3. International Human Rights - Terminology
1.1 A brief outline of the meaning of human rights
Human beings are born equal in dignity and rights. These are moral claims which are
inalienable and inherent in all individuals by virtue of their humanity alone,
irrespective of race, colour, creed, and place of birth, sex, cultural difference or any
other consideration. These claims are pronounced and formulated in what is today
known as human rights. Human rights are sometimes referred to as fundamental
rights, basic rights, inherent rights, natural rights and birth rights.
1.2 The definition of human rights, human rights law, international human rights law,
and public international law
Human rights are the rights that people enjoy as a matter of political morality [1] and
whose existence is not dependent on any legal recognition. [2] Human rights are
“inborn and inherent in all human beings by virtue of their birth as human beings and
by the nature of their humanity”. [3] Human beings bear these rights wherever they
go, anywhere they are, [4] and irrespective of nationality. [5] The idea of human
rights can be summarised as follows:
…rights are claims by right-holders against addressees, [6] who are usually, though
not only states, that are held by all persons, are high priority or urgent norms, are
numerous and specific claims (for example the right to fair trial, social security)
instead of few and highly abstract claims (for example the right to dignity and
equality), are normative claims whose truth is not dependent on legal recognition,
and are meant to be minimum standards instead of a complete statement of what is
just (for example to say our human rights are satisfied is not to say that some
situation is just, any more than that a minimum wage is a just wage). [7]
Human rights must be understood as rights which belong to the individual as a
consequence of being a human being and for no other reason. [8]
1.2.1 Definition of Human rights law
Human rights law consists of rules and principles that relate to the protection of
human rights at domestic level.
1.2.2 Definition of international human rights law
International human rights law is a branch of public law, which consists of rules and
principles that protect and promote individual and collective human rights at an
international, universal, regional and sub-regional levels. Public law is defined as set
of rules and principles that regulate the relations between states, between states and
international organisation. Generally, these rules and principles deal with the
protection and promotion of human rights, and constitute international human rights
law. It is important to note that the international human rights law is related to other
branches of law such as the international humanitarian law and the international
refugee law.
1.2.3 Public International Law
Public international law is composed of the laws, rules, and principles of general
application that deal with the conduct of nation states and international organisations
among themselves as well as the relationships between nation states and
international organisations with persons, whether natural or juridical. Public
International Law is sometimes called the "law of nations" or just simply International
Law. It should not be confused with Private International Law, which is primarily
concerned with the resolution of conflict of national laws, determining the law of
which country is applicable to specific situations.
Article 38 of the Statute of the International Court of Justice (ICJ) lists the traditional
sources of Public International Law, the actual legal materials that the ICJ has to
apply to international disputes. According to Article 38, these sources are of two
types: the primary sources that are represented by the international conventions,
international custom and general principles of law; and the subsidiary sources that
are represented by the decisions of courts and the opinions of legal scholars.
Moreover, this Article 38 lists equity as an alternative source of Public International
Law applied by the Court if the parties agree thereto. However, in addition to these
traditional sources, there are contemporary sources, such as the acts of the
international organisations. Let’s now have a look at the three main sources of Public
International Law.
Three main sources of Public International Law
a. Treaties
The term “treaty” is used as a generic term embracing all kinds of international
agreements which are known by a variety of different names such as, conventions,
pacts, general acts, charters, statutes, declarations, covenants, protocols, as well as,
the name agreements itself. A treaty may be defined as an international agreement
concluded between States in written form and governed by International Law.
The law-making treaties constitute a primary source of International Law. Since the
middle of the nineteenth century, there has been an astonishing development of lawmaking treaties. The rapid expansion of this kind of treaties has been due to the
inadequacy of customs in meeting the urgent demands arose from the changes
which have been transforming the whole structure of international life. Law-making
treaties have been concluded to regulate almost every aspect concerning the
international community. Examples of important treaties are: The Charter of the
United Nations, the four Geneva Conventions of 1949, the Vienna Convention on
Diplomatic Relations of 1961, the International Covenant on Civil and Political Rights
of 1966, the Convention on the Law of the Sea of 1982, and the Outer Space Treaty
of 1967.
In contrast with the process of creating law through custom, treaties are a more
modern, more deliberate and speedy method. They are of growing importance in
International Law. Their role in the formation of new rules of International Law
increases day after day. Today, the law-making treaties are considered the most
important primary source of Public International Law.
b. International custom
Article 38 of the Statute of the ICJ refers to an International Custom as evidence of a
general practice accepted as law. This definition comprises of two elements: a
general practice and its acceptance as law. These two elements are necessary for
the formation of customary international law. The first element, the behavioural or
objective element, requires a recurring consistent action or lack of action by States,
which is indicated by such activities as official statements or conducts, legislative or
administrative action, court decisions and diplomatic behaviours or correspondence.
The second element (the psychological or subjective element) entails the conviction
that in similar case such a practice is required or permitted by international law. In
this sense, international customs may be defined as practices or usages which have
been observed by a large number of States over a lengthy period of time and
considered by them to be legally obligatory.
c. General principles of law
Article 38 of the Statute of the ICJ refers to “the general principles of law recognized
by civilized nations” (all nations are now considered as civilised) as a primary source
of International Law. This source is listed the third after international conventions and
international customs. The Court shall apply the general principles of law in cases
where treaties and customs provide no rules to be applied.
There is no agreement on what the term “general principles of law” means. Some
say it means general principles of international law; others say it means general
principles of national law. Actually, there is no reason why it should not mean both;
the greater expansion in the meaning of this term, the greater chance of finding rules
to fill the gaps in Treaty Law and Customary Law.
There are various opinions as to the origin of the general principles of law. Some
regard them as being originated from the Natural Law which underlies the system of
International Law and constitutes the criteria for testing the validity of the positive
rules. Others regard them as stemmed from the national legal systems (Positive
Law) and have been transplanted to the international level by recognition.
In summation, International law is a combination of treaties and customs that
regulate the conduct of states among themselves. International law has three main
sources:
Customary international law
Customary international law comes from the customs practised over a long period of
time by various states. The practice must have state backing or following. These
customs are often not written in treaties or legislation, but have become an
international standard that governments must follow.
Treaties and conventions
A treaty (or charter, convention or covenant) is a formal agreement between states
that defines and modifies their mutual duties towards their own citizens, or between
each other as states. Treaties may be either bilateral (between two parties) or
multilateral (between more than two parties). A treaty system is based on the
agreement of states signing and ratifying the treaty.
Soft law (guidelines and non-binding judgments)
Soft law refers to all sources of non-binding international law that can provide
guidance on the interpretation of international treaties. The examples of soft law are;
a. Guidelines produced by international organisations such as the WHO that
can be helpful to courts that do not have expertise in a particular field. And the
declarations, of non-binding international instruments, that can be made by any
international organisation or body of experts (e.g. UN Declaration of Human Rights,
1948).
3. International Human Rights - Terminology
3.1. Origins of human rights
Human rights have a traceable history. They have changed, are changeable and
contestable. The origins of human rights can be traced to the political philosophy of
Locke (1962), Hobbes (1979), and also from the United Nations Universal
Declaration of Human Rights,1948 which encapsulates and re-presents Lockean and
Hobbesian ideas using modern philosophical constructs such as “nation-states”,
“sovereignty” and “citizenship”.
Locke and Hobbes who first articulated human rights on the basis of equality of all
human beings within and as political theory of “civil” governance. It was Locke and
Hobbes who argued for human rights as a “contractual” agreement between
“citizens” and “states” in the establishment of a political system of government. It was
Locke and Hobbes who shifted the focus on individual rights, foundational to human
rights, and argued for the relations between forms of government (“authorities” for
Locke and Hobbes) and powers and responsibilities that follow from “contractual
agreements” between governments and citizens (“subjects” for Locke and Hobbes).
