Introduction to and application of the Bill of Rights

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9.1 Introduction
9.2 The structure of Bill of Rights litigation
9.3 The application of the Bill of Rights
9.3.1 Who is entitled to claim the rights in the Bill of Rights?
9.3.1.1 Introduction
9.3.1.2 Natural persons
9.3.1.3 Juristic persons
9.3.1.4 Standing to enforce rights
9.3.2 Who is bound by the rights in the Bill of Rights?
9.3.2.1 Introduction
9.3.2.2 The direct vertical application of the Bill of Rights
9.3.2.2.1 Introduction
9.3.2.2.2 All organs of state
9.3.2.3 The direct horizontal application of the Bill of Rights
9.3.2.4 The indirect application of the Bill of Rights
9.3.2.4.1 Introduction
9.3.2.4.2 The indirect application of the Bill of Rights to legislation
9.3.2.4.3 The indirect application of the Bill of Rights to the common
law and customary law
Summary

9.1 Introduction
The South African Bill of Rights – constructed in a manner to give effect to the transformative vision of the Constitution – sets
out a unique human rights vision. Its breadth of application – to both the state and, in many cases, to private parties – and the
Copyright 2014. Oxford University Press Southern Africa.

range of rights protected in it, establishes the Bill of Rights as a post-liberal text aimed at facilitating the social and economic
transformation of South Africa while protecting the human dignity of all. However, before we look at the various rights protected
by the Bill of Rights, it is necessary to deal with several important technical issues regarding Bill of Rights adjudication. This is
because the structure of Bill of Rights litigation differs from litigation dealing with other alleged breaches of the Constitution.
When confronted with the question of whether law or conduct is in breach of the Bill of Rights, several preliminary questions
arise. First, a court must ask whether the person or organisation which claims that their rights have been infringed is entitled to
the protection provided by the Bill of Rights and whether the person or organisation which wishes to approach the court has
standing to bring the case. While most of the rights in the Bill of Rights are granted to everyone, including non-citizens, some are
specifically restricted. There are also complicated rules to determine whether juristic persons can claim the protection of the Bill
of Rights.
Once the court has established that the person or organisation which claims that their rights have been infringed is covered by
the Bill of Rights, it must ask whether the person or organisation which is alleged to have infringed the rights is bound by the Bill
of Rights. The South African Bill of Rights does not bind only the state but, when applicable in accordance with complicated
provisions in the Constitution, also private individuals and organisations.
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 After the court has established that the rights of a natural or juristic person have been infringed, it has to determine whether
the infringement is justifiable in terms of the limitation clause set out in section 36. If the court finds that the limitation is
justifiable, the infringement is ‘saved’ and the law or conduct is constitutionally valid. However, if the court finds that the
limitation is not justifiable, then an infringement cannot be saved and the law or conduct is unconstitutional and invalid.
Law or conduct which unjustifiably infringes the Bill of Rights must be declared invalid. Apart from a declaration of
invalidity, however, there are a number of other constitutional remedies a court may issue. Among these are declaratory orders,
prohibitory interdicts, mandatory interdicts, structural interdicts, constitutional damages and meaningful engagement.
This chapter, as well as chapters 10 and 11, deal with the technical questions relating to Bill of Rights adjudication. While we
will discuss the substantive scope and content of the various rights in subsequent chapters, it is important first to answer the
relevant preliminary questions about the manner in which Bill of Rights adjudication should proceed. These questions include the
following:
• Who can claim the rights protected in the Bill of Rights and who is bound to respect the same rights?
• Can the rights be claimed only by people or also by organisations, and if the latter, when?
• Are the rights only binding on the state or are private parties also bound to respect the rights?
• To what extent and how can rights be legally limited and in which situations?
• If there is an infringement of a right, how can that infringement be remedied to ensure that the person whose rights have been
infringed can be assisted?

9.2 The structure of Bill of Rights litigation

When a person alleges that the state or another person has infringed a fundamental right, the process that a court must follow to
determine whether this allegation is valid or not is usually divided into three stages, namely an application stage, a limitation
stage and a remedies stage: 1
• During the application stage, the court has to answer a number of questions. The two most important are:
– Can X go to court to claim his or her right was infringed?
– Is the person who allegedly infringed X’s rights bound by the duties imposed by the right? 2
• During the limitation stage, the court also has to answer a number of questions. The two most important are:
– What is the scope of the right and does the law or conduct infringe the right?
– If it does, is the infringement justifiable in terms of the limitation clause set out in section 36 of the Constitution? 3
• During the remedies stage, the court has to decide what the most appropriate remedy would be. It is important to note,
however, that this stage arises only in those cases in which the court has found that law or conduct unjustifiably infringes a
fundamental right or does not promote the values in the Bill of Rights. 4

Figure 9.1 The three stages of Bill of Rights adjudication

The constitutional provisions that regulate these questions are set out in the operational provisions of the Bill of Rights. Unlike

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 the substantive provisions dealing with specific rights, the operational provisions do not regulate the substance of the fundamental
freedoms and rights that are guaranteed in the Bill of Rights. Instead, they regulate the manner in which the Bill of Rights
operates and the manner in which it can be enforced by the courts. 5
The operational provisions are:
• section 7: the state’s duty to respect, protect, promote and fulfil the rights in the Bill of Rights
• section 8: who the right binds
• section 36: the limitation of rights
• section 37: the suspension of rights in a state of emergency
• section 38: who has standing to enforce the rights
• section 39: the interpretation of rights.

Apart from these operational provisions, sections 167 and 172 of the Constitution also regulate the enforcement of the Bill of
Rights. These provisions deal with the jurisdiction of the courts, especially in constitutional matters, and the remedies that the
courts may grant when a provision of the Bill of Rights has been unjustifiably infringed.

PAUSE FOR REFLECTION

Classifying rights
As we have already seen, the substantive provisions of the Bill of Rights are those provisions that
regulate the actual substance of the rights that are entrenched and protected in the Bill of Rights. These
rights may be classified in a number of different ways and some rights may fall into more than one
category.
One of the most widely used methods of classifying rights is to draw a distinction between civil and
political rights, on the one hand, and social and economic rights on the other hand. This classification is
based on the distinction drawn between the rights protected in the International Covenant on Civil and
Political Rights (ICCPR)6 and the rights protected in the International Covenant on Economic, Social and
Cultural Rights (ICESCR).7
Civil and political rights are aimed at protecting people from unlawful interference by the state,
private organisations and individuals and at guaranteeing the ability of everyone to participate fully in the
civil and political life of the state. Civil and political rights include the right to equality, the right to freedom of
expression, the right to a fair trial, the right to freedom of assembly and the right to elections and to vote.8
Social and economic rights include the right to education, the right to housing, the right to health and
the right to social security. They impose an obligation on the state not to interfere with the existing
enjoyment of these rights and, where applicable, to take positive steps to provide people with the resources
and the services they need to live a decent, fulfilling and minimally good life.9
Another common method of classifying human rights is to draw a distinction between first generation,
second generation and third generation rights. This classification is based on the historical development of
human rights.
First generation rights are the oldest. They arose in the eighteenth century and were included in the
American Bill of Rights (1789–1791) and the French Declaration of the Rights of Man and Citizen (1789).
First generation rights consist largely of traditional civil and political rights. Sometimes they are also referred
to as blue rights.10
Second generation rights arose at the end of the nineteenth century and the beginning of the
twentieth century. They were included in the 1931 Constitution of Spain and the 1936 Constitution of the
Union of Soviet Socialist Republics. Second generation rights consist largely of social and economic rights.
Sometimes they are also referred to as red rights.11
Third generation rights are the most recent and arose towards the end of the twentieth century. Third
generation rights include the right to self-determination, the right to development and the right to a healthy
environment. Sometimes they are also referred to as green rights.12
While the classifications set out above provide us with some insights into the history and nature of the
rights protected in the Bill of Rights, it is important to note that the Bill of Rights itself does not classify or
categorise rights in any of these ways. Although the Bill of Rights contains examples of the different
categories or generations of rights, it does not distinguish in any way between the various rights.
Implicit, therefore, in the Bill of Rights is the idea that our Constitution does not create a hierarchy of

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 rights.13 Rather than drawing hard and fast distinctions between the rights, the courts have been mindful to
show the rights in the Bill of Rights as being interrelated, interdependent and mutually supporting.

9.3 The application of the Bill of Rights

During the application stage a court has to decide who is entitled to claim the right in question and who is bound by the right in
question.14 In addition, it also has to decide whether the Bill of Rights applies directly or indirectly to the dispute before it. 15
When the Bill of Rights applies directly, the purpose is to determine whether the ordinary rules of law (legislation, common
law and customary law) are consistent with the Bill of Rights. If they are not, the Bill of Rights overrides the ordinary rules of
law. In these cases, the Bill of Rights also generates its own set of special remedies, for example declaratory orders, structural
interdicts, constitutional damages and meaningful engagement.16
When the Bill of Rights applies indirectly, the purpose is to determine whether the ordinary rules of law promote the values
of the Bill of Rights. If they do not, the Bill of Rights does not override the ordinary law nor does it generate it own special
remedies. Instead, the court uses the Bill of Rights to develop the rules and remedies of the ordinary law to avoid any
inconsistency between the ordinary law and the Bill of Rights. 17
We consider each of these issues in turn in the next sections.

9.3.1 Who is entitled to claim the rights in the Bill of Rights?

9.3.1.1 Introduction
In most cases, ‘everyone’ can claim the rights contained in the Bill of Rights. This includes everyone present in South Africa as
well as non-citizens. A limited number of rights are qualified in that only ‘citizens’, 18 ‘children’ 19 or ‘detained’ persons can
claim them.20 When a specific provision states that ‘everyone’ can claim the right, it usually means that natural persons 21 can
claim the right and, in some cases, also juristic persons. 22 However, as we shall see, not all rights can be claimed by juristic
persons.

9.3.1.2 Natural persons

Most of the rights in the Bill of Rights are for the benefit of ‘everyone’. Section 9(1), for example, provides that ‘ everyone is
equal before the law and has the right to equal protection and benefit of the law’; section 11 that ‘ everyone has the right to life’;
and section 13 that ‘no one may be subjected to slavery, servitude and forced labour’.
The courts have interpreted the reference to everyone to refer not only to South African citizens, but also to various
categories of immigrants, be they permanent residents 23 or persons present in South Africa on the basis of a temporary permit
such as a work permit or a study permit.24 Even foreigners who have yet to be lawfully admitted into South Africa have been
recognised as being beneficiaries of the rights guaranteed in the Bill of Rights. 25 The term ‘everyone’, however, does not include
a foetus.26
While most of the rights in the Bill of Rights are for the benefit of ‘everyone’, some are for the benefit of a narrower category
of persons only. Section 19(1)(a), for example, provides that ‘every citizen is free to make political choices, which includes the
right to form a political party’; section 23(2)( a) that ‘every worker has the right to form and join a trade union’; and
section 28(1)(a) that ‘every child has the right to a name and a nationality from birth’. Only those natural persons who fall into
the definition of the category in question may claim these rights. 27
To determine whether a particular person may claim such a right, the courts will have to interpret the scope of the category in
question. In South African National Defence Union v Minister of Defence,28 for example, members of the South African National
Defence Force claimed that they were entitled to form and join a trade union in terms of section 23(2)( a) of the Constitution. To
decide whether this claim was valid, the Constitutional Court had to establish whether the word ‘worker’ was wide enough to
include members of the armed forces. In its judgment, the Constitutional Court found that the word ‘worker’ was indeed wide
enough to include members of the armed forces. The Court based its decision on the fact that members of the armed forces
receive many of the same benefits as other employees, for example a salary. 29 In addition, the International Labour Organisation

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 considers members of the armed forces to be workers for the purposes of the Convention on the Freedom of Association and
Protection of the Right to Organise 87 of 1948 and the Convention on the Right to Organise and Collective Bargaining 98 of
1949, both of which South Africa has signed and ratified.30

9.3.1.3 Juristic persons

It seems self-evident that individual human beings are entitled to the protection provided by the rights in the Bill of Rights. But
what about other non-human bodies? Can a big corporation claim to have a right to free speech? Can a religious group claim the
right to bodily integrity. Can the human dignity of a tennis club be infringed? Can a trade union claim it has a right not to be
discriminated against?
In terms of the Constitution, apart from natural persons, juristic persons, such as churches, companies, trade unions and
universities that have legal personality, may also claim some of the rights in the Bill of Rights in certain circumscribed
circumstances. It is, however, important to note that unlike human beings, these juristic persons will not always be able to claim
protection of a right. Section 8(4) of the Constitution provides in this respect that ‘[a] juristic person is entitled to the rights in the
Bill of Rights to the extent required by the nature of the rights and the nature of that juristic person’.
This provision, while recognising juristic persons as bearers of rights, suggests that the rights that juristic persons can claim
will be the subject of interpretation by the courts. To determine whether a juristic person can claim a particular right, therefore,
the courts have to take into account at least two factors, namely:
• the nature of the right being invoked
• the nature of the juristic person in question.

In so far as the first factor is concerned, it is quite clear that there are some rights which by their very nature cannot be claimed by
juristic persons, for example the right to life (section 11), the right to vote (section 19) and the right to health care, food and social
security (section 27). This is because juristic persons cannot enjoy these rights as the rights are peculiarly related to individual
human beings. Juristic persons are not alive, they cannot vote and they do not require health care, food or social security. 31 There
are, however, other rights which juristic persons may claim, for example the rights to equality (section 9); privacy (section 14);
freedom of expression (section 16); freedom of association (section 18); property (section 25); access to information (section 32);
just administrative action (section 33); and access to courts (section 34). There is nothing in the nature of these rights which
prevents juristic persons from enjoying them.32
In so far as the second factor is concerned, a distinction may be drawn between those juristic persons which can claim the
rights in the Bill of Rights and those which cannot. This distinction is based on the aim or purpose of the juristic person in
question.33 If natural persons established the juristic person to help them achieve their rights, the juristic person may be entitled
to claim the rights in the Bill of Rights. For example, a church or a media company which has legal personality may be entitled to
claim the right to religious freedom or the right to freedom of expression. This is because natural persons established the church
or the media company to help them achieve those particular rights.34
If, however, the juristic person was not created by natural persons to help them achieve their human rights, it may not be
entitled to claim the rights in the Bill of Rights. For example, organs of state such as Parliament or the President may not be
entitled to claim any rights in the Bill of Rights. This is because their purpose is to exercise the powers that have been given to
them in a way that promotes and protects the rights of the people. They are not, therefore, entitled to the rights in the Bill of
Rights. Instead, they are bound by them.35

COUNTER POINT

Controversy about the entitlement of juristic persons to some of the rights in the Bill of
Rights
The fact that juristic persons are entitled to claim the benefit of some of the rights in the Bill of Rights has
caused much controversy. This is because juristic persons frequently want to claim these rights simply to
promote their business interests and to make a profit. The debate about whether such juristic persons can
claim rights is often ideological and pro-business supporters of the free market system often support wider
protection for juristic persons. This was illustrated during the United States presidential campaign in 2012
when the Republican candidate, Mitt Romney, said at a campaign stop: ‘Corporations are people, my
friend.’ 36
The fact that section 8(4) of the Constitution allows juristic persons to claim the benefits of some of the
rights in the Bill of Rights was, therefore, challenged in Certification of the Constitution of the Republic of

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 South Africa, 1996.37 In this case, the challengers argued that by allowing juristic persons to claim some of
the rights in the Bill of Rights, section 8(4) reduced the protection the Bill of Rights gave to natural persons.
The Constitutional Court, however, rejected this argument on the grounds that natural persons often
come together and form a juristic person to help them achieve and protect their fundamental rights. For
example, natural persons may establish a media company to achieve and protect the right to freedom of
expression. That media company must, therefore, have the power to claim the benefits and protection of
the rights in the Bill of Rights.38

9.3.1.4 Standing to enforce rights

It is important to note that the requirements set out in section 8(4) of the Constitution have not played a significant role in
practice. This is because the Constitution has adopted a generous approach towards legal standing. Section 38 of the Constitution
provides in this respect that:

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;
( 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;
( d) anyone acting in the public interest;
(e) an association acting in the interest of its members.

The Constitutional Court has considered the scope and ambit of section 38 on a number of occasions. 39 In these cases, the Court
has held that a complainant does not have to show that he or she has a ‘direct and personal interest’ in the relief claimed. 40
Instead, a complainant simply has to:
• allege that one of the fundamental rights set out in the Bill of Rights has been infringed or threatened
• show that one of the categories of persons listed in section 38 of the Constitution has a ‘sufficient interest’ in obtaining a
remedy.41

An important consequence of this approach is that an applicant does not have to allege that a particular person’s fundamental
right has been infringed or threatened. An applicant simply has to allege that a fundamental right has been infringed or
threatened.42
It is important to note, however, that it is not enough simply to allege that a fundamental right has been infringed or
threatened. In addition, a complainant must also show that one of the categories of persons listed in paragraphs ( a) to (e) of
section 38 of the Constitution has a sufficient interest in the remedy the complainant is seeking. 43 For example, if a complainant
approaches a court in terms of section 38(a) of the Constitution, the complainant must show that he or she has a sufficient
interest. If a complainant approaches the court in terms of section 38( d) of the Constitution, the complainant must show that the
public has a sufficient interest.
Although the Constitutional Court has adopted a generous approach to standing, in Giant Concerts CC v Rinaldo Investments
(Pty) Ltd and Others it held that this does not mean that litigants, and especially own-interest litigants, have a broad and
unqualified capacity to litigate against illegalities.44 An own-interest litigant must still show that he or she has a ‘sufficient
interest’ in the relief he or she is applying for.
In this case, the Constitutional Court held that when it comes to deciding whether a litigant does have a sufficient
own-interest, a court must assume that the act or decision being challenged is, in fact, unlawful. This is because the question of
standing is a point in limine which has to be decided before the merits of the case. The merits of the case, therefore, must be
separated from the issue of standing.45
The separation of the merits of the case from the question of standing, the Constitutional Court held further, has two
important consequences for an own-interest litigant:
• First, simply because the act or decision being challenged is unlawful does not mean that the applicant has legal standing. To
have standing, an applicant must also have a sufficient interest in the lawfulness of the act or decision in question. 46
• Second, if an own-interest litigant does not have a sufficient interest, he or she will be denied legal standing even though the
result could be that an unlawful act or decision stands.47

When a litigant acts solely in his or her own interest, therefore, there is no broad or unqualified capacity to litigate against

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 illegalities. Something more must be shown.48 How much more, the Constitutional Court went on to hold, has been set out in
several of its previous judgments, especially Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others ;
49 Minister of Home Affairs v Eisenberg & Associates In re: Eisenberg & Associates v Minister of Home Affairs and Others ; 50

and Kruger v President of the Republic of South Africa and Others .51 A careful examination of these judgments, the
Constitutional Court noted, shows the following:

1. To establish own-interest standing under the Constitution a litigant need not show the same
‘sufficient personal and direct interest’ that the common law requires, but must still show that a
contested law or decision directly affects his or her rights or interests, or potential rights or
interests.
2. This requirement must be broadly and generously interpreted to accord with constitutional
goals.
3. The interest must, however, be real and not hypothetical or academic.
4. Even under the requirements for common law standing, the interest need not be capable of
monetary valuation, but in a challenge to legislation purely financial self-interest may not be
enough – the interests of justice must also favour affording standing.
5. Standing is not a technical or strictly-defined concept. And there is no magical formula for
conferring it. It is a tool a court employs to determine whether a litigant is entitled to claim its
time, and to put the opposing litigant to trouble.
6. Each case depends on its own facts. There can be no general rule covering all cases. In each case,
an applicant must show that he or she has the necessary interest in an infringement or a
threatened infringement.52

Apart from the requirements that must be satisfied when a person approaches a court in his or her own interest, the Constitutional
Court has also considered the requirements a person must satisfy when he or she approaches a court in the public interest.
In her minority judgment in Ferreira; Vryenhoek, O’Regan J held that a person will be granted standing to act in the public
interest only if he or she is genuinely acting in the public interest. 53 To determine whether a person is genuinely acting in the
public interest, the following factors must be taken into account:
• whether there is another reasonable and effective manner in which the challenge can be brought
• the nature of the relief sought and the extent to which it is of general and prospective application
• the range of persons or groups who may be directly or indirectly affected by any order made by the court and the opportunity
that those persons or groups have had to present evidence and argument to the court. 54

Despite the fact that the approach set out above formed a part of O’Regan J’s minority judgment, it was referred to with approval
by the Constitutional Court in its subsequent judgment in Lawyers for Human Rights and Other v Minister of Home Affairs and
Other.55 In this case, the Court held that even though the approach adopted by O’Regan J formed a part of her minority
judgment, it was not inconsistent with anything said in the majority judgment on the issue of standing. This is because the
majority in Ferreira; Vryenhoek found that the applicants were acting in their own interests and, consequently, that it was not
necessary also to consider whether they had standing to act in the public interest. 56
Besides referring to the approach adopted by O’Regan J with approval, the Court in Lawyers for Human Rights also held that
the list of relevant factors is not closed. Other factors that should be taken into account include the degree of vulnerability of the
people affected, the nature of the right said to be infringed and the consequences of the infringement of the right. 57

9.3.2 Who is bound by the rights in the Bill of Rights?

9.3.2.1 Introduction
Once a court has determined who can claim rights in terms of the Bill of Rights, it has to ask a second question, namely against
whom can these rights be claimed. In other words, the court has to ask who is bound to respect the rights claimed by either a
natural or juristic person. Although ‘everyone’ is entitled to claim the benefit of the rights (or at least most of the rights) in the
Bill of Rights, not everyone is bound by every right contained in the Bill of Rights. This is because while the Bill of Rights is
always binding on the state, it is not always binding on private persons.
When it comes to the question of who is bound by the Bill of Rights, it is important to distinguish between the direct
application of the Bill of Rights and the indirect application of the Bill of Rights:
• When the Bill of Rights applies directly, the purpose is to determine whether the ordinary rules of law (legislation, common
law and customary law) are consistent with the Bill of Rights. If they are not, the Bill of Rights overrides the ordinary rules

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 of law. When the Bill of Rights applies directly, it also generates its own set of special remedies, for example reading down
or reading in.58
• When the Bill of Rights applies indirectly, the purpose is to determine whether the ordinary rules of law promote the values
of the Bill of Rights. If they do not, the Bill of Rights does not override the ordinary law or generate its own special
remedies. Instead, the Bill of Rights is used to develop the rules and remedies of the ordinary law to avoid any inconsistency
between the ordinary law and the Bill of Rights.59

Apart from distinguishing between the direct and indirect application of the Bill of Rights, it is also important to distinguish
between the vertical application of the Bill of Rights and the horizontal application of the Bill of Rights:
• When the Bill of Rights applies vertically, it confers rights on private persons and imposes obligations on the state to
respect, protect, promote and fulfil the rights in the Bill of Rights. It does not impose these obligations on private persons. In
other words, when the Bill of Rights applies vertically, only the state is bound by the Bill of Rights. An important
consequence of this approach is that the Bill of Rights may be applied directly to a legal dispute only if one of the parties to
that dispute is the state. We refer to a dispute in which one of the parties is the state as a vertical dispute.60
• When the Bill of Rights applies horizontally, it not only confers rights on private persons, but also imposes obligations on
them to respect the rights in the Bill of Rights, at least in certain circumstances. In other words, when the Bill of Rights
applies horizontally, both the state and private persons are bound by the Bill of Rights. An important consequence of this
approach is that the Bill of Rights may be applied directly to a legal dispute even if both of the parties to that dispute are
private persons. We refer to a dispute in which neither of the parties is the state as a horizontal dispute.61

In South Africa, unlike in most other constitutional democracies, the Bill of Rights applies not only directly and indirectly, but
also vertically and sometimes horizontally. Section 8(1) of the Constitution governs the direct vertical application of the Bill of
Rights while section 8(2) governs the direct horizontal application. Section 39(2) of the Constitution governs the indirect vertical
and horizontal application of the Bill of Rights.

COUNTER POINT

When fundamental rights are abused by private persons

In the many constitutional democracies such as the United States, the Bill of Rights applies vertically and
not horizontally. This is because the state is considered to be in a unique position to abuse or threaten the
fundamental rights of private persons. The reason why the state is considered to be in a unique position to
abuse or threaten the fundamental rights of private persons is because political or state authority is vested
in the state. This means that the state is more powerful than private persons and that the relationship
between them is always an unequal or vertical one.
Unfortunately, this argument overlooks the fact that fundamental rights may be abused or threatened
not only by the state but also by private persons. This is because even though none of the parties in a
private relationship can be said to have political or state authority, it does not necessarily follow that the
relationship between private persons is always an equal or horizontal one. Some private organisations
wield enormous power and can use this power to infringe the rights of others. As a result of factors such as
the free market system and the privatisation of state functions, it is quite clear that some private persons
are more powerful than others, for example banks, insurance companies and those companies that provide
important services such as electricity and water.
Hutchinson, for example, argues that it is corporations and not governments that pose the greatest
threat to individuals because they make the most crucial decisions about human and economic resources.
‘There is no choice,’ he argues, ‘in dealing with corporations, for their activities pervade the lives of every
citizen. How we put food on the table, what food we put on the table, what we pay to put food on the table,
and what food we think we should put on the table are all questions that are deeply shaped by the actions
of corporations and the life-images that they project.’ 62
Given that fundamental rights may be abused by private persons, most constitutional scholars and
human rights activists have welcomed as a progressive step the fact that the South African Bill of Rights
‘binds a natural or a juristic person if, and to the extent that, it is applicable’.63

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 9.3.2.2 The direct vertical application of the Bill of Rights

9.3.2.2.1 Introduction
Section 8(1) of the Constitution governs the direct vertical application of the Bill of Rights. This section stipulates in unqualified
terms that ‘[t]he Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state’.
Despite the fact that section 8(1) of the Constitution provides that the Bill of Rights applies directly to ‘all law’, the
Constitutional Court has held that section 8(1) does not regulate the direct application of the Bill of Rights to disputes between
private persons that are governed by the common law or customary law. This is because section 8(2) of the Constitution regulates
the direct application of the Bill of Rights to these horizontal disputes. 64
For the same reasons, section 8(1) does not regulate the direct application of the Bill of Rights to the judiciary when it is
called on to resolve a dispute between private parties that is governed by the common law or customary law. This is because
section 8(2) of the Constitution also regulates the direct application of the Bill of Rights to the judiciary in these horizontal
disputes.65
The fact that section 8(2) rather than section 8(1) regulates the direct application of the Bill of Rights to horizontal disputes
was confirmed by the Constitutional Court in its judgment in Khumalo and Others v Holomisa.66
The facts of this case were as follows. The respondent, who was a prominent politician, sued the appellants, who were the
publishers of a newspaper, for defamation. The appellants, however, raised an exception to the respondent’s claim. The exception
was that the common law rules of defamation infringed the constitutional right to freedom of expression guaranteed in section 16
of the Constitution because they did not impose an obligation on the plaintiff to prove that the defamatory statements were false.
Instead, they imposed an obligation on the defendant to prove that they were true.
The Constitutional Court dismissed the exception. In arriving at this decision, however, the Constitutional Court had to
answer a number of questions. One of these was whether section 16 of the Constitution applied directly to the dispute even
though it was governed by the common law and neither of the parties was an organ of state.
To answer this question, the Constitutional Court stated it had to deal with two issues:
• first, whether section 8(1) or section 8(2) of the Constitution governed the direct horizontal application of the Bill of Rights
• second, if section 8(2) governed the direct horizontal application of the Bill of Rights, whether section 16 satisfied the
requirements of section 8(2).67

In so far as the first issue was concerned, the Constitutional Court held that section 8(2) and not section 8(1) governed the direct
horizontal application of the Bill of Rights. In arriving at its conclusion, the Constitutional Court began by noting that
sections 8(1) and 8(2) of the Constitution distinguish between two categories of persons and institutions bound by the Bill of
Rights. Section 8(1) binds the legislature, executive, judiciary and all organs of state without qualification, while section 8(2)
provides that natural and juristic persons are bound by the provisions of the Bill of Rights, but only ‘to the extent that it is
applicable, taking into account the nature of the right and the nature of the duty imposed by the right’. 68
Once a court has determined that a natural person is bound by a particular provision of the Bill of Rights, the Constitutional
Court noted further, section 8(3) of the Constitution provides that the court must apply and if necessary develop the common law
to the extent that legislation does not give effect to the right. In addition, it also provides that the rules of the common law may be
developed so as to limit a right as long as the limitation is consistent with the provisions of section 8(3)( b).69
If section 8(1) of the Constitution governed the direct application of the Bill of Rights to a horizontal dispute, the
Constitutional Court went on to note, the Bill of Rights would apply directly to horizontal disputes in all circumstances and
section 8(2) read together with section 8(3) would have no purpose. To avoid such an absurd result, the direct application of the
Bill of Rights to horizontal disputes had to be governed by section 8(2) and not by section 8(1). 70
In so far as the second issue was concerned, the Constitutional Court noted that the appellants were members of the media
who were expressly identified as bearers of constitutional rights to freedom of expression and that there could be no doubt that
the law of defamation does affect the right to freedom of expression. The Constitutional Court noted further:

Given the intensity of the constitutional right in question, coupled with the potential invasion of that
right which could be occasioned by persons other than the state or organs of state, it is clear that the
right to freedom of expression is of direct horizontal application in this case as contemplated by
section 8(2) of the Constitution.71

Apart from these exceptions, section 8(1) of the Bill of Rights regulates the direct application of the Bill of Rights:
• to disputes between the state and private parties that are governed by legislation, the common law or customary law (‘all
law’)
• to disputes between private parties that are governed by legislation, but not by the common law or customary law.

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 COUNTER POINT

An interpretation of the Khumalo judgment

Following the Constitutional Court’s judgment in Khumalo, it seems to be fairly clear that section 8(2) of the
Constitution regulates the direct application of the Bill of Rights to disputes between private parties that are
governed by the common law or customary law. It is not entirely clear, however, whether section 8(1) or
section 8(2) regulates the direct application of the Bill of Rights to disputes between private parties that are
governed by legislation.
Although the judgment in Khumalo deals with the common law of defamation, Woolman argues that the
Constitutional Court held, by implication, that section 8(2) regulates the direct application of the Bill of
Rights to disputes between private parties that are governed not only by the common law or customary law,
but also by legislation. In other words, section 8(2) regulates the direct application of the Bill of Rights to all
disputes between private persons.72
If this interpretation of the judgment in Khumalo is correct, he goes on to argue, then certain criticisms
may be levelled against it. Among these are the following:
• First, it defers – and potentially suppresses – the direct application of the Bill of Rights to disputes
between private parties, irrespective of whether the dispute is governed by legislation, the common law
or customary law.73
• Second, less law is subject to the direct application of the Bill of Rights under the Khumalo Court’s
reading of the Constitution than it was under the Court’s reading of the interim Constitution in Du
Plessis and Others v De Klerk and Another.74 This is because it was generally accepted that the Bill of
Rights in the interim Constitution did apply directly to disputes between private persons governed by
legislation.75
• Third, while the provisions of a statute or regulation may not necessarily be subject to the direct
application of the Bill of Rights if the dispute was between two private parties, they would automatically
be subject to the direct application of the Bill of Rights if the dispute was between a private party and
the state. This distinction is absurd because it infringes the doctrine of objective unconstitutionality.
This doctrine provides, inter alia, that constitutional cases, and thus the constitutionality of laws, cannot
be distinguished on the basis of the parties before the court.76

Given the important obligations the Bill of Rights imposes on the bodies and institutions that are bound by it, it is important to
determine which bodies and institutions fall within the scope of the words ‘legislature’, ‘executive’, ‘judiciary’ and ‘all organs of
state’. While the Constitution itself defines what is meant by the term ‘organ of state’, it does not define what is meant by the
words ‘legislature’, ‘executive’ and ‘judiciary’. This is because the meaning of these words may be discerned from the provisions
of the Constitution. Given that we have already discussed what is meant by the words ‘legislature’, ‘executive’ and ‘judiciary’ in
Part I of this book, we are only going to consider what is meant by the term ‘organ of state’ here.

9.3.2.2.2 All organs of state

Recall that section 8(1) of the Constitution states that the rights in the Bill of Rights bind all organs of state. In so far as the term
‘organ of state’ is concerned, section 239 of the Constitution provides that ‘organ of state’ means:

( a) any department of state or administration in the national, provincial or local sphere of

government; or
( b) any other functionary or institution
(i) exercising a power or performing a function in terms of the Constitution or a provincial
constitution; or
(ii) exercising a public power or performing a public function in terms of any legislation,
but does not include a court or a judicial officer.

In terms of this definition, all organs of state may be divided into three categories:
• first, any department of state or administration in the national, provincial or local spheres of government
• second, any functionary or institution exercising a power or performing a function in terms of the Constitution or a provincial

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 constitution
• third, any functionary or institution exercising a public power or performing a public function in terms of any legislation. 77

While it is usually easy to identify those bodies or institutions that fall into the first two categories, it is not always easy to
identify those bodies or institutions that fall into the third category. This is because it is not always clear whether a body or
institution is exercising a public power or performing a public function in terms of any legislation. Is the University of Cape
Town, for example, an organ of state? What about state-owned companies such as Eskom, SAA or Telkom? What about state
institutions that have been privatised such as Iscor or, as it is called today, Mittalsteel South Africa Ltd?
The manner in which a court should go about determining whether a body or institution is exercising a public power or
performing a public function was considered by the Supreme Court of Appeal (SCA) in Calibre Clinical Consultants (Pty) Ltd
and Another v National Bargaining Council for the Road Freight Industry and Another .78
The facts of this case were as follows. In 2007, the respondent decided to establish an antiretroviral programme for
HIV-positive employees in the road freight industry. The respondent, however, did not want to manage and implement the
programme itself and invited interested parties to submit written proposals for the provision of these services.
The appellant submitted a written proposal and was then invited to present its proposal to an interview panel. After the
presentation, the appellant was told that the respondent had decided in principle to award it the tender, but that a due diligence
review still had to be performed.
Unfortunately, the due diligence review revealed a number of problems with the appellant’s financial status. Following a long
and complicated process, during which the appellant attempted, but failed, to address its financial problems, the respondent
rejected the appellant’s proposal and awarded the tender to another party.
The appellant then applied to the South Gauteng High Court: Johannesburg for an order reviewing and setting aside the
respondent’s decision not to award the tender to it. It based its application on the grounds that the respondent’s decision infringed
the right to procedural fairness guaranteed in the Promotion of Administrative Justice Act (the PAJA). 79
The High Court dismissed the application and the appellant then appealed to the SCA which dismissed the appeal. In arriving
at this decision, the SCA began by pointing out that a decision can only be reviewed in terms of the PAJA if it is an
administrative act. A decision will only be classified as an administrative act if, inter alia, it is made by an organ of state as
defined in section 239 of the Constitution.80
Given that the respondent was not ‘exercising a power or performing a function in terms of the Constitution or a provincial
constitution’,81 the key question that had to be answered, therefore, was whether it was ‘exercising a public power or performing
a public function in terms of any legislation’.82
In so far as this question was concerned, the SCA observed that while there is no single test to determine whether a power or
function is of a public nature, the courts both in South Africa and in foreign comparable jurisdictions have usually taken into
account the extent to which the power or function may be described as ‘governmental’ in nature. The more governmental in
nature a power or function is, therefore, the more it may be said to be public in nature. 83
The sorts of factors that courts will take into account to determine whether a power or function is of a public nature,
therefore, include the extent to which the powers or functions are ‘woven into a system of governmental control’, or are
‘integrated into a system of statutory regulation’, or are ‘regulated, supervised and inspected’ by government, or are ‘linked to the
functions and powers of government’, or are ‘publicly funded’ and so on. 84
This approach, the SCA observed further, is a useful one because it asks whether the person or body which is exercising the
power or performing the function is accountable to the public for the way in which the person or body has exercised the power or
performed the function. It is about accountability to those with whom the functionary or body has no special relationship other
than that they are affected by its conduct. The question in each case will be whether the person or body can properly be said to be
accountable, notwithstanding the absence of any such special relationship.85
After setting out these principles, the SCA turned to apply them to the facts. In this respect, the Court found that even though
the Labour Relations Act 86 regulates the establishment and powers of bargaining councils, they are essentially voluntary
associations created by agreement to perform functions in the interests and for the benefit of their members. They are, therefore,
not accountable to the public for the procurement of services for projects that are implemented for the benefit of their members.
Consequently, bargaining councils cannot be said to be exercising public powers or performing public functions. 87
In light of this judgment, therefore, it can be said that the exercise of a power or the performance of a function may be
classified as public if the body or institution that has exercised the power or performed the function is accountable to the public
for the manner in which it has exercised that power or performed that function.

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 9.3.2.3 The direct horizontal application of the Bill of Rights
While section 8(1) of the Constitution governs the direct vertical application of the Bill of Rights, section 8(2) governs the direct
horizontal application of the Bill of Rights. Section 8(2) provides in this respect that ‘[a] provision in the Bill of Rights binds a
natural or a 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’.

PAUSE FOR REFLECTION

The Bill of Rights in the interim Constitution did not apply directly to horizontal
disputes
The fact that the Bill of Rights may be applied directly to a horizontal dispute if the requirements of
section 8(2) have been satisfied is one of the most significant differences between the Constitution and the
interim Constitution. Section 7 regulated the application of the Bill of Rights in the interim Constitution,
stating simply that ‘[the Bill of Rights] shall bind all legislative and executive organs of state at all levels of
government’.
In Du Plessis the Constitutional Court held that the fact that section 7 did not refer to ‘all law’ and ‘the
judiciary’ meant that the Bill of Rights in the interim Constitution did not apply directly to horizontal disputes.
It only applied directly to vertical disputes.88
In light of this judgment and in an attempt to ensure that the Bill of Rights in the Constitution would
apply directly to horizontal disputes, the Constitutional Assembly made two important changes:
• First, it added the words ‘all law’ and ‘the judiciary’ to the application clause. Section 8(1) thus provides
that ‘[t]he Bill of Rights applies to all law and binds the legislature, the executive, the judiciary and all
organs of state’.
• Second, it added an entirely new clause imposing an obligation to apply the Bill of Rights directly to
horizontal disputes, at least in some cases. Section 8(2) thus provides that ‘[a] provision in the Bill of
Rights 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’.

Unlike section 8(1) of the Constitution, which is not subject to any qualifications, section 8(2) is subject to an important
qualification, namely that a fundamental right only applies directly to a horizontal relation ‘if, and to the extent that, it is
applicable, taking into account the nature of the right and the nature of the duty imposed by the right’.
Since the Bill of Rights does not apply directly to every horizontal dispute, but only to those in which ‘it is applicable, taking
into account the nature of the right and the nature of the duty imposed by the right’, it is important to know what these words
mean. Unfortunately, it is not easy to say exactly what they mean. This is partly because they are quite vague and partly because
the Constitutional Court has only considered section 8(2) in two cases, namely Khumalo and Governing Body of the Juma Musjid
Primary School & Others v Essay NO and Others.89
The Constitutional Court’s judgment in Juma Musjid does, however, provide us with some useful guidelines on the manner
in which section 8(2) should be interpreted and applied. In this case, the Court had to determine whether the right to a basic
education guaranteed in section 29(1) of the Constitution applied directly to the common law principles governing evictions,
despite the fact that none of the parties was the state or an organ of state.
The Constitutional Court found that it did. In arriving at this decision, the Constitutional Court began by stating that when it
comes to determining whether a right in the Bill of Rights applies directly to a horizontal dispute governed by the common law, a
court must take into account the purpose of section 8(2). This purpose ‘is not to obstruct private autonomy or to impose on a
private party the duties of the state in protecting the Bill of Rights. It is rather to require private parties not to interfere with or
diminish the enjoyment of a right’.90
Apart from the purpose of section 8(2) of the Constitution, the Constitutional Court stated further that when it comes to
determining whether a right in the Bill of Rights applies directly to a horizontal dispute governed by the common law, a court
must also take into account the factors highlighted in Khumalo, namely ‘the intensity of the constitutional right in question,
coupled with the potential invasion of that right which could be occasioned by persons other than the state or organs of state’. 91
Given these principles, the Constitutional Court went on to state, it may be said that the right to a basic education does apply
directly to a horizontal dispute governed by the common law, but only in the sense that it imposes a negative obligation on private

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 parties not to use their common law powers to interfere with or diminish the enjoyment of that right. It does not impose a positive
obligation on private parties to take steps to provide basic education to learners.92
In light of this judgment, the following is in summary the current state of affairs:
• First, the courts may not interpret section 8(2) of the Constitution in a manner that imposes positive socio-economic
obligations directly on natural or juristic persons.
• Second, the courts may interpret section 8(2) of the Constitution in a manner that does impose at least some negative
socio-economic obligations directly on natural or juristic persons.
• Third, to determine which socio-economic negative obligations section 8(2) of the Constitution imposes directly on natural or
juristic persons, the courts must take into account the ‘intensity of the constitutional right in question’ and the extent to which
the right could potentially be invaded by persons other than the state or organs of the state. 93 Unfortunately, it is not entirely
clear what is meant by the ‘intensity of the constitutional right in question’. 94

9.3.2.4 The indirect application of the Bill of Rights

9.3.2.4.1 Introduction
In some cases the Bill of Rights will not apply directly to law and a court will not be asked to measure the law against the specific
right and then to declare invalid the provision of the law. Instead, the Bill of Rights will indirectly influence the way in which the
court interprets the law, but they will not declare the law unconstitutional. While sections 8(1) and 8(2) of the Constitution govern
the direct vertical and horizontal application of the Bill of Rights, section 39(2) of the Constitution governs the indirect vertical
and horizontal application of the Bill of Rights. Section 39(2) provides that ‘[w]hen interpreting any legislation, and when
developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the
Bill of Rights’.
When the Bill of Rights applies indirectly, the relationship between the Bill of Rights and the ordinary law is not governed by
the principles and rules set out in the Bill of Rights. Instead, it is governed by the principles and rules set out in the ordinary law
(legislation, common law and customary law). The manner in which the courts interpret legislation or develop the common law
and customary law, however, must promote the values in the Bill of Rights.
Unlike the direct application of the Bill of Rights, therefore, the indirect application of the Bill of Rights is not based on an
enquiry as to whether the law is in direct conflict with an identifiable right. Instead, the court has to invoke the values that
underlie the Bill of Rights and ask whether it should interpret or develop the law to bring it in line with these values.

COUNTER POINT

Has the principle of avoidance or subsidiarity followed by the Constitutional Court

undermined the rule of law?
Section 39(2) of the Constitution does not specify when the courts should apply the Bill of Rights indirectly
in terms of section 39(2) rather than directly in terms of section 8(1) and (2). However, the Constitutional
Court has stated on a number of occasions that where it is possible to decide a case without applying the
Bill of Rights directly, then this is the approach the courts should adopt.95 This approach is referred to as
the principle of avoidance or the principle of subsidiarity.
In practice, this approach means that when a court is confronted with a statutory provision, it should
first attempt to interpret the provision in accordance with the values that underlie the Bill of Rights before it
tests the validity of the provision against a specific provision of the Bill of Rights. Similarly, when a court is
confronted with a common or customary law rule, it should first attempt to develop the rule in accordance
with the values underlying the Bill of Rights before it tests the validity of the rule against a specific provision
of the Bill of Rights.
Woolman has criticised the fact that the Constitutional Court favours the indirect application of the Bill
of Rights over the direct application. He argues that the problem with this approach is that:
• it has freed the Constitutional Court almost entirely from the text and has thus granted it the licence to
decide each case as it likes
• it has relieved the Constitutional Court of the obligation to give content to the specific rights guaranteed
in the Bill of Rights and to engage in the nuanced process of justification required by the limitation
clause
• it has undermined the rule of law by making it difficult for lower court judges, lawyers, government
officials and citizens to discern, with some degree of certainty, how the basic law is going to be applied.

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 In other words, the indirect application of the Bill of Rights has grown to assume such a central space in the
Constitutional Court’s approach to Bill of Rights matters that it seems to have reduced the relevance and
space for the direct application of the Bill of Rights to a bare minimum.96

9.3.2.4.2 The indirect application of the Bill of Rights to legislation

Section 39(2) of the Constitution governs the indirect application of the Bill of Rights to legislation. This section provides that
‘when interpreting any legislation … every court, tribunal or forum must promote the spirit, purport and objects of the Bill of
Rights’. To achieve this objective, the courts have held that section 39(2) of the Constitution imposes an obligation on judicial
officers to examine the objects and purport of an Act and to read the provisions of legislation, so far as possible, ‘in conformity’
with the Bill of Rights.97
The principle of reading in conformity with the Bill of Rights means that the courts must prefer interpretations that fall
within the boundaries of the Bill of Rights over those that do not, provided that such an interpretation can be reasonably ascribed
to the section.98 The process of interpreting legislation in conformity with the Bill of Rights, therefore, is limited to what the
texts of the provisions in question are reasonably capable of meaning. 99 The interpretation ‘must not be fanciful or far-fetched
but one that reasonably arises from the challenged text without unwarranted strain, distortion or violence to the language’. 100
The application of these principles and rules, however, is subject to certain limits. On the one hand, it is the duty of the
judicial officer to interpret legislation in conformity with the Constitution so far as this is reasonably possible. On the other hand,
the legislature is under a duty to pass legislation that is reasonably clear and precise, enabling citizens and officials to understand
what is expected of them.101
A balance will have to be struck, therefore, to resolve this tension. There will be occasions when a judicial officer will find
that the legislation, although open to a meaning which would be unconstitutional, is reasonably capable of being read ‘in
conformity with the Constitution’.102 Such an interpretation should not, however, be unduly strained.103

COUNTER POINT

Benefits and drawbacks of an expansive approach to the principle of reading in

conformity with the Bill of Rights
In some cases the Constitutional Court has adopted an expansive approach to the principle of reading in
conformity with the Bill of Rights and has strayed quite far from the actual words used in a statutory
provision in order to give it a constitutional meaning.
In Bertie Van Zyl (Pty) Ltd and Another v Minister for Safety and Security and Others,104 for example,
the applicant applied for an order declaring section 20(1)(a) of the Private Security Industry Regulation Act
105 to be unconstitutional and invalid on the grounds that it was overbroad or vague and therefore
irrational. Section 20(1)(a) of the Act was overbroad, the applicant argued, because if read together with the
definition of a ‘security service’ in section 1 of the Act, it applied not only to people who provided security
services in the true sense, but to also to countless other people, including, for example, childminders,
doctors and teachers, all of whom protect and safeguard people in the course of their work.
Section 20(1)(a) of this Act provided in part that ‘[n]o person, except a security service contemplated in
section 199 of the Constitution (Act No. 108 of 1996), may in any manner render a security service for
remuneration, reward, a fee or benefit, unless such person is registered as a security service provider in
terms of this Act’ and section 1(a) provided in part that ‘security service means … protecting or
safeguarding a person or property in any manner’.
A majority of the Constitutional Court rejected this argument. In arriving at this decision, however, the
Court held that the words ‘security service’ must be read down to mean ‘the protection or safeguarding of
persons or property from unlawful physical harm, including injury, physical damage, theft, or kidnapping
caused by another person. This must be so because the security of persons and property is central to what
the Act aims to protect … [T]he Act is not intended to regulate the response to hazards from nature or harm
from animals’.106
To uphold the constitutional validity of section 1(a) of the Act, therefore, the majority of the
Constitutional Court essentially rewrote it by cutting the words ‘in any manner’ from the section and adding

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 the words ‘from unlawful physical harm, including injury, physical damage, theft, or kidnapping caused by
another person’ to it.
As Bishop and Brickhill have pointed out, this expansive approach has both advantages and
disadvantages. On the one hand, ‘it allows courts to avoid declaring legislation unconstitutional and thus, in
some sense at least, respect the separation of powers. It also avoids the recurrent difficulties and delays
that often follow declarations of invalidity until new legislation is passed’.107 On the other hand,
‘government officials who have to apply the section will not be able to tell from reading it what its proper
meaning is. They will have to know about (and read) the court decision in order to do their jobs’.108
In addition, they point out further:

because High Court interpretations that avoid a finding of unconstitutionality need not be
confirmed by the Constitutional Court, they will occasion much greater uncertainty than
declarations of invalidity. It is also possible that different High Courts may reach different
interpretations, none of which could be ascertained merely by reading the section.109

Finally, they conclude:

the supposed separation of powers benefits that accrued through interpretation are largely
illusory, as the degree of interference in the legislature’s sphere of operation occasioned by
interpretations that exceed the ordinary meaning of the words is the same as an order of
invalidity accompanied by orders of reading in or severance. The Constitutional Court has
developed a detailed jurisprudence about how to accommodate separation of powers concerns
when making those orders, a jurisprudence that seems to be largely ignored in the current
approach to interpretation. This massive power in effect permits courts – and not only the
Constitutional Court – to legislate about what the legislation is meant to achieve.110

Apart from the points set out above, the courts have also held that it is important to distinguish between interpreting legislation in
a manner that promotes the spirit, purport and objects of the Bill of Rights, sometimes called reading down, and the process of
reading words into or severing them from a statutory provision under section 172(1)( b) of the Constitution following on a
declaration of constitutional invalidity under section 172(1)(a) of the Constitution.111
The first process is an interpretative one and is limited to what the text is reasonably capable of meaning. The second process
is a remedial one and can only take place after the statutory provision in question has been found to be constitutionally invalid.
112 It follows that where a legislative provision is reasonably capable of a meaning that places it within constitutional bounds, it

should be preserved. Only if this is not possible should courts resort to the remedy of reading in or notional severance. 113

9.3.2.4.3 The indirect application of the Bill of Rights to the common law and customary law
Section 39(2) of the Constitution also governs the indirect application of the Bill of Rights to the common law and customary
law. This section provides that ‘… when developing the common law or customary law, every court, tribunal or forum must
promote the spirit, purport and objects of the Bill of Rights’.
The Constitutional Court has considered the circumstances in which the courts must develop the common law on a number of
occasions.114 In these cases, the Court has held that while the courts are under a general obligation to develop the common law,
they do not have to carry out this exercise in each and every case that comes before them.
In Carmichele v Minister of Safety and Security, for example, the Constitutional Court held that:

the obligation of courts to develop the common law, in the context of section 39(2) objectives, is not
purely discretionary. On the contrary, it is implicit in section 39(2) read with section 173 that where
the common law as it stands is deficient in promoting the section 39(2) objectives, the courts are under
a general obligation to develop it appropriately.115

This general obligation, the Constitutional Court held further, does not mean:

that a court must, in each and every case where the common law is involved, embark on an
independent exercise as to whether the common law is in need of development and, if so, how it is to be
developed under section 39(2). At the same time there might be circumstances where a court is obliged

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 to raise the matter on its own and require full argument from the parties.116

The obligation imposed on the courts to develop the common law, therefore, is an extensive one. It requires the courts to be alert
to the normative framework of the Constitution not only when some startling new development of the common law is in issue,
but in all cases where the incremental development of the rule is in issue. 117

PAUSE FOR REFLECTION

Differing interpretations of section 39(2)

There has been considerable academic debate about the nature of the horizontal application of the Bill of
Rights and whether the courts are obliged to develop the common law in each case or not.118 Fagan
argues that contrary to decisions of the Constitutional Court in Carmichele, the Constitution does not regard
the spirit, purport and objects of the Bill of Rights as providing an independent reason for developing the
common law. According to Fagan, the phrase, ‘spirit, purport and objects of the Bill of Rights’, as contained
in section 39(2) of the Constitution, constitutes a set of reasons for choosing between different ways of
developing the common law. However, this choice can only be made after adopting a prior decision based
on an independent reason for developing the common law. There is a distinction to be drawn between a
justification provided by a constitutionally entrenched right and one provided by the objects of the Bill of
Rights. The wording of section 39(2) does not imply an obligation to develop the common law. If there is an
obligation to develop the common law, it must be found in independent reasons; that is, reasons other than
those sourced in the objects of the Bill of Rights.
Davis took issue with this line of reasoning, arguing that the interpretation was too formalistic, that it
‘ignores the intricacies of adjudication and its relationship to justice’ and continues:

On this line of argument, the demands of a post-constitutional jurisprudence require a

re-examination of legal thinking, a deep reflection on the consequences of the past in order that
we do not reproduce its shibboleths, but rather its reflective power, in order in turn to meet the
conception of justice which is set out in the Constitution, in the form of a normative framework
for a future South Africa. In other words, the Constitution, read as a whole, provides a concept of
justice which, if implemented, would result in the attainment of a journey from apartheid to the
democratic society envisaged in the Constitution. Admittedly, this is a difficult task and not one
that is met easily by way of a grand narrative which can be grasped immediately.119

In essence, Davis argues that in order for the Constitution to play its role in transforming the private law,
section 39(2) requires the courts to develop the common law in each case to bring it in line with the spirit,
purport and objects of the Bill of Rights. An argument that limits the ability of the courts to do so is therefore
essentially in opposition to the transformation of the private law in accordance with the precepts of justice.

Apart from the circumstances in which the courts are obliged to develop the common law, the Constitutional Court has also dealt
with the manner in which the courts must carry out this exercise. In Thebus and Another v S, for example, the Constitutional
Court explained that the Constitution embodies an ‘objective normative value system’. 120 It is within the matrix of this objective
normative value system that the common law must be developed. This means, the Court explained further, that ‘under
section 39(2) of the Constitution, concepts which are reflective of, or premised upon, a given value system might well have to be
replaced, or supplemented and enriched by the appropriate norms of the objective value system embodied in the Constitution’. 121
After making these points, the Constitutional Court went on to explain that the need to develop the common law under
section 39(2) of the Constitution could arise in two circumstances:

The first would be when a rule of the common law is inconsistent with a constitutional provision.
Repugnancy of this kind would compel an adaptation of the common law to resolve the inconsistency.
The second possibility arises even when a rule of the common law is not inconsistent with a specific
constitutional provision but may fall short of its spirit, purport and objects. Then, the common law
must be adapted so that it grows in harmony with the ‘objective normative value system’ found in the
Constitution.122

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 In those cases in which a common law rule is alleged to be inconsistent with a constitutional provision, a court is obliged to carry
out a two-stage enquiry. First, it must determine whether or not the common law rule does in fact limit an entrenched right. If it
does, the court must move onto the second stage and determine whether the limitation is reasonable and justifiable. If the
limitation is not reasonable and justifiable, the court itself is obliged to adapt or develop the common law rule in order to
harmonise it with the constitutional norm.123
In those cases in which a common law rule falls short of the spirit, purport and objects of the Bill of Rights, a court is also
obliged to undertake a two-stage enquiry. First, it must ask itself whether, given the objectives of section 39(2) of the
Constitution, the common law should be developed beyond existing precedent. If the answer to this question is a negative one,
then this should be the end of the enquiry. If not, the next enquiry should be how the development should occur and which court
should embark on this exercise.124
In K v Minister of Safety and Security,125 the Constitutional Court also set out some of the ways in which the common law
can be developed. In this respect, the Court stated that the common law can be developed by, for example, introducing a new rule
or significantly changing an existing one. It can also be developed by extending the ambit of a rule to include a new set of facts or
limiting the ambit to exclude those facts.126

PAUSE FOR REFLECTION

The development of customary law

The indirect application of the Bill of Rights, which leads to the development of the law, is often thought of
only in terms of the development of the common law. However, as section 39 clearly states, it is not only
the common law that must be developed but also the customary law. In Mayelane v Ngwenyama and
Another, the Constitutional Court summarised its approach to the development of customary law as follows:

This Court has, in a number of decisions, explained what this resurrection of customary law to
its rightful place as one of the primary sources of law under the Constitution means. This
includes that:
a) customary law must be understood in its own terms, and not through the lens of the
common law;
b) so understood, customary law is nevertheless subject to the Constitution and has to be
interpreted in the light of its values;
c) customary law is a system of law that is practised in the community, has its own values
and norms, is practised from generation to generation and evolves and develops to meet
the changing needs of the community;
d) customary law is not a fixed body of formally classified and easily ascertainable rules. By
its very nature it evolves as the people who live by its norms change their patterns of life;
e) customary law will continue to evolve within the context of its values and norms
consistently with the Constitution;
f) the inherent flexibility of customary law provides room for consensus-seeking and the
prevention and resolution, in family and clan meetings, of disputes and disagreements;
and
g) these aspects provide a setting which contributes to the unity of family structures and the
fostering of co-operation, a sense of responsibility and belonging in its members, as well
as the nurturing of healthy communitarian traditions like ubuntu.127

SUMMARY

This chapter deals with some of the technical questions relating to Bill of Rights adjudication. The application of the Bill of
Rights gives rise to a number of difficult questions. The two most important, however, are who is entitled to claim the right in
question and who is bound by the right in question?
The rights guaranteed in the Bill of Rights may be claimed by both natural and, in certain circumstances, juristic persons. In
so far as natural persons are concerned, the majority of rights state that they can be claimed by ‘everyone’. The use of the word
‘everyone’ refers to South African citizens as well as any other person who is physically present in the country, irrespective of

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 whether they are here legally or illegally.
Although the majority of rights state that they can be claimed by ‘everyone’, certain rights state that they may be claimed
only by a narrower category of natural persons, for example citizens, children or detained persons. These rights may be claimed
only by those natural persons who fall into the definition of the relevant category.
In so far as juristic persons are concerned, section 8(4) of the Constitution provides that ‘[a] juristic person is entitled to the
rights in the Bill of Rights to the extent required by the nature of the rights and the nature of the juristic person’. To determine
whether a juristic person can claim a particular right, therefore, two factors must be taken into account: whether the juristic
person is capable of exercising the right in question and whether the juristic person is entitled to exercise the right in question.
Once a court has determined who can claim rights in terms of the Bill of Rights, it has to ask a second question, namely,
against whom can these rights be claimed? In other words, the court has to ask who is bound to respect the rights claimed by
either a natural or juristic person. Although ‘everyone’ is entitled to claim the benefit of the rights (or at least most of the rights)
in the Bill of Rights, not everyone is bound by every right contained in the Bill of Rights. This is because while the Bill of Rights
is always binding on the state, it is not always binding on private persons.
When it comes to the question of who is bound by the Bill of Rights, it is important to distinguish between the direct
application of the Bill of Rights and the indirect application of the Bill of Rights as well as between the vertical and horizontal
application of the Bill of Rights. This is because in South Africa the Bill of Rights applies not only directly and indirectly, but
also vertically and sometimes horizontally. Section 8(1) of the Constitution governs the direct vertical application of the Bill of
Rights while section 8(2) governs the direct horizontal application. Section 39(2) of the Constitution governs the indirect vertical
and horizontal application of the Bill of Rights.

1 Currie, I and De Waal, J (2013) The Bill of Rights Handbook 6th ed 24.
2 Currie and De Waal (2013) 24.
3 Currie and De Waal (2013) 26.
4 Currie and De Waal (2013) 26–7.
5 Freedman, DW ‘Constitutional law: Bill of Rights’ in Joubert, WA (ed) (2012) Law of South Africa 2nd ed Vol 5 Part 4 para 2.
6 United Nations (1996) International Covenant on Civil and Political Rights available at http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx.
7 United Nations (1996) International Covenant on Economic, Social and Cultural Rights available at http://www.ohchr.org/en/professionalinterest/pages
/CESCR.aspx.
8 Dlamini, CRM (1995) Human Rights in Africa: Which way South Africa? 5–6.
9 Dlamini (1995) 5–6.
10 Du Plessis, LM (1999) An Introduction to Law 3rd ed 168–9.
11 Du Plessis (1999) 168–9.
12 Du Plessis (1999) 168–9.
13 See Certification of the Constitution of the Republic of South Africa, 1996 (CCT 23/96) [1996] ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253
(CC) (6 September 1996) paras 77–8 where the Court held that socio-economic rights are no less justiciable than civil and political right, nor would a
court adjudicating on them necessarily lead to a breach of the separation of powers.
14 See Currie and De Waal (2013) 24 and 29.
15 See Currie, I and De Waal, J (2001) The New Constitutional and Administrative Law, Vol 1 Constitutional Law 321.
16 Currie and De Waal (2001) 321.
17 Currie and De Waal (2001) 321.
18 Ss 19, 20 and 22 of the Constitution.
19 S 28 of the Constitution.
20 S 35 of the Constitution.
21 In law, a natural person is a real human being as opposed to a legal person which may be a private business entity or public (government) organisation.
22 A juristic person is an artificial entity through which the law allows a group of natural persons to act as if it were a single composite individual for certain
purposes. This legal fiction does not mean these entities are human beings, but rather that the law recognises them and allows them to act as natural
persons for some purposes, most commonly in lawsuits, property ownership and contracts. For example, a company or a club will act as a juristic person.
23 Khosa and Others v Minister of Social Development and Others, Mahlaule and Another v Minister of Social Development (CCT 13/03, CCT 12/03)
[2004] ZACC 11; 2004 (6) SA 505 (CC); 2004 (6) BCLR 569 (CC) (4 March 2004) para 47.
24 Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v Minister of Home Affairs and Others; Thomas and Another v
Minister of Home Affairs and Others (CCT35/99) [2000] ZACC 8; 2000 (3) SA 936; 2000 (8) BCLR 837 (7 June 2000) para 37.
25 Lawyers for Human Rights and Other v Minister of Home Affairs and Other (CCT 18/03) [2004] ZACC 12; 2004 (4) SA 125 (CC); 2004 (7) BCLR 775
(CC) (9 March 2004) para 27.
26 Christian Lawyers Association of SA v Minister of Health 1998 (11) BCLR 1434 (T) 1441.
27 Christian Lawyers Association 1441.
28 (CCT27/98) [1999] ZACC 7; 1999 (4) SA 469; 1999 (6) BCLR 615 (26 May 1999).
29 South African National Defence Union para 23.
30 South African National Defence Union para 26.
31 Govindjee, A and Vrancken, P (eds) (2009) Introduction to Human Rights Law 41.
32 Govindjee and Vrancken (2009) 41.
33 Govindjee and Vrancken (2009) 41.
34 Govindjee and Vrancken (2009) 41.
35 Govindjee and Vrancken (2009) 41.
36 See Rucker, P (2011, 11 August) Mitt Romney says ‘corporations are people’ at Iowa State Fair Washington Post available at http://articles
.washingtonpost.com/2011-08-11/politics/35270239_1_romney-supporters-mitt-romney-private-sector-experience.
37 (CCT 23/96) [1996] ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC) (6 September 1996).
38 First Certification paras 57–8.
39 See, for example, Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others (CCT5/95) [1995] ZACC 13; 1996 (1) SA 984 (CC);
1996 (1) BCLR 1 (6 December 1995); Minister of Home Affairs v Eisenberg & Associates In re: Eisenberg & Associates v Minister of Home Affairs and

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 Others (CCT15/03) [2003] ZACC 10; 2003 (8) BCLR 838; 2003 (5) SA 281 (CC) (27 June 2003); Kruger v President of the Republic of South Africa and
Others (CCT 57/07) [2008] ZACC 17; 2009 (1) SA 417 (CC); 2009 (3) BCLR 268 (CC) (2 October 2008); Viking Pony Africa Pumps (Pty) Ltd t/a
Tricom Africa v Hidro-Tech Systems (Pty) Ltd and Another (CCT 34/10) [2010] ZACC 21; 2011 (1) SA 327 (CC); 2011 (2) BCLR 207 (CC)
(23 November 2010); Tulip Diamonds FZE v Minister for Justice and Constitutional Development and Others (CCT 93/12) [2013] ZACC 19; 2013 (10)
BCLR 1180 (CC); 2013 (2) SACR 443 (CC) (13 June 2013).
40 Kruger para 21.
41 Kruger para 90.
42 See Currie and De Waal (2013) 77.
43 Currie and De Waal (2013) 77.
44 (CCT 25/12) [2012] ZACC 28; 2013 (3) BCLR 251 (CC) (29 November 2012) para 23.
45 Giant Concerts para 32.
46 Giant Concerts para 33.
47 Giant Concerts para 34.
48 Giant Concerts para 35.
49 (CCT5/95) [1995] ZACC 13; 1996 (1) SA 984 (CC); 1996 (1) BCLR 1 (6 December 1995).
50 (CCT15/03) [2003] ZACC 10; 2003 (8) BCLR 838; 2003 (5) SA 281 (CC) (27 June 2003).
51 (CCT 57/07) [2008] ZACC 17; 2009 (1) SA 417 (CC); 2009 (3) BCLR 268 (CC) (2 October 2008).
52 Giant Concerts para 41.
53 Ferreira; Vryenhoek para 234.
54 Ferreira; Vryenhoek para 234.
55 (CCT 18/03) [2004] ZACC 12; 2004 (4) SA 125 (CC); 2004 (7) BCLR 775 (CC) (9 March 2004).
56 Lawyers for Human Rights para 17.
57 Lawyers for Human Rights para 18. In his minority judgment in Lawyers for Human Rights, Madala J held that another important factor to be taken into
account when determining whether a party has standing to act in the public interest is ‘the egregiousness of the conduct complained of’ (para 73).
58 Currie and De Waal (2001) 321.
59 Currie and De Waal (2001) 321.
60 Currie and De Waal (2013) 41.
61 Currie and De Waal (2013) 41.
62 Hutchinson, AC (1990) Mice under a chair: Democracy, courts and the administrative state University of Toronto Law Journal 40(3):374–404 at 380.
63 S 8(2).
64 Khumalo and Others v Holomisa (CCT53/01) [2002] ZACC 12; 2002 (5) SA 401; 2002 (8) BCLR 771 (14 June 2002) para 31. S 8(2) of the Constitution
stipulates that ‘[a] provision in the Bill of Rights 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 the duty imposed by the right’. S 8(3) goes on to stipulate that ‘[w]hen applying a provision of the Bill of Rights to a natural
or juristic person in terms of subsection (2), a court: (a) in order to give effect to a right in the Bill, must apply, or if necessary develop, the common law
to the extent that legislation does not give effect to that right; and (b) may develop rules of the common law to limit the right, provided the limitation is in
accordance with section 36(1)’.
65 Khumalo para 31.
66 (CCT53/01) [2002] ZACC 12; 2002 (5) SA 401; 2002 (8) BCLR 771 (14 June 2002).
67 Khumalo paras 30–4.
68 Khumalo para 31.
69 Khumalo para 31.
70 Khumalo para 32.
71 Khumalo para 33.
72 See Woolman, S ‘Application’ in Woolman, S and Bishop, M (eds) (2013) Constitutional Law of South Africa 2nd ed rev service 5 31.6.
73 Woolman (2013) 31.7.
74 (CCT8/95) [1996] ZACC 10; 1996 (3) SA 850; 1996 (5) BCLR 658 (15 May 1996).
75 Woolman (2013) 31.8.
76 Woolman (2013) 31.8.
77 Freedman (2012) para 7.
78 (410/09) [2010] ZASCA 94; 2010 (5) SA 457 (SCA); [2010] 4 All SA 561 (SCA) (19 July 2010).
79 Act 3 of 2000.
80 Calibre Clinical Consultants para 20.
81 S 239(b)(i) of the Constitution.
82 S 239(b)(ii) of the Constitution; Calibre Clinical Consultants para 19.
83 Calibre Clinical Consultants para 24.
84 Calibre Clinical Consultants para 38.
85 Calibre Clinical Consultants para 40.
86 Act 66 of 1995.
87 Calibre Clinical Consultants para 41.
88 Du Plessis para 129. Although the Bill of Rights in the interim Constitution did not apply directly to horizontal disputes, it did apply indirectly. S 35(3) of
the interim Constitution thus provided that ‘[i]n the interpretation of any law and the application and development of the common law and customary law,
a court shall have due regard to the spirit, purport and objects of [the Bill of Rights]’. The approach adopted by the Constitutional Court in Du Plessis
resulted in much academic debate and criticism. See, for example, Woolman, S and Davis, D (1996) The last laugh: Du Plessis v De Klerk, classical
liberalism, Creole liberalism and the application of fundamental rights under the interim and final Constitutions South African Journal on Human Rights
12(2):361–404 at 361 and Sprigman, C and Osborne, M (1999) Du Plessis is not dead: South Africa’s 1996 Constitution and the application of the Bill of
Rights to private disputes South African Journal on Human Rights 15(1):25–51 at 25.
89 (CCT 29/10) [2011] ZACC 13; 2011 (8) BCLR 761 (CC) (11 April 2011).
90 Juma Musjid para 58.
91 Juma Musjid para 58. See also Khumalo para 33.
92 Juma Musjid para 60.
93 Juma Musjid para 58.
94 Freedman (2012) para 9.
95 S v Mhlungu and Others (CCT25/94) [1995] ZACC 4; 1995 (3) SA 867; 1995 (7) BCLR 793 (CC) (8 June 1995) para 59; Zantsi v Council of State,
Ciskei and Others (CCT24/94) [1995] ZACC 9; 1995 (10) BCLR 1424; 1995 (4) SA 615 (22 September 1995) paras 2–5; Ferreira; Vryenhoek para 199;
S v Bequinot (CCT24/95) [1996] ZACC 21; 1996 (12) BCLR 1588; 1997 (2) SA 887 (18 November 1996) paras 12–13; National Coalition for Gay and

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 Lesbian Equality and Another v Minister of Justice and Others (CCT11/98) [1998] ZACC 15; 1999 (1) SA 6; 1998 (12) BCLR 1517 (9 October 1998)
para 21.
96 See Woolman, S (2007) The amazing vanishing Bill of Rights South African Law Journal 124(4):762–94 at 762.
97 See Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others In re: Hyundai Motor
Distributors (Pty) Ltd and Others v Smit NO and Others (CCT1/00) [2000] ZACC 12; 2000 (10) BCLR 1079; 2001 (1) SA 545 (CC) (25 August 2000)
para 22.
98 Hyundai para 23.
99 See South African Police Service v Police and Prisons Civil Rights Union and Another (CCT 89/10) [2011] ZACC 21; [2011] 9 BLLR 831 (CC); 2011
(9) BCLR 992 (CC); 2011 (6) SA 1 (CC); (2011) 32 ILJ 1603 (CC) (9 June 2011) para 29.
100 Daniels v Campbell and Others (CCT 40/ 03) [2004] ZACC 14; 2004 (5) SA 331 (CC); 2004 (7) BCLR 735 (CC) (11 March 2004) para 83.
101 Daniels para 24.
102 Hyundai para 22.
103 Daniels para 24.
104 (CCT 77/08) [2009] ZACC 11; 2010 (2) SA 181 (CC); 2009 (10) BCLR 978 (CC) (7 May 2009).
105 Act 56 of 2001.
106 Bertie Van Zyl para 40.
107 Bishop, M and Brickhill, J (2010) ‘Constitutional Law’ Juta’s Annual Survey of South African Law 224.
108 Bishop and Brickhill (2010) para 224.
109 Bishop and Brickhill (2010) para 224.
110 Bishop and Brickhill (2010) para 225.
111 Bishop and Brickhill (2010) para 225.
112 Bishop and Brickhill (2010) para 225.
113 Bishop and Brickhill (2010) para 225.
114 See, for example, Du Plessis; Amod v Multilateral Motor Vehicle Accidents Fund (CCT4/98) [1998] ZACC 11; 1998 (4) SA 753; 1998 (10) BCLR 1207
(27 August 1998).
115 (CCT 48/00) [2001] ZACC 22; 2001 (4) SA 938 (CC); 2001 (10) BCLR 995 (CC) (16 August 2001) para 39.
116 Carmichele para 39.
117 See K v Minister of Safety and Security (CCT52/04) [2005] ZACC 8; 2005 (6) SA 419 (CC); 2005 (9) BCLR 835 (CC); [2005] 8 BLLR 749 (CC)
(13 June 2005) para 17.
118 For an interesting and lively debate on this topic, see Fagan, A (2010) The secondary role of the spirit, purport and objects of the Bill of Rights in the
common law’s development South African Law Journal 127(3):611–27; Davis, DM (2012) How many positivist legal philosophers can be made to dance
on the head of a pin? A reply to Professor Fagan South African Law Journal 129(1):59–72; Fagan, A (2012) A straw man, three red herrings, and a closet
rule-worshipper: A rejoinder to Davis JP South African Law Journal 129(3):788–98; Davis, DM (2013) The importance of reading: A rebuttal to the
jurisprudence of Anton Fagan South African Law Journal 130(1):52–9.
119 Davis (2012) 67–8.
120 (CCT36/02) [2003] ZACC 12; 2003 (6) SA 505 (CC); 2003 (10) BCLR 1100 (CC) (28 August 2003) para 27.
121 Thebus para 27.
122 Thebus para 28.
123 Thebus para 32.
124 Thebus para 26.
125 (CCT52/04) [2005] ZACC 8; 2005 (6) SA 419 (CC); 2005 (9) BCLR 835 (CC); [2005] 8 BLLR 749 (CC) (13 June 2005).
126 K para 16.
127 (CCT 57/12) [2013] ZACC 14; 2013 (4) SA 415 (CC); 2013 (8) BCLR 918 (CC) (30 May 2013) para 24. See also Gumede (born Shange) v President of
the Republic of South Africa and Others (CCT 50/08) [2008] ZACC 23; 2009 (3) BCLR 243 (CC); 2009 (3) SA 152 (CC) (8 December 2008) para 22;
Alexkor Ltd and Another v Richtersveld Community and Others (CCT19/03) [2003] ZACC 18; 2004 (5) SA 460 (CC); 2003 (12) BCLR 1301 (CC)
(14 October 2003); Bhe and Others v Khayelitsha Magistrate and Others (CCT 49/03) [2004] ZACC 17; 2005 (1) SA 580 (CC); 2005 (1) BCLR 1 (CC)
(15 October 2004) para 41; First Certification para 197.

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 The limitation of rights
All rights reserved. May not be reproduced in any form without permission from the publisher, except fair uses permitted under U.S. or applicable copyright law.

10.1 Introduction
10.2 The evolution of the limitation clause
10.3 The two-stage approach to the limitation of rights
10.4 The threshold enquiry: does the measure limit a protected right?
10.4.1 The content and scope of the relevant protected right
10.4.2 Is the right infringed by the measure?
10.5 The justification stage: is the limiting measure in terms of a law of general application and
reasonable and justifiable?
10.5.1 Law of general application
10.5.2 Reasonable and justifiable in an open and democratic society based on human dignity,
equality and freedom
10.5.2.1 Reconsidering the role of proportionality in the justification enquiry
10.5.2.2 Section 36 in practice
10.5.2.2.1 The purpose of the limiting measure
10.5.2.2.2 The rational connection requirement
10.5.2.2.3 Less restrictive, alternative means of achieving the end
10.5.2.2.4 Balancing and proportionality proper
Summary

10.1 Introduction
Rights are not absolute and can, in certain circumstances, be limited. Section 36 of the Bill of Rights contains a limitation clause
that allows for the constitutionally valid limitation of rights in certain instances. Once a court has established that a law infringes
on one or more of the rights guaranteed in the Bill of Rights, the court must ask whether this infringement, also called a
limitation, is justifiable. This means that somebody who claims that a legal provision has limited his or her rights will not
Copyright 2014. Oxford University Press Southern Africa.

automatically win the case simply because his or her rights have been limited. The person will only win if the court finds that the
limitation is not justifiable in terms of the limitation clause set out in section 36 of the Bill of Rights.
Determining whether a limitation of rights is justified or not is difficult and rightly so. It is difficult on a number of levels.
First, South Africa is a country emerging from a historical period during which individuals’ fundamental rights and freedoms
were systematically and routinely violated, first under colonialism and then apartheid, often under the colour of law. South Africa
has now committed itself to a system of constitutional democracy. 1 This new political dispensation requires all arms of
government 2 and, in certain circumstances, private actors,3 to respect and protect the basic, fundamental rights contained in our
Bill of Rights. In this constitutional order, any limitation of these basic rights will understandably and necessarily be a difficult
and, at times, painful exercise.
Second, the commitment to a rights-based constitutional order means that society’s political, social, economic and historical
controversies are often resolved using the language and the logic of rights. At times, this requires courts to address these pressing
and complex issues, some of which invoke age-old questions that go to the heart of how society and government should be
structured and should function, using contested empirical bases. This sometimes places courts in a difficult position in relation to

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AN: 948967 ; Brand, Danie, Freedman, Warren, De Vos, Pierre.; South African Constitutional Law in Context
Account: s5341985.main.ehost 262
 the other arms of government, namely the legislature and the executive, as well as the public at large. The commitment to
individual rights means that courts may also have to make decisions that go against public opinion. 4 This, in essence, is the cost
of ‘taking rights seriously’.5
Apart from the difficulties identified above, there is another sense in which the limitation of rights is a difficult exercise. It is
often difficult for people to understand the approach adopted by the Constitutional Court (and to a far lesser extent the
Constitution’s drafters) towards the limitation of rights. The inaccessibility of the limitation clause is problematic in a number of
respects. First and foremost, it makes it difficult for other branches of government to bring their conduct into line with what the
Bill of Rights expects and demands. As the Court itself noted in S v Mhlungu and Others, constitutional interpretation should take
the form of ‘a principled judicial dialogue, in the first place between members of this Court, then between our Court and other
courts, the legal profession, law schools, Parliament, and, indirectly, with the public at large’. 6 The problem with the Court’s
current approach to rights limitation is that aspects of its approach are often lost in translation. 7 Second, in its current form, the
limitation clause, as well as the Court’s jurisprudence in respect of the clause, is difficult for students to understand.
Although some level of complexity is inevitable, this chapter tries to simplify the process of limiting rights under the
Constitution. To do so, we begin by discussing the shift from the structured, sequential limitation enquiry required by section 33
of the interim Constitution to a unified, balancing limitation enquiry required by section 36 of the Constitution. 8 Next, we
consider the two stages of the limitation analysis: the threshold stage and the justification stage. At the threshold stage, we draw
attention to the different approaches taken by the Constitutional Court. The justification stage is further divided into its two
sub-components, namely the law of general application requirement and the reasonable and justifiable requirement. Crucial to
understanding the latter is a reconsideration of the notion of proportionality that has come to dominate the understanding and
misunderstanding of how section 36 works. In the final part of the chapter we discuss the limitation of rights outside
section 36(1).

10.2 The evolution of the limitation clause

It is now trite to say – as we indicated right at the outset in this chapter – that rights are not absolute. 9 Rather, they can be limited
by the rights of others as well as competing social interests. In providing for the limitation of rights, the drafters of the interim
Constitution were faced with three options. The first was merely to set out the various protected rights without any formal
limitation device. This is the approach adopted in the United States Constitution, ‘as a result of which courts in that country have
been obliged to find limits to constitutional rights through a narrow interpretation of the rights themselves’. 10 The second was to
include rights-specific limitation clauses such as those found in regional and international human rights instruments like the
European Convention for the Protection of Human Rights and Fundamental Freedoms (1950). 11 The third was to include a
general limitation clause applicable to all the rights protected under the Constitution, such as that found in Canada’s Charter of
Rights and Freedoms.12
Under both the interim and final Constitution the drafters opted for a general limitation clause. Section 33(1) of the interim
Constitution delineated a staged process for the limitation of rights. This allowed for the rights entrenched in Chapter 3 to be
limited by a law of general application, ‘provided that such limitation ( a) shall be permissible only to the extent that it is (i)
reasonable; (ii) justifiable in an open and democratic society based on freedom and equality; and ( b) shall not negate the essential
content of the right in question …’ 13 Further, it provided that the limitation of certain entrenched rights 14 must also be
necessary.15
The drafters of section 33 of the interim Constitution were clearly influenced by the limitation clause contained in the
Canadian Charter of Rights and Freedoms and, to a lesser extent, the German limitation clause which is similarly structured. 16
Given this, it was widely expected that when it came to interpreting section 33, the Constitutional Court would follow the
approach adopted by the Canadian Supreme Court in R v Oakes.17 In this case, Dickson CJC stated that there are three important
components to the proportionality test:

First, the measures adopted must be carefully designed to achieve the objective in question. They must
not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally
connected to the objective. Secondly, the means, even if rationally connected to the objective in the first
sense, should impair ‘as little as possible’ the right or freedom in question. … Thirdly, there must be a
proportionality between the effects of the measures which are responsible for limiting the Charter
right or freedom, and the objective which has been identified as of ‘sufficient importance’.18

Instead of following the structured and sequential test adopted by the Canadian Courts in Oakes, however, the Constitutional

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 Court in S v Makwanyane and Another opted to adopt a singular global approach in which it considers a list of factors together in
a kind of balancing test.19 This approached conflated the two requirements of reasonableness and necessity, omitted justifiability
and introduced the notion of proportionality ‘which calls for the balancing of different interests’.20 In his judgment, Chaskalson
P thus stated the following:

The limitation of constitutional rights for a purpose that is reasonable and necessary in a democratic
society involves the weighing up of competing values, and ultimately an assessment based on
proportionality. This is implicit in the provisions of s 33(1). The fact that different rights have different
implications for democracy and, in the case of our Constitution, for ‘an open and democratic society
based on freedom and equality’, means that there is no absolute standard which can be laid down for
determining reasonableness and necessity. Principles can be established, but the application of those
principles to particular circumstances can only be done on a case-by-case basis. This is inherent in the
requirement of proportionality, which calls for the balancing of different interests.21

CRITICAL THINKING

Is the limitation of rights an assessment based on proportionality?

We could question the finding that it is implicit in the language of section 33(1) of the interim Constitution
that the limitation of rights is ‘ultimately an assessment based on proportionality’.22 The language of
section 33(1), which spoke of justifiability, implied that the enquiry will at times involve the weighing up of
competing values (balancing) and their proportionality. This might be the ultimate leg of the staged process
should it get to that point. However, to reduce section 33 and the process of limiting of rights generally to
only being about proportionality is difficult to reconcile with the text of section 33(1). What is more, it is
confusing as it makes the whole endeavour about a metaphorical formulation of proportionality and
balancing.23 However, it is difficult to know exactly what must be balanced against what else and whether
the various interests at play in any limitation clause enquiry can indeed be balanced against each other at
all.

Regardless of the merits of the Court’s approach in Makwanyane, it clearly had an effect on the drafters of section 36(1) of the
final Constitution which states:

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 open and 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.

The most notable difference between the limitation clauses of the interim and final Constitutions is that the drafters of the final
Constitution elected to abandon the sequential, structured approach in which a series of specific questions were addressed. 24
Instead, they favoured Makwanyane’s singular, global approach in which certain factors are considered. However, the drafters did
not go so far as to adopt the language of balancing and proportionality. They chose rather the phrase ‘reasonable and justifiable’.
25 This left open the possibility that some of the structure of the interim Constitution might survive, but that window was quickly

closed by the Court. The Constitution also included the factors listed by Makwanyane as relevant to balancing 26 and added
another one: less restrictive means.27

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 PAUSE FOR REFLECTION

The absence of reasons for the the Constitutional Court’s adjudicative approach to
rights limitation
The reasons for the Constitutional Court’s deliberate move away from a structured, criteria-based approach
to the limitation of rights – such as that found in the interim Constitution and Oakes – towards a global,
unstructured test that turns almost entirely on the problematic metaphor of balancing are not easily
identified. One possible explanation is that it is a reaction (or perhaps an overreaction) to the formalistic,
positivist legal culture that was pervasive under apartheid. As Lenta notes:

It is widely recognised that the radical divorce decreed by modernity under the guise of legal
positivism, between law and ethics, legality and morality, justice as process and justice as
substance was in large measure responsible for the complicity of the legal system with the
apartheid regime. Positivism has accordingly and rightly been rejected by the judiciary and
many in the legal academy.28

However, this may be too simplistic an explanation that, in any event, is difficult to reconcile with the Court’s
decision to resort to formalism at other times in its jurisprudence.29 As Roux notes, ‘none of the
mainstream theories of adjudication adequately explains the [Constitutional Court’s] record’.30
In the absence of a theory that explains the Court’s adjudicative approach generally, let alone rights
limitation in particular, Roux submits that the Court’s decision-making process can best be understood as a
form of ‘tactical adjudication’.31 Leaning on political sciences approaches to the understanding of law and
courts, he argues that the Court is ‘a political actor pursuing a determinate strategic objective: the
establishment of constitutional democracy’.32 The pursuit of that objective requires that the Court use the
available legal materials – including section 36 – ‘to give meaningful effect to the Constitution whilst building
its institutional legitimacy, either directly or indirectly, by creating doctrinal space for itself in later judgments
to hand down context-sensitive judgments’.33 This ‘mix of principle and pragmatism’, Roux argues
elsewhere, ‘seems likely to provide the best way for a constitutional court in a new democracy to build its
legal legitimacy without sacrificing its institutional security’.34
Of the five ‘adjudicative devices’ Roux identifies as being employed by the Court to create this ‘doctrinal
space’, one has particular relevance to section 36.35 This adjudicative device is the conversion of
conceptual distinctions into ‘multi-factor balancing tests’ or ‘discretionary standards’.36 Referring to the
case of First National Bank of SA Limited t/a Wesbank v Commissioner for the South African Revenue
Services and Another; First National Bank of SA Limited t/a Wesbank v Minister of Finance,37 Roux
argues:

In a decision that says much about its general approach to constitutional adjudication, the
[Court] … cut through all of [section 25’s] conceptual distinctions and reduced the constitutional
property clause inquiry to a single, multi-factor balancing test.38

According to the Court, this test requires consideration of ‘a complexity of relationships’ that must be
scrutinised under a review standard that will vary between rationality and proportionality depending ‘on
all the relevant facts of each particular case’.39 Rather than being ‘unconscious or whimsical’, Roux argues
persuasively that these adjudicative approaches are part of a deliberate strategy on the part of the CCSA to
make its leading doctrines more context-sensitive.40
Although Roux does not cite the Court’s approach to section 36 as evidence of tactical adjudication,
there are a number of reasons to include it as a good, if not better, example than those he does include.
While employing adjudicative devices that create the necessary doctrinal space in specific cases might be
useful in future cases of a similar nature, doing so in respect of the limitation clause would create such
space systemically. Further, if the Court is employing such devices in order to manage its relationship with
the executive and legislature, and to protect its institutional security, then there is no better place to do so
than section 36: the lynchpin of that relationship.

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 10.3 The two-stage approach to the limitation of rights
Since the Constitutional Court’s very first case under the interim Constitution, the Court has advocated a ‘two-stage approach’ to
the limitation of rights.41 Since the adoption of the final Constitution, the Court has for the most part followed this two-stage
approach. In terms of this approach: ‘The first question to be asked is whether the provision in question infringes the rights
protected by the substantive clauses of the Bill of Rights. If it does, the next question that arises will be whether that infringement
is justifiable’.42
In Ex Parte Minister of Safety and Security and Others: In Re S v Walters and Another , the Constitutional Court set out this
two-stage approach in more detail, noting:

First, there is the threshold enquiry aimed at determining whether or not the enactment in question
constitutes a limitation on one or other guaranteed right. This entails examining (a) the content and
scope of the relevant protected right(s) and (b) the meaning and effect of the impugned enactment to
see whether there is any limitation of (a) by (b). Subsections (1) and (2) of s 39 of the Constitution give
guidance as to the interpretation of both the rights and the enactment, essentially requiring them to be
interpreted so as to promote the value system of an open and democratic society based on human
dignity, equality and freedom. If upon such analysis no limitation is found, that is the end of the
matter. The constitutional challenge is dismissed there and then. If there is indeed a limitation,
however, the second stage ensues. This is ordinarily called the limitations exercise. In essence this
requires a weighing-up of the nature and importance of the right(s) that are limited together with the
extent of the limitation as against the importance and purpose of the limiting enactment. Section 36(1)
of the Constitution spells out these factors that have to be put into the scales in making a proportional
evaluation of all the counterpoised rights and interests involved.43

The two-stage approach therefore requires a court first to focus on the substantive rights, for example the right to equality, the
right to vote or the right of detained persons, to determine whether the right was infringed or limited. It then secondly requires the
court to ask whether the infringement or limitation is justifiable in terms of section 36.

COUNTER POINT

Exceptions to the two-stage enquiry

We contend that the Court has at times strayed (explicitly and implicitly) from the two-stage approach. In
Christian Education South Africa v Minister of Education,44 the Court went straight into the justification of
the infringement of the rights implicated by the measure without considering whether they were, in fact,
infringed. The Court merely assumed – without ever deciding – that the relevant rights might have been
infringed. More disturbingly, the Court has on one occasion failed to consider the second stage of the
limitation enquiry at all.45 We assume that these cases are exceptions and that they do not suggest a new
departure for the Court. We therefore assume that the Court is required in each case to follow the
two-stage approach to limitation analysis.

10.4 The threshold enquiry: does the measure limit a protected right?
We deal with the threshold enquiry as it relates to each of the rights in more detail in the chapters that follow. However, to
understand the two-stage approach, it is important to make some preliminary remarks about the threshold enquiry. The
Constitutional Court noted in Walters that the threshold enquiry ‘entails examining (a) the content and scope of the relevant
protected right(s) and (b) the meaning and effect of the impugned enactment to see whether there is any limitation of (a) by (b)’.
46
Two differing approaches have emerged to the threshold enquiry in the jurisprudence of the Constitutional Court. The first is
to give a comprehensive consideration to the scope and content of the right in question before considering whether (and later on
to what extent) the limiting measure infringes on the content of the right as set out. The alternative approach is to accept

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 notionally 47 or even hypothetically 48 that a right has been limited and then to proceed to the second phase of the limitation
analysis without much analytical rigour. Unfortunately, the Constitutional Court has vacillated between these two approaches to
the threshold enquiry of the limitation clause.

PAUSE FOR REFLECTION

Advantages of a substantive, value-based approach to the threshold enquiry

While there is nothing wrong in principle with adopting a notional approach to the threshold enquiry, there
are some factors that weigh in favour of adopting a more substantive, value-based approach. As Woolman
and Botha explain, among these are the following:

First, it is consistent with the text’s admonition that the provisions of the Bill of Rights be
interpreted in light of the values which underlie an open and democratic society based on
human dignity, equality and freedom. The Final Constitution was not meant to protect certain
forms of behaviour and a value-based approach permits us to screen out those forms of
behaviour which do not merit constitutional protection.

Secondly, high value-based barriers for the first stage of analysis mean that only genuine and
serious violations of a constitutional right make it through to FC s 36. If only serious
infringements make it through, then the court can take a fairly rigorous approach with respect to
the justification for the impairment. It could then be fairly confident that when it nullified law or
conduct there would be something worth protecting.

Thirdly, the value-based approach is consistent with the notion that a ‘unity of values’ underlies
both the rights-infringement determination and the limitation-justification analysis. The language
of the interpretation clause and the limitation clause strongly suggests that both enquiries are
driven by a desire to serve the five values underlying our entire constitutional enterprise:
openness, democracy, human dignity, freedom, and equality.49

10.4.1 The content and scope of the relevant protected right

At a general level, the following two comments are relevant to determining the content and scope of a right at the threshold
enquiry. First, it is governed by the general interpretation clause in section 39 of the Constitution. In Walters, the Constitutional
Court held that ‘both the rights and the enactment … must be interpreted so as to promote the value system of an open and
democratic society based on human dignity, equality and freedom’. 50 In this regard, certain values will play a greater role in the
interpretation of particular rights than others.51 In addition, the Constitutional Court has on several occasions stated that rights
must be interpreted contextually.52 Finally, international human rights law may be relevant to the content of certain rights. 53
Second, in a two-stage limitation process it is crucial not to restrict the right unnecessarily by adopting an excessively narrow
interpretation of the right as this would result in the premature termination of the enquiry at the expense of the litigant. However,
too generous or insufficiently discerning an interpretation would render the two-stage approach redundant as all the work would
be left to the limitation enquiry and the value of the substantive approach to this stage of the enquiry would be undercut.
Kentridge AJ noted as much early on in the Constitutional Court’s jurisprudence: ‘The two-stage approach may call for a broader
interpretation of the fundamental right, qualified only at the second stage.’ 54 An example of this approach can be seen in De
Reuck v Director of Public Prosecutions (Witwatersrand Local Division) and Others where the Constitutional Court was faced
with the question of whether or not child pornography amounts to protected speech. 55 The State asked the Court to follow the
approach of the US Supreme Court where certain categories of expression are unprotected forms of speech. The basis for this is
that ‘such materials do not serve any of the values traditionally considered as underlying freedom of expression, namely,
truth-seeking, free political activity and self-fulfillment’.56 The Court rejected this argument, noting:

[O]ur Constitution is different from that of the United States of America. Limitations of rights are
dealt with under section 36 of the Constitution and not at the threshold level. Section 16(1) expressly
protects the freedom of expression in a manner that does not warrant a narrow reading. Any
restriction upon artistic creativity must satisfy the rigours of the limitation analysis.57

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 The dangers of failing to observe this approach can be seen in New National Party v Government of the Republic of South Africa
and Others.58 In this case, the majority found that ‘[t]he requirement that only those persons whose names appear on the national
voters roll may vote’ was a ‘constitutional requirement of the right to vote, and not a limitation of the right’ (our emphasis).59
As such, the question the Court had to answer was whether there was a ‘rational relationship between the [electoral] scheme …
and the achievement of a legitimate governmental purpose’.60 The question was not whether the right to vote was justifiably
limited under section 36(1) by the electoral scheme.61 As Roux notes, ‘apart from a few perfunctory remarks about the
“importance of the right to vote”, the majority made no effort to develop a principled understanding of the right in its
constitutional and political context’.62
Aside from these general observations, specific rights may also contain features relevant to delineating their scope and
content. Here a distinction must be drawn between those rights written in ‘unqualified terms’, 63 and those that contain so-called
internal modifiers. These internal modifiers may either restrict the scope of the right or provide conditions for its operation. In so
far as the second category is concerned, two broad varieties can be distinguished:
• First, there are internal modifiers that qualify the scope of the right either by explicitly excluding certain practices from its
protection or by conditioning its application more subtly.
• Second, there are internal modifiers that modify or supplant the limitation of specific rights.

Internal modifiers that restrict or enumerate the scope and content of rights are relevant at this stage of the enquiry, while internal
modifiers that relate to the limitation of rights are relevant at the limitation stage.
The high-water mark of the Constitutional Court’s approach to the scope and content of a right at this stage of the limitation
analysis is the right to privacy guaranteed in section 14 of the Constitution. Although section 14 does include internal modifiers
which enumerate certain aspects of the right, including the right not to have one’s person, home or property searched, possessions
seized or the privacy of communications infringed, its full scope and content was left up to courts to decide.
In Bernstein and Others v Bester NO and Others, Ackermann J set out a complex formulation of the right, noting:

The truism that no right is to be considered absolute, implies that from the outset of interpretation
each right is always already limited by every other right accruing to another citizen. In the context of
privacy this would mean that it is only the inner sanctum of a person, such as his/her family life, sexual
preference and home environment, which is shielded from erosion by conflicting rights of the
community. This implies that community rights and the rights of fellow members place a
corresponding obligation on a citizen, thereby shaping the abstract notion of individualism towards
identifying a concrete member of civil society. Privacy is acknowledged in the truly personal realm, but
as a person moves into communal relations and activities such as business and social interaction, the
scope of personal space shrinks accordingly.64

A similar approach can be seen in respect of the right to freedom of expression guaranteed in section 16 of the Constitution.
Unlike the right to privacy, the right to freedom of expression contains three internal modifiers. 65 These internal modifiers are
unique in that they are definitional: they neither enumerate nor contract the scope of the right in general terms. Rather, they
specifically exclude certain forms of expression, namely, propaganda for war, incitement to violence and hate speech, from the
right’s ambit.66 As a result, if a form of expression is considered to be one of these three excluded forms, then the limitation of
that expression will not affect a right and the matter will end there. As for the content of the right, in De Reuck, the Court
employed a similar core/periphery construction of the right to freedom of expression.
As noted above, these examples reflect the high-water mark of the jurisprudence on this stage of the limitation enquiry. 67 In
a number of other cases, the Court has failed to undertake a rigorous, meaningful analysis of the scope and content of the
impugned right. Instead, it has pushed the work to the second stage and left behind little in the way of content for subsequent
cases involving the same right.

10.4.2 Is the right infringed by the measure?

Once the scope and content of the right in question has been determined, the next question to be asked is whether the limiting
measure infringes the right as it is defined. According to the Constitutional Court, this involves determining ‘the meaning and
effect of the impugned enactment’ to see whether it limits the relevant protected right. 68 Often this question is addressed
simultaneously with that of scope and content, but it is conceptually distinct.
This aspect of the threshold enquiry is often a fact-specific exercise and turns mainly on the nature and breadth of the
particular limiting measure. Even when the content and scope of the right are clearly set out, this is a complex enquiry. By way of
illustration, in S v Jordan and Others (Sex Workers Education and Advocacy Task Force and Others as Amici Curiae ),69 Sachs

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 and O’Regan JJ, in their minority judgment, faced the problem of where to place commercial sex on Bernstein’s privacy
continuum in order to determine whether the prohibition thereof infringed the right to privacy. In concluding that it did infringe
the right to privacy, they noted:

[I]t is necessary to realise that there are a range of factors relevant to distinguishing the core of privacy
from its penumbra. One of the considerations is the nature of the relationship concerned: an invasion
of the relationship between partners, or parent and child, or other intimate, meaningful and intensely
personal relationships will be a strong indication of a violation close to the core of privacy. Another
consideration is the extent to which the body of a person is invaded: physical searches or examinations
are often invasive of privacy as section 13 of the interim Constitution suggests. As we observed before,
the constitutional commitment to human dignity invests a significant value in the inviolability and
worth of the human body. The right to privacy, therefore, serves to protect and foster that dignity.
Commercial sex involves the most intimate of activity taking place in the most impersonal and public
of realms, the market place; it is simultaneously all about sex and all about money. Selling sex
represents an opportunity for women to earn money but within the framework of deeply structured
sexist and patriarchal patterns of social life. A prohibition on commercial sex, therefore, will not
ordinarily encroach upon intimate or meaningful human relationships. Yet it will intrude upon the
intensely personal sphere of sexual intercourse, albeit intercourse for reward.70

10.5 The justification stage: is the limiting measure in terms of a law of

general application and reasonable and justifiable?
Once a court has determined that a particular measure limits a protected right, it turns its attention to the second stage of the
limitation analysis where it must consider whether the limitation of the right can be justified. If the court finds that the limitation
is justified, the measure has passed the test of constitutionality. If the court finds that the limitation is not justified, then the legal
provision will be unconstitutional and hence invalid. At this stage, there are two independent requirements that must be met to
justify the limitation of a right:
• The limitation must be ‘in terms of law of general application’. 71
• The limitation must be ‘reasonable and justifiable in an open and democratic society based on equality, freedom and human
dignity’.72

10.5.1 Law of general application

The first hurdle to be cleared at the justification stage of the enquiry is that the limiting measure must be ‘sourced’ 73 in a law of
general application. This means that the limitation of a right by some means other than a law of general application will always be
unconstitutional. However, a limitation done in terms of a law of general application may be saved from unconstitutionality by
the limitation clause. The two most common rationales advanced for this requirement are specifically to prevent the legislature
from singling out an individual or group for punishment without a trial and to respect the principle of the rule of law more
generally.74 What exactly is required by this stage of enquiry is unclear as the Constitutional Court has yet to articulate a general
set of requirements that must be met. Rather, it has dealt with this requirement episodically and without much fervour. What is
clear is that this requirement makes demands of both the form and the content of the source of the limiting measure.
First and foremost, the limiting measure must be in terms of something the Court recognises as law. 75 A decision by the
Cabinet which is not authorised or mandated by law or the decision of a big corporation would therefore not constitute a law of
general application. Similarly, the Electoral Commission made a decision not to facilitate the registration of prisoners for the
elections prior to the country’s 1999 general elections. This decision denied prisoners the right to vote afforded all adult citizens
over 18 years of age. The Constitutional Court thus found that the decision was an administrative decision which was not sourced
in a law of general application.76 In such cases, where there is no law to speak of, the operation of this requirement is fairly
straightforward. The question of which of the multitude of exercises of power will qualify as law for these purposes is more
complex. Less controversially, the term includes legislation,77 common law 78 and customary law.79 In addition to legislation,
common law and customary law, the Court has considered other exercises of government power to amount to law, including
subordinate legislation,80 municipal by-laws,81 domesticated international conventions 82 and rules of court.83
In President of the Republic of South Africa and Another v Hugo ,84 Mokgoro and Kriegler JJ addressed the question of
whether or not the powers vested in the President as Head of State would qualify as law for the purposes of section 36(1) in their
separate dissenting opinions. (The majority did not address the issue as it found that the measure in question effectively did not

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 limit the right to equality.) For her part, Mokgoro J held that ‘[a]lthough the Presidential Act is not conventional legislation, in
my view, it satisfies [the law of general application] … precondition’. 85
Conversely, Kriegler J held:

The exercise by the President of the powers afforded by s 82(1)(k) – even in the general manner he
chose in this instance – does not make ‘law’, nor can it be said to be ‘of general application’. The
exercise of such power is non-recurrent and specific, intended to benefit particular persons or classes
of persons, to do so once only, and is given effect by an executive order directed to specific state
officials.86

As far as the content of such laws is concerned, the Constitution makes no explicit demands of the impugned law in this regard
beyond that it must be of general application. To date, the Court has not grappled with the nature of the general application
requirement in great detail. In her dissenting opinion in Hugo, Mokgoro J considered the correlative ‘prescribed by law’
requirement in the European Convention and Canadian Charter of Rights, noting:

It can be seen then that several concerns underlie the interpretation of ‘prescribed by law’. The need
for accessibility, precision and general application flows from the concept of the rule of law. A person
should be able to know of the law, and be able to conform his or her conduct to the law. Further, laws
should apply generally, rather than targeting specific individuals.87

Here, in addition to the law of general application requirement, Mokgoro J placed two additional requirements on the content of
the law: precision and accessibility. Similarly, in Dawood and Another v Minister of Home Affairs and Others; Shalabi and
Another v Minister of Home Affairs and Others; Thomas and Another v Minister of Home Affairs and Others , the Constitutional
Court held:

It is an important principle of the rule of law that rules be stated in a clear and accessible manner. It is
because of this principle that section 36 requires that limitations of rights may be justifiable only if
they are authorised by a law of general application.88

These three demands – general application, accessibility and precision (clarity) – can be said to reflect the minimalist position on
what this precondition demands of the content of the law in question. Some academic commentators go further, setting out
additional requirements to be met by the content of the law in question in order to pass constitutional muster under section 36(1).
89 As far as which approach should be preferred when it comes to the demands on content, the point could be made that these

broader concerns are best left to the next phase of the enquiry. 90

10.5.2 Reasonable and justifiable in an open and democratic society based on human
dignity, equality and freedom

10.5.2.1 Reconsidering the role of proportionality in the justification enquiry

From the outset, the Constitutional Court’s jurisprudence on the limitation of rights has turned almost entirely on the notion of
proportionality or balancing. This is notwithstanding the fact that proportionality does not feature in the text of section 36 of the
Constitution. An important criticism is that it is unclear what exactly proportionality requires and how it drives the limitation
enquiry. This confusion was not necessarily inevitable as both reasonableness and justifiability are capable of greater textual
certainty. However, the phrase, ‘reasonable and justifiable’, is generally understood conjunctively as shorthand for the notion of
proportionality or balancing. Academics have not simplified matters, often accepting the conclusion of proportionality without
unpacking the term. This is not surprising as the term’s flexibility lends itself to morally appealing but legally inexact analysis.
However, neither the confusing nature of proportionality nor high-minded theoretical critiques are sufficient to warrant a
departure from this metaphorical test that has been held to be the centrepiece of the limitation enquiry by the Constitutional
Court. Rather, the primary reason for reconsidering the proportionality enquiry here is to make it simpler to understand without
changing its substance. By identifying those aspects of the limitation enquiry that implicate proportionality and those that do not,
it is hoped that this section will not only demystify the process of limiting rights, but also makes it clearer how proportionality
actually works.
The first step in reconsidering the justificatory enquiry is to separate into different questions the factors the Court considers
when undertaking a section 36 limitation analysis. Under the interim Constitution, certain criteria had to be met by the limiting
measure.91 As noted above, had the Court chosen to follow the Oakes formulation, these criteria would have been further divided

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 into more specific questions.92 In the end, the Constitutional Court and the drafters of the Constitution opted to move in form in
the other direction altogether: from a structured, sequential enquiry with set criteria to be met to a global singular enquiry with
factors to be considered.93
Despite this, the first two questions in the Oakes formulation are present in all the Constitutional Court’s limitation
jurisprudence without exception. These two questions are the following:
• Does the limiting measure serve a legitimate purpose (in an open and democratic society based on equality, freedom and
human dignity)?
• Is there a rational connection between the limiting measure and its stated purpose?

What is more, these two questions find loose and partial expression in the factors contained in sections 36(1)( b) 94 and 36(1)(d).
95 Conceptually, these are threshold tests 96 that are the starting point of limitation analysis both logically and legally. These
threshold tests are logically the starting point as we cannot go on to balance competing rights and interests without first
quantifying them. The tests are legally the starting point in that if a measure fails the two questions, then it can never justifiably
limit a right.
Crucially, these two questions have nothing to do with proportionality or balancing. That is to say, they are not relative to
other factors in the section 36 analysis and can be answered in isolation from the other factors by using conventional legal
reasoning.97 As a result, when it comes to answering these two threshold questions, we do not have to choose between ‘formal or
categorical reasoning’ and ‘balancing and proportionality’.98 Having isolated the threshold questions, what remains of the
section 36 factors makes up the proportionality enquiry proper.99 By unpacking section 36 in this manner, the point is not to deny
the significance of proportionality, but rather to place it in its proper context and, it is hoped, make the term easier to understand.
100
The next question to be asked is how these different enquiries or factors interact. There is no sequence suggested in the text
of section 36(1). Rather, the balancing metaphor suggests that they should be considered simultaneously. As noted above, this
distinguishes section 36 from the interim Constitution and Oakes. Under the interim Constitution, the limitation process was
structured into separate questions. In addition, these questions were sequenced. This meant that if the enquiry failed at one of the
stages, the Court would not proceed to the next phase. However, under section 36 even when the Court separates the factors into
different constituents – and generally considers the threshold questions first – it does not sequence them but sometimes,
ironically, considers them mechanically.101 Having done so, the Court then balances all the factors, notwithstanding the
difference between threshold questions and those relating to proportionality proper. 102 Even when the Court effectively
terminates the enquiry after the threshold, it does so using the language of balancing. 103
This is a clear, if confounding, rejection of the Oakes formulation and one that took many by surprise.104 Aside from general
critiques of the balancing exercise, the all-at-once approach raises specific problems in so far as the threshold questions are
concerned:
• First, the all-at-once approach is illogical as it can never be that a measure that does not seek a constitutionally acceptable
objective or does not achieve that objective will pass the requirement of proportionality.
• Second, and related to this, the all-at-once approach makes for extra work as the Court could just as well stop after the
threshold question is failed.
• Third, the all-at-once approach is less analytically sound. Questions that are initially addressed separately are often lumped
together and resolved using the all-inclusive language of proportionality, glossing over the nuances of the decision-making
process.
• Fourth, the all-at-once approach reduces precedential value by making the balance struck too case-specific.

PAUSE FOR REFLECTION

Concerns regarding the all-at-once approach

The fact that the Constitutional Court glosses over the nuances of the decision-making process by using
the all-inclusive language of proportionality to lump together and resolve questions that were initially
addressed separately is clearly illustrated in its judgment in Makwanyane.
After first having considered retribution, prevention and deterrence separately, the Constitutional Court
went on to conclude that:

[i]n the balancing process the principal factors that have to be weighed are on the one hand the
destruction of life and dignity that is a consequence of the implementation of the death

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 sentence, the elements of arbitrariness and the possibility of error in the enforcement of capital
punishment, and the existence of a severe alternative punishment (life imprisonment) and, on
the other, the claim that the death sentence is a greater deterrent to murder, and will more
effectively prevent its commission, than would a sentence of life imprisonment, and that there is
a public demand for retributive justice to be imposed on murderers, which only the death
sentence can meet … Retribution cannot be accorded the same weight under our Constitution as
the rights to life and dignity, which are the most important of all the rights in Chapter Three. It
has not been shown that the death sentence would be materially more effective to deter or
prevent murder than the alternative sentence of life imprisonment would be. Taking these factors
into account, as well as the elements of arbitrariness and the possibility of error in enforcing the
death penalty, the clear and convincing case that is required to justify the death sentence as a
penalty for murder, has not been made out. The requirements of section 33(1) have accordingly
not been satisfied …105

In this regard, Woolman and Botha note:

The balancer is inclined to restrict her finding to the case at hand, as the next case may,
ostensibly, require that a different balance be struck. While there may be advantages to such a
judicious approach, … there is a growing concern within the academy that the case-by-case
approach to constitutional analysis, in general, and limitations analysis, in particular, blunts the
transformative potential of the Final Constitution.106

This is not just a problem with threshold questions and proportionality questions. It also conflates different
aspects of the proportionality enquiry such as less restrictive, over-broad and reasonable accommodation.

In discussing the justification enquiry, we follow the approach set out below:
• What is the purpose of the limiting measure (not importance yet)? Is it legitimate in an open and democratic society based on
equality, freedom and human dignity?
• What is the relationship between the limiting measure and its stated purpose? More specifically, are they rationally
connected?
• Are there clear, alternative means available that are less restrictive on the full enjoyment of the right?
• Is the legitimate, rationally based limiting measure a proportionate limitation on the right in question, taking into account the
degree of infringement, the nature of the right, the breadth of the measure and the social good it achieves? This is balancing
and proportionality proper.

In Figure 10.1, the question that the diagram seeks to answer is whether an infringement of a fundamental right satisfies the
various requirements of the limitation clause. If it does, then the infringement is constitutionally valid and the law authorising the
infringement will be upheld by the courts.

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 Figure 10.1 The steps in the justification enquiry

The aim of reconsidering proportionality is not substantively to alter the enquiry. The aim is rather to make proportionality more
accessible by providing a simplified lens through which to view the numerous decisions involving limitation and to understand
the different types of limitation analyses undertaken by the courts. We discuss at each point the jurisprudence that illustrates how
courts have followed a particular enquiry. As a brief example, Table 10.1 illustrates how, in Makwanyane, the Court applied the
threshold questions to the three objectives sought by the death penalty, namely retribution, prevention and deterrence, before
concluding with the proportionality assessment. In the process, the differences between the stages are well illustrated.

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 Table 10.1 Applying the threshold questions and the proportionality assessment in Makwanyane

Purpose of Stage 1: Constitutionally Stage 2: Rational Stage 3: Less restrictive Stage 4: Proportionality
limiting valid objective connection test means
measure

Retribution Although the Court did not On balancing the different

state so clearly, retribution factors, the Court reached
all but failed this basic the conclusion that the
threshold requirement: death penalty was not
The Constitution is
constitutionally justifiable
premised on the by upgrading the rights in
assumption that ours question:
will be a constitutional [t]he rights to life and
state founded on the dignity are the most
recognition of human important of all human
rights … To be rights … (para 144)
consistent with the
value of ubuntu ours and systematically
should be a society that downgrading the goods
‘wishes to prevent crime aimed at by the measure.
… [not] to kill criminals The Court argued as
simply to get even with follows:
them (para 131). • Retribution was not a
valid constitutional
objective and therefore:
Prevention The objective of Passed: Failed:
cannot be accorded the
prevention passed this The death sentence The death sentence same weight under our
stage without difficulty: ensures that the ensures that the Constitution as the
Prevention is another criminal will never again criminal will never again rights to life and dignity
object of punishment commit murders commit murders, but it (para 146).
(para 128). (para 128). is not the only way of
doing so, and life • Prevention could be
imprisonment also achieved by life
serves this purpose imprisonment (less
(para 128). restrictive means).
• Deterrence is less
weighty in the balancing
Deterrence Deterrence passed without Passed (with some Failed: process as:
difficulty: reservations). It has not been shown [i]t has not been shown
that the death sentence that the death sentence
The need for a strong would be materially
deterrent to violent would be materially
crime is an end the more effective to deter more effective to deter
validity of which is not or prevent murder than or prevent murder than
the alternative sentence the alternative sentence
open to question. The of life imprisonment
state is clearly entitled, of life imprisonment
indeed obliged, to take would be (para 146). would be (paras 146 and
action to protect human 127).
life against violation by
others (para 117).

COUNTER POINT

A critique of the balancing process

Woolman and Botha critique the balancing process on a number of theoretical grounds:
• First, they point out that people value things differently in qualitative and not solely quantitative terms (
pluralism). The things that we value are not always (or often) commensurate with one another
(incommensurability). As a result, balancing ‘requires substantially more than the invocation of such pat
metaphors as the “scales of justice” (complexity)’.107
• Second, they argue that ‘the Final Constitution – like most constitutional texts – provides little or no
guidance as to how a court should determine the relative weight to be attached to conflicting rights and
interests. One possible result is that the weighting and the ranking of interests are not grounded in
constitutional interpretation … but are based, instead, on the subjective preferences of individual
judges. This enables judges to skirt the demands that attach to difficult and controversial value-choices
by employing the ostensibly neutral, objective or scientific language of balancing’.108
• Third, they point out that the balancing approach has historically been associated with conservative and
incrementalist approaches to adjudication. As a result, the context or case-specific nature of the
balancing approach ‘blunts the transformative potential of the Final Constitution’.109
• Fourth, balancing can lead judges to employ ‘scientific’ language and concepts, such as cost-benefit

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 analysis, Woolman and Botha argue, which ‘invites a new type of formalism which, like all formalist
doctrines, tends to eschew dialogue about important moral and political issues’.110

10.5.2.2 Section 36 in practice

10.5.2.2.1 The purpose of the limiting measure

One of the factors listed in section 36 is ‘the importance of the purpose of the limitation’. This factor is made up of two separate
subcomponents: first, the purpose of the limiting measure, and second, its importance in an open and democratic society. 111 At
this stage of the enquiry the focus is on the purpose of the limiting measure. The limiting measure (the aim it is designed to meet)
must pursue a legitimate constitutional purpose.112 In determining whether or not a particular limiting measure is legitimate,
courts must be mindful not to overstep their role and enter the realm of policy making.
There are no hard-and-fast rules for determining whether the purpose will be considered constitutionally legitimate. Broadly
speaking, the constitutional values of openness, democracy, freedom, equality and dignity will play a role in determining what a
legitimate purpose is. Furthermore, if the purpose of the limiting measure is to comply with an obligation laid out in the
Constitution or is closely connected to the fulfilment of a right contained in Chapter 2, then this requirement will clearly be met.
113
Examples of purposes that have been held to be legitimate include:
• creating and maintaining a disciplined military force 114
• preventing the use and proliferation of harmful substances 115
• maintaining discipline in schools 116
• administering the recovery of debts 117
• regulating of the gambling industry 118
• regulating public broadcasting 119
• preventing and punishing commercial sex (prostitution) 120
• the general administration of justice 121
• protecting the privacy and dignity of people involved in divorce proceedings, in particular children. 122

One example of a purpose that failed at this point of the enquiry is the enforcement of ‘private moral views’. In National
Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others , Ackermann J stated:

The enforcement of the private moral views of a section of the community, which are based to a large
extent on nothing more than prejudice, cannot qualify as such a legitimate purpose. There is
accordingly nothing, in the proportionality enquiry, to weigh against the extent of the limitation and its
harmful impact on gays. It would therefore seem that there is no justification for the limitation.123

As noted above, the Court in Makwanyane considered the imposition of the death penalty as a means to achieve not one but three
purposes: retribution, prevention and deterrence. Although the Court did not go so far as to reject deterrence as a constitutionally
acceptable purpose outright, it did note that ‘[t]o be consistent with the value of ubuntu ours should be a society that “wishes to
prevent crime … [not] to kill criminals simply to get even with them” ’.124
Once a court is satisfied that the limiting measure pursues a constitutionally legitimate purpose, the focus turns to the
relationship between that purpose and the means chosen to achieve it.

10.5.2.2.2 The rational connection requirement

The first basic question to be asked is whether the means chosen achieves its accepted purpose. 125 This threshold stage of the
analysis focuses narrowly on whether there is a rational connection between the limiting measure and the purpose it seeks to
achieve. At this stage, the enquiry is not concerned with whether the means chosen is the optimum means of achieving the
measure nor whether there are more appropriate means of doing so. It is not often that a measure will fail this leg of the test
although there are some examples of it doing so.
In South African National Defence Union v Minister of Defence ,126 the Constitutional Court first determined that
maintaining a disciplined military (required under section 200(1) of the Constitution) was clearly a constitutionally legitimate

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 objective. The Court then held that the blanket ban on soldiers forming and joining trade unions was not rationally connected to
that objective.127
Further, the Court held in S v Bhulwana, S v Gwadiso:

In my view, section 21(1)(a)(i) of the Act cannot be justified in terms of section 33(1) of the
Constitution. Although the need to suppress illicit drug trafficking is an urgent and pressing one, it is
not clear how, if at all, the presumption furthers such an objective. In addition, there appears to be no
logical connection between the fact proved (possession of 115 g) and the fact presumed (dealing).128

In addition, there are other examples of limiting measures that have failed this basic level of scrutiny. 129 As noted above, it
makes little sense to undertake a complex consideration of the balance to be struck between a right and a limiting measure which
bears no rational relationship to its aim.130

10.5.2.2.3 Less restrictive, alternative means of achieving the end

Having established that the reason for limiting the right in question is constitutionally acceptable and that the measure in question
rationally achieves that end, the Court may consider the availability of a less restrictive means. 131 This requirement was the only
addition the drafters of the Constitution made to the Makwanyane factors. Often, the question of the availability of less restrictive
means is conceptually or practically conflated, in both the literature and jurisprudence, with the related notion of overbreadth. For
example, the majority in Prince v President of the Law Society of the Cape of Good Hope stated:

A challenge to the constitutionality of legislation on the grounds that it is overbroad is in essence a

challenge based on the contention that the legitimate government purpose served by the legislation
could be achieved by less restrictive means.132

However, there are in fact two conceptually different enquiries at play here. The one we are concerned with here considers the
possibility of a hypothetical, alternative measure that is less restrictive of the right. We may refer to this as the less restrictive
alternative means enquiry. The other considers whether the chosen measure – considering all the circumstances and not merely
the effect on the right – is well-tailored in light of all the relevant circumstances. 133 We may refer to this as the well-tailored
enquiry. This second enquiry can only be addressed as part of the proportionality enquiry when all the relevant factors are
considered and not merely the measure’s effect on the right.
When the global proportionality approach is taken, it may seem superfluous to separate them, especially since the Court so
often conflates the two. However, there are a number of reasons for, first, maintaining the distinction between these two related
but distinct enquiries and, second, considering the least restrictive, alternative means enquiry before considering the well-tailored
enquiry.
First, maintaining the distinction addresses the difficult question of how far the Court should go in considering less restrictive
means. Means that are less restrictive will always be possible to identify but might not – on balance – be proportionate when
considering all the factors at play, for example cost and other rights. In this sense, a means may not be less restrictive, but may
still be proportional. While the Constitutional Court has stated that it is not its job to find the least restrictive means, it is rightly
far less deferential when considering whether the means chosen by the legislature are well tailored (proportionate) to their
purpose in light of all the relevant section 36 factors.
Second, maintaining the distinction assists in the proper formulation of the notion of reasonable accommodation. This notion,
discussed in more detail below, is often understood as a question of whether there are less restrictive means available. However, it
is better understood as a reverse proportionality enquiry. In other words, the question is not whether the state has gone too far in
restricting the enjoyment of the right (negative protection), but rather whether the state should have gone further by taking
positive steps to prevent the effective limitation of the right (positive protection). 134 This broader enquiry can only be undertaken
at the proportionality stage of the enquiry when all the relevant factors are considered and not merely the possible impact on the
right.
Understanding it through the lens of less restrictive means leads to the problem, discussed above, that there are generally
always less restrictive means. This in turn means that a reasonable accommodation is always notionally possible. However, when
considered as a reverse proportionality enquiry, the question is not whether less restrictive means can be found, but rather
whether they should be employed, taking into consideration all the factors including the cost to society. Here, too, the Court must
be careful not to transform its role into that of policy making.
Finally, if the distinction is maintained, then the less restrictive alternative enquiry can be viewed as a gentle enticement to
the courts, as well as the executive and the legislature, to look for an alternative means before resorting to the difficult task of

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 trying to balance two hard ends. It is an invitation to consider alternative means that are less restrictive of the right as a factor in
the limitation process. Naturally, this minimalist approach makes the most sense when considered before undertaking a
full-blown proportionality enquiry.
Admittedly, if this narrow construction of this factor is adopted, the number of examples of limiting measures failing this leg
of the test is significantly diminished. Also, they become more difficult to identify given the tendency to elide this with aspects of
the proportionality enquiry. Nevertheless, there are some examples of the Court favouring less restrictive alternative means. In S v
Williams and Others, for example, Langa J rejected the suggestion that whipping was justified (under the limitation clause) as a
superior alternative to a custodial sentence on the ground that more humane sentencing options were available. 135 Further, in a
number of cases the Constitutional Court has refused to justify reverse-onus presumptions as limitations on the right to be
presumed innocent on the basis that there are less restrictive means available to achieve the end, namely evidentiary burdens. 136

10.5.2.2.4 Balancing and proportionality proper

Once it has been determined that the end is legitimate, that the means meet the end and that the court has declined to raise
alternative, less restrictive means, then at this point we have something worth balancing. This stage involves balancing or
proportionality which turns intimately on the facts. In broad terms, this stage involves the balancing of competing goods: the right
and the limiting measure that serves a constitutionally acceptable purpose. Returning to the quote in Walters:

In essence this requires a weighing-up of the nature and importance of the right(s) that are limited
together with the extent of the limitation as against the importance and purpose of the limiting
enactment. Section 36(1) of the Constitution spells out these factors that have to be put into the scales
in making a proportional evaluation of all the counterpoised rights and interests involved.137

Before considering how this balancing process might unfold, there are a few general comments to be made about how the right
and the limitation influence the proportionality process generally.
As far as stacking the rights side of the balancing scales is concerned, there are two elements to be considered. The first is the
relative importance of the right under the scheme of rights/interests protected by the Constitution. The question of hierarchy is
controversial and subject to contradictory judicial pronouncements. There is no formal hierarchy of rights under the Constitution
138 and the Constitutional Court has on a number of occasions denied any such hierarchy. 139 However, when it comes to the
process of limiting certain rights, the Court has on a number of occasions suggested that there is, in fact, some form of hierarchy
under the Constitution. The Court noted in National Coalition for Gay and Lesbian Equality that ‘[a]lthough section 36(1) does
not expressly mention the importance of the right, this is a factor which must of necessity be taken into account in any
proportionality evaluation’ (our emphasis).140 In Makwanyane, the Court stated that ‘[t]he rights to life and dignity are the
most important of all human rights …’ 141 More recently, in its limitation analysis in Bhe and Others v Khayelitsha Magistrate
and Others, the Court noted:

The rights violated are important rights, particularly in the South African context. The rights to
equality and dignity are of the most valuable of rights in any open and democratic state. They assume
special importance in South Africa because of our past history of inequality and hurtful discrimination
on grounds that include race and gender.142

At other times, the Court has held that certain rights are not paramount, implying some form of hierarchy. 143 Similarly, our
courts have noted that we do not place the same premium on privacy as other countries. 144 If there is some hierarchy, logically
those rights which are directly based on the founding constitutional values of dignity, freedom and equality are likely to receive
greater attention than others.
The second and more difficult element of stacking the rights side of the scale is determining which portion of the right the
limiting measure strikes at. Does it strike at the core of the right or its periphery (or penumbra 145)? This is the section 36 factor
referred to as the ‘extent of the limitation’.146 However, it has as much to do with the nature of the right as it does the limitation
(not every right is capable of part-infringement). If the threshold enquiry is comprehensive, then the groundwork for this aspect of
the enquiry will already have been covered in that the nature and scope of the right in question will have been covered in some
detail. What is left then is to locate the impact of the limiting measure on the right and assign it a nominal value to be balanced
against the competing value of the limiting measure. Unfortunately, as part of a more general reluctance to give rights content,
147 the Constitutional Court has refused to undertake a detailed analysis of the core and periphery of each right on a number of

occasions.148
Notably, when it comes to proportionality exercises, it is the impact of the measure on the right that will set the bar to be met

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 by the justification.149 In other words, the point of reference is the right itself. As a general rule, the greater the impact is, the
more justification is required. In S v Manamela and Another (Director-General of Justice Intervening) , the Constitutional Court
stated:

As a general rule, the more serious the impact of the measure on the right, the more persuasive or
compelling the justification must be. Ultimately, the question is one of degree to be assessed in the
concrete legislative and social setting of the measure, paying due regard to the means which are
realistically available in our country at this stage, but without losing sight of the ultimate values to be
protected.150

Once the importance of the right and the extent of the limitation are stacked on one end of the balancing scale, the opposing end
is to be filled with the limiting measure. As noted above, there is little point in undertaking a balancing process in respect of a
limiting measure that has been found either not to be rationally connected to a constitutionally acceptable purpose, or which can
be reached through other, less restrictive means (although this has not stopped the Constitutional Court from doing so). Therefore,
a proper balancing exercise involves a limiting measure that meets this minimum, internal threshold. What is left to consider are
the external aspects of the limitation: a more thorough consideration of its objectives and aims in an open and democratic society
based on freedom, equality and dignity.
At this point, the analysis can become complicated by the influence of other rights implicated by the measure or, more
specifically, its purpose. In Christian Education, the limiting measure – the ban on corporal punishment in schools – was
designed to protect the dignity of children.151 Further, in considering the weight to be assigned to the limiting measure and the
interest it seeks to achieve or protect, the Court has at times looked to the relevant practice of other ‘open and democratic’
societies. As O’Regan and Sachs JJ noted in their dissent in Jordan: ‘In approaching the question of proportionality, the Court is
obliged to apply the standards of an open and democratic society.’ 152 The Court has undertaken such reviews in a number of
important cases, including National Coalition for Gay and Lesbian Equality 153 and Prince.154
Once the Court has weighed the right and the limiting measure in their fullest sense and has taken into account the
implications for other rights, then it is left to resolve the conflicting ends using the balancing and proportionality metaphors.
When it comes to this stage, there are broadly two possible arguments available to the Court:
• First, the Court may conclude that the limitation is justifiable because its effect on the right is proportionate. 155 This, in
practice, often involves a finding that the measure strikes the periphery of the right, making its limitation easier to justify.
• Alternatively, the Court may decide that the limitation is not justifiable, in other words the right must prevail. The reason
may be because:
– the effect on the right is disproportionate to the good achieved by the measure
– the means chosen is disproportionate in the sense that it is not well tailored to the purpose. 156

When the measure is held to be reasonable and justifiable, or proportionate to the impact on the right and its importance, this is
balancing in its purest sense: where ‘one right (or interest or value) will simply “outweigh” another right (or interest or value)’.
157 The Court has been reluctant to make a hard choice of one fixed, compellingly important ‘good’ (in this case the limiting
measure) over another (the right). Rather, it has tended (at times simultaneously) to devalue the rights side of the scale, most
often by minimising the impact of the limiting measure on the right. Alternatively, it has elevated the limitation side, often by
underlining the social good achieved by the measure. For example, in reaching the conclusion that the limitation of the right to
freedom of expression occasioned by the prohibition on the possession of child pornography was reasonable and justifiable, the
Constitutional Court in De Reuck focused on the impact of the limiting measure on the right. It noted that pornography ‘does not
implicate the core values of the right’.158 Rather it is an ‘expression of little value which is found on the periphery of the right’.
159 Against this, it weighed the compelling interest of protecting children, as well as the dignity of society as a whole, 160 and

concluded that the peripheral infringement of the right was outweighed by the interests protected by the limiting measure. 161

PAUSE FOR REFLECTION

How should the Constitutional Court handle hard choices?

Woolman and Botha set out the complexities of making hard choices as follows:

How should the Court handle hard choices? First, the Court must be candid and recognise that
there will be situations in which constitutional goods will urge independent and irreconcilable

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 claims upon us: In such situations, we will have to choose between incommensurable goods.
Second, the Court must acknowledge that it lacks a set of second-order rules which might tell us
how to reconcile competing goods with one another. Most importantly, the Court must not view
the choice of one good over another good in hard cases as arbitrary. Instead, it must be candid
about the reasons for its choices and hope that its candour about the reasons for its choices
ultimately reflects the exercise of good judgment: for only such candour will allow the litigants
to become full citizens through their participation in the process of giving the basic law
meaning. This recognition, in turn, holds out the promise that the basic law will come to possess
the normative legitimacy associated with a just legal order.162

When the limiting measure is found to be unjustifiable and the right prevails, this too is often because the effect on the right is
deemed disproportionate or unjustifiable in light of the good achieved by the measure. It may also be because the right is too
important and the effect on it too great and/or because the good achieved by the measure is not sufficiently meritorious.
An example of this can be seen in Islamic Unity Convention v Independent Broadcasting Authority and Others .163 In this
case, the Constitutional Court struck down the legislative provision prohibiting the broadcasting of any material ‘likely to
prejudice relations between sections of the population’. 164 The Court found that ‘[t]he inroads on the right to freedom of
expression made by the prohibition on which the complaint is based are far too extensive and outweigh the factors considered by
the Board as ameliorating their impact’.165
Similarly, in Potgieter v Lid van die Uitvoerende Raad: Gesondheid Provinsiale Regering Gauteng en Andere , the
Constitutional Court found section 68(4) of the Mental Health Act,166 which provided a three-month prescription period for legal
proceedings to be brought against any person in respect of acts performed under the Act, to be an unjustifiable limitation on the
right to access courts.167 The Court stated that this was ‘particularly outrageous and drastic, having regard to the category of
persons it strikes’.168
It is often the case that the limiting measure will fail not as a result of the proportionality of the end it seeks to achieve in
relation to the impact on the right, in other words failing the balancing test, but rather because the means chosen to achieve that
end is not well tailored to its purpose.
In Islamic Unity Convention, the Constitutional Court noted that ‘[i]t has … not been shown that the very real need to protect
dignity, equality and the development of national unity could not be adequately served by the enactment of a provision which is
appropriately tailored and more narrowly focused’.169 In South African National Defence Union, the Constitutional Court found
that a legislative provision 170 that limited the right to freedom of expression by prohibiting members of the SANDF from
performing any ‘act of public protest’ was not reasonable and justifiable as it ‘goes far further than is necessary to ensure [its]
end’.171 In Coetzee v Government of the Republic of South Africa; Matiso and Others v Commanding Officer Port Elizabeth
Prison and Others, the Court held that ‘although [the] objective of enforcing judgment debts was legitimate and reasonable, the
means chosen were not reasonable … because the provisions were overbroad, catching not only those who would not pay, but
also those who could not’.172
Finally, the notion of reasonable accommodation requires special consideration. At the heart of this notion lies the right to be
different. In Christian Education, the Constitutional Court summed up the question as follows:

The underlying problem in any open and democratic society based on human dignity, equality and
freedom in which conscience and religious freedom has [sic] to be regarded with appropriate
seriousness, is how far such democracy can and must go in allowing members of religious communities
to define for themselves which laws they will obey and which not. Such a society can cohere only if all
its participants accept that certain basic norms and standards are binding. Accordingly, believers
cannot claim an automatic right to be exempted by their beliefs from the laws of the land. At the same
time, the state should, wherever reasonably possible, seek to avoid putting believers to extremely
painful and intensely burdensome choices of either being true to their faith or else respectful of the
law.173

Conceptually, the reasonable accommodation notion is unique in that it is an exercise in reverse proportionality. This is done by
shifting the focus of the enquiry from the justifiability of the limiting measure to the justifiability of the effect of that measure on
a particular group or individual. As Sachs J noted in Christian Education:

In the present matter it is clear that what is in issue is not so much whether a general prohibition on
corporal punishment in schools can be justified, but whether the impact of such a prohibition on the

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 religious beliefs and practices of the members of the appellant can be justified under the limitations
test of section 36. More precisely, the proportionality exercise has to relate to whether the failure to
accommodate the appellant’s religious belief and practice by means of the exemption for which the
appellant asked, can be accepted as reasonable and justifiable in an open and democratic society based
on human dignity, freedom and equality.174

Similarly, in Prince, the Constitutional Court phrased its task as deciding whether or not ‘the failure to provide an exception in
respect of the use of cannabis for religious purposes by Rastafari infringed their religious rights under the Constitution’. 175 The
question the Court must address is not whether the state has gone too far in restricting the enjoyment of a right (negative
protection), but rather whether the state should have gone further by taking positive steps to prevent effective limitation of a right
(positive protection).176 It is about the failure of the state to act in light of the proportional effect on the right, not the measures
already taken.177
It is difficult to draw lines around how the reasonable accommodation test works in practice. However, the Court set out
some ground rules in MEC for Education: Kwazulu-Natal and Others v Pillay.178 The Court had to decide whether a school was
required reasonably to accommodate a learner’s desire to wear a nose stud in pursuit of her rights to religion and culture. It
considered first the importance of the practice to the learner and second, the ‘hardship that permitting her to wear the stud would
cause the school’.179 In respect of the importance of the practice to the learner, the Court found that ‘[p]reventing her from
wearing it for several hours of each school day would undermine the practice and therefore constitute a significant infringement
of her religious and cultural identity’.180 In respect of the effect on the school of permitting the learner to wear the nose stud, the
Court found that accommodating the practice would not impose ‘an undue burden upon the school’. 181 As a result, the balance
was tipped in favour of the learner being allowed to wear the nose stud. The Court ordered the school to make a ‘reasonable
accommodation’ of this practice.182
Clearly, in addressing the notion of reasonable accommodation, courts must be mindful of the separation of powers. As Sachs
J noted in Prince:

The search for an appropriate accommodation in this frontier legal territory accordingly imposes a
particularly heavy responsibility on the courts to be sensitive to considerations of institutional
competence and the separation of powers. Undue judicial adventurism can be as damaging as excessive
judicial timidity.183

PAUSE FOR REFLECTION

Applying the notion of reasonable accommodation

The notion of reasonable accommodation applies in two distinct contexts. First, it can apply in cases where
a court has to decide whether discrimination is either fair or unfair and hence in breach of section 9 of the
Constitution or the relevant section of the Promotion of Equality and Prevention of Unfair Discrimination Act
(PEPUDA).184 Second, it can apply when dealing with the justificatory stage to determine whether the
limitation was justifiable or not.
In the second context, the question focuses on whether the state has done enough to accommodate
the interests of the person or group who claim that their rights have been infringed. Put differently, where a
law of general application infringes on a right, the question is whether this infringement is justifiable
because the law has reasonably accommodated the interests of those whose rights are being infringed by
the legislative provision. In such cases, the burden of proof, discussed in the next section, becomes
important.

10.6 The burden of justification

The jurisprudence of the Constitutional Court on the question of whether there is a burden of proof or justification on the party
seeking to rely on the limiting measure to justify it under section 36 is complex. The general principle was set out in Makwanyane
as follows: ‘It is for the legislature, or the party relying on the legislation, to establish this justification, and not for the party
challenging it to show that it was not justified.’ 185 This has been repeated in a number of subsequent cases.

