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SA Constitution

The Basic Provisions
of the Constitution
of the Republic of South Africa,
1996, Made Easy for Learners

“The original English text is the official text of the Constitution”
PREAMBLE, FOUNDING PROVISIONS AND BILL OF RIGHTS

Preamble, Founding Provisions and Bill of Rights
INTRODUCTION
WHAT IS A CONSTITUTION?
A Constitution is a body of fundamental principles according to which a State is to be governed. It sets out how all the elements of government are organised and contains rules about what power is wielded, who wields it and over whom it is wielded in the governing of a country. It can be seen as a kind of contract between those in power and those who are subjected to this power. It defines the rights and duties of citizens, and the mechanisms that keep those in power in check.
The Constitution of the Republic of South Africa is the supreme law of our country. It provides the legal foundation for the existence of the Republic, sets out the rights and duties of its citizens, and defines the structure of the Government. It has been called the “birth certificate” of a free and democratic South Africa.
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Our Constitution is the most important - or supreme - law of the
land. No other law may conflict with it; nor may the Government do
anything that violates it. In a constitutional democracy such as ours,
the Constitution is superior to Parliament and is the yardstick by
which all other laws are judged. It applies to all organs of State. The
Constitutional Court is South Africa’s highest court on constitutional
matters and is the body that has the final say on the interpretation of
the Constitution.
South Africa’s Constitution, for example, describes how the
Government is formed, how it is elected and how it functions. It
outlines the Government’s powers - as well as the limits to these
powers - and entrenches the rights of the people. It also sets out how
the Government will be accountable to the people who elect it.
The Constitution forms the basis of public life in South Africa. But it
does more than just describing the nuts-and-bolts of the functioning
of the State. Our Constitution reflects the hopes and aspirations of a
nation.
THE IMPORTANCE OF THE PREAMBLE, CHAPTER 1
(FOUNDING PROVISIONS) AND CHAPTER 2 (BILL OF
RIGHTS) OF THE CONSTITUTION
Most constitutions emerge out of special circumstances. South
Africa underwent a radical transition from the oppressive apartheid
regime (a system founded on parliamentary sovereignty) to a
constitutional democracy committed to the creation of a society
based on democratic values, social justice and fundamental human
rights.
Our Constitution reflects our unique history and our quest for freedom
and democracy. Given South Africa’s past, it’s not surprising that our
Constitution frequently stresses the need to create a society that is
“open and democratic”, and that it emphasises dignity, justice and
equality.
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The Preamble is a brief introductory statement that sets out the
guiding purpose and principles of the Constitution. Chapter 1
enshrines key constitutional principles and, because they are so
important they are more difficult to change.
Section 1 may only be amended by a Bill passed by the National
Assembly, with a supporting vote of at least 75 per cent of its members
and the National Council of Provinces, with a supporting vote of at
least six provinces.
Constitutions and constitutionalism go hand-in-hand with human
rights. Rights are often entrenched in a special part of a constitution,
called a Bill of Rights. Chapter 2 of the 1996 Constitution contains
South Africa’s Bill of Rights. It is this part of the Constitution that has
attracted the greatest interest - and has had the greatest impact on
South Africans - in the past few years. These provisions deal with the
rights to equality, human dignity, life and privacy, among others, as
well as the freedoms of religion and expression. They also touch on
labour relations, children, education and the legal process.
The Bill of Rights is a cornerstone of democracy in South Africa.
It affirms the democratic values of human dignity, equality and
freedom. The Bill of Rights in Chapter 2 of the Constitution consists
of an important set of human rights that aims to define the rights
of the people, provide to whom and how the rights applies, and
regulate when and how the rights may be limited.
Chapter 2 may only be amended by a Bill passed by the National
Assembly, with a supporting vote of at least two thirds of its members
and the National Council of Provinces, with a supporting vote of at
least six provinces.
Contents
CONTENTS
PREAMBLE 1
CHAPTER 1 2
Founding Provisions
CHAPTER 2 5
Bill of Rights
INSTITUTIONS THAT MAY BE APPROACHED 25
REGARDING YOUR HUMAN RIGHTS
“The original English text is the official text of the Constitution”.
