Chapter 7 ( Bill of Rights )

In what chapter of the constitution is the Bill or Rights set out in?

Chapter 2

How many sections does the bill of rights contain.

33

What section set out the manner in which the Bill of rights operates

Sections 7-8 and 36 → 39

What are section 7→8 and 36 → 39 known as

They are known as substantive provisions.

What do the other 27 sections in the Bill of Rights do.

They list the protected rights themselves ( 9 → 35 ).

What is section 9 → 35 known as.

They are known as substantive provisions.

What are the three stages into which an issue is broken up into.

Procedural stage, substantive stage, remedies stage.

What happens during the Procedural stage.

The court has to answer questions. Mainly “Who is entitled to claim the fundamental right in question? “ and “Who is bound by the fundamental right in question. “

What happens during the substantive stage.

The court has to answer questions “ Does the law or conduct infringe the fundamental right in question? “ and “ If it does, is the infringement justifiable. “

What happens during the remedy stage?

The court has to decide on the most appropriate remedy, the court will only do this if the court has found the right in question has been unjustifiable infringed upon.

Who can claim the rights in the Bill of Rights.

Section 9(1) provides that “ Everyone is equal before the law and has the right to equal protection and benefit of the law “. Section 11 states that “ Everyone has the right to life. “ Section 13 "states that “ no one may be subjected to slavery, servitude and forced labor “.

Are the rights in the bill of rights only able to be called upon by South African citizens.

No, any natural person physically present in South Africa, irrespective if they are a citizen or not and whether they are lawfully here or not.

What are some rights that protect a smaller category of person tough. Please list section 19(1)(a)

Every citizen is free to make political choices, which includes the right to form a political party.

What are some rights that protect a smaller category of person tough. Please list section 23(2)(a)

Every worker has the right to form and join a trade union.

What are some rights that protect a smaller category of person tough. Please list section 28(1)(a)

Every child has the right to a name and a nationality from birth.

What section of the constitution is applicable to a juristic person?

Section 8(4)

What are the abilities afforded to a a juristic person formed by a natural person

If it was created to help them exercise their human rights, it may be entitled to claim certain rights. EG Church created to express freedom of religion.

When can’t a juristic person claim from the Bill of Rights

If it was not created to help humans exercise rights. Such as governments and the President acting in a professional capacity. They are bound by the bill of rights.

Who is the bill of rights always binding too?

The state.

What are the two types of application for the bill

Direct and indirect.

What happens when the Bill of Rights is applied directly.

It is to determine whether the ordinary rules of law, legislation or common law are consistent with the Bill of rights. If not the Bill of Rights overrides ordinary rules of law. It also generates it’s own special set of remedies.

What happens when the bill of rights is applied indirectly.

It is used to determine if ordinary rules of law promote the values of the Bill of Rights. If they do not, is used to develop the rules and remedies the ordinary law. It doesn’t override.

What are the two types of application for the Bill of Rights.

Vertical and Horizontal.

What is the vertical application of the Bill of RIghts.

It confers the rights of private persons and imposes obligations on the state to respect, protect and promote the rights in the Bill of Rights.

What happens when the Bill of rights is applied vertically.

Only the state is bound by the Bill of Rights.

What happens when the bill of rights is applied horizontally.

It confers both rights and obligations on private persons to respect the Bill of Rights, at least in certain circumstances.

What is it called when there is a legal dispute involving a vertical application of the Bill of Rights.

The bill of rights may be directly applied to a legal dispute only if one of the parties to that dispute the state. This is called a vertical dispute.

Who is bound by the Bill of Rights in a horizontal application of the Bill of rights.

Both the state and private persons.

When can the Bill of Rights be applied in horizontal applications.

Even if both parties in the dispute are private persons.

What is a dispute called when neither of the parties are the state

A horizontal dispute.

Which sections govern the vertical application and horizontal applications of the bill of rights in South Africa.

Section 8(1) for vertical and Section 8(2) for horizontal.

What is the important difference between section 8(1) and section 8(2)

8(1) is unqualified and 8(2) is qualified.

What is the clause that stipulates if the Bill of Rights is applicable in a horizontal dispute.

if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right.

What did the CC conclude with reference to the Juma Musjid Primary School v Essay NO case?

Section 8(2) may not be interpreted in a way that benefits a private person, it may be interpreted in a way that does impose at least some negative socio-economic obligations and to conclude what that consequence may be the courts must consider the “intensity of the constitutional right in question. “ and the extent to which it was invaded by persons other then the state.

Which section govern the indirect application of the Bill of Rights in both vertical and horizontal applications.

Section 39(2).

According to the slides what happens in the Procedural stage.

Standing (locus standi) (section 38
Constitution) Who may claim the right / who is the bearer of the right? Who is bound by the right?

According to the slides what happens in the substantive stage.

Has a right been infringed? Is the infringement justifiable?

According to the slides what happens in the Remedial stage

What is the most appropriate remedy (if the infringement was not justifiable)

According to the powerpoint what happen with the Direct application of the powerpoint.

Striking down legislation as unconstitutional. Striking down common law / customary law as unconstitutional

According to the power point what happens,

Develop the common law / customary law to
conform to the Constitution,Section 39(2)
Eg Masiya judgment (textbook p183)

According to the powerpoint what happens when there is a vertical application of the bill of rights.

Section 8(1), State is bound by the BoR

According to the powerpoint what happens when there is a horizontal application of the Bill of Rights.

Section 8(2) and 8(3) Private persons bound by the BoR

Section 38 regulates the conditions at which a person can be perceived as fit to stand ( locus standii ) what are these conditions

Anyone acting in own interest, Representative, class or group member, public interest litigant, association for it’s members.