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Chapter 1 - The South African Constitution and Bill of RightsSummary of the ConstitutionPreamble
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Example
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.
Section 9: 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. The government must take active steps to change the inequalities of the past.
The government must make laws that provide benefits for people who continue to suffer from inequalities as a result of past laws. 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.
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:
- race and colour
- sexual orientation: being gay, lesbian or heterosexual
- marital status: being single, married or divorced
- gender: social and cultural male or female roles (for example, where a woman can't get a certain job just because she is a woman) sex: physical differences between men and women (for example, a woman is discriminated against because she is pregnant)
- pregnancy
- age
- disability
- ethnic origin: being from a particular background, such as a clan or language group
- culture: having a shared culture and traditional practices
- language
- religion, conscience, belief
- birth
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:
- Does the action differentiate between people or categories of people?
- If the action does differentiate, is there a rational connection between the action and a legitimate government purpose? In other words, does the government have a good reason for the action?
- Does the differentiation amount to unfair discrimination?
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 to be established in all the provinces 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).
Case study 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. |
Section 10: Right to human dignity
Everyone has dignity and the right to have their dignity respected and protected.
Section 11: Right to life
Everyone has the right to life.
The Criminal Procedure Act includes the right for police (or someone 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 suspect is threatening to harm the person arresting him or her or someone else, or
- the suspect is suspected of having committed a serious crime involving or threatening harm to a person.
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.
Section 12: Freedom and security of the person
This includes the following rights:
- not to be put in prison without good reason
- not to be detained without trial
- to be free from all kinds of violence in both public and private areas
- not to be treated or punished in a cruel, inhuman or degrading way.
Torture is not allowed. - to make decisions about reproduction (having children)
- to have control over our own bodies
- not to be forced to have medical or scientific experiments done on people
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.
Corporal punishment
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.
Section 13: Slavery, servitude and forced labour
No form of slavery or forced labour is allowed.
Section 14: Right to privacy
Everyone has the right to privacy, including the right not to:
- be body-searched without a court order
- have your home searched without a court order
- have your things taken from you
- have your letters opened or your telephoned tapped
The Interception and Monitoring Prohibition Amendment Act (1996) prevents people's conversations being intercepted.
Section 15: Freedom of religion, belief and opinion
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.
Section 16: Freedom of speech and expression
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:
- propaganda for war
- inciting (encouraging) people to use violence
- hate speech
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.
Section 17: Freedom of assembly, demonstration, picket and petition
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.
Section 18: Freedom of association
Everyone has the right to associate with whoever they want, for example, workers joining together and meeting in a trade union.
Section 19: Political rights
Everyone has the right and is free to make political choices, such as the right to:
- form a political party
- join any political party
- encourage other people to join a political party
- campaign for a political party or cause
Elections
Every adult citizen has the right to free, fair and regular elections. They have the right to:
- vote in these elections
- vote in secret in elections
- stand for election
Section 20: Citizenship
Your citizenship is protected and cannot be taken away from you.
Section 21: Freedom of movement and residence
Everyone has the right to:
- move anywhere in South Africa
- leave South Africa if they choose
Every citizen has the right to:
- enter South Africa and stay there
- live anywhere in South Africa
- have a passport
Section 22: Freedom of trade, occupation and profession
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.
Section 23: Labour relations
Everyone has the right to fair labour practices.
Workers have the right to:
- form and join trade unions
- join in the activities and programmes of the trade union
- strike
Employers have the right to:
- form and join employers' organisations
- join in the activities and programmes of the employers' organisation
Trade unions and employers' organisations have the right to:
- make decisions about their own administration, programmes and activities
- organise
- form and join a federation
- engage in collective bargaining
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.
Section 24: Environment
Everyone has the right to:
- an environment that is not harmful to their health or well-being
- have the environment protected for present and future generations
The government must pass laws that:
- prevent pollution and damage to our natural resources
- promote conservation
- make sure that natural resources are developed while also promoting the economic and social development of people
Section 25: Property
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:
- the government wants to use the land for public purposes
or - it is in the public's interest, for example, if the government needs the land for its land reform programme.
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 history of how the property was bought and what it was used for before
- how much the owner has improved the property
- what the property is being used for now
- the market value: what the price of the property would be if a private person or business bought it
- how much the government can pay: how much money the government has in its budget to pay for the property
- what the government wants to do with the property
Example 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. |
Land Reform
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
Labour tenants
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
Section 26: Right of access to housing
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.
