CASES: FUR2601

Study Unit 1: Introduction to the Constitution

and the Bill of Rights
1. Ex parte Chairperson of the Constitutional Judgment → Decline to certify the text.
Assembly: in re Certification of the
Constitution of the Republic of South Africa The CC held → The provisions relating to provincial
1996. (First Certification judgment) 1996 powers, local government, entrenchment of the Bill of
Rights and Public Service Commission did not comply
with the Constitutional Principles.

Instead of an outright transmission of power there would

be a 2-stage transition. The interim government under the
interim  would govern the country on a coalition basis
while the final  was being drafted. An elected national
legislature would draft the new.

2. Certification of the Amended Text of the Judgment → Accepted the text to be consistent with the
Constitution fo the Republic of South Africa Constitutional Principles.
1996 (Second Certification judgment) 1997.
The CC held → Once the  was certified - it is not
possible to object to the amendments of the 1996
Constitution on the basis of not complying with the
Principles.

→ A court should approach the meaning of the relevant

provision of the  as assigned by the CC in the
certification process and should not be departed from save
in the most compelling circumstances.

3. South African Association of Personal Injury The CC held → There is no doubt the  provides for
Lawyers v Heath 2001 such a separation of powers and that laws inconsistent
with the  are invalid. Further, that the principle is an
implied or implicit provision and drawn from the structure
of other provisions.

4. Executive Council of the Western Cape The CC held → Any law or conduct not in accordance
Legislature v President of the Republic of with the , either for procedural or substantive reasons,
South Africa 1995. will therefore not have the force of law.

The CC held → The “manner & form” provisions of the

 prevent Parliament form delegating to the executive
the power to amend provisions of the enabling Act of
Parliament. This implies when the executive is
empowered to amend or repeal Acts - the doctrine of

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 separation of functions will be undermined.

Therefore the court held that the executive may not make
this type of law.

5. Soobramoney v Minister of Health (KZN) Judgment → CC refused to order the state to provide
1998. expensive dialysis treatment to keep patient alive.

The CC held → That difficult & agonizing judgments

have to be made as to how a limited budget is best
allocated to the max advantage of the max number of
patients, and this is not a judgment a court can make.

6. Pharmaceuritcal Manufacturers Association Legal question → On what basis is the Presidents conduct
of SA: In re Ex parte President of the of signing an Act into operation constitutionally
Republic of South Africa 2000. reviewable - where the power given to him was granted by
an Act of Parliament.

The CC held → The power was not administrative action

although derived form legislation. The conduct was an
exercise of public power which had to be carried out
consistently with the provisions of the .

Legal question → What constraints does the  place on

the exercise of public power.

The CC held → It is a requirement of the rule of law that

the exercise of public power not be arbitrary. Decision
must be related to the purpose for which the power was
given.

The CC did not reach the rule of law principle until it

decided the conduct was not administrative (Note:
sequence of analysis).

7. Minister of Health v Treatment Action The courts approach to human rights issues →
Campaign 2002.
The CC will not hesitate to issue mandatory relief which
affects policy and has cost implications when reaching the
conclusion that the state has not performed its
constitutional obligations.

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Study Unit 2: Structure of the Bill of Rights
1. Ferreira v Levin NO 1996 The CC held → The applicant has to show that an
infringement of a right has taken place. This requires the
applicant to prove the facts on which they rely.

The respondent then has to show that an infringement is a

justifiable limitation of a right in terms of s 36.

Study Unit 3: Application of the Bill of Rights

1. Du Plessis v De Klerk 1996 Plaintiff sued a newspaper for defamation using the
common-law acito iniuriarum.

The CC: The Bill of Rights under the interim Constitution

had no direct application to horizontal disputes (disputes
between private litigants). → This is because of the
absence of the word “judiciary” → The application of the
Bill of Rights did not apply directly to the judiciary and
the individual. It did however have indirect application.

The CC decided a jurisdictional issue: The development

of the common law was a non-constitutional matter and
remained in the jurisdiction of the Appellate Division:
“two-track” system.

The Constitutional Assembly provided for direct

horizontal application in the 1996 Constitution and
included a shared jurisdictional scheme where the HC,
SCA & CC shared jurisdiction over constitutional
matters.

See Below:

2. Pharmaceutical Manufacturers Association The CC held→ There are not two systems of law, there is
of SA: In re Ex parte President of the only one system of law deriving its force from the
Republic of South Africa 2000 Constitution and subject to its control.

3. Khumalo v Holomisai 2002 Applicants: members of the media (expressly identified

as bearers of the constitutional right to freedom of
expression).

Legal question: Does the common law of defamation

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 unjustifiably limit the right to freedom of expression?

The right here is a candidate for direct horizontal

application.

