FUR2601 - Examination preparation
COMMENTARY ON EXAMINATION 1
QUESTION 1
(a) Explain the different stages of fundamental rights litigation. In your answer, refer to the procedural and
substantive issues a court will have to consider. (10)
Possible answer
(i) The procedural issues are as follows:
● Application
(i)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.
(ii)In what way is the Bill of Rights applicable to the dispute?
(iii)In this enquiry, it must be determined whether the Bill of Rights has direct or indirect application.
● Justiciability
(iv)Is the issue justiciable and does the applicant in the matter have standing in respect of the relief sought?
● Jurisdiction
(v)Does the court have jurisdiction to grant the relief claimed
(ii) The substantive issues are as follows:
The court must determine whether the law or the conduct of the respondent infringed the rights of the applicant.
If yes, the court will determine whether the infringement is a justifiable limitation of the right in terms of section 36.
If yes, the conduct of the respondent is not unconstitutional. If no, it is unconstitutional and an appropriate remedy
must be sought.
The remaining issues regarding fundamental rights litigation which you can be examined on are those of remedies
and onus of proof.
(iii) 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.
(iv) Onus of proof
In the procedural stage, the onus is on the applicant to satisfy all the requirements. In the substantive stage, the onus
is first on the applicant to show that an infringement of a right has taken place.
The onus then shifts to the respondent to show that the infringement is a justifiable limitation of the right in terms of
section 36.
(b) State whether the following statements are true or false. Give reasons for your answers.
NB: CONFINE YOURSELF TO THE APPLICATION OF THE BILL OF RIGHTS. DO NOT DISCUSS THE MERITS OF
THE CASE.
(i) It is not necessary for the rules of Elite Secondary School (a private school) to comply with the provisions of the
Bill of Rights. (3)
(ii) The Department of Education is one of the few state departments that is not bound by the Bill of Rights. ( 2)
(iii) The immigration authorities are entitled to deport all illegal immigrants immediately, as they are not protected by
the Constitution. (3)
(iv) The Happy Sunday Liquor Store may trade on Sundays, as it is protected by section 15 of the Constitution, which
makes provision for the right to freedom of religion. (3)
(v) Natural and juristic persons are not bound by the right of access to adequate housing in terms of section 26(1),
but are bound by the right of a person not to be evicted from his or her home without a court order (in terms of s
26(3)). (4)
Possible answer
(i) False.
It may be argued that the school, as a private school, is an institution performing a public function in terms of
legislation and is therefore, in terms of the definition in section 239, an organ of state and bound by the Bill of Rights in
terms of section 8(1). It may also be argued that the school, as a juristic person, is bound in terms of section 8(2),
depending on the nature of the right and the nature of the duty imposed by the right.
(ii) False.
In terms of section 8(1), the executive and all organs of state are bound by the Bill of Rights.
(iii) False.
In terms of section 33, every person (therefore, also an illegal immigrant) has the right to just administrative action.
,(iv) False.
The liquor store as a juristic person (s 8(4)) is of such a nature that it is not protected by the right to freedom of
religion. However, because of it having a sufficient interest in the decision of the court, it will have standing in terms of
section 38.
(v) True.
In terms of section 8(2), both natural and juristic persons are bound by the Bill of Rights, depending on the nature of
the right and the nature of the duty imposed by the right. Section 26(2), however, seems to indicate that it is binding
on the state only, therefore leading us to believe that section 26(1) may not apply to private conduct as well. Section
26(3), then, is binding on both the state and natural and juristic persons. Authority for this view may be found in Brisley
v Drotsky 2002 (12) BCLR 1229 (SCA), paragraph 40.
NOTE: You will get NO marks if you simply write “True” or “False”, without giving reasons for your answer –
even if the answer is correct!
QUESTION 2
(a) Describe how (i) public international law and (ii) foreign law may influence the interpretation of the South
African Bill of Rights. (5)
“Public international law” refers to international agreements and customary international law and judgments of
international courts such as the European Court of Human Rights (ECHR). “Foreign law” refers to foreign case law
(i.e., contains references to precedents of other countries) and also foreign legislation and other constitutions, but
mainly case law.
In S v Makwanyane, the Constitutional Court stated that both binding and nonbinding public international law may be
used as tools of interpretation. International law provides a framework within which rights can be evaluated and
understood. It can also help to interpret rights, to determine their content and scope, and to give guidance during
interpretation.
In terms of section 39(1), the courts “shall” consider applicable public international law, but “may” consider foreign law.
