Introducing the Bill of Rights: Limits and possibilities:
• The Bill of Rights contains an extensive list of civil and political and social and economic
rights, but what purpose do they serve and what are their functions?
• Prof Joel Modiri argues that “liberal rights” depoliticize fundamental questions of injustice
(such as poverty) by declaring that “all persons are free and equal”, and that race, gender,
class and property ownership are irrelevant to one’s standing as a citizen “.
- The problem with depoliticization of injustice is that, for example, if a court process is
available, then people are not going to do the kind of political work/political
mobilization that is often very effective in achieving real change.
- We can call this the ‘judicialization of politics’ which is when politics move from the
political arena to the legal arena.
• But he 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.
- Example of the latter, rights can make it look normal that the law works better for some
than for others, e.g., freedom of expression,
- One may argue that they have the right to make a racist or homophobic statement.
- This is when the right becomes ambivalent, because if you are part of a dominant social
group, or an economically powerful group, there is possibility for you to actively invoke
(purposefully put them into action) these rights.
- But how effective are these rights in the first place. Is it really possible for you to invoke
these rights if there is no access to courts etc.?
- Core idea: rights can be complicated.
- They can be used to protect privilege, but can also be used to dismantle privilege.
• Rights make all sorts of promises, but the promises are not reflected in the reality that we
see around us.
• Rights often fail to capture the broad structural injustices in society
• It may appear to be that a person’s demographic group is irrelevant to their standing as a
citizen because each citizen, regardless of their race, class, gender, property ownership, their
place of origin, or what their life chances are, enjoy the same rights.
The argument is:
• This is a kind of legitimization of the system
• Because people do not have equal opportunities and ability to enact these rights.
• E.g., we all supposedly possess the right to own private property, but we don’t all have the
power to enact such a right.
• Many rights look good on paper but are not equal in reality.
We ought to ask ourselves in the South African context: does our Bill of Rights assume that
all persons are already free and equal?
Does our BoR say that race, gender, property ownership etc. are irrelevant to your standing
as a citizen?
Can we think of rights differently, do the South African court think about rights in a way that
makes it possible for rights to also be used by vulnerable groups/ people who are not
economically and socially dominant in this society.
Conclusion:
Rights are contradictory in nature. They can exclude others from the enjoyment of rights
, - E.g., if I have exclusive property rights, I am excluding everyone else from enjoying that
property or using it for any social or other purpose
But rights can also provide access
- E.g., the right to education can ensure that more people have better access to
university. People could exercise this right to gain access in instances where a university
might have wished to use a policy such as that of a ‘language policy’ to exclude certain
groups.
• Rights can be an affirmation of one’s humanity (e.g., a court declares LGBT rights)
• But at the same time, rights can be used to exclude and marginalize. A person could claim an
individual right, regardless of the consequences for others, and in this way reduce another
person’s humanity.
Rights and public and private power:
• In South Africa, rights can do more than just protect individuals from the state. They can also
protect individuals from private parties.
• Traditionally, rights were conceived as a tool to protect individuals from human rights
abuses by the state, on the assumption that the State is uniquely powerful and could abuse
its power.
- This presumption isn’t entirely correct. There are many instances where private parties
also abuse their power and cause just as much damage, or even more than the state
does.
- Example of this:
i. If a big bank in SA who decided not to lend money to a buyer of a property
situated in Nyanga or Langa, discriminates on the basis of race, with a
potentially devastating impact.
ii. An owner of private land who evicts farm workers whose families had lived on
that land for generations limits on their right of access to housing.
General notes:
- It seems that rights aim to alleviate poverty and other injustices, but not to eradicate
these injustices.
- Rights must seek to address the cause of people’s injustices
- The law must not merely place people into categories and define their struggles. Must
eradicate injustices, not alleviate them.
- Placing people into categories and associating particular struggles to people who are in
these categories is problematic. It ignores the broader political struggles of ordinary
citizens.
I think that Modiri is right:
Rights depoliticize people. People think that as long as there is a possibility of going to a
court, then the other broader struggles are not going to be worthwhile.
Application of the Bill of Rights:
There are three stages to Bill of Rights adjudication:
• Stage 1: Who can claim a right, who is bound to respect that right, and who can approach a
court to do so.
, • Stage 2: What is the scope and content of a right is the right being infringed and is the
infringement (also called a limitation) justified and thus valid?
