FUR2601 STUDY UNIT 2 - Structure of the Bill of Rights Exam Questions Will 100% Correct
Answers
2.1 THREE STAGES OF FUNDAMENTAL RIGHTS LITIGATION - Answer-Fundamental rights
litigation takes place in three distinct stages, namely
the procedural stage,
the substantive stage
and the remedies stage.
STAGE 1: PROCEDURAL STAGE - Answer-In this stage, the courts are concerned with
(i) the application of the Bill of Rights to the subject matter of the litigation,
(ii) the justiciability of the issue to be decided and the standing of the applicant,
and (iii) the jurisdiction of the court to grant the relief claimed by the applicant.
(i) APPLICATION - Answer-Here, it needs to be established whether the Bill of Rights applies
to the dispute between the parties.
It must be established whether the applicant is protected by the Bill of Rights and whether
the respondent is bound to act in accordance with the Bill of Rights.
The applicant must determine which right in the Constitution protects him/her in the
particular circumstances of the case.
Section 8 of the Constitution will determine whether the respondent is bound in the
circumstances to act in accordance with the Constitution.
How does the Bill of Rights apply to the dispute? It must be determined whether the Bill of
Rights applies directly or indirectly. The general rule followed by the courts
is that the Bill of Rights must first be applied indirectly before direct application is considered
(ii) JUSTICIABILITY: - Answer-The issues must be ripe for decision by the court and must not
be moot or academic.
Does the applicant in the matter have standing in respect
of the particular relief sought?
Answers
2.1 THREE STAGES OF FUNDAMENTAL RIGHTS LITIGATION - Answer-Fundamental rights
litigation takes place in three distinct stages, namely
the procedural stage,
the substantive stage
and the remedies stage.
STAGE 1: PROCEDURAL STAGE - Answer-In this stage, the courts are concerned with
(i) the application of the Bill of Rights to the subject matter of the litigation,
(ii) the justiciability of the issue to be decided and the standing of the applicant,
and (iii) the jurisdiction of the court to grant the relief claimed by the applicant.
(i) APPLICATION - Answer-Here, it needs to be established whether the Bill of Rights applies
to the dispute between the parties.
It must be established whether the applicant is protected by the Bill of Rights and whether
the respondent is bound to act in accordance with the Bill of Rights.
The applicant must determine which right in the Constitution protects him/her in the
particular circumstances of the case.
Section 8 of the Constitution will determine whether the respondent is bound in the
circumstances to act in accordance with the Constitution.
How does the Bill of Rights apply to the dispute? It must be determined whether the Bill of
Rights applies directly or indirectly. The general rule followed by the courts
is that the Bill of Rights must first be applied indirectly before direct application is considered
(ii) JUSTICIABILITY: - Answer-The issues must be ripe for decision by the court and must not
be moot or academic.
Does the applicant in the matter have standing in respect
of the particular relief sought?
