Section 7 reads "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. The state must respect, protect, promote and fulfil the rights in the Bill of Rights." However, "The rights in the Bill of Rights are subject to the limitations contained or referred to in section 36, or elsewhere in the Bill."
Section 8 also provides for due process, stating "When applying a provision of the Bill of Rights to a natural or juristic person in terms of subsection (2), a court 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 may develop rules of the common law to limit the right, provided that the limitation is in accordance with section 36(1). 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."
The Section starts with "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 Section, like the Universal Declaration of Human Rights prohibits all discrimination "on one or more grounds, including...", but specifically lists the following grounds "race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth." This is list is more extensive than the equality provisions in most human rights instruments, noteworthy are the distinction between "gender" and "sex", the inclusion of "pregnancy", the distinction between "race" and "colour", the inclusion of "age" and "disability".
Section 8 again not only indicates negative responsibilities, in that the State is not allowed to discriminate, but also positive responsibilities in that it provides that "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." See negative and positive rights.
Section 8 includes the limitation "Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair." This limitation allows for the South African government to enact the Black Economic Empowerment program, which seeks to redress the inequalities of Apartheid by giving previously disadvantaged groups (black Africans, Coloureds and Indians who are SA citizens) economic opportunities previously not available to them.
The Section starts with “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; and not to be treated or punished in a cruel, inhuman or degrading way.”
The Section also covers reproductive rights, although not extensively defined. Adding to this the Section grants “security in and control over” the own body and to not be subjected to medical or scientific experiments without informed consent. These two provisions are unique amongst human rights instruments.
The Section reads “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; and not to be subjected to medical or scientific experiments without their informed consent.
The Section expands on the Right to freedom of religion by stating “ 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; and attendance at them is free and voluntary.
The Section also seeks to define how the right to freedom of religion, belief and opinion is balanced against tradition and custom, by stating “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. “ The Section also provides that “Recognition in terms of paragraph (a) must be consistent with this section and the other provisions of the Constitution.”
Section 16 contains the following limitations to freedom of expression “The right in subsection (1) does not extend to propaganda for war; incitement of imminent violence; or advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.”
The Section also safeguards public participation by the means of election by stating “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.” These provisions contain the implied limitation that only citizens of South Africa have a right to vote, and that they must be “adults”.
The Section states “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.”
The Section states “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; and to strike.”
With regards to employers the Section states “Every employer has the right to form and join an employers' organisation; and to participate in the activities and programmes of an employers' organisation.”
The Section lists the following rights for trade unions and employer organisations “Every trade union and every employers' organisation has the right to determine its own administration, programmes and activities; to organise; and to form and join a federation. Every trade union, employers' organisation and employer has the right to engage in collective bargaining.”
The Section concludes with the following limitation “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).”
Article 24 specifically puts environmental rights into the context of human health, stating “Everyone has the right to an environment that is not harmful to their health or well-being;” As well as recognising the rights of future generations in the context of sustainable development by stating “and 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.”
The Section states “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; and 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 Section makes detailed provisions on compensation by stating “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.”
The Section sets out the context in which these provisions may be of relevance, in stating “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; and 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.”
Section 26 places positive responsibilities upon the state in stating that “The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right.”
Section 26 also grants the right to due process with regards to housing, stating that “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.”
Section 27 sets out a number of rights with regards to health, including right to access to health care, including reproductive rights. Section 27 also enshrines the right to social security, the right to food, and the right to water. Section 27 also states that “No one may be refused emergency medical treatment.”
Again, positive responsibilities are placed on the state, the Section stating that “The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights.“
The rights listed are as follows
The right to education is amongst others recognised in the Universal Declaration of Human Rights, and Section 29 expands on this provision in detail with regards to language, and the right to establishment self-funded of private schools.
The detailed provisions with regards to language reflects the fact that South Africa is a culturally diverse nation and has 11 official languages. Chapter 1 (Founding Provisions), Section 6 (Languages) of the Constitution of South Africa is the basis for government language policy, and Section 29 (Chapter 2, Bill of Rights) places positive responsibilities upon the state in this regard. Section 29 states that “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 equity; practicability; and the need to redress the results of past racially discriminatory laws and practices.”
Section 31 states that “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.”
Section 31 concludes with the following limitation “The rights in subsection (1) may not be exercised in a manner inconsistent with any provision of the Bill of Rights.”
Section 32 states that “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.”
Section 32 not only provides for access to information held by the state, but also from a third party if it is required to excercie or protect any right. This makes this provision unique, even among freedom of information legislation, which commonly only apply to public bodies. Section 32 applies to public bodies, as well as private bodies, including companies.
AGRICULTURE COMMISSIONER TROXLER, SOIL AND WATER FOUNDATION TO ANNOUNCE ARRIVAL OF PASTURE-RENOVATION DRILLS ON MAY 29 IN WAYNESVILLE
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