Tests and Processes Flashcards
When is the s9(1) test used?
when the state differentiates between groups of people, potentially threatening constitutional value of rule of law
What is the s9(1) test?
Rationality test from Harksen.
- Does the provision differentiate?
- What is the legitimate purpose of the provision?
- Is there a rational connection between 1 and 2?
When do we use the s9(2) test?
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.
What case sets out the s9(2) test?
Van Heerden
What is the s9(2) test?
- the measure must target groups/categories of people who have been disadvantaged by past unfair discrimination?
- the measure must be designed to protect/advance groups who have been previously disadvantaged by past unfair discrimination
- these measures must promote achievement of equality in the long run.
When is the s9(3) test used?
When state, through the passing of legislation, directly or indirectly discriminates against groups of people on listed/analogous grounds from s9(3).
Where is the s9(3) test from?
Harksen
What is the s9(3) test?
- has there been differentiation? (s9(1) test)
- 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? - if this is unfair discrimination, can it be justified in terms of the general limitation clause in s36(1)?
case law concerning analogous grounds?
Hoffman (HIV status)
indirect discrimination cases?
Mahlangu - COIDA and its affect on domestic workers (black, female, poor etc.)
S v Jordan (minority) - sex workers act unfairly discriminated vs women
what does s9(4) give rise to?
PEPUDA - promotion of equality and prevention of unfair discrimination act
Lawrence case
Freedom of religion case - “freedom implies an absence of coercion or constraint”
Pillay
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.
Laerskool Randhart
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
Prince
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.
Strydom
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”
De Lange
“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.”
s16
freedom of expression - extends to the limitation of hate speech
characteristics of freedom of expression
innate, consider South Africa’s history with FOE, central to being human.
why do we prohibit hate speech?
- prevent disruption of public order
- prevent psychological harm to targeted groups
- prevent visible and invisible exclusion of minority groups
- prevent social conflagration and political disintegration
what legislation prohibits hate speech?
s10 and s12 of PEPUDA - also prohibits dissemination and publication of information that unfairly discriminates.
Islamic Unity Convention
- 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’
NMF Trust v Afriforum
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.
Afriforum and Another v Malema and others
“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.
Finding in Afriforum v Malema?
- 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
Qwelane v SAHRC and Another
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.
What did the First Certification case confirm about SE rights?
are justiciable
What did Grootboom say about the justiciability of SE rights?
Not about whether SE rights are justiciable, but how to enforce them in a given case.
How do we deal with Unqualified rights in terms of legal procedure?
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.
How do we deal with Qualified rights in terms of legal procedure (when there is positive obligation)
Positive obligation on qualified rights: apply the reasonableness review in Grootboom
How do we deal with Qualified rights in terms of legal procedure (when there is negative obligation)
apply the s36 analysis (Jaftha)
negative obligations
the state bears a duty to refrain from interfering with social and economic rights just as it does with civil and political rights (Mazibuko)
Positive obligations
need to do something - e.g., s26 etc.
Qualified rights
“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”
Unqualified rights
immediately realisable
- rights the state has to give, needs no qualification to be realised.
Soobramoney v Minister of Health
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.”
rejection of the minimum core of obligations that realise real rights
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
What test do the courts apply to determine whether the state has complied with its positive constitutional duties to progressively realise qualified SE rights?
- Take legislative and other measures to respect, protect, promotes and fulfil SE rights
- ensure the content of any legislative/other measures it adopts for this purpose are also ‘reasonable’
what does the SE rights test entail?
- The state must have a programme
- 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.
Meaningful engagement
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?
Grootboom
- 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
Olivia Road
did the eviction comply with obligations of s26(3) of the CSA?
court called for meaningful engagement
Mazibuko
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
Khosa
ambit of positive obligation to provide social security to everyone
- s27(2) was an internal limitation to (1)
- read in the words ‘permanent resident’
Mahlangu
exclusion of domestic workers from provisions in COIDA
- compensation for occupational injury was a form of social assistance re s27(1)(c)
Jaftha
“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
Remedies for the violation of a SE right?
- ordering state to adopt a programme/reformulate unreasonable one
- meaningful engagement
- structural interdict
- constitutional damages
When do we limit rights?
limit them in s36 when it is justifiable and reasonable to do so
two purposes of s36
- recognises that no constitutional right is absolute
- sets out factors court can consider when determining whether limitation of constitutional enough to condone its infringement
two stage limitation analysis
re s36:
1. has a limitation occurred?
2. is this limitation justifiable?
justifiability of s36 analysis
- is this a law of general application?
- is this limitation reasonable and justifiable in an open and democratic society based on human dignity, equality, and freedom.
- consider (a) - (e)
Dawood
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
