Bill of Rights Case

1. Direct application of the Bill of Rights is whereby in disputes where the Bill of Rights applies directly as law it trumps ordinary law and any conduct that is inconsistent with it. As seen in the case of Pharmaceutical Manufacturers^[1] where the court said “that there are not two systems of law, each dealing with the same subject matter, each operating in its own field with its own highest court. There is only one system of law. It is shaped by the constitution which is the supreme law, and all law, including the common law, derives its forces from the Constitution and is subject to constitutional control.” There are four elements that determine the direct application of the Bill of Rights.^[2] 

The first step in determining the scope and application of the Bill of Rights is to determine the correlative relationship of legal rights. For example if A has a legal right to something, then B has a legal duty to honour that right. Therefore A is the beneficiary of the right and B is the duty-bearer in respect of the right.^[3] 

Most rights in the Bill of Rights are afforded to everyone. For example s 11 which says that “everyone has the right to life”. Other rights are restricted in the sense that they contain a clause that limits to whom the right applies. For example the right to vote applies to “every adult citizen”. Juristic persons too are afforded some of these rights as provide for by s 8(4)^[4] “a juristic person is entitled to the rights in the Bill of Rights to the extent required by the nature of the rights and nature of that juristic person”

In other words if the right is applicable to the Juristic person and to the right then the juristic person is entitled to that right. For example the media is entitled to freedom of speech and the authorities have the duty to uphold that right.

2) Traditionally the Bill of Rights is based on providing regulation to the relationship between the state and its citizens, this is known as a “horizontal” relationship.^[5] This is to ensure that the state cannot exercise excessive unsupported force on the vulnerable individuals. However the Constitution^[6] of South Africa takes it a step further by identifying that there is a risk of the individual abusing his/her rights in regards to the state as set out in the Bill of Rights.

There are differences that exist between the application of the Bill of Rights being direct vertically applied and it being direct horizontally applied. S 8(1) of the Constitution^[7] of South Africa deals with the direct vertical application of the Bill of Rights. It sets out the conditions in which law and conduct of the state may be challenged for being inconsistent with the Bill of Rights^[8]. In contrast to this s 8(2) of the Constitution of South Africa^[9] stipulates the circumstances in which the conduct of private individuals may be attacked for infringing the Bill of Rights. Finally section 8(3) enables the courts with the power to remedy such infringements.^[10] 

Section 8(1) of the Constitution of South Africa^[11] provides that the legislature, judiciary, executive and all the organs of state are bound by the Bill of Rights and therefore an applicant may challenge the conduct of any of the above in court.

The legislature is the branch of government that formulates legislation, it consists of parliament, the provincial legislature and municipal councils.^[12]  Any legislation made by them is subject to being in line with the Bill of Rights. Furthermore any conduct by them outside of law-making is also bound by the Bill of Rights.^[13] 

The executive in the eyes of the Bill of Rights is bound to the organs of state, which means that the conduct of the executive and the organs of state are subjected to the Bill of Rights.^[14] Except for section 33 of the Constitution^[15] which provides for “administrative action”. ^[16]

3) The indirect application of the Bill of Rights is in reference to the fact that the Bill of Rights and The Constitution of South Africa are not always directly binding on the individual or state in fact they are used more to influence the interpretation and creation of law.^[17] Through this they mould and direct ones thinking when interpreting and constructing law to make sure that they adhere to the guidelines set out in the Bill of Rights. For example a court would firstly look at the ability of reading the legislation in a manner that causes it to conform to the Bill of Rights. If this is not possible or does not adequately construct a clear version the court still has the power to apply the Bill of Rights directly and invalidate the legislation or conduct. Section 39(2) of the Constitution^[18] places a duty on every court to promote the Bill of Rights when interpreting any legislation.