FUNDAMENTAL RIGHTS MCQ MEMORANDUM 2022 2ND SEMESTER 29 NOVEMBER

1 GROUP A & B

FUNDAMENTAL RIGHTS
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2nd sememester 2022
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29 NOVEMBER 2022
Both group a & b

1. Vertical application of the Bill of Rights refers to the application of the Bill of
Rights to a dispute between private parties, where the constitutionality of
legislations is not at issue.

False, vertical application refers to the application of the Bill of Rights to a dispute which
concerns the constitutionality of legislation, or a dispute to which the state is a party.

2. The Constitutional Court has jurisdiction to hear any matter, if leave to appeal is
granted and the matter is of such importance that it ought to be considered by the
Constitutional Court. (2)
FUNDAMENTAL RIGHTS MCQ MEMORANDUM 2022 2ND SEMESTER 29 NOVEMBER
2 GROUP A & B

True, section 167 of the Constitution has been amended by the Constitution Seventeenth
Amendment Act of 2012 granting it jurisdiction to hear any matter.

3. The customary law rule of male primogeniture, in terms of which wives and
daughters are not allowed to inherit where the testator has died without a will,
infringes the right to human dignity.
(2)

True, because this statement was confirmed by the Constitutional Court in Bhe v
Magistrate Khayelitsha.

4. Section 39 of the Constitution, the interpretation clause, provides that any court,
tribunal or forum, when interpreting the Bill of Rights may consider international
law and must consider foreign law. (2)

False, section 39 of the Constitution provides that any court, tribunal or forum when
interpreting the Bill of Rights, must consider international law and may consider foreign
law.

5. The Constitution makes provision that a matter can be brought directly to the
Constitutional Court. (2)

True, the Constitution makes provision that a matter can be brought directly to the
Constitutional Court, only if the matter is of such public importance or urgency that direct
access will be in the interest of justice.

6. Franco Seerdorf, a German soccer player, has a three-year contract to play for a
South African soccer club. Franco is therefore entitled to vote in the next general
elections in South Africa. (2)

False, because political rights are only granted to citizens of South Africa.

7. You are a legal adviser to the Pretoria City Council. The Council plans to evict a
number of squatters from its land that has been earmarked for a housing project.
The Council has the right to evict the squatters and demolish their dwellings. (2)
False, because evictions can only occur once a court order has been granted.

8. S v Makwanyane is a clear example of the indirect application of the Bill of Rights

were the Constitutional Court found that section 277 of the Criminal Procedure Act
51 of 1977, was unconstitutional and therefore invalid. (2)

True, the applicable sections in the Bill of Rights were indirectly applied which allowed
for a declaration of invalidity in terms of section 172 of the Constitution.

9. The Constitutional Court applies a standard of reasonableness in establishing

whether the state has achieved the progressive realization of the socio-economic
FUNDAMENTAL RIGHTS MCQ MEMORANDUM 2022 2ND SEMESTER 29 NOVEMBER
3 GROUP A & B

rights provided for in the Constitution. (2)

True, although a considerable margin of discretion is given to the state when deciding on
how it is to go about fulfilling socio-economic rights, the reasonableness of the measures
that it adopts can be evaluated by a court.

10. The general limitation clause can meaningfully be applied to all rights in the Bill
of Rights.

False, because some provisions contain internal demarcations that repeat the phrasing of
section 36.

11. Formal equality refers to sameness of treatment.

True, because this means that the law must treat individuals the same regardless
of their circumstances.

12. In Harksen v Lane No the Constitutional Court set out three distinct stages to
determine whether an applicant’s right to dignity has been infringed.

False, in Harksen v Lane No the Constitutional Court set out three distinct stages
to determine whether an applicant’s right to equality has been infringed.

13. In terms of section 38(e) of the Constitution an association who would like to act
in the interest of its members has to fulfil all the applicable common law
requirements. (2)

False, it is not necessary to show that the common law requirements are complied with,
only that the members have sufficient interest in the remedy it seeks.

