CONSTITUTIONAL LAW
PBL2003W
University of Cape Town
By Jamie-Lou Ross & K Borkowski
September Test Cases
PART 1: INTRODUCTION TO THE BILL OF RIGHTS, & INTERPRETING & APPLYING THE BILL OF RIGHTS
Litigating the Bill of Rights
Carmichele v Minister of Safety and Security
Christian Education South Africa v Minister of Education
National Coalition for Gay and Lesbian Equality v Minister of Home Affairs
Thubakgale and Others v Ekurhuleni Metropolitan Municipality and Others
PART 2: FREEDOM RIGHTS
Ubuntu and Human dignity
S v Makwanyane and Another
Dawood v Minister of Home Affairs
The Right to Equality and ‘Remedial’ or ‘Restitutionary’ Measures
Harksen v Lane NO
Hoffman v South African Airways
S v Jordan and Others
Mahlangu and Another v Minister of Labour and Others.
Minister of Finance v Van Heerden.
Freedom of Expression & Hate Speech
Islamic Unity Convention v Independent Broadcasting Authority and Others
Afriforum and Another v Malema and Others
Nelson Mandela Foundation Trust v Afriforum NPC and Another
Qwelane v South African Human Rights Commission and Another
Afriforum v Economic Freedom Fighters and Others.
DISTRIBUTION OF THIS DOCUMENT IS ILLEGAL
PIERRE DE VOS; WARREN FREEDMAN; ZSA-ZSA BOGGENPOEL. 2021.
SOUTH AFRICAN CONSTITUTIONAL LAW IN CONTEXT SECOND EDITION.
OXFORD: OXFORD UNIV PRESS UK.
, PART 1: INTRODUCTION TO THE BILL OF RIGHTS, & INTERPRETING & APPLYING THE BILL OF RIGHTS
Litigating the Bill of Rights
Carmichele v Minister of Safety and Security 2001 (CC)
Facts
● The applicant was sexually assaulted by a man who was awaiting trial for the attempted rape of another woman
● Concerns an indirect vertical application of a positive obligation in a dispute governed by common law
● Despite the seriousness of the alleged crime and the fact that the man had a prior rape conviction, the police and prosecutor had
recommended that the man be released pending trial
● The applicant sued the Minister for damages, arguing that the police and prosecutors had negligently failed to comply with a legal
duty they owed to her to take steps to prevent the man from causing her harm
● HC dismissed the applicant's claim & SCA affirmed, holding that the police and prosecution did not owe her a duty of protection
● Appeal to the Constitutional Court
Issue
● If police or prosecutors owed a duty of care to a victim of sexual violence, &, if so, whether that standard of care was breached?
Outcome
● State is obligated by Constitution to protect the dignity and security of women
● Police have positive obligations to protect the fundamental rights and freedoms contained in the BORs
● In the circumstances, the police recommendation for the assailant's release could amount to wrongful conduct giving rise to liability
● Ackermann and Goldstone JJ held that, although the major engine for law reform should be the legislature, courts are under a general
duty to develop the common law when it deviates from the spirit, purport and objects of the BORs.
● S 39(2) Constitution provides that when developing the common law, every court must promote the spirit, purport, and objects of the
BORs
● Prosecutors, who were under a general duty to place before a court any information relevant to the refusal or grant of bail, might
reasonably be held liable for negligently failing to fulfil that duty
● It was ordered that the matter be referred back to the HC for the trial to be continued.
● Obligation of courts to develop the common law, in the context of the s 39(2) objectives, is not purely discretionary.
● On the contrary, it is implicit in s 39(2) read with s 173 that where the common law as it stands is deficient in promoting the s 39(2)
objectives, courts are under a general obligation to develop it appropriately.
● BORs is used to develop the rules and remedies of the ordinary law so that the ‘objective normative value system’ that permeates the
Bill of Rights is given effect
Significance
● Decision set an important precedent with its recognition that sexual violence is not a private matter and that public officials have a
duty to protect women.
