PBL220 Updated.pdf

State Institutions Supporting Constitutional Democracy • State Institutions Supporting Constitutional Democracy/ Chapter 9 Institutions are designed to support and strengthen Constitutional Democracy. • These Institutions are: • The Public Protector • The South African Human Rights Commission • The...

State Institutions Supporting Constitutional Democracy • State Institutions Supporting Constitutional Democracy/ Chapter 9 Institutions are designed to support and strengthen Constitutional Democracy. • These Institutions are: • The Public Protector • The South African Human Rights Commission • The Commission for the Promotion and Protection of the Rights of Cultural Religious and Linguistic Communities • The Commission for Gender Equality • The Auditor General • The Electoral Commission • Chapter 9 Institutions have two primary roles: • Contributing to accountable government/Monitoring the government • Transforming South Africa into a society in which social justice prevails The Nature of Chapter 9 Institutions • These are Institutions set up to safeguard and promote democracy • Established in terms of section 181 of the Constitution: as independent and impartial bodies • They are independent non-judicial systems • However, they are also accountable to the National Assembly • These institutions primarily make findings and recommendations, and in the context of the public protector, can also issue binding remedial action. • They do not have the power to review and set aside legislation or the actions of the executive only the courts have that power (hence non-judicial). • They are important in realising the state’s duty to realise individual rights in terms of the Constitutional obligations imposed on the state. State Institutions Supporting Constitutional Democracy – South African Human Rights Commission • Established in terms of section 184 of the Constitution • Function • Promote a respect for human rights and a culture of human rights • Promote the protection, development and attainment of human rights • Monitor and assess the observance of human rights in the republic • Powers • • • • • Investigate and report on the observance of human rights Takes steps to secure appropriate redress where human rights have been violated Carry out research To educate Additional Powers are prescribed by national legislation State Institutions Supporting Constitutional Democracy – Commission for Gender Equality • Established in terms of section 187 of the Constitution • Functions • Promote respect for gender equality and the protection, development and attainment of gender equality • Additional Powers are prescribed by national legislation • Powers • • • • • • • • To monitor on issues concerning gender equality To investigate on issues concerning gender equality To research on issues concerning gender equality To educate on issues concerning gender equality To lobby on issues concerning gender equality To advise on issues concerning gender equality To report on issues concerning gender equality Additional powers are prescribed by national legislation State Institutions Supporting Constitutional Democracy Commission for the Promotion and Protection of the Rights of Cultural and Linguistic Communities • Established in terms of Section 185 of the Constitution • Functions • Promote respect for the rights of cultural, religious and linguistic communities. • Promote peace friendship, humanity, tolerance and national unity among cultural, religious and religious communities. • Powers • • • • • • • • To monitor on issues concerning the rights of cultural, religious and linguistic communities To investigate issues concerning the rights of cultural, religious and linguistic communities To research issues concerning the rights of cultural, religious and linguistic communities To educate issues concerning the rights of cultural, religious and linguistic communities To lobby issues concerning the rights of cultural, religious and linguistic communities To advise issues concerning the rights of cultural, religious and linguistic communities To report issues concerning the rights of cultural, religious and linguistic communities Additional powers are prescribed upon the Commission in terms of national legislation • Composition – Per the rules in terms of Section 186 • The number of members of the Commission and their appointment is prescribed by national legislation • The Commission’s composition must: • • Broadly represent that main, cultural, religious and linguistic communities of South Africa Broadly represent the gender composition of South Africa State Institutions Supporting Constitutional Democracy – Electoral Commission • Established in terms of section 190 of the Constitution • Functions • Manage Elections of national, provincial and municipal legislative bodies in accordance with national legislation • Ensure that those elections are free and fair • Declare those results of those elections within a period prescribed by national legislation and that is as soon as reasonably possible • Powers • Powers of the electoral commission are prescribed by national legislation • Composition • The Commission must be comprised of at least three persons. • The number of the members and their terms of office must be prescribed by national legislation State Institutions Supporting Democracy – The Public Protector • Established in terms of section 182 • Functions • To investigate conduct in any state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice. • To Report on that conduct • To take appropriate remedial action • Powers • Additional powers are prescribed by national legislation • Limits • The Public Protector cannot investigate court decisions • Tenure • In terms of section 183 the Public Protector is appointed for a non-renewable term of 7 years. State Institutions Supporting Constitutional Democracy – The Public Protector • The findings of the Public Protector • • Remember once the public protector has found that there has been maladministration, they can pursue remedial action. • Is the remedial action of the public protector binding? • Here’s what we got • • Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others [2016] ZACC 11 • The Constitutional Court found that the remedial action of the Public Protector is often (but not always) binding • This will depend on the kind of remedial action taken: • If the remedial action is phrased as: a recommendation it will most likely not be binding • If the remedial action is phrased as: an instruction it will likely be binding • When remedial action is binding compliance is not optional and the remedial action taken against those under investigation cannot be ignored without legal consequences. Institutions Supporting Constitutional Democracy – Appointments and Removals • Appointments • In terms of section 193 of the Constitution : • The President, on recommendation from the national assembly, must appoint the members of these institutions • Removals • In terms of section 194 • A member of any of these institutions may be removed from their office on the grounds of: • • • • misconduct, incapacity, incompetence or by a resolution adopted by the national assembly calling for that person’s removal from office. The Structure of Constitutional Litigation Featuring - Standing Ripeness and Mootness 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. 