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RDL 3003H - Impact of BOR Notes
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IMPACT OF BILL OF RIGHTS ONWRONGFULNESS IN DELICT
Prescribed Readings:
Constitution of South Africa, 1996, ss 8(2) and (3) and 39(2)
François du Bois, ‘Sources of Law: Common Law and Precedent’ in idem (ed),
Wille’s Principles of South African Law 9th ed (2007), 92-99
Carmichele v Minister of Safety and Security and Another (Centre of Applied Legal
Studies Intervening) 2001 (4) SA 938 (CC)
Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA)
Table of Contents
Du Bois............................................................................................................................................... 1
Carmichele v Minister of Safety and Security.......................................................................3
Minister of safety and security v Van Duivenboden 2002.................................................5
Du Bois
IV. Constitutional Development of the Common Law
The constitution recognizes the inherent power of the SCA and HC to develop the
common law, taking into account the interests of justice
Common law must be kept in line with changing social conditions and needs
This power must be excercised within the repscripts and ethos of the Constitution
Common law principles which long predate the constitution – e.g. defamation – are
nowing serving to implement constitutional rights are are adjusted and developed
accordingly
“The normative influence of the constitution must be felt through the common law”
The BOR recognizes the existence of other rights and freedoms within the common
law
BOR is not a rudimental codification of the common lwa and the sole basis for
developing the common law
The constitution casts the court’s inherent power to develop the common law – other
considerations such as public opinion and commercial concerns will continue to
prpmot and shape development
This happens now within the constitutional matrix – to the extent that they are
consistent with the BOR
S 2 and 8(1) applies to common law
S 39(2) provides expxressly for the application and development of the common law
in linewith the BOR
, The influence of the BOR is not contained to the ambit and scope of the specific
rights contained therein but extends to the promotion of the sprirt, purport and objects
thereof
Courts are under a general obligation to develop it appropriately
Four situations can be distinguished:
o (1)The common law principle conflicts with the BOR
o (2) The principle fails adequately to reflect the Constitution’s underlying
values
In both of the above situations, the common law rule must be replaced,
supplemented and entirched by the appropriate norms of the objective
value system embodied in the constitution
Courts enquiry enebr ends with the concusion tht there is no actual
repugnancy
In every case – s39(2) must be applied
It must not only avoid any conflicts with constitution rights but ust also
be in line with the constitutional value system
Note: only the first instance is capacble of raising the question of
whether the common law rule is a justifiable limitation authorized by s
36
o (2) The application of the principle that is consistent with both the terms and
values of the constitution calls for constitutional scruinty
May involve a substantive value-judgement
The scope of s 39(2) includes incremental development of the common
law as afully as it overs a new development in the form of the compelte
change of a rule
Whenever constitutionally unobjectionable common law principle are
imbued with social policy and normative content – their application
needs to be developed in line with the constitution
Important for doctrine of precedent
o In all three of these instaces: court engages with a two stage inquiry:
First stage is to consider whether the existing common law, having
regard to the section 39(2) objecitves, requires development in
accordance with these objectives
Requires a consideration of the common law in light of s 29(2)
If this inquiry leads to a positive answer, then the second stage
concerns with how such development is to take place in order to meet
the section 39(2) objectives
o (4) The principle may be in need of development for some reason unconnected
to the constitution
E.g. need to keep up with changing commercial practice
S 39(2) does not specify what triggers the need to develop the common
law
When a common law rule is declared invalid by reason of inconsistency with the
constitution, then the rule is invalid from the moment the relevant constitutional
provision came into effect
There may be more than one way in which the common law should be developed in
order to bring it in line with the BOR (when s 39(2) does not conclude the courts task)
This section does not exclusively determine the outcome of all cases
(1) the impact of the BOR on the common law is conceptually different from doctrine
of pricedent
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