Equality The first right protected by the Bill of Rights is the right to equality, located in section 9 of the Constitution, which contains strong provisions on
legal and
social equality and explicit prohibitions against unfair
discrimination. At the broadest level, section 9(1) provides for universal
equality before the law. Section 9(2) expands on this provision, stipulating that "Equality includes the full and equal enjoyment of all rights and freedoms." However, section 9(2) also provides that, "To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken." Section 9(2) was applied to uphold
affirmative action measures in
Minister of Finance v Van Heerden and
South African Police Service v Barnard. Subsections 9(3) to 9(5) deal expressly with unfair discrimination. Discriminatory conduct or legislation is treated differently according to the grounds for the discrimination in question, and, in particular, according to whether it constitutes discrimination on the basis of one of the "listed grounds" enumerated explicitly in section 9(3). These so-called listed grounds are
race,
gender,
sex,
pregnancy, marital status, ethnic or social origin,
colour,
sexual orientation,
age,
disability,
religion, conscience, belief, culture,
language and birth. Unfair discrimination on a listed ground is impermissible, regardless of whether it is direct or
indirect, and regardless of whether it is carried out by the state (in contravention of section 9(3)) or by a person (in contravention of section 9(4)). Moreover, discrimination on a listed ground is presumed to be unfair: in terms of section 9(5), such discrimination is "unfair unless it is established that the discrimination is fair". On the other hand, in cases of discrimination on the basis of any other, non-listed ground, the constitutional threshold is higher, because only section 9(3) is applicable: under that provision, the state "may not unfairly discriminate directly or indirectly against anyone" on
any ground, but, in the case of non-listed grounds, the discrimination must be shown to be unfair. Section 9(4) additionally provides that national legislation must be enacted "to prevent or prohibit unfair discrimination"; the legislation thus enacted was the
Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, better known as the Equality Act, which is enforceable in the
Equality Court.
Human dignity Section 10 provides that, "Everyone has inherent
dignity and the right to have their dignity respected and protected". This right to dignity is one of several places in which dignity features in the South African Constitution and
constitutional law, and, though it is often considered alongside other rights, it is rarely on its own dispositive.''
Nonetheless, Dawood
itself is emblematic of a major category of exceptions to this general rule, in which dignity itself has operated as a dispositive, first-order rule; these exceptions largely relate to intimate associations such as marriage, the Dawood
court having held that the right to family life is implicitly protected by section 10 insofar as family relationships are of "defining significance" for many individuals. It also likely that, in a similar fashion, section 12(2)(a) entails a right of access to contraception. Other important cases concerning the right to privacy include Mistry v Interim National Medical and Dental Council of South Africa, Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors
, Case v Minister of Safety and Security
, De Reuck v Director of Public Prosecutions
, and Minister of Justice and Constitutional Development v Prince'', all judgments in
criminal law or
criminal procedure.
Freedom of religion and thought Section 15(1) provides for the universal right to
freedom of conscience;
freedom of religion; and
freedom of thought, belief, and opinion. The right to freedom of religion has generated the largest body of case law, including such cases as
Christian Education South Africa v Minister of Educationand
Minister of Home Affairs v Fourie. In
Christian Education, as well as in the earlier matter of
S v Lawrence; S v Negal; S v Solberg, the Constitutional Court adopted the
Supreme Court of Canada's definition of freedom of religion, as articulated in
R v Big M Drug Mart. Under this definition, freedom of religion "includes both the right to have a belief and the right to express such belief in practice". Sections 15(2) and 15(3) clarify the scope and implication of the freedoms protected in section 15(1). Section 15(2) provides that, "
Religious observances may be conducted at state or state-aided institutions, provided that— those observances follow rules made by the appropriate public authorities; they are conducted on an equitable basis; and attendance at them is free and voluntary." Constitutional negotiators apparently included this provision in an overt effort to preclude a debate about
prayer in public schools. Thus, in line with
Islamic Unity Convention, South African courts have interpreted freedom of expression broadly.'''' The
Supreme Court of Appeal has held that
commercial speech also constitutes protected expression. The Equality Act of 2000 contains statutory prohibitions on
hate speech which are broader than the limitations implied by section 16(2). In
Qwelane v South African Human Rights Commission, the Constitutional Court considered whether those statutory prohibitions are consistent with the section 16 right to freedom of expression.