Human rights have been shaped during modernity (and indeed prior to modernity as
well) by the struggles of people throughout the world whose human rights were
grossly violated. The assertions of their rights, particularly those of people in
colonised countries throughout the world, “black” people, women and the working
class, have contributed significantly to the development of human rights as they exist
currently. Human rights, thus, cannot just be traced merely in terms of a history of
ideas. Human rights also need to be viewed as emerging out of human struggles and
tied centrally to constructions of power. In the South African context human rights
have been impacted by colonialisation and apartheid.
3. International Human Rights - Terminology
3.2. The importance of human rights
In defending the existence of human rights, King embraces freedom as a
cornerstone of meaningful choices about the lives we want to lead, of not being
subject to another person’s arbitrary control, about having the capacity to understand
political complexities and run for office, and about having the health and income
security that allows one to frame and act out a life plan. Rawls believes that a social
minimum, though less egalitarian ought to be guaranteed and legally enforceable as
a constitutional essential. [1] Another justification for defending social human rights is
found in the idea of social citizenship, civic republicanism, and deliberative
democracy. [2] This justification considers social rights as instrumental in support of
meaningful participation in political decision-making and political outcomes. [3]
Approaches to justification include grounding human rights in prudential reasons,
practical reasons, moral rights, human well-being, fundamental interests, human
needs, agency and autonomy dignity, fairness, equality, and positive freedom.
Justifications can be based on just one of these types of reasons or they can be
eclectic and appeal to several.
3. International Human Rights - Terminology
3.3. Characteristics and nature of human rights
Following are the characteristics of human rights:
a. Human rights are inalienable
Human rights are conferred on an individual due to the very nature of his existence.
They are inherent in all individuals irrespective of their caste, creed, religion, sex and
nationality. Human rights are conferred to an individual even after his death. The
different rituals in different religions bear testimony to this fact.
b. Human rights are essential and necessary
In the absence of human rights, the moral, physical, social and spiritual welfare of an
individual is impossible. Human rights are also essential as they provide suitable
conditions for material and moral upliftment of the people.
c. Human Rights are in connection with human dignity
To treat another individual with dignity irrespective of the fact that the person is a
male or female, rich or poor etc. is concerned with human dignity.
d. Human rights are irrevocable
Human rights are irrevocable, they cannot be taken away by any power or authority
because these rights originate with the social nature of man in the society of human
beings and they belong to a person simply because he is a human being. As such
human rights have similarities to moral rights.
e. Human rights are necessary for the fulfilment of a purpose
Human life has a purpose. The term “human right” is applied to those conditions
which are essential for the fulfilment of this purpose. No government has the power
to curtail or take away the rights which are sacrosanct, inviolable and immutable.
f. Human rights are universal
Human rights are not a monopoly of any privileged class of people. Human rights are
universal in nature, without consideration and without exception. The values such as
divinity, dignity and equality which form the basis of these rights are inherent in
human nature.
g. Human rights are never absolute
Man is a social animal and he lives in a civic society, which always put certain
restrictions on the enjoyment of his rights and freedoms. Human rights as such are
those limited powers or claims, which are contributory to the common good and
which are recognised and guaranteed by the State, through its laws to the
individuals. As such each right has certain limitations.
h. Human rights are dynamic
Human rights are not static, they are dynamic. Human rights go on expanding with
socio-eco-cultural and political developments within the State. Judges have to
interpret laws in such ways as are in tune with the changed social values. For
example, the right to be cared for in sickness has now been extended to include free
medical treatment in public hospitals under the Public Health Scheme, free medical
examinations in schools, and the provisions for especially equipped schools for the
physically handicapped.
i. Human rights as limits to state power
Human rights imply that every individual has legitimate claims upon his or her society
for certain freedom and benefits. So human rights limit the state’s power. These may
be in the form of negative restrictions, on the powers of the State, from violating the
inalienable freedoms of the individuals, or in the nature of demands on the State, i.e.
positive obligations of the State. For e.g. six freedoms that are enumerated under the
right to liberty forbid the State from interfering with the individual.
Summary
In summation, in this lesson shows that human rights are universal legal guarantees
protecting individuals and groups against actions and omissions that interfere with
fundamental freedoms, entitlements and human dignity. Human rights are inherent in
all human beings and are founded on respect for the dignity and worth of each
person. They stem from cherished human values that are common to all cultures and
civilizations.
3. The important landmarks in the progress of human rights
2.3.1 The Magna Carta, 1215
The Magna Carta, also known as the Great Charter, of 1215 is the most significant
constitutional document of all human history. The main theme of it was protection
against the arbitrary acts by the king. The 63 clauses of the Charter guaranteed
basic civic and legal rights to citizens, and protected the barons from unjust taxes.
The English Church too gained freedom from royal interferences. King John of
England granted the Magna Carta to the English barons on 15th June 1215. The
king was compelled to grant the Charter, because the barons refused to pay heavy
taxes unless the king signed the Charter.
2.3.2 The English Bill of Rights, 1689
The next source and avenue of the development of the philosophy of human rights is
the English Bill of Rights, enacted on December 16, 1689, by the British Parliament.
The British Parliament declared its supremacy over the Crown in clear terms. The
English Bill of Rights declared that the king has no overriding authority. The Bill of
Rights codified the customary laws, and clarified the rights and liberties of the
citizens. It lays down the twin foundations, which are the supremacy of the law, and
the sovereignty of the nation, upon which, the English constitution rests.
2.3.3 American Declaration of Independence, 1776
The first colonies to revolt against England were the thirteen States of America.
These states declared their independence from their mother country on 4th July
1776. The declaration charges the king with tyranny and affirms the independence of
the American colonies. The declaration of independence has great significance in the
history of mankind as it justified the right to revolt against a government that no
longer guaranteed the man’s natural and inalienable rights.
2.3.4 The US Bill of Rights, 1791
The US Constitution was enacted on 17 September 1787. The most conspicuous
defect of the original constitution was the omission of a Bill of Rights concerning
private rights and personal liberties Madison, therefore proposed as many as twelve
amendments in the form of Bill of Rights. Ten of these were ratified by the State
legislatures. These ten constitutional amendments came to be known as the Bill of
Rights. The overall theme of the Bill of Rights is that the citizen be protected against
the abuse of power by the officials of the States.
2.3.5 The French Declaration of the Rights of Man and of the Citizen, 1789
The fall of Bastille and the abolition of feudalism, serfdom and class privileges by the
National Assembly ushered France into a new era. On 4 August 1789, the National
Assembly proclaimed the Rights of Man and of the Citizens. The Rights were
formulated in 17 Articles. The Declaration of the Rights of Man and of the Citizen has
far reaching importance not only in the history of France but also in the history of
Europe and mankind. The declaration served as the death warrant for the old regime
and introduced a new social and political order, founded on the noble and glittering
principles. Further the declaration served as the basis for many Constitutions,
framed in different countries, where the framers gave top priority to human rights.
2.3.6 Declaration of International Rights of Man, 1929
After World War I, questions about human rights and fundamental freedoms began
to be raised. In 1929, the Institute of International Law adopted the Declaration of
International rights of Man. The Declaration declared that fundamental rights of
citizen, recognised and guaranteed by several domestic constitutions, especially
those of the French and the USA constitution, were in reality meant not only for
citizens of the states but for all men all over the world, without any consideration.
