A: Procedural Stage - 1: Beneficiaries - Cases
Lawyers for human rights v minister of home affairs
Tswane city v Link Africa
The court requires the applicant to show that they are genuinely acting in the public interest
The defendant claimed that the state did not have access to the rights enshrined in S25(1) of the Constitution
This case makes reference to Ferreira v Levin
The provision challenged a deprivation of freedom
The courts should adopt a broad not a narrow approach to standing to ensure persons are protected by their constitutional rights
The organisations mission was to promote human rights
The court should distinguish between the subjective position of the person who is acting and the objective position of the alleged public interest, usually not in the interests of justice for matters to be brought in the abstract
The court may proceed to decide the constitutionality of a law even if the party who raised the question does not have standing
Additions to the test of whether an applicant is acting in the public interest:
Degree of vulnerability of persons whose interests are being protected
Nature of the right
Consequences of the infringement of the right
Whether illegal foreigners (immigrants, not legally entitled to be there) may claim the rights in S12 (freedom and security of the person, includes the right to not be deprived of freedom arbitrarily and without just cause) and S35(2) of the Constitution (rights of detained persons).
The legislation in place entitled the authorities to detain illegal foreigners at a SA airport or sea-port for up to 30 days - without a right of recourse to those rights contained in the BoR
Court says everyone should be given its ordinary meaning
If the drafters of the Constitution wanted to restrict these rights to citizens only, it would have said so expressly.
The BoR does not confer rights on the government rather provides them with obligations to respect, promote and fulfil those rights
The main issue in this case: Was S22 of the Electronic Communications Act invalid and therefore unconstitutional for being in contravention of S25(1) of the Constitution by permitting arbitrary deprivation of property?
In this case the fact that the city cannot claim rights does not mean the challenge will necessarily fail as the co-litigant is a private property holder who is protected by S25(1) rights.