Bill of Rights: Topic 1.

1
Basic Structures of Bill of Rights Litigation: Application

 The Structure of Bill of Rights Litigation

When a person alleges that their fundamental rights have been infringed the
courts must follow a process consisting of three stages:
1. Procedural Stage: The court must answer questions:
a. Can the alleger go to court to claim infringement?
b. Is the alleged perpetrator bound by the duties imposed by the
right?
2. Substantive Stage: The court must answer questions:
a. What is the scope of the right? Does the law or conduct infringe the
right?
b. Is the limitation justifiable in terms of s36?
3. Remedy Stage: This only applies if the conduct or law is found to
unjustifiably infringe a fundamental right or fails to promote values in
the BOR.

There are also operational provisions of the BOR which deal with the way in
which the BOR functions and how the courts can deal with them.

S7  The state has a duty to respect, protect, promote and fulfil the BOR.
S8  Those who are bound by the right.
S36  Limitation clause.
S37  Suspension of rights in state of emergency.
S38  Who has the status to enforce the rights.
S39  Interpretation of rights.

Sections 167 and 172 deal with the jurisdiction of the courts and the remedies
that can be granted in the case of unjustifiable infringement.

 Application of the Bill of Rights

Ordinary Law: Legislation, common law and customary law.
During this stage the courts consider who is entitled to claim, who is bound
and whether it is directly or indirectly applicable to the dispute. If the BOR
applies directly then the court must look at whether or not the ordinary rules of
law are consistent with the BOR – if not, the BOR will prevail and provides a
set of remedies. If the right BOR indirectly then courts must determine
whether or not the ordinary rules of law promote the BOR – if not, BOR does
not override or give rise to special remedies. Rather the courts must use the
BOR as a tool to develop the rules and remedies of ordinary laws to avoid
inconsistency between BOR and ordinary law.
o Who Is Entitled to Claim the Rights in the Bill of Rights?
The term ‘everyone’ refers to all present in South Africa, however some
rights apply only to citizens, children or detained persons. ‘Everyone’
usually refers to natural persons but can also apply to juristic persons.

Ø Natural Persons
Most rights in the BOR apply to ‘everyone’. This includes
citizens, immigrants, permanent residents, those with study
permits and even those who have not been lawfully admitted. A
foetus is not benefitted.
Some rights are directed towards natural persons falling into
certain groups: citizens [s19(1)(a)]; workers [(s23(2)(a)] or
children [s28(1)(a)].
SA National Defence Union v Minister of Defence  The CC
had to decide if members of the armed forces fell into the
definition of a ‘worker’ to benefit from s23(2)(a). The court found
that as the members of the armed forces received the same
benefits as other types of employees and are therefore workers.

Ø Juristic Persons
An artificial entity through which the law allows a group of
natural persons to act as one entity. A juristic person cannot
claim all rights, however in certain circumstances is protected
by the BOR.
S8(4) provides the way in which the courts must decide whether
or not a right applies to a juristic person:
1. The nature of the right.
Some rights are only applicable to natural persons as
juristic persons do not need health care (s27). Other
rights, such as freedom of association (s18) can apply.
2. The nature of the juristic person.
Not all juristic persons can claim rights. If it is established
by natural persons in order to give expression to rights
then it will benefit from the BOR. Organs of state are not
entitled to these rights as their function is promote and
protect BOR and are therefore bound and not benefitted.

Ø Standing to Enforce Rights

S38 causes s8(4) to be redundant as it lends generosity when
considering those who have legal standing when acting on/in:
1. Own interest.
2. Behalf of someone who cannot act.
3. As a member or on behalf of a group.
4. Public interest.
5. Association action in members’ interest.
Instead of the requirement of direct personal interest in s8(4), a
person just needs to allege that a right in the BOR has been
infringed or threated and show that they have sufficient interest
as per s38. This means that the allegation doesn’t have to refer
to the rights of a certain person. The applicant must show that
the right was infringed/threatened and one group in s38 will
have sufficient interest in a remedy.
Giant Concerts v Rinaldo Investments  The CC held that own-
interest litigants do not have unlimited capacity to litigate, but
must show sufficient interest in the remedy. In order to
determine standing, the conduct is assumed unlawful.
Thereafter the case is decided on its merits if standing is
proven. There are two consequences of the separation:
1. Just because the act or decision is unlawful it does not
mean that the applicant has standing or sufficient
interest.
2. Own-interest litigants can be denied legal standing if they
do not have sufficient interest in a remedy.

