PBL 220 Important Cases Exam PDF

**[Theme 1: The Judiciary:]** **[Constitutional Jurisdiction and the Right to Religion ]** 1. ***[Womens Legal Centre Trust (NB) ]*** Constitutional Court confirmed the SCA ruling which legally recognizes Muslim marriages, and declares certain sections of the Marriage Act and Divorce Act uncon...

**[Theme 1: The Judiciary:]** **[Constitutional Jurisdiction and the Right to Religion ]** 1. ***[Womens Legal Centre Trust (NB) ]*** Constitutional Court confirmed the SCA ruling which legally recognizes Muslim marriages, and declares certain sections of the Marriage Act and Divorce Act unconstitutional. The Constitutional Court was approached to give finality to the decision. When other courts make rulings on constitutionality, they have no force until they are confirmed by the Constitutional Court. **[Transformative Constitutionalism and the Judiciary]** 2. ***National Coalition for Gay and Lesbian Equality*** **(NB)** 3. ***S v Makwanyane*** **(NB)** Transformative constitutionalism requires of judges as guardians of the socio-political transformation project to commit to doing more with the law. Requires a historical self conscious judge who pays regard to the legal history. It is a form of activism in the adjudication of rights. **[Decolonization and the Judiciary]** 4. ***Bhe v Khayelitsha Magistrate*** 5. ***Shilubana v Nwamitwa*** Evidenced the preservation, upgrade and freezing out of relevance to the flux of traditional community life. Focused on the development of customary law through the lens of either the common law or the Constitution. **[Importance of the Judiciary in a Democratic Country]** 6. ***[Pharmaceutical Manufacturers of South Africa: In re: Ex parte President of the Republic of South Africa 2000 (CC) ]*** Rejection of the principle of parliamentary sovereignty Rule of law Control of public power Judicial review of legislation and testing of conduct against the Constitution. **[Reasons for Exclusive Jurisdiction ]** 7. ***[Women's Legal Centre Trust v President of the Republic of South Africa ]*** Draw on the Court's political legitimacy Reflects its special status as guardian of the Constitution Avoid tension with other arms of government 8. ***[Cape Bar Council v Judicial Service Commission and others ]*** Facts ▪ The application concerns the validity of the proceedings and actions of the JSC at its meeting of 12 April 2011 ('the meeting') when it convened to interview and select candidates for judicial appointment in respect of three vacancies on the bench of the WCHC. One candidate, Henney J, was recommended by the JSC for appointment and was subsequently appointed by the President of the Republic of South Africa in terms of s 174(6) of the Constitution on that advice of the JSC. No candidates were recommended in respect of the other two vacancies and they thus remained vacant. ▪ When the aforesaid shortlisted candidates were interviewed and their selection decided upon, the President of the Supreme Court of Appeal ('the SCA') was not present at the meeting. Nor was the Deputy President of the SCA present at the meeting. ▪ The JSC is enjoined in terms of provisions of s 174 of the Constitution to make recommendations regarding the appointment of Judges to the High Court. That constitutes the exercise of a public power. How that power is exercised, or not exercised, or whether it is appropriately exercised i.e. the control thereof, is always a constitutional matter. It is a principle of the rule of law which requires that the exercise of that public power may not be arbitrary but must be rational. That is the basis upon which public power may be reviewed; in accordance with the principle of legality. Ruling ▪ In exercising, or not exercising a constitutional power, the particular organ of state must be accountable and transparent as required by S195(1)(f) and (g) of the Constitution. ▪ It does so by showing that there is a rational objective basis between the power conferred and its decision. ▪ The composition of the JSC is constitutionally mandated, reflecting a balance between members with legal training and other members appointed by the Government. ▪ Section 178(1) prescribes the composition thereof. **[❖ Section 176 -- Terms of Office and Remuneration (NB)]** 9. ***[Justice Alliance of South Africa v President of the Republic of South Africa ]*** 10. ***[Freedom Under Law v President of the Republic of South Africa ]*** 11. ***[Centre for Applied Legal Studies and Another v President of Republic of South Africa and Others]*** All three of the above cases are analyzed together. FACTS: ▪ The three applications for direct access arise from a decision by the President of the Republic of South Africa to extend the term of office of the Chief Justice of South Africa for five years. ▪ On 11 April 2011 the President requested the Chief Justice in writing to remain in office for an additional period of five years. ▪ Section 176(1) of the Constitution provides: A Constitutional Court judge holds office for a nonrenewable term of 12 years or until the age of 70, whichever comes first unless an Act of Parliament extends the term of office of the Constitutional Court judge ▪ Section 4 of the Judges Remuneration and Conditions of Employment Act: Provides that a Constitutional Court judge, whose 12- year term of office expires or who reaches the age of 70 years before completing 15 years active service, must continue in office until the completion of 15 years activeservice or until that judge attains the age of 75 years, whichever is sooner. **▪ Section 8(a) of the Judges Remuneration and Conditions of Employment Act:** A Chief Justice who becomes eligible for discharge from active service in terms of section 3(1)(a) or 4(1) or (2), may, at the request of the President, from the date on which he or she becomes so eligible for discharge from