UNIT 7-THE CONSTITUTION AND YOU:
INTRODUCTION:
The citizens of a country elect a government to run their country
They expect their government to protect their rights. They also expect their government to
develop and advance their country politically and economically.
Its also the responsibility of the government to look after the well-being of the country’s
inhabitants and to regulate matters such as health, the environment, education, tourism,
housing and population development.
There has to be some kind of balance between the powers of the state and the rights of the
individual.
If the government exceeds its power or make “unfair” laws or takes irresponsible decisions,
the individual must be able to challenge these actions.
WHAT IS A CONSTITUTION?
A constitution is usually a very long document which sets out the structure and functions of
government. It also sets out the standards that will be used to protect the individual against
any abuse of power by the state.
Most countries have constitutions that are written down.
There are a few countries that do not have a single written constitution.
These countries are governed by constitutional conventions and customs that have
developed over a long period of time
In SA we have a written constitution that was adopted in 1996.
WHAT IS CONTAINED IN THE 1996 CONSTITUTION:
Our constitution is detailed plan for the running of our country on a sound democratic basis.
In broad terms, it covers the following: governing of the country at national, provincial and
local level, and the legislative powers and processes at each of these levels; administrative of
justice by all different courts; rules relating to regular elections; functioning of the police,
army and other security services; the manner in which the finances of the country should be
managed; provisions regarding the powers of traditional leaders; as well as the
establishment of institutions to support our constitutional democracy. The Constitution also
sets out the 9 provinces of the country, the 11 official languages of the country, as well as
the national symbols.
Our Constitution has a Bill of Rights. The Bill of Right, which is found in Chapter 2 of the
Constitution, lists all the fundamental rights that are protected by our Constitution, for
example, the right to equality, the right to life, the right to freedom of religion.
WHY IS THE SA CONSTITUTION SO IMPORTANT?
1) THE SPIRIT AND AIM OF THE 1996 CONSTITUTION:
TRANSFORMATIVE CONSTITUTION: Means that the Constitution drives the process of social
and economic transformation by making provision for measures to address the injustices
and inequalities of the past. Some of these measures include affirmative action, protection
of socio-economic rights and prohibition of unfair discrimination. The 1993 interim
Constitution illustrated this transformative role of the Constitution clearly by stating that it
provides a historic bridge between the past of a deeply divided society characterised by
, strife, untold suffering and injustice, and a future founded on the recognition of human
rights, democracy and peaceful co-existence and development opportunities for all SA,
irrespective of colour, race, class, belief or sex.
TRANSFORMATIVE JUSTICE: All the transformative measures taken to eradicate the social
and economic injustices of the past, encapsulate the theory of “restorative justice”.
According to restorative justice, reconciliation, rather than retribution, is the focus in
addressing the injustices of the past dispensation.
UBUNTU: Means that “a person is a person because of others”. Ubuntu is “the African
world-outlook that one only becomes complete when others are appreciated,
accommodated and respective”. This concept is closely connected to transformative
constitutionalism and restorative justice, which aims to address the injustices of the past.
THE ROLE OF THE CITIZEN: We all expect a lot from the government. However, the people
also have a huge responsibility to make democracy work. Without input from its people, a
government cannot be expected to respond to the needs of society.
2) SPECIAL FEATURES OF THE 1996 CONSTITUTION:
The Constitution is the foundation of our democracy. To ensure that our democracy
succeeds, a number of special features have been built into it.
SUPREMACY OF THE CONSTITUTION: The Constitution very clearly states that it’s the
supreme law of the RSA. Everyone, every organisation or institution, as well as all law are
ruled by the Constitution. This notion that the law applies to everyone equally, is know as
the “rule of law”. In the past, parliament was supreme in the sense that it could make any
law it wanted to, no matter hoe unfair, as long as the correct procedure was followed. The
new Constitution introduced “constitutionalism”, which means that our country is rules
according to the Constitution, which is the supreme law of the land. All legislation may be
challenged in terms of the Constitution, in a court, and changed by parliament, if its found to
be inconsistent with the Constitution.
SEPARATION OF POWERS: Powers of the state are separated and divided into the following 3
sections: legislative authority that makes laws, judicial authority that decides legal disputes,
and executive authority that applies and carries out laws. Separation of powers is essential
in a democratic state, because if too much is concentrating one branch of the state, this may
easily lead to abuse. By giving certain specific functions to each of the 3 branches of
government, the separation of power ensures that the powers of each organ are kept in
check.
