY
certification of Constitution 6–7
constitutional revolution 1–4
negotiation process 4–6
HIV/AIDS 181–182, 197, 237–238, 508–509, 511–512, 568, 577, 593–594, 597, 611,
785
HOMOSEXUALITY 229–231, 318–319, 418
HORIZONTAL APPLICATION OF BILL OF RIGHTS see direct horizontal
application of Bill of Rights
HOUSING RIGHTS
access to adequate housing 584–585
protection against evictions or demolitions 586–591
reasonable measure to achieve progressive realisation 585–586
HUMAN DIGNITY
actio iniuriarum 256
central value of Constitution 250–253
cruel, inhuman and degrading treatment 254
imprisonment 254–255
life imprisonment 255
marriage and family life 256–257
privacy and 301–302
punishment and 254–255
I
IDENTIFICATION PARADES 775–776
IMMIGRATION 453–454
838
Index
IMPRISONMENT 254–255
INDIRECT APPLICATION OF BILL OF RIGHTS
common law
duty to develop 60–61
limits on 63
methodology 61–63
considered before direct application 67–71
damages 203
defamation 366–367
distinction between direct and 31, 66
general principles 56–57
to legislation
interpretation in conformity 59–60
methodology 58–59
scope of duty 57–58
stare decisis 63–65
INFORMATION see ACCESS TO INFORMATION
INFORMATIONAL PRIVACY 302–304
INNOCENCE see PRESUMPTION OF INNOCENCE
INTERDICTORY RELIEF
final interdicts 198–199
interim relief 198
socio-economic rights 595
structured interdicts 199–200
INTERESTS OF JUSTICE 100, 122–129, 726
INTERIM CONSTITUTION
economic activity 458–461
equality clause 215–217
negotiation and 6–7
structure of judicial system under 92
INTERIM RELIEF
grant of by Supreme Court of Appeal and High Courts 108–110
remedies 198
INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL
RIGHTS OF 1966 (ICESCR) 570–573
INTERPRETATION CLAUSE 48–50, 146–149, 217–218
INTERPRETATION OF BILL OF RIGHTS
context
drafting history 142–143
historical 141–143
political history 141–142
textual 143–145
generous interpretation 138–140
interpretation clause 30–31, 146–149
purposive interpretation 136–138
role of text 135–136
stages of 133–134
839
INTERPRETATION OF BILL OF RIGHTS (continued)

‘travaux preparatoires’ 142
INTIMATE ASSOCIATIONS 407–408
J
JOINDER 130–131
JUDICIAL BIAS 797–798
JUDICIAL COMMISSIONS 735–736
JUDICIAL REVIEW 648–649
JUDICIAL SYSTEM
structure
1996 Constitution 92–95
interim Constitution 92
superior court structure 95–96
JURISDICTION
admission of amici curiae 131–132
Constitutional Court
criteria governing 97–107
general 96
proposed amendments 96–97
high courts 107–110
joinder 130–131
litigation and 25, 28
Magistrates’ Courts 110–114
relationship between remedies and 91–92
remedies 178
structure of judicial system 92–96
Supreme Court of Appeal 107–110
JURISTIC PERSONS
administrative action under PAJA 658
direct application of Bill of Rights 35–38
JUST ADMINISTRATIVE ACTION see ADMINISTRATIVE ACTION
JUSTICIABILITY
Constitutionalism 9–10
limitations on 72–73
mootness
exceptions 88–89
ripeness 85–87
socio-economic rights 565–584
standing see STANDING
L
LABOUR DISCRIMINATION see also EMPLOYMENT EQUITY
affirmative action 499–512
defences 501–502
direct or indirect 499
840
Index
LABOUR DISCRIMINATION (continued)

