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Constitutional Law: BILL OF RIGHTS Cheat Sheet (DRAFT) by

South African Bill Of Rights

This is a draft cheat sheet. It is a work in progress and is not finished yet.


Constructed to give effect to transf­orm­ative vision of Consti­tution
Applies to both the state and private persons
Range of rights are protected
(post-­liberal text aimed at facili­tating social + economic transf­orm­ation of SA )
Structure of litigation differs from other branches of law


Is the person/ organi­sation who claim their rights have been infringed entitled to protection by BOR?
Most cases, everyone (excluding fetuses) present in SA and non-ci­tizens in SA can claim rights.
Some rights benefit smaller category like if the right specif­ically says "­chi­ldr­en" or "­wor­ker­s"
Does the person/ organi­sation have standing to bring the case?
Will the BOR apply indirectly or directly to the dispute?
Are the alleged party bound by the BOR?
BOR always binds the state and, in some circum­sta­nces, private parties
If rights are infringed, is the infrin­gement justif­iable i.t.o Limitation Clause s36?
Enables consti­tut­ional rights to be limited for a certain limited + democr­ati­cally justif­iable purpose


Propor­tio­nality test applied to determine whether limitation is reasonable + justif­iable balance b/t NB limitation objective + extent which right is limited
Must consider relevant factors: Relation b/t limitation + purpose, Importance + purpose of limita­tion, Nature of right, Nature + extent of limitation
Legitimate objectives for limiting rights: Protecting rights of others, Public Health, Public Morals, Promoting social justice, National Security
- Only deals with BOR. Some rights may not be limited, even in S.O.E (absolute/ non-de­rogable rights)
- Relati­onships b/t rights might imply limitation on one of them
e.g right to life vs right to bodily + psychology integrity
- formul­ation of right might imply limitation on one of them
e.g no unfair discri­min­ation vs fair discri­min­ation (u18 can't vote)
- Many rights can be limited/ narrowed in order to prevent conflicts with other right/ or certain general interests


1) Applic­ation/ Procedural Stage
Can X go to court to claim their right is infringed?
Is alleged person bound by the duties imposed BOR?
Does BOR apply indirectly or directly to dispute?
2) Limita­tion/ Substa­ntive Stage
What is the scope of the right and does law/ conduct infringe on right?
If infrin­gement occurs, is it justif­iable i.t.o Limitation Clause s36
3) Remedies Stage
Court decides appt. remedies only if law unjust­ifiably infringes right OR doesn't promote values of BOR
3 stages set out in the operat­ional provisions of BOR and regulates the questions courts need to consider. They are:
- State's duty to respect, protect, promote, + fulfill BOR [s7]
- Suspension of rights in S.O.E [s37]
- Who is bound by BOR [s8]
- Who has standings to enforce rights [s38]
- Interpr­etation of rights [s39]
- Limitations of rights [s36]