3) STRUCTURE OF THE JUDICIARY:
Judiciary deals with the courts. Main courts are the Constitutional Court, the Supreme Court
of Appeal, High Courts and Magistrates Courts.
The Constitutional Court has the final say in constitutional matters, that is, any issue that
relates to the interpretation, protection or enforcement of the Constitution.
When we say that the Constitutional Court has the “final say” in all constitutional matters, it
means the following: Constitutional Court is the final court that one would be able to appeal
to in a constitutional matter. In terms of section 167(5) of the 1996 Constitution, the
Constitutional Court makes the final decision on whether legislation is constitutional. If a
High Court or the Supreme Court of Appeal makes an order that certain legislation is
unconstitutional, such an order will only have force once it has been confirmed by the
Constitutional Court.
4) STATE INSTITUTIONS SUPPORTING DEMOCRACY:
In Chapter 9 of the 1996 Constitution, a number of state institutions are identified that were
set up to support our democracy.
, These institutions are the following: Public Protector; Auditor-General; Electoral
Commission; Human Rights Commission; Commission for Gender Equality; Independent
Authority to Regulate Broadcasting; and Commission for the Promotion and Protection of
the Rights of Cultural, Religious and Linguistic Communities.
5) THE BILL OF RIGHTS:
The Bill of Rights in Chapter 2 of the 1996 Constitution protects the fundamental rights that
each person has.
UNIT 8-THE BILL OF RIGHT: WHAT ARE FUNDAMENTAL RIGHTS?
, INTRODUCTION:
When the Bill of Rights was being written, it made sense for those who were writing it to
look at the constitutions of many other countries. It also made sense for them to take into
account our own history as well as a broad history of the world.
In this way, the writers could make sure that our Bill of Rights would prevent past human
rights abuses from happening again.
CATEGORIES OF FUNDAMENTAL RIGHTS:
FIRST-GENERATION RIGHT (BLUE RIGHTS): They are civil, procedural and political rights.
These are the rights that protect the individual from the abuse of state power. Examples of
such rights are the right to equality, the right to human dignity, the right to life, the right to
freedom of expression and the right to freedom and security of the person.
SECOND-GENERATION RIGHT (RED RIGHTS): They became important during the socialist
revolutions. They relate to socio-economic issues. These rights allow people to demand that
their basic socio-economic needs to be examined and dealt with by the government.
Examples of these right are the right to education and the right to access to health care
services and to sufficient food and water.
THIRD-GENERATION RIGHTS (GREEN RIGHTS): These rights have more to do with the group
that with the individual. Example is the right to clean air.
THE BILL OF RIGHTS IN PERSPECTIVE:
1) THE NATURE OF FUNDAMENTAL RIGHTS:
Every person has fundamental rights and the state can never take them away. In some
cases, the fundamental rights may be limited, but only if this is in agreement with the
provisions of the Bill of Rights.
Therefore the Bill of Rights starts with the following statement in section 7: The Bill of Rights
is a cornerstone of democracy in SA. It enshrines the rights of all people in our country and
affirms the democratic values of human dignity, equality and freedom. The state must
respect, protect and fulfil the rights in the Bill of Rights.
2) THE APPLICATION OF THE BILL OF RIGHTS:
VERTICAL APPLICATION: Its stated in the Bill of Rights that the Bill applies to all law and binds
the legislature, the executive, the judiciary and all organs of the state. This means that any
legislative act that infringes upon a fundamental rights may be challenged and declared
unconstitutional. This kind of application of the Bill of Rights is know as vertical application,
which means that it applies between the state and the individual.
HORIZONTAL APPLICATION: Some of the rights in the Bill of Rights may also have horizontal
application. This means that they apply between individuals od private institutions.
CHAPTER 2 OF THE CONSTITUTION OF THE REPUBLIC OF SA 108 OF 1996: BILL OF RIGHTS:
EQUALITY: All people are equal and must be treated equally.
LIFE: Everyone has the right to life. No-one can be sentenced to death by the courts.
HUMAN DIGNITY: The government must respect all people. People must respect each other.
FREEDOM AND SECURITY: No-one can be put in prison without good reason. No-one can be
held in jail without a court trial. No-one can be tortured. Everyone has the right to be free
from all forms of violence.
