In law, South African constitutional litigation is the area dealing with the rules and principles concerning constitutional matters in the country of South Africa. It includes the jurisdiction of the Constitutional Court of South Africa, the High Court of South Africa, the Supreme Court of Appeal of South Africa, and certain other specialist courts. It also includes the consideration of rules peculiar to these courts that are relevant to constitutional litigation, such as the admission of an amicus curiae, the duty to raise a constitutional matter as early as possible in proceedings, and the duty to join the relevant organ of state in a case involving a constitutional issue.
Litigating fundamental rights
The South Africa Bill of Rights is "the principal source of substantive constraints on public power in the Constitution." The Bill of Rights instructs the state to use the power that the Constitution of South Africa gives it in ways that do not violate fundamental rights. The state must promote and fulfill those rights. If it fails to do so, it is deemed to have acted unconstitutionally; its actions or laws will be unlawful and invalid. Although the Constitution is mainly concerned with state power and law, a number of provisions of the Bill of Rights place duties on private individuals in certain circumstances.
A fundamental principle of South African law is expressed by the maxim ubi ius ubi remedium (). In other words, the existence of a legal rule implies the existence of an authority with the power to grant a remedy if that rule is infringed. As such, a legal rule is deficient if there is no means of enforcing it and if no sanction attaches to a breach of that rule. Breaches of the Bill of Rights may be remedied by litigation that seeks to directly enforce the principles of set out in the document.
Direct Bill of Rights litigation takes place in several stages. There is an initial procedural stage, followed by several stages dealing with issues of substance.
Initially, a court hearing a Bill-of-Rights case considers possible procedural issues, including:
the application of the Bill of Rights to the subject-matter of the litigation; the justiciability of the issue to be decided (including the standing of the applicant); and the jurisdiction of the court to grant the relief claimed by the applicant.
Often, these procedural aspects of the case will be uncontroversial and the court can proceed directly to the substance of the case. The first step in the substantive stage of the litigation involves interpreting the provisions in the Bill of Rights. The court must consider, by reference to the facts of the case and to the Bill of Rights, whether a right has been violated. If the court does find that a right has been violated, it must then consider whether that violation is a justifiable limitation of the right. Finally, if the court finds that a violation of a right is not a justifiable limitation, it will have to consider the proper remedy to deal with the unconstitutional infringement of a fundamental right. At each distinct stage of the litigation, the court must consider whether the burden of proof is on the applicant or respondent.
Stages
Before a court may proceed to consider the issues of substance raised in human rights litigation, it must first consider several preliminary, procedural issues.
Procedural issues
Application and the principle of avoidance
Application of the Bill of Rights concerns the issues of whether and how the Bill of Rights applies in a legal dispute. The first of these issues (whether the Bill of Rights applies) raises four questions:
Who benefits from the Bill of Rights? Who is bound by the Bill of Rights? Does the Bill of Rights apply to matters arising before its commencement? Does the Bill of Rights apply only in the national territory, or does it have extraterritorial effect?
Answering these questions involves determining the "reach" or "scope" of the Bill of Rights.
Application is concerned not only with whether the Bill of Rights applies, however, but also with how it applies in a legal dispute. The question here is this: What is the relationship between the Bill of Rights and the principles or rules of ordinary law? Currie and de Waal argue that the two application issues should be resolved in the following way: