Chapter Two of the Constitution of South Africa

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Constitution of the Republic of South Africa, 1996: Chapter 2

Chapter Two of the Constitution of South Africa contains the Bill of Rights, a human rights charter that protects the civil, political and socio-economic rights of all people in South Africa. The rights in the Bill apply to all law, including the common law, and bind all branches of the government, including the national executive, Parliament, the judiciary, provincial governments, and municipal councils. Some provisions, such as those prohibiting unfair discrimination, also apply to the actions of private persons.

South Africa's first bill of rights was drafted primarily by Kader Asmal and Albie Sachs in 1988 from Asmal's home in Dublin, Ireland.[1] The text was eventually contained in Chapter 3 of the transitional Constitution of 1993, which was drawn up as part of the negotiations to end apartheid. This "interim Bill of Rights", which came into force on 27 April 1994 (the date of the first non-racial election), was largely limited to civil and political rights (negative rights).[2] The current Bill of Rights, which replaced it on 4 February 1997 (the commencement date of the final Constitution), retained all of these rights and added a number of new positive economic, social and cultural rights

## Application[edit]

The extent of the jurisdiction and application of the Bill of Rights (Tswana: molaotlhomo wa ditshwanelo; Sotho: bili ya ditokelo; Northern Sotho: molao wa ditokelo; Afrikaans: handves van regte; Zulu: umqulu wamalungelo; Southern Ndebele: ivikelamalungelo; Xhosa: usomqulu wamalungelo; Swazi: umculu wemalungelo; Venda: mulayo wa pfanelo dza vhathu; Tsonga: nxaxamelo wa timfanelo) is defined by sections seven and eight, entitled "Rights" and "Application" respectively. Section seven provides that the rights apply to "all people in our country" (although certain rights are limited to citizens) and requires the state (by which is meant government at all levels) to "respect, protect, promote and fulfill" the Bill of Rights. It also notes that the rights in the Bill are subject to the limitations provided for in section thirty-six and elsewhere in the Bill; see Limitations below.

Although section two already provides for the supremacy of the Constitution over all laws and government actions, section eight explicitly states that the Bill of Rights applies to all laws and binds all branches and organs of government. It further states that the provisions of the Bill also bind private parties to the extent that they are applicable, given the nature of the rights in question, and requires the courts to develop the common law to this effect. Finally, section eight extends the benefits of the Bill of Rights to juristic persons, taking into account the nature of the rights and the juristic persons in question. Thus, for example, the right to human dignity and the right to health care clearly only apply to actual human beings, while the right to freedom of expression and the property right apply also to corporations.

## Rights[edit]

### Equality[edit]

Main article: Section Nine of the Constitution of South Africa

Section 9 contains strong provisions on legal and social equality. Section 9 is in line with internationally recognised human rights law, but the provision is more detailed than for example in the Universal Declaration of Human Rights.

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 list is more extensive than the equality provisions in most human rights instruments, noteworthy is the distinction between "gender" and "sex", the inclusion of "pregnancy", the distinction between "race" and "colour", and 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) preference treatment in employment, tenders, etc.

### Human dignity[edit]

Section 10 states "Everyone has inherent dignity and the right to have their dignity respected and protected". The bill of rights is the basis on which constitutional matters form. It consists of several limitations including violating people's dignity in a form of body shaming, race, sex, cultural background, social background, and wealth.

### Life[edit]

Main article: Section Eleven of the Constitution of South Africa

> §11: Everyone has the right to life.

Section 11 protects a universal right to life. It is most prominently associated with the abolition of capital punishment in South Africa, which was the result of the Constitutional Court's ruling in S v Makwanyane. Though Makwanyane was decided under the Interim Constitution, the Constitutional Court later upheld the ruling under the 1996 Constitution, including in Mohamed v President. Section 11 is also implicated in the use of lethal force in arrest or in self-defence. The Constitutional Court considered this question in Ex Parte Minister of Safety and Security: In re S v Walters.

As suggested by the Makwanyane ratio, the right to life is universal and is not forfeited by wrongful or criminal conduct.[3] However, in Christian Lawyers Association v Minister of Health, the Transvaal High Court established that foetuses do not have a right to life in terms of section 11.

### Freedom and security of the person[edit]

> §12: 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. 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.
>  §13: No one may be subjected to slavery, servitude or forced labour.