The courts are therefore obliged to consider applicable international law as a persuasive source, but are under no
obligation to do so as far as foreign law is concerned. In Makwanyane, the Court stated that foreign case law will not
necessarily provide a safe guide for interpreting the Bill of Rights. (You will also be given marks for any elaboration on
this point.)
(b) Give a brief explanation of what is meant by “the contextual interpretation of a constitution”. (5)
Contextual interpretation is a value-based approach. In terms of this approach, rights and words are understood not
only in their social and historical context, but also in their textual setting. This is known as systematic interpretation,
where the document is read as a whole together with its surrounding circumstances, and not in isolation. An example
of this can be seen in S v Makwanyane, where the Court treated the right to life, the right to equality and the right to
human dignity as collectively giving meaning to the prohibition of cruel, inhuman or degrading treatment or
punishment. Credit was also given for relevant references to cases, such as Ferreira v Levin and Soobramoney v
Minister of Health (KwaZulu-Natal).
Contextual interpretation must be used with caution, as context may be used to limit, rather than interpret, rights, or as
a short cut to eliminate “irrelevant” fundamental rights.
(c) Section 38 of the Constitution provides that a court may grant “appropriate relief” where a right in the
Bill of Rights has been infringed. Explain this term briefly, giving examples of such relief. (5)
According to the Constitutional Court in Fose, the court must decide what would be appropriate in the circumstances
before it. “Appropriate relief” refers to the relief that is necessary in order to protect and enforce the rights in the
Constitution. In terms of section 172, the court must declare any law or conduct that is inconsistent with the
Constitution invalid to the extent of its inconsistency.
However, the courts must consider the effect of the relief on society at large. Section 38 therefore promotes a flexible
approach. Examples of this relief are invalidation, constitutional damages, administrative law remedies, interdicts,
mandamus, declaration of rights, exclusion of evidence, et cetera.
(d) Discuss two ways in which the courts can regulate the impact of a declaration of invalidity in terms of
section 172(1)(a) and (b) of the Constitution. (10)
,You could have discussed four different techniques, namely severance, suspension, reading in, and control of the
retrospective effect of the orders of invalidity.
We shall discuss only the first two techniques.
(1) Severance
This technique requires a court to declare invalid only those parts of the law that are unconstitutional in nature.
This will entail striking down a particular section or subsection, or part of it, and leaving the rest of the law intact. The
test for severance consists of the following two parts:
First, it must be possible to sever the bad from the good. This can be achieved by actual severance and notional
severance. Actual severance entails the striking out of words or phrases, and notional severance entails leaving the
language of the provisions intact, but subjecting it to a condition for proper application. Case reference: Ferreira v
Levin.
Secondly, the remainder must still give effect to the purpose of the law. The purpose of a provision must be
determined with reference to the statute as a whole, and a court should be careful not to usurp the functions of the
legislature. Case reference: Case v Minister of Safety and Security. In S v Coetzee, severance was employed as a
combination of reading down and severance to meet the first part of the test. Then a broad, rather than a narrow,
purpose was attached to the legislative provision in order to meet the second part of the test.
Sachs J, on the other hand, cautioned against a broad application of the tests for severance, as it may result in
thwarting the initial purpose of a legislative provision.
(2) Suspension
If a court finds law or conduct to be invalid in terms of the Constitution, it may temporarily suspend the effect of this
declaration of invalidity.
The purpose of this power is to allow the legislature a certain period of time to correct the defect. If the matter is
corrected within the specified period of time, the declaration falls away. If not, the declaration of invalidity takes effect
at the expiry of the prescribed period. It must be noted that the legislature can choose whether or not to correct the
defect within the specified period. The effect of the suspension is that the legislation remains in force for the period of
suspension, and that a court may grant interim relief to a litigant pending the correction of the legislation. Case
reference: Mistry.
QUESTION 3
Section 9 of the Constitution provides as follows:
9(1) Everyone is equal before the law and has the right to equal protection and benefit of the law.
9(2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement
of equality, legislative and other measures designed to protect or advance persons, or categories of persons,
disadvantaged by unfair discrimination may be taken.
9(3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds,
including race, gen- der, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation,
age, disability, religion, conscience, belief, culture, language and birth.
9(4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in
terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.
19(5) Discrimination on one or more of the grounds listed in sub- section (3) is unfair unless it is established
that the discrimination is fair.
