Topic 1 Bill of Rights Procedural Aspects PDF

Topic 1: Bill of rights: Procedural aspects Thursday, 25 July 2024 15:40 - Bill of rights = s 7 to s 39 - Also look at s 2 1. Nature of Bill of rights and relationship to transformative constitutionalism - Point of departure: The Bill of Rights is holistic in nature - all r...

Topic 1: Bill of rights: Procedural aspects Thursday, 25 July 2024 15:40 - Bill of rights = s 7 to s 39 - Also look at s 2 1. Nature of Bill of rights and relationship to transformative constitutionalism - Point of departure: The Bill of Rights is holistic in nature - all rights enforceable by courts >> justiciable. - Structure of bill of rights litigation differs from litigation dealing with other alleged breaches of the Constitution - Different types of rights 1. Operative rights = regulate manner in which Bill of Rights operates + manner it is enforced by the courts ▪ those concerned with regulation of procedural aspects of rights ○ Ex. s. 36 limitation clause. Procedural = tells the procedure by which a substantive rights, Ex. to housing, can be enforced. 2. Substantive right = right to something ○ Ex. right to housing - Link to transformative constitutionalism? ○ Whole project of transformative constitutionalism is to use the Constitution to create social & economic change. ○ Breath of application of the Bill of Rights + range of rights it establishes aim to facilitate social + economic transformation while protecting human dignity ○ Judges need to substantiate their decisions with both authority AND rights, ideas & values @ Constitution; can’t just use technical authorities/legislative readings anymore. Pius Langa “Transformative Constitutionalism” (2006) Vol 3 Stell LR 351 at 357 Linking aspects: - Different aspects link to transformative constitutionalism because contribute to large scale social change. - Preamble – sets out purpose of Constitution ○ heal divisions of the past ○ achieve social justice ○ improved quality of life for all Socio-economic redress & transformation Constitutional law 244 Page 1  - Socio-economic redress & transformation ○ ss. 9(2), 25, 26, 27, 28(1)(c) & 29. - Negative & positive duties (s. 7(2)). - Application ○ Vertical application: you have rights that can enforce against state, e.g. to housing ○ Horizontally: you have rights can enforce against other people. ▪ generally natural persons, and to limited extent juristic persons. - Religious & cultural diversity ○ S. 14, 30, 31 & 39(3) - Legal culture: value-based reasoning - Openness to foreign & international law Extra: - Before a court can consider whether there was a breach of the Bill of rights, they must 1st consider: ○ whether the person/organisation that wishes to approach the court is entitled to the protection that the Bill of rights affords ○ Whether the person/organisation has the correct standing to bring the case ○ Whether that person who allegedly infringed their right is bound by the Bill of Rights ○ When the court establishes an infringement of a right, the court is to determine if the limitation is justifiable in terms of S 36 of the Constitution >> unjustifiable limitation is unlawful 1. Interpreting rights a. Overarching structure of Bill of rights litigation - Because of Constitution, Bill of Rights litigation looks very different from other kinds of litigation. 3 stages of Bill of Rights litigation: 1. Procedural: when making application ○ Point of departure: if court approached has jurisdiction. ○ Beneficiaries: who is allowed to claim the right in question >> Bill of Rights has many rights, but not all are beneficiaries of those rights □ Ex. Some limited to citizens, children, worker/ others available to everyone. ○ Standing: are you competent to bring claim you’re bringing before the court. Only answer this question once proved court has jurisdiction and you are beneficiary of right in question. 2. Substantive: ○ Scope & content of right: what does the right mean & contain. ○ Has right been limited: have to interpret right in order to limit, because need to know what the right is at interpretation stage. ○ If right limited: s. 36 analysis whether justifiable limitation or not. 3. Remedy: if right was unjustifiably limited ○ Look for appropriate remedy ○ Use s. 38 read with s. 172 ○ If fail at any one of the stages >> claim falls through. Section 39 - Can no longer read legislation, Bill of Rights etc. only giving a textual interpretation. - NB! When interpreting the Bill of Rights = must interpret as broadly as possible (purposive & generous interpretation established @ S v Makwanyane) ○ Ex. housing: 4 walls & roof = house, but is that enough? Is there electricity, abolition facilities, correct land use area? Need to give effect to underlying values of democracy, e.g. human dignity. - Purposive and generous interpretation (S v Makwanyane, para 9) - Responsiveness to social and historical context: Grootboom paras 21 – 25; see unfair discrimination analysis (Mahlangu) Context established by Grootboom: Textual context: when interpreting, need to take into account context of Bill of Rights as a whole as well as Constitution as a whole. Constitutional law 244 Page 2  - Textual context: when interpreting, need to take into account context of Bill of Rights as a whole as well as Constitution as a whole. - Social & historical context: make use of substantive equality instead of formal equality. ○ Ex. equality: historically black people discriminated against, so need to interpret with context of there not being equality for that group in past. - Methodology of s 39(1): values; international law; foreign law - Constitutional values: human dignity, equality and freedom (ss 7(1), 36(1), 39(1)) ○ every matter that comes before the CC is dealt with using this methodology. b) The promotion of values underlying an open and democratic society - section 39 (1) (a) - MUST - not optional - Human dignity is a fundamental value informing the interpretation of “many, possibly all, other rights”, & also an enforceable independent substantive right (s 10) (Dawood, paras 35 – 36) - Other constitutional values may play an important role in context of other rights: e.g., right to equality in s 9 informed by value of equality (Mahlangu); freedom of expression in s 16 informed by value of freedom (Print Media) - Close interrelationship between constitutional values Human dignity: - NB when interpreting all rights. In addition to using to interpret other rights, also stand-alone right @ s. 10 of Constitution. - Dawood case: ○ effectively what infringed upon was people wanted to enter sustained permanent intimate relationship and there’s no Constitutional right to it BUT there is to human dignity, and not being able to structure home and relationship situation as wish infringes on that. ○ Values often inform equivalent rights. NB role in right’s context. ○ NB: the role court allowed human dignity to play when interpreting reasonableness standard. ▪ actually need to look at human dignity to decide what is reasonable. If infringe on human dignity, then not reasonable. Equality: - Underlies s. 9 - Looking for substantive equality because worries about equality of outcome. Want to make sure treatment giving everyone leads to giving all same opportunity to achieve same outcome. ○ Ex. bigger font size for one student when writing A2. No equal treatment, but equal outcome of being able to write test. ○ Also called real equality because takes context & history into account. - Mahlangu case: concerned w/Act that gives compensation for work place injuries. - Woman died by drowning in pool of house she worked at about 20 years. ○ Family couldn’t claim from fund, because domestic workers excluded from Act ○ Court says discrimination based on income, race, gender and job status (not NB). Based on this, say Compensation Fund must now include domestic workers. Freedom: - Informs s. 16: expression - Ferreira v Levin: court says can’t function without freedom. Interconnected with dignity - Print Media case: concerned with censorship laws. - Censorship has chilling effect on freedom, because if government regulates what can & can’t consume in media, effectively telling you what your morals should tell you is right & wrong (which they don’t have right to). Ubuntu: - Nguni languages such as isiXhosa and Zulu: “umuntu ngumuntu ngabantu” - Not expressed in constitutional text, but recognised in jurisprudence o “[ubuntu] emphasises the communal nature of society and ‘carries in it the ideas of humaneness, social justice and fairness’ and envelopes ‘the key values of group solidarity, compassion, respect, human dignity, and collective unity’.” (Beadica, para 207 citing Everfresh judgment) ▪ Court had to try and determine how to develop doctrines that had to do w/contract law in line w/constitutional value. ▪ Ubuntu emphasises communal nature of society & includes ideas of humanness, social justice & fairness. Envelopes values of group solidarity, compassion, respect, human dignity & collective unity. - Beadica dissenting minority -Victor AJ: Ubuntu leads to context sensitive understanding of unequal bargaining powers between contracting parties; facilitates “a constitutionally transformative result” (para 206 - 208) - issue was not constitutional, but actually enforcement of contractual terms. - Reason developed as value: ○ gives context for sensitive approach to matters ○ helps show & understand that contracting parties can have unequal powers. So when establish what fair and unfair in contract, take these differing powers into account. a) International law - section 39 (1) (b) read with sections 231 - 233 - MUST - not optional - Makwanyane paras 33 – 36: the international law that courts must “consider” in interpretation of Bill of Rights includes both binding and non-binding concerned with legality of death penalty. First case dealt with under final Constitution. Constitutional law 244 Page 3  ○ concerned with legality of death penalty. First case dealt with under final Constitution. - Problem: public international law doesn’t outlaw death penalty. - Amicus curiae pointed to ICCR and that ∆ between public international law (human rights treaties) & our Constitution: @ SA Constitution right to life is unqualified. ○ Human rights treaties mostly deal specifically w/when death penalty can be used, OR say you have right to life that can only be limited by law. - Despite above change, CC said SA law has to outlaw death penalty ○ Therefore, just because have to consider internal law, doesn’t mean have to implement. - Establish that have to consider binding & non-binding international law ○ Binding: international treaties that SA has ratified ○ Non-binding: a.k.a. soft law, e.g. developed by United Nations. - Grootboom, paras 26 – 33 very important: - “The relevant international law can be a guide to interpretation but the weight to be attached to any particular principle or rule of international law will vary. - However, where the relevant principle of international law binds South Africa, it may be directly applicable” - Minimum core obligations = international law concept which speak to minimum that state can do to fulfil certain obligations - Here: obligations relating to adequate housing - Court says these obligations great standard to use but here difficult to ascertain due to right’s nature & can’t use because not enough information to make determination of what obligations would be and if state fulfilled them. - Where relevant international law principle binds SA, may be directly applicable. - Courts refer to even if no party referred to because of s. 39. a) Foreign law - section 39 (1) (c) - MAY - Discretionary consideration - Can provide valuable insights into how other legal systems have approached a particular human rights problem, but must also take different historical and social context, and legal system into account - Can’t be directly legally binding in SA law the way some forms of international law are e.g., human rights treaties incorporated in legislation in terms of s 231(4) - S v Makwanyane: amicus curiae points out death penalty abolished in half of the world’s country - Therefore, foreign law makes clear that majority of democratic countries got rid of death penalty. - Can provide insight as to how other legal systems deal w/similar issues, BUT keep in mind each unique history, social development & legal systems. - Seldom use in human rights issues, because world superpowers have terrible record when it comes to human rights. Not the example we should follow >> discretionary. - Can’t be directly binding in same way as international law. Rather incorporate into legislation, - Ex. human rights treaties in terms of s. 231(4). 3. Claimants, legal standing and amici curiae a) Claimants/beneficiaries General categories for natural persons: 1. All general rights in Constitution: for everyone in country ○ S. 9, 10 & 11 2. No-one rights: no-one may be subjected to - S. 13 ○ Slavery: work no pay ○ Servitude: you work someone else gets paid ○ Forced labour: work & pay but don’t want to be there 3. S. 36 limitation: would have been claimant but due to limitation, can’t go to court 4. Only citizen rights ○ S. 19, 20, 21(3)&(4) & 22. 