FUR2601/1/2017–2021 South African Fundamental Rights Study Guide PDF

© 2016 University of South Africa All rights reserved Printed and published by the University of South Africa, Muckleneuk, Pretoria FUR2601/1/2017–2021 70403090 Shutterstock.com images used Editor and Styler MNB_Style CONTENTS INTRODUCTION (v) Study unit 1: Structure of the Bill of Rights 1 Study unit 2: Application 7 Study unit 3: Locus standi (standing) 24 Study unit 4: Jurisdiction in Bill of Rights litigation 31 Study unit 5: Interpretation of the Bill of Rights 39 Study unit 6: Limitation of rights 47 Study unit 7: Remedies 56 Study unit 8: Equality 67 Study unit 9: Human dignity 78 Study unit 10: Socio-economic rights 87 FUR2601/1/2017–2021 (iii) INTRODUCTION 1 THE PURPOSE OF THE MODULE ON FUNDAMENTAL RIGHTS This module deals with the Bill of Rights (ch 2) in the 1996 South African Constitution and aims to do the following: Provide you with a sound basic knowledge and understanding of fundamental rights under the South African Constitution. Enable you to explain the concepts and principles governing fundamental rights litigation. Enable you to identify the issues involved in practical fundamental rights problems and ap- ply your knowledge to such problems. Enable you to argue about fundamental rights issues in an informed and critical manner. This module is designed to dovetail with the Constitutional Law (CSL2601), Interpretation of Statutes (IOS2601) and Administrative Law (ADL2601) modules. This module provides you with a general introduction to the concept of fundamental rights and explains the role and place of these rights in the constitutional system as a whole. In this module you will be introduced to the following: the way in which fundamental rights are protected and enforced in the South African Constitution the steps and procedures that must be followed to achieve the aforementioned point the principles governing the application of the provisions contained in chapter two (2) of the Constitution which is known as the Bill of Rights the way in which these principles are applied in practical situations where fundamental rights issues arise When you have passed this module, you should: have a sound basic knowledge and understanding of fundamental rights in terms of the South African Constitution and be able to explain the concepts, principles and processes in respect of fundamental rights be able to identify fundamental rights problems know and be able to explain the principles governing fundamental rights litigation be able to apply your knowledge to practical problems dealing with fundamental rights issues We make use of a prescribed textbook which is described below to give you an in-depth understanding of this module. 2 THE PRESCRIBED TEXTBOOK 2.1 Name and authors of the textbook The latest edition of The Bill of Rights Handbook by Iain Currie and Johan de Waal (Juta). The textbook may seem bulky, but remember that you do not need to study all the chapters. Please refer to the tutorial letters, starting with Tutorial Letter 101, for updated details on the textbook. FUR2601/1 (v) INTRODUCTION 2.2 Prescribed chapters The prescribed chapters in the textbook, The Bill of Rights Handbook by Iain Currie and Johan de Waal (Juta),mentioned above are chapters 1 to 10 and chapter 26. Study these chapters carefully and make summaries of them. 2.3 What do I not have to study? You do not have to study any of the other chapters on specific rights ( privacy and freedom of expression). However, this does not mean that you can ignore the other rights. It is quite conceivable that one or more of these rights may feature in a problem-type question in the examination. You will then be required to identify the right in question and say something about it. It is therefore essential to familiarise yourself with the actual provisions of the Bill of Rights. As a matter of fact, the entire course revolves round the Bill of Rights which, as you know, is chapter 2 of the Constitution of the Republic of South Africa. 3 THE STUDY GUIDE The study guide is only a guide; therefore, you will not be able to master the module if you study only the contents of the study guide. You need to study the guide in conjunction with the prescribed textbook. Since this is a blended module, you also have to log on to myUnisa once a week to check for updates and use any of the suggested myUnisa tools the lecturer requires you to use. In order to be successful in your studies you have to use the study guide as a starting point to guide you through your studies. Refer to the tutorial letters and purchase the required handbook. All these sources must be used to guide you through the module. The study guide comprises a compilation of the various study units. The structure pf each study unit will be described below so you can expect a similar pattern in each study unit. 3.1 Structure of the study units: The study units follow a basic structure What you should know before attempting this study unit: This section contains work/concepts you should be familiar with before attempting the next study unit. If you are uncertain about any of the concepts in this section, DO NOT PROCEED WITH THE NEW STUDY UNIT before you have mastered the assumed knowledge. The reason is that the units follow sequentially and need to strengthen your knowledge base as you become more engaged in the study material. You need to understand the theoretical knowledge which is embedded in specific contexts. You are required to read extensively to gain the necessary knowledge, develop skills, inculcate attitudes and demonstrate competencies as shown in the study guide. OVERVIEW In this part of the study unit you will find a brief overview of the core principles and concepts which will be covered in that particular unit. We have attempted to cross-reference the study units so that you can integrate your study of the module. OUTCOMES The outcomes as end products of learning tell you what you are supposed to know and be able to do after you have worked your way through the prescribed material of a study unit. The outcomes are designed to guide you through the work in a much more focused and methodical way. It also informs you of the areas you need to concentrate on. You can assess how much you have absorbed by testing how well you are able to adhere to the listed outcomes. The outcomes may require you to explain, discuss, list, argue, comment on or analyse a point involving key principles (vi) INTRODUCTION or concepts of fundamental rights. However, the acquisition of knowledge is of no real use unless you know what to do with it. By this we mean that you must understand and learn to use the knowledge that you acquire in this module in your everyday life. It is only by doing this that the study of fundamental rights becomes meaningful. PRESCRIBED STUDY MATERIAL A list of the prescribed material on the specific study unit is included at the beginning of each study unit. You are required to know case law to the extent to which it is discussed in the textbook. It is important that you read the cases carefully, since you will be required to read and analyse case law throughout your academic career. This skill, which is very important for every lawyer, can only be acquired through practice. RELEVANT SECTIONS OF THE CONSTITUTION The sections of the 1996 Constitution that apply to a specific study unit are provided to assist you with your studies. KEY CONCEPTS These sections introduce the key concepts you will encounter while studying a specific study unit. We include a brief definition of each concept and an explanation of what the concept entails, because a proper understanding of concepts of fundamental rights is very important. CONTENT In this part of the study unit, reference is made to the relevant provisions of the 1996 Constitution and to every legislation, case law and academic writing that will contribute to your understanding of the module. In essence, this part of the study unit sets out the theoretical knowledge and the practical application of the content of fundamental rights. It is up to you to actively internalise this knowledge in order to obtain a proper understanding of fundamental rights. You do so by becoming engaged in the study material and making concise summaries. ACTIVITY Once you have studied all the concepts and principles in a particular study unit, you will be required to apply them to actual fundamental rights problems that are being encountered in everyday life. It is essential that you complete the activities in order to understand the principles, because the activities require you to apply the principles to the problem. Not only will these activities enable you to concentrate on the most important aspects of the work, but they will also give you an indication of the type of questions you can expect in the examination. Once you have completed the activities you should evaluate your answers by looking at the feedback. FEEDBACK ON THE ACTIVITY Each set of activities is followed by comments. The comments on the activities include guidelines on the expected approach to the questions with case and textbook references. The feedback will help you assess the progress you have made with each study unit or particular aspect of fundamental rights. Please bear in mind that our answers are just suggestions on how to approach fundamental rights questions. Do not despair if you disagree with our conclusions – we certainly do not have a monopoly on the interpretation of the Constitution. FUR2601/1 (vii) INTRODUCTION Most important is that you are able to do the following: Discuss the relevant provisions of the Bill of Rights and the way in which they have been inter- preted by the courts and other authorities in a systematic manner. Apply this knowledge to the facts of the problem. In other words, we are more interested in the way you arrive at a conclusion than in the actual conclusion itself. The process (argument) you follow is more important than the product (conclusion). If you can answer all the questions in this study guide, you should also be able to answer the questions in the examination. Remember that the examination paper will include various factual and legal problems; and you should be able to adapt your knowledge to deal with them. You need to know the content that is covered so that you have a firm basis from which you can answer any questions that require you to apply your knowledge, such as in a case scenario. CONCLUSION The conclusion section of every study unit contains a brief summary of the essence of the study unit. It also briefly mentions what you can expect in the next study unit. This concludes our exposition of the outline of a study unit which is designed to scaffold your learning by providing a framework of supported guidance. We will now proceed to the content of the study guide. 