Constitutional

law
(PBL2000W)
Second semester notes
and case summaries: The
Bill of Rights

Rémy Ngamije with contributions

from K. Rosholt, P. Dewey, S.
Jackson, K. Mutendadzamera, U
Moyo, L. Jacobs, Y. Allen & J.
Griffiths
Section 12: Introduction to the Bill of Rights

The Stages of Bill of Rights Litigation

1. Procedural issues
Application and the principle of avoidance
 The first question that needs to be answered when litigation in the realm of the bill
of rights is who benefits from the Bill? Who is bound by it? And whether the Bill
applies to matters arising before its commencement.
 Answering these questions involves asking about the reach and scope of the Bill.
 The application is not only concerned with whether the Bill applies, but alos how it
applies in a legal dispute.
o The question then, is what the relationship between the Bill and ordinary
law is.
 It can be argued that the Bill (beneficiaries, territories, duties and time) determines
the legal disputes to which the Bill directly applies.
 In other words, the Bill intrinsically states what types of disputes can be brought
before it.
o In this functional are where the Bill is applicable, it overrides ordinary law.
o In this line of the thought, the Bill also generates it own remedies. This
method is called the direct application of the Bill.
 Another argument states that the Bill contains a set of values that must be
respected whenever the common law or legislation is interpreted, developed or
applied.
 This method is aimed at creating harmony between the Bill and ordinary law. It is
called the indirect application of the Bill.
o When applied in this context, the Bill does not override ordinary law.
o It does not generate its own remedies.
o In this case, law and legislation is interpreted in a way that brings into line
with the Bill.
 In solving legal disputes, courts are required to solve all other issues before delving
into matters that involve the Bill.
 A principle of the avoidance method is that the special rules in the Bill relating to the
standing of litigants and the jurisdiction of the courts only apply when it is not
possible to give effect to the values in the Bill by applying, interpreting or developing
the ordinary law.
 If it is possible to resolve a dispute using indirect application, then ordinary
procedural rules and remedies of ordinary law apply to the dispute.
Justiciability
 An applicant may lack standing to seek a remedy.
 In other cases, the issue may have become moot or academic and therefore not
justiciable.

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  An issue may also be non-justiciable because it is not yet ripe to warrant a decision
from the courts.
 The BOR contains special rules about issues to which it directly applies. In these
cases, it demands a broader approach to standing.
 In cases of indirect application – the ordinary rules of ordinary law apply.
Substantive issues
 At the substantive stage of litigation, the court is concerned with the substance of th
applicant’s allegation that a right has been infringed by law or conduct of the other
party.
 The court must assess this on the merit of the allegation.
a) Interpretation
o The court must determine whether the Bill protects particular
interests of the applicant.
o It must then determine whether the law that has been challenged or
the conduct of the respondent impairs the interests of the applicant
and thereby trespassing on the area protected by the Bill.
b) Limitation
o If the court finds that a law or conduct of a third party does infringe
on a fundamental right, it must consider whether the infringement
is justified.
o Not all infringements are unconstitutional. If the conduct or law
passes the limitation test – then it will survive a constitutional
challenge.
Remedies
 If the court is satisfied that law or conduct violates a right protected in the Bill, then
it must grant a remedy.

2. Onus
The CC has divided the issue of onus into two substantive stages: interpretation and
litigation.
The applicant has to show that an infringement has taken place.
 This requires the applicant to prove on the facts that they rely on.
 The respondent must then show that the infringement is justified in terms of s 36.
 In addition, the applicant must also show that the Bill applies to the challenged law
or conduct, that he or she has standing, that the issue is justiciable and that he or
she is in the right forum to obtain the desired relief.
 Only once the issues above have been satisfied by the applicant can the respondent
be asked to justify their conduct in terms of s 36.
The question of the appropriate relief is more complicated – when the Bill is indirectly
applied, an ordinary remedy is applied.
When the Bill is directly applied, the court must come up with a remedy that nullifies the
conduct or law that violates the Bill.

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Application of the Bill of Rights
Legal rights are a correlative relationship. There are duties and obligations, wherever there is a right
to something.

Direct application of the Bill of Rights

1. Beneficiaries
a) Natural persons
 Most of the rights in the Bill are available to “everyone”. They cannot be denied to
anyone.
 Some rights are accorded to narrower categories of beneficiaries, such as the right
to vote which is reserved to adults only.
 The activities of persons excluded from the scope of a right will not be protected by
the right.
b) Juristic persons
 A juristic person is entitled to rights in the Bill, to the extent required by the nature
of the rights and the nature of that juristic person.
 The activities of juristic persons will not always fall under the Bill of Rights. When
deciding what rights are available to juristic persons, it is important to consider
what:
o The nature of the fundamental right
o And the nature of the juristic person.
 The nature of the juristic person can prevent them from benefitting
from a certain right. For example, the right to physical integrity
cannot be afforded to a juristic person.
 Some rights though can be exercised: equality (s 9), privacy (s 14),
freedom of expression (s 16) and others.
 The nature of the juristic person places greater restrictions on the
availability of human rights to juristic persons.
 As for private juristic persons, the size or activities of the juristic
persons are not necessarily decisive. Juristic persons as an entity are
not always protected by the rights in the Bill, but the natural
persons behind the juristic person are.
 Provided that a juristic person has a sufficient interest in its own
capacity, or the as an association, then it may challenge laws or
conduct on the basis of fundamental human right infringement.
c) Declining rights: the problem of waiver
 Waiver occurs when a person who is protected by the Bill decides to waive that right
or not to benefit from it.
 Waiving a right must be distinguished from choosing not to exercise the right.
 Waiver is an undertaking not to exercise a fundamental right in future – such as the
restraint of trade agreements.
 A waiver cannot make unconstitutional laws or conduct valid. Thus, a person cannot
undertake to behave unconstitutionally.

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  Many of the freedom rights may be waived as long as the subject does so clearly and
freely and without being placed under duress. There would need to be informed
consent to waiving a right.
 Even if some rights cannot be waived, it does not mean that the waiver becomes
legally irrelevant

2. Duties under the Bill of Rights

a) Direct horizontal and vertical application of the Bill of Rights
 Traditionally, the Bill regulates the relationship between the state and the individual.
This is because there is an uneven power relationship between the two and the
individual needs protection from the state.
 The Bill of Rights recognises that individuals can also abuse the rights of others and
goes further by making it applicable horizontally.
 Direct vertical application: duties of state actors
o Legislatures
 Legislatures are bound by the Bill when they perform non-legislative
functions such as determining internal arrangements, proceedings,
rulings, etc.
 In this manner, freedom of speech is completely guaranteed.
o Executive
 The Bill binds the executive and all organs of the state.
 It also binds the state when law is made.
 The President is required to uphold the Constitution and the Bill of
Rights.
o Judiciary
 Judges and magistrates are required to act in a manner that
complies with the Bill of Rights.
 Members of the judiciary must also perform administrative
functions in light of s 33.
 It is difficult to determine the extent to which the executive is bound
by s33.
 Direct horizontal application: duties of private actors
o The direct horizontal application of the Bill is envisaged in section 8 (2).
o Horizontal application is seen most when common law is brought to the
court with the intention of invalidating it.
o The court gives a broad approach to standing in rights litigation.
o The remedies of rights litigation are not attractive to the litigants – they are
also hard to predict.
o Invalidation of unconstitutional state conduct is an attractive avenue for
litigants.
o The Bill has done little to reduce legal disputes between private citizens.
o Khumalo v Holomisa is the first time that the CC directly applies the direct
horizontality provisions of the Bill. It holds that the Bill must be applied to
the common law where appropriate.

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 o CC states that s 82 declares that a provision applies to private conduct. It
does not say that a “right” can apply to private conduct.
o Rights cannot be determined a priori and in the abstract.
o The purpose of a provision is important in determining whether it is
applicable to private conduct or not.
o The nature of any duty imposed by the right must be taken into account.
This recognises that private or juristic persons are often primarily driven by a
concern for themselves. On the other hand, the state is supposed to be
guided by concern for society as a whole.
o In some cases, it can be seen that the Bill provides whether certain rights
may be applied to private conduct.

Justiciability
Limitations on Justiciability
Not all constitutional issues heard by courts.
There are three important doctrines that will affect whether a case will be heard by the
courts: ripeness, standing and mootness.
 Standing relates to the relationship between the applicant in the case and the relief
that is sought.
 Ripeness and mootness relate to timing. They are a temporal concept.
These three concepts can be understood as enforcing the rule that courts must not burden
themselves with cases that do not have a real, earnest and vital controversy.
Litigation as far as constitutional issues are concerned must only take place when all other
legal measures have been exhausted. This is in line with the principle of avoidance which
states that as far as possible, constitutional issues should be avoided. It is preferable to fins
solutions in the ordinary law than through constitutional means.

Standing
Section 38 of the Constitution outlines who can bring a case to court. It states that:
 Anyone acting in their own interest,
 Anyone acting on behalf of another person who cannot act in their own name,
 Anyone acting as a member of, or in the interest of, a group of persons,
 Anyone acting in the interests of the public, and an
 Association acting in the interest of its members can bring a case to court in
instance where rights have been infringed.
Standing concerns whether person who approaches court is the appropriate person to do so
- it is concerned with asking whether the person that is looking to bring a case to court is the
right person to do so.
SA common law limits the approach to standing. Under SA common law, the person who
comes before court must have been in some way been affected directly by violation of
rights.
 Thus, under the common law, only persons whose rights have been affected
negatively have standing to argue a rights infringement.

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 S 38 enforcement allows for mush broader approach to standing – it allows persons to bring
cases on behalf of other parties. This was the ruling in Ferreira v Levin NO where Chaskalson
held that “although a court should not concern itself with abstract and hypothetical issues,
this does not warrant a narrow interpretation of standing.
In cases of Bill of Rights violation common law standing does not apply. This has been
changed by section 38.
 It must be noted that in instances where the common law infringes section 38 of
the Constitution, then such law will be invalid.
S38 only applies in situations where litigant alleges right in the Bill of Rights has been
infringed. This means that this section will not apply to law or conduct that falls outside the
Bill of Rights. This section will also not apply instances where the Bill of Rights is indirectly
invoked by section 39 (2).

The doctrine of objective constitutional invalidity

In Ferreira the CC was asked to decide whether an examinee in a liquidation enquiry could
challenge a provision in the Companies Act on the Basis of the fair trial rights afforded to
‘accused person’.
The Court used s7 (4) of interim Constitution (equivalent of s38).
Ackerman J :S7(4) placed qualification on groups which could approach court
 Any person who approaches court must either allege that their rights, or the
peoples who they represent rights had been directly violated.
 In this case examinees were not the accused and sought to challenge in their own
interest. Under this reasoning, they did not qualify and did not have standing.
Majority ruling disagreed with this reasoning:
 Examinees should be allowed to challenge legislation as they had sufficient interest
in declaration of invalidity – their interest in the relief was not hypothetical or
abstract – there was genuine interest in the relief that was sought. They had a
genuine interest in the declaration of invalidity that they sought.
 The CC went on to declare that as long as court had jurisdiction, it would grant
standing to applicants if:
o There is an allegation that a right in the Bill of Rights has been infringed or
threatened and,
o The applicants can demonstrate, with reference to the categories listed in s
38 (a) to (e) that there is a sufficient interest (not necessarily their own
interest) in obtaining the remedy they seek.
The CC held that a mere allegation that a right in the Bill of Rights has been infringed will
grant the applicant standing.
 It does not have to be a particular person’s fundamental right.
 The interest must however, be sufficient ad be linked to one of the listed categories
in section 38.
 If the applicants approach the court themselves, they must themselves have
sufficient interest.
 If the applicant approaches the court on behalf of another person, they must show
that the person has sufficient interest in the remedy sought.

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The allegation that a fundamental right has been infringed or threatened
The applicant must allege that right has been violated or threatened – only an allegation is
needed.
The basis of the allegation must be clearly set out – this is done to ensure that it is the Bill of
Rights that forms the basis of the litigation.
The broad approach is only triggered in instances where fundamental rights are at stake.
Allegation is sufficient, proof is not required.

Sufficient interest and the Categories of Persons

There has been no test laid down regarding sufficiency.
It is submitted that the person or applicant must at least be directly affected by the law or
conduct before he or she has standing to challenge it.
In principle, nothing prevents an applicant from supporting a claim for standing with
reference to more than one category.
i. Persons acting in their own Interest
o More readily regarded by court as sufficient
o Link between interest and remedy must not be to tenuous.
ii. Persons acting on behalf of another person
o Person may act on behalf of another person who cannot act for themselves.
o Represented person must consent to the action.
o Represented person must have sufficient interest in the remedy requested.
iii. Person acting as a member of a group or class of persons
o This clause allows for class action litigation.
o In class action other members of group who are not formally and
individually joined benefit from and are bound by outcome unless the
members of the class decide to opt out.
iv. Persons acting in the Public interest
o This is the most difficult of the categories.
o It must be shown that person is acting in the public interest.
o It must then be shown that public has sufficient public interest
o The standing in this case is wider than that of a class of persons since it is
the public as a whole that is being represented and not just a small group.
Factors relevant to determine whether person is acting in public interest:
 Whether is a reasonable and effective means in which challenge can
be brought.
 Nature of the relief and its extent of general and prospective
applicability.
 Range of persons who will be directly/indirectly affected.
 Opportunity of affected people to present evidence and argument in
court.
 The degree and vulnerability of people affected.
 The nature of the right alleged to be under infringement.
 The consequences of the infringement.
o Timing is crucial when looking to argue under this section.

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 o It is also of vital importance that the person who argues for the public
presents the court with enough evidence and argument to decide the issue.
v. Associations acting in the interest of their members
o The applicant must show that members have sufficient interest in the
sought remedy.
o It must also be shown that the alleged rights are under infringement.
o It is not necessary to show common law requirements are complied with

Ripeness
The CC must decide real and not hypothetical cases that will or might not occur. It must be
established that the applicant faces actual or imminent harm to a right.
Before court takes case must be sure that the applicant faces actual or imminent harm.
The principle stems from the doctrine of avoidance.
Ripeness is not precisely defined, but it has been described to embrace a general principle
that where it is possible to decide any case, civil or criminal, without reaching a
constitutional issue, that is the course that must be taken.
Ripeness entails consideration of the timing of a constitutional challenge.
The doctrine of ripeness requires that the applicant wait until the court can hear the case
and give appropriate relief.
The constitutional issue is not ripe before indirect application or non-constitutional remedies
have been sought or considered.
 But it must be emphasised that where the applicant would suffer serious and
irreparable harm by being required to exhaust the remedy, it would be
unreasonable to delay the constitutional challenge.
Issues of standing and ripeness often overlap. It is often the case that the applicant will not
have sufficient interest in the requested remedy because the issue is not ripe.

Mootness
Mootness prevents the court from deciding an issue when it is too late.
A case is moot if it no longer presents and existing or live controversy which should exist if
the court is to avoid giving advisory opinions on abstract propositions of law.
In JT Publications it was held that the issue was moot because the harm that was done was
already past.
The CC determines mootness based on the date of the hearing before the CC or even when
it decides the matter.
Even though a matter may be moot, it does not necessarily constitute an absolute bar on its
justiciability. The CC has discretion on whether to hear it or not.

Barkhuizen v Napier 2007 (5) SA 223

The facts:

Applicant enters into short term insurance claim, protecting his BMW. Applicant crashes his
BMW and claims from the respondent. The respondent repudiated the claim. Two years
later, the applicant institution action against the defendent claiming the value of the
insurance plus interest. The summons was met by a special plea from the respondent, on

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 the grounds that the respondent was released from the contract based clause 5.2.5 of the
contract, which releases him from liability if summons are served ninety days after
repudiation.
The applicant concedes non-compliance with clause 5.2.5 but alleged that the clause was:
 Contrary to public policy, because (here he is applying the Bill of Rights indirectly):
o Prescribes an unreasonably short time to seek action.
o It constitutes an infringement on the right of the insured to seek the
assistance of the court, regardless of the circumstances.
 Unconstitutional, as it violates s34 of the Constitution, which guarantees right of
access to the courts (here he is applying the Bill of Rights directly).
Can parties, by a term of contract, restrict the right of access to a court after a certain
amount of time has expired on the contract? Only when it is impossible to comply. In this
case, no.
The only time that the court can intrude on a legitimately made contract is when the
contract is impossible to comply with. In this case, two questions need to be asked:
 Were the terms reasonable? The court held that the time specified was enough
time to conclude the contract and that the contract was fairly entered into.
 The second question was whether the clause was too harshly enforced, taking into
account the circumstances of the applicant. Did the circumstances of the applicant
preclude him from fulfilling the terms of the contract? Clearly not.
Appeal dismissed.

Khumalo v Holomisa
In this case a newspaper published defamatory remarks about Holomisa who in turn sued the writer
of the article. The defence based on the direct application of s16 of the Bill of Rights or alternatively
through common law by way of interpretation of s39 (2) to reflect the spirit purport etc.

Khumalo claimed in his defence that unless, the respondent could prove the falsity of the
statements, that the allegation/information was of public interest and therefore respondent could
not be entitled to recover damages.

This raised the question whether the common law of defamation was inconsistent with constitution,
as publication does not necessarily have to be false in order to be actionable for defamation.
Therefore limiting the press rights to freedom of expression under s 16.

O’ Regan J
South Africa’s law of defamation is based on the Roman’s actio injuriarum which allows one
person to claim damages from someone who has unlawfully infringed on their personality
rights. One of these rights is the right to reputation or fama.
In the judgment, O’ Regan J highlighted that following requirements need to be fulfilled to
constitute a common law act of defamation:
a.) wrongful
b.) intentional
c.) publication

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d.) of a defamatory statement
e.) Concerning the plaintiff.
It was emphasised that the statement does not have to be false for it to constitute
defamation.
There is a rebuttable presumption that if the defendant publishes a defamatory statement,
it was both unlawful and intentional (these are the elements a def. would have to rebut as a
defence.)
There are several defences for the claim of unlawfulness:
 Firstly, it can be claimed that the story was true,
 That it was published in the pursuit of public interest,
 That it amounted to fair comment and that the comment was made on a privileged
occasion.
 The fourth defence, created by National Media v Bogoshi is reasonable publication.
o When using this defence, the factors to look for include reliability of source,
the steps taken to verify the information, the nature, the tone and extent of
the allegations and the reasonableness to publish certain facts at a
particular time in a particular way.
o Thus, the media would need to prove that the allegations were reasonable
in the circumstances in order to invoke this defence.
The mass media could not rely on the defence that the publication was not intentionally
injurius. Thus, strict liability was always imposed on mass media.
In Bogoshi strict liability was eliminated with freedom of expression and the media’s role in a
democratic society being highlighted as the main reasons for doing so.
It followed that after this; some more requirements were added to the defence of intention.
 This was a lack of knowledge, but it would have to be proven that this could not be
attributed to negligence. It had to be genuine.
Horizontal application of s 16:
 In the case, the applicants claim that because s 8(1) states that the Bill of Rights
(BOR) binds the judiciary, s 16 must have direct application to the common law of
defamation.
 This is different to the Interim Constitution which claims that the BOR is not binding
on the judiciary. However, this argument cannot succeed because s 8(1) and 8(2)
clearly distinguishes between who should be bound by the BOR.
 Once it has been decided that a natural person must be bound by the BOR, then the
common law must be developed so that legislation does not have to give effect to
the right.
Is the common law of defamation inconsistent with the constitution?
 The applicants alleged that not requiring the plaintiff to prove the falsity of
defamatory statements is inconsistent. But there is no powerful interest in
falsehood and is not included in the definition of ‘human dignity’.
 Additionally, the onus is on the defendant to prove that the defamatory statements
were not unlawful. Thus, the risk of publishing defamatory statements lies with the
defendant. This creates a ‘chilling effect’ and a publisher will think twice before
publishing defamatory statements.

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  The chilling effect however, is lessened considerably with the new defence of a
reasonable publication. Is this constitutional?
 But, establishing the truth in these matters is often very difficult and this will often
have a zero-sum result. This zero-sum result is avoided with the application of the
principle of a ‘reasonable publication.’
 Person’s in public office have a diminished right to privacy .
 Reasonable publication will ensure that publisher’s act with care when publishing
defamatory material.
 Therefore: The defendant may sometimes succeed due to reasonable publication
defence in cases where the stories about the plaintiff are false. The applicant will
succeed if the story was not reasonable within the circumstances.
 Ratio: The media will only be held delictual liable if they cannot prove that the story
was true and in the public interest or reasonable within the circumstances.
 There is no need to develop the common law on defamation.

Weare and Others v Ndebele and Others 2009 (4) BCLR 370 (CC) paras 48-60
In terms of s 22(5) of the Ordinance ‘natural persons may apply for and hold bookmaking licenses in
KZN; juristic persons may not’ (para 49). The Premier argued that such a differentiation, ‘the
regulation of gambling is a legitimate government purpose’ (para 50) as ‘*i+t is more expensive and
difficult to monitor juristic persons and to hold them accountable, than it is with regard to natural
persons’ (para 50).

The HC rejected the argument stating that ‘the aim of s 22(5) of the Ordinance was to ensure that
one identifiable person could be held accountable, nothing prevented the legislature from requiring
that one person, together with the juristic licensee, be responsible to the authorities’ (para 51).

Applicants therefore argued that s 22(5) was obsolete’ (para 52) and ‘no longer rationally linked to
the goal of regulation, and thus no longer serves a legitimate government purpose’ (para 52). The
Premier argued that ‘the HC exceeded the bounds of the rationality enquiry by examining alternative
ways in which juristic persons could be regulated’ (para 54).

The question of law: ‘*W+hether the policy choice that s 22(5) represents is rationally linked
to the aim of regulating gambling?’ Ratio: Yes.
The court’s reasoning:
 Van Der Westhuizen J first assumed that a juristic person can be the bearer of the s
9(1) right in terms of s 8(4) where juristic persons are ‘entitled to the rights in the
BOR to the extent required by the nature of the rights and the nature of that juristic
person’. He considered that the nature of a juristic person is such that it is ‘difficult
to hold individuals responsible’ (para 53).
 He then considered that if the applicants were correct, then ‘once the executive
declares that a piece of legislation should be replaced or substantially amended, that
legislation becomes irrational’ (para 56).
 Therefore ‘any piece of “old” legislation would be unconstitutional as soon as reform
is proposed.
 This result is not only absurd, but it confuses a better or worse policy with a rational
or irrational one’ (para 56).

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 He stated that applicants were only able to demonstrate that the differentiation was
‘arguably unsatisfactory in some respects’ (para 57) and were not able to show that
it was ‘arbitrary or capricious’ (para 57).
 Therefore they were not able to show that s 9(1) was breached. He then stated that
‘it is for the legislature to select the means to achieve the objectives of
government… to decide when the moment has arrived to change methods and
reform legislation’ (para 58).
 He considered the further argument that ‘the purpose or aim of s 22(5) was… to
exclude juristic persons from the bookmaking industry and that, given modern
business realities and the new constitutional validity of equality, this is no longer a
legitimate government purpose’ (para 59).
 He however rejected such an argument as it ‘confuses the end with the means’ (para
60). Such an argument was considered to be beyond the s 9(1) enquiry.
 The challenge to the differentiation failed.

Constitutional law notes by Rémy Ngamije, 2010.

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Section 13: Interpretation of the Bill of Rights
Constitutional interpretation is the process of determining the meaning of a constitutional
provision.
In the case of the Bill of Rights, interpretation means finding out what the provision in the
Bill of Rights means.
Where the Bill of Rights is concerned, there are two questions that need to be answered:
1. The meaning or scope of the right and then,
2. Whether the challenged law or conduct conflicts with the right.
The Bill of Rights sometimes protects certain kinds of activities.
In other cases the Bill might demand the fulfilment of certain objectives – this can be seen
where socio-economic rights are contained.
Where the Bill protects certain kinds of activity, it places negative obligations on the parties
concerned not to restrict or hinder the activity.
Where the Bill requires certain activities to be fulfilled, a positive obligation is placed on the
parties to bring the objectives to fruition.
The second part of inquiry involves the interpretation of the challenged law or conduct or a
determination of what the challenged conduct amounts to or what its effects are.

Interpretation
The meaning of a constitutional provision depends on the way that it is used as well as its
setting.
Some provisions of the Constitution are easy to understand. Others are vague and abstract.
 This is because many of the provisions arose from compromise – they were
negotiated and at times left open-ended so that the parties involved could be kept
happy.
Many of the provisions in the Constitution are vague and abstract.
The Constitution does not prescribe how it should be interpreted.

The point of interpretation: a generous and purposive interpretation that gives expression to the
underlying values of the Constitution

i. The text itself

A viable and obvious place to start interpretation of the Constitution is in the text itself.
In S v Zuma Kentridge AJ stated that it must be borne in mind the CC is being asked to
interpret a written instrument.
 The Constitution is a legal instrument and its language must be respected.
 If the language of the lawgiver is ignored, then it is no longer interpretation but
divination.
 A constitution embodying fundamental principles should as far as its language allows
be given a broad construction.
The constitution is made of substantive and procedural values.
 The substantive provisions in the Constitution are abstract and open-ended.

