Development of constitutions in South Africa
The South African Constitution
Summary of the Constitution
Protecting human rights
In 1994, after decades of living under an apartheid government, the first democratic election was held in South Africa. For the first time South Africa could call itself a democracy because everyone who was a citizen of South Africa could vote in the elections. The Constitutional Assembly was constituted with the task of drawing up a Constitution to represent the interests and needs of all the people of South Africa. Included in the Constitution was a Bill of Rights which gives people rights and responsibilities.
A constitution of a country sets out:
A constitution is the highest law in the land and must be respected by all government bodies. It is higher than parliament and it can override any law that parliament makes if the law goes against the constitution. No law can go against the constitution, whether it is a customary law or a law that parliament makes.
The South African Constitution of 1996 is a document that consists of 14 chapters. It says how the government should rule the country and it has a Bill of Rights that protects the human rights of all citizens.
Democracy means that everyone has a say about how the country is run. In a democracy, the government is put into power by its citizens. The adult citizens of a democracy elect their government. One way they do this is by choosing people to represent them in a parliament. In a multi-party system, the party that gets the majority votes governs the country.
Characteristics that identify a democracy, include:
It is everyone's right and duty to participate in government.
There is no legal discrimination based on race, religion, gender or other reason. Groups and individuals have a right to their own cultures, languages, beliefs and so on.
Various opinions, beliefs, cultures, religions and so on need to be tolerated. So, while the majority of the people rule in a democracy, the rights of the minority must still be protected.
Officials that are elected and appointed in government positions are accountable to the people for their actions and decisions.
In a democracy, people and the media (newspapers, tv, radio) can get information about what government decisions are being made, who is making the decisions and the reasons for the decisions.
Citizens choose their own representatives for government. They elect these officials in a free and fair way, without corruption. For example, votes are secret. Elections are held regularly (at least every 5 years).
People can own property and businesses and they can choose their own work and join labour unions.
There must be ways to prevent government officials from abusing their power. The courts are independent from the government, and there are other bodies that have the power to act against corrupt government officials.
Democracies aim to respect and protect the human rights of all citizens. There may be a Bill of Rights to protect people's rights.
A multi-party system means that more than one political party can participate in elections, so that people can choose who they want to represent them in government.
No one is above the law, including the President. This means that the law must treat everyone in an equal and fair way.
CHAPTER 3, DEMOCRACY AND PUBLIC PARTICIPATION
Between 1910 and 1994 there have been four Constitutions in South Africa:
On 2 February 1990, the National Party government unbanned political parties, released many political prisoners and detainees, and unbanned many people, including Nelson Mandela.
On 20 and 21 December the first session of CODESA (Convention for a Democratic South Africa) was held. There were 19 political groups at this event. All parties agreed to support the Declaration of Intent, which said that they would begin writing a new Constitution for South Africa.
In March 1993 full negotiations were initiated under the name of the MPNP - Multi-party Negotiating Process - instead of CODESA. Twenty-six parties took part in the MPNP to write and adopt an interim Constitution to say how the government would govern after the elections on 27 April 1994. The MPNP drew up the Interim Constitution which was to last for two years..
After the elections in 1994 the new Parliament - working as the Constitutional Assembly (CA) – wrote the final Constitution and on 8 May 1996, it was finally adopted by the Constitutional Assembly. The final Constitution was passed by Parliament and became law on 18 December 1996.
The Republic of South Africa will be one, sovereign, democratic state founded on the following values:
The Constitution describes the social values of the country, and sets out the structures of government, what powers and authority a government has, and what rights citizens have. The Founding Provisions of the Constitution set out the principles and guarantees of democracy in South Africa.
Because the Constitution is the highest law in the land, it stops each new government from passing its own laws that contradict the Constitution. It is also much more difficult to change the Constitution than any other law. The Constitution therefore protects democracy in South Africa.
A government should never have unlimited power. Even governments which have been democratically elected can abuse the power that they have been given. There are cases of governments who were elected in democratic elections, and who then refused to allow further elections and became permanent rulers. Other governments abuse their power by killing people who are against them. The Constitution guards against governments in the future abusing the powers that they will have.
Our Constitution helps to guard against abuse of power by:
The Constitution is a law passed by Parliament and it is the highest law in the land. All other laws must follow it. Other laws are divided into statutes, common law and customary law:
Statutes are laws which are made by government. Laws made by the national parliament are called Acts of Parliament. Laws made by Provincial legislatures are called Ordinances, and laws made by Municipal Councils are called by-laws.
Common law means laws that have not been made by parliament or any other government. They are unwritten laws. Common law is based on Roman Dutch law (laws that were brought by the Dutch when they arrived in South Africa). The courts used these laws and developed them when they made decisions.
Customary laws are also unwritten laws. They are laws that apply to certain cultures or ethnic groups.
All these laws have to follow the Constitution. In other words, they cannot go against what the Constitution says. So, new laws must follow the Constitution and the government must change old laws or parts of old laws if they don't follow the Constitution. If a customary law or common law goes against the Constitution then a court will say it is invalid. In other words, it can't apply in the situation.
Mary Sibiya's husband dies. There is a customary law that says women can't inherit land from their husbands who have died. Mary is told by her husband's eldest son that he owns the land now that his father is dead. Mary wants to take her case to court because she thinks it is unfair. In this situation the court would look at the customary law and at what the Constitution says. If it thinks the customary law goes against the right to equality and non-discrimination then it will say the law is invalid.
The Constitution is much more difficult to change than other laws. Parliament can change a written law (statute) if more than 50% of the members of Parliament vote to change it.
Section 74 of the Constitution says that if Parliament wants to change the Constitution then:
The National Council of Provinces (NCOP)
Section 1 of the Constitution says that South Africa is one sovereign, democratic state founded on values of human dignity, equality, human rights and freedoms. It also says that the Constitution is supreme and that there must be regular, free and fair elections where everyone can vote.
If Parliament wants to change Section 1, or Section 74, then:
Section 1 and Section 74 are very important sections, which is why the Constitution makes it very difficult to change them.
Read Section 74 of the Constitution
The separation of powers in the Constitution means the government's functions and power is split into 3 branches. These branches each perform a separate function and are independent of each other. The purpose of this is that they keep a check on each other. Separation of powers is an important part of democracy because it prevents any elected official or government body from abusing their powers. The 3 branches are:
The national legislature is called Parliament. Parliament makes new laws and changes old laws for the whole country. Parliament is made up of the National Assembly and the National Council of Provinces. Both of these bodies are responsible for making laws.
Each province also has a legislature called a Provincial legislature which makes laws for each province.
The legislatures at national and provincial level are elected by people in national and provincial elections every five years
The national executive is made of up the President, the vice-president and the Cabinet. The national executive is responsible for carrying out the laws, in other words, for putting the laws written by the legislature into action.