Section 12 protects two sets of universal personal liberties. First, under section 12(1), it protects the the right to "freedom and security of the person", including the right "not to be deprived of freedom arbitrarily or without just cause" and the right to protected from detention without trial; from torture; from cruel, inhuman or degrading treatment; and from "all forms of violence from either public or private sources". Stuart Woolman views section 12(1) as providing "both substantive protection and procedural protection for any deprivation of physical liberty".[3] Second, section 12(2) enshrines the right to bodily integrity and psychological integrity, including an individual's 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". Related to this family of section 12 rights is the section 13 protection against being subjected to slavery, servitude, or forced labour.

Many of these rights played an important role in the Constitutional Court's early jurisprudence, particularly insofar as they were "refracted through the prism of dignity" by the court.[4] Section 12 ultimately had particular import for state liability under the South African law of delict and for the state's treatment of detained and convicted persons.[4] Relevant Constitutional Court judgments in this connection include De Lange v Smuts, S v Dodo, and Mohamed v President.

More directly, the protections for reproductive freedom, located in in section 12(2)(a), secure the legal status of abortion in South Africa. In Christian Lawyers Association v Minister of Health II, Transvaal High Court Judge Phineas Mojapelo upheld the Choice on Termination of Pregnancy Act 92 of 1996 on the basis that section 12(2) protected a right to abortion; legislation enshrining this right was therefore not only constitutionally permitted but, "in a sense", constitutionally required.[5] It also likely that, in a similar fashion, section 12(2)(a) entails a right of access to contraception.[3]

### Privacy[edit]

> §14: Everyone has the right to privacy, which includes the right not to have— their person or home searched; their property searched; their possessions seized; or the privacy of their communications infringed.

Section 14 protects a universal right to privacy. In addition to the general right to privacy, the provisions protects four specific aspects of privacy, relating respectively to search and seizure and private communications: it prohibits searches of an individual's home, person, or property; the seizure of their possessions; or infringements upon "the privacy of their communications".

The Constitutional Court, considering the content of the right to privacy for the first time, held in Bernstein v Bester that the scope of the privacy right extends only to contexts in which an individual has a legitimate expectation of privacy (akin to the American test). Moreover, per Justice Laurie Ackermann, the court had that the right has more force in more personal contexts:

> it is only the inner sanctum of a person, such as his/her family life, sexual preference and home environment, which is shielded from erosion by conflicting rights of the community... Privacy is acknowledged in the truly personal realm, but as a person moves into communal relations and activities such as business and social interaction, the scope of personal space shrinks accordingly.[6]

Other important cases concerning the right to privacy include Mistry v Interim National Medical and Dental Council of South Africa, Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors, Case v Minister of Safety and Security, De Reuck v Director of Public Prosecutions, and Minister of Justice and Constitutional Development v Prince, all judgments in criminal law or criminal procedure.

### Freedom of religion, belief and opinion[edit]

> §15(1): Everyone has the right to freedom of conscience, religion, thought, belief and opinion.

Section 15(1) provides for the universal right to freedom of conscience; freedom of religion; and freedom of thought, belief, and opinion. The right to freedom of religion has generated the largest body of case law, including such cases as Christian Education South Africa v Minister of Educationand Minister of Home Affairs v Fourie. In Christian Education, as well as in the earlier matter of S v Lawrence; S v Negal; S v Solberg, the Constitutional Court adopted the Supreme Court of Canada's definition of freedom of religion, as articulated in R v Big M Drug Mart.[7] Under this definition, freedom of religion "includes both the right to have a belief and the right to express such belief in practice".[4] In addition, the right to practise one's religion and form religious associations is explicitly protected elsewhere in the Bill of Rights (see below).[8]

Sections 15(2) and 15(3) clarify the scope and implication of the freedoms protected in section 15(1). Section 15(2) provides that, "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." Constitutional negotiators apparently included this provision in an overt effort to preclude a debate about prayer in public schools.[3] Meanwhile, section 15(3) concerns South African family law and the possible codification of customary law in this area: it provides that legislation may be enacted to recognise "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", provided that such recognition is consistent with the Constitution.

### Freedom of expression[edit]

> §16(1): 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; and academic freedom and freedom of scientific research.

Main article: Section Sixteen of the Constitution of South Africa

Section 16(1) protects a universal right to freedom of expression, including explicit protections for freedom of the press, "freedom of artistic creativity", and academic freedom. However, the scope of freedom of expression is expressly limited by section 16(2), which provides that the right to freedom of expression "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".

