CONTENTS PAGE
Q: PAPER
MAY/JUNE ECP PAPER 2021
OCT/NOV 2020
MAY/JUNE 2019
OCT/NOV 2018
MAY/JUNE 2018
OCT/NOV 2017
MAY/JUNE 2017
OCT/NOV 2016
MAY/JUNE 2016
OCT/NOV 2014
1|Page
,FUR2601 ECP PAPER MAY/JUNE 2021
Section A
1. True, according to the Constitutional Court, the key to the justiciability of
socioeconomic rights is the standard of reasonableness.
2. False, if discrimination exists on a specified ground, it is presumed unfair in terms of
section 9(5) of the Constitution. This means that the unfairness of the discrimination
does not need to be proved in this instance.
3. False, Department of Education is an organ of state. Section 8(1) of the Constitution
provides that the Bill of Rights applies to all law, and binds the legislature, the executive,
the judiciary and all organs of state.
4. False, In Coetzee the court applied the remedy of severance.
5. True, 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.
Section B
1. Formal equality refers to sameness of treatment. This implies that the law must treat
individuals in the same way regardless of their circumstances, because all persons are
equal and the actual social and economic differences between groups and individuals
are not taken into account. Conversely, substantive equality requires an examination of
the actual social and economic conditions of groups and individuals to determine
whether the Constitution's commitment to equality has been upheld. In order to achieve
substantive equality, the results and the effects of a particular rule (and not merely its
2|Page
,form) must be considered. Of particular note, in the past our society was impoverished
by the racial preferences and segregationist measures of apartheid. In the new
constitutional order there is a commitment to substantive equality, which is seen as a
core provision of the Constitution.
2. In terms of Section 8(3) of the Constitution courts are obliged 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 implies 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. What is more, 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.
It is imperative to note that 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:
Of particular note, due to the doctrine of precedent magistrates courts are constrained
in their ability to develop crimes at common law. 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 stare 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
3|Page
, higher courts for confirmation. Such a referral might mitigate the disadvantageous
factors discussed above.
3. The circumstances in which prisoners are placed necessarily mean that they will
have to tolerate greater limitations of their rights, including their right to dignity, than
other persons. But any infringement of prisoners' rights must be justifiable with
reference to the objectives of placing them in prison; that is, the prevention of crime and
the rehabilitation of offenders. In the Makwanyane case the court referred to a German
constitutional court where this court stated that while the right to human dignity
demands the humane carrying out of a sentence, it does not prevent the state from
protecting the community from dangerous criminals, even if this means incarcerating
them for life. However, the German Constitutional Court further held that the law must
provide for some prospect of parole for a prisoner sentenced to lifelong imprisonment
who has become rehabilitated during his or her time in prison; and that the law must lay
down objective criteria for granting parole.
Therefore, imprisonment does not infringe the right to human dignity as the state has to
protect the community from dangerous criminals.
4. Declaration of invalidity refers to a decision or order that invalidates law or conduct
for the violation of a fundamental right. A declaration of invalidity is a constitutional
remedy. It differs from other constitutional remedies that are awarded by courts to
resolve disputes between the parties before them. A declaration of invalidity concerns a
law or state conduct and has effects against everyone, while other constitutional
remedies have effects only between the litigants. One has to note that, this is not
discretionary remedy. Subject to various preceding steps in Bill of Rights litigation
(standing application, interpretation, and limitation), a court is obliged to declare
unconstitutional laws or conduct invalid. This obligation explains why the declaration of
invalidity has attained such a prominent position in constitutional law.
Its relationship with the supremacy clause is evident in terms of the clause(section 2 of
the Constitution) which makes the Constitution the supreme law of the Republic, any
4|Page
Q: PAPER
MAY/JUNE ECP PAPER 2021
OCT/NOV 2020
MAY/JUNE 2019
OCT/NOV 2018
MAY/JUNE 2018
OCT/NOV 2017
MAY/JUNE 2017
OCT/NOV 2016
MAY/JUNE 2016
OCT/NOV 2014
1|Page
,FUR2601 ECP PAPER MAY/JUNE 2021
Section A
1. True, according to the Constitutional Court, the key to the justiciability of
socioeconomic rights is the standard of reasonableness.
2. False, if discrimination exists on a specified ground, it is presumed unfair in terms of
section 9(5) of the Constitution. This means that the unfairness of the discrimination
does not need to be proved in this instance.
3. False, Department of Education is an organ of state. Section 8(1) of the Constitution
provides that the Bill of Rights applies to all law, and binds the legislature, the executive,
the judiciary and all organs of state.
4. False, In Coetzee the court applied the remedy of severance.
5. True, 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.
Section B
1. Formal equality refers to sameness of treatment. This implies that the law must treat
individuals in the same way regardless of their circumstances, because all persons are
equal and the actual social and economic differences between groups and individuals
are not taken into account. Conversely, substantive equality requires an examination of
the actual social and economic conditions of groups and individuals to determine
whether the Constitution's commitment to equality has been upheld. In order to achieve
substantive equality, the results and the effects of a particular rule (and not merely its
2|Page
,form) must be considered. Of particular note, in the past our society was impoverished
by the racial preferences and segregationist measures of apartheid. In the new
constitutional order there is a commitment to substantive equality, which is seen as a
core provision of the Constitution.
2. In terms of Section 8(3) of the Constitution courts are obliged 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 implies 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. What is more, 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.
It is imperative to note that 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:
Of particular note, due to the doctrine of precedent magistrates courts are constrained
in their ability to develop crimes at common law. 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 stare 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
3|Page
, higher courts for confirmation. Such a referral might mitigate the disadvantageous
factors discussed above.
3. The circumstances in which prisoners are placed necessarily mean that they will
have to tolerate greater limitations of their rights, including their right to dignity, than
other persons. But any infringement of prisoners' rights must be justifiable with
reference to the objectives of placing them in prison; that is, the prevention of crime and
the rehabilitation of offenders. In the Makwanyane case the court referred to a German
constitutional court where this court stated that while the right to human dignity
demands the humane carrying out of a sentence, it does not prevent the state from
protecting the community from dangerous criminals, even if this means incarcerating
them for life. However, the German Constitutional Court further held that the law must
provide for some prospect of parole for a prisoner sentenced to lifelong imprisonment
who has become rehabilitated during his or her time in prison; and that the law must lay
down objective criteria for granting parole.
Therefore, imprisonment does not infringe the right to human dignity as the state has to
protect the community from dangerous criminals.
4. Declaration of invalidity refers to a decision or order that invalidates law or conduct
for the violation of a fundamental right. A declaration of invalidity is a constitutional
remedy. It differs from other constitutional remedies that are awarded by courts to
resolve disputes between the parties before them. A declaration of invalidity concerns a
law or state conduct and has effects against everyone, while other constitutional
remedies have effects only between the litigants. One has to note that, this is not
discretionary remedy. Subject to various preceding steps in Bill of Rights litigation
(standing application, interpretation, and limitation), a court is obliged to declare
unconstitutional laws or conduct invalid. This obligation explains why the declaration of
invalidity has attained such a prominent position in constitutional law.
Its relationship with the supremacy clause is evident in terms of the clause(section 2 of
the Constitution) which makes the Constitution the supreme law of the Republic, any
4|Page