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 In S v Makwanyane it was stated by the CC that whilst paying due regard to the text of the
Constitution, it is necessary that it is given a generous and purposive interpretation that
gives expression to the underlying values of the Constitution.
Kentridge expresses that the Constitution’s text has interpretive limits and that where a
plain meaning can be seen; the plain meaning should be preferred as opposed to sacrificing
it in favour of a broader interpretation.
 In S v Makwanyane it seems as though a literal meaning will be an acceptable
interpretation only if it accords with a generous and purposive interpretation that
gives expression to the underlying values of the Constitution.
ii. Purposive interpretation
Purposive interpretation aims at teasing out the core values that underpin the listed
fundamental rights in an open and democratic society.
It follows that the interpretation of a provision in the Bill of Rights will not only give meaning
to the literal text, but also to the interests that it seeks to protect.
 Purposive interpretation takes into account the character, language and objects that
used to articulate the specific right or freedom, the historical origins of the concepts
enshrined and where applicable the meaning and purpose of the other specific
rights and freedoms.
 This method of interpretation tells us that once the purpose of a right is discovered,
then the scope of a right can be determined.
 This method of interpretation requires the making of a value judgment about what
aspects of the right are important.
It must be emphasised that while the values underpinned in a right have to be objectively
determined by reference to norms, aspirations, expectations and sensitivities of the people,
they may not be equated with public opinion.
 If public opinion were to be decisive, the protection of rights may well be left to
Parliament which is answerable to the public.
 Public opinion will not protect the rights of minorities who cannot gain a say in a
democracy.
This manner of interpretation does not provide for how a value judgment can be made.
iii. Generous interpretation
This means that interpretations must favour rights and not their restrictions.
It means that rights must be given as wide a field as the language permits.
In S v Makwanyane this was emphasised and shown in the way that the CC interpreted the
right to life.
 This generous interpretation was also used in S v Mhlungu where the CC broadened
a provision of the Interim Constitution – this broadening allowed people with
pending cases to rely on provisions in the Bill of Rights before they had actually
come into place.
 The majority held in this case, that where the text allows, a broad interpretation
should be preferred over a narrow interpretation if the result of the latter would be
to deny persons the benefits of the Bill of Rights.
iv. Context
The CC states that the context of the words is important since meaning changes with time.

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 The wider sense of the word “context” means the historical and political setting of the
Constitution. The narrower meaning is the context provided by the Constitution itself.
Historical context:
 The Constitution is a reaction to SA’s history.
 A purposive interpretation will therefore be sensitive of this history and try not to
repeat the mistakes of the past.
 Using the drafting history, the CC in S v Makwanyane showed that by leaving the
right to life unqualified, the drafters left it to the CC to interpret it.
Textual context:
 The CC used the provisions of the Constitution to ascertain the context for the
interpretation of specific rights in the Bill of Rights.
 This can also be called systematic interpretation – it involves recognising the
Constitution is a document as a whole and that it should not be read as if it
consisted of a series of individual provisions read in isolation.
 The duty to read provisions against the context of the Constitution as a whole also
requires courts to harmonise the various provisions and give effect to them.
 In S v Makwanyane the CC used a number of rights (human dignity, right to life) to
ascertain the unconstitutionality of the death penalty.

S v Makwanyane
The judgment in Makwanyane highlights the two-step approach to the interpretation of the
Bill of Rights. In it, it is emphasised that it is different from the US method of interpretation
where courts are required to consider rights in their narrowest sense.
In SA, when interpreting the limitations of a right (such as the right to life in this case), it is
not whether punishment for a crime by capital punishment is correct – it is whether such
punishment would be acceptable in the kind of society that the Constitution envisions SA to
be.
It was highlighted in the case that it is for the legislature or the party relying on the
legislation to establish that such punishment would be justified and not the party arguing
that it was not justified.

New National Party v Government of the Republic of RSA

This case was concerned with the Electoral Commission’s decision to have voters present an ID with
a barcode prior to registration. Under the new laws of the EC, it was argued that the barcode ID
facilitated the election process by making identification of eligible voters easier. The NNP argued
that this measure retarded the right to vote and that the measures taken by the EC were
unconstitutional.

In the judgment, Yacoob J (for the majority) argued that it was not unconstitutional because it was
not infringing on the right. He highlights that the EC is charged with making sure that free and fair
elections occur in SA and that the methods in which they achieve this is up to them to decide
(provided that they are mandated by the Electoral Commissions Act of SA and that they are in line
with the Constitution). Yacoob J also argues that the actions taken by the EC were not unreasonable
– that they were connected to a legitimate government purpose, that they were not capricious or
arbitrary and that it is not for the CC to decide whether government is acting unreasonably. He

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argues that the CC is only there to decide whether the actions of the EC affect the right in question.
He also argues that it is up to the applicant to show that the right to vote has been affected.

In dissent, O’Regan J argues that the EC’s actions are too wide and that they affect the right to vote.
She argues that the right to vote in South Africa is a vital source of democracy. She points out its
history in the state and how it was used to disenfranchise the large majority of the country. She goes
on to say that the right to vote is of fundamental importance in South Africa and that its
safeguarding must be upheld in RSA.

She disagrees with Yacoob J, stating that the actions of the EC are not reasonable. She bases her
argument on the fact that the EC should adopt measures that allow as many people as possible to
vote in the country (given RSA’s past) and that the measures taken by the EC can be reviewed by the
court. She argues strongly that where rights are concerned (in this case, the right to vote), the CC has
the imperative to make sure that a broad interpretation of rights is taken – in this case, it would
mean asking the legislature to make sure that its actions are reasonable and connected to a
legitimate government purpose.

Her argument seems to hinge on the fact that not many people in RSA are aware of the new election
regulations, and that this actually affects the right to vote (a fundamental right in the new South
Africa).

S v Zuma
The case was primarily concerned with the interpretation of an accused’s access to a fair trial. It did
however highlight important facts about the interpretation of the Bill of Rights in RSA. One of the
most important things that were stated in the case was that the Constitution is a written document
and that there is any number of ways to interpret its meanings. The case leans towards what was
stated by Lord Wilberforce – that where possible, it is advised to have a purposive and broad
interpretation of the rights in the Constitution as broad a meaning as possible.

The case also highlights that the Constitution should be interpreted using the legal history, traditions
and usages of the country concerned.

One of the more salient points in the case is that the Constitution, where possible, should be used to
remedy the wrongs of the past. This can be taken to mean that where a constitutional right is under
attack, its successful defence may depend on the manner of its treatment in the past. This seems to
suggest that constitutional interpretation must shy away from interpretations that would in some
way lead to the traumatic history that RSA has had.

The judge in the case is wary of the numerous challenges that are faced when interpreting clauses in
the Bill of Rights. He warns that judges must refrain from bringing their own preconceptions and
personal influences to the interpretive processes.

The judge also highlights that the rational connection test us a useful screening test, but that it is not
conclusive. The test first asks whether there has been a contravention of a fundamental right that is
guaranteed in the Constitution. It is then asked whether this fundamental right has been limited in a
manner that satisfies the limitations clause. This is different from the single-stage approach that is
used in the US.

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S v Mhlungu
The case was brought to the CC with regard to a provision in the Constitution that stipulated that
“All proceedings which immediately before the commencement of the Const. were pending before
any court of law, including any tribunal or reviewing authority established by or under law, exercising
jurisdiction in accordance with the law then in force, shall be dealt with as if this Const. had not been
passed: Provided that if an appeal in such proceedings is noted or review proceedings with regard
thereto are instituted after such commencement such proceedings shall be brought before the court
having jurisdiction under this Const.” – Section s 241(8) of the Interim Constitution.

The issue that was brought before the court was whether the provisions in the Constitution applied
to cases that were in motion before the Final Constitution was enacted. The gist of the problem was
that effectively, two constitutions could come into play – one would have the Bill of Rights
protecting fundamental rights and the other would not. Therefore, would an accused person have
the right to rely on rights in the Bill of Rights if their case was brought to trial prior to the enactment
of the 1996 Constitution? In brief, the court stated that this was so.

The reason that the CC agreed with this was because to take a literal interpretation of the clause
would lead to a distortion of the rights that were in the Constitution. People accused of crimes could
be prosecuted according one system of jurisprudence and other according to another depending on
when they were indicted. Mahomed J stated that this was not the way in which to go about
interpreting the relevant section of the Constitution – to take the literal meaning would not be giving
a wide berth to the rights and it could lead to absurd and cruel results. People prosecuted with the
new Constitution would have all of their rights protected while those prosecuted in its absence
would not – they could even face the death penalty. Such were the laws prior to the coming into
effect of the 1996 Constitution.

Mahomed J also stated that another problem with taking the literal interpretation would be the fact
that no cases would be referred to the CC. This is because the CC actually only came into effect when
the IC was drafted. Prior to this, the SCA would have been in power over all issues and would have
had to apply the law as it was in the apartheid era.

In addition, Mahomed J rejected the reasoning that certain rights within the Constitution were
procedural rights and others were substantive. He stated that there was no clear way in which to
separate the one from the other.

In a dissenting judgment, Kentridge AJ argued that a literal interpretation should have been pursued.
To defend this position, Kentridge AJ says that this would uphold the fundamental concerns and
principles of the Constitution. He also

Constitutional law notes by Rémy Ngamije, 2010.

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Section 14: Limitation of rights and remedies

Limitation of Rights
Limitation is a synonym for infringement or “justifiable infringement”.
A law that limits a right infringes that right.
The infringement will not be unconstitutional if it takes place for a reason that is accepted as
a justification for infringing rights in a free and democratic society.
In other words, not all infringements are unconstitutional.
If rights can be overridden simply on the basis of that the general welfare will be served by
that infringement, then there is little cause for entrenching the rights in section 2 of the
Constitution.
The reasons for limiting a right need to be exceptionally strong – the limitation must be
justifiable.
The limitation will also be allowed if there is no other realistically available way in which the
purpose can be achieved without restricting the right.

The two stage approach

The Constitution has a general limitations clause contained in section 36.
It is general because it applies to all rights in the Bill of Rights and provides that all rights
must be limited according to the same criteria.
In Bill of Rights litigation, there are two steps that are taken before an issue is heard in court:
 First, there is the determination of whether a right has been infringed by law or the
conduct of the respondent.
o This stage is essentially an interpretive state.
o The court must determine the scope of the right and determine whether it
has been infringed within this scope.
 Second, if the answer to the first stage is positive, then there is the justification
stage where it is asked whether the justification is permissible.
o This stage occurs when the person that is enforcing the limitation argues
that the limitation is justifiable.
o Even if the respondent does not discharge the burden of proof, the court
must nonetheless try to consider that the limitation of the right could be
justifiable.
o This was the case in National Coalition for Gay and Lesbian Equality v
Minister of Justice. In this instance, the Minister did not try to defend the
laws that were enacted but the CC had to consider the possibility that laws
could be justifiable limitations of the rights in question.
o In recent cases, the CC has stated that only a cursory limitation analysis
should be conducted where the respondent makes no attempt to defend
the limitation.

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 The question of legitimate infringement of a right involves more than a factual enquiry than
the question of interpretation. Evidence must be shown that supports the justification of
the limitation in terms of section 36.
 A court is not allowed to determine in the abstract whether a limitation is
legitimate or not – it must use evidence provided.
 In instances where justification rests on factual or policy considerations, then the
respondent must put such material before the court.
 Failure to adduce enough evidence could lead to a negative finding for the
respondent.

Criteria justifying the limitation of rights

Law of general application

1. Authorised by law
 Only a law of general application can limit a right in the Bill of Rights.
 This is the minimum requirement of a limitation.
 The limitation must be authorised by a law and the law must be of general
application.
 There are principles that guide this thinking:
o One is that the government derives its power from the law.
o Thus to exercise this power, it must be granted by the law otherwise it will
be an unlawful government.
 Based on interpretation, it seems as though all forms of legislation –whether
delegated or original – qualify as law. This is the same for common law (private and
public law) and customary law.
o A mere policy or practice of the state cannot qualify as law. This is the
reason why when it comes to socioeconomic rights limitations analysis is
rarely applicable. When the government is furthering socioeconomic rights,
it does so in the form of government policy and not in terms of a law of
general application. And since the courts are lax to interfere in government
policy, it is often not possible to apply the limitations clause.
 The courts also have the power to limit a right through their inherent power to
develop the common law.
2. General application
 The law must be of general application.
 This means that the law must be sufficiently clear and accessible to the people that
it applies to so that they can adjust their behaviour to meet its demands.
 The law must also apply impersonally and equally to all and it must not be
arbitrary. Section 36 prevents laws that operate against this principle.
o Arbitrariness is especially prevented and watched out for. In part due to
South Africa’s history. It led to the unequal treatment of people.
o Non-arbitrariness is the highlight of a constitutional state.
 In President of South Africa v Hugo the CC was asked to consider a presidential
pardon that released a certain class of prisoners and not others. This was contested
on the grounds that it was a violation of the right to equality.

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 o The majority found that this was not so. Mokgoro J dissented stating that
the law was unfair discrimination.
o To defend her stance, she stated that a law must have certain features:
 It must be adequately accessible.
 It must be formulated with sufficient precision to enable citizens to
regulate their conduct.
 The Presidential Act, according to Mokgoro J satisfied all of these
requirements and was sufficiently similar to delegated legislation to
be referred to as law.
 The absence of a parent or enabling statute – where all delegated
legislation gains its power – did not provide grounds not treat the
Act as law. She argued that the Act derived its power from the
Constitution and could thus be treated like law. According to her
logic, what the President did amounted to a law because it was
derived from the Constitution. This reasoning was not accepted by
the CC.
o Kriegler J did not agree with Mokgoro J and stated that the Presidential Act
was nothing more than a state directive that issued to specific officials.
 It was not of general application.
 It was non-recurrent and specific.
 It was intended to benefit particular persons or classes of persons,
 And took on the form of an executive order. In this manner, it was
more akin to government policy than a law of general application.
 Equal application means that a law must not apply solely to an individual case,
restrict the rights of a particular individual or group. It must allow like cases to be
treated alike.
3. Administrative action
 Administrative action does not qualify as law of general application.
 The requirements that rights limitations are authorised by law does not mean that
only the legislature must perform every limitation itself.
 Discretionary power can be granted to administrators that has the effect of limiting
rights. Such legislation that gives discretionary powers must have guidelines about
how the discretion can be used.
 In Dawood v Minister of Home Affairs it was stated that if broad discretionary
powers contain no express constraints those who are affected will not know what is
relevant to the exercise and what is not. If rights are infringed in this manner
without redress, then the purpose of the Constitution is nullified.

Reasonableness and justifiability in an open and democratic society...

1. Proportionality
 The limitation of constitutional rights involves the weighing up of competing
values and the assessment of proportionality.
 There is no absolute standard that is laid down for determining reasonableness and
necessity.

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 The principles that are established to enforce this can only be done on a case by
case basis.
 Proportionality involves weighing up competing interests.
 The CC stated in S v Makwanyane that the more substantial the inroad to
fundamental rights, the more persuasive the grounds of justification must be.
 The court has identified factors that must be taken into consideration when deciding
the reasonableness of a limitation:
a) The nature of the right
 The proportionality enquiry required by s36 involves weighing up
the harm done by a law against the benefits that the law seeks to
achieve.
 Some rights weigh more heavily than others. It will thus, be more
difficult to justify the infringement of such rights as opposed to
other less weighty rights.
 A court must assess what the importance of right is in the overall
constitutional scheme.
 In S v Makwanyane the constitutionality of the death penalty was in
question. The court held that the death sentence was an
infringement of the right to life, to human dignity and to freedom
from cruel, inhuman or degrading punishment. This means that for
the death penalty to be constitutional, it would have to qualify as
reasonable and justifiable under all three cases.
b) The importance of the purpose of the limitation
 Reasonableness requires the limitation of a right to serve a
purpose.
 Justifiability requires that the purpose must be worthwhile and
important in a constitutional democracy.
 In S v Makwanyane the death penalty violated the right to life,
dignity and freedom from cruelty and degrading treatment. The
state argued that the death penalty was a deterrent to people
thinking of committing crimes – this as not accepted by the court
since crimes continued to occur. The state then argued that it
prevented the recurrence of a violent crime since the criminal was
dead – the court did not accept this ground either. The state finally
argued that it was a form of retribution – the court stated that
retribution is not what the constitutional state envisioned.
 A limiting measure must serve a purpose that all reasonable citizens
would agree to be compellingly important.
 The CC stated that the following can be regarded as legitimate
purposes for limitations:
 Protecting the administration of justice.
 The prevention, detection and prosecution of crimes.
 Reduction of unemployment.
 Inspection and regulation of multiple health schemes and
the welfare of the community.

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  Protection of rights of others.
 Compliance with constitutional obligations.
 Promoting healing of the divisions of the past.
 Complying with SA’s international obligations.
 Preventing people from gaining illegal access to the
country.
c) The nature and extent of the limitation
 The infringements of the rights should not be more than what is
warranted by the purpose that the limitation seeks to pursue.
 A law that limits rights should not use a sledgehammer to crack a
nut.
 In S v Makwanyane, the CC felt that the death penalty went too far
in its attempts to reduce crime in South Africa. It had grave and
irreparable consequences.
d) The relation between the limitation and its purpose
 There must be a causal connection between the law and its purpose
– the law must tend to serve the purpose that it is designed to
serve. If the law marginally achieves the purpose, then it is not
justifiable.
 In S v Makwanyane the ends that were used to justify the means
were found to be unreasonable by the court.
e) Less restrictive means to achieve the purpose
 The limitation must be the last resort that can be used to achieve
the desired purpose.
 If there is a less restrictive manner to achieve the same goal, then
that method must be used.
 In S v Makwanyane the court stated that life imprisonment could
be used to achieve what the death penalty did.

Limitation of rights by other provisions of the Constitution

Section 36 states that other provisions of the Constitution can be used to limit rights.
The courts are reluctant to assume that provisions in the Constitution are contradictory and
will interpret them in a way that allows them to be harmonised.

Demarcation of rights and special limitation clauses

Most of the rights in the Bill of Rights are textually unqualified.
Some rights however, are qualified by language that specifically demarcates their scope.
These can be called demarcations of rights. Their purpose is definitional: defining the scope
of the right more precisely than is the case with the textually unqualified rights. An example
is Section 17 which allows demonstration of groups provided that the demonstration is
peaceful.
Demarcations have received little judicial attention.
Demarcations will come into play when the nature and scope of the right in question is
determined.
Demarcations circumscribe the right or place certain conditions on its availability.

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 The condition demarcates the right and in terms of the two stage approach, it is the first-
stage matter that must be used to determine whether the applicant’s conduct falls within
the demarcated scope of the right. In other words, it is up to the applicant that is alleging
the infringement of a right to show that he or she acted within the demarcations and that
the respondent’s conduct then infringed within the demarcations.
The Final Constitution has fewer limitations clauses.
Section 33(3) (c) which requires the legislation giving effect to the rights to just
administrative action to “promote an efficient administration” is a special limitation
clause. It relates to the state’s conduct and to the means employed and pursued in the
protection of the rights in the Bill of Rights.
 The burden of showing whether law or conduct is justified under a special limitation
provision is on the party seeking to uphold the law or conduct and not the applicant.
A limitation clause is continuously applicable while a special limitation provision applies
only in certain instances.
 Even when a state of emergency is declared, s 36 will continue to apply for the
limitations of those rights that have not been temporary suspended.

Minister of Home Affairs v NICRO and Others 2004 (5) BCLR 445 (CC) par 33-67
This case highlighted the importance of onus in limitations analysis. The case was brought to the CC
by the Minister of Home Affairs who appealed against NICRO, arguing that the government did not
have a special responsibility in providing prisoners of a certain class with voting booths. The Minister
gave various reasons for the not providing the prisoners with voting stations.

The CC rebutted all of the claims, stating that the Minister had not given enough information or
proof to support his claims. The CC dismissed the appeal.

Onus is not usually used in the context of s 36 litigation. It is not the same kind of onus that
is used in normal civil and criminal trials where the disputes of fact have to be resolved.
Onus in this case is rather a burden to justify a limitation where that becomes an issue in a
section 36 analysis.
Once a limitation has been found, the burden of justification under s 36(1) rests on the
party asserting that the limitation is saved by the application of the provisions of the
section.
The party that is contending for justification must put such materials before the court. In
other words, the party that is looking for justification is the one that is under a burden to
furnish the court with information that support its argument.
If the government wishes to defend a particular enactment, it has the opportunity and the
obligation to do so.
The state must present adequate factual material and policy considerations. Even though
the onus in s 36 is not ordinary, failure to present adequate materials to support its
arguments will result in a negative effect on the state’s argument.
In a justification analysis, facts and policy are often intertwined.
It is not always necessary that facts be presented in the same manner that they are in
normal courtroom fact-finding procedures. Certain facts or assumptions can be drawn from
empirical data.

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In instances where justification depends on a policy, it is not always possible to show that
the goals of the policy will be achieved. This does not mean that the policy is unreasonable
or unjustifiable.
If the concerns of the case at hand are sufficient and the connection between the means and
ends are sufficient, the policy might be enough to justify the action.
If the justification depends on factual material, then the party relying on justification must
establish the facts on which the justification depends.
If policy is used as a justification, then it must be proven to the court why the policy is
necessary.
There are instances however, where the court is able to make a decision without the
necessary evidence by using common sense and judicial knowledge.
Ultimately what is involved in a justification analysis is a balancing of the means and ends.
In the case presented before the court, the applicant contested that it was not possible for
the government to make provisions or means for prisoners in a certain category to vote. The
prisoners in this category where criminals who had been convicted and had been sentenced
to a jail term without the option of paying a fine.
 The minister stated that means required to provide voting stations to the prisoners
affected the integrity of the voting process.
 He also contested that the prisoners could not be termed as special cases because
they had given up the right to vote by committing crimes.
 The minister also stated that the costs and resources used to allow criminals to vote
could rather be used to aid other people in disadvantaged situations to vote.
 It was alleged by the minister that once criminals were convicted following a fair
trial, there right to vote was limited by the laws of the land.
 The minister also wanted the right to voting limited so that the government would
not look as though it was being soft on crime.
In a previous case, it was stated that prisoners have a constitutional right to vote.
The court stated that questions of costs and resources could not be resolved in the abstract
– facts and figures had to be provided.
The right to vote was also highlighted as a fundamental one for the democracy that South
Africa envisioned to be. This right could not, under any circumstances be given up.
The court felt that the argument made by the minister about the scarcity of resources was
not sufficient to lead to a limitation analysis.
The court also felt that there was no founding in the argument that prisoners would be
favoured over other citizens by allowing them to vote.
 It was decided that the fact that there were some people in the country who were
unable to make it to travel booths was not a reason to limit the rights of prisoners.
It was also stated that the government could not disenfranchise prisoners in an effort to
protect its image.
It was also stated that a government that disenfranchises a certain portion of the population
from voting cannot be called a truly representative democracy. The right to punish is
important, but it must be restrained. It cannot be used to write constitutional rights out.
This would be arbitrary and against the goals of the Constitution.

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 The court stated that government had not placed enough evidence before the court to
prove why it had chosen to disenfranchise prisoners.
The attempt by the minister to limit the right failed.

President of RSA v Hugo1997 (4) SA 1 (CC) 96-104

In this dissenting judgment, Mokgoro J argues that the presidential pardon that was given to the
prisoners amounts to a law of general application because it was promulgated, it’s power was
derived from the Constitution (which made it a law) and that as such, it was subject to a limitation
analysis. She found that the presidential pardon amounted to discrimination. Her views were not
shared by the rest of the Court.

Mokgoro J (dissenting)
Mokgoro J was unimpressed with the “vulnerable position” that was granted to mothers
that were incarcerated. She argued that while they were disadvantaged in society, they were
not in the penal code.
It was stated a precondition for the working of section 33(1) is that the limitation of a right
must occur by a “law of general application.”
Mokgoro strongly felt that the Presidential Act was in fact a law.
 She argued that the act was encapsulated in s 7(2) which also included common law
and statutory law.
 In her opinion, the Act was in the same position as common law used in delict and
other areas in private law. She saw no reason why the section could not be applied
to the administrative and common public law.
 She also stated that s 33(1) draws no distinction between any kinds of law – it
could be applied to any field of law as long as it was law.
She was of the opinion that delegated legislation was also serviced under section 33(1).
She was also of the opinion that the Presidential Act satisfied the rule of law – it was
published in the Government gazette, it was official and it applied generally.
She highlighted the fact that there was a great number of delegated legislation that would
be conceived as law – there was no reason why the Presidential Act could not be considered
as such.
She also believed it undesirable to consider a technical approach to the interpretation of
“law of general application” because this unduly reduces the types of conduct that can
justify limitations.

Constitutional Remedies
Section 38 holds that a court may grant appropriate relief, including a declaration of rights.
According to section 172, a court may grant any order that it deems to be just and equitable
in order to give effect to the rights that are enshrined in the Constitution.
Constitutional remedies flow from the direct application of rights to law and conduct.
Constitutional remedies must be the last resort that can be used to remedy a situation.
They are avoided unless they are absolutely necessary.

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 If it is possible to find a remedy in the ordinary law, then constitutional remedies are
avoided. It is stated that all remedies in ordinary law must be exhausted before the
constitutional court is approached.
To have standing in court, applicants must show that a fundamental right is violated or
threatened.
 They must also allege that they have sufficient interest in the remedy that is sought.
The sufficiency of the interest is assessed with reference to the remedy sought.
 The courts have adopted a broad approach to the sufficiency requirement.
The availability of constitutional remedies is a matter of jurisdiction – not all courts have
the same jurisdiction when it comes to handing out remedies with regard to constitutional
remedies.
Kriegler J has stated that the flexibility in providing remedies can affect the understanding of
a right. This means that since the courts are given a wide discretion to formulate a remedy,
the courts are liable to find a violation wherever a right is concerned than if there was a
narrow field of remedies to choose from.
Deciding on a remedy requires a much more pragmatic approach than that adopted in any
other stages of Bill of Rights litigation.

Unconstitutional law and constitutional remedies

There is a difference between unconstitutional laws and constitutional remedies.
The supremacy clause automatically makes any law that is unconstitutional null and void –
it as though the law was not formulated. A constitutional remedy is an action provided by
the court to resolve disputes.
Section 172 declares that where a law is found to be unconstitutional, the courts are
required to declare it as such to the degree of the inconsistency.
 In some cases, a declaration of invalidity can be a remedy.
Declaration of invalidity is not a discretionary remedy – a court is obliged to declare
unconstitutional laws or conduct invalid.
The declaration of invalidity is not the remedy that a court might always give – this is why
the court can make any order that it deems to be appropriate.
In order to bring laws into line with the Constitution, a declaration of invalidity may not be
all that is required. The court may be called on to take some positive action to make sure
that no other trespasses occur.
Declarations of invalidation may also be meaningless where the dispute occurs between
private citizens. In such cases, the CC looks at ordinary law to see if there is an available
remedy. If this is absent, a remedy must be fashioned.
The source of constitutional remedies can be ordinary law, common law and the
Constitution itself.
If it is the law that is challenged, the remedy will often be found in the Constitution. If it is
state action or conduct that is challenged, then the remedy will often be found in legislation.
There are three types of remedies:
 Prohibitory and mandatory interdicts.
 Declarations of invalidity and,
 Awards for constitutional damages.

