PBL220 in a Nutshell 2 – Electric Boogaloo PDF

PBL220 in a Nutshell 2 – Electric Boogaloo Banathi Nkehli Standing, Ripeness and Mootness • Standing – WHO is coming to court • Refers to whether or not an individual is the appropriate person (institution) to bring the matter to court for adjudication. • Standing is regulated under section 38 of...

PBL220 in a Nutshell 2 – Electric Boogaloo Banathi Nkehli Standing, Ripeness and Mootness • Standing – WHO is coming to court • Refers to whether or not an individual is the appropriate person (institution) to bring the matter to court for adjudication. • Standing is regulated under section 38 of the Constitution - where a right in the Bill of Rights has been infringed (or is faced with threatened infringement) a person has the right to approach a court to grant the appropriate relief if they have sufficient interest in the matter. • A right in the bill of rights must be infringed (or is threatened to be infringed) • The person who approaches the court must demonstrate whether they are: • • • • • Acting in their own interest Acting on behalf of someone who cannot act on their own behalf Acting as a member or in the interest of a group or class of persons (class actions) Acting in the public interest (Sustaining the wild coast v Shell) Act as an association acting in the interest of its members (Political parties usually) • Do NOT confuse with the Amicus Curiae • They are friends of the court • Not a party to the proceedings • Assists the court in furnishing information or arguments Standing, Ripeness and Mootness • Ripeness – WHEN are you coming to court • Ripeness is focused on the ‘timing’ of a matter when it is brought to court. • Cases have to be ‘ripe’ enough to sit before a court for adjudication, anytime before that the case is ‘green’ or ‘unripe’. Think of it like a fruit. You wouldn’t eat a green pineapple, you only eat it when it is orange, and only then do we say it is ‘ripe.’ • What does a case that is ripe looks like • There must be an actual dispute – meaning the matter that is brought before court cannot be in the abstract or hypothetical, it must feature individuals at loggerheads with one another. • Where the matter is dealing with members of the same organisation, all internal remedies must be exhausted by the time they approach the court. • A case that is ‘green’ or brought to a court prematurely has not fulfilled the above requirements. Standing, Ripeness and Mootness • Mootness – Is there a POINT in bringing the matter to court • This refers to the redundancy in bringing the matter to court. • If a problem could be solved without the need of the court to rule on the matter it is moot • If no substantive change can come from the court deciding on a matter, it is moot. In other words, would there be a practical effect of the court coming to a decision? If not, the matter is moot. • If, for whatever reason the matter becomes redundant then a matter can be considered moot. Interpretation • There are different approaches to interpretation that exist • The Purposive interpretation which requires the interpreter to: • Promote the values that underlie an open and democratic society based on human dignity, equality and freedom. • In S v Makwanyane – on interpretation the court found that rights in the bill of rights must be construed in such a way that their purpose is fulfilled. Therefore, the rights must be viewed in light of what fulfilling the purpose is to promote the values of an open and democratic society based on: human rights, equality and freedom. • You’d have to take into account • The larger objects of the bill • Public opinion • The language of the bill • The opinion of the public/boni mores can play a role in fulfilling this role, as the court held in S v Makwanyane, but the interpretation still vest in the courts. Application • This area of the work is concerned with the ‘applicability of rights • In other words we are asking ourselves • • • • To what extent does a certain right apply under particular circumstances To what extent doe this right apply to a class of persons Which people are excluded under a right Which people are included under a right • Understand that the constitution recognizes more rights outside of the Bill of Rights as well • Distinguish between horizontal application of the Bill of Rights and Vertical Application • Horizontal – where parties to a dispute are enforcing rights in the bill of rights against one another, usually private parties but sometimes the state • Vertical – this is the state exercising its duty to uphold rights in the bill of rights Application • Determine who is the rights bearer under this provision • Section 19 states that – every citizen is free to make political choices which includes the right to: • Form a political party • Participate in the activities of the party and recruit members for the party • To campaign for the party or cause • Who does the above right apply to? • Citizens – Adult Citizens, non-adult citizens, employed citizens, unemployed citizens • Section 23 states that – everyone has the right to fair labour practices • Who does the above apply to? • Citizen employees/employers, Non-citizen employees/employers, • What about those employees engaged in illegal work and those employers engaged in illegal work? • It does, is there anything in the provision that suggests it doesn’t • Read: Kylie case The Structure of Constitutional Litigation • This is some basic knowledge that is heavily reduced at this level. The stages are merely a broad overview and the contents of what is discussed are not fully representative of what is procedural and what is substantive. • You need to make be able to distinguish between two things primarily • Formal Law • Formal law refers to those procedural aspects that must be complied with, to ensure the enforcement of rights. – How we do things • Substantive Law • The Substantive law refers to the content and scope of the rights that we seek to enforce - what are my entitlements and how far do they extend The Structure of Constitutional Litigation • There are three stages • Firstly – the Procedural Stage • This lines out who can go to court • It sets out who is bound by the duties set out in a particular right • This is still the formal law so this would be determining jurisdiction, standing etc • Secondly – the Substantive Stage • This sets out the scope and content of the