The Cabinet is made up of Ministers, such as the Minister of Health. Each Minister governs a department with public officers doing the administration.
The Ministers cannot make their own laws although they can draft new laws or change old laws and ask parliament to pass these. Ministers must make sure that the policies of the government are implemented. Parliament can also ask ministers to explain why they are carrying out policy in a particular way. In this way the Executive is accountable to the legislature.
Each province also has its executive. The Provincial executives are made up of a Premier and an Executive Council.
The judiciary is made up of judges and magistrates. They make decisions in court cases, based on the laws. These decisions then help to explain what the law means in actual circumstances. In this way, the courts check the laws that the legislature makes. They also make sure they do not go against the Constitution. The Constitutional Court has the power to say that a law is invalid if it goes against the Constitution.
People can take cases to court if they believe the actions of the executive go against the law or the Constitution. In this way, the courts act as a check on the work of the executive.
The Judiciary must be independent of the Executive and the Legislature. In this way it can make decisions that are fair, even if this goes against what the Legislature and Executive want. An independent body called the Judicial Services Commission appoints judges so these judges are independent of the government in power.
The government in South Africa is divided into three spheres: national, provincial and local. The three spheres are autonomous, but in terms of Chapter 3 of the Constitution they have to work together and coordinate things such as budgets, policies and activities, particularly those that cut across all the spheres.
Chapter 4: Parliament
Chapter 6: Provinces
Chapter 7: Local government
We, the people of South Africa,
Recognise the injustices of our past;
Honour those who suffered for justice and freedom in our land;
Respect those who have worked to build and develop our country; and
Believe that South Africa belongs to all who live in it, united in our diversity.
We therefore, through our freely elected representatives, adopt this Constituton as the supreme law
of the Republic so as to -
Heal the divisions of the past and establish a society based on democratic values, social justice
and fundamental human rights;
Lay the foundations for a democratic and open society in which government is based on the will
of the people and every citizen is equally protected by law;
Improve the quality of life of all citizens and free the potential of each person; and
Build a united axnd democratic South Africa able to take its rightful place as a sovereign state in
the family of nations.
May God protect our people.
Nkosi Sikelel' iAfrika. Morena boloka setjhaba sa heso.
God seen Suid-Afrika. God bless South Africa.
Mudzimu fhatutshedza Afrika. Hosi katekisa Afrika.
The Republic of South Africa will be one, sovereign, democratic state founded on the following values:
The Constitution is the highest law in the law in the country and everyone will be bound by the Constitution. Any laws that go against the Constitution will be changed or set aside.
All South Africans are South African citizens. Every citizen is equal and has a right to the rights and privileges of being a citizen of South Africa. Everyone also has duties, obligations and responsibilities of being a citizen of South Africa.
The national flag will be black, gold, green, white, red and blue.
The national anthem will be decided by the President.
There are 11 official languages. These are: Sepedi, Sesotho, Setswana, siSwati, Tshivenda, Xitsonga, Afrikaans, English, isiNdebele, isiXhosa and isiZulu.
A Pan-South African Language Board must promote the use of all official languages, the Khoi, Nama and San languages, and sign language. It must promote and respect other languages used in South Africa such as Arabic, German, Greek, Gujarati, Hebrew, Hindi, Portuguese, Sanskrit, Tamil, Telegu, Urdu and other languages used for religious purposes.
Chapter 2 (sections 7 – 36) of the Constitution contains the human rights that will be protected in South Africa. The following section describes each of these rights and relevant laws that have been passed to give effect to individual rights.
Chapter 2 contains the human rights which will be protected in South Africa. These are put in the Constitution for these reasons:
The Bill of Rights can only be changed by a Bill passed by:
Changing or amending our Constitution
Section 7 also says the government must respect, protect, promote and fulfill the rights in the Bill of Rights.
The Bill of Rights applies to all laws. It must be followed by all branches of government and all government bodies. This means it must be followed by:
The separation of powers
It must be followed by these government bodies at all levels, in other words, National, Provincial and Local government level.
Vertical and horizontal application of the Bill of Rights
The Bill of Rights applies to all matters between citizens and the Government. This means it applies in a vertical way between government and citizens. It protects citizens from things done to them by the government.
The Bill of Rights also works in a horizontal way. This means it applies to matters between ordinary people or businesses, but only if this makes sense. It protects people from things done to them by other people.
In both these examples each person has rights that are in the Bill of Rights. Each person feels that their rights are more important than the other person's rights. The courts will have to decide whose rights are more important in each situation by taking into account the rights, the prejudice that each person could suffer in each situation and the duties attached to the rights.
It will be up to the courts to decide whose right is more important in each situation. The Constitutional Court has said each case will be decided on its own merits. People can also use ordinary laws that protect their rights, for example the Employment Equity Act that protects workers' right to equality.
1. Everyone is equal before the law and has the right to equal protection and benefit of the law.
Being equal before the law means all laws may not unfairly discriminate against anyone. Everyone is entitled to equal rights and freedoms. This also means there should be equal representation on legislative bodies (in other words, bodies that make our laws). In this way we can make sure that all the different needs of the people of the country are shown in the laws.
The right to 'equal protection before the law' means people have a right to the same opportunities and to have equal access to resources, which would allow them to be equal in the future.
2. Equality includes the full and equal enjoyment of all rights and freedoms
The government must take active steps to change the inequalities of the past by passing laws that promote the achievement of equality. This is called affirmative action.
Affirmative action means taking positive action to protect or help a person or group who has been prejudiced or disadvantaged in the past. People sometimes call this 'fair discrimination'. Section 8 of the Constitution allows affirmative action. It accepts that if we want to achieve equality it will be necessary to take positive steps to help undo the imbalances and disadvantages for individuals and groups that were caused by discrimination and oppression in the past. But, the circumstances of the person or group must justify the affirmative action.
The Employment Equity Act puts the right to equality into practice in the workplace. The Employment Equity Act makes it compulsory for employers who employ more than 50 people to introduce affirmative action measures to fix past discriminatory practices. It says people from designated groups (black people - including African, coloured and Indian - women and people with disabilities) must be given equal employment opportunities and they must be equitably represented in all work categories and levels.
LABOUR LAW, Employment equity
The Affirmative Action in the Public Service Act covers employment in the public sector (the government service). Under the Act all government departments must have affirmative action programmes. The affirmative action programme must set out steps to make the department more equally representative of previously disadvantaged groups (specifically black people, women and people who are disabled).