Answer the following questions:
(a) Discuss the test adopted by the Constitutional Court when interpreting section 9(1). Refer to case law in
your answer. (10)
The test is called “the rational connection test”. The equality provision does not prevent government from treating
some people differently from others. The principle of equality does not require everyone to be treated the same, but
simply that people in the same position should be treated the same. People may be classified and treated differently
for a number of legitimate reasons. However, the law violates section 9(1) if the differentiation does not have a
legitimate purpose or if there is no rational connection between the differentiation and the purpose.
The test was formulated as follows in Harksen v Lane:
(1) Does the provision differentiate between people or categories of people?
(2) If so, is there a rational connection between the differentiation and a legitimate governmental purpose?
The Court in Prinsloo v Van der Linde stated that a constitutional state is expected to act in a rational manner. “It
should not regulate in an arbitrary manner or manifest ‘naked preferences’ that serve no legitimate governmental
purpose, for that would be inconsistent with the rule of law.” Accordingly, for a differentiation to infringe section 9(1), it
, must be established that there is no rational relationship between the differentiation and a governmental purpose. In
the absence of a rational relationship, the differentiation would infringe section 9(1).
(b) Discuss the analogous-grounds approach adopted by the Constitutional Court in Harksen v Lane in its
application of section 9(3). In your answer, refer to the tests applied by the Court to determine whether an
analogous ground exists. (10)
(i) Once it has been established that a differentiation exists, the next stage is to determine whether the differentiation
discriminates. Whether or not there is discrimination would depend on whether, objectively speaking, the ground is
based on attributes or characteristics which have the potential to impair people’s fundamental human dignity or to
affect them adversely in a comparably serious manner.
(ii) The next stage is to determine whether the discrimination is unfair.
The test for unfairness focuses primarily on the impact of the discrimination on the complainant and others in the
same situation. The Court stated that the following factors must be considered:
● The position of the complainants in society, and whether the complainants have been victims of past patterns of
discrimination.
● The nature of the discriminatory law and the purpose it seeks to achieve. Does the law seek to achieve a worthy
societal goal?
● The extent to which the complainants’ rights have been in- fringed, and whether there has been an impairment of
their fundamental dignity.
If, at the end of this enquiry, it is found that the differentiation does not amount to discrimination, or that discrimination
exists but is not unfair, there will be no violation of section 9(3).
(c) Removed - duplicate
QUESTION 4
(d) What was the approach of the Constitutional Court to the justiciability of socio-economic rights in the
Certification judgment? (5)
In this judgment, the Court affirmed the justiciability of socio-economic rights. The argument against the inclusion of
socio-economic rights in the Constitution was that it amounts to a breach of the doctrine of separation of powers and
gives the judiciary the power to decide on a political question of how to distribute public resources and thus make
orders about how public resources should be spent. The Court rejected this argument and its response was that the
enforcement of civil and political rights had monetary implications as well (e.g. legal aid, etc.) Thus, the fact that
socio-economic rights have budgetary implications does not necessarily amount to a breach of separation of powers.
The Court said that these rights are justiciable, in that they can be negatively protected from improper invasion. This
means that a court can prevent the state from acting in a way that interferes with one’s socio-economic rights. The
rights to housing, health care, food and water, social security, and basic education may therefore not be made subject
to “deliberately retrogressive measures”. Not only must the state refrain from infringing on the enjoyment of these
rights, but it also has a duty to prevent interference by private individuals.
(e) The Pretoria City Council passed a bylaw on the issue of animal sacrifice, stating that the “sacrificing of
animals within the city limits is contrary to public health, safety, welfare and morals of the community”.
The bylaw defined “sacrifice” as “to unnecessarily kill, torment, torture, or mutilate an animal in a public or
private ritual ceremony”, and prohibited owning or possessing an animal for such purposes. The bylaw also
prohibited the slaughtering of animals outside of areas zoned for slaughterhouse use.
Mr Ali, a Muslim, has been charged with, and convicted of, a breach of the bylaw, in that he slaughtered three
cows on his property in Laudium, Pretoria. The slaughtering of the animals formed part of the annual Eid-ul-
Adha festival. He appeals against his conviction on the basis that the bylaw constitutes a violation of his
constitutional rights.