4 INTRODUCTION TO FUNDAMENTAL RIGHTS 4.1 The idea of human rights The term “human rights” has become one of the buzzwords of our age and it is used – and abused – in a variety of contexts. Whenever something controversial is done, someone is bound to complain about an invasion of his or her human rights (which may also be called fundamental or constitutional rights). 4.2 What are human rights? But what are human rights, and why has this concept become so central to the way we think about law, justice and politics? According to the idea of fundamental rights, each human being has certain inalienable rights which may not be encroached on by the state or its institutions, except to the extent that such encroachment is authorised by law. A number of implications flow from this statement: A human right accrues to someone simply because he or she is human; it is not something he or she deserves or works for. A right is not the same as a privilege; it is more like an entitlement, which is capable of being enforced. With very few exceptions, rights are normally not absolute and have to be weighed against other rights and the public interest. The authority to encroach on rights is in itself subject to limitations; and if such limitations are exceeded, the individual is entitled to demand that the state reinstate these rights. 4.3 Human rights are universal Nowadays, human rights are regarded as universal: the constitutions and laws of virtually every state in the world contain measures for the protection of human rights, most notably in the form of a bill of rights embedded in a country's municipal (or domestic) constitution. Among these rights are the following: (viii) INTRODUCTION The right to life. The right to equality before the law. The right to a fair trial. A whole range of other rights can lay claim to almost universal acceptance (although practical adherence to these rights is a different matter altogether). At the same time, the interpretation and application of human rights norms will inevitably vary from one generation to the next and from one culture to another. The international dimension will be discussed next. 4.4 International dimension In addition to their universal character, the international dimension of human rights has also been stressed. The protection of human rights is no longer seen as something falling squarely within the domestic jurisdiction of individual states, but has become a matter of “'international concern' and a proper subject for diplomacy, international institutions, and international law” (Henkin: 17). This development is reflected in the evolution of a vast body of international human rights norms, most notably those contained in the following: United Nations Universal Declaration of Human Rights the International Covenant on Civil and Political Rights the International Covenant on Economic, Social and Cultural Rights (these three documents are collectively known as the “international bill of rights”) Regional blocks have also adopted their human rights charters, for instance: European Community's European Convention on Human Rights Organisation of American States' Declaration of the Rights and Duties of Man Organisation of African Unity's Charter on Human and People's Rights (better known as the Banjul Charter) A bill of rights, then, is a document which sets out the rights of the individual vis-à-vis the state (and, sometimes, also vis-à-vis other individuals and corporations) and which may also provide for the enforcement of such rights. A bill of rights may have either international or domestic application; in the latter case, it is most often part of the constitution of a country. The focus of this course is the South African Bill of Rights, which is contained in chapter 2 of the Constitution of the Republic of South Africa, 1996. Study unit one will lay the foundation in that it examines the structure of the Bill of rights. FUR2601/1 (ix) Study unit 1 Structure of the Bill of Rights Studyunit1 OVERVIEW Bill of Rights litigation comprises the following three distinct stages: 1. the procedural stage 2. the substantive stage in which issues of substance are considered. 3. the remedies stage (in which the court will determine the appropriate remedy if a right has been infringed.) Every court hearing of a Bill of Rights case will be concerned with the procedural issues, such as application of the Bill of Rights and justiciability of the issues to be decided, including the standing of the applicant and the jurisdiction of the court to grant the relief claimed by the applicant. The substantive stage of the litigation involves interpreting the provisions of the Bill of Rights and establishing whether a right has been infringed. The court must then consider whether the infringement is a justifiable limitation of the right. If the court finds that the infringement of the right is not a justifiable limitation of the right, it will move on to the remedies stage to consider an appropriate remedy to deal with the unconstitutional infringement of the right. At each stage of the litigation, the court must consider whether the onus of proof rests with the applicant or the respondent. FUR2601/1 1 STUDY UNIT 1: STRUCTURE OF THE BILL OF RIGHTS OUTCOMES Once you have worked through this study unit, you should be able to: Explain the different stages of fundamental rights litigation, that is, the procedural stage, the substantive stage and the remedies stage. Explain where the burden of proof lies in each of these stages (in other words, who bear the onus to prove each of the different issues in each stage). Apply different stages to a factual situation. PRESCRIBED MATERIAL This study unit deals with CHAPTER 2 in The Bill of Rights Handbook, which explains the different stages of fundamental rights litigation. KEY CONCEPTS The following are some of the key concepts used in this study unit. It is very important that you understand these concepts clearly: JUSTICIABILITY This means that the applicant must have standing to seek a remedy. It may also mean that an issue is moot or academic and therefore cannot be decided on. Finally, an issue may not be justiciable because it is not yet ripe for a decision by a court. Students often experience difficulty with this concept, which has a specific meaning in the legal sphere. First of all, do not confuse justiciable (pronounced just-ish-able) with justifiable (pronounced justi-fy-able). Justiciable means “enforceable in a court of law”. Justifiable means “legally (or morally) capable of being justified”. JURISDICTION One must be in the correct forum to challenge an alleged violation of a right, since not all courts have jurisdiction in constitutional matters. The courts with jurisdiction to deal with constitutional matters are the High Court, the Supreme Court of Appeal and the Constitutional Court. SUBSTANTIVE STAGE During the substantive stage of the fundamental rights litigation process, the court deals with the substance of the applicant's allegation that a right has been infringed by law or by the conduct of another party. The court will assess the merits of the allegation by interpreting the relevant provisions of the Constitution and, particularly, the Bill of Rights. ONUS The court has to determine who has the task or burden of proving each of the issues in each of the three distinct stages. The three stages of fundamental rights litigation will be discussed next. 1.1 THREE STAGES OF FUNDAMENTAL RIGHTS LITIGATION Fundamental rights litigation takes place in three distinct stages, namely the procedural stage, the substantive stage and the remedies stage. 2 Study unit 1: Structure of the Bill of Rights See the figure below. Each of these three stages of fundamental rights litigation will be examined in detail, starting off with the procedural stage. STAGE 1: PROCEDURAL STAGE In this stage, the courts are concerned with (i) the application of the Bill of Rights to the subject matter of the litigation, (ii) the justiciability of the issue to be decided and the standing of the applicant, and (iii) the jurisdiction of the court to grant the relief claimed by the applicant. Each of these statements will be elaborated on next. Notice how focused questions are stated and answered in the text. (i) APPLICATION Here, it needs to be established whether the Bill of Rights applies to the dispute between the parties. It must be established whether the applicant is protected by the Bill of Rights and whether the respondent is bound to act in accordance with the Bill of Rights. The applicant must determine which right in the Constitution protects him or her in the particular circumstances of the case. Section 8 of the Constitution will determine whether the respondent is bound in the circumstances to act in accordance with the Constitution. How does the Bill of Rights apply to the dispute? It must be determined whether the Bill of Rights applies directly or indirectly. The general rule followed by the courts is that the Bill of Rights must first be applied indirectly before direct application is considered. FUR2601/1 3 STUDY UNIT 1: STRUCTURE OF THE BILL OF RIGHTS (ii) JUSTICIABILITY The issues must be ripe for decision by the court and must not be moot or academic. Does the applicant in the matter have standing in respect of the particular relief sought? The applicant must be the appropriate person to present the matter to the court for adjudication. (iii) JURISDICTION Does the court have jurisdiction to grant the relief? Only the High Court, the Supreme Court of Appeal and the Constitutional Court have jurisdiction to adjudicate constitutional matters. Once the issues in this stage have been established, the court will move on to the substantive stage. Refer to figure 1.1 in which the procedural stage is set out. FIGURE 1.1 Setting out the procedural stages STAGE 2: SUBSTANTIVE STAGE During this stage, the court must establish whether a right in the Bill of Rights has been violated after considering all the facts in the case. If the court does find that a right in the Bill of Rights has been violated, it must then consider whether that violation is a justifiable limitation of a right. The substantive questions are therefore as follows: (i) INTERPRETATION Has the law or the conduct of the respondent infringed a fundamental right of the applicant? This stage focuses on the actual infringement of a right. It must be determined whether the law or conduct in question violates the right, or rights, of the applicant. The courts will determine this on interpreting the provisions of the Constitution in general and the Bill of Rights in particular. If the court concludes that no violation has taken place, the application will be dismissed. If, however, the infringement of a fundamental right has taken place, the court will go on to the next question. 