FUR2601 - Fundamental Rights Study Notes
Exam-Focused Summaries for Each Study Unit
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STUDY UNIT 1: STRUCTURE OF THE BILL OF RIGHTS
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OVERVIEW
1.Bill of Rights litigation has THREE DISTINCT STAGES:
1.1. Procedural Stage - Can the case be heard?
1.2. Substantive Stage - Was a right violated?
1.3. Remedies Stage - What should be done about it?
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2.KEY CONCEPTS YOU MUST KNOW
2.1 Justiciability
● Meaning: Can a court actually resolve this issue using legal rules?
● IMPORTANT: Don't confuse it with "justifiable".
● Justiciable = enforceable in court
● Justifiable = legally/morally capable of being justified
2.2 Jurisdiction
● Which court can hear the matter?
● Only: High Court, Supreme Court of Appeal, Constitutional Court
2.3 Onus (Burden of Proof)
● Who must prove what at each stage?
,3.THE THREE STAGES IN DETAIL
3.1 STAGE 1: PROCEDURAL STAGE
Three questions courts ask:
(i) APPLICATION
● Does the Bill of Rights apply to this dispute?
● Is the applicant protected by the Bill of Rights?
● Is the respondent bound by the Bill of Rights?
● Does it apply directly or indirectly?
(ii) JUSTICIABILITY
● Is the issue ripe for decision? (Not too early)
● Is the issue moot? (No longer relevant)
● Does the applicant have standing (locus standi)?
(iii) JURISDICTION
● Does this court have power to grant the relief?
ONUS in Procedural Stage: Applicant must prove all requirements are satisfied
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3.2 STAGE 2: SUBSTANTIVE STAGE
Two questions courts ask:
(i) INTERPRETATION
● Has the law or conduct infringed a fundamental right?
● If NO → Application dismissed
● If YES → Move to next question
(ii) LIMITATION (Section 36)
● Is the infringement a justifiable limitation?
● If YES → Conduct is constitutional (application dismissed)
● If NO → Conduct is unconstitutional → Move to remedies
,4.ONUS in Substantive Stage:
4.1. Applicant proves infringement occurred
4.2. Then ONUS SHIFTS to respondent to prove it's justified under s36
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5. STAGE 3: REMEDY
● If violation is NOT justifiable → Court grants appropriate remedy
ONUS in Remedy Stage:
● Direct application → Declaration of invalidity
● Indirect application → Ordinary legal remedies apply
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EXAM TIP
When answering problem questions, ALWAYS work through the stages in order:
1. Procedural (application, standing, jurisdiction)
2. Substantive (interpretation, limitation)
3. Remedies
—
, STUDY UNIT 2: APPLICATION
© Pebetsi Study Hub
OVERVIEW
1.First question in procedural stage: Does the Bill of Rights apply?
THREE KEY QUESTIONS:
1.1. Is the applicant entitled to rights?
1.2. Is the respondent bound?
1.3. How does it apply? (Directly or indirectly?)
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2.WHO IS PROTECTED? (Section 8)
Natural Persons
● "Everyone" = all persons (including non-citizens)
● Some rights are reserved for citizens only (e.g., right to vote - s19)
● Some rights for specific groups (children, workers)
3. Juristic Persons (Companies, etc.) - Section 8(4)
A juristic person is entitled to rights to the extent required by:
3.1. Nature of the right
3.2. Nature of the juristic person
Examples:
● SABC can claim freedom of expression (part of its daily business)
● Insurance company CANNOT claim right to life (only for humans)
● Trade unions can claim collective bargaining rights
● Close corporation can claim access to information
Important: Even if a juristic person can't claim the right itself, it may still have standing if it has
sufficient interest!
Exam-Focused Summaries for Each Study Unit
—-
STUDY UNIT 1: STRUCTURE OF THE BILL OF RIGHTS
© Pebetsi Study Hub
OVERVIEW
1.Bill of Rights litigation has THREE DISTINCT STAGES:
1.1. Procedural Stage - Can the case be heard?
1.2. Substantive Stage - Was a right violated?
1.3. Remedies Stage - What should be done about it?
---
2.KEY CONCEPTS YOU MUST KNOW
2.1 Justiciability
● Meaning: Can a court actually resolve this issue using legal rules?
● IMPORTANT: Don't confuse it with "justifiable".
● Justiciable = enforceable in court
● Justifiable = legally/morally capable of being justified
2.2 Jurisdiction
● Which court can hear the matter?
● Only: High Court, Supreme Court of Appeal, Constitutional Court
2.3 Onus (Burden of Proof)
● Who must prove what at each stage?
,3.THE THREE STAGES IN DETAIL
3.1 STAGE 1: PROCEDURAL STAGE
Three questions courts ask:
(i) APPLICATION
● Does the Bill of Rights apply to this dispute?
● Is the applicant protected by the Bill of Rights?
● Is the respondent bound by the Bill of Rights?
● Does it apply directly or indirectly?
(ii) JUSTICIABILITY
● Is the issue ripe for decision? (Not too early)
● Is the issue moot? (No longer relevant)
● Does the applicant have standing (locus standi)?
(iii) JURISDICTION
● Does this court have power to grant the relief?
ONUS in Procedural Stage: Applicant must prove all requirements are satisfied
---
3.2 STAGE 2: SUBSTANTIVE STAGE
Two questions courts ask:
(i) INTERPRETATION
● Has the law or conduct infringed a fundamental right?
● If NO → Application dismissed
● If YES → Move to next question
(ii) LIMITATION (Section 36)
● Is the infringement a justifiable limitation?
● If YES → Conduct is constitutional (application dismissed)
● If NO → Conduct is unconstitutional → Move to remedies
,4.ONUS in Substantive Stage:
4.1. Applicant proves infringement occurred
4.2. Then ONUS SHIFTS to respondent to prove it's justified under s36
---
5. STAGE 3: REMEDY
● If violation is NOT justifiable → Court grants appropriate remedy
ONUS in Remedy Stage:
● Direct application → Declaration of invalidity
● Indirect application → Ordinary legal remedies apply
---
EXAM TIP
When answering problem questions, ALWAYS work through the stages in order:
1. Procedural (application, standing, jurisdiction)
2. Substantive (interpretation, limitation)
3. Remedies
—
, STUDY UNIT 2: APPLICATION
© Pebetsi Study Hub
OVERVIEW
1.First question in procedural stage: Does the Bill of Rights apply?
THREE KEY QUESTIONS:
1.1. Is the applicant entitled to rights?
1.2. Is the respondent bound?
1.3. How does it apply? (Directly or indirectly?)
---
2.WHO IS PROTECTED? (Section 8)
Natural Persons
● "Everyone" = all persons (including non-citizens)
● Some rights are reserved for citizens only (e.g., right to vote - s19)
● Some rights for specific groups (children, workers)
3. Juristic Persons (Companies, etc.) - Section 8(4)
A juristic person is entitled to rights to the extent required by:
3.1. Nature of the right
3.2. Nature of the juristic person
Examples:
● SABC can claim freedom of expression (part of its daily business)
● Insurance company CANNOT claim right to life (only for humans)
● Trade unions can claim collective bargaining rights
● Close corporation can claim access to information
Important: Even if a juristic person can't claim the right itself, it may still have standing if it has
sufficient interest!