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Flexible approaches to constitutional remedies
The Constitution provides few guidelines about constitutional remedies – it is up to the
courts to determine what the appropriate relief is in any particular case. The courts may also
fashion new remedies.
When a court is about to grant a remedy, it must consider its effect on society. It can sever,
read in or limit the retrospective effect of orders and even suspend orders of invalidity.

Purpose of constitutional remedies

Constitutional rights and remedies are complimentary.
Constitutional rights are determined by their objects.
 Violations of constitutional rights are a violation against all of society.
 Therefore, when granting a constitutional remedy, the CC should prevent future
infringements and vindicate the Constitution.
Constitutional remedies must be progressive, community-orientated and structural rather
than backward looking, individualistic and retributive.

Other factors affecting constitutional remedies

The court must not only grant a remedy to resolve a particular dispute, it must also make
sure that similarly located people are given the same solution – there is a wider public
dimension that must be taken into account.
The remedy must strike at the source of unfair discrimination.
The courts must also make sure that they do not infringe the separation of powers
principle.
The identity of the violator is also important. Courts are unlikely to grant damages for
legislative violations.
The nature of the violation must be taken into consideration.
 Systemic violations call for a structural remedy and adequate means to monitor
their implementation.
The impact of the violations on the victim must be considered.
The role of the victim in the violation must also be taken into account.
The successful execution of the court is a final factor. The courts must make a remedy that is
possible to the complied with by all parties concerned.

The constitutional remedies

Declarations of invalidity
The courts must declare unconstitutional laws or conduct invalid to the degree of their
inconsistency.
The courts though, cannot declare a law or conduct to be invalid if the resulting situation
would be more unconstitutional.
The CC may declare all law and conduct to be invalid.
The CC has stated that a courts remedy is not the final word on the issue. Legislatures may
respond by amending legislation within the limits of the Constitution.
The court should make sure that it limits itself to root out unconstitutional law and conduct
and not advise alternatives.

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 The courts prefer narrow rulings as far as constitutional issues are concerned. Broad rulings
may restrict the power of the legislation and violate the principle of the separation of
powers.
1. Severence
 This is a way for the courts to control the impact of a declaration of invalidity. It
requires the courts to remove all the parts of a law that are unconstitutional.
 It often involves removing of sections or subsections of law and leaving the rest intact.
 If the good can be separated from the bad, then severance can be carried out. This is
only possible if the good is not dependent on the bad.
o Severance aims to cure legislation of any constitutional defects. It can be
achieved through notional or actual severance.
o Notional severance entails leaving the words of legislation intact but
subjecting the law to a condition that must be fulfilled.
o Actual severance occurs when certain phrases are struck out of legislation.
o The CC has stated that where the invalidity of a statutory provision results
from an omission, it is not possible to achieve notional severance. In the case
of an omission, reading in or suspension orders must be used.
o When the bad is separated from the good, the remainder must still give effect
to the purpose of the law.
o The simple two-part test is actually hard to apply in practice.
2. Reading in
 Reading in occurs when a piece of legislation is added to by the court. This differs from
reading down which is a manner of interpretation where a piece of legislation is
interpreted so as to bring it into line with the Constitution.
o Reading down is required by s 39 of the Constitution.
o Reading in is a remedy that is granted by a court after a statute has been found
to be constitutionally invalid.
 This is used in instances where there is an omission in a law or
legislation.
 Reading in is not recommended unless doing so will increase the constitutionality and
precision of a law while remaining true to the purpose of the law. It should not be done
if it will intrude on the budgetary plans of the legislature.
 The remedy was used in Dawood v Minister of Home Affairs where the CC ruled that
reading in was in keeping with government policy.
 Reading in is also used to narrow a provision that encroaches on a right.
3. Retrospective effect of orders of invalidity
 Declarations of invalidity operate retrospectively.
 Invalidation of law that was complied with in good faith retrospectively could lead give
disruptive results.
 The party that wishes to limit the retrospective effects of the order of invalidity is under
an obligation to show the court why this must be so.
 Such orders must be balanced against the need to give effective relief to the applicant all
people in similar situations.
 Courts are required to invalidate a statute prospectively in the sense that it is void from
the date of the order.

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 4. Suspension of orders of invalidity
 Courts can temporarily suspend a declaration of invalidity. When this is done, the
legislature is allowed to correct the law within the specified time.
 The law remains effective for the duration of the suspension. The courts may grant
interim relief for applicants.
 The court must be furnished with all necessary information when it is required to grant a
suspension order.
 The court must weigh up the damage that will be caused by immediate declaration and
granting a suspension order.
 Suspensions will not be granted where declarations of invalidity will have little or no
effect.

Declarations of rights
S 38 allows a court to grant a declaration of rights.
These can be given if no law has been found to be unconstitutional.
Declarations of invalidity are not binding; they are aimed at resolving disputes.

Interdictory relief
1. Interim relief
 This maintains the status quo pending the adjudication of the dispute.
2. Final interdicts
 These are also applicable in constitutional disputes.
3. Structural interdict
 This directs the violator of a right to rectify the violation under court supervision.
 The court declares an action to be unconstitutional and then places time-frames in
which corrective action should be taken.
 Government is required to submit a report to the court stating what it has done in that
regard. Failure to comply with the court’s instruction will be deemed to be contempt of
court.

Damages
Courts are allowed to grant damages for the violation of fundamental rights.
This not a forward-looking remedy.
Damages are sometimes the only solution even if an interdict has been granted.
The following must be met before constitutional damages are awarded:
 The fundamental right must be vindicated.
 Further infringement must be deterred.
 The various organs of state responsible must be punished.
In some cases, the delictual action for damages is considered to be an adequate vindication
of rights.
Case law provides that:
 Where delictual damages can be given, constitutional damages will not be given.
 Even if delictual damages are not available, it is not guaranteed that constitutional
damages will be awarded.

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Other forms of relief

Contempt of court
Non-compliance with a court order will be deemed to be contempt of court. This applies to
government officials as well.
The parties concerned are summoned to court and are obliged to show why they are not
deemed to be in contempt of court.

Exclusion of evidence
Evidence gained in a manner that violates fundamental rights will not be allowed into court.

Remedies for private infringements of rights

Section 8 states that a court must seek a remedy for the private infringement of a right in
legislation, then the existing common law.
If this is not possible, then the courts must develop the common law to give effect to the
right that is infringed.
The section authorises the courts grant a remedy from ordinary law only if it will give effect
to the right that is infringed. If this is not possible, the court must award a constitutional
remedy.

National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (1) BCLR 39 paras
61-68
This case highlighted the manner in which reading in could be used. It is an extensive case that can
be use for a number of constitutional sections, but for the purposes of constitutional remedies,
reading in is the most viable situation that was provided by the CC.

The CC chose to use reading in this case because it would essentially leave the legislation intact.

The case was concerned with the nature of constitutional remedies that could be given by
the courts.
In the judgment, the CC stated that reading in was the viable remedy for the given situation
– it would expand the meaning of section 25(5) to include same-sex couples that are in a
permanent relationship.
Reading in was stated to be possible where an omission was seen to exist.
It would only be pursued as a constitutional remedy if it vindicated the rights of the
applicants, if it would still give effect to the purpose of the law while curing it of the
constitutional defect and if it would not infringe on the budgetary arrangements of the
government.
In this case, the CC decided that a reading in would be made.

President of RSA v Modderklip Boerdery (Pty) Ltd 2005 SA 3 (CC), paras 1-21; 54-68
This case was concerned with the granting of constitutional damages. The CC stated that although
damages are not the best manner in which to resolve constitutional disputes, in this case, there was
not viable alternative. The CC stated that they were empowered to grant damages and the award for
damages would vary from case to case.

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 The case was concerned with unlawful occupiers of the Modderklip farm. The owner had
appealed to the government for assistance numerous times to either evict the unlawful
tenants or to provide some other alternative form of compensation that would resolve the
matter.
 The government was deemed not to have fulfilled its obligations to evict unlawful
tenants, but also by not defending the property rights of Modderklip.
The CC found that constitutional damages were the only viable solution to the problem,
especially since delictual actions could not be instituted against the tenants.
The CC stated that constitutional damages would differ from case to case and would only
be given if they would vindicate the infringed right and deter further trespassing.
The CC found that return of the land was not feasible. It could not evict the occupiers, since
they had a right to a home.
The CC ordered that the government pay Modderklip the value of the land that was
occupied using a calculation derived in Expropriation Act.
The CC at great length discussed the conduct of both parties prior to deciding the award for
constitutional damages.

Sibiya and Others v DPP: JHB High Court and Others 2005 (8) BCLR 812 (CC) paras 51-64
The case was concerned with certain death penalty cases that had not been replaced with
other orders after the death sentence was abolished in 1995.
The court found that a mandatory interdict was required to get the government to comply
with the demands of removing death sentences from the criminal records of convicted
persons. It was furthermore required to submit progress reports about what it had done in
pursuit of the court’s order.

Constitutional law notes by Rémy Ngamije, 2010.

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Section 15: Access to Information

The right to know

Claims to the right to information are usually based on the idea that people are entitled to
information that is held by the state that can impact their lives.
It is deemed that in an open and democratic society, the decisions of the government
should be freely accessible to the people that are governed – this is deemed necessary for
the prevention of the exercise of arbitrary power.
Accountable government is impossible if there is a monopoly on power.
Democracy is seen as being “government by explanation.” The right to access information
is deemed to enhance this trait.
Public access to information is necessary to create a transparent and accountable
government.
Access to information from the state is deemed necessary, especially after the fall of
apartheid; a time when the state had the power to detain people without cause or
explanation.
The right of access to information (section 23) states that all people have the right to access
all information held by the state and all of its organs at any level insofar as the information
is required for the protection or enforcement of a right.
 Legislation that is enacted by Parliament that is deemed to limit the access to
information can be deemed to be unconstitutional unless it is justifiable in terms of
section 36.
 Section 23 was one of the most heavily litigated rights while the Interim Constitution
was in place.
The Final Constitution required that legislation be enacted to give effect to the right to
access information within a period of three years. In this respect the Promotion of Access to
Information Act (PAIA) was passed to give effect to the right.
It must be noticed that there is a debate whether the right to access information is a free-
standing right: can it exist on its own?
 This is only possible in exceptional circumstances where PAIA or other legislation is
challenged on the basis of section 32.
 Since the enactment of PAIA, the constitutional right has faded into the background.
PAIA now indirectly informs the interpretation of the Act. The right itself is indirectly
applicable.
S 32 can be used to interpret the ACT indirectly.
The principle role of the constitutional right is indirect – it will be relied upon in support of
a particular interpretation of the Act or some other legislation.

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Interpretation of PAIA
Purposive interpretation
The Act is a piece of legislation with a particular constitutional status – it is mandated by the
Constitution to give effect to the right of access to information. It in effect, outlines how
the right can be exercised as well as the limitations of the right.
It has a dual character:
 It is a statute, an expression of the elected representatives of the country.
 It a legislative interpretation and supplementation of a constitutional provision. In
this case, it stands above the will of the legislature.

Purposes of the Act

The objects of the Act are primarily to give effect to the constitutional right to access
information that is:
 Held by the state,
 Held by another person that is required for the protection and exercise of another
right.
The Act was enacted to allow for the existence of a transparent and accountable
government.
Transparency also seeks to bolster public involvement in the government.
It has also been deemed as an important tool in the fight against corruption.
It is also seen as encouraging participatory democracy – a requirement that is seen in
section 9(e) which has the purpose of allowing all people to know their rights as well as the
manner that they can defend them in.

Protection of privacy
There are non-political aspects of the right.
The law should protect against the collection and dissemination of personal information
about people by any public or private entity – this is deemed to be a requirement of a civil
society. In this way, the right to access information overlaps with the right to privacy
The link between access to information and privacy is recognised in section 9(b) of the Act
which justifies the Act’s limitation of the constitutional right as being in the interests of
“the reasonable protection of privacy”.

Access to information in private hands

The right is usually deemed to be exercised against public bodies, but it can also be
exercised against private bodies – it can be applied horizontally.
PAIA grants access to information that is held by private bodies – it starts from an
assumption that any information that has a direct relationship with the exercise and
protection of a right belongs in the public sphere.
 The Act does this by placing a burden on the private body wishing to withhold the
information to prove why the information should not be disclosed.
 It also allows public bodies to exercise these rights – this allows the state to seek
information from private parties as well, allowing it to protect its own interests.
In a society, it is possible for private bodies to exercise public or state-like powers, especially
in cases of high privatisation.
The Act’s definition of private bodies is extensive.

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  The duties that are imposed on the private body are not dependent upon the power
that it is exercising or the effect that the power has on the public as a whole.
The Act makes information held by a private body accessible on a “need to know basis”.
The information that is held by the state is held on a “right to know basis”. All of the
information that is held by such bodies can be given to the public unless there is a good
reason for not doing so.
Information that is held by a private body can only be accessed by showing a sufficient
requirement for doing so.
 In other words, the private sector is entitled to keep information to itself.
The Act requires the requester to show that there is a risk of harm to a right in order to
access information that is held by a private body – it is only granted if such information is
needed to protect or exercise a right.

Interpretating “required for the exercise and protection of a right”

Required can be interpreted in a number of ways:
 The most restrictive interpretation requires that a person shows that the
information that needs to be accessed is necessary or essential for the exercise or
a protection of a right – it must be critical for this purpose.
 The most relaxed interpretation only requires the information to be relevant – this
means that there must be some connection between the requested information and
the right that is in need of protection or exercise.
 The third interpretation is that the information must be “reasonably required”.
o As shown through case law, required is flexible and can be accessed on a
case by case basis.
o The Act or the right are not made to dissolve the differentiation between
public and private bodies – it is formulated to prevent the harm that can be
done to rights through secrecy.
o In the case of private bodies, there must be a connection between the
information as well as the right that is deemed to be in need of protection.
o The test for reasonableness is objective – the requester must make a case
for the information being requested.
o The circumstances that the requester is in also need to be assessed.
o Reasonableness is taken to mean a lesser degree than necessary.
The exercise or protection of any rights:
 These can be rights in the Bill of Rights, private law rights arising from contractual or
delictual obligations held by the state or an individual.
 Unlike the state, the private sector is not under a general obligation to be
transparent.
 The purpose of PAIA is best served by a narrower reading of “rights” – that it refers
to the rights in the Bill of Rights.
 The purpose of s 50 of the Act is to prevent harm to fundamental rights – these are
the rights in the Bill of Rights and not those in general law.

Limitation of the constitutional right

An objective of the Act is limiting the right to access information.
The limitations, according to s 9(b) are formulated to afford reasonable protection of
privacy, commercial confidentiality and effective, efficient and good governance.
There are two types of allegations that can be directed against the limitation: that it is over-
or under-inclusive.
Over-inclusiveness claims are more likely to be encountered – these claims usually state
that the requirements of the Act are too onerous.

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 In addition to the general limitations clause, s 32 is subject to a special limitations clause: it
provides for the special alleviation of financial and administrative burden. This limitation
clause is only applicable in scenarios that have the effect of alleviating the aforementioned
occurrences. Any such measure must be reasonable.

General principles of interpreting PAIA

The Act is aimed at promoting access to information – not the withholding of information.
Information can only be held in exceptional circumstances – these circumstances must be
read narrowly.
The withholding of information can only be allowed under the requirements set forth in the
Act.
 Access should be withheld where it is not reasonable to do so.
Discretion should be exercised in favour of disclosure.
The burden of persuasion rests on the person resisting disclosure.

The Right to Know

The right to access information is linked to other rights.

Socio-economic rights and the interdependency of rights

Without basic resources and services, the dreams that the Constitution sets forth would not
be realised. This is why socio-economic rights are included within the constitutional design.
The court has on numerous occasions highlighted the interconnectedness of political and
socio-economic rights.
The right of access to information is linked to other rights in various ways – under
international law, it is stated that freedom of information is a fundamental human right.
In SA, it is cast as being linked to the freedom of expression.
The right to freedom of expression states that people are free to impart and receive ideas
and hold opinions without the interference of the state or public bodies.
There is also a link between the right to access information and the right to just
administrative action.
The court has shown that in instances such as trials, it is imperative the defendants are
granted access to all evidence and dockets that are held by the police.
It has also been stated that the police force must provide information that is crucial for
national safety.

A positive duty
The government is under an obligation to provide information.
Under s 7 of the Constitution, the government is under an obligation to promote and
protect the rights in the Bill of Rights.
The state must also take progressive steps to realise socio-economic rights.
The state must also take steps to make sure that people are educated about their rights and
how the rights can be realised.
PAIA takes some steps to make sure that information is available to South Africans.
Public bodies have an obligation to assist requesters and all public and private bodies are
required to publish a manual prescribing the processes that requesters must go through in
order to access information.

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 The access to information right is dependent upon the right that is being vindicated – in
other words, information is needed to bring another right into effect.

Beyond litigation – monitoring and dialogue

It is recognised that SA and other countries are not in a position to provide disaggregated
information to monitoring bodies.

The right to information and private bodies

Traditionally, bills operate between the state and individuals – this is not the case in South
Africa. The Bill of Rights applies to states as well as private individuals.
Private bodies are recognised as having the ability to encroach on rights and must also in
some way be prevented from treading on individual rights.
PAIA requires private bodies to yield information that is required for the protection or
exercise of any right.
It has been noticed that private bodies have the means to defend refusals for requests in the
High Court and that the people that would benefit from PAIA are relatively privileged
people. This is not because of the complex nature of the Act, but because of the institutional
obstacles that are placed in the way of poorer people.

Institute for Democracy in South Africa and Others v African National Congress and Others 2005 (5)
SA 39
This case was brought to the CC concerning the right to access information that was held by political
parties. In the case, IDASA argued that the public had a right to know who funded political parties
because such information led to more transparency and allowed the public to know who had a role
in what the politics of the day were. The political parties rejected this, stating that they were private
entities that were entitled to withhold such information.

The CC rejected the appeal.

Riesel J
The case was concerned with the claim that was brought by the appellant that political
parties were under an obligation to provide who their financiers were.
This claim was brought in terms of section 32(1) of the Constitution as well as s 50 of PAIA.
The case was brought by the respondents on the behalf of all South Africans – it was in
part, a class action.
It was contested by the applicants that access to information about the funding that political
parties received was a way in which to increase awareness about democracy.
 The applicant stated that as a matter of public concern, it was important the public
know the name of the donors, the date that the donations were received, as well
as the amount of money that was received.
The respondents disputed this – all the political parties of SA contested this allegation.
The central issue, as the judge pointed out, was whether political parties were public bodies
or private bodies.
The respondents also claimed that section 32 could not be raised by itself – it had to be
raised in conjunction with another right.
PAIA, the judge stated was enacted so as to provide the practical requirements for the
enforcement of the right and the definition of its limits.
The judge also stated that PAIA was enacted to give effect to the right of access to
information.

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 It was stated in the judgment as well, that public bodies were governed by section 11 while
section 50 (1) applied to private bodies. The importance of this differentiation is the fact
that if political bodies were found to be private, the applicant would have the added
responsibility of proving that information of the donations was required for the exercise or
protection of a right.
It was stated that the formation of PAIA recognised two types of public bodies.
 Type A are bodies that are part of the state and
 Type B are bodies that are not of the state but through their activities be subject
to the same strictures and controls that would apply to the state.
 It was stated by the respondents that they do not fall under this category – the
Court agreed with this finding.
The applicants contested that in terms of the Constitution, political parties fall the definition
of Type B. The court disagreed with this argument.
The respondents emphasised the private nature of the political parties as voluntary
associations – though they have public profiles and play important public roles, they are
through their formations, voluntary associations. They are created and regulated by their
own constitutions and not by legislation.
The court stated that an entity can only be either a public or private body – it can never be
both.
The respondents stated that they are thus free to generate income from any lawful means.
The judge stated that it cannot be contested that through receiving private donations:
 The parties were exercising any public power or performing in terms of the
Constitution.
 Performing any public function or working in terms of legislation,
 Or doing any activity that could classify it as them as public bodies.
The judge stated that political parties merely exercise common law powers which are open
to any person in South Africa.
The court then turned to the finding of whether the access to information as needed for the
exercise of a right.
 It was found that the applicants had failed to discharge this obligation.
 They failed to explain how it affected their rights to association, the freedom of
expression and a host of other rights that were deemed to be infringed by the
withholding of donor information.
The court also stated that the right to access information as it was exercised in other
countries could not be used to waylay the formulation and intention of PAIA – the law had
to be applied as it was found in South Africa. Comparative law could not be used in this
regard – it could only assist, not change the law.
The judge stated that the appellants did not show a legal relationship between the
information that they sought with the right that they wanted to protect or defend – they
were deemed to be trying to exercise an abstract right to disclosure, stating that it was
generally desirable in a democracy and that it would be beneficial to the creation of an open
and transparent government.
The judge went on to state that donor information does not impugn any of the rights
contained in ss 19(1) or (2) of the Constitution.
The application was dismissed.

Brummer v Minister of Social Development and Others 2009 (6) SA 323 (CC)
This case was brought before the CC challenging the 30 day limit that was stipulated in PAIA. The
applicant stated that this limit was too short and that it affected the rights of concerned individuals

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to access courts. The CC agreed with this and declared the section to be unconstitutional. The CC
then changed the duration from 30 days to 180.

Ngcobo J
The case was concerned with the applicant’s failure to comply with the 30 day limit that
was imposed on applicants requesting to access information through PAIA.
 The applicant contested that the limit was too short to allow them to comply with all
the requirements of the Act.
The applicant’s case had succeeded in the High Court which held that the provision was too
restrictive, that it limited the access to court and that it was unjustifiable under section
32(1) of the Constitution – this was then sent to the CC for confirmation.
In obiter, the CC stated that amicus curiae are not permitted to submit the same contentions
as either of the applicants or respondents – the amicus must submit new contentions that
relevant to the case before the court.
The CC held that section 78(2) – the time bar restriction – was unconstitutional.
 The CC did however highlight that time bars are necessary to prevent unnecessary
delays but that they may lead to detrimental actions.
 To pass constitutional muster, a time bar must afford the potential litigant
sufficient time to seek redress for a wrong that is alleged to have been committed.
It was presented to the CC that the 30 day limit was not enough to look for counsel, to
secure financing and to analyse the prospect of success.
It was highlighted that even powerful NGOs face these problems – therefore, the hurdle that
would have to be overcome by private citizens would be greater.
The CC stated that the requirements that the 30 day limit places on the individual is too
onerous and not understanding of the situations that litigants can be placed in – it could
restrict access to court.
The CC then stated that the provision must be struck down.
 All that was left was to ascertain whether it should be struck down with immediate
effect or whether it must continue to operate until Parliament cured the legislation
of the defect.
 The CC stated that this would allow an unconstitutional behaviour to persist. The CC
opted to enact an interim measure. It changed the 30 day limit to 180 days – this
would be sent to Parliament for them to discuss and rectify. This is an example of
reading in.
 The CC stated that the decision also applies to pending cases as well as to all future
requests of this nature.
After the striking down of the provision – the CC stated that all that remained was to
determine whether the applicant was entitled to the information that was sought – the
matter was referred to another judge.

Claase v The Information Officer of South African Airways (SCA)

In this case, Mr Claase had worked for SAA and in his retirement package it was stated that he was
entitled to two free business class tickets to anywhere once a year. When trying to return from New

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York using this benefit he was not able to get two business class tickets and had to wait until the
following day to fly home.

He then tried to get information from SAA regarding how many of each kind of seat were available
for that specific day. He was told this information via telephone, but refused any documentation by
the SAA. Mr Claase then brought the case to court.

In the court a quo it was held that Mr Claase did not have a booking on the flight and so was rightly
treated as a standby passenger. His benefits do not automatically reserve you a seat on the plane –
they merely allow you to get a ticket “when it is available”. This is what the SAA argued. It was also
held that the information supplied to him telephonically was enough for his purposes. The SAA also
claimed that he had failed to establish that the SAA had failed to provide him with enough
information that was necessary for the exercise of a right. In this case, the nature of the right was a
contractual one and it is also protected by PAIA.

Prelim notes

 S 50 Protection of Access to Information Act (PAIA)

 In terms of the contract between SAA and Mr Claase, he had the right to 2 business class
tickets every year.
 He did not have to wait until reservations of the public had closed to get these.
 As soon as he made the booking he should have been conferred to business class.
 A requester (the appellant) need only should prima facie facts that he has a right which
requires, for its exercise, access to the info.
 Clutchco case: the info must be “reasonably required” for protection of the right; in that
“substantial advantage or an element of need” is shown.
Application
 Mr Claase has a right to the tickets
 He reasonably requires the information in that the record (a computer printout
which shows how many seats were available in business class on that flight) as it will
provide him with a substantial advantage b/c the record would be decisive. I.e.
would bring an end to the dispute.
 SAA had no reason to refuse this.
 Furthermore, it was incorrect for the court a quo to hold that the spoken
information was enough.
 S 50 of PAIA entitles a requester to records, not what someone says is in the records.
Mr C's request meets the requirements of s50 and must therefore be granted.
 MEC for Roads and Public Works established that where info was been refused
unreasonably a punitive order may be made against it. The court held in this case,
that punitive costs would too be ordered.

Constitutional law notes by Rémy Ngamije, 2010.

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Section 16: Freedom of expression

Why is freedom of expression protected?