Assembly and protest Section 17 provides for a universal
right to assemble, to demonstrate, to picket, and to present petitions, provided in each case that the right is exercised "peacefully and unarmed". The Constitutional Court has frequently held
obiter that these section 17 rights aim to promote freedom of expression in a democratic society.
Pilane v Pilane, and
Mlungwana v S. Freedom of association Section 18 protects the universal right to
freedom of association. Like the section 17 rights, these rights have frequently been linked to freedom of expression. Writing for the Constitutional Court in
Pilane, Justice
Thembile Skweyiya commented: It strikes me that the exercise of the right to freedom of expression can be enhanced by group association. Similarly, associative rights can be heightened by the freer transmissibility of a group's identity and purpose, expressed through its name, emblems and labels. These rights are interconnected and complementary. Political participation, actuated by the lawful exercise of these rights, can and should assist in ensuring accountability in all forms of leadership and in encouraging good governance.''
The Constitutional Court discussed freedom of association at length in New Nation Movement v President'', in which Justice
Mbuyiseli Madlanga held that the right to freedom of association implies not only a positive right to be free to form an association but also a negative right, protecting "the freedom not to associate at all, if that be the individual's choice". On this basis, the Constitutional Court held that section 17, read with the section 19(3)(b) right to stand for office, created a right to stand for office as an
independent candidate rather than as a member of a
political party.
Citizens' rights Political rights Section 19 grants a detailed set of
political rights to South African citizens. Section 19(1) protects citizens' freedom "to make political choices", including the right to form a political party, to participate in the activities of a political party, and to campaign for a political party or cause. Section 19(2) protects the right of citizens to
free, fair and regular elections to all legislative bodies. Finally, section 19(3) protects the right of adult citizens to
vote in secret in elections for any legislative body, as well as the right to stand for public office and, if elected, to hold office. These sections are closely related to South Africa's history of racial suffrage and widespread
disenfranchisement; they are therefore also closely related to section 20, which provides that, "No citizen may be deprived of citizenship". In
Ramakatsa v Magashule, the Constitutional Court said of section 19 that:The scope and content of the rights entrenched by this section may be ascertained by means of an interpretation process which must be informed by context that is both historical and constitutional. During the apartheid order, the majority of people in our country were denied political rights which were enjoyed by a minority... Many organisations whose objectives were to advance the rights and interests of black people were banned. These organisations included the present
ANC. Participation in the activities of these organisations constituted a serious criminal offence that carried a heavy penalty. The purpose of section 19 is to prevent this wholesale denial of political rights to citizens of the country from ever happening again.''
The Constitutional Court has a large body of case law on the interpretation of the political rights, including a large number in electoral law. In addition to New Nation Movement
and Ramakatsa
, important cases include UDM v President
, New National Party v Government
, August v Electoral Commission
, and Minister of Home Affairs v NICRO''.
Civil rights Under the heading of "Freedom of Movement and Residence", section 21(3) provides that citizens have "the right to enter, to remain in and to reside anywhere in, the Republic", and section 21(4) provides for citizens' right to a
passport. These protections are closely connected to the former
pass laws and
Group Areas Act, both detested apartheid policies; The most direct use of section 21 rights in
constitutional litigation was in
Geuking v President, wherein it was contended that section 21(3)'s right to "remain in" South Africa must be considered when the state assents to the
extradition of a citizen under the Extradition Act 67, 1962; however, the court rejected that contention. Section 22 enshrines citizens' right to freedom of trade, freedom of occupation, and freedom of profession. It also provides that the practice of a trade, occupation, or profession may be regulated by law. Section 22 rights have most often been litigated in cases involving agreements in
restraint of trade. In that context, in
Reddy v Siemens, Acting Judge of Appeal
Frans Malan suggested, on behalf of a unanimous Supreme Court of Appeal, that
freedom of contract is "an integral part" of the section 22 right.''
Likewise, Chief Justice Pius Langa wrote in Phumelela Gaming and Leisure v Gründlingh
that:The Bill of Rights does not expressly promote competition principles, but the right to freedom of trade, enshrined in section 22 of the Constitution is, in my view, consistent with a competitive regime in matters of trade and the recognition of the protection of competition as being in the public welfare.''Section 22's predecessor in the Interim Constitution was not restricted in application to South African citizens and therefore could plausibly accommodate non-citizens and even juristic persons in the protections it offers.''''