employment equity 497–512
HIV 508–509, 511–512
income differentials 511
medical testing 511–512
onus of proving 498–499
psychological testing 511
racial segregation 511
sexual harassment 511
LABOUR DISPUTE RESOLUTION 473–474
LABOUR RELATIONS
administrative action 479–480
affirmative action see AFFIRMATIVE ACTION
agency shop agreements 483–486
child labour 614–615
closed shop agreements 483–486
collective bargaining 488–495
essential services 496
fair labour practices see FAIR LABOUR PRACTICES
free riders 483
labour discrimination see LABOUR DISCRIMINATION
labour dispute resolution structure 473–474
remedies 205
review of statutory arbitration by CCMA 479–480
right to join unions and employers’ organisations 482–486
right to picket 496–497
right to strike 495–497
trade union rights 486–488
LAND REFORM 559–562, 589
LANGUAGE see also CULTURAL, RELIGIOUS AND LINGUISTIC
COMMUNITIES
to be understandable for arrested, detained and accused persons 800
of choice for education 634–635
LEGALITY see PRINCIPLE OF LEGALITY
LEGAL REPRESENTATION 220–221, 617–619, 741–742, 775–776, 768–772
LEGISLATION
delegated see DELEGATED LEGISLATION
indirect application of Bill of Rights to
interpretation in conformity 59–60
methodology 58–59
scope of duty 57–58
LEGITIMATE EXPECTATION
administrative action 675–677, 680
of privacy 297–298, 312
LIFE
abortion 265–267
death penalty 260
deportation 263
841
LIFE (continued)
euthanasia 265–267
importance of right to 258–259
killing when making an arrest 261–262
necessity 260–261
right life worth living for 267–268
right not be killed 260–262
right to vests in everyone 259–260
self-defence 260–261
state’s duty to protect 262–265
ubuntu 259, 590
unqualified right 259
LIFE IMPRISONMENT 255, 616, 796
LIMITATION OF RIGHTS
assembly 387–395
association see FREEDOM OF ASSOCIATION: limitation of rights
children’s rights 621–623
criteria justifying 155–172
demarcations of rights 174–175
law of general application
authorised by law 155–156
general application 156–161
limitation clause (s 36) 150–155
means to achieve purpose 170–171
nature and extent of limitation 168–169
nature of the right 164–165
by other provisions of Constitution 172–173
proportionality 163–164
purpose of limitation 166–168
reasonableness and justifiability 162–171
relation between limitation and its purpose 169–170
religion 319–325
s 36 enquiry 171–172
special limitations 174–175
LIQUOR TRADING 326–329, 459–461
LITIGATION
application 24–25, 28
interpretation 26, 28
jurisdiction 25, 28
justiciability 25, 28
limitation of rights 26, 28
onus 27
principle of avoidance 24–25
procedural issues 24–25, 28
remedies 26, 28
842
Index
LITIGATION (continued)
stages of 24–28
substantive questions 26, 28
LOCUS STANDI see STANDING
LOSS OF PROFIT 203
M
MAGISTRATES’ COURTS
access to courts 736–738
delegated legislation 111–112
jurisdiction 110–114
MARRIAGE
discrimination based on
exclusion from institution of 230–231
marital status 232–233
human dignity and 256–257
traditional 333–334
MEDICAL OR SCIENTIFIC EXPERIMENTS 287–288
MEDICAL TESTING 511–512
MEDICAL TREATMENT
detention 785–786
socio-economic rights 592–594
MENTAL HEALTH DETAINEES 434
MENTALLY DISABLED PERSONS 434
MINORITY RIGHTS 625–626
MOOTNESS
exceptions 88–89
MOVEMENT AND RESIDENCE see FREEDOM OF MOVEMENT AND
RESIDENCE
N
NAMES 603–604
NATIONALITY 603–604
NATURAL PERSONS
direct application of Bill of Rights 34–35
NEMO IUDEX IN SUA CAUSA 673
NEMO TENETUR SE IPSUM PRODERE 774
NON-DEROGABLE RIGHTS 820–821
NON-RETROSPECTIVITY RULE 53–55
O
OBJECTIVE CONSTITUTIONAL INVALIDITY 51, 54, 76–77
OCCUPATIONS see FREEDOM OF TRADE, OCCUPATION AND PROFESSION
OFFICIAL LANGUAGES see LANGUAGE
ONUS
labour discrimination 498–499
litigation and 27
843
OPINION, MEANING 316

