Theme 9.pdf

STUDY THEME 5 STRUCTURE OF LITIGATION INVOLVING CONSTITUTIONAL RIGHTS AND LIMITATION PROF MALAN NOTES STUDY THEME 5 P56 SA CONSTITUTIONAL LAW IN CONTEXT P 399-402 CASE STUDY 1 u The evictees had been evicted from a building in which they resided; The eviction was subject to the condition that the...

STUDY THEME 5 STRUCTURE OF LITIGATION INVOLVING CONSTITUTIONAL RIGHTS AND LIMITATION PROF MALAN NOTES STUDY THEME 5 P56 SA CONSTITUTIONAL LAW IN CONTEXT P 399-402 CASE STUDY 1 u The evictees had been evicted from a building in which they resided; The eviction was subject to the condition that the City of Johannesburg provide them with temporary alternative accommodation in a location as near as feasibly possible to the building in which they had lived. u The City provided temporary accommodation at the Ekuthuleni Shelter. The Shelter is run by Metropolitan Evangelical Services (MES), with whom the City had concluded a contract to provide the temporary accommodation. u Upon arrival at the Shelter, the evictees were told that, in exchange for living there, they had to comply with certain rules. CASE STUDY 1 u The first rule required residents to live in separate dormitories based on sex (the family separation rule). This prevented heterosexual couples from staying together and separated children over the age of 16 from their caregivers of the opposite sex; u The second rule prohibited residents from being inside the Shelter from 8h00 to 17h30 every day and required the gates of the Shelter to be locked again at 20h00 (the lockout rule). Any occupant who had not returned by 20h00 was locked out and had to find accommodation elsewhere for the rest of the night. CASE STUDY 1 Procedural stage u Can the evictees go to court to claim that their rights were infringed? u Which court has jurisdiction to determine an actual or threatened infringement of the rights in the Bill of Rights; u Is the person or organization which allegedly infringed the evictee’s rights bound by the duties imposed by the right? u Once the court a quo has declared the law or conduct invalid, is, this the end of the process? Case study 1 Substantive stage u What is the scope and content of the right and does the law or conduct infringe the right? u If it does, can the infringement be justified in terms of the limitation clause set out in section 36 of the Constitution? Case study 1 Remedy stage u If the court finds that law or conduct does unjustifiably infringe a right, how can the court remedy the infringement? Case study 2 u The dispute in this matter arises from the alleged incorrect billing of the resident’s account number 207 093 611 relating to water usage on the property known as Erf […] Belle-Vue Township, situated at […], Belle-Vue (“the property”); u The dispute with the City of Johannesburg was logged during July 2017 when the applicants noted an excessive increase in the water usage billed to their account; u The resident’s were provided with query reference number 8003412459 but were never provided with the answer regarding the real reason for an abnormal water usage CASE STUDY 2 Procedural stage? Substantive stage? Remedy stage? CASE STUDY 3 u New Nation Movement NPC, Ms Chantal Dawn Revell, GRO and Indigenous First Nation Advocacy SA, argue that the Electoral Act is unconstitutional for unjustifiably limiting the right to stand for public office; u This argued was based on the fact that the Electoral Act requires that adult citizens be elected to the National Assembly and Provincial Legislatures only through their membership of political parties. CASE STUDY 3 u Procedural stage? u Substantive stage? u Remedy stage? 3 STAGES OF LITIGATION u1. PROCEDURAL (APPLICATION STAGE) u2. SUBSTANTIVE STAGE u3. REMEDY STAGE APPLICABLE CONSTITUTIONAL SECTIONS WHEN DEALING WITH LITIGATION???? u Section 7; state’s duty u Section 8; who is bound by the rights? u Section 36; limitation of rights u Section 37; state of emergency u Section 38; standing u Section 39; interpretation of rights APPLICABLE CONSTITUTIONAL SECTIONS WHEN DEALING WITH LITIGATION???? u Section 167, 168, 169 and 172 of the Constitution….. STAGES OF LITIGATION- MALAN NOTES u Infringement; u Limitation SECTION 36 LIMITATION ANALYSIS u 1. Law of general application; u 2. Reasonable and justifiable in an open and democratic society 2.1 proportionality analysis/test i. Nature of the right; ii. The importance of the purpose of the limitation; iii. The nature and extent of the limitation; iv. The relationship between the limitation and its purpose; v. Less restrictive means to achieve the purpose LIMITATIONS u Section 36 (1) – extra- constitutional limitation u Section 36 (2)- intra constitutional limitation SECTION 35 u Unlawfully obtained evidence…..