scholarly journals Towards A Bill of Rights for a Democratic South Africa

1991 ◽  
Vol 35 (1-2) ◽  
pp. 21-43 ◽  
Author(s):  
Albie Sachs
Keyword(s):  
South Africa ◽  
Human Rights ◽  
South African ◽  
Bill Of Rights ◽  
Equal Rights ◽  
World Community ◽  
African People ◽  
Constitutional Level ◽  
The World ◽  
The Individual

All revolutions are impossible until they happen; then they become inevitable. South Africa has for long been trembling between the impossible and the inevitable, and it is in this singularly unstable situation that the question of human rights and the basics of government in post-apartheid society demands attention.No longer is it necessary to spend much time analysing schemes to modernize, reform liberalize, privatize, or even democratize apartheid. Like slavery and colonialism, apartheid is regarded as irremediably bad. There cannot be good apartheid, or degrees of acceptable apartheid. The only questions are how to end the system as rapidly as possible and how to ensure that the new society which replaces it lives up to the ideals of the South African people and the world community. More specifically, at the constitutional level, the issue is no longer whether to have democracy and equal rights, but how fully to achieve these principles and how to ensure that within the overall democratic scheme, the cultural diversity of the country is accommodated and the individual rights of citizens respected.

Foreigners' Rights to Work and Fair Labour Practices in South Africa: A Review of the South African Labour Legislation and Jurisprudence

2020 ◽  
Vol 35 (1) ◽  
Author(s):  
Andre Mangu
Keyword(s):  
South Africa ◽  
Human Rights ◽  
South African ◽  
Bill Of Rights ◽  
The South ◽  
Legislation And Jurisprudence ◽  
Foreign Nationals ◽  
Lay Persons ◽  
Democratic State ◽  
Labour Legislation

After several decades of apartheid rule, which denied human rights to the majority of the population on the ground of race and came to be regarded as a crime against humanity, South Africa adopted its first democratic Constitution in the early 1990s. The 1996 Constitution, which succeeded the 1993 interim Constitution, is considered one of the most progressive in the world. In its founding provisions, it states that South Africa is a democratic state founded on human dignity, the achievement of equality, the advancement of human rights and freedoms. The Constitution enshrines fundamental human rights in a justiciable Bill of Rights as a cornerstone of democracy. Unfortunately, in the eyes of a number of politicians, officials and lay-persons, the rights in the Bill of Rights accrue to South African citizens only. Xenophobia, which has been rampant since the end of apartheid, seems to support the idea that foreigners should not enjoy these rights. Foreign nationals have often been accused of posing a threat to South African citizens with regard to employment opportunities. In light of the South African legislation and jurisprudence, this article affirms the position of the South African labour law that foreign nationals are indeed protected by the Constitution and entitled to rights in the Bill of Rights, including the rights to work and fair labour practices.

scholarly journals SOME COMMENTS ON WATER RIGHTS IN SOUTH AFRICA

2017 ◽  
Vol 8 (1) ◽  
pp. 1
Author(s):  
N Gabru
Keyword(s):  
South Africa ◽  
Human Rights ◽  
South African ◽  
Fresh Water ◽  
Human Life ◽  
Bill Of Rights ◽  
The South ◽  
Economic Rights ◽  
Basic Part ◽  
The Right

