CLASSIFICATION/BRANCHES OF

THE LAW
and
Constitutional Law and Human
Rights
VIWE GOBENI
 INTRODUCTION
• Law has various subdivisions as fields of law.
• These different fields of law create a systemic understanding of the
law.

SOUTH AFRICAN LAW

International law National Law
International law consists of rules and national law consists of rules and
principles governing the relations and principles that govern a particular
dealings of nations with each other, as well Country.
as the relations between states and
individuals, and relations between
international organizations.
 NATIONAL LAW
National law is further divided into Substantive and procedural law
• Substantive law establishes the rights and obligations that govern people and
organizations; it includes all laws of general and specific applicability.
• further divided into:
1. public law
2. private law

• Procedural/ Adjectival law establishes the legal rules by which substantive law is
created, applied and enforced, particularly in a court of law.
• Criminal procedure
• Civil procedure
• Law of evidence
• Legal interpretation
Substantive law - Public and Private
Law
Public law - deals with the state or government and the relationships between individuals and the state or government
1. constitutional law and human rights
2. administrative law
3. criminal law

Private law- which defines and regulates relationships among subjects of the state individuals, associations and
corporations
4. Law of persons
5. family law
6. law of succession
7. Customary Law
8. Law of property
9. Law of intellectual property
10. Law of obligations
11. commercial law. (insolvency law, the law of negotiable instruments, labour law and the law of sale and
lease.)
 Constitutional Law and Human Rights
INTRODUCTION

• Government/state - Ruling authority

• Subjects- people over which the government rules
• the Government needs a fair degree of power to be able to function
effectively and efficiently. This same power needs a certain degree of
control to prevent abuse of power.
• The relationship between the governments and its subjects and the
relationship between the subjects themselves needs to be regulated.
 Constitutional Law and Human Rights
Definitions

Constitutional law - the area of law relating to the interpretation and application of the
Constitution in the country's courts and regulation of the governments’ functions
Constitution - a body of fundamental principles or established precedents according to
which a state is governed.
• regulates the interrelationship between organs of state by making provision for cooperative
government
• Serves to limit potential abuse of state power by providing that the state must respect,
protect, promote and fulfil the rights in the Chapter 2 (Bill of Rights) which are also human
rights

Constitutionalism - a system that ensures that the government's authority is

determined by a body of laws or constitution
 Constitutional Law and Human Rights
values of the constitution

The moral principles or the accepted foundation standards that govern

society.
• Chapter 1 of the The constitution : The Republic of South Africa is one,
sovereign, democratic state founded on the following values:
a. Human dignity, the achievement of equality and the advancement of human
rights and freedoms.
b. Non-racialism and non-sexism.
c. Supremacy of the constitution and the rule of law.
d. Universal adult suffrage, a national common voters roll, regular elections and
a multi-party system of democratic government, to ensure accountability,
responsiveness and openness.
 Constitutional Law and Human Rights
principles of the constitution

A norm or standard that helps the government to effectively maintain

and protect the interests of all within society.
Constitutional Principles:
• cooperative government
• separation of powers
• checks and balances
• rule of law
• democracy
 Constitutional Law and Human Rights
RULE OF LAW

• The law is supreme and that the government must comply with, or
obey, the law, just as its subjects ought to do.
• The rule of law requires open, clear, stable, general rules that must be applied
without preference by independent courts
• The rule of law also implies the need for the state to be guided by
fundamental rights, and therefore for the government to respect the
individual’s basic rights, especially human dignity, equality and life.
 Constitutional Law and Human Rights
Democracy

Democracy is a system of government in which laws, policies, leadership, and major

undertakings of a state or other polity are directly or indirectly decided by the “people”
• The word democracy comes from the Greek words "demos", meaning people, and "kratos"
meaning power; so democracy can be thought of as "power of the people": a way of governing
which depends on the will of the people.

