Bill of rights case summaries:

Topic 1:
Khumalo v Holomisa:
o

The court held that it Reads s8(2) of the Constitution to mean that some of
the specific provisions in the bill of rights will apply directly to some
disputes between private parties some of the time.

o
o

This case is Btwn private individuals

Para 30- applicants argue that the bill of rights should apply directly to cases btwn
individuals where common law is being developed because of the new wording in
s8(1)
They argued that this law has changed because of the du Plessis case(the Du Plessis
Court held that the Interim Constitution's Bill of Rights did not apply directly to
disputes between private parties governed by the common law)
The court held that the applicants argument cannot succeed
Applicant states that if the bill of rights applied indirectly then why would we have
s8(3)
Para 33- the court says that in cases between individuals where the common law is
developed in accordance to the bill of rights there is no automatic direct application
of the bill of rights
Court held that it is direct in only some cases- in this case ( defamation between
private individuals) it applies directly.
This court accepted the Final Constitution's invitation to broaden its conception of
the law and the relationships to which the substantive provisions of the Bill of Rights
apply directly

o
o
o

o
o

Prince case: limitation of rights

o
o

o
o

This appeal concerns the constitutional validity of the prohibition on the use or
possession of cannabis for religious purposes
The constitutional complaint is not whether cannabis should be legalised or not but
rather that the prohibition of it is unconstitutional because it includes in its scope
the possession or use of it required by the Rastafari religion (it is over-broad).
Drugs and Drug trafficking Act(drugs act) and Section 22A(10) of the Medicines Act
read with Schedule 8 of that Act ,prohibits the use or possession of cannabis except
for research or analytical purposes
The constitutional defect in the two statutes is that they are overbroad
Judge Ncobo-Minority judgement: Could a religious exemption be granted without
undermining the purpose of the prohibition:

Said that some of the practices eg bathing in it, are not harmful-there are
non-harmful uses- maybe the provisions should not be so strict
Says that there is no evidence that administration of the provisions if they
allowed the use of dagga for the rastas would be difficult
He said gov could make a plan and explore options, The crafting of the
appropriate exemption must therefore be left to Parliament eg a permit
system, maybe there could be a plan to dispense weed to the 7 priests
The provisions in the act are over broad
He would have invalidated that provision to the extent that it doesnt
disallow rasta to practice bona fide beliefs, he would then suspend the
provision until the gov remedies the defects
CHASKALSON CJ, ACKERMANN AND KRIEGLER JJ:Majority judgement:
The court holds that none of the factors are individually decisive and they
must be looked at together- its a process of balancing and proportionality
as required by section 36
They agree that on the material finding that Rastafarianism is a religion and
that the disputed legislation prohibiting the possession and use of cannabis
trenches upon the religious practices of Rastafari- and thus limits the right to
religion in s15(1) and s31 of the const
Is it a fair restriction under s36
(a)The nature of the right: it is a fundamental right and essential for human
dignity. There are only 10 000 rasta in SA-the fact that they are a small group
is no reason to limit their protection under the Bill of Rights.
(b) the importance of the purpose of the limitation: . Cannabis is the target
of both statutes, primarily because it has the potential to cause harm in the
form of psychological dependence when consumed regularly and in large
doses; to prevent drug abuse and drug trafficking- and all criminal behaviour
associated with drugs
(c) the nature and extent of the limitation: the use of dagga is not obligatory
but some say it is essential for this religion. It is however used in all sorts of
social settings and gatherings and the amount differs depending on a
persons self- control
(d) the relation between the limitation and its purpose: by limiting this right
it will prevent the production, abuse, trafficking and harm caused by
Cannabis-and it is in line with SAs international obligations in the war on
drugs to stop drug trade.
(e) less restrictive means to achieve the purpose:
The police could not distinguish btwn daga for religious purposes
and dagga for recreational purposes. The state would not be able to
enforce the drug legislation
The permit system will not work- there are too many administrative
problems there, it is not the same as the medical provisions because
they are strictly observed by medical practitioners, regular
inspections and hospital policies. Its impossible to know who should
get a permit and regulate distribution and amounts of dagga taken.

the rasta are not well organised as a religion, they are loose
Exception for rasta would make the general law unenforceable.

