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Constitutional litigation in South Africa is an area of the law in that country dealing with the rules and principles applicable to cases that involve constitutional matters. It examines the constitutional jurisdiction of the Constitutional Court, the High Court and the Supreme Court of Appeal (and certain other specialist courts), and considers the various 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 the proceedings, and the duty to join the relevant organ of state in a case involving a constitutional issue. == Litigating fundamental rights == The Bill of Rights is “the principal source of substantive constraints on public power in the Constitution.”〔Currie and De Waal Handbook 23.〕 The Bill of Rights instructs the state to use the power that the Constitution gives it in ways that do not violate fundamental rights and that promote and fulfil those rights. Should it fail to comply with these instructions, it will act unconstitutionally; its actions or laws will be unlawful and invalid. Although the Constitution as a whole is mostly concerned with state power and with law, there are a number of provisions of the Bill of Rights that place duties on private individuals in certain circumstances. One of the most important principles of South African law is expressed by the maxim ubi ius ubi remedium: Where there is a right, there is a remedy. This means that the existence of a legal rule implies the existence of an authority with the power to grant a remedy if that rule is infringed. A legal rule will be deficient if there is no means of enforcing it, and if no sanction attaches to a breach of that rule. Litigation to enforce directly the Bill of Rights is one way in which breaches of the Bill may be remedied. Direct Bill of Rights litigation is most conveniently analysed as taking place in distinct stages. There is an initial procedural stage, followed by a number of stages in which issues of substance are considered. Initially, a court hearing a Bill-of-Rights case will be concerned with any procedural issues that might arise: * 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, however, 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 interpretation of 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 onus of proof is on the applicant or respondent. 抄文引用元・出典: フリー百科事典『 ウィキペディア（Wikipedia）』 ■ウィキペディアで「South African constitutional litigation」の詳細全文を読む スポンサード リンク
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