Chapter 1 - Structure of the Bill of Rights

Question 1

3 Stages of the Bill of Rights

Answer 1

1. Procedural stage
2. Substantive stage
3. Remedies stage

Question 2

Procedural stage

Answer 2

Before a court can proceed to consider the issues of substance raised in human rights litigation it must first consider preliminary, procedural issues such as:

1. The application of the Bill of Rights to the subject matter of the litigation.
2. The justiciability of the issue to be decided and the standing of the applicant
3. The jurisdiction of the court to grant the relief claimed by the applicant

Question 3

Application of the Bill of Rights

Answer 3

Here it needs to be established whether the Bill of Rights applies to the dispute between the parties. It must be established whether the applicant is protected by the Bill of Rights and whether the respondent is bound to act in accordance with the Bill of Rights.

Question 4

Justiciability

Answer 4

The issues must be ripe for decision by the court and must not be moot or academic. Does the applicant in the matter have standing in respect of the particular relief sought? The applicant must be the appropriate person to present the matter to the court

Question 5

Jurisdiction

Answer 5

Does the court have jurisdiction to grant relief? Only the High Court, The SCA and the Constitutional Court have jurisdiction to adjudicate Constitutional matters.

Question 6

Substantive stage

Answer 6

1. Interpretation
2. Limitation

Question 7

Interpretation

Answer 7

Has the law or conduct of the respondent infringed a fundamental right of the applicant? This stage focuses on the actual infringement of the right.

Question 8

Limitation

Answer 8

Is the infringement a justifiable limitation of the right in question according to the criteria set out in section 36? If yes then the respondent’s conduct cannot be regarded as unconstitutional and the application must be dismissed. If the respondent’s conduct does not satisfy the test in section 36, then it will be deemed unconstitutional.

Question 9

Remedies

Answer 9

Finally, if the court finds that a violation of a right is not a justifiable limitation, it will have to consider an appropriate remedy to deal with the unconstitutional infringement of a fundamental right

Question 10

Onus

Answer 10

1. Procedural stage
2. Substantive stage
3. Remedies stage

Question 11

Onus - Procedural stage

Answer 11

In the procedural stage, the onus is on the applicant to prove that all the requirements have been satisfied

Question 12

Onus - Substantive stage

Answer 12

In the substantive stage, the onus is first on the applicant, who must show that an infringement of a right has taken place. The onus then shifts to the respondent who must show that the infringement is a justifiable limitation of the right in terms of section 36.

Question 13

Onus - Remedy stage

Answer 13

With regard to the question of onus when deciding on the appropriate remedy, it depends on whether the Bill of Rights is applied directly or indirectly.