4 Study unit 1: Structure of the Bill of Rights (ii) LIMITATION Is the infringement a justifiable limitation of the right in question according to the criteria set out in section 36? If this question is answered affirmatively, then the respondent's conduct cannot be regarded as unconstitutional and the application must be dismissed. If the respondent's conduct does not satisfy the test in section 36, then it will be deemed unconstitutional. The court will move on to the next stage. Look at figure 1.2 which depicts the substantive stage. FIGURE 1.2 Setting out the substantive stage STAGE 3: REMEDY Finally, if the court finds that a violation of a right is not a justifiable limitation, it will have to consider an appropriate remedy to deal with the unconstitutional infringement of a fundamental right. ONUS The court will also have to determine who has the onus (task or the burden) of proving each of the issues in each of the three distinct stages. This refers to onus. (i) ONUS – PROCEDURAL STAGE In the procedural stage, the onus is on the applicant to prove that all the requirements have been satisfied. (ii) ONUS – SUBSTANTIVE STAGE In the substantive stage, the onus is first on the applicant, who must show that an infringement of a right has taken place. The onus then shifts to the respondent who must show that the infringement is a justifiable limitation of the right in terms of section 36. FUR2601/1 5 STUDY UNIT 1: STRUCTURE OF THE BILL OF RIGHTS (iii) ONUS – REMEDY STAGE With regard to the question of onus when deciding on the appropriate remedy, it depends on whether the Bill of Rights is applied directly or indirectly. When the Bill of Rights is applied indirectly, the ordinary legal remedy is granted and the ordinary legal rules apply in respect of the burden of proof. When the Bill of Rights is applied directly, the provision that is found to be inconsistent with the Constitution will be declared invalid in terms of the power given to the court by section 172 of the Constitution. The court is empowered to limit or suspend the effects of the declaration of invalidity. The party wishing to make any variations to this form of relief will be called on to justify its request. ACTIVITY 1.1 The University of Gauteng requires all prospective law students to pass a language proficiency test in either Afrikaans or English, the languages of instruction. Ms X, whose home language is Northern Sotho, applied to enrol for an LLB degree, but was turned down. She feels that the University's language policy is discriminatory and therefore unconstitutional. Advise her about the following: (A) The procedural questions a court will have to consider. (B) The substantive issues raised by her case. (C) Possible remedies. (D) Who will bear the onus of proof at different stages of the litigation? (10) Write down your answer to the activity before reading the feedback below and evaluating your answer. FEEDBACK ON ACTIVITY The answer entails a discussion of the theory as stated above, including the specific application to the facts at hand. In this case: Ms X is protected in terms of section 9(1) and section 9(3) of the Constitution, which provides the right to equal treatment and the prohibition against unfair discrimina- tion on the grounds of language. She is also protected in terms of section 30 of the Constitution, which allows per- sons to enjoy their culture, practise their religion and use of their own language. The respondent, the University of Gauteng, is bound by the Bill of Rights in terms of section 8(2) of the Constitution. This section provides that natural and juristic per- sons are bound by the Bill of Rights, if applicable, when the nature of the right and the nature of the duty imposed by the right are taken into account. 1.2 CONCLUSION Study unit one focused on the three distinct stages of fundamental rights litigation to enforce the Bill of Rights. In the next study unit, we examine the first question in the procedural stage of fundamental rights analysis, namely whether the Bill of Rights applies to a particular dispute and how it applies. 6 Study unit 2 Application Studyunit2 OVERVIEW In the previous study unit, you were introduced to the various stages of fundamental rights litigation. This study unit focuses in much more detail on the first question in the procedural stage, namely whether the Bill of Rights applies to a particular issue. NOTE: The merits of the issue (Who is right and who is wrong?) do not enter into the question at all. When dealing with application, we are interested only in the question whether the Bill of Rights has any relevance to the issue. You will probably recall that the application inquiry comprises the following questions: Does the Bill of Rights apply in the dispute between the parties? This involves three questions: (a) Is the applicant entitled to the rights in the Bill of Rights? (b) Is the respondent bound by the Bill of Rights? (c) How does the Bill of Rights apply to the dispute? Does it apply directly or indirectly? In this study unit, we explore these questions in greater depth. FUR2601/1 7 STUDY UNIT 2: APPLICATION OUTCOMES Once you have worked through this study unit, you should be able to do the following: Discuss the question: “Who is entitled to the rights in the Bill of Rights?” Distinguish between the direct and indirect application of the Bill of Rights and dis- cuss the significance of the distinction. Analyse section 8(1) and section 8(2) of the 1996 Constitution, which provide for di- rect vertical and direct horizontal application. Discuss the indirect application of the Bill of Rights to (a) legislation and (b) the common law. Explore the question: “When should the Bill of Rights be applied directly or indi- rectly to (a) legislation and (b) the common law?” Apply your knowledge to a practical problem. PRESCRIBED MATERIAL This study unit deals with sections 8, 39(2) and 239 of the Constitution and CHAPTER 3 of The Bill of Rights Handbook. RELEVANT SECTIONS OF THE CONSTITUTION 8 Application (1) The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state. (2) A provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty im- posed by the right. (3) When applying a provision of the Bill of Rights to a natural or juristic person in terms of subsection (2), a court – (a) in order to give effect to a right in the Bill, must apply, or if necessary develop, the common law to the extent that legislation does not give effect to that right; and (b) may develop rules of the common law to limit the right, provided that the limitation is in accordance with section 36. (4) A juristic person is entitled to the rights in the Bill of Rights to the extent required by the nature of the rights and the nature of that juristic person. 39 Interpretation of Bill of Rights (1) When interpreting the Bill of Rights, a court, tribunal or forum – (a) must promote the values that underlie an open and democratic society based on human dignity, equality and freedom; (b) must consider international law; and (c) may consider foreign law. (2) When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights. (3) The Bill of Rights does not deny the existence of any other rights or freedoms that are rec- ognised or conferred by common law, customary law or legislation, to the extent that they are consistent with the Bill. 8 Study unit 2: Application 239 Definitions 239 In the Constitution, unless the context indicates otherwise – 1. "organ of state" means – 1. any department of state or administration in the national, provincial or local sphere of government; or 2. any other functionary or institution – a. exercising a power or performing a function in terms of the Constitution or a provincial constitution; or b. exercising a public power or performing a public function in terms of any legislation, but does not include a court or a judicial officer; KEY CONCEPTS The following are some of the key concepts used in this study unit. It is very important that you understand the concepts clearly: COMMON LAW The common law is law which is not contained in legislation, but which exists in the writings of Roman-Dutch and English law authorities and in the precedents con- tained in case law. DIRECT APPLICATION The application of the Bill of Rights as directly applicable, resulting in the invalidation of any law or conduct that is inconsistent with it. Also see “indirect application”. EXECUTIVE The executive branch of government is vested with the authority to implement and enforce laws, and to make policy. Executive authority is vested in: the president, together with the Cabinet (in the national sphere); the premier of a province, together with the executive council (in the provincial sphere); and municipal councils (in the local sphere). HORIZONTAL APPLICATION This is the application of the Bill of Rights to a dispute between private parties where the constitutionality of legislation is not an issue. Also see “vertical application”. INDIRECT APPLICATION This is the interpretation of legislation; or development of the common law to promote the spirit, purport and objects of the Bill of Rights. Also see “direct application”. JUDICIARY This branch of government is vested with the authority to interpret legal rules and to apply them in concrete cases. Judicial authority is vested in the courts. FUR2601/1 9 STUDY UNIT 2: APPLICATION JURISTIC PERSON A juristic person is an entity, such as a company or close corporation, which is not a real or natural person, but is nonetheless regarded as having legal personality. LEGISLATURE The legislature comprises institutions which are vested with the authority to make, amend and repeal laws, namely Parliament, which is vested with legislative authority in the national sphere; provincial legislatures in the provincial sphere; and municipal councils in the local sphere. ORGAN OF STATE See the definition in section 239 of the Constitution. VERTICAL APPLICATION This is the application of the Bill of Rights to a dispute which concerns the constitutionality of legislation; or a dispute to which the state is a party. Also see “horizontal application”. Now that you are familiar with, and know, the definitions mentioned above, we will elaborate on the question “who is protected by the bill of rights?” 