right • This is where the determination of whether the law or conduct infringed upon that right occurs • Finally – The Remedy Stage • Where there is an unjustifiable infringement of the right concerned can the court remedy this infringement – the section 36 limitation analysis occurs here whether the limitation is justifiable in an open and democratic society The Right to Equality • There are different types of Equality • Formal Equality • • Measures provides for the same standard to be applied to everyone Therefore, for uniform treatment for everyone in the same circumstances • Restitutionary or Corrective Equality • These are those measures that can be described as equity based and are usually done in the form affirmative action measures • Substantive Equality • This requires that different standards be applied to different categories of persons (finding themselves in different positions) precisely in order to achieve equality • It is also important to distinguish between the types of discrimination • Direct discrimination • occurs when a measure expressly differentiates against categories of persons in a way that is detrimental to a particular category • Indirect discrimination • the measure or conduct does not discriminate openly. The measure appears to be neutral, but the effect is to discriminate, that is, to treat a particular category in a way that is detrimental compared to other categories. • Section 9(1), 9(2), 9(3) of the constitution are of paramount importance • Section 9(1) is the equality clause and establishes a state of formal equality in the Constitution. • Section 9(2) establishes that equality to include the full and equal enjoyment of rights and promote measures to ensure such, it promotes substantive equality • Section 9(3) and 9(4) is the anti-discrimination clause which states that no one may be ‘unfairly discriminated’ against on a variety of grounds The Right to Equalitty • The test for Equality • Harksen v Lane – the test for unfair discrimination • A two-stage analysis is applied: • Firstly (Discrimination stage): • Has anyone been discriminated against on the grounds in section 9(3) NB! Differentiation: where the state distinguishes between people for a legitimate government purpose does not mean you were NOT discriminated against, but it does not mean the discrimination is unfair. However, if differentiation measure was on a ground listed in section 9 (3) discrimination is established/ if not based on section 9 (3) analogous ground. • Secondly (Unfairness stage): • once the differentiation is found to be discrimination the next question is whether it is unfair • Differentiation on a listed ground sec 9 (5) presumed unfair burden of rebuttal on respondent • Where it is on a non-listed ground = burden is on the complainant to establish unfairness The Right to Equality • What is meant by not on a listed ground • Things that aren’t listed are things like • Citizenship • Khosa v Minister of Social Development • The burden would be on Mr Khosa to prove that the discrimination on the basis of citizenship is unfair Freedom of religion, belief and opinion • Section 15 of the Constitution Guarantees that • Everyone has the right to freedom of religion, conscience, thought, belief and opinion. • Section 15 is clear in that it does not set out that South Africa is a secular state • Section 15(2) provides that religious observances may be conducted at state or state-aided institutions provided • Those observances follow the rules made by the appropriate public authorities • They are conducted on an equitable bases • Attendance is free and voluntary • Some important things about this right • You cannot be the only member of a religion to enforce this right • You cannot invoke this right under the premise that such a right must be absolutely applied [The notion of ‘reasonable accommodation] • This right is interrelated with other rights in the Constitution • Freedom of expression Freedom of religion, belief and Opinion • The Notion of Reasonable Accommodation • Refers to: Instances where the community, whether it is the State, an employer or a 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. • What this allows for, are situations where: • claims made by members of religious groups that diverge from the Bill of Rights’ obligations and are in some way inconsistent with the other rights may be accepted. • In Christian Education v Minister of Education, the court held that the notion of reasonable accommodation entails the court to: • Determine 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. • The proportionality exercise must relate to whether the failure to accommodate the a religious belief or practice by means of the exemption that is requested, can be accepted as reasonable and justifiable in an open and democratic society based on human dignity, freedom and equality • Therefore, the court held that the prohibition on corporal punishment did not infringe on the right to freedom of religion, belief and opinion and that the limitation was premised on protecting other interests in the bill of rights Freedom of Expression and Other Freedoms • Section 16(1) - The Constitutional Right to Freedom of expression guarantees: • • • • Freedom of the press and other media Freedom to receive or impart information or ideas Freedom of artistic creativity Academic freedom and of scientific research • NB! See: Khumalo v Holomisa • Section 16(2) - This guarantee is not extended to: • Propaganda for war • Incitement of imminent violence • Advocacy of hatred based on race, ethnicity gender or religion; and that which constitutes incitement to cause harm • Pay attention to the grounds on which advocacy for hatred is limited to in terms of the Constitution Freedom of Expression • The Right to freedom of expression is not only dealt with in section 16 of the Constitution, but in section 58 as well • Section 58(1) of the Constitution grants absolute privilege to members of parliament which excludes them from incurring any criminal or civil liability for anything they may say while in the national assembly or during parliamentary proceedings • In other words you can say defamatory things • You may advocate for hatred on one of the prohibited grounds [subject to the rules of parliament] We’re rooting for you By simply existing you make the world a better place Love: Banathi, Doctor Radebe, Ms Nel, Zak, Christiaan and Neville