FUR2601 Questions and Answers Exams, the best paper ever download it for a grade A

Section A 1.1 In President of the Republic of South Africa and Another v Hugo, the Constitutional Court held that the decision of the President granting a remission of sentence to all imprisoned mothers with minor children under the age of 12, but not to the fathers, amounted to unfair discrimination. False, because it amounted to fair discrimination as its purpose was to achieve an important societal goal. 1.2 The Tshwane Metro Council plans to evict a number of squatters from land that has been earmarked for a housing project. The Council has the right to evict the squatters and demolish their dwellings. True, because the actions of the Council amounts to an administrative decision. 1.3 A decision by the Independent Electoral Commission (IEC) that prisoners will not be allowed to vote in the forthcoming elections qualifies as law of general application. False, because the Electoral Act does not deny prisoners the right to vote. 1.4 Formal equality refers to sameness of treatment. True, because this means that the law must treat individuals the same regardless of their circumstances. 1.5 The common-law rule that criminalises gay sodomy infringes the right to human dignity. True, because this statement was confirmed by the Constitutional Court in National Coalition for Gay and Lesbian Equality v Minister of Justice. Section B 1.6 List the requirements that have to be met in order to obtain locus standi when a person is seeking to act in public interest. (2) It must be shown that the person is acting in the public’s interest. It must be shown that the public has sufficient interest in the requested remedy. 1.7 Differentiate the following concepts: Reading in and reading down (3) Reading in is a remedy while reading down is a method of statutory interpretation aimed at avoiding inconsistency between the law and the Constitution. Reading in is a constitutional remedy which is granted by a court after it has concluded that a statue is constitutionally invalid. Reading in is mainly used when the inconsistency is caused by an omission and it is necessary to add words to the statutory provision to cure it. 11.8 Discuss whether, and to what extent, a juristic person can rely on the protection of the Bill of Rights. For instance, can Nose week, an independent newspaper, invoke the right to life and the right to freedom of expression? (5) In the First Certification judgment, the Court emphasized that many universally accepted fundamental rights will be fully recognized only if afforded to juristic persons as well as to natural persons. Section 8(4) provides for the protection of juristic persons. A juristic person is entitled to the rights in the Bill of Rights to the extent required by the nature of the rights and the nature of that juristic person. In order to determine whether a juristic person is protected by a particular right or not, two factors must be taken into consideration: first, the nature of the right, and, secondly, the nature of the juristic person. The nature of some fundamental rights is such that these rights cannot be applied to juristic persons. Nose week cannot be protected by the right to life, which is afforded to human beings only, although it might have standing to approach a competent court if the requirements of section 38 have been complied with. Other rights, such as the right to freedom of expression, have been specifically afforded to the media, which are often controlled by juristic persons. 1.9 What is the relationship between the Constitution and the Bill of Rights? (5) The Bill of Rights (Chapter 2) is part and parcel of the Constitution. It can only be properly understood in the context of the Constitution. Like the Constitution itself, it is entrenched, enforceable and justiciable. QUESTION 2 2.1 Discuss whether or not magistrates’ courts can develop common law in accordance with the Constitution. (10) Section 8(3) of the Constitution obliges the courts, when applying the provisions of the Bill of Rights, if necessary, to develop rules of the common law to limit the rights, provided that the limitation is in accordance with section 36 of the Constitution. This means that they are bound to give effect to the constitutional rights as all other courts are bound to do in terms of section 8(1) of the Constitution; hence magistrates presiding over criminal trials must, for instance, ensure that the proceedings are conducted in conformity with the Constitution, particularly the fair-trial rights of the accused. Further, section 39(2) places a positive duty on every court to promote the spirit, purport and objects of the Bill of Rights when developing the common law. Over and above that, in terms of section 166 of the Constitution, courts in our judicial system include magistrates’ courts. However, section 173 explicitly empowers only the Constitutional Court, the Supreme Court of Appeal and the High Courts to develop the common law, taking into account the interests of justice. Magistrates’ courts are excluded on the basis of the following grounds: Magistrates are constrained