2.1 WHO IS PROTECTED BY THE BILL OF RIGHTS? Is the applicant entitled to a particular right or rights in the Bill of Rights? The first question to be asked when application is discussed should be: Is the applicant entitled to a particular right or rights in the Bill of Rights? For instance, is a foreign citizen who is resident in South Africa entitled to the right to human dignity; the right of access to health care or the right to vote in a general election? The starting point when answering these questions is the language of the provision of the particular rights. Most rights are afforded to everyone, but there are a number of rights which are reserved only for citizens, children, workers or some other category. Is a juristic person entitled to the rights in the Bill of Rights? A closely related question is whether a juristic person, such as a company, is entitled to rights such as equality, privacy or freedom of religion. Study section 8(4) of the Constitution to answer this question. In terms of section 8(4) of the Constitution, a juristic person is entitled to the rights in the Bill of Rights to the extent required by the nature of the right and the nature of the juristic person. Each right has to be looked at individually in order to determine whether or not the juristic person is entitled to claim these rights. For example: The nature of the right to life is such that it cannot be exercised by a juristic per- son, only by a natural person. However, a juristic person, such as the South African Broadcasting Corporation (SABC) can invoke the right to freedom of expression. First, there is nothing about the nature of this right which makes it impossible or undesirable for juristic persons to invoke it. Secondly, the nature of the juristic per- son (the SABC) is such that exercising the right to freedom of expression is part of its daily business. 10 Study unit 2: Application Application FIGURE 2.1 FUR2601/1 11 STUDY UNIT 2: APPLICATION Waiver A third question is whether a fundamental right can be waived by someone who is otherwise entitled to it. For example, can someone be obliged to honour his or her undertaking not to join a trade union or not to leave the Republic? READ These issues are discussed in chapter 3 of the textbook. You must read the applicable section, but note that you do not need in-depth knowledge of these issues. 2.2 WHO IS BOUND BY THE BILL OF RIGHTS? 2.2.1 Some important distinctions Before dealing with the relevant provisions of the Bill of Rights and their interpretation, it is important to grasp two distinctions relating to the following terms in bold: (1) the distinction between vertical and horizontal application (2) the distinction between direct and indirect application Each of these terms is elaborated below so that the distinction between them is clear. 2.2.1.1 Vertical application of the Bill of Rights Vertical application refers to the application of the Bill of Rights to a dispute which concerns the constitutionality of legislation; or a dispute to which the state is a party. Consider the following examples: A court finds that an Act of Parliament constitutes a violation of someone's constitutional rights. The constitutionality of legislation is at issue. A court finds that Mr Salmon Ella's constitutional rights have been infringed by the Department of Health. One of the parties, namely the Department of Health, is an organ of state. These are clear examples of vertical application. 2.2.1.2 Horizontal application of the Bill of Rights Horizontal application refers to the application of the Bill of Rights to a dispute between private parties where the constitutionality of legislation is not at issue. Now consider the following examples: A court finds that Mr K Mullet, a white man, has been unfairly discriminated against by a hair- dresser who specialises in African hairstyles. The Weekly Wail, a newspaper, is being sued for defamation by a prominent businessperson. In its defence, the Weekly Wail argues that the current common law relating to defamation is not in line with the Bill of Rights and should be developed to give more protection to freedom of expression. These are examples of horizontal application. Both disputes are between private parties and neither concerns the constitutionality of legislation. 2.2.1.3 Direct application of the Bill of Rights Section 8 (1) provides for direct vertical application while section 8 (2) (read with section 8 (3)) provides for direct horizontal application. 12 FUR2601/1 FIGURE 2.2 Direct vertical application Study unit 2: Application 13 STUDY UNIT 2: APPLICATION STUDY Study these provisions in depth together with the relevant pages in the textbook. Consider the following examples: In S v Makwanyane 1995 (3) SA 391 (CC), the Constitutional Court found that the death penalty, provided for in section 277 of the Criminal Procedure Act, was unconstitutional. It therefore de- clared section 277(1) invalid. This is a clear example of the direct application of the Bill of Rights. The Court compared sec- tion 277 (1) with the relevant provisions in the Bill of Rights and found that the former was inconsistent with the latter. It then used the constitutional remedy of invalidation to remove the inconsistency. In Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC), the appellant, Ms Alix Jean Carmichele, had been brutally attacked by a man who was, at the time, facing charges of rape and attempted murder. The appellant sued the state for damages. She claimed that the police and public prosecutors had failed to comply with a legal duty to protect her against someone who was known to have had a history of committing violent sexual attacks. The High Court found that the state could not be held delictually liable. It was confirmed by the Supreme Court of Appeal; and she then appealed to the Constitutional Court. The Constitutional Court found that the common law of delict had to be developed to promote the spirit, purport and objects of the Bill of Rights and, in particular, the right of women to be free from the threat of sexual violence. The case was referred back to the High Court, which – in view of the need to develop the common law in view of the Bill of Rights – then found that the state was liable for damages. This is an example of the indirect application of the Bill of Rights. The relevant common law rules were not invalidated, but were rather developed to promote the spirit, purport and objects of the Bill of Rights. The remedy granted to Ms Carmichele was not a constitutional remedy, such as invalidation, but the ordinary common law remedy of delictual damages. 2.2.1.4 Indirect application of the Bill of Rights Section 39(2) provides for the indirect application of the Bill of Rights. STUDY Study this provision in depth together with the relevant pages in chapter 3 of the textbook. You will recall that indirect application means that, rather than finding law or conduct unconstitutional and providing a constitutional remedy ( a declaration of invalidity), a court applies ordinary law, but interprets or develops it with reference to the values in the Bill of Rights. Section 39(2) foresees two types of indirect application: (1) The first concerns the interpretation of legislation: When interpreting legislation, a court must promote the spirit, purport and objects of the Bill of Rights. This means that it must prefer an interpretation that is congruent with constitutional val- ues to one that is inconsistent with these values. A legislative provision is often capable of two or more interpretations. 14 Study unit 2: Application If one interpretation would result in a finding of unconstitutionality, while a second inter- pretation would bring the provision into conformity with the Constitution, the second interpretation must be followed. However, this is subject to the following provisos: (i) It is the relevant legislation which must be brought in line with the Constitution, and not the Constitution itself which must be reinterpreted to make it consistent with the legislation. (ii) The legislative provision must be reasonably capable of an interpretation that would make it constitutional. In Daniels v Campbell NO 2004 (5) SA 331 (CC), the Constitutional Court dealt with a chal- lenge to the constitutionality of legislative provisions which conferred benefits on the surviving spouse in a marriage terminated by death. The High Court had held that these provisions were unconstitutional to the extent that they did not extend the same benefits to a husband or wife in a monogamous Muslim marriage. In its view, the term “spouse” could not reasonably be interpreted to include the parties to a Muslim marriage, as this kind of marriage was not yet recognised as valid in South African law. The Constitutional Court set aside the High Court’s order and found that the words “survivor” and “spouse” could reasonably be interpreted to include the surviving partner to a monogamous Muslim marriage. For this reason, it was unnecessary to apply the Bill of Rights directly and to invalidate the legislative provisions. (2) The second type of indirect application concerns the development of the common law. In the Carmichele case, the Constitutional Court made it clear that courts have a duty to develop the common law in line with the spirit, purport and objects of the Bill of Rights. The authors of the textbook point out that, unlike legislation, common law is judge- made law. For this reason, courts have greater scope to develop the common law in new directions – they are not constrained by the need to provide a plausible interpretation of an existing rule, but may freely adapt and develop common law rules and standards to promote the values underlying the Bill of Rights. However, there are limits to the power of the courts to develop the common law. For more information on this matter, study the relevant pages in chapter 3 of the textbook. 