Case
Cases in FUR2601 - The Bill of Rights Handbook, ISBN: 9781485101178
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- University Of South Africa (Unisa)
summaries, explanations and descriptions in bill of rights handbook. Contact 4 for study guides
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CASES: FUR2601Study Unit 1: Introduction to the Constitution
and the Bill of Rights
1. Ex parte Chairperson of the Constitutional Judgment → Decline to certify the text.
Assembly: in re Certification of the
Constitution of the Republic of South Africa The CC held → The provisions relating to provincial
1996. (First Certification judgment) 1996 powers, local government, entrenchment of the Bill of
Rights and Public Service Commission did not comply
with the Constitutional Principles.
Instead of an outright transmission of power there would
be a 2-stage transition. The interim government under the
interim would govern the country on a coalition basis
while the final was being drafted. An elected national
legislature would draft the new.
2. Certification of the Amended Text of the Judgment → Accepted the text to be consistent with the
Constitution fo the Republic of South Africa Constitutional Principles.
1996 (Second Certification judgment) 1997.
The CC held → Once the was certified - it is not
possible to object to the amendments of the 1996
Constitution on the basis of not complying with the
Principles.
→ A court should approach the meaning of the relevant
provision of the as assigned by the CC in the
certification process and should not be departed from save
in the most compelling circumstances.
3. South African Association of Personal Injury The CC held → There is no doubt the provides for
Lawyers v Heath 2001 such a separation of powers and that laws inconsistent
with the are invalid. Further, that the principle is an
implied or implicit provision and drawn from the structure
of other provisions.
4. Executive Council of the Western Cape The CC held → Any law or conduct not in accordance
Legislature v President of the Republic of with the , either for procedural or substantive reasons,
South Africa 1995. will therefore not have the force of law.
The CC held → The “manner & form” provisions of the
prevent Parliament form delegating to the executive
the power to amend provisions of the enabling Act of
Parliament. This implies when the executive is
empowered to amend or repeal Acts - the doctrine of
1
, separation of functions will be undermined.
Therefore the court held that the executive may not make
this type of law.
5. Soobramoney v Minister of Health (KZN) Judgment → CC refused to order the state to provide
1998. expensive dialysis treatment to keep patient alive.
The CC held → That difficult & agonizing judgments
have to be made as to how a limited budget is best
allocated to the max advantage of the max number of
patients, and this is not a judgment a court can make.
6. Pharmaceuritcal Manufacturers Association Legal question → On what basis is the Presidents conduct
of SA: In re Ex parte President of the of signing an Act into operation constitutionally
Republic of South Africa 2000. reviewable - where the power given to him was granted by
an Act of Parliament.
The CC held → The power was not administrative action
although derived form legislation. The conduct was an
exercise of public power which had to be carried out
consistently with the provisions of the .
Legal question → What constraints does the place on
the exercise of public power.
The CC held → It is a requirement of the rule of law that
the exercise of public power not be arbitrary. Decision
must be related to the purpose for which the power was
given.
The CC did not reach the rule of law principle until it
decided the conduct was not administrative (Note:
sequence of analysis).
7. Minister of Health v Treatment Action The courts approach to human rights issues →
Campaign 2002.
The CC will not hesitate to issue mandatory relief which
affects policy and has cost implications when reaching the
conclusion that the state has not performed its
constitutional obligations.
2
, Study Unit 2: Structure of the Bill of Rights
1. Ferreira v Levin NO 1996 The CC held → The applicant has to show that an
infringement of a right has taken place. This requires the
applicant to prove the facts on which they rely.
The respondent then has to show that an infringement is a
justifiable limitation of a right in terms of s 36.
Study Unit 3: Application of the Bill of Rights
1. Du Plessis v De Klerk 1996 Plaintiff sued a newspaper for defamation using the
common-law acito iniuriarum.
The CC: The Bill of Rights under the interim Constitution
had no direct application to horizontal disputes (disputes
between private litigants). → This is because of the
absence of the word “judiciary” → The application of the
Bill of Rights did not apply directly to the judiciary and
the individual. It did however have indirect application.
The CC decided a jurisdictional issue: The development
of the common law was a non-constitutional matter and
remained in the jurisdiction of the Appellate Division:
“two-track” system.
The Constitutional Assembly provided for direct
horizontal application in the 1996 Constitution and
included a shared jurisdictional scheme where the HC,
SCA & CC shared jurisdiction over constitutional
matters.
See Below:
2. Pharmaceutical Manufacturers Association The CC held→ There are not two systems of law, there is
of SA: In re Ex parte President of the only one system of law deriving its force from the
Republic of South Africa 2000 Constitution and subject to its control.
3. Khumalo v Holomisai 2002 Applicants: members of the media (expressly identified
as bearers of the constitutional right to freedom of
expression).
Legal question: Does the common law of defamation
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