In law, South African constitutional litigation is the area dealing with the rules and principles concerning constitutional matters in the country of South Africa. It includes the jurisdiction of the Constitutional Court of South Africa, the High Court of South Africa, the Supreme Court of Appeal of South Africa, and certain other specialist courts. It also includes the consideration of rules peculiar to these courts that are relevant to constitutional litigation, such as the admission of an amicus curiae, the duty to raise a constitutional matter as early as possible in proceedings, and the duty to join the relevant organ of state in a case involving a constitutional issue.
Litigating fundamental rights The South African Bill of Rights is "the principal source of substantive constraints on public power in the Constitution."Currie and De Waal Handbook 23. The Bill of Rights instructs the state to use the power that the Constitution of South Africa gives it in ways that do not violate fundamental rights. The state must promote and fulfil those rights. If it fails to do so, it is deemed to have acted unconstitutionally; its actions or laws will be unlawful and invalid. Although the Constitution is mainly concerned with state power and law, a number of provisions of the Bill of Rights place duties on private individuals in certain circumstances.
A fundamental principle of South African law is expressed by the maxim ubi ius ubi remedium (). In other words, the existence of a legal rule implies the existence of an authority with the power to grant a remedy if that rule is infringed. As such, a legal rule is deficient if there is no means of enforcing it and if no sanction attaches to a breach of that rule. Breaches of the Bill of Rights may be remedied by litigation that seeks to directly enforce the principles of set out in the document.
Direct Bill of Rights litigation takes place in several stages. There is an initial procedural stage, followed by several stages dealing with issues of substance. At each distinct stage of the litigation, the court must consider whether the burden of proof is on the applicant or respondent.
Summary The stages through which Bill-of-Rights litigation typically proceeds may be summarized as follows:
Procedural stage
Does the Bill of Rights apply in the dispute between the parties? How does the Bill of Rights apply in the dispute?
As for the first question, it must be determined whether the applicant is entitled to claim the benefits of the Bill of Rights. It must also be determined whether the Bill of Rights applies to the conduct of the respondent, in the sense that the respondent has obligations under the Bill of Rights. Finally, it must be determined whether the cause of action arose in the national territory during the period of application of either the interim or 1996 Bill of Rights.
As for the second question, indirect application must be considered before direct application. If the Bill of Rights is indirectly applied to the issue, the questions of justiciability, jurisdiction and an appropriate remedy are resolved in terms of ordinary legal rules. If directly applied, special constitutional rules apply.
Is the issue to be decided justiciable? Does the applicant in the matter have standing in respect of the particular relief sought? Does the court have jurisdiction to grant the relief claimed?
Substantive stage If the answer to all three questions is "yes," the court is able to move on to the substantive stage.
Has the law or conduct of the respondent infringed a fundamental right of the applicant? If so, the court will consider whether the infringement is justifiable. If not, then the application must be dismissed. Is the infringement a justifiable limitation of the right in question according to the criteria set out in section 36? If yes, then the conduct of the respondent is not unconstitutional; the application must be dismissed. If no, then the conduct is unconstitutional, and the question of the appropriate remedy must be canvassed.
Remedies
What remedy is appropriate in this case?
Procedural questions in rights litigation Initially, a court hearing a Bill-of-Rights case considers possible procedural issues, including:
the application of the Bill of Rights to the subject-matter of the litigation; the justiciability of the issue to be decided (including the standing of the applicant); and the jurisdiction of the court to grant the relief claimed by the applicant.
Often, these procedural aspects of the case will be uncontroversial and the court can proceed directly to the substance of the case.
Application and the principle of avoidance Application of the Bill of Rights concerns the issues of whether and how the Bill of Rights applies in a legal dispute. The first of these issues (whether the Bill of Rights applies) raises four questions:
Who benefits from the Bill of Rights? Who is bound by the Bill of Rights? Does the Bill of Rights apply to matters arising before its commencement? Does the Bill of Rights apply only in the national territory, or does it have extraterritorial effect?
Answering these questions involves determining the "reach" or "scope" of the Bill of Rights.
