FUR6201_EXAM_PREP_2021 latest updated

STUDY UNIT 1 – INTRODUCTION TO THE CONSTITIUTION AND THE BILL OF RIGHTS 1. What is the relationship between the Constitution and the Bill of Rights? (5)  The Bill of Rights (ch 2) is part and parcel of the Constitution.  It can only be properly understood in the context of the Constitution.  Like the Constitution itself, it is entrenched, enforceable and justiciable. 2. Would the following amendments to the Constitution be valid? a) Act 109 of 2005 amends section 11 (Right to life) of the Constitution by authorising Parliament to reinstate the death penalty outlawed in the Makwanyane case. The Act is adopted by one-third of the members of the National Assembly and the National Council of Provinces. (5) b) Act 96 of 2005, adopted with the same majority in Parliament and the National Council of Provinces, reinstates parliamentary sovereignty in place of constitutional supremacy provided for in section 1 of the Constitution. (5) STUDY UNIT 2 – FUNDAMENTAL RIGHTS LITIGATION (STAGES) 1. Explain the different stages of fundamental rights litigation. In your answer, refer to the procedural and substantive issues a court will have to consider (as well as remedies and onus of proof). (10) 1. The procedural issues are as follows: ● Application o 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. o In what way is the Bill of Rights applicable to the dispute? In this enquiry, it must be determined whether the Bill of Rights has direct or indirect application. ● Justiciability Is the issue justiciable and does the applicant in the matter have standing in respect of the relief sought? ● Jurisdiction Does the court have jurisdiction to grant the relief claimed? 2. The substantive issues are as follows: PrianthaNaidu®2 o The court must determine whether the law or the conduct of the respondent infringed the rights of the applicant. o If yes, the court will determine whether the infringement is a valid limitation of the right in terms of section 36. o If yes, the conduct of the respondent is not unconstitutional. o If no, it is unconstitutional and an appropriate remedy must be sought. 3. 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. 4. Onus of proof o In the procedural stage, the onus is on the applicant to satisfy all the requirements. o In the substantive stage, the onus is first on the applicant to show that an infringement of a right has taken place. o The onus then shifts to the respondent to show that the infringement is a justifiable limitation of the right in terms of section 36. WHO IS ENTITLED TO THE RIGHTS IN THE BOR? (BENEFICIARIES) S 8(2) PrianthaNaidu® 1. DOES THE BOR APPLY TO THE DISPUTE IN QUESTION? ALL NATURAL PERSONS, except where rights are reserved only for: -citizens -other categories (ex. children) JURISTIC PERSONS, depending on: -nature of right -nature of juristic person S 8(4)3 WHO IS BOUND BY THE RIGHTS IN THE BOR  WHO IS ENTITLED TO RIGHTS UNDER THE BOR 1. Franco Phile, a French soccer player, has a one-year contract to play for a South African club. Is Franco entitled to the following constitutional rights? Explain your answers briefly: (3) a) the right to life Section 11 reads: “Everyone has the right to life.” Franco is therefore entitled to this right. (a) (b) the right to administrative justice Section 33 provides: “Everyone has the right to administrative action that is lawful, reasonable and procedurally fair.” Franco is therefore entitled to this right. (b) the right to vote in general elections However, section 19 (Political rights) is applicable only to every citizen. As a noncitizen, Franco is not entitled to this right. PrianthaNaidu®