Bill of Rights Application

Direct and Indirect Application of the Bill of Rights

• The Bill of Rights applies directly to a legal dispute when a right of a beneficiary is infringed by a person or entity with a duty not to infringe the right, during the period of operation, and within the national territory.
• The Bill of Rights may apply indirectly when one or more of the direct application elements are not present, requiring all law to be developed, interpreted, and applied in a way that conforms to the Bill of Rights.

Indirect Application

• Indirect application establishes an 'objective normative value system', a set of values that must be respected when interpreting, developing, or applying common law or legislation.
• The Bill of Rights does not override ordinary law or generate its own remedies when indirectly applied.
• Instead, it demands furtherance of its values through the operation of ordinary law, respecting the rules and remedies of ordinary law.

Direct Application

• When the Bill of Rights applies directly, it overrides ordinary law and any conduct inconsistent with it.
• The Bill of Rights generates its own remedies when ordinary legal remedies are inadequate or do not give proper effect to fundamental rights.
• The methodology for direct rights litigation is applicable in direct application cases.

Significance of the Distinction

• The distinction between direct and indirect application was decisive under the interim Constitution.
• The 1996 Constitution reduced the significance of this distinction due to changes in jurisdictional and application schemes.
• However, the distinction continues to play a role in constitutional litigation, with important consequences for the form of application.