 Own-interest litigants do not have unqualified capacity to

litigate, the CC shows the requirements in a number of
cases:
1. The litigant must show a direct effect of an act or
decision on rights and interests.
2. This must be done broadly to achieve
constitutional goals.
3. The interest must be real.
4. The interest doesn’t have to have financial value,
claims can be made in the interest of justice.
5. Standing is used to determine whether one party
is entitled to a claim against another.
6. Cases must be judged on their own merits.

 Public-interest litigants, according to a minority

judgement in Ferreira v Levin, must be done with
genuine intentions. The CC has accepted these as valid
as they did not conflict with the majority judgement The
following must be considered:
1. Another reasonable and effective way of dealing
with the problem.
2. The nature of the remedy is of general application.
3. The range of people affected (indirectly as well).
They must also be able to bring evidence or
argue.
o Who is Bound by the Bill of Rights?
After considering who can claim the rights, the courts must consider
who is obligated to respect them. The state is always bound, while
private persons are not always. The courts must differentiate between
direct and indirect application of the rights:
1. Direct Application looks that consistency between ordinary rules
of law and the BOR. The BOR will always override the ordinary
rules in case of conflict and gives rise to special remedies.
2. Indirect Application looks at whether or not the values of the
BOR are promoted in the ordinary rules of law. If not the BOR is
used to develop the ordinary rules.

The difference between vertical and horizontal application is also

looked at:
1. Vertical Application refers to the obligation on the state to
protect, respect, promote and fulfil the rights of private persons.
The BOR can only be directly applied in a dispute if the state is
a party. This is a vertical dispute.
2. Horizontal Application is the obligation imposed on private
persons to respect the rights in the BOR in certain
circumstances. The BOR can be directly applied if both parties
are private persons. This is a horizontal dispute.
The Constitution looks at the direct vertical application in s8(1); the
direct horizontal application in s8(2) and the indirect vertical and
horizontal application in s39(2).

Ø Direct Vertical Application

S8(1)  The BOR applies to all law and binds the branches of
government and organs of state. This section applies to
disputes between the state and private parties – regardless of
governance by legislation, common or customary law – and
disputes between private parties governed by legislation.
The CC held that the direct application between private persons
governed by common or customary law are not included in this.
S8(2)  Direct application to horizontal disputes where parties
are governed by common or customary law. The direct
application of the BOR to the judiciary when solving such
disputes is also included.

Khumalo v Hlomisa  Hlomisa is a politician who sued

Khumalo for defamatory statements made in a newspaper.
Khumalo appealed, stating that the common law rules of
defamation infringed s16 (freedom of expression) because the
onus is placed on the plaintiff to prove the statements to be
untrue, rather than on the defendant to prove that they are true.
This exception was dismissed, however the CC had to
determine whether or not s16 applies directly to disputes
governed by common law and neither party is the state:
1. Does s8(1) or (2) govern direct horizontal application?
The CC found that s8(2) applies as this provision binds
natural and juristic persons taking into account the nature
of the rights and duty imposed.
The CC then found that s8(3) must be applied and if it is
necessary, the common law must be developed to limit a
right according to s36.
If s8(1) applied directly to horizontal disputes it would
lead to an absurdity as it would have to be applied in all
circumstances and would cause the 8(2) and 8(3) being
read together to be redundant.

2. If s8(2) applies, does s16 suit the requirements?

Khumalo, as a member of the media, has the right to
freedom of expression, which is limited by defamation.
The CC found that this is governed by s8(2) and is a
direct horizontal application case.

 All Organs of State

S239  Organs of state are ultimately divided:
1. State administration in any sphere.
2. Power or function given in Constitution.
3. Public power or function given in legislation.
The courts and judges are not included.

Bodies that fall into the third category are difficult to

identify as it’s unclear if they are exercising public power
or performing a public function as per any legislation.