Christian Education SA v Minister of Education 2000 (C)
Facts
● Appellant applied for an order declaring s 10 South African Schools Act (SASA) - prohibited corporal punishment in public schools -
to be unconstitutional & invalid on grounds that it infringed inter alia their R to religious freedom guaranteed in s 15(1) Const
PBL2003W
University of Cape Town
By Jamie-Lou Ross & K Borkowski
September Test Cases
PART 1: INTRODUCTION TO THE BILL OF RIGHTS, & INTERPRETING & APPLYING THE BILL OF RIGHTS
Litigating the Bill of Rights
Carmichele v Minister of Safety and Security
Christian Education South Africa v Minister of Education
National Coalition for Gay and Lesbian Equality v Minister of Home Affairs
Thubakgale and Others v Ekurhuleni Metropolitan Municipality and Others
PART 2: FREEDOM RIGHTS
Ubuntu and Human dignity
S v Makwanyane and Another
Dawood v Minister of Home Affairs
The Right to Equality and ‘Remedial’ or ‘Restitutionary’ Measures
Harksen v Lane NO
Hoffman v South African Airways
S v Jordan and Others
Mahlangu and Another v Minister of Labour and Others.
Minister of Finance v Van Heerden.
Freedom of Expression & Hate Speech
Islamic Unity Convention v Independent Broadcasting Authority and Others
Afriforum and Another v Malema and Others
Nelson Mandela Foundation Trust v Afriforum NPC and Another
Qwelane v South African Human Rights Commission and Another
Afriforum v Economic Freedom Fighters and Others.
DISTRIBUTION OF THIS DOCUMENT IS ILLEGAL
PIERRE DE VOS; WARREN FREEDMAN; ZSA-ZSA BOGGENPOEL. 2021.
SOUTH AFRICAN CONSTITUTIONAL LAW IN CONTEXT SECOND EDITION.
OXFORD: OXFORD UNIV PRESS UK.
, PART 1: INTRODUCTION TO THE BILL OF RIGHTS, & INTERPRETING & APPLYING THE BILL OF RIGHTS
Litigating the Bill of Rights
Carmichele v Minister of Safety and Security 2001 (CC)
Facts
● The applicant was sexually assaulted by a man who was awaiting trial for the attempted rape of another woman
● Concerns an indirect vertical application of a positive obligation in a dispute governed by common law
● Despite the seriousness of the alleged crime and the fact that the man had a prior rape conviction, the police and prosecutor had
recommended that the man be released pending trial
● The applicant sued the Minister for damages, arguing that the police and prosecutors had negligently failed to comply with a legal
duty they owed to her to take steps to prevent the man from causing her harm
● HC dismissed the applicant's claim & SCA affirmed, holding that the police and prosecution did not owe her a duty of protection
● Appeal to the Constitutional Court
Issue
● If police or prosecutors owed a duty of care to a victim of sexual violence, &, if so, whether that standard of care was breached?
Outcome
● State is obligated by Constitution to protect the dignity and security of women
● Police have positive obligations to protect the fundamental rights and freedoms contained in the BORs
● In the circumstances, the police recommendation for the assailant's release could amount to wrongful conduct giving rise to liability
● Ackermann and Goldstone JJ held that, although the major engine for law reform should be the legislature, courts are under a general
duty to develop the common law when it deviates from the spirit, purport and objects of the BORs.
● S 39(2) Constitution provides that when developing the common law, every court must promote the spirit, purport, and objects of the
BORs
● Prosecutors, who were under a general duty to place before a court any information relevant to the refusal or grant of bail, might
reasonably be held liable for negligently failing to fulfil that duty
● It was ordered that the matter be referred back to the HC for the trial to be continued.
● Obligation of courts to develop the common law, in the context of the s 39(2) objectives, is not purely discretionary.
● On the contrary, it is implicit in s 39(2) read with s 173 that where the common law as it stands is deficient in promoting the s 39(2)
objectives, courts are under a general obligation to develop it appropriately.
● BORs is used to develop the rules and remedies of the ordinary law so that the ‘objective normative value system’ that permeates the
Bill of Rights is given effect
Significance
● Decision set an important precedent with its recognition that sexual violence is not a private matter and that public officials have a
duty to protect women.
Christian Education SA v Minister of Education 2000 (C)
Facts
● Appellant applied for an order declaring s 10 South African Schools Act (SASA) - prohibited corporal punishment in public schools -
to be unconstitutional & invalid on grounds that it infringed inter alia their R to religious freedom guaranteed in s 15(1) Const