The freedom of expression is protected by section 16 of the Constitution.
One should be cautious about giving the s 16 the same importance that the US Constitition
gives the freedom of speech in the First Amendment – in the US, the freedom of speech is
give a higher status.
There are two arguments that are used to defend the protection of the freedom of
expression: the instrumental and the constitutive.
 The instrumental arguments state freedom of speech by expressing what it can do
for us.
o In this case, freedom of speech is important not because people have any
intrinsic right to say what they wish, but because allowing them to do so
will have positive effects for all of us.
 The constitutive argument states that freedom of speech is a valuable part of being
human.
o It is a part of just political society.
o People are morally allowed to make up their own minds.
o Government insults people’s moral rights by not granting the freedom of
speech.
 These two arguments are different but they are not mutually exclusive.
o They are different because the first argument is more fragile and more
limited – the instrumental purposes that are an argument in favour of free
speech are often arguments in favour of limiting it.
o It is limited because while the constitutive justification extends to all aspects
of speech, the moral responsibility demands independence.
o The instrumental one concentrates mostly on the protection of political
speech.
 In S v Mambolo it is stated it can be contended that in South Africa, the public
interest in the open market place of ideas is all the more important because the
democracy is not yet firmly established.
o In line with a Dworkinian interpretation, it follows that the freedom of
speech contributes to the constitutional goals of SA and that it protects
against the authoritarian tendencies of the state.
There is a tendency in SA courts to elevate the importance of the freedom of speech while
devaluing other rights.
The CC has distinguished between the core values of the freedom of expression and
“expression of little value” that is found at the periphery of the right.
 The latter receives little protection because its limitation is easily justifiable.

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Expression
The freedom of expression is protected in a manner that does not warrant a narrowing
down of its reading.
Expression as a result, will include activities that have occasioned definitional disputes in
other jurisdictions such as displaying posters, painting and sculpting, etc. Certain items of
clothing will also be included as well as physical gestures.
In principle, any action that a person can use to express an emotion, opinion or belief will
qualify as an “expression”.
Since the CC states that there can be no narrow reading of the right, it follows that the
infringements of the right are not confined to direct threats but also extend to indirect
threats to expression.
Expression is conduct that seeks to communicate – expressive conduct will receive more
limitation than speech.
The closer expression comes to action, the further it drifts away from conveying ideas and
the more limitation it will have.

Expression afforded specific constitutional recognition

1. Freedom of the press and media

The press is deemed to aid in the establishment and maintenance of an open and
democratic society.
The press is protected by the right to freedom of expression and has duties to promote it on
behalf of society.
The CC states that the ability of each citizen to be a responsible and effective member of
society depends upon the manner in which the media carries out its duties.
The media is both a bearer of rights and responsibilities.
The press is not entitled to any special rights in South Africa.
The freedom of speech does not give any more rights to the press than it does to any other
speaker.
It is unacceptable that a single group of people are given more extensive rights and special
status – this militates against section 9 of the Constitution.

2. Compelled disclosure of journalists’ sources

The media is allowed to protect its sources – this is one of the basic rights of the media.
Sources may be deterred from assisting the press thereby undermining the public watchdog
role of the press and its ability to provide accurate and reliable information.
SA law lacks any specific protections for journalists.
 Principle measure that is used to compel journalists to disclose their sources is s 205
of the Criminal Procedure Act 51 of 1957.
o This section permits the examination by a magistrate of persons who have
information relating to a criminal offence. In line with this clause, all
question put to the witness must be answered unless the witness has a just
excuse.

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  The just excuse is assessed by weighing up the interests of the community against
the potential for public prejudice caused by compelling the witness to divulge
information.
 If newspapers are unable to protect their sources, then issues of public importance
would not be reported.
 When a journalist refuses to answer a question under s 205, the presiding officer
must take into account that giving such evidence would infringe upon the freedom
of the media. It is important though that there be a distinction between the
protection of sources and other evidence.
 When it comes to other forms of evidence such as press photos, videotapes and the
like – the interest of the press is less distinct. It amounts to fears that reporters or
photographers may be harassed or attacked if it becomes known that they co-
operate with the police.

3. Broadcasting
Broadcast regulation is a complex field of law. S 16(1) (a) confers a freedom right to
broadcast.
It is well known that a broadcast may be highly intrusive and have undesirable
consequences.
It has been stated in case law that the rights of broadcaster cannot be levelled down to the
level of the print media.
Broadcast media is regulated.
A good reason for regulation is to ensure that broadcasting is diverse.
 Radio and television are powerful communication media and because of the limited
frequencies and resources needed to drive such media, it is possible for organisation
with such resources to broadcast only one view.
 Section 192 states that there must be national legislation that establishes and
independent authority to regulate broadcasting in the public interest and to
ensure that a broad range of views are expressed.

4. Freedom to receive and impart information and ideas

There is no similar provision in IC.
The clause protects receivers and communicators alike – this was the finding in Case v
Minister of Safety and Security.
If something can be deemed to convey information, its receipt is protected without
reference to the content of the expression.

5. Freedom of artistic creativity

Artistic expression needs to be protected because artists are responsible for radical criticism
of society and government.
There is no distinction made between art as the product and the process of creating the art
– all of them are protected constitutionally.

6. Academic freedom and freedom of scientific research

This right is broader than it was in the IC.
The freedom of research is vested in all institutions of higher education.

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 The right implies a positive duty on the state to promote research and by providing
functional academic and scientific institutions or at least the resources needed to exercise
the right.

7. Free speech in legislatures

Special privileges are exercised by members of the National Assemblies.
They have absolute right to freedom of expression.
They are not liable for criminal or civil proceedings, arrests or imprisonment.
They are also not liable for anything revealed as a result of their activities.

Expression specifically excluded

1. Application of the hate speech qualification

S 16(2) is known as the “hate speech” qualification though none of its components
encompasses hate speech.
The right to freedom of expression does not extend to three listed categories. Restrictions
upon things within this category do not require justification.
In Islamic Unity Convention it was stated that they went beyond the categories stated in s
16(2). It was stated by the CC to be an infringement that could not be justified in the
limitations clause because it was too broad.

2. Propaganda for war

This can be described as the incitement of imminent violence.
It does not explain whether this covers favourable statements made for a war already in
progress.

3. Incitement of imminent violence

This is not protected by the freedom of expression.
Dolus or intention is not required.

4. Hate speech
This right has been extended to prevent the communication of hate speech.
In the negotiation process, it was envisioned that this clause would show that such
behaviour would not be tolerated in the new constitutional order.
The clause excludes, advocacy for hatred based on race, ethnicity, gender or other things
in section 9.
There must be two elements before something can be labelled hate speech:
 The expression must advocate hatred on one or more of the listed grounds.
 And the incitement must be aimed at inciting violence.
Advocacy of hatred must be confined to statements manifesting detestation, enmity, ill-will
and malevolence.
It has been held that the song “Kill the farmer, kill the Boer” was hate speech.
Advocacy of hatred might be offensive but it must be aimed at inciting violence before it
becomes a constitutional offense.
The SCA has stated that emotional damage caused by words may have grave psychological
effects on the parties concerned.

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  A person’s dignity as well as that of the community can be affected.
Hate speech therefore strikes at a person’s dignity. Whether it incites violence must be
ascertained objectively.
S 16 (2) is definitional in scope and does not prohibit hate speech in itself. Supplementary
legislation is required to prohibit hate speech and to provide remedies to counter its harmful
effects.
The Equality Act widens the scope of the constitutional conception of hate speech to
include: publish, propagate, advocate and communicate as ways of spreading hate speech.
The prohibited grounds are not confined to the three grounds listed in s 16(2) but now
encompass all the grounds of non-discrimination in s 9(3) of the Constitution.
The Equality Act is a limitation on the freedom of expression and will have to be justified.
The common law of delict provides a civil remedy for speech causing iniuria.

Controversial areas

a) Commercial expression
Commercial expression is expression proposing a commercial transaction.
All forms of commercial speech are likely to be considered protected expression.
It is hard to differentiate commercial expression from other forms of expression.
Advertises often sponsor and make protected forms of expression possible.
Any curtailment of commercial speech would have a knock-on effect and limit the ways in
which the media could express itself as well.
Market economies cannot function without commercial expression.
Limitation of commercial expression will have to be justified under section 36.

b) Pornography
Prohibition on the possession of pornography is a violation of the right to privacy.
The CC states that s 16 is content-neutral and encompasses pornography.
Censorship of pornography is a limitation of freedom of expression and will survive only if
the limitation is justified.

c) Defamation
Non-media plaintiffs must prove on the balance of probabilities that:
a) A publication by the defendant,
b) Of defamatory material (material that a reasonable person of ordinary intelligence
might reasonably understand to convey a meaning defamatory of the plaintiff).
The defendant is under an onus to show that:
a) The publication was subject to privilege,
b) The defamatory material was true and its publication was in the public interest.
c) The material constituted fair comment.
d) Absence of intention.
Media defendants, with the exception that the presumption of animus iniuriandi could not
be rebutted. Media was strictly liable.
Defamation claims are examples of the horizontal application of the Bill of Rights.
The common law of defamation was revised in National Media Ltd v Bogoshi.

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  In this case, the newspapers stated that their defamatory action was not unlawful
and was constitutionally protected.
 The court also stated that the remedies available to a plaintiff in a defamation action
were not a closed list.
 The court also said that it had to be determined in each case whether public and
legal policy requires the particular publication to be regarded as unlawful.
 The court stated that protection was only extended to publication of material in
which the public has an interest.
 In considering the reasonableness of the publication, account must be taken of the
nature, extent and tone of the allegation. Greater latitude is usually given to
political discussions.
 It is also important that the nature of the sources of information is considered as
well as the steps taken to verify the sources.
 Ultimately, there can be no justification for the publication of untruths and
members of the press cannot be allowed to think that they can lower their
standards of care. This is done because of the powerful position that the media
enjoys.
 Other factors such as whether the person was given the opportunity to respond
must be taken into account.
 The court also stated that there is a legitimate reason for the media under being
strict liability.
 The defences of the distributor and the printer, that they were not negligent are also
deemed to be adequate.
 The court held that the onus would remain with the media to show that publication
was reasonable, that it was not negligent.
In Khumalo v Holomisa, the decisions in Bogoshi were confirmed.
 In this case, it was also stated that the plaintiff should not have to state something
that the defendant could in turn rely on.
 In the case, it was also asked whether the common law of defamation unjustly limits
the right to freedom of expression.
o In this manner, the court stated that the freedom of expression is not
formulated to protect injurious speech.
o The common law of defamation requires the plaintiff to establish the falsity
of the defamatory statement. If it does, then it protects the right to
reputation against injurious falsehoods and does not limit the right to free
expression. It was stated however, that if it was not, then right to reputation
is not a constitutional right and that it would be an unjust limitation.
o The court also stated that the truth is a defence – but it places a burden on
the defendant to show this.
o If a publisher cannot determine the truth of a statement, they can still rely
on reasonable publication as a defence.
Khumalo can be taken to show that the Bill of Rights can be horizontally applied to the
common law.

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The state of the law of defamation
In both media and non-media cases, the decision hinges upon defending the right to dignity
and the right to freedom of expression.
Media and other defendants are no longer under strict liability and can rely on the defence
that the requisite degree of fault has not been satisfied.
The form of fault in media cases is negligence rather than fault.
From a constitutional point of view, political speech weighs more than ordinary speech.
Where the publication is justifiable under the circumstances, the defendant will not be held
liable. Justifiability is weighed by assessing all relevant circumstances.

Prior restraints on publication

These are restraints on expression prior to its publication or dissemination.
This can be a useful way to protect dignity and reputation.
Interdicts may be a better way to protect individuals against defamatory publications than
actions for damages.
Interdicts do have the ability to limit the flow of information.
Courts are encouraged not to err on the side of safety too much.

Other limits on expression

Reading down is usually employed to avoid finding that a law limits a right.
Treason, sedition, defeating and obstructing the cause of justice are other things that impact
on the freedom of expression.

Midi Television (Pty) Ltd v Director of Public Prosecutions (Western Cape) 2007 2 SACR 439 (SCA)

Langa DCJ
The case was brought by the DPP with the claim that the airing of a certain television
program by Midi could affect the outcome of an ongoing case in court.
 An interdict had been granted in the High Court was appealed against by Midi.
Freedom of expression is not absolute.
There are no special rights given to the media.
Courts must reconcile mutually competing constitutional rights.
It is an established rule of common law that anything retarding the proper administration of
justice is an offence.
The exercise of press freedom has the ability to interfere with the administration of justice:
 Through trying cases in the media.
It must be shown by the party seeking restraint to show the cause for the restraint – there
must be relationship between the publication of the information and infringement upon the
administration of justice.
The DPP had argued that Midi had an obligation to submit all relevant material that would
have helped in determining whether the program was prejudicial to the ongoing court case.
The CC held that Midi was under no obligation.
 The DPP then stated that he was entitled to the information under PAIA, but the CC
stated that its requirements had not been met so the claim failed.
The appeal was upheld.

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Islamic Unity Convention v Independent Broadcasting Authority and Another 2003 (11) BCLR 1283
(SAHRC)
Langa DCJ

Issue:
 Is clause 2(a) of the code of conduct consistent with the s 16 right in the
Constitution?
 The applicants wanted to base the attack on the whole clause saying that it was
overly broad and vague. However, the respondents said that each prohibition was
separate so the provision was internally severable. Therefore it was concluded that
the attack on the code of conduct was to be narrowed to the words “likely to
prejudice relations between sections of the population”. The latter would be subject
to a constitutional limitations analysis in terms of S 36.
The right to freedom of expression:
 Freedom of expression is one of a web of mutually supporting rights in the
constitution, and it lies at the heart of our democratic society, especially considering
the context of our past.
 International courts agree about the importance of this right and that it is
foundational to a democratic society.
 There is also the recognition of the potential that expression has to impair the
exercise and enjoyment of other important rights, like the right to dignity and the
pursuit of national unity and reconciliation. Therefore S 16 is not an absolute right.
 From Mombelo case: ”Freedom of expression does not enjoy superior status in our
law”
 S 16(1) and its content are subject to a general limitations analysis
 S 16(2) is definitional and sets the boundaries of what is considered constitutionally
protected speech/expression. S 16(2)(a)= propaganda for war, S 16(2)(b)=
incitement of imminent violence, S 16(2)(c)= hate speech = advocacy of hatred and
incitement of harm.
 Where the state extends the scope of regulation beyond expression in S 16 (2) it
must be justified.
Justification:
 S 192 of the Constitution deals with broadcasting, the broadcasting authority is
directly bound by the Bill of Rights.
 Freedom of expression has a special context with respect to broadcasting with
regards to public interest.
 S 36(1): law of general application, along with a proportionality exercise where the
limitation must be reasonable and justified in an open and democratic society.
 No justification was directly provided by the respondents; instead the code is
currently being revised.
 The IBA board has requested that the clause be properly interpreted as it will them
be justifiable in terms of S 36. According to the court the interpretation put forward
by the board was too complicated an exercise where the language has been
interpreted too widely. The wide prohibition given might also encroach on other
rights in the bill of rights anyway.

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  The respondents did try and provide justification for the clause through national
unity, equality and dignity in a South African context.
 The court (going through the Makwanyane procedure) decided that on the question
of whether there were other measures which were less restrictive, that there were
other less restrictive measures other than the clause. And on this ground the
limitation cannot be justifiable and reasonable.
Outcome:
 Inroads on S 16(1) are far too extensive and outweigh factors considered by the
boards as mitigating their impact
 The Court noted that the regulation of broadcasting was a legitimate objective and
was mandated by the Constitution because of its importance to national unity and
the founding values of dignity, equality and freedom.
 It held nevertheless that the prohibition went too far and was not sufficiently
focused to guide broadcasters in what they may or may not broadcast.
 Since the prohibition was too intrusive and made serious inroads into the right to
freedom of expression, the appeal had to succeed and the prohibition was declared
unconstitutional and invalid.
 The declaration of invalidity was however made subject to the proviso that no
protection is given to the broadcasting of material that amounts to propaganda for
war, the incitement of imminent violence or the advocacy of hatred that is based on
race, ethnicity, gender or religion, and that constitutes incitement to cause harm.
 The CC stated that provision was broadly stated and sp far reaching that it would be
difficult to know beforehand what is permissible and what is not.
 The CC stated that the clause was unconstitutional because there was no justifiable
reason for its limitation of s 16.

Afriforum and Another v Malema 2010 ZAGPPHC

The case was concerned with the singing of “Shoot the farmer, shoot the boer” which was
stated by the applicant as being a form of hate speech.
The respondent alleged that the song was of historic significance in the history of South
Africa and deserved airing.
The Court found that the song did indeed prejudice sections of the population and had the
potential to incite violence against such parties.
The Court upheld the appeal on a provisional basis.

Freedom Front v South African Human Rights Commission and Another 2003 (11) BCLR 1283
(SAHRC)
‘In June 2002, the slogan “Kill the Farmer, kill the Boer” was chanted at a meeting of the ANC
Youth League held in Kimberley and thereafter at the funeral of an ANC leader, Mr Peter
Mokaba, in Polokwane. It was common cause that these slogans were chanted on these
occasions. Footage of Peter Mokaba’s funeral was broadcast over SABC television. In both
instances, the ANC played a central role in the organisation of the event and both were
public functions. The Freedom Front (FF) lodged a complaint with the South African Human
Rights Commission (SAHRC) arguing that the slogan amounted to hate speech and was
therefore proscribed by the Republic of South Africa Constitution.

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The SAHRC rejected this contention and found that although the slogans may be distasteful
and hurtful, “they do not explicitly fall into the category envisaged by section 16(2) of the
Constitution.
The question of law:
 ‘Whether the slogan uttered in the context described above amounted to hate
speech as defined in section 16(2)(c) of the Constitution’ (pg 1289).
The reasoning
 ‘In terms of section 16(2) (c), expression will amount to hate speech if it is advocacy
of hatred that is based on race, ethnicity, gender or religion and that constitutes
incitement to cause harm’.
 The Court adopted a purposive approach in its interpretation of the right.
 ‘It was common cause that the slogans were based on race or ethnicity’.
 ‘The FF contended that calling for the killing of Afrikaners directly evokes enmity and
ill-will towards them”.
o ‘Calling for the killing of people because they belong to a particular
community or race must amount to the advocacy of hatred, unless the
context clearly indicates otherwise’.
 Respondents argued that ‘harm’ should be actual physical harm, whereas the
Freedom Front argued that harm should be any form of harm including fear.
 The Court’s view: ‘We are of the opinion that the meaning of the term “harm” in
section 16(2) (c) cannot be restricted to physical or actual harm.
o This is supported by both a textual and purposive interpretation. Section
16(2) (b) prohibits the incitement of imminent violence.
 The SAHRC argued that section 16(2) (c) was meant to be broader and prohibit all
physical violence and not just the incitement of imminent violence. This contention
cannot be correct as it would render section 16(2) (b) of the Constitution redundant.
If section 16(2) (c) covered the incitement of all violence then it would include the
incitement of imminent violence, thus making section 16(2) (b) unnecessary… The
drafters specifically chose to permit the prohibition of hate speech that is race,
gender, ethnic or religious based. If the aim of the provision is to stop the advocacy
of violence, then there should be no such restriction in respect of the categories of
persons to whom it is directed’. The reason for such a prohibition is to protect the
dignity of South Africans considering South Africa’s discriminatory past, as is
entrenched in the preamble of the Constitution.
 ‘Langa J in Islamic Unity Convention recognised that section 16(2)(c) of the
Constitution plays a similar role in our domestic law in that it seeks to regulate
expression that retards the objective of creating a non-racist and non-sexist society
based on human dignity and equality. It is for these reasons that the conclusion is
reached that psychological or emotional harm will suffice for the purposes of the
section’.
 ‘The danger of interpreting section 16(2)(c) widely is that speech that is vitally
important to the advancement of our constitutional democracy may be classified as
hate speech, because our society is still in respect of significant social issues, divided
on racial lines. Any test suggested for interpreting section 16(2)(c) must recognise

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 that the section is an exception and that the protection of the freedom of expression
is the norm’.
 ‘In the event of a person being prosecuted for hate speech, it is clear that the State
will have to prove, beyond reasonable doubt that he or she wilfully engaged in hate
speech. In contrast, the test as to whether expression amounts to hate speech for
the purposes of section 16(2)(c) is an objective one. It is the advocacy of hatred that
must constitute the incitement to cause harm. The focus must be on whether the
expression itself causes or is likely to cause harm and not on the subjective intention
of the person articulating it’ (pg 1297). ‘There must be an adequate nexus between
the advocacy of hatred based on race, ethnicity, gender or religion and the harm
that is caused as a consequence (Mamabolo).
 ‘The issue, in respect of section 16(2)(c) of the Constitution is whether a reasonable
person assessing the advocacy of hatred on the stipulated grounds within its context
and having regard to its impact and consequences would objectively conclude that
there is a real likelihood that the expression causes harm. The closer the proximity
or causal link between the advocacy of hatred on the stipulated grounds and the
harm, the more likely it is that the expression would be deemed to be hate speech’.
Application of the principles to the facts
 ‘One of the slogans used to mobilise people against apartheid was “Kill the Boer, Kill
the farmer”… It reflected the intensity of the race based conflict that was raging in
South Africa at the time’.
 ‘The slogan says to them that they are still the enemy of the majority of the people
of this country.
 It contributes to the alienation of the target community and conveys a particularly
divisive message to the majority community that the target community is less
deserving of respect and dignity.
 This generalised slogan is directed against an entire community of people. Words
convey meaning and do cause hurt and injury.
 There is a real likelihood that this slogan causes harm’.
The outcome
 ‘The slogan “Kill the farmer, Kill the boer” as chanted at the ANC Youth Rally in
Kimberley and at the funeral of Peter Mokaba at Polokwane is hate speech as
defined in section 16(2)(c) of the Constitution’.

Constitutional law notes by Rémy Ngamije, 2010.

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Section 17: Freedom of religion, belief and opinion

Religion and belief

The relationship between the church and the state dominated world politics for a long time.
The relationship was eventually broken.
There were numerous calls for religious tolerance and for a secular (non-religious) state.
The history of the right turns upon the extent to which the state may recognise or establish a
religion and on the freedom to exercise religious belief.
The denial of a role for religion in the public sphere leads to a privatisation and increasing
marginalisation of religion in society.
Section 15 does not prevent the state from recognising or supporting religion, but it does
require that the state treats all religions equally.
Section 15 and 31 have the effect of ensuring that individuals have the right to the free
exercise of religion.
Section 15 (when read together with s 9) prohibits the state from discriminating against
any particular religion.
Unfair discrimination based on religion is expressly forbidden both horizontally and
vertically.

Free exercise of religion

Scope of the right

Freedom of religion includes the:
 Right to have a belief,
 Right to express the belief publicly,
 Right to manifest the belief by worship and practice.
The right prohibits coercion or constraint that might force people to act or restrain from
acting in a manner that is contrary to their religion.
The right also guarantees the right for a religious community to run their affairs without
interference.
 This is so argued because religious worship often entails interaction with other
believers.
 Ritualistic ceremony often underpins most religions and people must be free to
pursue these.
The state is required to acknowledge the value of religious diversity and plurality.
Religion might lead to conflict with other communities. Section 31 thus provides that
religious groups may not exercise their rights in any manner that impairs other people’s
rights as well.
In Christian education South Africa, the CC highlighted that members of religious
communities could seek to use the freedom of religion to fend of attacks on constitutionally
offensive group practices.

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 Since the rules of most spiritual communities cannot be regarded as general rules of
application, attacks about their unconstitutionality in terms of section 9 depends on
whether they amount to unfair discrimination.
If the state compels religious institutions to appoint clergy and other leaders with strict
regard to section 9, this could interfere with religious practice. It is generally assumed the
right to religion will be balanced against the right to equality.
Religious institutions must be allowed to adhere to their own rules. This means that
discrimination on the grounds of gender and sex will be allowed if they are tenets of the
religion.
Court intervention in religious disciplinary hearings is suspect – since s 33 does not apply to
religious institutions, the courts are required to develop the common law rules to limit the
right to religious autonomy in order allow for procedural fairness.

Limitation of the right

The wide scope of the right increases the chances of it being infringed.
The purpose of certain legislation may also retard the right to religious freedom.
The courts have shown reluctance to limit s 15 in terms of s 36. They prefer to restrict the
scope of the right.
 The effect is that not every practice that claims to be a religion will be regarded as
such.
There are three steps that are taken to restrict the scope of the right:
 The first step is examining the sincerity of the claimant’s belief. Once it has been
found that the belief does form part of the doctrine in question, the court will not
embark upon an evaluation of the acceptability, logic, consistency or
comprehensibility of the belief.
o In Christian Education the High Court held that the applicants had failed to
show that they had a sincere belief on religious grounds that teachers
should be allowed to administer corporal punishment.
 The second step is to require the claimant to show a substantial burden on the
exercise of the freedom of religion, or that the prohibited practice is a central
tenet of the religion.
 The third method of avoiding limitation is a form of contextual interpretation: the
courts will not protect practices under s 15 that are specifically excluded
elsewhere in the Constitution.
o In this manner, the advocacy of hatred (along with other similar banned
practices) cannot be defended, even if it is motivated by religion.
S 31 (2) specifically provides that the exercise of the freedom may not be inconsistent with
the other provisions of the Bill of Rights.
In Christian Education, the CC preferred to balance the right to religion under s 36. It held
that ban on corporal punishment would be undermined if an exemption was created for the
applicants.
It is important to ask whether there should be different degrees of protection for different
religions depending on their content. If this is the case, then religions that promote key
constitutional goals must be afforded more protection. This though would be unfair to other

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 religions. The popular stance is that religions that cause harm are those that must be
limited.
There is no automatic exemption from the laws of the land based solely on belief – it is
important that society adheres to the same set of rules.
It hard to imagine how the right to religion can ever be legitimately limited.
A distinction must be made between the holding of a belief and the public expression of a
belief – there may be legitimate reasons for denying the latter.
S 31 (2) shows that religions are susceptible to limitation – the state must prohibit
practices that engender harm.
 In Prince the CC held that the general statutory prohibition on dagga was a violation
of the Rastafarian religion but that it was important to limit it because it would be
difficult to control who used the drug for religious purposes and who did not.
In S v Lawrence, the CC stated that state endorsement of a particular religion would
contravene the freedom of religion – it would coerce people into entering the religion and
prejudice all others.
 In Lawrence, it was stated by O’Regan J that the state must act fairly towards all
religions. She went on to say that the state is allowed to support religious
observances but not to endorse particular ones.
 It was also stated in Lawrence that the prestige of the state behind a particular
religion would be coercive.

