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B: Substantive Stage - 1: Interpretation with focus on human dignity -…
B: Substantive Stage - 1: Interpretation with focus on human dignity - Cases
Dawood v Minister of Home Affairs
O-Regan - once courts declare legislation unconstitutional it must also be declared invalid. There was no way to interpret the act to provide any type of relief for the parties. The purpose of the statute is to control and regulate the movement of foreigners in and out of SA
The court found this inappropriate and rather suspended an order of invalidity for 2 years. To give effect to people's current constitutional rights the court issued a mandamus that officials considering applications for temporary residence permits must consider constitutional rights and whether there is a just and equitable reason for person not to be accepted
HC ruled that both the fee that must be paid upon application and the above-mentioned provisions of the Alien's control act to be unconstitutional and invalid. The order of invalidity of the fee provision for a period of 3 months and the application provision for 12 months. The validity of Mrs Dawood's temporary residence permit that was held was extended. This set president that when a spouse, who is a citizen and a spouse who is a non-citizen reside in SA then the department must extend temporary residence until an application for permanent residence can be lodged
The argument in this case was the refusal to allow spouses to stay together during application infringes on their rights to dignity, and the citizens right to stay in SA, children's rights to family care and the right not to be subject to unfair discrimination
S25(9)(b) of the Aliens Control Act requires - a permit could only be granted to the spouse of an SA citizen who is in SA if they are at the time in possession of a valid temporary residence permit
The court used Reading in in this case
General rule regarding immigration permits - when you apply for an immigration permit you must be outside of the country
Human dignity
S1 - dignity is a foundational value of the Constitution
S7 - The BoR enshrines the rights of all people, is foundational to democracy and affirms the value of human dignity in the Constitution
S10 - Everyone has the right to dignity and the right to have their dignity respected
S36 - The limitations of rights must be justifiable in an open and democratic society founded on the values of human dignity, equality and freedom
S39 - When interpreting the BoR the values of human dignity, equality and freedom must be promoted
Spouses who were permitted permits to permanently reside in SA pending the outcomes for applications for immigration permits
Human dignity as a right has a residual function - where the value of human dignity is offended, the primary constitutional breach occasioned may be a more specific right. There will be more specific rights to rely on when alleging violation.
The right to cohabit is not a right in thee Constitution. Thus, no specific right to rely on in the Constitution. Where there is no more specific right to rely on in the Constitution, then you may rely on the right to human dignity (protects all other rights). Thus, can rely on S10 for those who wish to enter into a sustain a permanent, intimate relationship
Teddy Bear Clinic for abused children v Minister of Justice
This case concerned the right of dignity
If we criminalize children's consensual acts, then it infringes on human dignity due to such a wide range of acts being criminalized and some things included was normal to their development. To criminalize it would cause a stigma and hamper their development
HC declared it invalid
This legislation was contrary to the right to privacy and the right of the best interest of the child, the court declared relevant sections to be invalid
The case was about the fact that this Act criminalizes certain consensual acts of sexual conduct between minors between 12 and 16 and they would then be prosecuted
Was the court correct to declare it invalid? It was set up too broad. Too must was included by the legislature, they should not have dictated the mores of society.
This case deals with S15 (penetration / statutory rape) and S16 (kissing / hugging) of the Sexual offences act
The right of human dignity may be relied on if there is no other right which may be relief on, however in this case there were other more specific rights to rely on (privacy and the best interests of the child), but the court also chose to rely on human dignity
If we followed the Dawood principle, the court should have used the value of human dignity to inform the interpretation of privacy and the best interests of the child.
There are 2 positions on which you can rely regarding the value of human dignity and the right to human dignity
The facts in Dawood pressed the court to consider human dignity and the residual function of it
The facts in Teddy Bear Clinic forced the court to recognise the value of human dignity in informing the rights to privacy and the best interests of the child
Both understandings are supported by the CC judgements