Typical Questions FUR2601
1. 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)
A:
Fundamental rights litigation has three stages:
Procedural stage:
Application: Does the Bill of Rights apply to the dispute? Is the respondent bound, and is the
applicant protected under it?
Application: Does the Bill of Rights apply directly or indirectly in the dispute?
Justiciability: Is the issue justiciable, and does the applicant have standing?
Jurisdiction: Does the court have jurisdiction to grant relief?
Substantive stage:
Has the respondent infringed a fundamental right of the applicant? If no, the application is
dismissed.
If yes, is the infringement a justifiable limitation of the right under section 36? If yes, the
application is dismissed. If no, it is unconstitutional.
Remedy stage:
If a violation is found, the court will consider an appropriate remedy to deal with the
unconstitutional infringement.
2. Billy Jean, from “Gay and Proud,” is denied membership of a gym. Would the following
have standing in terms of section 38 of the Constitution to approach a court for an alleged
violation of a constitutional right? (10)
A:
(i) Billy Jean?
Yes, under section 38(a), he can act on his own behalf as he has a direct personal interest.
(ii) Mr. Levi, also a member of “Gay and Proud”?
Yes, under section 38(c), he can act as a member or in the interest of a group or class of persons.
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,(iii) The “Gay and Proud” organization?
Yes, under section 38(e), an association can act in the interest of its members.
(iv) Mr. Diesel, an actor from Cape Town?
Yes, under section 38(d), he can act in the public interest.
(v) Ms. Hecter, who claims Billy Jean is emotionally unstable to bring the action himself?
Yes, under section 38(b), she can bring the action on behalf of Billy Jean, who is unable to act in
his own name.
3. Discuss whether and to what extent a juristic person can rely on the protection of the Bill of
Rights. Can Noseweek, an independent newspaper, invoke the right to life and the right to
freedom of expression? (5)
A:
In the First Certification judgment, the Court emphasized that some fundamental rights should
apply to juristic persons. Section 8(4) states that juristic persons are entitled to rights based on
the nature of the right and the juristic person.
The right to life cannot apply to juristic persons like Noseweek, but Noseweek may invoke the
right to freedom of expression, as it is specifically afforded to the media, often controlled by
juristic persons.
4. Discuss whether magistrates' courts can develop common law in accordance with the
Constitution. (5)
A:
Magistrates' courts must ensure proceedings comply with the Constitution. Section 8(3) requires
courts to develop common law in line with constitutional rights. However, section 173 explicitly
empowers only the Constitutional Court, the Supreme Court of Appeal, and the High Courts to
develop common law. Magistrates' courts follow superior court precedents and cannot develop
common law independently.
5. Describe how (i) public international law and (ii) foreign law may influence the
interpretation of the South African Bill of Rights. (5)
2
, A:
(i) Public international law: Refers to international agreements and judgments of international
courts. Courts must consider public international law when interpreting rights.
(ii) Foreign law: Refers to foreign precedents, legislation, and case law. Courts may consider
foreign law, but it is not obligatory.
6. What is the importance of Fose and Carmichele as far as constitutional damages are
concerned? (10)
A:
Fose: Established that constitutional damages will not usually be awarded if delictual damages
are sufficient for a violation. Even if delictual damages are unavailable, constitutional damages
are not guaranteed.
Carmichele: Reinforced the development of delictual remedies. It highlighted that constitutional
damages may be necessary when no other remedy effectively protects the violated right or deters
future infringements.
7. How does section 6 of the Promotion of Equality and Prevention of Unfair Discrimination
Act 4 of 2000 differ from section 9(3) of the Constitution? (6)
A:
Section 6 prohibits unfair discrimination by both the state and individuals, broader than section
9(3), which focuses on specified grounds of discrimination. The Act has procedural advantages:
The complainant must first establish a prima facie case, then the burden shifts to the respondent
to disprove the discrimination.
Unfairness is presumed on both prohibited and analogous grounds under the Act, whereas
section 9(3) presumes unfairness only on specified grounds.
The Act details instances of discrimination based on race, gender, and disability, as well as hate
speech and harassment.