Pharmaceutical Manufacturers Association of SA and Another:

The relationship between rule of law, constitutional supremacy and the bill of rights
o

o
o

The matter arose when the Transvaal High Court was requested to review and set
aside the Presidents decision to bring the South African Medicines and Medical
Devices Regulatory Authority Act 1998 into operation on 30 Apri l 1999.
The applicants (the President and others) alleged that, through an error made in
good faith, the Act had been brought into operation before the necessary regulatory
infrastructure had been put in place and as a consequence the entire regulatory
structure had been rendered unworkable. The result would be that control over
dangerous medicines would be lost before the new schedules were in place.
The matter was referred to the Constitutional Court by the High Court for
confirmation of its order declaring the Act null and Void
Two issues had to be decided by the Court. The first was whether the High Courts
order setting aside the Presidents decision was a finding of constitutional
invalidity that required confirmation by the Constitutional Court
The court held that the control of the exercise of public power has always
been a matter determined by the CC and thus the HC is correct in referring
the matter to the CC for confirmation
the second issue was whether the Presidents decision to bring the Act into force
was constitutionally valid or not.
Court held that: the exercise of all power must conform with the
Constitution, and, in particular, the requirements of the rule of law; this
includes:
the requirement that a decision, viewed objectively, must be
rationally related to the purpose for which the power was given
this does not mean, however, that a court can interfere with a decision
simply because it disagrees with it or considers that the power was
exercised inappropriately.
The court held that: the decision to bring the Act into force though through no fault
of the President (bona fide), was objectively irrational. no rational basis for the
decision had been suggested
the 1965 legislation that governed the control of medicinal substances and that was
to be replaced by the 1998 Act remains in force until such time as the President
determines a date for bringing the new Act into force.

President of the Republic of SA v Modderklip Boerdery (pty) ltd :

-

rule of law, application of constitution and duties of the state,

o This is an application by the President of the Republic of South Africa together with
the Minister of Agriculture (the state) for leave to appeal against the decision of the

Supreme Court of Appeal (SCA). The respondent is Modderklip Boerdery (Pty) Ltd
(Modderklip), a private company whose farm was occupied unlawfully.
Facts:
After several attempts with the council and the police to remove the
unlawful occupiers of the land Modderklip instituted proceedings in the
Johannesburg High Court for an eviction order. The eviction order was
granted but required a deposit of R1,8 million which Modderklip was not in
a position to pay(was more than the value of the property).
Before this Court, the state argued that because Modderklips property
rights had been infringed by private individuals, the state had not breached
any of Modderklips rights. It also argued that Modderklip was not entitled
to the relief it claimed because it had neglected to apply for an eviction
order timeously.
The court holds that the obligation on the state goes further than the mere
provision of mechanisms and institutions with which to enforce rights. It is also
obliged to take reasonable steps, where possible, to ensure that large-scale
disruptions in the social fabric do not occur in the wake of the execution of court
orders, thus undermining the rule of law
it is unreasonable for a private entity to be forced to bear the burden which should
be borne by the state of providing the occupiers with accommodation.

The CC holds that:

o

The Court finds that in the circumstances of this case, it was unreasonable of the
state to stand by and do nothing when it was impossible for Modderklip to evict the
occupiers because of the sheer magnitude of the invasion and the particular
circumstances of the occupiers. Land invasions of this magnitude have the capacity
to have serious implications for stability and public peace.
The obligation resting on the state was to take reasonable steps to ensure that
Modderklip was provided with effective relief. The state failed to do anything and
accordingly breached Modderklips constitutional rights to an effective remedy as
required by the rule of law and the Constitution
The court ordered the state to give compensation for the land in terms of the
expropriation act( NB the land was not expropriated; the relief was just ordered in
terms of the formula in the act) for the unlawful occupation of Modderklips
property in violation of its rights(s25)
The compensation also ensures that the occupiers will continue to have
accommodation until suitable alternatives are found (to protect the occupiers right
to dignity - and it relieves the state of the task of having to immediately find such
alternatives.
s26- state has obligation to provide housing-they have to progressively realise thisthey have to show that they are taking steps to do this)- it is thus the duty of the
state and not the land owner to provide temp housing for homeless