Human life, as with all animal and plant life on the planet, is dependant upon fresh water. Water is not only needed to grow food, generate power and run industries, but it is also needed as a basic part of human life. Human dependency upon water is evident through history, which illustrates that human settlements have been closely linked to the availability and supply of fresh water. Access to the limited water resources in South Africa has been historically dominated by those with access to land and economic power, as a result of which the majority of South Africans have struggled to secure the right to water. Apartheid era legislation governing water did not discriminate directly on the grounds of race, but the racial imbalance in ownership of land resulted in the disproportionate denial to black people of the right to water. Beyond racial categorisations, the rural and poor urban populations were traditionally especially vulnerable in terms of the access to the right.  The enactment of the Constitution of the Republic of South Africa 1996, brought the South African legal system into a new era, by including a bill of fundamental human rights (Bill of Rights). The Bill of Rights makes provision for limited socio-economic rights. Besides making provision for these human rights, the Constitution also makes provision for the establishment of state institutions supporting constitutional democracy.  The Constitution has been in operation since May 1996. At this stage, it is important to take stock and measure the success of the implementation of these socio-economic rights. This assessment is important in more ways than one, especially in the light of the fact that many lawyers argued strongly against 1/2the inclusion of the second and third generation of human rights in a Bill of Rights. The argument was that these rights are not enforceable in a court of law and that they would create unnecessary expectations of food, shelter, health, water and the like; and that a clear distinction should be made between first generation and other rights, as well as the relationship of these rights to one another. It should be noted that there are many lawyers and non-lawyers who maintained that in order to confront poverty, brought about by the legacy of apartheid, the socio-economic rights should be included in a Bill of Rights. The inclusion of section 27 of the 1996 Constitution has granted each South African the right to have access to sufficient food and water and has resulted in the rare opportunity for South Africa to reform its water laws completely. It has resulted in the enactment of the Water Services Act 108 of 1997 and the National Water Act 36 of 1998.In this paper the difference between first and second generation rights will be discussed. The justiciability of socio-economic rights also warrants an explanation before the constitutional implications related to water are briefly examined. Then the right to water in international and comparative law will be discussed, followed by a consideration of the South African approach to water and finally, a few concluding remarks will be made.

scholarly journals Socio-economic rights and women in South Africa: nothing but a handful of feathers?

2011 ◽  
Vol 7 (1) ◽  
Author(s):  
M K Ingle
Keyword(s):  
South Africa ◽  
Human Rights ◽  
Political Science ◽  
South African ◽  
Gender Studies ◽  
The State ◽  
Development Studies ◽  
Bill Of Rights ◽  
Economic Rights ◽  
South African Constitution

The Bill of Rights contained within South Africa’s Constitution features a number of ‘socio- economic rights’. Although these rights are justiciable they are subject to various limitations. They generally entail a positive onus on the part of the state to provide some good – not immediately, but ‘progressively’. Women have a direct interest in the realization of these rights and, where given effect to, they should exert a positive developmental impact. Some authorities are, however, of the opinion that socio-economic rights are not really enforceable. This article contends that the provision of social goods, by the state, should be the concomitant of the disciplined implementation of policy. Delivery should not therefore be contingent upon the legalistic vagaries of the human rights environment.Keywords: Socio-economic rights; justiciability; Bill of Rights; development; South African Constitution; womenDisciplines: Development Studies;Human Rights; Gender Studies; Political Science

Strategic Litigation in South Africa and Uganda: Shared Perspectives and Comparative Lessons

2020 ◽  
pp. 1-21
Author(s):  
John C Mubangizi
Keyword(s):  
South Africa ◽  
South African ◽  
Health Care Services ◽  
Bill Of Rights ◽  
Advocacy Groups ◽  
Care Services ◽  
The World ◽  
The Government ◽  
South African Constitution ◽  
Strategic Litigation

Abstract The South African Constitution, particularly its Bill of Rights, is regarded as one of the most progressive in the world. The Ugandan Constitution, adopted around the same time as its South African counterpart, also has a Bill of Rights. Lawyers and advocacy groups in both countries have taken advantage of their constitutions to challenge the government to enforce several rights ranging from health care services, education, water and sanitation, to housing and social security, albeit at a lower scale and with less impact and significance in Uganda than South Africa. The purpose of this paper is to discuss and determine the constitutional impact of strategic litigation in South Africa and Uganda. The paper begins with a conceptual context of strategic litigation. The specific reasons for the choice of the two countries are highlighted before focusing, in a comparative way, on some relevant organizations and the various court decisions that have emanated from strategic litigation in both countries. The paper identifies similarities and differences between Ugandan and South African approaches to strategic litigation. Conclusions are then made after highlighting the comparative lessons that both countries can learn from each other, but also what other African states can learn from these two countries’ experiences.