8. Discuss the statement: “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 significance in the limitations inquiry.” (10)
A:
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1. 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)
A:
Fundamental rights litigation has three stages:
Procedural stage:
Application: Does the Bill of Rights apply to the dispute? Is the respondent bound, and is the
applicant protected under it?
Application: Does the Bill of Rights apply directly or indirectly in the dispute?
Justiciability: Is the issue justiciable, and does the applicant have standing?
Jurisdiction: Does the court have jurisdiction to grant relief?
Substantive stage:
Has the respondent infringed a fundamental right of the applicant? If no, the application is
dismissed.
If yes, is the infringement a justifiable limitation of the right under section 36? If yes, the
application is dismissed. If no, it is unconstitutional.
Remedy stage:
If a violation is found, the court will consider an appropriate remedy to deal with the
unconstitutional infringement.
2. Billy Jean, from “Gay and Proud,” is denied membership of a gym. Would the following
have standing in terms of section 38 of the Constitution to approach a court for an alleged
violation of a constitutional right? (10)
A:
(i) Billy Jean?
Yes, under section 38(a), he can act on his own behalf as he has a direct personal interest.
(ii) Mr. Levi, also a member of “Gay and Proud”?
Yes, under section 38(c), he can act as a member or in the interest of a group or class of persons.
1
,(iii) The “Gay and Proud” organization?
Yes, under section 38(e), an association can act in the interest of its members.
(iv) Mr. Diesel, an actor from Cape Town?
Yes, under section 38(d), he can act in the public interest.
(v) Ms. Hecter, who claims Billy Jean is emotionally unstable to bring the action himself?
Yes, under section 38(b), she can bring the action on behalf of Billy Jean, who is unable to act in
his own name.
3. Discuss whether and to what extent a juristic person can rely on the protection of the Bill of
Rights. Can Noseweek, an independent newspaper, invoke the right to life and the right to
freedom of expression? (5)
A:
In the First Certification judgment, the Court emphasized that some fundamental rights should
apply to juristic persons. Section 8(4) states that juristic persons are entitled to rights based on
the nature of the right and the juristic person.
The right to life cannot apply to juristic persons like Noseweek, but Noseweek may invoke the
right to freedom of expression, as it is specifically afforded to the media, often controlled by
juristic persons.
4. Discuss whether magistrates' courts can develop common law in accordance with the
Constitution. (5)
A:
Magistrates' courts must ensure proceedings comply with the Constitution. Section 8(3) requires
courts to develop common law in line with constitutional rights. However, section 173 explicitly
empowers only the Constitutional Court, the Supreme Court of Appeal, and the High Courts to
develop common law. Magistrates' courts follow superior court precedents and cannot develop
common law independently.
5. Describe how (i) public international law and (ii) foreign law may influence the
interpretation of the South African Bill of Rights. (5)
2
, A:
(i) Public international law: Refers to international agreements and judgments of international
courts. Courts must consider public international law when interpreting rights.
(ii) Foreign law: Refers to foreign precedents, legislation, and case law. Courts may consider
foreign law, but it is not obligatory.
6. What is the importance of Fose and Carmichele as far as constitutional damages are
concerned? (10)
A:
Fose: Established that constitutional damages will not usually be awarded if delictual damages
are sufficient for a violation. Even if delictual damages are unavailable, constitutional damages
are not guaranteed.
Carmichele: Reinforced the development of delictual remedies. It highlighted that constitutional
damages may be necessary when no other remedy effectively protects the violated right or deters
future infringements.
7. How does section 6 of the Promotion of Equality and Prevention of Unfair Discrimination
Act 4 of 2000 differ from section 9(3) of the Constitution? (6)
A:
Section 6 prohibits unfair discrimination by both the state and individuals, broader than section
9(3), which focuses on specified grounds of discrimination. The Act has procedural advantages:
The complainant must first establish a prima facie case, then the burden shifts to the respondent
to disprove the discrimination.
Unfairness is presumed on both prohibited and analogous grounds under the Act, whereas
section 9(3) presumes unfairness only on specified grounds.
The Act details instances of discrimination based on race, gender, and disability, as well as hate
speech and harassment.
8. Discuss the statement: “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 significance in the limitations inquiry.” (10)
A:
3