In Islamic Unity Convention v Independent Broadcasting Authority, the Constitutional Court confirmed that the categories of expression enumerated in section 16(2) fall outside of the ambit of constitutionally protected speech; however, it also held that section 16(1) protects any expression that is not specifically excluded under section 16(2), and any regulation of such expression limits the section 16(1) right.[9] Thus, in line with Islamic Unity Convention, South African courts have interpreted freedom of expression broadly.[3] Notably, the Constitutional Court held in De Reuck v Director of Public Prosecutions that child pornography is a form of protected expression, though it is "of little value", "does not implicate the core values of the right", and "is found on the periphery of the right".[10] The Supreme Court of Appeal has held that commercial speech also constitutes protected expression.[11]

The Equality Act of 2000 contains statutory prohibitions on hate speech which are broader than the limitations implied by section 16(2). In Qwelane v South African Human Rights Commission, the Constitutional Court considered whether those statutory prohibitions are consistent with the section 16 right to freedom of expression.[12]

### Assembly and protest[edit]

Section 17 states "Everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions". ..

### Freedom of association[edit]

Section 18 states "Everyone has the right to freedom of association".

### Political rights[edit]

Section 19 sets out a detailed set of political rights, stating "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; and to campaign for a political party or cause.“

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".

### Citizenship[edit]

Section 20 states that "No citizen may be deprived of citizenship".

### Freedom of movement and residence[edit]

Section 21 provides that "Everyone has the right to freedom of movement. Everyone has the right to leave the Republic". Hence these provisions apply to all humans, while the following are limited to South African citizens. "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".

### Freedom of trade, occupation and profession[edit]

Section 22 enshrines freedom of trade occupation and profession. This set of rights is unique among human rights instruments.

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". It is important to note that this right is not unqualified. It may be restricted by the law if it is in the interests of the public in an open, fair, and democratic environment.

### Labour relations[edit]

Section 23 sets out several labour rights, including the right to collective bargaining, and to join a trade union. The Section also stipulates the rights of the employer, as well as the rights of a trade union or employers' organisation, in great detail, which is unique amongst human rights instruments.

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 regard 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 recognize 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[edit]

Section 24 sets out a number of environmental rights, which is unique in terms of human rights instruments, although environmental rights are recognized in the African Charter on Human and Peoples' Rights, although not in detail, and the Stockholm Declaration.

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".

### Property[edit]

Section 25 enshrines the right to property, which is a standard international human right. The Section is very detailed, making it unique among human rights instruments. The Section amongst others covers arbitrary deprivation of property and compensation in great detail, which is in the context of the South African post-apartheid era and the Black Economic Empowerment program.

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, 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 that 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".

### Housing[edit]

> §26: 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.

See also: Homelessness in South Africa and Land invasion in South Africa

Section 26 grants two universal housing rights: "the right to have access to adequate housing", and the right to protection from arbitrary eviction. The right of access to housing, set out in section 26(1), is complemented, in section 26(2), by a positive responsibility on the state to take reasonable measures to achieve that right's "progressive realisation". This pair of provisions was interpreted by the Constitutional Court in the landmark case of Government v Grootboom, which held that the right to housing is justiciable and enforceable.[13]

Section 26(3), on the right to due process in evictions, provides in part 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." In Jaftha v Schoeman, the Constitutional Court found that this right seeks to correct the apartheid history of forced removals by protecting security of tenure. The rights of persons facing eviction are protected most directly by the Extension of Security of Tenure Act 62 of 1997 and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998. However, the Constitutional Court has applied the Constitution to evictions in cases including Port Elizabeth Municipality v Various Occupiers, President v Modderklip Boerdery, Residents of Joe Slovo Community v Thubelisha Homes, and Occupiers of 51 Olivia Road, Berea Township and 197 Main Street Johannesburg vs City of Johannesburg; many of these cases involve evictions from unlawfully occupied land.[3]

Per Jaftha v Schoeman, housing rights have significant implications for South African civil procedure, particularly as concerns the award of writs of execution against debtors' homes. Cases dealing with the consequences of Jaftha include Menqa v Markom, Standard Bank v Saunderson, and Gundwana v Steko Development.[14]

### Basic services and social security[edit]

> §27: Everyone has the right to have access to— health care services, including reproductive health care; sufficient food and water; and social security, including, if they are unable to support themselves and their dependants, 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.

