LU 2: Application - South Africa 1996 PDF

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 par...

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