The South African Bill of Rights: a briefing

Professor Kate O’Regan, inaugural Director of the Bonavero Institute of Human Rights and a former judge of the South African Constitutional Court

Introduction

Following the publication of the document New Decade, New Approach, The Northern Ireland Assembly established an Ad Hoc Committee on a Bill of Rights to consider the creation of a Bill of Rights for Northern Ireland faithful to the stated intention of the 1998 Belfast Agreement, in that:

“It contains rights supplementary to those contained in the European Convention on Human Rights, which are currently applicable, and “that reflect the particular circumstances of Northern Ireland”; as well as reflecting the principles of mutual respect for the identity and ethos of both communities and parity of esteem.”

The Belfast Agreement noted that the Northern Ireland Human Rights Commission would be invited to consult and advise on a Bill of Rights for Northern Ireland.

Specifically, it would consider:

“…the scope for defining, in Westminster legislation, rights supplementary to those in the European Convention on Human Rights, to reflect the particular circumstances of Northern Ireland, drawing as appropriate on international instruments and experience.”

I have been invited by the Committee to provide it with a briefing on the Bill of Rights in the South African Constitution. Conscious that the Committee may well be burdened by extensive documentation, I have prepared this brief note in four parts:

(a) the history of the South African Bill of Rights;

(b) the key structural provisions of the Bill of Rights;

(c) the rights entrenched in the South African Bill of Rights which could be said to be supplementary to the rights contained in the European Convention of Human Rights; and

(d) a brief description of the adjudication of economic and social rights under the South African Bill of Rights.

I would be happy to provide further information should the Committee request.

 

A. Brief History of South Africa

South Africa’s colonial history stretches back to 1652 when the Dutch East India Company established a refreshment station in Table Bay to provide ships travelling to India via the Cape of Good Hope with fresh fruit and vegetables on the long journey. Expansion to the north and east took place relatively slowly over the following 150 years, but in the early nineteenth century at the end of the Napoleonic Wars, the Cape Colony became part of the British Empire. Expansion took place much more rapidly during the nineteenth century. The colony of Natal was proclaimed in the 1840s and two Boer republics (the South African Republic and the Orange Free State) declared in the following decades by descendants of the early Dutch settlers (Afrikaners).

Colonial settlers continued to arrive in significant numbers throughout the nineteenth century and settled in both the Cape Colony and Natal, leading to sharp conflicts over land with local African peoples. The nineteenth century was a bloody century of war across south eastern Africa as the colonial forces often reinforced by settlers slowly vanquished the local peoples. During the first half of the nineteenth century, eight frontier wars were fought by the British colonial forces and settlers and the amaXhosa peoples in the Eastern Cape and British colonial forces went to war with the Zulu nation in Natal in 1879. By the end of the century, all but small pockets of African resistance had been quelled in the British colonies of the Cape and Natal but these battles were followed, in the wake of the discovery of gold on the Witwatersrand in 1886, by a major war between the British Empire and the Boer Republics which lasted from 1899 – 1902. Following the defeat of the Boers, the Boer Republics became British colonies and in 1910 the four colonies were amalgamated to form the Union of South Africa.

Racially discriminatory policies were applied in South Africa from the earliest days of colonial settlement and from the late seventeenth century slaves were brought to the Cape by Dutch traders. During the twentieth century, racial discrimination was firmly embedded both in private practices and in the laws applicable in South Africa. Following the election of the National Party as government in 1948, a policy of apartheid (separation) was developed and implemented. The legacy of endemic racial discrimination left by both colonial policies and apartheid, resulted in deep patterns of racial inequality in South Africa.

After a long political struggle waged both within and beyond South Africa’s borders to end apartheid, President FW De Klerk announced the unbanning of the liberation movements (notably the African National Congress and Pan Africanist Congress on 2 February 1990). Four years later after a series of difficult extra-parliamentary negotiations, chiefly between the National Party government and the liberation movements but including other political parties as well, an agreement was reached in late 1993 which led to the enactment of an interim Constitution by the apartheid Parliament in 1993, paving the way for elections to be held in April 1994. The interim Constitution contained a Bill of Rights which came into force on 27 April 1994 with the rest of the Constitution. In this briefing, however, I will concentrate on the Bill of Rights as contained in the Constitution of the Republic of South Africa, 1996,

 

B. Key structural aspects of the South African Bill of Rights

The South African Bill of Rights is contained in chapter 2 of the South African Constitution, 1996. Like the rest of the Constitution, it was drafted by the Constitutional Assembly in the two years following the first democratic elections held between 27 – 29 April 1994. Key structural elements of the Bill of Rights are the following:

1. Range of rights included: The Bill of Rights contains an extensive array of rights in 27 substantive clauses covering civil and political rights, economic, social and cultural rights, including a substantial equality clause, clauses regulating property rights and individual and collective labour rights, as well as environmental rights and a right to administrative justice.

