Question 1
Explain the vertical and horizontal application of the Bill of Rights, as outlined in Section 9(3)
and 9(4) of the Constitution, 1996, and provide an example that illustrates each form of
application. In reference to the horizontal application of the Bill of Rights, identify the
legislation adopted by Parliament, as envisaged by Section 9(4) of the Constitution, to
prevent and prohibit unfair discrimination, and state how this can be used to seek a remedy
for any such discrimination.
[8 marks]
Question 2
Set out the obligations imposed on the State by Section 7(2) of the Constitution in relation to
the implementation of the rights contained in the Bill of Rights, providing an example that
illustrates each of the elements outlined in this provision.
[8 marks]
Question 3
Identify the three core United Nations (UN) human rights instruments forming the
“International Bill of Rights”, and set out the reporting and monitoring mechanisms provided
under the UN system to ensure the implementation of these instruments.
[8 marks]
Question 4
The African Court on Justice and Human Rights hears cases and disputes regarding the
interpretation and implementation of African Charter on Human People’s Rights and its
protocols. The decisions of the African Court are binding on parties.
Article 34(6) of the Protocol to the African Charter on Human and Peoples’ Rights on the
Establishment of an African Court on Human and Peoples’ Rights, (the Protocol) declares:
At the time of the ratification of this Protocol or any time thereafter, the State shall make a
declaration accepting the competence of the Court to receive cases under article 5(3) of this
Protocol.
Explain the requirements that would have to be met for a human rights case to be
considered by the African Court, and comment on the ability of the African Court to hold
state parties accountable for human rights violations.
[8 marks]
Question 5
Section 36(1) of the Constitution (the “limitations clause”) states that the rights in the Bill of
Rights may be limited only in terms of a law of general application and to the extent that the
limitation is reasonable and justifiable in an open and democratic society based on human
dignity, equality and freedom, taking into account all relevant factors (the “justifiability
enquiry”).
a. Outline the “threshold enquiry” the courts first apply to determine the applicability of
the limitations clause. Identify which party would bear the burden of proof in
establishing that the threshold has been met, and the elements that a court would
consider in this regard, citing relevant case law.
[8 marks]
b. Explain the elements of the justifiability enquiry the court would apply, if it is satisfied
that the requirements of the threshold enquiry have been met. In your response,
focus firstly on the phrase “law of general application”, explaining what is envisaged
in this regard and how this has been applied by our courts, citing an example of an
appropriate judgement. Secondly, with reference to the judgement in S v
Makwanyane and Another (CCT3/94) [1995], describe the proportionality enquiry this
requires of a court.
[6 marks]
c. List and explain the five factors set out in Section 36(1) that the court would consider
in determining whether the limitation of a right would be considered reasonable and
justifiable, providing an example of each factor.
.
[8 marks]