in their ability to develop crimes at common law by virtue of the doctrine of precedent. Their pronouncements on the validity of common law criminal principles would create a fragmented and possibly incoherent legal order. Effective operation of the development of common law criminal principles depends on the maintenance of a unified and coherent legal system, a system maintained through the recognized doctrine of 2stare devises which is aimed at avoiding uncertainty and confusion, protecting vested rights and legitimate expectations of individuals, and upholding the dignity of the judicial system. Moreover, there does not seem to be any constitutional or legislative mandate for all cases in which a magistrate might see fit to develop the common law in line with the Constitution to be referred to higher courts for confirmation. Such a referral might mitigate the disadvantageous factors discussed above. 2.2 Discuss the Constitutional Court’s recent decision in Hassam v Jacobs specifically with regard to the application of the equality test as laid down in Harksen v Lane. (10) A good illustration of the application of the Harksen v Lane enquiry is the Constitutional Court’s recent decision in Hassam v Jacobs. The case concerned the confirmation of a declaration of constitutional invalidity of certain sections of the Intestate Succession Act 81 of 1987. The impugned provisions were found to exclude widows of polygynous marriages celebrated according to the tenets of the Muslim religious faith in a discriminatory manner from the protection of the Intestate Act. The applicant’s argument was largely devoted to the equality provisions in the Constitution, specifically unfair discrimination on the grounds of gender, marital status and religion. Nkabinde J, at paragraphs 31–39 (footnotes omitted), specifically stated: [31] The marriage between the applicant and the deceased, being polygynous, does not enjoy the status of a marriage under the Marriage Act. The Act differentiates between widows married in terms of the Marriage Act and those married in terms of Muslim rites; between widows in monogamous Muslim marriages and those in polygynous Muslim marriages; and between widows in polygynous customary marriages and those in polygynous Muslim marriages. The Act works to the detriment of Muslim women and not Muslim men. [32] I am satisfied that the Act differentiates between the groups outlined above. [33] Having found that the Act differentiates between widows in polygynous Muslim marriages like the applicant, on the one hand, and widows who were married in terms of the Marriage Act, widows in monogamous Muslim marriages and widows in polygynous customary marriages, on the other, the question arises whether the differentiation amounts to discrimination on any of the listed grounds in section 9 of the Constitution. The answer is yes. As I have indicated above, our jurisprudence on equality has made it clear that the nature of the discrimination must be analysed contextually and in the light of our history. It is clear that, in the past, Muslim marriages, whether polygynous or not, were deprived of legal recognition for reasons which do not withstand constitutional scrutiny today. It bears emphasis that our Constitution not only tolerates but celebrates the diversity of our nation. The celebration of that diversity constitutes a rejection of reasoning such as that to be found in Seedat’s Executors v The Master (Natal), where the court declined to recognise a widow of a Muslim marriage as a surviving spouse because a Muslim marriage, for the very reason that it was potentially polygynous, was said to be “reprobated by the majority of civilised peoples, on grounds of morality and religion”. [34] The effect of the failure to afford the benefits of the Act to widows of polygynous Muslim marriages will generally cause widows significant and material disadvantage of the sort which it is the express purpose of our equality provision to avoid. Moreover, because the denial of benefits affects only widows in polygynous marriages concluded pursuant to Muslim rites and not widowers (because Muslim personal law does not permit women to have more than one husband), the discrimination also has a gendered aspect. The grounds of discrimination can thus be understood to be overlapping on the grounds of: religion, in the 3sense that the particular religion concerned was in the past not one deemed to be worthy of respect; marital 1status, because polygynous Muslim marriages are not afforded the protection other marriages receive; and gender, in the sense that it is only the wives in polygynous Muslim marriages that are affected by the Act’s exclusion. [35] This conclusion does not mean that the rules of Muslim personal law, if enacted into law in terms of section 15(3) of the Constitution, would necessarily constitute discrimination on the grounds of religion, for the Constitution itself accepts diversity and recognises that, to foster diversity, express provisions for difference may at times be necessary. Nor does this conclusion foreshadow any answer on the question as to whether polygynous marriages are themselves consistent with the Constitution. Whatever the answer to that question may be, one we leave strictly open now, it could not result in refusing appropriate protection to those women who parties to such marriages are. Such a result would be to lose sight of a key message of our Constitution: each person is of equal worth and must be treated accordingly. [36] I hasten to mention that the position of widows in monogamous Muslim marriages has, however, since Daniels, been somewhat ameliorated by their recognition as spouses under the Act. However, women in polygynous Muslim marriages still suffer serious effects of nonrecognition. 