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Introduction into law > Module 3 > Flashcards

Module 3 Flashcards

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1
Q

What is parliament sovereignty?

A

Until 1994 the system of parliamentary sovereignty was in force in South Africa, which meant courts could not evaluate acts of parliament for their content. Now this system has been substituted by a system of constitutionalism

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2
Q

Where is the philosophical basic of the human rights found?

A

The philosophical basis of human rights is often found in natural law. Sometimes these rights are found in religion. After the middle ages the source of these rights was increasingly being found in human rationality

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3
Q

How was the modern human rights protection initiated?

A

Modern human-rights protection was initiated on an international level by introduction of the UN in 1945 and adopted the Universal declaration of Human Rights in 1948.

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4
Q

What is the universal declaration of human rights?

A

The Universal Declaration of Human Rights lists the basic rights of each individual throughout the world. This was supplemented by two treaties: the covenant and part of public international law.

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5
Q

What is a regional mechanism that protects human rights?

A

At a regional level mechanisms and organs also exist to protect human rights. The Organization of African Unity (OAU) in 1981 adopted the African Charter on Human and Peoples rights sometimes referred to as Banjul Charter and placed duties on individuals and groups

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6
Q

How can human rights infringements be addressed?

A

International and regional protection of human rights is only subsidiary. An infringement of rights can be addressed in the most direct way and with the least delay internally in the courts of each country.

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7
Q

What is the African Commission on Human Rights responsible for?

A

The African Commission on Humans Rights and Peoples rights are responsible for monitoring state compliance with the Charter.

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8
Q

What is a first generation right?

A

First-generation rights provide a shield for individuals to protect themselves against the state authority. Guarantees freedom from unlawful interference by the state. They operate on a vertical level. These rights are political and civil rights, including the right to life, freedom of expression, of association and religious freedom. These rights are known as blue rights and origins are in the struggle against despotic regimes.

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9
Q

What are second generation rights?

A

Second-generation rights are socio-economic rights. They do not require the state to refrain from doing something specific, but to take positive action. These rights are mostly controlled by the state such as the right to housing, education, medical services. Claims to theses rights are unenforceable in a state where insufficient means exist to give them effect

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10
Q

What are third generation rights?

A

Third-generation rights pertain to groups. Such as the right to a healthy living environment, right to development and self-determination. These are green right

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11
Q

What are the three main obligations governments have to a right?

A

The government’s three main obligations to a right is the duty to respect, protect and fulfil it.

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12
Q

What is the obligation of governments to respect rights mean?

A

The obligation to respect requires governments to refrain from interfering with an individual’s enjoyment of their rights.

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13
Q

What is the obligation of governments to protect rights mean?

A

The obligation to protect ensures a government that individual’s rights are not curtailed by third parties.

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14
Q

What is the obligation of governments to fulfil rights mean?

A

The duty to fulfil requires the allocation of resources and other means to ensure that the right is actually made effective

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15
Q

What is the most important document of human rights in South Africa?

A

The Freedom Charter may be regarded as the first important human-rights document originating from South Africa as it gives equal rights to all South Africans.

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16
Q

What is the principle of adjudicative subsidiarity?

A

The principle of adjudicative subsidiarity states that courts should declare legislation and rules of the common law unconstitutional only if those laws cannot be interpreted in the line with the Constitution. This is because section 39 required courts to interpret all law in the light of values of the Constitution.

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17
Q

What does section 2 state?

A

Section 2 of the Constitution stipulates that the whole Constitution is the supreme law of the Republic.

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18
Q

What does section 8 state?

A

Section 8 of the Constitution bestows rights and duties of the application of the law

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19
Q

What does section 9 state?

A

Section 9 of the Constitution is the right to equality

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20
Q

What does section 10 state?

A

Section 10 is the right to dignity

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21
Q

What does section 11 state?

A

Section 11 is the right to life

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22
Q

What does section 12 state?

A

Section 12 is the right to safety

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23
Q

What does section 13 state?

A

Section 13 is the right to not be forced labour

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24
Q

What does section 14 state?

A

Section 14 is the right to privacy

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25
Q

What does section 15 state?

A

Section 15 is the right to freedom of religion and opinions

26
Q

What does section 16 state?

A

Section 16 is the right to expression

27
Q

What does section 17 state?

A

Section 17 is the right to peaceful protect

28
Q

What does section 18 state?

A

Section 18 is the right to freedom of association

29
Q

What does section 19 state?

A

Section 19 is the right to political rights

30
Q

What does section 20 state?

A

Section 20 is the right for citizens to have citizenship

31
Q

What does section 21 state?

A

Section 21 is the right to movement and residence

32
Q

What does section 22 state?

A

Section 22 is the right to trade, occupation and residence

33
Q

What does section 26 state?

A

Section 26 is the right to housing

34
Q

What does section 27 state?

A

Section 27 is the right to healthcare, food, water and social security

35
Q

What does section 28 state?

A

Section 28 is the rights of Children

36
Q

What does section 29 state?