The CC rejected the argument that private persons will

always be bound by the Bill of Rights because they will
be unable to seek the assistance of the court to enforce
their unconstitutional conduct. The rejection on the basis
that it would make section 8(2) and s 8(3) redundant.

- Holds the BoR must be applied directly to the common

law whenever appropriate.

4. Carmichele v Minister of Safety and Security Ms Charmichael (the appellant) attacked by (respondent)
2001 who at the time was facing rape & attempted murder
charges.

Appellant sued the state for damages. (Failure to comply

with the legal duty of protecting her from someone who
was known to have a criminal history).

The HC held → The state was not liable.

The SCA held → Confirmed the HC judgment.

The CC held → The common law of delict had to be

adapted to promote the Bill of Rights. The case was
referred back to the HC who found the state was liable for
damages.

This is indirect application of the Bill of Rights → the

common law was not invalidated but developed. The
remedy was not a constitutional remedy but the ordinary
rules of delict.

5. Ex parte Chairperson of the Constitutional The CC dealt with an objection to the extension of the
Assembly: In re Certification of the protection of fundamental rights to juristic persons.
Constitution of the Republic of South Africa
1996 The CC held→ Fundamental rights will be fully
recognised if afforded to juristic persons as well as
natural persons. Regard must be had for the nature of the
right and the nature of the juristic person.

Rights relied on by juristic persons;

(s 9) Equality, privacy (s 14), freedom of expression (s

16), freedom of association (s 18), the right to engage in
collective bargaining (s 23(5)), the property right (s 25),
the right of access to information (s 32), just
administrative action (s 33), access to court (s 34), the fair

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 trials rights (s35(5)).

6. De Lille v Speaker of the National Assembly Patricia De Lille, member of the National Assembly was
1998 suspended for alleging in a meeting that some of the
members had acted as spies on behalf of the apartheid
government.

The HC held→ Set aside the suspension and held that the
Assembly violated several provisions of the Constitution.

1. Suspension for contempt is not in line with the

requirement of a representative democracy.

2. Suspension amounts to punishment of the member and

her party.

3. Her right to just administration was violated as she was

not given a hearing by an independent and impartial
tribunal.

4. Her right to freedom of expression was violated.

7. President of the Republic of South Africa v The CC stated there are restraints on the exercise of
SARFU 2000 power by the President.

The case concerned the s 82 (2) (f) power of the President

to appoint a commission of enquiry.

8. President of the Republic of South Africa v CC interpretation of the constitution s 239, makes it clear
Hugo 1997 that the exercise of constitutional executive powers may
be challenged for consistency with the Bill of Rights.

9. Govender v Minister of Safety and Security The SCA set out a standard formula when legislation is
2001 challenged in terms of the Bill of Rights.

A judge or Magistrate is required:

1) To examine the Act under consideration,

2) To examines the meaning of rights protected by the

.

3) To ascertain if it is possible to interpret the Act in a

manner confirming to the .

4) If possible, give effect to it and,

5) If not → initiate steps leading to declaration of

constitutional invalidity.

The reading down was employed to hold that the s 49 (1)

(b) of CPA was not unconstitutional.

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10. Daniels v Campbell NO 2004 Challenge to the constitutionality of legislative provision
which conferred benefits upon surviving spouse in a
marriage terminated by death.

HC held→ provisions unconstitutional to the extent they

did not extend to a spouse of a monogamous Muslim
marriage.

CC → set aside HC order and held→ words “survivor” &

“spouse” could be interpreted to include Muslim
monogamous marriage.

Therefore unnecessary to apply Bill of Rights directly.

11. Ex parte Minister of Safety and Securtiy: in HC confronted with the precedent from SCA in Govender
re S v Walters 2002 decision held→ it did not have to follow it. According to
the judge the appeal court decisions on constitutional
matters rank at the same level as HC decisions, reason
being, both decisions have no force unless confirmed by
the CC.

The CC held→ The HC was bound by the Govender

decision. HC‟s are obliged to follow legal interpretations
of the SCA whether they are constitutional issues or not.

12. Afrox Healthcare v Strydom 2002 Afrox Healthcare Bpk v Strydom: SCA filled the gap in
terms of the binding effect the appeal courts have
regarding pre-constitutional authority;

1. Direct application of the  to the common law: pre-

constitutional authority is not binding on the HC if it is
convinced the common law is in conflict with a
provision of the .

2.Pre-constitutional decisions of appeal court on open

ended matters such as public interest & boni mores:
The HC can depart from authority if it is convinced that
is no longer reflects the values of the .

3. Indirect application of the  to the common law: Even

if convinced the must be developed, the HC is obliged
to follow the authority of pre-constitutional decisions of
the appeal courts.

Afforx & Walters result:

Post constitutional issues of higher courts are binding.

Pre-1994 decisions on common law are binding, except in

cases of direct conflict with the .