Symposium Editor's Introduction

1987 ◽  
Vol 5 (2) ◽  
pp. 259-262
Author(s):  
Lawrence G. Albrecht
Keyword(s):  
South Africa ◽  
South African ◽  
Trade Unions ◽  
Political Activity ◽  
Black Workers ◽  
State Of Emergency ◽  
Public Issue ◽  
World Community ◽  
The World ◽  
African Youth

Valparaiso University School of Law and the Christian Legal Society annually present a symposium on a critical public issue which is examined from a variety of perspectives. Between October 28-31, 1987, a major symposium was held entitled: “Perspectives on South African Liberation.” In the light of press and other media restrictions in effect since a state of emergency was declared in South Africa on June 12, 1986, and the banning of all political activity by 17 anti-apartheid organizations on February 24, 1988, it is crucial that the world community have access to current information and analysis concerning developments in that tragic land.The Pretoria regime has renewed the state of emergency for a third year following an unprecedented three-day nationwide protest strike on June 6-8 by more than two million black workers mobilized by the Congress of South African Trade Unions (COSATU) and other anti-apartheid groups to protest the recent bannings, a proposed restrictive labor bill, the continuation of apartheid and the regime's violence. These comments are written on June 16, the 12th anniversary of the Soweto student uprising (now commonly known as South African Youth Day) as several million black workers again defied the regime by staying away from work in honor of the hundred of blacks killed following the 1976 protests against apartheid education.

scholarly journals Neither Adopted nor Borrowed: A Critique of the Conception of the South African Bill of Rights

2020 ◽  
Vol 23 ◽  
pp. 1-26
Author(s):  
Felix Dube
Keyword(s):  
South Africa ◽  
Human Rights ◽  
South African ◽  
Bill Of Rights ◽  
The South ◽  
International Human Rights ◽  
South Africans ◽  
The People ◽  
Human Rights Movement ◽  
International Human

The failure of the post-apartheid government to deliver on some of the promises of the South African Bill of Rights, coupled with the appropriation of the Bill of Rights by the international human rights movement, create the impression that the Bill of Rights is a neo-liberal instrument which is irrelevant to the needs of South Africans and the realities of their circumstances. If the people of South Africa are convinced that the Bill of Rights embraces a Western agenda more than it expresses their collective aspirations, it will lose its legitimacy. While acknowledging that the conception of the Bill of Rights is contested between the international human rights movement and some South Africans, this article shows that the Bill of Rights was neither adopted nor borrowed from the international human rights movement. South Africans did not assimilate the International Bill of Rights but conceived their own Bill of Rights in the early decades of the 20th Century. The conception of the South African Bill of Rights was a response to colonialism and apartheid and was not a consequence of tutelage by the international human rights movement.

scholarly journals Universality of human rights and cultural diversity: A Perspective

2017 ◽  
Vol 6 (2) ◽  
pp. 157
Author(s):  
Leon Wessels
Keyword(s):  
South Africa ◽  
Human Rights ◽  
Cultural Diversity ◽  
South African ◽  
Common Humanity ◽  
The World ◽  
Universal Human Rights

This speech is an attempt to offer á perspective, given the particular circumstances4 that moulded my thinking. I will sketch the background and confine myself to the unfolding South African scene. The problem, which I will not try and resolve today, is that the different regions in the world and some commentators, also in South Africa, hold firm views. Universal human rights imply inclusiveness because it reflects our “common humanity”.6 This is determined and refined through interpretation and application by humankind at particular moments in time and history. Universality is much more than the determination by a majority at a particular moment because universal human rights “are the rights of all persons in the world”.

scholarly journals The Role Played by the South African Human Rights Commission's Economic and Social Rights Reports in Good Governance in South Africa

2017 ◽  
Vol 9 (2) ◽  
pp. 176
Author(s):  
D Horsten
Keyword(s):  
South Africa ◽  
Human Rights ◽  
South African ◽  
Good Governance ◽  
Social Rights ◽  
Constitutional Court ◽  
Bill Of Rights ◽  
The South ◽  
Economic Rights ◽  
The People

The preamble of the Constitution of South Africa, 1996 (the Constitution) contains the commitment to, amongst other things, 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 and improve the quality of life of all citizens and free the potential of each person.  One of the methods used to achieve these objectives is the inclusion of enforceable socio-economic rights in the Chapter 2 Bill of Rights. Despite numerous debates surrounding the issue of enforceability of socioeconomic rights, it has become evident that these rights are indeed enforceable.  Not only does section 7(2) of the Constitution place the state under an obligation to respect, protect, promote and fulfil all rights in the Bill of Rights, including socio-economic rights, but the Constitutional Court has in various decisions passed judgment on issues relating to socio-economic rights, underpinning the fact that these rights are indeed enforceable. 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.  The aim of this contribution is to assess these reports and to establish the degree to which they contribute to good governance in South Africa with reference to, inter alia, the constitutional mandate of the South African Human Rights Commission, the reporting procedure and the evaluation of reports.

