Section 7 Rights
(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.
Section 8 Application
(1) The Bill of Rights applies to all law, and binds the
legislature, the executive, the judiciary and all organs of state.
(2) A provision of the Bill of Rights binds a natural or a juristic
person if, and to the extent that, it is applicable, taking into
account the nature of the right and the nature of any duty
imposed by the right.
(3) When applying a provision of the Bill of Rights to a natural
or juristic person in terms of subsection (2), a court -
(a) in order to give effect to a right in the Bill, must apply, or
if necessary develop, the common law to the extent that
legislation does not give effect to that right; and
(b) may develop rules of the common law to limit the right,
provided that the limitation is in accordance with section 36(1).
(4) A juristic person is entitled to the rights in the Bill of Rights
to the extent required by the nature of the rights and the nature
of that juristic person.
Section 9 Equality
(1) Everyone is equal
before the law and has the right to
equal protection and benefit of the law.
(2) Equality includes the full and equal enjoyment of all rights
and freedoms. 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.
(3) The state may not unfairly discriminate directly or indirectly
against anyone on one or more grounds, including race, gender,
sex, pregnancy, marital status, ethnic or social origin, colour,
sexual orientation, age, disability, religion, conscience, belief,
culture, language and birth.
(4) No person may unfairly discriminate directly or indirectly
against anyone on one or more grounds in terms of subsection
(3). National legislation must be enacted to prevent or prohibit
unfair discrimination.
(5) Discrimination on one or more of the grounds listed in
subsection (3) is unfair unless it is established that the
discrimination is fair.
Section 10 Human dignity
Everyone has inherent dignity and the right to have their
dignity respected and protected.
Section 11 Life
Everyone has the right to life.
Section 12 Freedom and security of the person
(1) Everyone has the right to freedom and security of the
person, which includes the right -
(a) not to be deprived of freedom arbitrarily or without just
cause;
(b) not to be detained without trial;
(c) to be free from all forms of violence from either public or
private sources;
(d) not to be tortured in any way; and
(e) not to be treated or punished in a cruel, inhuman or
degrading way.
(2) Everyone has the right to bodily and psychological integrity,
which includes the right -
(a) to make decisions concerning reproduction;
(b) to security in and control over their body; and
(c) not to be subjected to medical or scientific experiments
without their informed consent.
Section 13 Slavery, servitude and forced labour
No one may be subjected to slavery, servitude or forced labour.
Section 14 Privacy
Everyone has the right to privacy, which includes the right not to
have -
(a) their person or home searched;
(b) their property searched;
(c) their possessions seized; or
(d) the privacy of their communications infringed.
Section 15 Freedom of religion, belief and opinion
(1) Everyone has the right to freedom of conscience, religion,
thought, belief and opinion.
(2) Religious observances may be conducted at state or state-aided
institutions, provided that -
(a) those observances follow rules made by the appropriate public
authorities;
(b) they are conducted on an equitable basis; and
(c) attendance at them is free and voluntary.
(3) (a) This section does not prevent legislation recognising -
(i) marriages concluded under any tradition, or a system of
religious, personal or family law; or
(ii) systems of personal and family law under any tradition, or
adhered to by persons professing a particular religion.
(b) Recognition in terms of paragraph (a) must be consistent with
this section and the other provisions of the Constitution.
Section 16 Freedom of expression
(1) Everyone has the right to freedom of expression, which
includes -
(a) freedom of the press and other media;
(b) freedom to receive or impart information or ideas;
(c) freedom of artistic creativity; and
(d) academic freedom and freedom of scientific research.
(2) The right in subsection (1) does not extend to -
(a) propaganda for war;
(b) incitement of imminent violence; or
(c) advocacy of hatred that is based on race, ethnicity, gender or
religion, and that constitutes incitement to cause harm.
Section 17 Assembly, demonstration, picket and petition
Everyone has the right, peacefully and unarmed, to assemble, to
demonstrate, to picket and to present petitions.
Section 18 Freedom of association
Everyone has the right to freedom of association.
Section 19 Political rights
(1) Every citizen is free to make political choices, which includes
the right -
(a) to form a political party;
(b) to participate in the activities of, or recruit members for, a
political party; and
(c) to campaign for a political party or cause.