This view has been criticised as post Affrox HC‟s still

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 possess the jurisdiction to depart from pre-constitutional
statutory interpretations of the AD.

13. National Coalition for Gay and Lesbian The CC invalidated the common law offence of sodomy.
Equality v Minister of Justice 1999 (It was possible to develop the common law → the legal
question was whether this offence was consistent with the
rights to equality, human dignity and privacy).

14. Bhe v Magistrate, Khaylitsha 2005 The CC invalidated the customary law rule of male
primogeniture, in terms of which wives & daughters are
precluded from inheriting the intestate estate of a black
person.

(The rule could not be developed and was struck down to

be unconstitutional - unfair gender discrimination and
violates the right of woman to human dignity).

15. S v Mhlungu 1995 Judge laid down a general principle that where possible,
indirect application should be applied before reaching a
constitutional issue.

16. S v Makwanyane The CC held → The death penalty was unconstitutional

& declared s 277(1) of the CPA invalid.

This is direct application of the Bill of Rights. The

remedy was the constitutional remedy of invalidation of
the law.

Study Unit 4: Locus Standi

1. Ferreira v Levin NO 1996 Ferreira v Levin NO: The CC to decide whether an examinee
in a liquidation enquiry could challenge a provision in the
Companies Act on the basis of the fair trial rights afforded to
“accused persons”.

The question turned on the interpretation of s 7(4) of the

interim constitution: places a qualification on the ability of the
categories of persons to approach the courts. (equivalent to s
38 of 1996 ).

The challenged section had direct bearing on the applicants‟

common law rights and non-compliance had criminal
consequences. → For this reason the courts granted standing
if;

a) There is an allegation that a right in the BoR has been

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 infringed and,

b) The applicants can demonstrate with

reference to the categories in s 38 (a) - (e) that there is
sufficient interest in obtaining the remedy they seek.

The important consequence of the decision is that applicants

do not need to allege that a fundamental right of the persons
listed in the categories has been infringed, it may merely be a
right in the BoR, the sufficient interest must however be linked
to one of the listed categories.

2. Lawyers for Human Rights v Minister of - In Lawyers for Human Rights v Minister of Home affairs the
Home Affairs 2004 court added additional factors.

→ the degree and vulnerability of the people affected.

→ the nature of the right.

→ the consequences of infringement of the right.

Study Unit 5: Jurisdiction in Bill of Rights

Litigation
1. S v Boesak 2001 Applicant convicted by HC on a charge of 1x fraud, 3 x
theft & sentenced to 6 yrs imprisonment.

Appeal to SCA → Set aside conviction on 1 x theft

charge, dismissed the appeal on the other charges and
reduced sentence to 3 yrs.

Applicant sought special leave to appeal to the CC to

have remaining convictions set aside on basis there was
no evidence to support the finding by the SCA that guilt
had been proved beyond a reasonable doubt. (Erronous
interpretation of the facts).

This was a violation of the right to be presumed

innocent in s35(3) (h) of the Constitution and violation of
the applicants freedom without just cause in terms of s
12(1)(a) of the Constitution.

- The grounds of appeal that the court HC & SCA got the
facts wrong does not constitute a constitutional matter.

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 - The court identified 3 principles for the identificaiton of
constitutional matters in criminal cases:

1) A challenge to a decision of the SCA on the basis only

that it is wrong in the facts is not a constitutional
matter. (The question whether evidence is sufficient to
justify a finding of quilt cannot in itself be a
constitutinal matter, otherwise all criminal cases would
be)

2) The development of, or failure to develop a common-

law rule by the SCA may constitute a constitutional
matter.

3) The application of a legal rule by the SCA may

constitute a constitutional matter. (May occur if the
application of a rule is inconsistnt with some right or
principle of the Constitution).

2. Pharmaceutical Manufacurers Association of The judgement implies that any challenge to the validity
SA: In re: es parte President of the Republic of an
of SA 2000
exercise of public power is a constitutional matter.

The exercise of all public power must comply with the

Constitution which is supreme law, and the doctrine of

legality which is part of that law.

Study Unit 6: Interpretation of the Bill of Rights

1. S v Zuma 1995 - CC → The judge warned against underestimating the
importance of the text. Stated; “as far as the language
permits, the interpretation should be given a broad
approach”

- Judge stressed interpretation of the text must be

grounded in the Constitution, an evident & plain
meaning must not be disgarded or ignored in favor a
generous or purposive meaning.

2. S v Makwanyane 1995 - CC → Stated: The interpretation of the BoR should be

“generous & purposive & give expression to the
underlying values of the Constitution”

- A literal meaning will only be acceptable if it accords

with the underlying values of the Constitution. (This

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 better describes the CC interprative practice).

- On purposive interpretation: The CC held→ while

public opinion is important, it is no substitute for the
duty vested in the court to interpret the Constitution.

