Lecture notes Constitutional Law: Structures of Government South African Constitutional Law in Context
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Constitutional Law: Structures of Government
Institution
University Of The Witwatersrand (wits)
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South African Constitutional Law in Context
These notes are a summary of part of semster 1 and 2 exam study notes which covers more of the Bill of right with topics such as the structure of Bill of right, the right to equality section 9(1)(2) &(3). This is part A
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TOPIC 1: BASIC STRUCTURE OF BILL OF RIGHTS LITIGATION
The nature and purpose of the Bill of Rights and its place in the Constitution:
Nature of BOR
- Adopted in 1996 – it plays a crucial role in the protection and promotion of
fundamental rights and freedoms of all individuals within the country's borders. It
represents a commitment to human rights, equality, and social justice.
- According to section 7(1) the BOR is seen as the cornerstone of democracy in S.A. It
enshrines the rights of all people in our country and affirms the democratic values of
human dignity, equality, and freedom.
- Furthermore, the state must respect, promote, protect, and fulfil the rights found in the
BOR while acknowledging the limitation of those rights contained in section 36.
- Forms part of the substantive judicial review in courts which contains values and
rights against which the state actions and all other law can be tested.
- Under separation of power courts can substantially review all forms of state power
against a substantive set of rights these include both civil socioeconomic and political
rights.
- Human dignity, equality, and freedom
Purpose of BOR
- Protection of Human Rights: The BOR serves as a legal framework to safeguard the
inherent dignity and worth of every person. It enshrines a wide range of civil,
political, economic, social, and cultural rights, ensuring that the rights of individuals
are protected from infringement by the state or private entities.
- Equality and Non-Discrimination: The BOR promotes the principle of equality and
prohibits discrimination on various grounds, including race, gender, religion,
ethnicity, and sexual orientation (section 1 – founding values). It aims to create a
society where all individuals are treated with equal dignity and respect under the law.
- Social Justice: The BOR places a strong emphasis on social justice and seeks to
address historical injustices, particularly those stemming from apartheid, by
addressing issues like land reform, housing, healthcare, education, and access to basic
services.
, - Enforcement Mechanism: The BOR provides a mechanism for individuals to seek
redress when their rights are violated. This includes the right to approach the courts
for appropriate remedies if their rights have been infringed. Note this is done through
the two-stage method as highlighted in the slides.
Place in the South African Constitution:
- The BOR is a fundamental part of the South African Constitution. Found in Chapter 2
of the Constitution, which sets out the overarching principles and values of the nation.
- May be seen as the "Founding Provisions" of the Constitution section 1.
- The BOR consists of various sections, each dealing with specific rights and
protections. These rights are justiciable, meaning they can be enforced through the
courts, allowing citizens to challenge any violation of their rights by the government
or private entities.
- The South African Constitution, including the Bill of Rights, represents the supreme
law of the land. Any law or conduct inconsistent with the Constitution is invalid, and
the courts have the authority to declare such laws or actions unconstitutional.
- Is the substantive part of the Constitution for the purpose of judicial review.
Furthermore, exercised towards the societal goals of the constitution and towards
achieving the values found in section 1 and the values of the preamble of the
Constitution.
The idea of ‘transformative constitutionalism’
- It refers to a particular approach to interpreting and implementing the country's constitution in a
manner that fosters social and economic transformation while promoting justice, equality, and
human rights.
- Transformative constitutionalism is closely linked to the transformative nature of the South
African Constitution itself, which was adopted in 1996, following the end of apartheid.
- Ways in which or how the Constitution contributes to the transformation:
1. Does not contain provisions nor itself land itself to interpretations that would
rethread transformation.
2. It encourages legislation and executives by pushing it towards transforming
society.
, 3. Through the BOR of rights the Constitution is a vehicle for this transformation
such that it was to transform society by transforming the law to make it
respects and be more socially justice.
- Transformative constitutionalism – “heal the divisions of our past and establish a society based
on democratic values, social justice and fundamental human rights”.
Horizontal and vertical
Means that it does not only apply against the state and government law but
also against private entities and private individuals.
Substantive equality
Far more than the notion of formal equality. It deals with dull conception of all
full enjoyment of all rights and freedom rather than just equal treatment. S9.
Socio-economic rights
Culture of justification
Through its limitation clause and some of its internal provisions it wants to
inculcate a culture of justification in that it demands reasons from the state for
all exercised of power that limits rights – covid 19/liquor bill in.
STANDING IN BILL OF RIGHTS MATTERS
- Section 38
- There are two stages of which the courts apply when it comes to matters relating to BOR which
includes the interpretation stage (the here ask itself what the right means and ask whether the
law that is being challenge limits or infringes this right) as well as the limitation stage (where
the court finds that law does infringes or limits the right it then asks the state to justifications the
limitation or infringement. [ culture of justification]
- It should be noted that before these two stages the court first has to establish a justification or
jurisdiction application standing. Thus, here it seeks to answer the questions. S167 (different
matters that CC will/can hear) and SS168-170 (what the other can hear)
Whether the matter has jurisdiction.
Whether the applicant has standing
Whether the BOR applies in the matter.
- And depending on the answer of these matter it might not even hear the matter. If the
court hears it will then conduct the two-stage approach and if at the end of the
approach the court finds that the law was indeed unconstitutional it will then give
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