3. Neither the state nor any person can unfairly discriminate against someone, either directly or indirectly. It is against the law to discriminate against anyone on any of the following grounds:
It is not always the case that an action which treats people differently is an infringement of the right to equality. The Constitutional Court has decided that there are a series of questions that need to be asked before it can be found that a particular action amounts to discrimination. These questions are:
The Constitutional Court has decided that there are a series of questions that need to be asked before it can be found that a particular action amounts to discrimination. These questions are:
The Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 creates a general prohibition against unfair discrimination and says what discrimination is against the law in different sectors of society including: in employment, education, health care, land, housing and accommodation, insurance, pensions, services, associations and partnerships, clubs, professions and the media. The Act defines each sector and says what discrimination is not allowed in each of these sectors. If someone is charged with unfair discrimination it is up to the person who is doing the discriminating (not the person discriminated against) to prove that the discrimination was reasonable and justifiable. The courts will decide if an action was unfair by looking at how the action affected the person bringing the claim The Act also says how people who have been discriminated against can be compensated for this.
Equality Courts can hear cases of discrimination and have powers to conciliate and mediate, grant interdicts, order payment of damages or order a person to make an apology. (See www.doj.gov.za and click on Equality legislation for contact details of Equality Court Managers in the different provinces).
A case of unfair discrimination was brought against the President when he said that certain women and children should be released from prison as part of an amnesty programme. Hugo, the person bringing the claim of unfair discrimination, said it was unfair that men weren't given the same treatment as women.
The argument brought by the President against Hugo was that the women were needed to look after the children and that is why it was fair that they should be released rather than the men. The court said the action taken by the President was not unfair.
Everyone has dignity and the right to have their dignity respected and protected.
Everyone has the right to life.
The Criminal Procedure Act includes the right for police (or someone legally entitled to make an arrest) to ‘shoot to kill’ in certain situations. Section 49(1) of the Act deals with the use of force to carry out an arrest. Section 49(2) says that ‘deadly force’ may be used in certain circumstances to carry out an arrest.
The Constitutional Court recently looked at the use of force to make an arrest and at how this impacted on a person’s rights. In the case of S v Walters, the Court had to look at balancing peoples’ right to life, dignity and bodily integrity and the interests of a just criminal system.
The Court found that a person making an arrest is not entitled to use a firearm in the process unless:
The Court said the provisions relating to the use of ‘deadly force’ for arrests were too wide and were therefore unconstitutional. For example, using ‘deadly force’ in the case of a person caught shoplifting would not be justifiable.
Using force to make an arrest or to stop you escaping from arrest
COURTS AND COURT CASES, Using force to make an arrest.
The death penalty
The debate about the death penalty is based on the right to life, and the right not to be treated or punished in a cruel, inhuman or degrading way (section 12). Those who are against the death penalty argue that the state cannot execute (kill) criminals even if they have taken someone else's life. Others who want to keep the death penalty say that the death penalty can be allowed because someone who has taken another human being's life has given up the right to their own life.
The Constitutional Court has said that the death penalty goes against a person's right to life. So, a court cannot pass the death sentence against anyone.
Termination of pregnancy (abortion)
The debate about abortion is based on the right to life, and the right for women to make decisions about reproduction (having children) and to have control over their own bodies (Section 12). People who argue against abortion say the unborn baby has the right to life from the moment the egg is fertilised. People who argue for abortion say that women have the right to make decisions about their own bodies, and that the decision as to when life begins (in the womb or at birth) is for each individual to make.
Parliament has passed a law called The Choice on Termination of Pregnancy Act. Up to a certain stage of pregnancy, women can now choose to end a pregnancy. Government hospitals should provide facilities to carry this out.
This includes the following rights:
Violence and abuse in the home
Everyone has the right to be free from all forms of violence in the home. This right ensures that the government and the police must take measures to prevent domestic violence, for example, abuse of women and children in the home.
This means giving beatings or whippings for punishment. The Constitutional Court has decided that punishing people and children by whipping them or giving them a caning goes against this right.
The Abolition of Corporal Punishment Act (1998) says beating a child as a form of punishment is illegal because it goes against a child's right to dignity and his/her right not to be treated in a degrading way.
No form of slavery or forced labour is allowed.
Everyone has the right to privacy, including the right not to:
The Interception and Monitoring Prohibition Amendment Act (1996) prevents people's conversations being intercepted.
Everyone has the right to believe or think what they want, even if their opinion is different to the government. Everyone has the right to practise the religion they choose.
Government institutions, like schools, can follow religious practices (like having prayers in the morning) but this must be done fairly and people cannot be forced to attend them.
A person can also get married under the laws of their religion. But these cannot go against the Bill of Rights. For example, a woman who marries according to customary law does not lose her rights of equality when she gets married.
Everyone has the right to say what they want, including the press and other media.
Limiting this right
There are certain kinds of speech that are not protected. These are:
Hate speech means spreading hatred and encouraging people to act violently or harmfully towards other people because of their race, gender, ethnic origin or religion. In other words, hate speech encourages people to discriminate against other people.
Everyone has the right to assemble with other people, hold a demonstration, picket or present petitions. They must do this in a peaceful way and they may not carry weapons.
The Regulation of Gatherings Act (1993) says organisers of a demonstration must give the authorities at least 7 days notice. The organisers must give the names, purpose of the event, the place of the gathering or the route of the march and the numbers of people expected to take part. The police can disperse a crowd, using reasonable force, if they believe there is a danger to people or property.
Everyone has the right to associate with whoever they want, for example, workers joining together and meeting in a trade union.
Everyone has the right and is free to make political choices, such as the right to:
Every adult citizen has the right to free, fair and regular elections. They have the right to:
Your citizenship is protected and cannot be taken away from you.
Everyone has the right to:
Every citizen has the right to:
Every citizen has the right to choose their trade, occupation or profession freely. Laws can be passed to regulate how people practice their trade, occupation or professions.
SMALL BUSINESS LAW
Everyone has the right to fair labour practices.
Workers have the right to:
Employers have the right to:
Trade unions and employers' organisations have the right to:
The right to strike and lock-out
The right for workers to strike is written in the Constitution. The right for employers to lock out their workers is not included in the Constitution. But, this does not mean that employers do not have the right to lock-out. The Labour Relations Act says that employers have the right to lock-out in certain situations.
Everyone has the right to:
The government must pass laws that:
No one can have their property taken away from them unless this is done according to a law.
Expropriating private property
This means the government takes a person's land away from them. Property can be expropriated by the government if:
If the government takes land from a person they must pay this person for it. This is called compensation.
There are certain things to think about when a landowner and the government are deciding how much compensation to pay for the land. These are:
The government wants to build a dam to provide water for a community. They want to build the dam on your property. The government can take the land from you but they must pay you for the land. The amount of money the government will pay can either be agreed between you and the government, or it can be decided by a court if you cannot agree.
Section 25 also deals with land reform. It says the government must make laws and take other steps, to help people or communities to get land to live on, and to claim back land, if they lost it after 1913 and they lost it because of an apartheid law. Up to December 1998, in such cases people were able to claim the land back or compensation for the land.
LAND AND HOUSING, Land restitution: access to land if your land was taken away by an apartheid law
If a person has been living on land which they were not allowed to own because of apartheid laws, they will now be able to own this land or be paid compensation for it. An example of this is people who live on farms as labour tenants. The Extension of Security of Tenure Act has been passed by the government which gives labour tenants certain rights in terms of Section 25.