2.3 INDIRECT APPLICATION MUST BE CONSIDERED BEFORE DIRECT APPLICATION The indirect application of the Constitution is preferred before direct application. The reasoning behind this is that courts should avoid making pronouncements on the meaning of the Constitution where it is not necessary, so as to leave space for the legislature to reform the law in accordance with its own interpretation of the Constitution. This is known as the principle of avoidance. The rule is not absolute and will depend on the circumstances of each case. Where there is a clear violation of the Constitution and there is no apparent alternative form of ordinary relief, direct application of the Constitution would be the obvious choice. STUDY Study the relevant pages in the textbook in this regard. FUR2601/1 15 STUDY UNIT 2: APPLICATION ACTIVITY 2.1 Answer the following questions and then compare your answers with the feedback below. Who is entitled to the rights in the Bill of Rights? (1) Franco Phile, a French soccer player, has a one-year contract to play for a South African club. Is Franco entitled to the following constitutional rights? Explain your answers briefly: (a) the right to life (b) the right to administrative justice (c) the right to vote in general elections (3) (2) When can a juristic person rely on the protection of the Bill of Rights? (3) More specifically: (a) Can an insurance company invoke the right to life? (2) (b) Can a trade union invoke the right to engage in collective bargaining? (2) (c) Can a close corporation invoke the right of access to information? (2) (d) Can the SABC invoke the right to freedom of speech? (2) (e) Can the Gauteng provincial government invoke the right to equality? (2) (3) ABC Supermarket is charged with the violation of the Liquor Act for selling wine on a Sunday. In its defence, ABC Supermarket argues that the Act is an unconsti- tutional violation of its right to freedom of religion. (a) Advise ABC Supermarket whether it can lay claim to the right to freedom of religion. (2) (b) If ABC Supermarket cannot lay claim to the right to freedom of religion, can it nevertheless invoke the right to freedom of religion to challenge the constitutionality of the Act? (2) (4) Can a juristic person rely on the protection of the Bill of Rights? For instance, can the SABC invoke the right to life and the right to freedom of expression? (5) Who is bound by the Bill of Rights? (5) State whether the following statements are true or false. Give reasons for your answers. (NB: CONFINE YOURSELF TO THE APPLICATION OF THE BILL OF RIGHTS. DO NOT DISCUSS THE MERITS OF THE CASE.) (a) It is not necessary for the rules of Elite Secondary School (a private school) to comply with the provisions of the Bill of Rights. (2) (b) The Department of Education is one of the few state departments not bound by the Bill of Rights. (2) (c) The immigration authorities are entitled to deport all illegal immigrants im- mediately, because they are not protected by the 1996 Constitution. (2) (d) The Happy Sunday Liquor Store may trade on Sundays, because it is pro- tected by section 15 of the 1996 Constitution, which makes provision for the right to freedom of religion. (2) (e) Natural and juristic persons are not bound by the right of access to ad- equate housing in terms of section 26(1), but are bound by the right of a person not to be evicted from his/her home without a court order (in terms of s 26(3)). (2) 16 Study unit 2: Application (f) The Bill of Rights applies to the conduct of a farm owner who refuses to provide housing for a group of squatters. (2) (6) Does the Bill of Rights apply to the following? (NB: DISCUSS THE APPLICATION OF THE BILL OF RIGHTS ONLY, AND NOT THE MERITS OF THE CASE. (GIVE REASONS FOR YOUR ANSWERS.) (a) A decision by Parliament to adopt a new Immigration Act. (2) (b) A decision by a private school to expel five learners. (2) (c) An interim interdict issued by the magistrate’s court. (2) (d) The requirement that only people between the ages of 20 and 40 may ap- ply for membership of a gymnasium. (2) (e) A will in terms of which a female descendant is prevented from inheriting the deceased estate. (2) (7) Discuss whether a juristic person can rely on the protection of the Bill of Rights and to what extent. For instance, can Noseweek, an independent newspaper, in- voke the right to life and the right to freedom of expression? (5) Direct application (8) What does “the conduct of organs of state” refer to? (4) (9) Does the Bill of Rights apply to the following? Give reasons for your answers: (a) an act of parliament (2) (b) a municipal bylaw (2) (c) a court order (2) (d) a traffic officer imposing a fine (2) (e) a decision by Unisa to expel a student (2) (f) exercising the president’s power to pardon offenders (2) (10) When will a provision of the Bill of Rights bind a natural or juristic person, ac- cording to section 8(2)? How should this provision (s 8(2)) be interpreted? (11) Does the Bill of Rights apply to the following conduct? Give reasons for your answers. (a) A guesthouse makes it clear that gay and lesbian couples are not wel- come. (2) (b) A farm owner refuses to provide housing for a group of squatters. (2) (c) A private hospital turns away all patients who cannot pay, even in cases of emergency. (2) Indirect application (12) In what circumstances can a court avoid a declaration of constitutional invalidity by interpreting legislation in conformity with the Constitution? (8) (13) You are a clerk to Van Leeuwen J, a judge of the High Court. She is presiding over a case in which the constitutionality of an Act of Parliament is under attack. The judge asks you to write a brief opinion on the following questions: (a) What are the differences between a direct and indirect application? (10) (b) When should a court apply the Bill of Rights directly to legislation? When should it rather interpret legislation in conformity with the Bill of Rights? (5) FUR2601/1 17 STUDY UNIT 2: APPLICATION (14) Van Leeuwen J is also presiding over a case in which it is argued that the com- mon law of defamation is inconsistent with the Bill of Rights, since it does not afford adequate protection to freedom of expression. She asks you to write a brief opinion on the following question: (a) Are there cases in which a court may simply invalidate a common law rule for being inconsistent with the Bill of Rights? (4) FEEDBACK ON ACTIVITY (1) Here, you merely need to read the relevant provisions of the Bill of Rights. Sec- tion 11 reads: “Everyone has the right to life.” Section 33 provides: “Everyone has the right to administrative action that is lawful, reasonable and procedurally fair.” Franco is therefore entitled to these rights. However, section 19 (Political rights) is applicable only to every citizen. As a noncitizen, Franco is not entitled to this right. (2) Briefly discuss section 8(4) when answering this question. (a) By applying section 8(4), it is unlikely that a company can claim the right to life. This is so because the nature of the right is such that it refers to human life and does not encompass the existence of a company. (b) With regard to the nature of the right and the nature of the juristic per- son, the answer is obviously “Yes”, because this is the reason why trade unions exist. (c) Yes, the nature of the right of access to information is such that it can be exercised in principle by a juristic person such as a close corporation. (d) The nature of the right is such that it can be exercised by a juristic person. Moreover, freedom of expression is central to the activities of the SABC. The SABC is therefore entitled to this right, even though it is state-owned. (e) Probably not, because the Gauteng provincial government is an organ of state and its nature precludes the right to equality. (3) (a) No, a juristic person such as a supermarket cannot lay claim to freedom of religion, given the nature of the right and the nature of the juristic per- son. (One could argue that a church society, albeit a juristic person, will indeed be able to claim this right.) (b) In our view, the answer should be “Yes”. Even though the supermarket is not entitled to the right to freedom of religion, it would have locus standi, since it has a sufficient interest in the outcome of the case. (4) Here, you first have to discuss section 8(4) of the Constitution. In terms of section 8(4), a juristic person is entitled to the rights in the Bill of Rights to the extent re- quired by the nature of the right and the nature of the juristic person. Each right has to be looked at individually in order to determine whether or not the SABC, as a juristic person, is entitled to claim these rights. The nature of the right to life is such that it cannot be exercised by a juristic person, but only by a natural person. However, the SABC can invoke the right to freedom of expression. First, there is nothing about the nature of this right which makes it impossible or undesirable for juristic persons to invoke it. Secondly, the nature of the juristic person (the SABC) is such that exercising the right to freedom of expression is part of its daily business. You will also be given credit for referring to the possible impact of the law of standing on these issues. Currie and De Waal argue that a juristic person may be allowed to attack the constitutionality of a law or conduct on the grounds that it infringes a fundamental right, even if the juristic person is not entitled to that 18 Study unit 2: Application right in terms of section 8(4). For instance, if the juristic person has a sufficient interest in the matter to have standing, it may be allowed to invoke the right to freedom of religion, even if it is not by itself capable of exercising freedom of religion. (5) (a) False. It may be argued that the school, as a