5. Restricted to certain groups Constitutional law 244 Page 4  5. Restricted to certain groups ○ Children @ s. 28 ○ Workers ○ Arrested, detained & accused ○ Belonging to cultural, religious or linguistic community. Juristic persons categories: - S. 8(4): entitled to right to extent required by nature of right & juristic person ○ Context-sensitive test: how is juristic entity related to natural persons forming it / how does entity help exercise rights? - Strydom v Nederduitse Gereformeerde Gemeente Moreleta Park: church fired music teacher due to homosexuality. ○ Claim that was allowed to due to religious rights was valid because closely linked to natural persons of organisation and helps to exercise rights trying to claim. b) Legal standing - Standing = your specific capacity to bring case before court. ○ Common law: litigant must show a “a sufficient personal and direct interest” - Section 38 - 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. ○ Very narrow scope. Had to show sufficient personal & direct interest. If not >> couldn’t bring matter to court. ○ Ex. company with 500 employees. You are HR manager and have employee who is serial sexual harasser. Want to take action against employee. @ common law wouldn’t have standing, unless show they are harassing you. - Section 38 contains 5 categories ((a)-(e) of persons with standing CC adopts a broad and generous approach to standing to enforce constitutional rights compared to narrow common law approach >> significantly widened standing ○ CC adopts broad & generous approach to standing vs common law narrow approach. Reason: enforce constitutional rights. Requirements of locus standi in human rights litigation: 1. The applicant must allege that a right in the Bill of Rights has been infringed or threatened (you must say which right and how it was infringed) 2. The applicants must be able to demonstrate, with reference to the categories listed in s 38(a) to (e), that they have a sufficient interest in obtaining the remedy they seek (need to fall into 1 of 5 categories) - Although a sufficient interest must be “broadly and generously interpreted”… it must, however, “be real and not hypothetical or academic.” (Giant Concerts v Rinaldo Investments ZACC 28, para 41; TB, pp. 408 – 409) - must interpret sufficient interest broadly & generously BUT can’t be hypothetical/academic ○ Ex. ask for interdict with blank space against persons at university with thousands of people where per chance someone isn’t living by the Bill of Rights. ○ Reason interpret broadly: anyone with(potential) interest that may be affected by any conduct, legislation, common or customary law is allowed to challenge it. - Is 3rd requirement in textbook irrelevant? - Need to discuss both points as requirements for engaging in litigation - Category 5 example = trade union - Sufficient interest = must belong to 1 of the categories - In our tut + exams = only be 1 answer to what category someone belongs to Class Actions – Section 38(c) - Anyone acting as a member of, or in the interest of, a group or class of persons - Suited to cases where there are facts and legal questions common to all members of the class - A single or small number of plaintiffs may pursue an action on behalf of all persons with a common interest in the subject matter of the suit - Normal rule of joinder of parties not applied - The judgment is binding on the whole class unless they do not ‘opt in’ to the class action or they follow the prescribed procedures to ‘opt out’ of the litigation - Key cases: Trustees, Children’s Resource Centre v Pioneer Foods ZASCA 182; - Mukaddam v Pioneer Foods ZACC 23 Pinoneer foods - Formed cartel - Price fixing price of bread - Trustees launched a class action - On behalf of underprivileged people - Needed to give money that they profited off it Mukaddam = also to do with price fixing Public Interest Standing – Section 38(d) - Factors that are relevant to determine whether a person is genuinely acting in the public interest (not a closed list): a) whether there is another reasonable and effective manner in which the challenge can be brought; b) the nature of the relief sought, and the extent to which it is of general and prospective application; c) the range of persons or groups who may be directly affected by any order made by the court and the opportunity that those persons or groups have had to present evidence and argument to the court; Constitutional law 244 Page 5  groups have had to present evidence and argument to the court; d) the degree of vulnerability of the people affected (Ex. Children) e) the nature of the right said to be infringed, as well as the consequences of the infringement of the right (Ex. Education) O’Regan J in Ferreira v Levin NO, par. 234 read with Lawyers for Human Rights v Minister of Home Affairs ZACC 12, para 18 ▪ Factors come from these cases - Reason for factors because need to make distinction between when a the subjectivity in which a person/organisation thinks they are acting in the public interest or if the matter is objectively in the public interest >> Lawyers for human rights - Use factors to argue case - NB!! Equality and human dignity - is a value and a right - Tut 1 - claimants + legal standing c) Amici curiae ("friends of the court") - Have expertise or