The Judical Officer - Dec 07 - Joasa.org.za

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16 7. Section 8(1) of the Constitution stipulates that the Bill of Rights Rights is applicable to all law; and binds all organs of the state on all levels. 8. Section 8(2) of the Constitution stipulates that the Bill Bill of Rights Rights binds natural persons; and juristic persons to the extent that the Bill of Rights is applicable. 9. If all the above-mentioned sections are read together, it becomes clear that this Constitution is supreme supreme; supreme and that all and everybody are subordinate to this Constitution. 10. Although section 2 of the Constitution is formally known as the supremacy clause, has section 1 of the Constitution a HIGHER ENSHRINING ENSHRINING-status ENSHRINING ENSHRINING status than section 2. Why? Because section 74(1) of the Constitution stipulates that **section **section **section **section 11 11 of the Constitution may be amended, provided provided that 75% of the members of the National Assembly; and 6 of the 9 provinces in the National Council of Provinces support such an amendment. 11. Please note that NO OTHER section section in the Constitution is as strongly enshrined enshrined as this section 1. Further, section 74(2) of the Constitution stipulates that the Bill Bill Bill Bill of of of of Rights Rights Rights Rights in the Constitution may be amended, provided that 2/3 of the members of the National Assembly; and 6 of the provinces in the National Council of Provinces support such an amendment. 12. Implication Implication 1: 1: 1: Section 1 of the Constitution is the most important important section in the supreme Constitution. 13. Implication Implication 2: 2: If section 1 (as the most important section) is read together with section 74(1), then every (human or) fundamental right in the Bill of Rights which relates to any of the three core values of human dignity, equality or freedom, may ONLY be amended amended if 75% of the members of the National Assembly; and 6 of the 9 provinces in the National Council of Provinces support
17 such an amendment: contrary to the popular (but faulty faulty) faulty belief that only a “2/3-majority” is needed “to rewrite rewrite rewrite rewrite the Bill of Rights in the South African Constitution”. 14. In certain circumstances an enshrined fundamental right of an individual may be limited. This necessitates a closer look at the limitation clause (i.e. section 36) in the Constitution. 6 6 THE THE LIMITATION LIMITATION LIMITATION CLAUSE CLAUSE 6.1 6.1 What What does does LIMITATION of a FUNDAMENTAL RIGHT entail entail? entail The (human or) fundamental rights in the Bill of Rights are not not absolute. Why? Because one person’s fundamental right(s) are limited * by other persons’ fundamental rights; and * by justifiable needs of society (cf. De Waal et al 1999:140-141). The fundamental rights in the Bill of Rights are protected against limitation by the state. That is why the limitation clauses are RESTRICTIVE RESTRICTIVELY RESTRICTIVE LY interpreted with regard to the vertical vertical application of the Bill of Rights. Overly simplified, restrictive restrictive restrictive restrictive interpretation interpretation requires that the law must be interpreted, as far as possible, in favour of the subject of the state [because the subject of the state is in a much weaker power power power power position than the powerful powerful state (Burns 1998:29)]. Section 36(1) is the most important part of the limitation clause in the South African Constitution. 6.2 6.2 Section Section 36(1) 36(1) In S S S S v v v v Makwanyane Makwanyane Makwanyane Makwanyane 1995 1995 (6) (6) BCLR BCLR 665 665 (CC) (CC); (CC) 1995 (3) SA 391 (CC) the Constitutional Court adopted a “proportionality enquiry or test” with regard to the
Page 1 and 2: 1 THE JUDICIAL OFFICER Journal of t
Page 3 and 4: 3 THE JUDICIAL OFFICER - GUIDELINES
Page 5 and 6: 5 (3) POLITICS OF LAW which, in the
Page 7 and 8: . 7 Consequently, full recognition
Page 9 and 10: The Constitution stipulates that *
Page 11 and 12: * the Bill of Rights, as the result
Page 13 and 14: * under the doctrine of parliamenta
Page 15: 5 5 THE THE SUPREMACY SUPREMACY CLA
Page 19 and 20: 19 * the purpose of this limitation
Page 21 and 22: 21 Section 172(1) of the Constituti
Page 23 and 24: 23 * if a statute prescribes ground
Page 25 and 26: 25 Please note that according to Br
Page 27 and 28: (6) sex; (7) ethnic or social origi
Page 29 and 30: 29 With regard to the mentioned nat
Page 31 and 32: manner. 31 * to affect a person adv
Page 33 and 34: 33 white” males nor women [from a
Page 35 and 36: in terms of the remarked results. *
Page 37 and 38: 37 “In the Public Servant’s Ass
Page 39 and 40: 39 * relates to the onus of PROOF a
Page 41 and 42: 12.1 12.1 Section Section 26(1) 26(
Page 43 and 44: 43 that a human right has been infr
Page 45 and 46: 45 Schwikkard, PJ., Van der Merwe,
Page 47 and 48: 47 In the oft quoted case of Richte
Page 49 and 50: 49 In Kanis v Kanis 1974 (2) SA 606
Page 51 and 52: 51 JUDICIAL IMMUNITY: THE CIVIL AND
Page 53 and 54: 53 This is just an article to set o
Page 55 and 56: 55 The irregularity in the proceedi
Page 57 and 58: 57 In Moeketsi v Minister van Justi
Page 59 and 60: And: 59 ‘To sum up: In different
Page 61 and 62: 61 it is the existence of mala fide
Page 63 and 64: 63 a sjambok for contempt of court
Page 65 and 66: 65 punishment took place not in ter
Page 67 and 68:
67 in elke saak waarin hulle per ab
Page 69 and 70:
69 There are many aspects that come
Page 71 and 72:
71 delivered the judgment for the m
Page 73:
73 Cases of indecent assault do not
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The Judical Officer - Dec 07 - Joasa.org.za

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