FUR 201-F. Study Unit 3: Application. Distinguish between direct + indirect application of BOR, discuss significance of distinction

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1 Study Unit 3: Application F U R Objectives: Distinguish between direct + indirect application of BOR, discuss significance of distinction 2 Discuss question: Who is entitled to rights in BOR? Analyse s8(1) + s8(2) of Cons which provides for direct vertical + direct horizontal application Discuss indirect application of BOR to Legislation + Common Law Discuss When should BOR be applied directly or indirectly to legislation / common law 0 1 F GC Swanepoel 1/1111

2 Who is protected by BOR? (Beneficiaries of BOR) Natural Persons (NP) Most rights in BOR are for everyone / may be denied no one Rights phrased in such way (eg. S11 everyone has right to life ) accorded to all in Republic (whether here legally/ illegally + permanently/temporary) Some rights accorded to specific beneficiaries like citizens eg. (s19) Political right (s20) Citizens rights (s21) Freedom of movement (s22) Freedom of trade Adult citizens eg. (s19(3)) right to vote + stand for political office Persons belonging to cultural, religious, linguistic community (s31) cultural rights This limits scope of right and does not concern application but interpretation eg. Court must determine who qualifies as adult citizen Persons excluded by scope of right have no protection thereunder (may rely on objective inconsistency between law/ conduct + BOR results from generous interpretation of Cons) Juristic Persons (JP) s8(4) - JP is entitled to the rights in the BOR to the extent required by the nature of the right and the nature of that JP Argued in 1 st certification judgment that extension of FR to JP would diminish protection it afforded NP, CC rejected argument, held: s8(4) clearly recognises that some rights not applicable to JP deciding whether right afforded to JP 2 factors: a) Nature of FR in question Rights protecting aspects of human existence cannot apply to JP eg. Right to life, Right not to be tortured Most other rights applicable to JP eg. Right to equality, freedom of expression, property etc b) Nature of JP CC has indicated JP may be entitled to reduced level of protection (as opposed to NP) i.r.o rights protecting human dignity (eg. Privacy) State organs exercising core government functions: eg. Parliament, Police - are JP but nature make them unsuitable to be beneficiaries of FR (used by state to exercise it's powers ) State owned corporations set-up to realise FR eg. SABC, Post Office - should be beneficiaries eg. SABC should be able to invoke freedom of speech when involved in dispute with government/ individual Private juristic persons JP not of self worthy of protection becomes so when used by NP for collective exercise of their FR s8(4) envisages link between protecting activities of JP + FR of the NP behind it JP rarely invokes s8(4) due to courts approach to constitutional litigation (see SU4 Standing) GC Swanepoel 2/11

3 Sufficient to show a right in BOR violated, need not be applicant's rights anyone with sufficient interest may rely on objective inconsistency between BOR + law/conduct Where JP has sufficient interest (s38(a)) may challenge law/ conduct on basis of FR not necessarily benefiting it (eg. Company may challenge law prohibiting sale of wine on Sunday on basis of freedom of religion providing it has sufficient interest in outcome Company need not show freedom of religion benefits JP) Above action not possible when law/conduct impacts solely on JP Can be no objective inconsistency between BOR + Law/ conduct unless s8(4) extends protection to JP (eg. When tax on companies challenged - Person challenging tax must do so on right benefiting JP) Waiver of FR (Read only; textbook pg 39-43) Who is bound by BOR? (Important Distinctions) Legal rights are mutual relationship where X has legal right to something, Y has legal duty to respect X's right Horizontal + Vertical application of BOR Horizontal application: refers to application of BOR to disputes between private parties where constitutionality of legislation is not at issue Vertical application: Refers to dispute which concerns constitutionality of legislation (dispute to which state is party) Direct + Indirect Application BOR applies directly to legal dispute when i. right of beneficiary of BOR infringed by ii. person/entity on whom BOR imposed duty not to infringe the right, during iii. period of operation of BOR and in the iv. national territory Where one of above elements missing BOR may apply indirectly as all law must be interpreted/developed + applied to conform to BOR Distinction Direct application BOR overrides ordinary law/ conduct inconsistent with it + generates own remedies where ordinary legal remedies inadequate Indirect application of BOR Cons + BOR establish objective normative value system - set of values to be respected when common law/ legislation interpreted, developed, applied Doesn't override ordinary law or create own remedies respects rules + remedies of ordinary law but demands that it further it's (BOR) values Direct application of BOR s8(1) Direct vertical application of BOR Section 8(1): The BOR applies to all law, and binds the legislature, the executive, the judiciary and all organs of state Applicant may challenge conduct of any of above as breach of their duties under BOR Legislatures: Include: Parliament GC Swanepoel 3/11