Calibre Clinical Consultations v National Bargaining

Council for the Road Freight Industry  The SCA
considered the way of seeing which bodies exercise
powers/perform functions. The respondent established
an antiretroviral programme, the applicant applied to
implement it. The respondent said that in principle the
appellant got the tender, but due diligence would be
done first. The appellant’s financials were problematic
and after trying they failed to fix them and the tender was
awarded to someone else.
The appellant went to SGHC to have the decision set
aside for infringing the right to procedural fairness in
Promotion of Administrative Justice Act (SAJA). The
application was dismissed. Remedy was sought at the
SCA, which dismissed the appeal as well. A decision can
 only be reviewed in terms of PAJA if it’s an administrative
act, which would require it to be made by an organ of
state.

The public power/function was not derived from the

Constitution, therefore the court considered whether it
was a result of legislation. The extent to which the
power/function is ‘public’ must be determined. Local and
international courts look at how governmental the
power/function is. The courts consider to what extent the
power/function:
1. Is woven into a system of governmental control.
2. Integrated into a system of statutory regulation.
3. Regulated, inspected, supervised by government.
4. Linked to that of government.
5. Publically funded.
This approach allows for the court to consider whether
there is accountability to the public with which the
functionary has no special relationship. Therefore the
exercise of power or performance of functions is only
public if the body or institution is accountable to the
public.

Ø Direct Horizontal Application

S8(2)  Natural and juristic persons are bound by the BOR
when applicable, taking into the nature of the right and the duty
it imposes.
This qualification means that the BOR does not apply directly to
every horizontal case, only when it’s applicable – looking at the
nature of the right and duty. This is unclear and has only been
considered in 2 cases:
Khumalo
Governing Body of the Juma Musjid Primary School v Essay 
The CC had to consider whether Right to Education (s29)
applied directly to common law on evictions, even when the
state was uninvolved. It did.
When looking at whether the BOR applies directly in a
horizontal dispute, the court looks at the purpose of s8(2) – not
to obstruct private autonomy, impose state duties on privates
and ensuring that no one infringes another’s enjoyment of
rights. The CC also looked at what was considered in Khumalo,
the balance of the right and its invasion by privates.
S29 falls into this as there is a negative obligation on privates
not to infringe on this when exercising common law powers.
  the court cannot directly impose positive obligations on
natural/juristic persons. It can directly impose negative
obligations, but must consider the intensity of the right and
extent of the potential invasion.

Ø Indirect Application
S39(2)  When interpreting and developing ordinary law the
court must promote the spirits and purport the object of the
Constitution.
When the BOR does not directly apply the court will use the
BOR to indirectly influence its interpretation and development
without declaring the law invalid. When applying indirectly, the
relationship between ordinary law and BOR is governed by
principles in ordinary law nut the courts must still promote the
BOR. Indirect application is not based on an enquiry but is
invoked by the values underlying the BOR in order to bring the
law in line with these values.

 Indirect Application to Legislation

In order to promote the spirit and purport the object of the
BOR judicial officers are obliged to look at the objects
and purport of legislation in conformity with the BOR.

Reading in conformity with the BOR means that

interpretation must be done in line with the values of the
BOR, within reason. There must be a balance between
reading law in conformity with the BOR and the duty of
the legislature to pass reasonably clear laws. Law could
be unconstitutional if interpreted one way, yet valid when
looked at in conformity with the BOR.

Reading down v reading in

 Indirect Application to Common and Customary Law

S39(2) imposes a duty on the courts to develop the
common and customary law to align with the BOR,
however this is not meant to be done in every case –
only when necessary. However, the courts must always
be alert to when there is a contradiction and amend this.

Thebus v S  The Constitution is an objective normative

value system and the common law must be developed to
align with this value system. This is done either when
there is a direct contradiction or when the common law
does not promote the spirit, purports and object. This is
done in a two-stage enquiry:
Inconsistency:
1. Does the common law limit a right?
2. If so, is this justifiable? If not, the court must
develop.

Falls short:
1. Should the common law be developed according
to the objectives of s39(2)?
2. If so, how should it be developed and by which
court?

K v Minister of Safety and Security  The CC said that

other ways of developing can be to introduce a new rule,
change an existing one, extend/limit the scope of a rule
to include/exclude facts.