LAND AND HOUSING, Extension of Security of Tenure Act
Everyone has the right to have access to adequate housing. The government must take reasonable steps within its available resources to provide people with housing and access to land.
Limitations on this right
Section 26 says the government must take steps to provide housing 'within its available resources'. This means the government has a duty to provide what it can afford.
In a recent court case, Irene Grootboom took the government to court on grounds that Section 26 of the Constitution says people have a right to have access to housing. The Constitutional Court said there are three parts that make up the government's obligation to provide housing.
The Court ordered the government to take positive steps to meet its obligations under section 26(2) of the Constitution, particularly where people are living in inhumane conditions or crisis situations.
No one can be evicted from their home or have their home demolished, unless a court has heard the person's case and decided that he or she must leave. In this case the court must give a court order.
LAND AND HOUSING: Extension of Security Act; Prevention of Illegal Eviction from and Unlawful Occupation of Land Act
Everyone has the right to have access to:
The government must pass laws and have policies that provide welfare assistance for the people who need it the most.
Limitations on these rights
Section 27 says the goverment must take steps 'within its available resources'. This means the government must only provide what it can afford. But, the section says the government must improve these services over time.
Everyone is allowed to have emergency medical treatment.
A child is anyone who is under the age of 18. Every child has the right:
Whenever a decision is made about a child, the most important thing that must be thought about is what would be in the best interests of the child.
FAMILY LAW AND VIOLENCE AGAINST WOMEN
Children's rights if they are detained
A child may only be detained if it is absolutely necessary, and it must be for the shortest possible time. A child has the right to be kept separately from other detained people who are over 18. The child must be treated and kept in conditions that take into account the child's age. A detained child also has all the rights of any other detained person.
Section 35: Arrested, detained and accused persons
Everyone has the right to:
Everyone has the right to be taught at a government school in their own language but only if this is practical and if the government can afford it.
The government must take steps, for example by passing laws, that will help people who want further education.
Every person has the right to use their own language and follow the culture that they choose. A person has the right to enjoy their culture, use their language and form their own cultural associations in civil society. But they cannot do anything that goes against the rights that other people have.
Communities have the right to enjoy a shared culture, practise a shared religion and use their language. But they cannot do anything that goes against the rights that other people have.
Everyone has the right to have access to:
In the past accused people were not allowed to have access to the police dockets that included witnesses' statements, reports of the investigation, and other information about their cases, unless the state agreed to give it to them. Now the Constitutional Court has said an accused person has the right to access to the docket, because Section 32 of the Bill of Rights gives people the right of access to information they need to protect or exercise their rights.
The Promotion of Access to Information Act gives people a right of access to all kinds of government information, providing very limited reasons why officials can refuse to give such information. This Act is a good weapon against corruption and makes the government transparent and accountable.
The Protection of Disclosures Act gives protection to 'whistle-blowers' - people who speak out against corruption, dishonesty or bad administration and who believe at the time that what they are saying is the truth. They are protected from internal disciplinary action, intimidation and harassment if they have 'blown the whistle' on someone or a business.
Section 33 guarantees that administrative action will be reasonable, lawful and procedurally fair. It also makes sure that you have the right to request reasons for administrative actions that negatively affect you. The section says government must pass laws that will:
The Promotion of Administrative Justice Act 2 of 2000 (PAJAP) says that all decisions of every administration at every level of government must be lawful, procedurally fair and reasonable and must follow the rules in the Act. Examples of administrative action are: applying for an ID or birth certificate, applying for a first time home owner’s subsidy, applying for a work or residence permit, applying for refugee or asylum seeker status. The Act applies to all government departments, the police and army and private people who exercise public powers or perform public functions (for example, ESKOM, Telkom and the SABC). A person whose rights have been wrongly affected can ask for reasons to be given in writing to explain the administrative action taken. The Act also provides for review of administrative action by a court or tribunal.
The right to just administrative action therefore protects people against unlawful, unjust and unreasonable decisions from government officials or department.
What are the requirements of lawfulness, procedural fairness and reasonableness in terms of the PAJA?
Lawfulness - When the state has a legal duty to act in a certain way and fails to do so, it is acting unlawfully.
Procedural Fairness - The procedure that the government follows in making an administrative decision must be fair. If there is a set of established rules that the government must follow in coming to the decision then these must be properly followed otherwise the decision can be challenged. However, the common law rule – audi alteram partem rule - is one rule that the government must always follow in making a decision. This rule says that a person whose rights are or may be affected by an administrative decision must be allowed to state his or her concerns before the decision is made.
Reasonableness - Whether an administrative action is reasonable or not depends on the circumstances surrounding the decision, i.e. the environmental considerations against which the decision was taken.
The type of questions that a court will ask to test whether the decision was reasonable or not are:
Certain people in your community live in an informal settlement near the coast which is close to an expensive coastal holiday resort where people from the city own holiday houses. A chemical company has been granted permission by the local authority to set up a chemical production plant very close to the informal settlement.
It is likely that this chemical plant will harm the environment and possibly the health of people in the community. These people want to find out how the chemical company got permission to set up the production plant, and what other action the chemical company may be thinking of taking. They have formally requested the local authority to provide them with information about the new chemical production plant so that they can use the information to comment on whether they think the permission for the plant should have been granted or not. Any decision taken by the local government is an administrative decision.
What can the community do?
Other rights that are potentially affected in this example include the right to equality if the nearby (wealthy) resort has not been negatively affected in the same way as the informal settlement, and the right of access to information because the community's request for information about the chemical production plant has been ignored.
What can you expect from the administration?
When you apply for something (for example, a social grant) or when the adminsitratino decides to request something from you, you can expect to be:
What can you do?
If you think that the administrative decision taken against you might be wrong, you can:
You must be given reasons within 90 days of the administrator receiving the request. You can ask for the reasons to be given in writing.
If you are not satisfied with the reasons given, then you can use internal appeal procedures if there is one. Some departments have an internal appeal procedure which you can use, for example, the Department of Home Affairs has an Appeal Board. You have to use any internal appeal procedure before taking any other action. The department must explain how the procedures work and how to make an appeal.
If there is no internal appeal procedure, or if you have used the procedure and are still not satisfied, you can ask a court to review the decision. The must be done:
Taking a matter of review is expensive. Cheaper ways of finding assistance include:
Everyone has the right to have any legal problem or case decided by a court or an independent body.
If a person is arrested, they have the following rights:
If a person is detained (kept in jail or a police cell), either while they are waiting for their trial, or after they have been sentenced, they have the right to:
A person accused of committing a crime must be given a fair trial. This includes the right to:
If the state gets evidence against a person by going against one of their rights, this evidence will not be allowed in court.
