Constitutional Law 271 Bill of Rights Litigation: Procedural Stage (A)
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Course
Constituional Law 271
Institution
Stellenbosch University (SUN)
Constitutional Law Second Semester 2022 Class + Textbook notes for Bill of Rights Litigation: Procedural Stage. These include small case summaries on the most important prescribes cases as well.
CONSTITUTIONAL LAW 171 – BILL OF RIGHTS
LITIGATION
A: PROCEDURAL STAGE
INTRODUCTION
Role of the Constitution
• Contains BOR
• Place restrictions & checks on exercise of all public power; while awarding
powers to organs of state, governmental bodies…
• Restrictions how?
• Procedurally through Separation of Powers
• Substantively through the BOR and other values - Rule of Law
Purpose of the Bill of Rights
• Framework of rights protected in SA society
• BoR seen through a historical lens - history of Apartheid & exclusion of basic
human rights based on arbitrary grounds
• Overarching purpose - address legacy of colonialism & Apartheid - obligation
on the State and citizens
• Rights = JUSTICIABLE = may be tested in a court of law, base action of
litigation on a right(s) in the BOR
• Court may adjudicate violations of rights
• Extensive, array of rights
• Classification of human rights:
• SER & Civil & Political rights
• First, second & third generation rights = development of when rights were
recognized as enforceable
o 1st - rights realized first, Civil & Political rights
o 2nd - rights realized second, SER
o 3rd - rights realized third, rights to environment etc…
• Role of international law & foreign law
• Relied on to examine how different jurisdictions have dealt with &
interpreted different rights
• Impacts procedure of BOR litigation (Canadian experience)
Structure of Bill of Rights Litigation
A: Procedural stage
B: Substantive Stage
C: Remedy Stage
PROCEDURAL STAGE
• Application (Ss 7, 8)
• Justiciability (S 38)
• Jurisdiction (S 167)
SUBSTANTIVE STAGE
• Interpretation (S 39)
• Limitation (S 36)
, REMEDY STAGE - S 172
Onus of proof
Shift of the burden once proven that right has been violated - shifts
to State to prove that violation is justifiable ito S36
A: PROCEDURAL STAGE
PROCEDURAL STAGE:
• Application (Ss 7, 8)
• Justiciability (S 38)
• Jurisdiction (S 167)
APPLICATION
• BENEFICIARIES
S 8(4) of the Constitution, 1996
Lawyers for Human Rights and Another v Minister of Home Affairs and
Another 2004 (4) SA 125 (CC) paras 25-27
Tswane City v Link Africa 2015 6 SA 440 (CC) paras 52-55
First ask - is the applicant a beneficiary of the right?
Then - who is bound by the BOR & how?
Beneficiaries of the BOR
• Legal rights = correlative relationship
• A has a legal right, B has a legal duty to A to uphold that right
• A = BENEFICIARY & B = DUTY-BEARER
• Direct application ito S8(1) & (2):
• Purpose is to determine whether ordinary rules of law are consistent with
BOR. If not, BOR overrides ordinary rules.
o Ordinary law? Legislation, common law, customary law
• Attacking ordinary law on the basis of a specific right in the BOR - directly
relying on this
o Succeed w/ claim? State bound to not violate rights in BOR & no
limitation of the right = remedy granted!
• Example in slides
• Indirect application
• Purpose is to determine whether ordinary rules of law promote the values
of the BOR. If not, BOR does not override ordinary law, but BOR is
used to develop the ordinary law to avoid inconsistency with the BOR.
• Claim a violation of rights without relying directly on the CT
o Instead rely on legislation created to give effect to specific rights in
BOR such as PEPUDA! Or common law
o Usually use when violation is caused by a private body
o Argue that there must be a remedy - done so by developing common
law through lens of specific constitutional rights in BOR
o Values of BOR allows for development to obtain a remedy
, • Example in slides
• BOR applies vertically
• STATE must respect, promote, promote, fulfil - S 7(2)
• Direct vertical application - S8(1)
8. (1) The Bill of Rights applies to all law, and binds the legislature, the executive, the
judiciary and all organs of state.
• BOR applies horizontally
• Between INDIVIDUALS
• Direct horizontal application - S8(2)
o (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.
• S8(3):
• (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).
• S39(2): Indirect (vertical & horizontal) application
1. (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.
BENEFICIARIES
• Direct application:
• Only when a right of a beneficiary has been infringed
• Person/entity (against whom claim is made) has a duty not to infringe the
rights - are they bound by the BOR?
• Violation must take place in the national territory…
o S7(1): BOR enshrines the rights of all people in the country
o Kaunda v Pres of RSA: BOR has no extraterritorial application
• Kaunda & others (SA citizens) overseas in African country and
attempted to overthrow foreign govt & arrested in foreign
country
• Punishment - death sentence
• Asks SA govt. to protect right to life in BOR
• LEGAL ISSUE: Can SA citizens in foreign country rely on the
BOR?
• Court - no! only applicable w/ in borders of SA, including air- and
seaports
• Conclusion: BOR may not be invoked when rights violated in a
different country
• Natural persons
• Most rights in BOR = benefit of "everyone" = right may be denied to "no
one" - same but negatively phrased
• S11: everyone has the right to life
, • S13: no one may be subjected to slavery, servitude or forced labour
• = synonymous
o Rights phrased this way = afforded to all natural persons within territory of
the Republic
• Not limited in any way
o Other rights - narrower categories of beneficiaries
• S28 Children's rights
• S35 rights of arrested, detained and accused persons
• S20 citizen's rights etc = accorded to "every citizen"
o S20 "no citizen may be deprived of citizenship" = only applicable
to SA citizens
o S22 "every citizen has right to choose specific occupation …
freely"
o BUT S21 Freedom of movement & 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.
= distinction between everyone & citizens = do not have
the same rights re freedom of movement & resident
'everyone' / 'no one' & the rights of non-citizens
o Non-citizens' ability to claim rights that is available to 'everyone'
o Lawyers for Human Rights v Min of Home Affairs
• illegal foreigners? S12 & S35(2) - freedom of security of the person
& rights of the detained
• Right to be detained in humane conditions
• Illegal foreigners allowed to invoke these rights after being detained
at air- or seaport?
o Ito legislation - may be detained for 30 days if do not have
permit
• Entitled to S12 & S35(2) rights? In our borders?
• Con Court: If BOR only wanted it to apply to citizens - would have
expressly stated so = not restricted to citizens but applies to
everyone within the borders
o Also considered foundational values of human dignity
• Implications if these rights did not apply!!
• Allowing state to violate rights = diluting rights of dignity
o Khosa v Min of Social Development
• Dealt w/ people legally entitled to be in the country - granted
permanent residency status, not citizenship
• Applied for social assistance ito Social Assistance Act: Social grants
restricted to citizens
• S27: social security, social assistance = applies to everyone
• Everyone entitled to social security in the BOR but LEGISLATION
limited access to social grants to citizens
o Eg. of direct application of BOR - attack ordinary law on basis
that inconsistent w/ BOR
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