2.3 Explain the different stages of fundamental rights litigation. In your answer, refer to the procedural and substantive issues a court will have to consider. (10) 3 stages of fundamental rights litigation Procedural stage Substantive Stage Remedy stage Procedural stage In this stage the courts are concerned with Application: Does the Bill of Rights apply to a dispute between the parties? It must be determined whether the respondent is bound by the Bill of Rights, and whether the applicant is protected by the Bill of Rights in the circumstances Application: How does the Bill of Rights apply in the dispute? It must be determined whether the Bill of Rights applies directly or indirectly. Justiciability Is the issue justiciable and does the applicant in the matter has standing in respect of the relief sought? Jurisdiction Does the court have jurisdiction to grant the relief claimed? Substantive stage Has the law or conduct of the respondent infringed a fundamental right of the applicant? If no, the application is dismissed. If yes, the court will go on to determine whether the infringement is a justifiable limitation of the right according to the criteria set out in section 36. If yes, the application is dismissed. If no, then it will be deemed to be unconstitutional. Remedy 4 If the court finds that a violation of a right is not a justifiable limitation, it will have to consider the appropriate remedy to deal with the unconstitutional infringement of a fundamental right. Question 3 3.1 Discuss the following statement with reference to case law: “Human dignity is not only a justiciable and enforceable right that must be respected and protected; it is also a value that informs the interpretation of possibly all other fundamental rights and is of central significance in the limitations enquiry.” (10) Dignity occupies a special place in the new constitutional order. Section 10 provides that “*everyone has inherent dignity and the right to have their dignity respected and protected”. Other constitutional provisions in which dignity features are the following: – section 1(a) proclaims that the Republic of South Africa is founded, inter alia, on the values of “*human dignity, the achievement of equality and the advancement of human rights and freedoms”. By recognising the inherent dignity of every person, the section puts it beyond any doubt that dignity accrues to all persons, that it is not dependent on particular characteristics, and that it can neither be waived nor lost through undignified behaviour. – That is so because human dignity lies at the heart of the South African constitutional order. In S v Makwanyane, the Court described the rights to life and human dignity as “the most important of all human rights, and the source of all other personal rights” in the Bill of Rights. Dignity is not only a right; it is also one of the core values enshrined in the Constitution to guide the interpretation of other constitutional provisions. In Dawood; Shalabi; Thomas v Minister of Home Affairs, paragraph 35, the Court stated that the value of human dignity “informs the interpretation of many, possibly all, other rights”. 3.2 Describe how (i) public international law and (ii) foreign law may influence the interpretation of the South African Bill of Rights. (5) “Public international law” refers to international agreements and customary international law, and to judgments of international courts. “Foreign law” refers to foreign case law, that is, references to precedents set by courts in other countries, and also to foreign legislation and other constitutions, but mainly to case law. In S v Makwanyane, the Constitutional Court stated that both binding and nonbinding international law may be used as tools of interpretation. International law provides a framework within which rights can be evaluated and understood. It also assists in the interpretation of rights in determining their scope and provides guidance during their interpretation. According to section 39(1), the courts “shall” consider applicable public international law, but “may” consider foreign law. The courts are therefore obliged to consider applicable international law as a persuasive source but are under no obligation to do so as far as foreign law is concerned. The Court stated in Makwanyane that foreign case law will not necessarily provide a safe guide to the interpretation of the Bill of Rights. 3.3 Differentiate between the following concepts Declaration of invalidity and declaration of rights (4)