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When a person alleges a fundamental right has been infringed, the court follows these stages:
Application Stage: The court first determines if the Bill of Rights applies to the dispute. This involves checking if the applicant is entitled to the right, if the respondent is bound by the right (vertical or horizontal application), and whether the alleged conduct actually constitutes an infringement of that right. If no infringement is found, the process stops here.
Limitation Stage: If an infringement is established, the court then assesses whether that infringement is a justifiable limitation of the right. This involves applying the limitation clause (e.g., Section 36 in some constitutions) to determine if the limitation is by a law of general application and is reasonable and justifiable in an open and democratic society. If the limitation is found to be justifiable, the infringement is permissible, and no remedy is granted.
Remedies Stage: If the infringement is not found to be a justifiable limitation, the court must then determine an appropriate remedy. This could include declaring the infringing law or conduct invalid, issuing an interdict to stop the infringing action, awarding damages, or ordering other forms of relief to protect and enforce the infringed right.
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This law problem is solved step by step below, with detailed explanations to help you understand the method and arrive at the correct answer.