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 The difficulty arises when the government or private actor seeking to rely on the limiting measure makes an unsatisfactory
attempt at justifying it under section 36 or none at all. If the burden of justification was applied strictly, in other words as an onus
in the proper sense, then in such instances the limitation would fail. However, the Court has pointed out on a number of occasions
that this is a unique form of onus, an ‘onus of a special type’. 186
What is required under this special type of onus is less clear. The Court in Moise v Greater Germiston Transitional Local
Council noted:

It is also no longer doubted that, once a limitation has been found to exist, the burden of justification
under s 36(1) rests on the party asserting that the limitation is saved by the application of the
provisions of the section. The weighing up exercise is ultimately concerned with the proportional
assessment of competing interests but, to the extent that justification rests on factual and/or policy
considerations, the party contending for justification must put such material before the Court. It is for
this reason that the government functionary responsible for legislation that is being challenged on
constitutional grounds must be cited as a party. If the government wishes to defend the particular
enactment, it then has the opportunity – indeed an obligation – to do so. The obligation includes not
only the submission of legal argument but the placing before Court of the requisite factual material
and policy considerations. Therefore, although the burden of justification under s 36 is no ordinary
onus, failure by government to submit such data and argument may in appropriate cases tip the scales
against it and result in the invalidation of the challenged enactment.187

Further, in Minister of Home Affairs v National Institute for Crime Prevention and the Re-Integration of Offenders (NICRO) and
Others, the Court laid down the general principles:

Where justification depends on factual material, the party relying on justification must establish the
facts on which the justification depends. Justification may, however, depend not on disputed facts but
on policies directed to legitimate governmental concerns. If that be the case, the party relying on
justification should place sufficient information before the court as to the policy that is being
furthered, the reasons for that policy, and why it is considered reasonable in pursuit of that policy to
limit a constitutional right. That is important, for if this is not done the court may be unable to discern
what the policy is, and the party making the constitutional challenge does not have the opportunity of
rebutting the contention through countervailing factual material or expert opinion. A failure to place
such information before the court, or to spell out the reasons for the limitation, may be fatal to the
justification claim. There may however be cases where despite the absence of such information on the
record, a court is nonetheless able to uphold a claim of justification based on common sense and
judicial knowledge.188

From this we can distil three species of justification arguments: factual arguments, policy-based arguments and legal arguments.
The Court appears to suggest that the onus that will be applied will differ depending on which form (or forms) of argument are
being applied. Although the Court will at times come to the assistance of the state or the individual trying to justify the limitation,
it can only do so in terms of arguments and not in terms of facts. 189 Similarly, when it comes to policy-based arguments, the
Court must be wary of its role and that of the executive under the separation of powers doctrine. However, when there is scope
for the Court to come to the assistance of an ailing justificatory argument, it has been willing to do so with varying levels of
enthusiasm.
On a number of other occasions the Court has come to the assistance of the government when it comes to justifying limiting
measures. In National Coalition for Gay and Lesbian Equality, it held that ‘even if the respondent makes no attempt to discharge
its “burden of justification”, the court must nevertheless consider the possibility that a limitation of rights is justifiable’. 190 In
Phillips and Another v Director of Public Prosecutions and Others , Yacoob J noted that ‘the absence of evidence and argument
from the state does not exempt the court from the obligation to conduct the justification analysis and to apply [the limitation
clause]’.191 More recently, in Johncom Media Investments Limited v M and Others, Jafta AJ noted that even though ‘[n]o party
contended that the section 36 justification requirements were met … [i]t is nevertheless necessary to deal with the question of
justification briefly’.192 Conversely, in Centre for Child Law v Minister for Justice and Constitutional Development and Others ,
Cameron J, having criticised the government’s attempts at justification, found that ‘no maintainable justification has been
advanced’ for including children in the minimum sentencing regime for certain offences. 193

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 10.7 Internal limitations
As noted above, a number of rights are subject to internal modifiers or internal limitations which, broadly speaking, modify the
scope and content of the right or the manner in which it is limited. These internal limitations limit the scope and content of the
right and must be considered before considering the section 36 limitation clause. This means a court first looks at the internal
limitation to determine the scope and content of the right and the outer limits of that right. If there is still an infringement of the
right despite the fact that the right is internally limited, then the court has regard to the limitation clause.
Sections 9, 15, 24, 25, 26, 27, 29, 30, 31 and 32 of the Constitution all contain some form of internal limitation provisions.
The relationship between these provisions and section 36 is complex. The Court has generally chosen to undertake, at times
mechanically, section 36 analyses in conjunction with these internal limitation provisions. Beyond this, it has avoided adopting a
general approach to managing this relationship. As such, each of the internal limitations must be considered in the context of the
relevant right.194 However, two examples deserve further mention as they illustrate the difficulties associated with
simultaneously applying internal limitations provisions and section 36.
In respect of the right to equality, section 9 of the Constitution includes the right not to be subject to unfair discrimination by
the state or private individuals.195 In Harksen v Lane NO and Others, the Constitutional Court set out a complex test for
determining first whether discrimination has taken place and second whether such discrimination is unfair. 196 This second test
contains a number of factors that are similar to those considered under section 36. 197 This has led some to argue that the
section 9 Harksen ‘enquiry into unfair discrimination … exhausts a meaningful enquiry into the justification for any such
violations – whether it occurs in terms of law or conduct’. 198 However, in each case where the Court has applied this test, it has
continued to apply section 36 independently.199 That being said, the Court has yet to find that an act that amounts to unfair
discrimination is a justifiable limitation of the right to equality under section 36.
Similarly, the Court’s complex approach to section 25(1) has called into question the usefulness of section 36. 200 In First
National Bank, the Court developed a complex test for determining whether property had been arbitrarily deprived in violation of
section 25(1) of the Constitution.201 The Court then went on to consider the relationship between this internal limitation and
section 36. It acknowledged the ‘circularity’ of applying section 36 in such circumstances, 202 but noted that ‘[n]either the text
nor the purpose of section 36 suggests that any right in the Bill of Rights is excluded from limitation under its provisions’. 203
Having set out the difficulty, the Court then noted:

In view of the conclusion ultimately reached on this part of the case, it is not necessary to decide this
question finally here. It will be assumed, without deciding, that an infringement of section 25(1) of the
Constitution is subject to the provisions of section 36.204

The argument of circularity is even stronger in the case of section 25(1) as the Constitutional Court’s formulation closely
approximates, to the extent of specifically referencing,205 the proportionality test in section 36. Woolman and Botha note:

[The section 25] test for arbitrary deprivation of property consciously incorporates a sliding scale
proportionality assessment – the sine qua non of limitations enquiries – into the rights stage of the
analysis. Little, if any, space remains for additional forms of justification to be offered under
[section 36].206

Nevertheless, the Court continues to apply internal limitations provisions and section 36 conjunctively, but generally to no
practical effect.

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 PAUSE FOR REFLECTION

The interaction between legislation giving effect to certain rights and the limitation
clause
A number of provisions in the Bill of Rights require the legislature to enact specific legislation to give effect
to certain rights. See, for example, section 9(4) and section 33. Although they will be dealt with in more
detail in the relevant chapters, brief mention must be made of the interaction between such legislation and
the limitation clause. The general principle governing the relationship between such legislation and the right
it seeks to give effect to is that ‘courts must assume that the [legislation] is consistent with the Constitution
and claims must be decided within its margins’.207 The upshot of this is that ‘a litigant cannot circumvent
legislation enacted to give effect to a constitutional right by attempting to rely directly on the constitutional
right’,208 but must challenge the legislation in its entirety if they are not happy with it.
Although the limitation aspect is given less attention, logically both the application and the limitation of a
right must be addressed within the margins of the relevant piece of legislation. As a result, aspects of the
section 36 enquiry are often incorporated in substance in provisions of such legislation. For example, under
the Promotion of Administrative Justice Act (PAJA),209 ‘the requirements of fair administrative procedure
contemplated in s 3(2) may be departed from where it is reasonable and justifiable to do so’,210 taking into
account, among others, the object of the empowering provision and the nature and the purpose of the
decision. Here the Court uses section 36 in substance to interpret a provision of PAJA, a piece of
legislation. Similarly, section 14 of the PEPUDA set outs the requirements for determining whether
discrimination is unfair. This closely maps the questions asked under section 36, including the notion of
reasonable accommodation.
This approach does not mean that the right falls away entirely. Rather, it will remain relevant, whether
expressly or by implication, to the interpretation of the legislation in question. As the Court held in National
Education Health & Allied Workers Union (NEHAWU) v University of Cape Town and Others in the context
of the Labour Relations Act (LRA): 211

[T]he LRA gives content to section 23 of the Constitution and must therefore be construed and
applied consistently with that purpose. Section 3(b) of the LRA underscores this by requiring
that the provisions of the LRA must be interpreted ‘in compliance with the Constitution’.212

This opens up the possibility of section 36 having an interpretative influence on the correlative limitations
provisions of the legislation in question. For example, in MEC: Department of Agriculture, Conservation and
Environment and Another v HTF Developers (Pty) Limited, one of the few Constitutional Court cases that
deal with section 24, Ngcobo J wrote:

Of course procedural fairness as envisaged in s 33 of PAJA is flexible. In the case of s 33, the
right to just administrative action may be limited under s 36(1). In the case of PAJA, the
requirements of fair administrative procedure contemplated in s 3(2) may be departed from
where it is reasonable and justifiable to do so. Factors that are relevant to the question whether
there should be a departure include the objects of the empowering provision; the nature and the
purpose of the decision; and the urgency of taking the decision or the urgency of the matter. 213

10.8 The limitation of rights apart from section 36(1)

Section 36(2) provides that no law may limit any right entrenched in the Bill of Rights except as provided for in subsection (1) or
‘in any other provision of the Constitution’. An example of such a provision can be found in the amnesty provision contained in
the epilogue of the interim Constitution.214 In Azanian Peoples Organization (AZAPO) and Others v President of the Republic of
South Africa and Others, the Constitutional Court found that this amnesty provision condoned any possible violation of the right
to access court of victims of apartheid crimes and their relatives by the granting of civil and criminal amnesty by the TRC. 215
The more difficult question is how to justify rights violations based indirectly on provisions of the Constitution. The Court
has dealt with the possibility of the violation of rights by section 173 of the Constitution on two separate occasions without
clarifying the textual basis for doing so.216 In South African Broadcasting Corporation Limited v National Director of Public

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 Prosecutions and Others, the majority applied a proportionality test in determining whether the violation of rights by section 173
of the Constitution was justifiable without relying expressly on section 36(1) or 36(2). 217 Likewise, the minority (per Moseneke
DCJ, Mokgoro J concurring) drew a distinction between the limitation of a right by ‘relying only on the power to regulate
procedure under s 173 [of the Constitution]’ and the limitation of rights by relying ‘on a law of general application that confers a
discretion to limit an entrenched right’.218 They implied that the test to be applied was different from that in section 36.
However, the Court went on to insist that ‘at a bare minimum, the limitation must, in substance, fall within the bounds imposed
by section 36(1)’.219
Then, in Independent Newspapers (Pty) Ltd v Minister for Intelligence Services (Freedom of Expression Institute as Amicus
Curiae) In re: Masetlha v President of the Republic of South Africa and Another , the Court again (this time per Moseneke DCJ)
used section 173 and proportionality rather than ‘a statute or other law of general application as the basis for restricting the
disclosure of the material’.220
It is not clear what the textual basis for the Court’s proportionality assessment is. In this regard, Du Plessis and Penfold note:

[T]he majority used section 173 as the basis for limiting the right to open justice. It is surprising that
Moseneke DCJ should adopt such a position, given that he appears previously to have rejected the
approach of using section 173 as a self-standing basis for limiting fundamental rights [in South African
Broadcasting Corporation] … It seems to us that the application of this reasoning in Independent
Newspapers would mean that a limitation on the right to open justice, occasioned by a court directing
that certain parts of the record are not to be made publicly available, is required to pass the limitations
test in section 36(1). This requires the limitation to be in terms of law of general application, and to be
reasonable and justifiable. We would have thought that section 173 is capable of fulfilling the law of
general application requirement, with the remaining question being whether the limitation is
reasonable and justifiable.221

The use of proportionality by the Court in both these cases suggests it is applying section 36(1). However, it seems unwilling to
do so formally. The difficulty with the Court’s approach is that it grants courts considerable power to infringe rights under
section 173 without comparable protection. As Yacoob J noted in his dissent in Independent Newspapers, ‘[i]t is difficult to
justify a regime in which a court can limit rights more easily than a legislature can’. 222

SUMMARY

When a person challenges a law on the grounds that it infringes one or more of the rights guaranteed in the Bill of Rights, a court
has to perform two tasks. The court must first determine whether the law being challenged limits any of the rights protected by
the substantive clauses of the Bill of Rights. If it does, the court then has to go on to determine whether that limitation is
justifiable. A limitation will be justifiable if it satisfies the requirements of section 36(1) of the Constitution (the limitation
clause).
When it came to interpreting the limitation clause, most commentators expected the Constitutional Court to follow the
sequential structured approach, in which a series of specific questions are addressed, adopted by the Canadian Supreme Court in
Oakes. In Makwanyane, however, the Constitutional Court rejected this approach and adopted a singular global approach in
which certain factors are considered. This singular global approach is usually referred to as a balancing or proportionality test.
Unfortunately, it is not always clear what this balancing or proportionality test requires or how it drives the limitation
enquiry. To make it simpler to understand this test, we divided the factors listed in section 36(1) into four different questions.
These questions are as follows:
• What is the purpose of the limiting measure? Is it legitimate in an open and democratic society based on equality, freedom
and human dignity?
• What is the relationship between the limiting measure and its stated purpose? More specifically, are they rationally
connected?
• Are there clear, alternative means available that are less restrictive on the full enjoyment of the right?
• Is the legitimate, rationally based limiting measure a proportionate limitation on the right in question, taking into account the
degree of infringement, the nature of the right, the breadth of the measure and the social good it achieves? This is balancing
and proportionality proper.

The aim of this reconsideration is not to alter substantively the justification enquiry. Instead, it is to make proportionality more
accessible by providing a simplified lens through which to view the numerous decisions involving limitation and to understand
the different types of limitation analysis undertaken by the courts.

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 1 S 1(c) of the Constitution states that South Africa is a sovereign, democratic state founded on, inter alia, ‘[the] supremacy of the Constitution and the rule
of law’. Further, s 7 states: ‘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 S 8(1) of the Constitution states: ‘The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state.’
3 For example, s 9(4) of the Constitution prohibits horizontal discrimination, stating: ‘No person may unfairly discriminate directly or indirectly against
anyone on one or more [prohibited] grounds.’
4 For a fairly negative assessment of public support for the Constitutional Court, see Gibson, JL and Caldeira, GA (2003) Defenders of democracy?
Legitimacy, popular acceptance, and the South African Constitutional Court Journal of Politics 65(1):1–30 at 1. Du Plessis argues that the Constitutional
Court must go a step further by not only engaging with public opinion, but where necessary changing it by ‘edify[ing] the South African public about
their ethical identity under the Constitution’. See Du Plessis, M (2002) Between apology and utopia: The Constitutional Court and public opinion South
African Journal on Human Rights 18(1):1–40 at 1.
5 See Dworkin, RM (1978) Taking Rights Seriously 184.
6 (CCT25/94) [1995] ZACC 4; 1995 (3) SA 867; 1995 (7) BCLR 793 (CC) (8 June 1995) para 129.
7 Even if the test can be conceptually pinned down, it is problematic by the use of language alone. In Prince v President of the Law Society of the Cape of
Good Hope (CCT36/00) [2002] ZACC 1; 2002 (2) SA 794; 2002 (3) BCLR 231 (25 January 2002) para 151, Sachs J, for example, attempts to bring the
abstract enquiry down to the ground by noting that ‘the weighing of the respective interests at stake does not take place on weightless scales of pure logic
pivoted on a friction-free fulcrum of abstract rationality’. This description is not easy to comprehend.
8 This evolution will form the basis of the reconsideration of the notion of proportionality below.
9 In De Reuck v Director of Public Prosecutions (Witwatersrand Local Division) and Others 2003 (3) SA 389 (W) 425G, the High Court noted:
I reiterate that the rights contained in the Bill of Rights are not absolute. Rights have to be exercised with due regard and respect for the rights of
others. Organised society can only operate on the basis of rights being exercised harmoniously with the rights of others. Of course, the rights
exercised by an individual may come into conflict with the rights exercised by another, and where rights come into conflict, a balancing process is
required.
10 S v Makwanyane and Another (CCT3/94) [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391; [1996] 2 CHRLD 164; 1995 (2) SACR 1 (6 June 1995)
para 100.
11 See Makwanyane para 104.
12 Art 1 of the Canadian Charter of Rights and Freedoms in Part 1 of the Constitution Act (1982) states: ‘The Canadian Charter of Rights and Freedoms
guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and
democratic society.’
13 S 33(1) of the interim Constitution. Regarding the evolution of s 33(1), Woolman and Botha note: ‘The basic form of the interim Constitution’s
limitations clause did not change over the course of the 12 reports generated by the Multi-Party Negotiating Forum’s Technical Committee on
Fundamental Rights. In its second report, the Committee identified what it believed to be the primary features of a limitations clause: (a) a ‘law of general
application’ threshold test; (b) a reasonableness requirement; (c) a necessity requirement; (d) a ‘justifiable in a free, open and democratic society’
requirement; (e) a proportionality or balancing approach; (f) a ‘non-derogation from the essential content of the right’ requirement; and (g) an
immunisation of select rights from any limitation at all. With the exception of the last characteristic, all of these attributes appear in one form or another
in the 12th and final version of the interim Constitution’s limitations clause.’ See Woolman, S and Botha, H ‘Limitation’ in Woolman, S and Bishop, M
(eds) (2013) Constitutional Law of South Africa 2nd ed rev service 5 34.10–34.11. For a discussion of the limitations clause in s 33 of the interim
Constitution, see White, J ‘Constitutional litigation and interpretation, and fundamental rights’ (1994) Juta’s Annual Survey of South African Law 35–66.
14 Entrenched rights were listed in s 33(1) (b)(aa) and (bb) of the interim Constitution as ss 10, 11, 12, 14(1), 21, 25 or 30(1)(d), 30(1)(e) or 30(2) and ss 15,
16, 17, 18, 23, or 24 in so far as such rights relate to free and fair political activity.
15 For a more detailed discussion of the evolution of s 33(1), see Woolman and Botha (2013).
16 In Makwanyane para 108, the German test was described by the Constitutional Court as follows:
It has regard to the purpose of the limiting legislation, whether the legislation in fact achieves that purpose, whether it is necessary therefor, and
whether a proper balance has been achieved between the value enhanced by the limitation, and the fundamental right that has been limited.
17 [1986] 1 SCR 103. This judgment was also favourably quoted in Makwanyane para 105.
18 R v Oakes [1986] 1 SCR 103 para 74.
19 (CCT3/94) [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391; [1996] 2 CHRLD 164; 1995 (2) SACR 1 (6 June 1995).
20 Makwanyane para 104.
21 Makwanyane para 104. The reformulation was, it must be noted, welcomed by some commentators at the time. See Bronstein, V and Robinson, K
‘Constitutional jurisprudence and the Bill of Rights’ (1996) Juta’s Annual Survey of South African Law 53: ‘Here the court acknowledges one’s intuitive
sense that the effect of the proportionality test used in analysing rights and their limitations does not depend on the wording of the limitation clause in an
individual case. The best interpretation of the statement quoted above is that the rights in the Bill of Rights are not weakened by the omission of the word
“necessary”. The implication is that it does not make a difference whether the operative words in the limitation clause are “necessary” or “reasonable and
justifiable”. This pronouncement should be interpretively important in the future.’ Such an early departure from the wording of s 36 – by academics no
less – was a sign of things to come.
22 Makwanyane para 104.
23 In doing so, the Constitutional Court took its lead from the German Constitutional Court which, Chaskalson J remarked in Makwanyane para 108, ‘also
has a provision similar to section 33(1)(b) of our Constitution, but the Court apparently avoids making use of this provision, preferring to deal with
extreme limitations of rights through the proportionality test’.
24 Under the text of the interim Constitution’s limitation clause, courts must first ask if a limitation is reasonable. Only if it is deemed to be reasonable, will
they move on to the second question as to whether it is justifiable, at which point the courts would be required to balance competing interests.
25 At the time of its drafting, the exact phraseology was contested and confused. As noted at the time: ‘While the section in the Working Draft on the
limitation of rights was replete with alternative constructions providing that a right may be limited only to the extent that it is “reasonable/reasonable and
justifiable/reasonable and necessary/necessary/justifiable” (s 35(1)(a), Working Draft), in the end the Constitutional Assembly settled for the reasonable
and justifiable formulation [s 36(1) in the final Constitution] despite some rather puerile debate in which it seemed as if the constitutional experts did not
really seem to have an opinion as to whether there was any significant point to the different formulations. This particular debate created some confusion
in a public already well rehearsed in the promise that the “draft text has been written in plain language so that everyone can read and understand it”.’ See
Annual Survey of South African Law.
26 In Makwanyane para 104, the Court also introduced factors to be considered in the balancing process, noting: ‘In the balancing process the relevant
considerations will include the nature of the right that is limited and its importance to an open and democratic society based on freedom and equality; the
purpose for which the right is limited and the importance of that purpose to such a society; the extent of the limitation, its efficacy and, particularly where
the limitation has to be necessary, whether the desired ends could reasonably be achieved through other means less damaging to the right in question.’
27 While these factors added some substance to an otherwise fairly abstract process, this value was offset by the exclusion of two features of s 33 of the
interim Constitution that could potentially have narrowed down the ‘universe of possibility’ presented by the open-ended nature of the balancing test. The
first was the requirement in s 33(1)(b) of the interim Constitution that limitations must not ‘negate the essential content of the right in question’. The

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 second was the requirement that, in respect of certain entrenched rights, the limitation must pass the additional test of being necessary. See Woolman, S
‘Application’ in Woolman and Bishop (2013) 31.145. While these will no doubt have presented their own problems, they would have brought some
clarity to the process of limiting rights. Notably, there was an objection raised in the First Certification judgment regarding the omission of ‘necessary’
but that was quickly dismissed. See Certification of the Constitution of the Republic of South Africa, 1996 (CCT 23/96) [1996] ZACC 26; 1996 (4) SA
744 (CC); 1996 (10) BCLR 1253 (CC) (6 September 1996) para 90.
28 Lenta, P (2001) Just gaming? The case for postmodernism in South African legal theory South African Journal on Human Rights 17(2):173–209 at
175–6.
29 See, for example, the equality test in Harksen v Lane NO and Others (CCT9/97) [1997] ZACC 12; 1997 (11) BCLR 1489; 1998 (1) SA 300 (7 October
1997).
30 Roux, T (2007) Tactical adjudication: How the Constitutional Court of South Africa survived its first decade 29, available at http://www.saifac.org.za
/docs/2007/Tactical%20Adjudication.pdf.
31 Roux (2007) 30.
32 Roux (2007) 30.
33 Roux (2007) 30.
34 Roux, T (2009) Principle and pragmatism on the Constitutional Court of South Africa International Journal of Constitutional Law 7(1):106–38 at 108.
35 Roux (2009) 135.
36 Roux (2009) 135.
37 (CCT19/01) [2002] ZACC 5; 2002 (4) SA 768; 2002 (7) BCLR 702 (16 May 2002).
38 Roux (2009) 134–5.
39 First National Bank para 100.
40 Roux (2009) 136.
41 S v Zuma and Others (CCT5/94) [1995] ZACC 1; 1995 (2) SA 642; 1995 (4) BCLR 401 (SA); 1995 (1) SACR 568; [1996] 2 CHRLD 244 (5 April 1995)
para 21. Kentridge AJ added: ‘First, has there been a contravention of a guaranteed right? If so, is it justified under the limitation clause?’ See also S v
Williams and Others (CCT20/94) [1995] ZACC 6; 1995 (3) SA 632; 1995 (7) BCLR 861 (CC) (9 June 1995) para 54; Makwanyane paras 100–02, 208.
However, Sachs J emerged in opposition to this, noting in Coetzee v Government of the Republic of South Africa; Matiso and Others v Commanding
Officer Port Elizabeth Prison and Others (CCT19/94, CCT22/94) [1995] ZACC 7; 1995 (10) BCLR 1382; 1995 (4) SA 631 (22 September 1995) para 46
that ‘faithfulness to the Constitution is best achieved by locating the two-stage balancing process within a holistic, value-based and case-oriented
framework’.
42 South African National Defence Union v Minister of Defence (CCT27/98) [1999] ZACC 7; 1999 (4) SA 469; 1999 (6) BCLR 615 (26 May 1999) para 18.
43 (CCT28/01) [2002] ZACC 6; 2002 (4) SA 613; 2002 (7) BCLR 663 (21 May 2002) paras 26–7.
44 (CCT13/98) [1998] ZACC 16; 1999 (2) SA 83; 1998 (12) BCLR 1449 (14 October 1998) para 27: ‘For the purposes of this judgment, I shall adopt the
approach most favourable to the appellant and assume without deciding that appellant’s religious rights under sections 15 and 31(1) are both in issue. I
shall also assume, again without deciding, that corporal punishment as practised by the appellant’s members is not “inconsistent with any provision of the
Bill of Rights” as contemplated by section 31(2). I assume therefore that section 10 of the Schools Act limits the parents’ religious rights both under
section 31 and section 15.’
45 Veldman v Director of Public Prosecutions (Witwatersrand Local Division) (CCT19/05) [2005] ZACC 22; 2007 (3) SA 210 (CC); 2007 (8) BCLR 827
(CC) (5 December 2005).
46 Walters paras 26–7.
47 See Beinash and Another v Ernst & Young and Others (CCT12/98) [1998] ZACC 19; 1999 (2) SA 91; 1999 (2) BCLR 125 (2 December 1998).
48 In Mistry v Interim National Medical and Dental Council and Others (CCT13/97) [1998] ZACC 10; 1998 (4) SA 1127; 1998 (7) BCLR 880 (29 May
1998) para 28, Sachs J found the periodic inspection of health professionals’ business premises would have ‘entailed only the most minimal and easily
justifiable invasions of privacy, if they had qualified as invasions of privacy at all’ (our emphasis). This approach was followed by Ngcobo J in S v
Jordan and Others (Sex Workers Education and Advocacy Task Force and Others as Amici Curiae (CCT31/01) [2002] ZACC 22; 2002 (6) SA 642; 2002
(11) BCLR 1117 (9 October 2002) paras 28–9. Ngcobo J held: ‘…even if the right to privacy is implicated, [h]aving regard to the legitimate State interest
in proscribing prostitution and brothel-keeping, viewed against the scope of the limitation on the right of the prostitute and brothel-keeper to earn a living,
I conclude that if there be a limitation of the right to privacy, the limitation is justified’. See Woolman and Botha (2013) 34.4, fn1. See South African
Broadcasting Corporation Limited v National Director of Public Prosecutions and Others (CCT58/06) [2006] ZACC 15; 2007 (1) SA 523 (CC); 2007 (2)
BCLR 167 (CC); [2006] JOL 18339 (CC) (21 September 2006).
49 See Woolman and Botha (2013) 34.17–34.18.
50 Walters para 26.
51 As Woolman and Botha note: ‘For each right there are specific values that can be said to have led to its constitutionalisation.’ As a result, the ‘specific
values that animate each right’ will play particular roles in interpreting those rights. See Woolman and Botha (2013) 34.17.
52 In Bernstein and Others v Bester NO and Others (CCT23/95) [1996] ZACC 2; 1996 (4) BCLR 449; 1996 (2) SA 751 (27 March 1996) para 79,
Ackermann J noted in the context of the right to privacy:
The two-stage approach requires, as the first step, a definition of the scope of the relevant right. At this stage already … it is necessary to
recognize that the content of the right is crystallized by mutual limitation. Its scope is already delimited by the rights of the community as a whole
(including its members).
53 See South African National Defence Union paras 25–7 where O’Regan J considered the recommendations and conventions of the International Labour
Organization in setting out the content of the right to work.
54 Zuma para 21. Further, in Makwanyane para 100: ‘Our Constitution … calls for a “two-step” approach, in which a broad rather than a narrow
interpretation is given to the fundamental rights enshrined in Chapter 3 and limitations have to be justified through the application of section 33.’
55 (CCT5/03) [2003] ZACC 19; 2004 (1) SA 406 (CC); 2003 (12) BCLR 1333 (CC) (15 October 2003).
56 De Reuck para 48.
57 De Reuck para 48.
58 (CCT9/99) [1999] ZACC 5; 1999 (3) SA 191; 1999 (5) BCLR 489 (13 April 1999).
59 New National Party para 15.
60 New National Party para 19.
61 New National Party para 24.
62 Roux (2009) 127. See, however, the dissenting opinion of O’Regan J.
63 Williams para 21.
64 (CCT23/95) [1996] ZACC 2; 1996 (4) BCLR 449; 1996 (2) SA 751 (27 March 1996) para 67.
65 Magajane v Chairperson, North West Gambling Board (CCT49/05) [2006] ZACC 8; 2006 (10) BCLR 1133 (CC); 2006 (5) SA 250; 2006 (2) SACR 447
(8 June 2006) para 59 fn 73.
66 In Islamic Unity Convention v Independent Broadcasting Authority and Others (CCT36/01) [2002] ZACC 3; 2002 (4) SA 294; 2002 (5) BCLR 433
(11 April 2002) para 30:

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 How is section 16(2) to be interpreted? The words ‘the right in subsection (1) does not extend to …’ imply that the categories of expression
enumerated in section 16(2) are not to be regarded as constitutionally protected speech. Section 16(2) therefore defines the boundary beyond
which the right to freedom of expression does not extend. In that sense, the subsection is definitional. Implicit in its provisions is an
acknowledgment that certain expression does not deserve constitutional protection because, among other things, it has the potential to impinge
adversely on the dignity of others and cause harm. Our Constitution is founded on the principles of dignity, equal worth and freedom, and these
objectives should be given effect to.
67 See further Zealand v Minister for Justice and Constitutional Development and Another (CCT54/07) [2008] ZACC 3; 2008 (6) BCLR 601 (CC); 2008 (2)
SACR 1 (CC); 2008 (4) SA 458 (CC) (11 March 2008) para 34 (right to freedom and security).
68 Walters paras 26–7.
69 (CCT31/01) [2002] ZACC 22; 2002 (6) SA 642; 2002 (11) BCLR 1117 (9 October 2002).
70 Jordan para 80–1. Sachs and O’Regan JJ later qualified their finding by noting at para 86 that the limiting measure did ‘not reach into the core of privacy,
but only [touched] its penumbra’.
71 S 36(1) of the Constitution.
72 S 36(1) of the Constitution.
73 Woolman and Botha (2013) 34.48.
74 Woolman and Botha (2013) 34.48.
75 The Court has not yet considered the relationship that must exist between the law and the limiting measure, and more specifically what the phrase ‘in
terms of’ means.
76 The Electoral Act 73 of 1998 – which governed the Commission’s operation – made no provision for the disqualification of voters.
77 See Woolman and Botha (2013) 34.34 fn 2.
78 See Woolman and Botha (2013) 34.52 fn 1.
79 See Woolman and Botha (2013) 34.52 fn 2.
80 Larbi-Odam and Others v Member of the Executive Council for Education (North-West Province) and Another (CCT2/97) [1997] ZACC 16; 1997 (12)
BCLR 1655; 1998 (1) SA 745 (26 November 1997) para 27.
81 Du Toit v Minister of Transport (CCT22/04) [2005] ZACC 9; 2005 (11) BCLR 1053 (CC); 2006 (1) SA 297 (CC) (8 September 2005).
82 Sonderup v Tondelli and Another (CCT53/00) [2000] ZACC 26; 2001 (2) BCLR 152; 2001 (1) SA 1171 (4 December 2000).
83 Ingledew v Financial Services Board (CCT6/02) [2003] ZACC 8; 2003 (8) BCLR 825; 2003 (4) SA 584 (CC) (13 May 2003) para 19.
84 (CCT11/96) [1997] ZACC 4; 1997 (6) BCLR 708; 1997 (4) SA 1 (18 April 1997).
85 Hugo para 96.
86 Hugo para 76 fn 7.
87 Hugo para 102. In doing so she relied, inter alia, on the decision of the European Court of Human Rights in Sunday Times v the United Kingdom
(1979–80) 2 EHRR 245 Eur Crt of HR 1979-04-26 para 49 where it noted:
In the Court’s opinion, the following are two of the requirements that flow from the expression “prescribed by law”. First, the law must be
adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given
case. Secondly, a norm cannot be regarded as a “law” unless it is formulated with sufficient precision to enable the citizen to regulate his conduct:
he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a
given action may entail.
88 (CCT35/99) [2000] ZACC 8; 2000 (3) SA 936; 2000 (8) BCLR 837 (7 June 2000) para 47.
89 Woolman and Botha (2013) 34.61.
90 However, Woolman and Botha suggest that the movement should be the other way, in other words, content-specific questions should be considered under
the rubric of law of general application rather than during the justification stage. See Woolman and Botha (2013) 34.62–34.63.
91 S 33(1) of the interim Constitution provided that ‘[t]he rights entrenched in this Chapter may be limited by law of general application, provided that such
limitation (a) shall be permissible only to the extent that it is (i) reasonable; and (ii) justifiable in an open and democratic society based on freedom and
equality; and (b) shall not negate the essential content of the right in question …’ Further, it provided that the limitation of certain entrenched rights must
also be necessary.
92 Paraphrased by Woolman and Botha as ‘first, whether the limitation serves a sufficiently important objective; second, whether the limitation is rationally
connected to the said objective; third, whether the limitation impairs the right as little as possible; and fourth, whether the actual benefits of the limitation
are proportionate to its deleterious consequences for the rights-holder’. See Woolman, S and Botha, H ‘Limitations: Shared constitutional interpretation,
an appropriate normative framework and hard choices’ in Woolman, S and Bishop, M (eds) (2008) Constitutional Conversations 155.
93 There is a difference: the Makwanyane formulation does not separate them but has them considered globally with proportionality as a device. Factors do
not suffice as they are all to be considered under proportionality and often conflate threshold and proportionality questions. We might note a difference
between factors that may be considered and threshold questions that must be met.
94 As discussed further below, the importance of the purpose of the limitation factor is made up of two sub-parts: first, the purpose of the limitation and
second, its importance. The latter is relevant to the limiting measure side of the proportionality scale.
95 The relationship between the limitation and its purpose is similarly complex. At this stage of the justification enquiry, the relationship requires at a
minimum a rational connection between the purpose and the limitation, what courts have labelled the rational connection requirement. Labelling them
as factors is, in a sense, misleading as it gives them an optional feel, whereas unlike other section 36 factors, these threshold questions are imperative to
any limitations enquiry.
96 Iles, K (2007) A fresh look at limitations: Unpacking section 36 South African Journal on Human Rights 23(1):68–92 at 68.
97 We could consider steps one and two – which deal with the internal aspects of the limiting measure – as addressing the question of reasonableness, while
the latter two – which address the relationship between the limiting measure and externalities – address the issue of justifiability.
98 As Sachs J noted in Prince para 155: ‘Limitations analysis under our Constitution is based not on formal or categorical reasoning but on processes of
balancing and proportionality as required by section 36.’
99 These remaining section 36 factors are also, broadly speaking, captured in stages three and four of the Oakes formulation. The third step in Oakes –
whether the limitation impairs the right as little as possible – is similar to the less restrictive means factor in s 36(1)(e), but is perhaps more appropriately
compared to the phrase ‘to the extent that’. The fourth and final step under the Oakes formulation – whether the actual benefits of the limitation are
proportionate to its deleterious consequences for the rights-holder – is proportionality in a limited sense. On this score, section 36 is more comprehensive.
What remains of section 36 factors collectively ask if the legitimate, rationally based measure constitutes a proportionate limitation on the right in
question, taking into account the degree of infringement, the nature of the right, the breadth of the measure and the social good it achieves.
100 With apologies to Iles who used the phrase in respect of his scaled-down approach to s 36. Iles (2007) 68.
101 It was never intended that the section 36 factors would be applied sequentially. Nor, for that matter, are they logically sequenced although the
Constitutional Court has remarkably on a few occasions applied them mechanically (See Magajane).
102 There have been occasions when certain judges have recognised the intuitive difference between the section 36 factors and tried to re-introduce some
structure into the limitation clause by applying ‘reasonable and justifiable’ separately. However, these are few and are between. In his dissenting
judgment in Prince para 81, Ngocbo J held:

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 I accept that the goal of the impugned provisions is to prevent the abuse of dependence-producing drugs and trafficking in those drugs. I also
accept that it is a legitimate goal. The question is whether the means employed to achieve that goal are reasonable. In my view, they are not. The
fundamental reason why they are not is because they are overbroad … On that score they are unreasonable and they fall at the first hurdle. This
renders it unnecessary to consider whether they are justifiable.
Similarly, in Engelbrecht v Road Accident Fund and Another (CCT57/06) [2007] ZACC 1; 2007 (6) SA 96 (CC); 2007 (5) BCLR 457 (CC) (6 March
2007), Kondile AJ employed reasonable and justifiable disjunctively. Having found that the measure ‘[did] not meet the threshold test of reasonableness’
(para 40), he went on to ‘consider whether the regulation is justifiable, on the assumption that it may still be necessary, despite the manifest
unreasonableness referred to above’ (para 41), citing Makwanyane paras 209–10.
103 In S v Bhulwana, S v Gwadiso (CCT12/95, CCT11/95) [1995] ZACC 11; 1996 (1) SA 388; 1995 (12) BCLR 1579 (29 November 1995) para 24, O’Regan
J held:
In my view, section 21(1)(a)(i) of the Act cannot be justified in terms of section 33(1) of the Constitution. Although the need to suppress illicit drug
trafficking is an urgent and pressing one, it is not clear how, if at all, the presumption furthers such an objective. In addition, there appears to be
no logical connection between the fact proved (possession of 115g) and the fact presumed (dealing). On the other hand, the presumption gives rise
to an infringement of the right entrenched in section 25(3)(c), which is a pillar of our system of criminal justice. Section 21(1)(a)(i) of the Act is an
unconstitutional infringement of the right entrenched in section 25(3)(c) which is not reasonable, justifiable or necessary as contemplated by
section 33.
104 As Woolman and Botha note: ‘Prior to the judgment in Makwanyane, it was widely expected that the Court would model its analysis of the
reasonableness and justifiability of fundamental-rights limitations on the approach adopted by the Canadian Supreme Court in R v Oakes. However, the
approach of the Makwanyane Court represents a significant departure from the Oakes test.’ See Woolman and Botha (2008) 155.
105 Makwanyane paras 145–6.
106 Woolman and Botha (2008) 161.
107 Woolman and Botha (2008) 159.
108 Woolman and Botha (2008) 160.
109 Woolman and Botha (2008) 161.
110 Woolman and Botha (2008) 161.
111 S 36(1)(b) of the Constitution.
112 Jordan para 15.
113 See, for example, South African National Defence Union where the aim was to comply with s 200(1) of the 1996 Constitution which provides that the
South African National Defence Force (SANDF) must be structured and managed as a disciplined military force.
114 South African National Defence Union para 11.
115 Bhulwana para 20; Prince para 35.
116 Christian Education paras 39–41.
117 Jaftha v Schoeman and Others, Van Rooyen v Stoltz and Others (CCT74/03) [2004] ZACC 25; 2005 (2) SA 140 (CC); 2005 (1) BCLR 78 (CC)
(8 October 2004) para 37.
118 Magajane para 81.
119 Islamic Unity Convention para 45.
120 Jordan para 15.
121 Moise v Greater Germiston Transitional Local Council (CCT 54/00) [2001] ZACC 21; 2001 (4) SA 491 (CC); 2001 (8) BCLR 765 (CC) (4 July 2001).
122 Johncom Media Investments Limited v M and Others (CCT 08/08) [2009] ZACC 5; 2009 (4) SA 7 (CC); 2009 (8) BCLR 751 (CC) (17 March 2009)
para 29.
123 (CCT11/98) [1998] ZACC 15; 1999 (1) SA 6; 1998 (12) bclr 1517 (9 October 1998) para 37. Although not all were framed as section 36 enquiries, the
same logic has been persuasive in a number of subsequent cases that purged the discriminatory preferences against individuals in homosexual
relationships from our law. See Du Toit and Another v Minister of Welfare and Population Development and Others (CCT40/01) [2002] ZACC 20; 2002
(10) BCLR 1006; 2003 (2) SA 198 (CC) (10 September 2002); Satchwell v President of the Republic of South Africa and Another (CCT48/02) [2003]
ZACC 2; 2003 (4) SA 266 (CC); 2004 (1) BCLR 1 (CC) (17 March 2003); J and Another v Director General, Department of Home Affairs and Others
(CCT46/02) [2003] ZACC 3; 2003 (5) BCLR 463; 2003 (5) SA 621 (CC) (28 March 2003); Minister of Home Affairs and Another v Fourie and Another
(CCT 60/04) [2005] ZACC 19; 2006 (3) BCLR 355 (CC); 2006 (1) SA 524 (CC) (1 December 2005).
124 Makwanyane para 131.
125 If the court is satisfied, then it will turn its attention to considering the limiting measure in more detail, as well as any other less restrictive means of
achieving that end.
126 (CCT27/98) [1999] ZACC 7; 1999 (4) SA 469; 1999 (6) BCLR 615 (26 May 1999).
127 O’Regan J held at para 35 in South African National Defence Union:
There can be no doubt of the constitutional imperative of maintaining a disciplined and effective Defence Force. I am not persuaded, however,
that permitting members of the Permanent Force to join a trade union, no matter how its activities are circumscribed, will undermine the
discipline and efficiency of the Defence Force. Indeed, it may well be that in permitting members to join trade unions and in establishing proper
channels for grievances and complaints, discipline may be enhanced rather than diminished. Whether this proves to be the case will depend, of
course, on a variety of factors including the nature of the grievance procedures established, the permitted activities of trade unions in the Defence
Force, the nature of the grievances themselves and the attitudes and conduct of those involved.
128 (CCT12/95, CCT11/95) [1995] ZACC 11; 1996 (1) SA 388; 1995 (12) BCLR 1579 (29 November 1995) para 24.
129 S v Dodo (CCT 1/01) [2001] ZACC 16; 2001 (3) SA 382 (CC); 2001 (5) BCLR 423 (CC) (5 April 2001); Lesapo v North West Agricultural Bank and
Another (CCT23/99) [1999] ZACC 16; 2000 (1) SA 409; 1999 (12) BCLR 1420 (16 November 1999) para 26.
130 This has not prevented the Constitutional Court from doing so however.
131 Although this factor is sequentially last, it makes little sense to consider it after making the proposed means run the gauntlet of the proportionality enquiry
although the Constitutional Court has done so on occasion.
132 (CCT36/00) [2002] ZACC 1; 2002 (2) SA 794; 2002 (3) BCLR 231 (25 January 2002) para 114.
133 As was noted by O’Regan J in South African National Defence Union para 18, ‘the use of the term “overbreadth” can be confusing, particularly as the
phrase has different connotations in different constitutional contexts’, adding ‘[c]are should therefore be taken when employing the term’.
134 Although the Constitutional Court has equated this with the less restrictive means requirement, for the reasons set out above, this is better placed under
the notion of proportionality.
135 (CCT20/94) [1995] ZACC 6; 1995 (3) SA 632; 1995 (7) BCLR 861 (CC) (9 June 1995) para 62.
136 See Zuma; Bhulwana; S v Mbatha, S v Prinsloo (CCT19/95, CCT35/95) [1996] ZACC 1; 1996 (3) BCLR 293; 1996 (2) SA 464 (9 February 1996); S v
Julies (CCT7/96) [1996] ZACC 14; 1996 (7) BCLR 899; 1996 (4) SA 313 (11 June 1996); S v Coetzee and Others (CCT50/95) [1997] ZACC 2; 1997 (4)
BCLR 437; 1997 (3) SA 527 (6 March 1997); S v Ntsele (CCT25/97) [1997] ZACC 14; 1997 (11) BCLR 1543 (14 October 1997); S v Mello (CCT5/98)
[1998] ZACC 7; 1998 (3) SA 712; 1998 (7) BCLR 908 (28 May 1998); S v Singo (CCT49/01) [2002] ZACC 10; 2002 (4) SA 858; 2002 (8) BCLR 793
(12 June 2002).

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 137 Walters paras 26–7.
138 Notably, under the interim Constitution there was a hierarchy of rights. This is because s 33 listed a number of entrenched rights which were harder to
limit, but this feature was dropped from the final Constitution.
139 Recently, in Johncom para 19, the Constitutional Court categorically stated that the Constitution does not ‘accord hierarchical precedence to any
particular right entrenched in the Bill of Rights over other rights referred to therein’ (our emphasis).
140 National Coalition for Gay and Lesbian Equality para 34.
141 Makwanyane para 144. Although Makwanyane was decided under the interim Constitution, no reference was made to the formal hierarchy of rights by
the Court when it described these rights as ‘the most important of all human rights’.
142 (CCT 49/03) [2004] ZACC 17; 2005 (1) SA 580 (CC); 2005 (1) BCLR 1 (CC) (15 October 2004) para 71.
143 As Moseneke J held in Laugh It Off Promotions CC v South African Breweries International (Finance) BV t/a Sabmark International and Another
(CCT42/04) [2005] ZACC 7; 2006 (1) SA 144 (CC); 2005 (8) BCLR 743 (CC) (27 May 2005) para 47: ‘Plainly, the right to free expression in our
Constitution is neither paramount over other guaranteed rights nor limitless.’ As Kriegler J held in S v Mamabolo (CCT 44/00) [2001] ZACC 17; 2001 (3)
SA 409 (CC); 2001 (5) BCLR 449 (CC) (11 April 2001) para 41: ‘With us it is not a pre-eminent freedom ranking above all others. It is not even an
unqualified right.’
144 See Bernstein para 79.
145 Jordan paras 80 and 86.
146 S 36(1)(c) of the Constitution.
147 See Woolman, S (2007) The amazing, vanishing Bill of Rights South African Law Journal 124(4):762–94 at 762.
148 As an aside, there is some debate over whether some rights have an unlimitable core. In Williams paras 55–6, the Constitutional Court raised but left open
the question whether there are rights that, despite the apparent universality of the limitation clause, cannot be limited. Similarly, in Bernstein para 77,
Ackermann J spoke of ‘a final untouchable sphere of human freedom that is beyond interference from any public authority. So much so that, in regard to
this most intimate core of privacy, no justifiable limitation thereof can take place’.
149 Du Plessis, M and Penfold, G ‘Bill of Rights jurisprudence: Operational provisions of the Bill of Rights’ (2008) Juta’s Annual Survey of South African
Law 50.
150 (CCT25/99) [2000] ZACC 5; 2000 (3) SA 1; 2000 (5) BCLR 491 (14 April 2000) para 32. The same was held to be the case under the interim
Constitution. In Bhulwana; Gwadiso para 18, the Court held: ‘[T]he court places the purpose, effects and importance of the infringing legislation on one
side of the scales and the nature and effect of the infringement caused by the legislation on the other. The more substantial the inroad into fundamental
rights, the more persuasive the grounds of justification must be.’
151 Christian Education para 43. For example, in Islamic Unity Convention paras 42–3, the Constitutional Court considered whether a legislative provision
which prohibited the broadcasting of any material ‘likely to prejudice relations between sections of the population’ was a justifiable limitation on the right
to freedom of expression, among others. In its defence of the provision, the amicus curiae (Jewish Board of Deputies) raised a number of arguments that
invoked interests that were protected by the provision, namely that ‘the interests of human dignity and equality, which are founding values of the
Constitution, and national unity, which is an important and legitimate state objective’.
152 Jordan para 90. Concluding at para 91:
[A]lthough nearly all open and democratic societies condemn commercialised sex, they differ vastly in the way in which they regulate it. These are
matters appropriately left to deliberation by the democratically elected bodies of each country.
153 In National Coalition for Gay and Lesbian Equality para 57, Ackermann J noted:
A number of open and democratic societies have turned their backs on the criminalisation of sodomy in private between adult consenting males,
despite the fact that sexual orientation is not expressly protected in the equality provisions of their constitutions. Their reasons for doing so …
fortify the conclusion which I have reached that the limitation in question in our law regarding such criminalisation cannot be justified under
section 36(1) of the 1996 Constitution.
154 See Prince paras 119–27 where the majority undertook a thorough review of how foreign courts have dealt with the question of allowing special
exemptions for the use of prohibited substances.
155 This is proportionality with a capital ‘P’.
156 These are often employed in concert.
157 Woolman and Botha (2008) 159.
158 De Reuck para 59.
159 De Reuck para 59.
160 De Reuck para 67.
161 De Reuck para 70.
162 Woolman and Botha (2008) 159–60.
163 (CCT36/01) [2002] ZACC 3; 2002 (4) SA 294; 2002 (5) BCLR 433 (11 April 2002).
164 Schedule 1 Clause 2(a) of the Code of Conduct for Broadcasting Services in the Independent Broadcasting Authority Act 153 of 1993.
165 Islamic Unity Convention para 49. The Court also held the provision to be overbroad.
166 Act 18 of 1973.
167 (CCT 26/01) [2001] ZACC 4; 2001 (11) BCLR 1175 (8 October 2001).
168 Potgieter para 7.
169 Islamic Unity Convention para 49.
170 S 126B(4) of the Defence Act 44 of 1957.
171 South African National Defence Union para 11.
172 (CCT19/94, CCT22/94) [1995] ZACC 7; 1995 (10) BCLR 1382; 1995 (4) SA 631 (22 September 1995) paras 13–4.
173 Christian Education para 35. Further, in MEC for Education: Kwazulu-Natal and Others v Pillay (CCT 51/06) [2007] ZACC 21; 2008 (1) SA 474 (CC);
2008 (2) BCLR 99 (CC) (5 October 2007) para 73, Langa CJ noted the following regarding the concept:
At its core is the notion that sometimes the community, whether it is the State, an employer or a school, must take positive measures and possibly
incur additional hardship or expense in order to allow all people to participate and enjoy their rights equally. It ensures that we do not relegate
people to the margins of society because they do not and cannot conform to certain social norms.
174 Christian Education para 32.
175 Prince para 94.
176 As noted above, although the Constitutional Court has equated this with the less restrictive means requirement, for the reasons set out above, this is better
placed under the notion of proportionality.
177 Prince para 139: ‘The use made of cannabis by Rastafari cannot in the circumstances be sanctioned without impairing the state’s ability to enforce its
legislation in the interests of the public at large and to honour its international obligation to do so. The failure to make provision for an exemption in
respect of the possession and use of cannabis by Rastafari is thus reasonable and justifiable under our Constitution.’
178 (CCT 51/06) [2007] ZACC 21; 2008 (1) SA 474 (CC); 2008 (2) BCLR 99 (CC) (5 October 2007).
179 Pillay para 79.

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 180 Pillay para 85.
181 Pillay para 112.
182 Pillay para 162. It was a hollow victory in light of the fact that the student had matriculated by the time judgment was handed down.
183 Prince para 156.
184 Act 4 of 2000.
185 Makwanyane para 102.
186 In Minister of Home Affairs v National Institute for Crime Prevention and the Re-Integration of Offenders (NICRO) and Others (CCT 03/04) [2004]
ZACC 10; 2005 (3) SA 280 (CC); 2004 (5) BCLR 445 (CC) (3 March 2004) para 34, the Court noted: ‘It is not the conventional onus of proof as it is
understood in civil and criminal trials where disputes of fact have to be resolved. It is rather a burden to justify a limitation where that becomes an issue in
a section 36 analysis.’
187 (CCT 54/00) [2001] ZACC 21; 2001 (4) SA 491 (CC); 2001 (8) BCLR 765 (CC) (4 July 2001) para 18.
188 (CCT 03/04) [2004] ZACC 10; 2005 (3) SA 280 (CC); 2004 (5) BCLR 445 (CC) (3 March 2004) para 36.
189 For example, in S v Steyn (CCT19/00) [2000] ZACC 24; 2001 (1) BCLR 52; 2001 (1) SA 1146; 2001 (1) SACR 16 (29 November 2000), the Court found
that the imposition of a leave to appeal requirement on all criminal appeals from the magistrates’ courts violated the right to appeal contained in s 35 of
the Constitution. The Court was then faced with the difficulty that the State had made little to no attempt at a justification argument. In finding that the
measure had failed the justification test, the court held at para 32:
The State has failed to adduce any evidence on the clogging of appeal rolls, the impact of unmeritorious appeals, and the existence of any
resource-related problems or other relevant considerations that could justify the existence of the procedure introduced by ss 309B and 309C.
Clearly it was incumbent on the State to establish factors that justify these limitations of the right of appeal … In the present case the State
produced no such data, nor did it refer to any objectively determinable factors that could be considered in justification of the challenged
provisions.
190 Currie, I and De Waal, J (2005) The Bill of Rights Handbook 5th ed 237–38.
191 (CCT20/02) [2003] ZACC 1; 2003 (3) SA 345; 2003 (4) BCLR 357 (11 March 2003) para 20.
192 (CCT 08/08) [2009] ZACC 5; 2009 (4) SA 7 (CC); 2009 (8) BCLR 751 (CC) (17 March 2009) para 25.
193 (CCT98/08) [2009] ZACC 18; 2009 (2) SACR 477 (CC); 2009 (6) SA 632 (CC); 2009 (11) BCLR 1105 (CC) (15 July 2009) para 63.
194 See chs 12–16.
195 S 9(3) states: ‘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.’
S 9(4) states: ‘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.’
196 (CCT9/97) [1997] ZACC 12; 1997 (11) BCLR 1489; 1998 (1) SA 300 (7 October 1997) para 48. See also Prinsloo v Van der Linde and Another
(CCT4/96) [1997] ZACC 5; 1997 (6) BCLR 759; 1997 (3) SA 1012 (18 April 1997).
197 In Hugo paras 41–3, the Constitutional Court held that:
Each case, therefore, will require a careful and thorough understanding of the impact of the discriminatory action upon the particular people
concerned to determine whether its overall impact is one which furthers the constitutional goal of equality or not. A classification which is unfair
in one context may not necessarily be unfair in a different context … To determine whether that impact was unfair it is necessary to look not only
at the group who has been disadvantaged but at the nature of the power in terms of which the discrimination was effected and also at the nature
of the interests which have been affected by the discrimination.
198 Woolman and Botha (2013) 34.6. Similarly, Currie and De Waal (2005) 237–8:
In the case of the right to equality it is difficult to apply the usual two-stage analysis of a right and its limitation. Indeed, it is far from clear
whether s 36 has any meaningful application to s 9. This is because it is, for instance, difficult to see how any discrimination that has already been
characterized as “unfair” (because it is based on attributes and characteristics which have the potential to impair the fundamental human dignity
of persons as human beings) can ever be acceptable in an open and democratic society based on human dignity, freedom and equality. Similarly,
it is difficult to see how one could justify as “reasonable” a law which differentiates for reasons not rationally related to a legitimate government
purpose, and which is therefore arbitrary.
199 In Bhe para 68 the Constitutional Court concluded that it was unfair discrimination but still applied section 36: ‘The only question that remains to be
considered is whether the discrimination occasioned by section 23 and its regulations is capable of justification in terms of section 36 of our Constitution.’
See also Geldenhuys v National Director of Public Prosecutions and Others (CCT 26/08) [2008] ZACC 21; 2009 (2) SA 310 (CC); 2009 (1) SACR 231
(CC); 2009 (5) BCLR 435 (CC) (26 November 2008). The same approach was adopted under the interim Constitution. See Larbi-Odam para 18.
200 In First National Bank paras 47–70, Ackermann J set out the operation of s 25 in detail.
201 First National Bank para 100.
202 First National Bank para 110: ‘It might be contended that once the deprivation has been adjudged to be arbitrary, no scope remains for justification under
section 36.’
203 First National Bank para 110.
204 First National Bank para 110.
205 The First National Bank para 100 test includes as a consideration: ‘Depending on such interplay between variable means and ends, the nature of the
property in question and the extent of its deprivation, there may be circumstances when sufficient reason is established by, in effect, no more than a mere
rational relationship between means and ends; in others this might only be established by a proportionality evaluation closer to that required by
section 36(1) of the Constitution. (our emphasis)’
206 Woolman and Botha (2008) 149.
207 Pillay para 40.
208 Pillay para 40.
209 Act 3 of 2000.
210 S 4 of the PAJA.
211 Act 66 of 1995.
212 (CCT2/02) [2002] ZACC 27; 2003 (2) BCLR 154; 2003 (3) SA 1 (CC) (6 December 2002) para 14.
213 (CCT 32/07) [2007] ZACC 25; 2008 (2) SA 319 (CC); 2008 (4) BCLR 417 (CC) (6 December 2007) para 76.
214 The relevant part of this provision reads: ‘In order to advance such reconciliation and reconstruction, amnesty shall be granted in respect of acts,
omissions and offences associated with political objectives and committed in the course of the conflicts of the past.’
215 (CCT17/96) [1996] ZACC 16; 1996 (8) BCLR 1015; 1996 (4) SA 672 (25 July 1996) para 38:
In the result I am satisfied that section 20(7) [of the Promotion of National Unity and Reconciliation Act 34 of 1995] is not open to constitutional
challenge on the ground that it invades the right of a victim or his or her dependant to recover damages from a wrongdoer for unlawful acts
perpetrated during the conflicts of the past. If there is any such invasion it is authorised and contemplated by the relevant parts of the epilogue.
216 S 173 of the Constitution states: ‘The Constitutional Court, Supreme Court of Appeal and High Courts have the inherent power to protect and regulate
their own process, and to develop the common law, taking into account the interests of justice.’

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 217 (CCT58/06) [2006] ZACC 15; 2007 (1) SA 523 (CC); 2007 (2) BCLR 167 (CC); [2006] JOL 18339 (CC) (21 September 2006) para 42. The majority
concluded at para 46 that, in the circumstances of the case, the SCA had struck ‘an appropriate relationship of proportionality between the right to
freedom of expression and the court’s obligation to ensure that the proceedings before it are fair’.
218 South African Broadcasting Corporation para 92.
219 South African Broadcasting Corporation para 92.
220 (CCT38/07) [2008] ZACC 6; 2008 (5) SA 31 (CC); 2008 (8) BCLR 771 (CC) (22 May 2008) para 55.
221 Du Plessis and Penfold (2008) 70–1.
222 Independent Newspapers para 83.

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 Constitutional remedies
All rights reserved. May not be reproduced in any form without permission from the publisher, except fair uses permitted under U.S. or applicable copyright law.

11.1 Introduction
11.2 Declarations of invalidity
11.2.1 Introduction
11.2.2 Reading down
11.2.3 Severance
11.2.4 Notional severance
11.2.5 Reading in
11.3 Limiting the retrospective effect of an order of invalidity
11.4 Suspension of an order of invalidity
11.5 A declaration of rights
11.6 An interdict
11.7 Constitutional damages
11.8 Meaningful engagement
Summary

11.1 Introduction
One of the most important characteristics of a judicially enforceable Constitution is that courts are empowered to hand down
orders that address infringements of the Constitution in a manner that assists litigants and those in a similar situation to the
litigants. In those cases where a court has found that law or conduct unjustifiably infringes a fundamental right or does not
promote the values in the Bill of Rights, it therefore has to decide what the most appropriate remedy would be to resolve the
problem. It is important when litigating constitutional matters that litigants know from the outset what remedy they want the court
to provide. Courts are reluctant to grant remedies that are impractical, that would not cure the constitutional defect or that would
tread too drastically on the powers of the other branches of government. Most of this chapter deals with the ways in which the
courts try to limit the impact of declaring law or conduct unconstitutional.
A remedy is defined as ‘a process of legal redress embracing all the legal procedures that a person has to follow to redress the
Copyright 2014. Oxford University Press Southern Africa.

violation of their rights’.1 It can also be understood in a narrower sense of the order made by a court in response to a proven
violation of a person’s rights.2
As these definitions indicate, a remedy is the mechanism used to repair an infringement of rights once a court has interpreted
the right and found the conduct of a government department or a private individual to be lacking. To a significant extent,
therefore, the enforcement of rights and remedies determines what a right means in practice in the lives of the parties. 3
Given its function as a mechanism used to repair an infringement of rights, it is not surprising that an important principle of
the law of constitutional remedies is that successful litigants should obtain the relief they seek to vindicate their rights. In S v
Bhulwana, S v Gwadiso, for example, the Constitutional Court held that ‘[c]entral to a consideration of the interests of justice in a
particular case is that successful litigants should obtain the relief they seek’. 4 When a court determines what the appropriate
remedy in a case will be, it engages in a profoundly practical exercise. It has to consider the consequences of granting or not
granting a particular remedy, both for the litigant who brought the case and for the state and society at large.

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 CRITICAL THINKING

When relief cannot be afforded to successful litigants

Although it is generally accepted that a successful litigant should be afforded the relief he or she seeks,
there are some exceptions to the principle. These exceptions are:
• where the relief cannot properly be tailored by a court 5
• where even though a litigant would otherwise be successful, other interests or matters preclude an
order in his or her favour 6
• where an order would otherwise produce such disorder or administrative difficulties that the interests of
justice served by an order in favour of a successful litigant are outweighed by the social dislocation
such an order might occasion.7

In these circumstances, the broad issue of the administration of justice is taken into account in the
determination of just and equitable remedies. This means that the granting of remedies by a court, while
guided by legal principles, is also based partly on pragmatism and with a keen eye to the potentially
disruptive effects of granting the ‘wrong’ remedy.
These points are clearly illustrated in AllPay Consolidated Investment Holdings (Pty) Ltd and Others v
CEO of the South African Social Security Agency and Others.8
In this case the appellant applied for an order setting aside a multibillion rand tender that had been
granted to a company called Cash Paymaster Services (Pty) Ltd by the South African Social Security
Agency (SASSA). The tender was for the payment of social grants. The appellant, which was one of the
losing bidders, based its application on the grounds that the tender process infringed section 217(1) of the
Constitution because it was unfair. Section 217(1) provides that ‘when an organ of state … contracts for
goods and services, it must do so in accordance with a system which is fair, equitable, transparent,
competitive and cost-effective’.
The Supreme Court of Appeal (SCA) rejected the appellant’s argument and refused to set the tender
aside. In arriving at this conclusion, however, the Court held that even if the tender process had been unfair
it would not have granted an order setting the tender aside. This is because such an order would have
significantly disrupted the payment of social grants and this would have had serious consequences not only
for Cash Paymaster Services itself, which was completely innocent, but also for the millions of poor South
Africans who receive social grants every month. In so far as the recipients of social grants are concerned,
the Court stated that:

We need no evidence to know the immense disruption that would be caused, with dire
consequences to millions of elderly, children and the poor, if this contract were to be summarily
set aside. The prospect of that occurring has prompted the Centre for Child Law to intervene as
amicus curiae in the case. We value the contribution they have made but they had no cause for
concern. It is unthinkable that that should occur.9

The kinds of remedies a court may grant depend on the manner in which the Bill of Rights applies to a dispute. In this respect a
distinction may be drawn between:
• the direct vertical application of the Bill of Rights
• the direct horizontal application of the Bill of Rights
• the indirect vertical and horizontal application of the Bill of Rights.

In those cases where the Bill of Rights applies directly and vertically, sections 38 and 172(1) of the Constitution govern the kinds
of remedies a court may grant. In those cases where the Bill of Rights applies directly and horizontally, sections 8(2) and 8(3) of
the Constitution govern the kinds of remedies a court may grant. In those cases where the Bill of Rights applies indirectly,
section 39(2) of the Constitution governs the kinds of remedies a court may grant.
This distinction is important because sections 38 and 172(1) of the Constitution confer on the courts the power to apply and
develop unique constitutional law remedies such as declarations of invalidity, constitutional damages and meaningful
engagement. Sections 8(2), 8(3) and 39(2) of the Constitution simply provide, however, that the courts must use and develop the
common law and statutory remedies. For the purposes of this chapter, therefore, we are going to focus only on the kinds of
remedies a court may grant when the Bill of Rights applies directly and vertically.

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 When it comes to identifying the kinds of remedies a court may grant when the Bill of Rights applies directly and vertically,
it is helpful to start with section 172(1)(a) of the Constitution. This section provides that ‘[w]hen deciding a constitutional matter
a court must declare that any law or conduct that it is inconsistent with the Constitution is invalid to the extent of its
inconsistency’.
Apart from issuing a declaration of invalidity, section 172(1)(b) of the Constitution also provides that when deciding a
constitutional matter, a court may make any order that is ‘just and equitable’. The Constitutional Court has used this power to
develop a number of mechanisms aimed at regulating the impact of a declaration of invalidity. Among these are severance,
notional severance, reading in, controlling the retrospective effect of a declaration of invalidity and temporarily suspending a
declaration of invalidity.
Unlike severance, notional severance and reading in, the power to control the retrospective effect of a declaration of
invalidity is expressly referred to in section 172(1)(b)(i) and to suspend temporarily a declaration of invalidity is expressly
referred to in section 172(1)(b)(ii) of the Constitution.10
The constitutional remedies referred to in sections 172(1)(a) and (b) of the Constitution must also be read together with
section 38. This section provides that a court may grant ‘appropriate relief, including a declaration of rights’ whenever a right in
the Bill of Rights has been violated or threatened. The Constitutional Court has used this power to develop a number of additional
remedies. Among these are interdicts, constitutional damages and meaningful engagement.

Table 11.1 The remedies available for different breaches of the Constitution

Direct vertical application Sections 38 and 172(1) • Declaration of invalidity

• Declaration of rights
• An interdict
• Constitutional damages
• Meaningful engagement

Direct horizontal application Sections 8(2) and 8(3) • Remedies contained in legislation that
give effect to the Bill of Rights
• Develop the common law to give effect to
the Bill of Rights

Indirect vertical and horizontal Section 39(2) • Common law remedies

application • Customary law remedies

PAUSE FOR REFLECTION

The nature of constitutional remedies

In those cases where a court finds that law or conduct has unjustifiably infringed a right guaranteed in the
Bill of Rights, it must determine what the most appropriate remedy would be. In this respect, it is important
to note that a constitutional remedy is one that focuses not only on the harm to the complainant, but also on
the harm to the constitutional goal of creating a just and fair society. A constitutional remedy must,
therefore, vindicate the Constitution and deter future infringement.
In Fose v Minister of Safety and Security, for example, Kriegler J stated that:

[t]he harm caused by violating the Constitution is a harm to the society as a whole, even where
the direct implications of the violation are highly parochial. The rights violator not only harms
the particular person, but impedes the further realisation of our constitutional promise.11

The constitutional promise will therefore only be upheld if suitable remedies may be invoked in the event of
a breach of the Constitution and obviously if those remedies are subsequently enforced. However, the
challenge with respect to determining an appropriate remedy is that to ensure its effective enforcement, the
remedy must be extremely detailed and specific. If the remedy is not detailed and specific, the violator
could argue that he or she is unable to comply with the order due to its vagueness.
This reaffirms the fact that constitutional remedies are forward-looking, community-orientated and
structural as opposed to backward-looking, individualistic and corrective or retributive. At all times, the
remedy must operate generally to deter future infringements and eradicate inconsistencies between law or
conduct and the Constitution.

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 11.2 Declarations of invalidity

11.2.1 Introduction
As we have seen, section 172(1)(a) of the Constitution states that when deciding a constitutional matter within its power, a court
‘must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of the inconsistency’.
Section 172(1)(a) does not confer a discretion on the courts. Where a law or provision conflicts with the Constitution, a court is
obliged to declare the law or provision invalid to the extent of the inconsistency. 12 The same applies to the conduct of a person or
institution bound by the Constitution.13
The obligation to declare law or conduct that is inconsistent with the Constitution to be invalid flows logically from the fact
that the Constitution is supreme. It is not surprising, therefore, that section 2 of the Constitution expressly provides that ‘[t]his
Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it
must be fulfilled’.
An important consequence of the supremacy of the Constitution is that any law or conduct in conflict with the Constitution is
invalid from the moment that the conflict arises. This is the so-called doctrine of objective invalidity. Although the invalidity
will only have legal effect once a court has confirmed that there is a conflict between the Constitution and legislation or the
actions of an individual, the invalidity does not only arise at the moment when it is affirmed by the court. 14 This means that an
order of invalidity usually has retrospective effect as the court merely confirms that the legislation or the actions of an individual
were invalid from the moment the conflict with the Constitution arose.
The Constitutional Court adopted the doctrine of objective invalidity in its judgment in Ferreira v Levin NO and Others;
Vryenhoek and Others v Powell NO and Others.15 In this case, the Court held as follows:

The Court’s order does not invalidate the law; it merely declares it to be invalid. It is very seldom
patent, and in most cases is disputed, that pre-constitutional laws are inconsistent with the provisions
of the Constitution. It is one of this Court’s functions to determine and pronounce on the invalidity of
laws, including Acts of Parliament.16

This does not detract from the reality that pre-existing laws either remained valid or became invalid upon the provisions of the
Constitution coming into operation. In this sense, laws are objectively valid or invalid depending on whether they are or are not
inconsistent with the Constitution. The fact that a dispute concerning inconsistency may only be decided years afterwards does
not affect the objective nature of the invalidity. The issue of whether a law is invalid or not does not in theory, therefore, depend
on whether, at the moment when the issue is being considered, a particular person’s rights are threatened or infringed by the
offending law or not.17
When a person alleges that a statutory provision is constitutionally invalid, a court must first attempt to interpret the
impugned provision in a way that would render it constitutionally valid. This is called reading down. If this is not possible,
however, the court must declare the law invalid. Instead of simply declaring the law to be completely invalid, however, a court
should attempt to limit the substantive impact of the declaration by severing the offending words or reading in new words to cure
the constitutional defect.18 It may also be necessary to limit the potentially disruptive impact of the order by suspending the order
of invalidity 19 or limiting its retrospective effect. We will deal with each one of these situations in turn.
However, as we consider all the permutations for remedies, it is important to keep in mind that the overarching consideration
taken into account by the courts is the interests of justice and equity. What is required is to vindicate the rights and interests of the
successful litigant and to provide effective relief with the least amount of disruption. In Fose, decided under the interim
Constitution, Ackermann J held:

Given the historical context in which the interim Constitution was adopted and the extensive violation
of fundamental rights which had preceded it, I have no doubt that this Court has a particular duty to
ensure that, within the bounds of the Constitution, effective relief be granted for the infringement of
any of the rights entrenched in it. In our context an appropriate remedy must mean an effective
remedy, for without effective remedies for breach, the values underlying and the rights entrenched in
the Constitution cannot properly be upheld or enhanced.20

Although a court therefore has a general obligation to grant a remedy that is just and equitable to litigants who successfully raise
a constitutional complaint, there are exceptions to this rule. For example, where a court cannot properly tailor the relief while still

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 providing an effective remedy, the court may have to revert to other remedies that are less effective or it may even decline to hear
the appeal.21 In some cases, other interests or matters, for example the best interest of the child over whom litigation is being
conducted, would preclude an order in favour of a successful litigant. 22
Where an order would otherwise produce such disorder or administrative difficulties that the interests of justice served by
such an order in favour of a successful litigant are outweighed by the social dislocation such an order may occasion, the court
may also decline to provide an effective remedy.23 However, there are several ways in which the court can fashion its remedies
to avoid these problems while still providing effective relief. We now turn to the various ways in which the court minimises the
disruptive effect of an order of invalidity while providing effective relief to the successful litigant.

11.2.2 Reading down

Reading down occurs when the words in a specific provision of a statute can be interpreted in different ways: one construction is
constitutional while the other directly violates a constitutional provision. A court faced with this situation must choose the
interpretation that would render the provision constitutionally valid over the unconstitutional interpretation. 24 The Constitutional
Court has explained reading down as follows:

[J]udicial officers must prefer interpretations of legislation that fall within constitutional bounds over
those that do not, provided that such an interpretation can be reasonably ascribed to the section.25

Reading down is therefore not strictly speaking a remedy, but rather a mandatory rule of interpretation used to avoid the
invalidation of a legal provision.
Reading down must therefore be distinguished from reading in which is discussed below. Reading in is applied only once the
court has made a finding of invalidity. With reading down, the finding of invalidity is avoided precisely by reading down the
impugned provision. Reading down can only occur when the impugned provision– on one reading of it – actually conflicts with
the Constitution. The court then prefers another reading to avoid making an order of invalidity. Reading down is not always
possible: the court can only read down a legislative provision if that provision is reasonably capable of the constitutional
interpretation.26 If it is not reasonably capable of that meaning, then the court must sever or read in words to the statute. 27 As the
Constitutional Court explained:

On the one hand, it is the duty of a judicial officer to interpret legislation in conformity with the
Constitution so far as this is reasonably possible. On the other hand, the Legislature is under a duty to
pass legislation that is reasonably clear and precise, enabling citizens and officials to understand what
is expected of them. A balance will often have to be struck as to how this tension is to be resolved when
considering the constitutionality of legislation. There will be occasions when a judicial officer will find
that the legislation, though open to a meaning which would be unconstitutional, is reasonably capable
of being read ‘in conformity with the Constitution’. Such an interpretation should not, however, be
unduly strained.28

Whether the wording of an impugned legislative provision is reasonably capable of a specific interpretation is not always
obvious.29 Thus, the Constitutional Court has provided different interpretations of the word ‘spouse’ in two different contexts.
The Court found in one case that the word ‘spouse’ was incapable of being interpreted as including couples in permanent
same-sex relationships 30 while finding that it was capable of being interpreted as including the partners who had entered into a
Muslim marriage.31

11.2.3 Severance
Section 172(1)(a) requires a court to declare law or conduct invalid to the extent of its inconsistency with the Constitution. 32 A
court therefore does not have to declare invalid a complete section of the legislation if it is possible to cut the bad parts out of the
provision and retain those parts that are not unconstitutional. This is called severance. The court will then strike down a
particular section, subsection or individual words in a subsection of a law but leave the rest of the law intact.
The test for severance is whether ‘the good is not dependent on the bad’ 33 and whether the good can be separated from the
bad. The question to ask is whether it is possible to give effect to the good part of the provision that remains after the severance of

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 the bad part. In other words, after the exercise in severance in which the bad part is declared invalid, will the good part still give
effect to the main objective of the statute? ‘The test has two parts: first, is it possible to sever the invalid provisions and second, if
so, does what remains give effect to the purpose of the legislative scheme?’ 34
It is not always possible to sever the good from the bad while still giving effect to the purpose of an impugned provision. In
such case, the court has to declare the provision as a whole invalid. 35 The court will be circumspect because of concerns about
overstepping the separation of powers. It is usually the legislature – and not the judiciary – that should draft and amend
legislation. Where an offending legislative provision is so overbroad that the blame for the constitutional invalidity of the section
‘cannot be laid at the door of any one word, or group of words, but rather permeates the entire text’, then severance would not be
appropriate.36
In Case and Another v Minister of Safety and Security and Others, Curtis v Minister of Safety and Security and Others ,37 for
example, the Constitutional Court had to consider the constitutionality of a censorship provision enacted during the apartheid
years that was so overbroad that it clearly infringed on the right to freedom of expression. Because the section was so overbroad,
the Court could not sever the good from the bad and had to strike down the provision as a whole. In arriving at this conclusion,
the Court held that if it had to:

apply a blue pencil to each and every noun form and transitive verb that presents overbreadth
problems, we effectively would write a new provision that bears only accidental resemblance to that
enacted by Parliament. If, as appears to be the case, the scheme behind the statute was to impose a
comprehensive scheme of censorship to give effect to a particular moral, cultural and political
world-view, it hardly does justice to the ‘main object’ thereof for this Court to pare it down to prohibit
only that discrete set of sexually-oriented expressions that this Court believes may constitutionally be
restricted. For this Court to attempt that textual surgery would entail it departing fundamentally from
its assigned role under our Constitution. It is trite but true that our role is to review, rather than to
re-draft, legislation. This Court has already had occasion to caution against judicial arrogation of an
essentially legislative function in the guise of severance.38

11.2.4 Notional severance

Notional severance is often confused with reading down and is not an easy remedy to understand. Like severance it allows for
certain parts of the law or provision to be left intact while removing the constitutionally offending parts. Unlike severance,
however, the words are not actually struck out of the impugned section. Instead, the impugned section is given a particular
meaning in the sense that the court instructs those who apply it that the section can apply only to certain cases or in certain
circumstances.
Notional severance differs from reading down in that the words in the impugned legislation cannot reasonably be interpreted
in the manner provided by the court. If words can reasonably be interpreted in a manner that would ensure that the impugned
provision in the legislation is constitutionally valid, the court is required to read down that section to do so. With notional
severance, the court instructs others how to interpret and apply the section even when the words cannot reasonably be said to
encapsulate this instruction.39
Notional severance is usually deployed if other remedies would leave an impermissible gap in the law. Thus, in Islamic Unity
Convention v Independent Broadcasting Authority and Others,40 the Constitutional Court found that a regulation which
prohibited the broadcasting of material that was ‘likely to prejudice relations between sections of the population’ 41 was
overbroad. The regulation thus limited the right to freedom of expression in the Bill of Rights. However, the Court declined to
strike down the relevant portion quoted above because ‘a dangerous gap would result’ and ‘it would be neither just and equitable
nor in the public interest to allow such a gap to exist’. 42
The Constitutional Court therefore decided that notional severance was the only just and equitable remedy available. The
Court wanted to ensure that the relevant part of the impugned regulation would be ‘rendered ineffective in its application to
protected expression, but that a prohibition [would be] left in place to prevent the broadcasting of unprotected expression’ like
hate speech.43 The Court therefore declared the impugned regulation to be inconsistent with section 16 of the Constitution and
invalid to the extent that it prohibits the broadcasting of material that is:

likely to prejudice relations between sections of the population; provided that this order does not apply
to (i) propaganda for war; (ii) incitement of imminent violence; or (iii) advocacy of hatred that is based
on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.44

Finally, it is important to note that a court will not always be able to use notional severance. In National Coalition for Gay and
Lesbian Equality and Others v Minister of Home Affairs and Others , for example, the Constitutional Court pointed out that

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 where:

the invalidity of a statutory provision results from an omission, it is not possible, … to achieve notional
severance by using words such as ‘invalid to the extent that’, or other expressions indicating notional
severance. An omission cannot, notionally, be cured by severance … . The only logical equivalent to
severance, in the case of invalidity caused by omission, is the device of reading in.45

11.2.5 Reading in
When the court employs the remedy of reading in, it literally read words into an unconstitutional legislative provision to cure
that provision of its unconstitutionality. As such, it is exactly the opposite of severance where the court strikes out words from an
unconstitutional provision to cure it of its unconstitutionality. 46 It follows that reading in is used in cases where a legislative
provision is unconstitutional because of the omission of certain words and phrases. 47 However, the courts have also read words
into a provision to narrow the reach of the provision that ‘is unduly invasive of a right’. 48 The court then orders that certain
words or phrases should be read into the provision to render it constitutionally valid.
It is important to note that reading in occurs only after the court has established that a legislative provision is in conflict with
the Constitution and has declared the provision invalid. As such, reading in must be distinguished from reading down which is a
technique used to avoid an order of invalidity altogether. Reading down is a method of statutory interpretation required by
section 39(2) of the Constitution and occurs to avoid a finding of constitutional invalidity. Reading in, however, is a remedy that
is granted by the court after it has declared invalid an impugned provision of legislation to cure the provision of its
unconstitutionality.49
Reading in is an invasive remedy and raises separation of powers concerns.50 However, the Constitutional Court held in
National Coalition for Gay and Lesbian Equality v Minister of Home Affairs that there is in principle no difference between
severance and reading in. In both cases, legislation enacted by parliament ‘is being altered by the order of a court. In the one case
by excision and in the other by addition’.51 The Court has argued that reading in is justified, particularly if we embrace the view
of separation of powers as a structured dialogue between the three branches of government. Reading in does not give the judiciary
the final word on how legislative provisions should be formulated:

It should also be borne in mind that whether the remedy a court grants is one striking down, wholly or
in part; or reading into or extending the text, its choice is not final. Legislatures are able, within
constitutional limits, to amend the remedy, whether by re-enacting equal benefits, further extending
benefits, reducing them, amending them, ‘fine-tuning’ them or abolishing them. Thus they can exercise
final control over the nature and extent of the benefits.52

Before reading words into a statute a court has to ensure, first, that the newly created provision to which words have been added
is consistent with the Constitution and its fundamental values and, second, that the result achieved would interfere with the laws
adopted by the legislature as little as possible. As long as there are still many provisions on the statute books from the
pre-constitutional era, ‘the first consideration will in those cases often weigh more heavily than the second’. 53
However, it will not always be appropriate to read words into an impugned provision to cure its unconstitutionality. As the
Constitutional Court stated in National Coalition for Gay and Lesbian Equality v Minister of Home Affairs:

… it will not be appropriate to read words in, unless in so doing a court can define with sufficient
precision how the statute ought to be extended in order to comply with the Constitution. Moreover,
when reading in (as when severing) a court should endeavour to be as faithful as possible to the
legislative scheme within the constraints of the Constitution. Even where the remedy of reading in is
otherwise justified, it ought not to be granted where it would result in an unsupportable budgetary
intrusion. In determining the scope of the budgetary intrusion, it will be necessary to consider the
relative size of the group which the reading in would add to the group already enjoying the benefits.
Where reading in would, by expanding the group of persons protected, sustain a policy of long
standing or one that is constitutionally encouraged, it should be preferred to one removing the
protection completely.54

Despite the warning to avoid reading in where it would result in an unsupportable budgetary intrusion, the Court has read words
into a statute even where it did have budgetary implications.55

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 CRITICAL THINKING

How radical a constitutional remedy is reading in?

Reading in can appear to be a rather radical remedy. This is because it implicates the separation of powers
doctrine as the court – and not the legislature – in effect rewrites a section of the law by reading words into
the statute. It is usually the legislature and not the judiciary that has to formulate the wording of specific
legal provisions and reading in seems to come close to breaching this principle. It is for this reason that the
criteria set out above must be adhered to.
However, remember that when a court performs a reading in, it does not necessarily provide a final and
definitive determination of the law. The legislature is free to amend the law in which words were read in by
the court. When the legislature does this, it engages in the kind of constitutional dialogue which we
discussed in chapter 2 on the separation of powers. The legislature therefore potentially has the final say
on the exact wording of the impugned provision.
As long as any amendments to the law conform to the Constitution, the court will not be able to
interfere with the determination of the wording made by the legislature. In this sense, reading in is perhaps
less radical than it may at first appear. Lawyers must be aware, however, that reading in may mean that the
provisions of a statute as passed by Parliament do not always accurately reflect its true meaning as the
Constitutional Court may have read words into that statute.

11.3 Limiting the retrospective effect of an order of invalidity

As we have seen, the constitutional supremacy clause automatically makes any unconstitutional law or conduct a nullity from the
moment the inconsistency occurred.56 It is not only the legislation in conflict with the Constitution that is nullified: any actions
performed under the ostensible authority of the legislation will also be invalid. Obviously, the retrospective invalidation of
legislation and any actions taken in good faith under the authority of ostensibly valid legislation could have disruptive results. As
is always the case with the granting of remedies, the question to ask is whether consideration of the interests of justice in a
particular case justifies the granting of an order.
As far as the retrospective effect of orders of invalidity is concerned, we must ask if it is in the interests of justice that
successful litigants obtain the relief they seek:

It is only when the interests of good government outweigh the interests of the individual litigants that
the court will not grant relief to successful litigants … the litigants before the court should not be
singled out for the grant of relief, but relief should be afforded to all people who are in the same
situation as the litigants … [but the court should] be circumspect in exercising [its powers in this
regard].57

For example, when a court invalidates the provisions of a law that authorise the Department of Home Affairs to grant refugee
status to qualifying applicants, the previous granting of refugee status to individual applicants in terms of the now nullified law
would also normally be invalid. Accordingly, the court must consider in every case whether the interests of justice and equity
justify limiting the retrospective effect of a declaration of invalidity.
The Constitutional Court has identified the following five factors as relevant to such a consideration: 58
• The ‘interest of individuals must be weighed against the interest of avoiding dislocation to the administration of justice and
the desirability of a smooth transition from the old to the new’ and the interest of avoiding ‘the dislocation and inconvenience
of undoing transactions, decisions or actions taken under [the] statute’.59
• ‘Central to a consideration of the interests of justice in a particular case is that successful litigants should obtain the relief
they seek. It is only when the interests of good government outweigh the interests of the individual litigants that the Court
will not grant relief to successful litigants. In principle too, the litigants before the Court should not be singled out for the
grant of relief, but relief should be afforded to all people who are in the same situation as the litigants.’ 60
• ‘As a general principle … an order of invalidity should have no effect on cases which have been finalised prior to the date of
the order of invalidity.’ 61
• ‘No one, not criminal defendants, not the judicial system, not society as a whole is benefited by a judgment providing a man
shall tentatively go to jail today, but tomorrow and everyday thereafter his continued incarceration shall be subject to fresh
litigation on issues already resolved.’ 62
• The Constitutional Court has expressed doubt as to whether section 98(6) of the interim Constitution (section 172(1)( b)(i) of

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 the final Constitution) may be used by a court to direct that actions are constitutionally valid despite having been taken in
terms of any proclamation issued under a law declared to be invalid. 63
Usually, where the Constitutional Court decides to vary the retrospective effect of its declaration of invalidity, it does so by
invalidating a statute prospectively in the sense that it may no longer be applied from the date of the order in unresolved matters.
At the same time, its order operates retrospectively in the limited sense that where appeal or review is still pending or the time for
the noting of an appeal has not yet expired, the unconstitutionality of the statute may be raised on appeal. 64

PAUSE FOR REFLECTION

Using a qualified retrospective order

In National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others,65 the
Constitutional Court declared invalid the common law rule that criminalised sodomy between adult men,
even where this occurred consensually and in private. A crucial question that had to be answered was
whether the retrospective effect of this invalidation should be curtailed.
The Court argued that it would be ‘manifestly and grossly unjust and inequitable that such convictions
should not be capable of being set aside as people have been convicted of an offence which – because of
the principle of objective constitutional invalidity – had ceased to exists as an offence when the interim
Constitution came into force on 27 April 1994’.66 However, an unqualified retrospective order may have
had undesirable consequences as the provision was used to convict and punish not only consensual acts
between adults but also acts of male rape. The Constitutional Court therefore found that:

The least disruptive way of giving relief to persons in respect of past convictions for consensual
sodomy is through the established court structures. On the strength of the order of
constitutional invalidity such persons could note an appeal against their convictions for
consensual sodomy, where the period for noting such appeal has not yet expired or, where it
has, could bring an application for condonation of the late noting of an appeal or the late
application for leave to appeal to a court of competent jurisdiction. In this way effective judicial
control can be exercised. Although this might result in cases having to be reopened, it will in all
probability not cause dislocation of the administration of justice of any moment. We should,
however, limit the retrospective effect of the order declaring the offence of sodomy to be
constitutionally invalid to cases of consensual sodomy. In respect of all other cases of sodomy,
the order should be limited to one which takes effect from the date of this judgment. This is
essential, in my view, to prevent persons convicted of sodomy which amount to ‘male rape’ from
having their past convictions set aside. To permit this would be neither just nor equitable. In the
absence of such a limitation confusion might arise, upon a conviction being set aside in such
cases, as to whether a conviction of indecent assault or assault with intent to do grievous bodily
harm, could validly be substituted.67

11.4 Suspension of an order of invalidity

Where a court declares legislation or conduct invalid, this order will normally have immediate effect. However, section 172(1)(b
)(ii) of the Constitution allows a court temporarily to suspend the effect of a declaration of invalidity in the interests of justice and
equity after finding the law to be inconsistent with the Constitution. When the court suspends its order of invalidity, the invalid
legislative provision remains operative on condition that Parliament corrects the defect within a prescribed period of time. If the
matter is rectified, the declaration falls away and what was done in terms of the law is given validity. If not, the declaration of
invalidity takes place at the expiry of the prescribed period and the normal consequences attaching to such a declaration ensue. 68
A suspension of an order of invalidity is used sparingly as it will have the effect of not providing immediate and effective
relief to the successful litigant. Where the invalidity arises in a complex case in which ‘multifarious and nuanced legislative
responses … might be available to the legislature’ to resolve the problem, the court may suspend its order of invalidity and
provide Parliament with a grace period to resolve the problem.69 A suspension of an order of invalidity is also appropriate where
a lacuna or gap would be left in the law if the impugned provision is declared invalid. As the Constitutional Court explained in J
and Another v Director General, Department of Home Affairs and Others :

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 The suspension of an order is appropriate in cases where the striking down of a statute would, in the
absence of a suspension order, leave a lacuna. In such cases, the Court must consider, on the one hand,
the interests of the successful litigant in obtaining immediate constitutional relief and, on the other, the
potential disruption of the administration of justice that would be caused by the lacuna. If the Court is
persuaded upon a consideration of these conflicting concerns that it is appropriate to suspend the
order made, it will do so in order to afford the legislature an opportunity ‘to correct the defect’. It will
also seek to tailor relief in the interim to provide temporary constitutional relief to successful litigants.
70

The Court may also suspend an order of invalidity where the defect in the impugned legislation is purely procedural, for example
in cases where Parliament has failed to facilitate adequate public involvement in the law-making process. 71 The time provided to
Parliament to resolve the problem depends on the ‘complexity and variety of the statutory and policy alternatives’ available to
Parliament.72 Sometimes, proper legislation passed by Parliament is the only appropriate manner with which to deal with a
constitutional defect in legislation.73 It would also not be appropriate to invalidate legislation where such an order would be
‘chaotic and prejudicial to the interests of justice and good government’. 74 The Court is more likely to exercise its powers to
suspend the invalidity of pre-constitutional legislation than post-constitutional legislation. 75 When it declares invalid
post-constitutional legislation, it would only suspend the order ‘where the result of invalidating everything done under such
legislation is disproportional to the harm which would result from giving the legislation temporary validity’. 76
A court looks at the precise circumstances of each case to determine whether the order of invalidity should be suspended. 77
The court does not normally suspend an order of invalidity if the provisions are so ‘clearly inconsistent’ with a fundamental right
and ‘manifestly indefensible’ under the general limitation clause that there is ‘no warrant for its retention, not even temporarily’.
78 This means that there have to be persuasive reasons to exercise the power to suspend before a court will do so. 79
In cases where the legislation limits a right of heightened importance – such as the right to non-discrimination guaranteed in
section 9 of the Constitution – the Constitutional Court has found that:

those subject to the impugned provisions should not be made to wait much longer to be relieved of the
burden of inequality and unfair discrimination … [as] … that would mean that the benefits of the
Constitution would continue to be withheld from those who have been deprived of them for so long. 80

This places a burden on a litigant seeking a suspension of an order of invalidity (usually the State) to persuade the court to
exercise its powers in terms of section 172(1)(b)(ii) of the Constitution in the interests of justice and equity. 81 It is important that
all relevant information is placed before the Court when it is asked to suspend an order of invalidity. The information must relate
to the consequences of an order of invalidity and the time that will be needed to remedy the defect in the legislation. 82
A suspension of an order of invalidity can be seen as a technique used by the Constitutional Court to negotiate separation of
powers tensions that may arise from invalidating legislation. As such, it can be seen as part of the constitutional dialogue between
the three branches of government mentioned above. A consequence of this is that the power of Parliament is only partly
circumscribed by the suspended order of invalidity. As long as the legislature amends the law to bring it into harmony with the
Constitution, it has a wide discretion to choose the means to achieve this goal.
While Parliament (or any other legislature) may choose to correct the defect in the invalidated law within the period
specified, it need not do so. If it chooses not to correct the defect in the period provided, the suspension will fall away and the law
or provision will become invalid. The legislature may also take other steps to address the effect of the declaration of invalidity. In
the latter two situations, the declaration of invalidity will come into effect on the specified date. 83

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 CRITICAL THINKING

Suspending an order of invalidity

In Minister of Home Affairs and Another v Fourie and Another,84 the Constitutional Court declared invalid
the common law definition of marriage (as well as an omission in the Marriage Act 85) because it did not
permit same-sex couples to enjoy the status and the benefits it accords to heterosexual couples. However,
the majority (per Sachs J) suspended this order for 12 months from the date of the judgment to allow
Parliament to correct the defects. The Court ruled further that if Parliament did not correct the defects within
this period, the order of invalidity would take effect.86 The majority in effect argued that for pragmatic
political reasons relating to the acceptance and legitimacy of the ruling, a suspension would be required to
allow Parliament to resolve the problem:

This is a matter involving status that requires a remedy that is secure. To achieve security it
needs to be firmly located within the broad context of an extended search for emancipation of a
section of society that has known protracted and bitter oppression. The circumstances of the
present matter call out for enduring and stable legislative appreciation. A temporary remedial
measure would be far less likely to achieve the enjoyment of equality as promised by the
Constitution than would lasting legislative action compliant with the Constitution. The claim by
the applicants in Fourie of the right to get married should, in my view, be seen as part of a
comprehensive wish to be able to live openly and freely as lesbian women emancipated from all
the legal taboos that historically have kept them from enjoying life in the mainstream of society.
The right to celebrate their union accordingly signifies far more than a right to enter into a legal
arrangement with many attendant and significant consequences, important though they may be.
It represents a major symbolical milestone in their long walk to equality and dignity. The greater
and more secure the institutional imprimatur for their union, the more solidly will it and other
such unions be rescued from legal oblivion, and the more tranquil and enduring will such unions
ultimately turn out to be.87

In a minority judgment O’Regan J disagreed, pointing out that the ‘effect of this order is that gay and lesbian
couples will not be permitted to marry during this period’.88 O’Regan J stated that this case concerned the
development of the common law by the courts, a responsibility that lies, in the first place, with the courts
and not with the legislature.89 This is why the Court ought to have developed the common law with
immediate effect to permit gays and lesbians to be married by civil marriage officers.90 The doctrine of the
separation of powers cannot be used ‘to avoid the obligation of a court to provide appropriate relief that is
just and equitable to litigants who successfully raise a constitutional complaint’.91 According to O’Regan J,
the power and duty to protect constitutional rights is conferred on the courts. This means the:

courts should not shrink from that duty. The legitimacy of an order made by the Court does not
flow from the status of the institution itself, but from the fact that it gives effect to the provisions
of our Constitution. Time and again, there will be those in our broader community who do not
wish to see constitutional rights protected, but that can never be a reason for a court not to
protect those rights.92

Given the Constitutional Court’s previous judgments in which it held that where the right implicated is of
specific importance, a suspension would not ordinarily be granted, and in the absence of technical
impediments to an immediate invalidation of the impugned provisions, it appears as if O’Regan J’s view is
more consistent with precedent.

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 11.5 A declaration of rights
Section 38 of the Constitution provides that when a right in the Bill of Rights has been infringed or threatened, a competent court
may grant appropriate relief, including a declaration of rights. In Rail Commuters Action Group v Transnet Ltd t/a Metrorail,
the Constitutional Court explained that ‘declaratory relief is of particular value in a constitutional democracy which enables
courts to declare the law, on the one hand, but leave to the other arms of government, the executive and the legislature, the
decision as to how best the law, once stated, should be observed’.93
It is important to distinguish between a declaration of rights and a declaration of invalidity. This is because a declaration of
rights is aimed only at resolving a dispute between specific parties and may be given even when no law or conduct has been
found to be inconsistent with the Bill of Rights.94 In addition, a declaration of rights, unlike a declaration of invalidity, is also a
discretionary remedy in the sense that the claim lodged by an interested party for such an order does not in itself oblige the court
handling the matter to respond to the question which it poses. 95
Declaratory orders are routinely used alongside structural interdicts whereby a court declares the aspects in which the state
has fallen short of its constitutional obligations and then requires compliance by way of a structural interdict. This enables the
court to assert its role in performing the ‘watchdog’ function by proclaiming what a right in the Constitution entails and how it
should be interpreted. It then further allows the court to retain jurisdiction over the case through the structural interdict.

11.6 An interdict
Interdicts are usually directed at future events and compel a defendant (or any party to the litigation) to perform a task or to
refrain from undertaking a specific course of action. Apart from mandatory interdicts and prohibitory interdicts, the
Constitutional Court has held that a structural interdict may be an appropriate remedy when a right in the Bill of Rights has been
unjustifiably infringed.
A structural interdict is also referred to as a supervisory interdict. A structural interdict is a type of injunction which
‘requires the government to report back to the court at regular intervals about the steps taken to comply with the Constitution’. 96
Essentially, this interdict compels the violator to rectify the breach of fundament rights under court supervision. This is usually
achieved by requiring the official to report to the court on his or her efforts to comply with the order. This allows the courts to
exercise a monitoring role over the administration of the order in cases that affect individual rights. Structural interdicts are often
used when the courts are faced with any form of recalcitrant or incompetent official behaviour.
As the points set out above indicate, a structural interdict is an invasive remedy. This is because it allows the courts to inspect
proposed plans and to ensure that they are not constitutionally suspect.97 Despite its invasive nature, this remedy is used to avoid
violating the separation of powers doctrine since the courts defer to the authority and expertise of the executive arm of
government by allowing the relevant government department to formulate plans to give effect to the Constitution.
The Constitutional Court initially seldom issued structural interdicts. However, as we shall see when we discuss social and
economic rights enforcement in chapter 16, the Court has issued several supervision and engagement orders in eviction cases. 98
The first time the Court issued a structural interdict was in the case of August and Another v Electoral Commission and Others 99
where the Electoral Commission was found to have violated prisoners’ rights to vote. Recognising that it is the Electoral
Commission’s mandate to regulate the election process according to the applicable legislation, the Court directed the Electoral
Commission to rectify the violation of constitutional rights. The approach taken by the Court was to require the Electoral
Commission to furnish it with an affidavit within two weeks setting out exactly how the Commission would comply with the
order.
The Constitutional Court issued its second structural interdict in the case of Sibiya and Others v Director of Public
Prosecutions: Johannesburg High Court and Others (Sibiya I) .100 This case arose as a result of the 1995 case of S v
Makwanyane and Another 101 where the Court declared the death penalty to be inconsistent with the interim Constitution and
ordered the substitution of lawful punishments for prisoners who had been sentenced to death. However, a decade later, finding
that ‘[t]he process of the substitution of sentences has taken far too long’, 102 the Court issued a structural interdict so that it could
supervise the sentence-conversion process. The order required government to report by not later than 15 August 2005 to the Court
on the enforcement of the order.103 Once a comprehensive plan had been formulated, a final judgment was handed down and the
resolution of the matter was achieved.104 This was notwithstanding that government had to make an application for an extension
of the timeframe for compliance with the order.105
In Residents of Joe Slovo Community, Western Cape v Thubelisha Homes and Others ,106 the Constitutional Court granted an

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 order for the eviction of residents of the Joe Slovo Informal Settlement in Cape Town. However, the Court required the applicants
and the respondents, through their respective representatives, to engage meaningfully with each other with a view to reaching
agreement on how the eviction should occur. The Court further directed the parties to report back to the Court on the
implementation of its order as well as the allocation of permanent housing opportunities to those affected by the order. It further
instructed that in the event of the order not being complied with by any party, or in the event of unforeseen difficulties, any party
would have the right to approach the Court for an amendment, supplementation or variation of its order.
Structural interdicts usually take the form of a series of steps in pursuit of achieving the mutually acceptable and achievable
implementation of a plan which provides for constitutional entitlements. The steps are as follows:
• The starting point is a declaration by the court that the conduct is not consonant with the provisions and duties stipulated in
the Constitution.
• Thereafter, the court prescribes the conduct which is expected to bring the deficient conduct into conformity with the
constitutional imperatives.
• The process is not a dictatorial, top-down process. The court invites the government department that has failed to perform its
constitutional obligations to submit a comprehensive plan. This plan must rectify the incompatibility between the
constitutional provisions and the conduct (or omission) that is being complained of.
• The responsible government department draws up the plan, taking cognisance of the department’s budgetary and human
resource constraints. The department must also take into account the sustainability of the plan in terms of the timeframe set
for its implementation. In this regard, the department should set a series of achievable deadlines so that progress can
consistently be monitored.
• Once the department has drawn up the plan, it presents the plan to the court. At this stage, the court invites comment by the
plaintiff and any other interested parties to the litigation.
• The court then incorporates any constructive comments into the plan. The plan then becomes a binding order of court which
the department must implement strictly in accordance with the deadlines and achievable targets set out in the plan.

CRITICAL THINKING

When the state fails to obey court orders

If the responsible government department does not draw up and submit a plan to the court, the court will
reluctantly draw up its own plan which the government department will then have to implement. In such a
case, the court may rely on the assistance of any other parties to the litigation who express an interest in
assisting the court to craft the plan. The consequence of this is that the judiciary then appears to intrude
into the domain of the executive in the formulation of policy choices and the methods of implementation.
However, this argument can be countered with reference to the rule of law which is a founding value of
our constitutional democracy. In South Africa, many people do not have the financial or other resources to
approach a court to have legal duties owed to them enforced. When an order is handed down by a court,
the rule of law is seriously threatened if the state fails to obey court orders.
The provisions of section 34, read with sections 165 and 173 of the Constitution, place positive duties
on the state to ensure respect for the rule of law and adherence to the law by providing citizens with
effective mechanisms for resolving disputes between themselves or between themselves and the state.
Failure to comply with court orders then represents an attack on the effectiveness of the legal system and
the right to have legal duties enforced by the state.

Apart from drawing up and submitting a comprehensive plan to the court, the responsible government department must also
provide continuous feedback to the court on the status and success of the implementation of the plan according to the deadlines
contained in the plan. In some instances, independent bodies, such as the South African Human Rights Commission, may be
appointed to monitor the implementation of the plan.
When the matter is heard in court, the defendant, the monitoring body and other interested parties are entitled to address the
court on the progress achieved in implementing the plan. The nature of a structural interdict entails that if the plan is seen to be
deficient or unachievable, it may be amended and the amended plan then becomes the order of court. This is repeated until such
time as the constitutional norms have been achieved.

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 11.7 Constitutional damages
Damages is a concept that is usually associated with private law relationships. Damages refers to a sum of money paid to a
person to compensate him or her for harm that was caused to him or her either by the state or by another individual. Damages can
also be paid to mitigate future loss suffered as a result of the wrongful conduct of an individual or the state.
The private law concept of damages is not designed to vindicate the values underlying the Constitution nor to deter and
prevent future infringements. However, the Constitutional Court has accepted that where these objects can be achieved through
the payment of compensation, it may be appropriate to issue an order awarding the complainant constitutional damages.
The Constitutional Court discussed the concept of constitutional damages for the first time in its judgment in Fose. In this
case the Constitutional Court held as follows:
• Where the violation of human rights entails the commission of a delict, the award of constitutional damages in addition to
damages available under the common law will seldom be available. This is because it would amount to awarding punitive
damages against the state.
• Even when delictual damages are not available, constitutional damages will not always be granted. 107

In Fose, Fose alleged that he had been assaulted and tortured by the police and claimed R130 000 in delictual damages for pain
and suffering, loss of amenities of life and infringement of his dignity. In addition, he also claimed R200 000 in constitutional
damages for the infringement of his constitutional rights to human dignity, freedom, security of the person and privacy.
In so far as his claim for constitutional damages was concerned, Fose argued that a private law action for damages seeks to
provide compensation for harm caused to one private party by the wrongful action of another private party. However, a
constitutional action for damages seeks to:
• vindicate the fundamental right itself
• deter and prevent future infringements of the fundamental right by organs of state
• punish those organs of state whose officials have infringed fundamental rights in an egregious manner. 108

The Constitutional Court dismissed Fose’s claim for constitutional damages on the grounds that he had already been awarded
delictual damages and a person cannot benefit twice from the harm he or she has suffered.
In arriving at this decision, the Constitutional Court began by stating that there is:

no reason in principle why appropriate relief should not include an award of damages, where such an
award is necessary to protect and enforce [the rights in the Bill of Rights]. Such awards are made to
compensate persons who have suffered loss as a result of the breach of a statutory right if, on a proper
construction of the statute in question, it was the legislature’s intention that such damages should be
payable, and it would be strange if damages could not be claimed for, at least, loss occasioned by the
breach of a right vested in the claimant by the supreme law.109

After finding that appropriate relief does include an award of constitutional damages where such an award is required to enforce
or protect the rights in the Bill of Rights, the Constitutional Court turned to consider whether constitutional damages could also
be claimed to deter or punish organs of state whose officials have infringed fundamental rights.
In this respect, the Constitutional Court began by stating that even though punitive constitutional damages are awarded in
some comparative foreign jurisdictions such as the United States, serious criticisms have been levelled against this practice.
These criticisms include the following:
• There is no evidence that punitive damages do have a deterrent effect.
• Punitive damages provide the plaintiff with an unjustifiable windfall.
• Punitive damages exact punishment without the protection which the criminal law affords.
• In those cases where punitive damages are awarded against the government, the cost involved is almost inevitably shifted to
the public at large.110

Having set out these principles, the Constitutional Court went on to apply them to the facts. In this respect, the Court first dealt
with Fose’s claim for damages to vindicate his constitutional rights and then with his claim for damages to deter or punish the
police for infringing his constitutional rights.
In so far as the claim for vindicatory damages was concerned, the Constitutional Court began by stating that in the case at
hand it was not necessary to award constitutional damages to vindicate the plaintiff’s constitutional rights. This was because if
Fose succeeded in proving that he had been assaulted by the police, he would be awarded substantial delictual damages and that
would be enough to vindicate his constitutional rights.111
In addition, the Constitutional Court stated further, it is doubtful whether, even in the case of the infringement of a right
which does not cause damage to a plaintiff, an award of constitutional damages to vindicate the right would be appropriate. This

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 is because a declaratory order combined with a suitable order as to costs would be a sufficiently appropriate remedy to vindicate a
plaintiff’s rights even in the absence of an award of damages.112
In so far as the claim for punitive damages was concerned, the Constitutional Court began by stating that it was not
persuaded that awarding punitive damages against the government would effectively deter the police from torturing suspects.
This is because nothing in our own recent history, where substantial awards for death or brutality in detention were awarded or
agreed to, suggested that they had any preventative effect.113
In addition, the Constitutional Court stated further, in a country where there is a great demand on scarce public resources, it
would be inappropriate to use them to pay punitive damages to plaintiffs who had already been compensated by delictual
damages for the injuries caused to them. The funds could be better employed in structural and systemic ways to eliminate or
substantially reduce the causes of infringements.114
Having made these points, the Constitutional Court went on to dismiss the claim for constitutional damages.
Unlike in the case of Fose, constitutional damages were awarded in the case of President of the Republic of South Africa and
Another v Modderklip Boerdery (Pty) Ltd.115 This case concerned the positive obligations on the state to assist Modderklip to
remove what had become approximately 80 000 trespassers from a portion of its farm.
After a High Court interdict for the eviction of the occupiers had not been complied with, a writ of execution was issued at
Modderklip’s instance. The sheriff of Benoni insisted on a deposit of R1,8 million to secure the costs of the eviction occasioned
by the need to engage the services of a security firm to facilitate the removals. Even the police would not help Modderklip except
to secure the peace during the eviction.
Having no other alternative, Modderklip approached the High Court. The High Court found that Modderklip’s section 25
rights to property had been violated by the trespassing of the occupiers. In addition, the state had failed to realise its obligations
under section 26 of the Constitution to seek, within its available resources, to achieve the realisation of the occupiers’ right of
access to adequate housing and land.
On appeal, the SCA agreed with the High Court’s judgment and expended its energies on determining an appropriate remedy.
In the circumstances, the SCA awarded compensation to the owner of the illegally occupied property. It determined the amount of
such compensation with reference to section 12 of the Expropriation Act.116
The Constitutional Court endorsed the SCA’s judgment and held that the SCA had referred to a number of advantages which
other forms of relief did not have. The award compensated Modderklip for the unlawful occupation of its property in violation of
its rights. It also ensured that the unlawful occupiers would continue to have accommodation until suitable alternatives were
found and it relieved the state of the urgent task of having to find such alternatives. 117
The award for damages was further endorsed by the fact that the Constitutional Court was acutely aware of the fact that
Modderklip had been forced into a dead-end by the unlawful occupation of its land and the recalcitrant behaviour of the state in
assisting it to enforce the interdict to have the settlers removed. However, the Modderklip case is certainly not authority for the
proposition that constitutional damages are always available.118
Although the cases where constitutional damages have been granted are not numerous, Currie and De Waal argue that such
damages are necessary for at least two reasons:
• First, constitutional damages may be awarded where any other form of relief will not vindicate the right or deter future
infringements. This may occur especially when the victim has missed a unique opportunity to exercise a fundamental right,
such as voting, attending a religious ceremony or participating in an organised protest.
• Second, constitutional damages may be necessary to encourage victims to come forward and report on human rights
violation, thus vindicating the Constitution.119

CRITICAL THINKING

Social assistance grants as a form of constitutional damages

Currie and De Waal argue that various judgments in which the courts have awarded social assistance
grants to litigants may be seen as a form of constitutional damages. Referring to a slew of cases that arose
in the mid-1990s, in which many grant holders successfully challenged the unlawfulness of the termination
of their grants, but the reinstatement of grants or the payment of moneys owed was delayed, the authors
argue as follows:

Faced with increasing numbers of applicants for welfare grants, the [provincial governments]
soon started to fall behind with the processing of applications. This generated a second phase
of litigation.120

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 Rather than granting the usual mandamus remedy where there was a delay, the courts started to substitute
their own decisions for those of government on a wide scale. If a decision was not made within a
reasonable time, the High Courts were prepared, as a form of ‘constitutional relief’, to approve social
assistance grants themselves, in addition ordering government to make available back-payment and
interest. To an extent, the courts became an alternative forum for the processing of social grants.

11.8 Meaningful engagement

Some remedies are aimed at directing role players to act in a manner more in accordance with the notion of participatory
democracy. Courts can use these remedies to help deepen democracy and empower citizens who can easily feel alienated from the
bureaucratic state. One such a remedy is the remedy of meaningful engagement. This remedy is similar in effect to the structural
interdict.121 The Constitutional Court granted this remedy for the first time in its judgment in Occupiers of 51 Olivia Road,
Berea Township and 197 Main Street Johannesburg v City of Johannesburg and Others .122
In this case the Constitutional Court held that it would be unconstitutional for a municipality to evict unlawful occupiers
without first engaging with them, individually and collectively, in a meaningful manner. In arriving at this decision, the
Constitutional Court stated that the City:

must respect, protect, promote and fulfil the rights in the Bill of Rights. The most important of these
rights for present purposes is the right to human dignity and the right to life. In light of these
constitutional provisions a municipality that ejects people from their homes without first meaningfully
engaging with them acts in a manner that is broadly at odds with the spirit and purpose of the
constitutional obligations set out in this paragraph taken together.123

Apart from the constitutional provisions referred to above, the Constitutional Court also stated that the duty to engage
meaningfully with people who may be rendered homeless after being evicted is squarely grounded in section 26(2) of the
Constitution. This is because section 26(2) imposes an obligation on every sphere of government to take reasonable legislative
and other measures, within its available resources, to achieve the progressive realisation of the right of access to adequate
housing.124
The test for reasonableness, the Constitutional Court went on to state, does not only impose an obligation on the City to
engage meaningfully with potentially homeless persons, but also to respond to the concerns they raise during that process in a
reasonable manner. This means that in some cases it may be reasonable to make permanent housing available and, in others, to
provide no housing at all. The possibilities between these extremes are almost endless. As long as the response of the
municipality in the engagement process is reasonable, however, that response complies with section 26(2).125
In the same judgment, the Constitutional Court also stated that engagement is a two-way process in which the City and those
about to become homeless would talk to each other meaningfully in order to achieve certain objectives. While there is no closed
list of objectives, the Court explained further, the sorts of objectives that ought to be achieved when a city wishes to evict people
who may be rendered homeless as a result of the eviction are as follows:

(a) what the consequences of the eviction might be;

(b) whether the city could help in alleviating those dire consequences;
(c) whether it was possible to render the buildings concerned relatively safe and conducive to health
for an interim period;
(d) whether the city had any obligations to the occupiers in the prevailing circumstances; and
(e) when and how the city could or would fulfil these obligations’.126

The order granted by the Constitutional Court thus provided as follows:

1. The City of Johannesburg and the applicants are required to engage with each other
meaningfully and as soon as it is possible for them to do so in an effort to resolve the differences
and difficulties aired in this application in the light of the values of the Constitution, the
constitutional and statutory duties of the municipality and the rights and duties of citizens
concerned.
2. The City of Johannesburg and the applicants must also engage with each other in an effort to
alleviate the plight of the applicants who live in the two buildings concerned in this application
by making the buildings safe and as conducive to health as is reasonably practicable.
3. The City of Johannesburg and the applicants must file affidavits before this Court on or before

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 3 October 2007 reporting on the results of the engagement between the parties as at
27 September 2007.127

The agreement reached between the parties contained interim measures to secure the safety of the building and to provide the
occupiers with alternative accommodation in the inner City of Johannesburg. These interim measures included the provision, at
the City’s expense, of toilets, potable water, waste disposal services, fire extinguishers and a once-off operation to clean and
sanitise the properties. The City and the occupiers also agreed that the alternative accommodation would consist of security
against eviction, access to sanitation, access to potable water, and access to electricity for heating, lighting and cooking.
Agreement was furthermore reached that the City would decide on the nature and location of permanent housing in consultation
with the occupiers.

CRITICAL THINKING

Meaningful engagement as a means of enhancing participatory democracy

It has been convincingly argued that the remedy of meaningful engagement is ‘a progressive and effective
remedy capable of promoting social transformation and enhancing participatory democracy and
transparency and accountability’.128
According to Chenwi, meaningful engagement recognises the core importance of fostering
participation, especially by those confronted with the prospect of eviction. She states that ‘the remedy fits
into the Constitutional Court’s vision of the kind of democracy the South African Constitution establishes’.
129
Support for this view is the well known case of Doctors for Life International v The Speaker of the
National Assembly and Others 130 where the Court held that our constitutional democracy contemplates
both representative as well as participatory democracy.

SUMMARY

In every case of a prima facie violation (or threatened violation) of rights or the perceived contravention of the Constitution, one
of the first questions the legal representative will ask is, ‘What remedy do we want in order to vindicate the clients’ right?’ The
remedy being sought will usually inform how the case is structured and argued. This is in accordance with the Latin maxim ubi
ius ubi remedium – where there is a right, there is a remedy. This is the defining principle of the South African legal order with
respect to the enforcement of the Constitution. It would be nonsensical for the Constitution to prescribe a comprehensive set of
rights if there were no mechanisms created to uphold those rights. Therefore, with regard to the effectiveness of courts in
awarding appropriate and enforceable remedies, it is appropriate to quote the late Chief Justice Mahomed when he said:

Unlike Parliament or the executive, the courts do not have the power of the purse or the army or the
police to execute their will. The highest courts in constitutional democracies do not have a single solider
at their command. They would be impotent to protect the Constitution if the agencies of the state that
control the massive financial and physical resources refuse to command those resources to enforce the
orders of the courts. The courts could easily be reduced to paper tigers with ferocious capacity to snarl
and to roar but no teeth with which to bite and no sinews to execute their judgments which may be
reduced to pieces of sterile scholarship, toothless wisdom or pious poetry. As already happened many
times, the potentially awesome theoretical power of the judiciary in the Constitution could, in those
circumstances, implode into nothingness. Judges in such circumstances would visibly be demeaned.
But much, much worse, human rights could irreversibly be impaired and civilisation itself dangerously
imperilled.131

Invalidating legislation can have drastic consequences. Courts use various techniques to limit the drastic consequences of orders
of invalidity, including suspending an order of invalidity to give Parliament a chance to remedy the defect, severing the bad parts
of a provision from the good without invalidating an entire section and reading words into the statute to render it constitutionally
valid.

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 1 Zakrzewski, R (2005) Remedies Reclassified 13.
2 Mbazira, C (2008) You are the ‘weakest link’ in realizing socio-economic rights: Goodbye – Strategies for effective implementation of court orders in
South Africa, Socio-economic Rights Project, Community Law Centre, available at http://www.escr-net.org/usr_doc/Mbazira,_Weakest_Link_in
_Realising_Socio-Economic_Rights.pdf.
3 Klare, K (2008) Legal subsidiarity and constitutional rights: A reply to AJ van der Walt Constitutional Court Review 1:129–40 at 140.
4 (CCT12/95, CCT11/95) [1995] ZACC 11; 1996 (1) SA 388; 1995 (12) BCLR 1579 (29 November 1995) para 32.
5 See Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v Minister of Home Affairs and Others; Thomas and Another v
Minister of Home Affairs and Others (CCT35/99) [2000] ZACC 8; 2000 (3) SA 936; 2000 (8) BCLR 837 (7 June 2000) paras 63–4; Fraser v Naude and
Another (Fraser II) (CCT14/98) [1998] ZACC 13; 1999 (1) SA 1; 1998 (11) BCLR 1357 (23 September 1998) paras 9–10.
6 Fraser (II) paras 9–10.
7 Tsotetsi v Mutual and Federal Insurance Company Ltd (CCT16/95) [1996] ZACC 19; 1996 (11) BCLR 1439; 1997 (1) SA 585 (12 September 1996)
para 10.
8 (678/12) [2013] ZASCA 29; [2013] 2 All SA 501 (SCA); 2013 (4) SA 557 (SCA) (27 March 2013).
9 AllPay para 99.
10 S 172(1)(b)(i) provides that ‘[w]hen deciding a constitutional matter within its power a court may make any order that is just and equitable, including an
order limiting the retrospective effect of the declaration of invalidity’. S 172(1)(b)(ii) provides that ‘[w]hen deciding a constitutional matter within its
power a court may make any order that is just and equitable, including an order suspending the declaration of invalidity for any period and on any
conditions, to allow the competent authority to correct the defect’.
11 (CCT14/96) [1997] ZACC 6; 1997 (7) BCLR 851; 1997 (3) SA 786 (5 June 1997) para 95.
12 See Dawood para 59, where the Court stated:
It is clear from this provision that a court is obliged, once it is has concluded that a provision of a statute is unconstitutional, to declare that
provision to be invalid to the extent of its inconsistency with the Constitution. In addition, the court may also make any order that it considers
just and equitable including an order suspending the declaration of invalidity for some time.
13 S 2 read with s 172(1) of the Constitution.
14 Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others (CCT5/95) [1995] ZACC 13; 1996 (1) SA 984 (CC); 1996 (1) BCLR 1
(6 December 1995) paras 26, 27 and 158; Fose para 94.
15 (CCT5/95) [1995] ZACC 13; 1996 (1) SA 984 (CC); 1996 (1) BCLR 1 (6 December 1995).
16 Ferreira; Vryenhoek para 27.
17 Ferreira; Vryenhoek para 27.
18 See S and Others v Van Rooyen and Others (General Council of the Bar of South Africa Intervening) (CCT21/01) [2002] ZACC 8; 2002 (5) SA 246;
2002 (8) BCLR 810 (11 June 2002) para 88:
[L]egislation must be construed consistently with the Constitution and thus, where possible, interpreted so as to exclude a construction that would
be inconsistent with [the Constitution]. If held to be unconstitutional, the appropriate remedy ought, if possible, to be in the form of a notional or
actual severance, or reading in, so as to bring the law within acceptable constitutional standards. Only if this is not possible, must a declaration of
complete invalidity of the section or subsection be made.
See also Bishop, M ‘Remedies’ in Woolman, S and Bishop, M (eds) (2013) Constitutional Law of South Africa 2nd ed rev service 5 9.86.
19 J and Another v Director General, Department of Home Affairs and Others (CCT46/02) [2003] ZACC 3; 2003 (5) BCLR 463; 2003 (5) SA 621 (CC)
(28 March 2003) para 22.
20 Fose para 69.
21 Dawood paras 63–4; Fraser (II) paras 9–10; Minister of Home Affairs and Another v Fourie and Another (CCT 60/04) [2005] ZACC 19; 2006 (3) BCLR
355 (CC); 2006 (1) SA 524 (CC) (1 December 2005) para 170.
22 Fraser (II) paras 9–10.
23 Tsotetsi para 10.
24 See Bishop (2013) 9.87.
25 Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others In re: Hyundai Motor Distributors
(Pty) Ltd and Others v Smit NO and Others (CCT1/00) [2000] ZACC 12; 2000 (10) BCLR 1079; 2001 (1) SA 545 (CC) (25 August 2000) para 23.
26 See, for example, Bhulwana; Gwadiso para 29; National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others
(CCT10/99) [1999] ZACC 17; 2000 (2) SA 1; 2000 (1) BCLR 39 (2 December 1999) paras 25–6.
27 See Fourie para 33.
28 Hyundai Motor Distributors para 24.
29 See, for example, Wary Holdings (Pty) Ltd v Stalwo (Pty) Ltd and Another (CCT78/07) [2008] ZACC 12; 2009 (1) SA 337 (CC); 2008 (11) BCLR 1123
(CC) (25 July 2008) where the judges on the Constitutional Court differed about this question.
30 National Coalition for Gay and Lesbian Equality v Minister of Home Affairs paras 25–6.
31 Daniels v Campbell and Others (CCT 40/ 03) [2004] ZACC 14; 2004 (5) SA 331 (CC); 2004 (7) BCLR 735 (CC) (11 March 2004) paras 19–25.
32 Currie, I and De Waal, J (2001) The New Constitutional and Administrative Law, Vol 1 Constitutional Law 290.
33 See Coetzee v Government of the Republic of South Africa; Matiso and Others v Commanding Officer Port Elizabeth Prison and Others (CCT19/94,
CCT22/94) [1995] ZACC 7; 1995 (10) BCLR 1382; 1995 (4) SA 631 (22 September 1995) para 16.
34 Coetzee; Matiso para 16.
35 See Bishop (2013) 9.99.
36 Case and Another v Minister of Safety and Security and Others, Curtis v Minister of Safety and Security and Others (CCT20/95, CCT21/95) [1996]
ZACC 7; 1996 (3) SA 617; 1996 (5) BCLR 608 (9 May 1996) para 71.
37 (CCT20/95, CCT21/95) [1996] ZACC 7; 1996 (3) SA 617; 1996 (5) BCLR 608 (9 May 1996).
38 Case, Curtis paras 72–3.
39 See Bishop (2013) 9.102.
40 (CCT36/01) [2002] ZACC 3; 2002 (4) SA 294; 2002 (5) BCLR 433 (11 April 2002).
41 Schedule 1 Clause 2(a) of the Code of Conduct for Broadcasting Services in the Independent Broadcasting Authority Act 153 of 1993.
42 Islamic Unity Convention para 54.
43 Islamic Unity Convention para 55.
44 Islamic Unity Convention para 58. See also Ferreira; Vryenhoek.
45 (CCT10/99) [1999] ZACC 17; 2000 (2) SA 1; 2000 (1) BCLR 39 (2 December 1999) para 64.
46 National Coalition for Gay and Lesbian Equality v Minister of Home Affairs para 74; Lawyers for Human Rights and Other v Minister of Home Affairs
and Other (CCT 18/03) [2004] ZACC 12; 2004 (4) SA 125 (CC); 2004 (7) BCLR 775 (CC) (9 March 2004) paras 45–7.
47 National Coalition for Gay and Lesbian Equality v Minister of Home Affairs para 74.
48 S v Manamela and Another (Director-General of Justice Intervening) (CCT25/99) [2000] ZACC 5; 2000 (3) SA 1; 2000 (5) BCLR 491 (14 April 2000)
para 57.

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 49 In Zuma v National Director of Public Prosecutions (8652/08) [2008] ZAKZHC 71; [2009] 1 All SA 54 (N); 2009 (1) BCLR 62 (N) (12 September 2008)
paras 23–5, Nicholson J wrongly used reading in as an interpretative strategy without having declared invalid the relevant section of the National
Prosecuting Authority Act 32 of 1998 into which words were read. See generally Bishop (2013) 9.104–9.111.
50 National Coalition for Gay and Lesbian Equality v Minister of Home Affairs para 66.
51 National Coalition for Gay and Lesbian Equality v Minister of Home Affairs para 67. The Constitutional Court partly relied on the Canadian Supreme
Court judgment in Schachter v Canada (1992) 93 DLR (4th) 1 para 69 to justify its use of the reading in remedy.
52 National Coalition for Gay and Lesbian Equality v Minister of Home Affairs para 76.
53 National Coalition for Gay and Lesbian Equality v Minister of Home Affairs para 74.
54 National Coalition for Gay and Lesbian Equality v Minister of Home Affairs para 75.
55 See Khosa and Others v Minister of Social Development and Others, Mahlaule and Another v Minister of Social Development (CCT 13/03, CCT 12/03)
[2004] ZACC 11; 2004 (6) SA 505 (CC); 2004 (6) BCLR 569 (CC) (4 March 2004) para 88.
56 Fose para 94. See also National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others (CCT11/98) [1998] ZACC 15;
1999 (1) SA 6; 1998 (12) BCLR 1517 (9 October 1998) paras 93–6.
57 Bhulwana, Gwadiso para 32.
58 See S v Ntsele (CCT25/97) [1997] ZACC 14; 1997 (11) BCLR 1543 (14 October 1997) para 14 and Bhulwana, Gwadiso para 32.
59 S v Zuma and Others (CCT5/94) [1995] ZACC 1; 1995 (2) SA 642; 1995 (4) BCLR 401 (SA); 1995 (1) SACR 568; [1996] 2 CHRLD 244 (5 April 1995)
para 43.
60 Bhulwana, Gwadiso para 32.
61 Bhulwana, Gwadiso para 32.
62 Mackey v US 401 US 667 (1971) at 691 quoted with approval in Bhulwana, Gwadiso para 32.
63 Executive Council of the Western Cape Legislature and Others v President of the Republic of South Africa and Others (CCT27/95) [1995] ZACC 8; 1995
(10) BCLR 1289; 1995 (4) SA 877 (22 September 1995) para 105. In this case the President sought to invoke the interim Constitution’s equivalent of
s 172(1)(b)(i) to validate proclamations which had the effect of amending an Act of Parliament. The Court found this to be ‘logically inconsistent’ since
the reason why the amendments were invalid in the first place was that they should have been passed by Parliament and not the President.
64 The order in Bhulwana, Gwadiso is a representative example.
65 (CCT11/98) [1998] ZACC 15; 1999 (1) SA 6; 1998 (12) BCLR 1517 (9 October 1998).
66 National Coalition for Gay and Lesbian Equality v Minister of Justice para 96.
67 National Coalition for Gay and Lesbian Equality v Minister of Justice paras 97–8.
68 Executive Council of the Western Cape Legislature para 106.
69 Fraser v Children’s Court Pretoria North and Others (CCT31/96) [1997] ZACC 1; 1996 (8) BCLR 1085; 1997 (2) SA 218 (5 February 1997) (Fraser I)
para 50. See also Dawood para 63; South African National Defence Union v Minister of Defence and Others (CCT65/06) [2007] ZACC 10; 2007 (5) SA
400; 2007 (8) BCLR 863 (CC); [2007] 9 BLLR 785 (CC); (2007) 28 ILJ 1909 (CC) (30 May 2007).
70 (CCT46/02) [2003] ZACC 3; 2003 (5) BCLR 463; 2003 (5) SA 621 (CC) (28 March 2003) para 21.
71 Doctors for Life International v Speaker of the National Assembly and Others (CCT12/05) [2006] ZACC 11; 2006 (12) BCLR 1399 (CC); 2006 (6) SA
416 (CC) (17 August 2006) para 114.
72 Fraser I para 51.
73 Fraser I para 50.
74 Fraser I para 51.
75 Executive Council of the Western Cape Legislature para 108.
76 Executive Council of the Western Cape Legislature para 107.
77 Fourie para 135.
78 Coetzee; Matiso para 18; S v Mbatha, S v Prinsloo (CCT19/95, CCT35/95) [1996] ZACC 1; 1996 (3) BCLR 293; 1996 (2) SA 464 (9 February 1996)
para 30.
79 Bhulwana, Gwadiso para 30; Brink v Kitshoff NO (CCT15/95) [1996] ZACC 9; 1996 (4) SA 197; 1996 (6) BCLR 752 (15 May 1996) para 51.
80 Bhe and Others v Khayelitsha Magistrate and Others (CCT 49/03) [2004] ZACC 17; 2005 (1) SA 580 (CC); 2005 (1) BCLR 1 (CC) (15 October 2004)
para 108.
81 See Currie and De Waal (2001) 295.
82 See Minister of Justice v Ntuli (CCT15/97, CCT17/95) [1997] ZACC 7; 1997 (6) BCLR 677; 1997 (3) SA 772 (5 June 1997) para 41.
83 Executive Council of the Western Cape Legislature para 113.
84 (CCT 60/04) [2005] ZACC 19; 2006 (3) BCLR 355 (CC); 2006 (1) SA 524 (CC) (1 December 2005).
85 Act 25 of 1961.
86 Fourie paras 132 and 162.
87 Fourie paras 136–7.
88 Fourie para 165.
89 Fourie para 167.
90 Fourie para 169.
91 Fourie para 170.
92 Fourie para 171.
93 (CCT 56/03) [2004] ZACC 20; 2005 (2) SA 359 (CC); 2005 (4) BCLR 301 (CC) (26 November 2004) para 108.
94 See National Director of Public Prosecutions v Mohamed NO and Others (CCT44/02) [2003] ZACC 4; 2003 (1) SACR 561; 2003 (5) BCLR 476; 2003
(4) SA 1 (CC) (3 April 2003) para 58.
95 See JT Publishing (Pty) Ltd and Another v Minister of Safety and Security and Others (CCT49/95) [1996] ZACC 23; 1996 (12) BCLR 1599; 1997 (3) SA
514 (21 November 1996) para 15.
96 Roach, K ‘Crafting remedies for violations of economic, social and cultural rights’ in Squires, J, Langford, M and Thiele, B (eds) (2005) The Road to a
Remedy: Current Issues in the Litigation of Economic, Social and Cultural Rights 113.
97 Ebadolahi, M (2008) Using structural interdicts and the South African Human Rights Commission to achieve judicial enforcement of economic and social
rights in South Africa New York University Law Review 83(5):1565–1606 at 1596.
98 See Occupiers of 51 Olivia Road, Berea Township and 197 Main Street Johannesburg v City of Johannesburg and Others (24/07) [2008] ZACC 1; 2008
(3) SA 208 (CC); 2008 (5) BCLR 475 (CC) (19 February 2008) para 14 and Schubart Park Residents’ Association and Others v City of Tshwane
Metropolitan Municipality and Another (CCT 23/12) [2012] ZACC 26; 2013 (1) SA 323 (CC); 2013 (1) BCLR 68 (CC) (9 October 2012).
99 (CCT8/99) [1999] ZACC 3; 1999 (3) SA 1; 1999 (4) BCLR 363 (1 April 1999).
100 (CCT45/04) [2005] ZACC 6; 2005 (5) SA 315 (CC); 2005 (8) BCLR 812 (CC); 2006 (1) SACR 220 (CC); [2005] JOL 14514 (CC) (25 May 2005).
101 (CCT3/94) [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391; [1996] 2 CHRLD 164; 1995 (2) SACR 1 (6 June 1995).
102 Sibiya I para 59.
103 Sibiya I para 63.

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 104 Sibiya and Others v Director of Public Prosecutions (Sibiya III) (CCT45/04B) [2006] ZACC 22; 2006 (2) BCLR 293 (CC) (30 November 2006)
paras 22–3.
105 Sibiya and Others v Director of Public Prosecutions: Johannesburg High Court and Others (Sibiya II) (CCT 45/04) [2005] ZACC 16; 2006 (2) BCLR
293 (CC); [2005] JOL 15699 (CC) (7 October 2005).
106 (CCT 22/08) [2009] ZACC 16; 2009 (9) BCLR 847 (CC); 2010 (3) SA 454 (CC) (10 June 2009) para 7.
107 Fose para 58.
108 Fose para 17.
109 Fose para 60.
110 Fose para 65
111 Fose para 67.
112 Fose para 68.
113 Fose para 71.
114 Fose para 72.
115 (CCT20/04) [2005] ZACC 5; 2005 (5) SA 3 (CC); 2005 (8) BCLR 786 (CC) (13 May 2005).
116 Act 63 of 1975.
117 Modderklip para 58.
118 City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Another (CC) [2011] ZACC 33; 2012 (2) BCLR 150
(CC); 2012 (2) SA 104 (CC) (1 December 2011).
119 Currie and De Waal (2005) 219.
120 Currie and De Waal (2005) 223–4.
121 The High Court had previously adopted a similar method of insisting on constructive dialogue between the parties before handing down its order. In
Lingwood and Another v The Unlawful Occupiers of R/E of Erf 9 Highlands 2008 (3) BCLR 325 (W) para 33, the Court refused an eviction order until
such time as the parties had attempted to achieve a mutually acceptable solution. This case, along with the cases of Sailing Queen Investments v The
Occupants La Colleen Court 2008 (6) BCLR 666 (W) and Blue Moonlight Properties 39 (Pty) Ltd v Occupiers of Saratoga Avenue and Another 2009 (1)
SA 470 (W), established the trend towards the creation of meaningful engagement as a remedy.
122 (24/07) [2008] ZACC 1; 2008 (3) SA 208 (CC); 2008 (5) BCLR 475 (CC) (19 February 2008). See also Port Elizabeth Municipality v Various Occupiers
(CCT 53/03) [2004] ZACC 7; 2005 (1) SA 217 (CC); 2004 (12) BCLR 1268 (CC) (1 October 2004) para 39 and Residents of Joe Slovo Community. See
also Chenwi, L (2009) A new approach to remedies in socio-economic rights adjudication: Occupiers of 51 Olivia Road and Others v City of
Johannesburg and Others Constitutional Court Review 2:371–93 at 373.
123 Occupiers of 51 Olivia Road para 16.
124 Occupiers of 51 Olivia Road para 17.
125 Occupiers of 51 Olivia Road para 18.
126 Occupiers of 51 Olivia Road para 14.
127 Occupiers of 51 Olivia Road para 5.
128 Chenwi (2009) 373.
129 Chenwi (2009) 381.
130 (CCT12/05) [2006] ZACC 11; 2006 (12) BCLR 1399 (CC); 2006 (6) SA 416 (CC) (17 August 2006) paras 111 and 116.
131 Mahomed, I (1998) The independence of the judiciary South African Law Journal 115(4):658–67 at 658.

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 Equality, human dignity and privacy rights
All rights reserved. May not be reproduced in any form without permission from the publisher, except fair uses permitted under U.S. or applicable copyright law.

12.1 Introduction
12.2 The right to equality and non-discrimination
12.2.1 Introduction: substantive equality versus formal equality
12.2.2 Differentiation and discrimination
12.2.3 Values underlying the right to equality: human dignity and equality
12.2.4 Attacking the constitutionality of a legislative provision: section 9 of the Constitution
12.2.4.1 Introduction
12.2.4.2 Mere differentiation: section 9(1)
12.2.4.3 Redress measures (affirmative action): section 9(2)
12.2.4.3.1 Basic approach
12.2.4.3.2 The test for redress (affirmative action) measures in terms of section
9(2)
12.2.4.4 Unfair discrimination: section 9(3)
12.2.4.4.1 Does the differentiation amount to discrimination?
12.2.4.4.2 Is the discrimination unfair?
12.2.5 Non-statutory imposed discrimination: the Promotion of Equality and Prevention of
Unfair Discrimination Act 4 of 2000
12.3 The right to human dignity
12.3.1 Introduction
12.3.2 Human dignity as a right and as a value
12.4 The right to privacy
12.4.1 Introduction
12.4.2 Scope and content of the right to privacy
12.4.3 Privacy regarding sexual intimacy
Summary
Copyright 2014. Oxford University Press Southern Africa.

12.1 Introduction
The value of dignity is a central value underlying the Constitution and we could even say it is the cornerstone of the Constitution
and the rights protected in it.1 This is made clear by section 1(a) of the Constitution, which states that the Republic of South
Africa is founded on the values of human dignity, the achievement of equality and the advancement of human rights and
freedoms.2 When considering the scope and content of the various rights in the Bill of Rights, it is important to understand that
human dignity informs constitutional adjudication and interpretation and is ‘a value that informs the interpretation of many,
possibly all, other rights’.3 It is a ‘motif which links and unites equality and privacy’, and which ‘runs right through the
protections offered by the Bill of Rights’.4 The value of dignity permeates the Bill of Rights to contradict South Africa’s
apartheid past ‘in which human dignity for black South Africans was routinely and cruelly denied’. 5
As we shall see, dignity is not only a value that permeates the Bill of Rights and the Constitution as a whole; it is also a
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 justiciable and enforceable right. In many cases where the value of human dignity is offended, the primary constitutional breach
occasioned may be of a more specific right. Arguably, the most important of these rights in the South African context – given its
history of discrimination – is the right to equality.6 As we shall see, there is a strong link between the value of dignity and the
enforcement of the right to equality and non-discrimination. The truth is that the value of dignity also undergirds most, if not all,
of the other rights contained in the Bill of Rights.
It is not easy to pin down the content of the value of human dignity. 7 The Constitutional Court has recognised that, in the
context of Bill of Rights adjudication, this value of human dignity recognises the inherent worth of all individuals as members of
our society, as well as the value of the choices that they make. It comprises the ‘deeply personal understanding we have of
ourselves, our worth as individuals and our worth in our material and social context’. 8 The value of dignity asserts that every
human being counts; that every human being has infinite value, regardless of his or her personal circumstances or actions. Given
that every human being counts, every human being is entitled to be treated as a human being and to be valued. As we discuss the
various rights in the Bill of Rights, it will be important to keep in mind that this notion of human dignity informs the approach
taken by the Constitutional Court in interpreting and applying the various substantive rights.
In this chapter we focus on the right to equality, the right to dignity and the right to privacy, the denial of which can arguably
be said to have resulted in some of the most egregious forms of injustice during the apartheid era and continue to rob many
people of respect and concern. The denial of these rights has drastic direct and personal effects on individuals, but it would be a
mistake to view these rights only in such individualistic terms. Often, the manner in which society is structured, the cultural
assumptions deeply embedded in society and the vast inequalities between rich and poor have a direct and lasting effect on the
denial of these rights. It is therefore impossible not to consider these rights against the backdrop of the broader social, economic
and political context and to remain mindful of how the broader context influences our understanding of the operation of these
rights. It would therefore be a mistake to analyse these rights and the jurisprudence of the Constitutional Court relating to these
rights (or any other rights protected in the Bill of Rights for that matter) in an a-contextual or overtly formalistic manner. It must
always be remembered that rights are aimed at protecting individual human beings and at promoting their well-being and ability
to make meaningful life choices. This means that the actual lived reality of individuals and the effects of impugned actions or
omissions by both the state and private parties will always be centre stage when considering breaches of the rights in the Bill of
Rights.9

PAUSE FOR REFLECTION

The broader context within which rights adjudication takes place

The social and economic realities of South Africa (including deep inequality and an uneven distribution of
social and economic privileges), some cultural beliefs and practices as well as sometimes deeply
entrenched prejudices and harmful beliefs all potentially affect the ability of individuals to live lives of dignity
and respect. The provisions in the Bill of Rights cannot on their own eradicate these factors which hamper
the realisation of the rights in the Bill of Rights. While human rights can be invoked to help facilitate the
South African transformation, more systemic problems require concerted action from other important role
players, including the government of the day, civil society groups, religious institutions, unions, political
parties, business and individual citizens.
However, by taking account of the broader context in South Africa within which rights adjudication takes
place, the Constitutional Court acknowledges that the full harm of the denial of human rights cannot be
identified and addressed by merely looking in a formalistic and a-contextual manner at individual litigants
and asking whether that litigant was harmed. This approach recognises that South Africa’s colonial and
apartheid history created a society that is profoundly unfair and unjust. It also acknowledges that deeply
entrenched forms of patriarchy, homophobia as well as a long history of political oppression, have not
fostered a culture of respect for diversity and for democratic values of openness, tolerance and
broadmindedness. When interpreting rights in the Bill of Rights and when deciding whether rights are being
infringed, these realities can therefore not be denied.