active service, continue to perform active service as Chief Justice of South Africa for a period determined by the President, which shall not extend beyond the date on which such Chief Justice attains the age of 75 years Held: ▪ The determination of this case depends on S176(1) of the Constitution and S8(a) of the Judges Remuneration and Conditions of Employment Act. ▪ This is against the background of the constitutional imperatives of: **Rule of Law** ** The Separation of Powers** ** Judicial Independence** The central issue that arises for determination is whether section 8(a) of the Act is consistent with section 176(1) of the Constitution. ▪ It is declared that section 8(a) of the Judges' Remuneration and Conditions of Employment Act 47 of 2001 is inconsistent with the Constitution and invalid. ▪ It is declared that the decision of the President of the Republic of South Africa to request the Chief Justice of South Africa to continue performing active service as Chief Justice in terms of section 8(a) of the Judges' Remuneration and Conditions of Employment Act 47 of 2001 is inconsistent with the Constitution and invalid and that the consequent extension of the term of office of the Chief Justice is of no force and effect. 12. ***[Hlophe v Judicial Service Commission and Others ]*** Facts ▪ This is a review application brought by Hlophe JP to set aside the decision of the Judicial Service Commission (JSC), taken on 25 August 2021, in which it resolved, by a majority of 8-4, that he had committed gross misconduct. The consequence of such a decision is that Hlophe JP must be referred to Parliament to be subjected to a motion to impeach him. Relevant Law ▪ **[Section 177(1)(a) (NB) ]** A judge may be removed from office only if -- ♦ The Judicial Service Commission finds that the judge suffers from an: Incapacity Is grossly incompetent or Is guilty of gross misconduct. Held ▪ The structure of Section 177(1)(a) plainly provides that a judge can be removed if the JSC finds that the judge is guilty of gross misconduct. ▪ That finding is a jurisdictional precondition to the National Assembly contemplating a resolution to remove a judge. ▪ **The decision as to whether the misconduct occurred is that of the JSC alone** **(NB).** ▪ Section 177(1)(b) provides that when the National Assembly resolves to remove a judge it must be with a supporting vote of at least two thirds of its members. ▪ In terms of section 177(2), the President of the Republic must then remove the judge from office upon the adoption of such a resolution. ▪ There is no provision in section 177 for a re-hearing of the complaint by the National Assembly 13. ***[Motata v Minister of Justice and Constitutional Development ]*** Relevant Law ▪ Section 177(1)(a) A judge may be removed from office only if -- ♦ The Judicial Service Commission finds that the judge suffers from an: Incapacity Is grossly incompetent or Is guilty of gross misconduct. **▪ Section 177(2)** The President must remove a judge from office upon adoption of a resolution calling for that judge to be removed **▪ Section 177(3)** The President, on the advice of the Judicial Service Commission, may suspend a judge who is the subject of a procedure in terms of subsection (1). 14. **[National Director of Public Prosecutions v Zuma (NB) ]** Para 37 ▪ The prosecution policy requires from prosecutors when deciding whether or not to institute criminal proceedings against an accused to assess whether there is sufficient and admissible evidence to provide a reasonable prospect of a successful prosecution. ▪ There must indeed be a reasonable prospect of a conviction, otherwise the prosecution should not be commenced with or continued. **[Theme 4: Standing, ripeness and mootness:]** 15. ***[Giant Concerts CC v Rinaldo Investments ]*** The High Court (Para 2 -- 10 of SCA Judgement) ▪ This case involves the sale of land by a municipality by means of private sale as opposed to public tender. ▪ The KZN High Court set aside the sale on application from Giant Concerts CC. The Supreme Court of Appeal (Paras 1 and 16 of CC Judgement) ▪ The SCA reversed the decision in the court a quo, and found that Giant Concerts CC did not have legal standing to challenge the lawfulness of a contract under which the 3rd Respondent, the eThekwini Municipality, sold land to the first respondent Rinaldo Investments (Pty) Ltd. ▪ The SCA based its decision on the lack of an interest which Giant Concerts CC had in the matter, because Giant claimed to act only in its own interest. Standing (paras 28 -- 58 of CC Judgement ▪ Section 38 of the Constitution provides that anyone acting in their own interest, or on behalf of another person, or as part of a group which they are a member of, or in the public interest or an association acting on behalf of its members has standing 16. ***[Limpopo Legal Solutions v Vhembe District Municipality and Others ]*** Paras 1 to 3 of CC Judgement ▪ This is an appeal from the lower courts, where an application was brought to compel the provision of sanitation benefits for residents of a municipality division. ▪ The application was made on the basis that those residents had been denied those services under the Public Finance Management Act and it infringed on their human dignity, and that this was because those residents could not afford these resources themselves. Para 7 of CC Judgement ▪ The High Court found that the applicant was not genuinely acting in the public interest under section 38(d) of the Constitution, and thus found that Limpopo Legal Solutions had no standing. Para 10 of CC Judgement ▪ Leave to appeal was granted because there were reasonable prospects of success for the applicant on both the issues of standing and costs if it is granted to appeal. Para 11 to 18 of CC Judgment ▪ Only leave to appeal in respect of the costs order was granted, and that appeal was upheld. ▪ The appeal with respect to standing and the application made, is refused on the basis that it was not an urgent application and could have been brought earlier. 