Litigating the Bill of Rights

Question 1

What are the ‘normative values’ of the CSA?

Answer 1

Equality, Human Dignity, Freedom

Question 2

Where in the Constitution are the normative values visible?

Answer 2

s7(1) - the BOR affirms the democratic values of ‘human dignity, freedom, and equality’

s36(1) - rights limitations must be reasonable and justifiable in an open and democratic society based on the values of equality, dignity and freedom.

s39(1) - when interpreting rights, courts must promotes values of human dignity, equality and freedom.

Question 3

What is the notion of Subsidiarity?

Answer 3

‘[A] hierarchical ordering of institutions, of norms, of principles, or of remedies’ one in which the ‘central institution, or higher norm, should be invoked only where the more local institution, or concrete norm, or detailed principle or remedy, does not avail.’ (para 46 of My Vote Counts)

• when the CSA grants both a general right (dignity), and a specific right (access to housing) the litigant must invoke the specific right first, the more general right is subsidiary.
• i.e., the legislation is primary when it exists, then go to the CSA.
• Encourages a respect for the legislature and the separation of powers. Prevents the development of two parallel systems of law, and allows for incremental development of the law.

Question 4

What are the three stages of application when dealing with the Bill of Rights?

Answer 4

Application, Substantive, Remedial

Question 5

What does Application of the Bill of Rights entail?

Answer 5

• Who is a rights holder?
• Who can approach the courts (i.e., who has standing?)
• Who is bound by the right? (direct/indirect, vertical/horizontal application of the BOR)

Question 6

What is Direct Application?

Answer 6

Directly applying the BOR to a situation to strike down a rule/actions on the grounds that they’re unconstitutional.

Question 7

Indirect Application

Answer 7

Taking action in a way that interprets a situation as unconstitutional. Interpreting the rule made in a way that enables one’s current actions to continue by using one’s constitutional rights in the BOR. Finding a way around a rule by applying one’s rights in the BOR.

Question 8

Vertical Application

Answer 8

State to every other juristic person

Question 9

Horizontal Application

Answer 9

juristic person to juristic person OR state to state

Question 10

Positive obligation

Answer 10

Have to do something/obligation to act.

Question 11

Negative Obligation

Answer 11

Restricted to do something. The obligation is not to act

Question 12

Who can approach the courts/Who can claim?

Answer 12

In legislation that states “everyone” or “no-one” it means everyone, regardless of status. I.e., doesn’t differentiate between citizens, refugees, non-citizens, permanent residents etc.

Question 13

Which case specifies that everyone can approach the courts?

Answer 13

Khosa v Minister of Social Development (para 47)

“This Court has adopted a purposive approach to the interpretation of rights. Given that the Constitution expressly provides that the Bill of Rights enshrines the rights of “all people in our country”, and in the absence of any indication that the section 27(1) right is to be restricted to citizens as in other provisions in the Bill of Rights, the word “everyone” in this section cannot be construed as referring only to “citizens”.”

Question 14

What is a juristic person?

Answer 14

Section 8(4) – ‘‘[a] juristic person is entitled to the rights in the Bill of Rights to the extent required by the nature of the rights and the nature of that juristic person’

• Juristic persons are holders of the right to privacy, access to information, equality, freedom of expression, freedom of association, property, just administrative action
• But not: right to life, right to vote, healthcare and food – these rights adhere to human beings only.

Question 15

Who has standing in approaching the courts?

Answer 15

S38 of the CSA: ….
(a) anyone acting in their own interest;
(b) anyone acting on behalf of another person who cannot act in their own name;
(c) anyone acting as a member of, or in the interest of, a group or class of persons;
(d) anyone acting in the public interest; and
(e) an association acting in the interest of its members.

Question 16

What does ‘interest’ mean in terms of s38 of the CSA?

Answer 16

‘Interest’ doesn’t need to be direct or personal, just needs to be “sufficient interest”

Question 17

What are class actions and what do they require?

Answer 17

Class actions: lawsuit brought on behalf of a group of people
- require certification

Question 18

What can s38 of the CSA be seen as?

Answer 18

An ‘enabling clause’ - allows the public to take part in the legal process
- potentially enables the transformation of the country
(e.g. silicosis class actions, 5 billion paid to 500 000 mine workers)

Question 19

Who is bound by the right? (In terms of Direct Application: vertical and horizontal)

Answer 19

s8(1) governs the direct vertical application of rights
s8(2) governs the direct horizontal application of rights

Question 20

S8(2) of the CSA

Answer 20

“A provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right.”
- some rights impose duties that cannot be fulfilled by private parties (e.g., voting, access to courts, administrative action etc.)

Question 21

How do we determine whether a private party is bound by a right?

Answer 21

‘what is the nature of the right;
what is the history behind the right;
what does the right seek to achieve;
how best can that be achieved;
what is the “potential of invasion of that right by persons other than the State or organs of state” and,
would letting private persons off the net not negate the essential content of the right?’ Daniels v Scribante para [39]

Question 22

What is Direct Application?

Answer 22

• are the ordinary rules of law (legislation, common law and customary law) consistent with the Bill of Rights?
• if not, the Bill of Rights overrides the ordinary rules of law
• direct application generates own set of remedies

Question 23

What is Indirect Application?

Answer 23

• do the ordinary rules of law promote the values of the Bill of Rights?
• if not, the Bill of Rights does not override the ordinary law but 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 – per s39(2)

Question 24

Indirect Application to Legislation

Answer 24

‘However, this affirmative duty to “read” legislation in order to bring it within constitutional confines is not without bounds.
- An impugned statute may be read to survive constitutional invalidity only if it is reasonably capable of such compliant meaning.
- To be permissible, the interpretation must not be fanciful or far-fetched but one that reasonably arises from the challenged text without unwarranted strain, distortion or violence to the language.’
Daniels v Campbell para [83]

Question 25

Indirect Application to Common Law

Answer 25

‘It needs to be stressed that the obligation of courts to develop the common law, in the context of the section 39(2) objectives, is not purely discretionary. On the contrary, it is implicit in section 39(2) read with section 173 that where the common law as it stands is deficient in promoting the section 39(2) objectives, the courts are under a general obligation to develop it appropriately. We say a “general obligation” because we do not mean to suggest that a court must, in each and every case where the common law is involved, embark on an independent exercise as to whether the common law is in need of development and, if so, how it is to be developed under section 39(2). At the same time there might be circumstances where a court is obliged to raise the matter on its own and require full argument from the parties.’
- Carmichele