Application is concerned not only with whether the Bill of Rights applies, however, but also with how it applies in a legal dispute. The question here is this: What is the relationship between the Bill of Rights and the principles or rules of ordinary law? Currie and de Waal argue that the two application issues should be resolved in the following way:
The reach of the Bill of Rights (beneficiaries, duties, time and territory) demarcates the types of legal disputes to which the Bill of Rights directly applies. Within this area, the Bill of Rights overrides ordinary law and conduct that is inconsistent with it. In addition, and subject to considerations of justiciability and jurisdiction, the Bill of Rights generates its own set of remedies. This form of application, which is geared towards showing inconsistency between the Bill of Rights and law or conduct, is called the direct application of the Bill of Rights. At the same time, the Bill of Rights contains a set of values that must be respected whenever the common law or legislation is interpreted, developed or applied. This form of application, which aims at creating harmony between the Bill of Rights and ordinary law, is called the indirect application of the Bill of Rights. When indirectly applied, the Bill of Rights does not override ordinary law; nor does it generate its own remedies. Instead, law is interpreted or developed in a way that makes it conform to the Constitution. The special constitutional rules relating to the procedural issues of standing and the jurisdiction of the courts are also irrelevant to this form of application. Rather, the Bill of Rights respects the procedural rules, the purpose and remedies of ordinary law, but demands the furtherance of its values through the operation of ordinary law.Currie and De Waal 24.
Indirect application of the Bill of Rights must be considered before direct application. This is due to the principle of avoidance, which states that constitutional issues should be avoided whenever possible. This principle requires a court first to try to resolve a dispute by applying ordinary legal principles, as interpreted or developed with reference to the Bill of Rights, before applying the Bill of Rights directly to the dispute.
An important implication of the principle of avoidance is that the special rules in the Bill of Rights relating to the standing of litigants and the jurisdiction of the courts apply only when it is impossible to give effect to the values in the Bill of Rights by applying, interpreting or developing the ordinary law. Similarly, constitutional remedies are only relevant when the Bill of Rights is directly applied to an issue. If it is possible to resolve the dispute through indirect application, ordinary procedural rules and remedies apply to the dispute.
However, in order to apply the Bill of Rights indirectly, a court must obviously determine the effect of the provisions of the Bill of Rights. A court cannot interpret or develop the ordinary law with reference to the values contained in the Bill of Rights without knowing what they are. The interpretation of the Bill of Rights and its limitation clause therefore remain important, even when the Bill of Rights is indirectly applied.
Justiciability In some cases, an applicant may lack standing to seek a remedy. In other cases, the issue may have become moot or academic and therefore not justiciable. An issue may also be non-justiciable because it is not yet ripe for decision by a court. The Bill of Rights contains special rules relating to these issues when it is directly applied. In such cases, it demands a broader approach to standing. In cases of indirect application, the ordinary legal rules apply.
Jurisdiction In cases of indirect application, the ordinary procedural rules apply. The constitutional jurisdiction of the courts and the procedures that must be observed when the Bill of Rights is directly applied to law or conduct are not simply technical issues, but are of paramount importance for the protection of fundamental rights in practice. It is important to know in which forum to challenge an alleged violation of a right, since not all courts have the same jurisdiction in constitutional matters. If the court does not have the jurisdiction to grant the relief claimed, it must dismiss the application, whatever its merits may be.
Substantive questions in rights litigation At the substantive stage of Bill-of-Rights litigation, the court is concerned with the substance of the applicant's allegation that a right has been infringed by law, or by the conduct of the other party. The court must assess the merits of this allegation. This assessment primarily involves the interpretation of the provisions of the Constitution in general, and the Bill of Rights in particular.
In determining whether or not a right has been unjustifiably infringed, the court undertakes what is "essentially a two-stage exercise": it must determine whether a guaranteed right has been violated by the impugned law or conduct, and, if it has, it must determine whether that violation is justifiable in terms of other constitutional considerations.Ex Parte Minister of Safety and Security: In Re S v Walters 2002 (4) SA 613 (CC) para 26–27. If the court finds that a violation of a right is not a justifiable limitation, it will have to consider the proper remedy to deal with the unconstitutional infringement of a fundamental right.
The approach of the court to onus in respect of these stages is set out by Ackermann J in the following extract from Ferreira v Levin NO:
The task of determining whether the provisions of [an] Act are invalid because they are inconsistent with the guaranteed rights here under discussion involves two stages, first, an enquiry as to whether there has been an infringement of the [...] guaranteed right; if so, a further enquiry as to whether such infringement is justified under [...] the limitation clause. The task of interpreting the [...] fundamental rights rests, of course, with the Courts, but it is for the applicants to prove the facts upon which they rely for the claim of infringement of the particular right in question. Concerning the second stage, [it] is for the legislature or the party relying on the legislation to establish this justification [in terms of the limitation clause], and not for the party challenging it, to show that it was not justified.