3 kinds of democracy:
1. Representative democracy- Citizens vote for individuals or political parties to speak and act
for them in government decisions.
2. Participatory democracy- Citizens help government to make decisions, not only by voting
for their representatives, but also in other ways such as participation in the legislative process.
3. Direct democracy - Citizens take part directly in making public decisions without elected or
appointed officials acting as their representatives.
 Constitutional Law and Human
Rights
cooperative government,separation of powers ,checks and
balances
cooperative government - refers to how the three organs of state
interact with each other and how they should work together
(cooperate) to provide citizens with a extensive package of services.
• The Constitution states that the three spheres have to assist and support
each other, share information and coordinate their efforts(s41)
separation of powers - 3 organs of the state (executive, legislative, and
judicial) are kept separate
checks and balances - allows the other organs of the State to see if one
arm is abusing its power or exercising powers it does not have
 Constitutional Law and Human Rights
Human rights in the Constitution

Rights inherent to all human beings, regardless of race, sex, nationality,

ethnicity, language, religion, or any other status.
Human rights have been traditionally classified into the following three
categories:
1. first generation rights
2. second generation rights
3. third generation rights
 Constitutional Law and Human Rights
Human rights in the Constitution- First Generation rights / individual rights

Civil and political rights

These rights include:
• the right to life
• the right to human dignity
• the right to freedom of speech
• the right to freedom of religion
• political rights, which include the right to belong to any political party
• the right to freedom of association, which is the freedom to meet with and form groups with whoever
you choose
• the right to freedom of assembly, which is the freedom to come together as a group
• the right to freedom of movement, or the freedom to go where you please.
The rights are absolute, meaning that they always need to be protected. The rights are also immediate.
This means that if these rights are violated, protection must be provided as soon as possible
 Constitutional Law and Human Rights
Human rights in the Constitution- 2nd Generation rights

Economic, social and cultural rights

These rights include:
• the right to have access to housing
• the right to have access to health care
• the right to education
• labour rights.
 Constitutional Law and Human Rights
Human rights in the Constitution- 3rd Generation rights

Environmental rights
These rights include:
• the right to a clean environment
• the right to peace (not to make war
 Constitutional Law and Human Rights
the Bill of Rights

Fundamental rights of all South African

• Chapter 2 - section 7 -39 of the Constitution
• Section 7-
1. This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines
the rights of all people in our country and affirms the democratic values of
human dignity, equality and freedom.
2. The state must respect, protect, promote and fulfil the rights in the Bill of
Rights.
3. The rights in the Bill of Rights are subject to the limitations contained or
referred to in section 36, or elsewhere in the Bill.
 Constitutional Law and Human Rights
the Bill of Rights

Who can use the Bill of Rights?

Section 38 - Enforcement of rights
Anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of Rights has been
infringed or threatened, and the court may grant appropriate relief, including a declaration of rights. The persons who may
approach a court are -
a. anyone acting in their own interest;
- Port Elizabeth Municipality v Prut NO and Another (1996) 4) SA 318 (E)
b. anyone acting on behalf of another person who cannot act in their own name;
c. anyone acting as a member of, or in the interest of, a group or class of persons;
- Permanent Secretary, Department of Welfare, Eastern Cape and Another v Ngxuza and Others 2001 (4) SA 1184 (SCA)
- Children’s Resource Centre Trust and Others v Pioneer Food and Others (2012) ZASCA 182
• The Supreme Court of Appeal held that class actions should be recognised, laying down the following requirements for such an action:
1. The court must certify the class action before summons is issued.
2. There must be an objectively identifiable class.
3. There should be a claim raising an issue that could be tried by a court.
4. There should be appropriate procedures for distributing the damages that a court may award to the members of the class.
5. Representatives must be suitable to conduct litigation on behalf of the class
d. anyone acting in the public interest; and
e. an association acting in the interest of its members.
 Constitutional Law and Human Rights
the Bill of Rights- Equality

Right to equality
One of the founding values of the Constitution
Section 9 of the Constitution confirms that everyone is equal before the law and has the right to equal protection and benefit of
the law
• (1) Everyone is equal before the law and has the right to equal protection and benefit of the law.
• (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.
• (Affirmative action) Broad Based Black Economic Empowerment Act 53 of 2003 (BBBEE Act) was establised amongst other reason to promote the
achievement of the right to equality.
• Employment Equity Act 55 of 1998,was also created to promote the right to equality
• Minister of Finance v Van Heerden (2004) ZACC 3, the Constitutional Court established a three-pronged test to determine whether an affirmative or
restitutionary measure was acceptable. It indicated that the question is whether the measure:
• targets persons or categories of persons who have been disadvantaged by unfair discrimination
• is designed to protect or advance such persons or categories of persons
• promotes the achievement of equalit
• (3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex,
pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief,culture, language and
birth.
• (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.
• (5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.
• President of the Republic of South Africa and Another v Hugo (1997) ZACC 4 -
 Constitutional Law and Human Rights
the Bill of Rights- Equality

