Structure of the Bill of Rights Litigation. This documents provides a summary for Topic 1 of the Bill of Rights. It has case examples and constitutional sections.
- The Bill of Rights instructs the state to use power in ways not violating fundamental rights.
- The deals mainly with state power and law but there are provisions placing duties on private
individuals in certain circumstances.
- Most NB principle = ubi ius ubi remedium (where there is a right, there is a remedy).
the existence of a legal rule = the existence of authority to grant remedy if rule infringed.
- The enforcement of rights in the Bill of Rights are upheld through litigation and other means.
- Litigation takes place in distinct stages. At each stage the court must consider whether the onus of proof
is on the applicant or respondent.
1. Procedural
Phase
If unjustified
infringement is
established - court
to determines
remedy. a. Application & the principle of
avoidance
3. Remedies 2. Substantive
Phase Phase b.Justiciability & standing
c.Jurisdiction
a. Interpretation
b. Limitation
2.2 THE STAGES OF BILL OF RIGHTS LITIGATION:
1) Procedural Phase:
- Before a court can consider issues of substance it must first consider procedural issues.
a). Application and the principle of avoidance:
- Whether the Bill of Rights applies in a legal dispute.
To determine → Who benefits from the BoR?
the reach & → Who is bound by the BoR?
scope of the → Does the BoR apply to matters arising before its commencement?
, Bill of Rights → Does the BoR apply in the national territory, does it have extraterritorial effect?
- How the Bill of Rights applies in a legal dispute.
→ What is the relationship between the BoR and the principles or rules of law?
→ Does the BoR apply directly or indirectly? General rule indirect before direct.
- Currie & de Waal argue the two application issues should be resolved in the following way:
Indirect application of the Bill of Rights Direct application of the Bill of Rights
The BoR contains values that must be respected The “reach” demarcates the types of legal disputes
when the common law or legislation is interpreted, to which the BoR directly applies.
developed or applied.
The BoR doesn’t overrides ordinary law instead Within this area the BoR overrides ordinary law
ordinary law is interpreted in a way that conforms inconsistent with it.
to the Constitution.
This application creates harmony between the BoR This application shows inconsistency between the
and ordinary law is called indirect application of BoR and law or conduct is called direct
the BoR. application of the BoR.
Justiciability, jurisdiction and an appropriate Special constitutional rules apply.
remedy are resolved in terms of ordinary legal
rules.
- Indirect application must be considered before direct application.
- Principle that constitutional issues should be avoided → court to resolve dispute by applying ordinary
legal principles before applying the BoR directly. “Principle of avoidance”
- Important implication of the principle of avoidance is that special rules in the BoR relating to standing o
litigants and courts jurisdiction only apply when it is not possible to give effect to the BoR’s values by
applying ordinary law.
b) Justiciability & Standing:
- This means the applicant must have standing to seek a remedy or,
- The issue may have become moot or academic or,
- Because it is not ripe for decision by the court and not justiciable.
- BoR has special rules when directly applied
→ relating to standing → it demands a broader approach.
- BoR when applied indirectly
→ the normal legal rules apply.
c) Jurisdiction:
- One must be in the correct forum to challenge an alleged violation of a right.
- The constitutional jurisdiction of the courts & the procedures that are applied for direct application of
the Bill of Rights
- In cases of indirect application → the ordinary procedures are applied.
- This is for the protection of fundamental rights in practice.
- It is important to know where to challenge a violation of a right as not all courts have the same
jurisdiction in constitutional matters.
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