Freedom of movement While sections 21(3) and 21(4) are limited to South African citizens, sections 21(1) and 21(2) are not. They provide, respectively, for a universal right to
freedom of movement and for a universal "right to leave the Republic". In
Affordable Medicines Trust v Minister of Health, the Constitutional Court considered the application of the right to freedom of movement to a licensing scheme under which pharmaceutical licenses could only be exercised at particular premises; in that case, it held that "the right to decide where one will practise one's profession" is subject to regulation under section 22 of the Constitution, since it is a right relating to the practice of a profession.''''
Labour relations Section 23 sets out several
labour rights, both individual and associational in nature and applying to employers as well as to employees. Sections 23(1) and 23(2) concern universal
workers' rights. Section 23(1) provides for a right to "fair labour practices", while section 23(2) provides for the
right to strike and the right to form, join, and participate in the activities of a
trade union. Similarly, under section 23(3), every employer has the right to form, join, and participate in the activities of an
employers' organisation. Section 23(4) provides that every trade union and employers' organisation has the right "to determine its own administration, programmes and activities; to organise; and to form and join a federation", while section 23(5) provides that every trade union, employers' organisation, and employer has the right to engage in
collective bargaining. The Constitutional Court has interpreted these rights in cases including
SANDU v Minister of Defence I,
SANDU v Minister of Defence II,
NEHAWU v University of Cape Town, and
NUMSA v Bader Bop. Section 23 concludes with the provisos, in section 23(5) and section 23(6) respectively, that national legislation may be enacted to regulate collective bargaining and to recognise
union security arrangements contained in collective agreements. Accordingly, in an early statement of its
principle of subsidiarity, the Constitutional Court held in
SANDU II that litigants seeking to enforce their section 23(5) right to collective bargaining should base their claims on any legislation (including
subordinate legislation) enacted to regulate the exercise of that right, rather than relying directly on the text of section 23(5).
Environment Section 24 sets out two universal
environmental rights. The first, provided in section 24(a), is the right of individuals "to an environment that is
not harmful to their health or wellbeing". The second, provided in section 24(b), is the right "to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures"; such measures must "prevent
pollution and
ecological degradation; promote
conservation; and secure
ecologically sustainable development and use of natural resources while promoting justifiable economic and social development." In
Eskom v Vaal River Development Association, the Constitutional Court held that electricity supply restrictions, effected by
Eskom in
Lekwa Local Municipality and
Ngwathe Local Municipality, impinged upon residents' section 24(a) right, because the restrictions had an adverse effect on the
treatment of sewage and therefore on the quality of the water supply. Justice Madlanga commented, "If the flow of raw faeces into the
Vaal River is not violative of the right to an environment that is not harmful to health or well-being, I do not know what is."''''
Property Section 25, the so-called property clause, explicates constitutional
property rights. In comparative international terms, it is unusually detailed, In June and September 1993, for example, there were marches in
Kempton Park and
Pretoria by communities demanding constitutional recognition of their right to return to land from which they had been dispossessed; at the same time, other communities were determined that section 25 should entrench and protect rights to
private property. The heart of constitutional property rights is subsections 25(1) and 25(2), which protect persons against deprivation of property and
expropriation of property respectively. According to these provisions, deprivation or expropriation of property is permissible only when it proceeds "in terms of law of general application". Further, section 25(1) adds that deprivation of property may not be
arbitrary, and section 25(2) adds that expropriation of property must be "for a public purpose or in the public interest" and "subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court". In
FNB v Commissioner for the South African Revenue Services, an early case on the interpretation of the property clause, the Constitutional Court held that the overriding purpose of these provisions is to "strike a proportionate balance" between the protection of property rights and the public interest. In the same case, the court declined to define property comprehensively, but held that section 25 certainly applied to ownership of corporeal movables and land.'''' Section 25(3) provides further guidance on the circumstances in which expropriation is permissible. It requires that, "The amount of the compensation and the time and manner of payment must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances". Subsections 25(3)(a)–(e) provide a non-exhaustive list of five factors which are deemed to be "relevant circumstances". The interpretation of section 25(3)'s requirement of "just and equitable compensation" has been highly controversial. In particular, in the context of policy proposals to