private school, is an institution performing a public function in terms of legislation and is therefore, in terms of the definition in section 239, an organ of state and bound by the Bill of Rights in terms of section 8(1). It may also be argued that the school, as a juristic person, is bound in terms of section 8(2), depending on the na- ture of the right and the nature of the duty imposed by the right. (b) False. In terms of section 8 (1), the executive and all organs of state are bound by the Bill of Rights. (c) False. In terms of section 33, every person (therefore, also an illegal immi- grant) has the right to just administrative action. (d) False. The liquor store as a juristic person (s 8(4)) is of such a nature that it is not protected by the right to freedom of religion. However, because of it having a sufficient interest in the decision of the court, it will have stand- ing in terms of section 38. (e) True. In terms of section 8(2), both natural and juristic persons are bound by the Bill of Rights, depending on the nature of the right and the nature of the duty imposed by the right. Section 26(2), however, seems to indicate that it is binding on the state only; therefore, leading us to believe that section 26 (1) may not apply to private conduct as well. Section 26 (3), is then binding on both the state and natural and juristic persons. Authority for this view may be found in Brisley v Drotsky 2002 (12) BCLR 1229 (SCA), paragraph 40. (f) False. The right involved is the right to housing, and, more specifically, sec- tion 26(2). It is unlikely that private persons will be held to have a duty in terms of section 26(2), given the nature of the duty and the fact that sec- tion 26(2) refers only to the state’s obligation to provide housing. (6) This question involved the application of the Bill of Rights to those who are bound by the Bill of Rights. The relevant provisions in the 1996 Constitution are subsections 8(1) and (2). Section 8(1) provides that the Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state. It must always be read together with section 239, which defines the term “organ of state”. Subsection 8(2) makes provision for the application of certain rights to natural and juristic persons. To answer this question, you should deter- mine whether the law or conduct in question is covered by subsection 8(1) or 8(2). (a) Yes, in terms of section 8(1), the legislature is bound by the Bill of Rights. (b) Yes, it could be argued that a private school performs a public function in terms of legislation and that it is therefore an organ of state. If this is the case, the private school will be bound in terms of section 8(1). Alternatively, one can argue that the school, as a juristic person, will be bound in terms of section 8(2). (c) Yes, the judiciary is bound in terms of section 8(1). (d) A gymnasium is not an institution which performs a public function in terms of legislation. It is therefore not an organ of state and is not bound in terms of section 8(1). However, it will be bound in terms of section 9(4) read with section 8(2). Section 9(4) makes it clear that no person (including a juristic person) may discriminate unfairly. (e) The testator is bound in terms of section 9(4) (read with s 8(2)) not to dis- criminate unfairly. FUR2601/1 19 STUDY UNIT 2: APPLICATION (7) In Ex Parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa, 1996 1996 (4) SA 744 (CC) (First Certifi- cation judgment) the Court emphasised that many universally accepted fundamental rights will be fully recognised only if afforded to juristic persons as well as to natural persons. Section 8 (4) provides for the protection of juristic persons. A juristic person is entitled to the rights in the Bill of Rights to an extent. In order to determine whether a juristic person is protected by a particular right or not, two factors must be taken into consideration: first, the nature of the right, and, secondly, the nature of the juristic person. The nature of some fundamental rights is such that these rights cannot be applied to juristic persons. Noseweek cannot be protected by the right to life, which is afforded to human beings only, although it might have standing to approach a competent court if the requirements of section 38 have been complied with. Other rights, such as the right to freedom of expression, have been specifically afforded to the media, which is often controlled by juristic persons. (8) See section 239 of the Constitution. (9) This question involves an application of section 8(1). Pay careful attention to the potential pitfalls which this question holds for students who do not understand the difference between the application of the Bill of Rights and the merits of a case. The question is whether the Bill of Rights comes into play at all, not whether an Act of Parliament can be declared invalid, for example. (a) Yes, because the Bill of Rights applies to all law and binds the legislature. (b) Yes, because the Bill of Rights applies to all law and binds the legislature. (c) Yes, because the Bill of Rights binds the judiciary. (d) Yes, a traffic official performing an official duty is a member of a depart- ment of state and his or her conduct would therefore amount to that of an organ of state (s 239(a)). (e) The easy answer is that a university is bound because it is a state organ in terms of section 239(b)(ii). Read this section yourself. Even if this were not the case, it may be argued that section 8(2) would cover the case in point. (f) The President is a member of the executive (in fact, its head) and every- thing he/she does by virtue of his/her office is subject to the provisions of the Constitution. See the case of President of the Republic of South Africa v Hugo 1997 (4) SA 1 (CC). (10) Summarise the provisions of section 8(2). Include a discussion of the case of Bar- khuizen v Napier 2007 (5) SA 323 (CC). (11) This question involves an application of section 8(2). (a) Yes, the nature of the right not to be unfairly discriminated against and the duty imposed by it are such that the right can be applied to natural and juristic persons. Moreover, section 9 (4) states clearly that no person may unfairly discriminate. (b) The right involved is the right to housing and, more specifically, section 26 (2). It is unlikely that private persons will be held to have a duty in terms of section 26(2), given the nature of the duty and the fact that section 26(2) refers only to the state’s obligation to provide housing. (c) Even though a private hospital is not bound by section 27(2), it is bound by section 27 (3) (the right not to be refused emergency medical treatment). (12) You will recall that indirect application means that, rather than finding law or conduct unconstitutional and providing a constitutional remedy ( a declaration 20 Study unit 2: Application of invalidity), a court applies ordinary law, but interprets or develops it with refer- ence to the values in the Bill of Rights. Section 39(2) foresees two types of indirect application. The first concerns the interpretation of legislation. When interpreting legislation, a court must promote the spirit, purport and objects of the Bill of Rights. This means that it must prefer an interpretation that is congruent with constitutional values to one that is inconsistent with these values. A legislative provision is often capable of two or more interpretations. If one interpretation would result in a finding of unconstitutionality, while a second interpretation would bring the provision into conformity with the Constitution, the second interpretation must be followed. However, this is subject to the following provisos: It is the relevant legislation which must be brought in line with the Constitution and not the Constitution itself which must be reinterpreted to make it consistent with the legislation. The legislative provision must be reasonably capable of an interpretation that would make it constitutional. In Daniels v Campbell, the Constitutional Court dealt with a challenge to the constitutionality of legislative provisions which conferred benefits on the surviving spouse in a marriage terminated by death. The High Court had held that these provisions were unconstitutional to the extent that they did not extend the same benefits to a husband or wife in a monogamous Muslim marriage. In its view, the term “spouse” could not reasonably be interpreted to include the parties to a Muslim marriage, since this kind of marriage was not yet recognised as valid in South African law. The Constitutional Court set aside the High Court’s order and found that the words “survivor” and “spouse” could reasonably be interpreted to include the surviving partner to a monogamous Muslim marriage. For this reason, it was unnecessary to apply the Bill of Rights directly and to invalidate the legislative provisions. The second type of indirect application concerns the development of the common law. In the Carmichele case, the Constitutional Court made it clear that courts have a duty to develop the common law in line with the spirit, purport and objects of the Bill of Rights. The authors of the textbook point out that, unlike legislation, common law is judge-made law. For this reason, courts have greater scope to develop the common law in new directions – they are not constrained by the need to provide a plausible interpretation of an existing rule, but may freely adapt and develop common law rules and standards to promote the values underlying the Bill of Rights. (13) (a) Section 8 (1) binds the executive, the legislature, the judiciary and all or- gans of state. This section provides for direct vertical application of the Bill of Rights. If an Act of Parliament (or certain provisions thereof) is being challenged for being unconstitutional and the court does find that the im- pugned provision violates the rights of the applicant (s), then the Bill of Rights will override the said provision and the latter will (in most instances) be struck down. Section 8(2) makes provision for direct horizontal application of a right in the Bill of Rights if, and to the extent that, the right is applicable, taking the nature of the right and the nature of the duty imposed by the right into account. A right of a beneficiary of the Bill of Rights must have been infringed by a person or entity on