The rights in the Bill of Rights can be limited if this is reasonable and justifiable in an open and democratic society that is based on human dignity, equality and freedom.
These are the factors that a person or court must taken into account if a right is to be limited:
Conflicts in rights
It may be necessary for a government to declare a state of emergency to deal with a major problem facing the country. During a state of emergency the Bill of Rights is usually affected.
The government can only call a state of emergency when:
The state of emergency and any laws passed as a result of the state of emergency can only last for 21 days, unless the National Assembly extends this. At least two-thirds (66%) of the members of the National Assembly must agree to extend this. They can extend it for 3 months at a time.
There are certain rights that cannot be limited at all, even during a state of emergency. Some of these are:
The following people can take a case to court, if they believe that a right has been threatened or infringed:
When the courts are deciding a case on the Bill of Rights, they must promote the values of an open and democratic society based on freedom and equality. They must look at international laws (such as the Universal Declaration on Human Rights) and at the way courts in other countries have decided similar cases.
Government works at national, provincial and local levels.
The spheres of government
All spheres of government must:
This chapter looks at:
Parliament is also called the national legislature. Parliament makes laws for the country. These laws must not conflict with the Constitution and all citizens must follow them.
Parliament has 2 houses:
How is the National Assembly made up?
The National Assembly consists of between 350 and 400 Members of Parliament.
The people of South Africa vote in general elections for people to represent them in the National Assembly. Only people who are 18 years or older can vote in an election. General elections are held every 5 years.
Members of the National Assembly are elected according to the system of proportional representation. This means people vote for the party and not for a person.
Who can be a member of the National Assembly?
To be a member of the National Assembly a person must be:
Permanent delegates to the National Council of Provinces or members of a provincial legislature or municipal council cannot be members of the National Assembly.
If a member of the National Assembly joins another party then he or she will have to leave the National Assembly. Another person from the party that the person has left will take over the seat.
What does proportional representation mean?
How does the National Assembly make decisions?
The National Assembly makes decisions by voting. If the decision is about a new law (a bill), more than half of the members of the National Assembly must be present before there can be a vote. If the decision is about anything else, at least one third of all the members must be present. The President is not allowed to vote in the National Assembly.
The NCOP represents provincial and local government interests in Parliament and in the Executive. It works with the National Assembly to make and pass new laws and to change old laws.
How is the NCOP made up?
The NCOP has 90 members. Each Province sends 10 delegates. The 10 delegates are:
The NCOP elects a Chairperson and two Deputies.
The National Assembly can pass laws on any matter, including a matter in the functional areas listed in Schedule 4. But it cannot pass laws on a matter in the functional areas listed in Schedule 5, unless it becomes necessary for reasons such as maintaining national security.
How a bill becomes an act
A bill is a draft law that has not been passed by Parliament. 'Passed' means approved. An act is a law that has been passed by Parliament.
A bill can be introduced in the National Assembly. A Cabinet member or Deputy Minister, a parliamentary committee, or a member of the National Assembly can introduce a bill to Parliament. The National Council of Provinces (NCOP) can introduce a bill if it is about something that falls under the powers of the provinces.
A bill that is passed in the National Assembly must be referred to the NCOP. A bill passed in the NCOP must be referred to the National Assembly.
These are the general rules about how a bill becomes an act:
If the NCOP approves the bill, it refers the bill to the National Assembly to be passed.
If the bill is about something that only the National Assembly can make law on:
The NCOP can approve the bill, or can suggest changes but the National Assembly decides what the bill finally says.
Each member of the NCOP has one vote, and a simple majority of members is needed to approve the bill. (A simple majority means half the votes plus at least one vote must be for the bill.)
If the matter is one that provinces can make law on:
The NCOP can approve the bill, suggest changes or reject the bill.
To approve the bill, each province has one vote and at least five of the nine provinces must vote in favour of the bill.
If the NCOP suggests changes or rejects the bill and the National Assembly doesn't agree, the NCOP can refer the bill to a mediation committee to resolve any differences.
What happens if a Bill is, or might be, unconstitutional?
The national executive is the body which puts the laws written by Parliament into action. The executive cannot make new laws. The national executive is called the Cabinet. The Cabinet consists of the President, the Deputy President and ministers.
The President is the head of state, head of the Cabinet and Commander-in-chief of the Defence Force.
The President is elected by the National Assembly from among its members.
The Cabinet consists of the President, the Deputy President, and all the ministers, for example, the Minister of Education, the Minister of Health, and so on. Each minister has a government department that he or she is in charge of.
The President selects and appoints the Deputy President and the ministers in the Cabinet. The President can also appoint Deputy Ministers to assist members of the Cabinet. The President can dismiss any of these people he or she has appointed.
The Deputy President and the ministers are all accountable to the President and to Parliament. The executive has to follow the policies of the government. For example, the Minister of Education and his or her department must carry out all the laws that Parliament makes about education and must carry out the policies of the government on education. The different departments can refer bills to Parliament to have them made into laws.
There are 9 provinces:
Each province has its own provincial government. This is made up of a provincial legislature and a provincial executive.
The provincial legislatures write laws called ordinances for their provinces. Only people living in the province and people visiting it will have to follow these laws. The kinds of laws provincial legislatures are allowed to pass are discussed under Powers of the provinces below.
Members of provincial legislatures are elected during the national general elections which take place every 5 years. There will be between 30 and 80 members in each provincial legislature.
The provincial executives are made up of the Premier and the Executive Council of that province. The Executive Council consists of the Premier and not more than 10 others appointed by the Premier.
Provincial governments have certain powers to make decisions for their provinces. Provinces can make their own constitutions and their own laws, but these must follow the national Constitution.
Provincial legislatures can pass laws on any matter in the functional areas listed in Schedules 4 and 5 of the Constitution.
National and provincial government share powers to make laws about some issues, like health, welfare and education. National government is responsible for setting national standards on these issues, so laws written by provinces must follow national standard-setting legislation.
Local governments make decisions and laws for their own municipal areas. Municipal councils carry out the executive and legislative functions of local government. Local governments make by-laws, but these must not go against the Constitution or any act of Parliament or any provincial ordinance.
Municipal councils are elected every 5 years in local elections. People who can vote must live in the area covered by the local government or own property in the area, and they must be registered as a voter in the area.
Local governments have the right to administer the local government matters listed in Part B of Schedule 4 and Part B of Schedule 5, and any other matter referred to them by national or provincial laws.
LOCAL GOVERNMENT for information on local government powers and duties
The Constitution says the courts are independent. This means that the national executive and Parliament cannot interfere in what the courts do. Everyone, including the government must follow the decisions of the courts.
The courts are:
The Constitutional Court is made up of a President, a Deputy President and nine other judges. The judges can only be judges in this court for up to 9 years. The Constitutional Court is the highest court to hear cases about the Constitution. All other courts must follow the decisions of the Constitutional Court. For example, the Constitutional Court says the death penalty is not allowed because it goes against people's right to life, so no other court can sentence anyone to death.
