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FUR 2601 Memory Notes:Unit 1: Structure of the BOR
Comprises of 3 Stages:
1. Procedural Stage
2. Substantive Stage
3. Remedies Stage
Procedural Stage:
Application - Est if BOR applies to the dispute between parties.
- Est whether applicant protected by BOR
- If Respondent is bound to act in accordance with BOR.
- Does it apply directly or indirectly
Justiciability - Issue must be ripe for decision by court.
- Does applicant in matter have standing iro part relief.
- Applicant must be appropriate person to present matter to court.
Jurisdiction - Does court have jurisdiction to grant relief
- Only HC, SCA and CC jurisdiction to adjudicate cons matters.
Substantive Stage:
Interpretation - Has law or conduct of respondent infringed a FR of applicant?
- Focuses on actual infringement
- Determine law/conduct in question violates the right of applicant.
- If infringement have taken place go to next
Limitation - Is infringement justifiable limitation ito section 36
- If responded conduct does not satisfy test in sec 36
- Then it will be deemed unconstitutional
- Move to next step
Remedy: If Courts fins violation of right is not justifiable limitation, will have to
consider appropriate remedy to deal with unconstitutional infringement.
Onus Procedural stage - on applicant to prove requirements are satisfied.
Onus Substantive - First on applicant who must show infringement had taken
place and the shifts to respondent who must show
infringement justifiable ito sec 36.
Onus Remedy Stage - When deciding a appropriate remedy
- Depend on application direct or indirect
- Indirect, ordinary legal remedy granted
- Directly, provision found inconsistent will be declared
invalid ito power given to court by sec 172
,Unit 2: Application
Who is protected by BOR:
All natural persons except where rights are reserved for:
Citizens
Other categories (children, accused persons)
Juristic Persons, depending on
Nature of rights
Nature of juristic persons (s 8(4))
Who is bound by the rights in the BOR:
❖ Direct application
➢ Vertical Application S 8 (1)
▪ All law, legislature, executive, judiciary, organs of state (s 239)
➢ Horizontal Application S 8 (2) depending on:
▪ Nature of right
▪ Nature of duty imposed by right
❖ Indirect Application S 39 (2)
➢ Legislation
▪ Reading down
▪ Development
Direct vs Indirect Application of the BOR:
Sec 8(1) binds executive, legislature, judiciary and all OOS
Section provides Direct Vertical Application of BOR
If Act of parliament being challenged for unconstitutional and
Court found impunged provision violates rights of applicant
The BOR will override the said provision
And latter will be struck down.
Sec 8(2) makes provision for direct horizontal application of right in BOR
If and to extent that the right is applicable
Taking into account the nature and nature of the duty imposed by right
Right of beneficiary of BOR must be infringed
By person/entity on whom the BOR imposed a duty not to infringe right
When BOR directly applicable it overrides CL rules which are inconsistent
Remedy granted by court will be constitutional one
Indirect application refers to interpretation, development and application
Of legislation or CL by every court, tribunal or forum
In way which respects values of the BOR and
Promotes it purport, spirit and objects, there are limits to IA.
, Unit 3: Locus Standi
Common Law approach - Too restrictive and rigid
- According to approach person who approach court for
relief was required to have personal interest in matter
- And be personally and adversely affected by the wrong
- Meant applicants own rights had to be affected not
someone else
Constititional Approach - brought drastic changes in form of sec 38 a-e
- More flexible approach
Ferreira v Levin - Chaskalson P by applying sec 38
- Advocated a broad approach to standing
- Said broad approach NB to ensure all applicants
enjoyed the full measure of protection of the Constitution
Sec 38:
a) Acting in own interest
b) On behalf of another who cannot act in their own name
c) As member of, or interest of a group or class of persons
d) In the public interest
e) An association acting in the interest of its members
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Unit 4: Jurisdiction in BOR litigation
Structure of judicial system:
• Section 166 of Constitution set out structure:
CC highest court in ALL matters
SCA hears appeals in constitutional and non-constitutional matters
HC
Magistrate courts
Any other court est or recognised ito an Act of Parliament
Jurisdiction of Constitutional Court
Sec 167 – is the highest court in all matters
- May decide constitutional matters and any other matter raises the point
of law of general public importance.
- Makes the final decision whether matter is within its jurisdiction
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