Section 27(1) enshrines three further universal socioeconomic rights, which David Bilchitz suggests are considered together because they are interdependent: each is valueless without the other.[3] As in the case of the right to housing, the state is given a positive responsibility to take reasonable measures to achieve the "progressive realisation" of each right, set out in section 27(2).

The first section 27(1) right is the right of access to health care services, including access to reproductive health care; in addition, section 27(3) provides explicitly that, "No one may be refused emergency medical treatment." Important cases litigating this right include Soobramoney v Minister of Health, KwaZulu-Natal and Minister of Health v Treatment Action Campaign No. 2. Soobramoney also established that the section 27(3) right to emergency medical treatment is to be interpreted narrowly, as covering acute medical conditions arising from sudden or unexpected events; in particular, it does not include ongoing treatment for chronic illnesses, even if such illness is life-threatening.

The second right in section 27(1) is the right of access to sufficient food and water. The right of access to food is seldom litigated, though it is sometimes a consideration in cases where individuals are evicted from land which they used as a resource to produce food.[3] The right of access to water was considered by the Constitutional Court for the first time in Mazibuko v City of Johannesburg.[15] Access to water and sanitation has also been considered as an element of the access to adequate housing that is protected in section 26(1), as in Residents of Joe Slovo Community.[3]

Finally, section 27(1) provides for the right of access to social security, including a right to "appropriate social assistance" for individuals who are "unable to support themselves and their dependants". The landmark case on the interpretation of this right is Khosa v Minister of Social Development, on the exclusion of non-citizens from government social welfare programmes in South Africa. The right to social assistance was also closely implicated in Black Sash Trust v Minister of Social Development, on the Department of Social Development's failure to secure the orderly administration of social grants during the grants crisis of 2017.

### Children's rights[edit]

> §28(2): A child's best interests are of paramount importance in every matter concerning the child.

Section 28 provides for a number of rights held by children, with section 28(3) defining children as persons under the age of the 18 years. Perhaps most importantly, section 28(2) provides for the paramountcy of the best interests of the child, a principle imported from the United Nations Convention on the Rights of the Child and developed extensively in South African jurisprudence.[16][17] In addition, section 28(1) lists nine rights that are held uniquely by children.

In respect of domestic and family life, children have 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; [and] to be protected from maltreatment, neglect, abuse or degradation". Two further rights concern child labour: children have the right "to be protected from exploitative labour practices" and "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".

In criminal procedure, children have the right "not to be detained except as a measure of last resort". A child who is detained "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". In civil procedure, children have the right "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". Finally, children have the right "not to be used directly in armed conflict, and to be protected in times of armed conflict".

### Education[edit]

See also: Education in South Africa

Section 29 enshrines the universal right to education and defines the positive responsibilities of the state in this respect. It has been described as a "hybrid right": while section 29(1) protects a socioeconomic right, sections 29(2) and 29(3) concern civil rights.[18] Section 29 is generally viewed as emanating closely from the apartheid context in which the Bill of Rights was negotiated: the right to education had a "restitutional" dimension, given the effects of the Bantu Education system, but also a protective dimension for those who treasured Afrikaans as a medium of instruction or were otherwise reluctant to submit to state control of education.[3]

> §29(1): 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.

Under section 29(1)(a), there is a universal right to basic education, including adult basic education, and a universal right to further education is provided in section 29(1)(b). In the case of further education, as in the case of housing and basic services, the state's obligation is to take "reasonable measures" to make the resource "progressively available and accessible". The right to basic education is not qualified in that manner; in Governing Body of the Juma Musjid Primary School v Essay, the Constitutional Court confirmed that it is "immediately realisable", unlike some of the other socioeconomic rights.[19]

Yet the wording of section 29(1)(a) does not entail that basic education must be free of charge,[3] and, in that respect, it is less strong than the Universal Declaration of Human Rights, which provides for free basic education.[18] However, courts have interpreted the section 29(1)(a) right to basic education to extend to access to the equipment that is necessary for such education:[20] in Minister of Basic Education v Basic Education for All, the Supreme Court of Appeal confirmed that section 29(1)(a) entitled all learners at public schools "to be provided with every textbook prescribed for his or her grade before commencement of the teaching of the course for which the textbook is prescribed".[21]

