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Questions and Answers
What are the three stages of fundamental rights litigation?
Procedural stage, Substantive stage, Remedy stage
What is the focus of the procedural stage in fundamental rights litigation?
In the substantive stage, the court determines if a right in the Bill of Rights has been violated.
True
If a violation of a right is found in the substantive stage, the court will consider whether it is a justifiable limitation of a right. If not, the court will determine an appropriate ______.
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What is the right guaranteed by Section 26 of the Bill of Rights?
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What is the state required to take in order to achieve the progressive realisation of the right to access to health care services?
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What is guaranteed by Section 28 of the Bill of Rights?
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What is not permitted according to Section 26 of the Bill of Rights?
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What is guaranteed by Section 29 of the Bill of Rights?
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What is the fundamental principle enshrined in Section 10 of the Bill of Rights?
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Study Notes
Fundamental Rights Litigation
- Fundamental rights litigation takes place in three distinct stages: procedural, substantive, and remedies stages.
Procedural Stage
- Concerned with applying the Bill of Rights to the litigation subject matter
- Determines the justiciability of the issue to be decided
- Establishes the standing of the applicant
- Determines the jurisdiction of the court to grant relief claimed by the applicant
Substantive Stage
- Establishes whether a right in the Bill of Rights has been violated based on case facts
- Considers whether the violation is a justifiable limitation of a right if a violation is found
Remedies Stage
- Considers an appropriate remedy to deal with the unconstitutional infringement of a fundamental right if the violation is not justifiable
Human Rights
Housing
- Everyone has the right to access to adequate housing.
- The state must take reasonable measures to achieve the progressive realisation of this right within available resources.
- No one can be evicted from their home or have their home demolished without a court order considering all circumstances.
Health Care, Food, Water, and Social Security
- Everyone has the right to access health care services, including reproductive health care.
- Everyone has the right to sufficient food and water.
- Everyone has the right to social security, including social assistance if unable to support themselves and dependants.
- The state must take reasonable measures to achieve the progressive realisation of these rights within available resources.
- No one can be refused emergency medical treatment.
Children's Rights
- Every child has the right to basic nutrition, shelter, and basic health care services.
- Every child has the right to social services.
Education
- Everyone has the right to a basic education, including adult basic education.
- Everyone has the right to further education, which the state must make progressively available and accessible.
Human Dignity
- Every person has inherent dignity and the right to have their dignity respected and protected.
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Description
Learn about the three stages of fundamental rights litigation, including the procedural, substantive, and remedies stages. Understand the role of courts in each stage, from application to remedies.
