Answer the following questions and then compare your answers with the feedback

below.
Who is entitled to the rights in the Bill of Rights?
(1) Franco Phile, a French soccer player, has a one-year contract to play for a South
African club. Is Franco entitled to the following constitutional rights? Explain
your answers briefly:
(a) the right to life
(b) the right to administrative justice
(c) the right to vote in general elections (3)
(2) When can a juristic person rely on the protection of the Bill of Rights? (3)
More specifically:
(a) Can an insurance company invoke the right to life? (2)
(b) Can a trade union invoke the right to engage in collective bargaining? (2)
(c) Can a close corporation invoke the right of access to information? (2)
(d) Can the SABC invoke the right to freedom of speech? (2)
(e) Can the Gauteng provincial government invoke the right to equality? (2)
(3) ABC Supermarket is charged with the violation of the Liquor Act for selling wine
on a Sunday. In its defence, ABC Supermarket argues that the Act is an unconstitutional
violation of its right to freedom of religion.
(a) Advise ABC Supermarket whether it can lay claim to the right to freedom
of religion. (2)
(b) If ABC Supermarket cannot lay claim to the right to freedom of religion,
can it nevertheless invoke the right to freedom of religion to challenge the
constitutionality of the Act? (2)
(4) Can a juristic person rely on the protection of the Bill of Rights? For instance, can
the SABC invoke the right to life and the right to freedom of expression? (5)
Who is bound by the Bill of Rights?
(5) State whether the following statements are true or false. Give reasons for your
answers.
(NB: CONFINE YOURSELF TO THE APPLICATION OF THE BILL OF RIGHTS. DO
NOT DISCUSS THE MERITS OF THE CASE.)
(a) It is not necessary for the rules of Elite Secondary School (a private school)
to comply with the provisions of the Bill of Rights. (2)
(b) The Department of Education is one of the few state departments not
bound by the Bill of Rights. (2)
(c) The immigration authorities are entitled to deport all illegal immigrants immediately,
because they are not protected by the 1996 Constitution. (2)
(d) The Happy Sunday Liquor Store may trade on Sundays, because it is protected
by section 15 of the 1996 Constitution, which makes provision for
the right to freedom of religion. (2)
(e) Natural and juristic persons are not bound by the right of access to adequate
housing in terms of section 26(1), but are bound by the right of a
person not to be evicted from his/her home without a court order (in terms
of s 26(3)). (2)
STUDY UNIT 2: APPLICATION
(f) The Bill of Rights applies to the conduct of a farm owner who refuses to
provide housing for a group of squatters. (2)
(6) Does the Bill of Rights apply to the following?
(NB: DISCUSS THE APPLICATION OF THE BILL OF RIGHTS ONLY, AND NOT
THE MERITS OF THE CASE. (GIVE REASONS FOR YOUR ANSWERS.)
(a) A decision by Parliament to adopt a new Immigration Act. (2)
(b) A decision by a private school to expel five learners. (2)
(c) An interim interdict issued by the magistrate’s court. (2)
(d) The requirement that only people between the ages of 20 and 40 may apply
for membership of a gymnasium. (2)
(e) A will in terms of which a female descendant is prevented from inheriting
the deceased estate. (2)
(7) Discuss whether a juristic person can rely on the protection of the Bill of Rights
and to what extent. For instance, can Noseweek, an independent newspaper, invoke
the right to life and the right to freedom of expression? (5)
Direct application
(8) What does “the conduct of organs of state” refer to? (4)
(9) Does the Bill of Rights apply to the following? Give reasons for your answers:
(a) an act of parliament (2)
(b) a municipal bylaw (2)
(c) a court order (2)
(d) a traffic officer imposing a fine (2)
(e) a decision by Unisa to expel a student (2)
(f) exercising the president’s power to pardon offenders (2)
(10) When will a provision of the Bill of Rights bind a natural or juristic person, according
to section 8(2)? How should this provision (s 8(2)) be interpreted?
(11) Does the Bill of Rights apply to the following conduct? Give reasons for your
answers.
(a) A guesthouse makes it clear that gay and lesbian couples are not welcome.
(2)
(b) A farm owner refuses to provide housing for a group of squatters. (2)
(c) A private hospital turns away all patients who cannot pay, even in cases of
emergency. (2)
Indirect application
(12) In what circumstances can a court avoid a declaration of constitutional invalidity
by interpreting legislation in conformity with the Constitution? (8)
(13) You are a clerk to Van Leeuwen J, a judge of the High Court. She is presiding
over a case in which the constitutionality of an Act of Parliament is under attack.
The judge asks you to write a brief opinion on the following questions:
(a) What are the differences between a direct and indirect application? (10)
(b) When should a court apply the Bill of Rights directly to legislation? When
should it rather interpret legislation in conformity with the Bill of Rights? (5)
FUR2601/1 17
Study unit 2: Application
18
(14) Van Leeuwen J is also presiding over a case in which it is argued that the common
law of defamation is inconsistent with the Bill of Rights, since it does not
afford adequate protection to freedom of expression. She asks you to write a
brief opinion on the following question:
(a) Are there cases in which a court may simply invalidate a common law rule
for being inconsistent with the Bill of Rights? (4)
FEEDBACK ON ACTIVITY
(1) Here, you merely need to read the relevant provisions of the Bill of Rights. Section
11 reads: “Everyone has the right to life.” Section 33 provides: “Everyone
has the right to administrative action that is lawful, reasonable and procedurally
fair.” Franco is therefore entitled to these rights. However, section 19 (Political
rights) is applicable only to every citizen. As a noncitizen, Franco is not entitled
to this right.
(2) Briefly discuss section 8(4) when answering this question.
(a) By applying section 8(4), it is unlikely that a company can claim the right
to life. This is so because the nature of the right is such that it refers to
human life and does not encompass the existence of a company.
(b) With regard to the nature of the right and the nature of the juristic person,
the answer is obviously “Yes”, because this is the reason why trade
unions exist.
(c) Yes, the nature of the right of access to information is such that it can be
exercised in principle by a juristic person such as a close corporation.
(d) The nature of the right is such that it can be exercised by a juristic person.
Moreover, freedom of expression is central to the activities of the SABC.
The SABC is therefore entitled to this right, even though it is state-owned.
(e) Probably not, because the Gauteng provincial government is an organ of
state and its nature precludes the right to equality.
(3) (a) No, a juristic person such as a supermarket cannot lay claim to freedom
of religion, given the nature of the right and the nature of the juristic person.
(One could argue that a church society, albeit a juristic person, will
indeed be able to claim this right.)
(b) In our view, the answer should be “Yes”. Even though the supermarket is
not entitled to the right to freedom of religion, it would have locus standi,
since it has a sufficient interest in the outcome of the case.