FUR2601-FUNDAMENTAL-RIGHTS-2ND-SEMESTER-2017-1.

FUR2601 FUNDAMENTAL RIGHTS 2ND SEMESTER 2017

STUDY GUIDE QUESTIONS AND ANSWERS UNITS 1 – 10

STUDY UNIT 1

The University of Gauteng requires all prospective law students to pass a language proficiency
test in either Afrikaans or English, the languages of instruction. Ms X, whose home language is
Northern Sotho, applied to enroll for an LLB degree but was turned down. She feels that the
University’s language policy is discriminatory and therefore unconstitutional. Advise her about the
following:

a. The procedural questions a court will have to consider.
Ms X is protected in terms of section 9(1) and Section 9(3) of the Constitution, which
provides the right to equal treatment and the prohibition against unfair discrimination on the
grounds of language.

b. The substantive issues raised by her case.
She is also protected in terms of section 30 of the Constitution, which allows persons to enjoy
their culture, practice their religion and use of their own language.

c. Possible remedies.
The respondent, the University of Gauteng, is bound by the Bill of Rights in terms of section
8(2) of the Constitution. This section provides that natural and juristic persons are bound by
the Bill of Rights, if applicable, when the nature of the right and nature of the duty imposed by
the right are taken into account.

d. Who will bear the onus of proof at different stages of the litigation?

The University of Gauteng will bear the onus of proof at the different stages of litigation. [10]

STUDY UNIT 2

Who is entitled to the rights in the Bill of Rights?

1) Franco Phile, a French soccer player, has a one-year contract to play for a South African
Club. Is Franco entitled to the following constitutional rights? Explain your answers briefly. [3]
a. The right to life
b. The right to administrative justice
c. The right to vote in general elections. [3]
Answer:
Section 11 of the Bill of Rights reads: “Everyone has the right to life.” Section 33 provides:
“Everyone has the right to fair administrative action that is lawful, reasonable and procedurally
fair,” Therefore, Franco is entitled to these rights. However, section 19 (Political Rights) is
applicable only to every citizen, as a non-citizen, Franco is not entitled to this right.

2) When can a juristic person rely on the protection of the Bill of Rights? Briefly discuss section
8(4) when answering this question. [3]

a. Can an insurance company invoke the right to life? [2]

By applying section 8(4), it is unlikely that a company can claim the right to life. This is so
because the nature of the right is such that it refers to human life and does not encompass
the existence of a company.


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b. Can a trade union invoke the right to engage in collective bargaining? [2]
With regard to the nature of the right and the nature of the juristic person, the answer is
yes because this is the reason why the trade union exists.

c. Can a close corporation invoke the right of access to information? [2]
Yes, the nature of the right and the access to information is such that it can be exercised
in principle by a juristic person such as a close corporation.

d. Can the SABC invoke the right to freedom of speech? [2]
The nature of the right is such that it can be exercised by a juristic person. Moreover,
freedom of expression is central to the activities of the SABC. The SABC is therefore
entitled to this right, even though it is state-owned.

e. Can the Gauteng provincial government invoke the right to equality? [2]
Probably not because the Gauteng provincial government is an organ of state and its
nature precludes the right to equality.

3) ABC Supermarket is charged with the violation of the Liquor Act for selling wine on a Sunday.
In its defense, ABC Supermarket argues that the Act is an unconstitutional violation of its
rights to freedom of religion.

a. Advise ABC Supermarket whether it can lay claim to the right to freedom of religion? [2]
No, a juristic person such as a supermarket cannot lay claim to freedom of religion, given
the nature of the right and the nature of the juristic person. (One could argue that a
church today, albeit a juristic person, will indeed be able to claim this right.)

b. If ABC Supermarket cannot lay claim to the right of freedom of religion, nevertheless
invoke the right to freedom of religion to challenge the constitutionality of the Act? [2]
In our view the answer should be Yes. Even though the supermarket is not entitled to the
right to freedom of religion, it would have locus standi, since it has a sufficient interest in
the outcome of the case.

4) Can a juristic person rely on the protection of the Bill of Rights? For instance, can the SABC
invoke the right to life and the right to freedom of expression? [5]

In terms of section 8(4) of the Constitution, a juristic person is entitled to the rights in the
Bill of Rights to the extent required by the nature of the right and the nature of the juristic
person.

Each right has to be looked at individually in order to determine whether or not the SABS, as
a juristic person, is entitled to claim these rights. The nature of the right to life is such
that it cannot be exercised by a juristic person but only by a natural person. However,
the SABC can invoke the right to freedom of expression.

