Con Law semester 2

Skeleton answers, cases and legislation.

Litigating the Bill of Rights: steps in order

(1) What is the Bill of Rights? s 7(1).

(2) Who can claim the right and who is bound? s 8(2), s 8(4).

(3) Who may bring the case? s 38.

(4) How is it applied?

Directly through s 8(1) vertical; s 8(2)-(3) horizontal) or

indirectly (s 39(2)).

(5) Content and scope of the right:

s 39(1), generous and purposive.

(6) Has the right been limited?

(7) Is the limitation justifiable under s 36?

(8) If not justified, remedy under s 172.

Purpose of the Bill of Rights (s 7(1))

It is a cornerstone of democracy in South Africa and enshrines the rights of all people in the country.

Who can claim rights (s 8(2) and s 8(4))

Natural and juristic persons. A juristic person is entitled to the rights only to the extent required by the nature of the right and the nature of that juristic person (s 8(4)).

Standing to bring a case (s 38)

Anyone alleging that a right has been infringed or threatened may approach a competent court for appropriate relief.

Listed categories:

(a) acting in own interest;

(b) on behalf of someone who cannot act in their own name; (c) as a member of, or in the interest of, a group or class; (d) in the public interest;

(e) an association acting in the interest of its members.

Direct vertical application (s 8(1))

The Bill of Rights applies to all law and binds the legislature, the executive, the judiciary and all organs of state.

Direct horizontal application (s 8(2)-(3))

The Bill of Rights can bind private parties, so courts may require them to respect rights and, where necessary, develop the common law to give effect to those rights. This stops private parties from interfering with the enjoyment of a right.

Indirect application (s 39(2))

When interpreting legislation (and developing the common law or customary law), every court must promote the spirit, purport and objects of the Bill of Rights.

Interpreting the content and scope of a right (s 39(1))

Rights are read generously and purposively, in context. International law must be considered (s 39(1)(b)) and foreign law may be considered (s 39(1)(c)).

Law of general application (Hugo)

For an instruction or decision to count as law, it must be clear, accessible and apply generally, not just to a specific person or event.

Onus in a limitation enquiry (Makwanyane and NICRO)

Makwanyane: the litigant must first show the right is limited, then the respondent bears the onus of proving the limitation is justifiable.

NICRO: the State bears the onus under s 36 and must place real evidence before the court.

Section 36 limitation factors

A right may be limited only by a law of general application, to the extent reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account:

(a) the nature of the right;

(b) the importance of the purpose of the limitation;

(c) the nature and extent of the limitation;

(d) the relation between the limitation and its purpose (rational connection);

(e) less restrictive means to achieve the purpose.

Social-economic rights skeleton: steps in order

(1) Qualified or unqualified right?

(2) What duty is breached: negative (respect) or positive (provide/progressively realise)?

(3) Choose the test: qualified + positive goes to the Grootboom test; every other combination goes to s 36(1) limitation analysis.

(4) Grootboom components: access, reasonableness, progressive realisation, available resources, meaningful engagement.

(5) Minimum core?

(6) Intersecting rights (s 9, s 10, s 11, ubuntu)?

(7) Separation of powers and remedy.

(8) Conclusion.

Qualified social-economic right

A right that is not immediately realisable and is subject to reasonable measures, available resources and progressive realisation.

s 26(1)-(2) adequate housing (Grootboom);

s 27(1)-(2) health care, food, water, social security (TAC);

s 24 environment; s 25 property; s 29(1)(b) further education.

Unqualified social-economic right

A right that is immediately realisable and not subject to those qualifiers.

s 26(3) no arbitrary eviction;

s 27(3) no refusal of emergency medical treatment;

s 28(1)(c) children's nutrition, shelter, health care and social services; s 29(1)(a) basic education;

s 35(2)(e) conditions of detention consistent with human dignity.

Negative duty (duty to respect)

The State is interfering with or removing existing access to a right, so it must refrain from infringing the right or the citizen's exercise of it.

Positive duty (duty to fulfil)

The State has failed to take measures to provide, or progressively realise access to, the right, so it must act to realise the right.

Grootboom test: access

The State must create conditions for access at all economic levels, so policy must account for different income levels.

For those who can pay, the duty is mainly unlocking the system; for those who cannot, development and social assistance programmes matter because they are vulnerable.

