Public vs Private
The Great Divide
Public law regulates the state–individual relationship. Private law regulates relationships between private persons.
The Public Side
- CONSTITUTIONAL LAW — the structure of the state, rights of persons
- ADMINISTRATIVE LAW — rules controlling the exercise of public power by government officials
- CRIMINAL LAW — the state prosecutes and punishes offenders
- TAX LAW — the state's power to levy and collect taxes
- INTERNATIONAL PUBLIC LAW — relations between states
The Private Side
- LAW OF CONTRACT — binding agreements between private parties
- LAW OF DELICT — civil wrongs causing harm
- LAW OF PROPERTY — ownership, real rights, land
- FAMILY LAW — marriage, divorce, children
- LAW OF SUCCESSION — inheritance, wills
The public/private divide is not absolute. Labour law, company law, and consumer protection law span both. The Constitution further complicates the divide by applying rights horizontally (between private persons).
Substantive vs Procedural
The Method Room
Substantive law defines rights and duties. Procedural law prescribes how those rights are enforced in court.
Substantive Law
Defines what conduct is prohibited, what rights exist, and what obligations parties owe each other. Examples: criminal law (what acts are crimes), contract law (what makes an agreement binding), delict law (what constitutes a civil wrong).
Procedural Law
Sets the rules for bringing and defending claims in court: how to issue process, plead, adduce evidence, and appeal. Examples: Criminal Procedure Act, Rules of the High Court, law of evidence.
You need both: substantive law tells you WHAT the rule is; procedural law tells you HOW to enforce it. A right without a remedy is worthless — procedural law provides the remedy pathway.
Criminal vs Civil
Two Arenas
Criminal law is state-initiated and punitive. Civil law is between private parties and remedial.
Criminal Law
- The STATE prosecutes the accused (prosecution is in the state's name)
- The standard of proof is BEYOND REASONABLE DOUBT
- Consequences: imprisonment, fines, community service
- Purpose: punish, deter, and protect society
Civil Law
- A PRIVATE PLAINTIFF sues a defendant
- The standard of proof is BALANCE OF PROBABILITIES
- Consequences: damages, interdict, specific performance
- Purpose: compensate the plaintiff and enforce private rights
The same event can give rise to both criminal and civil proceedings. Example: an assault is both a crime (state prosecution) and a delict (civil claim for damages). The two proceedings are independent of each other.
Exam trap: acquittal in criminal proceedings does not mean the civil claim fails. The standards of proof differ — beyond reasonable doubt (criminal) is much higher than balance of probabilities (civil).
Constitutional Supremacy
The Supreme Arch
The Constitution is the supreme law. Any inconsistent law or conduct is invalid.
The Arch Inscription
Section 2 of the Constitution: "This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled."
What this means
- No statute, no regulation, no government action can override the Constitution
- Courts can declare any inconsistent law invalid
- The Constitutional Court has the final say on all constitutional matters
- This is a break from parliamentary sovereignty (the apartheid model)
Under apartheid, Parliament was sovereign — it could pass any law and courts could not strike it down. Post-1994, the Constitution is sovereign. Parliament can pass laws, but only within constitutional bounds.
Separation of Powers
The Three Towers
Power is divided among three branches — each has distinct functions; each checks the others.
The Three Towers
- LEGISLATURE (Parliament: National Assembly + NCOP) — makes law
- EXECUTIVE (President + Cabinet + public service) — implements law and governs
- JUDICIARY (courts) — interprets and applies law; the Constitutional Court is the apex
Checks and Balances
- Legislature: holds executive accountable through votes of no confidence, oversight committees
- Executive: can refer legislation back to the legislature or to the Constitutional Court
- Judiciary: can declare legislation and executive action unconstitutional
Separation of powers is not absolute in SA — there is interdependence. But each branch must respect the constitutional competence of the others. Courts do not make policy; they review its constitutional conformity.
Exam trap: judicial review is not judicial supremacy. Courts test laws against the Constitution; they do not replace Parliament as lawmakers. This balance was tested in Makwanyane and TAC.
Cooperative Governance
The Federal Map
SA has three spheres of government — national, provincial, and local. They are cooperative, not hierarchical.
Three Spheres
- NATIONAL — Parliament, national executive, national courts
- PROVINCIAL — nine provinces, each with its own legislature (provincial legislature) and executive
- LOCAL — municipalities (metropolitan, district, local)
Cooperative Governance
Chapter 3 of the Constitution requires that all spheres of government cooperate with one another in mutual trust and good faith. They must assist each other and avoid legal disputes where possible.
The Constitution divides legislative and executive powers between the national and provincial governments in Schedules 4 and 5. Schedule 4 = concurrent powers; Schedule 5 = exclusive provincial powers. National law prevails over conflicting provincial law in the Schedule 4 areas.
Bill of Rights
The Rights Charter
Chapter 2 of the Constitution — the Bill of Rights — is a cornerstone of democracy. It enshrines the rights of all people.
What it Protects
- First-generation rights: civil and political (equality s 9, dignity s 10, life s 11, privacy s 14, expression s 16, assembly s 17, political rights s 19)
- Second-generation rights: socio-economic (housing s 26, health care s 27, food and water s 27, social security s 27, education s 29)
- Third-generation rights: collective or "solidarity" rights — the environmental right s 24, the rights of cultural, religious and linguistic communities ss 30–31, self-determination s 235
- The generations are a descriptive scheme, not a constitutional one: rights such as children's rights (s 28) cut across all three, and the Constitution nowhere classifies rights this way
Who is Bound
Section 8(1): the Bill of Rights binds all branches and organs of state. Section 8(2): the Bill of Rights binds natural and juristic persons to the extent applicable. State and private actors are both subject to constitutional rights.
