Chapter 2 - Application

Question 1

Indirect application

Answer 1

The Constitution and the Bill of Rights establish an objective normative value system, a set of values that must be respected whenever the common law or legislation is interpreted, developed or applied. This form of application is termed the indirect application of the Bill of Rights. hen indirectly applied, the Bill of Rights does not override ordinary law or generate many remedies. Rathe the Bill of Rights respects the rules and remedies of ordinary law but demands furtherance of its values mediated through the operation of ordinary law.

Question 2

Direct application

Answer 2

In disputes in which the Bill of Rights applies as directly applicable law, it overrides ordinary law and any conduct that is inconsistent with it and, to the extent that ordinary legal remedies are inadequate or do not give proper effect to the fundamental rights, the Bill of Rights generates its own remedies. The methodology for the conduct of direct rights litigation is applicable.

Question 3

Vertical application

Answer 3

Vertical application refers to the Bill of Rights to a dispute which concerns the constitutionality of legislation; or a dispute to which the state is a party

Question 4

Horizontal application of the Bill of Rights

Answer 4

Horizontal application refers to the application of the Bill of Rights to a dispute between private parties where the constitutionality of legislation is not an issue

Question 5

Indirect application must be considered before direct application

Answer 5

The indirect application of the Constitution is preferred before direct application. The reasoning behind this is that courts should avoid making pronouncements on the meaning of the Constitution where it is not necessary, so as to leave space for the legislature to reform the law in accordance with its own interpretation of the Constitution. This is also known as the principle of avoidance.