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South African Constitutional Law > Tests and Processes > Flashcards

Tests and Processes Flashcards

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1
Q

When is the s9(1) test used?

A

when the state differentiates between groups of people, potentially threatening constitutional value of rule of law

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2
Q

What is the s9(1) test?

A

Rationality test from Harksen.

  1. Does the provision differentiate?
  2. What is the legitimate purpose of the provision?
  3. Is there a rational connection between 1 and 2?
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3
Q

When do we use the s9(2) test?

A

when redress measures taken by the state (as allowed in s9(2)) are deemed to be unconstitutional, the test determines whether these remedial or restitutive measures pass constitutional muster.

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4
Q

What case sets out the s9(2) test?

A

Van Heerden

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5
Q

What is the s9(2) test?

A
  1. the measure must target groups/categories of people who have been disadvantaged by past unfair discrimination?
  2. the measure must be designed to protect/advance groups who have been previously disadvantaged by past unfair discrimination
  3. these measures must promote achievement of equality in the long run.
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6
Q

When is the s9(3) test used?

A

When state, through the passing of legislation, directly or indirectly discriminates against groups of people on listed/analogous grounds from s9(3).

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7
Q

Where is the s9(3) test from?

A

Harksen

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8
Q

What is the s9(3) test?

A
  1. has there been differentiation? (s9(1) test)
  2. has there been mere differentiation, or is it discrimination?
    - furthermore, is it fair or unfair? and thus who bears the burden of proof otherwise?
    - is it a case of intersectionality?
  3. if this is unfair discrimination, can it be justified in terms of the general limitation clause in s36(1)?
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9
Q

case law concerning analogous grounds?

A

Hoffman (HIV status)

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10
Q

indirect discrimination cases?

A

Mahlangu - COIDA and its affect on domestic workers (black, female, poor etc.)

S v Jordan (minority) - sex workers act unfairly discriminated vs women

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11
Q

what does s9(4) give rise to?

A

PEPUDA - promotion of equality and prevention of unfair discrimination act

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12
Q

Lawrence case

A

Freedom of religion case - “freedom implies an absence of coercion or constraint”

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13
Q

Pillay

A

FOR and PEPUDA case, re wearing a nose ring at school.
Not up to the state to decide what is religious practice is/isn’t.
reasonable accommodation test - sometimes communities have to take on positive obligations in order to facilitate things, even if they cost money.

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14
Q

Laerskool Randhart

A

Public schools cannot claim to be denominational
- feeder communities will evolve beyond religious ideals
- sense of inferior differentness in minority students
- contrary to the requirement of equitable treatment of religions

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15
Q

Prince

A

Infringement of the right to Freedom of Religion, but reasonable and justifiable under s36(1) because:
- can’t easily distinguish between who can and cannot smoke
- state’s ability to enforce drug use would be impaired
- administration and enforcement would be an issue.

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16
Q

Strydom

A

Unfair discrimination on the grounds of sexual orientation - PEPUDA claim
- church relied of FOR to justify discrimination
- because of the facts (i.e., Strydom was at a distance to the actual church practices/ideologies) church was NOT granted an exemption.
- look at the extremeness of Strydom’s personal situation as a result of him being fired.
- “his right to dignity is seriously impaired due to the unfair discrimination”

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17
Q

De Lange

A

“the closer the court gets to personal and intimate spheres, the more they enter into the inner sanctum and thus interfere with our privacy and autonomy.”

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18
Q

s16

A

freedom of expression - extends to the limitation of hate speech

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19
Q

characteristics of freedom of expression

A

innate, consider South Africa’s history with FOE, central to being human.

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20
Q

why do we prohibit hate speech?

A
  1. prevent disruption of public order
  2. prevent psychological harm to targeted groups
  3. prevent visible and invisible exclusion of minority groups
  4. prevent social conflagration and political disintegration
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21
Q

what legislation prohibits hate speech?

A

s10 and s12 of PEPUDA - also prohibits dissemination and publication of information that unfairly discriminates.

22
Q

Islamic Unity Convention

A
  • claiming that a clause of the act was unconstitutional.
  • characterised FOE as being foundational to democratic society
  • FOE should include stuff that offends, shocks, or disturbs - not just the well-received stuff
  • what they said was protected by the CSA, what isn’t protected is ‘advocacy of hatred’
23
Q

NMF Trust v Afriforum

A

How to interpret s10(2) of PEPUDA
- wants to declare any display of the old flag as hate speech, therefore extend definition of hate speech to beyond words.
- the old flag: display is indicative of a clear intent to bring its effects on fellow men and women,
- relief sought is not a ban, but limitation of display for genuine artistic purpose etc.
court ruled in NMFT’s favour.

24
Q

Afriforum and Another v Malema and others

A

“kill the Boer” case, series of findings declared from this case:
1. words said at a political rally treated as publication to the nation
2. intention is irrelevant, words’ meanings are the most important.
3. meaning found in an objective reasonable person test - all potential meanings must be explored.
4. once meaning found, then court must decide if words reasonably capable of committing hate speech.
5. justification is not a defence.

25
Q

Finding in Afriforum v Malema?

