Theme 1 & 2: South African Judicial Authority

Constitutional supremacy vs Parliamentary

supremacy
 S 1(c) of Constitution: SA is a republic founded on constitutional supremacy
 S 2 of Constitution: Constitution is supreme law in Republic; law or conduct inconsistent with it is invalid, and obligations
imposed by it must be fulfilled
 Rules in Constitution establish and constrain exercise of state power – state can only act in terms of its Constitution, otherwise
conduct is legally invalid
 Parliamentary supremacy / sovereignty: where legislature has supreme law-making power
- There is no rule that parliament cannot make or repeal
- Adopted by the Westminster model
- Adopted by RSA during Apartheid
 Core difference between the two:
- In parliamentary sovereignty, ultimate authority for law-making lies in legislature
- In constitutional supremacy, ultimate authority for law-making lies in constitution of the state

Separation of powers
 Common model for separation of powers is known as trias politica, which establishes 3 independent arms of state:
Arm of State Powers and duties Personnel
Legislature Makes law Members of parliament
Judiciary Interprets laws Judges
Executive Enforces Law Cabinet members or ministers

 Each arm holds other arms accountable through checks and balances (e.g., South African legislature can remove judges guilty
of gross misconduct; judiciary can prevent legislature from passing laws that are contrary to Constitution)
 Throughout history, power was often concentrated in a single ruler – monarchs had power to make, interpret, and enforce laws
 People residing in jurisdiction of monarch were subject to their whim, with no avenues for challenging a monarch’s decision

Transformative constitutionalism
 Constitution seeks to transform RSA from its deeply divided, unequal past into a society founded on equality, dignity, and
freedom
 In this sense Constitution, unlike many other constitutions, does not seek to maintain a status quo
 Constitution is an ambitious legal document that aims to change material conditions of South African society
 Transformative goals of South African Constitution, and means by which Constitution seeks to achieve transformation, have
often been described as ‘transformative constitutionalism’
 Transformative constitutionalism includes an endorsement of justiciable socio-economic rights and substantive equality
 Endorses a form of legal reasoning that is conscious of interplay between morality and law
 Demands that lawyers are aware of how law plays a role in affecting power relations, access to resources, and human dignity,
and that legal reasoning is heavily influenced by a lawyer’s political and moral convictions, especially when the law is
ambiguous or vague
 Entails using law to ensure that society moves towards a better version of itself
 Transformative constitutionalism and
judiciary – Kibet and Fombad
 Focuses on substantive equality and substantive justice
 Comprises of a deliberate effort to empower previously excluded segments of society through devices such as protection of
socio-economic rights
 Requires less emphasis on technicalities and procedure to maximize the realization of substantive rights
 Transformative constitutionalism places a lot of faith in the law as an instrument for social and political change
 Its criticism however is that it obscures law and politics
 Judgments reflective of transformative constitutionalism:
- National Coalition for Gay and Lesbian Equality
- S v Makwanyane
 Transformative constitutionalism requires judges, as guardians of socio-political transformation project, to commit to doing
more with the law, which requires a historical self-conscious judge who pays regard to the legal history
 It is a form of activism in the adjudication of rights
 Proportionality test entails fundamental rights should only be limited where reasonable and justifiable

Mechanical interpretation and application of

the law
 Because judiciary operated under system of parliamentary supremacy, it meant that by upholding blatantly discriminatory and
unjust legislation, judiciary functioned as part of apartheid order and contributed to legitimizing and sustaining it
 Judges were regarded as mere mechanical interpreters of the law – function was merely ascertaining intention of apartheid
legislature through text of legislation and then to give effect to that intention, no matter how nefarious it might have been
 Most judges believed that they could employ only limited interpretational aids in event of the ambiguity or inconsistency, or if
adherence to the ordinary meaning of the text would result in absurdity
 They adhered to the notion that any modifications, corrections, or additions to text should be left to legislature as government
branch responsible for making law

Judicial transformation
 S 174(2) of Constitution provides that judiciary must broadly reflect racial and gender composition of South Africa, which
must be considered when judicial officers are appointed
 This stems from fact that in pre-democratic era, judiciary was composed almost entirely of white males drawn from the elitist
and privileged ranks of the ruling minority
 Judicial appointees were drawn primarily from ranks of senior counsel practicing as advocates at various bars in South Africa

Decolonization and the judiciary

 Colonial encounter fundamentally changed way in which customary law was applied and developed in apartheid South Africa
 Customary law was preserved, upgraded, and frozen out of relevance to the flux of the traditional community’s life
 This was evidenced by cases such as Bhe v Khayelitsha Magistrate and Shilubana v Nwamitwa which focused on development
of customary law through the lens of either the common law or Constitution
 This puts focus on relevance of judicial structures that would be able to truly deal with living customary law as reflected by
opinions and evidence given by villagers on customs
 Judicial authority and s 165 of the
Constitution
 Judiciary oversees legal adjudication which entails them to find law, interpret law and then apply law
 Judicial authority is exercised by courts, who are known as judicial bodies
 Judicial authority entails power to resolve disputes through determining how law should be applied to a specific dispute
 In process of adjudication, judiciary makes law in the secondary sense

165(1) Judicial authority vests in the courts

(2) Courts must be independent and impartial and subject only to the Constitution
(3) Guarantee against the interference with the functioning of courts
(4) Organs of the state must assist with ensuring the independence of the courts
(5) An order of courts binds all persons
(6) Chief justice is the head of the judiciary

Importance of the judiciary in a democratic

country
 In accordance with judgment in Pharmaceutical Manufacturers of South: In re: Ex parte President of the Republic of South
Africa, the following key features have emerged since coming into existence of the South African Constitution:
- rejection of the principle of parliamentary sovereignty
- rule of law
- control of public power
- judicial review of legislation and testing of conduct against the Constitution
 S 34 of Constitution guarantees the right to access to courts with regard to constitutional matters (not restricted to civil and
criminal matters)

S 166 of the Constitution

 Provides that the courts are:
- The Constitutional Court
- The Supreme Court of Appeal
- The High Court of South Africa, and any High Court of appeal that may be established by an Act of Parliament to hear
appeals from any court of a status similar to the High Court of South Africa
- The Magistrates Court
- Any other court established or recognized in terms of an Act of Parliament, including any court of a status similar to
either the High Court of South Africa or the Magistrates Court

Constitutional Court
 S 167 of Constitution
 Headed by the Chief Justice
 Chief Justice exercises responsibility over establishment and monitoring of norms and standards for exercise of judicial
functions of all courts – s 167(1) of Constitution read with s 165(6)
 The seat of the CC is in Johannesburg

 Direct access: circumstances in s 167(6)(a) and s 167(6)(b) of Constitution, which allows a person to bring a matter directly to
CC when it is in interests of justice and with leave of CC or to appeal directly to CC from any other court

167(1) CC consists of the Chief Justice, Deputy Chief Justice, and 9 other judges
 (2) 8 judges must hear a matter
(3) CC is highest court in constitutional matters
(4) Exclusive jurisdiction of CC
(5) Only CC gives effect to order of invalidity
(6) Direct access for public to CC
(7) Jurisdiction of CC involves issues of interpretation, protection, or enforcement of the Constitution

CC’s jurisdiction
 Constitutional jurisdiction: Power or competence of a court to hear, adjudicate, determine, and dispose of a legal dispute
 Constitution grants jurisdiction only to certain courts to award certain remedies pertaining to Constitutional matters
 Can be divided into concurrent and exclusive jurisdiction
 Constitution provides for concurrent exercise of jurisdiction of HC, SCA, and CC in respect of direct challenges to
constitutionality of legislation
 Any challenge to a provision of an Act of Parliament, provincial legislature, or delegated legislation would usually first be
lodged in the HC
 If HC or SCA declares legislation invalid, CC must confirm this before such order will have effect

Exclusive jurisdiction
 Reasons / goals – Women’s Legal Trust v President of the RSA
- Draw on Court’s political legitimacy
- Reflects its special status as guardian of the Constitution
- Avoid tension with other arms of government
 Examples:
- Decide disputes between organs of state in national or provincial sphere concerning constitutional status, powers, or
functions of any of those organs of state
- Decide on constitutionality of any parliamentary or provincial Bill referred to it by President or relevant Premier in terms
of s 79 or 121 of Constitution
- Decide on applications by members of NA or at least 20% of members of the provincial legislature
- Decide on the constitutionality of any amendment to the Constitution
- Decide that the Parliament has failed to fulfil a constitutional obligation
- Certify a provincial constitution in terms of s 144

Supreme Court of Appeal

 S 168 of Constitution
 The Appellate Division was renamed SCA – s 166(b) of Constitution
 SCA is headed by President of SCA who is assisted by Deputy President of the SCA – s 168(1) of Constitution
 The seat of the SCA is in Bloemfontein
 Both the CC and SCA have jurisdiction across the Republic

Constitutional jurisdiction
 Was court of final instance in non-constitutional matters, while CC was court of final instance in constitutional matters
 In terms of the interim Constitution, the SCA had no jurisdiction to deal with constitutional matters
 The 1996 Constitution changed this arrangement and awarded SCA jurisdiction to deal with constitutional matters

S 168(1) Provides for a President, deputy President, and other judges of SCA as determined in terms of national legislation
(2) Provides for a quorum of SCA as per national legislation
(3) SCA decides only on appeals
 High Court
 S 169 of Constitution
 HC functions as a superior court and acts as a court of first instance and as a court hearing appeals from lower courts
 HC consists of 9 divisions and 6 local divisions which form part of a single HC
 HC have geographically limited jurisdiction
 Each Division of the HC consists of a Judge President and one or more Deputy Judges President
 Divisions of HC:
- Eastern Cape Division, with its main seat in Grahamstown
- Free State Division, with its main seat in Bloemfontein
- Gauteng Division, with its main seat in Pretoria
- Kwazulu-Natal Division, with its main seat in Pietermaritzburg
- Limpopo Division, with its main seat in Polokwane
- Mpumalanga Division with its main seat in Nelspruit
- Northern Cape Division, with its main seat in Kimberley
- North West Division, with its main seat in Mahikeng
- Western Cape Division, with its main seat in Cape Town

S 169(1) HC may decide on constitutional matters in terms of s 167(6) of Constitution