which the Bill of Rights has imposed a duty not to infringe the right. When the Bill of Rights is directly applicable, it overrides the common law rules which are inconsistent with it; and the remedy granted by the court will be a constitutional one. Indirect application refers to the interpretation, development and application of legislation or common law by every court, tribunal or forum FUR2601/1 21 STUDY UNIT 2: APPLICATION in a way which respects the values of the Bill of Rights and promotes its purport, spirit and objects (s 39 (2)). By virtue of the processes of interpretation, development and application, ordinary law is infused with the values underlying the Bill of Rights. However, there are limits to indirect application. For example, legislation cannot always be reasonably interpreted to comply with the Bill of Rights, and common law can only be developed on a case-by-case basis; and in certain instances, its development may be hindered by the doctrine of stare decisis. (b) The following facts are important here: A court must always first consider indirect application to a legislative provision by interpreting it to conform to the Bill of Rights before applying the Bill of Rights directly to the provision. However, there are limits to the power of the courts to apply the Bill of Rights indirectly. The Supreme Court of Appeal and the Constitutional Court have stressed that it must be reasonably possible to interpret the legislative provision to conform to the Bill of Rights; and that the interpretation must not be unduly strained. If the provision is not reasonably capable of such an interpretation, the court must apply the Bill of Rights directly and declare the provision invalid. (14) There have been a few cases in which the Constitutional Court simply invalidated a common law rule for being inconsistent with the Bill of Rights. For instance, in National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (SA) 6 (CC), the court invalidated the common law offence of sodomy. In this case, it was impossible to develop the common law – the crisp question before the court was whether this offence was consistent with the rights to equality, human dignity and privacy. Similarly, in Bhe v Magistrate, Khayelitsha 2005 (1) SA 850 (CC), the Constitutional Court invalidated the customary law rule of male primo- geniture, in terms of which wives and daughters are precluded from inheriting from the estate of a black person who died without leaving a will. The majority found that this rule, which constitutes unfair gender discrimination and violates the right of women to human dignity, could not be developed in accordance with section 39 (2) and had to be struck down as unconstitutional. (However, Ngcobo J, in his dissenting judgment, found that the rule could and should be developed to promote the spirit, purport and objects of the Bill of Rights.) It must be stressed that this is the exception rather than the rule. Even in cases of direct horizontal application, section 8 (3) makes it clear that a court is required, where necessary, to develop the common law to give effect to the right being infringed. 2.4 CONCLUSION In this study unit, we examined the first question in the procedural stage of fundamental rights litigation. Does the Bill of Rights apply to a particular dispute? How does it apply? We explored two questions: (a) Who is entitled to the rights in the Bill of Rights? (b) Who is bound by the rights in the Bill of Rights? We saw that the Bill of Rights applies to the vertical relationship between the individual and state, and to horizontal relationships among individuals. In addition, we explained that the Bill of Rights may apply either directly or indirectly. 22 Study unit 2: Application NOTE: The merits of the issue are not relevant at all at this stage, but only whether the Bill of Rights is in any way applicable in respect of the issue. In the next study unit, we turn to the next procedural issues a court has to consider, namely whether an issue is justiciable and whether the applicant has standing locus standi. FUR2601/1 23 Study unit 3 Locus standi (standing) Studyunit3 TABLE 3.1 Locus standi (standing) What you should know before attempting this study unit Before attempting this study unit, you must make sure that you are able to do the following: Discuss who is entitled to the rights in the Bill of Rights. Distinguish between the direct and indirect application of the Bill of Rights; and discuss the sig- nificance of the distinction. Analyse section 8(1) and section 8(2) of the Constitution, which provide for direct vertical and direct horizontal application. Discuss the indirect application of the Bill of Rights to (a) legislation and (b) the common law. Discuss when the Bill of Rights should be applied directly or indirectly to (a) legislation and (b) the common law. This will serve as an indication that you understand the various matters involved. 24 Study unit 3: Locus standi (standing) OVERVIEW In the previous study unit, you were introduced to some of the operational provisions of the Bill of Rights. You learnt how the Bill of Rights applies in respect of protecting people and binding them to act in accordance with its provisions. In this study unit, we discuss two procedural issues, namely whether an applicant can institute an action in a court of law and whether the issue before the court is justiciable. OUTCOMES Once you have worked through this study unit, you should be able to do the following: Know and explain the meaning of justiciability. Establish whether an applicant in a particular case has standing. Know the meaning of ripeness and mootness and be able to explain these terms in a short sentence. Apply the provisions of section 38 of the Constitution to a practical problem. PRESCRIBED MATERIAL This study unit deals with CHAPTER 4 of The Bill of Rights Handbook. RELEVANT SECTIONS OF THE CONSTITUTION Section 38 states Anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights. The persons who may approach a court are – (a) anyone acting in their own interest; (b) anyone acting on behalf of another person who cannot act in their own name; (c) anyone acting as a member of, or in the interest of, a group or class of persons; (d) anyone acting in the public interest; and (e) an association acting in the interest of its members. KEY CONCEPTS The following are some of the key concepts used in this study unit. It is very important that you understand these concepts clearly: JUSTICIABILITY An issue will be said to be justiciable if the court is capable of resolving the conflict by applying legal rules and principles. STANDING/LOCUS STANDI Locus standi refers to the capacity of the litigant to appear in court and claim the relief he or she seeks. The applicant or litigant must be the appropriate person to present the matter to the court for adjudication. In this study unit our main focus will be on locus standi. FUR2601/1 25 STUDY UNIT 3: LOCUS STANDI (STANDING) RIPENESS Ripeness stems from the principle of avoidance and basically means that a court should not adjudicate a matter that is not ready for adjudication. The court is thus prevented from deciding on an issue too early, when it could, for example, be decided on by means of a criminal or civil case and should not be made into a constitutional issue. MOOTNESS This is when an issue is no longer contentious and it no longer affects the interest of the parties involved. A case would be moot if it is merely abstract, of academic interest or hypothetical. The broad approach to standing will be elaborated on next. 3.1 THE BROAD APPROACH TO STANDING The common law approach to standing was restrictive and rigid. According to this approach, a person who approached the court for relief was required to have a personal interest in the matter and be personally and adversely affected by the alleged wrong. This meant that the applicant's own rights had to be affected and not the rights of someone else. The constitutional approach to standing brought about drastic changes in the form of section 38(a)–(e). This section provides a more flexible approach to standing. In Ferreira v Levin NO 1996 (1) SA 984 (CC), Chaskalson P, by applying section 38, advocated a broad approach to standing. He said that a broad approach was important to ensure that all applicants enjoyed the full measure of protection of the Constitution. Section 38 of the Constitution contains five categories in respect of which a litigant will have standing for the purposes of chapter 2 of the Constitution. The litigant no longer needs to have a personal interest; or be personally affected by the alleged wrong. According to the Court, the applicant only needs to do the following to have standing: Allege that a right in the Bill of Rights has been infringed or threatened. Demonstrate, with reference to the categories listed in section 38(a)–(e), that there is sufficient interest in obtaining the remedy sought. This term is unpacked below. 3.2 SUFFICIENT INTEREST There is no specific test to determine when an interest will be regarded as sufficient. The applicant (or the person or group’s interest they rely on) must at least be directly affected by a law or conduct before he or she will have standing to challenge it. The concept of sufficient interest is linked to the categories of persons listed in section 38 that will be discussed below. For example, if an association acts on behalf of its members, in terms of section 38 (e), the members must have sufficient interest in the remedy it seeks. What is regarded as sufficient interest must be interest in the relief the applicant seeks. 3.3 THE CATEGORIES OF PERSONS There are five categories of persons listed and elaborated on below. 3.3.1 Section 38(a) “anyone acting in their own interest” An own interest litigant must show that a contested law or decision directly affects his or her rights or interests; or potential rights or interests. 26 Study unit 3: Locus standi (standing) 3.3.2 Section 38(b) “anyone acting on behalf of another person who cannot act in their own name” There are many reasons why someone may not be able to act in his or her own interest, for example, a minor child or a detained person who may find it difficult to approach the court. Requirements: The person(s) in whose interests another acts must consent thereto. If such consent cannot be given, it must be clear from the circumstances that consent would have been given if it were possible. Remember the represented person must have a “sufficient interest” in the remedy sought. 