INTRODUCTION:
The citizens of a country elect a government to run their country
They expect their government to protect their rights. They also expect their government to
develop and advance their country politically and economically.
Its also the responsibility of the government to look after the well-being of the country’s
inhabitants and to regulate matters such as health, the environment, education, tourism,
housing and population development.
There has to be some kind of balance between the powers of the state and the rights of the
individual.
If the government exceeds its power or make “unfair” laws or takes irresponsible decisions,
the individual must be able to challenge these actions.
WHAT IS A CONSTITUTION?
A constitution is usually a very long document which sets out the structure and functions of
government. It also sets out the standards that will be used to protect the individual against
any abuse of power by the state.
Most countries have constitutions that are written down.
There are a few countries that do not have a single written constitution.
These countries are governed by constitutional conventions and customs that have
developed over a long period of time
In SA we have a written constitution that was adopted in 1996.
WHAT IS CONTAINED IN THE 1996 CONSTITUTION:
Our constitution is detailed plan for the running of our country on a sound democratic basis.
In broad terms, it covers the following: governing of the country at national, provincial and
local level, and the legislative powers and processes at each of these levels; administrative of
justice by all different courts; rules relating to regular elections; functioning of the police,
army and other security services; the manner in which the finances of the country should be
managed; provisions regarding the powers of traditional leaders; as well as the
establishment of institutions to support our constitutional democracy. The Constitution also
sets out the 9 provinces of the country, the 11 official languages of the country, as well as
the national symbols.
Our Constitution has a Bill of Rights. The Bill of Right, which is found in Chapter 2 of the
Constitution, lists all the fundamental rights that are protected by our Constitution, for
example, the right to equality, the right to life, the right to freedom of religion.
WHY IS THE SA CONSTITUTION SO IMPORTANT?
1) THE SPIRIT AND AIM OF THE 1996 CONSTITUTION:
TRANSFORMATIVE CONSTITUTION: Means that the Constitution drives the process of social
and economic transformation by making provision for measures to address the injustices
and inequalities of the past. Some of these measures include affirmative action, protection
of socio-economic rights and prohibition of unfair discrimination. The 1993 interim
Constitution illustrated this transformative role of the Constitution clearly by stating that it
provides a historic bridge between the past of a deeply divided society characterised by
, strife, untold suffering and injustice, and a future founded on the recognition of human
rights, democracy and peaceful co-existence and development opportunities for all SA,
irrespective of colour, race, class, belief or sex.
TRANSFORMATIVE JUSTICE: All the transformative measures taken to eradicate the social
and economic injustices of the past, encapsulate the theory of “restorative justice”.
According to restorative justice, reconciliation, rather than retribution, is the focus in
addressing the injustices of the past dispensation.
UBUNTU: Means that “a person is a person because of others”. Ubuntu is “the African
world-outlook that one only becomes complete when others are appreciated,
accommodated and respective”. This concept is closely connected to transformative
constitutionalism and restorative justice, which aims to address the injustices of the past.
THE ROLE OF THE CITIZEN: We all expect a lot from the government. However, the people
also have a huge responsibility to make democracy work. Without input from its people, a
government cannot be expected to respond to the needs of society.
2) SPECIAL FEATURES OF THE 1996 CONSTITUTION:
The Constitution is the foundation of our democracy. To ensure that our democracy
succeeds, a number of special features have been built into it.
SUPREMACY OF THE CONSTITUTION: The Constitution very clearly states that it’s the
supreme law of the RSA. Everyone, every organisation or institution, as well as all law are
ruled by the Constitution. This notion that the law applies to everyone equally, is know as
the “rule of law”. In the past, parliament was supreme in the sense that it could make any
law it wanted to, no matter hoe unfair, as long as the correct procedure was followed. The
new Constitution introduced “constitutionalism”, which means that our country is rules
according to the Constitution, which is the supreme law of the land. All legislation may be
challenged in terms of the Constitution, in a court, and changed by parliament, if its found to
be inconsistent with the Constitution.
SEPARATION OF POWERS: Powers of the state are separated and divided into the following 3
sections: legislative authority that makes laws, judicial authority that decides legal disputes,
and executive authority that applies and carries out laws. Separation of powers is essential
in a democratic state, because if too much is concentrating one branch of the state, this may
easily lead to abuse. By giving certain specific functions to each of the 3 branches of
government, the separation of power ensures that the powers of each organ are kept in
check.
