MODULE :FUR2601
,FUR2601 Exam Study Pack
Contains:
• Comprehensive Exam Summaries &
Study Notes
• Exam Questions & Answers
,FUR2601 - Examination preparation
COMMENTARY ON EXAMINATION 1
QUESTION 1
(a) 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)
Possible answer
(i) The procedural issues are as follows:
● Application
(i)Is the Bill of Rights applicable to the dispute between the parties? Here, 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 particular
circumstances.
(ii)In what way is the Bill of Rights applicable to the dispute?
(iii)In this enquiry, it must be determined whether the Bill of Rights has direct or indirect application.
● Justiciability
(iv)Is the issue justiciable and does the applicant in the matter have standing in respect of the relief sought?
● Jurisdiction
(v)Does the court have jurisdiction to grant the relief claimed
(ii) The substantive issues are as follows:
The court must determine whether the law or the conduct of the respondent infringed the rights of the applicant.
If yes, the court will determine whether the infringement is a justifiable limitation of the right in terms of section 36.
If yes, the conduct of the respondent is not unconstitutional. If no, it is unconstitutional and an appropriate remedy
must be sought.
The remaining issues regarding fundamental rights litigation which you can be examined on are those of remedies
and onus of proof.
(iii) Remedies
The issue of remedies will be dealt with at the end of the substantive stage, where the court will establish what the
appropriate remedy in the particular circumstances will be.
(iv) Onus of proof
In the procedural stage, the onus is on the applicant to satisfy all the requirements. In the substantive stage, the onus
is first on the applicant to show that an infringement of a right has taken place.
The onus then shifts to the respondent to show that the infringement is a justifiable limitation of the right in terms of
section 36.
(b) State whether the following statements are true or false. Give reasons for your answers.
NB: CONFINE YOURSELF TO THE APPLICATION OF THE BILL OF RIGHTS. DO NOT DISCUSS THE MERITS OF
THE CASE.
(i) It is not necessary for the rules of Elite Secondary School (a private school) to comply with the provisions of the
Bill of Rights. (3)
(ii) The Department of Education is one of the few state departments that is not bound by the Bill of Rights. ( 2)
(iii) The immigration authorities are entitled to deport all illegal immigrants immediately, as they are not protected by
the Constitution. (3)
(iv) The Happy Sunday Liquor Store may trade on Sundays, as it is protected by section 15 of the Constitution, which
makes provision for the right to freedom of religion. (3)
(v) 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 or her home without a court order (in terms of s
26(3)). (4)
Possible answer
(i) 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 the definition in 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 in terms of section 8(2),
depending on the nature of the right and the nature of the duty imposed by the right.
(ii) False.
In terms of section 8(1), the executive and all organs of state are bound by the Bill of Rights.
(iii) False.
In terms of section 33, every person (therefore, also an illegal immigrant) has the right to just administrative action.
, (iv) False.
The liquor store as a juristic person (s 8(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.
(v) 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), then, is 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.
NOTE: You will get NO marks if you simply write “True” or “False”, without giving reasons for your answer –
even if the answer is correct!
QUESTION 2
(a) 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 judgments of
international courts such as the European Court of Human Rights (ECHR). “Foreign law” refers to foreign case law
(i.e., contains references to precedents of other countries) and also foreign legislation and other constitutions, but
mainly case law.
In S v Makwanyane, the Constitutional Court stated that both binding and nonbinding public international law may be
used as tools of interpretation. International law provides a framework within which rights can be evaluated and
understood. It can also help to interpret rights, to determine their content and scope, and to give guidance during
interpretation.
In terms of 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. In Makwanyane, the Court stated that foreign case law will not
necessarily provide a safe guide for interpreting the Bill of Rights. (You will also be given marks for any elaboration on
this point.)
(b) Give a brief explanation of what is meant by “the contextual interpretation of a constitution”. (5)
Contextual interpretation is a value-based approach. In terms of this approach, rights and words are understood not
only in their social and historical context, but also in their textual setting. This is known as systematic interpretation,
where the document is read as a whole together with its surrounding circumstances, and not in isolation. An example
of this can be seen in S v Makwanyane, where the Court treated the right to life, the right to equality and the right to
human dignity as collectively giving meaning to the prohibition of cruel, inhuman or degrading treatment or
punishment. Credit was also given for relevant references to cases, such as Ferreira v Levin and Soobramoney v
Minister of Health (KwaZulu-Natal).
Contextual interpretation must be used with caution, as context may be used to limit, rather than interpret, rights, or as
a short cut to eliminate “irrelevant” fundamental rights.
(c) Section 38 of the Constitution provides that a court may grant “appropriate relief” where a right in the
Bill of Rights has been infringed. Explain this term briefly, giving examples of such relief. (5)
According to the Constitutional Court in Fose, the court must decide what would be appropriate in the circumstances
before it. “Appropriate relief” refers to the relief that is necessary in order to protect and enforce the rights in the
Constitution. In terms of section 172, the court must declare any law or conduct that is inconsistent with the
Constitution invalid to the extent of its inconsistency.
However, the courts must consider the effect of the relief on society at large. Section 38 therefore promotes a flexible
approach. Examples of this relief are invalidation, constitutional damages, administrative law remedies, interdicts,
mandamus, declaration of rights, exclusion of evidence, et cetera.