(2) Provides for different HC divisions determined by Act of Parliament
(3) Provides for a judge President, Deputy Judge President, and number of judges as specified in terms of an Act of
Parliament

Magistrate’s Court and other courts

 Magistrates’ courts and all other courts are empowered in terms of s 170 of Constitution to decide any matter determined by an
Act of Parliament
 Magistrates’ courts may not enquire into or rule on the constitutionality of any legislation or conduct of the President

Superior specialist courts

 The Labour Court established in terms of s 151 of the Labour Relations Act
 The Land Claims Courts established in terms of s 22 of the Restitution of Land Rights Act
 The Tax Court established in terms of s 8(3) of the Income Tax Act
 The Children’s Court
 The Maintenance Court
 The Domestic Violence Courts established in terms of the Domestic Violence Act
 Apart from the Equality Courts, the above courts do not usually play a direct role in adjudication of constitutional issues

Power of courts in constitutional matters – s

172
S 172(1) When deciding a constitutional matter within its power, a court
(a) must declare that any law or conduct that is inconsistent with Constitution is invalid to extent of its inconsistency; and
(b) may make any order that is just and equitable, including
(i) an order limiting the retrospective effect of the declaration of invalidity; and
(ii) an order suspending declaration of invalidity for any period and on any conditions, to allow competent authority
to correct the defect.
(2)(a) SCA, HC or a court of similar status may make an order concerning constitutional validity of an Act of Parliament, a
provincial Act, or any conduct of President, but an order of constitutional invalidity has no force unless it is confirmed by the CC
 (b) A court which makes an order of constitutional invalidity may grant a temporary interdict or other temporary relief to a
party, or may adjourn the proceedings, pending a decision CC on the validity of that Act or conduct
(c) National legislation must provide for the referral of an order of constitutional invalidity to CC
(d) Any person or organ of state with a sufficient interest may appeal, or apply, directly to CC to confirm or vary an order of
constitutional invalidity by a court in terms of this subs

Case study
Doctors for Life International v The Speaker of the NA and Others
 Applicants brought an application to court challenging constitutional validity of 4 health Bills on basis that Parliament had
failed to fulfil its obligation to facilitate public involvement when passing the bills
 Court agreed and held that CC is only court which can hear a challenge of this nature because it involved a decision on
whether Parliament had failed to fulfil a constitutional obligation
Sonke Gender Justice NPC v President of the Republic of South Africa and Others:
 In terms of s 167(5) and 172(2)(a) of Constitution, CC must confirm any order of constitutional invalidity made by the HC in
respect of legislation before that order has any force
 Application for confirmation is directed at confirmation of the order, not the reasoning

EFF v Speaker of the NA and Others; DA v Speaker of NA and Others

 Public Protector’s report on Nkandla was submitted to President and NA, but neither did what they were required to in terms
of remedial action
 S 167(4)(e) states that only CC may decide that Parliament or President has failed to fulfil a constitutional obligation
 However, s 172(2)(a) confers jurisdiction on SCA, HC and courts of similar status to pronounce on constitutional validity
conduct of the President, which must be confirmed by CC
 CC does not have exclusive jurisdiction on this matter

Women’s Legal Centre Trust v President of the RSA and Others; Faro v Bignham N.O. and others; Esau v Esau and Others
 S 172(2)(a) provides that a HC may make an order “concerning constitutional validity of any conduct of the President” but that
such an order is of no force unless confirmed by CC
 Term “any conduct of the President” was discussed by CC in Pharmaceutical Manufacturers where it held that this s “is to be
given a wide meaning as far as the conduct of the President is concerned
Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture and Fraud in the Public Sector including
Organs of State
 Questions whether Mr Zuma is guilty of contempt of court for failure to comply with order that CC made which directed him
to comply with summonses issued by Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the
Public Sector including Organs of State (Commission) and to appear and give evidence on dates determined by Commission
 S 167(6)(a) of Constitution provides for direct access to CC: “National legislation or rules of CC must allow a person, when it
is in the interests of justice and with leave of CC to bring a matter directly to CC
 The matter is self-evidently extraordinary – it is thus in the interests of justice to depart from ordinary procedures

Appointment of judges
S 174(1) Fit and proper and appropriately qualified women or men may be appointed as judicial officers; only South Africans may
be appointed as judges of CC
(2) Appointment of judicial officers must take into account gender and racial representation
(3) President appoint Chief Justice and Deputy Chief Justice after consultation with JSC and NA, and President and Deputy
President of SCA after consultation with JSC
(4) Other CC judges appointed by President of Republic after consultation with Chief Justice and some members of NA and
procedures as follows:
(a) JSC must provide list of nominees with 3 extra names and submit list to President
(b) President may make appointments from the list and provide reasons for any non-appointment
(c) JSC must provide supplement list within which President will make appointments from
(5) At least 4 members of CC must have been judges
(6) President appoints judges of all other courts on advice of JSC
(7) Other judicial officers must be appointed in terms of an Act of Parliament
 (8) Judges must take an oath to affirm that they will uphold and protect the Constitution
Cape Bar Council v JSC and Others:
 JSC must make recommendations for appointment of judges in terms of s 174
 President appoints judges after consultation with JSC and, if applicable, NA, Chief Justice, etc.

Oath of solemn affirmation of judicial officers

Schedule 2 s 6:
S 6(1) Provides for wording of the oath and that oath should take place before Chief Justice
(2) An appointed person to office of Chief Justice who is not already a judge must swear / affirm before Deputy Chief Justice
(3) Other judicial officers including acting judicial officers other than judges must swear/affirm in terms of national legislation

Appointment of acting judges

S 175(1) Appointment of acting Deputy Chief Justice or judge of CC is made by President and must be in terms of
recommendation by Cabinet member responsible for administration of justice and Chief Justice. Appointment of Deputy Chief
Justice must be from ranks of those appointed to CC in terms of s 174(4)
(2) Cabinet member responsible for administration of justice appoints acting judge to other courts after consulting senior
judge of the court on which acting judge will serve

Terms of office and remuneration

S 176(1) CC judge holds office for non-renewable term of 12 years or until age of 70, whichever comes first, unless an Act of
Parliament extends term of office
(2) other judges hold office until discharged in terms of an Act of Parliament
(3) Salaries, allowances, and benefits of judges may not be reduced
Justice Alliance of South Africa v President of RSA and Others; Freedom Under Law v President of RSA and Others; Centre For
Applied Legal Studies and Another v President of RSA and Others
 S 176(1) of Constitution is of importance

 S 4 of Judges’ Remuneration and Conditions of Employment Act provides that a CC judge, whose 12-year term of office
expires or who reaches age of 70 years before completing 15 years’ active service, must continue in office until completion of
15 years’ active service or until that judge attains the age of 75 years, whichever is sooner;

 S 8(a) of Act provides that a Chief Justice who becomes eligible for discharge from active service may, at request of President,
continue to perform active service as Chief Justice of South Africa for a period determined by President, which shall not
extend beyond date on which Chief Justice attains age of 75 years

 President requested Chief Justice in writing to remain in office for an additional period of five years
 It is declared that s 8(a) of Act is inconsistent with the Constitution and invalid, thus decision of President has no force

Removal of judges
S 177(1) A judge may be removed from office only if
(a) the JSC finds that the judge suffers from an incapacity, is grossly incompetent or is guilty of gross misconduct; and
(b) NA calls for that judge to be removed, by a resolution adopted with a supporting vote of at least 2/3 of its members
(2) President must remove a judge from office upon adoption of a resolution calling for that judge to be removed
(3) President, on advice of JSC, may suspend a judge who is subject of a procedure in terms of subs (1)

 Hlophe v JSC and Others:

 - S 177(1)(a) plainly provides that a judge can be removed if the JSC finds that they are guilty of gross misconduct
- That finding is a jurisdictional precondition to NA contemplating a resolution to remove a judge
- The decision as to whether misconduct occurred is that of the JSC alone
- S 177(1)(b) provides that when NA resolves to remove a judge, it must be with a supporting vote of at least 2/3 of its
members
- In terms of s 177(2), President of the Republic must then remove the judge from office upon the adoption of such a
resolution
- There is no provision in s 177 for a re-hearing of the complaint by the NA
 Motata v Minister of Justice and Constitutional Development and Others:
- Removed Motata in terms of s 177 of Constitution for gross misconduct

JSC plays a role in appointments and removal

178(1) There is a JSC consisting of-
(a) the Chief Justice, who presides at meetings of the Commission
(b) President of SCA
(c) One Judge President designated by the Judges President
(d) Cabinet member responsible for the administration of justice, or an alternate designated by that Cabinet member
(e) 2 practising advocates nominated from within advocates’ profession to represent profession as a whole, and appointed
by President
(f) 2 practising attorneys nominated from within attorneys’ profession to represent profession as a whole, and appointed by
President
(g) One teacher of law designated by teachers of law at South African universities
(h) Six persons designated by NA from among its members
(i) Four permanent delegates of NCoP designated together by the Council
(j) Four persons designated by President
(k) when considering matters relating to a specific HC, Judge President of that Court and the Premier of province
concerned, or an alternate designated by each of them
(2) Provides for composition of members of attorneys’ professions and vacancies to be filled and provides for when President
must appoint without consultation with relevant members of the profession
(3) Provides for duration within which members designated by the NCoP may serve
(4) JSC exercises powers in terms of Constitution and national legislation
(5) JSC may advice national government on matters related to admin of justice and judiciary must sit without members of
NA and NCoP regarding matters not dealing with the appointment of judges
(6) JSC may provide for its own procedure, but its decisions must be supported by a majority of its members
(7) Deputy Chief Justice and Deputy President of SCA serve on behalf of Chief Justice and President of SCA in their absence
on the Commission
(8) All members who are temporarily unable to serve may be represented by persons appointed by the President and the
persons who appoint, nominate, or designate the members of the commission