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 12.2 The right to equality and non-discrimination

12.2.1 Introduction: substantive equality versus formal equality

Apartheid systematically discriminated against black South Africans in all aspects of economic and social life. As the
Constitutional Court has pointed out:

Black people were prevented from becoming owners of property or even residing in areas classified as
‘white’, which constituted nearly 90% of the landmass of South Africa; senior jobs and access to
established schools and universities were denied to them; civic amenities, including transport systems,
public parks, libraries and many shops were also closed to black people. Instead, separate and inferior
facilities were provided. The deep scars of this appalling programme are still visible in our society. It is
in the light of that history and the enduring legacy that it bequeathed that the equality clause needs to
be interpreted.10

But it is not only black people who have suffered and sometimes continue to suffer from discrimination. Women, gay men and
lesbians, people with disabilities, HIV-positive people, foreigners, religious minorities and many individuals with distinctive
attributes or characteristics have also suffered marginalisation and exclusion and to some extent still do. When considering the
scope and content of the right to equality, it is important to have regard to these realities.
No two people in the world are identical in terms of their attributes, characteristics, intelligence or other talents. Nor do
people enjoy identical benefits and opportunities as they grow up. This is particularly true in South Africa, a country in which
vast discrepancies in wealth, educational opportunities and access to resources led to an unequal distribution of opportunities.
Race, class and gender differences have also had an impact and perpetuate the subordination of black people, women, gay men,
lesbians and the poor. A person’s inborn talents, predisposition and the status accorded to him or her based on irrelevant
considerations such as race, gender or sexual orientation, as well as other factors such as the quality of education he or she
receives, the access he or she has to financial and other resources, and the opportunities and support parents or caregivers are
capable of providing, influence the extent to which he or she manages to live a rich and fulfilled life. Through no fault of their
own, different people from different backgrounds have an unequal chance to reach their goals in life.
The right to equality is guaranteed in section 9 of the Bill of Rights. Section 9 reads as follows:

(1) Everyone is equal before the law and has the right to 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.
(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.

Section 9 thus aims to address some of the unfairness inherent in this state of affairs while also providing a legal framework to
prevent unfair treatment of individuals based on their race, sex, gender, sexual orientation, disability and other personal
characteristics or attributes. As such, the right to equality is an essential component of the transformative Constitution. The reason
for this is that the right to equality encapsulates the aspiration of eventually achieving a society in which all enjoy equal access to
the resources and amenities of life, and are able to develop their full human potential. 11
Two important consequences flow from this conception of the right to equality:
• First, the right to equality cannot entail a guarantee that all people should be treated identically at all times, regardless of their
personal attributes or characteristics, social or economic status. The right should therefore be viewed as entailing more than a
formal prohibition against discrimination.
• Second, the right to equality must guarantee more than equality before the law and must focus on the effects or impact of
legal rules or other differentiating treatment on individuals. The right to equality cannot therefore focus merely on whether
two people have been treated in an identical manner by the legal rule or by the institution or individual concerned. The idea
of substantive equality best captures this approach to equality jurisprudence.

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 We can contrast substantive equality with the traditional, liberal idea of formal equality.12 Underlying formal equality is the
belief that inequality is irrational and arbitrary, that people are all born free and equal, and that the harm of discrimination is
situated in the failure of a government to treat all people as equally free. 13 Formal equality focuses on the formal way in which
the law treat individuals or groups. It explicitly denies the need to take into account the social and economic context or the
differences in power, status and opportunities between individuals or groups of individuals when judging whether the equality
injunction has been breached or not. Formal equality demands that all people should be treated in the same manner, regardless of
their personal circumstances, their history, their social and economic status, and whether they have been discriminated against in
the past or still face discrimination in the present.14 Formal equality demands neutrality and does not accommodate different
treatment of people who are socially and economically different from one another.
The concept of formal equality is often criticised because this neutral approach to equality masks forms of bias. It ignores the
fact that neutral standards often embody the interests and experiences of socially privileged groups whose views and attitudes are
so dominant that they have become invisible and appear to be neutral. Formal equality is also said to ignore the actual social and
economic differences between people, how this affects people’s chances in life and the different power wielded by different
individuals and groups in society. As such, an insistence on the formal equal treatment of all people – regardless of their social
and economic status – may exacerbate the inequality of socially and economically marginalised and vulnerable groups. It does
this by ignoring the actual inequality between the dominant or privileged groups and marginalised and vulnerable groups and the
ways in which seemingly neutral rules continue to advantage the privileged and dominant in society. 15
Substantive equality, however, proceeds from the understanding that there are structural or systemic reasons why not all
individuals enjoy equal opportunities to reach their full life potential. Substantive equality focuses on the actual economic, social
and political conditions of groups and individuals in society. As the Constitutional Court pointed out:

Particularly in a country such as South Africa, persons belonging to certain categories have suffered
considerable unfair discrimination in the past. It is insufficient for the Constitution merely to ensure,
through its Bill of Rights, that statutory provisions which have caused such unfair discrimination in
the past are eliminated. Past unfair discrimination frequently has ongoing negative consequences, the
continuation of which is not halted immediately when the initial causes thereof are eliminated, and
unless remedied, may continue for a substantial time and even indefinitely. Like justice, equality
delayed is equality denied.16

Substantive equality asks what impact differentiating legal rules or other differentiating treatment will have on groups or
individuals, given differences in the social and economic status of such groups or individuals, and given the way in which
existing ‘neutral’ legal rules privilege the economically and culturally dominant and powerful in society. A legal commitment to
substantive equality therefore entails attention to the context. This context includes the social and economic inequalities in
society, the effects of past and ongoing prejudice and discrimination on the basis of race, sex, gender, sexual orientation,
disability, economic status and other grounds on the life opportunities of individuals. The context also includes the manner in
which private relationships, such as marriage and child-rearing duties, continue to be structured in ways that produce or
perpetuate disadvantage and subordination. The focus is on the impact of the treatment instead of the treatment itself. Substantive
equality is remedial in nature and aims to overcome the effects of past and ongoing prejudice and discrimination as well as the
broader structural reasons for the disempowerment and economic disadvantage faced by some individuals or groups in society.
The South African Constitutional Court has embraced the notion of substantive equality, stating in Minister of Finance and
Other v Van Heerden that:

This substantive notion of equality recognises that besides uneven race, class and gender attributes of
our society, there are other levels and forms of social differentiation and systematic under-privilege,
which still persist. The Constitution enjoins us to dismantle them and to prevent the creation of new
patterns of disadvantage. It is therefore incumbent on courts to scrutinise in each equality claim the
situation of the complainants in society; their history and vulnerability; the history, nature and
purpose of the discriminatory practice and whether it ameliorates or adds to group disadvantage in
real life context, in order to determine its fairness or otherwise in the light of the values of our
Constitution. In the assessment of fairness or otherwise a flexible but ‘situation-sensitive’ approach is
indispensable because of shifting patterns of hurtful discrimination and stereotypical response in our
evolving democratic society. The unfair discrimination enquiry requires several stages.17

It is clear from this approach that the context within which a court must judge an equality case is of primary importance to
determine whether there was a breach of section 9. This context in which the court must judge an equality case is formed, first, by
the constitutional text in its entirety. Second, the court must take into account the country’s recent history, particularly the
systematic discrimination suffered by black people under apartheid 18 as well as systematic patterns of discrimination on grounds

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 other than race that have caused, and may continue to cause, considerable harm. 19 Any consideration of whether a legally
relevant differentiation actually constitutes a breach of section 9 must therefore take into account the history of the impugned
provision as well as the history of the group or groups to which the complainant belongs. Taking this context into account, the
court determines whether the legally relevant differentiation aims to create or perpetuate patterns of group disadvantage, or
whether it aims to break down these structural inequalities and thus reach for true or substantive equality. If the latter is the case,
the court will be reluctant to declare the measures unconstitutional or unlawful. 20
Because the court’s approach requires a contextual analysis, it may thus take into account the ongoing structural inequality
in society when deciding on the unfairness of the discrimination. 21 The court’s contextual or remedial approach acknowledges
that inequality results from complex power relations in society. It appears to view the law as having an important role in
reordering these power relations in ways which strive to ensure that all individuals are treated as if they have the same moral
worth. Disadvantage here, then, is not equated with different treatment of individuals who are born free and equal. Disadvantage
is rather equated with some harmful impact, whether direct or indirect, that the differentiation between groups might have on a set
of complainants within the historical context of South Africa.22
As mentioned above, the focus is on the impact of the treatment instead of the treatment itself. Substantive equality is
remedial in nature and aims to overcome the effects of past and ongoing prejudice and discrimination. It requires a retreat from
legal formalism and a focus on the underlying purpose of the right to equality – what harm it seeks to address – as well as the
values underlying equality. The harm to be addressed rests on at least three pillars:
• the culturally constructed ideology of differences based on the belief in the superiority of dominant groups and the inferiority
of non-dominant groups
• the economic exploitation and disempowerment of those without power because of their race, sex, gender, sexual orientation
or other attributes
• in the South African context, also the previous political disenfranchisement of black South Africans. 23

PAUSE FOR REFLECTION

Distinguishing between formal equality and substantive equality

To distinguish between formal equality and substantive equality, it may be helpful to focus on a specific
example. Where a guesthouse catering to gay and lesbian tourists refuses to accommodate any
heterosexual clients, that guesthouse would be treating people differently based on their sexual orientation.
A heterosexual couple who are denied accommodation at the guesthouse may feel that they have been
discriminated against on the basis of their sexual orientation as they have been denied accommodation
purely because they are heterosexual. A court that adheres to a formal notion of equality may have to find
in favour of the heterosexual couple on the basis that the guesthouse treats gay men and lesbians
differently from heterosexuals to the detriment of the latter group. Formally, the guesthouse rule denies the
heterosexual couple a benefit that is not denied to gay men and lesbians.
A court that embraces a substantive notion of equality may look at the larger social and economic
context. The court may acknowledge that gay men and lesbians continue to suffer from prejudice,
stigmatisation and discrimination. They may therefore feel vulnerable and exposed in situations where they
are required to book into a guesthouse along with heterosexual clients. In an ordinary guesthouse, gay and
lesbian couples may fear being subjected to the prejudices (presumed or real) of non-homosexual clients.
This may inhibit them from showing affection for one another and may detract from their enjoyment of their
stay.
The guesthouse in our example aims to provide a safe space for gay men and lesbians where couples
can openly express physical affection for one another and interact in loving and intimate ways with each
other as heterosexual couples do every day in public. They can do so in a manner in which they may not be
able to do when they fear the judgment of heterosexuals staying at the establishment.
The court embracing substantive equality may find that this different treatment is not in breach of the
equality guarantee. Heterosexual couples will have no problem in finding alternative accommodation
because there is no widespread discrimination against them in society. The guesthouse rule will not send a
signal that heterosexuals are somehow less worthy of concern and respect than gay men and lesbians. The
court will take into account the broader context. This context includes the fact that heterosexuals are not
generally believed to be marginalised or suffering from patterns of discrimination, disadvantage or harm. In
addition, different treatment will not establish new patterns of discrimination, disadvantage and harm by a
powerful group over a disempowered and vulnerable group. The court may therefore well dismiss a
complaint of discrimination brought by a heterosexual couple.24 For exactly the same reasons, the court

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 will find a guesthouse that prohibits black people from staying at its establishment guilty of discrimination as
such an exclusion will perpetuate long-standing patterns of discrimination and prejudice.

In the following sections we first set out the basic assumptions underlying the substantive approach to equality as well as the
values implied by the right to equality. We then focus on two distinct situations in which the right to equality arises:
• cases where individuals are treated differently but where this different treatment does not explicitly address the effects of past
and ongoing prejudice and discrimination
• cases where the different treatment is explicitly justified on the grounds that it addresses the effects of past and ongoing
prejudice and discrimination (so-called affirmative action measures or better referred to as redress measures).

We also discuss the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA). 25 The PEPUDA gives
legislative effect to section 9 of the Constitution and is often relied on instead of section 9 itself.

12.2.2 Differentiation and discrimination

The idea of differentiation lies at the heart of South Africa’s equality jurisprudence. 26 Not all forms of differentiation are
constitutionally problematic: relatively benign forms of differentiation between people or groups of people permeate human
relations in a modern society and the Constitution does not usually prohibit the law from making such distinctions. A modern
state is required to regulate the affairs of its inhabitants extensively. It is impossible to do so without differentiation and without
classifications that treat people differently and which affect people differently.27
Moreover, private individuals or institutions differentiate daily between individuals in many ways. These numerous forms of
differentiation are seldom problematic from a constitutional law perspective and the vast majority of cases in which people or
groups of people are treated differently from one another are legally benign.
However, some forms of differentiation by the state or by private parties do infringe on the right to equality guaranteed in
section 9 of the Constitution. As we shall see, the Constitutional Court draws a sharp distinction between mere differentiation
dealt with in terms of section 9(1) of the Constitution and discrimination dealt with in terms of section 9(3) of the Constitution.
The consequence of this distinction between mere differentiation and discrimination is that questions around discrimination
dominate the Constitutional Court’s approach to equality.28 It is clear that for a claimant to succeed with an equality challenge, it
will usually (but not in every case) be necessary to frame a claim about a breach of section 9 of the Constitution as one of
discrimination rather than in terms of a general claim to equality or a claim of differentiation. The Constitutional Court has
chosen to focus its equality jurisprudence on the notion of discrimination rather than on the more ‘complex’, ‘elusive’ and
‘empty’ 29 notion of equality or on all cases of differentiation. This choice stems from a need to provide a suitably ‘structured’
and ‘focused’ legal framework that will provide an effective and easy-to-apply legal test to determine whether the equality
guarantee has been breached.30
The Constitutional Court views the concept of non-discrimination as providing the legal mechanism that will deal effectively
with egregious forms of inequality and different treatment while avoiding the opening of the litigation floodgates. By focusing on
targeted forms of discrimination instead of on the more general equality guarantee dealing with all forms of differentiation, the
Court aims to discourage well-resourced litigants in the private sector from challenging every conceivable form of legal
differentiation. The Constitutional Court therefore focuses on the importance of non-discrimination and sees it as a safe and more
or less predictable way of dealing with the difficult issues of equality with which it has been, and no doubt will continue to be,
confronted.31

12.2.3 Values underlying the right to equality: human dignity and equality
The judges of the Constitutional Court have unanimously embraced the idea that at its core, the equality guarantee protects
individuals’ human dignity. The centrality of the value of human dignity for equality jurisprudence was first established in
President of the Republic of South Africa and Another v Hugo where the Court placed human dignity at the heart of its equality
enquiry.32 The Court stated:

The prohibition on unfair discrimination in the interim Constitution seeks not only to avoid
discrimination against people who are members of disadvantaged groups. It seeks more than that. At
the heart of the prohibition of unfair discrimination lies a recognition that the purpose of our new

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 constitutional and democratic order is the establishment of a society in which all human beings will be
accorded equal dignity and respect regardless of their membership of particular groups (our
emphasis).33

The Court accepts that the equality guarantee protects individuals from differentiation based on one of the specified grounds in
section 9(3) or similar forms of differentiation that have the potential to infringe on a person’s fundamental human dignity.
Conversely, where differentiation is not based on one of the specified grounds and where it does not have the potential to infringe
on a person’s fundamental human dignity, there will be no unfair discrimination in terms of section 9(3) of the Constitution.
The Constitutional Court has provided quite a broad and expansive definition of human dignity. It has stated that human
dignity will be impaired whenever a legally relevant differentiation treats people as ‘second-class citizens’, ‘demeans them’,
‘treats them as less capable for no good reason’, otherwise offends ‘fundamental human dignity’ or where it violates an
individual’s self-esteem and personal integrity.34 This idea of dignity is based on the notion that all human beings have an equal
moral worth – the right to be treated with equal concern and respect – and derives from the work of Immanuel Kant. 35
This view of equality as inextricably linked to the concept of dignity has been reiterated in subsequent Constitutional Court
judgments 36 and has further been elaborated on, most notably in Prinsloo v Van der Linde and Another.37 However, in this
case, the Court gave an even more expansive interpretation of when treatment will be discriminatory. It added that not only an
infringement of human dignity, but also ‘other forms of differentiation, which in some other way affect persons adversely in a
comparably serious manner’, could constitute a harm prohibited by the non-discrimination provisions of the Constitution. 38
Where legal provisions deny this equal moral worth, the Court will find that there has been an impairment of human dignity or
that the complainant has been adversely affected in a comparably serious manner. This is a confirmation of Malherbe’s
proposition that ‘equality without dignity is inhuman’.39

CRITICAL THINKING

Does South African dignity-based equality jurisprudence narrow the understanding of

the right to equality?
Some academics have criticised the South African dignity-based equality jurisprudence on the basis that it
can narrow the understanding of the right to equality to an abstract and individualised notion about the
personal feelings of a litigant who feels hurt by prejudice and misrecognition.40 The fear is that the reliance
on the value of dignity would focus equality jurisprudence on the individual harm caused by prejudice as
well as on the narrow need to address such harms. This narrow focus on the individual and the harm
suffered by him or her, so the argument goes, runs the risk of ignoring the larger social and economic
disadvantages as well as the systemic nature of inequality in South African society.
For example, some people argue that a dignity-based approach to equality can powerfully address
issues of discrimination against gay men, lesbians and other sexual minorities. The reason for this is that
such discrimination is rooted in moral disapproval and results directly in an affront to their dignity and
identity.41 By contrast, the fear is that discrimination against women or black people can often not be
captured fully in terms of a dignity-based analysis. Such discrimination results from a complex mix of
superficially neutral laws, entrenched structural inequality and cultural stereotypes.42 South Africa has a
sexist, racist and homophobic past. Prejudices based on race, gender and sexual orientation continue to
linger in our society. Discrimination faced by many women, black people and to a lesser extent gay men
and lesbians, thus also has an economic component. This component cannot easily be captured with
reference to an infringement of a person’s dignity.
However, the Constitutional Court’s contextual approach to equality has allowed it to move beyond a
narrow, individualised notion of equality focused on individual personal autonomy, psychology and
self-worth. This contextual approach has permitted a systematic understanding of individual, group-based,
civil, political and material inequalities. Dignity is thus linked to the achievement of a world in which the
basic needs of all people will be met.43 In Khosa and Others v Minister of Social Development and Others,
Mahlaule and Another v Minister of Social Development,44 the Constitutional Court recognised that the
dignity of individuals will not be respected if the material conditions do not exist to allow for such a respect
for dignity. It also suggested that dignity is a group-based concept involving a collective concern for the
well-being of others and that the allocation of resources is important for considering equality concerns:

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 Sharing responsibility for the problems and consequences of poverty equally as a community
represents the extent to which wealthier members of the community view the minimal well-being
of the poor as connected with their personal well-being and the well-being of the community as a
whole. In other words, decisions about the allocation of public benefits represent the extent to
which poor people are treated as equal members of society.45

Apart from the value of dignity, the Constitutional Court has also affirmed that the value of equality is relevant for any
understanding of section 9 of the Constitution especially when dealing with the restitutionary aspects of equality. In Van Heerden
, the Constitutional Court affirmed the Constitution’s commitment to strive for a society based on social justice. Equality thus
requires more than equal protection before the law and non-discrimination, ‘but also the start of a credible and abiding process of
reparation for past exclusion, dispossession, and indignity within the discipline of our constitutional framework’. 46 As the Court
per Moseneke DCJ argued:

What is clear is that our Constitution and in particular section 9 thereof, read as a whole, embraces for
good reason a substantive conception of equality inclusive of measures to redress existing inequality.
Absent a positive commitment progressively to eradicate socially constructed barriers to equality and
to root out systematic or institutionalised underprivilege, the constitutional promise of equality before
the law and its equal protection and benefit must, in the context of our country, ring hollow.47

12.2.4 Attacking the constitutionality of a legislative provision: section 9 of the

Constitution

12.2.4.1 Introduction
Different legal tests apply to different situations in which an equality complaint is lodged. First, where a distinction between
different people stems from a legislative provision and the litigant asks a court to declare that legislative provision invalid, the
court has to rely directly on sections 9(1), 9(2) or 9(3) of the Constitution. These three sections apply in different situations and,
as we shall see, require the court to apply a different legal test in each case. It is important to identify whether a set of facts
dealing with a complaint about different treatment between people or groups of people fits under section 9(1), 9(2) or 9(3). The
court then applies the relevant test applicable to that set of facts. When attacking the constitutionality of a legislative provision, it
is therefore important, at the outset, to determine whether the attack will be based on section 9(1), 9(2) or (9(3). A direct reliance
on section 9 is required in such cases because legislation can only be invalidated by invoking the Constitution itself. This is
because the Constitution is supreme and therefore superior to the legislative provision under attack.
Second, where a litigant attacks the actions of a public official or private entity on equality grounds but this attack does not
relate to the possible invalidation of a legislative provision, the litigant will have to rely on the relevant provisions of the
PEPUDA. This is because the principle of subsidiarity requires a litigant who claims that one of his or her constitutional rights
has been infringed must rely on legislation adopted to protect that right. The litigant may thus not rely on the underlying
constitutional provision directly. Unless the litigant wants to attack the constitutionality of the legislative provision itself, he or
she cannot rely on section 9 as the PEPUDA gives effect to section 9 and will be the first port of call. 48 Given that the PEPUDA
gives effect to section 9 of the Constitution, it must be interpreted in the light of the Constitutional Court’s jurisprudence on
section 9. We therefore first discuss the Constitutional Court’s jurisprudence regarding section 9 before turning to the PEPUDA
as the general principles discussed when dealing with section 9 apply in the interpretation of the PEPUDA.
As noted above, section 9 deals with three distinct situations. First, section 9(1) applies in cases where the legislative
provision differentiates between people or groups of people, but this differentiation is not based, either directly or indirectly, on
one of the grounds listed in section 9(3) or on an analogous ground that is similar to the grounds explicitly listed in section 9(3).
We refer to such cases as cases of mere differentiation.49
In Prinsloo, the Court explained that it would be impossible to govern a modern country like South Africa efficiently and to
harmonise the interests of all its people for the common good without differentiation and classifications which treat people
differently and affect them differently. Such differentiations which are necessary to regulate the affairs of a country, or mere
differentiations, will, according to the Court, rarely constitute discrimination in and of themselves. 50 Mere differentiation
therefore refers to the many distinctions that the law makes that have nothing to do with the kind of discrimination based on race,
sex, gender or other grounds listed in or similar to those listed in section 9(3) of the Constitution. For example, where the

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 legislative provision makes a distinction between lawyers and doctors, a litigant attacking that provision will have to rely on
section 9(1) as section 9(3) does not explicitly prohibit discrimination against a group of people who are identified as doctors or
lawyers.
Second, section 9(2) applies to cases where the legislative provision explicitly aims to give effect to restitutionary measures.
These measures are also popularly known as affirmative action measures. If a legislative provision aims to implement a
restitutionary measure, the court first tests the constitutionality of that provision under section 9(2). If the restitutionary measure
complies with section 9(2), that is the end of the enquiry. The provision is constitutionally valid and cannot be tested against
section 9(3).51 As we shall see, this is important as the onus of proving or disproving an infringement of section 9 may differ
depending on whether a litigant relies on section 9(2) or section 9(3). However, if the legislative provision does not comply with
section 9(2), the court can still test it against section 9(3). In other words, the court uses section 9(2) to test legislative provisions
that implement affirmative action measures. However, when it finds that such measures do not comply with section 9(2), the
court can test their constitutionality against section 9(3).
The third instance is whenever the different treatment is based either directly or indirectly on one or more of the grounds
listed in section 9(3) or on a ground that the Court has found to be sufficiently similar to the grounds listed in section 9(3) to be
considered under that section. Also, the different treatment should not form part of an affirmative action programme or policy.
Here, the court must test the provision against section 9(3). In the case of listed grounds or grounds sufficiently similar to the
grounds listed in section 9(3), it is not necessary to invoke section 9(1) first. The litigant complaining of discrimination as
opposed to complaining about mere differentiation may directly invoke section 9(3).52 As noted, this situation is distinguished
from mere differentiation as it relates to different treatment on the basis of race, sex, gender, sexual orientation or one of the other
problematic distinctions and is referred to as discrimination.
In the sections that follow, we deal with the test to be applied to the three situations:
• differentiation that amounts to mere differentiation (section 9(1))
• different treatment mandated to advance an affirmative action policy (section 9(2))
• differentiation that amounts to discrimination but is not part of an affirmative action policy (section 9(3)).

Although the Constitutional Court stated that it would be neither desirable nor feasible to separate sections 9(1) and 9(3) into
watertight compartments, it nevertheless focused on section 9(1) as dealing with mere differentiation while section 9(3) was
earmarked as dealing with unfair discrimination.53

Table 12.1 Framework for challenging different treatment

Legal nature of differentiation Example Legal provision relied on

Legislative provision constituting mere A legal provision that requires cigarette Section 9(1) of the Constitution
differentiation products but not alcohol products to
carry warning labels

Legislative provision introducing an Employment Equity Act (EEA) 54 Section 9(2) of the Constitution
affirmative action programme provisions requiring certain employers to
institute affirmative action policies

Legislative provision that distinguishes A legislative provision that grants women Section 9(3) of the Constitution
directly or indirectly between groups but not men the right to a certain number
based on grounds listed in section 9(3) of days of pregnancy leave
or analogous grounds

An act by a private or public body or A holiday resort which allows only Section 14 of the PEPUDA
person that distinguishes directly or Christians to visit or an affirmative action
indirectly between groups of people policy of a small company
based on grounds set out in section 9(3)
or analogous grounds

12.2.4.2 Mere differentiation: section 9(1)

Given the Constitutional Court’s focus on discrimination when dealing with equality claims, it is not surprising that cases of mere
differentiation are not easy to prove. Recall that cases of mere differentiation are dealt with in terms of section 9(1) which states:
‘Everyone is equal before the law and has the right to equal protection and benefit of the law.’ According to the Constitutional
Court, this section means:

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 • first, that everybody is entitled, at the very least, to equal treatment by our courts of law
• second, that none should be above or beneath the law and that all are subject to law impartially applied and administered. 55

Examples of mere differentiation include distinctions between different types of prisoners or distinctions between different
classes of taxpayers. Impugned provisions involving mere differentiation will fall foul of both aspects of section 9(1) 56 if a
litigant can show that the state did not act in a rational manner when differentiating between individuals or groups of
individuals. This means that the state ‘should not regulate in an arbitrary manner or manifest “naked preferences” that serve to
legitimise governmental purpose’.57 What is required is that the state functions ‘in a rational manner’ 58 and that it does not
distinguish between people or groups of people in a way that is irrational.
This requirement of rationality has emerged as an extremely stringent test which is very difficult for any plaintiff alleging
mere differentiation to overcome.59 This requirement is made even more apparent by the Constitutional Court’s insistence that
there is no need for the state or other relevant actors to prove that the objective could not have been achieved in a better or
different way in such a case.60 As long as any rational relationship, in other words, the absence of arbitrariness, 61 is
demonstrated between the purpose sought to be achieved by the impugned provision and the means chosen by the provision, the
Court will find that the differentiation does not infringe section 9(1) of the Constitution. 62
Rationality is part of accountability and justification in a democratic state. It is important in a rationality enquiry ‘to identify
and examine the specific government object sought to be achieved by the impugned rule of law or provision’ and a court will not
rely on a generic general purpose identified.63 However, all the state has to show is that the purpose was neither arbitrary nor
irrational. It does not have to show that the purpose pursued was a wise one or one with which the Court agrees. 64
Where there is no discernible purpose for the differentiation, the Court will find the legislative provision to be in breach of
section 9(1). For example, in Ngewu and Another v Post Office Retirement Fund and Others ,65 the Court declared certain
sections of the Post Office Act 66 unconstitutional as they breached section 9(1) of the Constitution. This was because the
impugned provisions treated divorced spouses of employees of the Post Office differently from other divorced spouses whose
treatment is regulated by other legislation. The Constitutional Court found that this differentiation was irrational as it had no
basis. The different treatment was an anomaly that could not be explained in a rational manner. 67 As the different treatment was
not based on a ground like race or sex or gender, but on whether a person worked for the Post Office or another employer, the
Court relied on section 9(1) to invalidate the provisions of the Post Office Act. However, because the rationality test is applied
relatively strictly, the Court does not often invalidate legislation because it breaches section 9(1) of the Constitution.

12.2.4.3 Redress measures (affirmative action): section 9(2)

12.2.4.3.1 Basic approach

The question of the exact scope of constitutionally permissible redress measures (affirmative action) is one of the most hotly
debated and, for some, most controversial, constitutional law issues. Disagreement on this issue can be traced back to different
views about the extent to which the harmful consequences of racism and racial discrimination which were imposed by the
apartheid government continue to render present-day South Africa a fundamentally unfair place for many (if not all) black South
Africans. If we accept that the harmful effects of past racial discrimination stubbornly persist in society and that racism continues
to disadvantage black South Africans, the need for redress measures to overcome this will be apparent. For those who deny these
facts, however, redress measures – especially redress measures based on race – represent a form of reverse discrimination. As we
shall see, however, the Constitutional Court has clearly rejected the latter view in favour of the first. Section 9(2) states:

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.

This section recognises that the achievement of equality requires the state and other powerful institutions in society to take
positive steps to address the deep social and economic inequalities in society. In addition, the state and other powerful institutions
must also address the structures and systems in society that help to perpetuate this inequality. These structures and systems
prevent individuals from enjoying equal opportunities and benefits that will allow them to flourish because opportunities and
benefits are available to some people but not to others in society.68
This recognition lies at the heart of the notion of substantive equality discussed above. As indicated above, the substantive
notion of equality recognises that there are uneven race, class and gender levels and forms of social and systemic differentiation.
This type of differentiation continues to persist in South African society and requires positive action to dismantle it and to prevent

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 the creation of new patterns of disadvantage.69 As the Constitutional Court stated in Van Heerden, the precedent-setting case
on section 9(2), corrective or restitutionary measures are mandated by section 9(2) as part of a ‘credible and abiding process of
reparation for past exclusion, dispossession, and indignity within the discipline of our constitutional framework’. 70
The United States anti-discrimination approach regards restitutionary measures as an exception to the general equality and
non-discrimination guarantee. By contrast, the South African equality jurisprudence does not view such measures as a deviation
from or invasion of the right to equality guaranteed by the Constitution. These measures are not reverse discrimination or positive
discrimination.71 Instead, corrective or restitutionary measures are an integral part of our equality guarantee. They aim to
eradicate a system that perpetuates inequality and to address social and economic inequality to achieve equality in the long term.
South Africa is a country in transition from a society based on inequality to one based on equality. 72 Thus, the constitutional
order is committed to the transformation of our society from a grossly unequal society to one in which there is equality between
men and women and people of all races. In this fundamental way, our Constitution differs from other constitutions which assume
that all are equal and in so doing simply entrench existing inequalities. This constitutionally mandated transformation is part of an
ongoing process. It is not an end in itself but a means to an end: the achievement of equality in the long term. 73
Of course, there are profound difficulties that will have to be confronted in giving effect to the constitutional commitment of
achieving equality. This is because the measures that bring about transformation will inevitably adversely affect some members
of our society, particularly those people coming from previously advantaged communities. However, as we shall see, the interests
of those people negatively affected by such remedial measures must be balanced against the interests of those people who
suffered discrimination in the past and may very well continue to suffer from discrimination today. This is why section 9(2)
mandates positive measures. This means section 9(2) ‘imposes a positive duty on all organs of state to protect and promote the
achievement of equality – a duty which binds the judiciary too’. 74 In the absence of ‘a positive commitment progressively to
eradicate socially constructed barriers to equality and to root out systematic or institutionalised under-privilege, the constitutional
promise of equality before the law and its equal protection and benefit must, in the context of our country, ring hollow’. 75
A constitutional challenge to restitutionary measures – even based on any of the grounds of discrimination listed in
section 9(3) – must be tested against section 9(2). Once a court has determined that the measures comply with the requirements of
section 9(2), they cannot be presumed to be unfairly discriminatory and cannot be tested against section 9(3). 76 This means that if
it is shown that measures comply with section 9(2), this is a complete defence against any charge that the measures unfairly
discriminate against anyone.
The onus for an enquiry into the constitutionality of restitutionary measures differs from the onus in cases where it is alleged
that a person has been unfairly discriminated against on one of the grounds listed in section 9(3) in a situation where the
discrimination was not part of a set of restitutionary measures. In the latter case, once a court has established that there was
indeed discrimination on one of the grounds listed in section 9(3), the onus of showing that the discrimination is not unfair rests
with the party defending the different treatment. However, in cases where the constitutionality of restitutionary measures is
attacked, the onus rests with the party who alleges that the measures are unconstitutional. Legislative and other measures, which
properly fall within the provision of section 9(2), do not attract a presumption of unfairness. 77

CRITICAL THINKING

The aim of redress measures: equality of opportunity or equality of outcomes?

When considering the aim of redress measures (as with all measures aimed at achieving substantive
equality), the question arises as to the exact end goal of such measures. Are we striving to achieve equality
of opportunity or equality of outcomes? Fargher presents the following thoughtful argument for the equality
of outcomes:

If you lean just enough against the window of your business class seat to discomfort yourself,
you can see the shanty towns as you come into land at Cape Town International Airport. South
Africa is unequal. And we know it. In fact, we are told in multiple headlines that South Africa is
the most unequal country in the world. But what we aren’t told is what that means, why it matters
and what we should do to respond.

Inequality, as most people think of it, is simply the existence of both rich and poor. In other
words, there is some inequality in the outcome of people’s lives. If we interrogate ourselves, I
think many people would find that it is not inequality of outcomes that is so problematic. If I

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 choose not to work and live a modest, subsistence lifestyle, I don’t think many people would
think I deserve to earn as much as a teacher or doctor that works many hours a day. Really, what
many people find inherently objectionable is inequality of opportunity.

Many libertarians will tell you this and I am sure a couple of CEOs are nodding their head in
agreement, thinking to themselves, “That’s right. It’s not about taxing my income anymore, it’s
about fixing education so that everyone has the opportunity to work as hard as I have for my
money.” But in reality, there still seems to be something so unsettling about driving from
Alexandra township through to Sandton. There seems to be something so wrong with the
inequality of outcomes in South Africa that must prompt us to look past inequality of opportunity
and focus on the sheer inequality of outcomes. And there is.

I would argue that there are three primary reasons why South Africa needs to address inequality
of outcomes. First, the extreme spectrum of wealth in South Africa means the very poor simply
do not have sufficient means to lead a dignified and humane life. We have a responsibility to
provide a minimum standard of life to our fellow human beings. Second, South Africa is not a
society where inequality of outcomes has arisen as the result of chance.

Instead, we can identify the unjust acts under apartheid and colonialism that specifically
engineered the repression and robbery of black people in our society. While most of the laws
may be gone, there remains the obligation to ensure corrective justice. This raises difficult
questions of blame, guilt and how one practically ensures restitution in the face of
intergenerational injustice.

These two questions of basic standards of living and restitution, whether land or money, have
been debated at length. I, however, think there is a third, more nuanced reason that demands our
consideration. The third reason is that inequality of outcomes fundamentally obscures our
conception of what it means to have equal opportunity and thus hinders our ability to deliver a
society in which we maximize equality of opportunity.

Even a society with perfect equality of opportunity suffers from the fact that unequal outcomes
result in unequal power distribution. This power is used to favour elites. At first, I am sure your
thoughts turned to business deals going to the politically connected or corporates colluding for
illegitimate profits. Rather turn your thoughts to the more subtle and morally ambiguous ways in
which society operates.

What about the inheritance you received or plan to leave? What about places in top schools for
children of alumni, large donors or simply those whose parents can afford it? Or the jobs and
internships you gave to the son of a friend or the daughter of a colleague?

Even well intentioned power brokers that explicitly work to create a society truly characterized
by equality of opportunity are necessarily required to decide what the concept of opportunity
means and what the barriers to equality of opportunity are. And extreme inequality of outcomes
means that those in power may not know what the barriers to opportunities are. In South Africa’s
case, this is at an extreme.

The result of apartheid is a society that is starkly segregated in such a way that private power,
economic class, culture, geography and race are largely divided along the same lines. The result
is that white middle-class South Africans can live their lives in such a way that they rarely have
to interact on the terms of the average, poor black South African. Sure, increasingly there are
instances where the `best friend‘ might be black but he is likely to have interacted on the terms
of white South Africans: he’s middle class, he attended his model C school and forked out the
R50 to go watch movies at the mall.

This is a dangerous situation where the influential in society – and here I mean us: the white
professionals, professors, business leaders – do not understand the extent and nature of the
inequality of opportunities. In fact, without structures to ensure a proliferation of views of what
the conception of equal opportunity is, it is difficult to even know what needs to be done to
ensure it … .

Furthermore, at the many interviews I have done in my life, almost every company says they
want a candidate who will get on with the team, fit into the company’s “culture” or who the boss

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 will enjoy spending 10 hours a day working with. How can that person be a poor black person if
the rest of the team are white, middle-class men who have never engaged on the terms of the
average black South African?

Similarly, it’s often asked why Africans rarely turn entrepreneurs and seize the opportunities that
BEE has offered. But the decision of striking it out on your own is heavily influenced by your
attitude toward risk, your role models and your community’s expectations. Can you even
understand the barriers to equal opportunity in entrepreneurship that community and personal
mentalities impose on someone who’s grown up in a society characterized by generational
destitution versus someone who’s been surrounded by successful business people?

What this argument should illustrate is that there exists an inherent tension between equality of
opportunity and equality of outcomes. Being aware that inequality of outcomes limits our ability
to ensure a society that strives for equality of opportunity, we may need to adopt policies that
prima facie work against equality of opportunity.

For example, we need AA appointments in companies so that that person will one day be in
management and able to say, “These are the difficulties people growing up in the townships of
Eldorado Park face. I understand them and so I am not adverse to the person who offers me a
soft handshake and I love talking with her about memories of shisa nyama on Sundays”.

To what extent we need to make that trade-off depends on how well we understand the lives of
our fellow countrymen. Unfortunately in South Africa, there are few public spaces we all interact
in, few public goods we all share and cross race, class and cultural understanding must be one
of the poorest in the world.

This reality needs to inform our discussions of policy in general. When we consider policies like
a year of compulsory community service for school-leavers, most of the debate surrounds the
economic impact but what about the role such a policy would have in creating a space where the
poor and the rich, black and white, interact? Or should all school-goers learn an African
language?

While personally I thought it was a terrible idea, with little to no direct economic benefit, I have
come to realise that perhaps in the context of allowing our future power brokers to interact and
understand South Africa on the average South African’s term, it could be immensely valuable.

Alexis de Tocqueville, a French philosopher, remarked when he arrived in America that he’d
never seen a country so free and equally led. He wasn’t amazed by the fact that everyone earned
the same, but that the equality meant that leaders governed whilst fully cognizant of the
circumstances of their fellow men.

Inequality, of both outcomes and opportunity, is so problematic in South Africa because we have
opportunities being ever suppressed for the poor and a corporate and government leadership
that is becoming ever more out of touch with those realities.78

12.2.4.3.2 The test for redress (affirmative action) measures in terms of section 9(2)
To determine whether a set of corrective measures complies with section 9(2) and is therefore constitutionally valid, a court will
focus on three distinct questions:
• Do the measures target persons or categories of persons who have been disadvantaged by unfair discrimination?
• Are the measures designed to protect or advance such persons or categories of persons?
• Do the measures promote the achievement of equality in the long term?

a) Do the measures target persons or categories of persons who have been disadvantaged by unfair discrimination?
The first question focuses on the group that is being targeted for advancement because it was previously subjected to unfair
discrimination and continues to suffer from the effects of that discrimination. With section 9(3), the focus is on the effect of
non-restitutionary discriminatory measures on those people complaining of discrimination. By contrast, this requirement asks
whether the right group was targeted for advancement or whether undeserving groups or individuals will benefit from the
restitutionary measures. A court asks whether the programme of redress is designed to protect and advance a disadvantaged
class. This means that the measures of redress chosen must favour a group or category designated in section 9(2). The

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 beneficiaries, either individuals or categories of persons who belong to an identifiable class defined by their race, sex, gender,
disability or sexual orientation, must be shown to have been disadvantaged by unfair discrimination. Because the test focuses on
whether the group has been disadvantaged in the past by unfair discrimination, such groups include black (rather than white)
citizens; women (rather than men); gay men and lesbians (rather than heterosexuals); people living with disabilities (rather than
able-bodied people); and people living with HIV (rather than HIV-negative people).
The Constitutional Court has acknowledged the fact that it would be difficult, impractical or undesirable always to devise a
legislative scheme or programme that ‘purely’ or precisely targets the affected classes. ‘Within each class, favoured or otherwise,
there may indeed be exceptional or “hard cases” or windfall beneficiaries’. 79 The Court thus acknowledges that not all the
members of a class targeted to benefit from restitutionary measures may themselves have suffered from unfair discrimination or
may have been disadvantaged because of the effects of past discrimination. However, we contend that as long as patterns of
racism, sexism, homophobia or other prejudices exist in society, even those members of a class who may be economically
privileged would normally still suffer from the effects of past unfair discrimination. Nevertheless, not every single person who
benefits from a restitutionary programme needs to have been disadvantaged by unfair discrimination. What is required is that an
‘overwhelming majority of members of the favoured class are persons designated as disadvantaged by unfair exclusion’. 80

CRITICAL THINKING

Is the programme of redress designed to protect and advance a disadvantaged class?

The case of Van Heerden revolved around a remedial programme that targeted individuals who became
Members of Parliament (MPs) in 1994 by providing such members with more advantageous pension
benefits for a period of five years. The programme excluded individuals who were Members of the
apartheid Parliament and continued to serve in Parliament after 1994. The majority judgment found that this
remedial programme did indeed meet this first requirement.
The minority judgment of Mokgoro J in Van Heerden disagreed with the approach taken by the majority
about the precision with which a targeted class had to be defined. Mokgoro J pointed out that in this case
many beneficiaries who became MPs in 1994 were not black but indeed white. There were 251 members
elected to the national legislature for the first time in 1994. Of these, 53 were white. This means that only
79% of the beneficiaries of the higher rate were black. For the minority this meant that the restitutionary
measures were not tailored sufficiently narrowly to pass the first leg of the section 9(2) test. At the heart of
this disagreement was a disagreement about the level of scrutiny that the Court should impose on such
measures.81 Mokgoro justified her view as follows:

[S]ection 9(2) must be used only in appropriate cases and with great circumspection. The vision
of substantive equality and the need for transformation cannot be underestimated. For that
reason section 9(2), as an instrument for transformation and the creation of a truly equal society,
is powerful and unapologetic. It would therefore be improper and unfortunate for section 9(2) to
be used in circumstances for which it was not intended. If used in circumstances where a
measure does not in fact advance those previously targeted for disadvantage, the effect will be
to render constitutionally compliant a measure which has the potential to discriminate unfairly.
This cannot be what section 9(2) envisages.82

A possible reason for the majority’s application of this requirement in a relatively permissive manner may be
its recognition that for measures to fit snugly into the first requirement set out above, the measures may
well explicitly have to target a group that has been unfairly discriminated against. As Sachs J pointed out, in
the present case this was not done. Instead of race, the measures distinguished between members of the
legislature who became members in 1994 and others who were members of the non-democratic
Parliament, avoiding any mention of race. As Sachs J stated, ‘For the new scheme to have distinguished on
grounds of race or previous political affiliation between individual persons in this large and diverse new
generation of members of Parliament, would have been divisive and invidious.’ 83 By using other criteria as
a proxy for race (or sex or sexual orientation), those who craft a remedial scheme may choose not to rely
on the very categories used in the past to exclude and oppress people. This is an attempt to signal that we
should not accept these categories uncritically and that it is not advisable in the long term to entrench such
categories in law.
However, commentators have pointed out that race remains relevant in South Africa. As De Vos wrote:

But race hovers not far from the surface in private or other everyday settings: as an unspoken

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 presence, a (wrongly) perceived absence or as a painful, confusing, liberating or oppressive
reality in social, economic or other – more intimate – interactions between individuals or
between groups of individuals. In South Africa we cannot escape the fact that – despite the best
efforts of many – race insinuates itself into our responses to situations and people. Even when
we claim that we have escaped the perceived shackles of race, we are merely conrming its
presence by our stated yearning for its absence. And escaping poverty and joining the middle
class does not – as some have argued – free ‘black’ South Africans from the effects of racial
identity and race-based thinking. When I sit at a restaurant with my companion and the waiter
presents me, and not him, with the wine list or the bill, should I not assume that this is done
because I am ‘white’ and he is ‘black’? (I hasten to add that this has happened to me on many
occasions, regardless of the race of the waiter or, it must be said, regardless of whether my
companion is an actuary earning at least double my academic salary, or a relatively impecunious
graduate student.) When I see a young man walking a dog through the streets of the posh,
overwhelmingly ‘white’, and afuent suburb of Bantry Bay in Cape Town (as often happens in the
morning when I drive to work), will the story I make up about that man not differ depending on
whether he is ‘white’or ‘black’– even if, after a second or two, I will be startled by the deeply
problematic racial assumptions to which I might have fallen prey, and will try to correct myself?
84

b) Are the measures designed to protect or advance such persons or categories of persons?
The second requirement for a valid restitutionary programme is that the measure must be designed to protect or advance those
disadvantaged by unfair discrimination. In essence, the remedial measures are directed at an envisaged future outcome and must
be designed to achieve that outcome. The outcome could be to eradicate social and economic inequality between groups as well
as to eradicate the structures of advantage and privilege that help to perpetuate such inequality. However, a court will not require
the defenders of the scheme to show that the measures are necessary to achieve this goal. Nor will the court require the defenders
to show that the measures will definitely achieve the intended goals.
Instead, what is required is that the measures ‘must be reasonably capable of attaining the desired outcome’ of addressing the
effects of past unfair discrimination.85 ‘If the remedial measures are arbitrary, capricious or display naked preference, they can
hardly be said to be designed to achieve the constitutionally authorised end.’ 86 If it is clear that these measures are not
reasonably likely to achieve the end of advancing or benefitting the interests of those who have been disadvantaged by unfair
discrimination, they would not constitute measures contemplated by section 9(2).
It is also not required to show that the remedial measures are a necessity to disfavour one class in order to uplift another.
‘They are not predicated on a necessity or purpose to prejudice or penalise others, and so require supporters of the measure to
establish that there is no less onerous way in which the remedial objective may be achieved. The prejudice that may arise is
incidental to but certainly not the target of remedial legislative choice.’ 87 It is important to note that the onus here rests on the
party trying to convince the court that the remedial measures are unconstitutional and do not comply with section 9(2). The
person or institution attacking the remedial measures will have to show that the measures are not reasonably capable of achieving
the stated redress goals. It is possible to do this if it can be shown that the measures are arbitrary or ‘display a naked preference’.
88

c) Do the measures promote the achievement of equality in the long term?

The third requirement for a valid remedial programme is probably the most difficult and complex to grapple with but it is pivotal
for determining the constitutionality of the scheme. Whether a remedial scheme meets the requirements of section 9(2) may well
hinge on whether this last requirement is met. We contend that this third requirement requires a value judgment. A court would
have to make this value judgment in the light of all the circumstances. These circumstances include the history of marginalisation
and oppression of people based on race, sex, sexual orientation and other grounds, the current social and economic status of
various groups previously unfairly discriminated against, as well as the prevalence of racism, sexism, homophobia and other
forms of misrecognition still prevalent in society.
This third requirement asks whether the remedial measures promote the achievement of equality in the long term. What is
required is a balancing of different interests: the interests of those people suffering from the effects of past or ongoing unfair
discrimination on the one hand, and the interests of those people who benefitted from past unfair discrimination or continue to
benefit from the lingering effects of that discrimination on the other hand. In his concurring judgment in the Van Heerden case,
Sachs J explained how to balance these interests as follows:

Courts must be reluctant to interfere with [remedial] measures, and exercise due restraint when
tempted to interpose themselves as arbiters as to whether the measure could have been proceeded with

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 in a better or less onerous way. At the same time, if the measure at issue is manifestly overbalanced in
ignoring or trampling on the interests of members of the advantaged section of the community, and
gratuitously and flagrantly imposes disproportionate burdens on them, the courts have a duty to
interfere. Given our historical circumstances and the massive inequalities that plague our society, the
balance when determining whether a measure that promotes equality is fair will be heavily weighted in
favour of opening up opportunities for the disadvantaged. That is what promoting equality
(section 9(2)) and fairness (section 9(3)) require. Yet some degree of proportionality, based on the
particular context and circumstances of each case, can never be ruled out.89

In other words, a court will be slow to strike down remedial measures targeting black South Africans, women, people with
disabilities, gay men and lesbians or other groups who have suffered from unfair discrimination in the past. However, the court
will not automatically find that such measures comply with section 9(2). The court will have to look at the effect that a measure
has on the advantaged section of the community (white citizens, men, able-bodied individuals, heterosexuals or other groups who
benefitted from past unfair discrimination). The court has to consider the effect of the measure on those excluded by the measure
in the context of our broader society. The court may find that measures that completely exclude or are aimed purely at punishing
those people who belong to a group that benefitted in the past disproportionately burden the previous beneficiaries of
discrimination. However, this does not mean that measures may not have the effect of disadvantaging those who benefitted from
the past system of discrimination. As Justice Moseneke explained in Van Heerden:

It must be accepted that the achievement of this goal may often come at a price for those who were
previously advantaged. Action needs to be taken to advance the position of those who have suffered
unfair discrimination in the past. […] However, it is also clear that the long-term goal of our society is
a non-racial, non-sexist society in which each person will be recognised and treated as a human being
of equal worth and dignity. Central to this vision is the recognition that ours is a diverse society,
comprised of people of different races, different language groups, different religions and both sexes.
This diversity, and our equality as citizens within it, is something our Constitution celebrates and
protects. In assessing therefore whether a measure will in the long term promote equality, we must
bear in mind this constitutional vision. In particular, a measure should not constitute an abuse of
power or impose such substantial and undue harm on those excluded from its benefits that our
long-term constitutional goal would be threatened (our emphasis).90

A court must therefore look at the effect the remedial measures will have on the group or groups who may be negatively affected
or who may not be targeted by the measures. In this regard, there appear to be similarities between this third requirement of the
test and the test for unfair discrimination in terms of section 9(3) discussed below. 91 For example, a programme aimed at
addressing the effects of past racial discrimination may negatively affect white South Africans. Employment equity legislation or
rules designed to accommodate more black students or women at a university may affect some white applicants for jobs or
university places who may not be appointed or may be denied a place to study at the university because of the remedial
programme. This in itself will not invalidate the programme. However, where the measures taken are so extreme that they send a
signal that the equal dignity of white applicants is not respected, the programme may be invalidated. Thus, where an admissions
policy takes race into account and the effect of that policy is to exclude the vast majority or all of the white applicants, the
programme would probably not pass constitutional muster.92 In effect, this is a value judgment importing an internal fairness
requirement into the test for a valid remedial programme.93

PAUSE FOR REFLECTION

Fairness and proportionality considerations when applying section 9(2)

The question whether the test for remedial measures as set out by Moseneke J in the Van Heerden case
acquires ‘bite’ from the third requirement set out above has elicited some debate in academic circles.
Pretorius argues that it is unclear whether this requirement goes ‘beyond mere rationality testing’, saying
that this depends on our interpretation of the Moseneke judgment and especially the third requirement
postulated by him.94 According to Pretorius, the third requirement as explained by Moseneke J and
discussed above:

can be understood narrowly or broadly. If the ‘promotion of equality’ in this context is

understood narrowly, i.e. as synonymous with remedial or restitutive equality, it will in effect not
add anything additional to the previous two rationality requirements and cumulatively the s 9(2)

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 conditions for the constitutional validity of affirmative action will stay within the confines of a
rationality inquiry … The equation is also unequivocally implicit in the observation that ‘it would
be inimical to the pursuit of substantive equality if the State was required to show that each
restitutionary measure that it enacted was fair, as would be required by s 9(3)’. Affirmative action
measures ought therefore to be judged solely in terms of whether they serve the goal of
‘advancing those previously disadvantaged’. If on the other hand the phrase ‘to promote the
achievement of equality’ in s 9(2) is understood more broadly and inclusively, i.e. recognising
and balancing the equality aspirations of all, then considerations regarding the fairness and
proportionality of the impact of affirmative action measures will inevitably surface. This can be
illustrated with reference to the majority opinion itself. … Moseneke J in his actual application of
the third s 9(2) criterion – and contrary to his initial starting point – leaned towards the broader
interpretation. The realisation of the remedial objective is balanced with reference to the ideal of
the promotion of an inclusive ‘non-racial, non-sexist society in which each person will be
recognised and treated as a human being of equal worth and dignity’. Mindful of this
‘constitutional vision’, remedial measures should therefore ‘not constitute an abuse of power or
impose such substantial and undue harm on those excluded from its benefits that our long-term
constitutional goal would be threatened’. That fairness and proportionality considerations are
invariably brought to the fore once this direction is taken, is clearly evidenced by Justice
Moseneke’s application of the third requirement to the facts of the case. In his consideration of
the question whether the evidence revealed an abuse of power or the existence of such a degree
of substantial and undue harm that could be construed as a threat to the realisation of the
long-term goal of equality, he referred to factors normally at issue when the fairness of
discriminatory measures is examined. He considered the question ‘whether the adverse impact
of the employer contribution scheme on [the sub-class that the complainant belonged to] is such
as to render it unfairly discriminatory’. He also specifically noted the relevance of the fact that
the complainant did not claim that the aggrieved class of parliamentarians is in any sense
vulnerable or marginalised or that in the past these parliamentarians were unfairly excluded or
discriminated against, or that the impugned pension scheme could be considered as invasive of
their dignity.95

We contend that this third requirement does require a balancing of interests and therefore does import the
fairness requirement in a different guise into the section 9(2) analysis. This does not mean that a court will
easily invalidate an affirmative action policy, but where the policy overburdens the excluded group, it will
have the constitutional duty to do so.

12.2.4.4 Unfair discrimination: section 9(3)

In some situations a legislative provision differentiates between people or groups of people on one or more of the grounds listed
in section 9(3) or on analogous grounds (discussed below) and therefore discriminates against an individual or a group of people.
Where this discrimination does not comply with the requirements for a remedial programme in section 9(2), a court will rely on
section 9(3) to determine whether the discrimination is unfair and hence in conflict with the equality provisions of the
Constitution. In some cases there may well be a rational relationship between the differentiation in question and the governmental
purpose which is proffered to validate it and the requirements of section 9(1) are met. In other cases the measures may purport to
give effect to an affirmative action or remedial programme but do not meet the requirements of section 9(2). In these cases, the
court has to ask whether the differentiation may still constitute unfair discrimination as envisaged by section 9(3). 96
In Harksen v Lane NO and Others, the Constitutional Court stated that a determination of whether differentiation amounts to
unfair discrimination in terms of section 9(3) requires a two-stage analysis:
• First, the court has to determine whether the differentiation in fact amounts to discrimination.
• Second, if it does, the court has to determine whether the discrimination amounts to unfair discrimination. 97

The Court thus distinguished between discrimination and unfair discrimination, arguing that not all forms of discrimination are
unfair. Where discrimination can be proven not to be unfair, the legislative provision thus does not fall foul of section 9(3). 98
In the first of the two stages of analysis, a court must determine whether the differentiation in fact constitutes discrimination.
In Harksen, Goldstone J further subdivided the enquiry following the arguments first set out in Prinsloo. He stated that
section 9(3) contemplates two categories of discrimination and that courts should deal with each one in a different way. 99 The

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 first category is differentiation based on one or more of the sixteen grounds specified in section 9(3), in other words, grounds
such as race, sex, gender and sexual orientation. The second category is differentiation on a ground not specified in section 9(3)
but analogous to such grounds.100 The Court in Harksen summarised the steps as follows:

(b)(i) Firstly, does the differentiation amount to ‘discrimination’? If it is on a specified ground, then
discrimination will have been established. If it is not on a specified ground, then whether or not there is
discrimination will depend upon whether, objectively, the ground is based on attributes and
characteristics which have the potential to impair the fundamental human dignity of persons as human
beings or to affect them adversely in a comparably serious manner.

(b)(ii) If the differentiation amounts to ‘discrimination’, does it amount to ‘unfair discrimination’? If it

has been found to have been on a specified ground, then unfairness will be presumed. If on an
unspecified ground, unfairness will have to be established by the complainant. The test of unfairness
focuses primarily on the impact of the discrimination on the complainant and others in his or her
situation.101

12.2.4.4.1 Does the differentiation amount to discrimination?

The text of section 9(3) prohibits unfair discrimination. This means that discrimination can be either fair and hence
constitutionally permissible, or unfair and hence constitutionally impermissible. Although the term, ‘discrimination’, carries a
pejorative meaning in general language, section 9(3) – in line with the substantive notion of equality – does not prohibit all forms
of discrimination but only impermissible or unfair forms of discrimination.102
The starting point of this enquiry is the text of section 9(3) which sets out no less than 16 prohibited grounds of
discrimination, namely race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age,
disability, religion, conscience, belief, culture, language and birth. When a legislative provision differentiates against anyone or
any group on any of these grounds, a court will find that the differentiation amounts to discrimination. The court must determine
objectively whether differentiation has occurred on a specified or an unspecified ground.103 This means that the intention of the
alleged discriminator is not relevant to the enquiry as to whether discrimination occurred. (However, intention may be relevant to
determine whether the discrimination was fair or unfair.104) The court has to decide whether the differentiation is based on one
of the specified grounds listed in section 9(3), for example whether the legislative provision distinguishes between individuals
who are black or white; male or female; gay or straight; able-bodied or disabled. Once the court has established that the
distinction is indeed based on one of these 16 listed grounds, it will assume that the differentiation is discriminatory. However,
the party seeking to uphold the validity of the legislative provision can still show that the discrimination is not unfair. This is so
because section 9(5) explicitly states that ‘[d]iscrimination on one or more of the grounds listed in subsection (3) is unfair unless
it is established that the discrimination is fair’.105 This means that a finding that there was discrimination will never end the
enquiry as one of the parties then has to try to convince the court that the discrimination is fair or unfair as the case may be.
It is important to note that section 9(3) does not only prohibit unfair discrimination on the grounds specifically listed in that
section. Section 9(3) also prohibits unfair discrimination against anyone on one or more grounds, ‘ including’ those listed in
section 9(3). The word ‘including’ suggests that the list set out in section 9(3) is not a closed list and that distinctions made
between people or groups of people on the basis of other grounds not listed may also amount to discrimination. Such grounds are
called analogous grounds. This allows the court to discover new forms of discrimination not explicitly recognised by the drafters
of the Constitution.
A court is required to make an objective assessment about two important questions to determine whether discrimination has
occurred on an analogous ground:
• First, the court must determine whether the differentiation relates to the unequal treatment of people based on other
‘attributes and characteristics attaching to them’ which are not related to the specified grounds but are nevertheless
comparable to them.106
• Second, the court has to determine whether this differentiation has the effect of treating persons differently in a way which
‘impairs their fundamental dignity as human beings, who are inherently equal in dignity’ or affects a person adversely in ‘a
comparably serious manner’.107

Regarding the first aspect of this enquiry, in Harksen the Constitutional Court cautioned against a narrow definition of these
attributes and characteristics. The Court stated that when a court is called on to make such a determination, it must look at
whether the differentiation is based on attributes and characteristics comparable in some way or another with those specified
grounds:

What the specified grounds have in common is that they have been used (or misused) in the past (both
in South Africa and elsewhere) to categorise, marginalise and often oppress persons who have had, or

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 who have been associated with, these attributes or characteristics. These grounds have the potential,
when manipulated, to demean persons in their inherent humanity and dignity.108

The second aspect of this enquiry is the impairment of human dignity or a comparably serious disadvantage. It seems as if the
Constitutional Court has in mind an open-ended process in which it may discover, over time, more differentiations which are not
based on specified grounds but which, in its opinion, are based on grounds similar to those specified. From the decided cases it
does seem, however, as though it will not be too difficult for complainants who belong to a marginalised or vulnerable group to
prove that a differentiation was based on a characteristic which has the potential to impair their fundamental human dignity or to
affect them adversely in a comparably serious manner. What is required is to show that the ground on which a complainant is
treated differently from others has the same characteristics as those listed in section 9(3). In Hoffmann v South African Airways,
109 the Constitutional Court found that where HIV-positive individuals are treated differently on the basis of their HIV status,
this constitutes discrimination on the analogous ground of HIV status. The Court justified its reasoning as follows:

People who are living with HIV constitute a minority. Society has responded to their plight with
intense prejudice. They have been subjected to systemic disadvantage and discrimination. They have
been stigmatised and marginalised. As the present case demonstrates, they have been denied
employment because of their HIV positive status without regard to their ability to perform the duties
of the position from which they have been excluded. Society’s response to them has forced many of
them not to reveal their HIV status for fear of prejudice. This in turn has deprived them of the help
they would otherwise have received. People who are living with HIV/AIDS are one of the most
vulnerable groups in our society. Notwithstanding the availability of compelling medical evidence as to
how this disease is transmitted, the prejudices and stereotypes against HIV positive people still persist.
In view of the prevailing prejudice against HIV positive people, any discrimination against them can,
to my mind, be interpreted as a fresh instance of stigmatisation and I consider this to be an assault on
their dignity. The impact of discrimination on HIV positive people is devastating. It is even more so
when it occurs in the context of employment. It denies them the right to earn a living. For this reason,
they enjoy special protection in our law.110

PAUSE FOR REFLECTION

What other grounds of often invisible prejudice exist in society?

At present the Constitutional Court has recognised that apart from HIV status, differentiation on the basis of
not being a South African citizen also constitutes an analogous ground of discrimination.111 But what about
other kinds of distinctions that people generally make? Consider the following extract from an article on the
manner in which people generally discriminate in favour of tall and attractive people:

We can’t all be Brad Pitt or Angelina Jolie, or sculpted like a 6 foot 5 inch Olympic athlete, but
what we may lack in looks, we can make up in intelligence or personality. Or so the common
argument goes, which may be more myth than fact.

The British National Child Development study conducted by Daniel Nettle of the Open University
shows that the taller men are, the less likely they were to be single or childless, concluding that
taller men are deemed more sexually attractive and more likely to find a mate. “In choosing a
husband, size matters,” Dr. Nettle argues, echoing a well-known phrase. A study by researchers
at the University of Florida, the University of North Carolina and the University of Pittsburgh
found tall people earned considerably more money throughout their careers than shorter
workers. Not that all men who are successful are necessarily tall or attractive. For example, Bill
Gates is 5 foot 9 inches; Jack Welch at 5 feet 8 inches and billionaire Jim Pattison at barely 5 feet
7 inches. Most male movie stars such as Tom Cruise and Jack Nicholson are well below the
average male height …

According to Dr. Gordon Patzer, who has concluded 3 decades of research on physical
attractiveness, human beings are hard-wired to respond more favorably to attractive people:
“Good-looking men and women are generally regarded to be more talented, kind, honest and
intelligent than their less attractive counterparts.” Patzer contends, “controlled studies show

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 people go out of their way to help attractive people – of the same sex and opposite sex –
because they want to be liked and accepted by good-looking people.” Even studies of babies
show they will look more intently and longer at attractive faces, Patzer argues. 112

A university study conducted in the USA further found that unattractive employees are more likely the
subject of rude, uncivil and even cruel treatment by their co-workers.113 Does this mean that how a person
looks should become an analogous ground on which discrimination could be alleged? What other grounds
of often invisible prejudice exist in society and are taken for granted by all? Should we develop the South
African jurisprudence to take cognisance of the various ways in which people are treated badly not through
any fault of their own, but because they have attributes and characteristics that many people implicitly or
explicitly use to judge them more harshly?

The prohibition on discrimination applies to both direct and indirect discrimination. This must not be confused with listed and
analogous grounds of discrimination discussed above. Direct discrimination occurs where a provision specifically differentiates
on the basis of either a listed or an unlisted ground. For example, a legislative provision that differentiates between men and
women or between HIV-positive and HIV-negative people discriminates directly. Thus, the previous common law definition of
marriage as being between a man and a woman explicitly excluded same-sex couples from the definition and hence directly
discriminated against gay men and lesbians on the basis of sexual orientation. 114
Indirect discrimination occurs where certain requirements, conditions or practices, while appearing neutral, actually have
an effect or result that is unequal or that disproportionately affects a group defined in terms of a listed or analogous ground. For
example, in the South African context with its deeply entrenched racialised residential patterns, a measure that treats people in
one geographical area differently from people living in another geographical area may constitute indirect racial discrimination.
This was the case in City Council of Pretoria v Walker 115 where the Constitutional Court pointed out that it was necessary to
include indirect discrimination in the ambit of section 9(3) to ensure that we focus on the consequences rather than the form of
conduct. This is necessary because conduct which may appear to be neutral and non-discriminatory may nonetheless result in
discrimination.116

PAUSE FOR REFLECTION

The problem of hidden forms of discrimination

In S v Jordan and Others (Sex Workers Education and Advocacy Task Force and Others as Amici Curiae,
117 the majority of judges of the Constitutional Court rejected an argument that a legislative provision that
criminalised the conduct of sex workers but not the clients of sex workers discriminated indirectly against
women. The relevant section made a distinction between the prostitute and the customer. It was argued
that although the section targeted all sex workers and was therefore gender neutral, it nevertheless
discriminated on the basis of gender because it had a more severe impact on women as the vast majority
of sex workers are women and the vast majority of clients of sex workers are men. The majority held that
the sex worker is engaged in the business of commercial sex and that one of the ways of curbing
commercial sex is to strike at the ‘merchant’ by means of criminal sanctions. The differentiation between
the dealer and customer was a common distinction that is made in a number of statutes and therefore could
not be said to constitute indirect discrimination.118 The minority judgment disagreed with this view. The
judgment by O’Regan J and Sachs J explains their position as follows:

Prostitutes and their customers engage in sexual activity, which is one of the constitutive
elements of the relationship between men and women in all societies. As partners in sexual
intercourse, they both consent to and participate in the action which lies at the heart of the
criminal prohibition. There are only three differences between them. The first is that the one pays
and the other is paid. The second is that in general the one is female and the other is male. The
third is that the one’s actions are rendered criminal by [the impugned provision] but the other’s
actions are not. Moreover, the effect of making the prostitute the primary offender directly
reinforces a pattern of sexual stereotyping which is itself in conflict with the principle of gender
equality. The differential impact between prostitute and client is therefore directly linked to a

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 pattern of gender disadvantage which our Constitution is committed to eradicating. In all these
circumstances, we are satisfied that, as in Walker’s case, this is a case where an apparently
neutral differentiating criterion producing a markedly differential impact on a listed ground
results in indirect discrimination on that ground.119

The importance of prohibiting indirect discrimination is that often discrimination is hidden or disguised by
those who wish to discriminate: they utilise seemingly neutral criteria to deny members of a certain group
access to goods and benefits in the hope that this discrimination will not be detected. If indirect
discrimination is not prohibited, it would therefore make it very difficult to address the problem of these
hidden forms of discrimination. Whenever a club or bar refuses a patron entry to that club or bar (as still
happens) 120 based on his or her dress, for example, and that patron happens to be black, the excluded
patron would be able to show that indirect discrimination had occurred if he or she could show that other
white patrons who were dressed in a similar manner were admitted to the bar or club.

12.2.4.4.2 Is the discrimination unfair?

Because the aim of section 9 of the Constitution is the pursuit of substantive equality, not all forms of discrimination will be
found to be unconstitutional. Once it is shown that the differentiation constitutes discrimination – either on a ground listed in
section 9(3) or on an analogous ground and whether direct or indirect – the enquiry moves to the question of whether the
discrimination is fair or unfair. As we have seen, when discrimination occurs on a listed ground, it is presumed, in accordance
with section 9(5), that the discrimination is unfair and hence unconstitutional.
However, it is possible to rebut the presumption and establish that the discrimination is not unfair. 121 In other words, the
complainant must establish that the differentiation is based on one or more of the specified grounds in order for the (rebuttable)
presumption of unfair discrimination to be of effect. Once this has been established, it then becomes the duty of the other party to
rebut the presumption of unfairness and, instead, to show that the discrimination is in fact fair. If the discrimination is on a ground
not listed in section 9(3), the onus to prove that the discrimination is unfair remains with the party attacking the constitutionality
of the legislative provision. Either way, one of the parties has to engage with the requirements for fair versus unfair
discrimination. The question of how to determine whether discrimination is fair or unfair therefore remains relevant, regardless of
whether the discrimination is on a listed or unlisted ground.
According to the Constitutional Court, the relevant party will be able to prove the unfairness of the discrimination with
reference to the fact that at the heart of the prohibition of unfair discrimination lies a recognition that the purpose of the
Constitution is the establishment of a society in which all people are accorded equal dignity and respect regardless of their
membership of particular groups. As the Court remarked in Harksen, the prohibition on unfair discrimination ‘provides a bulwark
against invasions which impair human dignity or which affect people adversely in a comparably serious manner’. 122 This remark
seems to imply that any determination of the unfairness of the discrimination depends on whether the human dignity of the
complainant has been impaired.123 The Court therefore stressed that what is important is that the enquiry focus on the impact of
the discrimination on the victim.124 To determine whether the discriminatory provision has had an unfair impact on a
complainant, a court must consider various factors. Although there is no closed list of factors, the Constitutional Court in the
Harksen case highlighted the following factors to guide this enquiry: 125
(a) ‘[T]he position of the complainants in society, whether they have suffered in the past from patterns of disadvantage, whether
the discrimination in the case under consideration is on a specified ground or not’: The examination is often backward
looking so as to establish the historical factors that led to patterns of group disadvantage and harm. 126 A group of
complainants can be vulnerable for a range of often interrelated reasons. They can belong to a group that is economically
marginalised 127 and/or suffers from stigmatisation, marginalisation or prejudice, for instance because of racism, sexism,
homophobia or HIV stigmatisation,128 and/or political minority status.129 It is more difficult to show that discrimination
against those who have suffered from past or ongoing discrimination is fair than it is to show that discrimination against
those who have benefitted from past discrimination is unfair. Therefore, discrimination against white people, men,
heterosexuals and able-bodied individuals is easier to justify as fair than discrimination against black people, women, gay
men and lesbians and disabled individuals.
(b) ‘[T]he nature of the provision or power and the purpose sought to be achieved by it’: If the purpose of the provision is not
directed at impairing the complainants’ human dignity, but is aimed at achieving a worthy goal such as, for example, the
furthering of the achievement of substantive equality or some other important societal or legislative goal, this may tip the
scales in favour of a finding that the discrimination is fair. For example, a legislative provision that prohibits blind people
from acquiring a driver’s licence discriminates against a group on the basis of disability. However, this discrimination may
well be found to be fair because the discrimination is aimed at achieving an important purpose, namely to ensure road safety.

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 The more important and pressing the purpose of the discrimination is, the more likely that a court will find the discrimination
to be fair.
(c) With due regard to the factors mentioned above as well as any other relevant factors, a court must then ask to what extent
‘the discrimination has affected the rights or interests of the complainants and whether it has led to an impairment of their
fundamental human dignity or constitutes an impairment of a comparably serious nature’: The more invasive the nature of
the discrimination is, the more likely the discrimination will be held to be unfair. For example, in National Coalition for Gay
and Lesbian Equality and Others v Minister of Home Affairs and Others , the Constitutional Court found that the
discrimination against gays and lesbians was ‘severe’ since ‘no concern, let alone anything approaching equal concern’ was
shown towards the group.130 In other words, a court must ask whether, given the factors above, it would be fair to
discriminate against a group. It will not be fair if the discrimination fundamentally affects the human dignity of the group of
complainants.

This contextual test is aimed at protecting all individuals in society without hampering the achievement of substantive equality
which provides that individuals belonging to different groups may have to be treated differently in certain circumstances.
This analysis acknowledges the fact that a determination of unfair discrimination cannot be made in the abstract. The
determination must take into account South Africa’s particular history as well as the structural inequality in our society which
promotes and perpetuates the subordination of certain individuals and groups. 131 Both the social and economic effects of past
discrimination as well as the continuing prejudice and stigmatisation of people belonging to disfavoured groups frame this
contextual enquiry into the fairness or unfairness of the discrimination.

PAUSE FOR REFLECTION

An example of indirect discrimination

It will be helpful to consider an example to understand the application of section 9(3). Imagine the South
African Police Service Act 132 is amended to regulate the employment of police officers in the South
African Police Service (SAPS). A new section of the Act determines that no one shall be appointed to the
SAPS unless that person is at least 1,79 m tall and weighs at least 75 kg. The Minister argues that these
requirements are necessary because members of the SAPS encounter many strong and violent individuals.
Police officers therefore need to have the physical strength to subdue suspects.
A constitutional attack on the provision could be launched on the basis that the section indirectly
discriminates against women. This is because a disproportionate number of women compared to men are
shorter than 1,79 m. Although the provision does not directly exclude women from employment, the effect
of the provision would be to exclude most women from employment in the SAPS. When considering
whether this discrimination is unfair, a court will have regard to the fact that there is a long history of
discrimination against women, also in the employment field, which would weigh heavily in favour of a
finding of unfair discrimination. Given the fact that the purpose of the provision, although seemingly rational,
is not pressing because women officers will be armed and could be partnered with physically stronger male
colleagues, and given the severe impact of the provision on women, a court may well find that the
discrimination is unfair.

12.2.5 Non-statutory imposed discrimination: the Promotion of Equality and Prevention of

Unfair Discrimination Act 4 of 2000
As we have seen, a litigant may only rely on section 9 of the Constitution when attacking the constitutionality of legislative
provisions. In cases where a litigant alleges that discrimination has occurred on the basis of conduct by a public official, organ of
state or private individual or institution, he or she has to rely on the Promotion of Equality and Prevention of Unfair
Discrimination Act (PEPUDA).133 The PEPUDA was passed in fulfilment of section 9(4) of the Constitution which states: ‘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.’ This section affirms the horizontal application
of section 9 to ensure that not only discrimination by the state but also discrimination by private individuals or institutions is
prohibited.
Because of the principle of subsidiarity, litigants who claim that they have been discriminated against but who do not wish to
attack the constitutionality of legislation must rely on the provisions of the PEPUDA. 134 In the absence of a direct challenge to
the PEPUDA, courts must assume that the PEPUDA is consistent with the Constitution and must decide claims within its

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 parameters.135 For example, a policy by a bar or restaurant to reserve its facilities for white people only, a policy by a school not
to admit Rastafarian learners, and a decision by a Minister to employ only male officials in his department potentially constitute
invalid unfair discrimination. However, these policies or decisions will have to be attacked by relying on the provisions of the
PEPUDA.
The general principles regarding the application of section 9 of the Constitution, set out above, remain relevant as the courts
must interpret the PEPUDA in the light of the general principles developed by the Constitutional Court regarding the enforcement
of section 9. The enquiry into unfair discrimination set out in the PEPUDA includes factors normally taken into consideration
when dealing with section 9 as well as factors normally taken into account when dealing with section 36, the limitation clause.
136 This is because the PEPUDA deals with non-statutory instances of alleged discrimination not based on a law of general
application.
Section 1 of the PEPUDA defines discrimination as:

any act or omission, including a policy, law, rule, practice, condition or situation which directly or
indirectly:
( a) imposes burdens, obligations or disadvantage on; or
( b) withholds benefits, opportunities or advantages from,
any person on one or more of the prohibited grounds.

Prohibited grounds listed in section 1 of the PEPUDA include the 16 grounds listed in section 9(3) of the Constitution as well as:

( b) any other ground where discrimination based on that other ground –

(i) causes or perpetuates systemic disadvantage;
(ii) undermines human dignity; or
(iii) adversely affects the equal enjoyment of a person’s rights and freedoms in a serious
manner that is comparable to discrimination on one of the listed grounds’.

In other words, the PEPUDA prohibits discrimination on both listed and analogous grounds, just like section 9(3). Mirroring the
section 9 jurisprudence, the onus of proving or disproving unfair discrimination differs depending on whether the discrimination
is on a listed or on an analogous ground.137 The onus thus rests on the respondents to prove that discrimination on a listed
ground is fair.
Section 14 of the PEPUDA deals with the determination of fairness or unfairness. The section states:

(1) It is not unfair discrimination to take measures designed to protect or advance persons or
categories of persons disadvantaged by unfair discrimination or the members of such groups or
categories of persons.
(2) In determining whether the respondent has proved that the discrimination is fair, the following
must be taken into account:
( a) The context;
( b) the factors referred to in subsection (3);
(c) whether the discrimination reasonably and justifiably differentiates between persons
according to objectively determinable criteria, intrinsic to the activity concerned.
(3) The factors referred to in subsection (2)(b) include the following:
( a) Whether the discrimination impairs or is likely to impair human dignity;
( b) the impact or likely impact of the discrimination on the complainant;
(c) the position of the complainant in society and whether he or she suffers from patterns of
disadvantage or belongs to a group that suffers from such patterns of disadvantage;
( d) the nature and extent of the discrimination;
(e) whether the discrimination is systemic in nature;
( f) whether the discrimination has a legitimate purpose;
( g) whether and to what extent the discrimination achieves its purpose;
(h) whether there are less restrictive and less disadvantageous means to achieve the purpose;
( i) whether and to what extent the respondent has taken such steps as being reasonable in the
circumstances to–
(i) address the disadvantage which arises from or is related to one or more of the
prohibited grounds; or
(ii) accommodate diversity.

What is clear is that the PEPUDA allows a court to take into account a wider range of factors than those set out in the Harksen
case relating to section 9(3) of the Constitution to determine whether discrimination is fair or unfair. Some of the factors
mentioned in section 14 of the PEPUDA mirror those relied on by the Constitutional Court in section 9(3) cases. Other factors

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 seem to track more closely questions raised during a section 9(2) enquiry, while yet other factors track the limitation clause
enquiry. The Constitutional Court has not provided an expansive interpretation of this section so we must assume that its
section 36 and sections 9(2) and 9(3) analyses are all relevant when applying section 14 of the PEPUDA.
A contextual enquiry remains at the heart of a section 14 enquiry. Such a contextual enquiry takes account of the history of
the complainants and their position in society as well as the need for remedial measures to address the effects of past and ongoing
unfair discrimination. This is in order to advance the value of human dignity for all. Courts have a discretion to consider all the
relevant factors listed in section 14 and then to decide whether the discrimination is fair or unfair in the light of these factors. All
relevant factors relating to a specific case must be considered as part of a proportionality analysis to make an overall assessment
of whether the discrimination is fair or unfair. Not all factors listed in section 14 will be relevant in every case – it will always
depend on the facts of the specific case.
An innovation of section 14 can be found in section 14(2)( c) which requires a court to ask ‘whether the discrimination
reasonably and justifiably differentiates between persons according to objectively determinable criteria, intrinsic to the activity
concerned’. This section recognises that activities require individuals to possess inherent attributes or characteristics not shared
by everyone. Arguably, only a black man can play Othello in the Shakespeare play while only a white man can play AWB leader
Eugene Terreblanche in a movie about South Africa’s transition to democracy. Considering only members of a certain race for
one of these parts would discriminate on the basis of race, but, it could be argued, the differentiation is based on attributes
intrinsic to the playing of that part.
One aspect of the section 14 enquiry, which has elicited some discussion by the Constitutional Court, is the requirement that
a court must have regard to ‘whether and to what extent the respondent has taken such steps as being reasonable in the
circumstances to … accommodate diversity’.138 This factor is generally known as the requirement for reasonable
accommodation.
In MEC for Education: Kwazulu-Natal and Others v Pillay,139 the Constitutional Court had to decide whether the failure of
a school disciplinary code to take into account the religious or cultural practices of a Hindu learner unfairly discriminated against
her. Ms Pillay wanted to wear a nose stud to school as this formed part of her religious and cultural beliefs, but the school’s
disciplinary code prohibited this. At the heart of the case was whether the school had reasonably accommodated the minority’s
religious and cultural practices.
The Court explained that reasonable accommodation required institutions to ‘take positive measures and possibly incur
additional hardship or expense in order to allow all people to participate and enjoy all their rights equally’. 140 The aim is to
ensure that groups are not relegated to the margins of society because they do not or cannot conform to certain social norms. 141
At the heart of this principle is the need positively to accommodate diversity. ‘Those steps might be as simple as granting and
regulating an exemption from a general rule or they may require that the rules or practices be changed or even that buildings be
altered or monetary loss incurred.’ 142 The extent to which an institution or community should reasonably accommodate the
cultural and religious beliefs and practices of others is a difficult question. However, the Constitutional Court has argued that this
must be answered with reference to the specific context. As such, reasonable accommodation is ‘an exercise in proportionality
that will depend intimately on the facts’ of each case.143
When considering whether discrimination as defined by the PEPUDA is reasonable or not, ‘reasonable accommodation will
always be an important factor’.144 However, it would be wrong to reduce the test for fairness to a test for reasonable
accommodation. As the Constitutional Court explained in Pillay:

There may be circumstances where fairness requires a reasonable accommodation, while in other
circumstances it may require more or less, or something completely different. It will depend on the
nature of the case and the nature of the interests involved. Two factors seem particularly relevant.
First, reasonable accommodation is most appropriate where, as in this case, discrimination arises from
a rule or practice that is neutral on its face and is designed to serve a valuable purpose, but which
nevertheless has a marginalising effect on certain portions of society. Second, the principle is
particularly appropriate in specific localised contexts, such as an individual workplace or school,
where a reasonable balance between conflicting interests may more easily be struck. Even where
fairness requires a reasonable accommodation, the other factors listed in section 14 will always remain
relevant.145

What is clear is that when determining whether discrimination is fair or unfair, a court has to balance the various interests and has
to make a value judgment, guided by the factors set out in section 14 of the PEPUDA. Thus, an institution may discriminate
against a group who previously benefitted from unfair discrimination in order to address the effects of past and ongoing unfair
discrimination. In other words, the institution institutes affirmative action measures. This may well weigh heavily in favour of
finding the discrimination to be fair unless the considerations set out by the Constitutional Court when it applied section 9(2)
mitigates against such a finding. Similarly, where discrimination entrenches the privileges of those who benefitted from past
unfair discrimination or perpetuates the stigmatisation and marginalisation of disfavoured groups, it would be difficult for a court

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 to find that the discrimination was fair. It is therefore important when applying the section 14 criteria to have regard for the
Constitutional Court’s jurisprudence on the various subsections of section 9 of the Constitution.

PAUSE FOR REFLECTION

The principle of reasonable accommodation as it applies in the disability field

In Pillay, Ngcobo J explained the principle of reasonable accommodation as it applies in the disability field
in the following manner:

Disabled people are often unable to access or participate in public or private life because the
means to do so are designed for able-bodied people. The result is that disabled people can,
without any positive action, easily be pushed to the margins of society:

Exclusion from the mainstream of society results from the construction of a society based
solely on ‘mainstream’ attributes to which disabled persons will never be able to gain
access. Whether it is the impossibility of success at a written test for a blind person, or the
need for ramp access to a library, the discrimination does not lie in the attribution of untrue
characteristics to the disabled individual. The blind person cannot see and the person in a
wheelchair needs a ramp. Rather, it is the failure to make reasonable accommodation, to
fine-tune society so that its structures and assumptions do not result in the relegation and
banishment of disabled persons from participation, which results in discrimination against
them.146

The notion of reasonable accommodation is therefore a powerful tool to disturb often invisible norms which
prevail because these norms are shared by the majority or by economically and culturally powerful groups.
For example, municipal regulations that prohibit the slaughtering of animals in residential areas are based
on the cultural beliefs and practices of the white minority who do not generally slaughter animals during
major celebrations. The neutral rule prohibiting the slaughtering of animals is based on a seemingly rational
assumption that it is unhygienic to allow the slaughtering of animals in residential areas. This rule can
arguably be said to fail reasonably to accommodate the cultural beliefs and practices of many black South
Africans. Once this is accepted, the question is not whether such cultural practices of the majority should be
accommodated, but rather how to accommodate such practices while not negating the seemingly rational
aims of such regulations.

12.3 The right to human dignity

12.3.1 Introduction
As we indicated at the beginning of this chapter, dignity is one of the founding values of the Constitution and permeates many
aspects of the Constitution.147 As we have seen, the value of dignity is used to interpret the equality guarantees in section 9 of
the Constitution. Dignity also permeates the interpretation of other rights in the Bill of Rights, including social and economic
rights.148
However, dignity is not only one of the founding values of the Constitution, it is also an independent, self-standing,
enforceable right. Section 10 of the Constitution states that everyone has inherent dignity and the right to have their dignity
respected and protected. The right therefore implies an expectation to be protected from conditions or treatment which offends the
subject’s sense of his or her worth in society. In particular, treatment which is abusive, degrading, humiliating or demeaning is a
violation of this right.149 Moreover, conduct which treats the subject as non-human or less than human or as an object is
intolerable and contrary to section 10 of the Constitution.150
At the heart of the right to dignity is the assumption that each human being has incalculable human worth, regardless of
circumstances, and should be treated accordingly. This idea or value is ‘at the inner heartland of our rights culture’. 151 Dignity
can be viewed narrowly as a personal right associated with a person’s identity, 152 autonomy and moral agency.153 According to

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 Sachs J, the right to dignity necessarily entails that everyone has the same moral worth 154 as dignity entails an acknowledgement
of ‘the intrinsic worth of human beings’ and the recognition that ‘human beings are entitled to be treated as worthy of respect and
concern’.155 Moreover, human dignity demands that people be treated as unique individuals rather than as representatives of a
group.
South African courts have developed a comprehensive meaning of the right to human dignity. In light of the fact that the
Constitution permits reference to foreign law to interpret the right in the Bill of Rights, our courts have invoked the jurisprudence
of foreign jurisdictions to clarify the meaning of the concept of human dignity. Specifically, former Chief Justice Chaskalson
referred to the case of Law v Canada (Minister of Employment and Immigration) 156 in his academic paper concerning the
meaning of the right to human dignity.157 In the Law v Canada case, the Canadian Supreme Court explained human dignity as
follows:

Human dignity means that an individual or group feels self-respect and self-worth. It is concerned with
physical and psychological integrity and empowerment. Human dignity is harmed by unfair treatment
premised upon personal traits or circumstances which do not relate to individual needs, capacities, or
merits. It is enhanced by laws which are sensitive to the needs, capacities and merits of different
individuals, taking into account the context of their differences. Human dignity is harmed when
individuals and groups are marginalised, ignored, or devalued, and is enhanced when laws recognise
the full place of all individuals and groups within society.158

However, dignity can be viewed as including more than the individualised personal well-being of the bearers of rights.
Understood more broadly, dignity aims to create the opportunity for every individual to reach his or her full potential and to
experience complete freedom. In terms of this more encompassing view, ‘dignity, properly understood, secures the space for
self-actualisation’.159 If we view dignity as the conduit to achieve the more expansive notion of human freedom, it addresses the
entire set of factors – including social and economic factors – that may limit an individual’s agency. Ackermann J’s dictum in the
case of Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others is telling when he states:

Human dignity cannot be fully valued or respected unless individuals are able to develop their
humanity, their ‘humanness’ to the full extent of its potential. Each human being is uniquely talented.
Part of the dignity of every human being is the fact and awareness of this uniqueness. An individual’s
human dignity cannot be fully respected or valued unless the individual is permitted to develop his or
her unique talents optimally. Human dignity has little value without freedom; for without freedom
personal development and fulfilment are not possible. Without freedom, human dignity is little more
than an abstraction. Freedom and dignity are inseparably linked. To deny people their freedom is to
deny them their dignity.160

In the following sections we discuss the manner in which dignity as a value differs from dignity as a protected right. We also
explore the ways in which the Constitutional Court has used the right to dignity as a catch-all right to be invoked in cases where
none of the other rights are applicable.

12.3.2 Human dignity as a right and as a value

It is important to distinguish between dignity as a value invoked to interpret other rights in the Bill of Rights and dignity as a
free-standing right that can be relied on. Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v
Minister of Home Affairs and Others; Thomas and Another v Minister of Home Affairs and Others 161 is an important case for
the purpose of illustrating the fact that dignity operates as both a right and a value in our constitutional sphere. This case
concerned the right of spouses, dependent children and destitute, aged or infirm family members to remain in the country pending
an application for permanent residence status while all other family members were required to leave the country.
In light of the fact that s 25(9)(b) of the Aliens Control Act 96 of 1991 stipulated that such applications had to be considered
on their merits, these provisions necessarily authorised immigration officials and the Director General to refuse to issue or extend
such temporary permits. In the event that an application was rejected, the consequence was that a South African married to a
foreign spouse had to choose between going abroad with his or her partner while the application was considered, or remaining in
South Africa, thereby infringing on the marital right to cohabit. This limitation on the right to cohabit was deemed to be an
infringement of the right to dignity and accordingly, s 25(9)( b) of the Aliens Control Act was found to be unjustifiable and
invalid.
However, the Bill of Rights does not contain an explicit right to marry or to have a person’s family life protected. For this
reason, the Court relied on the right to human dignity to invalidate the impugned legal provisions. In the process of doing so,
O’Regan J explained the importance of the value of human dignity in the following terms:

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 The value of dignity in our Constitutional framework cannot … be doubted. The Constitution asserts
dignity to contradict our past in which human dignity for black South Africans was routinely and
cruelly denied. It asserts it too to inform the future, to invest in our democracy respect for the intrinsic
worth of all human beings. Human dignity therefore informs constitutional adjudication and
interpretation at a range of levels. It is a value that informs the interpretation of many, possibly all,
other rights. This Court has already acknowledged the importance of the constitutional value of
dignity in interpreting rights such as the right to equality, the right not to be punished in a cruel,
inhuman or degrading way, and the right to life. Human dignity is also a constitutional value that is of
central significance in the limitations analysis.162

Human dignity as a value has therefore been invoked in many different settings. For example, when dealing with discrimination
on the basis of sexual orientation, the Constitutional Court invoked dignity as a powerful value underlying its analysis. In
National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others ,163 the Court held that the
common law criminalisation of sodomy was a violation of the right not only of equality but also of dignity. The reason for this
decision was that as a result of the criminal offence, gay men were at risk of arrest, prosecution and conviction of the offence of
sodomy simply because they sought to engage in sexual conduct which was part of their experience of being human. The
criminalisation of sodomy had the effect of degrading and devaluing gay men which was an invasion of their dignity. More
recently, in the case of Minister of Home Affairs and Another v Fourie and Another , the Constitutional Court declared that the
denial of the right of homosexual persons to marry ‘represented a harsh if oblique statement by the law that same-sex couples are
outsiders, and that their need for affirmation and protection of their intimate relations as human beings is somehow less than that
of heterosexual couples’.164 The inference was that same-sex couples were not worthy of the same rights and protection as
heterosexual couples. To remedy this indignity, the Court declared the common law definition of marriage inconsistent with the
Constitution and invalid to the extent that it did not permit same-sex couples to enjoy the status and benefits coupled with
responsibilities it accorded to heterosexual couples.
The value of human dignity has also been invoked in socio-economic rights interpretation. As we shall see, when
determining whether the state has acted reasonably to give effect to various social and economic rights, the notion of dignity is
often invoked. Thus in Government of the Republic of South Africa and Others v Grootboom and Others , the Court held that the
foundational values of the Constitution, those of human dignity, freedom and equality, are denied to those who have no food,
clothing or shelter.165 A similar move occurred in Minister of Health and Others v Treatment Action Campaign and Others (No
2), in which the Court held with reference to the right of access to health care that ‘[n]o one should be condemned to a life below
the basic level of dignified human existence’.166 As Liebenberg points out, the value of dignity is here used in its expansive
form, implying that the dignity of human beings can only be safeguarded if they live in conditions that enable them to develop
their capabilities, to participate as agents in the shaping of their society. 167 As Liebenberg suggests, the reliance on the value of
dignity in social and economic rights cases affirms that dignity ‘does not or should not confine us to individual personality issues
but can focus our gaze on material conditions of advantage and disadvantage in society’. 168
Dignity was further defined in Occupiers of 51 Olivia Road, Berea Township and 197 Main Street Johannesburg v City of
Johannesburg and Others, concerning access to adequate shelter, where the Court held as follows:

It is fundamental to an evaluation of the reasonableness of State action that account be taken of the
inherent dignity of human beings. The Constitution will be worth infinitely less than its paper if the
reasonableness of State action concerned with housing is determined without regard to the
fundamental constitutional value of human dignity. Section 26, read in the context of the Bill of Rights
as a whole, must mean that the respondents have a right to reasonable action by the State in all
circumstances and with particular regard to human dignity. In short, I emphasise that human beings
are required to be treated as human beings. This is the backdrop against which the conduct of the
[State] must be seen.169

However, the Court pointed out that section 10 of the Bill of Rights makes it plain that dignity is not only a value fundamental to
our Constitution, it is also a justiciable and enforceable right that must be respected and protected. Because the value of dignity
informs the interpretation of many if not all rights contained in the Bill of Rights, in most cases where the value of human dignity
is offended, ‘the primary constitutional breach occasioned may be of a more specific right’. 170 This leaves a limited but pivotal
role for the right (as opposed to the value) to human dignity. The right to dignity will usually only be relied on where none of the
other rights will specifically protect the interest at stake.171 In Dawood, the Constitutional Court relied on the right to dignity
precisely because no other right in the Bill of Rights explicitly guarantees the right to marry and family life for individuals. The
Court argued that because there was not a more specific right available ‘that protects individuals who wish to enter into and
sustain permanent intimate relationships’,172 it was required to rely on section 10:

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 The decision to enter into a marriage relationship and to sustain such a relationship is a matter of
defining significance for many if not most people and to prohibit the establishment of such a
relationship impairs the ability of the individual to achieve personal fulfilment in an aspect of life that
is of central significance. In my view, such legislation would clearly constitute an infringement of the
right to dignity. It is not only legislation that prohibits the right to form a marriage relationship that
will constitute an infringement of the right to dignity, but any legislation that significantly impairs the
ability of spouses to honour their obligations to one another would also limit that right. A central
aspect of marriage is cohabitation, the right (and duty) to live together, and legislation that
significantly impairs the ability of spouses to honour that obligation would also constitute a limitation
of the right to dignity.173

This means that the right to dignity has the potential to be used by the courts to deal with human rights infringements not
specifically addressed by other rights explicitly included in the Bill of Rights. It may well be that as society evolves and as we
recognise new forms of indignity not captured by the text of the Bill of Rights, the Constitutional Court may interpret the right to
human dignity to provide protection to individuals affected by these affronts to their dignity. This turns the right to human dignity
into a potentially powerful tool to ensure that the Bill of Rights addresses evolving human rights concerns.

PAUSE FOR REFLECTION

New forms of indignity not captured by the text of the Bill of Rights
In Teddy Bear Clinic for Abused Children and Another v Minister of Justice and Constitutional Development
and Another,174 the Constitutional Court also invoked the right to human dignity to declare invalid
sections 15 and 16 of the Sexual Offences and Related Matters Amendment Act.175 The impugned
sections criminalised consensual sexual intercourse between adolescents (between 12 and 16 years of
age) as well as other forms of physical contact between adolescents including petting, kissing and hugging.
The Act stated that in such cases both of the adolescents involved had to be prosecuted. The Act provided
for a ‘close-in-age’ defence to an adolescent who is charged with petting, kissing and hugging, but not to an
adolescent who is charged with sexual intercourse with another adolescent. This means that where both
the adolescents were children ‘and the age difference between them was not more than two years at the
time of the alleged commission of the offence’ 176 they could not be prosecuted, but only in cases of
petting, kissing and other non-intercourse related sexual contact.
In coming to the conclusion that sections 15 and 16 of the Act unconstitutionally infringed the right to
human dignity, the Constitutional Court stated:

It cannot be doubted that the criminalisation of consensual sexual conduct is a form of

stigmatisation which is degrading and invasive. In the circumstances of this case, the human
dignity of the adolescents targeted by the impugned provisions is clearly infringed. If one’s
consensual sexual choices are not respected by society, but are criminalised, one’s innate
sense of self-worth will inevitably be diminished. Even when such criminal provisions are rarely
enforced, their symbolic impact has a severe effect on the social lives and dignity of those
targeted. It must be borne in mind that sections 15 and 16 criminalise a wide range of
consensual sexual conduct between children: the categories of prohibited activity are so broad
that they include much of what constitutes activity undertaken in the course of adolescents’
normal development. There can also be no doubt that the existence of a statutory provision that
punishes forms of sexual expression that are developmentally normal degrades and inflicts a
state of disgrace on adolescents. To my mind, therefore, the stigma attached to adolescents by
the impugned provisions is manifest. The limitation of section 10 of the Constitution is obvious
and undeniable.177

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 12.4 The right to privacy

12.4.1 Introduction
One of the most notorious legislative provisions in place during the apartheid era was section 16 of the Immorality Act. 178 This
section criminalised all extramarital sexual relations between a white male and a non-white female, or vice versa. (Interracial
marriages were prohibited by the Prohibition of Mixed Marriages Act. 179) The Immorality Act authorised police officers to
invade people’s private homes in order to catch couples in the act of breaking this law, thus infringing on their privacy. The
playwright Athol Fugard wrote a play, which opened in 1972, entitled Statements After an Arrest Under the Immorality Act, to
dramatise the absurdity, the heartache and the pain caused by this provision. A short summary of the play illustrates the effects of
section 16:

Set in apartheid South Africa, where relationships across the colour bar were a criminal offence, two
lovers – a black man and white woman meet secretly in the library where the woman works to make
love and share their hopes and fears. An observant neighbour reports them to the police who secretly
photograph them from the informant’s backyard and eventually break in and arrest the couple under
the then inhuman and universally pilloried Immorality Act. The play is a compelling and deeply
moving love story in which the physically and emotionally naked lovers expose not only their bodies
but also their deepest longings for personal and emotional freedom.180

Given this history, it is no surprise that section 14 of the Constitution provides that ‘[e]veryone has the right to privacy’, which
includes the right not to have their person or home searched; their property searched; their possessions seized; or the privacy of
their communications infringed. Section 14 therefore contains a general right to privacy as well as specifically enumerated
infringements of privacy.181 These enumerated areas of protection form part of the general right to privacy.

12.4.2 Scope and content of the right to privacy

Privacy recognises that we all have a right to a sphere of private intimacy and autonomy. By protecting this private and intimate
sphere, we are allowed ‘to establish and nurture human relationships without interference from the outside community’. 182 The
scope of a person’s privacy extends only to those aspects ‘in regard to which a legitimate expectation of privacy can be
harboured’.183 There are two distinct components to this expectation: first, ‘a subjective expectation of privacy’ and second, an
expectation that the society has recognised as ‘objectively reasonable’.184 A person cannot have a subjective expectation of
privacy in cases where he or she has willingly consented to waive that privacy. 185 The second component does not focus on the
subjective expectations of the claimant based on his or her explicit or implicit consent to waive his or her privacy. Rather, the
second component focuses on a determination by a court on whether the person claiming that his or her privacy was infringed
could reasonably expect his or her privacy to be protected in the particular circumstances.
The decision whether, reasonably speaking, a person has a legitimate expectation to privacy may depend at least partly on
whether the interference was of the ‘inner sanctum’ of personhood or not. As the Constitutional Court pointed out in Bernstein
and Others v Bester NO and Others:

The truism that no right is to be considered absolute, implies that from the outset of interpretation
each right is always already limited by every other right accruing to another citizen. In the context of
privacy this would mean that it is only the inner sanctum of a person, such as his/her family life, sexual
preference and home environment, which is shielded from erosion by conflicting rights of the
community. This implies that community rights and the rights of fellow members place a
corresponding obligation on a citizen, thereby shaping the abstract notion of individualism towards
identifying a concrete member of civil society. Privacy is acknowledged in the truly personal realm, but
as a person moves into communal relations and activities such as business and social interaction, the
scope of personal space shrinks accordingly.186

The effect of this view regarding privacy is that in the ‘inner sanctum’ of a person’s life, in his or her ‘truly personal realm’ like
his or her home or bedroom, there would be a far greater likelihood that a person’s expectation of having his or her privacy
respected is reasonable. Privacy is therefore viewed as a continuum with more intense protection at its core and less intense

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 protection on the periphery. Privacy becomes more intense the closer it moves to the intimate personal sphere of life of human
beings and less intense as it moves away from that core. 187 Privacy and dignity are therefore closely related.188 This is so
because where a person’s privacy is breached, that person will often not be treated with concern and respect.
There is a range of factors relevant to distinguishing the core of privacy from its penumbra. One of the considerations is the
nature of the relationship concerned. For example, in Jordan, the minority judgment of the Constitutional Court found with
regard to the regulation of sex work that:

One of the considerations is the nature of the relationship concerned: an invasion of the relationship
between partners, or parent and child, or other intimate, meaningful and intensely personal
relationships will be a strong indication of a violation close to the core of privacy.189

Following this reasoning, the minority in the Jordan case concluded that the commercial nature of the conduct under
consideration removed it from the inner sanctum of privacy. The majority in this case, controversially, came to the same
conclusion, holding that if the right to privacy is implicated at all in a case where sex work is regulated, ‘it lies at the periphery
and not at its inner core’.190
For the same reason the Constitutional Court found in Investigating Directorate: Serious Economic Offences and Others v
Hyundai Motor Distributors (Pty) Ltd and Others In re: Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others
191 that the privacy rights of a juristic person would be less intense than those of a human being. Although juristic persons like
big companies also enjoy the protection of the privacy right, this protection would be weaker than for an ordinary human being:

As we have seen, privacy is a right which becomes more intense the closer it moves to the intimate
personal sphere of the life of human beings, and less intense as it moves away from that core. This
understanding of the right flows, as was said in Bernstein, from the value placed on human dignity by
the Constitution. Juristic persons are not the bearers of human dignity. Their privacy rights, therefore,
can never be as intense as those of human beings. However, this does not mean that juristic persons are
not protected by the right to privacy. Exclusion of juristic persons would lead to the possibility of grave
violations of privacy in our society, with serious implications for the conduct of affairs. The state
might, for instance, have free licence to search and seize material from any non-profit organisation or
corporate entity at will. This would obviously lead to grave disruptions and would undermine the very
fabric of our democratic state. Juristic persons therefore do enjoy the right to privacy, although not to
the same extent as natural persons. The level of justification for any particular limitation of the right
will have to be judged in the light of the circumstances of each case. Relevant circumstances would
include whether the subject of the limitation is a natural person or a juristic person as well as the
nature and effect of the invasion of privacy.192

12.4.3 Privacy regarding sexual intimacy

Few aspects of a person’s life can be said to be more intimate and private than his or her consensual sexual conduct conducted in
private. The way in which we give expression to our sexuality is therefore at the core of the protection afforded by the right to
private intimacy.193 Whenever a person expresses his or her sexuality consensually and without harming another, invasion of
that precinct will be a breach of that person’s privacy. 194 Where legislation aims to regulate consensual adult sexual intimacy it
will therefore strike at the heart of the right to privacy. However, it has been argued that where such regulation discriminates
against a targeted group – like gay men, lesbians and transgendered individuals – it would be inappropriate to invoke the right to
privacy, instead of the right against non-discrimination, as this would not capture the true obnoxious nature of the discrimination.
As Cameron had previously argued in the context of the regulation of same-sex sexual desire:

[T]he privacy argument has detrimental effects on the search for a society which is truly
non-stigmatizing as far as sexual orientation is concerned. On the one hand, the privacy argument
suggests that discrimination against gays and lesbians is confined to prohibiting conduct between
adults in the privacy of the bedroom. This is manifestly not so. On the other hand, the privacy
argument may subtly reinforce the idea that homosexual intimacy is shameful or improper: that it is
tolerable so long as it is confined to the bedroom — but that its implications cannot be countenanced
outside. Privacy as a rationale for constitutional protection therefore goes insufficiently far, and has
appreciable drawbacks even on its own terms.195

However, in National Coalition for Gay and Lesbian Equality v Minister of Justice , the Constitutional Court rejected this
argument. The Court pointed out that rights should not be construed absolutely or individualistically in ways which denied that all

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 individuals are members of a broader community and are defined in significant ways by that membership. 196 The regulation of
sexual conduct can infringe both the right to equality and the right to privacy. Emphasising the breach of both these rights could
highlight ‘just how egregious the invasion of the constitutional rights’ are. When recognising the breach of privacy in such a
setting, it can strengthen the conclusion that the discrimination inherent in the breach of privacy also constitutes unfair
discrimination.197
In Teddy Bear Clinic, the Constitutional Court affirmed that the right to privacy in sexual matters is not only enjoyed by
adults but also by adolescents. Where legislation criminalises the consensual sexual conduct of adolescents, it applies to the most
‘intimate sphere of personal relationships and therefore inevitably implicate[s] the constitutional right to privacy’. 198 ‘The
offences allow police officers, prosecutors and judicial officers to scrutinise and assume control of the intimate relationships of
adolescents, thereby intruding into a deeply personal realm of their lives.’ 199

SUMMARY

This chapter deals with the right to equality and the right to dignity. Section 9 of the Constitution guarantees the right to equality.
A litigant invokes section 9 in cases where he or she wishes to attack the constitutionality of a legislative provision because the
litigant believes that the provision impermissibly differentiates between people or groups of people. The courts rely on
section 9(1), section 9(2) or section 9(3), depending on the nature of the differentiation complained of, to decide the case.
The courts rely on section 9(1) where a legislative provision differentiates between groups of people on grounds other than
those listed in section 9(3) or analogous to those listed in section 9(3). This so-called mere differentiation includes the many
distinctions made in legislation that are not related to the personal attributes and characteristics of groups of people. A
section 9(1) challenge has to be based on the question of whether the differentiation (mere differentiation) was rational or
arbitrary.
The courts rely on section 9(2) where the legislative provision being challenged differentiates between groups of people on
one of the grounds listed in section 9(3) or on grounds analogous to those listed in this section, for example race, sex or sexual
orientation. However, in this case, the legislation differentiates between groups of people with the aim of correcting the effects of
past unfair discrimination (affirmative action). When testing an affirmative action provision against section 9(2), the court asks:
• whether the affirmative action scheme devised by the legislature targets a group who was unfairly discriminated against in
the past
• whether the scheme is designed to achieve its redress goal, in other words, whether it is reasonably capable of doing so
• whether the scheme will achieve the long-term goal of equality, which would not be the case if the scheme gratuitously and
flagrantly imposes disproportionate burdens on the excluded group.

Section 9(3) deals with unfair discrimination. This is discrimination on one or more of the grounds listed in that section or
analogous to those grounds, but only when the differentiation was not done with the aim of implementing an affirmative action
policy. When deciding whether discrimination is fair or unfair for purposes of section 9(3), the court follows a contextual
approach. This means that the court considers:
• whether the complainant belongs to a group previously discriminated against
• whether the discrimination pursues an important purpose
• how severe the impact of the discrimination is on the group.

The courts must deal with allegations of discrimination by private individuals, public officials or institutions, in other words,
allegations of non-statutory forms of discrimination, in terms of the Promotion of Equality and Prevention of Unfair
Discrimination Act (PEPUDA). The PEPUDA was passed in accordance with section 9(4) of the Constitution to ensure the
horizontal application of the prohibition on discrimination. When applying the provisions of the PEPUDA, the concept of
reasonable accommodation is important but not always decisive. The PEPUDA requires a court to consider many of the same
considerations relevant to a section 9(2) or a section 9(3) enquiry, as well as considerations relevant to a limitations clause
enquiry in terms of section 36, when it decides whether the discrimination is fair or unfair.
Section 10 of the Constitution protects the right to dignity. The right to dignity must be distinguished from the value of
dignity that permeates the Constitution and underlies the interpretation of many, if not all, the other rights in the Bill of Rights.
The courts usually rely on the right to dignity if the dignity interest is not adequately protected by any of the other rights in the
Bill of Rights.
Section 14 of the Constitution protects the right to privacy. This right is viewed as having a core which is more rigorously
protected than its penumbra. While both individuals and juristic persons can rely on this right, the level of protection will differ
depending on the nature of the situation. Courts ask whether privacy protection could reasonably be expected, given the nature of
the relationship that is being protected. In this schema, it goes without saying that consensual intimate sexual relationships go to
the heart of the right to privacy.

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 1 See S v Makwanyane (CCT3/94) [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391; [1996] 2 CHRLD 164; 1995 (2) SACR 1 (6 June 1995)
para 329; Teddy Bear Clinic for Abused Children and Another v Minister of Justice and Constitutional Development and Another (CCT 12/13) [2013]
ZACC 35; 2013 (12) BCLR 1429 (CC) (3 October 2013) para 52.
2 See Currie, I and De Waal, J (2013) The Bill of Rights Handbook 6th ed 250.
3 Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v Minister of Home Affairs and Others; Thomas and Another v
Minister of Home Affairs and Others (CCT35/99) [2000] ZACC 8; 2000 (3) SA 936; 2000 (8) BCLR 837 (7 June 2000) para 35.
4 National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others (CCT11/98) [1998] ZACC 15; 1999 (1) SA 6; 1998 (12)
BCLR 1517 (CC) (9 October 1998) para 120.
5 Dawood para 35.
6 Dawood para 35.
7 For an admirable book-length attempt to do so, see Ackermann, L (2012) Human Dignity: Lodestar for Equality in South Africa.
8 Teddy Bear Clinic para 52. See also Khumalo and Others v Holomisa (CCT53/01) [2002] ZACC 12; 2002 (5) SA 401; 2002 (8) BCLR 771 (14 June
2002) para 27. See also Cameron, E (2012) Dignity and disgrace: Moral citizenship and constitutional protection, lecture delivered at the University of
Oxford’s Understanding Human Dignity Conference (26–29 June 2012) (as yet unpublished) at 10.
9 See Sanderson v Attorney-General, Eastern Cape (CCT10/97) [1997] ZACC 18; 1997 (12) BCLR 1675; 1998 (2) SA 38 (2 December 1997) para 23.
10 Brink v Kitshoff NO (CCT15/95) [1996] ZACC 9; 1996 (4) SA 197; 1996 (6) BCLR 752 (15 May 1996) para 40.
11 Langa, P (2006) Transformative constitutionalism Stellenbosch Law Review 17(3):351–60 at 352–3. See also Albertyn, C and Goldblatt, B ‘Equality’ in
Woolman, S and Bishop, M (eds) (2013) Constitutional Law of South Africa 2nd ed rev service 5 35.5.
12 Currie and De Waal (2013) 213.
13 See De Vos, P (2000) Equality for all? A critical analysis of the equality jurisprudence of the Constitutional Court Tydskrif vir Hedendaagse
Romeins-Hollandse Reg 63(1):62–75 at 65; Albertyn and Goldblatt (2013) 35.6.
14 De Vos (2000) 65.
15 Albertyn and Goldblatt (2013) 35.6. See also Albertyn, C and Goldblatt, B (1998) Facing the challenge of transformation: Difficulties in the development
of an indigenous jurisprudence of equality South African Journal on Human Rights 14(2):248–76 at 152–3.
16 National Coalition for Gay and Lesbian Equality v Minister of Justice para 60.
17 (CCT 63/03) [2004] ZACC 3; 2004 (6) SA 121 (CC); 2004 (11) BCLR 1125 (CC); [2004] 12 BLLR 1181 (CC) (29 July 2004) para 27. See also Brink
para 40; President of the Republic of South Africa and Another v Hugo (CCT11/96) [1997] ZACC 4; 1997 (6) BCLR 708; 1997 (4) SA 1 (18 April 1997)
para 41; Prinsloo v Van der Linde and Another (CCT4/96) [1997] ZACC 5; 1997 (6) BCLR 759; 1997 (3) SA 1012 (18 April 1997) para 31; City Council
of Pretoria v Walker (CCT8/97) [1998] ZACC 1; 1998 (2) SA 363; 1998 (3) BCLR 257 (17 February 1998) para 46; Hoffmann v South African Airways
(CCT17/00) [2000] ZACC 17; 2001 (1) SA 1; 2000 (11) BCLR 1235; [2000] 12 BLLR 1365 (CC) (28 September 2000).
18 Brink para 40. See also Walker para 26 where Langa DP stated that the assessment of discrimination cannot be undertaken in a vacuum, ‘but should be
based both on the wording of the section and in the constitutional and historical context of the developments in South Africa’.
19 Brink para 41.
20 Brink para 41.
21 See, for example, Harksen v Lane NO and Others (CCT9/97) [1997] ZACC 12; 1997 (11) BCLR 1489; 1998 (1) SA 300 (7 October 1997) para 51(b).
22 See De Vos (2000) 66.
23 Botha, H (2009) Equality, plurality and structural power South African Journal on Human Rights 25(1):1–37 at 7.
24 For a real-life example, see Kassiem, A (2006, 26 June) Guest houses can be for gay men only available at http://www.iol.co.za/news/south-africa/guest
-houses-can-be-for-gay-men-only-1.283071.
25 Act 4 of 2000.
26 Prinsloo para 23.
27 Prinsloo para 24.
28 Brink; Prinsloo; Hugo; Harksen; Larbi-Odam and Others v Member of the Eexecutive Council for Education (North-West Province) and Another
(CCT2/97) [1997] ZACC 16; 1997 (12) BCLR 1655; 1998 (1) SA 745 (26 November 1997); Walker; National Coalition for Gay and Lesbian Equality v
Minister of Justice; Hoffmann; Moseneke and Others v Master of the High Court (CCT51/00) [2000] ZACC 27; 2001 (2) BCLR 103; 2001 (2) SA 18
(6 December 2000); Satchwell v President of Republic of South Africa and Another (CCT45/01) [2002] ZACC 18; 2002 (6) SA 1; 2002 (9) BCLR 986
(25 July 2002); J and Another v Director General, Department of Home Affairs and Others (CCT46/02) [2003] ZACC 3; 2003 (5) BCLR 463; 2003 (5)
SA 621 (CC) (28 March 2003); Du Toit and Another v Minister of Welfare and Population Development and Others (CCT40/01) [2002] ZACC 20; 2002
(10) BCLR 1006; 2003 (2) SA 198 (CC) (10 September 2002); Bhe and Others v Khayelitsha Magistrate and Others (CCT 49/03) [2004] ZACC 17;
2005 (1) SA 580 (CC); 2005 (1) BCLR 1 (CC) (15 October 2004); Volks NO v Robinson and Others (CCT12/04) [2005] ZACC 2; 2005 (5) BCLR 446
(CC) (21 February 2005); Minister of Home Affairs and Another v Fourie and Another (CCT 60/04) [2005] ZACC 19; 2006 (3) BCLR 355 (CC); 2006
(1) SA 524 (CC) (1 December 2005); Gory v Kolver NO and Others (CCT28/06) [2006] ZACC 20; 2007 (4) SA 97 (CC); 2007 (3) BCLR 249 (CC)
(23 November 2006). See also Pretorius, JL (2010) Fairness in transformation: A critique of the Constitutional Court’s affirmative action jurisprudence
South African Journal on Human Rights 26(3):536–70.
29 See generally Fagan, A (1998) Dignity and unfair discrimination: A value misplaced and a right misunderstood South African Journal on Human Rights
14(2):220–47 at 220; and Westen, P (1982) The empty idea of equality Harvard Law Review 95(3):537–96 at 537.
30 National Coalition for Gay and Lesbian Equality v Minister of Justice para 122.
31 De Vos (2000) 64.
32 (CCT11/96) [1997] ZACC 4; 1997 (6) BCLR 708; 1997 (4) SA 1 (18 April 1997).
33 Hugo para 41.
34 Hugo para 41. See also Albertyn and Goldblatt (1998) 257.
35 See Woolman, S ‘Dignity’ in Woolman and Bishop (2013) 36.3.
36 Hugo para 41; Prinsloo paras 31–3; Harksen para 50.
37 (CCT4/96) [1997] ZACC 5; 1997 (6) BCLR 759; 1997 (3) SA 1012 (18 April 1997).
38 Prinsloo para 33. See also Harksen para 50: ‘Whether or not there is discrimination will depend upon whether, objectively, the ground is based on
attributes and characteristics which have the potential to impair the fundamental human dignity of persons as human beings or to affect them adversely in
a comparably serious manner.’
39 Malherbe, R (2007) Some thoughts on unity, diversity and human dignity in the new South Africa Tydskrif vir die Suid Afrikaanse Reg/Journal of South
African Law 70(1):127–33 at 132.
40 Albertyn and Goldblatt (1998) 256–60.
41 Botha (2009) 8.
42 Botha (2009) 9.
43 Albertyn and Goldblatt (2013) 35.10. See, for example, Government of the Republic of South Africa and Others v Grootboom and Others (CCT11/00)
[2000] ZACC 19; 2001 (1) SA 46; 2000 (11) BCLR 1169 (4 October 2000) para 23.

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 44 (CCT 13/03, CCT 12/03) [2004] ZACC 11; 2004 (6) SA 505 (CC); 2004 (6) BCLR 569 (CC) (4 March 2004).
45 Khosa para 74.
46 Van Heerden para 25.
47 Van Heerden para 31.
48 South African National Defence Union v Minister of Defence and Others (CCT65/06) [2007] ZACC 10; 2007 (5) SA 400; 2007 (8) BCLR 863 (CC);
[2007] 9 BLLR 785 (CC); (2007) 28 ILJ 1909 (CC) (30 May 2007) paras 51–2; MEC for Education: Kwazulu-Natal and Others v Pillay (CCT 51/06)
[2007] ZACC 21; 2008 (1) SA 474 (CC); 2008 (2) BCLR 99 (CC) (5 October 2007) paras 39–40; Walele v City of Cape Town and Others (CCT 64/07)
[2008] ZACC 11; 2008 (6) SA 129 (CC); 2008 (11) BCLR 1067 (CC) (13 June 2008) paras 29–30; Nokotyana and Others v Ekurhuleni Metropolitan
Municipality and Others (CCT 31/09) [2009] ZACC 33; 2010 (4) BCLR 312 (CC) (19 November 2009) paras 47–9. See also Van der Walt, AJ (2008)
Normative pluralism and anarchy: Reflections on the 2007 term Constitutional Court Review 1:77–128 at 100–03.
49 Prinsloo para 25.
50 Prinsloo paras 23–4.
51 Van Heerden para 33.
52 National Coalition for Gay and Lesbian Equality v Minister of Justice para 18.
53 Prinsloo para 22.
54 Act 55 of 1998.
55 Prinsloo para 22, quoting, in part, Didcott in S v Ntuli (CCT17/95) [1995] ZACC 14; 1996 (1) BCLR 141; 1996 (1) SA 1207 (8 December 1995) para 18.
See also Walker para 27.
56 Prinsloo para 25 and Walker para 27.
57 Prinsloo para 25.
58 Prinsloo para 25.
59 See Mendes, E ‘The crucible of the Charter’ in Beaudoin, GA and Mendes, E (eds) (1996) The Canadian Charter of Rights and Freedoms 3.20; Tribe,
LH (1988) American Constitutional Law 2nd ed 1442–3.
60 Prinsloo para 35.
61 Harksen para 43.
62 Prinsloo paras 24–6.
63 Van der Merwe v Road Accident Fund and Another (CCT48/05) [2006] ZACC 4; 2006 (4) SA 230 (CC); 2006 (6) BCLR 682 (CC) (30 March 2006)
para 33. See also Jooste v Score Supermarket Trading (Pty) Ltd (Minister of Labour intervening) (CCT15/98) [1998] ZACC 18; 1999 (2) SA 1; 1999 (2)
BCLR 139 (27 November 1998).
64 In Jooste para 16 the Constitutional Court explained this as follows:
It is clear that the only purpose of rationality review is an inquiry into whether the differentiation is arbitrary or irrational, or manifests naked
preference and it is irrelevant to this inquiry whether the scheme chosen by the legislature could be improved in one respect or another. Whether
an employee ought to have retained the common law right to claim damages, either over and above or as an alternative to the advantages
conferred by the Compensation Act, represents a highly debatable, controversial and complex matter of policy. It involves a policy choice which
the legislature and not a court must make. The contention represents an invitation to this Court to make a policy choice under the guise of
rationality review; an invitation which is firmly declined.
65 (CCT 117/11) [2013] ZACC 4; 2013 (4) BCLR 421 (CC) (7 March 2013).
66 Act 44 of 1958.
67 Ngewu para 17.
68 Brink para 42. See generally Walker.
69 Van Heerden para 27.
70 Van Heerden para 25.
71 See the debate on the nature of these measures in Currie and De Waal (2013) 241–2; Gutto, S (2001) Equality and Non-Discrimination in South Africa:
The Political Economy of Law and Law Making 204–5. See also Du Plessis, L and Corder, H (1994) Understanding South Africa’s Transitional Bill of
Rights 144–5; Pretorius, JL (2001) Constitutional standards for affirmative action in South Africa: A comparative overview Heidelberg Journal of
International Law 61(8):403–57 at 403; Van Reenen, TP (1997) Equality, discrimination and affirmative action: An analysis of section 9 of the
Constitution of the Republic of South Africa SA Publiekreg/Public Law 12(1):151–65 at 151; Dupper, O (2004) In defence of affirmative action South
African Law Journal 121(1):187–215; Dupper, O, MacEwan, M and Louw, A (2006) Employment equity in the tertiary sector in the Western Cape
International Journal of Discrimination and the Law 8(3):191–212; De Vos, P (2012) The past is unpredictable: Race, redress and remembrance in the
South African Constitution South African Law Journal 129(1):73–103.
72 Van Heerden para 73.
73 Van Heerden para 75.
74 Van Heerden para 24.
75 Van Heerden para 31.
76 Van Heerden para 33.
77 Van Heerden paras 34–5.
78 Fargher, M (2013, 5 October) White-washed equality Politicsweb available at http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71619
?oid=412294&sn=Detail&pid=71616.
79 Van Heerden para 39.
80 Van Heerden para 40.
81 Albertyn and Goldblatt (2013) 35.35.
82 Van Heerden para 87.
83 Van Heerden para 155.
84 De Vos (2012) 77–8.
85 Van Heerden para 41.
86 Van Heerden para 41. See also Prinsloo paras 24–6 and 36; Jooste para 16.
87 Van Heerden para 43.
88 Van Heerden para 41.
89 Van Heerden para 152.
90 Van Heerden para 44.
91 This view is bolstered by the concurrent decisions of Sachs J in the Van Heerden judgment (para 146), in which he emphasises the substantive nature of
equality and affirms that s 9(2) must be applied within this framework.
92 De Vos (2012) 93–4.
93 Pretorius (2010) 564.
94 Pretorius (2010) 562.

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 95 Pretorius (2010) 562–3.
96 In National Coalition for Gay and Lesbian Equality v Minister of Justice para 18, the Court stressed that the two enquiries need not follow one from the
other. The rational connection enquiry would be clearly unnecessary in a case in which a court holds that the discrimination is unfair and unjustifiable.
97 (CCT9/97) [1997] ZACC 12; 1997 (11) BCLR 1489; 1998 (1) SA 300 (7 October 1997) para 44.
98 Harksen para 44. This distinction and the concomitant two-stage analysis were not employed in the cases preceding Harksen. In Prinsloo, for example,
the Court combined the two stages or, at least, did not identify the two stages (paras 30–1). See Currie and De Waal (2013) 223.
99 Prinsloo para 29.
100 Harksen para 46.
101 Harksen para 50(b).
102 See Albertyn and Goldblatt (2013) 35.43.
103 Harksen para 47.
104 Walker para 43.
105 Walker para 43. Albertyn and Goldblatt (1998) 268 criticise this view and argue that it ‘denudes discrimination of its prejudicial connotations by not
requiring that such prejudice be demonstrated’. They find support for this view from the dissenting opinion of Sachs J in Walker paras 105–6 who argued
that there can only be a finding of discrimination (the first stage of the analysis) if the claimant can prove that he or she had been prejudiced – that there
had been ‘actual negative impact’ associated with a specified ground – by the differentiation which was based on one of the specified grounds. He
concludes:
The core of my argument at this stage is that the complainant has not made out a case of having suffered prima facie discrimination at all. In
order to invoke the presumption of unfairness contained in s 8(4) [now s 9(5)] some element of actual or potential prejudice must be immanent in
the differentiation, otherwise there is no “discrimination” to be evaluated, and the need to establish fairness or unfairness has no subject matter.
This view was, however, explicitly rejected in the same case by the majority judgment of Langa DP as contrary to the previous equality decisions of the Court
(para 33).
106 Harksen para 46.
107 Harksen para 46.
108 Harksen para 47.
109 (CCT17/00) [2000] ZACC 17; 2001 (1) SA 1; 2000 (11) BCLR 1235; [2000] 12 BLLR 1365 (CC) (28 September 2000).
110 Hoffmann para 28.
111 Larbi-Odam para 19.
112 Williams, RB (2012, 18 August) Wired for success Psychology Today available at http://www.psychologytoday.com/blog/wired-success/201208/im
-successful-because-im-beautiful-how-we-discriminate-in-favor-attractive.
113 DiSalvo, D (2013, 17 July) Study: Unattractive people are targets for cruelty at work Forbes available at http://www.forbes.com/sites/daviddisalvo/2013
/07/17/study-unattractive-people-are-targets-for-cruelty-at-work/.
114 See Fourie.
115 (CCT8/97) [1998] ZACC 1; 1998 (2) SA 363; 1998 (3) BCLR 257 (17 February 1998).
116 Walker para 31.
117 (CCT31/01) [2002] ZACC 22; 2002 (6) SA 642; 2002 (11) BCLR 1117 (9 October 2002).
118 Jordan para 10.
119 Jordan para 60.
120 See Kassiem, A (2004, 11 February) Gay nightclub admits to discrimination Independent Online available at http://www.iol.co.za/news/south-africa/gay
-nightclub-admits-to-racial-discrimination-1.122764.
121 Harksen para 44.
122 Harksen para 49.
123 Such an interpretation would mean that human dignity is employed by the court in both step 1 and step 2 in cases where the differentiation is based on one
of the unspecified grounds. This would make the process somewhat strange and at least one of the two steps completely superfluous.
124 Harksen para 49: ‘In the final analysis it is the impact of the discrimination on the complainant that is the determining factor regarding the unfairness of
the discrimination.’
125 Harksen para 50.
126 Brink para 27. See also Albertyn and Goldblatt (2013) 35.76.
127 Khosa para 76.
128 See Hoffmann.
129 Khosa para 71.
130 (CCT10/99) [1999] ZACC 17; 2000 (2) SA 1; 2000 (1) BCLR 39 (2 December 1999) para 54.
131 See National Coalition for Gay and Lesbian Equality v Minister of Justice para 22 where Ackermann J further stressed that the harm of discrimination is
structural in nature.
132 Act 68 of 1995.
133 Act 4 of 2000.
134 Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others (CCT 59/2004) [2005] ZACC 14; 2006 (8) BCLR 872 (CC); 2006 (2) SA
311 (CC) (30 September 2005) paras 96 (Chaskalson CJ) and 434–7 (Ngcobo J).
135 Pillay para 40.
136 Pillay para 70.
137 S 13 of the PEPUDA.
138 Pillay para 69.
139 (CCT 51/06) [2007] ZACC 21; 2008 (1) SA 474 (CC); 2008 (2) BCLR 99 (CC) (5 October 2007).
140 Pillay para 73.
141 Pillay para 73.
142 Pillay para 75.
143 Pillay para 76.
144 Pillay para 77.
145 Pillay para 78.
146 Pillay para 74, quoting from Canadian Supreme Court judgment Eaton v Brant County Board of Education [1997] 1 SCR 241 para 67.
147 S 1(a). See also s 36. See also Teddy Bear Clinic para 52.
148 Grootboom para 23.
149 In the case of S v Williams and Others (CCT20/94) [1995] ZACC 6; 1995 (3) SA 632; 1995 (7) BCLR 861 (CC) (9 June 1995), which concerned corporal
punishment, the Court held at para 45 that ‘the fact that the adult is stripped naked [for purposes of the whipping] merely accentuates the degradation and
humiliation. The whipping of both is, in itself, a severe affront to the dignity as a human being’.

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 150 Haysom, N ‘Dignity’ in Cheadle, H, Davis, D and Haysom, N (eds) (2002) South African Constitutional Law: The Bill of Rights 131. For further reading
on dignity generally, see Davis, DM (1999) Equality: The majesty of legoland jurisprudence South African Law Journal 116:398–414 at 414; Cowen, S
(2001) Can dignity guide South Africa’s equality jurisprudence? South African Journal on Human Rights 17(1):34–58 at 34; Fagan (1998) 220.
151 Masetlha v President of the Republic of South Africa and Another (CCT 01/07) [2007] ZACC 20; 2008 (1) SA 566 (CC); 2008 (1) BCLR 1 (3 October
2007) para 98.
152 See generally the case of Pillay.
153 Woolman, S ‘The widening gyre of dignity’ in Woolman, S and Bishop M (eds) (2008) Constitutional Conversations 197.
154 Walker para 113.
155 Makwanyane para 28 as per O’Regan J.
156 1 SCR 497 (1999).
157 See Chaskalson, A (2000) The Third Bram Fischer Lecture: Human dignity as a foundational value of our Constitutional order South African Journal on
Human Rights 16(2):193–205.
158 Law v Canada (Minister of Employment and Immigration) 1 SCR 497 (1999) para 53.
159 Woolman (2008) 202.
160 (CCT5/95) [1995] ZACC 13; 1996 (1) SA 984 (CC); 1996 (1) BCLR 1 (6 December 1995) para 49.
161 (CCT35/99) [2000] ZACC 8; 2000 (3) SA 936; 2000 (8) BCLR 837 (7 June 2000).
162 Dawood para 35.
163 (CCT11/98) [1998] ZACC 15; 1999 (1) SA 6; 1998 (12) BCLR 1517 (9 October 1998).
164 (CCT 60/04) [2005] ZACC 19; 2006 (3) BCLR 355 (CC); 2006 (1) SA 524 (CC) (1 December 2005) para 71.
165 (CCT11/00) [2000] ZACC 19; 2001 (1) SA 46; 2000 (11) BCLR 1169 (4 October 2000) para 34.
166 (CCT8/02) [2002] ZACC 15; 2002 (5) SA 721; 2002 (10) BCLR 1033 (5 July 2002) para 28.
167 Liebenberg, S (2005) The value of human dignity in interpreting socio-economic rights South African Journal on Human Rights 21(1):1–31.
168 Liebenberg (2005) 5.
169 (24/07) [2008] ZACC 1; 2008 (3) SA 208 (CC); 2008 (5) BCLR 475 (CC) (19 February 2008) para 10.
170 Dawood para 35.
171 Dawood para 35.
172 Dawood para 36.
173 Dawood para 37.
174 (CCT 12/13) [2013] ZACC 35; 2013 (12) BCLR 1429 (CC) (3 October 2013).
175 Act 32 of 2007.
176 S 56(2)(b) of the Sexual Offences and Related Matters Amendment Act.
177 Teddy Bear Clinic para 55.
178 Act 23 of 1957, later renamed the Sexual Offences Act.
179 Act 55 of 1949.
180 See http://www.capetownmagazine.com/events/statements-after-an-arrest-under-the-immorality-act/11_37_54253.
181 Currie and De Waal (2013) 294.
182 National Coalition for Gay and Lesbian Equality v Minister of Justice para 32.
183 Bernstein and Others v Bester NO and Others (CCT23/95) [1996] ZACC 2; 1996 (4) BCLR 449; 1996 (2) SA 751 (27 March 1996) para 75.
184 Bernstein para 75.
185 This is why participants in a reality television show such as Big Brother – in which contestants are filmed 24 hours a day in a secluded house – would not
be able to claim that their right to privacy had been infringed.
186 (CCT23/95) [1996] ZACC 2; 1996 (4) BCLR 449; 1996 (2) SA 751 (27 March 1996) para 67.
187 Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others In re: Hyundai Motor Distributors
(Pty) Ltd and Others v Smit NO and Others (CCT1/00) [2000] ZACC 12; 2000 (10) BCLR 1079; 2001 (1) SA 545 (CC) (25 August 2000) para 18.
188 Currie and De Waal (2013) 30.
189 Jordan para 80.
190 Jordan para 29.
191 (CCT1/00) [2000] ZACC 12; 2000 (10) BCLR 1079; 2001 (1) SA 545 (CC) (25 August 2000).
192 Hyundai Motor Distributors para 18.
193 National Coalition for Gay and Lesbian Equality v Minister of Justice para 32.
194 National Coalition for Gay and Lesbian Equality v Minister of Justice para 32.
195 Cameron, E (1993) Sexual orientation and the Constitution: A test case for human rights South African Journal on Human Rights 110(3):450–72 at 464.
196 National Coalition for Gay and Lesbian Equality v Minister of Justice para 30.
197 National Coalition for Gay and Lesbian Equality v Minister of Justice para 32.
198 Teddy Bear Clinic para 60.
199 Teddy Bear Clinic para 60.

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 Diversity rights
All rights reserved. May not be reproduced in any form without permission from the publisher, except fair uses permitted under U.S. or applicable copyright law.

13.1 Introduction
13.2 Freedom of association
13.2.1 Introduction
13.2.2 The scope and content of the right to freedom of association: general principles
13.2.3 Societal interests overriding association rights
13.2.3.1 Equality
13.2.3.2 Democracy
13.2.4 Balancing rights
13.3 Freedom of religion, belief and opinion
13.3.1 Introduction
13.3.2 The scope and content of section 15(1) of the Constitution
13.3.3 The reasonable accommodation of religious beliefs and practices
13.3.4 The right not to believe in any God
13.3.5 Conducting religious observances at state institutions: section 15(2) of the Constitution
13.3.6 Legislation recognising religious and traditional marriages: section 15(3)(a)(i) of the
Constitution
13.4 The rights of cultural and religious communities
13.4.1 The individual nature of these rights and how other rights both qualify and enhance
them
13.4.2 The international protection of cultural liberties
13.4.3 An analysis of the scope and content of sections 30 and 31 of the Constitution
13.5 Language rights
13.5.1 Introduction
13.5.2 The right not to be unfairly discriminated against on the basis of language
13.5.3 The right to receive education in the official language of choice
13.5.4 Languages: section 6 of the Constitution
13.5.5 The Pan South African Language Board
Copyright 2014. Oxford University Press Southern Africa.

