1
2
Contents
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Nov 2014
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QUESTION 1 – SECTION A
1.1 (4 marks)
1.2 (4 marks)
1.3 (2 marks)
1.4 (1 mark)
1.5 (1 mark)
SECTION B
1.6 List the requirements that have to be taken in order to obtain locus standi when a person is
seeking to act in the public interest (2 marks)
It must be shown that the person is acting in the public interest.
It must be shown that the public has sufficient interest in the requested remedy.
1.7 Differentiate the following concepts: Reading in and Reading down (3 marks)
Reading in is a remedy used by courts to address constitutional inconsistencies by adding
words to a statutory provision that is missing crucial elements.
Reading down is a method of statutory interpretation aimed at avoiding inconsistency
between a statute and the Constitution by narrowing the scope of a provision without altering
its meaning.
Reading in is primarily applied when the inconsistency arises from an omission, and
additional words must be inserted to make the statutory provision consistent with the
Constitution.
1.8 Discuss whether, and to what extent, a juristic person can rely on the protection of the Bill of
Rights. For instance, can Noseweek, an independent newspaper, invoke the right to life and the right
to freedom of expression? (5 marks)
In the First Certification Judgment, the Court emphasized that many universally accepted
fundamental rights are only fully recognized if they are extended to juristic persons, just as
they are to natural persons.
Section 8(4) of the Constitution provides for the protection of juristic persons. These entities
are entitled to rights in the Bill of Rights to the extent required by the nature of the right and
the nature of the juristic person.
In determining whether a juristic person can claim protection under a specific right, two
factors must be considered: the nature of the right and the nature of the juristic person.
Some fundamental rights, such as the right to life, cannot be applied to juristic persons
because they are specifically designed for human beings. Therefore, Noseweek, as a juristic
, 3
person, cannot invoke the right to life, though it may approach a competent court if the
requirements of Section 38 have been met.
Other rights, like the right to freedom of expression, are specifically afforded to the media,
including entities like Noseweek, which are often controlled by juristic persons. This means
that Noseweek can invoke the right to freedom of expression under the Bill of Rights.
1.9 What is the relationship between the Constitution and the Bill of Rights? (5 marks)
The Bill of Rights (Chapter 2) is an integral part of the Constitution. It can only be fully
understood within the broader context of the Constitution itself.
Like the Constitution, the Bill of Rights is entrenched, enforceable, and justiciable,
meaning that the rights contained in it cannot easily be altered or disregarded.
The Bill of Rights outlines the fundamental rights and freedoms that every person is entitled
to, and its provisions apply to both natural persons (human beings) and juristic persons
(entities such as corporations and organizations).
As part of the Constitution, the Bill of Rights has binding legal force, and any violations of
the rights it guarantees can be challenged in courts.
The Bill of Rights plays a key role in protecting the rights of individuals and groups from
violations by the state or other entities, ensuring a legal framework for addressing
infringements of fundamental freedoms.
QUESTION 2
2.1 Discuss whether or not magistrates’ courts can develop common law in accordance with the
Constitution (10 marks)
Introduction:
Section 8(3) of the Constitution mandates that courts, when applying the Bill of Rights, must, where
necessary, develop common law rules to limit rights, provided such limitations align with the
provisions of Section 36 of the Constitution. This implies that magistrates' courts are bound to
respect constitutional rights, just like higher courts, in terms of Section 8(1). Therefore, magistrates
presiding over criminal trials must ensure that proceedings align with constitutional principles,
particularly those guaranteeing the fair trial rights of the accused. Additionally, Section 39(2)
imposes a duty on all courts to promote the spirit, purport, and objects of the Bill of Rights when
developing the common law. Magistrates' courts, as outlined in Section 166, are recognized as part
of the judicial system.
However, limitations: Despite these provisions, Section 173 specifically grants the Constitutional
Court, the Supreme Court of Appeal, and the High Courts the power to develop common law,
, 4
considering the interests of justice. Magistrates' courts are excluded from this power. There are
several reasons for this exclusion:
1. Doctrine of Precedent:
Magistrates’ courts are limited by the principle of precedent. Any pronouncement on the
validity of common law criminal principles by magistrates would risk creating a fragmented
legal system. The coherent operation of the common law system depends on the consistent
application of legal principles by higher courts, ensuring uniformity, stability, and respect for
vested rights.