South African National Prosecuting Authority

 Decision taken by NPA to prosecute or not to prosecute should be taken without political interference
 Powers of the NDPP and DPP
- Institute and conduct criminal proceedings on behalf of the state
- Carry out any necessary functions incidental to instituting and conducting criminal proceedings
- Discontinue criminal proceedings
S 179(1) Provides for a single NPA which consists of
(a) National Director of Public Prosecution (NDPP) who is head of NPA and is appointed by President
(b) Directors of Public Prosecutions (DPP) and prosecutors
(2) Prosecuting authority has the power to institute criminal proceedings
(3) National legislation must ensure that the DPP’s are
(b) appropriately qualified
(b) responsible for prosecutions in specific jurisdictions
(4) National legislation must ensure that prosecuting authority exercises its functions without fear, favour or prejudice
(5) NDPP must
(a) determine what must be observed in prosecution process, which should be done with concurrence of Cabinet
member responsible for the administration of justice
 (b) issue policy directives which must be observed in the prosecution process
(c) may intervene in the prosecution process when policy directives are not complied with
(d) may review a decision to prosecute or not to prosecute after consulting relevant DPP and after taking representations
from the accused, the complainant, and any other relevant person
(6) Cabinet member responsible for administration of justice must exercise final responsibility over the prosecuting authority
(7) all other matters must be determined by national legislation
NDPP v Zuma:
 Prosecution policy requires from prosecutors when deciding whether to institute criminal proceedings against an accused to
assess whether there is sufficient and admissible evidence to provide a reasonable prospect of a successful prosecution
 There must indeed be a reasonable prospect of a conviction, otherwise prosecution should not be commenced with or
continued

Matters concerning admin of justice

S 180 National legislation must provide for
(a) the training of judges
(b) procedures for dealing with complaints
(c) participation of other people except for judicial officers in court decisions

Theme 3: State Institutions Supporting

Constitutional Democracy
Various state institutions
 S 181 provides for establishment of state institutions with purpose of strengthening constitutional democracy

 S 181(1) provides for following institutions:

- Public protector

- South African Human Rights Commission

- Commission for Promotion and Protection of the Rights of the Cultural, Religious and linguistic communities

- The Commission for Gender Equality

- The Auditor General

- The Electoral Commission

S 181 of Constitution and state institutions

supporting democracy
 S 181(1) provides a list of the state institutions supporting democracy

 (2) provides for independence and impartiality of these state institutions, and that institutions are only subject to Constitution

 (3) states that other state organs should ensure independence of these institutions through legislation

 (4) states that no person may interfere with the functioning of the chapter 9 institutions
 (5) states that chapter 9 institutions are accountable to NA and must report their activities to parliament once a year

Public Protector
S 182 - Functions
 Control over public administration of the state
 Previous similar office – ombudsman (moved to a more gender-neutral term)
 Investigates maladministration within the state
 Performs an important role within the public administration and government of South Africa

182(1)(a) Public Protector must investigate any alleged improper conduct in public administration
(b) report on the above conduct
(b) take appropriate remedial action
(2) perform functions and powers in terms of national legislation
(3) public protector may not investigate court decisions
(4) must be accessible to all persons and communities
(5) report must be open to public unless national legislation requires for report to be confidential
EFF v Speaker of NA; DA v Speaker of NA:
 CC found that remedial action of Public Protector is often (but not always) binding
 This will depend on the kind of remedial action taken:
- If the remedial action is phrased as a recommendation, it will most likely not be binding
- If the remedial action is phrased as an instruction, it will likely be binding
 When remedial action is binding, compliance is not optional and remedial action taken against those under investigation
cannot be ignored without legal consequences

Tenure
 S 183: public protector’s term is a non-renewable period of seven years

South African Human Rights Commission

184(1) Duties of the SAHRC
(a) promote respect for human rights and a human rights culture thereof

(b) promote the protection of human rights

(c) monitor and assess observance of human rights

(2) Powers of the SAHRC
(a) investigate and report observance of human rights

(b) take steps to secure appropriate redress where human rights have been violated

(c) carry out research

(d) to educate
(3) Requires relevant organs to update commission with recommendations towards realization of socio-economic rights

(4) Additional powers prescribed by national legislation

 Commission for promotion and protection of rights
of cultural, religious, & linguistic communities
Objects, powers, and functions
S 185(1) Objects:
(a) promote respect for rights of cultural, religious, and linguistic communities
(b) promote tolerance and national unity
(c) recommend the establishment of a cultural council for community
(2) Power to investigate and report on issues concerning rights of cultural, religious, and linguistic communities
(3) Commission may report any matter which falls within its powers and functions to the SAHRC for investigation
(4) The Commission has the additional powers and functions prescribed by national legislation

Composition
S 186(1) Number of members of Commission and term must be prescribed by national legislation
(2)(a) commission must be broadly representative of diverse South African cultural and religious groups
(b) commission must be broadly representative of the South African gender composition

Commission for gender equality

S187(1) Must promote gender equality
(2) Monitor, investigate, research, lobby, advise, and report on issues concerning gender inequality
(3) Additional powers as prescribed by national legislation

Office of the auditor-general

 Plays an important role over control of government finances and expenditure

S 188(1) Report on accounts, financial statements, and financial management of-

(a) national and provincial state departments
(b) municipalities
(c) any other institution or accounting entity required to be audited in terms of national legislation
(2) May also audit
(a) any institution funded from the National Revenue Fund or a Provincial Revenue Fund or by a municipality
(b) institutions authorized in terms of law to receive money for a public purpose
(3) AG must submit audit reports to any legislature that has a direct interest in the audit, and to any other authority
prescribed by national legislation. All reports must be made public
(4) The AG has the additional powers and functions prescribed by national legislation

 Tenure – s 189: AG must be appointed for a fixed, non-renewable term of between five and ten years

Independent electoral commission

 S 190(1) Duties of independent electoral commission
(a) Manage elections
(b) Ensure free and fair elections
(c) Declare results within period prescribed by legislation
(2) Has additional powers and functions prescribed by national legislation
 S 191: Commission must be composed of at least 3 persons
 Independent broadcasting authority
 S 192: regulates broadcasting in public interest, and ensures fairness and diversity of views broadly representing South African
society

Appointments
S 193(1) Public protector and members of any commission must be women or men who
(a) are South African citizens
(b) are fit and proper to hold the specific office
(c) comply with any other requirements prescribed by national legislation
(2) Commissions must reflect race and gender composition
(3) AG must be a fit and proper person, South African and must have specialized experience in auditing and state finances
(4) President, on recommendation of NA, must appoint Public Protector and the Auditor General and members of:
(a) the South African Human Rights Commission
(b) the Commission for Gender Equality
(c) the Electoral Commission
(5) The NA must recommend persons-
(a) nominated by a committee of Assembly proportionally composed of members of all parties represented in Assembly
(b) approved by the Assembly by a resolution adopted with a supporting vote of -
(i) 60% of members of Assembly, if recommendation concerns appointment of Public Protector or AG; or
(ii) a majority of members of Assembly, if recommendation concerns appointment of a member of commission
(6) The involvement of civil society in the recommendation process may be provided for as envisaged in s 59(1)(a)

Removal
 S 194 of Constitution makes provision for removal from office of heads and commissioners of various Chapter 9 institutions
on grounds of misconduct, incapacity or incompetence

 NA, to whom Chapter 9 institutions are accountable, adopted Rules regulating removal of office-bearers of these institutions

 The removal process consists of 17 steps:

- Initiated by filing a notice to remove an incumbent from office, with Speaker of NA

- If Speaker is satisfied that motion complies with criteria set out in Rules, they appoint an independent panel tasked with
duty to determine whether a prima facie case for removal of office-bearer exists

- Panel must submit a report containing its recommendations and reasons therefore to Speaker

- Report is considered by NA to determine whether to proceed with removal process in terms of s 194 of Constitution

- Should process proceed, a committee consisting of members of NA is established to conduct a formal enquiry

- Rules afford office-bearer right to be heard and to legal representation during enquiry, however, legal representative may
not participate in enquiry

- Committee must produce a report with its findings, recommendations and reasons for recommendations

- If committee recommends that office-bearer should be removed, removal must be placed before NA to vote in terms of s
194(2) of Constitution

- If 2/3 of members of NA vote in favour of removal, office-bearer must be removed by President in terms of s 194(3)(b)

S 194(1) Public protector, Auditor General or a member of a Commission may be removed from office on
(a) the ground of misconduct, incapacity, or incompetence
(b) A finding to that effect by a committee of NA
 (c) Adoption by the Assembly of a resolution calling for that person’s removal from office
(2)(a) Resolution for removal must be adopted with a supporting vote of at least 2/3 of members of Assembly (for Public
protector / Auditor General)
(b) Member of a Commission must be adopted with a supporting vote of a majority of the members of Assembly
(3) The President
(a) may suspend a person from office at any time after start of proceedings of a committee of NA for removal of that
person
(b) Must remove a person from office upon adoption by Assembly on resolution calling for that person’s removal

Theme 5: Standing, ripeness, mootness

Standing – s 38 of Constitution
 Standing: whether someone who approaches court is appropriate person (or institution) to present matter to court for
adjudication
 At common law, it is generally required that party approaching court own rights must be at stake to have standing
 In Roman Law tradition, action (ness) popularis (popular action) was recognised, thus a case could be perused for benefit of
populace in general
 Requirement for standing in relation to protection of a constitutional right (s 38):
- There must be an allegation that a right in Bill of Rights has been infringed or threatened
- Applicant (making allegation) must demonstrate that any of categories of persons listed in s 38(a) – (e) has a sufficient
interest to obtain legal relief
 S 38: Persons who has right to approach a competent court, alleging that a right in Bill of Rights has been infringed or
threatened, for which court may grant appropriate relief, including a declaration of rights, are:
(a) Anyone acting in their own interest (common law position)

(b) Anyone acting on behalf of someone who cannot act on their own

(c) Anyone acting as a member of or in interest of a group / class of persons

(d) Anyone acting in public interest (allowed in Roman law – actiones popularis)

(e) An association acting in interest of its members

 Four Wheel Drive Accessory Distributors CC v Leshni Rattan:
- Appellant sued respondent, executrix of estate of Mr Rattan, for cost of repairs to a courtesy vehicle owned by Land
Rover which was provided to Mr Rattan
- Appellant claimed that it leased vehicle to Mr Rattan who undertook to return it in same condition that he received it
- He did not comply with this obligation
- He was shot and fatally wounded by unknown persons whilst travelling in vehicle, which was riddled with bullet holes
- SCA held that appellant failed to establish that it bore risk of damage to vehicle – did not have an interest that entitled it to
sue for damages
- Also did not prove that Mr Rattan had concluded lease agreement
- Thus, applicant did not have standing / locus standi