Summary

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AN: 948967 ; Brand, Danie, Freedman, Warren, De Vos, Pierre.; South African Constitutional Law in Context
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 13.1 Introduction
South Africa is a heterogeneous society in which individuals with diverse religious affiliations, cultural beliefs and practices, and
languages must coexist. Given the heterogeneous nature of South Africa, it is important for the law to respect and protect the
beliefs, practices and languages of the diverse groups that make up South Africa’s population. This is because in a society in
which diversity is not respected or protected, the law will normally reflect the beliefs, practices and languages of the majority or
of the culturally or economically dominant group, and will marginalise the beliefs, practices and languages of discrete groups.
When the beliefs, practices and languages of discrete groups are marginalised, this not only diminishes the constitutional goal of
establishing a diverse society, but may also cause harm to members of a marginalised group. This is especially so in those cases
where the group in question is economically or politically vulnerable.
This state of affairs could arise, for example, where the law recognises and endorses the views of some sections of society
(inspired by their particular religious beliefs) that homosexuality is wrong and that gay men and lesbians do not deserve to be
treated with equal concern and respect. This would be extremely harmful to gay men and lesbians who would be marginalised
and discriminated against and who may even face threats to their physical well-being. Similarly, if the law recognises and
endorses the views of some sections of society that certain cultural practices, such as male circumcision, were harmful to all boys,
the concomitant ban on male circumcision would limit the rights of those sections of society whose cultural beliefs demand that
all young men should undergo circumcision. Again, if the law endorses the view that English should be the only medium of
communication in South Africa, this would marginalise many South Africans whose mother tongue is not English.
While it is important to respect the beliefs, practices and languages of diverse groups, it is also important to recognise that
there is an inevitable tension between doing so and preventing those beliefs, practices and languages from marginalising,
excluding and oppressing other people in society. This is so because some individual beliefs, practices and languages are
potentially harmful to other people. Also, they can exclude other people from certain benefits or from access to physical spaces or
certain opportunities. To protect individuals from such exclusion, the Constitution must balance the interests of people who hold
or practise certain beliefs or who wish to associate with members of the group they feel closest to with the interests of others in
society. Other people may be excluded by those beliefs and practices and may, consequently, be harmed by those beliefs and
practices because they are denied opportunities or benefits. This requires limiting the associational rights of diverse cultural,
religious and other groups in specific situations.
Striking the correct balance is not always easy. Sometimes the interests of some groups have to yield to the interests of other
groups. It is impossible for the law to accommodate all the diverse beliefs, practices and attitudes of all people living in South
Africa in an absolute manner while also protecting individuals against discrimination, marginalisation and exclusion.
In this chapter we discuss some of the rights where the problem of accommodating diversity arises most acutely. These rights
include the right to freedom of association, freedom of religion, the rights of cultural and religious communities, and language
rights. It is impossible to do so without keeping in mind the scope and content of the right to equality, human dignity and privacy
discussed in chapter 12 of this book. This is because the cultural and religious beliefs and practices of some groups are often in
direct conflict with the demands not to discriminate unfairly against others and to respect the human dignity of all. Although we
discuss the scope and content of the various rights in detail, we do so against the background of the broader question regarding
the manner in which the law can respect and protect cultural and religious diversity without negating the rights of other groups
who do not share the same beliefs and who do not engage in the same practices.

13.2 Freedom of association

13.2.1 Introduction
Section 18 of the Constitution provides that ‘[e]veryone has the right to freedom of association’. Freedom of association is often
said to be a foundational right for any flourishing democracy. A right to associate freely with others ‘makes participatory politics
meaningful and genuinely representative politics possible’.1 This right also allows individuals to make choices about how they
want to arrange their lives and about their identities as people in relationships with others in a given society, thus advancing
respect for and protecting diversity.2 The right to freedom of association guarantees a degree of autonomy that allows
individuals to make both overtly political and more intimate choices about who to associate with. These are choices that may
affect their lives and their identities by giving them expression in community with others.
At the heart of the right to freedom of association lies the recognition of the communal nature of people 3 and the need for
people to exercise some of their rights as individuals ‘in association with others of like disposition’. 4 It is based on an
understanding that people live in communities with others. Also, people develop their full potential only by relating to other
people either individually or collectively. In addition, people can often only engage in meaningful political action in association

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 with others. In other words, the right to freedom of association ‘protects the rights of collective self-determination’. 5 In MEC for
Education: Kwazulu-Natal and Others v Pillay, the Constitutional Court linked this notion with the concept of ubuntu, stating:

The notion that ‘we are not islands unto ourselves’ is central to the understanding of the individual in
African thought. It is often expressed in the phrase umuntu ngumuntu ngabantu which emphasises
‘communality and the inter-dependence of the members of a community’ and that every individual is
an extension of others. According to Gyekye, ‘an individual human person cannot develop and achieve
the fullness of his/her potential without the concrete act of relating to other individual persons’. This
thinking emphasises the importance of community to individual identity and hence to human dignity.
Dignity and identity are inseparably linked as one’s sense of self-worth is defined by one’s identity.
Cultural identity is one of the most important parts of a person’s identity precisely because it flows
from belonging to a community and not from personal choice or achievement. And belonging involves
more than simple association; it includes participation and expression of the community’s practices
and traditions.6

Associational rights are often instrumental in nature as they enable the individuals who form the associations to protect better and
to assert more robustly other constitutional rights.7 No wonder, then, that De Toqueville is quoted as saying that ‘no legislator
can attack [the right to freedom of association] without impairing the very foundations of society’. 8 What De Toqueville suggests
is that the right to freedom of association supports and underpins many other important rights. These include the right to make
political choices, the right to form a political party, the right to participate in the activities of that party by recruiting, organising
and campaigning on its behalf, and the right to campaign for a political party or cause. These rights are described as political
rights in the Constitution and are the very essence of a vibrant constitutional democracy.
Even though the right to freedom of association has a communal aspect, it is important to note that it is primarily a right that
belongs to the individual rather than the association that has been established to give better effect to the protection of the rights of
the individual.9 In other words, associational rights do not protect groups as groups: these rights remain individual rights that
protect the right of individuals to associate or not to associate with others or groups of others. As Summers points out:

Although commonly asserted by the organisation, freedom of association is not simply a collective right
vested in the organisation for its benefit. Freedom of Association is an individual right vested in the
individual to enable him [sic] to enlarge his [sic] personal freedom. Its function is not merely to grant
power to groups, but to enrich the individual’s participation in the democratic process by his [sic]
acting through those groups.10

The Constitutional Court affirmed this point in Pillay where O’Regan J stated that associative rights such as the right to belong to
cultural, religious and linguistic communities are exercised by the individual person. 11 They are not rights that attach to the
group. This does not mean that the right is not related to the need for individuals to belong to organised or informal organisations
or groupings. To advance their political, social, cultural, religious, recreational, charitable, educational and other interests or
objectives, individuals band together in organisations. This is because individual interests are often better served if they are
advanced by associations of like-minded persons. However, it is not the right of the organisation that is protected. Nor is the right
of the group who belongs to the organisation protected. Rather, the right of the individual to belong to that organisation is
protected. This is so because the right recognises the autonomy of the individual to advance his or her interests in concert with
others in this manner.
As suggested above, the right to freedom of association is closely related to and sometimes overlaps with other rights such as
the right to human dignity and the right to privacy. 12 In the previous chapter we noted that the Constitutional Court has
recognised that the right to human dignity contains an associational element at least as far as intimate relationships, such as
marriage, are concerned. Thus, in Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v Minister
of Home Affairs and Others; Thomas and Another v Minister of Home Affairs and Others , the Constitutional Court held that a
‘decision to enter into a marriage relationship and to sustain such a relationship is a matter of defining significance for many if
not most people’ and to limit this right would clearly constitute an infringement of the right to dignity. 13
However, because of problems related to the accommodation of diversity raised in the introduction to this chapter, it must be
noted that difficult questions arise about the scope and content of the right to freedom of association. This is because the need to
respect this right sometimes clashes directly with the need to respect other important rights such as the right to human dignity, the
right not to be unfairly discriminated against and the right to freedom of movement. Associational rights can be used to exclude
and marginalise others. Many seemingly private institutions or bodies are powerful because they provide access to goods,
services, benefits and opportunities. Their actions can therefore have a detrimental effect on the well-being of those individuals
whom they exclude, marginalise or discriminate against.
The more powerful the body is and the more serious the potential harmful effect of that body’s actions on others is, the less

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 likely it is that the members of that body will be allowed to exercise their right to freedom of association in an untrammelled
manner. This is because seemingly private bodies created to ensure that individuals can exercise their right of association in
conjunction with others of like mind may well exclude and marginalise certain people. The actions of these bodies may send a
signal that the people whom they exclude or marginalise are less worthy of constitutional concern and respect. Their actions can
also deny certain individuals access to benefits and opportunities in a manner that is discriminatory.
The problem is particularly acute where so-called private bodies provide a service to the public. The owner of a holiday
resort catering for white Afrikaans, Christian holiday makers, for example, may wish to restrict access to that holiday resort to
white, heterosexual visitors. Given that the holiday resort provides a benefit and a service to the public, those people who are
excluded from enjoying the benefit are harmed as they will never be able to enjoy the same privileges as the people
accommodated by the holiday resort. The question arises whether the holiday resort is entitled to invoke the right to freedom of
association to justify its discrimination against black South Africans or against gay and lesbian South Africans. When a holiday
resort excludes a person because of his or her race or sexual orientation, this can send a powerful signal to that person and the
group to whom he or she belongs that he or she is not equally valued in society and cannot access the same benefits and services
provided by the ostensibly ‘private’ body that others can access.
In the following sections we explore the scope and content of the right to freedom of association with reference to this
dichotomy. As we will see, the conundrum the courts often face is to balance the rights of individuals in the association asserting
their autonomy with those of others seeking access to the association.

PAUSE FOR REFLECTION

Examples of issues raised by the accommodation of diversity within the framework of

associational rights
The following examples illustrate the issues raised by the accommodation of diversity within the framework
of associational rights.
The Afrikaanse Taal en Kultuur Vereeniging (ATKV) is a cultural organisation that promotes Afrikaans
culture and Christianity. It owns a number of holiday resorts in various parts of the country. These resorts
are open to all who can pay the entrance fee and the costs of hiring the bungalows. However, members of
the ATKV are entitled to a 20% discount if they visit the resorts. To be admitted as members, applicants
have to commit to advancing the Afrikaans culture and Christianity.
Mr Mohamed and Mr Omar regard themselves as ‘Afrikaners’ and have no difficulty committing to
advancing Afrikaans cultural interests. However, as they are Muslims, they delete the part of the application
form calling for a commitment to advancing Christianity. As a consequence of this, their application to join
the ATKV is turned down.
Say that Mr Mohamed and Mr Omar were to challenge the rules for joining the ATKV on the basis that
these rules unfairly discriminated against them on the basis of their religion. The ATKV would then probably
argue that Christians have a right to freedom of association and that this right should trump the right against
unfair discrimination.
In determining whether the ATKV acted lawfully by excluding the Muslim applicants, a court will have to
decide which of the rights should prevail in the particular circumstance. The answer the court gives will
probably depend on the importance it attaches to the right to non-discrimination in relation to the right to
freedom of association. As we continue the discussion of freedom of association, it would be helpful to keep
in mind this example.
Now imagine that the body that is discriminating against Muslims is not the ATKV providing a public
service in the form of access to various holiday resorts, but a private book club. Mr Van der Merwe hosts
the book club in the privacy of his own home in Waterkloof or Sandton. Mr Van der Merwe started the book
club with the specific aim of creating a safe environment where he and his likeminded friends could discuss
books with a Christian theme (provided to the club by CUM Books), which they have all eagerly read. Most
people would probably instinctively think that – unlike the ATKV – Mr Van der Merwe should be allowed to
discriminate against non-Christians. As the nature of the benefit denied to others is limited and as the
association is of an extremely private nature, this view would almost certainly conform to the legal position.
As we continue discussing this issue, it would be helpful to reflect on what basis such a determination
would be made.

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 13.2.2 The scope and content of the right to freedom of association: general principles
The right to freedom of association protects the right of individuals:
• to associate with whom they wish
• to disassociate from whom they wish
• to form intimate bonds or relationships with others with whom they share common interests or cultural or religious attitudes
and beliefs
• to protect those relationships from untoward infringement by the state or other powerful role players.

Importantly, the right to freedom of association supports the right to form religious, cultural and linguistic associations to give
greater expression to the protection of cultural liberties. As such, freedom of association safeguards the liberty of individuals to
decide for themselves how they want to live and with whom they want to associate in the private sphere. In the United States
context, Brennan J affirmed this point in Roberts v United States Jaycees where he stated:

The Court has long recognized that, because the [United States] Bill of Rights is designed to secure
individual liberty, it must afford the formation and preservation of certain kinds of highly personal
relationships a substantial measure of sanctuary from unjustified interference by the State.14

The constitutional shelter afforded such relationships reflects the realisation that individuals draw much of their emotional
enrichment from close ties with others. Providing a degree of protection to these relationships from unwarranted interference by
the state and by powerful private bodies therefore safeguards the ability of a person to define independently his or her identity
that is central to any concept of liberty.
Examples of intensely private relationships protected by this right include the institution of marriage, the raising of children
and cohabiting with a person’s partner.15 In Roberts v United States Jaycees, Brennan J distinguished those associations that
have an intrinsic element of personal liberty from associations situated at the other end of the continuum such as large business
enterprises. He correctly argued that the constitutional constraints on the state’s power to regulate private intimate associations
were greater than the constraints on its power to regulate business enterprises. The state’s power to control the selection of a
person’s partner in an intimate relationship is severely curtailed but not so in respect of decisions to select employees. 16
As a general rule, the more public the activity is and the further removed the activity is from the intimate activities of an
individual, the less likely it is that the right to freedom of association will protect an activity and prevent intrusion into or
regulation of that activity. This is especially so where the activity excludes others or is harmful to others. So, the state cannot
force a person to marry somebody of the opposite sex or of a different racial identity as these activities are deeply personal and
close to the core of the individual’s private beliefs and attitudes. However, the state may well prohibit a large company from
discriminating against homosexuals or against black people when employing staff or when deciding whether to provide a service
to them.
Between these two extremes lies a large number of voluntary, semi-private associations that contribute towards the
enrichment and happiness of individuals in different ways. These associations are semi-private because they fulfil some public
function or provide a service or benefit to the public. However, these semi-private associations constitute a grey area where it will
not always be easy to decide whether intrusion by the state or others would be constitutionally warranted or not. The state’s reach
into these organisations depends on the nature of the organisation, the impact it has on the public, the extent to which it regulates
economic and social mobility, and the constitutional right that the association furthers and protects. According to Brennan J, the
size, purpose, policies, selectivity, congeniality and other characteristics of an association may be pertinent in determining
whether it should be subject to state regulation.17
When a court has to make a determination as to the constitutionality of exclusionary practices, it will consider the nature of
the constitutional right a party seeks to enforce as well as the potentially negative effect this has on the other party whose right the
association seeks to enforce. Thus, if, on the one hand, the association has been formed for commercial activities, thus affecting
the right to choose a trade, occupation and profession, the state may have greater latitude in reaching into the domains of these
associations. If, on the other hand, the constitutional rights that the association seeks to protect, promote and enhance relate to
religion, culture and language, then the reach of the state may be more circumscribed. Similarly, if the state seeks to invade the
associational rights of an organisation in a manner that poses a real risk to the organisation’s members or if such an intrusion
would have a detrimental effect on individuals joining the organisation or association, then courts may well attempt to protect
such rights in a robust fashion.

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 PAUSE FOR REFLECTION

The right to freedom of association indispensable where a group holds dissident

beliefs
The National Association for the Advancement of Coloured People (NAACP) is a civil rights
non-governmental organisation that seeks to ensure that black people in the United States are accorded
their constitutional rights. In the 1950s and 60s, they engaged in protest action and litigation in many states
in the south of the USA where legally sanctioned racial discrimination was rife. In NAACP v Alabama,18 the
state of Alabama demanded the names and addresses of all the NAACP members in Alabama. This would
have enabled the state to see who was contributing effort and funds to the organisation. The US Supreme
Court held that the compulsory disclosure of membership lists would violate the associational rights of
members and that ‘privacy in group association may in many circumstances be indispensable to
preservation of freedom of association, particularly where a group espouses dissident beliefs’.19

Apart from safeguarding the liberty of individuals to decide for themselves how they want to live and with whom they want to
associate, associational rights are also protected to prevent ‘capture’.20 Associations require their members to expend time,
energy and funds on building the organisation. Members readily volunteer because of their commitment to the cause. The right to
freedom of association allows the organisation to adopt policies to prevent persons with aims that are inimical to the objectives of
the organisation from ‘capturing’ the organisation and subverting its objectives. Thus in Royal Society for the Prevention of
Cruelty to Animals (RSPCA) v Attorney-General,21 the English Court upheld exclusionary policies of the RSPCA designed to
remove and exclude members who wished to change the society’s policy on hunting and blood sports. Given the RSPCA’s
commitment to the humane treatment of animals, policy changes favouring hunting and blood sports would effectively result in
the ‘capture’ of the society and change its focus and emphasis. The Court held that the RSPCA’s exclusionary policies were
consistent with the Human Rights Act of 1998. The close nexus between the objectives and the exclusionary policies and the
limited impact on the rights of the people denied admission or excluded from the organisation adequately justified the policy of
the organisation and rendered it permissible.22
A corollary of the right to associate is the right to dissociate. Thus, in Hurley v Irish-American Gay, Lesbian and Bisexual
Group of Boston,23 the US Supreme Court held that the right to dissociate included the right to exclude unwanted members and
unwanted messages. The organisers of a St Patrick’s Day parade were willing to allow gay men and lesbians to participate in the
parade, but refused to allow them to march as a unit under their own banners. The Court held that the parade organisers had a
right to refuse to endorse a message supporting gay rights which would be conveyed by permitting the banners. The Court held
that ‘it boils down to the choice of a speaker not to propound a particular point of view, and the choice is presumed to lie beyond
the government’s power to control’.24

13.2.3 Societal interests overriding association rights

The right to freedom of association is not an unqualified right. As discussed in the introduction to this chapter, a tension may
arise between the right to associate and the important interests of others and of the broader society. Sometimes the state may
therefore wish to interfere with the right to freedom of association to secure the safety of society, to protect the dignity of all
citizens and to facilitate greater political participation.25 For example, the state may ban criminal associations to protect society
against the dangers of organised crime. The state may also interfere with the right to freedom of association to ensure that certain
groups open themselves up to a wider potential membership because such organisations control access to important social goods.
The extent to which the function being fulfilled by the association fulfils a public function will also play an important role in
deciding on whether the association could be limited. The more the public goods distributed by an association or the more public
its function, the more likely it is to be subject to legitimate state intervention. 26 The state may therefore interfere with the
freedom of association in certain contexts. We discuss examples of this in the sections that follow.

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 13.2.3.1 Equality
Certain associations may be required to ‘open themselves up to a wider potential membership because they control access to
important social goods’.27 One way in which this is mandated in the South African context is by the Promotion of Equality and
Prevention of Unfair Discrimination Act (PEPUDA).28 The PEPUDA asserts the primary importance of equality concerns and
presents a challenge to the right to freedom of association. This is especially so because the PEPUDA seems to challenge control
over membership policies and the internal affairs of every private organisation and institution in the country. As membership
policies and the organisation of internal affairs are often critical to an association’s identity, the PEPUDA could, in effect, force a
change in these policies. The PEPUDA therefore represents a severe limitation on the general right to freedom of association. 29
Section 6 of the PEPUDA states that ‘[n]either the State nor any person may unfairly discriminate against any person’. As we
have seen in chapter 12, when a private individual or organisation discriminates against an individual, say by excluding that
person from membership of the organisation on the basis of his or her race, gender or sexual orientation, the onus is on the party
who discriminated to prove that the discrimination was not unfair but rather that it was fair. Sections 14(2) and (3) of the
PEPUDA set out the factors a court must take into account when determining whether the respondent has proven the
discrimination to be fair. These factors are:
• the context
• whether the discrimination reasonably and justifiably differentiates between persons according to objectively determinable
criteria intrinsic to the activity concerned
• whether the discrimination impairs or is likely to impair human dignity
• the impact or likely impact of the discrimination on the complainant
• the position of the complainant in society and whether he or she suffers from patterns of disadvantage or belongs to a group
that suffers from such patterns of disadvantage
• the nature and extent of the discrimination
• whether the discrimination is systemic in nature
• whether the discrimination has a legitimate purpose
• whether and to what extent the discrimination achieves its purpose
• whether there are less restrictive and less disadvantageous means to achieve the purpose
• whether and to what extent the respondent has taken such steps as are reasonable in the circumstances to address the
disadvantage which arises from or is related to one or more of the prohibited grounds or to accommodate diversity.

A private organisation whose policies regarding admission discriminate against an individual based on his or her sexual
orientation, for example, would have to argue that the exclusion is ‘intrinsic to the activity’ of that organisation and that it is not
based merely on prejudice or irrelevant attitudes that fuel discrimination. 30 The organisation may also argue that the
discrimination has a legitimate purpose and, as such, can be justified. In each case, a court has to determine whether the
discrimination is intrinsic to the nature of the organisation and its purpose in the manner discussed in chapter 12. In each case the
association claiming a right to association in potential conflict with the PEPUDA will have the burden of showing that its
associational interests trump the interests to equality. This will not always be easy to do.

13.2.3.2 Democracy
The state may also interfere in the right to freedom of association in the furtherance of the goals of democracy. This may require
organisations in certain contexts to structure their internal affairs in a more democratic and egalitarian fashion. 31 In each case the
question would be to what extent the state’s interest in the integrity of a democratic process and in the maintenance and protection
of a democratic society justifies the limitation on the association’s right to order its affairs as it wishes and to pursue the goals it
was set up to pursue. The freedom of political parties to arrange their internal affairs as they wish and to pursue the ends they
were set up to pursue will potentially be acutely affected by the need to safeguard democracy. This will be less evident if we start
from the premise that political parties and other associations are largely private entities created to pursue private ends. 32
However, if our premise is that political parties and other associations are essential for a functioning representative democracy, a
more onerous burden will fall on political parties to be structured along democratic lines and not to pursue undemocratic ends.
In Germany, for example, the German Constitutional Court banned the Socialist Reich Party (SRP) in 1952 and the
Communist Party of Germany (KPD) in 1956. According to article 21, paragraph 2 of the German Basic Law, parties which, by
reason of their aims or the behaviour of their members, seek to impair or destroy the free democratic order or to endanger the
existence of the Federal Republic of Germany are unconstitutional. 33 Thus, legislation may attempt to force political
organisations to structure themselves in a more democratic and egalitarian way.
In the United States, in Buckley v Valeo,34 the US Supreme Court confirmed the constitutionality of laws requiring
compulsory disclosure of the source of campaign contributions over $10 and in respect of political contributions of more than

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 $100 per annum. The applicants in this case argued that the laws violated the associational rights of minor parties and small
contributors. The Court held that associational rights were infringed. However, the countervailing state interests were sufficiently
important to outweigh the limitation on the right to freedom of association. 35 The societal interests identified in this case were
the need to help the electorate evaluate the candidates standing for office by disclosing the identity of their supporters, the need to
avoid corruption and the appearance of corruption, and the need to gather data required to enforce the contribution limits set
down in other laws.36
In Institute for Democracy in South Africa and Others v African National Congress and Others ,37 the High Court adopted a
different approach. In this case, the Institute for Democracy in South Africa (IDASA) brought an application in terms of the
Promotion of Access to Information Act (PAIA) 38 against all the major political parties for access to their donation records
regarding the date of donation, name of the donor, amount or value of the donation and the conditions, if any, on which the
donation was made or received. In the main, the African National Congress (ANC) resisted the application on the basis that there
should be comprehensive legislation on this issue as opposed to having to disclose information on an ad hoc basis.
The Court was of the opinion that the political parties for the purposes of this application were to be regarded as private
bodies. In terms of the PAIA, an applicant had to demonstrate that they required the information from the private body for the
exercise or protection of any rights.39 One of the arguments made by the applicants was that they required the records to assist
citizens to make more accurate political choices and to choose between the various parties. Disclosure of financial benefactors
would place citizens in a better position to make these decisions. The Court was of the view that this did not adequately
demonstrate ‘how the donation records would assist them in exercising or protecting any of the rights on which they rely or why,
in the absence of these donation records, they are unable to exercise those rights’. 40 It went on to hold:

On the face of it, section 19(1) prevents any restrictions being imposed on a citizen’s right of making
political choices, such as forming a political party, participating in the activities of and recruiting
members for a party, and campaigning for a political cause. Similarly, the right to ‘free, fair and
regular elections’ enshrined in section 19(2) does not impose a duty on political parties to disclose
funding sources, nor does it afford citizens a right to gain access to such records. The emphasis in
section 19(2) lies upon the elections and the nature of the electoral process and not so much upon the
persons or parties participating in those elections.41

The application was unsuccessful. This interpretation of section 19 is narrower than that required to develop a constitutional
democracy. The right to vote must include the right to make properly informed political choices. Knowing the identity of the
financial benefactors of political parties would enable the electorate to know potential sources of influence in that party and hence
whether it is deserving of their vote. This information would enable them to exercise their right in a more effective manner. Given
these arguments, the Court ought to have found that the information was required for the exercise or protection of rights and then
determined whether the parties could refuse disclosure in terms of the exceptions listed in the PAIA.
In Ramakatsa and Others v Magashule and Others, the Constitutional Court found that the Constitution requires political
parties to act lawfully.42 In the context of section 19 of the Constitution, which guarantees for every citizen the right to
participate freely in the activities of a political party, the Court found that there was a duty on every political party ‘to act lawfully
and in accordance with its own constitution’.43 This means that the Constitution gives every member of every political party the
right to exact compliance with the constitution of a political party by the leadership of that party. Courts can therefore scrutinise a
political party’s constitution to establish whether that party has acted in accordance with its own constitution and may set aside
decisions of that party where the party has failed to adhere to its own constitution. 44 The Court emphasised that in the South
African system of democracy, political parties ‘occupy the centre stage and play a vital part in facilitating the exercise of political
rights’.45 Therefore, political parties are indispensible conduits for the enjoyment of some of the rights included in the Bill of
Rights.46
Arguably, the implication of this judgment is that political parties must operate in an essentially democratic manner and that
political parties cannot pursue policies that, at their core, are aimed at destroying the constitutional democracy established by the
Constitution. However, the Constitutional Court has not provided a definitive answer on how to approach the question of political
parties whose aim is to overthrow our constitutional democracy.

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 CRITICAL THINKING

Is the infringement of the right to freedom of association justifiable in the interests of

preserving constitutional democracy in South Africa?
As we have seen, some political parties exercise significant power in South Africa. In 2013, after Mr Julius
Malema was expelled from the ANC, he came together with other interested individuals and formed a new
political formation called the Economic Freedom Fighters (EFF). The Constitution of the EFF sets out its
aims as follows:

1. ECONOMIC FREEDOM FIGHTERS (EFF) is a Political organization styled as a Political

Party which seeks to act in the interests of all South Africans striving for ECONOMIC
EMANCIPATION IN OUR LIFE TIME.
2. The EFF is anti-capitalist, anti-racist, anti-sexist and anti-imperialist in its world outlook
and is driven by sound democratic socialist values where the leadership is accountable to
the membership which elected it.
3. The basic programme of the EFF is the complete overthrow of the neo liberal anti-black
state as well as the bourgeoisie and all other exploiting classes; the establishment of the
dictatorship of the people in place of the dictatorship of the bourgeoisie and the triumph of
socialism over capitalism. The ultimate aim of the EFF is the realization of socialism
through people’s power and the establishment of a state that responds to the needs of its
people.
4. The EFF is a vigorous vanguard organization leading the revolutionary masses in the fight
against the class enemy.
5. The EFF takes socialism as the theoretical basis guiding its thinking and development of
its political line and in this respect identifies itself as a MARXIST, LENINIST, and
FANONIAN organisation.
6. Members of EFF, who dedicate their lives to the struggle for socialism must be resolute,
fearless and surmount every difficulty to win victory! 47

The EFF Constitution thus states that one of its aims is the overthrow of the current state and replacing it
with a ‘dictatorship of the people’. Any move to prohibit the EFF from participating in elections or from
operating in South Africa in line with these goals will be met by arguments regarding freedom of
association. If the EFF is banned and individuals are prohibited from belonging to the party, it will infringe
on the right of freedom of association of everyone as well as the right of every citizen to form a political
party and to take part in its activities guaranteed in section 19 of the Constitution. The question that will
face a court in such an event is whether the infringement of the rights is justifiable in the interests of
preserving constitutional democracy in South Africa.

13.2.4 Balancing rights

It is not uncommon for the right to freedom of association to clash with other rights and the adjudicating body then has to strike
an appropriate balance between the competing rights. In Forum for Black Journalists v Katy Katopodis,48 the Appeal Committee
of the South African Human Rights Commission (SAHRC) had to consider whether a group of black journalists could
constitutionally exclude white journalists from a meeting of their organisation. The primary objective of the Forum for Black
Journalists (FBJ) is the ‘upliftment of black journalists in general and the African in particular’. 49 FBJ organised an imbizo which
was addressed by Mr Jacob Zuma, the President of the ANC, as part of its relaunch. This was before Mr Zuma became President
of South Africa. The FBJ directed invitations exclusively to black journalists, but these invitations were not restricted to members
of the organisation. White journalists who attempted to attend the imbizo were either denied entry or requested to leave.
The FBJ argued that the right to associate, especially of a private body, includes the right to dissociate. All the FBJ had to
demonstrate was a rational connection between the discriminatory policy and the association’s ends. It justified its closed
membership by pointing to the legitimate objective of preventing the dilution of its voice in its pursuit of substantive equality.
The white journalists contended that excluding them from the meeting solely on account of their race amounted to unfair
discrimination on the basis of race.
The Appeal Committee of the SAHRC found that the FBJ could not be described as an intimate or private association as its
membership was open to all black journalists in the country. 50 It lay on the continuum between an intimate or private
organisation and an overtly public organisation.51 The more public an organisation is, the more difficult it is to justify exclusions

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 in furtherance of the freedom of association.52 The Appeal Committee found that the purpose of uplifting black journalists in
general and Africans in particular was a legitimate objective.53 In defence of its racially exclusive admissions policy, the FBJ
relied heavily on their right to freedom of association. The Committee reasoned as follows:

The issue before us is whether the FBJ acted in a constitutionally impermissible fashion when it
decided to exclude white journalists from its membership and prevented them from attending the
Imbizo. The assertion by the respondent is that the rights to dignity and not to be subjected to unfair
discrimination on the basis of race have been infringed by the policies and practices of the appellant.

Not admitting white journalists on the basis of their race to the Imbizo and excluding them from
membership of the FBJ on the same basis is clearly invasive of their right to dignity. The issue is
whether the benefits that accrue to the organisation justifies [sic] this intrusion …

… , the Supreme Court of Appeal in Midi Television (Pty) Limited t/a e-tv v Director of Public
Prosecutions 54 had to reconcile and balance the freedom of expression and the right to a fair trial. The
following was stated:

Where the constitutional rights themselves have the potential to be mutually limiting – in that the
full enjoyment of one necessarily curtails the full enjoyment of another and vice versa – a court
must necessarily reconcile them. They cannot be reconciled by purporting to weigh the value of
one right against the value of another and then preferring the right that is considered to be more
valued, and jettisoning the other, because all protected rights have equal value. They are rather to
be reconciled by recognising a limitation upon the exercise of one right to the extent that it is
necessary to do so in order to accommodate the exercise of the other (or in some cases, by
recognising an appropriate limitation upon the exercise of both rights) according to what is
required by the particular circumstances and within the constraints that are imposed by
Section 36.55

The judgment of the Appeal Committee of the SAHRC goes on to state:

In determining the extent to which the full exercise of one right to the other or both of them might need
to be curtailed in order to reconcile them what needs to be compared with one another are the ‘extent
of the limitation’ that is placed upon the particular right, on the one hand, and the ‘purpose,
importance and effect of the intrusion’, on the other hand. To the extent that anything needs to be
weighed in making that evaluation it is not the relative values of the rights themselves that are weighed
(I have said that all protected rights have equal value) but it is rather the benefit that flows from
allowing the intrusion that is to be weighed against the loss that the intrusion will entail. It is only if the
particular loss is outweighed by the particular benefit, to an extent that meets the standard that is set
by section 36, that the law will recognise the validity of the intrusion.

Thus the submission by the appellant that it can adopt a racially exclusive membership policy provided
that it demonstrates a rational connection between its discriminatory policy and the association’s ends
is inconsistent with comments made in the VA report and with the dicta from Midi Television quoted
above. The FBJ has the right to form an association to uplift black journalists and exclude persons
whose objectives are inimical to its founding values. FBJ used race as the criterion and formed the
view that all white journalists should be excluded from their organisation. No argument has been made
as to why the less intrusive admission policy which required a full commitment to the values and goals
of the organisation would not have been sufficient to protect its distinct ‘voice’ and identity. The
imprecise and blunt instrument of racial exclusivity was relied upon notwithstanding the egregious
impact of exclusions upon people who may have supported the broader objectives of the organisation.
There is nothing before us which leads us to conclude that the racially exclusive membership policies
and practices bring a legitimate benefit to the FBJ which justifies the infringement of the right to
dignity of the persons excluded on the basis of race. In the circumstances, we find that the exclusion of
the white journalists both from the Imbizo and from membership of the FBJ is not justified in terms of
section 36 of the Constitution.56

The Appeal Committee of the SAHRC thus found against the FBJ in this case. As will be apparent from the above, it is necessary
to determine what benefit accrues as a consequence of the exclusion. The benefit must then be weighed against the cost
occasioned by such exclusion. The courts will sanction the exclusion if the benefit outweighs the cost of the exclusion and is a
reasonable and proportionate response.

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 CRITICAL THINKING

When can the right to freedom of association justifiably be used to exclude others from
associating with the organisation?
This question is a source of great jurisprudential and moral anxiety, partly because the ability to associate
holds potential financial and social benefits. Excluding some from these benefits on the basis of personal
attributes or characteristics may therefore harm those who are excluded.
White suggests certain rules to deal with this difficult question.57 The first rule or guideline White
suggests is that an exclusionary rule is presumptively legitimate if it is purpose-protecting. In other words,
if an exclusionary rule is aimed at protecting the very purpose for which the association was created, it will
be presumed to be legitimate.58
However, White suggests a second rule, namely that if an exclusionary rule is opportunity-depriving,
the rule must presumptively be viewed as not being legitimate. In other words, if by excluding individuals
from the association they are potentially deprived of opportunities, it will be difficult to justify the exclusion.
59
A third rule is that the presumption of legitimate exclusion is especially strong if the rule is integrity
-protecting. In other words, where the formation of an association is particularly important to allow an
individual to exercise his or her liberties of conscience or expression, then there will be a strong
assumption that the exclusionary rule that safeguards this associational space should be held as being
legitimate.60
Of course, it will be clear that these three rules could easily be in tension with one another. An
exclusionary rule that is purpose-protecting as well as integrity-protecting can be so drastically
opportunity-depriving that it would not be held to be valid. For example, a rule that allows a religious school
to exclude female learners on the grounds that male and female learners must be taught separately may be
both purpose-protecting and integrity-protecting. But where that school offers a high-quality education and
provides its graduates with opportunities in life that are not easily provided to others in the same
community, the rule may also be opportunity-depriving. This is because female learners will be deprived in
a drastic manner of some of the opportunities that are available to male learners. Consequently, it is far
from clear whether such a rule conforms with the right to freedom of association.

13.3 Freedom of religion, belief and opinion

13.3.1 Introduction
Freedom of religion and conscience – the freedom to hold views about religious and other moral issues and the freedom to
practice those beliefs – goes to the heart of what it means to be human in a modern democracy. In the open and democratic
society contemplated by the Constitution, both the religious beliefs held by the great majority of South Africans as well as the
beliefs of non-believers and minority faiths must be fully respected. 61 As the Constitutional Court pointed out in Minister of
Home Affairs and Another v Fourie and Another:

For many believers, their relationship with God or creation is central to all their activities. It concerns
their capacity to relate in an intensely meaningful fashion to their sense of themselves, their community
and their universe. For millions in all walks of life, religion provides support and nurture and a
framework for individual and social stability and growth. Religious belief has the capacity to awaken
concepts of self-worth and human dignity which form the cornerstone of human rights. Such belief
affects the believer’s view of society and founds a distinction between right and wrong. It expresses
itself in the affirmation and continuity of powerful traditions that frequently have an ancient character
transcending historical epochs and national boundaries. For believers, then, what is at stake is not
merely a question of convenience or comfort, but an intensely held sense about what constitutes the
good and proper life and their place in creation.62

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 However, non-believers may hold similarly strong and profound views about the meaning of their lives not based on religious
beliefs. This means that religious beliefs or the absence of such beliefs – however honestly and sincerely held – ‘cannot influence
what the Constitution dictates’.63 This conundrum highlights the fact that freedom of religion and conscience is a right that
demands serious engagement with the notion of diversity: how to accommodate different and often diametrically opposed beliefs
and views about the world, while respecting and accommodating these diverse beliefs and views.

PAUSE FOR REFLECTION

How religious are South Africans?

South Africans are truly diverse as far as their beliefs are concerned. Although statistics differ widely
depending on who measures them, a 2011 survey found that the number of people in South Africa who
consider themselves religious has dropped by 19%. According to the poll, released by the Win-Gallup
International Religiosity and Atheism Index which measures global self-perceptions on belief, religious
South Africans dropped from 83% in 2005 to 64% in 2012.64 Official figures from the South African census
are different regarding religious adherence. Table 13.1 contains the latest available figures from the census
and provides a breakdown of those who adhere to various religious beliefs in South Africa.

Table 13.1 Census statistics regarding adherents of religious beliefs

Religion Adherents % Adherents %

200165 2007 66

Christianity 35 750 641 79,77 29 684 861 73,52

Non-religious 6 767 165 15,10 3 262 428 8,08

Other 283 815 0,63

Buddhism/Chinese folk 12 113 0,03

Islam 654 064 1,46 985 460 1,45

Undetermined 610 974 1,36

Hinduism 551 668 1,23 504 707 1,25

African traditional belief 125 898 0,28 6 056 487 15,00

Judaism 75 549 0,17 68 640 0,17

To accommodate diversity in the realm of belief, section 15(1) of the Bill of Rights guarantees the right of everyone to ‘freedom
of conscience, religion, thought, belief and opinion’ while section 15(2) deals with the circumstances under which religious
observance may be conducted in state or state-aided institutions. In a heterogeneous and multicultural society like South Africa,
the protection of the right to freedom of conscience, religion, thought, belief and opinion takes on a special significance. It signals
the Constitution’s unique concern with the protection of people with diverse beliefs and opinions. It recognises the importance of
accommodating the views, opinions and practices of people with diverse world views and religious beliefs that will often be in
conflict with one another. This right contained in section 15 is therefore an important right through which we accommodate and
carefully manage diversity in our society.
In this regard, the grouping together of the freedom of conscience, religion, thought, belief and opinion is significant. The
deliberate clustering of these rights signifies the protection of the right to hold the religious beliefs of a person’s choice, together

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 with the right to entertain agnostic or atheistic views and other beliefs. It thus protects the right to believe in a particular God or
Gods and the religious teachings associated with a belief in that God or Gods; the right to remain uncertain about believing in a
God or Gods and the religious teachings associated with a belief in that God or Gods; as well as the right not to believe in any
God at all. In other words, the fact that the right protects freedom of conscience, religion, thought, belief and opinion indicates
that the scope of its protection journeys beyond protecting the right to believe in a supreme being. 67
However, it is not only the right to believe or not to believe that is protected by section 15 of the Bill of Rights. Section 15
also protects the right to act in accordance with those beliefs or non-beliefs and for a person to organise his or her life in a
manner that demonstrates allegiance to the particular chosen belief system. As pointed out by Sachs J in the Constitutional Court
judgment in Christian Education South Africa v Minister of Education, the right of an individual to act or not to act in accordance
with his or her beliefs is one of the key ingredients of a person’s human dignity. 68 For many people, their relationship with their
God or creator is central to their being and often influences much of their interaction both with their sectarian peers and with
secular society.69 For others, their rejection of the idea of a higher being or creator is central to their personality.
The persecution of people because of their religious beliefs or their refusal to believe has been the cause of intense conflict,
upheaval and strife. Such strife is often caused when the state treats one religion more favourably than other religions or when the
state treats religion or non-religion in a more favourable manner. In this regard, the manner in which the state treated religion
during the apartheid era is significant. Prior to 1994, the state officially endorsed a certain version of Christianity and the state
was often described as a Christian Nationalist state.70 The apartheid state passed several laws to promote a specific conception of
the Christian religion, giving credence to the perception that the state favoured a certain narrow form of Christianity above other
religions and above non-religion.71 Primary and secondary education in public schools reserved for white children was based on
the principle of Christian national education while education in schools reserved for black children had to have a Christian
character.72 The pre-democratic state also refused to recognise the validity of marriages that did not conform to the Christian
prototype.73 The judiciary, too, was not free from demonstrating a preference for Christianity. In 1917, a South African judge
even identified Christianity with what he called ‘civilized peoples’.74
This history of preferential treatment for a certain version of Christianity above other religions and non-religion does not
mean that Christianity should not be respected and protected as the dominant religion in South Africa in the post-apartheid era. In
fact, although the Constitutional Court has insisted that the rights of non-believers and minority faiths must be fully respected, it
has also emphasised the need to respect the religious beliefs held by the majority of South Africans. 75 The Constitutional Court
has pointed out that while religion is an intensely personal issue, it would nevertheless not be appropriate in all cases to relegate
religious practices and observance to the private sphere.76 Religious bodies play a large and important part in public life through
schools, hospitals and poverty relief programmes. In addition, religious bodies ‘command ethical behaviour from their members
and bear witness to the exercise of power by state and private agencies’. 77 Religious bodies also ‘promote music, art and theatre’
and ‘provide halls for community activities’.78 As such, they form part of the very fabric of society.79 However, the Court also
warned that while this role must be recognised, it must be done in a manner that does not infringe on the rights of those who do
not share the beliefs of the majority religion as ‘[m]ajoritarian opinion can often be harsh to minorities that exist outside the
mainstream’ (our emphasis).80 What is needed is to strike a balance between recognising and respecting the religious beliefs of
the majority and protecting those people and groups whose views do not conform to that of the majority. The Court stated:

In the open and democratic society contemplated by the Constitution there must be mutually
respectful co-existence between the secular and the sacred. The function of the Court is to recognise the
sphere which each inhabits, not to force the one into the sphere of the other. Provided there is no
prejudice to the fundamental rights of any person or group, the law will legitimately acknowledge a
diversity of strongly-held opinions on matters of great public controversy. I stress the qualification that
there must be no prejudice to basic rights.81

By recognising the need to accommodate both the secular and the sacred within the framework of managing a diverse society,
section 15 of the Constitution does not require a strict separation between the state on the one hand and religious institutions and
organisations on the other. In the following sections we discuss the scope and content of the right to freedom of conscience and
religion. We explore the ways in which the religious beliefs of the majority can be respected and recognised within the
constitutional framework while also providing protection for those people who adhere to minority beliefs and those people who
are not religious at all.

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 PAUSE FOR REFLECTION

The nuanced relationship between the secular and the sectarian spheres of our society
The Constitutional Court considered the nuanced relationship between the secular and the sectarian
spheres of our society in Fourie, a case that dealt with the recognition of same-sex marriage. The Court
had to determine whether the non-recognition of same-sex marriages was inconsistent with the
Constitution. If so, the Court had then to determine what needed to be done to remedy the situation.
One of the arguments made was that if the law was under-inclusive by not recognising same-sex
unions, the situation should be remedied by providing an appropriate alternative form of recognition to
same-sex unions and not by accommodating these unions within the existing institution of marriage. This
argument was premised on the religious belief of some that the institution of marriage is restricted to the
union of one man and one woman and thus cannot be extended to include same-sex unions. To extend the
definition of marriage would, according to this submission, amount to a significant infringement of the right
to freedom of religion of those people who believed in the religious texts that defined marriage as the union
of one man and one women.
The Court recognised the broad and important role that religion plays in the life of society through the
provision of schools and hospitals, by poverty alleviation programmes and other initiatives that enrich
people’s lives.82 According to the Court, these activities form part of the fabric of a diversified society and
must be recognised as such.83 However, the Court reasoned that this did not mean that religious texts
must be used to interpret the Constitution. There had to be a mutually respectful coexistence between the
secular and the sacred.84 The state should not intervene in the spiritual or sacred sphere by pronouncing
on religious texts or by insisting that all religions solemnise same-sex marriages. Similarly, when the state
affords same-sex couples the same status, entitlements and responsibilities as heterosexual couples, it
does not impinge on the right of religious organisations that do not wish to solemnise same-sex marriages.
85 By doing so, it is simply functioning within the secular sphere over which the Constitution is supreme.86
Thus, the rights of the religious groups functioning within their spiritual sphere will not be affected by the
recognition of same-sex unions by the law.87
Subsequent to the Fourie judgment, Parliament passed the Civil Union Act.88 This Act recognises
same-sex unions which can now be described as marriages. In the view of Parliament, having an
alternative such as a civil union for same-sex couples would amount to segregation and would continue to
reinforce negative stereotypes. Hence, Parliament made the decision that parties could refer to these
unions as marriages should they choose to do so. However, the Civil Union Act also allows religious
denominations to opt out of solemnising same-sex marriages. The Act allows such religious denominations
to adhere to their particular views on the nature of marriage while accommodating the need to respect the
right to equality of gay men and lesbians.

13.3.2 The scope and content of section 15(1) of the Constitution

It is far from clear what the Constitutional Court’s understanding is of the exact scope and content of the right to freedom of
religion protected in section 15(1). This is because a divided Constitutional Court differed sharply on the scope and content of the
right when it first had to decide on its meaning in the case of S v Lawrence; S v Negal; S v Solberg.89
The starting point for understanding the scope and content of the right to freedom of religion – agreed on by all the judges of
the Constitutional Court – is that our Constitution does not require a strict separation between the state and religious bodies. 90
This approach differs markedly from that required by the United States (US) Constitution. The US Constitution prohibits the state
from setting up a church or passing laws which aid one religion, aid all religions or prefer one religion over another. In the US it
is assumed that the US constitutional clause against the establishment of a religion by law was intended to erect ‘a wall of
separation between church and State’.91 As Chaskalson J explained in the Lawrence case, the right to freedom of religion in the
South African Constitution – unlike the US – does not include an ‘establishment clause’. 92 The US view that a wall of separation
should be erected between religion and the state is not applicable here. 93 To read such a requirement into section 15:

would have far reaching implications beyond the apparent scope and purpose of section 14 [now 15]. If
such obligations on the part of the state are to be read into section 14 [now section 15] does this mean
that Christmas Day and Easter Friday can no longer be public holidays, that ‘Family Day’ is suspect

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 because it falls on Easter Monday, that the SABC as public broadcaster cannot broadcast church
services (as it does regularly on Sunday mornings, though it does not regularly broadcast Muslim
services on Fridays or Jewish services on Saturdays or Hindu services on any particular day of the
week), that its daily religious programmes must be cancelled, and that state subsidies to
denominational schools are prohibited? These examples can be multiplied by reference to the
extremely complex United States law which has developed around the ‘establishment clause’.94

The reason for the rejection of the US view can be found in section 15(2) of the Constitution (discussed below) which allows for
religious observances to be conducted at state or state-aided institutions. This means that in the South African context, the right to
freedom of religion will not automatically be infringed every time the state provides any benefit to a specific religion or all
religions in relation to non-religious groups. The state is thus allowed to provide specific benefits to a religious institution and to
engage in activities that demonstrate reverence or respect for religion in general.
It is within this broader context that the scope and content of the South African guarantee of freedom of religion must be
understood. Drawing on the jurisprudence of the Canadian Supreme Court, all the judges of the Constitutional Court also agreed
that the essence of the right to freedom of religion involves: 95
• ‘the right to entertain such religious beliefs as a person chooses’: In other words, people have the right to choose their
religious beliefs freely and openly. Thus, an individual must be free from direct or indirect pressure by the state or other
sources when choosing religious beliefs. Religious organisations cannot prevent people from leaving their fold and
converting to other religions. Preferring persons of a particular religion when employing for state positions could amount to
both unfair discrimination on the basis of religion and an infringement of the right to freedom of religion.
• ‘the right to declare religious beliefs openly and without fear of hindrance or reprisal’: In other words, people have the
freedom to express their beliefs in public. People should never be compelled to worship in private and the right to do so in
public is an acknowledgment that the broader society recognises and endorses this right. In a democracy such as ours that
celebrates diversity, worshippers should be able to manifest their religious beliefs and practices publically.
• ‘the right to manifest religious belief by worship and practice by teaching and dissemination’: In other words, people have
the freedom to engage in all the practices associated with their religion. For example, members of the Muslim and Jewish
faiths believe in the circumcision of baby boys as part of practising their religion. Moreover, some Hindus walk on a bed of
burning coal as a form of penance and in worship of the goddess Draupathi who they believe had to walk on burning coal to
prove her fidelity. Although minorities engage in these practices, they are protected as they are an important part of the
manifestation of their religious beliefs. This is despite the majority disapproving or even questioning the rationality of the
practice.

In short, all the justices of the Constitutional Court agreed that the right to freedom of religion is protected if there is an ‘absence
of coercion or constraint’ on a particular religious belief or practice. 96 Freedom of religion will ‘be impaired by measures that
force people to act or refrain from acting in a manner contrary to their religious [and, we assume, other non-religious] beliefs’. 97
Subsequent Constitutional Court judgments essentially endorsed this view of the scope of the right to freedom of religion. 98 The
Court also noted that the right to freedom of religion would not only be infringed by acts of direct coercion. Actions by the state
could also run the risk of indirectly coercing individuals into certain religious beliefs and practices. This was a particular danger
when the power, prestige and financial support of government were placed behind a particular religious belief as it would place
indirect coercive pressure on religious minorities to conform to the prevailing officially approved religion. 99
A far more difficult question that arose in the Lawrence case was whether the state was required to treat all religions in a fair
and equitable manner. It is on this issue that the judges of the Constitutional Court differed. Chaskalson J, writing for four
justices of the Constitutional Court, rejected the notion that the right to freedom of religion required the state to act in an
even-handed or equitable manner towards all religions.100 O’Regan J, writing for three justices of the Constitutional Court,
however, argued that the right to freedom of religion required more than the absence of direct or indirect coercion to be fully and
effectively protected.101 This additional requirement of fairness or equity, argued O’Regan J, reflected ‘an important component
of the conception of freedom of religion contained in our Constitution’. 102 She stated:

Our society possesses a rich and diverse range of religions. Although the state is permitted to allow
religious observances, it is not permitted to act inequitably. In determining what is meant by inequity
in this context, it must be remembered that the question of voluntary participation is a consideration
separately identified in section 14(2) [now section 15(2)]. The requirement of equity must therefore be
something in addition to the requirement of voluntariness. It seems to me that, at the least, the
requirement of equity demands the state act even-handedly in relation to different religions.103

This did not mean complete neutrality but did require that observances should not favour one religion over another. 104 This

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 judgment went on to state that the purpose of the right was a rejection of past practices when Christianity was deemed to be the
favoured religion.105 Endorsement by the state of any one religion would not be permitted as it would result in indirect coercion
and would amount to a threat to those wishing to exercise other religious beliefs. 106 O’Regan J concluded by holding that it is
not sufficient that there is no direct coercion of religious beliefs. In addition, there had to be no inequitable or unfair preference of
one religion over others.107
In a separate judgment, Sachs J appeared to agree with the approach adopted by O’Regan J when he held that the right to
religious freedom does not only prohibit the state from forcing people to act or refrain from acting in a manner contrary to their
religious beliefs, but also from endorsing or favouring one particular faith, for example Christianity, over all others:

By endorsing a particular faith as a direct and sectarian source of values for legislation binding on the
whole nation, [the State] exceeds the competence granted to it by the Constitution. Even if there is no
compulsory requirement to observe or not to observe a particular religious practice, the effect is to
divide the nation into insiders who belong, and outsiders who are tolerated. This is impermissible in
the multi-faith, heterodox society contemplated by our Constitution.108

The difference between these positions is important and could lead to different results in a particular case. Insisting on the
requirement of equity would require the state to act in a more even-handed manner regarding the various religions. For example,
the state officially recognises certain Christian religious holidays, such as Easter and Christmas for example, but refrains from
officially recognising religious holidays of other religions. It could be argued that the state is not treating the various religions in
an equitable manner as it is endorsing or favouring the Christian religion over other religions and over non-religion.

PAUSE FOR REFLECTION

Defining the right to freedom of religion

In Lawrence, the applicants, who were supermarket owners, sought to challenge certain sections of the
Liquor Act 109 which prohibited the sale of alcohol on closed days. These days were defined as Sundays,
Good Friday and Christmas. They argued that the prohibition on the sale of alcohol on the closed days
infringed the religious beliefs of non-Christians by forcing them to observe Christian beliefs.
Chaskalson P, writing for himself and three other justices, and applying the more restrictive definition of
the right to freedom of religion discussed above, held that a Sunday had become a day of rest for most
South Africans and was not solely a Christian holiday.110 He held that the supermarket owners were able
to ply their trade on Sundays and were only prohibited from selling wine.111 Chaskalson P held that the
applicants did not satisfy the court that this limited restriction amounted to a violation of the right to freedom
of religion because the impugned law did not, in fact, coerce anyone into observing or not observing a
particular religious belief or practice.112
In Chaskalson P’s opinion, the right to freedom of religion cannot be read as obliging the state to
abstain from any action that may advance or inhibit religion.113 However, he went on to hold that in some
circumstances, the advancement or endorsement of a particular religion would have the effect of coercing a
person, either directly or indirectly, to observe or abide by the practices of that religion.114 If such coercion
is established, it would amount to an infringement of the right to freedom of religion.115 This judgment
found that on the facts there was too tenuous a connection between restrictions on the sale of wines on
Sundays and the Christian religion for this to be deemed to be advancing Christianity and thus coercive as
far as non-Christians were concerned. Hence, he came to the conclusion that the right to freedom of
religion was not infringed.116
As we have noted, O’Regan J framed the scope and content of the right to freedom of religion more
broadly.117 While acknowledging that the Constitution does not require a strict separation between the
state and religious institutions, this judgment held that apart from being non-coercive, legislation may not
favour one religion over others. This is because fairness and even-handedness in relation to diverse
religions is a necessary component of the right to freedom of religion. Applying these principles to the facts,
O’Regan J found that the prohibition on the sale of wine on days that are important to Christians endorsed
Christianity and thus infringed the right to freedom of religion. In addition, O’Regan J found that this
infringement was not justifiable. The Liquor Act, therefore, was unconstitutional and invalid.

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 In his separate judgment, Sachs J also found that the Liquor Act infringed the right to freedom of
religion because it clearly endorsed Christianity. Unlike O’Regan J, however, he went on to find that this
infringement was justifiable and, consequently, that the Liquor Act was constitutionally valid.118 Sachs J,
therefore, agreed with the order issued by Chaskalson P.

Apart from the points set out above, it is also important to note that religious activities often take place in a communal context. In
recognition of this fact, section 31 of the Constitution adds to the scope and content of the right to freedom of religion. Section 31
of the Constitution deals with the right of religious communities to practise their religion together with other members of their
community. The right can only be optimally exercised if people of similar beliefs or faiths can assemble, jointly express their
beliefs, advance their religion and regulate their affairs. The right to religious freedom, therefore, also includes the right to
interact with fellow believers to advance their religion and to regulate the religious affairs of their organisations. This means an
individual religious denomination must have the right – to the extent that other rights do not limit this right – to decide for itself
on the rules for membership as well as the rules about the behaviour of all members of the religious denomination. A fuller
discussion of the association rights contained in section 31 follows later in the chapter.
In the context of section 15, it is unnecessary to focus on whether a specific belief is religious in nature or not as the section
not only protects the right to freedom of religion, but also to the right to freedom of conscience, thought, belief and opinion.
Nevertheless, it has been suggested that to qualify as a ‘religious belief system’ a religion should have some of the following
features: ‘belief in a supreme being, belief in transcendent reality, a moral code, a world view accounting for people’s role in the
universe, sacred rituals, worship and prayers, a sacred text, and membership in a social organisation’. 119
In the US context, it was held that the test should not be whether the belief is objectively reasonable, but rather whether it
forms part of the practices and beliefs of that religion and whether persons belonging to that religion genuinely and sincerely
embrace the practice. The courts are generally reluctant to question the genuineness of the belief if there is evidence to suggest
that the belief is sincerely held by the applicant. In addition, the courts are generally reluctant to make determinations as to
whether the practice being restricted is central or foundational to the religious beliefs. It is not the function of the court to
interpret religious texts or dogma. As O’Connor J, a former justice of the US Supreme Court, put it:

The dissent offers us the prospect of this court holding that some sincerely held religious beliefs and
practices are not ‘central’ to certain religions, despite the protestations to the contrary from religious
observers who brought the lawsuit. In other words, the dissent’s approach would require us to rule
that some religious adherents misunderstand their own religious beliefs. We think that such an
approach cannot be squared with the Constitution or with our precedents, and that it would cast the
judiciary in a role that we never intended to play.120

Ngcobo J expressed similar sentiments in his dissenting judgment in Prince v President of the Law Society of the Cape of Good
Hope.121 In this case, the issue was whether the Drugs and Drug Trafficking Act 122 and section 22A of the Medicines and
Related Substances Control Act 123 were inconsistent with the Constitution in that they did not grant an exemption to
Rastafarians to possess and use dagga for religious purposes. Ngcobo J cautioned against being overly concerned with whether a
particular practice is central to the religion, stating that:

Apart from this, as a general matter, the Court should not be concerned with questions whether, as a
matter of religious doctrine, a particular practice is central to the religion. Religion is a matter of faith
and belief. The beliefs that believers hold sacred and thus central to their religious faith may strike
non-believers as bizarre, illogical or irrational. Human beings may freely believe in what they cannot
prove. Yet, that their beliefs are bizarre, illogical or irrational to others or are incapable of scientific
proof, does not detract from the fact that these are religious beliefs for the purposes of enjoying the
protection guaranteed by the right to freedom of religion. The believers should not be put to the proof
of their beliefs or faith. For this reason, it is undesirable for courts to enter into the debate whether a
particular practice is central to a religion unless there is a genuine dispute as to the centrality of the
practice.124

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 PAUSE FOR REFLECTION

Determining whether a specific belief is religious or not

The fact that it is very difficult to determine whether a specific belief is religious or not is clearly illustrated by
the example set out below.

A ‘church’ whose central tenet is the right to file-share has been formally recognised by the
Swedish government.

The Church of Kopimism claims that ‘kopyacting’ – sharing information through copying – is
akin to a religious service.

The ‘spiritual leader’ of the church said recognition was a ‘large step’. But others were less
enthusiastic and said the church would do little to halt the global crackdown on piracy.

The Swedish government agency Kammarkollegiet finally registered the Church of Kopimism as
a religious organisation shortly before Christmas, the group said.

‘We had to apply three times,’ said Gustav Nipe, chairman of the organisation.

The church, which holds CTRL+C and CTRL+V (shortcuts for copy and paste) as sacred
symbols, does not directly promote illegal file sharing, focusing instead on the open distribution
of knowledge to all.

It was founded by 19-year-old philosophy student and leader Isak Gerson. He hopes that
file-sharing will now be given religious protection.

‘For the Church of Kopimism, information is holy and copying is a sacrament. Information holds
a value, in itself and in what it contains and the value multiplies through copying. Therefore
copying is central for the organisation and its members,’ he said in a statement.

‘Being recognised by the state of Sweden is a large step for all of Kopimi. Hopefully this is one
step towards the day when we can live out our faith without fear of persecution,’ he added’. 125

In most constitutional democracies, issues concerning the right to freedom of religion arise when legislation is passed or other
governmental action undertaken which aims to achieve a societal objective, but which simultaneously is perceived as adversely
affecting religious beliefs. Superficially neutral laws may sometimes adversely affect the religious rights of individuals. Thus, the
aspect of the right that enables believers to give expression to and manifest their beliefs in public and to engage in practices
associated with the religious beliefs of an individual is the component most likely to be affected by state regulation. In addition to
clashes with state objectives, the exercise of the freedom of religion may clash with the constitutional rights of others, including
the right not to be unfairly discriminated against. The courts generally attempt to balance the competing imperatives. 126
However, difficult issues arise when the right to freedom of religion collides with the right not to be unfairly discriminated
against on the basis of, for example, gender and sexual orientation.
This question arose in the case of Strydom v Nederduitse Gereformeerde Gemeente Moreleta Park.127 The Moreleta Park
Dutch Reformed Church appointed a music teacher, Mr Strydom, to teach music to the learners who participated in the arts
academy it had established. When the church discovered that Strydom was in a same-sex relationship, it dismissed him from his
job. Strydom took the case to the equality courts established under the PEPUDA. The church argued that its right to freedom of
religion should trump the right of Mr Strydom to non-discrimination on the basis of sexual orientation. The Court found that
unfair discrimination had indeed taken place on grounds of sexual orientation. As Bilchitz explains:

On the facts, the Court found that Strydom’s work ‘involved no religious responsibilities at all’ and
that he had performed excellently in his job until then. Strydom was not a member of the church and
he was teaching as an independent contractor. As such, he did not hold himself out to be a role model
to the students in their religious lives. Consequently, Basson J found that the impact on the church’s
freedom of religion of keeping Strydom in employment was ‘minimal’. On the other hand, there was
an enormous impact on Strydom’s right to equality and dignity. Strydom was also affected in a
material way, suffering from depression, unemployment and being forced to sell his piano and house.
Consequently, the church did not succeed in discharging its onus of proving that the discrimination

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 was not unfair. The case thus demonstrates clearly that the protections against unfair discrimination in
the Constitution and the Equality Act may restrict the autonomy of a religious association to refuse to
employ or dismiss individuals whom it deems unsuitable if such a decision is based on grounds upon
which discrimination is prohibited.128

CRITICAL THINKING

Where to draw the line between a church’s core activities and its other activities
In terms of the doctrines of the Catholic Church only men can be ordained as priests. The prohibition on
women priests clearly discriminates against women on the basis of sex and gender. Equally, however, the
right of the church to arrange its affairs in accordance with its own beliefs and doctrines requires it to be
able to discriminate against women.
If a specific woman ever wished to challenge the practice of the Catholic Church in South Africa, she
may want to invoke the precedent created by the High Court in the Strydom judgment. However, a court
would almost certainly distinguish such a case from the Strydom case. It would probably argue that the right
to freedom of religion in this particular case should trump the right of women not to be discriminated
against. This is because in Strydom the church employed the music teacher as an independent contractor.
The task of teaching music was far removed from the core functions of the church.
Assume, however, that Strydom had not been a music teacher but a dominee and that the Dutch
Reformed Church had adopted policies which precluded a gay man or lesbian from becoming dominees.
Then the Court would almost certainly have found that the freedom of religion of the church and those who
belonged to it should trump the rights of the individual dominee. Similarly, in a case where a women
challenges the male-only rule for the ordination of priests in the Catholic Church, the courts would almost
certainly find in favour of the Catholic Church.
As these examples demonstrate, the line between activities so closely associated with the core
doctrines of a church and its other activities may not always be easy to draw in an individual case. This
suggests that courts may find it difficult to know how to deal with the accommodation of diversity in a
particular case.

13.3.3 The reasonable accommodation of religious beliefs and practices

Issues of religious freedom often arise in contexts where seemingly neutral and universal rules that reflect a particular religious
orientation or belief system are applied in a manner that may have the effect of marginalising or negating the beliefs and practices
of people from minority religions or people who do not embrace any form of religion at all. For example, where a school imposes
a particular dress code or a particular disciplinary code that applies equally to everyone, the code may nevertheless fail to
accommodate the practices of minority beliefs and religions. Thus, a school dress code which prohibits all girls from wearing
scarves or hats may discriminate against Muslim learners and may thus infringe on the religious freedom of such learners.
Similarly, a disciplinary code which requires all boys in a school to wear their hair in a short style may discriminate against
Rastafarian learners who are required to wear dreadlocks. In such cases, the right to freedom of religion and the right not to be
unfairly discriminated against on the basis of a person’s belief or religion intersect. The manner in which the law deals with such
cases is to require the institution reasonably to accommodate the beliefs and practices of all, regardless of their beliefs or religious
affiliations.
At its core, reasonable accommodation is the notion that sometimes the community, whether it is the state, an employer or a
school, must take positive measures and possibly incur additional hardship or expense to allow all people to participate and enjoy
all their rights – including the right to freedom of belief – equally. It ensures that we do not relegate people to the margins of
society because they do not or cannot conform to certain social norms. 129 In Christian Education, in the context of
accommodating religious belief in society, a unanimous Court identified the underlying motivation of the concept as follows:

The underlying problem in any open and democratic society based on human dignity, equality and
freedom in which conscientious and religious freedom has to be regarded with appropriate seriousness,
is how far such democracy can and must go in allowing members of religious communities to define for
themselves which laws they will obey and which not. Such a society can cohere only if all its
participants accept that certain basic norms and standards are binding. Accordingly, believers cannot

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 claim an automatic right to be exempted by their beliefs from the laws of the land. At the same time,
the State should, wherever reasonably possible, seek to avoid putting believers to extremely painful
and intensely burdensome choices of either being true to their faith or else respectful of the law.130

The notion of reasonable accommodation has arisen directly only in cases such as Pillay, in which the litigant alleged that he or
she was being discriminated against on the basis of his or her religion. However, the notion of reasonable accommodation also
finds application indirectly in cases where the freedom of religion of a litigant has been infringed and the court has had to decide
whether this infringement was justifiable in terms of the limitation clause (discussed in chapter 10). Because the outcome of most
freedom of religion cases turns on the application of the limitation clause, it is important to note how the notion of reasonable
accommodation indirectly affects the application of the limitation analysis in freedom of religion cases. This notion can be
illustrated by two cases in which the Constitutional Court found (or assumed) that a breach of section 15 had occurred. The Court
then had to decide whether the limitation was justifiable or not in terms of the limitation clause. The Court did not directly invoke
the concept of reasonable accommodation in either of these cases. However, we contend that the cases turned on whether the law
reasonably accommodated the religious beliefs and practices of the relevant group and hence whether the limitation of the
group’s religious freedom was, in fact, justifiable.
In Christian Education, the applicants challenged section 10 of the South African Schools Act (SASA) 131 which prohibited
corporal punishment in all schools, including independent parochial schools.132 The applicants were an umbrella body of 196
independent Christian schools. The schools were originally established to promote evangelical Christian education. The
applicants argued that section 10 was unconstitutional as it infringed their rights to freedom of religion and to cultural life. They
referred to various verses in the Christian Bible which countenance and, in some instances, prescribe corporal punishment as an
appropriate means of disciplining children. For instance, Proverbs 22:15 provides: ‘Foolishness is bound in the heart of a child,
but the rod of correction shall drive it far from him .’ Proverbs 23:13 and 14 provide: ‘Do not withhold discipline from a child, if
you punish with a rod he will not die. Punish him with a rod and save his soul from death.’ The applicants contended that
corporal punishment was therefore a vital aspect of the Christian religion. They argued that by prohibiting its use when parents
had consented to it, the state was unjustifiably interfering with their freedom of religion.
The Constitutional Court had no doubt that the parents sincerely believed that their religious rights were being infringed by
the law.133 The Court held that freedom of religion may be ‘impaired by measures that coerce persons into acting or refraining
from acting in a manner contrary to their beliefs’. 134 The Court went further and recognised that religious practices involve
interaction with fellow believers and thus section 31 of the Constitution makes provision for the practice of religion in community
with others.135 The Court ‘assumed without deciding’ that section 10 of the SASA limited the parents’ religious rights under
sections 15 and 31 of the Constitution.136 Having made these assumptions, the Court turned to the issue of whether it was
reasonable and justifiable in an open and democratic society for the state to limit these rights in terms of section 36 of the
Constitution.
The key question in this case, therefore, was whether the failure of the law to accommodate the applicants’ religious beliefs
by means of an appropriate exemption was reasonable and justifiable. The main purpose of the SASA was to create uniform
norms and standards for all schools. The main objective of section 10 of SASA was to reduce the level of violence in our schools
and to protect children from maltreatment, abuse or degradation. The blanket ban on corporal punishment was meant to convey a
principled stance affirming the dignity of learners. Granting an exemption to the applicant would detract from this and would be
difficult to administer. The infringement, according to the Court, did not oblige parents to make ‘an absolute and strenuous choice
between obeying the law of the land or following their conscience’. 137 Except for not being able to authorise educators to
administer corporal punishment, the schools were not prevented from fully exercising their religious beliefs. Thus, the law was
achieving an important objective while the intrusion on the religious rights of the applicants was limited. 138
The Court concluded that making an exception would detract from the symbolic, moral and pedagogical purpose of reducing
the level of violence in schools.139 In the circumstances, the Court concluded that the law was reasonable and justifiable and
hence not unconstitutional.140 In this case, the limited infraction of the freedom of religion was outweighed by the important
objectives that the law was designed to achieve. The flexibility of the limitation clause enables the courts to engage in these
balancing exercises.
In Prince, the Law Society formed the view that the applicant was not a fit and proper person and refused to register his
articles as a candidate attorney. The Society reached this conclusion because the applicant had two previous convictions for the
possession of dagga. The applicant had also indicated that he intended to continue using dagga as part of his religious practices.
The Constitutional Court held that Rastafarianism is a religion although it does not have a centralised organisational
structure.141 The use of dagga is one of the ways in which believers of this religion manifest their belief. 142 Thus, the statutory
limitation on the use of dagga is an infringement of the applicant’s right to freedom of religion. 143 However, the Court was
sharply divided on whether the law, which made an exception only for the medical use of the drug, was justifiable in terms of the
limitation clause. The majority upheld the law and found against the applicant on the basis that it would not be administratively

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 feasible to make a religious exception for the users of dagga as it would be difficult to police and oversee. 144 According to the
majority, it would be difficult to police a private activity of this nature in the absence of a formally organised religious structure,
stating that:

There is no objective way in which a law enforcement official could distinguish between the use of
cannabis for religious purposes and the use of cannabis for recreation. It would be even more difficult,
if not impossible, to distinguish objectively between the possession of cannabis for the one or the other
of the above purposes. Nor is there any objective way in which a law enforcement official could
determine whether a person found in possession of cannabis, who says that it is possessed for religious
purposes, is genuine or not. Indeed, in the absence of a carefully controlled chain of permitted supply,
it is difficult to imagine how the island of legitimate acquisition and use by Rastafari for the purpose of
practising their religion could be distinguished from the surrounding ocean of illicit trafficking and
use.145

The minority were of the view that the statute was overbroad and not carefully tailored to ‘constitute a minimal intrusion upon the
right to freedom of religion’.146 The law, according to the minority, was unconstitutional as it did not allow for the religious use
of cannabis that was not necessarily harmful and which could be controlled more effectively. 147
The inherent flexibility of the limitation clause allows the courts to assess whether the law that infringes aspects of the right
to freedom of religion is proportionate. As the Prince case demonstrates, even the judges of the highest court may differ in their
determination of what is reasonable in the circumstances. In essence, the state must identify a societal objective which the
governmental action advances, the attainment of which justifies the right being infringed. The courts then ask the additional
question of whether the societal objective could reasonably be achieved by a less intrusive limitation of the right. The
governmental conduct limiting the right will only pass constitutional muster if the courts are satisfied that the importance of the
societal objective sought to be achieved outweighs the adverse effects of the limitation on the right to freedom of religion.
Ultimately, both the prohibition on corporal punishment and the prohibition on the use of dagga except for medicinal reasons
were upheld even though both measures infringed aspects of the right to freedom of religion.

PAUSE FOR REFLECTION

An example of reasonable accommodation

The requirement that various religious beliefs and practices have to be accommodated in a reasonable
manner can be illustrated with reference to a specific example. Imagine that Claremont High School in
Cape Town has been besieged by ill-discipline and in some instances learners have attacked educators.
Imagine further that in a specific incident a grade 12 learner stabbed an educator who had reprimanded the
learner for being drunk at a sports event hosted by the school.
Now, it would not be surprising if the school, in an effort to improve the teaching and learning
environment, adopted a code of conduct after consultation with the learners, the parents and educators.
Such a code could, among others, expressly forbid learners from bringing to school knives, daggers or
other weapons or instruments that could cause harm to the learner, other learners or staff at the school.
On the face of it, such a rule would seem to be eminently reasonable. However, the rule would have a
disproportionate impact on Sikh learners. This is because according to the Reht Maryada, the official Sikh
Code of Conduct, a Sikh must at all times carry five items, including a kirpan, on his person. According to
this code, a kirpan is a dagger that represents the power of truth to cut through untruth. A Sikh learner
would therefore be able to argue that the seemingly neutral code of conduct infringed on his right to
freedom of religion, read with his right not to be discriminated against on the basis of his religion, because it
would prohibit him from wearing the kirpan to school. In deciding whether the code should make an
exception for Sikh learners, the court would have to employ the principle of reasonable accommodation.148

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 13.3.4 The right not to believe in any God
As we noted above, section 15 of the Constitution protects both the right to freedom of religion and the right to freedom of other
beliefs and conscience. As such, it also protects a person’s right not to believe in a God and not to have to participate in any
religious practices such as prayers and the singing of hymns. In Torcaso v Watkins,149 the US Supreme Court invalidated a state
law which required all public office holders to declare that they believed in God prior to assuming public office. The Court held
that the free exercise clause prevented government from either awarding benefits or imposing burdens based on a person’s
religious beliefs or lack of religious belief.150 Our courts have held that this free exercise in the US Constitution is similar to the
right to freedom of religion and conscience protected by section 15 of the South African Constitution. Similar sentiments were
expressed by Sachs J in Lawrence when he held:

South Africa is an open and democratic society with a non-sectarian state that guarantees freedom of
worship; is respectful of all and accommodatory towards, rather than hostile to or walled-off from,
religion; acknowledges the multi-faith and multi-belief nature of the country; does not favour one
religious creed or doctrinal truth above another; accepts the intensely personal nature of individual
conscience and affirms the intrinsically voluntary and non-coerced character of belief; respects the
rights of non-believers; and does not impose orthodoxies of thought or require conformity of conduct
in terms of a particular world-view.151

The breadth of section 15 signifies that our society must not act punitively towards non-believers by withholding benefits or
imposing burdens on them because of their non-belief. However, it is probable that if a non-believer is discriminated against, he
or she will rely on the right not to be unfairly discriminated against on the basis of conscience and belief rather than the right to
freedom of religion, belief and conscience.

13.3.5 Conducting religious observances at state institutions: section 15(2) of the

Constitution
As we noted above, the South African Constitution – unlike its US counterpart – does not require a complete separation between
the state and religion. The South African Constitution does allow some entanglement between the state and religion.
Section 15(2) of the Constitution makes this clear when it states that religious observances may be conducted at state or
state-aided institutions on condition that:
• these observances follow rules made by appropriate public authorities
• they are conducted on an equitable basis
• attendance at these observances is free and voluntary.

Religious observance must be distinguished from religious education.152 Religious observance refers to the acts or rituals of a
religious character usually conducted at public events such as at school assemblies, at the opening of Parliament or at the start of
a soccer match. Religious education refers to education that occurs inside the classroom about the beliefs and teachings of
various religions. It is only religious observances that have to comply with the conditions listed in section 15(2) if the
observances are to be held at state or state-aided institutions. The primary purpose of this provision is to regulate equitably the
conducting of prayers at school. In Lawrence, the Constitutional Court held that equitable treatment does not require equal
treatment of all religious affiliations and beliefs in a public institution and held:

In the context of a school community and the pervasive peer pressure that is often present in such
communities, voluntary school prayers could also amount to the coercion of pupils to participate in the
prayers of the favoured religion. To guard against this, and at the same time to permit school prayers,
S14(2) [section 15(2) in the final Constitution] makes clear that there should be no coercion. It is in this
context that it requires the regulation of school prayers to be carried out on an equitable basis. I doubt
whether this means that a school must make provision for prayers for as many denominations as there
may be within the pupil body; rather it seems to me to require education authorities to allow schools to
offer prayers that may be most appropriate for a particular school, to have that decision taken in an
equitable manner applicable to all schools, and to oblige them to do so in a way which does not give rise
to indirect coercion of the ‘non-believer’.153

According to this judgment, a state or state-aided institution would not be required to provide for religious observance to be
conducted in a manner that would accommodate every single form of religion, as well as all forms of non-religion, in such an
institution. So, say 90% of the pupils at a school profess to be Christian, 9% profess to be Muslim and the other 1% profess other

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 religions or no religion at all. The school would then probably have to accommodate both Christian and Muslim observance in
proportion to the number of pupils adhering to these religions. However, the school would not have to provide for religious
observance for the remaining 1% of pupils as long as everyone is given a free choice to attend or not to attend such occasions
where religious observance is conducted. This is because the observance must be equitable. The requirement that the observance
must be equitable does not require absolutely equal treatment of all religious beliefs. Mureinik argues that equitable refers to the
observances being fair and just.154 Excusing learners from minority religious groups from attending prayers of the majority
religion may satisfy the requirement of being free and voluntary. However, it may not satisfy the requirement that it also be just
and equitable especially in cases where minority religions are adhered to by at least a sizable number of members of that
institution.155
It appears that this would require the schools to accommodate reasonably all those religions that have a sizeable number of
adherents among the learners. It would not be permissible to determine the religion of the majority of learners and accommodate
only that particular religion. Much more is required than merely giving expression to majoritarian sentiments. The overt
endorsement of a particular religion by a public school, given the age and impressionability of learners, will probably be unduly
coercive and a violation of the right to freedom of religion of those learners belonging to other religions.
State-aided institutions refer to those institutions, including educational institutions, which the state funds extensively and
regulates heavily.156 Thus, the Court in Wittmann v Deutscher Schulverein did not regard private or independent schools as
state-aided institutions for the purposes of section 15(2) even though they are recipients of state funding. 157 This must be correct.
It would be incongruent to permit institutions to set up their religion-based schools at their own expense in terms of section 29(3)
of the Constitution and then also to oblige them to conduct religious observances in an equitable, free and voluntary manner. The
purpose of section 29(3) is to enable religious organisations to set up parochial schools and propagate their religion. They thus
cannot be compelled to act in the manner required by section 15(2) of the Constitution. However, all public schools are bound by
section 15(2) and cannot have a preferred or favoured religion.

13.3.6 Legislation recognising religious and traditional marriages: section 15(3)(a)(i) of

the Constitution
In terms of the common law, marriage was defined as the union of one man and one woman to the exclusion of all others. This
common law definition applies to marriages concluded in terms of the Marriage Act. 158 Couples married under Muslim, Hindu
and customary law could not use the Marriage Act to conclude a valid marriage in terms of the common law. This means that the
state did not officially recognise, in the same manner as common law marriages solemnised in terms of the Marriage Act,
marriages of couples that were concluded in accordance with Muslim, Hindu or customary law and who did not also conclude a
marriage in terms of the Marriage Act. This obviously constituted a form of discrimination on the basis of religion or custom. In
Ismail v Ismail,159 for example, the appellate division refused to recognise a Muslim marriage on the basis that it was potentially
polygamous. Thus any claim based on the polygamous union was also regarded as void and unenforceable.
However, section 15(3)(a)(i) of the Constitution states that the guarantee of freedom of religion and the requirements for
equitable treatment of religions as far as observance in state and state-aided institutions is concerned ‘does not prevent legislation
recognising marriages concluded under any tradition, or a system of religious, personal or family law’. This subsection therefore
allows for legislation to be drafted which recognises marriages concluded under traditional or other religious systems such as
Hinduism and Islam. It permits legislative intervention to rid our law of some of the chauvinistic attitudes of the common law as
exemplified in the judgment in Ismail.
The wording of section 15(3)(a)(i) is curious.160 The premise on which section 15(3) is based is that laws recognising
traditional forms of marriage may infringe on the guarantee in section 15(1). It is difficult to see how the state recognition of
marriages recognised by religious, personal or family law would violate the religious rights of others in society. This is so
because a law recognising different forms of marriage will not coerce individuals who do not intend to conclude such marriages
to believe or not believe anything or to enter or not enter forms of marriage that conflict with their religious beliefs. The only
reasonable explanation is that the Christian definition of marriage of one man and one woman may be offended by laws
recognising polygamous marriages. However, it is unclear whether this section was necessary at all. This is illustrated by the case
of Fourie where it was contended that allowing the institution of marriage to be extended to include same-sex couples would
fundamentally infringe deeply held religious beliefs. However, the Constitutional Court held that the Constitution allowed an
accommodation of both the secular and the sacred:

The function of the Court is to recognise the sphere which each inhabits, not to force the one into the
sphere of the other. Provided there is no prejudice to the fundamental rights of any person or group,
the law will legitimately acknowledge a diversity of strongly-held opinions on matters of great public
controversy. I stress the qualification that there must be no prejudice to basic rights. Majoritarian
opinion can often be harsh to minorities that exist outside the mainstream. It is precisely the function

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 of the Constitution and the law to step in and counteract rather than reinforce unfair discrimination
against a minority. The test, whether majoritarian or minority positions are involved, must always be
whether the measure under scrutiny promotes or retards the achievement of human dignity, equality
and freedom.161

Given this requirement of coexistence, the Court found that recognising the rights of gay men and lesbians to marry did not mean
that religions that believed that marriage was the union of one man and one woman had to solemnise gay and lesbian marriages.
They could refuse to solemnise gay and lesbian marriages if doing so would run counter to their belief and creed. 162 However,
recognition by the state would not result in a violation of the right to freedom of religion of those religions that were opposed to
gay and lesbian marriages.163
It is important to note that any laws passed in terms of section 15(3) must be consistent with other provisions of the
Constitution. Thus, section 15(3) would not sanction a law which unfairly discriminates against women in the marital relationship
even if the law gave expression to a particular traditional or religious belief. The challenge facing Parliament when drafting laws
recognising marriages consecrated in terms of religious or traditional law is to interfere as little as possible with the tenets of the
religion concerned. In addition, these laws must also provide effective security and stability to the parties in a manner which
accords with the Constitution.
To give effect to traditional cultural beliefs, Parliament passed the Recognition of Customary Marriages Act (RCMA). 164
The RCMA represents ‘a belated but welcome and ambitious legislative effort to remedy the historical humiliation and exclusion
meted out to spouses in marriages which were entered into in accordance with the law and culture of the indigenous African
people of this country’.165 The RCMA was passed to deal specifically with customary law. It was inspired by the dignity and
equality rights as well as the normative value system of the Constitution. 166 Section 1 of the RCMA defines customary law as
‘customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the
cultures of those peoples’. The RCMA defines a customary marriage as ‘a marriage concluded in accordance with customary
law’.167
Insofar as customary marriages are concerned, it is important to note that most of the customary law systems that apply in
South Africa differentiate between men and women. This is because men may marry more than one woman while women may
not marry more than one man. Unfortunately, it is not clear whether this differentiation is constitutionally valid or not. 168 On the
one hand, it could be argued that polygamous marriages unfairly discriminate against women and that section 15(3), therefore,
should not authorise the recognition of such marriages. On the other hand, it could be argued that the RCMA prevents the most
egregious forms of discrimination against women, among others, by requiring the consent of the first wife before a husband may
conclude a subsequent polygynous marriage. In addition, section 6 of the RCMA also states that:

A wife in a customary marriage has, on the basis of equality with her husband and subject to the
matrimonial property system governing the marriage, full status and capacity, including the capacity
to acquire assets and to dispose of them, to enter into contracts and to litigate, in addition to any rights
and powers that she might have at customary law.

Section 7(6) goes on to provide that:

A husband in a customary marriage who wishes to enter into a further customary marriage with
another woman after the commencement of this Act must make an application to the court to approve
a written contract which will regulate the future matrimonial property system of his marriages.

PAUSE FOR REFLECTION

Do the customary principles and rules that govern polygamous marriages pass
constitutional muster?
The discussion on polygamous marriages illustrates that constitutional issues cannot always be solved with
reference to a single section of the Bill of Rights. When considering whether the principles and rules of
customary law that govern polygamous marriages are constitutionally valid, it would not be sufficient to
invoke section 15(3) to arrive at an answer. We would also have to refer to the right to equality guaranteed
in section 9 of the Constitution and would specifically have to engage with the Constitutional Court’s
jurisprudence around the meaning of section 9(3) to arrive at the correct constitutional answer to this
problem.
Given these complexities, it remains an open question whether the customary principles and rules that

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 govern polygamous marriages would pass constitutional muster. Despite the provisions of the RCMA which
go a long way towards protecting women in polygamous marriages, in most customary law systems women
are not allowed to enter such marriages. This raises serious questions about whether the customary law
principles and rules that govern customary marriages show proper respect for the equal dignity of women.
Given these serious questions was it correct for Parliament to pass a law recognising polygamous
marriages simply on the basis that a number of communities in South Africa engage in and endorse this
practice on the basis that it accords with their cultural or religious beliefs? Polygamy allows a man to take
multiple wives – does this unfairly discriminate against women?

13.4 The rights of cultural and religious communities

13.4.1 The individual nature of these rights and how other rights both qualify and
enhance them
Section 30 of the Constitution guarantees everyone the right to use the language and participate in the cultural life of their choice.
Section 31 guarantees every person belonging to a cultural, religious or linguistic community the right, together with other
members of that community, to enjoy their culture, practise their religion and use their language, and to form, join and maintain
cultural, religious and linguistic associations and other organs of civil society. Both these sections, however, provide explicitly
that these rights may not be exercised in a manner that is inconsistent with any of the other provisions of the Bill of Rights.
The rights guaranteed in sections 30 and 31 lie at the heart of the protection of diversity. As the Constitutional Court has
pointed out, these rights ‘underline the constitutional value of acknowledging diversity and pluralism in our society’.169 They
stem from the recognition that we are different in the sense that we do not all share the same language, religion or history and do
not embrace the same cultural practices and assumptions. As such, these rights acknowledge that South Africa is a diverse society
of many languages, cultures and religions and they affirm, embrace and celebrate this diversity.
The rights guaranteed in sections 30 and 31 of the Constitution are also enhanced by some of the other provisions of the Bill
of Rights. Section 9(3), for example, prohibits unfair discrimination on the basis of, among others, religion, culture and language
and section 15(1) provides that everyone has the right to freedom of religion. Section 29(2) provides that ‘[e]veryone has the right
to receive education in the official language or languages of their choice in public educational institutions where that education is
reasonably practicable’. Apart from these provisions, the rights guaranteed in sections 30 and 31 are also enhanced by section 6 of
the Constitution. Although it does not form a part of the Bill of Rights, section 6 requires the state proactively to advance the use
of official languages that were previously neglected and to treat various languages with ‘parity of esteem’. 170
Like the right to freedom of association, the rights guaranteed in sections 30 and 31 of the Constitution are not group rights.
Instead, they are primarily rights that belong to the individual. The Constitution does not protect the rights of groups at all. It
protects only the rights of individuals who may best exercise their rights in association with others. As Sachs J pointed out in
Christian Education:

The protection of diversity is not effected through giving legal personality to groups as such. It is
achieved indirectly through the double mechanism of positively enabling individuals to join with other
individuals of their community, and negatively enjoining the state not to deny them the rights
collectively to profess and practise their own religion (as well as enjoy their culture and use their
language).171

The rights guaranteed in sections 30 and 31, therefore, allow individuals to assert their rights to advance the objectives of
specific cultural, religious or linguistic organisations or institutions as well as their own rights as members of such bodies. 172
Despite their decidedly individual character, cultural, religious and linguistic rights are usually best exercised in association with
others and these rights are therefore sometimes described as associational individual rights. The hybrid scope of these rights
complicates their application. This is because the interests of individuals to associate with other individuals and to express their
identity as members of a cultural, religious or linguistic group may lead to restrictions on the rights of others to participate in the
life of that community. An individual’s interests protected by sections 30 and 31 may therefore clash with the interests of other
individuals who could be excluded from participating in communal life by the exercise of this right. 173
The challenge facing the drafters of the Constitution was to protect these rights in a manner that was consistent with a
non-racial democracy based on majority rule and which protects individual rights. This is exactly why the exercise of these rights

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 is explicitly made subject to the other rights protected in the Bill of Rights, including to the right not to be unfairly discriminated
against in section 9. An individual therefore cannot exercise his or her right to associate with other members of a linguistic or
cultural community in a manner that would unfairly discriminate against others.
Given that other rights could qualify and limit the rights guaranteed in sections 30 and 31 of the Constitution, they must be
interpreted and applied in conjunction with the other rights in the Bill of Rights. In addition, the rights guaranteed in sections 30
and 31 are also partly advanced in an indirect manner through the exercise of other rights. The right not to be unfairly
discriminated against on the basis of race, ethnic or social origin, colour, religion, belief, culture and language in section 9(3), for
example, indirectly advances these rights. Other examples include section 16(2) which deems hate speech based on race,
ethnicity, gender or religion to be unprotected speech and section 29(3) which protects the rights of everyone to establish and
maintain, at their own expense, independent institutions that do not discriminate on the basis of race, are registered with the state
and maintain appropriate standards.

13.4.2 The international protection of cultural liberties

The rights protected in sections 29(3), 30 and 31 are sometimes referred to as cultural liberties.174 The cultural liberties they are
seeking to protect are a vital part of human development. As a United Nations report stated:

Cultural liberty is a vital part of human development because being able to choose one’s identity – who
one is – without losing the respect of others or being excluded from other choices is important in
leading a full life. People want freedom to practice their religion openly, to speak their language, to
celebrate their ethnicity or religious heritage without fear or ridicule or punishment or diminished
opportunity. People want the freedom to participate in society without having to slip off their chosen
cultural moorings.175

Human beings are social creatures who derive satisfaction when interacting with people who share their values, aspirations and
concerns. Language, cultural and religious associations afford people the opportunity to engage in activities that are immensely
important to them. Society as a whole benefits from this, hence the constitutional protection of these activities.
A religious or cultural organisation that is established, funded and operated to promote a particular culture, religion or
language should be able to protect the financial and other investments of its members. If the law is to protect cultural liberties,
then it must provide the means for cultural, religious and linguistic organisations, in pursuit of constitutionally permissible goals,
to avoid capture.
At an international level, various treaties protect these cultural liberties:
• Article 22 of the International Covenant on Civil and Political Rights (ICCPR) 176 protects the right to freedom of
association with others.
• Article 10 of the African Charter on Human and People’s Rights 177 protects the right of every individual to free association,
provided he or she abides by the law.178
• Article 27 of the ICCPR protects the rights of ethnic, religious and linguistic minorities, in a community with other members
of their group, to enjoy their own culture, to profess and practise their own religion and to use their language.
• Article 2 of the Declaration of Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities 179
obliges states to protect the national or ethnic, cultural, religious and linguistic identity of minorities as well as their
existence. States are required to encourage conditions for the promotion of that identity. Article 2(2) entrenches the right of
people belonging to minorities to establish and maintain their own associations.

To safeguard further these cultural liberties and to provide institutional state support, section 185 of the Constitution provides for
the establishment of the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic
Communities (CRL Commission). The primary purpose of this Commission is to promote respect for the rights of cultural,
religious and linguistic communities. The CLR Commission is empowered to carry out a number of responsibilities including:
• conducting educational programmes to promote respect for and further the protection of cultural, religious and linguistic
rights
• monitoring, investigating and researching issues
• educating, lobbying, advising and facilitating the resolution of friction between cultural, religious and linguistic communities.
180

The CLR Commission, like other institutions protected in Chapter 9 of the Constitution, is independent and is accountable to the
National Assembly (NA). All organs of state are obliged to assist and protect all Chapter 9 institutions to ensure their
independence, impartiality, dignity and effectiveness. Finally, there is a constitutional obligation on these Chapter 9 institutions to
be impartial and to exercise their powers and perform their functions without fear, favour or prejudice. 181

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 13.4.3 An analysis of the scope and content of sections 30 and 31 of the Constitution
The Constitutional Court has described these rights as ‘associational individual rights, namely those rights which cannot be fully
or properly exercised by individuals otherwise than in association with others of like disposition’. 182 It is apparent that
sections 30 and 31 draw heavily from article 27 of the ICCPR. There are also some differences between the wording of the two
provisions. In Christian Education, the Constitutional Court made the following general observations about sections 30 and 31:
• Sections 30 and 31 do not refer to ‘minorities’ unlike article 27 of the ICCPR.
• Sections 30 and 31 effectively protect the rights of individuals to practise their religion, speak their language and enjoy their
culture with others in communities which they constitute.
• Individuals are best able to exercise these rights within the context of the community. Individual rights to make choices about
whether they want to associate with some and not others therefore lie at the heart of these rights.
• Most open and democratic societies are tolerant and accepting of cultural pluralism. These rights acknowledge the respect for
diversity and give greater content to the generic right to freedom of association. People can be who they are without the need
to conform to the practices and expectations of the majority. These rights permit the right to be different.
• These rights are protected through the double mechanism of enabling individuals to associate with others of their community
and by preventing the state from denying them the right collectively to exercise their cultural, religious and linguistic rights.
Thus, section 30 is positively phrased and gives everyone the right to use the language and participate in the cultural life of
their choice. In contrast, section 31 is phrased in the negative and provides that persons may not be denied the right with
other members of their community to enjoy their culture, practise their religion and use their language.
• The state provides institutional support in the form of the CLR Commission to assist in the better enjoyment of these rights.
• Given their numbers, majority communities often have more effective access to the political process. Minority communities
engaging in practices that the majority may regard as bizarre or unusual may not as easily have access to the legislative and
policy-making processes. The Constitution manifests its respect for diversity by having these various measures to protect the
cultural, religious and linguistic rights of communities.183

These cultural liberties are rights which individuals exercise most effectively in associations formed to advance their interests. It
is thus proper to afford people the protected space in which to give expression to their preferences, to prevent the state from
unreasonably interfering in their affairs, to provide institutional support to resolve disputes and to provide assistance to some
communities that lack capacity.
It is often easier to identify and verify a religious as opposed to a cultural practice or belief. Cultural practices evolve and
change, often in an incremental and imperceptible manner. While organised religious bodies usually regulate religious practices,
there is a lack of similar supervisory bodies that exercise oversight over the divergent cultural activities. Because of the
difficulties associated with objective verification, it is sometimes difficult to determine whether the asserted practice is a genuine
cultural activity that the law should protect. Culture is not static and can change. Moreover, different individuals who associate
with a specific cultural group or practice may have different views about what the exact nature of the cultural belief or practice
might be.
The Constitutional Court in Pillay provided some guidance as to what amounts to a cultural belief. The Court contrasted the
South African approach to the approach adopted by English courts. The English courts have offered a definition of what
constitutes an ‘ethnic group’,184 stating that such a group must have a long shared history and cultural tradition of their own. 185
Other relevant factors include common geographical origin, a common language, a common literature peculiar to the group and a
common religion different from that of neighbouring groups. Thus it is a combination of religion, language, geographical origin,
ethnicity and artistic traditions which determines the culture of a person. The Court in Pillay was of the view that this definition
was too restrictive and said a wider definition should be adopted. However, the Court pointed out that if too wide a meaning is
given to culture, ‘the category becomes so broad as to be rather useless for understanding differences among identity groups’. 186
As it was unnecessary to resolve the question of what exactly constitutes a protected cultural belief or practice in the context
of this case, the Court did not provide any workable definition for it. It merely found that the applicant in the case was part of the
South Indian Tamil cultural group which, in any event, fell within the narrow definition of culture. 187 A cultural practice is
enjoyed in association with others and therefore the factors suggested by the English courts provide a useful starting point to
assess any assertion of a cultural practice. It is apparent that the Constitutional Court was inclined to afford a significant measure
of latitude as to what would qualify as a cultural belief. A very wide interpretation could lead to personal predilections or
preference being elevated to cultural practices to claim constitutional protection.
It is also clearly undesirable for the courts to have to determine whether the practice is an appropriate manifestation of that
particular culture. The greater the number is of people who engage in the practice in the particular cultural community, the more
likely it is to be deemed a genuinely held cultural belief. If the belief or practice is highly contested in the cultural community
itself, the Court is more likely to require clearer proof from a person asserting the belief to demonstrate that it is a genuinely held
cultural belief.

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 As pointed out above, these religious, cultural and linguistic rights contain a so-called internal qualifier as the enjoyment of
these rights is made subject to the other rights protected in the Bill of Rights. In other words, unlike other rights in the Bill of
Rights, both section 30 and section 31 are qualified by the proviso that the rights may not be exercised in a manner inconsistent
with any provision of the Bill of Rights. This does not mean that other rights will always trump a section 30 or 31 right whenever
there is a clash between any of those other rights and sections 30 and 31, no matter how trivial the inconsistency. Often, issues of
inconsistency arise when an association refuses admission to an individual or where an individual who was a member of the
association is expelled or denied some of the benefits or privileges that he or she previously enjoyed. For example, a cultural
group may believe that it is wrong to be gay or lesbian. If the group now discovers that a member is secretly gay and expels that
member, they discriminate against him on the basis of sexual orientation which is prohibited by section 9(3) of the Constitution.
In such a case, given the importance afforded by the Constitutional Court to the right against non-discrimination and given the
harmful effect on gays and lesbians, the rights in sections 30 and 31 may have to give way to the right against unfair
discrimination.

PAUSE FOR REFLECTION

A clash between rights

The clash between the right to cultural association versus the right not to be unfairly discriminated against
is illustrated in the online news report set out below:

“Kleinfontein – There are no signs that say “Whites Only.” There are, though, men in military
fatigues who log the license plates of vehicles approved to enter Kleinfontein, a rural enclave
that is home to about 1 000 Afrikaner whites. And there is a bust of Hendrik Verwoerd, the former
South African leader who spearheaded white racist rule.

This exercise in separate, self-sufficient living near the South African capital, Pretoria, is more
than just a throwback to the apartheid era that ended with the country’s first all-race elections in
1994. In recent days, Kleinfontein and its campaign to be formally recognized as a township have
become a touchstone for fresh debate about law, freedom and the kind of “rainbow nation” that
South Africa is trying to be.

Kleinfontein, which is all private property, requires its residents to be Afrikaners, descendants of
settlers who arrived from Europe centuries ago and speak Dutch-based Afrikaans, the idiom of
South Africa’s former overseers. That brings accusations of racism in a nation whose population
of over 50 million is mostly black, but the community skirts race references in its manifesto.
Descendants of British settlers, for example, would not be welcome to live here.

The community is not organized “on the basis of race,” said Jan Groenewald, chairman of the
board of directors of Kleinfontein, which means “Little Fountain” in Afrikaans. Instead, he said,
the goal is to preserve a cultural bedrock that stretches back to the lore of the hardy Voortrekker
settlers.

The dig-in mindset at the austere settlement echoes that of its ancestors, who drew ox wagons
into a defensive circle, a tactic that helped them defeat a much bigger Zulu force at the Dec. 16,
1838 Battle of Blood River. The date has near-mystical import for staunch Afrikaners, though the
vast majority of whites accepted South Africa’s new, multi-racial order in 1994 as part of a
negotiated settlement.

“We are here to stay,” read Afrikaans-language signs outside modest brick-and-tile homes
linked by dirt roads in Kleinfontein.

Residents don’t pay taxes on municipal services because they don’t receive them. They draw
water from a spring and are building a sewage system. There is a cafe, a primary school and a
care centre for the elderly. Zebra, antelope and wildebeest roam in one part of the fenced,
721-hectare (1,780-acre) property. Residents buy many of their goods from outside the fence.

“If I was a racist, we wouldn’t speak to a black. We wouldn’t do business with them,” said
Annatjie Oncke, a 49-year-old house cleaner living in a caravan park. She and other poor
residents do the kind of menial labour reserved for blacks in the era when whites were in charge.
Kleinfontein also has engineers and other skilled workers, as well as retirees.

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 In the past, small bands of Afrikaners have sought to establish enclaves elsewhere in South
Africa, notably in the Northern Cape community of Orania, founded in 1990. Nelson Mandela,
South Africa’s first black president, travelled to Orania in 1995 and had coffee there with
Verwoerd’s widow in a show of racial reconciliation. Verwoerd was assassinated in 1966.

Kleinfontein has been around almost as long as Orania, but is now under scrutiny in part
because it wants local authorities to recognize it as an entity with the right to run its own affairs.
The Times, a South African newspaper, reported that provincial lawmakers were informed last
year that black police officers were barred from entering the enclave.

Last week, members of the Democratic Alliance, a political party, protested outside Kleinfontein.

“By creating a ‘whites-only’ area, this community is saying that it has no respect for people who
are different from them. It is saying that it fears people who are different,” said Mbali Ntuli, the
party’s youth leader.

On Wednesday, Kgosientso Ramokgopa, the mayor of Pretoria and surrounding areas, visited
Kleinfontein as part of an inquiry into its alleged failure to comply with municipal planning laws.
Delegations of the two sides met in a hall with a corrugated iron roof, a church bell mounted
outside in a scaffold.

Ramokgopa noted the right of every citizen to “reside in any part of the country,” while
Groenewald, Kleinfontein’s chairman, spoke of the right to “self-determination.”

The mood was diplomatic and jovial at times. Ramokgopa joked about “koeksusters,” a fried,
sugary snack favoured by his Afrikaner hosts. Groenewald referred to Mandela’s leadership, but
also hinted at his resolve with a mention of Koos de la Rey, a general in the 1899-1902
Anglo-Boer war who did not want conflict but fought hard when it began.

South Africa’s national flag does not fly in Kleinfontein, though some residents were seen
recently with the “Vierkleur” (“Four-color”), the flag of the Transvaal republic, which in the 19th
century formed part of what is now South Africa. A community member handed out a declaration
that complained of betrayal and persecution of the “Boer-Afrikaner nation,” and described South
African democracy as a sham.

“We find ourselves exiles in our own fatherland,” the statement said. “We experience this new
dispensation not as a democracy, but as the dictatorship of an alien majority.” 188

In Christian Education, the Constitutional Court held that section 31(2) was intended to ensure that practices offensive to the Bill
of Rights were not shielded by the protection afforded by section 31(1):

It should be observed, further, that special care has been taken expressly to acknowledge the
supremacy of the Constitution and the Bill of Rights. Section 31(2) ensures that the concept of rights of
members of communities that associate on the basis of language, culture and religion, cannot be used
to shield practices which offend the Bill of Rights. These explicit qualifications may be seen as serving a
double purpose. The first is to prevent protected associational rights of members of communities from
being used to ‘privatise’ constitutionally offensive group practices and thereby immunise them from
external legislative regulation or judicial control. This will be particularly important in relation to
practices previously associated with the abuse of the notion of pluralism to achieve exclusivity,
privilege and domination. The second relates to oppressive features of internal relationships primarily
within the communities concerned, where section 8, which regulates the horizontal application of the
Bill of Rights, might be specially relevant.189

Despite the provisos in sections 30 and 31, the associational rights are not presumptively inferior and of less weight than the
rights to equality, dignity and other rights.
A ‘constitutionally offensive group practice’ in this context means any exclusionary policies, rules or conduct adopted or
applied by a religious, linguistic or cultural organisation and which are not permitted by the Constitution. The issue is whether the
rules or conduct of the communities are consistent with the Constitution. In deciding whether these policies, rules or conduct are
permitted, regard must be had to whether the rule or conduct is reasonable and justifiable. This involves a balancing of the rights

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 of the individual being denied access against the purpose that the rule or conduct is seeking to achieve. In addition, an assessment
needs to be made as to whether the rule or conduct is proportionate. Thus, the rights of the organisation or community have to be
weighed and balanced against the infraction of the individual rights.
Clearly, the impact on the complainant is of central importance in this deliberation. The more egregious the violation is, the
less likely it is that it will be deemed fair. In Lovelace v Canada,190 the applicant challenged a Canadian federal statute, the
Indian Act 1970. This Act provided that a Canadian Indian woman who married a non-Indian could not be registered as an
Indian. Ms Lovelace married a non-Indian. As a consequence of the law, she was denied the right to return to her native home in
the Tobique Reservation in Canada. She argued that the law excluded her from living her life as an Indian. In addition, it
specifically resulted in her losing the cultural benefits of living in an Indian community and of having emotional ties to her home,
family, friends and neighbours. The United Nations Human Rights Committee upheld the complaint as the exclusion of Lovelace
from the tribe meant that she was not able to enjoy her cultural rights as an Indian. This drastic intrusion was not reasonable and
necessary to preserve the identity of the tribe.
Ms Lovelace simply had no other forum or association, other than the tribal area, within which to exercise and enjoy her
cultural rights. Her exclusion thus meant an eradication of her right to enjoy her culture. This was impermissible given the fact
that article 27 of the ICCPR protects the right to cultural associations. The cost that she had to bear was disproportionate and
excessive when compared to the potential benefit that would accrue to the tribe as a consequence of the law. Section 31 of the
Constitution is materially similar and it is likely that a similar outcome would have been reached through an application of the
limitation clause.
The manner in which the rights of the organisation or community must be weighed and balanced against the infraction of the
individual rights is also illustrated in the case of Taylor v Kurtstag NO and Others.191 The applicant and his wife had voluntarily
submitted to the jurisdiction of the ad hoc Beth Din (Jewish Ecclesiastical Tribunal) and requested that it arbitrate on the custody
of their children and on the maintenance to be paid. The applicant did not comply with the findings and was effectively
excommunicated. The applicant sought to set aside the edict of the Beth Din that effectively excommunicated him from Jewish
society for failing to comply with its decision. He argued that the edict 192 conflicted with his individual rights to religion and to
cultural association. The edict, according to the community, was the only means available to it to ensure compliance with the
rulings of the Beth Din.
The Court enquired into whether the limitation of the applicant’s rights could be justified by reference to the associational
rights of the community. The Court concluded that the limitation on the applicant’s rights was reasonable and justifiable as a
failure to enforce the Beth Din’s rulings would result in the Jewish faith not being able to protect the integrity of Jewish law. 193
The associational rights of the organisation took precedence over the personal rights of the individual. 194 In reaching its
conclusion, the Court assessed the full extent of the limitation on the rights of the applicant and weighed this against the
associational rights of the organisation.195 Malan J concluded:

At the core of this dispute is a matter of religious doctrine: in all religions there are rules entailing
consequences if the rules are broken. It does not follow that a contravention of the rules will invariably
lead to the conclusion that, because the member’s rights of dignity have been infringed, the
infringement is unconstitutional. Were this the position, it would be impossible for voluntary
organisations, particularly religious communities, to require conformity with particular values and to
impose sanctions for the contraventions.196

The Court went on to hold that the purpose of the edict was to punish, to maintain standards and to encourage the dissenter to
return by complying with the ruling.197 In the circumstances, the Court held that the community had not acted in a
constitutionally offensive manner and upheld the edict.198
As stated earlier, the courts have to balance the rights of the individual who has been shut out of the organisation or
community and the rights of the community or organisation to protect its identity. Where an individual asserts that his or her
constitutional right has been infringed by another private person or entity and that the other entity seeks to justify the limitation
by reference to his or her own rights, then sections 8(2) and (3) of the Constitution have application. Section 8(2)provides:

A provision of the Bill of Rights binds a natural or a 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.

Section 8(3) provides:

When applying a provision of the Bill of Rights to a natural or juristic person in terms of subsection
(2), a court –

( a) in order to give effect to a right in the Bill, must apply, or if necessary develop, the common law

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 to the extent that legislation does not give effect to that right; and
( b) may develop rules of the common law to limit the right, provided that the limitation is in
accordance with section 36(1).

In terms of sections 8(2) and 8(3), an individual can rely on a right in the Bill of Rights against another natural or juristic person.
Where both sides are asserting rights in support of their positions, the courts will use the limitation clause enquiry to determine
whether the limitation of the rights is reasonable and justifiable. The relationship between natural and juristic persons in so far as
it pertains to cultural, religious and linguistic relationships is most likely to be regulated by the common law or by customary law.
The directive contained in section 8(3) enables the courts to reshape and develop the common law by balancing the conflicting
rights.
In Lovelace v Canada, the law completely cut off the applicant from her community and she was not able to practise her
culture outside that community. The law which was designed to protect this community was disproportionate and excessive in the
sanction it visited on those who married persons outside the tribe. In contrast, in the case of Taylor v Kurstag, the Court was of
the view that the punishment was required to ensure that the edicts of the Beth Din were respected. In any event, the applicant
would be readmitted if he complied with the edict.
The possibility of readmission to the community if there was compliance with the edict distinguishes Taylor from Lovelace.
The choice facing Lovelace was stark and unpalatable. She had to choose between her marriage and her community. The law
should never require persons to make such painful choices. By way of contrast, the applicant in Taylor had to abide by the
decision of a process to which he had voluntarily subjected himself and he would have been readmitted to the community. Thus,
what was being asked of him was not particularly onerous and the community required compliance with rulings of its religious
tribunal. This resulted in the Court’s conclusion that the community in Taylor had acted reasonably and justifiably.
The Constitutional Court adopted a similar approach in Bhe and Others v Khayelitsha Magistrate and Others.199 In this
case, the Court had to consider inconsistencies between aspects of customary law and the right not to be unfairly discriminated
against on the basis of sex and birth. Ms Bhe and the deceased lived together and two children were born of the relationship. The
deceased applied for and obtained state housing. At the time, the Black Administration Act (BAA) 200 regulated intestate
succession of black people. The BAA read with the regulations provided that intestate succession had to be implemented in
accordance with customary law. Customary law provided that the eldest male who is related to the deceased qualified as heir
while women were not permitted to participate in intestate succession. This is referred to as the rule of primogeniture. When the
deceased died, his father, who resided in the Eastern Cape, was appointed sole heir. The father wanted to sell the house to defray
the funeral expenses. The effect of this was that the two minor children would have been rendered homeless. The applicants, on
behalf of the minor children, contended that the primogeniture rule violated their right to human dignity and equality.
The Court held that in the past, customary law was interpreted through the prism of the common law and its content was
ascertained from an analysis of the codes and from the views of experts. This resulted in it becoming stagnant and incapable of
development and growth.201 The Constitutional Court affirmed that customary law is now an integral part of our law. Courts
must now analyse and interpret customary law in accordance with the Constitution and make adjustments to bring its provisions
into line with the spirit, purport and objects of the Bill of Rights. 202
The Court assessed the primogeniture rule in context. It found that the heir succeeded not just to the assets, but also had to
take responsibility for the preservation and perpetuation of the family unit. As property was collectively owned, the family head
held it for the entire unit.203 However, circumstances had changed significantly and nuclear families have replaced extended
families as the principal family unit. Now the male heir would acquire the assets but not necessarily the responsibility to provide
support and maintenance as was required in the past.204 Thus, applying the rule in the context where the applicants lived in the
Western Cape and the heir to the estate resided in the Eastern Cape would not accord with the original objectives of the law. 205
The Court emphasised that customary law had to evolve and develop to keep pace with changed circumstances. 206 It found that
the exclusion of women from inheritance was a clear violation of section 9(3) of the Constitution. 207 It found further that this
exclusion violated the right to human dignity as it was premised on the belief that women are not fit to administer and own
property. As such, the limitation that the rule imposes on rights was not reasonable and justifiable in an open and democratic
society.208
The Court was of the view that the legislature was in the best position to intervene and safeguard the rights of those violated
by the primogeniture rule.209 However, in the interim and pending the promulgation of the remedial law, relief had to be
afforded to those whose rights were being violated by the rule. In this case, the victims were among the most vulnerable in the
society.210 As an interim measure, the Court held that the Intestate Succession Act 211 was also to apply to all intestate deceased
estates that were formerly governed by the BAA.212
The approach adopted by the Court was to test the primogeniture rule against constitutional rights. Having found that the rule
infringed various rights, the Court determined that the infringements were not reasonable and justifiable. This meant weighing the
rights that were infringed against the purpose or objective of the rule. In this case, the rule had had relevance and importance at a

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 time when the extended family system was the norm for African people. However, the rule had much less relevance in the current
situation. In effect, the rule was no longer achieving a laudable societal objective that justified the infringements of constitutional
rights. Customary rules, notwithstanding their antiquity, can now be tested against constitutional provisions and could be changed
if found to be inconsistent with the Constitution. The courts now have the power in terms of section 8(3) to effect these changes
to bring principles of the common law and customary law in line with the Constitution.
In Gumede (born Shange) v President of the Republic of South Africa and Others , the Constitutional Court also effected
changes to customary law to bring it into line with the Constitution. 213 The RCMA provides that customary marriages concluded
after the year 2000 are deemed to be in community of property. Marriages concluded before that date had to be regulated by
customary law. Mrs Gumede was married prior to 2000 and her husband instituted divorce proceedings. In terms of the
customary law, as codified by the KwaZulu Act on the Code of Zulu Law 214 and the Natal Code of Zulu Law,215 the husband
was deemed to the head of the family and the owner of all the property. The consequence of this was that in respect of a
customary law marriage concluded before 2000, a wife was not entitled to any of the matrimonial property on dissolution and was
subject to the marital power of the husband.
In Gumede, the Constitutional Court held that these provisions of customary law discriminated, among others, on the basis of
gender. These unequal proprietary consequences applied only to women in customary marriages concluded before 2000. 216 The
Court held that the presumption of unfair discrimination was not rebutted and there was no justification for this rule. 217 The
Court found that the section of the RCMA which distinguished between marriages concluded before 2000 and those concluded
after that date was also unconstitutional.218 The net effect was that all customary marriages are to be deemed to be in community
of property.
In both the Bhe and Gumede cases, customary law provisions were found to offend against the right not to be unfairly
discriminated against on the basis of gender. In both instances the Court materially changed the substance of the law to bring it
into line with the Constitution. It may be advisable for the custodians of customary law such as the House of Traditional Leaders
proactively to reappraise those aspects of customary law that may violate the Constitution and develop them in a way that accords
with the Constitution. In this way, they remain the main role players in the development of this area of the law. It will afford them
the opportunity to make customary law more relevant and more applicable to current circumstances. Failure to do so will leave
the courts with no alternative but to develop customary law as they did in these cases. It is also important to emphasise that the
Court did not simply make declarations of invalidity and leave it to the vagaries of the legislative and political process to fashion
a remedy. In both cases, the law was changed to provide effective relief to the successful applicants. Clearly, if the legislature is
not satisfied with the changes made by the Court to the law, it is at liberty to legislate differently provided it does so in a manner
that is consistent with the Constitution.

13.5 Language rights

13.5.1 Introduction
One of the factors that triggered the Soweto student uprisings in 1976 was the insistence by the education authorities that
Afrikaans and English be the dual mediums of instruction in black schools in the area. Prior to this decree, English was the sole
medium of instruction. At the time, English and Afrikaans were the only official languages. The apartheid government perceived
the implementation of Afrikaans as the medium of instruction in schools as a method of entrenching and extending its dominance.
The perception that the language of the oppressor was being imposed on black children fuelled the revolt against the apartheid
government.
The uprising occurred against the backdrop of the mistreatment of indigenous languages under apartheid. Such indigenous
languages, even though spoken by millions of people, were not afforded official recognition in South Africa in the pre-democratic
era. The message conveyed by this non-recognition was that these languages were less important than English and Afrikaans and
had a lower status than the two languages then officially recognised by the apartheid state.
To affirm the dignity of communities using the various languages and to signal a decisive break with past thinking in this
regard, section 6 of the Constitution recognises Sepedi, Sesotho, Setswana, siSwati, Tshivenda, Xitsonga, Afrikaans, English,
isiNdebele, isiXhosa and isiZulu as official languages of the Republic. Section 6(4) requires all official languages to be treated
equitably and to enjoy parity of esteem. Recognising that some indigenous languages had been systematically disadvantaged, the
Constitution imposes an obligation on the state to take positive measures to advance the status of these languages. 219 The
establishment of the Pan South African Language Board is one of the initiatives that aims to foster respect for all languages. The
challenge facing those seeking to foster parity of esteem is to deal with the dominance of English as the international language of
commerce, science, the law and technology.

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 CRITICAL THINKING

Achieving parity of esteem for languages

The University of KwaZulu-Natal announced in 2013 that it would become compulsory in 2014 for all
first-year undergraduate students to complete a course in isiZulu. The language of instruction would remain
English.
Critics of this move have argued that scientists, lawyers, entrepreneurs, politicians, pilots and many
others are required to have a fluency in English to function and to succeed at a global level. Although it
would be good if more South Africans learnt to speak other South African languages, this should not be
made compulsory.
However, supporters of the move point to section 6 of the Constitution which requires that all languages
be treated with parity of esteem. They also note that almost 60% of registered students at the University of
KwaZulu-Natal are first-language isiZulu speakers. They therefore argue that the move is long overdue.
Consider the language policy at your own university. Do you think all the dominant regional languages
spoken in the region in which your institution is situated treat indigenous languages with parity of esteem? If
not, how could this practically be achieved?

Section 30 of the Constitution provides that everyone has the right to use their language while section 31 protects the right to do
so with other members of that community. As we have noted, sections 30 and 31 are supported and buttressed by other rights.
These rights include the right not to be unfairly discriminated against on the basis of language in section 9(3) and the qualified
right to be educated in the official language of a person’s choice in public educational institutions in section 29(2). People cannot
exercise these rights in a manner that unreasonably and unjustifiably limits the rights of others. A decision by a governing body
of an outstanding school to retain Afrikaans as the sole medium of instruction may adversely affect the rights of non-Afrikaans
speaking learners in the region to an effective and proper education.220 As in other instances, competing rights may have to be
appropriately balanced.

PAUSE FOR REFLECTION

Balancing language rights with competing rights

In Head of Department: Mpumalanga Department of Education and Another v Hoërskool Ermelo and
Another, the Constitutional Court sketched the context within which such questions should be considered,
pointing out that apartheid has created a ‘vast discrepancy in access to public and private resources’.221 It
is important always to keep this context in mind when evaluating the scope and content of the appropriate
rights. The quote below illustrates how this context and the mutually enforcing and interdependent rights
give rise to specific constitutional obligations. The Court continued that the ‘fault line of our past oppression
ran along race, class and gender’ and that the apartheid system ‘authorised a hierarchy of privilege and
disadvantage’.222 It then proceeded to remark:

Unequal access to opportunity prevailed in every domain. Access to private or public education
was no exception. While much remedial work has been done since the advent of constitutional
democracy, sadly deep social disparities and resultant social inequity are still with us. It is so
that white public schools were hugely better resourced than black schools. They were lavishly
treated by the apartheid government. It is also true that they served and were shored up by
relatively affluent white communities. On the other hand, formerly black public schools have
been and by and large remain scantily resourced. They were deliberately funded stingily by the
apartheid government. Also, they served in the main and were supported by relatively deprived
black communities. That is why perhaps the most abiding and debilitating legacy of our past is
an unequal distribution of skills and competencies acquired through education. In an
unconcealed design, the Constitution ardently demands that this social unevenness be
addressed by a radical transformation of society as a whole and of public education in
particular. This the Constitution does in a cluster of warranties. I cite only a handful. Section 1( a)
entrenches respect for human dignity, achievement of equality and freedom. Section 6(1) read
with section 6(2) warrants and widens the span of our official languages from a partisan pair to

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 include nine indigenous languages which for long have jostled for space and equal worth.
Sections 9(1) and (2) entitle everyone to formal and substantive equality. Section 9(3) precludes
and inhibits unfair discrimination on the grounds of, amongst others, race and language or
social origin. Section 31(1) promises a collective right to enjoy and use one’s language and
culture. And even more importantly, section 29(1) entrenches the right to basic education and a
right to further education which, through reasonable measures, the state must make
progressively accessible and available to everyone.

… Of course, vital parts of the ‘patrimony of the whole’ are indigenous languages which, but for
the provisions of section 6 of the Constitution, languished in obscurity and underdevelopment
with the result that at high school level, none of these languages have acquired their legitimate
roles as effective media of instruction and vehicles for expressing cultural identity.

And that perhaps is the collateral irony of this case. Learners whose mother tongue is not
English but rather one of our indigenous languages, together with their parents, have made a
choice to be taught in a language other than their mother tongue. This occurs even though it is
now well settled that, especially in the early years of formal teaching, mother tongue instruction
is the foremost and the most effective medium of imparting education. Ample literature indicates
that in Africa the former colonial languages have become the dominant medium of teaching.
Professor Kwessi Kwaa Prah describes this as the ‘language of instruction conundrum in
Africa’. However, I need say no more about this irony because the matter does not arise for
adjudication.223

According to the Oxford Dictionary, language ‘is the method of human communication either spoken or written consisting of the
use of words in a structured and conventional way’.224 Given the nature of this right, people can exercise it meaningfully only
with other members of that linguistic group. Language in this context is not restricted to the list of 11 official languages and
protects the rights of individuals generally to use the language of their choice. The right to use the language of a person’s choice
is integrally related to the right to enjoy a person’s culture and to practise a person’s religion. The Constitution seeks the dual
objective of protecting the specific rights of the speakers of a language and promoting respect for diversity. As Sachs J put it:

Its [the Afrikaans language] protection and development is therefore the concern not only of its
speakers but of the whole South African nation. In approaching the future of the Afrikaans language,
then, the issue should not be regarded as simply one of satisfying the self-centred wishes, legitimate or
otherwise, of a particular group, but as a question of promoting the rich development of an integral
part of the variegated South African national character. … Stripped of its association with race and
political dominance, cultural diversity becomes an enriching force which merits constitutional
protection, thereby enabling the specific contribution of each to become part of the patrimony of the
whole.225

In some instances states have prohibited the use of specific languages in public places. The Turkish Anti-Terror Act 226 made it
an offence to use the Kurdish language in public places. 227 Some international instruments, such as article 7 of the Treaty
between the Allied Powers and Poland, affirm the right of minorities to use their language by providing that ‘no restriction shall
be imposed on the free use by any Polish national of any language in private intercourse, in commerce, in religion, in the press or
in publications of any kind or at public meetings’.
Laws such as the Turkish Anti-Terror Act would be an infringement of section 31 of the Constitution. As the South African
Bill of Rights is, in certain circumstances, of horizontal application, this right may be enforceable against natural or juristic
persons. Thus, private schools and employee organisations that prohibit the use of certain languages are acting contrary to
section 31. There is now a general acceptance that respect for diversity includes allowing communities actively to pursue their
culture, use their language and practise their religion even if it is different from that of the majority and provided it is not
constitutionally offensive to do so.

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 13.5.2 The right not to be unfairly discriminated against on the basis of language
In addition, the right to use and communicate in the language of choice is protected directly and indirectly in a number of
provisions. Section 9(3) of the Constitution prohibits the state from unfairly discriminating directly or indirectly against anyone
on the various grounds including language. Section 9(4) of the Constitution extends this prohibition and provides that no person
may unfairly discriminate on any of the prohibited grounds. The prohibition therefore operates on both a horizontal and vertical
level.
As we noted in chapter 10, the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) was enacted
to give further effect to these constitutional rights. It defines discrimination as any act or omission which imposes burdens,
obligations and disadvantages or withholds benefits, opportunities or advantages from any person on one or more of the
prohibited grounds.228 There must be some link or nexus between the disadvantage suffered and an identified prohibited ground
such as language. Section 6 of the PEPUDA provides that neither the state nor any person may unfairly discriminate against any
person on any of the prohibited grounds including language. However, what is prohibited is unfair discrimination and not simply
discrimination. Once a person makes out a prima facie case of discrimination, a presumption of unfairness effectively arises
which the respondent needs to rebut. In determining unfairness, the court will have regard for the impact of the discrimination on
the complainant, whether it is reasonable and justifiable, and whether the respondent has taken reasonable steps to address the
disadvantage and accommodate diversity. These issues are discussed more fully under the right to equality.

13.5.3 The right to receive education in the official language of choice

The language provisions set out above must be read in conjunction with section 29(2) of the Constitution. This section protects
the right to receive education in the official language of choice in public institutions where that education is reasonably
practicable. Section 29(2) goes on to provide that:

to ensure the effective access to, and implementation of, this right, the state must consider all
reasonable educational alternatives, including single medium institutions, taking into account
(a) equity;
(b) practicability; and
(c) the need to redress the results of past racially discriminatory laws and practices.

The right of Afrikaans medium public schools to continue to be single medium schools was one of the most contentious issues in
the constitutional negotiation process. The depth of sentiment felt by some communities about their language of choice was
demonstrated by the protracted legal battles by some schools to retain Afrikaans as sole medium of instruction. 229 These cases –
adjudicated in the context set out above – pose difficult questions about the accommodation of diversity in the language field in
cases where the dominant language of instruction at a school may have the effect of excluding pupils who have suffered unfair
discrimination in the past.
In Minister of Education (Western Cape) v Mikro Primary School Governing Body,230 the Supreme Court of Appeal (SCA)
had to consider the legality of a directive issued by the Department of Education directing the governing body of an Afrikaans
medium school to convert the school to a parallel medium school. The department wanted the school to admit learners and
provide tuition for them in English. The school, which was historically an Afrikaans medium school, refused various requests by
the department to convert it to a parallel medium school. The department then issued the directive.
The Court held that it is the function of the governing body of a public school to determine the language policy of the school
subject to the Constitution and applicable law.231 In this instance, the governing body had acted lawfully. If the governing body
had acted unreasonably in the adoption of its language policy, the department could challenge it in terms of the Promotion of
Administrative Justice Act (PAJA).232 Alternatively, the head of the Department of Education could, in terms of the South
African Schools Act (SASA), replace the governing body if he or she formed the view that it had ceased to perform the functions
allocated to it.233 The Court held that by not following either of these options and by instructing the principal to admit learners
contrary to the admission and language policies of the school, the Department of Education had acted unlawfully. 234 According
to the Court, the Department did not have the power to determine the language or admission policy of the school. 235 The
directive to the school was seeking to do just that and was therefore declared unlawful and invalid. 236 The school was thus
permitted to continue being a single medium school and allowed to determine its language preferences. 237
Subsequently, the SCA overruled parts of the obiter dictum in Mikro in Hoërskool Ermelo. The head of the Department of
Education took the view that the governing body was acting unreasonably in not changing the school from an Afrikaans medium
school to a parallel medium school and disbanded it. He then appointed an interim committee to determine the language policy of

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 the school. The interim committee decided to change the language policy to that of a parallel medium school. The school
challenged all these decisions and the SCA had to determine whether the department had acted legally.
The SCA held that the SASA vests the governance of the school in the governing body. 238 Importantly, the governing body
has the authority to determine the language policy of the school subject to complying with the Constitution and applicable law.
239 The governing body comprising parents, learners, educators, members of staff and the principal is representative of the

school community and is thus in a position to make an informed decision on behalf of the school community. 240 The SCA held:

Language is a sensitive issue. Great care is taken in the Act [SASA] to establish a governing body that
is representative of the community served by a school and to allocate to it the function of determining
the language policy. The Act only authorises the governing body to determine the language policy of an
existing school, and nobody else. As nobody else is empowered to exercise that function, it is
inconceivable that section 22 was intended to give the head of department the power to withdraw that
function, albeit on reasonable grounds, and appoint somebody else to perform it, without saying so
explicitly.241

The head of the Department of Education could not do indirectly that which he was prohibited from doing directly. He could not
change the language policy of the school as this power was vested in the governing body. The SCA held, after interpreting the
SASA, that he could not achieve that objective by disbanding the governing body and by appointing an interim body to change
the policy. The Court thus held that the obiter in Mikro indicating otherwise was incorrect.242
The Mpumalanga Department of Education then appealed this decision to the Constitutional Court. 243 Hoërskool Ermelo
had been in existence for some 98 years and had a reputation for excellence. The Department contended that the school had
excess capacity and hence its insistence that it operate as a parallel medium school. In addition, the number of learners attending
the school had steadily diminished over the years. All the English medium schools in the immediate vicinity of the school were
filled to capacity.
The Constitutional Court took the view that while this was a case about legality, it was also about whether it was
unreasonable for a school to preserve its Afrikaans-only language policy in the face of dwindling numbers and greater demand for
tuition in English.244 The broader description of the issue meant that social imperatives to redress past disadvantages had to be
taken into account together with the need to act lawfully. 245 The Court held that one of the broader visions of the Constitution is
that ‘social unevenness be addressed by a radical transformation of society as a whole and of public education in particular’. 246
The Court, with this in mind, interpreted section 29(2) of the Constitution. The Court held that the section comprised two
parts. The first part protects the right to receive public education in the language of choice. However, this right is modified by the
requirement that it accrues where reasonably practicable. What is reasonable will depend on the circumstances of the particular
case. This would include availability of and accessibility to public schools, their enrolment levels, the medium of instruction
adopted by the governing body, language choices of the parents and learners, and the curriculum options. 247 Further, the Court
held that this aspect of the right means that if a learner already enjoys the right to be educated in the language of choice, the state
has a negative duty not to diminish the right without adequate justification. 248
According to the Court, the second part of section 29(2) refers to the manner in which the state must ensure access to the
right to be taught in the language of choice. In deciding on the preferred option, whether it be a single medium school, parallel or
dual medium school, the ‘state must take into account what is fair, feasible, and satisfies the need to remedy the results of past
racially discriminatory laws and practices’.249 The main purpose of the SASA was to create a system that would redress past
injustices in the provision of education and provide education of a progressively high quality to learners. According to the Court,
the SASA devolved to the governing body the power to determine the language of instruction of the school. 250 However, the
exercise of this power must be in accordance with the Constitution. The Court interpreted this to mean that the policy adopted
must fit with the ethos of the Constitution. 251 The Constitution requires the language policy to assist in making education
progressively available to everyone, to take into account what is fair and practicable, and to enhance historical redress. Thus, the
school must have regard to making education accessible to all in the area and cannot restrict its consideration to the interests of
the learners attending the school.252
The Constitutional Court took the view that the authority of the head of the Department of Education to revoke the functions
of a governing body was a broad one and it related to any function conferred on the governing body by law, including the power
to determine the medium of instruction.253 Thus, the Court affirmed the reasoning in Mikro that the head of the Department of
Education may, on reasonable grounds, withdraw a school’s language policy.254
The Court also indicated that in determining whether the head of the Department of Education has acted reasonably, regard
must be had to the nature of the function, the purpose for which it is revoked in the light of the best interest of learners, including

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 potential learners, the views of the governing body, the nature of the power sought to be withdrawn and the well-being of the
school, its learners, parents and educators.255 Importantly, the Court held that section 29(2) of the Constitution imposes a duty on
the state to respect the right to be taught in a language of choice. It also imposes the additional responsibility on the state of
ensuring that there are adequate school places for all children in the province and that admission to schools is fair. 256 A finding
that language policies vest exclusively in the governing body could frustrate the broader objectives of the Constitution and the
SASA which is to provide an effective education for all.257
The Court concluded that the Department of Education was entitled to intervene and revoke the exercise of any function
exercised by the governing body if reasonable grounds exist.258 The Constitutional Court thus overruled the SCA. However, the
Court concluded that legally once a power is revoked, it vests in the head of the Department of Education and he or she then
needs to exercise that power. In this case, the head of the Department erred by revoking the power and then transferring it to an
interim committee. He was not permitted to do so and hence the decision of the interim committee was set aside. 259
Section 31 entrenches the right of people belonging to a particular linguistic community to use their language when
interacting with members of their community. Finally, every accused person has the right to be tried in a language that he or he
understands. If this is not practicable, the accused has the right to have the proceedings interpreted in that language.

PAUSE FOR REFLECTION

The implications of the expansive interpretation of section 29(2) by the Constitutional

Court
The issue of single medium schools proved highly contentious during the constitutional negotiations. The
National Party robustly argued for the right of schools to determine the medium of instruction to protect the
right of single medium Afrikaans schools to continue to exist. The ANC and its allies equally forcefully
opposed this as they were concerned that this would permit segregated education to continue. As a
compromise, the negotiating parties agreed on the somewhat convoluted provisions of section 29(3).
It can be argued that the expansive interpretation of section 29(2) by the Constitutional Court in
Hoërskool Ermelo effectively emasculates the right to be educated in Afrikaans single medium educational
institutions. Given South Africa’s history of racial discrimination and exclusion, it would be unconscionable if
language provisions were used to exclude black learners from a school and in effect to deny black learners
access to well resourced schools. The Constitutional Court, alive to these dangers, provided an expansive
interpretation of section 29(2) of the Constitution in an effort to prevent the section from being used to
exclude black learners from access to well resourced schools on the basis of language rights.

13.5.4 Languages: section 6 of the Constitution

Section 6(1) provides that there are 11 official languages in the Republic. These are Sepedi, Sesotho, Setswana, siSwati,
Tshivenda, Xitsonga, Afrikaans, English, isiNdebele, isiXhosa and isiZulu. The Constitution recognises that many of the
indigenous languages were neglected and historically diminished. There is therefore a need to take practical steps to elevate their
status and enhance their usage.260 Other languages spoken by minorities in South Africa, such as Hindi and Greek, were not
listed as official languages. They are spoken in other parts of the world and their survival does not depend on usage and growth in
South Africa.
Section 6(3) allows the national and provincial governments to use any particular official languages for governance purposes
after having regard to usage, practicality, expense, regional circumstances and preferences of the population as a whole or in the
province concerned. At the very least, the national government and each provincial government must use two official languages.
All official languages must enjoy parity of esteem and must be treated equitably. 261 The duty to act equitably does not
necessitate equal treatment but requires that the state act even-handedly and fairly towards the various languages. 262 However,
the requirement that the state be even-handed in its treatment of the various languages is subject to the requirement that the state
must take practical measures to elevate the status and advance the use of indigenous languages which in the past had a diminished
use and status.
The Constitution also provides for the establishment of the Pan South African Language Board. This Language Board has a
constitutional mandate to promote and create conditions for the development of all official languages together with the Khoi,
Nama, San and sign languages. In addition, it is required to promote and ensure respect for various other languages spoken by
communities in South Africa.

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 PAUSE FOR REFLECTION

Should Tamil be one of South Africa’s official languages?

Although the Constitution officially recognises 11 languages, many more languages are spoken in South
Africa. In a memorable exchange between Mohamed J and Mr B Naidoo during the hearings in Certification
of the Constitution of the Republic of South Africa, 1996,263 the issue was whether the drafters of the
Constitution had acted contrary to the constitutional principles by not recognising Tamil as one of the official
languages. The Constitutional Court rejected this argument.
Mr Naidoo argued that Tamil, like the indigenous languages, was discriminated against under apartheid
and should also have been afforded recognition as an official language. Tamil is a language spoken by a
section of the Indian community and is one of the oldest languages in the world. Mohamed J responded
that unlike the indigenous languages, Tamil is spoken by millions outside South Africa and will survive and
flourish whatever happens in this country. This is not the case with the indigenous languages and hence
there is a need to provide the additional protection of official recognition for them. Provisions in the
Constitution prohibit unfair discrimination against Tamil speakers and protect their rights to enjoy and use
their language and culture. Their language rights are thus adequately protected by other provisions of the
Constitution.264
Are you convinced by Mohamed J’s reasoning as to why it was permissible for Tamil not to be
recognised as an official language given the necessity, from a symbolic perspective, for previously
disadvantaged languages to be recognised and affirmed?

13.5.5 The Pan South African Language Board

The Pan South African Language Board Act 265 was passed to provide for the recognition, implementation and furtherance of
multiculturalism in South Africa and to promote the development of previously marginalised languages. An independent Board
with defined statutory powers was created to realise and achieve the mandate. Some of the objectives of the Board are to:
• create conditions for the development and the promotion of the equal use and enjoyment of all the official South African
languages
• prevent the use of any language for the purposes of exploitation, domination or division
• promote multilingualism and translation and interpretation facilities
• foster respect for languages spoken in the Republic
• further the development of the official languages
• promote respect for and the development of other languages used by communities in South Africa. 266

The Board has various functions including:

• making recommendations with regard to any proposed or existing legislation, practice and policy dealing with language
matters
• advising an organ of state on the implementation of any proposed or existing legislation, policy or practice that relates to
language matters
• investigating any complaint alleging a violation of a language right, language policy and language practice
• initiating studies and research aimed at promoting and creating conditions for the development and use of the various
languages.

Any person acting on his or her own behalf or on behalf of another person may lodge a complaint about an alleged violation or
threatened violation of a language right with the Board. 267 The complaint must be in writing and must specify details of the
violation. The Board is required to render its assistance free of charge. The Board, on receipt of the written complaint, is required
to investigate the alleged violation of any language right, policy or practice. The Board has the power to subpoena persons to
appear before it and give evidence and produce relevant documents and records.
If, after investigation, the Board is of the opinion that there is substance to the complaint, it will endeavour by mediation or
conciliation to resolve the issue or rectify any act or omission. If the Board is unsuccessful in mediating the matter and it is of the
view that there are good reasons to address the matter, it shall assist the complainant further. It may make a recommendation to
an organ of state against which the complaint is lodged recommending that financial or other assistance be provided as redress.

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 The Board may provide the complainant with financial or other assistance to redress any damage. Alternatively, the Board may
provide the complainant with financial or other assistance to enable him or her to obtain relief from any other organ of state or a
court of law.
At the time of writing, Parliament has not passed the act required by the Constitution to regulate and monitor the use of
official languages by the national and provincial governments. An application was successfully brought in the High Court
compelling the government to comply with its constitutional obligations.

