Bill of Rights

1. Direct application of the Bill of Rights is whereby in disputes where the Bill of Rights applies directly as law it trumps ordinary law and any conduct that is inconsistent with it. As seen in the case of Pharmaceutical Manufacturers^[1] where the court said “that there are not two systems of law, each dealing with the same subject matter, each operating in its own field with its own highest court. There is only one system of law. It is shaped by the constitution which is the supreme law, and all law, including the common law, derives its forces from the Constitution and is subject to constitutional control.” There are four elements that determine the direct application of the Bill of Rights.^[2] 

The first step in determining the scope and application of the Bill of Rights is to determine the correlative relationship of legal rights. For example if A has a legal right to something, then B has a legal duty to honour that right. Therefore A is the beneficiary of the right and B is the duty-bearer in respect of the right.^[3] 

Most rights in the Bill of Rights are afforded to everyone. For example s 11 which says that “everyone has the right to life”. Other rights are restricted in the sense that they contain a clause that limits to whom the right applies. For example the right to vote applies to “every adult citizen”. Juristic persons too are afforded some of these rights as provide for by s 8(4)^[4] “a juristic person is entitled to the rights in the Bill of Rights to the extent required by the nature of the rights and nature of that juristic person”

In other words if the right is applicable to the Juristic person and to the right then the juristic person is entitled to that right. For example the media is entitled to freedom of speech and the authorities have the duty to uphold that right.

2) Traditionally the Bill of Rights is based on providing regulation to the relationship between the state and its citizens, this is known as a “horizontal” relationship.^[5] This is to ensure that the state cannot exercise excessive unsupported force on the vulnerable individuals. However the Constitution^[6] of South Africa takes it a step further by identifying that there is a risk of the individual abusing his/her rights in regards to the state as set out in the Bill of Rights.

There are differences that exist between the application of the Bill of Rights being direct vertically applied and it being direct horizontally applied. S 8(1) of the Constitution^[7] of South Africa deals with the direct vertical application of the Bill of Rights. It sets out the conditions in which law and conduct of the state may be challenged for being inconsistent with the Bill of Rights^[8]. In contrast to this s 8(2) of the Constitution of South Africa^[9] stipulates the circumstances in which the conduct of private individuals may be attacked for infringing the Bill of Rights. Finally section 8(3) enables the courts with the power to remedy such infringements.^[10]