- After the court has established that the rights of the natural or juristic person have been
infringed, it has to determine whether the infringement is justifiable in terms of the
limitation clause set out in section 36.
- If the court finds that the limitation is justifiable, the infringement is ‘saved’ and the law
or conduct is constitutionally valid. However, if the court finds that the limitation is not
justifiable, then an infringement cannot be saved, and the law or conduct is
unconstitutional and invalid
• Stage 3: If the right is infringed and limitation is not justified, what remedy should the court
give?
• BUT: there might not be direct infringement. Then one can argue for development of
common law or customary law.
These three stages are regulated by the operational provisions in the Bill of Rights.
The operational provisions are:
- Section 7: the state’s duty to respect, protect, promote, and fulfill the rights in the Bill of
Rights.
- Section 8: who the right binds
- Section 36: the limitation of rights
- Section 37: the suspension of rights in a state of emergency
- Section 38: who has standing to enforce the rights
- Section 39: the interpretation of rights.
Apart from these operational provisions, sections 167 and 172 of the Constitution also
regulate the enforcement of the Bill of Rights. These provisions deal with the jurisdiction of
the courts, especially in constitutional matters, and the remedies that the courts may grant
when a provision in the Bill of Rights has been unjustifiably infringed.
In the Bill of Rights is the idea that our Constitution does not create a hierarchy of rights.
The rights in the Bill of Rights are interrelated, interdependent and mutually supporting.
Application of BoR: Stage 1:
- Who is entitled to claim the rights in the Bill of Rights?
- Look at the wording of the provision
- It may say “everyone”, “citizens”, “children”, “workers”, “detained people”.
• All natural persons (human beings) enjoy the rights that are for everyone. E.g., right to vote.
What about non-humans? Aka juristic persons
- Section 8(4) addresses this.
- “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.”
- In other words, look at what the right protects, look at the juristic person, then with this
decide whether this is the type of thing that the juristic person should enjoy.
- E.g., the right to privacy. Private is not only enjoyable by individuals. Companies can also
enjoy the right to privacy, especially if the company will benefit from it. (Preventing the
release of the company’s private info as an example.)
- On the contrary, freedom of religion might not be enjoyed by a large multinational
corporation, but a religious organization might be able to enjoy the right because the
nature of the juristic person will apply.
, Who can approach a court to enforce their own rights or rights of others? (This is called
“standing”)
- Section 38 answers this
• Human rights cases are expensive.
• As a response, section 38 expands the people who can approach the court so that if a person
does not have enough money to fund their case themselves, somebody else can represent
them and approach a court on their behalf.
• Section 38 says: “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 in the public interest, and an association acting in the
interest of its members.
• If litigating on your own behalf, then you must have a “sufficient interest”, not hypothetical.
But this must be generously interpreted.
• General standing rules may help somewhat to address the practical lack of access to court to
enforce rights.
Stage 1 continued…
Who is directly bound by the rights in the Bill of Rights?
• Khumalo v Holomisa distinguishes between vertical application and the horizontal
application of the Bill of Rights.
The direct vertical application of the Bill of Rights: section 8(1)
• Binds the legislature, executive and judiciary and all organs of state
• (Vertical because you are not in the same power level as the state, so you must claim the
rights upwards /vertically)
• This is the normal application of the Bill of Rights. Based on the presumption that the State is
uniquely dangerous and prone to abuse its powers
• Examples: president or cabinet minister takes a decision that infringes on somebody’s rights.
/ Legislation passed by Parliament infringes on somebody’s rights.
The direct horizontal application of the Bill of Rights: section 8(2)-(3)
- Horizontal = against private parties
- Happens when one individual or private institution acts in a way outside of law that
infringes on the rights of another person.
• Section 8(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”.
- The court in Juma Masjid stated that this involves examining the ‘intensity’ of the right
in question and its degree of susceptibility to interference by private parties.
• Section 8(3): “when applying a provision of the Bill of Rights to a natural or juristic person in
terms of subsection (2), a court (a) in order to give effect to a right in the Bill, must apply, or
if necessary, develop, the common law to the extent that legislation does not give effect to
that right, provided that the limitation is in accordance with section 36(1).
• After the court has established that the rights of the natural or juristic person have been
infringed, it has to determine whether the infringement is justifiable in terms of the
limitation clause set out in section 36.