SUMMARY

It will always be difficult to accommodate the beliefs and practices of individuals who belong to different cultures, who have
different religious beliefs and who speak different languages. In a heterogeneous society like South Africa, this challenge
becomes even more pronounced. In this chapter we look at the various rights that protect these diverse interests and ask how
these interests should be accommodated to prevent the beliefs or actions of some from harming others in society.
To this end we look at the scope and content of freedom of association and show how this right is often instrumental in
helping to protect other rights including political rights. We also ask when the right to freedom of association will be trumped by
other rights, including the right not to be discriminated against. We point out that the right to freedom of religion, belief and
conscience does not only guarantee the right to believe in a God and to practise those beliefs, but also the right not to believe in
any God at all. We ask when justifiable limits can be placed on the exercise of religious beliefs and practices, pointing out that
some beliefs and practices are so harmful to others while not sufficiently closely associated with the core aspects of that religion
that these beliefs and practices will not be protected by the Constitution.
Finally, we engage with the manner in which all associational rights protect individuals while acknowledging that these
rights are often exercised more effectively in conjunction with others or when individuals belong to institutions where these rights
are exercised collectively. However, we note that the Constitution does not protect group rights, but only the rights of individuals
who belong to specific cultural, language or religious or groups.

1 Woolman, S ‘Freedom of association’ in Woolman, S and Bishop, M (eds) (2013) Constitutional Law of South Africa 2nd ed rev service 5 44.6.
2 MEC for Education: Kwazulu-Natal and Others v Pillay (CCT 51/06) [2007] ZACC 21; 2008 (1) SA 474 (CC); 2008 (2) BCLR 99 (CC) (5 October
2007) para 150.
3 Ackermann, L (2012) Human Dignity: Lodestar for Equality in South Africa 109.
4 Certification of the Amended Text of the Constitution of The Republic Of South Africa, 1996 (CCT37/96) [1996] ZACC 24; 1997 (1) BCLR 1; 1997 (2)
SA 97 (4 December 1996) para 24.
5 Second Certification para 26.
6 (CCT 51/06) [2007] ZACC 21; 2008 (1) SA 474 (CC); 2008 (2) BCLR 99 (CC) (5 October 2007) para 53.
7 Currie, I and De Waal, J (2013) Bill of Rights Handbook 6th ed 397.
8 Quoted by Woolman (2013) 44.1.
9 The Canadian Supreme Court approved of this analysis in Alberta Union of Provincial Employees v Alberta (AG) (1987), 28 C.R.R. 305. (SCA).
10 Summers, CW (1964) Freedom of association and compulsory unionism in Sweden and the United States University of Pennsylvania Law Review
112(5):674–96 at 674 as quoted in Alberta Union of Provincial Employees v Alberta (AG) (1987), 28 C.R.R. 305. (SCA).
11 Pillay para 150.
12 See National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others (CCT11/98) [1998] ZACC 15; 1999 (1) SA 6; 1998
(12) BCLR 1517 (9 October 1998) para 32, for example, where the Constitutional Court held that ‘privacy recognises that we all have a right to a sphere
of private intimacy and autonomy which allows us to establish and nurture human relationships’.
13 (CCT35/99) [2000] ZACC 8; 2000 (3) SA 936; 2000 (8) BCLR 837 (7 June 2000) para 37.
14 468 US 609 (1984) 618.
15 See generally Dawood.
16 468 US 609 (1984) 620.
17 Roberts v United States Jaycees 468 US 609 (1984) 620.
18 357 U.S. 449 (1958).
19 NAACP v Alabama 357 U.S. 449 (1958) para 462.
20 Woolman (2013) 44.9.
21 [2002] 1 WLR 448.
22 Royal Society for the Prevention of Cruelty to Animals (RSPCA) v Attorney-General [2002] 1 WLR 448 para 37.
23 515 US 557 (1995).
24 515 US 557 (1995) para 21.
25 Woolman (2013) 44.32.
26 Currie and De Waal (2013) 403.
27 Currie and De Waal (2013) 404.
28 Act 4 of 2000, discussed in detail in Chapter 12.
29 Woolman (2013) 44.35.
30 See Hoffmann v South African Airways (CCT17/00) [2000] ZACC 17; 2001 (1) SA 1; 2000 (11) BCLR 1235; [2000] 12 BLLR 1365 (CC) (28 September
2000) para 37 where the Constitutional Court stated: ‘Prejudice can never justify unfair discrimination.’
31 Currie and De Waal (2013) 404.
32 Currie and De Waal (2013) 404.
33 See McWhinney, E (1957) The German Federal Constitutional Court and the Communist Party decision Indiana Law Journal 32(3):295–312 at 295.
34 424 U.S. 1 (1976).
35 Buckley v Valeo 424 U.S. 1 (1976) para 17.

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 36 Buckley v Valeo 424 U.S. 1 (1976) para 18.
37 (9828/03) [2005] ZAWCHC 30; 2005 (5) SA 39 (C) [2005] 3 All SA 45 (C) (20 April 2005).
38 Act 2 of 2000.
39 IDASA para 33.
40 IDASA para 71.
41 IDASA para 71.
42 (CCT 109/12) [2012] ZACC 31; 2013 (2) BCLR 202 (CC) (18 December 2012) para 16.
43 Ramakatsa para 16.
44 Ramakatsa para 16.
45 Ramakatsa para 65.
46 Ramakatsa para 68.
47 Economic Freedom Fighters Constitution, adopted on 27 July 2013, available at http://effighters.org.za/documents/constitution/.
48 Case ref no.: GP/2008/0161/L BIOS available at at http://cdn.bizcommunity.com/f/0902/Katy%20Katopodis%20vs%20%20FBJ%20findings.pdf.
49 Forum for Black Journalists [2009] 2 All SA 499 (SAHRC) 510.
50 Forum for Black Journalists 511.
51 Forum for Black Journalists 512.
52 Forum for Black Journalists 511.
53 Forum for Black Journalists 511.
54 (100/06) [2007] ZASCA 56; [2007] SCA 56 (RSA); [2007] 3 All SA 318 (SCA) (18 May 2007).
55 Midi Television para 9 on page 519 of Forum for Black Journalists.
56 Forum for Black Journalists 520.
57 White, S (1997) Freedom of association and the right to exclude The Journal of Political Philosophy 5(4):373–91 at 373.
58 White (1997) 380.
59 White (1997) 380.
60 White (1997) 381.
61 Minister of Home Affairs and Another v Fourie and Another (CCT 60/04) [2005] ZACC 19; 2006 (3) BCLR 355 (CC); 2006 (1) SA 524 (CC)
(1 December 2005) para 89.
62 Fourie para 89. See also Christian Education South Africa v Minister of Education (CCT4/00) [2000] ZACC 11; 2000 (4) SA 757; 2000 (10) BCLR 1051
(18 August 2000) para 36.
63 National Coalition for Gay and Lesbian Equality v Minister of Justice para 38.
64 The survey, conducted during November 2011 to January 2012, was based on interviews with 52 000 men and women from 57 countries in five
continents. See Fewer religious people in SA – Survey available at http://www.news24.com/SouthAfrica/News/Fewer-religious-people-in-SA-survey
-20120810.
65 Statistics South Africa (2001) Census 2001 by province, gender, religion recode (derived) and population group.
66 Country Profile: South Africa (2007–8) Religious Intelligence.
67 See Farlam, P ‘Freedom of religion, belief and opinion’ in Woolman and Bishop (2013) 41.13.
68 (CCT4/00) [2000] ZACC 11; 2000 (4) SA 757; 2000 (10) BCLR 1051 (18 August 2000) para 36.
69 Christian Education South Africa para 36.
70 See generally Dubow, S (1992) Afrikaner nationalism, apartheid and the conceptualization of race Journal of African History 33(2):209–37.
71 Van der Vyver, JD ‘Religion’ in Joubert, WA (ed) (2009) Law of South Africa 2nd ed Vol 23 197. See also S v Lawrence, S v Negal; S v Solberg
(CCT38/96, CCT39/96, CCT40/96) [1997] ZACC 11; 1997 (10) BCLR 1348; 1997 (4) SA 1176 (6 October 1997) para 149. Van der Vyver points out
that the Publications Act 42 of 1974 ‘seemingly subject[ed] the entire censorship system to the dictates of Christian morality’.
72 Lawrence para 149.
73 Lawrence para 151. See also, generally, Sinclair, J (1996) The Law of Marriage volume 1 164–5.
74 Seedat’s Executors v The Master (Natal) 1917 AD 302 at 307 (per Innes CJ). See also Ismail v Ismail 1983 (1) SA 1006 (A) 1026; Kerr, AJ (1984) Back
to the problems of a hundred or more years ago: Public policy concerning contracts relating to marriages that are potentially or actually polygamous South
African Law Journal 101(3):445–56 at 445.
75 Fourie para 89.
76 Fourie para 89.
77 Fourie para 90.
78 Fourie para 90.
79 Fourie para 90.
80 Fourie para 94.
81 Fourie para 94.
82 Fourie para 90.
83 Fourie para 90.
84 Fourie para 94.
85 Fourie para 96.
86 Fourie para 94.
87 Fourie para 108.
88 Act 17 of 2006.
89 (CCT38/96, CCT39/96, CCT40/96) [1997] ZACC 11; 1997 (10) BCLR 1348; 1997 (4) SA 1176 (6 October 1997).
90 Lawrence para 119.
91 Everson v Board of Education of the Township of Ewing [1947] USSC 44; 330 US 1, 15–6 (1947) para 11.
92 Lawrence para 100.
93 Lawrence para 118.
94 Lawrence para 101.
95 Lawrence para 92.
96 Lawrence para 92.
97 Prince v President of the Law Society of the Cape of Good Hope (CCT36/00) [2002] ZACC 1; 2002 (2) SA 794; 2002 (3) BCLR 231 (25 January 2002)
para 38, where Ngcobo stated that:
The Court has on two occasions [in Lawrence and Christian Education] considered the right to freedom of religion. On each occasion, it is
accepted that the right to freedom of religion at least comprehends: (a) the right to entertain the religious beliefs that one chooses to entertain; (b)

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 the right to announce one’s religious beliefs publicly and without fear of reprisals; and (c) the right to manifest such beliefs by worship and
practice, teaching and dissemination. Implicit in the right to freedom of religion is the ‘absence of coercion or restraint’. Thus freedom of religion
may be impaired by measures that force people to act or refrain from acting in a manner contrary to their religious beliefs.
See also Christian Education para 18.
98 Prince para 38.
99 Lawrence para 120, quoting from the US Supreme Court judgment of Engel v Vitale: [1962] USSC 116; 370 US 421 (1962) 431.
100 Lawrence para 102.
101 Lawrence para 122.
102 Lawrence para 121.
103 Lawrence paras 121–2.
104 Lawrence para 122.
105 Lawrence para 123.
106 Lawrence para 123.
107 Lawrence para 123.
108 Lawrence para 179.
109 Act 27 of 1989.
110 Lawrence para 131.
111 Lawrence para 75.
112 Lawrence para 148.
113 Lawrence para 148.
114 Lawrence para 152.
115 Lawrence para 152.
116 Lawrence para 173.
117 Lawrence paras 118–25.
118 Lawrence para 179.
119 Freeman, GC (1983) The misguided search for the constitutional definition of religion Georgetown Law Journal 71(6):1519–66 quoted in Stone, GR (ed)
(1996) Constitutional Law 3rd ed 1546.
120 Lyng v Northwest Indian Cemetery 485 US 439 para 457.
121 (CCT36/00) [2002] ZACC 1; 2002 (2) SA 794; 2002 (3) BCLR 231 (25 January 2002). Although Ngcobo J dissented, these remarks are not inconsistent
with the reasoning of the majority.
122 Act 140 of 1992.
123 Act 101 of 1965.
124 Prince para 42. See also Taylor v Kurstag NO and Others 2005 (1) SA 362 (W); 2005 (7) BCLR 705 (W); [2004] 4 All SA 317 (W).
125 Sweden recognises new file-sharing religion Kopimism (2012, 5 January) available at http://www.bbc.co.uk/news/technology-16424659.
126 See generally Bilchitz, D (2011) Should religious organisations be entitled to discriminate? South African Journal on Human Rights 27(2):219–48; Lenta,
P (2012) The right of religious associations to discriminate South African Journal on Human Rights 28(2):231–57; Woolman, S (2012) Seek justice
elsewhere: An egalitarian pluralist’s reply to David Bilchitz on the distinction between differentiation and domination South African Journal on Human
Rights 28(2):273–95.
127 (26926/05) [2008] ZAEQC 1; (2009) 30 ILJ 868 (EqC) (27 August 2008).
128 Bilchitz (2011) 221.
129 Pillay para 73.
130 Christian Education para 35.
131 Act 84 of 1996.
132 Christian Education para 35.
133 Christian Education para 37.
134 Christian Education para 19.
135 Christian Education para 23.
136 Christian Education para 27.
137 Christian Education para 51.
138 Christian Education para 51.
139 Christian Education para 51.
140 Christian Education para 51.
141 Prince para 135.
142 Prince para 129.
143 Prince para 129.
144 Prince para 130.
145 Prince para 130.
146 Prince para 83.
147 Prince para 77.
148 This example is based loosely on the facts in Multani v Commission Scolaire Marguerite – Bourgeoys [2006] 1 SCR 256. In this case, the Canadian
Supreme Court struck down a school board’s decision that prohibited a Sikh child from wearing a kirpan to school on the grounds that it infringed the
right to freedom of religion guaranteed in section 2(a) of the Canadian Charter of Rights and Freedoms.
149 Torcaso v Watkins 367 U.S. 488.
150 Torcaso v Watkins 367 U.S. 488 para 489.
151 Lawrence para 148.
152 Wittmann v Deutscher Schulverein 1998 (4) SA 423 (T).
153 Lawrence para 103.
154 Quoted by Farlam (2013) 41.51.
155 See the earlier discussion in this chapter on the issue of coercion versus even-handedness.
156 Currie and De Waal (2013) 330.
157 1998 (4) SA 423 (T) para 449.
158 Act 25 of 1961.
159 1983 (1) SA 1006 (A).
160 Farlam (2013) 41.54.
161 Fourie para 94.

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 162 Fourie para 96.
163 Fourie para 98.
164 Act 120 of 1998.
165 Gumede (born Shange) v President of Republic of South Africa and Others (CCT 50/08) [2008] ZACC 23; 2009 (3) BCLR 243 (CC); 2009 (3) SA 152
(CC) (8 December 2008) para 16. See also Mayelane v Ngwenyama and Another (CCT 57/12) [2013] ZACC 14; 2013 (4) SA 415 (CC); 2013 (8) BCLR
918 (CC) (30 May 2013) para 26.
166 Gumede para 21 and Mayelane para 26.
167 S 1.
168 Mayelane para 70.
169 Christian Education para 24.
170 S 6(4) of the Constitution.
171 Christian Education para 23.
172 Currie and De Waal (2013) 626–7.
173 Currie and De Waal (2013) 627.
174 South African Human Rights Commission (2006) The Exclusionary Policies of Voluntary Associates: Constitutional Considerations.
175 South African Human Rights Commission (2006) 15.
176 Adopted by the General Assembly of the UN, Resolution 2200(xxi) of 16 December 1966.
177 Adopted by the Organisation of African Unity at the 18th Conference of the Heads of State and Government on 27 June 1981, Nairobi, Kenya. The treaty
entered into force on 21 October 1986.
178 In Amnesty International and Others v. Sudan, African Commission on Human and Peoples’ Rights, Comm. No. 48/90, 50/91, 52/91, 89/93 (1999)
para 82, the Commission appears to be advocating that restrictions on the freedom of association must be proportionate and appropriate to the objectives
of the law.
179 Adopted by General Assembly Resolution 47/135 of 18 December 1992.
180 S 5 of the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities Act 19 of 2002.
181 S 181 of the Constitution.
182 Second Certification para 24.
183 Christian Education para 23.
184 Mandla and Another v Dowell Lee and Another [1983] 1 All ER 1062 (HL).

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 185 Pillay para 48.
186 Pillay para 49.
187 Pillay para 50.
188 See Kleinfontein raises old race questions (2013, 31 May) available at http://www.iol.co.za/news/politics/kleinfontein-raises-old-race-questions-1
.1525543
189 Christian Education para 26.
190 Lovelace v Canada CCPR/C/13/D/24/1977, United Nations International Covenant on Civil and Political Rights Communications No 24/1977, 30 July
1981.
191 2005 (1) SA 362 (W); 2005 (7) BCLR 705 (W); [2004] 4 All SA 317 (W).
192 The edict is referred to as Cherem in Jewish law.
193 Taylor v Kurtstag para 58.
194 Taylor v Kurtstag para 23.
195 Taylor v Kurtstag para 26.
196 Taylor v Kurtstag para 58.
197 Taylor v Kurtstag para 58.
198 Taylor v Kurtstag para 58.
199 (CCT 49/03) [2004] ZACC 17; 2005 (1) SA 580 (CC); 2005 (1) BCLR 1 (CC) (15 October 2004).
200 Act 38 of 1927.
201 Bhe para 43.
202 Bhe para 44.
203 Bhe para 76.
204 Bhe para 80.
205 Bhe para 15.
206 Bhe para 81.
207 Bhe para 91.
208 Bhe para 92.
209 Bhe para 115.
210 Bhe para 116.
211 Act 81 of 1987.
212 Bhe para 117.
213 (CCT 50/08) [2008] ZACC 23; 2009 (3) BCLR 243 (CC); 2009 (3) SA 152 (CC) (8 December 2008).
214 Act 16 of 1985.
215 Proclamation R151 of 1987.
216 Gumede para 10.
217 Gumede para 13.
218 Gumede para 14.
219 S 6(2) of the Constitution.
220 See Head of Department : Mpumalanga Department of Education and Another v Hoërskool Ermelo and Another (CCT40/09) [2009] ZACC 32; 2010 (2)
SA 415 (CC); 2010 (3) BCLR 177 (CC) (14 October 2009).
221 (CCT40/09) [2009] ZACC 32; 2010 (2) SA 415 (CC); 2010 (3) BCLR 177 (CC) (14 October 2009) para 45.
222 Hoërskool Ermelo (CC) para 45.
223 Hoërskool Ermelo (CC) paras 45–9.
224 Online Oxford English Dictionary available at http://www.oxford dictionaries.com/definition/english/language.
225 Gauteng Provincial Legislature In re: Gauteng School Education Bill of 1995 (CCT39/95) [1996] ZACC 4; 1996 (4) BCLR 537; 1996 (3) SA 165
(4 April 1996) para 49.
226 Act 3713 of 1991.
227 Example quoted in Woolman, S ‘Community rights: Language, culture and religion’ in Woolman and Bishop (2013) 58.44.
228 S 1 of the PEPUDA.
229 See Governing Body of the Rivonia Primary School and Another v MEC for Education: Gauteng Province and Others (11/08340) [2011] ZAGPJHC 182;
[2012] 1 All SA 576 (GSJ); 2012 (5) BCLR 537 (GSJ) (7 December 2011); Governing Body of the Rivonia Primary School and Another v MEC for
Education: Gauteng Province and Others (161/12) [2012] ZASCA 194; 2013 (1) SA 632 (SCA); [2013] 1 All SA 633 (SCA) (30 November 2012);
Hoërskool Ermelo (CC) and Minister of Education (Western Cape) v Mikro Primary School Governing Body (140/2005) [2005] ZASCA 66; [2005] 3 All
SA 436 (SCA) (27 June 2005).
230 (140/2005) [2005] ZASCA 66; [2005] 3 All SA 436 (SCA) (27 June 2005).
231 Mikro Primary School paras 29 and 32.
232 Act 3 of 2000. See Mikro Primary School para 36.
233 Mikro Primary School para 37.
234 Mikro Primary School para 1.
235 Mikro Primary School para 5.
236 Mikro Primary School para 43.
237 Mikro Primary School para 43.
238 Hoërskool Ermelo and Another v Head of Department of Education: Mpumalanga and Others (219/2008) [2009] ZASCA 22; 2009 (3) SA 422 (SCA);
[2009] 3 All SA 386 (SCA) (27 March 2009) para 32.
239 Hoërskool Ermelo (SCA) para 59.
240 Hoërskool Ermelo (SCA) para 74.
241 Hoërskool Ermelo (SCA) para 21.
242 Hoërskool Ermelo (SCA) paras 23–4.
243 Hoërskool Ermelo (CC).
244 Hoërskool Ermelo (CC) para 38.
245 Hoërskool Ermelo (CC) para 40.
246 Hoërskool Ermelo (CC) para 47.
247 Hoërskool Ermelo (CC) para 52.
248 Hoërskool Ermelo (CC) para 40.
249 Hoërskool Ermelo (CC) para 53.

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 250 Hoërskool Ermelo (CC) para 57.
251 Hoërskool Ermelo (CC) para 59.
252 Hoërskool Ermelo (CC) para 51.
253 Hoërskool Ermelo (CC) para 58.
254 Hoërskool Ermelo (CC) para 72.
255 Hoërskool Ermelo (CC) para 74.
256 Hoërskool Ermelo (CC) para 76.
257 Hoërskool Ermelo (CC) para 77.
258 Hoërskool Ermelo (CC) para 78.
259 Hoërskool Ermelo (CC) para 88.
260 S 6(2) of the Constitution.
261 S 6(4) of the Constitution.
262 See the comments of O’Regan J when considering the meaning of equitable in the context of s 15(2) in Lawrence para 122.
263 (CCT 23/96) [1996] ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC) (6 September 1996)
264 First Certification para 209.
265 Act 59 of 1995.
266 S 3 of the Pan SA Language Board Act.
267 S 11 of the Pan SA Language Board Act deals with the procedure regarding complaints lodged with the Board.

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 Political and process rights
All rights reserved. May not be reproduced in any form without permission from the publisher, except fair uses permitted under U.S. or applicable copyright law.

14.1 The right to freedom of expression

14.1.1 Introduction
14.1.2 Scope and ambit of the right to freedom of expression
14.1.3.1 Introduction
14.1.3.2 The role of the press
14.1.3.3 Access to and broadcasting of court proceedings
14.1.3.4 Access to divorce proceedings
14.1.3.5 Prior restraints
14.1.3.6 The regulation of broadcasting
14.1.3 Freedom of the press and other media
14.1.4 Hate speech
14.1.4.1 Introduction
14.1.4.2 The scope and extent of hate speech
14.2 The rights to freedom of assembly, demonstration, picket and petition
14.2.1 Introduction
14.2.2 Scope and ambit of the right to assembly
14.2.3 Distinguishing between assemblies, demonstrations, pickets and petitions
14.2.3.1 Assemblies and demonstrations
14.2.3.2 Pickets
14.2.3.3 Petitions
14.2.4 The Regulation of Gatherings Act 205 of 1993
14.2.5 Liability for damage caused during a gathering
14.3 Political rights
14.3.1 Introduction
14.3.2 The right to make political choices and the role of political parties
14.3.2.1 Introduction
14.3.2.2 The regulation of political parties
Copyright 2014. Oxford University Press Southern Africa.

14.3.3 State funding of political parties

14.3.4 The right to free, fair and regular elections
14.3.5 The right to vote
14.3.5.1 Introduction
14.3.5.2 Regulating the right to vote
14.3.5.3 Exclusions from the right to vote
14.3.5.3.1 Introduction
14.3.5.3.2 Prisoners
14.3.5.3.3 Citizens working abroad
14.3.6 The right to stand for and hold office
Summary

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AN: 948967 ; Brand, Danie, Freedman, Warren, De Vos, Pierre.; South African Constitutional Law in Context
Account: s5341985.main.ehost 391
 14.1 The right to freedom of expression

14.1.1 Introduction
In the pre-democratic era, the apartheid state enforced severe forms of censorship to limit the range of political speech as well as
the range of artistic expression allowed in the country. It was a criminal offence to quote the words of former President Nelson
Mandela or any other member of the banned liberation movements. The Film and Publications Board also regularly banned
movies and books because of their political or sexual content. Banning made it a criminal offence to possess, read or watch these
products of artistic expression. During the various states of emergency which were in place for long periods in the 1980s, the
ability of newspapers to report on the actions of the police and the military were severely limited by law.
Thus, in this pre-Internet era, the dark pall of censorship hung over South Africa. These restrictions did not only constitute a
denial of democracy. They also exacerbated the impact of the systemic violations of other fundamental human rights in South
Africa.1

PAUSE FOR REFLECTION

Black Wednesday
On 12 September 1977, Steve Bantu Biko – who espoused the idea of black consciousness – died at the
hands of the apartheid police while in detention. Biko’s funeral was attended by about 20 000 people. Partly
in response to these events, on the morning of 19 October 1977, scores of Black Consciousness activists
were arrested and detained under section 10 of the Internal Security Act.2
In addition to the scores of people detained, about 18 organisations were banned and three
newspapers – The World, Weekend World and Pro Veritate – were also ‘banned’. Journalists were
detained, including Mr Percy Qoboza, then editor of The World, as well as a former editor of the Sowetan,
Mr Aggrey Klaaste. The Chairman of the Committee of Ten, Dr Nthato Motlana, and some executive
committee members of the Teachers’ Action Committee were also detained.
This day came to be known as Black Wednesday. In South Africa today, 19 October is still
commemorated with the aim of celebrating media freedom and to protest against real or perceived threats
to the freedom of the media.

Censorship is incompatible with South Africa’s present commitment to a society based on a ‘constitutionally protected culture of
openness and democracy and universal human rights for South Africans of all ages, classes and colours’. 3 To prevent a
recurrence of censorship, section 16 of the Constitution explicitly guarantees the right to freedom of expression for everyone.
Section 16(1) states that this right includes:
• freedom of the press and other media
• freedom to receive or impart information or ideas
• freedom of artistic creativity
• academic freedom and freedom of scientific research.

However, section 16 does not protect all forms of expression. Section 16(2) lists several forms of speech explicitly excluded from
the protections contained in section 16(1). Thus, propaganda for war, incitement of imminent violence and advocacy of hatred
that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm are not constitutionally protected
speech. Section 16(2) therefore ‘defines the boundaries beyond which the right to freedom of expression does not extend’,
representing an ‘acknowledgment that certain expression does not deserve constitutional protection because, among other things,
it has the potential to impinge adversely on the dignity of others and cause harm’. 4
The right to freedom of expression is one of a ‘web of mutually supporting rights’ in the Constitution. 5 It is closely related to
freedom of religion, belief and opinion, the right to dignity, the right to freedom of association, the right to vote and to stand for
public office, and the right to assembly. The Constitutional Court has considered the purpose behind the right to freedom of

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 expression in a number of cases.6 At the heart of the guarantee of freedom of expression is the recognition of the importance,
‘both for a democratic society and for individuals personally, of the ability to form and express opinions, whether individually or
collectively, even where those views are controversial’.7
Freedom of expression is therefore important for two reasons. First, freedom of expression contributes to the goal of
establishing a democratic society. Second, freedom of expression constitutes an important aspect of what it is to be human – it
empowers individuals, bestows a certain agency on us, and helps us to make informed and hopefully wise life choices and to
decide for ourselves who we are and how we want to live our lives. O’Regan J referred to these two goals in her judgment in
South African National Defence Union v Minister of Defence, where she held that:

[f]reedom of expression lies at the heart of democracy. It is valuable for many reasons, including its
instrumental function as a guarantor of democracy, its implicit recognition and protection of the moral
agency of individuals in our society and its facilitation of the search for truth by individuals and society
generally. The Constitution recognizes that individuals in our society need to be able to hear, form and
express opinions and views freely on a wide range of matters.8

Given South Africa’s oppressive past, it is not surprising that the Constitutional Court has emphasised the important role freedom
of expression plays in promoting democracy. In S v Mamabolo, for example, Kriegler J held that:

[h]aving regard to our recent past of thought control, censorship and enforced conformity to
governmental theories, freedom of expression – the free and open exchange of ideas – is no less
important than it is in the United States of America. It could actually be contended with much force
that the public interest in the open market-place of ideas is all the more important to us in this country
because our democracy is not yet firmly established and must feel its way.9

In the absence of freedom of expression, individuals will not be able to take part in the democratic process in a free and informed
manner. Democracy only functions well in a society in which it is possible for an individual to change his or her mind. This is
only possible when individuals are free to report on events without fear, to express their opinions and beliefs, and to receive such
communication from others. This view of freedom of expression is commonly related to the search for truth, which is said to be
best facilitated in an ‘open market-place of ideas’.10 Where there is a free competition of ideas, so it is said, the best ideas, or the
truth whatever that may be, will eventually triumph. However, as the Constitutional Court pointed out, ‘[t]hat obviously
presupposes that both the supply and the demand side of the market will be unfettered’. 11 In a deeply unequal society in which
not everyone has equal access to information and in which the voices of some may be privileged and may carry more weight than
others, it is unclear whether such a free marketplace of ideas can ever exist.

CRITICAL THINKING

Is there truly a free marketplace of ideas?

It is often said that in a society in which freedom of expression is vigorously protected, the search for the
truth in the free marketplace of ideas will allow the best ideas to rise to the top and the worst and most
dangerous ideas to be rejected by society. However, consider this: no citizen has access to all the media
sources available in the country, nor to all the books, films and other forms of artistic expression. Nor would
most citizens be able to make their voices heard outside their immediate circle of friends – even in the age
of Twitter and other forms of social media. It can be argued that a person’s level of education, command of
the English language, race, gender and sexual orientation, and relative wealth partly determine to what
extent this person would have the opportunity to make his or her voice heard in the public sphere. Even on
talk radio stations, only those people who have access to a telephone and, in the case of cell phones, to
airtime, will be able to call a phone-in programme. Power, so the argument goes, is unevenly distributed
and even in a democracy in which free speech is guaranteed, the mass media in particular contribute to the
manufacturing of a consensus in which the voices of the marginalised are drowned and the interests of the
powerful are promoted.
In their book, Manufacturing Consent: A Propaganda Model, Herman and Chomsky argue that it is the
function of the mass media to amuse, entertain and inform, ‘and to inculcate individuals with the values,
beliefs, and codes of behaviour that will integrate them into the institutional structures of the larger society’.
12 To fulfil this role requires systematic propaganda. They continue:

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 In countries where the levers of power are in the hands of a state bureaucracy, the monopolistic
control over the media, often supplemented by official censorship, makes it clear that the media
serve the ends of a dominant elite. It is much more difficult to see a propaganda system at work
where the media are private and formal censorship is absent. This is especially true where the
media actively compete, periodically attack and expose corporate and governmental
malfeasance, and aggressively portray themselves as spokesmen for free speech and the
general community interest. What is not evident (and remains undiscussed in the media) is the
limited nature of such critiques, as well as the huge inequality in command of resources, and its
effect both on access to a private media system and on its behavior and performance. A
propaganda model focuses on this inequality of wealth and power and its multilevel effects on
mass-media interests and choices. It traces the routes by which money and power are able to
filter out the news fit to print, marginalize dissent, and allow the government and dominant
private interests to get their messages across to the public. The essential ingredients of our
propaganda model, or set of news ‘filters’, fall under the following headings: (1) the size,
concentrated ownership, owner wealth, and profit orientation of the dominant mass-media firms;
(2) advertising as the primary income source of the mass media; (3) the reliance of the media on
information provided by government, business, and ‘experts’ funded and approved by these
primary sources and agents of power; (4) ‘flak’ as a means of disciplining the media; and (5)
‘anticommunism’ as a national religion and control mechanism. These elements interact with
and reinforce one another. The raw material of news must pass through successive filters,
leaving only the cleansed residue fit to print. They fix the premises of discourse and
interpretation, and the definition of what is newsworthy in the first place, and they explain the
basis and operations of what amount to propaganda campaigns. The elite domination of the
media and marginalization of dissidents that results from the operation of these filters occurs so
naturally that media news people, frequently operating with complete integrity and goodwill, are
able to convince themselves that they choose and interpret the news ‘objectively’ and on the
basis of professional news values. Within the limits of the filter constraints they often are
objective; the constraints are so powerful, and are built into the system in such a fundamental
way, that alternative bases of news choices are hardly imaginable.13

Freedom of expression is not only of pivotal importance for the healthy functioning of a democracy. As pointed out above, the
Constitutional Court has also emphasised a second goal of freedom of expression – to safeguard the moral agency of individuals.
Dealing with this aspect of freedom of expression, the Court held that:

[F]reedom of speech is a sine qua non for every person’s right to realise his or her full potential as a
human being, free from the imposition of heteronomous power. Viewed in that light, the right to
receive others’ expression has more than merely instrumental utility, as a predicate for the addressee’s
meaningful exercise of his or her own rights of free expression. It is also foundational to each
individual’s empowerment to autonomous self-development.14

PAUSE FOR REFLECTION

Greater latitude for political speech

Although the Constitutional Court has accepted that the right to freedom of expression serves both
democracy-promoting and human dignity-reinforcing goals, it has tended to favour political speech over
other forms of expression, especially at the limitation stage of analysis. In Khumalo and Others v Holomisa,
for example, the Court held that when it comes to determining the reasonableness of a publication, ‘greater
latitude is usually allowed in respect of political discussion’.15 In Thint Holdings (Southern Africa) (Pty) Ltd
and Another v National Director of Public Prosecutions, Zuma v National Director of Public Prosecutions,
the Court held that where its jurisprudence touches on the status of political information, ‘it tends towards
permitting greater dissemination rather than the restriction of it’.16

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 14.1.2 Scope and ambit of the right to freedom of expression
Unlike the First Amendment of the United States Constitution,17 section 16 does not protect the right to freedom of speech, but
rather the right to freedom of expression. The term ‘expression’ is much broader than the term ‘speech’. It thus includes not only
words, but also expressive activities such as symbolic acts, for example burning a flag, wearing items of clothing, for example
wearing a party-political T-shirt, and physical gestures, for example raising a fist or gesturing with a finger.
The Constitutional Court confirmed the fact that the term ‘expression’ includes not only words but also expressive activities
in its judgment in Phillips and Another v Director of Public Prosecutions and Others .18 In this case the Court held that a
statutory provision that prohibited any person from appearing or performing naked or semi-naked at a venue that was licensed to
sell alcohol infringed the right to freedom of expression. This was because freedom of expression included freedom of artistic
creativity and the freedom to receive and impart information.19 In principle, a work of art, for example a naked painting of the
President of the country, would also constitute expression and would also be protected by section 16.
Apart from expressive activities, the Constitutional Court has also held that the right to freedom of expression includes not
only information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also includes
those ideas that offend, shock or disturb.20 Even false speech is, in principle, protected. However, false speech may be more
easily limited as justification thereof may be more difficult in terms of the provisions of the limitation clause. 21
Although the Constitutional Court has interpreted the term ‘expression’ broadly, it is important to note that the right to
freedom of expression does not encompass every form of expression. This is because section 16(2) of the Constitution expressly
excludes certain forms of expression from the scope and ambit of the right, namely propaganda for war, incitement of imminent
violence and advocacy of hatred that is based on one or other of the listed grounds, namely race, ethnicity, gender or religion and
that amounts to ‘incitement to cause harm’. Although the Constitution does not itself ban these forms of expression, it does not
protect these forms of expression because the ‘pluralism and broadmindedness that is central to an open and democratic society’
can be undermined by such forms of speech ‘which seriously threatens democratic pluralism itself’. 22 Section 16(2) recognises
the fact that some forms of expression have the potential to impair the exercise and enjoyment of other important rights, such as
the right to dignity, as well as state interests, such as the pursuit of national unity and reconciliation. 23 The Constitution therefore
recognises that the state has a particular interest in regulating this type of expression:

because of the harm it may pose to the constitutionally mandated objective of building the non-racial
and non-sexist society based on human dignity and the achievement of equality. There is accordingly
no bar to the enactment of legislation that prohibits such expression. Any regulation of expression that
falls within the categories enumerated in section 16(2) would not be a limitation of the right in
section 16.24

We will discuss these provisions in more detail below with specific reference to the question of hate speech.
While the forms of expression listed in section 16(2) of the Constitution are not protected by the right to freedom of
expression guaranteed in section 16(1), the Constitutional Court has held that all other forms of expression are protected. This
means that any restrictions that are imposed by the state, as well as, where appropriate, private institutions, on any form of
expression that falls outside section 16(2) will amount to an infringement of the right to freedom of expression. It will
accordingly have to be justified in terms of the limitation clause if the limitation was imposed in terms of a law of general
application.
In Laugh It Off Promotions CC v South African Breweries International (Finance) BV t/a Sabmark International and Another
, for example, the Constitutional Court held that:

[w]e are obliged to delineate the bounds of the constitutional guarantee of free expression generously.
Section 16 is in two parts: the first subsection sets out expression protected under the Constitution. It
indeed has an expansive reach which encompasses freedom of the press and other media, freedom to
receive or impart information or ideas, freedom of artistic creativity, academic freedom and freedom
of scientific research. The second part contains three categories of expression which are expressly
excluded from constitutional protection. It follows clearly that unless an expressive act is excluded by
s 16(2) it is protected expression. Plainly, the right to free expression in our Constitution is neither
paramount over other guaranteed rights nor limitless. As Kriegler K in S v Mamabolo puts it: ‘With us
it is not a pre-eminent freedom ranking above all others. It is not even an unqualified right. In
appropriate circumstances authorised by the Constitution itself, a law of general application may limit
freedom of expression.’ (our emphasis) 25

An important consequence of this approach is that section 16(1) of the Constitution includes certain forms of expression that are

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 often excluded in other jurisdictions, such as pornography, child pornography and commercial speech. 26 Although these forms of
expression are included in section 16(1), the Constitutional Court attaches less weight to them and has found in specific cases that
they are easily outweighed by countervailing interests, such as the rights of women and children. Instead of determining the
weight that should be attached to a particular form of expression at the first stage of the two-stage limitation analysis, therefore,
the Court carries this task out at the second stage.
This approach is clearly illustrated in the Constitutional Court’s judgment in De Reuck v Director of Public Prosecutions
(Witwatersrand Local Division) and Others.27 Mr De Reuck, who was a film producer, was found in possession of child
pornography and was charged in the regional magistrates’ court with contravening section 27(1) of the Film and Publications Act.
28 This section provided that a person would be guilty of an offence if he or she created, produced, imported or possessed any
publication or film which contains child pornography. Section 1 of the Act defined child pornography as including any image,
real or simulated, however created, depicting a person who is or who is shown as being under the age of 18 years, engaged in
sexual conduct or a display of genitals which amounts to sexual exploitation, or participating in, or assisting another person to
engage in sexual conduct which amounts to sexual exploitation or degradation of children.
The Constitutional Court dismissed an appeal of Mr De Reuck and found that section 27(1) of the Film and Publications Act
was constitutionally valid. In arriving at this conclusion, the Court explained that it first had to decide whether section 27(1) of
the Act infringed section 16(1) of the Constitution and if it did, whether that infringement was reasonable and justifiable in an
open and democratic society based on human dignity, equality and freedom. 29 In so far as the first issue was concerned, the
NDPP argued that section 27(1) of the Act did not infringe the right to freedom of expression because child pornography, as
defined in the Act, could not be classified as expression, but rather as a form of unprotected speech. This is because, the NDPP
argued further, child pornography does not serve any of the values that underlie the right, namely truth seeking, free political
activity and self-fulfilment.30
Although child pornography was classified as unprotected speech in other jurisdictions such as the United States, the
Constitutional Court held that the same approach could not be adopted in South Africa. This is because in South Africa all forms
of expression except for those listed in section 16(2) are protected by section 16(1). Child pornography, therefore, did fall into the
scope and ambit of the right to freedom of expression. The constitutional validity of section 27(1) of the Act had to be decided
not at the first stage of the two-stage limitation analysis, but rather at the second stage, namely the limitation stage. 31
After setting out these principles, the Constitutional Court turned to consider whether section 27(1) of the Film and
Publications Act was a reasonable and justifiable limitation of the right to freedom of expression. The Constitutional Court found
that it was for the following reasons:
• First, the limitation of the right to freedom of expression by prohibiting the possession of child pornography was not
particularly serious. This is because child pornography is a form of expression that has very little value, it is found on the
periphery of the right and is a form of expression that is not protected as part of the freedom of expression in many
democratic societies.32
• Second, the purpose of section 27(1) of the Film and Publications Act was extremely important. This is because it was aimed
at curbing child pornography which not only undermines the dignity of all children, but is also harmful to those children who
are used in its production. In addition, child pornography can be used to groom children for sex, to reinforce the belief that
sex with children is normal and to fuel the fantasies of paedophiles before they commit acts of abuse. It is regarded as evil in
all democratic societies.33
• Third, while section 27(1) of the Film and Publications Act did not create a defence for researchers and documentary film
makers who possess child pornography as ‘raw material’ for their legitimate academic or documentary projects, section 22 of
the Act created a process in terms of which a person who wishes to possess or otherwise deal with child pornography could
apply to an executive committee of the Film and Publications Board to do so. This meant that section 27(1) did not impose a
blanket prohibition on the possession of child pornography and could not, therefore, be described as overbroad. 34

CRITICAL THINKING

Can the findings in the De Reuck case be applied to legislation that limits other forms
of pornographic expression?
In the De Reuck judgment, the Constitutional Court found that child pornography had little value. Taking
into account the fact that freedom of expression was guaranteed to help secure democracy and to protect
the moral agency of individuals, there was clearly little or no link between the production, possession or
consumption of child pornography and the promotion of these goals.
However, it has been argued that there is a clear distinction between child pornography – which harms

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 children – and other forms of pornography produced and consumed by consenting adults. Adult
pornography, so it is argued, can play an important role in protecting the moral agency of individuals who
can be empowered by pornography to make important life choices about their true sexual orientation. For
example, in the United States context, Lucas 35 argues in favour of the value of specifically gay
pornography for gay men struggling with their sexual identities as ‘gay porn can act to liberate as well as
educate a historically closeted segment of society’ and ‘can validate homosexuality and create community.
It can be an outlet, perhaps the only outlet, for one’s desires – desires that are generally suppressed if not
condemned by society as a whole’.36 It might therefore not be possible to apply the findings in the De
Reuck case to legislation that limits other forms of pornographic expression because the harm, if any, of
adult pornography would be far more difficult to quantify or prove. Also, for some segments of society at
least, it might play an important educative and liberating role.

14.1.3 Freedom of the press and other media

14.1.3.1 Introduction
Apart from the general right to freedom of expression, section 16(1) of the Constitution lists certain specific forms of protected
expression. These are:

( a) freedom of the press and other media;

( b) freedom to receive or impart information or ideas;
(c) freedom of artistic creativity; and
( d) academic freedom and freedom of scientific research.

Of these four specific forms of protected expression, the right to freedom of the press and other media has received the most
attention from the courts and commentators. For the purposes of this book, therefore, we are going to focus on this aspect of the
right only.

14.1.3.2 The role of the press

The mere fact that the right to freedom of the press and other media has been expressly included in section 16(1) of the
Constitution confirms the important role that the press and other media play in a democratic society. The Constitutional Court has
referred to this role in a number of cases.37 In these cases, the Court has held that the right of every citizen to receive information
and ideas depends largely on the freedom of the press and other media. The press and other media, therefore, are key agents in
ensuring that this aspect of the right to freedom of expression is respected. Freedom of the media also plays a pivotal role in
securing the enjoyment of other rights. This is in line with the Constitutional Court’s assertion (discussed above) that freedom of
expression forms part of a web of mutually supporting rights that underpin democracy.
Apart from ensuring that the right to receive information and ideas is respected, the Constitutional Court has also held that
the press and other media play a key role in ensuring that government is open, responsive and accountable to the people. This is
because:

[i]t is the function of the press and other media to ferret out corruption, dishonesty and graft wherever
it may occur and to expose its perpetrators. The press must reveal dishonest mal- and inept
administration. … It must advance the communication between the governed and those who govern.38

In light of these responsibilities, it is important to note that the press and other media are not simply bearers of the right to
freedom of expression, but are also bearers of constitutional obligations with respect to freedom of expression. In Khumalo, the
Constitutional Court summed up the rights and obligations of the media as follows:

In a democratic society, then, the mass media play a role of undeniable importance. They bear an
obligation to provide citizens both with information and with a platform for the exchange of ideas
which is crucial to the development of a democratic culture. As primary agents of the dissemination of
information and ideas, they are, inevitably, extremely powerful institutions in a democracy and have a
constitutional duty to act with vigour, courage, integrity and responsibility. The manner in which the
media carry out their constitutional mandate will have a significant impact on the development of our
democratic society. If the media are scrupulous and reliable in the performance of their constitutional
obligations, they will invigorate and strengthen our fledgling democracy. If they vacillate in the

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 performance of their duties, the constitutional goals will be imperilled. The Constitution thus asserts
and protects the media in the performance of their obligations to the broader society, principally
through the provisions of section 16.39

PAUSE FOR REFLECTION

The impact of the Secrecy Bill on the role of the press and other media in a democracy
It can be argued that the role of the press and other media ‘to ferret out corruption, dishonesty and graft
wherever it may occur and to expose its perpetrators’ 40 is threatened by legislative attempts to limit the
free flow of information and to prevent the media from reporting on matters of public concern. In this regard,
the adoption of the Protection of State Information Bill 41 (‘the Secrecy Bill’) by Parliament has been heavily
criticised by its opponents. This so-called Secrecy Bill was sent back to Parliament by President Jacob
Zuma in September 2013 to correct potential unconstitutional aspects of the Bill.
The Secrecy Bill is ostensibly aimed at protecting the national security of the country by empowering
members of the Cabinet, the various security services, including the police and the military, and those
bodies overseeing the security services to classify information as confidential, secret or top secret.42 The
Minister of State Security is further empowered to grant the power to classify documents to any organ of
state or part thereof although this power cannot be granted to municipalities.43
This means that the Minister of State Security has wide powers to authorise other bodies – after
approval by Parliament – to classify information. If the Minister (and the majority party in Parliament) wishes
to, he or she could empower any department of state or administration in the national or provincial sphere
of government, any other functionary or institution exercising a public power or performing a public function
in terms of any legislation and any owner of a facility or installation declared as a National Key Point to
classify information.44
Although information can only be classified to protect ‘national security’, the Bill defines national
security in a manner that is indeterminate and open-ended. The Bill thus states that ‘national security
includes’, but is not limited to, threats against the Republic based on terrorism and sabotage and acts
directed at undermining the capacity of the Republic to respond to the use of, or the threat of the use of,
force and the carrying out of the Republic’s responsibilities to any foreign country.45
Because the definition is open-ended, it is conceivable that an authorised classifier could interpret
national security in a far broader manner than the examples mentioned in the definition of national security
contained in the Bill. This means that the Secrecy Bill potentially empowers many people at various levels
of government (and many organs of state) to censor information in the name of protecting national security.
This therefore potentially imposes drastic limits on the right to freedom of expression and the right of
access to information. It does so in two interrelated but distinct ways:
• First, when information is classified, anyone who leaks or holds or publishes the information commits a
criminal offence.46 This means that whistle-blowers in possession of incriminating evidence of
maladministration, ‘dirty tricks’ by members of the security forces, evidence of corruption or of criminal
activities will think twice before leaking such information to the media for fear of being sent to jail for up
to 25 years.47
• Second, journalists and editors will be fearful of receiving any such information and of publishing it for
fear of being sent to jail for long periods of time. The potential ‘chilling effect’ of this law is therefore
real.

To pass constitutional muster, it will have to be shown that these restrictions on the right to freedom of
expression and information are justifiable. It will have to be demonstrated that the law struck the
appropriate balance between the need to protect national security, on the one hand, and the need to
protect the rights of citizens to the free flow of information, on the other hand. It will also have to be shown
whether less restrictive means could not have been used to protect national security in an appropriate
manner.
Section 8 of the Bill purports to limit the potentially broad scope of the Bill by stating that classification
of state information is justifiable only when it is ‘necessary to protect national security’. It states further that
classification may not under any circumstances be used to conceal corruption or any other unlawful act, to
avoid criticism, or to prevent embarrassment to a person, organisation or organ of state or agency. The

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 section also includes other guidelines which, if meticulously and honestly followed by the classifier, would
substantially narrow the scope of the Bill.
Section 45 of the Bill criminalises the wrongful classification of information while section 46 further
determines that a ‘head of an organ of state or an official of such organ of state who wilfully or in a grossly
negligent manner fails to comply with the provisions’ of the Bill could be sentenced to two years’
imprisonment. These safeguards would go some way to deter abuse of the Bill, but only if an independent
body existed to investigate and to prosecute those who wrongfully classify documents to hide corruption or
avoid embarrassment.
Those who defend the constitutionality of the Bill will rely heavily on section 41 of the Bill to argue that it
limits the rights no more than is necessary. This is so because the section provides a defence to those
charged and prosecuted for disclosing even wrongly classified or corruptly classified information in a limited
number of cases. This includes cases where the disclosure of the information is authorised by other
legislation and where the classified information reveals criminal activity, including any criminal activity in
terms of section 45 of the Bill.
Section 41 indeed provides an important safeguard for potential whistle-blowers. Whistle-blowers and
journalists who are exceedingly brave (or just plain stupid or reckless about their own freedom and
well-being) may well be prepared to take their chances in the hope that it could be shown that the leaked or
published classified information in fact reveals criminal activity.
However, how this defence would work in practice is unclear. In terms of our Constitution, every person
is presumed to be innocent by a court of law until proven guilty. It is therefore unclear whether this defence
in section 41 would be available to a whistle-blower or a journalist who receives or publishes classified
information that reveals criminal activity if those involved in the criminal activity have not actually been
convicted of a crime. How will a whistle-blower or a journalist be able to convince a court that the
information reveals criminal activity if the criminal activity has not been successfully prosecuted? And how
will the criminal activity be successfully prosecuted when the information revealing that criminal activity
remains classified? This defence may therefore well turn out to be illusory.
The Secrecy Bill also provides for a Review Panel to review classifications of information but the panel
is appointed by the majority party in Parliament and is therefore not independent.48 A person can appeal
the classification of information, but as it is a criminal offence to be in possession of classified documents, it
is unclear how the person can appeal the classification of documents he or she is not allowed to know
about and that the person is not allowed to have in his or her possession.49

Although the press and media have an important role to fulfil in a democracy, this does not mean that the press and other media
have a different and superior status in the Constitution. This is because the right to a free press and other media is designed to
serve the interests that all citizens have in the free flow of information and not the specific interests of the press and other media.
When the state infringes the right to a free press and other media, therefore, it infringes the rights of all citizens and not merely
the rights of the press itself.50

14.1.3.3 Access to and broadcasting of court proceedings

Courts often consider matters of public importance. Courts often also consider matters that are of interest to the public without
being matters of public interest. The extent to which the press and other media may access and broadcast such court proceedings
has therefore become contested. The courts considered this vexing question in South African Broadcasting Corporation Ltd v
National Director of Public Prosecutions and Others.51 The case dealt with a request by the SABC for permission to broadcast
live on radio and television a high-profile criminal appeal with potential political consequences being argued before the Supreme
Court of Appeal (SCA). The case dealt with an appeal of Mr Schabir Shaik who had been convicted on several counts of
corruption in respect of payments he had made to the then Deputy-President of the Republic, Mr Jacob Zuma.
The SABC based its application on the grounds that the live radio and television broadcasts were necessary to enable it to
fulfil its constitutional and statutory obligations to inform the public and that the broadcasts would play an important educational
role given the intense public interest the case had generated. In addition, the SABC also argued that the broadcasts would not
disrupt the conduct of the hearing.
A majority of the Constitutional Court dismissed these claims. The Court explained that while the accused’s right to a fair
trial and the SABC’s right to freedom of expression were obviously important, the key issue in the case was not about those
rights, but rather about the public’s right to be informed about the manner in which one of the three arms of government, namely
the judiciary, operates.52
The public’s right to be informed about the manner in which the judiciary operates, the Constitutional Court explained,

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 means that courts should be open and accessible. This principle of open justice is important not only because it promotes the
public’s right to be informed about the manner in which the courts operate. It is important also because it can prevent the courts
from abusing their power by, for example, following unfair procedures. Open justice is, accordingly, an intrinsic part of the right
to a fair trial and should be welcomed by the courts.53
However, despite the demands for open justice (linking the right of freedom of expression to the right to a fair trial and to the
need to safeguard an independent judiciary), the Constitutional Court explained that it would not interfere with the manner in
which the SCA exercised its discretion simply because it disagreed with the SCA. Instead, it would only interfere with the
manner in which the SCA exercised its discretion if the SCA had abused its discretion by failing to act judicially, or by applying
the wrong principles of law, or by misdirecting itself on the material facts. 54 The Court therefore declined to interfere with the
decision of the SCA ‘that live or recorded sound broadcasting should not be allowed unless the Court is satisfied that justice will
not be inhibited’.55 This decision struck a proportionate balance between the SABC’s right to freedom of expression and the
SCA’s obligation to ensure that appeal proceedings before it are fair.56
The Court affirmed the notion of open justice in subsequent cases. Thus, in Independent Newspapers (Pty) Ltd v Minister for
Intelligence Services (Freedom of Expression Institute as Amicus Curiae) In re: Masetlha v President of the Republic of South
Africa and Another, the Constitutional Court affirmed the constitutional imperative of dispensing justice in the open. 57 It stated
further:

This systemic requirement of openness in our society flows from the very founding values of our
Constitution, which enjoin our society to establish democratic government under the sway of
constitutional supremacy and the rule of law in order, amongst other things, to ensure transparency,
accountability and responsiveness in the way courts and all organs of state function. From the right to
open justice flows the media’s right to gain access to, observe and report on, the administration of
justice and the right to have access to papers and written arguments which are an integral part of
court proceedings subject to such limitations as may be warranted on a case-by-case basis in order to
ensure a fair trial.58

However, the Court found that a restriction placed on public access to court proceedings is not only permissible as an exceptional
occurrence 59 as the cluster of rights that guarantees open justice is not absolute. These rights may be limited by a law of general
application provided the limitation is reasonable and justifiable: 60

There may be instances where the interests of justice in a court hearing dictate that oral evidence of a
minor or of certain classes of rape survivors or confidential material related to police crime
investigation methods or to national security be heard in camera. In each case, the court will have to
weigh the competing rights or interests carefully with the view to ensuring that the limitation it places
on open justice is properly tailored and proportionate to the end it seeks to attain. In the end, the
contours of our constitutional rights are shaped by the justifiable limitation that the context presents
and the law permits.61

14.1.3.4 Access to divorce proceedings

The Constitutional Court discussed the extent to which the press and other media may access and report on divorce proceedings
in Johncom Media Investments Limited v M and Others 62 in which the constitutionality of section 12 of the Divorce Act 63 was
attacked. This kind of case presents difficult issues about the tension between the right to privacy and dignity of individuals
involved in often traumatic divorce proceedings and especially the need to protect the best interests of the child on the one hand,
and the right to freedom of the press on the other.
To protect the dignity and privacy of divorcing parties and their children, section 12 provided that no person could publish
any information that came to light during a divorce action except for the names of the parties, the fact that they were getting
divorced and the judgment of the divorce court.
The Constitutional Court found that section 12 did not fall within any of the exceptions set out in section 16(2) of the
Constitution and that the section therefore infringed on the freedom of the media. The key question that had to be answered,
therefore, was whether the infringement satisfied the requirements of the limitation clause. 64 The requirements of the limitation
clause were not satisfied for two reasons:
• First, section 12 was too broad. This is because it prohibited the publication of any information that came to light during a
divorce action even if that information did not affect the dignity and privacy of the divorcing parties and their children and
did not, therefore, require protection. It was also contrary to the principle of open justice. 65
• Second, section 12 did not achieve its purpose. This is because even though it prohibited the publication of any information

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 that came to light during a divorce action, it did not prohibit the publication of the names of the divorcing parties and their
children. A much more effective method of protecting the dignity and privacy of the divorcing parties and their children was
simply to prohibit the publication of their identities.66

After finding that section 12 of the Divorce Act was unconstitutional and invalid, the Constitutional Court turned to consider
what would be the most appropriate remedy. In this respect, the Court held that apart from declaring section 12 to be invalid, it
would be appropriate to issue an order prohibiting the publication of the identities of divorcing parties and their children and any
information that could reveal their identities.67

14.1.3.5 Prior restraints

Prior restraints refers to cases where a publication is prohibited or stopped from publishing information or where the law
requires the publication to seek approval from a person or body before it is allowed to publish information. The Constitutional
Court considered the question of when and to what extent Parliament could impose prior restraints on the publication of material
by the press and other media in Print Media South Africa and Another v Minister of Home Affairs and Another .68
In this case, the Constitutional Court found that section 16(2)(a) of the Film and Publications Act was unconstitutional and
invalid on the grounds that it infringed the right to freedom of expression. Section 16(2)( a) of the Act provided that, except for
the publisher of a registered newspaper, any person who intended to ‘create, produce, publish or advertise’ a publication
‘containing sexual conduct which violates or shows disrespect for the right to human dignity of any person, degrades a person, or
constitutes incitement to cause harm’ had to submit that publication to the Film and Publications Board for classification before it
was distributed. Depending on the way in which it was classified by the Film and Publications Board, a publication containing the
sexual conduct referred to in section 16(2)(a) could be banned, distributed subject to certain restrictions or freely distributed. In
addition, the Act also provided that a publisher who failed to submit a publication containing the sexual conduct referred to in
section 16(2)(a) to the Film and Publications Board for classification before publishing it, irrespective of how it would have been
classified, committed a criminal offence and could be sentenced to a fine or imprisonment of up to five years or both.
In declaring this section invalid, the Constitutional Court explained that section 16(2)( a) imposed a system of ‘administrative
prior consent’ for the publication of information on sexual conduct. 69 The Film and Publications Act was aimed at achieving
important goals: to provide consumers with advice, to protect children from exposure to harmful or age-inappropriate material,
and to ban child pornography. While banning child pornography and protecting children from exposure to harmful or
age-inappropriate material were obviously important goals, providing adults with more complete information about a
publication’s content was also important. This is because it enhanced a consumer’s ability to make informed choices about what
he or she consumed or what he or she exposed others to through his or her consumption. 70
However, in this case, the prior constraint limited the right to freedom of expression in a severe fashion. This is because the
system of ‘administrative prior consent’ created by the Act transferred control over the decision to publish material from the
person in whom the right to freedom of expression is vested to an administrative body. 71 The problem with this type of system is
that administrative bodies are much more likely to restrict publications when they have to classify them upfront rather than when
they have to take punitive or restrictive action after publication. In addition, this type of system often leads to delays which may
prevent important information from reaching the public or which may result in information being redundant by the time it is
published.72
After examining the importance of the purpose of the limitation and the nature and extent of the limitation, the Constitutional
Court turned to balance all the competing factors. In this respect, the Court held that the extent of the limitation appeared to
outweigh the importance of the purpose of the limitation. This is because the system of ‘administrative prior consent’ would
inevitably delay or restrict the flow of information that people were lawfully entitled to receive. 73 This would undermine the
autonomy of the individual to formulate an opinion about information received which would in turn undermine the moral agency
of the individual. The limitation would only satisfy the requirements of the limitation clause, therefore, if there was no other less
restrictive means of achieving the goals of the Act. 74 Unfortunately for the Minister and the Film and Publications Board, the
Constitutional Court went on to conclude, there were other less restrictive means of achieving the goals of the Act such as
applying for an interdict or voluntarily submitting the publication for classification. 75

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 PAUSE FOR REFLECTION

Applying for an interdict to prevent the publication of a story

The members of the South African Press Council (which include almost all the print media in South Africa)
voluntarily subject themselves to a form of independent self-regulation through the Press Ombudsman. The
Ombudsman aims to provide impartial, expeditious and cost-effective adjudication to settle disputes
between newspapers and magazines, on the one hand, and members of the public, on the other, over the
editorial content of publications. The Council has adopted the South African Press Code to guide journalists
in their daily practice of gathering and distributing news and opinion and to guide the work of the
Ombudsman. Section 2.5 of the Code states that:

A publication shall seek the views of the subject of critical reportage in advance of publication;
provided that this need not be done where the publication has reasonable grounds for believing
that by doing so it would be prevented from publishing the report or where evidence might be
destroyed or sources intimidated. Reasonable time should be afforded the subject for a
response. If the publication is unable to obtain such comment, this shall be stated in the report.

This provision aims to protect newspapers and magazines from attempts to muzzle them while protecting
the rights of people on whom the press reports in a critical fashion.
On occasion, courts have granted urgent interdicts against newspapers that were about to publish
news stories critical of individuals. This occurred after the newspaper had sought comment from the
affected person and that person had then approached the court to stop the publication of the critical story.
The granting of such an interdict is a classic form of prior restraint. However, in the light of the
Constitutional Court judgment in Print Media South Africa, it will arguably be difficult for an affected party to
convince a court to grant such an interim interdict. The Press Code nevertheless seeks to protect
newspapers from such forms of prior restraint by waiving the requirement to seek comment from the
subject of critical reportage in limited circumstances.

14.1.3.6 The regulation of broadcasting

As broadcasting is a particularly powerful form of expression and as there are limited frequencies available in some areas and in
respect of some forms of broadcasting, control is necessary to ensure that diverse views are broadcast. Section 192 of the
Constitution thus provides that ‘[n]ational legislation must establish an independent authority to regulate broadcasting in the
public interest, and to ensure fairness and diversity of views broadly representing South African society’. The independent
authority referred to in section 192 is the Independent Communications Authority of South Africa (ICASA). 76
In addition to the regulatory function of ICASA, the Broadcasting Complaints Commission of South Africa (BCCSA) is
tasked with ensuring that broadcasting is in accordance with the Broadcasting Code. The BBCSA can be called on to investigate
broadcasts that are not in accordance with the provisions of the Code. 77

14.1.4 Hate speech

14.1.4.1 Introduction
The Constitution is founded on the principles of dignity, equal worth and freedom, and these principles should be given effect to.
For this reason, certain forms of expression do not deserve constitutional protection since they have the potential to impugn the
dignity of others and to cause harm.78 As we pointed out above, section 16(2) of the Constitution deals with expression that is
specifically excluded from the protection of the right to freedom of expression. While section 16(2)( a) and (b) are concerned with
‘propaganda for war’ and ‘incitement of imminent violence’, section 16(2)(c) is concerned with what is commonly referred to as
‘hate speech’. Out of these three forms of excluded expression, hate speech has received the most attention from the courts and
commentators. For the purposes of this book, therefore, we are going to focus on this form of excluded expression only.
Hate speech at a social level is said to be prohibited for one or more of the following four reasons:

1. To prevent disruption to public order and social peace stemming from retaliation by victims.
2. To prevent psychological harm to targeted groups that would effectively impair their ability to
positively participate in the community and contribute to society.
3. To prevent both visible exclusion of minority groups that would deny them equal opportunities

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 and benefits of … society and invisibly exclude their acceptance as equals.
4. To prevent social conflagration and political disintegration.79

14.1.4.2 The scope and extent of hate speech

The exact scope and content of hate speech is contested, but the jurisprudence confirms that it would be impossible to judge
whether a specific statement constitutes hate speech without reference to the broader context within which the statement was
made. As we noted above, section 16(2)(c) excludes certain forms of hate speech from constitutional protection. The clause
excludes advocacy of hatred based on race, ethnicity, gender and religion that amounts to the incitement to cause harm from the
protection of the right to freedom of expression. The list of grounds is a closed list which means that other forms of hate speech
such as homophobic and xenophobic speech are not included under section 16(2) and do not automatically fall outside the
protection of the freedom of expression guarantee contained in section 16(1). Before an expression can be considered as hate
speech, the expression must constitute advocacy of hatred on one of the listed grounds and the advocacy must constitute the
incitement to cause harm. Therefore, irrespective of how offensive advocacy of hatred may be, it does not qualify to be classified
as hate speech unless the second element, namely incitement to cause harm, is present. 80
It is important to remember that section 16(2) is definitional in that it merely defines certain forms of speech to which the
protection of the right to freedom of expression does not extend. The Constitution does not prohibit any speech. Legislation may
be enacted that prohibits the forms of unprotected speech. A general prohibition on hate speech was enacted in section 10 of the
Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA).81 The grounds in the PEPUDA are not confined
to the three grounds listed in section 16(2).82 Section 10 (read with section 12) does indeed place limits on several kinds of
speech. This section provides that:

no person may publish, propagate, advocate or communicate words based on one or more of the
prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear
intention to:
( a) be hurtful;
( b) be harmful or incite harm;
(c) promote or propagate hatred.

The prohibition on hate speech in the PEPUDA is more far reaching than the description of hate speech in section 16(2)(c) of
the Constitution. As the constitutionality of this section has not yet been challenged, we will assume that the extended prohibition
of hate speech in section 10 of the PEPUDA is constitutionally valid. The prohibition is far reaching as it relates to words based
on all prohibited grounds, not only on the basis of race, ethnicity, gender and religion as is the case in section 16(2)( c). These
grounds include race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability,
religion, conscience, belief, culture, language and birth, or any other similar ground such as HIV status. It is important to note that
speech will not constitute hate speech merely because it is offensive or because it offends a certain section of the population. The
threshold test is that the speech must be aimed at one of the defined groups. Offending speech targeting all lawyers or all
journalists would therefore never constitute hate speech because it does not target a person on the basis of one of the listed or
associated grounds.
Once it is determined that the speech targets a person based on one of the listed or similar grounds, the question will be asked
whether the speech could reasonably be construed to demonstrate a clear intention to be hurtful, harmful or to propagate hatred.
An Equality Court need not find that the speaker actually had the intention to be hurtful or to incite harm. The question is whether
the words of the speaker could reasonably be construed thus. The subjective question (the intention of the speaker) must be
determined by using an objective test (what a reasonable person would have thought). 83 To decide this question, we would need
to look at who the speaker is, in what context the words were uttered and, given this context, how a reasonable person would have
interpreted the words. We would assume that such a reasonable person would be someone who is imbued with the values of the
Constitution and who understands the importance of freedom of speech and robust debate in a democracy. He or she will not be
hypersensitive and will not assume that the speaker had the intention to be hurtful or to incite harm merely because the words
may have offended the person targeted. It would not be sufficient to show that members of the targeted group were hurt by the
speech or believed that the speech incited harm against them. What is required is to determine whether a reasonable person could
have believed that the speaker had the intention to hurt the targeted group or to incite harm against that group.
In Sonke Gender Justice Network v Malema, Mr Julius Malema was accused of hate speech in contravention of section 10 of
the PEPUDA for stating the following:

When a woman didn’t enjoy it, she leaves early in the morning. Those who had a nice time will wait
until the sun comes out, request breakfast and taxi money. In the morning that lady requested
breakfast and taxi money. You don’t ask for taxi money from someone who has raped you.84

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 The Court in this case held that the quoted words constituted hate speech as per the definitions found in the framework of the
PEPUDA. The Court held that the utterances could reasonably be construed as hurtful, harmful and demeaning to women. 85 The
utterances were made in general terms and then applied to the complainant in the Zuma rape trial. This judgment has been
criticised for not engaging in a serious manner with the requirement that a reasonable person needed to have construed Mr
Malema as having the intention to be hurtful to a class of people, namely women:

Given the fact that these – admittedly sexist – statements were made by Malema in defence of
President Zuma (and in response to a question at an election rally) and came after Zuma was acquitted
on the rape charge, I am far from convinced that a reasonable person would have construed his
statements as intending to be hurtful to the rape accused or to women in general. One may well argue
that a reasonable person would have concluded that Malema was motivated not by hate but by
disbelief about the charges of rape levelled against President Zuma – a disbelief actually endorsed by
the court who acquitted Zuma of the charge of rape. As the expert witnesses pointed out, such
utterances were gender insensitive and trivialised rape. It perpetuated male sexual entitlement and was
obviously sexist and would have upset many South Africans – including the survivors of rape. However
… Malema’s words could reasonably be construed to be intended to make the point that the judgment
of the High Court, which acquitted Zuma’s of rape, was the correct judgment.86

Mr Julius Malema faced another hate speech charge in Afri-Forum and Another v Malema and Others.87 In this case the Equality
Court considered whether Mr Malema had engaged in hate speech when he sang the song, ‘ Awudubula (i) bhulu … Dubula
amabhunu baya raypha’ (translated as ‘Shoot the Boer/farmer … Shoot the Boers/farmers they are rapists/robbers’). The Court
found that Mr Malema had engaged in hate speech and ordered that both Mr Malema and the ANC be interdicted and restrained
from singing the song known as Dubula Ibhunu at any public or private meeting held or conducted by them. 88 In coming to this
decision, the Court relied on the SCA judgment in Le Roux and Others v Dey to cast light on the requirement that the words
should reasonably have been construed as having the intention to be hateful: 89

It may be accepted that the reasonable person must be contextualised and that one is not concerned
with a purely abstract exercise. One must have regard to the nature of the audience. In this case the
main target was the school children at the particular school, but it also included at least teachers.90

The Court thus argued that some South Africans, who would largely, but not exclusively, be black, would not reasonably construe
the song to have had the intention of being hurtful to whites. However, others, who would largely, but not exclusively, be white,
would indeed do so. The Court stated:

each meaning must be considered and be accepted as a meaning … . If the words mean different things
to different portions of society then each meaning, for the reasonable listener in each portion of society,
must be considered as being the appropriate meaning.91

In this way, the judgment avoided dealing with a difficult legal problem, namely that the song would be viewed differently
depending on the audience.

CRITICAL THINKING

A critique of the Afri-Forum judgment

The judgment in Afri-Forum was criticised for the manner in which it dealt with race and racial politics in
South Africa. De Vos argued:

Judge Lamont divided South Africa into the majority and a minority and suggested that
minorities (defined as white South Africans or as white Afrikaners) are therefore in particular
need of protection from words that could be construed as having the intention to be hurtful to
that minority. Hinting that white people might well in the future be in danger of facing a
genocide, Judge Lamont stated that:

It must not however be forgotten that minority groups are particularly vulnerable. It is
precisely the individuals who are members of such minorities who are vulnerable to
discriminatory treatment and who in a very special sense must look to the Bill of Rights for

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 protection. The Court has a clear duty to come to the assistance of such affected people.

Minorities have no legislative or executive powers and are compelled to approach the Court
to protect their rights. They are particularly at risk due to the expense involved in such
approaches. The fact that they are minorities and experience such difficulties frequently
results in them being driven to protect their identity by invoking and enforcing within their
group, customs practices and conventions which are believed to be appropriate. In addition,
they are fragile in that they are readily assumed by the mass and lose their identity. A Court
which hears a matter must, while balancing the rights in question, take into account in the
construction of what hate speech is the fact that it is directed at a minority. 92

This means that religious and sexual minorities, say, might be entitled to special protection in
terms of this Act and that a court should take note of the sensibilities of such groups when they
judge whether a reasonable homosexual or a reasonable Muslim would have viewed a specific
communication as having the intention to be hurtful to them as Muslims or as homosexuals.
Almost any cartoon that depicts the prophet Mohammed, say, might therefore constitute hate
speech. Statements by a pastor that homosexuals are perverts that will burn in hell would also,
most probably, constitute hate speech if this line of reasoning is followed. I am also fearful that if
I were to call devout Christians “bigots” because of their views on homosexuality, I might be
found to have had the intention (judged by these religious fundamentalists) to be hurtful to them
and hence that I am guilty of hate speech.

This rather essentialistic and simplistic division of South Africans into different race groups
could be viewed as problematic. Instead of dealing with South Africans as South Africans and
instead of demonstrating a blindness to race (as required by opponents of affirmative action),
the court relied on racial assumptions and stereotypes to justify its finding. One would assume
that all the critics of race-based affirmative action would be quick to condemn this judgment on
the basis that it invokes apartheid era race categories and assumes that one would have a
different reaction to words depending on one’s race and/or the language that one speaks. Surely
the principled DA supporters who complain about affirmative action will have to reject this
judgment because of its purported unholy valorisation of race? 93

Finally, it is important to note that the prohibition of hate speech in section 10(1) of the PEPUDA overlaps with the prohibition of
the publication of information that unfairly discriminates in section 12 (the proviso to this section also applies to section 10).
Section 12 of the PEPUDA provides that:

[n]o person may:

(a) disseminate or broadcast any information;
(b) publish or display any advertisement or notice,

that could reasonably be construed or reasonably be understood to demonstrate a clear intention to

unfairly discriminate against any person: Provided that bona fide engagement in artistic creativity,
academic and scientific inquiry, fair and accurate reporting in the public interest or publication of any
information, advertisement or notice in accordance with section 16 of the Constitution, is not
precluded by this section.

14.2 The rights to freedom of assembly, demonstration, picket and

petition

14.2.1 Introduction
One of the most powerful ways in which individuals can express their views on political and social issues is by coming together
and protesting peacefully. The freedom to assemble, demonstrate, picket and petition therefore forms an integral part of the
democratic rights of citizens in a democracy. When a large crowd of people assemble in the street to express their views on issues
of the day, this can be viewed as a form of participatory democracy.

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 In the apartheid era, rallies and demonstrations protesting against the policies of the apartheid regime or aimed at
popularising the ideas of anti-apartheid organisations such as the United Democratic Front (UDF), Azanian People’s Organisation
(AZAPO), the African National Congress (ANC) or the Pan Africanist Congress (PAC) were often banned by the government. In
one of the most famous incidents early in September 1989, peaceful protest marchers in support of liberation, bearing placards
proclaiming ‘the people shall govern’ were sprayed with purple dye by the police. A spirited activist seized the initiative and the
nozzle from the police and painted Cape Town purple, while an inspired graffitist put the writing on the wall: ‘The purple shall
govern!’ 94
In post-apartheid South Africa, the right to assemble and demonstrate cannot legally be curtailed in the same manner. This is
because section 17 of the Constitution guarantees the right to freedom of assembly, demonstration, picket and petition. This
section provides that ‘[e]veryone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present
petitions’.
Democracy entails more than the right to vote in regular free and fair elections. As we have seen in the first part of this book,
democracy also requires citizens actively to participate in public affairs. For this reason, the right to freedom of assembly plays an
important role in a democratic society. Assemblies, demonstrations, pickets and petitions allow groups, whose influence on
political parties or the political process would otherwise be minimal, to raise issues that are important to them, to draw attention
to these issues and to engage with their fellow citizens and representatives about these issues.
Citizens also use such events to enforce their rights outside the formal legal process because they can place pressure on the
legislature and the executive to ensure that these bodies do not infringe on the rights of individuals. Such events can also help
civil society groups to build support for their causes and to mobilise voters in order to ensure more responsive and accountable
government from those who were elected to serve the people. Often, such activities precede or go hand-in-hand with court action.
95

CRITICAL THINKING

Using political mobilisation with litigation to achieve human rights

Berger and Kapczynski discuss the manner in which the Treatment Action Campaign (TAC) used both
social mobilisation and litigation in its struggle to ensure access by all HIV-positive South Africans to
life-saving antiretroviral drugs. They argue that human rights are not always best won or defended in
courtrooms, but often require sustained political mobilisation. This political mobilisation requires the
freedom to assemble and to demonstrate. Without the right to freedom of assembly and to demonstrate, it
would be difficult to mobilise politically or to ensure that battles won through litigation are translated into real
changes in the lives of people. In their discussion of the battle to ensure that all HIV-positive pregnant
women have free access to medication that diminishes the risk of transmitting HIV to their newborn babies,
these authors wrote as follows:

Little has been written about how the case came into being or the impact it has had on the life
options and experiences of people living with and affected by HIV in South Africa. Consider here
three facts: the TAC case was brought only after four years of sustained lobbying and organizing
efforts demanding PMTCT programs in South Africa. The suit itself was framed by carefully
orchestrated advocacy work and mass demonstrations that caused dramatic change in the
government’s policy even during the litigation. Years after the stunning victory in the TAC case,
and despite claims by some that the government ‘quickly implemented the orders of the
Constitutional Court’, reliable estimates indicate that only about thirty percent of women in
South Africa who need medicine to prevent the transmission of HIV to their children are
receiving it. These facts alone demonstrate that to describe the TAC case in terms that focus on
courts or legal texts alone is to miss the true story of the case. That story is less about a
judgment or a doctrine than it is about a movement. More specifically, it is about the power that
an organized movement can have if it makes strategic use of constitutionally entrenched and
justiciable human rights, lays the groundwork necessary to give those abstract guarantees
meaning, and energetically builds broad public support for its cause. TAC did the political and
technical work to make the Constitutional Court’s judgment seem both legally obvious and
morally necessary, and thereby created a precedent that helped bring real improvements in
access to PMTCT services in South Africa, and that was also likely central to the establishment
of a public sector HIV treatment program for the country. But the ultimate promise of the case –
that all women in South Africa have access to quality medicines and services to prevent the
transmission of HIV to their children – still awaits fulfillment. The judgment alone could not

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 guarantee the result that it declared constitutionally required. For that, it needed a movement.
And unfortunately, the Court very likely overestimated the work that the movement in question
could do to implement the Court’s judgment. That too is part of the legacy of the TAC case. In
the end, then, the story of the TAC case is less a story about the power and limits of courts than
it is a story about the power and limits of the Treatment Action Campaign.96

The Constitutional Court highlighted the goals of the right to freedom of assembly in South African Transport and Allied Workers
Union and Another v Garvas and Others (SATAWU) where it stated that:

The right to freedom of assembly is central to our constitutional democracy. It exists primarily to give
a voice to the powerless. This includes groups that do not have political or economic power, and other
vulnerable persons. It provides an outlet for their frustrations. This right will, in many cases, be the
only mechanism available to them to express their legitimate concerns. Indeed, it is one of the principal
means by which ordinary people can meaningfully contribute to the constitutional objective of
advancing human rights and freedoms. This is only too evident from the brutal denial of this right and
all the consequences flowing therefrom under apartheid. In assessing the nature and importance of the
right, we cannot therefore ignore its foundational relevance to the exercise and achievement of all
other rights.97

Apart from promoting participation in political processes, the right to freedom of assembly, demonstration, picket and petition
also fulfils a number of other goals. Perhaps the most important of these is the development of each individual’s unique
personality. This is because our personalities do not develop in isolation. Instead, they develop in the context of groups.
Assemblies for cultural, educational, religious, sport and recreational purposes, therefore, may be as important as assemblies for
political purposes.

PAUSE FOR REFLECTION

To what sort of assemblies does the right to freedom of assembly refer?

Although the right to freedom of assembly exists primarily to give voice to the powerless, section 17 itself
does not expressly restrict the scope and ambit of the right to assemblies that are aimed at promoting
political participation. It may, therefore, also include assemblies that are aimed at promoting cultural,
economic and social activities such as religious, sports and entertainment gatherings.
However, Woolman argues that the scope and ambit of section 17 may plausibly be restricted to those
assemblies that have some connection to the political process. This is because if the right is defined too
widely, it may weaken our commitment to assembly as a form of political participation.98 Of course, if we
agree with this view, the difficulty that will arise is how to determine whether a specific protest has some
connection to the political process. People may wish to assemble to protest against the Film and
Publications Board’s banning of a movie which they believe contains child pornography. This may at first
not appear to be linked to the political process. However, if politics is defined broadly, then questions about
whether citizens should be allowed to see works of artistic merit that depict uncomfortable realities may well
form part of the political process. It is therefore unclear how we would be able to draw this distinction.

14.2.2 Scope and ambit of the right to assembly

As the words of section 17 indicate, the right to assembly applies only to those assemblies that are peaceful and unarmed.
Assemblies that are not peaceful or that are armed are thus excluded from the scope and ambit of section 17. The requirement that
a protected assembly must be peaceful and unarmed thus serves as an internal modifier limiting the scope of the right itself.

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 PAUSE FOR REFLECTION

Peaceful Assemblies
Like section 17 of the Constitution, Article 8(1) of the German Constitution provides that ‘all Germans’ have
the right to ‘assemble peacefully and unarmed without prior notification or permission’.
In the Brokdorf Demonstration case,99 a number of non-governmental organisations announced that
they were planning to hold a large demonstration against plans to build a nuclear power plant in Brokdorf.
Following this announcement, the relevant authorities banned any demonstrations against the nuclear
power plant in an area covering 210 km2 around the site. The relevant authorities based their decision on
the grounds that they believed that 50 000 people would attend the demonstration and that some of the
demonstrators intended to engage in acts of violence.
In dealing with this case, the Federal Constitutional Court discussed the scope and ambit of the right to
assemble and, in particular, the requirements that the right applies only to those assemblies that are
peaceful. The Court held that an assembly will be classified as non-peaceful only if acts of physical violence
against persons or property are committed or threatened.100 In addition, the Court also held that where the
organisers and participants in a demonstration do not plan to engage in acts of physical violence, that
demonstration may not be prohibited or broken up if a small minority of demonstrators or
counter-demonstrators plan to engage in acts of violence. In these sorts of cases, the Court went on to
hold, the authorities must act against the violent minority and not against the demonstration as a whole.
The demonstration as a whole remains protected by Article 8.101

14.2.3 Distinguishing between assemblies, demonstrations, pickets and petitions

14.2.3.1 Assemblies and demonstrations

The Constitution does not define the word ‘assembly’. It appears, however, to apply to those situations where people intend to
meet together, either in public or in private, and remain together for some or other collective purpose. The fact that the
participants must intend to meet together distinguishes a protected assembly from a coincidental gathering of people, for example
at the site of a road accident. The Constitution does not protect this sort of gathering. 102
The Constitution also does not prescribe the purposes of a protected assembly. It may, therefore, be for a political purpose or
for an economic, social or cultural purpose. In addition, Rautenbach and Malherbe suggest that it is also not limited to the
communication of ideas or the discussion of matters. This is because the right to assemble is not simply a part of the right to
freedom of expression. The right also applies to assemblies where no opinions are formed or expressed, such as a concert or
soccer match.103
Demonstrations and pickets are manifestations of assemblies and are usually aimed at expressing support for a particular
point of view in public. The Regulation of Gatherings Act (Gatherings Act) 104 distinguishes between demonstrations and
gatherings. It defines a demonstration as ‘any demonstration by one or more persons, but not more than 15 persons, for or against
any person, cause, action or failure to take action’.105 It defines a gathering as ‘any assembly, concourse or procession of more
than 15 people in or on any public road as defined in the Road Traffic Act …, or any other public place or premises wholly or
partly open to the air …’.106 The Regulation of Gatherings Act thus distinguishes demonstrations from gatherings on the basis of
their size.
The reason for distinguishing between demonstrations and gatherings is that demonstrations, given their small size, are not
perceived to be a threat to public order while gatherings are. The organisers of a demonstration are thus not required to provide
prior notification of the intent to demonstrate, while the organisers of a gathering are. 107
In light of the fact that size is a somewhat arbitrary basis on which to define the statutory concept of a demonstration, it is
unlikely that this criterion will be used to define the constitutional concept of a demonstration.

14.2.3.2 Pickets
Picketing is a common feature in labour disputes. The Labour Relations Act (LRA) 108 protects the right of trade unions and
their members to picket. Section 69(1) of the LRA, for example, provides that ‘[a] registered trade union may authorize a picket
by its members and supporters for the purposes of peacefully demonstrating ( a) in support of any protected strike; or ( b) in
opposition to any lock-out’.

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 Section 69(2) of the LRA goes on to provide that ‘[d]espite any law regulating the right to assembly, a picket authorised in
terms of subsection (1), may be held (a) in any place to which the public has access but outside the premises of an employer; or (
b) with the permission of the employer, inside the employer’s premises’. The permission referred to in this section may not be
unreasonably withheld.109 The sorts of places referred to in section 69(2) include shopping malls and waterfronts.

PAUSE FOR REFLECTION

Balancing striking workers’ right to picket against a landowner’s right to the peaceful
use and enjoyment of property
When striking workers picket, they often sing, shout, ululate, bang instruments and blow whistles. These
noises can interfere with a landowner’s right to use and enjoy his or her property. A difficult issue which
arises in these sorts of cases is how to balance striking workers’ right to picket against a landowner’s right
to the peaceful use and enjoyment of his or her property. The KwaZulu-Natal High Court: Durban
considered this issue in Growthpoint Properties Ltd v South Africa Commercial Catering and Allied Workers
Union (SACCAWU) and Others.110
The facts of this case were as follows. The applicant owned the La Lucia Shopping Mall in Durban. One
of the tenants in this mall was Dis-Chem Pharmacies (Pty) Ltd. Towards the end of May 2010, the
employees of Dis-Chem embarked on a strike and, as a part of this strike, they picketed in the basement
parking entrance of the Mall. While they were picketing, the strikers blew whistles, sang, shouted and
ululated. Unfortunately, these noises disturbed members of the public and disrupted normal business
activities in the Mall. The applicant then claimed that the noise amounted to a nuisance and applied to the
High Court for an interdict to prevent the nuisance.
The High Court granted the interdict. In arriving at this decision, the Court began by stating that the key
challenge it had to address was how to balance the striking workers’ constitutional right to picket against
the landowner’s constitutional right to property, to trade and to a healthy environment.111 Before turning to
this task, however, it would be helpful to summarise the nature and purpose of picketing.
In labour law, the High Court explained further, picketing is commonly understood as an organised
effort of people carrying placards in a public place at or near a business premises. The act of picketing
involves an element of physical presence which, in turn, incorporates an expressive component. Its
purposes are usually twofold: first, to convey information about a labour dispute to gain support for the
cause from other workers, clients of the struck employer or the general public, and second, to put social
and economic pressure on the employer, and often, by extension, on its suppliers and clients.112
After summarising the nature and purpose of picketing, the High Court turned to balance the conflicting
constitutional rights. In this respect, the High Court started by explaining that like all other rights, the right to
picket is not unlimited and absolute. Inevitably in the nature of pickets, non-parties to the labour dispute are
inconvenienced and sometimes even prejudiced.113 Although protests and demonstrations are part of the
fabric of everyday life and non-parties to the disputes have to develop some tolerance to withstand the
disruption caused by picketers, such tolerance has its limits.114
In this case, the High Court explained further, tolerance levels were exceeded when the applicant and
its tenants could not conduct their business and suffered a loss of revenue as the public took their business
elsewhere. In addition, the evidence given by experts employed by the applicant showed that the level of
noise was unacceptably high. It exceeded the legal limit of 85 decibels set by the regulations governing
noise-induced hearing loss. The noise made by the strikers thus created an unhealthy environment and
prevented the applicant and its tenants from using their property.115
In light of these findings, the High Court went on to conclude that the strikers could exercise their rights
reasonably without interfering with the applicant, its tenants and the general public. The fact that the noise
made by the strikers caused the applicant and its tenants to lose business was an unacceptable and
unjustifiable limitation on their right to property, to trade and to a healthy environment.116
The strikers were, therefore, ordered to lower their noise level, but not to stop demonstrating, picketing,
carrying placards or singing and chanting softly.117

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 14.2.3.3 Petitions
The right to petition protects the right to make direct submissions to the relevant person or institution. 118 The right to petition in
terms of section 17 should be read together with sections 56 and 115 of the Constitution which provide that the National
Assembly (NA) and the provincial legislatures are obliged to ‘receive petitions, representations or submissions from any
interested persons or institutions’.
To give effect to these rights and obligations, all the provincial legislatures, with the exception of the Eastern Cape Provincial
Legislature, have enacted Petitions Acts.119 Section 1 of the KwaZulu-Natal Petitions Act defines a petition as:

a complaint, request, representation or submission addressed by a petitioner to the Committee, and

may take the form of:
( a) a single petition, which is an individual submission from a single petitioner concerning a
particular complaint or request;
( b) a collective petition, which is a collection of signatures from a number of petitioners concerning
a particular complaint or request;
(c) a group petition, made up of individual or group submissions from a number of petitioners
concerning the same or substantially similar complaints or requests;
( d) an association petition, which is an individual submission from an association, or an individual
mandated by an association, concerning a particular complaint or request.

14.2.4 The Regulation of Gatherings Act 205 of 1993

During the apartheid era a number of repressive laws were enacted to prohibit assemblies and demonstrations and to suppress
dissent. Among the most notorious of these laws were the Riotous Assemblies Act 120 and the Internal Security Act.121 In terms
of the Internal Security Act, the Minister issued an annual notice in terms of which all outdoor gatherings were declared illegal –
except gatherings for bona fide religious and sporting events – unless a magistrate granted permission to hold a gathering.
A constructive attempt to reconcile the rights of assemblers with the state’s interest in maintaining public order was advanced
through the Regulation of Gatherings Act (Gatherings Act). The Gatherings Act includes the view of demonstrations as a right.
However, the right is subject to notification to the local authorities and police seven days in advance. 122 The Act represents a
compromise between the old and the new order. Many of the provisions are not libertarian in essence and seem to favour
authority rather than the realisation of the right to freedom of assembly. The seven-day notice period could, in effect, put on ice
many passionate pleas.123 A further factor that may chill the collective efforts of demonstrators is the imposition of civil liability
on the members of the demonstration.124 However, the basic premise underlying the Gatherings Act remains that everyone has
the right to assemble and protest peacefully and that authorities have a duty to facilitate this through negotiations with organisers
of such an event if necessary.
Given that the right to protest is fundamental to the proper functioning of a democracy, the Gatherings Act assumes that
gatherings and protests will almost always be allowed and that technicalities will not be used to ban protests that would make the
powers-that-be uncomfortable. Although the provisions in the Act assume that notification will be given, the absence of giving
notice does not automatically render a gathering illegal. Thus, the Gatherings Act requires the relevant police officers to try to
identify organisers of protests and gatherings and then to engage with those organisers even if no notice was given of the protest
or gathering by its organisers.125 The Act further places a legal duty on the responsible officer to engage with organisers of a
gathering or protest to try to reach agreement about how the gathering or protest should be conducted. 126
To ensure the facilitation of peaceful gatherings, the Gatherings Act allows the responsible officer to impose certain
conditions on the gathering or protest if there are reasonable grounds to do so to minimise traffic disruptions, to ensure continued
access for others to their places of work and property, to prevent injury to any person and to prevent the destruction of property.
127 When an officer imposes such conditions, he or she is required by law to give written reasons for this. 128 The Gatherings
Act makes it clear that a gathering or protest may only be prohibited in extreme cases. Section 5 states that:

When credible information on oath is brought to the attention of a responsible officer that there is a
threat that a proposed gathering will result in serious disruption of vehicular or pedestrian traffic,
injury to participants in the gathering or other persons, or extensive damage to property, and that the
Police and the traffic officers in question will not be able to contain this threat, he shall forthwith meet
or, if time does not allow it, consult with the convener and the authorized member, if possible, and any
other person with whom, he believes, he should meet or consult, including the representatives of any
police community consultative forum in order to consider the prohibition of the gathering.

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 Only after such a meeting would a responsible officer be able to prohibit a gathering if he or she is convinced on reasonable
grounds that no amendment to the conditions of the gathering would prevent serious disruptions or extensive damage to property.

CRITICAL THINKING

A balancing act gone awry

The police have a duty to keep the peace. They must also protect the interests of all parties and must
protect the safety of individuals as well as their property. At the same time, in doing so, the police cannot
infringe on the right of others to protest peacefully. When a protest takes place without the necessary notice
having been given, the police officer in charge cannot automatically prohibit such a gathering or disperse
those who have gathered to take part in a protest. The individual police officers must exercise a discretion,
guided by the Gatherings Act and informed by section 17 of the Constitution. In doing so, they must
carefully balance the various interests.
In August 2012 – after several incidents of violence in the preceding days – the police opened fire and
killed 34 mineworkers at Marikana. After this massacre, the President appointed a Commission of Inquiry to
look into the circumstances that led to this disaster. However, in the wake of the massacre, various
institutions prohibited gatherings around Marikana as this news report explains:

In the wake of the [Marikana] massacre, activists alleged a crackdown on dissent, especially in
the platinum belt, but certainly not confined to it. In September, the Rustenburg Local
Municipality prohibited the Wonderkop Community Development Association from organising a
protest against police violence after a councillor, Paulinah Masutlho, was shot dead, allegedly by
the police.

Another protest, to be held by the Marikana Support Campaign outside the Farlam Commission,
was also prohibited. In Makause on the East Rand of Gauteng, the police thwarted criticism of
their own by blocking attempted protests against police violence.

Then it emerged that before the massacre, the Bafokeng Landbuyers’ Association had also
attempted to hold protests on mining rights, the demolition of houses, and the Protection of
State Information Bill, but their attempts were repeatedly thwarted by the Rustenburg
Municipality, which banned their protests on what they claimed to be spurious grounds. They
have also claimed that the Municipality is placing a myriad obstacles in the way of their and
others’ right to protest, to protect powerful mining interests and to stifle dissent against their
practices in the platinum belt.129

Can these prohibitions on gatherings in the wake of the Marikana massacre be justified?

14.2.5 Liability for damage caused during a gathering

Apart from imposing an obligation on the organisers of a gathering to provide notice to the local authority and police seven days
prior to the gathering,130 the Gatherings Act also imposes joint and several liability on the organisers of a demonstration or
gathering for riot damage caused by the participants in the demonstration or gathering. 131
Section 11(2) of the Gatherings Act goes on to provide, however, that an organiser can avoid liability if it can prove:

( a) that it did not permit or connive at the act or omission which caused the damage in question;
( b) that the act or omission in question did not fall within the scope of the objectives of the
demonstration or gathering in question and was not reasonably foreseeable; and
(c) that it took all reasonable steps within its power to prevent the act or omission in question.

The constitutional validity of these provisions was challenged in SATAWU.

The facts of this case were as follows. SATAWU organised a large gathering in the centre of Cape Town as part of a strike
by its members in the security industry. In preparation for the gathering, SATAWU complied with all the procedural
requirements of the Gatherings Act. In addition, it appointed approximately 500 marshals and advised its members to refrain from
unlawful and violent behaviour. It also asked the municipality to clear the roads of vehicles and to erect barriers along the route.

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 Despite the precautions carried out by SATAWU, the respondents’ shops were looted and their vehicles damaged during the
gathering. The respondents then sued SATAWU for damages in terms of section 11(1) of the Gatherings Act. In response,
SATAWU denied that it was liable and applied for an order declaring section 11(2) of the Act to be unconstitutional and invalid
on the grounds that it was irrational.
SATAWU argued that section 11(2) of the Gatherings Act was irrational because it required the organisers of a gathering to
take all reasonable steps to prevent the act or omission in question even when that act or omission was not reasonably
foreseeable. Apart from being irrational, SATAWU argued in the alternative that section 11(2) also limited the right to freedom
of assembly and that this limitation was not reasonable or justifiable.
A majority of the Constitutional Court rejected both these arguments and found that section 11(2) was constitutionally valid.
In arriving at this decision, the Constitutional Court began by noting that it was obliged – to the extent that this was possible – to
interpret section 11(2) in a manner that gave it a rational meaning and preserved its validity so that the purpose for which it was
enacted could be realised.132 The Court then remarked that:

Gatherings, by their very nature, do not always lend themselves to easy management. They call for
extraordinary measures to curb potential harm. The approach adopted by Parliament appears to be
that, except in the limited circumstances defined [in section 11(2)], organisations must live with the
consequences of their actions, with the result that harm triggered by their decision to organise a
gathering would be placed at their doorsteps.133

After making these points, the Constitutional Court then turned to examine section 11(2). In this respect, the Court began by
noting that the purpose of the section was:
(a) to provide for the statutory liability of organisations
(b) to afford the organiser a tighter defence by allowing it to rely on the absence of reasonable foreseeability and the taking of
reasonable steps
(c) to place the onus on the organiser to prove this defence instead of requiring the plaintiff to prove the organiser’s unlawfulness
and negligence.134

There is a interrelationship, the Constitutional Court noted further, between the steps that an organiser takes on the one hand and
what is reasonably foreseeable on the other. Section 11(2) requires that the organiser take reasonable steps within its power to
prevent the act or omission that is reasonably foreseeable. The real link between the foreseeability and the steps taken is that the
steps must have been reasonable to prevent what was foreseeable. If the steps taken at the time of planning the gathering were
indeed reasonable to prevent what was foreseeable, the taking of those preventative steps would render the act or omission that
subsequently caused the riot damage reasonably unforeseeable.135
It must be emphasised, however, that the Constitutional Court went on to note:

that organisations are required to be alive to the possibility of damage and to cater for it from the
beginning of the planning of the protest action until the end of the protest action. At every stage in the
process of planning, and during the gathering, organisers must always be satisfied of two things: that
an act or omission causing damage is not reasonably foreseeable and that reasonable steps are
continuously taken to ensure that the act or omission that becomes reasonably foreseeable is prevented.
This is the only way in which organisers can create a situation where acts or omissions causing damage
remain unforeseeable. In such a case, the requirement of taking reasonable steps is not met simply by
guarding against the occurrence of the damage-causing act or omission. The inquiry whether the steps
taken were sufficient to render the act or omission in question no longer reasonably foreseeable might
be very exacting. An important qualification is that the steps that the organisers are required to take
must be within their power.136

Although section 11(2) therefore provided a viable defence to the organisers of a demonstration or gathering, the majority
judgment found that this nevertheless limited the right to freedom of assembly guaranteed in section 17 of the Constitution. This
is because compliance with the requirements of section 11(2) of the Gatherings Act significantly increased the cost of organising
protest action. It may also well be that poorly resourced organisations that wish to organise protest action about controversial
causes that are nonetheless vital to society could be inhibited from doing so. Both of these factors amounted to a limitation of the
right to assemble and to demonstrate.137
The Court nevertheless found the limitation to be reasonable and justifiable in terms of the limitation clause set out in
section 36 of the Constitution. This is because, the Constitutional Court found, the limitation served an important purpose of
protecting members of society, including those who do not have the resources or capability to identify and pursue the perpetrators

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 of the riot damage for which they seek compensation. When a gathering imperils the physical integrity, the lives and the sources
of livelihood of the vulnerable, the organisations that are responsible for setting in motion the events that gave rise to the suffered
loss must bear liability for damages arising therefrom.138

14.3 Political rights

14.3.1 Introduction
Before 1994, the majority of South Africans were prohibited from voting in elections based solely on their race. The oppressive
and undemocratic state curtailed much of extra-parliamentary political activity. Liberation movements such as AZAPO, the ANC,
the PAC and the South African Communist Party (SACP) were prohibited from operating in the country. Police harassed and at
times detained, tortured and even killed activists who belonged to organisations such as the UDF – which was established in 1983
to spearhead resistance against apartheid – and the End Conscription Campaign (ECC). In short, the majority of South Africans
who opposed the apartheid regime enjoyed little or no political rights.
The drafters of the Constitution therefore included a wide range of political rights in the Constitution. Section 19(1) of the
Constitution thus states that ‘[e]very citizen is free to make political choices’. This includes the right:
• to form a political party
• to participate in the activities of, or recruit members for, a political party
• to campaign for a political party or cause.

Section 19(2) states that ‘[e]every citizen has the right to free, fair and regular elections for any legislative body established in
terms of this Constitution’ while section 19(3) confirms that ‘[e]very adult citizen’ has the right:
• to vote in elections for any legislative body established in terms of this Constitution and to do so in secret
• to stand for public office and, if elected, to hold office.

The Constitutional Court has considered the purpose behind the political rights guaranteed in section 19 of the Constitution in a
number of cases.139 In these cases, the Court has held that these rights are important for two reasons. First, the rights are
important because they are aimed at preventing a recurrence of the wholesale denial of political rights that took place during the
apartheid era. Deputy Chief Justice Moseneke eloquently explained this in Ramakatsa and Others v Magashule and Others where
he held that:

[d]uring the apartheid order, the majority of people in our country were denied political rights that
were enjoyed by a minority. The majority of black people could not form or join political parties of
their choice. Nor could they vote for those who were eligible to be members of Parliament. Differently
put, they were not only disenfranchised but were also excluded from all decision-making processes
undertaken by the government of the day, including those affecting them … The purpose of section 19
is to prevent the wholesale denial of political rights to citizens of the county from ever happening again.
140

A second reason why these rights are important is that they aim to give effect to a system of representative democracy. In
Ramakatsa, Moseneke DCJ explained this by affirming that section 19 has to be interpreted against the background of the
Constitution as a whole, especially the role afforded in the Constitution to political parties:

In our system of constitutional democracy political parties occupy the centre stage and play a vital part
in facilitating the exercise of political rights. This fact is affirmed by section 1 of the Constitution which
proclaims that ‘[u]niversal adult suffrage, a national common voters roll, regular elections and a
multi-party system of democratic government, to ensure accountability, responsiveness and openness’
are some of the values on which our State is founded.141

In contrast to most of the rights set out in the Bill of Rights that attach to ‘every person’, the rights contained in section 19 of the
Constitution are available only to citizens.142 It can therefore be observed that the Constitution distinguishes between citizens
who are the bearers of political rights and ‘everyone’ else, including, for example, foreign nationals, who are not entitled to
participate in the exercise of political rights. While foreign nationals enjoy almost all the other rights contained in the Bill of
Rights, only citizens can invoke the political rights set out in section 19.

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Does section 19 restrict the political activities of non-citizens?

Rautenbach and Malherbe argue that the political activities guaranteed in section 19 of the Constitution
should be restricted to those activities that form a part of the formal democratic process such as
participation in elections and the appointment and functioning of institutions provided for in the Constitution
and legislation. This is because only citizens are the bearers of the rights guaranteed in section 19. If the
concept of political activities was interpreted broadly to include all actions associated with holding or
expressing political views or engaging in political activities, then the rights of non-citizens to freedom of
opinion, expression, assembly and association, which are guaranteed for everyone, would be drastically
restricted.143
However, section 19 itself does not restrict the rights of non-citizens. It merely reserves the enjoyment
of these rights for citizens. If the legislature or other sections of the Constitution place restrictions on the
rights of non-citizens to take part in the activities of a political party, such restrictions would not fall foul of
section 19. However, if such restrictions also limit the rights to freedom of expression, assembly and
association of non-citizens, non-citizens will be able to invoke the latter rights to challenge the restricting
provisions. A court will then have to decide whether such restrictions are justifiable or not in terms of the
limitation clause. In other words, it is important to remember that rights are interdependent and that a
legislative provision (or other action) can infringe on more than one right at the same time.

14.3.2 The right to make political choices and the role of political parties

14.3.2.1 Introduction
Political parties lie at the heart of South Africa’s constitutional democracy. The Constitution does not regulate the internal affairs
of political parties. Nor does it contain extensive provisions on the appropriate constitutional relationship between political parties
and constitutional structures such as legislatures and executives. Note too that the right to make political choices goes beyond the
involvement of citizens in party politics: the involvement of some citizens in social movements, citizen activism and other civil
society organs is also pivotal for the proper functioning of a democracy. The rights to freedom of expression, assembly and
association ensure that these political activities not associated directly with political parties are adequately protected by the
Constitution.
However, section 19(1) of the Constitution, which guarantees for all citizens the right to form, participate in the activities of
and campaign for political parties, affirms that such participation lies at the heart of the right to make political choices.
Section 19(1) thus primarily guarantees the freedom to make a choice with regard to a political party and once that choice has
been made, it safeguards a member’s free and fair participation in the activities of the party concerned. 144
These provisions have a number of important consequences. Among these are the following:
• First, members of a political party have a constitutional right to participate in the activities of their party.
• Second, this constitutional right can be enforced not only against external interference, but against interference arising from
within the party itself.145 The constitutions and rules of political parties must, therefore, be consistent with the Constitution.
146

Although the constitutions and rules of political parties must be consistent with the Constitution, it is important to note that
section 19(1) does not spell out how members of a political party should exercise their right to participate in the activities of their
party. Instead, it is left to political parties themselves to determine how their members should participate in their activities. This is
because these activities are internal matters of each political party and they are best placed to determine how members should
participate. The constitutions of political parties are the instruments which facilitate and regulate participation by members in the
activities of a political party.147

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 CRITICAL THINKING

Enforcing internal party discipline without negatively affecting internal party democracy
In 2012, the then President of the ANC Youth League, Mr Julius Malema, was expelled from the ANC after
he was found guilty of contravening what were then rules 25.5(c) and (i) of the ANC Constitution.
Section 25.5(c) – since amended – stated that ‘[b]ehavior which brings the organisation into disrepute or
which manifests a flagrant violation of the moral integrity expected of members and public representatives
or conduct unbecoming that of a member or public representative’ shall constitute misconduct by a member
of the ANC. Section 25.5(i) stated that ‘[b]ehaving in such a way as to provoke serious divisions or a
break-down of unity in the organization’ would similarly constitute misconduct. A disciplinary committee of
the ANC relied on these provisions to expel Mr Malema for expressing his personal views at a press
conference of the ANC Youth League ‘which sought to portray the ANC government and its leadership
under President [Jacob] Zuma in a negative light in relation to the African agenda and which had the
potential to sow division and disunity in the ANC, and for expressing his personal views on Botswana which
contravened ANC policy’.148
Assuming that the various disciplinary committees were properly constituted and that they provided Mr
Malema a fair hearing, the expulsion of Mr Malema would probably be found to pass constitutional muster.
However, Mr Malema and his allies argued at the time that the action against him was motivated by political
considerations. They also argued that such actions would have a chilling effect on robust debate within the
internal structures of the ANC.
This case thus provides evidence of the difficult constitutional and broader ethical issues that arise
when a political party wishes to discipline its members. On the one hand, no organisation – especially not a
political party – can allow ill-discipline of its members. On the other hand, where members of a party are
disciplined for asking critical questions about the leadership of their political party, internal party democracy
may suffer and may even be extinguished.
Two pertinent issues arise. Would vague and general disciplinary rules that prohibit members of a
political party from bringing that party into disrepute and of sowing divisions in that party pass constitutional
muster? If not, how could a political party formulate its disciplinary rules to ensure that party discipline is
enforced without snuffing out internal debate in the party?

14.3.2.2 The regulation of political parties

As pointed out above, political parties play an important role in South Africa’s system of representative democracy. However,
there are no significant constitutional or legislative provisions that regulate the internal affairs of political parties such as the
manner in which they select their candidates for elections or the manner in which they discipline members who have allegedly
breached their rules.149
The legal relationship between a party and its members, therefore, is largely based on the common law principles that govern
voluntary associations. In terms of the common law, a voluntary association is taken to have been created by agreement as it is
not a body established by statute. A political party’s constitution together with its rules collectively comprise the terms of the
agreement entered into by its members. It is, however, regarded as a unique agreement.
Although there are no significant constitutional or legislative provisions regulating the internal affairs of political parties, the
Electoral Act 150 and the Electoral Commission Act 151 do regulate the manner in which political parties may participate in
elections. These Acts provide, inter alia, that political parties who wish to contest an election must register, 152 submit a list of
candidates 153 and pay a deposit which is forfeited in the event of the party not securing a seat in the elections. Every political
party and every participating candidate must also subscribe to the code of conduct. 154 Finally, it is important to note that the
Electoral Commission may not accept the late submission of candidate lists by parties. 155

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A generous interpretation of sections 14 and 17 of the Municipal Electoral Act

In African Christian Democratic Party v Electoral Commission and Others, the Constitutional Court held that
the reason why political parties are required to pay a deposit before they can contest an election is to
ensure that their participation in the election in question is not frivolous.156
In this case, the applicant decided to contest the 2006 local government elections in the Cape Town
Metro. After taking this decision, it lodged a notice of intention to contest the elections together with a list of
candidates at the Electoral Commission’s office in Cape Town. Unfortunately, it did not pay a deposit at the
Commission’s Cape Town office as required by sections 14 and 17 of the Local Government: Municipal
Electoral Act.157
When the applicant was informed of this fact, it asked the Electoral Commission to take the deposit
from the surplus funds it had deposited at the Electoral Commission’s head office in Pretoria. The Electoral
Commission, however, refused to do so and disqualified the applicant from contesting the elections in Cape
Town. The applicant then applied unsuccessfully to the Electoral Court for an order overturning the
Commission’s decision. After the Electoral Court dismissed the application, the applicant appealed to the
Constitutional Court. The Constitutional Court upheld the appeal and found in favour of the applicant.
In arriving at this decision, the Constitutional Court began by noting that even though sections 14 and
17 of the Municipal Electoral Act specifically stated that the deposit should be paid at the Electoral
Commission’s local offices and not at its head office, these sections should not be interpreted in a way that
prohibited deposits being paid at the head office. This is because the central purpose of sections 14 and 17
was to make sure that political parties who have notified the Commission that they intend to contest the
election are being serious. There was no central purpose attached to the precise place where the deposit
was paid.158
In addition, the Constitutional Court explained further, interpreting sections 14 and 17 of the Municipal
Electoral Act in a manner that allowed the deposits to be paid at the Electoral Commission’s head office
facilitated participation in the elections rather than exclusion. This interpretation was also consistent with
section 1(d) of the Constitution which provides that ‘[t]he Republic of South Africa is one sovereign,
democratic state founded on the following values: Universal adult suffrage, a national common voters roll,
regular elections and a multi-party system of democratic government to ensure accountability,
responsiveness and openness’.159
Apart from the reasons set out above, the Constitutional Court also held that no other candidates or
parties would be harmed by a generous interpretation of sections 14 and 17 of the Municipal Electoral Act.
160

14.3.3 State funding of political parties

Political parties can only operate effectively if they have access to funds. However, this need for funds is a source of anxiety in
many democracies. Where political parties are reliant on private donors and big corporations for their funds, this often distorts the
policies and programmes of political parties to the detriment of those voters who cannot influence the policies and programmes in
a similar fashion. Money, so it is said, can corrupt democratic policies and those with money will often try to do so. Section 236
of the Constitution therefore states that ‘to enhance multi-party democracy, national legislation must provide for the funding of
political parties participating in national and provincial legislatures on an equitable and proportional basis’. The national
legislation referred to in this section is the Public Funding of Represented Political Parties Act. 161
This Act establishes a fund which is managed by the Electoral Commission. Money is allocated from this fund to the parties
represented in the national and provincial legislatures from time to time. The amount each party is allocated depends on two
factors: first, each party’s proportional number of seats, and second, the principle of equity. The principle of equity provides that
each party must at least receive a fixed minimum amount. This means larger parties will receive more funds than smaller parties.
New parties entering the political space will receive no funds as they will have no seats in Parliament. The money allocated to
each party must be used for purposes that are compatible with the functioning of a political party in a democratic society.

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Proportional national funding provides an unfair advantage to incumbent parties

Lowry suggests that instead of adopting a system of proportional national funding of political parties it would
be better to adopt an egalitarian model similar to those employed in the United Kingdom and Canada. In
terms of this approach, spending caps are imposed on political parties and greater transparency of funding
and in particular private financing is required.162 Where funding is allocated on the basis of the
proportional support the party received in the previous election, so the argument goes, it makes it very
difficult for smaller parties to compete fairly in elections. The more money to which a party has access, the
better it can run an election campaign. The converse is also true. Thus, the system is often criticised
because it provides an unfair advantage to incumbent parties.

Apart from the money allocated to political parties represented in the national and provincial legislatures, each political party is
free to raise its own funds through private donations. Unlike the approach adopted in a number of other constitutional
democracies, however, there is limited regulation of private funding in South Africa. 163
In Institute for Democracy in South Africa and Others v African National Congress and Others , the High Court held that the
Promotion of Access to Information Act (PAIA) 164 does not impose an obligation on political parties represented in the national
and provincial legislatures to provide members of the public with information about the private donations they have received. 165
In arriving at this decision, the High Court held that for the purpose of their private donation records, political parties should not
be classified as public bodies, but rather as private bodies. This meant, the High Court held further, that the applicant was entitled
to be granted access to the respondents’ private donation records only if it could show that this information was ‘required for the
exercise or protection of any right’.166
Although the applicant argued that the donor records were required for the exercise or protection of the rights set out in
section 19 of the Constitution, the High Court went on to hold, they did not explain how the respondent’s donation records would
assist them in exercising or protecting those rights or why, in the absence of those donation records, they would be unable to
exercise them.167
On the face of it, the High Court concluded, section 19(1) prevents any restrictions from being imposed on a citizen’s right to
make political choices, such as forming a political party, participating in the activities of and recruiting members for a party, and
campaigning for a political cause. Similarly, the right to ‘free, fair and regular elections’ enshrined in section 19(2) does not
impose a duty on political parties to disclose funding sources nor does it afford citizens a right to gain access to such records. The
emphasis in section 19(2) lies on the elections and the nature of the electoral process and not so much on the persons or parties
participating in those elections.168

CRITICAL THINKING

The debate about the disclosure of sources of campaign funds

Lowry suggests that one way of ensuring public confidence in elections would be to compel political parties
to disclose the sources of their campaign funds to public scrutiny.169 However, in South Africa there has
been little enthusiasm for this proposal from both the majority party and from minority parties.
Smaller parties argue that the majority party is entrenched and attracts large state funding and private
funding as a result. Smaller parties are left to scrounge for private donations to fund the greater part of their
expenses. Such donations, so the argument goes, may be difficult to obtain as donors may fear retaliation
from the governing party if it becomes known that they have made donations to opposition parties.170
In the absence of legislation that compels all political parties to disclose all sources of their funding, it
will be impossible to hold political parties accountable and to prevent the powerful and wealthy from
attempting to buy influence by donating money to political parties.

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 14.3.4 The right to free, fair and regular elections
Apart from the right to make political choices guaranteed in section 19(1) of the Constitution, section 19(2) provides that ‘[e]very
citizen has the right to free, fair and regular elections for any legislative body established in terms of this Constitution’.
As the Constitutional Court pointed out in New National Party v Government of the Republic of South Africa and Others ,171
this right to free and fair elections is closely related to the right to vote. This is because ‘the right to vote is indispensable to, and
empty without, the right to free and fair elections; the latter gives content and meaning to the former’. 172
Most rights contained in the Constitution merely require the state not to interfere with the exercise of the right. By contrast,
the right to free, fair and regular elections imposes positive obligations on the state to ensure that it is fulfilled. 173 For example, a
date for elections has to be promulgated, the secrecy of the ballot ensured and the process of elections must be managed. The
results of an election also have to be declared.174
To ensure that these positive obligations are carried out in a free and fair manner, the Constitutional Court has held that the
power to organise and manage elections must be vested in an independent institution. 175 Sections 181 and 190 of the
Constitution read together with the Electoral Commission Act fulfil this requirement by establishing an independent Electoral
Commission (a so-called Chapter 9 institution) and then conferring the power to organise and manage elections on this institution.
Together with the other Chapter 9 institutions, section 181(2) of the Constitution expressly refers to the independence of the
Electoral Commission. Section 181(2) provides that ‘[the Chapter 9 institutions] are independent, and subject only to the
Constitution and the law, and that they must be impartial and must exercise their powers and perform their functions without fear,
favour or prejudice’.176
In the New National Party case, the Constitutional Court held that the independence of the Electoral Commission
encompasses at least two aspects: financial independence and administrative independence.
Financial independence means that the Electoral Commission must have access to funds reasonably required to enable it to
carry out its functions. An important consequence of this principle is that while Parliament has the authority to set a budget for
the Commission, it must consider what is reasonably required by the Commission and deal with its requests for funding in a
rational manner. In addition, it also means that Parliament rather than the executive must allocate the funds required by the
Commission.177
Administrative independence means that the Electoral Commission must have control over those matters directly connected
with the functions the Commission has to carry out. An important consequence of this principle is that while the executive is
obliged to provide the Commission with any assistance it requires ‘to ensure its independence, impartiality, dignity and
effectiveness’, the executive may not tell the Commission how to conduct registration, whom to employ, and so on. 178
The main functions of the Electoral Commission are set out in section 190(1) of the Constitution. This section provides as
follows:

1. The Electoral Commission must:

( a) manage elections of national, provincial and municipal legislative bodies in accordance
with national legislation;
( b) ensure that those elections are free and fair; and
(c) declare the results of those elections within a period that must be prescribed by national
legislation and that is as short as reasonably possible.

Besides vesting the power to organise and manage elections in an independent institution, the Constitutional Court has also held
that an election will only be fair if the following two requirements are satisfied: first, each citizen entitled to do so must not be
allowed to vote more than once in an election, and second, any person who is not entitled to vote should not be allowed to do so.
This means that the regulation of the exercise of the right to vote is necessary so that any deviations from these requirements can
be eliminated or restricted to ensure the proper implementation of the right to vote. 179
The duty that rests on the state to realise effectively an individual’s political rights is aptly demonstrated in the matter of
August and Another v Electoral Commission and Others .180 In this case the Constitutional Court was required to determine
whether the right of prisoners to vote had been infringed in so far as the Commission had not taken the necessary steps to ensure
that prisoners could register and therefore vote. One of the functions of the Commission is to compile and maintain a voters roll.
181 The Commission decided primarily for budgetary and administrative requirements that it would not take any steps to allow
prisoners to vote in the 1999 elections. The Court held that the Commission had a duty to ensure the registration of these
prisoners so as to enable them to exercise their political rights.182
Note that the freeness and fairness of elections do not depend solely on the Electoral Commission. Where some political
parties are not treated fairly by the media (including the state media), or where the ability of political parties to campaign is

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 restricted by the state, the freeness and fairness of the election will be questioned. Similarly, where state institutions or the
members of powerful political parties are allowed to intimidate voters, the freeness and fairness of the election would similarly be
compromised. Section 18 of the Electoral Commission Act establishes an Electoral Court to prevent such abuses from occurring.
Section 96 of the Electoral Act empowers the Electoral Court to enforce the various provisions in that Act aimed at preventing
just such abuses.

14.3.5 The right to vote

14.3.5.1 Introduction
Section 19(3) of the Constitution provides that ‘[e]very adult citizen has the right: ( a) to vote in elections for any legislative body
established in terms of this Constitution and to do so in secret; and ( b) to stand for public office and, if elected, to hold office’.
The Constitutional Court highlighted the significance of the right to vote (and its intimate relationship with the value of
human dignity that permeates the Bill of Rights) in August. The Court held that ‘[t]he vote of each and every citizen is a badge of
dignity and of personhood. Quite literally, it says that everybody counts’. 183 The right to vote, therefore, is symbolic of our
citizenship and represents a practical manifestation of how the Constitution recognises and protects the dignity of every citizen.
Given South Africa’s history in which the dignity of black South Africans was systematically denied by the state – in part by
denying black South Africans the right to vote – this right and its protection is of profound importance for every citizen. As
O’Regan J stated in the New National Party judgment:

The obligation to afford citizens the right to vote in regular, free and fair elections is important not
only because of the relative youth of our constitutional democracy but also because of the emphatic
denial of democracy in the past. Many of the injustices of the past flowed directly from the denial of
the right to vote on the basis of race to the majority of South Africans. The denial of the right to vote
entrenched political power in the hands of white South Africans.184

Apart from its symbolic role of affirming the dignity of all, the Constitutional Court held in Richter v The Minister for Home
Affairs and Others that the right to vote is also a crucial working part of our democracy:

Without voters who want to vote, who will take the trouble to register, and to stand in queues, as
millions patiently and unforgettably did in April 1994, democracy itself will be imperilled. Each vote
strengthens and invigorates our democracy. In marking their ballots, citizens remind those elected that
their position is based on the will of the people and will remain subject to that will. The moment of
voting reminds us that both electors and the elected bear civic responsibilities arising out of our
democratic Constitution and its values.185

To put this differently, voting reminds us that those elected to govern the country do so by invitation of the voters who lend their
vote to a specific political party for a maximum period of five years. After five years, voters have a right to re-evaluate this
choice. If they are unhappy with how the political party of their choice has served them, they can decide to lend their vote to
another party again for a limited period of no more than five years.
Section 1 of the Electoral Act defines a voter as a South African citizen who is 18 years or older and whose name appears on
the voters roll. As this definition indicates, a citizen who is 18 years or older may vote only if his or her name appears on the
voters roll.186
A citizen’s name will appear on the voters roll only if he or she has registered to vote in terms of section 6 of the Electoral
Act. In New National Party, the Constitutional Court held that the requirement in section 1 of the Constitution that voting must
occur in terms of a common voters role means that registering to vote is an inherent requirement for the exercise of the right to
vote. The legislation that requires registration and prevents unregistered voters from voting can therefore not be classified as an
infringement of the right to vote. It is a requirement for exercising the right not an infringement of it. 187

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 PAUSE FOR REFLECTION

Is the requirement of registration for exercising the right to vote a limitation on the right
to vote?
Rautenbach and Malherbe have criticised the approach adopted by the Constitutional Court in New
National Party. They argue that the requirement that citizens must register before they can vote should not
be classified as an inherent part of the right to vote, but rather as a limitation of the right to vote that needs
to be justified in terms of the limitation clause. This is because the national voters roll could have been
compiled simply by transferring the names on the population register to the national voters roll.188 This
argument assumes that only the names of those 18 years and older could be placed on such a voters role.
It also assumes that the population register is up to date and accurate.
The opposite view is that while voting is a right, it is not unreasonable to say that it imposes certain
duties on citizens in order to exercise this right. One of these duties is to take the trouble to register to vote.
Voters who do not bother to register on the voters role may also be less concerned and informed about
politics and about issues of the day and would arguably be far less likely to cast their votes.

Despite the fact that section 19(3) of the Constitution provides that every adult citizen has the right to vote, section 8 of the
Electoral Act excludes certain categories of adult citizens from voting by providing that they may not be registered as voters.
Section 8 of the Act provides in this respect that:

The chief electoral officer may not register a person as a voter if that person:
( a) has applied for registration fraudulently or otherwise than in the prescribed manner;
( b) has been declared by the High Court to be of unsound mind or mentally disordered;
(c) is detained under the Mental Health Act 18 of 1973; or
( d) is serving a sentence of imprisonment without the option of a fine.189

These limitations are subject to the limitation clause as set out in section 36 of the Constitution and the courts could be called on
to determine the constitutionality of these exclusions. Apart from the right to vote, section 19(3) also provides that every citizen
has the right to vote in secret.190

14.3.5.2 Regulating the right to vote

Like all other rights guaranteed in the Bill of Rights, Parliament may pass legislation that regulates the manner in which the right
to vote may be exercised. The Constitutional Court set out the test that must be used to determine whether legislation that
regulates the right to vote is constitutionally valid in New National Party.
At issue in this case was the fact that before a citizen may register as a voter, he or she has to fulfil the registration
requirements set out in section 6 of the Electoral Act. One of these requirements is that he or she must be in possession of a green
bar-coded identity document.191 This document replaced the old, much larger, blue identity document which did not contain a
bar code in 1986. In New National Party, a majority of the Constitutional Court held that this requirement was constitutionally
valid because it was rationally related to a legitimate governmental purpose. At the time when the case was brought, several older
voters (especially white voters) had not replaced the old blue identity document with the new green document. According to
statistics accepted by the Constitutional Court, approximately 80% of eligible voters had bar-coded IDs, 10% had no IDs at all
and 10% were in possession of valid IDs that were not bar-coded. The 10% of eligible voters who were in possession of valid IDs
that were not bar-coded amounted to approximately 2,5 million people.
In rejecting the argument that the requirement that a person could only register if he or she were in possession of a green
bar-coded identity book was unconstitutional, the Constitutional Court affirmed that Parliament had the authority to determine the
way in which voters must identify themselves. It nevertheless stated that Parliament does not have a free hand to do so. This is
because the Constitution imposes important limits on the manner in which Parliament may exercise its powers.
First, the method that Parliament adopts for voters to identify themselves must not infringe the principle of the rule of law.
192 This will be the case if the measures are not rationally related to a legitimate governmental objective. This is because

arbitrariness is inconsistent with the rule of law which is a core value of the Constitution. 193 The majority held that requiring the
bar-coded identity book for voter registration was rational because:

[t]he bar-code on the document facilitates quick, easy and reliable verification of the fact that the name

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 of the person has been entered on the population register. In addition, it is much easier for officers
charged with the verification of the necessary particulars at the point of registration and voting to
perform this task if they are to do so consistently by reference to a single type of identity document.
Recognition of a multiplicity of documents for this purpose could be potentially confusing, give rise to
error and slow down the process.194

Second, the measures must not unjustifiably infringe the right to vote guaranteed in section 19(3) of the Constitution. 195 In this
regard, the Constitutional Court held that the method Parliament adopts for voters to identify themselves will infringe the right to
vote if, at the time the method was adopted by Parliament, an eligible voter who wanted to vote would not be able to do so even
though he or she took reasonable steps in pursuit of his or her right to vote. This is because any method which was not
sufficiently flexible to be reasonably capable of achieving the goal of ensuring that people who wanted to vote would be able to
do so if they acted reasonably in pursuit of the right, had the potential to infringe the right. 196 Given this test, the majority found
that the bar-coded ID requirement did not infringe the right to vote. This is because even though the Electoral Act had been
promulgated only nine months before the general election, there was no evidence to show that at the time Parliament passed the
Electoral Act the Department of Home Affairs would be unable to issue a bar-coded ID to any eligible voter who applied for one
before the voter registration process closed. Any eligible voter who took reasonable steps to obtain a bar-coded ID and to register
as a voter, therefore, would be able to vote.197

CRITICAL THINKING

Was the rationality standard used by the majority in the New National Party case
correct?
In her minority judgment in the New National Party case, O’Regan J disagreed with the application of a
rationality standard to this issue. Given the role played by voting in determining who should exercise
political power, the right to vote is ‘worthy of particular scrutiny by a court to ensure that fair participation in
the political process is afforded’.198 According to O’Regan J, the majority’s approach would be appropriate
in relation to determining whether legislation giving rise to differential treatment is constitutional, but it would
be:

far too deferential a standard for determining whether legislation enacted by Parliament to
enable citizens to exercise their right to vote gives rise to an infringement of the right to vote.

In my view, it is quite appropriate to require Parliament to act reasonably. The right to vote is
foundational to a democratic system. Without it, there can be no democracy at all. What is more
the right cannot be exercised in the absence of a legislative framework. That framework should
seek to enhance democracy not limit it. To do so, it needs to draw all citizens into the political
process. Regulation, which falls short of prohibiting voting by a specified class of voters, but
which nevertheless has the effect of limiting the number of eligible voters needs to be in
reasonable pursuance of an appropriate government purpose. For a court to require such a level
of justification, is not to trample on the terrain of Parliament, but to provide protection for a right
which is fundamental to democracy and which cannot be exercised at all unless Parliament
enacts an appropriate legislative framework.199

The difference between the majority judgment and the minority judgment is therefore quite stark. The
majority used a rationality standard and hence found that the impugned provisions requiring bar-coded
identity books to register to vote was in compliance with the right to vote. O’Regan J in her minority
decision, using a reasonableness standard, held the very opposite. Given South Africa’s history, in which
the vast majority of citizens were denied the right to vote, it is surprising that the majority employed the
rationality standard, which is easy to meet, rather than the more searching standard of reasonableness
which O’Regan J supported.

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 14.3.5.3 Exclusions from the right to vote

14.3.5.3.1 Introduction
Besides regulating the right to vote, Parliament has also excluded certain categories of citizens from the right to vote. Among
these are prisoners and citizens living abroad. The Constitutional Court has considered the constitutional validity of these
exclusions in a number of cases.200

14.3.5.3.2 Prisoners
Apart from August which is discussed above, the Constitutional Court has considered the exclusion of prisoners from the right to
vote in Minister of Home Affairs v National Institute for Crime Prevention and the Re-integration of Offenders (NICRO) and
Others.201 Unlike in August, this case dealt with a legislative provision purporting to limit the rights of prisoners to vote. 202 The
provisions effectively disenfranchised convicted prisoners serving sentences of imprisonment without the option of a fine by
prohibiting them from registering as voters and from voting while in prison. 203 Unsentenced prisoners and prisoners incarcerated
because of their failure to pay their fines retained the right to register and vote.
After the provisions of the Electoral Laws Amendment Act 204 came into operation, the respondents applied for an order
declaring them to be unconstitutional and invalid on the grounds that they unjustifiably infringed the right to vote. A majority of
the Constitutional Court agreed with the respondents and granted the order.
The Constitutional Court accepted (and this was conceded by all parties) that these provisions, which prevented most
prisoners from voting, infringed on their right to vote which is guaranteed in section 19(3)( a) of the Constitution. The only
question was whether such a limitation of the right was justifiable in terms of the limitation clause or not. The majority of the
court (per Chief Justice Chaskalson) held that the limitation was not justifiable and hence was unconstitutional. 205
The Court rejected the argument that special arrangements would have to made for the prisoners in question to vote and that
these special arrangements could put the integrity of the voting process at risk. Special measures, therefore, would have to be put
in place and this would put a strain on the Electoral Commission’s financial and logistical resources. The factual basis for this
justification had not been established. The Electoral Commission had made arrangements for registering unsentenced prisoners
and prisoners incarcerated because of their failure to pay their fines. There was nothing to suggest that extending these
arrangements to include convicted prisoners serving sentences of imprisonment without the option of a fine would place an undue
burden on the Electoral Commission’s financial and logistical resources. Apart from saying that it would be costly to do so, the
Minister provided no information about the logistical problems or estimates of the costs involved. 206
The Court also grappled with the argument advanced by the government that it was important for the government to
denounce crime and to communicate to the public that the rights that citizens have, such as the right to vote, are related to
fulfilling their duties and obligations as citizens. The Court pointed out that a majority of the Canadian Supreme Court had
rejected a similar argument in Sauve v Canada (Chief Electoral Officer) 207 despite the fact that the Canadian government had
presented a great deal of evidence to justify the law in question. 208 Unlike the Canadian government, the Court held further, the
Minister had presented almost no evidence to justify the Amendment Act other than simply saying that the ‘government did not
want to be seen to be soft on crime and that it would be unfair to others who cannot vote to allow prisoners to vote’. 209 These
statements, the Court went on to conclude, could not hope to justify the Amendment Act which applied to both serious and
relatively minor crimes and even to prisoners whose convictions and sentences were still under appeal. 210

PAUSE FOR REFLECTION

Why the government lost the NICRO case

The NICRO case must be understood with reference to the discussion on the limitation clause enquiry in
chapter 10. The government lost the case because it failed to provide evidence to justify its legislative
choices. It did not put any evidence before the Court as to why the particular category of prisoners (all
convicted prisoners serving sentences of imprisonment without the option of a fine) had to be distinguished
from other categories of prisoners and why it was important to disenfranchise them. If the law had only
disenfranchised prisoners convicted of the most serious crimes and if the government had provided
evidence on how the legislation effectively targeted the most dangerous and morally reprehensible
criminals, the limited disenfranchisement might have been found to be justifiable.

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 14.3.5.3.3 Citizens working abroad
It is widely believed that a sizeable number of South African citizens live abroad although exact figures are not available.
Legislation did not provide for citizens living abroad (who have not emigrated and thus remain citizens of the country) to vote in
South African elections.
In 2009, the Constitutional Court declared invalid the legal provisions which excluded South Africans living abroad from
voting in Richter. The applicant was a South African citizen who was a registered voter and who was working in the United
Kingdom as a teacher. Although he wanted to vote in the 2009 general elections, he was unable to do so because section 33(1)( e)
of the Electoral Act only made provision for South Africans who were temporarily absent from the Republic for business,
holiday, educational and sporting purposes to cast special votes. It made no provision for South Africans who were absent for
employment or other purposes to cast special votes.
The Constitutional Court affirmed that the right to vote also imposes burdens on citizens. First, they have to register in good
time. Then, on polling day, they may have to journey some distance to a voting station. They have to be in possession of a
bar-coded identity document and they may have to stand in a long queue to vote. 211 To determine whether the burdens placed on
a voter who wishes to exercise his or her right to vote are inconsistent with the Constitution, the Court held further, it must apply
the test adopted in New National Party. This test provides that a statutory provision will infringe the right to vote if it prevents an
eligible voter who wishes to vote and who has taken reasonable steps in pursuit of the right to vote from voting. 212 Note that
reasonableness here does not relate to the test developed by O’Regan J for the minority in New National Party. That test asked
whether Parliament had acted reasonably. In this case, the Court asked whether arrangements to vote would have made it
impossible for a voter who had acted reasonably to exercise his or her vote.
The Constitutional Court noted that apart from travelling back to South Africa from the United Kingdom to be present on
polling day, there were no steps that the applicant in the position of Mr Richter could take to vote in the 2009 general elections.
Requiring the applicant and other citizens in his position to travel thousands of kilometres across the globe to be in their voting
districts on voting day, the Court held further, was not reasonable. This was especially so in light of the fact that section 33(1)( b)
of the Electoral Act provided that those citizens who were working abroad on government service did not have to return home to
vote but could vote at South African embassies, high commissions and consulates. 213
In addition, the Court went on to hold, it was important to note that we live in a global economy and that more and more
South Africans are working abroad. The fact that these citizens want to exercise their civic responsibilities and vote should be
encouraged.214
After finding that section 33(1)(e) of the Electoral Act infringed the right to vote, the Constitutional Court turned to consider
whether this infringement satisfied the requirements of the limitation clause. The Court held that it did not. In arriving at this
decision, the Court began by pointing out that in terms of section 33(1)( b) those citizens who are working abroad for the
government on voting day are permitted to vote while they are abroad. 215 In addition, the Court pointed out further, many other
open and democratic societies allow citizens who are abroad on voting day to vote while they are abroad. 216 Finally, the Minister
was unable to point to any legitimate governmental purpose that would be served by preventing citizens who are abroad from
voting.217

14.3.6 The right to stand for and hold office

Political rights do not only include the right to vote and to participate as a citizen voter in free and fair elections. Section 19(3)( b)
of the Constitution also guarantees for every adult citizen the right to ‘stand for public office and, if elected, to hold office’. As
we pointed out in chapter 4 in this book, sections 47(1) and 106(1) specifically state that some citizens are not eligible to become
a member of the national Parliament or the provincial legislatures. Similarly, sections 47(3) and 106(3) provide for incidences
where a citizen elected to the national Parliament or the provincial legislatures as a member of a specific political party would
lose his or her membership. As we have already discussed these matters, we will not deal with them again here.

SUMMARY

Given that the majority of South Africa’s citizens were denied political rights prior to 1994, it is not surprising that section 19 of
the Constitution protects a wide range of political rights. Among these are the right to make political choices; the right to free, fair
and regular elections and the right to vote in secret and to stand for public office. These rights are important not only because they
are aimed at preventing the wholesale denial of political rights from ever taking place again, but also because they are aimed at
giving effect to the system of representative democracy enshrined in the Constitution.
In so far as the rights guaranteed in section 19 of the Constitution are concerned, however, it is important to note that, unlike

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 most of the other rights set out in the Bill of Rights, these rights are available only to citizens. The Constitution, therefore,
distinguishes between citizens who are the bearers of political rights and ‘everyone’ else, including, for example, foreign
nationals, who are not entitled to participate in the exercise of political rights. While foreign nationals enjoy almost all of the
other rights contained in the Bill of Rights, only citizens can invoke the political rights set out in section 19.
The political rights protected in section 19 of the Constitution must be read together with the right to freedom of expression
guaranteed in section 16 and the right to freedom of assembly, demonstration, picket and petition guaranteed in section 18. This is
because democracy entails more than simply being able to vote. It must also give people an opportunity to form their own views
and to express them by coming together and protesting peacefully. This allows people whose influence on political parties would
otherwise be minimal to raise issues that are important to them, to draw attention to these issues and to engage with their fellow
citizens and representatives about these issues.
Apart from participation in the political process, the rights to freedom of expression and assembly, demonstration, picket and
petition also promote a number of other goals. The right to freedom of expression, for example, recognises and protects the moral
agency of individuals in our society and facilitates the search for truth. The right to freedom of assembly, demonstration, picket
and petition promotes the development of each individual’s unique personality. This is because our personalities do not develop
in isolation, but rather in the context of groups. Cultural, education and religious assemblies may, therefore, be as important as
political assemblies.
Finally, it is important to note that both of these rights have internal modifiers. The right to freedom of expression, therefore,
does not include the right to promote war, incite imminent violence or advocate hatred that is based on race, ethnicity, gender or
religion, and that constitutes incitement to cause harm. The right to freedom of assembly, demonstration, picket and petition does
not include the right to assemble, demonstrate, picket or petition in a violent or armed manner. Although these sorts of activities
are not prohibited by the Constitution, they are also not protected by the Constitution. This means that they may be prohibited by
legislation. The Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) thus prohibits hate speech and
the Regulation of Gatherings Act prohibits armed and violent assemblies, demonstrations and pickets.