3) STRUCTURE OF THE JUDICIARY:
Judiciary deals with the courts. Main courts are the Constitutional Court, the Supreme Court
of Appeal, High Courts and Magistrates Courts.
The Constitutional Court has the final say in constitutional matters, that is, any issue that
relates to the interpretation, protection or enforcement of the Constitution.
When we say that the Constitutional Court has the “final say” in all constitutional matters, it
means the following: Constitutional Court is the final court that one would be able to appeal
to in a constitutional matter. In terms of section 167(5) of the 1996 Constitution, the
Constitutional Court makes the final decision on whether legislation is constitutional. If a
High Court or the Supreme Court of Appeal makes an order that certain legislation is
unconstitutional, such an order will only have force once it has been confirmed by the
Constitutional Court.
4) STATE INSTITUTIONS SUPPORTING DEMOCRACY:
In Chapter 9 of the 1996 Constitution, a number of state institutions are identified that were
set up to support our democracy.
, These institutions are the following: Public Protector; Auditor-General; Electoral
Commission; Human Rights Commission; Commission for Gender Equality; Independent
Authority to Regulate Broadcasting; and Commission for the Promotion and Protection of
the Rights of Cultural, Religious and Linguistic Communities.
5) THE BILL OF RIGHTS:
The Bill of Rights in Chapter 2 of the 1996 Constitution protects the fundamental rights that
each person has.
UNIT 8-THE BILL OF RIGHT: WHAT ARE FUNDAMENTAL RIGHTS?
, INTRODUCTION:
When the Bill of Rights was being written, it made sense for those who were writing it to
look at the constitutions of many other countries. It also made sense for them to take into
account our own history as well as a broad history of the world.
In this way, the writers could make sure that our Bill of Rights would prevent past human
rights abuses from happening again.
CATEGORIES OF FUNDAMENTAL RIGHTS:
FIRST-GENERATION RIGHT (BLUE RIGHTS): They are civil, procedural and political rights.
These are the rights that protect the individual from the abuse of state power. Examples of
such rights are the right to equality, the right to human dignity, the right to life, the right to
freedom of expression and the right to freedom and security of the person.
SECOND-GENERATION RIGHT (RED RIGHTS): They became important during the socialist
revolutions. They relate to socio-economic issues. These rights allow people to demand that
their basic socio-economic needs to be examined and dealt with by the government.
Examples of these right are the right to education and the right to access to health care
services and to sufficient food and water.
THIRD-GENERATION RIGHTS (GREEN RIGHTS): These rights have more to do with the group
that with the individual. Example is the right to clean air.
THE BILL OF RIGHTS IN PERSPECTIVE:
1) THE NATURE OF FUNDAMENTAL RIGHTS:
Every person has fundamental rights and the state can never take them away. In some
cases, the fundamental rights may be limited, but only if this is in agreement with the
provisions of the Bill of Rights.
Therefore the Bill of Rights starts with the following statement in section 7: The Bill of Rights
is a cornerstone of democracy in SA. It enshrines the rights of all people in our country and
affirms the democratic values of human dignity, equality and freedom. The state must
respect, protect and fulfil the rights in the Bill of Rights.
2) THE APPLICATION OF THE BILL OF RIGHTS:
VERTICAL APPLICATION: Its stated in the Bill of Rights that the Bill applies to all law and binds
the legislature, the executive, the judiciary and all organs of the state. This means that any
legislative act that infringes upon a fundamental rights may be challenged and declared
unconstitutional. This kind of application of the Bill of Rights is know as vertical application,
which means that it applies between the state and the individual.
HORIZONTAL APPLICATION: Some of the rights in the Bill of Rights may also have horizontal
application. This means that they apply between individuals od private institutions.
CHAPTER 2 OF THE CONSTITUTION OF THE REPUBLIC OF SA 108 OF 1996: BILL OF RIGHTS:
EQUALITY: All people are equal and must be treated equally.
LIFE: Everyone has the right to life. No-one can be sentenced to death by the courts.
HUMAN DIGNITY: The government must respect all people. People must respect each other.
FREEDOM AND SECURITY: No-one can be put in prison without good reason. No-one can be
held in jail without a court trial. No-one can be tortured. Everyone has the right to be free
from all forms of violence.