What cases can go to this court?
There are certain cases that only the Constitutional Court can make decisions about. Some of these cases are:
Any court can hear a case about the Constitution, including cases about abuses of rights. Courts can do the following:
The Supreme Court of Appeal and the High Courts can make an order about how unconstitutional a law is. But they can only provide 'temporary relief' until the case goes to the Constitutional Court. Only the Constitutional Court can confirm that it is unconstitutional and therefore invalid.
Who can take a case to the Constitutional Court?
Anyone can take a case directly to the Constituitonal Court. But it is difficult for a person who is not a lawyer to do this because of the legal questions involved. So, it would be better to get a lawyer to help take a case to Court.
Taking a case to the Constitutional Court
Anyone who wants to bring a case to the Constitutional Court must usually start in a High Court. In certain cases the state will provide Legal Aid. A High Court will hear the case and it has the power to make a decision. The person can usually appeal against a decision of the High Court. The appeal will be heard in the Constitutional Court.
Resources for Constitutional Court contact details
Proceedings in the Constitutional Court
The Constitution says that at least 8 judges must hear any case that goes to the Constitutional Court. Decisions of the Court are reached by a majority vote of the judges hearing a case.
The Constitutional Court works with written arguments presented by both parties to a dispute. In other words, each party writes down its argument and submits this to the Court. In Court the judges listen to the arguments of each party but they do not hear evidence or question witnesses. They make their decisions based on the written arguments.
The Constitutional Court does not decide directly whether an accused person is guilty or whether damages should be awarded. The ordinary courts will decide this. The Constitutional Court has to decide on the meaning of the Constitution in relation to a dispute. The Court has to interpret the relevant section in the Constitution and see how it applies to the case.
Sessions of the Constitutional Court are open to the public and press.
Constitutional Court examples
The Supreme Court of Appeal has a Chief Justice, a Deputy Chief Justice and other judges. This court is the highest court of appeal in all cases, except cases about the Constitution. It decides on appeals from lower courts and decisions of this court must be followed by all lower courts.
Each province has a High Court. Some provinces may also have 'branches' called local divisions.
If a person is unhappy about a decision of a High Court he or she can appeal to:
APPEALS AND REVIEWS
Each area in the country has its own magistrate's court. These courts deal with less serious criminal and civil courts. If a person is unhappy with the decision of a magistrate he or she can appeal to a High Court of that province.
The President consults the Judicial Services Commission and leaders of parties in the National Assembly. The President then appoints the President and Deputy President of the Constitutional Court, and the Chief Justice. The Judicial Services Commission is made up of the following people:
The Constitution says there will be 7 government institutions to protect people from abuse by the government. They are referred to as the protection mechanisms. It is their job to make sure that the government does its work properly.
Protecting human rights
These institutions are independent and report to Parliament at least once a year. They are:
The Land Claims Commission has been set up to protect people's land rights under Section 25 of the Bill of Rights.
Land Claims Commission (LCC)
Public adminstration refers to people who work for the government, also called the public service. This includes the police, army and people who get a salary from the government, including all the government departments such as the Department of Education.
The public service must put the policies of the government into practice. People who work in the public service will get a pension. Employees of the public service cannot be treated better or worse than others just because they support a political party.
This is an independent body. It is made up of one representative from each province and it must account to Parliament. Its job is to monitor, evaluate and oversee the organisation and administration of the public service. For example, it investigates grievances of employees in the public service, it ensures that public officials follow correct procedures, and so on.
The security services will consist of one defence force, a police service and an intelligence service. No other army apart from the South African army will be allowed. National security is controlled by parliament and the national executive.
The security services must follow the law and the Constitution and any international documents signed by South Africa. They are there to protect the people and the country. They are not allowed to act for or against a political party.
COURT CASES, Independent Complaints Directorate (ICD)
The Constitution recognises traditional leaders and indigenous or customary law. It says the courts can apply customary law if it is appropriate in a case. But, customary laws cannot go against the Constitution. For example, a customary law that goes against the Bill of Rights will not be acceptable in a court.
The Constitution establishes a National Council of Traditional Leaders and Provincial Councils of Traditional Leaders. These councils allow traditional leaders to play an advisory role on matters relating to traditional leaders and customary law in national and provincial governments.
The Constitution sets up a National Revenue Fund. All money raised by the national government must go into this Fund, for example taxes, fines and donations. Parliament and provincial governments get their money from this Fund.
This Commission is an independent body, that is subject only to the Constitution and the law. It must not be biased in its work. It can advise and make recommendations to any level of government about how to spend their money. It can also give advice about how much money should go to provincial and local governments. It must follow all laws and the Constitution.
The government gets taxes and levies from people who work (income tax), from companies and from VAT (the tax that people pay on goods that they buy). This money goes into the National Revenue Fund.
The Minister of Finance and the Department of Finance prepare the budget for the country. The national budget says how the money in the National Revenue Fund will be allocated.
The Finance and Fiscal Commission advises the government on how much money should be allocated to the provincial and local governments.
The budgets are debated in Parliament. Parliament can approve or reject how the money will be allocated.
The money that has been budgeted for the different departments, such as housing, education, environment, is given to these departments.
International agreements only become law in South Africa once they are made law by an act of Parliament and they are published in the Government Gazette.
The National Assembly and provincial legislatures can pass laws on any matter, including a matter in the functional areas listed in Schedule 4.
|Administration of indigenous forests
Airports (not international or national)
Animal control and diseases
Casinos, racing, gambling and wagering, excluding lotteries and sports pools
Education at all levels, excluding tertiary education
Indigenous law and customary law
Language policy and the regulation of official languages
Nature conservation, excluding national parks
Public works only in respect of the needs of provincial government
Regional planning and development
Road traffic regulation
Urban and rural development
The following are local government functions. The national government and the provincial governments have the legislative and executive authority to see that municipalities perform these functions.
Child care facilities
Ferries, jetties, piers and harbours
Municipal public transport
Municipal public works
Stormwater managements systems in built-up areas
Water and sanitation services (domestic water use and sewage disposal systems)
Archives that belong to the provinces
Libraries (but not national libraries)
Museums (but not national museums)
Provincial cultural matters
Provincial recreation and amenities
Provincial road and traffic
The following are local government functions. The provincial governments have the legislative and executive authority to see that municipalities perform these functions.
|Beaches and amusement facilites
Billboards and display of advertisements in public places
Cemeteries, funeral parlours and crematoria
Control of public nuisances
Control of businesses that sell liquor to the public
Facilities to accommodate and bury animals
Licensing of dogs
Licensing and control of businesses that sell food to the public
|Local sport facilities
Municipal parks and recreation
Refuse removal and refuse dumps
Traffic and parking
Chapter 2 of the South African Constitution contains the Bill of Rights. The rights in the BOR are discussed in detail in the summary of the Constitution
Chapter 2: The Bill of Rights
Section 8: Application of the Bill of Rights
Section 36: Limitations on rights
Section 37: States of emergency, about suspending rights
Section 39: Interpreting the Bill of Rights
Hearing cases about the Constitution
In this section we will look at the following aspects of the South African Bill of Rights:
Human rights are also called natural rights. It is argued that they belong to people just because they are human beings. People are entitled to them regardless of where they live in the world or of their position in society. It doesn't matter what a person's race, sex, age, class, language, beliefs, culture or religion is, or how much money or education a person has, we all have the same human rights.
