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Constitutional LawSemester 2 Notes
Weeks 1 and 2: 22/7-2/08 – Litigating the Bill of Rights [Prof Pierre de Vos]
Bill of Rights Adjudication
Modiri’s critique of rights
Rights discourse and it’s impact on how we conceptualize poverty! A consideration of rights as political by Wendy
Brown is used as a jumping pad. If we consider poverty as oppression, then to eradicate it, human rights must be
promoted. Freedom from oppression (poverty) requires substantive equality, justice and democracy. Can the rights in
the constitution deliver on this? If we frame our response to social injustice as a claim for a vindication of a right,
what can and can’t be done? Can you fix an economic, political and social issue with a claim using the Bill of Rights?
Are there limits? Is this a viable solution leading to long-term success. Access to courts is an immediate limitation –
this approach places the responsibility on individuals to seek out their own enforcement of enshrined rights. If I make
this issue a rights claim (to equality), what am I losing – it benefits the individual against another or the state and not
effecting change for all affected. If the court rules in your favour, you as an individual win that right, but it does not
deal with the crux of the issue! An individual rights claim is not a way to deal with the underlying politics and systems
that perpetuate the issue itself. Rights framed as individual claims with individual remedies does not get to the heart of
systemic injustice. A court cannot order the end of poverty. There are limits to what the courts can do. Using rights
can be very effective on the one hand (regardless of politics – I have a right that is guaranteed), but we must consider
that if we make every claim about enforcing rights, there is a risk that we depoliticize profoundly political issues!!!
(Racialised inequality – if you make it a claim about social and economic rights, you depoliticize the founding politics
which can only really be changed through political action.) Rights can be good, but they can also reduce the
effectiveness of political protest.
• Modiri: Liberal constitutional democracy places rights at the centre of eradicating inequality and poverty, the
problem is that they cannot deliver their promise because:
a. Rights indvidiualise claims in a manner that obscures the systemic and structural
nature of ‘injury’ or ‘lack’: ‘it depoliticises the historical and political conditions of
the suffering it claims to combat’
b. ‘Rights discourse operates as a dismissal of more radical political projects and also
happens to converge neatly with and aids in the civilising mission of Western liberal
democracy and the global expansion of neoliberal capitalism.’
c. Rights empower some and disempower others based on their social location
d. Rights as an abstraction – ‘our equal right to own land is restored but not the land
itself and we are all legally given the rights to education, healthcare, food, water and
social security while the majority still lacks and is unable to freely acquire decent and
dignified access to these things. To be clear, the ruse internal to liberalism occurs in
the situation in which our abstract selves have the rights, but our concrete selves
, continue to lack the access and thereby remain subordinated by that which liberal
rights purported to have overcome in the first place.’
e. Rights silence and prevent political deliberation by juridicalising the people’s
claims and process of struggle
f. Rights have conservative ambitions – they seek to ameliorate conditions of poverty
for example, not eradicate it all together – they enable the continued tolerance of
poverty
g. Rights convert political claims of injury into ‘identity’ and risks naturalising rather
than eradicating these
• But also acknowledges that rights can act as “a means of protection against arbitrary use and abuse” of power
AND as a “mode of securing and naturalizing dominant social powers”
South Africa’s Core value system:
• Three core values – equality, human dignity and freedom
a. Section 7(1) - BOR affirms the ‘democratic values of human dignity, equality and freedom’
b. Section 36(1) – rights limitations must be reasonable and justifiable in an open and democratic
society based on the values of equality, dignity and freedom
c. Section 39(1) – when interpreting rights, courts must promote the values of human dignity, equality
and freedom
Importance of these values
• ‘There can be no doubt that the guarantee of equality lies at the very heart of the Constitution. It permeates
and defines the very ethos upon which the Constitution is premised.’ Fraser v Childrens Court para [20]
• ‘Although freedom is indispensable for the protection of dignity, it has an intrinsic constitutional value of
its own. It is likewise the foundation of many of the other rights that are specifically entrenched.’ Ferreira
v Levin para [49]
• ‘The value of dignity in our Constitutional framework cannot therefore be doubted. The Constitution
asserts dignity to contradict our past in which human dignity for black South Africans was routinely and
cruelly denied….Human dignity therefore informs constitutional adjudication and interpretation at a range
of levels.’ Dawood para [35]
Critique of the values
• Classic liberal values at the expense of the exclusion of specifically African values – Ubuntu?