(2) Every citizen has the right to free, fair and regular elections
for any legislative body established in terms of the Constitution.
(3) Every adult citizen has the right -
(a) to vote in elections for any legislative body established in
terms of the Constitution, and to do so in secret; and
(b) to stand for public office and, if elected, to hold office.
Section 20 Citizenship
No citizen may be deprived of citizenship.
Section 21 Freedom of movement and residence
(1) Everyone has the right to freedom of movement.
(2) Everyone has the right to leave the Republic.
(3) Every citizen has the right to enter, to remain in and to reside
anywhere in, the Republic.
(4) Every citizen has the right to a passport.
Section 22 Freedom of trade, occupation and profession
Every citizen has the right to choose their trade, occupation or
profession freely. The practice of a trade, occupation or
profession may be regulated by law.
Section 23 Labour relations
(1) Everyone has the right to fair labour practices.
(2) Every worker has the right -
(a) to form and join a trade union;
(b) to participate in the activities and programmes of a trade
union; and
(c) to strike.
(3) Every employer has the right -
(a) to form and join an employers" organisation; and
(b) to participate in the activities and programmes of an
employers" organisation.
(4) Every trade union and every employers" organisation has the
right -
(a) to determine its own administration, programmes and
activities;
(b) to organise; and
(c) to form and join a federation.
(5) Every trade union, employers" organisation and employer
has the right to engage in collective bargaining. National
legislation may be enacted to regulate collective bargaining. To
the extent that the legislation may limit a right in this Chapter,
the limitation must comply with section 36(1).
(6) National legislation may recognise union security
arrangements contained in collective agreements. To the extent
that the legislation may limit a right in this Chapter, the
limitation must comply with section 36(1).
Section 24 Environment
Everyone has the right -
(a) to an environment that is not harmful to their health or well-
being; and
(b) to have the environment protected, for the benefit of present
and future generations, through reasonable legislative and other
measures that -
(i) prevent pollution and ecological degradation;
(ii) promote conservation; and
(iii) secure ecologically sustainable development and use of
natural resources while promoting justifiable economic and
social development.
Section 25 Property
(1) No one may be deprived of property except in terms of
law of general application, and no law may permit arbitrary
deprivation of property.
(2) Property may be expropriated only in terms of law of
general application -
(a) for a public purpose or in the public interest; and
(b) 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.
(3) 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,
including -
(a) the current use of the property;
(b) the history of the acquisition and use of the property;
(c) the market value of the property;
(d) the extent of direct state investment and subsidy in the
acquisition and beneficial capital improvement of the property;
and
(e) the purpose of the expropriation.
(4) For the purposes of this section -
(a) the public interest includes the nation's commitment to land
reform, and to reforms to bring about equitable access to all
South Africa's natural resources; and
(b) property is not limited to land.
(5) The state must take reasonable legislative and other
measures, within its available resources, to foster conditions
which enable citizens to gain access to land on an equitable
basis.
(6) A person or community whose tenure of land is legally
insecure as a result of past racially discriminatory laws or
practices is entitled, to the extent provided by an Act of
Parliament, either to tenure which is legally secure or to
comparable redress.
(7) A person or community dispossessed of property after 19
June 1913 as a result of past racially discriminatory laws or
practices is entitled, to the extent provided by an Act of
Parliament, either to restitution of that property or to equitable
redress.
(8) No provision of this section may impede the state from
taking legislative and other measures to achieve land, water and
related reform, in order to redress the results of past racial
discrimination, provided that any departure from the provisions
of this section is in accordance with the provisions of section
36(1).
(9) Parliament must enact the legislation referred to in
subsection (6).
Section 26 Housing
(1) Everyone has the right to have access to adequate housing.
(2) The state must take reasonable legislative and other
measures, within its available resources, to achieve the
progressive realisation of this right.
(3) 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. No legislation may permit
arbitrary evictions.
Section 27 Health care, food, water and social security
(1) Everyone has the right to have access to -
(a) health care services, including reproductive health care;
(b) sufficient food and water; and
(c) social security, including, if they are unable to support
themselves and their dependants, appropriate social assistance.
