TOPIC 1: SOCIAL JUSTICE, ACCESS TO JUSTICE & CONSTITUTIONAL ANCHORS

CONSTITUTIONAL ANCHORS: Where is social justice anchored in the Constitution, and how is it defined in South African law?

• Statutory Anchor: Explicitly anchored in the Preamble to the Constitution of the Republic of South Africa, 1996 ("Establish a society based on democratic values, social justice and fundamental human rights").

• Operational Definition: Rooted in Ubuntu, social justice is a value system requiring positive state action to achieve a minimum floor of basic human entitlements, including dignity, substantive equality, and access to justice.

KEY CONSTITUTIONAL SECTIONS: Which specific sections of the Constitution empower courts and citizens to enforce social justice?

• Section 1: Founding values of human dignity, equality, and the rule of law.

• Section 7(2): Mandatory duty on the State to respect, protect, promote, and fulfil the rights in the Bill of Rights.

• Section 9: Substantive equality and non-discrimination.

• Section 34: Right to have justiciable disputes resolved in a fair public hearing before a court or independent tribunal.

• Section 38: Broadened legal standing (locus standi) allowing public interest litigation.

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DEVELOPMENT OF COMMON LAW (CARMICHELE): What landmark case obligES courts to develop the common law to protect citizens from violent crime?

• Primary Case Authority: Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC).

• Under Section 39(2) of the Constitution of the Republic of South Africa, 1996, courts have an active duty to develop common-law delictual principles to align with the Bill of Rights.

CULTURE OF JUSTIFICATION: Why did the Constitutional Court hold the State liable in Carmichele v Minister of Safety and Security?

• Positive Constitutional Duty: The State and SAPS owe a positive constitutional duty under Section 7(2) and Section 12(1)(c) of the Constitution of the Republic of South Africa, 1996 to protect women and vulnerable citizens from violent crime.

• Wrongfulness Refined: Failing to oppose bail for a dangerous sexual offender constitutes wrongful state inaction, creating delictual liability for subsequent harm caused to citizens.

PUBLIC INTEREST COSTS (BIOWATCH): What leading Constitutional Court case governs legal cost awards in constitutional litigation against the State?

• Primary Case Authority: Biowatch Trust v Registrar Genetic Resources 2009 (6) SA 232 (CC).

CULTURE OF JUSTIFICATION: What is the Biowatch cost rule, and why does it protect private litigants suing the State?

• The Rule: In constitutional litigation between a private party and an organ of state:

  1. If the private party wins, they ordinarily recover their full costs from the State.

  2. If the private party loses, they should not be ordered to pay the State's costs.

• Policy Rationale: Prevents a "chilling effect" on public interest litigation, ensuring citizens are not deterred from challenging unconstitutional state action out of fear of adverse cost orders.