2.3.7 The UN Charter, 1945
The United Nations Charter was drafted, approved and unanimously adopted by all
the delegates of the 51 states, who attended the United Nations Conference at San
Francisco. The UN Charter contains provisions for the promotion and protection of
human rights. The importance of the Charter lies in the fact that it is the first official
document in which the use of ‘human rights’ is, for the first time traceable and which
also recognized the respect for fundamental freedom.
2.3.8 The Universal Declaration of Human Rights, 1948
The Universal Declaration of Human Rights was adopted by the General Assembly
of the United Nations on 10th December 1948. The Declaration consists of thirty
Articles and covers civil, political, economic, social and cultural rights for all men,
women and children. The declaration however is not a legally binding document. It is
an ideal for all mankind.
The Universal Declaration of Human Rights states:
Everyone, as a member of society, has the right to social security and Article 25
formulates it in a more precise way as …the right to security in the event of
unemployment, sickness, disability, widowhood, old age or other lack of livelihood in
circumstances beyond his control.
The concept of human rights has its origin in religion, humanitarian traditions and the
increasing struggle for freedom and equality in all parts of the world. Simply put,
human rights are matters of the law, tied integrally to political systems of government
and deeply implicated in moral, political and ethical philosophy, human rights are
also matters of the conditions of people's lives. Human rights are also about the
ways in which people, on a daily basis, experience their humanity and their worlds.
Human rights have been enshrined in the Universal Declaration of Human Rights
and codified in a series of international human rights treaties ratified by States and
other instruments adopted after the Second World War. There are also regional
human rights instruments, and most States have adopted constitutions and other
laws that formally protect basic human rights and freedoms. While international
treaties and customary law, together with interpretive practice by treaty organs, form
the backbone of international human rights law, other non-binding instruments such
as declarations, guidelines and principles adopted at the international level
contribute to its understanding, implementation and development. As shown in unit
one, within the human rights framework, we have international humanitarian law
(IHL) and human rights law
While IHL and human rights law have developed in their separate ways, some
human rights treaties include provisions that come from IHL: for instance, the
Convention on the Rights of the Child and its Optional Protocol on the involvement of
children in armed conflict, and the Convention on Enforced Disappearance.
The fight for the realisation of human rights in the daily lives of people persists.
Human rights are the language of basic human wants, in keeping with the notion of
dignity and equality of the human person. They help in articulating wants and the
response of those who have to address those wants. They are a universal language
of humanity to which a creative use of tools like indicators, both qualitative and
quantitative, can contribute by strengthening its understanding and implementation.
2.3.9 International Covenants on Human Rights
The Universal Declaration of Human Rights, 1948 was not a legally binding
document. It lacked enforcements. This deficiency was sought to be removed by the
U.N. General Assembly by adopting in December 1966, the two Covenants, which
are:
a. International Covenant on Civil and Political Rights, and
b. International Covenant on Economic, Social and Cultural Rights.
The two International Covenants, together with the Universal Declaration and the
Optional Protocols, comprise the International Bill of Human Rights. The
International Bill of Human Rights represents a milestone in the history of human
rights. It is a modern Magna Carta of human rights.
3. The important landmarks in the progress of human rights
3.1. Classifications of rights
Human rights can be broadly classified on five bases. They are:
a. Civil human rights;
b. Political human rights;
c. Economic human rights;
d. Social and cultural human rights; and
e. Development oriented human rights
The seventeenth, eighteenth and nineteenth centuries contributed and strengthened
the civil and political rights, which assured civil and political liberties. The Civil and
Political Human Rights are collectively known as ‘Liberty Oriented Human Rights’
because they provide, protect and guarantee individual liberty to an individual
against the State and its agencies. Liberty rights also referred to as Blue Rights are
the First Generation of Human Rights.
The twentieth century contributed to the development and strengthening of
economic, social and cultural rights and the rights of minorities as well. These rights
aim at promotion of the economic and social security through economic and social
upliftment of the weaker sections of the society. These rights are essential for dignity
of personhood as well as for the full and free development of human personality in all
possible directions. These rights ensure a minimum of economic welfare of the
masses and their basic material needs, recognised by the society as essential to
civilised living.
The economic, social and cultural rights, including the rights of the minorities are
collectively known as the “Security Oriented Human Rights” because these rights
collectively provide and guarantee the essential security in the life of an individual. In
the absence of these rights, the very existence of human beings would be in danger.
These are also known as the “Second Generation of Human Rights”. They are also
referred to as Red Rights or also as positive rights. These rights along with the Civil
and Political Rights were declared by the Universal Declaration of Human Rights and
later were recognised by (1) the Covenant on Civil and Political Rights and (2) the
Covenant on Economic, Social and Cultural Rights in December 1966.
The Development Oriented Human Rights are of a very recent origin in the late
twentieth century. These rights enable an individual to participate in the process of all
round development and include environmental rights that enable an individual to
enjoy the absolutely free gifts of nature, namely, air, water, food and natural
resources, free from pollution and contamination. These are known as the Third
Generation of Human Rights or Green Rights. They are also called as Solidarity
Rights, because their implementation depends upon international cooperation.
Solidarity rights are of special importance to developing countries, because these
countries want the creation of an international order that will guarantee to them the
right to development, the right to disaster relief assistance, the right to peace and the
right to good government.
Summary
Human rights are sometimes referred to as fundamental rights, basic rights, inherent
rights, natural rights and birth rights. They are essential for all individuals to protect
themselves against the State or public authority or against members of its own class.
Human rights are characterised as inalienable, connection with human dignity and
necessary for the purpose of fulfilment of human life.
The evolutions of human rights have taken place over centuries. The twentieth
century witnessed the crystallisation of the philosophy of Human Rights when the
United Nations adopted the UN Charter, 1945, The Universal Declaration of Human
Rights, 1948 and the International Covenants on Human Rights with further
emphasis to protection of rights of Women, Abolition of Slavery, Racial
Discrimination, Civil and Political Rights, Economic, Social and Cultural Rights and
most importantly the Rights of children. Human rights have been classified in
different bases. Each right signifies the awareness and emancipation of a particular
century. For example, the development-oriented rights belong to the twentieth
century which is essential to maintain world peace as well as right to clean and
wholesome.
3. The important landmarks in the progress of human rights
3.1. Classifications of rights
Human rights can be broadly classified on five bases. They are:
a. Civil human rights;
b. Political human rights;
c. Economic human rights;
d. Social and cultural human rights; and
e. Development oriented human rights
The seventeenth, eighteenth and nineteenth centuries contributed and strengthened
the civil and political rights, which assured civil and political liberties. The Civil and
Political Human Rights are collectively known as ‘Liberty Oriented Human Rights’
because they provide, protect and guarantee individual liberty to an individual
against the State and its agencies. Liberty rights also referred to as Blue Rights are
the First Generation of Human Rights.
The twentieth century contributed to the development and strengthening of
economic, social and cultural rights and the rights of minorities as well. These rights
aim at promotion of the economic and social security through economic and social
upliftment of the weaker sections of the society. These rights are essential for dignity
of personhood as well as for the full and free development of human personality in all
possible directions. These rights ensure a minimum of economic welfare of the
masses and their basic material needs, recognised by the society as essential to
civilised living.
The economic, social and cultural rights, including the rights of the minorities are
collectively known as the “Security Oriented Human Rights” because these rights
collectively provide and guarantee the essential security in the life of an individual. In
the absence of these rights, the very existence of human beings would be in danger.
These are also known as the “Second Generation of Human Rights”. They are also
referred to as Red Rights or also as positive rights. These rights along with the Civil
and Political Rights were declared by the Universal Declaration of Human Rights and
later were recognised by (1) the Covenant on Civil and Political Rights and (2) the
Covenant on Economic, Social and Cultural Rights in December 1966.
The Development Oriented Human Rights are of a very recent origin in the late
twentieth century. These rights enable an individual to participate in the process of all
round development and include environmental rights that enable an individual to
enjoy the absolutely free gifts of nature, namely, air, water, food and natural
resources, free from pollution and contamination. These are known as the Third
Generation of Human Rights or Green Rights. They are also called as Solidarity
Rights, because their implementation depends upon international cooperation.
Solidarity rights are of special importance to developing countries, because these
countries want the creation of an international order that will guarantee to them the
right to development, the right to disaster relief assistance, the right to peace and the
right to good government.
Summary
Human rights are sometimes referred to as fundamental rights, basic rights, inherent
rights, natural rights and birth rights. They are essential for all individuals to protect
themselves against the State or public authority or against members of its own class.
Human rights are characterised as inalienable, connection with human dignity and
necessary for the purpose of fulfilment of human life.
The evolutions of human rights have taken place over centuries. The twentieth
century witnessed the crystallisation of the philosophy of Human Rights when the
United Nations adopted the UN Charter, 1945, The Universal Declaration of Human
Rights, 1948 and the International Covenants on Human Rights with further
emphasis to protection of rights of Women, Abolition of Slavery, Racial
Discrimination, Civil and Political Rights, Economic, Social and Cultural Rights and
most importantly the Rights of children. Human rights have been classified in
different bases. Each right signifies the awareness and emancipation of a particular
century. For example, the development-oriented rights belong to the twentieth
century which is essential to maintain world peace as well as right to clean and
wholesome.
3. Institutions supporting human rights
Introduction
This lesson presents the role of Human rights institutions and NGOs in promoting
human rights. The term NGO stands for non-governmental organisation, and it
includes a variety of organisations such as “private voluntary organisations,” “civil
society organisations,” and “non-profit organisations”.
The fact that socio-economic rights have been included in the Bill of Rights and are
enforceable is, however, not sufficient to achieve the aims set out in the preamble. In
order for these rights to be of any value to the people they seek to protect, they need
to be implemented. One of the ways in which the implementation of these rights is
monitored is by means of the South African Human Rights Commission's annual
Economic and Social Rights Reports and, to a certain extent, the courts also play a
crucial role of ensuring the implementation of these rights. To give substance to
these Constitutional rights, independent institutions have been established to
promote rights and to strengthen constitutional democracy.
Institutions supporting human rights
Chapter 9 of the Constitution states that a number of "State Institutions Supporting
Constitutional Democracy" be provided for. These institutions include, inter alia;
The courts
The Public Protector
The South African Human Rights Commission
The Commission for the Promotion and Protection of the Rights of Cultural, Religious
and Linguistic Communities
The Commission for Gender Equality
The Auditor-General
The Electoral Commission
The Independent Authority to regulate Broadcasting
The task of these institutions is to promote and protect those rights within the Bill of
Rights which fall within their particular area. They are impartial, independent and
subject only to the Constitution and the relevant laws made in terms of the
Constitution. They must exercise their powers and perform their functions without
fear, favour or prejudice. The National Assembly is responsible for recommending
commissioners to each commission, and the President appoints them. The
Constitution guarantees them independence from organs of state. The process of
appointment is transparent and open to the public.
The relevant Commissions can be consulted when respective rights have been
violated. They have extensive powers which, in some cases, include searching
premises and attaching and removing appropriate articles/ documents as well as to
subpoena people to appear before them. They have to report each year to the
National Assembly on their activities and the achievement of their goals.
4.3.1 The Public Protector
The Public Protector protects citizens from unfair treatment by the state and its
officials as well as from inefficient administration and dishonesty with respect to
public money.
The Public Protector can investigate central and provincial government and local
authorities. This includes all state department employees such as police officers,
pension pay-outs clerks or electoral officers. It can also investigate corporations or
institutions performing a public function, such as Eskom and Telkom as well as
statutory councils such as the Human Sciences Research Council and the Council
for Scientific and Industrial Research.
4.3.2 South African Human Rights Commission (SAHRC)
The South African Human Rights Commission (SAHRC) is responsible for promoting
respect for human rights by all South Africans as well as protecting and monitoring
human rights in South Africa. It does this through raising public awareness, training
programmes, special projects, and through enquiries, hearings and legal
interventions. The SAHRC receives and investigates complaints of violations of
human rights. Investigation may entail mediation, litigation or publishing a report.
The Commission must also monitor and advise government on the implementation of
socio-economic rights. All government departments have to report annually to the
SAHRC about the progress they have made in reaching the goals set out in the Bill
of Rights, especially with reference to socio-economic rights. This is intended to
ensure that the various government departments put plans in place to improve the
quality of life of citizens.
4.3.3 Commission for the Promotion and Protection of the Rights of Cultural,
Religious and Linguistic Communities
This Commission's job is to promote respect for all communities in South Africa with
regard to culture, religion and language, as well as to build national unity among
these communities. Legislation has not yet been drafted by the Department of
Constitutional Affairs and Development to establish this Commission.
4.3.4 Commission for Gender Equality (CGE)
The Commission for Gender Equality (CGE) monitors gender equality and is
particularly concerned with the rights of women. It investigates and challenges laws,
practices and customs that discriminate against people because of their gender. It
monitors government, the private sector and other organisations to ensure that they
promote and protect gender equality. Focus areas include the representation of
women in public life, employment equity and the problems of violence and abuse
against women. The CGE aims to educate and inform the public about gender
equality. It monitors laws passed by local, provincial and national government to
ensure that gender equality is promoted. It also recommends new laws. The CGE
monitors government's adherence to international agreements such as the
Convention for the Elimination of All Forms of Discrimination Against Women
(CEDAW).
4.3.5 Auditor-General
The Auditor-General's office must check on the accounts, financial statements and
financial management of all government departments at all levels of government. It is
the taxpayers' watchdog, ensuring that their taxes are well spent. It promotes
accountability, helps fight corruption and prevents waste.
4.3.6 Electoral Commission
This Commission, known as the Independent Electoral Commission (IEC), impartially
manages elections at all three levels of government to make sure that elections are
free and fair. Its goal is to strengthen constitutional democracy through regular free
and fair elections in which every voter is able to vote.
4.3.7 The Independent Authority to regulate Broadcasting
In terms of the Constitution, an independent body must regulate broadcasting in the
public interest. The IBA makes sure that radio and television broadcasts are fair and
that they represent the views of South African society. It requires broadcasters to
provide balanced and impartial news coverage. Broadcasters must air a variety of
views when broadcasting matters of controversial public importance.
4.3.8 Temporary commissions
In addition to the above, there are two other commissions that have temporary
lifespans. They were provided for by the interim Constitution of 1993, their tasks
being to inquire into and address past injustices in two fields. They are
the Truth and Reconciliation Commission (TRC) and
the Commission on the Restitution of Land Rights (CRLR).
Despite their temporary status, these Commissions share many of the features of the
statutory institutions, particularly their independence and extensive powers.
The TRC's mandate has primarily been to document gross human rights violations in
the period from 1960 to 1994 and to provide reparations.
The CRLR's mandate is to restore land rights lost as a result of apartheid policies.
This applies particularly to people or communities who lost land through forced
removals or as a result of Black people being prevented from owning land. They can
apply to this Commission for the land to be returned or, where this is not possible,
making good the wrong in some other way, such as offering land elsewhere or
money as compensation.