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Preamble
PREAMBLE
We, the people of South Africa,
Recognise the injustices of our past;
Honour those who suffered for justice and freedom in our land;
Respect those who have worked to build and develop our country; and
Believe that South Africa belongs to all who live in it, united in our
diversity.
We therefore, through our freely elected representatives, adopt this
Constitution as the supreme law of the Republic so as to -
Heal the divisions of the past and establish a society based on
democratic values, social justice and fundamental human rights;
Lay the foundations for a democratic and open society in which
government is based on the will of the people and every citizen is
equally protected by law;
Improve the quality of life of all citizens and free the potential of
each person; and
Build a united and democratic South Africa able to take its rightful
place as a sovereign state in the family of nations.
May God protect our people.
Nkosi Sikelel’ iAfrika. Morena boloka setjhaba sa heso.
God seën Suid-Afrika. God bless South Africa.
Mudzimu fhatutshedza Afurika. Hosi katekisa Afrika.
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Chapter 1: Founding Provisions
CHAPTER 1
FOUNDING PROVISIONS
Republic of South Africa
1. The Republic of South Africa is one, sovereign, democratic state
founded on the following values:
(a) Human dignity, the achievement of equality and the
advancement of human rights and freedoms.
(b) Non-racialism and non-sexism.
(c) Supremacy of the constitution and the rule of law.
(d) Universal adult suffrage, a national common voters roll,
regular elections and a multi-party system of democratic
government, to ensure accountability, responsiveness
and openness.
Supremacy of Constitution
2. This Constitution is the supreme law of the Republic; law or conduct
inconsistent with it is invalid, and the obligations imposed by it
must be fulfilled.
Citizenship
3. (1) There is a common South African citizenship.
(2) All citizens are—
(a) equally entitled to the rights, privileges and benefits of
citizenship; and
(b) equally subject to the duties and responsibilities of
citizenship.
(3) National legislation must provide for the acquisition, loss
and restoration of citizenship.
National anthem
4. The national anthem of the Republic is determined by the
President by proclamation.
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Chapter 1: Founding Provisions
National flag
5. The national flag of the Republic is black, gold, green, white, red
and blue, as described and sketched in Schedule 1.
Languages
6. (1) The official languages of the Republic are Sepedi, Sesotho,
Setswana, siSwati, Tshivenda, Xitsonga, Afrikaans, English,
isiNdebele, isiXhosa and isiZulu.
(2) Recognising the historically diminished use and status of
the indigenous languages of our people, the state must take
practical and positive measures to elevate the status and
advance the use of these languages.
(3) (a) The national government and provincial governments
may use any particular official languages for the purposes
of government, taking into account usage, practicality,
expense, regional circumstances and the balance of the
needs and preferences of the population as a whole or
in the province concerned; but the national government
and each provincial government must use at least two
official languages.
(b) Municipalities must take into account the language
usage and preferences of their residents.
(4) The national government and provincial governments, by
legislative and other measures, must regulate and monitor
their use of official languages. Without detracting from the
provisions of subsection (2), all official languages must enjoy
parity of esteem and must be treated equitably.
(5) A Pan South African Language Board established by national
legislation must—
(a) promote, and create conditions for, the development
and use of—
(i) all official languages;
(ii) the Khoi, Nama and San languages; and
(iii) sign language; and
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(b) promote and ensure respect for—
(i) all languages commonly used by communities in
South Africa, including German, Greek, Gujarati,
Hindi, Portuguese, Tamil, Telegu and Urdu; and
(ii) Arabic, Hebrew, Sanskrit and other languages
used for religious purposes in South Africa.
Chapter 1: Founding Provisions
5
Chapter 2: Bill of Rights
CHAPTER 2
BILL OF RIGHTS
Rights
7. (1) 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.
(2) The state must respect, protect, promote and fulfil the rights
in the Bill of Rights.
(3) The rights in the Bill of Rights are subject to the limitations
contained or referred to in section 36, or elsewhere in the Bill.
Application
8. (1) The Bill of Rights applies to all law, and binds the legislature,
the executive, the judiciary and all organs of state.
(2) A provision of the Bill of Rights binds a natural or a juristic
person if, and to the extent that, it is applicable, taking into
account the nature of the right and the nature of any duty
imposed by the right.
(3) When applying a provision of the Bill of Rights to a natural or
juristic person in terms of subsection (2), a court—
(a) in order to give effect to a right in the Bill, must apply,
or if necessary develop, the common law to the extent
that legislation does not give effect to that right; and
(b) may develop rules of the common law to limit the
right, provided that the limitation is in accordance with
section 36(1).
(4) A juristic person is entitled to the rights in the Bill of Rights to
the extent required by the nature of the rights and the nature
of that juristic person.
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Equality
9. (1) Everyone is equal before the law and has the right to equal
protection and benefit of the law.
(2) 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.
(3) 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.
(4) 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.
(5) Discrimination on one or more of the grounds listed in
subsection (3) is unfair unless it is established that the
discrimination is fair.
Human dignity
10. Everyone has inherent dignity and the right to have their dignity
respected and protected.
Life
11. Everyone has the right to life.
Freedom and security of the person
12. (1) Everyone has the right to freedom and security of the person,
which includes the right—
(a) not to be deprived of freedom arbitrarily or without just
cause;
(b) not to be detained without trial;
Chapter 2: Bill of Rights
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Chapter 2: Bill of Rights
(c) to be free from all forms of violence from either public
or private sources;
(d) not to be tortured in any way; and
(e) not to be treated or punished in a cruel, inhuman or
degrading way.
(2) Everyone has the right to bodily and psychological integrity,
which includes the right—
(a) to make decisions concerning reproduction;
(b) to security in and control over their body; and
(c) not to be subjected to medical or scientific experiments
without their informed consent.
Slavery, servitude and forced labour
13. No one may be subjected to slavery, servitude or forced labour.
Privacy
14. Everyone has the right to privacy, which includes the right not to
have—
(a) their person or home searched;
(b) their property searched;
(c) their possessions seized; or
(d) the privacy of their communications infringed.
Freedom of religion, belief and opinion
15. (1) Everyone has the right to freedom of conscience, religion,
thought, belief and opinion.
(2) Religious observances may be conducted at state or stateaided
institutions, provided that—
(a) those observances follow rules made by the appropriate
public authorities;
(b) they are conducted on an equitable basis; and
(c) attendance at them is free and voluntary.
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(3) (a) This section does not prevent legislation recognising—
(i) marriages concluded under any tradition, or a
system of religious, personal or family law; or
(ii) systems of personal and family law under any
tradition, or adhered to by persons professing a
particular religion.
(b) Recognition in terms of paragraph (a) must be
consistent with this section and the other provisions of
the Constitution.
Freedom of expression
16. (1) Everyone has the right to freedom of expression, which
includes—
(a) freedom of the press and other media;
(b) freedom to receive or impart information or ideas;
(c) freedom of artistic creativity; and
(d) academic freedom and freedom of scientific research.
(2) The right in subsection (1) does not extend to—
(a) propaganda for war;
(b) incitement of imminent violence; or
(c) advocacy of hatred that is based on race, ethnicity,
gender or religion, and that constitutes incitement to
cause harm.
Assembly, demonstration, picket and petition
17. Everyone has the right, peacefully and unarmed, to assemble, to
demonstrate, to picket and to present petitions.
Freedom of association
18. Everyone has the right to freedom of association.
Political rights
19. (1) Every citizen is free to make political choices, which includes
the right—
Chapter 2: Bill of Rights
9
Chapter 2: Bill of Rights
(a) to form a political party;
(b) to participate in the activities of, or recruit members for,
a political party; and
(c) to campaign for a political party or cause.
(2) Every citizen has the right to free, fair and regular elections for
any legislative body established in terms of the Constitution.
(3) Every adult citizen has the right—
(a) to vote in elections for any legislative body established
in terms of the Constitution, and to do so in secret; and
(b) to stand for public office and, if elected, to hold office.
Citizenship
20. No citizen may be deprived of citizenship.
Freedom of movement and residence
21. (1) Everyone has the right to freedom of movement.
(2) Everyone has the right to leave the Republic.
(3) Every citizen has the right to enter, to remain in and to reside
anywhere in, the Republic.
(4) Every citizen has the right to a passport.
Freedom of trade, occupation and profession
22. 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.
Labour relations
23. (1) Everyone has the right to fair labour practices.
(2) Every worker has the right—
(a) to form and join a trade union;
(b) to participate in the activities and programmes of a
trade union; and
(c) to strike.
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(3) Every employer has the right—
(a) to form and join an employers’ organisation; and
(b) to participate in the activities and programmes of an
employers’ organisation.
(4) Every trade union and every employers’ organisation has the
right—
(a) to determine its own administration, programmes and
activities;
(b) to organise; and
(c) to form and join a federation.
(5) 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).
(6) 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).
Environment
24. Everyone has the right—
(a) to an environment that is not harmful to their health or
wellbeing; and
(b) to have the environment protected, for the benefit of
present and future generations, through reasonable
legislative and other measures that—
(i) prevent pollution and ecological degradation;
(ii) promote conservation; and
(iii) secure ecologically sustainable development
and use of natural resources while promoting
justifiable economic and social development.
Chapter 2: Bill of Rights
11
Chapter 2: Bill of Rights
Property
25. (1) No one may be deprived of property except in terms of
law of general application, and no law may permit arbitrary
deprivation of property.
(2) Property may be expropriated only in terms of law of general
application—
(a) for a public purpose or in the public interest; and
(b) 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.
(3) 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—
(a) the current use of the property;
(b) the history of the acquisition and use of the property;
(c) the market value of the property;
(d) the extent of direct state investment and subsidy in the
acquisition and beneficial capital improvement of the
property; and
(e) the purpose of the expropriation.
(4) For the purposes of this section—
(a) 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; and
(b) property is not limited to land.
(5) 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.
(6) A person or community whose tenure of land is legally
insecure as a result of past racially discriminatory laws or
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practices is entitled, to the extent provided by an Act of
Parliament, either to tenure which is legally secure or to
comparable redress.
(7) 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.
(8) 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).
(9) Parliament must enact the legislation referred to in subsection
(6).
Housing
26. (1) Everyone has the right to have access to adequate housing.
(2) The state must take reasonable legislative and other measures,
within its available resources, to achieve the progressive
realisation of this right.
(3) 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.
Health care, food, water and social security
27. (1) Everyone has the right to have access to—
(a) health care services, including reproductive health care;
(b) sufficient food and water; and
(c) social security, including, if they are unable to support
themselves and their dependants, appropriate social
assistance.
Chapter 2: Bill of Rights
13
Chapter 2: Bill of Rights
(2) The state must take reasonable legislative and other measures,
within its available resources, to achieve the progressive
realisation of each of these rights.
(3) No one may be refused emergency medical treatment.
Children
28. (1) Every child has the right—
(a) to a name and a nationality from birth;
(b) to family care or parental care, or to appropriate
alternative care when removed from the family
environment;
(c) to basic nutrition, shelter, basic health care services and
social services;
(d) to be protected from maltreatment, neglect, abuse or
degradation;
(e) to be protected from exploitative labour practices;
(f) not to be required or permitted to perform work or
provide services that—
(i) are inappropriate for a person of that child’s age;
or
(ii) place at risk the child’s well-being, education,
physical or mental health or spiritual, moral or
social development;
(g) 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—
(i) kept separately from detained persons over the
age of 18 years; and
(ii) treated in a manner, and kept in conditions, that
take account of the child’s age;
(h) to have a legal practitioner assigned to the child by the
state, and at state expense, in civil proceedings affecting
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the child, if substantial injustice would otherwise result;
and
(i) not to be used directly in armed conflict, and to be
protected in times of armed conflict.
(2) A child’s best interests are of paramount importance in every
matter concerning the child.
(3) In this section “child” means a person under the age of 18
years.
Education
29. (1) Everyone has the right—
(a) to a basic education, including adult basic education;
and
(b) to further education, which the state, through reasonable
measures, must make progressively available and
accessible.
(2) 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, taking into
account—
(a) equity;
(b) practicability; and
(c) the need to redress the results of past racially
discriminatory laws and practices.
(3) Everyone has the right to establish and maintain, at their own
expense, independent educational institutions that—
(a) do not discriminate on the basis of race;
(b) are registered with the state; and
(c) maintain standards that are not inferior to standards at
comparable public educational institutions.
Chapter 2: Bill of Rights
15
Chapter 2: Bill of Rights
(4) Subsection (3) does not preclude state subsidies for
independent educational institutions.
Language and culture
30. 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.
Cultural, religious and linguistic communities
31. (1) Persons belonging to a cultural, religious or linguistic
community may not be denied the right, with other members
of that community—
(a) to enjoy their culture, practise their religion and use
their language; and
(b) to form, join and maintain cultural, religious and
linguistic associations and other organs of civil society.
(2) The rights in subsection (1) may not be exercised in a manner
inconsistent with any provision of the Bill of Rights.
Access to information
32. (1) Everyone has the right of access to—
(a) any information held by the state; and
(b) any information that is held by another person and that
is required for the exercise or protection of any rights.
(2) 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.
Just administrative action
33. (1) Everyone has the right to administrative action that is lawful,
reasonable and procedurally fair.
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(2) Everyone whose rights have been adversely affected by
administrative action has the right to be given written
reasons.
(3) National legislation must be enacted to give effect to these
rights, and must—
(a) provide for the review of administrative action by
a court or, where appropriate, an independent and
impartial tribunal;
(b) impose a duty on the state to give effect to the rights in
subsections (1) and (2); and
(c) promote an efficient administration.
Access to courts
34. 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.
Arrested, detained and accused persons
35. (1) Everyone who is arrested for allegedly committing an offence
has the right—
(a) to remain silent;
(b) to be informed promptly—
(i) of the right to remain silent; and
(ii) of the consequences of not remaining silent;
(c) not to be compelled to make any confession or
admission that could be used in evidence against that
person;
(d) to be brought before a court as soon as reasonably
possible, but not later than—
(i) 48 hours after the arrest; or
(ii) the end of the first court day after the expiry of the
48 hours, if the 48 hours expire outside ordinary
Chapter 2: Bill of Rights
17
Chapter 2: Bill of Rights
court hours or on a day which is not an ordinary
court day;
(e) at the first court appearance after being arrested, to
be charged or to be informed of the reason for the
detention to continue, or to be released; and
(f) to be released from detention if the interests of justice
permit, subject to reasonable conditions.
(2) Everyone who is detained, including every sentenced
prisoner, has the right—
(a) to be informed promptly of the reason for being
detained;
(b) to choose, and to consult with, a legal practitioner, and
to be informed of this right promptly;
(c) to have a legal practitioner assigned to the detained
person by the state and at state expense, if substantial
injustice would otherwise result, and to be informed of
this right promptly;
(d) to challenge the lawfulness of the detention in person
before a court and, if the detention is unlawful, to be
released;
(e) to conditions of detention that are consistent with human
dignity, including at least exercise and the provision, at
state expense, of adequate accommodation, nutrition,
reading material and medical treatment; and
(f) to communicate with, and be visited by, that person’s
(i) spouse or partner;
(ii) next of kin;
(iii) chosen religious counsellor; and
(iv) chosen medical practitioner.
(3) Every accused person has a right to a fair trial, which includes
the right—
(a) to be informed of the charge with sufficient detail to
answer it;
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(b) to have adequate time and facilities to prepare a
defence;
(c) to a public trial before an ordinary court;
(d) to have their trial begin and conclude without
unreasonable delay;
(e) to be present when being tried;
(f) to choose, and be represented by, a legal practitioner,
and to be informed of this right promptly;
(g) to have a legal practitioner assigned to the accused
person by the state and at state expense, if substantial
injustice would otherwise result, and to be informed of
this right promptly;
(h) to be presumed innocent, to remain silent, and not to
testify during the proceedings;
(i) to adduce and challenge evidence;
( j) not to be compelled to give self-incriminating evidence;
(k) to be tried in a language that the accused person
understands or, if that is not practicable, to have the
proceedings interpreted in that language;
(l) not to be convicted for an act or omission that was not
an offence under either national or international law at
the time it was committed or omitted;
(m) not to be tried for an offence in respect of an act or
omission for which that person has previously been
either acquitted or convicted;
(n) to the benefit of the least severe of the prescribed
punishments if the prescribed punishment for the
offence has been changed between the time that the
offence was committed and the time of sentencing; and
(o) of appeal to, or review by, a higher court.
(4) Whenever this section requires information to be given to a
person, that information must be given in a language that
the person understands.
Chapter 2: Bill of Rights
19
Chapter 2: Bill of Rights
(5) Evidence obtained in a manner that violates any right
in the Bill of Rights must be excluded if the admission of
that evidence would render the trial unfair or otherwise be
detrimental to the administration of justice.
Limitation of rights
36. (1) The rights in the Bill of Rights may be limited only in terms of
law of general application to the extent that the limitation is
reasonable and justifiable in an open and democratic society
based on human dignity, equality and freedom, taking into
account all relevant factors, including—
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.
(2) Except as provided in subsection (1) or in any other provision
of the Constitution, no law may limit any right entrenched in
the Bill of Rights.
States of emergency
37. (1) A state of emergency may be declared only in terms of an Act
of Parliament, and only when—
(a) the life of the nation is threatened by war, invasion,
general insurrection, disorder, natural disaster or other
public emergency; and
(b) the declaration is necessary to restore peace and order.
(2) A declaration of a state of emergency, and any legislation
enacted or other action taken in consequence of that
declaration, may be effective only—
(a) prospectively; and
(b) for no more than 21 days from the date of the declaration,
unless the National Assembly resolves to extend the
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declaration. The Assembly may extend a declaration of
a state of emergency for no more than three months
at a time. The first extension of the state of emergency
must be by a resolution adopted with a supporting
vote of a majority of the members of the Assembly. Any
subsequent extension must be by a resolution adopted
with a supporting vote of at least 60 per cent of the
members of the Assembly. A resolution in terms of this
paragraph may be adopted only following a public
debate in the Assembly.
(3) Any competent court may decide on the validity of—
(a) a declaration of a state of emergency;
(b) any extension of a declaration of a state of emergency;
or
(c) any legislation enacted, or other action taken, in
consequence of a declaration of a state of emergency.
(4) Any legislation enacted in consequence of a declaration of a
state of emergency may derogate from the Bill of Rights only
to the extent that—
(a) the derogation is strictly required by the emergency;
and
(b) the legislation—
(i) is consistent with the Republic’s obligations
under international law applicable to states of
emergency;
(ii) conforms to subsection (5); and
(iii) is published in the national Government Gazette as
soon as reasonably possible after being enacted.
(5) No Act of Parliament that authorises a declaration of a state of
emergency, and no legislation enacted or other action taken
in consequence of a declaration, may permit or authorise—
(a) indemnifying the state, or any person, in respect of any
unlawful act;
(b) any derogation from this section; or
Chapter 2: Bill of Rights
21
(c) any derogation from a section mentioned in column
1 of the Table of Non-Derogable Rights, to the extent
indicated opposite that section in column 3 of the Table.
Table of Non-Derogable Rights
1
Section
number
2
Section
title
3
Extent to which the right is protected
9 Equality With respect to unfair discrimination solely
on the grounds of race, colour, ethnic or
social origin, sex, religion or language.
10 Human
Dignity
Entirely
11 Life Entirely
12 Freedom
and
Security of
the person
With respect to subsections (1)(d) and (e)
and (2)(c).
13 Slavery,
servitude
and forced
labour
With respect to slavery and servitude
28 Children With respect to:
- subsection (1)(d) and (e);
- the rights in subparagraphs (i) and (ii) of
subsection (1)(g); and
- subsection 1(i) in respect of children of 15
years and younger.
Chapter 2: Bill of Rights
22
1
Section
number
2
Section
title
3
Extent to which the right is protected
35 Arrested,
detained
and
accused
persons
With respect to:
- subsections (1)(a), (b) and (c) and (2)(d);
- the rights in paragraphs (a) to (o) of
subsection (3), excluding paragraph (d)
- subsection (4); and
- subsection (5) with respect to the
exclusion of evidence if the admission of
that evidence would render the trial
unfair.