- On contextual interpretation: The CC made decisive use

of the principle → it treated the right to life, the right to
equality and dignity together giving meaning to the
prohibition of cruel, inhuman punishment.

- The court stated that both public binding and non-

binding international law may be used as tools of
interpretation.

3. S v Mhlungu 1995 - The CC put generous interpretation to decisive use.

- S 241(8) Provides expressly that pending cases shall be

dealt with as if the Constitution had not been passed.

- The majority held, where the text permits, a broad

interpretation should be preferred if a narrow one
would result in denying the person benefits of the Bill
of Rights.

4. Brink v Kitshoff NO 1996 - The use of historical interpretation by CC when dealing

with equality clause: “Our history is of particular
relevance to the concept of equality…. it is in the light
of the political atrosities that equality need to be
interpated”

5. Ferreira v Levin 1996 - The majority of CC interpreting the right to freedom of

the person attached significance to the fact that the
provision finds its place alongside prohibitions of
“detention without trial”, “torture” & “cruel, inhuman,
degrading punishment” before reaching the conclusion
that the primary prupose of the right is to protect
“physical liberty”

6. Ex parte Gauteng Provincial Legislature: in - Petitioners argued that s 32 (c) of the interim (the right
re Dispute Concerning the Constitutionality to education) meant every person could demand from
of Certain Provisions of the Gauteng School the state the right to be educated in schools based on
Educaiton Policy Bill 83 of 1995 common culture, language or religion.

- The CC made use of contextual interpretation and

held→ The section in context preserves the freedom to,
at ones own expense set up an insitution based on a
special culture, values, language or religion

7. Soobramoney v Minister of Health (KZN) On Contextual interpretation:

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 1998 - Most controversial issue the CC held→ the right to life
(s11) did not impose a positive obligation of the state to
provide life-saving treatment to a critically ill patient.

- The court held that the positive obligations of the state

to provide medical treatment were expressly spelled out
in s 27 and that the court could not interpret the right to
life to impose additional obligations that were
inconsistent with s 27.

Study Unit 7: Limitation of Rights

1. S v Makwanyane 1995 - The rights to life, dignity and not to be subjected to cruel,
inhuman or degrading punishment were found to be
fundamentally important. The death penalty constituted a
severe infringement of these rights and could not be
justified.

- Five factors from this case now contained in s 36.

2. President of the RSA v Hugo 1997 - CC considered validity of the Act releasing all mothers
who had children under 12 from prison.

- To summarise, Mokgoro took the following approach to

„the law of general application‟

1. „Law” for this requirement includes rules of

legislation, delegated legislation, common law and
exercise of executive power conferred by the
Constitution. It is not necessary that executive rule-
making is published in the Government Gazette. The
range of rules qualifying as law should not be too
narrow.

2. To qualify as „law of general application‟ a rule

must be accessible, precise and of general
application. People should be able to know the law
and conform their conduct so. Laws should apply
generally and should not target specific individuals.

- Kriegler J held the Act was not law as it was an

„executive order directed to specific state officials‟ – it
was not general in its application as it applied to only a
specific case.

- According to Kreigler the Act could not serve as a

legitimate restriction of the right to equality. It is not law
of general application and cannot therefore limit a

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 fundamental right.

3. August v Electoral Commission 1999 - CC considered the IEC‟s failure to take steps allowing
prisoners to register to vote. It was not authorised by law
& could not justify right to vote infringement with s 36.

4. Dawood v Minster of Home Affairs 2000 - CC considered validity of Aliens Control Act (allowed
spouses, children, aged, family etc. of people lawfully &
permanently resident to stay in SA pending the outcome
of their application for immigration only if they were in
possession of valid temporary residence permits). The
effect was that a SA married to a foreigner they would
have to choose between going abroad or remaining alone.
The court held the right to cohabit is an aspect of the
constitutional right to dignity which was statutorily being
limited by provisions granting officials the right to refuse
temporary permits. The limitation could not be justified,
the provision allowed an unconstrained discretionary
power and failed to qualify as a law of general application.
Constraints on powers could have been included in the
Act, legislation cannot leave it to an administrative
official to determine when it will be constitutionally
justifiable to limit a right.

5. Minister of Home Affairs v National Institutes - The constitutionality of a provision in the Electoral Act
for Crime Prevention and Re-intergration of which deprived convicted prisoners the right to vote.
Offender (NICRO) 2004
- The Minister of Home Affairs argued limitation was
justified as;

a) It applied only to prisoners who had been deprived of

their liberty by a court after a fair hearing.

b) It would be costly & give rise to logistical problems

making special arrangements for such prisoners.