A

Section 29 is the right to education

37
Q

What does section 30 state?

A

Section 30 is the right to language and culture

38
Q

What does section 31 state?

A

Section 31 is the right to linguistic and religious communities to gather and to practice their religion

39
Q

What does section 32 state?

A

Section 32 is the right to access information

40
Q

What does section 33 state?

A

Section 33 is the right to just administrative action

41
Q

What does section 36 state?

A

Section 36 states the limitations to rights

42
Q

What does section 37 state?

A

Section 37 states when a state of emergency can be declared

43
Q

What does section 38 state?

A

Section 38 states the enforcements of the rights

44
Q

What does section 39 state?

A

Section 39 states the interpretation of the rights

45
Q

What happens to rights during a state of emergency?

A

During a state of emergency as declared in section 37. Some rights in chapter 2 may be suspended, while some are non-derogable and may not be suspended.

46
Q

What must be meet for a right to be limited?

A

For a right to be limited it must meet the proportionality test in section 36 and be generally applicable as well as be reasonable and justifiable in an open and democratic society

47
Q

What is the law of general application?

A

Legislations relating to section 36 is a law of general application, which applies formally to everyone but might not apply equally

48
Q

What does section 36 state?

A

(1) The rights in the Bill of Rights may be limited only in terms of law of general
application to the extent that the limitation is reasonable and justifiable in an open
and democratic society based on human dignity, equality and freedom, taking into
account all relevant factors, including—
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.
(2) Except as provided in subsection (1) or in any other provision of the Constitution, no
law may limit any right entrenched in the Bill of Rights.

49
Q

When interpreting section 36 we need to understand?

A
  • Some rights have the right to be limited
  • The limitation of the right take has to take place in a law of general application
  • Is it reasonable and justifiable in an openly democratic society based on human dignity, equality and freedom
50
Q

What is the two things balanced in section 36?

A

Section 36 is used to balance the interest of government and the individual when a right has been limited. It shows how a reliance on different constitutional rights yields different results

51
Q

What are the steps to answering exam question based on the section 36 limitations?

A
  1. Preliminary step- what is being limited? What is the action being limited? Using fact find in what way the right has been interfered with. What right does the limitation affect?
  2. Are you dealing with a law of general application? Does this law apply to everyone? If there is no law of general application the power being exercised is arbitrary. State whether you are dealing with a law of general application otherwise the law will be arbitrary.
  3. Do a limitation analysis
52
Q

What is the importance of a limitation analysis?

A

The importance of the limitation analysis is you hold the rights of the person, while weighing it against the limitations and the view of the state.

53
Q

What are the questions asked in a limitation analysis?

A
  1. The nature of the right- why is the right important and what is the content of the right give it meaning. Link them to how they affect other rights and why it’s important. Draw on case law and what you can use in service of arguments
  2. The importance of the purpose of the limitation - this is looked through the view of the government and in favour of them. What was the purpose of the limitation and is that purpose important? Why are you limiting these rights?
  3. The nature and extent of the limitation- what kind of impact does the limitation have on the individual? What is the nature and extent of the limitation? We need to describe the impact of the limitations on weather the nature and extent is harsh or mildly
  4. The revelation between the purpose and the limitation- Is there a rational connection between the purpose of the law (what you are trying to achieve) and the actual steps that are taken? Is there a connection between these connections? You find a solution to weather the right meets its objectives
  5. Are there less restrictive means to achieve the purpose?- should the government have taken the less restrictive means. Is there any other way to achieve the purpose of the limitation? Are there ways to mitigate the impact of the limitation? If these less restrictive means that were adopted then the limitation is justifiable
54
Q

What is the appropriate remedy should be granted followed when its found that a right has been violated according to Section 38?

A
  • Restricting it in temporal terms by suspending it for a fixed period.
  • Restricting in respect of its substances if the court orders that certain words or phrases must be read into the statute to rectify the unconstitutionality of the revisions.
  • By a court making a declaration of rights only and awarding damages to compensate for the unconstitutionality
  • A mandatory interdict which compels the government to take steps of ratification
  • A prohibitory interdict to stop officials from acting in an unconstitutional way
  • Structural interdict were there is supervision to make sure the interdict is being followed
55
Q

Why is the court hesitant to adopt interdicts?

A

The court is reluctant to adopt interdicts because they get involved in the day-to-day workings of government and could be seen as infringing and thus disregarding the principles of separation powers.

56
Q

How is section 39 supposed to be interpreted?

A

Section 39 interprets the Bill of Rights within the guidelines that it must be in line with the values of the new society such as democracy, freedom, equality and human dignity. It must also be in the spirit of the Constitution.

57
Q

What does section 23 state?

A

Section 23 is the rights of labour relations

58
Q

What does section 24 state?

A

Section 24 is the rights of environments

59
Q

What does section 25 state?

A

Section 25 is property rights

60
Q

What does section 34 state?

A

Section 34 is the right to access to court

61
Q

What does section 35 state?

A

Section 35 is the rights of the Arrested, detained and accused persons

Introduction into law (12 decks)

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