1.1.1 Shield to protect against state authority; guarantee
freedom from unlawful interference from the state.
1.1.2 Vertical; civil & political - right to life, freedom of
speech, of association and religious freedom.
1.1.3 Blue rights
1.2.1 Socio-economic rights; do not require the
state to refrain from doing something, but to
take positive action. Sword against the state
1.2.2 Claim to resources from the state;
right to housing, medical service,
education and work; not always
1.2.3 Red rights
1.3.1 Rights pertaining to groups. Right to
healthy living environment, right to
development & self-determination.
1.3.2 Green rights
1.4 All rights are interrelated,
interdependent, & indivisible.
Respect, protect, fulfil.
2 Bill of Rights
2.1 Chapter 2 of Const. Any
with BOR may be declared
2.2 Total of 27 sections containing rights; civil & political rights
2.3 Children are afforded special protection: S28(2) child's best interests.
3 Bearers &
3.1 All persons in S.A. are bearers. Class action (group); also public interest.
3.2 Juristic persons are entitled to rights in BOR in certain
instances, if the nature of the juristic person allows it.
3.3 Against whom?
3.3.1 BOR has full vertical application (claim btw individual & the state).
3.3.2 BOR may bind non-state actors (indiv.) - full horizontal application against another person.
3.3.3 Natural/juristic persons are bound by the BOR to
the extent that it is applicable for them to be
3.3.4 S9 always horizontally applicable. S9(4): no
person may discriminate unfairly against anyone.
4 Remedies for human
4.1.1 Statute found unconstitutional; suspension for fixed
period (provide Parliament to re-enact statute).
4.2 'Reading in'
4.2.1 Invalidation of statutory provision may be restricted in respect
to substance if court orders certain words/phrases must be
'read into' the statute to rectify its unconstitutionality.
4.3 Declaration of
4.3.1 Not often; don't get anything out
4.4 Award of
4.4.1 Compensate for unconstitutional
conduct, e.g. De Vos case, 2004
4.5.1 Mandatory: compel
government/violator to take
steps to remedy violation.
4.5.2 Prohibitory: Prevent the
violator from acting in an
4.5.3 Structural/supervisory: Court orders
interdict and plays role in supervising
compliance with the terms of the interdict.
5 Impact of BOR on
5.1 Death penalty: S v Makwanyane , declared
unconstitutional, conflict with right to life, and prohibition
against cruel, inhuman, degrading punishment. Death
penalty can no longer be imposed/carried out.
5.2 Corporal punishment: S v Williams , no longer
possible, conflicts with constitutional rights & values.
5.3 Criminal trials, state has to prove against
accused beyond reasonable doubt. Some
statutes created exceptions by reversing the
onus. Thus, guilt presumed unless proven
innocent. E.g. Drugs and Drug Trafficking Act
140 of 1992; Accused in possession of more
than 115g dagga, assumed to be dealing with
dagga (more serious). Declared unconst. in S v
5.4 S10 of South African Schools Act prohibits
corporal punishment. Christian association
brought application to declare unconstitutional
(prohibiting conduct at independent schools). CC
found S10 to be justifiable limitation to right to
freedom of religion. Application failed.