3. Institutions supporting human rights
3.1. Other structures
In addition to the commissions described in Chapter 9, the Constitution sets up other
structures in South Africa to make sure that human rights are protected and a
constitutional democracy is guaranteed. These are:
The Constitutional Court
Independent Complaints Directorate (ICD)
Commission for Conciliation, Mediation and Arbitration (CCMA)
National Prosecuting Authority (NPA)
Judicial Service Commission
Financial and Fiscal Commission
Public Service Commission
Pan South African Language Board (PANSALB)
There is also a National Youth Commission and the Heath Special Investigating Unit
which are statutory bodies but are not included in the Constitution and therefore do
not enjoy constitutional protection.
4.4.1 The Constitutional Court
In terms of section 165 of the Constitution the judicial authority is vested in the
Courts. The courts are there to ensure that the fundamental human rights enshrined
in the Constitution are respected, protected, promoted and fulfilled. This court is the
highest court in the country when it comes to the Constitution and the Bill of Rights.
Everybody, including the government and the President, must comply with the
decisions of this court. All other courts in the country also have to comply with its
decisions. Human rights promise to protect the more vulnerable individual in the
context of increasingly precarious conditions of modern life. Therefore, any person or
group persons who have experienced violation of their human rights should have
access to effective judicial or other appropriate remedies at national and international
levels. In this context the courts play a crucial role in the enforcement and protection
of human rights entrenched in the Constitution. The selected cases provided below
gives a summary on the role that the courts have played in the protection of human
rights.
a. S v Makwanyane & another 1995 (3) SA 391 (CC)
The Constitutional Court in S v Makwanyane, dealt with the right to life vis-vis the
imposition of a death penalty. It was contended on behalf of the accused that the
imposition of the death penalty for murder was a cruel, inhuman and degrading
punishment that should be declared unconstitutional.
b. Soobramoney v Minister of Health (Kwazulu-Natal) 1998 (1) SA 765 (CC)
In Soobramoney case the court was called up to interpret the section 27 of the
Constitution. This section deals with the right to health care. The court held that the
provisions of section 27 imposes an obligation on the state to realise these rights,
subject to the availability of resources, and that the corresponding rights themselves
are limited by reason of the lack of resources.
c. Government of the Republic of South Africa and Others v Grootboom and Others
2001 (1) SA 46 (CC)
This case dealt with the right to have access to adequate housing as provided in
section 26 of the Constitution. In this case the Constitutional Court had to determine
the obligations imposed on the state by section 26 of the Constitution. In that regard
the Constitutional Court came to the conclusion that, although the overall housing
programme implemented by the State since 1994 had resulted in the building of a
significant number of homes, it failed to provide for any form of temporary relief to
those in desperate need, with no roof over their heads, or living in crisis conditions
(891). Their immediate need had to be met by relief which fell short of housing but
which fulfilled the standards of durability, habitability, and stability (892). For that
reason, the Court issued a declaratory order which required the State to devise and
implement a programme that included measures to provide relief for those desperate
people who had not been catered for before the introduction of the Cape
Metropolitan Area Accelerated Managed Land Settlement Programme (893).
d. Minister of Health and Others v Treatment Action Campaign and Others 2002 (10)
BCLR 1075
This case involved a challenge to the limited nature of the measures introduced by
the State to prevent mother-to-child transmission of HIV. It was argued that the State
unreasonably prohibited the administration of the antiretroviral drug, Nevirapine, at
public hospitals and clinics outside a limited number of research and training sites.
This drug was of proven efficacy in reducing mother-to-child transmission of
HIV/AIDS.
The Court stated that, in order for the State’s policy to be in line with the Constitution,
it must be reformulated to meet the constitutional requirement of providing
reasonable measures within available resources for the progressive realisation of the
rights of women and babies. The State was then ordered, to remove the restrictions
that prevented Nevirapine from being made available, to permit and facilitate the use
of Nevirapine, to make provision for counselors based at public hospitals to be
trained to provide the counselling necessary for the use of Nevirapine to reduce the
risk of mother-to-child transmission of HIV/AIDS.
e. City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 2012
(2) BCLR 150 (CC)
This case dealt with the eviction of a community from inner city of Johannesburg. In
its decision, the Constitutional Court found that it must take into account the
availability of human and financial resources in determining whether the state has
complied with the constitutional standard of reasonableness. The Court had to
determine the following. Firstly, whether it is just and equitable to evict the Occupiers
from the property and, if so, must the date of eviction be linked to the date by which
the City of Johannesburg is required to provide alternative accommodation?
Secondly, whether the housing policy of the City of Johannesburg is unconstitutional
to the extent that it excludes the occupiers of private-owned property from
consideration for temporary housing?
The Court ordered that the City of Johannesburg housing policy was
unconstitutional, that the City had to, re-allocate resources or re-work priorities so
that the occupiers could be accommodated.
f. Khosa and Others v Minister of Social Development and Others; Mahlaule and
Another v Minister of Social Development and Others 2004 (6) BCLR 569 (CC),
2004 (6) SA 505 (CC)
In Khosa and Others v Minister of Social Development and Others, the central
question before the court was whether the exclusion of non-citizens from the social
welfare system was consistent with the Constitution. The High Court had held that
the sections of the Social Assistance Act challenged by the applicants were
inconsistent with the Constitution and were, therefore, invalid. In addition, it struck
down the sections challenged by the applicants. The Constitutional Court made it
clear that equality in respect of access to socio-economic rights is implicit in the
reference to “everyone” being entitled to have access to such rights in section 27.
Those who are unable to survive without social assistance are equally desperate and
equally in need of such assistance.
The court found the denial of social assistance benefits, apart from being unfair, to
have grave consequences. It argued that the exclusion impacts negatively not only
on permanent residents without other means of support but also on the families,
friends and communities with whom they have contact.
In MEC Social Development, Eastern Cape v Mdodisa, MEC Social Development,
Eastern Cape v Mdodisa 2010 (6) SA 415 (SCA), a recipient of a disability grant had
her grant terminated abruptly. The payments were simply withdrawn by SASSA
without notice. She instituted proceedings to have the termination declared unlawful,
set aside and prayed for payment of arrear payments from the date of termination.
Her application was premised on breach of Section 3 (2)(b) of Promotion of
Administrative Justice Act (PAJA)703 following termination without notice and
opportunity to be heard.
The Supreme Court of Appeal held that termination of a disability grant without notice
was procedurally unfair. Termination is only permissible for a valid reason. From this
case, it is clear that where an administrative action is to be taken, an adequate
notice should be given to the affected party indicating the nature and purpose of the
administrative action, giving reasonable opportunity to be heard, outlining the
administrative action, giving adequate notice of right to review or appeal and the right
to request reasons. This case demonstrates the vital role played by the courts in the
protection of the right to social security, as well as the enforcement of the State’s
duty of ensuring that the beneficiaries of social grants are not prejudiced by arbitrary
decision making.
In Mbanga v MEC for Welfare, Eastern Cape and Another, Mbanga v MEC for
Welfare, Eastern Cape and Another 2002 (1) SA 359 (SE), the court awarded an
applicant back pay, together with interest, in respect of an old-age grant which was
never processed by the Director-General. The ineptitude, inefficiency and general
administrative disarray of the Welfare Department was expressed by Leach J as
follows:
…While patience is a virtue, I venture to suggest that even the patience of job would
have been tested by the inefficiency of officialdom in this case as, notwithstanding
regular enquiries being made to the office of the Department of Welfare in Port
Elizabeth, time passed without any indication whether the applicant's application had
been granted or refused (Leach, J. in Mbanga v MEC for Welfare, Eastern Cape and
Another).
In this case the court played a crucial role in protecting social assistance rights of the
applicant, in particular by ordering the Director-General to pay back the applicant’s
old-age grant based on the inordinate delay in processing that grant.