Grootboom: housing requires conditions in which people can gain access through institutions and legal frameworks, within available resources and towards progressive realisation.

Grootboom test: reasonableness

Measures must be comprehensive, coherent, properly allocated between spheres of government, adequately resourced, and reasonable in conception and implementation; balanced and flexible, responding to short, medium and long term needs, continuously reviewed, and not excluding a significant segment of society, especially those in desperate need.

Grootboom: a programme with no provision for people in desperate need was unreasonable.

TAC: a policy is unreasonable when rigid, exclusionary, unresponsive to new information or needlessly restrictive. Mazibuko: government must explain its choices, the information considered and its process.

Grootboom test: progressive realisation

The right need not be fully realised immediately but must become accessible to more people over time (a flexibility device).

The State must move as expeditiously and effectively as possible, and deliberately retrogressive measures need careful consideration and full justification.

Mazibuko: policies must be reviewed and revised to ensure progressive achievement.

Grootboom test: available resources

The State must balance both the goal and the means.

Soobramoney: the Court arguably accepted the resource constraint without scrutinising budget priorities enough.

Blue Moonlight: the City cannot simply say it has no budget; it must budget on a correct understanding of its constitutional duties.

Khosa: courts do not simply accept scarcity claims and consider whether the cost impact is large or small.

Grootboom test: meaningful engagement

The State must genuinely engage with people facing eviction, before seeking an eviction order, to consider how the consequences can be alleviated.

Olivia Road: the duty comes from s 26(2); failure to engage means the order may not be granted, but both sides must act reasonably and the municipality may proceed if its efforts at engagement are unsuccessful.

Minimum core (Grootboom, TAC, Mazibuko)

Grootboom: the Court could not determine a minimum core on the information before it.

TAC: minimum core may be relevant to reasonableness but is not a standalone entitlement.

Mazibuko: courts generally will not set a fixed quantitative content, and reasonableness review remains the preferred approach.

Equality skeleton: steps in order

(1) Is the challenge to legislation (s 9) or to conduct or policy not sourced in legislation (PEPUDA, subsidiarity)?

(2) Does the law differentiate on a ground that is not listed or analogous? Apply the s 9(1) rationality test.

(3) Is it a redress measure? Apply s 9(2) and the Van Heerden test.

(4) Is the differentiation on a listed or analogous ground? Apply s 9(3) and the Harksen test.

(5) If unfair, test it against s 36 (including less restrictive means).

Equality is context-dependent (Hugo)

Unfair discrimination depends on context: equal treatment does not always mean identical treatment, and the enquiry focuses on the impact of the discrimination on human dignity, so a classification may be unfair in one context but not in another.

Mere differentiation (s 9(1))

Everyone is equal before the law and has the right to equal protection and benefit of the law. Equality before the law demands justification and therefore rationality.

Apply it where the ground is not listed in s 9(3) and not analogous.

Rationality test (s 9(1))

(1) Is there a legitimate government purpose for the distinction?

(2) Is there a rational connection between the means chosen and the purpose?

(3) If yes, does it nonetheless discriminate unfairly?

Redress measures (s 9(2))

Equality means both equal enjoyment of rights and substantive measures to achieve equality. It imposes a positive duty on organs of state to protect and promote equality. Test the measure with Van Heerden.

Van Heerden test: the three requirements

(1) The measures target persons disadvantaged by unfair discrimination.

(2) They are designed to protect or advance such persons.

(3) They promote the achievement of equality in the long term.

All three must be met (Van Heerden). If a measure fails s 9(2), it can still be saved as fair discrimination under the Harksen test (s 9(3)).

Discrimination (s 9(3) and s 9(5))

The State may not unfairly discriminate, directly or indirectly, against anyone on one or more listed grounds (s 9(3)).

Discrimination on a listed ground is presumed unfair unless shown to be fair (s 9(5)). Mahlangu: discrimination can occur at the intersection of grounds.

Hoffmann: societal prejudice can never justify unfair discrimination.

Harksen test: steps in order

(1) Does the law differentiate between people or categories, and is there a rational connection to a legitimate purpose (s 9(1))?

(2) Does the differentiation amount to discrimination (listed or analogous ground)?

(3) If yes, is it unfair?

(4) If unfair, can it be justified under s 36?