(2) The state must take reasonable legislative and other measures,
within its available resources, to achieve the progressive
realisation of each of these rights.
(3) No one may be refused emergency medical treatment.
Section 28 Children
(1) Every child has the right -
(a) to a name and a nationality from birth;
(b) to family care or parental care, or to appropriate alternative
care when removed from the family environment;
(c) to basic nutrition, shelter, basic health care services and social
services;
(d) to be protected from maltreatment, neglect, abuse or
degradation;
(e) to be protected from exploitative labour practices;
(f) not to be required or permitted to perform work or provide
services that -
(i) are inappropriate for a person of that child's age; or
(ii) place at risk the child's well-being, education, physical or
mental health or spiritual, moral or social development;
(g) not to be detained except as a measure of last resort, in which
case, in addition to the rights a child enjoys under sections 12 and
35, the child may be detained only for the shortest appropriate
period of time, and has the right to be -
(i) kept separately from detained persons over the age of 18 years;
and
(ii) treated in a manner, and kept in conditions, that take account
of the child's age;
(h) 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; and
(i) not to be used directly in armed conflict, and to be protected
in times of armed conflict.
(2) A child's best interests are of paramount importance in every
matter concerning the child.
(3) In this section "child" means a person under the age of 18
years.
Section 29 Education
(1) Everyone has the right -
(a) to a basic education, including adult basic education; and
(b) to further education, which the state, through reasonable
measures, must make progressively available and accessible.
(2) 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 ensure the effective access to, and implementation of, this
right, the state must consider all reasonable educational
alternatives, including single medium institutions, taking into
account -
(a) equity;
(b) practicability; and
(c) the need to redress the results of past racially discriminatory
laws and practices.
(3) Everyone has the right to establish and maintain, at their own
expense, independent educational institutions that -
(a) do not discriminate on the basis of race;
(b) are registered with the state; and
(c) maintain standards that are not inferior to standards at
comparable public educational institutions.
(4) Subsection (3) does not preclude state subsidies for
independent educational institutions.
Section 30 Language and culture
Everyone has the right to use the language and to participate in
the cultural life of their choice, but no one exercising these rights
may do so in a manner inconsistent with any provision of the Bill
of Rights.
Section 31 Cultural, religious and linguistic communities
(1) Persons belonging to a cultural, religious or linguistic
community may not be denied the right, with other members of
that community -
(a) to enjoy their culture, practise their religion and use their
language; and
(b) to form, join and maintain cultural, religious and linguistic
associations and other organs of civil society.
(2) The rights in subsection (1) may not be exercised in a manner
inconsistent with any provision of the Bill of Rights.
Section 32 Access to information
(1) Everyone has the right of access to -
(a) any information held by the state; and
(b) any information that is held by another person and that is
required for the exercise or protection of any rights.
(2) National legislation must be enacted to give effect to this right,
and may provide for reasonable measures to alleviate the
administrative and financial burden on the state.
Section 33 Just administrative action
(1) Everyone has the right to administrative action that is lawful,
reasonable and procedurally fair.
(2) Everyone whose rights have been adversely affected by
administrative action has the right to be given written reasons.
(3) National legislation must be enacted to give effect to these
rights, and must -
(a) provide for the review of administrative action by a court or,
where appropriate, an independent and impartial tribunal;
(b) impose a duty on the state to give effect to the rights in
subsections (1) and (2); and
(c) promote an efficient administration.
Section 34 Access to courts
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.
Section 35 Arrested, detained and accused persons
(1) Everyone who is arrested for allegedly committing an offence
has the right -
(a) to remain silent;
(b) to be informed promptly -
(i) of the right to remain silent; and
(ii) of the consequences of not remaining silent;
(c) not to be compelled to make any confession or admission that
could be used in evidence against that person;
(d) to be brought before a court as soon as reasonably possible,
but not later than -
(i) 48 hours after the arrest; or
(ii) the end of the first court day after the expiry of the 48 hours,
if the 48 hours expire outside ordinary court hours or on a day
which is not an ordinary court day;
(e) at the first court appearance after being arrested, to be charged
or to be informed of the reason for the detention to continue, or
to be released; and
(f) to be released from detention if the interests of justice permit,
subject to reasonable conditions.
