CONSTITUTIONAL LAW
SEMESTER 2, 2020.
BILL OF RIGHTS LITIGATION
1. Introduction to the Bill of Rights litigation
Role of the Constitution
= Place restrictions/check on exercise of all public power
o Procedurally through Separation of Powers
o Substantively: BoR and other values (rule of law)
Purpose of the Bill of Rights? And remedy’s applicable?
- Purpose of the constitution: sets out and regulates how our gov
functions. I.e separation of powers
- Chapters of the constitution chap3, 4,5,6,7,8,9,10,11,12,13,14
- NB! Chapter 2- BoR recognizes fundamental rights and freedoms
and protects them from infringement from state or private parties
and individuals.
Justiciability, why is it important? Sec 38:
- Standing
- Mootness
- Ripeness
:
Rights in the Bill of Rights, who benefits? beneficiaries
Classification of rights:
- Civil and political rights vs Socio-economic rights. These rights are
protected by the international covenant on social and political rights
and the international covenants on economic, social and political
rights.
- Civil and political rights. Rights to prevent the state from unlawful
interference in your daily life. The right to freedom of expression,
right of assembly, right to vote and the right to elections, right to
equality, right to a fair trial, etc.
- Socio and economic rights. Prevents the state from interfering
with enjoyment of certain privileges unreasonably (e.g. education,
housing, medical care). Certain instances – may be a positive
obligation to provide for these socio and economic rights (e.g.
housing; schooling; healthcare)
Also generation rights:
- Blue rights: 1st- oldest rights arose in 18th century, can be found in
American BoR and French declaration of the rights of man and
citizen consist of traditional rights.
- Red rights: 2nd -19th cent and beg of 20th cent, 1931 const in Spain
and the 1936 of Soviet union. Largely socio- economic rights
- Green rights: 3rd Generation rights- most recent, e.g the right to
healthy environment. Our constitution does not create a hierarchy of
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, rights. Our rights are interdependent and interrelated and mutually
supported.
Role of international law, do we need to use it and effect it has?
- Sec 39 (the interpretation of the BoR 39(1)(b): “must consider
international law” s 39(1)(c): “may consider foreign law”
- S v Makwanyane: death penalty challenged in terms of interim
constitution. Used international law to see how they approached the
problem. Includes binding and non-binding international law
- Examples: treaties, African Charter on Human and People’s Rights
Structure of BoR litigation (overview)
A. Procedural Stage
Application
Justiciability
Jurisdiction
B. Substantive Stage
Interpretation (s 39)
Limitation (s 36)
C. Remedy Stage
Onus of Proof
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, A. PROCEDURAL STAGE
1. APPLICATION OF THE BOR
8. Application
(1) The Bill of Rights applies to all law, and binds the legislature, the executive, the
judiciary and all organs of state. – direct vertical application
(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. -direct horizontal application
(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; and
(b) may develop rules of the common law to limit the right, provided that the limitation
is in accordance with section 36(1).
(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.
S39: Interpretation of Bill of Rights
(1) When interpreting the Bill of Rights, a court, tribunal or forum—
(a) must promote the values that underlie an open and democratic society based on
human dignity, equality and freedom;
(b) must consider international law; and
(c) may consider foreign law.
(2) When interpreting any legislation, and when developing the common law or
customary law, every court, tribunal or forum must promote the spirit, purport and
objects of the Bill of Rights.
• 1. Who benefits from the BoR (Beneficiaries)
• 2. Who is bound by the BoR? (also HOW) (duty bearers) constitution doesn’t
only bound the state, can also bound private individuals and organisations
• 2a) Direct application ito s 8(1) & (2)
= Purpose is to determine whether ordinary rules of law are consistent with BoR. If
not, BoR overrides ordinary rules. Own special remedies in terms of s 8(3).
Beneficiaries of the Bill of Rights
(i) Natural persons
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, (ii) Juristic persons
(iii) Agreements not to claim the benefits of the Bill of Rights: the problem of
waiver
Example: Suppose parliament has adopted and the president has just
assented to the Upgrading of Land Tenure Amendment Act (the ‘Act’). The
purpose of the Act is to strengthen insecure title over land. The Act
therefore automatically converted any title that a person had over land in
terms of a deed of grant, into ownership. Ms X argues that the Act is
unconstitutional on the basis that in terms of the Proclamation of 1964,
only men were permitted to have title over land. Therefore, the automatic
conversion of title over land into ownership violates her constitutional right
to equality.
Therefore, you do not override the legislation, you interpret it in line with
the BOR, develop the understanding of the rule differently.
• 2b) Indirect application
= Purpose is to determine whether ordinary rules of law promotes the values of the
BoR. If not, BoR does not override the ordinary law, but BoR is used to develop the
ordinary law to avoid inconsistency with the BoR. Indirect application means that
instead of the Bill of Rights directly imposing duties and conferring rights, rights and
duties are instead imposed by the common law or legislation. In turn, the
development and interpretation of the common law and legislation is influenced by
the Bill of Rights.
Example: A gay couple were refused accommodation in a guesthouse.
The staff of the guesthouse made it clear that gay persons were not
welcome. The gay couple (the claimants) argue that: The conduct of the
guesthouse is in contravention of the Promotion of Equality and Prevention
of Unfair Discrimination Act 4 of 2000 (PEPUDA). They are entitled to
claim damages from the owner of the guesthouse in terms of the common
law of delict, as read through the lens of the constitutional rights to
equality, non-discrimination, and human dignity.
2. Justiciability
Locus Standi
Mootness
Ripeness
3. Jurisdiction
Which court?
Sec 167(3)
Sec 172
Direct vs indirect application
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