Assignment 2

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The direct application of the Bill of Rights means that in disputes where the Bill of Rights is applied as direct law, it overrides any ordinary law and any conduct which is inconsistent with it. It also means that if ordinary law does not provide any remedies, the Bill of Rights will generate its own remedies. There are four issues that determine whether a matter deserves the direct application of the Bill of Rights. I will now endeavor to put these in the context of the dilemma that our professors and the TAC face with the Medicines control Amendment Act and the Minister of Health.

1. Beneficiaries of the Bill of Rights.

The majority of rights in the Bill of Rights are for everyone and may not be denied to any natural person within the territory of the Republic. There are exceptions such as political rights, citizens rights, freedom of movement and freedom of trade rights. These restrictions do not apply to section 16 of the Final Constitution, i.e. the freedom of expression, particularly the right to academic freedom and freedom of scientific research.

According to the first Certification judgment, many universally accepted fundamental rights will be fully recognized ONLY if afforded to juristic persons as well as natural persons. Reference is made by the Constitutional court specifically to the matter at hand, i.e. freedom of speech. The size or activities of the juristic person are not necessarily decisive in whether a private juristic person is entitled to the specific right. What is of significance is whether the juristic person is used for the collective exercise of the fundamental rights of the natural person who stand behind it.

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The Courts approach to standing in Constitutional Litigation makes much of the debate about the meaning of guidelines irrelevant. In a nutshell, any person who alleges that a fundamental right is infringed or threatened, and has a sufficient interest in obtaining a remedy, has a standing to challenge the constitutionality of laws or conduct. In this approach the enquiry is objective. It suffices only to prove that a right has been violated, and not necessarily the right of the applicant. So if the TAC has a sufficient interest by its members, they may challenge without even having to invoke S 8(4) of the Bill of Rights.

2. Duties under the Bill of Rights

The direct application of duties under the Bill of rights is dealt with in Section 8. Section 8(1) of the constitution deals with vertical application, i.e. the circumstances in which all conduct of the state may be challenged for being inconsistent with the Bill of Rights. Section 8(2) deals with direct horizontal application i.e. circumstances in which the conduct of private individuals may be attacked for infringing the Bill of Rights. Section 8(3) grants the courts the power to remedy these infringements.

According to Section 8(1), the legislature, the executive, and all organs of state are bound by the Bill of Rights. Any of these state organs can thus be challenged on their conduct as a breach of their duties under the Bill of Rights.

a)

Legislature These are the institutions that exercise the Republics legislative Authority: Parliament, provincial legislatures and municipal councils. The legislation of National, local and provincial government as well as any form of delegated legislation must comply with the Bill of Rights. Legislatures and their committees and functionaries are also bound by the Bill of Rights when they perform non legislative functions such as the determination of internal arrangements, proceedings, rules and procedures.

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b)

The Executive The executive and organs of state are primarily responsible for making the law, but the Bill of Rights also binds these actors when they make the law. All delegated legislation may be directly tested on its constitutionality. In the Pharmaceutical Manufacturers case, the court held that, at the very least, the exercise of public power by the executive will be tested against the rule of law which requires that decisions must be rationally related to the purposes for which the power was given, otherwise they will be arbitrary and inconsistent with the constitution.

c)

Organs of State All state departments and the administration are bound by the Bill of Rights whether they exercise a power in terms of the Bill of Rights or act in another capacity.

d)

The Judiciary Common law rules and principles may only be directly tested against the Bill of Rights insofar as they are relied upon by actors who are directly bound by the Bill of Rights. Whenever such an actor is bound, the Bill of Rights becomes directly applicable law which overrides common law insofar as it is inconsistent with the Bill of Rights.

3. Temporal Application of the Bill of Rights

The final constitution of the Republic is not retrospective in its operation. This means that if a law or conduct is found contrary to the Bill of Rights, it will only be invalidated from the time that the conduct is deemed as such.

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4. Territorial Application of the Bill of rights

The Bill of Rights applies only to persons within the Republic and has no application beyond our borders, i.e. our Constitution only protects us when we are in South Africa.

The Constitution of the Republic of South Africa 1996, chapter 2, section 16(d) states that everyone has the right to freedom of expression, including the right to academic freedom and freedom of scientific research. The New Medicines control Amendment Act is a direct violation of this right.

Based on the above elements of determining factors, the professors and the TAC have a direct interest in finding a remedy for the violation of Section 16 and sufficient interest in finding a remedy in terms of section 10, the right to human dignity, for the population that depend on this information being released.

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