(2) Everyone who is detained, including every sentenced prisoner,
has the right -
(a) to be informed promptly of the reason for being detained;
(b) to choose, and to consult with, a legal practitioner, and to be
informed of this right promptly;
(c) to have a legal practitioner assigned to the detained person by
the state and at state expense, if substantial injustice would
otherwise result, and to be informed of this right promptly;
(d) to challenge the lawfulness of the detention in person before
a court and, if the detention is unlawful, to be released;
(e) to conditions of detention that are consistent with human
dignity, including at least exercise and the provision, at state
expense, of adequate accommodation, nutrition, reading material
and medical treatment; and
(f) to communicate with, and be visited by, that person's -
(i) spouse or partner;
(ii) next of kin;
(iii) chosen religious counsellor; and
(iv) chosen medical practitioner.
(3) Every accused person has a right to a fair trial, which includes
the right -
(a) to be informed of the charge with sufficient detail to answer it;
(b) to have adequate time and facilities to prepare a defence;
(c) to a public trial before an ordinary court;
(d) to have their trial begin and conclude without unreasonable
delay;
(e) to be present when being tried;
(f) to choose, and be represented by, a legal practitioner, and to
be informed of this right promptly;
(g) to have a legal practitioner assigned to the accused person by
the state and at state expense, if substantial injustice would
otherwise result, and to be informed of this right promptly;
(h) to be presumed innocent, to remain silent, and not to testify
during the proceedings;
(i) to adduce and challenge evidence;
(j) not to be compelled to give self-incriminating evidence;
(k) to be tried in a language that the accused person understands
or, if that is not practicable, to have the proceedings interpreted
in that language;
(l) not to be convicted for an act or omission that was not an
offence under either national or international law at the time it was
committed or omitted;
(m) not to be tried for an offence in respect of an act or omission
for which that person has previously been either acquitted or
convicted;
(n) to the benefit of the least severe of the prescribed punishments
if the prescribed punishment for the offence has been changed
between the time that the offence was committed and the time of
sentencing; and
(o) of appeal to, or review by, a higher court.
(4) Whenever this section requires information to be given to a
person, that information must be given in a language that the
person understands.
(5) 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.
Section 36 Limitation of rights
(1) The rights in the Bill of Rights may be limited only in terms
of law of general application to the extent that the limitation is
reasonable and justifiable in an open and democratic society based
on human dignity, equality and freedom, taking into account all
relevant factors, including -
(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.
(2) Except as provided in subsection (1) or in any other provision
of the Constitution, no law may limit any right entrenched in the
Bill of Rights.
Section 37 States of emergency
(1) A state of emergency may be declared only in terms of an Act
of Parliament, and only when -
(a) the life of the nation is threatened by war, invasion, general
insurrection, disorder, natural disaster or other public emergency;
and
(b) the declaration is necessary to restore peace and order.
(2) A declaration of a state of emergency, and any legislation
enacted or other action taken in consequence of that declaration,
may be effective only -
(a) prospectively; and
(b) for no more than 21 days from the date of the declaration,
unless the National Assembly resolves to extend the declaration.
The Assembly may extend a declaration of a state of emergency
for no more than three months at a time. The first extension of the
state of emergency must be by a resolution adopted with a
supporting vote of a majority of the members of the Assembly.
Any subsequent extension must be by a resolution adopted with a
supporting vote of at least 60 per cent of the members of the
Assembly. A resolution in terms of this paragraph may be adopted
only following a public debate in the Assembly.
(3) Any competent court may decide on the validity of -
(a) a declaration of a state of emergency;
(b) any extension of a declaration of a state of emergency; or
(c) any legislation enacted, or other action taken, in consequence
of a declaration of a state of emergency.
(4) Any legislation enacted in consequence of a declaration of a
state of emergency may derogate from the Bill of Rights only to
the extent that -
(a) the derogation is strictly required by the emergency; and
(b) the legislation -
(i) is consistent with the Republic's obligations under international
law applicable to states of emergency;
(ii) conforms to subsection (5); and
(iii) is published in the national Government Gazette as soon as
reasonably possible after being enacted.
(5) No Act of Parliament that authorises a declaration of a state of
emergency, and no legislation enacted or other action taken in
consequence of a declaration, may permit or authorise -
(a) indemnifying the state, or any person, in respect of any
unlawful act;
(b) any derogation from this section; or
(c) any derogation from a section mentioned in column 1 of the
Table of Non-Derogable Rights, to the extent indicated opposite
that section in column 3 of the Table.
Table of Non-Derogable Rights
| Section Number | Section Title | Extent to which the right is protected |
| 9 | Equality | With respect to unfair discrimination solely on the grounds of race, colour, ethnic or social origin, sex religion or language |
| 10 | Human Dignity | Entirely |
| 11 | Life | Entirely |
| 12 | Freedom and Security of the person | With respect to subsections (1)(d) and (e) and (2)(c). |
| 13 | Slavery, servitude and forced labour | With respect to slavery and servitude |
| 28 | Children | With respect to: -subsection (1)(d) and (e); -the rights in subparagraphs (i) and (ii) of subsection (1)(g); and -subsection 1(i) in respect of children of 15 years and younger |
| 35 | Arrested, detained and accused persons | With respect to: -subsections (1)(a), (b) and (c) and (2)(d); -the rights in paragraphs (a) to (o) of subsection (3), excluding paragraph (d) -subsection (4); and -subsection (5) with respect to the exclusion of evidence if the admission of that evidence would render the trial unfair. |
(6) Whenever anyone is detained without trial in consequence of
a derogation of rights resulting from a declaration of a state of
emergency, the following conditions must be observed:
(a) An adult family member or friend of the detainee must be
contacted as soon as reasonably possible, and informed that the
person has been detained.
(b) A notice must be published in the national Government Gazette
within five days of the person being detained, stating the
detainee's name and place of detention and referring to the
emergency measure in terms of which that person has been
detained.
(c) The detainee must be allowed to choose, and be visited at any
reasonable time by, a medical practitioner.
(d) The detainee must be allowed to choose, and be visited at any
reasonable time by, a legal representative.
(e) A court must review the detention as soon as reasonably
possible, but no later than 10 days after the date the person was
detained, and the court must release the detainee unless it is
necessary to continue the detention to restore peace and order.
(f) A detainee who is not released in terms of a review under
paragraph (e), or who is not released in terms of a review under
this paragraph, may apply to a court for a further review of the
detention at any time after 10 days have passed since the previous
review, and the court must release the detainee unless it is still
necessary to continue the detention to restore peace and order.
(g) The detainee must be allowed to appear in person before any
court considering the detention, to be represented by a legal
practitioner at those hearings, and to make representations against
continued detention.
(h) The state must present written reasons to the court to justify
the continued detention of the detainee, and must give a copy of
those reasons to the detainee at least two days before the court
reviews the detention.
(7) If a court releases a detainee, that person may not be detained
again on the same grounds unless the state first shows a court
good cause for re-detaining that person.
(8) Subsections (6) and (7) do not apply to persons who are not
South African citizens and who are detained in consequence of an
international armed conflict. Instead, the state must comply with
the standards binding on the Republic under international
humanitarian law in respect of the detention of such persons.
Section 38 Enforcement of rights
Anyone listed in this section has the right to approach a competent
court, alleging that a right in the Bill of Rights has been infringed
or threatened, and the court may grant appropriate relief,
including a declaration of rights. The persons who may approach
a court are:
(a) Anyone acting in their own interest;
(b) anyone acting on behalf of another person who cannot act in
their own name;
(c) anyone acting as a member of, or in the interest of, a group or
class of persons;
(d) anyone acting in the public interest; and
(e) an association acting in the interest of its members.
Section 39 Interpretation of Bill of Rights
(1) When interpreting the Bill of Rights, a court, tribunal or
forum -
(a) must promote the values that underlie an open and democratic
society based on human dignity, equality and freedom;
(b) must consider international law; and
(c) may consider foreign law.
(2) When interpreting any legislation, and when developing the
common law or customary law, every court, tribunal or forum
must promote the spirit, purport and objects of the Bill of Rights.
(3)The Bill of Rights does not deny the existence of any other
rights or freedoms that are recognised or conferred by common
law, customary law or legislation, to the extent that they are
consistent with the Bill.