S 38(c) – Class action

 Not permissible in common law
 City Council of Pretoria v Walker
 Trustees for Time Being of the Children’s Rescue Centre Trust v Pioneer Food: Requirements for class action
- Existence of a class identifiable by objective criteria
- Cause of action raising a triable issue
- Right to relief depends upon determination of issue
- Relief sought or damages flows from the cause of action
- Class action is the appropriate procedure for allocating damages
- Representative is suitable
- Class action most appropriate means of determining claims of members
 S 38(d) – Acting in public interest
 Only allowed at Roman law and called actiones popularis
 Requirements:
- General nature or otherwise of the interest
- Whether there is another reasonable and effective manner in which the challenge can be brought (e.g., possibility that
specific interest groups may pursue matter)
- Degree of vulnerability of people affected
- Nature of right alleged to be infringed and consequences of infringement
- Nature of relief requested
 Justice Alliance of SA v President of the RSA:
- Issue was that term of office of a previous Chief Justice was renewed by president in terms of an unconstitutional statute
- Applicants relied on arguments for protection of Constitution; respect of rule of law; principle of legality; protection of
administration of justice and independence of judiciary; promotion and protection and advancement of human rights;
strengthening constitutional democracy; and promotion of social justice
 Freedom Under law v Acting Chairperson of the JSC:
- Applicants claimed standing in public interest, in interest of their members or in their own interest, pursuant to standing
provision of Constitution
- Challenged a decision of JSC not to take action against Judge President Hlophe for his alleged gross misconduct

Amicus curiae – Involvement in litigation

 Amicus curiae: friend of court – assists court by furnishing information or argument
 Role of amicus curia (usually represented by counsel) is limited to argument – generally not allowed to present evidence
 Hoffman v South African Airways:
- Amicus assists court by furnishing information or argument against questions of law or fact

- Not a party to litigation but believes that court’s decision may affect its interests

- Joins in proceedings on own accord and after parties agreed to involvement / having successfully applied to join, to assist
court because of its expertise on or interest in matter before court

Ripeness
 Ripeness refers to timing
 Case may not be brought before court prematurely but must be ready (ripe) for trial which implies that there must be an actual
dispute
 Litigation on academic, theoretical, or abstract issues are not permitted
 Issue of ripeness is related to doctrine of avoidance

Mootness
 Mootness refers to redundancy
 Occurs in scenarios where once there were actual disputes, which have become redundant for whatever reason, dispute that
once was up for decision has lapsed
 Hence, case no longer presents an existing controversy or dispute to be decided and judgment will therefore not have a
practical effect
 Ngewu v Post Office Retirement Fund:
- Alleged unconstitutional legislative provision which was reason for dispute was corrected before trial by way of an
amendment of legislation
 Theme 6 & 7: Interpretation
Introduction
 Differences between interpretation of Constitution, particularly the Bill of Rights, and ordinary legislative interpretation
 Constitution serves as criterion for law, and conduct that must comply with Bill of Rights and with rest of Constitution
- When dealing with interpretation of Constitution, we are dealing with yardstick or criterion jurisdiction par excellence
 Bill of Rights is required to be a durable document
- Integrity must be protected, and it must therefore as far as possible not be amended
- In nature of bills of rights that their provisions are ideologically charged (value-laden) and are formulated in broad and
general terms, precisely with a view of enabling Bill of Rights to serve as criterion for law of conduct over a long period
and in order to assist courts in applying it as such, in spite of changing views and convictions
 Interpretation of broad phrased provisions requires that provisions be shaped, developed and filled in with detailed content in
specific situations, which is done by interpreters within their specific horizons (interpretive worlds) that are different from that
of drafters and interpretive communities
 Bill of Rights (and Constitution), like legislation, remains a written instrument, and interpreters must account for their
interpretation with reference to text itself – attach meaning to text (provisions)

Practical case law

 Jaga v Donges:
- Case concerned interpretation of "sentenced to imprisonment" in s 22 of Act 22 of 1913
- Court held that there were 2 approaches to statutory interpretation: methodical / literal and contextual
- Dissenting judgment moved beyond literal meaning of word to embrace wider context of legislation
- Transition proved to be painstakingly slow – with advent of ‘new’ constitutional dispensation marking first real
paradigmatic shift from literalism to purposivism
 S v Makwanyane:
- Example of case where CC used traditional methods of interpretation and subjective constitutional interpretation
- Court held that provisions of Constitution should not be construed in isolation but in context which includes history and
background
- Court held that there was no definition of what is to be regarded as cruel, inhuman, or degrading punishment
- Illustrates different methods of interpretation:
o Grammatical
o Systematic
o Purposive interpretation and historical aspects and considered international and foreign law
 Justice Alliance v President of RSA:
- Regarding extension of term of Chief Justice for 5 years by President
- Conflict between s 176 (1) of Constitution and s 8(a) of Judges Remuneration and Conditions of Employment Act
- Constitution prevails
 Mayelane v Ngwenyama:
- Considered development of customary law relating to Tsonga marriages, relying primarily on s 39(2) of Constitution
- Court developed customary law in relation to first wife’s consent for polygamous customary marriages
 Carmichele v Minister of Safety and Security:
- Held that courts’ obligation to develop common law, in context of s 39(2) objectives, is not purely discretionary
- Implicit in s 39(2) read with s 173 that where common law is deficient in promoting s 39(2) objectives, courts are under a
general obligation to develop it appropriately
- Applicant argued that investigating officers and state prosecutors had duty to ensure her attacker should have been refused
bail based her constitutional rights, and that HC and SCA had failed in their constitutional duty to develop common law

Purposive interpretation
 CC (in keeping with courts in various other jurisdictions) favours a purposive approach
 Approach is required by s 39(1)(a)
 Effect must be given to purpose of provisions under consideration
 Factors taken into account:
 - Nature and larger objects of Bill of Rights
- Language used to articulate specific provision (right)
- Historical origins of provision or concept to be interpreted
- Meaning and purpose of other rights associated with right in question
 Meaning should be generous rather than legalistic, must fulfil purpose of provision and ensure rights-bearers full benefit of
Bill of Rights
 Involves a value judgment which is a controversial matter as it may give rise to a variety of interpretations of same provision
 Aids to interpretation must be factored in together to establish meaning of constitutional-rights:
- Nature and larger objects of Bill of Rights
- Language used
- Historical origins of provision / concept and background of adoption of Constitution (additional source – not aid on own)
- Meaning and purpose of other rights associated with right under consideration (also not aid on its own)
- Constitutional provisions construed generously rather than legalistically

Historical interpretation
 History of country; background material relating to circumstances that existed when Constitution was adopted including
debates and writings which formed part of process
 Comments of individuals who participated in process may not be taken into account
 Meanings might change over time in accordance with changes in (dominant) convictions in society
 Theory of original intent – original intent of drafters, as reflected in text of must be discovered and then given effect to
 This approach towards constitutional interpretation is not plausible
- Difficult to establish original intent of drafters
- Even if it would have been possible to establish an original intent, such intent might not be capable for solving present
and future disputes, never contemplated in original intent

Generous interpretation
 Courts are required to interpret as wide and beneficial as possible to claimant of a right as is allowed by wording of provision
and, at same time, to avoid restriction as far as possible
 Implies that limitation under s 36 be considered, but that limitation be restricted as far as possible

Comparative interpretation
 Done with reference to s 39(1)
 Interpretation with reference to comparable provisions and case law in comparable jurisdictions
 According to S v Makwanyane, courts may derive assistance from public international law and foreign law, but is not bound to
follow it
- Comparative interpretation must be conducted with due regard to unique domestic context of Constitution

Systematic (contextual) interpretation

 Provision must be interpreted within its broader system, that is, with reference to its position in relation to constitutional text in
general and in its relation to specific other provisions that might be relevant to case concerned
 Invokes notion of holistic interpretation
 Right must be interpreted jointly with other rights associated with it

Teleological interpretation
 Similar to purposive interpretation
 Telos is Greek word which means purpose or aim
 Requires that aim and purpose of a provision be ascertained against backdrop of fundamental constitutional values
 Fundamental values in Constitution form foundation of a normative basis for constitutional interpretation and serves as broad
aim for interpreting Bill of Rights and law outside Constitution

Transformative interpretation
 Encompasses notion of transformative constitutionalism (transformative vision of Constitution)
 Demands that everyone engaged in constitutional interpretation is required to interpret Constitution with a view of
accomplishing a “transformed” society

Relevance of public opinion for interpretation

of Bill of Rights
 In S v Makwanyane, CC observed that public opinion may have some relevance to enquiry, but, in itself, it is no substitute for
duty vested in Courts to interpret Constitution and to uphold its provisions without fear or favour
 S 165(2) of Constitution provides that courts are independent and subject only to Constitution and law, which they must apply
impartially and without fear, favour or prejudice

Interpretation clause
 S 39(1): When interpreting Bill of Rights, a court, tribunal or forum-
(a) must promote values that underlie an open and democratic society based on human dignity, equality and freedom
(b) must consider international law
(c) may consider foreign law
 Values in (a) refer to those set out in s 1 of Constitution.
- Values are not enforceable rights
- They fulfil a default position where interpretation of a specific provision might be controversial
 Are other values that might come into play, e.g., those set out in preamble to Constitution and value of Ubuntu
 This s endorses purposive interpretation of Bill of Rights
 International law: law which is binding on at least two states – in case of human rights law, mostly international human rights
treaties and international customary law
- S 39(1)(b) does not relate to treaties entered into in terms of s 231, but to treaties that South Africa is not party to
 Foreign law: domestic law of a particular state
- Must be comparable
 S 39(2): When interpreting any legislation and when developing common law or customary law, every court, tribunal or forum
must promote spirit, purport and objects of Bill of Rights
- Indirect application of the Bill of Rights – claim / defence is based on legislation, common or customary law, but
Constitution, specifically the bill of rights, may impact on litigation on basis of s 39(2)
 This way of application must be read with s 173: CC, SCA, and HC have inherent power to develop common law, taking into
account interests of justice
 S 39(2) is not applicable where legislation is obviously unconstitutional; only when it is ambiguous or otherwise unclear and
therefore susceptible for pro-constitutional interpretation