4 Provincial Legislatures Municipal Councils All legislation must comply with BOR Non-legislative conduct of legislature (eg. Determining of internal proceedings, rules, procedures) + their committees and functionaries also subject to s8(1) De Lille v Speaker of National Parliament Facts: Member of National Assembly, Patricia De Lille, suspended form parliament she alleged in meeting of Assembly that some members of governing party acted as spies for apartheid government Decision of Assembly largely based on recommendation of ad hoc (specialised) committee appointed to investigate matter Legal question: Does BOR apply to non-legislative conduct of legislature? Court's finding (Answer to legal question): Yes Reason(s) for finding (Ratio Decidendi): Suspension of member of assembly from parliament for contempt, inconsistent with requirements of representative democracy (penalises not just member but also voters who she represents in Parliament (who have right to be represented)) De Lille not given proper hearing before ad hoc committee right to just administrative action violated Committee was dominated by majority party bias (right to fair trail violated) Right of freedom of expression violated Note: Infringements were unjustifiable under limitation clause Executive: Conduct can be tested against any provisions of BOR except s33 (applies only to conduct amounting to administrative action ) Primary functions is to execute law were creates law still subject to BOR (BOR applies to all law ) Refers to party-political appointees collectively heading government at national, provincial, local level USA makes use of political question doctrine Where issue is political question courts avoid dealing with it must be solved by political process Self imposed limitation of US courts power to review executives conduct Unlikely SA courts will adopt similar doctrine Specific reference to executive in s8(1) President required to uphold,defend,respect Cons as supreme law of RSA s83(b) Courts show considerable respect to political decisions of executive (Ferreira v Levin) GC Swanepoel 4/11

5 Held in Pharmaceutical Manufacturers that, at very least, executives conduct will be tested against rule of law (exercise of public power must not be arbitrary) Court will not interfere with political decision because it disagrees or feels powers were exercised inappropriately Organs of State: Institutions/functionaries are organs of state i.t.o s239 when: 1. They are departments of state or administration in national, provincial, local spheres of Gov State departments bound by BOR whether acting i.t.o legislation or in other capacity (eg. entering into contract) 2. Exercising a power/performing function i.t.o Constitution or provincial constitution Makes clear that constitutional executive powers may be challenged against BOR 3. Exercising public power/performing public function i.t.o any legislation Must derive power/perform function i.t.o statute Nature of power/function (not functionary/institution) must be public (function performed in public interest) Courts + judicial officers specifically excluded from definition in s239 (not organs of state) Judiciary: Some provisions of BOR specifically directed at judiciary, eg. s35(5) Exclusion of evidence in certain circumstances s33 When performing administrative action bound by this right (BOR also applies to non-lawmaking conduct of judiciary) Difficult to determine extent to which judiciary bound: Court decisions become part of common law; may be argued no court may give legal effect to private conduct inconsistent with BOR; private persons will thus always be bound by BOR argument rejected by CC, held this would make s8(2) + 8(3) redundant; 1996 Cons holds private persons only bound by BOR in some instances Common law rules may only be tested directly against BOR if persons relaying on them are directly bound Extent to which BOR applies to private conduct determines if directly applies to common law Importance: Useful tool with which litigant can challenge state conduct Remedy attractive to litigant (where state conduct inconsistent with BOR, declared invalid) s8(2) Direct horizontal application of BOR Section 8(2): A provision of the BOR binds a natural or juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right Direct application used in horizontal disputes when: Common-law rules/offenses challenged with purpose of invalidating them Litigant needs to make use of generous approach to standing courts adopt in BOR litigation In Du Plessis court ignored s8(2) - indirect application preferred in horizontal disputes: GC Swanepoel 5/11

6 Legislature not judiciary should reform common-law; indirect application leaves space for legislature to act Accords with principle of avoidance Direct application to common-law disputes rarely offer advantages to litigant (over indirect application) (eg. Constitutional remedies for private violation of right are unattractive to litigants) Held in Du Plessis that model of indirect application (Where BOR by default applied indirectly to Common-law disputes (renders s8(2) irrelevant)) well suited to judicial system which distinguishes between Constitutional + ordinary jurisdiction SA no longer makes such distinction, has one system of law Khumalo v Holomisa very important Holds BOR must be applied to common-law wherever appropriate - 1 st case in which CC used direct horizontality provisions of Cons 5 Factors to consider when interpreting s8(2): 1) States: Provision may apply to private conduct (not right ) - some provisions (possibly pertaining to same right) apply to conduct of natural + juristic persons whilst others don't eg. Right of access to health care doesn't apply horizontally but right not to be refused emergency medical treatment does 2) States:...binds natural/juristic person if and to the extent that it is applicable Horizontal application of BOR depends on nature of specific private conduct + circumstances of particular case eg. Right of arrested person to be informed promptly of right to silence, of such nature it doesn't apply to private arrests Note: Context/Circumstances of case cannot be used to bypass intention of drafters of Cons to have BOR apply directly to private conduct, eg. Cannot be said that only when persons find themselves in position comparable to power of state, are they bound by s8(2) s8(2) created to overcome assumption that FR need only be protected in vertical relationships 3) Purpose of provision Interpretation of right i.t.o its purpose may exclude its applicability to private conduct either in particular or general, eg: Right to leave Republic purpose is to keep state from holding citizens prisoner doesn't have general horizontal application as opposed to right to human dignity 4) Nature of duty imposed Private + Juristic persons concerned with own interests state concerned with interests of whole society application of BOR shouldn't undermine private liberty to same extent as it places restrictions on sovereignty of GOV eg imposition of duty to spend money - private hospital cannot be required to give free vaccines like state hospital (privately funded) 5) BOR sometimes prescribes whether right applicable to private conduct eg. s9(4) - no person may discriminate directly or indirectly against anyone Above 5 factor indicate that: Rights excluded by their nature form direct application to private conduct include: GC Swanepoel 6/11