In Mbanga v MEC for Welfare (2001)8 BCLR 821 (SE) and Nomala v Permanent
Secretary Dept of Welfare 20 (2001) 8 BCLR 844 (E), the court emphasised that the
state provided social assistance grant must be made within a reasonable time of
application. In other cases, the courts also emphasised that the unilateral
suspension or termination of grants without proper adherence to the administrative
law principles of natural justice and the rights which accrued in terms of the statute,
is unlawful and invalid. According to the court, treating human beings with dignity
requires of the state to act in a reasonable manner towards those claiming social
security rights, such as the right to social grant. The court further remarked that
punitive orders should be extended to unreasonably delayed outcomes of
applications for a social grant.
Any person who feels that his or her rights have been threatened or violated may
approach the following institutions established by the Constitution to support
constitutional democracy:
4.4.2 Legal Aid South Africa (Legal Aid SA)
Legal Aid South Africa obtains its mandate from section 35 of the Constitution. In
terms of this section, every person who is arrested, detained or accused has a right
to a fair trial, which includes the right to have a legal practitioner assigned by the
State and at State expense. Legal Aid South Africa’s role is to provide legal aid to
those who cannot afford their own legal representation. The function of Legal Aid
South Africa is to provide legal aid to as many poor people as possible, including
vulnerable groups such as women, children and the rural poor. Legal Aid South
Africa provides assistance in both criminal and civil matters.
4.4.3 Independent Complaints Directorate (ICD)
The Independent Complaints Directorate (ICD) investigates all cases where the
police have acted wrongly or have violated rights. The need for the ICD was
recognised at the time of the negotiations which resulted in the 1993 interim
Constitution.
In any democracy it is the police department which is given the greatest powers to
infringe the rights of citizens. The ICD, as an independent body, is responsible for
ensuring that cases in which misconduct on the part of police officers is alleged, are
investigated impartially. The ICD considers complaints relating to deaths of persons
in police custody or deaths which are as a result of police action; the involvement of
police officers in criminal activities such as robbery, theft of motor vehicles and
assault; and behaviour which is prohibited such as neglect of duties or breaking the
South African Police Service (SAPS) code of conduct. It aims to help build public
confidence in the police service.
4.4.4 Commission for Conciliation, Mediation and Arbitration (CCMA)
The CCMA is an independent statutory body that helps anyone whose labour rights
have been violated and/or is a victim of an unfair labour practice involving such
matters as dismissal, wages and working conditions, workplace changes or
discrimination. It resolves disputes between employers and employees through
conciliation, mediation and arbitration.
4.4.5 National Prosecuting Authority (NPA)
This body is given the power to bring suspected criminals to trial. The Constitution
says that the NPA must be able to act "without fear, favour or prejudice" to ensure
fair trials and to prevent improper interference by government.
4.4.6 Judicial Service Commission
In terms of the Constitution, the Judicial Service Commission advises government on
any matter relating to the administration of justice and the judiciary, such as
complaints about judges and the appointment of judges. This assists in the right to a
fair trial.
4.4.7 Financial and Fiscal Commission
This advisory Commission was established by the interim Constitution. One of its
important responsibilities is to make recommendations regarding the fair share of tax
revenue which each sphere of government and, in particular, the individual allocation
for each province. The Commission plays the role of "mediator" between and
amongst the three spheres of government. It could also be regarded as a "check and
balance" on the collection, allocation and use of fiscal (tax revenue) resources.
4.4.8 Public Service Commission
This is a watchdog body to monitor the composition and efficiency of the state
bureaucracy. Public servants are formally appointed by the Public Service
Commission which sets their job descriptions, salary levels, service conditions and
the guidelines for carrying out their work. Public servants are accountable to the
legislature and can be called upon to account to the parliamentary committees.
4.4.9 Pan South African Language Board (PANSALB)
This Board's task is to protect, promote and develop the eleven official languages as
well as to promote and ensure respect for all languages spoken in this country.
4.4.10 National Youth Commission
The National Youth Commission is a statutory body but it is not included in the
Constitution and does not enjoy constitutional protection. It was established to assist
the government in developing a comprehensive youth development policy. One of its
tasks is to put in place measures to redress the imbalances caused by the various
forms of disadvantage suffered in the past by youth in general.
4.4.11 Heath Special Investigating Unit
This is also a statutory body that is not included in the Constitution and does not
enjoy constitutional protection. This is a special investigating unit and tribunal that
investigates maladministration, corruption and misappropriation with relation to
public funds and public assets. If there is sufficient evidence to sustain a civil action,
the Unit will institute legal proceedings in a Special Tribunal it convenes. The civil
proceedings brought in the Special Tribunal are similar to civil proceedings before
the High Court. This provides a complete process whereby an allegation is
investigated and where applicable presented to a judicial forum leading to a judicial
finding and the machinery to enforce such a finding.
4.4.12 The Commission for the Protection of the Rights of Cultural, Religious and
Linguistic Communities
The Commission for the Protection of the Rights of Cultural, Religious and Linguistic
Communities (hereafter the CRL Commission) is also an independent institution
established by the Constitution to promote and develop peace, friendship, humanity,
tolerance and national unity among cultural, religious and linguistic communities. Its
primary functions are to:
promote respect for the rights of cultural, religious and linguistic communities;
promote and develop peace, friendship, humanity, tolerance and national unity
among cultural, religious and linguistic communities, on the basis of equality, nondiscrimination and free association; and
recommend the establishment or recognition, in accordance with national legislation,
of a cultural or other council or councils for a community or communities in South
Africa.
The CRL Commission has the power to monitor, investigate, research, educate,
lobby, advise and report on issues concerning the rights of cultural, religious and
linguistic communities.
4.5 Summary on the role of civil society, and the private sector
As shown above, the non-state actors have come to occupy central positions in the
protection and promotion of human rights. Thus, government alone cannot protect
and fulfil the fundamental human rights enshrined in the Constitution. Henceforth, it
be said that the realisation of the fundamental human rights enshrined in the
Constitution is not the exclusive responsibility of the state.
In the new democratic era, many NGOs are focusing on reconstruction, development
and human rights. A number of innovative campaigns involving human rights
awareness, community mobilisation, advocacy and lobbying have been conducted
by NGOs in a range of fields. Some examples include:
g. The Reproductive Rights Alliance successfully campaigned to include a right to
"make decisions concerning reproduction" in the final Constitution and to ensure the
passing of pro-choice legislation. It is now involved in monitoring the implementation
of this legislation and promoting awareness of reproductive rights among South
African communities.
h. Many organisations have been involved in campaigns to highlight the prevalence
and causes of violence against women in South African society, law reform
initiatives, providing counselling and support services, and lobbying for improved
policing, medical and social services in cases of rape and domestic violence.
i. The Treatment Action Campaign (TAC) mobilises a broad range of constituencies
(e.g. the health sector, labour movement, the religious sector, business, youth and
women) - to campaign for:
affordable and quality treatment for people with HIV/AIDS;
treatment awareness and literacy among people with HIV/AIDS;
openness about HIV/AIDS and appropriate prevention strategies;
free anti-retroviral drugs for pregnant women and rape survivors;
the reduction of the costs of appropriate drugs by pharmaceutical companies and
other bodies both in South Africa and other poor countries;
a better and friendly health care system for all.
j. A number of NGOs have also formed networks and alliances to conduct advocacy,
lobbying and public education around key pieces of legislation that affect a range of
sectors. These include legislation giving effect to the constitutional rights to equality,
access to information, and administrative justice. A range of organisations working in
the fields of disability rights, gender equality, labour, socio-economic rights and
HIV/AIDS formed an Equality Alliance to conduct joint advocacy and lobbying around
the passage of the Promotion of Equality and Prevention of Unfair Discrimination Bill.