2. Effect on Legal Order:
The effective development of common law criminal principles requires a unified legal order.
Magistrates’ courts, with their limited jurisdiction, cannot develop common law in a way that
does not lead to uncertainty or confusion. The doctrine of stare decisis ensures that the law
maintains certainty, protecting the rights and legitimate expectations of individuals, as well
as upholding the dignity of the judicial system.
3. Lack of Constitutional or Legislative Mandate for Referrals:
There is no constitutional or legislative mandate for magistrates to refer cases where common
law development may be required to higher courts for confirmation. Such a referral could
mitigate the potential negative effects of inconsistent legal development.
Conclusion:
While magistrates' courts are obliged to apply the Constitution in their proceedings, they are not
authorized to independently develop the common law. This role is reserved for higher courts to
maintain legal coherence and avoid the fragmentation of the legal system.
2.2 Discuss the Constitutional Court’s recent decision in Hassam v Jacobs specifically with regard
to the application of the equality test as laid down in Harksen v Lane (10 marks)
Introduction:
The application of the equality test as established in Harksen v Lane was vividly illustrated in the
Constitutional Court’s decision in Hassam v Jacobs. The case involved the confirmation of the
declaration of constitutional invalidity of certain sections of the Intestate Succession Act 81 of 1987,
which excluded widows of polygynous marriages, conducted according to Muslim rites, from
protection under the Act.
Facts and Issues: The applicant, a widow from a polygynous Muslim marriage, argued that the
exclusion of her and others in similar circumstances from the Intestate Succession Act amounted to
unfair discrimination based on gender, marital status, and religion.
Equality Test - Harksen v Lane Framework: The Constitutional Court followed the Harksen v
Lane approach, which establishes a two-stage test for determining whether discrimination exists
under Section 9 of the Constitution. The test involves:
2
Contents
Nov 2014 ....................................................................................... Error! Bookmark not defined.
June 2014 ....................................................................................... Error! Bookmark not defined.
Nov 2013 ....................................................................................... Error! Bookmark not defined.
June 2013 ....................................................................................... Error! Bookmark not defined.
3
Nov 2014
, 2
QUESTION 1 – SECTION A
1.1 (4 marks)
1.2 (4 marks)
1.3 (2 marks)
1.4 (1 mark)
1.5 (1 mark)
SECTION B
1.6 List the requirements that have to be taken in order to obtain locus standi when a person is
seeking to act in the public interest (2 marks)
It must be shown that the person is acting in the public interest.
It must be shown that the public has sufficient interest in the requested remedy.
1.7 Differentiate the following concepts: Reading in and Reading down (3 marks)
Reading in is a remedy used by courts to address constitutional inconsistencies by adding
words to a statutory provision that is missing crucial elements.
Reading down is a method of statutory interpretation aimed at avoiding inconsistency
between a statute and the Constitution by narrowing the scope of a provision without altering
its meaning.
Reading in is primarily applied when the inconsistency arises from an omission, and
additional words must be inserted to make the statutory provision consistent with the
Constitution.
1.8 Discuss whether, and to what extent, a juristic person can rely on the protection of the Bill of
Rights. For instance, can Noseweek, an independent newspaper, invoke the right to life and the right
to freedom of expression? (5 marks)
In the First Certification Judgment, the Court emphasized that many universally accepted
fundamental rights are only fully recognized if they are extended to juristic persons, just as
they are to natural persons.
Section 8(4) of the Constitution provides for the protection of juristic persons. These entities
are entitled to rights in the Bill of Rights to the extent required by the nature of the right and
the nature of the juristic person.
In determining whether a juristic person can claim protection under a specific right, two
factors must be considered: the nature of the right and the nature of the juristic person.
Some fundamental rights, such as the right to life, cannot be applied to juristic persons
because they are specifically designed for human beings. Therefore, Noseweek, as a juristic
, 3
person, cannot invoke the right to life, though it may approach a competent court if the
requirements of Section 38 have been met.