1 See S v Mamabolo (CCT 44/00) [2001] ZACC 17; 2001 (3) SA 409 (CC); 2001 (5) BCLR 449 (CC) (11 April 2001) para 28; Islamic Unity Convention v
Independent Broadcasting Authority and Others (CCT36/01) [2002] ZACC 3; 2002 (4) SA 294; 2002 (5) BCLR 433 (11 April 2002) para 25.
2 Act 74 of 1982.
3 Shabalala and Others v Attorney-General of the Transvaal and Another (CCT23/94) [1995] ZACC 12; 1995 (12) BCLR 1593; 1996 (1) SA 725
(29 November 1995) para 26.
4 Islamic Unity Convention para 30.
5 South African National Defence Union v Minister of Defence (CCT27/98) [1999] ZACC 7; 1999 (4) SA 469; 1999 (6) BCLR 615 (26 May 1999) para 8.
6 See Shabalala; South African National Defence Union; Islamic Unity Convention; Mamabolo.
7 South African National Defence Union para 8.
8 (CCT27/98) [1999] ZACC 7; 1999 (4) SA 469; 1999 (6) BCLR 615 (26 May 1999) para 7.
9 (CCT 44/00) [2001] ZACC 17; 2001 (3) SA 409 (CC); 2001 (5) BCLR 449 (CC) (11 April 2001) para 37.
10 Mamabolo para 37.
11 Case and Another v Minister of Safety and Security and Others, Curtis v Minister of Safety and Security and Others (CCT20/95, CCT21/95) [1996]
ZACC 7; 1996 (3) SA 617; 1996 (5) BCLR 608 (9 May 1996) para 26.
12 Herman, ES and Chomsky, N (1988) Manufacturing Consent: The Political Economy of the Mass Media 306.
13 Herman and Chomsky (1988) 306.
14 Case para 26.
15 (CCT53/01) [2002] ZACC 12; 2002 (5) SA 401; 2002 (8) BCLR 771 (14 June 2002) para 18.
16 (CCT 90/07, CCT 92/07) [2008] ZACC 14; 2008 (2) SACR 557 (CC); 2009 (1) SA 141 (CC); 2009 (3) BCLR 309 (CC) (31 July 2008) para 52. See also
Mthembi-Mahanyele v Mail & Guardian Ltd and Another (054/2003) [2004] ZASCA 67; [2004] 3 All SA 511 (SCA) (2 August 2004) para 41.
17 The First Amendment reads as follows: ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble, and to petition the Government for a redress of
grievances’.
18 (CCT20/02) [2003] ZACC 1; 2003 (3) SA 345; 2003 (4) BCLR 357 (11 March 2003).
19 Phillips para 15.
20 Islamic United Convention paras 28–9.
21 Hamata and Another v Chairman, Peninsula Technikon Internal Disciplinary Committee and Others 2000 (4) SA 621 (C) para 32.
22 Islamic Unity Convention para 27.
23 Islamic Unity Convention para 28.
24 Islamic Unity Convention para 31.
25 (CCT42/04) [2005] ZACC 7; 2006 (1) SA 144 (CC); 2005 (8) BCLR 743 (CC) (27 May 2005) para 47.
26 See De Reuck v Director of Public Prosecutions (Witwatersrand Local Division) and Others (CCT5/03) [2003] ZACC 19; 2004 (1) SA 406 (CC); 2003
(12) BCLR 1333 (CC) (15 October 2003) para 48.
27 (CCT5/03) [2003] ZACC 19; 2004 (1) SA 406 (CC); 2003 (12) BCLR 1333 (CC) (15 October 2003).
28 Act 65 of 1996.
29 De Reuck paras 46–7.
30 De Reuck para 48.
31 De Reuck para 48.
32 De Reuck para 59.
33 De Reuck para 64–5.
34 De Reuck paras 71–9.
35 Lucas, M (2006) On gay porn Yale Journal of Law and Feminism 18(1):299–302 at 299.
36 Lucas (2006) 299. See also Sherman, JG(1995) Love speech: The social utility of pornography Stanford Law Review 47(4):661–706 at 702–3, where he

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 argues that ‘gay male pornography is a necessary tool in gay men’s struggle to attain sexual integrity’, and asserts that ‘[t]he relative importance of
pornography in the gay male imagination results from the suppression of other forms of gay expression: not only artistic expression but lived
interpersonal expression’.
37 Khumalo paras 22–4; South African Broadcasting Corporation Limited v National Director of Public Prosecutions and Others (CCT58/06) [2006] ZACC
15; 2007 (1) SA 523 (CC); 2007 (2) BCLR 167 (CC); [2006] JOL 18339 (CC) (21 September 2006) para 24; Print Media South Africa and Another v
Minister of Home Affairs and Another (CCT 113/11) [2012] ZACC 22; 2012 (6) SA 443 (CC); 2012 (12) BCLR 1346 (CC) (28 September 2012) para 54.
38 Government of the Republic of South Africa v Sunday Times Newspaper and Another 1995 (2) SA 221 (T) 227H–228A.
39 Khumalo para 24.
40 Sunday Times 227H–228A.
41 Bill B1.4 of 2010.
42 S 1.1.
43 S 1.1 of the Secrecy Bill.
44 S 1.1 of the Secrecy Bill.
45 1.1.
46 S 32 of the Secrecy Bill.
47 S 32 of the Secrecy Bill.
48 S 22.
49 De Vos, P (2011, 31 May) Let me tell you a secret … Constitutionally Speaking available at http://constitutionallyspeaking.co.za/let-me-tell-you-a-secret/
. For further criticism on the Bill, see generally Donnelly, L (2011, 23 June) Secrecy bill extension welcomed – concerns remain Mail & Guardian
Newspapers available at http://mg.co.za/article/2011-06-23-secrecy-bill-extension-welcomed-concerns-remain .
50 See Holomisa v Argus Newspaper 1996 (2) SA 588 (W) 855–56; Midi Television (Pty) Ltd v Director of Public Prosecutions (Western Cape) (100/06)
[2007] ZASCA 56; [2007] SCA 56 (RSA); [2007] 3 All SA 318 (SCA) (18 May 2007) para 6; South African Broadcasting Corporation para 42;
Johncom Media Investments Limited v M and Others (CCT 08/08) [2009] ZACC 5; 2009 (4) SA 7 (CC); 2009 (8) BCLR 751 (CC) (17 March 2009)
para 28.
51 (CCT58/06) [2006] ZACC 15; 2007 (1) SA 523 (CC); 2007 (2) BCLR 167 (CC); [2006] JOL 18339 (CC) (21 September 2006).
52 SABC para 29
53 SABC para 30.
54 SABC para 41.
55 SABC para 11.
56 SABC para 42. See also generally S v Shinga (Society of Advocates (Pietermaritzburg)) as Amicus Curiae), S v O’Connell and Others (CCT56/06,
CCT80/06) [2007] ZACC 3; 2007 (5) BCLR 474 (CC); 2007 (2) SACR 28 (CC) (8 March 2007).
57 (CCT38/07) [2008] ZACC 6; 2008 (5) SA 31 (CC); 2008 (8) BCLR 771 (CC) (22 May 2008) para 39.
58 Independent Newspapers paras 40–1.
59 Independent Newspapers para 43.
60 Independent Newspapers para 44.
61 Independent Newspapers para 45.
62 (CCT 08/08) [2009] ZACC 5; 2009 (4) SA 7 (CC); 2009 (8) BCLR 751 (CC) (17 March 2009).
63 70 of 1979.
64 Johncom Media Investments para 23.
65 Johncom Media Investments para 29.
66 Johncom Media Investments para 30.
67 Johncom Media Investments para 42.
68 (CCT 113/11) [2012] ZACC 22; 2012 (6) SA 443 (CC); 2012 (12) BCLR 1346 (CC) (28 September 2012).
69 Print Media South Africa para 20.
70 Print Media South Africa para 27.
71 Print Media South Africa para 17.
72 Print Media South Africa para 60.
73 Print Media South Africa para 98.
74 Print Media South Africa para 55.
75 Print Media South Africa para 56.
76 ICASA was created by the Independent Communications Authority of South Africa Act 13 of 2000. For a discussion on the role of the regulation of the
public broadcaster, see Tomaselli, KG (2008) Exogenous and endogenous democracy: South African politics and media International Journal of Press/
Politics 13(2):171–80 at 171.
77 There are therefore similarities between the regulation of electronic broadcasters and that of the print media although different bodies deal with
complaints relating to these categories of the media in terms of different Codes.
78 Islamic United Convention para 10.
79 Afri-Forum and Another v Malema and Others (20968/2010) [2011] ZAEQC 2; 2011 (6) SA 240 (EqC); [2011] 4 All SA 293 (EqC); 2011 (12) BCLR
1289 (EqC) (12 September 2011) para 29, citing Braun, S (2004) Democracy Off Balance: Freedom of Expression and Hate Propaganda Law in Canada
62.
80 See also Govindjee, A ‘Freedom of expression’ in Govindjee, A and Vrancken, P (2009) Introduction to Human Rights Law 122.
81 Act 4 of 2000.
82 S 1 of the PEPUDA defines prohibited grounds as ‘race, gender, sex, pregnancy. marital status, ethnic or social origin, colour, sexual orientation, age,
disability, religion, conscience, belief, culture, language and birth’ or any other ground where discrimination causes or perpetuates systemic disadvantage
or undermines human dignity or adversely affects the equal enjoyment of a person’s rights and freedoms in a serious manner that is comparable to
discrimination on a listed ground.
83 See De Vos, P (2010) On ‘Shoot the Boer’, hate speech and the banning of struggle songs 11.
84 (2010 (7) BCLR 729 (EqC)) [2010] ZAEQC 2; 02/2009 (15 March 2010) para 2.
85 Sonke Gender Justice Network para 17(b)(x).
86 De Vos (2010) 12.
87 (20968/2010) [2011] ZAEQC 2; 2011 (6) SA 240 (EqC); [2011] 4 All SA 293 (EqC); 2011 (12) BCLR 1289 (EqC) (12 September 2011).
88 Afri-Forum paras 109–11.
89 Afri-Forum para 93.
90 (44/2009) [2010] ZASCA 41; 2010 (4) SA 210 (SCA); [2010] 3 All SA 497 (SCA) (30 March 2010) para 7.
91 Afri-Forum paras 7–8.
92 Afri-forum paras 35–6.

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 93 De Vos, P (2011, 12 September) Malema judgment: A re-think on hate speech needed Constitutionally Speaking available at http:/
/constitutionallyspeaking.co.za/malema-judgment-a-re-think-on-hate-speech-needed. See also Modiri, J (2013) Race, realism and critique: The politics of
race and Afri-forum v Malema in the Equality Court South African Law Journal 130(2):274–93; Brown, J (2012) Judges’ history: On the use of history in
the Malema judgment South African Journal on Human Rights 28(2):316–27.
94 Smuts, D and Westcott, S (eds) (1999) The Purple Shall Govern: A South African A to Z of Nonviolent Action.
95 See Berger, JM (2001) Litigation strategies to gain access to treatment for HIV/AIDS: The case of South Africa’s Treatment Action Campaign Wisconsin
International Law Journal 20:595–614 at 596; Berger, JM and Kapczynski, A ‘The story of the TAC case: The potential and limits of socio-economic
rights litigation in South Africa’ in Hurwitz, DR and Satterthwaite, ML (eds) (2009) Human Rights Advocacy Stories.
96 Berger and Kapczynski (2009) 4.
97 (CCT 112/11) [2012] ZACC 13; 2012 (8) BCLR 840 (CC); [2012] 10 BLLR 959 (CC); (2012) 33 ILJ 1593 (CC); 2013 (1) SA 83 (CC) (13 June 2012)
para 61.
98 Woolman, S ‘Assembly, demonstration and petition’ in Currie, I and De Waal, J (2013) The Bill of Rights Handbook 6th ed 377.
99 BVerfGE 73, 206.
100 BVerfGE 73, 206 at 360.
101 BVerfGE 73, 206 at 361.
102 Rautenbach, IM and Malherbe, EFJ (2012) Constitutional Law 6th ed 376.
103 Rautenbach and Malherbe (2012) 376.
104 Act 205 of 1993.
105 S 1 of the Regulation of Gatherings Act.
106 S 1 of the Regulation of Gatherings Act.
107 Woolman (2013) 386.
108 Act 66 of 1995.
109 S 69(3) of the LRA.
110 (6467/2010) [2010] ZAKZDHC 38; 2011 (1) BCLR 81 (KZD); [2011] 1 All SA 537 (KZD); (2010) 31 ILJ 2539 (KZD) (3 September 2010).
111 Growthpoint Properties para 46.
112 Growthpoint Properties paras 47–8.
113 Growthpoint Properties para 57.
114 Growthpoint Properties para 58
115 Growthpoint Properties para 59.
116 Growthpoint Properties para 60
117 Growthpoint Properties para 61.
118 Rautenbach and Malherbe (2012) 377.
119 See Free State Petitions Act 2 of 2008; Gauteng Petitions Act 5 of 2002; KwaZulu-Natal Petitions Act 4 of 2003; Limpopo Petitions Act 4 of 2003;
Mpumalanga Petitions Act 6 of 2000; Northern Cape Petitions Act 8 of 2009; North West Petitions Act 2 of 2010.
120 Act 17 of 1956.
121 Act 74 of 1982.
122 For a comprehensive discussion of the operation of the Regulation of Gatherings Act, see Currie and De Waal (2013) 381–3.
123 S 9(2)(e) of the Gatherings Act. See also Memeza, M (2006) A critical review of the implementation of the Regulation of Gatherings Act 205 of 1993: A
local government and civil society perspective available at http://www.fxi.org.za.
124 De Vos, P (2009) Freedom of assembly and its limits Constitutional Court: Without Prejudice 9(8):4–5.
125 S 3(5)(c).
126 S 4(1).
127 S 4(4)(b).
128 S 4(4)(c) of the Gatherings Act.
129 Inside Rustenburg’s banned protests (2013, 7 March) available at http://www.ru.ac.za/facultyofhumanities/latestnews/name,79323,en.html.
130 S 3(2)
131 S 11(1).
132 SATAWU para 37.
133 SATAWU para 38.
134 SATAWU para 39.
135 SATAWU para 43.
136 SATAWU paras 4–5.
137 SATAWU paras 51–9.
138 SATAWU paras 34 and 94.
139 New National Party v Government of the Republic of South Africa and Others (CCT9/99) [1999] ZACC 5; 1999 (3) SA 191; 1999 (5) BCLR 489 (CC)
(13 April 1999) para 10; Minister of Home Affairs v National Institute for Crime Prevention and the Re-Integration of Offenders (NICRO) and Others
(CCT 03/04) [2004] ZACC 10; 2005 (3) SA 280; 2004 (5) BCLR 445 (CC) (3 March 2004) para 47; Ramakatsa and Others v Magashule and Others
(CCT 109/12) [2012] ZACC 31; 2013 (2) BCLR 202 (CC) (18 December 2012) para 64.
140 (CCT 109/12) [2012] ZACC 31; 2013 (2) BCLR 202 (CC) (18 December 2012) para 64.
141 Ramakatsa para 65.
142 In Richter v The Minister for Home Affairs and Others (CCT03/09, CCT 09/09) [2009] ZACC 3; 2009 (3) SA 615 (CC); 2009 (5) BCLR 448 (CC)
(12 March 2009) and AParty and Another v The Minister for Home Affairs and Others, Moloko and Others v The Minister for Home Affairs and Another
(CCT 06/09, CCT 10/09) [2009] ZACC 4; 2009 (3) SA 649 (CC); 2009 (6) BCLR 611 (CC) (12 March 2009), the Constitutional Court was called on to
determine the voting rights of non-resident citizens.
143 Rautenbach and Malherbe (2012) 382.
144 Ramakatsa para 71. S 197(3) of the Constitution provides that no employee of the public service may be favoured or prejudiced because he or she
supports a particular political party or cause.
145 Ramakatsa para 71.
146 Ramakatsa para 72.
147 Ramakatsa para 73.
148 ANC National Disciplinary Committee: Press Statement (2012, February) Public Announcement on the Disciplinary Hearings of F Shivambu, J Malema
and S Magaqa available at http://www.anc.org.za/show.php?id=9414.
149 There are several references to political parties in the Constitution. For example, s 47(3)(c) states that a member of the NA who ‘ceases to be a member of
the party that nominated that person as a member of the Assembly’ will lose his or her membership of the Assembly. S 57(2)( b) similarly allows minority
parties to participate in the proceedings of the NA in a manner consistent with democracy.

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 150 Act 73 of 1998.
151 Act 51 of 1996.
152 Ss 15, 16 and 17 of the Electoral Commission Act as well as ss 26–31 of the Electoral Act.
153 Ss 26(b) and 27 of the Electoral Act.
154 S 99 of the Electoral Act.
155 Liberal Party v The Electoral Commission and Others (CCT 10/04) [2004] ZACC 1; 2004 (8) BCLR 810 (CC) (5 April 2004).
156 (CCT 10/06) [2006] ZACC 1; 2006(3) SA 305 (CC); 2006(5) BCLR 579 (CC) (24 February 2006) para 31.
157 Act 27 of 2000.
158 African Christian Democratic Party para 27.
159 African Christian Democratic Party para 21.
160 African Christian Democratic Party para 33.
161 Act 103 of 1997.
162 Lowry, MP (2008) Legitimizing elections through the regulation of campaign financing: A comparative constitutional analysis and hope for South Africa
Boston College International and Comparative Law Review 31(2):185–212 at 185.
163 Steytler, N ‘The legislative framework governing party funding in South Africa’ in Matlosa, K (2004) The Politics of State Resources: Party Funding in
South Africa 59 and 64. For a discussion regarding the funding of political parties, see generally Tshitereke, C (2002) Securing democracy: Party finance
and party donations – the South African challenge Institute for Security Studies 63:1–12.
164 Act 2 of 2000.
165 (9828/03) [2005] ZAWCHC 30; 2005 (5) SA 39 (C) [2005] 3 All SA 45 (C) (20 April 2005) para 50.
166 IDASA para 53. S 50(1)(a) of the PAIA provides that ‘[a] requester must be given access to any record of a private body if: (a) that record is required for
the exercise or protection of any right; (b) that person complies with the procedural requirements in this Act relating to a request for access to that record;
and (c) access to that record is not refused in terms of any ground for refusal contemplated in Chapter 4 of this Part’.
167 IDASA para 71.
168 IDASA para 71.
169 Lowry (2008) 189.
170 In this regard, see Sarakinsky, I (2007) Political party finance in South Africa: Disclosure versus secrecy Democratization 14(1):111–28 at 120–1.
171 (CCT9/99) [1999] ZACC 5; 1999 (3) SA 191; 1999 (5) BCLR 489 (13 April 1999).
172 New National Party para 12. In the same case the Constitutional Court also held that unlike the right to vote, all South African citizens irrespective of
their age have a right to free, fair and regular elections (para 12).
173 New National Party para 118 where O’Regan stated: ‘Unlike some of the other rights in chapter 2 of the Constitution, the primary obligation which
section 19(2) and (3) impose upon government is not a negative one, requiring government to refrain from conduct which could cause an infringement of
the right, but a positive one, requiring government to take positive steps to ensure that the right is fulfilled.’
174 See New National Party paras 13–14; August and Another v Electoral Commission and Others (CCT8/99) [1999] ZACC 3; 1999 (3) SA 1; 1999 (4)
BCLR 363 (1 April 1999) para 16; NICRO para 28; Richter para 54.
175 New National Party para 16.
176 S 181(3) provides that ‘[o]ther organs of state, through legislative and other measures, must assist and protect [the Chapter Nine Institutions] to ensure the
independence, impartiality, dignity and effectiveness of these institutions’ and s 181(4) provides that ‘[n]o person or organ of state may interfere with the
functioning of [the Chapter Nine Institutions]’. The Electoral Commission is also accountable to the NA, and must report on its activities and the
performance of its functions at least once a year (s 181(5)).
177 New National Party para 98.
178 New National Party para 99.
179 New National Party para 12.
180 (CCT8/99) [1999] ZACC 3; 1999 (3) SA 1; 1999 (4) BCLR 363 (1 April 1999).
181 S 5(1)(e) of the Electoral Commission Act.
182 August para 33.
183 August para 17.
184 New National Party para 120.
185 (CCT03/09, CCT 09/09) [2009] ZACC 3; 2009 (3) SA 615 (CC); 2009 (5) BCLR 448 (CC) (12 March 2009) para 53.
186 In New National Party para 6, the Constitutional Court held that these three requirements are derived from s 19(3) of the Constitution read together with
s 46(1)(b) and 46(1)(c). S 46(1)(b) provides that ‘the National Assembly consists of no fewer than 350 and no more than 400 women and men elected as
members in terms of an electoral system that is based on the national common voters roll’ and s 46(1)(c) provides that ‘the National Assembly consists of
no fewer than 350 and no more than 400 women and men elected as members in terms of an electoral system that provides for a minimum voting age of
18 years’.
187 New National Party para 15.
188 Rautenbach and Malherbe (2012) 89 fn 56.
189 The fact that prisoners who were serving life sentences without the option of a fine were excluded from voting was declared unconstitutional by the
Constitutional Court in NICRO.
190 The rendering of assistance by electoral officials at the request of a voter is also subject to the secrecy of the vote. S 39 of the Electoral Act provides that
assistance may be given to voters who are unable to read, are blind or visually impaired. For a discussion of the plight of the visually impaired, see
generally Maseko, TW (2009) The right of blind and visually impaired citizens to vote in secret: Is there a duty to do more? SA Public Law 24(2):623–39.
191 S 6(1) of the Electoral Act provides that ‘[a]ny South African citizen in possession of an identity document may apply for registration as a voter’ and s 1
of the Act defines an identity document as a bar-coded identity card issued in terms of the Identification Act 68 of 1997 or a temporary identification
certificate issued in terms of the Identification Act.
192 New National Party para 19.
193 New National Party para 24.
194 New National Party para 26.
195 New National Party para 20.
196 New National Party para 23.
197 New National Party para 43.
198 New National Party para 122.
199 New National Party para 122.
200 See August; NICRO; Richter; AParty.
201 (CCT 03/04) [2004] ZACC 10; 2005 (3) SA 280 (CC); 2004 (5) BCLR 445 (CC) (3 March 2004).
202 The amendments to the Electoral Act effecting these limitations were made shortly before the 2004 general election when Parliament passed the Electoral
Laws Amendment Act 34 of 2003.

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 203 S 8(2)(f) of the Electoral Act prohibited convicted prisoners who were ‘serving a sentence of imprisonment without the option of a fine’ from registering
as voters and s 24B(2) prohibited convicted prisoners who were ‘serving a sentence of imprisonment without the option of a fine’ and who were already
on the voters roll from voting if they were in prison on the day of the election.
204 Act 34 of 2003.
205 NICRO para 16.
206 NICRO para 49.
207 2002 SCC 68.
208 NICRO para 58.
209 NICRO para 66.
210 NICRO para 67.
211 Richter para 56.
212 Richter para 57.
213 Richter para 68.
214 Richter para 69.
215 Richter para 76.
216 Richter para 77.
217 Richter para 78.

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 Administrative justice, access to information, access
to courts and labour rights
All rights reserved. May not be reproduced in any form without permission from the publisher, except fair uses permitted under U.S. or applicable copyright law.

15.1 Introduction
15.2 The right to just administrative action
15.2.1 Introduction
15.2.2 The relationship between the Constitution, the Promotion of Administrative Justice Act
3 of 2000 and the common law
15.2.3 Legislative, executive and judicial actions
15.2.4 The principle of legality
15.2.5 The main provisions of the PAJA
15.2.5.1 What constitutes administrative action
15.2.5.2 The key obligations imposed by the PAJA
15.2.5.2.1 Introduction
15.2.5.2.2 Lawful administrative action
15.2.5.2.3 Reasonable administrative action
15.2.5.2.4 Procedurally fair administrative action
15.2.5.2.5 The right to be given reasons for an administrative action
15.3 The right of access to information
15.3.1 Introduction
15.3.2 Interpretation of the Promotion of Access to Information Act 2 of 2000
15.3.2.1 The purpose of the PAIA
15.3.2.2 The regulation of access to information by the PAIA
15.3.2.3 The question of a ‘judicial peek’ at refused records
15.4 The right of access to the courts
15.4.1 Introduction
15.4.2 Threshold question: can the dispute in question be resolved by the application of law?
15.4.3 Access to courts and other forums
Copyright 2014. Oxford University Press Southern Africa.

15.4.3.1 A positive obligation on the state

15.4.3.2 The prohibition of self-help
15.4.3.3 Does a commission of enquiry constitute an independent and impartial
tribunal?
15.5 Labour relations
15.5.1 Introduction
15.5.2 The scope and ambit of section 23 of the Constitution
15.5.3 The right to fair labour practices
15.5.3.1 Introduction
15.5.3.2 Unfair dismissals in terms of the Labour Relations Act 66 of 1995
15.5.3.3 Unfair labour practices in terms of the LRA
15.5.3.4 Unfair labour practices in terms of section 23(1) of the Constitution
15.5.4 The right of every worker to form and join a trade union
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AN: 948967 ; Brand, Danie, Freedman, Warren, De Vos, Pierre.; South African Constitutional Law in Context
Account: s5341985.main.ehost 429
 15.5.5 The right of every worker to participate in the activities and programmes of a trade
union
15.5.6 The right of every worker to strike
15.5.7 The right to engage in collective bargaining
15.5.7.1 Introduction
15.5.7.2 The right to engage in collective bargaining and the LRA
15.5.7.3 The right to engage in collective bargaining and the Constitution
Summary

15.1 Introduction
Certain rights are of particular importance because they enhance the quality of a democracy and the conditions under which
people live in that democracy. Although these rights are not political rights per se, they create conditions within which
individuals can exercise many of their other rights in an effective manner. Such rights are closely aligned with the value of human
dignity. This is because they take as their starting point the idea that the individual human dignity of each person can be
effectively protected only if legal rules and regulations enhance the ability of each individual to make important life choices
despite the fact that they may not hold as much power as the state or private bodies. These rights therefore aim to equal the
playing field by requiring the powerful to adhere to pre-announced rules, to act in a relatively transparent manner, to share
information and to provide individuals with access to courts. This access to courts will assist individuals to enforce these rights as
well as the other rights needed to promote their well-being and for their dignity to be fully respected. In this chapter we discuss
some of these rights, including the right to fair administrative action, the right of access to information, the right of access to
courts and labour rights.

15.2 The right to just administrative action

15.2.1 Introduction
In most modern societies the law confers a wide range of discretionary powers on public officials. These discretionary powers
allow public officials, for example, to grant a person a pension, a social grant, a tender or a tax exemption. They also give public
officials the power to issue building permits, fishing licences, passports and so on.
While these sorts of discretionary powers have to be granted to government officials to ensure that modern government
works effectively, the exercise of such powers may also be abused to the detriment of ordinary people who rely on the state to
deal fairly with such matters. To prevent abuse, the right to administrative justice guaranteed in section 33 of the Constitution
provides that these powers must be exercised in a manner that is lawful, reasonable and procedurally fair.
This right must be viewed against the context of South Africa’s apartheid past. During the apartheid era, government officials
routinely abused their discretionary powers. These discretionary powers were constantly expanded by legislation, especially in
the latter years of the apartheid regime. At the same time, the court’s common law authority to review the exercise of these
powers was often restricted or ousted.1 Even where the courts’ jurisdiction was not ousted, apartheid-era courts sometimes
appeared reluctant to exercise their power of administrative review.2
The Constitution seeks to prevent a recurrence of this abuse of power. It therefore includes a right to just administrative
action in section 33 of the Bill of Rights. The primary purpose of the right to administrative justice is to ensure that the
administrative powers given to public officials are exercised in a procedurally fair manner and that the outcome of the decision
is lawful and reasonable. It is thus a right which seeks to ensure proper processes are followed before administrative decisions
are made and that those decisions are lawful and reasonable.
Apart from granting courts the power to review and set side decisions that are unreasonable, unlawful and procedurally
unfair, the right to administrative justice also requires public officials to provide reasons for administrative decisions that
adversely affect rights. The duty to supply reasons is intended to ensure that public officials properly apply their minds before
making a decision. This particular provision of the right contributes to better decision making.
Baxter divides administrative law into general and particular aspects. Specific administrative law refers to the principles of
law that are applicable to discrete areas of administration, for example education, the environment, the police, the revenue service
and so on. In most instances, an enabling Act regulates these areas, as well as regulations promulgated in terms of the Act and

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 decisions interpreting the Act and the regulations. General administrative law refers to the principles of law that are applicable
to all administrative entities. Most textbooks deal with the general principles of administrative law that are applicable to the entire
administration.3
Prior to 1994, the legal principles that were applicable to all administrative entities, in other words, general administrative
law, were drawn largely from the common law. The common law afforded the courts the inherent power to set aside decisions
that were procedurally unfair, that failed to comply with the requirements of the enabling statute or that were so grossly
unreasonable that some irregularity could be inferred. One of the major shortcomings of the common law, however, was that it
imposed no general obligation on the public official to provide reasons for his or her decision.
In 1994, momentous changes occurred with the promulgation of the interim Constitution. Section 24 of the interim
Constitution entrenched the right to administrative justice. It afforded every person the right to lawful and procedurally fair
administrative action in certain circumstances. In addition, there was an obligation to provide reasons when rights or interests
were affected. Apart from these rights, ‘every person’ was also given the right to ‘administrative action which is justifiable in
relation to the reasons given for it where any of his or her rights is affected or threatened’ (our emphasis). 4
The final Constitution retained an administrative justice clause in section 33 of the Bill of Rights, but the wording of the
section is slightly different from the wording in section 24 in the interim Constitution. Section 33 of the Constitution specifically
protects four categories of administrative justice rights. It protects the right to lawful, reasonable and procedurally fair
administrative action 5 and affords everyone whose rights have been adversely affected by administrative action the right to be
given written reasons.6

PAUSE FOR REFLECTION

The law of administrative justice a hybrid of the old and the new
Kohn and Corder explain the context within which the law of administrative justice must be understood by
explaining that the South African law is a ‘curious hybrid of the old and the new’.7 Despite its common law
roots which predate the 1994 Constitution, it is a field of law that epitomises the negotiated constitutional
‘revolution’.8 Chaskalson P explained the implications of this transformation as follows in the decision of
Pharmaceutical Manufacturers Association of South Africa and Another: In re Ex parte President of the
Republic of South Africa and Others:

[A]dministrative law … occupies a special place in our jurisprudence … It is built on

constitutional principles … Prior to the coming into force of the interim Constitution, the
common law was “the main crucible” for the development of these principles of constitutional
law. The interim Constitution … was a legal watershed. It shifted constitutionalism, and with it all
aspects of public law, from the realm of the common law to the prescripts of a written
constitution which is the supreme law.9

As Kohn and Corder point out, prior to this shift, South African administrative law was entirely based on the
common law and bore all the hallmarks of its parent English system.

In particular, thanks in large part to the influence of the English constitutional lawyer, Albert
Venn Dicey, it rested upon the twin pillars of parliamentary sovereignty and the rule of law with
its obverse facet, the ultra vires doctrine, which operated as the organising rationale of
administrative law. Along with this Westminster inheritance, came a deep distrust of government
and discretionary power and a concomitantly heavy reliance on judicial review of administrative
action as the principal means of checking this power. Unfortunately, transplanted into the South
African context, these two key organising principles of English constitutional law failed to
complement one another. Under apartheid, parliamentary sovereignty came to be associated
with rule by law, rather than a substantive notion of the rule of law pursuant to which law is
insulated from politics and judges serve as impartial and independent guardians of human
rights. The separation of powers did not exist as a practical reality and as a result, parliamentary
sovereignty came to be coupled with judicial timidity as the hamstrung courts struggled to find
ways of controlling public power, which was largely abused for racial ends.10

Because of this context, the role of administrative law during apartheid is ambiguous. While it was
‘underdeveloped and functioned in an undemocratic system that was antagonistic to fundamental rights,

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 was secretive and unaccountable’,11 it was also used by lawyers in certain cases to challenge the
unbridled exercise of power by the authoritarian state.

Apart from the four categories of administrative justice rights, the right to lawful, reasonable and procedurally fair administrative
action and the right to be given written reasons for a decision, section 33 also provides that national legislation has to be enacted
to give effect to the right to administrative justice and that this legislation has to achieve three objectives:
• It has to ensure and provide for the review of administrative action by a court or other independent tribunal.
• It has to impose a duty on the state to give effect to the rights.
• It has to promote an efficient administration.12

The primary purpose of the third objective is to ensure that an appropriate balance is maintained so that the state is not unduly
burdened by administrative requirements which could seriously inhibit its core functions.
Unlike most of the other rights in the Bill of Rights, section 33 did not come into operation when the rest of the Constitution
did on 3 February 1997. This is because the transitional provisions in section 23 of Schedule 6 provided that Parliament had to
enact the national legislation referred to in section 33(3) within three years of the commencement of the Constitution, namely by
3 February 2000. In addition, it also provided that during this period, section 33 would be suspended and the right to
administrative justice guaranteed in section 24 of the interim Constitution (slightly reworded) would remain in force.
The national legislation referred to in section 33(3) is the Promotion of Administrative Justice Act (PAJA). 13 This Act was
passed on 3 February 2000 and, with the exceptions of section 4 and section 10, it came into operation on 30 November 2000.
Sections 4 and 10 came into operation on 31 July 2002.

15.2.2 The relationship between the Constitution, the Promotion of Administrative Justice
Act 3 of 2000 and the common law
Prior to the transition to democracy, the judicial review of administrative action was governed largely by common law principles
and rules. When the interim Constitution and later the Constitution came into operation, however, these common law rules and
principles were incorporated into the Constitution.
The Constitutional Court referred to this process in the Pharmaceutical Manufacturers case, when it held that:

[t]he common law principles that previously provided the grounds for judicial review of public power
have been subsumed under the Constitution and, insofar as they might continue to be relevant to
judicial review, they gain their force from the Constitution. In the judicial review of public power, the
two are intertwined and do not constitute separate concepts.14

An important consequence of the incorporation of the common law principles and rules governing judicial review of
administrative action is that they no longer have a separate existence. Instead, these common law principles and rules have
become a part of constitutional law. As stated by the Constitutional Court:

There are not two systems of law … [but] only one … which is shaped by the Constitution … and all
law, including the common law, derives its force from the Constitution and is subject to constitutional
control.15

The constitutionalisation of administrative law meant that before the PAJA came into operation, challenges to the validity of
administrative action involved the direct application of the right to administrative justice first in terms of the interim Constitution
and subsequently in terms of the Constitution. It is important to note, however, that after the Constitution was enacted but before
the PAJA came into operation, the directly enforceable right to administrative justice was not section 33, but rather the rights
contained in section 23(2)(b) of Schedule 6 of the Constitution.
When the PAJA was finally enacted in 2000, section 33 became operative. Section 33 of the Constitution provides as
follows:

(1) Everyone has the right to administrative action that is lawful, reasonable and procedurally fair;
(2) Everyone whose rights have been adversely affected by administrative action has the right to be
given written reasons.
(3) National legislation must be enacted to give effect to these rights, and must –
( a) provide for the review of administrative action by a court or, where appropriate, an
independent and impartial tribunal;

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 ( b) impose a duty on the state to give effect to the rights in subsections (1) and (2); and
(c) promote an efficient administration.

In terms of the principle of subsidiarity, however, a litigant challenging the validity of administrative action first has to turn to the
provisions of the PAJA and would not normally be able to rely directly on the Constitution. The fact that the PAJA is now the
primary mechanism for asserting administrative justice rights was confirmed by the Constitutional Court in its judgment in
Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others .16
In this case, Chaskalson CJ held that:

PAJA is the national legislation that was passed to give effect to the rights contained in section 33. It
was clearly intended to be, and in substance is, a codification of these rights. It was required to cover
the field and it purports to do so. A litigant cannot avoid the provisions of PAJA by going behind it,
and seeking to rely on s 33(1) of the Constitution or the common law. That would defeat the purpose of
the Constitution in requiring the rights contained in s 33 to be given effect by means of national
legislation.17

Despite Chaskalson CJ’s statement that ‘[a] litigatant cannot avoid the provisions of PAJA by going behind it, and seeking to rely
on s 33(1) of the Constitution or the common law’, section 33 is not entirely irrelevant. This is because section 33 still exists as a
free-standing constitutional right and can be relied on in certain exceptional cases, 18 namely to challenge the validity of the
provisions of the PAJA itself; to challenge legislation that is alleged to infringe the right to just administrative action; and,
indirectly, to interpret the provisions of the PAJA.19
In much the same way that section 33 is not entirely irrelevant, neither is the common law. This is because the common law
continues to have direct application in cases where neither the Constitution nor the PAJA apply, for example when a private
association such as a club, a church or a political party exercises disciplinary powers over its members. 20 These sorts of cases fall
outside the PAJA’s scope because it applies only to the exercise of public power and not to the exercise of private power. 21 In
addition, the common law principles of administrative law, developed over many centuries, have an indirect influence on
administrative law in that they are used as a source informing the interpretation of the various provisions of both the PAJA and
section 33.22

PAUSE FOR REFLECTION

The principle of subsidiarity

There are similarities between the relationship between section 9 of the Constitution and the Promotion of
Equality and Prevention of Unfair Discrimination Act (PEPUDA),23 discussed in chapter 12, on the one
hand, and the relationship between section 33 and the provisions of the PAJA, on the other. In both cases,
the principle of subsidiarity requires a litigant to rely on the legislation and not on the constitutional right
directly unless the litigant is challenging the constitutionality of the subsidiary Act or other legislation or
using the Constitution to help interpret the Act.
However, in the case of section 33 and the PAJA, the situation is complicated further by the fact that
before 1994, administrative law was largely a part of the common law developed by the judiciary. These
common law principles may assist courts to interpret the provisions of the PAJA. There are no similar
common law principles of equality that predate the Constitution and it is therefore arguably less complicated
to interpret the PEPUDA than it is to interpret the PAJA.
Whenever considering an administrative law issue, we must first ask whether the PAJA is applicable
and if so, how it must be interpreted having regard to the Constitution and to common law principles. If the
PAJA is not applicable and if section 33 is not invoked to challenge the constitutionality of legislation, this
does not mean that the non-administrative exercise of public power cannot be reviewed by a court. The
courts can still review such exercises of power under the principle of legality as part of a section 1 analysis.

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 15.2.3 Legislative, executive and judicial actions
Today, every exercise of public power is to some extent justiciable under the Constitution even if it does not entail administrative
action as defined by the PAJA.24 However, the nature of the legal principles that apply to the review of the exercise of public
power will differ depending on the nature of the public power. Administrative action – as defined in the PAJA – will be reviewed
under a different standard than the exercise of power that is not classified as administrative action. It is therefore important to
understand what constitutes administrative action and to distinguish it from other forms of the exercise of power.
In this regard, it is important to note that the exercise of public power can be divided into three categories, namely legislative
actions, executive actions and judicial actions. This division is based on the separation of powers. When the President assents to
and signs an Act of Parliament, for example, he or she is performing a legislative action. 25 When the President appoints the
members of his or her Cabinet, however, he or she is not performing a legislative action, but rather an executive action. 26
Similarly, when a judge imposes a sentence on a convicted person, he or she is performing a judicial action. 27 When a judge
presides over the election of the President, however, he or she is not performing a judicial action, but rather a legislative action. 28
Executive actions may also be divided into those executive actions that are administrative actions and those executive actions
that are not. When the President exercises his or her power under the Constitution to appoint a commission of enquiry, for
example, he or she is performing an executive action.29 When, however, the President exercises his or her powers under the
Commissions Act 30 to confer on a commission the power to summon and question witnesses, he or she is performing an
administrative action.31
It is important to distinguish administrative actions from all other exercises of public power. This is because section 33 of the
Constitution applies only to administrative actions and not to any of the other exercises of public power listed above.
Unfortunately, it is not always easy to draw this distinction. This is because there is no clear line demarcating administrative
actions from all other exercises of public power. The Constitutional Court, however, has identified certain criteria that must be
taken into account when making this decision. The Court identified some of these criteria in its judgment in President of the
Republic of South Africa and Others v South African Rugby Football Union and Others (SARFU III) .32
In this case the President appointed a commission of enquiry in terms of section 84(2)( f) of the Constitution to investigate the
administrative and financial affairs of the South African Rugby Football Union (SARFU). SARFU then applied for an order
setting aside the President’s decision on the grounds that it was an administrative action and that in terms of the right to
administrative justice, he had to follow a fair procedure and give SARFU a hearing before he made his decision to appoint the
commission. SARFU argued that the President did not give them a hearing before he made his decision and his decision,
therefore, was unconstitutional and invalid. The Constitutional Court rejected this argument.
In arriving at its decision, the Constitutional Court stated that the key issue it had to determine was whether the President’s
decision to appoint a commission of enquiry was, in fact, an administrative action. In this respect, the Constitutional Court began
by stating that the Constitution confers a variety of functions on the executive, including the responsibility for preparing and
initiating legislation, for developing policy, for implementing legislation and for implementing policy. The Court emphasised that
the test for determining whether conduct constitutes administrative action must not focus on whether the action concerned is
performed by a member of the executive arm of government:

What matters is not so much the functionary as the function. The question is whether the task itself is
administrative or not. … The focus of the enquiry as to whether conduct is ‘administrative action’ is
not on the arm of government to which the relevant actor belongs, but on the nature of the power he or
she is exercising.33

Where the President and Cabinet members in the national sphere (and Premiers and Members of Executive Councils in the
provincial sphere) ensure the implementation of legislation, they are exercising an administrative function which is justiciable.
This will ordinarily constitute administrative action within the meaning of section 33. However, Cabinet members also have other
constitutional responsibilities such as the responsibility for developing policy and initiating legislation. When they do so, they are
not engaged in administrative action as encompassed by section 33 of the Constitution. 34 The closer the power is to the
implementation of legislation, the more likely it is to be classified as administrative action. The closer the power is to the
formulation of policy, the less likely it is to be classified as administrative action. As the Constitutional Court explained:

A series of considerations may be relevant to deciding on which side of the line a particular action falls.
The source of the power, though not necessarily decisive, is a relevant factor. So too is the nature of the
power, its subject matter, whether it involves the exercise of a public duty, and how closely it is related
on the one hand to policy matters, which are not administrative, and on the other to the
implementation of legislation, which is. While the subject matter of a power is not relevant to

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 determine whether constitutional review is appropriate, it is relevant to determine whether the exercise
of the power constitutes administrative action for the purposes of section 33. Difficult boundaries may
have to be drawn in deciding what should and what should not be characterised as administrative
action for the purposes of section 33. These will need to be drawn carefully in the light of the provisions
of the Constitution and the overall constitutional purpose of an efficient, equitable and ethical public
administration. This can best be done on a case by case basis.35

Applying these principles, the Constitutional Court concluded that the appointment of a commission of enquiry was an aid to
policy formulation as it enables the President to obtain advice and information. It was not the implementation of legislation but
was the exercise of a constitutional power. Hence, the decision to appoint the commission of enquiry was not administrative
action and was therefore not challengeable under the deemed section 33 of the Constitution. 36
Importantly, however, the Constitutional Court went on to state that simply because the President’s conduct did not constitute
administrative action, this did not mean that there are no constraints on the President when he or she exercises a public power.
Instead, the Court stated further, the Constitution imposes significant constraints on the President. Among these are the
requirements that the President must exercise his or her powers personally, that any such exercise must be recorded in writing and
signed, and that the President must act in good faith and must not misconstrue his or her powers. In addition, the President must
not infringe any provision of the Bill of Rights or the principle of legality which is implicit in the rule of law. 37
Following this judgment, the principle of legality has become an alternative means of challenging any exercise of public
power that cannot be classified as administrative action. We have already touched on this principle and its application to the
exercise of power by the President in chapter 5 of this book. To recap, in these judgments, the Constitutional Court has held that
the principle of legality provides that a functionary must act within his or her power. This is known as the principle of authority.
In addition, any decision taken by the functionary must, from an objective perspective, be rationally related to the purpose for
which the power is given. This is known as the principle of rationality.

15.2.4 The principle of legality

As discussed above, the principle of legality, which forms a part of the rule of law, has become an alternative means of
challenging any exercise of public power that cannot be classified as administrative action. In Democratic Alliance v eThekwini
Municipality,38 the Supreme Court of Appeal (SCA) set out the scope and ambit of the principle of legality. In this case, the SCA
held that:

[t]he fundamental principle, deriving from the rule of law itself, is that the exercise of all public power,
be it legislative, executive or administrative, is only legitimate when lawful (see eg Fedsure para 56).
This tenet of constitutional law which admits of no exception, has become known as the principle of
legality (see eg Cora Hoexter Administrative Law in South Africa 117). Moreover, the principle of
legality not only requires that the decision must satisfy all legal requirements, it also means that the
decision should not be arbitrary or irrational (see eg Pharmaceutical Manufacturers of South Africa
and Another: In re Ex parte President of the Republic of South Africa and Others 2000 ZACC 1 (2) SA
674 (CC) at para 85; Affordable Medicines Trust and Others v Minister of Health and Another 2005
ZACC 3; 2006 (3) SA 247 (CC) at paras 73–75).39

It is important to distinguish between the rules applicable to the judicial review of the exercise of public power under the
principle of legality and judicial review of the exercise of public power deemed to be administrative action. As the rules set out
above clearly indicate, the constraints imposed on the exercise of public power by the principle of legality are not as rigorous as
those imposed on administrative actions by the right to administrative justice. The most significant differences are that the right to
administrative justice provides that administrative actions must be reasonable and procedurally fair, while the principle of legality
simply provides that all other exercises of public power must rational. In other words, the principle of legality does not provide
that all other exercises of public power have to be reasonable or procedurally fair.
There are a number of reasons why the constraints imposed on legislative, executive and judicial actions by the principle of
legality are not nearly as rigorous as those imposed on administrative actions by the right to administrative justice. One of these
reasons is that legislative and executive decisions are usually made by democratically elected representatives and are based on
political considerations. Given their political nature, the courts are reluctant to overstep their authority by subjecting these
decisions to invasive standards of review.
In Democratic Alliance v President of South Africa and Others, for example, the Constitutional Court held that:

[t[he rule that executive decisions may be set aside only if they are irrational and may not ordinarily be
set aside because they are merely unreasonable or procedurally unfair has been adopted precisely to
ensure that the principle of the separation of powers is respected and given full effect. If executive

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 decisions are too easily set aside, the danger of courts crossing the boundaries into the executive sphere
would loom large. As O’Regan J helpfully explained:

A central principle of the United States jurisprudence has been to impose different levels of
scrutiny on different categories of legislative classification. The most stringent level of scrutiny is
reserved for classifications based on race or nationality, or those that invade fundamental rights.
Such classifications are almost inevitably considered to be a breach of the Fourteenth Amendment.
An intermediate level of scrutiny is applied to classifications concerning gender or socio-economic
rights. The third level of scrutiny requires merely that a classification be shown to have a rational
relationship to the legislative purpose.

It is evident that a rationality standard by its very nature prescribes the lowest possible threshold for
the validity of executive decisions: it has been described by this Court as the ‘minimum threshold
requirement applicable to the exercise of all public power by members of the Executive and other
functionaries’. And the rationale for this test is ‘to achieve a proper balance between the role of the
legislature on the one hand, and the role of the courts on the other’.40

PAUSE FOR REFLECTION

Applying the principles of legality and rationality

The Constitutional Court accepted the fact that the principle of legality does not provide that the exercise of
public power must follow a fair procedure in its judgment in Masetlha v President of the Republic of South
Africa and Another.41 In this case, the President dismissed the applicant who was the Head of the National
Intelligence Agency (NIA) after it was revealed that the NIA had been unlawfully spying on a member of the
ANC’s National Executive Committee.
The applicant then applied for an order setting aside the President’s decision. He based his application
on a number of grounds, one of which was that the President’s decision to dismiss him was an
administrative action. In terms of the right to administrative justice, the President was obliged to follow a fair
procedure and give him a hearing before making the decision to dismiss him. It was argued that as the
President had not done so, his decision was unconstitutional and invalid.
The Constitutional Court rejected this argument. In arriving at this decision, a majority of the Court
stated that the key issue it had to decide was whether the President’s decision to dismiss the applicant was,
in fact, an administrative action.
In this respect, the Constitutional Court held that the power to appoint and to dismiss the Head of the
NIA arose out of the special legal relationship that existed between the President and the Head of the NIA.
The Constitution conferred this special legal relationship on the President to promote the security of the
nation. Given these factors, the power to dismiss the Head of the NIA could not be classified as an
administrative action.42
However, the Constitutional Court stated further, simply because the President’s decision did not
constitute administrative action, this did not mean that he could exercise his power in any way that he
chose. This is because every exercise of public power, including the power to dismiss the Head of the NIA,
is subject to the principle of legality.43
While the principle of legality imposes an obligation on the President to act in a rational way, it does not
impose an obligation on the President to follow a fair procedure. This is because such a requirement would
restrict the President’s ability to act in an efficient and prompt manner. The only requirement the President’s
decision to dismiss the applicant had to comply with, therefore, was the principle of rationality.44
Although the Constitutional Court held in the Masethla case that the principle of legality does not
impose an obligation on the President to follow a fair procedure and give the affected parties a hearing
when he or she exercises a public power, it held in Albutt v Centre for the Study of Violence and
Reconciliation and Others 45 that the principle of rationality may impose such an obligation on the
President, at least in certain exceptional cases.
In Albutt, the Constitutional Court set aside a decision of the President, based on the recommendations
of the Pardon Reference Group, to pardon persons who did not participate in the Truth and Reconciliation
Commission (TRC) process. The objective of the TRC process was to achieve national unity and
reconciliation. Given this objective, the Court held that it was irrational and unconstitutional to prevent the

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 victims from making representations to the Pardon Reference Group and on this basis set aside the
decisions to pardon.46
Apart from finding that the principle of rationality may impose an obligation to follow a fair procedure, at
least in certain exceptional cases, in Democratic Alliance v President of South Africa, the Constitutional
Court also held that the principle of rationality applies not only to the merits of a decision made by the
President, but also to the process by which such a decision is made.47 This is because, the Constitutional
Court held further, the test for rationality asks whether the means chosen to achieve a particular purpose
are rationally related to the purpose for which the power was conferred and everything that is done in the
process of exercising that power forms a part of the relevant ‘means’. In other words, the relevant means
includes not only the decision taken to achieve the purpose, but also everything done in the process of
taking that decision.48
In addition, the Court went on to hold, when it comes to determining whether the means (which
encompass both the decision itself and the decision-making process) are rationally related to the ends, the
courts may consider whether the decision-maker failed to take relevant considerations into account. If the
decision-maker did fail to do so and that failure rendered the entire process irrational, then the decision
itself will be irrational and thus constitutionally invalid.49
In Democratic Alliance v President of South Africa the Constitutional Court set aside a decision of the
President to appoint Mr Menzi Simelane as the head of the National Director of Public Prosecutions
(NDPP) on the following grounds: first, that a person could be appointed as the NDPP only if he or she was
‘a fit and proper person’; second, that a report issued by the Ginwala Commission of Enquiry raised serious
concerns about Mr Simelane’s honesty, integrity and conscientiousness; third, that the President had failed
to take the concerns raised by the report into account before he appointed Mr Simelane as the NDPP; and,
finally, that the President’s failure to take the concerns raised by the report into account rendered the entire
decision-making process irrational.
As Price points out, the judgments in Albutt and Democratic Alliance v President of South Africa appear
to be in tension with the judgment in Masethla. One way to resolve this apparent tension, he argues, is to
draw a distinction between procedural fairness and procedural rationality:

On this approach, while procedural fairness is not a general requirement of the principle of
legality (as established in Masethla in the context of executive functions) procedural fairness is
sometimes required by the narrower principle of rationality, depending on the “means” and
“ends” under consideration (as established in Albutt and confirmed in Democratic Alliance in
the context of presidential powers). This solution is attractive because it creates a degree of
flexibility: the executive and president need not always act with procedural fairness, but must do
so if it would be irrational not to … On the other hand, one wonders whether such a fine
distinction – between procedural fairness and procedural rationality – can be maintained.
Professor Cora Hoexter 50 is surely correct to emphasise the “tremendous scope for the further
development of procedural fairness as a requirement of the principle of legality and rationality”
in future.51

No doubt the concept of legality is an evolving one and its full impact will be incrementally felt. At present, the standard of
review under legality is that of rationality whereas the more exacting standard of reasonableness can be used in terms of the
PAJA when reviewing administrative action.
The current position, therefore, is that administrative action is reviewable under the PAJA while the exercise of public power
that cannot be classified as administrative action can be reviewed under the principle of legality. Table 15.1 below illustrates the
differences between the principle of legality and the right to just administrative action. We thus have parallel tracks to review the
exercise of public power. It may be argued that it would be more effective if the definition of administrative action in the PAJA
was either omitted or broadened to cover some executive action. Litigants could then rely on the PAJA for the review of
decisions by members of the executive even when these decisions constitute executive action and not administrative action.
However, this argument may be problematic. Some exercises of public powers by the executive are inherently more political
than other decisions. They may also require that the members of the executive have a wider discretion when they exercise these
powers. When the President wishes to fire the head of the intelligence service, for example, or when he or she wishes to appoint a
commission of enquiry into a recent catastrophic event such as the shooting of a large number of citizens by the police, it would
be impractical and would hinder effective government if the President was required to follow all the requirements of fair process
associated with administrative action. It may take weeks or even months to comply with all the fair procedures required by the
PAJA while the executive decision may require much swifter action to ensure good governance.

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 Table 15.1 The differences between the principle of legality and the right to just administrative action

The exercise of public The principle of legality The right to just The Promotion of
power must be: (section 1) administrative action Administrative Justice Act
(section 33)

Lawful Yes Yes Yes

(section 6(2)(a), (b), (d), (e)
and (i))

Rational Yes Yes Yes

(section 6(2)(f))

Reasonable No Yes Yes

(section 6(2)(h))

Procedurally fair No Yes Yes

(section 3)

Written reasons must be Yes Yes Yes

given (section 5)

15.2.5 The main provisions of the PAJA

15.2.5.1 What constitutes administrative action

As we have seen, a litigant would normally have to rely on the provisions of the PAJA when he or she wishes to challenge the
validity of administrative actions. The PAJA is the national legislation enacted to give effect to section 33 of the Constitution.
The first step in determining whether the PAJA will apply is to determine whether the exercise of power qualifies as
administrative action as defined in the PAJA.
Section 1 of the PAJA defines administrative action in an overly complicated manner and the layers of qualification have
presented some difficulties in interpreting this section and reconciling it with other sections in the Act. Section 1 distinguishes
between administrative decisions made by an organ of state and administrative decisions made by a natural or juristic person.
In so far as organs of state are concerned, section 1 of the PAJA provides that:

administrative action means any decision taken, or any failure to take a decision, by an organ of state,
when exercising a power in terms of the Constitution or a provincial constitution, or exercising a public
power or performing a public function in terms of any legislation, which adversely affects the rights of
any person and which has a direct, external legal effect, but does not include [the powers and functions
listed in paragraphs (aa) to (ii) of the section].52

This definition may be broken down into the following components:

• a decision taken or any failure to take a decision
• made by an organ of state
• when exercising a public power or performing a public function in terms of the Constitution, a provincial constitution or any
legislation
• which adversely affects rights
• which has a direct external legal effect
• which has not been specifically excluded from the definition.

In so far as natural and juristic persons are concerned, section 1 of the PAJA provides that:

administrative action means any decision taken, or any failure to take a decision, by a natural or
juristic person, other than an organ of state, when exercising a public power or performing a public
function in terms of an empowering provision, which adversely affects the rights of any person and
which has a direct, external legal effect, but does not include [the powers and functions listed in
paragraphs (aa) to (ii) of the section].

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 This definition may be broken down into the following components:
• a decision taken or any failure to take a decision
• made by a natural or juristic person
• when exercising a public power or performing a public function in terms of an empowering provision
• which adversely affects rights
• which has a direct external legal effect
• which has not been specifically excluded from the definition.

Thus, it is not the description of the decision maker but the nature of the decision that is the critical starting point in determining
whether the decision constitutes administrative action under the PAJA and can thus be reviewed. 53 A decision made by a juristic
person is as susceptible to a challenge under the PAJA as a decision of an organ of state. The issue is whether the decision is of an
administrative nature and involves the exercise of a public power or the performance of a public function. A decision by a private
institution not exercising a public power or performing a public function in terms of ‘an empowering provision’ would not
constitute administrative action.
However, the notion of an ‘empowering provision’ is broadly defined in the PAJA to mean a ‘law, a rule of common law,
customary law, or an agreement, instrument or other document in terms of which administrative action was purportedly taken’. 54
This is a broad definition and means that the PAJA potentially allows the review of many different kinds of decisions taken by
private institutions. For example, if a municipality invites an accounting and auditing company to run the process of inviting and
awarding tenders for the supply of services to it, the decision to award the tender is an exercise of public power and will be
administrative action even though the decision was taken by a private company and not by an organ of state. 55
The Constitution defines an organ of state as any department of state or administration in the national, provincial or local
sphere of governance.56 This refers to all the various departments of government such as the department of housing, education
and social development. The definition goes further and includes any other functionary or institution exercising a power or
performing a function in terms of the Constitution, a provincial constitution or those exercising a public power or performing a
public function in term of legislation.
Thus, it is likely that a body such as the South African Human Rights Commission, which exercises power in terms of the
Constitution, will be regarded as an organ of state. In Independent Electoral Commission v Langeberg Municipality, the
Constitutional Court held that the Independent Electoral Commission was exercising a public power or performing a public
function in terms of the Constitution and was hence an organ of state. 57 However, it was not part of government and was
therefore not obliged to follow the provisions regarding co-operative governance which are binding on government and
intergovernmental bodies.58 In addition, a whole plethora of regulatory bodies such as the Law Society and the Health
Professionals Council will be deemed organs of state as they exercise public power or perform public functions in terms of
legislation.
The definition of administrative action in section 1 of the PAJA gives rise to a number of difficult questions. One of the most
controversial of these is what is meant by the requirement that administrative action must have a ‘direct external legal effect’.
Another is what is meant by materially and adversely affects rights. The Constitutional Court discussed these issues in its
judgment in Joseph and Others v City of Johannesburg and Others .59 In this case, the Court laid down three important
principles:
• First, the phrase, ‘direct external legal effect’, in section 1 of the PAJA does not play a particularly important role. This is
because a finding that a right has been materially and adversely affected means that there has been a direct, external affect. 60
• Second, the phrase, ‘materially and adversely affected’, in section 3 of the PAJA does not mean that the right in question has
to be breached or infringed. Instead, it simply means that the right has to be affected in a significant way. 61
• Third, the term, ‘right’, in section 3 of the PAJA does not refer only to common law rights, but also to constitutional and
statutory rights.62

In this case the applicants rented apartments in a building which was owned by a certain Mr Nel and which was supplied with
electricity by the City of Johannesburg. As a part of their lease agreements, each applicant paid the amount he or she owed for
electricity to Mr Nel. Unfortunately, Mr Nel failed to pay this money over to the City and the City terminated the supply of
electricity to the building without first notifying the applicants.
After the City had disconnected the supply of electricity to the building, the applicants applied for an order setting aside the
City’s decision. The applicants based their application on the following grounds:
• The City’s decision was an administrative action.
• This administrative action materially and adversely affected their rights.
• In terms of section 3 of the PAJA, the City should have followed a fair procedure and given them notice before it terminated
the supply of electricity even though there was no contract and therefore no contractual rights between the applicants and the
City.

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 Section 3 of the PAJA states that ‘[a]dministrative action which materially and adversely affects the rights or legitimate
expectations of any person must be procedurally fair’. The key questions the Constitutional Court had to answer, therefore, were
as follows:
• First, was the City’s decision to terminate the supply of electricity an administrative action?
• Second, if the decision was an administrative action, did the City’s decision materially and adversely affect any of the
applicants’ rights?
• Third, if the decision did materially and adversely affect any of the applicants’ rights, was the City required to give the
applicants notice before it terminated the supply?

In so far as the first issue was concerned, the Constitutional Court began its analysis by stating that the City had argued that its
decision could not be classified as an administrative action because it did not have a ‘direct, external effect’. To determine
whether the City’s decision was an administrative action, therefore, the Court had to determine what is meant by the phrase,
‘direct, external effect’. This phrase, according to the Constitutional Court, must be interpreted broadly and ‘serves to emphasise
that administrative action impacts directly and immediately on individuals’.63 This means that:

a finding that the rights of the applicants were materially and adversely affected for the purposes of
section 3 of PAJA would necessarily imply that the decision had a ‘direct, external legal effect’ on the
applicants. Conversely, a finding that the rights of the applicants were not materially and adversely
affected would have the result that section 3 of PAJA would not apply.64

After finding that the City’s decision would have a direct, external effect if it materially and adversely affected any of the
applicants’ rights, the Constitutional Court turned to consider the second issue, namely whether the City’s decision did, in fact,
materially and adversely affect any of the applicants’ rights.
In so far as the second issue was concerned, the Constitutional Court began by stating that the City had argued that while its
decision may have materially and adversely affected Mr Nel’s rights, it did not materially and adversely affect any of the
applicants’ rights because there was no contract between the City and the applicants. To determine whether the City’s decision
materially and adversely affected the applicants’ rights, therefore, the Court had to determine whether the applicants had any
rights they could enforce against the City.
The Constitutional Court stated that it was true that the applicants did not have any contractual rights which they could
enforce against the City. However, a careful examination of the Constitution and the Local Government: Municipal Systems Act
65 showed that every municipality was obliged to provide basic services to their inhabitants irrespective of whether or not they
had a contractual relationship with the relevant service provider. In addition, one of the most important basic services every
municipality was obliged to provide was electricity.66
The key question that then arose, the Constitutional Court stated further, was whether the constitutional and statutory right to
receive electricity as a basic municipal service was the kind of right referred to in section 3 of the PAJA. Adopting a purposive
approach, the Constitutional Court held that it was. This is because the rights referred to in section 3 of the PAJA ‘include not
only vested, private law rights but also legal entitlements that have their basis in the constitutional and statutory obligations of
government’:

In my view, proper regard to the import of the right to administrative justice in our constitutional
democracy confirms the need for an interpretation of rights under section 3(1) of PAJA that makes
clear that the notion of ‘rights’ includes not only vested, private law rights but also legal entitlements
that have their basis in the constitutional and statutory obligations of government. The Preamble of
PAJA gives expression to the role of administrative justice and provides that the objectives of PAJA
are, inter alia, to ‘promote an efficient administration and good governance’ and to ‘create a culture of
accountability, openness and transparency in the public administration or in the exercise of public
power or the performance of a public function’. These objectives give expression to the founding values
in section 1 of the Constitution, namely that South Africa is founded on the rule of law and on
principles of democratic government to ensure accountability, responsiveness and openness.67

After setting out these principles, the Constitutional Court turned to apply them to the facts. In this respect, the Court found that
the applicants had a constitutional and statutory right to receive electricity as a basic municipal service from the City. This
constitutional and statutory right was the sort of right referred to in section 3 of the PAJA. When the City terminated the supply
of electricity to the building, this action materially and adversely affected the constitutional and statutory right of the applicants
living in it. Therefore, the City should have followed a fair procedure.68
In arriving at this decision, the Constitutional Court also stated that the phrase, ‘materially and adversely affects’ a right in
section 3(1) of the PAJA, does not mean that a fair procedure has to be followed only when a right is breached by the
administrative action in question. Instead, it means that a fair procedure must be followed whenever a right is affected in a

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 significant and not a trivial way by the administrative action in question. 69
Having found that the City should have followed a fair procedure before it terminated the supply of electricity, the
Constitutional Court turned to consider the third issue, namely whether the City was required to give the applicants notice before
it terminated the supply of electricity to their building. In so far as this issue was concerned, the Constitutional Court began by
stating that the applicants had argued that in terms of section 3(2) of the PAJA, the City was required to provide them with
adequate notice before it terminated the supply of electricity. In addition, they had argued further, this requirement could be
satisfied simply by posting a written notice in a prominent place in the building they occupied and that such a notice would not
place an undue burden on the City.70
The Constitutional Court accepted this argument and held that the City had to provide the applicants with a pre-termination
notice. This notice had to contain all relevant information including the date and time of the proposed termination and the place
where the affected parties could challenge the termination. Approximately 14 days’ pre-termination notice would be adequate and
appropriate.71
Given that the City had failed to do so, the Constitutional Court concluded that the termination of the electricity supply was
unlawful and ordered the City to reconnect the electricity supply to the building the applicants occupied. The provisions of the
PAJA were therefore successfully invoked to have a decision by the City Council set aside that would have had serious effects on
the economic and social well-being of the inhabitants of the building.

PAUSE FOR REFLECTION

Using other rights apart from social and economic rights to advance the interests of the
marginalised and vulnerable
In the last chapter of this book, we will discuss the Court’s role in the realisation of social and economic
rights in more detail. However, what the Joseph judgment illustrates is that other rights apart from social
and economic rights – including the right to fair administrative action guaranteed in section 33 and given
effect to by the PAJA – can be used to advance the social and economic interests of the marginalised and
vulnerable in society.

15.2.5.2 The key obligations imposed by the PAJA

15.2.5.2.1 Introduction
After an applicant has managed to show that the exercise of public power in question falls into the definition of an administrative
action, he or she is entitled to claim the administrative rights set out in the PAJA. Among the most important of these
administrative rights are the following:
• the right to lawful administrative action
• the right to reasonable administrative action
• the right to procedural fairness
• the right to be given reasons for an administrative decision.

In so far as these rights are concerned, however, it is important to note that section 2 of the PAJA provides that the Minister of
Justice may, by notice in the Government Gazette, if it is reasonable and justifiable in the circumstances, exempt an
administrative action or a group or class of administrative actions from either of the first two rights. Parliament must approve
such an exemption before it is published in the Gazette.
The Minister’s power to exempt administrative actions from the first two rights is therefore subject to two constraints:
• First, the exemption must be reasonable and justifiable.
• Second, Parliament must approve the exemption.

15.2.5.2.2 Lawful administrative action

a) Introduction
Lawfulness lies at the very heart of just administrative action and provides that an administrator – somebody who exercises public
power that amounts to administrative action – must act in terms of and in accordance with the terms of an empowering statute.

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 The right to lawful administrative justice, therefore, prohibits administrators from taking decisions that are not authorised by law
or from ignoring any statutory requirements that are attached to the exercise of the power in question. An administrator who fails
to comply with these requirements, therefore, is said to be acting ultra vires.72
The right to lawful administrative action, however, goes beyond simply providing that an administrator must act in terms of
and in accordance with the terms of an empowering statute and includes a number of other grounds of review. Where an
administrator acts, for example, in bad faith, for an ulterior purpose, takes into account irrelevant considerations or fails to take
into account relevant considerations, or makes an error of law, he or she acts beyond his or her powers. 73
These different grounds of review may be divided into three categories:
• the requirement of authority, which provides that administrators may only exercise the powers that have been conferred on
them by the law and may not unlawfully delegate them
• the concept of jurisdiction, which provides that administrators must remain within the procedural and substantive bounds of
their power and may not misconstrue them
• the umbrella ground of abuse of discretion.74

Many, if not most, of the different grounds of review that fall under each of these categories have been included in section 6(2) of
the PAJA. Section 6(2) provides as follows:

(2) A court or tribunal has the power to judicially review an administrative action if:
( a) the administrator who took it:
(i) was not authorised to do so by the empowering provision;
(ii) acted under a delegation of power which was not authorised by the
empowering provision; or
(iii) was biased or reasonably suspected of bias;
( b) a mandatory and material procedure or condition prescribed by an empowering provision
was not complied with;
(c) the action was procedurally unfair;
( d) the action was materially influenced by an error of law;
(e) the action was taken:
(i) for a reason not authorised by the empowering provision;
(ii) for an ulterior purpose or motive;
(iii) because irrelevant considerations were taken into account or relevant
considerations were not considered;
(iv) because of the unauthorised or unwarranted dictates of another person or
body;
(v) in bad faith; or
(vi) arbitrarily or capriciously;
( f) the action itself:
(i) contravenes a law or is not authorised by the empowering provision; or
(ii) is not rationally connected to:
(aa) the purpose for which it was taken;
(bb) the purpose of the empowering provision;
(cc) the information before the administrator; or
(dd) the reasons given for it by the administrator;
( g) the action concerned consists of a failure to take a decision;
(h) the exercise of the power or the performance of the function authorised by the
empowering provision, in pursuance of which the administrative action was purportedly
taken, is so unreasonable that no reasonable person could have so exercised the power or
performed the function; or
( i) the action is otherwise unconstitutional or unlawful.

b) The requirement of authority

As mentioned above, the requirement of authority provides that administrators may only exercise the powers that have been
conferred on them by the law and may not unlawfully delegate them. This requirement is given expression in section 6(2)( a) of
the PAJA which focuses on the administrator who took the decision. The requirement states that a decision may be reviewed and
set aside if the person exercising the power lacked the authority to do so, or had power delegated to him or her in an unauthorised
manner, or was biased or was reasonably suspected of being biased.
In SARFU III, the Constitutional Court pointed out that the circumstances in which a functionary has unlawfully abdicated
the power vested in him or her may be divided into three categories:
• first, where the functionary unlawfully delegates the power to someone else
• second, where the functionary acts on the instructions of someone else

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 • third, where the functionary refers the decision to someone else.75

In SARFU III, the Constitutional Court explained the three categories of abdication as occurring:

where a functionary in whom the power has been vested delegates that power to someone else.
Whether such delegation is valid depends upon whether the recipient of the power is lawfully entitled
to delegate that power to someone else. There can be no doubt that when the Constitution vests power
to appoint commissions of inquiry in the President, the President may not delegate that authority to a
third party. The President himself must exercise that power. Any delegation to a third party would be
invalid. The second category referred to by Baxter deals with cases when a functionary vested with a
power does not of his or her own accord decide to exercise the power, but does so on the instructions of
another. The third category, passing the buck, contemplates a situation in which a functionary may
refer the decision to someone else.76

If there is an unlawful abdication of power, the decision will be set aside on review. However, note that section 238( a) of the
Constitution contemplates the inevitability that powers will be delegated as a necessity for the ‘daily practice of governance’,
stating that:

An executive organ of state in any sphere of government may –

delegate any power or function that is to be exercised or performed in terms of legislation to any
other executive organ of state, provided the delegation is consistent with the legislation in terms of
which the power is exercised or the function is performed.

In each case a court will have to determine whether a delegation is lawful or unlawful. In the case of AAA Investments
(Proprietary) Limited v Micro Finance Regulatory Council and Another , the Constitutional Court set out some criteria to
determine whether a delegation is acceptable, stating that:

Criteria relevant to determining whether a delegation of a delegated power is acceptable include the
following: the character of the original delegation; the extent of the delegation of the delegated power;
the extent to which the original delegee continues to review the exercise of the delegated power;
considerations of practicality and effectiveness; and the identity of the institutions or persons by whom
and to whom power is delegated.77

The exercise of an administrative power in terms of delegated authority will only be impermissible and unlawful if that delegation
does not comply with the criteria set out above.

PAUSE FOR REFLECTION

Determining whether an administrator has unlawfully abdicated his or her power to

make a decision
It will not always be easy to determine whether an administrator has unlawfully abdicated his or her power
to make a decision. In a modern state, an administrator may rely on other functionaries to assist him or her
to make a sound decision. When the decision of an administrator, who is authorised to make a decision, is
informed by the advice of others, this will not necessarily be unlawful. In complex matters of a technical
nature the administrator may not necessarily have the requisite expertise to make a proper decision. In
such cases, it will not necessarily be unlawful for that administrator to take advice from others.
The situation will be different where the authorised administrator fails to exercise his or her discretion at
all and, instead, rubberstamps the decision of somebody who is not authorised to make the decision at all.
For example, say a departmental official is authorised to make a decision on whether or not to grant a
fishing licence. The decision is based, inter alia, on a technical assessment of whether the granting of such
a licence would threaten the sustainability of fishing in a particular area. If that departmental official is not a
marine biologist with expertise about the effects of fishing in an area on the fish stock in that area, there
would arguably be nothing wrong with that official consulting a marine biologist for advice. However, the
situation will be different when, say, that official grants a fishing licence to someone after having been
instructed to do so by a politician who is not authorised to make a decision on the granting of fishing
licences.

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 Apart from the points set out above, the requirement of authority also provides that the administrator must comply with any
statutory requirements or preconditions attached to the exercise of the power in question. It is not surprising, therefore, that
section 6(2)(b) of the PAJA allows for administrative action to be reviewed and set aside if there is no compliance with a
mandatory or material procedure or condition.

c) The concept of jurisdiction

An administrator is required to remain within the substantive and procedural bounds of his or her powers and may not
misconstrue these. If he or she fails to do so, the decision could be reviewed on the basis that he or she lacks jurisdiction to
exercise that power. The concept of jurisdiction may be divided into two separate elements, namely a material mistake of law –
where the legal provision on which the decision is based is wrongly interpreted – and, more controversially, a material mistake of
fact. A material mistake of law occurs when an administrator misinterprets the law. As a result of this misinterpretation, the
administrator misunderstands the nature of his or her power and, therefore, exercises it improperly. 78
This ground of review is referred to in section 6(2)( d) of the PAJA which simply states that a court may review an
administrative action if the action was materially influenced by an error of law. In so far as this provision is concerned, it is
important to note that it is only decisions based on material errors of law that will be set aside. Materiality has been defined as
follows:

If, for instance, the facts found by the tribunal are such as to justify its decision even on a correct
interpretation of the statutory criterion, then normally (ie: in the absence of some other review
ground) there would be no ground for interference.79

Thus, if the same conclusion would have been reached had the decision maker not erred, the decision will not be set aside as the
error is not material.
A material mistake of fact occurs when an administrator fails to follow a prescribed procedure or makes a decision in
breach of a substantive condition the administrator was required to fulfil before making the decision. A material mistake of fact
can enable an administrator to inflate his or her jurisdiction by accumulating powers beyond those that the empowering
legislation confers on him or her. Although this ground is not explicitly referred to in the PAJA, it is recognised as a ground for
judicial review.80

d) Abuse of discretion
This ground – which tends to overlap with the requirement of reasonableness – is dealt with in some detail in the PAJA.
Section 6(2)(e) thus provides that administrative action may be reviewed on the grounds that it was taken:
• for a reason not authorised by the empowering provision
• for an ulterior purpose
• because irrelevant considerations were taken into account and relevant considerations were not
• because of the unauthorised or unwarranted dictates of another person or body
• in bad faith or arbitrarily or capriciously.

When a power is granted for one purpose, it cannot be exercised for any ulterior purpose or objective. As the Constitutional Court
held in the Pharmaceutical Manufacturers case:

Powers are not conferred in the abstract. They are intended to serve a particular purpose. That
purpose can be discerned from the legislation that is the source of the power and this ordinarily places
limits upon the manner in which it is exercised. If those limits are transgressed a court is entitled to
intervene and set aside the decision.81

An example of a power being exercised for a purpose for which it was not granted can be found in the pre-constitutional
judgment of Van Eck NO and Van Rensburg NO v Etna Stores .82 This case dealt with wartime regulations permitting the
administrator to seize food in order to obtain evidence of suspected violations of the regulations. The administrator acting in
terms of these regulations seized bags of rice as part of a food distribution scheme and not to obtain evidence of contravention of
the regulations. As the administrator had acted for an improper purpose, the decision was set aside.

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 15.2.5.2.3 Reasonable administrative action
The notion that an administrative decision can be reviewed and set aside on the basis that the decision was not reasonable,
remains a contentious one in our law.83 This is so because administrative review is not normally seen as focusing on the
correctness or wisdom of an administrative decision. Given the constraints placed on courts by the separation of powers doctrine,
it is generally thought that it would not normally be appropriate for a court to review and set aside an administrative decision
merely because the court believes the decision was not the best possible decision to be made in the circumstances. Administrative
decisions deal with the review of decisions, not with the appeal of such decisions on the merits of the decision. Reasonableness
review is controversial because it draws the courts into the awkward space between review and appeal by necessitating an
assessment of the merits of an administrative decision. This is something that is usually associated with the appeal of a decision,
not with its review in terms of administrative law grounds. 84
Nevertheless, reasonableness review does form part of South African law. In the pre-constitutional era, the Appellate
Division in Johannesburg Stock Exchange and Another v Witwatersrand Nigel Ltd and Another held that in terms of the common
law, an administrative decision could be reviewed and set aside if ‘the decision … was so grossly unreasonable as to warrant the
inference that he had failed to apply his mind to the matter in the manner aforestated’. 85 However, the pre-constitutional
jurisprudence failed to establish reasonableness as a free-standing ground of review. 86 Unreasonableness was only considered to
be a ground of review to the extent that it could be shown that a decision was so unreasonable as to lead to a conclusion that the
official had failed to apply his or her mind to the decision. 87
Section 33(1) of the Constitution now states that everyone has the right to administrative action, inter alia, that is ‘lawful,
reasonable and procedurally fair’. The reasonableness aspect is purportedly given effect to by section 6(2)( h) of the PAJA which
states that the court can review an administrative action if:

the exercise of the power or the performance of the function authorised by the empowering provision,
in pursuance of which the administrative action was purportedly taken, is so unreasonable that no
reasonable person could have so exercised the power or performed the function.

This seems like a rather clumsy formulation. However, in Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism and Others 88 the Constitutional Court interpreted this provision in the light of section 33 of the Constitution. The Court
said that even if it may be thought that the language of section 6(2)( h) of the PAJA, if taken literally, might set a standard which
would rarely if ever lead to a finding that a decision was unreasonable, ‘that is not the proper constitutional meaning’ of the
subsection. Instead, section 6(2)(h) should be ‘understood to require a simple test, namely, that an administrative decision will be
reviewable if … it is one that a reasonable decision-maker could not reach’. 89

What will constitute a reasonable decision will depend on the circumstances of each case, much as what
will constitute a fair procedure will depend on the circumstances of each case. Factors relevant to
determining whether a decision is reasonable or not will include the nature of the decision, the identity
and expertise of the decision-maker, the range of factors relevant to the decision, the reasons given for
the decision, the nature of the competing interests involved and the impact of the decision on the lives
and well-being of those affected. Although the review functions of the court now have a substantive as
well as a procedural ingredient, the distinction between appeals and reviews continues to be
significant. The court should take care not to usurp the functions of administrative agencies. Its task is
to ensure that the decisions taken by administrative agencies fall within the bounds of reasonableness
as required by the Constitution.90

PAUSE FOR REFLECTION

A substantive element in the administrative review process

As the Constitutional Court admitted in Bato Star Fishing, the fact that an administrative decision can be
reviewed and set aside on the basis of reasonableness infuses a substantive element into the
administrative review process. However, it is important to note that this does not mean that the Court can
set aside an administrative decision because it believes that the decision is unwise or wrong. Administrative
review must not be confused with an appeal that attacks the merits of a decision on the basis that it
infringes one of the other rights in the Constitution.
The distinction between these two types of review can be explained with the help of an example. When

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 an administrative body decides to refuse to grant permission to an organisation to hold a protest march, this
decision can be attacked on substantive grounds by invoking the right to freedom of assembly guaranteed
by section 17 of the Bill of Rights. This appeal of the decision will not be based on administrative law.
However, in principle, the administrative decision itself could also be reviewed in terms of section 6(2)(h) of
the PAJA on the basis that the decision was unreasonable because no reasonable decision maker could
have made the decision.

15.2.5.2.4 Procedurally fair administrative action

a) Introduction
The requirement that an administrative decision must be procedurally fair places context at the heart of the enquiry. This means
that a determination on whether the administrative decision was procedurally fair will depend on the facts of the individual case.
A court must therefore interpret and apply the relevant provisions of the PAJA with reference to the factual matrix within which
the administrative decision was made. The right to procedural fairness in administrative decisions is set out in section 3 of the
PAJA.91 Section 3 provides as follows:

(1) Administrative action which materially and adversely affects the rights or legitimate
expectations of any person must be procedurally fair.
(2) ( a) A fair administrative procedure depends on the circumstances of each case.
( b) In order to give effect to the right to procedurally fair administrative action, an
administrator, subject to subsection (4), must give a person referred to in subsection (1):
(i) adequate notice of the nature and purpose of the proposed administrative
action;
(ii) a reasonable opportunity to make representations;
(iii) a clear statement of the administrative action;
(iv) adequate notice of any right of review or internal appeal, where applicable;
and
(v) adequate notice of the right to request reasons in terms of section 5.
(3) In order to give effect to the right to procedurally fair administrative action, an administrator
may, in his or her or its discretion, also give a person referred to in subsection (1) an opportunity
to:
( a) obtain assistance and, in serious or complex cases, legal representation;
( b) present and dispute information and arguments; and
(c) appear in person.
(4) ( a) If it is reasonable and justifiable in the circumstances, an administrator may depart from
any of the requirements referred to in subsection (2).
( b) In determining whether a departure as contemplated in paragraph (a) is reasonable and
justifiable, an administrator must take into account all relevant factors, including:
(i) the objects of the empowering provision;
(ii) the nature and purpose of, and the need to take, the administrative action;
(iii) the likely effect of the administrative action;
(iv) the urgency of taking the administrative action or the urgency of the matter;
and
(v) the need to promote an efficient administration and good governance.
(5) Where an administrator is empowered by an empowering provision to follow a procedure which
is fair but different from the provisions of subsection (2), the administrator must act in
accordance with that different procedure.

Unfortunately, the formulation of section 3 is not a model of clarity. It is necessary to understand the complex interplay of its
various subsections to determine its scope and meaning. It is also necessary to reconcile the section with the definition of
administrative action set out in section 1 of the Act.92 As the provisions set out above indicate, section 3 is divided into five
subsections. Subsection 3(1) lists the requirements that must be met before the right to procedural fairness can be asserted.
Subsection 3(2) reaffirms the flexibility of the concept and identifies five requirements as being core features of procedural
fairness. Subsection 3(3) recognises that in certain circumstances a trial-type hearing may be required for the process to be
procedurally fair. Subsection 3(4) allows the administrator to depart from the requirement of subsection 3(2) if it is reasonable
and justifiable to do so and lists the factors that need to be considered. Finally, subsection 3(5) is an enabling section which
allows an administrator to follow an alternative procedure provided it is fair. Before turning to consider these subsections,
however, it will be helpful to discuss briefly what is meant by the concept of procedural fairness.

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 b) The concept of procedural fairness
The concept of procedural fairness is inherently flexible and its content depends on the circumstances to which it is applied.
Fairness of process – which we discuss here – must be distinguished from the correctness of the outcome. When we talk of
procedural fairness we are not, in the first instance, focusing on the outcome, but rather on the quality of the process which led to
the outcome. As De Smith, Woolf and Jowell point out, the concept ‘ranges from mere consultation at the lower level, upward
through an entitlement to make written representation, to make oral representations, to a fully-fledged hearing at the other
extreme with most of the characteristics of a judicial trial’.93
What is required in any particular case is incapable of definition in abstract terms. As Lord Bridge put it:

the so called rules of natural justice are not engraved on tablets of stone. To use the phrase which
better expresses the underlying concept, what the requirement of fairness demands when anybody,
domestic, administrative or judicial, has to make a decision which will affect the rights of individuals
depends on the character of the decision-making body, the kind of decision it has to make and the
statutory or other framework in which it operates.94

Because of the flexibility of the concept, the administrator has to make a determination of what is procedurally fair in the specific
circumstances. It is not necessary in every case to afford a person a trial-type hearing before making a decision that affects that
person. In some instances, consultation or the opportunity to make written representations will suffice. In Doody v Secretary of
State for the Home Department and other Appeals ,95 the House of Lords accurately captured the legal principles regarding
procedural fairness.96 These principles are as follows:
• Where an Act of Parliament confers an administrative power, there is a presumption that it will be exercised in a manner
which is fair in all circumstances.
• The standards of fairness are not immutable. They may change with the passage of time, both in general and in their
application to decisions of a particular type.
• The principles of fairness are not applied by rote and are not identical in every situation. What fairness demands is dependent
on the context of the decision and this is to be taken into account in all its aspects.
• An essential feature of the context is the statute which creates the discretion as regards both its language and the shape of the
legal and administrative system within which the decision is taken.
• Fairness often requires that a person who may be adversely affected by the decision has an opportunity to make
representations on his or her own behalf either before the decision is taken with a view to producing a favourable result or
after it is taken with a view to procuring its modification, or both.
• Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against
his or her interests, fairness often requires that the person is informed of the gist of the case which he or she has to answer.

One of the major concerns about having multiple processes is that it may impede effective and expeditious decision making. If a
regulator has to afford three sets of hearings to parties at various stages in the decision-making process, the taking of the ultimate
decision will be delayed. This delay may adversely affect the implementation of policy and cause frustration.

PAUSE FOR REFLECTION

The tension between strict enforcement of fair procedures and the efficient running of
the country
O’Regan J highlighted the flexible nature of the concept of procedural fairness in her judgment in Premier,
Province of Mpumalanga and Another v Executive Committee of the Association of Governing Bodies of
State Aided Schools: Eastern Transvaal.97
In this case, the Member of the Executive Council (MEC) responsible for education in Mpumalanga
decided on 31 August 1995 that bursaries paid to former state-aided schools (so-called Model C schools) to
assist poor students with their fees, transport and accommodation costs would be terminated with effect
from 1 July 1995.
After the MEC had made this decision, the respondent applied for an order setting aside the MEC’s
decision on the ground that it violated the right to procedural fairness guaranteed in section 24(b) of the
interim Constitution. Section 24(b) provides that ‘[e]very person shall have the right to procedurally fair
administrative action where any of his or her rights or legitimate expectations are affected or threatened’.
In determining whether the MEC had followed a fair procedure before he decided to terminate
bursaries, the Constitutional Court pointed out that while section 24(b) of the interim Constitution required
that administrative action which affected or threatened legitimate expectations must be procedurally fair,

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 this did not mean that a hearing would be required in all circumstances. ‘It is well-established in our legal
system and in others that what will constitute fairness in a particular case will depend on the circumstances
of the case.’ 98 The Court pointed out further that:

[i]n determining what constitutes procedural fairness in a given case, a court should be slow to
impose obligations upon government which will inhibit its ability to make and implement policy
effectively (a principle well recognised in our common law and that of other countries). As a
young democracy facing immense challenges of transformation, we cannot deny the importance
of the need to ensure the ability of the executive to act efficiently and promptly. On the other
hand, to permit the implementation of retroactive decisions without, for example, affording
parties an effective opportunity to make representations would flout another important principle,
that of procedural fairness. … Citizens are entitled to expect that government policy will
ordinarily not be altered in ways which would threaten or harm their rights or legitimate
expectations without their being given reasonable notice of the proposed change or an
opportunity to make representations to the decision-maker.99

This passage is significant for two reasons. First, it affirms that the common law notion of procedural
fairness is now essentially encapsulated by section 33 of the Constitution (in this case, section 24 of the
interim Constitution) which is given effect to by section 3 of the PAJA. Second, it affirms that there will
sometimes be a tension between strict enforcement of fair procedures and the efficient running of the
country. As is so often the case in the adjudication of constitutional disputes, the broader context will be
pivotal in deciding whether a hearing is required or not. In this case, the Court found that the MEC had
neither given the recipients reasonable notice of the impending termination nor were they given an
opportunity to make representations to the decision maker. In the circumstances of this case, this
amounted to a failure of procedural fairness and a violation of constitutional rights. The Court ordered the
provincial government to pay the subsidies for that year.

c) Rights and legitimate expectations

In terms of section 3 of the PAJA, a person can claim the right to be treated procedurally fairly if either his or her rights or his or
her legitimate expectations are materially and adversely affected. It is consequently important to understand what is meant by the
concept of a right and the concept of a legitimate expectation. There seems to be a conflict between the definition of
administrative action set out in section 1 which applies to action that adversely affects rights and section 3 which applies to
administrative action that adversely affects rights or legitimate expectations.100 Can the conflict between these two provisions
be solved?
As we have already seen, the Constitutional Court interpreted the concept of a right broadly in Joseph to ‘include not only
vested, private law rights but also legal entitlements that have their basis in the constitutional and statutory obligations of
government’.101 However, even when a right is defined in this manner, it does not encompass a legitimate expectation.
A legitimate expectation arises either from an express promise made by a public authority or as a consequence of a regular
practice of a public authority which the claimant can reasonably expect to continue. 102 If either of these criteria is established,
then the expectation is legitimate and will, depending on the circumstances of the case, give rise to a right to a hearing before the
decision is taken.
Thus, an expectation is something that is broader than a right. It has been described as a benefit, an advantage or a privilege.
In South African Veterinary Council and Another v Szymanski, the Supreme Court of Appeal (SCA) held that it is not whether the
expectation exists in the mind of the litigant, but whether objectively such expectation exists in a legal sense. 103 In Walele v City
of Cape Town and Others, the Constitutional Court confirmed that the enquiry is essentially a factual one and that there is a
two-stage process.104 In this case the Constitutional Court dealt with the anomaly between the definition in section 1 and the
inclusion of legitimate expectation in section 3 as follows:

But the difficulty is that administrative action is defined in section 1 of PAJA as a decision which
adversely affects the rights of another person. In the definition no reference is made to a decision
affecting legitimate expectations. Yet section 3 refers to administrative action that affects legitimate
expectations. Applying the definition to the interpretation of section 3 will lead to absurdity. Therefore,
I am willing not to apply it and to assume that section 3 of PAJA confers the right to procedural

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 fairness also on persons whose legitimate expectations are materially and adversely affected by an
administrative decision. In the context of section 3, administrative action cannot mean what was
intended in the definition section.105

The Court also stated that the applicant has to establish objectively that the facts give rise to an expectation. If the applicant
succeeds in establishing this, the enquiry moves to the second stage which is whether in the circumstances of the case, procedural
fairness requires a pre-decision hearing.106 Thus, if a municipality regularly invited interested parties to inspect the plans and to
make representations when considering applications for the approval of plans for the erection of buildings, then a legitimate
expectation would arise as a consequence of this regular practice. A person who is affected by the development could argue that
they have a legitimate expectation, that they should be treated procedurally fairly and be given the opportunity to make
representations. In Walele, the Court held that the fact that the City had afforded a hearing in one application does not constitute a
legitimate expectation.
Once the applicant has established that either a right or a legitimate expectation has been materially and adversely affected,
he or she thus has the right to be treated procedurally fairly. The content of this right is flexible and will depend on the
circumstances of the case. The following are the core obligations that must be met for the functionary to act procedurally fairly.

d) Procedural fairness of administrative action that affects any person: section 3 of the PAJA
Section 3(2)(b) of the PAJA sets out five compulsory elements of any procedurally fair administrative action that affects the
rights and, as we saw above, the legitimate expectations, of any person. The five core requirements can be divided into two parts,
namely the pre-hearing and post-hearing requirements.
The pre-hearing requirements oblige first that the affected person be given adequate notice of the nature and purpose of the
proposed administrative action and a reasonable opportunity to make representations. Thus, the applicant must be given adequate
time to prepare a response and sufficient information to know the case he or she has to meet and to be aware of the consequences
of the proposed administrative action.
Second, there must be a reasonable opportunity to make representations. What is reasonable will depend on the
circumstances of each case. Section 3(2)(b)(ii) requires that a reasonable opportunity be given to make representations. This is
less exacting than the requirement in section 3(3)(c) which requires that in certain circumstances an opportunity be given to
appear in person. It is clear that section 3(2)(b)(ii) permits written representations and is an attempt to prevent the proceedings
from becoming too formal.107 However, what is appropriate will depend on a variety of factors including whether the affected
person is able to communicate in writing.
Once the functionary has made the decision, he or she must, third, provide a clear statement of the administrative action. As
Hoexter indicates, the statement should detail ‘what has been decided, when, by whom and on what legal and factual basis’. 108
Fourth, the functionary must provide adequate notice of any right of review or internal appeal. In many instances, enabling laws
allow an appeal from the decision of the functionary to an internal appeal tribunal. Notices of this internal appeal must be
provided to the affected person. Finally, the functionary is obliged to inform the affected person of his or her right to request
reasons in terms of section 5 of the PAJA.
However, section 3(4)(a) of the PAJA provides that if it is ‘reasonable and justifiable in the circumstances’, the requirements
set out above need not be complied with. Section 3(4)(b) lists the following factors to be taken into account when making such a
determination:

(i) the objects of the empowering provision;

(ii) the nature and purpose of, and the need to take, the administrative action;
(iii) the likely effect of the administrative action;
(iv) the urgency of taking the administrative action or the urgency of the matter; and
(v) the need to promote an efficient administration and good governance.

This means these ‘compulsory’ requirements for a procedurally fair administrative action are not, in fact, compulsory in all cases.
The PAJA therefore aims to prevent the imposition of duties on the administrator that are so onerous that it would make effective
administration difficult or even impossible.

PAUSE FOR REFLECTION

The ‘compulsory’ requirements for a procedurally fair administrative action

Currie and De Waal argue that the compulsory nature of these five requirements set out in section 3(2)(b)
of the PAJA can be deceptive:

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 First, the elements are always subject to interpretation informed by a circumstance-based
understanding of procedural fairness. Their content will thus tend to vary from case to case.
Secondly, in several elements the score for variation is increased by the use of inherently
flexible standards … Thirdly, the Constitutional Court has held that s 3(2)(a) must be read as
giving courts the discretion in enforcing the minimum requirements under s 3(2)(b) even when
s 3(4) is not invoked. In other words, the court is not bound to enforce even the compulsory
requirements, and an administrator may be able to depart from them without relying on s 3(4).
109

In Joseph, the Constitutional Court had to decide whether a fair administrative process had been followed
when the City decided to terminate the electricity supply to a block of flats. The Court enforced the
requirement that a pre-termination notice had to be given to all tenants in the block of flats. However, noting
its decision in Premier, Mpumalanga that in ‘determining what constitutes procedural fairness in a given
case, a court should be slow to impose obligations upon government which will inhibit its ability to make
and implement policy effectively’,110 the Court declined to impose a duty on the City to receive and
process representations from tenants in every case.111

Section 3(3) recognises that in certain circumstances a further layer of procedural formalities is necessary. Thus, in certain
circumstances it may be necessary for the affected persons to be permitted legal representation, to be permitted to be present and
to dispute information and argument and to appeal in person. In Hamata and Another v Chairperson, Peninsula Technikon
Internal Disciplinary Committee and Others,112 the applicant requested to be legally represented at a disciplinary hearing. The
Court held that while there was no right to legal representation in administrative proceedings, there was a right to have the request
for legal representation considered. Thus, the presiding officer must have discretion to determine whether to allow legal
representation. In making this decision, regard must be had to the following factors:
• the degree of legal and factual complexity of the matter
• the potential seriousness of the consequences for the relevant parties of an adverse finding
• whether the opposing party is legally represented.

Should the administration wish to depart from the requirements of the section, it may do so provided it establishes that it is
reasonable and justifiable to do so. In making this decision, the administrator must have regard to all the criteria listed in
section 3(4) of the PAJA.

CRITICAL THINKING

An example of the contextual approach to procedural fairness

The contextual approach to procedural fairness can be applied with reference to the following set of facts.
Assume that the Department of Mineral Resources has to follow a two-stage process before issuing a
licence to mine. The first stage is a preliminary stage during which the applicant requests permission to
conduct an initial feasibility study and viability assessment. The second stage is when an application is
formally considered for the licence to be granted.
Assume further that an application is made to mine the banks of the Vaal River. The Department
indicates that all parties will be given an opportunity to participate during the second phase of the process
when the merits of the applications will be fully considered. However, it declines to give an association of
residents the opportunity to make representations at the first phase on the basis that it would unnecessarily
hinder and slow down the process.
Do you think the Department is obliged to give the residents the opportunity to make representations
during both phases? If not, why not?

e) Procedural fairness of administrative action that affects the public: section 4 of the PAJA
It is not only when an administrative action affects an individual person that the action may have to be procedurally fair.
Section 4(1) of the PAJA places certain obligations on an administrator where the administrative action ‘materially and adversely
affects the rights of the public’. The two procedures outlined in section 4 are a notice and comment procedure and a public

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 enquiry procedure.113 Section 4 states that:

(1) In cases where an administrative action materially and adversely affects the rights of the public,
an administrator, in order to give effect to the right to procedurally fair administrative action,
must decide whether –
( a) to hold a public inquiry in terms of subsection (2);
( b) to follow a notice and comment procedure in terms of subsection (3);
(c) to follow the procedures in both subsections (2) and (3);
( d) where the administrator is empowered by any empowering provision to follow a
procedure which is fair but different, to follow that procedure; or
(e) to follow another appropriate procedure which gives effect to section 3.
(2) If an administrator decides to hold a public inquiry –
( a) the administrator must conduct the public inquiry or appoint a suitably qualified person
or panel of persons to do so; and
( b) the administrator or the person or panel referred to in paragraph (a) must –
(i) determine the procedure for the public inquiry, which must –
(aa) include a public hearing; and
(bb) comply with the procedures to be followed in connection with public
inquiries, as prescribed;
(ii) conduct the inquiry in accordance with that procedure;
(iii) compile a written report on the inquiry and give reasons for any
administrative action taken or recommended; and
(iv) as soon as possible thereafter –
(aa) publish in English and in at least one of the other official languages in
the Gazette or relevant provincial Gazette a notice containing a concise
summary of any report and the particulars of the places and times at
which the report may be inspected and copied; and
(bb) convey by such other means of communication which the administrator
considers effective, the information referred to in item (aa) to the public
concerned.
(3) If an administrator decides to follow a notice and comment procedure, the administrator must –
( a) take appropriate steps to communicate the administrative action to those likely to be
materially and adversely affected by it and call for comments from them;
( b) consider any comments received;
(c) decide whether or not to take the administrative action, with or without changes; and
( d) comply with the procedures to be followed in connection with notice and comment
procedures, as prescribed.
(4) ( a) If it is reasonable and justifiable in the circumstances, an administrator may depart from
the requirements referred to in subsections (1)(a) to (e), (2) and (3).
( b) In determining whether a departure as contemplated in paragraph (a) is reasonable and
justifiable, an administrator must take into account all relevant factors, including –
(i) the objects of the empowering provision;
(ii) the nature and purpose of, and the need to take, the administrative action;
(iii) the likely effect of the administrative action;
(iv) the urgency of taking the administrative action or the urgency of the matter;
and
(v) the need to promote an efficient administration and good governance.

This section only applies to ‘cases where an administrative action materially and adversely affects the rights of the public’. It can
be distinguished from section 3 as it does not apply to ‘legitimate expectations’ but only to cases where the rights of the public
are adversely affected. Also, it does not apply to cases where one or more individuals are concerned but rather to cases where the
rights of members of the public are concerned. In other words, the section applies to administrative actions that have an adverse
impact of a general kind where the rights of members of the public are at issue and where the impact is not trivial. 114 For
example, say a decision is taken to declare certain national roads toll roads where tolls will be levied via e-toll tags. The
administrative decision will apply to the general public, will affect the rights of the public to use national roads and will have
some impact on everyone who wishes to use such roads. These provisions may then potentially be imposed on the administrator
who makes the decision.
As can be seen from the text of section 4, it has a fairly ‘straightforward structure’. 115 It details the procedures to be
followed in cases where notice and comment procedures are required and where a public enquiry is required and sets out
departures from these obligations.

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 15.2.5.2.5 The right to be given reasons for an administrative action

a) Introduction
In our law it is assumed that there will often be great value in giving reasons for an administrative action. A duty to give reasons
entails a duty to rationalise the decision. As Baxter argues: ‘Reasons therefore help to structure the exercise of discretion, and the
necessity of explaining why a decision is reached requires one to address one’s mind to the decisional referents which ought to be
taken into account.’ 116 Giving reasons also satisfies an important desire on the part of the affected individual to know why a
decision was reached. According to Baxter, ‘This is not only fair: it is also conducive to public confidence in the administrative
decision-making process.’ 117 The most important reason for having to give reasons is that it allows for rational criticism of a
decision. It thus subjects the administration to public scrutiny and it also provides an important basis for appeal or review. Lastly,
where reasons are provided, this ‘may serve a genuine educative purpose, for example where an applicant has been refused on
grounds which he is able to correct for the purpose of future applications’. 118
The right to be given reasons for an administrative action is set out in section 5 of the PAJA. Section 5 provides as follows:

(1) Any person whose rights have been materially and adversely affected by administrative action
and who has not been given reasons for the action may, within 90 days after the date on which
that person became aware of the action or might reasonably have been expected to have become
aware of the action, request that the administrator concerned furnish written reasons for the
action.
(2) The administrator to whom the request is made must, within 90 days after receiving the request,
give that person adequate reasons in writing for the administrative action.
(3) If an administrator fails to furnish adequate reasons for an administrative action it must, subject
to subsection (4) and in the absence of proof to the contrary, be presumed in any proceedings for
judicial review that the administrative action was taken without good reason.
(4) ( a) An administrator may depart from the requirement to furnish adequate reasons if it is
reasonable and justifiable in the circumstances, and must forthwith inform the person
making the request of such departure.
( b) In determining whether a departure as contemplated in paragraph (a) is reasonable and
justifiable, an administrator must take into account all relevant factors, including:
(i) the objects of the empowering provision;
(ii) the nature, purpose and likely effect of the administrative action concerned;
(iii) the nature and the extent of the departure;
(iv) the relation between the departure and its purpose;
(v) the importance of the purpose of the departure; and
(vi) the need to promote an efficient administration and good governance.
(5) Where an administrator is empowered by any empowering provision to follow a procedure
which is fair but different from the provisions of subsection (2), the administrator may act in
accordance with that different procedure.
(6) ( a) In order to promote an efficient administration, the Minister may, at the request of an
administrator, by notice in the Gazette publish a list specifying any administrative action
or a group or class of administrative actions in respect of which the administrator
concerned will automatically furnish reasons to a person whose rights are adversely
affected by such actions, without such person having to request reasons in terms of this
section.
( b) The Minister must, within 14 days after the receipt of a request referred to in paragraph
(a) and at the cost of the relevant administrator, publish such list, as contemplated in that
paragraph.

Section 5 is divided into six subsections. Subsection 1 confers a right to request reasons within 90 days on any person whose
rights have been materially and adversely affected by an administrative act. This right is activated on request. If no such request
has been made, no reasons need to be given unless the Minister, acting in terms of subsection 6, has designated the administrative
action as one for which reasons must automatically be given. Subsection 2 provides that adequate and written reasons must be
given within 90 days after a request has been made. Subsection 3 sets out some of the consequences that arise if an administrator
fails to provide adequate and written reasons. The circumstances in which an administrator can depart from the requirement to
furnish reasons are set out in subsection 4. Finally, subsection 5 allows an administrator to follow an alternative procedure
provided it is fair.

b) Rights and legitimate expectations

Like the right to procedural fairness, a person can claim the right to be given reasons if his or her rights or legitimate expectations

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 have been materially and adversely affected by administrative action. While it is quite clear that section 5 applies to a person who
already has a right or a legitimate expectation, it is not so clear whether it applies to a person who does not already have such a
right or expectation. For example, does this right apply to a person who is applying for a benefit or a licence they do not already
have?
In Transnet Ltd. v Goodman Brothers (Pty) Ltd,119 the SCA had to consider whether a tenderer had a right to reasons under
the interim Constitution for their tender being unsuccessful. This case was decided before the PAJA came into effect. Clearly, a
person who tenders for a contract does not have a right to the contract. Transnet argued that the tenderer was ‘a stranger to the
tender process’ and thus not granting the tender to Goodman Brothers did not adversely affect their rights. 120 As a consequence,
there was no obligation to provide reasons for the decision not to award Goodman Brothers the tender. 121
The SCA focused not on the right to the contract, but rather on the right to lawful and procedurally fair administrative justice.
The Court took the view that if Goodman Brothers were not given reasons, their rights to lawful and fair administrative action
would be adversely affected as there would be no way of knowing whether these rights had been violated. Finding that their
rights were affected, the Court directed Transnet to provide reasons for not awarding the tender to Goodman Brothers. 122
A case that deals much more directly with the issue is Wessels v Minister for Justice and Constitutional Development and
Others.123 The applicant was a regional court magistrate who applied for the post of President of the Regional Court. The
Magistrates Commission found four candidates including the applicant to be appointable and sent this recommendation to the
then Minister of Justice. The Minister appointed magistrate B to the post and provided no response when the applicant asked for
reasons.
The Court rejected the Minister’s contention that the appointment of magistrates was an executive and not an administrative
action. The Minister argued that as the applicant had applied for a post and was unsuccessful, no rights were adversely affected
and hence there was no obligation to provide reasons in terms of section 5 of the PAJA. The High Court held that this would
mean that there would be no obligation to provide reasons for any ‘application cases’. 124
In rejecting this argument, the Court held that the obligation to provide reasons would then arise only in narrow and limited
circumstances and would not give effect to the constitutional right to just administrative action. Such an interpretation, according
to the Court, must be avoided.125 The Court referred to dicta of Kondile AJ in Union of Refugee Women and Others v Director,
Private Security Industry Regulatory Authority and Others,126 where the Constitutional Court held that a refusal to register a
private security company had an adverse effect on their rights. This was held in Wessels to mean that a decision to refuse an
applicant a licence or a benefit adversely affects the rights of the applicant. As a consequence, reasons must be provided. 127
In this case, the Court held that the Minister was obliged to provide reasons and as the Minister did not provide reasons, the
Court, acting in terms of section 5(5) of the PAJA, concluded that the decision was taken without good reason. 128 The
consequence of this was that the Court set aside the appointment of magistrate B.
While reasons must be submitted for both deprivation and determination cases, the nature, quality and quantity of the reasons
submitted may differ depending on whether a person’s rights are being determined or diminished.

PAUSE FOR REFLECTION

Is the requirement to provide reasons an excessive burden?

On the basis of Wessels, a public body must provide reasons to applicants who are unsuccessful in
applying for positions or benefits. Do you think that this imposes an excessive burden on public bodies that
could detract from the performance of their core function? Alternatively, do you think that it would be a
healthy exercise if government gets into the habit of supplying reasons?

c) The meaning of adequate reasons

Once the right to be provided with reasons arises, the administrator is obliged to provide adequate reasons. It is probable that
administrators will submit reasons and the issue will then be whether the reasons provided are adequate. Summarising the law in
the United Kingdom, De Smith, Woolf and Jowell state that the ‘reasons must show that the decision maker successfully came to
grips with the main contentions advanced by the parties’ and must ‘tell the parties in broad terms why they lost or, as the case
may be, won’.129
In a similar vein, in Minister of Environmental Affairs and Tourism and Others v Phambili Fisheries (Pty) Ltd and Another ,
130 Schultz JA approvingly quoted an extract from a judgment of the Federal Court of Australia 131 where that Court said

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 adequate reasons had to be given to enable:

the decision-maker to explain his decision in a way which will enable a person aggrieved to say, in
effect: ‘Even though I may not agree with it, I now understand why the decision went against me. I am
now in a position to decide whether that decision has involved an unwarranted finding of fact, or an
error of law, which is worth challenging.’ This requires that the decision-maker should set out his
understanding of the relevant law, any findings of fact on which his conclusions depend (especially if
those facts have been in dispute), and the reasoning processes which led him to those conclusions. He
should do so in clear and unambiguous language, not in vague generalities or the formal language of
legislation. The appropriate length of the statement covering such matters will depend upon
considerations such as the nature and importance of the decision, its complexity and the time available
to formulate the statement. Often those factors may suggest a brief statement of one or two pages only.
132

In summary, De Ville submits that the determination of adequacy should be made by having regard to the consequences of the
action taken, whether the application involves a benefit or a deprivation of a right, the nature of the right that is adversely
affected, the nature of the proceedings preceding the actions taken, the nature and complexity of the decision, the nature of the
authority taking the decision, the time available to formulate the reasons and the need to ensure administrative efficiency. 133
If the administrator fails to provide adequate reasons, then in the absence of proof to the contrary, it will be presumed that the
administrative action was taken without good reason and, as a consequence, could be reviewed and set aside. The administrator
may depart from the requirement to provide adequate reasons if it is reasonable and justifiable to do so taking into account all the
relevant factors listed in section 5(4)(b) of the PAJA.
The duty to provide reasons will ensure that proper decisions are made at source and that the administrators are both
responsive and accountable to those who are affected by the decisions.

15.3 The right of access to information

15.3.1 Introduction
Section 1 of the Constitution establishes the principle that the South African system of government is based on several values,
including a multiparty system of government ‘to ensure accountability, responsiveness and openness’. 134 The right of access to
information partly gives effect to this norm by establishing for everyone the right of access to information that may potentially
affect them. The right of access to information is therefore one of the most important rights (along with freedom of expression
and the right to vote) contained in the Constitution to ensure the establishment of the ideal government postulated in the founding
values set out in section 1 of the Constitution. In the apartheid era, the state was secretive and often withheld information from
people – something which was, of course, easier to do in the pre-Internet era. The secretiveness of the apartheid state was often
aimed at keeping citizens in the dark about aspects of its policies and actions and was therefore profoundly undemocratic.

PAUSE FOR REFLECTION

The importance of the right of access to information

In 1975, the apartheid government decided to intervene militarily in the civil war which had erupted in
Angola after the withdrawal of the Portuguese from their erstwhile colony. At first, the South African
government denied that South African troops were present in Angola despite the fact that the troops were
at the outskirts of Luanda. This information was kept secret from the South African public. The apartheid
regime saw nothing wrong with lying to the country about the Defence Force involvement in Angola.
South Africans only received confirmation of this invasion when it was revealed in the whites-only
Parliament by Frederick van Zyl Slabbert, a member of the opposition Progressive Federal party, who later
became the Leader of the Opposition before leaving Parliament because he felt that participating in it no
longer served any purpose. Van Zyl Slabbert had to reveal the information in Parliament where he was
protected by parliamentary privilege in order to evade the strict secrecy legislation in place at the time.
Our Constitution now requires the President to inform Parliament promptly whenever the Defence
Force is deployed to prevent the government from misleading the public again in such a flagrant manner.
As the deployment of South African troops in a war situation is a radical step, and as the President is

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 accountable to Parliament and to the voters for taking such a step, the President cannot deploy troops in
secret to avoid accountability for his or her actions. The events of 1975 vividly illustrate how important it
was for the drafters of the Constitution to include the right of access to information in the Bill of Rights.

Section 32 of the Bill of Rights states:

(1) Everyone has the right of access to –

( a) any information held by the state; and
( b) any information that is held by another person and that is required for the exercise or
protection of any rights.
(2) National legislation must be enacted to give effect to this right, and may provide for reasonable
measures to alleviate the administrative and financial burden on the state.

The right of access to information has a political dimension in that an open and free democratic society requires that government
be accountable for its actions. These actions should be informed by rational reasons that government can explain to those affected
by such decisions. It is impossible to hold accountable a government that operates in secrecy. 135 Access to information is
fundamental to encouraging transparency and accountability in government operations. First, transparency aims to promote
accountability in government and second, to promote greater public participation. It is further an important tool in the fight
against corruption.136
Besides the political dimension of the right of access to information, the right is also closely connected to the realisation of
other rights such as the right to freedom of expression, the right to privacy and the right to vote. This is because the right of
access to information is closely related to the right to receive information. In addition, the right of access to information is
grounded, in part, on the principle that an individual should be allowed access to information that is specifically about him or her
or, in more general terms, information that the state uses to make decisions that may affect an individual. The right of access to
information is also crucial in allowing an accused person adequate facilities with which to prepare a defence. 137 In a democratic
society, the effective exercise of the right to vote also depends on the right of access to information. Without access to
information, the ability of citizens to make responsible political decisions and to participate meaningfully in public life is
undermined.138
In Brümmer v Minister for Social Development and Others, the Constitutional Court explained the importance of the right of
access to information in a country founded on ‘values of accountability, responsiveness and openness’ as follows:

To give effect to these founding values, the public must have access to information held by the state.
Indeed one of the basic values and principles governing public administration is transparency. And the
Constitution demands that transparency “must be fostered by providing the public with timely,
accessible and accurate information.” Apart from this, access to information is fundamental to the
realisation of the rights guaranteed in the Bill of Rights. For example, access to information is crucial
to the right to freedom of expression which includes freedom of the press and other media and freedom
to receive or impart information or ideas … The role of the media in a democratic society cannot be
gainsaid. Its role includes informing the public about how our government is run, and this information
may very well have a bearing on elections. The media therefore has a significant influence in a
democratic state. This carries with it the responsibility to report accurately. The consequences of
inaccurate reporting may be devastating. Access to information is crucial to accurate reporting and
thus to imparting accurate information to the public.139

The right of access to information is in stark contrast with the ‘culture of secrecy’ which, as noted above, prevailed in the
apartheid state.140 It is therefore not surprising that the right of access to information was included in the interim Constitution.
Section 23 of the interim Constitution provided that:

Every person shall have the right of access to all information held by the state or any of its organs at
any level of government in so far as such information is required for the exercise or protection of any
of his or her rights.

Constitutional Principle IX further required that the final Constitution make provision for ‘freedom of information so that there
can be open and accountable administration at all levels of government’. To give effect to this Constitutional Principle, the 1996
Constitution expanded the right beyond the scope of of the right protected in the interim Constitution. The right in the final
Constitution expanded the scope of the right to apply to information held by a private person or institution. This extension
recognises the fact that private institutions, such as large corporations, may exercise enormous power in a society. The

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 information these private institutions hold could easily be used to the detriment of individuals or could be required by individuals
to exercise their other rights, including their rights as consumers not to be exploited for profit.
However, for practical purposes, the most important difference between the interim Constitution and the final Constitution is
that the final Constitution extends the right of access to information by placing a duty on the state to enact supplementary
legislation to give effect to the right. The Constitution required this legislation to be adopted within a period of three years after
the commencement of the 1996 Constitution. The Promotion of Access to Information Act (PAIA) 141 was enacted in 2000 to
give effect to section 32 of the Constitution. The PAIA is the principal legal source defining the right of access to information and
the promotion of access to information in South Africa is now almost entirely regulated by the PAIA. 142 This is because of the
principle of subsidiarity which states that:

Where … the Constitution requires Parliament to enact legislation to give effect to the constitutional
rights guaranteed in the Constitution, and Parliament enacts such legislation, it will ordinarily be
impermissible for a litigant to found a cause of action directly on the Constitution without alleging that
the statute in question is deficient in the remedies that it provides. Legislation enacted by Parliament to
give effect to a constitutional right ought not to be ignored. And where a litigant founds a cause of
action on such legislation, it is equally impermissible for a court to bypass the legislation and to decide
the matter on the basis of the constitutional provision that is being given effect to by the legislation in
question.143

A litigant who wishes to gain access to information held by the state or by a private institution will therefore have to follow the
procedures set out in the PAIA and will usually only have the right to gain access to that information if the PAIA allows this.

15.3.2 Interpretation of the Promotion of Access to Information Act 2 of 2000

15.3.2.1 The purpose of the PAIA

It is important to note when interpreting the provisions of the PAIA that the Act was passed with the intention of giving effect to
the right of access to information.144 This means the PAIA is meant to elaborate on section 32 of the Constitution, to make the
section effective in a practical manner and to promote the right set out in the Bill of Rights. 145 This means the courts must
interpret the PAIA generously and purposively and with the necessary attention to the context. 146 When interpreting the PAIA, it
is important to understand that legislation cannot be precisely drafted to anticipate every eventuality. Courts should keep in mind
the broad purpose of the PAIA when confronted with the need to interpret the Act to decide if and how it applies to a unique set
of circumstances. The first step in understanding the PAIA is therefore to identify the various purposes of the Act. 147
Section 9 of the PAIA states:

The objects of this Act are –

( a) to give effect to the constitutional right of access to:
(i) any information held by the State; and
(ii) any information that is held by another person and that is required for the exercise or
protection of any rights;
( b) to give effect to that right:
(i) subject to justifiable limitations, including, but not limited to, limitations aimed at the
reasonable protection of privacy, commercial confidentiality and effective, efficient and
good governance; and
(ii) in a manner which balances that right with any other rights, including the rights in the
Bill of Rights in Chapter 2 of the Constitution;
(c) to give effect to the constitutional obligations of the State of promoting a human rights culture
and social justice, by including public bodies in the definition of “requester”, allowing them,
amongst others, to access information from private bodies upon compliance with the four
requirements in this Act, including an additional obligation for certain public bodies in certain
instances to act in the public interest;
( d) to establish voluntary and mandatory mechanisms or procedures to give effect to that right in a
manner which enables persons to obtain access to records of public and private bodies as swiftly,
inexpensively and effortlessly as reasonably possible; and
(e) generally, to promote transparency, accountability and effective governance of all public and
private bodies by, including, but not limited to, empowering and educating everyone:
(i) to understand their rights in terms of this Act in order to exercise their rights in relation

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 to public and private bodies;
(ii) to understand the functions and operation of public bodies; and
(iii) to effectively scrutinise, and participate in, decision-making by public bodies that affects
their rights.

It is clear from section 9 that the PAIA must be understood and interpreted with reference to the purposes for which section 32
was included in the Bill of Rights as the provisions of the PAIA are aimed at giving effect to the constitutional right of access to
any information held by the state.
Section 11 of the PAIA underscores the rights-based focus of the Act as it casts the duty on those bound by the PAIA to
provide information in peremptory terms – the requester ‘must’ be given access to the report so long as the request complies with
the procedures outlined in the PAIA and the record requested is not protected from disclosure by one of the exemptions set out in
the Act. Under our law, therefore, the disclosure of information is the rule and exemption from disclosure is the exception. 148
As a general rule, a requester must be given access to a record held by a public body 149 if:
• the requester complies with all the procedural requirements set out in the PAIA relating to a request for access to that record
• access to that record is not refused in terms of any ground for refusal as set out in the PAIA. 150

As a a general rule, a requester must be given access to records held by a private body 151 if:
• that record is required for the exercise or protection of any rights
• that person complies with the procedural requirements set out in the PAIA relating to a request for access to that record
• access to that record is not refused in terms of any ground for refusal set out in the PAIA. 152

The PAIA should be interpreted by keeping in mind that the Act envisages that the granting of access to information should be
the default position. Note that the right of access to information from a private body is more limited than the right of access to
information from a public body. It is only when the record is required ‘for the exercise or protection of any rights’ that a private
body is obliged to provide access to that information to a requester. When assessing whether access to information is actually
required, the requester of information from a private body will have to show the private body that the information requested
would be of assistance to him or her.153 The existence of alternative remedies under the common law would be a factor to be
taken into account. The requester of information from a private body will also have to show that a ‘substantial advantage’ will be
gained from access to the information or will have to show an ‘element of need’ for the information. 154
It is unclear whether the requester of information from a private body must show that the record is required for the exercise
of a fundamental right protected in the Constitution or whether the PAIA envisages a broader application of the right to gain
access to information held by a private body by also covering records required to exercise non-constitutional rights. These rights
would include private law rights arising from contractual or delictual obligations. Currie and De Waal argue that the purposes of
the PAIA are best served by a narrower reading of rights. They argue that a requester will only be entitled to a record held by a
private body if the record is required to prevent harm to fundamental rights, including rights protected in the Bill of Rights and
other rights derived from the Bill of Rights protected in common law. 155

PAUSE FOR REFLECTION

The vast majority of requests for access to information in terms of the PAIA to various
public institutions go unanswered
The obligations in the PAIA to provide access to information held by the state and private bodies are
extensive. In legal terms, the heart of the PAIA centres around the various exceptions set out in the Act that
would allow refusal to grant access to records. However, one of the most problematic aspects of the PAIA
relates to something entirely different, namely the refusal or inability of record holders to respond to access
to information requests at all. A 2010 Report reveals that the vast majority of requests for access to
information in terms of the PAIA to various public institutions went unanswered as illustrated in Figure 15.1.
156

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 Figure 15.1 Results of 82 institutions sampled in 2010

This Report was compiled after a total number of 82 institutions were sampled in 2010.

Only 26 institutions responded to the requests for access to information. As the Report explains:

8 institutions out of 23 responded in the national department category, 9 out of 25 institutions

responded on the provincial level, while 8 out of 34 municipalities responded at the local
government level. The 2010 31% result is a cause for concern as it is significantly lower than the
2009 and the 2008 results where we recorded a response of 40% and 39% respectively from the
sampled institutions.157

These statistic do not deal with whether access to information requests were refused. Rather, the statistics
deal with whether access to information requests were responded to at all. Accurate statistics about
whether requests are correctly refused are not available. As we shall see in the next section, the PAIA
contains several exceptions which allow a public or private body to refuse to grant an access to information
request. Unless officials are trained and understand what these exceptions entail, there will be a danger
that they will rely wrongly on one or more of these exceptions to deny a request for access to information.

15.3.2.2 The regulation of access to information by the PAIA

Although non-disclosure of information ought to be the exception, this does not mean that the PAIA does not place limitations on
the right of access to information. It does this by stipulating procedures that need to be followed for making a valid access to
information request. The PAIA also exempts certain information from disclosure as it may be necessary to place ‘reasonable and
justifiable’ limitations on the right of access to information, even in an open and democratic society, to protect other rights or
interests.158 Although the default position in the PAIA is to give access to information to those who request it, at the heart of the
Act are the grounds for justifying a refusal to grant access to information.
In so far as these grounds are concerned, the PAIA provides that the information officer of a public or a private body must
refuse a request for access to records of that body:
• if its disclosure would involve the unreasonable disclosure of personal information about a third party, 159 including a
deceased individual
• if the record contains information which was obtained or is held by the South African Revenue Service for the purposes of
enforcing legislation concerning the collection of revenue 160
• if the record contains trade secrets of a third party; financial, commercial, scientific or technical information other than trade
secrets of a third party, the disclosure of which would be likely to cause harm to the commercial or financial interests of that

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 third party; or information supplied in confidence by a third party, the disclosure of which could reasonably be expected to
put that third party at a disadvantage in contractual or other negotiations or to prejudice that third party in commercial
competition 161
• if the disclosure of the record would constitute an action for breach of a duty of confidence owed to a third party in terms of
an agreement; 162 and a public body may refuse a request for access to a record of the body if the record consists of
information that was supplied in confidence by a third party, the disclosure of which could reasonably be expected to
prejudice the future supply of similar information or information from the same source; and if it is in the public interest that
similar information or information from the same source should continue to be supplied
• if its disclosure could reasonably be expected to endanger the life or physical safety of an individual; if its disclosure would
be likely to prejudice or impair the security of a building, structure or system, including, but not limited to, a computer or
communication system; a means of transport; any other property; methods, systems, plans or procedures for the protection of
an individual in accordance with a witness protection scheme; the safety of the public or any part of the public; or the
security of property as contemplated above 163
• if the record is privileged from production in legal proceedings unless the person entitled to the privilege has waived the
privilege.164

In addition, public body must also refuse to grant access to information:

• if its disclosure could reasonably be expected to cause prejudice to the defence of the Republic; the security of the Republic;
the international relations of the Republic; would reveal information supplied in confidence by or on behalf of another state
or an international organisation; supplied by or on behalf of the Republic to another state or an international organisation in
terms of an arrangement or international agreement with that state or organisation which requires the information to be held
in confidence; or required to be held in confidence by an international agreement or customary international law
• if its disclosure would be likely to materially jeopardise the economic interests or financial welfare of the Republic or the
ability of the government to manage the economy of the Republic effectively in the best interests of the Republic. 165

Despite these provisions, the PAIA contains a general public interest override for requests of most of the records which bodies are
granted the power to deny in the Act.166 In such cases, the public or private body will have to grant access to the information –
despite the information falling within one of the exceptions set out in the Act – if the disclosure of the record would reveal
evidence of:
• a substantial contravention of, or failure to comply with, the law
• an imminent and serious public safety or environmental risk
• the public interest in the disclosure of the record clearly outweighs the harm contemplated in the provision in question.

Note that this public interest override is narrow in scope as it does not cover cases where records would show maladministration
that does not rise to the level of an unlawful act.

15.3.2.3 The question of a ‘judicial peek’ at refused records

In cases where a body refuses to grant access to records, it will be very difficult for a litigant to establish whether the refusal was
done properly in terms of one of the exceptions set out above or whether the refusal was unlawful. The PAIA empowers courts to
review independently the record in order to assess the validity of the exemptions claimed and provides legislative recognition
that, through no fault of their own, the parties may be constrained in their abilities to present and refute evidence. If a person who
requested access to a record is denied access and wishes to appeal the decision to deny him or her access, the PAIA allows the
court to have a ‘judicial peek’ at the requested record to determine whether the refusal was lawfully granted or not. Section 80 –
the so-called ‘judicial peek’ provision of the PAIA – states:

(1) Despite this Act and any other law, any court hearing an application, or an appeal against a
decision on that application, may examine any record of a public or private body to which this
Act applies, and no such record may be withheld from the court on any grounds.
(2) Any court contemplated in subsection (1) may not disclose to any person, including the parties to
the proceedings concerned, other than the public or private body referred to in subsection (1) –
( a) any record of a public or private body which, on a request for access, may or must be
refused in terms of this Act; or
( b) if the information officer of a public body, or the relevant authority of that body on
internal appeal, in refusing to grant access to a record in terms of section 39(3) or 41(4),
refuses to confirm or deny the existence or non-existence of the record, any information as
to whether the record exists.
(3) Any court contemplated in subsection (1) may –
( a) receive representations ex parte; conduct hearings in camera; and prohibit the publication

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 of such information in relation to the proceedings as the court determines, including
information in relation to the parties to the proceedings and the contents of orders made
by the court in the proceedings.

In President of the Republic of South Africa and Others v M & G Media Ltd ,167 the Constitutional Court was required to
determine when to apply this provision. A majority of the Court (per Ngcobo CJ) emphasised that the court has a duty to exercise
its power to have a judicial peek at confidential documents in a responsible manner. 168 A judicial peek facilitates the exercise of
the judicial function where courts may be lacking the material necessary to determine responsibly whether the record falls within
the exemption claimed. A difficulty arises for courts when they apply section 80 as the section does not spell out the
circumstances under which the power to examine the record may be exercised. The majority argued that the discretionary power
they are granted by section 80 must ‘be exercised judiciously, with due regard to the constitutional right of access to information
and the difficulties the parties face in presenting and refuting evidence’. 169 The majority set out the following test:

Courts should exercise their discretion to call for additional evidence in the form of the contested
record only where there is the potential for injustice as a result of the unique constraints placed upon
the parties in access to information disputes. This injustice, as I have pointed out above, may arise
because either the requester or the holder of information is prevented by factors beyond its control
from presenting the evidence necessary to make its case.

As a discretionary power afforded to the courts to prevent injustice, the standard for assessing whether
a court should properly invoke section 80 in a given case is whether it would be in the interests of
justice for it to do so.

… It will generally be in the interests of justice to invoke section 80 where there is doubt, emerging
from the unique limitations parties in access to information disputes face in presenting and refuting
evidence, as to whether an exemption is rightly claimed. This may be the case where, through no fault
of the state, the evidence put forth by it is insufficient to allow the court to responsibly determine
whether the exemptions claimed are valid, or where the validity of the exemptions claimed cannot
responsibly be evaluated without reference to the information sought to be protected.

It may also be in the interests of justice to invoke section 80 where the probabilities are evenly
balanced. Ordinarily, where the probabilities are evenly balanced, the rules of civil procedure would
require a court to find against the holder of information as the bearer of the burden of proof. Where,
however, a court is faced with a record that it acknowledges may or may not be protected, in whole or
in part, from disclosure, and the doubt as to the validity of the exemptions claimed can be explained in
terms of the limitations placed upon the parties in access to information disputes in presenting and
refuting evidence, it would be in the interests of justice for the court to invoke section 80 in order to
responsibly decide the merits on the basis of the additional evidence provided by the record.170

CRITICAL THINKING

A cautious approach to the invoking of section 80

In the minority decisions of the Constitutional Court in M & G Media Ltd, Cameron J cautioned courts
against the exercise of their powers in terms of section 80 of the PAIA. This case dealt with an access to
information request by the Mail & Guardian newspaper. The request related to a report on the conduct of
the 2002 presidential election in Zimbabwe compiled by judges who had been sent to the country by then
President Thabo Mbeki. In his separate judgment, Cameron J disputed the finding of the majority that when
remitting the case to the High Court, that Court could invoke section 80 of the PAIA to have a judicial peek
at the document. This was because the provision ‘should be invoked with care’ and ‘should be resorted to
only in exceptional circumstances’.171 The minority proffered two reasons for this:

First, a cautious approach to section 80 accords with the structure of the statute. The
Constitution creates an entitlement to information held by government, which the statute has
limited under the Bill of Rights. The structure of PAIA is to stipulate the process required to
claim access, and to enumerate the instances where it may be refused. The statute creates an

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 over-riding judicial power to examine the record, but goes on to provide explicitly that the
burden of establishing that an exemption is properly invoked lies on the party claiming it. If the
object of the statute were to create a novel form of proceeding in access disputes, and invest
courts with inquisitorial powers for ready use in disputes, its provisions would not have
included so plain an imposition of the burden on the holder of information.172

Second, the very provisions of section 80 make it plain that the power it confers should be of
rare recourse. The provision makes the court a party to the secrecy claimed, and prohibits it
from disclosing the disputed record to any person, “including the parties to the proceedings
concerned”. In effect, two fundamental principles of the administration of justice are here
upended: first, the adversary nature of the parties’ dispute, in which the court is a disinterested
arbiter, is suspended; and, second, the indispensable attribute of the administration of justice,
its openness, is shrouded. These are consequences that we should be reluctant to countenance
too readily.173

15.4 The right of access to the courts

15.4.1 Introduction
The right of access to court is a fundamental component of the rule of a law in a constitutional democracy. 174 Thus section 34 of
the Bill of Rights states that ‘[e]veryone has the right to have any dispute that can be resolved by the application of law decided in
a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum’.
The inclusion of this section in the Bill of Rights must be seen against the background of the apartheid-era practice of ousting
the jurisdiction of the courts to enquire into the legal validity of certain laws or conduct. This practice was in breach of the rule of
law which establishes the principle, inter alia, that anyone may challenge the legality of any law or conduct. 175 However, it
would only be meaningful to challenge such law or conduct if this could be done in front of an independent and impartial body
like a court otherwise the right to challenge the legality of law or conduct would be illusory. Section 34 is therefore closely
related to upholding the rule of law. As the Constitutional Court stated in Lesapo v North West Agricultural Bank and Another,
section 34:

and the access to courts it guarantees for the adjudication of disputes are a manifestation of a deeper
principle; one that underlies our democratic order. The effect of this underlying principle on the
provision of s 34 is that any constraint upon a person or property shall be exercised by another only
after recourse to a court recognised in terms of the law of the land. … Respect for the rule of law is
crucial for a defensible and sustainable democracy. In a modern constitutional State like ours, there is
no room for legislation which, as in this case, is inimical to a fundamental principle such as that against
self help. This is particularly so when the tendency for aggrieved persons to take the law into their own
hands is a constant threat.176

Section 34 creates the right of access to courts or another tribunal or forum but such other tribunal or forum other than a court
must be independent and impartial. It also creates a due process right that requires a fair and a public hearing. However, it is
important to note that there is a threshold that must be met before this right can be applied, namely that the dispute at issue can, in
fact, be resolved by the application of law.

15.4.2 Threshold question: can the dispute in question be resolved by the application of
law?
Section 34 is clear: the right does not apply to all people who wish to have a dispute between them resolved by a court or
independent tribunal. Some disputes, for example disputes of a purely moral or religious nature, cannot be resolved by the
application of law and individuals with such disputes cannot rely on section 34 to gain access to a court for the purposes of the
court resolving their dispute.177 It would also sometimes be difficult to resolve disputes of a purely political nature in the courts.
178

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 The distinction between moral, religious and political disputes on the one hand and legal disputes on the other is, however,
not that easy to draw. For example, in Ramakatsa and Others v Magashule and Others,179 the Constitutional Court considered
the arguments by the applicants which, to some extent, were of a political nature. The appellants in the case were all members of
the African National Congress (ANC) in the Free State province. They approached the Court with a view to ‘setting aside as
invalid the Free State Provincial Conference of the ANC and all its outcomes on the basis that there were irregularities in many of
the branch meetings that elected delegates to the Provincial Conference’. 180 The Court had to hear the case because section 19 of
the Bill of Rights grants every citizen the right to participate in the activities of a political party. The Court found that it could
therefore look into whether a political party had followed the procedures prescribed by its own constitution.
Other disputes may well be capable of being resolved by the application of law but will nevertheless not fall within the ambit
of section 34. Thus, section 34 does not apply to those aspects of criminal proceedings regulated exhaustively by section 35 of the
Constitution.181 Currie and De Waal argue that the same applies to section 33 which regulates the conduct of administrative
action.182

CRITICAL THINKING

The difficulties faced by courts when dealing with issues of a political nature
In Mazibuko Leader of the Opposition in the National Assembly v Sisulu MP Speaker of the National
Assembly and Others,183 the Western Cape High Court considered whether the National Assembly and its
Speaker had erred in not scheduling a debate on a vote of no confidence in the President of the country
which had been tabled by the official opposition. The Court remarked in general about the difficulties faced
by a court when litigants approach a court to resolve disputes of an essentially political nature.

Courts do not run the country, nor were they intended to govern the country. Courts exist to
police the constitutional boundaries, as I have sketched them. Where the constitutional
boundaries are breached or transgressed, courts have a clear and express role; and must then
act without fear or favour. There is a danger in South Africa, however, of the politicisation of the
judiciary, drawing the judiciary into every political dispute as if there is no other forum to deal
with a political impasse relating to policy or disputes which clearly carry polycentric
consequences beyond the scope of adjudication. In the context of this dispute, judges cannot be
expected to dictate to parliament when and how it should arrange its precise order of business
matters. What courts can do, however, is to say to parliament: ‘you must operate within a
constitutionally compatible framework; you must give content to s 102 of the Constitution; you
cannot subvert this expressly formulated idea of a motion of no confidence; however, how you
allow that right to be vindicated is for you to do, not for the courts to so determine’. I regret the
need to emphasise this point but it appears to me to be vital to the future integrity of the judicial
institution. An overreach of the powers of judges – their intrusion into issues which are beyond
their competence or intended jurisdiction – which have been deliberately and carefully
constructed legally so as to ensure that the other arms of the state deal with these matters, can
only result in jeopardy for our constitutional democracy. In this dispute I am not prepared to
create a juristocracy, and thus do more than that which I am mandated to do in terms of our
constitutional model.184

This passage should not be interpreted to mean that the right in section 34 to approach a court with a
dispute about any breach of the Constitution or ordinary law will evaporate when the legal dispute – despite
its political overtones – remains a dispute that is capable of being resolved by the application of law. If
anybody, including the legislature or any member of the executive, fails to comply with a constitutional duty,
the court will have the responsibility to hear the dispute that may arise from such a failure. The passage,
however, serves as a warning for especially political parties to be circumspect and to think carefully before
approaching a court with a dispute that – while capable of legal resolution – is highly politicised.