Section 29(2) provides further 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 effect this right, the state is required to "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." Given South Africa's linguistic diversity and the sensitivity of language policy, this provision has often been litigated;[3] related cases decided by the Constitutional Court include Mpumalanga Department of Education v Hoërskool Ermelo.[22]

Finally, section 29(3) provides for a universal right of individuals "to establish and maintain, at their own expense, independent educational institutions that— do not discriminate on the basis of race; are registered with the state; and maintain standards that are not inferior to standards at comparable public educational institutions." Under section 29(4), this provision "does not preclude state subsidies for independent educational institutions". The Constitutional Court considered the application of section 29(3) in AB v Pridwin Preparatory School.[23]

### Culture, language, and communities[edit]

> §30(1): Everyone has the right to use the language and to participate in the cultural life of their choice.

Sections 30 and 31 consider further cultural rights, religious rights, and linguistic rights. Section 30(1) provides that, "Everyone has the right to use the language and to participate in the cultural life of their choice". This freedom applies both in the private sphere and in the public sphere, since its application is not limited to any specific context;[24] the Constitutional Court found in the Certification judgment that the right to use the language of one's choice "would extend to communications with the government, subject to reasonable limitations where they would be warranted."[25]

> §31(1): 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 applies to "persons belonging to a cultural, religious or linguistic community", whom it provides "may not be denied the right... 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 provision extends to an individual community member's freedom to exercise these freedoms "with other members of that community", leaving it somewhat ambiguous whether the section 31 rights are group rights or individual rights. They are generally referred to as "associational rights",[3] and Justice Sandile Ngcobo wrote in Prince v President of the Law Society that section 31 "emphasises and protects the associational nature of cultural, religious and language rights", which are protected at the individual level in section 30(1) and, in the case of religion, section 15(1).[26]

In Christian Education South Africa v Minister of Education, Justice Albie Sachs pointed out, for a unanimous court, that section 31 "closely parallels" article 27 of the International Covenant on Civil and Political Rights, except that it refers to "communities" rather than "minorities": thus, "the interest protected by section 31 is not a statistical one dependent on a counter-balancing of numbers, but a qualitative one based on respect for diversity".[4]

Both section 30 and section 31 conclude with internal limitations in section 30(2) and 31(2) respectively; in each case, the limitation is the proviso that the rights referred to may not be exercised "in a manner inconsistent with any provision of the Bill of Rights". In respect of section 31(2), Sachs found in Christian Education that the limitation sought "expressly to acknowledge the supremacy of the Constitution", preventing associational rights from "being used to 'privatise' constitutionally offensive group practices" or to shield "oppressive features of internal relationships primarily within the communities concerned".[4] Viewed in this light, these internal limitations take a clear stance on the so-called paradox of tolerance.[3]

### Access to information[edit]

> §32(1): 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 provides for a universal right of access to information of two kinds: "any information held by the state", under section 32(1)(a), and "any information that is held by another person and that is required for the exercise or protection of any rights", under section 31(b). It is among the most advanced such provision in any constitution worldwide.[27]

In the Certification judgment, the Constitutional Court held that section 32 envisaged access to state information as a means to "a wider purpose, namely, to ensure that there is open and accountable administration at all levels of government";[25] in subsequent jurisprudence in lower courts, it was similarly linked to the founding constitutional values of "accountability, responsiveness and openness".[3] The Constitutional Court affirmed this connection in My Vote Counts v Minister of Justice, in which it also held that access to certain kinds of information – in this case, information about political parties' sources of funding – was essential for the effective exercise of the political rights protected in section 19.[28]

Section 32(2) of the Constitution requires the enactment of national freedom of information legislation to give effect to the right of access to information, with due provision "for reasonable measures to alleviate the administrative and financial burden on the state". The legislation thus enacted was the Promotion of Access to Information Act 2 of 2000 (PAIA). The Constitutional Court held in My Vote Counts v Speaker that, under the principle of subsidiarity, section 32 rights are henceforth justiciable as claims under, or challenges to, PAIA.

### Just administrative action[edit]

See also: Administrative law in South Africa

Section 33 states that "Everyone has the right to administrative action that is lawful, reasonable and procedurally fair". This section is unique amongst human rights instruments in terms of its detail on administrative due process.