Other rights, like the right to freedom of expression, are specifically afforded to the media,
including entities like Noseweek, which are often controlled by juristic persons. This means
that Noseweek can invoke the right to freedom of expression under the Bill of Rights.
1.9 What is the relationship between the Constitution and the Bill of Rights? (5 marks)
The Bill of Rights (Chapter 2) is an integral part of the Constitution. It can only be fully
understood within the broader context of the Constitution itself.
Like the Constitution, the Bill of Rights is entrenched, enforceable, and justiciable,
meaning that the rights contained in it cannot easily be altered or disregarded.
The Bill of Rights outlines the fundamental rights and freedoms that every person is entitled
to, and its provisions apply to both natural persons (human beings) and juristic persons
(entities such as corporations and organizations).
As part of the Constitution, the Bill of Rights has binding legal force, and any violations of
the rights it guarantees can be challenged in courts.
The Bill of Rights plays a key role in protecting the rights of individuals and groups from
violations by the state or other entities, ensuring a legal framework for addressing
infringements of fundamental freedoms.
QUESTION 2
2.1 Discuss whether or not magistrates’ courts can develop common law in accordance with the
Constitution (10 marks)
Introduction:
Section 8(3) of the Constitution mandates that courts, when applying the Bill of Rights, must, where
necessary, develop common law rules to limit rights, provided such limitations align with the
provisions of Section 36 of the Constitution. This implies that magistrates' courts are bound to
respect constitutional rights, just like higher courts, in terms of Section 8(1). Therefore, magistrates
presiding over criminal trials must ensure that proceedings align with constitutional principles,
particularly those guaranteeing the fair trial rights of the accused. Additionally, Section 39(2)
imposes a duty on all courts to promote the spirit, purport, and objects of the Bill of Rights when
developing the common law. Magistrates' courts, as outlined in Section 166, are recognized as part
of the judicial system.
However, limitations: Despite these provisions, Section 173 specifically grants the Constitutional
Court, the Supreme Court of Appeal, and the High Courts the power to develop common law,
, 4
considering the interests of justice. Magistrates' courts are excluded from this power. There are
several reasons for this exclusion:
1. Doctrine of Precedent:
Magistrates’ courts are limited by the principle of precedent. Any pronouncement on the
validity of common law criminal principles by magistrates would risk creating a fragmented
legal system. The coherent operation of the common law system depends on the consistent
application of legal principles by higher courts, ensuring uniformity, stability, and respect for
vested rights.
2. Effect on Legal Order:
The effective development of common law criminal principles requires a unified legal order.
Magistrates’ courts, with their limited jurisdiction, cannot develop common law in a way that
does not lead to uncertainty or confusion. The doctrine of stare decisis ensures that the law
maintains certainty, protecting the rights and legitimate expectations of individuals, as well
as upholding the dignity of the judicial system.
3. Lack of Constitutional or Legislative Mandate for Referrals:
There is no constitutional or legislative mandate for magistrates to refer cases where common
law development may be required to higher courts for confirmation. Such a referral could
mitigate the potential negative effects of inconsistent legal development.
Conclusion:
While magistrates' courts are obliged to apply the Constitution in their proceedings, they are not
authorized to independently develop the common law. This role is reserved for higher courts to
maintain legal coherence and avoid the fragmentation of the legal system.
2.2 Discuss the Constitutional Court’s recent decision in Hassam v Jacobs specifically with regard
to the application of the equality test as laid down in Harksen v Lane (10 marks)
Introduction:
The application of the equality test as established in Harksen v Lane was vividly illustrated in the
Constitutional Court’s decision in Hassam v Jacobs. The case involved the confirmation of the
declaration of constitutional invalidity of certain sections of the Intestate Succession Act 81 of 1987,
which excluded widows of polygynous marriages, conducted according to Muslim rites, from
protection under the Act.
Facts and Issues: The applicant, a widow from a polygynous Muslim marriage, argued that the
exclusion of her and others in similar circumstances from the Intestate Succession Act amounted to
unfair discrimination based on gender, marital status, and religion.
Equality Test - Harksen v Lane Framework: The Constitutional Court followed the Harksen v
Lane approach, which establishes a two-stage test for determining whether discrimination exists
under Section 9 of the Constitution. The test involves:
