Basic human rights act south africa

Human rights are those basic and fundamental rights to which every person - for the simple reason of being human - is entitled. These rights are inalienable: a person has them forever and they cannot be taken away.

The natural rights of South Africans received no protection before the country became a constitutional democracy in 1994. (See the history of the Constitution for the background to the struggle for human rights and democracy.)

Chapter 3 of the interim Constitution introduced legally protected fundamental rights to South Africa for the first time. Now fundamental human rights are entrenched in Chapter 2 - sections 7 to 39 - of the 1996 Constitution.

The Bill of Rights is arguably the part of the Constitution that has had the greatest impact on life in this country. As the first words of this chapter say: "This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom."

It has also been the source of the majority of the groundbreaking rulings the Constitutional Court has handed down. To read more about selected rights and the way the Constitutional Court has interpreted them, see children's rights, women's rights, gay and lesbian rights, workers' rights and access to information.

It goes without saying that the Bill of Rights is binding on the government. Section 8 says it binds the executive, the judiciary and all organs of state - which means everyone from the president to the police.

But a recurring theme in constitutional law is whether private individuals and bodies (such as clubs, companies and private schools) are also obliged to observe such rights. It is widely recognised that some private bodies, such as large companies, can have great power. Shouldn't citizens be protected from non-state bodies that, for example, discriminate unfairly?

This question, left unanswered in the interim Constitution, was cleared up by Section 8 of the final Constitution: the Bill of Rights doesn't only apply vertically (from the state downwards, to its citizens) - it also applies, where applicable, horizontally (between one citizen or private body and another).

Human rights fall into two broad classes - first and second generation. Civil and political rights, those traditionally included in constitutions around the world, tend to be considered first-generation rights.

These rights, which were given expression by the Enlightenment thinkers, were the first to be recognised by law. They begin with the basic rights to life, dignity, equality and privacy. But they also include the fundamental freedoms associated with democracy: freedom of expression, association, assembly, opinion, belief and religion, and movement.

Second-generation rights are those connected to the social and economic features of life. South Africa is one of only a few countries in the world to entrench rights such as access to food, water, housing, healthcare and social security - section 27. The right to education and the special rights of children also fit in here.

Third-generation rights - a relatively new field in human rights - concern the environment and development, as well as culture and language.

At first glance it might seem strange to include, in a document dedicated to protecting rights, a clause that allows rights to be limited. But this is a necessary feature of life in society: people inevitably have competing and conflicting rights.

One person's right to dignity, for example, may clash with another's right to freedom of expression. One citizen's right to be protected from violent suspected criminals will conflict with that suspect's right to freedom of movement.

It's an established principle, then, that rights can be limited. The challenge, though, is to allow them to be limited only under strict conditions. If the Bill of Rights simply allowed any kind of restriction, its very purpose would be undermined.

As a result, section 36 of the Constitution, known as the limitation clause, lays down a test that any limitation must meet. The two central concepts in this test are reasonableness and proportionality. Any restriction on a right must be reasonable and must be proportional in that the impact or extent of the restriction must match the importance of the aim served by the limitation of the right.

Section 38 gives a person who believes an infringement has occurred the right to go to court. This clause makes it clear that it is not only people acting for themselves who may use the law to protect their own rights: "class action" suits - by people acting for a group or in the public interest - are also allowed. See how to approach the Constitutional Court, as well as the list of organisations that can help you enforce your rights.

The Bill of Rights is unlike any ordinary piece of legislation. The language used in many of the sections is broad, which means the rights need careful interpretation by the judges who apply this document.

There is some explicit guidance, however. An important instruction is contained in section 39(1)(a): "When interpreting the Bill of Rights, a court, tribunal or forum must promote the values that underlie an open and democratic society based on human dignity, equality and freedom."

Judges are reminded to keep these values - which crop up frequently in South Africa's constitutional law - at the front of their minds when dealing with the Bill of Rights.

The Bill of Rights cannot be changed by a simple parliamentary majority. Rather, it can only be amended by a Bill passed by the National Assembly, if at least two-thirds (67 percent of the members of Parliament) vote for it; and the National Council of Provinces, if at least six provinces vote for it.

When the Constitutional Court was inaugurated in 1995, the shelves of the new library were bare. But now the collection stands at more than 40 000 volumes - and is growing quickly. The library expects to hold as many as 400 000 items eventually.

The library from outsideChief Justice Arthur Chaskalson - in his tribute to Justice Laurie Ackermann, who retired in 2003 - said Ackermann, who became the chairperson of the Library Committee, adopted the project when the library was "a smallish storeroom, consisting of shelves with a few law reports and even fewer textbooks".

Chaskalson, speaking about the office space the Court rented before it moved into its new building, said a government architect had presumably been "of the opinion that there would be little use for books, and if it was really necessary for a judge to look at one of them it could be taken to the judge's chambers".

Now the library occupies a spacious and imposing three-story complex in the northern wing of the Constitutional Court's new building. The new library has an expandable public reading room with a separate entrance.

The judges

South Africa's Constitution says every court in the country, when interpreting the Bill of Rights, must consider international law and may consider foreign law. Other foreign links are evident in our Constitution itself: its drafters borrowed heavily from the constitutions of other democratic countries.

As a result, the Constitutional Court needs a top-quality library to help it develop South Africa's constitutional law. The judges have to be familiar with and have access to:

• international law as developed by the International Court of Justice and other international courts, as well as international covenants and conventions on human rights; and
• the jurisprudence of Africa and countries such as the United States, Canada, the United Kingdom, India and others.

It is also vital for judges to have access to the latest international legal journals. The field of human rights and constitutional law is developing rapidly; it is in these journals that innovative thinking and fresh developments are first encountered.

The law clerks

The Constitutional Court is the first court in the history of South Africa where all the Judges have law clerks. Each has two clerks, ordinarily recent law graduates. The library and its librarians play an indispensable role in the development of the clerks' research skills - particularly in computer, electronic and Internet research.

Other courts and users

The libraries of the High Courts - and even that of the Supreme Court of Appeal - are not equipped for the new constitutional jurisprudence. And the position in the Magistrates' Courts is much worse.

The most efficient way to meet their needs was for the Constitutional Court to develop an outstanding library as a national resource that is accessible to other courts.

In fact, right from the beginning the Constitutional Court discarded the idea that its library was solely for its own use and benefit. Instead, the Court considers it a national and continental resource: it is accessible for research by other courts, independent state institutions, legal academics, practising lawyers and other constitutional law researchers.

The vision extends further: the goal is to develop the library as a resource for all lawyers. Although the older, established law schools are relatively well served by their libraries, even they are feeling the pinch and have already started using the Constitutional Court library.

The African continent

For Africa to meet the challenges of constitutionalism and human rights, it needs better access to relevant legal information.

The consensus is that the obligations of the Constitutional Court library extend to the continent. The library is prepared to fulfil this duty if the means to do so are available, for scarce resources simply have to be shared.