- The court rejected this, emphasising section 36 – A

burden is placed on the state to justify fundamental rights
limitations, the state has to place sufficient evidence
supporting this. The Minister failed to do that. No factual
info re: logistics was brought. The limitation could
therefore not be saved by the limitation clause.

6. S v Bhulwana 1996 - The CC stated „The Court places the purpose, effects and
importance of the infringing legislation on one side of the
scales, and the nature and effect of the infringement
caused by the legislation on the other. The more
substantial the inroad into fundamental rights, the more
persuasive the grounds of justification must be‟.

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7. National Coalition for Gay and Lesbian - Would a ban on the possession of porn, which is stated to
Equality v Minister of Justice 1999 be the protection of Christian values justify a limitation of
constitutional rights?

- It was held that the enforcement of the personal morality

of a section of the population does not constitute a
legitimate and important purpose which could justify the
limitation of a constitutional right. The aims of protecting
Christian values would therefore not qualify as a
legitimate purpose.

8. S v Mamabolo 2001 - On more than one occasion the CC has found that the
protection of the integrity of the courts is a worthy and
important purpose.

- In this case the constitutionality of the offence of

scandalising the court was considered.

- The court found that „there is a vital public interest in

maintaining the integrity of the judiciary‟

9. S v Manamela 2000 - CC made it clear that the 5 factors to be taken into account
should not be a rigid test.

- The enquiry into reasonableness and justifiability requires

a court to „engage in a balancing exercise and arrive at a
global judgement on proportionality‟

Study Unit 8: Remedies

1. Fose v Minister of Safety & Security 1997 - Fose v Minister of Safety & Security: Held: the
supremacy clause automatically makes unconstitutional
law/conduct a nullity.

- Consequence of constitutional supremacy – law

inconsistent with it – invalid.

- Fose v Minister of Safety & Security: Held: It is left to

the courts to decide what would be „appropriate relief‟
in any particular case. If necessary the courts may
fashion new remedies to secure the protection and
enforcement of fundamental rights.

- General approach to constitutional damages set out by

CC in Fose v Minister of Safety and Security: Est. the
following principles.

- Fose: Sued the Minister for damages as result of alleged

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 assault and torture by the police. Claimed delictual
damages as well as constitutional damages for the
violation of his constitutional rights to dignity and not to
be tortured.

2. Sanderson v Attorney-General, Eastern Cape - Sanderson v Attorney-General, EC: Kriegler J: „Our

1998 flexibility in providing remedies may affect our
understanding of the right‟

- Sanderson v Attorney General, EC: CC held: s 38

sanctions flexible approach to remedies, no particular
remedy is prescribed for violation of constitutional right.

3. JT Publishing v Minister of Safety and - JT Publishing v Minister of Safety and Security: Held a
Security 1997 declaratory order is a discretionary remedy – the claim
lodged does not oblige the court to respond to the question
it poses.

4. President of RSA v Hugo 1997 - President of RSA v Hugo: CC held a Presidential pardon
to release woman with children form prison did not
offend the equality clause. Kriegler dissented, holding it
was unconstitutional that it did not include male
prisoners. Posed a question – is there an appropriate
remedy to address the equality violation? – Proposed
declaring the Presidential Act to be infringement on
Constitution. The declaratory order was the only form of
„appropriate relief‟ but not the only option when a court
finds that a socio-economic right (housing) or similar
positive obligation has been violated.

5. Rail Commuters Action Group v Transet Lts - Metrorail case: CC held: Private law damages not
t/a Metrorail 2005 always most appropriate method to enforce
constitutional rights, they tend to be retrospective in
effect, seeking to remedy loss cause rather than to
prevent loss in future. They also may place heavy
financial burdens on the state.

- Metrorail: CC stated that the declaratory order is a

flexible remedy which is particularly valuable in a
constitutional democracy as it allows the courts to
declare the law on the one hand while leaving the
decision on how best the law should be observed to the
other branches of state.

6. Minister of Health v Treatment Action - Treatment Action Campaign case: The court made it
Campaign 2002 clear that its remedial options in this area were not
limited to the declaratory order: A structural interdict
was not granted on the basis there was no reason to
believe the government would not respect the courts
order. The court awarded declaratory relief combined

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 with injunctions removing existing restrictions on the
availability of the drug Nevirapine in public hospitals
for preventative treatment of HIV.

7. National Coalition for Gay and Lesbian - National Coalition GLE v Minister of Justice case: The
Equality v Minister of Justice 1999 common-law offence of sodomy declared
unconstitutional & invalid.

8. S v Niemand 2002 - S v Niemand: CC found provisions allowing habitual

criminals to be incarcerated for indefinite period to be
unconstitutional. It was possible to cure the legislature
by reading in a maximum period of incarceration of 15
yrs.

9. S v Manamela 2000 - S v Manamela: CC held the remedy is not confined to

cases where the provision has been found under-
inclusive. It was used to narrow the reach of a provision
that unduly invaded protected rights.