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 15.4.3 Access to courts and other forums
Once the threshold set out above has been met, the right in section 34 comes into operation and protects individuals from both
direct and more subtle attempts by the state to prevent their accessing courts to have their legal disputes resolved. This right
contains both a negative obligation and a positive obligation which, in accordance with section 7(2) of the Constitution, place a
duty on the state to ‘respect, protect, promote and fulfil’ all the rights in the Bill of Rights. Where the state places stumbling
blocks in the path of a potential litigant that makes it more difficult or even impossible for the potential litigant to access courts,
the right will be infringed. Similarly, where the state fails to take positive steps to create, maintain and finance the court system, it
will be potentially infringing its positive obligation to protect, promote and fulfil this right.
However, note that section 34 does not entitle a potential litigant to approach any court he or she chooses: a litigant cannot
normally, for example, directly approach the Constitutional Court.185 The rules of jurisdiction in civil proceedings are therefore
not an obstacle to access to courts as long as these rules allow the potential litigant to approach some court which has the
requisite jurisdiction.186 Section 34 does not create a right to a specific decision by the court either. 187

15.4.3.1 A positive obligation on the state

The question arises whether the state has a positive duty not only to create, maintain and finance courts and tribunals, but also
whether the state has the duty to provide individuals with the means that would allow them to access courts and other tribunals.
Given the limited state resources, it is not clear whether the Constitutional Court would make such a finding. However, the North
Gauteng High Court found in Magidiwana and Another v President of the Republic of South Africa and Others ,188 in the context
of that specific case, that such a duty could arise even though the case dealt with a commission of enquiry.
What is clear is that the state does have a positive duty to enhance access to justice through legislative and other measures.
Thus, the legislature is mandated to ensure the impartiality and efficiency of the courts and their accessibility via legislative
measures. Where the legislature and the executive fail to take measures, legislative or otherwise, to ensure that the orders of a
court are obeyed, for example, this may constitute a failure on the state to respect its positive duties in relation to access to courts.
The state is also required to take heed of orders made by courts and to change the manner in which it deals with issues if
instructed to do so.189

15.4.3.2 The prohibition of self-help

One of the reasons why access to courts is so important is that such access provides a structured mechanism though which
disputes can be resolved and helps to prevent lawlessness and self-help which is anathema to the rule of law. In Lesapo, the
Constitutional Court stressed the need for this institutionalising of the resolution of disputes and preventing remedies being
sought through self-help. A trial or hearing before a court or tribunal is therefore not an end in itself. It is a means of determining
whether a legal obligation exists and whether the coercive power of the state can be invoked to enforce an obligation or to prevent
an unlawful act being committed. No one is entitled to take the law into his or her own hands. Self-help, in this sense, is inimical
to a society in which the rule of law prevails. Taking the law into one’s own hands is thus inconsistent with the fundamental
principles of our law.190 It is in this context that the rule against self-help and its importance come into focus. As the
Constitutional Court stated in Lesapo:

This rule against self-help is necessary for the protection of the individual against arbitrary and
subjective decisions and conduct of an adversary. It is a guarantee against partiality and the
consequent injustice that may arise. … It is to emphasise and protect generally, but also specifically for
the protection of the individual, the separation of powers, particularly the separation of the Judiciary
from the other arms of the State. … [B]y ensuring that the courts and other fora which settle
justiciable disputes are independent and impartial [it achieves these goals]. It is a provision
fundamental to the upholding of the rule of law, the constitutional State, the ‘regstaat idee’ …191

15.4.3.3 Does a commission of enquiry constitute an independent and impartial tribunal?

Section 34 provides for the right to have any dispute that can be resolved by the application of the law decided in a fair public
hearing before a court or, where appropriate, another independent and impartial tribunal or forum. It is unclear whether judicial
commissions of enquiry could be considered to constitute independent or impartial tribunals and whether the term ‘dispute’
applies to matters considered by such commissions of enquiry.
It may be considered that commissions of enquiry are fact-finding tribunals. As such, they do not concern themselves with
justiciable matters where their adjudication may bring an end to a dispute. According to this view, a ‘commission is merely

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 investigative in nature with a view to making recommendations to the President’. 192 If we agree with this view, section 34 would
not find application to commissions of enquiry.193
In Magidiwana, the North Gauteng High Court had to determine whether the affected surviving miners were entitled to legal
representation at state expense before the commission of enquiry into the Marikana massacre in which 34 miners were killed by
the police. The Court held that the commission of enquiry fell within the scope of section 34 despite the fact that the commission
was not of a judicial or quasi-judicial nature:

At conceptual level, the general proposition that the proceedings of commissions of inquiry fall outside
the scope of s 34 at the outset, is, to my mind, an over-simplification of a complex situation involving
constitutional rights and a distinct possibility of those rights being adversely affected by the outcome of
the commission. A preferable view is that the right to legal representation at commissions is not an
absolute one, but depends on the context. Counsel for Ledingoane family asserted that the right arises
in the following circumstances:

(a) when the nature and type of inquiry demands that some or all interested parties be legally
represented;
(b) when the interests of justice and the rule of law would be undermined by a failure to uphold the
right;
(c) when the constitutional rights of parties or witnesses appearing before a commission are
implicated or potentially threatened.194

15.5 Labour relations

15.5.1 Introduction
The relationship between an employer and an employee is based on a contract of employment which has traditionally been
regulated by the common law. Unfortunately, the common law principles governing employment contracts do not recognise the
unequal power relations that exist between employers and employees and the fact that they are not in an equal bargaining
position. This is, in fact, also the case when individuals enter into contracts with economically powerful institutions, be it banks,
cell phone companies or furniture stores. In addition, these common law principles also do not recognise the relationships brought
about by the rise of trade unions nor do they facilitate the acquisition of rights through collective bargaining. 195
To address these shortcomings, Parliament has intervened on numerous occasions and passed legislation aimed at
establishing basic conditions of employment, introducing principles of equity and fairness, and promoting collective bargaining.
As a result of these interventions, the employment relationship today is regulated largely by legislation and the rights and
obligations acquired through collective bargaining.
Among the most important statutes regulating the employment relationship are the Labour Relations Act (LRA), 196 the
Basic Conditions of Employment Act (BCEA) 197 and the Employment Equity Act (EEA).198 These Acts all aim to give effect
to various aspects of the rights guaranteed in section 23 of the Constitution which provides that:

(1) Everyone has the right to fair labour practices.

(2) Every worker has the right –
( a) to form and join a trade union;
( b) to participate in the activities and programmes of a trade union; and
(c) to strike.
(3) Every employer has the right –
( a) to form and join an employers’ organization; and
( b) to participate in the activities and programmes of an employers’ organization.
(4) Every trade union and every employers’ organization has the right –
( a) to determine its own administration, programmes and activities;
( b) to organize; and
(c) to form and join a federation.
(5) Every trade union, employers’ organization and employer has the right to engage in collective
bargaining. National legislation may be enacted to regulate collective bargaining. To the extent
that the legislation may limit a right in this Chapter, the limitation must comply with
section 36(1).
(6) National legislation may recognize union security arrangements contained in collective
agreements. To the extent that the legislation may limit a right in this Chapter, the limitation

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 must comply with section 36(1).

As is the case with other rights, the principle of subsidiarity requires that litigants rely first on the provisions of the various Acts
that give effect to the rights contained in the Constitution before they can rely on the rights contained in the Constitution itself.

PAUSE FOR REFLECTION

Regulating the unequal power relationship between employers and employees

The LRA is the national legislation referred to in sections 23(5) and (6) of the Constitution. The stated
purpose of the LRA is to advance economic development and social justice, to maintain industrial peace, to
regulate the work environment and to provide processes to deal with disputes that arise. At the heart of the
LRA is an assumption that employment relationships contain an inherently unequal power relationship
between employers and employees. These relationships require special legal regulation to protect usually
weaker employees and to provide them with an easy and cheap mechanism to enforce their rights. In
essence, achieving fairness in employment relationships is the ultimate aim of the LRA.
According to Grogan, the main features of the LRA are as follows:
• The LRA encourages collective bargaining and the settlement of disputes by enhancing the powers of
the forums that have been set up to achieve these objects.
• The broad definition of an unfair labour practice in the 1956 Labour Relations Act has been replaced
with specific rules and rights, all of which are justiciable in the Commission for Conciliation, Arbitration
and Mediation (CCMA).
• The CCMA has both mediation and arbitration functions. All labour disputes must be processed through
it unless the parties are subject to a collective agreement which makes provision for private arbitration.
• Disputes which cannot be settled by mediation are referred to arbitration either by a commission, an
arbitrator or a judge of the Labour Court depending on the nature of the proceedings.
• Arbitration proceedings are meant to be expeditious and subsequently reviewable and not appealable.
• The LRA affords employees the freedom to strike if they comply with the requirements of the Act.
• Trade unions are given specific rights to organise.
• The LRA regulates bargaining councils whose key function is to facilitate the collective bargaining
process. Collective bargaining refers to the negotiations and interactions between employers and
workers aimed at preventing or settling disputes.199

In National Union of Metal Workers of South Africa and Others v Bader Bop (Pty) Ltd and Another , the Constitutional Court held
that the rights guaranteed in section 23 of the Constitution are aimed at creating a ‘fair industrial relations environment’ and that
collective bargaining between employers and workers is one of the key mechanisms for achieving this goal. 200 The Court stated
that:

In section 23, the Constitution recognises the importance of ensuring fair labour relations. The
entrenchment of the right of workers to form and join trade unions and to engage in strike action, as
well as the right of trade unions, employers and employer organisations to engage in collective
bargaining, illustrates that the Constitution contemplates that collective bargaining between employers
and workers is key to a fair industrial relations environment. This case concerns the right to strike.
That right is both of historical and contemporaneous significance. In the first place, it is of importance
for the dignity of workers who in our constitutional order may not be treated as coerced employees.
Secondly, it is through industrial action that workers are able to assert bargaining power in industrial
relations. The right to strike is an important component of a successful collective bargaining system. In
interpreting the rights in section 23, therefore, the importance of those rights in promoting a fair
working environment must be understood. It is also important to comprehend the dynamic nature of
the wage-work bargain and the context within which it takes place. Care must be taken to avoid setting
in constitutional concrete, principles governing that bargain which may become obsolete or
inappropriate as social and economic conditions change.201

This paragraph provides a succinct description of the context within which the labour relations regime must be judged and the
considerations which animate the proper operation of this regime. As is the case with other aspects of the interpretation of the
provisions of the Bill of Rights, the Court emphasised the fact that such an interpretation and application occurs in a specific (and

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 potentially changing) context. This means that it is not always easy to set down hard-and-fast rules.

15.5.2 The scope and ambit of section 23 of the Constitution

Although the right to fair labour practices guaranteed in section 23(1) of the Constitution applies to ‘everyone’, the other
provisions of section 23 apply to a much narrower category of persons, namely ‘workers’, ‘employers’, ‘trade unions’ and
‘employers’ organisations’.

CRITICAL THINKING

The meaning of ‘everyone’ in the right to fair labour practices

Despite the fact that the right to fair labour practices guaranteed in section 23(1) of the Constitution applies
to ‘everyone’, Cheadle argues that – like the rights guaranteed in sections 23(2) to (5) – it applies only to
workers, employers and their respective organisations. This is because, he argues further, section 23(1)
applies only to those persons who are engaged in a ‘labour practice’. A labour practice is one that arises
from the relationship between workers, employers and their respective organisations. The right to a fair
labour practice should not be read as extending the class of persons beyond those classes envisaged by
the section as a whole.202
It is also important to note that the reference to ‘everyone’ in section 23(1) of the Constitution includes
both workers and employers. In National Education Health & Allied Workers Union (NEHAWU) v University
of Cape Town and Others,203 the applicant argued that the right to fair labour practices applied to workers
only because the term ‘everyone’ referred to human beings and not to juristic persons. The Constitutional
Court, however, rejected this argument. In arriving at its conclusion, the Court held that:

Where the rights in the section are guaranteed to workers or employers or trade unions or
employers’ organisations as the case may be, the Constitution says so explicitly. If the rights in
s 23(1) were to be guaranteed to workers only, the Constitution would have said so. The basic
flaw in the applicant’s submission is that it assumes that all employers are juristic persons. That
is not so. In addition section 23(1) must apply either to all employers or none. It should make no
difference whether they are natural or juristic persons.204

While it is fairly clear what is meant by the terms ‘employer’, ‘trade union’ and ‘employers organisation’, it is less clear what is
meant by the term ‘worker’. The Constitutional Court, however, considered the meaning of the term in its judgment in South
African National Defence Union v Minister of Defence.205
In this case, the applicant applied for an order declaring section 126B(1) of the Defence Act 206 to be unconstitutional and
invalid on the grounds that it infringed section 23(2) of the Constitution. Section 126B(1) of the Defence Act prohibited
permanent members of the South African National Defence Force (SANDF) from joining or becoming members of a trade union.
Section 23(2) of the Constitution provides that that ‘[e]very worker has the right ( a) to form and join a trade union; (b) to
participate in the activities and programmes of a trade union, and ( c) to strike’.
Given that section 23(2) of the Constitution applies only to workers, the first issue the Constitutional Court had to consider
was whether the word ‘worker’ was wide enough to include permanent members of the SANDF. The Court held that it was.
In arriving at this decision, the Constitutional Court began by explaining that permanent members of the SANDF receive
many of the same benefits as other employees, for example a salary, leave, medical and transport benefits, and certain mess
expenses.207 In addition, the Constitutional Court explained further, the International Labour Organisation considers members of
the armed forces to be workers for the purposes of the Convention on the Freedom of Association and Protection of the Right to
Organise 87 of 1948 and the Convention on the Right to Organise and Collective Bargaining 98 of 1949, both of which South
Africa has ratified.208
Even though permanent members of the SANDF are not employees in the full contractual sense of the word, the
Constitutional Court went on to conclude, the factors set out above indicated that the relationship between permanent members of
the SANDF and the SANDF itself was ‘akin to an employment relationship’ and ‘in many respects mirrors those of people
employed under a contract of employment’.209 Although members of the SANDF may be thought to be in a special kind of

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 situation because there is a requirement that members of the armed forces must adhere to strict discipline, 210 the term ‘worker’
nevertheless had to be given a generous interpretation. The need for strict discipline will not necessarily be undermined by
holding that members of the SANDF constitute ‘workers’ for the purpose of section 23(2) ‘because in appropriate circumstances
rights may be limited’.211 After coming to the conclusion that the word ‘worker’ was wide enough to include permanent
members of the SANDF, the Constitutional Court went on to find that section 126B(1) of the Defence Act did infringe
section 23(2) of the Constitution.
A number of important consequences flow from the approach adopted by the Constitutional Court in this case. Among these
are the following:
• First, section 23 of the Constitution does not apply only to persons who are in an employment relationship, but also to
persons who are in a relationship that is ‘akin’ to an employment relationship. This means that neither the existence of a
contract nor the category of contract is strictly necessary for a person who is performing work for another person to be
defined as a ‘worker’ for the purposes of section 23 of the Constitution.
• Second, the extension of labour rights beyond the limits of a contract of employment is in keeping with the different forms of
employment that may be found in a modern economy. Among these are part-time employees, temporary employees, casual
employees, persons employed through employment agencies, home workers and so on. These sorts of employees are often
vulnerable to exploitation because the nature of their employment makes it difficult for them to form and join trade unions
and to bargain collectively.
• Third, while section 23 of the Constitution applies to persons who are in an employment relationship or a relationship akin to
an employment relationship, it does not apply to everyone who works. This is because not everyone who works is an
employee or is akin to an employee. People who own or work in their own businesses, such as independent contractors,
partners and self-employed people, for example, are not employees nor are they akin to employees.

CRITICAL THINKING

What should be the defining characteristic of a worker for the purposes of section 23 of
the Constitution?
Given that the concept of a worker in section 23 of the Constitution is wider than the concept of an
employee under a contract of employment, but not as wide as the concept of a person who owns and works
in his or her own business, the question arises as to who should be protected by section 23. Cheadle
argues in this respect that the defining characteristic for deciding whether a person is a worker for the
purposes of section 23 should not be whether the person has entered into a contract of employment or a
contract for services, but rather whether the person has entered into a personal and dependent work
relationship or is genuinely running his or her own business. In other words, if a person has entered into a
personal and dependent work relationship, he or she should be classified as a worker for the purposes of
section 23 of the Constitution, but not if he or she is genuinely running his or her own business.212
The personal and dependent nature of the work relationship rather than the existence of a contract of
employment, he argues further, should be the defining characteristic of a worker for the purposes of
section 23 of the Constitution for the following reasons:
• First, the provision of personal and dependent work need not take the form of a contract of employment
but may be cast in the form of a contract of service.
• Second, a person who has entered into a personal and dependent work relationship is more vulnerable
to exploitation than a person who genuinely owns and works in his or her own business.
• Third, the purpose underlying section 23 of the Constitution is to protect vulnerable workers from being
exploited in a way that is unfair.213

The personal and dependent nature of the work relationship, Cheadle goes on to concede, may not always
provide a clear answer as to who is a worker for the purposes of section 23 of the Constitution. This is
because there are certain categories of employees who are neither dependent nor in need of protection, for
example executive directors, professional employees or employees with special skills. It is consequently not
clear whether these categories of employees should be defined as workers for the purposes of section 23
of the Constitution or not.214

While section 23 of the Constitution applies only to those persons who are in an employment relationship or in a relationship akin

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 to an employment relationship, it is important to note that it does not apply only to those persons who are in a lawful employment
relationship. Instead, it also applies to those persons who are in an unlawful employment relationship, for example sex workers
employed by a brothel.

PAUSE FOR REFLECTION

Applying section 23 to those persons who are in an unlawful employment relationship

In Kylie v Commission for Conciliation, Mediation and Arbitration,215 the appellant, who was a sex worker,
was dismissed by the owner of the massage parlour where she worked without a prior hearing. After she
was dismissed, she referred her dismissal to the CCMA for arbitration. Before any evidence was heard,
however, the Commissioner dismissed her application on the grounds that the CCMA did not have
jurisdiction to arbitrate this matter because the appellant was engaged in an illegal activity. In South African
law, engaging in sex work as either a client or as a sex worker is a criminal offence.
Kylie then applied to the Labour Court for an order reviewing and setting aside the Commissioner’s
decision. The Labour Court, however, dismissed her appeal on the grounds that by accepting jurisdiction,
the Commissioner would be sanctioning or encouraging illegal activities. In addition, the Labour Court also
held that the primary remedy for an unfair dismissal is reinstatement and it would be untenable for a court
to order reinstatement to an activity that was proscribed by law.
The appellant then appealed successfully to the Labour Appeal Court. In arriving at its decision, the
Labour Appeal Court began by pointing out that the right to fair labour practices guaranteed in section 23(1)
of the Constitution vests not only in those persons who are engaged in lawful activities, but also those
persons who are engaged in unlawful activities such as sex workers.
This is because, the Labour Appeal Court pointed out further, the reference to ‘everyone’ in
section 23(1) of the Constitution indicated that the scope of the right to fair labour practices should be
interpreted broadly. In addition, it also indicated that the right to fair labour practices applied to persons in
employment relationships as well as to persons in relationships that are akin to employment relationships.
216
It was also important to note, the Labour Appeal Court went on to point out, that sex workers are not
stripped of their right to be treated with dignity by their employers simply because they are engaged in
illegal activities. Given that section 23 of the Constitution, at its core, aims to protect the dignity of those in
employment relationships or relationships akin to employment relationships, it follows that section 23 must
also apply to sex workers.217
Having found that the right to fair labour practices guaranteed in section 23 of the Constitution vested in
the appellant, the Labour Appeal Court turned to consider the question of a remedy.
In this respect, the Labour Appeal Court began by explaining that where a person has performed in
terms of an illegal contract, the common law provides that he or she is not allowed to recover his or her
performance using an enrichment-based remedy. This is known as the par delictum rule. To prevent an
injustice from occurring, however, the courts have been given the power to relax the par delictum rule and
to allow a person to recover his or her performance using an enrichment remedy.218
Given the flexible approach that the courts have adopted towards illegal contracts in terms of the
common law, the Labour Appeal Court explained further, there is no reason in principle why the courts
cannot adopt a flexible approach towards illegal contracts in terms of section 23 of the Constitution and the
LRA. Courts should thus be able to grant a remedy or some other form of protection, especially in those
cases where one of the parties forms part of a vulnerable group, such as a sex worker.219
Although there is no reason in principle why the courts cannot grant a remedy or some other form of
protection in terms of section 23 of the Constitution and the LRA where one of the parties to an illegal
contract forms part of a vulnerable group, the Labour Appeal Court went on to explain, this does not mean
that a court can grant the full range of remedies available in terms of the LRA. An order reinstating a sex
worker, for example, would violate the criminal prohibition on prostitution. In these sorts of cases it would be
more appropriate to award the sex worker compensation in the form of money.220 In light of these
considerations, the Labour Appeal Court concluded, there is no doubt that the CCMA did have the
jurisdiction to consider the matter.
The approach in the Kylie case can be contrasted with the more moralistic approach towards sex
workers taken by the majority of the Constitutional Court in S v Jordan and Others (Sex Workers Education

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 and Advocacy Task Force and Others as Amici Curiae 221 discussed in chapter 6. In that judgment the
Constitutional Court in fact stated that the ‘stigma that attaches to prostitutes attaches to them not by virtue
of their gender, but by virtue of the conduct they engage in’ and declined to recognise the law’s
discriminatory effect on women.222

15.5.3 The right to fair labour practices

15.5.3.1 Introduction
Section 23(1) of the Constitution provides that ‘[e]veryone has a right to fair labour practices’. The concept of a fair labour
practice may be traced back to the Wiehahn Commission. This Commission was appointed to report on and make
recommendations about existing labour legislation and published its report in1979. 223 The government accepted the report and
amended the 1956 Labour Relations Act 224 to give effect to the Commission’s recommendations. The most significant of these
amendments was the extension of trade union rights to black employees, the introduction of the concept of unfair labour practices
and the establishment of a new court to deal with labour disputes, namely the Industrial Court.
The 1956 Labour Relations Act defined the concept of an unfair labour practice widely as ‘any labour practice which in the
opinion of the Industrial Court is an unfair labour practice’.225 This definition was amended in 1982 to introduce a greater degree
of specificity. It thus provided that:

Unfair labour practice means any act or omission, other than a strike or lock-out, which has the effect
that –
(i) any employee or class of employees is or may be unfairly affected or that his or their
employment opportunities, work security is or may be prejudiced or jeopardised thereby;
(ii) the business of any employer or class of employers is or may be unfairly affected or disrupted
thereby;
(iii) labour unrest is or may be created or promoted thereby;
(iv) the labour relationship between employer and employee is or may be detrimentally affected
thereby.226

These definitions allowed the Industrial Court to ask not only whether a decision was lawful or not, but also whether a lawful
decision was inequitable or unfair. They therefore conferred an equitable jurisdiction on the Industrial Court. In other words, the
Industrial Court could act not simply as a court of law, but also as a court of equity. It could judge on a case-by-case basis
whether employees had been treated inequitably or unfairly.
Many of the practices that the Industrial Court identified as unfair labour practices were related to dismissals. In this respect,
the Industrial Court found, for example, that a decision to dismiss a worker that was substantively unfair was an unfair labour
practice and so was a decision to dismiss a worker after following an unfair procedure. 227
Apart from these practices, the Industrial Court also found that a failure to renew a fixed-term contract, the dismissal of
strikers during a lawful strike, selective re-employment and the victimisation of workers who engaged in trade union activities
were unfair labour practices.228
When the 1956 Labour Relations Act was repealed by the 1995 LRA, the definition contained in the 1956 Act was replaced
with a number of provisions that codified some of the practices the Industrial Court had identified as unfair labour practices.
Among the most important of these codified provisions are those that regulate dismissals.

15.5.3.2 Unfair dismissals in terms of the Labour Relations Act 66 of 1995

In so far as dismissals 229 are concerned, the LRA provides that a dismissal is unfair if the employer fails to prove on a balance
of probabilities that the reason for the dismissal is a fair one and is related to the employee’s conduct or capacity, or is based on
the employer’s operational requirements, and that the dismissal was effected in accordance with a fair procedure. 230 An
important consequence of this approach is that, in effect, the LRA allows an employee to be dismissed only on the grounds of
misconduct, incapacity or for operational reasons.
Misconduct occurs when an employee breaches a rule of employment. Most collective agreements incorporate codes of
conduct which are binding on the parties to the agreement. If a party to the collective agreement breaches a provision of the code

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 of conduct, he or she will be guilty of misconduct. In addition, Schedule 8 of the LRA provides for a Code of Good Practice:
Dismissal. Item 2 of this Code provides that a dismissal will be unfair if it is not effected for a fair reason and in accordance with
a fair procedure even if it complies with a notice period stipulated in a contract.
The LRA deems certain dismissals to be automatically unfair. Section 187 of the LRA provides in this respect that a
dismissal is automatically unfair if the reason for the dismissal is:

(i) that the employee participated in a protected strike;

(ii) that the employee is pregnant or intends to fall pregnant; or
(iii) that the employer unfairly discriminated against the employee, directly or indirectly, on any
arbitrary ground, including, but not limited to, race, gender, sex, ethnic or social origin, colour,
sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language,
marital status or family responsibility.

Dismissal for incapacity relates to an inability to perform the functions of the job. The Code of Good Practice: Dismissals draws a
distinction between a dismissal for poor work performance 231 and a dismissal because of ill health or injury.232
A dismissal for poor work performance will be fair if the employee fails to meet the standard set by the employer and was
aware or could reasonably be expected to be aware of the standard. In addition, the employer must give the employee a fair
opportunity to meet the standard and dismissal must be an appropriate sanction.
In respect of dismissal because of ill health or injury, the employer must make a determination as to whether it is temporary
or permanent. The employer must also determine the length of time that the employee is likely to be incapacitated and must
investigate possible alternatives, short of dismissal. Relevant factors to consider in determining whether alternatives to dismissal
are feasible include the nature of the job, the period of absence, the seriousness of the illness or injury, and the possibility of
securing a temporary replacement for the ill or injured employee. 233
Operational requirements relate to the economic, technological, structural or similar needs of the employer. If the business
has to be restructured and the staff complement reduced as a consequence of an economic downturn, then the employer may
dismiss employees for operational reasons. The Code of Good Practice issued in terms of the LRA 234 categorises this as a ‘no
fault dismissal’. The Code obliges employers to consider all possible alternatives to dismissal. The employer is also obliged to
consult with the workers in good faith.
The employer must adopt fair criteria in determining who is to be dismissed and generally the last in first out principle must
be used. Employees dismissed on the basis of operational reasons are entitled to severance pay of at least one week’s
remuneration for each year of continuous service. Employees dismissed for operational reasons must be given preference if the
employer hires employees again.
Apart from the requirements set out above, all dismissals must be carried out in accordance with a fair procedure. 235 This is
an independent requirement and a dismissal that is procedurally unfair will be deemed to be an unfair dismissal even if there are
good reasons for the dismissal. The requirements of procedural fairness depend on the circumstances of the case. The seriousness
of the consequences for the affected employee and the nature of the matter will determine the nature of the process to be
followed.
Finally, it is important to note that the employer must give timely notice of the pending disciplinary hearing and must provide
sufficient detail of the gist of the case against the employee in a form that the employee understands. The employee must be
permitted to be represented by a co-worker or union representative. The employee must be given a reasonable opportunity to
dispute the case against him or her and be allowed to put his or her version before an independent person. This includes
challenging witnesses and calling witnesses on his or her behalf. Finally, the person making the decision must provide reasons for
his or her conclusion.236

15.5.3.3 Unfair labour practices in terms of the LRA

Apart from codifying some of the practices that the Industrial Court had identified as unfair labour practices, the 1995 LRA also
contains a general definition of an unfair labour practice. Section 186(2) of the LRA provides in this respect that:

Unfair labour practice means any unfair act or omission that arises between an employer and an
employee involving –
( a) unfair conduct by the employer relating to the promotion, demotion, probation (excluding
disputes about dismissals for a reason relating to probation) or training of an employee or
relating to the provision of benefits to an employee;
( b) the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in
respect of an employee;
(c) a failure or refusal by an employer to reinstate or re-employ a former employee in terms of any
agreement; and
( d) an occupational detriment, other than dismissal, in contravention of the Protected Disclosures

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 Act, 2000 (Act 26 of 2000), on account of the employee having made a protected disclosure
defined in that Act.

The act or omission complained of must be between an employee and his or her employer and must not extend beyond the
employment relationship. It regulates the most important facets of the employment relationship such as promotion, training,
provision of benefits, suspensions, disciplinary action, failure to reinstate in accordance with an agreement and actions in
contravention of the Protected Disclosures Act. Thus, an employee alleging that he or she has been treated in a manner that
contravenes section 186(2) can use the procedures prescribed in the LRA to seek relief.

15.5.3.4 Unfair labour practices in terms of section 23(1) of the Constitution

Given that the LRA deals extensively with the right to fair labour practices, it is unlikely that the parties to a labour dispute will
rely on the constitutional right to institute a claim for an unfair labour practice. Despite this fact, the Constitutional Court has
discussed the scope and ambit of section 23(1) of the Constitution on more than one occasion. While the Labour Appeal Court
and the Labour Court are responsible for overseeing the interpretation and application of the LRA, this does not mean the
Constitutional Court has no role to play in the determination of fair labour practices. ‘Indeed,’ said the Court, ‘it has a crucial role
in ensuring that the rights guaranteed in section 23(1) are honoured.’ 237
Thus in NEHAWU, for example, the Constitutional Court held that when it comes to determining what amounts to a fair
labour practice regard must be had to what is fair to both sides. 238 In addition, the Court held further there must also be an
appreciation of the inherent tensions in the employee/employer relationship and an attempt must be made to accommodate these
differing concerns appropriately.239
The focus of section 23(1) is, broadly speaking, the relationship between the worker and the employer and the continuation of
that relationship on terms that are fair to both. In giving content to that right, it is important to bear in mind the tension between
the interests of the workers and the interests of the employers which is inherent in labour relations. Care must therefore be taken
to accommodate, where possible, these interests so as to arrive at the balance required by the concept of fair labour practices.
The approach adopted in NEHAWU was confirmed in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others.240
In this case, the Court decided that a commissioner did not have to defer to an employer’s decision on sanctions. In arriving at
this decision, the Court said:

Neither the Constitution nor the LRA affords any preferential status to the employer’s view of the
fairness of the dismissal. It is against constitutional norms and against the right to fair labour practices
to give pre-eminence to the views of either party to a dispute. Dismissal disputes are often emotionally
charged. It is therefore all the more important that a scrupulous even-handedness be maintained. The
approach of the Supreme Court of Appeal tilts the balance against employees.241

In NEHAWU, the Constitutional Court also recognised that fairness is incapable of precise definition, especially in light of the
tension that exists between the interests of workers and the interests of employers. It is accordingly a value judgment which
depends on the circumstances of each case.
Our Constitution is unique in constitutionalising the right to fair labour practice. However, the concept is not defined in the
Constitution. The concept of fair labour practice is incapable of precise definition. This problem is confounded by the tension
between the interests of the workers and the interests of the employers that is inherent in labour relations. Indeed, what is fair
depends on the circumstances of a particular case and essentially involves a value judgment. It is therefore neither necessary nor
desirable to define the concept.242

15.5.4 The right of every worker to form and join a trade union
Given the unequal power of individual workers/employees on the one hand and employers on the other hand, the right of workers
to form trade unions that can protect the interests of individual workers is a pivotal aspect of a fair labour relations regime.
Section 23(2)(a) of the Constitution provides that ‘[e]very worker has the right ( a) to form and join a trade union’. Taken together
with section 23(3)(a) of the Constitution, which provides that ‘[e]very employer has the right to form and join an employers’
organisation’, this right gives effect to the right to freedom of association in a labour context.

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 PAUSE FOR REFLECTION

Was the Constitutional Court correct when it held that the total ban on trade unions in
the SANDF was unconstitutional and invalid?
As we have already seen in South African National Defence Union, the Constitutional Court found that
section 126B(1) of the Defence Act, which prohibited members of the SANDF from joining or becoming
members of a trade union, infringed the right to join a trade union guaranteed in section 23(2) of the
Constitution. After coming to this conclusion, the Constitutional Court had to consider whether the
infringement was reasonable and justifiable in terms of the limitation clause.
In this respect, the Minister argued that section 126B(1) of the Defence Act was necessary to maintain
a disciplined military force. If soldiers were allowed to join a union, bargain collectively and subsequently to
strike, the Minister argued further, military discipline would be seriously and adversely affected and this
would have grave consequences for the security of the country.243
In response, the applicant argued that granting permanent members of the SANDF the right to join a
union would not affect military discipline and weaken the combat readiness of the SANDF because it was
not claiming the right to strike, but simply the right to join or form a trade union and to bargain collectively. A
trade union, the applicant argued further, could function and further the interests of its members without
participating in strike action.244
The Constitutional Court pointed out that while the state is clearly entitled to take steps to achieve the
legitimate constitutional goal of maintaining a disciplined and effective defence force, there is no evidence
to suggest that permitting permanent members of the SANDF to join a trade union, no matter how its
activities are circumscribed, will undermine the discipline and efficiency of the SANDF.245
Given this conclusion, the Court found that the total ban on trade unions in the SANDF went beyond
what is reasonable and justifiable to achieve the legitimate state objective of a disciplined and effective
military force. Such a ban could not therefore be justified in terms of the limitation clause and
section 126B(1) of the Defence Act had to be declared unconstitutional and invalid.246
The mere fact that trade unions are entitled to operate in the SANDF does not mean, however, the
Constitutional Court also observed, that they should enjoy the same rights and powers as all other trade
unions. A trade union operating in the SANDF may be subject to controls and restrictions aimed at
achieving military discipline and efficiency provided these controls and restrictions satisfy the requirements
of the limitation clause.247
In 2009, approximately 1 000 disgruntled members of the SANDF participated in an illegal march on
the Union Buildings in Pretoria demanding better salaries. Unfortunately, the march turned violent and the
police had to use water cannon, rubber bullets and teargas to disperse the soldiers. The following day, the
Minister of Defence, Ms Lindiwe Sisulu called the march ‘a serious and immediate threat to national
security’.248 The Minister’s comments were premised on the idea that the existence of a trade union in the
defence force was by its very nature problematic and potentially threatened the national security of the
country.
The question arises whether the Constitutional Court was correct when it held that the total ban on
trade unions in the SANDF was unconstitutional and invalid. Did the Court err when it made this decision or
is there is a distinction between the general principle – that trade unions should be allowed in the armed
forces – and the specific rogue actions of the soldiers involved in the incident described above?

A trade union is defined in the LRA as ‘an association of employees whose principle purpose is to regulate relations between
employees and employers, including any employers’ organisation’.249 Chapter II of the LRA regulates the right of every worker
to form and join a trade union. Section 2 of the LRA provides in this respect as follows:

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 A trade union is defined in the LRA as ‘an association of employees whose principle purpose is to regulate relations between
employees and employers, including any employers’ organisation’.249 Chapter II of the LRA regulates the right of every worker
to form and join a trade union. Section 2 of the LRA provides in this respect as follows:

(1) Every employee has the right –

( a) to participate in forming a trade union or federation of trade unions; and
( b) to join a trade union, subject to its constitution.
(2) Every member of a trade union has the right, subject to the constitution of that trade union –
( a) to participate in its lawful activities;
( b) to participate in the election of any of its office-bearers, officials or trade union
representatives;
(c) to stand for election and be eligible for appointment as an office-bearer or official and, if
elected or appointed, to hold office; and
( d) to stand for election and be eligible for appointment as a trade union representative and, if
elected or appointed, to carry out the functions of a trade union representative in terms of
this Act or any collective agreement.
(3) Every member of a trade union that is a member of a federation of trade unions has the right,
subject to the constitution of that federation –
( a) to participate in its lawful activities;
( b) to participate in the election of any of its office-bearers or officials; and
(c) to stand for election and be eligible for appointment as an office-bearer or official and, if
elected or appointed to hold office.

Section 5 of the LRA protects the individual rights conferred on employees by the Act. 250 Chapter 2 of the LRA also confers
somewhat similar rights on employers. Section 6 provides in this respect as follows:

(1) Every employer has the right –

( a) to participate in forming an employers’ organisation or federation of employers’
organisations; and
( b) to join an employers’ organisation, subject to its constitution.
(2) Every member of an employers’ organisation has the right, subject to the constitution of that
employers’ organisation –
( a) to participate in its lawful activities;
( b) to participate in the election of any of its office-bearers or officials; and
(c) if –
(i) a natural person, to stand for election and be eligible for appointment as an
office-bearer or official and, if elected or appointed, to hold office;
(ii) if a juristic person, to have a representative stand for election, and be eligible
for appointment, as an office-bearer or official and, if elected or appointed, to
hold office.
(3) Every member of an employers’ organisation that is a member of a federation of employers’
organisations has the right, subject to the constitution of that federation –
( a) to participate in its lawful activities;
( b) to participate in the election of any of its office-bearers or officials; and
(c) if –
(i) a natural person, to stand for election and be eligible for appointment as an
office-bearer or official and, if elected or appointed, to hold office; or
(ii) if a juristic person, to have a representative stand for election, and be eligible
for appointment, as an office-bearer or official and, if elected or appointed, to
hold office.

Section 7 of the LRA protects the individual rights conferred on employers by the Act. 251

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 PAUSE FOR REFLECTION

Do closed shop and agency shop agreements infringe the right to freedom of
association?
Sections 25 and 26 of the LRA make provision for so-called closed shop and agency shop agreements. A
closed shop agreement is a collective agreement entered into by a majority union and an employer or
employers organisation. The agreement provides that all employees covered by the agreement must
become members of the majority trade union. An employee who refuses to join the majority union or who is
refused membership may be dismissed.252 An agency shop agreement is a collective agreement entered
into by a majority union and an employer or employers organisation. This agreement does not compel all
employees to become members of the majority union, but does require non-members to contribute an
agency fee to the majority union as a condition of employment.253
A difficult question that arises in respect of these agreements is whether they infringe the right to
freedom of association and, in particular, the right not to associate guaranteed in section 23(2)(a) of the
Constitution and section 4 of the LRA. To answer this question, Du Toit suggests that a two-stage enquiry
should be adopted:

The first question is whether, in fact, the closed shop provision does limit the right to freedom of
association in a constitutional sense. This involves examining whether any formal limitation of
the above rights by a closed shop agreement is outweighed by its promotion of other basic
rights contained in the Constitution, notably the right of trade unions to engage in collective
bargaining. Through ‘internal balancing’ of these related rights, it may be concluded that
section 26 in a substantive sense reinforces rather than limits those rights. If, on the other hand,
it is found to be a limitation, the second question is whether it can be justified in terms of
section 36 of the Constitution.254

15.5.5 The right of every worker to participate in the activities and programmes of a trade
union
Section 23(2)(b) provides that ‘[e]very worker has the right to participate in the activities and programmes of a trade union’.
Taken together with section 23(3)(b), which provides that ‘[e]very employer has the right to participate in the activities and
programmes of an employers’ organization’, these rights give effect to the right to organise. Organisational rights make it
possible for trade unions to recruit members, to interact and engage with them in the workplace, to elect union representatives, to
access certain information for the purposes of collective bargaining, to maintain financial stability, and thus ultimately to promote
the system of collective bargaining.255 The LRA grants unions several organisational rights designed to ensure that they are able
to compete for members, remain financially stable and perform their day-to-day functions. These organisational rights contained
in the LRA therefore aim to give substance to the general rights conferred on unions by the Constitution. 256
Chapter 3 of the LRA regulates the organisational rights of trade unions. These organisational rights may be divided into five
categories, namely:
• trade union access to the workplace 257
• deductions of trade union subscriptions 258
• election of trade union representatives 259
• leave for trade union activities 260
• disclosure of information.261

As its name suggests, the right of trade union access to the workplace provides that trade union officials may have access to an
employer’s premises for purposes of recruiting members, communicating with them or for holding meetings outside working
hours.
The right to deductions of trade union subscriptions provides that members of trade unions may authorise their employers to
deduct their trade union subscriptions from their salaries and remit the subscriptions to the trade unions.
The right to elect trade union representatives provides for the recognition of elected shop stewards for certain purposes, most
importantly, perhaps, to represent trade union members in grievance and disciplinary proceedings.
The right to leave for trade union activities provides that employees who are union office bearers are entitled to reasonable

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 amounts of time off during working hours to attend to union business.
The right to disclosure of information provides that a union may require the disclosure of certain information.

PAUSE FOR REFLECTION

Is a minority union entitled to take lawful strike action?

Section 11 of the LRA provides that a trade union may only claim the organisational rights set out in
sections 12, 13 and 15 of the Act if it is ‘sufficiently representative’ of the employees employed by an
employer in a workplace. Sections 14(1) and 16(1) provide that a trade union may only claim the
organisational rights set out in sections 14 and 16 respectively if it has as members a majority of the
employees employed by an employer in a workplace. This means the LRA only confers organisational
rights on unions which can demonstrate at least the minimum threshold of support. This does not mean that
minority unions will never acquire these rights. They can do so with the employer’s support or by
demonstrating support through strike action. This was confirmed in NUMSA.
In this case, the Constitutional Court held that while the organisational rights set out in sections 12 to
16 of the LRA may be claimed as a right only by a representative trade union, there is nothing to prevent
other trade unions from obtaining organisational rights through other means, including industrial action. In
doing so, the Court relied on international law precedent and identified two important principles:
• First, the Court said that organisational rights are closely associated with the right to freedom of
association, which is ordinarily interpreted to afford unions the right to recruit members and to represent
those members at least in individual workplace grievances. Also, unions should have the right to strike
to enforce collective bargaining demands.
• Second, it must be assumed that unions have the right to take industrial action to pursue their
demands.262

In this case, the key issue the Constitutional Court had to decide was whether a minority union and its
members were entitled to take lawful strike action to persuade an employer to recognise its shop stewards.
The Court held that they were.

15.5.6 The right of every worker to strike

Section 23(2)(c) of the Constitution provides that ‘[e]very worker has the right to strike’. The right to strike occurs when workers
withhold their labour in an effort to pressurise an employer to accede to their demands. It is recognised that the right to strike
addresses the power imbalances and allows for effective collective bargaining.
In NUMSA, the Constitutional Court held that the right to strike is important for two reasons:
• First, the right to strike protects the dignity of workers who, in our constitutional order, may not be treated as coerced
employees.
• Second, this right is an important component of a successful collective bargaining system. This is because it is through
industrial action that workers are able to assert bargaining power in industrial relations. 263

Section 213 of the LRA defines a strike as follows:

Strike means the partial or complete concerted refusal to work, or the retardation or obstruction of
work, by persons who are or have been employed by the same employer or by different employers, for
the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest
between employer and employee, and every reference to ‘work’ in this definition includes overtime
work, whether it is voluntary or compulsory.

The LRA regulates the right of every worker to strike. This section prescribes the procedural and substantive requirements that
must be met for a strike to be lawful and protected. In so far as the procedural requirements are concerned, section 64(1) of the
LRA provides that every employee has the right to strike and every employer has the recourse to lock-out if:
• the issue has been referred for conciliation either to a bargaining council or to the CCMA and a certificate indicating that the
parties are unable to resolve the issues has been issued
• the employer, the Bargaining Council or the employers’ organisation has been given at least 48 hours’ notice of the
commencement of the strike, in writing

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 • the employees, the trade union or the Bargaining Council has been given at least 48 hours’ notice of the commencement of
the lock-out, in writing.

In those cases in which the state is the employer, at least seven days’ notice of the commencement of the strike or lock-out must
be given.264
Section 64 also prescribes the circumstances when it is permissible to depart from the statutory requirements listed above.
These include cases in which:
• the parties to the dispute are members of a bargaining council and the dispute has been dealt with by that council
• the strike conforms to procedures in a collective agreement
• the strike is in response to an unlawful lock-out by the employer.

PAUSE FOR REFLECTION

Who is required to give notice of the commencement of a strike?

Although section 64 of the LRA provides that an employer must be given at least 48 hours’ notice of the
commencement of a strike in writing, it does not say who should give this notice. The question of who is
required to give such a notice was considered by the Constitutional Court in its judgment in South African
Transport and Allied Workers Union (SATAWU) and Others v Moloto NO and Another.265
In this case, a company called Equity Aviation (Pty) Ltd (Equity) employed 1 157 people. Of these
employees, 725 were members of the South African Transport and Allied Workers Union (SATAWU).
SATAWU was, therefore, the majority union at Equity. On 13 November 2003, SATAWU referred a wage
dispute to the CCMA for conciliation. Unfortunately, this attempt at conciliation failed and on 15 December
2003 the CCMA issued a certificate to that effect. On the same day, SATAWU issued a strike notice to
Equity in accordance with section 64(1)(b) of the LRA.
When the strike action commenced, however, members not only of SATAWU but also of the other
minority unions represented at Equity joined the strike even though they had not issued a strike notice in
accordance with section 64(1)(b). Given this failure, Equity warned the non-SATAWU employees to return
to work because it considered their participation in the strike to be unlawful. When they refused to return to
work, Equity dismissed them for unauthorised absence from work during the strike. Section 64(1)(b) states
that striking employees are protected and cannot be fired if certain procedural requirements are met,
including the requirement that ‘at least 48 hours’ notice of the commencement of the strike, in writing, has
been given to the employer’.
For the majority, the starting point of the enquiry was the Constitution which protects the right to strike
as a fundamental right without expressly limiting this right. The majority affirmed that constitutional rights
conferred without express limitation should not be cut down by interpreting ambiguous legislative provisions
as imposing implicit limitations on them.266
As section 64(1)(b) contains no express requirement that every employee who intends to participate in
a protected strike must personally or through a representative give notice of the commencement of the
intended strike, nor that the notice must indicate who will take part in the strike, it was sufficient that
SATAWU had given notice that it would strike. As the majority stated:

The point of departure in interpreting section 64(1) is that we should not restrict the right to
strike more than is expressly required by the language of the provision, unless the purposes of
the Act and the section on ‘a proper interpretation of the statute … imports them.’ The relevance
of a restrictive approach is to raise a cautionary flag against restricting the right more than is
expressly provided for. Intrusion into the right should only be as much as is necessary to
achieve the purpose of the provision and this requires sensitivity to the constraints of the
language used.267

It is an accepted interpretative principle in our constitutional jurisprudence that if there is more than one
interpretation of a statutory provision that is constitutionally compliant, the interpretation that best conforms
with the spirit, purport and objects of the Bill of Rights should be preferred. In this case, the interpretation
not requiring every non-unionised member to give notice of their intention to take part in a strike organised
by a union best conforms to the spirit, purport and object of the Bill of Rights.268
This becomes even more evident if we recall that the right to strike is protected in the Constitution at

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 least partly in recognition of the fact that there are disparities in the social and economic power held by
employers and employees. Employers have far more power than individual employees and to redress the
inequality in social and economic power in employer/employee relations, employees are granted the right to
strike to even out the playing field. To require individual employees to give detailed information of not only
when they will strike, but how many of them will strike, ‘would run counter to the underlying purpose of the
right to strike in our Constitution – to level the playing fields of economic and social power already generally
tilted in favour of employers’.269 As the majority pointed out:

to hold otherwise would place a greater restriction on the right to strike of non-unionised
employees and minority union employees than on majority union employees. It is these
employees, much more than those who are unionised or represented by a majority union, who
will feel the lash of a more onerous requirement. There is no warrant for that where they were
already denied the right to bargain collectively on their own behalf in the preceding process.270

The minority judgment took a more restrictive view of the rights of strikers and is more closely aligned with
the interests of employers than with those of employees. Focusing on the objects of the LRA instead of on
the relevant section in the Bill of Rights which guarantees employees the right to strike, the minority found
that employers would be negatively affected if not all employees were required either individually or through
their representatives to give notice to employers that they were going to embark on a strike.271
In contrast to the majority view, which focused on the imbalances in power between striking workers
and their employers, the minority seemed to assume that employers were powerless in the face of a strike.
Accordingly, the minority claimed:

if a notice gives an employer no indication of which of its employees might strike, it is nigh
impossible to conceive how the employer will prepare properly for the impending power play.
How will it make an informed decision as to whether or not to yield to the employees’ demands?
And, if it resists, how will it take proper steps to protect its business, the employees and the
public and engage meaningfully in pre-strike regulatory discussions regarding issues such as
picketing rules? 272

The minority would therefore have reinterpreted the relevant section of the LRA so as to require that
employees provide an employer with a notice:

that makes it possible for the employer to reasonably identify the employees that may strike.
And whilst this requirement may well place a burden on the exercise of the right to strike, the
constitutionality of the provisions is not in the balance and it is therefore unnecessary to resolve
the question.273

The two judgments therefore seem to reflect rather stark ideological differences between the judges on the
Constitutional Court as well as differences in how to view the relationship between the provisions of the Bill
of Rights, on the one hand, and provisions of legislation giving effect to those rights on the other.
The majority seems to be decidedly more progressive by assuming that the right to strike contained in
the Bill of Rights should be limited as little as possible to ensure the levelling of the playing field between
employers and employees. They would therefore oppose an interpretation of the legislation that would
impose limitations on this right unless such limitations are expressly stated in the LRA itself.
The minority seems to be rather more sympathetic to employers and less enthusiastic about protecting
the rights of striking workers. They are also more eager to interfere in the work of the democratically elected
Parliament by reinterpreting legislation passed by that Parliament in such a manner that it would limit the
rights of workers even if that was perhaps not what the democratically elected Parliament intended to do.
274

In so far as the substantive requirements that must be met for a strike to be lawful are concerned, the LRA draws a distinction
between disputes of rights and disputes of interests.
Rights disputes revolve around the interpretation and application of existing rights and are generally arbitrable through the
bargaining councils or through the labour courts.
Disputes of interest relate to proposed new terms and conditions of employment. These disputes can be the subject of
industrial action as parties use either strike action or lock-out in an attempt to strengthen their bargaining positions.

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 15.5.7 The right to engage in collective bargaining

15.5.7.1 Introduction
The right to strike, as well as the organisational rights of unions, must be viewed in the light of the broader aims of unions and
their members, namely to engage in collective bargaining to improve the working conditions of workers. The assumption is that
workers will be more powerful if they bargain collectively than if they bargain as individuals, thus levelling the playing field.
Section 23(5) of the Constitution provides that ‘[e]very trade union, employers’ organization and employer has the right to
engage in collective bargaining. National legislation may be enacted to regulate collective bargaining. To the extent that the
legislation may limit a right in this Chapter, the limitation must comply with section 36(1)’.
Grogan describes collective bargaining as the process:

by which employers and organised groups of employees seek to reconcile their conflicting goals
through mutual accommodation. The dynamic of collective bargaining is demand and concession; its
objective is agreement. Unlike mere consultation, therefore, collective bargaining assumes willingness
on each side not only to listen and to consider the representations of the other but also to abandon fixed
positions where possible in order to find common ground.275

Collective bargaining works best when the parties have relatively equal bargaining power and when this happens in an
atmosphere of mutual trust and respect.

15.5.7.2 The right to engage in collective bargaining and the LRA

The LRA does not impose a legally enforceable obligation on employers and employees to engage in collective bargaining.
However, it does seek to promote and facilitate collective bargaining in terms of which employee organisations and employers
and employer organisations negotiate on matters of mutual interest that concern their sector. The main purpose of these
negotiations is to preserve industrial peace. Much of these negotiations occur in bargaining councils created for the various
sectors and areas. Thus there is a bargaining council for the local government sector as there is for the metal and engineering
industries, the motor industry and the building industry. Bargaining councils have to be registered in terms of the LRA. 276

PAUSE FOR REFLECTION

The exclusion of a duty to bargain from the LRA

Prior to the enactment of the LRA in 1995, the Industrial Court held that employers were legally required to
recognise representative trade unions and bargain with them in certain circumstances. This duty to bargain,
however, was not absolute and arose only in those cases in which an employer’s refusal to bargain could
be classified as an unfair labour practice. To determine whether an employer’s refusal to bargain was an
unfair labour practice, the Industrial Court took various factors into account, such as the interests of the
employer and the interests of the employees.277
The drafters of the LRA, however, decided to adopt a different approach and deliberately excluded any
mention of a duty to bargain from the definition of an unfair labour practice. The reasons behind this
decision are set out in the Explanatory Memorandum to the Labour Relations Bill. The Memorandum states
that ‘[a] notable feature of the draft Bill is the absence of any statutory duty to bargain. In its deliberations
on a revised system of collective bargaining, the Task Team gave consideration to three competing
models’.278
The first of these models, the Memorandum states further:

is a system of statutory compulsion, in which a duty to bargain is underpinned by a statutory

determination of the levels at which bargaining should take place and the issues over which
parties are compelled to bargain. The second model is not dissimilar though more flexible. It
relies on intervention by the judiciary to determine appropriate levels of bargaining and
bargaining topics. The third model, unanimously adopted by the Task Team, is one that allows
the parties, through the exercise of power, to determine their own arrangements.

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 …

The exercise of power, or indeed persuasion, is given statutory impetus by the draft Bill’s
provision for organisational rights and a protected right to strike.279

As Van Niekerk points out, the approach adopted by the Task Team involves a trade-off. On the one hand,
there is a voluntary system of collective bargaining, while on the other hand there is a strong set of
organisational rights for registered trade unions, coupled with a right to strike over recognition and
bargaining demands.280

The functions of bargaining councils include the conclusion of collective agreements, the enforcement of these collective
agreements and the prevention and resolution of labour disputes.281 Once agreements are reached, they are regarded as collective
agreements and are binding on all parties to the bargaining council.282 Application can be made to the Minister to extend the
collective agreement to persons who are not party (non-parties) to the bargaining council but who are employed in the sector and
area over which the bargaining council has jurisdiction.283
An application may be made if one or more of the registered trade unions representing the majority of members and one or
more of the employers’ organisations whose members employ the majority of employees that are party to the bargaining council
support the extension.284 In addition, ministerial approval is dependent on whether the non-parties fall within the scope of the
bargaining council, on whether there exists an independent body to grant exemptions to non-parties and if the terms of the
agreement do not discriminate against non-parties.
By extending collective agreements to non-parties, parity and uniformity is maintained in that particular sector in respect of
earnings, conditions of service and issues of mutual interest. Non-parties aggrieved by their inclusion are able to argue their cases
before an independent person appointed in terms of the collective agreement.

15.5.7.3 The right to engage in collective bargaining and the Constitution

Although the LRA does not impose a legally enforceable obligation on employers to engage in collective bargaining, it is not
clear whether this approach is consistent with the right to engage in collective bargaining guaranteed in section 23(5) of the
Constitution. In other words, it is not clear whether section 23(5) of the Constitution imposes a legally enforceable obligation on
employers to engage in collective bargaining or not.
According to Cheadle, the right to engage in collective bargaining may be divided into three elements: 285
• First, there is the negative freedom to bargain collectively. This freedom may be enforced against the state if it passes
legislation that prohibits collective bargaining or has the effect of prohibiting collective bargaining. In addition, it may also
be enforced against an employers’ organisation or trade union that, by collective agreement or by the exercise of economic
power, prevents employers and workers from engaging in collective bargaining.286
• Second, there is the right to use economic power. In its judgment in Certification of the Constitution of The Republic of South
Africa, 1996,287 the Constitutional Court held that the right to bargain collectively contained within it the right to exercise
some economic power against partners in collective bargaining, such as dismissal, the employment of alternative or
replacement labour, and the unilateral implementation of new conditions of employment. 288
• Third, there is the positive right to bargain collectively. This right may be enforced against an employer or trade union which
refuses to engage in collective bargaining and is usually referred to by its correlative as the duty to bargain. It is the most
controversial element because it contains an element of compulsion. In terms of this right, the state may compel employers
and trade unions to bargain collectively.289

While section 23(5) of the Constitution encompasses the negative freedom to bargain collectively and the right to use economic
power, Cheadle argues that it does not include the positive right to bargain collectively for the following three reasons:
• First, a duty to bargain is more than just a right as it involves policy choices such as the form and level of collective
bargaining. This results in a complex system that requires a delicate balance to maintain it. To impose a duty to bargain may
tip the balance in favour of ‘unanticipated and unfortunate effects’.290
• Second, international labour standards do not impose a duty to bargain. The ILO Committee of Freedom of Association, for
example, has held that collective bargaining will only be effective if it assumes a voluntary quality and does not entail
recourse to compulsory measures which will alter the voluntary nature of such bargaining. 291
• Third, a careful examination of the words of section 23(5) of the Constitution shows that it is restricted to a freedom to

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 bargain collectively and that the forms, processes, institutions and levels are subject matters for the legislature. 292

In South African National Defence Union v Minister of Defence and Others ,293 the SCA adopted the same approach as Cheadle.
The Court held that while the Constitution does recognise and protect the central role of collective bargaining in our labour
dispensation, it does not impose a legally enforceable duty to bargain on employers and trade unions. Unfortunately, the
Constitutional Court did not find it necessary to decide whether the Constitution imposes a legally enforceable duty to bargain in
the same case.294 It did, however, note that a legally enforceable duty to bargain would draw the courts into controversial and
difficult issues:

[I]t should be noted that were section 23(5) to establish a justiciable duty to bargain, enforceable by
either employers or unions outside of a legislative framework to regulate that duty, Courts may be
drawn into a range of controversial industrial relations issues. These issues would include questions
relating to the level at which bargaining should take place (ie the level of the workplace, at the level of
an enterprise, or at industrial level); the level of union membership required to give rise to that duty;
the topics of bargaining and the manner of bargaining. These are difficult issues, which have been
regulated in different ways in the recent past in South Africa, as the general principles governing
labour relations in South Africa have changed several times since the 1980s when the modern trade
union movement emerged.295

PAUSE FOR REFLECTION

Does section 23(5) of the Constitution impose a legally enforceable duty to bargain on
employers and trade unions?
As pointed out above, both the SCA and the Constitutional Court considered the question as to whether
section 23(5) of the Constitution imposes a legally enforceable duty to bargain on employers and trade
unions in their judgments in the case of South African National Defence Union (II).
The facts of this case were as follows. After the Constitutional Court declared section 126B(1) of the
Defence Act, which prohibited permanent members of the SANDF from being members of a trade union,
unconstitutional and invalid in 1999,296 the Minister of Defence issued regulations regulating labour
relations in the SANDF. These regulations were set out in Chapter 20 of the General Regulations of the
South African National Defence Force and the Reserve.
Chapter 20 provided, inter alia, that once a union could prove that it had 5 000 SANDF members, it
could apply to be registered as a military trade union. Once a military trade union could prove that it had
15 000 SANDF members, it could apply for membership of the Military Bargaining Council (MBC). The
purpose of the MBC was to negotiate and bargain collectively to reach agreement on matters of mutual
interest between the Department of Defence and members represented by military trade unions.
After the applicant, SANDU, was registered as a military trade union and admitted to the MBC, a
number of disputes arose between it and the Department of Defence. Unfortunately, the MBC was unable
to resolve most of these disputes. Following the postponement of a number of meetings, SANDU wrote a
letter to the Department in which it threatened to engage in labour unrest unless its demands were met.
In response, the Minister of Defence wrote a letter to SANDU indicating that any industrial action by
SANDU’s members would be unlawful. He also called on SANDU to withdraw its threat and stated that
negotiations with SANDU in the MBC would be suspended until it did so. When SANDU received the
Minister’s letter, it immediately withdrew its threat and asked the Minister to resume negotiations with it. The
Minister, however, refused to do so unless certain conditions were met.
Following the Minister’s refusal to resume negotiations in the MBC, SANDU brought five different
applications against the Minister in the High Court. Two of these were consolidated and heard by Van der
Westhuizen J. A further two were also consolidated and heard by Smit J and the remaining application was
heard by Bertelsman J. Some of these applications dealt with the disputes that had arisen between SANDU
and the Department of Defence and some of them dealt with the Minister’s decision to withdraw from
negotiations in the MBC.
In so far as the Minister’s decision to withdraw from negotiations was concerned, SANDU argued in all
three cases that section 23(5) of the Constitution imposes a legally enforceable duty to bargain on
employers and that the Minister’s decision was therefore unconstitutional and invalid. Smit J and
Bertelsman J accepted this argument while Van der Westhuizen J rejected it. All three judgments were then
taken on appeal to the SCA.

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 The SCA rejected SANDU’s argument. The Court held that section 23(5) does not impose a legally
enforceable duty to bargain on employers and that the Minister’s decision was not therefore
unconstitutional and invalid.
In its judgment, the SCA began by noting that the phrase ‘the right to engage in collective bargaining’
was open to at least three possible interpretations:

It may mean that the contemplated national legislation to regulate collective bargaining must
provide for an employer or a union called upon to bargain to comply with the demand on pain of
being ordered to do so. On the other hand it may mean that the envisaged national legislation
must provide the framework within which employers, employers’ organisations and employees
may bargain; or it may mean no more than that no legislative or other governmental act may
effectively prohibit collective bargaining.297

When it comes to interpreting the rights guaranteed in the Bill of Rights, the SCA noted further, section 39
of the Constitution provides that a court, tribunal or forum must promote the values that underlie an open
and democratic society based on human dignity, equality and freedom, that it must consider international
law and that it may consider foreign law.298
In so far as international law is concerned, the SCA went on to note, the ILO’s Convention on Freedom
of Association and Protection of the Right to Organise 1948 as well as its Conventions on the Right to
Organise and Collective Bargaining 1949, and on Collective Bargaining 1981, were all particularly helpful
because they adopted a voluntarist approach towards collective bargaining.299
Taking the approach adopted in these Conventions together with the fact that both the interim
Constitution and the LRA adopted a voluntarist approach to collective bargaining,300 the SCA held that it
was quite clear that while the Constitution recognises and protects collective bargaining, it does not impose
a legally enforceable duty to bargain on employers or employees.301
After losing in the SCA, SANDU appealed to the Constitutional Court. Unfortunately, the Constitutional
Court held that it was not necessary for it to consider whether section 23(5) of the Constitution imposes a
legally enforceable duty to bargain on employers or employees. This is because Chapter 20 was
specifically enacted to give effect to section 23(5) and in those cases in which legislation has been enacted
to give effect to a constitutional right, and where the constitutional validity of that legislation has not being
challenged, a litigant may not bypass that legislation and rely on the Constitution directly.302
This means, the Constitutional Court held further, that:

a litigant who seeks to assert his or her right to engage in collective bargaining under
section 23(5) should in the first place base his or her case on any legislation enacted to regulate
the right, not on section 23(5). If the legislation is wanting in its protection of the section 23(5)
right in the litigant’s view, then that legislation should be challenged constitutionally. To permit
the litigant to ignore the legislation and rely directly on the constitutional provision would be to
fail to recognise the important task conferred upon the Legislature by the Constitution to
respect, protect, promote and fulfil the rights in the Bill of Rights.303

In light of these points, the Constitutional Court went on to conclude, it was not necessary for it to decide
whether section 23(5) of the Constitution imposes a legally enforceable duty to bargain on the Department
of Defence. Instead, it simply had to decide whether Chapter 20 of the Regulations did so.304 Before
turning to consider this question, however, the Court warned that if section 23(5) was interpreted in a
manner that did impose a legally enforceable duty to bargain on employers and trade unions outside any
legislative framework, the courts would be called on to decide a wide range of controversial and difficult
issues, such as the level at which bargaining should take place (i.e. at the level of the workplace, at the
level of an enterprise, or at industry level); the level of union membership required to give rise to the duty;
the topics of bargaining and the manner of bargaining. This was clearly not desirable.305

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 SUMMARY

Some rights – the right to administrative justice, access to information, access to courts and labour rights among them – enhance
the democratic nature of the state as they allow the exercise of many of the other rights in an effective manner. These rights are
partly aimed at equalling the playing field by requiring the powerful to adhere to pre-announced rules, to act in a relatively
transparent manner and to share information, and to provide individuals with access to courts which will assist them to enforce
these and other rights.
To prevent abuse of power in the exercise of discretionary powers, the right to administrative justice guaranteed in section 33
of the Constitution provides that these powers must be exercised in a manner that is lawful, reasonable and procedurally fair.
Courts are empowered to review such decisions and to set them aside, not because they are substantively wrong but because they
do not conform to the requirements of administrative justice. However, normally when challenging an administrative decision, a
litigant will not be able to rely on section 33 of the Constitution, but will rather have to rely on the provisions of the Promotion of
Administrative Justice Act (PAJA) which was passed to give effect to section 33. After an applicant has managed to show that the
exercise of public power in question falls into the ambit of an administrative action as defined by section 1 of the PAJA, he or she
is entitled to claim the administrative rights set out in the PAJA. Among the most important of these administrative rights are the
following: the right to lawful administrative action; the right to reasonable administrative action; the right to procedural fairness;
and the right to be given reasons for an administrative decision. The content of each of these rights is described in detail in the
relevant sections of the PAJA. It is important for lawyers to familiarise themselves with these provisions of the PAJA if they want
to have an administrative action reviewed on any of the grounds listed above.
The right of access to information is a pivotal right aimed at enhancing the quality of democracy and protecting our country
against the re-establishment of a culture of secrecy that is anathema to open and accountable government. Section 32 of the
Constitution thus guarantees for everyone the right of access to any information held by the state and any information that is held
by another person and that is required for the exercise or protection of any rights. As is the case with the right to administrative
justice guaranteed in section 33, legislation – in this case the Promotion of Access to Information Act (PAIA) – was passed to
give effect to the constitutional right. Normally when requesting access to information, litigants will have to rely on the
previsions of the PAIA and not on section 32 of the Constitution. The PAIA contains different rules for accessing information
held by the state and information held by private parties. As a general rule, a requester must be given access to a record held by a
public body if the requester complies with all the procedural requirements set out in the PAIA relating to a request for access to
that record and access to that record is not refused in terms of any ground for refusal as set out in the PAIA. As general rule, a
requester must be given access to records held by a private body if that record is required for the exercise or protection of any
rights, that person complies with the procedural requirements set out in the PAIA relating to a request for access to that record
and access to that record is not refused in terms of any ground for refusal set out in the PAIA. However, the PAIA provides for an
extensive list of exceptions which allow a private or public body to refuse to provide access to the requested information and it is
important to study these exceptions carefully.
The right of access to court is a fundamental component of the rule of a law in a constitutional democracy. Thus, section 34
of the Bill of Rights states that ‘[e]veryone has the right to have any dispute that can be resolved by the application of law
decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum’. Some
disputes, for example disputes of a purely moral or religious nature, cannot be resolved by the application of law and individuals
with such disputes cannot rely on section 34 to gain access to a court for the purposes of the court resolving their dispute.
However, when a dispute can be resolved by the application of law, then those involved in the dispute have the right to approach
a court although there is no general obligation on the state to fund cases brought to court by individuals.
Section 23 of the Constitution recognises the importance of ensuring fair labour relations and guarantees several rights for
employees, employers and trade unions. Section 23 provides not only that everyone has the right to fair labour practices, but also
that every worker has the right to join a trade union, that every employer has the right to join an employers’ organisation and that
every trade union, employers’ organisation and employer has the right to engage in collective bargaining. The rights contained in
section 23 of the Bill of Rights are largely given effect to in various pieces of legislation, most notably the Labour Relations Act
(LRA), the Basic Conditions of Employment Act (BCEA) and the Employment Equity Act (EEA). Litigants with a labour law
dispute will normally have to rely on these Acts and not directly on the Constitution when they approach a court. A litigant who
wishes to approach a court with a labour related issue will have to make a detailed study of the relevant provisions of the
applicable Act.

1 Currie, I and De Waal, J (2013) The Bill of Rights Handbook 6th ed 645.
2 See, for example, Dyzenhaus, D (1991) Hard Cases in Wicked Legal Systems: South African Law in the Perspective of Legal Philosophy.
3 Baxter, L (1984) Administrative Law 3.
4 S 24 of the interim Constitution provided that
[e]very person shall have the right to –
(a) lawful administrative action where any of his or her rights or interests is affected or threatened;
(b) procedurally fair administrative action where any of his or her legitimate expectations is affected or threatened;

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 (c) be furnished with reasons in writing for administrative action which affects any of his or her rights or interests unless the reasons for such
action have been made public; and
(d) administrative action which is justifiable in relation to the reasons given for it where any of his or her rights is affected or threatened.
5 S 33(1) of the Constitution.
6 S 33(2) of the Constitution.
7 Kohn, L and Corder, H (2013) ‘Judicial regulation of administrative action’ International Encyclopaedia of Laws available at http://www.ielaws.com
/index.htm.
8 Currie, I and De Waal, J (2001) The New Constitutional and Administrative Law, Vol 1 Constitutional Law 37.
9 (CCT31/99) [2000] ZACC 1; 2000 (2) SA 674; 2000 (3) BCLR 241 (25 February 2000) para 45.
10 Kohn and Corder (2013).
11 Plasket, C (2007) Post-1994 administrative law in South Africa: The Constitution, the Promotion of Administrative Justice Act 3 of 2000 and the
common law Speculum Juris 21(1):25–40 at 25.
12 S 33(3) of the Constitution.
13 Act 3 of 2000.
14 Pharmaceutical Manufacturers para 33.
15 Pharmaceutical Manufacturers para 44.
16 (CCT 59/2004) [2005] ZACC 14; 2006 (8) BCLR 872 (CC); 2006 (2) SA 311 (CC) (30 September 2005) paras 96–6. See also Bato Star Fishing (Pty) Ltd
v Minister of Environmental Affairs and Tourism and Others (CCT 27/03) [2004] ZACC 15; 2004 (4) SA 490 (CC); 2004 (7) BCLR 687 (CC) (12 March
2004) para 22; Walele v City of Cape Town (CCT 64/07) [2008] ZACC 11; 2008 (6) SA 129 (CC); 2008 (11) BCLR 1067 (CC) (13 June 2008) para 29.
17 New Clicks SA paras 95–6.
18 Currie and De Waal (2013) 649.
19 Currie and De Waal (2013) 650–1.
20 See, for example, Ismail v New National Party in the Western Cape and Others (2001) JOL 8206 (C).
21 See Currie and De Waal (2013) 651.
22 See, for example, Bato Star Fishing para 22 where O’Regan stated that:
The common law informs the provisions of PAJA and the Constitution, and derives its force from the latter. The extent to which the common law
remains relevant to administrative review will have to be developed on a case-by-case basis as the courts interpret and apply the provisions of
PAJA and the Constitution.
23 Act 4 of 2000.
24 Kaunda and Others v President of the Republic of South Africa (CCT 23/04) [2004] ZACC 5; 2005 (4) SA 235 (CC); 2004 (10) BCLR 1009 (CC)
(4 August 2004) para 244.
25 S 79(1) of the Constitution provides that ‘[t]he President must either assent to and sign a Bill passed in terms of this Chapter or, if the President has
reservations about the constitutionality of the Bill, refer it back to the National Assembly for reconsideration’.
26 S 91(2) of the Constitution provides that ‘[t]he President appoints the Deputy President and Ministers, assigns their powers and functions, and may
dismiss them’.
27 S v Dodo CCT 1/01) [2001] ZACC 16; 2001 (3) SA 382 (CC); 2001 (5) BCLR 423 (CC) (5 April 2001).
28 S 86(2) of the Constitution provides that ‘[t]he Chief Justice must preside over the election of the President or designate another judge to do so. The
procedure set out in Part A of Schedule 3 applies to the election of the President’.
29 S 84(2)(f) of the Constitution provides that ‘[t]he President is responsible for appointing commissions of enquiry’. See also President of the Republic of
South Africa and Others v South African Rugby Football Union and Others (SARFU III) (CCT16/98) [1999] ZACC 11; 2000 (1) SA 1; 1999 (10) BCLR
1059 (10 September 1999).
30 Act 8 of 1947.
31 S 1(1)(a) of the Commissions Act. See also SARFU III.
32 (CCT16/98) [1999] ZACC 11; 2000 (1) SA 1; 1999 (10) BCLR 1059 (10 September 1999).
33 SARFU III para 141.
34 SARFU III para 142.
35 SARFU III para 143.
36 SARFU III para 147.
37 SARFU III para 148.
38 (887/2010) [2011] ZASCA 221; 2012 (2) SA 151 (SCA); [2012] 1 All SA 412 (SCA) (30 November 2011).
39 Democratic Alliance v eThekwini Municipality para 21.
40 (CCT 122/11) [2012] ZACC 24; 2012 (12) BCLR 1297 (CC); 2013 (1) SA 248 (CC) (5 October 2012) paras 41–2. The quote from O’Regan J is from
Brink v Kitshoff NO (CCT15/95) [1996] ZACC 9; 1996 (4) SA 197; 1996 (6) BCLR 752 (15 May 1996) para 35.
41 (CCT 01/07) [2007] ZACC 20; 2008 (1) SA 566 (CC); 2008 (1) BCLR 1 (3 October 2007).
42 Masetlha para 77.
43 Masetlha para 81.
44 Masetlha para 77.
45 (CCT 54/09) [2010] ZACC 4; 2010 (3) SA 293 (CC); 2010 (2) SACR 101 (CC); 2010 (5) BCLR 391 (CC) (23 February 2010).
46 Albutt para 69.
47 Democratic Alliance v President of South Africa para 34.
48 Democratic Alliance v President of South Africa para 36.
49 Democratic Alliance v President of South Africa para 39.
50 Hoexter, C ‘The rule of law and the principle of legality in South African administrative law today’ in Carnelley, M and Hoctor, S (eds) (2011) Law,
Order and Liberty: Essays in Honour of Tony Matthews 61.
51 Price, A (2013) The evolution of the rule of law South African Law Journal 130:649 at 654–5.
52 The powers and functions referred to in paras (aa) to (ii) are as follows:
(aa) the executive powers or functions of the National Executive, including the powers or functions referred to in section 79(1) and (4), 84(2)(a
), (b), (c), (d), (f), (g), (h), (i) and (k), 85(2)(b), (c), (d) and (e), 91(2), (3), (4) and (5), 92(3), 93, 97, 98, 99 and 100 of the Constitution;
(bb) the executive powers or functions of the Provincial Executive, including the powers or functions referred to in section 121(1) and (2),
125(2)(d), (e) and (f), 126, 127(2), 132(2), 133(3)(b), 137, 138, 139 and 145(1) of the Constitution;
(cc) the executive powers or functions of a municipal council;
(dd) the legislative functions of Parliament, a provincial legislature or a municipal council;
(ee) the judicial functions of a judicial officer of a court referred to in section 166 of the Constitution or of a Special Tribunal established
under section 2 of the Special Investigating Units and Special Tribunals Act, 1996 (Act No. 74 of 1996), and the judicial functions of a
traditional leader under customary law or any other law;

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 (ff) a decision to institute or continue a prosecution;
(gg) a decision relating to any aspect regarding the nomination, selection, or appointment of a judicial officer or any other person, by the
Judicial Service Commission in terms of any law;
(hh) any decision taken, or failure to take a decision, in terms of any provision of the Promotion of Access to Information Act, 2000; or
(ii) any decision taken, or failure to take a decision, in terms of section 4(1).
53 The concept of a decision is defined in s 1 of the PAJA as follows:
‘decision’ means any decision of an administrative nature made, proposed to be made made, or required to be made, as the case may be, under an
empowering provision, including a decision relating to:
(a) making, suspending, revoking or refusing to make an order, award or determination;
(b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;
(c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;
(d) imposing a condition or restriction;
(e) making a declaration, demand or requirement;
(f) retaining, or refusing to deliver up, an article; or
(g) doing or refusing to do any other act or thing of an administrative nature, and a reference to a failure to take a decision must be construed
accordingly.
54 S 1.
55 AAA Investments (Proprietary) Limited v Micro Finance Regulatory Council and Another (CCT51/05) [2006] ZACC 9; 2006 (11) BCLR 1255 (CC);
2007 (1) SA 343 (CC) (28 July 2006) para 40.
56 S 239 of the Constitution states:
(2) ‘organ of state’ means –
(a) any department of state or administration in the national, provincial or local sphere of government; or
(b) any other functionary or institution –
(i) exercising a power or performing a function in terms of the Constitution or a provincial constitution; or
(ii) exercising a public power or performing a public function in terms of any legislation,
but does not include a court or a judicial officer.
57 (CCT 49/00) [2001] ZACC 23; 2001 (3) SA 925 (CC); 2001 (9) BCLR 883 (CC) (7 June 2001) para 22.
58 Langeberg Municipality para 27.
59 (CCT 43/09) [2009] ZACC 30; 2010 (3) BCLR 212 (CC); 2010 (4) SA 55 (CC) (9 October 2009).
60 Joseph para 26. See also the SCA judgment in Grey’s Marine Hout Bay (Pty) Ltd and Others v Minister of Public Works and Others [2005] ZASCA 43;
2005 (6) SA 313 (SCA) para 23.
61 Joseph para 31.
62 Joseph para 42. See also Premier, Province of Mpumalanga and Another v Executive Committee of the Association of Governing Bodies of State Aided
Schools: Eastern Transvaal (CCT10/98) [1998] ZACC 20; 1999 (2) SA 91; 1999 (2) BCLR 151 (2 December 1998) para 41.
63 Joseph para 26.
64 Joseph para 26.
65 Act 32 of 2000.
66 Joseph paras 33–9.
67 Joseph para 42.
68 Joseph para 46.
69 Joseph para 30.
70 Joseph para 59.
71 Joseph para 60.
72 Hoexter, C (2007) Administrative Law 224.
73 Klaaren, J and Penflod, G ‘Just administrative action’ in Woolman, S and Bishop, M (eds) (2013) Constitutional Law of South Africa 2nd ed rev service 5
63.77.
74 Klaaren and Penflod (2013) 63.77.
75 SARFU III para 40.
76 SARFU III para 40.
77 (CCT51/05) [2006] ZACC 9; 2006 (11) BCLR 1255 (CC); 2007 (1) SA 343 (CC) (28 July 2006) para 127.
78 See Kohn and Corder (2013).
79 Hira and Another v Booysens and Another 1992 (4) SA 69 (A) 70E.
80 See Pepcor Retirement Fund v Financial Services Board 2003 (6) SA 38 (SCA) as well as, generally, Kohn and Corder (2013).
81 Pharmaceutical Manufacturers para 76.
82 1947 (2) SA 984 (A).
83 Hoexter (2007) 293.
84 See Kohn and Corder (2013) 8. See also Hoexter, C (2004) The principle of legality in South African administrative law Macquarie Law Journal
3(4):165–86 at 172.
85 1988 (3) SA 132 (A) 152A–D.
86 Union Government (Minister of Mines and Industries) v Union Steel Corporation (South Africa) Ltd 1928 AD 220 at 236; National Transport
Commission and Another v Chetty’s Motor Transport (Pty) Ltd 1972 (3) SA 726 (A) 735; The Administrator, Transvaal and The Firs Investments (Pty)
Ltd v Johannesburg City Council 1971 (1) SA 56 (A) 79–80; Johannesburg City Council v The Administrator, Transvaal and Mayofis 1971 (1) SA 87 (A)
96A–D. See, however, the minority judgment of Jansen JA in Theron en Andere v Ring van Wellington van die NG Sendingkerk in Suid-Afrika en Andere
1976 (2) SA 1 (A) 14–21.
87 Bato Star Fishing para 43.
88 (CCT 27/03) [2004] ZACC 15; 2004 (4) SA 490 (CC); 2004 (7) BCLR 687 (CC) (12 March 2004).
89 Bato Star Fishing para 44.
90 Bato Star Fishing para 45.
91 For a discussion on procedural fairness that precedes the adoption of the PAJA, see the Constitutional Court judgments in Bel Porto School Governing
Body and Others v Premier of the Western Cape Province and Another (CCT58/00) [2002] ZACC 2; 2002 (3) SA 265; 2002 (9) BCLR 891 (21 February
2002); Premier, Mpumalanga.
92 See Currie and De Waal (2013) 675.
93 De Smith, SA, Woolf, H and Jowell, JL (1995) Judicial Review of Administrative Action 431.
94 Lloyd v Mcmahon [1987] AC 625 at 702.
95 [1993] 3 All Er 92 (HL) at 106.

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 96 These comments have been quoted with approval by our courts in Du Preez and Another v Truth and Reconciliation Commission 1997 (3) SA 204 (A)
and Chairman: Board of Tariffs and Trade and Others v Brenco Incorporated (285/99) [2001] ZASCA 67 (25 May 2001).
97 (CCT10/98) [1998] ZACC 20; 1999 (2) SA 91; 1999 (2) BCLR 151 (2 December 1998).
98 Premier, Mpumalanga para 39.
99 Premier, Mpumalanga para 41.
100 This conflict has been said to have been caused by a drafting error. See Currie and De Waal (2013) 675.
101 Joseph para 42.
102 Council of Civil Service Unions and Others v Minister for the Civil Service [1984] 3 All ER 935 (HL).
103 (79/2001) [2003] ZASCA 11 (14 March 2003) para 20.
104 (CCT 64/07) [2008] ZACC 11; 2008 (6) SA 129 (CC); 2008 (11) BCLR 1067 (CC) (13 June 2008) para 14.
105 Walele para 37.
106 Walele para 38.
107 Hoexter (2007) 334.
108 Hoexter (2007) 337.
109 Currie and De Waal (2013) 677.
110 Premier, Mpumalanga para 41.
111 Joseph paras 62–3.
112 (1) (384/2000) [2002] ZASCA 44 (17 May 2002).
113 Currie and De Waal (2013) 680.
114 Currie and De Waal (2013) 681.
115 Currie and De Waal (2013) 681.
116 Baxter (1984) 228.
117 Baxter (1984) 228.
118 Baxter (1984) 228. See also Transnet Ltd. v Goodman Brothers (Pty) Ltd (373/98) [2000] ZASCA 62; 2001 (1) SA 853 (SCA) (9 November 2000)
para 5.
119 (373/98) [2000] ZASCA 62; 2001 (1) SA 853 (SCA) (9 November 2000).
120 Goodman Brothers para 9.
121 Goodman Brothers para 10.
122 Goodman Brothers para 5.
123 (594/09) [2009] ZAGPPHC 81; 2010 (1) SA 128 (GNP) (2 June 2009).
124 Wessels para 10.
125 Wessels para 27.
126 (CCT 39/06) [2006] ZACC 23; 2007 (4) BCLR 339 (CC); (2007) 28 ILJ 537 (CC) (12 December 2006).
127 Wessels 15.
128 Wessels 26.
129 De Smith, Woolf and Jowell (1995) 354.
130 (32/2003, 40/2003) [2003] ZASCA 46; [2003] 2 All SA 616 (SCA) (16 May 2003).
131 Ansett Transport Industries (Operations) Pty Ltd and Another v Wraith and Others (1983) 48 ALR 500 at 507 (lines 23–41).
132 Phambili Fisheries para 40.
133 De Ville, J (2005) Judicial Review of Administrative Action in South Africa 294.
134 S 1(d).
135 President of the Republic of South Africa and Others v M & G Media Ltd (CCT 03/11) [2011] ZACC 32; 2012 (2) BCLR 181 (CC); 2012 (2) SA 50 (CC)
(29 November 2011) para 10.
136 Currie and De Waal (2013) 692.
137 Currie and De Waal (2013) 692.
138 M & G Media Ltd para 10.
139 (CCT 25/09) [2009] ZACC 21; 2009 (6) SA 323 (CC); 2009 (11) BCLR 1075 (CC) (13 August 2009) paras 62–3.
140 Truth and Reconciliation Commission of South Africa (1998) Report: Volume 1 Chapter 8 The Destruction of Records para 24; Volume 2 Chapter 2 The
State Outside SA Between 1960 and 1990 paras 10–19.
141 Act 2 of 2000.
142 For an overview of the application of the PAIA, see Holness, D ‘The right of access to information’ in Govindjee, A and Vrancken, P (2009) Introduction
to Human Rights Law 192–6.
143 New Clicks SA para 437; Walele para 29.
144 See s 9 of the PAIA.
145 Currie and De Waal (2013) 696.
146 Currie and De Waal (2013) 696.
147 Currie and De Waal (2013) 697.
148 M & G Media Ltd para 9.
149 S 1 of the PAIA defines a public body as:
(a) any department of state or administration in the national or provincial sphere of government or any municipality in the local sphere of
government; or
(b) any other functionary or institution when –
(i) exercising a power or performing a duty in terms of the Constitution or a provincial constitution; or
(ii) exercising a public power or performing a public function in terms of any legislation.
150 S 11(1) of the PAIA.
151 S 1 of the PAIA defines a private body as:
(a) a natural person who carries or has carried on any trade, business or profession, but only in such capacity;
(b) a partnership which carries or has carried on any trade, business or profession; or
(c) any former or existing juristic person, but excludes a public body.
152 S 50 of the PAIA.
153 Unitas Hospital v Van Wyk and Another (231/05) [2006] ZASCA 34; 2006 (4) SA 436 (SCA); [2006] 4 All SA 231 (SCA) (27 March 2006) para 17
where the SCA stated:
The threshold requirement of ‘assistance’ has thus been established. If the requester cannot show that the information will be of assistance for the
stated purpose, access to that information will be denied. Self-evidently, however, mere compliance with the threshold requirement of ‘assistance’
will not be enough.

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 154 Clutchco (Pty) Ltd v Davis (035/04) [2005] ZASCA 16; [2005] 2 All SA 225 (SCA); 2005 (3) SA 486 (SCA) (24 March 2005) para 13.
155 Currie and De Waal (2013) 705.
156 South African Human Rights Commission (2010) Golden Key Awards Report on Access to Information in South Africa (with the Open Democracy
Advice Centre) available at http://www.opendemocracy.org.za/wp-content/uploads/2010/10/2010-GKA-REPORT.pdf.
157 Golden Key Awards Report 9 South African Human Rights Commission (2010).
158 Clutchco para 11.
159 S 34 (public bodies) and s 63 (private bodies) of the PAIA. The sections contain exceptions which provide mandatory protection of privacy of third
parties and which would prevent a body from granting access to the requested information.
160 S 35 of the PAIA.
161 S 36 (public bodies) and s 64 (private bodies) of the PAIA. These sections contain exceptions which provide mandatory protection of commercial
information of third parties and which would prevent a body from granting access to the requested information.
162 S 37 (public body) and s 65 (private body) of the PAIA.
163 S 38 (public body) and s 66 (private body) of the PAIA.
164 S 40 (public body) and s 67 (private body) of the PAIA.
165 S 42 of the PAIA.
166 S 46 (public body) and s 70 (private body) of the PAIA.
167 (CCT 03/11) [2011] ZACC 32; 2012 (2) BCLR 181 (CC); 2012 (2) SA 50 (CC) (29 November 2011).
168 M & G Media Ltd para 41.
169 M & G Media Ltd para 42.
170 M & G Media Ltd paras 44–7.
171 M & G Media Ltd para 124.
172 M & G Media Ltd para 125.
173 M & G Media Ltd para 128.
174 Currie and De Waal (2013) 711.
175 De Lange v Smuts NO and Others (CCT26/97) [1998] ZACC 6; 1998 (3) SA 785; 1998 (7) BCLR 779 (28 May 1998) paras 46–7.
176 (CCT23/99) [1999] ZACC 16; 2000 (1) SA 409; 1999 (12) BCLR 1420 (16 November 1999) paras 16–17.
177 Currie and De Waal (2013) 712.
178 National Director of Public Prosecutions v Zuma (573/08) [2009] ZASCA 1; 2009 (2) SA 277 (SCA); 2009 (1) SACR 361 (SCA); 2009 (4) BCLR 393
(SCA); [2009] 2 All SA 243 (SCA) (12 January 2009) para 18.
179 (CCT 109/12) [2012] ZACC 31; 2013 (2) BCLR 202 (CC) (18 December 2012).
180 Ramakatsa para 6.
181 Thint (Pty) Ltd v National Director of Public Prosecutions and Others, Zuma and Another v National Director of Public Prosecutions and Others (CCT
89/07, CCT 91/07) [2008] ZACC 13; 2008 (2) SACR 421 (CC); 2009 (1) SA 1 (CC); 2008 (12) BCLR 1197 (CC) (31 July 2008) paras 60–2; President
of the Republic of South Africa and Others v South African Rugby Football Union and Others - Judgment on recusal application (SARFU II) (CCT16/98)
[1999] ZACC 9; 1999 (4) SA 147; 1999 (7) BCLR 725 (4 June 1999) para 29.
182 Currie and De Waal (2013) 713.
183 (21990/2012) [2012] ZAWCHC 189; 2013 (4) SA 243 (WCC) (22 November 2012).
184 Mazibuko 256E–H.
185 S v Zuma and Others (CCT5/94) [1995] ZACC 1; 1995 (2) SA 642; 1995 (4) BCLR 401 (SA); 1995 (1) SACR 568; [1996] 2 CHRLD 244 (5 April 1995)
para 11; Executive Council of the Western Cape Legislature and Others v President of the Republic of South Africa and Others (CCT27/95) [1995] ZACC
8; 1995 (10) BCLR 1289; 1995 (4) SA 877 (22 September 1995) paras 15–17; Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and
Others (CCT5/95) [1995] ZACC 13; 1996 (1) SA 984 (CC); 1996 (1) BCLR 1 (6 December 1995) para 10; S v Mbatha, S v Prinsloo (CCT19/95,
CCT35/95) [1996] ZACC 1; 1996 (3) BCLR 293; 1996 (2) SA 464 (9 February 1996) para 29; Dormehl v Minister of Justice and Others (CCT10/00)
[2000] ZACC 4; 2000 (2) SA 825; 2000 (5) BCLR 471 (CC) (14 April 2000) para 4.
186 Besserglik v Minister of Trade Industry and Tourism and Others (Minister of Justice intervening) (CCT34/95) [1996] ZACC 8; 1996 (6) BCLR 745; 1996
(4) SA 331 (14 May 1996).
187 Van der Walt v Metcash Trading Limited (CCT37/01) [2002] ZACC 4; 2002 (4) SA 317; 2002 (5) BCLR 454 (11 April 2002) para 4.
188 (37904/2013) [2013] ZAGPPHC 292 (14 October 2013).
189 Nyathi v Member of the Executive Council for the Department of Health Gauteng and Another (CCT 19/07) [2008] ZACC 8; 2008 (5) SA 94 (CC); 2008
(9) BCLR 865 (CC) (2 June 2008) para 84.
190 Lesapo para 11; Bon Quelle (Edms) Bpk v Munisipaliteit van Otavi 1989 (1) SA 508 (A) 511H–512A; Nino Bonino v De Lange 1906 TS 120 at 122.
191 Lesapho para 18.
192 Magidiwana paras 27–8.
193 Magidiwana paras 27–8.
194 Magidiwana para 37.
195 Le Roux, R ‘Employment’ in Du Bois, F (ed) (2007) Wille’s Principles of South African Law 9th ed 924–5.
196 Act 66 of 1995.
197 Act 75 of 1997.
198 Act 55 of 1998.
199 Grogan, J (2009) Workplace Law 10th ed 6.
200 (CCT14/02) [2002] ZACC 30; 2003 (2) BCLR 182; 2003 (3) SA 513 (CC); [2003] 2 BLLR 103 (CC) (13 December 2002) para 13.
201 NUMSA para 13.
202 Cheadle, H ‘Labour relations’ in Cheadle, MH, Davis, DM and Haysom, NRL (2013) South African Constitutional Law: The Bill of Rights 2nd ed
18.4–18.10.
203 (CCT2/02) [2002] ZACC 27; 2003 (2) BCLR 154; 2003 (3) SA 1 (CC) (6 December 2002).
204 NEHAWU para 39.
205 (CCT27/98) [1999] ZACC 7; 1999 (4) SA 469; 1999 (6) BCLR 615 (26 May 1999).
206 Act 44 of 1957.
207 South African National Defence Union paras 23–4.
208 South African National Defence Union paras 26–7.
209 South African National Defence Union paras 24 and 28.
210 See, for example, R v Genereux (1992) 88 DLR (4th) 110 (SCC) 156–7 where a minority of the Canadian Supreme Court advanced this argument against
the inclusion of members of armed forces in the protection of labour rights.
211 South African National Defence Union v Minister of Defence para 29.
212 Cheadle (2013) 18.10.

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 213 Cheadle (2013) 18.10.
214 Cheadle (2013) 18.4–18.10. S 200A(1) of the LRA provides that
until the contrary is proved, a person who works for, or renders services to, any other person is presumed, regardless of the form of the contract,
to be an employee, if any one or more of the following factors are present:
(a) the manner in which the person works is subject to the control or direction of another person;
(b) the person’s hours of work are subject to the control or direction of another person;
(c) in the case of a person who works for an organisation, the person forms part of that organisation;
(d) the person has worked for that other person for an average of at least 40 hours per month over the last three months;
(e) the person is economically dependent on the other person for whom he or she works or renders services;
(f) the person is provided with tools of trade or work equipment by the other person; or
(g) the person only works for or renders services to one person.
Section 200A(2) goes on to provide that subsection (1) does not apply to any person who earns in excess of the amount determined by the Minister in
terms of section 6(3) of the BCEA.
215 2010 (4) SA 383 (LAC).
216 Kylie paras 16–22.
217 Kylie paras 25–7.
218 Kylie paras 32–7.
219 Kylie paras 40–6.
220 Kylie paras 52–3.
221 (CCT31/01) [2002] ZACC 22; 2002 (6) SA 642; 2002 (11) BCLR 1117 (9 October 2002).
222 Jordan para 16.
223 South Africa Commission of Inquiry into Labour Legislation Wiehahn, NE (1980) Report of the Commission of Inquiry into Labour Legislation Republic
of South Africa, Department of Manpower Utilisation.
224 Act 28 of 1956.
225 S 1 of the 1956 LRA.
226 S 1 of the 1956 LRA.
227 Van Niekerk, A (2012) Law@Work 2nd ed 39.
228 Van Niekerk, A (2012) Law@Work 2nd ed 39.
229 S 186(1) of the LRA provides that
[d]ismissal means that –
(a) an employer has terminated a contract of employment with or without notice;
(b) an employee reasonably expected the employer to renew a fixed term contract of employment on the same or similar terms but the employer
offered to renew it on less favourable terms, or did not renew it;
(c) an employer refused to allow an employee to resume work after she –
(i) took maternity leave in terms of any law, collective agreement or her contract of employment;
(d) an employer who dismissed a number of employees for the same or similar reasons has offered to re-employ one or more of them but has
refused to re-employ another; or
(e) an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for
the employee; or
(f) an employee terminated a contract of employment with or without notice because the new employer, after a transfer in terms of section 197
or section 197A, provided the employee with conditions or circumstances at work that are substantially less favourable to the employee than
those provided by the old employer.
230 S 188(1) of the LRA.
231 Items 8 and 9 of the Code of Good Practice: Dismissals.
232 Items 10 and 11 of the Code of Good Practice: Dismissals.
233 Items 10 and 11 of the Code of Good Practice: Dismissals.
234 GN 1517 in Government Gazette 20254 of 16 July 1999.
235 S 188(1)(b) of the LRA.
236 Du Toit, D et al (2006) Labour Relations Law: A Comprehensive Guide 5th ed 403–6.
237 NEHAWU para 35.
238 NEHAWU para 38.
239 NEHAWU para 40.
240 (CCT 85/06) [2007] ZACC 22; [2007] 12 BLLR 1097 (CC); 2008 (2) SA 24 (CC); (2007) 28 ILJ 2405 (CC); 2008 (2) BCLR 158 (CC) (5 October 2007).
241 Sidumo para 74.
242 Sidumo paras 38 and 65.
243 South African National Defence Union para 32.
244 South African National Defence Union para 33.
245 South African National Defence Union para 35.
246 South African National Defence Union para 36.
247 South African National Defence Union para 36.
248 South African Government News Agency (2009, August) Address by Defence and Military Veterans Minister, Lindiwe Sisulu, on the Illegal March by
SANDF Members to the Union Buildings available at http://www.sanews.gov.sa/south-africa/address-defence-and-military-veterans-minister-lindiwe
-sisulu-illegal-march-sandu.
249 S 213 of the LRA.
250 S 5 of the LRA provides that:
(1) No person may discriminate against an employee for exercising any right conferred by this Act.
(2) Without limiting the general protection conferred by subsection (1), no person may do, or threaten to do, any of the following –
(a) require an employee or a person seeking employment –
(i) not to be a member of a trade union or workplace forum;
(ii) not to become a member of a trade union or workplace forum; or
(iii) to give up membership of a trade union or workplace forum;
(b) prevent an employee or a person seeking employment from exercising any right conferred by this Act or from participating in any
proceedings in terms of this Act; or
(c) prejudice an employee or a person seeking employment because of past, present or anticipated –
(i) membership of a trade union or workplace forum;

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 (ii) participation in forming a trade union or federation of trade unions or establishing a workplace forum;
(iii) participation in the lawful activities of a trade union, federation of trade unions or workplace forum;
(iv) failure or refusal to do something that an employer may not lawfully permit or require an employee to do;
(v) disclosure of information that the employee is lawfully entitled or required to give to another person;
(vi) xercise of any right conferred by this Act; or
(vii) participation in any proceedings in terms of this Act.
(3) No person may advantage, or promise to advantage, an employee or a person seeking employment in exchange for that person not exercising
any right conferred by this Act or not participating in any proceedings in terms of this Act. However, nothing in this section precludes the
parties to a dispute from concluding an agreement to settle that dispute.
(4) A provision in any contract, whether entered into before or after the commencement of this Act, that directly or indirectly contradicts or
limits any provision of section 4, or this section, is invalid, unless the contractual provision is permitted by this Act.
251 S 7 of the LRA provides that:
7. (1) No person may discriminate against an employer for exercising any right conferred by this Act.
(2) Without limiting the general protection conferred by subsection (1), no person may do, or threaten to do, any of the following –
(a) require an employer –
(i) not to be a member of an employers’ organisation;
(ii) not to become a member of an employers’ organisation; or
(iii) to give up membership of an employers’ organisation;
(b) prevent an employer from exercising any right conferred by this Act or from participating in any proceedings in terms of this
Act; or
(c) prejudice an employer because of past, present or anticipated –
(i) membership of an employers’ organisation;
(ii) participation in forming an employers’ organisation or a federation of employers’ organisations;
(iii) participation in the lawful activities of an employers’ organisation or a federation of employers’ organisations;
(iv) disclosure of information that the employer is lawfully entitled or required to give to another person;
(v) exercise of any right conferred by this Act; or
(vi) participation in any proceedings in terms of this Act.
(3) No person may advantage, or promise to advantage, an employer in exchange for that employer not exercising any right conferred by
this Act or not participating in any proceedings in terms of this Act. However, nothing in this section precludes the parties to a dispute
from concluding an agreement to settle that dispute.
(4) A provision in any contract, whether entered into before or after the commencement of this Act, that directly or indirectly contradicts
or limits any provision of section 6, or this section, is invalid, unless the contractual provision is permitted by this Act.
252 S 26(1) of the LRA. S 26 contains a number of safeguards aimed at promoting its constitutional validity.
253 S 25(1) of the LRA. Like s 26, s 25 also contains a number of safeguards aimed at promoting its constitutional validity.
254 Du Toit (2006) 191.
255 Van Niekerk (2012) 349.
256 Currie and De Waal (2013) 486.
257 S 12 of the LRA.
258 S 13 of the LRA.
259 S 14 of the LRA.
260 S 15 of the LRA.
261 S 16 of the LRA.
262 NUMSA paras 34–5.
263 NUMSA para 13.
264 S 64(1)(d) of the LRA.
265 (CCT128/11) [2012] ZACC 19; 2012 (6) SA 249 (CC); 2012 (11) BCLR 1177 (CC); [2012] 12 BLLR 1193 (CC); (2012) 33 ILJ 2549 (CC)
(21 September 2012).
266 SATAWU paras 10–11.
267 SATAWU para 54.
268 SATAWU para 53.
269 SATAWU para 86.
270 SATAWU para 92.
271 SATAWU para 17.
272 SATAWU para 27.
273 SATAWU para 34.
274 See De Vos, P (2012, 25 September) Sharp divisions on the Constitutional Court about the right to strike Constitutionally Speaking available at http:/
/constitutionallyspeaking.co.za/sharp-divisions-on-the-constitutional-court-about-the-right-to-strike/.
275 Grogan (2009) 343.
276 S 29 of the LRA.
277 Van Niekerk (2012) 370.
278 Ministerial Legal Task Team (1995, January) Explanatory Memorandum Industrial Law Journal 16(2):278–336 at 292.
279 Ministerial Legal Task Team (1995) 292.
280 Van Niekerk (2012) 371.
281 S 28 of the LRA.
282 S 31 of the LRA.
283 S 32 of the LRA.
284 S 32 of the LRA.
285 Cheadle (2013) 18.23–18.24.
286 Cheadle (2013) 18.24–18.25.
287 (CCT23/96) [1996] ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC) (6 September 1996) paras 64–6.
288 First Certification paras 64–6.
289 First Certification paras 64–6.
290 Cheadle (2013) 18.23.
291 Cheadle (2013) 18.26.
292 Cheadle (2013) 18.26.

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 293 2007 (1) SA 402 (SCA).
294 South African National Defence Union v Minister of Defence (II) (CCT65/06) [2007] ZACC 10; 2007 (5) SA 400; 2007 (8) BCLR 863 (CC); [2007] 9
BLLR 785 (CC); (2007) 28 ILJ 1909 (CC) (30 May 2007) para 48.
295 South African National Defence Union (II) para 55.
296 South African National Defence Union v Minister of Defence (I) CCT27/98) [1999] ZACC 7; 1999 (4) SA 469; 1999 (6) BCLR 615 (26 May 1999).
297 South African National Defence Union v Minister of Defence and Others (SCA) para 5.
298 South African National Defence Union (SCA) para 6.
299 South African National Defence Union (SCA) paras 7–11.
300 South African National Defence Union (SCA) paras 14–19.
301 South African National Defence Union (SCA) para 25.
302 South African National Defence Union (II) para 51.
303 South African National Defence Union (II) para 52.
304 South African National Defence Union (II) para 56.
305 South African National Defence Union (II) para 55.

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 Socio-economic rights
All rights reserved. May not be reproduced in any form without permission from the publisher, except fair uses permitted under U.S. or applicable copyright law.

16.1 Introduction
16.2 Socio-economic rights in the Constitution and related constitutional provisions
16.3 Socio-economic rights and other areas of the law
16.4 The interpretation of socio-economic rights
16.4.1 Introduction
16.4.2 Duties: section 7(2)
16.4.2.1 The duty to respect, protect, promote and fulfil
16.4.2.1.1 Introduction
16.4.2.1.2 The duty to respect
16.4.2.1.3 The duty to protect
16.4.2.1.4 The duty to promote
16.4.2.1.5 The duty to fulfil
16.4.2.2 Negative and positive duties
16.4.3 The role of international and foreign law: section 39(1)
16.5 Socio-economic rights and the legislature and executive
16.5.1 Introduction
16.5.2 Translation through legislation
16.5.3 Translation through executive and administrative action
16.6 Socio-economic rights and the courts
16.6.1 Introduction
16.6.2 Modes of adjudication: sections 8 and 39(2)
16.6.3 Constraint in the adjudication of socio-economic rights claims
16.6.3.1 Separation of powers concerns
16.6.3.2 The Constitutional Court’s approach to separation of powers concerns
16.6.3.3 Factors influencing separation of powers concerns
16.6.3.3.1 Introduction
16.6.3.3.2 Where the legislature, executive or state administration has defined
Copyright 2014. Oxford University Press Southern Africa.

the legal duties, courts are more likely to intervene

16.6.3.3.3 Negative rather than positive duties
16.7 Different forms of judicial enforcement of socio-economic rights
16.7.1 The duty to respect
16.7.1.1 Introduction
16.7.1.2 The duty to refrain from interfering with people’s existing enjoyment of
socio-economic rights
16.7.1.3 The duty to mitigate interferences with people’s existing enjoyment of
socio-economic rights when such interferences are unavoidable
16.7.1.4 The duty to refrain from impairing people’s access to socio-economic rights
16.7.2 The duty to protect
16.7.2.1 Introduction

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AN: 948967 ; Brand, Danie, Freedman, Warren, De Vos, Pierre.; South African Constitutional Law in Context
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 16.7.2.2 Legislative and executive measures
16.7.2.3 Judicial measures
16.7.3 The duty to promote and fulfil
16.7.3.1 Introduction
16.7.3.2 Reasonableness review
16.7.3.2.1 Introduction
16.7.3.2.2 A means-end effectiveness test
16.7.3.3 The elements of reasonableness review
16.7.3.3.1 Introduction
16.7.3.3.2 The state must have a plan
16.7.3.3.3 The plan must be reasonable
16.7.3.3.4 The state must continually review its plan
16.7.3.4 Meaningful engagement
16.7.3.5 Within available resources
16.8 Remedies in socio-economic rights cases
Summary

16.1 Introduction
As the Constitutional Court has pointed out, South Africa is a society in which there are great disparities in wealth:

Millions of people are living in deplorable conditions and in great poverty. There is a high level of
unemployment, inadequate social security, and many do not have access to clean water or to adequate
health services. These conditions already existed when the Constitution was adopted and a
commitment to address them, and to transform our society into one in which there will be human
dignity, freedom and equality, lies at the heart of our new constitutional order. For as long as these
conditions continue to exist that aspiration will have a hollow ring.1

The constitutional commitment to address these conditions is partly reflected in various provisions of the Bill of Rights, including
several provisions that guarantee the social and economic rights of all. The inclusion of so-called ‘socio-economic rights’ in the
Bill of Rights is one of the great innovations found in South Africa’s 1996 Constitution. Socio-economic rights are rights to the
conditions and resources necessary for the material well-being of people. In other words, socio-economic rights are rights to
things such as food, water, housing, health care, social assistance, education and a safe, clean and healthy environment. As we
pointed out in chapter 1, the inclusion of socio-economic rights in the Constitution provides evidence of the fact that it is a
transformative Constitution that engages with the social and economic realities in South Africa.
In this chapter, we survey the legal nature and practical implications of the socio-economic rights in South Africa’s
Constitution. We describe the rights in the abstract and then investigate the different ways in which they operate as legal
entitlements imposing concomitant legal duties on the state and others.

PAUSE FOR REFLECTION

South Africa’s Constitution unique with regard to socio-economic rights

It is not simply the fact that socio-economic rights have been included in the South African Constitution that
is significant. Many constitutions across the world include at least some of these rights although South
Africa’s Constitution boasts a longer list of socio-economic rights than most others. Rather, it is the manner
in which socio-economic rights are protected in South Africa’s Constitution that sets it apart from other
comparable documents.
This is true in two ways. First, the socio-economic rights in the South African Constitution are
formulated so that they do not only require the state to leave people alone in their access to basic
resources such as food, water, housing, education and health care (in other words, the Constitution does
not only impose a negative obligation to respect these rights). They also require the state to act – to expend
resources and to make and implement plans – to ensure that people indeed have access to those

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 resources (in other words, the Constitution imposes positive obligations on the state to realise these rights).
In most other constitutions that include socio-economic rights this is not the case. Generally, these rights
are formulated in such a way that they only protect access to resources such as education or housing
against unjustified state interference.
Second, the socio-economic rights in South Africa’s Constitution are justiciable. In other words, claims
may be brought to courts on their basis. Courts have the power authoritatively to interpret these rights, to
determine the nature and extent of the duties they impose and to decide whether or not these duties have
been complied with. Courts may also impose remedies to ensure that these rights are vindicated. Again, in
most other constitutions that include socio-economic rights, this is not the case. Often, for example,
socio-economic rights are included in constitutions as so-called directive principles only. This means they
are included as goals for the state to pursue without having any legally binding nature.

16.2 Socio-economic rights in the Constitution and related constitutional

provisions
Socio-economic rights are found in a variety of provisions of the Constitution:
• Section 24 guarantees everyone’s right to a safe and healthy environment and requires the state to protect the environment.
• Section 25(5) requires the state to enable citizens to gain equitable access to land.
• Section 26 provides that everyone has the right to have access to adequate housing and prohibits arbitrary evictions.
• Section 27 guarantees everyone’s right to have access to health care services, sufficient food and water, and social security
and assistance, and prohibits the refusal of emergency medical treatment.
• Section 28(1)(c) entrenches children’s rights to shelter and to basic nutrition, social services and health care services.
• Section 29 provides for everyone’s right to basic education and to further education.
• Finally, section 35(2)(e) guarantees the right of detained persons to be provided with adequate nutrition, accommodation,
medical care and reading material.

We can distinguish between three different groups of socio-economic rights.

First, some rights follow a standard formulation, stating that everyone has the right of ‘access to’ these rights, but
circumscribing the positive duties they impose on the state. These rights are circumscribed, first, in that they only provide the
right of having ‘access’ to a particular social good. Second, the positive duties they impose on the state are described as duties to
take reasonable steps, within available resources, to achieve their progressive realisation. Standard examples are the section 26(1)
right to ‘have access to adequate housing’ and the section 27(1) right to ‘have access to’ health care services, including
reproductive health care, sufficient food and water, and social security and assistance. The positive duties imposed by these rights
are explicitly described in sections 26(2) and 27(2) respectively, but in a manner that limits them, so that the state is required to
take only ‘reasonable legislative and other measures, within its available resources, to achieve … [their] progressive realisation
…’
Other qualified socio-economic rights are those in section 24(b) which provides that ‘[e]veryone has the right to have the
environment protected … through reasonable legislative and other measures’; section 25(5) which provides that ‘[t]he state
must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens
to gain access to land on an equitable basis’; and section 29(1)(b) which provides that ‘[e]veryone has the right to further
education, which the state, through reasonable measures, must make progressively available and accessible’ (our emphasis).
A second group of rights are neither formulated as access rights nor subjected to the qualifications of ‘reasonableness’,
‘available resources’ or ‘progressive realisation’. These are the section 29(1)(a) right of everyone to ‘basic education, including
adult basic education’; the section 28(1)(c) rights of children to ‘basic nutrition, shelter, basic health care services and social
services’; and the section 35(2)(e) rights of detained persons to ‘the provision, at state expense, of adequate accommodation,
nutrition, reading material and medical treatment’.
Third, sections 26(3) and 27(3) describe particular elements of the section 26(1) right to have access to adequate housing and
the section 27(1)(a) right to have access to health care services respectively. These provisions can be viewed as specific,
explicitly guaranteed manifestations of the negative obligations imposed by one of the rights contained in that section. In other
words, these rights are formulated as prohibitions of certain forms of conduct rather than as rights to particular goods and
services. Section 26(3) prohibits arbitrary evictions and section 27(3) prohibits the refusal of emergency medical treatment. These
two rights are also not subjected to any of the special qualifications that are typically attached to the qualified socio-economic
rights.

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 16.3 Socio-economic rights and other areas of the law
In addition to the socio-economic rights themselves, it is important to take note of those rights that are not explicitly formulated
as rights to material conditions for human welfare, but that can be interpreted to create entitlements to such goods and services.
Obvious examples are the section 11 right to life, the section 9 right to equality and the section 33 right to administrative justice.
The right to life, for example, can be interpreted as not only requiring the state to refrain from killing, but also requiring it
positively to protect and sustain life and to foster and maintain a certain quality of life. 2 Somewhat similarly, the right to equality
can be used to ground claims that a particular socio-economic benefit provided to a specific class of needy people should be
extended to others.3 In addition, the section 9(3) and 9(4) prohibition on unfair discrimination is relevant to poverty-related legal
claims in the sense that socio-economic status could be recognised as a ground for distinction analogous to the grounds explicitly
listed in section 9(3). This would render distinctions made on the basis of socio-economic status actionable as unfair
discrimination.4

PAUSE FOR REFLECTION

A claim to the right to medical treatment must be based on section 27 of the

Constitution
In Soobramoney v Minister of Health (Kwazulu-Natal),5 the applicant was suffering from chronic renal
failure. Although renal dialysis would have prolonged his life, Addington State Hospital refused to place him
on its renal dialysis programme. This was because the Hospital’s guidelines provided that a person who
was suffering from chronic renal failure would only be placed on the dialysis programme if he or she was
eligible for a kidney transplant. Its transplant policy provided, in turn, however, that a person would only be
eligible for a transplant if he or she was ‘free from any significant vascular or cardiac disease’. 6
Unfortunately, Mr Soobramoney suffered from ischaemic heart disease and was not eligible for a
transplant. This meant that he was also not eligible for dialysis.
Mr Soobramoney then applied for an order setting aside the Hospital’s decision. He based his
application, inter alia, on the grounds that the Hospital’s decision infringed his right to life guaranteed in
section 11 of the Constitution. The Constitutional Court, however, rejected this argument on the grounds
that, unlike in other countries where the right of access to health care services is not expressly guaranteed
in the constitution, the right to medical treatment does not have to be inferred from the right to life. This is
because the right to medical treatment is expressly guaranteed in section 27 of the Constitution. A person
who wishes to claim the right to medical treatment, therefore, must base his or her case on section 27 of
the Constitution and not on section 11.7

The administrative justice rights in section 33 of the Constitution are also relevant. Most state decisions affecting access to health
care, housing, education, social services, food and water qualify as administrative action and must comply with the standards of
procedural fairness, lawfulness and reasonableness. Administrative law grounds of review are potent tools for the protection of
socio-economic rights. Courts are comfortable with applying these grounds of review and, particularly in the field of social
assistance, a large body of socio-economic rights case law based on administrative law principles has developed. 8

PAUSE FOR REFLECTION

Using non-rights related constitutional provisions to protect and advance

socio-economic rights
Socio-economic rights are not only indirectly protected through other constitutional rights. Litigants can use
any number of non-rights related constitutional provisions, which seemingly have nothing whatsoever to do
with socio-economic rights, to protect and advance socio-economic rights.

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 In Joseph and Others v City of Johannesburg and Others,9 for example, the Constitutional Court held
that sections 152 and 153 of the Constitution, which set out the objectives of local government, read
together with sections 4(2)(f) and 73 of the Local Government: Municipal Systems Act 10 impose an
obligation on every municipality to provide basic municipal services to their inhabitants irrespective of
whether they have a contractual relationship with the municipality or not.11
Although, in contrast to water, electricity is not expressly referred to in the Constitution, the Court held
further, there is no doubt that electricity is one of the most common and important basic municipal services,
especially in urban areas. Municipalities are, therefore, required to provide electricity to their inhabitants as
a part of their constitutional duty to provide basic municipal services.12

16.4 The interpretation of socio-economic rights

16.4.1 Introduction
The interpretation of socio-economic rights is conditioned by two generally applicable provisions of the Constitution: section 7(2)
and section 39(1). It is important to understand how these provisions influence the interpretation of the social and economic
rights.

16.4.2 Duties: section 7(2)

16.4.2.1 The duty to respect, protect, promote and fulfil

16.4.2.1.1 Introduction
Section 7(2) of the Constitution determines that ‘[t]he state must respect, protect, promote and fulfil the rights in the Bill of
Rights’. Section 7(2) is central to the transformative ethos of the Constitution. It explicitly conveys the idea that the state is not
simply required to refrain from interfering with the enjoyment of rights, but must also act so as to protect, enhance and realise the
enjoyment of rights.13 For practical purposes, this provision is important as it indicates the scope and nature of the duties and
entitlements that socio-economic rights can create and so shows when and how they can be used to advance legal claims.
However, it is important to note that section 7(2) does not only apply to the duties imposed by social and economic rights; it also
applies to all rights contained in the Bill of Rights. Although we discuss section 7(2) in this part of the book because it applies so
directly and extensively to the duties imposed by social and economic rights, we must never lose sight of its application to every
other right contained in the Bill of Rights.

16.4.2.1.2 The duty to respect

The duty to respect requires the state to refrain from interfering with the enjoyment of rights. First, the state must not limit or take
away people’s existing access to housing, for instance, without good reason and without following proper legal procedure.
Second, where the limitation or deprivation of existing access to housing is unavoidable, the state must take steps to mitigate that
interference. In the context of state eviction, for example, the state must take steps to find alternative accommodation for the
evictees. Third, the state must not place undue obstacles in the way of people gaining access to housing. 14

16.4.2.1.3 The duty to protect

The duty to protect requires the state to protect against third party interference the existing enjoyment of rights as well as the
capacity of people to enhance their enjoyment of rights or to gain access to the enjoyment of rights. The state must, for instance,
regulate private health care provision to protect against exploitation by private institutions and must, through such regulation,
provide effective legal remedies where such exploitation or other forms of interference occur. An aspect of this duty that is often
overlooked is the duty that it places on the courts, through their powers of developing the common law and interpreting
legislation, to strengthen existing remedies or develop new remedies for protection against private interference in the enjoyment
of rights.15

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 16.4.2.1.4 The duty to promote

The duty to promote is difficult to distinguish from the broader duty to fulfil rights. 16 Liebenberg describes the duty to promote
as a duty to raise awareness of rights, that is, through educational programmes, to bring rights and the methods of accessing and
enforcing them to the attention of rights holders and to promote the most effective use of existing access to rights. 17 Budlender
describes the duty to promote as a duty placed on administrative bodies to use the promotion of socio-economic rights as a
primary consideration in their discretionary decision making, much like the constitutional injunction contained in section 28(2)
which requires that the best interest of the child be the primary consideration in any decision affecting a child. 18 The duty to
promote can also be understood as placing a duty on the state to assist in creating the conditions in which individuals can realise
their rights. In other words, it places a duty on the state to use its power to assist individuals in realising their rights. 19

16.4.2.1.5 The duty to fulfil

The duty to fulfil requires the state to act and to ‘adopt appropriate legislative, administrative, budgetary, judicial, promotional
and other measures’ 20 so that those people who do not currently enjoy access to rights can gain access and so that the existing
enjoyment of rights is enhanced. What is required is for the state to take direct steps to fulfil the enjoyment of rights for
individuals. For example, the duty to fulfil may require the state to build houses to help meet the needs of individuals without
access to housing.

16.4.2.2 Negative and positive duties

On the basis of section 7(2), a distinction is often made between positive duties (duties to do something, to act) and negative
duties (duties to refrain from doing something, not to act). The duty to respect is then classified as a negative duty, whereas the
duties to protect, promote and fulfil are described as positive duties.21 This distinction is presented in hierarchical fashion. The
negative duty to respect is often seen as more amenable to enforcement through adjudication than the positive duties to protect,
promote and fulfil.22 The argument is that enforcement of a negative duty does not require courts to interfere in allocational
choices of the executive or legislature as the enforcement of positive duties inevitably seems to do. By the same token, it is
argued that the enforcement of a negative duty does not immerse courts in the field of policy formulation and evaluation to the
extent that the enforcement of positive duties supposedly does. However, in reality, the distinction between positive and negative
duties contains little more than a simple semantic distinction between acting and not acting.
First, the same conduct of the state can often be described both as an infringement of the positive duty to fulfil a right and as
an infringement of the negative duty to respect the right. As Liebenberg points out, in Minister of Health and Others v Treatment
Action Campaign and Others (No 2),23 it was not clear whether the refusal to extend the provision of Nevirapine for purposes of
preventing mother-to-child transmission of HIV to all public health facilities, apart from a few select pilot sites, constituted a
negative interference of the right to have access to health care services or a failure of the state positively to provide an essential
health service. In effect, it could be characterised as both. 24 Similarly, an element of the supposedly negative duty to respect
rights – the duty to mitigate interference in the exercise of a right where such interference is unavoidable – clearly requires the
state to act rather than to refrain from acting.
Second, the distinction in consequence also does not hold up. Enforcement of a negative duty against the state is as likely to
have consequences for expenditure of resources as enforcement of a positive duty. Enforcement of a negative duty also
potentially requires a court to interfere as deeply in the policy-making powers of the executive or legislature as does enforcement
of a negative duty. Suppose the state seeks to evict a group of illegal occupants from state land with the purpose of developing
that land for low-cost housing. The housing will be occupied by a different group of people who are next in line on the housing
waiting list. For a court to prevent the state from doing so (to enforce the negative duty to respect the right to have access to
adequate housing) will have important resource consequences. The state will have to find other suitable land and buy it, or use
other state land, which itself in turn might have been allocated for a different use. Equally, in enforcing the negative duty in this
respect, a court would interfere very directly in a complex, multifaceted policy choice about how to decide who gets access to
housing first, about where to situate low-cost housing development and so on. 25
Nevertheless, despite its porosity, the distinction between positive and negative duties remains important for strategic
reasons. As will become clear below, courts are likely to subject negative interferences with socio-economic rights to more robust
scrutiny than failures to meet positive duties. This is because the structure of the Constitution seems to demand it and because
courts regard themselves as bound by separation of powers concerns to a lesser extent when dealing with negative interferences.

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 CRITICAL THINKING

Section 7(2) applies equally to all rights

Recall that section 7(2) applies equally to all rights, not only social and economic rights. This means that
potentially all rights – including all so-called civil and political rights – place both a negative as well as a
positive obligation on the state.
The Constitutional Court has recognised in several judgments that section 7(2) places both a negative
and a positive obligation on a range of civil and political rights. For example, in August and Another v
Electoral Commission and Others, the Court recognised the positive duties imposed by the right to vote
contained in section 19 of the Constitution, stating that:

The right to vote by its very nature imposes positive obligations upon the legislature and the
executive. A date for elections has to be promulgated, the secrecy of the ballot secured and the
machinery established for managing the process. For this purpose the Constitution provides for
the establishment of the Commission to manage elections and ensure that they are free and fair
… [T]he Electoral Commission Act … therefore provides that it is one of the functions of the
Commission to ‘… compile and maintain voters’ rolls by means of a system of registering of
eligible voters by utilising data available from government sources and information furnished by
voters.’ This clearly imposes an affirmative obligation on the Commission to take reasonable
steps to ensure that eligible voters are registered.26

We could similarly think of other civil and political rights which clearly impose positive obligations on the
state to ensure their realisation. For example, the right to assemble, demonstrate and picket guaranteed in
section 17 of the Constitution may require the police to accompany a protest march to protect marchers
from attack, to ensure the keeping of the peace and to regulate traffic flow. These examples show that it
would be wrong to associate negative duties with the realisation of civil and political rights and positive
duties with the realisation of social and economic rights.

16.4.3 The role of international and foreign law: section 39(1)

Section 39(1) of the Constitution provides that:

[w]hen interpreting the Bill of Rights, a court, tribunal or forum:

( a) must promote the values that underlie an open and democratic society based on human dignity,
equality and freedom;
( b) must consider international law; and
(c) may consider foreign law.

Socio-economic rights are protected as justiciable rights in a large number of national constitutions across the world. 27 However,
apart from a few isolated exceptions,28 they have seldom directly formed the basis of constitutional litigation in these
jurisdictions and there remains an absence of domestic case law in this respect. The largest bodies of case law have developed in
jurisdictions where socio-economic rights are indirectly recognised through the extended interpretation of other rights or the
application of broader constitutional norms. For example, in India, courts have used the so-called ‘directive principles of state
policy’ to read basic socio-economic entitlements into civil and political rights such as the right to life. 29 The German
Constitutional Court has used the constitutional ‘social state’ principle to insulate state conduct intended to protect access to basic
socio-economic resources against challenges on the basis of, for instance, freedom of competition. 30 In other jurisdictions, the
right to equality and constitutional due process guarantees have been used to protect or establish entitlements to basic
socio-economic resources.31
In the absence of foreign jurisprudence on socio-economic rights, the focus in South Africa has been on international human
rights law. The work of a variety of human rights treaty monitoring or enforcement bodies, in particular, has been influential in
shaping both the socio-economic rights provisions of the Constitution 32 and the jurisprudence that has developed around them
since their enactment.33 The primary United Nations (UN) human rights instrument in this respect is the International Covenant
on Economic, Social and Cultural Rights of 1996 (ICESCR), which South Africa has signed and at the time of writing was poised
to ratify. In various respects, the socio-economic rights provisions of the Constitution are modelled on the ICESCR and it is
consequently particularly important as an interpretative source.

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 The international body that supervises compliance with the ICESCR is the Committee on Economic, Social and Cultural
Rights (Committee on ESCR). This Committee receives regular reports from state parties on the realisation of socio-economic
rights in the respective countries. In practice, non-governmental organisations (NGOs) also submit ‘shadow’ reports which the
Committee on ESCR considers alongside those of the states when the performance of the state in question is evaluated. The
Committee on ESCR also issues General Comments on the ICESCR which are highly influential in the interpretation of
socio-economic rights in general.34
Other international instruments with strong socio-economic rights dimensions are the Universal Declaration of Human Rights
(1948) (Universal Declaration),35 the Convention on the Elimination of All Forms of Discrimination against Women (1979) 36
and the Convention on the Rights of the Child (1989). 37 South Africa is a state party to the latter two Conventions.
The applicable regional instrument for South Africa is the African Charter on Human and Peoples’ Rights (African Charter),
to which South Africa is a state party. The African Charter contains civil, political and socio-economic rights which are enforced
by the African Court on Human Rights. The African Commission on Human and People’s Rights, the predecessor of the African
Court on Human Rights, decided few cases in which socio-economic rights played a role. 38
Other regional instruments that deal with economic and social rights are the European Social Charter (1961) and the
Additional Protocol to the American Convention on Human Rights in the area of Economic, Social and Cultural Rights (Protocol
of San Salvador) (1988).
On a less formal level, bodies of experts have formulated guidelines that inform the interpretation of socio-economic rights,
such as the Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights of
1986,39 the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights of 1997 40 and the Bangalore
Declaration and Plan of Action of 1995.41
As is the case with section 7(2), remember that section 39(1) applies to all the rights guaranteed in the Bill of Rights. South
African courts must therefore take into account international law and may take into account foreign case law when they are called
on to interpret the wide range of civil, political, social and economic rights. We discuss section 39(1) here because the scarcity of
precedent-setting case law in the field of social and economic rights across the world renders the application of international law
of particular importance in the interpretation of social and economic rights.

PAUSE FOR REFLECTION

Socio-economic rights jurisprudence impoverished by the scarcity of case law from

other domestic jurisdictions
Despite the valuable guidance that international law provides for the interpretation of the socio-economic
rights in the Constitution, the continued absence of directly relevant case law from other domestic
jurisdictions arguably impoverishes the development of social and economic rights jurisprudence in South
Africa. However, the contribution of international human rights law to the process of gaining recognition for
these rights and initiating the development of a viable jurisprudence around them has nevertheless been
significant.
The most important of the international socio-economic rights documents, the ICESCR, only recently
acquired an individual complaints mechanism through which citizens can lay individual complaints against
states for violation of the provisions of the ICESCR.42 No matters have as yet been dealt with through this
mechanism. As a result, the available interpretations that the Committee on ESCR has given to the
provisions of ICESCR in its General Comments have not been developed in the context of concrete
disputes or complaints, and often take the form of general guidelines.43
In addition, up to now there has been no effective method for the actual enforcement of the norms
developed by the Committee on ESCR in its General Comments. This has meant that little attention has
been devoted in international law to the difficult issues of separation of powers and institutional capacity
that arise at domestic level in the enforcement of court orders with respect to socio-economic rights.44
Both these difficulties dilute the usefulness of international norms as interpretative sources for
socio-economic rights at domestic level, particularly as the South African socio-economic rights
jurisprudence develops and becomes more concrete and specific.

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 16.5 Socio-economic rights and the legislature and executive

16.5.1 Introduction
As is the case with all constitutional rights, the translation of constitutional socio-economic rights from ‘background moral
claims’ 45 into enforceable legal rights occurs through a variety of ‘law-making processes and institutions’. 46 Not only the
courts, but at least also the legislature, the executive and the administration, play important roles in this respect to ensure the
realisation of these rights.47 Underlying this discussion is the assumption that social and economic rights – like all other rights –
engender specific obligations that the various branches of the state must fulfil. Bilchitz has criticised the Constitutional Court for
failing to engage adequately with the need to establish the content of the various social and economic rights and to clarify what
the specific obligations are that the various branches of the state need to fulfil. According to Bilchitz, there is a need for the Court
to determine what the exact services are to which an individual is entitled when relying on social and economic rights. It is only
when these obligations are spelt out that it becomes possible to say with certainty what the obligations are that these rights place
on the state.48 The role that each of these institutions plays in this process is set out below.

PAUSE FOR REFLECTION

The role of the South African Human Rights Commission in the translation of
socio-economic rights into enforceable legal rights
Apart from the legislature, the executive and the administration, the South African Human Rights
Commission (SAHRC), discussed in chapter 7, also has an important role to play in translating
socio-economic rights from background moral claims into enforceable legal rights. In terms of
section 184(3) of the Constitution, the SAHRC has a special mandate to monitor the realisation of
socio-economic rights. The SAHRC has developed this mandate into a reporting process in terms of which
organs of state report to it annually about the steps they have taken to realise socio-economic rights. The
SAHRC then drafts a report evaluating the socio-economic rights performance of the state which is tabled
in Parliament. This could be referred to as a mechanism for the ‘soft protection’ of socio-economic rights,
emphasising the programmatic involvement of all sectors in government in the implementation of
socio-economic rights. The SAHRC is also empowered to receive and deal with complaints of the
infringement of socio-economic rights in an extrajudicial fashion.49

16.5.2 Translation through legislation

Socio-economic rights in South Africa are not only entrenched in the Constitution. They are also extensively protected as
statutory entitlements in national legislation. The Constitution is replete with commands directed at the legislature to enact
legislation to give effect to specific constitutional rights. Examples are found in section 9 in relation to the prohibition on unfair
discrimination; in section 32 in relation to the right of access to information; and in section 33 in relation to the right to
administrative justice. Along similar lines, several of the socio-economic rights explicitly require statutory measures to be enacted
to give effect to them. So, for instance, sections 26(2) and 27(2) require that the state take ‘reasonable legislative … measures’,
among other things, to realise the right to have access to adequate housing and the rights to have access to health care services,
food, water and social security and assistance, respectively.50 The legislature has reacted to these constitutional commands by
enacting a wide range of statutes aimed at facilitating, providing and protecting access to basic resources. 51
The statutory measures envisaged here include legislation that creates and empowers structures and institutions and sets in
place processes for the implementation of socio-economic rights.52 However, an important aspect of such legislation is the
creation of statutory socio-economic rights. These statutory socio-economic rights can take the traditional form of subjective legal
entitlements of particular persons to particular things or services. Examples are statutory entitlements to receive defined social
assistance benefits if an individual meets certain eligibility conditions that can be enforced against the state 53 and entitlements to
tenure on land exercised through legal protection against eviction that can be enforced against other private persons. 54
Importantly, these statutory socio-economic rights also include rights or entitlements of a less traditional nature. Given

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 particularly the liberalised law of standing that applies in Bill of Rights-related litigation in South Africa pursuant to section 38 of
the Constitution, it is possible for individuals either on their own behalf, on behalf of a group or class of persons, or in the public
interest 55 to enforce broadly phrased statutory duties or statutory commands against the state. A person doing so would not so
much be claiming something specific for him or herself (perhaps also that), but the performance of a public statutory duty or
commitment on behalf of a larger collective.

PAUSE FOR REFLECTION

Enforcing statutory duties against the state on behalf of individual complainants and
the larger collective
In Kutumela v Member of the Executive Committee for Social Services, Culture, Arts and Sport in the North
West Province,56 the plaintiffs had applied for the Social Relief of Distress Grant, but despite clearly being
eligible, did not receive it. Their complaint in response was not framed only as an application for each
individual complainant to receive the social assistance grant for which they were eligible and to which they
each had a subjective statutory right. Instead, the complaint alleged that the state had statutorily committed
itself to provide to eligible persons a Social Relief in Distress Grant in terms of the Social Assistance Act
and its regulations and had placed a duty on provincial governments to make good that commitment.
However, the province in question had not dedicated the necessary human, institutional and financial
resources to do so and the grant was therefore available only on paper.
The case was settled and resulted in a particularly wide-ranging order requiring certain relief specific to
the parties, but also various forms of general relief. Apart from requiring the provincial government in
question to acknowledge its legal responsibility to provide Social Relief of Distress Grants effectively to
those eligible for them, the order required it to devise a programme to ensure the effective implementation
of Social Relief of Distress Grants and to put in place the necessary infrastructure for the administration and
payment of the grant. In essence, the state was ordered to make good on a statutory commitment to give
effect to an aspect of the right to have access to social assistance. The result was that the grant would in
future be available to all eligible persons in addition to it being paid out to the individual complainants.

The enforcement of socio-economic rights through these kinds of statutory entitlements holds great promise. Statutory
entitlements are first likely to be much more detailed and concrete in nature than the vague and generally phrased constitutional
rights to which they purport to give effect. They therefore provide a more direct mechanism through which individuals can
leverage access to resources. In addition, courts are likely to enforce these statutory entitlements more robustly than they would
constitutional rights because they are enforcing a right, duty or commitment defined by the legislature itself rather than a broadly
phrased constitutional right to which they have to give content. As such, when courts enforce statutory entitlements, they are not
confronted to the same extent with the concerns of separation of powers, institutional legitimacy and technical competence that
have so directly shaped and limited their constitutional socio-economic rights jurisprudence. The constitutional validity of such
legislative provisions can, of course, also be tested against the relevant social and economic rights provision in cases where
litigants believe the legislation is under-inclusive and fails to provide sufficient or equitable access to the guaranteed right.

PAUSE FOR REFLECTION

Statutory entitlements more detailed and concrete in nature

The fact that statutory entitlements are likely to be much more detailed and concrete in nature than the
vague and generally phrased constitutional rights forming their background is clearly illustrated by the
Regulations Relating to Compulsory National Standards and Measures to Conserve Water.57
These regulations have been issued in terms of section 9 of the Water Services Act.58 They give effect
to the constitutional right of access to sufficient water guaranteed in section 27(1)(b) of the Constitution by
providing that:

[t]he minimum standard for basic water supply services is a minimum quantity of potable water
of 25 litres per person per day or six kilolitres per household per month –

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 (i) at a minimum flow rate of not less than 10 litres per minute;

(ii) within 200 metres of a household; and

(iii) with an effectiveness such that no consumer is without supply for more than seven full days
in any year.

In Mazibuko and Others v City of Johannesburg and Others,59 the Constitutional Court upheld the
constitutional validity of this regulation. In arriving at its decision, the Constitutional Court pointed out that
the Constitution imposes a positive obligation on the state to adopt legislative and other measures that give
content to the socio-economic rights guaranteed in the Constitution.60 In addition, the Court also pointed
out that the enforcement of socio-economic rights through statutory entitlements is consistent with the
founding values of the Constitution. This is because the standards adopted by the state inform citizens of
what government is seeking to achieve and thus enable citizens to monitor government’s performance and
to hold it accountable politically if the standard is not achieved or legally if the standard is not reasonable.61

In many jurisdictions other than South Africa where socio-economic rights do not enjoy constitutional status, they are protected
as statutory entitlements in the ordinary positive law. Possibly the best examples can be found in a number of the Scandinavian
countries, in particular Finland, where rights such as the right to social assistance, the right to housing, the right to daycare for
small children and rights of specified assistance for the severely handicapped are protected as subjective rights in national
legislation.62 However, in the absence of constitutional socio-economic guarantees, the existence of statutory socio-economic
entitlements may be precarious. In the United States, for example, the right to social welfare is not guaranteed in the federal
Constitution. The federal government has consequently been free gradually to reduce social welfare entitlements as public
perceptions have changed about the sustainability of comprehensive welfare provisions. 63
In South Africa, statutory socio-economic rights are not subject to legislative fiat to the same extent as in other jurisdictions
where constitutional socio-economic rights are absent. These rights in South Africa are enacted by the legislature to give effect to
constitutional socio-economic rights.64 Legislative interference with a statutory socio-economic right – such as a restrictive
legislative redefinition of a social assistance benefit – therefore constitutes an infringement of the constitutional socio-economic
right to which the statutory entitlement gives effect. Such legislative interference will only be constitutionally permissible if it is
justifiable in terms of the appropriate standard of scrutiny. By the same token, as we pointed out above, the statutory scheme that
is intended to give effect to a socio-economic right can be evaluated against that right to see whether or not it gives full effect to
that right.65
Apart from the corrective or protective background role played by constitutional socio-economic rights in relation to statutory
socio-economic rights, constitutional socio-economic rights inform the interpretation of statutory socio-economic rights. Also, the
fact that a statutory right or scheme is intended to give effect to a constitutional socio-economic right can in specific cases in a
rhetorical sense reinforce the enforcement of that statutory right or scheme. In Residents of Bon Vista Mansions v Southern
Metropolitan Council,66 the South Gauteng High Court gave an interim order that the plaintiff’s water supply be reconnected on
the basis of sections 4(1) and 4(3) of the Water Services Act. Although the decision was based on statutory entitlements, the
Court invoked the section 27(1)(b) constitutional right to have access to sufficient water to reinforce its finding. In other words, it
interpreted the provisions of the Water Services Act expansively and justified this by invoking the constitutional right that
guarantees everyone the right of access to water.
The Court proceeded from the assumption that a disconnection of a household water supply was a prima facie infringement
of the section 27(1)(b) constitutional right which had to be justified in order to be constitutionally sound. 67 The Court then held
that the provisions of the Water Services Act constituted ‘a statutory framework within which such breaches may be justified’. 68
Further, throughout the judgment the Court made reference to the fact that the Act was intended to give effect to the
constitutional right and that non-compliance with its provisions constituted an infringement of the constitutional right. 69
Finally, constitutional socio-economic rights protect statutory socio-economic rights from legal challenge on the basis of
other constitutional rights. The case of City of Cape Town v Rudolph and Others 70 dealt with a constitutional challenge to
provisions of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) 71 brought on the basis of
section 25 property rights. It was argued that the PIE Act infringed the property rights of individuals because it encouraged ‘land
grabbing’, thus limiting the property rights of the owners of property whose land is occupied. The Court rejected this argument
and pointed out that the impugned provisions of the PIE Act were intended to give effect to section 26(3) of the Constitution. The
High Court relied on this fact to reject the challenge.72

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 PAUSE FOR REFLECTION

Applying the principle of subsidiarity to socio-economic rights

In recent cases a potential complication in the relationship between constitutional socio-economic rights
and legislation enacted to give effect to them has arisen. Drawing on case law dealing with the relationship
between, for example, the constitutional right to administrative justice and the Promotion of Administrative
Justice Act (PAJA),73 enacted to give effect to the constitutional right, our courts have intimated that where
legislation has been enacted to give effect to a constitutional socio-economic right, litigants may no longer
rely directly on the constitutional right in question to review conduct or law that breaches that right.74
Instead, litigants must use the remedies provided by the legislation in question. The only remaining role for
the constitutional right using this approach is as an aid for the interpretation of the legislation in question
and as the basis for a possible constitutional challenge to the legislation giving effect to that right. In short,
our courts have started to apply the principle of subsidiarity to socio-economic rights.75

16.5.3 Translation through executive and administrative action

Apart from the legislature, the executive and state administration can also interpret socio-economic rights and so self-define the
duties that those rights impose on them through the adoption of policies or through simple executive or administrative decisions.
Courts can then enforce these self-defined duties against the executive or administration as the case may be. The policy
formulation or administrative decisions in some sense translate constitutional rights into enforceable legal duties or entitlements.
In B and Others v Minister of Correctional Services and Others,76 for example, four HIV-positive prisoners approached the
High Court with an application for an order that the state was constitutionally obliged to provide them with antiretroviral
treatment at its own expense. The case turned on the interpretation of the term ‘adequate medical treatment’ in section 35(2)( e) of
the Constitution. The Court held that it did not have the requisite medical expertise to determine what adequate medical treatment
for the various applicants entailed and whether or not it included antiretroviral medication.
On this basis it held against two of the applicants. 77 However, the Court did find in favour of a number of the applicants to
whom state medical personnel had already prescribed anti-retroviral medication. The Court’s reasoning with respect to these
prisoners was that, in their case, the state had itself through the prescription determined what ‘adequate medical treatment’ was
for them. In doing so, the state had translated the constitutional right to be provided with adequate medical treatment into a
concrete legal entitlement that the Court was willing to enforce.78
The relationship between socio-economic rights defined through executive or administrative action in this way, on the one
hand, and constitutional socio-economic rights, on the other, is similar to the relationship between constitutional and statutory
socio-economic rights described above. In the first place, executive or administrative action that defines duties and entitlements in
terms of constitutional socio-economic rights gives effect to those rights. As such, those rights can be protected against challenge
on other constitutional grounds.79 Second, such executive or administrative definition of constitutional socio-economic rights has
to comply with the requirements of the right to which it is intended to give effect. 80

16.6 Socio-economic rights and the courts

16.6.1 Introduction
The socio-economic rights in the Constitution are justiciable – that is, when they are infringed, they can be enforced through the
courts.81 In fact, it can be said that courts exercise the primary role in enforcing the statutory socio-economic rights described
above. In such cases they ‘mechanically’ enforce socio-economic rights as predefined by the legislature, often also through
particular remedies determined by the legislature. The law-making role of the courts here, although certainly present, is much
restricted.
However, courts also directly translate constitutional socio-economic rights into enforceable legal claims through their
interpretation and application of these rights. In the process of adjudicating disputes on the basis of constitutional socio-economic
rights rather than on the basis of statutory socio-economic rights, courts interpret these rights and give concrete and authoritative

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 expression to the duties they impose and to the entitlements they create in much the same way that the legislature does when
giving effect to them through legislation. Courts also, through their orders, enforce the duties and entitlements that they define.