special interest - Constitutional Court – Rule 10 of Rules of Court (2003) determines who can be amici - Need consent of parties and application to Chief Justice - Assists the Court by furnishing information or argument regarding questions of law or fact; expertise or special interest in matter before the court - Criteria for admission: submissions are relevant and useful to court and different from those of the parties - Not a party to the litigation - NEED TO BE DIFFERENT FORM THE SUBMISSION THE PARTIES HAVE MADE >> YOU ARE NOT ON EITHER SIDE 4. Duty bearers and the application of the bill of rights Point of departure = all rights have vertical application You can enforce what ever rights on the state Wording of section 8 (1) have no limitation of the people Person to person/ company to company Cannot enforce Limitation to rights that can be enforced horizontally >> there are qualifiers for the application Can get direct horizontal + vertical application Need to comply with bill of rights Direct vertical Does the legislation comply with a specific section in the constitution, for example s 9? If it doesn’t = special remedies Direct horizontal Conduct by a juristic person Does the legislation comply with a specific section in the constitution? - check If it doesn’t = special remedies Indirect Are the values of bill of rights being promoted? If no - no special remedies Carmichele So we the develop that law to be in line with the values - Police + public prosecutor had legal duty to prevent perpetrator for causing her harm and the failed to do so - Indirect vertical application - Common law legal duty was too narrow in definition, that it was inappropriate in constitutional context - Therefore, common law had to be developed - Indirect application is used for development Direct vertical application of the bill of rights Direct horizontal application of the bill of rights - Section 8(1): “The Bill of Rights applies to all law, and binds the When does a right in the Bill of Rights apply to a private party? legislature, the executive, the judiciary and all organs of state” - S 8(2): “A provision of the Bill of Rights binds a natural or a juristic - NB! “all law” does not apply to disputes between private person if, and to the extent that, it is applicable taking into account parties governed by the common law or customary law – the nature of the right and the nature of any duty imposed by the function of ss 8(2) read with 8(3): Khumalo v Holomisa right” ZACC 12 (Textbook 412 – 413] - Express wording of particular rights: e.g., ss 9(4); 12(1)(c); 28(1)(b); - Examples: 32(1)(b) ○ Teddy Bear Clinic, Dawood cases – challenge to constitutionality of legislation - S 9 (4) = everyone Teddy bear - sex for children - S 12 (1) = private sources >> horizontal application ○ Dawood - immigration permits >> temporary/permanent permit = challenged it on basis of human dignity Other rights/duties? – A question of interpretation Constitutional law 244 Page 6  permit = challenged it on basis of human dignity - Other rights/duties? – A question of interpretation ○ Minister of Health v Treatment Action Campaign – - Factors (look at s 8(2)): Challenge to executive policy/programme to prevent a. nature of right; mother-to-child transmission of HIV >> part of right to b. nature of duty, health c. context – is the private party capable of infringing the right? - Khumalo v Holomisa ZACC 12: “the intensity of the “all organs of state” – s 8(1)? constitutional right in question coupled with the potential invasions of Definition: s 239 ("definition")- that right which could be occasioned by persons other than the State 1) any department of state or administration in the national, or organs of state” (para 33) provincial or local spheres of government; 2) any functionary or institution exercising a power or performing a - Juma Musjid: application of the right to basic education in s 28(1)(a) function in terms of the Constitution or a provincial constitution to a private trust e.g., chapter 9 institutions ○ Respect for private autonomy 3) Any functionary or institution “exercising a public power or ○ But at very least socio-economic rights imposed negative duty performing a public function in terms of any legislation” to respect existing access ○ ‘Governmental-type’ powers and functions; accountability to ○ to the rights the public (Textbook: 414 – 417) – SOEs ○ See prescribed paras of Juma Musijd in Study Guide ○ Even private companies under certain circumstances: AllPay - CC has even noted that in some circumstances even the positive v SA Social Security Agency ZACC 12, paras 52 – 60 duties