14. The Constitutional Court applies a standard of reasonableness in establishing

whether the state has achieved the progressive realization of the socio-economic
rights provided for in the Constitution.

True, although a considerable margin of discretion is given to the state when deciding on
how it is to go about fulfilling socio-economic rights, the reasonableness of the measures
that it adopts can be evaluated by a court.

15. In Mazibuko v City of Johannesburg the Constitutional Court found that the
right to water did not require the state to provide every person with sufficient water
on demand.

True, the Constitutional Court found that that the city's free basic water policy
was a reasonable measure of achieving the progressive realisation of the right
to water.
FUNDAMENTAL RIGHTS MCQ MEMORANDUM 2022 2ND SEMESTER 29 NOVEMBER
4 GROUP A & B

16. The Constitutional Court has jurisdiction to hear any matter if leave to appeal is
granted and the matter is of such importance that it ought to be considered by the
Constitutional Court.

True, section 167 of the Constitution has been amended by the Constitution Seventeenth
Amendment Act of 2012 granting it jurisdiction to hear any matter.

17. A magistrates’ court may declare a municipal by-law unconstitutional. (2)

False, because a magistrates’ court as a creature of statute may not pronounce on the
constitutionality of any law.

18. The purposive method of interpretation is in favour of rights and against their
restriction.

False, the purposive method of interpretation is the interpretation of a provision that best
supports and protects the core values that underpin a society based on human dignity,
equality and freedom.

19. In President of the Republic of South Africa and Another v Hugo the
Constitutional Court held that the decision of the President granting a remission of
sentence to all imprisoned mothers with minor children under the age of 12, but not
to the fathers, amounted to unfair discrimination.

False, because it amounted to fair discrimination as its purpose was to achieve an

important societal goal.

20. The Bill of Rights does not provide for so called “class actions”. (2)

False, section 38(c) of the Constitution provides for anyone acting as a member
of, or in the interest of, a group or class of persons.

21. If discrimination is based on a specified ground in terms of section 9(3) of the

Constitution, the unfairness would have to be established by the applicant in the
case.

True, an applicant has to prove unfairness if discrimination is based on a

specified or unspecified ground.

22. The South African Broadcasting Corporation (SABC) can invoke the right to
freedom of expression. (2)

True, because there is nothing about the nature of this right that makes it impossible for
the SABC to invoke it.

23. A decision by the Independent Electoral Commission (IEC) that prisoners will
FUNDAMENTAL RIGHTS MCQ MEMORANDUM 2022 2ND SEMESTER 29 NOVEMBER
5 GROUP A & B

not be allowed to vote in the forthcoming elections qualifies as law of general

application. (2)

False, because the Electoral Act does not deny prisoners the right to vote.

24. In the case of Minister of Home Affairs v National Institute for Crime
Prevention and the Reintegration of Offenders (NICRO) the Constitutional Court
confirmed that a convicted prisoner’s right to vote can be limited as the right would
be too costly to
implement.

False, the Constitutional Court rejected the state’s argument that allowing
prisoners the right to vote would be too costly to implement.

25. You are a legal adviser to the Pretoria City Council. The Council plans to evict a
number of squatters from its land that has been earmarked for a housing project.
The Council has the right to evict the squatters and demolish their dwellings. (2)

False, because evictions can only occur once a court order has been granted.

26. A private hospital is allowed to turn away patients who cannot pay, even in case
of an emergency. (2)

False, even though a private hospital is not bound by section 27(2) of the Constitution, it
is bound by section 27(3), the right not to be refused emergency medical treatment.

27. In Soobramoney v Minister of Health (KwaZulu-Natal) the Constitutional Court

held that Soobramoney’s chronic renal failure entitled him to emergency medical
care under sec 27 of the Constitution.

False, the Constitutional Court found that a person suffering from chronic renal
failure was not entitled to emergency medical treatment because it was an ongoing state
of affairs resulting from an incurable disease.