17. ***[City Council of Pretoria v Walker (NB) ]*** Para 39 of the CC Judgement ▪ As it pertains to unfair discrimination, intention to discriminate is not an essential element which must be proven. ▪ However, where the discrimination is indirect (as I assume is usually the case with class actions) then intention becomes a relevant element. This is at least the case in other jurisdictions such as the United States. 18. ***[Children's Rescue Centre Trust v Pioneer Food (Pty) Ltd ]*** Principle ▪ The court allowed a class action even though the subject matter fell outside the Bill of Rights. ** Para 26 (List of Requirements for Certification) (NB)** ▪ The existence of a class identifiable by objective criteria. ▪ A cause of action raising a triable issue. ▪ That the right to relief depends upon the determination of issues of fact, or law, or both, common to all members of the class. ▪ That the relief sought, or damages claimed, flow from the cause of action and are ascertainable and capable of determination. ▪ Where the claim is for damages there is an appropriate procedure for allocating the damages to the members of the class. ▪ That the proposed representative is suitable to be permitted to conduct the action and represent the class. ▪ Whether given the composition of the class and the nature of the proposed action a class action is the most appropriate means of determining the claims of the class members. 19. ***[Justice Alliance of SA v President of the RSA and Other and two Similar Applications ]*** The Issue ▪ The issue was that the term of office of a previous Chief Justice was renewed by the President in terms of an unconstitutional statute. ▪ The application was for a declaration of constitutional invalidity of the act in question. The Claim of Standing ▪ There was no claim of standing on the basis of any specific right in Chapter 2 of the Constitution. ▪ The Court nevertheless allowed standing to all of the applicants. Para 17 of the Judgement ▪ The applicants all claimed standing in the public interest, in the interest of their members or in their own interest. ▪ They relied on various Democratic and Constitutional concepts such as: The protection of the Constitution. The protection and advancement of the understanding of and respect for the rule of law and the principle of legality. The protection of the administration of justice and the independence of the judiciary. The promotion, protection and advancement of human rights. The strengthening of Constitutional democracy. The promotion of social justice and equality. Public accountability and open governance. 20. ***[Freedom under Law v Acting Chairperson of the Judicial Services Commission ]*** Facts ▪ In this case the applicant challenged the decision of the JSC not to take action against Judge Hhlope for his alleged gross misconduct. ▪ This alleged gross misconduct consists of his trying to influence judges of the Constitutional Court to decide a pending case in a certain kind of way. Principle ▪ The courts are quite generous in awarding standing where it is in the public interest. ▪ In both this case and the Justice Alliance case, no specific Constitutional Provision was relied on and yet the applicants were granted standing. 21. ***[R v Big M Drug Mart Ltd (NB) ]*** Factors considered to determine the purpose ▪ The nature and larger objects of the Bill of Rights. This can be difficult, because people might have different views. Some might view the nature of the Bill of Rights and stabilizing the legal realm, and to provide for entrenched rights. Others, might view it as the foundation of mass scale social change. ▪ The language used to articulate the specific provision (right). This deserves hardly any consideration. Language is the cause of the problem in the first place, because the language is hard to understand and because it ignores the fact that the same language can be interpreted many different ways. ▪ The historical origins of the provision or the concept to be interpreted. This is not a guarantee of consensus because as is typical of South Africa, many have different views on history and the accuracy or interpretation of certain events. For example, views may be marred by either discrimination or racism. 22. ***[S v Makwanyane ]*** Para 39 ▪ In dealing with comparative law we must bear in mind that we are required to construe the South African Constitution, and not an international instrument or the constitution of some foreign country, and that this has to be done with due regard to our legal system, our history and circumstances, and the structure and language of our own Constitution. We can derive assistance from public international law and foreign case law, but we are in no way bound to follow it. 23. ***[President of the RSA v Hugo ]*** Para 74 ▪ Equality is our Constitution's focus and organizing principle. 24. ***[S v Makwanyane ]*** Para 89 ▪ Public opinion may have some relevance to the enquiry, but, in itself, it is no substitute for the duty vested in the Courts to interpret the Constitution and to uphold its provisions without fear or favor. ▪ If public opinion were to be decisive, there would be no need for constitutional adjudication. ▪ The protection of rights could then be left to Parliament, which has a mandate from the public, and is answerable to the public for the way its mandate is exercised, but this would be a return to parliamentary sovereignty, and a retreat from the new legal order established by the 1993 Constitution. **[Theme 6- Application:]** 25. ***[Christian Lawyers Association v Minister of Health ]*** A foetus is generally not a bearer of constitutional rights. However, in keeping with our common law that does not conclude all aspects of protection of potential rights of the foetus. **[❖ Categories of persons ]** **[ Citizens ]** ▪ Sections: 19 -- Political Rights (like voting) 20 -- Citizenship Rights 21(2) -- Rights of workers to form and participate in Trade Unions and Strikes. 