ORDERS OF INVALIDITY
confirmation by Constitutional Court
conduct of President 118
not required for orders concerning delegated legislation 116
pre-1994 provincial legislation 117–118
scope and purpose of power 114–116
delegated legislation 116
ORGANISATIONAL RIGHTS 486–488
ORGANS OF STATE
direct vertical application of Bill of Rights 43–44
OUSTER CLAUSES 645, 666, 714
P
PAJA see PROMOTION OF ADMINISTRATIVE JUSTICE ACT 3 OF 2000 (PAJA)
PALM-PRINTS 773–774
PARAMOUNTCY PRINCIPLE 621–623
PARENTAL CARE 604–607
PARLIAMENTARY SOVEREIGNTY 2–3, 46
PARTICIPATORY DEMOCRACY 15–16
PERSONAL RIGHTS 252, 258, 536–537
PETITION see ASSEMBLY
PICKET see ASSEMBLY
POLYCENTRICITY 565–566
POLITICAL ASSOCIATIONS 404–407
POLITICAL PARTIES
Electoral Code of Conduct 425
general 422–423
media coverage 425
registration of 423–424
retention and loss of membership of legislatures 425–427
state funding 424–425
POLITICAL RIGHTS
free, fair and regular elections 427–430
freedom to make political choices 422–427
historical context 421–422
political parties see POLITICAL PARTIES
right to stand for election to public office 440–441
right to vote see VOTING RIGHTS
POLYGYNY 333–334
PORNOGRAPHY 363–365
PREGNANCY DISCRIMINATION 227–228
PRESCRIPTION 722–727
PRESIDENT
conduct of President
appeals against orders of invalidity 119
orders of invalidity 118
844
Index
PRESIDENTIAL ACT 157–158

PRESS FREEDOM see EXPRESSION; FREEDOM OF THE PRESS
PRESUMPTION OF INNOCENCE
reverse onus 756–758
scope of 755
PRINCIPLE OF AVOIDANCE 24–25, 45, 69, 72, 85, 100, 207, 528, 649
PRINCIPLE OF LEGALITY
administrative action under
procedural fairness 682
reasonableness 671–672
right to reasons 688
arrested, detained and accused persons 800
development of 688–690
rule of law 10–14
PRISONERS
human dignity 245–255
voting rights 434–437
PRIVACY
common law right to 295–297
of communications 311–313
continuum of privacy interests 298–300
electronic surveillance 313
human dignity and 301–302
informational 302–304
interception and monitoring 311–312
legitimate expectation of 297–298
protection of 699–700
relationship between common law and constitutional right to 297
search and seizure 304–311
structure of privacy clause 294–295
PRIVATE EDUCATIONAL INSTITUTIONS 639–642
PRIVATELY HELD INFORMATION 700–702
PRIVATE PROPERTY, ASSEMBLY AND 388–389
PROFESSION see FREEDOM OF TRADE, OCCUPATION AND PROFESSION
PROMOTION OF ACCESS TO INFORMATION ACT 2 OF 2000 (PAIA)
see ACCESS TO INFORMATION
PROMOTION OF ADMINISTRATIVE JUSTICE ACT 3 OF 2000 (PAJA)
administrative action see ADMINISTRATIVE ACTION
judicial review governed by 648–649
purpose of 649
relationship between common law and 651–652
relationship between Constitution and 649–651
and special statutory review 652–653
PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR
DISCRIMINATION ACT
general 244–245
845
PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR

DISCRIMINATION ACT (continued)
prevention of unfair discrimination 245–247
promotion of equality 248–249
PROPAGANDA FOR WAR 354–355
PROPERTY RIGHTS
deprivation of property see DEPRIVATION OF PROPERTY
direct horizontal application 553–554
expropriation see EXPROPRIATION
history 531–532
indirect application of 554–559
limitation of 557–559
meaning of ‘property’ 535–537
personal rights and 537
purpose of 533–534
redistribution of property 559–562
restitution 559–562
structure of analysis 534–535
PROPORTIONALITY 163–164
PROVINCIAL LEGISLATION
delegated legislation see DELEGATED LEGISLATION
orders of invalidity 117–118
PSYCHOLOGICAL TESTING 511
PUBLIC HEARING 742–743
PUBLIC INTEREST 83–84
R
RACE DISCRIMINATION 227
RACIAL SEGREGATION 511
RATIONALITY
differentiation 218–222
rule of law 222
READING DOWN 54, 58–59, 70, 74, 85, 187, 189, 375
READING IN OF WORDS 187–189
REASONS FOR DECISIONS 682–688, 731
REDISTRIBUTION OF PROPERTY 559–562
‘REFERRAL RULE’ 466
REFUGEES 455–457
REGULATION OF GATHERINGS ACT 205 OF 1993 381–383
RELIGION, BELIEF AND OPINION see also CULTURAL, RELIGIOUS AND
LINGUISTIC COMMUNITIES
agnosticism 316, 633
atheism 316, 633
discrimination 235
equal treatment 325–330
‘establishment clause’ jurisprudence in United States 325–326
free exercise of 316–325
history of relationship between church and state 314–315
homosexuality 318–319
846
Index
RELIGION, BELIEF AND OPINION (continued)

meaning 316
meaning of ‘belief’ 316
religious marriages
common law recognition 335–336
legislation recognising 333–334
religious observances in state institutions 330–333
traditional marriages 333–334
RELIGIOUS ASSOCIATIONS 414–417
RELIGIOUS MARRIAGES
common law recognition 335–336
legislation recognising 333–334
RELIGIOUS OBSERVANCE 331
REMEDIES
administrative law 205
application of Bill of Rights 177–178
appropriate relief 180–181
contempt of court 205–206
damages 200–205
declaration of invalidity 183–195
declarations of rights 196–197
difference between invalidity of unconstitutional law or conduct 179–180
effective relief 181–182
exclusion of evidence 205
fault and causation 183
good governance 182
identity of violator 182
impact of violation on victim 183
interdictory relief 197–200
interpretation and limitation 179
jurisdiction 178
labour law 205
nature of violation 182
purpose of 181
relationship between and constitutional jurisdiction 91–92
separation of powers 182
standing 178
victim responsibility 183
REPRESENTATIVE DEMOCRACY 15
RESIDENCE see FREEDOM OF MOVEMENT AND RESIDENCE
RES JUDICATA 731–732
RESTITUTION OF PROPERTY 559–562
RESTRAINT OF TRADE 469–471
REVENUE COLLECTION 719
RIGHT TO EQUALITY see EQUALITY
847
RIGHT TO LIFE see LIFE

RIGHT TO REMAIN SILENT
content and rationale 758–759
negative inferences 760–768
plea proceedings 759–760
RIPENESS 85–87
RULE OF LAW
administrative action under 671–672
principle of legality 10–14
prohibition of arbitrariness 10–14
S
SALUS REIPUBLICAE SUPREMA LEX 817
SCIENTIFIC RESEARCH 351–352
SEARCH AND SEIZURE
constitutionality of laws governing 305–308
evidence
admissibility of improperly obtained 308–310
civil proceedings 310–311
general 304–305
SECURITY FORCES 412–414
SECURITY FOR COSTS 728–730
SECURITY OF PERSON
abortion 286
bodily and psychological integrity 286
informed consent for medical or scientific experiments 287–288
medical or scientific experiments 287–288
reproduction 286
security in and control over one’s body 287–288
SELF-DEFENCE 260–261
SELF-INCRIMINATION
privilege against 768–772
right not to be giving self-criminating evidence 758–768
SEPARATION OF POWERS 18–20, 565–566
SERVITUDE see SLAVERY AND SERVITUDE
SEVERANCE AND DECLARATION OF INVALIDITY 185–187
SEX DISCRIMINATION 227–228
SEXUAL HARASSMENT 511
SEXUAL ORIENTATION DISCRIMINATION
decriminalisation 228–229
exclusion from benefits 229–230
exclusion from institution of marriage 230–231
SILENCE see RIGHT TO REMAIN SILENT
SLAVERY AND SERVITUDE 290–291
SMALL SOCIAL ASSOCIATIONS 412
SOCIAL SECURITY RIGHTS see ACCESS TO HEALTH CARE, FOOD, WATER
AND SOCIAL SECURITY
SOCIAL SERVICES 610–612
848
Index
SOCIO-ECONOMIC RIGHTS see also ACCESS TO HEALTH CARE, FOOD,