Every person in SA has constitutional rights — citizens and non-citizens. Some rights are limited to citizens (s 19 political rights, s 21 freedom of movement for citizens). Most rights protect everyone on SA territory.
Application
Vertical and Horizontal
Rights apply vertically (state vs individual) and horizontally (private person vs private person).
Vertical Application
The state must respect, protect, promote, and fulfil constitutional rights. This is the traditional function of a Bill of Rights — preventing government from violating individual rights.
Horizontal Application
Under s 8(2), the Bill of Rights applies to private persons where applicable given the nature of the right. Courts must develop the common law to give effect to rights between private parties (s 8(3)).
Direct vs Indirect Horizontality
- DIRECT: s 8(2) directly applies a right to a private party
- INDIRECT: s 39(2) requires courts to develop the common law in the spirit of the Bill of Rights when private disputes arise
Most horizontal application in SA occurs indirectly — through the development of the common law. Courts reshape private law rules (contract, delict) to conform with constitutional values rather than directly applying the Bill of Rights between private parties.
Limitation
The Limitation Scale
No right is absolute. Rights can be limited by law of general application that is reasonable and justifiable (s 36).
The Section 36 Test
- The limitation must be in terms of a LAW OF GENERAL APPLICATION
- The limitation must be REASONABLE AND JUSTIFIABLE in an open and democratic society based on dignity, equality and freedom
- Courts weigh: (1) nature of the right, (2) importance of the purpose, (3) nature and extent of the limitation, (4) relation between limitation and purpose, (5) less restrictive means available
The Proportionality Inquiry
The limitation stage requires a proportionality analysis. Even if a government purpose is important, the limitation must not be more restrictive than necessary. Courts balance the harm done to the right against the benefit achieved.
A right can only be limited by law of general application — not by executive discretion, administrative act, or individual decision. Legislation that limits rights must pass the s 36 proportionality test.
Exam trap: the limitation clause applies AFTER you have found that a right is infringed. First establish the infringement; then ask whether it is justifiable under s 36. Do not conflate the two stages.
Socio-economic Rights
The Provision Floor
The Constitution includes justiciable socio-economic rights — but the state's obligation is to take reasonable measures progressively.
What they Require
Sections 26 (housing), 27 (health, food, water, social security), 28 (children's rights), and 29 (education) impose positive obligations on the state to take reasonable legislative and other measures within available resources.
The Reasonableness Standard
Courts do not dictate what specific measures the state must take. They assess whether the state's programme is reasonable overall — whether it addresses the needs of those most in desperate need and takes progressive steps toward full realisation.
Key Cases
Government of the Republic of South Africa v Grootboom2001 (1) SA 46 (CC)A housing programme that makes no provision for those in desperate need is unreasonable and unconstitutional — regardless of its overall quality.
Facts. Mrs Grootboom and hundreds of others lived in intolerable conditions in an informal settlement in Oostenberg. They moved onto private land earmarked for low-cost housing and were evicted, their shelters demolished. They sought emergency housing from the government under the constitutional right of access to housing.
Legal question. Does the right of access to housing (s 26 of the Constitution) impose an obligation on the state to provide emergency housing to those in desperate need?
Judgment. The Constitutional Court held unanimously that the existing government housing programme was unreasonable because it made no provision for emergency relief for people in desperate need. The Court ordered the state to devise and implement a programme to meet the immediate needs of people in crisis.
Significance. The leading case on socio-economic rights. Establishes the reasonableness standard for evaluating state compliance with s 26 (housing) and related rights. Confirms that socio-economic rights are enforceable — not merely aspirational. The reasonable measures test requires attention to those most vulnerable.
Exam tip. Use for: socio-economic rights, s 26 housing, reasonableness standard, progressive realisation, available resources. The key question is: does the state's programme make reasonable provision? A programme that ignores desperate need fails this test. Pair with TAC for health rights.
Minister of Health v Treatment Action Campaign2002 (5) SA 721 (CC)The state's health programme must be reasonable. Where a safe, effective drug is available, a policy restricting access without rational basis violates the right to health care.
Facts. The Treatment Action Campaign challenged government policy that restricted the drug Nevirapine (which prevents mother-to-child transmission of HIV) to a limited number of pilot sites. Pregnant women at non-pilot sites could not access the drug. The TAC argued this violated the right of access to health care (s 27) and children's rights (s 28).
Legal question. Was the government's policy of restricting Nevirapine to pilot sites consistent with its constitutional obligations under the right of access to health care and children's rights?
Judgment. The Constitutional Court ordered the government to make Nevirapine available at public hospitals and clinics beyond the pilot sites and to develop a comprehensive programme for the prevention of mother-to-child transmission. The Court rejected the separation of powers argument that courts could not tell government how to set health policy.
Significance. Extends Grootboom to the right of access to health care (s 27). Confirms that courts can and should enforce socio-economic rights against government. Clarifies the relationship between judicial remedies and separation of powers — courts can order structural relief that requires government action. A landmark victory for health rights litigation.
Exam tip. Use for: s 27 health rights, children's rights (s 28(1)(c)), separation of powers in rights enforcement, structural remedies, reasonableness test applied to health policy. Remember: the reasonableness standard is context-sensitive — what is reasonable in a rich country may differ from what is reasonable in a resource-constrained one.