2. Limitations clause: Like the Canadian Charter of Rights and Freedoms, and different from the European Convention of Human Rights, the South African Bill of Rights contains a general limitations clause (s 36 of the Constitution) which means that no right is absolute but any limitation of rights must be justified under the limitation clause.  This aspect of the structure of the Bill of Rights is important in that it unavoidably influences the conception and interpretation of rights in the Bill of Rights.  The limitations clause requires that the limitation of the right be contained in a law of general application and be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. Courts have adopted a proportionality test to determine the justifiability of limitations, which while similar to the test developed by the ECHR and the Canadian Charter of Rights and Freedoms is not identical to it.

3. Internal limitations, or definitional exclusions: Some of the rights have internal limitations which generally function as definitional to the rights. So, for example, section 16 entrenches the right to freedom of expression, but section 16(2) expressly stipulates that the right 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.

4. Interpretation of Rights: There are several guides to the interpretation of the rights. First, interpretation of the rights in the Bill of Rights must promote the values that underlie an open and democratic society, based on human dignity, equality and freedom (section 39(1)). Secondly, when interpreting rights courts must consider international law and may take the comparative law of other open and democratic societies into account (section 39(2) and (3)). The Constitutional Court has taken a generous approach to the definition of international law (to include not only customary international law, jus cogens and treaties and conventions ratified by South Africa, but also treaties and conventions not ratified by South Africa and soft law instruments including decisions of treaty bodies, reports and declarations).

However, international law is only one of the considerations taken into account in interpreting the Bill of Rights. The courts also regularly consider and discuss the jurisprudence of other democratic countries in interpreting the Bill of Rights and in considering questions of justification under the limitations clause. Thirdly, the fundamental values provision of the Constitution (section 1) and the Preamble have frequently been drawn on in the interpretation of rights.

5. Who bears obligations under the Bill of Rights? (a) The state and those performing state functions: The state (s 8(1)) includes all three arms (the legislature, executive and judiciary) as well as all three spheres of government (national, provincial and local) and also includes “organs of state” defined in the Constitution to include those institutions or functionaries exercising powers or performing functions under the Constitution or in terms of legislation (s 237). (b) Private actors including legal persons bear obligations under the Bill of Rights to the extent that the right is applicable to them, taking into account the nature of the right and any duty imposed by it (s 8(2)). This is one of the more enigmatic provisions of the Constitution. In practice, much of the application of the rights in the Bill of Rights occurs through the indirect influence of the Bill of Rights on the common law in terms of s 39(2) which provides that when a court is developing the common law or customary law, it must “promote the spirit, purport and objects of the Bill of Rights”.

6. The nature of the duties borne by those bound by the Bill of Rights: The state must respect, protect, promote and fulfil the rights in the Bill of Rights (s 7). This clause which draws on the language of international human rights law has been held to mean that in addition to obligations not to restrict or impair the rights in the Bill of Rights (a negative duty), the state also bears positive duties to protect, promote and fulfil the rights in the Bill of Rights. The contents of these positive duties vary from right to right. The extent that private actors bear positive duties under the Bill of Rights remains under-explored, although there are signs in the jurisprudence that private actors will bear some positive obligations under the Bill of Rights.

7. Standing to sue: The Bill of Rights makes clear that a wide range of persons and institutions have standing to approach courts seeking appropriate relief on the basis of threatened or actual infringement of the Bill of Rights (s 38) including a person acting on behalf of another person who cannot act in their own name, anyone acting as a member of a group or class of persons, anyone acting in the public interest and associations acting in the interests of their members.

8. Relief: The Constitution requires that any legislation or conduct that is found to be inconsistent with the Bill of Rights (or any provision of the Constitution) must be declared invalid (s 172(1) and s 2). It provides that declarations of invalidity may be suspended for a period of time, conditionally or unconditionally, in order to permit the relevant authority to correct the unconstitutionality. Only the Constitutional Court may render an Act of Parliament or a provincial legislature invalid: any other court that finds national or provincial legislation to be inconsistent with the Constitution may make an order of invalidity, but that order will not take effect unless it is confirmed by the Constitutional Court (s 172(2)). The Constitutional Court has also used the remedial techniques of severance (providing that certain words or provisions in legislation will no longer have effect), reading down (explicitly stating that a legislative provision will have a narrower application than might otherwise be the case) and reading in (adding words to a legislative provision to remedy unconstitutionality). In addition to an order of constitutional validity, the Constitutional Court may make any order that is just and equitable to provide relief (s 172(2)(b)). The remedial powers provisions of the South African Constitution have proved workable and flexible in application.

 

C. Rights entrenched in the South African Bill of Rights that are not explicitly entrenched in the European Convention on Human Rights

Given the mandate of the ad hoc Committee to consider rights supplementary to those contained in the European Convention on Human Rights, in this section I identify the rights entrenched in the South African Bill of Rights that could be said to be supplementary to those in the European Convention. In identifying these rights, I have taken into account the extension of rights under Protocols 1, 4, 6, 7, 12 and 13 to the Convention. Given that the rights in the South African Bill of Rights are often formulated in slightly different terms to the rights in the European Convention, the task of identifying rights that are supplementary to the Convention is not as clear-cut as one might have expected. In some cases, the difficulty arises because the text of the European Convention is quite different from the South African Bill of Rights. For example, matters protected by article 8 of the European Convention which entrenches the right to private and family life, are protected in South Africa in different ways by a range of differently formulated rights including the right to privacy (s 14), the right to have dignity protected (s 10), the right to have access to adequate housing (s 26). In other cases, it is because the manner in which the European Court of Human Rights has interpreted the rights has meant that matters are now protected that might not appear self-evident from the text.

With these difficulties in mind, I have identified the following provisions of the South African Bill of Rights which might in some sense be said to be supplementary to the rights protected in the European Convention.

1. Equality (s 9): this clause stipulates that everyone is equal before the law and has the right to equal protection of and benefit of the law. It also provides that “to promote equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken” (what might be referred to as an affirmative action provision). It also contains an anti-discrimination provision with an open-ended list of prohibited grounds: race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. The equality clause also states that no person may discriminate unfairly against anyone on these enumerated grounds and provides that national legislation must be enacted to prevent or prohibit unfair legislation. That legislation was enacted in 2000 (the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000). Finally, the clause contains a provision which states that discrimination on one of the listed grounds is unfair unless it is established that it is fair.  Although both article 14 and Protocol 12 of the European Convention contain prohibitions on discrimination, the former far narrower in its reach, neither article 14 nor Protocol 12 are is in broad terms as section 9 of the South African Constitution.

2. Human Dignity (s 10): Human dignity is one of the most important normative principles in the South African Constitution. Not only is it asserted as a founding value of the Constitution but human dignity is entrenched as a right in the Bill of Rights and serves as a touchstone for determining whether a limitation of rights is justifiable. It has been used by the courts regularly in interpreting the Constitution. It is worth noting here that the courts often assert its connections to the African ethic of ubuntu (a person is a person through other people), although ubuntu is not explicitly mentioned in the Constitution.

3. Freedom of trade, occupation and profession (s 22): This provision protects the right to choose a trade, occupation of profession and provides that the practice of trades, occupations and professions may be regulated by law.

4. Labour rights (s 23): This clause protects both individual employment rights and collective rights. It provides that everyone has the right to fair labour practices, that workers have the right to form and join trade unions, to participate in their activities and programmes, and to strike. It also provides that employers have the right to form and join employers’ associations and to participate in their activities and programmes. It also provides that trade unions, employer organisations and employers have the right to engage in collective bargaining and that national legislation must recognise union security arrangements contained in collective agreements.

5. Environment (s 24): This clause provides that everyone has the right to “an environment that is not harmful to their health or wellbeing” and “to have the environment protected for the benefit of present and future generations through reasonable legislative and others measure 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”.