Religious observances in state institutions

S 15 (2) makes it clear that religious observances at state institutions will not be
unconstitutional if they are:
 Established under rules made by an appropriate authority.
 Equitable and,
 Attendance to them is free and voluntary.
The observance must be religious. This would exclude the observances of most African
traditionalists.
The CC has also distinguished religious education from religious observance.
 Religious education can be confessional in nature or of an informative general
nature.
The court’s definition of state-aided institutions is narrower.
 This refers to specific groups of colleges, schools, homes, etc in respect of which the
state grants aid and loans.
 State-aided institutions are all educational but they are not all schools.
 They are neither public in the sense of state-funded and state-controlled, nor private
– they lie somewhere in between.
Section 15 (2) does not apply to religious education whether it is taught through a multiple
single-faith confessional sort of curriculum or by a way of multi-faith informative type of
curriculum.
When it comes to religious education, government schools must treat religions equitably
and make provision for non-believers.

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 Parents may compel children to attend single-faith confessional religious education and the
school may compel learners to attend multi-faith based courses in religion and to take
examination in such courses.
For religiously-inclined persons, there is only one alternative left for them: to establish and
maintain, at their own expense, an independent educational institution.
 The right to do so in terms of s 29 (3) is qualified in that the schools may not
discriminate on the basis of race or gender, must register with the state and must
maintain certain standards.
 This means that private schools can legitimately exclude pupils of a certain religion
and are not required to treat all religions equally. The right to freedom of religion
and equality does not apply to private schools in this case. Such schools may compel
students to attend religious observances.

Religious marriages
S 15 (3) allows for the legislative recognition of customary and religious marriages and
empowers the state to give effect to such marriages in terms of a system of traditional or
religious law.
Any such recognition must however be consistent with s 15 and the rest of the
Constitution.
The drafting of legislation is a difficult process in this regard because religious-based
marriage, personal and family law often discriminates against women and most of the other
grounds in section 9.

Culture, language and education

S 31 allows people of a certain cultural community the right to participate in their cultural
beliefs.
Cultural or linguistic communities cannot meaningfully be exercised alone. The acts of
enjoyment of culture, speaking a language and all of the other things that come with culture
can only be experienced in a community.
The right of an individual right to culture and language assumes the existence of a
community in which such language and culture are widely used.
An individual’s right to culture will be impugned is some harm befalls the community to
which the individual belongs.
S 31 protects both individuals and communities.
 This section also has a purely individualistic aspect – it protects individual affiliation.
In order for the survival of the group, the community may choose to set qualifications for
membership within the group.

Community
Defining community is rather difficult. This can be a simple aggregation of people with a
particular relationship. The quality of the relationship is crucial.
Positive associations are attached to the words “culture” and “community” while “ethnic”
and “minority” are tainted by apartheid ideology.
The purpose of s 31 is to protect the values of cultural pluralism and tolerance.

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 To be a minority group, the group must be in a non-dominant position.
Minority groups require rights to protect them.
For the operation of s 31, it is important that the community is self-conscious – it must see
itself as distinct and separate from other groups.

Belonging
The right to belonging is not a right of everyone.
The word belong shows that one is bound by some or other tie to something. It is required
by s 31 for claimants to show that there is something that ties them to their group. The type
of tie is still unclear.
Culture, language and religion are matters of shared experience than of genetics. To prove
membership of a cultural, linguistic or religious community, some concrete tie of affinity
must be proved to exist between the individual and the community.

Content of the right

S 31 is a negative liberty.
Members of communities may freely engage in the practice of culture, language and religion
without interference by the state or from any other source.
The purpose of section 31 requires more than that minority activities are permissible.
The inclusion of s 31 indicates a commitment to the maintenance of cultural pluralism even
where this requires positive measures to be taken by the state to ensure the survival and
development of the minority cultures.
A state committed to cultural pluralism cannot sit idle while a culture wilts away.
Culture is understood as a way of life and as something that can be produced (like art or
music).
The first understanding of culture is wide enough to include the second.
S 31 requires the state to refrain from threatening the existence of institutions in order not
to prejudice an individual’s right of participation in those institutions.
S 31 must be read in conjunction with s 15. S 31 protects the practice of religion rather than
religious belief. The right allows the establishment and maintenance of religious institutions.
Specific protection of an individual right to speak a language is unnecessary.
Legislation prohibiting the use of a particular language would be a violation of s 31.
Linguistic equality cannot be achieved by the mere prohibition of measures placing the
speakers on unequal footing – the state must actively try to encourage linguistic diversity.
The protection of community rights is not a right that allows communities to violate the
provisions of the Constitution or the Bill of Rights.
 It has been held that s 31 (2) cannot be used to defend unconstitutional behaviour.

Education rights
These are positive actions since they can only be assured by collective action.
The state is obliged to provide basic education in an official language of choice where
reasonably practicable.
It is also obliged to provide access to further education in an official language where this is
reasonable practicable.

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 Public education for linguistic minorities can be troublesome. Despite this, it has been stated
that there is no unqualified right to mother-tongue education in state schools.
The Constitution however does recognise the right to publicly-funded mother-tongue
education in an official language – the right poses potentially onerous obligations.
The larger the numbers of speakers of a particular language in an area, the larger the
obligation to provide education in their linguistic medium.
The establishment of educational institutions that discriminate on gender is prohibited.
The right to maintain private educational institutions based on culture, language or religion
must include the right to exclude non-adherents or non-participants from those institutions.
 The fundamental freedom of religion of outsiders is limited to the freedom of non-
joinder.
 Outsiders cannot join on their own terms and once they have joined cannot impose
their own terms.

S v Lawrence 1997 (10) BCLR 1348 (CC)

The appellant was convicted for contravening certain sections of the Liquor Act. Chief among
them was the prohibition of selling alcohol on Sundays. The appellant applied to the CC
claiming that the relevant prohibition of the Liquor Act was a violation of the right to
freedom of religion and was thus unconstitutional.
The CC stated that the Act did not force people to act in a manner that was contrary to their
religious beliefs.
It also stated that Sundays had become secularised and that there was no Christian stigma
attached to them. They have become the common pause day around the world.
The CC also stated that the legislation does not require vendors to observe any of the
religious tenets of the Christian Sabbath.
It was also stated that unequal treatment on the basis of religion would give rise to
unconstitutionality under section 8.
The CC went on to say that the Sunday prohibition of liquor sales was not coercive in that
it did not force people to observe the Sabbath.
The application was dismissed.
O’Regan J in her dissenting judgment states that the Liquor Act was a violation of s 14. She
felt that the observance of Sunday as the rest day was based solely on Christian values and
that the prohibition of alcohol sale on such days was in fact contrary to the requirements of
section 14.
 She felt that the legislation was not secular and that it endorsed Christianity.

Prince v President of the Law Society of the Cape of Good Hope & Others 2002 (3) BCLR 231 (CC)
The appellant, a candidate attorney that was seeking admission to the Cape bar was not
allowed to join because of two previous convictions on his record of cannabis possession. He
also stated that he intended to use cannabis later since it was a tenet of his religion. He
attacked the prohibition on the use of cannabis on the grounds that it was overly broad.
The CC stated that case was concerned with the constitutionality of prohibiting the use or
possession of cannabis when its use or possession was inspired by a religion.
The appellant challenged the Drug Trafficking Act 140 of 1992 amongst others.

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 The CC, after conducting thorough investigations, found that cannabis was indeed a part of
the Rastafarian religion. The CC then stated that it was being called upon to balance the
right of the individual to his religion and the government’s goals to control the trafficking
and use of prohibited substances.
It was stated in the judgment that although Prince was protected by section 14, the right
could be limited because the measures that were in place to police the use of cannabis were
the best possible way in the war against drug abuse.
The CC declared the provision in the Drugs Act unconstitutional and requested that
Parliament be given the chance to address the defects in the legislation.
The appeal was upheld even though the restriction was not removed.

Christian Education SA v Minister of Education (CC)

Does the prohibition of corporal punishment in schools infringe on the rights of parents,
with children in private schools, who consented to its use in line with their religious
convictions? The application to the High Court was dismissed. This is the appeal.
Section 10 of the South African Schools Act (the Act) says that (1) no one may administer
corporal punishment on a learner, and that (2) anyone who does this will be guilty of an
offence and could be sentence imposed for assault.
S 3 (4)(n) of the National Education Policy Act says no person may administer corporal
punishment, or subject the student to psychological physical abuse at any education
institution.
S 15: right to freedom of religion, belief and opinion.

Sachs J
CUSA says that corporal punishment is an integral part of the Christian ethos which they
want to provide, and therefore the blanket prohibition infringes on the rights of the parents
and the community to freely practice their religion. Appellants sought to have s 10 of the Act
declared unconstitutional on these grounds.
CUSA listed passages from the Bible which they felt compelled the use of corporal
punishment. They aver that the parents carry out their biblical responsibility by passing on
the duty to their children's teachers.
Respondents arguments:
 That corporal punishment had previously been allowed but in our new Con order
state policy is different and it is no longer permissible.
 That the state has a duty to ensure that education in all schools is conducted in
accordance with the spirit, content and values of the Con.
 That the trend in democratic countries has been to ban corporal punishment.
CUSA arguments:
 That the prohibition is an infringement of their s 15 and s 31 rights.
 That because the parents gave their consent it was not inconsistent with the Bill of
Rights, and therefore s 31 (2) does not apply.
Sachs begins by assuming that no other right in the Bill of Rights is infringed by the practice
of corporal punishment. He also assumes that s 10 of the Act infringes both s 31 and s 15
and discusses whether or not this infringement is justifiable under s 36 of the Con.
Nature of the right:

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  While the nature of the rights is that they are of grave importance to religious
people who govern their life by their religion, their beliefs cannot exempt them
from the laws of the land. At the same time the legislature must try to avoid forcing
religious people to make difficult decisions between obeying the law and acting on
their religious beliefs.
Nature of the limitation:
 The nature of the limitation to prevent schools from administering corporal
punishment, not to prevent religious practice at school.
Purpose, importance and effect of the limitation, and the availability of less restrictive
means:
 Creation of norms and standards for all schools.
 To fulfil the state duty to diminish public and private violence and protect all people
and particularly children from maltreatment (SA ratified the UN Convention on the
Rights of the Child).
 Widely accepted that the best interests of the child are paramount.
 The respondents asserted that it would be against the principle of equality to allow
an exception to the rule, however, this misunderstands equality. It would not be
unfair to show respect to people of a certain religious view if it were not to the
detriment of anyone else.
 On the other hand, that state has an interest in protecting pupils from degradation
and there has been a trend in int’l away from corporal punishment. The respondent
said that corporal punishment infringed on the dignity of the pupils, but the
applicants said it was not the punishment that caused this infringement but rather it
was the inability to obey the scriptures by leaving misdeeds unpunished.
 It has not yet been decided in SA courts whether corporal punishment is an
infringement of dignity, but the trend in Southern Africa has been that it is, although
it is clear that it is a controversial issue.
 27(2) of the Constitution oblige the state to respect, protect, promote and fulfill the
rights in the BoR. The state is required to reduce the amount of violence in society,
and it has a special duty to protect children.
 The Act doesn’t aim to reach conduct of parents in the home. It aims to instruct the
conduct of teachers in schools.
 The ban on corporal punishment was part of the policy to reduce the amount of
state-sanctioned force as a use of punishment.
 Because these private schools operate in the public domain, they are obliged to
accept national standards, including examination standards and discipline.
Conclusion
 The appeal is dismissed.

Constitutional law notes by Rémy Ngamije, 2010.

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Section 18: Ubuntu and human dignity
Human dignity is a central value of the objective, normative value system established by the
Constitution.
It is perhaps a pre-eminent value.
SA is founded on the values of human dignity.
SA Constitution is different from the US one. The US places a greater weight on liberty, SA
one on dignity.
Dignity informs the concrete rights and plays a role in the balancing process necessary to
bring different rights and values into harmony.
It must also find its place in the constitutional order.
Dignity is considered most important in the context of socio-economic rights.
The concept of human dignity is not properly understood. The CC has not provided a
concrete definition.
Dignity as a right is based on Kantian philosophy which states that each human being has an
intrinsic worth merely by their humanity.
Human dignity, according to this train of thought is the source of a person’s innate rights to
freedom and to physical integrity.
Right to dignity and the right to life have been described as the most important human
rights.
The CC has also stated that the right to dignity is in need of constitutional protection.
Dignity is also a foundation of a number of political rights.
Dignity entails that people are allowed to make individual choices.
Dignity is a justiciable right, but also an informative value that shapes the interpretation of
other rights and values – it has a residual function.
The right to dignity has been used to deter the use of punishment that is deemed to impair
the enjoyment of the right. It is at the heart of the right not to be tortured or to be treated
cruelly.
The right to dignity also means that prisoners will not lose their rights on entering prison.
 They retain all of their original rights except those that are exempted by the prison
regime, provided that they are constitutionally justifiable.
The right to dignity has been stated as covering the institution of marriage and family life.
It has been declared by the CC that the right to dignity allows individuals to freely marry and
raise a family. Any legislation that impairs this relationship will be unconstitutional.

From form to substance

Human dignity cannot be valued or respected unless individuals are able to develop their
humanity.
Part of being human is being given the right to pursue their uniqueness.
Human dignity has little value without freedom.
Freedom and dignity are invariably linked.
To deny freedom is to deny human dignity.

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Dawood v Minister of Home Affairs 2000 (3) SA 936 (CC)
The cases concerned instances in which foreign spouses of South African residents are
permitted to reside temporarily in South Africa pending the outcome of their applications.
 All the spouses are married.
 One spouse is permanently and lawfully resident in RSA while the other is seeking to
obtain an immigration permit to reside permanently n RSA.
 In terms of the Aliens Control Act, a person who is not an SA citizen may not enter or
reside in RSA without a valid permit.
 The applicants sought an order declaring that requiring the applying spouse to pay a
fee of R10 020, was unconstitutional and invalid.
 The Minister of Home Affairs appeared as the respondent and contested the whole
order.
The purpose of the statute is to regulate and control the entry of foreigners into and their
residence in RSA. The control and regulation is hard to maintain.
O’ Regan J admits in her majority judgment that there is no right in the Constitution to
family life or the right to spouses to cohabit.
She states that in terms of international law, states are required to protect the rights of the
persons freely to marry and raise a family.
In this case, it cannot be stated that there is a more specific right that protects individuals
who wish to enter into and sustain permanent intimate relationships that the right to dignity
in section 10.
It is not only legislation that prohibits the right to form a marriage relationship that will
constitute an infringement of the right to dignity, but any legislation that significantly
impairs the ability of spouses to honour their obligations to one another would also limit
that right.
The right to dignity of spouses is limited by the statutory provisions that empower
immigration officers to refuse to grant or extend a temporary permit.
Section 25(9) (b) was declared to be inconsistent with the Constitution because of the
absence of legislative guidance identifying the circumstances in which a refusal to grant or
extend a temporary permit would be justifiable.
The applicants were allowed to cohabit.

Dikoko v Mokhathla 2007 (1) BCLR 1 (CC)

This case was concerned with the ambit of immunity from civil liability given to municipal
councillors in respect of what they say when carrying out their functions as municipal
councillors. The immunity from civil liability which protects councillors from defamation
actions enables them to speak and express themselves freely and openly – this is important
for democracy. The ambit of the immunity is not without limit.
The applicant was Dikkoko and the respondent was Mokhathla. The former instituted an
appeal in the CC to strike down an order that was made by the High Court to award damages
in the sum of R110 000 to Mokhathla.

Mokgoro J (writing for the minority)

The law of defamation is based on the actio injuriarum. This was a remedy that was afforded
to people whose personality rights had been impaired by another. The action is designed to

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 afford personal satisfaction for an impairment of a personality right and became a general
remedy for any vexatious violation of a person’s right to his dignity or reputation.
In SA’s constitutional democracy, the basic value of human dignity relates closely to ubuntu
or botho, an idea based on deep respect for the humanity of another.
 Traditional law and culture have long considered one of the principal objectives of
law to be the restoration of harmonious human and social relationships where they
have been ruptured by an infraction of community norms.
 It should be a goal for SA’s law to emphasise, in cases of compensation for
defamation, the re-establishment of harmony in the relationship between the
parties, rather than to enlarge the hole in the defendant’s pockets – something
which is likely to increase acrimony, push the parties apart and even cause the
defendant financial ruin.
 The primary cause of the compensatory measure after all is to restore dignity of a
plaintiff who has suffered the damage and not to punish the defendant.
 A remedy based on the idea of ubuntu or botho could go much further in restoring
human dignity than an imposed monetary award in which the size of the victory is
measures by how much money is awarded.
 The reparation that is sought is essentially for injury done to one’s honour, dignity
and reputation – not to one’s pocket.
 Because an apology serves to recognise the human dignity of the plaintiff, thus
acknowledging in the truest sense of ubuntu, his or her inner humanity, the
resultant harmony would serve the good of both the plaintiff and the defendant.
 SA’s law in this area should be developed in the light of the values of ubuntu
emphasising restorative justice rather than retribution.
 The goal should be to knit together communities and encourage across the board
respect for the basic norms of social and human inter-dependence.
 It is an area where the courts should be pro-active encouraging apology and mutual
understanding wherever possible.
This case, Mokgoro J believed, is one that could have been solved by the granting of an
apology. It was however, not a majority judgment.

Sachs J (writing for minority)

Sachs believes that the granting of monetary compensation for defamation charges, in the
defence of the right to dignity, retards the function of the right – it reduces dignity to a
market-place commodity.
The principle goal should be to repair the punishment.
 To achieve this objective requires making greater allowance in defamation
proceedings for acknowledging the constitutional value of ubuntu.
 Ubuntu is more than just a phrase – it is intrinsic to and constitutive of
constitutional culture.
 It is founded on the spirit of reconciliation and bridge-building that enabled our
deeply traumatised society to overcome and transcend the divisions of the past.
 It has an enduring and creative character, representing the element of human
solidarity that binds together liberty and equality to create an affirmative and
mutually supportive triad of central constitutional values.

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 It feeds pervasively into and enriches the fundamental rights in the Constitution.
 Ubuntu is highly consonant with rapidly evolving international notions of restorative
justice.
 The key elements of restorative justice are: encounter, reparation, reintegration and
participation.
o Encounter (dialogue) enables the victims and offenders to talk about hurt
caused and how the parties are to get on in the future.
o Reparation focuses on repairing the harm that has been done rather than
on doling out punishment.
o Reintegration into the community depends upon the achievement of
mutual respect for and mutual commitment to one another.
o Participation presupposes a less formal encounter between parties that
allows people close to them to participate.
 These concepts harmonise well-known traditional forms of dispute resolution in SA.
 Ubuntu has been shown to have been practised in instances other than criminal law
such as eviction law.
 The principle of ubuntu was seen to be existent in amende honorable, a remedy
from the Roman law – they both had the same philosophical underpinnings.
 Sachs strongly believed that this is the remedy that should have been used.
o In terms of defamation, the remedy embodies the goals of ubuntu.
o Trial courts should feel encouraged pro-actively to explore mechanisms for
shifting the emphasis from near-exclusive attention to quatum, towards
searching for processes which enhance the possibilities of resolving the
dispute between parties, and achieving a measure of dignified
reconciliation.

Constitutional law notes by Rémy Ngamije, 2010.

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Section 19: Equality, non-discrimination and
affirmative action

The idea of equality

The formal idea of equality is that people who are in similar situations should be treated
the same way. This poses a problem because it is hard to determine because it is not certain
what is relevant in the assessing of people’s situations – what criteria must be used to see
whether people are similarly situated?
The Constitution commits the state to the goal of achieving equality. The Constitution seeks
to create a society that is based on equality, dignity and freedom.
Equality, as stated in Section 9, includes the full and equal enjoyment of rights and
freedoms.

The historical and social context of the right to equality

The constitutional guarantee of equality must be interpreted contextually.
The apartheid political and legal system was squarely based on inequality and
discrimination. It dealt with the problem of scarce resources by promoting the rights of the
white minority and alienating the rights of the rest of SA society.
The manifestations of inequality inherited from the past shows that a formal understanding
of equality cannot be accepted - the inequalities of the past are prevalent despite the
granting of a general right to equality. More is needed to bring equality to fruition.

Formal and substantive equality

A distinction must be drawn between formal and substantive equality.
Formal equality means sameness of treatment: the law must treat individuals in like
circumstances alike.
 This form of equality simply requires that people be the bearer of rights.
 Inequality in this regard is seen as an aberration that must be removed at any cost.
 It requires that equality is applied neutrally.
 Formal equality does not take into account the disparities in social and economic
backgrounds of the parties.
Substantive inequality requires the law to ensure equality of outcome and is prepared to
tolerate disparity of treatment to achieve this goal.
 Substantive equality requires an examination of the actual social and economic
conditions of groups and individuals in order to determine whether the goals of
the Constitution are being upheld.
 Substantive inequality is supportive of the constitutional goals.
 To defend substantive equality, the CC has highlighted that a classification that is
unfair in one context may not be in another.
 An additional endorsement of substantive equality is granted by S 9 (2) which allows
the legislature to implement legislation to empower people in previously
disadvantaged groups.

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  Substantive equality has been closely linked to transformation. The Constitution
does not use this term but according to the CC, it is implicit in its commitment to the
formation in a number of places.

Interpreting section 9
Section 9 compared to section 8 in the IC
The majority of the CC’s jurisprudence deals with section 8 (IC) – it is sufficiently similar in
wording and function to section 9 for them to be used as jurisprudence for the two of them.
Both sections grant the right to equal treatment.
The both endorse affirmative action.
There are 2 differences between the sections:
 The listed grounds of unfair discrimination in 9 (3) are more extensive than those
in s 8(2). The new grounds are pregnancy, marital status and birth.
 S 9(4) is horizontally applicable. In the IC, the right to non-discrimination was only
applicable to the state.

The stages of enquiry

Section 9 contains five subsections:
1. The first provides the principle of equality and confers the right to equality on all
people.
2. The second deals with affirmative action.
3. The third has the prohibitions on unfair discrimination.
4. The fourth extends the right to non-discrimination horizontally.
5. The last section presumes state or private discrimination on the listed grounds to
be unfair.
The CC has a process that it uses to gauge whether the right to equality has been infringed.
1. First it asks whether the challenged law or conduct differentiates between people
or a category of people. If so, does this differentiation serve a legitimate purpose?
o If this is answered in the negative, then s 9(1) will have been infringed. The
next stage of the process is looking at s 9(2).
2. The CC then looks at whether the differentiation amounts to unfair discrimination.
This is done in two steps:
o The CC first looks to see if the discrimination is on a listed ground. If it is,
then the discrimination is deemed to have been established. If it is not on a
specified ground, then it will have to be ascertained whether the
discrimination is in some way similar to the listed grounds or violates the
right to equality in a fundamental way.
o If the discrimination amounts to discrimination, then the CC asks whether
it amounts to unfair discrimination. If it have been found to been on a
specified ground, then unfairness will be presumed. If it is on an
unspecified ground, unfairness will have to be established by the
complainant. The test for unfairness focuses primarily on the impact of the
discrimination on the complainant and others in a similar situation.

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  If at the end of this enquiry, the discrimination is found not to be
unfair discrimination, then there will be no violation in terms of
section 9(3) or 9(4).
3. If the discrimination is found to be unfair, then a finding will have to be made to
see whether the provision can be justified under the limitations clause.
The test shows that there is a preliminary enquiry as to whether the impugned provision or
conduct differentiates between people or categories of people. This is a threshold
question:
 If there is no discrimination then there can be no violation of any part of section 9.
In principle, both unfair discrimination and differentiation without a rational basis can then
be justified as limitations of the right to equality under section 36.
The structure of the test is systematic: One has to consider whether there has been a
violation of the right to equality and then considers whether this is unfair discrimination. If
s 9(1) has been violated, there will be no need to consider whether there has been a
violation of the non-discrimination right (section 9 (2)).
The CC has stated that the right to equality should not be put into watertight compartments:
it is freely adjustable – it is a composite right. This means that there are instances where
the CC can find something to be discrimination in terms of section 9(3) without having to
look at 9(1).
Section 9 indentifies three ways in which a law or conduct might differentiate between
people or a group of people.
 Differentiation: while it does treat people differently, it does not amount to
discrimination. Mere differentiation will fall foul of 9(1) unless it has a rational
connection to a legitimate government purpose.
 Differentiation which amounts to unfair discrimination (prohibited by 9(3 and 4)).
This means that even when there is a legitimate purpose, it will still amount to unfair
discrimination.
Fair discrimination: this is law or conduct that discriminates but that does not do so
unfairly.

Relationship between section 9 and section 36

The Constitution has a general limitations clause.
It will have to be determined whether a right has been infringed. The second stage
commences when it has been shown that a right has been infringed. It is then argued
whether the infringement is justified.
In the case of the right to equality, it is difficult to apply the usual two-stage approach of
rights limitation. This is because section 9 and 36 have similar wording. Something that
harms section 9 cannot be justifiable in a free democratic society that is based on
“equality”, democracy and freedom.
The CC has stated that the limitation analysis involves a “weighing of the purpose and effect
of the provision in question and a determination as to the proportionality thereof in relation
to the extent of its infringement.”