WATER AND SOCIAL SECURITY
adjudicating claims 565–568
African Charter on Human and Peoples’ Rights 573
children separated from parents 612
distinction between first-and second generation rights 559–562
food see ACCESS TO HEALTH CARE, FOOD, WATER AND SOCIAL
SECURITY
health care see ACCESS TO HEALTH CARE, FOOD, WATER AND SOCIAL
SECURITY
housing rights see HOUSING RIGHTS
International Covenant on Economic, Social and Cultural Rights of 1966 (ICESCR)
570–573
‘within its available resources’ 581–584
negative obligations 568–570
positive obligations 570, 573–584
progressive realisation 580–581
reasonable legislative and other measures 580–581
remedies for infringement of rights 594–597
social security see ACCESS TO HEALTH CARE, FOOD, WATER AND
SOCIAL SECURITY
socio-economic rights clauses 562
ubuntu 590
vis-à-vis basic rights to nutrition, shelter, health care 610–612
water see ACCESS TO HEALTH CARE, FOOD, WATER AND SOCIAL
SECURITY
STANDING
associations 84
broad approach 73–75
categories of persons 78–87
class actions 81–83
doctrine of objective invalidity 76–77
infringement or threatening of rights 78
persons acting in own interest 80
persons acting in public interest 83–84
persons acting on behalf of another person 80–81
remedies 178
sufficient interest 78–87
STARE DECISIS 63–65
STATE ACTORS 42–45
STATE-AIDED INSTITUTIONS 331
STATELESSNESS 443–445, 604
STATES OF EMERGENCY
declaration of 819–820
detention without trial 820–821
emergency measures 820
nature of emergency clause 816–818
non-derogable rights 820–821
when may be declared 818–819
849
STATUTORY REVIEW 652–653

STRIKES
essential services 497
picketing 496–497
right to 495–497
right to assemble 497 see also ASSEMBLY
STRUCTURED INTERDICTS 199–200
SUPERIOR COURTS see HIGH COURTS
SUPREME COURT OF APPEAL
appeals to Constitutional Court 126–127
jurisdiction 107
T
TEMPORAL APPLICATION OF BILL OF RIGHTS
general 51–55
matters pending on date of commencement 55
non-retrospectivity rule 53–55
which Constitution applies 51–53
TERRITORIAL APPLICATION OF BILL OF RIGHTS 55–56
THOUGHT, MEANING OF 316
TRADE see FREEDOM OF TRADE, OCCUPATION AND PROFESSION
TRADE UNION RIGHTS 486–488
TRADE UNIONS
organisational rights 486–488
right to join 482–486
TRADITIONAL LEADERS’ COURTS 738–739
TRADITIONAL MARRIAGES 333–334
TRAFFICKING OF PERSONS 291
‘TRAVAUX PREPARATOIRES’ 142
TRIBUNALS AND FORUMS 739
U
UBI IUS UBI REMEDIUM 23
UBUNTU 259, 590
UNFAIR DISCRIMINATION see DISCRIMINATION
UNFAIR LABOUR PRACTICES
codification of 477–478
practices falling outside definition 478
public sector and 479
UNPROTECTED ASSOCIATIONS 397–398
V
VERTICAL APPLICATION OF BILL OF RIGHTS see DIRECT VERTICAL
APPLICATION OF BILL OF RIGHTS
VEXATIOUS LITIGATION 721
VOLUNTARY ASSOCIATIONS 417–419
850
Index
VOTING RIGHTS
citizens living abroad 432–434
equal 430–431
exclusions from 432–437
mental health detainees 434
mentally disabled persons 434
prisoners 434–437
regulation of 437–440
secrecy of ballot 431–432
W
WAIVER OF RIGHTS 38–41
WATER RIGHTS see ACCESS TO HEALTH CARE, FOOD, WATER AND
SOCIAL SECURITY; ENVIRONMENTAL RIGHTS
851

