The Constitution is a law agreed by the people’s representatives that sets out how the state will be constituted and run, the people’s rights and responsibilities as citizens and the creation of particular institutions to support and safeguard the country’s democracy. The South African Constitution offers protection to both citizens and non-citizens, and is one of few constitutions in the world that indisputably does so.
South Africa’s Constitution is the result of remarkably detailed and inclusive negotiations that were carried out with an acute awareness of the injustices of the country’s non-democratic past. It is the highest law of the land and no other law or government action can supersede it.
An interim constitution was first drafted as the country made its transition from apartheid to democracy. Then, after the April 1994 elections, a new constitution was written in consultation with the public as well as elected public representatives.
This was approved by the Constitutional Court on 4 December 1996 and took effect on 4 February 1997. It is widely regarded as the most progressive constitution in the world, with a Bill of Rights second to none.
The Bill of Rights Summarized:
What you need to know:
Everyone is equal before the law and has the right to equal protection and benefit of the law. Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.
The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination. Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.
2. Human Dignity
Everyone has inherent dignity and the right to have their dignity respected and protected.
Everyone has the right to life.
4. Freedom and Security of the Person.
Everyone has the right to freedom and security of the person, which includes the right:
- not to be deprived of freedom arbitrarily or without just cause
- not to be detained without trial
- to be free from all forms of violence from either public or private sources
- not to be tortured in any way
- not to be treated or punished in a cruel, inhuman or degrading way
Everyone has the right to bodily and psychological integrity, which includes the right:
- to make decisions concerning reproduction
- to security in and control over their body
- not to be subjected to medical or scientific experiments without their informed consent.
5. Slavery, Servitude and Forced Labour
No one may be subjected to slavery, servitude or forced labour.
Everyone has the right to privacy, which includes the right NOT to have:
- their person or home searched
- their property searched
- their possessions seized
- the privacy of their communications infringed
7. Freedom of Religion, Belief and Opinion
Everyone has the right to freedom of conscience, religion, thought, belief and opinion. Religious observances may be conducted at state or state-aided institutions, provided that:
- those observances follow rules made by the appropriate public authorities
- they are conducted on an equitable basis
- attendance at them is free and voluntary.
- This section does not prevent legislation recognising marriages concluded under any tradition, or a system of religious, personal or family law or systems of personal and family law under any tradition, or adhered to by persons professing a particular religion.
8. Freedom of Expression
Everyone has the right to freedom of expression, which includes:
- freedom of the press and other media
- freedom to receive or impart information or ideas
- freedom of artistic creativity
- academic freedom and freedom of scientific research
The right in subsection (1) does not extend to:
- propaganda for war
- incitement of imminent violence
- advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.
9. Assembly, Demonstration, Picket and Petition
Everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions.
10. Freedom of Association
Everyone has the right to freedom of association.
11. Political Rights
Every citizen is free to make political choices, which includes the right:
- to form a political party
- to participate in the activities of, or recruit members for, a political party
- to campaign for a political party or cause
Every citizen has the right to free, fair and regular elections for any legislative body established in terms of the Constitution. Every adult citizen has the right to vote in elections for any legislative body established in terms of the Constitution and to do so in secret and to stand for public office and, if elected, to hold office.
No citizen may be deprived of citizenship.
13. Freedom of Movement and Residence
- Everyone has the right to freedom of movement
- Everyone has the right to leave the Republic
- Every citizen has the right to enter, to remain in and to reside anywhere in, the Republic
- Every citizen has the right to a passport
14. Freedom of Trade, Occupation and Profession
Every citizen has the right to choose their trade, occupation or profession freely. The practice of a trade, occupation or profession may be regulated by law.
