FUR2601 STUDY UNIT 2 - Structure of the Bill of Rights
1. Fundamental rights litigation takes place in three distinct stages, namely
the procedural stage,
the substantive stage
and the remedies stage.: 2.1 THREE STAGES OF FUNDAMENTAL RIGHTS
LITIGATION
2. In this stage, the courts are concerned with
(i) the application of the Bill of Rights to the subject matter of the litigation,
(ii) the justiciability of the issue to be decided and the standing of the appli-
cant,
and (iii) the jurisdiction of the court to grant the relief claimed by the appli-
cant.: STAGE 1: PROCEDURAL STAGE
3. Here, it needs to be established whether the Bill of Rights applies to the
dispute between the parties.
It must be established whether the applicant is protected by the Bill of Rights
and whether the respondent is bound to act in accordance with the Bill of
Rights.
The applicant must determine which right in the Constitution protects him/her
in the particular circumstances of the case.
Section 8 of the Constitution will determine whether the respondent is bound
in the circumstances to act in accordance with the Constitution.
How does the Bill of Rights apply to the dispute? It must be determined
whether the Bill of Rights applies directly or indirectly. The general rule fol-
lowed by the courts
is that the Bill of Rights must first be applied indirectly before direct applica-
tion is considered: (i) APPLICATION
4. The issues must be ripe for decision by the court and must not be moot or
academic.
Does the applicant in the matter have standing in respect
of the particular relief sought?
The applicant must be the appropriate person to present the matter to the
court for adjudication: (ii) JUSTICIABILITY:
5. Does the court have jurisdiction to grant the relief claimed?
Only the High Court, the Supreme Court of Appeal and the Constitutional
Court have jurisdiction to adjudicate constitutional matters: (iii) JURISDIC-
TION:
6. During this stage, the court must establish whether a right in the Bill of
Rights has been violated, after considering all the facts in the case.
If the court does find that a right in the Bill of Rights has been violated, it must
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1. Fundamental rights litigation takes place in three distinct stages, namely
the procedural stage,
the substantive stage
and the remedies stage.: 2.1 THREE STAGES OF FUNDAMENTAL RIGHTS
LITIGATION
2. In this stage, the courts are concerned with
(i) the application of the Bill of Rights to the subject matter of the litigation,
(ii) the justiciability of the issue to be decided and the standing of the appli-
cant,
and (iii) the jurisdiction of the court to grant the relief claimed by the appli-
cant.: STAGE 1: PROCEDURAL STAGE
3. Here, it needs to be established whether the Bill of Rights applies to the
dispute between the parties.
It must be established whether the applicant is protected by the Bill of Rights
and whether the respondent is bound to act in accordance with the Bill of
Rights.
The applicant must determine which right in the Constitution protects him/her
in the particular circumstances of the case.
Section 8 of the Constitution will determine whether the respondent is bound
in the circumstances to act in accordance with the Constitution.
How does the Bill of Rights apply to the dispute? It must be determined
whether the Bill of Rights applies directly or indirectly. The general rule fol-
lowed by the courts
is that the Bill of Rights must first be applied indirectly before direct applica-
tion is considered: (i) APPLICATION
4. The issues must be ripe for decision by the court and must not be moot or
academic.
Does the applicant in the matter have standing in respect
of the particular relief sought?
The applicant must be the appropriate person to present the matter to the
court for adjudication: (ii) JUSTICIABILITY:
5. Does the court have jurisdiction to grant the relief claimed?
Only the High Court, the Supreme Court of Appeal and the Constitutional
Court have jurisdiction to adjudicate constitutional matters: (iii) JURISDIC-
TION:
6. During this stage, the court must establish whether a right in the Bill of
Rights has been violated, after considering all the facts in the case.
If the court does find that a right in the Bill of Rights has been violated, it must
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