Formal Equality vs Real/ Substantive Equality

Formal equality -which is a belief that, for fairness, people must be consistently
or equally treated at all times.
Substantive equality - which goes beyond the basics of recognizing the equality
of everyone and identifies differences among groups of people with the long-
term goal of greater understanding.Substantive equality attempts to remove
the systemic advantages afforded to majority groups
 Constitutional Law and Human Rights
the Bill of Rights- Equality

Grounds of unfair discrimination

• S9(3) lists the grounds of discrimination, this list is however not exhaustive.
race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation,
age, disability, religion, conscience, belief,culture, language and birth
• Different treatment on one of more of these listed grounds is considered to be
discrimination and will be presumed to be unfair unless it is shown that the
discrimination is fair. An unlisted ground will not be automatically considered as
Discrimination and will not be presumed to be unfair
• Differentiation does not always equal discrimination
• Larbi-Odam v MEC for Education (North-West Province) 1998 (1) SA 745 (CC) ,
• if the reason for the different treatment is based on a quality that could affect a person’s
dignity as a human being (even though that reason is not a listed ground), the court will
consider this to be discrimination.
 Constitutional Law and Human Rights
the Bill of Rights- Equality

EQUALITY CLAUSE
• Everyone is equal before the law and has the rights to equal protection and benefit
of the law.(S9(1))
Harksen v Lane NO 1998 (1) SA 300 (CC)
Established the Harksen v Lane test to determine when the equality clause has been contravened:
1. first it seeks to establish discrimination;
2. once discrimination has been established, the unfairness thereof will have to be established;
3. even if the discrimination is found to be unfair, the next step will seek to justify it in terms of
the limitations clause.
4. Where the different treatment is on an unlisted ground, it will only amount to
5. discrimination if the ground contains qualities that have the potential to damage a person’s
dignity
 Constitutional Law and Human Rights
the Bill of Rights - Equality

Equality Act - PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR

DISCRIMINATION ACT 4 OF 2000
Section 9(4) Constitution -No person may unfairly discriminate against anyone and that
national law should be passed to prevent or prohibit unfair discrimination
• The Equality Act aims to give more detail to the equality provision in the
Constitution and provides for measures to rid the country of unfair discrimination,
particularly on the grounds of race, gender and disability.
• Equality Act provides remedies for victims of unfair discrimination and for persons
whose right to equality has been infringed.
• Equality courts have been created in terms of the Equality Act to deal with
complaints based on the Act’s provisions..
• Pillay v KwaZulu-Natal MEC of Education and Others (2006) 10 BCLR 1237 (N),
 Constitutional Law and Human Rights
the Bill of Rights- Dignity

Dignity as a value- (Section 1 and Section 39)

the concept of human dignity is the belief that all people hold a special value that's
tied solely to their humanity. It has nothing to do with their class, race, gender,
religion, abilities, or any other factor other than them being human
Dignity as a value -S10 of the Constitution
Everyone has inherent dignity and the right to have their dignity respected and
protected.
• Dawood and Another v Minister of Home Affairs and Others 2000 (3) SA
936 (CC)
• MINISTER OF HOME AFFAIRS AND ANOTHER V FOURIE AND ANOTHER; LESBIANAND
GAY EQUALITY PROJECT AND OTHERS V MINISTER OF HOME AFFAIRS ANDOTHERS 2006
(1) SA524 (CC)
 Constitutional Law and Human Rights
the Bill of Rights- life

