Chapter Two of the Constitution of South Africa
Khumalo v Holomisa and Ramakatsa v Magashule are prominent cases involving the horizontal application of specific constitutional rights to private disputes.
Section 9(2) was applied to uphold affirmative action measures in Minister of Finance v Van Heerden and South African Police Service v Barnard.
[7][8] These so-called listed grounds are race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
[viii]: 35 Nonetheless, Dawood itself is emblematic of a major category of exceptions to this general rule, in which dignity itself has operated as a dispositive, first-order rule; these exceptions largely relate to intimate associations such as marriage, the Dawood court having held that the right to family life is implicitly protected by section 10 insofar as family relationships are of "defining significance" for many individuals.
Section 11 is also implicated in the use of lethal force in arrest or in self-defence, as considered by the Constitutional Court in Ex Parte Minister of Safety and Security: In re S v Walters.
[7] However, in Christian Lawyers Association v Minister of Health, the Transvaal High Court established that foetuses do not have a right to life in terms of section 11.
Everyone has the right to bodily and psychological integrity, which includes the right— to make decisions concerning reproduction; to security in and control over their body; and not to be subjected to medical or scientific experiments without their informed consent.
[7] Relevant Constitutional Court judgments in this connection include De Lange v Smuts, S v Dodo, Zealand v Minister of Justice, and Mohamed v President.
[x]: 67 Other important cases concerning the right to privacy include Mistry v Interim National Medical and Dental Council of South Africa, Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors, Case v Minister of Safety and Security, De Reuck v Director of Public Prosecutions, and Minister of Justice and Constitutional Development v Prince, all judgments in criminal law or criminal procedure.
Writing for the Constitutional Court in Pilane, Justice Thembile Skweyiya commented: It strikes me that the exercise of the right to freedom of expression can be enhanced by group association.
Political participation, actuated by the lawful exercise of these rights, can and should assist in ensuring accountability in all forms of leadership and in encouraging good governance.
[xviii]: 36 Section 22's predecessor in the Interim Constitution was not restricted in application to South African citizens and therefore could plausibly accommodate non-citizens and even juristic persons in the protections it offers.
In Eskom v Vaal River Development Association, the Constitutional Court held that electricity supply restrictions, effected by Eskom in Lekwa Local Municipality and Ngwathe Local Municipality, impinged upon residents' section 24(a) right, because the restrictions had an adverse effect on the treatment of sewage and therefore on the quality of the water supply.
Justice Madlanga commented, "If the flow of raw faeces into the Vaal River is not violative of the right to an environment that is not harmful to health or well-being, I do not know what is.
In comparative international terms, it is unusually detailed,[7] and property rights were hotly contested during constitutional negotiations, partly because of the symbolic importance of land reform in the post-apartheid context.
Finally, subsection 25(7) provides for land restitution: "A person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress", 19 June 1913 being the date on which the Black Land Act 27 of 1913 was promulgated.
This pair of provisions was interpreted by the Constitutional Court in the landmark case of Government v Grootboom, which held that the right to housing is justiciable and enforceable.
In Jaftha v Schoeman, the Constitutional Court found that this right seeks to correct the apartheid history of forced removals by protecting security of tenure.
[7] Per Jaftha v Schoeman, housing rights have significant implications for South African civil procedure, particularly as concerns the award of writs of execution against debtors' homes.
Given South Africa's linguistic diversity and the sensitivity of language policy, this provision has often been litigated;[7] related cases decided by the Constitutional Court include Mpumalanga Department of Education v Hoërskool Ermelo.
[35] In the Certification judgment, the Constitutional Court held that section 32 envisaged access to state information as a means to "a wider purpose, namely, to ensure that there is open and accountable administration at all levels of government";[xxvii]: 83 in subsequent jurisprudence in lower courts, it was similarly linked to the founding constitutional values of "accountability, responsiveness and openness".
The Constitutional Court held in My Vote Counts v Speaker that, under the principle of subsidiarity, section 32 rights are henceforth justiciable as claims under, or challenges to, PAIA.
The tripartite requirements of section 33(1) were familiar in South African administrative law as common-law principles, but were given new constitutional grounding by the Bill of Rights.
§34: Everyone 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.
It provides that, "Everyone 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".
[7] Moreover, in Chief Lesapo v North West Agricultural Bank, Justice Yvonne Mokgoro commented that the section 34 right is closely related to the constitutional value of the rule of law and is, in particular, "a bulwark against vigilantism, and the chaos and anarchy which it causes".
[xxx]: 46 Other cases involving the interpretation and application of section 34 include Barkhuizen v Napier, Beinash v Ernst & Young, Metcash Trading v Commissioner for the South African Revenue Service, Armbruster v Minister of Finance, and Mphahlele v First National Bank.
[7] In addition, in President v Modderklip Boerdery, the Constitutional Court considered the nature of the state's positive obligations to give effect to section 34.
[iii]: 21–22 Investigating Directorate also held that this approach requires a preference for "reading down" statutes, giving precedence to interpretations on which a given statutory provision does not limit any constitutional right.
[xxxii] Other important cases invoking section 39(2) include Carmichele v Minister of Safety and Security, S v Thebus, and S v Masiya, as well as Bhe v Magistrate, Khayelitsha in the customary law arena.
