Constitutional Law Lecture Notes: Semester 2
Nomfundo Ramalekana & Richard Calland
Week 1
Bill of Rights Adjudication
Monday Lecture: 25 July
A Critique of Rights
• The Bill of Rights has an extensive list of civil & political and social & economic rights.
• What purpose do rights serve?
- They are entitlements to claim positive action from the state.
- They protect people against arbitrary infringements of these rights by the state.
• Liberal constitutional democracy places rights at the centre of eradicating inequality and
poverty – the problem is that they cannot deliver their promise (Law’s Poverty, Modiri).
• What are the limits of rights (the liberal rights paradigm), according to Modiri?
- They individualise claims to the extent that they obscure the underlying
structural/systemic conditions that perpetuate poverty and inequality. They
depoliticise the historical/political conditions of the suffering they claim to combat.
- They dismiss more radical political projects, by converging neatly with and aiding
Western liberal democracy and the global expansion of neoliberal capitalism.
- They are an abstraction – your abstract self can be a holder of a right, but in your
concrete reality, you can lack access to the thing you are entitled to by the right. You
remain subordinated by that which liberal rights purported to have overcome.
- They depoliticise us, by silencing political deliberation on more radical claims and
people’s process of struggle (rights restrict the type of claims that are possible).
• Rights allow those with power to protect and enrich their power (e.g. the property
clause, the right to equality). They prevent arbitrary abuse of power (e.g., by the state).
• The rights in the Constitution seem to assume that we are all equal before the law and
focus on poverty alleviation, not poverty eradication.
Important Concepts
• Normative value system:
- 3 core values – equality (Fraser v Children’s Court), human dignity (Dawood v
Minister of Home Affairs) and freedom (Ferreira v Levin).
- They are entrenched in section 7(1), section 36(1) and section 39(1) of the
Constitution.
, - They are Western values (at the expense of the exclusion of specifically African
values, like ubuntu).
- They are vague and abstract (their overbreadth allows us to give them meaning and
ground them in our context).
- The CC has focused on human dignity, at the expense of the other 2 values.
• The core of the work is the separation of powers – should we accept that the courts
have the power to tell us who is entitled to rights? Should we give an unelected few the
power to decide something that the people have great disagreement about – the right
of all rights is the people’s right to political participation? (Waldron)
Wednesday Lecture: 27 July
The Divide Between Civil & Political Rights and Socio-Economic Rights
• Why is there a historic division in liberal thought?
- Differences in justiciability (should socio-economic rights be justiciable? They aren’t
in Namibia, Botswana, India, Canada and Ireland – in India, litigants circumvented
this by using the right to life to argue for the right to food).
- Differences in ideological basis (positive or negative conception of liberty?)
- Give rise to different obligations (positive or negative obligations?)
- Differences in resource implications (socioeconomic rights tend to give rise to
budgetary constraints)
• SA’s approach:
- The Constitution entrenches both civil & political rights and social & economic rights.
All rights in the Bill of Rights are interrelated and mutually supporting (Government
of the RSA v Grootboom).
- All rights impose positive and negative obligations on the state (and others),
according to section 7(2) of the Constitution, and are thus justiciable under the
Constitution – the question is how to enforce them in a given case (Grootboom).
- All rights have budgetary implications. The right to vote imposes an obligation on the
state not merely to refrain from interfering with the exercise of the right, but to take
positive steps to ensure that it can be exercised (Richter v Minister of Home Affairs).
The Bill of Rights and Subsidiary
• Principle of subsidiarity = A hierarchical ordering of institutions/norms/principles/
remedies, in which a central institution/higher norm should only be invoked where the
local institution/concrete norm does not avail.
,• Why does the principle of subsidiary exist:
- Respects the separation of powers (the Constitution’s delegation to Parliament to
give effect to rights should be respected, the courts shouldn’t just have the freedom
to interpret higher constitutional norms as they see fit)
- Enables coherence in the development of rights, by preventing the development of 2
parallel systems of law.
- Enables a slower, programmatic/incremental development of Constitutional law,
because of the far-reaching implications of constitutional decisions (the principle of
subsidiarity is critiqued for allowing the courts to avoid developing the Bill of Rights).
• 2 invocations of subsidiarity in the Bill of Rights context:
- Where the Constitution contains both a specific right of access (e.g., right to housing)
and a more general right (e.g., right to human dignity), the litigant must first invoke
the specific right.
- A litigant cannot directly invoke the Constitution to extract a right they seek to
enforce, without first relying on or attacking the constitutionality of legislation
enacted to give effect to that right (i.e., the principle of subsidiarity applies when
challenging the scope of the legislation, but not its constitutionality).
• The principle of subsidiary is not a hard and fast rule – the court has previously decided
that it does not apply (see section 167(4)(e) and section 172 of the Constitution).
Bill of Rights Adjudication
Stage 1: Application/Procedural Stage
Who is a Rights Holder
• All natural persons can claim rights.
• “Everyone has a right to …” and “no one can be deprived of” have been purposively
interpreted to mean that these rights entitle everyone, regardless of status:
, - In the absence of any indication that the section 27(1) right is restricted to citizens,
as in other provisions in the Bill of Rights, the word “everyone” cannot be construed
as referring only to citizens (Khosa v Minister of Social Development).
- The R350 relief grant should be available to all persons, including asylum seekers and
holders of special permits (Scalabrini v Minister of Social Development).
- Rights that are integral to the values of human dignity, equality and freedom, which
are fundamental to our constitutional order, cannot be denied to human beings
physically inside the country (Human Rights and Others v Minister of Home Affairs).
- “Everyone” does not include the foetus (Christian Lawyers Association of SA v
Minister of Health). This is the underlying principle of our abortion laws.
• However, only citizens have section 19 political rights (importance discussed in August v
Electoral Commission).
• According to section 8(4) of the Constitution, juristic persons are entitled to the rights in
the Bill of Rights, to the extent required by the nature of the rights and the nature of the
juristic person.
• Juristic persons are holders of some rights (e.g., privacy, access to information, equality,
freedom of expression, freedom of association, property, just administrative action), but
not others, particularly those adhering to human beings (e.g., life, vote, healthcare).
• What is the danger of allowing juristic persons to rely on the Bill of Rights?
- Those with power can protect their power (e.g., the property clause).
- Can a church prevent an openly gay person from working as a piano teacher, relying
on the right to freedom of religion vs. the right to equality?
- Can a sole propriety-hold corporation, owned by a fundamentalist Christian family,
provide its employees with health insurance that excludes contraception for gay
people, relying on the free exercise of religion clause vs. the right to access medical
insurance? According to the US Supreme Court, yes (Burwell v Hobby Lobby).
- Can a religious organisation rely on the right to freedom of religion? Yes (Strydom v
Nederduitse Gereformeerde Gemeente Moreleta Park).
• “It seems inconsistent that the state can be both the beneficiary of the rights and the
bearer of the corresponding obligation that is intended to give effect to the rights. This
must, indeed, be an indication that only private persons enjoy rights under section 33”
(State Information Technology Agency v Gijima Holdings).
Thursday Lecture: 28 July
Who Can Approach the Courts (Standing)?
• Section 38 of the Constitution contains the standing provisions:
- Section 38(1)(a) = Acting in their own interest.
- Section 38(1)(b) = Anyone acting on behalf of another person who cannot act in their
own name (e.g., limited legal capacity, mentally incapable).