Assessing unfairness

Presumed unfair if on a listed ground (s 9(5)); on an analogous ground the complainant must prove unfairness. Assessed contextually:

(1) the complainant's position in society and past patterns of disadvantage;

(2) the purpose of the provision and whether it aims at a worthy goal;

(3) the severity of the impact on rights and whether it impairs dignity (or is comparably serious).

If unfair, test against s 36 including less restrictive means.

Jordan: majority versus minority

Majority (Ngcobo J): a neutral law with a legitimate purpose and a reasonable explanation is not unfair discrimination just because it affects one group more; the purpose of the law is weighed heavily, so the question is whether the law has good reason.

Minority (O'Regan and Sachs JJ): indirect discrimination is judged by real impact in social context, so group impact and dignity matter more than form or neutral purpose, asking what the law does to the group in practice.

PEPUDA skeleton: steps in order

(1) Legislation (s 9) or conduct/policy (PEPUDA, subsidiarity)?

(2) Is there discrimination (s 1)?

(3) On which prohibited ground: listed or analogous?

(4) Is it unfair: burden of proof (s 13).

(5) Fairness enquiry (s 14), including reasonable accommodation.

(6) Hate speech or harassment instead? Then s 14 does not apply (s 15).

(7) Remedy (s 21).

PEPUDA s 1: prohibited grounds

(a) Listed: race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, birth and HIV/AIDS status.

(b) Analogous: any other ground where discrimination (i) causes or perpetuates systemic disadvantage, (ii) undermines human dignity, or (iii) adversely affects equal enjoyment of rights and freedoms in a serious manner comparable to a ground.

Note: HIV/AIDS status is listed in PEPUDA but is an analogous ground under s 9(3) of the Constitution (Hoffmann).

PEPUDA s 7: race

Subject to s 6, no person may unfairly discriminate on the ground of race, including: (a) propaganda or ideas propounding racial superiority or inferiority, including incitement to racial violence;

(b) activity intended to promote, or having the effect of promoting, exclusivity based on race;

(c) exclusion under a seemingly legitimate rule or practice actually aimed at maintaining exclusive control by a race group;

(d) providing inferior services to a racial group;

(e) denying access to opportunities or failing to take steps to reasonably accommodate.

PEPUDA s 8: gender

Subject to s 6, no person may unfairly discriminate on the ground of gender, including:

(a) gender-based violence;

(b) female genital mutilation;

(c) preventing women from inheriting family property;

(d) practices (including traditional, customary or religious) that impair the dignity of women or the girl child;

(e) limiting women's access to land rights, finance and resources;

(f) pregnancy discrimination;

(g) limiting women's access to social services (health, education, social security);

(h) denying opportunities or failing to reasonably accommodate;

(i) systemic inequality of access to opportunities from the sexual division of labour.

PEPUDA s 9: disability

Subject to s 6, no person may unfairly discriminate on the ground of disability, including:

(a) denying or removing any supporting or enabling facility necessary for functioning in society;

(b) contravening SABS codes or regulations on environmental accessibility;

(c) failing to eliminate obstacles that unfairly limit equal opportunities or failing to reasonably accommodate.

PEPUDA s 10: hate speech

Subject to the s 12 proviso.

No person may publish, propagate, advocate or communicate words based on one or more prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to be harmful or to incite harm AND to promote or propagate hatred.

s 10(2): the court may refer the case to the Director of Public Prosecutions. (After Qwelane, "hurtful" was removed and the limbs are read together; the section was then amended in 2024 to this form.)

PEPUDA s 11: harassment

No person may subject any person to harassment.

Harassment (s 1) is unwanted conduct which is persistent or serious and demeans, humiliates or creates a hostile or intimidating environment, or is calculated to induce submission by actual or threatened adverse consequences, and which is related to (a) sex, gender or sexual orientation or

(b) membership or presumed membership of a group identified by a prohibited ground.

PEPUDA s 12: dissemination of discriminatory information

No person may (a) disseminate or broadcast any information, or (b) publish or display any advertisement or notice, that could reasonably be construed to demonstrate a clear intention to unfairly discriminate.

Proviso: bona fide artistic creativity, academic and scientific inquiry, fair and accurate reporting in the public interest, or publication consistent with s 16 of the Constitution is not precluded.