These are:
- what are reasonable measures that the government should take
- what steps should government take to steadily implement this right in stages over time
- what resources are available to make this possible
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.
Evictions
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
Section 27: Right of access to health care, food, water and social security
Everyone has the right to have access to:
- health care services (including child birth facilities)
- enough food and water
- social security (which means support for people who can't support themselves or their dependants)
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.
Emergency medical treatment
Everyone is allowed to have emergency medical treatment.
Section 28: Children's rights
A child is anyone who is under the age of 18. Every child has the right:
- to a name and a nationality from the day they are born
- to proper care by parents or a family member, or by someone else if the child has to be taken away from the family
- to enough food, shelter, basic health care and social services
- to be protected from being mistreated, neglected or abused
- not to be forced to work or given work which is not suitable for a child
- to have a lawyer paid for by the government, if the child has to appear in court
- not to be used in wars
- to be protected during times of war
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
Section 29: Education
Everyone has the right to:
- a basic education, including adult basic education
- further education, which the government must make available and accessible
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.
Section 30: Language and culture
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.
Section 31: Cultural, religious and linguistic communities
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.
Section 32: Access to information
Everyone has the right to have access to:
- information which the government has
- information that someone else has if they need it to protect any of their rights
Example 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: Just administrative action
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:
- provide for a review of the actions of a government official (or department) where the action might have gone against a person's rights, and
- make it a duty of the government and all government bodies to put this right into practice, be just and promote an efficient administration
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:
- Was the decision the suitable one to make in the circumstances?
- Was the decision necessary?
- Was the decision proportional? In other words does it balance the competing interests of all the people who will be affected by the decision?
EXAMPLECertain 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:
- Told what decision is being planned before it is taken;
- Allowed to tell your side of the story before a decision is made;
- Told what the decision is and of your right to internal appeal or review;
- Told that you have the right to request reasons;
- Given proper written reasons for the decision;
- Able to challenge the decision in court.
What can you do?
If you think that the administrative decision taken against you might be wrong, you can:
- Request reasons from the administration. Requests must:
- be in writing (if you can’t write, ask a friend or relative to help you)
- say what decision you are requesting reasons fro
- say why you think the decision is wrong;
- include your name, postal address, email address, fax and telephone numbers; and
- be sent by post, fax, email or delivered by hand
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.
- Use internal appeal procedures:
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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.
- Going to court
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:
- within 6 months of any internal appeal having been decided
- (where there is no internal appeal) within 6 months of finding out the decision.
- Using other remedies
Taking a matter of review is expensive. Cheaper ways of finding assistance include:
- using internal appeal procedures
- complain to the area or regional manager of the department concerned
- complain to the ward councilor or provincial MEC of the relevant department
- refer the complaint to the Public Protector, the South African Human Rights Commission
- approaching a Justice centre (or if there is no Justice Centre, the Legal Aid Board) for legal assistance to take the case up
Section 34: Access to courts
Everyone has the right to have any legal problem or case decided by a court or an independent body.
Section 35: Arrested, detained and accused persons
Arrested people
If a person is arrested, they have the following rights:
- to keep silent
- to be told, in a language that they understand, that they have the right to keep silent and what will happen if they do not keep silent
- not to be forced to make a confession or to admit anything that could be used against them during their trial
- to be taken to court within 48 hours of their arrest
- to be charged and released, either on warning or on bail, unless there is a good reason to keep the person in jail
Detained people
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:
- be told in a language they understand why they are being detained
- be informed immediately that they can have a lawyer
- choose their own lawyer
- have the government pay for a state lawyer, if they cannot afford one and injustice might result if they are not given a lawyer
- be kept in proper conditions, including being allowed exercise and getting food
- accommodation, food, reading material and medical treatment at the state's expense
- speak to and be visited by the person's husband, wife or partner, their family, a religious counsellor, and their own doctor
- go to court to challenge the reasons for their detention, and to be released if there are not lawful reasons for being detained
Accused people
A person accused of committing a crime must be given a fair trial. This includes the right to:
- be treated as an innocent person
- be told what the charge is against them
- be told that they have a right to a lawyer
- their own lawyer or a lawyer paid for by the government, if they cannot afford one and injustice might result if they are not given a lawyer
- be given enough time to prepare their defence
- a public trial in an ordinary court
- be present during their trial
- keep silent
- not be forced to give evidence against themselves
- call witnesses and challenge any witnesses used against them
- be tried in a language that they understand, or to have an interpreter
- not be convicted for doing something which became a crime after they did it, in other words, if it was not a crime when they did it
- be sentenced within a reasonable time if they are convicted
- be sentenced to the least serious punishment, if the punishment for what they have done has changed since they did it
- appeal against their conviction and sentence to a higher court
- have their case reviewed by a higher court
- not be tried twice for the same crime
If the state gets evidence against a person by going against one of their rights, this evidence will not be allowed in court.