(6) Whenever anyone is detained without trial in consequence of
a derogation of rights resulting from a declaration of a state
of emergency, the following conditions must be observed:
(a) An adult family member or friend of the detainee must
be contacted as soon as reasonably possible, and
informed that the person has been detained.
(b) A notice must be published in the national Government
Gazette within five days of the person being detained,
stating the detainee’s name and place of detention and
referring to the emergency measure in terms of which
that person has been detained.
(c) The detainee must be allowed to choose, and be visited
at any reasonable time by, a medical practitioner.
(d) The detainee must be allowed to choose, and be visited
at any reasonable time by, a legal representative.
(e) A court must review the detention as soon as reasonably
possible, but no later than 10 days after the date the
person was detained, and the court must release the
detainee unless it is necessary to continue the detention
to restore peace and order.
Chapter 2: Bill of Rights
23
(f) A detainee who is not released in terms of a review
under paragraph (e), or who is not released in terms
of a review under this paragraph, may apply to a court
for a further review of the detention at any time after
10 days have passed since the previous review, and
the court must release the detainee unless it is still
necessary to continue the detention to restore peace
and order.
(g) The detainee must be allowed to appear in person before
any court considering the detention, to be represented
by a legal practitioner at those hearings, and to make
representations against continued detention.
(h) The state must present written reasons to the court to
justify the continued detention of the detainee, and
must give a copy of those reasons to the detainee at
least two days before the court reviews the detention.
(7) If a court releases a detainee, that person may not be
detained again on the same grounds unless the state first
shows a court good cause for re-detaining that person.
(8) Subsections (6) and (7) do not apply to persons who are not
South African citizens and who are detained in consequence
of an international armed conflict. Instead, the state must
comply with the standards binding on the Republic under
international humanitarian law in respect of the detention of
such persons.
Enforcement of rights
38. Anyone listed in this section has the right to approach a competent
court, alleging that a right in the Bill of Rights has been infringed or
threatened, and the court may grant appropriate relief, including
a declaration of rights. The persons who may approach a court
are—
(a) anyone acting in their own interest;
Chapter 2: Bill of Rights
24
(b) anyone acting on behalf of another person who cannot
act in their own name;
(c) anyone acting as a member of, or in the interest of, a
group or class of persons;
(d) anyone acting in the public interest; and
(e) an association acting in the interest of its members.
Interpretation of Bill of Rights
39. (1) When interpreting the Bill of Rights, a court, tribunal or
forum—
(a) must promote the values that underlie an open and
democratic society based on human dignity, equality
and freedom;
(b) must consider international law; and
(c) may consider foreign law.
(2) When interpreting any legislation, and when developing
the common law or customary law, every court, tribunal or
forum must promote the spirit, purport and objects of the
Bill of Rights.
(3) The Bill of Rights does not deny the existence of any other
rights or freedoms that are recognised or conferred by
common law, customary law or legislation, to the extent that
they are consistent with the Bill.
Chapter 2: Bill of Rights
25
INSTITUTIONS THAT MAY BE APPROACHED
REGARDING YOUR HUMAN RIGHTS
1. The Office of the Public Protector
The Office of the Public Protector aims to fulfil its constitutional
mandate to strengthen constitutional democracy by conducting
investigations into alleged improper conduct by organs of State,
facilitating resolution of disputes, reporting and recommending
remedial action and enhancing awareness about the role and
responsibilities of the Public Protector.
Contact details
Physical address: 175 Lunnon Street
Hillcrest Office Park
Pretoria
0083
Postal address: Private Bag X677
Pretoria
0001
Telephone number: 012 366 7000
Toll free: 0800 11 20 40
Fax number: 012 362 3473 / 086 575 3292
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Website: www.pprotect.org
Institutions that may be approached regarding your Human Rights
26
Institutions that may be approached regarding your Human Rights
2. The South African Human Rights Commission
The South African Human Rights Commission is a national institution
established to entrench constitutional democracy through the
promotion and protection of human rights by addressing human
rights violations and seeking effective redress for such violations
monitoring and assessing the observance of human rights raising
awareness of human rights issues and education and training on
human rights.