### Access to courts[edit]

Section 34 effectively provides for the right to a fair trial. It states "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[edit]

Section 35 is a detailed list of rights, or right to due process. The Section lists rights with regard to arrest, court appearance, detention, and fair trial.

## Limitations[edit]

Rights contained in the Bill of Rights are not absolute and may be limited by way of specific limitation clauses where individual rights are subject to limitations set out in the individual Sections, e.g. Section 9 on equality. In addition, the Constitution provides a General Limitation Clause at Section 36, which provides for all rights in the Bill of Rights to be limited in terms of law of general application and that "limitations must be reasonable and justifiable in an open and democratic society based on human dignity, equality, and freedom." Any limitation must therefore be reasonable and may only be made with good cause. Limits should also be less restrictive.

Organs of state, such as the judiciary, the legislature, or the executive, may invariably limit rights in carrying out their functions. For example, by limiting the freedom of a prisoner. Further, because of the horizontal application of the Bill of Rights, rights may be limited by the actions or decisions of other persons. The courts are empowered to test the validity of the limitation in terms of S36.

Section 36 provides certain factors that must be taken into account by the courts when determining if a limitation is reasonable and justifiable:

* The nature of the right.
* The importance of the limitation
* The nature and extent of the limitation
* The relation between the limitation and its purpose, and
* Less restrictive means to achieve the purpose.

These factors are not absolute and other factors that the court may deem necessary may also be taken into account. When the nature of the right is considered, the courts will have to take into account the content of the right, the importance of the right and the interest which is protected. It is, for instance, very difficult to justifiably limit the right to life as the Constitutional Court held in S v Makwanyane where capital punishment was abolished. The promotion and protection of a permissible or lawful public interest will be important when considering the limitation and its purpose. Further, the Constitution requires a less restrictive means to be considered, rather than limiting the rights of an individual, in achieving that purpose.[29]

### Comparison with other human rights instruments[edit]

The limitations clause under section 36 has been compared to similar clauses in the European Convention on Human Rights. Specifically, there are limits on privacy rights (Section 8(2)), "except such as is in accordance with the law and is necessary in a democratic society", limits on freedom of thought and religion (art. 9(2)), "subject only to such limitations as are prescribed by law and are necessary for a democratic society," etc. In Canada, the Canadian Charter of Rights and Freedoms was adopted in 1982. Section 1 of that Charter, like section 36 of the South African law, states that rights are "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."[30]

## References[edit]

1. ^ "Tánaiste at the unveiling of a plaque commemorating South Africa's Bill of Rights".
2. ^ Cockrell, Alfred (July 1997). "The South African Bill of Rights and the 'Duck/Rabbit'". Modern Law Review. 60 (4): 513–537. doi:10.1111/1468-2230.00096.
3. ^ a b c d e f g h i j k l m n o Woolman, Stu; Bishop, Michael (2013). Constitutional Law of South Africa (2nd ed.). Juta & Company. ISBN 978-0-7021-9990-5.
4. ^ a b c d e Christian Education South Africa v Minister of Education (CCT4/00) [2000] ZACC 11; 2000 (4) SA 757; 2000 (10) BCLR 1051 at 19, 23–26.
5. ^ Christian Lawyers Association v National Minister of Health and Another 2005 (1) SA 509 (T), 518, 2004 (10) BCLR 1086 (T).
6. ^ Bernstein and Others v Bester NO and Others (CCT23/95) [1996] ZACC 2; 1996 (4) BCLR 449; 1996 (2) SA 751 at 67, 75.
7. ^ Plessis, GA du; Nel, W. N. (11 October 2021). "The dimensional elements of the right to freedom of religion or belief in the South African Constitution". Journal for Juridical Science. 46 (1): 25–56. doi:10.18820/24150517/JJS46.i1.2. ISSN 2415-0517.
8. ^ Rautenbach, C.; Janse van Rensburg, F.; Pienaar, G. J. (15 June 2009). "Culture (and religion) in constitutional adjudication". Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad. 6 (1). doi:10.4314/pelj.v6i1.43474. ISSN 1727-3781.
9. ^ Islamic Unity Convention v Independent Broadcasting Authority and Others (CCT36/01) [2002] ZACC 3; 2002 (4) SA 294; 2002 (5) BCLR 433 (CC).
10. ^ De Reuck v Director of Public Prosecutions (Witwatersrand Local Division) and Others (CCT5/03) [2003] ZACC 19; 2004 (1) SA 406 (CC); 2003 (12) BCLR 1333 (CC) at 59.
11. ^ Kruger, Petronell; Mafuyeka, Mikateko; Karim, Safura Abdool (2022). "The Right to Free Commercial Speech in South Africa and its Tension with Public Health Interventions". The Journal of Law, Medicine & Ethics. 50 (2): 317–321. doi:10.1017/jme.2022.58. ISSN 1748-720X. PMID 35894565.
12. ^ Winks, Ben (2023). "Hate Hurts: Qwelane and the Lingering Obscurity in South Africa's Hate Speech Law". Constitutional Court Review. 13 (1): 67–123. doi:10.2989/CCR.2023.0005. ISSN 2073-6215.
13. ^ Schneider, Daniel (2004). "The Constitutional Right to Housing in South Africa: The Government of the Republic of South Africa v. Irene Grootboom". International Journal of Civil Society Law. 2: 45.
14. ^ Beukes, Soraya (2020). "Are the courts nuanced enough in protecting the Right to Housing against sales in execution?". ESR Review: Economic and Social Rights in South Africa. 21 (2).
15. ^ Williams, Lucy A. (2009). "The Justiciability of Water Rights: Mazibuko v. City of Johannesburg". Forum for Development Studies. 36 (1): 5–48. doi:10.1080/08039410.2009.9666424. ISSN 0803-9410.