21(3) -- Every citizen has the right to reside anywhere in the Republic 21(4) -- Rights of trade unions and employer's organizations have the right to determine their own administration, programs and activities. **[ Adult Citizens ]** ▪ Sections: 19(3) -- Every adult citizen has the right to vote and stand for public office and to hold that office if elected. **[ Employees ]** ▪ Sections: 23 -- Labor Relations Employers ▪ Sections: 23 -- Labor Relations Children ▪ Sections: 28 -- Rights of Children Arrested, Detained and Accused Persons ▪ Sections: 35 -- Rights of arrested, detained and accused persons, such as the right to a fair trial. 26. ***[Investigation Directorate Serious Economic Offences v Hyundai]*** **[(NB)]** ▪ **[Principle (NB) ]** The rights against search and seizure vest in juristic persons. ▪ Facts This case dealt with the circumstances under which judicial officers may grant a warrant of search and seizure for the purposes of investigating criminal activity. On 17 November 1999, search warrants were authorized by the first respondent, a judge of the Transvaal High Court (the High Court). This was pursuant to an application made to him in chambers by the Investigating Directorate for Serious Economic Offences and its Investigating Director, respectively the second and third respondents. The warrants empowered the second and third respondents to conduct a search and seizure operation, for purposes of a preparatory investigation, at the premises of the "Wheels of Africa Group of Companies" and at the home of the ninth applicant, Mr Muller Conrad Rautenbach. The search was carried out on 18 and 19 November 1999 and a large quantity of documents, records and data - three lorry-loads in fact - were seized. The Applicants immediately approached the High Court challenging the legal and constitutional validity of the action. 27. ***[FNB v Minister of Finance ]*** **[▪ Principle (NB) ]** The right to property may vest in juristic persons. **▪ Facts** FNB acting in the normal course of its business, leased a Volkswagen Jetta to Lauray Manufacturers CC in November 1994 and a Volkswagen Gold to Airpark Cold Halaal Stoarge CC in November 1995. In January 1996 FNB sold a Mercedes-Benz to Airpark under an instalment sale agreent with reservation of ownership until the last instalment was paid. Thus, FNB remained the owner of all three vehicles. **▪ Issue** On 16 February 1996 the Commissioner detained, and thereby established a lien, over several vehicles on Lauray's premises in terms of section 114 of the Customs and Excise Act. One of these vehicles was the Volkswagen Jetta, in order to obtain security for an amount of R3 million which comprised mostly of outstanding customs duty, penalties and payment in lieu of forfeiture arising out of an alleged fabric smuggling network. **▪ Ruling** Section 114 was held to be constitutionally invalid to the extent that it provides that goods owned by persons other than the person liable to the State for the customs debt described in the section, are subject to a lien, detention and sale. 28. ***[National Education Health & Allied Workers Union (NEHAWU) v UCT ]*** ▪ The right to fair labor practices may vest in juristic persons, notably juristic persons representing the interest of employers **(NB).** ▪ The same can be said of juristic persons representing workers. ▪ This is as per the decision in National Union of Metalworkers of SA v Vetsak Co-operative Ltd and Others **[Horizontal application:]** 29. ***[Newspapers Holdings v Suliman ]*** ♦ There are two important considerations: The extent of the invasion of the private sphere. The financial implications caused to the dutybearer. **[The Principle of Avoidance ]** 30. ***[S v Mhlungu ]*** Whenever it is possible to decide a case on the basis of law outside the Constitution (such as legislation, case law, common law or customary law) without resorting to constitutional law, then the case has to be decided with reference to that. **[Territorial Application ]** 31. **[*Kaunda v President of the RSA* ]** Principle ▪ The rights provided for in the Bill of Rights, even though they would have accrued to South African citizens, do not apply extra-territorially (outside South Africa's borders). ▪ Thus, citizens living abroad who are facing issues, must seek relief in terms of the law of the relevant foreign country. Facts (Additional Info) ▪ In this case the court ruled that whilst the South Africa citizens in Zimbabwe could not enforce the South African constitution abroad, they could request government protecting in terms of international law. ▪ This is kind of protection is otherwise achieved through diplomatic relations. **[Theme 8: The right to equality and against unfair discrimination (minorities): (Section 9 NB)]** 32. ***[Minister of Home Affairs v Fourie ]*** Equality means equal concern and respect across differences. It affirms, at the least, that difference should not be a basis for exclusion. **[Formal equality:]** 33. ***[President of the RSA v Hugo ]*** The Court stated that equal treatment on the basis of equal worth and freedom would not necessarily be achieved by insisting upon identical treatment in all circumstances. **[Forms of equality:]** **[Restitutionary/Corrective Equality ]** 34. ***[National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Another ]*** The Court observed that the achievement of equality does not allow for a mere laissez faire approach but requires that remedial or corrective measures be instituted. This is interpreted against the backdrop of transformative constitutionalism as described in the Bato Star Fishing case. It is also reflected in affirmative action which is provided for in section 9(2). 