Human Rights & Constitutional Law

Apart from the Constitution, there are also various legislation put into place that can protect human rights. For example, the Protection of Personal Information Act 4 of 2013 will protect the right to privacy when it comes into operation, by restricting how a person’s private information may be accessed and used.

• Although undocumented children in South Africa are protected by the Constitution, they are unfortunately faced with many challenges. Undocumented children can be described as children who are abandoned or not born from South African citizen parents, and who are faced that their birth not begin registered.
• Section 28 of the Constitution is very clear that the best interests of a child are of utmost important in any matter concerning a child. Section 29 of the Constitutions further provides that everyone has the right to a basic education (which includes children).
• It is from these human rights where two of the most concerning infringements of undocumented children's human rights arise:
• The right to a name and nationality from birth (section 28).
• The right to a basic education and not to be refused reasonable access to education.
• A High Court ruling has declared certain clauses of the Admission Policy for Ordinary Public Schools of 1998 unconstitutional. These clauses infringed on children's right to a basic education as it did not allow children to be admitted into a school if they do not have birth certificates or because of them begin non-citizens. This judgment opened the doors to ensure greater protection of undocumented children's human rights.

An interested person can bring an application to a court on behalf of a person whose human rights are being infringed. Section 38 of the Constitution allows any person to act on behalf of someone else who cannot do so themselves. Further, the interested person could even act on behalf of a group or community of persons who are affected.

• Although section 9 of the Constitution guarantees equality before the law and freedom from discrimination, this right to be treated equally does not mean that everyone should be treated exactly the same. South African courts have held that this right requires people in the same position to be treated in the same manner.
• For example, tax law that stipulates the various tax brackets apply depending on a person's income. There is no “one size fits all” approach providing that everyone must pay the same amount of tax regardless of their income. This differentiation can be seen as fair.

• The right to electricity is not in itself a human right contained in the Constitution. However, a lack of access to electricity can infringe on a person’s other human rights. For example, loadshedding may infringe on a person’s rights to trade, access to information, health care and social security.
• There are numerous arguments on this topic, however, municipalities must provide the public with basic municipal services within its available resources and in a sustainable manner. In Joseph v City of Johannesburg 2010 4 SA 55 (CC), the Constitutional Court confirmed that South Africans are entitled to electricity as a basic municipal right.
• On the flip side of the coin, legislation provides that the interests and needs of present and future electricity customers are safeguarded and met (in consideration of the efficiency and long-term sustainability of the electricity supply industry).
• In light of the above, there is a fine balance that must be maintained between providing the public with electricity as a basic municipal right (together with the protection of human rights) and the long-term sustainability of the electricity supply industry.
• Even though it might be possible that loadshedding can impact on a person’s human rights, it is also important to remember that the Constitution allows for human rights to be infringed to a certain extend. Section 36 of the Constitution provides for the limitation of human rights if that limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. The limitation of human rights should also be subject to any less restrictive manners that are available (for example, that the electricity outages are limited to certain time periods and as per a schedule).
• Although there are arguments on either side in respect of whether or not loadshedding infringes on a person’s human rights, it must still be formally tested under the law.

• The Constitution grants this right to “everyone”, however, this is not an absolute right and is governed by legislation, such as the Social Assistance Act 13 of 2004.
• This means that the legislation will have clear guidelines as to when a person will qualify for social assistance. As a general rule, those who are in need are more likely to claim and benefit from the social security protection provided in the Constitution.
• It should also be taken into account that the Constitution only provides access to social security and not a right to automatically receive social security.

The Constitution of the Republic of South Africa (commonly referred to as the Constitution) is the highest law in South Africa. This means that any legislation and decisions of courts must be in accordance with what is stated in the Constitution. The Bill of Rights is a chapter within the Constitution where the human rights are set out, such as the right to life, privacy and fair labour practices. Seeing as the Bill of Rights is a chapter within the Constitution, it is also the highest law in South Africa.

Every person has the right to approach a court to resolve any dispute s/he may have with another person or entity (such as a company) through the application of law. This is known as the right to access to courts. This right also includes to have the dispute resolved in a fair public hearing in court or other tribunal or forum, such as an Ombudsman.

A person who feels that his/her human rights have been violated can do the following:
-  Contact the South African Human Rights Commission (“SAHRC”) to lodge a complaint. The SAHRC will resolve the complaint through negotiation, mediation or arbitration.
- Approach a court to enforce his/her right to claim compensation if the limitation caused damages. It is recommended to obtain the assistance of an attorney when approaching the court.
- Lodge a complaint with another institution, such as the Public Protector or a non-governmental organisation.

It may happen that two persons try to enforce their human rights against each other, for example, where one person says something to another who takes offence to what is said. In this example the person who made the statement might want to enforce his/her right to freedom of expression (including freedom of speech). The other person who was offended might want to enforce his/her right to dignity. In a situation like this, the courts will have to make a decision on which right will prevail. The courts will have to weigh the right to freedom of expression of the one person to say what s/he wants, against the other person’s right to not have their dignity impaired. Various factors will be taken into account in deciding which right to limit, such as what has been said and to whom it was said, the reason for the statement and whether the statement was made public or not, and so on.

• Discrimination refers to where people or classes of people are treated differently in such a way that it is against the Constitutional right of equality.
• Section 9 of the Constitution provides everyone with the right to equality and not to be unfairly discriminated against based on their race, gender, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

• Section 12 of the Constitution grants everyone the right to freedom and security of the person. It further states that everyone has the right to bodily and physical integrity, which includes the right to make decisions concerning reproduction.
• The right to make decisions concerning reproduction is afforded to persons of all genders, but has the following unique consequences that may only be applicable to women:
• A woman is free to decide whether she wants to have children or not and should not be discriminated against based on her decision;
• A pregnant woman can voluntarily terminate her pregnancy for any reason up to the twelfth week of pregnancy, in terms of the Choice on Termination of Pregnancy Act; and
• A pregnant woman is entitled to maternity leave and employers are not permitted to unreasonably refuse to grant such leave.

The National Health Insurance Bill has already been approved by the portfolio committee for health, parliament and the National Council of Provinces. However, it still has to be signed off by President Cyril Ramaphosa before it can come into effect and be made a law of South Africa.

The National Health Insurance Bill aims to implement the National Health Insurance (“NHI”). The NHI will be a fund that may be formed to provide all South Africans affordable healthcare across the board. The NHI will provide funding for both private and public healthcare providers with the objective to provide universal access to quality health care for all South Africans as provided in the Constitution. Section 27 of the Constitution provides for healthcare as an essential human right and provides that everyone has the right to access to health care services.

Section 19 of the Constitution deals with political rights and provides that every citizen has a right to regular elections that are free and fair. The Constitution also provides for the human right of every adult citizen to vote in elections (provided that they are registered to vote). Every South African citizen is also entitled by the Constitution to make political choices, which includes to form a political party, to participate in the activities of a political party and to campaign for a political party. However, it should be kept in mind that exercising these rights must be done in accordance with the measures and procedures put in place from time to time.

• The right to have access to social security is recognised as a human right under section 27 of the Constitution and includes appropriate social assistance to persons who are unable to support themselves and their dependants.
• Social security aims to ensure that all people have adequate economic and social protection during certain events, such as unemployment.
• Examples of appropriate social assistance include old-age grants, child support grants and disability grants.
• During the national state of disaster, the Temporary Employee/Employer Relief Scheme (“TERS”) can be seen as a form of social assistance. TERS is a special benefit created to provide emergency relief to employers so that they may continue to pay their employees during a temporary lay-off.