3.3.3 Section 38(c) – “anyone acting as a member of, or in the interest of, a group or class of persons” This provision allows for so-called “class actions”. A case may be brought by a party on behalf of not only himself or herself, but also on all parties similarly situated. Therefore, the claims of a number of persons against the same defendant will be determined in one case. The most important feature of a class action is that members of the class, although not formally and individually joined, may benefit and are bound by the outcome of the litigation, unless they invoke prescribed procedures to opt out. Class actions require an applicant to identify and specify the class of litigants. A good example of class action litigation is Ngxuza v Permanent Secretary, Department of Welfare, Eastern Cape 2001 (2) SA 609 (E). In this case, the Eastern Cape administration ceased payment of “social grants”. The beneficiaries of such grants were not afforded the opportunity to state their case. Moreover, the prescribed requirements and procedures were not complied with. Froneman J had no doubt that the suspension of benefits in these circumstances violated the right to just administrative action. A class action in terms of section 38(c) of the Constitution was found to be appropriate. Government appealed the decision on the ground that the order did not adequately define the class. The Supreme Court of Appeal held that the requirements for a class action had been complied with, since so many individuals were involved that it would have been impractical to join all members. Furthermore, it was held that the members of the class had identical legal and factual issues. 3.3.4 Section 38(d) “anyone acting in the public interest” This is the most difficult of all the categories. The requirements are as follows: (1) It must be shown that one is acting in the public interest. (2) Does the public have a sufficient interest in the remedy? The action is brought in the interest of a broader group than is the case in section 38(c). (1) How does one show that one is acting in the public interest? In Ferreira v Levin, O'Regan J held that the applicant must show that he or she is indeed acting in the public interest. She held that four factors would determine whether a person is, in actual fact, acting in the public interest: Is there another reasonable and effective way in which this action can be brought? The nature of the remedy sought and the degree to which it will be generally and retro- spectively applicable. The range of persons, or groups of persons, who may be directly or indirectly affected by the court order. FUR2601/1 27 STUDY UNIT 3: LOCUS STANDI (STANDING) The opportunity that these persons/groups had to adduce evidence and make submis- sions in court. In Lawyers for Human Rights v Minister of Home Affairs 2004 (4) SA 125 (CC), the Court held that the factors set out by O'Regan were not a numerus clausus. Additional factors that were also considered were: the degree to which people are affected the vulnerability of the people affected the nature of the right which has allegedly been violated the consequences of the violation of the right (2) The public's sufficient interest in the remedy The second requirement before it can be shown that an action is in the public interest gives rise to a number of difficult questions. Timing is everything. When the legislature is already dealing with the matter, it will normally not be in the public interest; and the court will not wish to anticipate or “prejudge” the matter. Furthermore, the court must have sufficient evidence/proof and arguments before it in order to decide the matter. If the court does not have the “full picture”, it will be hesitant to accept that the matter is, in fact, in the public interest. For example in Albutt v Centre for the Study of Violence and Reconciliation 2010 (3) SA 293 (CC), the Constitutional Court held that a group of NGOs had standing to challenge an exercise of the President’s pardon power on the grounds that it violated the rule of law. The NGOs had an interest in ensuring compliance with the Constitution and the rule of law that was sufficient to grant them standing to litigate in the public interest. 3.3.5 Section 38(e) – “an association acting in the interest of its members” This provision is important in view of the fact that, prior to 1994, courts did not generally allow associations to litigate on behalf of their members. The association must show that the members have a sufficient interest in the remedy it seeks. Common law requirements are not followed and it is not necessary to show that the association’s constitution permits it to litigate; that it has a continued right of existence; that it has an identity separate from its members; or can own property or acquire rights and incur obligations. ACTIVITY 3.1 (1) Who, in terms of section 38, has standing to approach the court in respect of a violation of a fundamental right? (5) (2) Is the following statement true or false? Give reasons for your answer. “The Constitutional Court favours a narrow approach to standing as opposed to the broad approach.” (10) (3) Suppose Parliament passes an Act in terms of which no public servant may be a member of a secret organisation. Would the following persons have locus standi to challenge the constitutionality of the Act in a court of law? Give reasons for your answers. (a) A public servant who is told to quit his membership of a secret organisation. (2) (b) A secret organisation, on behalf of its members. (2) (c) A member of the secret organisation, who is not a public servant, on behalf of all the members of the organisation who may be prejudiced by the Act. (2) (d) Free to be We, a human rights organisation, which campaigns for greater recognition for the right to freedom of association. (2) (e) The municipality of Secret City on behalf of its employees. (2) 28 Study unit 3: Locus standi (standing) (4) Z, a convicted prisoner, wishes to approach a court as he feels that some of his fundamental rights have been infringed. He requests his brother, X, to act on his behalf. Can X approach the court on behalf of Z? (5) (5) Does South African law make provision for so-called class actions? Give a critical discussion. (5) (6) List the requirements needed to obtain locus standi when a person would like to act in the public interest. (2) (7) Discuss the factors a court would take into consideration as proof that a person is acting in the public interest. (10) (8) Discuss whether an association could approach a court on behalf of its mem- bers. (5) FEEDBACK ON ACTIVITY (1) In terms of section 38 of the Constitution, the following persons who may ap- proach the court: anyone acting in their own interest anyone acting on behalf of another person who cannot act in their own name anyone acting as a member of, or in the interest of, a group or class of people anyone acting in the public interest an association acting in the interest of its members (2) False. Under the common law, South African courts had a narrow (or restrictive) approach to standing. The person approaching the court for relief had to have an interest in the subject matter of the litigation in the sense that he or she per- sonally had to be adversely affected by the alleged wrong. But, as the court in Ferreira v Levin stated, there must be a broader approach to standing in Bill of Rights litigation so that the constitutional rights enjoy their full measure of protection. When a right in the Bill of Rights has been infringed, section 38 becomes applicable; and the rules of the common law or legislative provisions governing standing are not relevant. The applicant must allege that there a provision in the Bill of Rights has been violated (and not any other constitutional provision). The Bill of Rights must be directly invoked and there must be an allegation (not proof) that any right in the Bill of Rights (not necessarily that of a specific person) has been infringed or threatened. With reference to the categories listed in section 38, the applicant must show , that there is sufficient interest in the remedy being sought, but it does not mean that there must be an infringement or threat to the applicant's own rights. In Ferreira v Levin, it was found that the applicant could rely on the right to a fair trial, even though he was not an accused person in a criminal trial. He had a sufficient interest in the constitutionality of the relevant provision of the Companies Act. (3) (a) section 38(a) (b) section 38(e), (b) or perhaps (c) (c) section 38(c), or perhaps (b) (d) section 38(d) (e) section 38(e) FUR2601/1 29 STUDY UNIT 3: LOCUS STANDI (STANDING) (4) See the discussion in 4.3.2 above. (5) See the discussion in 4.3.3 above. (6) See the discussion in 4.3.4 above. (7) See the discussion in 4.3.4 above. (8) See the discussion in 4.3.5 above. 3.4 CONCLUSION The aim of this study unit was to explain the importance of standing (locus standi); and to teach you how to apply the provisions of section 38 in order to determine whether an applicant has standing. You also encountered the important concept of justiciability. In the next study unit, you will be introduced to another important procedural matter, namely jurisdiction, and to the important issues surrounding it. 30 Study unit 4 Jurisdiction in Bill of Rights litigation Studyunit4 What you should know before attempting this study unit Before attempting this study unit, you must make sure that you understand the following key concepts: know and be able to explain the meaning of justiciability be able to establish whether an applicant in a particular case has standing know the meaning of ripeness and mootness, and be able to explain these terms in a short sentence be able to apply the provisions of section 38 of the Constitution to a practical problem OVERVIEW This study unit deals with sections 166 to 173 of the Constitution. The previous two study units dealt with the first two procedural issues a court has to consider, namely whether the Bill of Rights applies to a dispu

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