You are a clerk to a Constitutional Court judge, who asks you to prepare a draft opinion on the case. Your
opinion should include a discussion of the two-stage approach in section 36 of the Constitution, and of
principles established in case law. (20)
The two-stage approach
The limitation enquiry involves the following two-stage analysis:
The first stage
COMMENTARY ON EXAMINATION 1
QUESTION 1
(a) Explain the different stages of fundamental rights litigation. In your answer, refer to the procedural and
substantive issues a court will have to consider. (10)
Possible answer
(i) The procedural issues are as follows:
● Application
(i)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.
(ii)In what way is the Bill of Rights applicable to the dispute?
(iii)In this enquiry, it must be determined whether the Bill of Rights has direct or indirect application.
● Justiciability
(iv)Is the issue justiciable and does the applicant in the matter have standing in respect of the relief sought?
● Jurisdiction
(v)Does the court have jurisdiction to grant the relief claimed
(ii) The substantive issues are as follows:
The court must determine whether the law or the conduct of the respondent infringed the rights of the applicant.
If yes, the court will determine whether the infringement is a justifiable limitation of the right in terms of section 36.
If yes, the conduct of the respondent is not unconstitutional. If no, it is unconstitutional and an appropriate remedy
must be sought.
The remaining issues regarding fundamental rights litigation which you can be examined on are those of remedies
and onus of proof.
(iii) 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.
(iv) Onus of proof
In the procedural stage, the onus is on the applicant to satisfy all the requirements. In the substantive stage, the onus
is first on the applicant to show that an infringement of a right has taken place.
The onus then shifts to the respondent to show that the infringement is a justifiable limitation of the right in terms of
section 36.
(b) State whether the following statements are true or false. Give reasons for your answers.
NB: CONFINE YOURSELF TO THE APPLICATION OF THE BILL OF RIGHTS. DO NOT DISCUSS THE MERITS OF
THE CASE.
(i) It is not necessary for the rules of Elite Secondary School (a private school) to comply with the provisions of the
Bill of Rights. (3)
(ii) The Department of Education is one of the few state departments that is not bound by the Bill of Rights. ( 2)
(iii) The immigration authorities are entitled to deport all illegal immigrants immediately, as they are not protected by
the Constitution. (3)
(iv) The Happy Sunday Liquor Store may trade on Sundays, as it is protected by section 15 of the Constitution, which
makes provision for the right to freedom of religion. (3)
(v) Natural and juristic persons are not bound by the right of access to adequate housing in terms of section 26(1),
but are bound by the right of a person not to be evicted from his or her home without a court order (in terms of s
26(3)). (4)
Possible answer
(i) False.
It may be argued that the school, as a private school, is an institution performing a public function in terms of
legislation and is therefore, in terms of the definition in section 239, an organ of state and bound by the Bill of Rights in
terms of section 8(1). It may also be argued that the school, as a juristic person, is bound in terms of section 8(2),
depending on the nature of the right and the nature of the duty imposed by the right.
(ii) False.
In terms of section 8(1), the executive and all organs of state are bound by the Bill of Rights.
(iii) False.
In terms of section 33, every person (therefore, also an illegal immigrant) has the right to just administrative action.
,(iv) False.
The liquor store as a juristic person (s 8(4)) is of such a nature that it is not protected by the right to freedom of
religion. However, because of it having a sufficient interest in the decision of the court, it will have standing in terms of
section 38.
(v) True.
In terms of section 8(2), both natural and juristic persons are bound by the Bill of Rights, depending on the nature of
the right and the nature of the duty imposed by the right. Section 26(2), however, seems to indicate that it is binding
on the state only, therefore leading us to believe that section 26(1) may not apply to private conduct as well. Section
26(3), then, is binding on both the state and natural and juristic persons. Authority for this view may be found in Brisley
v Drotsky 2002 (12) BCLR 1229 (SCA), paragraph 40.
NOTE: You will get NO marks if you simply write “True” or “False”, without giving reasons for your answer –
even if the answer is correct!
QUESTION 2
(a) Describe how (i) public international law and (ii) foreign law may influence the interpretation of the South
African Bill of Rights. (5)
“Public international law” refers to international agreements and customary international law and judgments of
international courts such as the European Court of Human Rights (ECHR). “Foreign law” refers to foreign case law
(i.e., contains references to precedents of other countries) and also foreign legislation and other constitutions, but
mainly case law.
In S v Makwanyane, the Constitutional Court stated that both binding and nonbinding public international law may be
used as tools of interpretation. International law provides a framework within which rights can be evaluated and
understood. It can also help to interpret rights, to determine their content and scope, and to give guidance during
interpretation.
In terms of section 39(1), the courts “shall” consider applicable public international law, but “may” consider foreign law.