There are many international documents that deal with human rights, for example, the Universal Declaration of Human Rights. Many countries with different social, political and economic systems have signed this document. This means that even though they may have different ways of doing things and different beliefs, they believe basic human rights apply to everyone.
Most people would support human rights that are based on basic values, such as respect for human life and human dignity. But not all people agree on the interpretation of such rights and how they should be put into practice. There is also debate about which human rights are most important and which are less important.
The Bill of Rights in the South African Constitution contains the human rights that will be protected in South Africa.
Legal rights are rights laid down in laws. Laws are made by parliament and they may give people certain rights. For example, it was once a legal right to own slaves because there were laws that allowed this, even though it went against the human rights of the people who were slaves.
There are also moral rights. For example, even though people over a certain age may have a legal right to drink alcohol, others may believe that they do not have a moral right to do so. Different people have different ideas of what is moral and what isn't moral. Some communities may practise moral codes that go beyond what the law says.
During the apartheid years many people did not have a legal right to use certain community facilities but they had a moral and human right to do so.
People may engage in campaigns to turn what they believe are moral rights or human rights into legal rights.
Rights are often divided into different categories such as first, second and third generation rights, or civil and political rights, socio-economic rights and collective and cultural rights. But while it may be convenient to put these rights in categories, in reality they all overlap with each other and are completely interdependent. So, even if a single right seems more important than another, they still depend on each other to be effective. For example, for people to be able to use their right to vote effectively, they must have other rights like the right to attend political meetings, to have freedom of speech and to be free to move anywhere. Political rights are also strongly linked to socio-economic rights: if people don't have food to eat, a roof over their heads, or running water, , then they might see little value in their right to vote or to join a political party.
The three generations of rights are traditionally described as follows:
First generation = civil and political rights and freedoms (examples include, the right to life, to vote, freedom of speech, to assemble and to demonstrate)
Second generation = social and economic rights (examples include the right to basic services, access to housing, land, health care, education and the right to earn a living)
Third generation = collective rights and cultural rights; these are also called community rights (examples include environmental rights, the right of all people to self-determination and the right to development).
For every right that a person has there is usually a responsibility that is connected to that right. For example, you have a right to freedom of expression, but a responsibility not to tell deliberate lies about someone else. There is a general responsibility to respect and be tolerant of other peoples’ rights. The government also has responsibilities in terms of rights. These are examples of some rights and responsibilities:
Your duty: to respect other people even if they are different to you, and to accept that they are equal to you.
The state's duty: to make laws apply equally to everyone regardless of their race, colour, gender and so on.
Your duty: not to hurt someone so as to threaten their life.
The state's duty: to pass a law to stop the death sentence.
Your duty: not to abuse your partner or children in the privacy of your home.
The state's duty: to ban the use of torture to get information from people.
Your duty: not to allow your children to go to work when they are very young.
The state's duty: to pass a law that sets a minimum wage and age for people who are working.
Your duty: to knock on someone's door before entering their home.
The state's duty: to keep people's information about themselves private and confidential, for example a woman who wants to have an abortion should know that this information will be kept private.
Your duty: not to carry a gun or dangerous weapon in a march or demonstration.
The state's duty: to make it safe and secure for people who want to have a demonstration, for example by diverting traffic, and confiscating guns and weapons.
Your duty: to accept anyone who comes and lives next door to you as your neighbour.
The state's duty: to issue passports and identity documents to all citizens who apply.
Your duty: to send all your children to school.
The state's duty: to build enough schools and provide enough teachers so that everyone can go to school and get a proper education.
The state's duty:
Your duty: not to throw rubbish on the ground.
The state's duty: to pass laws that stop factories from dumping their rubbish into our rivers.
There are times when one person's right will conflict with the rights of another person. The South African Bill of Rights says it is acceptable in certain situations to limit rights, if it is reasonable to limit them in the situation, and it is justifiable in an open and democratic society that is based on equality and freedom. Where there is a conflict of rights and each person thinks their right is more important than the other person's right, the courts may be approached to decide whose right is more important in a particular situation.
Limitations on rights
It is important to remember when there is a conflict between two people's rights, that it is acceptable to either limit one person's rights or limit both people's rights.
One of the ways that people can avoid conflict is by being more tolerant of other people's rights and views. A tolerant person will accept that other people have different opinions to them and will allow them to express these without getting aggressive towards the person.
People should be encouraged to try and resolve their own conflicts before turning to the courts or other ways.
These are some examples of how people can resolve conflicts:
Human rights are set out in many international documents. When a country ratifies a document, it agrees to be bound by the rules in the document and makes the document a part of its own laws. If a country has signed but not ratified a document it means it supports the rules in the document and promises not to commit acts which would defeat the purpose of that document. It can mean the country plans to go through a process in order to ratify the document later.
South Africa has signed some international documents and ratified others. These are some of the most important international human rights documents:
2,3. Equal treatment for all
19-24. These articles recognise the rights of entire peoples. This means:
27-29. These articles cover the duties of individuals towards the community and state. Each person must exercise his or her rights and freedoms without damaging the rights of others. TheCharter says your individual duties are to:
1. A child is a person under 18 years.
21. Adoption must only be carried out in the best interests of the child.
A human rights culture means people in a society understand what their rights are and understand that they have a duty to respect and tolerate other people using their rights.
The Bill of Rights guarantees our rights and says we can defend our rights in court. This will go a long way towards creating a human rights culture. But building a human rights culture depends mostly on the attitudes of individuals, and the respect and tolerance that they show towards other people.
People are tolerant when they learn to accept and live with the differences in other people, whether it is their attitudes, actions, cultures, religions, sexual orientation (gay or lesbian), and so on. For example, a tolerant person will accept that other people have different opinions to their own, and they will allow them to express these without shouting at them or assaulting them.
So, tolerance means:
The protection mechanisms are also called the 'state institutions supporting constitutional democracy' in the Constitution. Chapter 9 of the Constitution creates 7 institutions for protecting peoples' rights and for making sure that the government does its work properly. The institutions are:
Other institutions that also protect people's rights are:
People can also take cases about human rights abuses to the magistrate's courts and High Courts. If you take a case to the magistrate's court or High Court, then you can represent yourself but usually you would need to pay a lawyer to prepare the papers and to send them to court. This costs a lot of money. The protection mechanisms are free, and people can send in their complaint to be investigated without having to go to a lawyer.
