Assignment Cover Sheet

Programme Bachelor of Commerce in Law

Module Name Public Law
Assignment Number 1
Surname Kapena
First Name/S Barnabé
Student Number 12241412
Date Submitted 19/10/2023
Postal Address 37 Cromwell Road
Glenwood, 4001
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myregent email address ………......12241412.........................................@myregent.ac.za

E-Mail Barnabekapena57@gmail.com
(alternate email address)

Contact Numbers Cell : 0692745205

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I _____Barnabé_Kapena______________ ID/Passport No.____PRP1274618_____________hereby

confirm that the assignment submitted herein is my own original work.
Date: _____19/10/2023_________
FOR OFFICE USE ONLY
Marks per question (Q)
Q1 Q2 Q3 Q4 Q5 Q6 Q7 Q8 Q9 Q10
1. Limitations of rights are restrictions needed to balance competing or
conflicting rights, or to enable rights to correlate with each other public
objectives.

Where a Bill of Rights doesn’t provide for the limitation of rights

expressively, the courts have developed a criteria for the limitations of
rights. However, most modern Bill of Rights do expressively provide for
this, including the South African Bill of Rights. These provisions contain
general limitation clauses which apply to all the rights in the Bill of Rights
and also specific limitation clauses that only apply to specific rights.

Every limitation clause covers some or all of the following matters:

• The organ of state able to impose the limitation is mentioned

• Specific procedure that have to be followed in the limitation of a right are
described.
• The purpose for the limitation is defined.
• There must be a specific balance between the limitation and the purpose
of the limitation.
• The conditions and circumstances which rights can be limited under can
be defined.

Section 36 of the Constitution is the general limitation clauses in South

Africa. This section states that rights can only be limited in terms of the law
of general application and that these limitations must be reasonable and
justifiable in an open and democratic society based on human dignity,
equally, and freedom.

In the cases of Qwelane v. South African Human Rights Commission

(SAHRC). Qwelane, a journalist, published a homophobic article titled “Call
me names- but gay is not okay”. After receiving 350 complaints about the
article in the grounds that it amounted to hate speech, the SAHRC
approached the Equality Court arguing that Qwelane and the publisher had
violated section 10(1) of the Promotion of Equality and Prevention of Unfair
Discrimination Act, 1999 (PEPUDA), which states that “no person may
publish, propagate, advocate, or communicate words based on one or more
of the prohibited grounds, against any person that could reasonably be
constructed to demonstrate a clear intention to be hurtful; be harmful or to
incite harm; promote or propagate hatred”. The Court ruled that the article
constituted hate speech. Qwelane argued that the provisions of PEPUDA
were unconstitutional , as it infringed on his right to free speech. However,
the court dismissed this application.

I personally agree with the ruling of the Equality Court, despite it being
overturned by the SCA, as Qwelane’s right to freedom of speech did need to
be limited in order to comply with the public objective that is Equality and
human dignity, and one should not be allowed to speak hateful towards any
race, religion, nationality, or any demographic of people.
2. Section 8(1) of the Constitution states that “the Bill of Rights applies to all
law, and binds the legislature, the executive, the judiciary and all organs of
state”.

Section 239 of the Constitution defines organs of state as “any department of

state or administration at the national, provincial or local levels of
government; and any other functionaries institution either exercising a power
or performing a function in terms of the Constitution or Provincial
Constitution; or exercising a public power or performing a public function in
terms of any legislation”. This includes all instances where a public power is
being performed with regards to legislation, whether or not that person or
institution is formally recognized as an organ of state.

Due to the fact that the Bill of Rights binds all organs of state, The Bill,
therefore, applies to all of their actions as well as the results of those actions,
such as legislations, administrative decisions and court decisions.

Every legislation organ is bound by the Bill of Rights whenever they enact,
amend, and repeal legal rules and the Bill applied to all legal rules.

As the Bill of Rights applies to all law. Any legal rule enforced by the state
that the Bill of Rights doesn’t apply to would be inconsistent to the rule of
law, Constitutional supremacy and the entire concept of rights also applies to
legislation, common law, customary law and private law.

Legislative organs are tasked with the duty to uphold the Bill of Rights,
whether or not the Bill of Rights expressly imposes this duty in a given case.
If any right is limited unconstitutionally, the declaration of
unconstitutionality will result in legislation being enacted to rectify the
infringement.
3.1. Procedural fairness is a principle of good administration which requires
fair and sensitive application.

Section 33(1) states that “Everyone has the right to administrative action that
lawful, reasonable, and professionally fair”. Thus the concept of Procedural
fairness is enforced by the Constitution.

The two main components of procedural fairness are a fair hearing, and an
impartial decision-maker. Furthermore, there are also requirements for the
opportunity to be heard, which are that there be proper notice of the intended
action; reasonable and timely notice; personal appearance; legal
representation; evidence and/or cross examination; a public hearing; and that
the other side is properly informed of the considertions which count against
them.

Section 33(1) of the Constitution’s operation was suspended until enacted by

legislation in the Promotion of Administrative Justice Act (PAJA), rendering
Section 33 binding and enforceable.

3.2. The PAJA is a law passed in order to give effect to the right to fair and
just administrative action in the Bill Rights.

The Act defines administrative action as any decision taken, or failed to be

taken, by an organ of state which affected the rights of any person.

The Act states that administrators must follow fair procedures when making
decisions; allow the person whom the decision affects to have their say
before decisions is made; explain the decisions they take with clarity; inform
the person of any internal appeal within the department or that they may
request for the court to review the decision; and inform the person that they
may request for the court to review the decision; and inform the person that
they may request a written reason for the decision.
The PAJA provides all person with the opportunity to tell their side of the
story before any decisions are taken on their rights and allows you to find
out why the decision was made. This ensuring that decisions are taken
properly and enabling persons to challenge a decision which was not taken
under the proper provisions. Therefore protecting the right of all persons.
4. A constitution is a law containing the most important rules of law
connected with the constitutional system of a country. It is generally the
most supreme law in each country, and it has a higher status than other laws.

There are different ways to confer this higher status onto a constitution:
• It can be entrenched, meaning it would be harder to amend it than to
amend ordinary laws.
• The courts may be given the power to declare laws invalid that don’t
correlate with the constitution.
• Special arrangements may be made for a constitution to be adopted,
which are different/more difficult than ordinary laws.
References:

https://constitutionnet.org/sites/default/files/limitations_clauses.pdf

https://www.concourt.org.za/index.php/59-the-bill-of-rights/the-limitation-
clause#:~:text=If%20the%20Bill%20of%20Rights,test%20are%20reasonabl
eness%20and%20proportionality.

https://globalfreedomofexpression.columbia.edu/cases/qwelane-v-south-
african-human-rights-
commission/#:~:text=The%20Court’s%20finding%20that%20the,freedom%
20of%20expression%20i