Bill of Rights

Topic 1

 Constitution-vehicle to transform South Africa

 Bill of Rights- Aimed at facilitating the social and economic transformation of South Africa
while protecting the human dignity of all.
 Core sections- -7, 8, 36,38, 39(2)
 Grandfather who has cancer
 Right to dignity, right to life, right to privacy,
 You never have the right to take someone’s life,
 Options are breaking the law by killing his loved one and the other is challenging the law
with regards to euthanasia- taking the matter to court
 Societal issues that have made their way to court- death penalty, corporal punishment
 When testing the constitutionality of a matter, we focus on,
 1) Application stage- getting the matter to court first
 2) Limitation stage
 3) Remedies stage
 In the application stage, the two important questions are asked by the court here:
 1) Can A go to court to claim his or her right was infringed? (am I entitled to claim the
right?) -
 -standing to bring the case- governed by s38 of constitution (Limpopo Legal Solutions)**
 -In addition, the court needs to decide whether the Bill of Rights applies directly or indirectly
to the dispute before it (see pg. 323).
 2) Is the person who allegedly infringed A’s rights (B) bound by the duties imposed by the
right?
 -Are we bound by the bill of rights?( no
 -Where applicable, the Bill of Rights can bind not only the state but also private individuals
and organisations.
 It’s the states problem when there’s an infringement- because they put the rules together
 Everyone is entitled to claim rights from the bill of rights as long as you’re a natural person
 Juristic persons – companies, organization ( rights may include freedom of expression, etc)
 This usually means natural persons but can also include juristic persons (not all rights can be
claimed by juristic persons).
 Categories of persons :
 19(10)(a) = ‘every citizen is free to make political choices...’
 23(2)(a) = ‘every worker has the right to form and join a trade union.’
 28(1)(a) = ‘every child has the right to a name and a nationality from birth.’
 Juristic persons
 Section 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’.
 Grandfather case analysis
 Standing in section 38
 Before being granted standing, you have to show that a right has been infringed and that
you have sufficient interest in the matter not necessarily direct interest.
 . A complainant simply has to:
 Allege that one of the fundamental rights set out in the Bill of Rights has been infringed or
threatened.
 Show that one of the categories of persons listed in section 38 of the Constitution has a
‘sufficient interest’ in obtaining a remedy.
 Sufficient interest:
 The qualifying requirement is ‘sufficient interest’ – Kruger para 90.
 For each category of person (a-e) sufficient interest needs to be shown.
 Eg. In terms of 38(a) = anyone acting in their own interest, an own-interest litigant must still
show that he or she has a ‘sufficient interest’ in the relief he or she is applying for.
 It has to be something actually happening.
 When acting in the interest of the public, additional requirements need to be satisfied.
 In Ferreira and Vryenhoek, O’Regan J held that a person will be granted standing to act in
the public interest only if he or she is genuinely acting in the public interest. The following
factors need to be taken into account to determine this:
 1) whether there is another reasonable and effective manner in which the challenge can be
brought.
 2) the nature of the relief sought and the extent to which it is of general and prospective
application- link to euthanasia ( courts need to look at the fact that people are cpming back
for the same thing)
 3) 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.
 Limpopo case –
 Their object is to promote human rights
 Court said the limpop legal solutions had no standing and they weren’t acting in public
interest
 High court then strucks the application of the roll with costs saying that they have no
standing.
 Direct-laws are not in compliance with the constitution
 Indirect application of BOR-
 Indirect- rely on legislation like acts which give effect to the constitution
 Direct?
 Laws must be in conformity with the Constitution. The Bill of Right applies directly to laws
that are not.
 Laws are not consistent with the constitution
 Prince section 15
 Vertical application of bor- involves the state
 Horizontal application of bor- between you and another person- private matter
 When the Bill of Rights applies vertically...
 It confers rights on private persons (no obligations imposed).
 It imposes obligations on the state (to respect, promote, and fulfil).
 Only the state is bound by Bill of Rights when applied Vertically.
 An important consequence of this approach is that the Bill of Rights ONLY APPLIES to a
dispute if the state is party to that
 Application: The BOR applies to all law and binds the legislature,
Khumalo case- section 8 (1) vertical application of law
 Horizontal application- section 8(2) –provision of the bill of rights binds a natural or juristic
persons
 Prince Case
 Law is enacted by government
 Juma Misjid Case- horizontal dispute
 Private owner sought to evict public school on its property
 The conflicting right here is the right to education v right to property
 None of us need to pay someone else’s education
 Section 7 and 8 are important
 Respecting rights-Only in the sense that it imposes a NEGATIVE
 OBLIGATION on private parties.
 Summary and reflection of Juma Musjid judgment
 The right to basic education does apply directly to a horizontal dispute governed by the
common law – but...
 Only in the sense that it imposes a NEGATIVE
 OBLIGATION on private parties.
 Private parties are not to use their common law powers (eviction) to interfere with or
diminish the enjoyment of that right.
 Q) Does this mean that private parties have an obligation to take steps to provide basic
education to learners? (2)
LIMITATION STAGE