The Public Protector represents citizens and watches over the activities of government officials to stop them abusing their powers. The Public Protector is an independent official and is accountable to the Constitution. Public Protector officials must act in a transparent way and must send a report of their activities and findings to Parliament at least once a year.
One person is appointed by the government as the national Public Protector. He or she has a department with staff who do the work in the national office and in the provincial offices.
Each province can have their own Public Protector.
A parliamentary committee consisting of one member of each political party in Parliament nominates someone to be the Public Protector and the National Assembly and the National Council of Provinces must approve the nominations. The Public Protector will stay in office for 7 years but he or she can be removed from this position by the President on grounds of misbehaviour, incapacity or incompetence.
A provincial Public Protector is appointed by the provincial premier in consultation with the national Public Protector. The person who is nominated must be approved by a two-thirds majority of the provincial legislature.
A Public Protector must:
The Public Protector has the power to do the following:
A person who is being investigated by the Public Protector has the right to give their side of the story and to be represented at the hearing.
Any person can make a complaint to the Public Protector. If you want to make a complaint you must make an oral or written statement saying:
The services of the Public Protector are free.
The SAHRC promotes respect for human rights and protects human rights. It must educate people about human rights. It can investigate complaints about human rights abuses, it can arrange for someone to have a lawyer to defend their rights, and it can take cases to court.
The SAHRC is an independent body and is only accountable to the Constitution and Parliament. The SAHRC must send a report of its activities to Parliament at least once a year.
The SAHRC consists of a chairperson and 10 members. These members must be South African citizens, fit and proper people, and broadly representative of the South African community. The members are nominated and approved by the National Assembly and the National Council of Provinces. Members of the SAHRC can be commissioners for 7 years.
Anyone can make a complaint to the SAHRC. If you want to make a complaint you must do the following:
The CGE will protect men and women who complain that they have been discriminated against because of their gender or sex. The CGE will also advise lawmakers on laws that affect equality between men and women, and on the position of women as citizens.
The CGE is an independent body and is only accountable to the Constitution and to Parliament. The Commission must send a report of its activities to Parliament at least once a year.
The CGE has been set up in terms of the 1996 Commission of Gender Equality Act 39.
The CGE consists of a chairperson and 7 to 11 members. The National Assembly and the National Council of Provinces nominate and approve members to the CGE. The members of the CGE stay in office for 7 years.
The Commission on Gender Equality Act makes no provision for provincial offices.
The functions of the CGE
These are to:
The CGE has the power to:
The CGE can request any level of government to assist them with an investigation or with any of their functions.
Anyone can make a complaint to the CGE. If you want to make a complaint you must do the following:
The Auditor General is the watchdog of all money that is given to the government and spent by them. The Auditor General checks the accounts of all national and provincial government departments and all local governments to make sure that money is being accounted for.
This commission has been set up to manage elections to make sure that they are free and fair.
This commission was established in terms of the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities Act, 2002. Its purpose is to promote and protect the rights of different cultural, religious and language communities. It must promote and develop peace, tolerance and national unity amongst these communities, on the basis of equality, non-discrimination and freedom of association. Since the promulgation of the Act, 18 members have been appointed to serve on the Commission.
This commission used to be called the Independent Broadcasting Authority (IBA). ICASA exists to monitor all aspects of broadcasting in this country. For example, to make sure that radio and television broadcasts are fair and that they represent the views of South African society.
The Commission on Restitution of Land Rights (the Land Claims Commission) was set up under Section 25 (7) and (8) of the Bill of Rights (the property rights section) to mediate and decide on claims to land made by people who had been forcibly removed under the laws of apartheid. The Land Claims Commission is an independent body that is only accountable to the Constitution and to Parliament. It must send a report of its activities and findings to Parliament at least once a year.
The Land Claims Commission consists of a Chief Land Claims Commissioner and 9 commissioners, one in each province. The Minister of Land Affairs appoints the Chief Land Claims Commissioner and the Provincial Commissioners. There are also Land Court Judges in the Land Claims Court. The President, on the advice of the Judicial Services Commission, appoints the Land Claims Court judges.
Joe Mkhize applies to go to Welmoed High School. The school is only two blocks away from where he lives with his parents. At Welmoed High School most of the students speak Afrikaans and all of the lessons are in Afrikaans. Joe speaks a different language from the language used at this school. The School Board rejects his application. They say they only want Afrikaans-speaking people to come to Welmoed High School. They say it is their right to refuse to let him register. Joe's parents feel they have a right to send Joe to the school.
The Bill of Rights in the Constitution says Joe has a right to attend Welmoed High School. Section 9: Right to equality, clause number 3 says he has a right not to be discriminated against on the basis of his language. Section 29 says he has a right to a basic education.
People do have a right to develop their own langauge and culture, but they cannot exclude people from a government school on the basis of their language or religion, or any other factor listed in the right to equality section of the Bill of Rights.
You can help Joe and his parents to make a complaint to the South African Human Rights Commission.
Mrs Jansen applied for an Older Person’s Grant three years ago. She has still not received a penny of this grant. The SASSA officer says he doesn't know why this is so. Mrs Jansen finds out that other people have also waited years for their grants. She believes that some people don't have to wait so long for their grants. Mrs Jansen wants to take action because she is desperate for the grant payments.
The Constitution says the Public Protector can investigate state officials and their conduct if people believe they are abusing their powers or not doing their job properly. This is a case of misconduct on the part of the pension officer.
Mrs Jansen has a right to have access to information held by the state that will help her exercise her rights. She also has the right to just administrative action and to be given reasons why her grant has taken so long to arrive.
You can help Mrs Jansen make a complaint to the Public Protector.
Maria Johannes is a farmworker. She is a member of the Farmworker's Union. When she falls pregnant her employer tells her to leave and he employs someone else in her place. Maria is angry and she discusses this with other women on the farm. Many of the women feel angry because they only get work when it suits the farmer. They all agree that the farmer's actions are unfair and they decide to take further steps.
The Constitution says there can be no discrimination on grounds of gender, sex and pregnancy. In this case Maria Johannes and the other female workers have been discriminated against.
The Commission on Gender Equality will protect people (men and women) who complain that they have been discriminated against because of their gender or sex.
You can help Maria Johannes and the other female workers make a complaint to the Commission on Gender Equality.
Report these to the South African Human Rights Commission.
Report these to the Commission for Gender Equality.
See Commission on Gender Equality
Report these complaints to the Public Protector.
See Public Protector
Follow up the complaint in terms of the Promotion of Administrative Justice Act, 2000
See Section 33: Just Administrative Action
Report these to the Independent Compalints Directorate
See Reporting a case of polic misconduct tot eh Independent Complaints Directorate.
© This material may not be used for profit without permission from ETU