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Mere differentiation
Differentiation and discrimination distinguished
The equality right does not prevent the government from making classifications that
effectively treat people differently.
The principle of equality does not require people to be treated the same but simply that
people in the same situation should be treated similarly.
The government can make laws that treat people differently if this is done for legitimate
reasons.
It is impossible for the population of a country to be regulated without certain classifications
being in place. It is therefore evident that not all differentiation amounts to discrimination
or unequal treatment.
Differentiation is permissible if it does not amount to unfair discrimination.
Mere differentiation that is not discriminatory need not be fair. Its validity is tested by a less
exacting standard: rationality.
Rationality:
 Section 9(1) states that laws which treat people differently will be valid as long as
they do not deny equal protection before the law or do not amount to unequal
treatment under the law.
 If there is no legitimate purpose for the law or conduct, then there is no rationality
for the differentiation.
 The utility of section 9 (1) has been diminished by the CC’s development of a general
rationality requirement stemming from the rule of law in section 1 of the
Constitution. The Court has held that all exercises of public power, whether they
take the form of law or conduct must be rational. It follows from the CC’s
jurisprudence that decisions must be rationally related to the purpose for which the
power was given, otherwise they are in effect arbitrary and inconsistent with this
requirement.
 The rationality requirement in 9 (1) is specific in the sense that it is concerned to
prevent arbitrary differentiation, rather than arbitrariness in general.
 Unless s 9 (1), the general requirement of rationality imposed by the rule of law is
not necessarily triggered by differentiation.
 There is no need for an applicant to show that a law or conduct effects a
differentiation between groups of people in order to have the rationality of the law
or conduct tested.
 Since s 9(1) rationality is a narrower subset of the wider rule of law rationality,
once a law or conduct has been found rational or irrational for the purposes of the
latter category (section 1), then there is no need to prove it in terms of section 9
(1).

Discrimination
Discrimination is a particular kind of differentiation.
Unlike mere differentiation, it is based on illegitimate grounds.
The listed grounds of illegitimate discrimination are listed in section 9 (3).

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The CC has held that differentiation of grounds that are analogous to those listed in s 9 (3)
will constitute discrimination.
 An analogous ground is one that is based on attributes or characteristics which
have the potential to impair the fundamental dignity of persons as human beings,
or to affect them seriously in a comparably serious manner.
 A law that differentiates between black and white people and places a burden on
one group and not the other is differentiation on the illegitimate ground of race and
therefore discrimination.
 It must be noted that the equality clause does not prohibit discrimination – only
unfair discrimination.
 This means that not all discrimination is unfair.
 Fairness is a moral concept that distinguishes legitimate from illegitimate
discrimination.
 The determining factor that differentiates discrimination from unfair discrimination
is the impact on the victims.
o Unfair discrimination means treating people differently in a way which
impairs their fundamental dignity as human beings who are all equal in
dignity.
o The value of dignity is thus of central importance to understanding unfair
discrimination.
o Unfair discrimination is different treatment that is hurting or demeaning.
o It occurs when law or conduct, for no good reason, decides to treat some
people as inferior or incapable of enjoying the same dignity as everyone
else.
o The CC has held that the following factors must be taken into consideration
when looking for unfair discriminations:
 The position of the complainants in society and whether they have
been victims of past discriminatory practices. Differential treatment
that burdens people in a disadvantaged position is more likely to be
unfair than burdens placed on those who are relatively well-off.
 The nature of the discriminating law or conduct and the purpose
sought to be achieved by it.
 The extent to which the rights of the complainant have been
impaired and whether there has been an impairment of his or her
fundamental dignity.
 These factors assist in giving precision and elaboration to the
constitutional test of unfairness. They are not a closed list and the
CC has left it open for more factors to be added.
o Differentiation on or more of the listed grounds is presumed to be unfair
discrimination – it is up to the respondent to prove otherwise.
 To presume discrimination on a listed ground to be unfair
discrimination does not mean that the discrimination is actually
unfair. It is open to the respondent to prove that the discrimination
is not unfair.

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 o Differentiation on an analogous ground is not presumed to be unfair – it is
up to the applicant to show that it is unfair discrimination.

Unfair discrimination
Unfair discrimination is discrimination with an unfair impact.
Where the discriminating law or action is designed to achieve a worthy and important
societal goal, it may make fair what would otherwise be unfair discrimination.
This is illustrated in Pretoria City Council v Walker.
 The majority of the CC considered the actions of the Council to be indirect
discrimination on the listed ground of race.
o However, the majority went on to hold that the first set of action Walker
complained about (the flat rate and cross-subsidisation) was not unfair
discrimination while the second set (selective debt recovery) was unfair
discrimination.
 Unfair discrimination is differentiation that has an unfair impact on its victims. In
this regard, the CC first took into consideration that Walker was white, and that he
therefore belonged to a racial group that was historically advantaged and that he
was not disadvantaged presently.
o The CC also went on to consider the purpose of the Council’s conduct and
stated the choice to restrict the flat rate to Atteridgeville and Mamelodi was
dictated by circumstances.
 As for cross-subsidisation, the CC disagreed with the holding of the court a quo that
the levying of different rates for the same service is always unfair. The CC said that
the case before them was an instance in which it was not unfair – this was because
the cross-subsidisation was temporary and would be phased out as soon as meters
had been installed in the suburbs.
 The CC also said that there was no invasion of the respondent.
 The CC did state that selective recovery of debts was unfair discrimination though.
o The CC felt that instituting legal action against on racial group and not
another was unfair discrimination.
o If the Council had put into place a properly formulated policy of debt
recovery that sought to transform the townships culture of non-payment for
services, then the policy would not have been unfair.
o The CC felt that the conduct of the Council was unfair and that it should
have instituted the same measures of debt collection against all parties.

The listed grounds

The listed grounds of prohibited discrimination are laid out in section 9 (3). They are:
 Race
o Racial discrimination is unfair discrimination based on race, colour, descent
or national or ethnic origin. These are biological and in some cases, social
categories on which powerful and destructive ideologies of superiority and
inferiority have been constructed.
 Colour
 Ethnic origin

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  Gender
o Gender is a social term and it refers to ascribed social and cultural male and
female roles.
 Sex
o Sex is a biological term – it refers to the biological and physical differences
between men and women.
 Pregnancy
 Sexual orientation
o This provision protects and identifiable group: those people who are
erotically attracted to members of the same sex.
o In National Coalition for Gay and Lesbian Equality v Minister of Home Affairs
there were certain provisions in the Aliens Control Act which were found to
be unconstitutional on the grounds of sexual orientation and marital status.
o South African spouses were granted an immigration permit. People who
were not married and people of the same sex (who were not allowed to
marry) were differentiated in an unfair manner.
 This perpetuated a number of harmful and hurtful stereotypes
about gays and lesbians.
 The discrimination was deemed to be unfair – there was nothing
that could be said in its defence.
 Marital status
o The ground of marital status discrimination gives impetus to law reform
initiatives aimed at removing the historical privileging of common-law
marriages over other forms.
o The ground also makes suspect the imposition of burdens on married people
that it does not impose on those who are not married.
o In Volks v Robinson NO it was held that provisions of the Maintenance of
Surviving Spouses Act which granted to surviving spouses the right to claim
maintenance from estates of their deceased spouses, constituted unfair
discrimination on the ground of marital status.
 Age
o This is different from the other listed grounds in that it does not refer to a
unchanging characteristic.
 Disability
 Religion
 Conscience and belief
 Culture and language
 Birth and social origin
These prohibited grounds, when manipulated, have the effect of retarding a person’s
dignity.
There is accordingly a presumption that differentiation on these grounds is unfair
discrimination which will impose a burden on the party who disputes this to probe
otherwise.

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The analogous grounds
Discrimination is differentiation on illegitimate grounds.
Differentiation on a ground that is not listed in section 9 (3) will be discrimination if the
ground is analogous to the listed grounds.
The CC has held that the listed grounds will therefore have a similar relationship and impact.
There is no presumption to aid the applicant in the case of analogous grounds.
 The applicant must show that law or conduct in grounds other than those listed in
section 9 (3) is “based in attributes which have the potential to impair human
dignity.”
Citizenship, though not a listed ground is suspect because it is based on attributes which
have the potential to impair the dignity of non-citizens.
 The CC has noted that foreigners are a minority in all countries and that they are in
danger of having their interests overlooked.
 Therefore, regulations that are geared at people who are not citizens are scrutinised
to make sure that non-citizens are not treated as though they belonged to a second
class of people.
In Hoffman v SAA the CC ruled that discrimination against an HIV positive steward was unfair
discrimination.

Direct and indirect discrimination

The prohibition on direct and indirect discrimination is intended to eradicate all forms of
discrimination on listed or analogous grounds.
The prohibition on unfair discrimination is based on the realisation that though the basis of
discrimination may be neutral, the impact or effect of the differentiation is discriminatory.
A law may be neutral at face value, but its administration could lead to unfairness.
The phrase “directly or indirectly” covers all three possible forms of discrimination.
 Any law which has an unfairly discriminatory effect or consequences or which is
unfairly administered may amount to prohibited discrimination even if the law
appears neutral at first instance.
 Section 9 (5) which presumes discrimination on one or other of the listed grounds to
be unfair discrimination applies both to direct and indirect discrimination.
In Pretoria City Council v Walker it was highlighted that the City’s actions were
discriminatory on the grounds of race indirectly even if its policy was neutral.
Whereas direct discrimination appears on the face of a law or conduct, if an applicant seeks
to rely on indirect discrimination it will often be necessary to adduce evidence that a
particular law or conduct has discriminatory effect, or is administered in a discriminatory
manner.
In S v Jordan the prohibition of prostitution – at least the criminal offences that were
attached to people engaging in sexual conduct for a reward – was under attack on the basis
that they were indirectly discriminated against as women. This was because the majority of
prostitutes were women while the clients were men – the clients were never punished.
 The CC stated that simply because the majority of people who broke the statute
were women did not mean that it was discriminatory.
 The CC also stated that simply because men were not arrested did not make the
legislation discriminatory – the lack of adequate enforcement measures were not

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 enough to bring about a declaration of invalidity. This was the feeling of the
majority.
 The minority saw it differently. They felt that there was no justification for not
charging the co-conspirator of a crime with the same criminal charges that the
original offender faced.
 They felt that the express stigmatisation and punishment of one side of the crime –
especially the side with the women in it – was indirect discrimination. This expressed
the double standards of society.
Discrimination need not be intentional – there is no need for the applicant to show that it
was intentional – they only have to show the presence of unfair discrimination. To require
a second showing of intention would place an onerous burden of proof on an applicant,
especially in cases of indirect discrimination.
Though intention to discriminate is not necessary to prove discrimination, it is required to
prove unfair discrimination.

Affirmative action
Affirmative action means preferential treatment for disadvantaged groups of people.
Such a programme will require a member of a disadvantaged group to be preferred for
distribution of some benefit over someone who is not a member of that group. The grounds
of preference are usually race or gender.
Affirmative action programmes can be seen either as an exception to the right to equality or
as part of the right to equality. The former view sees affirmative as reverse discrimination –
a practice of favouring those who were not favoured in the past. The latter view sees
affirmative action as a means to the end of a more equal society. This view treats equality
as a long-term goal to be achieved through measures and programmes aimed at reducing
current inequality.
The Constitution favours affirmative action.
Affirmative action programmes must not be set as derogation from, but a substantive and
composite part of the right to equality.
Differentiation aimed at protecting or advancing persons disadvantaged by unfair
discrimination is therefore warranted provided the measures are shown to conform to the
internal test of s 9 (2). This means that when a measure has been challenged, it can be
defended by showing that:
 It targets a person or class of persons who have been disadvantaged by unfair
discrimination.
 It is designed to protect and advance such persons and,
 It promotes the achievement of equality.
 If all of these measures are shown, then the programme will not be deemed to be
unfair discrimination.
Affirmative action is justified by its consequences. But there should be a real relationship
between the ends and the means. This means that AA programmes must be carefully
constructed.
It is accepted that AA programmes can be implemented in the proportions that
discrimination was practiced in the past.

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The Promotion of Equality and Prevention of Unfair
Discrimination Act (PEPUDA)
This Act is aimed at fulfilling the requirement set out in section 9 (4) as well as the obligation
that legislation addressing equality should have been implemented three years after the
adoption of the Constitution.
It is ambitious: it aims at eradicating social and economic inequalities. It seeks to do this by:
 Prohibiting unfair discrimination
 Providing remedies to victims of unfair discrimination and,
 Promoting the achievement of substantive equality.

Prevention of unfair discrimination

This Act can be horizontally and vertically applicable.
It does not apply to workplace discrimination to the extent that this is covered by the
Employment Equity Act.
Now that the Act is in force, its provisions must be relied upon and not the right in section
9 directly.
The Act has some advantages that section 9 does not have:
 Firstly, the Act shifts the burden of proof once the complainant makes out a prima
facie case for discrimination.
o The establishment requires more than a mere allegation. The complainant
must, to a reasonable extent, produce evidence of discrimination and that
evidence must call for an answer. In other words, the complainant must
show compelling evidence that if unanswered would justify a finding in the
favour of the complainant.
o Once prima facie discrimination has been made, the respondent is then
saddled with full onus. The respondent must convince the court otherwise
fully.
 A second advantage is that it presumes discrimination on listed and analogous
grounds to be unfair. This goes further than s 9 (5). The respondent always bears
the onus.
 The Act specifies several instances of unfair discrimination on grounds of gender,
race and disability.
 Fourthly, hate speech, harassment and dissemination of information that unfairly
discriminates, are specifically outlawed. The prohibition of hate speech is wider
than the ambit in section 16 (2) of the Constitution.

Access to justice
The second aim of PEPUDA is to ensure that there is access to justice for people who have
been unfairly discriminated against.
In this regard, all magistrates and high courts are equality courts within their jurisdiction.

Providing equality: Substantive equality and the positive duty to provide

Formal equality fails to address the prevalent disadvantages in society.

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 Substantive equality tries to alleviate this – it is a kind of distributive justice. This kind of
equality requires more than restraint from the state.
 It calls for a duty upon the state to take positive measure to promote equality,
including the allocation of resources.
It is argued that judges with their limited fact-finding capabilities are not the right persons to
carry out the allocation – it argued that the state is in a better place to do so. The state is
also an elected decision maker and they should be the ones that make the decisions for the
people.
Many argue that it is necessary that the failings of formal equality be recognised – formal
equality obstructs progress towards equality – substantive equality permits classifications
where the effect is to achieve greater substantive equality.
The courts have been limited in their role in substantive equality – they have been limited to
scrutinising the appropriateness of the criteria for eligibility.
 The courts have searched for additional criteria, supplementing the grounds
prohibited by formal equality, to distinguish appropriate from inappropriate
categorisation.
 The result of this practice is to differ to the state on key issues such as the definition
of disadvantage, the demarcation of the beneficiary and excluded groups, and the
purpose of the classification.
 The courts are favourable to being more proactive in the defence of substantive
equality if they firmly believe that it is a constitutional right.

The duty to provide

Formal equality is premised on an abstract individual, judged on personal merit.
 Formal equality insists that classifications of any kind are irrelevant and that all
people should be treated the same. It seeks to make any classification requirements
in resource allocation, merit-based.
 Formal equality fails to recognise that it is only in some context that these
characteristics are irrelevant and detrimental.
 The ongoing effects of past discrimination mean that the opportunities and life
course of many continue to be affected by their race, ethnicity or gender.
 Formal equality and its premise on the abstract individual, is essentially a myth.
 Formal equality holds out as universal and neutral the characteristic of the dominant
group, expecting conformity to the norm as the price for equal treatment.
Substantive equality differs from the formal kind in that it recognises that it is not the
classifications that engender inequality, but the existing disadvantages, both social and
economic.
 This understanding makes substantive equality into the uncertain frontier between
politics and law.

From negative to positive duties

Formal equality is premised on the idea that the state is the key infringer of human rights
– especial equality. It is on these grounds that the right to equality bars the state from
intruding on individual equality.

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  It is thought that the courts are in a good position to monitor the activities of the
state and enforce civil rights because they (the courts) are independent from the
state, and they are not conducive to the whims of the majority.
 Rights in this case are characterised as restraints and social provision or welfare as
policy.
 A negative duty of restraint assumes that inequality is a result of acts of prejudice
against individual victims by identifiable and culpable state or other actors.
 A key insight of substantive equality is that societal discrimination extends well
beyond individual acts of prejudice – to bring about real change; the state should act
positively to promote equality. This requires the state to facilitate and provide.
 Substantive equality entails a duty to provide.
A different approach sees the objective of equality rights as achieving equality of results.
According to this proposition, it is not enough to distribute existing resources, with the result
that one person’s gain is another’s loss. Real change entails enlarging the cake.
Substantive equality has certain aims:
 First it seeks to break the cycle of disadvantage associated with certain groups.
 It seeks to promote respect for equal dignity.
 The positive affirmation and celebration of identity within community.
 It should facilitate full participation in society.
 All of these goals require positive action – they entail a duty on the state.

The limits of justiciability: Positive duties and the courts

Positive duties reconfigure discrimination law in radical ways.
The duty bearer is not a person at fault but the body that in the best position to bring about
the change. The body has the duty to detect and to address inequality.
A negative duty to refrain from interfering with individuals is determinate, individualised and
immediately realisable.
A positive duty on the state to protect or provide necessarily involves questions of resource
distribution.
 Given the scarcity of resources a system of priorities is inevitable.
It is argued that rights giving rise to duties of restraint are already enforceable. If rights
giving rise to positive duties are not also protected, the duties of restraint will automatically
trump positive duties.
To regard rights as mere restraints on the state leaves social structures of inequality
untouched.
Groups that suffer from discrimination do not often have access to political avenues even
though they might be democratic. Welfare rights themselves may continue to entrench
these inequalities as well – for example, the granting of welfare to pregnant women may
entrench the belief that women’s position is in the household.
A reason for including the courts in the resource allocation process is to make sure that the
policy making process is available to all and protects those with no say in that process.
The ideas of substantive equality correspond closely with those of the developed welfare
state. The principle goal of the welfare state is redress disadvantage with substantive
equality being designed for the address.
Substantive equality seeks to protect people who are especially vulnerable.

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 The real problem with substantive equality is whether the state should provide it to other
people as well when it decides to provide it to one party.
One key question that could be used to determine whether the duty should exist is nature of
the benefit – is it a fundamental right or within the largesse of the state?

Substantive equality as judicial reference

Substantive equality manifests itself as judicial deference when it protects the state from
having to explain its decision to exclude a particular group from a particular benefit.
This is done by deferring to the state in defining each of the main ingredients of substantive
equality.
Requiring the state to provide explanations for decisions taken enhances the ability of
decision makers, exposing them to public scrutiny and debate.
Requiring the state to provide a reasoned explanation does not necessarily require the
judges to subject the reasons to strict scrutiny.
The judicial role when it come to substantive equality remains a supervisory one. This role is
not easy to define.
How do courts decide whether exclusion is unfair?
 They do this by looking at the victims actual feelings of self-worth.
 This leads to a subjective test of how the person legitimately feels.
 The objective test is measured using the reasonable man.
o If a reasonable person would feel aggrieved by the exclusion, the unfairness
is established.
o It often happens that the reasonable person is no more than the
government’s own perception of its policy aims.

Socio-economic rights: A better route to substantive inequality?

Khosa was the first case to deal with socio-economic rights and equality in the same case.
The challenge was brought to the court by two permanent residents who were not allowed
to claim pensions from the state despite paying taxes and doing all the other things that
citizens usually do.
 It was recognised in the case that any benefit system requires classification.
 But the classification must be reasonable and the court is entitled to review the
decision for reasonableness.
 Mokgoro J emphasised that reasonableness is more than mere rationality.
 To judge reasonableness it is was deemed necessary to assess the purpose of
limiting citizenship and its impact on other grounds.
 In this case, it was not necessary for the applicants to prove that they were a part of
a historically disadvantaged group. The fact that they felt discriminated upon was
enough to shift the onus to the state.
 Mokgoro J held that the cost of keeping permanent citizens on the social assistance
roster was not big enough to justify the distinctions made by the state.
The extent and nature of the court’s role in assessing the state’s redistributive policies was
confronted directly in Van Heerden. Two main issues were argued:
 Firstly, the state’s remedial purpose was challenged on the grounds that it could not
be said that the whole of the beneficiary group was previously disadvantaged.

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  Secondly, the state had not proved that there were no other less burdensome ways
to achieve their goals.
 The problem that was to be answered in this case was the manner in which the
government was allowed to define beneficiaries of a certain policy and the ways that
it chose to pursue the subsequent policy.
 S 9 (2) allowed the state to classify people pursuant to its policy.
 The High Court felt that there was a necessity for the state to prove that there was
no other way in which a certain policy could be achieved.
 The CC stated that in this case, it was not necessary for the state to show that there
were other less burdensome alternatives. All that was required was the proving of a
rational relationship between the goal and the means to achieve the goal.
 The judgments indicate that the courts should play a gate-keeping role, controlling
the criteria for entry to s 9 (2). The judgments did differ in the manner of the
strictness that was required though.
 For Mokgoro J, the CC’s scrutiny role necessitated a strict test of “fit” between
disadvantage and the group classification, because of the fact that once withing s 9
(2), the CC would not insist on a high standard of justification.
 In this case, the beneficiary group was over-inclusive in that at least 21 percent of its
members had not been barred from membership of Parliament during apartheid.
On this test, the post-1994 group was not sufficiently tailored.
 Moseneke J stressed that although substantive equality is admittedly prejudices on
group, it should not amount to abuse of power – it should not impose substantial
and undue harm on those excluded from its benefits.
Courts will need to develop criteria to assess the state’s policies on resource allocation and
the provision of benefits.

Equality for All? A critical analysis of the equality jurisprudence of the Constitutional Court
Equality is viewed as a core principle of the new RSA. This is stated in section 1 of the
Constitution.

Non-discrimination at the centre of equality

The CC has placed anti-discrimination at the heart of its approach.
It has shown that in order for a claimant to succeed with an equality challenge, it will almost
be necessary to frame the matter as one of “unfair discrimination” and not in terms of a
general equality claim. The court seems to show that section 9 is nothing more than a
guarantee against non-discrimination.

The centrality of human dignity

The equality clause guarantees human dignity. This was first established in President of RSA
v Hugo.
 In this judgment, it is suggested that the equality guarantee protects individuals
from differentiation based on one or more of the specified grounds in s 9(3). Or
differentiation which has the potential to infringe on their fundamental dignity.

Basic structure of the analysis of section 9

It is the nature of all laws that they cannot treat everyone alike.

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Section 9 is therefore aimed at identifying the criteria that separate legitimate
differentiation from differentiation that has crossed the border of constitutional
impermissibility and is unequal or discriminatory in the constitutional sense.
Section 9 (1) has been earmarked as dealing with mere differentiation and section 9 (3) as
dealing with unfair discrimination.
The CC has stated that there are instances in which it is desirable to classify people to make
administration easier. In such instances, this is called mere differentiation.
 It may still fall foul of section 9 (1) if it can be shown that the state did not act in a
rational manner when differentiating between individuals.
 The requirement is made even more apparent by the court’s insistence that there is
no need for the state or other relevant actors to prove that the objective could not
have been achieved in a better or different way.
 As long as there is a rational relationship, then the impugned provision will not be
seen as discriminatory.
Unfair discrimination is envisaged by section 9 (3).
 To determine this, the court will look at whether there is discrimination and whether
it amounts to “unfair discrimination”.
 The first category is differentiation on a listed ground.
 The second category of unfair discrimination is on an analogous ground.
 Discrimination on an unspecified ground must be assessed objectively.
 Where the discrimination is on an analogous ground, the court will have to make to
objective decisions:
o Firstly whether the differentiation relates to the unequal treatment of
people based on non-listed grounds but are comparable to them.
o Second, it will have to determine whether this differentiation has the effect
of treating persons differently in a way which impairs their fundamental
human dignity.
o Goldstone J cautioned against a narrow definition of the factors that can
harm a person’s dignity.
 When a listed ground is the basis of the challenge, unfair discrimination is
presumed. This can be rebutted. It then becomes the duty of the other party to
prove that this is not so.
 When discrimination is on unspecified ground, then it is up to the complainant to
prove that there is unfair discrimination – it is not immediately presumed.
 The use of dignity to protect against unfair discrimination has been criticised by
some authors because it is hard to determine what the content of dignity actually is.
 In deciding whether there has been unfair discrimination, the court has said that it
will look for:
o The position of the complainant in society and whether they have been the
victims of past discrimination or patterns of discrimination.
o The nature of the provision or power and the purpose sought to be achieved
by it.
o The extent to which the person’s rights and interests have been impaired
with regard to fundamental human dignity.

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Harksen v Lane

Goldstone J
This case solidified the equality test – was made absolutely clear.
Mr Harksen went insolvent and in the execution of his property, his wife’s property was also
attached because they were married in community of property.
This case involved s 21 of the Insolvency Act that allowed for the solvent spouses property to
vests in the Master of the High Court.
The onus of proof then rests on the spouse to prove it was their property.
Mrs. Harksen was claiming that her right to equality was being infringed.
She said that she was being treated differently from all others (who had a similarly close
relationship to Mr Harksen) who may have been attached to the estate.
Differentiation was claimed on the basis of marital status
Steps of the test used by the court:
a) Go to s 9 (1) to determine if it has been violated, by asking if there has been
differentiation between people or categories of people (does not seem to apply
horizontally).
o If there is no differentiation then no part of S9 has been violated.
o If there is differentiation, then you have to show that there is a rational
connection between the differentiation and a legitimate government
purpose it is designed to achieve.
o If there is no such connection, then s 9(1) has been violated, and in principle,
you should go to s36 (limitations clause) – as it does not amount to a breach
of s9 but you need to establish whether it is justifiable, etc under s36
o In practice, however this may not be necessary because this test already
deals with the issue of rationality.
b) If there is a rational purpose – the court will move onto s9 (3). Does the
differentiation amount to unfair discrimination?
o There are two categories of discrimination:
 Differentiation on specified/ listed ground
 Differentiation not on listed ground but which is analogous to such
ground.
o Unfair Discrimination – means treating people differently in a way that
impairs their fundamental human dignity or affect them adversely in a
comparable serious manner
o This question is broken up into first determining whether there has been
discrimination, and then secondly whether that discrimination was unfair:
 If not on one of the listed grounds, then the claimant bears the onus
of proving both discrimination and unfairness.
 If the discrimination is on one of the listed grounds, then the
discrimination is presumed to be unfair – it thus the onus of the
party doing the discrimination to prove otherwise, remember that it
is a rebuttable presumption of unfairness (i.e. you need to back it up
by showing discrimination)

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 o One proves discrimination by showing that the differentiation impairs you
fundamental dignity i.e. “whether the ground is based on attributes or
characteristics attaching to them, which have the potential to impair the
fundamental dignity of persons as human beings or to affect them seriously in a
comparably serious manner”. If something does meet this test, then it referred
to as an analogous ground.
o If one cannot prove discrimination, then there has been no violation of s9 (3). If
you can, then look at whether or not the discrimination is unfair.
o If the discrimination is on unspecified grounds, then the complainant must show
how it has impacted on them and others in a similar situation i.e. does the
action treat people differently in a way that impairs their fundamental human
dignity.
o The court set out 3 questions to determine whether this impact was unfair
(impact test): What is the extent to which the discrimination has affected the
rights of the complainants and whether it has lead to an impairment of the
fundamental human dignity?
 Look at the position of the claimant in society and whether they were
previously disadvantaged (suffered as a result), and also the
vulnerability of the group in question – is it on a specified ground or not.
 Look at the nature and purpose of the power. What value does it
promote, is it aimed at achieving an important social goal? One may also
look at whether this power exists in other democracies. Is it attempting
to achieve a worthwhile societal goal.
 Look at the extent to which the rights of the complainant have been
impaired. Does it have a serious effect, how permanent is the
impairment on their human dignity, and is it the whole right or just a
part that has been removed?
c) If the discrimination is found to be unfair then it is in violation of s9 (3) / (4) a
determination would have to be made as to whether the provision can be justified
under the limitations clause s36
o This does not apply to private discriminations as there is no law of general
application.
o The court asks the same questions in impact test under s36 – must be
related to equality in some way, and justified. (If fair then there is no
discrimination no need to move on).
How the court in Harksen applied the test:
 The court talks about differentiation (in this instance between solvent spouses and
non-spouses/ others who may have had dealings with defendant).
 The court also looked at the (rationality and legitimacy) purpose of the provision -
which was to prevent collusion between spouses when one was insolvent and to
protect creditors.
 In this instance, the court held that there was a rational connection between the
differentiation and a legitimate Government purpose – therefore s 9(1) not violated.
o They found that the statutory mechanism was appropriate and effective.