Development of the common law and

customary law
 Particularly required where:
- Application of a common law rule would be incompatible with a constitutional right
- Common law does not give full effect to the spirit, purport and objects of Bill of Rights
 Power of courts to develop common law is limited by stare decisis principle – court is not allowed to deviate from decisions of
a higher court in name of development of common law, unless deviation is from a pre-1994 judgment, which is clearly in
conflict with Constitution
 S 39(3) provides that Bill of Rights does not deny existence of any other rights or freedoms that are recognised or conferred by
common law, customary law or legislation, to extent that they are consistent with the Bill of Rights
- Defines a base line of minimum protection
 If legislation, common law or customary provides for better protection that Constitution, that protection must be retained
 When protection of these bodies of law is weaker than that of Constitution, it must be enhanced in order to meet the base set
by Constitution
- Occurs by ruling provisions to be unconstitutional or, if possible, interpreting legislation and developing common law
and customary law in a way that promotes spirit, purport and objects of Bill of Rights (s 39(2))

Theme 8: Application
Bearers of rights
 Not all persons are bearers of all rights in Bill of Rights
 Whether or not a person is a bearer of a specific right will depend on nature of right in question, nature of person (natural or
juristic) and way in which right is defined
 In some cases everyone, including non-citizens and persons temporarily in country are bearers of rights

Natural persons
 Foetuses do not generally have rights, duties, or capacities, but there are certain laws which safeguard them
- In keeping with our common law, that that does not conclude all aspects of protection of potential rights of foetus
- Christian Lawyers’ Association v National Minister of Health:
o While there may be uncertainty in common law as to extent to which nasciturus fiction may clothe an unborn child
with any legal personality, word “everyone” in s 11 of Constitution cannot be construed as including a foetus
o Foetus does not enjoy a constitutional right to life, and is not afforded protection by s 11 against termination of
mother’s pregnancy
o To afford foetus status of a legal persona would also impinge on rights accorded to women by Constitution including
right to freedom and security of person, right to make decisions concerning reproduction, right to security and control
over their bodies, right to human dignity, life, privacy, religion, belief and opinion, and health and care
- Voice of the Unborn Baby NPC and Another v Minister of Home Affairs and Another:
o Cause for Justice (CFJ), admitted as Third amicus curiae, submitted that disposal of foetal remains as medical waste
is inconsistent with the value of human dignity
o CFJ submitted that prospective parents should be allowed to choose how they dispose of foetal remains, regardless of
gestational age, and denying them that opportunity is a denial of their constitutional rights and inherent value of
deceased foetus
- NVM OBO VKM v Tembisa Hospital:
o Applicant sued respondents in HC, seeking damages for injury suffered by her baby
o Applicant claimed personal damages for medical expenses, loss of earnings and psychological shock and trauma
o Court concluded that applicant had established necessary causation to find her claim and ordered second respondent
was liable to pay damages
o Respondents appealed to Full Court in HC, who concluded that trial court incorrectly applied “but for” test and that
factual causation was not established – respondents were successful
 Some constitutional rights accrue only to some categories of persons:
- Only vests in citizens (e.g., s 19, 20, 21)
- Only vests in adult citizens (s 19(3))
- Only vests in employees (s 23)
- Only vests in employers (s 23)
- Only vests in children (s 28)
- Only vests in arrested, detained and accused persons (s 35)
 Juristic persons
 S 8(4) provides that a juristic person is entitled to rights in Bill of Rights to extent required by right and nature of juristic
person
 Not all juristic persons are entitled to all rights in the Bill of Rights:
- Rights to freedom of expression; economic activity, equality, and privacy, may accrue to juristic persons, yet not
necessarily to same extent as to individuals
- Rights against search and seizure vest in juristic persons
o Investigating Directorate: Serious Economic Offences and others v Hyundai Motor Distributor:
 Dealt with important issue regarding circumstances under which judicial officers may grant a warrant of search
and seizure for purposes of investigating criminal activity
- Right to property may vest in juristic persons
o FNB v Commissioner for the South African Revenue Services:
 Constitutional attack in this case is focused primarily on power of Commissioner to detain and sell various types
of property under s 114 of Act
 S 25 of Constitution deals with juristic persons’ rights to property
- Right to fair labour practices may vest in juristic persons, notably juristic persons, representing interests of employers
o NEHAWU v University of Cape Town and Others

Organs of state (public juristic persons)

 Defined in s 239 of Constitution
- From definition, it is clear that institutions such as public universities and, public schools may also be bearers of
constitutional rights, such as right to freedom of expression, academic freedom, and administrative justice

Waiver of rights
 Waiver may be regarded as an aspect of application, because effect of a decision to waive a right or an agreement not to utilise
a constitutional right has effect that person having waived right or having agreed not to exercise it is (temporarily) no longer
bearer of right in question
 Waiver that has effect that Constitution (a constitutional right) generally (never) be enforced, is not permissible
 May waiver constitutional right if it is:
- Voluntary
- Permissible in accordance with requirements for limitation in terms of s 36(1)
 Waiver of certain rights, even temporarily, such as right to life and serious bodily injury, is never constitutionally permissible

Bearers of duties
 Deals with direct application of Bill of Rights

Vertical application – state is duty-bound to

uphold rights
 Expressly provided for in s 8(1): Bill of Rights binds legislature, executive, judiciary, and all organs of state

Legislatures
 Kind of action required of legislatures depends on right and situation at hand
 Legislatures must respect, protect, promote and fulfil rights in Bill of Rights (s 7(2)) by way of legislation, and in other ways
in which legislatures might perform their functions
 S 9(4), 32(2) and 33(3) require parliament to pass specifically defined legislation
 In some cases immediate and complete compliance is required and in other cases (case of socio-economic rights) progressive
realization is required (s 26(2) and 27(2))
 Obligations of legislatures are often not limited to legislative action – may also include action of a different nature depending
on the context

Executive (in all 3 spheres)

 All executives in relation to all acts regardless of source of power (Constitution, legislation, etc); specific functionary who
exercises the power; and nature of power (administrative, military, prerogative power), are bound to give effect to
constitutional rights

Judiciary
 Judiciary must apply Bill of Rights in disputes it has to adjudicate and grant appropriate remedies
 Specific duties envisaged in s 8(3); 34; 35(3); 39; and 173 are imposed on courts

Organs of state
 Organ of state means:
(a) any department of state or administration in national, provincial or local sphere of government; or
(b) any other functionary or institution
(i) exercising a power or performing a function in terms of Constitution or a provincial constitution; or
(ii) exercising a public power or performing a public function in terms of any legislation, but does not include a court
or a judicial officer
 Includes department of state or administration in national, provincial or local sphere of government, and bodies apart from
state departments (i.e., Chapter IX bodies, Reserve Bank, SAPS, public schools, universities)
 All these institutions are vertically bound to give effect to constitutional rights

Horizontal application – Private persons are

conditionally bound to Bill of Rights
 Usually comes up in litigation based on norms of private law (between private persons), during which one or both parties
expressly rely on specific constitutional rights as basis of a claim or defence
 Issue of horizontal application of Bill of Rights is regulated by s 8(2)
- “A provision of Bill of Rights binds a private person (natural or a juristic person) if, and to extent that, it is applicable,
taking into account nature of right and nature of any duty imposed by right.”
 First question relating to horizontal application is whether such provision could be applicable (and therefore binding) at all to a
private person
 If answer is in affirmative, second question relates to degree or extent of applicability (how heavy obligation on private person
in question should be)

The principle of avoidance

 Laid down in S v Mhlungu
 Whenever it is possible to decide a case on basis of law outside Constitution (based on legislation, common law or customary
law) without resorting to constitutional rights, case has to be decided on basis of such law
 South African Constitution, has been adopted within context of a richly developed system of law, which provides basis for
solving most issues
 Principle found in s 39(3): Bill of Rights does not deny existence of any other rights or freedoms that are recognised or
conferred by common law, customary law or legislation, to extent that they are consistent with Bill

Territorial application of the Bill of Rights

 Rights provided for in Bill of Rights, even though they would have accrued to South African citizens, do not apply extra-
territorially
 South African court cannot be approached to seek redress under South African Constitution outside borders of South Africa
 People must in this case seek relief in terms of law of relevant foreign country
 South African citizens can expect in a scenario of this kind that South African government to use diplomatic channels to
protect South African citizens

Theme 9: Structure of litigation involving

constitutional rights and limitation
Litigation involving constitutional rights
 3 stages of litigation:
- Procedural / application stage
o Lines out who can go to court
o Sets out who is bound by duties set out in particular right
o Formal law determining jurisdiction, standing, etc.
- Substantive stage
o Sets out scope and contents of right
o Determination of whether law or conduct infringed upon that right
- Remedy stage
o Where there is unjustifiable infringement of right concerned, court can remedy infringement – s 36 limitation
analysis occurs whether limitation is justifiable in open and democratic society
 When court is called upon to rule on constitutionality of legislation, there are 2 stages
- Occurs in course of civil or criminal litigation
- One of parties might argue that a legislative provision on which other parties relies is incompatible with a constitutional
right
- Might not be possible to interpret provision in conformity with Bill of Rights according to s 39(2)

Constitutionality of legislation: two stages in

Court
First stage: Infringement stage
 Begins when an allegation is made that a provision of legislation violates a constitutional right
 Must carefully define right that has allegedly been infringed
 Some rights are unconditionally defined (e.g., s 9, 12, 18) while others are conditionally defined and therefore have their own
built-in restrictions (e.g., s 16, 17, 22, 26, 27, 30)
- S 16 – right to freedom of expression
- S 17 – right to assembly, demonstration, picket and petition
 Implication is that totality of a rights provision has to be analysed in order to define right correctly
 SATAWU v Garvis:
- Regulation of Gatherings Act was held to be constitutional since it does not provide for an unrestricted right to
demonstrate but only for peaceful and unarmed restrictions
- Hence, the Act was perfectly compatible with s 17
 Duty of court regarding correct definition of right invokes need for correct interpretation of right, while parties bear burden of
proof (Ferreira v Levin)