• Meaning of the values is contested
• There is also a specific critique of Constitutional Court’s focus on the value of dignity at the expense of
developing the other two values
Rights and the separation of powers: who decides?
, • Waldron – there is great disagreement on what rights we have– we should not leave the decision to decide
the content of rights to an unelected few – contra to democratic participation, the ‘right of rights’ – Law
and Disagreement
Application of the Bill of Rights
Three stages of BoR adjudication
1. Who can claim a right, who is bound to respect that right, and who can approach a court to do so?
2. What is the scope and content of a right, is the right being infringed and is the infringement (limitation)
justified and thus valid?
3. If the right is infringed and limitation is not justified, what remedy should the court give?
BUT there might not be a direct infringement. Then
argue for development of common law or
customary law (can develop the
common/customary law to be aligned with the spirit
and values of the BoR).
Stage 1: Application
Who can claim?
- Natural and juristic persons
Most of the rights can be claimed by anybody who is on South African soil.
ANYBODY (undocumented immigrant/asylum seeker/tourist/if you are within jurisdiction.
However, some rights only apply to citizens (right to vote, right to freely choose your profession).
A right for workers is one to organise into trade unions.
Rights of people who have been detained (right to be assumed to be innocent in a court of law.)
Another important thing is if rights can be claimed by juristic persons.
Section 8(4): a juristic person is entitled to the rights in the BoR to the extent required by the nature of the
rights and the nature of that juristic person.
This means Vodacom wants to invoke the right, you look at the right and say is this right a right that
applies only to humans or citizens or can an institution make a claim eg the right to vote cannot be applied
to Vodacom and they can’t claim it.
Who can approach the court to enforce their own righs or rights of others?
Section 38
Anyone acting in their own interest,
anyone acting on behalf of another person who cannot act in their own name.
Anyone acting as a member of, or in the interest of a group or class of persons,
, Anyone acting in the public interest
And an association acting in the interest of its members.
If litigating on your own behalf you must have a sufficient interest, not hypothetical. But must be
generously interpreted. (eg you cannot say parliament passed national health insurance we are scared when
they set down regulations they will discriminate against us).
Generous standing rules may help somewhat to address that practical lack of access to court to enforce
rights.
1. Natural persons
• ‘Everyone’/ ‘no one’ - these rights entitle everyone – regardless of status (non—citizens, refugees,
permanent residents)?
a. ‘This Court has adopted a purposive approach to the interpretation of rights. Given that the
Constitution expressly provides that the Bill of Rights enshrines the rights of “all people in our
country”, and in the absence of any indication that the section 27(1) right is to be restricted to
citizens as in other provisions in the Bill of Rights, the word “everyone” in this section cannot be
construed as referring only to “citizens”.’ Khosa v Minister of Social Development para [47]
b. Scalabrini v Minster of Social Development – relying on Khosa, R350 relief grant to all persons,
including asylum seekers and holders of special permits
c. ‘These rights are integral to the values of human dignity, equality and freedom that are fundamental
to our constitutional order. The denial of these rights to human beings who are physically inside
the country at sea- or airports merely because they have not entered South Africa formally would
constitute a negation of the values underlying our Constitution. It could hardly be suggested that
persons who are being unlawfully detained on a ship in South African waters cannot turn to South
African courts for protection.’ Lawyers for Human Rights and Other v Minister of Home Affairs
and other [2004] ZACC 12 para [26]
d. ‘Everyone’ does not include the foetus – see Christian Lawyers Association of SA and Others v
Minister of Health and Others 1998 (11) BCLR 1434 (T)
• See also:
a. Section 27(b) of the Refugees Act – all rights in chapter 2 protected;
b. Section 25(1) of the Immigration Act – restricting rights for permanent residents
• Citizens’, see s 19 political rights:
“The achievement of the franchise has historically been important both for the acquisition of the rights of full and
effective citizenship by all South Africans regardless of race, and for the accomplishment of an all-embracing
nationhood. The universality of the franchise is important not only for nationhood and democracy. The vote of each
and every citizen is a badge of dignity and of personhood. Quite literally, it says that everybody counts. In a country
of great disparities of wealth and power it declares that whoever we are, whether rich or poor, exalted or disgraced,
we all belong to the same democratic South African nation; that our destinies are intertwined in a single interactive
polity...Legislation dealing with the franchise must be interpreted in favour of enfranchisement rather than
disenfranchisement.’ August para [17]
• Other examples: Children (s 28), workers, employers, trade unions (s 23(2)-(5)), and arrested, detained and
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