The courts are therefore obliged to consider applicable international law as a persuasive source, but are under no
obligation to do so as far as foreign law is concerned. In Makwanyane, the Court stated that foreign case law will not
necessarily provide a safe guide for interpreting the Bill of Rights. (You will also be given marks for any elaboration on
this point.)
(b) Give a brief explanation of what is meant by “the contextual interpretation of a constitution”. (5)
Contextual interpretation is a value-based approach. In terms of this approach, rights and words are understood not
only in their social and historical context, but also in their textual setting. This is known as systematic interpretation,
where the document is read as a whole together with its surrounding circumstances, and not in isolation. An example
of this can be seen in S v Makwanyane, where the Court treated the right to life, the right to equality and the right to
human dignity as collectively giving meaning to the prohibition of cruel, inhuman or degrading treatment or
punishment. Credit was also given for relevant references to cases, such as Ferreira v Levin and Soobramoney v
Minister of Health (KwaZulu-Natal).
Contextual interpretation must be used with caution, as context may be used to limit, rather than interpret, rights, or as
a short cut to eliminate “irrelevant” fundamental rights.
(c) Section 38 of the Constitution provides that a court may grant “appropriate relief” where a right in the
Bill of Rights has been infringed. Explain this term briefly, giving examples of such relief. (5)
According to the Constitutional Court in Fose, the court must decide what would be appropriate in the circumstances
before it. “Appropriate relief” refers to the relief that is necessary in order to protect and enforce the rights in the
Constitution. In terms of section 172, the court must declare any law or conduct that is inconsistent with the
Constitution invalid to the extent of its inconsistency.
However, the courts must consider the effect of the relief on society at large. Section 38 therefore promotes a flexible
approach. Examples of this relief are invalidation, constitutional damages, administrative law remedies, interdicts,
mandamus, declaration of rights, exclusion of evidence, et cetera.
(d) Discuss two ways in which the courts can regulate the impact of a declaration of invalidity in terms of
section 172(1)(a) and (b) of the Constitution. (10)
,You could have discussed four different techniques, namely severance, suspension, reading in, and control of the
retrospective effect of the orders of invalidity.
We shall discuss only the first two techniques.
(1) Severance
This technique requires a court to declare invalid only those parts of the law that are unconstitutional in nature.
This will entail striking down a particular section or subsection, or part of it, and leaving the rest of the law intact. The
test for severance consists of the following two parts:
First, it must be possible to sever the bad from the good. This can be achieved by actual severance and notional
severance. Actual severance entails the striking out of words or phrases, and notional severance entails leaving the
language of the provisions intact, but subjecting it to a condition for proper application. Case reference: Ferreira v
Levin.
Secondly, the remainder must still give effect to the purpose of the law. The purpose of a provision must be
determined with reference to the statute as a whole, and a court should be careful not to usurp the functions of the
legislature. Case reference: Case v Minister of Safety and Security. In S v Coetzee, severance was employed as a
combination of reading down and severance to meet the first part of the test. Then a broad, rather than a narrow,
purpose was attached to the legislative provision in order to meet the second part of the test.
Sachs J, on the other hand, cautioned against a broad application of the tests for severance, as it may result in
thwarting the initial purpose of a legislative provision.
(2) Suspension
If a court finds law or conduct to be invalid in terms of the Constitution, it may temporarily suspend the effect of this
declaration of invalidity.
The purpose of this power is to allow the legislature a certain period of time to correct the defect. If the matter is
corrected within the specified period of time, the declaration falls away. If not, the declaration of invalidity takes effect
at the expiry of the prescribed period. It must be noted that the legislature can choose whether or not to correct the
defect within the specified period. The effect of the suspension is that the legislation remains in force for the period of
suspension, and that a court may grant interim relief to a litigant pending the correction of the legislation. Case
reference: Mistry.
QUESTION 3
Section 9 of the Constitution provides as follows:
9(1) Everyone is equal before the law and has the right to equal protection and benefit of the law.
9(2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement
of equality, legislative and other measures designed to protect or advance persons, or categories of persons,
disadvantaged by unfair discrimination may be taken.
9(3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds,
including race, gen- der, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation,
age, disability, religion, conscience, belief, culture, language and birth.
9(4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in
terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.
19(5) Discrimination on one or more of the grounds listed in sub- section (3) is unfair unless it is established
that the discrimination is fair.