imposed by Socioeconomic ights might be applicable to private parties: Daniels v Scribante ZACC 13 Test: Is the person/organisation accountable to the public? - Are the powers woven into system of government control/ Juma Musjid statutory regulation/another one (check textbook)/publicly - Public school on land owned by private trust funded - Act required MEC to ensure that proper measure are in place if school - Can even include private companies (Ex. AllPay v SA…) is built on land that tis not state owned - Court: Body was paying social grants = performing public - HC = gave eviction order function in that capacity - School argued that they couldn’t be evicted because it would infringe Part of company distributing grants was publicly on the students right to education accountable - Trust averred that problem was between students and the state NB!!! In exam, need to be able to determine whether a private - Therefore, did trust as a private party have an obligation in terms of s company would be held accountable 28? - CC socio-economic rights ensure a negative duty on private institutions >> to not infringe on that right Daniel v Scribante - Security of tenure - protection for people who have lived on land for a specific period - Applicant lived on the farm in a house and the farm was bought by a new entity - She wanted to do basic renovations - The owners refuse her - CC: argument -private party was infringing on her right to adequate housing - Here, private party had a positive obligation to make the house habitable How does a right in the Bill of rights apply directly to a private party? - Courts must apply legislation giving effect to the right e.g., Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (“PEPUDA”) “gives effect” to the s 9 right against unfair discrimination by both the State and private actors ○ S 6, PEPUDA: “Neither the State nor any person may unfairly discriminate against any person.” S 8(3): ○ (a) …[court must] “apply, or if necessary develop, the common law [to the extent that legislation does not give effect to that right]” ○ (b) [court may] “develop rules of the common law to limit the right, provided that the limitation is in accordance with section 36(1)” - E.g.: ○ Development of common law of defamation – “reasonable publication”: Khumalo v Holomisa ○ Development of common law remedy of rei vindicatio to give effect to be interests of child and right to basic education (Juma Musjid) Constitutional law 244 Page 7  Indirect application of the Bill of rights Constitution - The Constitution and its values influence the interpretation and development of the other bodies of SA law –legislation, common law and customary law - Pharmaceutical Manufacturers ZACC 1: ○ “There is only one system of law. It is shaped by the Constitution which is the supreme law, and all law, including the common law, derives its force from the Constitution and is subject to constitutional control.” (para 44 /TB, pp 51 – 52) ○ Principle of avoidance (S v Mhlungu ZACC 4: no longer applicable: Textbook 420 – 421) - DA v Public Protector ZACC 25 ○ “The result is that under the final Constitution the approach Mhlungu espoused has long since been abandoned in favour of its opposite, namely that constitutional approaches to rights determination must generally enjoy primacy. Far from avoiding constitutional issues whenever possible, this Court has emphasised that virtually all issues – including the interpretation and application of legislation and the development and application of the common law – are, ultimately, constitutional. This affects how to approach them from the outset” (para 3) - This does not imply that Constitution displaces ordinary law ○ Constitution affects everything ○ Subsidiarity doesn’t allow constitution to displace ordinary law - Important principle still applied by CC = doctrine of subsidiarity (note inaccuracy in TB in this regard: pp, 420 – 421) In tut for next week - don’t mention subsidiarity >> only discuss procedure (sections of the constitution) We will not have to discuss gray area in exam - Eskom case Principle of subsidiarity 1) A litigant must rely on legislation enacted to give effect to a particular right and should not rely directly on the relevant constitutional right 2) Proviso: the litigant can rely directly on the relevant right to attack the constitutionality of the legislation 3) A litigant must rely on legislation enacted to protect a particular right and cannot rely directly on the common law - MEC for Education v Pillay: paras 39 - 40 - Courts ensure that legislature’s role in interpreting and giving effect to constitutional