Unit 3 Flashcards
(15 cards)
1
Q
Define human rights (10)
A
Claims individuals and/or groups of individuals have
from a normative base,
which claims are for the protection, maintenance and furtherance of the basic and fundamental interests of such individuals and/or groups.
Human rights have the following characteristics -
1. They are judicially enforceable
2. They are universal
3. They are not dependent on the recognition thereof
4. They place obligations on individuals and state authorities
5. They set minimum standards for social government practices
2
Q
Name 8 points related to Weston’s article on ‘the development of human rights theory’
A
- Newness of ‘human rights’
- Stoics - natural law
- Natural law as natural rights in the 17th and 18th C
- The Enlightenment and human reason
- John Locke
- Human rights as opposition to political absolutism
- The different criticism against natural rights (Mill, Von Savigny)
- World War II and the emphasis of human rights
3
Q
Name 8 points related to Weston’s article on views on the meaning of human rights’
A
- Difficulty in defining human rights
- General characteristics
- Group
- Fundamental claims
- Natural law
- Limitations of rights / Enlightenment aspect
- Universality
- Criticism
4
Q
What is (the right to) human dignity? (6)
A
- Section 10 of the C
- Though we can be certain of the pivotal importance of human dignity in the C, we can be less certain of the meaning of the concept
- The CC has not ventured a comprehensive definition of human dignity
- The constitutional protection of dignity requires us to acknowledge the value and worth of all individuals as members of society
- Human dignity is the source of a person’s innate rights to freedom and to physical integrity, from which a number of rights flow.
- It is a value that informs the interpretation of possibly all other fundamental rights and that is of central significance in the limitations enquiry.
5
Q
Name 10 points of note from Schachter’s article on Human Dignity
A
- Human dignity in international conventions
- Inherency of human dignity
- Inherency in a political sense
- Inherency in a psychological sense
- Acceptance of identity which is specifically directed to the person
- Physical needs
- Substantive equality
- Origin and application of rights
- Group rights
- Application of human rights outside of the law
6
Q
Who are the bearers of human rights?
A
- Natural persons
- Juristic persons
7
Q
Name 6 exceptions to when human rights applies to literally everyone
A
- C refers to “everyone” and “no one”, which has to be interpreted as widely as possible.
- Due to the fundamental universal nature if human rights it is applicable to literally everyone (not just citizens)
- The only exceptions are -
a. Sec 19 allows political rights to citizens only, and the right to vote to adults only
b. Sec 23(2) allows employees certain rights, while sec 23(3) allows employers certain rights; and sec 23(4) allows trade unions certain rights
c. Sec 20 allows citizens not to be deprived of citizenship, and sec 22 allows citizens the right to freedom of trade, career, and profession
d. Sec 28 provides for children’s rights
e. Ss 35(1), (2) and (3) are limited to arrested, detained and accused persons
8
Q
Discuss a juristic person as a bearer of human rights
A
- Sec 8(4) determines that juristic persons can claim human rights if the nature of the right and the nature of the entity permits
- To qualify, a group or institution must comply with the following requirements -
a. Internal unity, which implies that the group must possess internal structures of authority that can act in a peremptory manner within the organisation, as well as possess an internal legal order binding the institution or group into unity
b. Independence, which implies that the institution or group continues to exist in spite of the coming and going of individual members
9
Q
Why does the interpretation of the C play an important role? (5)
A
- The C is the highest law
- The C contains the most fundamental values of society
- The C contains vague clauses
- The C governs political issues
- The fact that the state is bound by the C
10
Q
Briefly explain how important the ‘textual approach’ is regarding the interpretation of the BoR (5)
A
- The obvious starting point for determining the meaning of a provision of the BoR is the text itself
- Constitutional disputes can rarely be resolved with reference to the literal meaning of the provisions alone
- The C is abstract and open-ended in much of its formulation
- The C’s interpretation involves more than the determination of the literal meaning of particular provisions
- A literal meanign will be an acceptable interpretation of a provision only if it accords with a “generous” and “purposive” interpretation that “gives expression to the underlying values of the C”
11
Q
Explain in detail the purposive approach of interpretation
A
- Purposive interpretation is aimed at teasing out the core values/interests/purposes that underpin the listed fundamental rights in an open and democratic society based on human dignity, equality and freedom and then to prefer the interpretation of a provision that best supports and protects those values.
- Once we have identified the purpose of a right in the BoR we will be able to determine the scope of the right.
- This approach inevitably requires a value judgment to be made about which purposes are important and protected by the C and which are not.
- While the values referred to have to be objectively determined by reference to norms, they may not be derived from or equated with public opinion.
- If public opinion were to be decisive, the protection of rights could as well be left to parliament, which after all has a mandate and is answerable to the public.
- Protection of minorities is another reason why public opinion cannot be relied upon.
12
Q
Briefly explain the generous approach of interpretation (2)
A
- Refers to drawing the boundaries of rights as wifely as the language in which they have been drafted and the context in which they are used makes possible
- This may lead to a strained interpretation of the text, and may also run counter to the court’s commitment to purposive interpretation.
13
Q
Explain the contextual interpretation in the narrower, textual approach (7)
A
- “Context” has a narrower and a wider signification.
- Wider sense of context: The historical an political setting of the C
- Narrower sense: The context provided by the constitutional text itself (the textual context)
- In essence it means understanding of a certain text in the C by looking at other texts in the C that shed some light on it
- S v Makwanyane - the court treated the right to life, right to equality and the right to dignity as together giving meaning to the prohibition of cruel, inhuman treatment
- In Soobrameony - the court held that it could not impose an obligation on the state that would be inconsistent with other provisions of the C
- In Christian Lawyers’ Association - the meaning of “everyone” was clarified by looking at the meaning of “child”
14
Q
Explain the contextual interpretation in the wider historical or political sense (3)
A
- One of the purposes of the C is that there must be a decisive break with the SA past
- A purposive interpretation will therefore take this history and the desire not to repeat it into account when determining the meaning of a constitutional provision
- In Harksen v Lane - the CC held that, when determining whether discrimination is unfair, one of the factors that must be taken into account is whether the complainant differed in the past from patterns of disadvantage
15
Q
Briefly explain the contextual approach in the wider drafting sense (4)
A
- This entails statements by politicians made during the negotiations and drafting process, sometimes called the “ipse dixit” of the political role players - which are of little value in the interpretation of the C.
- The ipse dixit of negotiators should be distinguished from the background materials compiled during the drafting process.
- In international law this is called the travaux preparatoires
- The CC attaches some significance to it when interpreting the C