Environmental Provisions in a New South African Bill of Rights

1993 ◽  
Vol 37 (2) ◽  
pp. 177-184
Author(s):  
Jan Glazewski
Keyword(s):  
South Africa ◽  
Human Rights ◽  
South African ◽  
Environmental Law ◽  
Vital Role ◽  
Bill Of Rights ◽  
Political Role ◽  
Parliamentary Sovereignty ◽  
Draft Bill ◽  
Future Direction

The question of human rights approaches to environmental protection is particularly pertinent in South Africa because its people are currently negotiating a set of constitutional principles which will lay the foundation for a future democratic and representative government in the country. The future direction of South African human rights law and environmental law particularly will be shaped by events in the near future as a new bill of rights is likely to include an environmental clause. The next few months will see the tabling of a set of constitutional principles and a draft bill of rights, the establishment of a transitional executive and elections for a constituent assembly. The latter body will finalize the form and content of a new constitution and bill of rights, drafts of which are currently being negotiated and circulated for comment by the political role players in the negotiating process. In broad constitutional terms, South Africa is departing from the Westminster model of parliamentary sovereignty on which its constitutional structure has been traditionally based and is moving towards the American model of public power being subjected to norms laid down in a bill of rights. The courts exercising their power of review will play a vital role in ensuring the success of the new dispensation. While the new bill of rights will obviously have vertical application, meaning that it will serve as a standard against which future parliamentary statutes will be measured, it is not yet clear whether it will also have horizontal application, whereby alleged contraventions of constitutional norms will be used by private legal persons in disputes between themselves.

South Africa, Human Rights and the United Nations

1982 ◽  
Vol 38 (3-4) ◽  
pp. 334-343
Author(s):  
Anirudha Gupta
Keyword(s):  
South Africa ◽  
Human Rights ◽  
United Nations ◽  
Racial Discrimination ◽  
General Assembly ◽  
World Community ◽  
United Nations General ◽  
The World ◽  
United Nations General Assembly ◽  
The United Nations

In South Africa's apartheid the United Nations has met with its own antithesis. For, apartheid repudiates almost universally everything that the United Nations stands for. It is not merely a “form of racial discrimination,”1 it is also a system that permanently denies, “through laws, administrative decrees and practices any…role for the 19 million Blacks (in South Africa) and confers on the 4.5 million Whites a monopoly of economic, political and social power,”2 Such a system, as stated by the International Court of Justice on the Namibian issue, “is a violation of a norm, or rule, or standard of the international community.”3 And, as the apartheid regime has over the years grown more aggressive both in its domestic and external policies, the world community has come to increasingly recognize the system to be a crime against humanity which “constitutes a serious threat to international peace and security.”4 The point is that despite its abhorrent “crimes,” South Africa continues to be a member of the. United Nations and, by logic therefore, also a member of the world community. This raises an interesting question: Should the United Nations in order to be consistent to its own Charter and declarations expel South Africa and technically resolve its anti-thesis in the system of apartheid? But would this be a real solution? Whether South Africa remains a member of the United Nations or not, the oppressed population under apartheid would still constitute apart of humanity. Hence, in order to liberate this “part” the world community must act in unison to uproot apartheid from the very face of the earth. This is enjoined as much by the Declaration on all Forms of Racial Discrimination adopted by the United Nations General Assembly in 1965 to the effect that: “any doctrine of differentiation or superiority is scientifically false, morally condemnable, socially unjust and dangerous, and that there is no justification for racial discrimination in theory or in practice anywhere.” If this declaration has to be given a practical effect, the United Nations must deny South Africa under apartheid all attributes of an independent sovereign state. For human rights, as enshrined by the two covenants of 1948, are indivisible; hence it would depend on lawyers and jurists to provide for such rules in international law as would forfeit the right of a state to exist until it restores social, economic and political rights of its citizens in consonance with the principal ethics of the international community. To combat apartheid, we must isolate its political reality from its territorial base. In other words, the United Nations must declare that South Africa, as a territory, ceases to exist so long as apartheid has not been completely eliminated! As we shall see, this is a distinction which has not been given proper attention in the numerous debates and deliberations of the United Nations General Assembly (UNGA) over the means to combat apartheid.

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