7 Citizens Rights, Right to just administrative action, Rights of detained/arrested persons Rights imposing positive duties not applicable to private conduct are: Legislative measures taken to protect environment To realise right to housing Right to food, water, health care, housing Remaining rights may apply horizontally, imposing duties on individuals to conform conduct to BOR Indirect Application of BOR s39(2): "When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objectives of the Bill of Rights" Cons + BOR doesn't directly bind actors - Instead of finding law/conduct unconstitutional + providing constitutional remedy, court applies ordinary law + interprets it to conform with values of BOR, 2 types indirect application: 1. Indirect application to legislation: BOR will always apply directly to legislation but courts must first indirectly apply it to see if conformity is achievable Govender v Minister of Safety and Security When dealing with constitutional challenges to legislation Judge/Magistrate must: I. Examine objects + purport of Act or section under consideration; II. Examine ambit + meaning of rights protected by Cons; III. Ascertain reasonable possibility of interpreting Act/section in conformity with Cons (by protecting the rights therein protected); IV. if interpretation possible to give effect to it; V. if not possible, to initiate steps leading to declaration of constitutional invalidity s39(2) presumes that legislature intended to further values of BOR when passing legislation, unless contrary is proved Where legislation may have multiple interpretations - courts must follow one which brings conformity with Cons (instead of one resulting in finding of unconstitutionality) - AKA "reading down", has 2 requirements: a) Legislation must be brought in line with Cons - not Cons with legislation b) Legislation must be "reasonably" capable of interpretation which makes it constitutional Scope of interpretation not unlimited (must be "reasonably plausible") "Reading down" doesn't mean reading restrictively - both narrow + broad interpretation of legislation may lead to conformity GC Swanepoel 7/11

8 Daniels v Campbell Constitutionality of legislative provisions conferring benefits upon surviving spouses in marriage terminated by death challenged HC held provisions unconstitutional did not confer same benefits to husband/wife in monogamous Muslim marriages as did civil marriages CC set aside HC order held spouses could be interpreted to include spouses in monogamous Muslim marriages not necessary for direct application of BOR 2. Indirect application to Common Law: a) Obligation to develop common law Courts have duty to develop common law in line with spirit, purport + objectives of BOR Common law = judge-made law - courts have greater scope to develop common law in new direction Not constrained by need to provide plausible interpretation of existing rule (as is case with legislation) may freely change + adapt CL to conform to BOR Thus 2 instances in which CL need be developed: 1. Where inconsistent with Cons provisions 2. Where falls short of promoting spirit, purport + objectives of Cons Charmichele v Minister of Safety and Security Appellant X sued state; attacked by man facing charges of rape + attempted murder; Claimed police + state prosecutor failed to protect her against someone with history of violence - HC held state couldn't be delictually liable - confirmed by SCA; CC held common law of delict need be developed to promote spirit, purport + objects of BOR (in particular - right of women to be free of threat of sexual violence); Case referred back to HC; Found in view of need to develop CL to conform with BOR that state liable CC emphasises constitutional obligation to develop CL not discretionary - is "general obligation" Applies to both civil + criminal cases - irrelevant whether parties requested development of CL b) Methodology of indirect application 3 method's of indirectly applying BOR to CL i. Arguing for change in existing principles of CL to better comply with BOR (Eg. Charmichele) ii. Applying CL with due regard to BOR iii. Giving constitutionally-informed content to open-ended CL concepts (Eg. "Public policy") c) Limits on indirect application to CL (limits on power to develop CL) 1) CL must be develop incrementally on case by case basis Development cannot be in abstract - courts must apply law as found in case before it Approach also favoured where BOR directly applied GC Swanepoel 8/11