Firstly, there is nothing about the nature of this right which makes it impossible or
undesirable for juristic persons to invoke it. Secondly, the nature of the juristic person
(the SABC) is such that exercising the right to freedom of expression is part of its daily
business. Currie and De Waal argue that a juristic person may be allowed to attack the
constitutionality of a law or conduct on the grounds that it infringes a fundamental
right, even if the juristic person is not entitled to that right in terms of section 8(4). For
instance, if the juristic person has a sufficient interest in the matter to have standing, even
if it is not by itself capable of exercising freedom of religion.

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Who is bound by the Bill of Rights?
5) State whether the following statements are TRUE or FALSE. Give reasons for your answers.
a. It is not necessary for the rules of Elite Secondary School (a private school) to comply with
the provisions of the Bill of Rights. [2]

FALSE
It may be argued that the school, as a private school, is an institution performing a public
function in terms of legislation and is therefore in terms of definition of section 239, an
organ of state and bound by the Bill of Rights in terms of section 8(1). It may also be
argued that the school, as a juristic person, is bound by the terms of section 8(2)
depending on the nature of the right and the nature of the duty imposed by the right.

b. The Department of Education is one of the few state departments not bound by the Bill of
Rights. [2]

FALSE
In terms of section 8(1) the Executive and all organs of state are bound by the Bill of
Rights.

c. The immigration authorities are entitled to deport all illegal immigrants immediately
because they are not protected by the 1996 Constitution. [2]

FALSE
In terms of section 33, every person (also an illegal immigrant) has the right to just
administrative action. They have all the rights in the Bill of Rights.

d. The Happy Sunday Liquor Store may trade on Sundays because it is protected by section
15 of the 1996 Constitution, which makes provision for the right to freedom of religion. [2]

FALSE
The liquor store as a juristic person s8 (4) is of such a nature that it is not protected by the
right to freedom of religion. However, because of it having a sufficient interest in the
decision of the court, it will have standing in terms of section 38.

e. Natural and juristic persons are not bound by the right of access to adequate housing in
terms of section 26(1) but are bound by the right of a person not to be evicted from his/her
home without a court order in terms of section 26(3)). [2]

TRUE
In terms of section 8(2), both natural and juristic persons are bound by the Bill of Rights,
depending on the nature of the right and the nature of the duty imposed by the right.
Section 26(2); however, seems to indicate that it is binding on the state only. Therefore
leading us to believe that section 26(1) may not apply to private conduct as well. Section
26(3) is then binding on both the state and natural and juristic persons. Authority for this
view may be found in Brisley v Drotsky 2002 (12) BCLR 1229 (SCA, paragraph 40.

f. The Bill of Rights applies to the conduct of a farm owner who refuses to provide housing
for a group of squatters. [2]
FALSE
The right involved is the right to housing and specifically in terms of section 26(2), given
the nature of the duty and the fact that section 26(2) refers only to the state’s obligation to
provide housing.
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6) Does the Bill of Rights apply to the following? Discuss application of Bill of Rights only. Give
reasons for your answers.

This question involved the application of the Bill of Rights to those who are bound by the Bill
of Rights. The relevant provisions in the Constitution are subsections 8(1) and 8(2).

Section 8(1) provides that the Bill of Rights applies to all law and binds the legislature, the
Executive, the Judiciary and all organs of state. Subsection 8(2) makes provision for the
application of certain rights to natural and juristic persons. Therefore the law or conduct in
question is covered in subsection 8(1) or 8(2).

a) A decision by Parliament to adopt a new Immigration Act. [2]
Yes, in terms of section 8(1), the legislature is bound by the Bill of Rights.

b) A decision by a private school to expel five learners. [2]
Yes, it could be argued that a private school performs a public function in terms of
legislation and that it is therefore an organ of state. If this is the case, the private school
will be bound in terms of section 8(1). Alternatively, one can argue that the school, as a
juristic person will be bound in terms of section 8(2)

c) An interim interdict issued by the magistrate’s court. [2]
Yes, the judiciary is bound in terms of section 8(1).

d) The requirement that only people between the ages of 20 and 40 may apply for
membership of a gymnasium. [2]
A gymnasium is not an institution which performs a public function in terms of legislation. It
is therefore not an organ of state and is not bound in terms of section 8(1). However, it will
be bound in terms of section 9(4) read with section 8(2). Section 9(4) makes it clear that
no person (including a juristic person) may discriminate unfairly.

e) A will I terms of which a female descendant is prevented from inheriting the deceased
estate. [2]
The testator is bound in terms of section 9(4) (read with s8 (2)) not to discriminate unfairly.

7) Discuss whether a juristic person can rely on the protection of the Bill of Rights and to what
extent? For instance, can Noseweek, an independent newspaper, invoke the right to life and
right to freedom of expression? [5]

In Ex Parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution
of the Republic of South Africa, 1996 1996 (4) SA 744 (CC) (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 an extent. In order to determine whether a juristic person is
protected by a particular right or not, two factors must be taken into consideration:
a) Firstly, 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.
Noseweek 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 is often controlled by juristic persons.

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