1.
Application of the
fundamental rights and
freedoms
2. Rule of law
Application of the fundamental rights
and freedoms
When a person alleges that the State or another person has infringed a
fundamental right, the process that the court must follow to determine
whether the allegation is valid is divided into three stages:
A. The application stage
B. The limitation stage
C. The remedies stage
The application stage
During the application stage, the court has to answer the following
questions:
- 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?
Further, the court has to decide whether the Bill of Rights applies directly or
indirectly to the dispute before it.
When the Bill of Rights applies directly, the purpose is to determine whether
the ordinary rules of law (legislation, common law & customary law) are
consistent with the Bill of Rights.
If not, the Bill of Rights overrides the ordinary rules of law
Application stage…
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 not, the Bill of Rights does not override the ordinary law, instead the Court
uses the Bill of Rights to develop the rules and remedies of the ordinary rules
of law to avoid any inconsistencies between ordinary law and the Bill of
Rights.
Who is entitled to claim the rights in the
Bill of Rights
Everyone is entitled to claim the rights in the Bill of rights, including non-
citizens such as immigrants
(you are referred to Article 10 which provides that ‘everyone is equal
before the law and has the right to equal protection and benefit of the
law, Article 6: ‘Everyone has the right to life and Article 9: that no one may
be subjected to slavery, servitude or forced labour’
This refers to natural persons and in some instances juristic persons,
Standing to enforce rights
‘the following persons may approach the court to assert their rights:
1. anyone acting in their own interest;
2. anyone acting on behalf of another person who cannot act in their own
name;
3. anyone act as a member of, or in the interest of, a group or class of
persons;
4. anyone acting in the public interest;
5. an association acting in the interest of its members.
No need to show ‘direct and personal interest’ in the relief claimed.
Simply allege that fundamental rights in BoR has been infringed or threatened
and show that the categories of persons listed above have sufficient interest in
obtaining a remedy.
Who is bound by the rights in the Bill of
Rights?
To answer this question it is important to distinguish between vertical and
horizontal application of the Bill of Rights:
1. When the BoRs applies vertically, it confers rights on private persons and
impose obligations on the state to respect, protect, promote and fulfil the
rights in the BoRs, only the state is bound by the BoRs,
2. When the BoRs applies horizontally, it confers rights on private presons but
also imposes obligations on them to respect the rights in the BoRs. Both the
state and private persons are bound by the BoRs
Constitutional remedies
A remedy is defined as a process of legal redress embracing all the legal
procedures that a person has to follow to redress the violation of their rights
Can also be understood as the order made by court in response to a
proven violation of a person’s rights.
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
official or a private individual to be lacking.
Remedies
Declaration of invalidity
An interdict
Constitutional damages
Meaningful engagement
Declaration of rights
Rule of law
It is a constitutional value
Also recognised as an enforceable principle on which the exercise of
public power can be challenged
Historical background of the rule of law
Formulated by Dicey
Dicey is the earliest proponent of the principle of law
According to Dicey, the rule of law comprises three main principles
1. the law is supreme, public power can be exercised in terms of authority
conferred by law and may not be exercised arbitrarily
2. Everyone is equal before the law, irrespective of status
3. The ordinary courts are responsible for enforcing the ordinary laws of the
land,, the common law and the statute law.
Rule of law
Simply defined, the doctrine of rule of law deals with governance
according to law, and not according to momentary whims and caprices of
the government and the protection of the fundamental rights of the
individual.
Namibia operates under the concept of constitutional supremacy
The rule of law is essential in ensuring the elimination of arbitrariness and
dictatorship by government and in enforcing constitutionalism in
government.
It is a guiding principle and dictate behind the exercise of power by the
three branches of government.
The rule of law means that the government business must conducted
according to law and not arbitrarily
Rule of law
The rule of law doctrine is a powerful principle that can invoked before the
court to ensure that the exercise of state power conforms to the basic
criteria.
The principle of legality has been invoked as a principle of rule of law.
The principle of legality is an incidence of the rule of law:
governmental/state power is only lawful where it has been found legitimate
and valid.
Where public power is exercised, such acts are only binding if they are
authorised by the law
(South African Constitutional Law in Context by De Vos et al, pg 78, intro to
law 323,
