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Chapter 1 - The South African Constitution and Bill of Rights

Protecting human rights

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:

  • the Public Protector
  • South African Human Rights Commission
  • Commission on Gender Equality
  • Office of the Auditor-General
  • Independent Electoral Commission
  • Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities
  • Independent Communications Authority of South Africa

Other institutions that also protect people's rights are:

  • Constitutional Court
  • Land Claims Commission and the Land Claims Court

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

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.

How is the Public Protector appointed?

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:

  • be a South African citizen
  • be a fit and proper person
  • be a judge or legal person with 10 years legal experience
  • have special knowledge of administration of justice or public administration

The functions of the Public Protector

These include:

  • to investigate complaints about any of the following:
    • poor administration of government
    • government officials who abuse their powers
    • improper conduct of public officials
    • corruption of public funds by public officials
    • any act or omission (something that has not been done) by public officials that results in prejudice to a citizen
  • to resolve disputes
  • to refer matters to other agencies, for example the Attorney General to prosecute the person who is guilty of any misconduct

What can the Public Protector do?

The Public Protector has the power to do the following:

  • order a person to attend a hearing
  • order a person to give evidence or produce any document
  • enter a person's home or a workplace if this is necessary for an investigation

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.

Making a complaint to the Public Protector

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:

  • what the complaint is about
  • why the Public Protector must investigate the complaint
  • any other information that may be relevant to the case

The services of the Public Protector are free.

South African Human Rights Commission (SAHRC)

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.

Making a complaint to the SAHRC

Anyone can make a complaint to the SAHRC. If you want to make a complaint you must do the following:

  1. Write down the details of the person who the complaint is about. This must include the name of the person or department, and their address and telephone number.
  2. Say what the complaint is about.
  3. Include your own name, address and telephone number.
  4. Post or fax this to the nearest SAHRC office.

Commission on Gender Equality (CGE)

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:

  • monitor, evaluate, review and report on laws, policies and practices of different government bodies and private businesses that affect gender equality
  • monitor international conventions to make sure that our laws and policies follow these
  • do research about gender equality
  • make recommendations to any legislature (in other words, any government body that makes laws) to adopt new laws to promote gender equality
  • network with institutions and other bodies to promote gender equality
  • educate civil society about gender equality
  • investigate any gender-related issues if someone makes a complaint
  • resolve disputes if someone has made a complaint
  • refer any complaint that it can't resolve to the Public Protector or the South African Human Rights Commission

What can the CGE do?

The CGE has the power to:

  • order a person to attend a hearing
  • order a person to give evidence or produce any document
  • enter a person's home or a workplace, if this is necessary for an investigation

The CGE can request any level of government to assist them with an investigation or with any of their functions.

Making a complaint to the CGE

Anyone can make a complaint to the CGE. If you want to make a complaint you must do the following:

  1. Write down the details of the person who the complaint is about. This must include the name of the person or department, and their address and telephone number.
  2. Say what the complaint is about.
  3. Include your own name, address and telephone number.
  4. Post or fax this to the nearest CGE office.

The Auditor General

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.

Independent Electoral Commission (IEC)

This commission has been set up to manage elections to make sure that they are free and fair.

Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (Cultural Commission)

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.

Independent Communications Authority of South Africa (ICASA)

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.

Land Claims Commission (LCC)

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.

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