Topic 2- freedom of expression:

Islamic Unity Convention v Independent Broadcasting Authority:
s16(2) limitations of the freedom of expression and BCCSA code
FACTS: On 8 May 1988, Radio 786 a community based radio station run by Islamic Unity
Convention ran broadcast, there was an interview whereby Dr Zaki questioned the legitimacy of the
state of Israel and most importantly, he asserted that Jewish people were not gassed in
concentration camps during World War II but had merely died of infectious diseases, in particular
typhus. Moreover, he claimed that only a million Jews had died.
o

o
o
o

Clause 2(a) of the Code of Conduct for Broadcasting Services (Schedule 1 to the
Independent Broadcasting Authority Act 153 of 1993) provides that 'broadcasting
licensees shall . . . not broadcast any material which is indecent or obscene or
offensive to public morals or offensive to the religious convictions or feelings of any
section of the population or likely to prejudice the safety of the State or the public
order or relations between sections of the population'.
The fourth respondent had lodged a formal complaint in terms of clause 2(a) with
the second respondent (the Head: Monitoring and Complaints Unit) following a
broadcast by the applicant's community radio station. The fourth respondent's
complaint was that the applicant's broadcast had been 'likely to prejudice . . .
relations between sections of the population' ie. Jews and other communities
The CC had to decide whether the clause was acceptable in terms of the constitution
or not
It starts off by talking about individual autonomy, self-fulfilment- and why we
protect freedom of express
Held, that the prohibition in clause 2(a) against broadcasting material that was 'likely
to prejudice relations between sections of the population' clearly went beyond the
categories of expression enumerated in s 16(2). It did not, for example, require that
the prohibited material should amount to advocacy of hatred, least of all hatred
based on race, ethnicity, gender or religion, nor that it should have any potential to
cause harm
The clause limits the freedom of expression but is it a justifiable limitation?
Held that the prohibition was so widely-phrased and so far-reaching that, in
the absence of any intelligible standard to assist in determining the scope of
the prohibition, it would be difficult to know beforehand what really was
prohibited or permitted, thus denying broadcasters and their audiences the
right to hear, form, freely express and disseminate their opinions and views
on a wide range of subjects
It inhibited the 'freedom to receive or impart information or ideas'.
Justice Langa states that the phrase in the clause prejudice relations
between sections of the population is too vague and the consequence of
this is that it has a chilling effect on speech because it is overbroad.

o
o
o

Although the clause has a legitimate purpose(because of the critical need to

promote and protect human dignity, equality, freedom, the healing of the
divisions of the past and the building of a united society)there are less
restrictive means to achieve this purpose by the enactment of a provision
which was appropriately tailored and more adequately focused
broadcasters become too frightened and thats a big problem for freedom of
speech/expression- in this case its a violation that cannot be justified
The judge says although we want to prevent hate speech, this clause doesnt do that
because its overbroad
The fact that s 16(1)(a) makes specific mention of 'freedom of the . . . media' is a
clear indication of the recognition by the Constitution of the powerful role that the
media plays in shaping public opinion and providing the public with information
about current events
Held that given that s 192 of the Const specifically mandated the regulation of
broadcasting, the dangerous gap which would be left if the relevant portion of
clause 2(a) were struck down in its entirety with nothing to replace it would neither
be just and equitable nor in the public interest.
Clause 2(a) was thus rendered ineffective in its application to protected
expression, but that a prohibition remained in place to prevent the
broadcasting of expression which was unprotected in terms of s 16(2)- this
will be a guideline for the implementation of a replacement clause.
states that further legislative limitations(eg outside of the limitations of freedom
of speech in s16(2)) would be intrusive of section 16(2) and may only place
restrictions on s 16(1) where they are shown to be reasonable in terms of s 36.
4(eg sexual orientation)

