Cheatography
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South African Bill Of Rights
This is a draft cheat sheet. It is a work in progress and is not finished yet.
INTRODUCTION
Constructed to give effect to transformative vision of Constitution |
Applies to both the state and private persons |
Range of rights are protected |
(post-liberal text aimed at facilitating social + economic transformation of SA ) |
Structure of litigation differs from other branches of law |
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PRELIMINARY QUESTIONS
Is the person/ organisation who claim their rights have been infringed entitled to protection by BOR? |
Most cases, everyone (excluding fetuses) present in SA and non-citizens in SA can claim rights. |
Some rights benefit smaller category like if the right specifically says "children" or "workers" |
Does the person/ organisation have standing to bring the case? |
Will the BOR apply indirectly or directly to the dispute? |
Are the alleged party bound by the BOR? |
BOR always binds the state and, in some circumstances, private parties |
If rights are infringed, is the infringement justifiable i.t.o Limitation Clause s36? |
Enables constitutional rights to be limited for a certain limited + democratically justifiable purpose |
LIMITATIONS CLAUSE s36
Proportionality test applied to determine whether limitation is reasonable + justifiable balance b/t NB limitation objective + extent which right is limited |
Must consider relevant factors: Relation b/t limitation + purpose, Importance + purpose of limitation, Nature of right, Nature + extent of limitation |
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Legitimate objectives for limiting rights: Protecting rights of others, Public Health, Public Morals, Promoting social justice, National Security |
- Only deals with BOR. Some rights may not be limited, even in S.O.E (absolute/ non-derogable rights)
- Relationships b/t rights might imply limitation on one of them
e.g right to life vs right to bodily + psychology integrity
- formulation of right might imply limitation on one of them
e.g no unfair discrimination vs fair discrimination (u18 can't vote)
- Many rights can be limited/ narrowed in order to prevent conflicts with other right/ or certain general interests
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STRUCTURE OF BOR LITIGATION
1) Application/ Procedural Stage |
Can X go to court to claim their right is infringed? |
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Is alleged person bound by the duties imposed BOR? |
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Does BOR apply indirectly or directly to dispute? |
2) Limitation/ Substantive Stage |
What is the scope of the right and does law/ conduct infringe on right? |
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If infringement occurs, is it justifiable i.t.o Limitation Clause s36 |
3) Remedies Stage |
Court decides appt. remedies only if law unjustifiably infringes right OR doesn't promote values of BOR |
3 stages set out in the operational provisions of BOR and regulates the questions courts need to consider. They are:
- State's duty to respect, protect, promote, + fulfill BOR [s7]
- Suspension of rights in S.O.E [s37]
- Who is bound by BOR [s8]
- Who has standings to enforce rights [s38]
- Interpretation of rights [s39]
- Limitations of rights [s36]
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