Section 36: Limitations on rights
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:
- the nature of the right
- the importance of the purpose of limiting the right
- how much the right will be limited
- the relation between the limitation and its purpose
- whether there are better ways to achieve the same purpose
Section 37: States of emergency
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 life of the nation is threatened by war, invasion, disorder, natural disaster or other public disorder, AND
- the state of emergency is necessary to restore peace or order
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 right to human dignity
- the right to life
- the right to equality (race and sex only)
- freedom from torture
Section 38: Enforcing rights
The following people can take a case to court, if they believe that a right has been threatened or infringed:
- anyone representing themselves
- anyone acting on behalf of another person who cannot take the case to court
- anyone acting as a member of a group, or in the interests of a group or class of people
- anyone acting in the public interest
- an association acting in the interests of its members
Section 39: Interpreting the Bill of Rights
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.
Chapter 3: Co-operative government
Government works at national, provincial and local levels.
All spheres of government must:
- keep the peace and national unity of South Africa
- look after the well-being of the people of South Africa
- be effective, transparent and accountable to the Republic as a whole
- be loyal to the Constitution and to South Africa
- respect the status, institutions, powers and functions of government in other areas
- not take on powers that the Constitution doesn't give them
- use their powers and perform their functions in a way that doesn't interfere with government in another area
- co-operate with each other by assisting, supporting, consulting with each other on things of common interest
Chapter 4: Parliament
This chapter looks at:
- the National Assembly
- the National Council of Provinces
- how a bill becomes law
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:
- the National Assembly
- the National Council of Provinces
The National Assembly
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:
- a South African citizen
- allowed to vote
- of sound mind
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.
‘Floor-crossing’
Floor-crossing laws allow members of one party – in national, provincial and local government spheres – to change to another political party without losing their seats. This has to take place during a specified window period of two weeks. For a successful floor-crossing, the ‘floor-crossers’ have to make up 10% of the party’s public representation in that particular sphere. For example in the national assembly if the ANC has 270 members, at least 27 of these members have to cross the floor to make the floor-crossing valid, whereas a single person can validly cross the floor from any small party with 10 or less members
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 National Council of Provinces (NCOP)
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:
- 4 special delegates, including the Premier of the Province
- 6 permanent delegates
The NCOP elects a Chairperson and two Deputies.
Making laws
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.
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:
- The National Assembly looks at a bill, and sends it to a parliamentary portfolio committee for consideration. Parliamentary portfolio committees specialise in the same area as each government department. For example, there is a portfolio committee for health, prison services, defence, and so on.
- The portfolio committee recommends changes and returns the bill to the National Assembly. The bill can go back and forth between the committee and the National Assembly.
- At least half the members of the National Assembly must vote in favour of the bill for it to be approved by the National Assembly. The National Assembly approves the bill, and sends it to the NCOP.
- The NCOP considers the bill.
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.
- The mediation committee consists of 9 members of the NCOP and 9 members of the National Assembly.
- If the mediation committee resolves the differences, it refers the bill to the National Assembly to be passed.
- If the National Assembly and NCOP still can't agree, then the National Assembly has to have a special vote to make the bill law. It will only become an act if it gets a two-thirds (66%) majority in the National Assembly.
- The National Assembly passes the bill.
- The bill is sent to the President. He or she signs it and it gets published in the Government Gazette. When this has happened, the bill becomes law and is called an Act of Parliament.
Changing the Constitution
Changing or amending our Constitution
What happens if a Bill is, or might be, unconstitutional?
- Members of the National Assembly can apply to the Constitutional Court for an order to declare that all or part of an Act of Parliament is unconstitutional. At least one third of the members of the National Assembly must support this application. The application must be made within 30 days of the date on which the President signed the Act.
- If the President thinks a bill goes against the Constitution, the President can refuse to sign it and send it back to Parliament for them to look at it again.
- If Parliament makes the changes suggested by the President, the President must sign the bill.
- If Parliament does not make these changes, the President can either sign the bill or send it to the Constitutional Court, for the Court to say whether or not the law goes against the Constitution.
