Exam Pack FUR2601: 2025

FUR2601




3 Stages of the Bill of Rights

1. Procedural stage

2. Substantive stage

3. Remedies stage

Procedural stage

Before a court can proceed to consider the issues of substance raised in human rights litigation it
must first consider preliminary, procedural issues such as:

1. The application of the Bill of Rights to the subject matter of the litigation.

2. The justiciability of the issue to be decided and the standing of the applicant

3. The jurisdiction of the court to grant the relief claimed by the applicant

Application of the Bill of Rights

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.

Justiciability

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

Jurisdiction

Does the court have jurisdiction to grant relief? Only the High Court, The SCA and the Constitutional
Court have jurisdiction to adjudicate Constitutional matters.

Substantive stage

,1. Interpretation

2. Limitation

Interpretation

Has the law or conduct of the respondent infringed a fundamental right of the applicant? This stage
focuses on the actual infringement of the right.

Limitation

Is the infringement a justifiable limitation of the right in question according to the criteria set out in
section 36? If yes then the respondent's conduct cannot be regarded as unconstitutional and the
application must be dismissed. If the respondent's conduct does not satisfy the test in section 36,
then it will be deemed unconstitutional.

.1 THREE STAGES OF FUNDAMENTAL RIGHTS LITIGATION

Fundamental rights litigation takes place in three distinct stages, namely
the procedural stage,
the substantive stage
and the remedies stage.

STAGE 1: PROCEDURAL STAGE

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 applicant,
and (iii) the jurisdiction of the court to grant the relief claimed by the applicant.

(i) APPLICATION

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 followed by the courts
is that the Bill of Rights must first be applied indirectly before direct application is considered

(ii) JUSTICIABILITY:

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

, (iii) JURISDICTION:

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

STAGE 2: SUBSTANTIVE STAGE

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 then consider whether
that violation is a justifiable limitation of a right.

(i) INTERPRETATION

Has the law or the conduct of the respondent infringed a fundamental right of the applicant?
This stage focuses on the actual infringement of a right.
It must be determined whether the law or conduct in question violates the right, or rights, of the
applicant. The courts will determine this upon an interpretation of the provisions of the Constitution
in general and the Bill of Rights in particular.
If the court concludes that no violation has taken place, the application will be dismissed.
If, however, the infringement of a fundamental right has taken place, the court will go on to the next
question.

(ii) LIMITATION

Is the infringement a justifiable limitation of the right in question according to the criteria set out in
section 36?
If this question is answered affirmatively, then the respondent's conduct cannot be regarded as
unconstitutional and the application must be dismissed. If the respondent's conduct does not satisfy
the test in section 36, then it will be deemed to be unconstitutional. The court will move on to the
next stage.

STAGE 3: REMEDY

Finally, if the court finds that a violation of a right is not a justifiable limitation, it will have to consider
the appropriate remedy to deal with the unconstitutional
infringement of a fundamental right

ONUS

The court will also have to determine who has the task or the burden of proving each of the issues in
each of the three distinct stages.

(i) ONUS - PROCEDURAL STAGE:

In the procedural stage, the onus is on the applicant to prove that all the requirements have been
satisfied.

(ii) ONUS - SUBSTANTIVE STAGE: