Please enable JavaScript.
Coggle requires JavaScript to display documents.
A: Procedural Stage - 2: Duty bearers - Cases - Coggle Diagram
A: Procedural Stage - 2: Duty bearers - Cases
Carmichele v minister of safety and security
She relied on rights such as life, dignity and freedom
The HC and SCA focused on the obligation to develop the common law, not on a constitutional basis, but in the light of the unusual nature of the applicant's cause of action.
Carmichele argued that the police and a prosecutor had a duty to ensure that he was not released on bail
The CC pointed out that the SCA and the HC did not pay attention to the constitutionality of developing the common law, it only came up in the CC. The HC has the most experience when dealing with the common law
Carmichele was assaulted by Coetzee who was at the time out on bail
The court stated that incremental changes must happen on a case to case basis depending on the case and the court.
Coetzee had a history of abusing and sexually assaulting females, also at one stage assaulted and attempted to murder a fried of his. He was arrested after this instance, but was released on bail
The case concerned the development of the common law delictual duty to act
The common law governs this claim - she is claiming damages on the basis of the common law
Where a court develops the common law, the provisions of S39(2) of the Constitution oblige it to have regard to the spirit, purport and objects of the BoR.
The CC asked the second Thebus question - does the common law fall short of the spirit, purport and objects of the BoR. If so, then the common law needs to be developed.
The CC ordered that the case go back to the HC, and that the HC should consider how the common law should be developed in this instance.
Barkhuizen v Napier
The HC found that this was inconsistent with S34 - access to courts because you cannot take the party to court because they have been exempt from liability
The SCA held that since there is no evidence that the contract was entered to by force it is not inconsistent - doesn't go against public policy and is therefore valid and enforceable
It dealt with the time limitation clause in a standard insurance contract - 5.2.5 - if you claim from the insurance and they don't pay, you have 90 days to claim from them - if you don't then they cannot be held accountable
The CC rejected the HC's S34 argument
This case dealt with the incremental changes to the common law
The court looked at whether there would be a practical difference in the BoR between the different types of applications:
Direct vertical application
Must argue that the law violated a particular right in the BoR. Then test the rule or conduct against the BoR. Then determine if this limitation is justifiable in terms of S36
If the infringement is not justifiable in terms of S36, then there are constitutional remedies
S8(1)
Indirect vertical application
S39(2)
Must interpret any conflict between the legislation and the BoR to harmonize them with one another. Values of the Constitution while promoting the spirit, purport and object of the BoR
Remedy in terms of the ordinary law such as a declaratory order
Courts should rather go with indirect as stated in S v Mhalangu
Direct horizontal application
S8(2) and (3)
Must argue to test conduct against the BoR
If not justifiable in terms of S8(3) there must be a development of the common law
Remedy - the common law
Indirect horizontal application
S39(2)
Developers to harmonise in terms of the values underlying the Constitution
Incremental development on a case to case basis
The remedy - the common law
There was a car accident and the car was written off, insurance company said that they wouldn't pay. From the date of saying they wouldn't pay the 90 days started running, then he instituted proceedings 2 years later