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  The court then looked at discrimination, which at this time was not on one of the
listed grounds, so the presumption did not operate (was brought under the Interim
Constitution).
 Council then had to prove (discrimination) that it was on an analogous ground.
 Marital status was deemed to be a deeply personal issue involving a close
relationship with the potential to demean people in their fundamental human
dignity, and therefore it was analogous and thus did discriminate.
 Was the discrimination unfair? [para 51] The court looked at whether the impact (on
rights, interests and dignity of complainant and others in his/ her position) impaired
the fundamental human dignity of the complainant.
 Looked at the:
o Position of complainant in society: - The majority said that spouses were not
a historically discriminated group, and neither were they vulnerable.
o Purpose of the discrimination: - The purpose was not aimed at impairing her
rights, but at protecting creditors and thus consistent with a legit
government purpose.
o Nature and power of provision: power exercised by parliament which has
the right to do so – protect public/ private interest.
o Effect of the discrimination on solvent spouse: The court said that it was
only a mere inconvenience, because Mrs Harksen could retrieve the
property using facts that were within her knowledge, and the court would
intervene if there were any problems in achieving this
 Found it did not constitute unfair discrimination.

O’Regan dissenting
 Finds there is discrimination and moved on to a s36 analysis.
 Thus looked at the proportionality of the invasion and the measures attempted to
be achieved.
o She found that it may deter collusion – but no evidence of it doing so as
things such as cash and jewellery could be hidden from trustee.
o It also does not include categories of people who had relations with the
insolvent spouse.
o It attaches everything of the solvent spouse – no matter how remote.
o In other jurisdiction the law tries to balance the interests of the solvent
spouse, as well as taking steps to include those who had close relationship
with insolvent spouse.
o Therefore not reasonable and justifiable.
 Purpose and effect are not closely related.
 And disproportionably favours the interests of the creditors over that of the solvent
spouse.
 Is an inconvenience and an impact – removing resources needed to go to court.
 The decision to marry is important and has important consequences both personal
and property. Suggests that vulnerability arises out of the State over-regulating the
affairs of married couples.

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  She also stressed that married spouses were in the past discriminated against
(historical patterns of discrimination) - i.e. woman in the relationship and people
who could not get married, and this has thus entrenched deep inequalities in our
society
 She says that the majority make the mistake not to look at others in Mrs. Harksen’s
situation. (A & G say that she was unlikely to evoke sympathy).
 She was rich with her own business, but what about poor spouses who do not have
her means.
 She also says that the clause may be over-invasive as it includes all kind of property,
no matter how remote from the insolvent spouse – and thus adversely affects the
interest of solvent spouse.
 The majority was also criticised because it focuses on personality and not dignity,
and does not take note of material and financial issues.
Why difference between majority and minority:
 Possible gender breakdown of bench – predominantly male
 Impact test seems to be the difference – majority are superficial about the impact
on the rights, dignity, etc and she was very wealthy and therefore unlikely to invoke
sympathy, therefore the majority did not feel much for her (court should have
looked at the impact of the provision in general – what would have happened to a
poor woman with no resources)
 Minority – looked at the impact on material interests and rights
Summary of test:
 Preliminary enquiry as to whether the impugned provision or conduct differentiates
between people or categories of people
 If there is no differentiation then there is no question of a violation of any part of s9
 If it does differentiate then a two stage test is required:
o Test whether the law or conduct has a rational basis (between
differentiation and a legitimate government purpose that is designed to
further achieve equality).
o If “no” then there is a violation of s9.
o If it is rational connection then the second stage is instituted as it may still
be unfair under s 9(3) and (4):
 Does the differentiation amount to discrimination
 Listed grounds – Yes (presumed)
 Non Listed grounds – analogous grounds (impair dignity) – Yes
(complainant prove – impact test)
 Not unfair – no violation
o Can it be justified under s36 limitations clause?
 Unfair discrimination and differentiation can be justified under s36
without a rational basis – it is however hard to justify unfairness and
irrationality in an open democratic society based on.

Minister of Finance vs Van Heerden

The case deals with provisions in the Political Office-bearers pension fund, which gave
different employer contributions to M.P’s and other political office bearers between 1994

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 and 1999. This was to mitigate the discrepancies caused by the Parliament of 1983 to 1994
which awarded members at that time very high contributions out of fear that the new
government would fire them or pay them less.
The Constitutional attack on the policy by the respondent was on two grounds: i) unfair
discrimination- ,this was defended saying that it was a “tightly circumscribed affirmative
action measure” permissible under the Constitution- and ii) the fund as a whole is a nullity
because it was not established under s219. This summary deals with the first challenge as it
was prescribed for this.

Majority judgement
The respondent alleged that equality had been breached on three grounds:
 He said that ameliorative measures under s9 (2) can be deemed ‘positive
discrimination’ if based on any of the grounds in s9 (3) and this claim was based on
race. He said that the onus to prove it is fair falls on the party implementing them.
 The state hasn’t shown that in order to provide benefit to the previously
disadvantaged members, the disfavoured group has to have their benefits lowered.
This was based on the fact that the state was not out of pocket.
 Although the measures do not seriously affect the whole group, the claim to
unfairness must be lodged for the whole group as, when attempting to assess the
constitutional validity of a scheme an objective approach would require the position
of all members to be considered.
Firstly discussed what equality means to modern day South Africa: it involves taking the
substantive meaning to equality as South Africa has a unique past that must be rectified.
Disagreed with the High Court and said that this was not to be taken as a s9 (3) case even
though it involved racial categories, but must be subject to s9 (2) as it was aimed at
advancing the disadvantaged. It should not be viewed as derogation from, but an instrument
of achieving equality.
Responding to the claims of the defendant, in dealing with A) he said that the test was
threefold:
i. Measures must target persons or a)categories targeted by b)past discrimination: a)
this distinction is an open list as things could change over time and b) the limits of
past discrimination were said that if the overwhelming majority of the group
continue to suffer from the discrimination then they are eligible.
ii. The measures must be designed to protect or advance members of the
disadvantaged group: they must not be arbitrary, capricious or display naked
preference. They must be a reasonable likelihood of meeting the purpose- if not
then it can’t be said to be advancing their interests. In this case the purpose was to
even out the past discrepancies and the plan was likely to do this. In a response to
claim B) they said that s9 (2) does not require the court to analyse necessity to or
purpose to prejudice others. This is because the measures are there to protect
disadvantaged groups, and are not predicated on the intention to harm others.
Prejudice may arise but it is incidental, and not the target of the legislation.
iii. It is meant to promote the achievement of equality in the long run. Said the
provision should not constitute an abuse of power or impose such substantial harm

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 as to exclude those who are not benefitting to the extent that Constitutional goal of
harmony and love etc would be threatened.
The legislation was said to have passed the test, the occurrence of a portion of the
respondents who are more affected than the others does not mean that the scheme lacks
efficiency or purpose.

Mokgoro (dissenting)
Agrees with the findings and the results, but says that this is a s9 (3) case.
She says that if measures are incorrectly placed under s9 (2) it gives the complainant little
ground to stand on, and conversely if s9 (3) gets built into s9 (2) then the transformation
process gets unduly hampered.
She agrees with the iii requirements to ascertaining s 9 (2), but says Masoneke’s approach to
i) (see above) was wrong.
 She says that in cases such as this the state could hide behind s9 (2) as it will; not
have to prove fairness [para 84].
 The requirements that allow whole categories of people to be advanced as long as
they can prove members of the group suffered past discrimination, disregarding
circumstances of the individuals, are clearly open to abuse *para’s 85 and 86+.
 She refers to s9 (2) as powerful and unapologetic, therefore it should not be abused
or used for purposes which it was not intended for [para 87].
Turning to the facts she asserted that she couldn’t find a previous discrimination ground on
which to say that this provision was correcting:
 She said that the claim of it addressing previous discrimination on the grounds of
political affiliation is not strong enough as it was not proved that the vast majority
of the newly elected MP’s had faced discrimination from the previous parliament
due to their political beliefs.
 The assertion that it correcting past racial discrimination falls short as well due to
the fact that only 70% were ‘black’ and of these-not all of them had been excluded
from the previous parliament.
 It therefore should not have qualified part i) of the test.
She asserts that measures such as this, which she points to as failing to meet the
requirement of a previously disadvantaged groups, can be tested against s9 (3), using the
test developed by Harkson v Lane.

Ngcobo (dissenting)
Said that he also felt that this did not qualify as a 9 (2) but acknowledged that not all
remedial provisions do, it must simply be tested under s9 (3) which would spell out whether
the discrimination was unfair or not.
Said discrimination was not unfair because it sought to correct broad discrepancies caused
by the unfair practices of the past.

Sachs (dissenting)
Concurs with both the judgements by the majority judgement, and also with the minorities.
He says that he agrees that s9 (2) should not be used to allow unfair practices by the state
but also with the idea that it would be illogical to allege unfairness under s9 (3) read with s9
(5).

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Says that not too much emphasis should be placed on the separation of s9 (2) and s9 (3),
because if we are trying to focus on substantive equality we should do so while not bringing
the Constitution into disrepute.

Constitutional law notes by Rémy Ngamije, 2010.

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Section 20: Socioeconomic (SE) Rights

Introduction
The Bill of Rights protects political and civil rights – this is the narrowest conception of the
Bill of Rights. They are called first generation rights.
 These impose a negative obligation on government not to interfere with them
without good reason.
The Bill also protects socioeconomic rights – these are second generation rights.
 These rights are also protected because it is understood that people cannot enjoy
first generation rights without a satisfactory guarantee of the second generation
rights. The second generation rights are needed for the proper recognition of human
rights.
 Second generation rights impose obligations on government.
The socioeconomic rights cover education, health care, food, water, shelter, access to land
and housing.
Sections 26 and 27 are the most prominent visible rights.
 They entrench the right for all people to have access to adequate housing, health
care services, sufficient food and water, and social security.
 These sections require the government to take reasonable legislative and other
measures within available state resources to achieve the progressive realisation of
these rights.

The justiciability of socioeconomic rights

The degree to which socioeconomic rights are justiciable remains a bit of a grey area.
There are two common arguments that are raised against judicial enforcement of SE rights:
 The first is the separation of powers
o This argument states that the judiciary is essentially an elite and unelected
group of people that have no right in determining what the democratically
appointed legislative and executive do with scarce public resources.
o They judiciary has no power to compel the government to adjudicate in the
apportionment of public resources.
 The second argument is polycentricity
o The judiciary has limits in the carrying out of its function. There is a limit to
judicial capacity.
o Polycentric tasks entail the co-ordination of mutually interactive variables: a
change in one variable will affect others. It is argued that the judiciary does
not have the capacity to deal with resource allocation on a local and national
stage.
Despite these arguments, the CC has stated in the First Certification Judgment that
socioeconomic rights are fully justiciable. At the very minimum, they are negatively
enforceable.

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  This means that the government cannot put people in a worse situation than they
previously were.
 Negative protection is the kind of protection that is usually given to civil and political
rights.
 The government cannot subject people to “deliberately retrogressive measures” –
these are measures that put people in a worse situation than currently exists.
 It is not only the government that is prevented from interfering with SE rights; the
private sphere is also prevented from doing so as well.
 S 26 is a package of positive and negative obligations.
The International Covenant on Economic, Social and Cultural Rights (ICESCR) has been
ratified by 130 states and has had the effect of establishing a minimum core of rights that
must be fulfilled by the governments of the charter.
 This charter is protected and monitored by the UN Committee on Economic, Social
and Economic Rights.
 Under this covenant, the role of governments does not end at simply not interfering
with people’s rights. In addition to this, the government must take progressive steps
to ensure that the SE rights outlined in the document are realised. The government
must implement steps (legislation and programmes) to make sure that SE rights
become more than rhetoric.
o The burden is on the state to show that it is making progress towards the
full realisation of rights.
o There is an obligation on the government to show the appropriateness of
the measures that it adopts in fulfilling SE rights.
o Resource scarcity does not relieve states of the duty to provide for SE rights.
The minimum core must still be met. These minimum cores of rights exist
unless the state can show that its resources are so inadequate to allow it to
fulfil its duties.
o It is important to distinguish between the inability of the state to fulfil SE
rights and the unwillingness of the state to do so.
According to the CC, there are three ways in which the positive obligations of the state are
outlined in the formulation of the SE rights.
1. Reasonable legislative and other measures
o The standard of reasonableness is used to weigh government action when it
comes to SE rights.
o The CC has stated that the precise content and regulations of measures are
the matter for the legislature and the executive to decide. They must
however, be reasonable.
o The program or policy of government must be reasonable at both the
legislative and implementation stages.
 The state is obliges to achieve the intended result and the legislative
measures will have to be supported by appropriate and well-
directed implementation.
o The courts can ask government to explain why they have chosen certain
measures to pursue the fulfilment of socioeconomic rights.

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 o The courts can also require the government to give a progress report when
it comes to a certain policy.
o The government has an obligation to justify its choice of means to the
public.
o The explanation is evaluated according to reasonableness and its
persuasiveness to a “reasonable person”.
o The CC has abstained from setting a standard of reasonableness, stating that
it must be done on a case by case basis – reasonableness is context
sensitive.
o In Treatment Action Campaign the court had a number of reasons why it
rejected the government’s arguments.
 The government had insisted that the efficacy of the drug was
questionable and that there was a fear of resistance to nevirapine –
to this, the CC stated that scientific evidence showed that it was
amenable to the purposes that it was being put to. The benefits of
the drug far outweighed the slim possibility of resistance.
 It was then argued by government that the public health system
lacked the capacity to deliver the drug nationally – to this the CC
said the lack of capacity was not a relevant consideration.
 The CC ruled that the justifications were inadequate.
o In the Khosa case, the CC highlighted the interconnectedness of the rights in
the Bill of Rights and held that a factor in ascertaining the reasonableness of
a measure is its impact on other rights.
2. Progressive realisation
o The fact that SE rights must be realised progressively does not change the
fact the state must do everything within its power to bring such rights into
existence as soon as possible.
3. Within available resources
o SE rights are further limited by the fact that they must be fulfilled within
available resources.
o In the absence of available resources, the state cannot be deemed to be
ignoring SE rights.
o If resources are available or do become available, then the state must justify
its reasons for failing to realise the SE rights.
o In Soobramoney it was declared that the court would be slow to interfere in
policy that was conducted in good faith.
o The availability of resources grants the government a wide discretion in the
allocation of such resources. This does not mean that the state is
unchallenged in its decisions.
o Resource scarcity does not relieve the government of its SE obligations.
o Even when resources are scarce, the government must achieve whatever SE
rights it can with the scarce resources.
o The CC declined to set a minimum core of SE rights in the Grootboom case. It
stated that the standard of reasonableness was the main issue in
contention.

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 o It also argued that setting a minimum core would raise the issue of
polycentricity and that the court would have to look for evidence well
beyond its judicial capacity. The CC stated that the UN Committee was given
the chance of developing the minimum core of rights over a long time and
with a large task force at its disposal – the CC did not have such a resource.
o In avoiding the setting out of minimum cores, the CC made sure that there
was no bare minimum standard of rights that must be immediately complied
with.
o In the TAC case, the court held that there was no minimum core of rights.

Monitoring the implementation of socioeconomic rights

The SA Human Rights Commission is charged with monitoring the progress of SE rights
realisation.

Housing
Access to adequate housing
S 26 (1) provides a right of access to adequate housing – this is not an unqualified obligation
on the state or a duty to provide housing on demand.
It is a right of access to housing rather than a right to adequate housing.
The state must create conditions for access to adequate housing for people at all economic
levels – Grootboom case.
This means that the state has different obligations to different economic groups – the
obligation is more strongly pronounced at the more vulnerable members of society.
S 26 (2) also shows that the state must take positive steps to make sure that the right to
adequate housing is realised.
The general right of access to housing can be negatively enforced against improper invasion
in the form of arbitrary evictions. S 26 (3) entrenches a conventional negative right. The right
prohibits evictions without a court order and requires the court to consider all relevant
issues before granting the eviction notice.
The section does not qualify the nature of a person’s home. In addition to this, whether the
occupation is lawful or unlawful is not stated.
S 26 (3) does not allow courts to refuse an eviction order where the owner is otherwise
entitled to such an order.
Unless the evictee has a common-law or statutory right of occupation, an eviction must be
granted.

Health care, food, water and social security

Content of the right
S 27 provides for the right of access to health care, water, food and social security.
This right may not be infringed by retrogressive measures. This right must also be
progressively realised.

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 The right may also not be subjected to any retrogressive measures.
There is a difference between social security and social assistance: the former refers to
insurance schemes to which workers and employers contribute for the purposes of financial
old-age pensions and the life.
 The latter refers to needs-based assistance financed from public funds.
S 27 (3) states that no one may be refused emergency medical treatment. According to the
CC, this section was enacted so that no one would be denied medical treatment in an
emergency case.
It must be noted that this section does not create a constitutional obligation on the state to
provide emergency medical services so that no one may ever be denied treatment – it is
merely a right not to exclude people from such a service.
In Soobramoney it was held that someone suffering from chronic renal failure was not in an
emergency situation and that where hospitals denied the right to provide dialysis, it would
not be a violation of the right.
 This is because the inability to provide dialysis results from a systemic problem in
the healthcare system.
In granting adequate medical treatment, due regard must be taken to what the state can
afford to provide.
The Constitution does not require optimal medical treatment – only adequate.

Limitation of socio-economic rights

The CC made no reference to socioeconomic rights in Grootboom.
The reason why the limitation clause is inapplicable is because few cases involve a law of
general application.
Since most SE rights litigation is likely to be concerned with the positive obligations imposed
by the rights, violations of the rights are likely to take the form of omissions.
It is unlikely that there could be any possibility of justifying an infringement of the positive
dimension of the SE rights by law.

Remedies
Popular remedies provided in SE rights litigation are:
 The structural interdict (which directs a violator to take steps to rectify a violation of
rights under the court’s supervision) and,
 Declaratory relief.
In the Grootboom case, the CC held that the High Court’s interpretation of s 28 (1) was
incorrect.
 The subsection did not warrant the placing of children’s rights to housing at the core
of the Se right.
 The right to housing could not be tempered with the presence of children. In this
case, the CC held that a declaratory order was required.

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Additional notes
By Jessica Griffiths

Housing: Section 26

1) Everyone has the right to have access to adequate housing.

2) The State must take reasonable legislative and other measures within its available resources,
to achieve the progressive realization of this right.
3) No one may be evicted from their home, or have their home demolished, without an order
of court made after considering all the relevant circumstances. No legislation may permit
arbitrary evictions.

Health Care, food, water and social security: Section 27

1) Everyone has the right to have access to –

a) health care services, including reproductive health care;
b) sufficient food and water; and
c) Social security, including, if they are unable to support themselves and their dependants,
appropriate social assistance.
2) The state must take reasonable legislative and other measures, within its available
resources, to achieve the progressive realization of each of these rights.
3) No one may be refused emergency medical treatment.

a) The distinction between first and second generation rights

Civil and Political rights, such as equality, free speech, association etc. are the so-called ‘first
generation’ rights.
 These are thought of as negative rights that take power away from the government
by imposing a duty not to act in certain ways.
Socio-economic rights, such as the right to housing, water and food, are the ‘second
generation’ rights. These are ‘positive’ rights that impose obligations on government.

b) The difficulty of adjudicating Socio-economic rights claims

The principal difficulty with socio-economic rights lies in their justiciability – the extent to
which they can and should be enforced by a court.
Attempts to include these rights in the Bill of Rights were met with the objection that these
rights are not suited to judicial enforcement. This objection is hinged on two problems –
separation of powers and the problem of polycentricity.
Separation of Powers: it has been argued that justiciable socio-economic rights will require
the courts to direct the way in which the government distributes the state’s resources. For
this reason, they are beyond the proper scope of the judicial function.
Polycentricity: This time the problem is not politics, but judicial capacity. Polycentric tasks
entail the coordination of mutually interactive variables: a change in one variable will
produce changes in all of the others.
An example is a rugby side: If we move James from Fly half (where his dashing good looks
and blistering pace allow him to be a huge asset to the side) to Full-back (where his lack of

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 lower body strength and near non-existent tackling abilities make him one hell of a liability)
the whole side must change with a different set of repercussions on the remaining players.
The degree of polycentricity in socio-economic rights litigation is inevitably very high.
The Constitutional Court discussed the nature of socio-economic rights and the problems
associated with judicial enforcement of them in the First Certification Judgment. The court
makes two points: First it questions the rigidity of the distinction that is often drawn
between socio-economic rights and civil and political rights. The court suggests that both
involve positive obligations being placed on the State. Secondly, the CC confirms that the
socio-economic rights in the 1996 Constitution are justiciable.
Negative Obligations: There is a negative obligation not to interfere with something that
they have a constitutional right to do.

c) Positive Obligations: the International Covenant on Economic, Social and Cultural Rights:
The most important international instrument relating to socio-economic rights is the
International Covenant on Economic, Social and Cultural Rights of 1966 (ICESCR). It has been
ratified by about 130 states.
The Covenant recognizes a number of substantive rights and the basic obligation imposed by
the Covenant on a member state is ‘to take steps…to the maximum of its available
resources, with a view to achieving progressively the full realization of the right by all
appropriate means, including particularly the adoption of legislative measures’.
The primary responsibility of enforcing the Covenant lies with the UN Committee on
Economic, Social and Cultural Rights.
According to this committee, a state’s obligations under the Covenant do not end with the
duty to refrain from interference with the enjoyment of the socio-economic rights.
The rights have an additional positive dimension in that they can be adequately realized only
by taking positive steps directed towards fulfilling the rights. The following principles have
emerged from State practice:
i. Full realization can only be realized progressively, but that does not mean that states
are not obliged to do what is immediately within their power to do towards that
goal.
ii. ‘Appropriate’ leaves a large margin for states, but the states are under an obligation
to show the appropriateness of the measures taken.
iii. Scarce resources do not excuse a state from complying with the ‘core minimum
obligations’.
iv. It is important to distinguish the inability from unwillingness of a state. If the state
claims it has insufficient resources, it is under an obligation to prove this.

d) Positive Obligations: In the 1996 Constitution (Continued)

The ground breaking case with regards socio-economic rights in the 1996 Constitution was
the Grootboom Case. According to the court the formulation of socio-economic rights
delimits the state’s positive obligations, qualifying them in three ways: ‘a) the obligation to
take reasonable legislative and other means; b) to achieve the progressive realization of the
right; and c) within available resources.’ Each qualification will be considered in turn, but the
first is the most important.

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Reasonable legislative and other measures:

Grootboom Case
Facts: The group of people with whom we are concerned in these proceedings lived in
appalling conditions, decided to move out and illegally occupied someone else’s land. They
were evicted and left homeless. The root cause of their problems is the intolerable
conditions under which they were living while in the queue for their turn to be allocated
low-cost housing.
Principles: The question will be whether the legislative and other measures taken by the
state are reasonable. A court considering reasonableness will not enquire whether other
more desirable or favourable measures have been adopted, or whether public money could
have been better spent. The question would be whether the measures that have been
adopted are reasonable.
 Mere legislation is not enough. The state is obliged to act to achieve the intended
result, and the legislative measures will invariably have to be supported by
appropriate, well-directed policies and programmes implemented by the executive.
 [This makes it possible for a court to make a finding that there has been a violation
by the state of an individual’s socio-economic rights because the state’s programme
to fulfil the rights is not reasonable.]
 Finally the court decided that in each case, the reasonableness enquiry must be
made on a case-by-case basis and that the standard is context sensitive:
‘Reasonableness must be determined on the facts of each case.’
Conclusion: What was lacking was provision for temporary shelter for people in a situation
of homelessness. The people in this case where found to be in desperate need. The
legislative and policy measures had overlooked those most in need, an omission that was
unreasonable, additionally because it was in conflict with other constitutional obligations to
respect human dignity and the right to equality.
The Court held that reasonableness requires: the design, adoption and implementation of
measures to realize socio-economic rights that are comprehensive, in the sense that they do
not exclude those most in need of the protection of those rights.

