Second Semester Case Law

Question 1

Carmichele v Minister of Safety and Security (Facts)

Answer 1

Paragraphs 33 - 60:
Indirect vertical application of a positive obligation in a dispute governed by common law.
- A man sexually assaults a number of women.
- Gets out on bail and does it again.
- Carmichele is one of these women. She takes the Minister of Safety and Security to court on the grounds that she has various constitutional rights, one of them being the right to safety and security.
- She gets the court to rule that there is a positive obligation on the Minister to act to protect women who have been sexually assaulted by putting away the criminal.
- The common law has been interpreted in a way that protects women’s rights, it has not said that the common law in this situation is unconstitutional. Only that the consequences of it can result in unconstitutional action.
- This is indirect application, as Carmichele has not said that the actions of the criminal were unconstitutional, but rather that she has a constitutional right to safety and security.

Question 2

Indirect Application of s39(2) to the Common Law in Carmichele

Answer 2

There is a constitutional obligation to develop the Common Law
- ‘It needs to be stressed that the obligation of courts to develop the common law, in the context of the section 39(2) objectives, is not purely discretionary. On the contrary, it is implicit in section 39(2) read with section 173 that where the common law as it stands is deficient in promoting the section 39(2) objectives, the courts are under a general obligation to develop it appropriately.

Question 3

What are the demands of s39(2) of the Constitution?

Answer 3

“When interpreting any legislation, and when developing the common law or customary law, every court, tribunal, or forum must promote the spirit, purport and objects of the Bill of Rights”

Question 4

How was s39(2) interpreted by the HC and SCA in Carmichele

Answer 4

HC and SCA asked to develop the CL not on a constitutional basis, but on the basis of applicants unusual claim. When developing the CL, need to have s39(2) in mind, i.e., promote the spirit, purport, and objectives of the BOR.
- in this case however, this was overlooked by both courts.

Question 5

How did the CC need to interpret s39(2) in Carmichele?

Answer 5

First Stage: consider whether existing CL requires development in order to be in line with s39(2)’s objectives.
(requires reconsideration of the common law in light of s39(2)

If so, Second Stage: How this type of development can take place in order to meet objectives of s39(2).

It is within the matrix of this objective normative value system that the common law must be developed.

Question 6

How did the CC need to interpret s39(2) in Carmichele?

Answer 6

First Stage: consider whether existing CL requires development in order to be in line with s39(2)’s objectives.
(requires reconsideration of the common law in light of s39(2)

If so, Second Stage: How this type of development can take place in order to meet objectives of s39(2).

It is within the matrix of this objective normative value system that the common law must be developed.

Question 7

What did the court have to do in National Coalition for Gay and Lesbian Equality when it declared s25(5) of the Aliens Control Act invalid?

Answer 7

s25 was declared invalid because the benefit conferred exclusively on spouses was inconsistent with s9(3) of the CSA because it discriminated against same sex life partners (so discriminated on the grounds of sexual orientation)

Because the court declared s25 invalid, it had to consider two things:
1. Obligation of providing appropriate relief (s(38) of the CSA ) when a right in the BOR is infringed/threatened.
- this needs to be read with s172(1)(b) which requires the order to be just and equitable.
2. The principle of separation of Powers - i.e., court cannot fix the invalidity of s25 in a way that steps on the legislatures toes.

Question 8

What was the remedy chosen in National Coalition for Gay and Lesbian Equality?

Answer 8

There were two potential remedies: Reading-in, or declaring the whole provision unconstitutional.
- the court chose to read-in.

Question 9

What are the requirements for reading-in?

Answer 9

1. Must fix the unconstitutionality
2. Must be as limited as possible
3. Can only be done if the court can find the words to be read-in with with sufficient precision
4. Faithful to legislative scheme
5. Not used when it would have unsupportable budget implications.

Question 10

What did the reading-in look like in National Coalition for Gay and Lesbian Equality?