The right to life is said to have an ambiguous meaning in that it means

both “the right not to be killed” and “the right to have one’s life saved”.
It thus encompasses both a negative and a positive right
Section 11 of the Constitution - everyone has the right to life
• S v Makwanyane 1995 (3) SA 391 (CC)
• Soobramoney v Minister of Health, KwaZulu-Natal 1998 (1) SA 765
(CC).
 Constitutional Law and Human Rights
Bill of rights- Freedom of religion
Section 15 (1) of the Constitution -everyone has the right to freedom of conscience, religion,
thought, belief and opinion.
Freedom of religion- the right to follow whatever religious beliefs or system a person chooses
to follow ( and state may not force anyone to do something against their religious beliefs)
A community right
Section 31 of the Constitution- (1) Persons belonging to a cultural, religious or linguistic community may
not be deniedthe right, with other members of that community—
(a) to enjoy their culture, practise their religion and use their language; and
(b) to form, join and maintain cultural, religious and linguistic associations andother organs of civil society.
(2) The rights in subsection (1) may not be exercised in a manner inconsistent with any
provision of the Bill of Rights.
• Christian Education South Africa v Minister of Education (2000) 4 SA 757 (CC); (2000) 10
BCLR 1051 (CC)
 Constitutional law and human rights
Bill of rights -Right to have access to social assistance

Section 27 of the Constitution - Health care, food, water and social security
(1) Everyone has the right to have access to—
(a) health care services, including reproductive health care;
(b) sufficient food and water; and
(c) social security, including, if they are unable to support themselves and their
dependants, appropriate social assistance.
(2) The state must take reasonable legislative and other measures, within its
available resources, to achieve the progressive realisation of each of these
rights.
(3) No one may be refused emergency medical treatment.
 Constitutional law and human rights
Bill of rights -Right to have access to social assistance

Social Assistance grants include:

• a child support grant, which is paid to a person who takes the main
responsibility for looking after the daily needs of a child who is under
18 years of age
• a disability grant, which is paid to a person who is not fit to work for
her livelihood because of a physical or mental problem
• an older person’s grant, which is paid to a person who has reached
the age of 60 year
 Constitutional law and human rights
Bill of rights -Right to have access to social assistance

Section 27(2) states that The state must take reasonable steps, within its
available resources, towards giving people social assistance.
• The Social Assistance Act 13 of 2004 - which provides for the different
types of grants and requirements
• Agency created in terms of the South African Social Security Agency Act 9
of 2004 - responsible for administering the actual payment of social
assistance
Questions regarding the regarding the state’s duty:
• Rights to social assistance of non-citizens who are permanently resident in
South Africa. - Khosa and Others v Minister of Social Development and
Others 2004 (6) SA 505 (CC)
 Constitutional law and human rights
Bill of rights -Limitation of rights

Section 36 of the Constitution - Limitation of rights/ limitation clause

(1) The rights in the Bill of Rights may be limited only in terms of law of general
application to the extent that the limitation is reasonable and justifiable in an
openand democratic society based on human dignity, equality and freedom,
taking into account all relevant factors, including—
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.
(2) Except as provided in subsection (1) or in any other provision of the
Constitution, nolaw may limit any right entrenched in the Bill of Rights.
 Constitutional law and human rights
Bill of rights -Limitation of rights

A limitation clause enables constitutional rights to be partially limited, to a

specified extent and for certain limited and democratically justifiable purposes,
while prohibiting restrictions that are harmful to democracy by reason on their
purpose, nature or extent.
Application of the limitation clause .
1 Has a right been infringed?
Before we can investigate whether a right can be validly limited (in terms of s 36) in a
particular situation, we must establish that a right has indeed been infringed. If it has
indeed been infringed then we can move on to investigate whether has been validly limited
2 Limitation by a law of general application
For a law to be validly limited it must be a law of general application in other words, the
restricting law must apply to the general public.
 Constitutional law and human rights
Bill of rights -Limitation of rights

3 Factors to be considered
The rights in the Bill of Rights can only be restricted if this would be reasonable and
justifiable in an open, democratic society that is based on human dignity, equality and
freedom.
Factors including:
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.
Any restriction on a right must be reasonable and must be proportional in that the
impact or extent of the restriction must match the importance of the aim served by the
limitation of the right.
 Constitutional law and human rights
Bill of rights -Limitation of rights

Suitable relief
• If a right has been unreasonably infringed, the court may order any
suitable remedies to be awarded. Any remedy that will serve the
purposes of the Constitution is considered to be appropriate.
• Suitable relief includes:
• the power to declare conduct or an Act of Parliament to be invalid
• a declaration of a person’s rights
• an interdict forcing a person or the state to do something or not do
something
• a structural interdict, where the court wants to supervise its order