Application of Bill of Rights Flashcards
What does section 8(1) state?
The BOR applies to all, binds the branches of government and all organs of state
What does section 8(2) stipulate?
A provision of the BOR binds both natural and juristic persons to the extent:
- That it is applicable
- Taking into account the nature of the right and any duty it may impose.
Provide an overview of seven of the main provisions relating to the BOR
Section 7 - the state’s duty to respect, protect, promote and fulfill the rights stipulated in the BOR
Section 8 - identifies who is bound within the BOR
Section 36 - Limitations of rights
Section 37 - The suspension of rights during a state emergency
Section 38 - Specifies who has standing to enforce rights - competent court
Section 39 - Interpretation of rights
Section 172(1)(a) - courts are required to declare any law inconsistent with the Constitution invalid to the extent of its inconsistency
List four constitutional remedies
1.) Meaningful engagements - Olivia Road Township v City of Johannesburg
2.) Declaration of Rights/Declaratory Order
3.) Structural Interdict - August and Another v Electoral Commission and Others
4.) Constitutional Damages
Who is the “everyone” that can claim rights in the BOR?
Citizens and non-citizens (permanent residents, individuals with temporary permits, foreigners awaiting lawful admission in SA)
**Some rights are restricted to specific categories such as ‘citizens’, ‘children’ or ‘detained individuals’
National Defence Union v Minister of Defence - term ‘worker’ was interpreted to include members of armed forces
What determines the juristic person’s claim for rights?
The purpose or aim of the juristic person - if juristic person was created to help natural persons achieve specific rights, it may claim those.
True or False:
Parliament is entitled to claim rights?
False - their purpose is to exercise powers which promote and protect the rights of people, BINDING them to rights instead of being ENTITLED to them
True or False:
The Constitutional Court believes that challenging an unlawful act automatically grants standing
False - the complainant must also have sufficient interest in the lawfulness of the act or decision in question
What is direct application?
It determines consistency of regular laws with the BOR, generating constitutional remedies
- When the right of beneficiary to BOR is infringed
- BOR takes precedence over ordinary law
- section 8(1) governs direct vertical application of BOR
- section 8(2) governs direct horizontal application
What is indirect application?
It aims to ensure regular laws promote the BOR’s values.
- Allows for the development of regular laws based on the BOR
- BOR does not take precedence over regular law
Who is involved in a horizontal application and what does it seek to do?
Amongst individuals and between judiciary and individuals
- Rights conferred to individuals and obligations imposed on state and private entities.
- Both parties are bound by the BOR
Who is involved in vertical application?
The state and the individuals
- Rights conferred on private individuals and obligations are imposed onto state
- Only the state is bound by the BOR