28. A declaration of invalidity is a constitutional remedy that has attained a

prominent position in constitutional law, and it means that the law in its entirety is
unconstitutional.
(2)

False, because a law or conduct must be declared invalid to the extent of its
inconsistency with the Constitution.

29. To prove that one is acting in the public interest in terms of section 38(d) of the
Constitution, one has to show that one is acting in the public interest and that the
public has sufficient interest in the remedy. (2)
FUNDAMENTAL RIGHTS MCQ MEMORANDUM 2022 2ND SEMESTER 29 NOVEMBER
6 GROUP A & B

True, when acting in the public interest in terms of section 38(d) of the Constitution, one
has to show that you are acting in the public interest and that the public has sufficient
interest in the remedy.

30. Vertical application of the Bill of Rights refers to the application of the Bill of
Rights to a dispute between private parties, where the constitutionality of
legislations is not at issue. (2)

False, vertical application refers to the application of the Bill of Rights to a dispute
which concerns the constitutionality of legislation, or a dispute to which the state
is a party.

31. The indirect application of the Bill of Rights means that law or conduct is found
unconstitutional and a constitutional remedy is provided.

False, the indirect application of the Bill of Rights means, that rather than finding law or
conduct unconstitutional and providing a constitutional remedy, a court applies ordinary
law, but interprets or develops it with reference to the values in the Bill of Rights.

32. A magistrates’ court may interpret legislation in accordance with the Bill of
Rights. (2)

True, because this was confirmed by the Constitutional Court case of Masiya v
The Director of Public Prosecution.

33. Textual interpretation is the only method of interpretation to establish the

meaning of a provision in the Bill of Rights. (2)

False, textual interpretation is but the starting point of interpretation with the
Constitutional Court preferring a generous and purposive method of
interpretation.
34 The Constitutional Court has exclusive jurisdiction to declare an Act of
Parliament unconstitutional. (2)

False, because a High Court or the Supreme Court of Appeal may declare an
Act of Parliament unconstitutional, but subject to confirmation by the
Constitutional Court.

35. The Department of Education is one of the few state departments that are not
bound by the Bill of Rights.

False, in terms of section 8(1), the executive and all organs of State are bound by the Bill
of Rights.

36. In Coetzee v Government of the Republic of South Africa the Constitutional

FUNDAMENTAL RIGHTS MCQ MEMORANDUM 2022 2ND SEMESTER 29 NOVEMBER
7 GROUP A & B

Court found that reading in is a remedy which is granted by a court after it has
concluded that a statute is constitutionally invalid. (2)

False, in Coetzee v Government of the Republic of South Africa the Constitutional Court
found that in relation to severance it must be possible to sever the bad from the good and
that the remainder must still give effect to the purpose of the law.

37. A provision in law requiring all medical doctors, but not members of any other
profession, to do community service qualifies as a law of general application in
terms of section 36 of the Constitution. (2)

True, the mere fact that a law differentiates between various professions does not mean
that is not a law of general application. It would only fail if the differentiation is arbitrary.

38. A structural interdict directs the violator to rectify the breach of a fundamental
right under supervision of the applicant. (2)

False, a structural interdict directs the violator to rectify the breach of a

fundamental right under court supervision.

39. False, a structural interdict directs the violator to rectify the breach of a
fundamental right under court supervision.

False, Carmichele v Minister of Safety and Security is an example of the indirect

application of the Constitution as it found that the common law of delict had to be
developed to promote the spirit, purport and objects of the Bill of Rights.

40. The Constitution makes provision that a matter can be brought directly to the
Constitutional Court. (2)

True, the Constitution makes provision that a matter can be brought directly to the
Constitutional Court, only if the matter is of such public importance or urgency that direct
access will be in the interest of justice.

41. A demarcation is part of a fundamental rights guarantee, which demarcates or

qualifies the scope of a right. (2)

True, a demarcation demarcates the scope of a right by making it clear that certain
activities or entitlements fall outside the definition of a right.