* ^ Couzens, Meda (2019). "The best interest of the child and the Constitutional Court". Constitutional Court Review. 9 (1): 363–386. doi:10.2989/CCR.2019.0014. ISSN 2073-6215.
* ^ Binford, Warren (2016). "The Constitutionalization of Children's Rights in South Africa". New York Law School Law Review. 60: 333.
* ^ a b Arendse, L (12 January 2012). "The Obligation to Provide Free Basic Education in South Africa: An International Law Perspective". Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad. 14 (6). doi:10.4314/pelj.v14i6.4. ISSN 1727-3781.
* ^ Governing Body of the Juma Musjid Primary School & Others v Essay N.O. and Others (CCT 29/10) [2011] ZACC 13; 2011 (8) BCLR 761 (CC).
* ^ Skelton, Ann (2013). "The role of the courts in ensuring the right to a basic education in a democratic South Africa: a critical evaluation of recent education case law". De Jure Law Journal. 46 (1): 01–23. ISSN 2225-7160.
* ^ Minister of Basic Education v Basic Education for All (20793/2014) [2015] ZASCA 198; [2016] 1 All SA 369 (SCA); 2016 (4) SA 63 (SCA).
* ^ Head of Department: Mpumalanga Department of Education and Another v Hoërskool Ermelo and Another (CCT40/09) [2009] ZACC 32; 2010 (2) SA 415 (CC); 2010 (3) BCLR 177 (CC).
* ^ AB and Another v Pridwin Preparatory School and Others (CCT294/18) [2020] ZACC 12; 2020 (9) BCLR 1029 (CC); 2020 (5) SA 327 (CC).
* ^ Venter, Francois. "The protection of cultural, linguistic and religious rights: the framework provided by the Constitution of the Republic of South Africa, 1996". SA Public Law. 13 (2): 438–459.
* ^ a b Certification of the Constitution of the Republic of South Africa, 1996 (CCT 23/96) [1996] ZACC 26; 1996 (4) SA 744 (CC) at 83, 213.
* ^ Prince v President of the Law Society of the Cape of Good Hope (CCT36/00) [2002] ZACC 1; 2002 (2) SA 794; 2002 (3) BCLR 231 at 39.
* ^ Peled, Roy; Rabin, Yoram (2011). "The Constitutional Right to Information". Columbia Human Rights Law Review. 42: 357.
* ^ Porat, Iddo (2021). "Buying Democracy: The Regulation of Private Funding of Political Parties and the Press After My Vote Counts". Constitutional Court Review. 11 (1): 503–531. doi:10.2989/CCR.2021.0018. ISSN 2073-6215.
* ^ Rautenbach, Malherbe. "Constitutional Law, 4th Edition," 2004. ISBN 978-0-409-05053-0
* ^ Brice Dickson, "Human Rights in the 21st Century," Amnesty International Lecture, Queen's University, Belfast, 11 November 1999.

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