15. Labour Relations
Everyone has the right to fair labour practices. Every worker has the right:
- to form and join a trade union
- to participate in the activities and programmes of a trade union
- to strike
Every employer has the right:
- to form and join an employers’ organisation
- to participate in the activities and programmes of an employers’ organisation
Every trade union and every employers’ organisation has the right:
- to determine its own administration, programmes and activities
- to organise
- to form and join a federation
Every trade union, employers’ organisation and employer has the right to engage in collective bargaining. National legislation may be enacted to regulate collective bargaining. To the extent that the legislation may limit a right in this Chapter, the limitation must comply with section 36 (1).
National legislation may recognise union security arrangements contained in collective agreements. To the extent that the legislation may limit a right in this Chapter the limitation must comply with section 36 (1).
Everyone has the right:
- to an environment that is not harmful to their health or well-being
- to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that prevent pollution and ecological degradation, promote conservation and secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.
No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property. Property may be expropriated only in terms of law of general application:
- for a public purpose or in the public interest
- subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court
The amount of the compensation and the time and manner of payment must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances, including:
- the current use of the property
- the history of the acquisition and use of the property
- the market value of the property
- the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property
- the purpose of the expropriation
For the purposes of this section:
- the public interest includes the nation’s commitment to land reform, and to reforms to bring about equitable access to all South Africa’s natural resources
- property is not limited to land.
- The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis
- A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress
- A person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress.
- No provision of this section may impede the state from taking legislative and other measures to achieve land, water and related reform, in order to redress the results of past racial discrimination, provided that any departure from the provisions of this section is in accordance with the provisions of section 36 (1)
- Parliament must enact the legislation referred to in subsection (6)
Everyone has the right to have access to adequate housing. The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right. No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.
19. Health Care, Food, Water and Social Security
Everyone has the right to have access to:
- health care services, including reproductive health care
- sufficient food and water
- social security, including, if they are unable to support themselves and their dependents, appropriate social assistance.
The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights. No one may be refused emergency medical treatment.
Every child has the right:
- to a name and a nationality from birth
- to family care or parental care, or to appropriate alternative care when removed from the family environment
- to basic nutrition, shelter, basic health care services and social services
- to be protected from maltreatment, neglect, abuse or degradation
- to be protected from exploitative labour practices
- not to be required or permitted to perform work or provide services that are inappropriate for a person of that child’s age or place at risk the child’s well-being, education, physical or mental health or spiritual, moral or social development
- not to be detained except as a measure of last resort, in which case, in addition to the rights a child enjoys under sections 12 and 35, the child may be detained only for the shortest appropriate period of time, and has the right to be kept separately from detained persons over the age of 18 years and treated in a manner, and kept in conditions, that take account of the child’s age
- to have a legal practitioner assigned to the child by the state, and at state expense, in civil proceedings affecting the child, if substantial injustice would otherwise result
- not to be used directly in armed conflict, and to be protected in times of armed conflict
A child’s best interests are of paramount importance in every matter concerning the child. In this section ‘child’ means a person under the age of 18 years.
Everyone has the right to a basic education, including adult basic education and to further education, which the state, through reasonable measures, must make progressively available and accessible.
Everyone has the right to receive education in the official language or languages of their choice in public educational institutions where that education is reasonably practicable. In order to ensure the effective access to, and implementation of, this right, the state must consider all reasonable educational alternatives, including single medium institutions.
22. Language and Culture
Everyone has the right to use the language and to participate in the cultural life of their choice, but no one exercising these rights may do so in a manner inconsistent with any provision of the Bill of Rights.
23. Cultural, Religious and Linguistic Communities
Persons belonging to a cultural, religious or linguistic community may not be denied the right, with other members of that community to enjoy their culture, practise their religion and use their language and to form, join and maintain cultural, religious and linguistic associations and other organs of civil society.
The rights in subsection (1) may not be exercised in a manner inconsistent with any provision of the Bill of Rights.
24. Access to Information
Everyone has the right of access to any information held by the state and any information that is held by another person and that is required for the exercise or protection of any rights.
National legislation must be enacted to give effect to this right, and may provide for reasonable measures to alleviate the administrative and financial burden on the state.
26. Access to Courts
Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.