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Summary FUR2601 Summarised Study Notes
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- University Of South Africa (Unisa)
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FUR2601NOTES
,FUNDAMENTAL RIGHTS
1. Introduction
What are Human Rights?
• Are sometimes referred to as fundamental rights, basic rights, natural rights or sometimes
even common rights.
• These names or phrases do not mean the same thing, and they are used interchangeably
and sometimes rather confusingly.
• Fundamental or basic rights are those rights which are often set out in the fundamental law
of the state, i.e Bill of Rights in a Constitution.
• Natural or common rights, on the other hand are seen as belonging to all men and women by
virtue of their human nature.
• It is difficult to define human rights, however the UN has described human rights as those
rights which are inherent in our nature and without which we cannot live as human beings.
• In the absence of human rights, therefore, human beings cannot fully develop and use their
human qualities, their intelligence, their talents in order to satisfy both their spiritual and physical
needs.
2. SOUTH AFRICAN CONSTITUTION AND HUMAN RIGHTS
1996 SA CONSTITUTION
Constitutional features in relation to the protection of human rights:
The Preamble
The objectives of the preamble are inter alia:
a) to heal the divisions of the past and to establish a society based on democratic values,
social justice and fundamental rights.
b) to lay the foundation for a democratic and open society in which govt is based on the will
of the people and every citizen is equal before the law.
c) Establishment of a society based on democratic values.
Democratic values (section 1) are:
-Human Dignity, the achievement of equality and the advancement of human rights and freedoms.
-Non-racialism and non-sexism.
-Supremacy of the Constitution and the rule of law
1
,Entrenchment of the Bill of Rights in Chapter two
Note: Supremacy of a Constitution—means, in the context of human rights, any oppressive laws,
discriminatory act or segregative conduct would be invalid because they would not pass the
constitutional test.
It also means that, as we have a Bill of Rights, all authority must be exercised in a manner that is
consistent with these rights.
LITIGATION OF RIGHTS
THREE STAGES OF FUNDAMENTAL RIGHTS LITIGATION
Procedural stage
This stage involves procedural issues such as application of the Bill of Rights, justiciability of the
issues including the standing of the applicant and the jurisdiction of the court to grant relief claimed.
Onus of Proof
The applicant has to prove the application of the bill of rights, jusyticiability of the issues and
jurisdiction.
Substantive stage
This stage involves interpreting the provisions of the Bill of Rights and establishing whether a
right has been infringed.
The court must then consider whether the infringement is a justifiable limitation of the right.
If the court finds that the infringement of the right is not a justifiable limitation of the right, it will move
on to the remedies stage.
Onus of proof
The applicant has to show that an infringement of a right has taken place
Once a violation is found the onus shifts to the respondent to show that an infringement is a justifiable
limitation of the right in terms of s 36.
Remedies stage
The court in this stage considers the appropriate remedy to deal with the unconstitutional infringement
of the right.
Onus of Proof
It depends on whether the bill of rights is applied directly or indirectly.
When it is applied indirectly, an ordinary legal remedy is granted and the ordinary legal rules apply
in respect of the burden of proof.
When it is applied directly, the provision that is found to be inconsistent with the constitution will be
declared invalid in terms of the power given to the court by section 172 of the Constitution.
2
, Since section 172 allows a court to limit or suspend the effects of a declaration of invalidity, the
respondent will in most cases be called upon to justify such a request.
In addition to the declaration of invalidity, a court may also grant reliefs such as an interdict or
constitutional damages—in most cases the applicant will request such relief and will therefore bear
the burden of persuasion.
Procedural stage
This stage involves procedural issues such as application of the Bill of Rights, justiciability of the
issues including the standing of the applicant and the jurisdiction of the court to grant relief
claimed.
Application of the Bill of Rights
Application of the Bill of Rights is governed by section 8 of the SA Constitution.
Section 8 provides that:
(1) The Bill of Rights applies to all law, and binds the legislature, the executive,
the judiciary and all organs of state.
(2) A provision of the Bill of Rights binds a natural or a juristic person if, and to
the extent that, it is applicable, taking into account the nature of the right and the nature of any duty
imposed by the right.
(4) A juristic person is entitled to the rights in the Bill of Rights to the extent
required by the nature of the rights and the nature of that juristic person.
The application enquiry comprises the following questions?
1) Does the Bill of Rights apply in the dispute between the parties?
The above question involves the ff questions:
a) Is the applicant entitled to the rights in the Bill of Rights
b) Is the respondent bound by the Bill of Rights?
c) Did the cause of action arise during the period of application of either the interim or the 1996
Constitution
A2. How does it apply to a dispute? Does it apply directly or indirectly?
Direct application
Direct vertical application
Section 8(1) binds the executive, legislature, the judiciary and all organs of state.
3
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