35. ***[Hoffman v South African Airways (NB) ]*** **❖ Facts** This case dealt with the constitutionality of South African Airways' practice of not employing people with HIV as cabin attendants. Mr. Hoffman (the applicant) challenged the constitutionality of the policy in the High Court. South African Airways defends its policy as promoting the safety and health of its passengers and its own competitive capacity. People living with HIV might not react positively to yellow fever vaccination, they might contract and transmit other diseases to passengers and are a bad training investment because of their limited life expectancy. The High Court upheld this defence. **❖ Amicus Curiae** The Aids Law Project was admitted as an amicus curiae in the proceedings before the Constitutional Court. It presented medical and other evidence relevant to the case as a result of which SAA conceded that its employment practice was unjustified. Legitimate commercial requirements are important but they cannot serve to disguise stereotyping and prejudice, which have no place in this era of respect for human dignity, compassion and understanding. **❖ The Decision** People living with HIV have been stigmatized and as one of the most disadvantaged groups in society deserve special protection from our law. In a unanimous decision written by Justice Ngcobo, the Constitutional Court held that South African Airways had infringed Mr. Hoffmann's constitutional right not to be unfairly discriminated against. 36. ***[Khosa and Others v Minister of Social Development ]*** ❖ Facts The applicant challenged a section from the Social Assistance Act 59 of 1992 which disqualified persons who are not South African citizens from receiving certain welfare grants. The applicants in this matter are indigent Mozambican citizens living in South Africa as permanent residents. ❖ Majority Decision Mokgoro J, writing for the majority, held that the Constitution vests the right to social security in "everyone" and that permanent residents are bearers of this right. The exclusion of permanent residents from the welfare scheme is not reasonably way to achieve the realization of the right to social security. Furthermore, the Court held that the exclusion of permanent residents from the scheme is discriminatory and unfair and infringes the right to equality. The Court read-in the words "or permanent resident" after the word "citizen" in each of the challenged sections. ❖ Minority (Dissenting) Opinion In a dissenting Judgement Ncobo J and Madala J concurring, found that section 3(c) is a reasonable limitation of the access to social security. The state has insufficient resources to provide for everyone within its borders and is entitled to prioritized its citizens. The Act has the legitimate purpose of encouraging selfsufficiency in immigrants. Furthermore, the provision of these benefits must not create an incentive to immigrate to South Africa. The minority held further that the limitation is merely temporary since it is possible for permanent resident to naturalize are five years. The minority agreed that the provisions relating to children are unconstitutional. These sections established grants for children whose parents are South African citizens but failed to provide for children who might be South African citizens but whose parents are not. **[Theme 9 -- The Right to Freedom of Religion, Belief and Opinion (Section 15 NB!)]** 37. ***[S v Lawrence (NB) ]*** With reference to the Canadian judgement in Big M Drug Mart the following aspects to this right were identified: ▪ The right to have (entertain) religious beliefs ▪ The right to declare religious beliefs openly and without fear of hindrance or reprisal ▪ The right to manifest religious beliefs by worship and practice or by teaching and dissemination 38. ***[Christian Education v Minister of Education (BIG NB!) ]*** In the present matter it is clear that what is in issue is not so much whether a general prohibition on corporal punishment in schools can be justified, but whether the impact of such a prohibition on the religious beliefs and practices of the members of the appellant can be justified under the limitations test of section 36. More precisely, the proportionality exercise has to relate to whether the failure to accommodate the appellant's religious belief and practice by means of the exemption for which the appellant asked, can be accepted as reasonable and justifiable in an open and democratic society based on human dignity, freedom and equality. 39. ***[MEC Education v Pillay]*** Para 35 ▪ The underlying problem in any open and democratic society based on human dignity, equality and freedom in which conscientious and religious freedom has to be regarded with appropriate seriousness, is how far such a democracy can and must go in allowing members of religious communities to define for themselves which laws they will obey and which not. ▪ Such a society can cohere only if all its participants accept that certain basic norms and standards are binding. ▪ Accordingly, believers cannot claim an automatic right to be exempted by their beliefs from the laws of the land. ▪ At the same time, the State should wherever reasonably possible, seek to avoid putting to believers extremely painful and intensely burdensome choices of either being true to their faith or else respectful of the law. Para 73 ▪ The Constitutional Court stressed the principle of reasonable accommodation especially in context of religion. ▪ It is stated that reasonable accommodation is the idea that: ♦ The community (State, Employer, School) must: Take positive measures; and Possibly incur additional hardships or expense... in order to allow all people to participate and enjoy all their rights equally 40. ***[Hay v B ]*** ▪ The refusal of the parents to permit a blood transfusion for their terminally ill child on religious grounds was found to be unjustifiable. 