Structure of Litigation for Const Infringement/Litigation

structure of lit involving const limitation and infringement

one party may allege that a prov is unconst due to it being incompatible with a const right and moves for it to be declared invalid for / in the course of criminal/civili litigation, one party raises a const point that the legislation being relied on by the other is unconstitutional

infringement

alleges that a legislative provision violates a constitutional right, right must be carefully defined

procedural stage

determine when the applicant may approach the court to claim infringement, if the court has jurisdiction, if alleged infringer has duties imposed by the right

substantive stage

determine scope and content of right and if law/conduct infringes on the right and if it does, if it is justifiable as a limitation

remedy stage

An appropriate remedy must be granted where the court finds that the law/conduct unjustifiably infringes on the right

S36(1)

a right in the BOR may only be limited by a LOGA to the extent that such a limitation is reasonable and justifiable in an open and democratic society based on HD, equality and freedom taking into account all relevant factors

S36(1)(a)-(e)

nature of right, nature and extent of limitation, importance of purpose of limitation, relation between limitation and its purpose, less restrictive means to achieve the purpose

LOGA

a legal provision contained in legislation, common law or customary law, a right in the BOR may only be limited ito this

reasonable and justifiable

a proportionality analysis/test must be conducted  where harm caused by the infringement is weighed against the benefits accomplished, if the harms outweigh the benefits, the limitation is illegitimate

S36(1) v (2)

extraconstitutional limitation and intraconst limitation (aside from contemplated in (1) or any other prov in the const, no law may limit any right in the BOR)

s35(5)

evidence obtained in a manner that violates a right in the BOR must be excluded if the admission of such evidence would render the trial unfair or be detrimental to the admin of justice

Applicable provisions

7,8,36,37 (state of emergency can only be declared ito an Act of P), 172, 167, 168 and 169)