10. Dawood v Minister of Home Affairs 2000 - Dawood v Minister of Home Affairs: The principle of
separation of powers was the underlying factor for CC
reluctance to use reading-in to cure the legislation.

11. Coetzee v Minister of Safety & Security - Coetzee v Government of the RSA: Laid the groundwork
2003, Coetzee v Government of RSA 1995 in the following terms;

The trite test can be applies: if the good is not dependent

on the bad and can be separated, one gives effect to the
remaining good if it still gives effect to the main
objective of the statute.

The test has two parts: 1. Is it possible to sever the

invalid provision? 2. If so, is what remains giving effect
to the purpose of the legislative scheme?

12. Ferreira v Levin NO 1996 - Ferreira v Lewin NO: Example of notional severance:
CC order did not strike out words of the Companies Act,
but stating the effect of the order will be to render
inadmissible in criminal proceedings against a person
previously examined pursuant to the provisions.

13. National Coalition for Gay and Lesbian - Effective relief not only for litigant but similarly situated
Equality v Minister of Home Affairs 2000 people.

- When a court strikes down / read in words (NCGLE v

Minister Home Affairs) its order is not the final word,
the legislature may respond by amending statue, may
undo order within limits of the Constitution. Therefore
courts prefer narrow rulings in constitutional cases. –
Broad rulings together with remedies „demanded‟ by
Constitution may restrict the legislatures ability to

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 reform the law & violate the separation of powers
doctrine.

14. Hoffmann v SAA 2001 - Hoffmann v SAA: CC: Ordered instatement of person
turned down on HIV +ve basis – this remedy strikes
effectively at unfair discrimination – general rule the
person to be placed in the same position he would have
been but for the wrong suffered.

15. City Council of Pretoria v Walker 1998 - City Council of Pretoria v Walker: Found the selective
institution of legal proceedings by the council amounted
to a breach of respondents right not to be unfairly
discriminated against. (Council did not enforce its claims
against township residents). The breach of equality right
did not entitle the defendant to a dismissal of the councils
claims (absolution from the instance).

16. Carmichele v Minister of Safety & Security - In cases where delictual damages are not available,
2001 constitutional damages will not necessarily be awarded.
Held that the SA law of delict was flexible and should
be broad enough to provide relief for breach of
constitutional rights. Only in Carmichele did court
develop the existing delictual remedies.

Study Unit 9: Equality

1. The difference between discrimination and - Prinsloo v van der Linde: CC distinguished between
unfair discrimination: differentiation on grounds affecting persons dignity,
worth as human beings and on grounds that do not.
Prinsloo v van der Linde 1997: (Mere differentiation).

Where differentiation does not impact human dignity –

applicant restricted to arguing violation in terms of s
9(1).

Case: Distinction drawn between people occupying land

in fire control areas and those outside. The Fire Act: If
fire occurred outside fire control area – negligence is
presumed until the contrary is proven. (Does not apply
to those living inside). The court required state to act in
rational manner – prohibiting it from making arbitrary
differentiations serving no legitimate governmental
purpose.

Regulations within fire control areas were to prevent

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 fires from spreading therefore people outside were
required to be more vigilant: A rational basis for
differentiation thus existed. The differentiation did not
impair the dignity of people and did not amount to
unfair discrimination.

2. Pretoria City Council v Walker 1998: Unfair discrimination:

- Pretoria City Council v Walker: Metering rates for

urban Pretoria – flat rates for rural surrounding areas
despite their electricity consumption. Walker argued
the residents of Old Pretoria were subsidising the rates
for the rural areas. Argued only the residents of old
Pretoria were singled out by the council for legation
action to recover arrears. The CC held the actions of
the Council were indirect discriminations on the listed
ground of race. However the first set of arguments
(subsidy) was not unfair, while the second (recovery of
debts) was unfair. The Court took into account Walker
was white, therefore had not been previously
disadvantaged. In an economic sense his group was
neither disadvantaged nor vulnerable. The second
question – what was the purpose of the Councils
actions? – Circumstances dictated the action as it
inherited townships that were not equipped with
meters, while old Pretoria houses were.

The flat rate was an interim measure until meters could

be installed. The CC disagreed with the court a quo that
the different rates for the same services are always
unfair. The CC held the different rates was not unfair,
the subsidy was temporary and would be phased out.
There was not invasion of the respondent‟s dignity. The
CC held that the selective recovery of debts was unfair
discrimination.

3. Fraser v Children’s Court Pretoria North Unfair gender discrimination to require consent of mother
1997: but not farther to adoption of extra-marital children.

4. National Coalition for Gay and Lesbian Provisions of the Aliens Control Act found to constitute
Equality v Minister of Home Affairs 2000: unfair discrimination on the grounds of sexual
orientation.