The aim of these efforts was to ensure that the legislation provides powerful and
effective mechanisms for promoting equality and preventing unfair discrimination in
both the public and private sector.
k. Certain NGOs are directly involved in the provision of services relating to human
rights and development. For example, the Legal Resources Centre, the Women's
Legal Centre undertake public interest litigation free of charge on behalf of
disadvantaged groups, and SECTION 27. SECTION 27′s priority areas are the right
to basic education guaranteed by section 29 of the Constitution. We view the right to
education as a significant health-determinant as well as a ‘gateway’ to the realisation
of other rights, particularly the rights to dignity and equality.
4.6 Summary
The role of chapter 9 institutions and NGO’s is fundamental in the ensuring the
realisation of human rights. In particular, the NGO’s play important role of ensuring
that the human rights are realised and defended. Furthermore, the NGO’s provide
vital information about human rights on the ground, and give a voice and face to
human rights. NGOs assist to implement and monitor the implementation of the
decisions and resolutions of the Council at the national level. NGOs are thereby
often bridging the gap between the international, regional and national levels, by
helping to translate our work into action, by triggering change, and by reminding us
to strive for accountability.
3. Historical background of human rights in South Africa
Introduction
In lesson one it was shown that human rights are based on the principle of respect
for the individual. The fundamental assumption is that each person is a moral and
rational being who deserves to be treated with dignity. They are called human rights
because they are universal. In other words, human rights constitute a set of norms
governing the treatment of individuals and groups by states and non-state actors on
the basis of ethical principles regarding what society considers fundamental to a
decent life. These norms are incorporated into national and international legal
systems, which specify mechanisms and procedures to hold the states/governments
accountable and provide redress for alleged victims of human rights violations.
This lesson provides a discussion on a brief historical background on human rights
development in South Africa. It further provides an analysis of fundamental human
rights entrenched in the Constitution of the Republic of South Africa, 1996.
Historical background of human rights in South Africa
Human rights developments under the new democratic government in South Africa
can only be understood and appreciated against the historical background of
colonialism and apartheid. These regimes violated the full spectrum of human rights
recognised in the Universal Declaration of Human Rights (1948). Apartheid policy
consisted of the enforced political, economic and social segregation of people along
racial lines. Whites monopolised the formal institutions of power and enjoyed
extensive rights and privileges. While relative privileges were bestowed on the
Coloured and Indian racial groups, the African majority was the most disadvantaged
in all spheres. This segregation was enforced through a gamut of laws. The
cornerstone of these laws was the Population Registration Act of 1950 which
classified every person according to their ethnic or racial group. As described by the
Constitutional Court, "Race was the basic, all-pervading and inescapable criterion for
participation by a person in all aspects of political, economic and social life.
In expounding on the legacy of Apartheid in South Africa, the Constitutional Court in
Brink v Kitshoff pointed out that:
Apartheid systematically discriminated against black people in all aspects of social
life. Black people were prevented from becoming owners of property or even residing
in areas classified as ‘White’ which constituted nearly 90 percent of the landmass of
South Africa, senior jobs and access to established schools and universities were
denied to them, civic amenities, including transport systems, public parks, libraries
and many shops were also closed to black people. Instead, separate and inferior
facilities were provided. The deep scars of this appalling programme are still visible
in our society. [1]
During 1948 when the National Party came to power public welfare policies for
Whites became more expansive, whereas welfare policies for Blacks were nonexistent. [2] Although formally urban Africans were included in the maintenance
system, Bhorat [3] points out that very few of these grants reached African parents
and none were given to people living in rural areas.
It is within this context that the violation of human rights by the National Party took
the form of the unequal distribution of economic opportunities in favour of the
minority group. [4] An important consequence of this was that the enforcement of
Apartheid was implemented through a wide range of legislation, for example pass
laws were introduced during the 19th century in the Cape Colony, Natal Colony, and
the Black Land Act [5] prohibited Africans from owning or renting land outside the
designated reserves. [6] The reserves formed the basis of the bantustans and
independent homelands during the era of Apartheid under the National Party rule. [7]
The Black Land Act and the Development Trust and Land Act [8] restricted the
African population to 13 percent of the total land area of South Africa. [9] Liebenberg
argues that Africans who remained on the farms in White areas were reduced to the
status of labour tenants or squatters. [10] She further notes that the Black Urban
Areas Act [11] extended segregation to urban areas. [12] She maintains that this laid
the groundwork for the establishment of ‘locations’ on the peripheries of White towns
and cities for the accommodation of Black people who were functional to the labour
needs of the White, [13] dominant economy, and enabled local authorities to
administer stricter pass laws and control of Black urban dwellers. [14]
Blacks, Whites, Coloureds and Indians were segregated in the labour market, with
Blacks relegated to the lowest skilled and lowest paid occupations while the job
reservation system protected poor Whites from labour market competition from other
races. [15] The government created separate educational facilities, providing
resources into White schools while neglecting those of the other groups. [16]
In other sectors of the economy, the Mines and the Works Act [17] legislated job
reservation policies which excluded Blacks from a range of skilled jobs on the mines
and railways. [18] In 1951 Parliament enacted the Native Building Workers’ Act, [19]
making it an offence for Africans to perform skilled building work in White areas. [20]
These were the towns, cities and industrial areas where most building work was
done. During the 1950s discrimination in terms of colour was extended further, when
class of work was reserved for workers of a specified race. [21] These laws applied
to all races, but the courts held that the laws were applicable only to unskilled work,
which was performed mostly by Black people. [22]
To add salt to the injury, government enacted the Population Registration Act. [23]
This Act classified the population into four racial categories, which structured
differential access to social welfare resources. [24] Consequently, race became a
primary factor in access to services and in the allocation of social security benefit.
[25] Liebenberg posits that the Apartheid legal system provided limited legal tools
which could be used to resist these large scale violations of a range of internationally
recognised civil and political rights, as well as economic, social and cultural rights.
[26] She notes that the system of parliamentary sovereignty under the Apartheid era
Constitution did not allow for judicial review of legislation for consistency with human
rights norms. [27]
There was also limited scope for challenging the systematic injustices of the
Apartheid era through the common law. [28] In terms of the common law there is no
entitlement to social and economic resources and services on the basis of need. [29]
However the common law protected people’s access to social benefits and
resources within the context of administrative law. [30] According to Liebenberg, this
could arise, for example, when people are deprived of access or denied access to a
social benefit through procedurally unfair administrative action. [31]
The period between 1972 until 1990 is often described as a trend towards reincorporation and the transformation of South Africa. [32] It is worth noting that South
Africa was the object of a concerted international campaign of diplomatic isolation
against the policy of Apartheid during the era of the National Party rule between
1948 and 1994. [33] Sooner, the National Party realised the economic imperative to
integrate Blacks into the economy and this entailed changes to the introduction of
the Interim Constitution and ultimately the final Constitution of 1996.
Historical background of human rights in South Africa
3.1. Human rights enshrined in the South African Constitution
Human rights are essential for the overall development of individuals. The Interim
Constitution, 1993 provided for a historic bridge between the past of a deeply divided
society characterised by strife, conflict, untold suffering and injustice, and a future
founded on the recognition of human rights, democracy and peaceful co-existence
and development opportunities for all South Africans, irrespective of colour, race,
class, belief or sex. These provision were included in the final Constitution, 1996.
South Africa’s final Constitution was intended to aid in the establishment of a postapartheid society based on democratic values, social justice and fundamental human
rights. In doing so, it was designed not only to defend ‘natural rights’ and restrict the
powers of the state over the individual, but also to play a role in building an open,
democratic society, holding the government to account where necessary. The
Constitutional Court’s senior judges have stressed the need for the Constitution to be
‘interpreted generously to achieve its purposes’, which include social transformation.
