Tutorial 3 Flashcards
This section of the Constitution enables class actions in South African law: (1)
A) S39(b)
B) S37(c)
C) S38(c)
D) S39(d)
C-Sec 38(c)
Advise a client, with reference to authority, as to what considerations are taken into account when determining whether a person has standing on the basis of acting in the public interest
The General nature of the action(1). Does there exist another reasonable and effective manner in which the action could be brought(1)? To what degree are
those affected by the cause of action vulnerable(1)? What is the nature of the
right that is alleged to be Infringed(1)? What is the nature of the relief
requested(1)? Section 38(d) of the Constitution
A client approaches you, wishing to approach the court for an order of invalidity for legislation that the client believes to conflict with the Constitution. The client informs you that her friend has already brought a similar challenge to the court in an ongoing case, however, your client “wants to be sure” that the court realizes the gravity of the situation by bringing another similar application. How would you advise your client?
(3)
The principle of ripeness(1), in judicial proceedings aims to deter redundancies(1)
that may reduce the efficacy of the judicial system. This principle was confirmed in the case of Ngema v Post Office Retirement Fund(1)
The institution of a class action under South African law is governed by
____(A)_____. The requirements are as follows. The existence of a class
______(B)_________ by _____(C)_____criteria. A valid ____(D)______ raising a
triable issue. A right to ____(E)_____ that depends upon the _____(F)_______ of the
issue. The ____(G)_____ sought must flow from the___(H)______. (Note that some
answers may repeat.) (8)
A. Section 38(c) of the Constitution.
B. Identifiable.
C. Objective.
D. Cause of Action.
E. Relief.
F. Determination.
G. Relief.
H. Cause of Action
As an attorney you are aggrieved to hear that the community you grew up in, but have since moved out of, has suffered a violation of some Constitutional right. Based on case law, what principle may prevent you from approaching the court to request
relief? (2)
The principle of standing(1) based on the case of Limpopo Legal Solutions v
Vhembe District Municipality and Others(1)/Giant Concerts CC v Rinaldo Investments Pty (Ltd).(1)
In South African legal history, which case landmarked the first significant shift from literalism to purposivism in statutory interpretation? (1)
(a) Jaga v Dönges NO and Anothers; Bhana v Dönges, NO and Another 1950 (4) SA 653;
(b) S v Makwanyane 1995 (3) SA 391 (CC);
(c) Justice Alliance of South Africa v President of Republic of South Africa
and Others, Freedom Under Law v President of Republic of South Africa and Others, Centre for Applied Legal Studies and Another v President of Republic of South Africa and Others
2011 (5) SA 388 (CC);
(d) None of the above.
(a) Jaga v Dönges NO and Anothers; Bhana v Dönges, NO and Another 1950 (4) SA 653;
What are the 2 basic differences between the interpretation of the Bill of Rights, as enshrined in the Constitution, and ordinary legislation? (4)
First, the Constitution, particularly the Bill of Rights, serves as the criterion for law and conduct that must comply with it and with the rest of the Constitution. Hence, when we interpret the Constitution, we are dealing with yardstick or criterion jurisdiction par excellence.
Secondly, the Bill of Rights must be a durable document; its integrity must be
protected, and it must, therefore, not be amended as far as possible
Which interpretation approach is provided for by s39(1)(a) of the Constitution, and what factors must be taken into account in using this approach? (with reference to relevant case law) (6)
1) From s39(1)(a) of the Constitution, provides for a purposive approach to be followed, allowing for erect to be given to the purpose of the provision taking into account the values of an open and democratic society.
2) The factors to be considered were listed in R v Big M Drug Mart Ltd as follows:
* The nature and larger objects of the Bill of Rights
* The language used to articulate the specific provision (right)
* The historical origins of the provision or the concept to be interpreted;
* The meaning and the purpose of other rights associated with the right in question;
* The court added that the meaning should be generous rather than legalistic, must fulfil the purpose of the provision and ensure rights bearers the full benefit of the Bill of Rights
Which of the following factors is NOT taken into account for purposive interpretation? (1)
(a)Language used;
(b) The drafters meaning;
(c) Nature and larger objects of the Bill;
(d) Historical origins
B) The drafters meaning
What does the generous approach to interpretation entail?
1) Generous interpretation means that the courts are required to interpret as wide and beneficial as possible to the claimant of a right as is allowed by the wording of the provision concerned and at the same time to avoid restriction as far as possible.
2) It also implies that limitation under section 36 be considered, but that limitation be restricted as far as possible.
In your own words, define the principle of avoidance
The principle of avoidance suggests that courts should avoid deciding
constitutional issues when a case can be resolved on other legal grounds, such as
statutory or common law
TRUE OR FALSE
In accordance with the Christian Lawyers’ Association v National Minister of Health and Others case, a foetus is considered a bearer of rights under the Bill of Rights. Provide a justification for your answer
False. In terms of the Christian Lawyers’ Association v National Minister of
Health and Others case, a foetus was generally considered to not be a bearer of rights.
2) The court decided that a foetus does not have constitutional rights under section 11 of
the Final Constitution.
3) The word “everyone” in section 11 does not include a foetus,
and therefore, a foetus is not afforded protection against the termination of
pregnancy
Under what circumstance, as per the Kaunda v President of the RSA judgement, would the Bill of Rights contained within the Constitution of the Republic be applied and enforceable in neighbour countries of the Republic?
The Kaunda v President of the RSA case states that the rights outlined within
the Bill of Rights on the constitution of the republic do not enjoy extraterritorial
application, thus, under no circumstance may they be applied and enforced outside
What are the conditions for the successful and lawful waiver of rights in terms of agreements between parties. i.e Wavier of ones right to privacy?
Voluntary AND permissible in accordance with the requirements for
limitation in terms of section 36(1)