PEPUDA s 13: burden of proof

(1) If the complainant makes out a prima facie case of discrimination, the respondent must prove either that the discrimination did not take place as alleged or that the conduct is not based on a prohibited ground.

(2) If discrimination did take place:

(a) on a listed ground, it is unfair unless the respondent proves it is fair;

(b) on an analogous ground, it is unfair if one of the conditions is established, unless the respondent proves it is fair.

PEPUDA s 14(1): affirmative action

It is not unfair discrimination to take measures designed to protect or advance persons or categories of persons disadvantaged by unfair discrimination, or the members of such groups.

PEPUDA s 14(2): what the court must consider

In deciding whether the respondent has proved the discrimination fair, the court must take into account

(a) the context;

(b) the factors in s 14(3);

(c) whether the discrimination reasonably and justifiably differentiates between persons according to objectively determinable criteria, intrinsic to the activity concerned.

PEPUDA s 14(3): fairness factors (a) to (i)

(a) whether it impairs or is likely to impair human dignity;

(b) impact or likely impact on the complainant;

(c) position of the complainant in society and patterns of disadvantage;

(d) nature and extent of the discrimination;

(e) whether it is systemic;

(f) whether it has a legitimate purpose;

(g) whether and to what extent it achieves its purpose;

(h) whether there are less restrictive and less disadvantageous means;

(i) whether the respondent took reasonable steps to address the disadvantage or accommodate diversity.

Memory aid: Dignity, Impact, Position, Nature, Systemic, Legitimate purpose, Achieves purpose, Less restrictive, Reasonable steps.

PEPUDA s 15

In cases of hate speech and harassment, s 14 (the fairness determination) does not apply.

Reasonable accommodation

May be required to prevent unfair impact where a rule is neutral on its face and serves a valuable purpose, but has a marginalising effect.

Particularly in localised contexts where a reasonable balance between conflicting interests is easier to strike.

Pillay: there is sometimes a duty to reasonably accommodate individuals, even at additional hardship or expense, to fulfil this positive duty.

PEPUDA ss 16 and 20: equality courts and who may sue

Equality courts are High Court divisions and designated magistrates' courts (s 16). Proceedings may be instituted by

(a) a person in their own interest;

(b) on behalf of another who cannot act in their own name;

(c) as a member of or in the interest of a group or class;

(d) in the public interest;

(e) an association in the interests of its members;

(f) the SAHRC or the Commission for Gender Equality (s 20).

PEPUDA s 21: equality court remedies

After an inquiry, the court may make an appropriate order including:

(a) interim order;

(b) declaratory order;

(c) settlement made an order of court;

(d) damages for financial loss, impairment of dignity, pain and suffering or emotional and psychological suffering;

(e) damages paid to an appropriate body;

(f) order restraining the practice or directing steps to stop it …

Freedom of expression skeleton: steps in order

(1) Is it expression (s 16(1))?

(2) Is it excluded from protection (s 16(2))?

(3) Is there a law of general application that limits it, and is the limitation justified under s 36?

(4) If hate speech, apply the PEPUDA s 10 elements.

(5) Is s 10 itself constitutional?

(6) Remedy (severance, reading in or down, suspension, declaration of invalidity).

Freedom of expression (s 16(1))

Very wide and goes beyond speech: includes offensive, shocking and disturbing speech and conduct, and both the right to impart and to receive information (Islamic Unity).

SANDU: it lies at the heart of democracy as part of a web of mutually supporting rights.

Expression excluded from protection (s 16(2))

The right does not extend to

(a) propaganda for war;

(b) incitement of imminent violence;

(c) advocacy of hatred based on race, ethnicity, gender or religion that constitutes incitement to cause harm.

Expression within s 16(2) is unprotected and cannot be justified under s 36.

Islamic Unity: such expression can impair dignity and cause harm, and the State has a special interest in curbing it to build a non-racial, non-sexist society.

Hate speech under PEPUDA s 10: steps in order

(1) Is there speech?

(2) Was it communicated?

(3) On a listed or analogous ground?

(4) Against any person?

(5) Does it fail the reasonable construction test?

(6) Is it harmful?

(7) AND does it incite harm or propagate hatred?

Check the s 12 bona fide proviso. Hate speech is not subject to the s 14 fairness enquiry (s 15).