expropriate land without compensation, there has been significant debate about whether section 25(3) licenses expropriation where the quantum of compensation is set at zero. In 2021, Parliament considered and rejected the Constitution Eighteenth Amendment Bill, which would amend section 25 and explicitly license expropriation for nil compensation. Remaining provisions of section 25 concern the application of property rights to the state's pursuit of land reform, thus providing a constitutional framework for land reform. Section 26(3), on the right to
due process in evictions, provides in part that, "No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances." In
Jaftha v Schoeman, the Constitutional Court found that this right seeks to correct the apartheid history of
forced removals by protecting
security of tenure. The rights of persons facing eviction are protected most directly by the Extension of Security of Tenure Act 62 of 1997 and the
Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998. However, the Constitutional Court has applied the Constitution to evictions in cases including
Port Elizabeth Municipality v Various Occupiers,
President v Modderklip Boerdery,
Residents of Joe Slovo Community v Thubelisha Homes, and
Occupiers of 51 Olivia Road, Berea Township and 197 Main Street Johannesburg vs City of Johannesburg; many of these cases involve evictions from
unlawfully occupied land. Per
Jaftha v Schoeman, housing rights have significant implications for
South African civil procedure, particularly as concerns the award of
writs of execution against debtors' homes. Cases dealing with the consequences of
Jaftha include
Menqa v Markom, Standard Bank v Saunderson, and
Gundwana v Steko Development. Basic services and social security Section 27(1) enshrines three further universal
socioeconomic rights, which
David Bilchitz suggests are considered together because they are interdependent: each is valueless without the other. Access to water and sanitation has also been considered as an element of the access to adequate housing that is protected in section 26(1), as in
Residents of Joe Slovo Community. In addition, section 28(1) lists nine rights that are held uniquely by children. In respect of domestic and family life, children have the right "to a name and a nationality from birth; to family care or parental care, or to appropriate alternative care when removed from the family environment; to basic nutrition, shelter, basic health care services and social services; [and] to be protected from maltreatment,
neglect,
abuse or degradation". Two further rights concern
child labour: children have the right "to be protected from exploitative labour practices" and "not to be required or permitted to perform work or provide services that— are inappropriate for a person of that child’s age; or place at risk the child’s well-being, education, physical or mental health or spiritual, moral or social development". In criminal procedure, children have the right "not to be detained except as a measure of last resort". A child who is detained "may be detained only for the shortest appropriate period of time, and has the right to be kept separately from detained persons over the age of 18 years; and treated in a manner, and kept in conditions, that take account of the child's age". In civil procedure, children have the right "to have a legal practitioner assigned to the child by the state, and at state expense, in
civil proceedings affecting the child, if substantial injustice would otherwise result". Finally, children have the right "not to be
used directly in armed conflict, and to be protected in times of armed conflict".
Education Section 29 enshrines the universal
right to education and defines the positive responsibilities of the state in this respect. It has been described as a "hybrid right": while section 29(1) protects a socioeconomic right, sections 29(2) and 29(3) concern
civil rights. Section 29 is generally viewed as emanating closely from the apartheid context in which the Bill of Rights was negotiated: the right to education had a "restitutional" dimension, given the effects of the
Bantu Education system, but also a protective dimension for those who treasured
Afrikaans as a
medium of instruction or were otherwise reluctant to submit to state control of education.'''' Yet the wording of section 29(1)(a) does not entail that basic education must be
free of charge, in
Minister of Basic Education v Basic Education for All, the Supreme Court of Appeal confirmed that section 29(1)(a) entitled all learners at public schools "to be provided with every textbook prescribed for his or her grade before commencement of the teaching of the course for which the textbook is prescribed". Section 29(2) provides further that, "Everyone has the right to receive education in the
official language or languages of their choice in public educational institutions where that education is reasonably practicable." In order to effect this right, the state is required to "consider all reasonable educational alternatives, including
single medium institutions, taking into account— equity; practicability; and the need to redress the results of past racially discriminatory laws and practices." Given
South Africa's linguistic diversity and the sensitivity of language policy, this provision has often been litigated; Finally, section 29(3) provides for a universal right of individuals "to establish and maintain, at their own expense,
independent educational institutions that— do not discriminate on the basis of race; are registered with the state; and maintain standards that are not inferior to standards at comparable public educational institutions." Under section 29(4), this provision "does not preclude state subsidies for independent educational institutions". The Constitutional Court considered the application of section 29(3) in
AB v Pridwin Preparatory School.