16.6.2 Modes of adjudication: sections 8 and 39(2)

The power of courts to translate socio-economic rights into concrete legal claims in this way is mediated through two provisions
of the Constitution. Sections 8 and 39(2) (the application sections) regulate the question of how and under what circumstances
fundamental rights, including socio-economic rights, interact with existing law and with conduct. As such, these sections indicate
which kinds of legal claims can be launched through the courts on the basis of constitutional socio-economic rights, against
whom and how the courts may deal with such claims.
Section 8(1) declares that the Bill of Rights ‘applies to all law’ 82 and ‘binds the legislature, the executive, the judiciary and
all organs of state’. Section 8(2) extends the reach of the Bill of Rights to the private sphere, declaring that if the ‘nature of [a]
right and the nature of any duty imposed by [that] right’ allows, the right ‘binds a natural or a juristic person’. Section 8(3)
provides that when a court has found in terms of section 8(2) that a right in the Bill of Rights is applicable in litigation between
private parties and that the right has been limited by one of the parties to the litigation, it must give effect to that right by applying
an existing statutory or common law remedy. In the absence of such an existing remedy, the court must develop the common law
to create a remedy that will give effect to the right. 83 Finally, section 39(2) determines that when a court interprets legislation or
develops the common law, it ‘must promote the spirit, purport and objects of the Bill of Rights’. This places a general
interpretative injunction on courts to infuse existing law with constitutional values.
Litigants can challenge the constitutionality of any law – that is, any statutory rule, common law rule or customary law rule –
whether it is the state or a private party that relies on it. 84 The consequence of a successful constitutional challenge to a statutory
rule is that the rule is overturned and the situation reverts to the common law position that existed before the particular rule was
enacted. This should lead to the legislature enacting new legislation to regulate the same issues, but the court can also itself
remedy the constitutional defect by reading words into the impugned provision. If a rule of common law is successfully
challenged, a court will employ its inherent power to develop the common law to change that rule or to develop new rules so as to
make the common law position consistent with the constitutional right in question. 85
A statutory provision was challenged in this way as inconsistent with a constitutional socio-economic right in the case of
Khosa and Others v Minister of Social Development and Others, Mahlaule and Another v Minister of Social Development .86
This case dealt with provisions of the Social Assistance Act and the Welfare Laws Amendment Act 87 that restricted access to
social assistance to South African citizens to the detriment of permanent residents and their children. These provisions were
successfully challenged as inconsistent with the section 27(1) right of everyone to have access to social security and assistance
and the section 9(3) prohibition on unfair discrimination.88
An example of where a common law rule was challenged as inconsistent with a constitutional socio-economic right occurred
in Brisley v Drotsky.89 In this case, the existing common law rules regulating private evictions were unsuccessfully challenged as
inconsistent with the section 26(3) prohibition on arbitrary evictions. Had the challenge been successful, the Court would have
had to develop the common law so as to take adequate account of the section 26(3) injunction that courts take account of ‘all
relevant factors’ before issuing an eviction order. The result would then have been that courts would have a discretion, exercised
on the basis of their consideration of relevant circumstances, whether or not to grant the order. 90
Litigants can challenge state or private conduct as inconsistent with a constitutional right. If state conduct is successfully
challenged, it would simply be invalid and the court would craft a constitutional remedy to vindicate the right in question. If
private conduct is successfully challenged, a court would attempt to find a remedy in the existing statutory or common law that
can be adapted to vindicate the right in question. In the absence of such existing remedy, the court would develop the common
law so as to provide such a remedy.
An example of a successful constitutional challenge to state conduct as inconsistent with a constitutional socio-economic
right is Treatment Action Campaign (2) where a policy position of the National Department of Health was successfully
challenged as being inconsistent with the section 27(1) right to have access to health care services. The result was that the policy
was invalidated and the Court ordered the government to adopt and implement a policy that would be constitutionally sound.
There has as yet been no example of a challenge to private conduct as inconsistent with a constitutional socio-economic right.
Finally, litigants can argue that a rule of law on which the other party to the litigation relies is inconsistent, not with a
particular right, but with the general tenor of the Bill of Rights, the ‘objective value system’ that underlies its particular
provisions. A court that accepts such a proposition would then interpret the statutory provision in question or develop the
common law rule so as to give effect to the ‘spirit, purport and objects’ of the Bill of Rights.
An example of this kind of interaction between the Bill of Rights and the existing law occurring in the context of
socio-economic rights protection is Afrox Healthcare Bpk v Strydom.91 The Supreme Court of Appeal (SCA) was unsuccessfully
asked to develop the common law of contract through the rule that contractual terms that conflict with the public interest are

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 unenforceable. This would have rendered unenforceable disclaimers in contracts between hospitals and their patients that
indemnify the hospitals from liability for damage negligently caused to patients.

16.6.3 Constraint in the adjudication of socio-economic rights claims

16.6.3.1 Separation of powers concerns

Courts operate under the control of a set of unwritten constraints related to their institutional legitimacy, their constitutional place
and their technical capacity, in particular when they adjudicate claims on the basis of constitutional socio-economic rights in any
of the three possible ways described above. Courts are constrained in their law-making role with respect to socio-economic rights
by what can loosely be described as separation of powers concerns. Both in the international arena and to a lesser extent in South
Africa, the status of socio-economic rights as legal rights has long been questioned, mostly on the basis that these rights are not
justiciable.92
The arguments along this line all proceed from the same assumption. Socio-economic rights supposedly uniquely create
entitlements to affirmative state action and consequently require the expenditure of resources if they are to be realised. Courts, so
it is argued, do not have the institutional and technical capacity to deal with the polycentric questions of social and economic
policy that claims based on these affirmative rights will inevitably raise. Nor do courts have the democratic legitimacy to question
the socio-economic policy choices of the elected political branches of government that will be implicated. Courts are further
hampered by the fact that socio-economic rights supposedly do not pose justiciable legal standards according to which these
assessments can be made.
If courts engage in the adjudication of socio-economic rights claims, the arguments proceed, this could both erode the
legitimacy of the judiciary and the idea of human rights as a whole. Because of economic realities, the state may not be able to
deliver the basic services that the courts require the state to provide whatever courts have to say. 93 This places courts in a
potentially damaging confrontation with the political branches of government.94
The most convincing response to these arguments does not deny that socio-economic rights present problems to the process
of adjudication, but does deny that these problems mark them as essentially different from other rights. According to this line of
argument, already touched on above, all rights impose both affirmative and negative duties on the state, depending on the
circumstances under which they are enforced. The difficulties attending the judicial enforcement of the affirmative aspects of
socio-economic rights also occur in the judicial enforcement of these aspects of other rights. The conclusion is that a rigid
categorisation of rights into those that are justiciable and those that are not is simply false. All rights instead fall somewhere along
a ‘justiciability spectrum’ where some are more easily justiciable than others. The ‘possibility and role of judicial enforcement …
[should be] assessed and developed in relation to each human right’ 95 instead of being denied a whole class or category of
rights.
The simple fact that socio-economic rights were eventually included in the Constitution in South Africa as justiciable rights
shows that this latter, more nuanced argument regarding their justiciability won the day in South Africa. Nevertheless, an echo of
the objection to their inclusion remains in the way some of these rights included in the Bill of Rights, especially sections 26 and
27, have been formulated. The careful limitation of the scope and nature of the positive duties imposed by the qualified
socio-economic rights described above seems to be aimed at mediating some of the difficulties with the judicial enforcement of
socio-economic rights that those opposed to their entrenchment have raised. In their interpretation of socio-economic rights, our
courts have been attuned to this echo.

16.6.3.2 The Constitutional Court’s approach to separation of powers concerns

Although the Constitutional Court has from the start emphasised that socio-economic rights are indeed justiciable, 96 it has since
been at great pains to show that it regards itself importantly bound by the unwritten separation of powers constraints outlined
above.97 The Court has variously justified what many have described as its restrained, respectful or deferential approach to
deciding socio-economic rights cases 98 with reference to its lack of technical expertise in deciding the issues raised in
socio-economic rights cases; its lack of democratic accountability in contrast to the executive and legislative branches in this
respect; 99 and its institutionally determined inability to access and process the essential information needed to decide the policy,
evaluative and allocation questions that arise in such cases. 100 In addition, commentators have pointed out that, in a more
strategic sense, the Court’s concern for the maintenance of its own institutional integrity in relation to the executive and
legislature has had a constraining effect.101

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Separation of powers constraints on the Constitutional Court when interpreting and

applying socio-economic rights
The fact that the Constitutional Court regards itself as bound by separation of powers constraints when it
interprets and applies socio-economic rights is clearly illustrated in its judgment in the case of Grootboom
where Yacoob J stated that:

[t]he precise contours and content of the measures to be adopted are primarily a matter for the
Legislature and the Executive. They must, however, ensure that the measures they adopt are
reasonable. In any challenge based on s 26 in which it is argued that the State has failed to meet
the positive obligations imposed upon it by s 26(2), the question will be whether the legislative
and other measures taken by the State are reasonable. A court considering reasonableness will
not enquire whether other more desirable or favourable measures could have been adopted, or
whether public money could have been better spent. The question would be whether the
measures that have been adopted are reasonable. It is necessary to recognise that a wide range
of possible measures could be adopted by the State to meet its obligations. Many of these would
meet the requirement of reasonableness. Once it is shown that the measures do so, this
requirement is met.102

In passages like these, we find echoes of the view, discussed in particular in chapters 2 and 6 of this book,
that the Constitutional Court views its relationship with the other branches of government within the
framework of the separation of powers doctrine as one in which a structured dialogue takes place. This
dialogue is one in which each of the parties is designated a particular role to play and in which the dialogue
proceeds in a predestined manner – almost like actors speaking the words written by a playwright. In this
view, the courts cannot overstep their powers by treading on the terrain of the other branches of
government, much like an actor in a play should not tread on the toes of other actors by speaking their
lines.

The constraint exercised because of separation of powers concerns shows at two different points in the process of adjudicating
socio-economic rights claims. First, it influences the willingness of the Constitutional Court to entertain certain questions at all
when it is asked to decide a case.103 It also determines the extent to which and the manner in which the Court is willing to
interrogate those questions that it does feel comfortable dealing with or cannot avoid. 104 Second, it significantly constrains the
Court in fashioning orders to enforce its findings where it has held against the state in a socio-economic rights case. 105 Clearly,
the extent to which the Court feels itself bound by constraints in specific cases significantly determines the possible outcome of
those cases.

16.6.3.3 Factors influencing separation of powers concerns

16.6.3.3.1 Introduction
A number of factors related to the nature of specific cases and the manner in which they are argued influences the extent to which
courts feel themselves bound by separation of powers constraints. It is important to take cognisance of these factors when we
want to predict to what extent a court will exercise its powers to enforce social and economic rights in a particular case. It is
impossible to provide an encyclopaedic list of such factors or to discuss all the factors in detail in this chapter. However, we
identify and discuss the important factors as an illustration of how separation of powers concerns influence social and economic
rights adjudication by the judiciary.106

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 16.6.3.3.2 Where the legislature, executive or state administration has defined the legal duties, courts are more likely to
intervene
In certain social and economic rights cases, courts are not required to interpret and enforce the rights contained in the Constitution
itself. Sometimes courts are merely required to enforce socio-economic rights duties which the legislature, the executive or the
state administration has itself defined. In such cases, courts feel less constrained as the elected branches of government have
chosen to define the duties imposed by social and economic rights themselves and, as it were, invited the courts to police whether
these duties are being fulfilled. Arguing a case on the basis of such self-defined duties, rather than directly on the basis of a
constitutional socio-economic right, is therefore generally to be preferred.
The most obvious examples of the enforcement of such self-defined duties are cases where courts enforce statutory
socio-economic rights in either of the two senses described above.107 In most such cases, constraint is diluted not only by the
fact that courts are not faced with having to define duties to impose on the state themselves, but also because courts are able to
use remedies from the existing law to enforce statutorily defined duties. The many instances where courts have enforced statutory
entitlements to social assistance through administrative law remedies illustrate this point. 108
Perhaps the most dramatic example of courts’ preference for the enforcement of statutory entitlements is the line of cases
culminating in Ndlovu v Ngcobo; Bekker and Another v Jika.109 In terms of the common law, a court must grant an eviction
order if the applicant can show that he or she is the owner and that the evictee is occupying the land. 110 Section 26(3) of the
Constitution, by contrast, determines that a court may only grant an eviction order after considering all relevant circumstances.
Tenure security laws – most importantly the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE Act)
111 – require courts in certain instances to consider all relevant circumstances before granting an eviction order and as such to

give effect to section 26(3).112

However, conflicting decisions in the High Courts raised uncertainty over whether these laws, and particularly the PIE Act,
apply also to evictions in cases of holding over. These are cases where initially lawful occupation subsequently became unlawful.
113 In such cases, courts have consequently been faced with the question whether, in lieu of the PIE Act, section 26(3) changed
the common law rules of eviction so as to confer discretion on courts.
After a series of conflicting decisions in the High Courts in this respect, 114 the question reached the SCA in Brisley. The
Court went to somewhat tortuous lengths to avoid developing the common law in line with section 26(3). It held that the
section 26(3) ‘relevant circumstances’ could only be legally relevant circumstances. For the Court, the only circumstances legally
relevant to the question whether an eviction should be allowed were the common law requirements of whether the evictor was the
owner of the land in question and whether the evictee was occupying the land. As a result, the SCA held that section 26(3) did not
change the rules of the common law.115 The only influence that section 26(3) exerted on the existing law was the influence
exerted through the tenure security laws. The common law was left intact with respect to those kinds of evictions to which the
tenure security laws did not apply.
Five months after Brisley, the SCA decided Ndlovu; Bekker. In this case, the SCA was faced with the question whether or not
the statutory entitlements to security of tenure created by the legislature in the PIE Act applied also to evictions in cases of
holding over. The Court extended the PIE Act’s application to such evictions. 116 The result in practice was exactly the same as
the result would have been had the Court decided Brisley differently. Courts would now also have a discretion in cases of holding
over, exercised on the basis of a consideration of all relevant circumstances, whether or not to grant an eviction order. 117 What
the Court was unwilling to do itself in Brisley on the basis of a constitutional right, it was happy to do in Ndlovu; Bekker on the
basis of the PIE Act’s statutory entitlements.
By the same token, courts are more comfortable with enforcing socio-economic rights where they have been defined through
executive or administrative action as described above. In B v Minister of Correctional Services, the Court was willing to order the
state to provide at its own cost antiretroviral medication to the two applicants to whom the state had prescribed it. By contrast, the
Court refused to make the same order with respect to the two applicants for whom the medication had not yet been prescribed.
This decision turned on the fact that the prescription of the medication to the first two applicants amounted to an administrative
self-definition of the state’s duty. The Court was willing to enforce that duty because, in doing so, it was not required itself to
determine what adequate medical treatment entailed, a task that it felt it did not have the requisite expertise to undertake. 118
The Treatment Action Campaign (2) judgment of the Constitutional Court provides a similar example. This case concerned,
however, policy formulated by the Cabinet rather than a decision by the general state administration. In the TAC case, the Court
was asked to consider the right of access to health care for HIV-positive pregnant mothers. The case involved specifically the
question whether they are entitled to a single dose of antiretroviral drugs at the birth of their babies to reduce the transmission of
HIV from mother to child. The Court engaged in a relatively robust manner with issues of HIV/AIDS policy and was more
willing to impose a precise and intrusive directory order on the state compared with other cases. This can in significant part be

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 explained by the fact that the Court was simply requiring the state to extend to its logical conclusion a policy decision that it had
itself already taken. This policy decision was that Nevirapine was suitable and safe to provide to mothers giving birth at select
public health facilities and their new-born children to prevent the transmission of HIV. The Court required the state to extend the
provision to all public health facilities for the same purpose.119 Again, an element of self-definition of duties, this time through
an executive policy decision, influenced the Court’s perception of constraint.

CRITICAL THINKING

Social mobilisation of citizens in addition to litigation

It is sometimes argued that the reasons why the Treatment Action Campaign (2) case was successfully
litigated go beyond the fact that the Court was required to extend a policy decision already taken by the
executive. Mark Heywood, a member of the TAC at the time the case was heard, argues that the TAC was
so successful because it used both social mobilisation and litigation – based on the right of access to health
care – to pursue clearly defined goals. Heywood argues that in each case in which the TAC invoked
constitutional rights and threatened or pursued litigation against private institutions (like drug companies) or
the state:

the litigation was not left to lawyers, but used to strengthen and empower a social movement
and backed up by marches, media, legal education, and social mobilization. Without an
accompanying social mobilization, the use of the courts may deliver little more than pieces of
paper, with a latent untapped potential. For example, one of South Africa’s most
ground-breaking socio-economic rights judgments (Government of the RSA and Others v
Grootboom and Others, 2001) concerns the right to housing. It was delivered by the
Constitutional Court in 2001. But in 2008, when Irene Grootboom, the first applicant, died she
was still without a house … Some writers … suggested that this combination of human rights
advocacy and litigation will reveal its limitations when it comes up against defences based on
arguments about resource constraints and ‘available resources’. However, TAC argues that in a
system of governance in which rights are supposed to be pivotal to policy making, decisions on
resource allocations must be subject to what Pius Langa, the South African Chief Justice, calls
the ‘culture of justification’ … This means that decisions on spending on crucial socio-economic
rights should not be determined only by what state treasuries (in their own wisdom) decide is
affordable.120

Heywood is in effect arguing that the broader social mobilisation of citizens around social and economic
rights claims is important in pursuing social justice claims and that an over-reliance on the courts to effect
social change may backfire or may not produce beneficial results for those citizens most in need.

16.6.3.3.3 Negative rather than positive duties

As a general point of strategy and to avoid separation of powers constraints, it is preferable to characterise infringements of any
socio-economic right as a negative rather than a positive infringement of the specific right. As a rule, courts will scrutinise
alleged infringements of negative duties imposed by socio-economic rights more strictly than they would failures in meeting
positive duties. There is some evidence from the case law that this is a matter of judicial attitude in the first place. Courts simply
feel themselves less constrained when adjudicating negative infringements as they perceive the enforcement of negative duties as
requiring less interference in the sphere of power of the political branches than the enforcement of positive duties. 121 However,
particularly with respect to the qualified socio-economic rights, the difference in degree of judicial constraint at play in cases of
enforcement of positive as opposed to negative duties seems simply to be required by the way in which these rights are
formulated and by the general structure of constitutional litigation.
As we pointed out in chapter 10, constitutional litigation in South Africa proceeds in two stages. First, the complainant bears
the onus of persuading the court that a right in the Bill of Rights has been infringed. Should a court find that the right has in fact
been infringed, the state (or where a constitutional duty has been infringed by a private party, the private party in question) bears
the onus of justifying and so rendering constitutionally sound its limitation of that right. In principle, the standard of scrutiny in
terms of which courts decide whether or not any infringement of any constitutional right, including any socio-economic right, is
justified is prescribed by section 36(1), the general limitation section, which applies to all rights.
However, despite the fact that section 36(1) in principle applies to all infringements of all constitutional rights, courts in

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 practice do not apply section 36(1) when they must decide whether or not failures by the state to give effect to the positive duties
to protect, promote and fulfil the qualified socio-economic rights can be justified.122 Recall that the positive duties imposed by
qualified socio-economic rights in sections 26 and 27 of the Constitution are explicitly described as duties to take reasonable
legislative and other measures, within available resources, to achieve the progressive realisation of the rights in question. 123 The
Constitutional Court has interpreted these qualifying phrases as an internal limitation clause: in essence, a special standard of
reasonableness scrutiny, used instead of section 36(1), according to which the Court decides specifically whether or not failures in
meeting the positive duties imposed by qualified socio-economic rights can be justified.
Whether or not the possible justification of an infringement of a socio-economic right is considered in terms of section 36(1)
or in terms of the special limitation clause that applies to positive infringements of qualified socio-economic rights significantly
determines the degree of constraint under which a court operates. This is so because the standard of scrutiny that is applied under
the two tests is different. Section 36(1) first poses a threshold requirement that an infringement of a right must meet in order for it
to be capable of justification – the infringement must have occurred in terms of law of general application to be at all justifiable.
124 Second, section 36(1) poses a standard of justification that the infringement must satisfy once it has passed the threshold. The
standard of justification or scrutiny required by section 36(1) is relatively intrusive. It has been described by our courts as a
proportionality test. A court weighs the purpose and benefits of the infringement against its nature, effect and severity. The court
then considers the relative efficacy of the infringing measure in achieving its purpose in deciding whether or not it is justified. As
such, it allows courts a fair amount of leeway to interrogate state conduct and to prescribe specific alternative options where state
conduct is found to be unjustifiable. By contrast, the reasonableness test that applies in cases of infringements of the positive
duties imposed by the qualified socio-economic rights is applied as a shifting standard of scrutiny.
Usually, when the court enquires into whether the state has acted reasonably to protect, promote and fulfil its duties in terms
of sections 26 and 27, it will ask whether the means used by the state were effective in achieving the purpose the state set out to
achieve. This enquiry gives the state considerable leeway as we pointed out above. 125 Only in exceptional cases does the court
apply the reasonableness test in a more searching manner and ask whether there was some proportionality between the actions of
the state and the aims it claims to want to achieve.126 This means that the court would not explicitly consider the relative efficacy
of challenged state measures compared to other possible measures because, once again, of separation of powers concerns. 127 As
a result, infringements of the positive duties imposed by qualified socio-economic rights are usually evaluated against a more
lenient standard of scrutiny than the standard that applies to other infringements of rights in terms of section 36(1). In other
words, courts are more constrained in their assessment of such infringements than they are with respect to other infringements.
As pointed out above, it is often possible to characterise the same infringement of a socio-economic right as an infringement
of either the negative or the positive duties imposed by the right. The special limitation clause that applies to the positive duties of
the qualified socio-economic rights in lieu of section 36(1) of course does not also apply to the negative duty to respect those
same qualified socio-economic rights 128 or to any of the negative or positive duties imposed by the basic socio-economic rights.
129 Infringements of these rights can still only be justified in terms of section 36(1). As a strategic matter, therefore, it is better to
characterise a case brought on the basis of a qualified socio-economic right as a negative infringement of that right where
possible. This will involve the application of section 36(1) during the justification phase of the litigation and, as such, will
significantly dilute the constraint under which the court operates. By the same token, it is preferable, again where possible, to
base a case on one of the unqualified basic socio-economic rights, whether a negative or a positive infringement is at play.
The question whether or not section 36(1) or the special reasonableness limitations clause applies is in a strategic sense
important for two further practical reasons unrelated to judicial constraint. First, it has important consequences for the onus of
persuasion facing litigants in socio-economic rights cases. As a rule, in Bill of Rights litigation, a party who alleges that a right in
the Bill has been infringed must persuade a court that this is indeed so. A complainant has to make a prima facie case that the
conduct of the respondent has infringed a right in the Bill of Rights. Once such a prima facie case has been made, the respondent
bears the onus of persuading the court that the infringement is justifiable. 130 The potential benefit of this structure is that it
requires very little of a complainant in the way of establishing questions of fact. The complainant usually simply has to propose a
certain interpretation of the right he or she alleges is being infringed. The complainant then has to show that the respondent’s
conduct infringes the right so described, an exercise that mostly involves arguing questions of law on an abstract level.
However, in the kinds of socio-economic rights cases referred to above, where the allegation is that the state has failed to take
reasonable steps within available resources to achieve the progressive realisation of a qualified socio-economic right, this
structure is bedevilled. In such cases, for the complainant to show that the right has in fact been infringed involves making a
prima facie case that the state’s existing measures are unreasonable. The state then has the opportunity to rebut this prima facie
showing by arguing that its measures are in fact reasonable.131 The difficulty is that for a complainant to make a prima facie
showing that the state’s measures are unreasonable requires the complainant to establish a wide range of factual questions. These
questions mostly relate to information that is more or less uniquely in the knowledge of the complainant’s opponent, the state. 132

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 Often, of course, the typical socio-economic rights complainant would not have the required access to information and resources
to do this. This may be another reason why litigation spearheaded by social movements like the Treatment Action Campaign has
been successful. TAC’s resources allowed it to present an overwhelming amount of persuasive evidence to the court.
Second, the special limitation clause that applies in cases of positive infringements of qualified socio-economic rights
potentially allows for the justification of all positive infringements of qualified socio-economic rights. This is because it does not
also impose a threshold requirement of law of general application as section 36(1) does. Certain infringements that would simply
not be capable of justification in terms of section 36(1) – infringements that occur in terms of simple state conduct, for example,
unrelated to any law of general application 133 – can be justified in terms of the reasonableness test that applies to the qualified
rights.
Both these factors, although not related to constraint as such, additionally indicate a preference for arguing a case as a
negative infringement rather than a positive one, or on the basis of a basic rather than a qualified socio-economic right.

PAUSE FOR REFLECTION

Separation of powers concerns overstated

As we have argued throughout this book, separation of powers concerns loom large whenever unelected
judges are empowered by the Constitution to declare invalid the actions of members of the executive or of
Parliament. These members usually have more democratic legitimacy because of the direct link between
voter preferences and the staffing of these institutions. It is sometimes argued that this problem becomes
more acute when the courts are empowered – as they are under the Constitution – to enforce social and
economic rights. However, we contend that these concerns are often overstated. As the Constitutional
Court pointed out in Treatment Action Campaign (2):

The primary duty of courts is to the Constitution and the law, “which they must apply impartially
and without fear, favour or prejudice”. The Constitution requires the state to “respect, protect,
promote, and fulfil the rights in the Bill of Rights”. Where state policy is challenged as
inconsistent with the Constitution, courts have to consider whether in formulating and
implementing such policy the state has given effect to its constitutional obligations. If it should
hold in any given case that the state has failed to do so, it is obliged by the Constitution to say
so. In so far as that constitutes an intrusion into the domain of the executive, that is an intrusion
mandated by the Constitution itself. There is also no merit in the argument … that a distinction
should be drawn between declaratory and mandatory orders against government. Even simple
declaratory orders against government or organs of state can affect their policy and may well
have budgetary implications. Government is constitutionally bound to give effect to such orders
whether or not they affect its policy and has to find the resources to do so.134

Moreover, section 1(d) of the Constitution explicitly links the democratic nature of the system of government
to open, accountable and responsive government.135 Where courts enforce social and economic rights,
they ensure a more accountable and responsive government, thus enhancing and not diminishing the
democratic nature of the state. A democratic state is responsive to the needs of those who live in that state
and a court that enforces social and economic rights helps the state to be as responsive as financial and
other resources available to the state allow that state to be. Thus, it can be argued that the enforcement of
social and economic rights by the courts assists the state to be more democratic not less so.

16.7 Different forms of judicial enforcement of socio-economic rights

The preceding discussion creates the context within which a more detailed description and analysis of the mechanics of the
enforcement of socio-economic rights by the courts can take place. We thus proceed to consider each of the different ways in
which courts may enforce socio-economic rights in turn, using the constitutional command that these rights must be respected,
protected, promoted and fulfilled as a template. While doing so, keep in mind that this taxonomy can be somewhat artificial and
that the duties imposed by a specific social or economic right can overlap and can implicate more than one of the commands to
‘respect, protect, promote and fufil’ the right.

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 16.7.1 The duty to respect

16.7.1.1 Introduction
The duty to respect socio-economic rights requires the state and others to:
• refrain from interfering with people’s existing enjoyment of socio-economic rights
• mitigate interferences with people’s existing enjoyment of socio-economic rights when such interferences are unavoidable
• refrain from impairing people’s access to socio-economic rights.

As pointed out above, the courts are likely to enforce the different elements of this negative duty more robustly than the positive
duties to protect, promote and fulfil. The duty to respect, consequently, is a potentially potent tool with which to ensure people’s
adequate access to basic resources.

16.7.1.2 The duty to refrain from interfering with people’s existing enjoyment of socio-economic rights
South Africa’s apartheid history provides particularly stark examples of the violation of this element of the duty to respect
socio-economic rights. The most obvious of these relate to the right to have access to land and to housing. In terms of the spatial
segregationist policies of grand apartheid, large numbers of people were dispossessed of and forcibly removed from their land
and their homes. People were also arbitrarily evicted from informal settlements as a result of so-called ‘influx control’ policies.
136 The statutory measures in terms of which these dispossessions and removals occurred have now been repealed and new legal
measures have been put in place preventing a recurrence of such practices. Apart from the fact that the dispossession of land by
the state is now regulated by section 25 of the Constitution, 137 the eviction of people from land is heavily regulated by a raft of
new laws. Two examples are the Extension of Security of Tenure Act (ESTA) 138 and the PIE Act.139 Both laws make eviction
from land in certain instances more difficult than it would ordinarily be by, inter alia, requiring that a court consider whether an
eviction would be just and equitable in the light of all relevant circumstances before granting an eviction order. 140 Both the
repeal of the old laws and the new legal measures are examples of legislative translations of the duty to respect the rights to have
equitable access to land and to housing, and particularly of the prohibition on arbitrary evictions, into concrete legal entitlements.

PAUSE FOR REFLECTION

The notorious removals from District 6

One of the most notorious forced removals occurred in District 6, a suburb close to the city centre of Cape
Town. The South African History Archive describes the facts around this removal and the destruction of
District 6 by the apartheid state:

On February 11, 1966, the apartheid government declared Cape Town’s District Six a whites-only
area under the Group Areas Act of 1950. From 1968, over 60 000 of its inhabitants were forcibly
removed to the Cape Flats, over twenty five kilometres away. Except for the local houses of
worship, the buildings were systematically bulldozed throughout the 1970s, and by 1982 almost
all evidence of the district had been destroyed. Originally named the Sixth Municipal District of
Cape Town in 1867, the neighbourhood was home to almost ten per cent of the city’s population.
Its unique culture was a composite of the dynamic and diverse population of Malay, Eastern
European, Indian and African immigrants, ex-slaves, artists, musicians and activists. District Six
was famed for its proximity to the City Centre, as well as its view of the picturesque Table
Mountain and harbour. District Six had experienced a long history of removals, with black
residents forcibly removed as early as 1901. This was intensified in the early 1960s, when
residents were perfunctorily given notice and informed of their new homes. By the mid 1960s the
apartheid government regarded the district as both physically and morally tainted by
miscegenation, wholly unfit for rehabilitation. Over the next two decades, they systematically
razed it to the ground.141

The same pattern was repeated in many other parts of South Africa. The inclusion of a specific provision in
the Constitution to prevent the arbitrary eviction of people from their homes is therefore not surprising.

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 Courts have been involved in the translation of this element of the duty to respect socio-economic rights in different ways. In the
first place, courts have enforced legislative translations in this respect. A large body of case law has already developed around the
eviction provisions of statutes such as the ESTA and the PIE Act. Second, courts have also directly enforced this element of the
duty to respect socio-economic rights by invalidating laws that allowed the state to interfere in the existing enjoyment of
socio-economic rights or by preventing the state from interfering in the enjoyment of such rights.
In Jaftha v Schoeman and Others, Van Rooyen v Stoltz and Others , for example, the Constitutional Court found that
section 66(1)(a) of the Magistrates’ Courts Act 142 unjustifiably breached the negative duty to respect the right of everyone to
have access to adequate housing.143 These provisions allowed the sale in execution of a person’s home to make good a judgment
debt without adequate judicial oversight. The Court proceeded to read words into the statute to make provision for appropriate
judicial oversight.144 More recently, the Court reconsidered the execution process in the High Court along similar lines in
Gundwana v Steko Development CC and Others.145
Section 27(3), the right not to be refused emergency medical treatment, can perhaps also be interpreted to give expression to
the state’s duty to respect socio-economic rights by refraining from interfering in the existing enjoyment of these rights. In
Soobramoney, the Constitutional Court held this right only required the state not to refuse arbitrarily emergency medical
treatment where it exists. This is an inordinately restrictive reading which, as Alston and Scott point out, renders the right
virtually redundant.146 A matter which at this stage remains unclear is the question whether or not section 27(3) of the
Constitution could also be used to prohibit the state from disestablishing an emergency medical service at a public health
institution to save costs.147

16.7.1.3 The duty to mitigate interferences with people’s existing enjoyment of socio-economic rights when
such interferences are unavoidable
The duty to respect socio-economic rights does not entail an absolute prohibition on the state preventing it from interfering in the
existing exercise of such rights. There are many instances in which it is simply unavoidable for the state to interfere, often to
advance the public interest in some respect or to protect the rights of others. In such cases, the duty to respect requires that an
effort be made to mitigate the effect of the interference in the enjoyment of the right in question by providing some form of
alternative access to it. This element of the duty to respect socio-economic rights is potentially quite burdensome and often
requires the expenditure of significant resources and significant adjustments in policy. Nevertheless, our courts have shown
themselves to be willing to enforce this duty in a robust fashion. The security of tenure laws referred to above again provide a
good example of how this constitutional duty has been translated into a statutory entitlement of sorts. These laws, in some
instances, require courts to consider to what extent suitable alternative land is available for evictees before granting an eviction
order and an eviction order can be denied if such an alternative is absent. 148
In Port Elizabeth Municipality v Various Occupiers,149 for example, the state had applied for an order to evict illegal
occupants from privately owned land in terms of section 6 of the PIE Act. Section 6 allows a court to grant such an order, but
only if it is just and equitable to do so taking into account various factors including ‘the availability to the unlawful occupier of
suitable alternative accommodation or land’.150 The Constitutional Court confirmed the SCA’s decision denying the eviction
order.151 The Court held that section 26(3) of the Constitution, mediated through section 6 of the PIE Act, required that when the
state seeks to evict, it must provide suitable alternative accommodation to the evictees. This duty would not be operative in all
cases of state-sponsored eviction.152 A court would have to decide whether or not to enforce this duty on the basis of a
consideration of each case’s ‘own dynamics, its own intractable elements that have to be lived with (at least for the time being),
and its own creative possibilities that have to be explored as far as reasonably possible’. 153
To decide whether or not the duty applied, the Constitutional Court looked in general terms at the position and the conduct of
the occupiers, at the conduct of the municipality in its management of the matter and at the conduct of the landowners in
question. The Court took the following factors into consideration:
• the fact that the occupiers in this case had lived on the land in question for a long period of time 154
• that they would be severely affected by any eviction 155
• that they had occupied the land, not in order to force the municipality to provide to them, in preference to others, alternative
land when they were eventually evicted, but because they had been evicted from elsewhere and had nowhere to go 156
• that there was ‘no evidence that either the municipality or the owners of the land need to evict the occupiers in order to put
the land to some other productive use’ 157
• that the municipality had made no serious effort to reach an amicable conclusion to the matter, but had rushed to apply for an

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 eviction order and had acted unilaterally.158

These factors drove the Court to the conclusion that an eviction order could not be granted unless suitable alternative land or
accommodation was provided. Although the municipality had offered to allow the occupiers to move to two possible alternative
sites, the Constitutional Court went so far as to find that neither of those sites was suitable, most importantly because the
municipality could not guarantee to the evictees security of tenure if they were moved there. 159 As a result, the occupiers were
allowed to remain on the land in question.160
The robust manner in which the Constitutional Court dealt with this element of the duty to respect socio-economic rights in
Port Elizabeth Municipality could in part be explained by the fact that the Court was enforcing a statutory duty in terms of the
PIE Act. However, there are also indications in the case law that the courts are willing to enforce this burdensome element of the
duty to respect socio-economic rights against the state even where a statutory duty to this effect does not apply.
For example, in Modderfontein Squatters, Greater Benoni City Council v Modderklip Boerdery (Pty) Ltd (Agri SA and Legal
Resources Centre, amici curiae); President of the Republic of South Africa and Others v Modderklip Boerdery (Pty) Ltd (Agri SA
and Legal Resources Centre, amici curiae),161 the SCA was confronted with a claim brought by a private landowner. The
landowner argued that the state was constitutionally obliged effectively to protect his constitutional right to property by enforcing
and carrying out an eviction order that he had obtained in terms of section 4 of the PIE Act against a large group of people
unlawfully occupying his land. The Court held that the state was indeed obliged to protect the claimant’s right to property against
invasion by unlawful occupiers.162 However, at the same time, the state was obliged to protect the right of the unlawful
occupiers to have access to adequate housing.163 On the facts of the particular case, the Court held that this meant that the state,
were it to execute the eviction order against the unlawful occupiers, would have to act ‘humanely’. This meant, inter alia, that the
state could not evict the unlawful occupiers unless it ‘provide[d] some [alternative] land’. 164 This conclusion led the Court to
order the state to pay damages to Modderklip to make good the breach of its right to property and its failure to protect against that
breach.165 The Court also ordered that the unlawful occupiers be allowed to remain on Modderklip’s land until alternative land
was made available to them by the state.166
In effect, the order required the state to lease the land so that the unlawful occupiers could remain there without continuing to
infringe Modderklip Boerdery’s property rights.167 The Court made this intrusive order without considering in any meaningful
way the substantial resource consequences that its decision would have for the state and the extent to which its order prescribes a
particular policy option to the state in preference to others. This robust approach, as was the case in Port Elizabeth Municipality,
was justified by the Court with reference to the conduct of the state, the landowner and the unlawful occupiers during the course
of the dispute.
The Court pointed out that the state still had no measures in place to deal with the plight of people such as the Modderfontein
occupiers despite the Court holding in Grootboom that it must introduce measures to take account of the needs of those in
housing crisis.168 The Court also highlighted the fact that the state had, despite various opportunities to do so, failed to attempt to
solve the dispute between the unlawful occupiers, the landowner and itself. The state had failed diligently to pursue a settlement
and had reneged on agreements reached.169 This was despite the fact that the state itself had caused the predicament of the
unlawful occupiers and the landowner by previously evicting the unlawful occupiers from state land without providing alternative
accommodation.170 As such, the state had made its own bed and now had to lie in it. The conduct of both the unlawful occupiers
and the landowner had, in contrast to the state’s, been exemplary. The landowner had at all times acted within the law and had
throughout sought to effect an amicable solution that would vindicate both his and the occupiers’ rights. 171 The unlawful
occupiers had occupied the land without intending to force the hand of the state to provide them with land in preference to others
and had also sought to reach an amicable solution both with the landowner and the state. 172
The duty to provide alternative accommodation on eviction has since been applied in a number of further eviction decisions
of the Constitutional Court. Significantly, in City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39
(Pty) Ltd and Another,173 the duty to provide alternative accommodation was in a limited fashion extended to apply also to
private property owners when they seek to evict and not only the state. The case dealt with a group of impoverished people who
occupied a disused factory building in downtown Johannesburg. A property developer bought the building in order to develop it.
At the time he bought the building he was aware of the presence of the occupiers. When the owner’s application for an eviction
order eventually landed before the Constitutional Court on appeal, the Court held that the owner could only evict the occupiers
once the City had made available alternative accommodation to them. Given that this would take some time, it meant that the
owner had to bear some measure of the burden of providing alternative accommodation in allowing the occupiers to remain until
alternative accommodation had been found. The Court summarised the position as follows:

To the extent that it is the owner of the property and the occupation is unlawful, Blue Moonlight is
entitled to an eviction order. All relevant circumstances must be taken into account though to

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 determine whether, under which conditions and by which date, eviction would be just and equitable.
The availability of alternative housing for the Occupiers is one of the circumstances.174

CRITICAL THINKING

Unintended consequences of Blue Moonlight

The effect of Blue Moonlight outlined above should not be overstated. Moreover, it must be noted that the
development of the duty to provide alternative accommodation as it was applied in Blue Moonlight could
have unintended and, it must be said, potentially perverse, consequences in particular with respect to
private property owners. Following Blue Moonlight, any private person interested in developing land or
buildings occupied unlawfully by impoverished people can buy the land or buildings for development in the
secure knowledge that the state would have to foot the bill for the relocation of the occupiers. In effect, the
state is required to subsidise private property development under such circumstances.
It is also unclear to what extent this decision may have a transformative impact on the law in general. It
does not seem to challenge the institution of private property as protected by common law property
regulation. This, it can be argued, is because the judgment does not take sufficient notice of its remarks in
Port Elizabeth Municipality where the Court argued that the Constitution required us:

… to move away from a static, typically private-law conceptualist view of the constitution as a
guarantee of the status quo to a dynamic, typically public-law view of the constitution as an
instrument for social change and transformation under the auspices [and I would add ‘and
control’] of entrenched constitutional values.175

16.7.1.4 The duty to refrain from impairing people’s access to socio-economic rights
The duty to respect socio-economic rights may also be violated if the state places obstacles in the way of people gaining access to
basic resources or in the way of people enhancing their existing access to such resources. The most obvious way in which the
state can fail in this duty is if it arbitrarily refuses to provide access to a basic resource that it has the capacity to provide. In
Soobramoney, for example, the Constitutional Court held that section 27(3) of the Constitution imposes a duty on the state not to
refuse access arbitrarily to emergency medical treatment where it exists. 176
Although they were dealt with as cases of infringements of the positive duty to fulfil the right of access to health care
services and to social assistance respectively, the judgments in Treatment Action Campaign (No 2) and Khosa are also examples
of the state breaching its duty to respect those rights by refusing to provide access to a resource it had the capacity to give. In
Treatment Action Campaign (No 2), the policy decision not to make Nevirapine available generally at public health facilities to
prevent mother-to-child transmission of HIV at birth was, in fact, a refusal by the state to provide essential health care to
pregnant, HIV-positive women and not only a failure by the state to extend health care provision to those women. Equally, in
Khosa, the provisions of the Social Assistance Act that excluded permanent residents and their children from access to social
assistance benefits were, in fact, a refusal by the state to provide these benefits to them. 177
Perhaps a less obvious way in which this element of the duty to respect can be breached by the state is where the state
impairs access to a basic resource through its administrative inefficiency. In Mashava v The President of the Republic of South
Africa and Others,178 for example, the Constitutional Court confirmed an order of the High Court that a presidential
proclamation 179 assigning the administration of the Social Assistance Act to provincial governments was invalid. Although the
validity of the proclamation was challenged on the grounds that the President was not competent to make the assignment, 180 the
case was motivated by the fact that the assignment resulted in the right of access to social assistance of persons eligible for social
assistance grants being impaired.
The plaintiff was an indigent disabled person who had applied for and been awarded a disability grant. However, for a period
of more than a year after his successful application, he did not receive the grant from the Limpopo Department of Health and
Welfare.181 It was clear that the failure to pay to the plaintiff was caused by the administrative incapacity of the provincial
Department of Health and Welfare. Also, the administration of the social welfare system in the province was woefully
under-resourced, due to ‘demands for the reallocation of social assistance monies to other [provincial] purposes’. 182 The plaintiff
contended that the Social Assistance Act (and the payment of his disability grant) could be administered more efficiently and on a
more equitable basis by the national government than by the provinces.
As a result, the assignment of the administration of the Social Assistance Act to the provinces constituted a negative

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 impairment of the right to have access to social assistance. In effect, therefore, the decision of the Constitutional Court
invalidating the assignment is a decision that the state must give effect to the duty to respect the right to have access to social
assistance by removing an impediment to its effective exercise.

16.7.2 The duty to protect

16.7.2.1 Introduction
The duty to protect socio-economic rights requires the state to protect the existing enjoyment of these rights, and the capacity of
people to enhance their enjoyment of these rights or newly to gain access to the enjoyment of these rights, against third-party
interference.

16.7.2.2 Legislative and executive measures

The state most obviously carries out the duty to protect socio-economic rights by regulating, through legislation or
executive/administrative conduct, those instances in which private entities control access to basic resources such as housing,
health care services, food, water and education. Such regulation could in the first place be aimed at opening up access to these
resources. The Rental Housing Act 183 is an example. The purpose of this law is primarily to create mechanisms to open access
to the rental housing market, including creating Rental Housing Tribunals to engage in dispute resolution in the rental housing
market.
The state can also protect access to socio-economic rights through standard setting in respect of safety and quality in the
provision of services and products. The Foodstuffs, Cosmetics and Disinfectants Act (FCDA) 184 is an example here. The
purpose of this Act is to regulate fungicide and pesticide residue and additive and preservative levels in food by setting minimum
and maximum standards and by creating mechanisms for the monitoring of these levels in foodstuffs.
Finally, the state can exercise its duty to protect socio-economic rights by regulating those instances in which private parties
can interfere in the existing enjoyment of socio-economic rights. The tenure security laws discussed above in the context of the
duty to respect socio-economic rights 185 provide an example. These laws also protect informal rights to land and housing
against private interference in the same way as they protect these rights against the state. They make eviction more difficult than
it would otherwise be through imposing additional procedural and substantive safeguards that have to be met before an eviction
order can be granted by a court.

16.7.2.3 Judicial measures

Courts can, in a number of important ways, also act so as to protect socio-economic rights. In the first place, courts can protect
socio-economic rights by adjudicating constitutional and other challenges to state measures that are intended to advance those
rights.186 In Minister of Public Works and Others v Kyalami Ridge Environmental Association and Others (Mukhwevho
Intervening),187 for example, a state decision to house destitute flood victims temporarily on the state-owned grounds of a prison
outside Johannesburg was challenged by surrounding property owners as a violation of their administrative justice rights. The
challenge was in part based on the argument that the decision was unlawful as the Minister of Public Works had no statutory
authority to take such a decision. The Court rejected this argument primarily because it held that the Minister had the requisite
power to take the decision by virtue of the state’s common law rights as property owner. 188 Also, the decision was taken in
furtherance of a constitutional duty to provide shelter to those in dire straits. 189 Through its decision, the Court effectively
protected the right to have access to adequate housing of the flood victims against private interference.
Courts can also protect socio-economic rights when they interpret legislation and develop the common law. As pointed out
above, courts are obliged to interpret legislation and develop the common law in such a way that the ‘spirit, purport and objects’
of the Bill of Rights are promoted.190 In other words, courts are required to infuse legislation and the common law with the value
system underlying the Constitution – to read the rights in the Bill of Rights and the values underlying them into the existing law.
The power to engage constitutionally with the existing law, particularly with respect to the common law is an extremely
important, but much neglected, way in which socio-economic rights can be advanced. In an economy based on private ownership,
the common law background rules governing obligations and property determine access to and distribution of basic resources. 191
The development of constitutional socio-economic rights so as to establish new and unique constitutionally based remedies
certainly is an important endeavour on its own. However, to explore the full transformative potential of socio-economic rights,
sustained critical engagement with these common law background rules is crucial.
Some of these common law background rules have of, course, been significantly adapted through legislation – the impact of
the different security of tenure laws on private property rights is a case in point. 192 However, courts retain an important

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 responsibility to extend the protection afforded socio-economic rights in the ordinary law through their powers of interpretation
of legislation and development of the common law.
Courts have readily engaged with legislation in attempts to broaden the protection of socio-economic rights. In Jaftha, for
example, the Constitutional Court considered provisions of the Magistrates’ Courts Act 193 that authorised under certain
circumstances, without proper judicial oversight, the sale in execution of the home of a debtor to satisfy a judgment debt. On the
basis of the section 26(1) right of everyone to have access to adequate housing, the Court adapted the Act through a combination
of interpretation and of reading in so that a judgment debtor’s home can only be sold in execution if a court has specifically
ordered so after considering all relevant circumstances.194 Jaftha was argued and decided on the basis of the negative duty to
respect the right to have access to adequate housing. 195 However, in effect, the Court’s order amounts to an instance of
interpretative law making through which the Court introduces into the Magistrates’ Courts Act a measure of protection for the
right to housing – the Court gave effect to its duty to protect that right.
Unfortunately, the courts have been far less active in engaging with the common law so as to enhance the protection of
socio-economic rights than they have been with respect to legislation.196 In those few cases where the courts have been asked to
develop the common law so as better to give effect to socio-economic rights, they have declined. In Afrox Healthcare, for
example, the SCA was invited to develop the common law of contract so that disclaimers in hospital admission contracts
indemnifying the hospitals against damages claims on the basis of the negligence of their staff would be seen as in conflict with
the public interest and consequently unenforceable. The argument was that such disclaimers had the effect that patients were not
adequately protected against unprofessional conduct at such hospitals and that they as such constituted an impairment of access to
health care services.197 This argument was rejected and the common law position remained intact. 198
One example of where courts were willing to develop the common law so as to protect socio-economic rights is the case of
Permanent Secretary Department of Welfare, Eastern Cape Provincial Government and Another v Ngxuza and Others .199
Ngxuza dealt with a class action claim brought in terms of section 38 of the Constitution by a number of social assistance grantees
for the reinstatement of disability grants that had unlawfully been terminated by the Eastern Cape Province. The respondents in
the case had been granted leave to proceed with such a class action claim by the court a quo. The province appealed against this
granting of leave to the SCA. The SCA, in the absence of any legislative form having been given to section 38’s provision for
class actions, proceeded to develop the common law of standing to make provision for such claims. Although the decision
certainly opens the door for class action claims, at least where any constitutional right is at play, it is centrally important for the
protection of socio-economic rights in particular. As Cameron JA (as he then was) states at the outset of the judgment, for the
Court: ‘The law is a scarce resource in South Africa. This case shows that justice is even harder to come by. It concerns the way
in which the poorest in our country are to be permitted access to both.’ 200

16.7.3 The duty to promote and fulfil

16.7.3.1 Introduction
The duty to fulfil socio-economic rights requires the state to ‘adopt appropriate legislative, administrative, budgetary, judicial,
promotional and other measures’ 201 so that access to basic resources is extended and enhanced. In sum, the state must act
affirmatively to realise the rights. The state breaches the duty to fulfil not when it invades the existing exercise of socio-economic
rights, but when it does not do enough or does not do the appropriate things fully to realise those rights. For courts to enforce the
duty to fulfil requires them directly to evaluate state policy and practice and to decide whether or not those policies and practices
are adequate measures to realise the socio-economic rights in question.
Courts are constrained in this evaluation by concerns about technical capacity and institutional legitimacy as well as by a
perceived absence of justiciable standards against which to assess state performance. To deal with these difficulties, the
Constitutional Court has used a traditional model of judicial review, but has given it new content. As with any breach of any other
right, when it is alleged that the duty to fulfil a socio-economic right has been breached and where prima facie such a breach is
established, the Court considers whether or not it can be justified. However, the Court has developed a special test or standard
against which to evaluate the justifiability of state measures to fulfil socio-economic rights that allows it, in different ways, to
mediate its concerns with capacity and legitimacy.
Which standard of scrutiny applies to breaches of the duty to fulfil socio-economic rights depends on which socio-economic
rights are at issue. If the duty to fulfil a basic socio-economic right is breached, for example children’s rights, rights of detainees
or the right to basic education, the section 36(1) proportionality standard applies. If the duty to fulfil a qualified socio-economic
right is breached, that breach can be justified only in terms of a special standard of scrutiny – the Court’s reasonableness standard
– developed on the basis of the internal limitation clause attached to these rights.
In determining whether the constitutional duties have been met, the context is all important. The duties on the state may
differ depending on the litigants and the broader context within which they find themselves. As the Constitutional Court pointed

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 out in the Grootboom judgment with reference to the right of access to adequate housing, ‘housing entails more than bricks and
mortar. It requires available land, appropriate services such as the provision of water and the removal of sewage and the financing
of all of these, including the building of the house itself’. 202 Moreover, it is not only the state which is responsible for the
provision of these rights. Other agents in our society, including individuals themselves, must be enabled by legislative and other
measures to provide housing. The state must create the conditions for access to the relevant right for people at all economic levels
of our society. State policy dealing with housing must therefore take account of different economic levels in our society. There is
a difference between the position of those who can afford to pay for housing, even if it is only basic although adequate housing,
and those who cannot. For those who can afford to pay for adequate housing, the state’s primary obligation lies in unlocking the
system, providing access to housing stock and a legislative framework to facilitate self-built houses through planning laws and
access to finance.203

PAUSE FOR REFLECTION

Applying the reasonableness standard of review to positive duties

The reasonableness standard of review also seems to apply when a positive duty to fulfil arises in terms of
section 27(3) of the Constitution, in other words where it is argued that emergency medical services have to
be established at an institution where they do not exist. This is because in Soobramoney, the
Constitutional Court intimated that should a positive duty be read into section 27(3), it would be subject to
the section 27(2) internal limitation.204

16.7.3.2 Reasonableness review

16.7.3.2.1 Introduction
At the heart of the Constitutional Court’s approach to the implementation of the duties imposed by social and economic rights –
especially those set out in sections 26 and 27 – is the requirement that the state must act reasonably in order to meet its
constitutional obligations. Although reasonableness could arguably also be applied when dealing with the duty to protect
discussed above, it finds its most direct application in cases of the duty to promote and fulfil and we will therefore discuss it
under this subheading. It is important to understand the factors that the courts take into account to determine whether the state has
indeed acted reasonably. Before we discuss these factors, we first set out the judicial framework within which such a
determination will be made. The Constitutional Court has described its reasonableness standard of scrutiny in five cases.
In Soobramoney, the Court refused to grant an order instructing Addington State Hospital to provide dialysis treatment to the
applicant. The grounds for this decision were that the guidelines according to which the hospital decided whether to provide the
treatment were not unreasonable 205 and were applied rationally and in good faith to the applicant. 206 This meant, the Court
held, that the Hospital’s decision did not breach the section 27(1) right of everyone to have access to health care services. 207
In Grootboom, the respondent applied for an order declaring the state’s housing programme to be unconstitutional on the
ground that it infringed section 26(1) which guarantees everyone the right of access to adequate housing. The Constitutional
Court granted the order. In arriving at its decision, the Court held that the state’s housing policy was unreasonable and thus
infringed section 26(1) because it did not include people who were homeless and who found themselves in a crisis situation. 208
In Treatment Action Campaign (No 2), the respondent applied for an order declaring the state’s mother-to-child transmission
(MTCT) of HIV at birth prevention programme to be unconstitutional on the ground that it infringed section 27(1) which
guarantees everyone the right of access to health services. The Constitutional Court granted the order. In arriving at this decision,
the Court held that the state’s MTCT of HIV at birth programme was unreasonable and thus infringed section 27(1) because it
was not implemented at all public health facilities, but only at a limited number of pilot sites. 209
In Khosa, the applicant applied for an order declaring sections of the Social Assistance Act, which excluded permanent
residents from access to social assistance grants, to be unconstitutional on the grounds that they infringed section 27(1)( c) which
guarantees the right of everyone to have access to social security. The Constitutional Court granted the order. In arriving at this
decision, the Court held that the relevant sections were unreasonable and thus infringed section 27(1)( c) because, first,
section 27(1)(c) refers to ‘everyone’ and not just to ‘citizens’; second, permanent residents have made South Africa their home;
and, third, extending social security grants to permanent residents would not impose an undue financial burden on the state.
In Mazibuko, the applicant applied for an order declaring the City of Johannesburg’s free water policy which provided each
household with 6 kilolitres of free water per month to be unconstitutional on the ground that it infringed section 27(1)( b) which

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 guarantees everyone the right of access to sufficient water. The Constitutional Court refused to grant the order. In arriving at this
decision, the Court held that the City’s policy was reasonable because, first, the majority of households in Johannesburg consisted
of four occupants or less; second, 6 kilolitres of free water per household per month was more than adequate for such households;
and, third, larger households could apply to the City for an additional 4 kilolitres per month.
Although the Constitutional Court has not been explicit about this, it is clear from these cases that the reasonableness
standard is a shifting standard of scrutiny. In Soobramoney, the Court applied a basic rationality and good faith test. 210 In
Grootboom and Treatment Action Campaign (No 2), the Court applied a more stringent means-end effectiveness test. In Khosa,
the Court applied a yet stricter proportionality test. In Mazibuko, however, the Court retreated from the proportionality test it had
adopted in Khosa and followed a much more deferential and process based approach.
Unfortunately, the Constitutional Court has not been explicit about which factors determine the strictness of its scrutiny, 211
but the cases indicate that the following factors play a role:
• the position of the claimants in society 212
• the degree of deprivation they complain of and the extent to which the breach of the right in question affects their dignity 213
• the extent to which the breach in question involves undetermined, complex policy questions 214
• whether or not the breach also amounts to a breach of other rights 215
• the administrative and practical difficulties the provision of the goods and services in question give rise to 216
• the extent to which the state has continuously reviewed and refined its policies and programmes to ensure that it meets the
needs of the poor 217
• the seriousness with which the state has approached its obligation and the extent to which it accepts that it is obliged to take
reasonable steps to fulfil the right in question.218

16.7.3.2.2 A means-end effectiveness test

The Constitutional Court derives its reasonableness standard from the state’s duty to take reasonable legislative and other
measures, within its available resources, to achieve the progressive realisation of socio-economic rights. In describing this duty,
the Court has described the standards against which to evaluate the state’s measures. The Court has presented its reasonableness
test as a means-end effectiveness test. In Grootboom, the Court indicated that the state’s measures are evaluated to determine
whether they are ‘capable of facilitating the realisation of the right’. 219 The Court has been at pains in all its judgments so far to
emphasise that it does not test relative effectiveness, that it ‘will not enquire whether other more desirable or favourable measures
could have been adopted, or whether public money could have been better spent’, but will leave the ‘precise contours and content
of the measures to be adopted [to render a programme reasonable] … [to] the legislature and the executive’. 220
The Constitutional Court quite obviously adopts this distinction between testing effectiveness and testing relative
effectiveness to mediate its concern with its institutional capacity and legitimacy and to manage its relationship with the
executive and the legislature. However, the distinction is in many cases a fiction. This fiction is useful as it allows the Court to
enforce rights without it having to admit to prescribing directly to the state. As such, it helps the Court avoid direct confrontation
with the political branches.221
In Grootboom, the Court was clearly able to maintain the fiction. The policy issue in question – how best to provide for the
needs of the ‘absolutely homeless’ – allowed for a wide variety of different possible solutions. The Court could thus simply
declare that the housing programme was inconsistent with the Constitution to the extent that it made no provision for the
‘absolutely homeless’ and leave the choice of a specific solution to the state.
By contrast, in Treatment Action Campaign (No 2), and particularly in Khosa, the specificity of the policy issue that the
Court evaluated was such that it did not allow this scope. The Constitutional Court found in Treatment Action Campaign (No 2)
that the state’s restriction of the provision of Nevirapine to the designated pilot sites breached section 27(1). This finding
ineluctably led to the state having to provide Nevirapine elsewhere despite its unwillingness to do so. 222 By the same token, in
Khosa, the Court’s finding of unreasonableness left no option but that permanent residents should be included in the social
assistance scheme. Indeed, the Court itself read words to this effect into the Social Assistance Act. 223
The Court’s desire to avoid direct confrontation with the political branches is clearly illustrated in Mazibuko where the Court
downplayed the effect of its decisions in Grootboom and Treatment Action Campaign (No 2) and emphasised the fact that it
respects the policy-making functions of the other two branches of government.

The orders made in these two cases illustrate the Court’s institutional respect for the policy-making
functions of the two other arms of government. The Court did not seek to draft policy or to determine
its content. Instead, having found that the policy adopted by the government did not meet the required

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 constitutional standard of reasonableness, the Court, in Grootboom, required government to revise its
policy to provide for those most in need and, in Treatment Action Campaign (No 2), to remove
anomalous restrictions.

The Constitution envisages that legislative and other measures will be the primary instrument for the
achievement of social and economic rights. Thus it places a positive obligation upon the State to
respond to the basic social and economic needs of the people by adopting reasonable legislative and
other measures. By adopting such measures, the rights set out in the Constitution acquire content, and
that content is subject to the constitutional standard of reasonableness.224

16.7.3.3 The elements of reasonableness review

16.7.3.3.1 Introduction
The Constitutional Court’s reasonableness standard requires first that the state indeed act to give effect to socio-economic rights,
and then requires that what the state does meets a standard of reasonableness. In addition, the state is also required to review
continuously its plans and policies.

PAUSE FOR REFLECTION

The elements of the reasonableness standard

The different elements that make up the Constitutional Court’s reasonableness standard were summarised
by O’Regan J in her judgment in Mazibuko. In her judgment, O’Regan J stated that:

the positive obligations imposed upon government by the social and economic rights in our
Constitution will be enforced by courts in at least the following ways. If government takes no
steps to realise the rights, the courts will require government to take steps. If government’s
adopted measures are unreasonable, the courts will similarly require that they be reviewed so as
to meet the constitutional standard of reasonableness. From Grootboom, it is clear that a
measure will be unreasonable if it makes no provision for those most desperately in need. If
government adopts a policy with unreasonable limitations or exclusions, as in Treatment Action
Campaign No 2, the Court may order that those are removed. Finally, the obligation of
progressive realisation imposes a duty on government continually to review its policies to
ensure that the achievement of the right is progressively realised.225

16.7.3.3.2 The state must have a plan

The Court’s standard requires first that the state must devise and implement measures to realise socio-economic rights – it cannot
do nothing.226 Although these measures need to realise the rights only progressively – the need for full realisation is deferred
227 – the state must have measures in place to realise these rights and must implement them. In addition, the state must show
progress in implementing these measures and must be able to explain lack of progress or retrogression. In particular, any
deliberate retrogression would be a prima facie breach that would require convincing justification.228

16.7.3.3.3 The plan must be reasonable

Those measures that the state does adopt must be reasonably capable of achieving the realisation of the right in question. 229 To
be judged as reasonable in this sense, the state’s measures must meet at least the following basic standards:
The measures must be comprehensive and co-ordinated.230 This means that the state’s programme with respect to a right
must not only address ‘critical issues and measures in regard to all aspects’ of the realisation of that right,231 but must also be
coherent so that responsibilities are clearly allocated to different spheres and institutions within government.
In Grootboom, for example, the Constitutional Court held that even though the state had adopted a programme to provide
access to housing, it had done nothing with respect to a critical aspect of the right to housing – it had no measures in place with
which to provide shelter to people with no roof over their heads. As such, its housing programme was not comprehensive. 232

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 To ensure that state measures are comprehensive and co-ordinated, the Committee on ESCR has suggested that states must
adopt national strategies or plans of action,233 which may or may not be presented in national framework laws, through which to
give effect to particular socio-economic rights.234 The Constitutional Court’s references in Grootboom to the need for a ‘national
framework’ with respect to housing provision, embodied in ‘framework legislation’ 235 and to the need for a ‘coherent public
housing programme’ 236 seem to endorse this suggestion by the Committee.237
Financial and human resources to implement measures must be made available. In Grootboom, the Court stated that for
a programme to be reasonable, ‘appropriate financial and human resources [must be] available’. 238 The Court has as yet not
elaborated on this tantalising phrase. It is clear that the Court is loath to prescribe to the state how and on what it must spend its
money and to tell it that it must expend resources so as to do something it did not plan to do and does not want to do. 239
However, this phrase does seem to indicate that the Court will not allow the state to adopt mere token measures. Where the state
has itself decided and so undertaken to do something, it is under a legal duty, which the Court would be able to enforce, to
allocate the resources reasonably necessary to execute its plans.
In Kutumela, for example, the plaintiffs had applied for the Social Relief of Distress Grant, but despite clearly qualifying for
it, did not receive it. Their complaint was that although in terms of the Social Assistance Act and its regulations, provincial
governments were required to provide the grant to qualifying individuals on successful application, the North West Province had
not dedicated the necessary human, institutional and financial resources to do so. The grant was consequently available on paper
only and not in practice. The case resulted in a settlement order that in essence required the province to dedicate the necessary
human, institutional and financial resources to provide the grant. Specifically, it required the province to acknowledge its legal
responsibility to provide Social Relief of Distress Grants effectively to those eligible for it and then to devise a programme to
ensure its effective provision. This programme must enable it to process applications for Social Relief of Distress Grants on the
same day on which they are received, must enable its officials appropriately to assess and evaluate such applications and must
enable the eventual payment of the grant. Importantly, the province was ordered to put in place the necessary infrastructure for
the administration and payment of the grant, inter alia, by training officials in the province in welfare administration.240
The state’s measures must be both reasonably conceived and reasonably implemented.241 This element is closely
related to the requirement of reasonable resourcing outlined above and means that it is not sufficient for the state merely to adopt
measures on paper. These measures must also in fact be implemented effectively. The Kutumela case, described above in the
context of adequate resourcing, also illustrates this element of the Court’s reasonableness standard. In effect, the Court in
Kutumela ordered the provincial government to implement a measure that existed in concept but not in practice.
The state’s measures must be ‘balanced and flexible’, capable of responding to intermittent crises and to short-,
medium- and long-term needs,242 may not exclude ‘a significant segment of society’,243 may not ‘leave out of account the
degree and extent of the denial’ of the right in question and must respond to the extreme levels of deprivation of people in
desperate situations.244 These related requirements of flexibility and ‘reasonable inclusion’ 245 formed the basis for the
Constitutional Court’s decisions in both Grootboom and Treatment Action Campaign (No 2). In Grootboom, the Court found that
the state’s housing programme was inconsistent with sections 26(1) and (2) because it ‘failed to recognise that the state must
provide relief for those in desperate need’.246 In Treatment Action Campaign (No 2), the Court held that the state’s measures to
prevent MTCT of HIV were inconsistent with the Constitution because they ‘failed to address the needs of mothers and their
newborn children who do not have access’ 247 to the pilot sites where Nevirapine was provided and because the programme as a
whole was ‘inflexible’.248
In one sense, these different requirements all relate to the idea that the state’s programmes must be comprehensive. Any
state programme designed to fulfil a socio-economic right will be incomplete and, as such, unreasonable unless it includes
measures through which short-term crises in accessing the right can be addressed as well as measures that ‘provide relief for
those in desperate need’.249 These requirements relate to flexibility and reasonable inclusion, and particularly the Constitutional
Court’s phrase in Grootboom that a programme must take account of the degree and the extent of deprivation with respect to a
right.250 However, the intriguing question raised by these requirements is whether the Court’s reasonableness test in this respect
requires state measures to prioritise efforts, both with respect to temporal order and resource allocation, according to different
degrees of need. Does the test require the state to engage in ‘sensible priority-setting, with particular attention to the plight of
those in greatest need’? 251
Roux has made a strong argument that it does not. He points out that the Court’s finding in Grootboom requires ‘merely
inclusion’ and that ‘a government programme that is subject to socio-economic rights will [in terms of this finding] be
unreasonable if it fails to cater to a significant segment of society’.252 With respect to the finding in Grootboom, Roux’s reading
is correct. The Court there clearly simply required the state to take account of the needs of those most desperate without at the
same time suggesting that the needs of such people should in any concrete way take precedence over other needs. 253 However, it
has been suggested that the Court’s reasonableness test can take account of a prioritisation according to need by varying the

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 standard of scrutiny that it applies to particular alleged breaches of socio-economic rights according to the degree of
deprivation suffered by those affected by the breach.254 According to this view, a court would scrutinise state measures more
rigorously where those complaining of their impact are desperately deprived.
This idea has recently been given credence in Khosa. As pointed out above, the Court in Khosa, possibly for a variety of
reasons, applied a substantially stricter standard of scrutiny to the state’s exclusion of permanent residents than it applied to the
state’s HIV prevention policy in Treatment Action Campaign (No 2) or the state’s housing programme in Grootboom. The Court
in Khosa applied a proportionality test, weighing the impact that the exclusion had on the dignity and practical circumstances of
indigent permanent residents against the purposes for which the state had introduced the exclusion. The Court did not only find
that the basic survival interests of the excluded permanent residents should take precedence over the legitimate purposes for their
exclusion.255 It also by implication held that the basic survival needs of the permanent residents should take precedence over
further expansion of the social assistance system as it applies to South African citizens. This was illustrated by the rejection of the
state’s arguments that to include permanent residents in the social assistance scheme would place an undue financial burden on
the state and would potentially require the diversion of resources from other social assistance needs. 256 The most important
factor determining the Court’s robust scrutiny in this respect was ‘the severe impact [that the exclusion of permanent residents
from the scheme was likely to have] on the dignity of the persons concerned, who, unable to sustain themselves, have to turn to
others to enable them to meet the necessities of life and are thus cast in the role of supplicants’. 257
The state’s measures must be transparent in the sense that they must be made known both during their conception
and once conceived to all affected.258 This final element of the Court’s reasonableness test was added in Treatment Action
Campaign (No 2) where the Court held that for a programme to be reasonable, its ‘contents must be made known appropriately’.
259 As Treatment Action Campaign (No 2) itself illustrated, litigants in socio-economic rights cases face great difficulties if it is
not possible to ascertain with certainty what the state’s measures entail. In a basic sense, to be able to challenge the state’s
position, a litigant has to be able to pinpoint what exactly it is. In this respect, the requirement of transparency is practically very
important.260

PAUSE FOR REFLECTION

Viewing socio-economic rights jurisprudence through the prism of equality

The Constitutional Court’s focus on the relative deprivation of the group suffering from the breach – in other
words, its insistence on taking account of whether those excluded are vulnerable and in particular need of
state intervention to affirm their human dignity – arguably echoes the Court’s approach to section 9 of the
Constitution. Recall that the Court has stated that in deciding whether there was unfair discrimination in
terms of section 9(3) of the Constitution, the Court will have regard to the position of the complainant in
society and will ask whether he or she belongs to a group which was previously discriminated against or is
still vulnerable. Similarly, when the Court has to decide whether the state has acted reasonably, it will have
regard to the vulnerability of the group which is being excluded or is not gaining access to the social and
economic benefit to the same degree as others who are less vulnerable. It has therefore been argued that
one way of understanding the social and economic rights jurisprudence of the Constitutional Court is to
view it through the prism of equality.261 If viewed thus, the reasonableness requirement can look much like
the requirement for contextual fairness which is at the heart of the equality jurisprudence of the
Constitutional Court.

16.7.3.3.4 The state must continually review its plan

In Mazibuko, the Constitutional Court held that apart from showing that the plan adopted by the state is reasonable, the concept of
progressive realisation also imposes an obligation on the state to review and revise continuously its plan to ensure that social and
economic rights are progressively achieved.262 A plan that is set is stone and never revisited, the Constitutional Court held
further, is unlikely to be a plan that will result in the progressive realisation of rights consistently with the obligations imposed by
the social and economic rights in the Constitution.

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 16.7.3.4 Meaningful engagement
When a state entity implements social and economic rights, it is required to treat affected individuals and groups with dignity. An
excessively technocratic approach that does not take into account the needs and wishes of those affected might not be reasonable.
The Constitutional Court therefore developed the notion of meaningful engagement in Occupiers of 51 Olivia Road, Berea
Township and 197 Main Street Johannesburg v City of Johannesburg and Others.263
Although this case dealt with the potential eviction of a large group of individuals from the inner city of Johannesburg, the
principle of reasonable accommodation could also be applied to other situations in which the state acts to upgrade services to give
effects to the realisation of social and economic rights. This insight stems from the Constitutional Court’s remarks in Grootboom
on the relationship between reasonable state action and the need to treat human beings with the appropriate respect and care for
their dignity. In Grootboom the Court remarked:

All levels of government must ensure that the housing program is reasonably and appropriately
implemented in the light of all the provisions in the Constitution. All implementation mechanisms and
all State action in relation to housing falls to be assessed against the requirements of s 26 of the
Constitution. Every step at every level of government must be consistent with the constitutional
obligation to take reasonable measures to provide adequate housing … The proposition that rights are
interrelated and are all equally important is not merely a theoretical postulate. The concept has
immense human and practical significance in a society founded on human dignity, equality and
freedom. It is fundamental to an evaluation of the reasonableness of State action that account be taken
of the inherent dignity of human beings. The Constitution will be worth infinitely less than its paper if
the reasonableness of State action concerned with housing is determined without regard to the
fundamental constitutional value of human dignity.264

In the context of evictions in Occupiers of 51 Olivia Road, the probability arose that people would become homeless as a direct
result of their eviction at the state’s instance. In these circumstances, those involved in the management of the municipality ought
at the very least to have engaged meaningfully with the occupiers both individually and collectively. 265 The Court explained that
such an engagement was ‘a two-way process’ in which all parties needed to engage meaningfully with one another. 266 There is
no closed list of the objectives of engagement. However, the Court listed some of the objectives of engagement in cases of
pending eviction:

(a) what the consequences of the eviction might be;

(b) whether the city could help in alleviating those dire consequences;
(c) whether it was possible to render the buildings concerned relatively safe and conducive to health
for an interim period;
(d) whether the city had any obligations to the occupiers in the prevailing circumstances; and
(e) when and how the city could or would fulfil these obligations. 267

In the case of a pending eviction the authority who wishes to effect the eviction ‘must make reasonable efforts to engage’ before
it can effect such an eviction.268 The engagement process should preferably be managed by careful and sensitive people on the
side of the municipality.269 This forms part of the general obligation on the state body to act reasonably. In Grootboom, the
Court remarked that ‘[e]very step at every level of government must be consistent with the constitutional obligation to take
reasonable measures to provide adequate housing’.270 As the Court stated in Occupiers of 51 Olivia Road:

It may in some circumstances be reasonable to make permanent housing available and, in others, to
provide no housing at all. The possibilities between these extremes are almost endless. It must not be
forgotten that the City cannot be expected to make provision for housing beyond the extent to which
available resources allow. As long as the response of the municipality in the engagement process is
reasonable, that response complies with section 26(2). The Constitution therefore obliges every
municipality to engage meaningfully with people who would become homeless because it evicts them. It
also follows that, where a municipality is the applicant in eviction proceedings that could result in
homelessness, a circumstance that a court must take into account to comply with section 26(3) of the
Constitution is whether there has been meaningful engagement.271

However, the process of engagement will work only if both sides act reasonably and in good faith. Civil society organisations that
support the peoples’ claims should preferably facilitate the engagement process in every possible way. 272 An important

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 prerequisite for meaningful engagement is openness and transparency on the side of the state institution as secrecy is
counterproductive to the process of engagement.273

16.7.3.5 Within available resources

The state’s duty to fulfil socio-economic rights must be exercised ‘within its available resources’. 274 Liebenberg points out that
this phrase both provides an excuse and imposes a duty on the state. 275 It allows the state to attribute its failure to realise a
socio-economic right to budgetary constraints and it requires the state in fact to make resources available with which to realise a
right.276
The Constitutional Court has been circumspect in scrutinising budgetary issues. In some cases it has avoided them altogether.
In Soobramoney, the Court simply accepted the state’s contention that resources were limited as a given and allowed that fact to
determine its decision. The Court interrogated neither the allocation for health purposes from national government nor in any
rigorous way the manner in which it was used at provincial level. 277 In Grootboom, resource constraints were not a direct issue.
Equally, in Treatment Action Campaign (No 2) with respect to the question whether the provision of Nevirapine should be
extended to public health facilities where the necessary counselling and monitoring infrastructure already existed, the question of
the availability of resources was obviated. The manufacturers of Nevirapine had undertaken to provide it for free for five years
and no additional infrastructural spending was required to proceed with the extension to such facilities. 278
In those instances where budgetary issues could not be avoided, the Court has required the state to persuade it of its financial
constraints.279 It has then proceeded to scrutinise the state’s assertions in this respect but on its own terms – that is, taking the
limits of the existing budget allocations as a given. The Court has not scrutinised initial budgetary decisions at macroeconomic
level.
In Treatment Action Campaign (No 2) with respect to the extension of the programme to prevent MTCT of HIV to facilities
without the necessary counselling and monitoring infrastructure, the state indeed objected that it did not have the requisite
resources. The Court engaged with and rejected this argument. First, since the litigation between the Treatment Action Campaign
and the state had commenced, some provincial governments had proceeded with the extension of the provision of Nevirapine to
facilities other than the pilot sites despite the asserted resource constraints. 280 This demonstrated to the Court that in fact ‘the
requisite political will’, rather than resources, was lacking.281 In addition, while the case was being heard, the state announced
that significant additional resources had been allocated to deal with the HIV pandemic. 282 The Court could therefore find that
whatever resource constraints had existed previously, existed no longer.283
In Khosa, the state also objected that it would not have the resources with which to extend social assistance grants to indigent
permanent residents.284 Again, the Court considered and rejected this argument.285 It could do so first because the state had not
provided ‘clear evidence to show what the additional cost of providing social grants to … permanent residents would be’. 286 As
a result, the Court could not assess whether the additional cost would place an untenable burden on the state. 287 In addition, the
state provided the Court with evidence of current spending on and projected increases in spending on social assistance. 288 This
enabled the Court to point out that even at the most pessimistic estimate of the additional cost occasioned by an extension of
social assistance to permanent residents,289 the additional burden on the state would in relative terms be very small. 290
The Court’s approach to scrutinising budgetary issues and to the consequences of that scrutiny is perhaps best captured in a
remark from Treatment Action Campaign (No 2). The Court indicated that its scrutiny is not in itself ‘directed at rearranging
budgets’, but that its scrutiny ‘may in fact have budgetary implications’.291 This remark seems clearly to indicate that the Court
will neither directly interrogate nor prescribe the state’s initial allocational decisions at macroeconomic level. At the same time, it
will not be discouraged from interrogating the reasonableness of state measures according to the standard described above even if
a finding of unreasonableness would have the consequence that the state would itself have to rearrange its budget. 292
This distinction between the Court itself rearranging budgets and taking decisions that have the consequence that the state
must rearrange budgets is of course at least sometimes a fiction – as with the distinction between effectiveness and relative
effectiveness discussed above. The effect of the decision in Khosa, although the Court does not present itself as ‘rearranging
budgets’, is that the state has to allocate additional resources (however slight an amount in relative terms) to an item that it did not
want to finance. However, as Roux argues, this is perhaps a useful fiction as it has the singular virtue of allowing the Court to
interfere in allocational choices to the extent required to enforce a right without directly admitting to it. As such, it avoids direct
confrontation with the executive.293
More recently, in Blue Moonlight Properties, the City of Johannesburg objected on appeal to the Constitutional Court against
a decision of the SCA that it should find the resources to provide temporary alternative housing for people evicted from their
homes by private property owners despite the fact that it had not budgeted for this. The City argued that it could not during the

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 course of any given financial year reallocate resources for emergency use to provide such alternative accommodation if this had
not been budgeted for. Such expenditure, they continued, would be unlawful. The Constitutional Court responded simply by
holding that the City could not avoid its constitutional responsibilities only by asserting that it had not budgeted for that purpose.
If it had not done so, it had to find the money, in effect, somewhere. 294

16.8 Remedies in socio-economic rights cases

In constitutional matters, including matters dealing with socio-economic rights, courts have wide remedial powers. We have
already discussed the various remedies that courts can grant to vindicate rights in chapter 11. However, the specific nature of the
duties imposed by social and economic rights raises additional questions about the nature of the remedies granted by a court in
cases dealing with a breach of these rights. We therefore highlight issues relating to the specific vindication of social and
economic rights in this subsection. However, this subsection must be read in conjunction with the discussion in chapter 11.
Section 38 of the Constitution determines that courts must in such matters provide ‘appropriate relief, including a declaration of
rights’, while section 172 empowers courts to declare invalid law or conduct inconsistent with the Constitution and, in addition,
to provide any order that is ‘just and equitable’.295 The Constitutional Court has been clear that these powers allow it to fashion
new remedies where necessary to ‘protect and enforce the Constitution’. 296 An important consideration for the Court in this
respect is that the remedies it provides, whether new or existing, must be effective. 297
In most of the kinds of socio-economic rights cases described above, providing ‘appropriate relief’ is unproblematic. It
requires courts to do little else than they are used to doing in cases decided on the basis of other rights or indeed cases decided on
the basis of the common law or ordinary legislation. However, when courts are required to provide relief in cases where the state
has breached the duty to fulfil socio-economic rights, or where the state has interfered in the existing exercise of a
socio-economic right and is under a duty to mitigate the impact of that interference, their position is often more difficult. In these
cases, the Court’s finding requires the state to act affirmatively in order to remedy its breach of the right, to amend its policy or
adopt a new policy, or to provide a service that it is not currently providing or to extend a service to people who do not currently
qualify for it. Such cases necessarily involve ‘amorphous, sprawling party structures, allegations broadly implicating the
operations of large public institutions such as schools systems … mental health facilities … and public housing authorities, and
remedies requiring long term restructuring and monitoring of these institutions’, policies and programmes. 298 Courts are
consequently faced with having to decide to what extent to prescribe directly to the state what it must do, and to what extent and
in what manner to retain control of the implementation of their orders, to see that indeed they will be effective.
An obvious way for courts to retain control of the implementation of their orders is through so-called structural or
supervisory interdicts.299 These orders would usually require the state to draft a plan for its implementation of the order, which
could then be submitted to the court and the other party for approval, and then periodically to report back to the court and the
other party with respect to its implementation of that plan. The court could manage the supervision on its own, through the other
party to the litigation or through a court-appointed supervisor.300
In the two cases where such a supervisory interdict could perhaps have played a role, the Constitutional Court has elected not
to use it. In Grootboom, the Court issued a simple declaratory order, leaving the remedy of the constitutional defect in its housing
programme entirely to the state.301 In Treatment Action Campaign (No 2), the Court similarly issued a declarator coupled with a
mandatory order requiring the state to remedy the constitutional defect in its programme for prevention of MTCT of HIV. 302
However, despite confirming that it did indeed have the power to do so, the Court again declined to issue a supervisory interdict,
holding that there was no indication that the state would not implement its order properly. 303
Although the Court’s failure particularly in Grootboom to use a supervisory interdict certainly trenched on the effectiveness
of its order,304 it is understandable that the Court is circumspect in its use of these remedies. Structural interdicts have to be very
carefully crafted to be effective.305 More importantly, structural interdicts have the potential to erode the legitimacy of the Court,
both because they directly and on an ongoing basis place the Court in confrontation with the executive, and because they can
involve the Court in the day-to-day management of public institutions, something at which it is almost bound to fail. 306 Whether
or not a structural interdict will be appropriate in a given case will depend on the nature of the breach in question and particularly
on the nature of the remedy of that breach.307

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 SUMMARY

Social and economic or socio-economic rights are often distinguished from civil and political rights on the basis that they
engender different types of duties. However, although there may be qualitative differences in the nature of the duties imposed by
socio-economic rights, in principle there is little difference between these rights and civil and political rights. Both types of rights
impose so-called negative and positive duties on the state. Negative duties require the state to refrain from infringing existing
rights while positive duties require the state to take positive steps to ensure the enjoyment of the rights.
Socio-economic rights sometimes raise questions about the role of the court in enforcing human rights in the light of the
separation of powers doctrine. For reasons relating to pragmatic concerns, courts are therefore often more willing to enforce
socio-economic rights in a robust fashion when these rights are given effect to by ordinary legislation or when the court is merely
asked to enforce existing policy decisions taken by the executive. Courts also seem to be more willing to enforce socio-economic
rights if the infringement is of a negative nature than when it requires positive action from the state to adhere to the duties
imposed by these rights.
At the heart of the positive obligations of the state to realise socio-economic rights is the requirement to act reasonably. To be
reasonable, the state’s measures must be balanced and flexible, capable of responding to intermittent crises and to short-,
medium- and long-term needs, may not exclude a significant segment of society, may not leave out of account the degree and
extent of the denial of the right in question and must respond to the extreme levels of deprivation of people in desperate
situations. The measures also need to be comprehensive and co-ordinated. An important factor taken into account by the courts is
the degree of deprivation suffered by those affected by the breach. The process through which the state body chooses to
implement its obligations is important as this also needs to be reasonable. To this end, the state may well have to engage
meaningfully with affected individuals and groups to deal with any possible negative consequences of its actions and to ensure
that it treats individuals with the requisite human dignity.308

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 1 Soobramoney v Minister of Health (Kwazulu-Natal) (CCT32/97) [1997] ZACC 17; 1998 (1) SA 765 (CC); 1997 (12) BCLR 1696 (27 November 1997)
para 8.
2 See Soobramoney.
3 See Khosa and Others v Minister of Social Development and Others, Mahlaule and Another v Minister of Social Development (CCT 13/03, CCT 12/03)
[2004] ZACC 11; 2004 (6) SA 505 (CC); 2004 (6) BCLR 569 (CC) (4 March 2004).
4 S 34(1)(a) of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA) lists socio-economic status as one of a number
of grounds that must be considered by the Equality Review Committee established in terms of s 32 of the Act for future inclusion in the list of prohibited
grounds. The special consideration accorded socio-economic status in s 34 indicates that, at the very least, socio-economic status will be regarded, for
purposes of the PEPUDA, as a ground analogous to the listed grounds. This seems to indicate that the legislature regards it for constitutional purposes
also to be a ground analogous to those listed in s 9(3) of the Constitution. See, in general, De Vos, P (2004) The Promotion of Equality and Prevention of
Unfair Discrimination Act and socio-economic rights ESR Review: Economic and Social Rights in South Africa 5(2):7–11.
5 (CCT32/97) [1997] ZACC 17; 1998 (1) SA 765 (CC); 1997 (12) BCLR 1696 (27 November 1997).
6 Soobramoney para 4.
7 Soobramoney para 19. For a discussion of the space this leaves for advancing claims for material conditions for welfare through the right to life, see
Pieterse, M (1999) A different shade of red: Socio-economic dimensions of the right to life in South Africa South African Journal on Human Rights
15(3):372–85 at 384. Mr Soobramoney died a few days after this judgment was handed down.
8 See De Villiers, N (2002) Social grants and the Promotion of Administrative Justice Act South African Journal on Human Rights 18(3):320–49 at 320;
Van der Walt AJ (2002b) Sosiale geregtigheid, prosedurele billikheid, en eiendom: Alternatiewe perspektiewe op grondwetlike waarborge (Deel Een)
Stellenbosch Law Review 13(5):59–82 at 59; Van der Walt, AJ ‘A South African reading of Frank Michelman’s theory of social justice’ in Botha, H, Van
der Walt, AJ and Van der Walt, JC (2003) Rights and Democracy in a Transformative Constitution 172–4, 187–9.
9 (CCT 43/09) [2009] ZACC 30; 2010 (3) BCLR 212 (CC); 2010 (4) SA 55 (CC) (9 October 2009).
10 Act 32 of 2000.
11 Joseph para 38.
12 Joseph para 39.
13 The realisation that rights impose such different kinds of duties is usually attributed to Henry Shue (Shue, H (1980) Basic Rights: Subsistence, Affluence
and US Foreign Policy). His typology is widely adopted in international law circles. See Van Hoof, GJH (1984) ‘The legal nature of economic, social and
cultural rights: A rebuttal of some traditional views’ in Alston, P and Tomasevski, K (eds) The Right to Food (1984) 97, 99; Group of Experts on Limburg
Principles (1998) The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights Human Rights Quarterly 20(3):691–704 para 6;
Committee on ESCR General Comment No 12 The right to adequate food (art 11 of the Covenant) UN Doc E/2000/22 para 15; General Comment No 14
The right to the highest attainable standard of health (art 12 of the Covenant) UN Doc E/C 12/2000/4 paras 33–7; General Comment No 15 The right to
water (arts 11 and 12 of the Covenant) UN Doc E/C 12/2002/11 paras 20–9.
14 See Certification of the Constitution of the Republic of South Africa, 1996 (CCT 23/96) [1996] ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253
(CC) (6 September 1996) para 78 where the Constitutional Court stated: ‘At the very minimum, socio-economic rights can be negatively protected from
improper invasion.’ See generally De Vos, P (1997) Pious wishes or directly enforceable human rights: Social and economic rights in South Africa’s 1996
Constitution South African Journal on Human Rights 13(1):67–101 at 79–83; Liebenberg, S (2010) Socio-Economic Rights: Adjudication Under a
Transformative Constitution 82–7.
15 De Vos (1997) 83–6.
16 For example, De Vos conflates these two duties in his discussion of s 7(2). See De Vos (1997) 86–91.
17 Liebenberg, S ‘The interpretation of socio-economic rights’ in Woolman, S and Bishop, M (eds) (2013) Constitutional Law of South Africa 2nd ed rev
service 5 33.1–33.66.
18 Budlender, G ‘Justiciability of socio-economic rights: Some South African experiences’ in Ghai, Y and Cottrell, J (eds) (2004) Economic, Social and
Cultural Rights Cultural Rights in Practice: The Role of Judges in Implementing Economic, Social and Cultural Rights Commonwealth Secretariat 37.
19 See De Vos (1997) 86. See also Government of the Republic of South Africa and Others v Grootboom and Others (CCT11/00) [2000] ZACC 19; 2001 (1)
SA 46; 2000 (11) BCLR 1169 (4 October 2000) paras 35–6.
20 Committee on ESCR General Comment No 14 The right to the highest attainable standard of health (art 12 of the Covenant) UN Doc E/C 12/2000/4
para 33.
21 See Jaftha v Schoeman and Others, Van Rooyen v Stoltz and Others (CCT74/03) [2004] ZACC 25; 2005 (2) SA 140 (CC); 2005 (1) BCLR 78 (CC)
(8 October 2004) paras 31–4 where the Constitutional Court discusses the distinction between the negative duty to respect the right to have access to
adequate housing and the positive duty to fulfil it. See also Grootboom para 34.
22 See, for example, the following remarks of the Constitutional Court in the First Certification judgment para 78:
The objectors argued further that socio-economic rights are not justiciable, in particular because of the budgetary issues their enforcement may
raise. The fact that socio-economic rights will almost inevitably give rise to such implications does not seem to us to be a bar to their justiciability.
At the very minimum, socio-economic rights can be negatively protected from improper invasion.
23 (CCT8/02) [2002] ZACC 15; 2002 (5) SA 721; 2002 (10) BCLR 1033 (5 July 2002).
24 Liebenberg (2013) 33.19. By the same token, the provisions of the Social Assistance Act 59 of 1992 that were challenged in Khosa could be described as
either negative or positive infringements of the right to have access to social assistance.
25 With respect to the blurring of the distinction between positive and negative constitutional duties, see in general Bandes, S (1990) The negative
constitution: A critique Michigan Law Review 88(8):2271–347.
26 (CCT8/99) [1999] ZACC 3; 1999 (3) SA 1; 1999 (4) BCLR 363 (1 April 1999) para 16. See also Minister of Home Affairs v National Institute for Crime
Prevention and the Re-Integration of Offenders (NICRO) and Others (CCT 03/04) [2004] ZACC 10; 2005 (3) SA 280 (CC); 2004 (5) BCLR 445 (CC)
(3 March 2004) para 28.
27 Viljoen, F (2005) The justiciability of socio-economic and cultural rights: Experience and problems (Unpublished paper on file with author) 6 notes that,
on the African continent, ‘only a handful of states, notably Botswana, Nigeria and Tunisia, … do not explicitly guarantee any socio-economic … rights’
and that socio-economic rights are included in a large number of Latin-American constitutions.
28 For example, in a recent Colombian decision, the Court held, on the basis of the right to health care, that an AIDS sufferer was entitled to the provision, at
state expense, of those health services essential to keep him alive and to restore his health. See Rights of sick persons/AIDS patients, Constitutional Court
of Columbia, Judgment No T-505/92, 22 August 1992. A Latvian court held that legislation conditioning access to social security benefits on the payment
by employers of contributions on behalf of their employees was invalid on the basis of the right to social security (s 109 of the Latvian Constitution). See
Constitutional Court of the Republic of Latvia, Case No 2000-08-0109. Also see Viljoen (2005) 10–11, 15.
29 See, for example, Paschim Banga Khet Mazdoor Samity and Others v State of West Bengal and Another (1996) AIR SC 2426 (right to emergency
medical treatment read into the right to life) and the references of the Constitutional Court to this case in Soobramoney para 18); Francis Coralie Mullin v
The Administrator, Union Territory of Delhi (1981) 2 SCR 516 529 (right to food read into the right to life).
30 In Milk and Butterfat BVerfGE 18, 315, the Court upheld price control regulations against a freedom of competition-based constitutional challenge
because it held that the state, in terms of the social state principle, is obliged to combat high food prices so as to protect access to basic foodstuffs.

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 31 See, for example, with respect to equality, the Canadian case of Eldridge v British Columbia (Attorney General) 1997 151 DLR (4th) 577 SCC where the
Court held that the state is required to provide sign language interpretation for deaf patients as part of the publicly funded health care system. See with
respect to due process, the US cases of Goldberg v Kelly 397 US 254 (1970) and Sniadach v Family Finance Corp 395 US 337 (1969) where the Courts
held that a hearing is required before access to welfare benefits is revoked. For a view that the latter two cases could, when they were decided, have been
read to give expression to welfare rights in the US Constitution, see Michelman, FI ‘Formal and associational aims in procedural due process’ in Pennock,
JR and Chapman, JW (eds) (1977) Due Process (Nomos XVII) 126.
32 Liebenberg, S (1995) ‘The International Covenant on Economic, Social and Cultural Rights and its implications for South Africa South African Journal
on Human Rights 11(2):359–78 at 359.
33 Grootboom para 26. See also, for example, the references in Grootboom paras 28 and 45 to the ICESCR and the Committee on ESCR.
34 The Committee has to date published 21 General Comments dealing with a wide range of topics related to the interpretation of the various aspects of the
ICESCR. ICESCR (UN Commission on Economic, Social and Cultural Rights) (1990) General Comment No 3 The nature of States parties obligations
(Art. 2, par.1 of the Covenant), available at http://www.refworld.org/docid/4538838e10.html, is of particular importance as the Constitutional Court relied
partly on it when it developed the South African jurisprudence on social and economic rights enforcement.
35 Arts 22–6.
36 Arts 3 and 10–14.
37 Arts 4, 6(2), 19, 20, 24, 26–9 and 31.
38 An exception is Social and Economic Rights Action Centre (SERAC) and the Centre for Economic and Social Rights (CESR) v Nigeria Communication
155/96 (October 2001), a complaint brought against Nigeria for the destruction and wilful neglect, in collusion with an international oil mining
consortium, of natural resources, agricultural land and livestock on which the Ogoni people depended for their livelihood. The African Commission found
that Nigeria had a duty to protect the socio-economic rights of its citizens against invasion from private sources, that it had facilitated the invasion of these
rights by allowing and participating in the actions of oil companies and that it was consequently in violation of arts 2, 4, 14, 16, 18(1), 21 and 24 of the
African Charter. See Mbazira, C (2004) Reading the right to food into the African Charter on Human and Peoples’ Rights ESR Review 5(1):5–7 at 5.
39 See (1987) Limburg Principles on the Implementation of the Covenant on Economic, Social and Cultural Rights Human Rights Quarterly 9(2):122–35 at
124.
40 See (1998) The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights Human Rights Quarterly 20(3):691–704 at 691.
41 See (1995, December) Bangalore Declaration and Plan of Action reprinted in International Commission of Jurists 55:219–27.
42 The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, which establishes an individual complaints mechanism,
was adopted in 2008. It achieved the required 10 ratifications to enter into force only in 2013 and entered into force on 5 May 2013.
43 See Brand, D ‘The minimum core content of the right to food in context: A response to Rolf Künneman’ in Brand, D and Russell, S (eds) (2002b)
Exploring the Core Content of Socio-economic Rights: South African and International Perspectives 100–2 for a more extensive discussion of this point.
See also Craven, M ‘Introduction to the International Covenant on Economic, Social and Cultural Rights’ in Blyberg, A and Ravindran, DJ (eds) (2000) A
Circle of Rights: Economic, Social and Cultural Rights: A Training Resource 49, 55. The approach that the Constitutional Court has adopted to the
adjudication of socio-economic rights claims – its reasonableness review approach – in many respects amounts to the same kind of generalised policy
review method as that applied in the reporting system of the Committee on ESCR. As such, this approach to some extent obviates this particular difficulty
with the use of international law norms.
44 Viljoen (2005) 3.
45 Michelman, FL (2003) The constitution, social rights, and liberal political justification International Journal of Constitutional Law 1(1):13–34 at 14.
46 Klare, KE (1998) Legal culture and transformative constitutionalism South African Journal on Human Rights 14(1):146–88 at 147.
47 Klare refers in addition to adjudication, legislation and executive and administrative action to police procedure, extra-legal dispute resolution and
budgetary processes as ‘sites of law-making’ at 147.
48 Bilchitz, D (2003) Towards a reasonable approach to the minimum core: Laying the foundations for future socio-economic rights jurisprudence South
African Journal on Human Rights 19(1):1–26 at 7–9.
49 For a more detailed description of the SAHRC’s work in this respect, see Kollapen, J (1999) Monitoring socio-economic rights: What has the SA Human
Rights Commission done? ESR Review 1(4):18–20; McClain, CV (2002) The SA Human Rights Commission and socio-economic rights: Facing the
challenges ESR Review 3(1):8–9. For a critique of the SAHRC’s work in this respect, see Brand, D (1999) The South African Human Rights
Commission: First economic and social rights report ESR Review 2(1):18–20; Brand, D and Liebenberg, S (2000) The South African Human Rights
Commission: The second economic and social rights report ESR Review 2(3):12–6.
50 See also sections 24(b) and 25(5) of the Constitution.
51 Examples of such legislation with respect to specific socio-economic rights are discussed in detail in other chapters and will not be listed here.
52 See, for example, Chs 3 and 4 of the Social Assistance Act 13 of 2004 and the South African Social Security Agency Act 9 of 2004.
53 See Ch 2 of the Social Assistance Act that creates entitlements for eligible persons to a Child Support Grant, a Care Dependency Grant, a Foster Child
Grant, a Disability Grant, a War Veteran’s Grant, an Older Person’s Grant, a Grant-in-Aid and a Social Relief in Distress Grant.
54 See, for example, ss 8(1) and 11(1), (2) and (3) of the Extension of Security of Tenure Act 62 of 1997 (ESTA).
55 S 38 states:
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;
(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;
(d) anyone acting in the public interest; and
(e) an association acting in the interest of its members.
56 Case 671/2003 23 October 2003 (B). Our thanks to Nick de Villiers, of the Legal Resources Centre in Pretoria, for providing us with a copy of the order.
57 Government Gazette No 22355, Notice R 509 of 2001 (8 June 2001).
58 Act 108 of 1997.
59 (CCT 39/09) [2009] ZACC 28; 2010 (3) BCLR 239 (CC); 2010 (4) SA 1 (CC) (8 October 2009).
60 Mazibuko para 66.
61 Mazibuko para 70.
62 For a discussion, see Viljoen (2005) 12–3; Scheinin, M ‘Economic and social rights as legal rights’ in Eide, A, Krause, C and Rosas, A (1995) Economic,
Social and Cultural Rights: A Textbook 61.
63 See Williams, LA ‘Welfare and legal entitlements: The social roots of poverty’ in Kairys, D (ed) (1998) The Politics of Law: A Progressive Critique
570–1; Simon, WH (1986) Rights and redistribution in the welfare system Stanford Law Review 38(6):1431–1516 at 1467–77.
64 Much of the social legislation that has so far been enacted is explicit as to this purpose. See, for example, the Preamble of the Social Assistance Act which
states that one purpose of the Act is to give effect to section 27(1)(c) of the Constitution. Courts, in their interpretation of such legislation, have also
emphasised the link between social legislation and the constitutional rights to which it gives effect. See, for example, with respect to the relationship

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 between the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) and ss 26(3) and 25 of the Constitution, Port
Elizabeth Municipality v Various Occupiers (CCT 53/03) [2004] ZACC 7; 2005 (1) SA 217 (CC); 2004 (12) BCLR 1268 (CC) (1 October 2004) para 17
and Cape Killarney Property Investments (Pty) Ltd v Mahamba and Others 2001 (4) SA 1222 (SCA) para 21.
65 So, for example, in Grootboom para 52, with regard to the Housing Act 107 of 1997, the Constitutional Court found the statutory framework for the
state’s measures to give effect to the right to have access to adequate housing to be lacking in that it made no provision for temporary relief for people in a
housing crisis.
66 2002 (6) BCLR 625 (W).
67 Residents of Bon Vista Mansions para 20.
68 Residents of Bon Vista Mansions para 21.
69 Residents of Bon Vista Mansions paras 28–30.
70 2003 (11) BCLR 1236 (C).
71 Act 19 of 1998.
72 City of Cape Town v Rudolph and Others 2003 (11) BCLR 1236 (C) 74H–75J.
73 Act 3 of 2000.
74 Nokotyana and Others v Ekurhuleni Metropolitan Municipality and Others (CCT 31/09) [2009] ZACC 33; 2010 (4) BCLR 312 (CC) (19 November
2009).
75 See Pieterse-Spies, A (2011) Reasonableness, subsidiarity and service delivery: A case discussion SA Public Law 26(1):329–40.
76 1997 (6) BCLR 789 (C).
77 B para 37.
78 B paras 35–6 and 60.
79 See Minister of Public Works and Others v Kyalami Ridge Environmental Association and Others (Mukhwevho Intervening) (CCT 55/00) [2001] ZACC
19; 2001 (3) SA 1151 (CC); 2001 (7) BCLR 652 (CC) (29 May 2001) where the Court upheld a decision by the appellant to house a group of flood
victims on land belonging to it against a challenge on the basis of administrative justice rights partly because the appellant took the decision to give effect
to the right to have access to adequate housing.
80 The complaint in Treatment Action Campaign was, in essence, that the state’s executive definition of its duties in terms of the right to have access to
health care services in the context of the prevention of mother-to-child transmission of HIV at birth fell short of the requirements of the right.
81 S 172(1)(a) of the Constitution requires and so empowers courts to declare any law or conduct inconsistent with the Constitution invalid to the extent of
its inconsistency. Socio-economic rights are included in the scope of this power.
82 See Du Plessis and Others v De Klerk and Another (CCT8/95) [1996] ZACC 10; 1996 (3) SA 850; 1996 (5) BCLR 658 (15 May 1996) for a unanimous
holding that the same term in section 7(2) of the interim Constitution referred to statute, common law and customary law.
83 A court can also develop a common law rule to limit the right, provided that such a rule would then have to be justifiable in terms of section 36(1) of the
Constitution.
84 The textual basis for a Bill of Rights challenge to a statutory or common law rule relied on by the state as against a private entity is s 8(1) of the
Constitution. Similarly, the textual basis for a Bill of Rights challenge to a statutory rule relied on by one private entity against another is clearly s 8(1) of
the Constitution. However, there is some controversy about whether the textual basis for a challenge to a common law rule relied on by one private entity
against another is s 8(1) rather than s 8(2) read with s 8(3). The Constitutional Court in Khumalo and Others v Holomisa (CCT53/01) [2002] ZACC 12;
2002 (5) SA 401; 2002 (8) BCLR 771 (14 June 2002) rejected reliance on s 8(1) in a challenge directed at the existing common law rules of defamation
relied on by a private party. The Court opted instead to bring the Bill of Rights to bear through s 8(2) and (3).
85 It seems that this would be the case, irrespective of whether the Bill of Rights is brought to bear on a dispute through s 8(1) or s 8(2) and (3).
86 (CCT 13/03, CCT 12/03) [2004] ZACC 11; 2004 (6) SA 505 (CC); 2004 (6) BCLR 569 (CC) (4 March 2004).
87 Ss 3(c), 4(b)(ii) and 4B(b)(ii) of the Social Assistance Act 59 of 1992 and s 3 of the Welfare Laws Amendment Act 106 of 1997.
88 The various sections were found to be inconsistent with the Constitution, but were not invalidated to the extent of their inconsistency. Instead, the Court
read words into the sections to remedy the constitutional defect. See Khosa para 98. See also Jaftha where the Court found that provisions of the
Magistrates’ Courts Act 32 of 1944 allowing for the sale in execution of debtors’ homes to satisfy judgment debt were inconsistent with s 26(1) of the
Constitution. The Court read words into the Act to remedy the defect.
89 2002 (4) SA 1 (SCA).
90 For a variety of reasons, the use of constitutional socio-economic rights in this indirect, interpretative way to influence the existing law is potentially
extremely important.
91 (172/2001) [2002] ZASCA 73; 2002 (6) SA 21 (SCA); [2002] 4 All SA 125 (SCA) (31 May 2002).
92 Eide points out that the focus on justiciability, as if that alone determines the relative status of rights, diverts attention from the broader question of the
‘effective protection’ of socio-economic rights, something that occurs through a variety of mechanisms, including adjudication. See Eide, A ‘Future
protection of economic and social rights in Europe’ in Bloed, A et al (eds) (1993) Monitoring Human Rights in Europe: Comparing International
Procedures and Mechanisms 214. However, see An-Na’im, AA ‘To affirm the full human rights standing of economic, social and cultural rights’ in Ghai
and Cottrell (2004) 13, who recognises the limitations of the justiciability debate, but points out that ‘the claim that judicial enforcement of
[socio-economic rights] is not possible or desirable, undermines the human rights standing of these rights’ (our emphasis) and, accordingly, remains
an important focus.
93 The idea that socio-economic rights are justiciable is also criticised from a more promising, radically democratic perspective. The argument is that the
judicialisation of issues of socio-economic politics through the entrenchment of justiciable socio-economic rights could stifle social action, impoverish
political life and ultimately damage struggles for social justice. As Davis has put it, justiciable socio-economic rights might ‘erode the possibility for
meaningful public participation in the shaping of the societal good’. See Davis, DM (1992) The case against the inclusion of socio-economic demands in
a bill of rights except as directive principles South African Journal on Human Rights 8(4):475–90 at 488–90. See also Bakan, J ‘What‘s wrong with social
rights’ in Bakan, J and Schneiderman, D (eds) (1992) Social Justice and the Constitution: Perspectives on a Social Union for Canada 85; Ghai, Y and
Cottrell, J ‘The role of the courts in the protection of economic, social and cultural rights’ in Ghai and Cottrell (2004) 88.
94 Roux, T (2003) Legitimating transformation: Political resource allocation in the South African Constitutional Court Democratisation 10:92–111 at 92–3.
95 An-Na’im (2004) 7.
96 See First Certification paras 76–8.
97 See Grootboom para 41.
98 See Sunstein, CR (2001) Social and economic rights? Lessons from South Africa Constitutional Forum 11(4):123–32 at 123.
99 The following quote from Chaskalson P for the Court in Soobramoney para 29 shows the Court’s concern with both these issues:
The provincial administration which is responsible for health services in KwaZulu-Natal has to make decisions about the funding that should be
made available for health care and how such funds should be spent. These choices involve difficult decisions to be taken at the political level in
fixing the health budget, and at the functional level in deciding upon the priorities to be met. A court will be slow to interfere with rational
decisions taken in good faith by the political organs and medical authorities whose responsibility it is to deal with such matters (our emphasis).
See also Sachs J’s concurring judgment in the same case at para 58:
Courts are not the proper place to resolve the agonising personal and medical problems that underlie these choices. Important though our review

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 functions are, there are areas where institutional incapacity and appropriate constitutional modesty require us to be especially cautious (our
emphasis).
100 Grootboom para 32.
101 Roux (2003).
102 Grootboom para 41.
103 See Treatment Action Campaign (2) para 128 where the Court declined to consider the question whether the state is under a duty to provide breastfeeding
substitutes to HIV-positive mothers to prevent the transmission of HIV to babies through breastfeeding after birth. The reason the Court gave for this was
because this question ‘raises complex issues’ that are best left to government and health professionals to deal with and because sufficient information was
not at the disposal of the Court to make a finding in this respect.
104 See the Court’s remarks in Grootboom para 41 with respect to the extent to which it is willing to interrogate the relative effectiveness of different policy
options in the application of its reasonableness test.
105 See Treatment Action Campaign (2) paras 124–33, in particular para 129.
106 We refer to only two, in some sense, arbitrary practical factors that influence the extent to which courts feel themselves constrained in adjudicating
socio-economic rights claims here. There are, of course, many other, more nuanced factors that also influence constraint such as the extent to which the
adjudication of a particular case would involve a court in considering questions of policy, the position of the claimants in society and the extent and
degree of deprivation motivating a claim. See in this respect De Vos (1997) 367; Bollyky, TJ (2002) R if C>P+B: A paradigm for judicial remedies of
socio-economic rights violations South African Journal on Human Rights 18(2):161–200 at 165.
107 Either statutory subjective rights or statutory commands/commitments.
108 See De Villiers (2002) for an overview.
109 2003 (1) SA 113 (SCA). See also Port Elizabeth Municipality.
110 Graham v Ridley 1931 TPD 476.
111 Act 19 of 1998.
112 See also the ESTA and the Land Reform (Labour Tenants) Act 3 of 1996 (Labour Tenants Act).
113 The question was specifically whether the PIE Act applied to such evictions. See, for example, Ellis v Viljoen 2001 (4) SA 795 (C) where the Court held
that the PIE Act does not apply and Bekker v Jika [2001] 4 All SA 573 (SE) where the Court held that the PIE Act does apply.
114 In Ross v South Peninsula Municipality 2000 (1) SA 589 (C), the High Court held that section 26(3) changed the common law so that an applicant for an
eviction order had to raise circumstance that would persuade the court that it is just and equitable to grant the order in addition to the common law
showing. In Betta Eiendomme (Pty) Ltd v Ekple-Epoh 2000 (4) SA 468 (W) 473A–D, the High Court held that section 26(3) only applied to evictions by
the state and not to evictions by natural or juristic persons.
115 Brisley para 42.
116 Ndlovu; Bekker para 23.
117 In fact, the result was not exactly the same. Had the SCA developed the common law in line with section 26(3) in Brisley, landowners seeking to evict
unlawful occupiers in cases of holding over would certainly have had to persuade courts to exercise their discretion in their favour as they have to do in
terms of the PIE Act. However, landowners would then not have been subject to the stringent procedural requirements imposed by the PIE Act. The
SCA’s decision in Ndlovu; Bekker has therefore, counter-intuitively, in some respects made it more difficult for landowners to evict unlawful occupiers
holding over than it would have been for them had Brisley been decided differently.
118 Treatment Action Campaign (2) para 37. See also paras 35–6 and 60.
119 Brand, D ‘The proceduralisation of South African socio-economic rights jurisprudence, or “What are socio-economic rights for?” ’ in Botha, H, Van der
Walt, AJ and Van der Walt, JC (2003) Rights and Democracy in a Transformative Constitution 53.
120 Heywood, M (2009) South Africa’s Treatment Action Campaign: Combining law and social mobilization to realize the right to health Journal of Human
Rights Practice 1(1):14–36 at 22–3.
121 See the Constitutional Court’s indication in Grootboom that retrogressive steps in the process of giving progressive realisation to socio-economic rights
(essentially negative infringements of such rights) ‘require the most careful consideration and would need to be fully justified by reference to the totality
of the rights provided for in the Covenant and in the context of the full use of the maximum available resources’ – that is, that the Court would subject
such negative interferences in the exercise of socio-economic rights to especially robust scrutiny. See Committee on ESCR General Comment 3 para 9 as
quoted in Grootboom para 45. See also Jaftha paras 61–4 where the Constitutional Court found that provisions of the Magistrates’ Courts Act violated the
negative duty to respect the right to have access to adequate housing. These provisions allowed for the sale in execution of a person’s home without
adequate judicial oversight. The Court proceeded to order the relatively intrusive remedy of reading words into the Magistrates’ Courts Act in spite of
submissions by the Minister of Justice that the order of invalidity be suspended to allow the legislature to remedy the constitutional defect in the Act. See,
further, the discussion below of Port Elizabeth Municipality and Modderfontein Squatters, Greater Benoni City Council v Modderklip Boerdery (Pty) Ltd
(Agri SA and Legal Resources Centre, amici curiae); President of the Republic of South Africa and Others v Modderklip Boerdery (Pty) Ltd (Agri SA and
Legal Resources Centre, amici curiae) 2004 (6) SA 40 (SCA).
122 Pieterse, M (2003) Towards a useful role for section 36 of the Constitution in social rights cases? Residents of Bon Vista Mansions v Southern
Metropolitan Local Council South African Law Journal 120(1):41–8 at 41. See also Khosa paras 83–4.
123 Remember, however, that some social and economic rights, such as the right to basic education guaranteed in s 29, are not similarly qualified. As there
has been no Constitutional Court case directly invoking s 29 to hold the state to its obligation to provide basic education for all, it is impossible to say
whether the same separation of powers concerns will arise for the Court when it does so.
124 In general terms, this means that the infringement must have occurred in terms of a rule (as opposed to a once-off decision) that is clear, precise and
public (accessible) and that applies in equal measure to all those that it reaches. See the dissenting judgment of Kriegler J in President of the Republic of
South Africa and Another v Hugo (CCT11/96) [1997] ZACC 4; 1997 (6) BCLR 708; 1997 (4) SA 1 (18 April 1997) para 36. An infringement occasioned
by mere conduct, unrelated to law of general application, is incapable of justification – if the mere fact of such an infringement is shown, the conduct in
question is unconstitutional.
125 Grootboom paras 39–45 and Treatment Action Campaign (2) paras 38 and 123. In Soobramoney paras 27 and 29, the Court applied an even more lenient
basic rationality standard of scrutiny.
126 In Khosa, the Constitutional Court confirmed a High Court ruling that the exclusion of permanent residents from social assistance benefits violated the
right of access to social assistance (s 27(1)(c) of the Constitution). The measures were found unreasonable because the purpose of the exclusion (to
prevent people who immigrated to South Africa from becoming a burden on the state) could be achieved through means less restrictive of permanent
residents’ rights (stricter control of access into the country) (para 65). Also, ‘the importance of providing access to social assistance to all who live
permanently in South Africa and the impact upon life and dignity that a denial of such access has far outweighs the financial and immigration
considerations on which the state relies’ (para 82).
127 Grootboom para 41: ‘A court considering reasonableness will not enquire whether other more desirable or favourable measures could have been adopted,
or whether public money could have been better spent. The question would be whether the measures that have been adopted are reasonable. It is
necessary to recognise that a wide range of possible measures could be adopted by the state to meet its obligations. Many of these would meet the
requirement of reasonableness. Once it is shown that the measures do so, this requirement is met.’
128 In Jaftha para 34, the Court held that a measure negatively breaching the right to have access to adequate housing ‘may … be justified under section 36 of

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 the Constitution’.
129 Clearly, as the basic socio-economic rights are not qualified by the same ‘reasonable measures’ phrase that applies to the qualified rights, the
reasonableness analysis does not apply to them and breaches of these rights fall to be justified in terms of s 36(1). See Liebenberg (2013) 33.55. However,
although this seems clear from the text, the Constitutional Court has been ambiguous in its application of these basic rights, in particular the rights of
children, in this respect. In both Grootboom and Treatment Action Campaign (2), the Court, despite being invited to do so, chose not to decide the dispute
on the basis of children’s socio-economic rights. Instead, the Court relied on the fact that the state conduct in question also breached these rights to bolster
its eventual finding that the conduct was unreasonable in terms of ss 26(2) and 27(2) respectively. See Brand (2004) 48.
130 S v Zuma and Others (CCT5/94) [1995] ZACC 1; 1995 (2) SA 642; 1995 (4) BCLR 401 (SA); 1995 (1) SACR 568; [1996] 2 CHRLD 244 (5 April 1995)
para 21.
131 Liebenberg (2013) 33.53.
132 Liebenberg (2013) 33.53–4; Brand (2004) 52–3.
133 Per Langa J in City Council of Pretoria v Walker (CCT8/97) [1998] ZACC 1; 1998 (2) SA 363; 1998 (3) BCLR 257 (17 February 1998) para 82:
The rights guaranteed in Chapter 3 of the interim Constitution may be limited in terms of section 33(1) of the interim Constitution. A
requirement of section 33(1) is that a right may only be limited by a law of general application. Since the respondent’s challenge is directed at the
conduct of the council, which was clearly not authorised, either expressly or by necessary implication by a law of general application,
section 33(1) is not applicable to the present case.
134 Treatment Action Campaign (2) para 99.
135 S 1 states that South Africa is ‘one, sovereign, democratic state’ and lists the country’s founding values as, inter alia, ‘[u]niversal adult suffrage, a
national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and
openness’.
136 For an overview of the different ways in which people’s access to land and housing was interfered with during this time, see Van der Merwe, D (1989)
Land tenure in South Africa: A brief history and some reform proposals Journal of South African Law 4:663–92.
137 S 25(2) and (3) of the Constitution. This means that dispossession of land by the state can only occur through regular expropriation, for a public purpose,
following the payment of just and equitable compensation, the amount, time and manner of payment of which must be determined after all relevant
circumstances have been considered.
138 Act 62 of 1997. The ESTA applies to rural land occupied with the tacit or explicit consent of the owner or person in charge. See s 2(1) of the ESTA and
the definitions of ‘occupier’ and ‘consent’ in s 1.
139 The PIE Act applies to all land, including state-owned land (see ss 6 and 7). See also the Labour Tenants Act which applies to rural land occupied and
used in terms of a labour tenancy agreement (s 1). In practice, this Act does not apply to state land as the labour tenancy agreements that it is intended to
regulate are usually with private landowners. The ESTA, the PIE Act and the Labour Tenants Act also regulate private evictions.
140 Ss 8(1) and 11(1), (2) and (3) of the ESTA; ss 4(6) and (7), 5(1)(b) and 6(1) and (3) of the PIE Act.
141 See District Six: Recalling the forced removals South African History Archive available at http://www.saha.org.za/news/2010/February/district_six
_recalling_the_forced_removals.htm.
142 Act 32 of 1944.
143 (CCT74/03) [2004] ZACC 25; 2005 (2) SA 140 (CC); 2005 (1) BCLR 78 (CC) (8 October 2004) para 34.The possible justification of this breach was
considered by the Court in terms of the s 36(1) proportionality test.
144 Jaftha paras 61–4.
145 (CCT 44/10) [2011] ZACC 14; 2011 (3) SA 608 (CC); 2011 (8) BCLR 792 (CC) (11 April 2011).
146 Alston, P and Scott, C (2000) Adjudicating constitutional priorities in a transnational context: A comment on Soobramoney’s legacy and Grootboom’s
promise South African Journal on Human Rights 16(2):206–68 at 245–8.
147 Liebenberg (2013) 33.21.
148 See ss 9(3)(a), 10(2) and (3) and 11(3) of the ESTA and s 6(3)(b) of the PIE Act.
149 (CCT 53/03) [2004] ZACC 7; 2005 (1) SA 217 (CC); 2004 (12) BCLR 1268 (CC) (1 October 2004).
150 S 6(3)(c) of the PIE Act.
151 The SCA decision is reported as Baartman and Others v Port Elizabeth Municipality 2004 (1) SA 560 (SCA).
152 Port Elizabeth Municipality para 58: ‘The availability of suitable alternative accommodation is a consideration in determining whether it is just and
equitable to evict the occupiers, it is not determinative of that question.’ See also para 28: ‘There is therefore no unqualified constitutional duty on local
authorities to ensure that in no circumstances should a home be destroyed unless alternative accommodation or land is made available.’
153 Port Elizabeth Municipality para 31.
154 Port Elizabeth Municipality paras 27, 28, 49 and 59.
155 Port Elizabeth Municipality paras 30 and 59.
156 Port Elizabeth Municipality paras 49 and 55.
157 Port Elizabeth Municipality para 59.
158 Port Elizabeth Municipality paras 45, 55–7 and 59.
159 Port Elizabeth Municipality para 58.
160 Port Elizabeth Municipality para 59.
161 2004 (6) SA 40 (SCA). The Constitutional Court affirmed the decision of the SCA in President of the Republic of South Africa and Another v Modderklip
Boerdery (Pty) Ltd (CCT20/04) [2005] ZACC 5; 2005 (5) SA 3 (CC); 2005 (8) BCLR 786 (CC) (13 May 2005).
162 Modderfontein Squatters para 21.
163 Modderfontein Squatters para 22.
164 Modderfontein Squatters para 26.
165 Modderfontein Squatters paras 43 and 52.
166 Modderfontein Squatters paras 43 and 52.
167 Although expressly indicating that it would not be proper for it to order the state to expropriate the land in question (para 41), the Court did point out that
in light of its order, it would be the sensible thing for the state to do to expropriate the land (para 43).
168 Modderfontein Squatters para 22.
169 Modderfontein Squatters paras 35–8.
170 Modderfontein Squatters para 35.
171 Modderfontein Squatters paras 33, 37 and 38.
172 Modderfontein Squatters para 25.
173 (CC) [2011] ZACC 33; 2012 (2) BCLR 150 (CC); 2012 (2) SA 104 (CC) (1 December 2011).
174 Blue Moonlight Properties para 96.
175 Port Elizabeth Municipality para 16.
176 This interpretation leaves very little, if any, work for the s 27(3) right that other rights (such as the prohibition on unfair discrimination) and other
ordinary legal remedies (such as the rules of the administrative law) do not in any event do. See Alston and Scott (2000).

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 177 Liebenberg (2013) 33.19.
178 (CCT 67/03) [2004] ZACC 6; 2005 (2) SA 476 (CC); 2004 (12) BCLR 1243 (CC) (6 September 2004).
179 Proclamation R7 of 1996, Government Gazette 16992 GN R7, 23 February 1996. The assignment was made in terms of s 235 of the interim Constitution.
180 Mashava para 1.
181 Mashava para 9.
182 Mashava para 10.
183 Act 50 of 1999.
184 Act 54 of 1972.
185 See the Labour Tenants Act, the ESTA and the PIE Act.
186 See, in general, Heyns, CH (1997) Extended medical training and the Constitution: Balancing civil and political rights and socio-economic rights De Jure
30(1):1–17 at 1.
187 (CCT 55/00) [2001] ZACC 19; 2001 (3) SA 1151 (CC); 2001 (7) BCLR 652 (CC) (29 May 2001).
188 Kyalami Ridge para 40.
189 Kyalami Ridge paras 37–40.
190 See s 39(2) of the Constitution.
191 Simon (1986)1433–6; Williams (1998) 575–7.
192 See Van der Walt, AJ (2002a) Exclusivity of ownership, security of tenure, and eviction orders: A model to evaluate South African land-reform
legislation Journal of South African Law 2:254–89 at 254.
193 S 66(1)(a).
194 Jaftha paras 61–4 and 67. The factors that the Court lists at para 60 that should considered are: ‘the circumstances in which the debt was incurred; …
attempts made by the debtor to pay off the debt; the financial situation of the parties; the amount of the debt; whether the debtor is employed or has a
source of income to pay off the debt and any other factor relevant to the … facts of the case …’ (our emphasis).
195 Jaftha paras 17, 31–4 and 52.
196 This is certainly due in the first place to the fact that few such cases have been brought to court except in the area of eviction law. See, for example,
Brisley. Second, courts have in those few cases where the development of the common law to protect socio-economic rights did come into play, readily
deferred to the legislature rather than drive the development themselves.
197 Afrox Healthcare para 21.
198 For critiques of this aspect of the judgment, see Brand, D (2002a) Disclaimers in hospital admission contracts and constitutional health rights: Cases ESR
Review 3(2)17–8; Carstens, PA and Kok, JA (2003) An assessment of the use of disclaimers against medical negligence by South African hospitals in
view of constitutional demands, foreign law and medico-legal considerations SA Public Law 18(2):430–55 at 430; Tladi, D (2002) One step forward, two
steps back for constitutionalising the common law: Afrox Health Care v Strydom SA Public Law 17(2):473–78.
199 (493/2000) [2001] ZASCA 85 (31 August 2001).
200 Ngxuza para 1.
201 Committee on ESCR General Comment No 14 The right to the highest attainable standard of health para 33.
202 Grootboom para 35.
203 Grootboom para 36.
204 Soobramoney para 11.
205 Soobramoney paras 24–8.
206 Soobramoney para 29.
207 Soobramoney para 36. The application was argued around the s 27(3) right not to be refused emergency medical treatment and a reading of the right to
life in terms of which the state is required to keep the applicant alive. The Court denied the application in these respects, holding that because health care
rights were explicitly protected in the Constitution, it was unnecessary to give such an interpretation to the right to life (para 19). Also, s 27(3) did not
apply to the applicant’s case because his was not an emergency situation (para 21). S 27(3) was a right not to be refused emergency medical treatment
arbitrarily where it was available instead of a positive right to make available emergency medical treatment where it was not (para 20). Having disposed
of these two arguments, the Court on its own initiative proceeded to consider the claim on the basis of s 27(1) (para 22).
208 Grootboom para 95.
209 Treatment Action Campaign (No 2) para 135.
210 With respect to its evaluation of the guidelines according to which the state made this decision, the Court applied a stricter reasonableness test. See
Soobramoney paras 23–8.
211 See, for comparison, Bel Porto School Governing Body and Others v Premier of the Western Cape Province and Another (CCT58/00) [2002] ZACC 2;
2002 (3) SA 265; 2002 (9) BCLR 891 (21 February 2002) para 127 where the Court lists factors that could play a role in determining the strictness of its
scrutiny with respect to administrative law reasonableness review.
212 Whether they are a marginalised or especially vulnerable group. See De Vos (2004) 266.
213 Khosa para 80.
214 In Grootboom, the issues were much less clearly delineated than in either Treatment Action Campaign (No 2) or Khosa. Also, in Treatment Action
Campaign (No 2), many of the complex issues the Court had to consider, in other words, the safety/efficacy of Nevirapine and the availability of the
necessary infrastructure to provide it properly, had either been determined by specialised bodies empowered to decide such issues, such as the Medicines
Control Council, or the Court had dispositive evidence at its disposal with which to decide. In both the latter cases, a stricter standard of scrutiny was
applied than in Grootboom.
215 In Khosa, the impugned provisions also breached s 9(3). In applying this section, the Court used a standard of scrutiny rising to the level of
proportionality. It would make little sense to apply s 27(2) to the same breach using a more lenient standard.
216 Mazibuko paras 83, 84, 89 and 101.
217 Mazibuko para 162.
218 Mazibuko para 168.
219 Grootboom para 41.
220 Grootboom para 41.
221 See Roux (2003) 92 with respect to a similar fiction operating in the context of the Court’s engagement with resource allocation issues.
222 The Court did manage to soften the prescriptive edge of its finding and order by directing that Nevirapine be provided only where the attending physician
and the superintendent of the facility in question opined that it was indicated. See Treatment Action Campaign (No 2) para 135, para 3(b) of the order.
223 Khosa para 98.
224 Mazibuko paras 65–6.
225 Mazibuko para 67.
226 Ss 26(2) and 27(2) of the Constitution are clearly mandatory provisions with respect to this basic point: ‘the state must take … measures … to achieve the
… realisation of these rights’ (our emphasis).

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 227 Grootboom para 45.
228 Grootboom para 45. Deliberate retrogression breaches the negative duty to respect rights. As such, it is subject for its justification to s 36(1) rather than to
the reasonableness standard that applies uniquely to the positive duties imposed by qualified rights.
229 Grootboom para 41.
230 Grootboom para 40.
231 Committee on ESCR General Comment 12 The right to adequate food para 25.
232 And, according to the various courts’ remarks in Modderklip Boerdery para 22 and City of Cape Town v Rudolph 77B–84H is still not comprehensive.
233 See, for example, Committee on ESCR General Comment 12 The right to adequate food paras 21–30; General Comment 14 The right to the highest
attainable standard of health para 43; General Comment 15 The right to water paras 37 and 46–54.
234 See Committee on ESCR, specifically General Comment 12 The right to adequate food para 29 and General Comment 15 The right to water para 50.
235 Grootboom para 40.
236 Grootboom para 41.
237 The South African government also seems to understand its duty to fulfil socio-economic rights in this manner. See, for example, the recent adoption by
the Department of Agriculture of the Integrated Food Security Strategy in reaction to criticism from various quarters that no coherent and comprehensive
plan through which to fulfil the right to food existed in South Africa. The Integrated Food Security Strategy is a framework document seeking to create
institutions through which the fulfilment of the right to food can be co-ordinated. This is coupled with the Department’s ongoing efforts to enact
framework legislation in this respect.
238 Grootboom para 39.
239 See below for a discussion of the court’s approach to scrutinising the state’s budgetary choices.
240 See in this respect also People’s Union for Civil Liberties v Union of India & Ors in the Supreme Court of India, Civil Original Jurisdiction, Writ Petition,
(Civil) No. 196 of 2001. This Indian case dealt with an application in part directed at obtaining orders that the Indian government’s existing measures at
national and state level to address food insecurity and famine be effectively implemented. The complaint alleged, among other things, that although
adequate food reserves existed in India, and although the state had adopted various measures to address food insecurity and famine, these measures were
not implemented. This was in part because state governments routinely diverted funds from national government, intended to implement these measures,
to other needs. In response, the Indian Supreme Court issued a number of interim orders requiring, among other things, that funds allocated from national
level to state governments for use in the public distribution of food and famine measures in fact be used for those purposes.
241 Grootboom para 42.
242 Grootboom para 43.
243 Grootboom para 43.
244 Grootboom para 44.
245 See Roux, T (2002) Understanding Grootboom: A response to Cass R Sunstein Constitutional Forum 12(2):41–51 at 49.
246 Grootboom para 66.
247 Treatment Action Campaign (No 2) para 67.
248 Treatment Action Campaign (No 2) para 80.
249 Grootboom para 66.
250 Grootboom para 44.
251 Sunstein (2001) 127.
252 Roux (2002) 49.
253 Brand (2004) 50.
254 See Brand (2002b) 108 and Bilchitz, D (2003) 15–17.
255 Khosa para 82.
256 Khosa paras 60–2.
257 Khosa para 80.
258 Treatment Action Campaign (No 2) para 123.
259 Treatment Action Campaign (No 2) para 123.
260 See also Liebenberg (2013) 33.37–33.38.
261 See De Vos, P (2001) Grootboom, the right of access to housing and substantive equality as contextual fairness South African Journal on Human Rights
17(2):258–76 at 258.
262 Mazibuko paras 40, 67 and 162.
263 (24/07) [2008] ZACC 1; 2008 (3) SA 208 (CC); 2008 (5) BCLR 475 (CC) (19 February 2008).
264 Grootboom paras 82–3. See also Port Elizabeth Municipality para 39 where the Court stated:
… the procedural and substantive aspects of justice and equity cannot always be separated. The managerial role of the courts may need to find
expression in innovative ways. Thus, one potentially dignified and effective mode of achieving sustainable reconciliations of the different interests
involved is to encourage and require the parties to engage with each other in a proactive and honest endeavour to find mutually acceptable
solutions. Wherever possible, respectful face-to-face engagement or mediation through a third party should replace arm’s-length combat by
intransigent opponents.
265 Occupiers of 51 Olivia Road para 13.
266 Occupiers of 51 Olivia Road para 114.
267 Occupiers of 51 Olivia Road para 14.
268 Occupiers of 51 Olivia Road para 115.
269 Occupiers of 51 Olivia Road para 15.
270 Grootboom para 82.
271 Occupiers of 51 Olivia Road para 18.
272 Occupiers of 51 Olivia Road para 20.
273 Occupiers of 51 Olivia Road para 21.
274 Ss 26(2) and 27(2) of the Constitution.
275 Liebenberg (2013) 33.44.
276 Grootboom para 46.
277 Soobramoney paras 24–8.
278 Treatment Action Campaign (No 2) para 19. This prompted the Court to hold that the extension of the programme to these sites ‘will not attract any
significant additional costs’ (para 71).
279 That the onus in this respect is indeed on the state rather than on the claimant is most clearly established in Khosa.
280 Treatment Action Campaign (No 2) para 118.
281 Treatment Action Campaign (No 2) para 119.

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 282 Treatment Action Campaign (No 2) para 120.
283 Treatment Action Campaign (No 2) para 120.
284 Khosa paras 60–1.
285 The Court’s willingness to do so is not insignificant. See by way of contrast Ncgobo J, dissenting in Khosa at para 128:
Mr Kruger … estimates that the annual cost of including permanent residents could range between R243 million and R672 million. Policymakers
have the expertise … to present a … prediction about future social conditions. That is … the work that policymakers are supposed to do. Unless
there is evidence to the contrary, courts should be slow to reject reasonable estimates made by policymakers.
286 Khosa para 62.
287 Khosa is significant in that it clearly establishes that it is not for the claimant in a socio-economic rights case to show that the state is not constrained by
lack of resources, but for the state to show that it is so constrained (paras 60–2). Precisely because the state was unable to make this showing
satisfactorily, the Court rejected its objection, seemingly without requiring the claimants to make a contrary showing (para 62).
288 Khosa para 60.
289 The state estimated that the additional cost would be between R243 million and R672 million. The wide range itself indicated to the Court the absence of
clear evidence as to the possible resource consequences of a finding of inconsistency (para 62).
290 Khosa para 62.
291 Treatment Action Campaign (No 2) para 38.
292 In Khosa, this is precisely what the Court did. Its finding of unreasonableness forced the state to expend resources on providing access to social assistance
benefits, something for which the state itself had not budgeted.
293 Roux (2003) 9.
294 Blue Moonlight Properties para 74.
295 Such ‘just and equitable’ orders could include but are not limited to orders limiting the retrospective effect of an order of invalidity or suspending the
operation of an order of invalidity.
296 Fose v Minister of Safety and Security (CCT14/96) [1997] ZACC 6; 1997 (7) BCLR 851; 1997 (3) SA 786 (5 June 1997) para 19.
297 Fose para 69.
298 Sabel, CF and Simon, WH (2004) Destabilisation rights: How public law litigation succeeds Harvard Law Review 117(4):1016–1101 at 1017.
299 See, in this respect, Trengove, W (1999) Judicial remedies for violations of socio-economic rights ESR Review 1(4):8–11 at 9–10, and, in general, Sabel
and Simon (2004).
300 The Constitutional Court used such a structural interdict in August to ensure that the state took the necessary steps to make it possible for prisoners to vote
in general elections. The various High Courts have made quite regular use of such interdicts in socio-economic rights cases. See, for example, Grootboom
v Oostenberg Municipality and Others 2000 (3) BCLR 277 (C).
301 Grootboom para 99.
302 Treatment Action Campaign (No 2) para 135.
303 Treatment Action Campaign (No 2) para 129.
304 In a number of recent cases, courts have pointed out that the state has to all intents and purposes simply ignored the order in Grootboom and has put in
place no discernible measures to take account of the plight of those in housing crises. See, for example, Modderklip para 22 and Rudolph paras 77B–84H.
See also Pillay, K (2002) Implementation of Grootboom: Implications for the enforcement of socio-economic rights Law, Democracy and Development
6(2):255–77.
305 Sabel and Simon (2004) 1017.
306 Fose paras 18–19.
307 It remains an open question, for example, whether or not a structural interdict would indeed have led to the findings in Grootboom being implemented
effectively by the state or whether, instead, the policy issue in Grootboom was so wide and amorphous and required such wide-ranging and complex
adjustment on the side of the state that the Court would simply have become bogged down in debilitating detail had it retained jurisdiction.
308 This chapter 16 is a modified and updated version of the author’s ‘Introduction’ in D Brand and CH Heyns Socio-economic rights in South Africa (2005).
To the extent that material from that chapter is reproduced here, the Pretoria University Law Press (PULP) that published the original chapter has given
its permission.

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