Hate speech element: speech and communication

Speech can be verbal or non-verbal, including a broad range of expression

(Nelson Mandela Foundation: gratuitous displays can be hate speech, harassment and unfair discrimination on race).

It must be communicated to at least one other person or the public; private communication is excluded (privacy).

Hate speech element: ground and target

The expression must be based on one or more prohibited grounds or analogous grounds and be directed at any person or group.

Reasonable construction test

Would a reasonable person with common knowledge and skill understand the expression as demonstrating a clear intention to incite harm and promote hatred? EFF: it is an objective test that considers context, tone, language and circumstances.

Hate speech element: harm

The expression must demonstrate a clear intention to be harmful or to incite harm, physically or psychologically.

It must have the potential to impact a person's dignity and wellbeing, so consider the relative vulnerability of the person targeted. No causal link to actual harm is required.

Hate speech element: incite harm and propagate hatred

The expression must demonstrate a clear intention to incite harm or promote hatred. Consider the speaker's position in society, the context, and the likely impact of the speech.

Dignity in the Constitution

It is a founding value (s 1), a right (s 10), a value that guides interpretation (s 39(1)(a)) and a standard in the limitations clause (s 36: open and democratic society based on human dignity, equality and freedom).

Makwanyane: dignity and life are the foundation and source of other rights.

Makwanyane (dignity, ubuntu, limitation)

Held: dignity and life are foundational rights; the death penalty is cruel, inhuman and degrading; ubuntu (Langa and Mokgoro JJ) supports respect for humanity and not retribution; and it set out the s 36 approach

Dawood (dignity, family life, discretion)

Court held that dignity implicitly protects the right to family life and marriage.

The Aliens Control Act provisions forced foreign spouses of South Africans to apply for permits and gave officials a broad, unguided discretion over whether they could stay, which limited dignity and was not justified. Result: provisions declared invalid.

Hugo (dignity, fairness, equality)

A Presidential Act remitted sentences for mothers of children under 12 but not fathers.

Held (majority): discrimination on a listed ground, but not unfair because the benefit went to a vulnerable group and did not impair the fathers' dignity.

Significance: unfairness is tested by impact on dignity

Mahlangu v Minister of Labour (intersectional discrimination)

Domestic workers were excluded from the COIDA definition of employee.

Held: unfair discrimination at the intersection of race, sex and class will render a provision unconstitutional. Remedy: reading in.

Ubuntu

The idea that a person is a person through other persons (umuntu ngumuntu ngabantu): humaneness, compassion, solidarity and social interdependence. It is not mentioned expressly in the 1996 Constitution (it appears in the interim Constitution's postamble) but courts treat it as an underlying constitutional value.

Ubuntu in cases

Makwanyane (Langa and Mokgoro JJ): ubuntu points away from the death penalty.

Various Occupiers (Sachs J): ubuntu suffuses the constitutional order and courts must infuse grace and compassion into eviction law.

Dikoko: ubuntu favours restorative remedies (apology, reconciliation) over punitive damages.

Declaration of invalidity (s 172(1)(a))

A court deciding a constitutional matter must declare any law or conduct inconsistent with the Constitution invalid to the extent of the inconsistency.

An order of invalidity of an Act of Parliament made by the SCA or High Court has no force unless confirmed by the Constitutional Court (s 172(2)(a)).

Severance

The court strikes out the offending words or provisions and leaves the rest of the law intact, as long as what remains still makes sense

(e.g. National Coalition for Gay and Lesbian Equality v Minister of Justice).

Reading down

The court interprets a provision narrowly to bring it within constitutional limits instead of invalidating it.

Only available where the provision is reasonably capable of the consistent meaning (s 39(2)).

Reading in

The court adds words to a provision to cure the unconstitutionality.

National Coalition for Gay and Lesbian Equality v Minister of Home Affairs (extending spousal benefits to same-sex partners);

Khosa (adding permanent residents);

Mahlangu (including domestic workers).

Constitutional damages (appropriate relief, s 38)

Courts may grant appropriate relief, which can include damages.

Mandatory orders and structural supervision

The court orders the State to take specific steps and may supervise compliance.

Grootboom: devise, fund, implement and supervise a reasonable housing programme.

TAC: mandatory order did not breach separation of powers.

Olivia Road: order to engage meaningfully.