Treatment Action Campaign Case:

Facts: The State decided to implement a ‘pilot site’ program for the anti-retroviral
nevirapine. In this program, pregnant mothers were only able get free nevirapine from 2
state hospitals in each province. The State’s justification for the program was to test the
efficacy of the drug, it feared the development of resistance to nevirapine, and finally it had
doubt about the safety of the drug.
Application: ‘The crux of the problem, however, lies elsewhere: what is to happen to those
mothers and their babies who cannot afford access to private health care and do not have
access to the research and training sites? It is not clear on the papers how long it is planned
to take before nevirapine will be made available outside the test sites…What is plain,
though, is that for a protracted period nevirapine would not be supplied at any public health
institutions other than one designated as part of a research site.’
This was the key to the assessment of unreasonableness. It is also important to note that the
court’s holding in Grootboom that reasonableness entails comprehensiveness was the basis

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 for its decision that the government’s policy on the prevention of mother-to-child
transmission of HIV (Mother to Child) was unreasonable.

Khosa Case:
In this case the CC emphasized the interconnectedness of the rights in the Bill of Rights and
held that a factor in ascertaining the reasonableness of a measure is its impact on other
rights. So, conferring benefits of the social security system on citizens only was not
reasonable because it violated the equality rights of permanent residents who, but for their
lack of citizenship would qualify for the benefits under the system. Excluding permanent
residents was unfairly discriminatory against a vulnerable group in society, discrimination
that had a strong stigmatizing effect. Though permanent residents contribute to the welfare
system through the payment of taxes, they were considered ineligible for the benefits of the
system, creating the impression that permanent residents are in some way inferior to
citizens and less worthy of social assistance.

Progressive Realization:

Soobramoney Case:
‘What is apparent from these provisions is that the obligations imposed on the state by ss26
and 27 in regard to access to housing, health care, food, water and social security are
dependent upon the resources available for such purposes, and that the corresponding
rights themselves are limited by reason of the lack of resources. Given this lack of resources
and the significant demands on them that have already been referred to, an unqualified
obligation to meet these needs would not presently be capable of being fulfilled.’
This passage suggests that the positive dimension of the socio-economic rights is ‘realised’
or fulfilled through state action ‘progressively’ or over a period of time.
The fact that realization of the rights can only be achieved progressively does not alter the
obligation on the state to take steps that are within its power immediately and other steps
as soon as possible.
The burden is on the state to show that it is making progress towards the full realization of
the rights.

Within the available resources:

The socio-economic rights are further limited by the qualification that they are only available
to the extent that state resources permit.
As more resources become available, more must be done to fulfil the rights. The onus is on
the State to adequately justify its use of public resources to its citizens.
This is confirmed by the treatment by the CC of the justifications for their policy advanced by
the provincial health authorities in Soombramoney.
HOWEVER, resource scarcity does not relieve states of its duty to fulfil its ‘core minimum
obligations’.
The ‘floor’ of obligations must be met unless the state can show that its resources are
‘demonstrably inadequate’ to allow it to fulfil its duties. The CC declined to set a core
minimum obligation guideline for the right to housing in Grootboom.
It again to declined to set a minimum for the right to health care in the TAC Case.

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Housing:

Access to adequate housing:

This is not an unqualified obligation to provide housing on demand. It is a right of ‘access to’ rather
than a right to adequate housing. In the Grootboom Case this difference was held to be significant:

‘It recognizes that housing entails more than bricks and mortar. It requires available land,
appropriate services such as the provision of water and removal of sewage and the financing of all
these, including the building of the house itself.’

The court also recognized that it was not only the State who is responsible, and that it applies to
people at all economic levels. This basically means that the extent of the state’s duties differs
according to the economic resources available to different sectors of the population. For instance,
those with sufficient economic means already have access to adequate housing.

Reasonable measures to achieve the progressive realization of the right:

Section 26(2) provides that the state ‘must take reasonable legislative and other measures
within its available resources, to achieve the progressive realization of this right.’
Reasonableness provides the yardstick against which measures must be tested.

Protection against unlawful and arbitrary eviction from or demolition of a home:

Section 26(3) constitutionally entrenches a negative right against being arbitrarily evicted or
having ones home demolished. Such actions could only be taken if a court had considered
the relevant circumstances and granted such an order. Evictions’ have been defined as ‘the
permanent or temporary removal against their will of individuals, families and/or
communities from the homes and/or land which they occupy.’
At common law, the procedures in an action for eviction were heavily weighted in favour of
the right of ownership. In the SCA case of Brisley v Drotsky 2002, the court held that
‘relevant circumstances’ for the purposes of s26 (3) are circumstances that are legally
relevant, rather than the personal circumstances of the person facing eviction or the
availability of alternative accommodation. Thus the legislature had to take further steps to
accomplish its goal of preventing homelessness.
Two pieces of statute have subsequently been passed: Extension of Security of Tenure Act
62 of 1997 (ESTA) and Prevention of Illegal Eviction from and Unlawful Occupation of Land
Act 19 of 1998 (PIE Act). Both Acts considerably amend the common law by requiring various
circumstances to be taken into account before an eviction can be ordered.
There were a number of conflicting decision in and around the PIE Act, until the following
approach was favoured by the SCA in the Ndlovo v Ngcobo Case – the phrase could be
interpreted to apply not only to an act of squatting but also to occupation that was initially
lawful but that had subsequently become unlawful.
‘…it cannot be discounted that Parliament, as it said, intended to extend the protection of
PIE to cases of holding over dwellings and the like… This does not imply that the owners
concerned would not be entitled to apply for and obtain eviction orders. It only means that
the procedures of PIE have to be followed.

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Health Care, food, water and social security:

Emergency medical treatment:

This right basically requires that the State is ‘not to refuse ambulance or other emergency
services which are available and not to turn a person away from a hospital which is able to
provide the necessary treatment. This available and able qualification makes it clear that
s27(3) does not create a positive constitutional obligation on the state to ensure that that
emergency medical facilities are made available so that no one in an emergency situation
can be turned away. Section 27(3) is therefore a right not to be arbitrarily excluded from
that which already exists. In the Soombramoney case, the person was trying to claim a right
to ongoing medical treatment, he was not in a sudden medical emergency, and so his
application was rejected.
Section 35(2)(e) contains a right of detained persons to ‘adequate medical treatment’.
Unlike the S27 right, this right is not qualified by express reference to ‘progressive
realization’ and ‘available resources’. Furthermore, the case law has held that the
Constitution does not require ‘optimal medical treatment’, but merely ‘adequate
treatment’. This basically entails being treated the same as the public.

Limitation of Socio-Economic Rights:

The reason why the limitations clause was inapplicable in the TAC Case and Grootboom Case
is, of course, that neither case involved the use of law of general application to infringe
rights. Reasonableness has already been firmly included in the demarcation of these rights.

Remedies:

In most cases of an infringement of the negative aspect of socio-economic rights, the

appropriate remedy will be a declaration of invalidity of the infringing law or conduct. With
regards the positive aspects of Socio-economic rights, two main remedies are used. They are
the structural interdict (which directs a violator to take steps to rectify a violation of rights
under the court’s supervision) and declaratory relief.

Constitutional law notes by Rémy Ngamije, 2010.

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Section 21: International Human Rights
By Jessica Griffiths

Pre-World War 2 protection of individuals under international law was limited, being mostly
concerned with states.

Humanitarian law began to develop in the nineteenth century after the adoption of the Geneva
Convention for the Amelioration of the Condition of the Wounded in Armies. Humanitarian
intervention was recognized as early as the seventeenth century, but was mostly used as a pretext
for colonial intervention.

The League of Nations period saw three important developments in human rights law:

1. The mandates system;

2. The ILO and;
3. The minority treaties designed to protect Eastern European minorities.

Non-intervention was still an axiom in international law, but this was changed by the atrocities of
the Nazi regime.

The Nuremberg Trials

These trials were meant to try Nazi leaders for crimes against humanity, with similar trials happening
in Japan. These trials were criticized for being composed of Allied judges, and because acts that
were not outlawed were classified as crimes.

It led to the creation of international criminal courts, the development of international humanitarian
law and it meant that national leaders could no longer claim immunity from prosecution for acts
allowed by municipal law.

The United Nations Charter

The UN Charter contains many references to human rights, the most important being Article 55,
which obliges the UN to promote “universal respect for, and observance of, human rights and
fundamental freedoms for all without distinction as to race, sex, language, or religion”; and Article
56, in which all members pledge to work towards these ends. The human rights clauses of the
charter have been criticized on four grounds:

a) They are vague and give little indication of the rights protected.
b) Virtually no enforcement machinery is provided for.
c) It is not clear if the clauses create legal obligations for states.
d) They clash with Article 2(7), which proclaims non-intervention.

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South Africa’s racial policies and the human rights clauses of the Charter
Apartheid was on the General Assembly’s agenda from 1946 (due to a complaint from India) to
1994. In 1960, after Sharpeville, the issue was elevated to the Security Council. Apartheid became
the testing ground for the Charter’s battle between domestic non-intervention and human rights.

Early on, South Africa, with the support of many Western Nations, argued that Article 2(7) took
precedence over human rights. As Apartheid became more brutal, most states came to the
conclusion, albeit reluctantly and with qualifications that human rights took precedence. Related to
this was the debate over the legal force of human rights provisions, with South Africa and other
states questioning their legal force. In 1971, the ICJ held that the extension of Apartheid to Namibia
violated the Charter, and that the human rights clauses had legal force.

Universal Declaration of Human Rights

The Universal Declaration contains both first-generation and second-generation rights.

It is only a GA resolution and therefore not legally binding, but has guided the interpretation of
human rights clauses, and greatly aided the development of human rights law.

Some parts of it, as indicated by international opinion and usus, have become international
customary law, such as that of non-discrimination and the prohibition on torture.

The International Covenants

Two international multilateral treaties exist to give effect to the Universal Declaration. Both have
come to be widely accepted.

The International Covenant on Civil and Political Rights (ICCPR)

The ICCPR begins with recognizing the right to self-determination in general terms (art 1). It
recognizes the right to life (art 6 – with an exception for the death penalty), a prohibition on torture
(art 7), slavery (art 8), right to liberty and security of the person (art 9), a fair trial (art 14, which
includes the principle of nullum crimen sine lege except for war crimes), freedom of religion (art 18)
and various other rights.1 It allows for qualified derogation from these rights in a state of
emergency, and is silent on the right to property.

Human Rights Committee

International supervision of the ICCPR is entrusted to the Human Rights Committee. It supervises
the Covenant in three ways:

a) By considering regular reports issued to it by contracting states, and issuing non-obligatory

“general comments”.
b) By mediating, and issuing non-binding reports if necessary, when one contracting state
accuses another of breaking the covenant. This has never been invoked.
c) The First Protocol to the ICCPR permits contracting states to recognize the competence of
the Committee to hear petitions from individuals claiming to have had their rights under the

1 Dugard at page 316-317

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 Covenant violated. The individual must have exhausted all domestic remedies first and the
dispute must not be the subject of any international investigation. The workload of the
Committee has increased greatly of late due to states accepting the First Protocol.

The International Covenant on Economic, Social and Cultural Rights (ICESCR)

The ICESCR deals with second-generation rights.2 These rights differ from the ICCPR in two major
respects:

First, they require availability of resources, and as such Article 2 of the ICESCR provides for
“progressive realization to the maximum of available resources by all appropriate means” rather
than immediate realization.

Second, because of the above, they are less conducive to judicial determination. General Comment
3, however, has stipulated that states have a “minimum core” obligation, which is an obligation to
provide certain minimum standards. If the country pleads that it does not have enough resources to
meet a minimum core obligation, it has to show that it has used all available resources to try to meet
it.

The Committee on Economic, Social and Cultural rights receives reports much like the ICCPR Human
Rights Committee. Many states do not submit, though, and there is not much the Committee can do
to enforce compliance.

An optional protocol has been created, which allows for individuals to complain to the Human Rights
Committee if their rights have been violated (on exhaustion of domestic remedies), allows for party
states to report other party states for violations and for voluntary inquiries into the territories of
states that are allegedly violating their responsibilities.

Non-discrimination
Non-discrimation is without doubt a norm of international customary law. This norm has been
confirmed in several conventions

International Convention on the Elimination of All Forms of Racial Discrimination

This convention obliges all member states to eliminate racial discrimination. It also restricts private
discrimination, allows, in a qualified way, affirmative action and outlaws hate speech.

Supervision is entrusted to the Committee for the Elimination of Racial Discrimination (CERD), which
is substantially similar to the ICCPR HRC, except that provision is made for compulsory interstate
claims, but this has never been used.

Convention on the Elimination of All Forms of Discrimination against Women

(CEDAW)
This convention obliges all states to eliminate discrimination against women. It also allows
affirmative action. Reservations have been made to the convention, especially by Islamic states,
that seem to defeat the purpose of the Convention.

2 Dugard at page 320.

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It is monitored by a committee that considers national reports. An optional protocol exists that
allows the Committee to receive and consider individual petitions of systemic violation of the
Convention.

Convention on the Rights of the Child

This convention asserts the civil, political, economic, social and cultural rights of children.

It is monitored by a committee without any provision for inter-state claims or individual petitions.

Torture
Torture is prohibited by several conventions and international customary law. The major convention
on torture is the 1984 Convention Against Torture. In it, torture is essentially defined as the
infliction of severe pain or suffering for the purposes of extracting information or a confession;
punishment; intimidation or discrimination.

It is first enforced by municipal law, the by a Committee on torture with powers similar to the other
committees.

Third-Generation Rights
These rights include the right to self-determination, the right to a satisfactory environment and,
controversially, the right to development.

The UN Commission on Human Rights

This is a key organ of the UN human rights apparatus, which investigates and reports on human
rights in specific countries, therefore providing a public forum for human rights abuses to be
debated on. This has since been replaced by the Human Rights Council in 2006.

The African Charter on Human and People’s Rights

This charter outlines several first, second and third generation rights, and moved the AU from
focusing purely on self-determination to a more interventionary, human rights view. Its principal
supervisory organ is the African Commission on Human and People’s Rights, which receives
complaints from states, NGOs or individual and issues non-binding recommendations, interprets the
AU statutes. A protocol establishing an African Court of Human Rights has been established, but it
has not operated and is now merging with the AU Court of Justice.

The work of the African commission, has, however, been hindered by:

1. A lack of funding;
2. A lack of infrastructure;
3. Insecurity of tenure of its members;
4. Problems of non-compliance with its recommendations (although a resolution has been
taken stating that their recommendations are binding interpretations of the African
Charter);

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 5. Heavy reliance on foreign aid and workers and;
6. The continued deferral of decisions

International Human Rights Instruments and South African Law

Before 1994, South Africa was not party to any international human rights instruments except the
non-binding (and unincorporated into municipal law) UN Human Rights Charter. Judges mostly did
not use them as an interpretative tool.

Since 1994, South Africa has become a party to, and has ratified, many of the major international
human rights instruments.

The predecessor to section 39(1)(b) was section 35 of the interim constitution, which is relevant
because must constitutional court jurisprudence deals with that section. They have the following
differences:

1. Section 35 uses the word “shall” and 39(1)(b) uses “must” with regard to public international
law, but mean essentially the same thing in the sense that both create an obligation.
2. Section 35 uses the term “have regard to” and section 39(1)(b) uses “consider”, which also
means the same thing.
3. The only big difference is the use of the word “applicable”, which is only used in section 35.

Furthermore, section 39(1) and section 233 ensures that courts will be guided by international
norms in interpretation. In S v Makwanyane, the Constitutional Court held that both binding and
non-binding public international law must be considered for the purposes of interpretation.
Furthermore, the decisions of international tribunals and committees were included in the definition
of public international law. Ultimately therefore, S v Makwanyane defined public international law
very widely.

With regard to the facts of the case, the court held that, unlike in the ICCPR, the right to life is
unqualified. Also, the court noted that the ICCPR states that nothing should be allowed to delay the
abolishment of capital punishment by any state party. Here the Court derived a trend towards
abolishing capital punishment.

Ultimately, however, using international law as an interpretative tool must always be used in a South
African context.

The question of to what degree international treaties are law in the Republic was dealt with in
AZAPO v President (paragraph 27). The plaintiffs argued that the amnesty provisions in the TRC act
violated the 1977 Geneva Protocols, which created a duty to prosecute those guilty of gross human
rights violations.

The Court held a number of things:

First, international law was only relevant as a tool of interpretation.

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Second, it was held that international treaties are only law in the Republic if they have been enacted
into law by parliament, according to section 35 of the interim constitution.

Third, it was held that any treaty that South Africa was a party to before the enactment of the
Constitution can be overridden by legislation, and that international customary law can be
overridden in the same way.

This case has been criticized as a departure from Makwanyane. It must be considered that this was
a very political decision and that the issue of amnesty had been decided long before the Constitution
had enacted.

South African courts have been unwilling to use foreign law as a tool for interpretation. This is
largely been because of the fact that South African law schools were relatively unwilling to teach
international law.

A brief technical aside

If a state signs a treaty, it is simply indicating a willingness to ratify the treaty. Until the treaty has
been ratified, the treaty is not binding.

Socio-economic rights compared to international law

Most of the following cases are dealt with in more detail in other sections. As such, not so much
attention is paid to the content of the rights themselves, except in Mazibuko, as this guy is only in the
Constitutional law from an international human rights perspective section.

With regard to socio-economic rights, courts didn’t use foreign law for the following reasons:

1. First, few other constitutions have socio-economic rights.

2. Second, our constitution’s socio-economic rights are largely based on the provisions of the
ICESCR.

Soobramoney was the first decision on socio-economic rights, but it contained no reference to public
international law. It did refer to foreign law in an Indian case. It was criticized on this point.

Access to housing
In Grootboom, the question was raised as to what extent international law, specifically, the ICESCR
and its third general comment, should guide the Court in interpreting the right of access to housing.
Of note is that the court, while acknowledging that both binding and non-binding international law
must be considered for interpretation, more weight should be given to binding law.

The court rejected the absolute minimum core approach for two reasons, holding that it may only be
relevant to determining reasonableness depending on the facts of the case: first, because the needs
in context to the right of access to housing are extremely diverse and second, because the Court
does not have adequate information to determine the level of minimum core obligations.

The Court then analysed section 26, and noted differences between it and the ICESCR. First, because
the section spells out a right of access to housing, it implies that the state must do more than simply
build houses. It must create conditions where all levels of society, with their diverse needs and

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means, can have access to housing. The state’s obligations are therefore diverse depending on the
needs of different sectors of society.

The state’s obligations are qualified in three ways:

1. In that the state must take “reasonable legislative and other measures”. A measure is
reasonable if it appropriately involves and coordinates all three tiers of government, must
be implemented reasonably and must provide for those whose needs are most urgent. T
2. he right must be “progressively realized”, which means that the state must not, at the very
least, take regressive steps and must, in fact, move forward as effectively as possible (taken
as is from general comment 3).
3. The state must act “within available resources”, which means that the state is not obliged to
act beyond its available resources.

Access to healthcare
Minister of Health v TAC confirmed this judgment for the right to health care. The Court took an
even stronger position. The Court said that it was impossible to give everyone access to even a core
service immediately.

Access to water
Mazibuko general: In this case, two things were at issue:

1. Jozi’s disconnection of unlimited water supply and the installation of prepaid water meters.
2. The 25 litre level of free water per person per day.

High Court judgment: First, the court referred to the various international human rights instruments
(including the ICESCR, its general comments and the African Charter) in interpreting the
government’s obligation to provide water, concluding that

1. The government did have an obligation and;

2. That the minimum sufficient water was 25 litres per person per day, according to WHO
guidelines.

The idea of minimum core was then analyzed.

1. The court held that the Constitutional Court had not rejected minimum core – it had simply
decided not to use it in Grootboom and TAC due to practical difficulties of discerning needs
in those cases.
2. It held that, in the case of water, needs were not prohibitively difficult to ascertain and, as
such, a minimum core standard could be applied to water.

The judge then held that the prepaid water meters were unconstitutional for the following reasons:

1. They discriminated against women who had to travel far to collect the extra water.3
2. They denied access to water, which infringed their dignity.

With regard to the amount of water, the court held the following:

3 A solid one-paragraph discrimination analysis – the mark of a hard-working judge.

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 1. 25 litres was insufficient, and 50 litres was.
2. Jozi had the resources to increase access to water.

Jozi therefore had to supply Phiri Township with 50 litres free per person per day.

Supreme Court of Appeal judgment: The Court asked and answered the following questions:

1. What constitutes sufficient water in terms of section 27(1)?

a. Sufficient water is that which is sufficient for a dignified human existence.
b. The Court held that 42 litres a day is sufficient.
2. Does Jozi have to provide the citizens with this level of water?
a. Its obligation is progressive realisation within available resources.
b. The city had to review its water policy to reach 42 litres.
3. Were the prepaid meters unlawful?
a. The Court held that they were installed in violation of the city’s bylaws.
b. Immediate removal, however, would be wasteful and undesirable.
4. The Court therefore ordered:
a. The city’s water policy has to be reviewed to provide 42 litres per person per day to
Phiri.
b. In the interim, the city has to provide 42 litres per person per day free.
c. The order of unlawfulness with regard to the prepaid water meters was suspended
in order to allow the city to amend its laws to make them lawful.

Constitutional Court judgment:

The Court decided that 27(1) did not delineate a minimum acceptable level of water services, for
two reasons:

1. 27(1) should not be read by itself – it should be read with 27(2) to delineate the scope of the
positive obligation on the state, which is simply to take reasonable legislative and other
measures.
a. Furthermore, what the right requires will vary over time and context. Fixing a
minimum amount might prevent an analysis of context.
2. The Courts should not prescribe on budgetary matters, both for practical and democratic
reasons.

It also expressly rejected the idea of minimum core in South African law.

The following paragraph on socio-economic rights is particularly informative:

“[67] Thus the positive obligations imposed upon government by the social and economic
rights in our Constitution will be enforced by courts in at least the following ways. If
government takes no steps to realise the rights, the courts will require government to take
steps. If government’s adopted measures are unreasonable, the courts will similarly
require that they be reviewed so as to meet the constitutional standard of reasonableness.
From Grootboom, it is clear that a measure will be unreasonable if it makes no provision
for those most desperately in need. If government adopts a policy with unreasonable
limitations or exclusions, as in Treatment Action Campaign No 2, the Court may order that

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 those are removed. Finally, the obligation of progressive realisation imposes a duty upon
government continually to review its policies to ensure that the achievement of the right is
progressively realised.”

The right to political participation compared to international law

In Doctors for Life International v Speaker, the court held that most international human rights
instruments protect both the right to vote and stand for office and the more general right to direct
political participation. Specifically, the court refers to a general comment of the committee of the
ICCPR.

Furthermore, most international human rights instruments stipulate that it is up to individual states
to determine the precise scope of the right to political participation. The Court also held that the
content of these rights will evolve as society changes. Finally, the court held that international law
must be interpreted in a South African context.

Specifically, the Court held that the South African right includes the two subsections mentioned
above. It held that the government has a positive duty to provide for the right to vote and to allow
for public participation in all political processes where reasonable. Public participation includes
public hearings, accepting submissions from the public, summoning people to give evidence,
facilitating public debate and dialogue and by attending sittings of Parliament, but Parliament has
discretion to decide on how these possibilities should be implemented, providing that Parliament
acts reasonably.

Criticism of the human rights movement in general

OK, this reading is not going to come up. I’ve summarised many of the criticisms in this reading
below, so if you want to learn the last 40% of the reading with zingers like “human rights occupy the
field of emancipator possibility”, then be my guest.

Human rights occupy the field of emancipator possibility

First, the claim here is that human rights so dominate the institutional and political oxygen that little
space is available for other, possibly better emancipator instruments. Second, human rights
discourse is often used to criticize other worthy emancipatory projects. Third, good policies not
framed in a human rights paradigm are not implemented. This has the effect of snuffing out worthy
local projects.

Human Rights Views the Problem and the Solution Too Narrowly
First, the human rights discourse tends to spend most of its time on harm done by governments
directly to private actors. This ignores horizontal wrongs or harm done indirectly by governments.
Second, human rights focus on private remedies, even when inappropriate. Third, the human rights
discourse tends to insulate the economy by implicitly legitimizing the existing distribution of wealth
status and power, which, of course, is often part of the problem. Third, focusing on human rights
can become an end in itself, ignoring the wider reaching changes that rights a merely a means to. An
example could be settling for the right to vote as a substitution for genuine political participation.
Fourth, human rights tend to ignore “background” laws and norms that create just as many issues
than a lack of legalized, formal “rights”.

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Human Rights Generalize Too Much
First, human rights discourse actually destroys diversity and distorts a more promising real
experience. Second, it alienates and individual from his genuine, individual life experience. Third, by
focusing on villains and victims, it ignores the troubles of more complex actors and fails to fully
express the experiences of the “villains” and the “victims”. Fourth, it makes advocates
sanctimonious.

Human Rights Particularize Too Much

First, by structuring emancipation as a relationship between the individual and the state, it makes
the state and essential part of the solution, thereby strengthening the state. Second, encouraging
people to imagine themselves as right-holders is likely to decrease the likelihood of compromise
between parties.

Human Rights is Ideological

First, human rights discourse, as a Western product, comes with Western liberal
democratic/capitalist baggage of secularism, alienation and pollution. Second, by focusing on ends
such as law, politics, the public sphere, it ignores the intermediate, more basic levels of politics, the
economy and the private sphere, creating shallow, unworkable solutions. Third, rights discourse
promotes an idealized, an unworkable form of Western ideology.

Human Rights Promises More Than It Can Deliver

First, it promises knowledge, but gives merely a formal list that replaces grappling with realy
complexity. Second, it promises justice, by promising the law as a means to effective compromise
and judges as neutral, non-political arbiters. None of this is actually true. Third, it promises the
existence of a benevolent “world community”, which definitely does not exist. Fourth, it promises
neutral intervention from powers promoting human rights. Finally, it promises that furthering
human rights automatically furthers justice.

Human Rights Promote Violations Rather Than Prevent Them

By treating conventions as ends, human rights treat the symptom rather than the cause.

Constitutional law notes by Rémy Ngamije, 2010.

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