The adoption of the new Constitution represents a milestone in the history of human
rights in South Africa. The preamble states that the Constitution is adopted so as to:
Heal the divisions of the past and establish a society based on democratic values,
social justice and fundamental human rights; Lay the foundations for a democratic
and open society in which government is based on the will of the people and every
citizen is equally protected by law; Improve the quality of life of all citizens and free
the potential of each person; and Build a united and democratic South Africa able to
take its rightful place as a sovereign state in the family of nations.
The Bill of Rights is "a cornerstone of democracy in South Africa" and "affirms the
democratic values of human dignity, equality and freedom". It integrates a full range
of civil and political as well economic, social and cultural rights. It is also innovative in
that it moves beyond paying lip service to the indivisibility and interdependence of
human rights. These principles are given concrete effect by subjecting the full range
of rights in the Bill of Rights to judicial enforcement. No distinction is thus made
between justiciable "first generation rights", and "second generation" rights. The
latter group of rights, where they are recognised in national constitutions, are usually
relegated to the status of unenforceable directive principles of State policy. The
economic and social rights recognised in the Constitution include:
labour rights (s 23);
the right to an environment that is not harmful to health or well-being, and to have
the environment protected through reasonable legislative and other measures that
secure sustainable development (s 24);
equitable access to land; security of land tenure; and restitution of property or
equitable redress for property that was dispossessed after 1913 as a result of past
racially discriminatory laws or practices (s 25(5) - (9));
the right of access to adequate housing and a prohibition on the arbitrary eviction of
people from their homes or the demolition of homes (s 26);
the right of access to health care services (including reproductive health care),
sufficient food and water, and social security (s 27);
the right against the refusal of emergency medical treatment (s 27(3));
the right of children to basic nutrition, shelter, basic health care services and social
services (s 28(1)(c));
educational rights (s 29);
adequate accommodation, nutrition, reading material and medical treatment at State
expense for persons deprived of their liberty (s 35(2)(e);
It is important note that the rights in the Bill of Rights are subject to the limitations
contained in section 36. It is important to establish the extent of the possible
limitations on the right to access to social security. Two forms of limitation must be
considered.
First, the limitation must comply with the requirements contained in the general
limitation clause (sometimes referred to as external limitation), bearing in mind all
relevant factors, some of which are explicitly mentioned in the Constitution. The
relevant factors referred to in section 36 (1) (a)-(e) are: (a) the nature of the right;(b)
the importance of the purpose of the limitation; (c) the nature and extent of the
limitation; (d) the relation between the limitation and its purpose and (e) less
restrictive means to achieve the purpose.
Second, the limitation can also be justified on the basis of specific qualifications
pertaining to a specific right (sometimes referred to as internal limitation or
qualifiers). For instance, in the case of the right to access to adequate housing or
social security, the state is required to take reasonable measures, bearing in mind its
available resources, to achieve the progressive realisation of the said right. In
Soobramoney v Minister of Health (Kwazulu-Natal) 1998 1SA 765 (CC) para 11,
Chaskalson P pronounced that the obligations imposed on the state by sections 26
and 27 in regard to access to housing, health care, food, water and social security
are dependent upon the resources available for such purposes, and that the
corresponding rights themselves are limited by reason of lack of resources.
In light of the above discussion, it is clear that the State's duty in relation to some of
these rights is expressly qualified. For example, the sections dealing with the rights
of access to housing, health care, food, water and social security, expressly state:
The State must take reasonable legislative and other measures, within its available
resources, to achieve the progressive realisation of each of these rights. (ss 26(2)
and 27(2)). This qualification is similar to article 2 of the International Covenant on
Economic, Social and Cultural Rights (1966) which describes the nature of States
parties' obligations in relation to the rights recognised in the Covenant.
However, other economic and social rights such as the right to basic education and
the socio-economic rights of children are not subject to the same qualification and
are thus more directly enforceable. The way the socio-economic rights are framed in
the Bill of Rights suggests that they should not be regarded as commodities to be
dispensed by the State, free of charge to a passive citizenry. The State's primary
duty is to create an enabling environment through which people can gain "access to"
the various rights. An enabling environment has the following key elements:
ensuring that resources, services and opportunities are made available without unfair
discrimination;
creating mechanisms for accessing the rights that are transparent and enable
equitable participation by all social groups;
adopting special measures to assist vulnerable and disadvantaged groups to gain
access to the rights;
refraining from erecting barriers that make it more difficult for people to access or
enjoy their rights.
Conceptualised in this way, the economic and social rights in the Constitution can
play an important role in facilitating development that is truly people-centred and
empowering. These developmental rights are integrally linked to the civil rights in the
Bill of Rights, such as the right to equality, freedom of expression, assembly and
association, the right of access to information and just administrative action. Equality
is a central constitutional value (s 1). Equality “includes the full and equal enjoyment
of all rights and freedoms”. Legislative and other measures “designed to protect or
advance persons, or categories of persons, disadvantaged by unfair discrimination”
may be taken in order to promote the achievement of equality (s 9(2)).
Prioritising the needs of disadvantaged groups and taking special measures to
expand their access to opportunities, resources and services would thus be
consonant with the right to equality in the Bill of Rights. The Bill of Rights gives
everyone the right of access to any information held by the State; and information
held by private parties that “is required for the exercise or protection of any rights”
(s32).
In addition, everyone has the right to administrative action that is “lawful, reasonable
and procedurally fair, and to written reasons when their rights have been adversely
affected by administrative action” (s 33). National legislation must be enacted to give
effect to these rights. These rights can also play an important role in assisting people
to gain access to economic and social rights through open and fair procedures.
The possibility of obtaining a remedy through the courts for the violation of any of the
rights in the Bill of Rights (including social and economic rights) is a significant
safeguard. However, the courts should not be seen as the primary institution for the
realisation of the rights in the Bill of Rights. All organs of State are under a duty to
“respect, protect, promote and fulfil the rights in the Bill of Rights” (s 7(2)). The
executives and legislatures within the national, provincial and local spheres of
government have a crucial role to play in ensuring that these rights are effectively
realised through adopting and implementing effective policies, laws and
programmes.
The Constitution also creates a number independent institutions supporting
constitutional democracy. Their role in the promotion and protection of human rights
is examined in learning unit 4 paragraph 4.5 below.
Another innovative feature of the South African Bill of Rights is its application, not
only to the State, but also to private actors such as individuals and companies. Some
rights are explicitly stated to be binding on private actors: for example, the duty not to
discriminate unfairly (s 9(4)) and to provide information that is required by others for
the exercise or protection of their rights (s 32(1)(b)). In determining whether, and to
what extent, the other rights in the Bill of Rights are binding on private actors, regard
must be had to the nature of the right and the nature of the duty imposed by that
right (s 8(2)). This makes it possible to argue, for example, that a polluting industry is
directly liable under the Constitution for actions that violate the right to an
environment that is not harmful to health or well-being (s 24(a)).
South Africa is now faced with the challenge of building on the foundations of human
rights, democracy and development laid by the new Constitution. However, it was
also critical to understand and deal with the human rights violations of the past. The
Constitution required the adoption of mechanisms to promote national unity and
reconciliation.
Summary
In summary, despite the incorporation of human rights in the Constitution. South
Africa faces a growing number of human rights challenges, such as, high levels of
systemic poverty, unemployment and inequalities; poor communities have limited or
no access to basic rights such as housing, water and sanitation, and these matters
are not adequately addressed by local municipalities, xenophobic violence remain
prevalent, while the protection of LGBTQ+ rights is also inconsistent.