South African National Defence Union v Minister of Defence: paras 7-8

prescribed
The importance of the right to freedom of expression/ rationales
o
o

Para 7- quotes s16(1) and 16(2) of the const- freedom of expression

The court holds that:
Freedom of expression lies at the heart of a democracy. It is valuable for
many reasons, including its instrumental function as a guarantor of
democracy, its implicit recognition and protection of the moral agency of
individuals in our society and its facilitation of the search for truth by
individuals and society generally.
The Constitution recognises that individuals in our society need to be able to
hear, form and express opinions and views freely on a wide range of matters
Para 8:
These rights taken together protect the rights of individuals not only
individually to form and express opinions, of whatever nature, but to

establish associations and groups of like-minded people to foster and

propagate such opinions.
It recognises the ability to form and express opinions, whether individually
or collectively, even where those views are controversial.
The result of the freedom of expression and its related rights is tolerance by
society of different views. Tolerance, of course, does not require approval of
a particular view. It requires the acceptance of the public airing of
disagreements and the refusal to silence unpopular views.

Holomisa v Argus Newspapers ltd 1996: freedom of press and media and
freedom of expression rationales
o The right to freedom of speech and expression includes freedom of the press and
other media-the rational for this wide freedom extends beyond instrumental
justifications (which depend on whether the freedom to speak and communicate
advance democratic processes
o There is a 2nd justification which supposes that freedom of speech is valuable, not
just in virtue of the consequences it has, but because it is an essential and
constitutive feature of a just political society that gov treat all its adult members,
except those who are incompetent, as responsible moral agents.
o In a democracy dedicated to openness and accountability the role of the media,
both public and private owned, must be recognised
o Our constitutional venture depends on criticism of the exercise of power. This
requires alert and critical citizens and strong and independent newspapers, journals
and broadcast media. The freedom of the citizen to engage in significant political
communication is largely dependent upon the freedom of the media
o It was alleged in pre-transition SA that state owned/controlled media either failed to
criticise gov with vigour and courage or they failed to provide their viewers and
listeners with sufficient info for them to form their own opinions.

National media ltd and others v Bogoshi 1998- freedom of press and
media
o
o
o
o

The role of the press in a democratic society cannot be understated.

Its function is to ferret out corruption, dishonesty and expose the perpetrators
The press must reveal mal and inept administration
It must contribute to the exchange of info and advance communication between the
governed and those who govern

S Lubbe and L Moyse vs 94.7 Highveld Stereo:

o

Complaints were received about the use of white trash by a presenter on Highveld
Stereo. He referred to people living in Brakpan. A Tribunal of the Commission was
appointed to decide whether the references amounted to a contravention of the
Broadcasting Code.
Held that Context must always be at the heart of any inquiry in terms of the
Broadcasting Code. The text must also not be judged as if what was said, was said
with grave sincerity. The tone was light-hearted and jocular.

I agree that the words complained of do not fall in the category of hate speech.
what must, however, be considered is whether the insert did not invade upon the
collective or individual dignity of a substantial number of Brakpan Whites (not only
Afrikaners)
Referred to O Regan J in Khumalo v Holomisa who states that the right to dignity in
s10 of the Const is held to include the other rights of personality. The value of
human dignity in our Constitution therefore values both the personal sense of selfworth as well as the publics estimation of the worth or value of an individual which
would, under justifiable circumstances, place a further limitation on freedom of
expression.
The conclusion of the Tribunal is that the repetitive use of white trash in the insert
amounts to an unreasonable and shocking intrusion of the right of dignity of White
people (collectively or individually) living in Brakpan. No joke can save it and no
tolerant attitudes of listeners excuses this flagrant abuse of freedom of expression.
It goes further than being merely offensive, it hits at one of the very roots of our
democratic society: dignity and non-racialism. The words were not justified by any
compelling circumstance or the public interest and this was also not put forward as a
defence by the respondent.