South African Approach

1. South African Approach Comparative protection of rights approach with another country

2. South Africa- protection of rights The Constitution of the Republic of South Africa Act came into effect on the 4th of Feb 1997 as part of the reconstruction of South Africa’s political system to make it democratic. The Bill of Rights is contained in chapter two of the Constitution. South Africa adopted its Constitution in 1996. Prior to the introduction of the Constitution, South Africa had experienced more than 45 years of rule by a racist, brutal, apartheid-based regime. The new Constitution established South Africa as a democratic, multicultural country.

3. South Africa The Constitution states: 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. The rights in the Bill of Rights are subject to the limitations contained or referred to in section 36, or elsewhere in the Bill.’

4. Express Rights Unlike Australia, the South African Bill of Rights contains an extensive list of protected human rights noted under subheadings such as; equality, human dignity, life and freedom. The rights under the South African Bill of Rights are entrenched and may only be altered through constitutional amendment. The Bill of Rights applies to ALL laws, and binds the legislature, the executive and judiciary bodies.

5. Some Examples of the South African Bill of Rights Chapter 2 Bill of Rights S9= Equality s9(1) Everyone is equal before the law and has the right to equal protection and benefit of the law. s11- Life- Everyone has the right to life S12 Freedom and security of the person S12(3) not to be treated or punished in a cruel, inhuman or degrading way. Read from page 162-163 and write another 4 more sections you believe to be important to the South African Bill of Rights.

6. Enforcement of Rights The rights under the South African Bill of Rights are fully enforceable. Legislation that violates these expressed rights can be declared unconstitutional and be declared as being invalid- which means it can no effect. In South Africa, any individual or group can bring an action alleging that a right under the Bill of Rights has been infringed (interpretive approach). This differs from Australia because in Australia the person or group bringing the action must be directly affected by the infringement of rights (complaints-based approach).

7. Statutory Interpretation and Common Law When interpreting any legislation and developing common law, every court and tribunal must promote the Bill of Rights and interpret legislation in accordance to the Bill of Rights. E.g. Carmichele v. Minister of Safety and Security (2001), a woman was raped by a man who was then given bail. The lady sued the state for negligence because he had been released unconditionally despite his past sexual violence history. The court found that the Bill of Rights was not followed in this case in terms of safety and protection. The lady was then successful in her negligence case.

8. Remedies where rights have been infringed Legislation that infringes the Bill of Rights can be declared invalid by the courts. In addition to this, the courts can award damages where rights have been infringed.

9. Economic, Cultural and Social Rights What distinguishes the South African Bill of Rights from the human rights protection provided by many other countries it that it protects significant social, economic and cultural rights. These include the right to health care, food, water, social security, housing, the environment, education, language and culture. Case study- Minister of Health v. Treatment Action Campaign (2002). The South African government restricted distribution of Nevirapine, an anti-retroviral drug that was effective in preventing transmission of HIV/AIDS from mother to child during childbirth. The South African government agency, the Medicine Control Council, had found the drug to be safe and effective. The Constitutional Court found that this restriction imposed by the South African Government was a violation of s27 of the Bill of Rights, which guarantees a right to health care. The court ordered removal of the restriction because the policy infringed protected rights.

10. Limitations of Rights The South African Bill of Right contains a general limitation which provides that rights may be limited where it is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. In deciding whether the limitation is reasonable, the courts will take into consideration: ● the nature of the right ● the importance of the purpose of the limitation ● the nature and extent of the limitation ● the relation between the limitation and its purpose ● whether there are less restrictive means to achieve the purpose. Second, the Bill of Rights recognises that South Africa faces difficulties in achieving these rights in the transition from apartheid to democracy. Some social and economic rights are subject to the following limitation: ‘the state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right.’ Other rights cannot be restricted or limited such as, equality, human dignity, life, freedom and security of the person, rights against slavery, rights of children and rights during arrest and detention.

11. Changing the Constitution The Bill of Rights can only be amended by a two-thirds majority vote in the National Assembly and approval from at least six of the nine provincial (state) parliaments. They do not hold a referendum.

12. Strengths and Weaknesses of the South African Bill of Rights STRENGTHS • If provides a long list of rights for the protection of South African’s. • Rights cannot be changed without being passed by two thirds of the National Assembly members and support of 6 out of the nine provinces. • Remedies are provided by the courts if rights have been infringed. • Economic, cultural and social rights are protected. WEAKNESSES • Parliament can override some rights in a state of emergency. • It is difficult to chafe the rights contained in the Bill of Rights. • The people are not asked to vote on a referendum for the rights in the Bill of Rights to be changed.

13. Question Time 6 Carefully read the quotation below and answer the questions that follow: Australia is one of the few western-style democracies without a Bill of Rights. Our Constitution gives only a narrow expression to the rights of individual citizens. We have relied upon the High Court to give meanings to our Constitution that are consistent with the contemporary rights culture. Given our history of constitutional change, it seems unlikely that Australia will gain an entrenched Bill of Rights in the foreseeable future. We must consider the introduction of a statutory Bill of Rights. a Describe how democratic and human rights are recognised in the Commonwealth Constitution. In your response you should refer to specific examples, including a comment on the significance of the Roach Case in protecting the right to vote. [6 marks] b Explain how the difficulty of passing a referendum may impact on the prospects of a Constitutional Bill of Rights being introduced, and why a statutory bill is more likely in Australia. [4 marks] c Critically evaluate how effectively rights are protected by the Commonwealth Constitution. [8 marks]

14. Question Time Outline the express rights contained in the Commonwealth Constitution. What is the implied right? How did it come about? Describe the implied constitutional right to freedom of political communication. Describe how the Constitution protects the right to vote. Describe the approach adopted for the constitutional protection of human and democratic rights in one of the following countries: entrenched Bill of Rights—Canada, United States of America, South Africa statutory Bill of Rights—New Zealand.