41. ***[Prince v Cape Law Society ]*** ▪ This case dealt with the prohibition of the possession of dagga, specifically as far as the prohibition also applied to Rastafarians who use dagga as part of their religious practices. ▪ Justice Sachs concludes that such a contextual approach revealed the necessity for reasonable accommodation of diversity as the Constitution was founded on tolerance and respect for the dignity of everyone. 42. ***[S v Lawrence ]*** Affirms the principle of the state treating all religions equally and with no bias for one religion over the other. However, there is no rigid division between religion and the state as there is in the United States of America. 43. ***[Organisasie vir GodsdiensteOnderrig en Demokrsie v Laerskool Randhart and Others ]*** ▪ The Court by implication attached a restricted interpretation to this right, in that the authority of governing bodies of public schools to choose the school's religious ethos was restrictively construed. ▪ The court noted that as section 7 of the Schools Act mirrored section 15(2) of the Constitution, conduct should be assessed through the applicable legislation instead of using the Constitution directly, in accordance with the principle of subsidiarity. ▪ The court decided to observe both the Gauteng Act and the Western Cape Act. The Gauteng Act regulated both religious practices (observances) and religious policy. ▪ The Court held that the inclusion of religious policy meant that the Gauteng Act extended beyond section 15(2) of the Constitution and also regulated aspects of section 15(1). ▪ However, as the applicants did not allege that the Gauteng Act was unconstitutional, this comment by the court was merely obiter Additional Considerations ▪ This section only applies to observance and not religious education. ▪ Furthermore, it may not be used for private (independent) schools. They have greater freedom in this regard, and their position is controlled by Section 29(3). ▪ In South Africa, religious observances may be conducted at State institutions provided it complies with the section and is free from direct or indirect coercion. ▪ Indirect coercion would be present if people were made to feel isolated or judged in their decision not to attend the religious observances, perhaps so much that they consider attending just to prevent the feeling of otherness. **[Section 31 and Section 15 Analyzed Together ]** 44. ***[Christian Education v Minister of Education ]*** **[▪ Para 19]** This broad approach highlights that freedom of religion includes both the right to have a belief and the right to express such belief in practice. It also brings out the fact that freedom of religion may be impaired by measures that coerce persons into acting or refraining from acting in a manner contrary to their beliefs. Just as it is difficult to postulate a firm divide between religious thought and action based on religious belief, so it is not easy to separate the individual religious conscience from the collective setting in which it is frequently expressed. Religious practice often involves interaction with fellow believers. It usually has both an individual and a collective dimension and is often articulated through activities that are traditional and structured, and frequently ritualistic and ceremonial. This aspect is underlined by article 18(1) of the International Covenant on Civil and Political Rights (ICCPR) which states: ♦ "Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching." 45. ***[Prince v President, Cape Law Society ]*** ▪ Sections 15(1) and 31(1)(a) complement one another. ▪ Section 31(1)(a) emphasizes and protects the associational nature of cultural, religious and language rights. ▪ In the context of religion, it emphasizes the protection to be given to members of communities united by religion to practice their religion. **[Theme 10: Freedom of expression: (NB! Section 16):]** **[❖ The US Approach]** It can be considered an absolutist approach. 46. ***[S v Mamabolo (E-TV and Others intervening) ]*** ▪ Ruled it is inappropriate to draw on US case law. ▪ This is because the balance that is struck between freedom of speech the protection of an individual's reputation are starkly contrasted in South Africa and the US. ▪ In the US, the First Amendment (which provides for freedom of speech) is a pre-eminent right which ranks above all other rights. ▪ In South Africa, it is but one right to be balanced with other rights, such as freedom of religion, belief and opinion, the right to dignity, the right to freedom of association, the right to vote and the right of access to information. 47. ***[De Reuck v Director of Prosecutions (CC) ]*** ▪ The right to freedom of expression as noted above is at the root of and is a prerequisite for a democratic society. Political expression is indispensable for such a society. ▪ Thus, it should be very difficult to justify a limitation of this right within the political sphere. 48. ***[Khumalo v Holomisa ]*** This decision dealt with defamation. The judgement emphasized the importance of the press in promoting democracy, and moreover that citizens can make responsible political decisions through the press carrying out its mandate. On that basis, it was reiterated that the press has a role in protecting the freedom of expression. 49. ***[Print Media SA v Minister of Home Affairs ]*** ▪ The right to freedom of expression impacts also on prior restraint by way of licensing, censorship, etc. Prior restraint constitutes a severe infraction of the right and should not readily be countenanced. 