Answer the following questions:
(a) Discuss the test adopted by the Constitutional Court when interpreting section 9(1). Refer to case law in
your answer. (10)
The test is called “the rational connection test”. The equality provision does not prevent government from treating
some people differently from others. The principle of equality does not require everyone to be treated the same, but
simply that people in the same position should be treated the same. People may be classified and treated differently
for a number of legitimate reasons. However, the law violates section 9(1) if the differentiation does not have a
legitimate purpose or if there is no rational connection between the differentiation and the purpose.
The test was formulated as follows in Harksen v Lane:
(1) Does the provision differentiate between people or categories of people?
(2) If so, is there a rational connection between the differentiation and a legitimate governmental purpose?
The Court in Prinsloo v Van der Linde stated that a constitutional state is expected to act in a rational manner. “It
should not regulate in an arbitrary manner or manifest ‘naked preferences’ that serve no legitimate governmental
purpose, for that would be inconsistent with the rule of law.” Accordingly, for a differentiation to infringe section 9(1), it
, must be established that there is no rational relationship between the differentiation and a governmental purpose. In
the absence of a rational relationship, the differentiation would infringe section 9(1).
(b) Discuss the analogous-grounds approach adopted by the Constitutional Court in Harksen v Lane in its
application of section 9(3). In your answer, refer to the tests applied by the Court to determine whether an
analogous ground exists. (10)
(i) Once it has been established that a differentiation exists, the next stage is to determine whether the differentiation
discriminates. Whether or not there is discrimination would depend on whether, objectively speaking, the ground is
based on attributes or characteristics which have the potential to impair people’s fundamental human dignity or to
affect them adversely in a comparably serious manner.
(ii) The next stage is to determine whether the discrimination is unfair.
The test for unfairness focuses primarily on the impact of the discrimination on the complainant and others in the
same situation. The Court stated that the following factors must be considered:
● The position of the complainants in society, and whether the complainants have been victims of past patterns of
discrimination.
● The nature of the discriminatory law and the purpose it seeks to achieve. Does the law seek to achieve a worthy
societal goal?
● The extent to which the complainants’ rights have been in- fringed, and whether there has been an impairment of
their fundamental dignity.
If, at the end of this enquiry, it is found that the differentiation does not amount to discrimination, or that discrimination
exists but is not unfair, there will be no violation of section 9(3).
(c) Removed - duplicate
QUESTION 4
(d) What was the approach of the Constitutional Court to the justiciability of socio-economic rights in the
Certification judgment? (5)
In this judgment, the Court affirmed the justiciability of socio-economic rights. The argument against the inclusion of
socio-economic rights in the Constitution was that it amounts to a breach of the doctrine of separation of powers and
gives the judiciary the power to decide on a political question of how to distribute public resources and thus make
orders about how public resources should be spent. The Court rejected this argument and its response was that the
enforcement of civil and political rights had monetary implications as well (e.g. legal aid, etc.) Thus, the fact that
socio-economic rights have budgetary implications does not necessarily amount to a breach of separation of powers.
The Court said that these rights are justiciable, in that they can be negatively protected from improper invasion. This
means that a court can prevent the state from acting in a way that interferes with one’s socio-economic rights. The
rights to housing, health care, food and water, social security, and basic education may therefore not be made subject
to “deliberately retrogressive measures”. Not only must the state refrain from infringing on the enjoyment of these
rights, but it also has a duty to prevent interference by private individuals.
(e) The Pretoria City Council passed a bylaw on the issue of animal sacrifice, stating that the “sacrificing of
animals within the city limits is contrary to public health, safety, welfare and morals of the community”.
The bylaw defined “sacrifice” as “to unnecessarily kill, torment, torture, or mutilate an animal in a public or
private ritual ceremony”, and prohibited owning or possessing an animal for such purposes. The bylaw also
prohibited the slaughtering of animals outside of areas zoned for slaughterhouse use.
Mr Ali, a Muslim, has been charged with, and convicted of, a breach of the bylaw, in that he slaughtered three
cows on his property in Laudium, Pretoria. The slaughtering of the animals formed part of the annual Eid-ul-
Adha festival. He appeals against his conviction on the basis that the bylaw constitutes a violation of his
constitutional rights.
You are a clerk to a Constitutional Court judge, who asks you to prepare a draft opinion on the case. Your
opinion should include a discussion of the two-stage approach in section 36 of the Constitution, and of
principles established in case law. (20)
The two-stage approach
The limitation enquiry involves the following two-stage analysis:
The first stage
