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Chapter 1
Related Sections
1
INTRODUCTION
2
What is a Constitution?
3
What is a democracy?
4
DEVELOPMENT OF CONSTITUTIONS IN SOUTH AFRICA
5
CODESA
6
The Multi-Party Negotiating Process
7
The Constitutional Assembly (CA)
8
THE SOUTH AFRICAN CONSTITUTION
9
The relationship between the Constitution and other laws
10
Changing or amending the Constitution
11
The separation of powers
12
The spheres of government
13
SUMMARY OF THE CONSTITUTION
14
Preamble
15
Chapter 1: Founding provisions
16
Chapter 2: The Bill of Rights
17
Chapter 3: Cooperative government
18
Chapter 4: Parliament
19
Chapter 5: The President and the national executive
20
Chapter 6: Provinces
21
Schedule 4: Concurrent functional areas of National and Provincial legislatures
22
Schedule 5: Functional areas of Provincial legislatures
23
Chapter 7: Local government
24
Chapter 8: Courts and administration of justice
25
Chapter 9: State institutions that support constitutional democracy
26
Chapter 10: Public administration
27
Chapter 11: Security services
28
Chapter 12: Traditional authorities
29
Chapter 13: Finance
30
Chapter 14: General provisions
31
HUMAN RIGHTS
32
What are human rights?
33
Indivisibility of rights
34
Rights and responsibilities
35
Conflicts in rights
36
International documents on human rights
37
Creating a human rights culture in South Africa
38
SUMMARY OF THE SOUTH AFRICAN BILL OF RIGHTS
39
Section 7: Introduction
40
Chapter 8: Application of the Bill of Rights
41
Section 9: Right to Equality
42
Section 10: Right to human dignity
43
Section 11: Right to life
44
Section 12: Freedom and security of the person
45
Section 13: Slavery, servitude and forced labour
46
Section 14: Right to privacy
47
Section 15: Freedom of religion, belief and opinion
48
Section 16: Freedom of speech and expression
49
Section 17: Freedom of assembly, demonstration picket and petition
50
Section 18: Freedom of association
51
Section 19: Political rights
52
Section 20: Citizenship
53
Section 21: Freedom of movement and residence
54
Section 22: Freedom of trade, occupation and profession
55
Section 23: Labour relations
56
Section 24: Environment
57
Section 25: Property
58
Section 26: Right of access to housing
59
Section 27: Right of access to health care, food, water and social security
60
Section 28: Children’s rights
61
Section 29; Education
62
Section 30: Language and culture
63
Section 31: Cultural, religious and linguistic communities
64
Section 32: Access to information
65
Section 33: Just administrative action
66
Section 34: Access to courts
67
Section 35: Arrested, detained and accused persons
68
Section 36: Limitations on rights
69
Section 37: States of emergency
70
Section 38: Enforcing rights
71
Section 39: Interpreting the Bill of Rights
72
PROTECTING HUMAN RIGHTS
73
The Public Protector
74
South African Human Rights Commission (SAHRC)
75
Commission on Gender Equality (CGE)
76
Auditor General
77
Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (Cultural Rights Commission)
78
Independent Electoral Commission (IEC)
79
Independent Communications Authority of South Africa (ICASA)
80
Land Claims Commission (LCC)
81
PROBLEMS
82
Problem 1: Taking a case to the South African Human Rights Commission
83
Problem 2: Making a complaint to the Public Protector
84
Problem 3: Taking a case to the Commission on Gender Equality
85
CHECKLISTS
86
Checklist: Reporting human rights complaints

The relationship between the Constitution and other laws

The Constitution is a law passed by parliament and it is the highest law in the land. All other laws must follow it. Other laws are divided into statutes (laws or acts), common law and customary law:

Statutes are laws or acts which are made by government. Laws made by the national parliament are called acts of parliament, laws made by provincial legislatures are called ordinances, and laws made by municipal councils are called by-laws.

Common law means laws that have not been made by parliament or any other government. They are unwritten laws. Common law is based on Roman-Dutch law (laws that were brought by the Dutch when they arrived in South Africa). The courts used these laws and developed them when they made decisions (or set precedents).

Customary laws are also unwritten laws. They are laws that apply to certain cultures or ethnic groups.

All these laws have to follow the Constitution. In other words, they cannot go against what the Constitution says. So, new laws must follow the Constitution, and the government must change old laws or parts of old laws if they don’t follow the Constitution. If a customary law or common law goes against the Constitution, then a court will say it is invalid. In other words, it can’t apply in the situation.

EXAMPLE

In customary law, a biological father does not have automatic rights and responsibilities to his children. Rather, a father’s right to his biological children is linked to marriage and the question of lobola. If lobola was agreed then the child belongs to the father’s family. If it was not agreed, then the child belongs to the mother’s family. But in the case of Hlope v Mahlalela, the court did not approve of the role of lobola in deciding the responsibilities of parents and their rights and instead focused on the best interests of the child, which is a principle enshrined in the Constitution.