50. ***[Qwelane v South African Human Rights Commission ]*** The court rules section 10 of PEPUDA unconstitutional owing to its incompatibility with section 16 of the Constitution -- the right to freedom of expression. PEPUDA is thus found to be unconstitutional to the extent that it includes the vague "hurtful" aspect of hate speech. 51. ***[De Reuck v Director of Public Prosecutions ]*** Expression which is concerned to be somewhat removed from the core values underpinning the right to freedom of expression is more readily susceptible to limitation as for example in the case of child pornography, which is obviously removed from such core values. 52. ***[Laugh It Off Promotions v South African Breweries International BV t/a Sabmark International and Another ]*** ❖ Facts In 2001 Sabmark discovered that Laugh It Off Promotions CC was producing and selling T-Shirts that lampooned the trade mark of Sabmark stating: Africa's lusty, lively exploitation since 1652 White Black Labour Guilt No regard given worldwide. Sabmark then sought and obtained an interdict from the Cape High Court to restrain Laugh It Off from using the mark. ❖ The SCA Laugh It Off appealed the matter to the SCA. The SCA held that the mark on the T-Shirts conveys a message that Sabmark was and still is guilty of exploiting black labor and of racial discrimination, and that the mark is likely to take unfair advantage or cause detriment to the trade marks. The Court admitted the Freedom of Expression Institute (FXI) as amici curiae, that argued the trade mark must be interpreted in light of the freedom of expression, especially as in this case it amounts to parody and is thus 'fair use' which does not violate anti-dilution rules. **[❖ The Principle (NB) ]** All speech is protected and must be appropriately balanced against other rights. Laugh It Off is not selling beer, but rather they are involved in an abstract brand criticism business. Such conduct is acceptable under the Constitution, as Sabmark failed to establish the likelihood of economic harm. Whilst freedom of expression is not paramount or limitless, the onus is still on the trade mark holder to prove likelihood of economic harm as this is an appropriate balance of the rights of expression and trade mark law. **[❖ Main Consideration (NB) ]** In an open democracy, valuable expressive acts in public ought not to be trampled upon by marginal detriment or harm unrelated to the commercial value that vests in the mark itself. 53. ***[AfriForum v Economic Freedom Fighters and Others ]*** ❖ Facts This case dealt with the infamous singing of the "Kill the Boer" song which Julius Malema and his supporters sang. ❖ Foundation Speech that is merely unpopular, offensive or shocking remains protected under section 16(1). The court considered the judgment in Qwelane with reference to the balancing of rights in view of potential limitations under section 16(2). ❖ Decision The expression will constitute hate speech when it seeks to violate the rights of another person or group of persons based on group identity. In its full context, this is not what the reasonably wellinformed person would understand to be Mr. Malema's intent in singing the song. They would understand it to be serving the purpose of garnering support for the party and for its political objectives. 54. ***[Afriforum NPC v Nelson Mandela Foundation Trust and Others ]*** ❖ Facts This case dealt with the display of the old South African flag. ❖ Relevant Rulings The concept of 'communicate' denotes the 'conveyance of ideas' which requires some form of public transmission or dissemination. The prohibition extends to the expression of ideas by conduct. It targets the 'meaning behind the words, and not simply the words.' There is no question that the gratuitous display of the old flag constitutes the publication, propagation, advocacy or communication of a message, within the meaning of section 10(1) of the Equality Act. ❖ The Decision The message conveyed by gratuitous public displays of the old flag is plainly one based on race, apartheid and white supremacy. The question is whether a reasonable person in the circumstances surrounding the expression, would reasonably construe the words or conduct as demonstrating an intention to be harmful, incite harm or propagate hatred. Such displays of the old flag are calculated to be harmful, as it results in deep emotional and psychological harm that severely undermines the dignity of the targeted group (black people and people of color). It also incites harm because it is able to ignite exclusion, hostility, discrimination and violence against them. **[Theme 11: Interpretation of socio-economic rights (NB! Section 26, 27, 29, all sections related to socio-economic rights): ]** 55. ***[Soobramoney (NB) ]*** ❖ Facts This case dealt with health. The applicant was an unemployed male in the final stages of chronic renal failure and sough a court order directing a provincial hospital to provide him with ongoing dialysis and for an interdict against the provincial Minister of Health for refusing the applicant admission to the renal unit at a provincial hospital. Without the treatment, the applicant would die. Mr. Soobramoney applied to the Durban High Court claiming that he had a right to receive renal dialysis treatment from the hospital in terms of section 27(3) of the Constitution (which provides that no one may be refused emergency medical treatment) and section 11 of the Constitution (which provides for the right to life). ❖ Result The application was dismissed. ❖ Appeal The Constitutional Court explained that the right not to be refused emergency medical treatment relates to sudden catastrophe and not chronic medical conditions. Renal failure is chronic and thus, the Court decided that this was not an emergency which called for immediate remedial treatment. The Court ruled further that if the treatment were to be given to Mr. Soobramoney it would have to be given to every other patient in the same position and that this was not possible due to the fact that there were insufficient resources available at Addington Hospital to accommodate such a demand. The Court also provided that the cost of such treatment would cost so much money if given to everyone who needed it that it would drain funds from the healthcare system and thereby negatively impact others. The Court also further provided that the right to healthcare accorded to persons in terms of section 27, is qualified by the possession of sufficient resources. ❖ Conclusion The Court concluded that it had not been shown that the State's failure to provide renal dialysis facilities for all persons suffering from chronic renal failure constitutes a breach of its constitutional obligations. 