Second stage: Limitation

 Two species of limitation clauses:
- internal limitation clauses (each right has its own limitation clause which are part of same s in which right is provided)
- general external limitation clauses (all rights in Bill of Rights are subjected to same requirements for limitation)
 Internal and external limitation clauses necessitate a two-stage approach

S 36
 S 36(1): Rights in Bill of Rights may be limited only in terms of law of general application to extent that limitation is
reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into
account all relevant factors, including-
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose;
(e) less restrictive means to achieve the purpose.
 Limitation is raised by respondent (usually state) or must be undertaken meru moto (voluntarily / on its own motion) by court

S 36(1) (extra constitutional limitation)

 There are essentially two requirements for limitation

Law of general application

 Nothing else but law, that is (legal provision contained in legislation, common law or customary law) or action taken in terms
of such law may legitimately limit a constitution
 A policy, practice, decisions or failure to take action or decisions, regardless of its merits, is not permitted to limit a right
 Dawood v Minister of Home Affairs:
- Law that allows for unconstrained discretionary administrative powers (that could infringe a constitutional right) is not a
law of general application
- Discretionary powers that could have this effect must be circumscribed in detail – if not, an infringement caused by such
action will be regarded as having been actuated by action (conduct) and not law of general application (and therefore
unconstitutional)
 If limitation was not actuated by law of general application, this will conclude inquiry and limitation will be held
unconstitutional
 If limitation did follow in consequence, inquiry will move on to second question, which relates to reasonability and
justifiability
 Reasonable and justifiable in an open and
democratic society
 Infringing law in order to be constitutional must be reasonable and justifiable in an open and democratic society based on
human dignity, equality and freedom, taking into account all relevant factors, including factors listed in s 36(1)(a)-(e)

Proportionality analysis / test

 Harm caused by infringing must be balanced against benefits accomplished by such infringement
- If harm outweighs benefits, limitation would be held illegitimate
- If benefits outweigh harm, limitation would be held constitutional
 In practice, factors listed in s 36(1) are to be used in order to assess legitimacy of reasonability and justifiable of limiting law
- Nature of right – importance of right in an open and democratic society, as well as importance of right to person
- Importance of purpose of limitation – if respondent (state) cannot show that it serves a legitimate purpose, conclusion
would be that it was arbitrary and for that reason clearly unconstitutional
- Nature and extent of the limitation – more invasive infringement, the less are chances for justifying it
- Relation between limitation and its purpose – whether limitation would be factually capable of achieving purpose with
reference to evidence
- Less restrictive means to achieve purpose – respondent (state) must show that limiting means it used was in fact less
restrictive means to achieve purpose for which such means utilised

S 36(2) (Intra constitutional limitation)

 S 36(2): Except as provided in any other provision of Constitution, no law may limit any right entrenched in Bill of Rights
 Limitation of a constitutional right emanates, not from a law (of general application) from outside Constitution as envisaged in
s 36(1), but from provisions inside Constitution itself
 The locus classical for this form of limitation is AZAPO v President of the RSA – if court finds that a constitutional right was
violated and that violation is not justifiable in terms of limitation clause, court must grant appropriate relief

The special case of s 35(5)

 S 35(5): Evidence obtained in a manner that violates any right in Bill of Rights must be excluded if admission of that evidence
would render trial unfair or otherwise be detrimental to administration of justice

Theme 10: Equality

Introduction
 Since WW II, right and value of equality (and right against unfair discrimination) has become of paramount importance in
many national constitutions as well as in a raft of international-law and regional human-rights instruments
 In South African constitutional order, equality features as a value in founding provision of (s 1) and in various other provisions
(e.g., s 36(1) and 39(1)) and then as a right in s 9

Right to equality and against unfair

discrimination in South African law
 Introduction
 Value – s 1(a): RSA is one, sovereign, democratic state founded on following values: human dignity, achievement of equality,
and advancement of human rights and freedoms
 S 1(a) must be interpreted against backdrop of history of inequality, and therefore not only with a view of removing
discrimination and stumbling blocks in way to achieve equality, but also to create conditions for achieving equality
 S 9(2) and judgment in Brink v Kitshoff highlights that right to equality is of particular importance in SA against backdrop of
a history of discrimination
 In Minister of Home Affairs v Fourie, Court stressed that right to equality requires that differences between people be
recognised and protected. Court stated: “Equality affirms that difference should not be basis for exclusion, marginalisation and
stigma, and that equality celebrates vitality that difference brings to any society.”

Formal equality vs substantive equality

Formal equality
How it is achieved If measure provides for same standards to
be applied to everyone – uniform
treatment for everyone that finds
themselves in same circumstances
When inequality would occur When a measure lays down different
standards for various categories of people
even though they find themselves in same
position
Test Way in which measure is formulated
Substantive equality
Different people in different positions may
experience same standard differently –
different standards should be applied to
different categories of persons
When same standard is applied to different
categories of persons that require different
treatment in order to achieve equality
Effect of measure – equality of outcome

 Equality cannot always be achieved through uniform treatment

- President of the RSA v Hugo: court stated that equal treatment on basis of equal worth and freedom would not
necessarily be achieved by insisting upon identical treatment in all circumstances

Concept of restitutionary / corrective equality

 In National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others, Court observed that
achievement of equality does not allow for laissez faire approach, but requires that remedial / corrective measures be instituted
 This is interpreted against concept of transformation / transformationism, which, though not expressly mentioned in
Constitution, has been endorsed by CC (e.g., Bato Star Fishing v Minister of Environmental Affairs )
 Idea of restitutory equality is also reflected in affirmative action which is provided for in s 9(2)

S 9 of Constitution
S 9(1) Everyone is equal before law and has right to equal protection and benefit of law
(2) Equality includes full and equal enjoyment of all rights and freedoms. To promote achievement of equality, legislative and
other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination
may be taken
(3) State may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender,
sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief,
culture, language and birth
(4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of ss (3)
National legislation must be enacted to prevent or prohibit unfair discrimination
(5) Discrimination on one or more of grounds listed in ss (3) is unfair unless it is established that discrimination is fair
 This section clearly includes formal and substantive equality by providing for equality before law; right to equal protection of
law; and right to equal benefit of law – corrective equality (affirmative action) is also expressly provided for
 Harksen v Lane
 Harksen v Lane is locus classicus for test for equality in South African constitutional law
 Court held that a single test for right to equality and right against unfair discrimination should apply
 Discrimination must be unfair in order to be unconstitutional
 Two stage analysis:
- Discrimination stage:
o Does the challenged law / conduct differentiate between people or categories of people?
o Purpose must be for some public good – legitimate government purpose must be identified
o If differentiation measure was on ground listed in s 9(3), discrimination is established
- Unfairness stage:
o Must determine whether differentiation is unfair
o Is there a rational connection between differentiation rule and purpose for which it was adopted?
o Differentiation on s 9(3) grounds is presumed to be unfair in terms of s 9(5) – burden of rebuttal on respondent
o For non-listed ground, burden is on complainant (applicant)
 Factors to determine unfair discrimination:
- Whether victim was detrimentally affected by past discrimination
- Legitimacy and purpose of discrimination
- Extent to which rights of victims are infringed
 If discrimination is found to be unfair, limitation stage of inquiry is applied in terms of s 36
 Not necessary to apply both parts of inquiry in all cases – when it is obvious that there is unfair discrimination, there is no
need to apply first part
 Test for equality is a rationality test, aimed at preventing arbitrary differentiation – arbitrary differentiation would constitute a
naked preference

Direct and indirect discrimination

 Direct discrimination occurs when a measure expressly differentiates against categories of persons in a way that is detrimental
to a particular category
 Indirect discrimination occurs when measure or conduct does not discriminate openly
- Measure appears to be neutral, but effect is to discriminate (Pretoria City Council v Walker)

Discrimination in contrast to unfair

discrimination
 Unfair discrimination occurs when a differentiating measure impairs human dignity or has effect of infringing rights of those
who are being discriminated against
 Important to differentiate between scenarios of listed grounds of discrimination (s 9(3)) and non-listed grounds
 If a measure differentiates on a listed ground, unfairness is presumed and onus is on discriminator to prove otherwise
 Affirmative action is provided for in s 9(2)
 Affirmative action measures must be so designed that persons / categories of persons who has been disadvantaged by previous
discrimination draw benefit from these measures (beneficiaries are merely required to belong to a category of previously
disadvantaged persons.)
 South African Police Service v Solidarity obo Barnard
 PEPUDA
 Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 has been passed in pursuance of s 9(2) in order
to give detailed effect to promotion of equality

The right to equality and minorities

 In public international law, rights of minorities have been dealt with as an aspect of right to equality and against unfair
discrimination
 Minorities: Group numerically inferior to rest of population of a State, in a non-dominant position, whose members – being
nationals of State – possess ethnic, religious or linguistic characteristics differing from those of rest of population and show, if
only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or language
 Two aspects that were stressed and that formed basis of minority protection are:
- Right against discrimination that sought to provide for formal equality
- Right to identity which is an aspect of the right to equality and against discrimination

Theme 11: Right to freedom of religion,

belief, and opinion
S 15(1)
 S 15(1): Everyone has the right to freedom of conscience, religion, thought, belief and opinion
 What is not protected under religion may enjoy protection as conscience, thought, belief and opinion
 Must be interpreted and balanced with reference to relating rights: s 9(3) - (4) (right against unfair discrimination; s 16
(expression); s 18 (association); s 31(2) (right of people belonging to cultural, religious and linguistic communities)
 Aspects of right to freedom of religion in terms of S v Lawrence (which references Big M Drug Mart ) includes right to:
- have (entertain) religious beliefs
- declare religious beliefs openly and without fear of hindrance or reprisal
- manifest religious belief by worship and practice or by teaching and dissemination
 It also includes rights to change one’s (religious) convictions, to promote and teach them and to assemble with others of same
conviction
 Includes negative element that people may not be forced to act contrary to their convictions
 MEC for Education, KwaZulu Natal and Others v Pillay
- It is difficult to distinguish religion from culture (and customs that are followed as part of a culture)
- Religious practices are frequently informed by faith and by custom

The notion of “reasonable accommodation”