Culture, language, and communities Sections 30 and 31 consider further
cultural rights,
religious rights, and
linguistic rights. Section 30(1) provides that, "Everyone has the right to use the language and to participate in the cultural life of their choice". This freedom applies both in the
private sphere and in the
public sphere, since its application is not limited to any specific context; the Constitutional Court found in the
Certification judgment that the right to use the language of one's choice "would extend to communications with the government, subject to reasonable limitations where they would be warranted."'''' In
Christian Education, Justice
Albie Sachs pointed out, for a unanimous court, that section 31 "closely parallels"
article 27 of the
International Covenant on Civil and Political Rights, except that it refers to "communities" rather than "
minorities": thus, "the interest protected by section 31 is not a statistical one dependent on a counter-balancing of numbers, but a qualitative one based on respect for diversity".'''' Both section 30 and section 31 conclude with internal limitations in section 30(2) and 31(2) respectively; in each case, the limitation is the proviso that the rights referred to may not be exercised "in a manner inconsistent with any provision of the Bill of Rights". In respect of section 31(2), Sachs found in
Christian Education that the limitation sought "expressly to acknowledge the
supremacy of the Constitution", preventing associational rights from "being used to 'privatise' constitutionally offensive group practices" or to shield "oppressive features of internal relationships primarily within the communities concerned". In the
Certification judgment, the Constitutional Court held that section 32 envisaged access to state information as a means to "a wider purpose, namely, to ensure that there is open and accountable administration at all levels of government";'''' in subsequent jurisprudence in lower courts, it was similarly linked to the founding constitutional values of "accountability, responsiveness and openness". Section 32(2) of the Constitution requires the enactment of national
freedom of information legislation to give effect to the right of access to information, with due provision "for reasonable measures to alleviate the administrative and financial burden on the state". The legislation thus enacted was the
Promotion of Access to Information Act 2 of 2000 (PAIA). The Constitutional Court held in
My Vote Counts v Speaker that, under the principle of subsidiarity, section 32 rights are henceforth justiciable as claims under, or challenges to, PAIA.
Just administrative action Under the heading of "Just Administrative Act", section 33 provides for
administrative due process. Section 33(1) provides for a universal right "to administrative action that is lawful, reasonable and
procedurally fair", while section 33(2) requires that, "Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons." The tripartite requirements of section 33(1) were familiar in
South African administrative law as common-law principles, but were given new constitutional grounding by the Bill of Rights. In an early trilogy of cases –
Fedsure Life Assurance v Johannesburg,
President of the Republic of South Africa v South African Rugby Football Union, and
Nel v Le Roux – the Constitutional Court incrementally defined the scope of "administrative action", holding that it excludes
legislative action,
executive action, and
judicial action. Section 33(3) mandates the enactment of national legislation to give effect to the section 33 rights, adding that such legislation must, "provide for the review of administrative action by a court or, where appropriate, an independent and impartial tribunal; impose a duty on the state to give effect to the rights in subsections (1) and (2); and promote an efficient administration." The legislation thus enacted was the
Promotion of Administrative Justice Act 3 of 2000.
Access to courts Under the heading of "Access to Courts", section 34 enshrines a universal right to a
fair hearing of legal disputes. It provides that, "Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum". With section 32 and section 33, section 34 has been viewed as providing a category of "leverage right", a primarily procedural guarantee that allows litigants to leverage or vindicate their other (substantive) rights.'''' The court held in
S v Pennington that section 34 does not apply to
criminal proceedings, which are instead regulated by section 35.''
Other cases involving the interpretation and application of section 34 include Barkhuizen v Napier, Beinash v Ernst & Young
, Metcash Trading v Commissioner for the South African Revenue Service
, Armbruster v Minister of Finance
, and Mphahlele v First National Bank''.
Arrest, detention, and trial The longest section of the Bill of Rights, section 35 comprises a detailed list of rights which protect
due process in criminal proceedings. Section 35(1) outlines the rights of persons "arrested for allegedly committing an offence", while section 35(2) outlines the right of persons "detained, including every sentenced prisoner". Section 35(3) guarantees every accused person's
right to a fair trial, including,
inter alia, the right to
notice of the charge,
right to a public trial, the
right to a speedy trial, the
right to legal representation, the
right to be presumed innocent, the
right to silence, the
right against self-incrimination, the right against
double jeopardy (called
ne bis in idem in South African law), and the
right of appeal or review. Section 35(5) establishes an
exclusionary rule, under which, "
Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice." The Constitutional Court has interpreted this provision in cases including
S v Basson. Other landmark cases involving section 35 include
S v Dzukuda; S v Tshilo,
S v Singo,
S v Thebus, and
S v Bogaards. == Limitation of rights ==