42. S v Makwanyane is a clear example of the indirect application of the Bill of

Rights where the Constitutional Court found that section 277 of the Criminal
Procedure Act 51 of 1977, was unconstitutional and therefore invalid. (2)

False, the applicable sections in the Bill of Rights were directly applied which allowed
for a declaration of invalidity in terms of section 172 of the Constitution.
FUNDAMENTAL RIGHTS MCQ MEMORANDUM 2022 2ND SEMESTER 29 NOVEMBER
8 GROUP A & B

43. A declaration of rights differs from a declaration of invalidity in that it may be

granted even when no law or conduct is found to be inconsistent with the Bill of
Rights. (2).

True, a declaration of rights differs from a declaration of invalidity in that it may

be granted even when no law or conduct is found to be inconsistent with the Bill
of Rights.

44. In the First Certification judgment the Constitutional Court confirmed the
state’s objection that the inclusion of socio-economic rights as justiciable rights
would erode the doctrine of separation of powers. (2)

False, the Constitutional Court confirmed that the inclusion of these rights would not
violate or erode the doctrine of separation of powers by encroaching on the powers of the
executive and legislative branches of the government.

45. The interpretation of the rights in the Bill of Rights involves a single enquiry in
determining the meaning of a provision in order to establish whether any law or
conduct is inconsistent with that provision. (2)

False, the interpretation of the rights in the Bill of Rights involves a two stage enquiry to
determine the meaning of a provision and if there is an infringement whether that
infringement can be justified under the limitation clause.

46. The common-law rule which criminalises gay sodomy infringes the right to
human dignity. (2)

True, because this statement was confirmed by the Constitutional Court in National
Coalition for Gay and Lesbian Equality v Minister of Justice.

47. The Bill of Rights applies to the conduct of a farm owner who refuses to provide
housing for a group of squatters. (2)

False, private owners cannot be held to have a duty in terms of section 26(2) of the
Constitution, given the nature of the duty and the fact that the section only refers to the
state’s obligation to provide housing.

48. The Constitution precludes the award of constitutional damages as the law of
delict is flexible and broad enough to provide all the relief that would be appropriate
for a breach of constitutional rights. (2)

False, nothing in the Constitution prevents a court from awarding constitutional damages
as a remedy for the violation of fundamental rights.

49. Section 9 (2) of the Constitution, which provides for affirmative action measures,
FUNDAMENTAL RIGHTS MCQ MEMORANDUM 2022 2ND SEMESTER 29 NOVEMBER
9 GROUP A & B

is an exception to sections 9(3) and 9(4) of the Constitution. (2)

False, sec 9(2) of the Constitution provides for the full and equal enjoyment of all rights
and freedoms and is part and parcel of the Constitution’s equality guarantee.

50. The “principle of avoidance” entails that indirect application of the Bill of Rights
must be considered before direct application is undertaken. (2)

True, The “principle of avoidance” entails that indirect application of the Bill of Rights
must be considered before direct application is undertaken.

51. If discrimination is based on a specified ground in terms of section 9(3) of the

Constitution, the unfairness would have to be established by the applicant in the
case. (2)

True, an applicant has to prove unfairness if discrimination is based on a specified or

unspecified ground.

52. Formal equality refers to sameness of treatment. (2)

True, because this means that the law must treat individuals the same regardless of their
circumstances.

53. The South African Broadcasting Corporation (SABC) can invoke the right to
freedom of expression. (2)

True, because there is nothing about the nature of this right that makes it impossible for
juristic persons to invoke it.

54. The general limitation clause can meaningfully be applied to all rights in the Bill
of Rights. (2)

False, because some provisions contain internal demarcations that repeat the phrasing of
section 36.

55. In the substantive stage, the onus is first on the respondent, who must show that
he/she infringed the applicant’s rights. (2)

True, in the substantive stage, the onus is first on the respondent, who must show that
he/she infringed the applicant’s rights.