- If the Constitutional Court is satisfied with the bill, the President must sign it.
- If the Constitutional Court is not satisfied with the bill, it will be sent back to Parliament. Parliament can either change the bill or let it fall away.
Chapter 5: The President and the national executive
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
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
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.
Chapter 6: Provinces
There are 9 provinces:
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Each province has its own provincial government. This is made up of a provincial legislature and a provincial executive.
Provincial legislatures
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.
Provincial executives
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.
Powers of the provinces
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.
Chapter 7: Local government
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.
Who can vote in local government elections?
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.
Powers of local government
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.
Schedule 4
Schedule 5
LOCAL GOVERNMENT for information on local government powers and duties
Chapter 8: Courts and administration of justice
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
- the Supreme Court of Appeal
- the High Courts
- magistrate's courts
- other courts set up by acts of Parliament, for example, the Labour Court, the Small Claims Court
The Constitutional Court
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:
- Disputes over constitutional matters between government bodies and between different levels of government, for example, between a national and a provincial body.
- Whether laws passed (or about to be passed) by parliament or provincial governments go against the Constitution.
- If any conduct of the President goes against the Constitution.
Hearing cases about the Constitution
Any court can hear a case about the Constitution, including cases about abuses of rights. Courts can do the following:
- remove a law which is unconstitutional
- stop any conduct which is unconstitutional
- give the body which made the law time to change the law
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 often 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
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The Supreme Court of Appeal
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.
High 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:
- the Constitutional Court if it is a constitutional matter
- the Supreme Court of Appeal in any other matter
Magistrate's Courts
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.
How judges are chosen
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 Chief Justice
- the President of the Constitutional Court
- a Judge President of a High Court
- the Minister of Justice
- 2 advocates
- 2 attorneys
- a professor of law
- 4 members of the National Council of Provinces
- 4 people chosen by the President
Chapter 9: State institutions that support constitutional democracy
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.
These institutions are independent and report to Parliament at least once a year. They are:
- The Public Protector
- South African Human Rights Commission (SAHRC)
- Commission on Gender Equality (CGE)
- The Auditor General
- Independent Electoral Commission (IEC)
Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (Cultural Commission) - Independent Communications Authority of South Africa (ICASA)
The Land Claims Commission has been set up to protect people's land rights under Section 25 of the Bill of Rights.
Chapter 10: Public administration
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
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.
The Public Administration Commission
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.
Chapter 11: Security services
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)
Chapter 12: Traditional authorities
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.
Chapter 13: Finance
The National Revenue Fund
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.
The Financial and Fiscal Commission
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.
How taxes are budgeted
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.
Chapter 14: General provisions
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.
Schedule 4
Concurrent functional areas of national and provincial legislatures
The National Assembly and provincial legislatures can pass laws on any matter, including a matter in the functional areas listed in Schedule 4.
Part A
| Administration of indigenous forests Agriculture Airports (not international or national) Animal control and diseases Casinos, racing, gambling and wagering, excluding lotteries and sports pools Consumer protection Cultural matters Disaster management Education at all levels, excluding tertiary education Environment Health services Housing Indigenous law and customary law Industrial promotion Language policy and the regulation of official languages | Media services Nature conservation, excluding national parks Police Pollution control Population development Public transport Public works only in respect of the needs of provincial government Regional planning and development Road traffic regulation Soil conservation Tourism Trade Traditional leadership Urban and rural development Vehicle licensing Welfare services |
Part B
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.
| Air pollution Building regulations Child care facilities Electricity Ferries, jetties, piers and harbours Firefighting services Local tourism Municipal airports | Municipal planning Municipal public transport Municipal public works Stormwater managements systems in built-up areas Trading regulations Water and sanitation services (domestic water use and sewage disposal systems) |
Schedule 5
Functional areas that belong only to the provinces
Part A
| Abattoirs Ambulance services Archives that belong to the provinces Libraries (but not national libraries) Liquor licences Museums (but not national museums) | Provincial planning Provincial cultural matters Provincial recreation and amenities Provincial sport Provincial road and traffic Vets |
Part B
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 Cleansing Control of public nuisances Control of businesses that sell liquor to the public Facilities to accommodate and bury animals Fences Licensing of dogs Licensing and control of businesses that sell food to the public Local amenities | Local sport facilities Markets Municipal abattoirs Municipal parks and recreation Municipal roads Noise pollution Pounds Public places Refuse removal and refuse dumps Street trading Street lighting Traffic and parking |
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