(d) Discuss two ways in which the courts can regulate the impact of a declaration of invalidity in terms of
section 172(1)(a) and (b) of the Constitution. (10)
,FUR2601 Exam Study Pack
Contains:
• Comprehensive Exam Summaries &
Study Notes
• Exam Questions & Answers
,FUR2601 - Examination preparation
COMMENTARY ON EXAMINATION 1
QUESTION 1
(a) 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)
Possible answer
(i) The procedural issues are as follows:
● Application
(i)Is the Bill of Rights applicable to the dispute between the parties? Here, 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 particular
circumstances.
(ii)In what way is the Bill of Rights applicable to the dispute?
(iii)In this enquiry, it must be determined whether the Bill of Rights has direct or indirect application.
● Justiciability
(iv)Is the issue justiciable and does the applicant in the matter have standing in respect of the relief sought?
● Jurisdiction
(v)Does the court have jurisdiction to grant the relief claimed
(ii) The substantive issues are as follows:
The court must determine whether the law or the conduct of the respondent infringed the rights of the applicant.
If yes, the court will determine whether the infringement is a justifiable limitation of the right in terms of section 36.
If yes, the conduct of the respondent is not unconstitutional. If no, it is unconstitutional and an appropriate remedy
must be sought.
The remaining issues regarding fundamental rights litigation which you can be examined on are those of remedies
and onus of proof.
(iii) Remedies
The issue of remedies will be dealt with at the end of the substantive stage, where the court will establish what the
appropriate remedy in the particular circumstances will be.
(iv) Onus of proof
In the procedural stage, the onus is on the applicant to satisfy all the requirements. In the substantive stage, the onus
is first on the applicant to show that an infringement of a right has taken place.
The onus then shifts to the respondent to show that the infringement is a justifiable limitation of the right in terms of
section 36.
(b) State whether the following statements are true or false. Give reasons for your answers.
NB: CONFINE YOURSELF TO THE APPLICATION OF THE BILL OF RIGHTS. DO NOT DISCUSS THE MERITS OF
THE CASE.
(i) It is not necessary for the rules of Elite Secondary School (a private school) to comply with the provisions of the
Bill of Rights. (3)
(ii) The Department of Education is one of the few state departments that is not bound by the Bill of Rights. ( 2)
(iii) The immigration authorities are entitled to deport all illegal immigrants immediately, as they are not protected by
the Constitution. (3)
(iv) The Happy Sunday Liquor Store may trade on Sundays, as it is protected by section 15 of the Constitution, which
makes provision for the right to freedom of religion. (3)
(v) 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 or her home without a court order (in terms of s
26(3)). (4)
Possible answer
(i) 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 the definition in 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 in terms of section 8(2),
depending on the nature of the right and the nature of the duty imposed by the right.
(ii) False.
In terms of section 8(1), the executive and all organs of state are bound by the Bill of Rights.
(iii) False.
In terms of section 33, every person (therefore, also an illegal immigrant) has the right to just administrative action.
, (iv) False.
The liquor store as a juristic person (s 8(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.
(v) 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), then, is 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.
NOTE: You will get NO marks if you simply write “True” or “False”, without giving reasons for your answer –
even if the answer is correct!
QUESTION 2
(a) 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 judgments of
international courts such as the European Court of Human Rights (ECHR). “Foreign law” refers to foreign case law
(i.e., contains references to precedents of other countries) and also foreign legislation and other constitutions, but
mainly case law.
In S v Makwanyane, the Constitutional Court stated that both binding and nonbinding public international law may be
used as tools of interpretation. International law provides a framework within which rights can be evaluated and
understood. It can also help to interpret rights, to determine their content and scope, and to give guidance during
interpretation.
In terms of 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. In Makwanyane, the Court stated that foreign case law will not
necessarily provide a safe guide for interpreting the Bill of Rights. (You will also be given marks for any elaboration on
this point.)
(b) Give a brief explanation of what is meant by “the contextual interpretation of a constitution”. (5)
Contextual interpretation is a value-based approach. In terms of this approach, rights and words are understood not
only in their social and historical context, but also in their textual setting. This is known as systematic interpretation,
where the document is read as a whole together with its surrounding circumstances, and not in isolation. An example
of this can be seen in S v Makwanyane, where the Court treated the right to life, the right to equality and the right to
human dignity as collectively giving meaning to the prohibition of cruel, inhuman or degrading treatment or
punishment. Credit was also given for relevant references to cases, such as Ferreira v Levin and Soobramoney v
Minister of Health (KwaZulu-Natal).
Contextual interpretation must be used with caution, as context may be used to limit, rather than interpret, rights, or as
a short cut to eliminate “irrelevant” fundamental rights.
(c) Section 38 of the Constitution provides that a court may grant “appropriate relief” where a right in the
Bill of Rights has been infringed. Explain this term briefly, giving examples of such relief. (5)
According to the Constitutional Court in Fose, the court must decide what would be appropriate in the circumstances
before it. “Appropriate relief” refers to the relief that is necessary in order to protect and enforce the rights in the
Constitution. In terms of section 172, the court must declare any law or conduct that is inconsistent with the
Constitution invalid to the extent of its inconsistency.
However, the courts must consider the effect of the relief on society at large. Section 38 therefore promotes a flexible
approach. Examples of this relief are invalidation, constitutional damages, administrative law remedies, interdicts,
mandamus, declaration of rights, exclusion of evidence, et cetera.
(d) Discuss two ways in which the courts can regulate the impact of a declaration of invalidity in terms of
section 172(1)(a) and (b) of the Constitution. (10)