 In general, refers to an adjustment made in a system to accommodate an individual based on a proven need
 S 15, refers to instances where community (State, employer, school, etc.) must take positive measures and possibly incur
additional hardships / expense in order to allow people to participate and enjoy their rights equally
 Claims of persons belonging to religious communities that deviate from commitments of Bill of Rights may be
accommodated, but accommodation must still comply with values of and open and democratic society as envisaged in s 36
 In Christian Education, CC dealt with administering of corporal punishment in schools:
- Issue is not whether prohibition can be justified, but whether impact of prohibition on religious beliefs and practices of
members of appellant can be justified under limitations test of s 36
- Proportionality exercise has to relate to whether failure to accommodate appellant's religious belief and practice by
means of exemption for which appellant asked, can be accepted as reasonable and justifiable in an open and democratic
society based on human dignity, freedom and equality
 MEC Education v Pillay:
- Underlying problem is how far democracy can and must go in allowing members of religious communities to define for
themselves which laws they will obey and which not
- Believers cannot claim an automatic right to be exempted by their beliefs from laws of land, but State should, wherever
reasonably possible, seek to avoid putting believers to extremely painful and intensely burdensome choices of either
being true to their faith or else respectful of law
 In adjudicating disputes regarding right to religious freedom, focus would first be on whether belief (and practices) that
claimant seeks to protect are crucial for religion
 Courts ask whether reliance on right to religion is genuinely based on religious conviction and whether claim of right to
religion is sincere – must be balanced with extent to which that belief invades constitutional rights of others and with
legitimate public concerns
 Examples:
- Hay v B: parents’ refusal of a blood transfusion for their terminally ill child on religious grounds was found to be
unjustifiable
- Prince v Cape Law Society: dealt with prohibition of the possession of dagga, specifically as far as the prohibition also
applied to Rastafarians who use dagga as part of their religious practices. Infringement was held justifiable under s 36(1).
Years later in Minister of Justice and Constitutional Development v Prince CC reached an opposite conclusion

Equality of religions
 South African Constitution and provisions of s 15 and case law provide for a different kind of relationship between the state
and religion
 S v Lawrence endorses idea of equitable treatment of all religions by state, and no preference for a specific religion
 Hence, there is no strict separation (wall of separation) between religion and state as in case of USA

S 15(2)
 S 15(2): Religious observances may be conducted at state or state-aided institutions, provided that-
(a) those observances follow rules made by the appropriate public authorities;
(b) they are conducted on an equitable basis; and
(c) attendance at them is free and voluntary
 In Organisasie vir Godsdienste-Onderrig en Demokrasie v Laerskool Randhart and Others, Court by implication attached a
restricted interpretation to this right, in that authority of governing bodies of public schools to choose schools’ religious ethos
was restrictively construed
 This provision relates to observance and not to religious education
 S 15(2) is arguably not applicable to private (independent) schools – their position is governed by s 29(3):
Everyone has the right to establish and maintain, at their own expense, independent educational institutions that-
(a) do not discriminate on the basis of race
(b) are registered with the state
(c) maintain standards that are not inferior to standards at comparable public educational institutions

S 15(3)
 S15(3)(a) This section does not prevent legislation recognising-
(i) marriages concluded under any tradition, or a system of religious, personal or family law
(ii) systems of personal and family law under any tradition, or adhered to by persons professing a particular religion
(b) Recognition in terms of (a) must be consistent with this section and the other provisions of the Constitution
 Statute as envisages by s 15(3): RCMA
 Communal element in the right to religious
freedom
 An individual can often not meaningfully exercise a right on their own – meaningful exercise requires it to be exercised with
others
 This right also accrues to juristic persons
 S 31 emphasises collective (communal) aspect of s 15 – Christian Education v Minister of Education
 S 31(1): Persons belonging to a cultural, religious or linguistic community may not be denied right, with other members of that
community-
(a) to enjoy their culture, practise their religion and use their language
(b) to form, join and maintain cultural, religious and linguistic associations and other organs of civil society
(2) The rights in (1) may not be exercised in a manner inconsistent with any provision of the Bill of Rights

Theme 12: Freedom of expression (and other

freedoms)
Introduction
 Concept of expression: freedom of speech is in fact not limited to ‘speech’ – all aspects of outward expression are covered.
Communication is an integral element of right and untrue expression is also protected
 Right to freedom of expression is important because it is a prerequisite for truth-seeking; democratic political activity;
personal self-fulfilment (personal development); reinforces and protects communal life; and promotes diversity and serves as a
bulwark against conformity and uniformity
 Notion of expression includes all aspects listed in s 16(1), but also aspects not expressly mentioned, i.e., commercial speech
 Broad ambit of right is underscored by fact that truthfulness, reasonableness, fairness, etc are not prerequisites for protection
of this right. The right also covers negative and derogatory aspects of expression including untrue speech

International law context

 Article 19 and 20 of ICCPR is important because RSA is a party to this treaty and is duty-bound to uphold its content
 Article 19 provides as follows:
1. Everyone shall have the right to hold opinions without interference
2. Everyone shall have right to freedom of expression; this right shall include freedom to seek, receive and impart
information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or
through any other media of his choice
3. Exercise of these rights carries with it special duties and responsibilities. It may therefore be subject to certain
restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order ( ordre public), or of public health or morals
 Article 20 provides for an internal limitation to this right:
1. Any propaganda for war shall be prohibited by law
2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall
be prohibited by law

Relevant comparative law context

 Specifically important to consider US law in this regard, not because it is comparative, but precisely because it is not
 USA has ‘absolutist’ approach to freedom of expression
 S v Mamabolo
- CC observed that when deciding matters on right to freedom of expression in SA law, it would be inappropriate to draw
upon case law of USA since legal cultures is of two countries markedly differ on question of freedom of expression
- Two stem from different common-law origins and subsist in materially different constitutional regimes – balance which
our common law strikes between protection of an individual's reputation and right to freedom of expression differs
fundamentally from balance struck in USA
- USA has absolutist approach to freedom of expression: 1 st Amendment guarantees freedom of expression by prohibiting
Congress from restricting press or individuals from speaking freely

- Right to free speech has a sacred place wherein Courts recognize “viewpoint discrimination” meaning that limitation on
Freedom of expression does not limit content of one’s speech – s 16(2) limitation does not exist in their construction

- In SA, right to freedom of expression is tied to other rights in Bill of Rights – to have this right trump others is
antithetical to what Constitution requires

S 16 of Constitution
Speech that is protected
 S 16(1): Everyone has right to freedom of expression, which includes:
(a) Freedom of the press and other media
(b) Freedom to receive or impart information or ideas
(c) Freedom of artistic creativity
(d) Academic freedom and of scientific research
 Khumalo v Holomisa:
- Media are key agents to ensure that government is open, responsive, and accountable to people as founding provisions
Constitution require
- Media has an entitlement under s 16, and an obligation by virtue of their station – media’s duty to report accurately and
fairly also means that it’s right under this provision requires them to promote an open and democratic society
- The ability for people to participate in a democratic society is tied to the freedom of the media
 Broadcasting
- S 192: National legislation must establish an independent authority to regulate broadcasting in public interest, and to
ensure fairness and a diversity of views broadly representing South African society
- At present, body is the Independent Communications Authority of South Africa (ICASA)
 Freedom to receive or impart information or ideas
- This aspect of the right protects both speakers and listeners (addressors and addressees) and covers information that
might be shocking and offensive
- Right to receive information is further supported in s 32, which provides that everyone has right of access to-
(a) any information held by the state
(b) any information that is held by another person and that is required for exercise or protection of any rights
 Freedom of artistic creativity
- Quality of the art is not a prerequisite for protection
- Important because social commentary emerges through artistic creativity, and interpretation of artistic expressions is often
not in control of those who utter expression
 Academic freedom and freedom of scientific research
- This includes research, publication and dissemination without government interference
- Vests in individual academics, scientists, and researchers, and extends to institutions they are attached to
- Position of universities and degree of institutional autonomy to extent necessary to realise academic freedom is crucially
important in this regard
- Impacts also on prior restraint by way of licensing, censorship, etc – prior restraint constitutes a severe infraction to right
and should not readily be countenanced
- Print Media SA v Minister of Home Affairs:
o Film and Publication Act had made amendment that required publications to submit content containing sexual
conduct for prior classification before publication
o Court found that such requirement infringed on right to freedom of expression and was not justifiable in open and
democratic society
 Right to freedom of expression also includes free speech in legislatures which is provided for by way of parliamentary
privilege
- In terms of s 58(1), members of parliament are not liable (criminally / civilly) for anything they may say in parliament,
but this speech is subject to rules of parliament and orders of speaker
- This means that members of parliament cannot be held liable for defamation, but this privilege only extend to
parliamentary proceedings

Speech that is not protected

 S 16(2): This guarantee is not extended to:
(a) Propaganda for war
(b) Incitement of imminent violence
(c) Advocacy of hatred based on race, ethnicity, gender, or religion; and that which constitutes incitement to cause harm
 Propaganda for war
- Way in which government conducts international relations is also affected this aspect of the qualification
 Incitement of imminent violence
- This must be judged with reference to surrounding circumstances, particularly taking into consideration the audience
 Advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm (Hate
speech prohibition)
- Strikes at articulation of most extreme emotions; not mere harsh criticism or disapproval
- In order to fall within hate speech prohibition, there has to be incitement to cause harm, either physically or
psychologically
- Should not be abused to illegitimately restrict harsh expression falling short of actual hate speech as envisaged
 Hate speech is further dealt with in s 10 and 12 of Promotion of Equality and Elimination of Unfair Discrimination Act 4 of
2000 (PEPUDA)
 S 10(1): Subject to proviso in s 12, no person may publish, propagate, advocate or communicate words based on one or more
of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to-
(a) be hurtful
(b) be harmful or to incite harm
(c) promote or propagate hatred
 Argued that s 10 was overbroad and for that reason unconstitutional
- Grounds upon which hate speech is prohibited under s 16(2) is limited to 4 (race, ethnicity, gender or religion), while
PEPUDA covers a large number of grounds (race, gender, sex, pregnancy, marital status, ethnic or social origin, colour,
sexual orientation, age, disability, religion, conscience, belief, culture, language and birth)
- Many acts protected by s 16 of Constitution are prohibited by s 10 PEPUDA
- Intent is not a prerequisite for being held liable for hate speech under s 10 of PEPUDA – test for hate speech is objective,
not subjective. All that is needed is to be held liable is that matter published could reasonably be construed (by whoever
has taken notice of it) to demonstrate a clear intention to be hurtful, harmful or to incite harm or promote or propagate
hatred

