Unit 4 Flashcards
(13 cards)
When does the BoR apply directly to legal disputes? (4)
- When a right of a beneficiary of the BoR has been infringed 2. by person on whom the BoR has imposed the duty not to infringe the right 3. during the period of operation of the BoR and 4. in the national territory
When 1 of the 4 elements above is note present, what happens?
The BoR may apply indirectly.
What is meant by indirect application of the BoR?
- The C and BoR establish an “objective normative valye system”, a set of values that must be respected whenever the common law, customary law or legislation is interpreted, developed or applied.
- When indirectly applied, the BoR does not override ordinary law or generate its own remedies; rather, it respects the rules and remedies of ordinary law, but demands furtherance of its values mediated through the operation of the ordinary law.
What is meant by direct application of the BoR?
Where the BoR applies as directly applicable law, it overrides ordinary law and any conduct that is inconsistent with it and, to the extent that ordinary legal remedies are inadequate, the BoR generates its own remedies.
What are the 2 factors that must be considered to decide whether a juristic person is protected?
- The nature of some of the fundamental rights in question; and
- The nature of the juristic person.
Which rights, inter alia, cannot apply to juristic persons? (2)
- Right to life and physical integrity
2. Right to human dignity
Why is the BoR not confined to protecting individuals against the state (vertical relationship)?
Because private abuse of human rights may be as bad as violations perpetrated by the state.
What is direct horizontal application?
When a person violates a right of another
What does section 8(1) of the C state?
- Provides that the legislature, the executive and the judiciary, all organs of state are bound by the BoR.
What does section 8(2) state?
- A provision of the BoR applies to the conduct of a private or juristic person only to the extent that the provision is applicable, taking into account
a. The nature of the right
b. The nature of any duty imposed by the right
What are the 5 additional considerations to keep in mind when interpreting section 8(2)?
- Sec 8(2) refers to a “provision” (and not a “right”) that may apply to private conduct
- Nature of the private conduct and the circumstances of each case
- The purpose of a provision
- Nature of any duty imposed by the right
- Indications in the BoR
Explain the indirect application to legislation (i.e. to interpret legislation in conformity with the BoR)
- Since the BoR binds all original and delegated law-making actors, it will always apply directly to legislation.
- But, a court must first consider indirect application before resorting to direct application and invalidation
- It must be presumed that the legislature intended to further the values underlying the BoR, unless the contrary is established
- Since reading down legislation would mean any legislative provision could be made to conform (which would render the legislature superfluous), the SCA held that an interpretation of legislation is constrained by the requirement that it must be “reasonably possible”.
Explain the understanding that indirect application must take place before direct application (6)
- Zansi v Council of State
- Observance of the ‘salutary rule’ in SA
- Procedural: Courts should not decide moot cases or cases that are not ripe.
- Substantive: Space must be left for the legislature to reform the law in accordance with its own interpretation of the C
- The principle that constitutional issues should be avoided is not an absolute rule - it does not require that litigants may only directly invoke the C as a last resort.
- It will depend on the circumstances of each case.
