Comparative protection of rights
approach with another country
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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.
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The Constitution states:
1)
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.
2)
The state must respect, protect, promote and
fulfil the rights in the Bill of Rights.
3)
The rights in the Bill of Rights are subject to the
limitations contained or referred to in section 36,
or elsewhere in the Bill.’
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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.
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.
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Read from page 162-163 and write another 4 more
sections you believe to be important to the South
African Bill of Rights.
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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).
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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.
 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.
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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.
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.’
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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.
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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.
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.
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]
1)
2)
3)
4)
5)
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.