bill of rights topic 1

What is the Bill of Rights in South Africa?

A super shield for human dignity and transformation that protects rights and promotes equality for everyone in the country.

Who can claim rights under the Bill of Rights?

'Everyone' can claim most rights, including non-citizens, but some rights are limited l) « to citizens, children, or detained individuals.

What are the three stages of a rights case in the Bill of Rights litigation?

1. Application Stage: Determining who can go to court and who must obey the right. 2. Limitation Stage: Assessing if there is a right violation and if it can be justified. 3. Remedies Stage: Identifying how the court should help.

What does Section 7 of the Bill of Rights state?

It outlines the state's duty to respect, protect, promote, and fulfill rights.

What is the purpose of Section 36 in the Bill of Rights?

It specifies the limitation of rights, detailing when and how rights can be limited.

What is the significance of Section 38 in the Bill of Rights?

It defines who can go to court, establishing the concept of standing.

What are civil and political rights?

Rights that protect individuals from government abuse, such as equality, fair trial, and voting

What are social and economic rights?

Rights that require government assistance, including housing, education, and health.

What are the three generations of rights?

Ist: Civil & political (blue rights'), 2nd: Social & economic (red rights), 3rd:

Environmental and development (green rights').

What does the Bill of Rights say about the hierarchy of rights?

There is no hierarchy; all rights are important and support each other.

What is the direct vertical application of the Bill of Rights?

It binds the legislature, executive, judiciary, and all organs of state, as outlined in Section 8(1).

What is the difference between direct and indirect application of the Bill of Rights?

Direct application overrides the law in case of conflict, while indirect application involves interpreting the law to align with the Bill of Rights.

What is the horizontal application of the Bill of Rights?

It allows the Bill of Rights to bind private individuals or companies in certain circumstances, as per Section 8(2).

What does Section 39(2) of the Bill of Rights require courts to do?

Courts must promote the spirit, purport, and objects of the Bill of Rights when interpreting any law.

What is the role of courts in developing common law and customary law according to the Bill of Rights?

Courts must develop these laws to align with the Bill of Rights and protect individual rights.

What is required for someone to have standing to enforce rights?

They must have a 'sufficient interest,' meaning a real, direct interest in the case.

What is an example of a case where standing was important?

Giant Concerts CC v Rinaldo Investments, which emphasized the need for a real, direct interest.

Can companies claim rights under the Bill of Rights?

Yes, but only if the right fits their purpose, such as freedom of expression for media companies.

What does Section 8(1) of the Bill of Rights state about the application of rights?

It states that the Bill of Rights applies to all law and binds all organs of state.

What is an example of a case that illustrates the direct horizontal application of the Bill of Rights?

Khumalo v Holomisa, where freedom of expression was applied between private individuals.

What does the Bill of Rights say about the protection of rights during emergencies?

Section 37 allows for the suspension of rights in emergencies.

What is the significance of the case Carmichele v

Minister of Safety and Security?

It illustrates that courts must develop the law to ensure it protects rights.

What is the key takeaway regarding the Bill of Rights?

It is broad and powerful, applying to various situations, with both individuals and companies able to claim rights.

What is the role of the courts in the remedies stage of a rights case?

The courts determine how to fix a violation, such as canceling a law or ordering compensation.

What is the importance of the case South African National Defence Union v Minister of Defence?

It established that soldiers are considered 'workers' and can join unions.

What does it mean for rights to be limited?

Rights can be restricted under certain circumstances, such as for public safety.

What is the purpose of Section 36 of the Bill of Rights in South Africa?

It serves as a 'safety lock' that allows rights to be limited under strict conditions.

What must the court

determine when a law limits a right?

The court must ask if the limitation is justified according to Section 36.

Why is the limitation clause significant in South Africa?

Due to the country's history of colonialism and apartheid, every limitation is taken seriously.

What approach does South Africa use for limiting rights?

A general limitation clause, which is one rule for all rights.

What are the three options for limiting rights mentioned in the notes?

1. No limitation clause (like the US) 2. Right-specific limits (like Europe) 3. General limitation clause (like Canada).

What inspired South Africa's old system of rights limitation?

The old system was inspired by Canada and Germany.

What is the Canadian 'Oakes test'?

It has three steps: 1. The law must be rationally connected to its goal. 2. It should limit the right as little as possible. 3. The benefits must outweigh the harm.