A
  • Words were published and concerned a recognisable group in society
  • words undermined dignity of boers, were discriminatory and harmful
  • no justification exists that allows the words to be sung
26
Q

Qwelane v SAHRC and Another

A

the test for intention to be harmful is an objective reasonable person test
- “reasonably construed”
- “to demonstrate clear intention”
** it is the effect of the text, not the intention of the author.

  • sections of s10 of PEPUDA must be read conjunctively so as not to make s10 over broad.
27
Q

What did the First Certification case confirm about SE rights?

A

are justiciable

28
Q

What did Grootboom say about the justiciability of SE rights?

A

Not about whether SE rights are justiciable, but how to enforce them in a given case.

29
Q

How do we deal with Unqualified rights in terms of legal procedure?

A

If there is a positive or negative obligation on the state to act:
- go to a s36 analysis about whether there has been an infringement of these rights.

30
Q

How do we deal with Qualified rights in terms of legal procedure (when there is positive obligation)

A

Positive obligation on qualified rights: apply the reasonableness review in Grootboom

31
Q

How do we deal with Qualified rights in terms of legal procedure (when there is negative obligation)

A

apply the s36 analysis (Jaftha)

32
Q

negative obligations

A

the state bears a duty to refrain from interfering with social and economic rights just as it does with civil and political rights (Mazibuko)

33
Q

Positive obligations

A

need to do something - e.g., s26 etc.

34
Q

Qualified rights

A

“access to” - doesn’t give the right itself, only access to it.
- not immediately realisable
“the state must take reasonable legislative and other measures, within its available resources, to alleviate the progressive realisation of this rights”

35
Q

Unqualified rights

A

immediately realisable
- rights the state has to give, needs no qualification to be realised.

36
Q

Soobramoney v Minister of Health

A

first case re the scope and content of qualified rights.
- the realisation of SE rights gives rise to resource implications, so not an unqualified right.
- emergency medical care requires a “sudden catastrophe which calls for immediate medical treatment”
– i.e., not ongoing treatment for chronic illness

  • “a court will be slow to interfere with rational decisions taken in good faith by political organs.”
37
Q

rejection of the minimum core of obligations that realise real rights

A

Grootboom rejected minimum core on the basis that it was difficult to determine what that core was in terms of housing.
- too many factors to take into account
- would also be a breach of SoP

38
Q

What test do the courts apply to determine whether the state has complied with its positive constitutional duties to progressively realise qualified SE rights?

A
  1. Take legislative and other measures to respect, protect, promotes and fulfil SE rights
  2. ensure the content of any legislative/other measures it adopts for this purpose are also ‘reasonable’
39
Q

what does the SE rights test entail?

A
  1. The state must have a programme
  2. The programme must be reasonable
    - comprehensive and co-ordinated
    - sufficient resources and personnel allocated
    - coherent policy and capable of progressive realisation
    - are other rights/members of society implicated?
    - continuous review of reasonableness.
40
Q

Meaningful engagement

A

when evicting people, state should consider meaningful engagement with the community (Olivia Road)
- what are the consequences? can the city help?
- are there obligations placed on the state and can they be fulfilled?
- can any interim measures be put in place?

41
Q

Grootboom

A
  • positive obligation to provide access to adequate housing
  • negative obligation - eviction and the nature in which it occurred.

Positive obligation was qualified:
- reasonable legislative or other methods to realise the right
- rights must be realised progressively
- needed to be within the states available resources

42
Q

Olivia Road

A

did the eviction comply with obligations of s26(3) of the CSA?

court called for meaningful engagement

43
Q

Mazibuko

A

right to access sufficient water, did the change of water systems breach the negative obligation of the state not to interfere with right to sufficient water?

findings:
- right doesn’t require state to provide water on demand
- affirmed the rejection of minimum core
- no breach of positive obligation
- no breach of negative obligation

44
Q

Khosa

A

ambit of positive obligation to provide social security to everyone
- s27(2) was an internal limitation to (1)
- read in the words ‘permanent resident’

45
Q

Mahlangu

A

exclusion of domestic workers from provisions in COIDA
- compensation for occupational injury was a form of social assistance re s27(1)(c)

46
Q

Jaftha

A

“any claim based on SE rights must necessarily engage with the right to human dignity”

s26 must be read as a whole, needs to be a decisive break from the past
“any measure which deprives a person of adequate housing, limits rights set out in s26(1): such a measure may be justified under s36 of the CSA

47
Q

Remedies for the violation of a SE right?

A
  • ordering state to adopt a programme/reformulate unreasonable one
  • meaningful engagement
  • structural interdict
  • constitutional damages
48
Q

When do we limit rights?

A

limit them in s36 when it is justifiable and reasonable to do so

49
Q

two purposes of s36

A
  • recognises that no constitutional right is absolute
  • sets out factors court can consider when determining whether limitation of constitutional enough to condone its infringement
50
Q

two stage limitation analysis

A

re s36:
1. has a limitation occurred?
2. is this limitation justifiable?

51
Q

justifiability of s36 analysis

A
  1. is this a law of general application?
  2. is this limitation reasonable and justifiable in an open and democratic society based on human dignity, equality, and freedom.
    - consider (a) - (e)
52
Q

Dawood

A

CC held that s172(1)(a) imposes a duty on the courts to declare all law or conduct which unjustifiably limits a constitutional right to be unconstitutional

South African Constitutional Law (9 decks)

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