Limitation
 This right may also be limited in terms of s 36, even if expression concerned does not fall within internal qualifications of s
16(2)
 Expression which is considered to be somewhat removed from core values underpinning right to freedom of expression is
more readily susceptible to limitation, e.g., child pornography, which is obviously removed from such core values

Related rights
 Rights and freedoms which are related to and which also support the right to freedom of expression:
- Freedom and security of the person (s 12)
- Not to be subjected to slavery, servitude or forced labour (s 13)
- Privacy (s 14)
- Freedom of assembly (s 17)
- Freedom of association (s 18)
 - Freedom of movement and residence (s 21)
- Freedom of trade, occupation and profession (s 22)

Theme 13: Interpretation of socio-economic

rights
Introduction
 Examples of socio-economic rights
- Environmental rights – S 24
- Right to Land – S 25
- Right to Housing – S 26, 28(1) and 35(2)
- Right to Food – S 27(1), 28(1) and 35(2)
- Right to Health – S 27(1), 28(1) and 35
- Right to Water – S 27(1)
- Right to Social Security – S 27(1) and 28(1)
- Right to Education – S 29
 Socio-economic rights: entitlements to those conditions and resources necessary for material wellbeing of all people
- Includes a wide range of rights that are debated on whether they are rights in the first place
- Especially important in South African case due to disparity between ‘haves’ and ‘have-nots’ in society due to our
country’s racist and exclusionary history
- This history has created disparities in:
o Education infrastructure
o Health infrastructure
o Water infrastructure
o Electricity
 Preamble states that one of aims of adoption of Constitution is to improve quality of life and free potential of each person
 Klare characterises Constitution as ‘social, redistributive, caring, positive, at least partly horizontal, participatory,
multicultural, and self-conscious about its transformative role and mission’
 Kriegler J states that ‘Our Constitution aims at establishing freedom and equality in a grossly disparate society
 Recognition of socio-economic rights stems from acknowledgement that without food, water, health care, education and social
security, human beings cannot survive
 Inclusion of socio-economic rights as justiciable rights in South African Bill of Rights makes redress of poverty a matter of
fundamental constitutional concern

Objections raised against the inclusion of

socio-economic rights
 Arguments have been made that these rights are not “universally accepted fundamental rights”
- They argue that these decisions are hard to leave to discretion for courts to decide
- Debate is political as well as legal
 Some say that these rights are inconsistent with separation of powers doctrine
- Judicial deference has emerged as a part of this discourse wherein courts defer answering certain questions and leaves
them within the hands of the state to decide to not undermine the separation of powers
 Others believe that these rights are not justiciable
 Duties of the state to respect, promote and
fulfil socio-economic rights
 S 7(2) establishes that rights in the Bill of Rights impose a combination of negative and positive duties on State:
- “Duty to respect” requires State to refrain from law or conduct that directly or indirectly interferes with people’s
enjoyment of socio-economic rights, i.e., refraining from arbitrary forced evictions of people from their homes
- “Duty to protect” places a duty on state to take legislative and other measures to protect vulnerable groups against
violations of their rights by more powerful private parties
- “Duty to promote” embraces awareness-rising and educational measures for accessing rights
- “Duty to fulfil” requires state to take positive measures to ensure that those persons who currently lack access to rights
gain access to them

Progressive realisation of socio and economic

rights
 State does not have a right to suspend efforts to ensure the full realisation of socio-economic rights
 State has an obligation to begin to take full steps to fulfil its obligation to realise the rights
 Realisation of rights requires an effective utilisation of available resources
 Such realisation is not dependant on increase in resources

Justiciable rights
 Constitutionally acceptable for a court to assess progressive realisation of economic rights, which would require actions of
several mechanisms in concert
 Because responsibility of constructing and enforcing laws belongs to legislative and executive branches respectively, judicial
enforcement of economic rights might be misconstrued as an attack on checks and balances system
 On other hand, judicial review necessitates that courts evaluate consistency of legislation and government action with
constitutional ideals, aspirations, and obligations
 Ensuring human rights of individuals to shelter, food, and basic economic stability, foundational to realisation of their human
dignity, is well within those constitutional bounds
 Due to their unelected status, role and expanse of courts is constantly in question
 This status insulates judges from public, enabling them to protect individuals and groups while exercising objectivity
 There is an institutional bias toward preserving public good over individual rights because latter creates a risk that may
conflict with a public interest – public officials want to minimise risk
 Whereas public officials may base decisions off public approval, insulated judges are distanced from public sentiments and can
remain consistent in their values and decisions
 These factors establish the credibility needed to exercise powerful judicial review

Soobramoney – Health
 Concerns the socio-economic right to healthcare
 Applicant had a chronic illness which required that he be on dialysis
 However, state refused to offer him service as they lacked resources
 Court held that since his condition was not an emergency, he could not rely on right to emergency healthcare in s 27(3) or right
to life in s 11
 Grootboom – Housing/Shelter
 This case raises state’s obligations under s 26, which gives everyone right of access to adequate housing, and s 28(1)(c), which
affords children right to shelter
 Concerned a group of adults and children who moved onto private land from an informal settlement owing to appalling
conditions
- They were evicted from private land and camped on a sports field in area
- They applied to Cape Town HC on an urgent basis for an order against all three spheres of government to be provided with
temporary shelter or housing until they obtained permanent accommodation
 Court stressed that judgment should not be understood as approving any practice of land invasion for purpose of coercing a
state structure into providing housing on a preferential basis to those who participate in any exercise of this kind
 Court issued a declaratory order which required state to devise and implement a programme that included measures to provide
relief for those desperate people who had not been catered for in state programme applicable in Metropolitan area before
Accelerated Managed Land Settlement Programme had been introduced

Treatment Action Campaign – Health

 Concerned the socio-economic right of access to health care services
 Minister of Health only permitted prescription and use of nevirapine, a drug proven to prevent mother to child transfer of HIV,
at designated research clinics and facilities
 Court held that this policy was inconsistent with Constitution and ordered that this restriction be removed and must come up
with a plan that was more coherent in guaranteeing access to health care in terms of s 27 and s 28

Mazibuko – Water
 Concerned the socio-economic right of access to water
 City of Johannesburg planned to introduce a new pre-paid water system to save water in township of Phiri in Soweto – they
had to replace pipes and residents were made to choose between a yard tap or a pre-paid water system and if they chose neither
they would be without water
 S 27(1) guarantees access to ‘sufficient water’
 Court held that government, as a part of its duties in s 7(2), must devise and implement a programme that includes measures to
provide individuals with relief for vulnerable people as set out in a declaratory order

Theme 14: Enforcement

Introduction
 Court process (in its entirety) is about enforcing rights that are guaranteed to a rights bearer
 When a right is infringed / faced with infringement, when you approach court, you are seeking to have those rights protected /
preserved
 Such infringements can occur by way of:
- Positive act (commission) – Rights like freedom and security of person require people to refrain from doing certain acts
(assault, kidnapping, detention without trial etc.) and where those people commit these acts, they have infringed that right
- Negative act (omission) – Rights like socio-economic rights require state to do certain things to guarantee those basic
minimums – where state does not do these things, they have infringed on those rights by way of doing nothing
 When individuals approach court to seek a remedy for an alleged infringement, it is said that they are ‘enforcing their rights’ in
terms of Constitution
 Procedural and substantive steps are means to end that is finding a remedy; remedy being ultimate way to go about enforcing
rights against alleged infringements
 Enforcement and the Constitution
 S 38 provides for enforcement of rights and states
- Anyone that has standing may approach a competent court and court may grant appropriate relief, including a declaration
of rights
 Competent court:
- Court that is approached must have requisite jurisdiction to decide on matter and grant the relief sought after
- Certain courts of a higher status have inherent jurisdiction to address particular matters, thus relief sought is contingent
on authority of court to grant that relief
 Building on notion of a competent court, Constitution (through 2012 amendments) has offered additional mechanisms
- S 167(6) provides National legislation, or rules of CC must allow a person, when it is in interests of justice and with
leave of court to bring a matter directly to CC (direct access); or appeal directly to CC from any other Court (direct
appeal)
- Former takes place outside context of appeals, and latter takes place in context of appeals

Appropriate relief – an order of constitutional

invalidity
 Confirmation of Constitutional invalidity is a form of appropriate relief
 Usually last resort, and courts try as far as possible to avoid striking entire provisions / Acts – they do this through severance
and reading in
 S 172(1): law that is declared inconsistent with Constitution is invalid to extent of that inconsistency
- Allows for severance, which enables court to remove those parts of a law that are inconsistent with Constitution to extent
that it is grammatically possible and still gives effect to objects of legislation
- Commencement of an order – Courts are empowered to make any order that is just and equitable including an order
limiting retrospective effect of declaration of invalidity and order suspending declaration of invalidity for any period and
any conditions to allow competent authority to correct defect – Fourie case
 Reading-in:
- Court adds words to a certain provision to keep making it constitutionally permissible as opposed to striking down
provision in its entirety
- Reading-in and severance are preferable approaches as opposed to striking down a provision entirely, because to do this
would interfere with separation of powers
 S 172(2)(a) –
- HC, SCA, or a court of a similar status can make an order of Constitutional invalidity
- Such an order lacks force until CC has confirmed that invalidity
 Reading-down
- When a provision that is inconsistent with Constitution is constructed narrowly to keep it constitutionally permissible
- Just like severance and reading-in, it is preferable because it does not unduly interfere with separation of powers, and it
keeps legislation ‘alive’ because striking down an entire provision is undesirable
 S 39(2) – Interpretation Clause
- Courts must promote spirit, purport and objects of Bill of Rights when interpreting customary law, common law, or
legislation
- In this context, Court is keeping legislation consistent with Constitution

Other remedies
 Constitution recognizes rights outside of Bill of Rights under common law or customary law – remedies still apply
- Damages
- Interdicts
- Restitution
 Other remedies emerge as Court orders
- Civil Procedure
- Mandatory Order
- Prohibitory Order
- Declaratory Order