5. Direct and indirect discrimination: Local authorities have looked to well-serviced, wealthier
formally all white areas to subsidies the improvement of
Beukes v Krugersdorp Transitional Local the dire state of public facilities and black townships. The
Council (TLC) 1996: increase in rates has led to boycotts in white areas.

Flat rates in townships have indirect racial impact but not

unfair discrimination because economically and socially

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 justifiable.

The TLC argued the distinction was not based on colour

but on practical considerations.

The difference in charges had an indirect racial impact

however the court held that the discrimination was not
unfair as it was a temporary interim measure that had to
be implemented for practical reasons due to inadequate
metering facilities.

6. Pretoria City Council v Walker 1998: Applicant argued discrimination on the basis of race. On
the face of it, the Council‟s policy was neutral on the
subject of race. It did not expressly differentiate between
white and black ratepayers but imposed more
burdensome tariff structures on the suburbs than it did on
the townships. However its effect was to target white
residents and subject them to a burden that black
residents did not suffer.

Constituted indirect discrimination on the grounds of

race.

7. The enquiry into a violation of the equity - Harksen v Lane: Court held the following factors must
clause: be taken into account in determining unfairness on
analogous ground:
Harksen v Lane NO 1998:
1. The position of the complainant in society – whether
victim of past patterns of discrimination.

2. The nature of the provision – the power / purpose

sought – is it a worthy and important societal goal and
a consequence of the infringement of the right.

3. The extent to which the rights have been impaired –

whether there has been impairment of fundamental
dignity.

8. Larbi-Odam v MEC for Education 1998: CC found that a provincial regulation that prevented all
non-citizens from being appointed into permanent
teaching poses was unfair discrimination as it included
permanent residents on the ground of citizenship.

9. Affirmative Action: - Public Servants’ Association of SA v Minister of Justice

1997: No white males (all with considerable work
Public Servants Association of SA v Minister experience) who had applied for senior posts in the
of Justice 1997: Dept. of Justice were interviewed for vacant positions.
The evidence was that the department was oversupplied
with white males – a policy had been adopted to
address the situation by not considering white males for

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 posts.

The HC held – although the actions formed an AA

programmed, they were haphazard, random and
overhasty. They therefore could not be said to be
„designed‟ to achieve affirmative action goals. The
actions did not constitute „measures designed to
achieve AA‟ and were invalidated as unfair
discrimination on the basis of race and gender.

HC held the words „design‟ and „achieve‟ denotes a

causal connection between the designed measures and
the objectives.

10. Motala v University of Natal 1995: - Motala v University of Natal 1995: Indian student who
obtained 5 distinctions was refused admission into
medical school. The medical school had decided to
limit Indians students to 40. This was because poor
standards of education available to African students
meant that a merit-based entrance would result in very
few African applicants being accepted into medical
school. Argued that Indian persons were also
previously discriminated against – the programmed
favoured African students over Indian students and
amounted to unfair discrimination.

The court held the admission policy was designed to

protect / advance disadvantaged groups who were
previously discriminated against. The court held: There
was not doubt Indians were discriminated against but
under the four tier system of apartheid education
Africans were left worst off than Indians. Therefore the
selection system is not counter to the provisions of the
interim Constitution.

Study Unit 10: Human dignity

1. S v Makwanyane 1995 CC described the right to dignity and the right to life as
the most important rights.

The right to dignity is the relevant factor when

determining whether punishment is cruel, inhuman or
degrading.

Judge indicated the death sentence could be replaced with

a severe punishment of a long terms imprisonment.

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2. National Coalition for Gay and Lesbian CC Invalidated the common law criminalization of
Equality v Minister of Justice 1999 sodomy as it was a violation of the right to dignity.

3. S v Tcoeib 1996: Namibian SC held that life imprisonment was not

unconstitutional. It may in a particular case be so when
the sentence is disproportionate to the crime.

4. Dawood v Minster of Home Affairs 2000 - Judge held the right to dignity must be interpreted to
afford protection to the institutions of marriage and
family life. This extends to the right of spouses to live
together as spouses in community of life. The excessive
fee for applications for immigration permits violated this
right to the extent it applied to the foreign non-resident
spouse of a permanent resident of SA. The fee had the
effect of separating poor families from one another.
(Spouse to return to country of origin and SA spouse too
poor to follow).

- The prescribed fee of R10 000.00 was aimed at deterring

marriages of convenience therefore preventing illegal
immigration.

- The Dpt. Home Affairs failed to prove the method

effective – there were less restrictive ways to determine
whether the marriage was genuine.

- The CC did not consider the application fee but

invalidated the section of the Aliens Control Act
requiring a foreign spouse (who wishes to apply for an
immigration permit from within SA) to possess a valid
temporary residence permit.