 No right is unlimited
 Section 36
 Life Healthcare Group (Pty) Ltd and Another v JMS (as parent and guardian of the
infant child MT) and Another
 Child needs blood transmission
 Parents rights can be limited by way of childrens act
 Only a law van limit rights
 How do courts get to the conclusion of limitation of rights?- section 36
 Two stage approach- what courts will have to do
 Q1) asks whether the provision(death penalty, etc) in question infringes the rights
protected by the substantive clauses of the Bill of Rights.
 Yes/No-most likely yes
 Q2) Is the infringement justifiable?(section 36 analysis )
 Ex Parte Minister of Safety and Security and Others: In Re S v Walters and Another
 Two-stage process set out in greater detail.
 Constitutionality of s 49(2) of the Criminal Procedure Act = the use of force to carry
out an arrest.
 Section 49- right to life is infringed
 Two staged approach in Walters:
 Part 1: threshold enquiry-The content and scope of the relevant protected right.
 Meaning and effect of the impugned enactment. (Is the right infringed by the
measure?)
 Part 2: Limitations exercise (justification stage)
 How to go about interpreting the rights in question and section 49?
 Interpretation of Bill of Rights
 Scope and content
 Scope- how far the right goes
 Scope is dependent on where you are to decide whether right has been infringed
 Bernstein case elaborates on this
 The two-stage approach may call for a broader interpretation of the fundamental
right (in the first stage), qualified only at the second stage.
 An example of this approach:
 De Reuck v Director of Public Prosectutions (Witwatersrand Local Division) and
Others
 Has to do with child porNOGRAPHY
 Limiting measure- LAW THAT LIMITS YOUR RIGHT
 Danger of not adhering, Dangers of failing to observe this approach?
 New National Party v Government of the Republic of South Africa and Others.
 Right in question?
 The right to vote
 The court dismissed there being a limitation and this resulted in...
 No effort to develop a principled understanding of the right in its constitutional
and political context!
 The court failed to undertake a rigorous, meaningful analysis of the scope and
content of the impugned right.
  (still under scope and content of the relevant protected right)
 Internal Modifiers:
 Internal modifiers may either restrict the scope of the right or provide conditions
for its operation.
 Can you think of any right that has internal modifiers that restrict it’s scope?
 Examples like freedom expression and equality rights- there are restrictions and
elaborates on certain grounds
 Which of the ff questions does not contain an internal modifier?test question
 Jordan Case:
 Limiting measure- sexual offences act
 Right- right to privacy
 Stage 2 independent requirements
 1) The limitation must be ‘in terms of law of general application’.-sourced from
law
 2) The limitation must be ‘reasonable and justifiable in an open and democratic
society based on equality, freedom and human dignity’.
 General:
 The limiting measure must be ‘sourced’ in a law of general application.
 This means that the limitation of a right by some other means other than a law of
general application will always be unconstitutional.
 This requirements protects the ‘rule of law’-laws must be just and fair
 From Hugo we can gather that a law of general application should...
 1) be of general application
 2) be precise (clarity)
 3) be accessible
 The burden of justification:
 In every constitutional challenge we will have one party relying on the legislation
‘the defender’(in defence of the limitation) and the other ‘the challenger’
challenging the provision to show why it is not justified.
 Which party bears what responsibility in terms of proof?
 Makwanyane: It is for the legislature (or the party relying on the legislation) to
establish this justification, and not for the party challenging it to show that it was
not justified.
 This sentiment was reiterated in Moise.