6. Housing (s 26): This clause protects the right of everyone to have access to adequate housing. It provides that the state must take reasonable legislative and other measures within its available resources to achieve the progressive realisation of this right. It also provides that no one may be evicted from their home or have their home demolished without an order of court made after consideration of all the relevant circumstances and that no legislation may permit arbitrary evictions. I shall return to the adjudication of economic, social and cultural rights below.

7. Healthcare, Food, Water and Social Security (s 27): this clause protects the right of everyone to have access to health care services, including reproductive healthcare, sufficient food and water and social security, including appropriate social assistance. As in the case of the right of access to adequate housing, the state must take reasonable legislative and other measures within its available resources to achieve the progressive realisation of these rights. The clause also provides that no one may be refused emergency medical treatment.

8. Children’s rights (s 28): This right draws directly on the UN Convention on the Rights of the Child to entrench the rights of children to, amongst other things, a name and nationality from birth, family or parental care, basic nutrition, shelter, health care services and social services, protection from maltreatment, neglect abuse, degradation and exploitative labour practices and not to be detained except as a measure of last resort. It also provides that a child’s best interests are of paramount importance in every matter concerning the child.

9. Language and culture (s 30): This clause protects the right of everyone to use the language and participate in the cultural life of their choice but asserts also that no one exercising these rights may do so in a manner inconsistent with any provision in the Bill of Rights.

10. Cultural, religious and linguistic communities (s 31): This clause provides that people who belong to a cultural, religious or linguistic community may not be denied their right together with other members of the community to enjoy their culture, practice their religion and use their language, and to form, join and maintain cultural, religious and linguistic associations. Again, these rights may not be exercised in a manner inconsistent with the Bill of Rights.

11. Access to information (s 32): This clause provides that everyone has the right of access to any information held by the state as well as any information held by a private person that is required for the exercise of their rights. The clause also requires (as in the case of the equality clause and the administrative justice clause, discussed below) that national legislation be enacted to give effect to the right. That legislation has been enacted as the Promotion of Access to Information Act, 2000.

12. Just administrative action (s 33):  This clause provides that everyone has the right to administrative action that is lawful, reasonable and procedurally fair. It also provides that everyone whose rights have been adversely affected by administrative action have the right to be given written reasons. The clause also requires (as in the case of the equality clause and the access to information clause, discussed above) that national legislation be enacted to give effect to the right. That legislation has been enacted as the Promotion of Administrative Justice Act, 2000.

 

D. The approach to adjudicating economic and social rights under the South African Constitution

This section contains a brief account of the approach to the adjudication of economic and social rights under the Bill of Rights. In particular, this section will consider the right of access to adequate housing (s 26) as well as the rights the right of everyone to have access to health care services, including reproductive healthcare, sufficient food and water and social security, including appropriate social assistance (s 27). One of the reasons for discussing these rights together, is they are formulated in similar terms. In each case, the right is declared and is then followed by a provision stating that the state must take reasonable legislative and other measures within available resources to achieve the progressive realisation of the rights. In a series of cases, the Constitutional Court has held that this provision delineates the positive obligation upon the state and that therefore where a person comes to court to assert that they do not, for example, have access to adequate housing, the court must consider whether the state has taken reasonable legislative and other measures within its available resources to achieve the progressive realisation of the rights. The focus of the case is therefore on what the state has (or has not) done to achieve the realisation of the right.

During my presentation to the Committee, I will illustrate this approach by reference to two early decisions of the Constitutional Court concerning the right of access to health care services: Soobramoney v Minister of Health (Kwazulu-Natal) [1997] ZACC 17; (27 November 1997) and Minister of Health and Others v Treatment Action Campaign and Others (No 2) [2002] ZACC 15 (5 July 2002).

I hope this briefing is of some assistance to the Ad Hoc Committee and should be happy to provide further information if requested.

 

Kate O’Regan

Judge of the Constitutional Court of South Africa (1994 – 2009)

Professor of Human Rights Law, University of Oxford

Director, Bonavero Institute of Human Rights

Cape Town 23 June 2020

Find MLAs

Find your MLAs

Locate MLAs

Search

News and Media Centre

Visit the News and Media Centre

Read press releases, watch live and archived video

Find out more

Follow the Assembly

Follow the Assembly on our social media channels

Keep up-to-date with the Assembly

Find out more

Useful Contacts

Contact us

Contacts for different parts of the Assembly

Contact Us