56. ***[Grootboom (NB) ]*** ❖ Facts This case raises the State's obligations under section 26 of the Constitution, which gives everyone the right of access to adequate housing and section 28(1)(c) which affords children the right to shelter. A concerned group of adults and children moved onto private land from an informal settlement owing to appalling conditions. They were evicted from the private land and camped on a sports field in the area. They applied to the Cape Town High Court on an urgent basis for an order against all three spheres of government to be provided with temporary shelter or housing until they obtained permanent accommodation. This case implicates socio-economic rights. ❖ The Decision The Cape of Good Hope High court found that the children, and through them their parents, were entitled to shelter under section 28(1)(c) and ordered the national and provincial governments as well as the Cape Metropolitan Council and the Oostenberg Municipality, immediately to provide them with tents, portable latrines and a regular supply of water by way of minimal shelter. The Court stressed that the judgement should not be understood as approving any practice of land invasion to coerce a state structure into providing housing on a preferential basis to those who participate in any exercise of this kind. The Court issued a declaratory order which required the State to devise an implement a program that included measures to provide relief for those desperate people who had not been catered for in the state program applicable in the Cape Metropolitan area before ethe Accelerated Managed Land Settlement Programme had been introduced. 57. ***[TAC (NB) ]*** ❖ Facts This case deals with Health. This case involved a challenge to the limited nature of the measures introduced by the State to prevent mother-to-child transmission of HIV. The case started as an application in the High Court of Pretoria. The Applicants were several associations and members of civil society concerned with the treatment of people with HIV/AIDS and with the prevention of new infections. The Government introduced a program to deal with such infections and identified nevirapine as its drug of choice for this purpose. The program imposes restrictions on the availability of nevirapine in the public health sector. The applicants contended that these restrictions were unreasonable when measured against the Constitution. ❖ The Issues At issue here is the right given to everyone to have access to public health care services and the right of children to be afforded special protection. The second main issue also arises out of the provisions of sections 27 and 28 of the Constitution. It is whether the government is constitutionally obliged and had to be ordered forthwith to plan and implement and effect, a comprehensive and progressive program for the prevention of mother-to-child transmission throughout the country. ❖ The Decision The Court has made substantial additional funds available for the treatment of HIV, including the reduction of mother-tochild transmission. In the present case, we have identified aspects of government policy that are inconsistent with the Constitution. The decision not to make nevirapine available at hospitals and clinics other than the research and training sites is central to the entire policy. That restriction must be removed so that the government can implement a more comprehensive policy. The policy as reformulated must meet the constitutional requirement of providing reasonable measures within available resources for the progressive realization of the rights of such women and new born children. 58. ***[Mazibuko (NB) ]*** ❖ Facts This judgement deals with water. The Constitutional Court delivered a judgment in a case concerning the right of access to water in section 27 of the Constitution, which provides that everyone has the right to access "sufficient water." This case considers the lawfulness of an Operation Gcin'amanzi, a project the City of Johannesburg piloted in Phiri in early 2004 to address the severe problem of water losses and non-payment for water services in Soweto. This project involved re-laying water pipes to improve water supply and reduce water losses. ❖ The Court Held The Constitutional Court held that the obligation placed on government by section 27 is an obligation to take reasonable legislative and other measures to seek the progressive realization of the right. The question is thus one of reasonableness and the Court notes that it is implicit in the concept of 'progressive' realization that it will take time before everyone has access to sufficient water ❖ Conclusion The Court concluded, in contrast to the High Court and the Supreme Court of Appeal, that it is not appropriate for a court to give a quantified content to what constitutes "sufficient water" because this is a matter best addressed in the first place by the government. The Court affirmed the democratic value of litigation on social and economic rights. The Court noted that the applicants' case required the City to account comprehensively for the policies it has adopted and established that are reasonable.