STUDY UNIT 3: FUNDAMENTAL RIGHTS CONTINUED Flashcards
HORIZONTAL APPLICATION IN PROCEDURAL STAGE
refers to when rights & obligations are conferred to by the private person
it binds the person & state
it is guarded & enforced by s8(2) of the B.O.R & it is qualified
it may not be interpreted in a way that directly imposes socio-economic obligations directly on private person & also negative obligations
to determine negative obligations, the courts must consider intensity of constitutional rights that are in question & the extent the person could invade the right
s8(1) is not qualified, it imposes negative socio-eco obligations on private person directly
Governing Body of the Juma Musjid Primary School v Essay
it shows application & interpretation of s8(2)
this is the case where a school was built on private land then the private landowner demanded a lump sum for the usage of his land
the landowner later on ordered an eviction of the school from private land
the court checked if s29(1) imposed any obligations on the landowner or not, which was the horizontal application
it was contended that the owner cannot infringe upon rights of children to education, which the court took into consideration the intensity of how the law was invaded
in this case the law was heavily invaded
INDIRECT APPLICATION FOR VERTICAL & HORIZONTAL
this is applied in terms of s39(2)
it contends that whichever legislation that overrides the common or customary law it must be done in spirit, purpose & objectives of Bill of Rights
these laws can be removed or modified constitutionally with a new law
CASE LAW FOR INDIRECT APPLICATION: Masiya v Director of Public Prosecutions
the accused was charged with rape & found guilty of the charge
the evidence found that the girl was penetrated in the anus & could not be used to rule him as guilty of rape but with indecent assault
accord to common law, anal penetration didn’t result to rape but this didn’t matter & the judge still found the person guilty
in this essence, the Constitutional Court found it necessary to adjust the definition of rape to achieve protection of human dignity, privacy & gender autonomy of the marginalized group
SUBSTANTIVE STAGE: DETERMINING THE MEANING OF THE RIGHT
it is determined that whether how the B.O.R should be interpreted
in s39(1) its contended that for a right to be interpreted- must promote the values that underlie an open and democratic society based on human dignity, equality and freedom.
the courts will use foreign or international law to help with interpretation & words must be interpreted in a purposive manner
the court may identify the goal or purpose of the right by identifying the harm that the right is intended to remedy & historical & social factors should be taken into account
SUBSTANTIVE STAGE: IS INFRINGEMENT JUSTIFIABLE
it will be infringing if it satisfied the limitation clause
limitation clause entails which rights in B.O.R may be lawfully restricted
the limitation clause has to be reasonable & justifiable in an open & democratic society
LIMITATION CLAUSE FACTORS CONSIDERED
on application of the clause the courts apply a balancing exercise
the factors are: nature of the right, importance of purpose on limitation, relation between limitation & purpose, less restrictive means to achieve the purpose
LIMITATION CLAUSE CASE LAW: Christian Education SA v Minister of Education
the case was about the corporal punishment & how it is unconstitutional accord to s10 of the SCHOOLS ACT
the Appellant & court contended that s10 infringes on the right to religion & practice
this was a definition of the application of the limitation clause as it opposed two sections of the Constitution thus the court allowed for parents to practice their religions but not infringe on the rights to dignity of children
the balance exercise was applied & contended that both rights should coexist with respect of each when applying to a conflicting case
REMEDY STAGE
Constitutional remedy focuses on harm to person in question & on harm to constitutional goal of creating a just and fair society
the remedy must be in best interest of the Constitution & avoid/prevent future infringement
if any law is inconsistent with the Constitution, then it is deemed as invalid
MECHANISMS OF REMEDY
severance: removes unconstitutional provisions & leaves original Act
reading in: reading of words in Act
controlling retrospective effect of invalidity: allows the court to restrict effect & usage of the invalid statute
temporarily suspending invalidity: violator is given period in which to remedy the violation
EQUALITY IN THE CONSTITUTION
section 9 of the Constitution governs equality & freedom from discrimination & its enforcement in S.A
it prohibits discrimination from the gov & private persons & allows affirmative action to be taken to redress the past unfair discriminations
it has the central position in the Constitution & prominent in the B.O.R, also featured in the preamble