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 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 Right to Equality • 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 Freedom of Religion, Belief and Conscience 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 • Section 15(3) provides that this provision does not prevent legislation that recognizes • Marriages concluded under any tradition, religion or family law • Systems of personal and family law under any tradition or religion • 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 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: • Determining 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 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 • In MEC Education v Pillay • The court held that the school must take positive measures to ensure that all students can exercise their right to religion equally. • Private schools? • Greater freedoms – Section 29(3) Freedom of Expression Freedom of Expression • 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 • The right to freedom of the press is not just a right to which the press is a rights bearer under, but through performing this right, they have an obligation under this section. • 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] Socio Economic Rights Socio-economic Rights • Socio-economic rights are not easy to classify and are hotly contested • However, in terms of section 7(2) of the Constitution, the state incurs a series of positive and negative obligations that requires the state to: • • • • Respect Protect Promote Fulfil The rights in the Bill of Rights • Socio economic rights are not only a matter of legal concern, but often are the subject of various political debates. • A consequence of this fact has led to the following criticisms on the very existence of socio-economic rights • This discussion extend beyond the functions of the court who can only decide on the matters before them. • Due to the fact that the court finds itself considering the extent and limits of the state’s obligations under this right, this debate is a political as well as a legal debate. • Therefore, to decide on what the bare minimums and the maximums on the state’s obligations toward socio-economic rights in section 27 is a hard task to leave to the discretion of courts. Socio-economic Rights • However, there is value in socio-economic rights litigation • In Mazibuko and Others v City of Johannesburg and Others • Concerned the socio-economic right of access to water • The City of Johannesburg planned to introduce a new pre-paid water system to save water in the township of Phiri in Soweto – they had to replace pipes and residents were made to choose between a yard tap or a pre-paid water system and if they chose neither they would be without water. • Section 27(1) of the Constitution guarantees access to ‘sufficient water’ • The Court held that the government, as a part of its duties in section 7(2), has to devise and implement a programme that includes measures to provide individuals with relief for vulnerable people as set out in a declaratory order. • In Minister of Health and Others v Treatment Action Campaign • Concerned the socio-economic right of access to health care services • In this instance the Minister of Health only permitted the prescription and use of nevirapine, a drug proven to prevent mother to child transfer of HIV, at designated research clinics and facilities • The Court held that this policy was inconsistent with the Constitution and ordered that this restriction be removed and must come up with a plan that was more coherent in guaranteeing access to health care. • In Soobramoney v Minister of Health (Kwa-Zulu Natal) • Concerns the socio-economic right to healthcare • Mr Soobramoney had a chronic illness which required that he be on dialysis. However, the state refused to offer him the service as they lacked the resources. • The court held that since his condition was not an emergency he could not rely on the right to emergency healthcare. Socio-economic Rights • Socio-economic rights are the most important part in the grander scheme of South Africa’s Constitutional regime and are justiciable rights contained in the Bill of Rights. • Therefore, in line with constitutional imperatives, it is acceptable for courts to assess the progressive realisation of socio-economic rights. • The realisation of these rights is important for so many reasons as they are interrelated with other rights within the Constitution: • • • • Dignity – Section 10 Environment – Section 24 Life – Section 11 Equality – Section 9 Enforcement Enforcement • Section 38 of the Constitution provides for the enforcement of rights and states: • Anyone that has standing may approach a competent court and the court may grant appropriate relief, including a declaration of rights. • Competent court • This refers to the fact that the court that is approached must have the requisite jurisdiction to decide on the matter and grant the relief sought after. • As certain courts of a higher status have the inherent jurisdiction to address particular matters and thus the relief sought is contingent on the authority of the court to grant that relief • NB! The High Court, Supreme Court of Appeal and the Constitutional Court, have the authority to make orders concerning Constitutional invalidity of a parliamentary or provincial Bill/Act • HOWEVER, only the Constitutional court may confirm the invalidity made by the High Court or Supreme Court of Appeal in order for an order of Constitutional invalidity to have force. • NB! Building on the notion of a competent court, the Constitution [through amendments made in 2012] has offered additional mechanisms • Section 167(6) of the Constitution provides that National legislation, or the rules of the Constitution Court must allow a person, when it is in the interests of justice and with leave of the court to bring a matter directly to the Constitutional court [Direct Access]; or appeal directly to the Constitutional court from any other Court [Direct Appeal]. • The former takes place outside the context of appeals, and the other takes place in the context of appeals. Enforcement • A Confirmation of Constitutional invalidity is a form of appropriate relief. • Usually the last resort, and courts try as far as possible to avoid striking entire provisions/acts. They do this through • Severance and Reading in • Section 172(1) • Provides that a law that is declared inconsistent with the constitution is invalid to the extent of that inconsistency • This provision allows for severance, which enables the court to remove those parts of a law that are inconsistent with the constitution to the extent that it is grammatically possible and still gives effect to the objects of the legislation. • Commencement of an order- Courts are thus empowered to make any order that is just and equitable including an order limiting the retrospective effect [applies to the future only] of the declaration of invalidity and the order suspending the declaration of invalidity for any period and any conditions to allow the competent authority to correct the defect [Fourie case]. • Reading-in: • This is where the court adds words to a certain provision to keep to make it constitutionally permissible as opposed to striking down the provision in its entirety. • Reading-in and Severance are preferable approaches as opposed to striking down a provision entirely because to do this would interfere with the separation of powers. • In terms of section 172(2)(a) – • • the High Court, the Supreme Court of Appeal (or a court of a similar status) can make an order of Constitutional invalidity. However, such an order lacks force until the Constitutional Court has confirmed that invalidity. • Pay attention to the overlap that this work has with the substance of the work we covered under the topic of Constitutional Jurisdiction.