these are in depth case summaries made by Kaya Borkowski and Jamie-Lou Ross. They contain: Carmichele v Minister of Safety and Security,
Christian Education South Africa v Minister of Education,
National Coalition for Gay and Lesbian Equality v Minister of Home Affairs,Thubakgale and Others v Eku...
CONSTITUTIONAL LAW
PBL2003W
University of Cape Town
By Jamie-Lou Ross & K Borkowski
September Test Cases
PART 1: INTRODUCTION TO THE BILL OF RIGHTS, & INTERPRETING & APPLYING THE BILL OF RIGHTS
Litigating the Bill of Rights
Carmichele v Minister of Safety and Security
Christian Education South Africa v Minister of Education
National Coalition for Gay and Lesbian Equality v Minister of Home Affairs
Thubakgale and Others v Ekurhuleni Metropolitan Municipality and Others
PART 2: FREEDOM RIGHTS
Ubuntu and Human dignity
S v Makwanyane and Another
Dawood v Minister of Home Affairs
The Right to Equality and ‘Remedial’ or ‘Restitutionary’ Measures
Harksen v Lane NO
Hoffman v South African Airways
S v Jordan and Others
Mahlangu and Another v Minister of Labour and Others.
Minister of Finance v Van Heerden.
Freedom of Expression & Hate Speech
Islamic Unity Convention v Independent Broadcasting Authority and Others
Afriforum and Another v Malema and Others
Nelson Mandela Foundation Trust v Afriforum NPC and Another
Qwelane v South African Human Rights Commission and Another
Afriforum v Economic Freedom Fighters and Others.
DISTRIBUTION OF THIS DOCUMENT IS ILLEGAL
PIERRE DE VOS; WARREN FREEDMAN; ZSA-ZSA BOGGENPOEL. 2021.
SOUTH AFRICAN CONSTITUTIONAL LAW IN CONTEXT SECOND EDITION.
OXFORD: OXFORD UNIV PRESS UK.
, PART 1: INTRODUCTION TO THE BILL OF RIGHTS, & INTERPRETING & APPLYING THE BILL OF RIGHTS
Litigating the Bill of Rights
Carmichele v Minister of Safety and Security 2001 (CC)
Facts
● The applicant was sexually assaulted by a man who was awaiting trial for the attempted rape of another woman
● Concerns an indirect vertical application of a positive obligation in a dispute governed by common law
● Despite the seriousness of the alleged crime and the fact that the man had a prior rape conviction, the police and prosecutor had
recommended that the man be released pending trial
● The applicant sued the Minister for damages, arguing that the police and prosecutors had negligently failed to comply with a legal
duty they owed to her to take steps to prevent the man from causing her harm
● HC dismissed the applicant's claim & SCA affirmed, holding that the police and prosecution did not owe her a duty of protection
● Appeal to the Constitutional Court
Issue
● If police or prosecutors owed a duty of care to a victim of sexual violence, &, if so, whether that standard of care was breached?
Outcome
● State is obligated by Constitution to protect the dignity and security of women
● Police have positive obligations to protect the fundamental rights and freedoms contained in the BORs
● In the circumstances, the police recommendation for the assailant's release could amount to wrongful conduct giving rise to liability
● Ackermann and Goldstone JJ held that, although the major engine for law reform should be the legislature, courts are under a general
duty to develop the common law when it deviates from the spirit, purport and objects of the BORs.
● S 39(2) Constitution provides that when developing the common law, every court must promote the spirit, purport, and objects of the
BORs
● Prosecutors, who were under a general duty to place before a court any information relevant to the refusal or grant of bail, might
reasonably be held liable for negligently failing to fulfil that duty
● It was ordered that the matter be referred back to the HC for the trial to be continued.
● Obligation of courts to develop the common law, in the context of the s 39(2) objectives, is not purely discretionary.
● On the contrary, it is implicit in s 39(2) read with s 173 that where the common law as it stands is deficient in promoting the s 39(2)
objectives, courts are under a general obligation to develop it appropriately.
● BORs is used to develop the rules and remedies of the ordinary law so that the ‘objective normative value system’ that permeates the
Bill of Rights is given effect
Significance
● Decision set an important precedent with its recognition that sexual violence is not a private matter and that public officials have a
duty to protect women.
Christian Education SA v Minister of Education 2000 (C)
Facts
● Appellant applied for an order declaring s 10 South African Schools Act (SASA) - prohibited corporal punishment in public schools -
to be unconstitutional & invalid on grounds that it infringed inter alia their R to religious freedom guaranteed in s 15(1) Const
The benefits of buying summaries with Stuvia:
Guaranteed quality through customer reviews
Stuvia customers have reviewed more than 700,000 summaries. This how you know that you are buying the best documents.
Quick and easy check-out
You can quickly pay through EFT, credit card or Stuvia-credit for the summaries. There is no membership needed.
Focus on what matters
Your fellow students write the study notes themselves, which is why the documents are always reliable and up-to-date. This ensures you quickly get to the core!
Frequently asked questions
What do I get when I buy this document?
You get a PDF, available immediately after your purchase. The purchased document is accessible anytime, anywhere and indefinitely through your profile.
Satisfaction guarantee: how does it work?
Our satisfaction guarantee ensures that you always find a study document that suits you well. You fill out a form, and our customer service team takes care of the rest.
Who am I buying this summary from?
Stuvia is a marketplace, so you are not buying this document from us, but from seller LawGuru. Stuvia facilitates payment to the seller.
Will I be stuck with a subscription?
No, you only buy this summary for R80,00. You're not tied to anything after your purchase.