Answer 10

An appropriate remedy in the present case must vindicate the rights of permanent same-sex life partners to establish a family unit that, while retaining the characteristic features derived from its same-sex nature, receives the same protection and enjoys the same concern from the law and from society generally as do marriages recognised by law…’ para [82]

• ‘Against the background of what has been said above I am satisfied that the constitutional defect in section 25(5) can be cured with sufficient precision by reading in, after the word “spouse”, the following words: “or partner, in a permanent same-sex life partnership,” and that it should indeed be cured in this manner. ….In my view, such a reading in, seen in the light of what has been said above concerning the legislature’s right to fine-tune the section as so extended and other provisions that may be relevant thereto, does not intrude impermissibly upon the domain of the legislature.’ para [86]

Question 11

Christian Education Facts

Answer 11

The Schools Act passed in 1996 prohibits corporal punishment in s 10. The appellant, a religious association, contended that corporal punishment is integral to Christian ethos and that the ‘blanket prohibition’ of its use in schools invades the individual, parental and community rights to freely practice their religion.

Question 12

What was the process taken in Christian Education?

Answer 12

Firstly: were the three requirements for law of general application met?
Secondly: Proportionality analysis, reasonable accommodation.

Question 13

What does s36 of the CSA state?

Answer 13

The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including—

(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; and
(e) less restrictive means to achieve the purpose.
Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.

Question 14

What is a law of general application, and how was it proved in Christian Education?

Answer 14

Law of General Application: a law that applies to everyone equally, not aimed at specific individuals or arbitrary. As stated in s36 of the CSA.

Question 15

What was the nature and scope of the infringement in Christian Education?

Answer 15

Court failed to answer this question. Just stated that there was an infringement without defining the scope or boundaries

Question 16

What were the factors that needed to be weighed up in Christian Education?

Answer 16

Paragraph 31:
- The nature and importance of the right, and the extent to which it was limited
V
- the purpose and importance of the limitation, taking into account less restrictive means (were any others ways of implementing the limitation explored?)

Question 17

What was noted in paragraph 31 of Christian Education about what s36 requires?

Answer 17

Limitations on constitutional rights can pass constitutional muster only if the Court concludes that, considering the nature and importance of the right and the extent to which it is limited, such limitation is justified in relation to the purpose, importance and effect of the provision which results in this limitation, taking into account the availability of less restrictive means to achieve this purpose.

Though there might be special problems attendant on undertaking the limitations analysis in respect of religious practices, the standard to be applied is the nuanced and contextual one required by section 36 and not the rigid one of strict scrutiny.

Question 18

What was the reasonable accommodation consideration in Christian Education?

Answer 18

Was there reasonable accommodation?
- Reasonable accommodation asks the question whether positive measure should have been or could be taken to accommodate the individual.

Were less restrictive means considered?
-Less restrictive means asks whether or not there were other methods that could have been used to restrict the individual less.
- This depends on whether there were less restrictive means available.
-As well as what would the repercussions of acting attempting other means.
-It also considers the other facts of the situation. For example, time pressure.

Question 19

What does the proportionality exercise have to relate to?

Answer 19

The proportionality exercise has to relate to whether the failure to accommodate the appellant’s religious belief and practice by means of the exemption for which the appellant asked, can be accepted as reasonable and justifiable in an open and democratic society based on human dignity, freedom and equality.

Question 20

What is the proportionality analysis done in Christian Education?

Answer 20

Done as part of the s36 Analysis

• Balances the enactment of the legislation with the infringement the legislation has on the rights of an individual.
• Only done once it has been determined that it is a law of general application.

Question 21

How was the proportionality analysis conducted in Christian Education?

Answer 21

• The parents weren’t obliged to make an absolute and strenuous choice between obeying a law of the land or following their conscience.
• They could do both simultaneously.
• What they were prevented from doing is to authorise teachers, acting in their name and on school premises, to fulfil what they regard as their conscientious and biblically-ordained responsibilities for the guidance of their children.
• Similarly, save for this one aspect, the appellant’s schools are not prevented from maintaining their specific Christian ethos.
• When all these factors are weighed together, the scales come down firmly in favour of upholding the generality of the law in the face of the appellant’s claim for a constitutionally compelled exemption.
  The appeal is accordingly dismissed.

Question 22

What does paragraph 35 of Dawood say about Human Dignity in relation to our Constitution?