56. The purposive method of interpretation is in favour of rights and against their
restriction. (2)

False, the purposive method of interpretation is the interpretation of a provision that best
supports and protects the core values that underpin a society based on human dignity,
FUNDAMENTAL RIGHTS MCQ MEMORANDUM 2022 2ND SEMESTER 29 NOVEMBER
10 GROUP A & B

equality and freedom

57. If a claim of discrimination is based on an unspecified ground in terms of section

9 of the Constitution it is presumed to be unfair in terms of section 9(5). (2)

False, if a claim of discrimination is based on a specified ground in terms of section 9(3)

of the Constitution it is presumed to be unfair in terms of section 9(5).

58 To prove that one is acting in the public interest in terms of section 38(d) of the
Constitution, one has to show that one is acting in the public interest and that the
public has sufficient interest in the remedy. (2)

True, when acting in the public interest in terms of section 38(d) of the Constitution, one
has to show that you are acting in the public interest and that the public has sufficient
interest in the remedy.

59. A declaration of invalidity is a discretionary remedy that a court could consider

to declare unconstitutional laws or conduct invalid. (2)

False, a declaration of invalidity is not a discretionary remedy as courts are obliged to

declare unconstitutional laws or conduct invalid.

60. Section 8(4) of the Constitution provides that juristic persons are specifically
excluded from the protection of the rights in the Bill of Rights.

False, section 8(4) of the Constitution provides that juristic persons are entitled to the
rights in the Bill of Rights dependant on the nature of the right and the nature of the
juristic person.

61. Textual interpretation is the only method of interpretation to establish the

meaning of a provision in the Bill of Rights (2)

False, textual interpretation is but the starting point of interpretation with the
Constitutional Court referring a generous and purposive method of interpretation.

62. A structural interdict directs the violator to rectify the breach of a fundamental
right under supervision of the applicant.

True, a structural interdict directs the violator to rectify the breach of a fundamental right
under supervision of the applicant.

63. Reading in is a constitutional remedy that is used to remedy an omission in a

statutory provision. (2)

True, because its purpose is to add words to cure the defect.

FUNDAMENTAL RIGHTS MCQ MEMORANDUM 2022 2ND SEMESTER 29 NOVEMBER
11 GROUP A & B

64. The Bill of Rights does not provide for so called “class actions”. (2)

True, class actions coincide with the narrow approach to standing which was rejected by
the Constitutional Court in Ferreira v Levin NO and Others.

65. The Constitutional Court favours a grammatical method of interpretation of the

Rights in the Bill of Rights. (2)

False, the Constitutional Court’s preferred method of interpretation is a generous and

purposive method of interpretation.

66. The Constitutional Court applies a standard of reasonableness in establishing

whether the state has achieved the progressive realization of the socio-economic
rights provided for in the Constitution. (2)

True, although a considerable margin of discretion is given to the state when deciding on
how it is to go about fulfilling socio-economic rights, the reasonableness of the measures
that it adopts can be evaluated by a court.

BONUS FEED BACK

May/June 2020 EXAM MEMORANDUM

FUR2601
Fundamental Rights
1. 4 26. 4
2. 1 27. 3
3. 3 28. 1
4. 4 29. 4
5. 2 30. 2
6. 2 31. 1
7. 4 32. 1
8. 3 33. 2
9. 1 34. 2
FUNDAMENTAL RIGHTS MCQ MEMORANDUM 2022 2ND SEMESTER 29 NOVEMBER
12 GROUP A & B

10.3 35. 2
11.1 36. 1
12.2 37. 2
13.4 38. 4
14.1 39. 4
15.1 40. 3
16.2 41. 1
17.4 42. 2
18.2 43. 1
19.4 44. 3
20.2 45. 2
21.1 46. 1
22.4 47. 2
23.2 48. 3
24.3 49. 3
25.2 50. 3

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