rights is not by-passed - Gives effect to constitutional scheme particularly in context where national legislation must be enacted to give effect to rights, e.g., ss 9(4); 25(9); 32(2); 33(3) - But are grey areas where it is not clear or it is contested whether legislation fully gives effect to constitutional rights: Eskom v Vaal River Development Association ZACC 44, paras 239 - 250 NB!!!! 420-421 in textbook = in gray block >> inaccuracy Subsidiarity + avoidance are not the same - Principle of avoidance = largely done away with >>When it is possible to decide matter without the bill of rights, the it should be avoided - Principle of subsidiarity = When right in bill of rights is given effect by legislation, use the legislation and not the direct reference to the bill of rights - Usually section in constitution that says that section must be followed up by legislation Legislation S 39(2) - The principle of reading in conformity with the Bill of Rights to uphold the constitutionality of the legislation where reasonably possible (TB refers to “reading down”: pp. 485 – 487) - “Since Hyundai, all legislation must be approached through the prism of the Bill of Rights. And it has been ‘gold-plate doctrine’ in this Court that, if a meaning conformable with the Bill of Rights can reasonably be ascribed to legislation, that meaning must be embraced, rather than one that offends the Constitution.” Common - S 39(2) & s 173: General obligation of courts to develop the common law to law (lecturer - align with constitutional rights and values: Carmichele, para 39 - 40 doesn’t like - Constitution creates an “objective normative value system” that must influence the development of the common law and common customary law: Carmichele, para 54– 60; 78 – 84 law - wont - 2 circumstances under which common law falls to be developed: ask long i. common law inconsistent with specific constitutional provision or rights question on ii. common law inconsistent with value system of Constitution this) - Development of common law may result in introducing a new rule; changing an existing - rule; extending the ambit of a rule to include a new set of facts or limiting the ambit to - exclude those facts: K v Minister of Safety and Security ZACC 8 ○ Was to do with vicarious liability ○ Police van with uniformed police "assisted her" ○ Picked her up and raped her ○ Employer is only liable if the harm was caused by the employee in course and scope of their employment In court a quo, said that minister could not be held vicarious liable Constitutional law 244 Page 8  ○ In court a quo, said that minister could not be held vicarious liable ○ CC: only reason she entered into marked police van because they were police officers >> therefore, she assumed that she would be safe ○ Inconsistent with values of the constitution - Indirect application of constitutional values to the common law in terms of s 39(2) will usually consist of common law concepts being interpreted and applied in light of constitutional values - For example: when should a term in a contract between private parties be regarded as unenforceable by the courts because it is against “public policy”? ○ Fairness is not a element but human dignity etc is considered. Barkhuizen v Napier: public policy must now be determined by reference to the values that underly our constitutional democracy as given expression by the provisions of the Bill of Rights (para 23 – 30) Customary - See dissenting minority judgment of Victor AJ in Beadica unsuccessfully attempting to use the value of ubuntu to declare a law contractual term contrary to public policy and therefore unenforceable - Applying constitutional values to develop customary law: Mayelane v Ngwenyama ZACC 14, para 24: ○ customary law must be understood in its own terms, and not through the lens of the common law ○ so understood, it is nevertheless subject to the Constitution and has to be interpreted in light of its values - If a customary law rule is subject to a common law rule, it is not automatically disregarded >> need to see it complies in line with the constitution - “Are the first wife’s rights to equality and human dignity compatible with allowing her husband to marry another woman without her consent? We think not. The potential for infringement of the dignity and equality rights of wives in polygynous marriages Is undoubtedly present…. While we must accord customary law the respect it deserves, we cannot shy away from our obligation to ensure that it develops in accordance with the normative framework of the Constitution.” Mayelane v Ngwenyama, para 71 Constitutional law 244 Page 9