5. Booysen v Minister of Home Affairs 2001: - Application of the Dawood ruling. The CC held
provisions of the Aliens Control Act requiring work
permits for foreign spouses of SA citizens to be issued
outside the Republic were an unconstitutional violation
of the right to dignity of South Africans and their
foreign spouses.

6. Bhe v Magistrate, Khayelitsha 2005: - The customary law rule of male primogeniture in terms
of which wives and daughters are not allowed to inherit
where the testator had died without a will.

- The CC found rule discriminates unfairly on the grounds

of gender and infringes the right of woman to human
dignity as it implies women are not competent to own
and administer property.

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Study Unit 11: Socio-economic rights
1. Justiciability of socio-economic rights, the
doctrine of separation of powers,
reasonable legislative measures and
availability of resources:

In re Certification of the Constitution of the

Republic of SA Constitution Act 1996:

2. Soobramoney v Minister of Health, KZN - CC to determine ;

1998:
1. Whether the right in section 27(1) [the right to have
access to health care, food and water] was violated.

2. What emergency medical treatment amounted to for the

purpose of section 27(3).

3. Which criteria had to be used to determine the

availability of resources.

Held: A person suffering from chronic renal failure and

requiring dialysis x 2/3 per week to remain alive was not
an emergency calling for immediate remedial treatment. It
was a chronic condition therefore did not give a person a
right to be admitted to the dialysis programme at a state
hospital. The issue was the extent of the resources
available for the realisation of the right.

3. Government of RSA v Grootboom 2002: Case concerned s 26 [everyone has the right to adequate
housing]. Important to note the section recognises „a right
to have access to adequate housing‟ as opposed to „a right
to adequate housing‟ – The distinction makes it clear,
there is no unqualified obligation on the state to provide
free housing on demand for all members of the public.

CC: Found governments measures to be inadequate as no

provision for temporary housing was made. The court
used the reasonableness value to test the measure.

4. Minister of Health and Others v Treatment Issue of governments duty to provide Nevirapine to lower
Action Campaign and Others 2002: the risk of MTCT of the virus during childbirth.

S 27(1): Right to access to health care services – everyone

has the right to access appropriate social assistance if
unable to support themselves or their dependents. The
respondents requested the drug be available in public
hospitals and not just research and training clinics.

CC: Found state policy to be unconstitutional as it did not

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 fulfil the health care guarantee in the Bill of Rights. The
court rejected the state‟s argument that it was infringing
on the separation of powers doctrine. Court ordered the
state to remove the restrictions preventing Nevirapine
bing made available at public hospitals.

5. Sections 26(2) and 26(3): Grootboom: CC ground breaking decision:

Government of the RSA v Grootboom 2000: People lived in appalling conditions, moved out and
occupied property illegally – they were evicted and left
homeless. The state failed to produce temporary housing
while implementing the greater policy to provide adequate
housing.

Court considered the extent of the positive duties placed

on the state by s 26(2) of the Constitution; the right to
adequate housing by requiring the state to take reasonable
legislative and other measures within its available
resources to achieve progressive realisation of that right.
According to the court, the formulation of the socio-
economic rights delimits the state‟s positive obligations,
qualifying them in three ways;

1. The obligation to take reasonable legislative

and other measures;

Reasonableness of the measure can be evaluated by a

court. The state must create legal framework that grants
individuals the legal status rights and privileges that will
enable them to pursue their rights.

The courts tests this by requiring the state to explain the

measures chosen and to give account of its progress in
implementing these measures.

2. To achieve progressive realisation of the right;

State required to realise & fulfil a right progressively or

over a period of time.

Accepted state cannot take all necessary steps

immediately, but should be able to give account of the
progress made

3. Within available resources;

If state unable to fulfil obligation due to limited resources

does not amount to violation of the right. Should
resources become available later, they must fulfil the
right.

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 Places obligation on state to justify the use of public
resources to its citizens. State not left to its own devices to
decide allocation – it must fulfil the core minimum
obligation, if unable – must explain why.

6. Ross v South Penninsula Minicipality 2000: Premises not occupied for residential purposes cannot
qualify as a home.

What is the effect of the common law relating to

evictions.

The common law eviction procedures were insufficient to

comply with s 26(3). Additional relevant circumstances
had to be alleged by the plaintiff.

7. Brisley v Drotsky 2002: SCA: An appeal arising from an order of eviction from
rented premises, the lessee argued that insufficient
„relevant circumstances‟ had to be considered by the court
a quo.

Held: Section 26(3) does not allow courts to refuse an

eviction order where the owner is otherwise entitled to
such an order (In terms of the common law or the
statutory law).

So, unless the evictee has a common-law or statutory right

of occupation, an eviction must be granted.

8. Section 27:

Soobramoney v Minister of Health, KZN

1998:

9. TAC case:

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