9 2) Doctrine of Stare Decisis Afrox Healthcare Bpk v Strydom Lower courts bound by decisions of higher courts, however pre-constitutional decisions (decisions made before 1994) give rise to 3 situations: 1. HC not bound by authority (Pre-cons decision of AD (appellate division )) - Direct application - HC convinced pre-cons decision in conflict with Cons 2. HC may depart from authority - pre-cons decision made on open-ended considerations like public interest - HC taking into account values of cons, feels decision no longer reflects public interest 3. HC obliged to follow authority - Indirect application s39(2) - Even if convinced rule must be reformed to conform with Cons SCA holds s39(2) doesn't authorise lower courts to depart from higher authority whether pre or post constitutional - thus stare decisis limits HC power to develop CL (indirectly) HC may still depart from pre-constitutional statutory interpretations of AD (Afrox confines itself to indirect CL application only) Where HC opts for direct application in specific case - will not be bound by precedent set by indirect application in authoritative decision Afrox thus in effect means: Post-constitutional decisions of higher courts are binding, whether on constitutional issues or not Pre-constitutional decisions of higher courts on CL are binding, except in cases Where direct conflict with Cons Involving development of open-ended standards Manner + Application of BOR Present situation - direct + indirect application '96 Cons provides for "one system of law" Parallel systems of "Constitutional" + "non Constitutional" law (under interim Cons) no longer exist Distinction between direct + indirect application still significant especially i.r.o CL Jurisdiction Interim Cons - distinction between direct/indirect application had important jurisdictional implications: CC could hear only constitutional matters and AD only others In Du Plessis CC held indirect application of BOR to CL not Cons matter - AD had jurisdiction Main task of CC - tests law + state conduct against cons (applicants had to show BOR applied directly to law/conduct) AD primarily responsible where BOR applied indirectly GC Swanepoel 9/11

10 '96 Cons - all superior courts have power to apply Cons directly + indirectly to CL Jurisdictional motivation for distinguishing between direct/indirect application no longer applicable to CL Still important for legislation (CC needs to confirm invalidation of legislation) BOR not always directly applicable in horizontal disputes Interim Cons - (DuPlessis) Where dispute between private individuals regulated by CL - BOR can only apply indirectly - Private actors not bound by BOR 96' Cons - situation same as above where private parties i.t.o s8(2) not directly bound CC rejected argument that purpose of binding judiciary to BOR was to make BOR directly applicable to common law - would make s8(3) superfluous (Khumalo v Holomisa) Purpose + effect of direct/indirect application differ Direct application: Law + BOR interpreted to establish if inconsistency present Generates constitutional remedy where inconsistency found, courts declare law/conduct invalid declaration restricts legislatures options of amending law or enacting similar one (invalidates law) Du Plessis Indirect application: Law + BOR interpreted to establish if possibility of avoiding inconsistency Does not create own remedies, where inconsistency found develops law to conform with Cons In CL method of application used makes little difference (Both aim to bring CL into conformity with BOR) Exception where plaintiff cannot find cause of action in existing CL - right in BOR need be directly invoked as CL does not provide right Principle of avoidance: Indirect application to be considered before Direct application S v Mhulungu - Where possible to decide civil/criminal case without reaching constitutional issue such path should be followed "Salutary rule" used in USA entails: Never anticipating question of constitutional law in advance of necessity of deciding it Never formulating rule of constitutional law broader than required for precise facts to which applied allows incremental development of law Reasons for observing "salutary rule" under SA Cons: 1. Procedural reasons Ensures irrelevant issues or issues within HC jurisdiction doesn't get referred to CC (Important where considering application for direct access to CC/ appealing direct) Informs doctrine of justiciability (courts shouldn't decide moot cases/ case not ripe) 2. Substantive reasons Enables legislature to reform law according to own interpretation of cons Organs of state should be given opportunity to interpret/effect Cons GC Swanepoel 10/11 11

11 CC (although has final say) often avoids ruling on constitutionality of legislation before experienced trail/appeal court judges give their views Important consequences of principle of avoidance 1. Even where BOR applies directly court should use ordinary law to resolve dispute Eg. Labour relations Act, Administrative Justice Act - intended to implement BOR - should be interpreted generously before direct application considered 2. Where BOR directly applied + dispute governed by legislation - conduct must be challenged before law implementation of statute must be challenged before provisions thereof Note: Principle of avoidance not absolute rule Depends on circumstances of case Not relevant where clear violation, time not wasted seeking non-cons remedy (usually where statutory provision in dispute and "reading down" failed + no other remedy available) Relevant where interest of applicant in resolution of constitutional issue not clear + issue not ripe for decision or has become academic/moot Temporal Application of BOR (In-depth Knowledge not required, read only Textbook pg 55-63) Territorial application of BOR (In-depth Knowledge not required, read only Textbook pg 63-64) GC Swanepoel 11/11