<--- Back to contents

Chapter 1 - The South African Constitution and Bill of Rights

Human rights in South Africa

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:

• Creating a human rights culture in South Africa
• Rights and duties
• Conflicts in rights
• Protecting human rights:
  • Constitutional Court
  • Public Protector
  • South African Human Rights Commission
  • Commission on Gender Equality
  • Land Claims Commission and Land Claims Court

What are human 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 and moral rights

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.

Indivisibility of human 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).

Rights and responsibilities

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:

• The right to be equal before the law

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.

• The right to life

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.

• Right to freedom and security of the person

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.

• No slavery or forced labour

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.

• Right to privacy

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.

• Freedom of assembly, demonstration, picket and petition

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.

• Freedom of movement and residence

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.

• Right to education

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.

• Right of access to health care, food, water, social security

Your duty:

• to look after and care for public water pumps and to keep these in proper working order
• not to pollute rivers that people are using for drinking water
• to throw household litter in a proper place away from people's homes
• to pay rates and duties for services to the municipal council

The state's duty:

• to provide a rubbish removal service to all communities
• to provide clean running water to all communities
• not to turn people away from hospitals if they need care

• Right to a clean environment

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.

Conflicts in rights

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

How can we resolve conflicts of rights on our own?

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:

• Try and involve an outside party to come and mediate between the parties in conflict. Any person who is called in as a mediator should be respected by both parties.
  
• Go to your nearest parliamentary constituency office for advice.
  
• Get advice about your rights from a paralegal in an advice office.
  
• Report the problem to the local police if you think it is a problem that they can investigate.
  
• Speak to other people and if necessary form a lobby or pressure group.
  
• Report the problem to your local government representative.
  
• Report your case to a statutory body such as the Public Protector, South African Human Rights Commission or Commission on Gender Equality.

International documents on human rights

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:

• 1948 Universal Declaration of Human Rights (not legally binding on governments but it has moral and politicalauthority in international communities)
  South Africa has not signed nor ratified it.
  
• 1953 Convention on the Political Rights of Women
  South Africa has signed it.
  
• 1957 Convention on the Nationality of Married Women
  South Africa has signed it.
  
• 1966 International Covenant on Economic Social and Cultural Rights
  South Africa has signed but not ratified it.
  
• 1966 International Covenant on Civil and Political Rights
  South Africa has signed but not ratified it.
  
• 1966 International Convention on the Elimination of All Forms of Racial Discrimination
  South Africa has signed but not ratified it.
  
• 1979 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)
  South Africa has signed and ratified it.
  
• 1981 African Charter on Human and People's Rights
  South Africa has signed and ratified it.
  
• 1984 Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment
  South African has signed but not ratified it.
  
• 1989 Convention on the Rights of the Child
  South Africa has signed and ratified it.
  
• 1996 International Labour Organisation Conventions:
  Convention Concerning Forced or Compulsory Labour
  Convention Concerning the Abolition of Forced Labour
  Convention Concerning Discrimination in Respect of Employment Occupation
  South Africa has signed and ratified these.

Summary of the Universal Declaration of Human Rights

Summary of the Convention on the Elimination of all Forms of Discrimination Against Wome

Article

1. All people are equal and discrimination against a person because of sex or gender is not allowed.
2. The state condemns all forms of discrimination against women and must take policy measures, such as changing or removing all laws that discriminate against women, to make sure that discrimination is stopped.
3. Women are guaranteed basic human rights and freedoms. The state must use all possible measures to improve the position of women in all areas of their lives.
4. Affirmative action. The state may give women special treatment in employment, education, housing and other areas in order to correct the effect caused by discrimination against women. This must carry on until the discrimination ends.
5. The state must take measures to correct the attitude that women are less important than men or that women must act in a certain way because they are women. The state must use education to make people aware that bearing, raising and protection of children is a common and equal responsibility for men and women and society as a whole.
6. The state must make sure that women are not exploited as prostitutes.
7. The state must make sure that women and men are treated as equals in politics and in the government of the country. Women must have equal rights to:


• vote and stand for elections
  
• take part in making government policy and holding positions at all levels of government
  
• participate in the activities of non-governmental organisations.
8. The state must make sure that women and men have equal rights to represent their country in other countries and to take part in the work of international organisations.
9. Men and women have equal rights of citizenship. The rights of a married woman must not depend on her husband's citizenship or on where he lives.
10. There must be no discrimination against women and girls in education.
11. The state must remove discrimination against women in work.
12. The state must take steps to make sure there are enough health care services and family planning programmes.
13. The state must make sure there is social and economic equality between women and men. Women and men must have equal rights to:

• family benefits
  
• bank loans, mortgages and other forms of credit
  
• recreational activities, sports and cultural life.
  

14. The state must take special steps to help rural women with the special problems they have.
15. Women and men must have the same rights under any laws. The law must treat women and men equally.
16. The state must take steps to end discrimination against women in marriage and family life.

Summary of the African Charter on Human and People's Rights

Summary of the Convention on the Rights of the Child

Creating a human rights culture in South Africa

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:

• to show respect towards other people
• to use negotiation and mediation when there is a problem between two or more people
• to be patient with other people
• to be a good listener
• to be slow to get angry when someone has a different perspective or opinion