MCQ

1. Who is entitled to bill of rights? E

2. Members of workforce < C
3.
Equality

• South African context – history of past discrimination on the basis of race.

• Discrimination on many other grounds still present – sex, gender, sexual orientation, religion, HIV
status and others

 The right to Equality

 Section 9
 1. Everyone is equal before the law and has the right to equal protection and benefit from
the law.
 2. Equality includes(scope) full and equal enjoyments of rights. Protection of disadvantaged
Legislative measures, etc. ( affirmative actions)- an internal qualifier
 3. The state may not discriminate - vertical
 4. No person may discriminate directly or indirectly. National legislation must enact this right
(horizontal)PEPUDA
 5. Prove that its discrimination and unfair
 Consequences flow from this conception of the right to equality:
 1. Not right to be treated identically at all times - more than a formal prohibition against
discrimination.
 2. more than equality before the law; focus on the effects or impact of the legal rules or
other differentiating treatment on individuals (substantive equality)
 Formal equality- people who have similarly situated in relative ways should be treated the
same. people who are similarly situated in relevant ways should simply be treated similarly –
equal treatment, equal bearers of rights, neutral protection of rights
 liberal idea
 criticism = ‘neutral’ approach to equality masks forms of bias
 Substantive equality- looks at impact of differentiating legal rules/conduct
 looks at impact of differentiating legal rules/conduct
 Attention to context
 Remedial in nature
 Examples: formal vs substantive equality:

• Fourie - Arguments put forward when Marriage Act challenged for unconstitutionally
discriminating against them (by not allowing same sex couples to marry)

• S v Pitje (1960) – ‘European practitioners’ table at Court

 CC embraced substantive equality in Minister of Finance and Other v Van Heerden:

 besides uneven race, class and gender attributes of our society, there are other levels
and forms of social differentiation and systematic under-privilege which still persist. •
The Constitution enjoins us to dismantle them and to prevent the creation of new
patterns disadvantage.
 • incumbent on courts to scrutinise in each equality claim the situation of the
complainants in society (history, vulnerability, purpose of discriminatory practice etc) –
to determine fairness
 • ‘situation-sensitive’ approach
 Differentiation – have to be 18 for a drivers license, this is not discrimaory
 Discrimination-
 • Not all forms of differentiation are constitutionally problematic
 • modern state is required to regulate the affairs of it inhabitants extensively -
impossible to do so without differentiation/classifications that treat/affect people
differently
 • BUT some forms of differentiation do infringe on the right to equality.
 • The Constitution draws a sharp distinction between the mere differentiation dealt
with in terms of section 9 (1) of the Constitution and discrimination dealt with in terms
of section 9 (3) of the Constitution.
 VALUES UNDERLYING THE RIGHT TO EQUALITY: HUMAN DIGNITY AND EQUALITY
 • President v Hugo: human dignity at the heart of the equality enquiry.
 • equality guarantee protects individuals from differentiation based on one of the
specified grounds in section 9(3) or similar forms of differentiation that have the
potential to infringe a person’s dignity.
 • Human dignity will be impaired whenever? ➢differentiation treats people as ‘second-
class citizens’, ‘demean them’, treat them as less capable for no good reason, otherwise
offends fundamental human dignity or where it violates an individual’s self-esteem and
personal integrity.
 • Human dignity = all human beings have an equal moral worth- the right to be treated
with equal concern and respect.
 Legal nature of the differentiation (what are you challenging?)
 Conduct --- use pepuda or subsidiarity and use specific legislation
 or Legislative measure—use section 9, you need to rely on constitution
 Mere differentiation- S9 (1)
 introduces affirmative action measures S((2)
 Distinguishes directly or indirectly between groups based grounds listed in section 9(3)
or analogous ground S9(3)