Contact details
Physical address: Braampark Forum 3,
33 Hoofd Street
Braamfontein
Johannesburg
Postal address: Private Bag X2700
Houghton
Johannesburg
2041
Telephone number: 011 877 3600
Fax number: 011 403 6621
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Website: www.sahrc.org.za
27
Institutions that may be approached regarding your Human Rights
3. The Commission for the Promotion and Protection of the
Rights of Cultural, Religious and Linguistic Communities
The Commission for the Protection of the Rights of Cultural, Religious
and Linguistic Communities (hereafter the CRL Commission) aims
to promote and develop peace, friendship, humanity, tolerance and
national unity among cultural, religious and linguistic communities.
Contact details
Physical address: Braampark Forum 4,
33 Hoofd Street
Braamfontein
Johannesburg
Postal address: Private Bag X 90 000
Houghton
2041
Telephone number: 011 537 7631
Fax number: 011 880 3495 / 086 660 8986
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Website: www.crlcommission.org.za
28
4. Commission for Gender Equality
The Commission for Gender Equality (CGE) has been established to
promote and respect gender equality and to ensure the attainment
of gender equality in all sectors of communities. Accordingly the CGE
strives to establish a society free from gender discrimination and
all forms of oppression, in which people will have the opportunity
and means to realise their full potential, regardless of race, class, sex,
religion, sexual orientation, disability or geographic location.
Contact details
Physical address: Constitution Hill
Women’s Jail East Wing
2 Kotze Street
Braamfontein
Johannesburg
Postal address: P.O Box 32175
Braamfontein
2017
Telephone number: 011 403 7182
Fax number: 011 403 7188
E-mail address: This email address is being protected from spambots. You need JavaScript enabled to view it.
Website: www.cge.org.za
Institutions that may be approached regarding your Human Rights
29
5. The Office of the Public Service Commission
The Office of the Public Service Commission derives its mandate
from sections 195 and 196 of the Constitution. The PSC is tasked and
empowered to, amongst others, investigate, monitor, and evaluate
the organization and administration of the Public Service.
This mandate also entails the evaluation of achievements, or lack
thereof of Government programmes. The PSC also has an obligation
to promote measures that would ensure effective and efficient
performance within the Public Service and to promote values and
principles of public administration as set out in the Constitution,
throughout the Public Service.
Contact details
Physical address: Commission House
Cnr Hamilton & Ziervogel Streets
Pretoria
Postal address: Private Bag X121
Pretoria
0083
Telephone number: 012 352 1000
Fax number: 012 325 8382
Email address: This email address is being protected from spambots. You need JavaScript enabled to view it.
Website: www.psc.gov.za
Institutions that may be approached regarding your Human Rights
30
6. Department of Justice and Constitutional Development
The Department of Justice and Constitutional Development has a
Branch: Constitutional Development. The purpose of the Branch is
to promote, amend, and develop the Constitution, human rights and
participatory democracy on behalf of government.
Contact details
Physical address: 329 Pretorius Street
(c/o Pretorius & Sisulu Streets)
First Floor, Momentum Building
Pretoria
Postal address: Private Bag X81
Pretoria
0001
Telephone number: 012 315 1111
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Website: www.justice.gov.za
Institutions that may be approached regarding your Human Rights
31
7. Legal Aid South Africa
Legal Aid South Africa is an independent statutory body established
with the aim to give legal aid or to make legal aid available to indigent
persons within its financial means. It also provides legal representation
at State expense, as set out in the Constitution and relevant legislation
giving content to the right to legal representation at State expense.
Contact details
For your closest Legal Aid South Africa regional office, justice centre
or satellite office, contact Legal Aid South Africa as follows:
Physical address: 29 De Beer Street
Braamfontein
Johannesburg
2017
Postal address: Private Bag X76
Braamfontein
2017
Telephone: 011 877 2000
Toll free number: 0800 110 110
Fax number: 011 877 2222
Email address: This email address is being protected from spambots. You need JavaScript enabled to view it.
Website: www.legal-aid.co.za
Institutions that may be approached regarding your Human Rights
NOTES
Department of Justice and Constitutional Development
Tel: 012 315 1111
Private Bag X81, Pretoria, 0001
This email address is being protected from spambots. You need JavaScript enabled to view it.
www.justice.gov.za