Answer 22

‘The value of dignity in our Constitutional framework cannot therefore be doubted. The Constitution asserts dignity to contradict our past in which human dignity for black South Africans was routinely and cruelly denied….Human dignity therefore informs constitutional adjudication and interpretation at a range of levels.’

Question 23

How does the Grootboom case involve dignity?

Answer 23

Dignity and Housing:

Para 44: the right of access to adequate housing is entrenched because we value human beings and want to ensure that they are afforded their basic human needs.
- A society must seek to ensure that the basic necessities of life are provided to all if it is to be a society based on human dignity, freedom, and equality.

• To be reasonable, measures can’t leave out the account of the degree and extent of denial of the right they endeavour to realise.
• Those whose needs are the most urgent and whose ability to enjoy all rights therefore is most in peril, must not be ignored by the measures aimed at achieving realisation of the right.
• Furthermore, the Constitution requires that everyone must be treated with care and concern. If the measures, though statistically successful, fail to respond to the needs of those most desperate, they may not pass the test.” (para 44)

Question 24

How does TAC 2 deal with dignity?

Answer 24

Dignity and healthcare:

“… This minimum core might not be easy to define, but includes at least the minimum decencies of life consistent with human dignity. No one should be condemned to a life below the basic level of dignified human existence. The very notion of individual rights presupposes that anyone in that position should be able to obtain relief from a court.” (Para 28)

Question 25

How does Dladla v City of Johannesburg deal with dignity?

Answer 25

“The right to dignity includes the right to family life. This right in turn consists of the right to marry and the right to raise a family. The family separation rule creates a vast chasm – between parents and children, between partners and between siblings – where there should be only intimacy and love.” (para 49)

Question 26

How does Daniels v Scribante deal with dignity?

Answer 26

“… the right to security of tenure. An indispensable pivot to that right is the right to human dignity. There can be no true security of tenure under conditions devoid of human dignity. .” (para 2)

“Take away the home that is the fulcrum of security of tenure, the way of life of an occupier will be dislocated. And that will offend her or his human dignity. So, permitting an occupier living in circumstances as we have here to make improvements to her or his dwelling will serve the twin-purpose of bringing the dwelling to a standard that befits human dignity and averting the indignity that the occupier might suffer as a result of the possible departure.” (para 34)

Question 27

What is Dawood v Minister of Home Affairs about?

Answer 27

Human Right to dignity, “families come in all shapes and sizes”, protecting the family from outside interference (including state)
** when protecting family life, you’re protecting the right to dignity.

Question 28

Dawood and IRAC: the problem/Issue

Answer 28

the immigration rule has the consequence that married people cannot live together

Question 29

Dawood and IRAC: relevant Rules

Answer 29

• Legal definition of marriage [consortium includes right/duty of cohabitation]
• Link marriage to the constitutional right to dignity

Question 30

Dawood and IRAC: Apply the rules in context to the problem

Answer 30

The rule offends the legal definition of marriage and therefore infringes the constitutional right to dignity
- Laws may not infringe constitutional rights
- Therefore the law must be changed

The problem:
- Immigration laws which prevented married couples from living together

Question 31

What is the significance of Dawood?

Answer 31

Stresses the link between marriage and right to inherent human dignity
- Defines marriage (the consortium omnis vitae)
- Stresses the private and public importance of marriage (both to the people (the individuals) and to the state.)

First CC judgment about marriage and human rights
- Unanimous decision of CC
- Extremely influential
- Cited and quoted extensively in case law
- But carefully worded, and perhaps misused in some subsequent judgments?

Question 32

Why is Dawood an important case?

Answer 32

3 reasons:

1. CC gave judgement examining the nature of marriage - what is it and how do we understand it as a legal institution?
2. CC examined the importance of marriage in law and society
3. CC examined the protection of marriage in terms of international HR law, and in terms of CSA

Question 33

What was the conclusion by the court in Dawood?

Answer 33

The Court therefore concluded that the new constitutional text, although it contained no express clause protecting the right to family life, nevertheless met the obligations imposed by international human rights law to protect the rights of persons freely to marry and to raise a family.