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Role of the Constitution:
- Contains the BOR
- Places restrictions and checks on exercise of all public power; while awarding
powers to OOS, governmental bodies
- Restrictions:
o Procedurally through SOP
o Substantively through BOR and other values (ROL)
Purpose of BOR:
- Provides framework of protected rights in SA society
- Prevent government from transgressing on human rights
- Awards protection to citizens regarding their rights
- Further than the state, applies amongst individuals
- Not only a shield against unlawful state interference but also from other
individuals
- BOR = historical lens
o History of apartheid & exclusion of basic human rights based on
arbitrary grounds
o Addresses colonialism & apartheid
Justiciability of BOR:
- Substantive rights (Life)
- Right to enforce your rights
- Right to access to court to enforce your rights / tested in court of law
o Courts may adjudicate violations of rights
- Base action of litigation on a right(s) in BOR
- Without this, the BOR would be considered paper law
Classification of Human Rights:
- SER, Civil & Political Rights
- 1st, 2nd & 3rd Generation Rights
o = development of when rights were recognized as enforceable
- 1 = Rights realized first
st
o Civil & Political Rights
- 2 = Rights realized second
nd
o Socio-economic Rights
- 3 = Rights realized third
rd
o Rights to environment
,
, Role of International & Foreign Law:
- Relied on to examine how different jurisdictions have dealt with and
interpreted different rights
- Impacts procedure of BOR litigation
Structure of BOR Litigation:
- Procedural Stage: purely procedural stage, merits are irrelevant
o Application (S7, S8) – does the BOR apply?
Does the person receive that right?
Does the person who infringed have a duty not to infringe?
o Justiciability (S38)
Standing (locus standi)
Is it the right time for the case (mootness / ripeness)
o Jurisdiction (S167)
- Substantive Stage:
o Interpretation (S39)
Interpret what the right means
Decide if there is a violation
o Limitation (S36)
Decide if limitation is justified, the conduct or the law is invalid
Remedy follows
- Remedy Stage: (S172)
- Onus of Proof:
o Shift of burden once proven that right has been violated
o = state to prove that violation is justifiable in terms of S36
Procedural Stage: Application
- 1) Who benefits from the BOR = beneficiaries
o Is the applicant a beneficiary of the right?
- 2) Who is bound by the BOR = OOS & other bodies [duty bearers]
- BOR applies to:
o Natural / Juristic persons
o Branches of Government (Executive, Legislature & Judiciary)
, Direct application: S8(1) & S8(2) – direct reliance on sections
- Purpose is to determine whether ordinary rules of law are consistent with
BOR
o If not, BOR overrides ordinary rules
- Own special remedies follow
- Attacking ordinary law on basis of specific right in BOR
o = direct reliance on specific right
S8(1): Direct vertical application
- BOR applies to all law, and binds legislature, executive, judiciary and OOS
S8(2): Direct horizontal application
- A provision in the BOR binds a natural person / juristic person if and to the
extent that it is applicable, taking into account the nature of the right and the
nature of the duty imposed by the right
S8(3):
- When applying a provision of the BOR to a natural / juristic person ito (2) a
court
o In order to give effect to a right in the BOR must apply or if necessary,
develop the CL to the extent that legislation does not give effect to that
right
o May develop rules of CL to limit the right provided that the limitation is
in accordance with S36(1)
Indirect application:
- Purpose is to determine whether ordinary rules of law promote the values of
the BOR
o If not promote values, BOR does not override ordinary law, BOR used
to develop ordinary law to avoid inconsistency with BOR
- Claim violation of rights without relying directly on CT:
o Instead rely on legislation created to give effect to specific rights in
BOR (PEPUDA) or CL
o Usually if violation caused by private body
o Argue that there must be a remedy = done by developing CL through
lens of specific CT rights in BOR
- Values of BOR allow for:
o Development to obtain a remedy
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