CLLE 211
ASSIGNMENT 1
Question 1 [10]
Clearly distinguish between the concepts “fundamental rights” and “human rights” by
defining each and explaining their roles in South African law.
Distinguishing between fundamental rights and human rights: In constitutional
law, the terms "human rights" and "fundamental rights" are often used
interchangeably, yet they hold distinct meanings within both international and
national legal frameworks.
Definitions
Human rights: are universal entitlements inherent to all individuals because they are
human, regardless of nationality, race, or gender. These include the right to life,
freedom from torture, and equality, as reflected in global documents such as the
Universal Declaration of Human Rights (1948), and the International Covenant on
Civil and Political Rights (1966). They set a global standard and aim to guide states
in protecting and promoting human well-being, but essentially, their implementation
depends on the voluntary commitment of each nation.
Fundamental rights: on the other hand, are rights specifically entrenched in a
country's constitution. In South Africa, the rights are found in Chapter 2 of the
Constitution (the Bill of Rights), Republic of South Africa, 1996 (Republic of South
Africa, 1996:5). These rights are binding on the state (Section 8(1)) and enforceable
in South African courts. Some of the examples include the right to accessing housing
(Section 26), equality (Section 9), and freedom of expression (Section 16).
Roles in South African law
Human rights form the philosophical foundation of the South African legal order. The
preamble of the Constitution commits to respecting human rights, and Section 39(1)
(b) instructs courts to consider international law when interpreting the Bill of Rights.
Fundamental rights on the other hand give these ideals concrete legal form.
According to Section 2, any law or conduct inconsistent with these rights is invalid,
reinforcing the Constitution as the supreme law. Furthermore, South African
fundamental rights were formalised first in the 1993 Interim Constitution and later in
the 1996 Constitution, transitioning from parliamentary sovereignty to constitutional
supremacy
Illustrative examples and case law
a) Right to freedom of expression: Internationally recognized as a human
right, but in South Africa, it gains enforceability through Section 16 of the
Constitution. For instance, if a journalist is harassed by law enforcement for
reporting on political corruption, they can approach the Constitutional Court
for relief under domestic law and this is something that is not guaranteed
under international law.
b) S v Makwanyane (1995): The Constitutional Court abolished the death
penalty, grounding its decision in the right to dignity (Section 10) and the right
to life (Section 11).
c) Minister of Home Affairs v Fourie (2005): The Court enforced the right to
equality (Section 9), ordering the legal recognition of same-sex marriages.
Question 2 [20]
Explain the requirements and the application of the Separation of Powers (Trias
Politica) in the South African Constitutional Law.
The separation of powers in South African Constitutional law: The principle of
separation of powers also known as trias politica, divides the government into three
branches, namely legislative, executive and judicial. Each branch must function
independently to ensure that no single arm of state becomes too powerful.
Core requirements
a) Separation of functions and personnel:
Legislature (Section 43) – Parliament makes laws.
Executive (Section 85) – The President and Cabinet implement laws and
manage national administration.
Judiciary (Section 165) – Courts interpret the law and ensure that the law is
applied fairly.
b) Checks and balances: each branch must constrain the others to prevent the
abuse of power. Judicial review and parliamentary oversight are key
examples.
Constitutional foundation
The South African Constitution reflects the Trias Politica in its structure, dedicating
separate chapters to the legislature (Chapter 4), executive (Chapter 5), and judiciary
(Chapter 8). However, Chapter 3 introduces a co-operative governance model that
adapts this separation to a three-tiered system (national, provincial, and local) and it
requires these spheres of government to work together.
Case law and practical application
a) The Nkandla case Economic Freedom Fighters v Speaker of the National
Assembly and Others (2016): The Constitutional Court ruled that the
President failed to uphold the Constitution by not implementing the Public
Protector’s findings. Therefore, this ruling reinforced judicial independence
and demonstrated a check on executive power.
b) Fedsure Life Assurance Ltd v Greater Johannesburg Transitional
Metropolitan Council (1999): affirmed that municipal councils derive
authority from the Constitution, reinforcing the separation of legislative and
executive power.
Illustrative challenge
At times, the overlap in personnel (for example, Cabinet members drawn from
Parliament) raises concerns about the robustness of the separation making South
Africa’s model more relatively separated than strictly divided. From a law
enforcement perspective, understanding the separation of powers is not only
theoretical. For instance, when officials of the South African Police Service receive
instructions from political leaders to arrest protestors without proper legal grounds,
like a warrant or legal justification. It is the duty of the officer to refuse based on the
legal framework provided by the judiciary and legislature. They must decline such
actions because it would violate constitutional principles and the rule of law.
Because officers serve the Constitution and not individuals. This separation
promotes transparency and ensures that each branch acts as a check on the other,
preserving democracy and preventing authoritarianism.
Conclusion
Therefore, the separation of powers ensures accountability, prevents abuse of
authority, and safeguards democratic values. It enables courts to invalidate
legislation or executive actions that are unconstitutional (Section 172), while
reaffirming the supremacy of the Constitution.
Question 3 [20]
Discuss the “General limitation clause” (Section 36) as contained in the Bill of Rights.
The general limitation clause (Section 36) in the Bill of Rights:
Section 36 of the Constitution permits the limitation of rights in the Bill of Rights,
provided it is through a "law of general application" and is "reasonable and justifiable
in an open and democratic society" Republic of South Africa, (1996:7). This clause is
crucial for balancing individual freedoms with the collective good. It considers five
factors.
Threshold 1: Law of general application
To limit a right, the limitation must be in terms of a law of general application
meaning it must apply broadly, be accessible, and not be arbitrary. For example, in
Dawood v Minister of Home Affairs (2000), the Court ruled out that vague
administrative powers could violate this requirement.
Threshold 2: Reasonableness and justifiability
The limitation must also be reasonable and justifiable in an open and democratic
society based on human dignity, equality, and freedom (Section 36(1)).
Five proportionality factors (Section 36(1)(a)-(e)
(a) Nature of the right: for example, religious expression is deeply personal,
and any interference must be narrowly tailored.
(b) The importance of the purpose of the limitation: for example, public
safety or national security can justify limits, as seen in S v Makwanyane.
(c) The nature and extent of limitation: more severe limitations demand
stronger justification.
(d) The relationship between limitation and purpose: the limitation must
logically achieve its aim.
(e) Less restrictive means to achieve the purpose: If the goal can be reached
in a less invasive way, that alternative must be used.
Illustrative case law
a) For example, the COVID-19 lockdown regulations restricted freedom of
movement (Section 21) and assembly (Section 17). These were severe
limitations but were justified under Section 36 to protect public health.
Similarly, the right to privacy (Section 14) may be limited by anti-terrorism
laws that permit surveillance under judicial oversight.
b) Another common example arises in schools, where learners may be
prohibited from wearing certain religious symbols for safety or uniformity. As
seen in MEC for Education: KwaZulu-Natal v Pillay (2007), the Constitutional
Court ruled in favour of a learner who wore a nose stud for cultural reasons,
stating that the limitation was not justified under Section 36.
Conclusion
Section 36 balances individual liberty with societal needs, ensuring rights can only
be limited under strict and accountable conditions, vital for protecting constitutional
democracy. Ultimately, this clause ensures that while rights are respected, they are
not absolute. It gives courts a structured test to determine if the state is justified in
limiting rights for the greater good.
TOTAL 50