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THE BILL OF RIGHTS

© Juta & Co. Ltd

Typesetting by: CBT Typesetting & Design

simultaneous pragmatism: the unpromising territory in which it was anchored, but

31. Access to courts (updated by Kevin Iles) ......................................................... 710

Basson v Chilwan 1993 (3) SA 742 (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 469

Boxer Superstores Mthatha v Mbenya (2007) 28 ILJ 2209 (SCA) . . . . . . . . . . . . . . . . 481

City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty)

Director of Public Prosecutions, Cape of Good Hope v Robinson 2005 (4) SA 1

Edwards v City of Coeur d’Alene (2001) 262 F 3d 856 . . . . . . . . . . . . . . . . . . . . . . . . 392

Flynn v Farr NO 2009 (1) SA 584 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220, 237

Khosana v NDPP 2012 (1) SACR 176 (FB) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 751

Laugh It Off Promotions CC v SAB International (Finance) BV t/a SabMark

May v Reserve Bank of Zimbabwe 1986 (3) SA 107 (ZSC) . . . . . . . . . . . . . . . . . . . . . 552

Minister of Welfare and Population Development v Fitzpatrick 2000 (3) SA 422

Munusamy v Hefer NO 2004 (5) SA 112 (O) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 346

Pillay v S 2004 (2) BCLR 158 (SCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 806

R v Morin (1992) 8 CLR (2d) 193 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 798

Rostker v Goldberg 453 US 57 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211

S v K 1997 (9) BCLR 1283 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218

S v Manuel 2001 (4) SA 11351 (W) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 771

S v Motloutsi 1996 (1) SACR 78 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 805, 810

S v Nzima 2001 (2) SACR 345 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 771, 783

S v Sonday 1995 (1) SA 497 (C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 802

S v Zuma 1995 (1) SACR 568 (CC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 749, 807

South African Breweries v Competition Commission [2011] ZACT 73 . . . . . . . . . . . . 713

Swanepoel v Transnet 2000 (2) SA 191 (T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 722

Winston v Lee 470 US 753 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 288

Introduction to the Constitution and

1.1 THE BILL OF RIGHTS IN CONTEXT

1.2 A BRIEF HISTORY

(a) A constitutional revolution

constitutional revolution in South Africa.1 The most significant elements of this

(b) The negotiations process and the interim Constitution

(c) The 1996 Constitution and the certification process

1.3 BASIC PRINCIPLES OF THE NEW CONSTITUTIONAL ORDER

principally through the operation of a Bill of Rights, substantive limitations are

The idea of constitutionalism provides an answer to this argument. Democracy is not

explains why there must be a rational relationship between a scheme Parliament

decision-making and must be applied to test the validity of administrative action

(c) Democracy and accountability

be admitted as an amicus curiae.77 However, in Fose v Minister of Safety the

references to the ideas of openness, responsiveness and accountability.81 These ideas

(d) Separation of powers and checks and balances

necessarily play a functional role in the process of sentencing offenders.95 It would,

The doctrine of separation of powers underlies the principle of judicial

as counterweights to the power possessed by the other branches (‘balances’).109 Simply

Structure of Bill of Rights Litigation

2.2 THE STAGES OF BILL OF RIGHTS LITIGATION

(a) Procedural issues

(i) Application and the principle of avoidance

(b) Substantive questions

2.4 SUMMARY OF THE STAGES IN TABLE FORM

(a) Procedural stage

Application of the Bill of Rights

(c) Indirect application of the Bill of Rights to disputes governed by

Interpretation of Bill of Rights

3.1 INTRODUCTION: THE MEANING OF ‘APPLICATION’ AND THE DISTINCTION

3.2 APPLICATION UNDER THE INTERIM CONSTITUTION COMPARED TO THE 1996

(a) The interim Constitution

(b) The 1996 Constitution

3.3 DIRECT APPLICATION OF THE BILL OF RIGHTS

(a) Beneficiaries of the Bill of Rights

(i) Natural persons